The biggest challenge we face in advocating for Section 230 is how misunderstood it is. Instead of getting to argue about its merits, we usually have to spend our time disabusing people of their mistaken impressions about what the statute does and how. If people don't get that part right then we'll never be able to have a meaningful conversation about the appropriate role it should have in tech policy.It's particularly a problem when it's a federal agency getting these things wrong. In our last comment to the FCC we therefore took issue with some of the worst falsehoods the NTIA had asserted in its petition demanding the FCC somehow seize imaginary authority it doesn't actually have to change Section 230. But in reading a number of public comments in support of its petition, it became clear that there was more to say to address these misapprehensions about the law.
I attended an Internet Archive event (virtually, of course) yesterday, and afterwards one of the attendees alerted me to yet another nefarious attack on Section 230 based on out-and-out lies. Apparently the League of California Cities has been going around getting various California cities to vote on a completely misleading and bogus motion pushing for Congress to reform Section 230 of the Communications Decency Act. It was apparently put up first by the city of Cerritos, which is part of Los Angeles County (almost surprised it wasn't started in Hollywood, but it wouldn't surprise me to find out that the impetus behind it was Hollywood people...). Basically, cities are voting on whether or not the League of California Cities should officially call on Congress to amend Section 230 in drastic ways... all because of some violence at recent protests about police brutality. The process, apparently, is that one city (in this case Cerritos) makes the proposal, and gets a bunch of other cities to first sign on, and then various other cities take a vote as to whether it becomes official League policy (after which they'd send a letter to Congress, which Congress would probably ignore).And, if you just read the nonsense that the originating proposal put out there, and had no idea how Section 230, the internet, the 1st Amendment or the 4th Amendment works, it might sound like a good idea. Except that what the proposal says is utter nonsense, disconnected from reality.
The government has fucked up and it thinks citizens are obligated to help it unfuck itself. We're not. Too bad.Recently, government accountability nonprofit American Oversight obtained nearly 10,000 pages of memos and emails from the United States Postal Service. The documents dealt with the USPS's response to the COVID-19 pandemic. Unlike the USPS's effusive response to this FOIA request, the agency's response to complaints from employees about the danger they were facing was far more tepid.These documents were shared with the Washington Post, which highlighted the Postal Service's scrapped plan to send every American five masks, as well as the internal turmoil that accompanied the spread of the coronavirus.Apparently, the USPS had second thoughts about its FOIA response following this unflattering nationwide media coverage. It sent a letter to American Oversight asking it to take down every single one of the 10,000 pages it had given the organization.
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As was hinted at in our previous post on China's response to Trump forcing TikTok to... not actually be sold to Oracle, but to force TikTok into signing a hosting deal to store data in the US, it appears that China is going to do some posturing of its own. The Chinese government has said that it will block the deal which it calls "extortion."And, to be fair, the Chinese government has a point. It was extortionate. Trump told ByteDance it had to sell or TikTok would be blocked in the US. And while it didn't actually sell TikTok, it was forced at gunpoint into a deal that it appears it would not have made otherwise. And, of course, China holds all the leverage here because Trump is a ridiculously bad dealmaker. His "plan" flopped in that he didn't force a sale, and then to save face (and to help out one of his big donors) he gave the thumbs up to the Oracle non-purchase/hosting contract. It was already a weak move that everyone other than the dumbest of Trump's fans knows is a weak move by a President who swings the executive power bat like a toddler who just learned how to smash things.So, of course China is going to move for a better deal. In the Chinese state-controlled English language outlet China Daily, the the Chinese government goes in for the kill.
AT&T and Verizon didn't have much to say as T-Mobile was lobbying for Sprint merger approval. In large part because most of the downsides of the merger -- such as lower overall pay for sector employees -- or higher overall prices due to a consolidated lack of competition -- aided the two wireless giants.Now that the deal's done, AT&T (no stranger to mindless consolidation and monopolization itself) is apparently concerned that the deal consolidated too much spectrum in the hands of one company. Namely, T-Mobile. From a FCC filing this week spotted by Ars Technica:
It never, ever ends. President Trump is continuing his war on Section 230 and the right for the open internet to exist. The latest is that he's meeting with various state Attorneys General to encourage them to bring investigations against internet websites over "anti-conservative bias" despite the fact that no one has shown any actual evidence of anti-conservative bias beyond assholes, trolls, and literal Nazis upset that they got banned.
This isn't so much in vogue as it was in the past, but it still remains true that one's reputation is a scarce resource that can be frittered away easily. And, on these pages at least, it is often equal parts perplexing and funny to watch some folks in the tech space torpedo their own reputations for various reasons. The more shrewd don't always seem to care about this sort of thing, which is how you get the MPAA pirating clips from Google to make its videos, or a law school taking a critic to court only to have the court declare said critic's critique was totally true. Good times.Which brings us to Trevor Milton, the founder of Nikola Motor Company. Nikola is playing in the electric truck vehicle space. In 2016, Milton announced in an official video that the Nikola One Semi was "fully functional." In fact, one of Milton's chief public concerns at the time was ensuring that nobody could come by and drive away with one of the trucks. The companion video for the Nikola One was posted to YouTube in January of 2018. This video shows the Nikola One chugging down a lonely one-lane road.Despite all of the fanfare, it's worth noting that the Nikola One never made it into production. Why? Well...
