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There is no shortage of critiques for Valve's online PC game store, Steam. That's to be expected, frankly, given how big the platform is. Still, on the ground with individual gamers, one of the most common complaints you hear will be that the sheer volume of games on Steam is somewhat paralyzing for customers deciding where to spend their money. Steam tried to combat this for years with its Steam Curators program, where gamers put their trust in curators to pare down game search results. It never really worked, though, as the program encountered the same issue as the game: the sheer volume of curators.And so nothing really got solved. Except for in China, it seems, where Steam recently launched with a grand total of 53 whole games available to buyers.

Summary: Following on its efforts in tamping down on election-related misinformation, Twitter's latest moderation efforts target misleading posts about COVID and the coronavirus, with a specific focus on vaccine related information.Despite being months into a global pandemic, there has been a lack of clear, consistent communication from all levels of government in the United States, which has given conspiracy theorists and anti-vaccination activists plenty of room to ply their dubious trades. Twitter is hoping to reduce exposure to tweets containing misleading information as the nation continues to deal with multiple COVID outbreaks.Since early in the pandemic, Twitter had been aggressive in moderating misleading content regarding how the virus spreads, unproven remedies and treatments, and other health related info. Its new policy expands on that, mainly to focus on false information and conspiracy theories regarding vaccines.Twitter won't be limiting itself to applying warnings to tweets with dubious content. The platform will force users to delete tweets that don't comply with its expanded code of conduct. Added to restrictions on misinformation about the spread of the disease and its morbidity rates are bans on false claims about immunization safety or COVID's dangers.Decisions for Twitter:

There's been a lot of consternation about online ads, sometimes even for good reason. The problem is that not all of the criticism is sound or well-directed. Worse, the antipathy towards ad tech, regardless of whether it is well-founded or not, is coalescing into yet more unwise, and undeserved, attacks on Section 230 and other expressive discretion the First Amendment protects. If these attacks are ultimately successful none of the problems currently lamented will be solved, but they will create lots of new ones.As always, effectively addressing actual policy challenges first requires a better understanding of what these challenges are. The reality is that there are at least three separate issues that are raised by online ads: those related to ad content itself, those related to audience targeting, and those related to audience tracking. They all require their own policy responses—and, as it happens, none of those policy responses call for doing anything to change Section 230. In fact, to the extent that Section 230 is even relevant, the best policy response will always require keeping it intact.With regard to ad content, Section 230 applies, and should apply, to the platforms that run advertiser-supplied ads for the same reasons it applies, and should apply, to the platforms hosting the other sorts of content created by users. After all, ad content is, in essence, just another form of user generated content (in fact, sometimes it's exactly like other forms of user content). And, as such, the principles behind having Section 230 apply to platforms hosting user-generated content in general also apply – and need to apply – here.For one thing, as with ordinary user-generated content, platforms are not going to be able to police all the ad content that may run on their site. One important benefit of online advertising versus offline is that it enables far more entities to advertise to far larger audiences than they would be able to afford in the offline space. Online ads may therefore sometimes be cheesy, low-budget affairs, but it's ultimately good for the consumer if it's not just large, well-resourced, corporate entities who get to compete for public attention. We should be wary of implementing any policy that might choke off this commercial diversity.Of course, the flip side to making it possible for many more actors to supply many more ads is that the supply of online ads is nearly infinite, and thus the volume is simply too great for platforms to be able to scrutinize all of them (or even most of them). Furthermore, even in cases where platforms might be able to examine an ad, it is still unlikely to have the expertise to review it for all possible legal issues that might arise in every jurisdiction where the ad may appear. Section 230 exists in large part to alleviate these impossible content policing burdens to make it possible for platforms to facilitate the appearance of any content at all.Nevertheless, Section 230 also exists to make it possible for platforms to try to police content anyway, to the extent that they can, by making it clear that they can't be held liable for any of those moderation efforts. And that's important if we want to encourage them to help eliminate ads of poor quality. We want platforms to be able to do the best they can to get rid of dubious ads, and that means we need to make it legally safe for them to try.The more we think they should take these steps, the more we need policy to ensure that it's possible for platforms to respond to this market expectation. And that means we need to hold onto Section 230 because it is what affords them this practical ability.What's more, Section 230 affords platforms all this critical protection regardless of whether they profit from carrying content or not. The statute does not condition its protection on whether a platform facilitates content in exchange for money, nor is there any sort of constitutional obligation for a platform to provide its services on a charitable basis in order to benefit from the editorial discretion the First Amendment grants it. Sure, some platforms do pointedly host user content for free, but every platform needs to have some way of keeping the lights on and servers running. And if the most effective way to keep their services free for some users to post their content is to charge others for theirs, it is an absolutely constitutionally permissible decision for a platform to make.In fact, it may even be good policy to encourage as well, as it keeps services available for users who can't afford to pay for access. Charging some users to facilitate their content doesn't inherently make the platform complicit in the ad content's creation, or otherwise responsible for imbuing it with whatever quality is objectionable. Even if that an advertiser has paid for algorithmic display priority, Section 230 should still apply just as it applies to any other algorithmically driven display decision the platform employs.But on the off-chance that the platform did take an active role in creating that objectionable content, Section 230 has never stood in the way of holding the platform responsible. What Section 230 simply says is that making it possible to post unlawful content is not the same as creating content; for the platform to be liable as an "information content provider," aka a content creator, it had to have done something significantly more to birth its wrongful essence than simply be a vehicle for someone else to express it.It's even true if the platform allows the advertiser to choose its audience. After all, the content has already been created. Audience targeting is something else entirely, but it's also something we should be wary of impinging upon.There may, of course, be situations where advertisers try to target certain types of ads (ex: jobs, housing offers) in harmful ways. And when they do it may be appropriate to sanction the advertiser for what may amount to illegally discriminatory behavior. But not every such targeting choice is wrongful; sometimes choosing narrow audiences based on protected status may even be beneficial. But if we change the law to allow platforms be held equally liable with the advertiser for their wrongful targeting choices, we will take away the ability for platforms to offer audience targeting for any reasons, even good ones, by making it legally unsafe in case the advertiser does it for bad ones.Furthermore, doing so will upend all advertising as we've known it, and in a way that's offensive to the First Amendment. There's a reason that certain things are advertised during prime time, or during sports broadcasts, or on late night tv, just as there's a reason that ads appearing in the New York Times are not necessarily the same ones running in Field & Stream or Ebony magazines. The Internet didn't suddenly make those choices possible; advertisers have always wanted the most bang for their buck, to reach the people most likely to be their ultimate customers as cost effectively as possible. And as a result they have always made choices about where to place their ads based on the demographics those ads likely reach. To now say that it should be illegal to allow advertisers to ever make such choices, simply because they may sometimes make these decisions wrongfully would disrupt decades upon decades of past practice and likely run afoul of the First Amendment, which generally protects the choice of whom to speak to. In fact, it protects it regardless of the medium in question, and there is no principled reason why an online platform should be any less protected than a broadcaster or some sort of printed periodical (especially not the former).Even if it would be better if advertisers weren't so selective—and it's a fair argument to make, and a fair policy to pursue—it's not an outcome we should use the weight of legal liability to try to force. It won't work, and it impinges on important constitutional freedoms we've come to count on. Rather, if there is any affirmative policy response to ad tech that is warranted it is likely with the third constituent part: audience tracking. But even so, any policy response will still need to be a careful one.There is nothing new about marketers wanting to fully understand their audiences; they have always tried to track them as well as the technology of the day would allow. What's new is how much better they now can. And the reality is that some of the tracking ability is intrusive and creepy, especially to the degree it happens without the audience being aware of how much of their behavior is being silently learned by strangers. There is room for policy to at minimum encourage, and potentially even require, such systems to be more transparent in how they learn about their audiences, tell others what they've learned, and give those audiences a chance to say no to much of it.But in considering the right regulatory response there are some important caveats. First, take Section 230 off the table. It has nothing to do with this regulatory problem, apart from enabling platforms that may use ad tech to exist at all. You don't fix ad tech by killing the entire Internet; any regulatory solution is only a solution when it targets the actual problem.Which leads to the next caution, because the regulatory schemes we've seen attempted so far (GDPR, CCPA, Prop. 24) are, even if well-intentioned, clunky, conflicting, and with plenty of overhead that compromises their effectiveness and imposes their own unintended and chilling costs, including on expression itself (and of more expression than just that of advertisers).Still, when people complain about online ads this is frequently the area they are complaining about and it is worth focused attention to solve. But it is tricky; given how easy it is for all online activity to leave digital footprints, as well as the many reasons we might want to allow those footprints to be measured and then those measurements to be used (even potentially for advertising), care is required to make sure we don't foreclose the good uses while aiming to suppress the bad. But for the right law, one that recognizes and reasonably reacts to the complexity of this policy challenge, there is an opportunity for a constructive regulatory response to this piece of the online ad tech puzzle. There is no quick fix – and ripping apart the Internet by doing anything to Section 230 is certainly not any kind of fix at all – but if something must be done about online advertising, this is the something that's worth the thoughtful policy attention to try to get right.

