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Summary: Content moderation questions can come from all sorts of unexpected places — including custom soda bottle labels. Over the years, Coca Cola has experimented with a variety of different promotional efforts regarding more customized cans and bottles, and not without controversy. Back in 2013, as part of its “Share a Coke” campaign, the company offered bottles with common first names on the labels, which angered some who felt left out. In Israel, for example, people noticed that Arabic names were left off the list, although Coca Cola’s Swedish operation said that this decision was made after the local Muslim community asked not to have their names included.This controversy was only the preamble to a bigger one in the summer of 2021, when Coca Cola began its latest version of the “Share a Coke” effort — this time allowing anyone to create a completely custom label up to 36 characters long. Opening up custom labels immediately raised content moderation questions.Some people quickly noticed some surprising terms and phrases that were blocked (such as “Black Lives Matter”) while others that were surprisingly not blocked (like “Nazis”).As CNN reporter Alexis Benveniste noted, it was easy to get offensive terms through the blocks (often with a few tweaks), and there were some eye-opening contrasts:

Just a few days ago, Clearview -- the company that scrapes the web to build a facial recognition database it sells to law enforcement, government agencies around the world, and a number of private parties -- decided to make itself even less likable.It decided to subpoena transparency activists Open The Government, demanding copies of all FOIA requests it had made requesting info about Clearview. It also, more disturbingly, demanded copies of OTG's communications with journalists, clearly indicating it felt First Amendment protections were something it should enjoy, but shouldn't be extended to its critics.It really wasn't a step Clearview needed to take… for several reasons. First of all, Clearview's reputation is pure dog shit at the moment. It's unlikely to improve unless the company pulls the plug on its product and disbands. A move like this only earns it more (deserved) disdain and hatred. What it's not going to do -- even if successful -- is deter future criticism of the business and its scraped-together facial recognition product.Second, OTG was not a party to the lawsuit. Clearview has no right to demand these documents from a non-party, especially communications between it and journalists… journalists who are also not a party to the lawsuit Clearview is facing.Third, if Clearview wanted copies of OTG's FOIA requests, all it had to do is visit OTG's MuckRock page and download all of its publicly accessible requests and responses.There's some good news, though. Shortly after having shot itself in the face, Clearview had second thoughts about the self-inflicted wound it had just sustained. Here's Alexandra Levine for Politico.

More than ever, the Internet powers much of our daily life. From staying in touch with friends and family to our work, healthcare, banking, and education, we rely on it and we take for granted that it will always be there.But the way that the Internet was built and how it functions were never a fait accompli. An obscure statute—Section 230, a law enacted more than twenty-five years ago—is core to the Internet as we know it today. It’s also frequently misunderstood. In recent years, many critics of Big Tech from across the political spectrum point to Section 230 as the enabling force for a litany of harmful online content and abuses, some of whom contend that its abolition would immediately lead to a better Internet.In reality, Section 230 provides a wide range of non-Big Tech actors, including Internet intermediaries, limited immunity allowing them to operate without worrying about liability stemming from content created by others. This legal protection catalyzes and supports the growth of an amazing, vast array of innovative companies that make the Internet what it is today.There has been ample discussion already of the fundamentals of Section 230, some of it right here in the pages of Techdirt, so it would not be useful for me to go through it all once more. I think it is essential first to clearly identify and describe the key elements of what we collectively call “the Internet,” explaining where and how infrastructure companies fit in. before quickly touching on what Section 230 is and debunking 3 pernicious and persistent myths about it. I will close by giving you 6 real examples of activities that are actually protected by Section 230 and demonstrate why this law is so vital.The Internet and its infrastructureThe Internet as we know it can be broken down into three sectors: the transmission sector, the infrastructure sector, and the content sector.

Last year we noted how the calls to ban TikTok didn't make a whole lot of sense. For one thing, a flood of researchers have shown that TikTok is doing all the same things as many other foreign and domestic adtech-linked services we seem intent to...do absolutely nothing about.Secondly, the majority of the most vocal pearl-clutchers over the app (Josh Hawley, etc.) haven't cared a whit about things like consumer privacy or internet security, highlighting how the yearlong TikTok freak out was more about performative politics than policy. The wireless industry SS7 flaw? US cellular location data scandals? The rampant lack of any privacy or security standards in the internet of things? The need for election security funding?Most of the folks who spent last year hyperventilating about TikTok haven't made so much as a peep on these other subjects. Either you actually care about consumer privacy and internet security or you don't, and a huge swath of those hyperventilating about TikTok have been utterly absent from the broader conversation. In fact, many of them have done everything in their power to scuttle any effort to have even modest privacy guidelines for the internet era, and fought every effort to improve and properly fund election security. Again, that's because for many it's more about politics than serious, adult tech policy.After Trump Inc proposed banning TikTok, you'll recall the administration came up with another dumb idea. Basically, they suggested selling ByteDance-owned TikTok to Trump allies over at Oracle and Walmart. It was just glorified cronyism, though for whatever reason a lot of the press and policy circles seriously and meaningfully analyzed the move as if it was anything else. It wasn't, and quickly fell apart like the dumb house of cards it was.At one point Microsoft was tossed around as a potential suitor for TikTok as well. And in conversations this week with Kara Swisher, Microsoft CEO Satya Nadella confirmed the whole TikTok tapdance last year was every bit as stupid as we assumed it was. He's diplomatic about it, but Nadella notes how Trump's public posturing about TikTok wasn't backed by, well, anything:

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Wisconsin is apparently America's Karen.

We've already posted Mike's post about the problems with the SHOP SAFE Act that is getting marked up today, as well as Cathy's lamenting the lack of Congressional concern for what they're damaging, but Prof. Eric Goldman wrote such a thorough and complete breakdown of the problems with the bill that we decided that was worth posting too.[Note: this blog post covers Rep. Nadler’s manager’s amendment for the SHOP SAFE Act, which I think will be the basis of a committee markup hearing today. If Congress were well-functioning, draft bills going into markup would be circulated a reasonable time before the hearing, so that we can properly analyze them on a non-rush basis, and clearly marked as the discussion version so that we’re not confused by which version is actually the current text.]The SHOP SAFE Act seeks to curb harmful counterfeit items sold through online marketplaces. That’s a laudable goal that I expect everyone supports. However, this bill is itself a giant counterfeit. It claims to focus on “counterfeits” that could harm consumer “health and safety,” but those are both lies designed to make the bill seem narrower and more balanced than it actually is.Instead of protecting consumers, this bill gives trademark owners absolute control over online marketplaces by overturning Tiffany v. eBay. It creates a new statutory species of contributory trademark liability that applies to online marketplaces (defined more broadly than you think) selling third-party items that bear counterfeit marks and implicate “health and safety” (defined more broadly than you think), unless the online marketplace operator does the impossible and successfully navigates over a dozen onerous and expensive compliance obligations.Because the bill makes it impossible for online marketplaces to avoid contributory trademark liability, this bill will drive most or all online marketplaces out of the industry. (Another possibility is that Amazon will be the only player able to comply with the law, in which case the law entrenches an insurmountable competitive moat around Amazon’s marketplace). If you want online marketplaces gone, you might view this as a good outcome. For the rest of us, the SHOP SAFE Act will reduce our marketplace choices, and increase our costs, during a pandemic shutdown when online commerce has become even more crucial. In other words, the law will produce outcomes that are the direct opposite of what we want from Congress.In addition to destroying online marketplaces, this bill provides the template for how rightsowners want to reform the DMCA online safe harbor to make it functionally impossible to qualify for as well. In this respect, the SHOP SAFE Act portends how Congress will accelerate the end of the Web 2.0 era of user-generated content.[The rest of this post is 4k+ words explaining what the bill does and why it sucks. You might stop reading here if you don’t want the gory/nerdy details.]Who’s Covered by the BillThe bill defines an “electronic commerce platform” as “any electronically accessed platform that includes publicly interactive features that allow for arranging the sale or purchase of goods, or that enables a person other than an operator of the platform to sell or offer to sell physical goods to consumers located in the United States.”Clearly, the second part of that definition targets Amazon and other major marketplaces, such as eBay, Walmart Marketplace, and Etsy. I presume it also includes print-on-demand vendors that enable users to upload images, such as CafePress, Zazzle, and Redbubble (unless those vendors are considered to be retailers, not online marketplaces).The first part of the definition includes services with “publicly interactive features that allow for arranging the sale or purchase of goods.” This is a bizarre way to describe any online marketplace, and it covers something other than enabling third-party sellers (that’s the second part of the definition), so what services does this describe? Read literally, all advertising “allow[s] for arranging the sale or purchase of goods,” so this law potentially obligates every ad-supported publisher to undertake the content moderation obligations the bill imposes on online marketplaces. That doesn’t make sense, because the bill uses the undefined term “listing” 11 times, and display advertising isn’t normally considered to be a listing. Still, this wording is unusual and broad — and you better believe trademark owners like its breadth. If the bill wasn’t meant to regulate all ads, the bill drafters should make that clear.Like most Internet regulations nowadays, the bill distinguishes entities based on size. See my article with Jess Miers on how legislatures should do that properly. The bill applies to services that have “sales on the platform in the previous calendar year of not less than $500,000.” Some problems with this distinction:

As Congress takes up yet another ill-considered bill to deliberately create more risk of liability for Internet services, it is worth remembering something President Kennedy once said:

The manner in which content producers generally, and video game publishers specifically, handle art and content created by their biggest fans varies wildly. There's the Nintendo's of the world, where strict control over all things IP is favored over allowing fans to do much of anything with its properties. Other gaming companies at least allow fans to do some things with their properties, such as making let's play videos and that sort of thing. Still other gaming companies like Square have managed to let fans do some large and amazing projects with its IP.And then there is Chinese gaming studio miHoYo, makers of the hit title Genshin Impact, where the studio doesn't just allow fans to make their own art and merchandise... but also flatout tells them that they can go sell it, too.

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When modern copyright came into existence in 1710, it gave a monopoly to authors for just 14 years, with the option to extend it for another 14. Today, in most parts of the world, copyright term is the life of the creator, plus 70 years. That’s typically over a hundred years. The main rationale for this copyright ratchet – always increasing the duration of the monopoly, never reducing it – is that creators deserve to receive more benefit from their work. Of course, when copyright extends beyond their death, that argument is pretty ridiculous, since they don’t receive any benefit personally.But the real scandal is not so much that creators’ grandchildren gain these windfalls – arguably something that grandpa and grandma might approve of. It’s that most of the benefit of copyright goes to the companies that creative people need to work with – the publishers, recording companies, film studios, etc.One of the cleverest moves by the copyright industry was to claim to speak for the very people it exploits must brutally. This allows its lobbyists to paint a refusal to extend copyright, or to make its enforcement harsher, as spitting in the face of struggling artists. It’s a hard argument to counter, unless you know the facts: that few creators can make a living from copyright income alone. Meanwhile, copyright companies prosper mightily: some publishers enjoy 40% profit margins thanks to the creativity of others.By claiming to represent artists, copyright companies can also justify setting up costly new organisations that will supposedly channel more money to creators. In fact, as later blog posts will reveal, collecting societies have a record of spending the money they receive on fat salaries and outrageous perks for the people who run them. In the end, very little goes to the artists they are supposed to serve.EurActiv has a report about an interesting new copyright organization:

Disinformation continues to be a major topic of discussion across many fields, but a lot of what people believe about the subject is... questionable at best. One of the more thoughtful writers on the subject is Joe Bernstein from Buzzfeed News, whose recent cover story in Harper's brings a very different and valuable perspective to the debate. This week, he joins us on the podcast to discuss the glut of misconceptions and misinformation about disinformation.Additionally, as we recently announced, we'll be celebrating our upcoming 300th episode of the podcast with a live stream featuring the return of the original co-hosts Dennis Yang and Hersh Reddy, including (hopefully, barring technical issues) the ability for viewers who back our Patreon to call in live and ask questions. The stream will happen on Thursday, September 30th at 1pm PT/4pm ET — stay tuned for more details on how you can watch the stream, and be sure to back our Patreon if you want a chance to call in!Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Content moderation is a can of worms. For Internet infrastructure intermediaries, it’s a can of worms that they are particularly poorly positioned to tackle. And yet Internet infrastructure elements are increasingly being called on to moderate content—content they may have very little insight into as it passes through their systems.The vast majority of all content moderation happens on the “top” layer of the internet—such as social media and websites, places online that are the most visible to an average user. Platforms and applications moderate the content that gets posted on their platforms every day. If a post violates a platform’s terms of service, the post is usually blocked or taken down. If a user continues to post content that violates a platform’s terms, then the user’s account is often suspended. These types of content moderation practices are increasingly understood by average Internet users.Less often discussed or understood are the types of services facilitated via actors in the Internet ecosystem that both support and exist under the upper content layers of the Internet.Many of these companies host content, supply cloud services, register domain names, provide web security, and many more features of what could be described as the plumbing services of the Internet. But instead of water and sewage, the Internet deals in digital information. In theory, these “infrastructure intermediaries” could moderate content, but for reasons of convention, legitimacy, and practicality they don’t usually do it on purpose.However, some notable recent exemptions may be setting precedent.Amazon Web Services removed Wikileaks from their system in 2010. Cloudflare kicked off the Daily Stormer. An Italian court ordered Cloudflare to remove a copyright infringing site. Amazon suspended hosting for Parler.What does all this mean? Infrastructure may have the means to perform “content moderation,” but it is critical to consider the effects of this trend to prevent harming the Internet’s underlying architecture.In principle, Internet service providers, registries, cloud providers and other infrastructure intermediaries should be agnostic to the content which passes over their systems. Their business models have nothing to do with whether one is sending text, audio or video. Instead, they are meant to act as neutral intermediaries, providing a reliable service. In a sense, they operate the plumbing system that delivers the water. While we might engage a plumber to inspect and repair our pumps, do we feel comfortable relying on the plumber to check the quality of the water every minute of every day? Should the plumber be able to shut off water access indefinitely with no oversight?Despite this, big companies have made decisions to moderate content that is clearly out of their scope as infrastructure intermediaries. It begs the question: why? Were these actions to uphold some sort of moral authority or primarily on the business grounds of public perception? How comfortable are we with these types of companies “regulating” content in the absence of—or even at the behest of—governmental regulation?If these companies add content moderation to their responsibilities, it takes away the time and resources they can dedicate to security, reliability, and new features, some of which may even help fight reasons for wanting to moderate content. And while large companies may have the means, it adds an additional role outside of their original purview or mission that would be costly or unattainable for most startups or smaller companies.As pressure mounts from public opinion, regulators, and courts, we should recognize what is happening and properly understand where problems can be best addressed and what problems we don’t know enough about to warrant messing with the plumbing of the Internet just yet. Moreover, we should be wary of any regulation which may turn to infrastructure intermediaries explicitly to moderate content.Asking an infrastructure intermediary to moderate content would be like asking the waiter to cook the meal, the pilot to repair the plane, or the police officer to serve as the judge. Even if it were possible, we must ask whether it is truly an acceptable approach.The Internet is often referred to as a layered architecture because it is comprised of different types of infrastructure and computer entities. Expecting them to each moderate content indiscriminately would be problematic. Who would they be accountable to?A core idea often proposed is that content moderation should occur at the highest available layer, closest to the user. Some even argue that content moderation below this, in the realm of infrastructure, is more problematic because these companies cannot easily moderate a single content item. Infrastructure needs to work at scale, and moderating a single piece of content may mean effectively turning off a water main to fix a dripping faucet. That is, infrastructure companies often have to paint with a broader brush by removing an entire user or an entity’s access to their service.These broad strokes of moderation are often deep and wide in their effect, and critics argue they go too far. Losing access to a system is clearly more final than having a single item removed from a system.Georgia Evans summarized the problem well, saying “the deeper into the stack a company is situated, the less precise and more extreme their actions against harmful content are.” For this reason, Corinne Cath refers to them as reluctant sheriffs and political gatekeepers. These are important complexities which must be woven into any understanding of deep-layer moderation by Internet infrastructure companies and policymakers.The tech community and policy makers must ensure that no policy proposals unintentionally require the plumber’s legal role to include quality assurance and access determination. In the realm of the Internet, certain actors have certain functions and things work in a modular, interoperable way by design. The beauty of the Internet is that no one company or entity must “do it all” to achieve a better Internet. But, we must also ensure that new demands for additional functionality—e.g., moderation—are situated at the right layer and target the party with the expertise and role most likely to do a careful job.Policymakers must consider the unintended impacts of content moderation proposals on infrastructure intermediaries. Legislating without due diligence to understand the impact on the unique role of these intermediaries could be detrimental to the success of the Internet, and an increasing portion of the global economy that relies on Internet infrastructure for daily life and work.Conducting impact assessments prior to regulation is one way to mitigate the risks. The Internet Society created the Internet Impact Assessment Toolkit to help policymakers and communities assess the implications of change—whether those are policy interventions or new technologies.Policy changes that impact the different layers of the Internet are inevitable. But we must all ensure that these policies are well crafted and properly scoped to keep the Internet working and successful for everyone.Austin Ruckstuhl is a Project & Policy Advisor at the Internet Society where he works on Internet impact assessments, defending encryption and supporting Community Networks as access solutions.Techdirt and EFF are collaborating on this Techdirt Greenhouse discussion. On October 6th from 9am to noon PT, we'll have many of this series' authors discussing and debating their pieces in front of a live virtual audience (register to attend here). On October 7th, we'll be hosting a smaller workshop focused on coming up with concrete steps we can take to make sure providers, policymakers, and others understand the risks and challenges of infrastructure moderation, and how to respond to those risks.

