There seems to be a general argument, perhaps believed by folks at Google and Facebook in particular, that they need to suck up all this data about us to provide more and more targeted advertising. I'm still not at all convinced that's true. Earlier this year, I suggested that Google and Facebook might be better off if they just admitted that targeted advertising didn't work as well as people like to pretend it works. The fact is that it doesn't work all that well, and comes with massive costs in terms of everyone thinking that all these companies want to do is suck up more and more data. And the "advantage" over other forms of advertising (contextual, brand, etc.) are really not that great. Earlier this month we highlighted a study that showed that, for publishers, targeted advertising didn't show any real benefit, and that it was mainly being used to prop up the fees middlemen got, in being able to claim some magic sauce to better target ads.Now, the NY Times has published an op-ed by DuckDuckGo CEO, Gabriel Weinberg making the exact same point: the internet doesn't need creepy advertising to have a workable business model. Indeed, what made Google a success in the first place was the fact that its non-creepy, non-privacy instrusive contextual advertising was so freaking profitable because it worked amazingly well:

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Read our new report on intermediary liability »We've obviously been talking a lot about Section 230 of the Communications Decency Act over the past few years -- and it is often credited as being the most important law for the internet. Jeff Kosseff's recent book calls it "the 26 words that created the internet," while David Post once declared that Section 230 probably "created a trillion dollars or so of value." We've talked a lot about how the real benefits of Section 230 are not to the internet companies themselves, but to the public's free speech rights, but over the last few years it's bugged me that there wasn't a better attempt to measure the actual economic impact of Section 230 and other intermediary liability regimes.Today, in partnership with NetChoice, we're launching our new report: Don't Shoot the Message Board, that attempts to explore what the data shows concerning the economic benefits of Section 230. We chose the name because it's perfectly fitting. Section 230 was, literally, written and pushed by (then) Reps. Chris Cox and Ron Wyden in response to the awful ruling in the Stratton Oakmont case, which suggested that any company hosting a message board could be found liable for any of the content on that message board. Similarly, the common phrase is "don't shoot the messenger," which is very much about not blaming the party merely delivering the message, as opposed to creating or causing the message. Putting liability on intermediaries is very much about blaming the messenger for actions of someone else.To provide some actual data for this debate, the report first compares a few different intermediary liability regimes to see what we can parse out. It starts with looking at the US vs. the EU. In the US, we have CDA 230 for most platforms, and DMCA 512 for copyright-related platforms. In the EU, they have the E-Commerce Directive (and soon they'll have the implementations of the Copyright Directive, but this report looks at the state of things before that). In many ways the intermediary liability in the E-Commerce Directive is much more similar to the DMCA in the US than CDA 230. Using a variety of datasets and comparison points, we found that CDA 230 appears to have resulted in significantly higher investment in US internet companies who rely on CDA 230. Our data suggests CDA 230 alone is probably responsible for two to three times more investment in the US than the EU. It also drove much higher levels of investment as companies in our sample were five times as likely to raise over $10 million in the US and nearly ten times as likely to raise over $100 million than their counterparts in the EU.Tellingly, when comparing copyright-focused platforms, where the liability standards are similar (or, at least were similar, prior to the Copyright Directive), we found EU companies did much better compared to their American counterparts. In other words, it appears that different choices for liability regimes can have a major impact on the types of investment and how much is invested. One reason why many of the big music platforms may have come out of the EU, rather than the US, is that the US's decisions on intermediary liability no longer gave the US an advantage for those kinds of platforms. In short: the decision to offer fewer liability protections in the US drove those investment dollars elsewhere.The paper also compares the DMCA and the CDA in the US alone, to see if there's a major difference in spurring investment -- and we found clear evidence that having these two different regimes resulted in much more investment focused on platforms that rely on CDA 230 (social media, communications platforms) as compared to content based platforms where the DMCA is of greater importance. There is obviously overlap, as many platforms rely on both laws, but when breaking out music companies vs. cloud computing, cloud storage, e-commerce and social media companies, we found over and over again that the latter received more investment, were more successful in the long run, more likely to have a successful exit and less likely to shut down. In other words, having the strong protections of CDA 230 seemed to help lead to more successful companies, and thus, more innovation.To back up these findings, we looked at a variety of countries where a major change -- either from a key court ruling or changes in the law -- created a sudden shift in intermediary liability protections, and then did a before-and-after analysis of the impact on investment and startups in those markets. Once again, the findings were more or less what we expected. When a country strengthened the protections for intermediaries, investment went up, the number of startups increased and there was greater innovation. When a country removed or weakened such protections, investment dropped. Noticeably.I should note that there were some exceptions to this rule -- and that happened mostly where there wasn't an existing strong startup ecosystem (such as Argentina). There, when intermediary liability laws were strengthened, there was little evidence of a sudden influx of investment. So, that suggests that strong intermediary liability protections are important, but not the only important thing, in driving greater innovation and investment.As we note in the paper, this is not meant to be the definitive look at these issues. There are many, many different factors and variables that play into the startup and innovation ecosystems. However, there was so little data on the direct impact of things like Section 230 that we thought it would be helpful in furthering the debate to at least have some data-driven research into the impact.At a time when politicians around the globe are suddenly increasingly interested in weakening intermediary liability protections, they should at least consider what that might do to investment, innovation and jobs. Our new report suggests weakening such protections may very well be "shooting the message board."

