Hypocrisy: Rupert Murdoch Has Always Hated Antitrust; But Now He Wants It Used Against Internet Companies Who Out Innovated Him

from the the-cronyiest-of-capitalists dept

It's no secret that Rupert Murdoch is an extreme hypocrite. He spent decades railing against any kind of regulatory powers to hold back companies, but as soon as his own attempts to build an internet empire flopped dramatically, he's come around to being a major booster of regulatory crackdowns. Just only against the companies who out-innovated him. For years now he's been demanding that governments force the internet companies to pay him money -- a move that has been successful in his home country of Australia.

The latest is that Murdoch, who built his business empire by buying up competitors and doing everything possible to avoid antitrust authorities, is now a major force behind supporting antitrust efforts -- so long as they're aimed at the internet companies. When the Democrats released their 5 antitrust proposals last week, each one (perhaps somewhat surprisingly) had a Republican co-sponsor. That appears to have been thanks to Murdoch:

Fox Corp. and News Corp. lobbyists have been urging GOP members to support the bills this week, according to people familiar with the efforts, with two sources saying there could be as many as 3 to 4 GOP co-sponsors on each bill. Talks are ongoing....

Say what you want about Rupert Murdoch, but the idea that he's a free marketer and against regulations is nonsense. That was only true when the regulations involved his companies. Now that he's failed to innovate, he's spent the last decade demanding that governments punish the companies who actually competed better than he did. He's the cronyist of the crony capitalists.

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Will Congress' Big New Push On Antitrust Actually Solve Any Competition Issues?

from the probably-not dept

On Friday, as has been widely expected for a while, a bunch of House lawmakers led by David Cicilline introduced five new antitrust bills that would, if they become law, completely reshape how antitrust works in the US. At least for tech companies. Somewhat notably, many of the bills seem written specifically to target just one industry and to avoid having to deal with other industries. The text of the bills has been floating around all week as the Democrats who are pushing them hoped to find some Republican co-sponsors. And, based on Friday's press release, it appears they found at least one Republican to sponsor each bill (though only four Republicans in total, as they got Lance Gooden to agree to sponsor two of the bills).

Now, most of the bills strike me as extremely problematic -- and even me just saying so will lead people to claim I'm somehow in the tank for these companies. Nothing is further from the truth. I'm all for creative ideas on how to end the dominance of the largest companies and to increase competition. But I fear poorly thought out proposals will have massive unintended consequences that go way beyond punishing Facebook, Google and Amazon.

Each bill does something different, and there are some occasionally creative and interesting ideas in them, but it really seems like these bills are more designed to destroy the thriving tech industry out of spite, rather than to actually encourage competition. As noted above, I'm in agreement that it would be good if we got more competition in the tech industry, but these bills take a very backwards-looking view on how to do that, basically by punishing companies for building successful products, rather than looking for ways to enable more actual competition. I've written before on ways to actually break up the dominance of big tech players, mainly by getting rid of many of the existing rules that have allowed the big players to block and limit competition. But these bills don't do that. They take a much more punitive approach to successful companies, rather than an approach that enables more competition through innovation. That's disappointing.

To me, the one that seemed most interesting at a first glance was the ACCESS Act ("Augmenting Compatibility and Competition by Enabling Service Switching Act") by Rep. Mary Gay Scanlon. It basically requires "covered platforms" to maintain open APIs for interoperability and data portability. And, at a first pass, that is a good thing, and obviously quite consistent with my belief that we need to build a future that is based more on open protocols rather than silo platforms. Portability and interoperability are certainly a step in the right direction for that.

However, the way the bill actually is written suggests a real lack of futuristic technical thinking. It would lock in certain ideas that don't necessarily make any sense. Basically, all this bill would actually do is make sure that you could transfer your data out of an existing internet giant. The big internet companies already do this... and because of the way it's been implemented, it's almost entirely useless and doesn't help anyone. This bill wouldn't change that, unfortunately.

On top of that, this bill fails to deal with the very real and very tricky challenges regarding data portability and interoperability as it pertains to privacy. Instead, the bill just handwaves it away, basically saying "don't do bad stuff regarding privacy" with this data. That's... not going to work, and is more or less an admission that the drafters of the bill don't want to deal with the very significant challenges of crafting a data portability/interoperability setup that is also congruent with protecting privacy.

The real way to do this would be to separate out the data layer so that it's not controlled by the centralized companies at all, but in the hands of the end-users or their agents. But while that could happen as an accident of this bill, it's clearly not the intent. Thus it seems like this bill would not help very much, and that's a real missed opportunity. It's nice that it recognizes portability and interoperability as issues, but it doesn't do the hard work necessary to make that actually meaningful.

Finally, perhaps the most problematic (by far) part of this bill is that if a "covered company" wants to change its APIs, it would need to get FTC approval -- and that seems like a terrible idea. Imagine having to get approval from the government every time you change your API? What? No. Bad.

A covered platform may make a change that may affect its interoperability interface by petitioning the Commission to approve a proposed change. The Commission shall allow the change if, after consulting the relevant technical committee the Commission concludes that the change is not being made with the purpose or effect of unreasonably denying access or undermining interoperability for competing businesses or potential competing businesses.

I mean, yikes. That's going from permissionless innovation -- the very core of our innovation engine -- to having the FTC act as the approver of any slight change to an API. That's really, really bad.

The bill that may get the most attention is Cicilline's own bill that basically says successful internet companies could no longer promote their own ancillary services over those of competitors. Basically, Google couldn't insert its own local results, or its own maps, over a third party's. Think of this as the Yelp Finally Forces Google To Use Yelp's Listings Act, because that's the main driver behind this bill. Basically, some companies that do more specialized search and content don't want Google to be able to compete with them, and more or less want traffic they might not have earned. I can see a slight argument for how the practice of actual monopolies favoring their own services and excluding others could be anticompetitive, but this bill would make it defacto anti-competitive -- and that seems likely to create massive unintended consequences that won't be very good for the internet.

There are, after all, lots of cases where it makes quite a lot of sense for companies to link their ancillary products. Yet, here, doing so will almost definitively lead to a costly antitrust fight, meaning that it will be quite difficult for many companies to build useful complementary services. I don't see how that benefits the public. Again, it seems that a much better solution would be to remove the barriers that currently limit the ability for third party competitors to step in and build tools that interoperate with the bigger players, but that's not the goal here. The goal seems to be to restrict the big internet companies to much more limited offerings, rather than providing a wider suite of services.

Another major change comes from Rep. Hakeem Jeffries, and would effectively make it much, much harder for internet giants to buy companies. A key part of the bill is that the acquiring company would have to affirmatively show that the merger is legit, rather than the government having to show that the merger is problematic. Shifting the burden of proof would basically mean that most such mergers would be presumed unlawful, rather than the opposite. This could have huge and problematic implications for how our economy operates today.

On the good side, the bill would give the FTC and DOJ more resources to review acquisitions. However, as we've discussed before, in trying to block out anti-competitive acquisitions (which are a legitimate concern!) a bill this broad will almost certainly knock out other kinds of important and useful acquisitions (such as ones that keep failing or flailing services alive). More importantly it may take investment capital away from competitive entrepreneurial ventures.

No good investors invest in a company with a plan to just sell it off to a big tech company (indeed, most investors will ask startups how they would deal with such a competitive threat), but having the big guys act as a buyer is an alternative out -- not as successful as succeeding on your own, but still better than losing all of the investment entirely -- makes it easier for the investors to make these kinds of bets. Now that possibility of return will become much more difficult, meaning that investment capital is less likely to go to entrepreneurs trying to create competitive solutions. And that's not good!

A separate bill from Rep. Neguse basically just raises the cost of mergers and acquisitions and... um... sure? Fine. I don't see that as problematic really. I mean, at the margins, making it more costly to do an acquisition might be a nuisance, but the changes and increases don't seem particularly significant here -- and certainly not enough to stop a major acquisition (though, arguably it might drive down the amount that the owners of the acquired company get, effectively transferring it to the government). Consider it kind of a slight tax on selling your business. The bill would also increase funding to the FTC and DOJ to work on antitrust issues, and that seems reasonable as well.

Finally, there's Rep. Jayapal's bill that is pretty clearly designed to just stop Amazon from selling its own goods on Amazon. I know this is an issue lots of people complain about, but it remains unclear to me how much of an actual problem it is. Lots of retailers sell house branded products and compete against others without much of a problem. Costco has its house Kirkland brand, which it sells alongside other companies' competing products. Is that so problematic?

As some are pointing out already, these bills could kill off (or severely limit) a bunch of services that people actually like, mostly as punishment that the innovations have been so successful. And that's a problem.

It's fine to admit that there's a delicate balance here. How do you stop companies from becoming too powerful such that they alone squeeze out or stifle competition, while at the same time not putting in place stringent rules that, by themselves, stifle useful innovations? There really are two major themes of approaches: (1) punish or limit the ability of companies to act or (2) figure out better ways to create incentives for competitors to succeed. Unfortunately, regulators tend to jump to (1) and avoid even trying (2). That seems to be the case here.

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Senator Wicker Introduces Bill To Guarantee The Internet Sucks

from the you-did-what-now? dept

Why does Senator Roger Wicker from Mississippi hate the internet? Wicker, who has a close relationship with big telcos, who have long made it their mission to destroy the open internet, was already a co-sponsor of an awful "Section 230 reform" bill last session, and is back now with what he's ridiculously calling the "PRO-SPEECH" Act. It stands for "Promoting Rights and Online Speech Protections to Ensure Every Consumer is Heard Act." But, in reality, it is a blatant (and unconstitutional) attack on free speech.

The bill more or less bans any website from doing any moderation. The key part:

An internet platform may not engage in a practice that does any of the following:

(1) Blocks or otherwise prevents a user or entity from accessing any lawful content, application, service, or device that does not interfere with the internet platform's functionality or pose a data privacy or data security risk to a user.

(2) Degrades or impairs the access of a user or entity to lawful internet traffic on the basis of content, application, service, or use of a device that does not interfere with the internet platform's functionality or pose a data privacy or data security risk to a user.

Consider it the all porn and all spam allowed act! Kind of ironic for a Senator who once pushed an unconstitutional ban on selling video games to children. Under this bill, sites couldn't even stop kids from accessing or playing violent or pornographic video games.

There are two exceptions, both of which are silly. One is for "small internet platforms." And the other is... wait for it... if you declare yourself a "publisher" then it no longer applies. Yes, that's right. Senator Wicker is trying to make the ridiculous and nonsensical "publisher/platform" distinction an actual thing, despite the fact that this is blatantly unconstitutional.

Let's just remind everyone how this works: the 1st Amendment includes both the right for any website hosting content to make editorial decisions about what it will and won't include, as well as a right of association to say "I don't want to be associated with that stuff." In this setup, where a site has to declare itself a platform or a publisher, that effectively means taking away the 1st Amendment rights of a platform and turning into a garbage dump of spam and porn. Or... it has to declare itself a "publisher" at which point it faces liability for everything that shows up.

The end result is that this bill leans into the moderator's dilemma and creates two types of internet sites: complete garbage dumps of spam/abuse/porn/harassment where no moderation can take place, and Hollywood-backed squeaky clean productions. It wipes out the parts of the internet that most people actually like: the lightly moderated/curated user-generated aspects of social media that enable lots of people to have a voice and to connect with others, without being driven away by spammers, assholes, and abusers.

It also throws in this tidbit to make it clear Wicker doesn't want social media sites to kick Nazis off their platforms any more:

An internet platform may not take any action against a user or entity based on racial, sexual, religious, political affiliation, or ethnic grounds.

Thing is, discrimination on racial, sexual, religious, and ethnic grounds is already covered under civil rights laws -- and they're protected classes because they're mostly things inherent to someone, and not choices they make. Your political views and affiliation are different. And, the fact is, there are almost no sites out there (despite what ignorant people are screaming) that do any moderation based on political affiliation. Or, if they do, it's to literally ban the American Nazi Party. But under Wicker's bill, you couldn't ban the American Nazi Party or its members any more.

I wonder why he wants that?

Then there's the "I'm protecting Parler" part of the bill. It says this would be a presumed method of "unfair competition."

Any action taken by a larger internet platform that wholly blocks or prohibits an internet platform that competes with the large internet platform (or any affiliate of the large internet platform) from making use of the large internet platform.

So, this would mean that a platform like Parler could violate every policy it wants of companies like Amazon, Google, and Apple, and they would not be allowed to kick it off for any of those policy violations.

There are also onerous transparency requirements based on the false idea that there is a clear set of rules that every platform uses, rather than an ever-changing and evolving set of policies that is constantly dealing with edge cases.