Being consistent is hard. Just ask John Stossel, libertarian news commentator and self-proclaimed supporter of free markets and deregulation.Here's John touting the power of free markets to route around perceived "censorship" by platforms engaging in moderation:

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As you may know, we’re fast approaching our 300th episode of the podcast, and to celebrate we’re bringing back the original co-hosts, Dennis Yang and Hersh Reddy, to join Mike Masnick for a special live-streamed episode this Thursday, September 30th at 1pm PT / 4pm ET.Stay tuned on Thursday morning when we’ll be sharing a link to the YouTube live stream here on the blog and on Twitter. But, for our backers on Patreon, we’re also testing out a new feature that will allow you to call in live and talk to the hosts! If you're already a backer, you can find the link to join via our recording and call-in platform on Patreon in your message inbox and in a backers-only post on our page. If not, now's the time to become a patron and get access to this and other special bonuses! This is the first time we’ve experimented with this feature, so we’re anticipating the possibility of technical issues that prevent it from working — but if all goes well, we’re excited to field your questions and celebrate 300 episodes of The Techdirt Podcast!

'Tis the season for terrible, horrible, no good bills to destroy the open internet. First up, we've got Rep. Jerry Nadler, a close friend of the always anti-internet lobbying force that is the legacy copyright industries. Earlier this year he introduced the SHOP SAFE Act, which is due for a markup tomorrow, and has an unfortunately high likelihood of passing out of committee. The principle behind the Act (which Nadler has now updated with a manager's amendment) is that "something must be done" about people buying counterfeit goods online.Not addressed, at all, is whether or not counterfeit goods online are actually a real problem. I know that industry folks always insist that counterfeiting is a scourge that costs billions, but actual research on this shows something different entirely. A GAO report from years back showed that most of the stats regarding counterfeiting are completely exaggerated and multiples studies have shown that -- far from "tricking" people -- most people who buy counterfeits know exactly what they're doing, and that for many buyers, buying a counterfeit is an aspirational purchase. That is, they know they're not buying the real thing, but they're buying the counterfeit because that's what they can afford -- and if they can afford the real thing at a later date, they will buy it. But nearly all of the public commentary on counterfeiting assumes that the public is clueless, and being "tricked" into buying "dangerous" counterfeits.The second bad premise behind the SHOP SAFE Act is that the "real problem" is Section 230 (because everyone wants to assume that Section 230 can be blamed for anything bad online). So the core approach of the SHOP SAFE Act is to add liability to websites that allow people to sell stuff online. However, as EFF notes in its write up about the problems with this bill, if you try to sell something via Craigslist or even just via Gmail, the bill would effectively make those companies liable for your sale.

While Apple may be attempting to make being marginally competent at privacy a marketing advantage in recent years, that hasn't always gone particularly smoothly. Case in point: the company's new "ask app not to track" button included in iOS 14.5 is supposed to provide iOS users with some protection from apps that get a little too aggressive in hoovering up your usage, location, and other data. In short, the button functions as a more obvious opt out mechanism that's supposed to let you avoid the tangled web of privacy abuses that is the adtech behavioral ad ecosystem.But of course it's not working out all that well in practice, at least so far. A new study by the Washington Post and software maker Lockdown indicates that many app makers are just...ignoring the request entirely. In reality, Apple's function doesn't really do all that much, simply blocking app makers from accessing one bit of data: your phone's ID for Advertisers, or IDFA. But most apps have continued to track a wide swath of other usage and location data, and the overall impact on user privacy has proven to be negligible:

The Department of Justice is the nominal leader of US law enforcement, even if it really only has direct control of federal officers. That being said, it would have been nice to see the DOJ take the lead on law enforcement issues, rather than gently coast into the police reform driveway late in the proverbial night to add itself to the bottom of the list of reform efforts springing up all over the nation in response to, you guessed it, violence committed by police officers.Chokeholds have been controversial for forever, but even more so in recent years, as police officers across the nation have killed people they were just supposed to be arresting, using techniques most police departments claim (often after the fact) they've banned for years. The DOJ has never banned chokeholds previously, and it's apparently not going to start now.The new guidance [PDF] doesn't seem like much of an improvement over the old guidance, which was released more than 17 years ago. The old one said that the DOJ has had a "long-standing policy" that limits use of deadly force to situations where officers have a "reasonable belief" the arrestee "poses an imminent danger of death or serious physical injury to the officer or to another person." This is the same standard that governs almost all use of force by officers all over the nation and it really hasn't stopped them from deploying deadly force unreasonably in situations that could have benefitted from de-escalation and restraint.The revamped guidance doesn't change much, if anything, about the threat calculus officers must perform before deciding to kill someone by choking them to death.

It's no secret that we haven't been huge fans of the termination rights that exist in current copyright law. Not because we don't want original artists to be able to profit from their own work, of course. Rather, the problems are that copyright is already simply too long, which makes the termination issue far too often not about artists themselves profiting from their work, but rather about their families doing so. Add to that the more salient issue that these termination rights tend to be mostly useful for creating massive messes and disputes between parties over the validity of termination requests and the fact is that this stuff gets really icky really fast.But, the current reality is that termination rights in the law exist, so there is no reason why creators shouldn't use that part of the law. You may recall that a decade ago Marvel was hit by a series of termination requests for copyrights on all kinds of superhero stories and characters by Jack Kirby. Kirby's estate lost in court every step of the way up to the Supreme Court, with Marvel arguing that all of Kirby's work was work for hire, but Marvel and the estate reached a settlement before SCOTUS could take up the case. For termination requests for work that occurred prior to the Copyright Act of 1976 coming into force, how those requests should be ruled upon is still an open question.But perhaps we have another shot at getting clarity on this and, what do you know, it concerns Marvel yet again. Another creator has petitioned for termination on some specific copyrights around Spider-Man and Doctor Strange.

There's been little doubt that the streaming TV revolution has been a decidedly good thing. Competition from streaming has resulted in more options, for less money, and greater programming flexibility than ever before. Streaming customer satisfaction is consistently higher than traditional cable TV as a result, and lumbering giants that fought against evolution for years (at times denying that cord cutting even existing) have been forced to actually try a little harder if they want to retain TV subscribers.Of course the more things change, the more they stay the same. And a lot of the problems that plagued the traditional TV experience have made their way to streaming. For example, since broadcasters (which were primarily responsible for the unsustainable cost of traditional cable TV) must have their pound of flesh to satiate investor needs for quarterly returns, price hikes in live streaming service have been arriving fast and furiously. And the more the industry attempts to innovate, the more it finds itself retreading fairly familiar territory.Case in point: to lure more users to its platforms and streaming hardware, Google is in talks with multiple companies to offer users free streaming TV channels, complete with ads:

The police in Minneapolis are giving the public what they think the public wants: fewer police officers, fewers interactions with police, and, of course, MOAR CRIME. Calls to defund the police began following the murder of George Floyd by police officer Derek Chauvin. Law enforcement officers expressed disdain (rather than dismay their actions had provoked this), asking rhetorically who would show up to tell people there isn't much officers can (or will!) do in response to reported crimes.The disingenuous interpretation provided by most police departments was "Fuck 'em." Let the city fall into criminal chaos if residents continued to express their opposition to excessive force and rights violations. The application of the "defund the police" mentality by the Minneapolis PD is every bit as disingenuous as cop supporters' interpretations of "defund the police" movements -- ones that generally only want to move resources being used poorly by police departments to other entities more suited to handling common calls, like people suffering from suicidal thoughts or mental breakdowns.Because the cops can't be honest about their own contribution to the current state of affairs in Minneapolis, they're giving residents the part that's easiest to do (fewer cops handling fewer crimes) without doing the difficult part (relinquishing their paychecks). An investigation by Reuters reporter Brad Heath shows cops are doing less cop stuff in the Twin Cities while still collecting the same salaries they always have.

