Disproving The Nonsense About The FBI & Jan. 6th Would Be Easier If The FBI Didn't Have A History Of Entrapping People In Made Up Plots

from the you-guys-made-this-worse dept

There's a very, very dumb conspiracy theory making the rounds -- and I want to be very clear on this -- that has zero evidence to support it, that the FBI was actually behind the January 6th invasion of the Capitol. It was originally reported by a wacky extremist news organization that I won't even bother naming here, and then got a lot more attention when Fox News made it a story via Tucker Carlson's show. The underlying confusion is that a (former Trump admin official who was let go after attending a conference with white nationalists but then later appointed to a new job within the Trump White House) reporter completely misunderstood what "unindicted co-conspirator" means in various charging documents.

What it generally means are people the government has not yet charged, and who they don't want to name so they don't tip them off (or where they don't yet know who they are, or don't have enough evidence to charge, or for a variety of other reasons). What it absolutely never means, is an undercover FBI agent or informant. Those people are not ever described as unindicted co-conspirator. But the reporter somehow got it into his head that this meant they were FBI agents, and then went to town with a conspiracy theory blaming the FBI for the insurrection, claiming that it was designed to "frame the entire MAGA movement."

As noted, this is false, and there is no evidence to support this. At all. It's a fiction of imagination from someone who has no idea what he's talking about, and of course Tucker Carlson ran with it, because that's what Tucker Carlson does.

But... here's the thing: it would be a hell of a lot easier to debunk this nonsense if the FBI (especially since 9/11) didn't have a depressingly long history of... setting up fake terrorist plots in order to entrap people to get big headlines around an arrest of someone who never had any means to actually carry out the attack. We've covered examples of these kinds of FBI activities for years. We've written about examples of this over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over again.

No doubt, what the FBI does in those cases is disgusting and highly questionable. It often involves them searching out people who are either mentally troubled or really desperate, and then proposing they get involved in a completely fictional terrorist plot -- a plot that the individuals would have no possible chance of actually carrying out on their own. The undercover FBI agents (or the confidential informant working for the FBI) then proceed to do all the actual "planning" including buying any of the necessary materials and getting all the details in order. Then, after the planning has reached a certain point and the sucker is bought in on the plan, they're arrested, and the FBI claims it "stopped" a terrorist attack -- which usually gives the FBI lots of glowing press attention.

Of course, the reality is that there was no threat. There was no actual plot. There is never any ability to actually carry anything out. The weapons or bombs or whatever are all faked or never actually in existence. It's all a shadow play so the FBI can try to get some headlines and pretend they're doing something.

But that's clearly not what happened with January 6th. For one thing, the events of January 6th actually happened. The Capitol was actually invaded. Damage was actually done. If the FBI was planning it as per their usual homegrown plots, no actual attack would have happened. Also, if you look at the pattern of who the FBI has gone after with these plots... it's not really been the Trump supporting MAGA militia type.

Either way, though, people wouldn't have to be doing this big silly debunking of this kind of nonsense conspiracy theory if the FBI didn't actually have a track record of doing this kind of thing over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over again.

So, you know, perhaps they should stop doing that.

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As Predicted, Smaller Media Outlets Are Getting Screwed By Australia's Link Tax

from the exactly-as-we-warned dept

Ever since the giant news organizations, led by Rupert Murdoch's News Corp., began pushing the ridiculous idea of forcing Google and Facebook (and often just Google and Facebook) to pay a "link tax," we've been pointing out that while this might be a windfall of free money for the news giants, small news organizations (like, um, us) would likely get totally screwed over. With Australia leading the charge of silliness and passing its link tax, we're discovering that our predictions were exactly correct.

The big Australian publishers, News Corp. and NINE, are making out like bandits, while the smaller publications? Not so much.

A long-term commercial deal between Facebook and Google and Guardian Australia is expected to be completed in a matter of days, adding to a raft of agreements struck between large tech companies and major media outlets since February. While companies like Nine Entertainment Co, News Corp Australia and Seven West Media are already implementing plans off the back of the deals, there is increasing concern among smaller companies that they still have not been remunerated fairly.

Of course, this isn't really surprising. In fact, the real worry should be that the administrative costs for the internet companies to have to figure out how to compensate smaller publishers is so unworthy of the hassle, that those smaller publications will just start to be excluded en masse from Google and Facebook, once again serving the interests of the largest publishers, and not actually helping the cause of journalism at all.

