Apple's 'Do Not Track' Button Is Privacy Theater

from the privacy-theater-incorporated dept

Earlier this year Apple received ample coverage about how the company was making privacy easier for its customers by introducing a new, simple, tracking opt-out button for users as part of an iOS 14.5 update. Early press reports heavily hyped the concept, which purportedly gave consumers control of which apps were able to collect and monetize user data or track user behavior across the internet. Advertisers (most notably Facebook) cried like a disappointed toddler at Christmas, given the obvious fact that giving users more control over data collection and monetization, means less money for them.

By September researchers had begun to notice that Apple's opt-out system was somewhat performative anyway. The underlying system only really blocked app makers from accessing one bit of data: your phone's ID for Advertisers, or IDFA. There were numerous ways for app makers to track users anyway, so they quickly got to work doing exactly that, collecting information on everything from your IP address and battery charge and volume levels, to remaining device storage, metrics that can be helpful in building personalized profiles of each and every Apple user.

Privacy advocates and the press noted how this was all giving Apple users a false sense of security without really fixing much. Privacy experts and press outlets also repeatedly informed Apple this was happening, but nothing changed. In fact, the Financial Times notes that six months after the feature was introduced, Apple has further softened its stance on the whole effort:

"But seven months later, companies including Snap and Facebook have been allowed to keep sharing user-level signals from iPhones, as long as that data is anonymised and aggregated rather than tied to specific user profiles.

Here's the thing. There's been just an absolute torrent of studies showing how "anonymizing" data is a gibberish term. It only takes a few additional snippets of data to identify "anonymized" users, yet the term is still thrown around by companies as a sort of "get out of jail free" card when it comes to not respecting user privacy. There's an absolute ocean of data floating around the data broker space that comes from apps, OS makers, hardware vendors, and telecoms, and "anonymizing" data doesn't really stop any of them from building detailed profiles on you.

Apple's opt-out button is largely decorative, helping the company brand itself as hyper privacy conscious without actually doing the heavy lifting required of such a shift:

"Lockdown Privacy, an app that blocks ad trackers, has called Apple’s policy “functionally useless in stopping third-party tracking”. It performed a variety of tests on top apps and observed that personal data and device information is still “being sent to trackers in almost all cases."

A lot of folks spend a lot of time trying to tap dance around a fundamental truth: any effort to give consumers more control and clear insight over what's being collected or sold reduces revenues by billions of dollars annually, even if only a fraction of existing users take advantage. And nobody with their face buried deep in the data monetization trough wants that. It's why it's 2021 and the U.S. still doesn't even have a basic, clear privacy law for the internet era. Not even a super clean one mandating basic transparency requirements and working opt-out tools.

So what we get instead is a lot of gibberish and privacy theater by a lot of folks who don't want to take even a tiny hit in revenues in exchange for healthier markets and happier users.

We also get just an endless parade of semantics, like ISP claims they "don't sell access to your data" (no, they just give massive "anonymized" datasets away for free as part of a nebulous, broader arrangement they do get paid for). We get tracking opt-out tools that don't actually opt you out of tracking, or opt you back in any time changes are made. And we get endless proclamations about how everybody supports codifying federal privacy laws from companies that immediately turn around and spend millions of dollars lobbying to ensure even a basic privacy law never sees the light of day.

At some point this combination of feckless oversight, rampant overcollection of data, minimal transparency, and repeated failure to adhere to the basics on data security will result in a privacy scandal that makes the last fives years' worth of scandals look like a grade school picnic. When that happens, we might finally see some traction on at least a basic law that mandates transparency, opt-out tools that actually work, and penalties for lax security. Until that momentum shift happens, the majority of "privacy reform" efforts are going to have a high ratio of meaningless song and dance.

Filed Under: apps, data, do not track, ios, opt-in, opt-out, privacy
Companies: apple, facebook, snap

Why The Ninth Circuit's Decision In Lemmon V. Snap Is Wrong On Section 230 And Bad For Online Speech

from the another-hard-case dept

Foes of Section 230 are always happy to see a case where a court denies a platform its protection. What's alarming about Lemmon v. Snap is how comfortable so many of the statute's frequent defenders seem to be with the Ninth Circuit overruling the district court to deny Snapchat this defense. They mistakenly believe that this case raises a form of liability Section 230 was never intended to reach. On the contrary: the entire theory of the case is predicated on the idea that Snapchat let people talk about something they were doing. This expressive conduct is at the heart of what Section 230 was intended to protect, and denying the statute's protection here invites exactly the sort of harm to expression that the law was passed to prevent.