We've already noted extensively how the "race to fifth generation wireless (5G)" is kind of a dumb thing. While 5G is important in the way that faster, better networks are always important, the purported Earth-rattling benefits of the technology have been painfully over-hyped. And they've been painfully over-hyped largely for two reasons: one, mobile carriers want to give a kick to stalling cellphone sales numbers, and network hardware vendors like Cisco want to drive the adoption of new, more expensive, telecom hardware.The "race to 5G" isn't a race. And even if it were, our broadband maps are so intentionally terrible, we'd have no idea if and when we'd won it. Regardless, 5G has subsequently become a sort of magic pixie dust of tech policy conversations, justifying all manner of sometimes dubious policy. But the underlying desire to simply sell more kit has also infected the Trump administration's protectionist attacks on companies like Huawei, which is based on about 40% actual cybersecurity concerns, and 60% lobbying efforts by US hardware vendors that don't want to compete with cheaper Chinese hardware.The Trump administration's war on Chinese network manufacturers has not been subtle, even though evidence supporting wholesale spying allegations against companies like Huawei has been arguably lacking. This week rumblings emerged that the Trump administration would soon be accelerating this effort by potentially banning absolutely any Chinese-made hardware from being used in US 5G networks, at all:

The UK government has adopted a spin on asset forfeiture so brazenly abusive of citizens, American cops are probably kicking themselves for not thinking of it first.Dutch law enforcement raised the bar for forfeiture-related audacity early last year when they promised to start taking the literal clothes off people's back if it didn't seem like they had the (legal) funds to afford high-end designer wear. Dutch officials said a lot of things about gaudy timepieces but made it clear shirts and pants might follow if deemed sufficiently expensive.The UK has this beat. As Walter Olson opines for the Washington Examiner, the UK plan does away with all the comparative politeness of American asset forfeiture. There will be no fishing expeditions masquerading as traffic stops. There will be no pre-dawn raids predicated on tips by informants whose trustworthiness is only exceeded by their willingness to commit crimes using taxpayer dollars.As Olson points out, all UK law enforcement needs to do is claim "You can't afford that!" in front of a sufficiently-credulous magistrate.

The Department of the Interior is still trying to remove the word "freedom" from "Freedom of Information Act." The first step is removing the word "information."Earlier this year, the DOI tried to sneak past a rewrite of FOIA by hiding a request in the federal register. It would only apply to the DOI, hence the lack of legislative noise or heads up to the public. Under the guise of "ensuring compliance" with the law, the DOI wanted the power to unilaterally reject any request it found "burdensome."Faced with an influx of requests, the DOI decided to double down on non-compliance. Rather than route more staff to the overburdened FOIA response team, the DOI decided it would be better served by tossing as many requests in the trashcan as possible.A few months have passed, but the Interior Department's attitude towards transparency hasn't improved. In fact, it's gotten worse. The DOI's best and brightest continue to work tirelessly towards ensuring as little information is freed as is humanly possible. Roll Call, which first exposed this underhanded tactic in May, has more details on the DOI's flagrant disregard for FOIA's statutory requirements.

Techdirt has been covering the roll-out of the extraordinarily comprehensive digital surveillance systems in China for many years. It's hardly news that the Chinese authorities continue to deploy the latest technologies in order to bolster their control. Many of the same approaches to surveillance are being tried in the special administrative region of Hong Kong. A British colony for 156 years, it was handed back to China in 1997 on the understanding that there would be "one country, two systems": Hong Kong would be part of China, but it would retain its very different economic and administrative systems for at least 50 years.Well, that was the theory. In practice, Xi Jinping is clearly unwilling to wait that long, and has been asserting more and more control over Hong Kong and its people. In 2014, this provoked the youth-led "Umbrella Movement", which sought to fight interference by the Chinese authorities in Hong Kong's political system. More recently, there have been even bigger protests over a planned law that would allow extradition from Hong Kong to China. This time, though, there has been an important development. The protesters know they are increasingly under surveillance online and in the street -- and are actively taking counter-measures:

The long history of abuse and misconduct by DHS components stretches back for years. Agencies like ICE, CBP, and the TSA have never not been abusing their power to violate rights, circumvent the protections of the legal system, or just treat everyone like garbage for national security reasons.Why has nothing gotten better? Well, if you're the DHS, you've tried nothing and you're all out of ideas. The latest report [PDF] by the DHS Inspector General understates the issue. The title says the DHS needs to "improve" its oversight of misconduct and discipline. Start with the baseline low enough and any incremental forward motion is an improvement.Reading through the report, it's apparent the DHS simply doesn't care what abuses happen on its watch. No one in the agency -- not even those specifically tasked with following up on allegations of misconduct -- seems to think it's their job to follow up on allegations of misconduct.

Senator Josh Hawley's ridiculous and unconstitutional bill to remove CDA Section 230 protections from internet giants was clearly designed to appeal to conservative voters who have been fed a nonstop myth that the big internet platforms are "targeting" them for their conservative views, when the reality is that the platforms are mostly targeting trolls, harassers, Nazis, and assholes. If those factors are disproportionately impacting Republicans, then perhaps that's more an issue for the Republican party than the internet platforms.Either way, given that the myth that platforms are "targeting" conservatives has some traction, it seems likely that Hawley thought the conservative movement and conservative organizations would likely rush in to support his nonsense bill. It appears he miscalculated. FreedomWorks, the organization closely associated with the Tea Party movement put out a tweet mocking Hawley for thinking "conservatives are too stupid to realize he's trying to kill free speech online."