Senator Lindsey Graham is in a tight re-election campaign that he might just lose. And he's doing what politicians desperate for campaign cash tend to do: releasing a lot of absolutely batshit crazy bills that will pressure big donors to donate to him to either support the bill, or to get him not to move forward on it. It's corrupt as hell, but is standard practice. And the best of these kinds of bills are ones that pit two large industries with lots of lobbyists and cash to throw around against one another. For many years the favorite such bill for this was a bill about performance rights royalties for radio play. This would pit radio broadcasters against the music industry, and the cash would flow. Every two years, as the election was coming, such a bill would be released that was unlikely to go anywhere, but the cash would flow in.More recently, the goal has been to target the big internet companies. And, boy, Linsdey Graham's campaign must be struggling, because he's decided to take two horrible, awful bills that would harm the internet and mash them together into a single bill that is set for markup by the Senate Judiciary Committee next week. This new bill, entitled the "Online Content Policy Modernization Act" simply combines the terrible and unconstitutional CASE Act (to create a quasi-judicial court in the Copyright Office to review copyright claims) with some of the recently released (and also horrible and unconstitutional) "Online Freedom and Viewpoint Diversity Act" which would rewrite Section 230 to remove the ability to moderate "otherwise objectionable" content without liability, and would, instead, insert a limited list of what kinds of content could be moderated without liability.Both of these are bad ideas, but both of them are specific threats to the open internet -- and the kinds of things that Senator Graham knows he can fundraise on. Both bills are garbage, and Senator Graham likely knows this -- but he's not in the Senate to actually legislate. He's there to stay in power, and there's a real chance he might lose this November. So I guess it's time to break out the really stupid bills.
The third book in Cory Doctorow's Little Brother series is coming soon — but as usual, Cory is doing something different as part of the release. Fans and Techdirt readers know he's an outspoken opponent of DRM who makes sure all his work is available DRM-free, but that isn't so easy when it comes to audiobooks, where Audible's market dominance forces DRM onto everything. So while publishers eagerly picked up Attack Surface for printing, he retained the audio rights and is running his first-ever Kickstarter to release a nice non-DRM version. This week, Cory joins Mike on the podcast to discuss why he's doing it, what he's giving up, and the industry changes he hopes to inspire.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.
Back in March, facial recognition tech upstart Clearview was sued by the Vermont Attorney General. The AG alleged Clearview's scraping of sites to harvest photos (and other biometric/personal info) of Vermont residents violated state privacy laws. It also alleged Clearview had mislead residents and customers about the company's intended uses and its success in the law enforcement marketplace.Clearview's response to the lawsuit was… interesting. It tried to invoke Section 230 immunity, claiming it was nothing more than a host for third-party content. The problem with this argument was it wasn't being sued over the content itself (which wasn't defamatory, etc.) but over its collection of the content, which did not provide Vermont residents with notice their information was being collected and gave them no way to opt out.The company then hired a prominent (but opportunistic) First Amendment lawyer to argue it had a First Amendment right to collect and disseminate this information, even when its collection efforts routinely violated the terms of service of nearly every site it scraped to obtain photos. This argument was also interesting in its own way, but had the potential to cause complications for plenty of entities not nearly as universally-reviled as Clearview. In some ways, Clearview is the Google of faces, gathering information from all over the web and delivering search results to Clearview users.The Vermont court has finally weighed in [PDF] on Clearview's arguments. And it doesn't like most of them. (h/t Eric Goldman)Here's the court's take on the Section 230 argument:
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While there were thousands of comments filed to the FCC in response to the NTIA's insanely bad "petition" to have the FCC reinterpret Section 230 in response to an unconstitutional executive order from a President who was upset that Twitter fact checked some of his nonsense tweets, perhaps the comment that matters most is the one submitted last week by the two authors of Section 230, Senator Ron Wyden and former Rep. Chris Cox. Cox and Wyden wrote what became Section 230 back in the 90s, and have spent decades fighting misinformation about it -- and fighting to keep 230 in place.In the comment they submitted to the FCC, they respond to all the idiotic nonsense that everyone has been submitting. Again, these are the guys who wrote the actual law. They know what it was intended to do, and agree with how it's been used to date. So they go on a systematic debunking journey through the nonsense. First, they respond to comments that say that the FCC can interpret 230. Nope.