The trouble with this case, like so many other cases with horrible facts, is that it can be hard for courts to see that bigger picture. As we wrote in an amicus brief in the Armslist case, which was another case involving Section 230 with nightmarish facts obscuring the important speech issues in play:

"Tragic events like the one at the heart of this case can often challenge the proper adjudication of litigation brought against Internet platforms. Justice would seem to call for a remedy, and if it appears that some twenty-year old federal statute is all that stands between a worthy plaintiff and a remedy, it can be tempting for courts to ignore it in order to find a way to grant that relief."

Here some teenagers were killed in a horrific high-speed car crash, and of course the tragedy of the situation creates an enormous temptation to find someone to blame. But while we can be sympathetic to the court's instinct, we can't suborn the facile reasoning it employed to look past the speech issues in play because acknowledging them would have interfered with the conclusion the court was determined to reach. Especially because at one point it even recognized that this was a case about user speech, before continuing on with an analysis that ignored its import:

Shortly before the crash, Landen opened Snapchat, a smartphone application, to document how fast the boys were going. [p.5] (emphasis added)

This sentence, noting that the boys were trying to document how fast they were going, captures the crux of the case: that the users were using the service to express themselves, albeit in a way that was harmful. But that's what Section 230 is built for, to insulate service providers from liability when people use their services to express themselves in harmful ways because, let's face it, people do it all the time. The court here wants us to believe that this case is somehow different from the sort of matter where Section 230 would apply and that this "negligent design" claim involves a sort of harm that Section 230 was never intended to apply to. Unfortunately it's not a view supported by the statutory text or the majority of precedent, and for good reason because, as explained below, it would eviscerate Section 230's critical protection for everyone.

Like it had done in the Homeaway case, the court repeatedly tried to split an invisible hair to pretend it wasn't trying to impose liability arising out of the users' own speech. [See, e.g., p. 10, misapplying Barnes v. Yahoo]. Of course, a claim that there was a negligent design of a service for facilitating expression is inherently premised on the idea that there was a problem with the resulting expression. And just because the case was not about a specific form of legal liability manifest in their users' speech did not put it outside of Section 230. Section 230 is a purposefully broadly-stated law ("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."), and here the court wants the platform to take responsibility for how its users used its services to express themselves. [p. 15, misapplying the Roommates.com case].

Section 230 also covers everything that could be wrong with expression unless the thing wrong with it happens to fall into one of the few exceptions the statute enumerates: it involves an intellectual property right, violates federal criminal law, or otherwise implicates FOSTA. None of those exceptions apply here, and, in fact, in the same section of the law where these few exceptions are set forth there is also a pre-emption provision explicitly barring any state law from becoming the basis of any new exceptions. Which, with this decision giving the go-ahead to a state law-based tort claim of "negligent design," is what the Ninth Circuit has now caused to happen.

It hurts online speech if courts can carve out new exceptions. If judges can ever post hoc look at a situation where expressive activity has led to harm and decide the degree of harm warrants stripping service providers of their Section 230 protection, then there is basically no point in having Section 230 on the books. If platforms have to litigate over whether it protects them, then it doesn't really matter whether it does or not because they'll already have lost out on so much of the value the protection was supposed to afford them to make it possible for them to facilitate others' expression in the first place. The inevitable consequence of this functional loss of statutory protection is that there will be fewer service providers available to facilitate as much user expression, if any at all.

But even if there were some limiting principle that could be derived from this case to constrain courts from inventing any other new exceptions, just having this particular "negligent design" one will still harm plenty of speech. To begin with, one troubling aspect the decision is that it is not particularly coherent, and one area of confusion relates to what it actually thinks is the negligent design. [see, e.g., p. 15]. The court spends time complaining about how Snapchat somehow deliberately encourages users to drive at unsafe speeds, even though the court itself acknowledged that while Snapchat apparently rewards users with "trophies, streaks, and social recognitions" to encourage them to keep using their service [p. 5], it "does not tell its users how to earn these various achievements" [p. 5], and it is a leap to say that Snap is somehow wrongfully encouraging users to do anything when it is not actually saying anything of the kind. [See p. 6 ("Many of Snapchat’s users suspect, if not actually 'believe,' that Snapchat will reward them for 'recording a 100-MPH or faster [s]nap' using the Speed Filter.")]. In fact, as the decision itself cites, Snapchat actually cautioned against reckless posting behavior. [See p. 6 with the screenshot including the text, "Don't snap and drive."] If the case were actually about Snap explicitly encouraging dangerous behavior ("Drive 100 mph and win a prize!") then there might legitimately be a claim predicated on the platform's own harmful speech, for which Section 230 wouldn't apply. But the record does not support this sort of theory, the theory of liability was predicated on a user's apparently harmful speech, and in any case the alleged encouragement wasn't really what the plaintiffs were charging was actually negligently designed anyway.

Instead, what was at issue was the "speed filter," a tool that helped users document how fast they were traveling. Unlike the district court, the Ninth Circuit could not seem to fathom that a tool that helped document speed could be used for anything other than unsafe purposes. But of course it can. Whether traveling at speed is dangerous depends entirely on context. A user in a plane could easily document traveling at significant speed perfectly safely, while a user on a bike documenting travel at a much slower speed could still be in tremendous peril. One reason we have Section 230 is because it is impossible for the service provider to effectively police all the uses of its platform, and even if it could, it would be unlikely to know whether the speeding was safe or not. But in denying Snapchat Section 230 protection with the presumption that such speech is always unsafe, the court has effectively decided that no one can ever document that they are traveling quickly, even in a safe way, because it is now too legally risky for the platform to give users the tools to do it.

Furthermore, if a platform could lose its Section 230 platform because the design of its services enabled speech that was harmful, it would eviscerate Section 230, because there are few, if any, whose design would not. For example, Twitter's design lets people post harmful expression. Perhaps one might argue it even encourages them to by making it so easy to post such garbage. Of course, Twitter also makes it easy to post things that are not harmful too, but the Ninth Circuit's decision here does not seem to care that a design eliciting user expression might be used for both good and bad ends. Per this decision, which asserts a state law-created "duty to design a reasonably safe product," [see p. 13, misapplying the Doe 14 v. Internet Brands case], even a product that meets the definition of an "interactive computer service" set forth in Section 230 (along with its pre-emption provision), if the design could be used to induce bad expression, then the platform no longer qualifies for Section 230's protection. But that would effectively mean that everyone could always plead around Section 230 because nearly every Section 230 case arises from someone having used the service in a harmful way the service enabled. It is unfortunate that the Ninth Circuit has now opened the door to such litigation, as the consequences stand to be chilling to all kinds of online speech and services Section 230 was designed to protect.

Filed Under: 9th circuit, intermediary liability, lemmon, negligence, product liability, section 230, speech, speed filter
Companies: snap

Smaller Internet Companies Say They're Open To 230 Reform... To Keep Facebook From Being The Only Voice In The Room

from the no-good-options dept

Earlier this fall, Facebook was (not surprisingly) the first big internet company to cave and to tell Congress that it was open to Section 230 reform. I say not surprisingly, because it's done this before. Facebook was the company that caved in and supported FOSTA, which was the first major reform of 230. We heard from multiple people who said that Facebook recognized that it could weather the storm much better than its smaller competitors.

Indeed, Facebook's executive team seems to have recognized that reforming 230 is a strong anti-competitive weapon. It weakens smaller competitors, making them ripe for buying out, and scares off investors from funding new upstarts. It still strikes me as incredible that the same people who are demanding we dismantle 230 are also calling for antitrust actions -- because those two things work in directly opposite ways. Undermining 230 will do serious harm to competition. But that's why Facebook is so eager to jump on board. The company already admits that it spends more than all of Twitter's revenue on content moderation. So, it's not really relying that much on 230 anyway.

And, of course, it's advocacy for FOSTA has already paid off. After FOSTA passed, a number of dating sites shut down... just in time for Facebook to launch its own dating site.

Of course, when Facebook caved on FOSTA, what happened was Congress announced that "tech" was on board -- pretending that Facebook's move suddenly meant every other internet company approved too (when the reality was that every other internet company was basically furious with Facebook).

So, this puts many other internet companies in an impossible position: if they continue to completely fight changing Section 230 (as they should), then Facebook becomes the only voice in any reform "negotiations." And, seeing how Congress handled this last time, it likely means that Facebook gets to shape the "reform" in a way that helps Facebook and harms everyone else. But, Congress, of course, will pretend that Facebook's blessing means the rest of the internet agrees as well.

The end result, then, is that smaller companies, which absolutely rely on Section 230, feel pressure to get into the negotiations as well. And that's why the NY Times now has a story saying that Snap, Reddit and TripAdvisor have told Congress they're willing to talk about reform options:

On Tuesday, a group of smaller companies — including Snap, Reddit and Tripadvisor — plan to say that they are open to discussing reforms, too.

This is disappointing, but understandable. All three companies have relied heavily on 230 in a variety of lawsuits over the years. Snap just recently needed 230's help to get out of a really silly lawsuit. And TripAdvisor, which is a site that is made up almost entirely of 3rd party reviews, gets threatened with litigation over and over again, based on business owners angry about negative reviews. 230 is what enables Trip to remain in business, and the company has long been a strong advocate for 230's existence. The fact that it now says it will come to the negotiating table is truly a sad statement on the position that the 230 debate is in today.

Too many intellectually dishonest people have convinced Congress that Section 230 is a problem. And Facebook leapt in with wild abandon to help shape any reform in a manner that will most harm competitors. So now the smaller companies are put in the impossible position: continue to fight and be left out of the negotiations (where Congress will point to Facebook's participation as "support from internet companies") or agree to be a part of the process to push back on whatever awful ideas Facebook proposes for reform.

It's ridiculous that these companies had to do this, and now the anti-230 crowd will cheer on this dismantling of their own protections.

Filed Under: competition, intermediary liability, negotiations, reform, section 230
Companies: facebook, reddit, snap, tripadvisor

FTC's Misses Opportunity To Understand Social Media; Instead Goes For Weird Fishing Expedition Against Odd Grouping Of Companies

from the this-could-have-been-helpful dept

On Monday, the FTC announced that it was issuing what's known as 6(b) orders to nine social media and video streaming companies, demanding a fairly massive amount of information regarding their data collection and usage policies, as well as their advertising practices. To me, this is a huge missed opportunity. If the FTC is truly trying to gain a better understanding of data collection, privacy, and advertising practices, perhaps to better inform Congress on how to, say, pass a truly comprehensive (and useful?!?) privacy legislation, then there are ways to do that. But this... is not that. This looks like a weird fishing expedition for a ton of unrelated information, from an odd selection of nine companies, many of whom are in a very different business than the others. It leaves me quite perplexed.

First, let's look at the odd selection of companies. The letters are going to:

• Amazon (apparently including Twitch)
• Bytedance (TikTok)
• Discord
• Facebook
• Reddit
• Snap
• Twitter
• WhatsApp (owned by Facebook)
• YouTube

Okay, so they've definitely focused on many of the big players, but they've also left out a ton as well. Where's LinkedIn? Or Github? Or WeChat? Or Pinterest? Or Quora? They list Facebook and Whatsapp... but not Instagram? Where's Zoom? Now it's true that sometimes the FTC will randomly sample a bunch of companies in a particular industry to get a look at certain practices -- but for that to make sense, you want to sample from a set of similarly situated companies. This is... not that.

For the smaller companies on the list, such as Reddit and Discord, the FTC demanding they file a ton of paperwork in a very short time frame is going to mean a tremendous waste of time.

The second concern is the broad nature of the requests. The "sample order" is massive. There are 53 separate requests, many with multiple sub-parts. They're not just asking for specific information, but rather going on what appears to be an incredibly broad fishing expedition for information about a wide variety of practices at all of these companies -- including broad demands for future strategies and plans. For example, beyond just information on the number of users, it demands all documents relating to "business strategies or plans," "research and development efforts," "strategies or plans to reduce costs, improve products or services..." It also seems to be demanding all "presentations to management committees, executive committees, and boards of directors."

That feels like a fishing expedition, rather than an attempt to actually understand data collection and usage practices.

There are categories of information included here that I think it would be useful for the FTC to understand. But there's just so much information requested that it seems likely to bury the useful information.

The one FTC Commissioner who dissented from this effort, Noah Joshua Phillips, raises important questions in his dissent:

Effective 6(b) orders look carefully at business practices in which companies engage in a manner designed to elicit information, understand it, and then present it to the public in way that is usable and can form a basis for sound public policy.

The first step is to select a group of recipients that will permit such examination, usually a group of firms engaged in conduct that can be compared. But the logic behind the choice of recipients here is not clear at all. The 6(b) orders target nine entities: Facebook, WhatsApp, Snap, Twitter, YouTube, ByteDance, Twitch, Reddit, and Discord. These are different companies, some of which have strikingly different business models. And the orders omit other companies engaged in business practices similar to recipients, for example, Apple, Gab, GroupMe, LinkedIn, Parler, Rumble, and Tumblr, not to mention other firms the data practices of which have drawn significant government concern, like WeChat. The only plausible benefit to drawing the lines the Commission has is targeting a number of high profile companies and, by limiting the number to nine, avoiding the review process required under the Paperwork Reduction Act, which is not triggered if fewer than ten entities are subject to requests.

Phillips calls out the same broad demands I raised above regarding business plans, R&D and presentations, noting:

Such a request would be suited to an antitrust investigation. But as part of an inquiry ostensibly aimed at consumer privacy practices, it amounts to invasive government overreach. And that is just one of the order’s 50-plus specifications.

And, finally, he highlights how this effort is just demanding way too much information to be of use for a comprehensive policy recommendation:

The biggest problem is that today’s 6(b) orders simply cover too many topics to make them likely to result in the production of comparable, usable information—yet another feature proper oversight and public comment could have flagged. Rather than a carefully calibrated set of specifications designed to elicit information that the agency could digest and analyze as a basis for informing itself, Congress, stakeholders, and the public, these 6(b) orders instead are sprawling and scattershot. Their over 50 specifications, most with numerous and detailed subparts, address topics including, but not limited to: advertising (reach, revenue, costs, and number and type); consumer data (collection, use, storage, disclosure, and deletion); as noted above, all strategic, financial, and research plans; algorithms and data analytics; user engagement and content moderation; demographic information; relationships with other services; and children and teens (policies, practices, and procedures).

Recipients of 6(b) orders typically negotiate to limit their productions, to tailor them in light of their specific business models and business practices. Perhaps the Commission will push back on attempts to do so, devoting additional lawyers to litigating the orders and having a federal judge oversee them, rather than OIRA. Or negotiation may reduce the burdens. But if that happens, each recipient will be responding to a different set of negotiated specifications. That certain of the companies in question have very different business models makes this even more likely. The end result of that is, say, the agency learning a lot about one recipient’s advertising practices, but not as much about its algorithms. For another recipient, the agency might receive information about privacy practices but very little about its plans to expand. Each of the nine recipients will produce differing, if any, amounts of information to each of the 50-plus specifications.

I actually think it would be a good thing for the FTC to better understand how these companies work and their practices. I think it could be useful for them to gain such an understanding, and then make recommendations on a comprehensive federal privacy law. But I don't see how this fishing expedition does any of that. Instead, it just asks for basically everything and the kitchen sink from a somewhat random selection of companies, some of whom will have difficulty producing all of this information.

Filed Under: data, data collection, data protection, fishing expedition, ftc, privacy, social media, video streaming
Companies: amazon, bytedance, discord, facebook, reddit, snap, tiktok, twitch, twitter, whatsapp, youtube

Story About Ex-Sony Pictures Boss Magically Disappears From Gawker; His Lawyer Tells Reporters Not To Talk About It

from the right-to-be-forgotten? dept

Can people use a bankruptcy proceeding to create a "right to be forgotten"? We already know that Europe has implemented a form of a right to be forgotten that it's now looking to expand. However, in the US, the First Amendment has protected us against such things -- even if some politicians don't realize it.

However, it appears that something has happened, hidden behind the sealed doors of Gawker's bankruptcy that has resulted in a story about ex-Sony Pictures boss Michael Lynton disappearing from the Gawker archive:

A 2015 Gawker article that highlighted leaked emails written by Sony Pictures CEO Michael Lynton has been quietly removed from the internet, the latest in a line of stories from the former digital media company to be disappeared under apparent legal pressure from powerful figures.

The story pieced together some of Lynton’s emails disclosed in the Sony Hack, the monstrous dump of company materials in late 2014 that was catastrophic for the studio and widely covered by the media.

Lynton -- who once claimed that nothing good has come from the internet ever -- left Sony Pictures recently to focus on being chair of the board at Snap, the company that does Snapchat (a company that kinda relies on that no good, very bad internet Lynton hates). But apparently, on the side, he was somehow secretly convincing the Gawker "estate" to delete some articles he didn't like.

This is different than when Univsion pulled down a bunch of Gawker stories after purchasing many of the company's assets out of bankruptcy. In that case, Univision claimed -- questionably -- that since it had purchased just the assets, but not liabilities, it had to take down any story that was subject to a lawsuit. This ignored a whole bunch of things, including the "first publication" rule, but whatever. In this case, the story was still hosted by what's left of Gawker. That is, when Gawker sold a bunch of assets to Univision, it did not sell the flagship "Gawker" site itself, but has instead maintained the archives. And that included some stories on Lynton that revealed things via the Sony Pictures email hack.

And thus it appears that some sort of settlement was reached behind the scenes, with no public explanation or details... to flat out delete a story that apparently Lynton or someone close to Lynton didn't like. As reporter Matthew Zeitlin notes, we should all be concerned that a news story can disappear just "because of opaque bankruptcy proceedings." And, of course, because this is the internet, the Streisand Effect is already taking over, with people passing around links to the story that was disappeared. The story in question, like many stories, was probably embarrassing to some people, but there's been no evidence presented (publicly at least) that it was untrue. No one has shown any evidence that the Sony hack emails that it was based on were not accurate. Ironically, the suppressed story itself is, somewhat, about using money and connections to do things that normal people can't do, so perhaps it's only fitting that a behind the scenes, opaque process was then used to try to memory hole that story.

But the story gets even worse. The Hollywood Reporter has also reported on this and notes that Lynton's lawyer, Andrew Celli, has warned its reporter, Eriq Gardner, not to even report on the disappearing story:

Celli made contact to The Hollywood Reporter's general counsel to express concern after I made inquiries about the vanished article with Gawker. He later suggested that to even repeat the gist of the original Gawker story would be damaging. He threatened a lawsuit and, referring to the Sony hack, told me, “There is a sin at the bottom of this. It’s wrong. The source for information is the result of a crime.”

This is, in the famed words of Popehat, what is known as censorious thuggery. Threatening people with litigation for reporting the news creates serious chilling effects. As Gardner notes in his article -- and as we've been reporting ourselves -- there seems to be a big business lately in so-called "reputation management" efforts to get embarrassing news stories disappeared from the internet. That should concern everyone. There's a reason that the US has a 1st Amendment and rejects things like a "Right to be Forgotten." Such things have a history of being abused by the rich and powerful to silence the press, just because the rich and powerful don't like those stories.

Even if one could give Lynton the benefit of the doubt in getting Gawker's estate to take down the original story, the fact that his lawyer then threatened another publication with a lawsuit just for reporting on the situation makes this even more problematic. Lynton may not like the internet very much, but that doesn't mean he gets to censor it at will.

Filed Under: michael lynton, right to be forgotten, threats
Companies: gawker, snap, sony, sony pictures

Basically The Entire Tech Industry Signs Onto A Legal Brief Opposing Trump's Exec Order

from the we-need-to-stand-up dept

I've been quite clear how I feel about Donald Trump's awful executive order that places a blanket ban on people entering the US (even if they had valid visas) from 7 countries, including a permanent block on Syrian refugees. Tons of people have been protesting this decision, and multiple courts have ruled against it. There has been some discussion over whether or not the tech industry was really going to stand up against this move, and some of the early statements about the executive order were a bit weak. However, late Sunday night, basically the entire technology industry (plus some companies from other industries as well) signed onto an amicus brief calling the order illegal and unconstitutional (technically, it's a motion asking for permission to file the amicus brief, with that brief attached).

The brief was filed in the Ninth Circuit appeals court, which is one of the first appeals courts considering the executive order, after a federal judge in Seattle issued a nationwide temporary restraining order on enforcing the exec order. On Sunday, the appeals court refused to reverse the lower court, keeping the TRO in place. However, it also gave both parties (the lawsuit itself was filed by the state of Washington) a very quick turnaround time to file written arguments to be considered.

Given that incredibly short time frame, the fact that 97 companies -- including some of the world's largest -- but also some tiny ones, like the Copia Institute (the think tank arm of Techdirt), were able to come together and not only get a detailed amicus brief together, but also get sign on from all of those companies (on Super Bowl Sunday, no less), is impressive. Having been through the process in which amicus briefs with multiple signers has been done before, normally there's lots of hemming and hawing from different companies and nitpicking over certain choices. It takes a lot of effort. Update: Another 30 companies have signed on as well.

But this issue was so important and so core and fundamental to our basic values, that basically the entire industry came together and signed onto this. You name the company, and it's probably signed on. There are the big guys: Google, Facebook, Microsoft and Apple (despite a false Washington Post article that claimed none of them had signed on). There are lots of other huge names as well, including Twitter, Snap, Uber, Airbnb, Lyft, Dropbox, Cloudflare, Box, eBay, GitHub, Kickstarter, Indiegogo, Medium, Mozilla, Patreon, Paypal, Pinterest, Reddit, Salesforce, Spotfy, Stripe, Wikimedia, Yelp, Y Combinator and many, many more. Update: Among the notable companies in the "late" sign on, were SpaceX, Tesla, Slack, Pandora, Adobe, HP, Evernote, Udacity and more...

I highly recommend reading the full amicus brief -- which makes an economic argument, a moral argument and a legal argument all wrapped up in one.

Immigrants make many of the Nation’s greatest discoveries, and create some of the country’s most innovative and iconic companies. Immigrants are among our leading entrepreneurs, politicians, artists, and philanthropists. The experience and energy of people who come to our country to seek a better life for themselves and their children—to pursue the “American Dream”—are woven throughout the social, political, and economic fabric of the Nation.

For decades, stable U.S. immigration policy has embodied the principles that we are a people descended from immigrants, that we welcome new immigrants, and that we provide a home for refugees seeking protection. At the same time, America has long recognized the importance of protecting ourselves against those who would do us harm. But it has done so while maintaining our fundamental commitment to welcoming immigrants—through increased background checks and other controls on people seeking to enter our country.

[....]

The Order effects a sudden shift in the rules governing entry into the United States, and is inflicting substantial harm on U.S. companies. It hinders the ability of American companies to attract great talent; increases costs imposed on business; makes it more difficult for American firms to compete in the international marketplace; and gives global enterprises a new, significant incentive to build operations— and hire new employees—outside the United States.

The Order violates the immigration laws and the Constitution. In 1965, Congress prohibited discrimination on the basis of national origin precisely so that the Nation could not shut its doors to immigrants based on where they come from. Moreover, any discretion under the immigration laws must be exercised reasonably, and subject to meaningful constraints.

There's much more in the full brief, and hopefully the court allows it and recognizes how momentous this is. I've never seen anything that so many tech companies have gotten behind (including things like SOPA), and this happened so fast that it is literally unprecedented. A whole bunch of people put in a tremendous effort to actually get this done (including more than a few having to miss the Super Bowl to get this done...). Andy Pincus from Mayer Brown deserves a specific shoutout for being the main lawyer putting the brief together.

We shall see what happens from here, but having basically the entire tech industry rise up in a single voice to say that this order is not right is nice to see. In this day and age, it's easy not to speak out and to just sit on the sidelines. But this is important, and when it mattered all of these companies spoke out.

Filed Under: amicus brief, donald trump, executive order, muslim ban, tech industry, travel, visas
Companies: apple, copia institute, facebook, google, microsoft, netflix, snap, twitter