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All of these statements can be true:

At the beginning of his term, President Trump promised he'd turn regular America into police-loving America:

Sign up for the Public Domain Game Jam on itch.io »The clock is ticking — we're past the halfway point of January, and you've got just under two weeks to submit something for Gaming Like It's 1925! We're looking for analog and digital games that are inspired by and/or make direct use of materials from works published in 1925, which have now entered the public domain, and giving away prizes for the best ones in multiple categories.Check out the game jam page for the full rules and some links to public domain works you could draw on, as well as game design tools for designers of all experience levels. The jam runs until January 31st and then our judges will begin playing the entries to select winners in six categories. The winners will be able to choose one of or great prizes:

This week, our first place winner on the insightful side is Bloof with a response to a silly comment on one of our posts about Parler:

Five Years AgoThis week in 2016, the world was responding to the death of David Bowie, and we looked back on his innovation in music business models, and then noted how copyright limited the ability to pay tribute to Bowie on the radio. Obama used his final state of the union address to both praise and complain about the open internet, while New York's District Attorney was calling for a ban on the sale of encrypted smartphones. The movie industry was once again reporting record box office numbers despite their complaints about piracy, with even leaked films raking in record-breaking cash, and Netflix was still in its don't-try-to-stop-password-sharing phase while NBC was still in its Netflix is not a threat phase. Plus, lest we forget battles over content moderation have been going on for a long time and can touch all kinds of industries, Lego backed down after blocking people from buying blocks for political projects.Ten Years AgoFive years before that in 2011, other content moderation and liability debates were raging — especially in the lawsuit against Backpage. We also saw the beginning of a major fight between Sony and George Hotz, who jailbroke PS3s to restore their ability to run different operating systems. Meanwhile, we were learning more about the government's attempts to get info from Twitter for the Wikileaks investigation (and were pleased to see the social network fighting back, while wondering who else the government might have targeted). Customs officers were trying to intimidate Wikileaks volunteers, Rep. Peter King tried to have Wikileaks put on the Treasury Department's terrorist list (the Treasury thankfully refused), and the EFF debunked the myth that the leaked cables weren't important. Meanwhile, Congress was continuing its annual traditions of promising patent reform that would never come and promising a Patriot Act renewal that very much would.Fifteen Years AgoThis week in 2006 we saw the appearance of the first Apple computers with Intel chips, and the launch of the much-hyped Google Video offering that turned out to be completely underwhelming (and not just because of its embrace of copy protection). Sony was still trying to downplay its rootkit scandal while we talked about whether DRM will always introduce security problems, and while the use of copy protection continued to screw over actual creators.

I've delayed writing deeper thoughts on the total deplatforming of Parler, in part because there was so much else happening (including some more timely posts about Parler's lawsuit regarding it), but more importantly because for years I've been calling for people to think more deeply about content moderation at the infrastructure layer, rather than at the edge. Because those issues are much more complicated than the usual content moderation debates.And once again I'm going to make the mistake of offering a nuanced argument on the internet. I urge you to read through this entire post, resist any kneejerk responses, and consider the larger issues. In fact, when I started to write this post, I thought it was going to argue that the moves against Parler, while legal, were actually a mistake and something to be concerned about. But as I explored the arguments, I simply couldn't justify any of them. Upon inspection, they all fell apart. And so I think I'll return to my initial stance that the companies are free to make decisions here. There should be concern, however, when regulators and policymakers start talking about content moderation at the infrastructure layer.The "too long, didn't read" version of this argument (and again, please try to understand the nuance) is that even though Parler is currently down, it's not due to a single company having total control over the market. There are alternatives. And while it appears that Parler is having difficulty finding any such alternative to work with it, that's the nature of a free market. If you are so toxic that companies don't want to do business with you, that's on you. Not them.It is possible to feel somewhat conflicted over this. I initially felt uncomfortable with Amazon removing Parler from AWS hosting, effectively shutting down the service, and with Apple removing its app from the app store, effectively barring it from iPhones. In both cases, those seemed like very big guns that weren't narrowly targeted. I was less concerned about Google's similar removal, because that didn't block Parler from Android phones, since you don't have to go through Google to get on an Android phone. But (and this is important) I think all three moves are clearly legal and reasonable steps for the companies to take. As I explored each issue, I kept coming back to a simple point: the problems Parler is currently facing are due to its own actions and the unwillingness of companies to associate with an operation so toxic. That's the free market.If Parler's situation was caused by government pressure or because there were no other options for the company, then I would be a lot more concerned. But that does not appear to be the case.The internet infrastructure stack is represented in different ways, and there's no one definitive model. But an easy way to think of it is that there are "edge" providers -- the websites you interact with directly -- and then there's everything beneath them: the Content Delivery Networks (CDNs) that help route traffic, the hosting companies/data centers/cloud providers that host the actual content, the broadband/network/access providers, and the domain registers and registrars that help handle the naming and routing setup. And there are lots of other players in there as well, some (like advertising and certain communications providers) with elements on the edge and elements deeper in the stack.But a key thing to understand is the level of granularity with which different players can moderate, and the overall impact their moderation can have. It's one thing for Twitter to remove a tweet. It's another thing for Comcast to say "you can't access the internet at all." The consequences of moderation get much more severe the deeper you go into the stack. In this case, AWS's only real option for Parler was to remove the entire service, because it couldn't just target the problematic content (of which there was quite a lot). As for the app stores, it's a tricky question. Are app stores infrastructure, or edge? Perhaps they are a little of both, but they had the same limited options: remove the app entirely, or leave it up with all its content intact.For many years, we've talked about the risks of saying that players deeper in the infrastructure stack should be responsible for content moderation. I was concerned, back in 2014, when there was talk of putting liability on domain registrars if domains they had registered were used for websites that broke the law. There have been a few efforts to hold such players responsible as if they were the actual lawbreakers, and that obviously creates all sorts of problems, especially at the 1st Amendment level. As you move deeper into the stack, the moderation options look less like scalpels and more like sledgehammers that remove entire websites from existence.Almost exactly a decade ago, in a situation that has some parallels to what's happened now, I highlighted concerns about Amazon deciding to deplatform Wikileaks in response to angry demands from then Senator Joe Lieberman. I found that to be highly problematic, and likely unconstitutional -- though Wikileaks, without a US presence, had little standing to challenge it at the time. My concern was less with Amazon's decision, and more with Lieberman's pressure.But it's important to go back to first principles in thinking through these issues. It's quite clear that companies like Amazon, Apple, and Google have every legal right to remove services they don't want to associate with, and there are a ton of reasons why people and companies might not want to associate with Parler. But many people are concerned about the takedowns based on the idea that Parler might be "totally" deplatformed, and that one company saying "we don't want you here" could leave them with no other options. That's not so much a content moderation question, as a competition one.If it's a competition question, then I don't see why Amazon's decision is really a problem either. AWS only has 32% marketshare. There are many other options out there -- including the Trump-friendly cloud services of Oracle, which promotes how easy it is to switch from AWS on its own website. Oracle's cloud already hosts Zoom (and now TikTok's US services). There's no reason they can't also host Parler.*But, at least according to Parler, it has been having trouble finding an alternative that will host it. And on that front it's difficult to feel sympathy. Any business has to build relationships with other businesses to survive, and if no other businesses want to work with you, you might go out of business. Landlords might not want to rent to troublesome tenants. Fashion houses might choose not to buy from factories with exploitative labor practices. Businesses police each other's business practices all the time, and if you're so toxic that no one wants to touch you... at some point, maybe that's on you, Parler.The situation with Apple and Google is slightly different, and again, there are lots of nuances to consider. With Apple, obviously, it is controlling access to its own hardware, the iPhone. And there's a reasonable argument to be made that Apple offers the complete package, and part of that deal is that you can only add apps through its app store. Apple has long argued that it does this to keep the phone secure, though it could raise some anti-competitive concerns as well. But Apple has banned plenty of apps in the past (including Parler competitor Gab). And that's part of the nature of iPhone ownership. And, really, there is a way to route around Apple's app store: you can still create web apps that will work on iOS without going through the store. This does limit functionality and the ability to reach deeper into the iPhone for certain features, but those are the tradeoffs.With Google, it seems like there should be even less concern. Not only could Parler work as a web app, Google does allow you to sideload apps without using the Google Play store. So the limitation was simply that Google didn't want the app in its own store. Indeed, before Amazon took all of Parler down, the company was promoting its own APK to sideload on Android phones.In the end, it's tough to argue that this is as worrisome as my initial gut reaction said. I am still concerned about content moderation when it reaches the infrastructure layer. I am quite concerned that people aren't thinking through the kind of governance questions raised by these sledgehammer-not-scalpel decisions. But when exploring each of the issues as it relates to Parler specifically, it's hard to find anything to be that directly concerned about. There are, mostly, alternatives available for Parler. And in the one area that there apparently aren't (cloud hosting) it seems to be less because AWS has market power, and more because lots of companies just don't want to associate with Parler.And that is basically the free market telling Parler to get its act together.* It's noteworthy that AWS customers can easily migrate to Oracle Cloud only because Oracle copied AWS's API without permission which, according to its own lawyers is copyright infringement. Never expect Oracle to not be hypocritical.