In August, porn-subscription platform OnlyFans announced that it would no longer permit pornography, blaming pressure from banks. The porn policy was rescinded after a backlash from platform users, but the incident illustrates how a handful of heavily regulated financial service providers can act as meta-moderators by shaping the content policies of platforms that rely on them.How did banks acquire such power over OnlyFans? Although people sometimes express themselves for free, they usually demand compensation. Polemicists, scientists, poets, and, yes, pornographers all need a paying audience to put food on their tables. Unless the audience is paying in cash, their money must move through payment processors, banks, and other financial intermediaries. If no payment is processed, no performance will be forthcoming.OnlyFans relies on financial intermediaries in several ways. It must be able to accept payments from users, send payments to content creators, and raise capital from investors. Each of these activities requires the services of a bank or payment processor. In an interview with the Financial Times, OnlyFans CEO Tim Stockey pointed to banks’ refusals to process payments to content creators as the pressure behind the proposed policy change.“We pay over one million creators over $300m every month, and making sure that these funds get to creators involves using the banking sector,” he said, singling out Bank of New York Mellon as having “flagged and rejected” every wire connected to the company, “making it difficult to pay our creators.”BNY Mellon processes a trillion dollars of transfers a day. At this scale, OnlyFans’ $300 million a month in creator payments could be lost in a rounding error. Like individual users on massive social media platforms, the patronage of any one website or business doesn’t matter to financial intermediaries. Banks often refuse service to the sex industry because of its association with illegal prostitution. In the face of bad press or potential regulatory scrutiny, it is usually easier, and in the long run, cheaper, to simply sever ties with the offending business.This leaves an excluded firm like OnlyFans with few options. OnlyFans cannot simply become a payment processor. Financial intermediaries are heavily regulated. OnlyFans is unlikely to clear the regulatory hurdles, and even if it could, compliance with anti-money laundering laws would strip its users of anonymity.Financial intermediaries are uniquely positioned to police speech because they are heavily regulated. While Section 230 keeps the costs of starting a speech platform low, banking regulation makes it difficult and expensive to enter the financial services market. There are hundreds of domain registrars, but only a handful of major payment processors. This disparity makes the denial of payment processing one of the most effective levers for controlling speech.Banks have the same rights of conscience as other firms, but regulation gives their decisions added weight. Financial intermediaries are in the business of making money, not curating for a particular audience, so they have less incentive to moderate than publishers. However, when financial intermediaries moderate, regulation prevents alternative service providers from entering the market.Peer-to-peer payment systems, such as cryptocurrency, offer a solution that circumvents intermediaries entirely. However, cryptocurrency has proven difficult to use as money at scale. OnlyFans was able to grow to its current size through access to the traditional banking system. At this stage, it cannot easily abandon it. OnlyFans would lose many users if it required buyers and sellers to maintain cryptocurrency wallets. The platform’s current investors would likely balk at issuing a token to raise additional capital. Decentralized alternatives are, for the moment, unworkably convoluted.While financial intermediaries’ power to moderate is not absolute, they can keep unwanted speech at the fringes of society and prevent it from being very profitable. This is not merely a problem for porn. Many sorts of legal but disfavored speech are vulnerable to financial deplatforming. Gab, a social media platform popular with the alt-right, has been barred from PayPal, Venmo, Square, and Stripe. It eventually found a home with Second Amendment Processing, an alternative payment processor originally created to serve gun stores.Commercial banks have faced pressure to cease serving gun stores from both activists and the government in Operation Choke Point. Operation Choke Point sought to discourage banks from serving porn actors, payday lenders, gun merchants, and a host of other “risky” customers. The FDIC threatened banks with “unsatisfactory Community Reinvestment Act ratings, compliance rating downgrades, restitution to consumers, and the pursuit of civil money penalties,” if they failed to follow the government’s risk guidance. Operation Choke Point officially ended in 2017, but it set the tone for banks’ treatment of covered businesses. Because the banking sector is highly regulated, it is very susceptible to informal government pressure—regulators have many ways to interfere with disobedient banks.In 2011, when Wikileaks published a trove of leaked State Department cables, Senator Joe Lieberman pressured nearly every service Wikileaks used to ban the organization. Wikileaks was deplatformed by its web host, its domain name service, and even its data visualization software provider. Bank of America, VISA, MasterCard, PayPal, and Western Union all prohibited donations to Wikileaks. Wikileaks was able to quickly move to European web hosts and domain name services beyond the reach of Senator Lieberman. But even Swiss bank PostFinance refused Wikileaks’ business. Unlike foreign web hosting and domain registration services, foreign banks are still part of a global financial system for which America largely sets the rules.Denied access to banking services, Wikileaks became an early adopter of Bitcoin. Simply sending money to a small organization was simple enough that even in 2011, Bitcoin could offer Wikileaks a viable alternative to the traditional financial system. It also probably helped that Wikileaks’ cause was popular with the sort of people already using Bitcoin in 2011.While cryptocurrency has come a long way in the past decade, adoption is still limited, and alternatives to traditional methods of raising capital are still in their infancy. Bitcoin offered Wikileaks a way out, and some OnlyFans content creators may turn to decentralized alternatives. But as a business, OnlyFans remains at the mercy of the banking industry. Financial intermediaries cannot stamp out disfavored speech, but they can cap the size of platforms that host it. Sitting behind and above the commercial internet, payment processors and banks retain a unique capability to set rules for platforms, and, in turn, platform users.Will Duffield is a Policy Analyst at the Cato InstituteTechdirt and EFF are collaborating on this Techdirt Greenhouse discussion. On October 6th from 9am to noon PT, we'll have many of this series' authors discussing and debating their pieces in front of a live virtual audience (register to attend here). On October 7th, we'll be hosting a smaller workshop focused on coming up with concrete steps we can take to make sure providers, policymakers, and others understand the risks and challenges of infrastructure moderation, and how to respond to those risks.

Clearview is currently being sued by a small percentage of its database of scraped personal info. It is also being sued by a few state officials over privacy law violations. It is (also) also being side-eyed closely by the federal government, which has not initiated an official investigation, but has expressed its disappointment in legislative ways.One of dozens of lawsuits Clearview is hopefully being eventually bankrupted by has resulted in a bit of the old intimidation tactics. Clearview has made some inadvertently amusing arguments in court about its alleged right to do whatever the hell it wants to amass secondhand data as well as market access to whoever the hell it wants whenever the hell it wants. We'll see how that all plays out. In the meantime, Clearview is hoping to make others as miserable as it is. And if that means doing terrible things to long-recognized First Amendment protections, so be it.Transparency advocate Open The Government has been hit with a subpoena from Clearview, which is defending itself against several plaintiffs alleging state law violations in an Illinois-based class action lawsuit. With its livelihood being barely threatened by an ongoing suit, Clearview has decided to threaten Open the Government, which is not involved in the lawsuit in any way.

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As CIA director, Mike Pompeo decided Julian Assange and Wikileaks should be promoted to Public Enemy #1. With Wikileaks leaking leaked CIA secrets, Pompeo ratcheted up his rhetoric in response to the leaks. Finding himself frustrated by the US government's understandable reluctance to pull the trigger on prosecutions of arguable acts of journalism, the CIA director decided those constitutional concerns could be waved away with the proper national security designation.During a 2017 speech at the Center for Strategic and International Studies, Pompeo -- who supported Wikileaks when it was airing the Democratic National Committee's dirty laundry -- unilaterally decided Assange was a threat unworthy of any constitutional protections.

