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Today we're introducing something very new: the Tech Policy Greenhouse. This is a project that I've been working on for about two years now, and I'm both thrilled and relieved to finally be getting it out the door. It starts from this basic premise: many of the biggest issues facing technology and innovation today are significant challenges that have no easy answer. Every possible approach or solution (including doing nothing at all) has tradeoffs. And yet very few people seem willing to admit that, as admitting to tradeoffs in policy proposals is seen as a sign of weakness or giving in. But the issues facing innovation policy today are too big and too important to not have a truly open discussion.And having a truly open discussion about difficult policy questions means a lot more than the way the media has traditionally held these conversations: pitting two sides against one another and letting them argue it out. That rarely brings enlightenment, and mostly seems to just involve everyone digging in to their previously held beliefs. Having an open discussion about big challenges with no easy answers means being willing to dive deep into details, exploring ideas that might make you uncomfortable, and testing hypotheses that sometimes seem absurd on first glance -- but then being open to the feedback, ideas, improvements, and critiques raised about the ideas.The Tech Policy Greenhouse is an attempt to have those discussions. Think of it as something of an online symposium, where we will be bringing in a variety of experts to give their thoughts on these issues, but hopefully with the humility to recognize that what is being discussed is difficult, and understanding all of the variables at play is an impossibility. Part of this means that we'll be publishing stories that challenge us -- including some arguments that I personally disagree with -- but which we believe are being presented in good faith and for the purpose of open discussion and debate, in the hopes that whatever future policy proposals and decisions are made, they are better informed by understanding a variety of points of view, a variety of proposals, and a variety of ideas about what might work.This does not mean that the Tech Policy Greenhouse will or should be a clearing house for nonsense or half-baked ideas. There are certainly plenty of those. Instead, the goal is to get the best minds out there, willing to discuss difficult-to-impossible problems in a way that allows for greater understanding and greater humility about the eventual policy choices that are made.To help with this project, we are pleased that we have help from two excellent editors, whose names should be well recognized around here: Karl Bode and Mike Godwin. Karl, of course, has long been a writer for Techdirt, as well as a number of other tech, telco, and policy publications -- and has agreed to take on a more involved editorial role for Greenhouse. Godwin, of course, is so internet-famous that he has an entire "law" named after him. He was also the first lawyer EFF hired, as well as the General Counsel for the Wikimedia Foundation. His insights into all things related to tech policy are unmatched and always thought-provoking.For readers of Techdirt, you will see the new Greenhouse posts directly in the main feed, though they will be visually distinct (you may notice they look a bit... greener). We will continue to post regular Techdirt posts and content in the regular format, but the green posts will be from various experts and will be based around a theme that we are exploring at the time. Our plan is to roll out a few themes each year (the exact pace we'll figure out along the way). There is also now a Greenhouse tab at the top, if you want to see only the Greenhouse posts.There is one other change regarding the Greenhouse posts. While they will have our regular comment area, there will also be a separate "Featured Discussion" area, in which those who are participating in the Techdirt Greenhouse project will be encouraged to comment and discuss the other posts in the series. This is very much an experiment that might not work, but we're excited to test it out. If the panelist discussion is happening, you will see it between the post and the regular comment section.Our inaugural topic is digital privacy, because we decided to jump right into the deep end of extremely important, but controversial, problems with no easy solutions. Karl will introduce the overall topic in another introductory post, followed by Godwin's introduction regarding his thoughts on why the privacy debate needs to be reframed. And then, starting tomorrow and over the next few weeks, you'll see a variety of Greenhouse posts from experts interspersed among the regular Techdirt content. We are also open to more such posts, so if you have expertise and would like to contribute, please feel free to contact us.Also, I should address the elephant in the greenhouse: this project is currently sponsored by Google, Twitter, and Protocol Labs. For some, this will discredit the entire project. We set out to try to launch this project with only grants from foundations and without corporate sponsorship, but so far have not been able to find foundations willing to support it (if you know of any who might be interested, or if you happen to work for one, please also reach out and let us know). Given that unfortunate lack of interest from foundations so far, we were happy that these three companies were willing to step up and sponsor the launch of this effort which, again, is a few years in the making. From the beginning, we were upfront that the whole point of this project is to discuss challenging tech policy questions, and that if any company sponsored this project, they would probably disagree heavily with some of the content, but that we felt that enabling those open and thoughtful discussions was good for the future of innovation itself -- and all three sponsors seemed to recognize the value of the conversations, even when some of the content might go against the company's own interests (indeed, the interests of the three sponsors are not aligned with one another in many cases, and sometimes diametrically opposed).Still, if this concerns you, I only ask that you judge the content on its own merits. The whole point of this project is to take us all out of our comfort zone. I hope that people everywhere, no matter how they feel about various tech policy questions, can at least recognize that thoughtful conversation and debate are important to coming up with better policy overall. I look forward to this inaugural discussion on privacy -- and I hope everyone here will welcome it.

Big wireless carriers haven't been exactly honest when it comes to the looming fifth-generation wireless standard (5G). Eager to use the improvements to charge higher rates and sell new gear, carriers and network vendors are dramatically over-hyping where the service is actually available, and what it can actually do. Some, like AT&T, have gone so far as to actively mislead customers by pretending that its existing 4G networks are actually 5G. AT&T took this to the next level last year by issuing phone updates that changed the 4G icon to "5GE" on customer phones, despite the fact that actual 5G isn't really available.Sprint sued AT&T last year for being misleading, but the suit was settled (likely so Sprint could focus on its merger with T-Mobile) without much coming of it. AT&T's competitors also complained via the Better Business Bureau's National Advertising Division (NAD), which is a "self-regulatory" system designed to help companies settle disputes without the involvement of regulators. After a year of bickering and appeals, NARB (the enforcement arm of NAD) finally ruled last week that the practice was misleading and the ads should be discontinued:

We were promised no more deaths by May 15th, but that hasn't happened. With no one 100% sure what the best options are going forward, this is how states are handling the task of (lol) cautiously "reopening." A long press conference held by the Trump administration said states could reopen if they hit a number of checkpoints, including a certain amount of testing and a plateau/drop in positive cases.A number of states appear to have stopped listening after the word "reopen." Whether or not they've hit the CDC's checkpoints does not appear to matter. A collective shrug about deaths and infections was issued by a number of governors, some of whom are (justifiably) tired of gun-toting residents showing up at the state house to protest their lack of access to haircuts and house parties.When the data doesn't match the narrative, there's only one thing to do: fuck up the data. And the person who's compiling it. Florida has lots of sunny beaches that are currently too empty to satisfy sun junkies who wish to take advantage of the lengthy shorelines contained in America's Penis. COVID stats weren't exactly lending themselves to the "it's fine" narrative the governor wanted to push. So, the state government did some pushing of its own.