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No, Facebook's Argument In Response To Muslim Advocates' Lawsuit Is Not 'Awkward'; Facebook Caving On 230 Is What's Awkward

from the so-much-silliness dept

Mother Jones has a slightly weird article saying that Facebook is making an "awkward legal argument" in a lawsuit that was filed against the company by Muslim Advocates, arguing that Facebook and its executives lied to Congress when it insisted that the company would remove hate speech. There's a lot to unpack here, though I'd note that there are two things I find awkward here -- and neither of them are Facebook's legal arguments in the case. The real awkwardness is Muslim Advocates trying to argue that Facebook failing to remove certain content violates consumer protection laws. The second awkward bit is Facebook's constant political posturing about its openness to Section 230 reform.

Let's dig into the case, though. The complaint from Muslim Advocates (and filed by a lawyer who is a long-term critic of Section 230) is fairly straightforward. It says that Facebook's execs have testified before Congress that the company removes content that violates its policies. Yet, when Muslim Advocates alerted the company to content that it believed violated Facebook's policies, the company did not always remove it. Ergo (the complaint says), it means that Facebook's execs lied to Congress... and somehow that violates DC's consumer protection laws.

There's plenty here to roll your eyes about. There is no doubt that (tragically) there is plenty of hate speech on Facebook directed at Muslims (and many other groups). It is also true that content moderation is impossible to do well at scale, and that (1) mistakes will be made and (2) lots of people will disagree with Facebook's interpretation of its own rules. And just because Facebook testifies that if it becomes aware of content that violates its policies, it will take it down, if someone else believes that content violates Facebook's policies, but Facebook doesn't take it down, that does not mean that Facebook lied to Congress. It just means that there are differing interpretations of Facebook's policies, and Facebook is the one who gets to have the final say on that.

The lawsuit, obviously, argues otherwise. I find that argument to be kinda silly. And, if it actually wins the day in court, it would be tremendously problematic for the open internet. Enabling basically anyone to sue a company for not taking down content that the person (but not the company) believes violates policies is a recipe for (1) a ton of frivolous, wasteful litgation and (2) the creation of a near automatic heckler's veto for almost any content online. That would be very, very bad.

Also, the specific claims are kinda weird. How is it a "consumer protection" violation? Well, according to the lawsuit:

The CPPA establishes a right to truthful information from merchants about the consumer goods and services that they provide to people in the District of Columbia.

And thus, because this group claims Facebook lied to Congress, that somehow means that it did not provide "truthful information... about the consumer goods and services they provide." That... is a huge stretch. There are also claims of fraudulent and negligent misrepresentations.

Facebook has responded with two separate motions to dismiss. One is a typical 12(b)(6) motion to dismiss for failing to state a legitimate claim. The second is a separate motion to dismiss under DC's anti-SLAPP law. There are lots of interesting arguments made in both of those filings (some of which overlap), but the crux of the defense is exactly as you'd expect: (1) no one at Facebook said that they'd be perfect in moderating and (2) if Facebook disagrees with some 3rd party about whether or not some content violates Facebook's policies, that's not evidence of any lie.

Billions of people use social media to express themselves, which means that content reflecting the full range of human experience finds expression on platforms like Facebook Facebook agrees with Plaintiff Muslim Advocates that anti-Muslim hate speech is vile, and devotes significant resources to keeping such abuse off its platform based on Community Standards that outline what is and is not allowed on Facebook. Enforcement of the Community Standards requires being aware of potentially violating content, ether through Facebook's own efforts or reports by third parties, and making judgments as to whether that content should be removed as violating the Community Standards. As Facebook has candidly acknowledged, these judgments are subject to disagreement and error, but Facebook remains committed to making its service a place where people feel safe to share with others and express themselves.

Managing a global community in this way has never been done before. Facebook is committed to continuing to improve its enforcement efforts and believes that means engaging Congress and other stakeholders to share and seek input on its policies and practices. As part of this ongoing dialogue, Facebook executives have testified before Congress regarding the Community Standards,

The part of the defense that caught Mothers Jones' interest is that Facebook (correctly) note that this lawsuit is clearly barred under Section 230. And that does seem pretty clear. It's not awkward at all.

...all of Plaintiff's claims are barred by Section 230 of the Communications Decency Act, 47 U.S.C. § 230 (“CDA”), because they seek to impose liability on Facebook for not removing third-party content that Plaintiff believes should be removed. Plaintiff attempts to plead around the CDA by bringing misrepresentation claims, but it is clear from the Complaint that Plaintiff is challenging Facebook's alleged failure to remove certain third-party content that Plaintiff believes violates the Community Standards. These are editorial decisions that go to the core of conduct protected by the CDA.