This week, our first place winner on the insightful side is David with a comment on our post about the Russian government abusing the law to shut down Alexey Navalny's smart voting app:

Five Years AgoThis week in 2016, Donald Trump was doubling down on Ted Cruz's argument for blocking the transition of the IANA away from the commerce department (not the only stupid argument on the subject), but the Senate came to its senses and did not support the plan. The House Intelligence Committee released a list of "Snowden's Lies" that was almost entirely false, while the Washington Post was condemning Snowden and we wondered if it would give back its Pulitzer Prize, while Chelsea Manning was facing indefinite solitary confinement after a suicide attempt. The man arrested over KickassTorrents was being blocked from talking to his US attorney, while a former UMG executive was calling for the destruction of the DMCA. And we took a closer look at the more complex reasons for ridiculous bogus takedown demands in mass DMCA filings.Ten Years AgoThis week in 2011, Righthaven was failing to pay attorney fees ordered by the court and we looked at what would happen if the company declared bankruptcy. A lawyer was seeking to wipe out critical anonymous speech, the Authors Guild was trying to play "gotcha" with orphaned works instead of fixing the problem, and we looked at the entertainment industry's coordinated effort to blame third parties for piracy. In Italy, a proposed law would ban people from the internet based on a single accusation of infringement, leading an EU Parliament Member to ask the EU Commission what it would do if the law passed — while the Commissioner was busy asking big copyright to increase its lobbying efforts.Fifteen Years AgoThis week in 2006, Warner Music took the lead in signing deals with YouTube, while Microsoft was launching a YouTube copycat site (leading us to remember that, a few months prior, Bill Gates had explained why Microsoft would never try to do that). A Belgian court ordered Google to stop linking to news websites, prompting the company to fight back and hit a wall. Yahoo was timidly experimenting with DRM-free music, while the press was noticing how disappointing the early online video offerings from Apple and Amazon were. And, twenty years after the fact, The Knack noticed that their song My Sharona had been sampled by Run DMC and filed a very late lawsuit.

We've written a couple of times about the Consorzio di Tutela della Denominazione di Origine Controllata Prosecco, whom I have nicknamed "The Prosecco People" because I'm not typing that every time. This organization with the sole goal of protecting the "Prosecco" name from being used, or nearly used, by anyone else has taken this mission to extreme lengths historically. Serving as examples were such times as The Prosecco People opposing a French company's non-alcoholic sparkling wine brand dubbed "Nosecco", as well as bullying a pet treat company that created a drink for pets called "Pawsecco". In both cases, if you can find any real reason to worry about public confusion as to the source of those goods, you're a crazy person.But those examples were parodies and puns that at least nodded at the Prosecco product. The latest bullying attempt to protect the Prosecco brand comes from Italian government ministers and targets the EU's consideration for protected status of a Croatian sweet wine called "Prosek."

Texas and Florida. Florida and Texas. Two states with governors who have decided that culture warrioring and "owning the libs" is way more important than the Constitution they swore to protect and uphold. As you'll recall, last month Texas Governor Greg Abbott decided to use the internet services he hates to livestream his signing of the clearly unconstitutional HB20 that seeks to block social media sites from moderating how they see fit.As we had pointed out, Florida had beaten Texas to the punch on that and a court had already tossed out the bill as an unconstitutional infringement of 1st Amendment rights. Now a state that was looking to actually do things correctly would maybe see that and recognize that maybe it's not worth wasting millions of taxpayer dollars to do the exact same thing, but Texas went ahead.And, now, the same two organizations that sued to strike down Florida's law, NetChoice and CCIA, have similarly sued to strike down Texas' law.

Well, here's something unexpected, delivered in a somewhat tone-deaf fashion. The Minnesota Department of Public Safety has partnered with a mother whose son was killed by a Minnesota police officer to hopefully reduce the number of times people are killed by police officers for following instructions during traffic stops. (h/t @Ktech)