The whole thing is a stupid wishlist of whiny fake conservatives who want to play the victim and claim they're oppressed for the culture war they're waging. But the end result would be wiping out all the important and useful parts of the internet, and dividing into two piles: all garbage all the time, or the Disney-fied, locked down part. No one should want that.

Which makes you wonder why Wicker does.

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Music Publishers Sue Roblox In Full Frontal Assault On The DMCA

from the here's-a-big-one dept

A huge and potentially important copyright lawsuit was filed this week by basically all of the big music publishers against the immensely popular kids' gaming platform Roblox. Although the publishers trade association, the NMPA, put out a press release claiming the lawsuit, it doesn't appear that NMPA is actually a party. The lawsuit is, in many ways, yet another full frontal assault on the DMCA's safe harbors by the legacy music industry. There's a lot in this lawsuit and no single article is going to cover it all, but we'll hit on a few high points.

First, this may seem like a minor point, but I do wonder if it will become important: buried in the massive filing, the publishers mention that Roblox did not have a registered DMCA agent. That seems absolutely shocking, and potentially an astoundingly stupid oversight by Roblox. And there's at least some evidence that it's true. Looking now, Roblox does have a registration, but it looks like it was made on... June 9, the day the lawsuit was filed.

Wow. Now, that may seem embarrassing, but it might actually be more embarrassing for the Copyright Office and raise a significant and important legal question. Because it appears that Roblox did at one time have a DMCA agent registration but, as you may recall, back in 2016, the Copyright Office unilaterally decided to throw out all of those registrations and force everyone to renew (and then to renew again every three years through a convoluted and broken process).

There's an argument to be made that the Copyright Office can't actually do this. The law itself just says you need to provide the Copyright Office with the information, not that it needs to be renewed. The Copyright Office just made up that part. Perhaps we finally have a test case on our hands to see whether or not the Copyright Office fucked up in dumping everyone's registration.

Still, that's a minor point in the larger lawsuit. The publishers throw a lot of theories against the wall, hoping some will stick. It seems like most should be rejected under the DMCA's safe harbors, because it truly is user generated content, even if the lawsuit tries a variety of approaches to get around that. Part of the lawsuit argues contributory and vicarious copyright infringement, more or less pulling the "inducement" theory from the Grokster ruling, which basically says that if you as a company encourage your users to infringe, you could still be liable (this is, notably, nowhere in the actual law -- it's just what the Supreme Court decided).

But to get there, the lawyers for the music publishers seem to want to take a Roblox executive's comments completely out of context, in a somewhat astounding manner. The "proof" that Roblox is encouraging people to infringe is here:

Roblox is well aware that its platform is built and thrives on the availability of copyrighted music. As Jon Vlassopulos, Roblox’s global head of music, publicly stated just last year: “We want developers to have great music to build games. We want the music to be, not production music, but really great [commercial] music.” (Alteration in original). To that end, Roblox actively encourages its users to upload audio files containing copyrighted music and incorporate them into game content on the Roblox platform. Roblox advertises the importance of music in games and makes it easy for users to upload, share, and stream full-length songs.

But... if you read the article that they're using for that Vlassopulos quote, it's not directed at developers and users of their platform. It's targeted at musicians and the music industry. The whole point of the quote is to let musicians and the industry know that Roblox is open to licensing deals. It's pretty obnoxious to try to spin that as encouraging people to infringe when, in context, it sure looks like the exact opposite. I mean, literally the next sentence (which doesn't make it into the lawsuit) is about how they're "testing the waters" by making a deal with a small indie label to make all of its music available on Roblox.

So it seems to be Roblox saying the exact opposite of what the publishers are claiming. That's... kinda fucked up.

The lawsuit also tries to spin the impossible task of trying to moderate as proof that any failures in moderation are deliberate.

There is no question that Roblox has the right and ability to stop or limit the infringement on its platform. But Roblox refuses to do so, so that it can continue to reap huge profits from the availability of unlicensed music. While Roblox touts itself as a platform for “user-generated” content, in reality, it is Roblox—not users—that consciously selects what content appears on its platform. Roblox is highly selective about what content it publishes, employing over a thousand human moderators to extensively pre-screen and review each and every audio file uploaded. Roblox’s intimate review process includes review of every piece of copyrighted music, generally identified by title and artist—to ensure that it meets Roblox’s stringent and detailed content guidelines and community rules. This process ensures that Roblox plays an integral role in monitoring and regulating the online behavior of its young users.

Roblox thus unquestionably exercises substantial influence over its users and the content on its platform, ostensibly in the name of “safety.” Yet Roblox allows a prodigious level of infringing material through its gates, purposely turning a blind eye for the sake of profits. Rather than take responsibility, Roblox absurdly attempts to pass the obligation to its users—many of whom are young children—to represent to Roblox that they own the copyrights to the works they have uploaded.

Coincidentally, just last week we published our content moderation case study on Roblox, focused on how it tries to stop "adult" content on the platform. We noted that the company is very aggressive and hands-on with its moderation efforts but (importantly) it still makes mistakes, because every content moderation system at scale will make mistakes.

So just because Roblox is aggressive in its moderation, and even if it says it reviews everything, that doesn't mean that it "refuses" to stop infringement. It just means it doesn't catch it all. Indeed, the company has said in the past that it uses an automated third party monitoring tool to try to catch unauthorized songs (though, notably, this lawsuit is about the publishing rights, not the recording rights, so arguably a monitoring tool might catch some sound recordings while missing other songs that implicate songwriters/publishers -- but that's getting super deep in the weeds).

Indeed, the impossibility of catching everything -- while still encouraging websites to try -- is why we want things like Section 512 of the DMCA or Section 230 of the CDA. If you suddenly make websites liable for any mistakes they let through, then you create a huge problem. And claiming that their aggressive moderation implicates them even more only encourages sites to do less moderation in the long run.

But, the publishers don't care about that. Their end goal is clear: as in the EU, they want to force every website to have to buy a blanket license for music. They basically want to do away with the DMCA altogether, then just sit back and collect payments. They want to change the internet almost entirely from a tool for end users to a cash register for music publishers.

There are some other oddities in the lawsuit. It repeatedly tries to claim that Roblox is liable for direct infringement itself, but that theory seems like a stretch. Even the filings admit that the music is all uploaded by users:

Despite Roblox’s written policies, users regularly upload files containing copyrighted music. The act of “uploading” a file to Roblox involves the user making a copy of the file and distributing it to Roblox, where it is then hosted on Roblox’s servers.

To upload an audio file, a user simply opens the Roblox Studio and clicks on a tab marked “Audio,” which then prompts the user to choose a file on their local hard drive, in either .mp3 or .ogg format to be copied and distributed to Roblox’s servers.

It tries to build out the inducement theory by saying that because Roblox encourages developers to use music in their games, and this is the same as encouraging infringement, but that's nonsense. Nothing in what Roblox says encourages infringement. They're just saying that sound and music can enhance a game. Which is clearly true.

Roblox makes the process of uploading infringing music extremely easy for users. Roblox even published an article designed to encourage developers to add music to their games, which explains: “While building a game, it’s easy to overlook the importance of sounds and music.” (Emphasis added).4 That page gives users step-by-step instructions on how to copy and distribute their music files to the Roblox platform.

So what? That's not telling users to infringe. If anything, it's saying "find some music you're able to add to this legally." You'd think that publishers would be happy about that, as it opens up a new line of business where they could license their music, which is what the Roblox exec was talking about at the beginning. But leave it to the greedy publishers to not want to do the hard work here, and instead try to force a big company into a big payment.

Roblox has already put out a statement saying (not surprisingly) that it's "surprised and disappointed" by the lawsuit. It seems likely that it will mount an aggressive defense, and it could be yet another important case in seeing whether or not the legacy music industry is able to chip away at another important aspect of the DMCA, and to force all websites that host third party content to buy blanket licenses.

“As a platform powered by a community of creators, we are passionate about protecting intellectual property rights – from independent artists and songwriters, to music labels and publishers – and require all Roblox community members to abide by our Community Rules,” said the statement.

“We do not tolerate copyright infringement, which is why we use industry-leading, advanced filtering technology to detect and prohibit unauthorised recordings. We expeditiously respond to any valid Digital Millennium Copyright Act (DMCA) request by removing any infringing content and, in accordance with our stringent repeat infringer policy, taking action against anyone violating our rules.”

“We are surprised and disappointed by this lawsuit which represents a fundamental misunderstanding of how the Roblox platform operates, and will defend Roblox vigorously as we work to achieve a fair resolution,” continued Roblox’s statement.

Of course, this is par for the course for the legacy industry -- especially the publishers as lead by the NMPA's David Israelite. They wait for various internet services to get popular, and then rather than figuring out how that helps them, they sue. It's how they constantly kill the golden goose. They've done it with various internet music services, music games, and more. They're currently trying to do it with Twitch and now Roblox as well. They overvalue the music component, and choke off the long term business prospects for these platforms, many of which have music as an ancillary add-on.

It's silly, short-sighted, and anti-culture. In other words, it's the legacy music industry's usual playbook.

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Instagram's Big Experiment With De-Prioritizing 'Likes' Fizzles As Some People Apparently Really Like 'Likes'

from the ah-well-nevertheless dept

Back in the fall of 2019, we wrote about how Instagram was experimenting with hiding "likes" from US users, to try to cut down on the awkward incentives it created -- such as people obsessing over who and how many people liked the pictures they posted. It was an interesting move, and we appreciated the willingness to experiment with making sure the platform wasn't just encouraging socially problematic behavior. However, now the company has announced that some people really got upset without their likes.

What we heard from people and experts was that not seeing like counts was beneficial for some, and annoying to others, particularly because people use like counts to get a sense for what’s trending or popular....

I mean... that seems obvious? It's not clear why you needed to run a test to find that out. And wasn't part of the point of the experiment to move away from people obsessing over "trending" or "popular" content? Either way, Instagram's solution is to pass the decision on to users.

So... now it's all optional. Perhaps that's better than forcing it on everyone, but it is interesting:

Starting today, we’re giving you the option to hide like counts on all posts in your feed. You’ll also have the option to hide like counts on your own posts, so others can’t see how many likes your posts get. This way, if you like, you can focus on the photos and videos being shared, instead of how many likes posts get.

To some extent this is great. Having more options is good and giving more powers to the end users is obviously good. But it sure sounds like the defaults will still be to include likes, and that means the vast, vast majority of users will still have them.

Casey Newton has some more details about what happened, and says that despite Instagram boss Adam Mosseri really thinking this was going to be a big deal, it turned out that people just didn't really care one way or the other.

“It turned out that it didn't actually change nearly as much about … how people felt, or how much they used the experience as we thought it would,” Mosseri said in a briefing with reporters this week. “But it did end up being pretty polarizing. Some people really liked it, and some people really didn't.”

As Casey notes, this seems to go along with a lot of recent research suggesting that some of the early panic about how "the kids these days" were all obsessing about likes and trends and what not... turns out to not really be that true. It certainly has a lot of the hallmarks about a moral panic involving a new technology and "the kids these days."

Casey concludes that the unexpected lesson from the varied response to this experiment is really that users want more control over their own experience, which is certainly a message some of us have been banging the drum on that point for years. Of course, it remains to be seen if Instagram (and Facebook) bakes that lesson into other parts of the platform going forward...

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Not As Surprising As You May Think: Garland DOJ Says That Trump Denying Raping E. Jean Carroll Was Official Presidential Business

from the the-doj-is-gonna-doj dept

Late last year, we covered the story of the DOJ stepping in to take over a defamation case for President Trump. As we noted at the time, the defamation case itself was pretty weak, though it's similar to a series of other defamation cases we've seen in recent times. E. Jean Carroll claimed that Donald Trump had sexually assaulted her many years ago. Trump later denied the claim, saying that it was "totally false" and saying (incorrectly, as it turns out) that he "never met this person in my life." Carroll then sued for defamation based on the denials. As noted, this kind of defamation case has popped up a few times, including a high profile one against Bill Cosby by one of his accusers as well.

What was perhaps somewhat different about the Carroll case, was that it was against the sitting president, and under the Westfall Act, if the Attorney General "certifies" that an action taken by federal employees that leads to a lawsuit against them was "within the scope of his office or employment," then the DOJ gets to insert itself into the case instead of the initial defendant (and, in a defamation case, then the case would be automatically dismissed, as you can't defame "the United States.")