Mother Jones claims that this is an awkward legal argument because of Facebook's openness to reforming Section 230. But, even for those of us who don't trust Facebook's proposal for reform, there is no indication at all that if Facebook got what it wanted out of 230 reform that this case wouldn't still be barred by it. Facebook's reform proposal is basically that if it engages in best practices regarding content moderation, it still gets 230 protections. And even if Muslim Advocates disagrees, Facebook can make a pretty strong case that it engages in "best practices" regarding content moderation. Indeed, Facebook's proposal also made clear that no reform should punish a company for missing any particular pieces of content.

So, there's nothing in Facebook's legal arguments that goes against its own advocacy regarding 230 reform. So it's difficult to say why that legal argument is "awkward." It's not. It's just Mother Jones trying to spin this into a story -- which is pretty disappointing. Especially considering that Mother Jones has been so active in the good fight for stronger and better anti-SLAPP laws which (as the other filing in this case shows) would protect Facebook here, since this lawsuit seems (also) to be an attempt to punish Facebook and its execs for their speech at Congressional hearings (which is a classic kind of SLAPP situation).

If anything, the "awkward" part is why is Facebook continuing to be so willing to throw Section 230 under the bus, when cases like this (and so many others) show why it totally makes sense and does what it needs to do in making sure that websites can moderate without fear of facing liability for their many, many difficult subjective choices. Of course, we all know the real reason Facebook is doing this: because the politics of the day means that it has to "give" something here since so many people are mad at the company, and Facebook has (unfortunately, probably correctly) realized that if it undermines 230, it can do so in a manner that Facebook can survive, and its smaller competitors cannot.

The rest of the motions to dismiss are worth reading as well, as they deftly call out the silliness of the complaint, including the fact that when Facebook execs say that they remove content that violates policies, that is only after (1) they're aware of it and (2) they, themselves, determine if the content actually violated the policies, something that is inherently subjective:

Contrary to Plaintiff's assertion that Facebook executives represented in Congressional testimony that Facebook removes all content that violates the Community Standards, that testimony makes clear that enforcement of the Community Standards depends on Facebook being aware of potentially violating content and making judgments that are subject to disagreement and error.

As for the argument that this is a consumer protection issue, Facebook notes that that law is about the sale of products, which just doesn't apply here at all:

Plaintiff cannot state any claim under the CPPA because it regulates conduct arising out of consumer-merchant relationships, and Plaintiff does not, and cannot, allege any such relationship with Facebook, or that the alleged misrepresentations were made in connection with the sale of goods or services to Plaintiff or anyone else.

As noted, there's a lot more detail in the filings that is worth reading, but this should give you the gist of both sides of the argument. This lawsuit seems an unfortunately silly one by Muslim Advocates, and frankly undermines the work that the organization does. And, if Facebook wins the anti-SLAPP argument (which is certainly possible), then the organization might even end up on the hook for Facebook's (I'm sure quite expensive, given the multiple well known lawyers it has working on this case) legal bills.

There is one separate thing that is probably worth noting in this case: it does have some similarities to the somewhat infamous Barnes v. Yahoo case in the 9th Circuit, in which the court ruled that via "promissory estoppel," a plaintiff could get around Section 230. In that case, the plaintiff spoke to someone at Yahoo who promised them they would remove some content, but then did not. In that case, the court said that once an employee promised the plaintiff that the content would be removed, the company loses the 230 protections.

However, this case strikes me as notably different in multiple ways (and, of course, is not bound by an already problematic 9th Circuit ruling, since it's in DC superior court). In Barnes, there were not only specific pieces of content that the plaintiff alerted Yahoo to, but then the employee told the plaintiff that the company would "take care of" that content. So that was the promise. Here, the plaintiffs are trying to take broad statements regarding Facebook's content moderation practices to Congress and trying to say that this constituted some sort of binding promise to never be wrong or never disagree with Muslim Advocates' own subjective opinion. And that's just silly.

So, in the end, we have an awkward basic legal argument from Muslim Advocates, and an awkward bit of political posturing by Facebook with its publicity campaign to "reform" Section 230. What is not awkward at all is Facebook's legal response to this silly lawsuit.

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Devin Nunes' Family's Bizarrely Stupid Defamation Lawsuit Goes Off The Rails

from the wow dept

As you may recall, Rep. Devin Nunes has been involved in a bunch of totally frivolous SLAPP suits that seem designed to try to intimidate journalists from writing stories criticizing Devin Nunes. A key one that seems to have gotten deeply under Nunes' skin is an Esquire piece from a few years ago entitled Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret written by reporter Ryan Lizza. In the fall of 2019 he sued over that article, and a few months later his family sued over it as well.

To say it hasn't gone well for Nunes would be an understatement.

As a reminder, the article claims that the "politically explosive secret" is just the fact that, despite Nunes repeatedly pitching himself as a California farmer, his family packed up the farm and moved it to Iowa a while back. Much of the article is about how they appear to have worked over time to try to hide that:

So here’s the secret: The Nunes family dairy of political lore—the one where his brother and parents work—isn’t in California. It’s in Iowa. Devin; his brother, Anthony III; and his parents, Anthony Jr. and Toni Dian, sold their California farmland in 2006. Anthony Jr. and Toni Dian, who has also been the treasurer of every one of Devin’s campaigns since 2001, used their cash from the sale to buy a dairy eighteen hundred miles away in Sibley, a small town in northwest Iowa where they—as well as Anthony III, Devin’s only sibling, and his wife, Lori—have lived since 2007. Devin’s uncle Gerald still owns a dairy back in Tulare, which is presumably where The Wall Street Journal’s reporter talked to Devin, and Devin is an investor in a Napa Valley winery, Alpha Omega, but his immediate family’s farm—as well as his family—is long gone.

The article also discusses a bunch of other oddities about the Nunes' farm in Iowa, and while it never comes out and directly claims that the farm hires undocumented workers, it does note that most other farms in the area do. This point has become somewhat important in the case.

Devin Nunes' own part in the case is effectively over as the judge dismissed it last summer, pointing out absolutely nothing Nunes claimed was defamatory actually was defamatory (Nunes is appealing, because of course he is, but it's hard to see much of a chance of the case being reinstated). And while the judge had made it clear that the lawsuit by Nunes' family was on shaky ground, the Nunes' family and their lawyer, the infamous Steven Biss, decided to keep the case going.

The only claim that has survived in the case is the one where Nunes' family says it is defamatory due to the implication that the farm has employed undocumented workers. So, as would be expected, one of the things that Esquire's publisher, Hearst, wished to do was to depose the workers on the farm to establish their documentation. Last month, it became clear that something nutty was going on after Hearst filed quite a document with the court, about its efforts to depose the workers from NuStar farms. Much of the filing is redacted, but you can still get a sense of the frustration:

This Motion comes in the wake of an unusual and troubling series of events in this case, which were previewed for the Court during last week’s telephone conferences with Judge Roberts....

Reading through the details (and especially the declaration of one of Esquire's lawyers) strongly suggests (though the redactions make it a little tricky to parse out) that Biss has played games to try to keep NuStar's employees from giving depositions. This includes questions about whether or not Biss would accept service on behalf of those employees and also whether or not he would represent those employees.

Reading those links suggests the case was already turning into something of a clusterfuck, and apparently on Thursday it all blew up as the magistrate judge on the case benchslapped Biss and told him to stop playing games (first reported by the Fresno Bee, whose parent company was also sued by Nunes, and which has done some great reporting on these cases).

The order from the magistrate judge details what happened when Hearst's lawyers were finally able to depose the NuStar employees and... um... wow.

Defendants noticed the depositions of six of Plaintiffs’ current employees and had them served with subpoenas duces tecum that required them to bring identification to their depositions. Plaintiffs’ counsel, Steven S. Biss, accepted service of the subpoenas on behalf of the employees, but Plaintiffs arranged for separate counsel, Justin Allen, to represent the deponents. F.S.D. was the first such witness to be deposed on May 12, 2021.

While Defendants’ counsel was questioning F.S.D. about his purported signature on various documents, Mr. Allen stated, “I’ve advised my client to invoke his Fifth Amendment right regarding questions about this document. [F.S.D.] --- ” (Doc. 103-8 at 20 (Dep. pp. 71-72).) Mr. Biss then interrupted stating, “Hold on. Hold on. Can we go off the record for just a minute? I’d like to talk to Justin before we do this.” (Id. (Dep. p. 72).) In fact, the deposition was delayed for much more than just a minute. More than two hours later, the deposition resumed. When Defendants’ counsel attempted to make record, Mr. Biss interrupted him several times insisting that Mr. Allen would make a statement and the deposition would be rescheduled. Once Mr. Biss got his way, Mr. Allen stated,

I am not going to allow [F.S.D.] to answer that question because when we left it I advised him to invoke his Fifth Amendment right. We took a break. We went off the record, and we’ve had several conversations with lots of people and I’ve talked to [F.S.D.], and as of now I am no longer representing him. I am not his lawyer.

(Id. at 21 (Dep. pp. 74-75).) The depositions were then halted. At the hearing, Mr. Biss stated that a new lawyer had been retained to represent the employee witnesses at their depositions, but he could only identify the new attorney by her first name, Jennifer. Mr. Biss was ordered to provide her name to opposing counsel and the Court. To date, I have not received that information.

There are so many "wow" elements in there, and also plenty of things on the "these are things you should not do during a deposition" list. Just the fact that a judge would recount that in an order is kind of incredible, and suggests that the court is already both aware of and sick of Biss's antics.

The judge orders the employees from NuStar to actually comply with the subpoenas, and seems to suggest that Biss failed to inform the employees of their obligations under the subpoena until the morning of the deposition (another wow moment):

Although the subpoenas had been timely served and no objection was raised, apparently F.S.D. first learned of the deposition on the morning it was scheduled, he had not been shown the subpoena, and he did not appear with the requested documents.

So the court doesn't just order that the employees comply with the request to produce documents, but tells Biss to make sure that the employees are properly informed of them:

To avoid a repetition of this problem at upcoming depositions, Mr. Biss and any attorney retained for the employees will inform the employees of their obligation to search for the requested documents and bring the documents to the deposition, if they still possess them. Mr. Biss and any attorney retained for the employees will also advise the employees that the Court has ordered this production and employees may be asked about their efforts to comply at the deposition.

And then the magistrate judge addresses Biss's behavior. And you can tell he's not happy.

Defendants complain about Mr. Biss’s behavior during the deposition of F.S.D. Particularly, Defendants assert that Mr. Biss asserted argumentative objections that were disruptive and intended to intimidate or coach the witness. Mr. Biss asserts that his objections were proper and “intended to call out the Defendants’ overt harassment of the NuStar employee.” (Doc. 107 at 10.) Mr. Biss’s further explanation on this issue is puzzling and troubling:

No effort was made to “signal to the witness how to answer questions” or to “coach[] the witness to testify in a certain way.” Counsel for the Defendants got answers to all his questions, including those about [F.S.D.’s] traffic tickets. The deponent was never instructed not to answer. Indeed, he wanted to answer all questions. Plaintiff’s counsel sought a side bar with counsel for the witness to determine whether the witness wanted to take the Fifth Amendment. The witness did not, which is why the witness terminated the lawyer with absolutely no prompting by Plaintiffs’ counsel.

(Id. (brackets in original).) During the deposition, Defendants’ counsel was asking questions about documents such as a bond F.S.D. had posted and a traffic ticket he had received that bore his signature. Mr. Biss made a lengthy speaking objection claiming this was harassment. (Doc. 103-8 at 19 (Dep. pp. 66-67).) Here, where the identity and immigration status of the employees is a central issue, it is not harassing or irrelevant to ask questions about such documents. In the context of this case, it is not conducive to obtaining truthful answers from an employee such as F.S.D. to have his employer’s lawyer making lengthy, animated objections to those questions.

The most puzzling and troubling aspect of Mr. Biss’s explanation, however, is the representation that he “sought a sidebar with counsel for the witness to determine whether the witness wanted to take the Fifth Amendment.” (Doc. 107 at 10.) This two-hour “sidebar” occurred immediately after Mr. Allen stated, “I’ve advised my client to invoke his Fifth Amendment right regarding questions about this document.” (Doc. 103-8 at 20 (Dep. pp. 71-72).) Normally, one would expect the lawyer for a deponent to be in the best position to ascertain whether the deponent desires to assert a privilege. There is no record of the sidebar, only Mr. Biss’s protestations that the employees are not being pressured regarding their rights under the Fifth Amendment. Mr. Biss makes bald assurances that the employees want to answer all questions and not assert their Fifth Amendment rights. Nevertheless, Mr. Biss’s behavior—coupled with the facts that (a) the privilege was raised, (b) the privilege was perhaps withdrawn after a lengthy sidebar, and (c) Mr. Allen was fired—gives me little confidence that F.S.D. could make a knowing waiver of his Fifth Amendment rights under these circumstances.

The judge notes that he can appoint a lawyer for the employees, but since Biss insists that "Jennifer" has been retained, for now he will resist the temptation to appoint them counsel. However, "if concerns arise about the exercise of independent judgment by the attorney replacing Mr. Allen, I may reconsider the necessity of appointing counsel."

It also concludes with this oddity:

Plaintiffs raised a related concern. Plaintiffs explained that they had not identified new counsel previously out of concern Defendants’ attorneys will contact the new lawyer to intimidate him or her or threaten ethics violations. (Doc. 107 at 8 n.5.) At the hearing, I expressed my belief that, if I were in the new lawyer’s shoes, I would welcome communications from counsel familiar with the case and the underlying documents as I prepared to independently evaluate my clients’ potential legal jeopardy.

So, once again, Biss's actions don't seem to be doing him any favors, yet haven't reached the point at which he gets sanctioned for his behavior either. Sometimes it truly is stunning how much leeway a court will give certain lawyers. Still, none of this is good for the Nunes family and their case.

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Letting Newspapers Band Together To Demand Payments From Internet Companies Is Bad For The Internet And Bad For Journalism

from the bad-ideas dept

In the wake of Australia getting its ridiculous, anti-open internet link tax passed into law, the push to create similar such laws everywhere else has gone into overdrive. In the US, the main driver of this effort (which has been pushed by legacy newspaper giants) has been an antitrust exemption that would allow the newspapers to collude, in order to put up (what they think is) a joint effort to demand that Google and Facebook pay them for links. The supposed "antitrust" wing of the Democratic party, David Cicilline in the House and Amy Klobuchar in the Senate, have decided that this is a good idea and introduced the Journalism Competition and Preservation Act (JCPA) (here's the House version). Leaving aside the oddity of thinking that the best way to deal with what you believe are dominant firms is to allow other firms to collude and avoid antitrust laws, the entire proposal is silly, and potentially destructive to the open internet.

Public Knowledge has put together a letter to Congress explaining why (our think tank, the Copia Institute, has signed onto the letter). In a separate blog post, Public Knowledge notes that while it as an organization has been largely supportive of Cicilline and Klobuchar's antitrust efforts around the tech companies (something we at Techdirt are somewhat less convinced by), this bill is a complete disaster.

The key part is exactly what we highlighted was wrong with the Australian law. The idea that this is a competition issue and that newspapers need to be able to band together to have enough clout to negotiate a price for linking to their stories has a totally false underlying assumption, that there's some underlying right to be paid for links. The whole nature of the open internet is that you don't need permission or a license to link to someone else. But this bill seems to think that's not true. And that's a problem.

The JCPA would create an antitrust law exception to allow certain publishers the ability to jointly negotiate business terms with major online platforms. Notably, it does not otherwise alter substantive law. However, no individual news publication currently has any legal right (via copyright, or any other statute) to prohibit third parties from linking to their content. Nor does banding together to collectively negotiate give such a right. In other words, a cartel of news sites is exactly as powerless to prevent Facebook or Google from linking to its members’ content as a small site would be negotiating on its own.

And that could lead some -- perhaps even courts -- to think that this bill actually alters copyright law to mean that you do need a license to link, and that would be horrific for the open internet.

This central disconnect means that the structure of the bill does not achieve its stated legislative aims. As such, we are concerned that this bill could be interpreted by courts to implicitly change the scope of copyright, expanding the exclusive rights that news publications enjoy in their material beyond what any copyright owner has ever enjoyed. To the extent that this creates a new substantive right to demand that material not be linked to, this is unwise; to the extent that it interferes with fair use rights, particularly of the rights of users of platforms, it is unconstitutional and violative of our international obligations.

The ability of one website to connect (“link”) to other websites, without needing to negotiate to do so, is a foundational component of modern internet infrastructure. Linking is not, and has never been, an act within the scope of copyright. It is not within the statutory or common-law ambit of copyright law, as merely linking to a piece of external content is not a reproduction, display, performance, or distribution of that content. As such rightsholders do not--and should not--have the ability under copyright law to prevent third parties from linking to their publicly available content. (Notably, the vast majority of rightsholders do not want such a right, and those that do already have technical methods which allow them to do so.)

Once again, what we're seeing with Klobuchar and Cicilline is that they're so deeply infatuated with the idea that "big tech is bad" that they fail to bother to look at the details of their own proposals and what they would mean for the open internet.

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Australian Official Admits That Of Course Murdoch Came Up With Link Tax, But Insists The Bill Is Not A Favor To News Corp.

from the did-he-just-say-that-out-loud? dept

Earlier this year, we wrote a lot about the ridiculous anti-open internet Australian link tax that is now being pushed elsewhere around the globe. Anyone paying attention to the details knew that it was extreme crony capitalism at work, with the government forcing one set of massive companies (namely, Facebook and Google) to pay another set of massive companies, led by Rupert Murdoch's News Corp and Nine. For all the talk of how big tech companies are "monopolies," if you look at Australia's news companies, it's considered among the most concentrated in the world, and has been quite profitable for the likes of Murodch.

And while defenders of the bill insist (incorrectly) that the bill is not a link tax, but is merely a "competition bill" to help those few giant newspaper companies "better negotiate" with the giant internet companies, that's bullshit for two reasons. First, it's a "negotiation" to pay for links, and no one should ever have to pay to link to some other site. That's just fundamentally against the concept of an open internet. Second, it's no real negotiation because if Facebook and Google fail to agree to a deal that satisfies the Aussie media bosses, the government can step in and force an agreement on them.

Lots of people -- including those in Australia -- noted that this all seemed like a scheme to make Rupert Murdoch richer. And now the Australian competition official, Rod Sims, who "oversaw drafting of the law" has flat out admitted that the whole thing was Murdoch's idea in the first place, though he insists it's "extremely strange" that anyone thinks it's a favor to Murdoch.

Australian Competition and Consumer Commission (ACCC) chair Rod Sims, who oversaw drafting of the law, acknowledged the negotiating system was proposed by the Rupert Murdoch-controlled publisher but said all major media operators in the country supported it.

I mean, yeah, of course they supported it. Because it's the government forcing other companies to give them free money in response to their own failures to innovate. Why wouldn't they support it?

It is true that Google and Facebook are bigger than News Corp., which is the point that Sims really really wants to focus on. But that doesn't even touch on whether or not it's appropriate to force one set of companies to pay for something that should be free (linking), to another set of companies that are still making a shit ton of money on their own.

"News Corp is 1% the size of Google. News Corp is one of four main media companies (in Australia). It's very likely not the one with the biggest reach. I just think this is a line put out by Google," Sims added.

"There were many people giving us ideas. News Corp was but one. This whole notion that this is about News Corp is extremely strange."

You literally just admitted that the idea came from News Corp! It wasn't "a line put out by Google." It was you, who just admitted what was obvious to anyone who's been paying attention to Murdoch for years. After all, Murdoch has been publishing op-eds (in his own company's publications, of course), demanding Facebook and Google pay him for years. It's not like he made it a secret.

Can you make an argument that Google and Facebook are too powerful? Sure, absolutely. But, can you then make the argument that these companies which found a way to build internet services billions of people like... should be forced to pay for Murdoch's brand of propaganda, despite there being no fundamental reason that he deserves any of that money? Not unless you want people to think you're in Murdoch's pocket.

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FBI's Recovery Of Colonial Pipeline Bitcoin Ransom Highlights How The 'Ban Crypto To Stop Ransomware' Cries Were Wrong Again

from the that's-not-how-it-works dept

Last month we highlighted what seemed like a fairly silly Wall Street Journal op-ed arguing that banning cryptocurrency was the best way to stop ransomware, in response (mainly) to the well publicized ransomware attack on Colonial Pipeline, which resulted in the company shutting down the flow of oil while it sorted things out. As we pointed out, not only was the idea of banning cryptocurrency unworkable, it was unlikely to do much to stop ransomware. Unfortunately, it appears that a number of other cryptocurrency haters jumped on this moment to push the idea even further, claiming that "society has a Bitcoin problem."

Of course, part of the key narrative in all of these pieces is that cryptocurrency and Bitcoin in particular, somehow make it easier for criminals to "get away" with these kinds of ransom demands, highlighting that it is somewhat easier to move around large values of Bitcoin than cash. However, as we noted in our original piece, the idea that cryptocurrency allows criminals to "get away" seemed extremely overblown, as we've seen plenty of cases where criminals using cryptocurrency were caught. And, as if to put an exclamation point on all of this, soon after the huge moral panic, the FBI announced that it had recovered over half of the money Colonial Pipeline had paid.

And, as the FBI special agent's affidavit showed, this was done in part by tracking how the money flowed across the public ledger. The NY Times ran an article noting that the FBI's recovery of the money here "upends the idea that Bitcoin is untraceable." A bunch of long time Bitcoin/cryptocurrency followers scoffed at the NY Times article, because they've long known that Bitcoin's public ledger has always made it so that transactions are traceable. But it's actually important for people not deeply in the Bitcoin space to understand this as well. And the problem with so many of the "ransomware is really a cryptocurrency problem" articles, was that they implied otherwise -- that cryptocurrency was somehow totally and completely untraceable.

As the NY Times article explains, what's important here is that it demonstrates that for all the hand wringing about cryptocurrencies and ransomware, the reality is that law enforcement is evolving with the times, and using the same kind of law enforcement detective work it's supposed to use to solve crimes.

Yet for the growing community of cryptocurrency enthusiasts and investors, the fact that federal investigators had tracked the ransom as it moved through at least 23 different electronic accounts belonging to DarkSide, the hacking collective, before accessing one account showed that law enforcement was growing along with the industry.

That’s because the same properties that make cryptocurrencies attractive to cybercriminals — the ability to transfer money instantaneously without a bank’s permission — can be leveraged by law enforcement to track and seize criminals’ funds at the speed of the internet.

That's an important point and one that often gets lost in the FUD surrounding new technologies (such as encryption) that might make law enforcement's job slightly more complex in the short run. But, at the same time, law enforcement needs to learn to adapt, not by undermining these technologies, but understanding how they work, and understanding how to do the actual legwork to trace those abusing the technology for criminal purposes.

So rather than jumping to the conclusion that we need to ban this or that technology because it makes it slightly more challenging for law enforcement, this is actually an example showing how if law enforcement does their job properly, the technology is not the problem.

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If David Cicilline Gets His Way; It Would Destroy Content Moderation

from the consequences dept

Last week we looked at the various antitrust bills written by House Democrats (though with Republicans co-sponsors conjured up at the last minute with an assist from Rupert Murdoch), and noted that none of them seemed likely to really solve the problems of internet consolidation. The crown jewel bill comes from Rep. David Cicilline, who is spearheading this entire antitrust effort. We discussed some of the problems with his bill last week, but a closer reading suggests that it would also create a disaster for content moderation. The bill reads:

It shall be unlawful for a person operating a covered platform, in or affecting commerce, to engage in any conduct in connection with the operation of the covered platform that—

(1) advantages the covered platform operator’s own products, services, or lines of business over those of another business user;
(2) excludes or disadvantages the products, services, or lines of business of another business user relative to the covered platform operator’s own products, services, or lines of business; or
(3) discriminates among similarly situated business users.

This language is clearly designed to target things like Google offering its own local reviews and listings rather than Yelp's or TripAdvisor's. And there are reasonable arguments to be made that a company like Google maybe should just use its own search ranking algorithm to see whether or not users prefer those 3rd party listings to its own.

But... the overly broad language in the Cicilline bill seems likely to have massive unintended consequences regarding content moderation in ways I don't think Cicilline would support. Indeed, for unclear reasons, an early draft of Cicilline's bill had more limiting language on part (3) above, such that it only covered "material" discrimination over services involving "the sale or provision of products or services." But the final language is much more broad and says it's an antitrust violation if there's "discrimination among similarly situated business users."

But here's the thing that people who have no experience with content moderation never seem to realize: everyone who is on the receiving end of a moderation decision they disagree with, insists that they are being treated unfairly compared to some other "similarly situated" user, even if the reality (and context) suggest otherwise. But by saying that it's an antitrust violation to discriminate between "similarly situated" business users, that's going to make those claims become particularly legally fraught.

That's going to open up a massive loophole regarding content moderation. Let's take a few examples, starting with Parler. As you may recall, Parler was kicked off AWS for hosting, and also kicked out of both the Google Play Store and the Apple iOS App Store (though it has since returned to the App Store).

Parler sued Amazon, claiming it was an antitrust violation, which got laughed out of court. But, if Cicilline's bill becomes law, suddenly this becomes an open question again. Parler could easily argue that the removal was discrimination under the definition of the bill. After all, a key point in Parler's lawsuit was that Amazon treated Twitter differently than it treated Parler.

And, under the definition in (3), Parler could say that Amazon discriminated against it as compared to the "similarly situation business user" Twitter.

This might not impact Parler's lawsuit specifically, since enforcement of Cicilline's bill falls on government entities rather than private parties, but it opens it up to "any Attorney General of a state," and I can pretty much guarantee that there are a bunch of state AGs who would happily step in and claim that these moderation efforts against Parler violated the law.

But it goes even further than that. Suddenly Twitter banning Project Veritas or Facebook shutting down events created by Infowars would raise the same questions. And all they'd need to do is find a friendly state AG to take them on.

In short, this antitrust bill would open up a huge loophole for propaganda or garbage fire websites that were banned (or even just diminished) to claim it was an antitrust violation, because they were treated differently than "similarly situated business users."

Just think of how the PragerU lawsuits against YouTube would appear very different under this bill as well.

It seems odd that a Democrat like David Cicilline would want to put in place an antitrust bill that would make it open season for Republican propaganda outfits, and their supportive AGs, to force social media companies to not just host, but to promote, their content (not doing so might be seen as "discrimination" compared to similarly situated websites), but it seems like that's what he's done. Perhaps that's the compromise that it took to get a Republican co-sponsor on board, but it's hard to see how this is a worthwhile trade-off.

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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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