Summary: US companies obviously need to obey US laws, but dealing with demands from foreign governments can present challenging dilemmas. The Sarawak Report, a London-based investigative journalism operation that reports on issues and corruption in Malaysia, was banned by the Malaysian government in the summer of 2015. The publication chose to republish its own articles on the US-based Medium.com website (beyond its own website) in an effort to get around the Malaysian ban.In January of 2016, the Sarawak Report had an article about Najib Razak, then prime minister of Malaysia, entitled: “Najib Negotiates His Exit BUT He Wants Safe Passage AND All The Money!” related to allegations of corruption that were first published in the Wall Street Journal, regarding money flows from the state owned 1MDB investment firm.The Malaysian government sent Medium a letter demanding that the article be taken down. The letter claimed that the article contained false information and that it violated Section 233 of the Communications and Multimedia Act, a 1998 law that prohibits the sharing of offensive and menacing content. In response, Medium requested further evidence of what was false in the article.Rather than responding to Medium’s request for the full “content assessment” from the Malaysian Communications and Multimedia Commission (MCMC), the MCMC instructed all Malaysian ISPs to block all of Medium throughout Malaysia.Decisions to be made by Medium:

Another day, another location data scandal we probably won't do anything about.Joseph Cox, a one-man wrecking ball on the location data privacy beat the last few years, has revealed how a popular Muslim prayer app has been collecting and selling granular user location data without those users' informed consent. Like so many apps, Salaat First (Prayer Times), which reminds Muslims when to pray, has been recording and selling detailed daily activity data to a third party data broker named Predicio. Predicio, in turn, has been linked to a supply chain of government partners including ICE, Customs and Border Protection, and the FBI.As usual, users aren't clearly informed that their every waking movement is being monetized on a massive scale, something that concerned an anonymous source familiar with Salaat First's business model:

It's not just Ajit Pai who is an FCC chair who misunderstands Section 230. His predecessor, Tom Wheeler continues to get it totally wrong as well. A year ago, we highlighted Wheeler's complete confusion over Section 230, that blamed Section 230 for all sorts of things... that had nothing at all to do with Section 230. I was told by some people that they had talked to Wheeler and explained to him some of the mistakes in his original piece, but it appears that they did not stick.This week he published another bizarre and misguided attack on Section 230 that gets a bunch of basic stuff absolutely wrong. What's weird is that in the last article we pointed to, Wheeler insisted that social media websites do no moderation, because of 230. But in this one, he's now noting that 230 allowed them to close down the accounts of Donald Trump and some other insurrectionists -- but he's upset that it came too late.

Nintendo has built quite a reputation for itself as an intellectual property protectionist, going much further than most other game publishers to exert strict control over all of its IP. While this control is deployed in a wide-ranging manner, one of the most visible, common, and consequential avenues for this protectionism comes in the form of Nintendo getting all manner of fan-made creations taken down. These games, almost universally created by huge Nintendo fans as labors of love, are nearly always the subject of DMCA takedowns. Think for just a moment what that means: Nintendo is disallowing, on the regular, the expression of fandom by its own customers.Every time I have written a post about some individual game being erased in this manner, rather than Nintendo exploring how to officially endorse these fan-made creations so as to protect its IP while still promoting its own fans, it's left me scratching my head. But now that Nintendo has managed to get hundreds of fan-games taken down in one fell swoop, well, it seems the company has decided to take this war on its own fans to another level.

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I'm beginning to see where Josh Hawley got his totally nutty ideas about the 1st Amendment. The Wall Street Journal has an utterly insane piece by Yale Law professor Jed Rubenfeld -- currently suspended due to sexual harassment claims, and who was infamously quoted telling prospective law clerks for then Judge Brett Kavanaugh, that Kavanugh "hires women with a certain look" -- and a... um... biotech executive named Vivek Ramaswami who is mad about "woke" companies, insisting (wrongly) that the big internet companies are actually part of the US government and therefore have to abide by the 1st Amendment in their content moderation practices.Honestly, the level of thinking here is on par with your typical Breitbart commenter, not a well known (if slightly disgraced) Yale Law professor.

For decades now a growing number of US towns and cities have been forced into the broadband business thanks to US telecom market failure. Frustrated by high prices, lack of competition, spotty coverage, and terrible customer service, some 750 US towns and cities have explored some kind of community broadband option. And while the telecom industry routinely likes to insist these efforts always end in disaster, that's never actually been true. While there certainly are bad business plans and bad leaders, studies routinely show that such services not only see the kind of customer satisfaction scores that are alien to large private ISPs, they frequently offer better service at lower, more transparent pricing than many private providers.The latest case in point: Ars Technica profiles one Michigan resident who had to build his own ISP from scratch after "the market" couldn't be bothered to service his address with anything even close to current generation broadband speeds:

While we had covered the rise and growth of esports for several years now, readers here will recognize that 2020 became something of an inflection point for the industry. The reasons for this are fairly obvious: the cultural shutdown at the onset of the COVID-19 pandemic -- one that shuttered nearly all IRL athletic competition -- left a vacuum for viewership of competition that esports was almost perfectly situated to gobble up. Viewership exploded, as did the number of esports events. Meanwhile, the trend for IRL sports leagues, teams, and associated industries investing in esports ramped up considerably.But now 2020 is, thankfully, behind us. And, while the world is still mired in dealing with COVID-19, IRL sports have largely come back. At the onset of 2021, now is the perfect time to ask two questions: what was the actual growth of esports in 2020 and what will it mean when the world begins to go back to a semblance of normalcy over the next year? Well, the numbers are out and they are quite impressive. The following comes from analysts at Engine Media, via its analyst experts at Stream Hatchet.

It appears that Parler's antitrust lawsuit against Amazon for suspending its AWS account isn't off to a very good start. In an emergency hearing on Thursday to see whether or not the judge would order Amazon to turn AWS back on for Parler, the judge declined to do so:

Parler, Parler, Parler, Parler. Back in June of last year when Parler was getting lots of attention for being the new kid on the social media scene with a weird (and legally nonsensical) claim that it would only moderate "based on the 1st Amendment and the FCC" we noted just how absolutely naive this was, and how the company would have to moderate and would also have to face the same kinds of impossible content moderation choices that every other website eventually faces. In fact, we noted that the company (in part due to its influx of users) was seemingly speedrunning the content moderation learning curve.Lots of idealistic, but incredibly naive, website founders jump into the scene and insist that, in the name of free speech they won't moderate anything. But every one of them quickly learns that's impossible. Sometimes that's because the law requires you to moderate certain content. More often, it's because you recognize that without any moderation, your website becomes unusable. It fills up with garbage, spam, harassment, abuse and more. And when that happens, it becomes unusable by normal people, drives away many, many users, and certainly drives away any potential advertisers. And, finally, in such an unusable state it may drive away vendors -- like your hosting company that doesn't want to deal with you any more.And, as we noted, Parler's claims not to moderate were always a part of the big lie. The company absolutely moderated, and the CEO even bragged to a reporter about banning "leftist trolls." The whole "we're the free speech platform" was little more than a marketing ploy to attract trolls and assholes, with a side helping of "we don't want to invest in content moderation" like every other site has to.Of course, as the details have come out in the Amazon suit, the company did do some moderation. Just slowly and badly. Last week, the company admitted that it had taken down posts from wacky lawyer L. Lin Wood in which he called for VP Mike Pence to face "firing squads."Amazon showed, quite clearly, that it gave Parler time to set up a real content moderation program, but the company blew it off. But now, recognizing it has to do something, Parler continues to completely reinvent all the mistakes of every social media platform that has come before it. Parler's CEO, John Matze, is now saying it will come back with "algorithmic" content moderation. This was in an interview done on Fox News, of course.