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We've already covered what a ridiculous, pathetic grift the Oracle/TikTok deal was. Despite it being premised on a "national security threat" from China, because the app might share some data (all of which is easily buyable from data brokers) with Chinese officials, the final deal cured none of that, left the Chinese firm ByteDance with 80% ownership of TikTok, and gave Trump supporters at Oracle a fat contract -- and allowed Trump to pretend he did something.Of course, what he really did was hand China a huge gift. In response to the deal, state media in China is now highlighting how the Chinese government can use this deal as a model for the Chinese to force the restructuring of US tech companies, and force the data to be controlled by local companies in China. This is from the editor-in-chief of The Global Times, a Chinese, state-sponsored newspaper:That says:
After the FCC effectively neutered itself at telecom lobbyist behest, numerous states jumped in to fill the consumer protection void. As a result, California, in 2018, passed some net neutrality rules that largely mirrored the FCC's discarded consumer protections. Laughing at the concept of state rights, Bill Barr's DOJ immediately got to work protecting U.S. telecom monopolies and filed suit in a bid to vacate the rules.The DOJ's central argument was that California's attempt to protect consumers was somehow "anti-consumer." And the lawsuit largely centered on language the FCC had included in its net neutrality repeal (again, at telecom lobbyist behest) attempting to ban states from filling the void created by the federal government no longer giving a damn. The courts so far haven't looked too kindly upon that logic, arguing that the FCC can't abdicate its authority over telecom, then try to lean on that non-existent authority to try to tell states what to do.Last week California filed its first brief (pdf) in its legal battle with the DOJ. ISPs are seeking a preliminary injunction to prevent California from enforcing the rules during the lawsuit. Again though, their primary argument continues to be that states can't enforce net neutrality because the FCC said so. Which, as Stanford Professor Barbara van Schewick continues to point out, is still nonsense no matter how many times industry and the captured U.S. government repeat the claim:
The Trump Administration hasn't met a slope it isn't willing to grease up and go sliding down. There's not much united about the states at the moment and the President's lavish devotion to all things "law and order" is making things worse.The insertion of federal officers into cities experiencing weeks and months of protests hasn't done much to reduce the adjacent violence that drew them there in the first place. Engaging in Gestapo-esque "disappearing" of protesters -- along with federal officer violence targeting journalists and observers -- has done nothing to return order to cities like Portland, Oregon.Earlier this month, the Administration issued a memo threatening to cut off federal funding to cities the Administration doesn't like.
The legal fight over Baltimore's aerial surveillance system continues. Airplanes armed with powerful cameras fly constantly over the city, allowing law enforcement to view the movements of people and vehicles over a 32-square mile area. The resolution may be high (192 million megapixels) but the area covered reduces people to (nearly) unidentifiable dots on a screen. However, these recordings can be accessed to trace movements of pixels/people as they move to and from suspected crime scenes.The city isn't paying a dime for these cameras and airplanes. The equipment -- provided by Persistent Surveillance Systems -- is paid for by a private donor. This perhaps explains why the city chose to roll it out with zero public notice back in 2016. After a brief shutdown, it has resumed, with a bit more public involvement. It may be audacious, but it hasn't been all that successful. Reports show the program logged 700 flights but only one arrest.The ACLU sued, claiming this persistent surveillance of nearly everyone in the city violated the Fourth Amendment. The federal court disagreed, even taking into consideration the ability of the program to engage in persistent tracking of individuals when combined with the PD's cameras on the ground. Despite the word "persistent" being used by the company itself, the program is far from persistent, with darkness preventing recording and inclement weather occasionally grounding spy planes.There's an appeal underway, but as Louis Krass reports for Baltimore Brew, the ACLU doesn't appear to have found much more sympathy one level up. The ACLU argued the untargeted surveillance system is an unreasonable search. In other words, Baltimore residents would not consider it reasonable to have their public movements surveilled for up to 12 hours a day for six months straight.Judge J. Harvie Wilkinson disagrees.
Portland, Oregon has now joined parts of Massachusetts and all of California in protecting its residents from the sketchy surveillance method known as "facial recognition." For something that's supposed to recognize faces, it's usually pretty bad at it and gets worse when it has to deal with minorities. Of course, the same can be said about the law enforcement agencies deploying it, which might explain their love of tech that gives them more people to arrest but rarely the probable cause to do so.Portland's ban is more restrictive than others already in place. It doesn't just affect the local government.
Copyright ruins freaking everything. Five years ago, today, Demi Adejuyigbe gifted the world with an incredible video of him dancing to Earth, Wind & Fire's classic song September. If you somehow have not seen it, I'm jealous of you for getting to watch it for the first time.