So, the big question in this situation is whether or not Donald Trump denying sexually assaulting (or even meeting Carroll) was done as part of his official duties as president. I think it's a huge stretch to argue that it does -- and last fall, a judge agreed with me, denying the DOJ's attempt. The judge, Lewis Kaplan, noted that if Trump were talking about policy issues, it would be different, but denying a sexual assault from long before he was president doesn't appear to be official government business. I recognize that some people have argued otherwise, noting that since the accusations came up while he was president, and could potentially impact his job as president, commenting on the claims magically becomes the duty of the president, but that seems incredibly weak, and would effectively make the president immune from defamation claims in most instances.

Judge Kaplan went even further, though, in saying that he didn't think the president is even covered by the Westfall Act. This was surprising, but the argument was pretty compelling, with the key points being:

The president is a constitutional officer. He occupies the highest office in our nation, which is created by Article II of the Constitution. But that is not what Section 2671 requires. It speaks only of “officers . . . of any federal agency,” not officers of the United States within the meaning of the Constitution....

[....[

Because the president is at the apex of the executive branch, many think of him, in a colloquial sense, as the “head” of many federal departments, agencies, and organizations. At the very least, one might imagine that he leads some agency at the core of the executive branch. The government has not attempted to identify any such agency in its papers, but the two most obvious candidates are the Executive Office of the President (“EOP”) and the president’s cabinet. But neither entity fits the bill. The head of the EOP, which is a network of agencies, is the president’s chief of staff. And even if one were to call the cabinet an “executive department” or “independent establishment” – a dubious contention – the president himself is not a member of the cabinet, although the vice president is.

After Biden won the election, many assumed that the new DOJ, under Merrick Garland, would let the matter drop. After all, would a Biden administration really want to be in court trying to kill a defamation case against Donald Trump?

But, of course, that ignores how the DOJ functions, and the importance the DOJ puts on making sure it retains this power in other, future cases. So, while it surprised many, it shouldn't be at all surprising that the DOJ is appealing the decision.

The thing that seems most important to the DOJ is whether or not the Westfall Act applies to the president. For fairly obvious reasons, any presidential administration probably wants that to remain in place:

The district court held that the President is not an “employee of the government” for purposes of the FTCA and, hence, for the Westfall Act, 28 U.S.C. § 2679(b)(1). If that were correct, no action taken by the President could give rise to tort liability on the part of the United States. And the United States could never be substituted as the defendant in a tort action against a President in his or her personal capacity, even when the conduct at issue was incontrovertibly taken within the scope of employment.

Basically, the DOJ says that even if the Court technically read the law properly, no one else has ever read the law that way.

To our knowledge, the United States has never disclaimed liability for torts committed by an executive branch employee on the ground that the employee was not employed by one of the fifteen cabinet level departments identified in 28 U.S.C. § 451. To the contrary, all three branches of government have long construed the statute broadly.

And then it argues that the district court also should have allowed the DOJ to take over the case on the grounds that Trump denying the assault was, in fact, official business. The DOJ brief notes that it was discussing "reprehensible conduct," but that it could still be done within the scope of the President's duties.

Applying these established principles to this case, the statements by then- President Trump fell within the scope of his employment. The district court’s contrary conclusion was premised on an assumption that the statements were not within the scope because “President Trump’s views on [Ms. Carroll’s] sexual assault allegation” were not pertinent to his employment since “they reveal nothing about the operation of government” (SPA53) and “[n]either the media reports nor the underlying allegations have any relationship to his official duties” (SPA58). That premise was mistaken.

When members of the White House media asked then-President Trump to respond to Ms. Carroll’s serious allegations of wrongdoing, their questions were posed to him in his capacity as President. Likewise, when Mr. Trump responded to those questions with denials of wrongdoing made through the White House press office or in statements to reporters in the Oval Office and on the White House lawn, he acted within the scope of his office. Elected public officials can—and often must—address allegations regarding personal wrongdoing that inspire doubt about their suitability for office. Such wrongdoing can include not only the serious charges of criminal behavior leveled here, but a range of activities including fraud and malfeasance. Officials do not step outside the bounds of their office simply because they are addressing questions regarding allegations about their personal lives. Thus, in Ballenger, the D.C. Circuit concluded that a congressman acted within the scope of employment when he allegedly engaged in defamation during an interview to explain the reasons for his separation from his wife. 444 F.3d at 662. The district court’s contrary reasoning in this case fails to appreciate the responsibility that elected officials owe the public to respond to serious allegations that cast doubt on their fitness for office.

Once again, this is the DOJ and the administration doing what the DOJ and any administration is likely to do: protecting their own powers. It shouldn't be surprising, even if it feels weird that the Biden DOJ would continue down this path. It's likely going to be true in a number of other cases started by the Trump DOJ that the Biden DOJ might not have initiated, but doesn't want to hinder future powers.

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Map Of The Internet Exposes The Lie That 'Big Tech' Controls The Internet

from the it's-a-wide-wide-world-wide-web dept

To hear many people talk about things, the entire internet these days is controlled by just a few companies, mainly Google, Facebook, and Amazon. Depending on who you're talking to, you may hear them throw in companies like Netflix. But some of us keep pointing out that while those guys are big, that doesn't mean the rest of the internet stops existing. And it's still incredibly large. If you want this point really driven home, check out this amazing map of the 2021 internet by Martin Vargic (first spotted via Fast Company).

Here's a thumbnail version, but you really should go check out the full size version on Martin's website (or, better yet, buy some prints of the whole thing).

Just the fact that looking at this smaller version above it's nearly impossible to read what most of the "countries" are should give you just a taste of how vast the non-big-tech part of the world wide web really is. There's a lot of "land" out there that isn't controlled by the big players, and we should be celebrating that. On his website he's got a few zoomed in examples as well, including the part that is my favorite: "Protocol Ocean."

Now some may quibble with various aspects of this. It's based on Alexa data, which isn't the most reliable, and it's only covering web traffic, which likely misses a lot of activity that is purely mobile these days. But still, when laid out this way, you really begin to get a sense of the diversity of the web.

The other thing that really stands out for me is that this is an updated map by Vargic. He last produced a map of the internet in 2014 and it looks strikingly different. It seems like a strong visual reminder of just how much the internet keeps changing, even in the fairly short time frame of seven years.

There seems to be this belief among some that the internet has been more or less stuck in place since 2010 when Google, Facebook, and Amazon divided the land between them and wiped the rest of the web off the map. But that was never true, and these maps really drive that point home in a very visual manner.

For what it's worth, if you love getting lost looking at maps like I do, Vargic's entire page is fascinatingly full of maps he's created, many of which explore aspects of actual geography, and plenty of others (like the internet maps) that explore other concepts in map form.

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Data Analysis Shows That Trump's Messages Still Received Tons Of Attention; Though His Disinformation Doesn't Travel As Far

from the what-censorship? dept

We've argued for a while now that social media companies removing Donald Trump's accounts were not censorship, and that he had many other avenues where he could be heard, if he chose to use them. He showed this when he later setup his own blog, though he recently shut it down after getting upset that people were mocking it for its low traffic numbers.

But direct traffic to his blog doesn't mean that he he wasn't able to get his message out there. A new data analysis by the NY Times shows that, in fact, after Trump lost his social media accounts, his message spread on social media just as well as when he had his accounts. While he may not be sending out messages as frequently, or as quite as off the cuff (and unhinged), the messages he does send out seem to get plenty of attention, thanks mostly to lapdog proxies, like Breitbart and Fox News.

One thing that became immediately clear: Mr. Trump’s most ardent supporters continue to spread his message — doing the work that he had been unable to do himself.

The top sharers of the March post included the right-wing publication Breitbart News (159,500 likes and shares), a Facebook page called “President Donald Trump Fan Club” (48,200 likes), Fox News (42,000 likes), and Jenna Ellis (36,700 likes), a lawyer who made regular television appearances as Mr. Trump’s proxy to trumpet his debunked claims of a rigged election.

That doesn't look like censorship to me.

Of course, it's not true of all his posts. Somewhat interestingly, when he's spreading direct disinformation, it doesn't seem to spread as far:

The Times analysis looked at the 10 most popular posts with election misinformation — judged by likes and shares — from Mr. Trump before the social media bans, and compared them with his 10 most popular written statements containing election misinformation after the ban. All the posts included falsehoods about the election -- that the process had been “rigged,” for instance, or that there had been extensive voter fraud.

Before the ban, Mr. Trump’s posts garnered 22.1 million likes and shares; after the ban, his posts earned 1.3 million likes and shares across Twitter and Facebook.

In many, many ways, that's fascinating. It suggests that when he's not spreading misinformation, his messages still travel about as far as before. But when they are direct disinformation, some of the intermediation of 3rd parties creates a bit of friction. That... certainly doesn't feel like censorship. It feels like a marketplace of ideas working kind of as it should?

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Ohio Files Bizarre And Nonsensical Lawsuit Against Google, Claiming It's A Common Carrier; But What Does That Even Mean?

from the this-makes-no-sense dept

There's been this bizarre fascination among conservatives that tons of internet companies should be declared "common carriers." Of course, this ignores decades upon decades of conservatives fighting against any and all attempts to use common carrier designations on businesses that might legitimately be common carriers, like telcos. Again, there are a few key factors that make something a common carrier: (1) that it's about transport (things, people, data) from one place to another and (2) it's a commodified service in which what you get from any particular provider is likely to be mostly the same and (3) there is at least some argument that it's a natural monopoly, in that rebuilding the same infrastructure for multiple providers would be ridiculously inefficient or disruptive or both.

None of those really apply to internet providers (though it may apply to at least some aspects of broadband). But, instead, conservatives have focused in on trying to get Google and Facebook declared common carriers.

And now, Ohio has jumped up to try to force the issue, filing a bizarre lawsuit to declare Google a common carrier. The filing kicks off with talk about how dominant Google is, and then says that the lawsuit is not about dealing with Google's dominance (or even saying whether it's good or bad), but just about having the company declared a common carrier:

This suit does not seek redress for Google’s dominance of internet search. This suit does not argue that Google’s dominance of internet search is good or bad when viewed in isolation. Those issues are left to be resolved elsewhere. This case accepts Google’s dominance of internet search as a fact (be it good or bad). Accepting this fact, the first claim is narrowly focused on establishing that Google’s provision of internet search is properly classified as a common carrier and/or public utility under Ohio common law.

But what does that even mean? Google is not "carrying" anything from one place to another. It's delivering search results and ads (mostly) and a variety of other services as well (though almost all of its other services are not "dominant" and are highly competitive). And it's unclear what being a "common carrier" for search or ads would even look like. Since it's so disconnected from what a common carrier truly is, it's hard to see how any of it fits in at all. It needs to return all search results? Huh? It needs to host all ads?

The whole point of search is to rank the results. If the argument is that it can't rank the results, or exclude bad results, then... does Google just return totally random results? Or must it serve all ads? Even those that are totally irrelevant? How would that even work?

Google operates more than just a search engine. It is a complex and multifaceted business. In addition to providing a general search engine, which it monetizes through an advertising business, Google engages in a range of business lines that compete with not just search engines and online advertisers, but with suppliers of information, products, and services. For its second count, Ohio requests injunctive relief to remedy the unfair advantages Google’s presentation of search results, have allowed it to create for its other business lines.

Well, Ohio, you now have a 1st Amendment problem on your hands. How Google presents its search results is Google's opinion, and that's protected speech under the 1st Amendment. Ohio saying that the search results are "unfair" is a pretty clear 1st Amendment issue, because it's saying that it doesn't like Google's opinion on which search results are most relevant. I can't see how that gets over a 1st Amendment hurdle.

Google intentionally structures its Results Pages to prioritize Google products over organic search results. Google intentionally disadvantages competitors, by featuring Google products and services prominently on Results pages. It often features Google products and services in attractive formats at the top of the Results page above organic search results. Additionally, Google often presents Google products in enhanced ways in the search results that are designed to capture more clicks, including by integrating other Google business lines—such as specialized searches—into the Results page. It does so even when the Google product would not be returned near the top of an organic search. It does not allow competitors to have similar access, thereby violating its duties as a common carrier.

So... again, this goes back to basically being an antitrust argument in disguise, in which it tries to wrap it in an ill-fitting common carriage suit. Whether or not Google favors its own products over others isn't a common carriage issue.

Google knows that most search customers, particularly those customers using mobile devices like cellular phones, will click through to links that are on the highest positions on the Results Page, and/or are presented in enhanced ways. What Google Search users want to see—organic search results—are frequently downgraded to appear below Google products.

If that's actually true, then, uh, again this should go to competition, not common carriage. First, it seems like a huge opportunity for some other search engine to step in and tell people "if you're sick of all those things Google puts on top of the organic search results you want, come to our search engine instead." And there are other search engines out there. But, again, the framing of this lawsuit is just bizarre. It's really trying to be an antitrust lawsuit but trying to shove it through the common carriage hole.