I’m grateful to Techdirt and the EFF for this series. There are so many legitimately difficult issues around content moderation at the application layer—that is, on (and usually by) platforms like Facebook and Twitter. And they can crowd out the problems around the corner that are at least as difficult: those of code and content moderation at the infrastructural level, such as the wholesale platforms (such as Amazon Web Services) that host websites; domain name registries that support the use of domain names; and app stores from Apple and Google that largely determine what applications users can choose to run.To be sure, the line between infrastructure and application can be blurry. For example, text messaging via SMS is offered as a bundled service by providers of mobile phone services like AT&T and Verizon. These services are usually thought of as infrastructural—while users of iPhones experience iMessage as an application that supplants SMS for inter-iOS text exchanges with a fall back to SMS for participants who don’t use iOS.Perhaps the distinction lies as much in the dominance of a service as it does in its position within a layered stack. Informally surveying students in courses on digital governance, I’ve found increasing appetite for content moderation by Facebook of users’ news feeds and within Facebook groups—say to remove blatant election disinformation such as asserting the polls will be available on the wrong day, to depress turnout—while largely refusing to countenance moderation by telecommunications companies if the same disinformation were sent by SMS. Facebook Messenger remains a tossup.However fuzzy the definitions, infrastructural moderation is a natural follow-on to application-level moderation. Historically there hasn’t been much pressure for infrastructural moderation given that many critics and companies traditionally saw “mere” application-layer moderation as undesirable—or, at least, as a purely private matter for whoever runs the application to decide upon within its terms of service for its users.Part of that long-term reluctance for public authorities to pressure companies like Facebook for greater moderation has been a solicitude for how difficult it is to judge and deal with flows of user-submitted content at scale. When regulators thought they were choosing between a moderation requirement that causes a company to shut down its services, or abstention that allowed various harms to accrue, many opted for the second.For example, the “notice-and-takedown” provisions around the U.S.’ 1998 Digital Millennium Copyright Act—which have encouraged content aggregators like YouTube to take down allegedly copyright infringing videos and music after a claim has been lodged—are, for all the instances of wrongly-removed content, comparatively light touch. Major services eventually figured out that they could offer claimants a “monetize” button, so that content could stay up and some ad revenue from it could be directed to presumed copyright holders rather than, say, to whoever uploaded the video.And, of course, the now widely-debated Section 230 of the Communications Decency Act, of the same vintage as the DMCA, flatly foreclosed many avenues of potential legal liability for platforms for illegal content other than copyrighted material, such as defamatory statements offered up by some users about other users.As the Internet entered the mainstream, aside from the acceptance of content moderation at scale as difficult, and the corresponding reluctance to impinge upon platforms’ businesses, there was a wide embrace of First Amendment values as articulated in Supreme Court jurisprudence of the 1960s and 70s. Simplifying a little, this view allows that, yes, there could be lots of bad speech, but it’s both difficult and dangerous to entrust government to sift out the bad from the good, and the general solution to bad speech is more speech. So when it came to online speech, a marketplace-of-ideas-grounded argument I call the “rights” framework dominated the landscape.That framework has greatly eroded in the public consciousness since its use to minimize Internet companies’ liabilities in the late 1990s and early 2000s. It’s been eclipsed by what I call the “public health” framework. I used the label before it became a little too on the nose amidst a global pandemic, but the past eighteen months’ exigencies are a good example of this new framework. Rights to, say, bodily integrity, so hallowed as to allow people to deny the donation of their bodily organs when they die to save others’ lives, yield to a more open balancing test when it’s so clear that a “right” to avoid wearing a mask, or to take a vaccination, can have clear knock-on effects on others’ health.In the Internet context, there’s been a recognition of the harms that flow from untrammeled speech—and the viral amplification of the same—made possible at scale by modern social media.It was, in retrospect, easy for the Supreme Court to extol the grim speech-affirming virtue of allowing hateful placards to be displayed on public sidewalks adjacent to a private funeral (as the Westboro Baptist Church has been known to do), or anonymous pamphlets to be distributed on a town common or at a public meeting, despite laws to the contrary.But the sheer volume and cacophony of speech from unknown sources that bear little risk of enforcement against them even if they should cross a line, challenges those easy cases. Whether it's misinformation, for which the volume and scope can be so great as to have people either be persuaded by junk or, worse, wrongly skeptical of every single source they encounter, or harassment and abuse that silences the voices of others, it’s difficult to say that the marketplace of ideas is outing only the most compelling ones.With a public health newly ascendant for moderation at the application layer, we see new efforts by platform operators to tighten up their terms of service if only on paper, choosing to forbid more speech over time. That includes speech that, if the government were to pursue it, would be protected by the First Amendment (a lot of, say, misinformation about COVID and vaccines would fit this category of “lawful but awful”).Not coincidentally, regulators have a new appetite for regulation, whether because they’re convinced that moderation at scale, with the help of machine learning tools and armies of moderators, is more possible than before, or that there’s a genuine shift in values or their application that militates towards interventionism in the name of public health, literally or metaphorically.Once the value or necessity of moderation is accepted at the application layer, the inevitable leakiness of it will push the same kinds of decisions onto providers of infrastructure. One form of leakiness is that there will be social media upstarts who try to differentiate their services on the basis of moderating less, such as Parler. That, in turn, confronted Apple and Google, operating their respective app stores for iOS and Android, to consider whether to deny Parler access to those stores unless it committed to achieve minimum content moderation standards. The companies indeed removed the Parler app from their stores, while Amazon, which offers wholesale hosting services for many otherwise-unrelated web sites and online services, suspended its hosting of Parler in the wake of the January 6th insurrection at the Capitol.Another form of leakiness of moderation is within applications themselves, as the line between publicly-available and private content becomes more blurred. Facebook aims to apply its terms of service not only to public posts, but also to those within private groups. To enforce its rules against the latter, Facebook either must peek at what’s going on within them—perhaps only through automated means—or field reports of rule violations from members of the groups themselves.Beyond private groups are services shaped to appear more as private group messaging than as social networks at all. Whether Facebook’s own Messenger, with new options for encryption, or through other apps such as Telegram, Facebook’s Whatsapp, or the open-source Signal, there’s the prospect that strangers sharing a cause can meet one another on a social network and then migrate to large private messaging groups whose infrastructure is encrypted.Indeed, there’s nothing stopping people from choosing to gather and have a conversation within World of Warcraft, merely admiring the view of the game’s countryside as they chat about sports, politics, or alleged terrorist schemes. A Google Doc could serve the same function, if with less of a scenic backdrop. At that point content moderation either must be done through exceptions to any encryption that’s offered—so-called backdoors—or through bot-driven client-side analysis of what people are posting before it moves from, say, their smartphones onto the network.That’s a rough description of what Apple has been proposing to do in order to monitor users’ private iCloud accounts for illegal images of child sexual abuse, using a combination of privileged acccess to data from the phone and data of existing abusive images collected by child protection agencies to ascertain matches. Apple has suspended plans to implement this scanning after an outcry from some members of the technical and civil liberties communities. Some of that pushback has been around implementation details and worries about misidentification of lawful content, and Apple has offered rejoinders to those worries.But more fundamentally, the civil liberties worry is that this form of scanning, once a commonplace for a narrow and compelling purpose, will find new purposes, perhaps against political dissidents, whose speech—and apps—can readily be deemed illegal by a government that does not embrace the rule of law. This happened recently when the Russian government prevailed on both Apple and Google to remove an app by opposition leader Aleksei Navalny’s movement designed to encourage strategic voting against the ruling party.We’ve seen worries about scope creep around the formation and development of ICANN, a non-profit that manages the allocation of certain Internet-wide identifiers, such as top-level domains like .com and .org. Through its ability to choose who operates domain registries like those, ICANN can require such registries to in turn compel domain name registrants to accept a dispute resolution process if someone else makes a trademark-like claim against a registration (that’s how, early on, the holder of madonna.com was dispossessed of the name after a complaint by Madonna).The logical concern was that the ability for registries to yank domain names under pressure from regulators would go beyond trademark-like disputes over the names themselves, and into the activities and content of the sites and services those names point to. For the most part that hasn’t happened—at least not through ICANN. Hence the still surprisingly common operation of domains that operate command-and-control networks for botnets or host copyright-infringing materials.Nonetheless, if content moderation is important to do, the fact is that it will be difficult to keep it to the application layer alone. And today there is more of a sense that there isn’t such a thing as the neutral provision of services. Before, makers of products ranging from guns to VCRs offered arguments like those of early Internet platforms: to have them liable for what their customers do would put them out of business. They disclaimed responsibility for the use of their products for physical assault or copyright infringement respectively since those took place long after they left the makers’ factories and thus control, and there weren’t plausible ways to shape the technologies themselves at the factory to carve away future bad uses while preserving the good ones.As the Internet has allowed products to become services, constantly checking in with and being adapted by their makers, technology vendors don’t say goodbye to their work when it leaves a factory. Instead they are offering it anew every time people use it. For those with a public health perspective, the ability of vendors to monitor and shape their services continuously ought at times to be used for harm reduction in the world, especially when those harms are said to be uniquely made possible by the services themselves.Consider a 2021 Texas law allowing anyone to sue anyone else for at least $10,000 for “aiding” in the provision of most abortions. An organization called Texas Right to Life created a web site soliciting “whistleblowers” to submit personal information of anyone thought to be a suitable target under the new law—a form of doxxing. The site was originally hosted by GoDaddy, which pulled the plug on the basis that it collected information about people without their consent.Now consider the loose group of people calling themselves Sedition Hunters, attempting to identify rioters at the Capitol on January 6th. They too have a web site linking out to their work. Should they solicit tips from the public—which at the moment they don’t do—and should their site host treat them similarly?Those identifying with a rights framework might tend to think that in both instances the sites should stay up. Those worrying about private doxxing of any kind might think they should be taken down. And others might draw distinctions between a site facilitating application of a law that, without a future reversal by the Supreme Court, is clearly unconstitutional, and those uniting to present authorities with possible instances of wrongdoing for further investigation.As the public health framework continues to gain legitimacy, and the ability of platforms to intervene in content at scale grows, blanket invocations of rights will not alone blunt the case for content moderation. And the novelty of regulating at the infrastructural level will not long hold back the pressures that will follow there, especially as application-layer interventions begin to show their limits. Following in the model of Facebook’s move towards encryption, there could come to be infrastructural services that are offered in a distributed or anonymized fashion to avoid the possibility of recruitment for regulation. But as hard as these problems are, they seem best solved through reflective consensus rather than technical fiat in either direction.Jonathan Zittrain is George Bemis Professor of Law and Professor of Computer Science at Harvard University, and a co-founder of its Berkman Klein Center for Internet & Society.Techdirt and EFF are collaborating on this Techdirt Greenhouse discussion. On October 6th from 9am to noon PT, we'll have many of this series' authors discussing and debating their pieces in front of a live virtual audience (register to attend here). On October 7th, we'll be hosting a smaller workshop focused on coming up with concrete steps we can take to make sure providers, policymakers, and others understand the risks and challenges of infrastructure moderation, and how to respond to those risks.

The National Association of Criminal Defense Lawyers has just released an in-depth examination of predictive policing. Titled "Garbage In, Gospel Out," it details the many ways bad data based on biased policing has been allowed to generate even more bad data, allowing officers to engage in more biased policing but with the blessing of algorithms.Given that law enforcement in this country can trace itself back to pre- and post-Civil War slave patrols, it's hardly surprising modern policing -- with all of its tech advances -- still disproportionately targets people of color. Operating under the assumption that past performance is an indicator of future results, predictive policing programs (and other so-called "intelligence-led" policing efforts) send officers to places they've already been several times, creating a self-perpetuating feedback loop that ensures the more often police head to a certain area, the more often police will head to a certain area.As the report [PDF] points out, predictive policing is inadvertently accurately named. It doesn't predict where crime will happen. It only predicts how police will behave.

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Back in 2013, Techdirt started writing about the boring-sounding Investor-State Dispute Settlement (ISDS) system. It was so boring, we decide to use a better term for it: corporate sovereignty. It's an appropriate name, since this system of secret courts effectively places companies above a government, by allowing them to sue a nation if the latter takes actions or brings in laws that might adversely affect their profits. It was originally designed to protect companies that invested in unstable parts of the world, and to discourage things like expropriation by corrupt officials. But clever lawyers soon realized it was much more general than that, and could be used as a weapon against even the most powerful -- and stable -- nations.It allows deep-pocketed companies -- typically multinational corporations -- to threaten governments with big fines if they pass laws or make decisions that aren't to the companies' liking. That includes actions that are clearly justified and in the interests of the country's citizens. For example, over the years Techdirt has written about how corporate sovereignty was used to threaten governments that wanted to protect public health, even measures to tackle COVID-19.In 2015, this blog warned that the TAFTA/TTIP trade agreement under discussion then would allow companies to challenge actions taken to protect the environment, such as bringing in laws to tackle the climate crisis. TAFTA/TTIP never happened, so fossil fuel companies have now turned to other treaties to demand over $18 billion as "compensation" for the potential loss of future profits as a result of recent decisions taken around the world to tackle climate change. Global Justice Now has a summary:

For years we've noted how both Apple and John Deere have become the face of the kind of obnoxious repair restrictions that have fueled the growing "right to repair" movement. Apple has long been criticized for bullying independent repair shop owners, attempting to monopolize repair, and generally being terrible from an environmental standpoint when it comes to waste and repair. John Deere has been equally criticized for obnoxious DRM and draconian repair policies that force many rural tractor owners to spend thousands of dollars, and sometimes drive thousands of miles, just to get essential agricultural equipment repaired.US PIRG is now attempting to pressure both companies via their investors, and alongside a "socially responsible mutual fund company," Green Century Funds, has filed shareholder resolutions with both Apple and John Deere asking them to account for “anti-competitive repair policies." The mutual fund argues that Apple is harming the company's brand value by insisting it's socially responsible, then routinely embracing policies that, well, aren't:

Three former US intelligence community employees (two who worked for the NSA) have just agreed to pay $1.68 million in fines for violating export control regulations by providing the United Arab Emirates government with powerful hacking tools that government used to target dissidents, pro-democracy activists, and other perceived enemies of the UAE.If that seems a little light for giving authoritarian thugs better ways to locate, punish, or completely disappear residents and citizens who have angered them by asking for basic human rights, you're right: it is. But that's what the DOJ has agreed to do.

It will come as no surprise that we have done many, many posts at Techdirt that involve Sony. While not all of those posts are critical of the company, many of those posts deal with Sony wielding IP law about while claiming it is doing so to "protect creators" of content. We've also discussed instances where some of these IP-wielding companies, that are supposedly the vanguards of the creative community, also have managed to use the art created by their own fans without bothering to credit them. To be clear, that likely doesn't run afoul of copyright law, given that the fan art typically uses IP owned by these companies. But it doesn't change the fact that it's both quite hypocritical to not bother even crediting the fan that created the art, as well as being just plain shitty.So back to Sony: the company appears to be both quite hypocritical and just plain shitty to one fan that seems to have found his fan art used on a movie poster for Venom: Let There Be Carnage.

So we've noted more than a few times that while Elon Musk's Starlink will be a good thing if you can actually get and afford the service, it's going to have a decidedly small impact on the broadband industry as a whole. Between 20 and 42 million Americans lack access to broadband entirely, 83 million live under a monopoly, and tens of millions more are stuck under a duopoly (usually your local cable company and a regional, apathetic phone company). In turn, Starlink is going to reach somewhere between 300,000 to 800,000 subscribers in its first few years, a drop in the overall bucket.Thanks to massive frustration with broadband market failure (and the high prices, dubious quality, and poor customer service that results), users are decidedly excited about something new. But not only are there limited slots due to limited capacity and physics, a lot of those slots are going to get gobbled up by die-hard Elon Musk fans excited to affix Starlink dishes to their boats, RVs, and Cybertrucks. As a result it will be extremely unlikely that most users who truly need the improved option will absolutely be able to get it.But a new PC Magazine survey continues to make it clear that most consumers don't quite understand they'll never actually have the option (especially if they live in a major metro market):Starlink is expected to come out of beta next month for a broader commercial launch, and has seen 600,000 orders so far. But many of the customers who have signed up say getting a status update from Starlink customer service is effectively impossible. While major Wall Street analysts like Craig Moffett estimate the service may be able to scale to 6 million users over a period of many years, he also notes that guess is extremely optimistic, and will require a significantly updated fleet of 42,000 satellites to achieve.This all assumes that Starlink will remain financially viable as it works toward that goal, something that's not really guaranteed in a low-orbit satellite industry that has a history of major failures. And there will be questions about throttling and other restrictions once the network gets fully loaded with hungry users. Again, Starlink will be great for off the grid folks if they can get -- and afford -- it, but I suspect there's going to be some heartache when folks excited about the service realize the limitations of its actual reach. And this scarcity is only going to drive even greater interest in a service you probably won't be able to get anytime soon.

For decades, EFF and others have been documenting the monumental failures of content moderation at the platform level—inconsistent policies, inconsistently applied, with dangerous consequences for online expression and access to information. Yet despite mounting evidence that those consequences are inevitable, service providers at other levels are increasingly choosing to follow suit.The full infrastructure of the internet, or the “full stack,” is made up of a range of entities, from consumer-facing platforms like Facebook or Pinterest, to ISPs like Comcast or AT&T. Somewhere in the middle are a wide array of intermediaries, such as upstream hosts like Amazon Web Services (AWS), domain name registrars, certificate authorities (such as Let’s Encrypt), content delivery networks (CDNs), payment processors, and email services.For most of us, most of the stack is invisible. We send email, tweet, post, upload photos and read blog posts without thinking about all the services that help get content from the original creator onto the internet and in front of users’ eyeballs all over the world. We may think about our ISP when it gets slow or breaks, but day-to-day, most of us don’t think about intermediaries like AWS at all—until AWS decides to deny service to speech it doesn’t like, as it did with the social media site Parler, and that decision gets press attention.Invisible or not, these intermediaries are potential speech “chokepoints” and their choices can significantly influence the future of online expression. Simply put, platform-level moderation is broken and infrastructure-level moderation is likely to be worse. That said, the pitfalls and risks for free expression and privacy may play out differently depending on what kind of provider is doing the moderating. To help companies, policymakers and users think through the relative dangers of infrastructure moderation at various levels of the stack, here’s a set of guiding questions.

The vulnerability equities process meets the FBI's natural tendency to find and hoard illegal things until it's done using them. And no one walks away from it unscathed. Welcome to the cyberwar, collateral damage!If an agency like the NSA comes across an exploit or unpatched security flaw, it's supposed to notify affected tech companies so they can fix the problem to protect their customers and users. That's the vulnerability equities process in theory. In practice, the NSA (and others) weigh the potential usefulness of the exploit versus the damage it might cause if it's not fixed and make a disclosure decision. The NSA claims in public statements it's very proactive about disclosing discovered exploits. The facts say something different.Then there's the FBI, which has engaged in criminal acts to further investigations. Perhaps most famously, the FBI took control of a dark web child porn server and ran it for a few weeks so it could deploy its malware (Network Investigative Technique, according to the FBI) to users of the site. Not only did it continue to distribute child porn during this time, but it reportedly optimized the system to maximize its malware distribution.The trend continues. As Ellen Nakashima and Rachel Lerman report for the Washington Post (alternative link here), the FBI could have stopped a massive ransomware attack but decided it would be better if it just sat on what it knew and watched things develop.

This lawsuit is a couple months old, but I'm clearing out some older stories, and thought it was worth writing up still. Southwest Airlines is regularly ranked as a favorite of consumers. While it's generally relatively low cost as airlines go, it has kept up a reputation of stellar customer service -- contrary to the reputations of some other low cost airlines. However, earlier this year, Southwest not only decided to be particularly anti-consumer, but to go legal about it. The company decided to sue the site Skiplagged.If you've never seen it, Skiplagged is a neat service -- effectively finding secret cheaper fares by exposing some of the hidden (stupid) secrets of airline fares. I discovered it years ago, after writing about some sketchy airline pricing tricks involving multi-city travel. The secret that Skiplagged realized is that you can often find cheaper flights by booking a multi-leg trip, and not taking all the flights. As Skiplagged sums it up: "As an example, a traveler who wants to go to San Francisco from New York would book a flight that is ticketed for NYC -> San Fran -> Seattle and end their travel once they arrive in San Fran and skip the leg to Seattle."This can create some pretty massive details, and like those sketchy scam ads say "this one weird trick... that the airlines hate" except that it actually works. And now Southwest has decided to go to court over it.Now, it's important to note that unlike many other airlines, Southwest requires people to buy tickets via its own site, and refuses to have its fares offered on aggregation sites. It also has a long and somewhat unfortunate history of suing websites who try to improve on Southwest fares in some manner. A decade ago we wrote about Southwest going after sites that help flyers track their frequent flyer mileage, and a few years back, we wrote about a ridiculous lawsuit against a website that alerted Southwest flyers if they could change their ticket to a cheaper option after they booked a flight (since Southwest has a no-charge for changes policy). Unfortunately, after a court refused to dismiss that lawsuit under Texas's anti-SLAPP law, leading the site to effectively agree to shut down permanently.Here, Southwest is claiming a sort of double-whammy -- saying that Skiplagged is getting data on Southwest flights via another company (who Southwest is already suing), Kiwi.com, and using those fares to find the skipped leg cheaper options (also referred to as "hidden city" tickets).Southwest claims this violates basically all the laws: trademark violations, page scraping violations, unauthorized sales, unfair and deceptive practices and a few others as well.