While much of the news this weekend with regards to the President's plans to block Chinese messaging apps focused on the fake "deal" to avert a TikTok ban, things didn't go the President's way on his other planned ban. As you may recall, along with TikTok, Trump issued an executive order to ban WeChat, the very popular Chinese social network/messaging/everything app. Last week, we noted that a bunch of WeChat users in the US were trying to get an injunction to block the ban, as the Commerce Department's details about the ban proved that its stated goal of protecting Americans was nonsense.The court held a hearing over the weekend (after also holding hearings on Thursday and Friday) and quickly issued a preliminary injunction, blocking the Commerce Department from putting the WeChat ban in place. As the judge rightly notes, there are significant 1st Amendment concerns with the ban. Basically, the court says that the WeChat users have rightly shown that banning the app likely violates the 1st Amendment and creates prior restraint:
Anyone still hoping for an orderly election and, if need be, a peaceful transition of power hasn't been paying attention to much that's happened over the past few months. As the presidential election approaches, everything is still in a disturbing state of flux. Multiple states have failed to flatten the COVID-19 curve, necessitating some walking back of earlier "everything's fine" pronouncements.The safest way to vote may be from the comfort of your own home. But that option doesn't appeal to President Trump, his campaign, or the Republican National Committee. All have engaged in a lot of unhelpful -- if not actually deadly -- rhetoric against both at-home voting and the general use of any protective measures to prevent the spread of the virus.It's not like "distance voting" is a novelty. Absentee voting happens all the time. Just because there will be more quasi-absentee votes to count during this election is no reason to believe voters at home will engage in widespread voter fraud. Voter fraud is almost nonexistent. Enough checks are in place to prevent most of it and there's very little evidence anyone has ever engaged in a massive conspiracy to rig a presidential election.Since the Trump Campaign (and the president himself) don't have facts on their side, they've decided to lawyer up. Voter suppression has always been a thing, but these entities want it blessed by courts, if not actually codified.
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A week ago, we explained that the announced "deal" between Oracle and TikTok was a complete joke and what appeared to be a grift to let Trump claim he had done something, while really just handing a big contract to one of his biggest supporters. That was based on the preliminary details. As more details came out, it became even clearer that the whole thing was a joke. TikTok's investors actively recruited Oracle because they knew they needed to find a company that "Trump liked."Over the weekend, Trump officially gave the "okay" on the Oracle deal (which now also involves Walmart). And before we get into the details of the deal and why it's a total grift, I'd like to just step back and highlight:It is positively insane, Banana Republic, kleptocratic nonsense that any business deal should hinge on whether the President himself gives it a thumbs up or a thumbs down. Do not let all the insanity of this current administration hide this fact. If this had happened during the Obama administration, how crazy do you think Hannity/Carlson/Breitbart/etc. would be going right now about "big government" and claiming that the President is corrupt beyond belief? We should never, ever be in a situation where any President is giving the personal thumbs up or thumbs down to a business deal (and that's leaving out the fact that he forced this business deal in the first place with a blatantly unconstitutional executive order.Okay, now back to the actual deal. Oracle and Walmart will team up to create a "new" (very much in quotes) company called TikTok Global that will be headquartered in the US. Of course, this is a joke. TikTok already has US operations. Oracle and Walmart will end up with a small equity stake in this "new" company (combined about 20%), but the Chinese company ByteDance will still own the majority of the company and will still control the TikTok algorithm. While there is some chatter about how the data will be hosted in the US, for the most part that was already true. Oracle says that it will review things to make sure that the data is secure, but remember, this is the same Oracle that collects a shit ton of data on internet users via Blue Kai, and then leaked it all. It's also the same Oracle that works closely with US spy agencies and isn't exactly known as being particularly good at security.As the NY Times notes, this deal appears to accomplish literally nothing. As we said before, it was all performative, letting Trump claim he had "done something," when the rationale for the deal ("national security") was always bogus, and this is proved by the fact that nothing in the new setup changes whatever national security questions there were about the app before. So, rather than force ByteDance to "sell" the company to protect "US national security" as the NY Times rightly notes all that came out of this was:
Like so many authoritarians, Belarus "President" Alexander Lukashenko has taken to violence, intimidation, and censorship in a ham-fisted bid to stifle those critical of his dubious election win. On the technology side, that has involved hiring U.S. network gear maker Sandvine to help the country block citizens' access to the broader internet. During August's contested election, citizens found their access to social media outlets like Twitter and Facebook prohibited thanks to Sandvine and the Belarusian government, which originally tried to claim that the blockade was the result of a cyberattack. News outlets like CNN and the BBC, and search engines like Google, were also blocked.Aside from being harmful, there's increasing evidence that this kind of censorship simply doesn't work. A recent study in the International Journal of Communications took a closer look at what happened to protest movements in African countries when governments attempted massive censorship of the internet, and it found that while there wasn't evidence that such shutdowns drove greater unrest, there also was no evidence such behavior thwarted protests:
Five Years AgoThis week in 2015, we got a big, confusing mess of a ruling on fair use and the DMCA in the famous "dancing baby" video lawsuit. We also saw a loss for the Motion Picture Academy after its five-year crusade to make GoDaddy pay for "infringing" websites, and the owner of the Miami Heat was hit with $155,000 in legal fees after losing his bogus copyright lawsuit against a blogger. Meanwhile, China was beginning a big push to get American tech companies to agree to its rules, while the DOJ was backing down from charges against a professor driven by China hysteria.Ten Years AgoThis week in 2010, Yelp got yet another Section 230 victory against an attempt to hold it liable for bad reviews, while a reputation management company was threatening to launch a similar lawsuit against TripAdvisor in the UK, in what appeared to be a publicity stunt. A terrible appeals court ruling was killing the first sale doctrine, while Craigslist was engaged in a fight with South Carolina's attorney general and we wondered why other internet companies weren't standing up for it. And the latest big DRM-breaking event happened with the apparent leak of the HDCP master key which was soon confirmed by Intel.Fifteen Years AgoThis week in 2005, the fights over online reviews were in their infancy, with doctors leading the charge. Ebay spent an eyewatering amount of money to purchase Skype, and we noted this meant the company needed to become an expert on net neutrality, fast. The RIAA was going around overstating the results of the Grokster case, while the courts in Taiwan were contradicting an earlier ruling on the legality of file sharing software by sending file sharing executives to jail. And Lego was suing a Danish artist for using her middle name — "Lego" — to sign her paintings.
Veteran Techdirt readers will have been so tempered by stories about Monster Energy playing the trademark bully at this point that the mere mention of the company should cause them to roll their eyes. Still, the history of what we've covered in the Monster's attempt to win the trademark-protectionist championship are still constructive in one very important way: Monster Energy regularly loses these disputes. That in itself shouldn't be terribly surprising; the company's decisions on just how often to enforce the trademark rights it has are often so absurd that it would be a shock if it put together any sort of real winning streak. But what is surprising is when victims of Monster's bullying choose to actually concede to the bullying, given that losing track record.But it happens, even when the victim is a large enough entity that it could fight if it wanted to. A recent example of this is how Ubisoft changed the name of an upcoming video game after Monster Energy opposed its trademark application for it.
Summary: In the early 1990s, facing increased pressure from the commercial sector who sensed there might be some value in the nascent “Internet,” the National Science Foundation began easing informal restrictions on commercial activity over the Internet. This gave rise to the earliest internet companies -- but also to spam. Before the World Wide Web had really taken off, the place where a great deal of internet communication took place was Usenet, created in 1980, which was what one might think of as a proto-Reddit, with a variety of “newsgroups” dedicated to different subjects that users could post to.Usenet was a decentralized service based on the Network News Transfer Protocol. Users needed a Usenet reader, from which they would connect to any number of Usenet servers and pull down the latest content in the newsgroups they followed. In early 1994, a husband and wife lawyer team, Laurence Canter and Martha Siegel, decided that they would advertise their legal services regarding immigration to the US (specifically help with the infamous “Green Card Lottery” to get a green card to the US) on Usenet.They hired a programmer to write a perl script that posted their advertisement on 5,500 separate news groups. While cross-posting was possible (a single post designated for multiple newsgroups), this particular message was posted individually to each newsgroup, which made it even more annoying for users -- since most Usenet reader applications would have recognized the same message as “read” in different newsgroups if it had merely been cross-posted. Posting it this way guaranteed that many people saw the message over and over and over again.It is generally considered one of the earliest examples of commercial “spam” on the internet -- and certainly the most “successful” at the time. It also angered a ton of people. According to Time Magazine, Canter and Siegel faced immediate backlash:
Though it doesn't grab the same headline attention as the silly and pointless TikTok ban, the lack of security and privacy standards in the internet of things (IOT) is arguably a much bigger problem. TikTok is, after all, just one app, hoovering up consumer data in a way that's not particularly different from the 45,000 other international apps, services, governments, and telecoms doing much the same thing. The IOT, in contrast, involves millions of feebly secured products being attached to home and business networks every day. Many also made in China, but featuring microphones and cameras.Thanks to a laundry list of lazy companies, everything from your Barbie doll to your tea kettle is now hackable. Worse, these devices are now being quickly incorporated into some of the largest botnets ever built, resulting in devastating and historic DDoS attacks. In short: thanks to "internet of things" companies that prioritized profits over consumer privacy and the safety of the internet, we're now facing a security and privacy dumpster fire that many experts believe will, sooner or later, result in some notably nasty results.To that end, the House this week finally passed the Internet of Things Cybersecurity Improvement Act, which should finally bring some meaningful privacy and security standards to the internet of things (IOT). Cory Gardner, Mark Warner, and other lawmakers note the bill creates some baseline standards for security and privacy that must be consistently updated (what a novel idea), while prohibiting government agencies from using gear that doesn't pass muster. It also includes some transparency requirements mandating that any vulnerabilities in IOT hardware are disseminated among agencies and the public quickly:
The federal government's Office of Legal Counsel (OLC) tells government agencies what they can and can't do under existing law. Its interpretation of these laws may vary significantly from how they've been interpreted by courts. The OLC has been asked to justify everything from warrantless searches to extrajudicial killings. The bespoke law interpretations that justify these actions are then withheld from the public -- often for decades at a time.The OLC has refused to turn these over to FOIA requesters, citing a number of FOIA exemptions. It does this with older decisions as well -- ones Congress has said must be released to the public. 2016's amendment of the Freedom of Information Act prohibits agencies from withholding "deliberative" records -- which is much of what the OLC produces -- that are over 25 years old. The OLC violated this change in the law immediately, prompting a lawsuit by the Knight Institute that the Institute ultimately won.But it wasn't the only lawsuit brought against the OLC by the Knight Institute over FOIA violations. The OLC was also sued for violating the "reading-room provision," which obligates agencies to process and release certain documents, even in the absence of a FOIA request for these documents. The OLC has refused to do this. The court said the OLC's refusal to comply was good and lawful, but only for some subsets of its document stash. The litigation continued to determine what was exempt and what was subject to proactive release.
Famed law professor Alan Dershowitz is at it again. He's now suing CNN for defamation in a SLAPP suit, because he's upset that CNN did not provide an entire quote he made during the impeachment trial before the US Senate, claiming that because he was quoted out of context, it resulted in people believing something different than what he actually meant with a quote. Reading the lawsuit, the argument is not all that different from the defamation claim made by another Harvard Law professor, Larry Lessig, earlier this year, in which he accused the NY Times and a reporter there of defamation for taking his comments out of context. Lessig later dropped that lawsuit.In both cases, these law professors are effectively arguing that when they make convoluted arguments, you must include all of the nuances and context, or you might face defamation claims. That's incredibly chilling to free speech, and not how defamation law works. Dershowitz's complaint is that during the trial, he made the following claim:
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This morning the Commerce Department released the details of how the WeChat and TikTok bans will work. It's possible that the ban on TikTok will get lifted if Treasury Secretary Mnuchin can convince enough people in the administration to buy into the grifty Oracle non-sale, but the WeChat ban is happening no matter what.The details reinforce two key points:
As economists and experts had warned, the recent $26 billion Sprint T-Mobile merger effectively decimated the prepaid space. T-Mobile had already laid off around 6,000 employees at its Metro Prepaid division, with more layoffs expected. Many of the "mobile virtual network operators" that operated on Sprint's network now face an uncertain future, with growing resentment in the space among prepaid vendors, who say T-Mobile is already using its greater size and leverage to erode commissions and to renegotiate their contracts for the worse. Many prepaid vendors are calling for help that most certainly won't be coming any time soon from the Trump Federal Trade Commission (FTC) and Department of Justice’s Antitrust Division.With that as backdrop, another major effort at wireless consolidation has emerged with Verizon's announced purchase of Tracfone, one of the biggest prepaid vendors in the U.S. The $6.2 billion deal will, Verizon insists, result in "exciting and compelling" products in the years to come:
Everyone agrees elections should be secure. But hardly anyone in the federal government is doing anything useful about it. The shift to electronic voting has succumbed to regulatory capture which isn't doing anything to ensure the best and most secure products are being deployed. On top of that, it's become a partisan issue at times, resulting in legislators scoring political points rather than making voting and voters more secure.There may be some good news on the way, although it's unlikely to result in a more secure election in 2020. As Maggie Miller reports for The Hill, political differences have been stowed away for the moment to push an election security bill forward.
As any internet platform matures, the growth it undergoes will inevitably lead to experimenting with revenue models. For a healthy chunk of the internet, advertising plays some role in those experiments. And, like anything else, there are good experiments and bad experiments.But I am very much struggling to understand who in the hell at Twitch thought that breaking away from live streams to force viewers to watch commercials, all without the control or input of Twitch streamers, could possibly be a good idea.
Cops lie. Cops lie enough there's a term for it: testilying. Honest prosecutors don't want lying cops on the stand dirtying up their case with their impeachable testimony. Unfortunately, police unions are powerful enough to thwart this small bit of accountability. "Brady lists" are compiled by prosecutors. They contain the names of officers whose track record for telling the truth is so terrible prosecutors don't want to have to rely on their... shall we say... misstatements in court.Unfortunately, these lists are often closely-guarded secrets. Judges aren't made aware of officers' penchant for lying. Neither are defendants in many cases. But they're called "Brady" lists because they're supposed to be disclosed to defendants. The "Brady" refers to Brady v. Maryland, where it was decided prosecutors are obligated to turn over possibly exculpatory information to defendants to ensure their right to a fair trial. This includes anything that might indicate the cop offering testimony might not be telling the truth.The Massachusetts Supreme Judicial Court has ruled [PDF] prosecutors have an obligation to inform defendants of officers who have made their "Brady" lists. Two cops who made false statements in a use-of-force report were granted immunity for their testimony in front of a grand jury. The district attorney prosecuting a different criminal case handed this information over to the defendant. The cops challenged this move, claiming their grand jury immunity should have prevented this exculpatory information from being given to the defendant and discussed in open court. (h/t Matthew Segal)The cops argued there's no constitutional duty to disclose this information (under the US Constitution or the Commonwealth's) unless failing to do so would alter the outcome of the trial by creating reasonable doubt where none previously existed. The Supreme Judicial Court says that argument is wrong under both Constitutions.
While the TikTok part of Trump's original August Executive Order got all the attention, we pointed out that it was fairly notable that he issued a nearly identical order to also effectively ban WeChat by blocking any transactions related to WeChat. While WeChat is not that well known or widely used in the US, it is basically central to the Chinese internet, and, as such, is a key part of how many Chinese Americans stay in touch with relatives, friends, and colleagues back in China. So it was perhaps not that surprising that a group of WeChat users in the US quickly sued to try to block the order:
The perennial make-PACER-free legislation has arrived. If you're not familiar with PACER, count yourself among the lucky ones. PACER performs an essential task: it provides electronic access to federal court dockets and documents. That's all it does and it barely does it.PACER charges taxpayers (who've already paid taxes to fund the federal court system) $0.10/page for EVERYTHING. Dockets? $0.10/page. (And that "page" is very loosely defined.) Every document is $0.10/page, as though the court system was running a copier and chewing up expensive toner. So is every search result page, even those that fail to find any responsive results. The user interface would barely have been considered "friendly" 30 years ago, never mind in the year of our lord two thousand twenty. Paying $0.10/page for everything while attempting to navigate an counterintuitive interface draped over something that looks like it's being hosted by Angelfire is no one's idea of a nostalgic good time.Legislation attempting to make PACER access free was initiated in 2018. And again in 2019. We're still paying for access, thanks to the inability of legislators to get these passed. Maybe this is the year it happens, what with a bunch of courtroom precedent being built up suggesting some illegal use of PACER fees by the US Courts system. We'll see. Here's what's on tap for this year's legislative session:
As was rumored late last week, the White House is, in fact, nominating Nathan Simington to the FCC, taking over the seat of of Mike O'Riely, whose nomination was withdrawn just days after O'Rielly expressed his strong support for the 1st Amendment and made it clear what he thought of idiots calling for the government to force websites to host content:
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If Attorney General Bill Barr is ever gifted with superlatives, the one that will stick will be "worst."After presiding over some civil liberties violations under Bush I, Barr has returned to AG work under Trump and seems dead set on making everyone forget his first reign of far-more-limited terror. Barr wants encryption backdoors, the end of Section 230 immunity, and law enforcement officers promoted to the rank of demigod. The public will be expected to absorb the collateral damage.Bill Barr does know how to deliver a good speech, whether he's preaching to the converted or, in this recent speech, preaching to some developing converts. Speaking to Hillsdale College students during their Constitution Day event, Barr said he's trying to build a kinder, gentler DOJ.
The UK government is fine with press freedom as long as the press confines itself to the unwritten guidelines the government uses to restrict it. Publish too many leaked documents? Well, the government will show up and destroy your computer equipment. Report on the wrong stuff? The government will kick you out of Parliament and tell you not to talk about why you've been kicked out. Publish names of people targeted by UK government investigations in the Land of the First Amendment and across the pond from the UK? Expect a UK court to issue a ruling telling you to abide by laws that don't govern the country you're actually publishing in.The UK government is again stepping on free press toes. And human rights organizations have noticed. Independent journalism outfit Declassified UK was recently told its journalistic services were no longer required… or would at least no longer be respected by the Ministry of Defence.
It has been a long and largely fruitless road for Origin, EA's PC gaming client that it had planned on building into a rival of Valve's Steam. What was originally supposed to have been the chief antagonist to Steam in the ongoing PC gaming platform wars instead is best described as a failure to launch. Released in 2011, Origin began life as it lived in total: the walled garden for most EA games. Critics appeared almost immediately, stemming from odious requirements to relinquish personal information, the use of DRM, and security flaws. Couple that with a game library that was relatively stilted compared with Steam, by design mind you, and it's not difficult to understand why the adoption numbers for the game client just never took off.Several weeks ago, to the surprise of many, EA suddenly released its gaming catalog on Steam. Given the long history of the company keeping its toys for itself, it left many scratching their heads in confusion. This week, the inevitable occurred, with EA announcing that Origin will be no more. Instead, the PC gaming client will rebrand, rebuild, and become an optional place for EA gamers to play, rather than a Fort Knox for EA games.
Summary:Late in June 2020, a leak-focused group known as "Distributed Denial of Secrets" (a.k.a., "DDoSecrets") published a large collection of law enforcement documents apparently obtained by the hacking collective Anonymous.The DDoSecrets' data dump was timely, released as protests over the killing of a Black man by a white police officer continued around the nation neared their second consecutive month. Links to the files hosted at DDoSecrets' website spread quickly across Twitter, identified by the hashtag #BlueLeaks.The 269-gigabyte trove of law enforcement data, emails, and other documents was taken from Netsential, which confirmed a security breach had led to the exfiltration of these files. The exfiltration was further acknowledged by the National Fusion Center Association, which told affected government agencies the stash included personally identifiable information. While this trove of data proved useful to activists and others seeking uncensored information about police activities, some expressed concern the personal info could be used to identify undercover officers or jeopardize ongoing investigations.The first response from Twitter was to mark links to the DDoSecret files as potentially harmful to users. Users clicking on links to the data were told it might be unsafe to continue. The warning suggested the site might steal passwords, install malicious software, or harvest personal data. The final item on the list in the warning was a more accurate representation of the link destination: it said the link led to content that violated Twitter's terms of service.Twitter's terms of service forbid users from "distributing" hacked content. This ban includes links to other sites hosting hacked content, as well as screenshots of forbidden content residing elsewhere on the web.Shortly after the initial publication of the document trove, Twitter went further. It permanently banned DDoSecrets' Twitter account over its tweets about the hacked data. It also began removing tweets from other accounts that linked to the site.Decisions to be made by Twitter:
Late last year, we designed Threatcast 2020: a brainstorming game for groups of people trying to predict the new, innovative, and worrying forms of misinformation and disinformation that might come into play in the upcoming election. We ran a few in-person sessions before the pandemic hit and ended our plans for more, then last month we moved it online with the help of the fun interactive event platform Remo. We've learned a lot and hit on some disturbingly real-feeling predictions throughout these events, so this week we're joined by our partner in designing the game — Randy Lubin of Leveraged Play — to discuss our experiences "threatcasting" the 2020 election. We really want to run more of these online events for new groups, so if that's something you or your organization might be interested in, please get in touch!Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.
When we launched Techdirt Greenhouse, we noted that we wanted to build a tech policy forum that not only tackled the thorniest tech policy issues of the day, but did so with a little more patience and nuance than you'll find at many gadget-obsessed technology outlets. After our inaugural panel tackled privacy, we just wrapped on our second panel subject: content moderation. We'd like to thank all of those that participated in the panel, and all of you for reading.You'd be hard pressed to find a thornier, more complicated subject than content moderation. On one hand, technology giants have spent years prioritizing ad engagement over protecting their user base from malicious disinformation and hate speech, often with fatal results. At the same time, many of the remedies being proposed cause more harm than good by trampling free speech, or putting giant corporations into the position of arbiters of acceptable public discourse. Moderation at this scale is a nightmare. One misstep in federal policy and you've created an ocean of new problems.Whether it's the detection and deletion of live-streaming violence, or protecting elections from foreign and domestic propaganda, it's a labyrinthine, multi-tendriled subject that can flummox even experts in the field. We're hopeful that this collection of pieces helped inform the debate in a way that simplified some of these immensely complicated issues. Here's a recap of the pieces from this round in case you missed them: Michael Karanicolas examined how localized content moderation decisions can have a massive, often unpredictable global impact, as disinformation-fueled genocide makes abundantly clear. Robert Hamilton explored the need to revisit the common law liability of online intermediaries before Section 230, helping us better understand how we got here. Jess Miers explored how getting rid of Section 230 won't magically eliminate the internet's most problematic content.Aye Min Thant took a closer look at how conflating Facebook with "the internet" in locations like Myanmar, without understanding the culture or having adequate safeguards in place, threw accelerant on the region's genocide.Matthew Feeney examined how evidence "supporting" the repeal of Section 230 is shaky at best, and the fixation on Section 230 is hugely myopic.John Bergmayer argued that it doesn't make sense to treat ad the same as user-generated content, and that websites should face the legal risk for ads they run as print publishers.Brandi Collins-Dexter explored how the monetization of polarization has had a heartbreaking impact on America's deep, longstanding relationship with bigotry.Emma Llanso discussed how the sharing of content moderation knowledge shouldn't provide a backdoor to cross-platform censorship.David Morar explored how many of the problems currently being blamed on "big tech," are simple, ordinary, human fallibility. Yosef Getachew examined how social media could easily apply many of the content moderation practices they've custom-built for COVID-19 to the battle to protect election integrity from domestic and foreign disinformation.Adelin Cai and Clara Tsao offered a useful primer for trust and safety professionals tasked with tackling the near-impossible task of modern content moderation at scale.Gaurav Laroia & Carmen Scurato discussed how fighting online hate speech requires keeping Section 230, not discarding it. Taylor Rhyne offered a useful content moderation primer for startups facing a daunting challenge without the bottomless budgets of their "big tech" counterparts. Graham Smith took a closer look at the content moderation debate and how it intersects with existing post-Brexit headaches in the UK. Daphne Keller took a deep dive into what policy makers can do if they don't like existing platform free speech rules, and how none of the options are particularly great.Much like the privacy debate, crafting meaningful content moderation guidelines and rules (and ensuring consistent, transparent enforcement) was a steep uphill climb even during the best of times. Now the effort will share fractured attention spans and resources with an historic pandemic, recovering from the resulting economic collapse, and addressing the endless web of socioeconomic and political dysfunction that is the American COVID-19 crisis. But, much like the privacy debate, it's an essential discussion to have all the same, and we hope folks found this collection informative.Again, we'd like to thank our participants for taking the time to provide insight during an increasingly challenging time. We'd also like to thank Techdirt readers and commenters for participating. In a few weeks we'll be announcing the next panel; one that should prove timely during an historic health crisis that has forced the majority of Americans to work, play, innovate, and learn from the confines of home.
There have been a variety of lawsuits filed regarding Trump's silly Executive Order regarding TikTok, but one interesting one involves an employee of TikTok, Patrick Ryan, who filed suit on his own behalf to try to block the Executive Order from going into effect. A key part of Ryan's argument is that since the executive order bans transactions, it would mean his own salary from TikTok's parent company, ByteDance, might be blocked by the US government.
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