Over the summer, we wrote about a very strange lawsuit brought by the Estate of Sir Arthur Conan Doyle against Netflix and the makers of the forthcoming film Enola Holmes. What made much of this head-scratching is that the vast majority of ACD's Sherlock Holmes works are old enough to have entered the public domain. In the lawsuit, the Estate points out that there are ten Sherlock stories that are not in the public domain, however. And that because the Holmes character in those stories is both more emotional and -- checks notes -- likes dogs, that somehow that makes any depiction of the Holmes character having emotions and liking dogs as somehow copyright infringement. Also, there is a trademark claim for using "Holmes" in the film's title, which is dumb because it's a work of art and the public domain character's name being part of the film's title is of artistic merit.So let's focus on the copyright claim, instead. Or, rather, let's let the filmmaker's motion to dismiss focus on it, so thoroughly did they excoriate the Estate. We'll start with two claims made by the Estate as to protectable elements of the Holmes character: that the later works showed his warming relationship with his sidekick Watson and -- checks notes again in disbelief -- sigh, that he likes dogs. Well, the filmmakers suggest that those are sort of irrelevant since the film doesn't depict Holmes interacting with either Watson or dogs.
Pretextual stops are bread-and-butter for cops. There's plenty of real crime out there waiting to be solved, but that requires time and attention that law enforcement apparently just doesn't have. So, a lot of what passes for "law enforcement" is just officers rolling the dice on vehicle searches, hoping to find something illegal (or at least some cash) to justify the roadside harassment.Here are the depressing facts about the crime solving abilities of law enforcement:
Back in 2015, frustration at John Deere's draconian tractor DRM culminated in a grassroots tech movement dubbed "right to repair." The company's crackdown on "unauthorized repairs" turned countless ordinary citizens into technology policy activists, after DRM (and the company's EULA) prohibited the lion's share of repair or modification of tractors customers thought they owned. These restrictions only worked to drive up costs for owners, who faced either paying significantly more money for "authorized" repair, or toying around with pirated firmware just to ensure the products they owned actually worked.Of course the problem isn't just restricted to John Deere. Apple, Microsoft, Sony, and countless other tech giants eager to monopolize repair have made a habit of suing and bullying independent repair shops and demonizing consumers who simply want to reduce waste and repair devices they own. This, in turn, has resulted in a growing push for right to repair legislation in countless states.The movement scored another big win this week on the news that 74.8% of Massachusetts voters (so far) just approved an expansion to an existing Massachusetts law, resulting in one of the most comprehensive right to repair laws in the nation. The original law was the first in the nation to be passed in 2013. The update dramatically improves the law, requiring that as of 2022, all new telematics-equipped vehicles be accessible via a standardized, transparent platform that allows owners and third-party repair shops to access vehicle data via a mobile device.More simply, that means users can take their vehicle to any repair shop and have easy, transparent access to vehicle data, without running into obnoxious restrictions or having to visit a more expensive dealership mechanic using proprietary tools. The auto industry, as you might expect, tried really hard to scuttle the law, at one point falsely arguing it would "aid sexual predators" (seriously). Apple, Microsoft and others eager to boost revenues via repair monopolies have also, routinely, tried to falsely portray basic repair rights as somehow nefarious and dangerous.Needless to say, right to repair advocates like iFixit CEO Kyle Wiens were very happy with the law's passage:
A large group of patent holders sent a letter to Congress expressing concern that, since the US Patent and Trademark Office (USPTO) Director Iancu might soon be leaving, recent policies making it harder to challenge bad patents might be reversed. The letter concerns a process created somewhat recently, called inter partes review (IPR), that allows the USPTO to take a second look at the patents they issue based on a public request.This is important because 43% of all issued patents challenged in court are ultimately found to be invalid, albeit at great expense due to the high costs of patent litigation. An IPR, by contrast, offers a far faster and less expensive way to challenge patents than using the courts, with the average IPR costing around $350,000 compared to litigation costs just shy of $1 million when defending against infringement claims brought by an NPE. It is no surprise that many who profit off patents do not like a process that makes it easier to find out if those patents are valid.The letter states that “Director Iancu has clearly changed the dialogue surrounding patents, defined the patent system by the brilliance of inventors, the excitement of invention, and the incredible benefits they bring to our economy and society as a whole.” While a lot of this is true, celebrating the brilliance of inventors and the benefits of patents ignores the very real direct and indirect costs of the current patent system. Patents can issue for inventions that don’t actually work or exist. This was true of Theranos, a company built around patents with technology that didn’t work or exist. Patents can also be used to try to win big paydays on seemingly unrelated products. This happened again with Theranos, whose patents were bought and used against a company making covid-19 tests.Then there are also many, many, silly patents that get issued that usually don’t matter because very few people want the thing the patent describes. It would be weird if these inventors got to dictate patent policy. But here we are, as a large number of the inventors signed to this letter have very silly patents (feel free to find your own favorites):
Law enforcement training is sketchy stuff. We didn't get to where we are today without telling a blend of do-gooders and bullies that it's the public who's wrong and the blue line warriors who are right. The "us vs. them" mindset seems to have accelerated in recent years, urged on by overheated rhetoric about criminals outgunning the cops (despite historically-low crime rates) and the federal government's willingness to tart up local gendarmes with war gear at zero cost.The training tends to tell officers every kill is a good kill -- one that will be rewarded with some pretty awesome sex, if nothing else. It also tells them every person is a latent threat, one that should be responded to with whatever use of force the officer feels necessary. To trainers, the general public is, at best, a nuisance. At worst, it's an anarchic force of unpredictable evil. If the officer wants to make it home every night, it's better safe than sorry.Now, let's turn to the world of journalism. The internet has equalized everything, giving independent journalists the same potential power as long-established journalistic concerns. Anyone can "break" a story, using little more than a social media account and some public records. This shift of power was recently demonstrated by two teens writing for the Manual Redeye, the paper of record for Dupont (KY) Manual High School. The two authors are a combined 30 years of age.Manual students Satchel Wilson and Cooper Walton obtained training documents from the Kentucky State Police via a public records request by attorney David Ward, who is involved in a lawsuit over state troopers' killing of Bradley Grant in 2018. Ward requested information about the training received by one trooper involved in the shooting and received a truly disturbing presentation in return.It opens with some really fucked up bullet points before heading into even darker territory. The first few slides list the presentation's "objectives," which include "list the qualities that make up a good value system during combat and the "warrior's chosen path." It's titled "The Warrior Mindset."By the presentation's fifth slide, the presenter/compiler has decided to start quoting some pretty questionable "leaders," starting with Confederate general Robert E. Lee. It appears under the amazingly wrongheaded title "The Thin Gray Line."As the two teens report, the presentation moves on from a Confederacy figurehead to the Big Bad himself.
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It doesn't pay to anger the man in charge. Trump's DOJ is more vindictive than most, it appears. Documents obtained via a FOIA request by Lawfare shows the FBI is more motivated to hunt down internal critics of this administration than any other it has served previously.Two agents involved in the investigation of Hillary Clinton's email server have already been served up for punishment by this administration for their texted anti-Trump sentiments. Their political texts violated FBI internal guidelines -- ones meant to prevent personal feelings from tainting investigations. But to date, the FBI really hasn't done much about this sort of behavior. It took criticism of Trump to force the FBI to finally start dealing with this misconduct.As Scott Anderson and Benjamin Wittes point out, this recent discipline is an anomaly.
As our current Techdirt Greenhouse panel is exploring, COVID-19 has shone a very bright light on the importance of widely available, affordable broadband. Nearly 42 million Americans lack access to any broadband whatsoever--double FCC estimates. 83 million are stuck under a monopoly. Millions can't afford service thanks to a lack of competition among very powerful, government pampered telecom monopolies, despite untold billions in federal and state subsidies for fiber networks that routinely, consistently, wind up only half deployed.Instead of tackling the corruption that makes state and federal regulatory capture possible, or embracing policies that drive more competition to market (AT&T, Verizon and Comcast don't much like either), the U.S. routinely enjoys just throwing more taxpayer money at the problem in the hopes things somehow, this time, improve. While that's sometimes certainly a helpful path, more often than not the money doled out to industry giants gets misdirected and wasted, in large part because (and pardon me for being redundant), nobody bothers to genuinely hold U.S. telecom incumbents accountable for much of anything, ever.The latest case in point: last March Congress passed the CARES Act, our last (and only) major relief package for those struggling under COVID-19. Included in the bill was $375 million in new funding for various telecommunications related government projects. A chunk of that money ($100 million) was earmarked for additional broadband deployment grants under the RUS’s broadband deployment pilot program, which was originally created in 2018 with $600 million in funding.The problem: restrictions mean that many locations were forced to rush and spend that money before the end of the year, or it gets returned to the federal government. Given the time-intense complexity of getting broadband deployed to rural areas, the obvious reality that COVID isn't going away, and a broken Congress' inability to pass any more public or infrastructure aid during a historic health crisis, that's obviously pissing some people off:
Belatedly realizing its reputation is a burning dumpster floating in a sewage retention pond, Clearview is finally trying to turn things around. Building a database of personal info and photos scraped from public websites, the company turned its product over to anyone who was interested. Private companies, billionaires, dozens of police departments -- all were invited to play with Clearview's toy, which set an untested facial recognition algorithm loose in the billions of images in its database.Clearview likes to claim its tool is helping solve crimes. Police departments referred to in marketing materials and public statements have almost always disagreed with Clearview's self-assessment. Now, Clearview is trying to patch up its relationship with the public by altering its relationship with law enforcement agencies. CEO Hoan Ton-That is promising some sort of reform effort here, but his promises of a better, more trustworthy Clearview are as empty as its database is full.