US social media companies are continuing to act as proxy censors for governments around the world. This is adding some bizarre twists to stories of social media content takedowns as governments target posts by non-citizens located thousands of miles away.India may have abandoned a fake news law, but it still acting as though unverified news is a threat to national security. In a case covered by Kevin Poulsen for The Daily Beast, an American college student's tweets were targeted by the Indian government, which claimed the student was engaging in spreading propaganda.

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It's no secret that Australia has taken a very different view towards intermediary liability than the US, saying (for example) that search engines can be responsible for search results it had nothing to do with, and even that they can be held liable if you are offended by the images that show up next to yours in an image search. So perhaps the latest such case in Australia shouldn't be a surprise. A court has ruled that media companies can be held liable for comments on their news stories. And not just the comments on their own pages... but on Facebook.And the reasoning here is truly incredible. Because an "expert" testified that news sites could "hack" Facebook with a filtered list of common words to block comments, that magically makes them liable. No, really.

Despite endless government initiatives and countless promises from the telecom sector, our national robocall hell continues. Robocalls from telemarketers continue to be the subject the FCC receives the most complaints about (200,000 complaints annually, making up 60% of all FCC complaints), and recent data from the Robocall Index indicates that the problem is only getting worse.As robocallers get bolder, they're increasingly targeting institutions like hospitals, often to a dangerous degree:

This week, our first place winner on the insightful side is an anonymous comment that does a great job at summing up much of the content moderation question:

Five Years AgoThis week in 2014, it was becoming increasingly clear that the government had no idea how to solve a problem like Snowden, and we all got to see more details about things like the NSA's aggressive language about data collection, its gamification of spying, and the fact that it was accessing insane amounts of data directly from overseas cables. But some progress was made as the House overwhelmingly voted to take away one of the NSA's spying tools, even as the administration declined to take an easy opportunity to end bulk phone data collection immediately.Meanwhile, police in London made the hilarious claim that "The Tor" is 90% of the internet, the feud between John Oliver and Tom Wheeler moved into its second phase, Techdirt received its first right to be forgotten request, Prenda Law was hit with $12,000 in sanctions, and an appeals court ruled unequivocally that yes, Sherlock Holmes is in the public domain.Ten Years AgoThis week in 2009, while one media analyst was calling Hulu "anti-Ameircan" for providing free content, and Blu-Ray was rolling out the ability to make inconvenient DRM-laden copies of discs, the recording industry was tying itself in knots in its fight for the Performance Rights act: arguing against the idea that digital radio is different from terrestrial despite that being an idea the RIAA itself originally promulgated, and calling for an FCC investigation of radio stations that were refusing to play songs from musicians who supported the Act, even though their whole argument is that all this unpaid airplay constitutes piracy. But they got a big win in the ill-advised Jammie Thomas case, with Thomas ordered to pay a shocking $1.92 million by the jury — an insane number that raised big constitutional questions was of course quickly defended by all the usual RIAA mouthpieces.Fifteen Years AgoThis week in 2004, the big trend for online newspapers was the silly notion of registration walls, but at least that wasn't quite as insane as their plan to get in on the music download store trend. People were still having all sorts of reactions to the spread of mobile phones, from the irritation with hearing private conversations to the standard fear about kids accessing porn and even in some places giving serious credence to fears about wireless signals causing illness. Perhaps the craziest example was in Ireland, where the government wanted to create a registry of all 3G phone buyers in case some turned out to be child pornographers.Meanwhile, the MPAA was trying to come up with strained legal reasons that file sharing systems should be investigated, Universal's vaunted price-drop for CDs was not going so smoothly, DirecTV stopped attempting to extort people who had purchased smart card readers in what seemed to be the result of EFF pressure but turned out to likely have been because of a forthcoming court order, and Cory Doctorow — in a fight that he sadly must continue (but thankfully does continue) to this day — made a thorough and impassioned argument against DRM to Microsoft.

For years, we've tended to mock newspaper paywalls -- not because we don't want to see news publishers get paid (that would actually be good!), but because it just doesn't seem like a really sustainable way to build a news product for nearly every publication. In other words, nearly all media paywalls are destined to fail -- often spectacularly -- because they can't generate nearly enough paying subscribers. There are exceptions, but they are few and far between. Large general interest news sites like the NY Times and the Washington Post seem to have made it work. Small, narrowly focused sites can sometimes get by as well -- if their content is unique and special enough. But most general interest news sites are unlikely to be able to make it work -- and a new study drives home that point. Even for people who like paying for news, they tend to only pay for one news subscription. Really.

Senator Josh Hawley's law to wipe out CDA 230 protections for internet platforms unless they apply to the FTC for a special certificate, which they can only get if they show 'clear and convincing evidence" that their moderation practices are "politically neutral," is dumb in many, many ways. But one of the most ridiculous parts is that it literally requires internet platforms to give extra weight to Nazis, and to punish any site that does not give the Nazis a platform. NetChoice made this point with its statement on the bill:

On Monday, June 17, Deputy Attorney General Jeffrey Rosen said this during his speech to the National Sheriffs' Association:

Earlier this year, we wrote about a powerful piece by Casey Newton at The Verge detailing what a horrific job it is to be a content moderator for Facebook. It was eye-opening.