Then, Ohio's AG cite's Justice Thomas's bizarre, unbriefed, nonsensical concurrence in Biden v. Knight, to argue something, something common carrier:

Justice Thomas recently stated, “[t]here is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated.” Biden v. Knight First Amendment Inst. at Columbia Univ., 593 U.S. ___, ___ (Slip. Op. at 6) (2021) (Thomas, J., concurring). Justice Thomas went on to explain, “[t]he analogy to common carriers is even clearer for digital platforms that have dominant market share. … Google search—at 90% of the market share—is valuable relative to other search engines because more people use it, creating data that Google’s algorithm uses to refine and improve search results.”

Again, this was totally unbriefed, and completely unrelated to the issue at play in the case. And, again, there is no indication of what it would even mean for Google to be a "common carrier" in this context.

The complaint then, laughably, claims that Mark Zuckerberg agrees with Clarence Thomas, because of Zuck's politically motivated op-ed saying that the internet needs new regulations. But saying Facebook wants new regulations (which was to (1) appease angry regulators and (2) twist those regulations to prevent competition) is nowhere near meaning that Zuckerberg supports common carriage claims. That's like taking someone saying "it would be good if people ate more vegetables" and responding "so clearly you think everyone should be on an all plant diet all the time!" It's nonsense.

Ohio has an interest in ensuring that Google, its users, and the entities whose information Google carries are aware that Google Search is a common carrier under Ohio law. Ohio also has an interest in ensuring that as a common carrier Google Search does not unfairly discriminate against third party websites; that Google carries all responsive search results on an equal basis; and that it provides the public with ready access to organic search results that the Google Search algorithms produce.

WHAT DOES THAT EVEN MEAN?!? How can search be on an "equal basis" when the whole point of search is to rank and discriminate so that the most useful results come first, and the least useful (or not at all useful, or harmful) results don't show at all?

And, again, Google's ranking of search results is an opinion. It's speech. It's expression. It's protected by the 1st Amendment.

I don't want a search engine designed by Ohio's Attorney General that is forced to give all the results. I want a search engine that gives me results that are well ranked to what I'm looking for.

To partially remedy the harm caused by Google’s self-preferencing, Ohio, in its second count, is entitled to declaratory relief that, as a common carrier and public utility, Google cannot self-preference on its Results Pages. Ohio is also entitled to injunctive relief that ends Google’s self-preferencing in Ohio by providing access to enhanced features on Results Pages that Google affords to its other business lines to other entities that may want to purchase such enhancements.

I mean, okay, fine. But that's an antitrust issue, not a common carriage one, and it still implicates some speech issues.

The details of the claims are no better. I honestly don't know how you run a search engine under these "requirements."

As a common carrier, Google, in its operation of Google Search, has a duty to carry information from all sources indiscriminately as compared to Google’s own information.

Wait, what? It has to carry "information from all sources indiscriminately"?! But the entire point of a search engine is to discriminate. Otherwise it's no longer a "search engine" it's just a random web page generator.

The crux of the lawsuit is then just about Google advertising its own services over those of competitors, which again is not a common carriage issue, but a competition one. It seems like a really weird and nonsensical attempt to end-run around antitrust law, basically because Ohio's attorney general wants to avoid dealing with federal law, and wants to focus on Ohio law.

I have trouble seeing how it could possibly succeed, or if it did succeed, how it would help anyone at all. And, again, it's completely bizarre to see Republicans, who have fought tooth and nail against common carriage in every other context, often referring to it (incorrectly!) as "socialism", now suddenly screaming to make clearly non-common carrier services into common carriers for the sake of some sort of culture war.

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Facebook Says Trump's 'Indefinite' Suspension Is Now Two Years Off The Platform, And Then It'll See If He'll Behave

from the i-mean,-it's-something dept

In case you've been living under a rock for all of 2021, following the January 6th mob attack at the Capitol, where then President Donald Trump went to social media and posted things that could be read as egging on his insurrectionist followers, Twitter and Facebook suspended Trump's accounts. A few weeks later, the still relatively new and untested Oversight Board that will review a few Facebook decisions agreed to review the Trump decision. In late April, it upheld the removal, but said that Facebook's decision being for an "indefinite" length violated the company's own policies, and told the company it needed to either put a time limit on it, or come up with an actual rationale for a permanent suspension.

Last week, Facebook announced its response: the suspension would now be officially for two years -- but that doesn't mean Trump will automatically get his account back (just in time to ramp up his 2024 campaign...).

We are today announcing new enforcement protocols to be applied in exceptional cases such as this, and we are confirming the time-bound penalty consistent with those protocols which we are applying to Mr. Trump’s accounts. Given the gravity of the circumstances that led to Mr. Trump’s suspension, we believe his actions constituted a severe violation of our rules which merit the highest penalty available under the new enforcement protocols. We are suspending his accounts for two years, effective from the date of the initial suspension on January 7 this year.

At the end of this period, we will look to experts to assess whether the risk to public safety has receded. We will evaluate external factors, including instances of violence, restrictions on peaceful assembly and other markers of civil unrest. If we determine that there is still a serious risk to public safety, we will extend the restriction for a set period of time and continue to re-evaluate until that risk has receded.

When the suspension is eventually lifted, there will be a strict set of rapidly escalating sanctions that will be triggered if Mr. Trump commits further violations in future, up to and including permanent removal of his pages and accounts.

As is alluded in that snippet, the company also announced an official policy that applies "heightened penalties for public figures during times of civil unrest and ongoing violence." Just the fact that this needs to be its own category of content moderation policies should tell you something about the complexity of coming up with policies that can be equally applied across all situations. Every situation is different, and no policy is going to take into account all context. Two years is the new maximum suspension under this policy:

In establishing the two year sanction for severe violations, we considered the need for it to be long enough to allow a safe period of time after the acts of incitement, to be significant enough to be a deterrent to Mr. Trump and others from committing such severe violations in future, and to be proportionate to the gravity of the violation itself.

Of course, the Oversight Board tasked Facebook with much more than just putting a timeline on Trump's suspension and Facebook buried all the details beneath the headline grabbing "two years!" announcement.

Most of those policies focus on how the company deals with high profile and influential users who are violating its policies, and how it handles whether or not certain user speech is "newsworthy" or not. In particular, politicians will no longer receive an automatic assumption that all their speech is newsworthy. Instead, that speech will be judged in the same way as anyone else's speech for newsworthiness -- or so Facebook claims. In all reality, the actual lesson in all of this is that it's not possible to judge things equally. There is always additional context that makes each situation somewhat unique.

So, honestly, the only real end result here is that politicians won't receive the assumption of newsworthiness and seem more likely to face suspensions under these new policies.

For another view on the details of how Facebook dealt with this, read Evelyn Douek's analysis, in which she suggests that Facebook is basically doing the least possible that it can, which is allowed under the somewhat weak charter it put on the Oversight Board. Many people have highlighted how weak that charter is, but this may have been the first time it's been put to the test, and shows that when Facebook really doesn't want to commit to serious change, it has ways to avoid it. I'm less convinced that's the true outcome here, and honestly given how the Oversight Board has acted so far, I suspect that this weakish response from Facebook is only likely to embolden the Oversight Board to continue to hammer the company over its failures, even if Facebook wants to avoid committing to real change in response.

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Does Taking Down Content Lead Ignorant People To Believe It's More Likely To Be True?

from the well-that's-a-tough-question dept

Harpers has a giant and fascinating article by Barrett Swanson entitled The Anxiety of Influencers that has received some attention online. Most of the reactions are the kind of typical tut tutting about the existence of TikTok/Instagram influencers whose entire (quite short) careers as "influencers" are based on their ability to get famous on social media for influencing. I do understand why people -- especially older folks (a category I now inhabit myself) -- look down upon these stories and shake their heads and wonder "what has happened to the children these days?" However, I'm more in the camp of recognizing this kind of thing happens in every generation, and I don't begrudge kids these days from trying to chase a dream, even if it feels like a silly one to someone not of that generation. There will always be young people chasing dreams, and along with it old people complaining about the kids these days. I don't think that approach is particularly useful, so I'll just say that the article is an interesting window into some of the "collab houses" that have sprung up all over (though mostly in LA), full of kids trying to become famous as influencers.

The reason this is here on Techdirt is one tiny bit of the article that touches on content moderation. At one point in the article, Swanson -- who deftly alternates between chronicling "the kids these days," envying some of their fame and attention, and recognizing just how preposterous all of this is -- is talking with Chase Zwernemann, who (perhaps somewhat incredibly) is one of the "adults" in the collab house space at a geezerly 21 years old, enabling him to be "VP of talent management" for what he and his colleagues want to suggest is an academy to produce influencers. And Chase appears to have some interesting views about the state of the world, and what he learns online.

Chase, the media liaison and self-described “influencing professor,” agrees. Later that day, he will tell me that “we’ve been kind of lucky to have these outlets across the last few months because we’ve been more exposed to what’s really going on.” For instance, just a few weeks ago, he was at home scrolling through his phone as a ritual of pre-sleep entertainment, at which point he stumbled upon “some kind of documentary” about the apparently rampant levels of Satanism in the U.S. entertainment industry. The documentary offered a detailed exegesis of demonic iconography, which supposedly many directors embed in their TV shows and movies. “It freaked me out, one hundred percent,” Chase says, “because I’ve seen those types of things—those signs and symbols—in these entertainment people’s offices, and so then to see this documentary and to start putting the pieces together, I mean, it’s nuts, man.”

At this point, I nonchalantly inquire as to whether Chase could maybe brandish his smartphone and pull up the video in question, and I’m soon made to view something called “Out of Shadows,” which has been posted on YouTube by an account called—I shit you not—Thinqing QAnon. Later, when I ask Chase whether he’s ever heard about the QAnon conspiracy, he says no, but explains that the video must be legit because “it’s gotten deleted multiple times off the internet, which is insane.” Epistemologically, this is where we are as a country: when content gets expurgated because of blatant misinformation, it is taken as a sure sign of that source’s truthfulness.

And... frankly... I'm not quite sure how to respond to that. Sure, there's an element of The Streisand Effect in there, which I understand pretty well. But, this is a slight veering off from the Streisand Effect -- assuming that every takedown via content moderation must only be done because of the "hidden truths" the content reveals.

This certainly gets to the heart of some of the cultish conspiracy theory nonsense that goes around these days. In this view, nothing can be proven false, because merely attempting to do so somehow validates it. We've seen this before, with other conspiracy theories, but it makes me wonder if the scale is different in this case.

And that then opens up the question of what, if anything, should be done in such a situation. Leaving up blatantly false disinformation that is sucking people in with nonsense and lies is obviously problematic. But so is recognizing that removing the disinformation may lead people to believe in it more strongly. How do you square those two things and come up with a plan to respond? Part of it, obviously, is that different people react to things in different ways. Clearly, young Chase's reaction to finding out this content keeps getting deleted is not the way everyone (or even most people) will respond. But it's unclear how many others would fall into that camp. Or what to do about the Chases of this world that are taking information that should be seen as evidence that they're mainlining disinformation, and interpreting it instead as evidence that the misinformation is true.

To some extent, this brings me back to a point that I've been making for years concerning questions of content moderation: we can't expect "someone else" (government, big companies, journalists, fact checkers, etc.) to solve every problem. That's just not how it works. To some extent, at some point, there needs to be some personal responsibility and some level of media literacy for the people who consume all this stuff. And clearly we've got a long way to go on that front.

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Nigeria Suspends All Of Twitter After It Removes President's Tweet

from the you-want-to-talk-censorship? dept

If you want to see what censorship is, let's take a look at Nigeria banning Twitter indefinitely in response to Twitter removing a tweet by President Muhammadu Buhari that it believed violated the site's policies. The tweet was read to be a threat to brutally kill those engaging in attacks on public infrastructure, in particular police stations in Southeast Nigeria. Buhari's tweet harkened back to the way dissenters were dealt with during the Nigerian Civil War:

"Many of those misbehaving today are too young to be aware of the destruction and loss of lives that occurred during the Nigerian Civil War. Those of us in the fields for 30 months, who went through the war, will treat them in the language they understand," Buhari wrote in the now-deleted tweet, referring to the brutal two-year Nigeria-Biafra war, which killed an estimated one to three million people, mostly from the Igbo tribe in the eastern part of the country between 1967-1970.