After many years of fierce resistance to open access, academic publishers have largely embraced -- and extended -- the idea, ensuring that their 35-40% profit margins live on. In the light of this subversion of the original hopes for open access, people have come up with other ways to provide free and frictionless access to knowledge -- most of which is paid for by taxpayers around the world. One is preprints, which are increasingly used by researchers to disseminate their results widely, without needing to worry about payment or gatekeepers. The other is through sites that have taken it upon themselves to offer immediate access to large numbers of academic papers -- so-called "shadow libraries". The most famous of these sites is Sci-Hub, created by Alexandra Elbakyan. At the time of writing, Sci-Hub claims to hold 79 million papers.Even academics with access to publications through their institutional subscriptions often prefer to use Sci-Hub, because it is so much simpler and quicker. In this respect, Sci-Hub stands as a constant reproach to academic publishers, emphasizing that their products aren't very good in terms of serving libraries, which are paying expensive subscriptions for access. Not surprisingly, then, Sci-Hub has become Enemy No. 1 for academic publishers in general, and the leading company Elsevier in particular. The German site Netzpolitik has spotted the latest approach being taken by publishers to tackle this inconvenient and hugely successful rival, and other shadow libraries. At its heart lies the Scholarly Networks Security Initiative (SNSI), which was founded by Elsevier and other large publishers earlier this year. Netzpolitik explains that the idea is to track and analyze every access to libraries, because "security":
Summary:Between around 2013 and 2015 there was a sudden popularity of so-called “anonymous” social networks. A few had existed before, but suddenly the market was full of them: Whisper, Secret and Yik Yak received the most attention. All of them argued that by allowing people to post content anonymously, they were helping people, allowing them to express their true thoughts rather than repress them. Whisper and Secret both worked by letting people anonymously post short text, which would be shown over an image in the background.In practice, many of the apps filled up with harassment, bullying, hateful content and the like. Whisper, as one of the bigger companies in the space, invested heavily in content moderation from early on, saying that it had set up an outsourced team (via TaskUs in the Philippines) to handle moderation. However, questions of scalability became an issue, and the company also built software to help with content moderation, called “The Arbiter.” In press reports, Whisper employees suggested “The Arbiter” was almost perfect:
A federal judge shut down the NYPD's "stop and frisk" program back in 2013, finding the suspicionless stops (mainly of minorities) were unconstitutional. Then-mayor Mike Bloomberg defended the program -- often frothily -- by claiming it was essential to maintaining order. Without stop and frisk, the streets would be awash in deadly criminals and their deadly weapons. An actual look at the data showed something else: barely any guns recovered, tons of minimal busts for marijuana possession, and about 90% of people released with no citations or arrests.But stop and frisk never really stopped. That's the assertion made by a class action lawsuit recently filed against the NYPD. The "frisk" part may have been dialed back a bit, but there are still plenty of suspicionless stops being made by NYPD officers, according to this report by Alice Speri of The Intercept.
Both unintentionally and by design, we have reinforced a digital caste system that continues to divide communities into the “haves” and “have-nots.” What still remains unclear is not whether we can reverse engineer the disparate impact, but whether we, as a nation, believe that every resident in every community deserves equal access to a digital society.It is hard to argue with the facts. While remote learning mandates remain in place, six in ten low-income students have to attend online classes via cell phone or search for a public WiFi access point, while others have simply disappeared from their class rosters because they do not have a device to get online. Approximately half of Americans living on Tribal lands and one-third of those living in rural areas still do not have reliable connections. Their job opportunities, online businesses, and remote access to health care have suffered accordingly.Roughly one-third of African American and Hispanic households struggle with digital access, adoption, and literacy. Deutsche Bank estimates that “76% of Blacks and 62% of Hispanics could get shut out or be underprepared for 86% of jobs in the US by 2045.” Meanwhile, over forty percent of adults at or below the poverty line do not have reliable broadband of any kind.This is everyone’s problem. And how we arrived here is less mysterious than it seems.Since the National Broadband Plan was introduced in 2010, we have learned that when the market rewards providers with profits and control, they will come. However, relying on market forces alone cannot ensure that every community has access to broadband, a vital public good as important as electricity or clean water.Federal policy designed to support broadband deployment strategies were based on the assumption that local and state entities would carry the mantle on increasing adoption. But, particularly in the wake of COVID-19, local and state governments are strapped for resources. Even if they are able to scrape together investments for digital infrastructure and adoption programs, few have adequate resources to do both well.The digital divide has been relentless and unforgiving in the most under resourced communities, which have concurrently had to combat the threats from the COVID-19 pandemic, economic instability, and food insecurity. Ironically, being able to get online remains most elusive for those in the greatest need of digital pathways out of poverty.The internet has increasingly become the public square just as high-speed connectivity has become the lifeblood of our economy. In a post-COVID landscape, when Americans need broadband to work and learn from home and medical attention requires making an appointment online, access impacts our quality of life. It also determines who and how households will recover from the pandemic and its economic fallout.What’s more, the internet has introduced once unimaginable possibilities for the most disenfranchised voices among us. Standing Rock. Flint. Minneapolis. These movements are a part of our lexicon, in part, because organizers had access to a universal platform, then dared the nation to collectively say her name – equality.We need a plan, the kind that reaches every corner of the U.S. We need a nationwide strategy for broadband access that recognizes the importance of high-performance digital infrastructure and supports widespread adoption.Above all, this needs to be a priority for every level of government, working together to encourage interagency participation and public-private partnerships that fuel innovation. Otherwise, we will continue to miss out on the productivity and imagination of the millions struggling with access.Francella Ochillo is an attorney and digital rights advocate who has worked on a variety of technology and telecommunications issues. Her work often highlights how policy proposals impact unserved and underserved communities.
The Trump Administration's desire to turn protests against police brutality into an antifa conspiracy have failed. But not for a lack of trying. Federal officers have been sent to major cities still experiencing unrest, but arrest data and DOJ press releases show there's very little evidence that coordinated groups of anarchists are behind the violence and property destruction witnessed around the nation. Instead, it appears to be a loose assortment of white dudes who've spent too much time talking themselves up on social media.Why the government of a free nation would direct its efforts at rooting out anti-fascists is beyond me, but efforts continue to be made. To justify their own existence, federal officers handling protests are turning regular riot crime into federal riot crime. Prosecutors are pursuing federal charges when state charges are perfectly capable of handling arrestees -- all in hopes of vindictively adding years to their sentences.There are, of course, First Amendment implications to these federal efforts. This has been demonstrated before, with the feds' attempts to toss a bunch of inauguration day protesters in the slam for an extended period of time. These were the first protests prosecuted under Trump, and the prosecutions went nowhere even as federal officers attempted to go everywhere. The government issued broad subpoenas and warrants and accused the people it failed to prosecute of "hiding behind the First Amendment."This perceived "hiding" behind inalienable rights continues to aggravate Trump's DOJ. The efforts -- which began with the pretty-fucking-fascist act of protesters being spirited away for questioning by unidentified officers driving unmarked vehicles -- continue. As The Intercept reports, feds are leveraging their prosecutorial discretion to inflict maximum pain on people who have a beef with their public servants. All it takes is the use of social media to turn state crimes into federal crimes. The same goes for targeting any recipient of federal funds, which includes nearly every local law enforcement agency.The head of the Prosecution Project (which is tracking government prosecutions of demonstrators) says the federal government is using the existence of the internet to amp up charges against protesters.
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Comcast is informing the company's 20+ million cable TV customers that they may lose access to Comcast TV channels next month if Comcast can't come to some sort of agreement with... Comcast.It's an absurd twist on the already annoying practice of carriage disputes, where customers pay the price for broadcasters and cable TV providers being unable to come to terms on new agreements after old ones expire. Usually, this involves both the cable company and the broadcaster trying to get customers pissed at the other guy, despite both sides pursuing relentless rate hikes (be it for programming or cable set top box rental). Usually this results in outages that customers don't get refunds for, after which a new confidential deal is struck and consumer prices go up anyway.While there have been some flimsy discussions about protecting consumers from these kinds of stand offs, not much comes of them. Matthew Keys notes how this particular standoff effectively involves Comcast bickering with itself (Comcast NBC Universal):
When schools finally re-open to everyone and COVID is behind us (est. 2025), students will possibly have the chance to join their friends in some good old-fashioned American reeducation. God bless this autocracy.For all of his socialism bashing, Donald Trump and his admin staff sure seem to want to align the United States with the great Communist dictatorships of the past and present. Trump welcomed America to join him in the erection of a police state and just kept going from there. Cops received even more presidential coddling and the Administration decided the state of free speech might improve if the federal government directly meddled with social media moderation.Then there's the erection of walls and the increase in inland Checkpoint Charlies as the result of the president's focus on brown people from foreign lands. Protests against police brutality have been met with Gestapo tactics designed to limit the effect of people uniting against fascism. And the President's hatred of a free press, "closed" defamation laws, and non-sycophants has been noted repeatedly.The latest Presidential proclamation is as problematic as his call for flag burning prosecutions. In reaction to people sensibly suggesting a lot of this country's "greatness" is built on the backs of slave labor and racist policies, President Trump has developed a plan for patriotic indoctrination of the nation's students. A new Executive Order mandates the formation of a committee to push for more jingoism in our schools. Better red-white-and-blue than dead, indeed.
For four years, all we've been hearing about is how social media was this terrible source of disinformation that had to be regulated because they were destroying democracy and all that. And so what happened last night/early this morning when Donald Trump falsely tried to claim he had won prior to all the votes being counted? Twitter and Facebook both reacted pretty quickly to flag the information, and highlight that it was misleading or false (and Twitter limited the ability to share it).
We have discussed at some length the intersection of copyright laws and antiquated video game preservation. Going back at least a decade now, most of that focus has been on whether the use of emulators and the digitization of games that no longer have systems to run them ought to qualify as fair use. You can couple that with the more recent trend of some museums with a focus on the art of video games seeking to get exceptions to the DMCA's anti-circumvention rules in order to preserve both offline and online games that might otherwise be lost to the ether. When viewed properly through the lens that copyright law exists for the purpose of promoting more culture, not less, it should be immediately obvious that preserving culture in this manner is one of the chief aims of fair use and copyright law in general.But it's not just the games themselves being preserved by fair use provisions. One dedicated man has led a six year effort to digitize and preserve the game manuals for every Super Nintendo game ever created.
It's been almost a decade since US and New Zealand forces did a silly made-for-Hollywood (and possibly by Hollywood) raid of Kim Dotcom's home in New Zealand for the crime of running a cloud storage service that some people used for infringing works. Since that time, Dotcom has been fighting extradition charges to the US. The case has taken many crazy twists and turns, including the US government seizing his assets by claiming he's a fugitive, even as he's been going through the standard legal process to determine if extradition is proper (and there's a very strong legal argument it is not even remotely proper).That said, while Dotcom has won rulings showing illegal activity in how he was surveilled and arrested, he's also lost his attempts to block the extradition.The latest ruling, from New Zealand's Supreme Court is unfortunately more of the same. The court has found that he can be extradited on 12 of the 13 charges against him, but also noted the procedural problems that have plagued the case mean that he still cannot be extradited. Specifically, the Supreme Court found that Dotcom (and his colleagues who were also arrested) were denied judicial review of the original ruling in the district court in 2015.Dotcom and his lawyers have (accurately) stated that the ruling "is a mixed bag." But it's mostly mixed with bad news for Dotcom. The good part is just that he doesn't have to get shipped off to the US right away.But on the whole this is a bad ruling for Dotcom. The key issue at play gets deep into the copyright weeds, about theories regarding criminal inducement of infringement, and whether or not New Zealand and the US have matching crimes. Unfortunately, so far it looks like the New Zealand courts (like too many of the US courts) don't really care to look at the actual specifics of what's in the law and just lump together a bunch of different concepts around "copyright infringement bad," without being willing to understand that building a platform that is used for infringement is not the same thing as infringing yourself. The court didn't seem to understand the difference here -- which is unfortunately not that surprising, but it is disappointing. These kinds of rulings damage the open internet, limit the kinds of services that can be built, and bring us closer to a locked down broadcast-only internet, the kind which Hollywood wants.
There are countless debates raging over every aspect of internet regulation — questions of social media moderation, net neutrality, antitrust, copyright, privacy, and plenty more — and the election happening right now is going to have a huge impact on those debates. This week, we're joined by international policy expert and former European Parliament member Marietje Schaake for a long conversation that starts out focused on criticisms of Facebook and quickly expands into a far-reaching look at what the next generation of internet regulation might look like.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.
Get your Not How This Works gear in the Techdirt store on Threadless »We deal with a lot of... incorrect takes here at Techdirt. Whether it's a technological issue, a business concept, a legal question, or some combination thereof, there's always someone espousing an idea that is wrong in almost every respect (see: the current discourse around Section 230). So today we're launching our latest line of Techdirt gear featuring a general purpose reply that we've found ourselves screaming (internally or otherwise) in many such situations: That's Not How Any Of This Works.As always, both designs are available on t-shirts, hoodies, sweaters and other apparel — plus various cool accessories and home items including buttons, phone cases (for many iPhone and Galaxy models), mugs, tote bags, notebooks, and of course face masks.Check out this and our other gear in the Techdirt store on Threadless »
Get your Not How This Works gear in the Techdirt store on Threadless »We deal with a lot of... incorrect takes here at Techdirt. Whether it's a technological issue, a business concept, a legal question, or some combination thereof, there's always someone espousing an idea that is wrong in almost every respect (see: the current discourse around Section 230). So today we're launching our latest line of Techdirt gear featuring a general purpose reply that we've found ourselves screaming (internally or otherwise) in many such situations: That's Not How Any Of This Works.As always, both designs are available on t-shirts, hoodies, sweaters and other apparel — plus various cool accessories and home items including buttons, phone cases (for many iPhone and Galaxy models), mugs, tote bags, notebooks, and of course face masks.Check out this and our other gear in the Techdirt store on Threadless »
If Trump Wins...For Republicans, bashing “Big Tech” has become as central to the Culture War as bashing the “Big Three Networks” once was. Demanding “neutrality” from social media companies has become what “net neutrality” has been for Democrats: the issue that sucks up all the oxygen in the room — except far more politically useful.ISPs aren’t in the content moderation business, but social media would be unusable without it. (Just try using 8Kun or Gab!) Democrats have always struggled to identify real-world examples of net neutrality violations, but Republicans find “anti-conservative bias” everywhere, everyday. Content moderation at the scale of billions of posts is wildly imperfect, so anyone can find examples of decisions that seem unfair. But Republicans won’t settle for mere “neutrality.” They want to end Section 230’s legal protections for moderating hate speech, misinformation, using fake accounts to game algorithms, and most foreign election interference. All of these tend to benefit Republicans, so moderating them seems to prove the claim that “Big Tech” is out to get conservatives.This won’t just be empty rhetoric anymore. Making every tech issue about “bias” will make most tech legislation impossible, but Trump won’t really need new legislation. He’ll finally weaponize the two independent agencies that regulate tech: the Federal Communications Commission and the Federal Trade Commission. Their current chairmen are traditional Republicans and serious lawyers uninterested in playing political games. But in August, Trump abruptly withdrew the renomination of Republican stalwart Mike O’Rielly after he obliquely criticized Trump’s Executive Order demanding political “neutrality” of social media. Trump quickly nominated the junior administration staffer behind the White House’s crackdown. No one should doubt that the next FCC and FTC chairmen will be Trump loyalists unencumbered by legal or constitutional scruples — and eager to turn the screws on Trump’s “enemies.” Each agency will become ever more a political battleground in which "tech" issues serve as proxy war for deeper cultural conflict.If Biden Wins...Trump called “Sleepy Joe” a tool of the “radical, socialist left.” Biden insisted his primary victory was a mandate for centrist pragmatism. Perhaps nowhere will Biden’s leadership be tested more than in tech policy.Congress hasn’t passed substantial tech legislation since 1996 — and even that overhaul of the Communications Act (of 1934!) mostly reflected pre-Internet assumptions and fears. Congress used to make regular course-corrections through biennial reauthorization of federal agencies — but stopped in 1998, the year Congress became pure political spectacle. The FCC and FTC have since been left to improvise. The FCC’s long been a “junior varsity Congress” — same political baggage, no electoral accountability. The more serious FTC is trending that way. Each change of the White House means increasingly large shifts in tech policy.These problems are as thorny as our broken judicial nomination process — and equally unlikely to be corrected through our broken legislative process. If Biden wants to be remembered for resolving them, he’ll need to do for tech what he’s proposed for the courts: convene an expert bipartisan commission with a clear mandate to develop once-in-a-century legislation, and then get ‘er done.Biden’s nominations for FCC and FTC Chairs will reveal whether he’s genuinely interested in leading on tech — or content, like Trump and Obama, to exploit tech issues to excite his base. Strong Chairs in Biden’s mold could build Congressional consensus for significant, but viable, and therefore moderate, legislation. But if he picks bomb-throwers over problem-solvers, we’ll have four more years of the same digital culture wars — and creating a stable digital-era regulatory framework may have to wait several more presidencies.Section 230If Trump Wins...Republican fulmination about “anti-conservative bias” will continue to escalate. Don’t expect Republicans to pass any legislation. But they’ve always been more interested in stoking resentment among their base — and using threats of legal action to coerce large tech companies to change their content moderation practices in ways that help Republicans.The FCC will proceed with a rulemaking to sharply limit Section 230’s protections. The only question is whether Ajit Pai issues a more restrained proposal on transparency mandates before he leaves the FCC. If not, Brendan Carr (or whoever Trump might appoint to replace Pai) could propose most or all of what NTIA has asked for. This dynamic will make it difficult for bipartisan legislation to pass amending 230, but something like the EARN IT Act and other amendments targeted at unlawful content might pass.If Biden Wins…Many Republicans will blame “Big Tech” for their losses, and claim that “election interference” (by Big Tech) delegitimized the new administration. They’ll do everything they can to deter content moderation beyond narrow categories of porn, dirty words, illegal content, promoting terrorism, self harm, and harassment (narrowly defined). Most Democrats want exactly the opposite: to coerce tech companies into moderating misinformation as a condition of maintaining their 230 protections. There simply is no common ground here.So unless Democrats win enough Senate seats to abolish the filibuster, the debate over content moderation won’t be resolved anytime soon. Instead, Democrats will focus on liability for third-party content that isn’t moderated — which is what nearly all 230 cases are actually about. The EARN IT Act already has bipartisan support, as does making 230 protection contingent on removing unlawful content, and requiring websites to prove that their practices are “reasonable.” Each is deeply problematic, but practical details of real-world implementation don’t seem to matter much.Biden has said he wants to “revoke” Section 