We write a lot about defamation suits here at Techdirt. Most of what we cover are baseless lawsuits -- lawsuits featuring powerful people "punching down" in hopes of silencing critics.But this case is on a more equitable level. As the election results rolled in last November, the Trump Administration maintained the election had been "stolen." The fantasies of the lame duck were encouraged and enabled by lawyers who should have known better. This includes Rudy Giuliani -- self-proclaimed 9/11 hero and all-around evidence that satire is dead.One of Trump's lawyers went on the warpath. Sidney Powell -- one-time legal counsel to the President -- sued as early and often as possible, hoping to get key election results thrown out. The evidence the so-called "Kraken" brought with her wasn't really evidence of anything. It made "hearsay and conjecture" seem like a solid basis for a lawsuit. What Powell brought with her was a combination of sovereign citizen fanfic and anthropomorphized YouTube videos.Trump cut ties with Powell -- perhaps considering her too far out there for even his OAN-enabled fever dreams. She went on without him, ensuring taxpayers would keep paying to defend the Republic against wild fantasies of widespread voter fraud and election machinery interference.Powell targeted Dominion Voting Systems early and often, apparently only because they were deployed in Georgia -- a state Trump lost that he did not expect to lose. Georgia has a problem with election security, but for years, elected officials have chosen to attack Democrats and bury negative info rather than address these problems.Powell's lawsuits aren't going to make voting in Georgia any more secure. But they may carve some holes in Powell's bank accounts. Dominion Voting Systems isn't happy with Powell's assertions about its products. After weeks of being publicly reamed by Trump and his litigious supporters, Dominion is fighting back.

While Twitter is opening up to have the difficult conversation about how content moderation and the open internet should co-exist at a time when the President of the US has inspired an insurrection, Facebook, perhaps not surprisingly, has taken another approach. It's one that is condescendingly stupid, and simultaneously self-serving.Sheryl Sandberg went public to say both that most of the planning for the invasion of the Capitol was not done on Facebook, and that only Facebook was big enough to prevent such things from happening.

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Last Friday, Twitter made the decision to permanently ban Donald Trump from its platform, which I wrote about at the time, explaining that it's not an easy decision, but neither is it an unreasonable one. On Wednesday, Jack Dorsey put out an interesting Twitter thread in which he discusses some of the difficulty in making such a decision. This is good to see. So much of the content moderation debate often is told in black and white terms, in which many people act as if one answer is "obvious" and any other thing is crazy. And part of the reason for that is many of these decisions are made behind close doors, and no one outside gets to see the debates, or how much the people within the company explore the trade-offs and nuances inherent in one of these decisions.Jack doesn't go into that much detail, but enough to explain that the company felt that, given the wider context of everything that happened last week, it absolutely made sense to put in place the ban now, even as the company's general stance and philosophy has always pushed back on such an approach. In short, context matters:

House lawmakers say that telecom giants are exploiting a national health and economic crisis to make an extra buck.The subject of their ire are broadband usage caps, which we've long made very clear are little more than price gouging of captive customers in uncompetitive US broadband markets. Such restrictions don't manage congestion, aren't technically necessary, and serve no financial function outside of price gouging, given flat rate broadband is already hugely profitable, and "heavy" users can already be bumped to business class tiers.Broadband caps are a monopolistic toll on captive customers. And while the Trump FCC struck a temporary pinky swear agreement with ISPs to suspend them during the first few months of the pandemic (which many ignored), ISPs like Comcast and AT&T were not only quick to return to the punitive charges, some ISPs like Comcast actively expanded them. Sure, millions of Americans are struggling to pay for essential services and rent, but monopolies are always going to monopolize unless they face one of two things: penalties via competition, or penalties via functional regulators. The US broadband sector has neither.Regulators inclined to look away from the problem of US telecom monopolization in normal times have found it harder to do so via COVID, even if that usually doesn't result in any serious repercussions. This week, House Energy & Commerce Committee members Reps. Frank Pallone, Jr, Mike Doyle, and Jerry McNerney lambasted companies like Comcast for doubling down on their greedy bullshit during an economic crisis:

Nintendo, of course, has an impressively long history of being IP protectionist in the extreme. But if there is one thing that Nintendo really cannot stand, it's when its own fans choose to express their fandom with art and creativity. Cool ways to use Animal Crossing? Nintendo shut it down. Dedicated gamers porting an antique Mario title to the PC? Nintendo shut it down. Fan game, after fan game, after fan game? Nintendo shut those down too. In other words, the impression you're left with is that fan creations using anything remotely close to Nintendo IP is the devil's work in the eyes of the company.Except, perhaps, when the company would like to use some of that work without permission or giving credit to the artist, it seems.

Summary: Running a site that relies on third-party content means having to deal with the underside of human existence. While most people engage in good faith, a small minority of people engage with the sole purpose of disparaging others.Yelp is no exception. Designed to provide potential customers with useful information about goods and services, the site's popularity lent itself to brigading (negative reviews delivered en masse in response to current outrages) and the lowest common denominators of the general public: bigots.The potential to ruin a business's reputation over their views on immigration policy, their employment of minorities, or other perceived slights made it possible for the most-respected review site to be weaponized by racists.Yelp recognized this inevitability. Moderators patrol the site to limit the spread of bigoted content that skew review scores based on the racist predilections of reviewers.

Cops have a "tell." It's so obvious and yet they still pretend it isn't. Whenever something questionable goes down, all anyone has to do is ask for the recordings.If the recording exonerates cops (or at least makes it a close call in their favor), law enforcement agencies will release the footage, often without anyone asking for it. If there might be rights violations or a questionable killing, cops will delay or deny the release of footage. In some cases, no footage is recorded at all. In others, the footage will go missing.This "tell" is highlighted in a recent ACLU post, which compares the responsiveness of two law enforcement agencies. The one that can't immediately justify officers' actions chose to withhold, asserting a bunch of stipulations, policies, and public records exceptions to justify its lack of transparency.The other chose to proactively release footage in hopes of talking the public into supporting its controversial actions by showing everything wasn't nearly as awful as the high-profile warrant target would make it seem.First, we have the footage that exonerates law enforcement officers. Earlier this month, Florida law enforcement raided the house of a COVID whistleblower -- a former government employee who was kicked to the curb when COVID stats failed to match the state governor's "EVERYTHING IS FINE" pronouncements. The whistleblower claimed cops pointed guns at her children and otherwise acted excessively given the nature of the charges.And this remains true, despite the proactive body cam footage release. Cops with guns raided a house over allegations that some hacking had occurred. In reality, the situation was much more muddy, involving a state government system that allowed people to share a password and a supposedly threatening message. When computer crime is responded to by officers with guns and the authorization to use deadly force, things are a bit fucked up. Yes, law enforcement is there to enforce laws, but keyboard warriors use keyboards, not guns. Entering a house with guns drawn drastically overestimates the "danger" officers are facing.After being excoriated in the press and on social media, the law enforcement agency decided to clear the air. But DO NOT CONGRATULATE. This "transparency" had a clear goal -- and that goal wasn't to place the agency on the top of the transparency charts.