While the announcement that Twitter would be blocked does not reference its decision to remove that tweet, it instead says the ban is because of ""the persistent use of the platform for activities... capable of undermining Nigeria's corporate existence." I honestly don't understand what the hell that means. Basically, it seems like a twisting of the usual nonsense we see from some corners of the internet, who insist that any moderation of anyone is somehow an affront to their rights, and doubly so when it's a government official.

But, sorry, no one has a right to demand a private company host their speech.

Apparently, part of the process of blocking Twitter in the country involved requiring every social company to get a license from the country's broadcast regulator:

The government gave no details on how the ban would work in practice, or any explanation of how Twitter had undermined Nigeria's corporate existence.

Its statement, which was released on Twitter, also revealed that the national broadcasting regulator, NBC, has been told to start "the process of licensing all OTT [internet streaming services] and social media operations in Nigeria".

That certainly sounds like a prelude to an even harsher crackdown on social media in the country, which has been one of a few growing tech hubs in Africa.

Separately, though, various telcos have been told to block Twitter, but apparently people are still getting around the block, leading the Nigerian government, in a moment of true patheticness, to insist that it will prosecute anyone who gets around the ban. That doesn't seem at all desperate.

It's also interesting, given that in 2019, Twitter CEO Jack Dorsey talked about the importance of Africa, and even announced plans to live there for an extended period of time in 2020 (a plan that was put on hold because of the pandemic). Of course, a couple months ago, Twitter announced that it's African offices would be based in Ghana, and not Nigeria. So you have to wonder if that also played a role in Nigeria's sudden hostility to the company. Though, of course, the reasons Twitter mentioned for why it chose Ghana maybe should have caused the Nigerian government to pause before rushing in to silence the entire website:

As a champion for democracy, Ghana is a supporter of free speech, online freedom, and the Open Internet, of which Twitter is also an advocate. Furthermore, Ghana’s recent appointment to host The Secretariat of the African Continental Free Trade Area aligns with our overarching goal to establish a presence in the region that will support our efforts to improve and tailor our service across Africa.

Still, this is what actual censorship is. A government stepping in and blocking speech in retaliation for other speech. Not that the US is any better, of course. It was less than a year ago that President Trump tried to do the same thing with TikTok and WeChat.

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Congressional Committee Calls On GAO To Investigate Whether Patent Office Director Is Putting Thumb On The Scale Of Patent Reviews

from the very,-very-interesting dept

The chair and ranking member of the House IP subcommittee that covers intellectual property is now asking the Government Accountability Office (GAO) to investigate whether or not the Director of the Patent Office is pressuring the important Patent Trial and Appeal Board (PTAB) to make certain decisions on the validity of patents. There's a lot of important background here, but it's all kind of fascinating how two big legal issues are coalescing in this result, in which the USPTO's own legal arguments may reveal how the Director has been unfairly influencing decisions. The two key points to understand are (1) the Inter Partes Review (IPR) process, and (2) questions about the constitutionality of certain appointments -- both of which are issues that we've covered for years, that seem deep in the weeds, but turn out to be quite important.

First, we've got the IPR process. This was an effort that was put in place with the America Invents Act (AIA) back in 2012. It was a recognition (FINALLY) that the Patent Office was approving way too many bad and overly broad patents, that were then being abused to shake down companies. The fact that the USPTO was approving so many awful patents was a built in bug (or feature?) of the way the patent system works.

The process for getting a patent is not truly adversarial. You have the party seeking the patent, and the examiner. Yet examiners were often judged on how many applications they dealt with, rather than the quality of the patents they approved. So there's no party arguing for why something does not deserve a patent. In theory, the examiner might do that, but the incentive structure there is broken as well. There is something called a "final" rejection from a patent examiner, but it's not actually final, since the party seeking the patent can continue to file renewed requests/appeals forever. And with the Patent Office getting heat for having too long a backlog, sooner or later, there are strong incentives for the examiner to just approve a patent to get it off his or her docket.

Rather than fix the many inherent problems in this setup, the AIA introduced a compromise that was better than nothing. It would create this special PTAB, which anyone could use to challenge a previously granted patent. At that point (usually once someone started threatening or suing over a patent) then finally, there would be a more careful review, with an adversarial process, to examine whether or not the patent should have been granted in the first place. Patent trolls and their friends have hated the whole IPR process since it began and have tried a variety of ways to challenge it. In 2018, the biggest legal challenge to the whole IPR process was rejected by the Supreme Court, who said that of course the PTO can invalidate the patents it never should have granted.

But that hasn't stopped the efforts by trolls and friends to invalidate the IPR process. The latest attempt is in the US v. Arthrex case, in which it is argued that the "judges" on the PTAB are unconstitutional for violating the Constitution's appointments clause. That case was heard by the Supreme Court a few months ago and a ruling should be coming soon.

And that takes us to the other deep in the weeds issue we've talked about for over a decade: whether or not appointments to various quasi-legal tribunals within the executive branch violate the Constitution's appointments clause. The Appointments Clause says certain "principle officers" of the government, including judges, need to be nominated by the President and approved by the Senate. There have been questions for years about whether or not certain roles that were appointed by various department heads violated this clause. Back in 2012, for example, a court said that the Copyright Royalty Board nominations were unconstitutional (though the court then immediately worked around that issue with a sort of wink and a nudge).

So, now the question at the heart of Arthrex is whether or not the PTAB judges are constitutionally appointed, since they're appointed not by the President with the consent of the Senate, but directly by the director of the Patent Office. And, in that case, the US government (defending the constitutionality of the PTAB judges) claimed that they were not principal judges, but rather "inferior officers" who could be appointed by the PTO director. That's all very interesting, but a key argument made by the government in defending that was that the PTO Director controls the PTAB judges, including how they decide cases.

And while that may be necessary to prove that their appointments were constitutional under the Appointments clause, it rang some alarm bells because it sure as hell suggested that the PTAB might be deciding whether or not patents are valid not based on the evidence before it but based on what the PTO director wanted. And that would be a big problem.

And, so that finally gets us to the latest bit of news, in which Reps. Hank Johnson and Darrell Issa, a bipartisan sort of odd-couple who head up the IP subcommittee are asking the GAO to look into whether or not the USPTO director is actually pressuring the PTAB judges into deciding the validity of patents one way or the other:

Recently, the Supreme Court granted certiorari in United States v. Arthrex, Inc., an appeal from a Federal Circuit decision that determined that APJs were “primary officers of the United States” and, thus, unconstitutionally appointed without Senate confirmation. In that appeal, the government’s position is that APJs are instead “inferior officers” who do not require Senate confirmation because they are subject to significant oversight and control by the Director of the USPTO, who is a Senate-confirmed political appointee. The government argues that this control includes, for example, the ability of the Director to dictate the outcome of PTAB cases by controlling which APJs decide which cases (i.e., APJs who will decide each case as the Director wishes) and by providing policy directives that APJs are obligated to follow.

If the government’s arguments are accurate, PTAB cases may have been decided based on factors outside of the evidentiary record and public legal authority (e.g., statutes, regulations, court precedents) available to the parties. This possibility raises potential due process concerns and would be inconsistent with the intent of Congress in enacting the AIA.

There is then a long list of fairly specific requests for the GAO to investigate that could raise some eyebrows. Here are just a few:

The policies, written or unwritten, that exist at the USPTO to effectuate each of the above mechanisms, as well as the statutory or other legal authority that forms the basis for each of the above mechanisms.

How APJs understand the role of the Director in the decisions they reach in AIA cases, including APJs’ awareness of the above mechanisms and associated policies and the number of APJs who have been subject to one or more of them. Also, the impact that the exercise of these mechanisms and policies have had on the decision-making of APJs in AIA cases.

Whether any APJs have objected or dissented, or attempted to object or dissent, to the above mechanisms and policies, or the exercise of those mechanisms and policies in specific AIA cases. If so, the results of those objections and the processes that were made available to APJs to object or dissent. Also, how APJs understand the extent to which they may object or dissent.

How often the Director, or a designate thereof, has directly influenced or changed a decision in a specific AIA case (i.e., inter partes review, post-grant review, or covered business method review). Also, the way those decisions were influenced or changed by the Director, and the mechanisms that were used to influence or change those decisions.

Whether specific notice was provided to the parties in those cases indicating that the Director, or designate thereof, was influencing or changing a decision in the case, and the information included in any such notice. Also, whether the decisions themselves document that influence or change, and explain the reasoning or justification for it.

In other words... either the Patent Office director is unfairly controlling or strongly influencing PTAB IPR decisions or the Patent Office lied to the Supreme Court. The most charitable explanation, of course, is that the PTO director could step in and order certain decisions, but has chosen not to. But even that would be worrisome and problematic. None of this looks particularly good for the PTO.

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Following DC Circuit Ruling In Public Records Case, New Request Demands Senate Intel Committee Reveal Full CIA Torture Report

from the stay-tuned dept

Earlier today the DC Circuit affirmed the dismissal of a public records case brought by Judicial Watch against Rep. Adam Schiff. In an odd way, the ruling may have opened up a way to get the full copy of the Senate Intelligence Committee's giant locked up report on the CIA's torture program. And someone -- namely journalist Shawn Musgrave along with public records lawyer extraordinaire Kel McClanahan -- has jumped up to try. But, first, some background.

The case decided today goes back to the first House impeachment inquiry. In the impeachment inquiry report, the House Intelligence Committee, helmed by Schiff, released some phone records that it had obtained via a subpoena, showing some questionable phone calls, including ones connected to fellow Intel Committee member Devin Nunes (which, separately, Nunes later sued CNN about).

This resulted in some fairly silly posturing, and then Judicial Watch, in standard Judicial Watch fashion, insisted that Schiff abused his powers in getting that subpoena, and sought to get the details of the subpoena via a public records request, saying that they had a "common law right of access" (conceptually similar to FOIA, but rather than using the rules under the FOIA statute, claiming a common law right to get the document).

It's important to note that, normally, Congress is exempt from FOIA, so it's generally silly to make such requests. But, since this was done under the common law claim, rather than FOIA, it was seen as an end-run on the Congressional FOIA exemption. Last summer, the district court dismissed the lawsuit arguing that members of Congress have sovereign immunity and that these records are protected under the "speech and debate clause" of the Constitution, which protects against legal liability for things members of Congress say in the course of their duty.

That takes us to today's ruling. It upheld the district court ruling, again saying that the speech and debate clause protects Schiff here:

As precedent makes clear, none of Judicial Watch’s counterarguments have merit. That its lawsuit seeks “only the disclosure of public records,” rather than to establish criminal or civil liability, does not render the Speech or Debate Clause inapplicable. Appellant Br. 10. To the contrary, Judicial Watch “is no more entitled to compel . . . production of documents . . . than it is to sue congressmen.” Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 421 (D.C. Cir. 1995). To the extent Judicial Watch maintains that “legislative independence is not at issue in this case” because it seeks “public records that are not confidential in nature,” it misunderstands the immunity afforded by the Speech or Debate Clause. Appellant Br. 10–11. Notwithstanding the records’ confidentiality, “legislative independence is imperiled” when a “civil action . . . creates a distraction and forces [congressmen] to divert their time, energy, and attention from their legislative tasks to defend the litigation.” Eastland, 421 U.S. at 503; see Brown & Williamson Tobacco Corp., 62 F.3d at 415.

The majority ruling does note that it won't get into the larger question that Judicial Watch pushed, to argue that the speech and debate clause is limited in cases involving public records where there is a common-law right of access.

Today, the court has no occasion to decide whether the Speech or Debate Clause bars disclosure of public records subject to the common-law right of access in all circumstances. Nor need it consider whether and how the application of the Clause relates to the two-step inquiry to determine whether the common-law right of access applies. See Washington Legal Found. v. U.S. Sent’g Comm’n, 17 F.3d 1446, 1451 (D.C. Cir. 1994). The parties did not raise, and our precedent does not address those issues.

However, in a concurrence, Judge Karen LeCraft Henderson argues that the speech and debate clause does not necessarily bar common law right of access claims:

I agree with my colleagues that, under our precedent, the Speech or Debate Clause of the United States Constitution bars Judicial Watch’s lawsuit. But I join in the judgment only; I believe, in the right case, the application of the Speech or Debate Clause to a common law right of access claim would require careful balancing....

She then more or less begs for a test case on this question:

We have never considered the Speech or Debate Clause’s application to a common law right of access claim and the parties simply cite a single district court case where the two doctrines were raised, Pentagen Technologies International v. Committee on Appropriations of the United States House of Representatives, 20 F. Supp. 2d 41 (D.D.C. 1998), aff’d, 194 F.3d 174 (D.C. Cir. 1999) (unpublished table decision). 2 In Pentagen Technologies, the plaintiffs brought a common law right of access claim against the Committee on Appropriations of the United States House of Representatives, seeking “to review and copy a series of investigative reports” that were not released to the public. 20 F. Supp. 2d at 42. The Committee on Appropriations asserted the reports were protected from disclosure by the Speech or Debate Clause. Id. at 43. Although the district court “conclude[d] that investigative reports [were] protected from compulsory disclosure by the Speech or Debate Clause,” it reached that conclusion only after determining that the investigative reports were “not ‘public records’ as defined by WLF II” and that “[t]here thus exist[ed] no common law right of access to the reports.” Id. at 45. If the Speech or Debate Clause in fact provided absolute protection from disclosure— including protection from a common law right of access claim—the district court’s “public records” analysis would have been unnecessary.

And thus, the judge argues, if a record is a public record, then it's certainly possible that the speech and debate clause would not block a common law right of access.

So... that's interesting.

As regular Techdirt readers will remember, back in 2014 the Senate Intel Committee concluded its somewhat controversial years-long project to detail the CIA's torture program in Afghanistan. The intel community fought back strongly against the report and tried to block publication of any part of it. Eventually, after much back and forth, the Senate Intel Committee under Dianne Feinstein released a heavily redacted "executive summary" (which itself ran over 500 pages). In the waning days of the Obama administration, Feinstein and others asked President Obama to declassify the whole report in order to make sure that there was a public record of what the CIA did, and (hopefully!) to make sure that it would not be able to do so again.

That didn't happen, and the report has remained mostly unavailable to the public. In fact, once Senator Richard Burr (who has always been a huge intel community supporter and had always tried to block the report) became chair of the Senate Intel Committee, he demanded the Trump administration turn over all copies of the report so that there weren't any copies in the executive branch at all where they might somehow become subject of a FOIA request. In other words, he sought to bury the report and hide it in Congress where it would, in theory, be blocked from any kind of public records request.

Which takes us back to today's ruling. In the new request, also using the common law right of access, filed by McClanahan on behalf of Musgrave for the full, unredacted torture report, they highlight the concurrence by Judge Henderson and how the torture report is quite clearly a public record, and thus should be available under the common law right of access:

Judge Henderson explained that if a sought document is a “public record,” the government’s interest in keeping the document secret should be balanced against the public’s interest in disclosure. Judicial Watch at *11. A “public record,” she notes, is “a government document created and kept for the purpose of memorializing or recording an official action, decision, statement, or other matter of legal significance, broadly conceived.” Id., quoting WLF-II, 89 F.3d at 905.

The Torture Report is a public record under this longstanding framework and today’s decision in Judicial Watch does not counsel otherwise. Moreover, the public interest in disclosure is especially high for this report. Thus, we request that you provide the full report to us under the common law right of access to it.

This will almost certainly be denied, followed quite quickly (I imagine) by a lawsuit in which the DC Circuit might put this question to the test, and determine whether or not public records are protected by the speech and debate clause. But it sure would be fascinating if what comes out of it is public release of the locked up CIA torture report that the DOJ once tried to make sure no one would ever be able to read, and that Senator Burr sought to hide behind Congress's protective walls.

This seems especially relevant now, as a judge is permitting some info from the CIA's torture program in a terrorism case in Guantanamo.

When asked about this new public access request, McClanahan told me:

Judge Henderson's concurrence makes it clear that a congressional record that memorializes an official decision of legal significance is subject to the common law right of access if it involves a matter of public interest and doesn't fall within the scope of the Speech or Debate Clause. It's hard to envision a Congressional record from the last 20 years that better fits that definition than the final report of the wide-ranging investigation into the CIA's controversial torture program. We hope that this new decision clarifying the public's right to know such matters of great public interest will finally allow the public to see what the Intelligence Community and its apologists in Congress have tried so hard to bury, so that we can finally close the lid on that dark period of U.S. history.

I hope he's right, though I imagine it's going to take a few years and some fierce legal battles before we know for sure.

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Supreme Court Finally Limits Widely Abused Computer Hacking Law... But Just A Bit

from the it's-a-start dept

For many years we've written about the problems with the CFAA. That's the supposedly "anti-hacking" law, with both civil and criminal components, that makes it a violation to use a computer in a manner that "exceeds authorized access." Law enforcement and the courts in the past often (though not always) took an extremely broad read of "unauthorized access" in a such a manner that basically all sorts of cases that involved a computer included CFAA claims. And even if all the other claims fell away, the CFAA claims often lasted, which is why it has been dubbed "the law that sticks." Part of the underlying issue is that law enforcement and some courts wanted to read "unauthorized access" to include using a computer system you had legitimate access to, but for unauthorized purposes.

Famously, this has included cases around not abiding by terms of service that were never read, seemingly benign password sharing, scraping your own data off a web page, and perhaps most troubling of all, downloading too many files.

This week, the Supreme Court finally ruled on the CFAA and its limits in the Van Buren case, which we've covered before, including why the Supreme Court needed to push back on some courts' broad interpretation of the law.

The case involved Nathan Van Buren, a former police sergeant who abused his access to law enforcement databases to run a search that he had no legitimate law enforcement reason for. Now, there are all sorts of reasons people should condemn Van Buren for abusing his power. But the key question in the case was whether or not doing so violated the CFAA and was a form of hacking because the access was unauthorized.

Thankfully, the Supreme Court correctly rules that this particular use did not violate the CFAA. While it may have violated the police department's policies, that does not make it "exceed authorized access."

Beyond that, though, the 6 to 3 decision is... well... a bit of a mess. It could have clearly stated that merely violating a policy while having full practical access to a computer system means there's no CFAA violation. And at times, it seems to suggest that's what it's saying. But it doesn't say that entirely clearly... and, in fact, there's a weird footnote (footnote 8) that seems to undermine that premise.

For present purposes, we need not address whether this inquiry turns only on technological (or “code-based”) limitations on access, or instead also looks to limits contained in contracts or policies.

This has raised some eyebrows among many commentators, though it's all too common with the Roberts Supreme Court these days, in which the court declines to make a clear bright line rule on things it easily could, instead trying to narrowly limit the decisions. Of course, sometimes that's good, but unfortunately it often muddles things as may be the case here.

The actual reasoning behind the decision is interesting in its own way, and includes a detailed discussion on the meaning of the word "so." Specifically, what does "so" mean here:

“to access a computer with authorization and to use such access to obtain . . . information in the computer that the accesser is not entitled so to obtain.”

And thus, you get a debate over what exactly that "so" is doing in there (regulation drafters beware!):

The parties agree that Van Buren “access[ed] a computer with authorization” when he used his patrol-car computer and valid credentials to log into the law enforcement database. They also agree that Van Buren “obtain[ed] . . . information in the computer” when he acquired the license-plate record for Albo. The dispute is whether Van Buren was “entitled so to obtain” the record.

“Entitle” means “to give . . . a title, right, or claim to something.” Random House Dictionary of the English Language 649 (2d ed. 1987). See also Black’s Law Dictionary 477 (5th ed. 1979) (“to give a right or legal title to”). The parties agree that Van Buren had been given the right to acquire license-plate information—that is, he was “entitled to obtain” it—from the law enforcement computer database. But was Van Buren “entitled so to obtain” the license-plate information, as the statute requires?

Van Buren says yes. He notes that “so,” as used in this statute, serves as a term of reference that recalls “the same manner as has been stated” or “the way or manner described.” Black’s Law Dictionary, at 1246; 15 Oxford English Dictionary 887 (2d ed. 1989). The disputed phrase “entitled so to obtain” thus asks whether one has the right, in “the same manner as has been stated,” to obtain the relevant information. And the only manner of obtaining information already stated in the definitional provision is “via a computer [one] is otherwise authorized to access.” Reply Brief 3. Putting that together, Van Buren contends that the disputed phrase—“is not entitled so to obtain”—plainly refers to information one is not allowed to obtain by using a computer that he is authorized to access. On this reading, if a person has access to information stored in a computer— e.g., in “Folder Y,” from which the person could permissibly pull information—then he does not violate the CFAA by obtaining such information, regardless of whether he pulled the information for a prohibited purpose. But if the information is instead located in prohibited “Folder X,” to which the person lacks access, he violates the CFAA by obtaining such information.

The Government agrees that the statute uses “so” in the word’s term-of-reference sense, but it argues that “so” sweeps more broadly. It reads the phrase “is not entitled so to obtain” to refer to information one was not allowed to obtain in the particular manner or circumstances in which he obtained it. The manner or circumstances in which one has a right to obtain information, the Government says, are defined by any “specifically and explicitly” communicated limits on one’s right to access information. Brief for United States 19. As the Government sees it, an employee might lawfully pull information from Folder Y in the morning for a permissible purpose—say, to prepare for a business meeting—but unlawfully pull the same information from Folder Y in the afternoon for a prohibited purpose—say, to help draft a resume to submit to a competitor employer.

The Government’s interpretation has surface appeal but proves to be a sleight of hand. While highlighting that “so” refers to a “manner or circumstance,” the Government simultaneously ignores the definition’s further instruction that such manner or circumstance already will “‘ha[ve] been stated,’” “‘asserted,’” or “‘described.’” Id., at 18 (quoting Black’s Law Dictionary, at 1246; 15 Oxford English Dictionary, at 887). Under the Government’s approach, the relevant circumstance—the one rendering a person’s conduct illegal—is not identified earlier in the statute. Instead, “so” captures any circumstance-based limit appearing anywhere—in the United States Code, a state statute, a private agreement, or anywhere else. And while the Government tries to cabin its interpretation by suggesting that any such limit must be “specifically and explicitly” stated, “express,” and “inherent in the authorization itself,” the Government does not identify any textual basis for these guardrails. Brief for United States 19; Tr. of Oral Arg. 41.

Van Buren’s account of “so”—namely, that “so” references the previously stated “manner or circumstance” in the text of §1030(e)(6) itself—is more plausible than the Government’s. “So” is not a free-floating term that provides a hook for any limitation stated anywhere. It refers to a stated, identifiable proposition from the “preceding” text; indeed, “so” typically “[r]epresent[s]” a “word or phrase already employed,” thereby avoiding the need for repetition. 15 Oxford English Dictionary, at 887; see Webster’s Third New International Dictionary 2160 (1986) (so “often used as a substitute . . . to express the idea of a preceding phrase”). Myriad federal statutes illustrate this ordinary usage. We agree with Van Buren: The phrase “is not entitled so to obtain” is best read to refer to information that a person is not entitled to obtain by using a computer that he is authorized to access.

The Government’s primary counterargument is that Van Buren’s reading renders the word “so” superfluous. Recall the definition: “to access a computer with authorization and to use such access to obtain . . . information in the computer that the accesser is not entitled so to obtain.” §1030(e)(6) (emphasis added). According to the Government, “so” adds nothing to the sentence if it refers solely to the earlier stated manner of obtaining the information through use of a computer one has accessed with authorization. What matters on Van Buren’s reading, as the Government sees it, is simply that the person obtain information that he is not entitled to obtain—and that point could be made even if “so” were deleted. By contrast, the Government insists, “so” makes a valuable contribution if it incorporates all of the circumstances that might qualify a person’s right to obtain information. Because only its interpretation gives “so” work to do, the Government contends, the rule against superfluity means that its interpretation wins. See Republic of Sudan v. Harrison, 587 U. S. ___, ___ (2019) (slip op., at 10).

But the canon does not help the Government because Van Buren’s reading does not render “so” superfluous. As Van Buren points out, without “so,” the statute would allow individuals to use their right to obtain information in nondigital form as a defense to CFAA liability. Consider, for example, a person who downloads restricted personnel files he is not entitled to obtain by using his computer. Such a person could argue that he was “entitled to obtain” the information if he had the right to access personnel files through another method (e.g., by requesting hard copies of the files from human resources). With “so,” the CFAA forecloses that theory of defense. The statute is concerned with what a person does on a computer; it does not excuse hacking into an electronic personnel file if the hacker could have walked down the hall to pick up a physical copy. This clarification is significant because it underscores that one kind of entitlement to information counts: the right to access the information by using a computer. That can expand liability, as the above example shows. But it narrows liability too. Without the word “so,” the statute could be read to incorporate all kinds of limitations on one’s entitlement to information. The dissent’s take on the statute illustrates why.