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For well over a decade we've discussed the short-sightedness of the US repeatedly demanding that China "respect" US intellectual property, because China has only turned that around on the US, and used Chinese patents as a way to block American competitors from entering the Chinese market. Things seemed to go up a notch recently, after the US government expanded its attempts to block Huawei from the US market, and Huawei suddenly remembered it owned a shit ton of patents and started demanding Verizon pay on the order of a billion dollars or face patent infringement claims.As we discussed, Huawei was just following the established playbook of using the US's bizarrely stupid obsession with "patents" against the US itself. Hilariously, Huawei's CEO was just recently quoted as insisting that the company would not "weaponize" its patents, at the same time that it was clear that that's exactly what Huawei is doing. Of course, as we've learned over the years, patents are designed to be weaponized and are frequently used as weapons against innovation.In response to all of this, rather than recognizing that our over emphasis on patents (and our demands that China "respect" those patents) might be a big part of the problem, Senator Marco Rubio, has submitted an amendment to the National Defense Authorization Act (NDAA) that would literally block Huawei from enforcing its patents in US courts. In a tweet, Rubio defended this blatantly protectionist move:

There seems to be some recurrent confusion about Section 230: how can it let a website be immune from liability for its users' content, and yet still get to affect whether and how that content is delivered? Isn't that inconsistent?The answer is no: platforms don't lose Section 230 protection if they aren't neutral with respect to the content they carry. There are a few reasons, one being constitutional. The First Amendment protects editorial discretion, even for companies.But another big reason is statutory, which is what this post is about. Platforms have the discretion to choose what content to enable, because making those moderating choices is one of the things that Section 230 explicitly gives them protection to do.The key here is that Section 230 in fact provides two interrelated forms of protection for Internet platforms as part of one comprehensive policy approach to online content. It does this because Congress actually had two problems that it was trying to solve when it passed it. One was that Congress was worried about there being too much harmful content online. We see this evidenced in the fact that Section 230 was ultimately passed as part of the "Communications Decency Act," a larger bill aimed at minimizing undesirable material online.Meanwhile Congress was also worried about losing beneficial online content. This latter concern was particularly acute in the wake of the Stratton Oakmont v. Prodigy case, where an online platform was held liable for its user's content. If platforms could be held liable for the user content they facilitated, then they would be unlikely to facilitate it, which would lead to a reduction in beneficial online activity and expression, which, as we can see from the first two subsections of Section 230 itself, was something Congress wanted to encourage.To address these twin concerns, Congress passed Section 230 with two complementary objectives: encourage the most good content, and the least bad. Section 230 was purposefully designed to achieve both these ends by providing online platforms with what are ultimately two complementary forms of protection.The first is the one that people are most familiar with, the one that keeps platforms from being held liable for how users use their systems and services. It's at 47 U.S.C. Section 230(c)(1).

As we've noted for years, internet filters don't work, routinely censor legitimate content by mistake, and implementing them is a massive waste of money, time, resources, and precious calories. In the UK, that's been a lesson that has been painfully difficult to learn.The UK has long implemented porn filters in a bid to restrict anybody under the age of 18 from accessing such content. New age verification controls were also mandated as part of the Digital Economy Act of 2017. But as we've previously noted, the UK government has seen several fits and starts with its proposal as it desperately tries to convince the public and business sectors that the ham-fisted effort was going to actually work.Back in April, the UK government announced that after numerous delays the program would effectively be taking effect July 15. Under the proposal, websites that failed to comply with the country's age verification program face fines up to £250,000, risk being taken offline, or may lose access to payment services. Randy folks who wanted to view some porn were to be redirected to a special subsite where they'd be prompted for an email address and a password, before verifying your age using a driving license or a passport. They'd then, theoretically, happily be passed off to compliant porn websites.Of course anybody who has watched anybody with a whit of technical prowess bypass these costly blockades using VPNs or proxies knew this wasn't going to work. Getting global websites to comply with UK law was largely preposterous, and the creation of a database of porn habits created fairly obvious privacy and security issues.After years of grumbling, the UK government appears to have now scrapped the proposal "indefinitely." UK outlets are suggesting that bureaucratic dysfunction -- not any epiphany as to the stupidity of the program -- was to blame:

A couple of weeks back, we discussed the story of Caterpillar Inc., famous manufacturers of tractor equipment, deciding to bully Cat & Cloud Coffee, makers of you'll-never-guess-what, all because the former had long ago trademarked "CAT" as a truncated brand. At issue specifically is Cat & Cloud's use of the word "cat" on clothing and merchandise it sells, with Caterpillar claiming there is the potential for public confusion with its own clothing and merch lines. This is, of course, plainly ridiculous. There is no overlap in the branding and nobody is going to confuse the tractor folks with the coffee folks.Others pointed out that there are tons of other companies out there that sell apparel and/or merch while holding trademarks that incorporate the word "cat." If those other companies are allowed to exist, why not Cat & Cloud? Caterpillar Inc. heard you dear friends, but its response is probably not the one you were hoping for.

Over the weekend, Google CEO Sundar Pichai gave an interview to CNN in which he admitted to exactly what we've been screaming over and over again for a few years now: it's literally impossible to do content moderation at scale perfectly. This is for a variety of reasons: first off, no one agrees what is the "correct" level of moderation. Ask 100 people and you will likely get 100 different answers (I know this, because we did this). What many people think must be mostly "black and white" choices actually has a tremendous amount of gray. Second, even if there were clear and easy choices to make (which there are not), at the scale of most major platforms, even a tiny error rate (of either false positives or false negatives) will still be a very large absolute number of mistakes.So Pichai's comments to CNN shouldn't be seen as controversial, so much as they are explaining how large numbers work:

This week, the Washington Post grabbed plenty of attention for a story that claimed that kids are actually growing "horns" because of cell phone use. The story, which leans on 2016 and 2018 research out of Australia, was cribbing off of this more nuanced piece by the BBC on how skeletal adaptation to modern living changes are kind of a thing. The Post's more inflammatory take was accompanied by a wide variety of other stories proclaiming that today's children are growing horns and bone spurs because they use their durn cellphones too much!The Washington Post put it this way, with an accompanying, scary X-Ray pulled from the initial research:

A California court has tossed a self-described feminist's lawsuit against Twitter for being kicked off the platform. [h/t Adam Steinbaugh]Meghan Murphy was banned from Twitter for violating the terms of use with tweets stating "men aren't women tho" and "how are transwomen not men?" She also posted tweets referring to certain transgender women as "men," which contained personal information about their previous male identities. Twitter gave several warnings to Murphy that these tweets violated its Hateful Conduct Policy before banning her completely.Murphy then sued, filing a putative class action lawsuit against the social media service that alleged a variety of contractual violations. She alleged the updated Hateful Conduct Policy hadn't been enacted at the point she was accused of violating it -- specifically the additions that made targeting or "deadnaming" transgender people a violation of the rules.Murphy hoped to have the court find in her favor and bind Twitter to a large number of stipulations. From the decision [PDF]:

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Last week, Tim Geigner wrote about the Spanish soccer league, La Liga, getting hit with a GDPR fine because its mobile software just happened to sneakily include a surreptitious surveillance feature, turning on users' microphones to try to capture who was watching/listening to unauthorized broadcasts of matches. I wanted to write a little more on this, inspired by a comment from Professor Annemarie Bridy, who pointed out that anti-piracy enforcement goes hand-in-hand with surveillance:

We recently noted that the DOJ seemed to have shifted its thinking and is now likely to approve T-Mobile's highly problematic $25 billion merger with Sprint. Why? As it stands, the merger would eliminate one of just four major US wireless competitors, dramatically reducing any incentive to compete on price and inevitably resulting in layoffs. So T-Mobile lobbyists have launched a hail Mary pass: they're proposing spinning off a part of the company and potentially selling it to a competitor like Dish Network. This would create a new fourth carrier to (theoretically) help offset any potential competitive harm.That theory gained traction again with yet more reports stating that Dish would buy about $6 billion in T-Mobile and Sprint assets in an attempt to force this new fourth carrier into existence:

Nothing's too much to sacrifice for the greater good of Australia. Not even Australians.A series of police raids on journalists has raised questions about how far the government will go to control what Australian citizens know about their government's activities. Three separate raids targeted leaks that revealed, among other things, possible war crimes committed by Australian soldiers and the government's plans to place its own citizens under surveillance by expanding the power allotted to the Australian Signals Directorate.The unintentional side effect of government raids designed to discourage further reporting on government secrets is the government is now confirming one of the leaks it targeted.

Sometimes it's the things you don't do that can hurt you. The Sixth Circuit Court of Appeals has handed out a reminder to law enforcement officers that standing around while rights are violated can leave you just as liable as if you'd violated those rights yourself.The allegations behind the lawsuit and this rare denial of qualified immunity are horrifying. Being jailed is never pleasant, but the deputies involved in this case went out of their way to ensure this booking was particularly degrading. Keep in mind this was nothing more than an arrest for drunk driving. From the decision [PDF]:

We've entered something of a moral panic, or at least an impressive uptick in public awareness, around the concept of deep fakes. These videos, edited and manipulated through technology, have managed everything from making the Speaker of the House appear drunk to putting caricature-like words in the mouth of Facebook's Mark Zuckerberg. On the topic of Facebook, it's been somewhat interesting to watch various internet sites deviate on exactly how to approach these deep fakes once they are reported. Facebook kept up the Pelosi video and, to its credit, the Zuckerberg video, but added some text to alert viewers that it was faked. Other sites, such as YouTube, have chosen to take certain deep fake videos down.One of those, as occurred recently, was a deep fake of Kim Kardashian that altered an interview given to Vogue Magazine, such that she appears to be discussing a conspiratorial group called Spectre and giving her own fans a hard time. It's all fairly parodic and not something that passes the most basic smell test. And, yet, as the discussion rages on as to how sites should respond and handle deep fakes, this particular video was taken down due to a copyright claim.

On Tuesday we did a deep dive into the whole kerfuffle over Genius claiming that Google was "scraping" its lyrics and explained why the whole story was a huge nothingburger. There are lots of reasons to be worried about Google, but this was not one of them. Among the many, many points in the article, we noted that Google had properly licensed the lyrics, that LyricFind admitted that it was the one responsible, that most publishers don't even know the lyrics they're licensing in the first place, and that basically everyone just copies them from everyone else. And, now, just to put a fine point on how this entire story in the Wall Street Journal (which has published multiple anti-Google editorials over the past few years) was concocted just to attack Google over something it hadn't done, a Wired article analyzing the situation notes that Microsoft's Bing and Amazon Music also display the identical lyrics that appear to have the "coded" or "watermarked" apostrophes that Genius put in place:

Internet hellhole 8chan has been hit with a federal search warrant. The site, created to serve those who felt 4chan's nearly-nonexistent moderation was too restrictive, has been front and center recently due to its hosting of manifestos by mass shooters who apparently frequented the site.In this case, an investigation into a shooting at a California mosque has led the FBI to the pages of 8chan. Postings at the site -- along with some at Facebook -- have linked the shooter to the Christchurch shooting in New Zealand. According to the affidavit [PDF], the FBI believes the California mosque shooter was "inspired and/or educated" by the New Zealand's shooters manifesto and actions.The Poway shooter is already in custody, so the value of the information sought here is questionable. While the info may have some value in establishing the shooter's state of mind, as well as his connection to other crimes, the warrant does bear some resemblance to a fishing expedition.From the affidavit, it appears the feds have no shortage of evidence to use against the shooter:

Senate newbie Josh Hawley has made it clear that he's no fan of big internet companies and has joined with others in suggesting that Section 230 is somehow to blame for whatever it is he dislikes (it mainly seems to be he thinks the public likes them too much). So now he's proposed a massively stupid and clearly unconstitutional bill, called the "Ending Support for Internet Censorship Act," to wipe out CDA 230 protections for large internet platforms. The proposal is shockingly dumb and so obviously unconstitutional it boggles the mind that Hawley is actually a constitutional lawyer.The bill is pretty straightforward, both in how it operates, and in how misguided it is. If you're a "big" internet platform -- defined as having more than 30 million "active monthly users" in the US or more than 300 million such users globally (or having over $500 million in revenue) -- then you automatically lose the protections of CDA 230. You can regain them by making a request to the FTC. In order to get them, you have to pay for an "audit" of your content moderation practices, and pro-actively "prove" via "clear and convincing evidence" that the practices are "politically neutral." Once the you do that, the FTC would "vote" on whether or not you could get CDA 230 protections, and they would only be granted with a "supermajority vote," which would mean at least four out of the five commissioners would have to vote for it. Since FTC Commissioners are always 3 to 2 in favor of the political party in the White House, that means any internet company that wants to get approval would need to get at least one commissioner of the non-Presidential party to vote for the immunity as well.There's no way this survives constitutional scrutiny (if it actually becomes law, which seems unlikely). The First Amendment pretty clearly says that Congress can't create a law that (1) forces a company to get approval for its moderation practices and (2) judges content on whether or not it's deemed "politically neutral." Also, what the hell does "politically neutral" even mean? It doesn't mean anything. And, as for "clear and convincing evidence," tons of people have pointed to clear and convincing evidence that these platforms don't moderate based on political viewpoints, and yet we still have tons of people insisting they do. Nothing is going to convince some people that the platforms are actively targeting conservatives, no matter how many times evidence to the contrary is presented. Hawley has set up a purposefully impossible standard. As we've pointed out, many people still insist that Twitter deciding to kick off literal Nazis is "evidence" of anti-conservative bias. As NetChoice points out, Hawley's bill would require sites to host KKK propaganda just in order to obtain basic liability protections.Is Josh Hawley truly arguing that any large website must cater to Nazis if it wants to allow public conversation? Because, damn, dude, that's a bold call.This is from the guy who claims to be a "Constitutional Conservative"? Really? His current bio hypes up that he's a "leading constitutional lawyer" and talks about how he was one of the lead attorneys in the Hobby Lobby case, which was (in part) defending a company's right to use the First Amendment to refuse to obey certain laws that violated the religious beliefs of their owners. So, apparently, in that case, it's bad for the government to enforce rules for private businesses -- but for other kinds of companies, the government should force them to moderate content in a particular way? I mean, is Hobby Lobby forced to be "politically neutral" in the products it sells in its shops? You'd expect Hawley to be at the front of the line screaming about how awful that would be. Can you imagine the stink that Hawley himself would put up if Congress attempted to force Hobby Lobby to be "politically neutral" in its own actions?Either way, this law is a non-starter, and once again shows that Hawley isn't legislating from any position of principle, but is grandstanding clearly unconstitutional ideas in the belief that self-identified "conservatives" hate the big internet companies these days, so any attack on them, no matter how dumb and unconstitutional, must be fine. As TechFreedom points out, this is little more than a fairness doctrine for the internet -- something conservatives have been against for decades. Incredibly, for all of the misguided and misleading complaints about how "net neutrality" was the "government takeover of the internet," Hawley's bill actually does a bunch of the things that opponents to net neutrality pretended net neutrality would do -- and yet, because it's politically expedient, you can likely bet that many of those who were against net neutrality will now support Hawley's ridiculous bill.

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Everyone's got it out for Section 230 of the Communications Decency Act these days. And pretty much any excuse will do. The latest is that last week, Rep. Adam Schiff held a hearing on "deep fakes" with a part of the focus being on why we should "amend" (read: rip to shreds) Section 230 of the Communications Decency Act to "deal with" deep fakes. You can watch the whole hearing here, if you're into that kind of punishment:One of the speakers was law professor Danielle Citron, who has been a long time supporter of amending CDA 230 (though, at the very least, has been a lot more careful and thoughtful about her advocacy on that then many others who speak out against 230). And she recommended changing CDA 230 to deal with deep fakes by requiring platforms take responsibility with "reasonable" policies:

Shortly after the Christchurch mosque shooting, the New Zealand government's censorship board decided to categorize almost everything related to the shooting (the shooter's manifesto, his livestream of the shooting, his social media posts) as "objectionable." This wasn't a case of reaching an obvious conclusion. Officially terming it "objectionable" made it a criminal act to distribute any of this content via social media or other services.Having done that, the government wasted no time bringing criminal charges against violators. The first arrest happened only two days after the shooting, netting the government an 18-year-old defendant. The more interesting arrest was the second one, which landed Phillip Arps, a local businessman with some not-so-latent white nationalist leanings.Arps spent the hours after the shooting refusing to condemn the violent act and -- the event triggering the criminal charges -- passing around footage of the shooting. Not all that surprising for a man whose company is named after a German prison camp and who charges $14.88 a foot for insulation installation.Since each count against Arps could have netted him a max 14 years in prison, the final sentence seems comparatively light.

It's been nearly a decade since we last wrote about the Australian aborigine flag and the insane copyright issues surrounding it. That time, back in 2010, it involved the copyright holder of the flag forcing Google to edit the flag out of one of its famous Google doodles, where it had originally been included as part of an Australia Day celebration. The problem, as you might have guessed, is that the flag was designed in the early 1970s "as a symbol of unity and national identity" by Harold Thomas. Because it was the creation of a private individual, and not a government, Thomas claims to hold a copyright on the image. He didn't do much with that copyright for decades, while the flag became an established symbol for indigenous Australians. Then, suddenly, he discovered he held the copyright and started making use of it.Apparently, that's ramped up even more in the last few months after Thomas did a licensing deal with a clothing company, followed by the traditional "sending of the cease-and-desist letters."

The Australian government approved an amended copyright law late last year that made subtle changes to what types of sites ISPs can be ordered to be blocked by the courts, and the process by which that order is obtained. Essentially, the changes amounted to allowing blocking of sites with the primary "effect" being copyright infringement, rather than the primary "purpose", along with an expedited process for getting additional site-blocking orders for sites that set up mirror sites to route around the blocks. Before the ink on the legislation was even dry, just as we warned, Village Roadshow and a bunch of American entertainment companies swooped into the court system to order blocks on all kinds of sites.And now it appears those groups were just getting started. After getting 181 domains blocked late last year, industry groups have decided to expand that with a recent request to block an additional 105 domains.

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So, if someone can be sentenced to two years in prison for 40 minutes of newspaper website defacement performed by a party other than himself, it stands to reason someone who took down five websites would be looking at a minimum of ten years in jail.Welcome to the hilarious and tragic world of CFAA-related sentencing. Matthew Keys was hit with a two-year sentence for supposedly sharing his login password (something Keys has steadfastly denied doing), an act that resulted in someone else subjecting the L.A. Times website to a 40-minute inconvenience. The momentary vandalism of the site's landing page suggested Congressional representatives were being pressured to elect CHIPPY 1337. No. Seriously. That was the extent of the "damage."Once the DOJ decided this was worth pursuing under the CFAA, internal L.A. Times' emails regarding the "hack" suddenly cost $225/each to create. The feds wanted five years but settled for two. And while Matthew Keys served his sentence, no one in the federal government made any effort to locate the person who actually performed the website defacement.A more serious hacking -- one that resulted in five news websites being completely unreachable for a short period of time -- has netted the "hacker" involved with a very lenient sentence.

Last fall I wrote about the Supreme Court agreeing to hear a case that some argued would allow the Supreme Court to declare that social media sites were public forums thereby limiting their ability to block or ban certain users. A key argument brought forth by many who have been kicked off of various social media platforms is that under a strained reading of both the Pruneyard case (a very narrowly ruled case, establishing malls as public forums) and the Packingham case (which said states cannot create laws that ban people from the internet), is that social media platforms like YouTube, Facebook and Twitter are some sort of quasi-public forums, and therefore the 1st Amendment applies to them as state actors... and therefore they can't ban anyone or block content. This has never made much sense, and required a pretty twisted reading of those other cases -- but there was some thought that this new case might allow the Supreme Court to weigh in on the subject.The details of the case are a bit involved -- and you can read the original post for more details -- but the short version is that two producers were fired from a public access channel, Manhattan Neighborhood Network, for criticizing MNN. The two fired producers, DeeDee Halleck and Jesus Melendez, argued that this violated the 1st Amendment, because MNN was set up by New York City's government, as required by New York State. Thus, there was a strong argument that MNN was a public forum, given the state's role in creating it. The 2nd Circuit agreed that it was a public forum and MNN appealed to the Supreme Court, raising the specter that if the ruling were allowed to stand, it could end up being applied to the various social media platforms as well, creating quite a mess.As I wrote in my post about it, this seemed like a stretch as well, since the state's role in creating MNN was a key factor here, and that was not at all true with social media platforms. I also thought that the Supreme Court would likely rule narrowly and avoid the issue of social media platforms altogether -- though, given the political climate, I feared that the Supreme Court would say something stupid on this and create a new mess. Instead, the ruling, which came out earlier this week, went in the opposite direction. While the ruling itself doesn't directly apply to social media, the Supreme Court actually reversed the 2nd Circuit ruling that declared MNN a public forum, and very strongly hinted that it's ridiculous to think social media platforms could be considered public forums. And, for all the so-called "conservatives" who have been the most vocal in promoting the theory that social media sites are public fora governed by the 1st Amendment, it might surprise them to find that it was the so-called "conservative Justices" who decided this one, with Kavanaugh writing the opinion, joined by Roberts, Thomas, Alito and Gorsuch -- and Sotomayor writing the dissent, joined by Ginsburg, Breyer and Kagan.Indeed, hysterically, it appears that a key argument made by the majority to argue against a finding of a public forum is one from one of the "conservatives" currently suing a platform. Stay tuned for that tidbit. But first, the decision itself. I was wrong in expecting the court to uphold the 2nd Circuit's ruling (and my fear was that they would apply it in a way that was too broad). But Kavanaugh and the majority make it clear that they see public forum doctrine to be very, very, very limited. And it doesn't apply to a public access TV network, even one created by the state.

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So just over a year ago the FCC quickly rushed to kill net neutrality at telecom lobbyists' behest. As we noted last week, the repeal did far more than just kill net neutrality protections; it effectively freed uncompetitive telecom providers from most meaningful oversight. With a few notable exceptions, most ISPs have tried to remain on their best behavior for two reasons: one, they're worried about the ongoing lawsuit from 23 State AGs that could potentially restore the rules any day now. And two, they don't want to run afoul of the nearly two dozen states that passed their own net neutrality rules in the wake of the repeal.Of course this all occurred because of the Ajit Pai FCC claim that killing the rules would result in amazing broadband growth, competition, and investment. But as people keep digging into the numbers, they've (surprise!) increasingly realized that absolutely none of those promises ever materialized (and aren't likely to without more competition). The latest case in point comes courtesy of longtime journalist Rob Pegoraro, who again noted how that supposed investment boon never happened, and in fact many ISPs are already pulling back on investment thanks to limited competition and tepid regulatory oversight:

You may have seen this story in various forms over the weekend, starting with a big Wall Street Journal article (paywall likely) claiming that Genius caught Google "red handed" in copying lyrics from its site. Lots of other articles on the story use the term "red handed" in the title, and you'll understand why in a moment. However, there's a lot of background to go over here -- and while many Google haters are making a big deal out of this news, after going through the details, it seems like (mostly) a completely over-hyped, ridiculous story.First, a little background: for pretty much the entire existence of this site, we've written about legal disputes concerning lyrics sites -- going all the way back to a story in 2000 about LyricFind (remember that name?) preemptively shutting itself down to try to work out "licensing" deals for the copyright on lyrics. Over the years, publishers have routinely freaked out and demanded money from lyrics sites. As we've pointed out over and over again, it was never clear how this made any sense at all -- especially on crowd sourced lyrics sites. It's not as though lyrics sites are taking away from the sales of the music -- if anything, they're the kinds of thing that connects people more deeply to the music and would help improve other aspects of the music business ecosystem.Over time, however, more and more sites realized that it was just easier to pay up than fight it out in court. One of those sites was Genius -- originally "RapGenius" -- which was called out by the National Music Publisher's Association as one of the "worst" infringers out there a few years back. Genius eventually caved in and agreed to license lyrics, despite incredibly strong fair use claims (since the whole point of Genius was to allow for annotation and commentary).However, in this latest case, it's now Genius that's complaining about someone else copying its content. Except... it's not Genius' content. This is what makes the story bizarre -- which we'll get to in a moment. However, first, it is worth highlighting the somewhat fun way in which Genius apparently "caught" Google using content from the Genius site as its source material. Basically, Genius hid a code in whether it used "straight" apostrophes or curly "smart" apostrophes:

The awful Article 13/17 of the EU's Copyright Directive only seems to have passed thanks to some MEPs voting for it by mistake. But the European Parliament was not the only arm of the European Union where there was strong resistance to the awful ideas contained in the upload filter proposal. Some individual governments were also against aspects of the law. For example, right at the end of the legislative process, in April 2019, no less than seven EU nations expressed their serious concerns. One of them was Poland, which issued a joint statement (pdf) with the Netherlands, Luxembourg, Italy and Finland, including the following:

The Ninth Circuit Court of Appeals has just handed down a refresher [PDF] on a few legal issues, most notably what is or isn't "reasonable" when it comes to suspicion. Police officers thought an anonymous tip about a man carrying a gun and someone running away from them created enough suspicion to chase down Daniel Brown, stop him at gunpoint, and search him for contraband.Contraband was found, leading to Brown's motion to suppress. The lower court said this combination -- an anonymous report of a gun and Brown's decision to run when he saw the police cruiser -- was reasonable enough. Not so, says the Ninth Circuit, pointing out the obvious fact that a person carrying a gun can't be inherently suspicious in a state where carrying a gun in public is permitted.

We've noted for many years that (like so many "internet of things" devices) modern smart televisions have the security protection equivalent of damp cardboard. Not only are they often easily hacked (something intelligence agencies are super excited about since it gives them audio access to targets), but the companies that make them have been busted repeatedly for hoovering up user usage data (and even audio from your living room), and then failing to adequately secure it.This week, Samsung took a bit of heat for urging the company's TV customers to, for the first time, occasionally run an antivirus scan on their television sets. The Tweet was online online briefly before Samsung deleted it, apparently realizing it only advertised the fact that you shouldn't be getting viruses on your TV set in the first place:That's amusing for several reasons. One, because customers wouldn't be getting viruses on their television sets if these products had even the most basic security protections, something TV vendors have failed at for years. Two, because it highlights how many modern televisions have become insanely complicated. Not because consumers necessarily want them to be insanely complicated, but because most TV vendors want you using their embedded streaming platforms and as opposed to a third-party streaming device (like Roku, Chromecast, or a game console).And of course they want you using their streaming platforms because they want to monetize your viewing and other profitable data. As a Vizio executive recently acknowledged, this can help subsidize the cost of cheaper TV sets. That creates a dilemma whereby the consumer is forced to pay a premium if they want a TV set that simply displays a god-damned image and doesn't hoover up their personal data: