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Part 1 and Part 2 of this series have emphasized that treating today's free-speech ecosystem in "dyadic" ways—that is, treating each issue as fundamentally a tension between two parties or two sets of stakeholders—doesn't lead to stable or predictable outcomes that adequately protect free speech and related interests.As policymakers consider laws that affect platforms or other online content, it is critical that they consider Balkin's framework and the implications of this "new-school speech regulation" that the framework identifies. Failure to apply it could lead—indeed, has led in the recent past—to laws or regulations that indirectly undermine basic free expression interests.A critical perspective on how to think about free speech in the twenty-first century requires that we recognize the extent to which free speech is facilitated by the internet and its infrastructure. We also must recognize that free speech is in some new ways made vulnerable by the internet and its infrastructure. In particular, free speech is particularly enhanced by the lowering barriers to entry for speakers that the internet creates. At the same time, free speech is made vulnerable insofar as the internet and the infrastructure it provides for freedom of speech is subject to legal and regulatory action that may not be transparent to users. For example, a government may seek to block the administration of a dissident website's domain name, or may seek to block the use by dissident speakers of certain payment systems.There are of course non-governmental forces that may undermine or inhibit free speech—for example, the lowered barriers to entry make it easier for harassers or stalkers to discourage individuals from participation. This problem is in some sense an old problem in free-speech doctrine—the so-called "heckler's veto"—is a subset of this problem. The problem of harassment may give rise to users' complaints directly to the platform provider, or to demands that government regulate the platforms (and other speakers) more.Balkin explores the methods in which government can exercise both hard and soft power to censor or regulate speech at the infrastructure level. This can include direct changes of the law aimed at compelling internet platforms to censor or otherwise limit speech. This can include pressure that doesn't rise to the level of law or regulation, as when a lawmaker warns a platform that it must figure out how to regulate certain kinds of troubling expression because "[i]f you don't control your platform, we're going to have to do something about it." It can include changes in law or regulation aimed at increasing incentives for platforms to self-police with a heavier hand. Balkin characterizes the ways in which government can regulate speech of citizens and press indirectly, through pressure on or regulation of platforms and other intermediaries like payment systems, as "New School Speech Regulation."The important thing to remember is that government itself, although often asked to arbitrate issues that arise between internet platforms and users, is not always a disinterested party. For example, a government may have its own reasons for incentivizing platforms to collect more data (and to disclose the data it has collected), such as with National Security Letters. Because the government may regulate speech indirectly and non-transparently, there is a sense in which government cannot position itself on all issues as a neutral referee of competing interests between platforms and users. In a strong sense, the government itself may have its own interests that themselves may be in opposition to either user interests or platform interests or both.Toward a new FrameworkIt is important to recognize that entities at each corner of Balkin's "triangular" model may each have valid interests. For example, governmental entities may have valid interests in capturing data about users, or in suppressing or censoring certain (narrow) classes of speech, although only within a larger human-rights context in which speech is presumptively protected. End-users and traditional media companies share a presumptive right to free speech, but also other rights consistent with Article 19 of the ICCPR:

Important cases don't always happen with a lot of fanfare. It may be easy to follow what the US Supreme Court is up to, with its relatively small docket of high-profile matters, but plenty of other important cases get resolved by state and lower courts around the country with much less attention but just as much import.This decision by a California appeals court, Roe v. Halbig, is one such example, and happily the impact it stands to have is a good one. It isn't a showy decision declaring some new principle of liberty. Rather, it stands to quietly help ensure that codified protections for speech, and anonymous speech in particular, work as intended.We've written many times before about how important it is that anonymous speech be protected. Indeed, the US Supreme Court has found that the First Amendment includes the right to speak anonymously, because without that right a lot of important speech could not happen. But it's one thing to say that anonymous speech must be protected; it's another to make sure that anonymous online speakers can remain anonymous on a practical level. If it is too easy to unmask speakers, then their right to speak anonymously becomes illusory.To prevent the right to anonymous speech from becoming meaningless, it's important that discovery instruments, like subpoenas, intended to unmask speakers, not be vulnerable to being abused, especially by plaintiffs who don't have a legitimate need to unmask their critics. Because not only is a SLAPP suit chilling to speech, but so is a subpoena arising from a SLAPP suit that strips a speaker of the anonymous protection they counted on having when they spoke.This decision will help prevent the latter. To understand how, it helps to understand how these subpoenas get used.What typically happens is that a SLAPP is filed in another state (or country), likely one that does not have a robust anti-SLAPP law, and names a "John Doe" defendant. The plaintiff then issues a subpoena connected to the case targeted at whatever Internet platform (e.g., Twitter, Google, Facebook, Automattic/WordPress, Yelp, Glassdoor, etc.) or platforms may have information that would help identify who the speaker was. Obviously this information would be needed in order to maintain the lawsuit – you need to know who you are suing in order to actually sue them – but there is nothing requiring a lawsuit to continue once the identification is made. Sometimes SLAPP plaintiffs file lawsuits only as a vehicle to learn who their critic was because that's all they need to be able to make their critic regret speaking against them.If the platform is exposed to the jurisdiction of this other state, and thus subject to the subpoena, then all of that state's rules about subpoenas will govern what comes next. But if the California-based platform is not subject to the jurisdiction of this other state, then the plaintiff will need to "domesticate" it with the court of the county in California where the platform is located. It is generally easy to domesticate a subpoena; any California-licensed attorney can issue one on a special form provided by the California courts. It contains the same demand to produce information that the out-of-state subpoena had, only now the demand is governed by California law with its various speech-protecting rules.In general, a platform will try to notify the user that it has received the subpoena to unmask them. (This is an important step, which is why we've also been so critical of discovery rules preventing this notice.) Sometimes the platforms might even try to fight the subpoena themselves, which some recent California appellate cases said they have the right to do. It also means that when the courts consider whether to quash a subpoena they will use the Krinsky test, which is a relatively speaker-protective test used by courts to decide whether there is a sufficient basis to warrant a speaker being unmasked. Courts won't definitively decide the case at this stage, but per the test they will not allow a speaker to be identified if the plaintiff has not made at least a prima facie showing that the claims in the lawsuit may be valid. Speakers shouldn't lose their anonymity if there's no chance that the plaintiff might win.And then that's where this case comes in. Because if the motion to quash the subpoena is successful, the party who brought the motion gets to recover the fees and costs of doing so.The rule at issue here is much like the anti-SLAPP statute, which serves to both compensate a wronged speaker who has been forced to defend a lawsuit targeting their protected speech and also to deter plaintiffs from bringing these garbage lawsuits in the first place by making the plaintiffs pay the defendant's legal fees. But the anti-SLAPP statute only governs actual lawsuits [p. 13]. It doesn't have any effect on similarly meritless subpoenas arising from out-of-state SLAPPs. In order to prevent litigants from filing their lawsuits in other states (or countries) beyond the reach of the California anti-SLAPP law, and then using those meritless lawsuits as a basis to issue subpoenas to unmask their critics, in 2008 the California legislature inserted some language into its rules of civil procedure to address this situation. Section 1987.2 of the California Code of Civil Procedure reads:

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The FBI still hasn't updated its bogus "uncrackable phones" total yet, but that isn't stopping the DOJ from continuing its push for holes in encryption. Deputy AG Rod Rosenstein visited Georgetown University to give a keynote speech at its Cybercrime 2020 Conference. In it, Rosenstein again expressed his belief that tech companies are to blame for the exaggerated woes of law enforcement.

For a country that likes to talk about "being number one" a lot, that's sure not reflected in the United States' broadband networks, or the broadband maps we use to determine which areas lack adequate broadband or commpetition (resulting in high prices and poor service). Our terrible broadband maps are of course a feature not a bug; ISPs have routinely lobbied to kill any efforts to improve data collection and analysis, lest somebody actually realize the telecom market is a broken mono/duopoly whose dysfunction reaches into every aspect of tech.If you want to see our terrible broadband maps at work, you need only go visit the FCC's $300+ million broadband availability map, which is based on the Form 477 data collected from ISPs. If you plug in your address, you'll find that not only does the FCC not include prices (at industry behest), the map hallucinates speed and ISP availability at most U.S. addresses. Part of the problem is that the FCC declares an entire region "served" with broadband if just one home in a census tract has service. Again, ISPs fight efforts to reform this in a bid to protect the status quo.Only when states are jockeying for broadband subsidies is this problem even brought up in DC, so as states vie for $4.7 million in wireless broadband subsidies via the FCC's Mobility Fund Phase II, the problem has been seeing renewed attention.Back in August, Montana Senator Jon Tester took these criticisms to a new level, bluntly insisting the FCC's maps "stink" and that we really have "got to kick somebody's ass" to get the problem fixed. Like Tester, West Virginia Senator Joe Manchin also isn't impressed and has been trying to challenge the FCC's historically terrible coverage maps. This week Manchin again pointed out that our US broadband maps are terrible, while noting he was the only member of Congress to actually formally challenge them:

Earlier this week, UK politicians conveniently pounced on a US businessman to force him to turn over documents possibly containing info Parliament members had been unable to extract from Mark Zuckerberg about Facebook's data sharing. An obscure law was used to detain the visiting Six4Three executive, drag him to Parliament, and threaten him with imprisonment unless he handed over the documents MPs requested.The executive happened to have on him some inside info produced by Facebook in response to discovery requests. Six4Three is currently suing Facebook over unfair business practices in a California court. The documents carried by the executive had been sealed by the court, which means the executive wasn't allowed to share them with anyone… in the United States. But he wasn't in the United States, as gleeful MPs pointed out while forcing him to produce information it wanted from another tech company unwilling to set foot in London.It was all very strange, more than a little frightening, and completely bizarre. A lot of coincidences lined up very conveniently for UK legislators. The frightening part is it worked. This will only encourage Parliament to pull the same stunt the next time it thinks it can get information others have refused to hand over. Targeting third parties is an ugly way to do government business, especially when the UK government is attempting to obtain information from US companies. All bets are off once they're on UK soil, so traveling execs may want to leave sensitive info on their other laptop before landing at Heathrow.But there's also a chance Six4Three wanted to put this information in the hands of UK legislators. Call it "plausible deniability" or "parallel construction" (why not both?!), but the ridiculousness of the entire incident lends it an air of theater that probably isn't entirely unearned.Now there's more fuel for that conspiratorial bonfire. Court documents filed by Six4Three containing sensitive info about Facebook's API terms and the possible sale of user info made their way into the public domain. They were redacted to keep this sensitive information from being made public.Well, let me rephrase that: they were "redacted" in such a way all sensitive info could easily be read by anyone who opened the PDF. Sure, the black bars are there, but selecting the "redacted" text and pasting it anywhere that can handle text allows this information to be read.Cyrus Farivar of Ars Technica uploaded the redaction failure [PDF] -- an error first spotted by the Wall Street Journal. The first redaction, which precedes several fully-redacted pages, contain the following info -- stuff Facebook would probably liked to have stayed obscured. (The failed redaction is in bold.)

Way back in 2014, after years of waging a prolonged war on let's play streamers and game reviewers, Nintendo introduced a bureaucratic mess of a policy that would eventually become its "Creators Program." After being insanely heavy-handed towards streamers for years, the new program, that would allow for game streaming so long as the program rules were followed, initially was thought to be a major step forward for Nintendo. All too quickly, however, the whole thing devolved into a bureaucratic mess that saw applicants not getting responses to applications, and the revelation that Nintendo had some unethical rules for just how positive about Nintendo's games streamers had to be to remain in the program. Many of the bigger names in streaming simply swore off doing anything with Nintendo games, while others attempted to soldier on until Nintendo suddenly revised the program to essentially ban live-streams, the lifeblood of streamers. That last bit occurred roughly a year ago, rendering confusion and anger at Nintendo in the streaming space.Well, it seems like Nintendo has realized what a mess all of this had become, as the company has now announced that the Creators Program is now no more, replaced with a much simpler set of guidelines of what will keep streamers on the right side of Nintendo's legal dogs.

A couple of months ago, a consent decree drastically restructured Philadelphia's severely-abused asset forfeiture program. It didn't eliminate the program entirely, but it did eliminate the small-ball cash grabs favored by local law enforcement. The median seizure by Philly law enforcement is only $178, but it adds up to millions if you do it all the time. Small seizures like this now need to be tied to arrests or the property needs to be used as evidence in a criminal case.Other restraints will hopefully eliminate local law enforcement's worst practices -- like seizing someone's house because their kid sold $40 of drugs to a police informant. It also should slow down seizures of whatever's in a person's pockets by forbidding forfeitures of under $250 entirely.The consent decree obviously won't solve everything, and part of the problem is the consent decree itself. It forbids seizures of less than $1,000 unless the property is evidence in an ongoing case. Guess what local law enforcement is doing.

Back in August, the DOJ headed to court, hoping to obtain some of that sweet sweet anti-encryption precedent. Waving around papers declaring an MS-13 gang conspiracy, the DOJ demanded Facebook break encryption on private Messenger messages and phone calls so the government could eavesdrop. Facebook responded by saying it couldn't do that without altering -- i.e., breaking -- Messenger's underlying structure.Not that breaking a communications platform would give the FBI any sleepless nights. Worthless encryption is better than good encryption when it comes to demanding the content of communications or, as in this case, operating as the unseen man-in-middle when suspected gang members chatted with each other.Unfortunately (for the FBI), this ended in a demurral by the federal court. The details of the court's decision are, just as unfortunately, unknown. Reuters was able to obtain comments from "insiders familiar with the case," but the public at large is still in the dark as to how all of this turned out.The EFF and ACLU are hoping to change that.