Remember when America spent a year and a half hyperventilating about a Chinese teen dancing app instead of securing American infrastructure from Russian hackers or other threats? Remember when a bunch of GOP officials with a long track record of not caring whatsoever about consumer privacy or internet security exploited xenophobic fears about the app to land political allies Oracle and Walmart a major windfall? Remember when 90% of the press couldn't be bothered to inform readers this was all performative cronyism by an unqualified nitwit? Good times.This morning the Wall Street Journal announced that the much hyped deal to sell ByteDance-owned TikTok to Oracle and Walmart is looking unsurprisingly dead in the wake of previous legal challenges and Trump's election loss. Instead, the government appears poised to do what made sense from the start: focus on the broader problem of lax privacy and dodgy security standards across the board in telecom/adtech/tech, instead of singling out a teen dancing app:

Last week Techdirt wrote about Australia's proposed News Media Bargaining Code. This is much worse than the already awful Article 15 of the EU Copyright Directive (formerly Article 11), which similarly proposes to force Internet companies to pay for the privilege of sending traffic to traditional news sites. A post on Infojustice has a good summary of the ways in which the Australians aim to do more harm to the online world than the Europeans:

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Cops tend to dislike being recorded. They don't care much for their own recording devices. They routinely disable equipment or conveniently "forget" to activate body cameras.And they dislike the recording devices everyone carries with them at all times: cellphones. Cellphone ubiquity means it's almost impossible for cops to prevent an incident or interaction from being recorded. Add these devices to the steadily-increasing deployment of internet-connected security cameras and there's really nowhere to hide anymore.Simply shutting down recordings or arresting citizens for pointing cameras at them is a very risky option. There's tons of case law on the books that says recording public officials is protected First Amendment activity. So, cops are getting creative. Some of the less creative efforts include shining bright flashlights at people holding cameras in hopes of ruining any footage collected. Sometimes officers just stand directly in front of people who are recording to block their view of searches or arrests taking place. Often the excuse is "crowd control," when it's actually just an attempt at narrative control.Now, here's the latest twist: cops have figured out a way to prevent recordings from being streamed or uploaded to social media services or video platforms like YouTube. Believe it or not, it involves a particularly pernicious abuse of intellectual property protections.

Late last year, Verizon announced it would be acquiring Tracfone for around $6.2 billion. As we noted when the deal was first announced, it was yet another example of the "growth for growth's sake" mindset that has long infected US industry, particularly the telecom sector. There are really no real benefits to be gleaned from further consolidation in the space (especially in the wake of a T-Mobile Sprint merger that immediately resulted in layoffs and reduced US wireless competition by around 25%). Yet we really adore pretending otherwise as the government rubber stamps deal after deal.In a letter (pdf) to the FCC, attorneys general from 16 states and the District of Columbia urged the agency to actually, you know, do its job and ask more questions about the deal. TracFone is among the biggest providers of Lifeline, the FCC program that provides services for about 1.7 million low-income subscribers in 43 states. Verizon is a lumbering media and telecom monopoly that views such programs (and the regulators that oversee them) as largely an irritant. Putting the TracFone contributions at risk during an historic economic and health crisis isn't particularly bright.As such, the states are wondering if the FCC might be able to take a few moments to make sure the deal doesn't harm those relying on the program:

While we've covered the Internet of Broken Things for some time, where companies fail to secure the devices they sell which connect to the internet, the entire genre sort of jumped the shark in October of last year. That's when Qiui, a Chinese company, was found to have sold a penis chastity lock that communicates with an API that was wide open and sans any password protection. The end result is that users of a device that locks up their private parts could enjoy those private parts entirely at the pleasure of nefarious third parties. Qiui pushed out a fix to the API... but didn't do so for existing users, only new devices. Why? Well, the company stated that pushing it out to existing devices would again cause them to all lock up, with no override available. Understandably, there wasn't a whole lot of interest in the company's devices at that point.But fear not, target market for penis chastity locks! Qiui says it's now totally safe to use the product again!

In a weird bit of performative nonsense, Senators Thom Tillis and Pat Leahy, along with Representatives Hakeem Jeffries and Nancy Mace, have come together to... try to help kids lock up culture under copyright. Specifically, they want a bill that would allow kids to register a copyright for free for participants in the Congressional Art Competition and the Congressional App Competition. It is not at all clear why this is necessary, other than to perpetuate the myth that you need a copyright to be creative.First, to be clear, any such unique and original artwork is already covered by copyright. For better or for worse (by which I mean, for worse), the US now says that copyright is automatic from the time the work is "fixed" in a tangible medium (and if you try to point out that computer code is not a tangible medium, it gets them very, very angry, so don't bother...). So no one needs to register their copyright to be protected. Not registering does limit the ability of the copyright holder to sue or to get statutory damages. But if anyone creating works for a Congressional Art Competition is seeking to sue others, well, that seems like a bigger problem right there.But here's the key point: copyright is supposed to be there solely as an incentive for creation. The entire setup and basis for copyright in the Constitution is so that Congress can create incentives to promote the progress of science and the useful arts (and, copyright was meant for the "science" part, patents are the "useful arts"). I can pretty much assure you that no one creating artwork or apps for a Congressional competition is doing so because they're incentivized by the copyright. They're doing so because of the competition itself and the desire to express themselves (and maybe get some attention for what they've done).So encouraging locking these things up is bizarre and counterproductive. More to the point, why aren't these elected officials suggesting that the artists and developers entering these competitions explore the many Creative Commons options to help get their works more widely known?The answer, tragically, is as obvious as it is cynical. This is all driven by the legacy copyright industries who keep trying to push the myth that copyright = creation. And these are their favorite elected officials. Hollywood backed Tillis strongly in the last election, in which he was expected to lose, so he clearly owes them. Leahy has always been extremely close to Hollywood. Beyond being the Senate supporter of SOPA (his version was PIPA), Hollywood always rewards Leahy by giving him small roles in every Batman film. His daughter is also a Vice President and top lobbyist for the Motion Picture Academy, Hollywood's top lobbying body.On the House side, the legacy copyright industry has been cultivating a close relationship with Jeffries for a while now, including setting up a neat fundraiser for him in which if you just pay him (and Jerry Nadler) $5k each you get to hang out with Jeffries at the Grammies. Nice work if you can get it. Nancy Mace is new to Congress, so she may just be along for the ride here.The problem with all of this is just how cynically corrupt this seems. Even if it's in the form of "soft corruption," the connection of a few Senators and Representatives pushing a misguided line of thinking -- that completely undermines the very basis for copyright law -- in favor of the myth pushed by Hollywood and the legacy recording industry, it just makes everyone actually respect copyright even less.This isn't what copyright is for, and it's shameful that these elected officials are pushing the myth forward.

The first batch of decisions about Facebook's content moderation from the recently-established Oversight Board has garnered lots of reactions, including many kneejerk ones — but there's plenty to discuss, so for this week's episode Mike is joined by Harvard Law's Evelyn Douek to talk about the decisions themselves and what they signal about the board as a whole.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.

Congress is on the brink of destroying the internet as we know it.Bipartisanship in Congress is usually rare to see, but odd alliances have formed in the Capitol against Section 230, a law that regulates content moderation online which is in large part responsible for the incredible growth and diversity of the internet. Republicans accuse Facebook and Twitter of censoring conservative users on their platforms. Democrats accuse these companies of not doing enough in removing extremist or false content. While both sides agree that S230 has got to go, they’re at war with each other over who will drive regulatory efforts on content moderation. In the end, it won’t really matter who wins. Either way, the spoils of this war will be a gutted S230 or its repeal. That’s bad news for everyone.Before they ruin the internet entirely, Democrats and Republicans should take a step back and let industry standards catch up with the times.Removing Section 230 because of actors like Facebook and Twitter would mean harming other websites that haven’t done anything wrong and putting companies in the crossfire. On the other hand, too many new restrictions would cripple the competitive edge our tech sector has over the rest of the world. In both cases only larger companies like Facebook and Twitter would survive, while small businesses — like a family restaurant in Steubenville, Ohio, whose social media presence is driven entirely by customer reviews — would suffer and likely close.This doesn’t mean that nothing should be done. Something should be done, and soft law is the way.Soft law is not “law” in the normal sense. It refers to the diverse tools used by private or government bodies to guide how industries should develop. Common soft laws include industry standards created by public-private partnerships, the LEED rating system of the U.S. Green Building Council, and the guides on how to treat COVID by the Center for Disease Control. The uniqueness of soft law is that, instead of coming primarily from government regulators, it can come from anywhere. And instead of focusing on setting strict rules, it focuses on methods to attain ideal outcomes. This makes it “soft” because interpretation of the ‘law’ will differ between participants, who will not be fined for going their own way. Soft law provides guidance while encouraging innovation in reaching industry goals. In this way, it beats the rigidity of hard law.Soft law is already heavily utilized in artificial intelligence and automated vehicles, so legislators, regulators, and private companies advocating for this approach would have a strong precedent to point to as Section 230 talks continue. Moreover, this wouldn’t be the first time that we tried to regulate the internet with soft law. The early internet was ‘regulated’ by the Clinton administration through The Framework for Global Electronic Commerce, which established principles of how the federal government would regulate internet activities and how it expected the private sector to act. Most importantly, it stated that, “…governments should recognize the unique qualities of the Internet. The genius and explosive success of the Internet can be attributed in part to its decentralized nature and to its tradition of bottom-up governance.”As legislators look to revise regulations on the internet, it's essential they preserve that bottom-up governance that made the internet such an explosive success. To that end, rather than prescribing a one-size-fits-all approach to content moderation, the government should encourage companies to develop their own standards and make those standards publicly accessible. Instead of prescribing a single set of rules for the internet, the government should hold up companies developing their unique standards as models for the industry at large.A great example of one such model is the Oversight Board of Facebook, which recently announced its first series of case complaints against the company. The board, composed of former Prime Ministers, think tank leaders, and legal scholars, deliberated and overturned four out of five cases of censorship. Facebook released a statement saying they would abide by the decisions and work to create clearer content moderation policies. Facebook’s approach is innovative for tech giants like itself, but smaller companies require different standards for their audience. Nonprofits like Wikipedia handle this with their own open-source system that encourages volunteer administrators collaborating on content issues. Smaller companies like AllTrails bring moderation to their entire user-base to suggest new trail maps and edit current ones based on user feedback.Government needs to understand that what works for Facebook won't work for everyone else, and targeting Section 230 to fix all content moderation problems is the wrong approach. The key idea of Facebook’s Oversight Board, Wikipedia’s volunteer administrators, and AllTrails’ public moderation is that they all accomplish the same goal in very different ways. And that’s the essence of soft law. Protected by Section 230, and without an overarching government agency or document requiring them to reach a prescribed standard, companies should be able to create innovative methods in content moderation all on their own.Some argue that self-regulation is a big nothing burger — that it’s little more than a facade shielding companies from having to take any real responsibility for content posted on their sites. But that’s not true. Leaving content moderation solely to the companies makes them accountable to the public. By now we should all know just how compelling the public can be. For instance, last June public perception of Facebook’s ability to make good decisions on content moderation was overwhelmingly negative, with about 80% not trusting ‘Big Tech,’ but trusting the government even less. It’s no coincidence that Facebook launched its Oversight Board that summer. Other examples of companies imposing standards voluntarily to meet the public’s demand for accountability include Reddit’s “Transparency Report” which is issued every year allowing the public to see what content is being removed and the reasons for doing so. This report is a part of Reddit’s interpretation of the Santa Clara Principles, a soft law effort led by the Electronic Frontier Foundation, ACLU, and several other non-profits. Following these principles allows the public to hold companies accountable to their own promises, addressing a major issue in customer trust while maintaining the integrity of Section 230.Section 230 allowed entrepreneurs the protection and flexibility to explore new directions in tech that lead to some of the greatest economic and technological advancements in US history. Instead of gutting a law that made the internet what it is today, regulators should respect soft law alternatives brought by the private sector and encourage companies to find what works, helping users and businesses that rely on platforms currently protected by Section 230. Innovation is what will win the war of the web. We’ll only have a free internet as long as we can keep it.Luke is an economics graduate student at George Mason University focusing on entrepreneurship, health, and innovative technology. You can follow him on twitter @LiberLuke.

It has been strange to see people speak about Section 230 and illegal discrimination as if it were somehow a new issue to arise. In fact, one of the seminal court cases that articulated the parameters of Section 230, the Roommates.com case, did so in the context of housing discrimination. It's worth taking a look at what happened in that litigation and how it bears on the current debate.Roommates.com was (and apparently remains) a specialized platform that does what it says on the tin: allow people to advertise for roommates. Back when the lawsuit began, it allowed people who were posting for roommates to include racial preferences in their ads, and it did so in two ways: (1) through a text box, where people could write anything about the roommate situation they were looking for, and (2) through answers to mandatory questions about roommate preferences.Roommates.com got sued by the Fair Housing Councils of the San Fernando Valley and San Diego for violating federal (FHA) and state (FEHA) fair housing law for allowing advertisers to express these discriminatory preferences. It pled a Section 230 defense, because the allegedly offending ads were user ads. But, in a notable Ninth Circuit decision, it both won and it lost.In sum, the court found that Section 230 indeed applied to the user expression supplied through the text box. That expression, for better or worse, was entirely created by the user. If something was wrong with it, it was the user who had made it wrongful and the user, as the information content provider, who could be held responsible—but not, per Section 230, the Roommates.com platform, which was the interactive computer service provider for purposes of the statute and therefore immune from liability for it.But the mandatory questions were another story. The court was concerned that, if these ads were illegally discriminatory, the platform had been a party to the creation of that illegality by prompting the user to express discriminatory preferences. And so the court found that Section 230 did not provide the platform a defense to any claim predicated on the content elicited by these questions.Even though it was a split and somewhat messy decision, the Roommates.com case has held up over the years and provided subsequent courts with some guidance for how to figure out when Section 230 should apply. There are still fights around the edges, but figuring out whether it should apply has basically boiled down to determining who imbued the content with its allegedly wrongful quality. If the platform, then it's on the hook as much as the user may be. But its contribution to wrongful content's creation still had to be more substantive than merely offering the user the opportunity to express something illegal.

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Last week, Senator Amy Klobuchuar introduced a major antitrust reform bill, entitled the Competition and Antitrust Law Enforcement Reform Act. This isn't much of a surprise, as Democrats have made it quite clear that they seek to use antitrust much more aggressively than it's been used over the past few decades. I'm a big believer in the need for more competition, in general, but often worry that antitrust is not the best way to get there.The bill will put more budget and power in the hands of the DOJ and the FTC, and also would change the legal standards for anticompetitive mergers, as well as put the burden on merging companies to prove that they are not violating antitrust, rather than as it stands now, with the burden being on the DOJ to show that the merger violates the law. Better funding the DOJ and the FTC on competition issues strikes me as a sensible move here (more the FTC than the DOJ, but no need to get that picky). However, a lot of the rest of the bill seems like it could have the opposite of the intended effect.I get the thinking behind this, but as structured, it appears like it could have significant unintended consequences that actually decreases competition rather than increases it. In a lot of ways, the key thing this bill would do is to significantly reduce merger and acquisition activity. It has two main mechanism that would basically kill a significant number of deals:

After the Trump FCC effectively neutered itself at telecom lobbyist behest, numerous states jumped in to fill the consumer protection void. California, for example, passed some net neutrality rules in 2018 that largely mirrored the FCC's discarded consumer protections. There's a strange contingent of folks who try to claim that because the internet didn't immediately explode in a rainbow of fireworks, the net neutrality repeal must not have been a big deal. But a major reason why ISPs didn't behave worse (than they already are) is because they didn't want to violate new state laws.That said, they did yeoman's work to try and thwart these state efforts too. Including convincing Billy Barr's DOJ to file suit against California to prevent the popular bill from ever becoming law. You know, "states rights!" and all that.The DOJ's central argument was that California's attempt to protect consumers was somehow "anti-consumer" and "extreme" (it was neither). The suit leaned on language the FCC included in its repeal (at industry behest) claiming that states couldn't step in and protect consumers in the wake of federal apathy. The courts so far haven't looked too kindly upon that logic, arguing that the FCC can't abdicate its authority over telecom consumer protection, then try to lean on that non-existent authority to try to tell states what to do.This week the DOJ's ham-fisted effort to curry favor with US telecom monopolies fell apart completely when the Biden DOJ quietly pulled out of the lawsuit. It was a move quickly applauded by new FCC Commissioner Jessica Rosenworcel:

Clearview has screwed with the wrong people. The reprehensible facial recognition AI company that sells access to its database of scraped photos and personal info managed to raise the ire of some of the most restrained and polite people in the world, as Kashmir Hill reports for the New York Times.

For some reason, we, the people, keep having to shell out cash to employ a lot of unreasonable law enforcement officers.We've already seen some federal courts respond to violent law enforcement responses to the mere presence of journalists and legal observers during protests. The targeting of non-participants by law enforcement has been met with injunctions and harsh words for the officers participating in these attacks.Much of what's been covered here deals with months of ongoing protests in Portland, Oregon and violent responses by federal officers. But this appeals court ruling (via Mike Scarcella) shows the problem isn't confined to the Northwest or federal law enforcement. Cops are attacking journalists in other cities as they try to do nothing more than cover highly newsworthy events.And the problem isn't new either. This case [PDF], handled by the Eighth Circuit Court of Appeals, deals with an attack on three Al Jazeera reporters covering protests in Ferguson, Missouri following the killing of Michael Brown.Local law enforcement officers may not have been wearing cameras, but the journalists brought their own. The events that transpired were captured in the course of their attempted coverage of Ferguson protests. Fortunately, this footage exists. The version of events offered by the sued deputy is a lie. Here's what was captured by Al Jazeera cameras:

As we've been noting in posts throughout the day, today is the day that, 25 years ago, then President Bill Clinton signed into law the Telecommunications Act of 1996. That large telco bill included, among many other things, the Communications Decency Act, a dangerous censorial bill written by Senator James Exon. However, buried in the CDA was a separate bill, written by now Senator Ron Wyden and then Representative Chris Cox, the Internet Freedom and Family Empowerment Act, which today is generally known as Section 230 of the CDA. A legal challenge later tossed out all of Exon's bill as blatantly unconstitutional.However, on the day of the signing, most of the internet activist space wasn't even thinking about Section 230. They were greatly concerned by Exon's parts of the CDA and some other provisions in the Telecommunications Act that they feared could cause more harm than good. This inspired John Perry Barlow to write his now famous Declaration of the Independence of Cyberspace, which was also released 25 years ago today. It's worth reading and reflecting on it 25 years later:

Never forget the IoT device you invite into your home may become the state's witness. That's one of the unfortunate conclusions that can be drawn from Amazon's latest transparency report.Amazon has its own digital assistant, Alexa. On top of that, it has its acquisitions. One of its more notable gets is Ring. Ring is most famous for its doorbells -- something that seems innocuous until you examine the attached camera and the company's 2,000 partnerships with law enforcement agencies.Ring is in the business of selling cameras. That the doorbell may alert you to people on your doorstep is incidental. Cameras on the inside. Cameras on the outside. All in the name of "security." And it's only as secure as the people pitching them to consumers. Ring's lax security efforts have led to harassment and swatting, the latter of which tends to end up with people dead.Malicious dipshits have been using credentials harvested from multitudinous breaches to harass people with Ring cameras. The worst of these involve false reports to law enforcement about activity requiring armed response. That no one has ended up dead is a miracle, rather than an indicator of law enforcement restraint.Ring wants you to hand over footage to law enforcement agencies. That's why it partners with agencies to hand out cameras for free and instructs officers how to obtain footage without a warrant. That's also why it stays ahead in the PR game, handling press releases and public statements it feels law enforcement officials are too clumsy to handle on their own.And gather footage law enforcement does, as Zack Whittaker reports for TechCrunch. Omnipresent IoT devices give law enforcement plenty of recordings and other information -- with or without the consent of device owners and with or without the warrants they would normally need.

I know that Section 230 is very much under attack these days, and I've seen so many people cheer when we point out that dumping 230 could take away (or at least, drastically alter) the sites we love and appreciate every day. I think this is because of a natural tendency of many people to focus on the negative side of things in existence, and to ignore all of the good that has resulted from them. In some ways, I think it's a variation on the famous Douglas Adams quote:

With both Twitter and Facebook banning Donald Trump's account last month, after he inspired a mob of goons to ransack the Capitol, there has been something of an eerie quiet in the world. Having spent years making sure that every one of his often disconnected-from-reality tweets makes headlines or ruins many peoples' days, the sudden quiet has been kind of odd.Many people have wondered why he hasn't gone elsewhere. While Parler is still down (but expected to return soon), many were surprised that Trump never used it, since his base basically adopted it as their own. However, late last week it was revealed that the Trump Organization had been negotiating (while Trump was President) with Parler for him to first take a huge equity ownership stake in Parler before joining the platform. For whatever reasons the agreement did not materialize.However, a Daily Beast article, mostly about Trump's views on Liz Cheney, drops a little hint about how Trump has been dealing with his inability to tweet: he's writing out what he would have tweeted on paper and hoping someone else will tweet it for him:

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Get your tickets for Section 230 Matters before February 23rd »Twenty five years ago today, then President Bill Clinton signed the 1996 Telecommunications Act into law. There was a lot in it, including the Communications Decency Act. And, buried within the Communications Decency Act was a part that was originally the Internet Freedom and Family Empowerment Act, written by then Representatives Chris Cox and Ron Wyden, but which is now generally known as Section 230. The rest of the CDA was tossed out as unconstitutional in an important early judicial review of internet regulations, but Section 230 survived. That means we've now made it 25 years with Section 230, and its key "26 words" helping to protect and enable an open internet. For reasons that don't fully make sense, Section 230 is now under assault from both major political parties (though often for diametrically opposed reasons!).However, while we still have it, we thought it would be nice to throw Section 230 (and the open internet) a 25th birthday party -- and to have both Senator Ron Wyden and Chris Cox come to talk about Section 230, its past and (hopefully) future. So on Tuesday, Feb. 23rd at 12:30pm PT / 3:30pm ET we're hosting Section 230 Matters, which is both a celebration of Section 230, and a fundraiser for Techdirt, so that we can continue to report on Section 230, free speech, the open internet, and more. While the event is, of course, virtual, we're using a wonderful platform called Remo that simulates the experience of actually attending an event. You get to sit at a "table" and talk with the other people at your table, and can move around and talk with and network with other attendees.The event will consist of some open networking/conversation, some table discussions about 230, and the main presentation of me moderating the conversation with both Cox and Wyden. It should be a really fun time, a chance to celebrate the open internet, and a chance to help support Techdirt and allow us to keep doing what we do.Get your tickets for Section 230 Matters before February 23rd »

First there was the Securus and LocationSmart scandal, which showcased how cellular carriers and data brokers buy and sell your daily movement data with only a fleeting effort to ensure all of the subsequent buyers and sellers of that data adhere to basic privacy and security standards. Then there was the blockbuster report by Motherboard showing how this data routinely ends up in the hands of everyone from bail bondsman to stalkers, again, with only a fleeting effort made to ensure the data itself is used ethically and responsibly.Throughout it all, government has refused to lift a finger to address the problem, presumably because lobbyists don't want government upsetting the profitable apple cart, government is too busy freely buying access to this data itself, or too many folks still labor under the illusion that this sort of widespread dysfunction will be fixed by utterly unaccountable telecom or adtech markets.Enter the New York Times, which in late 2019 grabbed a hold of a massive location data set from a broker, highlighting the scope of our lax location data standards (and the fact that "anonymized" data is usually anything but). This week, they've done another deep dive into the location data collected from rioting MAGA insurrectionists at the Capitol. It's a worthwhile read, and illustrates all the same lessons, including, once again, that "anonymized" data isn't real thing:

This week, our first place winner on the insightful side is an anonymous commenter pointing out how, in criticisms of online speech and demands for regulation, people often forget that some of the things they complain about, like "influencing elections", are exactly what all speech is for:

View all of this year's entries on itch.io »Our public domain game jam, Gaming Like It's 1925, has come to a close, and the entries are now being reviewed by our amazing panel of judges. They need a bit of time to work through all the games, but while you wait, you can check out the entries for yourself.We got more entries than last year, though there are a couple that don't quite qualify for the jam because they aren't clearly based on 1925 works. The designers had lots of clever and creative ideas this year, and some of the games are nicely polished. As expected, we got lots of entries based on The Great Gatsby, but plenty of designers also explored other corners of the public domain and built games based on 1925 art, poetry, film, and music. All the games are either playable in the browser or downloadable as PDFs and other game materials, and you can dig through them all over on the game jam page.Once again, a big thanks to all the designers who submitted games this year, and to all our judges who are reviewing the entries and selecting winners in six categories, which we'll announce later this month. And if you didn't manage to get an entry in this year, it's never to early to start looking into works that will enter the public domain in 2022, when we'll be back with Gaming Like It's 1926!

There's a rule in IT: don't test on live systems in production. There's debate over this, of course, but the general idea is that testing on live systems is a great way to screw up something with the live system, rather than some test environment. The more important the system is, the more true that mantra becomes.Which brings us to the Texas Amber Alert system. See, Texans subscribed to get Amber Alerts via email got one last week that seemed a little... off.First... terrifying. As someone who absolutely hates horror movies because I'm a big scared wimp, getting this alert is pure nightmare fuel. But it's also sort of funny, except that this kind of testing on the live Amber Alert system is pretty dumb. The whole thing apparently happened due to a test being run on the system and it accidentally got sent out to email subscribers. Give the folks responsible for this high marks for going into detail on the joke, though.

Summary: Dealing with content moderation during real-time chats always presents an interesting challenge. Whether it’s being able to police language in real time, or dealing with trolling and harassment, chat has always been one of the most difficult content moderation challenges going back to its earliest days.In 2016, Twitch decided to enable a new feature for its users: an “emote-only” mode for the chat. Emotes, on Twitch, are basically a custom set of what are more traditionally called emoji on most other websites/platforms. With Twitch, though, they are almost entirely custom, and users at certain levels are able to add their own.Emote-only is one of a bunch of different modes and features that Twitch streamers can use to try to tame their chat. Twitch itself suggests using this as a way to stop harassment in the chats.Turning on and off the feature is a choice for the streamer themselves, rather than Twitch. It’s just one of a few tools that Twitch users can enable to deal with potentially harassing behavior in the chat alongside their streams.Decisions for Twitch:

Just because Senators Warner, Hirono, and Klobuchar are apparently oblivious to how their SAFE TECH bill would destroy the Internet doesn't mean everyone else should ignore how it does. These are Senators drafting legislation, and they should understand the effect the words they employ will have.Mike has already summarized much of the awfulness they propose, and why it is so awful, but it's worth taking a closer look at some of the individually odious provisions. This post focuses in particular on how their bill obliterates the entire Internet economy.In sum, and without exaggeration: this bill would require every Internet service be a self-funded, charitable venture always offered for free.The offending language is here:

Another day, another multi-billion dollar defamation lawsuit. And like the other lawsuits filed over frothy falsehoods that emerged from the spittle-flecked lips of Trump lawyers and supporters, this one also targets people who definitely should have known better than to engage in the speech they did.Smartmatic -- a voting tech company whose name was dragged into the mud by a number of Fox News personalities and Trump legal team members -- is suing three Fox News hosts and two lawyers. Media members and lawyers should definitely know how to stay away from engaging in alleged libel. But everyone sued here (Rudy Giuliani, Sidney Powell, Lou Dobbs, Maria Bartiromo, and Jeanine Pirro) abandoned their better instincts to wallow in the lowest-common-denominator toxicity that exemplified Trump's response to losing a national election.And Smartmatic had hardly anything to do with the national election. While Dominion Voting Systems -- another post-election libel litigant -- is in use in nearly half the nation, Smartmatic's software was used in one single county in the US during the 2020 election.But conspiracy theorists gotta theorize. So this group of morons in hurry to curry favor with Trump amplified a bizarre claim that Smartmatic was a tool of deceased Venezuelan dictator Hugo Chavez. In reality, Smartmatic is an American company founded by two Venezuelans. Its software was used by the Venezuelan government, but there's absolutely no evidence the company itself engaged in any voter fraud, vote switching, or anything other illegal behavior Hugo Chavez's government participated in.The company's 285-page(!) lawsuit [PDF] lays down the facts. A lot of the lawsuit's runtime is given over to recounting the lies told by the two Trump lawyers and three Fox News hosts. Because the lying has been pretty much nonstop since last November, the filing is necessarily lengthy. Much of it highlights statements that were delivered by the defendants that made it clear they were stating facts, rather than simply offering their opinion on perceived election irregularities.It also points out a long list of facts that would have been verifiable if any of the defendants had felt the slightest inkling to engage in the truth for a change.

For the past few months we've been seeing a ton of terrible/ridiculous/awful/unconstitutional bills coming from mostly Republicans to try to wipe out or undermine Section 230. Most of those were focused on trying to force websites to do less content moderation. Now that the Democrats are back in power, it appears we're going to be getting the opposite. Senator Mark Warner has introduced his new Section 230 reform bill, called the SAFE TECH Act ("Safeguarding Against Fraud, Exploitation, Threats, Extremism, and Consumer Harms Act" co-sponsored by Senators Mazie Hirono and Amy Klobuchar), and it is one of the worst Section 230 bills I've seen. It is difficult to explain just how bad this bill is concisely, because it has so many bad ideas crammed into one single bill. It's as if none of these three Senators or their staff spoke to anyone who actually understands how the internet works, or how content moderation/trust and safety works. It's stunning in the ignorance it displays.About the only good thing I'll say about it, is that (unlike most bills) at least Warner released a redline version to show how it would actually (massively) change Section 230. He also put out an incredibly disingenuous FAQ that flat out lies about... nearly everything. We'll go through that in a bit.Basically, this bill takes nearly every single idea that people who want there to be less speech online have had, and dumped it all into one bill. There's a lot in there, and nearly all of it is bad. Last week I wrote about a draft bill in the House that suggested carving out civil rights law from Section 230. In my analysis of that bill, I noted that it appeared to come from a well meaning place, but was simply misguided. This bill, which also includes a carveout for civil rights law, does not come from a well meaning place. The drafters of the bill are either malicious or ignorant. It's not a good look for Senators Warner, Hirono, and Klobuchar.A key thing to recognize is that it's obvious that the drafters of this bill believe the myth that 230 protects "big" tech companies. The bill is written as if it is only talking about Facebook, YouTube, and Twitter. Warner handwaves away the idea that the bill would destroy smaller companies in his announcement by ridiculously (and against all evidence to the contrary) saying that startups are too small to sue, so it would only be used against larger companies.The most devious and nefarious part of this is that the bill effectively wipes out Section 230 protections for the entire internet while pretending it's just a minor change. This bill is about as close to a full repeal of Section 230 as you can get realistically. In the press release about the bill, Warner claims that it's just a tweak to 230 because "these changes to Section 230 do not guarantee that platforms will be held liable in all, or even most, cases," but that would also be true with repeal. Because most things that people want to blame on internet websites are not actually violations of the law. And, assuming a form of distributor liability is what the courts decide on, that would mean websites wouldn't be liable for most things on their site anyway -- but would result in long and costly legal battles before they could prove that.And this bill guarantees the same exact thing. The biggest, most consequential change, is that it takes the famous "26 words," which are Section (c)(1) of the current law, removes the protections entirely if money exchanges hands, and then changes it from an immunity to merely "an affirmative defense." That may not seem like much, but it basically wipes out all of the actual benefits of 230.Saying that you don't get (c)(1) if money exchanges hands, basically wipes out Section 230 for many, many services. All web hosting would no longer be protected by Section 230. If, as many people have been demanding, social media offers up paid options (say, to remove ads), doing so would remove their 230 protections. Incredibly, this bill is coming from the same people who have been saying that Facebook and Twitter should offer a "paid version" without ads or tracking -- but, under this bill, if they do that, they'd lose 230! Incredibly, under this bill, the two cases that inspired Section 230 -- the CompuServe case and the Prodigy case -- would not be eligible for 230 protections, because both were paid services!The switch from (c)(1) being an immunity to being "an affirmative defense" in which the website "has a burden of proving by a preponderance of the evidence" basically erases the key procedural benefits of Section 230 -- which is that it gets cases tossed right up front. This gets somewhat deep in the weeds of civil procedure, but having (c)(1) as an immunity allows companies to file a relatively straightforward motion to dismiss upfront, without having to do a lot of expensive legal work, and argue that, because of 230, there is no legitimate claim in the complaint, even if everything in that complaint is accurate. This is the key benefit of 230 in protecting websites.But by making it an affirmative defense, which the website has to prove by a preponderance of evidence, you've just made everything a lot more expensive and it will take a lot longer to deal with. Not only are you going to have to pay a lot of expensive lawyers a lot more money to make a preponderance of the evidence claim, many courts find that such determinations are issues of fact, not law, meaning that they need to go to a jury. If a case goes to trial and has a jury, you're talking about it costing at least a million dollars for any company, and probably a lot more.This wipes out the entire benefit of Section 230 by itself. Most companies, of course, will then try to avoid just having to face this by quickly taking down anything even remotely questionable or anything that people complain about. And they'll still get sued. This bill would absolutely destroy most of the open web.The second massive change, is that it would exclude Section 230 entirely from "injunctive relief" claims for failing to remove "harmful" content. In other words, this would allow a bevy of lawsuits from people who just want something taken offline (and aren't asking for monetary damages), that they will claim creates "harm" to them, and the websites can no longer respond with 230. While supporters of this bill might argue that filing such a lawsuit alone would be expensive, so this wouldn't be abused, that ignores how frequently we've seen especially the rich and powerful try to use any legal means possible to remove content they dislike from the internet. This clause is like a free shot for the rich and powerful to silence criticism. It's like a pro-SLAPP clause!The bill then adds a bunch of other carveouts from 230: civil rights law, antitrust, harassment, stalking, human rights law and wrongful death. As we already discussed, while it may sound good to say this can't be used to block civil rights cases, in actual practice a bunch of recent "civil rights" cases have involved white supremacists, out-and-out misogynists, and other terrible people claiming that their civil rights were violated by being kicked off of platforms. Enabling such lawsuits seems incredibly short sighted.This bill is dangerous.And what's truly obnoxious about it is that in the FAQ about it, Mark Warner pretends otherwise.

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An ongoing federal lawsuit is challenging the CBP's decision to turn supposed border control efforts into easy drug busts for local cops.A New Hampshire man is challenging the checkpoints set up by the CBP nearly 100 miles from any border in New Hampshire. The CBP apparently decided to spend a couple of years camped out on I-93 (from 2017 to 2019), 90 miles away from the nearest border.The 90 mile marker is significant. Anything within 100 miles of a US border is still considered a "border" (even if it's an international airport located further than 100 miles inland from any natural border). Inside this Constitutional gray area, rights are malleable. In many cases, they're almost nonexistent. But the challenge raised here addresses what the CBP is doing and how it has nothing to do with any border protection or customs efforts.Jesse Drewniak has sued the CBP, along with an agent and supervisor, for an apparently unlawful search that resulted in a small amount of hash oil being recovered from his car and, more significantly, some criminal charges from local prosecutors.Drewniak's case cites a New Hampshire court's decision [PDF] that found in favor of another person caught in the CBP's inland dragnet. As cars waited to be cleared by CBP officers, other officers ran dogs around their cars. Alerts resulted in searches. And these searches often resulted in drug cases handed over to local law enforcement.As the New Hampshire court points out, this violates New Hampshire's constitutional protections. And it has nothing to do with the CBP's stated reasons for setting up a checkpoint 90 miles from the Canadian border. Here's what happened at the inland checkpoint in 2018, which was apparently the CBP's standard M.O. for the two years the checkpoint remained active.

So we've noted that a lot of the accusations that Huawei spies on Americans on behalf of the US government are lacking in the evidence department. The company's been on the receiving end of a global blocklist based on accusations that have never actually been proven publicly, levied by a country (the United States) with a long, long history of doing exactly what it accuses Huawei of doing. While scrutiny of Chinese gear is certainly warranted, at the same time it's a rather idiotic rabbit hole filled with xenophobic politicians being played by US companies that like to drum up NatSec hysteria for political advantage.That of course doesn't mean Huawei, like so many telecom giants, isn't a terrible company that routinely makes unethical decisions. Like when the company was busted helping several different African governments to spy on political opponents and journalists. Or when it was shown to be eagerly helping China build facial identification systems to quickly identify Uighur Muslims. Or, more recently, when the company was busted creating entirely fake people in a ham-fisted bid to try and boost its reputation.Last week, the company was busted for creating at least fourteen different Twitter accounts pretending to be respected telecommunications experts, writers, and assorted academics. Their goal, to cast doubt on Belgian legislation attempting to limit "high risk" vendors from building the nation's 5G networks. The bogus, pro-Huawei accounts used computer generated profile pictures. Their Tweets were then amplified by official, and real, Huawei executives:

It really is kind of crazy just how often Taylor Swift shows up in Techdirt's pages. One reason for this is that she seems to seesaw in the news between being the victim of and perpetrator of ridiculous intellectual property disputes. The whole "Shake It Off" thing was really silly, for instance, but so were Swift's attacks on fans and journalists over spurious trademark concerns. And, so, she doesn't neatly fit as a hero or villain. Instead, every time her name pops up in intellectual property news, the immediate question becomes, "Which side of it is she on this time?"Today, that answer is as the victim. See, Swift recently released her album, Evermore, and applied for trademarks for the term, too. Meanwhile, the owner of a Utah theme park that goes by the same name has decided to file a trademark lawsuit against her for using the term, claiming that the album and associated merchandise are creating real confusion in the marketplace.

Last year, as a consequence of the COVID-19 pandemic, the “offline” world suddenly became a lot more online. All around the world, people have struggled to adapt. Worst off are those who can’t take internet access for granted. The Federal Communications Commission will spend many resources on the domestic side of this challenge, further investing in internet connectivity reach, quality, and affordability. But the international side, known as “internet freedom,” is a harder question.Internet freedom may generate fewer headlines than a decade ago, when it was a signature issue of then-Secretary of State Hillary Clinton. But internet freedom is just as necessary now as it was then. For example, in China, crucial information about the spread of COVID-19 was often unavailable, and citizens resorted to using technical workarounds to upload and view videos about the pandemic on government-blocked YouTube. And in Iran, those who follow the Baháʼí faith are denied access to education, and depend on internet freedom technologies to give themselves the most basic opportunities. There are many more such examples in internet repressive countries around the world.Fortunately, bipartisan support for internet freedom in Congress has kept funding levels robust over the past four years, and consistent leadership from within the Department of State and other funders has kept this work strong. But as with so many other areas of policy, the Trump administration not only did not add value, but actively made things worse by engaging in a harmful turf war. Partisan leadership at the U.S. Agency for Global Media (USAGM) disrupted the funding and operations of its independent grantee Open Technology Fund (OTF) when OTF chose to pursue good policy over bad politics, an approach that - to give one example - led the organization to support early development of the now-popular Signal secure messaging service.The first internet freedom action by the Biden administration should be to reverse course and install leadership at USAGM that can work constructively with OTF, the State Department, and other funders to support scalable open source technology and community internet freedom solutions. Congress did its part through the defense funding bill passed on New Year’s Day (in the first-ever override of a veto by Trump), allocating substantial resources and setting the tone for open source to be at the heart of internet freedom efforts. And President Biden has cleared the way by firing Michael Pack, head of USAGM, on inauguration day. Now it’s President Biden’s move again, to make a better appointment at USAGM than his predecessor did.Internet freedom is a human rights issue, but it isn’t just a human rights issue. As 2020 demonstrated so clearly, the internet is connective tissue for massive parts of our economy and our society. Thus, China’s Great Firewall does far more than just repress free expression: it also implements an economic protectionist agenda, and is a powerful tool for fostering nationalist support at home. To counter these challenges, the Biden administration should adopt a positive agenda of supporting the global free flow of data and information, to prove in practice the superiority of digital globalization over repression and protectionism. That means growing the internet freedom agenda further, well above and beyond the State Department’s Bureau of Democracy, Human Rights, and Labor where it was incubated, to embrace the economic and political divisions at State as well as the Department of Commerce.Perhaps more than any other federal agency, the State Department is in need of a hard reboot. Under Trump, the United States reverted to being a unilateral bully, bringing back the “Team America: World Police” spirit of the George W. Bush administration, forcing out centuries of institutional knowledge and expertise. Unsurprisingly, that strategy has failed. China in particular possesses many advantages on the global stage, and will be in an even better position in many respects after 2020. The United States faces a drastically weakened foreign policy position, and cannot turn any tides alone. In the context of internet freedom, the American agenda should include expanding efforts with the Freedom Online Coalition and other diplomatic avenues where we can work arm-in-arm with other countries who, frankly, possess more goodwill on the global stage than the U.S. does right now.Finally, leadership starts at home. For at least the past decade, the U.S. approach to digital government surveillance has been outright hostile, highlighted by frequent battles in an ill-conceived war on encryption. President Biden has an opportunity to show strong support for privacy and security by shaping the interagency and National Security Council to better balance law enforcement with civil rights and internet freedom champions. The newly created role of a White House coordinator for democracy and human rights is a good start. It’s past time the U.S. stops pursuing backdoors that would put everyday internet users at great risk.Where the internet isn’t open, the people aren’t free. Although the challenges facing the Biden administration in putting the United States back together will be many and broad-ranging, restoring American leadership on internet freedom should be a top priority.Adam Fisk is the founder and president of Brave New Software, a leading 501(c)(3) developer of internet freedom technologies including Lantern and a recipient of U.S. government internet freedom support. Chris Riley is a strategic advisor to Brave New Software and a former member of the internet freedom program team at the State Department.

A few weeks ago Twitter announced Birdwatch as a new experimental approach to dealing with disinformation on its platform. Obviously, disinformation is a huge challenge online, and one that doesn't have any easy answers. Too many people seem to think that you can just "ban disinformation" without recognizing that everyone has a different definition of what is, and what is not disinformation. It's easy to claim that you would know, but it's much harder to put in place rules that can be applied consistently by a large team of people, dealing with hundreds of millions of pieces of content every day.Facebook has tried things like partnering with fact checkers, but most companies just put in place their own rules and try to stick with it. Birdwatch, on the other hand, is an attempt to use the community to help. In some ways it's taking a page from (1) what Twitter does best (enabling lots of people to weigh in on any particular subject), and (2) Wikipedia, which has always had a community-as-moderators setup.

One of the key battles surrounding the EU Copyright Directive involves the threshold at which upload filters will block the use of copyright material in things like memes and mashups. A year ago, Germany was proposing ridiculously tight restrictions: 128-by-128 pixel images, and three-second videos. Now, it is framing the issue in terms of uses that aren't "automatically" blocked by upload filters. The proposed limits here are 15 seconds of video or audio, 125K graphics, and 160 -- yes, 160 -- characters of text (original in German). Even these tiny extracts could be subsequently blocked by upload filters, depending on the circumstances.The worsening situation over upload filters has obscured the other bad idea of the EU Copyright Directive: the so-called "link tax", which would require large Internet companies like Google to pay when they use even small amounts of news material. One worrying development in this area is that the idea has spread beyond the EU. As Techdirt reported, Australia is bringing in what amounts to a tax on Google and Facebook for daring to send traffic to legacy news organizations -- notably those of Rupert Murdoch. In July last year, the Australian government released a draft of what is now dubbed the "News Media Bargaining Code". One of the people arguing against the idea is Tim Berners-Lee (pdf):

A bunch of Republican state legislators across the country are apparently unconcerned with either the 1st Amendment (or reality) have decided that they need to stop social media companies from engaging in any sort of content moderation. Earlier this week, Florida Man Governor Ron DeSantis proposed just such a law, which would be struck down as unconstitutional with amazing speed. The bill, dubbed the "Transparency in Technology Act" would do a bunch of things laid out in this infographic the Florida GOP sent around, almost all of which the state has no authority to do. On the content moderation front, it would require set standards for content moderation that can't easily be changed and require the company apply those standards consistently.That's what lots of people ask for without realizing that's an impossible ask. "Consistency" is not nearly as clear as people seem to think it is. Every scenario is different, and context plays a huge role in determining these things -- but people who complain about inconsistent enforcement never seem to recognize the wider context, and always focus in on some superficial similarity about the content, and insist that different outcomes mean inconsistency. It also ignores the scale of the problem. It also fails to take into account that policies have to keep being updated, because the issues that trust and safety teams face constantly are changing.This bill would be like passing a law saying that the state of Florida must clearly define all its laws, can't pass new laws, and must apply the law consistently. That's not possible.Even more ridiculous (and more unconstitutional) is that the bill would bar any moderation (or removal) of any political candidate. Of course, this would just mean that any troll who wants to be a total asshole online would register to run for office. Remember, it was rumored that well known online troll Laura Loomer supposedly ran for Congress in part because of she believed that it would force Twitter to give her her account back (which did not happen).Of course, it's easy to just point at Florida and say "there goes Florida again..." but it's actually Republican legislators in a whole bunch of states. And this wasn't even the first such bill in Florida. A week or so earlier, Republican state Senator Joe Gruters introduced a bill called the "Stop Social Media Censorship Act" which bars any moderation of "religious or political speech."Gruters may have introduced the bill, but it doesn't look like he wrote it. Because in Kentucky, Republican Senators Robby Mills and Phillip Wheeler introduced a nearly identical bill. Oh, and over in Oklahoma, Republican Senator Rob Standridge also introduced an identical bill. In Arizona, it's Senator Sonny Borrelli who has introduced very similar legislation, though his looks a little different, and (insanely) would try to put into law that a social media website is "deemed to be a publisher" and "deemed not to be a platform" which is, you know, not a thing that actually matters. In North Dakota, there's Republican State Rep. Tom Kading who's similar bill also includes the nonsense publisher/platform distinction.All of these bills are (1) nonsense, (2) pre-empted by federal law, and (3) blatantly unconstitutional under the 1st Amendment. A quick lesson for state legislators: the 1st Amendment means that the government (that's you!) cannot compel private parties (that includes social media companies!) that they have to host speech with which they disagree with. There's plenty of case law on this, but I'll point you to West Virginia State Board of Education v. Barnette which establishes quite clearly that the government cannot compel speech under the 1st Amendment. On top of that, I'll point people to the relatively recent ruling, written by Brett Kavanaugh (remember, Republicans, you supported this guy) and signed by all of the Conservative Justices, in the Manhattan Community Access Corp. v. Halleck case, in which it was made clear that social media websites are not state actors, and cannot be compelled to host speech. As Kavanaugh wrote in that ruling:

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We keep pointing out to people the very slippery slope that happens when we say it's okay for the government to tell websites how they have to moderate. And what's happening in India is a very important case study. As you're hopefully aware, there have been ongoing farmer protests in India, as farmers are quite upset about regulatory changes that they fear will destroy their businesses. The protests have been going on for weeks, but things have recently escalated to include some violence.Prime Minister Narendra Mohdi is responding to all of this in a similar fashion to what he's done before: by cracking down on free speech and going after his critics. It started with full internet blackouts in places where the protesters were, with the government claiming it was necessary to cut off the internet to "maintain public safety" (yeah, right). Then, the government demanded that Twitter block the accounts of various journalists, publications, and celebrities who have been critical of Mohdi. Twitter complied, but after widespread criticism, it turned those accounts back on, apparently telling the Indian government that the tweets were protected free speech and newsworthy.One of the accounts that had been taken down was the Caravan, a small but influential investigative journalism outfit that is widely read among politicians. A writer for Caravan, Vidya Krishnan, has a chilling account in The Atlantic about how this crackdown represents "the end of the Indian Idea." It's well worth reading. It notes that beyond just having the Twitter account shut down, the Mohdi government has arrested a Caravan writer and begun an investigation of its editors.

For years, Comcast has slowly but surely expanded its pointless and arbitrary broadband usage caps and overage fees into all of its markets (picture the boiling frog metaphor, with you as the frog). And for most of that time, the company avoided doing so in the Northeast where it faces more competition from competitors like (uncapped) Verizon FiOS. But recently, likely fearing an incoming Biden FCC willing to do its job, Comcast rushed to finally push these useless, confusing, and expensive restrictions into the Northeast. In the middle of a pandemic. When people were already struggling to pay for basic utilities and rent.Needless to say, lawmakers weren't happy about it. Massachusetts lawmakers were quick to complain about the practice, noting that price gouging captive customers during a financial and health crisis isn't a good look. This morning, Pennsylvania AG nabbed headlines after Comcast announced it would be pausing the expansion of usage caps for a few months (until July):

It's that special time of year again where we here at Techdirt need to remind you that, no, the NFL cannot keep you from referring to The Super Bowl as The Super Bowl, full stop. While the NFL stomps around the entire country every year, slapping down bars and churches for hosting Super Bowl parties, all while an extremely unhelpful media plays along, the truth is that most of the bullying the NFL does isn't over actual trademark infringement. Sure, if some business advertises some association or endorsement by the NFL, that would be trademark infringement. Or if they claimed endorsement of the game or the NFL, that too would be infringing use. But a church simply hosting a Super Bowl party is not trademark infringement.And, of course, the silliest output of this confusion is people and companies using half-baked euphemisms to refer to the Super Bowl instead. Everyone knows what they're talking about and, yet, this somehow isn't infringing. So, were there any confusion, it would still exist, and yet the NFL relents. The most common of these has been "The Big Game", of course, and its use continues to this day.

Summary: GitHub solidified its position as the world's foremost host of open source software not long after its formation in 2008. Twelve years after its founding, GitHub is host to 190 million repositories and 40 million users.Even though its third-party content is software code, GitHub still polices this content for violations of its terms of service. Some violations are more overt, like possible copyright infringement. But much of it is a bit tougher to track down.A GitHub user found themself targeted by a GitHub demand to remove certain comments from their code. The user's code contained the word "retard" -- a term that, while offensive in certain contexts, isn't offensive when used as a verb to describe an intentional delay in progress or development. But rather than inform the user of this violation, GitHub chose to remove the entire repository, resulting in users who had forked this code to lose access to their repositories as well.It wasn't until the user demanded an explanation that GitHub finally provided one. In an email sent to the user, GitHub said the code contained content the site viewed as "unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable." More specifically, GitHub told the user to remove the words "retard" and "retarded," restoring the repository for 24 hours to allow this change to be made.Decisions for GitHub:

The expiring breaths of a sensationalistic failure are emanating from a Florida sex trafficking investigation's soon-to-be corpse. A massive sting operation -- built on surreptitious recordings of massage parlor employees and their customers -- ended with nothing more than a bunch of solicitation charges. The alleged massive sex trafficking operation was actually just a bunch of consensual activity, with massage parlor employees free to come and go as they pleased.It still made headlines, mainly because New England Patriots owner Robert Kraft was one of those caught on camera. But nearly every attempted prosecution has been thwarted by the actions of law enforcement officers, whose recordings illegally intruded into private spaces, violating the Fourth Amendment. The Appeals Court of Florida tossed the allegedly incriminating recordings, finding them unconstitutional.For some reason, the agencies that made the surreptitious, illegal recordings are still holding onto them. The state attorney's office has allowed the retention of the videos, claiming they might be useful to plaintiffs suing law enforcement officers and agencies over violated rights.On the face of it, this seems like a reasonable assertion. There is at least one federal lawsuit involving this sting operation underway. But the state attorney -- David Aronberg -- thinks immunity (qualified or absolute) will allow him and several law enforcement agencies to escape unscathed. Until that happens, Aronberg wants the recordings to remain intact until this litigation concludes, claiming his office can't "legally or ethically" order the destruction of potential evidence against him.But his arguments aren't working. As Elizabeth Nolan Brown reports for Reason, a federal judge has ruled against the state attorney.

Last week, the Oversight Board -- which is the official name that the former Facebook Oversight Board wants you to call it -- announced decisions on the first five cases it has heard. It overturned four Facebook content moderation decisions and upheld one. Following the announcement, Facebook announced that (as it had promised) it followed all of the Oversight Board's decisions and reinstated the content on the overturned cases (in one case, involving taking down a breast cancer ad that had been deemed to violate the "no nudity" policy, Facebook actually reinstated the content last year, after the Board announced it was reviewing that decision). If you don't want to wade into the details, NPR's write-up of the decisions and policy recommendations is quite well done and easily digestible.If you want a more detailed and thoughtful analysis of the decisions and what this all means, I highly recommend Evelyn Douek's detailed analysis of the key takeaways from the rulings.What I'm going to discuss, however, is how the decisions seem to have only reinforced... absolutely everyone's opinions of the Oversight Board. I've said before that I think the Oversight Board is a worthwhile experiment, and one worth watching, but it is just one experiment. And, as such, it is bound to make mistakes and adapt over time. I can understand the reasoning behind each of the five decisions, though I'm not sure I would have ruled the same way.What's more interesting to me, though, is how so many people are completely locked in to their original view of the board, and how insistent they are that the first decisions only confirm their position. It's no secret that many people absolutely hate Facebook and view absolutely everything the company does as unquestionably evil. I'm certainly not a fan of many of the company's practices, and don't think that the Oversight Board is as important as some make it out to be, but that doesn't mean it's not worth paying attention to.But I tended to see a few different responses to the first rulings, which struck me as amusing, since the positions are simply not disprovable:1. The Oversight Board is just here to rubberstamp Facebook's decisions and make it look like there's some level of review.This narrative is slightly contradicted by the fact that the Oversight Board overturned four decisions. However, people who believe this view retort that "well, of course the initial decisions have to do this to pretend to be independent." Which... I guess? But seems like a lot of effort for no real purpose. To me, at least, the first five decisions are not enough to make a judgment call on this point either way. Let's see what happens over a longer time frame.2. The Oversight Board is just a way for Facebook and Zuckerberg not to take real responsibilityI don't see how this one is supportable. It's kind of a no-win situation either way. Every other company in the world that does content moderation has a final say on their decisions, because it's their website. Facebook is basically the first and only site so far to hand off those decisions to a 3rd party -- and it did so after a ton of people whined that Facebook had too much power. And the fact that this body is now pushing back on Facebook's decisions suggests that there's at least some initial evidence that the Board might force Zuckerberg to take more responsibility. Indeed, the policy recommendations (not just the decisions directly on content moderation) suggest that the Board is taking its role as being an independent watchdog over how Facebook operates somewhat seriously. But, again, it's perhaps too early to tell, and this will be a point worth watching.3. The Oversight Board has no real power, so it doesn't matter what they do.The thing is, while this may be technically true, I'm not sure it matters. If Facebook actually does follow through and agree to abide by the Board's rulings, and the Board continues the initial path it's set of being fairly critical of Facebook's practices, then for all intents and purposes it does have real power. Sometimes, the power comes just from the fact that Facebook may feel generally committed to following through, rather than through any kind of actual enforcement mechanism.4. The Oversight Board is only reviewing a tiny number of cases, so who cares?This is clearly true, but again, the question is how it will matter in the long run. At least from the initial set of decisions, it's clear that the Oversight Board is not just taking a look at the specific cases in front of it, but thinking through the larger principles at stake, and making recommendations back to Facebook about how to implement better policies. That could have a very big impact on how Facebook operates over time.As for my take on all of this? As mentioned up top, I think this is a worthwhile experiment, though I've long doubted it would have that big of an impact on Facebook itself. I see no reason to change my opinion on that yet, but I am surprised at the thoroughness of these initial decisions and how far they go in pushing back on certain Facebook policies. I guess I'd update my opinion to say I've moved from thinking the Oversight Board had a 20% chance of having a meaningful impact, to now it being maybe 25 to 30% likely. Some will cynically argue that this is all for show, and the first cases had to be like that. And perhaps that's true. I guess that's why no one is forced to set their opinion in stone just yet, and we'll have plenty of time to adjust as more decisions come out.

Five years or so ago, 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 spent years bullying independent repair shops and demonizing consumers who simply want to reduce waste and repair devices they own.Fast forward to 2021, and roughly fourteen different states are all considering pending right to repair legislation that would put power back in the hands of consumers and independent repair shops. Some states, like Montana, are considering different types of legislation that would cover both consumer hardware and agricultural equipment.COVID is also pouring some gasoline on this fire, highlighting how manufacturers frequently enjoy a stranglehold over tools, documentation, and replacement parts, which can literally put human lives at risk by causing repair delays:

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Former Senator Joe Lieberman was a ridiculous censorial problem when he was a Senator. Back in the early days of social media, when the first questions of content moderation were first gaining attention, Lieberman was perhaps the original moral panic Senator, demanding censorship of 1st Amendment protected content. It started back in 2008, when he sent an angry letter to YouTube, saying that they had to take down "terrorist content." YouTube reviewed a bunch of the links he sent, and removed only the ones that violated YouTube's policies. That made Lieberman mad and he sent a second letter demanding that the company take down "terrorist" videos. He also did the same thing to Twitter. Because of the political pressure, these companies became more aggressive, leading them to... take down a human rights watchdog that was documenting war crimes. Because sometimes "terrorist videos" are actually... "documenting war crimes."A smarter person might step back and realize that there's a lot of nuance here, and what seems "easy" may be a bit more complex. But not old Joe Lieberman. Instead, he ramped up his desire to censor. He demanded Amazon stop hosting Wikileaks, and ordered Google to add a "this blog is run by a terrorist" button to all Blogger blogs. He also tried to expand the Espionage Act to cover journalists who publish leaked information.So perhaps it's not surprising that when CBS News asked Lieberman to come on with Major Garrett and discuss Section 230 and content moderation, Lieberman immediately jumped to "they should get rid of 230" and censor more nonsense. Major Garrett kicks the conversation off with... a total misrepresentation of Section 230.