As you may have heard, over the weekend Amazon removed Parler from its AWS cloud hosting services, causing the website to shut down. I've been working on a longer piece about all of this, but in the meantime, I did want to write about the laughably bad antitrust lawsuit that Parler filed against Amazon in response. Notably, this came just days after Parler's CEO claims that his own lawyers quit (would these be the same "lawyers" who stupidly advised that the company doesn't need Section 230?). Instead, they found a small time independent practitioner who doesn't even have a website* to file what may be the silliest antitrust lawsuit I've seen in a long time. It's so bad that by the end of it, Parler may very well be paying Amazon a lot of money.There are so many other things I'd rather be writing about, so I'll just highlight a few of the problems with Parler's very bad, no good, horrible, stupidly ridiculous lawsuit. If you want more, I recommend reading Twitter threads by Akiva Cohen or Neil Chilson or Berin Szoka or basically any lawyer with any amount of basic knowledge of antitrust law. The lawsuit is dumb and bad and it's going to do more harm to Parler than good.The key part of the lawsuit is that Parler, without evidence, claims that Amazon had "political animus" against it, and that it conspired with Twitter to shut down a competitor. It provides no proof of either thing, and... even if it did show proof of political animus, that's... not against the law. And that's kind of a big deal. They're basically saying it's an antitrust violation to dislike Parler. Which it's not. But even if it were, they are simply making up false reasons for why AWS booted Parler.

Proving that 2020 wasn't done with us yet, January 6, 2021 added a new horror to the long list of things that showed "may you live in interesting times" is a curse, rather than a blessing. Urged on by the guy less than ten days away from being escorted from the premises by security and his favorite legal advocate -- one that advocated for "trial by combat" over the election results -- Trump supporters invaded Washington, DC, hoping to somehow nullify the election through intimidation and violence.This violent debacle (and it was violent -- five people dead and two explosive devices recovered) has resulted in a lot of backlash. The most immediate backlash will be felt by some of the red-hatted crowd that broke into the Capitol building in hopes of preventing election certification. An executive order signed by Trump -- one targeting "violent, left-wing extremists" -- will instead be used to enhance the prison sentences of violent, right-wing extremists. Perhaps the worst president in history will exit the office with his supporters feeling the brunt of this incredible self-own. MAGA, indeed.But it's back to business as usual, now that things have settled down. An attack on the election process has resulted in calls for action. And calls for action prompted by singular events with almost no chance of being repeated almost always result in things being made worse for millions of citizens who did nothing more than watch in horror as events unfolded.The 9/11 attacks resulted in an expansion of the surveillance state. The tragic attack was leveraged to take power away from the people and give it to their government instead. The same thing appears to be happening now, with President-elect Joe Biden demanding a War on (Domestic) Terrorism. And other legislators are demanding more be done now, ignoring the dire repercussions of their demands in favor of inflicting pain on people who didn't vote for them. (h/t Sam Mintz)Flight attendants felt disturbed by the presence of Capitol Hill invaders on flights out of DC. This is fine. And, as private companies, airlines can certainly refuse to allow certain people to board their planes. But this private objection is being made public, courtesy of Rep. Bennie G. Thompson, the Chairman of the Homeland Security Committee. He wants these private complaints to become public by adding alleged "insurrectionists" to the incredibly expansive no-fly lists maintained by the federal government.

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Many of us watched in horror as Trump supporters -- encouraged by the outgoing President's insinuation that a "stolen" election could be overturned if VP Mike Pence was prevented from certifying election results -- raided the Capitol building in Washington, DC. What may have started as simple MAGA stupidity ended with five people dead and two improvised explosive devices recovered. Welcome to Leroy Jenkinsville, USA.Invading federal buildings is a serious federal offense. That's why Trump sent federal officers to Portland -- officers that spent a lot of time shooting and pepper spraying journalists and legal observers. There was a lot of irony contained in the Capitol invasion by Trump supporters -- ones who feel the government can do no wrong when their boy is in charge but cannot be trusted the moment the guy up top is replaced.But the most painful irony still lies ahead. An executive order from Trump signed in June was meant to target "anarchists and left wing extremists" who tore down monuments to Confederate "heroes" and otherwise menaced federal property. Now, it looks like the latest citizens to be hit with sentence enhancements will be the same people who cheered on this open targeting of people whose views were diametrically opposed to Trump's. "Fullest extent of the law" -- as ordered in the Presidential edict -- means pursuing maximum sentences for attacking federal property.As horrifying as all of that was, the worst may lie ahead. The incoming president is threatening to turn January 6th into the next 9/11. (h/t Jameel Jaffer)

Outside from perhaps military contractors, you'd be pretty hard pressed to find a US business sector that benefitted more from Trumpism that the telecom sector. AT&T nabbed a $42 billion tax break in exchange for roughly 42,000 layoffs and a reduction in network investment. T-Mobile, after hiring Corey Lewandowski and throwing money at Trump's DC hotel, nabbed approval for a Sprint merger most objective experts warned would result in tens of thousands of job losses, less competition, and higher prices. And telecom giants convinced the Trump FCC to effectively lobotomize its consumer protection authority.The telecom industry also managed to kill net neutrality, neuter local municipalities' abilities to stand up to wireless giants in negotiation, and kill some modest FCC broadband privacy rules before they could even take effect. Topping that off, the telecom sector spent several years convincing the lion's share of DC that "big tech" is the only real monopolistic threat in America, resulting in the entirety of our regulatory and antitrust enforcement being fixated on Silicon Valley while giving telecom (natural monopolies with a thirty year track record of anti-consumer, anticompetitive behavior) a complete pass.All in all, that's a pretty good haul in a four year span. And I omitted a lot of unidirectional regulatory favors for fear of boring you.Throughout this period, telecom giants were happy to look the other way as brown-skinned kids were locked in cages, bigotry was used as a political bludgeon, racism flourished, rampant corruption ballooned, and the country descended into chaos at the every whim of an idiot king. Only now, that public opposition has ballooned in the wake of Trump supporters beating a cop to death, has the industry had enough. And by "enough," we mean temporarily suspending select PAC spending for a few weeks until the outrage dies down:

Last month, we discussed a crazy lawsuit brought by Alan Rupp, owner of Kern's Kitchen and the trademark for the fairly famous "Derby Pie." Rupp has a reputation for policing his trademark aggressively, having gone after a myriad of online publications and blogs for publishing their own recipes, leading to the EFF at one point posting its own recipe for a "censorship pie."But threatening blogs is one thing. Going after an established newspaper like the Louisville Courier-Journal is something quite different. Especially when that paper's only actions were, (1) publishing its own recipe for a "derby pie" that differed from that of Kern's Kitchen and, (2) reporting on the existence of other storefronts that sold derby-pie-flavored things. The paper had very clear First Amendment protections for its writings, not to mention that it wasn't using the mark in any kind of commerce. The courts have now agreed, with the latest appeal being tossed.

There's a warrant requirement for cellphone searches, thanks to the Supreme Court's Riley decision. But not every search is, um, warranted, even when officers have a search warrant in hand.A case [PDF] recently handled by the Fifth Circuit Court of Appeals makes this point clearly and effectively. It's the "effective" part that matters the most. A search that went outside the boundaries of the affidavit's stated purpose has resulted in a vacated child porn conviction.It all started with a traffic stop -- one that first led officers to believe they'd made a drug bust.

Lots of folks are reporting on the news that German Chancellor Angela Merkel has now said that she finds Twitter's decision to ban Donald Trump "problematic."