It then goes into a rebuttal of the dissent, which takes on a different interpretation of "so" but feels that it can get to a reasonable outcome by focusing, instead, on "entitled." But the majority decision notes that such a reading results in problems:

The dissent’s approach to the word “entitled” fares fine in the abstract but poorly in context. The statute does not refer to “information . . . that the accesser is not entitled to obtain.” It refers to “information . . . that the accesser is not entitled so to obtain.” 18 U. S. C. §1030(e)(6) (emphasis added). The word “entitled,” then, does not stand alone, inviting the reader to consider the full scope of the accesser’s entitlement to information. The modifying phrase “so to obtain” directs the reader to consider a specific limitation on the accesser’s entitlement: his entitlement to obtain the information “in the manner previously stated.” Supra, at 7. And as already explained, the manner previously stated is using a computer one is authorized to access. Thus, while giving lipservice to Van Buren’s reading of “so,” the dissent, like the Government, declines to give “so” any limiting function.

The dissent cannot have it both ways. The consequence of accepting Van Buren’s reading of “so” is the narrowed scope of “entitled.” In fact, the dissent’s examples implicitly concede as much: They all omit the word “so,” thereby giving “entitled” its full sweep. See post, at 3–4. An approach that must rewrite the statute to work is even less persuasive than the Government’s.

The majority also points out that the government's own focus on "exceeds authorized access" is equally problematic, first in that it ignores the definition in the actual law:

The Government falls back on what it describes as the “common parlance” meaning of the phrase “exceeds authorized access.” Brief for United States 20–21. According to the Government, any ordinary speaker of the English language would think that Van Buren “exceed[ed] his authorized access” to the law enforcement database when he obtained license-plate information for personal purposes. Id., at 21. The dissent, for its part, asserts that this point “settles” the case. Post, at 9.

If the phrase “exceeds authorized access” were all we had to go on, the Government and the dissent might have a point. But both breeze by the CFAA’s explicit definition of the phrase “exceeds authorized access.”

But, more importantly, the government's approach creates a series of ridiculous interpretations:

By contrast, the Government’s reading of the “exceeds authorized access” clause creates “inconsistenc[ies] with the design and structure” of subsection (a)(2). University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 353 (2013). As discussed, the Government reads the “exceeds authorized access” clause to incorporate purposebased limits contained in contracts and workplace policies. Yet the Government does not read such limits into the threshold question whether someone uses a computer “without authorization”—even though similar purpose restrictions, like a rule against personal use, often govern one’s right to access a computer in the first place. See, e.g., Royal Truck & Trailer Sales & Serv., Inc. v. Kraft, 974 F. 3d 756, 757 (CA6 2020). Thus, the Government proposes to read the first phrase “without authorization” as a gates-up-or-down inquiry and the second phrase “exceeds authorized access” as one that depends on the circumstances. The Government does not explain why the statute would prohibit accessing computer information, but not the computer itself, for an improper purpose.

The Government’s position has another structural problem. Recall that violating §1030(a)(2), the provision under which Van Buren was charged, also gives rise to civil liability. See §1030(g). Provisions defining “damage” and “loss” specify what a plaintiff in a civil suit can recover. “‘[D]amage,’” the statute provides, means “any impairment to the integrity or availability of data, a program, a system, or information.” §1030(e)(8). The term “loss” likewise relates to costs caused by harm to computer data, programs, systems, or information services. §1030(e)(11). The statutory definitions of “damage” and “loss” thus focus on technological harms—such as the corruption of files—of the type unauthorized users cause to computer systems and data. Limiting “damage” and “loss” in this way makes sense in a scheme “aimed at preventing the typical consequences of hacking.” Royal Truck, 974 F. 3d, at 760. The term’s definitions are ill fitted, however, to remediating “misuse” of sensitive information that employees may permissibly access using their computers. Ibid. Van Buren’s situation is illustrative: His run of the license plate did not impair the “integrity or availability” of data, nor did it otherwise harm the database system itself.

Finally, and rightly, the majority opinion recognizes just how much the CFAA would criminalize under the government's interpretation:

To top it all off, the Government’s interpretation of the statute would attach criminal penalties to a breathtaking amount of commonplace computer activity.....

If the “exceeds authorized access” clause criminalizes every violation of a computer-use policy, then millions of otherwise law-abiding citizens are criminals. Take the workplace. Employers commonly state that computers and electronic devices can be used only for business purposes. So on the Government’s reading of the statute, an employee who sends a personal e-mail or reads the news using her work computer has violated the CFAA. Or consider the Internet. Many websites, services, and databases—which provide “information” from “protected computer[s],” §1030(a)(2)(C)—authorize a user’s access only upon his agreement to follow specified terms of service. If the “exceeds authorized access” clause encompasses violations of circumstance-based access restrictions on employers’ computers, it is difficult to see why it would not also encompass violations of such restrictions on website providers’ computers. And indeed, numerous amici explain why the Government’s reading of subsection (a)(2) would do just that— criminalize everything from embellishing an online-dating profile to using a pseudonym on Facebook

The majority was written by new Justice Amy Coney Barrett, and joined by Justices Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh. The dissent was written by Justice Thomas, with Chief Justice Roberts and Justice Alito.

Overall, the thrust of the decision is good, with a few oddities and that one weird footnote. But it's much better than simply accepting the government's warped interpretation of the CFAA.

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As Western Democracies Ramp Up Efforts To Censor Social Media, Russia Appears To Feel Emboldened To Do More Itself

from the this-is-how-it-works dept

With various legislative efforts in Western democracies designed to force websites to take down perfectly lawful, but "awful" speech, it appears that more authoritarian countries are feeling even more emboldened to do more of the same. Case in point: Russia.

Over the last few years Russia has been fairly aggressive in trying to control the internet, even to the point of exploring ways to cut itself off from the public internet (we assume that Russia's state sponsored trolling operations will retain their access).

Obviously, Russia threatening internet companies isn't particularly new. We've had many, many, many examples of such efforts. However, the NY Times suggests that the latest crackdown is very much focused on the biggest internet providers: Google, Facebook, and Twitter:

Russia’s internet regulator, Roskomnadzor, recently ramped up its demands for the Silicon Valley companies to remove online content that it deems illegal or restore pro-Kremlin material that had been blocked. The warnings have come at least weekly since services from Facebook, Twitter and Google were used as tools for anti-Kremlin protests in January. If the companies do not comply, the regulator has said, they face fines or access to their products may be throttled.

The latest clashes flared up this week, when Roskomnadzor told Google on Monday to block thousands of unspecified pieces of illegal content or it would slow access to the company’s services. On Tuesday, a Russian court fined Google 6 million rubles, or about $81,000, for not taking down another piece of content.

On Wednesday, the government ordered Facebook and Twitter to store all data on Russian users within the country by July 1 or face fines. In March, the authorities had made it harder for people to see and send posts on Twitter after the company did not take down content that the government considered illegal. Twitter has since removed roughly 6,000 posts to comply with the orders, according to Roskomnadzor. The regulator has threatened similar penalties against Facebook.

Again, as we noted recently, these efforts at "data localization" again first began in Western democracies, claiming that it was to "protect the privacy" of people in those countries. But now you have Russia and China using identical arguments not to protect privacy, but to enable greater surveillance and intimidation.

This is important to remember, especially as many people pushing to regulate the internet think only in the context of the US (or perhaps Western Europe) without recognizing how the same rules can and will be abused around the globe. The internet is a global system, and hopefully it will remain that way. But situations like this create larger and larger challenges to keeping that true in the future.

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Now That Amazon Has Bought MGM, Will It Turn Against The Internet?

from the hopefully-not dept

As you may have heard, Amazon recently reached a deal to buy MGM Studios for $8.5 billion, expanding its in-house content studio, which is already quite massive, given its efforts to build up its Prime Video streaming service. For a variety of reasons (notably, everything Amazon has done with Prime, as well as increasing video streaming competition from Disney, NBC Universal, Warner Media/Discovery, etc.), the deal isn't that surprising.

I do wonder, however, if this deal brings Amazon a step closer to turning its back on the open internet. I mean, we already had Netflix join the MPA and start overreacting to piracy after being a good internet steward for many years. At this point, it seems like it may only be a matter of time until Amazon goes down that path as well -- though I'd hope they think better of it.

That said, it is notable that MGM is not a member of the MPA. It somewhat famously left in 2005. So maybe that helps keep Amazon on a path of actually supporting the open internet, and remembering the rest of its business (and how much it relies on an open internet). Still, watching how much the internet and the entertainment business has converged over the past decade or so suggests that we might finally get a realignment on these issues. It would be nice if that came with Hollywood finally recognizing the open internet is not the enemy, rather than the new tech players turning their backs on the open internet... but I'm not at all confident that's how this will play out.

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Chia Cryptocurrency, Started By BitTorrent Creator Bram Cohen, Engaging In Obnoxiously Bogus Trademark Bullying

from the not-how-it's-done dept

It seems these days you can't mention anything to do with cryptocurrency without someone jumping in and insisting that cryptocurrency is a disaster for the environment. There are differing opinions on all of this, but a few years ago, BitTorrent creator Bram Cohen set out to build a more "eco friendly" cryptocurrency called Chia. The basic idea was that, rather than using a proof-of-work system -- which involves using up a ridiculous amount of computing power, it would use a proof-of-space system, looking at how much hard drive space you're allocating. After many years of development, Chiacoin finally launched a few weeks ago. And, to pretty much prove the old axiom that there's no such thing as a free lunch, while it may not be directly wasting CPU cycles, it's impacted the world differently: by destroying the global hard disc supply chain, driving prices for hard disks through the roof -- leading people to point out that even if it's not wasting electricity like Bitcoin, it may be wasting hard drives. Some may challenge the question of whether or not this is wasteful (those hard drives are doing something...) but there are multiple reports of running Chia on SSDs is wearing them out in ridiculously short periods of time -- even to the point that some SSD makers are saying that using their hard drives for Chia will void the warranty. Yikes!

All that said, this post is not so much about Chia's setup or its impact on the global supply chain for hard drives. It's about trademark bullying. You'd think that a company started by Bram Cohen -- someone all too frequently falsely accused of being responsible for music and video piracy from his BitTorrent days -- would be extra sensitive to coming across as an "IP bully" of any sort. And this is true of some of the other folks who work on Chia -- some of whom I know are Techdirt regulars.

But, for whatever reason, Chia Networks has decided to be an obnoxious trademark bully. Chris Dupres, another Techdirt regular, started a blog to cover news about Chia Networks and ChiaCoin called The Chia Plot. It's got a bunch of interesting articles about what's been happening on the Chia front.

And apparently the folks at Chia decided to threaten him with legal action.

Last week, "the head of IP for the Chia Network," Belle Borovik (who appears to be a recent law school grad), sent Chia a legal nastygram, insisting that the site violated Chia's trademark. Admittedly, the letter was at least somewhat friendlier that your typical cease and desist or threat letter. It thanked Chris for educating the public about Chia, and asked him to get a license to use the Chia name, which it offered up on a "royalty free" basis.

Chris,

I write to you on behalf of the Chia Network Inc. First and foremost, allow me to thank you for your efforts in educating and expanding the Chia community through your blog and discussions. We support open discourse and free exchange of information.

Still, it is important to Chia Network to protect its trademarks. Unauthorized use of Chia Network’s registered CHIA mark, or iits logos exposes community members to potential scammers, misleading and confusing them. Therefore, it is essential that all users of the CHIA marks, logos, or the Chia Network name obtain a royalty free permission to use the CHIA marks. Simply put, you may not continue using the CHIA mark in your domain name, or anywhere, without securing a written permission from Chia Network.

We must ask you to contact us immediately, and no later than May 28, 2021 by replying to this email, so that we may resolve this matter amicably, and you are able to continue to strengthen the community we all care about.

Except, that's not how any of this works. There is a very, very, very long line of cases, going back years, that say that websites about a trademarked brand, do not infringe on the trademark if they use the trademark in their URLs. Chris basically told them to pound sand, but did say he would clarify in his site's tagline that it was "an unofficial site." He also posted the legal threat and his response to his site.

And then, the Chia folks took away the "nicer" part of their threats, and... incredibly... became even more obnoxiously threatening and censorial. Beyond insisting that his changes were not enough and continuing to add to the false claims of trademark infringement, it also accused him of violating the GDPR by posting Belle Borovik's name in association with the letter that Belle Borovik sent to Chris. I only wish I were joking.

Dear Mr. Dupres,

It has come to our attention that your EU-registered website has recently engaged in a series of privacy violations under the General Data Protection Regulation Act (the “GDPR”) involving a Chia Network employee. To date, you have revealed our employee’s personal data, including their Name and Location, and aided in doxing behaviors of others directed toward this individual through your blog.

