DOJ Using The FOSTA Playbook To Attack Encryption

from the watch-out dept

For years now, the various DOJ folks pushing to break encryption have whined and complained that the tech industry won't even consider having an adult conversation about encryption. This, of course, has never been true. Indeed, in just the past few weeks we've highlighted two separate examples of attempts to bring together law enforcement folks and technology/cryptography experts to see if there are legitimate ways to move the conversation forward. That first one came up with an interesting and useful framework for judging any conversation about "lawful access" to encrypted communications, while the second demonstrated just how much various tech companies have been doing over the years -- in particular in helping law enforcement deal with the issue of child abuse.

And what do they get for all that? First, a horrific article in the NY Times that accurately highlights the awfulness of child sexual abuse online... but oddly frames the efforts that various tech companies have put into helping law enforcement as... evidence of not caring about the problem. And, of course, suggests that encryption is part of the problem:

After years of uneven monitoring of the material, several major tech companies, including Facebook and Google, stepped up surveillance of their platforms. In interviews, executives with some companies pointed to the voluntary monitoring and the spike in reports as indications of their commitment to addressing the problem.

But police records and emails, as well as interviews with nearly three dozen local, state and federal law enforcement officials, show that some tech companies still fall short. It can take weeks or months for them to respond to questions from the authorities, if they respond at all. Sometimes they respond only to say they have no records, even for reports they initiated.

And when tech companies cooperate fully, encryption and anonymization can create digital hiding places for perpetrators. Facebook announced in March plans to encrypt Messenger, which last year was responsible for nearly 12 million of the 18.4 million worldwide reports of child sexual abuse material, according to people familiar with the reports. Reports to the authorities typically contain more than one image, and last year encompassed the record 45 million photos and videos, according to the National Center for Missing and Exploited Children.

This is following the FOSTA/SESTA game plan. Highlight legitimately horrific examples of horrible things that people have done (in FOSTA's case, sex trafficking; here child porn). Then, follow it up by blaming the internet platforms and technology even if those platforms have actively helped law enforcement over and over again. Encryption is repeatedly suggested as truly evil.

Increasingly, criminals are using advanced technologies like encryption to stay ahead of the police.

"Advanced technologies"? And then:

Offenders can cover their tracks by connecting to virtual private networks, which mask their locations; deploying encryption techniques, which can hide their messages and make their hard drives impenetrable; and posting on the dark web, which is inaccessible to conventional browsers.

And again:

Tips included tutorials on how to encrypt and share material without being detected by the authorities.

Yes, encryption can be used to hide bad stuff. No doubt about it. However, it also protects the privacy and security of everyone else as well. There are real tradeoffs here to be discussed -- and we shouldn't forget that one element in that discussion is that law enforcement does have other tools to track down and find those involved in child porn. That encryption blocks some evidence does not mean there are not other ways for them to collect evidence -- as we've seen in many other cases.

But, given that Attorney General William Barr has been on an anti-encryption kick lately, as has FBI Director Chris Wray, it shouldn't be a huge surprise that they've teamed up for a DOJ "symposium" more or less building on the NY Times article (for which the DOJ appears to have been a major source), in which there appears to be an an entirely one-sided lineup of speakers to discuss the scary sounding:

Lawless Spaces: Warrant-Proof Encryption and Its Impact On Child Exploitation Cases

Barr is speaking, as is Wray. So is Deputy Attorney General Jeffrey Rosen, who also spent the summer trashing encryption. There are also two foreign speakers. There's Peter Dutton, the Home Affairs Minister from Australia, who lead that country's efforts to backdoor encryption with a bunch of ridiculously misleading claims about how companies that offer encryption should be blamed for anyone using it for illegal activity. Then there's the UK's Home Secretary, Priti Patel, who we had just mentioned earlier this week for her statements that encryption "empowers criminals."

There does not appear to be a single cryptographer on the program. There does not appear to be a single technologist on the program. There does not appear to be anyone who can provide even the slightest counterweight to the idea that encryption is just a tool for criminals. Contrast this to the sessions we talked about at the opening of this piece. The Carnegie Endowment and Stanford each actually invited people from a variety of different viewpoints and made sure to have actual experts involved. The DOJ is not doing that. This is pure theater as part of a public relations campaign to undermine the encryption that keeps us all safe.

Yes, you can point out very real and horrifying examples of people abusing just about any technology. But in a sane world, you then start looking at the actual size of the problem, the actual risks, the alternative approaches, and the costs and benefits associated with all of them. Not a single person on the DOJ's list of speakers seems equipped to do that. Given that we've quoted each and every one of them right here on Techdirt staking out an extreme anti-encryption standpoint over and over again, suggests that, unlike the tech industry, which has held and participated in various discussions, the DOJ just wants to set up scare mongering stories in the press before pushing for legislation that will destroy encryption and put us all at risk. For our safety.

As you'll recall, AG Barr himself had ominously warned that if the tech industry didn't "engage" then eventually there would be some sort of "incident" to "galvanize public opinion" against encryption:

Obviously, the Department would like to engage with the private sector in exploring solutions that will provide lawful access. While we remain open to a cooperative approach, the time to achieve that may be limited. Key countries, including important allies, have been moving toward legislative and regulatory solutions. I think it is prudent to anticipate that a major incident may well occur at any time that will galvanize public opinion on these issues.

Well, the industry was willing to engage and explain the costs of undermining encryption. But rather than understand that, it now looks like Barr is working overtime to manufacture that "major incident" to galvanize public opinion against their own security. It's a shame the NY Times decided to help.

Filed Under: child porn, chris wray, doj, encryption, fosta, going dark, moral panic, peter dutton, priti patel, william barr
Companies: facebook, google, ny times

Bedbug Privilege: Bret Stephens Uses His NY Times Column To Suggest Jokingly Comparing Him To A Bedbug Is Prelude To Ethnic Genocide

from the are-bedbugs-snowflakes? dept

It's one thing to trigger a massive Streisand Effect. It's another to keep on making it worse. Bret Stephens is entering new territory here. Last week, we wrote about his bedbug freakout, in which he misread a tweet that basically no one had seen or read, and tried to use his high and mighty position as a "NY Times Columnist" to get a professor fired, by angrily emailing that professor and cc'ing university provost. As you'll recall, the professor, David Karpf of George Washington University, had simply cracked a mild joke in response to someone at the NY Times tweeting that there were bedbugs in the NY Times offices: "The bedbugs are a metaphor. The bedbugs are Bret Stephens."

Now, let's pause for a second, to note that Stephens appears to have misread this tweet. It is not calling him a bedbug. It's saying that "bedbug is a metaphor for Bret Stephens." In other words, he's joking that other NY Times staffers want to get rid of Stephens, but are having trouble doing so.

Stephens dug himself a deeper hole the next morning by going on MSNBC and trying to defend his nonsense -- saying he wasn't trying to get Karpf fired, but just wanted his bosses to be aware of how professors at the school acted. That's nonsense and everyone knows it's nonsense. You don't angrily email someone's boss and complain about them hoping for no response whatsoever. Stephens is insulting everyone's intelligence with such a claim. Stephens also claimed that he took such offense to being called a bedbug (remember, he wasn't being called a bedbug) because it was associated with how "totalitarian regimes" act in dehumanizing people. Again, no one believes this. No one read Karpf's joke of a tweet and thought, "man, it's time to send Stephens to the ovens."

Either way, Stephens had a whole week to calm down, and to recognize he totally and completely overreacted. He could even it as a growing moment. Perhaps recognize that many of his columns about how easily people take offense, and how people need thicker skin, were kinda hypocritical, given his own reaction to a very mild criticism. But, nope. Stephens apparently thinks himself too important, and is way too cocky and overly sure of himself, to let such a grave insult pass him by. He seems to think he was really, really onto something with that comparison to totalitarian regimes. And, he's an important NY Times columnist -- so it must be time to write a full column about how the Nazis called Jews bedbugs. He just... needed to find the right quote and be too technologically illiterate to recognize that when you link to Google books, after doing a search it retains your search terms.

So, Stephens writes one of his high and mighty NY Times opinion pieces about Nazis "and the Ingredients of Slaughter." He doesn't mention Karpf or his own little laughable freakout. He just subtly (I'm sure, he must have thought) drops in a reference to Germans referring to bedbugs. And didn't realize that he'd left the search terms viewable to all.

And here's an even bigger image showing how the search was left in the URL so that it shows up whenever anyone clicked through:

From that it's clear that Bret literally went to Google books, did a search on "Jews as bedbugs," found a random dissertation that had the following line in it:

“The bedbugs are on fire. The Germans are doing a great job.”

This gets even more troubling if one were to read the actual paper that Stephens links to. In Stephens' column, he refers to this quote as coming from "a Polish anti-semite." Yet, in the actual book, it just says "one man." And, even worse, the book itself appears to note that a scholar believes the reference to bedbugs was to be taken literally, as they were dealing with an infestation of bedbugs -- and not as a reference to Jews.

Incredibly -- and literally unbelievably -- the NY Times jumped in to defend Stephens and claim that editors added that link:

First of all, what? This makes no sense at all. Or, as Cody Johnston rightly points out, if the NY Times editors were trying to find the right Google Books link to use, why did they do a search for "Jews as bedbugs," rather than the literal quote that Stephens included in his piece? Second, if it actually was the editors who added that link, that actually makes the whole thing worse, because it suggests that editors reviewed the column and decided, "you know what this needs? That much more evidence that Stephens and the NY Times are all in on using our position of power to stomp out a pesky professor on Twitter who made a mild joke at our expense."

All of this looks really, really bad. And, of course, it looks worse and worse, the more you look at it. As others have noted, Stephens seems to specialize in "telling snowflakes to harden up" and to stop being so easily offended. Indeed, just months ago, he mocked people "who specialize in being offended."

But, again, it gets worse. Karpf initially responded to the latest NYTimes-level subtweet, with a bit of shock:

But then, he correctly noted just how fucked up this whole thing really is:

Indeed, Karpf spent a couple days after all of this happened running circles around Stephens in talking to the media and explaining why Stephens actions are really, really messed up. In the op-ed piece he did for the LA Times, he properly notes that, despite Stephens' laughable claims that he just wanted "civility," it's obvious that Stephens' actions were never about civility:

This was never about civility; it was about power. Bret Stephens cc’d my provost because he wanted to impose a social penalty on me for making jokes about him online. That isn’t a call for polite, civil, rational discourse. It’s an exercise of power. He wanted me and my employer to realize that I had offended an important voice at the paper of record. When powerful people demand civility from those with less power, what they are really saying is that they expect obedience from their lessers.

This NY Times' piece (which was written after Karpf wrote that line) is a pretty big piece of evidence there. Stephens thinks he's important. He has a Pulitzer Prize. He's a columnist at the NY Times. He is trying to abuse that position of power to pretend a mild insult directed at him is the equivalent of Hitler. This is a mixture of both the Streisand Effect and Godwin's Law... with a bit of Charles Carreon's inability to stop digging thrown in for spice.

Over in Esquire, Karpf further noted just what an example this all is of Stephens abusing his position of power:

Bret Stephens is above me in the status hierarchy. He knows this. I know this. He has won a Pulitzer Prize and has a regular op-ed column in the New York Times. I am just some professor. I’ve written two books, but unless you are professionally involved with digital politics, you probably have never heard of me.

[....]

But what was most striking to me was that he had gone to the effort to CC the provost. Including the Provost clarifies the intent of the message. It means he was not reaching out in an earnest attempt to promote online civil discourse. It means he was trying to send a message that he stands above me in the status hierarchy, and that people like me are not supposed to write mean jokes about people like him online. It was an exercise in wielding power—using the imprimatur of The New York Times to ward off speech that he finds distasteful.

Again, Karpf wrote this before Stephens then used the literal pages of the NY Times to imply that Karpf was the equivalent of a Nazi cheering on the death of Jews.

Karpf points out that, while he's relatively immune from Stephens abuse of power, others are not so fortunate, and not so privileged:

But here’s what still bothers me as this strange episode recedes from the news cycle: Bret Stephens seems to think that his social status should render him immune from criticism from people like me. I think that the rewards of his social status come with an understanding that lesser-known people will say mean things about him online.

Stephens reached out to me in the mistaken belief that I would feel ashamed. He reached out believing my university would chastise me for provoking the ire of a writer at The New York Times. That’s an abuse of his social station. It cost me nothing, but it is an abuse of his power that would carry a real penalty for a younger or less privileged academic. The Times should expect more of its writers. Stephens should expect more of himself.

Indeed, back in the LA Times piece, Karpf lays it out even more clearly:

Part of why this story has gone viral is that it is about so little. The daily news is terrible. The Amazon rainforest is burning, the president retweets white nationalists, the economy looks like it is heading for a recession… By contrast, Bret Stephens, the author of “Free Speech and the Necessity of Discomfort,” couldn’t handle the slightest discomfort when he saw speech about himself online. The stakes are low here, while they are terrifyingly high elsewhere. But it’s worth keeping in mind that these viral media stories are usually much worse for everyone involved. I am a tenured white male professor. I have taken remarkably little online abuse as a result of this episode. If Stephens had directed his message to one of my female colleagues, they would have faced much more online vitriol. I’ve had zero death threats. Many women with a public platform receive a death threat with their daily morning coffee. This particular episode was pretty low-stakes, but we still have a lot of work to do here.

Now that Stephens has taken things to another level by taking what was a mild joke at his behest and turning it into comparing the joker to the freaking Nazis, Karpf has again handled things much, much better. His latest piece in Esquire after Stephens' column is also really good at digging in to the heart of what happened here:

Twitter jokes from obscure academics are not where the armed violence targeting synagogues is coming from. He ought to read Sarah Jeong’s recent piece, “When the Internet Chases You From Your Home.” It takes an extraordinarily incurious mind to believe, in 2019, that the most vulnerable populations online are moderate Republicans like himself, given what women and people of color who dare to participate in public discourse routinely face.

The greatest irony is how easily this whole episode could have been avoided, or at least prematurely brought to a close. This should have been a goofy one-day story about barely anything at all. On Tuesday morning, Stephens could have simply said “I had a bad night. I shouldn’t have sent that email. I didn’t think the guy would post it to social media. That was embarrassing for me. I apologize, let’s move on.” That would have been the end of things. Barring that, he could have laid low for a week. He could have written a column about anything other than the “Bretbug” dustup. As a professor of strategic political communication, I could have told him that the only way for him to stop losing here is to stop playing.

Instead, Stephens used the largest weapon at his disposal—his New York Times column—to imply that the Jewish professor who mildly teased him online was the equivalent of a Nazi propagandist. (Godwin’s Law, by the way, is meant to describe internet discussion forums, not published columns in the paper of record.)

Oh. And, of course you know it gets worse. Considering that the entire crux of Stephens' column was to suggest that comparing people to insects is setting the stage for genocide, you had to know that people were going to point out that Stephens himself has (you already saw this one coming a million miles away, right?) compared people to insects. Specifically, in a 2013 WSJ column, Stephens compared Palestinians to mosquitoes.

And then even worse. As others quickly discovered, back in 2004, Stephens compared the Palestinians to weeds.

Now, you could argue that in that column, he says he means it metaphorically, but then I'd just need to remind you that the bedbug tweet was also explicitly metaphorical.

So, if you're following along at home, Stephens -- who insists that people are way too easily offended these days, and complains how the kids these days need to suck it up and not get so damn offended -- got ridiculously offended after he misread a very mild joke where his name was a punchline. A joke, I should remind you, that almost no one saw. He then took it upon himself to email the joker, and cc his boss -- whining about the lack of civility in a passive aggressive manner that seemed obviously designed to use his status to punish the professor. When that whole thing completely blew up in his face, rather than recognizing how all this went wrong, Stephens doubled down, concocted a ludicrous backstory about how Nazis called people bedbugs (which he had to search for to find just one example that doesn't even show that they did) and put it into a nonsense NY Times opinion piece whose only real job is to suggest that calling him a bedbug (which Karpf didn't actually do) was a prelude to ethnic genocide... all while forgetting that he, himself, had called Palestinians mosquitos and weeds.

One would hope this ends here. But I fear that it will not.

Filed Under: bedbugs, bret stephens, david karpf, godwin's law, professionally offended, streisand effect
Companies: ny times

NY Times Goes Off On Amazon Because Some People Are Publishing Fake George Orwell Books

from the but,-hey,-what-about-that-public-domain dept

David Streitfeld is a NY Times reporter who, among other things, covers Amazon. As far as I can tell, he has never written about Amazon in an article where he doesn't present things in the worst, most distorted anti-Amazon light. It's gotten to the point where I generally just won't bother with a Times article about Amazon if it's by Streitfeld, because it's guaranteed to be misleading. Somehow, however, I made it through most of this recent article about counterfeit George Orwell books on Amazon before realizing it was yet another Streitfeld hit piece. The article itself is kind of interesting: there are a bunch of folks attempting to sell unofficial George Orwell books on Amazon, and sometimes they're garbage.

What I find odd, is that while the article admits that many are published in India, where Orwell's works are in the public domain, the article makes no mention of the odd copyright situation in the US and UK, where Orwell's books all should be in the public domain based on the copyright deal that was made with Orwell when he wrote the books. Under those terms, all of Orwell's books -- including Animal Farm (1945) and Nineteen Eighty-Four (1949) -- should have entered the public domain years ago, meaning that there would be a robust market for legitimate copies of those works.

Streitfeld also complains about some attempts to "improve" on Orwell.

Most of the distorted texts are likely due to ignorance and sloppiness but at their most radical the books try to improve Orwell, as with the unauthorized “high school edition” of his 1933 memoir. The editing was credited to a Moira Propreat. She could not be reached for comment; in fact, her existence could not be verified.

“Down and Out” is an unflinching look at brutal behavior among starving people, which makes Ms. Propreat’s self-appointed task of rendering the book “more palatable” rather quixotic.

Streitfeld is rather subtle in mocking "Moira Propreat" ("more appropriate") but misses the point again. If those works were in the public domain, as intended, then there would be plenty of opportunities for people to update, remix, change, edit, annotate and do whatever they wanted with Orwell's works. And that would, undoubtedly lead to a bursting of creativity. While it's more limited here -- because it's locked down by copyright -- it's little surprise that what few books have made it out there are of dubious quality and value.

But how is that Amazon's fault as opposed to copyright for limiting the ability of more thorough individuals and companies to do this kind of work? It's also unclear why Amazon is getting the blame for selling badly edited books. Going back decades to Smith v. California, the Supreme Court has held you can't hold bookseller's liable for the content of the books. But Streitfeld ignores all of that and seems to suggest that this is all Amazon's fault, because Amazon is Amazon. He argues -- taking talking points directly from the Authors Guild -- that Amazon won't vet these books because it will 'drag profits down," leaving out the fact that it's impossible to catch all such things.

Yes, there's a legitimate argument that buyers of such books may be annoyed and confused by a less than accurate copy of an Orwell book, but to blame Amazon, and to ignore the copyright issues that brought us here, is a really weird choice, but if it involves blaming Amazon for some other issue, it's the choice the NY Times and Streitfeld always seem to make.

Filed Under: 1984, animal farm, copyright, david streitfeld, george orwell, public domain, remix
Companies: amazon, ny times

Shut Up David Boies, You Hypocritical, Censorial Oaf

from the don't-even-start dept

NPR has an incredible story about the media and Jeffrey Epstein. You should read the whole damn thing, because no summary here will do it justice. It covers multiple attempts by various large media organizations, including Vanity Fair, the NY Times and ABC to report on Jeffrey Epstein over the years, and how Epstein, intimidated, coaxed and even potentially bought off reporters to get more favorable coverage, or to kill stories outright. It's horrific and awful and everything along those lines. Go read it.

But, I'm going to focus on the fact that NPR quotes David Boies throughout the piece, acting horrified at how the media fell down on this. He's 100% correct about that, but he's the wrong fucking messenger given his own long history doing pretty much exactly what Epstein is reported to have done regarding the media in this particular piece. Boies is defending some of Epstein's victims, and good on him to be a strong advocate for his clients and against Epstein. But this quote is not one David Boies should be making:

"We count on the press to uncover problems, not merely to report on when problems have been prosecuted and when people have been indicted, but to uncover problems before they reach that stage," says David Boies, an attorney for several of Epstein's accusers. "And here you had a terrible problem. A horrific series of abuses."

Shall we review some of the record on David Boies and his attempts to intimidate and silence the press when they tried to "uncover problems before they reach that stage"? As you may recall, one of David Boies' big clients was... Harvey Weinstein. And, as Ronan Farrow at the New Yorker reported in great detail, Boies and his firm seemed to work very, very hard to stop anyone from revealing Weinstein's problems with multiple women.

That article covers how Weinstein hired a bunch of former Mossad and Israeli intelligence officers who had set up a firm called "Black Cube" to try to "extract information" on various Weinstein accusers.

Two private investigators from Black Cube, using false identities, met with the actress Rose McGowan, who eventually publicly accused Weinstein of rape, to extract information from her. One of the investigators pretended to be a women’s-rights advocate and secretly recorded at least four meetings with McGowan. The same operative, using a different false identity and implying that she had an allegation against Weinstein, met twice with a journalist to find out which women were talking to the press. In other cases, journalists directed by Weinstein or the private investigators interviewed women and reported back the details.

The explicit goal of the investigations, laid out in one contract with Black Cube, signed in July, was to stop the publication of the abuse allegations against Weinstein that eventually emerged in the New York Times and The New Yorker. Over the course of a year, Weinstein had the agencies “target,” or collect information on, dozens of individuals, and compile psychological profiles that sometimes focussed on their personal or sexual histories. Weinstein monitored the progress of the investigations personally. He also enlisted former employees from his film enterprises to join in the effort, collecting names and placing calls that, according to some sources who received them, felt intimidating.

You might ask, what does that have to do with Boies? Well, according to the New Yorker, it was Boies who hired Black Cube and signed the contract with them to run this operation to silence Weinstein accusers and block negative stories. He even did this despite a clear conflict of interest (he was trying to suppress a NY Times story while representing the NY Times in a separate case):

In some cases, the investigative effort was run through Weinstein’s lawyers, including David Boies, a celebrated attorney who represented Al Gore in the 2000 Presidential-election dispute and argued for marriage equality before the U.S. Supreme Court. Boies personally signed the contract directing Black Cube to attempt to uncover information that would stop the publication of a Times story about Weinstein’s abuses, while his firm was also representing the Times, including in a libel case.

And that's not all. Remember the big Theranos scandal and mess, which turned out to be a pretty massive fraud? That only came to light thanks to some whistleblowers at the company who went to a reporter at the Wall Street Journal with their concerns. And can you guess what happened there, too? Yup. In a big Vanity Fair article we learned about an incredibly aggressive campaign to silence the whistleblowers. There's some irony here given that, in this new NPR piece, Boies is criticizing Vanity Fair as one of the publications that "failed" to publish information about Epstein's crimes. But the Vanity Fair piece shows that Boies was heavily involved in the campaign to discredit and silence the whistleblowers:

Shortly after reading the article, Carreyrou started investigating Theranos’s medical practices. As it turned out, there was an underside to Theranos’s story that had not been told—one that involved questionable lab procedures and results, among other things. Soon after Carreyrou began his reporting, David Boies, the superstar lawyer—and Theranos board member—who had taken on Bill Gates in the 1990s and represented Al Gore during the 2000 Florida recount case, visited the Journal newsroom for a five-hour meeting. Boies subsequently returned to the Journal to meet with the paper’s editor in chief, Gerard Baker.

It also notes very threatening letters from Boies' firms to multiple whistleblowers at the company, claiming imminent legal action merely for talking to reporters:

Meanwhile, Theranos had its lawyers send a letter to Rochelle Gibbons’s attorney, threatening legal action for talking to a reporter. “It has been the Company’s desire not to pursue legal action against Mrs. Gibbons,” a lawyer for Boies, Schiller & Flexner wrote. “Unless she immediately ceases these actions, she will leave the Company no other option but to pursue litigation to definitively put an end [to] these actions once and for all.” Others who spoke to the Journal were met with similar threats.

Rochelle Gibbons, if you haven't read the story, was the wife of a Theranos scientist who had tried to whistleblow within the company, saying the technology didn't work, and had protested internally the fact that Elizabeth Holmes had publicly announced that the tech worked and that they'd be opening "Theranos Wellness Centers" at Walgreens. As he kept talking internally, he was ordered to go meet with Holmes. Fearing he was about to be fired, he tried to take his own life, and died a week later in the hospital. This leads to the following:

When Rochelle called Holmes’s office to explain what had happened, the secretary was devastated and offered her sincere condolences. She told Rochelle Gibbons that she would let Holmes know immediately. But a few hours later, rather than a condolence message from Holmes, Rochelle instead received a phone call from someone at Theranos demanding that she immediately return any and all confidential Theranos property.

The report also notes that Elizabeth Holmes' two day "war room" strategy to figure out how to deal with this reporting exposing the corporate fraud involved multiple "lawyers from Boies, Schiller & Flexner." It does not say that Boies himself was in that room, but given that he wasn't just a lawyer for them, but a member of the board, it would not be surprising to find out that he was a key strategist in that meeting.

And that's not all. While perhaps not nearly as serious as efforts to kill stories about Harvey Weinstein's accusers or Theranos whistleblowers, Boies also personally sent a bunch of totally bogus, censorial letters to basically every publication that wrote about the contents of the hacked Sony Pictures emails. He even sent one to me. The letter, ridiculously, demands that publications not write about the contents of those emails to "help [protect] the First Amendment." Convincing news organizations not to report on news is not protecting the First Amendment, David.

So, yes, Boies is right that it's a travesty that Epstein was able to convince powerful media organizations not to run stories exposing Epstein's misdeeds, but for Boies of all people to be bitching about that is particularly rich, given his own well-documented efforts to do similar things.

Filed Under: david boies, elizabeth holmes, free press, harvey weinstein, jeffrey epstein, stifling free press
Companies: abc, ny times, sony pictures, theranos, vanity fair

Judge Dismisses Sheriff Joe Arpaio's Defamation Lawsuit Against The New York Times

from the next-time,-bring-facts,-rather-than-a-stunt-lawyer dept

Attorney Larry Klayman is building himself quite the portfolio of high-profile losses. He's well on his way to seeing his lawsuit on behalf of Judge Roy Moore tossed by an irritated court. His lawsuit against social media companies for their banning of noted tire slash expert Laura Loomer has already been dismissed.

Well on his way to having his law license suspended, Klayman has just seen another one of his ridiculous lawsuits tossed by a federal court. [h/t Adam Steinbaugh]

This one claimed three publications -- including the New York Times -- besmirched the previously-unsullied reputation of (ex) Sheriff Joe Arpaio, preventing him from successfully running for Senator.

Reciting the litany of terrible things Arpaio had done over his career, the New York Times pointed out Arpaio is pretty much defamation-proof. Even though the Times screwed up by calling him a convicted felon rather than a convicted misdemeanant, everything else written about him was true or protected opinion.

The court points out Arpaio's Klayman-authored complaint is a skeleton partially garbed in useless invective. The decision [PDF] is concise, running only 11 pages, but it still provides enough space to completely dismantle the former sheriff's arguments.

Even with the court siding with the plaintiff at this stage of the pleadings, there's not enough in Arpaio's complaint to push this past the NYT's motion to dismiss. When you come to court, you need to bring facts. That's not exactly Klayman's strong suit.

Plaintiff’s Complaint comes nowhere close to pleading sufficient facts that plausibly establish “actual malice.” Indeed, Plaintiff pleads no facts at all. Instead, throughout his Complaint, he does no more than recite the applicable legal standard.

The court points out that copy-pasting legal definitions into a lawsuit and appending the plaintiff's name to them does not actually create actionable torts out of thin air. Nor does claiming the court cannot dismiss a lawsuit until the plaintiff thinks it's OK for the lawsuit to be dismissed.

[P]laintiff argues that the issue of malice “is a question of fact that cannot properly be resolved on a motion to dismiss.” See Pl.’s Opp’n at 10. Not so. The Supreme Court in Iqbal expressly held that the pleading of malice is subject to the “strictures of Rule 8.” 556 U.S. at 686–87. Thus, a plaintiff that “plead[s] the bare elements of his cause of action . . . [cannot] expect his complaint to survive a motion to dismiss.” Id. Courts in this District have dismissed defamation claims for failing to plead sufficient facts supporting the element of actual malice

It also points out that material better suited for heated blog posts shouldn't be used in place of actual arguments.

Plaintiff argues that actual malice can be inferred because “The New York Times’ political partisanship and liberal bias know no reasonable bounds . . .” Pl.’s Opp’n at 12. But Plaintiff offers no facts in his Complaint to support this proposition. The three news articles that he cites in his opposition brief do not demonstrate the type of animus that Plaintiff claims. See id. at 15 n.3. In any event, even if The New York Times takes positions that could be perceived as unfavorably disposed towards Plaintiff, the D.C. Circuit has observed that “[i]t would be sadly ironic for judges in our adversarial system to conclude . . . that the mere taking of an adversarial stance is antithetical to the truthful presentation of facts.” Tavoulareas v. Piro, 817 F.2d 762, 795 (D.C. Cir. 1987). Plaintiff’s unadorned claim of animus and bias cannot save his deficient pleading.

Also: saying mean things about people is not defamation, nor is it evidence of actual malice.

Plaintiff’s objection to certain words that he considers incendiary—such as “sadist,” “medieval,” “bare-knuckled,” “disgrace,” and “true American villain”—is misplaced. They are too imprecise or subjective to be verifiably false facts.

Yep, still protected opinion -- something Arpaio might have figured out by reading the article before suing about it.

That these words appeared in a column in the Opinions section of The New York Times only underscores that point.

Because Arpaio can't show actual malice, his claims of false light fail as well. So do his claims of tortious interference for much the same reason: the plaintiff needs to show, not tell. Nothing in the lawsuit provides a basis for the interference claims, which appear to be mostly boilerplate recitation of legal standards.

This will certainly be appealed if Klayman can do it before he's disbarred. But it won't change the outcome. What it will do, however, is cost the defendants more money. The NYT filed an anti-SLAPP motion but the court rejects it, stating its earlier opinion in another defamation case, where it decided the federal court in DC cannot apply the district's anti-SLAPP law. Add this one to the pile of reasons why Congress needs to enact a federal anti-SLAPP law.

Filed Under: 1st amendment, defamation, free speech, joe arpaio, larry klayman
Companies: ny times

NY Times Publishes A Second, Blatantly Incorrect, Trashing Of Section 230, A Day After Its First Incorrect Article

from the what-is-wrong-with-the-times? dept

Last week we wrote about the NY Times having to issue a whopper of a correction on a giant front page of the Business Section, totally false claim, saying that Section 230 "protected hate speech" online -- which they later had to edit to note that it was actually the 1st Amendment that protected such speech (and the article leaves out that it's actually Section 230 that allows websites to remove hate speech). Coming from a paper that, just weeks earlier, had published an editorial mocking politicians for getting 230 wrong, this was kind of embarrassing.

Even more embarrassing, though, was the day after the NY Times had to totally correct that false article, they ran another blatantly wrong op-ed about Section 230, this one published by Jonathan Taplin, who two years previously had published another op-ed at the NY Times that completely fabricated a bunch of blatant lies about how YouTube and Google operate. You would think that would be enough for the NY Times to maybe think twice about having him publish another op-ed, especially about Section 230 a day after the paper got called out for getting the Constitution wrong. But, nope. Taplin got to publish his anti-Section 230 op ed with no problems, until the NY Times felt the need to issue a correction on that one too.

An earlier version of this article misstated the law containing a provision providing safe haven to social media platforms. It is the Communications Decency Act, not the Digital Millennium Copyright Act.

Taplin, if you don't recall, is an old-school movie and music producer, who a few years ago started getting renewed attention by blaming Google for basically all the ills in the world. He constantly popped up with facts-optional arguments, that seem to get lots of attention because attacking Google is the in-thing, whether or not it's based on any facts.

Here, again, Taplin gets basically all the facts wrong. While he purports to be an experts on copyright law (a dubious claim in itself), since everyone's focused on Section 230, he decided to jump in and pretend to be an expert on that (though, as the correction shows, he confused CDA 230's protections with the DMCA 512 safe harbors, which are quite different). Even post correction, Taplin's article is just... hilariously wrong.

After the El Paso massacre, the 8chan website briefly went offline when Cloudflare, the network provider, banned it. But it was only a matter of time before someone else agreed to support the site: By Tuesday morning, 8chan was back online, spewing a toxic mix of hatred, violence and QAnon conspiracies. Message boards like 8chan aren’t the only place where these things are spread: In March, when there were two mass shootings at mosques in Christchurch, New Zealand, the shootings were live-streamed on Facebook and then viewed millions of times on YouTube.

Of course, what Taplin leaves out is the rather Herculean efforts that Facebook and YouTube went through to block that video -- while also trying not to block legitimate news reports about the shooting. And you know what made that effort possible in the first place? Section 230 of the Communications Decency Act. But, to Taplin, Section 230 is to blame.

Though it may seem that there is little that platforms and politicians can do to stop the spread of online hatred, a great deal could be accomplished with one simple tweak to the existing Communications Decency Act: revise the safe harbor provisions of the law.

Well, here's the thing: The Communications Decency Act does not have any safe harbor provisions. This is the fundamental problem in the NY Times allowing Taplin to write his facts-optional nonsense in which he confused the DMCA 512 (which does have safe harbors) with CDA 230 (which does not) -- and then pretending that merely replacing DMCA 512 with CDA 230 fixes things. A safe harbor, such as what's found in the DMCA, says that if you take certain actions, you are protected. CDA 230 requires no such thing -- it just says that internet service providers cannot be held liable for third party content or for moderation choices.

And, again, it's the protections of 230 that made the actions that Facebook and YouTube took in response to the Christchurch shooting video possible in the first place. But, Taplin's got a beef with these companies, and he's going to scratch that itch, no matter how nonsensical.

A safe harbor provision of a statute or a regulation specifies that certain conduct will be deemed not to violate a given rule. For social media platforms like 8chan, Facebook and YouTube, the most important of these is Section 230 of the Communications Decency Act, which states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

That's not a safe harbor.

the second one should be: When Johnson & Johnson removed all the Tylenol from American stores in the wake of a poisoning scandal, it did so because of the liability it would face if anyone got hurt. But 8chan, Reddit, Facebook and YouTube are totally protected from being sued for content on their networks because of this unique set of laws created at the beginning of the internet.

What a weird and dumb analogy. Johnson & Johnson faced liability because its products were poisoned. Products where it controlled the manufacturing and the supply chain. That is not the case for the service providers Taplin names. Besides, as noted in the correction to the other NY Times article, the fucking 1st Amendment protects that content. But, of course, Taplin can't actually admit that he's really trying to blame the 1st Amendment.

The safe harbor laws were created for what is known as passive (or neutral) intermediaries.

This is a lie. This is such a lie that the NY Times itself called it out as a lie just a couple weeks ago. The safe harbor was not created for "passive (or neutral) intermediaries." Literally both of the authors of CDA 230 -- Chris Cox and Ron Wyden -- have directly said this is not true. Section 230 was created in direct response to the Stratton Oakmont v. Prodigy ruling, in which a judge said that because Prodigy heavily moderated its forums to keep them "family friendly," it took on liability for any content it left up. Cox and Wyden have both made it clear that the entire point of 230 was to enable sites to moderate content however they saw fit, to encourage the ability to create "family friendly" environments online.

In other words, it was created, explicitly, to enable non-passive intermediaries. Taplin is lying. I'd say he could just be misinformed, but this information has been out there long enough, and Taplin has been so wrong, so often, that it's difficult to see how he could be merely misinformed. At some point you have to wonder if these constant misrepresentations are intentional.

Verizon, for example, is a passive intermediary platform: It makes no attempt to edit or alter the bits flowing through its fiber optic cables. Facebook and YouTube, however, are active intermediaries; they present you with content different from what they present to me. They filter pornography and jihadist videos off their networks using artificial intelligence. As such, they should not be shielded from liability by safe harbor laws in the same way that Verizon is shielded.

This is also bizarre. Given what we just said above, without a CDA 230, then Facebook and YouTube would be incentivized not to filter pornography or jihadist videos. This entire piece is internally inconsistent. Taplin first says that because of 230 these sites don't have incentive to moderate (even though they do) and then says that because they moderate, they should lose the protections that make it possible to moderate.

How the hell did the NY Times think it was appropriate to publish this utter nonsense?

Even though Facebook was able to use A.I. to block 90 percent of the Christchurch streams after it identified the video, last year Mark Zuckerberg testified to Congress that it might take five to 10 years to perfect these tools. But society cannot wait five to 10 years — we need to stop these videos now, and banning toxic content must become the highest priority at 8chan, Reddit, Facebook and YouTube.

Dude. In the previous paragraph you argued that these sites shouldn't get 230 protections because they moderate. Now you're saying that they shouldn't get them unless they automatically stop all bad stuff? From paragraph to paragraph the argument changes, unless you consider "Facebook and YouTube are evil" is the only argument Taplin can make.

Some may argue that deciding what counts as toxic video content is a slippery slope toward censorship. However, for the past 75 years, since the first television broadcasts, the Federal Communications Commission has been able to regulate offensive content on television.

This is not a serious take. This is something someone with literally zero knowledge of how any of this works would make. It does not deserve to be placed on the op-ed pages of the NY Times and is a total embarrassment. First off, the FCC only has a mandate over the airwaves, because they are a (somewhat) limited resource, that the US government handed out for the public benefit -- and, as part of that exchange, there was a promise that those who received that spectrum, would not use it for obscenity. Second, the idea that the FCC has ever been able to successfully regulate "offensive" content on TV is laughable and shows a startling lack of understanding of the history of the FCC and its attempts to respond to claims of offensive content on TV. Third, there are strong arguments that the FCC's determinations on offensive content do, in fact, violate the 1st Amendment, and are very much part of a slippery slope towards censorship.

Finally, it's quite stunning to see a Hollywood producer coming out and supporting the FCC's attempts to regulate content on the airwaves. That used to be the kind of thing that Hollywood -- back decades ago when it actually was a force for free speech -- used to fight against.

I believe we can all agree that mass murder, faked videos and pornography should not be broadcast — not by cable news providers, and certainly not by Facebook and YouTube.

Then you better get to work repealing the 1st Amendment. Because that's what protects this content.

Since broadcasters do not have the protection of “safe harbor,” they engage in a certain level of self-regulation, to avoid being sued.

No, that's not what's going on at all. Broadcasters pick and choose what limited content goes online, because it's not an open platform that anyone can post to. They self-regulate because they are aiming for whatever content they put out to reach a mass audience because they can only produce so much content. It's not because they're afraid of the FCC or because they don't have CDA 230 to protect them.

And there is no reason to believe that the largest corporations in the world — Google, Apple, Facebook and Amazon — would behave differently from CBS, Fox, NBC or ABC.

Other than that this is an apples to orangutans comparison. CBS, Fox, NBC and ABC pick and choose exactly what content they broadcast. They have 24 hours a day to fill, and that's it. The other services are open platforms where anyone can post anything. And that's an entirely different situation. That Taplin seems to think these are comparable frankly does not speak well of Taplin's understanding of anything related to the internet.

In the past, Google and Facebook have shown that they can pivot quickly and that they already have the technology to keep certain content off their platforms. There is almost no pornography on Facebook or YouTube because of sophisticated tools that search for and prevent such uploads. And since 2017, both companies have actively removed jihadist videos. But it took the right incentives to get them to do both of those things.

Note that it did not take a change to CDA 230 to make Facebook and YouTube decide to remove jihadist videos. He's also wrong. This started way before 2017. Also, in taking down "jihadist videos," Facebook and YouTube have also been deleting and hiding evidence of war crimes. So, hey, if Taplin's cool with deleting evidence of war crimes, good on him. But some of us can recognize that there are serious tradeoffs to decisions that some people erroneously think are easy calls.

Changing the safe harbor laws so that social media platforms are held accountable for the content their users post would incentivize Facebook and YouTube to take things like the deep-fake video of Nancy Pelosi and the Christchurch shooting videos more seriously.

Except that both of those videos are protected by the 1st Amendment. So, no, it wouldn't create liability for those platforms. Indeed, creating such liability would create incentives for platforms to bury their heads and not learn of such videos, a la the Stratton Oakmont ruling.

In the wake of the Christchurch shootings, Prime Minister Jacinda Ardern of New Zealand remarked about the social networks: “They are the publisher, not the postman. There cannot be a case of all profit and no responsibility.”

A quip is not reality. Again, even Taplin admitted in his piece that Facebook blocked the vast majority of those videos. To then pretend that they don't block these videos because of a profit motive is... nonsensical.

In the end though, Taplin is going to Taplin. The real question is why would the NY Times allow this blatant joke of an op-ed to be published in the first place? Especially after Taplin's previous op-ed was filled with similar nonsense, which it got called out for, and the Times itself got mocked for misunderstanding 230 just a week after its own editorial pages mocked politicians for misunderstanding 230? The NY Times should admit that publishing Taplin was a mistake. But it won't, because it's the NY Times.

Filed Under: cda 230, dmca 512, jonathan taplin, misleading, section 230
Companies: ny times

NY Times Publishes Laughable Propaganda To Argue Google Owes Newspapers Like Itself Free Money

from the all-the-propaganda-that-fits-to-pad-our-bottom-line dept

Earlier this week, I posted about a silly new organization that claims it's going to "save journalism" mainly by whining about how evil Google and Facebook are. As I noted in that piece, even if you believe Google and Facebook are evil, it's not clear how whining about them being evil provides any new journalists jobs. But the news industry as a whole has been on this weird "blame someone else" kick for way too long. The "News Media Alliance" (formerly the Newspaper Association of America) has been on a weird anti-tech protectionist kick for years now, and on Monday published a "study" claiming that Google made $4.7 billion from news -- a number that was then trumpeted loudly by the NY Times, which just happens to be one of the larger members of the News Media Alliance.

There's just one tiny problem. The "study" is no study at all and basically everyone in the media business is laughing at the NY Times for publishing such a ridiculously bogus study without highlighting how bogus it was. The $4.7 billion is not based on any careful research. It's based on one off-hand comment from over a decade ago by an exec who hasn't been at Google in years, and then extrapolated forward. Really.

That study relies on a public comment then–Google executive Marissa Mayer made at a media event in 2008, when she estimated that Google News brought in $100 million in revenue. The NMA report calculates what the same proportion of the company’s revenue would be today, then further inflates this figure based on the fact that news consumption via Google’s main search is 6 times larger than via Google News (according to the NMA’s estimate of referral traffic to newspaper websites).

This is not what any sensible person would call a "sound" methodology. Oh, and I almost forgot the kicker:

...the News Media Alliance cautioned that its estimate for Google’s income was conservative

The NY Times also kinda skimmed over the purposeful timing of this study's release. The News Media Alliance has been pushing for sometime for a special antitrust exemption to allow big news orgs to collude to try to force more money out of Google and Facebook, and the study was released just a day before a Congressional hearing on the topic. Most normal reporters would recognize that, maybe (just maybe) there was an ulterior motive in releasing this "report" with such a flimsy statistic. But the Times reported it as if it was fact.

There may be plenty of reasons to distrust Google and Facebook and their role regarding journalism, but this report is not any of that. Google doesn't even put ads on most of Google News, but instead pushes visitors off to the websites of news orgs. If those news orgs are failing to monetize that traffic, it seems pretty ridiculous to blame google for that and demand more money via collusive efforts.

As Jeff Jarvis notes in his own response to the NYT's piece, if the publishers want to point the blame finger, they might want to start by turning it back on themselves:

The problem has long been that publishers aren’t competent at exploiting the full value of these clicks by creating meaningful and valuable ongoing relationships with the people sent their way. So what does Google do? It tries to help publishers by, for example, starting a subscription service that drives more readers to easily subscribe — and join and contribute — to news sites directly from Google pages. The NMA study cites that subscription service as an example of Google emphasizing news and by implication exploiting publishers. It is the opposite. Google started the subscription service because publishers begged for it — I was in the room when they did — and Google listened. The same goes for most every product change the study lists in which Google emphasizes news more. That helps publishers. The study then uses ridiculously limited data (including, crucially, an offhand and often disputed remark 10 years ago by a then-exec at Google about the conceptual value of news) to make leaps over logic to argue that news is important on its services and thus Google owes news publishers a cut of its revenue (which Google gains by offering publishers’ former customers, advertisers, a better deal; it’s called competition). By this logic, Instagram should be buying cat food for every kitty in the land and Reddit owes a fortune to conspiracy theorists.

The real problem here is news publishers’ dogged refusal to understand how the internet has changed their world, throwing the paradigm they understood into the grinder.

Yes, the world has changed. But the NMA seems to think that the government should now just force the internet companies to hand over money after their own members spent years twiddling their thumbs and squandering any attempt to build up loyal followings and sustainable business models. It's not easy to keep a media business sustainable these days, but so much of it has to do with those companies refusing to recognize how the internet was changing the business, and how to take advantage of those changes.

Filed Under: collusion, internet, news, newspapers
Companies: google, news media alliance, ny times