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The Snowden leaks exposing NSA dragnet surveillance prompted a lot of litigation. Cast a wide enough net and you're bound to snag it on some people's rights. The Wikimedia Foundation was one of several parties who sued over the NSA's seemingly unconstitutional collection efforts, targeting the agency's "upstream" harvesting of all data and communications straight from internet backbones.To keep the case in court, Wikimedia had to plausibly allege its data and communications had been scooped up by the NSA. Fortunately, Ed Snowden had provided some pretty solid evidence for the Foundation. A leaked NSA presentation showed Wikipedia was included in the agency's HTTP dragnet:Well, that leaked presentation, which included the Wikipedia logo as part of the traffic the NSA could snag from internet backbones wasn't enough to impress the district court, which dismissed the lawsuit. It was revived by the appeals court a couple of years later, which said it had alleged enough plausible harm and possible targeting to pursue its First and Fourth Amendment claims.It went back down to the lower court, which did the same thing it did the first time around. The suit was again dismissed, this time because the district court felt the Foundation didn't bring enough factual allegations to the table. But then, how could it? The NSA basically said facts could not be introduced or argued.

Much like the company's dedication to women, AT&T's dedication to not funding people eager to overthrow democracy appears to be somewhere between inconsistent and nonexistent. Shortly after January 6 a number of companies, including telecom giants like AT&T, publicly crowed about how they'd be ceasing all funding to politicians that supported the attack on the Capitol and the overturning of, you know, fucking democracy. Of course that promise was never worth all that much, given the the umbrella lobbying orgs companies like AT&T used never really stopped financing terrible people.Initially, AT&T made a big stink about how it had suspended funding to all 147 Republicans who voted to overturn the 2020 election. But not only did AT&T not actually suspend funding via its numerous policy and lobbying tendrils, it didn't even really ever stop funding insurrectionists directly:

The top court in Massachusetts is asking itself (and legal counsel representing both sides) questions that -- on the surface level -- don't really appear to be that difficult to answer. Here's how Thomas Harrison sums it up for Courthouse News:

It's been a minute since we last discussed Billy Mitchell, the man with the self-propelled reputation as an immense gamer with many high scores on record. He has also demonstrated a willingness to be quite litigious towards anyone who disagrees with this assessment of his gaming prowess. A couple of years back, he threatened to sue the Guinness Book of World Records for -- checks notes -- , huh, defamation. This defamation appeared to amount to the GBoWR rescinding his "record" for a high and perfect Pacman score, noting that there were evidenced claims that Mitchell had not earned the videotaped score on an official arcade cabinet, but rather using an emulator. These records were later reinstated, with GBoWR indicating it didn't have enough evidence to refuse the record. Mitchell also sued Twin Galaxies, an organization that acts as something of an arbiter for gaming records like this. That case failed to get dismissed on anti-SLAPP grounds and appears to still be active.As does the website Mitchell setup to proclaim his own glory, it seems, though it appears that Mitchell let his registration for the site lapse and now it is under decidedly new ownership.

Summary: On the 32nd anniversary of the Tiananmen Square protests, internet users noticed Microsoft's Bing search engine was producing some interesting results. Or, rather, it wasn't producing expected search results for some possibly interesting reasons.Users searching for the most iconic image of the protests — that of the unidentified person known only as "Tank Man" — were coming up empty. It appeared that Microsoft's search engine was blocking results for an image that often serves as shorthand for rebellion against the Chinese government.As was reported by several web users, followed by several news outlets, the apparent blocking of search results could be observed in both the United States and the United Kingdom, leaving users with the impression the Chinese government had pressured Microsoft to moderate search results for "tank man" in hopes of reducing any remembrance of the Tiananmen Square Massacre, which resulted in the deaths of 2,500-3,500 protesters.The apparent censorship was blamed on Microsoft's close relationship with the Chinese government, which allowed its search engine to be accessed by Chinese residents in exchange for complying with government censorship requests.This led to Microsoft being criticized by prominent politicians for apparently allowing the Chinese government to dictate what users around the world could access in relation to the Tiananmen Square protests.Company Considerations:

The Chinese government's national security law -- adopted/acquiesced to by Hong Kong politicians apparently handpicked to serve the country that agreed not to interfere in Hong Kong's government business until 2047 -- is still paying off for the region's impatient overseers.The handover of Hong Kong to China has provoked an never-ending stream of pro-democracy protests. China doesn't care for democracy, nor does it care for any other form of autonomy. To combat its opponents, the Chinese government -- with an assist by a China-controlled Hong Kong government -- has declared advocating for democracy to be an act of terrorism. Dissent has been equated with undermining national security, and will be punished accordingly.The latest news in this ongoing attack on Hong Kong's autonomy -- one that is being committed in broad daylight in front of a world full of witnesses -- is the arrest of even more pro-democracy activists and the shuttering of their website.Earlier this month, the Hong Kong police state came for activists who ensured the Chinese government was never allowed to forget 1989's Tiananmen Square Massacre -- an act that made it clear what the government thought about people who demanded some say in their representation. In response to its annual Tiananmen-related rally and other demands for democracy, four activists were arrested.

Today we're launching our latest Techdirt Tech Policy Greenhouse discussion in which we bring in a bunch of actual experts to discuss and debate complex and nuanced subjects regarding tech policy -- this time about content moderation at the infrastructure layer. We're excited that we're doing it in partnership with our friends over at the Electronic Frontier Foundation (EFF)! Also, we're going to conclude this new series of posts on Techdirt with two virtual events. On October 6th from 9am to noon PT, we'll have many of this series' authors discussing and debating their pieces in front of a live (though virtual!) audience (register to attend here). The following day, on October 7th, EFF and Techdirt will be hosting a smaller workshop event to take some of what we learned and discussed the previous day, and see if we can come up with more concrete steps and approaches to make sure providers, policymakers, and others understand the risks and challenges of infrastructure moderation, and how to respond to those risks.As you may recall, in the past we've had such Greenhouse discussions on broadband in the age of COVID, content moderation, and privacy.The latest edition will again dip into the content moderation well, but will focus on a part of the discussion that is all too often forgotten (leading to potentially damaging consequences). Specifically, we'll be talking about content moderation not at the "edge" of the internet (i.e., the user-facing services like Google, Facebook, and Twitter), but at the infrastructure layers deeper in the stack. This could include content moderation via hosting companies, domain registrars, ad networks, payment processors, app stores, and much, much more. Since so much of the discussion (and anger) around content moderation focuses on those edge providers that everyone is familiar with, it seems that nearly all proposals tend to just focus on correcting perceived content moderation ills for end users. But, at the same time, it seems that most of the policy proposals we see would apply equally (if not more so) to infrastructure providers.Some of this is by design.The "original" content moderation debate on the internet revolved around copyright -- with the record labels (mainly) demanding ever more draconian regulations and standards to force content offline. However, as the technology evolved, we increasingly saw the legacy entertainment companies recognize that they could get more bang for the buck by targeting infrastructure intermediaries. They started to threaten ad networks and domain registrars for infringement that happened on websites that neither of those entities had power over.Indeed, the biggest concern with moving moderation decisions down the stack is that most infrastructure players only have a sledge hammer to deal with these questions, rather than a scalpel. They can't remove just the "bad" content. They can only remove (or, at least threaten to remove) all service, which can wreak havoc on a site. And we've seen how that pressure can be used to extreme ends. People focus on more recent examples, but over a decade ago, caving to pressure from US government officials, Amazon and others dumped Wikileaks.That said, the infrastructure companies are still private entities, and do (for the most part, with a few exceptions) retain the power to run their businesses how they wish -- including the right to refuse service to certain customers. And there are reasons why infrastructure providers may not just want, but actually need, the ability to do some amount of moderation -- for example ISPs have good reason to run spam filters for their customers, and there have been cases where serving companies have (understandably) wanted to pull down malware bot networks using their infrastructure.In other words, there are a lot of nuances here, and plenty to discuss and debate and explore better paths forward.Finally, we should note that, beyond partnering with EFF for this project, we are also supported by the grant we received last year from the Knight Foundation to explore this very topic, as well as sponsorships from Cloudflare, ISOC, and Golden Frog.