As the debate continues over the renewal of some Patriot Act provisions for NSA surveillance techniques, the House now has a chance to correct a failure by the Senate, by one measly vote, to require a warrant for the FBI to go sifting through your internet histories that the NSA scooped up along the way. The intelligence community refuses to reveal how often this is done, but Senator Wyden is indicating that it's a lot more than you think -- and he's been right pretty much every time he's made those suggestions.It's now up to the House, and while Rep. Lofgren had a version of the warrant requirement amendment, some petty political squabbling from Democratic leadership threatened to quash it -- mainly by Rep. Adam Schiff inserting a massive loophole to allow for more warrantless surveillance. Earlier on Tuesday it was reported that, after a long weekend of haggling, it appeared that a vote will be allowed on Lofgren's Amendment and that the language had been cleared up to the point that even Senator Wyden backed it:

It appears that at least one judge handling Devin Nunes' various SLAPP suits in Virginia has caught on to at least some of what's going on here. Judge Robert E. Payne has now transferred two of his lawsuits -- the ridiculous defamation filing against CNN and the even sillier SLAPP suit against the Washington Post -- to better venues. In both cases, the judge seems pretty fed up with Nunes' lawyer, Stephen Biss, opening both by quoting what was said to Biss in yet another one of his silly SLAPP suits:

The Senate tried and failed to erect a warrant requirement for the FBI's collection of US citizens' internet browsing data. The amendment to the FISA reauthorization fell one vote short -- something that could have been avoided by having any of the four missing Senate supporters show up and actually support the thing. The House has a chance to pass this amendment before sending the bill to the president, but they've decided to engage in some unproductive infighting instead.As it stands now, it still stands the way it has always stood: the FBI can get this information without a warrant. If we can't have this amendment, maybe we can have some answers about the FBI's use of this power. Senator Ron Wyden has sent a letter to the Director of National Intelligence asking how often government agencies have spied on Americans' internet usage. The answer will probably arrive sometime between "years from now" and "never," given how enthused the DNI usually is about discussing domestic surveillance originating from the Foreign Intelligence Surveillance Act.Since there doesn't seem to be any good reason to allow the FBI to continue this warrantless collection, surveillance supporters in Washington have decided to craft some bad ones. Dell Cameron reports for Gizmodo that certain Senators think a warrant requirement allows the terrorists to win.

Last week, we wrote about one of the biggest, glaring flaws in the Copyright Office's long awaited report on the DMCA 512's safe harbors was its refusal to recognize how frequently it's abused to take down legitimate works. As if on cue, over the weekend, the NY Times has quite the story about a feud in (I kid you not), wolf-kink erotica fan fiction, that demonstrates how the DMCA is regularly abused to punish and silence people for reasons that have nothing to do with copyright.The full NY Times article is worth reading, describing a still ongoing legal fight between two fanfic authors who wrote stories building on some apparently common tropes in the wolf-erotica fiction genre. One author sued another, but, as the article notes, all of the supposedly "copied" elements are common throughout the wider genre:

Over the weekend, the Wall Street Journal reported that "President Trump is considering establishing a panel to review complaints of anti-conservative bias on social media." That story is likely behind a paywall, though Fox News (natch) reposted most of it and lots of tech news sites wrote up their own versions of the report.The basis is exactly what you think it is. A bunch of Trump supporters have been falsely insisting that social media companies are unfairly "biased" against conservatives. There is exactly zero evidence to date to support this. There are a few anecdotes of whiny assholes, who violated terms of service, losing service, and a few anecdotes of just not very good content moderation (though, those seem to fall pretty broadly across the political spectrum). There is no indication that any of the moderation activity is unfairly targeting conservatives or even that there is any "bias" at all. I'm sure some people will rush to the comments here with one of two reactions: they will either call me "blind" and complain that I'm simply not looking around (though they will present no actual evidence) or they will cite a few meaningless anecdotes, ignoring that a few anecdotes on platforms that have to make literally millions of moderation choices, is not evidence of bias.But, more importantly: the government can't do anything even if they were biased. And this is where all of the reporting I've seen so far falls down. Most clearly, the government simply cannot force platforms to moderate in a certain way. That would violate the 1st Amendment. So even if a panel is formed, it couldn't actually do anything to change things, beyond just being an annoying pest. But, it seems like the media should be making this clear. Any panel cannot force internet companies to treat political viewpoints in some different manner. That's a blatant 1st Amendment problem.Separately, even the formation of the panel may very well present a 1st Amendment problem on its own, because it is clearly the government using its will to try to pressure private companies into treating certain political viewpoints differently. Remember what Judge Posner wrote in Dart v. Backpage, in which he dinged a sheriff, Thomas Dart, for merely sending a letter that was vaguely threatening to the free speech rights of an internet platform: " Some public officials doubtless disapproveof bars, or pets and therefore pet supplies, or yard sales, orlawyers,... or men datingmen or women dating women—but... it wouldbe a clear abuse of power for public officials to try to eliminate them not by expressing an opinion but by threatening... third parties, with legal or other coercive governmental action."Just because government officials are upset with 1st Amendment protected speech choices of the companies, that does not mean they can do something that is obviously a threat of coercive action.Anyone -- including the Wall Street Journal -- reporting on this stuff owes it to their readers to make that clear. Tragically, so far none of the reports I've seen have done so.

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The best place for a messenger is six feet under, according to the governor of Arkansas, Asa Hutchinson. Despite being a founding chair of Governors for CS [Computer Science] (according to Slashdot), Hutchinson has decided to blame a security researcher for the state's inability to properly secure one of its websites. Lindsey Millar, who reported the breach exposing the sensitive information of the site's users, reports that Governor Hutchinson is trying to villainize the person who stumbled upon the unexpected data flow.It all started innocently enough when a programmer, who had attempted to apply for financial aid via Arkansas' Pandemic Unemployment Assistance website, discovered it was exposing Social Security numbers and bank account numbers. This person got in touch with Millar, who brought it to the attention of the state.That's where things went extremely wrong.

Late last week, news emerged that the DOJ would likely be bringing a massive antitrust lawsuit against Google. Reports suggest this is the culmination of a full year of saber rattling by Bill Barr, who has made "antitrust inquiries" into "big tech" a top priority at the DOJ:

This week, our first place winner on the insightful side comes from That One Guy in response to FOSTA supporters making an unsurprising pivot to killing off pornography:

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Food delivery services always felt a bit wonky to me. I'm usually not terribly old fashioned about most things, but I generally understood that some restaurants delivered and some did not and that that was mostly fine. Along came food delivery services to bring us food from places that didn't deliver and that was mostly fine, too. But lately it's starting to become clear that somewhere in the ecosystem of venture capitalist funding and food delivery services, something is broken. We'll explore the larger issues in a separate post, but one great example of how janky this is getting is how one pizzeria owner managed to make a nice profit by buying his own pizzas from DoorDash. Confused? Well, buckle up.