BackgroundFirst of all, corporationsenjoy First Amendment protections, among other constitutionalprotections. Although some of my friends decry that proposition,given the Supreme Court's current composition, that is notgoing to change during my lifetime. And the First Amendment protectsthe right to refuse to associate with speech one does not like. There is only so much that legislation could do to prevent companieslike Twitter from controlling the speech that they allow.Second, withdrawing oradapting the section 230 liability shieldis one way to impose limits on platform's adoption orimplementation of their content control policies, perhaps, but thereis no reason to think that any withdrawal that is likely to pass, andthat would be constitutional (because it does not involve viewpointdiscrimination), would be better than the current state of affairs. Moreover, that would be a very blunt instrument that could not easilybe calibrated. I strongly support the principles of section 230,which allow online platforms to decide what speech they will allow ontheir platforms by protecting them against liability for speech thatthey carry (with very limited exceptions). They are not commoncarriers, like USPS or the PSTN’s. (Thus, Apple and Googlecould cabin Parler by threatening to deny it access to the App andPlay Stores, and Amazon could deny Parler web hosting services, allon the ground that Parler failed to successfully enforce rulesagainst advocacy of political violence. I find it mind-boggling thatpeople who call themselves “conservative” are railingabout the plug being pulled on a platform for the stated reason thatit allegedly fails to block calls for political violence). And theyare not government bodies, which are (largely) forbidden to engage incontent discrimination, and especially viewpoint discrimination, inallowing or suppressing speech. Section 230, both as a legalprinciple but also as a social principle, not only allows platformsto tolerate speech that I find abhorrent, but also allows them toexclude speech that I detest, or speech that I adore.Third, the drafters of section230 recognized that platforms would have content policies, andconsidered it desirablefor them to have content policies. Indeed, you can’t run aplatform without content policies. Anybody who has ever tried tomoderate a discussion group will fully appreciate theseconsiderations. And content moderation is HARD. The periodic “COMO”sessions addressing “Content Moderation at Scale”explored the difficulties through a series of hypotheticals. Whatbecame clear is that people of good will, even those with relativelycommon policy perspectives, trying to apply even the best of contentpolicies, will get it wrong sometimes – and that is even ifthey have lots of time to evaluate a single statement.It is inevitable thatdifferent platforms will take different stances about what speechthey will tolerate and what speech they will exclude—in partbecause of the audiences at which they aim.The Reasons for BanningTrumpTurning to Twitter, and toTrump in particular: Twitter has for many years had a variety ofrules about speech that may and may not be posted to Twitter, whichthey call their trust and safety guidelines. This includes a ban onspeech glorifying or promoting violence; it also includes a ban onfalse statements about the election. (Many years ago I was asked ifI would be willing to be on their outside trust and safety council; Idecided it would not be appropriate for me to do that for a number ofreasons).I have never been a fan ofsocial media companies trying to assess the truth or falsity offactual statements, or the hurtfulness of opinions and rhetoricdeployed there. The assumption of such a role is likely to lead tothe suppression of voices that criticize the rich and powerful (thatis, those who can afford to hire lawyers to file baseless lawsuits,or who can deploy government power to attack their critics), or onabusive law enforcement officials themselves. But Trump’smisuse of Twitter and other platforms to foment a violent attack ondemocratic elections has taken matters to another level.In the weeks leading up to theattack by a mob of Trump supporters on the Congress, Trump used bothtweets and other public communications to try to steal the electionfrom his victorious opponents. At the same time, he tried to use hisconnections with officials in several states where he had lost toinduce them to overturn his losses in those states. Then, with hiscampaign of frivolous litigation and threats to state electionofficials having come to naught, he and his mouthpieces escalatedheir attack on democratic elections, encouraging his supporters toengage in a physical confrontation with members of Congress in anapparent effort to delay the certification of his electoral collegeloss. There is every reason to believe that many of the supporterswho tried to storm the Capitol believed that they were acting atTrump’s behest,and some analyses suggestthat Trump’s language was carefully calculated to encourage thesupporters to use violence. My reading of the language leads me toconclude that the calls for violence were insufficiently expressed tomake them indictable under the standards set forth in Brandenburgv. Ohio, 395 U.S.444 (1969),just as my view is that his threats to Georgia state electionofficials, on a recording,fell short of criminal threats or incitement.Assuming, as I do, Trumpcannot be held legally responsible for inciting the riot, he wasstill morally responsible for it. And even assuming, as I do, thathe cannot be convicted for these communications, that doesn’tmean that a private company, unbound by First Amendment standards,would be unjustified in deeming them a gross violation of itspolicies against advocating or glorifying violence, and hencetreating them as a proper basis for denying him a platform. Platforms are expected to withdraw the accounts of members of thepublic who repeatedly abuse their access to infringecopyright—indeed, the DMCA gives them a powerful legalincentive to do so. (In my legal practice, I have had to deal withweb hosting services that were considering removal ofconsumer-friendly platforms that were receiving bogus claims othat myclients were hosting defamation or other tortious speech. Despitetheir section 230 protection, they often simply did not want to dealwith the trouble).In that context, it is nosurprise that a platform cancelled the account of a politician whorepeatedly abused his access to foment a riot. And Trump, after all,is wealthy enough, and remains powerful enough, to use other means toamplify his speech. Indeed, he has one mainstream news channel andseveral smaller ones that are dying to carry his speech.But, at the same time, Twitterhas allowed exceptions to those rules, and one very prominentexception is that senior government officials, particularly heads ofstate, are given more leeway on the theory that there is publicinterest in letting the public know what such people are saying. As apractical matter, Trump has had almost complete immunity from thesorts of restrictions that constrained other Twitter users. Much ofwhat he has posted was a gross violation of Twitter’s rules,but he was allowed to get away with it. Note that Trump’s holdon the special exception is due to expire on January 20.What I think has reallyhappened is that, for a variety of reasons, Twitter decided to takeaway Trump’s special exception, and his ban — based on arange of past conduct — was the inevitable result of thatchange of position. Twitter has both taken away the specialexception a few days early, and made its decision retroactive. Considering the way in which Trump managed to use his bully pulpit toincite a violent attack on Congress that was aimed at overturning ademocratic election in which he was defeated, that seems to me to bewithin the range of understandable reaction.Twitter’s ObfuscationBut the reasonsthat Twitter gavefor its decision strike me as laughable – recall he wassuspended for 24 hours, then allowed back on the condition that hedelete certain tweets and stop violating the rules. He did deletethe tweets in question, and to my mind nothing he did after beingreinstated violated their rules. He gave appearance of trying tosatisfy them.Twitter’s blog postexplaining the Trump ban,asserted that two Trump tweets violated their rules againstglorifying violence. But the two posts they quoted did nothing to“glorify" violence” What this comes down to is thatTwitter says Trump has been banned because some of his supporters (inunspecified instances) are allegedly reading his post-suspensiontweets in various dangerous ways. And misreadingwhat he said, I might add.One of the tweets praised hissupporters — the 75,000,000 voters who supported him. Hecalled them patriots. He said they should be respected and shouldcontinue to have a loud voice. That does not encourage violence.The other tweet said he won'tbe at the inauguration. Yes, a break with tradition, but maybe thebest response is, good riddance!Twitter says (and some otherreports have echoed these concerns)that there are plans for armed protests and another attack on theCapitol. Thatis of great concern. But Twitter does not say that Trump is involvedin that planning or that he tweeted anything about them. I did noticein passing a report that, after his initial 12-hour suspension waslifted, Trump had retweeted some of those statements. But thereport also said that Twitter had cited those retweets in itsdecision and plainly it has not, so the fact-checking of the reportis suspect. I have not been able to locate the report. And, becausethe Twitter account has been deleted in its entirety, I can’tverify the report (and I have not been able to find any screenshots).Now, when Twitter justifiesits decisions by relying on tweets that do not, in actuality, violateits rules, it just tends to suggest that what it has done isarbitrary. And that is not useful.What May Really Be theReasonsIt appears to me thatTwitter’s official views on Trump’s status evolved veryquickly in the past week. Although top executives felt that so longas he was president he should continue to enjoy his specialexception, Twitter staff apparently were very much of a differentopinion, and forcefully so. There was apparently a staff petition,and then a large intra-staff meeting, in which Twitter’s topexecutives were raked over the coals by their staff for theirinaction against the Trump account. That may well have mattered.Additionally, Twitter wasfacing intense pressure on Capitol Hill and in the public arena to bemore forceful about Trump’s incitement of the attach on theCapitol, and I believe they were genuinely concerned that, left withhis Twitter account, he might well have used it to incite furtherviolence on January 17 (Q being the 17th letter of the alphabet) andJanuary 20. Not because the two tweets did that, but because the guyis out of control. The explanatory blog post refers to the covertplanning for January 17 and January 20 repeat attacks, and I think itis quite possible that Twitter was worried that Trump might abuse hisprivileges. I wish the company had just said that (comparable toFacebook’s explanation) and said that, inretrospect, they had decided that its initial sanction for Trump’sprevious violations of its rules was not sufficiently severe.Perhaps More CynicalExplanationsFirst: Both Twitter andFacebook have cut back on Trump knowing that he is not going to havethe powers of the presidency much longer, and that, indeed, both theWhite House and, soon, both Houses of Congress are going to be inDemocratic hands. Just as they went out of their way to propitiateconservatives who claim (falsely) that social media companiesdiscriminate disproportionately against conservatives, while thoseconservatives ran the Senate and the White House,these companies don’t want to be adverse to the new power inDC.Second, and this is a relatedpoint: Trump liked to talk about how much benefit he derived fromhis Twitter account, but the converse is also true: Twitter hasprofited enormously from Trump’s account, which createsenormous controversy and hence draws many eyes to Twitter where theywill see ads. A number of people in the tech sector have been sayingthat the situation has simply evolved to the point where the benefitsthat Twitter was getting from hosting @realDonaldTrump were gettingto be greatly exceeded by the costs.Third: One exception tosection 230 immunity is for speech that violates the federal criminallaws. Some people have suggested that federal law enforcementofficials may have reached out to Twitter to warn that if itsfacilities are used to incite more riots in Washington DC, such as onJanuary 17 and January 20, it might face grand jury scrutiny. Now,to my mind the First Amendment’s Brandenburgstandard would likely bar prosecution for mere passive hosting ofprosecutable incitement; the Brandenburgstandard requires not just incitement of imminent lawless conduct,but intentto incite imminent lawless conduct, and passive hosting of speech ofwhich the host is not aware does not involve intent. But thepossible exposure without section 230 immunity, and needing to relyonly on the First Amendment, might well have been a chasteningfactor.Paul Alan Levy is a free speech litigator in Washington DC

