Former US Ambassador Sues Apple Because Telegram Users Are Making Him Feel Scared [Update]

from the yeah-i-don't-know-either dept

Here's an interesting lawsuit, brought to you by some familiar names. And by "interesting," I mean "exceedingly stupid."

The lawsuit [PDF] was filed by "Ambassador Marc Ginsberg." Ginsberg last served as an ambassador in 1998. And yet, that title is being used to name him as the plaintiff. The defendant is Apple. In the mix (but not a defendant) is Telegram, a popular and often controversial messaging app that has served as a mouthpiece for alt-right personalities and others who have been banned from more mainstream social media services.

Ginsberg also runs the Coalition for A Safer Web (the co-plaintiff in this lawsuit), a non-profit whose mission is "inter alia, to promote new public/private partnerships to facilitate the expeditious removal of extremist and terrorist incitement and instruction content from social media platforms." The executive team at CSW includes Dr. Demetrick Pennie, a former Dallas Police sergeant and, according to the site, "leading CDA 230 expert."

Here's some of Dr. Pennie's 230 expertise at work:

In January, Dallas Police Sergeant Demetrick Pennie sued [PDF] Twitter, Google, and Facebook, claiming they were directly responsible for "radicalizing" Micah Johnson, who shot and killed five police officers in Dallas, Texas. According to Pennie, the social media companies actively allowed and encouraged terrorist use of their platforms to spread their message and attract participants.

Pennie's lawsuit was tossed because the court could find nothing linking terrorist organization Hamas to the Dallas shooter, despite Pennie's baseless proclamations otherwise. And his lawsuit was so off-base -- suing social media companies over the shooting of cops by a Dallas resident -- the court couldn't even be bothered to address the Section 230 ramifications. Pennie was represented in this case by Keith Altman of Excolo Law (often in conjunction with 1-800-LAW-FIRM), who has filed dozens of similarly stupid lawsuits trying to hold social media companies directly responsible for the violent acts of terrorists.

"Ambassador" Marc Ginsberg is suing Apple because of content Telegram users post. I'm not even kidding. And he's being represented by ex-Excolo litigator Keith Altman, who has moved on to Lento Law Group. But he's apparently still doing the same kind of litigation: suing the wrong parties over things other people are doing or have done.

The lawsuit features two plaintiffs (Ginsberg, Coalition for a Safer Web) because CSW employs Ginsberg and provides him with an iPhone. Apple is the defendant because it has refused to remove Telegram from its app store. The lawsuit is full of relevant facts and evidence, like this:

Currently, Defendant Apple sells the iPad Mini 5 for $399+, the 2020 iPad is $329+, the 2020 iPad Air is $599+, the 12.9-inch iPad Pro is $999+, the 11- inch iPad Pro is $799+, the 12.9-inch iPad Pro is $799, and the 11-inch iPad Pro is $649+.

And this:

Defendant Apple sells the Series 3 Apple Watch for a starting price of $199, the Apple Watch SE S5 for a starting price of $279, and an Apple Watch Series 6 for a starting price of $399.

Ginsberg claims the Telegram app violates Apple's developer guidelines and California's hate speech law and should be removed from the app store. Because Apple hasn't removed the app, it has been downloaded and used by people who engage in anti-Semitic speech. (Ginsberg is Jewish.) Because Telegram refuses to remove this content, it somehow leaks into Ginsberg's life through the app store -- even if Ginsberg has never downloaded the app or engaged with its users.

Defendant breached their duty by continuing to host Telegram on the App Store despite Defendant’s knowledge that Telegram was being used to incite violence including violence against African Americans and Jews.

Ambassador Ginsberg is a Jewish person whose professional work requires he maintain a presence in the public eye.

As a result of this Anti-Semitic campaign that was coordinated on the Telegram app, Ambassador Ginsberg is forced to live in apprehension of religiously motivated violence being perpetrated against him.

Ambassador Ginsberg’s fear of religious violence has caused him substantial emotional harm including depression and anxiety.

All of this may be true. But suing Apple over distressing content carried on Telegram isn't going to work. Apple doesn't have a duty to remove anything from its app store that may cause distress to anyone. If anyone's responsible for the racist content being spread on Telegram, it's the people posting it. That targeted harassment is possibly being aided by a chat app is concerning, but Apple isn't culpable for the actions of users of an app it allows customers to download and use.

And conclusory arguments like this aren't going to convince a judge otherwise.

If was foreseeable to Apple that by allowing Telegram to continue to be available on the App Store that Apple’s conduct could lead to fear of violence by individuals, such as Ambassador Ginsberg.

By failing to remove Telegram from the Apple App Store, Defendant has proximately caused Ambassador Ginsberg’s emotional distress.

Plaintiff Ambassador Ginsberg has suffered injuries in an amount that exceeds $75,000.

The arguments get even worse. Ginsberg claims Apple deceived him into purchasing an iPhone by promising to enforce its app store restrictions -- restrictions Ginsberg claims are violated by Telegram remaining available. But Telegram appears to comply with Apple's rules for apps relying on third-party content because Telegram allows users to block accounts/content, report violations/abusive accounts, and provides contact info for users seeking to have questions and concerns addressed.

Somehow, Telegram's continued presence in the app store has rendered Ginsberg's phone nearly useless.

Defendant’s failure to enforce their own guidelines against Telegram has caused Ambassador Ginsberg and CSW to suffer economic loss by being deprived of a key benefit of the purchase and use of the Apple iPhone XR.

I don't see how this makes it past a motion to dismiss. Ginsberg has a problem with Telegram users' content. So he's suing… Apple. Even assuming Apple is wrong to allow Telegram in its app store, Telegram is multi-platform. It has an Android app and a desktop version. The racist conspiracies Ginsberg believes are targeting him and causing him verifiable, recoupable harm could have originated on other platforms. Suing Apple into submission isn't going to stop the behavior that's bothering Ginsberg. It's only going to enrich Ginsberg.

And that appears to be the whole point of this lawsuit: to hit the biggest target with the broadest allegations and hope for a quick settlement. There's nothing in here that carries any legal weight or explains why Apple should be held responsible for the racist content that has (allegedly) caused Ginsberg distress.

UPDATE: Ginsberg has now sued Google for the same thing, claiming Google isn't protecting him from Telegram users' content by allowing it to remain in the Google Play store. That covers another outlet for Telegram, but once again, suing Google isn't going to stop Telegram users from posting anti-Semitic content or otherwise making Ginsberg feel unsafe.

Filed Under: 1st amendment, demetrick pennie, hate speech, intermediary liability, keith altman, liability, marc ginsberg, section 230
Companies: a safer web, apple, excolo law, google, lento law group, telegram

Google Threatens To Pull Out Of Australia Entirely; Australians Demand That It Both Stay And Pay News Orgs For Giving Them Traffic

from the how-does-this-make-any-sense dept

For the last year, we've been highlighting how Australia's rush to create a Google News tax is so stupid. It follows similar efforts in Europe and a few other places, where newspapers that spent years dismissing the internet and doing little to adapt, are now whining that Google is... sending them free traffic and not paying them for it.

It's truly bizarre. Google sends lots of traffic to news organizations. Tons of news organizations employ search engine optimization experts who work hard to get even more traffic from Google. But... around the globe, many of them are demanding that Google also pay them for sending them traffic. Back in 2014, Google shut down its Google News offering in Spain when that country passed a similar law. Over the past few months, Google has tried to explain to Australian officials just how incredibly stupid this plan is, but Australian officials (and the newspaper lobbyists down under) don't seem to care.

Last week, Google finally pulled out the nuclear option, saying that it might just pull out of Australia entirely if the law passes. That's an even bigger threat than the one Facebook made a few months back, when it claimed it would likely block the ability of anyone in Australia to share news on Facebook. But Google says it may shut down entirely in Australia:

“If this version of the code were to become law, it would give us no real choice but to stop making Google search available in Australia,” Silva told senators. “And that would be a bad outcome not only for us, but also for the Australian people, media diversity, and the small businesses who use our products every day.”

Australian officials flipped out that a private company that they're looking to tax at ridiculous levels might... no longer want to do business in their country. The country's Prime Minister, Scott Morrison, claimed that the country won't "respond to threats," but his administration seems to have no problem issuing more threats. Australia's Treasurer, Josh Frydenberg, said that it's "inevitable" that Google and Facebook will have to pay news organizations for daring to send them free traffic.

Frydenberg also claims that Australia can be a "world leader" in passing such legislation, apparently totally ignorant of how many times other countries have already passed similar legislation, and how poorly it's gone. The Bloomberg article there mentions that pulling out of Australia would open up the market to competitors, but that assumes any of them would want to pay the pointless news tax as well.

The hubris level here remains astounding. Google and Facebook send these companies traffic. For free. It's free advertising. These news orgs hire experts to help them perform better on Google and Facebook. And now they want to be paid for it too? While politicians are pulling out the fainting couch in saying "how dare" Google and Facebook threaten to block the entire country, perhaps they might want to look more closely at why they're driving away these successful companies that their citizens (and constituents) clearly like using.

Filed Under: australia, google news, google tax, link tax, news, news tax
Companies: facebook, google

Court Tosses RICO Lawsuit Demanding $90 Million And The Dissolution Of Google For Supposed Anti-Conservative Bias

from the they-hate-me-for-my-narrow-views-on-acceptable-freedoms dept

A lawsuit [PDF] against Google over ad practices and search engine rankings has been dismissed. The allegations start normally before taking a sharp turn into some recently favored causes of action. First, there's the RICO. Second, the plaintiff claims the RICO and everything that goes with it is a result of Google's anti-conservative bias.

Here's the most coherent part of the allegations:

Plaintiff operated a website, https://seniorcare.care/ (“the website”), from 2014 to 2019 that aimed to connect caregivers and assisted living professionals with seniors and families. Between 2016 and 2018, Defendant communicated with Plaintiff through emails, chat rooms, and blogs and induced Plaintiff to make changes to the website to conform with Defendant’s standards and to optimize the number of visits to the website, which Plaintiff did at great cost and expense.. For example, Plaintiff made the website “mobile friendly,” increased the website’s security, created social media accounts, and removed certain ads and pop-up content. Plaintiff made these changes in reasonable reliance on Defendant’s promise that they would improve the search results for the website on Google Search.

That's the end of the reasonable part of the complaint. The next two sentences indicate where this is headed.

Defendant, however, had “blacklist[ed]” Plaintiff and intentionally manipulated Google Search’s algorithms in a way that actually worsened the website’s search results. Defendant did this because conservatives own and operate Plaintiff.

Because of this perception, a lawsuit was filed in May of last year. In addition to claims of anti-conservative bias, the plaintiff lists RICO, Florida's RICO analogue, and the usual tortious interference. Oh, and there's a demand for $90,000,000 in damages. That, or Google agrees to dissolve itself. You know, reasonable demands.

And here's the RICO part of it:

These entities and individuals “operated with a common purpose” to discriminate against and censor conservatives and to damage businesses that conservatives run.

This, too:

Defendant engaged in at least two acts of wire fraud to accomplish this purpose.

The RICO claim fails for a very simple reason: a conspiracy needs more than one "conspirator." Otherwise, there's no conspiring.

Plaintiff has not plausibly alleged the existence of two distinct entities. To the extent that Plaintiff contends that Defendant was part of an enterprise with Alphabet, Inc. and YouTube, Plaintiff has not alleged any facts to support a conclusion that these related corporate entities are distinct for RICO purposes, rather than one corporate “person.” To the extent that Plaintiff contends that Defendant was part of an enterprise with its officers, agents, or employees, or with Alphabet, Inc.’s or YouTube’s officers, agents, or employees, Plaintiff has not identified any of these individuals and has not alleged any facts to support a conclusion that the individuals did not operate within their official capacities for their corporate employers.

Even if the court were to agree that multiple employees overseeing various enterprises under the Alphabet umbrella could credibly be called a "conspiracy," the plaintiff hasn't offered any evidence these many employees conspired against his business and website because the website owner is a conservative.

While Plaintiff alleges in a conclusory manner that members of the purported enterprise had a common purpose to discriminate against and censor conservatives and to damage businesses that conservatives run, Plaintiff has not alleged any facts to demonstrate that each member shared this common purpose.

And the "racketeering" part of the RICO allegations is no better. The court has stared long and hard at the complaint and can't find anything supporting the allegations made or the conclusions drawn by the plaintiff.

As best the Court can discern from the Amended Complaint, the “scheme or artifice to defraud” that Plaintiff alleges is Defendant’s scheme to suppress conservative viewpoints while claiming viewpoint neutrality. See, e.g., DE 19 ¶ 18 (“Google has defrauded hundreds of thousands, perhaps millions, of conservative Floridians in an ongoing effort to discriminate and purge conservatives from Google’s platforms.”); id. ¶ 43 (“Google fraudulently manipulated Search, and made it appear as if Lincoln did not exist.”). And, as best the Court can discern, the transmitted wire communications that Plaintiff alleges are Defendant’s email, chat, and blog communications with Plaintiff about how to conform the website to Defendant’s standards and to optimize the number of visits. See, e.g., id. ¶ 54 (“Google and its agents communicated with Lincoln in interstate commerce hundreds of times using the wires (via Google blogs/chat rooms).”). Plaintiff has not alleged facts to show how the wire communications were “for the purpose of executing” the scheme or artifice to defraud. That is, Plaintiff has not explained how Defendant’s communications about website modifications were for the purpose of furthering the suppression of conservative viewpoints.

If those communications weren't fraudulent, there's no wire fraud. For communications to be fraudulent, they need to be deceptive. That Google never informed the plaintiff of things that actually weren't happening isn't actionable.

Plaintiff’s claim of fraud relies, at least in part, on the failure of Defendant to communicate certain information to Plaintiff. See, e.g., DE 19 ¶ 15 (“Google fraudulently concealed from Lincoln the fact that Google intended to violate Lincoln’s First Amendment Rights and interfere with Lincoln’s business.”); id. ¶ 26 (“Google concealed the fact that no matter what Lincoln did, Lincoln would never obtain any Search results.”); id. ¶ 39 (“Google concealed its institutional bias from the public, including Lincoln.”); id. ¶ 62 (“In its many communications with Lincoln, Google concealed from Lincoln the material fact that Google discriminates against conservatives and that it fraudulently manipulates Search.”)

It's conjecture on top of conjecture, which isn't anywhere near what's needed to survive a motion to dismiss. That goes for the tortious interference allegations, too. There was no contract between Google and the plaintiff. Without a contract or agreement that could be interfered with, there's no basis for claims of interference.

Google argued the First Amendment protects its "editorial judgments in ranking search results" and, even if the allegations of bias were true, protects Google's biases as well. The plaintiff's response was basically, "No, it doesn't." Again, that's not nearly enough to sustain this lawsuit.

Plaintiff does not meaningfully respond to Defendant’s argument, provide any First Amendment analysis, or address this caselaw. Instead, Plaintiff simply states: “The First Amendment does not protect Google’s fraudulent conduct that induced Lincoln to change its website. Fraud and fraudulent concealment is not an ‘editorial judgment’.”

The court then points out this lawsuit is a prime example of "shotgun pleading," where every count adopts all of the proceeding allegations, resulting in the final count being a rerun of the entire pleading to that point. The court notes this makes it all but impossible for the court to suss out which allegations are tied to which cause of action, making the entire thing an incoherent mess. The complaint is dismissed, but without prejudice. The plaintiff has one more chance to amend the complaint into something the court can address on a point-by-point basis.

Even if this does return to court in better shape, it's unlikely to change the outcome. What the court could address shows the allegations are weak, conclusory, and supported by little more than the plaintiff's insistence he's being discriminated against.

Filed Under: anti-conservative bias, rico, search results
Companies: dj lincoln, google, seniorcare

Flo Period App Gets A Wrist Slap For Sharing Private Health Data

from the new-day,-same-behavior dept

Another day, another privacy scandal where the penalties do virtually nothing to prevent history from repeating itself. This time the focus is on the Flo Period period and fertility tracking app, which has struck an arguably pathetic deal with the Federal Trade Commission over allegations that it lied to app users about sharing private health information with third-party firms, including Facebook and Google. According to the complaint and settlement, Flo informed the app's users that customer data would be "kept private." Instead, Flo sold consumer data, including the dates of user periods and their pregnancy plans with third parties:

"...the FTC alleges that Flo promised to keep users’ health data private and only use it to provide the app’s services to users. In fact, according to the complaint, Flo disclosed health data from millions of users of its Flo Period & Ovulation Tracker app to third parties that provided marketing and analytics services to the app, including Facebook’s analytics division, Google’s analytics division, Google’s Fabric service, AppsFlyer, and Flurry."

Like so many app makers, companies, and telecom giants, the company hid behind claims that this data was "anonymized," despite a laundry list of studies showing how anonymized data isn't really anonymous (especially when an attacker, government or company has access to other data sets). Also like a long list of companies, consumer privacy appears to have been last thing on Flo's mind as they looked for ways to monetize user data. As a result, Flo didn't restrict how this data could be used in any meaningful way.

The settlement comes on the heels of a 2019 story by the Wall Street Journal that first disclosed Flo's dubious privacy and security practices. Other detailed studies on several fronts have made it clear this has been a problem in the health app sector for years, with smoking cessation and mental health apps generally doing the same thing. It's something the FTC claims to be working on, but clearly hasn't made much of a dent in:

"Apps that collect, use, and share sensitive health information can provide valuable services, but consumers need to be able to trust these apps,” said Andrew Smith, director of the FTC’s Bureau of Consumer Protection. “We are looking closely at whether developers of health apps are keeping their promises and handling sensitive health information responsibly."

Think about the sheer volume of apps and companies engaging in this kind of behavior, then remember that the US FTC, quite intentionally, has about 8% of the staff focused on privacy as UK privacy regulators do, despite the UK having one-fifth as many citizens. This is, much like our inability to pass even basic privacy guidelines for the internet era, by design, not accident. We hamstring, underfund, and understaff our regulators (when we're not busy actively sabotaging their legal authority), then stand around with a dumb look on our collective faces wondering why US privacy is such a hot mess.

The settlement includes no financial penalty whatsoever, and while Flo will now inform users their data is being sold to third parties, it doesn't have to acknowledge any wrongdoing. Surely that will fix things.

Filed Under: apps, data sharing, ftc, privacy
Companies: facebook, flo, google

Inauguration Has Happened, Google And Facebook Should End The Ban On Political Advertisements

from the it's-not-all-presidential-campaigns-and-nonsense dept

In light of the events at the Capitol, social media and other online companies have been reevaluating who they let speak on their platforms. The ban of President Trump from Twitter, Facebook, and various other platforms has sparked fierce debate over moderation and free speech. But Google’s recently reinstituted ban on political advertisements until at least inauguration day and the continued ban from Facebook are silencing voices that need to be heard the most – those speaking about state and local political issues.

Before last November’s election, both Google and Facebook restricted the ability of political advertisers to submit and run new ads. This policy was implemented to prevent situations like those in 2016, when Russian agents were able to purchase $100,000 in Facebook ads related to that year’s presidential election. Although these ads did nothing to affect the outcome of the election, they gave rise to the spurious narrative that Russia “hacked” the election.

But Facebook’s ban has continued far past election day under the stated purpose of preventing ads claiming the election results were rigged or that the election had been stolen. Google eventually returned to allowing ads and Facebook made an exception for the Georgia runoff. However, the companies’ most recent bans leave many smaller speakers without two of their most important platforms, despite the policies’ failure to prevent the spread of doubt over the 2020 election results.

Politicians like Alexandria Ocasio-Cortez and Ted Cruz, while certainly benefiting from social media, can reach an audience without these platforms. But many other speakers who want to speak to local audiences about important political issues have come to rely on them.

Before the advent of targeted online advertisements, communicating and organizing locally required going door-to-door or hanging flyers in your neighborhood. If you could find enough support, perhaps you could even set up a meeting in a public space. The old system was not only inefficient, but often costly in terms of time and money.

This is what makes advertising on Facebook and Google so valuable to those wanting to engage on important issues. Want to inform your neighbors about a city board meeting over a key issue for your community? Want to build a coalition of people to support or oppose an issue at your state capitol? Facebook and Google can do so more successfully, and at a fraction of the cost.

This is often the most important kind of political engagement - forming relationships with your fellow citizens to make your voices heard on issues that carry major personal impacts and are far too often under-reported and less understood.

And make no mistake, the last year has featured no shortage of critical state and local issues.

State legislatures are already in session dealing with important and contentious topics like education, budget cuts, and of course, the rollout of the COVID-19 vaccine. Local governments are still dealing with shutdowns and business closures as the pandemic continues into 2021. And as organizing in person gets increasingly difficult, if not impossible, digital tools are becoming even more important.

Key state and local issues are also too often drowned out by politics at the national level. Given the turbulent times we are living through, who can blame people for being glued to the events unfolding in Washington? That’s why Facebook and Google ads are important tools to draw attention to state and local issues.

Inauguration is over and the stated purpose of banning these ads has passed. But more importantly our federalist system of government means that politics don’t only happen at the national level. Rather, the political issues that most greatly affect our lives are those closest to home. Facebook and Google should recognize this fact and end its political ad ban which puts national politics ahead of state and local issues.

The internet is at its best when it informs and connects local communities on the issues that impact them. Blanket political ad bans lessen the opportunity for this kind of much-needed engagement while also failing to improve the national discourse.

Eric Peterson lives in New Orleans where he is the Director of the Pelican Center for Technology and Innovation

Filed Under: messaging, political ads, politics, social media
Companies: facebook, google, twitter

A Few More Thoughts On The Total Deplatforming Of Parler & Infrastructure Content Moderation

from the it's-tricky dept

I've delayed writing deeper thoughts on the total deplatforming of Parler, in part because there was so much else happening (including some more timely posts about Parler's lawsuit regarding it), but more importantly because for years I've been calling for people to think more deeply about content moderation at the infrastructure layer, rather than at the edge. Because those issues are much more complicated than the usual content moderation debates.

And once again I'm going to make the mistake of offering a nuanced argument on the internet. I urge you to read through this entire post, resist any kneejerk responses, and consider the larger issues. In fact, when I started to write this post, I thought it was going to argue that the moves against Parler, while legal, were actually a mistake and something to be concerned about. But as I explored the arguments, I simply couldn't justify any of them. Upon inspection, they all fell apart. And so I think I'll return to my initial stance that the companies are free to make decisions here. There should be concern, however, when regulators and policymakers start talking about content moderation at the infrastructure layer.

The "too long, didn't read" version of this argument (and again, please try to understand the nuance) is that even though Parler is currently down, it's not due to a single company having total control over the market. There are alternatives. And while it appears that Parler is having difficulty finding any such alternative to work with it, that's the nature of a free market. If you are so toxic that companies don't want to do business with you, that's on you. Not them.

It is possible to feel somewhat conflicted over this. I initially felt uncomfortable with Amazon removing Parler from AWS hosting, effectively shutting down the service, and with Apple removing its app from the app store, effectively barring it from iPhones. In both cases, those seemed like very big guns that weren't narrowly targeted. I was less concerned about Google's similar removal, because that didn't block Parler from Android phones, since you don't have to go through Google to get on an Android phone. But (and this is important) I think all three moves are clearly legal and reasonable steps for the companies to take. As I explored each issue, I kept coming back to a simple point: the problems Parler is currently facing are due to its own actions and the unwillingness of companies to associate with an operation so toxic. That's the free market.

If Parler's situation was caused by government pressure or because there were no other options for the company, then I would be a lot more concerned. But that does not appear to be the case.

The internet infrastructure stack is represented in different ways, and there's no one definitive model. But an easy way to think of it is that there are "edge" providers -- the websites you interact with directly -- and then there's everything beneath them: the Content Delivery Networks (CDNs) that help route traffic, the hosting companies/data centers/cloud providers that host the actual content, the broadband/network/access providers, and the domain registers and registrars that help handle the naming and routing setup. And there are lots of other players in there as well, some (like advertising and certain communications providers) with elements on the edge and elements deeper in the stack.

But a key thing to understand is the level of granularity with which different players can moderate, and the overall impact their moderation can have. It's one thing for Twitter to remove a tweet. It's another thing for Comcast to say "you can't access the internet at all." The consequences of moderation get much more severe the deeper you go into the stack. In this case, AWS's only real option for Parler was to remove the entire service, because it couldn't just target the problematic content (of which there was quite a lot). As for the app stores, it's a tricky question. Are app stores infrastructure, or edge? Perhaps they are a little of both, but they had the same limited options: remove the app entirely, or leave it up with all its content intact.

For many years, we've talked about the risks of saying that players deeper in the infrastructure stack should be responsible for content moderation. I was concerned, back in 2014, when there was talk of putting liability on domain registrars if domains they had registered were used for websites that broke the law. There have been a few efforts to hold such players responsible as if they were the actual lawbreakers, and that obviously creates all sorts of problems, especially at the 1st Amendment level. As you move deeper into the stack, the moderation options look less like scalpels and more like sledgehammers that remove entire websites from existence.

Almost exactly a decade ago, in a situation that has some parallels to what's happened now, I highlighted concerns about Amazon deciding to deplatform Wikileaks in response to angry demands from then Senator Joe Lieberman. I found that to be highly problematic, and likely unconstitutional -- though Wikileaks, without a US presence, had little standing to challenge it at the time. My concern was less with Amazon's decision, and more with Lieberman's pressure.

But it's important to go back to first principles in thinking through these issues. It's quite clear that companies like Amazon, Apple, and Google have every legal right to remove services they don't want to associate with, and there are a ton of reasons why people and companies might not want to associate with Parler. But many people are concerned about the takedowns based on the idea that Parler might be "totally" deplatformed, and that one company saying "we don't want you here" could leave them with no other options. That's not so much a content moderation question, as a competition one.

If it's a competition question, then I don't see why Amazon's decision is really a problem either. AWS only has 32% marketshare. There are many other options out there -- including the Trump-friendly cloud services of Oracle, which promotes how easy it is to switch from AWS on its own website. Oracle's cloud already hosts Zoom (and now TikTok's US services). There's no reason they can't also host Parler.*

But, at least according to Parler, it has been having trouble finding an alternative that will host it. And on that front it's difficult to feel sympathy. Any business has to build relationships with other businesses to survive, and if no other businesses want to work with you, you might go out of business. Landlords might not want to rent to troublesome tenants. Fashion houses might choose not to buy from factories with exploitative labor practices. Businesses police each other's business practices all the time, and if you're so toxic that no one wants to touch you... at some point, maybe that's on you, Parler.

The situation with Apple and Google is slightly different, and again, there are lots of nuances to consider. With Apple, obviously, it is controlling access to its own hardware, the iPhone. And there's a reasonable argument to be made that Apple offers the complete package, and part of that deal is that you can only add apps through its app store. Apple has long argued that it does this to keep the phone secure, though it could raise some anti-competitive concerns as well. But Apple has banned plenty of apps in the past (including Parler competitor Gab). And that's part of the nature of iPhone ownership. And, really, there is a way to route around Apple's app store: you can still create web apps that will work on iOS without going through the store. This does limit functionality and the ability to reach deeper into the iPhone for certain features, but those are the tradeoffs.

With Google, it seems like there should be even less concern. Not only could Parler work as a web app, Google does allow you to sideload apps without using the Google Play store. So the limitation was simply that Google didn't want the app in its own store. Indeed, before Amazon took all of Parler down, the company was promoting its own APK to sideload on Android phones.

In the end, it's tough to argue that this is as worrisome as my initial gut reaction said. I am still concerned about content moderation when it reaches the infrastructure layer. I am quite concerned that people aren't thinking through the kind of governance questions raised by these sledgehammer-not-scalpel decisions. But when exploring each of the issues as it relates to Parler specifically, it's hard to find anything to be that directly concerned about. There are, mostly, alternatives available for Parler. And in the one area that there apparently aren't (cloud hosting) it seems to be less because AWS has market power, and more because lots of companies just don't want to associate with Parler.

And that is basically the free market telling Parler to get its act together.

* It's noteworthy that AWS customers can easily migrate to Oracle Cloud only because Oracle copied AWS's API without permission which, according to its own lawyers is copyright infringement. Never expect Oracle to not be hypocritical.

Filed Under: app stores, aws, cloud computing, content moderation, deplatforming, infrastructure, network stack, play store
Companies: amazon, apple, google, parler

When You Can't Innovate, You Litigate: Oracle Gleefully Takes Credit For Attacks On Section 230 And Google

from the shameful dept

A few weeks ago, Oracle announced that it was moving its headquarters out of Redwood Shores, in the middle of Silicon Valley, to Austin, Texas. The move is more symbolic than anything else. The company told employees they can continue working from wherever they want and founder Larry Ellison sent an email to all employees saying he'll be working from the island of Lanai, which he purchased a few years ago. But the symbolism of the move works in multiple ways. Despite being founded and headquartered in Silicon Valley for almost half a century, Oracle has long represented the anti-Silicon Valley approach to innovation.

Nearly a decade ago, cartoon artist Manu Cornet made this truly classic cartoon image of tech company org charts (which he thankfully put under a Creative Commons license):

I've heard people at all of those companies more or less confirm the accuracy of every one of those. The Oracle one is particularly on point:

For a while now, people in Silicon Valley have been well aware of Oracle's reputation as the anti-innovation behemoth, especially following its attack on APIs, interfaces, and how software is developed with the case against Google's reimplementation of the Java API. We're still waiting on how the Supreme Court rules on that one, to see whether or not Oracle has succeeded in undermining a key part of how software is developed -- including Oracle's own practices in reimplementing others' APIs.

Bloomberg now has a big report on how all of the recent antitrust cases against Google have Oracle's fingerprints all over them, and in the article, Oracle's top lobbyist gleefully takes credit for it.

What's less known is that Oracle Corp. spent years working behind the scenes to convince regulators and law enforcement agencies in Washington, more than 30 states, the European Union, Australia and at least three other countries to rein in Google's huge search-and-advertising business. Those efforts are paying off.

Officials in more than a dozen of the states that sued Google received what has been called Oracle’s “black box” presentation showing how Google tracks users’ personal information, said Ken Glueck, Oracle’s top Washington lobbyist and the architect of the company’s antitrust campaign against Google. Glueck outlined for Bloomberg the presentation, which often entails putting an Android phone inside a black briefcase to show how Google collects users’ location details — even when the phones aren’t in use — and confirmed the contours of the pressure campaign.

“I couldn’t be happier,” said Glueck about the barrage of lawsuits. “As far as I can tell, there are more states suing Google than there are states.”

The thing is, Oracle more or less admits that it's doing this purely out of spite and the fact that it has failed to innovate and keep up with more nimble and innovative competitors. Oracle and Larry Ellison made some big bets early on that flopped. And rather than correct course and innovate, it has focused on what we've referred to as political entrepreneurship: lobbying and using the powers of government to shut down competitors, rather than innovate.

As many of us suspected, but is now confirmed by the article, Oracle is also a key player in trying to dismantle Section 230:

Oracle was one of the first companies to push Congress to adopt an anti-sex-trafficking measure in Congress, not because it was critical to its business but because Oracle knew it could hurt Google, according to a person familiar with the matter. The legislation weakened legal liability protections for tech companies such as Google from lawsuits over user-generated content in sex-trafficking cases.

Again, as many of us long knew, but didn't have public confirmation of, Oracle plays dirty in trying to smear anyone defending the open internet:

It’s also a master at stealth lobbying tactics, such as digging up dirt on competitors, disseminating opposition research and supporting dark-money groups that publicize negative findings about rivals.

In the article, it also points out that Oracle hired a firm to pay cleaning staff at a research group that wrote reports Oracle didn't like to rifle through the organization's trash to dig up dirt.

The article also confirms our earlier reporting about how Oracle execs sucking up to Trump, and Oracle's ability to label other companies' execs as saying anti-Trump stuff, was the key to it landing the TikTok deal:

Oracle won some battles after fostering ties to President Donald Trump. Oracle Chief Executive Officer Safra Catz and Glueck were part of Trump’s transition team. Catz advised the president on trade policy and serves on the National Security Commission on Artificial Intelligence.

Those ties may have proven fruitful when Microsoft was in pole position to acquire the U.S. operations of TikTok, the popular video app that Trump ordered its Chinese owner to sell. When TikTok picked Oracle as its preferred partner, after a phone call with Executive Chairman Larry Ellison, the president backed Oracle’s last-minute bid for a minority stake in the app as part of a deal that’s pending approvals.

As the article highlights, Oracle's revenue has continued to remain steady while all the tech companies it attacks politically have continued to thrive. And the reason for that is that those companies have built better products, while Oracle... hasn't. Instead, it's taken the tried and trued losers' approach. If you can't innovate, litigate. Or, in this case, rig the political system for favors. It's shameful.

Of course, what the Bloomberg report mostly leaves out is how much of this actually harms innovation and competition in the long run. We've already pointed out just how insanely short-sighted Oracle's API copyright case is. If you want to actually undermine Google's market share, making sure that others can reimplement its APIs is key. And while Oracle's cloud business is way behind leaders like Amazon, Microsoft, and Google, one of these days, someone in Oracle's giant legal and lobbying team is going to wake up and remember that Section 230 protects its cloud business too.

But, of course, Oracle would rather set fire to the entire internet than realize it needs to innovate.

Filed Under: antitrust, innovation, ken glueck, litigation, politics, section 230
Companies: google, oracle

Czech Search Engine Seznam Joins In the 'Let's Sue Google' Fun, Seeks $417 Million in Damages

from the good-luck-with-that dept

It seems that people have decided that now is a good time to attack Google in various ways. In October, the US Justice Department sued Google for allegedly violating antitrust laws. This month, ten US states sued Google, alleging anticompetitive behavior, followed by another 38 states, alleging that the company has created an illegal monopoly in online search and advertising. In November, 165 companies and industry bodies sent a letter to the EU complaining about Google and asking for tougher antitrust action. The EU has also released first drafts of its new Digital Services Act, and Digital Markets Act. One of the key elements of the new laws is tackling the power of leading online platforms like Google.

The EU has already taken steps towards that end. Back in 2018, the EU fined Google €4.34 billion for breaching antitrust rules. As part of its compliance with the EU's demands, Google introduced a process whereby other search engines can bid to appear on a "choice screen", which lets Android users pick the default search engine when they set up their smartphone. However, some rival search engines, like DuckDuckGo, were unhappy with the approach. At the end of October, DuckDuckGo, along with Ecosia, Lilo, Qwant and Seznam -- search engines from Germany, France, France and the Czech Republic, respectively -- sent an open letter to the European Commission on the subject:

We are companies operating search engines that compete against Google. As you know, we are deeply dissatisfied with the so-called remedy created by Google to address the adverse effects of its anticompetitive conduct in the Android case. We understand that Google regularly updates you regarding its pay-to-play auction, but it appears that you may not be receiving complete or accurate information.

We are writing to request a trilateral meeting with your office, ourselves, and Google, with the goal of establishing an effective preference menu. Our respective designees could work in advance to create a tight agenda for this meeting to ensure it is productive and collaborative.

Now one of those search engines -- Seznam -- has gone even further, reported here by Reuters:

Seznam.cz, the Czech Republic's leading home-grown web search platform, said on Thursday it had claimed 9.072 billion crowns ($417 million) in damages from Google, alleging that the U.S. giant restricted competition.

What makes this move noteworthy is that Seznam bases its claim on the fact that the EU has already determined that Google had breached EU rules in this area. The complaint concerns the period 2011 to 2018, before the EU forced Google to adopt the choice screen. Seznam's deputy chairman Pavel Zima, is quoted as saying: "we claim the compensation of damage that we have suffered while trying to distribute our applications and services via mobile devices with Android operation system". According to Reuters, Seznam has sent the claim to Google with a 30-day deadline, and says that it is prepared to take civil legal action if necessary. We'll see if it does, and how that works out.

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Filed Under: antitrust, competition, eu, search
Companies: google, seznam

Another Day, Another Antitrust Lawsuit For Google:

from the let-me-rest dept

So, just as I was finishing off the post on Wednesday's antitrust lawsuit against Google brought by 10 states, news broke that the other big state antitrust case against Google had been filed as well. This one involves 38 states, led by Colorado and Nebraska. I'm assuming that this is the main state antitrust lawsuit that states had been talking about, as compared to the first lawsuit with fewer states. Whereas the first state lawsuit focused on display ads, this one focuses on the market for search.

You can read the full filing, which I'd recommend. I think this one is the most interesting of the three antitrust lawsuits that have been filed against the company. Part of the argument more or less rehashes the DOJ's weak case that because Google pays Apple an astounding amount of money to be the default search on iPhones, that's proof of anti-competitive behavior. That's an argument that still just doesn't make any sense to me at all. If the accusation is that Google is abusing its position, you'd think it wouldn't be paying $8 to $12 billion dollars to Apple. If anything, that suggests that it's Apple who has the market power, rather than Google.

Where the case gets potentially more interesting is in the part where it argues that Google is abusing its search advertising tool, called SA360, in anticompetitive ways:

Advertising tools that optimize companies’ search advertising purchases have become increasingly important to advertisers. Google’s own search advertising tool, SA360, serves more advertisers than any other tool. Such tools can promote competition in search advertising by, for example, allowing easy comparison of competing offers.

Google has consistently assured advertisers that it would operate SA360 in a neutral manner. But Google harms competition by refusing interoperability to comparable advertising features offered by Microsoft’s Bing general search engine. Instead, Google continuously favors advertising on its own platform and steers advertiser spending towards itself by artificially denying advertisers the opportunity to evaluate the options that would serve those advertisers best. No technical or operational barrier prevents SA360 from providing advertisers with direct and interoperable access to relevant data and important functionality from multiple general search engines.

But the details here matter. If Google is being misleading about SA360, then that seems like it should be an FTC false advertising claim, rather than strictly an antitrust claim. But also, it's odd that the lawsuit seems to insist that refusing to interoperate with the company's main competitor in search, Bing, is somehow proof of anticompetitive behavior. I'd love it if there were a lot more interoperability, but I'm not sure this alone trips a real antitrust concern.

The lawsuit also goes down a weird well in claiming that suppressing "specialized search" sites is anti-competitive. There have been a few such sites that have complained about such things, but generally speaking those are spam sites. The reason that Google demoted them was that they made the Google search process worse, by sending you not to the results users were looking for, but to one of those specialty search engines that had good enough SEO to rank high in Google. That was very much a bad customer experience. But, the complaint argues that Google treats companies differently in way that is potentially problematic:

To artificially foreclose this opportunity and maintain its search-related monopolies, Google takes advantage of the fact that it has already banished rival general search engines to the fringes of the search-related markets, which has fostered an artificial dependence by specialized vertical providers on Google as a way to acquire customers. Doubling down on its exclusionary conduct, Google takes advantage of certain specialized vertical providers’ dependence on Google, treating them differently than participants in other commercial segments and further limiting their ability to acquire customers.

Google has already responded to the lawsuit by saying that it can defend all these decisions as making the product better for its users. And it's going to need to really prove that, because there do remain some decisions that are, at the very least, headscratching (like Google using only its own local listings for the carousel, rather than using the wider ecosystem of sites).

Of the three antitrust lawsuits filed against Google so far, this one strikes me as the most serious (with the caveat that some of the redacted parts of the other lawsuit filed this week sound pretty explosive, but the key details are all redacted, so it's tough to tell). The DOJ's lawsuit remains (by far) the weakest of the bunch.

I am assuming that these lawsuits will eventually be combined in some form. NY's Attorney General had original said that the intention of this latest lawsuit was to be combined with the DOJ's. It seems possible that all three lawsuits will be merged into one massive lawsuit. This latest one still has some problems, but the lawyering is much better than the DOJ's and the end result of this case will likely be the most interesting to watch concerning the future of search and search advertising.

Filed Under: antitrust, colorado, competition, nebraska, search, search advertising
Companies: google