We've noted several times that the FTC's settlement over the Equifax hack that exposed the public data of 147 million Americans was little more than a performative joke. While much was made of the historic fine levied against the company, the FTC's settlement failed to provide impacted victims much of anything outside of a sad chuckle.The agency originally promised that impacted users would be able to nab 10 years of free credit reporting or a $125 cash payout if users already subscribed to a credit reporting service. But it didn't take long for the government to backtrack, claiming it was surprised by the number of victims interested in modest compensation, while admitting the settlement failed to set aside enough money to pay even 248,000 of the hack's 147 million victims. Even the credit reporting was relatively useless given such offers have been doled out the last seventy times consumers were impacted by a company's shaky security and privacy standards.While consumers didn't see their promised compensation, US banks are facing no such hurdles. The company this week agreed to shell out $5.5 million to thousands of banks and credit unions who say they were harmed by the targeted hack of Equifax customers. The full agreement with the banks also doles out an additional $25 million to help beef up security, with Equifax also covering the banks' administrative costs, attorney fees, and assorted expenses.But while the banks are now covered, the actual victims of the hack attack remain lost in the bureaucratic mire:

Also, following on my last post: since the First Amendment protects site moderation and curation decisions, why all the calls to get rid of CDA 230’s content moderation immunity?Having listened carefully and at length to the GOP Senators and law professors pitching this, the position seems to be a mix of bad faith soapboxing (“look at us take on these tech libs!”) and the idea that sites could be better held to account -- contractually, via their moderation codes -- if the immunity wasn’t there.This is because the First Amendment doesn’t necessarily bar claims that various forms of “deplatforming” -- like taking down a piece of content, or suspending a user account -- violate a site’s Terms of Use, Acceptable Use Policy, or the like. That’s the power of CDA 230(c)(2): it lets sites be flexible, experiment, and treat their moderation policies more as guidelines than rules.Putting aside the modesty of this argument (rallying cry: “let’s juice breach-of-contract lawsuits against tech companies”) and the irony of “conservatives” arguing for fuller employment of trial attorneys, I’ll make two observations:First of all, giving people a slightly-easier way to sue over a given content moderation decision isn’t going to lead to sites implementing a “First Amendment standard.” Doing so -- which would entail allowing posts containing all manner of lies, propaganda, hate speech, and terrorist content — would make any such site choosing this route an utter cesspool.Secondly, what sites WOULD do in response to losing immunity for content moderation decisions is adopt much more rigid content moderation policies. These policies would have less play in them, less room for exceptions, for change, for context.Don’t like our content moderation decision? Too bad; it complies with our policy.You want an exception? Sorry; we don’t make exceptions to the policy.Why not? Because some asshole will sue us for doing that, that’s why not.Have a nice day.CDA 230’s content moderation immunity was intended to give online forums the freedom to curate content without worrying about this kind of claim. In this way, it operates somewhat like an anti-SLAPP law, by providing the means for quickly disposing of meritless claims.Though unlike a strong anti-SLAPP law, CDA 230(c)(2) doesn’t require that those bringing such claims pay the defendant’s attorney fees.Hey, now THERE’s an idea for an amendment to CDA 230 I could get behind!Reposted from the Socially Awkward blog.

More than four years ago, the Copyright Office kicked off a project to do a big "study" on Section 512 of the DMCA, better known as either the "notice-and-takedown" section of copyright law, or the "safe harbors" section for websites. The Office took comments, held a few, somewhat bizarre "roundtables" (that we participated in)... and then... silence. Years of silence. Until yesterday when it finally released the report. It's 250 pages and there's a lot in there -- and we're likely to have a few more posts on it as we dig into the details, but to kick it off, I wanted to highlight just how bizarre a report it is, in that the authors don't seem to realize or ever acknowledge that the purpose of copyright law (and even this section) is to create the best possible services for the public.Instead, the report seems to frame the entire Section 512 debate as a battle between the legacy copyright industry and giant internet companies. From the executive summary:

It's getting absurd to have to do this every few weeks, but the media keeps publishing blatantly wrong things about Section 230 of the Communications Decency Act. You would think that after the NY Times had to roll back its own ridiculous headline blaming "hate speech" on the internet on Section 230, only to have to say "oops, actually, it's the 1st Amendment," that other publications would take the time to get things straight and recognize that nearly everything they're complaining about is actually the 1st Amendment, not Section 230. Section 230 merely protects the 1st Amendment, by making it easier to get out of SLAPPish lawsuits earlier in the process.Yet, Newsweek apparently did not take note, and agreed to publish an op-ed by a group that was set up with former Republican Congressional staffers to deliberately push FUD and nonsense about successful internet companies called the "Internet Accountability Project" (which is not accountable for its own funding). IAP has been targeting Section 230 pretty much from day one, and this Newsweek op-ed is par for the course in that nearly everything it claims is wrong, misleading, or just ridiculous. First it describes a few examples of both Facebook and Google moderating potentially dangerous misinformation campaigns about COVID-19 and claims that this is some sort of evil censorship:

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At the same time the FBI director was claiming the private sector (other than Apple) couldn't help agents break into encrypted iPhones, the private sector was once again demonstrating it could do exactly that. Chris Wray's remarks to the press centered less on the underwhelming news that the FBI had conclusively linked the Pensacola Air Base shooter to al Qaeda than on Apple's supposed unhelpfulness.The FBI claimed it had found a way to access data on the shooter's phones, but provided no details on its method. Maybe agents brute forced a passcode. Maybe they just found a side door that allowed them to exfiltrate the data they were looking for. Whatever it was, it wasn't something provided by a vendor. In fact, Chris Wray went so far as to claim the media was misleading the public about the availability of encryption-breaking/bypassing tech.

For years 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.Undaunted, big ISPs like AT&T and Comcast have waged a multi-pronged, several decade attack on such efforts. One, by passing protectionist laws in roughly 20 cities either hamstringing or banning cities from building their own networks, often in cases where private ISPs refuse to expand service. Two, by funding economists, consultants, and think tankers (usually via proxy organizations) happy to try and claim that community broadband is always a taxpayer boondoggle -- unnecessary because private sector US broadband just that wonderful.The latest example of the latter comes via the Taxpayer Protection Alliance, a nonprofit that insists its focus is "holding government accountable," but is routinely backed by telecom giants like AT&T, which, for obvious reasons, are eager to paint an inaccurate picture of what's actually happening. The group's latest study, "GON with the Wind: The Failed Promise of Government Owned Networks Across the Country," claims to take a look at 30 examples of community broadband networks, with the heavy implication that the majority of them have failed -- proving that community broadband is always bad and private sector broadband is always good:

Just last week, Ben Thompson's excellent Stratechery site had a great post describing the important differences between open and free, specifically with regards to podcasts. The occasion was his decision to launch a paid-for, but still "open" podcast. And he explains how there are important differences (in particular) between "open and for-pay" vs. "closed and free." Open and for-pay means that it's not locked down, and can work on a variety of different setups and open platforms. The payment is part of the business model, but the openness gives the end-users more control and freedom. In the software world, you might talk about this as "free as in speech" rather than "free as in beer." The "free, but closed" model is one where you can get the products for free -- but they're locked in a proprietary system. Facebook is an example of free, but closed, for example.Thompson was talking in particular about his own podcast (open, but paid) as compared to Spotify's podcast strategy (free, but closed). Last year, when Spotify purchased a bunch of podcast companies, we worried that it foretold the end of the open world of podcasting. You can get a Spotify account for free, but unlike most podcast apps, you can't get any podcast you want via Spotify. Spotify has to agree to host it, and as a podcast you have to "apply" (indeed, Techdirt's own podcast was initially rejected by Spotify, though has since been let in). That's a "closed, but free" setup. Most podcasts are both open and free -- published as open MP3 files, using an open RSS feed that any regular podcast app can grab.Spotify, so far, hadn't done much to close off the podcasts that it had purchased, but perhaps that's changing. Earlier this week it was announced that one of (if not) the most popular podcasts in the world, Joe Rogan's, would now be moving exclusively to Spotify. News reports have said that Spotify paid over $100 million to get Rogan's podcast on board, while some have put the number closer to $200 million.While it's totally understandable why Rogan would take that deal (who wouldn't?), it does remain a sad day for the concept of an open internet. When we lock up content into silos, we all lose out. The entire concept of podcasts came from the open nature of the internet -- combining MP3s and RSS to make it all work seamlessly and enabling anyone to just start broadcasting. The entire ecosystem came out of that, and putting it into silos and locking it up so that only one platform can control it is unfortunate. I'm sure it will get many people to move to Spotify's podcasting platform, though, and that means those that do offer open podcasting apps (most others) will suffer, because most people aren't going to want to use two different podcast apps.Even if the initial economics make sense, it still should be seen as a sad day for the open internet that enabled podcasting to exist in the first place.

If you're visiting our site today (and I guess, forever into the future if you don't click "got it") you will now see a notification at the bottom of the site saying that this site uses cookies. Of course, this site uses cookies. Basically any site uses cookies for all sorts of useful non-awful, non-invasive purposes. We use cookies, for example, to track your preferences (including when you turn off ads on the site, which we let you do for free). In order to make sure those ads are gone, or whatever other preferences stay in place, we use cookies.For the last few years, of course, you've probably seen a bunch of sites pop up boxes "notifying" you that they use cookies. For the most part, this has to do with various completely pointless EU laws and regulations that probably make regulators feel good, but do literally nothing to protect your privacy. Worst are the ones that suggest that by continuing on the site you've made some sort of legal agreement with the site (come on...). These cookie notification pop ups do not help anyone. They don't provide you particularly useful information, and they don't lead you to a place that is more protective of your actual privacy. They just annoy people, and so people ignore them, leave the site, or (most commonly) just "click ok" to get the annoying bar or box out of the way to get to the content they wanted to see in the first place.Here's the stupendously stupid thing about all of this: you are already in control. If you don't like cookies, your browser gives you quite a lot of control over which ones you keep, and how (and how often) you get rid of them. Some browsers, like Mozilla's Firefox Focus browser, automatically discard cookies as soon as you close a page (it's great for mobile browsing, by the way). Of course, that leads to some issues if you want to remain logged in on certain pages, or to have them remember preferences, but for those you can use a different browser or change various settings. It's nice that the power to handle cookies is very much up to you. We here at Techdirt like it when the control is pushed out to the ends of the network, rather than controlled in the middle.But, because it makes some privacy regulators feel like they've "done something", they require such a pointless "cookie notification" on sites. Recently, one of our ad providers told us that we, too, needed to include such a cookie notification, or else we'd lose the ability to serve any ads from Google, who (for better or for worse) is one of the major ad providers out there. We did not get a clear explanation for why we absolutely needed to add this annoying notification that doesn't really help anyone, but the pleas were getting more and more desperate, with all sorts of warnings. We even asked if we could just turn off the ads entirely (which would, of course, represent something of a financial hit) and they seemed to indicate that because we still use other types of cookies (again, including cookies to say "don't show this person any ads"), we had to put up the notification anyway.The last thing we were told is that if we didn't put up a cookie notification within a day, Google would "block us globally." I'm honestly not even sure what this means. But, either way, we're now showing you a cookie notification. It's silly and annoying and I don't think it serves your interests at all. It serves our interests only inasmuch as it gets our partner to stop bugging us. Don't you feel better?You can click "got it" and make it go away. You can not click it and it will stay. You can block cookies in your browser, or you can leave them. You can toss out your cookies every day or every week (not necessarily a bad practice sometimes). You're in control. But we have to show you the notification, and so we are.

So if the First Amendment protects site moderation and curation decisions, why are we even talking about “neutrality?”It’s because some of the bigger tech companies -- I’m looking at you, Google and Facebook -- naively assumed good faith when asked about “neutrality” by congressional committees. They took the question as inquiring whether they apply neutral content moderation principles, rather than as Act I in a Kabuki play where bad-faith politicians and pundits would twist this as meaning that the tech companies promised “scrupulous adherence to political neutrality” (and that Act II, as described below, would involve cherry-picking anecdotes to try to show that Google and Facebook were lying, and are actually bastions of conversative-hating liberaldom).And here’s the thing -- Google, Twitter, and Facebook probably ARE pretty damn scrupulously neutral when it comes to political content (not that it matters, because THE FIRST AMENDMENT, but bear with me for a little diversion here). These are big platforms, serving billions of people. They’ve got a vested interest in making their platforms as usable and attractive to as many people as possible. Nudging the world toward a particular political orthodoxy? Not so much.But that doesn’t stop Act II of the bad faith play. Let’s look at how unmoored from reality it is.Anecdotes Aren’t DataAnecdotes -- even if they involve multiple examples -- are meaningless when talking about content moderation at scale. Google processes 3.5 billion searches per day. Facebook has over 1.5 billion people looking at its newsfeed daily. Twitter suspends as many as a million accounts a day.In the face of those numbers, the fact that one user or piece of content was banned tells us absolutely nothing about content moderation practices. Every example offered up -- from Diamond & Silk to PragerU -- is but one little greasy, meaningless mote in the vastness of the content moderation universe.“‘Neutrality?’ You keep using that word . . .”One obvious reason that any individual content moderation decision is irrelevant is simple numbers: a decision representing 0.00000001 of all decisions made is of absolutely no statistical significance. Random mutations -- content moderation mistakes -- are going to cause exponentially more postings or deletions than even a compilation of hundreds of anecdotes can provide. And mistakes and edge cases are inevitable when dealing with decision-making at scale.But there’s more. Cases of so-called “political bias” are, if it is even possible, even less determinative, given the amount of subjectivity involved. If you look at the right-wing whining and whinging about their “voices being censored” by the socialist techlords, don’t expect to see any numerosity or application of basic logic.Is there any examination of whether those on “the other side” of the political divide are being treated similarly? That perhaps some sites know their audiences don’t want a bunch of over-the-top political content, and thus take it down with abandon, regardless of which political perspective it’s coming from?Or how about acknowledging the possibility that sites might actually be applying their content moderation rules neutrally -- but that nutbaggery and offensive content isn’t evenly distributed across the political spectrum? And that there just might be, on balance, more of it coming from “the right?”But of course there’s not going to be any such acknowledgement. It’s just one-way bitching and moaning all the way down, accompanied with mewling about “other side” content that remains posted.Which is, of course, also merely anecdotal.Reposted from the Socially Awkward blog.

FBI Director Chris Wray's potshots at Apple during the joint press conference about the Pensacola Air Base shooting weren't the only ones delivered by a federal employee. Famous anti-encryptionist/current DOJ boss Bill Barr made even more pointed comments during his remarks, mostly glossing over the FBI's brilliant discovery that the shooter was linked to al Qaeda -- something al Qaeda had claimed shortly after the shooting took place.The DOJ never got the court battle it wanted. Its second attempt to talk a court into compelled decryption never gained momentum and FBI techs were eventually able to do the thing the DOJ couldn't make Apple do: access the phones' contents. Barr's comments had very little to do with the supposed matter at hand: the investigation of a shooting on a US military base. Instead, Barr gave perfunctory thanks to the hardworking men and women of the FBI before moving on to declaring Apple an enemy of the people, if not an actual enemy of the state.Here's the first smear, which insinuates device encryption is a criminal co-conspirator.

We've talked for many years now about the overreach of the GDPR and how its concepts of "data protection" often conflict with both concepts of free expression and very common every day activities. The latest example, first highlighted by Neil Brown, is that a Dutch court has said that a grandmother must delete photos of her grandkids that she posted to Facebook and Pinterest, because it violates the GDPR. There is, obviously, a bit more to the case, and it involves a family dispute involving the parents and the grandmother, but, still, the end result should raise all sorts of questions.And while many EU data protections folks are saying this was to be expected based on earlier EU rulings regarding the GDPR, it doesn't make the result any less ridiculous. As the BBC summarizes:

You would think that House Democrat leaders like Speaker Pelosi and Reps. Adam Schiff and Jerry Nadler, who helped lead the impeachment effort against President Trump, would leap at the chance to stop Trump and the FBI from conducting warrantless searches of Americans' internet browsing habits. Instead, they seem to be supporting it and are trying to scapegoat Rep. Zoe Lofgren -- who is trying to safeguard our internet surfing -- because she's dared to push for a fix to the law. At issue is the FISA renewal bill, in which Congress has decided to take the FBI's "backdoor searches" out of the backdoor and moved them around the front: explicitly allowing the FBI to go trawling through internet/browsing/search histories collected without a warrant by the NSA.As we've discussed, over in the Senate, Senator Ron Wyden and Steve Daines pushed for a pretty straightforward amendment to say that these searches should require a warrant (yes, the 4th Amendment alone should require that, but... ) and their amendment fell just one vote short. So even though significantly more than half of the Senate voted to require a warrant, the bill that passed out of the Senate does not require a warrant. The ball then moved to the House side, and you'd think that leadership there should just put in a similar amendment -- and, indeed, Rep. Lofgren had one ready to go. This shouldn't be a surprise. Lofgren has fought to end backdoor searches for years.However, a story in Politico argued that Lofgren's Amendment somehow threatened to "blow up" a well-orchestrated Congressional move to make sure the FBI could keep spying without a warrant. Dell Cameron, over at Gizmodo, breaks down just how ridiculous this whole story is, and how it appears that it's actually Speaker Pelosi and Rep. Schiff who want to let the FBI warrantless searches continue, and they've strong-armed Rep. Nadler into supporting this position (Nadler, who is terrible on copyright issues, usually is pretty good on civil liberties), while trying to pin any "blame" on Lofgren.Much of the story covers shenanigans to box out Lofgren back in February when she sought to add her version of the Wyden/Daines Amendment:

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The Wyden Siren is blaring. If you're unfamiliar, Senator Wyden has a pretty long history of what is generally known as Wyden Siren letters to the Director of National Intelligence. Wyden, one of the few Senators who has consistently shown a belief in protecting the civil liberties of Americans, has spent over a decade sending letters to the Director of National Intelligence that always ask questions about how often certain very sketchy surveillance techniques are being used. And, every time he does so, it tends to be a signal that the method in question is used to a massive degree, while the intelligence community is running around insisting that it's nothing to be concerned about. If we've learned one thing, however, in all these years, it's that when Wyden asks these types of questions, it means you'd best pay attention, and the activity in question is happening way more than anyone thought before.The latest, as first spotted by Zack Whittaker, is Wyden's letter to Acting Director of National Intelligence, Richard Grenell asking about how often the intel community and the FBI use their powers to spy on web surfing behavior:

For the better part of two years, Verizon has insisted that fifth-generation wireless (5G) would revolutionize everything. Simply by upgrading from 4G to 5G, Verizon repeatedly insisted, we'd usher forth a "fourth industrial revolution," resulting in smarter cars, smarter cities, and an endless array of innovation. 5G technology was so incredible, Verizon insisted, that it would also quickly usher forth incredible new cancer cures, allowing doctors to conduct remote heart surgery while wearing VR/AR headsets from the back of a rickshaw.Granted 5G was never actually that exciting. While an important update in terms of faster and more reliable mobile networks, the technology was rushed to market in such a way that coverage was sparse and overstated, 5G handsets were expensive and clunky, and service plans were equally pricey. Worse, recent studies have suggested that because the U.S. lacks a lot of the mid-band spectrum available in other countries (read: policy failure), 5G in the United States is going to be significantly slower and not all that much different than 4G (at least for a while).On the heels of one particularly damning 5G report on slow US speeds by OpenSignal, Verizon is now suddenly attempting to temper enthusiasm, noting that 5G at first won't be all that much different from existing 4G networks:

All things are cyber these days, including handy government tools meant to shield thin-skinned leaders from criticism. For a guy who goes around bragging about killing drug dealers, Philippines President Rodrigo Duterte seems oddly unable to handle being called what he is.

One of the dangers when we talk about esports and its rapid growth, particularly during this pandemic, is that those not in the know can see this as hobbyists touting their own hobby. It's understandable to some degree, what with this industry being both in its infancy stage and growing exponentially in speed. Still, while we've had several posts lately focusing on how esports is happily filling the void of traditional live sports during the COVID-19 pandemic, it is worth remembering that this isn't just a hobby any longer. It's an economy in and of itself.And that, to put a fine point on it, means jobs. Lots and lots of jobs, actually, and economic growth going along with it. NBC has an illuminating post on just how fast streaming companies are expanding to keep up with the esports demand.

Apple and Google have now released their update to their mobile operating systems to include a new capability for COVID-19 exposure notification. This new technology, which will support contact tracing apps developed by public health agencies, is technically impressive: it enables notifications of possible contact with COVID-positive individuals without leaking any sensitive personal data. The only data exchanged by users are rotating random keys (i.e., a unique 128-digit string of 0s and 1s) and encrypted metadata (i.e., the protocol version in use and transmitted power levels). Keys of infected individuals, but not their identities or their locations, are downloaded by the network upon a positive test with the approval of a government-sanctioned public health app.Despite being a useful tool in the pandemic arsenal and adopting state-of-the-art techniques to protect privacy, the Apple-Google system has drawn criticism from several quarters. Privacy advocates are dreaming up ways the system could be abused. Anti-tech campaigners are decrying “tech solutionism.” None of these critiques stands up to scrutiny.How the exposure notification API worksTo get a sense for how the Apple-Google exposure notification system works, it is useful to consider a hypothetical system involving raffle tickets instead of Bluetooth beacons. Imagine you were given a roll of two-part raffle tickets to carry around with you wherever you go. Each ticket has two copies of a randomly-generated 128-digit number (with no relationship to your identity, your location, or any other ticket; there is no central record of ticket numbers). As you go about your normal life, if you happen to come within six feet of another person, you exchange a raffle ticket, keeping both the ticket they gave you and the copy of the one you gave them. You do this regularly and keep all the tickets you’ve exchanged for the most recent two weeks.If you get infected with the virus, you notify the public health authority and share only the copies of the tickets you’ve given out—the public health officials never see the raffle tickets you’ve received. Each night, on every TV and radio station, a public health official reads the numbers of the raffle tickets it has collected from infected patients (it is a very long broadcast). Everyone listening to the broadcast checks the tickets they’ve received in the last two weeks to see if they’ve “won.” Upon confirming a match, an individual has the choice of doing nothing or seeking out a diagnostic test. If they test positive, then the copies of the tickets they’ve given out are announced in the broadcast the next night. The more people who collect and hand out raffle tickets everywhere they go, and the more people who voluntarily announce themselves after hearing a match in the broadcast, the better the system works for tracking, tracing, and isolating the virus.The Apple-Google exposure notification system works similarly, but instead of raffle tickets, it uses low-power Bluetooth signals. Every modern phone comes with a Bluetooth radio that is capable of transmitting and receiving data over short distances, typically up to around 30 feet. Under the design agreed to by Apple and Google, iOS and Android phones updated to the new OS, that have their Bluetooth radios on, and that have a public health contact tracing app installed will broadcast a randomized number that changes every 10 minutes. In addition, phones with contact tracing apps installed on them will record any keys they encounter that meet criteria set by app developers (public health agencies) on exposure time and signal strength (say, a signal strength correlating with a distance up to around six feet away). These parameters can change with new versions of the app to reflect growing understanding of COVID-19 and the levels of exposure that will generate the most value to the network. All of the keys that are broadcast or received and retained are stored on the device in a secure database.When an individual receives a positive COVID-19 diagnosis, she can alert the network to her positive status. Using the app provided by the public health authority, and with the authority’s approval, she broadcasts her recent keys to the network. Phones download the list of positive keys and check to see if they have any of them in their on-device databases. If so, they display a notification to the user of possible COVID-19 exposure, reported in five-minute intervals up to 30 minutes. The notified user, who still does not know the name or any other data about the person who may have exposed her to COVID-19, can then decide whether or not to get tested or self-isolate. No data about the notified user leaves the phone, and authorities are unable to force her to take any follow-up action.Risks to privacy and abuse are extremely lowAs global companies, Google and Apple have to operate in nearly every country around the world, and they need to set policies that are robust to the worst civil liberties environments. This decentralized notification system is exactly what you would design if you needed to implement a contact tracing system but were concerned about adversarial behavior from authoritarian governments. No sensitive data ever leaves the phone without the user’s express permission. The broadcast keys themselves are worthless, and cannot be tied back to a user’s identity or location unless the user declares herself COVID-positive through the public health app.Some European governments think Apple and Google’s approach goes too far in preserving user privacy, saying they need more data and control. For example, France has indicated that it will not use Apple and Google’s API and has asked Apple to disable other OS-level privacy protections to let the French contact tracing app be more invasive (Apple has refused). The UK has also said it will not use Apple and Google’s exposure notification solution. The French and British approach creates a single point of failure ripe for exploitation by bad actors. Furthermore, when the government has access to all that data, it is much more likely to be tempted to use it for law enforcement or other non-public health-related purposes, risking civil liberties and uptake of the app.Despite the tremendous effort the tech companies exerted to bake privacy into their API as a fundamental value, it is not enough for some privacy advocates. At Wired, Ashkan Soltani speculates about a hypothetical avenue for abuse. Suppose someone set up a video camera to record the faces of people who passed by, while also running a rooted phone—one where the user has circumvented controls installed by the manufacturer—that gave the perpetrator direct access to the keys involved. Then, argues Soltani, when a COVID-positive key was broadcast over the network, the snoop could be able to correlate it with the face of a person captured on camera and use that to identify the COVID-positive individual.While it is appropriate for security researchers like Soltani to think about such hypothetical attacks, the real-world damage from such an inefficient possible exploit seems dubious. Is a privacy attacker going to place cameras and rooted iPhones every 30 feet? And how accurate would this attack even be in crowded areas? In a piece for the Brookings Institution with Ryan Calo and Carl Bergstrom, Soltani doubles down, pointing out that “this ‘decentralized’ architecture isn’t completely free of privacy and security concerns” and “opens apps based on these APIs to new and different classes of privacy and security vulnerabilities.”Yet if “completely free of privacy and security concerns” is the standard, then any form of contact tracing is impossible. Traditional physical contact tracing involves public health officials interviewing infected patients and their recent contacts, collecting that information in centralized government databases, and connecting real identities to contacts. The Google-Apple exposure notification system clearly outperforms traditional approaches on privacy grounds. Soltani and his collaborators raise specious problems and offer no solution other than privacy fundamentalism.Skeptics of the Apple-Google exposure notification system point to a recent poll by the Washington Post that found “nearly 3 in 5 Americans say they are either unable or unwilling to use the infection-alert system.” About 20% of Americans don’t own a smartphone, and of those who do, around 50% said they definitely or probably would not use the system. While it’s too early to know how much each component of coronavirus response contributes to suppression, evidence from Singapore and South Korea suggests that technology can augment the traditional public health toolbox (even with low adoption rates). In addition, there are other surveys with contradictory results. According to a survey by Harris Poll, “71% of Americans would be willing to share their own mobile location data with authorities to receive alerts about their potential exposure to the virus.” Notably, cell phone location data is much more sensitive than the encrypted Bluetooth tokens in the Apple-Google exposure notification system.Any reasonable assessment of the tradeoff between privacy and effectiveness for contact tracing apps will conclude that if the apps are at all effective, they are overwhelmingly beneficial. For cost-benefit analysis of regulations, the Environmental Protection Agency has established a benchmark of about $9.5 million per life saved (other government agencies use similar values). By comparison, the value of privacy varies depending on context, but the range is orders of magnitude lower than the value of saving a life, according to a literature review by Will Rinehart.If we have any privacy-related criticism of the tech companies’ exposure notification API, it is that it requires the user to opt in by downloading a public health contact tracing app before it starts exchanging keys with other users. This is a mistake for two reasons. First, it signals that there is a privacy cost to the mere exchange of keys, which there is not. Even the wildest scenarios concocted by security researchers entail privacy risks from the API only when a user declares herself COVID-positive. Second, it means that the value of the entire contact tracing system is dependent on uptake of the app at all points in time. If the keys were exchanged all along, then even gradual uptake of the app would unlock value in the network that had built up even before users installed the app.The exposure notification API is part of a portfolio of responses to the pandemicSoltani, Calo, and Bergstrom raise other problems with contact tracing apps. They will result in false positives (notifications about exposures that didn’t result in transmission of the disease) and false negatives (failures to notify about exposure because not everyone has a phone or will install the app). If poorly designed (without verification from the public health authority), apps could allow individuals who are not COVID-positive to “cry wolf” and frighten a bunch of innocent people, a practice known in the security community as “griefing.” They want their readers to understand that the rollout of a contact tracing app using this API will not magically solve the coronavirus crisis.Well, no shit. No one is claiming that these apps are a panacea. Rather, the apps are part of a portfolio of responses that can together reduce the spread of COVID and potentially avoid the need for rolling lockdowns until a cure or vaccine is found (think of how many more false negatives there would be in a world without any contact tracing apps). We will still need to wear masks, supplement phone-based tracing methods with traditional contact tracing, and continue some level of distancing until the virus is brought fully under control. (For a point-by-point rebuttal of the Brookings article, see here from Joshua B. Miller).The exposure notification API developed by Google and Apple is a genuine achievement: it will enable the most privacy-respecting approach to contact tracing in history. It was developed astonishing quickly at a time when the world is in desperate need of additional tools to address a rapidly spreading disease. The engineers at Google and Apple who developed this API deserve our applause, not armchair second-guessing from unpleasable privacy activists.Under ordinary circumstances, we might have the luxury of interminable debates as developers and engineers tweaked the system to respond to every objection. However, in a pandemic, the tradeoff between speed and perfection shifts radically. In a viral video in March, Dr. Michael J. Ryan, the executive director of the WHO Health Emergencies Programme, was asked what he’s learned from previous epidemics and he left no doubt with his answer:

We're back! It's been a while since the last podcast, for obvious reasons, but today we've got a new episode following up on something we discussed with Mike Godwin in January: the Internet Society's proposed sale of the .org domain registry. That deal has since been cancelled, and some groups including the EFF assert that it showed ISOC can't be trusted to handle the registry, so this week Godwin joins us again to discuss what happened in more detail.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.

The excellent podcast Radiolab has been running some shorter (from its normal fare) "dispatches" from the pandemic that have been quite interesting, but I wanted to take a quick look at one recent such episode that is mostly a discussion between host Jad Abumrad and ER doctor Avir Mitra, who, in a prior life, had interned at Radiolab, in which Mitra plays some of the voice memos he's been recording for himself as he deals with being an ER doctor on the frontlines in a hospital in NYC, where the largest number of COVID-19 cases are happening.The whole episode is quite interesting, and they get into discussions about how doctors are recognizing that COVID-19 is not acting like other respiratory diseases, and they're finding all sorts of oddities -- like patients who should be passed out due to low blood oxygen levels acting like there's nothing wrong at all:

It should be no secret at all that the world is a different place than it was just a few months ago, thanks to the novel coronavirus and the disease it causes, COVID-19. We've been doing our best to deal with these trying times, as I hope you are as well. One thing we've noticed over the last few months is the role of technology in these crazy times, leading myself to often wonder what this kind of crisis would have looked like if even only a decade ago. As we were seeing more and more stories highlighting the amazing ways in which technology has been a huge (sometimes literal) lifesaver, we thought it would be worth launching a new "edition" on our site, focused on the role technology has played during this pandemic.We're not even entirely sure what sorts of stories we'll see in this section, but the intersection of the pandemic and the technology world is something that is worth exploring. Some of the stories out there about tech and COVID may be more obvious than others (really, how many stories can there be about how much Zoom everyone is using?), but we're going to try to dig a bit deeper, and explore the perhaps more unexpected ways in which technology is playing a role in our everyday lives under lockdown, as well as how technology is changing how businesses operate, and (perhaps most importantly) the role of technology in response to the pandemic itself (mitigating, treating, and -- most hopefully -- curing the disease).This, like so much of what we do, is an experiment and we're excited to see where it goes. The posts will appear right here on Techdirt, or you can check them out directly (as they are posted) in a new dedicated tab up top.We're excited that the Charles Koch Institute has agreed to be our launch sponsor for this new section of the site. As its Executive Director, Derek Johnson said: "We are excited to continue our support of Techdirt, especially during this unique moment when we're likely to see significant creative destruction and experimentation with new business models in digital media. Innovation has been a force for good throughout human history, a trend especially evident today. Telling the story of how American individuals and institutions are leveraging digital tools during the coronavirus pandemic will reinforce that, as a society, we remain open to exploring creative applications of technology and ingenuity."That perfectly sums up our general viewpoint on the importance of innovation in so many different aspects of our life -- and we expect it to be an educational journey to explore exactly how that innovative spirit plays out in helping get us through a massive pandemic.

One of the most frustrating aspects of discussing the internet, business models, and privacy is how many otherwise intelligent people continue to insist that Google and Facebook are "selling your data." It's a concept that is widely considered accurate, but has never been true. It's so ridiculous that it leads to silly Congressional exchanges between elected officials who are sure the tech companies are selling data, and the people from those companies themselves. Doing targeted advertising is not selling data. There are many, many things you can reasonably and accurately complain about regarding big internet companies and their use of data, but "selling" the data is not one of them.As a refresher: the way targeted advertising works is that an advertiser agrees to place an ad and uses whatever system to target those ads to particular groupings of people, as set up by the ad platform. So, if you want to advertise to grumpy bloggers in their mid-40s, you can find a way to have those ads show to that demographic. But the advertiser doesn't get any data from the platform about anyone. The companies are selling access to highly targeted demographics, but it's never been selling data.That doesn't mean there aren't other companies that do sell private data. There are. Lots of them. Data brokers, telcos, some ISPs, and even your local DMV have been caught selling your actual data. But for some reason, everyone wants to keep insisting that Google and Facebook also sell data, when they never have, and have always only sold targeted advertising in which the data only goes in one direction, and not back to the advertiser.Now, that's all background to the very interesting news that the NY Times is now moving away from using 3rd party advertising services.

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There are a variety of opinions concerning the Internet Archive's National Emergency Library in response to the pandemic. I've made it clear in multiple posts why I believe the freakout from some publishers and authors is misguided, and that the details of the program are very different than those crying about it have led you to believe. If you don't trust my analysis and want to whine about how I'm biased, I'd at least suggest reading a fairly balanced review of the issues by the Congressional Research Service.However, Kyle Courtney, the Copyright Advisor for Harvard University, has a truly masterful post highlighting not just why the NEL makes sense, but just how problematic it is that many -- including the US Copyright Office -- seem to want to move to a world of permission and licensing for culture that has never required such things in the past.

In recent weeks, the telecom sector and FCC allies have been busy trying to claim that the only reason the US internet still works is because the FCC killed net neutrality rules in 2017. That repeal, you'll recall, not only killed net neutrality protections, but the FCC's ability to hold giant telecom monopolies responsible for pretty much anything, be it obvious billing fraud or kicking disabled people offline during a crisis.The pandemic has been making it very clear that might not have been a great idea. It has also brought renewed attention to the fact that 42 million Americans lack access to any broadband whatsoever despite the US having thrown endless billions at US telecom monopolies. There are millions more who can't afford service because captured regulators have intentionally turned a blind eye to monopoly domination of the sector and the lack of competition, high prices, and terrible customer service that routinely results.To try and shift the focus away from, you know, reality... this new bumbling telecom-backed PR campaign has tried to change the subject. Namely, by insisting the only reason the US internet is working at all is because of our mindless, repeated pandering to telecom lobbyists. It's a missive that keeps popping up around the telecom policy ecosystem, including the AEI, Wall Street Journal, FCC Commissioners, and the FCC General Counsel:

The rollout of London's facial recognition cameras -- hundreds of them -- is being held up by unexpected developments. No, it's not the efforts of legislators, privacy activists, or some sudden concern about the unreliability of the tech. It's the global pandemic, which has taken away many of the facial features the cameras are looking for. (h/t Jeffrey Nonken in the TD Chat window)

Minnesota's top court has redefined the contours of the Third Party Doctrine for the betterment of the state's residents and visitors. [h/t FourthAmendment.com] The case deals with hotel/motel guest records, which have historically been given almost no legal protection.The argument against protection is that guests give up this information voluntarily to private companies. But you can't get a room without giving up this information, so it's not nearly as voluntary as the government portrays it. This came to head in the US Supreme Court back in 2015. The nation's Supreme Court decided -- very narrowly -- that a Los Angeles ordinance giving police officers warrantless access to guest records violated hotel owners' rights by not giving them any way to challenge demands (other than going to jail).The Minnesota Supreme Court does not rely on this decision despite reaching a conclusion that results in better protections for hotel guests. The difference between the two cases is the entity petitioning the court. In the US Supreme Court case, it was motel operators arguing warrantless access violated the Fourth Amendment, if not California's own Constitution. In this case, it's a guest arguing against the warrantless access to his records -- something the Minnesota court points out in a footnote. From the decision [PDF]:

A few years back, when the campaign to use FOSTA (then called SESTA) as a way to chip away at Section 230 of the Communications Decency Act by creating a misleading moral panic around "sex trafficking" was in full swing, we pointed out that it was really a precursor to trying to outlaw all pornography. I highlighted how a key group pushing for FOSTA, the National Center on Sexual Exploitation (NCOSE), didn't even bother to hide that its real target was outlawing all pornography. NCOSE, as we pointed out, started life as "Morality in Media" and only changed its name later when it realized that everyone was ignoring them acting like fussy prudish pearl-clutchers, and decided that if they pretended they were about "exploitation" it would give them more credibility.A key part of NCOSE's campaign is to lump porn, prostitution, and "sexual objectification in media" into the exact same bucket as child abuse and sex trafficking, even though there's a massive difference there. But it shouldn't come as any surprise that as NCOSE has now expanded to create an "International" (ICOSE) branch, it has done so by kicking off a silly program demanding that credit card companies stop working with porn sites like Pornhub. Of course, in true NCOSE fashion, it insists that porn sites are really engaged in sex trafficking and child abuse:

Over the last year or so, there’s been a surge of claims that Google, Twitter, YouTube, etc. are “biased against conservatives.”The starting point of this bad faith argument is a presumption that sites should be “neutral” about their content moderation decisions — decisions like which accounts Twitter suspends, how Google or Facebook rank content in search results or news feeds, or how YouTube promotes or obfuscates videos.More about this “neutrality” nonsense in a later post, but let’s move on with how this performative mewling works.So after setting up the strawman standard of “neutrality,” these self-styled “conservatives” turn to anecdotes showing that their online postings were unpublished, de-monetized, shadow-banned, or otherwise not made available to the widest audience possible.These anecdotes are, of course, offered as evidence that sites haven’t been “neutral.”And it’s not just some unfocused wingnut whining. This attitude is also driving a number of legislative proposals to amend and scale back CDA 230 — the law that makes the internet go.Conservative Senators like Josh Hawley, Ted Cruz, and Lindsey Graham — lawyers all, who surely know better — bitch and moan about CDA 230’s content moderation immunity. If only sites didn’t have this freebie, they say — well, then, we’d see some neutrality and fair treatment, yessiree.This is total bullshit.Sure, CDA 230(c)(2) makes sites immune from being sued for their content moderation decisions. But that’s only important to the extent it keeps people from treating “community guidelines” and “acceptable use policies” as matters of contract that can be sued over.Moderation? Curation? Promotion? All of that stuff is fully protected by the First Amendment.Really, I can’t stress this enough:CONTENT MODERATION DECISIONS ARE PROTECTED BY THE FIRST AMENDMENT.Eliminating content moderation protections from CDA 230 doesn’t change this fact.It can’t change this fact. Because CDA 230 is a statute and not the FIRST AMENDMENT.So why all the arguing for CDA 230 to be carved back? Some of it is surely just bad-faith angst about “big tech,” misplaced in a way that would unduly harm small, innovative sites. But a lot of of it is just knee-jerk reaction from those who actually think that removing the immunity-for-moderation found in CDA 230(c)(2) will usher in a glorious new world where sites will have to publish everything.Which, by the way, would be awful. Any site that just published virtually everything users posted (that’s the true “First Amendment standard”) would be an unusable hellhole. No site is going to do that — and, again . . .They don’t have to BECAUSE THE FIRST AMENDMENT PROTECTS CONTENT MODERATION DECISIONS.Reposted from the Socially Awkward blog.

Whatever ills there are in the world, the French government is pretty sure American tech companies should solve them. Or, at the very least, agree to be punished for failing to prevent the unpreventable.Having decided Google should pay French newspapers for sending them traffic, the French government is finally enacting its long-threatened "hate speech" law -- one that took all the bad/backfiring ideas from Germany's hate speech legislation, reformatting it slightly for French sensibilities.Officials claimed it was more difficult to remove anti-Semitic speech than it was to remove pirated content, which must have come as a surprise to several incumbent industries. The law falls into one of those "we'll know it when we see it" gray areas that tech companies will be forced to police. Facebook has already helpfully offered to forward user info to French authorities to ensure no online stupidity goes unpunished. And special interest groups have already offered their input, asking the government to treat things like the online disparagement of agriculture and livestock breeding as a criminal act.The law is now in place, reports Politico.

It's no secret that the French government seems to hate big internet companies. It's spent years attacking them from basically every angle -- they allow too much piracy, they don't protect privacy, they protect privacy too much, they don't censor enough, they censor too much. Often it really seems like the issue is that these companies are not French companies.But, really, can you think of any truly successful internet company that started in France? There are a few local to France, but has any really expanded beyond French borders?So, it's kind of hilarious that after years and years of attacking various internet companies, France now thinks that the government can build its own competitor to Airbnb:

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For years, the Copyright Office has been working on a report that is expected to be released sometime soon, about whether or not the DMCA's Section 512 "notice and takedown" regime needs to be changed. The big Hollywood and recording industry lobbyists have been gearing up to push for new rules, a la the European Copyright Directive, that put even more liability on intermediaries. Of course, what they really want is to force Google and Facebook to just hand them some cash because they've failed to adapt their business models while those two companies have thrived. Those legacy copyright-focused industries have already been pushing for things like mandatory licensing and "notice-and-staydown" rules, whereby if something that was taken down once gets re-uploaded, the hosting site becomes liable. Indeed, the industry already seems to have political support for some of these changes.What's odd, however, is how little attention people seem to be paying in most of these discussions to whether or not we need to fix the DMCA in the other direction -- to fix for the fact that the notice-and-takedown provisions of the DMCA are regularly used for censorship, even of news. Late last week, the Wall Street Journal had a very thorough article (possibly paywalled) detailing how they found hundreds of news articles that were taken out of Google's search due to what appears to be bogus DMCA takedowns. After contacting Google about this, the company said that it had found approximately 52,000 news articles that had been deleted from its index via bogus copyright notices:

On one end, you've got wireless carriers claiming that 5G is some type of cancer-curing miracle (it's not). On the other hand, we have oodles of conspiracy theorists, celebrities, and various grifters trying to claim 5G is some kind of rampant health menace (it's not). In reality, 5G's not actually interesting enough to warrant either position, but that's clearly not stopping anybody in the post-truth era.Baseless conspiracy theories about the health impact of 5G have gone next level during the pandemic. To the point where facts-optional nitwits are not only burning down cell towers in the UK, but putting razor blades and needles underneath protest posters on telephone poles (apparently you solve public health risks by... putting peoples' health at risk?). Now the Department of Homeland Security has had to issue warnings here in the States after several similar attacks were launched against US telecom infrastructure over the last few months:

The FBI held a very performative press conference to announce it had finally gained access to communications and data originating from the Pensacola Naval Air Station shooter. The coup, apparently, is that the FBI was able to -- after months of fighting iPhone encryption -- um... nail down attribution. Here's CNN's report on the FBI's press conference: