In the early days of the internet, there was no shortage of predictions insisting the emerging technology would be a bold new frontier of transformative change, ushering forth a golden era of connectivity free from the pesky befuddlement of incompetent government leaders, bad actors, and malicious overlords. This new frontier, we were told, would culminate in a fairer and more humane planet, unshackled from the petty hassles of the brick and mortar world, extracting us from our worst impulses as we marched, collectively, toward a better and more ethical future.Technological innovation, it would seem, was going to fix everything.This optimism certainly wasn't unwarranted. For those of us who cut our teeth on the advent of the internet (I spent much of my own youth on an Apple IIe at 300 baud, enamored with early bulletin board systems), the capacity for revolutionary change was obvious. It still is. But while there's certainly an endless list of examples showcasing the internet's incredible potential for positive, transformative cultural change and innovation, the last decade has witnessed a clear reckoning for those who seemingly believed the lesser angels of our nature wouldn't come along for the ride.Internet corporations so large, or so fused to the government itself, that they laugh off the intervention of world governments. Foreign and domestic propaganda efforts, often working in concert, geared toward sowing discord and division. Disinformation at scale so dangerous it helps spur genocide. Bogus missives so potent they can impact elections and the democratic process itself. Trolls; swatting; deep fakes; racist subreddits; live streamed mass shootings; Pinterest child porn; gamergate; millions getting dangerous health information from unqualified nitwits on YouTube.The core of many of these problems aren't new. In fact in many instances, they're as old as humanity itself. But they have mutated into dangerous new variants courtesy of technology, scale, naivete, and apathy. There's simply no escaping the fact we could have done a better job predicting their evolutionary impact, and establishing systems of oversight, transparency, and accountability that could have dulled many of their sharpest edges.As with Greenhouse, privacy edition, there are no easy answers here. Moderation at scale is utterly formidable. Doing it well at scale may be impossible. Every last policy decision comes with trade offs and a myriad of unforeseen consequences that need to be adequately understood before rushing face first into the fray. As the Section 230 debate makes abundantly clear, there's no shortage of bad faith or unworkable ideas that hold the potential to create far more problems than they profess to solve. Avoiding these pitfalls will require stopping, listening, and understanding one another -- American cultural anomalies to be sure.We're hopeful that the insights presented here from those on the front lines of the content moderation debate will help inform policy makers, the public, and experts alike. And we're hopeful the pieces make some small contribution to the foundation of a better, kinder, more equitable internet more in line with our original good intentions. Techdirt Greenhouse is a conversation, so if you've got expertise in the content moderation arena, or see pieces you'd like to respond to, please feel free to reach out.
We've noted repeatedly that not only did the Trump FCC and DOJ rubber stamp the controversial T-Mobile and Sprint merger, they willfully ignored data showing the deal would result in high prices, lower overall sector pay, fewer jobs, and less overall competition. As most objective antitrust and telecom experts predicted, the ink was barely dry on the deal before the pink slips started to arrive. The higher rates will still likely take a few more years to materialize as the remaining three industry players (T-Mobile, AT&T, and Verizon) perfect their ability to pretend to compete on price without actually doing so.Over at the DOJ, top "antitrust enforcer" Makan Delrahim not only ignored hard data and critics of the deal, he actively helped guide T-Mobile executives to deal completion (if you're unaware, folks tasked with leading the governments antitrust enforcement efforts most assuredly should not be doing that).To try and justify this grotesque regulatory capture, the DOJ came up with a bad idea: it would require T-Mobile offload some spectrum and its Boost Mobile prepaid brand to Dish Network, which would then, theoretically, try and build a replacement carrier for Sprint over a period of 7 years. For much of that time Dish will simply operate as a glorified MVNO (mobile virtual network operator) on T-Mobile's network and be subject to T-Mobile whims.The problem: Dish has a long history of hoarding valuable spectrum and promising to build a wireless network and then, you know, not doing that (just ask pre-merger T-Mobile). The other problem: shepherding such a deal to completion requires the current FCC (rabidly proud of "hands off," "light touch" regulation) to aggressively nanny this deal to completion, something that simply isn't in Ajit Pai's ideological nature. The remaining three players in the space (T-Mobile, AT&T, Verizon) have every motivation to try and scuttle the creation of this fourth competitor to avoid having to actually (gasp) compete on price.Throughout, there have been questions about just how serious Dish is. Again, the company has a long history of buying up valuable spectrum and then doing absolutely nothing with it. Dish's spectrum holdings are extremely valuable, and critics have long wondered if the company is just stringing feckless U.S. regulators along until it can sell its spectrum at a steep premium.Whether Dish is serious still isn't really a settled question, but the company continues to give every impression it may genuinely want to disrupt wireless as a survival strategy in the wake of its struggling traditional TV business. That manifested this week in the acquisition of Tucows' Ting, a small MVNO that had been making slow inroads as a minor player in the wireless space. In a blog post, Ting insists that nothing will really change at the small operation now that it has been acquired by a major corporation engaged in (hopefully) a massive disruption play:
Turkey's president, Recep "Gollum" Erdogan, continues to use legislation to silence everyone that might possibly criticize or mock him. This has been an ongoing process, one that keeps getting worse with every iteration. A failed coup didn't help calm things down in Turkey, which is apparently hoping to pass China and take the top spot on the "journalists jailed" chart.The latest law has a supposedly noble goal, but there's nothing noble about the propelling force behind it. The EFF reports another law giving the government even more censorship powers has been passed, thanks to Erdogan's inability to handle criticism.
If ever there were an artist who seems to straddle the line of aggressive intellectual property enforcement, that artist must surely be Taylor Swift. While Swift has herself been subject to silly copyright lawsuits, she has also been quite aggressive and threatening on matters of intellectual property and defamation when it comes to attacking journalists and even her own fans over trademark rights. So, Taylor Swift is, among other things, both the perpetrator and the victim of expansive permission culture.You would think someone this steeped in these concerns would be quite cautious about stepping on the rights of others. And, yet, it appears that some of the iconography for Swift's forthcoming album and merchandise was fairly callous about those rights for others.
Senator Lindsey Graham very badly wants to push the extremely dangerous EARN IT Act across the finish line. He's up for re-election this fall, and wants to burnish his "I took on big tech" creds, and sees EARN IT as his path to grandstanding glory. Never mind the damage it will do to basically every one. While the bill was radically changed via his manager's amendment last month, it's still an utter disaster that puts basically everything we hold dear about the internet at risk. It will allow for some attacks on encryption and (somewhat bizarrely) will push other services to more fully encrypt. For those that don't do that, there will still be new limitations on Section 230 protections and, very dangerously, it will create strong incentives for internet companies to collect more personal information about every one of their users to make sure they're complying with the law.It's a weird way to "attack" the power of big tech by forcing them to collect and store more of your private info. But, hey, it's not about what's actually in the bill. It's about whatever bullshit narrative Graham and others know the press will say is in the bill.Either way, we've heard that Graham and his bi-partisan supporter for EARN IT, Senator Richard Blumenthal, are looking to rush EARN IT through with no debate, via a process known as hotlining. Basically, it's a way to try to get around any floor debate, by asking every Senator's office (by email, apparently!) if they would object to a call for unanimous consent. If no Senator objects, then they basically know they can skip debate and get the bill approved. If Senators object, then (behind the scenes) others can start to lean on (or horse trade) with the Senators to get the objections to go away without it all having to happen on the floor of the Senate. In other words, Graham and Blumenthal are recognizing that they probably can't "earn" the EARN IT Act if it has to go through the official process to have it debated and voted on on the floor, and instead are looking to sneak it through when no one's looking.While Senator Wyden (once again) has said he'll do whatever he can to to block this, it would help if other Senators would stand up as well. Here's what Wyden had to say about it:
Guys, I'm beginning to get the feeling that Senator Josh Hawley doesn't like Section 230. I mean, beyond creating a laughably inaccurate and misleading "True History of Section 230," Hawley has now introduced at least four bills to modify or end Section 230. Perhaps if he introduces 10 he'll get a free one. His latest, introduced last week would remove Section 230 for any internet company that has "behavioral advertising." Now I've been skeptical of the value of behavioral advertising in many cases, but this new bill is absurd.Basically what the bill would do is say that any site that uses behavioral advertising loses 230 protections:
I guess those "rule of law" folks don't care if a law is any good or will do what it intends to do without causing significant collateral damage. All they care about is that it's a law and, as a law, everyone should just subject themselves to it with a minimum of complaining.The Attorney General is one of those "rule of law" people. Sure, he works for an administration that doesn't seem to care much about laws, propriety, or basic competence, but he's the nation's top cop, so laws and rules it is.Bill Barr wants holes in encryption. He wants them so badly he's making up new words. "Warrant-proof encryption" isn't any different than regular encryption. It only becomes "warrant-proof" when the DOJ and FBI are talking about it, as though it was some new algorithm that only scrambles communications and data when the presence of a warrant is detected.Far too many people in Washington think encryption is only valuable to criminals. Bills are in the works to compel encryption-breaking/backdooring. Some even handcuff these demands to Section 230 immunity -- a 2-for-1 special on shoveled shit straight from the federal government to Americans' favorite platforms and services.Given how much the AG loves broad, abusive laws, it's no surprise he's going on the record to congratulate the author of another terrible law on her newest terrible piece of legislation.
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The whole TikTok story keeps getting dumber. While we still believe that the weird moral panic about TikTok is overblown and Trump's threat to ban the company from the US over the weekend is crazy and unconstitutional, people are still taking things seriously. On Friday evening Trump said that he planned to issue an executive order banning the company (which is not quite how any of this works). He didn't actually do this. He also said he was against an American company like Microsoft buying TikTok, which apparently put the ongoing acquisition talks on hold.Instead, Microsoft had to call up the President and grovel before him, before he apparently told the company it had until September 15th to work out a deal, and if no deal was made by then, he'd again "ban" TikTok (again, an almost certainly unconstitutional move that would not work). Still, it would be a mess, and I'm sure TikTok and ByteDance (the company's current owner) knows that it's probably best to take what it can get from Microsoft while it can. Of course, Microsoft also knows that it's in a good position because ByteDance has a ticking time bomb on its hands, and the value of TikTok could decrease drastically on September 15th if no deal is made. Even if a ban is unconstitutional, fighting it will take time and money.Also, it's not clear if there would be much competition for TikTok from anyone other than Microsoft. I mean, Facebook and Mark Zuckerberg would love to buy it, but pretty much everyone knows that there's no way in hell that would get approved by the Justice Department. Even if Facebook weren't already facing a shit ton of antitrust scrutiny from Congress, the FTC, and state Attorneys General, the Bill Barr DOJ has made it clear that it will abuse antitrust to hurt companies Trump is mad at. And contrary to some conspiracy theories, Trump and friends still insist that Facebook is "biased" against them (it's not). So that wipes out most of the large internet companies that would actually have the capital to buy TikTok. There could be a surprise buyer, but it remains a fairly limited market, at best.Still, things went from just stupid to downright bizarre on Monday when President Trump announced that he thought most of the money from a TikTok acquisition should go to the US Treasury:
After initially obtaining an FCC license for up to 1 million Starlink satellite broadband customers in the United States, Space X last week quadrupled that estimate, and is now hopeful that 5 million Americans will sign up for service. To be clear: Space X's service won't be taking on traditional broadband providers in major metro areas. Instead, the company will be using thousands of low orbit satellites (with lower latency than traditional satellite broadband) to deliver marginally decent service to under-served rural Americans, assuming it winds up being profitable longer term.In a country where an estimated 42 million can't get any broadband at all (during a raging pandemic, no less), any little improvement helps. By and large, most major outlets have framed Starlink as a massive disruption of the broadband industry:
Free speech keeps getting freer in Tennessee. The state was once home to a host of vexatious defamation lawsuits -- including one where someone subjected to mild criticism sued a journalist over things someone else said. Thanks to the state's new anti-SLAPP law, litigation is slightly less vexatious these days.But there are still state laws posing threats to free speech by criminalizing stuff the First Amendment says is perfectly acceptable. Tennesseans for Sensible Election Laws (represented by Daniel Horwitz, whose work has made multiple headlines here at Techdirt) sued the state over a campaign law that made it a misdemeanor to publish false information about candidates.The statute says this:
When we released our CIA: Collect It All card game based on a declassified CIA training card game, we had included a fun little Easter egg in there, with help from Jon Callas, who helped create modern day encryption. So far, I believe a grand total of... two people have found it, solved it, and told me about it (though it's possible many more have done so). That was neat, but we had nothing to give them beyond the satisfaction of having solved the puzzle. It seems that others have gone much, much farther with this idea.Five years ago, Tarah Wheeler put together a big Kickstarter for the book Women in Tech, with advice/ideas/thoughts/stories from a variety of successful women in the tech field.Five years after publishing that book, Wheeler has now revealed that she flooded the book with hidden puzzles, and while releasing the book itself was a massively difficult project, the fact that a bunch of people found and worked on the puzzles was part of what made it all worth it:
Earlier today we wrote about how Ajit Pai was pushing ahead with the Commerce Department's silly FCC petition regarding a re-interpretation of Section 230 of the Communications Decency Act. We noted that it wouldn't actually be that hard to just say that the whole thing is unconstitutional and outside of the FCC's authority (which it is). Some people have pushed back on us saying that if Pai didn't do this, Trump would fire him and promote some Trump stan to push through whatever unconstitutional nonsense is wanted.Well, now at least there's some evidence to suggest that Trump also views the FCC -- a supposedly "independent" agency -- as his personal speech police. Of the Republican Commissioners, Brendan Carr has been quite vocal in his Trump boot-licking, especially with regards to Section 230. He's been almost gleeful in his pronouncements about how evil "big tech" is for "censoring conservatives," and how much he wants to chip away at Section 230. Pai has been pretty much silent on the issue until the announcement today. But the other Republican Commissioner, Mike O'Rielly, has at least suggested that he recognizes the Trump executive order is garbage. Six weeks ago he said he hadn't done his homework yet, but suggested he didn't think Congress had given the FCC any authority on this matter (he's right).Just last week, during a speech, he made it pretty clear where he stood on this issue. While first saying he wasn't necessarily referencing the Trump executive order, he said the following:
The more the DHS inserts itself into the ongoing civil unrest, the more unrestful it gets. President Trump sent his federal forces to Portland, Oregon -- the first of many "democrat" cities the president feels are too violent/unrestful -- to protect federal buildings from violent graffiti outbursts or whatever. When the DHS arrived -- represented by the CBP, ICE, US Marshals, and other federal law enforcement -- it announced its arrival with secret police tactics straight out of the Gestapo playbook.Since that wasn't martial state enough, the federal officers turned things up, opening fire on journalists and legal observers. Literally. Local journalists were tear gassed, hit with pepper spray/pepper balls, and shot with "non-lethal" projectiles. The journalists and observers sued the federal government, securing a restraining order forbidding federal officers from continuing to violate the Constitution. Federal officers refused to stop (their) rioting and now may face sanctions for their actions. They will definitely be facing additional lawsuits since the restraining order made it clear willful violators would not be granted qualified immunity.As if all of this wasn't enough, news leaked out that DHS was compiling "intelligence reports" on local journalists, as well as journalists located elsewhere in the nation who had published leaked DHS documents. One day after breaking the news about the journalist-targeting "intelligence reports," the Washington Post broke more news -- again with the aid of a leaked DHS document. This one shows the DHS is (still) on the wrong side of the First Amendment. It also appears to show the agency lying to its oversight.
We've mentioned at great length how Trump's executive order to more heavily "regulate" social media is an unworkable joke. It attempts to tackle a problem that doesn't exist ("Conservative censorship") by attacking a law that actually protects free speech (Section 230), all to be enforced by agencies (like the FCC) that don't actually have the authority to do anything of the sort. You can't overrule the law by executive order or regulatory fiat, nor can you ignore the Constitution. The EO is a dumb joke by folks who don't understand how any of this works, and it should be treated as such.Instead, most press coverage of the move is still somehow framed as "very serious adult policy," despite being little more than a glorified brain fart.The FCC also knows the order is unworkable garbage that flies directly in the face of years of espoused (government hands off) ideology by Ajit Pai, Brendan Carr and friends. And yet, terrified of upsetting dear leader, Pai issued a totally feckless statement on Monday stating the EO would be pushed through the rule-making process, pretending as if this was all just ordinary, sensible tech policy:
Early in 2019, we wrote about stream-ripping site FLVTO.biz winning in court against the record labels on jurisdictional grounds. The site, which is Russian and has no presence in the United States, argued that the courts had no jurisdiction. The RIAA labels argued against that, essentially claiming that because Americans could get to the site it therefore constituted some kind of commercial contract, even though no actual contract existed. Instead, the site merely makes money by displaying advertisements. The court very much agreed and dismissed the case.On appeal in May, however, the case was sent back to the lower court.
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Is there anything the DHS can't turn into a debacle while pretending to secure the homeland? It would appear it's impossible for America's least essential security agency to move forward without stepping in something.As protests in Portland neared the 60-day mark, the DHS was tasked with protecting federal property like courthouses and… um… statues. ICE, CBP, Federal Protective Services, and US Marshals all arrived in Portland ready to go to war with people exercising their First Amendment rights. You only have one chance to make a first impression, and the unidentified officers from unknown agencies throwing protesters into unmarked vehicles was one hell of a first impression.The federal agencies went to war, firing tear gas and projectiles at protesters, rioters, journalists, and legal observers. It made no difference to the DHS which was which. But it did make a difference to a federal judge, who issued a temporary restraining order forbidding federal officers from attacking, gassing, assaulting, or arresting journalists and observers who were just trying to do their jobs.The federal officers immediately violated the restraining order. Or, more accurately, they never stopped doing the stuff that earned them the restraining order in the first place. Apparently, the DHS feels it hasn't violated First Amendment rights hard enough. The latest black eye for the DHS is more targeting of journalists, this time with surveillance.
This week, several of our top comments come in response to publisher Ken Whyte moaning about libraries, starting with our anonymous first place winner for insightful:
Five Years AgoThis week in 2014, we saw a judge slam a sheriff for an attack on Backpage that raised serious first amendment questions, and a student succeed after an eight-year legal battle against a university over being expelled for speech. On the other side of the free speech coin, we saw the cops shut down a hologram concert because they didn't like a rapper's lyrics, James Woods sue a random Twitter user for $10-million, and of course Donald Trump continue his lawsuit against Univision (and that post contains our first mention of a certain lawyer, with the now-entertaining phrasing of "apparently, it's some guy named Michael Cohen, who isn't just out of his depth on stuff, but he appears to be actively making things worse.")We also saw a huge bombshell in the lawsuit over the copyright status of Happy Birthday, with new evidence showing the song is in the public domain that Warner Music quickly tried to muddy the waters around.Ten Years AgoThis week in 2010, we wondered why the press was still blindly believing entertainment industry "studies", and how there were new copyrights being claimed on work by an artist who died 70 years ago. Copyright was interfering with technology both old-old and new-old, disrupting the preservation of decaying player piano rolls as well as obsolete video games. And the new round of DMCA anti-circumvention exemptions surprised everyone by including phone jailbreaking, though it left out plenty of good suggestions too.Fifteen Years AgoThis week in 2005, the anti-open-WiFi brigade was stirring up FUD about cantennas and the press was taking the bait. ISP Telus learned all about the Streisand Effect by blocking its customers from reaching websites supporting its employees in their union battle against the company, while offering weak excuses, and we were not exactly shocked to learn that Qualcomm founder Irwin Jacobs doesn't like muni-WiFi. Canada put the final nail in the idea of an iPod tax, one UK court showed it wasn't fooled by ridiculous claims of losses to software piracy, and yet another study showed that file sharers are the music industry's best customers.
This seemed fairly inevitable, after it became quite clear that the Twitter hack from a few weeks ago was done by teen hackers who didn't seem to do much to cover their tracks, but officials in Florida announced the arrest of a Florida teenager for participating in the hack, followed by the DOJ announcing two others as well -- a 19 year old in the UK and a 22 year old in Florida.As for why the first announced was separate and done by Florida officials, it appears that it involved a 17-year-old, and apparently it was easier to charge him as an adult under state laws, rather than under federal law, as with the other two.
Summary: With news breaking so rapidly, it’s possible that even major newspapers or official sources may get information wrong. Social media sites, like Twitter, need to determine how to deal with “news” tweets that later turn out to be misleading -- even when coming from major news organizations, citing official government organizations.With widespread protests around the United States calling attention to police brutality and police activity disproportionately targeting the black community, the NY Post tweeted a link to an article discussing an internal communication by the NY Police Department (NYPD) warning of “concrete disguised as ice cream cups” that were supposedly found at some of the protests, with the clear implication being that this was a way to disguise items that could be used for violence or property destruction.The article was criticized widely by people who pointed out that the items in fact appear to be part of a standard process for testing concrete mixtures, with the details of each mixture written on the side of the containers. Since these were found at a construction site, it seems likely that the NYPD’s “alert” was, at best, misleading.In response to continuing criticism, the NY Post made a very minor edit to the story, noting only that the markings on the cups make them “resemble concrete sample tests commonly used on construction sites.” However, the story and its title remained unchanged and the NY Post retweeted it a day later -- leading some to question why the NY Post was publishing misinformation, even if it was accurately reporting the content of an internal police memo.Questions for Twitter:
There's been a panic over the last few weeks about TikTok, the rapidly growing social network that is owned by the Chinese internet giant ByteDance (by way of history: ByteDance purchased a startup called Musical.ly in 2017, and rebranded it TikTok in 2018, and then it started growing like crazy). A few weeks ago, the Trump administration started suggesting it would ban TikTok, and a story was built up around the idea that TikTok was some sort of national security threat, despite very little evidence to support this. A separate narrative was simply that Trump was annoyed that TikTok kids made Trump look bad in Tulsa by reserving a bunch of tickets to his rally that they never intended to use.Either way, it was announced today that the Trump administration was likely to order ByteDance to shed TikTok and immediately with that was the news that Microsoft was a likely buyer.The whole thing is kind of silly. The most compelling argument I've seen for why the US should ban TikTok came from Ben Thompson at Stratechery, who more or less says (this is a very simplified version of his argument, so read the whole thing) that since China mostly bans US apps and services within its Great Firewall, there's an uneven playing field. I tend to lean slightly the other way: that supporting more freedom is a better approach. It feels like banning TikTok or forcing a sale is stooping to their level, and even validating their approach. And that worries me. And, yes, in the short run it puts us at a slight disadvantage on the global playing field, but frankly, US internet companies are still doing pretty damn well. The idea that we need to force a sale like this sets a questionable and potentially dangerous precedent -- suggesting we don't think that American firms can really compete.On top of that, if the concern is about China, then the fact that most of our network and computer equipment is built in China would seem like maybe a larger concern? But beyond a weird, similar freakout about Huawei, no one seems to be taking any serious interest in that. And that doesn't get into the fact that US intelligence has leaned heavily on US internet companies to try to get access to global data -- meaning that there does seem to be a bit of US exceptionalism built into all of this: it's okay when we do it, but an affront if any other government might do the same thing...Separately, this whole situation with TikTok and Microsoft demonstrates the pure silliness of the antitrust hearing in the House earlier this week. Note that there were claims that the four companies there represented "monopoly power." And yet, just days later, we're talking about how a recent entrant in the market, which has grown up quickly, and which Facebook certainly sees as a threat, is so powerful on the internet that it needs to be sold from its Chinese owners -- and the leading candidate to purchase it, Microsoft, is not even one of the "too powerful" companies who were on the panel.If a new entrant can rise up so quickly to be a "threat" and then needs to be purchased by another giant... it certainly suggests that the internet market still remains pretty vibrant, and not at all locked down by a few monopolies.
Update: Sooo... we already have a bunch of updates on this story. Trump has said he's banning TikTok entirely and is "against" allowing a US company to buy TikTok. Below is the original post, with only a slight clarification regarding Ben Thompson's thoughts on TikTok, which I didn't present very clearly in the original. Then, beneath the post I'll have more thoughts on Trump's comments.There's been a panic over the last few weeks about TikTok, the rapidly growing social network that is owned by the Chinese internet giant ByteDance (by way of history: ByteDance purchased a startup called Musical.ly in 2017, and rebranded it TikTok in 2018, and then it started growing like crazy). A few weeks ago, the Trump administration started suggesting it would ban TikTok, and a story was built up around the idea that TikTok was some sort of national security threat, despite very little evidence to support this. A separate narrative was simply that Trump was annoyed that TikTok kids made Trump look bad in Tulsa by reserving a bunch of tickets to his rally that they never intended to use.Either way, it was announced today that the Trump administration was likely to order ByteDance to shed TikTok and immediately with that was the news that Microsoft was a likely buyer.The whole thing is kind of silly. The most compelling argument I've seen for why the US should ban TikTok came from Ben Thompson at Stratechery, who more or less says (this is a very simplified version of his argument, so read the whole thing) that since China is engaged in a war to impose its ideology on the world, and that it will make use of TikTok and other services to effectively attack Western liberalism, it is effectively dangerous to allow it to operate in the west under Chinese ownership. He supports selling TikTok off to a American company, or barring that, banning the app in the West. I tend to lean the other way: to me, banning TikTok strikes me as effectively proving China's views on liberalism, and allowing them to claim hypocrisy on the west, and use these actions to justify its own actions.On top of that, if the concern is about China, then the fact that most of our network and computer equipment is built in China would seem like maybe a larger concern? But beyond a weird, similar freakout about Huawei, no one seems to be taking any serious interest in that. And that doesn't get into the fact that US intelligence has leaned heavily on US internet companies to try to get access to global data -- meaning that there does seem to be a bit of US exceptionalism built into all of this: it's okay when we do it, but an affront if any other government might do the same thing...Separately, this whole situation with TikTok and Microsoft demonstrates the pure silliness of the antitrust hearing in the House earlier this week. Note that there were claims that the four companies there represented "monopoly power." And yet, just days later, we're talking about how a recent entrant in the market, which has grown up quickly, and which Facebook certainly sees as a threat, is so powerful on the internet that it needs to be sold from its Chinese owners -- and the leading candidate to purchase it, Microsoft, is not even one of the "too powerful" companies who were on the panel.If a new entrant can rise up so quickly to be a "threat" and then needs to be purchased by another giant... it certainly suggests that the internet market still remains pretty vibrant, and not at all locked down by a few monopolies.Updated thoughts: So that's the original above. Now that Trump is saying he really is going to ban TikTok and is against its sale, there are multiple issues raised. Trump seems to think he can do this under his emergency economic powers (effectively declaring TikTok to be a national security issue -- the same "tool" he used to impose tariffs on China without Congressional approval). If he goes that route, there will be lawsuits -- and there will be significant Constitutional issues raised. The Supreme Court has in the past declared software speech, in Brown v. Entertainment Merchants Association (the case about whether or not the government could regulate video games and require age warnings). And, in the 2nd Circuit, a somewhat frustrating decision regarding the publishing of some code that would break DRM, Universal v. Corley, it is at least notable that the Court made a clear statement that software is protected under the 1st Amendment:
Last month, we wrote about the big publishers suing the Internet Archive over its Controlled Digital Lending (CDL) program, as well as its National Emergency Library (NEL). As we've explained over and over again, the Internet Archive is doing exactly what libraries have always done: lending books. The CDL program was structured to mimic exactly how a traditional library works, with a 1-to-1 relationship between physical books owned by the library and digital copies that can be lent out.While some struggled with the concept of the NEL since it was basically just the CDL, but without the 1-to-1 relationship (and thus, without wait lists), it seemed reasonably defensible: nearly all public libraries at the time had shut down entirely due to the COVID-19 pandemic, and the NEL was helping people who otherwise would never have had access to the books that were sitting inside libraries, collecting dust on the inaccessible shelves. Indeed, plenty of teachers and schools thanked the Internet Archive for making it possible for students to still read books that were stuck inside locked up classrooms. But, again, this lawsuit wasn't just about the NEL at all, but about the whole CDL program. The publishers have been whining about the CDL for a while, but hadn't sued until now.Of course, the reality is that the big publishers see digital ebooks as an opportunity to craft a new business model. With traditional books, libraries buy the books, just like anyone else, and then lend them out. But thanks to a strained interpretation of copyright law, when it came to ebooks, the publishers jacked up the price for libraries to insane levels and kept putting more and more conditions on them. For example, Macmillan, for a while, was charging $60 per book -- with a limit of 52 lends or two years of lending, whichever came first. And then you'd have to renew.Basically, publishers were abusing copyright law to try to jam down an awful and awfully expensive model on libraries -- exposing how much publishers really hate libraries, while pretending otherwise.Anyway, the Internet Archive has filed its response to the lawsuit, which does the typical thing of effectively denying all of the claims in the lawsuit (though I will admit that I chuckled to see them even "deny" the claim that the Archive's headquarters are in an "exclusive" part of San Francisco (FWIW, I'd probably describe the area more as "not easily accessible by public transit," but that doesn't quite make it exclusive -- or at least not any more exclusive than most of the rest of SF)).
You can't always pick your fighter for Constitutional challenges. Sometimes you're handed an unsympathetic challenger, which makes defending everyone's rights a bit more difficult because a lot of people wouldn't mind too much if this particular person's rights are limited. But that's not how rights work.A pretty lousy decision has been handed down by a Minnesota federal court. A challenge of two laws -- one city, one state -- has been met with a judicial shrug that says sometimes rights just aren't rights when there are children involved. (h/t Eric Goldman)The plaintiff is Sally Ness, an "activist" who appears to be overly concerned with a local mosque and its attached school. Ness is discussed in this early reporting on her lawsuit, which shows her activism is pretty limited in scope. Her nemesis appears to be the Dar Al-Farooq Center and its school, Success Academy. Ness feels there's too much traffic and too much use of a local public park by the Center and the school.Here's how she's fighting back against apparently city-approved use of Smith Park:
2019 saw a record number of consumers ditch traditional cable television. 2020 was already poised to be even worse, and that was before a pandemic came to town. The pandemic not only sidelined live sports (one of the last reasons many subscribe to traditional cable in the first place), it put an additional strain on many folks' wallets, resulting cord cutting spiking even higher.Among the hardest hit continues to be AT&T, whose customers have been fleeing hand over fist even with AT&T's attempt to pivot to streaming video. According to AT&T's latest earnings report, the company lost yet another 954,000 pay TV subscribers -- 886,000 from the company's traditional DirecTV and IPTV television offerings, and another 68,000 customers from the company's creatively named AT&T TV Now streaming video platform. All told, the losses left AT&T with 18.4 million video customers, including both Premium TV and AT&T TV Now, down from nearly 25.5 million in mid-2018.That's a fairly amazing face plant for a company that spent more than $150 billion on megamergers (DirecTV in 2015, Time Warner in 2018) in a bid to dominate the pay TV sector. The problem is the deals saddled AT&T with an absolute mountain of debt, which the company then attempted to extract from its customers in the form of relentless price hikes. During an economic crisis and pandemic:
The DOJ's Civil Rights Division has wrapped up an Obama-era probe into the Alabama prison system. Initiated in 2016, the investigation covers 13 prisons in the state, containing nearly 17,000 prisoners. What the DOJ found was widespread deployment of excessive force and a resolute lack of concern for inmates' well-being. (via Huffington Post)The report [PDF] notes that the Constitution (indirectly) gives inmates the right to be free from violence from other prisoners. The correctional facilities investigated here did almost nothing to prevent inmate-on-inmate violence.
If there is one thing that really needs to stop at the USPTO, it is the organization's continued approval for trademarks on terms that are basic geographic indicators. While this isn't just an American thing, far too often people are able to get trademark approvals for marks like area codes or the name of their home counties and towns. Given that the purpose of trademark law is to allow unique identifiers for the source of a good or service, marks like these are obvious perversions of the law.And yet it keeps happening. One recent example of this comes from Kentucky, where two Louisville breweries are in a fight over the use of the name of a neighborhood in that city, Butchertown.
The COVID-19 pandemic has spawned an infodemic, a vast and complicated mix of information, misinformation and disinformation.In this environment, false narratives – the virus was “planned,” that it originated as a bioweapon, that COVID-19 symptoms are caused by 5G wireless communications technology – have spread like wildfire across social media and other communication platforms. Some of these bogus narratives play a role in disinformation campaigns.The notion of disinformation often brings to mind easy-to-spot propaganda peddled by totalitarian states, but the reality is much more complex. Though disinformation does serve an agenda, it is often camouflaged in facts and advanced by innocent and often well-meaning individuals.As a researcher who studies how communications technologies are used during crises, I’ve found that this mix of information types makes it difficult for people, including those who build and run online platforms, to distinguish an organic rumor from an organized disinformation campaign. And this challenge is not getting any easier as efforts to understand and respond to COVID-19 get caught up in the political machinations of this year’s presidential election.Rumors, misinformation and disinformationRumors are, and have always been, common during crisis events. Crises are often accompanied by uncertainty about the event and anxiety about its impacts and how people should respond. People naturally want to resolve that uncertainty and anxiety, and often attempt to do so through collective sensemaking. It’s a process of coming together to gather information and theorize about the unfolding event. Rumors are a natural byproduct.Rumors aren’t necessarily bad. But the same conditions that produce rumors also make people vulnerable to disinformation, which is more insidious. Unlike rumors and misinformation, which may or may not be intentional, disinformation is false or misleading information spread for a particular objective, often a political or financial aim.Disinformation has its roots in the practice of dezinformatsiya used by the Soviet Union’s intelligence agencies to attempt to change how people understood and interpreted events in the world. It’s useful to think of disinformation not as a single piece of information or even a single narrative, but as a campaign, a set of actions and narratives produced and spread to deceive for political purpose.Lawrence Martin-Bittman, a former Soviet intelligence officer who defected from what was then Czechoslovakia and later became a professor of disinformation, described how effective disinformation campaigns are often built around a true or plausible core. They exploit existing biases, divisions and inconsistencies in a targeted group or society. And they often employ “unwitting agents” to spread their content and advance their objectives.Regardless of the perpetrator, disinformation functions on multiple levels and scales. While a single disinformation campaign may have a specific objective – for instance, changing public opinion about a political candidate or policy – pervasive disinformation works at a more profound level to undermine democratic societies.The case of the ‘Plandemic’ videoDistinguishing between unintentional misinformation and intentional disinformation is a critical challenge. Intent is often hard to infer, especially in online spaces where the original source of information can be obscured. In addition, disinformation can be spread by people who believe it to be true. And unintentional misinformation can be strategically amplified as part of a disinformation campaign. Definitions and distinctions get messy, fast.Consider the case of the “Plandemic” video that blazed across social media platforms in May 2020. The video contained a range of false claims and conspiracy theories about COVID-19. Problematically, it advocated against wearing masks, claiming they would “activate” the virus, and laid the foundations for eventual refusal of a COVID-19 vaccine.Though many of these false narratives had emerged elsewhere online, the “Plandemic” video brought them together in a single, slickly produced 26-minute video. Before being removed by the platforms for containing harmful medical misinformation, the video propagated widely on Facebook and received millions of YouTube views.As it spread, it was actively promoted and amplified by public groups on Facebook and networked communities on Twitter associated with the anti-vaccine movement, the QAnon conspiracy theory community and pro-Trump political activism.But was this a case of misinformation or disinformation? The answer lies in understanding how – and inferring a little about why – the video went viral.The video’s protagonist was Dr. Judy Mikovits, a discredited scientist who had previously advocated for several false theories in the medical domain – for example, claiming that vaccines cause autism. In the lead-up to the video’s release, she was promoting a new book, which featured many of the narratives that appeared in the Plandemic video.One of those narratives was an accusation against Dr. Anthony Fauci, director of the National Institute for Allergy and Infectious Diseases. At the time, Fauci was a focus of criticism for promoting social distancing measures that some conservatives viewed as harmful to the economy. Public comments from Mikovits and her associates suggest that damaging Fauci’s reputation was a specific goal of their campaign.In the weeks leading up to the release of the Plandemic video, a concerted effort to lift Mikovits’ profile took shape across several social media platforms. A new Twitter account was started in her name, quickly accumulating thousands of followers. She appeared in interviews with hyperpartisan news outlets such as The Epoch Times and True Pundit. Back on Twitter, Mikovits greeted her new followers with the message: “Soon, Dr Fauci, everyone will know who you ‘really are’.”This background suggests that Mikovits and her collaborators had several objectives beyond simply sharing her misinformed theories about COVID-19. These include financial, political and reputational motives. However, it is also possible that Mikovits is a sincere believer of the information that she was sharing, as were millions of people who shared and retweeted her content online.What’s aheadIn the United States, as COVID-19 blurs into the presidential election, we’re likely to continue to see disinformation campaigns employed for political, financial and reputational gain. Domestic activist groups will use these techniques to produce and spread false and misleading narratives about the disease – and about the election. Foreign agents will attempt to join the conversation, often by infiltrating existing groups and attempting to steer them towards their goals.[Deep knowledge, daily. Sign up for The Conversation’s newsletter.]For example, there will likely be attempts to use the threat of COVID-19 to frighten people away from the polls. Along with those direct attacks on election integrity, there are likely to also be indirect effects – on people’s perceptions of election integrity – from both sincere activists and agents of disinformation campaigns.Efforts to shape attitudes and policies around voting are already in motion. These include work to draw attention to voter suppression and attempts to frame mail-in voting as vulnerable to fraud. Some of this rhetoric stems from sincere criticism meant to inspire action to make the electoral systems stronger. Other narratives, for example unsupported claims of “voter fraud,” seem to serve the primary aim of undermining trust in those systems.History teaches that this blending of activism and active measures, of foreign and domestic actors, and of witting and unwitting agents, is nothing new. And certainly the difficulty of distinguishing between these is not made any easier in the connected era. But better understanding these intersections can help researchers, journalists, communications platform designers, policymakers and society at large develop strategies for mitigating the impacts of disinformation during this challenging moment.Kate Starbird, Associate Professor of Human Centered Design & Engineering, University of WashingtonThis article is republished from The Conversation under a Creative Commons license. Read the original article.
Cook County (IL) Sheriff Tom Dart doesn't appear to know much about the First Amendment. He also doesn't understand Section 230. The grandstanding sheriff has graced Techdirt's page multiple times for suing online marketplaces and strong-arming payment companies in a severely misguided attempt to combat sex trafficking. His assaults on Craigslist and Backpage were terminated by federal courts, which reminded the sheriff of the existence of both Section 230 immunity and the First Amendment. Law enforcement officers may not be required to know the laws they enforce, but they should at least have some passing familiarity with the Constitution.Sadly, Sheriff Dart is still unfamiliar with Constitutional rights and protections. The sheriff's latest violation of rights stems from his decision to engage in pretrial detention practices that ignore the Constitution, as well as changes to local law. The Seventh Circuit Appeals Court doesn't care much for that. Its order [PDF], which allows plaintiffs to continue their lawsuit against the sheriff for violation of their rights, makes it clear the Sheriff's freelancing isn't doing the Fourth Amendment any favors.The opinion opens up with an idealistic quote from the Supreme Court.
In New Hampshire, Facebook has been dealing with a pro se lawsuit from the operator of a cafe, whose Instagram account was deleted for some sort of terms of service violation (it is never made clear what the violation was, and that seems to be part of the complaint). The Teatotaller cafe in Somerset, New Hampshire, apparently had and lost an Instagram account. The cafe's owner, Emmett Soldati first went to a small claims court, arguing that this violated his "contract" with Instagram, and cost his cafe revenue. There are all sorts of problems with that, starting with the fact that Instagram's terms of service, like every such site, say they can remove you for basically any reason, and specifically says:
Protests related to the killing of George Floyd by Minneapolis police officer Derek Chauvin have passed the two-month mark in Portland, Oregon. In response to unfettered liberalism, the Trump administration has sent in the troops. Officers from ICE, CBP, US Marshals Service, and other federal agencies flooded into Portland with the ostensible aim of protecting federal property, like the courthouse targeted by protesters.Instead of a measured response to defuse tensions, federal officers engaged in Gestapo tactics. Unidentified officers in unmarked vehicles began removing protesters from the streets, hauling them away to unknown locations for questioning. Those released after being detained were given no paperwork commemorating their interaction with America's secret police, nor were they told why they had been detained.This wasn't the only broadside against Constitutional rights. Federal officers also attacked journalists and legal observers. This didn't just violate social contracts. It violated the First Amendment. Local journalists and observers sued. And they obtained a restraining order from a federal court blocking federal agents from attacking clearly identified journalists and observers. The court noted that local law enforcement -- which had been hit with an earlier restraining order -- was able to abide by the court-ordered rules of engagement. The court said the federal government offered no plausible argument why it would be impossible to abide by the same restrictions.The [federal] police are rioting.The plaintiffs are back in court asking for sanctions to be brought against the federal government for refusing to abide by the restraining order. (h/t Mike Scarcella)The opening of the motion [PDF] contains some invective, but it appears to be justified.
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How was your Wednesday? I spent 5 and a half hours of mine watching the most inane and stupid hearing put on by Rep. David Cicilline, and the House Judiciary Committee's Subcommittee on Antitrust, Commercial & Administrative Law. The hearing was billed as a big antitrust showdown, in which the CEOs of Google, Facebook, Apple and Amazon would all answer questions regarding an antitrust investigation into those four companies. If you are also a glutton for punishment, you can now watch the whole thing yourself too (though, at least you can watch it at 2x speed). I'll save you a bit of time though: there was very little discussion of actual antitrust. There was plenty of airing of grievances, however, frequently with little to no basis in reality.If you want to read my realtime reactions to the nonsense, there's a fairly long Twitter thread. If you want a short summary, it's this: everyone who spoke is angry about some aspect of these companies but (and this is kind of important) there is no consensus about why and the reasons for their anger is often contradictory. The most obvious example of this played out in regards to discussions that were raised about the decision earlier this week by YouTube and Facebook (and Twitter) to take down an incredibly ridiculous Breitbart video showing a group of "doctors" spewing dangerous nonsense regarding COVID-19 and how to treat it (and how not to treat it). The video went viral, and a whole bunch of people were sharing it, even though one of the main stars apparently believes in Alien DNA and Demon Sperm. Also, when Facebook took down the video, she suggested that God would punish Facebook by crashing its servers.However, during the hearing, there were multiple Republican lawmakers who were furious at Facebook and YouTube for removing such content, and tried to extract promises that the platforms would no longer "interfere." Amusingly (or, not really), at one point, Jim Sensenbrenner even demanded that Mark Zuckerberg answer why Donald Trump Jr.'s account had been suspended for sharing such a video -- which is kind of embarrassing since it was Twitter, not Facebook, that temporarily suspended Junior's account (and it was for spreading disinfo about COVID, which that video absolutely was). Meanwhile, on the other side of the aisle, Rep. Cicilline was positively livid that 20 million people still saw that video, and couldn't believe that it took Facebook five full hours to decide to delete the video.So, you had Republicans demanding these companies keep those videos up, and Democrats demanding they take the videos down faster. What exactly are these companies supposed to do?Similarly, Rep. Jim Jordan made some conspiracy theory claims saying that Google tried to help Hillary Clinton win in 2016 (the fact that she did not might raise questions about how Jordan could then argue they have too much power, but...) and demanded that they promise not to "help Biden." On the other side of the aisle, Rep. Jamie Raskin complained about how Facebook allowed Russians and others to swing the election to Trump, and demanded to know how Facebook would prevent that in the future.So... basically both sides were saying that if their tools are used to influence elections, bad things might happen. It just depends on which side wins to see which side will want to do the punishing.Nearly all of the Representatives spent most of their time grandstanding -- rarely about issues related to antitrust -- and frequently demonstrating their own technological incompetence. Rep. Greg Steube whined that his campaign emails were being filtered to spam, and argued that it was Gmail unfairly handicapping conservatives. His "evidence" for this was that it didn't happen before he joined Congress last year, and that he'd never heard of it happening to Democrats (a few Democrats noted later that it does happen to them). Also, he said his own father found his campaign ads in spam, and so clearly it wasn't because his father marked them as spam. Sundar Pichai had to explain to Rep. Steube that (1) they don't spy on emails so they have no way of knowing that emails were between a father and son, and (2) that emails go to spam based on a variety of factors, including how other users rate them. In other words, Steube's own campaign is (1) bad at email and (2) his constituents are probably trashing the emails. It's not anti-conservative bias.Rep. Ken Buck went on an unhinged rant, claiming that Google was in cahoots with communist China and against the US government.On that front, Rep. Jim Jordan put on quite a show, repeatedly misrepresenting various content moderation decisions as "proof" of anti-conservative bias. Nearly every one of those examples he misrepresented. And then when a few other Reps. pointed out that he was resorting to fringe conspiracy theories he started shouting and had to be told repeatedly to stop interrupting (and to put on his mask). Later, at the end of the hearing, he went on a bizarre rant about "cancel culture" and demanded each of the four CEOs to state whether or not they thought cancel culture was good or bad. What that has to do with their companies, I do not know. What that has to do with antitrust, I have even less of an idea.A general pattern, on both sides of the aisle was that a Representative would describe a news story or scenario regarding one of the platforms in a way that misrepresented what actually happened, and painted the companies in the worst possible light, and then would ask a "and have you stopped beating your wife?" type of question. Each of the four CEOs, when put on the spot like that, would say something along the lines of "I must respectfully disagree with the premise..." or "I don't think that's an accurate representation..." at which point (like clockwork) they were cut off by the Representative, with a stern look, and something along the lines of "so you won't answer the question?!?" or "I don't want to hear about that -- I just want a yes or no!"It was... ridiculous -- in a totally bipartisan manner. Cicilline was just as bad as Jordan in completely misrepresenting things and pretending he'd "caught" these companies in some bad behavior that was not even remotely accurate. This is not to say the companies haven't done questionable things, but neither Cicilline nor Jordan demonstrated any knowledge of what those things were, preferring to push out fringe conspiracy theories. Others pushing fringe wacko theories included Rep. Matt Gaetz on the Republican side (who was all over the map with just wrong things, including demanding that the platforms would support law enforcement) and Rep. Lucy McBath on the Democratic side, who seemed very, very confused about the nature of cookies on the internet. She also completely misrepresented a situation regarding how Apple handled a privacy situation, suggesting that protecting user's privacy by blocking certain apps that had privacy issues was anti-competitive.There were a few Representatives who weren't totally crazy. On the Republican side, Rep. Kelly Armstrong asked some thoughtful questions about reverse warrants (not an antitrust issue, but an important 4th Amendment one) and about Amazon's use of competitive data (but... he also used the debunked claim that Google tried to "defund" The Federalist, and used the story about bunches of DMCA notices going to Twitch to say that Twitch should be forced to pre-license all music, a la the EU Copyright Directive -- which, of course, would harm competition, since only a few companies could actually afford to do that). On the Democratic side, Rep. Raskin rightly pointed out the hypocrisy of Republicans who support Citizens United, but were mad that companies might politically support candidates they don't like (what that has to do with antitrust is beyond me, but it was a worthwhile point). Rep. Joe Neguse asked some good questions that were actually about competition, but for which there weren't very clear answers.All in all, some will say it was just another typical Congressional hearing in which Congress displays its technological ignorance. And that may be true. But it is disappointing. What could have been a useful and productive discussion with these four important CEOs was anything but. What could have been an actual exploration of questions around market power and consumer welfare... was not. It was all just a big performance. And that's disappointing on multiple levels. It was a waste of time, and will be used to reinforce various narratives.But, from this end, the only narrative it reinforced was that Congress is woefully ignorant about technology and how these companies operate. And they showed few signs of actually being curious in understanding the truth.
Among the dated and dumb business concepts exposed as folly during the pandemic is the traditional Hollywood film release window, which typically involves a 90 day gap between the time a move appears in theaters and its streaming or DVD release (in France this window is even more ridiculous at three years). The goal is usually to "protect the traditional film industry," though it's never been entirely clear why you'd protect traditional theaters at the cost of common sense, consumer demand, and a more efficient model. Just because?While the industry has flirted with the idea of "day and date" releases for decades (releasing movies on home video at the same time as brick and mortar theaters), there's long been a lot of hyperventilation on the part of movie theaters and traditionalists that this sort of shift wasn't technically possible or would somehow destroy the traditional "movie experience," driving theaters out of business.The pandemic has changed everything. To the point where AMC Theaters and Universal have struck a pact to shorten the traditional release window, allowing movies to appear on demand just 17 days after they appear in theaters:
The Australian government rang in 2019 by saddling the nation's tech companies with compelled decryption mandates. The new law gave the government the power to demand technical assistance to access any data or communications sought by law enforcement or security agencies. Sure, "case-by-case" solutions might work for awhile, but sooner or later, built-in backdoors would expedite things for both the government and their compellees.The backdoors may not be in place yet, but it appears no one really trusts Australian tech companies now, thanks to the Australian government. An inquiry into the country's anti-encryption laws is underway and local tech giant Atlassian has expressed its displeasure with the new status quo.
It was just days ago that we were discussing Stone Brewing's new campaign to jealously protect all uses of the word "stone" on alcohol branding. The one time advocate brewer claiming to stand up for craft brewing against "Big Beer" has since devolved into a corporate gorilla smashing up the USPTO to get trademarks cancelled and firing off cease and desist notices to small breweries. All this, mind you, as it also wages war on a second front with MillerCoors over Keystone's rebranding as simply "Stone". In that suit, MillerCoors complained that lots of breweries use the word "stone", which appears to have set Stone Brewing off on its bout of aggression.When Sawstone Brewing pushed back on a C&D and failed to work out an agreement with Stone Brewing, the latter initiated an attempt to cancel the former's trademark. Sawstone complained publicly. And now Stone Brewing is busy complaining that the public is being mean to it as a result.
Summary: Social media platforms are constantly seeking to remove racist, bigoted, or hateful content. Unfortunately, these efforts can cause unintended collateral damage to users who share surface similarities to hate groups, even though many of these users take a firmly anti-racist stance.A recent attempt by Facebook to remove hundreds of pages associated with bigoted groups resulted in the unintended deactivation of accounts belonging to historically anti-racist groups and public figures.The unintentional removal of non-racist pages occurred shortly after Facebook engaged in a large-scale deletion of accounts linked to white supremacists, as reported by OneZero:
Earlier this month I noted how the calls to ban TikTok didn't make a whole lot of sense. For one thing, flood of researchers have shown that TikTok isn't doing anything any different than a flood of foreign and domestic services. 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, suggesting it's more about 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 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.That's not to say there aren't security concerns when it comes to installing Chinese-made apps on American devices, but that same argument can be made (but somehow isn't) for an absolute ocean of foreign and domestic services, hardware, and apps. Over the weekend, Kevin Roose at the New York Times made some similar points, noting that things tend to get stupid when you fuse politics with policy and domestic financial interests with national security (especially given lobbyists adore taking advantage of the lack of transparency in the latter):
At the end of last year, the National Institute of Standards and Technology (NIST) released its review of 189 facial recognition algorithms submitted by 99 companies. The results were underwhelming. The tech law enforcement and security agencies seem to feel is a game changer is just more of the same bias we've been subjected to for years without any AI assistance.
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One of the most frustrating claims that critics of Section 230 make is that because of Section 230 the big internet companies have no incentive to deal with awful content (abuse, harassment, bigotry, lies, etc.). Yet, over and over again we see why that's not at all true. First of all, there's strong incentive to deal with crap content on your platform because if you don't your users will go elsewhere. So the userbase itself is incentive. Then, as we've discussed, there are incentives from advertisers who don't want their ads showing up next to such junk and can pressure companies to change.Finally, there are the employees of these companies. While so much of the narrative around internet companies focuses (somewhat ridiculously) on the larger-than-life profiles of their founders/CEOs, the reality is that there are thousands of employees at these companies, many of whom don't want to be doing evil shit or enabling evil shit. And they have influence. Over the past few years, there have been multiple examples of employees revolting and pushing back against company decisions on things like government contracts and surveillance.And, now they're pushing back on the wider impact of these companies. That's a Buzzfeed article detailing how a bunch of employees inside Facebook are getting fed up with the company's well-documented problems, its failure to change, and its failure to take into account its broader impact.
While the Trump administration and its allies (like Josh Hawley) like to talk a lot about monopolization in "big tech," they couldn't actually care less about monopolies or their impact on competition. For example while Hawley and the Trump FCC/DOJ have made an endless stink about the power of "big tech," that's largely for performative political reasons, namely to perpetuate the utterly false claim that Conservatives are being "censored," to bully tech giants away from encryption, or to frighten them away from finally doing something about the (profitable) bigotry and disinformation problems that plague their networks.Oddly, this performative, sometimes vindictive nonsense is often conflated with actually caring about monopoly power and reforming antitrust. You only need to look at the DOJ and FCC's mindless rubber stamping of every fleeting whim of the US telecom industry, one of the most heavily monopolized (and widely despised) sectors in technology. While T-Mobile was getting the red carpet rolled out for its competition and job killing merger with Sprint, Bill Barr's DOJ was busy hassling small cannabis companies, or filing empty-headed "antitrust" lawsuits against automakers for agreeing to limit emissions.Studies from the likes of the Antitrust Institute (pdf) have made it very clear: the Trump administration's interest in "antitrust reform" is utterly and completely hollow. During an era when lagging antitrust enforcement needed to be meaningfully improved and reformed, the Trump administration instead began wielding antitrust as a political bludgeon to gain leverage over its enemies and dole out favors to its allies. It's mindless theater and an abuse of the law, yet it's often portrayed as serious adult policy making by many experts and the press.Despite ongoing whistleblower investigations of Barr's politicization of antitrust, his DOJ is now rubber stamping the merger between native advertising platforms Taboola and Outbrain. EU and UK regulators have been scrutinizing the deal, arguing it will erode competition in the native advertising (read: clickbait) space, resulting in notably worse terms for already struggling publishers who face getting an even smaller share of advertising revenue:
They say that only two things are certain in life: death and taxes. But here on Techdirt, we have a third certainty: that governments around the world will always seek ways of gaining access to encrypted communications, because they claim that things are "going dark" for them. In the US and elsewhere, the most requested way of doing that is by inserting backdoors into encryption systems. As everyone except certain government officials know, that's a really bad idea. So it's interesting to read a detailed and fascinating report by Matthias Monroy on how the EU has been approaching this problem without asking for backdoors -- so far. The European Commission has been just as vocal as the authorities in other parts of the world in calling for law enforcement to have access to encrypted communications for the purpose of combating crime. But EU countries such as Germany, Finland and Croatia have said they are against prohibiting, limiting or weakening encrypted connections. Because of the way the EU works, that means the region as a whole needs to adopt other methods of gaining access. Monroy explains that the EU is pinning its hopes on its regional police organization:
Professional sports is now fully in the weeds trying to navigate reopening live sports events during the ongoing COVID-19 pandemic. It's not going great, frankly. NFL players are beginning to opt out of the season, citing health concerns. Golfers have been trickling out of events due to positive COVID-19 tests. MLB, meanwhile, just found itself with four teams unable to play the other night due to roughly a third of the Florida Marlins popping positive for the virus. Given that these leagues just started reopening, it's not a good sign.Still, I won't lie and say it hasn't been nice to see baseball back on my TV again. And, as we wrote about recently, what the league is trying to do with innovation around piped in crowd noise and its MLB app is downright cool. But not all tech solutions are good ones and Fox Sports' use of video game graphics to input fake crowds into stadiums on the screen is pretty terrible.
Forty-five years after a law was passed in New York allowing public agencies to withhold employees' disciplinary records from the public, it was finally taken off the books by the state's legislature. The law -- known by its statute number "50-a" -- hadn't really been an obstacle to the limited transparency begrudgingly extended by the NYPD until the department suddenly decided it was no longer interested in sharing information about disciplined officers with journalists.The decision to start following the letter of the law occurred in 2016. Four years later, the state legislature erased it, making these records accessible again. The Police Benevolent Association (PBA) -- one of two NYPD unions -- sued to block the release of records created by the city's Civilian Complaint Review Board (CCRB). The PBA secured a temporary restraining order earlier this month, blocking the release of these records. The federal judge also forbade the ACLU from releasing documents it had already obtained until the PBA's appeal has been addressed.Here's the strange thing: the New York branch of the ACLU isn't a party to this suit. The PBA sued the city and mayor over the records. The ACLU is going to fight the bizarre order from Judge Katherine Polk Failla. But ProPublica also has a copy of these records. And it's not going to bother with speaking to Judge Failla. After all, it's not a party to this lawsuit either. The temporary restraining order the PBA obtained is permanently worthless.
As we mentioned on Friday, on Monday, the NTIA followed through on a key part of Trump's executive order on Section 230, asking the FCC to weigh in on interpreting the law. Everything about this is crazy. The NTIA request was almost certainly written by a recently hired lawyer who has spent the last couple of years attacking Section 230. He's also the same lawyer who sued Twitter on behalf of a white supremacist, and when I had reached out to him over email to ask him how that made sense under 230, insisted to me that Section 230 was a narrow statute that only applied if it was about protecting children. I can't say for sure, but my email exchange with him suggested to me that he was wholly unaware of Section 230 prior to me asking about it. Either way, that case failed spectacularly, and Adam Candeub has spent the past two years attacking 230 on various panels. And now he's deputy secretary at NTIA in charge of this issue.The petition to the FCC is performative nonsense, just like the Executive Order that preceded it. The FCC has no authority over internet edge providers. It has no authority to interpret Section 230. That's for the courts. And if Congress doesn't like how the courts have interpreted the law, then it's on Congress to change the law. The FCC has literally no authority at all to deal with this issue. And, you would think that since we're living in an era where the current FCC, under Chair Ajit Pai, has been literally giving away whatever authority the FCC actually has regarding the area it does have oversight concerning (namely internet access providers), that it would take a similar hands off approach to the NTIA request. Unfortunately that doesn't seem likely.Pai has remained basically silent on this issue since the executive order came out. His fellow Republican Michael O'Rielly has suggested it's probably unenforceable gibberish. However, the third Republican on the Commission, Brendan Carr, has spent the last few months gloating and tweeting Trumpian nonsense about how "big tech" is censoring conservatives and something must be done (that this is 100% diametrically opposed to his views on regulating broadband access providers is not something he thinks you should concern yourself with -- this is a Trumpian world we're living in and so all that seems to matter regarding regulatory control is which companies you like and which you don't like).Carr published a hilariously ridiculous plan to regulate big internet companies in Newsweek to coincide with the NTIA petition, which he knew was coming. He claims -- hilariously incorrectly -- that the success of big internet is not because of the free market, which he as a good Republican has to pretend to support, but rather through "crony capitalism" like... Section 230. In fact, he flat out misleads everyone in claiming that Google abused its power to shut down the comments of The Federalist because it's a conservative publication. Carr ignores that Google did the same thing to us, even though he knows they did it to us, because I told him about it and he follows me on Twitter.But to argue that 230 is crony capitalism is to ignore facts (apparently, a Carr specialty). Section 230 does not favor any particular company. It applies equally to all websites, including small ones. Indeed, our empirical study showed that 230 helped create more competition, not less.On the Democratic side, Commissioner Jessica Rosenworcel seems to be alone in being willing to call bullshit on this ridiculous NTIA petition:
On Friday, we wrote about the bad reporting concerning Nick Sandmann's settlement with the Washington Post, that nearly every knowledgeable lawyer figures was likely for "nuisance value" to get rid of the lawsuit. We noted that the NY Post's coverage of it misleadingly suggested that the kid got many millions of dollars, when there's no evidence to support that conclusion, and plenty to suggest he got very little. If you want a thorough debunking of "the kid got paid" narrative, this thread by @RespectableLawyer lays out the details. As we had noted in our post, the court had already rejected nearly all of the claims in the case, and only allowed it to be reinstated to allow for very narrow discovery on very narrow issues which Sandmann almost certainly would not have won on. There was basically no chance Sandmann would win the case. So, a nuisance fee settlement makes it worthwhile to everyone. The paper gets out of the case for less than the cost of going through discovery and the whole summary judgment process, and Sandmann gets to say he got paid, without ever saying how little.
Infamous copyright troll Richard Liebowitz didn't have a very good Monday. Facing massive sanctions and quite an incredibly detailed order exposing his long trail of disobeyed orders and lies to courts across the country, with just a week before he had to comply, Liebowitz (1) appealed to the 2nd Circuit to put a stay on the original order, and (2) asked the original judge to lift the non-monetary sanctions as being unfair. The district court judge, Jesse Furman, wasted almost no time at all in rejecting that request highlighting (among many other things) that Liebowitz and the actual lawyers he hired to represent him waited until about the last possible minute to make that request.If Liebowitz was hoping the 2nd Circuit would bail him out as well, that didn't work either. As first pointed out by Mike Dunford, the 2nd Circuit has denied the request for a stay, and has said the larger appeal will be heard the week of August 10th. That's a pretty quick turnaround. But, worse for Liebowitz, this denial of the stay comes on the deadline by which Liebowitz was required to file a copy of the original opinion and order from Judge Furman in every docket of any currently pending case brought by Liebowitz.For much of the day yesterday, we wondered if Liebowitz would actually obey the order, and late last night, he finally got around to it, trying to squeeze it in just as the deadline ran out. It would be nearly impossible to check every single one of his remaining cases, but it does appear that he filed the order in some of his ongoing cases, though he included a petulant note on the cover page:
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