In Part 1 of this series, I gave attention to law professor Jack Balkin's model of "free speech as a triangle," where each vertex of the triangle represents a group of stakeholders. The first vertex is government and intergovernmental actors. The second is internet platform and infrastructure providers, and the third is users themselves. This "triangle" model of speech actors is useful because it enables us to characterize the relationships among each set of actors, thereby illuminating how the nature of regulation of speech has changed and become more complicated than it used to be.Take a look again at Balkin's Figure 1.Although it's clearer when we visualize all the players in the free-speech regulation landscape that a "free-speech triangle" at least captures more complexity than the usual speakers-against-the-government or speakers-against-the-companies or companies-against-the-government models, the fact is that our constitutional law and legal traditions predispose us to think of these questions in binary rather than, uh, "trinary" terms. We've been thinking this way for centuries, and it's a hard habit to shake. But shaking the binary habit is a necessity if we're going to get the free-speech ecosystem right in this century.To do this we first have to look at how we typically reduce these "trinary" models to the binary models we're more used to dealing with. With three classes of actors, there are three possible "dyads" of relationships: user–platform, government–platform, and user–government.(a) Dyad 1: User complaints against platforms (censorship and data gathering)Users' complaints about platforms may ignore or obscure the effects of government demands on platforms and their content-moderation policies.Typically, public controversies around internet freedom of expression are framed by news coverage and analysis as well as by stakeholders themselves, as binary oppositions. If there is a conflict over content between (for example) Facebook and a user, especially if it occurs more than once, that user may conclude that that her content was removed for fundamentally political reasons. This perception may be exacerbated if the censorship occurred and was framed as a violation of the platform's terms of service. A user subject to such censorship may believe that her content is no more objectionable than that of users who weren't censored, or that her content is being censored while content that is just as heated, but representing a different political point of view, isn't being censored. Naturally enough, this outcome seems unfair, and a user may infer that the platform as a whole is politically biased against those of her political beliefs. It should be noted that complaints about politically motivated censorship apparently come from most and perhaps all sectors.A second complaint from users may derive from data collection by a platform. This may not directly affect the direct content of a user's speech, but it may affect the kind of content she encounters, which, when driven by algorithms aimed increasing her engagement on the platform, may serve not only to urge her participation in more or more commercial transactions, but also to "radicalize" her, anger her, or otherwise disturb her. Even if an individual may judge herself more or less immune from algorithmically driven urges to view more and more radical and radicalizing content, she may be disturbed by the radicalizing effects that such content may be having on her culture generally. (See, e.g., Tufekci, Zeynep, "YouTube, the Great Radicalizer.") And she may be disturbed at how an apparently more radicalized culture around her interacts with her in more disturbing ways.Users may be concerned both about censorship of their own content (censorship that may seem unjustified) and platforms' use of data, which may seem to be designed to manipulate them or else manipulate other people. In response, users (and others) may demand that platforms track bad speakers or retain data about who bad speakers are (e.g., to prevent bad speakers from abandoning "burned" user accounts and returning with new accounts to create the same problems) as well as about what speakers say (so as to police bad speech more). But there are two likely outcomes of a short-term pursuit of pressuring platforms to censor more or differently, or to gather less data (about users themselves) or to gather more data (about how users' data are being used). One obvious, predictable outcome of these pressures is that, to the extent the companies respond to them, governments may leverage platforms' responses to user complaints in ways that make it easier for government to pressure platforms for more user content control (not always with the same concerns that individual users have) or to provide user data (because governments like to exercise the "third-party" doctrine to get access to data that users have "voluntarily" left behind on internet companies' and platform providers' services.(b) Dyad 2: Governments' demands on platforms (content and data)Government efforts to impose new moderation obligations on platforms, even in response to user complaints, may result in versions of the platforms that users value less, as well as more pressure on government to intervene further.In the United States, internet platform companies (like many other entities, including ordinary blog-hosting servers and arguably bloggers themselves) will find that their First Amendment rights are buttressed and extended by Section 230 of the Communications Decency Act, which generally prohibits content-based liability for those who reproduce on the internet content that is originated by others. Although a full discussion of the breadth and the exceptions to Section 230—which was enacted as part of the omnibus federal Telecommunications Act reform in 1996—is beyond the scope of this particular paper, it is important to underscore that Section 230 extends the scope of protection for "intermediaries" more broadly than First Amendment case law alone, if we are to judge by relevant digital-platform cases prior to 1996, might have done. But the embryonic case law in those early years of the digital revolution seemed to be moving in a direction that would have resulted in at least some First Amendment protections for platforms consistent with principles that protect traditional bookstores from legal liability for the content of particular books. One of the earliest cases prominent cases concerning online computer services, Cubby v. CompuServe (1991), drew heavily on a 1959 Supreme Court case, Smith v. California, that established that bookstores and newsstands were properly understood to deserve First Amendment protections based on their importance to the distribution of First Amendment-protected content.Section 230's broad, bright-line protections (taken together with the copyright-specific protections for internet platforms created by the Digital Millennium Copyright Act in 1998) are widely interpreted by legal analysts and commentators as having created the legal framework that gave rise to internet-company success stories like Google, Facebook, and Twitter. These companies, as well as a raft of smaller, successful enterprises like Wikipedia and Reddit, originated in the United States and were protected in their infancy by Section 230. Even critics of the platforms—and there are many—typically attribute the success of these enterprises to the scope of Section 230. So it's no great surprise to discover that many and perhaps most critics of these companies (who may be government actors or private individuals) have become critics of Section 230 and want to repeal or amend it.In particular, government entities in the United States, both at the federal level and at the state level, have sought to impose greater obligations on internet platforms not merely to remove content that is purportedly illegal, but also to prevent that content from being broadcast by a platform in the first place. The notice-and-takedown model of the Digital Millennium Copyright Act of 1998, which lends itself to automated enforcement and remedies to a higher degree than non-copyright-related content complaints, is frequently suggested by government stakeholders as a model for how platforms ought to respond to complaints about other types of purportedly illegal content, including user-generated content. The fact that copyright enforcement, as distinct from enforcement other communications-related crimes or private causes of action, is comparatively much simpler than most other remedies in communications law, is a fact that is typically passed over by those who are unsympathetic to today's social-media landscape.Although I'm focusing here primarily on U.S. government entities, this tendency is also evident among the governments of many other countries, including many countries that rank as "free" or "partly free" in Freedom House's annual world freedom report. It may be reasonably asserted that the impulse of governments to offload the work of screening for illegal (or legal but disturbing) content is international. The European Union, for example, is actively exploring regulatory schemes that implicitly or explicitly impose content-policing norms on platform companies and that impose quick and large penalties if the platforms fail to comply. American platforms, which operate internationally, must abide by these systems at least with regard to their content delivery within EU jurisdictions as well as (some European regulators have argued) anywhere else in the world.Added to governments' impulse to impose content restrictions and policing obligations on platforms is governments' hunger for the data that platforms collect. Not every aspect of the data that platforms like Google and Facebook and Twitter collect on users is publicly known, nor have the algorithms (decision-making processes and criteria implemented by computers) that the platforms use to decide what content may need monitoring, or what content users might prefer, being generally published. The reasons some aspects of the platforms' algorithmic decision-making may be generally reduced to two primary arguments. First, the platforms' particular choices about algorithmically selecting and serving content, based on user data, may reasonably classed as trade secrets, so that if they were made utterly public a competitor could free-ride on the platforms' (former) trade secrets to develop competing products. Second, if platform algorithms are made wholly public, it becomes easier for anyone—ranging from commercial interests to mischievous hackers and state actors—to "game" content so that it is served to more users by the platform algorithms.Governments' recognition that protections for platforms has made it easier for the platforms to survive and thrive may wish to modify the protections they have granted, or to impose further content-moderation obligations on platforms as a condition of statutory protections. But even AI-assisted moderation measures will necessarily be either post-hoc (which means that lots of objectionable content will be public before the platform curates it) or pre-hoc (which means that platforms will become gatekeepers of public participation, shoehorning users into a traditional publishing model or an online-forum model as constrained by top editors as the early version of the joint Sears-IBM service Prodigy was).(c) Dyad 3: People (and traditional press) versus government.New, frequently market-dominant internet platforms for speakers create new government temptations and capabilities to (i) surveil online speech, (ii) leverage platforms to suppress dissident or unpopular speech or deplatform speakers, and/or (iii) employ or compel platforms to manipulate public opinion (or to regulate or suppress manipulation).It's trivially demonstrable that some great percentage of complaints about censorship in open societies is grounded in individual speakers' or traditional publishers' complaints that government is acting to suppress certain kinds of speech. Frequently the speech in question is political speech but sometimes it is speech of other kinds (e.g., allegedly defamatory, threatening, fraudulent, or obscene) of speech. This dyad is, for the most part, the primary subject matter of traditional First Amendment law. It is also a primary focus of international free-expression law where freedom of expression is understood to be guaranteed by national or international human-rights instruments (notably Article 19 of the International Covenant on Civil and Political Rights).But this dyad has been distorted in the twenty-first century, in which, more often than not, troubling political speech or other kinds of troubling public speech are normally mediated by internet platforms. It is easier on some platforms, but by no means all platforms, for speakers to be anonymous or pseudonymous. Anonymous or pseudonymous speech is not universally regarded by governments as a boon to public discourse, and frequently governments will want to track or even prosecute certain kinds of speakers. Tracking such speakers was difficult (although not necessarily impossible) in the pre-internet era of unsigned postcards and ubiquitous public telephones. But internet platforms have created new opportunities to discover, track, and suppress speech as a result of the platforms' collection of user data for their own purposes.Every successful internet platform that allows users to express themselves has been a target of government demands for disclosure of information about users. In addition, internet platforms are increasingly the target of government efforts to mandate assistance (including the building of more surveillance-supportive technologies) in criminal-law or national-security investigations. In most ways this is analogous to the 1994 passage of CALEA in the United States, which obligated telephone companies (that is, providers of voice telephony) to build technologies that facilitated wiretapping. But a major difference is that the internet platforms more often than not capture far more information about users than telephone companies traditionally had done. (This generalization to some extent oversimplifies the difference, given that there is frequently convergence between the suites of services that internet platforms and telephone companies—or cable companies—now offer their users.)Governmental monitoring may suppress dissenting (or otherwise troubling) speech, but governments (and other political actors, such as political parties) may also use internet platforms to create or potentiate certain kinds of political speech in opposition to the interests of users. Siva Vaidhyanathan documents particular uses of Facebook advertising in ways that aimed to achieve political results, including not just voting for an approved candidate but also dissuasion of some voters from voting at all, in the 2016 election.As Vaidhyanathan writes: "Custom Audiences is a powerful tool that was not available to President Barack Obama and Governor Mitt Romney when they ran for president in 2012. It was developed in 2014 to help Facebook reach the takeoff point in profits and revenue." Plus this: "Because Facebook develops advertising tools for firms that sell shoes and cosmetics and only later invites political campaigns to use them, 'they never worried about the worst-case abuse of this capability, unaccountable, unreviewable political ads,' said Professor David Carroll of the Parsons School of Design."There are legitimate differences of opinion regarding the proper regime for regulation of political advertising, as well as regarding the extent to which regulation of political advertising can be implemented consistent with existing First Amendment precedent. It should be noted, however, that advertising of the sort that Vaidhyanathan discusses raises issues not only of campaign spending (although in 2016, at least, the spending on targeted Facebook political advertising of the "Custom Audiences" variety seems to have been comparatively small) as of transparency and accountability. Advertising that's micro-targeted and ephemeral is arguably not accountable to the degree that an open society should require. There will be temptations for government actors to use mechanisms like "Custom Audiences" to suppress opponents' speech—and there also will be temptations by government to limit or even abolish such micro-targeted instances of political speech.What is most relevant here is that the government may address temptations either to employ features like "Custom Audiences" or to suppress the use of those features by other political actors in non-transparent or less formal ways, (e.g., through the "jawboning" that Jack Balkin describes in "New School Speech Regulation" paper). Platforms—especially market-dominant platforms that, as a function of their success and dominance, may be particularly targeted on speech issues—may feel pressured to remove dissident speech in response to government "jawboning" or other threats of regulation. And, given the limitations of both automated and human-based filtering, a platform that feels compelled to respond to such governmental pressure is almost certain to generate results that are inconsistent and that give rise to further dissatisfaction, complaints, and suspicions on the part of users—not just the users subject to censorship or deplatforming, but also users who witness such actions and disapprove of them.Considered both separately and together, it seems clear that each of the traditional "dyadic" models of how to regulate free speech tend to focus on two vertices of the free-speech triangle while overlooking a third vertex, whose stakeholders may intervene or distort or exploit or be exploited by outcomes of conflicts of the other two stakeholder groups. What this suggests is that no "dyadic" conception of the free-speech ecosystem is sufficiently complex and stable enough to protect freedom of expression or, for that matter, citizens' autonomy interests in privacy and self-determination. This leaves us with the question of whether it is possible to direct our law and policy in a direction that takes into account today's "triangular" free-speech ecosystem in ways that provide stable, durable, expansive protections of freedom of speech and other valid interests of all three stakeholder groups. That question is the subject of Part 3 of this series.Mike Godwin (@sfmnemonic) is a distinguished senior fellow at the R Street Institute.

Missouri's incoming Senator, Josh Hawley, has been getting some attention as being a "fierce critic" of big internet companies. Specifically, in his role as Missouri State Attorney General, he famously launched an investigation into Google, sending a subpoena that had many of the same hallmarks found in the subpoena Mississippi's Attorney General Jim Hood sent to Google years earlier, that was later revealed to have been drafted by MPAA lawyers as part of their Project Goliath, in which the MPAA deliberately used a NY Times article about using state AGs to attack competitors to do just that. As a reminder, a judge eventually found that subpoena to be in bad faith and Hood withdrew it.Still, given that Hawley specifically campaigned on being willing to "stand up to big tech", it's really no surprise that he's now going around yelling about Twitter temporarily suspending a user (who happens to play on the same red/blue team as Hawley). The problem is that Hawley -- who as a lawyer, Attorney General, and incoming Senator should be expected to know the law -- actually gets its entirely backwards.

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Trust no one. The DEA impersonates medical board investigators. Police pretend to be people's friends. FBI agents pretend to be journalists. And, in this case, federal investigators pretended they could help an alleged scammer trace a FedExed payment. Joseph Cox of Motherboard has more details, taken from recently unsealed FBI warrant applications.

ESPN has long personified the cable and broadcast industry's tone deafness to cord cutting and TV market evolution. Executives not only spent years downplaying the trend as something only poor people do, it sued companies that attempted to offer consumers greater flexibility in how video content was consumed. ESPN execs clearly believed cord cutting was little more than a fad that would simply stop once Millennials started procreating, and ignored surveys showing how 56% of consumers would ditch ESPN in a heartbeat if it meant saving the $8 per month subscribers pay for the channel.The penalty for ESPN's failure to adapt has been severe. Disney's recent earnings revealed that ESPN lost another 2 million regular viewers this year. And while ESPN still has 86 million regular viewers, that's a 14 million regular viewer dip from the 100 million regular viewers it enjoyed in 2011. Those 14 million lost users generated around $1.44 billion per year for the "worldwide leader in sports," which is still saddled with the severe costs of set redesigns and sports licensing contracts the company struck while it was busy not seeing the massive locomotive of market change bearing down upon it.While some of these wounds are inevitable due to shifting markets, many were self-inflicted. ESPN execs often tried to shoot the messengers instead of listening to the message. And once the damage was done, ESPN decided to fire hundreds of longstanding sports journalists and support personnel, but not the executives like John Skipper (since resigned for other reasons) whose myopia made ESPN's problems that much worse in the first place.Ultimately, ESPN and Disney figured out that streaming was the future. In response, it launched a new direct-to consumer app dubbed ESPN+ that sort of provided users what they wanted, but not really. The $5 per month service basically took much of the fare available on ESPN's lesser-watched channels and offered it over the internet. But there were caveats; such as the service didn't really offer users what they really wanted (just a streaming version of ESPN's core channel) unless you subscribe to traditional cable, part of the "TV Everywhere" mindset cable execs can't seem to move past.While ESPN's losses are the most notable, other Disney properties continue to see sharp viewership declines in the cord cutting era:

As we have been discussing over the past few months, Australia has been considering updating its copyright law from one which does site-blocking with judicial oversight to one which does site-blocking, mirror-blocking without judicial oversight, search results blocking, and expands the definition of the types of sites to be blocked from those with the primary "purpose" of infringement to those with the primary "effect" being infringement. These changes came with concerns in tow, both from government officials and tech companies, and it's understandable why. Any time the government looks to lessen its own oversight in the interest of making it easier for corporate interests to censor the internet for the common citizen, it creates a situation practically begging for abuse with the principal effect being dampening the primary purpose of the internet as a communications tool. The concerns raised over this change in the law focused on those very things, while also highlighting how the copyright industries have been touting the site-blocking already in place as a success.But, as is too often the case, the Australian government has hand-waved those concerns with claims that nebulous "safeguards" are in place to prevent abuse and recommended going ahead with the changes to the law.

Efforts to reverse the FCC's historically unpopular attack on net neutrality using the Congressional Review Act (CRA) have been stuck in neutral for several months, but activists are backing one last push in a bid to get the uphill effort over the hump.The CRA lets Congress reverse a regulatory action with a simple majority vote in the Senate and the House (which is how the GOP successfully killed broadband consumer privacy protections last year). And while the Senate voted 52 to 47 back in May to reverse the FCC's attack on net neutrality, companion efforts to set up a similar vote in the House haven't gained much traction as the clock continues to tick. A discharge petition needs 218 votes to even see floor time, and another 218 votes to pass the measure.But the needed votes have lingered at around 172 for months, split (quite stupidly, given broad public support) along strict partisan lines.Hoping to push the effort over the line and drum up the needed votes ahead of the December 10 CRA deadline, net neutrality activist groups like Fight for the Future are holding one last online protest on Thursday, November 29. This time around they've drummed up the support of numerous musicians and celebrities in the hope of getting the attention of a public that's clearly weary of the entire debate:

So just a few weeks after a bunch of countries (and companies and organizations) signed onto a weird and mostly empty Paris Call for Trust and Safety in Cyberspace, a group of nine countries -- Argentina, Belgium, Brazil, Canada, France, Ireland, Latvia, Singapore and the UK, have declared themselves the "International Grand Committee on Disinformation and Fake News" and signed onto a Principles of the Law Governing the Internet. If that list of countries sound familiar, that's because it's the same list of countries that put on that grandstanding inquisition of Facebook that produced fake news in its own way, by falsely claiming that Facebook had discovered Russians extracting 3 billion data points via its API back in 2014 (it wasn't Russia, it was Pinterest; it wasn't 3 billion, it was 6 million; it wasn't abuse of the API, but using it correctly).The Declaration makes some grand pronouncements:

When we argue how to respond to complaints about social media and internet companies, the resulting debate seems to break down into two sides. On one side, typically, are those who argue that it ought to be straightforward for companies to monitor (or censor) more problematic content. On the other are people who insist that the internet and its forums and platforms—including the large dominant ones like Facebook and Twitter—have become central channels of how to exercise freedom of expression in the 21st century, and we don't want to risk that freedom by forcing the companies to be monitors or censors, not least because they're guaranteed to make as many lousy decisions as good ones.By reflex and inclination, I usually have fallen into the latter group. But after a couple of years of watching various slow-motion train wrecks centering on social media, I think it's time to break out of the bipolar disorder that afflicts our free-speech talk. Thanks primarily to a series of law-review articles by Yale law professor Jack Balkin, I now believe free-speech debates no longer can be simplified in terms of government-versus-people, companies versus people, or government versus companies. No "bipolar" view of free speech on the internet is going to give us the complete answers, and it's more likely than not to give us wrong answers, because today speech on the internet isn't really bipolar at all—it's an "ecosystem."Sometimes this is hard for civil libertarians, particularly Americans, to grasp. The First Amendment (like analogous free-speech guarantees in other democracies) tends to reduce every free-speech or free-press issue to people-versus-government. The people spoke, and the government sought to regulate that speech. By its terms, the First Amendment is directed solely at averting government impulses to censor against (a) publishers' right to publish controversial content and/or (b) individual speakers' right to speak controversial content. This is why First Amendment cases most commonly are named either with the government as a listed party (e.g., Chaplinsky v. New Hampshire) or a representative of the government, acting in his or her government role as a government official, as a named party (e.g. Attorney General Janet Reno in Reno v. ACLU).But in some sense we've always known that this model is oversimplified. Even cases in which the complainant was nominally a private party still involved government action in the form of enactment of speech-restrictive laws that gave rise to the complaint. In New York Times Inc. v. Sullivan, the plaintiff, Sullivan, was a public official, but his defamation case against the New York Times was grounded in his reputational interest as an ordinary citizen. In Miami Herald Publishing Company v. Tornillo, plaintiff Tornillo was a citizen running for a state-government office who invoked a state-mandated "right of reply" because he had wanted to compel the Herald to print his responses to editorials that were critical of his candidacy. In each of these cases, the plaintiff's demand did not itself represent a direct exercise of government power. The private plaintiffs' complaints were personal to them. Nevertheless, in each of these cases, the role of government (in protecting reputation as a valid legal interest, and in providing a political candidate a right of reply) was deemed by the Supreme Court to represent exercises of governmental power. For this reason, the Court concluded that these cases, despite their superficial focus on a private plaintiff's cause of action, nonetheless fall under the scope of the First Amendment. Both newspaper defendants won their Supreme Court appeals.By contrast, private speech-related disputes between private entities, such as companies or individuals, normally are not judged as directly raising First Amendment issues. In the internet era, if a platform like Facebook or Twitter chooses to censor content or deny service to a subscriber because of (an asserted) violation of its Terms of Service, or if a platform like Google chooses to delist a website that offers pharmaceutical drugs in violation of U.S. law or the law of other nations, any subsequent dispute is typically understood, at least initially, as a disagreement that does not raise First Amendment questions.But the intersection between governmental action and private platforms and publishers has become both broader and blurrier in the course of the last decade. Partly this is because some platforms have become primary channels of communication for many individuals and businesses, and some of these platforms have become dominant in their markets. It is also due in part to concern about various ways the platforms have been employed with the goal of abusing individuals or groups, perpetrating fraud or other crimes, generating political unrest, or causing or increasing the probability of other socially harmful phenomena (including disinformation such as "fake news.")To some extent, the increasing role of internet platforms, including but not limited to social media such as Facebook and Twitter in Western developed countries, as one of the primary media for free expression was predictable. (For example, in Cyber Rights: Defending Free Speech in the Digital Age (Times Books, 1998), I wrote this: "Increasingly, citizens of the world will be getting their news from computer-based communications-electronic bulletin boards, conferencing services, and networks-which differ institutionally from traditional print media and broadcast journalism." See also "Net Backlash = Fear of Freedom," Wired, August 1995: "For many journalists, 'freedom of the press' is a privilege that can't be entrusted to just anybody. And yet the Net does just that. At least potentially, pretty much anybody can say anything online - and it is almost impossible to shut them up.")What was perhaps less predictable, prior to the rise of market-dominant social-media platforms, is that government demands regarding content may result in "private governance" (where market-dominant companies become the agents of government demands but implement those demands less transparently than enacted legislation or recorded court cases do). What this has meant is that individual citizens concerned about exercising their freedom of expression in the internet era may find that exercising one's option to "exit" (in the Albert O. Hirschman sense) may impose great costs.At the same time, lack of transparency about platform policy (and private government) may make it difficult for individual speakers to interpret what laws or policies the censorship of their content (or the exclusion of themselves or others) in ways that enable them to give effective "voice" to their complaints. For example, they may infer that their censorship or "deplatforming" represents a political preference that has the effect of "silencing" their dissident views, which in a traditional public forum might be clearly understood as protected by First Amendment-grounded free-speech principles.These perplexities, and the current public debates about freedom of speech on the internet, create the need for a reconsideration of the internet free speech not as a simplistic dyad, or as a set of simplistic, self-contained dyads, but instead as an ecosystem in which decisions in one part may well lead to unexpected, undesired effects in other parts. A better approach would be to consider internet freedom of expression "ecologically," to consider expression on the internet an "ecosystem," and to think about various legal, regulatory, policy, and economic choices as "free-speech environmentalists," with the underlying goal of protecting the internet free-speech ecosystem in ways that protect individuals' fundamental rights.Of course, individuals have more fundamental rights than freedom of expression. Notably, there is an international consensus that individuals deserve, inter alia, some kind of rights to privacy, although, as with expression, there is some disagreement about what the scope of privacy rights should be. But changing the consensus paradigm of freedom of expression so that it is understood as an ecosystem not only will improve law, regulation, and policy regarding free speech, but also will provide a model that possibly may be fruitful in other areas, like privacy.In short, we need a theory of free speech that takes into account complexity. We need to build consensus around that theory so that stakeholders with a wide range of political beliefs nevertheless share a commitment to the complexity-accommodating paradigm. In order to do this, we need to begin with a taxonomy of stakeholders. Once we have the taxonomy, we need to identify how the players interact with one another. And ultimately we need some initiatives that suggest how we may address free-speech issues in ways that are not shortsighted, reactive, and reductive, but forward-looking, prospective, and inclusive.The internet ecosystem: a taxonomy.Fortunately, Jack Balkin's recent series of law-review articles has given us a head start on building that theory, outlining the complex relationships that now exist among citizens, government actors, and companies that function as intermediaries. These paradigm-challenging articles culminate in a synthesis is reflected in his 2018 law-review article "Free Speech is a Triangle."Balkin rejects simple dyadic models of free speech. Because an infographic is sometimes worth 1000 words, it may be most convenient to reproduce Balkin's diagram of what he refers to as a "pluralistic" (rather than "dyadic") model of free speech. Here it is:Balkin recognizes that the triangle may be taken as oversimplifying the character of particular entities within any set of parties at a "corner." For example, social-media platforms are not the same things as payment systems, which aren't the same things as search engines or standard-setting organizations. Nevertheless, entities in any given corner may have roughly the same interests and play roughly the same roles. End-users are not the same things as "Legacy Media" (e.g., the Wall Street Journal or the Guardian), yet both may be subject to "private governance" from internet platforms or subject to "old-school speech regulation" (laws and regulation) imposed by nation-states or treaties. ("New-school speech regulation" may arise when governments compel or pressure companies to exercise speech-suppressing "private governance.")Certainly some entities within this triangularized model may be "flattened" in the diagram in ways that don't reveal the depth of their relationships to other parties. For example, a social-media company like Facebook may collect vastly more data (and use it in far more unregulated ways) than a payment system (and certainly far more than a standard-setting organization). Balkin addresses the problem of Big Data collection by social-media companies and others—including the issue of how Big Data may be used in ways that inhibit or distort free speech-- by suggesting that such data-collecting companies be considered "information fiduciaries" with obligations that may parallel or be similar to those of more traditional fiduciaries such as doctors and lawyers. (He has developed this idea further in separate articles both sole-authored and co-authored with Jonathan Zittrain.)Properly, the information-fiduciary paradigm maps more clearly to privacy interests rather than to free-expression interests, but collection, maintenance, and use of large amounts of user data may be used in free-speech contexts. The information-fiduciary concept may not seem to be directly relevant to content issues. But it's indirectly relevant if the information fiduciary (possibly but not always at the behest of government) uses user data to try to manipulate users through content, or to disclose user content choices to government (for example).In addition, information fiduciaries functioning as social-media platforms have a different relationship with the users, who create the content that makes these platforms attractive. In the traditional world of newspapers and radio, publishers had a close voluntary relationship with the speakers and writers who created their content, which meant that traditional-media entities had strong incentives to protect their creators generally. To some large degree, publisher and creator interests were aligned, although there are predictable frictions, as when a newspaper's or broadcaster's advertisers threaten to remove financial support for controversial speakers and writers.With online platforms, that alignment is much weaker, if it exists at all: Platforms lack incentives to fight for their users' content, and indeed may have incentives to censor it themselves for private profit (e.g., advertising dollars). In the same way that the traditional legal or financial or medical fiduciary relationship is necessary to correct possible misalignment of incentives, the "information fiduciary" relationship ought to be imposed on platforms to correct their misaligned incentives toward private censorship. In a strong sense, this concept of information fiduciary is a key to understanding how a new speech framework is arguably necessary, and how they may work.I've written elsewhere about how Balkin's concept of social-media companies (and others) as information fiduciaries might actually position the companies to be stronger and better advocates of free expression and privacy than they are now. But that's only one piece of the puzzle when it comes to thinking ecologically about today's internet free-speech issues. The other pieces require us to think about the other ways in which "bipolar thinking" about internet free speech not only causes us to misunderstand our problems but also tricks us into coming up bad solutions. And that's the subject I'll take up in Part 2.Mike Godwin (@sfmnemonic) is a distinguished senior fellow at the R Street Institute.

Here in America, unpleasant speech is still protected speech, something a federal court recently reminded a plaintiff. (h/t Adam Steinbaugh)The person bringing the lawsuit is Marion Hammer, the first female president of the National Rifle Association. A frequent target of online criticism, hate mail, and harassment, Hammer decided to sue a handful of her many, many detractors. The lawsuit [PDF] alleges an ongoing campaign of harassment and cyberstalking engaged in by the four defendants.The suit was filed in July. Three of the four defendants failed to respond. The fourth, Lawrence T. "LOL" Sorensen, responded with a motion to dismiss for failure to state a claim. Sorensen argued his communications with Hammer were protected speech. The judge agrees. In Robert Hinkle's short decision [PDF], the judge reminds Hammer that the First Amendment protects a lot of speech people don't like, even when it's targeting them.

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As you may have heard, the UK Parliament put on quite a show on Tuesday in what it claimed was an attempt to go after Facebook for its "fake news" problem. Of course, in the process, the hearings themselves created some fake news that undermined the entire point. To be clear, upfront, Facebook does have many issues that should be taken seriously. But this hearing did not get at those, and actually showed how, when political grandstanding is the focus, it's quite easy to create "fake news" in the process. Still, boy, was that hearing theatrical. It was apparently the first time since 1933 that the UK Parliament had representatives from other countries participate in a hearing, and so there were nine other countries present, including Canada, France, Belgium, Brazil, Ireland, Latvia, Argentina and Singapore. On top of that, Facebook CEO Mark Zuckerberg made the bad decision of refusing to participate in the hearings, giving the Committee the opportunity for this classic photo op:

For several years now cable and broadband providers have been using hidden fees to covertly jack up their advertised rates. These fees, which utilize a rotating crop of bullshit names, help these companies falsely advertise one rate, then sock the consumer with a significantly higher-rate post sale (often when locked into a long-term contract). The practice also allows the company to falsely claim they're not raising rates on consumers. They omit that they're talking about the above the line rate being charged, implying that anything below the line (where real fees like taxes are levied) is outside of their control.Back in 2014, Comcast introduced a new $1.50 per month surcharge it called its "Broadcast TV Fee." Said fee was really just a portion of the cost of doing business for Comcast (programming), busted out of the full bill and hidden below the line -- again to help the company falsely advertise a lower price. Over the last four years Comcast has quietly but quickly pushed this fee skyward, this week informing customers that -- alongside numerous other rate hikes like its "Regional Sports Network" fees -- the company's Broadcast TV fee would now be $10 per month for the company's cable TV customers:

We've grown accustomed to law enforcement being given a pass for not knowing the laws they're enforcing. A 2014 Supreme Court decision made being ignorant precedential, providing cops with an out citizens can't use. Ignorance of the law can be the best excuse when it's a cop trying to keep his evidence from being thrown out of court.With rare exceptions, courts have said it's okay for officers to predicate stops on perceived traffic violations, rather than actual traffic violations. Officers really have to make an effort to run afoul of the Supreme Court-created Fourth Amendment loophole.Another rare exception to the Heien rule has surfaced. The Kansas State Court of Appeals has denied an officer's attempt to salvage a stop and the evidence derived from it by asking for an application of the "ignorance of the law is an acceptable excuse" band-aid. The appeals court isn't willing to allow an officer's personal interpretation of motor vehicle laws to stand in for the actual wording of the law used as an excuse to pull a driver over. (via The Newspaper)In this case, the driver was ultimately charged with DUI and not operating a vehicle with an ignition interlock device. The defendant argued the stop wasn't reasonable under the Fourth Amendment because the violation stated as the reason for the stop wasn't actually a moving violation.The officer argued it was. At the center of the case were the vehicle's tail lights. The left light was broken. The other two -- right and middle -- were still functional. Highway Patrol Officer Reed Sperry testified that he was mistaken about Kansas' tail light law. From the decision [PDF]:

Kobe Bryant made his name, and his Black Mamba nickname, playing basketball. Like many athletes, however, he expanded his business reach off the court and into branding. Utilizing the Black Mamba nickname, he entered into all sorts of licensing arrangements, including with Nike, which makes athletic apparel. As far as I can tell, he has no licensing arrangements for health supplements.And, yet, he has been embroiled in a years-long fight with Hi-Tech Pharmaceuticals, makers of the Black Mamba HYPERRUSH line of diet pills. Aside from the divergent marketplaces, the entire dispute is something of a mess. Hi-Tech applied for its trademark a year before Bryant applied for his own Black Mamba mark, after which Bryant opposed Hi-Tech's application on grounds of customer confusion. Hi-Tech has been battling this out, claiming that Bryant has information that would be helpful to its side of the argument. To that end, they want to depose Bryant, who has thus far refused to hand over documents. Now a motion to compel has been filed, but Bryant's lawyers' strategy for refusing to have him be deposed is essentially to highlight just how useless he would be in a deposition.

An automated system is only as good as its human backstop. If the humans making the final judgment call are incapable of using good judgment, the system is useless.School personnel allowed a machine to do all of their critical thinking, resulting in this unfortunate turn of events.

A few weeks ago, we featured a panel discussion with Mike and others at the Lincoln Network's Reboot conference on the podcast. This week we're doing something a little different and featuring another panel discussion from that conference, but one in which Mike wasn't involved. Instead, it's an interesting — and at times contentious — debate about one big question: do the big tech firms need to be broken up?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.

It was hardly more than 100 years ago that human beings figured out powered flight. Barely 80 since flight became jet-powered, 70 since it broke the sound barrier, and 60 since we mastered jet flight sufficiently for ordinary commercial use. It was also not even 60 years ago that we figured out how to send human beings into space, and not even 50 since we put them on the moon. These time periods hardly span geological epochs; they can be measured by a lifetime.For those whose consciousness developed after these tectonic shifts in the development of human civilization, it can be easy to forget that mankind spent vastly more of its existence not being remotely able to succeed at any of these things than being able to do them all. It can be easy to lose sight of what a triumph each leap is when today they all seem so ordinary. We take it for granted that we can board a metal tube and just a few hours later end up a continent away. We become glib about putting people in space when we have them sitting up there 24/7. And the moon, that celestial body that from the dawn of man has been the object of every dream, has long faded into the rearview mirror. Been there, done that, we think, as the knowledge that it is within our grasp slowly extinguishes the wonder that used to fuel our drive to seek the impossible.Fortunately space is full of other frontiers to tantalize us. And Mars is one of them. Orbiting our solar system between 35 and 250 million miles away from Earth (depending on our respective orbital positions), barely visible to the naked eye, and full of even more mystery than our much more proximate moon (which is less than 240,000 miles away), it passes through the heavens flashing its enticing red glow like a bullfighter to his charges. And so, like moth to flame, we go.But it hasn't been easy. We didn't get close to Mars until the 1960s, or get any sort of good look until the 1970s. And it wasn't until the 1990s that we finally got to touch it with tools we created as stand-ins for ourselves. But even as some Mars exploration missions succeeded, most have ended prematurely, or failed altogether. Even though in the intervening twenty years since our first lander we've managed to send several more robotic extensions of ourselves, which in turn have sent us back enormous amounts of data teaching us about this place so difficult to know, every time we come up with some new apparatus to help move our still-limited knowledge of Mars forward, we still face the same nearly insurmountable problem: how do we manage to get this highly sophisticated piece of equipment to this incredibly far off place?Yesterday, we got it right. Yesterday, we threaded this near-impossible needle and successfully landed the InSight Lander exactly where we wanted it. But this perfect arrival obscures what a tremendous accomplishment it represents. As The Oatmeal illustrated earlier this month, there were a zillion possible points of failure that we had to get perfectly right. We had to pick a spot to land. We had to pick a day to launch to hit that spot. We had to pick a place to launch from. We had to calculate where Mars would be by the time it got there. We had to fly it across 300,000,000 miles of space to get there. We had to get it to arrive at the correct 12 degree angle. We had to get it to survive the heat of atmospheric entry. We had to get it to successfully deploy a special "super-sonic parachute" at exactly the right time. We then had to get it to successfully detach from the heat shield, deploy some landing legs, and fall from its protective shell. And then, with the same impeccable timing, we had to get it to fire some retro-rockets to control its continued descent. And we had to perfectly anticipate every instruction for every task in programming baked into our robotic scout months and months before that program would ever be run. Programming error, mechanical error, or any other human error all could have doomed the mission. And yet none did. It has some more to do to prepare for all of its experiments (deploy instruments, etc.) but InSight now stands ready, on Mars, to continue teaching us about our mysterious planetary neighbor.It is a moment worth celebrating. We spend so much time lamenting technology, often regarding human innovation as some sort of disease to be cured of, that we lose our ability to marvel over just what we've accomplished as a species. To see those first pictures beamed back to our home planet today from another elsewhere in the solar system because we figured out how to is like looking at something of unspeakable beauty. Not just in the view itself but in the momentous human achievement we are privileged to see unfold before our eyes.

More ugly news has surfaced about Israeli malware developer NSO Group. Over the past year, investigations have uncovered sales of phone-targeting spyware to countries known mostly for their human rights violations. Even less questionable governments have purchased NSO's software ostensibly for law enforcement purposes only to use it to target activists, journalists, and government critics.There's no telling how US agencies will deploy this malware, but there's no question federal entities like the DEA think NSO spyware would be a useful addition to their investigative tool kits. The US government doesn't appear to be worried about getting in bed with tech companies willing to sell software to blacklisted countries, so NSO Group is still a viable option.Haaretz has obtained information showing NSO is willing to sell its exploits to its own enemies. Unfortunately, Haaretz has also decided to paywall its discovery, so we'll be pointing you to the Times of Israel's reporting instead.

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A couple weeks back Karl wrote up an excellent analysis of the NY Times' big piece looking at how Facebook tried to deal with ongoing criticism of the company concerning the influence operations that it appears Russians used their site for. Karl's post focused on just how many companies make use of similar political smear campaigns, and everyone (including the press) should be much more tuned into this kind of thing. Indeed, a followup story from the NY Times last week showed that a bunch of other tech companies -- namely Lyft, Lime, Juul and Qualcomm -- all had hired the very same "Definers" firm that Facebook had hired to smear its opponents.I wanted to write a follow up post, though, to make a slightly different point. This one is more directed at the people who work at all of the big tech companies: Stop thinking about running your companies as political campaigns, and focus most on what is best for end-users. It should be noted, of course, that all of these companies are a bit different, and they all do take different approaches to the market, but over the last few years, especially, one thing that has shined through with many of these companies is that they've dealt with the challenges suddenly being directed at them as political issues, rather than structural issues.It's not difficult to see why this is happening. To some extent, it goes back to the popular saying: "We judge others by their actions and ourselves by our intentions." When these companies are getting attacked over their actions, they often feel wronged by the coverage, which they feel is unfair, because the press are often judging the decisions absent larger context that shows how they reached those results. And sometimes it is unfair. But there are still elements of truth in all of these complaints, and companies need to recognize even more, that these challenges are both structural and potentially existential, rather than one of people just being "unfair" in their coverage.The second reason why this is happening is that the political world has spent years beating on Silicon Valley to be "more engaged" in politics, and so much is now being driven by how things look through a political lens that it's become controlling in many ways. All of these companies have hired tons of political operatives, who know how to do political campaigns. Not all of them care what the company is actually doing -- they just care about how it's perceived.Years back, when I was studying "organizational behavior," in college, I remember the professor explaining office "politics" succinctly: raising your own profile while decreasing the profile of anyone else. And, indeed, there are many examples in the NY Times Facebook article of this kind of thinking in action. Rather than deal with the larger structural problems, Facebook decided to go after its critics and its competitors. After the NY Times piece came out, TechCrunch published a bunch of the pitches they received from Definers, noting how very political they were. Unlike most PR pitches, in which the sender identifies what company they're representing, and why they're emailing, Definers pitches were... different:

Consumer groups say that the Ajit Pai FCC is once again being misleading as he continues his ongoing quest to eliminate most meaningful oversight of cell carriers and broadband providers.Last week, the FCC announced several major initiatives the agency claimed were intended to help fight text message spam. One of them involves the creation of a reassigned number database, which would help marketers market more efficiently by ensuring that a target of marketing calls and text messages are receiving the messages they either opted in to, or opted out of. But another effort, only vaguely hinted at in the announcement, would further weaken the FCC's consumer protection authority over wireless cell providers, already greatly eroded after the assault on net neutrality.So some background: a little more than a decade ago, Verizon decided to ban a pro-choice group named NARAL Pro-Choice America from sending text messages to Verizon Wireless customers that had opted in to receiving them. Verizon justified the ban by declaring the text messages "controversial or unsavory"; a curious move for an industry that often cuddles up to marketing spammers and crammers when it's profitable. Ever since then consumer groups, worried that cellular carriers would use their power as gatekeepers to stifle certain voices, have been urging the FCC to declare text messages a “telecommunications service," making it illegal for carriers to ban such select SMS services.Last week, the Ajit Pai FCC unsurprisingly rejected the request. An accompanying Ajit Pai blog post tries to claim that the FCC's refusal of he request (lobbied for by cellular carriers) was somehow necessary to "protect successful consumer protections," the sort of up is down and cold is hot rhetoric that has come to be one of the trademarks of Pai's legacy:

The EU's General Data Protection Regulation only came into force in May of this year. Since then, privacy regulators across the EU have been trying to work out what it means in practice. As Techdirt has reported, some of the judgments that have emerged were pretty bad. A new GDPR ruling from France has just appeared that looks likely to have a major impact on how online advertising works in the EU, and therefore probably further afield, given the global nature of the Internet.The original decision in French is rather dense, although it does include the use of the delightful word "mobinaute", which is apparently the French term for someone accessing the Internet on a mobile device. If you'd like to read something in English, Techcrunch has a long and clear explanation. There's also a good, shorter take from Johnny Ryan of the browser company Brave, which is particularly interesting for reasons I'll explain below.First, the facts of the case. The small French company Vectaury gathers personal information, including geolocation, about millions of users of thousands of mobile apps on behalf of the companies that created them. It analyzes the data to create user profiles that companies might want to advertise to:

You will recall that several years back there was a very stupid trademark dispute between Notch, maker of MineCraft, and Bethesda, which owns the rights to the Elder Scrolls franchise. At issue was Notch's new game Scrolls (which has since been retitled Caller's Bane) with Bethesda crying trademark infringement, claiming it owned the trademark rights to basically everything "scrolls." Disappointingly, the whole thing ended in a settlement with Notch getting to keep his game's name but not getting his trademark.While in that case one could at least lend Bethesda the acknowledgement that Elder Scrolls games are very much still active in the marketplace and haven't become simply methods for retro enjoyment, the same cannot be said of Square's ownership of the Conflict series. And, yet, Square has decided to oppose the trademark application of an indie developer in Malta for its title Conflict Of Nations: World War 3.

When life and liberty are on the line, law enforcement lab techs are there to turn hard science into a roulette wheel. Once you get past the fact that a lot of forensic investigative techniques are little more than junk science, you run directly into the failures of the humans staffing forensic/drug testing labs.In the state of Massachusetts alone, more than 30,000 cases are in the process of being tossed due to lab tech misconduct. One lab tech faked most of her work, speeding through her workload by faking tests and test results. Another used the drug lab as her own personal drug stash, using whatever substances she wanted from incoming evidence and replacing it with filler.Forensic science is plagued with incompetence and overconfidence, which is an incredibly bad combination when people's freedom is on the line. Only in recent years has the DOJ instructed forensic experts to stop overstating the certainty of their findings. But that hardly fixes the problem. Outside debunkings have led to zero changes in law enforcement forensic work -- a fact so disheartening a judge very publicly resigned from a committee seeking to fix these problems when it became apparent the committee wasn't actually supposed to fix anything.Here comes more bad news on the forensic front, via criminal justice blog Grits for Breakfast.

As we've been talking about for some time, Australia is set to amend its copyright laws to expand what were site-blocking provisions into search-blocking ones. It's an odd bit of mission creep, as the copyright industries in Australia have at once praised site-blocking as being very effective at curbing piracy while also insisting that search-blocking needs to be done to curb piracy. Despite this, the amendment appears to have broad government support, with the exception of a few detractors. The Australian government is still taking comments about the proposed changes and Google has decided to wade in. As is typical with Google, the arguments it makes are nuanced and careful, whether you agree with them or not.

We waved goodbye to general warrants with the Fourth Amendment back in 1791. Now, thanks to tech companies collecting tons of info on site visitors and the FBI's apparent inability to craft a narrow warrant, it's the late 1700s all over again!With a wealth of information a subpoena or warrant away, law enforcement is asking for everything and promising to sort it all out properly. This hasn't worked as well in practice as it has in theory. Investigators looking for evidence of one crime have found others to charge defendants with simply by sifting through the digital haystacks they're able to acquire with a single piece of paper.In other cases, investigators have decided everyone is a suspect and that the massive amount of data obtained with this dubious legal theory will somehow point them to the real criminals. That's the theory behind law enforcement's "reverse" searches: ones where they demand all cell site location info from everyone connecting to certain cell towers before paring down the list of suspects from "everyone" to "everyone in certain locations at certain times."A warrant requested by the FBI related to a bombing in New York last year is operating under this same premise. The search warrant ostensibly seeks to obtain information about defendant Victor Kingsley's YouTube viewing habits. Kingsley is facing federal charges for killing a New York City landlord with a handmade bomb. Kingsley was allegedly targeting a police officer who he thought lived at that address as revenge for his arrest by that officer three years earlier.According to the affidavit [PDF], searches of Kingsley's computers revealed a slew of searches for bomb making materials and instructions. Many of these searches took him to YouTube videos. With this information, you'd think the feds would have plenty of evidentiary ammo to bring to court that would infer Kingsley intended to make a bomb. The FBI also recovered evidence on online purchases of items used in making explosives.With this already in hand, it's hard to understand why the FBI is looking for more info. But what's harder to understand is why it's seeking more info in this particular manner.The affidavit correctly points out Google collects a ton of info on YouTube viewers, whether or not they create a YouTube account. It also points out most viewers have accounts because without one, their actions (upvoting, downvoting, playlists, etc.) are severely restricted. It then details a long list of information the FBI believes Google can produce when served with a warrant (which also includes physical addresses, billing info, phone numbers, etc.).

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In a weird announcement threatening the commencement of pointless government monitoring, a French official says tax cheats will now be outed by their own selfies. (via Reason)

So for years digital rights activists have worried about insurance companies getting their hands on everything from your smart car data to your pacemaker information and using that to deny you coverage, charge you more money, or make an extra buck selling said data to the highest bidder. That's especially a problem in an era where consumer privacy rights are under constant siege, alongside the right to repair and open access these devices (and any data they might store about you).If you thought this rather dystopian future was activist hyperbole or still a decade or so out, you may be disappointed.Propublica recently released a rather interesting story about a CPAP (continuous positive airway pressure, used to treat sleep apnea) user who found that their insurance company had been accessing sleep data generated by the device, and using it to deny coverage:

Something strange and disturbing happened in the UK this weekend. That it targeted pariah du jour Facebook doesn't make it any less bizarre or worrisome.The short story is this: peeved at being blown off repeatedly by Mark Zuckerberg and other Facebook representatives, members of Parliament shook down an American third party for documents possibly related to the Cambridge Analytica scandal. The long story -- broken by Carole Cadwalladr of The Guardian -- fills in the details.But first a little background: Six4Three, developers of a scuzzy app that scanned profiles for bikini photos, is currently suing Facebook for yanking its API access. The lawsuit has traveled from the federal court system to a California state court, where Six4Three is hoping for a ruling declaring Facebook's actions to be a violation of various state-level competitive business laws.During the course of this suit -- which was filed in January 2017 -- Six4Three has obtained internal Facebook documents through discovery. These documents may contain info related to Facebook's data-sharing and data-selling practices, which could possibly include its deals with Cambridge Analytica.Somehow, members of Parliament found out one of Six4Three's lawyers was in London. So, this happened:

This week, our first place winner on the insightful side comes from our post about the Romanian government shutting down a journalism project by abusing the GDPR. One commenter insisted it was wrong to treat this as an argument against the law itself, and an anonymous commenter offered a response to that idea:

The holidays are approaching, and if you want to give the gift of Techdirt Gear to someone on your shopping list this year (or just treat yourself) then you've only got a couple weeks left to place your order with Teespring and ensure it ships in time!The cutoff date to ensure delivery by Christmas with standard shipping is December 11th for US orders and December 4th for international orders! Rush shipping is also available in some locations for an extra fee, pushing the deadline to December 19th.Be sure to check out our recent t-shirts, hoodies, mugs and stickers like the First Emojiment gear featuring an internet-ready translation of the first amendment:And for those who are getting tired of a certain oft-repeated mantra about free speech that just happens to be completely incorrect and useless, check out our Free Speech Pro-Tip gear:Also, earlier this year we took a treasure trove of old NSA propaganda posters that were obtained via a FOIA request from Government Attic and turned 24 of the best ones into t-shirts, hoodies and mugs. You can browse them all in our Teespring store or click on one of these thumbnails to head straight to the design of your choice:Remember, US orders are due by December 11th for standard delivery by Christmas. Check out our store on Teespring for other great Techdirt gear!

While we're off for the Thanksgiving long weekend, we're shuffling things around a little bit — so even though it's Friday, here's the weekly history post! We'll be back to our regular posting schedule on Monday.Five Years AgoThis week in 2013, the USTR was trying to defend the TPP following the leak of the IP chapter, by claiming it was the most transparent trade negotiation in history (an announcement made from a Hollywood studio) and telling the lie that it is no different from US law. Then, while Bloomberg was suggesting that the utter lack of transparency could kill the deal, another leak happened and we got to see the copyright maximalist talking points regarding the leaked IP chapter.Meanwhile, new leaks and declassified documents were giving us more information about the NSA, including more abuse of bulk email collection and the exploitation of pen register statutes, plus a surveillance deal with the UK's GCHQ. The DOJ was resisting the FISA court order to reveal the feds' secret interpretation of the PATRIOT Act, leading the court to demand an explanation. And more internet companies were moving to up their security in response to NSA meddling, with Yahoo working on encrypting all data center traffic and Twitter implementing forward secrecy. There was still a lot of work to do at a lot of companies though, as illustrated by a handy scorecard from the EFF (which would have a lot more checkmarks today than it did then, so I guess we can call that a silver lining to the government compromising tech companies).Ten Years AgoThis week in 2008, we were beginning to learn more about the soon-to-be-famous Joel Tenenbaum case over the RIAA's music sharing lawsuits, most notably its all-star witness list. At the same time, another racketeering lawsuit was filed against the agency over its threat letters, but we weren't optimistic about it going anywhere. And the RIAA also convinced Tennessee to pass a law forcing universities to filter their networks.Meanwhile, a judge threw out Psytar's antitrust claims against Apple, a German politician's attempt to block Wikipedia initiated the Streisand Effect, an Australian ISP was agreeing to the government's filtering plan just to collect data on how bad it was, and Nintendo was cruelly trying to prevent the resale of used Wii peripherals.Fifteen Years AgoThis week in 2003, the war on spam and scams continued, with the House and the Senate reaching a compromise on anti-spam legislation (definitely better than one senator's proposed tax on every email you send), while the DOJ announced that since October it had arrested 125 people for online scamming and other online crimes — though we had some serious questions about that, since they seemed to be flinging a lot of stuff under the umbrella of "cybercrimes" without good reason, such as a guy who replied to spam with angry, threatening emails. Perhaps a better strategy was the newly-emerging sport of 419 baiting.

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While the U.S. wireless industry likes to talk a lot about how ultra-competitive it is, that's generally not the case. While there's more competition in wireless than in the fixed-line broadband sector (where there's virtually no competition at faster speeds due to upgrade-phobic telcos and cable's growing broadband monopoly), much of the competition in wireless tends to be theatrical in nature. Most of the major four carriers still usually outright refuse to compete on price, something you don't get to have a choice about in a truly competitive market.While T-Mobile's disruption of the market (which has its limits) has certainly helped improve some of the worst aspects of US wireless (like long term contracts and international roaming price gouging), Americans have long paid more money for mobile data than most of the developed world. A new report out of Finland by Rewheel has once again driven that point home. According to the firm's latest data, U.S consumers pay the fifth-highest rate on average per gigabyte for smartphone plans across OECD and European countries, and the highest prices on average for mobile data services provided via things like mobile hotspots.All told, U.S. smartphone plans are more than four times higher than in most EU countries, and up to sixteen times higher across much of Europe:The study comes on the heels of another important study showing that streaming video quality over U.S. networks is some of the worst quality in the developed world -- in large part because carriers have begun erecting artificial barriers consumers then have to pay even more to overcome. For example, Verizon now throttles all video by default on its unlimited data plans to 480p (or around 1.5 Mbps), requiring you jump to a more expensive tier if you want streaming to actually work like the originator intended.The new Rewheel study was quick to point out that whereas the US market should see more serious price competition due to having four major carriers, that's not the case. US pricing tends to more directly compare to countries where there's just three major wireless competitors and real price competition is somewhat suppressed. And while the study doesn't explain why, we've noted repeatedly how much of this is thanks to the monopoly companies like AT&T, Verizon, and CenturyLink enjoy over the business data services (BDS) market that feeds everything from ATMs to cell towers.In other words, even if you're a scrappy competitor like T-Mobile that somehow manages to beat back the giants at spectrum auction and in DC lobbying, you'll still need to pay them significant sums just to connect your towers to core networks, tightening your margins and driving up your costs. The FCC's own data has indicated that roughly 79% of the BDS market is dominated by just one company, usually AT&T, Verizon, or CenturyLink.Meanwhile, having regulators like Ajit Pai who are now no more than giant rubber stamps for industry interests means none of these underlying problems are going to be fixed any time soon. In fact, Ajit Pai's "solution" to this problem was to literally redefine the word competition at the FCC to try and hide that the problem exists at all. With that kind of leadership, it shouldn't be too surprising why US consumer mobile bills are so high compared to their European counterparts.And researchers at Rewheel were quick to hint that it's going to get worse with the looming merger between T-Mobile and Sprint, which actually will reduce the sector to three competitors, proportionally reducing any genuine incentive to actually compete on price. The firm was quick to pour a little cold water on the idea that merger mania and fifth generation (5G) upgrades will somehow fix the sector's deep-rooted issues:

When you violate the Fourth Amendment so hard it practically becomes the Third Amendment. (via FourthAmendment.com)

While piracy and ways to combat it may be weighing heavily on the minds of many a software producer, it's quite unfortunate that more of them don't consider conversely how their anti-piracy efforts will impact their legit customers. You can see this sort of thing all over the place in the software world, most prominently when it comes to DRM, which tends to stop almost no piracy but manages to annoy legit customers.But DRM isn't the only method out there for combating piracy. Corel came up with a patented approach that detects pirated versions of its software and attempts to get the pirate to pay up.

Back in 2011 the FCC launched something called the Measuring American Broadband program. It was revolutionary in the fact that for the first time, the FCC refused to simply take ISPs at their word in terms of the speed and connection quality of their broadband offerings. Instead, the FCC hired UK firm Samknows to embed custom-firmware modified routers in the homes of thousands of real world broadband volunteers, providing insight into the real state of US broadband network performance, not the rosy picture of US broadband telecom industry lobbyists like to paint.Not surprisingly, actually using real world data to inform policy paid dividends. The FCC's first report (pdf) in 2011 showed that some ISPs, like New York's Cablevision, were delivering just 50% of the bandwidth they advertised during peak usage hours. Cablevision didn't much like being called out in this way, and by the next report (pdf) in 2012 was shown to have fixed its problems, now offering actually more bandwidth than they had previously advertised (120%). It was, in the absence of more competition, a novel way to nudge ISPs toward doing the right thing.Each year like clockwork these reports were released to the public. Until last year, that is, when then new FCC boss Ajit Pai simply refused to release the report at all, despite the fact that taxpayer dollars were still funding it and volunteers were still participating.On Monday of this week, Jon Brodkin at Ars Technica wrote an excellent piece noting how Pai's office not only didn't release the report at all last year, but had refused to answer months of press inquiries as to why, and whether the FCC would release its data this year. He also noted how the Pai FCC had been tap-dancing around numerous FOIA requests for more detail for months (the FCC's facing numerous lawsuits for ignoring FOIA requests on a litany of subjects):

MuckRock has concluded its national automatic license plate reader survey. Or, at least, it's as close to completed as humanly possible, what with more than a handful of agencies still refusing to turn over data. But there's a ton of info in the dataset and more than a few concerning aspects about nationwide use of ALPRs.Let's go ahead and start with the biggest number -- one that shows just how much tracking these devices that aren't technically tracking devices do.

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