230 “immediately,” but there’s little reason to expect repeal to happen. Instead, expect him to focus on “hold[ing] social media companies accountable for knowingly platforming falsehoods,” as a Biden spokesman put it after Trump’s Executive Order in May.Here, more than in any other area, an expert commission is the only way out of this debate. The issue is simply too complicated — both legally and technically — for Congress to handle.Net NeutralityIf Trump Wins...Status quo: The FCC will maintain its hands-off approach to broadband regulation and net neutrality legislation will remain stalled in Congress. At most, a Democratic House and Senate might pass legislation purporting to revive the 2015 Open Internet Order, but Trump would veto it — and it’s far from clear that’s even a valid way to legislate. Instead, expect activists to focus on pushing for state-level broadband legislation. The courts are unlikely to allow that so long as the FCC retains broad preemption. But for some activists, the point has always been to keep the fight going forever, not to actually win in court.If Biden Wins…Even a centrist FCC Chair would face overwhelming activist pressure to revive the FCC’s 2015 Open Internet Order. But will they want to be remembered merely for playing yet another round of Title II ping-pong — or for finally convincing Congress to resolve this issue? There’s been a bipartisan consensus on the core of net neutrality since Republican Chairman Michael Powell gave his “Four Freedoms” speech in 2004. Democratic Chairman Genachowski pushed hard for legislation. He resorted to issuing the 2010 Open Order only after Republicans pulled out of legislative talks, calculating that they’d have more leverage after the midterms.Resolving this issue could be the key to broader telecom reforms that Congress has been unable to tackle since passing the 1996 Telecom Act — a law based on markedly pre-digital assumptions about the future. Democrats should be careful not to overplay their hand: the D.C. Circuit decision upholding the FCC’s 2015 Order made clear that the FCC’s rules only applied to companies that held themselves out as offering “unedited” services anyway, meaning that ISPs could opt-out of Title II if they really wanted to.Tech & AntitrustIf Trump Wins...Expect more antitrust lawsuits like the Google suit. But if the Google suit is the strongest case this Administration has, they’re unlikely to win any significant remedies in court. And even if those suits do succeed, they’re unlikely to significantly address Republicans’ real concerns about “bias.” So don’t expect Republicans’ current “litigate but don’t legislate” approach to last long. Trump is famous for turning on a dime, and Congressional Republicans will face enormous pressure, especially if Democrats take the Senate, to “strengthen” the antitrust laws. Ken Buck’s minority report indicates where populist Republicans might find common ground with anti-corporate populists on the left.If Biden Wins…There’s enormous political pressure from all quarters to “do something” about antitrust. But don’t assume that legislation will be anywhere near as radical as what Congressional Democrats have proposed. Even Rep. David Cicilline’s much-hyped proposal to turn antitrust law on its head is careful to note that it represents only the views of his staff — not the Committee or its members.It’s one thing for Democrats to talk about flipping the burden of proof in merger cases, but giving the government such leverage would have, for example, made it easy for Trump to force AT&T to spin off CNN — or to make editorial changes as implicit conditions of the Time Warner deal. Democrats pushing such ideas simply haven’t thought through the implications of what they’re proposing. Do they really want to make it easier for Republicans to use the antitrust laws as political weapons against the media, both new and old? A more considered, serious approach from the administration would focus on increased funding, more aggressive enforcement, and carefully targeted statutory changes.Federal Privacy LegislationIf Trump Wins…Status quo: Absent a court decision striking down state privacy laws on dormant commerce grounds — hard cases to win, which usually take years — Republicans will continue to insist on national privacy legislation to prevent every state from layering its own set of data rules on top of California’s. But Democrats have little political incentive to negotiate for any legislation that would displace California’s approach, which they claim as a win despite its glaring amateurishness and many practical pitfalls.If Biden Wins…If Democrats also take the Senate, they’ll have no excuse for not finally passing the comprehensive baseline privacy legislation they’ve talked about for years. Preemption should be an easier “give” for Democrats if they have more leverage in writing the legislation and are assured of handling at least the crucial first 3-4 years of enforcing the new law. Passing a federal law, even if it overlaps significantly with California’s, would allow the Administration to take credit for addressing the top complaint about “Big Tech”: not bigness per se, but a perceived lack of control over data collection.Treatment of Chinese Tech CompaniesIf Trump Wins… Status quo: The White House will raise legitimate concerns about Chinese tech companies giving the Chinese government access to private user data and influence over content moderation decisions. They’ll hype “deals” like TikTok’s partnership with Oracle, but Chinese entities will retain control. The only real winners will be American companies favored by the White House. It’ll be cronyist mercantilism veiled in talk of privacy and free speech. Republicans will increasingly find themselves in a quandary: the greatest beneficiaries of their push to hamstring American “Big Tech” companies will be Chinese companies that have achieved the scale necessary to expand into the U.S. market, as TikTok has done.If Biden Wins…Republicans will hammer the Biden Administration for any perceived weakness on China — especially when it comes to tech. Expect the White House to try to depoliticize CFIUS and treat the review process as more of a law enforcement exercise than policymaking driven by the White House. If Democrats are smart, they’ll try to insulate themselves from inevitable Republican attacks by drawing clearer statutory lines about foreign ownership of tech companies serving the U.S. market. The real test will come the first time CFIUS declines to take action against a Chinese company: will the White House intervene under political pressure?And If the Election is Contested...?If there’s no clear, quick election result, the stage will be set for the “mother of all battles” over online speech. If Trump and his supporters claim victory and insist that ballots that “changed the result on election night” must be fraudulent, “Big Tech” companies will apply warning labels to such content — and block paid ads making the same claims. Republicans will go absolutely ballistic. They’ll throw every legal theory they can against the wall. Don’t expect any of it to stick: website operators have a clear First Amendment right to reject, or put disclaimers around, third party content — just as newspapers do with letters to the editor. But that won’t stop Republicans from filing multiple lawsuits and complaints with federal regulators, including the Federal Election Commission. Expect the Trump administration to get creative in finding ways to “stick it” to tech companies in interregnum.As ugly and politicized as tech policy is today, if tech policy becomes wrapped up in a “Florida recount but worse” fight, we’ll quickly come to look back at today’s tech policy battles as mild by comparison.
Early last year, the Fifth Circuit Court of Appeals (which has more than its fair share of inexplicable decisions) released an inexplicable decision. The appeal arose from a lower court's dismissal of an injured cop's lawsuit against multiple parties over injuries he sustained when a protester threw a chunk of concrete at him.The pseudonymous cop sued a number of entities, including "Black Lives Matter," a Twitter hashtag, and activist DeRay Mckesson. His claims against the social movement and the social media sorting mechanic didn't survive. But the Fifth Circuit Court felt it was plausible -- under Louisiana state law -- that Mckesson was somehow responsible for the injuries sustained by the cop.According to the court, Mckesson should have known that leading protesters onto a highway would "provoke" a "confrontation" with law enforcement. Being aware of this potential provocation was enough for the court to revive Officer John Doe's idiotic attempt to hold Mckesson personally responsible for an act of violence committed by another person.That ridiculousness has now been undone by the Supreme Court. The nation's top court rolls back [PDF] the Fifth Circuit's inexplicable resurrection of the cop's misguided claims and sends it back down the judicial food chain. Allowing this decision to stand would do damage to the First Amendment and invite similarly misguided lawsuits from plaintiffs like this one -- people seeking to bleed the biggest litigation target, rather than the person who perpetrated the injurious act.The Supreme Court says the Fifth Circuit was right to recognize the issue, but was less correct in its handling of it.
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For a year now we've been writing about the disastrous impact of California's AB5 law that was designed to "protect" gig workers by basically outlawing nearly all freelance work in California, and requiring much of it to be only done by salaried employees. It has impacted many industries very hard, including freelance journalists. The author of the bill, Assemblywoman Lorena Gonzalez has been insultingly dismissive of those who have highlighted how much harm her bill has done.Though, as the complaints got louder and louder, she finally admitted that she might be open to some changes of parts of the bill. But, that's not what actually happened. Instead of fixing the larger bill, she just agreed to duct tape on a bunch of exemptions -- including for many of the industries that were most vocal about how much damage her bill was doing. This included freelance writers, photojournalists, freelance editors, copy editors, youth sports coaches, landscape architects, cartographers, and musicians among many others.Now, normally, if you have to go back to the drawing board to add a dozen and a half exemptions to the bill you just passed, it would be a sign that perhaps the bill itself is a problem. Indeed, lawyers are already saying that this "may be just the start of amendments to AB5 that will carve out other industries and occupations." And even the journalist exemptions are not complete and still have many journalists worried that they won't be able to freelance under the law.But what's really disgusting is that Lorena Gonzalez took to Twitter this weekend to celebrate the fact that the RIAA sent her a gold record as a "thank you" for carving musicians out of AB5. Of course, that's not the way she put it in her tweet about it:She says:
Space X has begun sending invites out to folks interested in participating in the company's Starlink low-orbit satellite broadband service. Users took to Reddit to note that Starlink is promising users speeds of 50-100 Mbps downstream for about $100 per month, plus $500 down for a connection terminal and antenna. The company is also promising significantly lower latency (20 to 40ms) than what you'll typically see with satellite broadband (often 200ms or higher). The best part, no monthly usage caps and overage fees (so far):
They're not screwing around with police reform in Virginia. Plenty of states and cities are reevaluating the way law enforcement money is spent and how agencies operate following nationwide protests against police brutality, but few of these discussions have resulted in solid changes. There's been more discussion than action. Virginia's governor is all about action, it would appear. As NBC12 reports, a long list of reforms has been signed into law by Governor Ralph Northam.
Several weeks ago, Microsoft bought Zenimax Media, the parent organization of Bethesda Softworks for over $7 billion. Bethesda is a celebrated studio best known for its Fallout and Elder Scrolls titles. Both series have long histories of being published across a wide range of gaming platforms, including the PC, PlayStation, and Xbox markets. Almost immediately after the deal, however, many gamers openly worried that Microsoft would warehouse the properties to either the PC or Xbox markets exclusively.The worry didn't cease when Kotaku interviewed Xbox chief Phil Spencer about the implications of the deal and Spencer's remarks were decidedly noncommittal.
Three years ago, Google jumped into the home security market. After a troubled development cycle it launched Nest Secure, a $500 home security system that competes with the likes of Abode and Simplisafe. But things didn't go quite as planned. Last year, the company took some deserved heat for failing to mention the system's "Nest Guard" keypad control base included a hidden microphone, creating ample paranoia among owners. Google also took heat for failing to really deploy updates at the same pace that other Nest products had seen, and for making changes that locked you into the Google ecosystem at the cost of interoperability.Last week the company quietly told Android Police it would be killing the Nest Secure completely. The company didn't really explain why, or what happens next, only to state that the product will still work. For now. Of course when Ars Technica pressed the company as to how long existing users can expect their expensive security service to get support, the company apparently couldn't be bothered to answer:
Remember Trump's ridiculous executive order to ban TikTok if it wasn't sold to an American company? Then there was a grifty non-deal in which Oracle agreed to host TikTok's new American subsidiary, though nothing about that deal appears to have been finalized, and the executive order was still somewhat in place. The first stage of the ban on the app was blocked by a judge in a lawsuit from TikTok itself. But that ruling did not (yet) block the second stage of the executive order which was set to go into effect this month.So some good news: that too has been blocked thanks to a lawsuit from three TikTok influencers: Douglas Marland, Cosette Rinab, and Alec Chambers. The three of them filed their lawsuit in September, right after the details of the executive order came out. I don't know much about these influencers, but I will note they had some high-powered, big time lawyers working the case for them (including the firm the judge in this very case worked at prior to being put on the bench...).The lawsuit noted that the three influencers were a comedian, a fashion creator and a musician "each of whom has developed a significant following by creating and posting content on TikTok." They argued that the executive order violated their 1st Amendment rights, creating prior restraint of their speech. As they correctly note, even on the flimsy "national security" basis that Trump, Wilbur Ross, and Mike Pompeo made in pushing through this executive order, you can't just ban speech broadly like that.
Let’s stop ignoring the obvious: broadband internet access service is a public utility and needs to be regulated as one.American consumers agree. A Consumer Reports survey from earlier this year found that four out of five (80 percent) consumers believe broadband service is as important as water and electricity. Indeed, broadband has become the essential service in the daily lives of 21st century consumers. The COVID-19 crisis has thrown this fact into sharp relief as many of us depend on an internet connection to work from home, attend virtual classrooms, receive medical care via telehealth services, stay connected with friends and family, and for entertainment.The pandemic has proven just how critical a reliable, fast and affordable internet connection is today. However, unlike water, electricity, or even phone service, broadband internet service is neither universally available, nor is it regulated to guarantee access, ensure fair prices, or promote competition in the marketplace.As a result, there exists a deeply troubling “digital divide” between those Americans who have and can afford internet service, and those who cannot. The divide is two-pronged, as both access and affordability determine whether consumers are able to get online. Access is meant as a home wired for broadband internet, and affordability is determined by whether a consumer can pay the price for service demanded by the internet service provider (ISP).Unfortunately, those in charge at the Federal Communications Commission have proven incapable of bridging this divide. In fact, the decision a few years ago to reclassify broadband as an “information service” instead of what it obviously is, a “telecommunications service” has practically removed the Commission from any meaningful oversight role over ISPs. The next Congress needs to rectify this wrong and enact a new framework to govern broadband service, ensuring that it is both accessible and affordable to consumers.To be sure, the FCC could restore its regulatory authority over broadband by reclassifying it as a telecommunication service. The 2005 Supreme Court decision in Brand X established that the Commission has the flexibility to make such classification decisions—decisions with real consequences for consumers that extend beyond esoteric legal exercises.The very question of whether broadband is an information service versus a telecommunications service has been at the heart of the current net neutrality struggle for almost two decades. At the risk of gross oversimplification, an information service classification roughly translates into fewer regulations. Conversely, a telecommunications service designation avails the FCC of a stronger set of tools rooted in common carrier authority, with powers to better foster competition, ensure non-discriminatory access, and put a cap on rates that are too expensive for consumers.The FCC correctly classified broadband as a telecommunications service in 2015 as part of its Open Internet Order, enabling the issuance of common sense net neutrality rules. This action was approved by a federal court in the 2016 USTelecom ruling. Unfortunately, all that was discarded when the current Commission reversed course a year later and decided to reclassify broadband once again, this time as an information service, as a fundamental part of its repeal of the 2015 net neutrality rules. Though obvious to us that broadband is a telecommunications service, the classification debate—read the lengthy justification for declassifying broadband in the Restoring Internet Freedom Order—has descended into a medieval exercise to determine how many angels can dance on the head of a pin.The back-and-forth war over net neutrality fought time and time again at the FCC must end. Make no mistake, ensuring an open internet is an important policy struggle, but the FCC’s failures reveal a deeper problem: how can we best regulate internet service supplied by ISPs, which is NOT to be conflated with regulating the internet, as is so often the lament from the anti-net neutrality crowd.The current status quo cannot be allowed to stand and it will not increase more broadband access at an affordable price. Absent much more than flimsy transparency requirements, ISPs are free from any real rules imposed by the FCC or Congress. Moreover, ISPs like Comcast and Charter are mostly insulated from competition—a study published this past summer revealed that these two companies alone maintain a monopoly over 47 million American consumers, and even more (an extra 33 million) if we disregard DSL as a real competitive choice in 2020. Adding to the misery, the rates charged by ISPs are totally inscrutable. Prices vary from neighborhood to neighborhood within the same city, and yet there’s no clear sense how prices are determined or if they’re consistent.Though FCC Chairman Ajit Pai and others ridiculed the 2015 Open Internet Order as “utility-style” regulation, consumers now recognize broadband service as exactly that: a utility. It should be governed as such to benefit consumers. Not ISPs.A new Congress will be sworn in next January. It can settle this debate once and for all. We can no longer endure the seesawing classification debate at the FCC, the winner of which depends upon a Presidential election every four years. Therefore, legislation must be passed to grant the FCC new, clear authority to govern broadband service as a telecommunications service, an essential utility.Emboldened with the power to regulate broadband like a utility, the Commission can ensure affordability by applying price caps, especially where there is not effective competition and prices are too high. Alternatively, the FCC could spur competition by requiring ISPs to unbundle their networks to allow new entrants to offer service. Utility-style regulation could also be used to require deployment to underserved areas and to standardize service offerings to make sure consumers can afford a package to meet their everyday needs of remote work and online learning. Finally, as demonstrated by the 2015 Open Internet Order, utility regulation permits the FCC to require non-discriminatory access to ISP networks, the foundation for re-establishing strong net neutrality rules.Additionally, Congress must fund a massive internet infrastructure project to get broadband into the home of every American family. Estimates that 42 million Americans lack access to fixed broadband service is unacceptable in 2020. Kids trying to attend class online shouldn’t have to drive to a parking lot to use free WiFi offered by libraries, sports arenas, or fast food restaurants. And though rural areas typically suffer a lack of broadband access, it is also an urban problem. The Gotham Gazette recently reported that: “According to city data, 40% of households in the city -- home to roughly 3.4 million people -- don’t have both home and mobile internet connections, and 18% have neither.”Congress should further consider measures to make broadband affordable for all Americans. A CR survey from earlier this year found that consumers paid an average of $66 per month for internet service. Coupled with other costs and the hardships posed by the pandemic, this is simply too expensive for many families. Borrowing from a very old cable law, Congress could require ISPs to offer a “basic service” package for all consumers that provides affordable, reliable broadband at speeds that are required for today’s bandwidth-heavy applications. Comcast is already doing this in some fashion (originally as a condition to its acquisition of NBC Universal in 2011), so the idea is not exactly a stretch.These are but a few ideas to increase broadband access and affordability. This isn’t rocket science and it should not be a partisan issue. The internet has proven obvious and essential for Americans to succeed in the 21st century economy.With Congressional funding and a new grant of authority and purpose at the FCC to treat broadband like the essential utility service that it is, the government can—and must—connect many more Americans to the internet and to each other.Jonathan Schwantes is a senior policy counsel in Consumers Reports’ Washington DC office where he focuses on telecommunications issues affecting consumers in the broadband, television, media, and wireless markets.
Let’s stop ignoring the obvious: broadband internet access service is a public utility and needs to be regulated as one.American consumers agree. A Consumer Reports survey from earlier this year found that four out of five (80 percent) consumers believe broadband service is as important as water and electricity. Indeed, broadband has become the essential service in the daily lives of 21st century consumers. The COVID-19 crisis has thrown this fact into sharp relief as many of us depend on an internet connection to work from home, attend virtual classrooms, receive medical care via telehealth services, stay connected with friends and family, and for entertainment.The pandemic has proven just how critical a reliable, fast and affordable internet connection is today. However, unlike water, electricity, or even phone service, broadband internet service is neither universally available, nor is it regulated to guarantee access, ensure fair prices, or promote competition in the marketplace.As a result, there exists a deeply troubling “digital divide” between those Americans who have and can afford internet service, and those who cannot. The divide is two-pronged, as both access and affordability determine whether consumers are able to get online. Access is meant as a home wired for broadband internet, and affordability is determined by whether a consumer can pay the price for service demanded by the internet service provider (ISP).Unfortunately, those in charge at the Federal Communications Commission have proven incapable of bridging this divide. In fact, the decision a few years ago to reclassify broadband as an “information service” instead of what it obviously is, a “telecommunications service” has practically removed the Commission from any meaningful oversight role over ISPs. The next Congress needs to rectify this wrong and enact a new framework to govern broadband service, ensuring that it is both accessible and affordable to consumers.To be sure, the FCC could restore its regulatory authority over broadband by reclassifying it as a telecommunication service. The 2005 Supreme Court decision in Brand X established that the Commission has the flexibility to make such classification decisions—decisions with real consequences for consumers that extend beyond esoteric legal exercises.The very question of whether broadband is an information service versus a telecommunications service has been at the heart of the current net neutrality struggle for almost two decades. At the risk of gross oversimplification, an information service classification roughly translates into fewer regulations. Conversely, a telecommunications service designation avails the FCC of a stronger set of tools rooted in common carrier authority, with powers to better foster competition, ensure non-discriminatory access, and put a cap on rates that are too expensive for consumers.The FCC correctly classified broadband as a telecommunications service in 2015 as part of its Open Internet Order, enabling the issuance of common sense net neutrality rules. This action was approved by a federal court in the 2016 USTelecom ruling. Unfortunately, all that was discarded when the current Commission reversed course a year later and decided to reclassify broadband once again, this time as an information service, as a fundamental part of its repeal of the 2015 net neutrality rules. Though obvious to us that broadband is a telecommunications service, the classification debate—read the lengthy justification for declassifying broadband in the Restoring Internet Freedom Order—has descended into a medieval exercise to determine how many angels can dance on the head of a pin.The back-and-forth war over net neutrality fought time and time again at the FCC must end. Make no mistake, ensuring an open internet is an important policy struggle, but the FCC’s failures reveal a deeper problem: how can we best regulate internet service supplied by ISPs, which is NOT to be conflated with regulating the internet, as is so often the lament from the anti-net neutrality crowd.The current status quo cannot be allowed to stand and it will not increase more broadband access at an affordable price. Absent much more than flimsy transparency requirements, ISPs are free from any real rules imposed by the FCC or Congress. Moreover, ISPs like Comcast and Charter are mostly insulated from competition—a study published this past summer revealed that these two companies alone maintain a monopoly over 47 million American consumers, and even more (an extra 33 million) if we disregard DSL as a real competitive choice in 2020. Adding to the misery, the rates charged by ISPs are totally inscrutable. Prices vary from neighborhood to neighborhood within the same city, and yet there’s no clear sense how prices are determined or if they’re consistent.Though FCC Chairman Ajit Pai and others ridiculed the 2015 Open Internet Order as “utility-style” regulation, consumers now recognize broadband service as exactly that: a utility. It should be governed as such to benefit consumers. Not ISPs.A new Congress will be sworn in next January. It can settle this debate once and for all. We can no longer endure the seesawing classification debate at the FCC, the winner of which depends upon a Presidential election every four years. Therefore, legislation must be passed to grant the FCC new, clear authority to govern broadband service as a telecommunications service, an essential utility.Emboldened with the power to regulate broadband like a utility, the Commission can ensure affordability by applying price caps, especially where there is not effective competition and prices are too high. Alternatively, the FCC could spur competition by requiring ISPs to unbundle their networks to allow new entrants to offer service. Utility-style regulation could also be used to require deployment to underserved areas and to standardize service offerings to make sure consumers can afford a package to meet their everyday needs of remote work and online learning. Finally, as demonstrated by the 2015 Open Internet Order, utility regulation permits the FCC to require non-discriminatory access to ISP networks, the foundation for re-establishing strong net neutrality rules.Additionally, Congress must fund a massive internet infrastructure project to get broadband into the home of every American family. Estimates that 42 million Americans lack access to fixed broadband service is unacceptable in 2020. Kids trying to attend class online shouldn’t have to drive to a parking lot to use free WiFi offered by libraries, sports arenas, or fast food restaurants. And though rural areas typically suffer a lack of broadband access, it is also an urban problem. The Gotham Gazette recently reported that: “According to city data, 40% of households in the city -- home to roughly 3.4 million people -- don’t have both home and mobile internet connections, and 18% have neither.”Congress should further consider measures to make broadband affordable for all Americans. A CR survey from earlier this year found that consumers paid an average of $66 per month for internet service. Coupled with other costs and the hardships posed by the pandemic, this is simply too expensive for many families. Borrowing from a very old cable law, Congress could require ISPs to offer a “basic service” package for all consumers that provides affordable, reliable broadband at speeds that are required for today’s bandwidth-heavy applications. Comcast is already doing this in some fashion (originally as a condition to its acquisition of NBC Universal in 2011), so the idea is not exactly a stretch.These are but a few ideas to increase broadband access and affordability. This isn’t rocket science and it should not be a partisan issue. The internet has proven obvious and essential for Americans to succeed in the 21st century economy.With Congressional funding and a new grant of authority and purpose at the FCC to treat broadband like the essential utility service that it is, the government can—and must—connect many more Americans to the internet and to each other.Jonathan Schwantes is a senior policy counsel in Consumers Reports’ Washington DC office where he focuses on telecommunications issues affecting consumers in the broadband, television, media, and wireless markets.
It hasn't garnered that much public attention, but a couple weeks ago Shiva Ayyadurai decided to sue Massachusetts' Secretary William Galvin, claiming that efforts to have some of Shiva's tweets removed from Twitter violated the 1st Amendment. It may surprise many people to hear this, but I think Shiva has a point. And it actually raises some interesting (and somewhat new) 1st Amendment questions regarding social media, election disinformation, and the role of election officials in fighting disinformation online.Now, as background for this, many people reading this likely know that I spent over two years engaged in a legal fight with Shiva after he sued us over a series of articles we had written highlighting how his claim to have invented email is not supported by the evidence. The case was eventually settled with no money changing hands and with all of our stories remaining up. And we have since presented even more evidence that Shiva Ayyadurai did not invent email. You might think that this would make me immediately disagree with him in any legal fight, but as I did in writing my original pieces about him and as I do now, I'm looking at the actual details, not whether or not I like or agree with any particular individual.Over the last few years, Shiva has really embraced a Trumpian position in trying to build up a political base. He's been very supportive of the President, and in recent months has been an outspoken critic of both vaccines and Dr. Anthony Fauci. He's built up quite a large social media following and regularly espouses idea that I consider to be silly, misleading or unsupported by any evidence -- which seems somewhat par for the course, given his historical assertions. He's run for Senator in Massachusetts twice now. In 2018 he first sought the Republican nomination for the Senate to run against Elizabeth Warren, and then later switched to running as an Independent. After losing that race, he almost immediately declared that he would run again in 2020. He ran in the Republican primary, which he lost to Kevin O'Connor 158,590 votes to 104,782.Perhaps not surprisingly, he was not happy about this result, and started making a bunch of wild, unsupported allegations of election fraud:He then spent weeks trying to drum up a write-in campaign, while repeatedly using social media to allege election fraud. In an effort to show this, he filed some public records requests with Massachusetts, including (among other things) asking for scanned images of every ballot. In response, he was told that there were no responsive records because the machines that scan the ballots do not make images. In fact, the certification process flat out prohibits the machines from capturing ballot images. Furthermore, many of the machines don't even have the ability to capture images even if they could under Massachusetts laws.This was the email that was sent to him in response to the request:
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Everyone wants to do something about Section 230. It’s baffling how seldom we talk about what happens next. What if Section 230 is repealed tomorrow? Must Twitter cease fact-checking the President? Must Google display all search results in chronological order? Perhaps PragerU would finally have a tenable claim against YouTube; and Jason Fyk might one day return to showering the Facebook masses with his prized collection of pissing videos.Suffice to say, that’s not how any of this works.Contrary to what seems to be popular belief, Section 230 isn’t what’s stopping the government from pulling the plug on Twitter for taking down NY Post tweets or exposing bloviating, lying, elected officials. Indeed, without Section 230, plaintiffs with a big tech axe to grind still have a significant hurdle to overcome: The First Amendment.As private entities, websites have always enjoyed First Amendment—freedom of speech—protections for the content they choose (and choose not) to carry. What many erroneously (and ironically) declare as “censorship” is really no different from the editorial discretion enjoyed by newspapers, broadcasters, and your local bookstore. When it comes to the online world, we simply call it content moderation. The decision to fact-check, remove, reinstate, or simply leave content up, is wholly within the First Amendment’s purview. On the flip side, as private, non-government actors, websites do not owe their users the same First Amendment protection for their content.Or, as TechFreedom’s brilliant Ashkhen Kazaryan wisely puts it, the First Amendment protects Twitter from Trump, but not Trump from Twitter.What then is Section 230’s use if the First Amendment already stands in the way? Put simply, Section 230 says websites are not liable for third-party content. In practice, Section 230 merely serves as a free speech fast-lane. Under Section 230, websites can reach the same inevitable conclusions they would reach under the First Amendment, only faster and cheaper. Importantly, Section 230 grants websites and users peace of mind knowing that plaintiffs are less likely to sue them for exercising their editorial discretion—and even if they do—websites and users are almost always guaranteed a fast, cheap, and painless win. That peace of mind is especially crucial for market entrants posed to unseat the big tech incumbents.With that, it seems that Americans haven’t fallen out of love with Section 230, rather, alarmingly, they’ve fallen out of love with the First Amendment. In case you’re wondering if you too have fallen out of love with the freedom of speech, consider the following:If you're upset that Twitter and Facebook keep removing content that favors your political viewpoints,Your problem is with the First Amendment, not Section 230.If you're upset that your favorite social media site won't take down content that offends you,Your problem is with the First Amendment, not Section 230.If you're mad at search engines for indexing websites you don't agree with,Your problem is with the First Amendment, not Section 230.If you're mad at a website for removing your posts - even when it seems unreasonableYour problem is with the First Amendment, not Section 230.If you don't like the way a website aggregates content on your feed or in your search results,Your problem is with the First Amendment, not Section 230.If you wish websites had to carry and remove only specific pre-approved types of contentYour problem is with the First Amendment, not Section 230.If you wish social media services had to be politically neutral,Your problem is with the First Amendment, not Section 230.If someone wrote a negative online review about you or your business,Your problem is with the First Amendment, not Section 230.If you hate pornography,Your problem is with the First Amendment, not Section 230.If you hate Trump’s TweetsYour problem is with the First Amendment, not Section 230.If you hate fact-checks,Your problem is with the First Amendment, not Section 230.If you love fact-checks and wish Facebook had to do more of them,Your problem is with the First Amendment, not Section 230.And at the end of the day, If you hate editorial discretion and free speech,You probably just hate the First Amendment... not Section 230.
If anyone's to blame for this latest Erdogan related debacle, it's the thin-skinned "leader" of Turkey, R.T. "Gollum" Erdogan. In fact, I'd be hard pressed to find anyone else to blame if the Dutch government hadn't been an enabler of this bad behavior.Back in 2018, the Dutch government, inexplicably, decided to prosecute one of its own citizens for "insulting" a world leader located in an entirely different country. For whatever reason, the Dutch government has yet to wipe its "insulting a foreign leader" law from its books and that's the weapon Erdogan wielded to engage in extraterritorial protection of his easily bruised skin.A law may be on the books, but there's nothing compelling a country to enforce it, especially when the request comes from the Turkish consulate on behalf of an insulted foreign leader who, as the word "foreign" specifies, resides in another country altogether.Having set this stupid precedent, the Dutch government has to take some of the blame for recent developments, which involve President Erdogan targeting a member of the Dutch government over some online besmirchment.
This week, our first place winner on the insightful side is an anonymous response to the warnings that Twitch sent out to users who were hit by RIAA takedown demands, which prompted them to "learn about copyright law":
Five Years AgoThis week in 2015, the fight over the CISA cybersecurity bill was on, but it looked like Facebook was secretly on the wrong side of this somewhat-disguised surveillance bill (a true purpose that was occasionally admitted if you looked in the right places). But none of this stopped the Senate from rejecting all the amendments that would have protected privacy and passing CISA with a 74-21 vote. Elsewhere, the EU was working on net neutrality rules that were full of loopholes and other problems. Meanwhile, the DOJ was saying Apple should decrypt customers' phones because the company still owns their copies of iOS, James Comey was blaming violent crime on citizens with cameras, and the Library of Congress released new DMCA anti-circumvention exemptions that were a complete mess.Ten Years AgoFive years earlier in 2010, in the same week, there was a prime example of a DMCA exemption mess when we noted that jailbreaking iPhones was legal, but jailbreaking an Xbox could land you in jail for three years. The Lenz v. Universal case was moving forward as Universal argued that the dancing baby video was not obvious fair use, a judge ordered Limewire to shut down entirely, and Myriad Genetics officially appealed the ruling that invalidated gene patents. The US was basically saying it would just ignore anything in ACTA it didn't like, while a group of law professors was urging Obama to drop support for the agreement and we were looking at how it could create insanely broad new criminal copyright liabilities. And we had an early mention of the brewing controversy around a little company you might have heard of, at the time still known as UberCab.Fifteen Years AgoThis week in 2005, some prominent technology commentators were still missing the point of the rise of amateur content online, while the online world of self-published movies was set to take off and even television networks were, ever so slightly, starting to grasp the need for change. The mobile web was still being hampered by attempts to section it off and pre-decide how it would work, while mobile email was beginning to move beyond the world of BlackBerry (and BlackBerry seemed to have suffered a bit of a glitch in the UK that got the devices temporarily banned by the BBC). MP3 player makers who weren't Apple were complaining about the Apple-induced shortage of flash memory, and Google abandoned its attempts to appease authors and publishers and went back to scanning books after a temporary pause.
We've discussed Billy Mitchell a couple of times here at Techdirt, both times due to his overtly litigious nature, rather than his apparent video game playing prowess. See, Mitchell is rather well known primarily as the record holder for video game scores, including briefly holding the Guinness World Record for a Donkey Kong high score, until he was stripped of it. See, Twin Galaxies, an official tracker of such video game records, determined based on video evidence that Mitchell wasn't playing an official version of the arcade cabinet of the game. Upon being stripped of his records, Mitchell sued for... defamation. Oh, and he also sued the Cartoon Network over a very clear parody depiction in part inspired by his gregarious personage.But back to the defamation suit, which Mitchell filed against Twin Galaxies. He recently got the court allow him to proceed to trial after Twin Galaxies brought an anti-SLAPP suit to the court.
Summary: Wikipedia is well known as an online encyclopedia that anyone can edit. This has enabled a massive corpus of knowledge to be created, that has achieved high marks for accuracy, while also recognizing that at any one moment some content may not be accurate, as anyone may have entered in recent changes. Indeed, one of the key struggles that Wikipedia has dealt with over the years is with so-called “vandals” who change a page not to improve the quality of an entry, but to deliberately decrease the quality.In late 2015, the Wikimedia Foundation, which runs Wikipedia, announced an artificial intelligence tool, called ORES (Objective Revision Evaluation Service) which they hoped might be useful to effectively pre-score edits for the various volunteer editors so they could catch vandalism quicker.
In the week leading up to a potentially extremely consequential election, Congress is once again setting its sights on its favorite whipping boy, Section 230 of the Communications Decency Act.Section 230 clarifies that users are responsible for the content they post online, not the websites that host it. Yet, this simple law was the subject of a hearing which brought the CEO’s of Twitter, Google and Facebook to the hill to be questioned over the law. These companies have been blamed for everything from increasing hate speech online, promoting election disinformation, and censoring conservative speech.Seemingly sensing the winds of change are blowing against them, some of the companies brought to the hill have acquiesced that Section 230 will be reformed and will support some changes to the law. What exact changes to the law they will support remains unclear, but what does have clarity is that this tactic is a monumental mistake.The problem is supporting the reform of Section 230, or even changing the law, will do nothing to get Congress off their back, as any change to the law will fail to address the concerns of those demanding reform. If anything, changing Section 230 will only exacerbate those problems, leading to further scrutiny and calls for reform.Examine the standard Democratic and Republican complaints. Democrats are concerned that there is far too much hate speech, disinformation, and fake news allowed on various platforms. They want the websites to proactively remove more content they believe is poisoning the civil discourse.Republicans, meanwhile, are upset that websites are removing too much content. Twitter blocked the posting of the Hunter Biden laptop story for days, leading to claims of election interference. Similarly, posts from the satirical Babylon Bee have also been subject to removal. These actions place no doubt in the minds of many on the right that big tech is out to censor them.Listening to these complaints, it seems Section 230 is the cause of both too much and not enough content being removed? How can this possibly be?One thing is certain--the problem is not Section 230. The problem lies with the fact that platforms aren’t conforming to one side or the other’s content moderation preferences. But rather than admitting that, both sides are using Section 230 as a pretext to haul the companies before Congress and question them on moderation decisions.It’s likely that our political leaders already know this. If, by chance, they were able to agree and Section 230 disappeared tomorrow, websites would be left with two choices. They can moderate at an incredibly high rate to attempt to avoid liability, thus angering Republicans. Or, they can choose to not moderate at all, leaving any conspiracy theory, offensive speech or disinformation up, which would certainly anger Democrats.Any other proposal that attempts to cut the baby in half will similarly fail to leave both sides happy, and we will be stuck right back where we started. Giving in to these political demands is a mistake. The Congressional approval rating remains dramatically low, while technology companies are more popular than ever in wake of COVID-19. The general public does not care about this issue, and reforms will not fix the problems of those that have a bone to pick with certain tech companies. Any changes to Section 230 will not only fail to get Congress off their back, but they also threaten the very internet ecosystem that has made them rich and enriched the lives of people across the globe.Congress should leave Section 230 alone, and tech companies should be prepared to fight back against the disinformation spouted about the law.The law is working exactly as intended.Eric Peterson lives in New Orleans where is he the Director of the Pelican Center of Technology and Innovation
Broadband is in a state of disarray in America. This was the case long before COVID-19 brought the world to its knees earlier this year. Roughly a third of Americans have no access to broadband internet, with the majority stating cost as the most important obstacle. Even in highly connected urban areas, such as New York City, a lack of connectivity impacts millions of residents. According to Mayor de Blasio’s Internet Master Plan, 40% of New Yorkers lack access to home or mobile broadband, including roughly 20% who lack access to both.Many of these internet black out zones are in low income and minority communities. As the coronavirus pandemic set in, internet accessibility became more crucial than ever. However, as schools transitioned to online learning, many children were unable to participate – and continue to face the same challenge today, months later. Our community at NYC Mesh is fighting to bring digital equity to all communities of NY, and our solution is simple: provide internet to everyone. As COVID makes our society ever more digital, I believe our solution provides a meaningful model for how grassroots movements can shape the connectivity landscape.At NYC Mesh we are developing strategies to improve internet accessibility, by creating an open Wi-Fi wireless and fiber network in three boroughs – and more to come. Since NYC Mesh was founded in 2014, it has nearly doubled in size every year. However, like many other organizations, COVID took a toll on our ability to expand the network and service members.At the beginning of the year, NYC Mesh had about 500 successful nodes on the network – rooftop antennas connecting residents online and further expanding the reach of our community infrastructure in the city. The network was blanketing lower Manhattan and Brooklyn, with plans to begin connecting residents in Queens. Community meetings were filling rooms and teams of volunteers were at the ready to carry out seven installs a week, update our supporting webpage, participate in hackathons, perform maintenance and keep the network running, or any other of the many tasks involved in bridging community organizing and connectivity.As with the rest of New York, COVID forced NYC Mesh to adapt, and quickly. We did so by acting locally: the weeks before New York’s shelter in place order entered into effect, volunteers attempted to connect immediate neighbors, anyone in walking distance that we could connect. Ultimately, however, COVID forced the organization to limit its work to only emergency maintenance or circumstances when a new member had no other means to get online.Despite these limitations there were other ways we could help. NYC Mesh operates almost entirely on the suggested contributions of its members. We don’t speak the language of “service cutoffs,” billing, fees, or other creations of for-profit ISPs. When members of our community lost a job or simply had to prioritize other expenses in their life, they could rest assured that they wouldn’t lose their connection online. Of course, as with groups across the nation, our monthly community meetings transitioned online; PPE became a requirement for all in-person site visits and installations; and we added digital training videos and maintained an extensive online doc to help educate our new members.We started taking in requests for new installations again in June and the number of install requests have once again reached about seven a week. While some of our regular volunteers have had to step back as a result of the COVID shutdown, new volunteers have stepped forward, who have brought with them amazing contributions to help continue the expansion of the Mesh. While COVID may have slowed down NYC Mesh’s operations, we still continue to pursue our goal of bringing digital equity to all New Yorkers.Digital learning was an integral part of education long before the coronavirus and its importance is only increasing. As the need for broadband access rises, the gap in internet access has become more evident, and the consequences more severe. Coronavirus provided the perfect example of how the lack of broadband access can put many, especially children at risk. Children, especially children of color, are receiving less days of instructed learning than their more privileged peers. Prior to COVID, a child could go to an after-school program or library to get online. Now, most of these facilities are closed, limiting the options of those without internet at home to receive an education.NYC Mesh is here to organize, empower, and connect, which is why we’re partnering with the New York City Housing Authority (NYCHA) to expand the mesh network into public housing and enable free, fair, and community-based internet access to residents. The people of these communities face many obstacles, a lack of broadband access being one of the most severe yet overlooked. Having access to the internet at home means it will be easier for residents to apply for jobs online, work remotely, and access safety net benefits. Most importantly, it allows children to receive a full education during this pandemic. With this partnership, some of the most vulnerable members of our population will gain access to the internet, bringing us one step closer to digital equity for all New Yorkers.As we face yet another potential wave of COVID, it is clear that digital equity must be the goal in order to ensure that all New Yorkers can be successful. Employment opportunities, safety net access, and education, will increasingly become dependent on having internet access. Without stable broadband access, the gap between rich and poor widens, and the circle of poverty will continue for the next generation of children of color. Thanks to the efforts of NYC Mesh and other community-run and community-first organizations who have stepped up to tackle this challenge like Silicon Harlem or The Point, we are closer to bringing digital equity to the City of New York and ensuring that no child receives a lesser education, because of their parents' inability to pay a monthly internet bill.Terique Boyce is an organizer with NYC Mesh and resident of NYCHA housing. He works towards achieving greater representation of people of color in the tech industry and bridging the digital divide in NYC.
Everyone knows about President Richard Nixon and the Watergate scandal, but you might now know as much about another huge scandal that preceded that one -- involving Nixon meddling, for political purposes, in an antitrust case by his Justice Department against a large "tech" company/conglomerate at the time. The case involved ITT trying to buy up some smaller companies, and the DOJ brought an antitrust case against them. The scandal part was that ITT approached the White House and worked out a deal: ITT would donate $400,000 (roughly $2.5 million today) to the 1972 Republican National Convention, and Nixon would get the DOJ to drop the case. Which he did. As the Nixon tapes eventually revealed, he called up then deputy Attorney General Richard Kleindienst and said:
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For the better part of the last decade, cable and broadcast executives tried their hardest to pretend that their industry wasn't facing a massive tectonic shift. First, they tried to insist that users flocking from expensive bloated cable bundles to streaming or over the air broadcasts didn't actually exist. Then, when it became very clear cord cutting was a major trend, they tried to pretend it was just something irrelevant, poor nobodies did. Then, when evidence made it very clear that wasn't true either, many executives pretended they'd seen this coming all along.They didn't see it coming. In fact they routinely doubled down on all the kinds of behaviors that created the problem in the first place, like mindless rate hikes, bullshit fees, cheaping out on customer service, and fixating on megamergers instead of customer welfare. But after 2019 and 2020 wound up being the bloodiest years on record for cord cutting, they sure as hell see it now.Case in point: industry insiders now expect 25 million U.S. households to cancel their pay-TV service over the next five years. That's on top of the 25 million homes that have already cut the cord since 2012. The hope now is that the trend stabilizes somewhere around the 50 million traditional TV subscriber mark. Granted there's no evidence they'll be right about this either, and either way there are some hard times in store for the sector all the same:
There's something in the air. Call it TDS. Trump Derangement Syndrome. To acolytes of Trump, this means everyone opposed to Trump will find some reason to blame anything on him. But the derangement affects the acolytes more than it affects his opponents.Former free speech warriors have started calling for government interference in private companies' handling of third-party speech. Lawyers that used to defend even seemingly indefensible people from bogus defamation lawsuits are now filing bogus defamation lawsuits of their own. Far too many Trump fans are convinced the First Amendment should override moderation decisions by social media companies. Some of these Trump fans are actually in the legislative business, which means they have the power to harm -- perhaps permanently -- the First Amendment and the immunity given to social media companies that extends to moderation decisions.It's hypocrisy. It's blatant. And it just keeps spreading. Recently, Newsweek allowed Will Chamberlain to publish an op-ed in support of direct government interference in private companies' moderation efforts. That name might not ring a bell, so let's take a look at Will Chamberlain.Chamberlain now works for the "Internet Accountability Project." It describes itself this way:
Earlier this month, it was reported that the "rule of law" Trump administration was (yet again) violating the law. In this particular case, Trump appointee Michael Pack -- the CEO of the US Agency for Global Media -- was breaching a codified "firewall" to target Voice of America reporters he believed were too critical of Trump and his actions.The "firewall" was erected to prevent exactly what Pack was doing. It was supposed to allow VOA reporters to act independently, rather than be subjected to the whims of presidential administrations. Breaching the firewall allowed Pack and the White House to control the narrative by sidelining or targeting journalists who expressed anti-administration sentiments elsewhere. Specifically cited were "retweets" and "likes" of social media posts criticizing Trump, as well as certain VOA pieces that highlighted the negative aspects of administration efforts.Apparently, the problem was the law, not the lawbreaking. As NPR reports, Michael Pack has removed the law that prevented him from meddling in the day-to-day operation of Voice of America. It was done like most unseemly moves by governments are done: late in the day during a very busy news cycle.
Mere days ago, we discussed the bonkers path Twitch chose for itself in dealing with a flood of DMCA takedowns issued by the RIAA. The whole episode screamed of panic. Rather than dealing with DMCA takedowns via the normal method -- taking down the content, providing the content maker with a path for a counternotice, and then putting the content back if no lawsuit was filed -- , Twitch, instead, took the extraordinary action of simply and permanently nuking the videos in question. It then, rather brazenly, informed the content maker it had done so and advised them to "learn about copyright law." In fact, given its actions, there is some question as to whether or not this is all enough to have lost Twitch its safe harbor protections.Regardless, it would be an understatement to suggest that this pissed off the Twitch community. The public backlash was both swift and severe, with content producers openly wondering if it was time to march off to a different platform entirely. Well, the very next day, Twitch began teasing a new offering coming in November and promoted this tease by releasing a sought after emote to all Twitch users.
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