Despite this unbecoming behavior, you have reached out to us with the following inquiry regarding permissions to use the CHIA marks on your website:

I have added “unofficial” to the tag line of my blog to ensure that there is no confusion. Can you please confirm that this acceptable and that we are able to move on from here?

Unfortunately, adding the word “unofficial” is not enough to obviate the likelihood of confusion. Moreover, Chia Network cannot support violations of privacy laws, and cannot condone behaviors that target or endanger any member of the Chia community. This is precisely the reason for Chia Network’s vigilance in enforcing its trademark rights; the Chia Network guidelines make it easy for the community to remain connected, while maintaining a respectful and professional relationship with each other.

That said, Chia Network stands by its mission to support the Chia community, and is still willing to consider a relationship with your blog. Understandably, this can only happen if you remove all Protected Personal Information (“PPI”), including the doxing comments or references to any Chia Network employee, whether made by you or by others via your platform.

Once you have removed the doxing and PPI content from your platform, we can “move on from” there, with you obtaining a free license from Chia Network.

Sincerely,
The Chia Network Legal Team

That's uh, not how any of this works again. Chris again responded, pointing out how crazy this was, noting correctly that publishing the name of an employee who sends a threat letter is not a privacy violation (and noting that the site is registered in Canada anyway, and not the EU). Out of unnecessary courtesy, he still removed Borovik's name.

The latest is that Public Citizen Litigation Group's Paul Levy has stepped up to provide an official response from Chris to Chia Networks. And, if you're a long time reader of Techdirt, by now you should know that you basically never want to be on the receiving end of a Paul Levy letter. The letter is, in typical Levy fashion, worth reading. I was going to post just a snippet, but the whole thing is too good not to share:

Dear Ms. Borovik:

I write in response to your demands to Chris Dupres, contending that he has violated the trademark laws by using "The Chia Plot" as the name of his new web site about your company and by registering the domain name www.thechiaplot.net to be used as the internet address for the site. You contend that he needs your permission to use these names, that he needs to apply to you for a royalty-free license, and that, if he wants to resolve this situation on an amicable basis, he needs to submit his request to you immediately.

Dupres is not going to comply with your demand. Your company has no right to give (or withhold) approval for any and all uses of its unregistered trademark on web sites that discuss your company. What's more it is unreasonable for you to expect a journalist to ask for permission to use the company's name to talk about the company. Your attempt to condition his use of the name on his agreement to delete certain information from the site shows why no self-respecting journalist would give in to such a demand. See WCVB-TV v. Boston Athletic Associaton, 926 F.2d 42 (1st Cir. 1991).

Your assumption that Chia Network has a right to forbid use fits mark to denominate a web site as being about the company, or to demand the right to give or withhold such permission, is belied by longstanding precedent, set by series of cases decided by the federal courts more than ten year ago. Given the fact that your company is located in San Francisco, the decisions in Bosley Medical v. Kremer, 405 F.3d 672 (9th Cir 2005), and Nissan Motor Co v. Nissan Computer Co., 378 F.3d 1002 (9th 2004), are the most teling: Both cases squarely preclude the use of trademark law to stop Dupres's use of a web site posted at a domain name that uses your trademark as a site for non-commercial commentary about your company. Several cases in other circuits protect the right to use a domain name in the form www.trademark.com for a web site about the trademark holder against a variety of trademark claims. Utah Lighthouse Ministry v. Foundation for Apologetic Information and Research, 527 F.3d 1045 (10 Cir. 2008); Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005); TMI v. Maxwell, 368 F.3d 433, 436-438 (5th Cir. 2004); Lucas Nursery and Landscaping Inc. v. Grosse, 359 F.3d 806 (6th Cir. 2004); Taubman v. WebFeats 319 F3d 770 (6th Cir. 2003).

Trademark law aside, the First Amendment protects Dupres's right to use your company‘s name to denominate, accurately, the subject of this web site. Any effort that your company made to invoke trademark law as a reason to shut down his site, or to alter its name, would be an invocation of government power that would be subject to First Amendment scrutiny and would violate the First Amendment.

You suggest that you believe that some of your customers might be confused by the name or domain name of the web site into believing that the site is sponsored by your clients. Just how gullible do you expect your potential customers to be? I daresay that even the proverbial moron in a hurry would recognize, immediately upon visiting The Chia Plot, that it is a web site devoted to journalism about your company rather than being sponsored by your company. Dupres's site expressly states that it is not affiliated with your company, indeed, it proclaims its independence.

Moreover, Dupres has helpfully provided viewers of his site with a prominent hyperlink to your site just as, for example, did the Shops at Willow Bend site at issue in Taubman, the web site attacking Bosley Medical Group at issue in Kremer, and the site condemning Jerry Falwell's homophobia at issue in Lamparello. As a result even if Internet users mistakenly looking for your company, rather than looking for information about your company, wandered onto The Chia Plot by name-guessing, they would be quickly disabused of any notion that the site belongs to or has the approval of your company. As this very letter is propagated around the Internet, readers will gain further information dissociating Dupres's news site from your own commercial site.

Finally, I note that one of your demand emails included the preposterous contention that Dupres violated European privacy rules by identifying you as the person who sent the demand email. Although Dupres took your name off his site as a friendly gesture, you have persisted in pursuing trademark claims that have no legal bass. Accordingly, your name will likely appear in stories written about your claims.

I am giving you until June 9 to retract your demand that Dupres stop using the word "chia" in the domain name for his web site and in the title of the site. Dupres is not willing to keep operating his web site subject to the threat of a claim for trademark damages. Consequently, failing a prompt retraction, a request for waiver of service could well be the next communication you receive on this topic

Whatever you might think of Chia as a cryptocurrency, it's silly legal threats -- both about trademark and (even more ridiculously) about the GDPR -- seem to raise questions about what the hell is going on over there...

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Stanford Federalist Society Tries To 'Cancel' Law Student For Satirical Email About Josh Hawley

from the free-speech-except-when-our-feels-are-hurt dept

Update: Perhaps due to all of the negative publicity this received, Stanford agreed to drop the investigation, and allow Wallace to go on with graduating. The original story remains below.

Ah, the Federalist Society. It makes a big deal about how "cancel culture" is supposedly a "threat to liberty" but apparently that doesn't apply when someone makes fun of them. Nicholas Wallace is a 3rd year law student at Stanford Law, and a few weeks after the January 6th insurrection at the Capitol, Wallace decided to highlight that some prominent FedSoc members who were seen to have cheered on the riot at the Capitol. So he created an obviously satirical email mocking the Federalist Society and the types of events it normally holds and sent it to a Stanford Law listserv. In this case, Wallace made an invite for a fake FedSoc event, parodying standard FedSoc events, entitled: "The Originalist Case for Inciting Insurrection" and claimed that the main speakers at the event would be insurrectionist fist bumper Senator Josh Hawley and still under indictment for felony fraud Texas Attorney General, Ken Paxton.

The invite goes on to note:

Violent insurrection, also known as doing a coup, is a classical system of installing a government. Although widely believed to conflict in every way with the rule of law, violent insurrection can be an effective approach to upholding the principle of limited government. Senator Hawley will argue that the ends justify the means. Attorney General Paxton will explain that when the Supreme Court refuses to exercise its Article III authority to overturn the results of a free and fair election, calling on a violent mob to storm the Capitol represents an appropriate alternative remedy.

I mean, it may not be the funniest bit of satire ever, but it's pretty clearly satire. But the good old Stanford chapter of the Federalist Society completely flipped out about it. The organization filed an actual complaint with Stanford Law. The complaint itself speaks extremely poorly to whatever it is they're teaching future lawyers at Stanford Law these days.

On January 25, 2021, at 8:38 a.m., Nicholas Wallace sent an email to Stanford Law School’s “Law Talk” email list-serv, where he impersonated the Stanford Federalist Society, a student group, through a false event flyer and attributed false and defamatory beliefs to persons he listed on the event flyer.

Do they not teach Stanford Law students how defamation works these days? Do they not teach what satire is? Or how the 1st Amendment works? I mean, you can just hear the whiny petulance of students who feel they should never ever be mocked.

Wallace defamed the student group, its officers, Senator Josh Hawley, and Texas Attorney General Ken Paxton. Wallace, impersonating the Stanford Federalist Society, wrote on the flyer that “Riot information will be emailed the morning of the event,” insinuating that the student group was encouraging and hosting a riot. He also wrote that Attorney General Paxton advocates for “overturn[ing] the results of a free and fair election” by “calling on a violent mob to storm the Capitol.” And he wrote that Senator Hawley believes that violent insurrections are justified.

That's not how defamation works, guys. The complaint whines that many people believed the event was real, which seems to say a hell of a lot more about the kinds of events the Federalist Society normally puts on, than on anything Wallace did.

However, in the last few weeks, Stanford Law school has somehow decided to treat this obviously bad faith whining about an obvious satire as a legitimate complaint and has put Wallace's graduation in doubt, just to appease the censorial crybabies of the Stanford Federalist Society:

After the Federalist Society officer confirmed to Stanford administrators on May 22 that he wanted to proceed with his complaint, Stanford initiated an investigation into Wallace and put a hold on his diploma two weeks before his law school graduation. If the hold is not released, Wallace will not receive his degree as planned on June 12.

“The timing of all of this could not be worse,” said Wallace. “Instead of focusing on my finals and celebrating graduation with my classmates, I am navigating a confusing judicial process and trying to convince Stanford to lift the hold on my degree.”

As the link above notes, the organization FIRE, which protects free speech on campus, is calling on Stanford to drop this silly investigation, let Wallace graduate, and not to give in to this obviously bad faith attempt to punish someone for some light mockery.

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Trump Bans Himself From His Own Blog; Upset That Everyone Mocked Its Terrible Traffic

from the such-cancel-culture dept

It's been quite a month for the former President, Donald Trump, and his attempts to speak out. Almost a month ago, Trump launced a Twitter-like blog, with very limited interactive features, a silly terms of service (which said they could moderate whatever they wanted, like every other site). As we noted, lots of people mocked it for being just a standard old blog, but it did make the point that despite what other social media platforms might do, Trump was not being "censored." He had lots of ways to speak up. Of course, after a couple of weeks, reports noted that the site wasn't getting very much traffic, we highlighted that this showed what the issue really was: Trump wasn't upset about a lack of ability to speak. He was upset about the lack of a free audience.

As more and more reports came out about the dwindling traffic on the site, Trump (in standard Trump fashion) insisted that the site was actually getting huge traffic, even more than last year during the election:

“The Washington Post also incorrectly reported about my DonaldJTrump.com website viewership. We have not yet launched our own social media “platform,” but even the very basic site we have to post our statements has received 36.7 million views over the past month alone, and we’re getting more traffic to our website now than in 2020, an Election year! This number would be even greater if we were still on Twitter and Facebook, but since Big Tech has illegally banned me, tens of millions of our supporters have stopped using these platforms because they’ve become “boring” and nasty.”

Of course, even if that 36.7 million number is correct -- which it likely is -- most of that was probably on the day or two after launch when people came to check it out. All of the data suggests that the traffic was a one time deal and wasn't coming back:

“As a matter of metrics, audience, readers, every single way they measure blogs—it’s a failure,” with lower traffic than sites like Petfinder and Eat This, Not That, Melber said on The Beat with Ari Melber. Citing a report by the Washington Post, Melber noted that not one of Trump’s posts on the “From the Desk of Donald J. Trump” site has gotten more than 15,000 interactions.

And now, following the bans from Twitter and Facebook, it appears that Donald Trump has banned himself from his own blog, shutting it down permanently. Trump and his spokespeople are claiming that this was part of "broader efforts" to have the former President engaged more directly with social media, and promised that details of these new efforts would be revealed soon.

Of course, the fact that they launched the blog with such hype, and talked it up so much less than a month ago, makes all of this seem (again, as per so much that is Trump) to be them just making shit up as they go along. Meanwhile, a Trump advisor admitted to the Washington Post that the reason it was shut down was that Trump was embarrassed by how little traffic it was getting and how everyone was mocking the site:

An adviser told The Washington Post’s Josh Dawsey that the former president wanted to open a new “platform” and didn’t like that this platform was being mocked and had so few readers. The individual spoke on the condition of anonymity to talk frankly about Trump’s plans.

Obviously, Trump has every right to kick himself off his own platform, just like every other website has every right to kick him off their platforms as well. I'm assuming we won't be seeing stories about Trump's "anti-conservative bias" though, huh?

In the meantime, all of this reinforces a few important things: (1) Trump has every ability to speak out if he wants to, but (2) that doesn't guarantee him an audience, and (3) building a successful website that gets traffic is hard work, and simply assuming that you can easily replicate a successful website and its audience is rarely going to work.

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