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Every year a few days after New Years we post some stats about traffic and comments to effectively close the books on the year. I know that lots of sites do this prior to the end of the year, but we always wait until the new year is really here to make sure we have all the actual stats. I had meant to do this last week, but last week was a bit crazy and it kept me a bit busier than the average "first week of January." So, we're running a bit late here. If you'd like to see all such previous posts, they are here: 2019, 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011 and 2010.Also... a bit of an announcement. In all likelihood this will be the last year that we use Google Analytics for these stats. Over the last few months, we've been experimenting with a variety of analytics platforms that are more privacy focused, and we are likely to switch over entirely to them in the coming weeks. I don't know for sure, but it's likely we will turn off Google Analytics on this site relatively soon. As we've always said, though, nearly all analytics and traffic numbers are complete garbage, as they cannot distinguish between bots and real people, and many people chose to block analytics programs (especially Google). That's why we stopped reporting absolute numbers in these posts, because we knew they were not accurate. Instead, we do use them to tell relative numbers about which stories got the most traffic overall.We'll start, as per usual, with where people are coming from. The top of this list tends to stay pretty much the same year in and year out. The majority of our traffic is from the US, not surprisingly. It's almost always between 67% and 70% of our traffic. This year, it was 69.6% of our traffic. The UK was second at 6.1%. Canada was next at 5.1%, then Australia, India, Germany, France, China, the Netherlands and Finland. The surprise here... is China. We've noted in past years how little traffic we get from China, and have received reports of being blocked there. However, it seems like we got a decent amount of traffic from there this year (about 0.8% of overall traffic). I'm not sure why. We did have a bunch of stories about TikTok, so perhaps that has something to do with it. China's entry seems to have pushed Sweden out of the top 10.Chrome remains the main browser people use to visit the site, but once again that percentage is dropping (it did that last year too). In 2018 it was about 50% of our visitors came via Chrome. Last year it was 45%. This year it's down to 40%. Interesting... interesting... interesting. Safari has picked up much of the slack, jumping from 17% in 2018 to 22% last year and 28% this year. Seems like a trend worth watching. The next two browser listings are interesting: it's Android webview (12%) and Safari In-App at 7%. Arguably you could lump those with Chrome and Safari, but those are both the versions that people see on their mobile phone when they come across our story in another app, like Nuzzel or something. Firefox is hanging in there at 4.5% (down from 6% last year and 10% the year before). Internet Explorer usage continues to dwindle and now it's close to 1%. Microsoft Edge isn't really picking up the slack as it's at 1.8%. And I see Opera hanging in there at 0.5%.On the operating system side, iOS now dominates, with 32% of our traffic coming from iOS devices. Another 31% is from Android. Those two have been neck-and-neck for years -- but always came below Windows. However, the era of mobile Techdirt has really taken over, and now Windows comes in 3rd with 23% of our traffic, and MacOS is at exactly 10%. Linux lovers are still there at 2.5%, and Chromes OS at just a bit under 1%. A small, but still surprising, amount of visits came from BlackBerry, Playstation 4, and Xbox.As you can tell from the previous paragraph, mobile continues to grow. Last year was the first year we had more mobile visits that desktop, going from 39% to 55% from 2018 to 2019. In 2020 it was up to 64% (61% phone and 3% tablet). It's really quite amazing how quickly and how massively that shift has occurred. By device, the iPhone dominated the mobile traffic, which isn't surprising. The iPad was second. And from there a looooooong list of Samsung devices with a few Google Pixels thrown in along the way.Every year we highlight this chart on the source of our traffic (next year's will likely look different, since our new analytics systems don't seem to have an exactly equivalent chart, but I should be able to piece together something similar). What's interesting to me is how similar this one is to last year's. Direct traffic is exactly the same as a percentage. Search traffic went down a bit, while social traffic went up a bit. But, as I always say, our focus has never been playing the games most other sites play to get traffic from social, and we prefer to build up loyal readers, and so the percentage of people coming direct has always been the most important to me. Those are our true supporters and fans. Indeed, people who come directly to the site spend significantly more time on the site and visit more pages than those coming from search, and especially social. People coming via social spend the least amount of time on our site, and visit the fewest pages.In terms of outside sites that do send us traffic, we have a new one atop the leaderboard -- and this was a surprise to me as I've never even really been aware of it: SmartNews, which is a mobile news aggregator, sent the most (non-search) traffic to our site last year. Huh. If you read Techdirt via SmartNews, tell us about it. I was unaware it was even a thing. After that comes Twitter (with almost as much traffic as SmartNews), then Reddit, followed by Facebook, HackerNews, and the Drudge Report (?!?). In terms of search traffic, Google obviously provides the most, but DuckDuckGo and Bing both provide a surprising amount (and sent almost identical amounts of traffic to us last year).The top search terms are always bizarre to look at. After variations on "Techdirt" our top search terms for traffic were... Addison Cain, Parler, Shiva Ayyadurai, Who Invented Email, FBI Surveillance Van Wifi, the Social Dilemma, and can you plagiarize yourself. I'll let you make of that what you will.And now we get to the fun part. The lists!Top Ten Stories, by unique pageviews, on Techdirt for 2020:

If you hadn't noticed yet, the internet of things is a security and privacy shit show. Millions of poorly secured internet-connected devices are now being sold annually, introducing massive new attack vectors and vulnerabilities into home and business networks nationwide. Thanks to IOT companies and evangelists that prioritize gee-whizzery and profits over privacy and security, your refrigerator can now leak your gmail credentials, your kids' Barbie doll can now be used as a surveillance tool, and your "smart" tea kettle can now open your wireless network to attack.So of course this kind of security and privacy apathy has extended to more creative uses of internet-connected devices. Case in point: last October, security researchers found that the makers of an IOT chastity cage -- a device used to prevent men from being able to have sex -- (this Amazon link has the details) had left an API exposed, giving hackers the ability to take remote control of the devices. And guess what: that's exactly what wound up happening. One victim and device user say he was contacted by a hacker who stated he wouldn't be able to free his genitals from the device unless he ponied up a bitcoin ransom.Luckily his genitals weren't in the device at the time, though it's not clear other users were as lucky:

A couple of weeks ago, Techdirt wrote about an important copyright case in India, where a group of academic publishers is seeking a dynamic injunction to block access to the "shadow libraries" Sci-Hub and Libgen. The person behind Sci-Hub, Alexandra Elbakyan, has written to Techdirt with an update on the situation:

The hits just keep on coming for US federal agencies affected by the massive Solarwinds hack. State-sponsored hackers -- presumably Russian -- leveraged Solarwinds' massive customer base and compromised update server to infect systems around the world. Here in the United States, a possible 18,000 Solarwinds customers are affected… as are their users and customers, which brings the possible number of infected back up into the millions.The DHS's cyber wing, CISA, issued a warning about the hack, noting that the only solution was to air gap affected systems and delete the compromised Orion software. Hours later, the entity warning other federal agencies about the hack announced it too had been hacked, making the whole thing a bit Monty Python-esque.The list of federal agencies affected by this advanced persistent threat continues to grow. The Department of Commerce was one of the first to discover a breach. This was followed by announcements of suspected breaches at the US Postal Service and the Department of Agriculture. The Defense Department has also noted it's affected, although it has yet to deliver any specifics about the multitude of agencies it oversees.The DHS, Department of Energy, and the National Nuclear Security Administration have also been breached. The latest news adds a couple more federal agencies/operations to the list.The DOJ says it's been breached, but appears to believe the damage is minimal. That doesn't seem to jibe with the details of the statement, which says an email system used by damn near everyone was the target.

A small Idaho ISP by the name of Your T1 WIFI has decided to punish Twitter and Facebook for perceived "censorship" ... by censoring them. In an email to subscribers posted to Twitter, the company claims it will be blocking customer access to both websites by default moving forward. To access the websites, users apparently will need to contact the company to be added to a whitelist:

Since Twitter and Facebook banned Donald Trump and began “purging” QAnon conspiracists, a segment of the chattering class has been making all sorts of wild proclamations about this “precedent-setting” event. As such, I thought I’d set the record straight.1. “Deplatforming Trump sets a precedent”That says:

Last week Senators Hawley and Cruz used their platform and power as United States Senators to deliberately spread disinformation they knew or should have known to be false in order to undermine public confidence in the 2020 Presidential Election results. Their actions gave oxygen to a lawless and violent insurrection that nearly overran—literally and physically—our democratic government.They should have known better and there is every reason to believe they did know better. There is every reason to believe that they intended their actions to further their craven attempt to solidify their own desired political power, even though it came at the expense of our Constitutional order and democratic norms and likely *because* it came at the expense of our Constitutional order and democratic norms, which would otherwise have stood against their ambition. They are, after all, highly educated people, bearing credentials from some of our most esteemed academic institutions. It is impossible to believe they did not know what they were doing.Just as it is impossible to believe they did not know what they were doing when they railed against Section 230. At first glance it may seem like an irrelevant quibble to take issue with their position on Internet policy when viewed in comparison to the actual, violent insurrection they also invited. But it is indeed worth the attention, for the same reasons that their other anti-democratic behavior is so troubling. Because one of the reasons we have rights of free expression in America, and the Constitution to guarantee them, is because free expression is so necessary as a check against tyranny. And for those like Hawley and Cruz who are rooting for the tyranny, getting rid of those speech protections is a necessary first step to advancing that anti-democratic end.Which is what gutting Section 230 would do. While the First Amendment would, of course, in theory still be there to protect speech, in practice those rights would become illusory. When it comes to online expression, Section 230 is what makes those speech rights the First Amendment protects real and meaningful. And that's exactly what Hawley and Cruz want to prevent.They want to prevent it because they can see how Section 230 stands in their way. They can see how platforms exercising their First Amendment rights to choose which user speech to facilitate could lead to those platforms choosing not to facilitate their poisonous propaganda, and they understand how stripping platforms of their Section 230 immunity effectively takes away platforms' ability to make that choice by making it too legally precarious to try.They also can see how stripping platforms of their statutory immunity could force platforms to suppress user speech that challenges them. Section 230 allows platforms to have a free hand in enabling user speech because it means they don't have to fear enduring an expensive legal challenge over it. Without the statute's currently unequivocal protection, however, they won't be able to accommodate it so willingly. They will be forced to say no to plenty, including plenty of socially valuable, Constitutionally-protected speech against government officials like Hawley and Cruz, lest these platforms make themselves vulnerable to expensive litigation over it—which, even if unmeritorious, would do nothing but drain their resources. Every change to Section 230 that Hawley and Cruz have demanded would erode this critical protection platforms depend on to enable all this user expression and lead them to second guess whether they could continue to. And it would thus leave Hawley, Cruz, and their corrupt compatriots free to continue their nefarious efforts to consolidate their control over the nation without much fear of complaint.The problem is, though, so would all the changes to Section 230 also being championed by Democrats. Campaigning against Section 230 has not been the exclusive domain of Republicans. Plenty of Democrats have joined them, from Senator Blumenthal (D-CT), to Rep. Eshoo (D-CA) and Rep. Malinowski (D-NJ), to even Senator Schatz (D-HI). And, of course, perhaps the most prominent Democrat of them all: President-Elect Joe Biden. Their reasons for agitating against Section 230 may be different than those cited by Republicans, and their proposed changes may vary in specifics as well, but, whether they realize it or not, the effect of all these changes would be the same as what Hawley and Cruz have advocated for: the erosion of First Amendment protections online. Which will only grease the skids for the Hawleys and Cruzes of the world as much as all the changes they themselves have been calling for.Every policymaker appalled by what has just transpired and eager to preserve our system of self-government must take heed. Our inherently fragile democracy cannot survive without free speech, and no policymaker who wishes to ensure its survival can afford to do anything to undermine it. But when it turns out, as it does now, that the policy demanded by democracy's saviors is the same exact policy sought by its enemies, those who wish to save it need to think again about what they really ought to be asking for.

While we've been discussing the troubling actions the Chinese government has undertaken against Hong Kong for some time now, the movements are starting to reach a rapid pace. It was only in July that Beijing unveiled a sparkling new and impossibly vague "national security" law that was perfectly tuned to make any pro-democracy talk or demonstrations in Hong Kong offenses that would result in lengthy prison time. This was the result of months of protests that served to embarrass a Communist government that prides itself on full control. Again, that was only June. In August, the arrests of media members who were pro-democracy began, followed by the ouster and then arrest of pro-democracy lawmakers in November.And while one can imagine the Chinese government doing a bit of breath-holding in December as the American political system buried itself in bullshit thanks to one man's inability to admit defeat, it appears January was the start date to re-kick off the attacks on Hong Kong. In the early morning hours of Wednesday, 53 Hong Kong citizens were arrested under the national security law, all accused of, well...

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What a week the first week of January has been! As democracy and its institutions were tested in the United States, so were the Internet and its actors.Following the invasion of the Capitol Hill by protesters, social media started taking action in what appeared to be a ripple effect: first, Twitter permanently suspended the account of the President of the United States, while Facebook and Instagramblocked his account indefinitely and, at least, through the end of his term; Snapchat followed by cutting access to the President’s account, andAmazon’s video-streaming platform Twitch took a similar action; YouTube announced that it would tighten its election fraud misinformation policy in a way that it would allow them to take immediate action against the President in the case of him posting misleading or false information. In the meantime, Apple also announced that it would kick off Parler, the social network favored by conservatives and extremists, from its app store on the basis that it was promoting violence associated with the integrity of the US institutions.It is the decision of Amazon, however, to kick off Parler from its web hosting service that I want to turn to. Let me first make clear that if you are Amazon, this decision makes total sense from a business and public relations perspective – why would anyone want to be associated with anything that even remotely hinges on extremism? The decision also falls within Amazon’s permissible scope given that, under its terms of service, Amazon reserves the right to terminate users from their networks at their sole discretion. Similarly, from a societal point of view, Amazon may be seen as upholding most peoples’ values. But, I want to offer another perspective here. What about the Internet? What sort of a message does Amazon’s decision send to the Internet and everyone who is watching?There are several actors participating in the way a message – whether an email, cat video, voice call, or web page – travels through the Internet. Each one of them might be considered an “intermediary” in the transmission of the message. Examples of Internet infrastructure intermediaries include Content Delivery Networks (CDNs), cloud hosting services, domain name registries, and registrars. These infrastructure actors are responsible for a bunch of different things, from managing network infrastructure, to providing access to users, and ensuring the delivery of content. These – mostly – private sector companies provide investment as well as reliability and upkeep of the services we all use.In the broadcasting world, a carrier also controls the content that is being broadcast; with the Internet, however, an actor responsible for the delivery of infrastructure services (e.g., an Internet Service Provider or a cloud hosting provider) is unlikely or not expected to be aware of the content of the message they are carrying. They simply do not care about the content; it is not their job to care. Their one and only responsibility is to relay packets on the Internet to other destinations. Even if, for the sake of the argument, they were to care, at the end of the day, they are not the producers of the content. Like postal and telephone services, they have the essential role of carrying the underlying message efficiently.Over the past year, the role and responsibility of intermediaries has been placed under the policy microscope. The focus is currently on user-generated content platforms, including Facebook, Twitter and YouTube. In the United States, policy makers on both sides of the aisle have been considering anew the role of intermediaries in disseminating dis- and mis-information. Section 230, the law that has systematically, consistently and predictably shielded online platforms from liability over the content their users post, has been highly politicized and change now is almost inevitable. In Europe, after a year of intense debate, the newly released Digital Services Act has majorly upheld the long-standing intermediary liability regime, but, still, there are implementation details that could see some change (e.g, all of provisions on ‘trusted flaggers’).It is the actions like the one that Amazon took against Parler, however, that go beyond issues of just speech and can set a precedent that could have an adverse effect on the Internet and its architecture. By denying cloud hosting services, Amazon is essentially taking Parler offline and denying its ability to operate, unless the platform can find another hosting service. This might be seen as a good thing, prima facie; at the end of the day, who wants such content to even exist, let alone circulate online? But, it does send a quite dangerous message: as infrastructure intermediaries can take action that cuts the problem from its root (i.e., getting a service completely offline), regulators might start looking at them to “police” the Internet. In such a scenario, infrastructure intermediaries would have to deploy content-blocking measures, including IP and protocol-based blocking, deep packet inspection (i.e., viewing content of “packets” as they move across the network), and URL and DNS-based blocking. Such measures ‘over-block’, imposing collateral damage on legal content and communications. They also interfere with the functioning of critical Internet systems, including the DNS, and compromise Internet security, integrity, and performance.What Amazon did is not unprecedented. In 2017, Cloudflare took a similar action against the Daily Stormer website when it stopped answering DNS requests for their sites. At the time, Cloudflare said: “The rules and responsibilities for each of the organizations [participating in Internet] in regulating content are and should be different.” A few days later, in an op-ed, published at the Wall Street Journal, Cloudflare’s CEO, Matthew Prince said: “I helped kick a group of neo-Nazis off the internet last week, but since then I’ve wondered whether I made the right decision.[…] Did we meet the standard of due process in this case? I worry we didn’t. And at some level I’m not sure we ever could. It doesn’t sit right to have a private company, invisible but ubiquitous, making editorial decisions about what can and cannot be online. The pre-internet analogy would be if Ma Bell listened in on phone calls and could terminate your line if it didn’t like what you were talking about.”Most likely Amazon faced the same dilemma; or, it might have not. One thing, however, is certain: so far, none of these actors appears to be considering the Internet and how some of their actions may affect its future and the way we all may end up experiencing it. It is becoming increasingly important that we start looking into the salient, yet extremely significant, differences between moderation happening by user-generated content platforms as opposed to moderation happening by infrastructure providers.It is about time we make an attempt to understand how the Internet works. From where I am sitting, this past year has been less lonely and semi-normal because of the Internet. I want it to continue to function in a way that is effective; I want to continue seeing the networks interconnecting and infrastructure providers focusing on what they are supposed to be focusing on: providing reliable and consistent infrastructure services.It is about time we show the Internet we care!Dr. Konstantinos Komaitis is the Senior Director, Policy Strategy and Development at the Internet Society.

Bad news for folks "worn out" by the longstanding debate over net neutrality: it's about to be rekindled in a major way. But for those who are a bit too easily annoyed by having to revisit this well tread path, it's worth remembering that the debate about net neutrality is really about competition, policing monopolization, and having regulators and antitrust enforcers that aren't feckless cowards in dutiful sway to powerful natural monopolies. And either you care about these very real problems, or you don't.With the Senate falling under Democratic control in the wake of the Georgia run off elections, Mitch McConnell, AT&T, and Comcast's dream scenario -- an FCC perpetually crippled by partisanship by McConnell -- is no longer happening. Big telecom had hoped that the rushed appointment of unqualified Trump sycophant Nathan Simington would bring the agency to a 2-2 partisan Commissioner tie. It's extremely clear McConnell then planned to block the appointment of a new FCC boss to ensure the agency was crippled and lacked the majority to reverse Trump's lengthy list of handouts to the telecom sector.That's no longer possible, meaning the Biden administration, with a 3-2 Commissioner majority, should be able to pick their preferred FCC boss and get back to at least occasionally pretending that monopolistic behavior and consumer protection is something we take seriously. Net neutrality activists are, as you might expect, excited to reverse a lot of Trump era policies like the factually dubious and hugely unpopular repeal of net neutrality:

We've got a double winner this week, with a comment from Bloof taking the first place spot for insightful and the second place spot for funny. It's a pretty comprehensive response to the allegations of fraud in the 2020 election:

Sign up for the Public Domain Game Jam on itch.io »We're just over a week into our third annual public domain game jam, Gaming Like It's 1925, and it runs until the end of the month so there's still plenty of time to sign up and start working on an entry! We're looking for analog and digital games that are inspired by and/or make direct use of materials from works published in 1925, which have now entered the public domain, and giving away prizes for the best ones in multiple categories.It doesn't matter if you're an experienced game designer or someone who's never tried it before — the beauty of the public domain is that it supplies a growing wealth of inspiration and assets for you to use, and the beauty of modern game design tools is that you can dip your toe in without any particular expertise or technical knowledge (and we've got links to several tools that can help over on the game jam page). Entries can be as simple as a one-page set of rules for a game to be played in person (or perhaps over Zoom, given our current circumstances) or as complex as a full-fledged video game, and anything in between. There are six categories to compete in (the winners of the 2020 jam are linked below, and you can read our judges' thoughts on them here):

When I started writing this post, it was about Facebook's decision to suspend Trump's account indefinitely, and at least until Joe Biden is inaugurated in a couple weeks. I had lots to say on that... and then Friday afternoon, Twitter decided to ban Trump's Twitter account permanently. This is a bigger deal, not just because it's permanent, rather than indefinite, but because so much of Trump's identity over the last four years (and before that) is tied up in his Twitter account and followers.Certainly, all of this has kicked off a whole new storm from across the political spectrum. You have Trump supporters who are furious and (falsely) claiming that this is "censorship" or unprecedented and heavy handed (it is none of those things). Then you have Trump haters who are screaming about how this is all way too late and is trying to close the barn door after the horses have long since bolted. I think neither argument is accurate. Will Oremus has a long (and very interesting!) look over on OneZero about how Facebook supposedly chucked out its own rulebook to come up with an excuse to suspend Trump's account:

Summary: Any site that relies on uploaded content has to be wary of hosting pirated content. In most cases, allegedly infringing content is removed at the request of rights holders following the normal DMCA takedown process. A DMCA notice is issued and the site responds by removing the content and -- in some cases -- allowing the uploader to challenge the takedown.SoundCloud has positioned itself as a host of user-created audio content, relying on content creators to upload original works. But, like any content hosting site, it often found itself hosting infringing content not created by the uploader.Realizing the potential for SoundCloud to be overrun with infringing content, the platform became far more proactive as it gained users and funding.Rather than allow the normal DMCA process to work, SoundCloud allowed one major label to set the terms of engagement. This partnership resulted in Universal being able to unilaterally remove content it believed was infringing without any input from SoundCloud or use of the normal DMCA process.One user reported his account was closed due to alleged infringement contained in his uploaded radio shows. When he attempted to dispute the removals and the threatened shuttering of his account, he was informed by the platform it was completely out of SoundCloud's hands.

As Techdirt readers know, there's a lot of hatred for social media in some circles, and lots of lies being told about why Section 230 is to blame. Against that background, it's useful to remember that, as their name implies, they are just media -- things in the middle of people communicating to others. As such, they are neither good nor bad, but tools that can be used for both. In addition, social media posts themselves can be used in good and bad ways. Examples of the former include the Bellingcat investigations that frequently analyze social media to tease out information about major events that is otherwise hard to obtain. Sometimes, the information is so easy to find, you don't even need any special skills. An article on Ars Technica points out that identifying the leading insurrectionists who participated in the recent events at the US Capitol is going to be pretty straightforward, thanks to social media: