States Wouldn't Be Pushing Inconsistent Tech Laws If Congress Wasn't So Corrupt

from the cycle-of-stupid dept

You might recall after the telecom lobby convinced Congress to obliterate both privacy and net neutrality rules (despite both having bipartisan public support), there was a lot of industry whining about the various state replacement efforts that popped up. For example when California popped up with its own net neutrality rules, AT&T whined incessantly about how a "discordant network of state laws" would harm puppies and innovation. Ignored, of course, is that states were simply rushing to fill the consumer protection void created by federal apathy, itself a direct result of lobbying (aka corruption).

The same thing happened with broadband privacy guard rails. In 2015, the FCC proposed some fairly basic broadband privacy rules largely focused on making sure what was being collected and sold would be transparent to consumers. But the telecom lobby was easily able to lobby the GOP-controlled Congress to use the Congressional Review Act to kill those rules before they could even take effect. And again, giants like AT&T whined about the discordant landscape of imperfect state legislative efforts that popped up in its wake, hoping you'd ignore that they helped create the problem by attacking even the most basic federal protections.

The same thing of course is now playing out in the broader tech sector as well. For years, the tech, healthcare, marketing, insurance, and telecom sectors have worked to uniformly battle any meaningful federal privacy protections on the federal level. Not just the bad proposals. All of them. And, unsurprisingly, after years of this, states have started filling the void with their own solutions, many of which are less than perfect. This, as we saw with telecom, is causing all manner of consternation and constipation at major tech companies:

"There's little question state and local policy moves get the attention of both tech companies and Congress. David Edmonson, vice president for state policy and government relations at the trade group TechNet, said that the "impact of a 50-state patchwork" is among the group's highest concerns.

The group, which is known for its state-level advocacy work, said it worries about the compliance costs and impact of patchwork regulation on small businesses — although its membership is primarily midsize and large companies. It also fears the potential impact on consumers who may be confused about their rights or who remain completely uncovered because of where they live, according to Edmonson."

"A 50-state patchwork of state-based privacy laws creates more problems than it solves both for consumers and the digital economy," he said. "A single federal standard that applies to all 50 states is better for both consumers and businesses."

AT&T and Comcast are both members of Technet, it should be noted, and are both particularly guilty of this practice of lobbying against all federal consumer protections, then whining incessantly about the resulting escalation in state proposals. So basically, large companies work tirelessly to fight pretty much any meaningful federal consumer protections, then complain via their proxy groups about the end result, namely an inconsistent patchwork of discordant state consumer protection rules. At no point is there any awareness that their own actions may have contributed to the outcome they're now complaining about.

Yes, there's some valid business concerns about having to comply with a massive patchwork of often inconsistent legislative solutions. And there's certainly ample concerns with how many of these laws are written, as California's often problematic privacy law can attest. And yes, there's also plenty of valid concerns that legislating many of these problems is well beyond the core competency of many modern q-anon-era elected officials.

But what I've noticed missing from any of these conversations is how this is all largely a byproduct of Congressional corruption. Or, quite often, any mention that the very problem companies are complaining about (states passing discordant legislation) was the direct byproduct of their lobbying influence on federal lawmakers.

Congress is so broken and corrupt, even very popular proposals (see: net neutrality) can't survive for long. And that's particularly true of policy issues that see broad, cross-industry opposition like privacy. There's an army of industries, all with near unlimited budgets, laser-focused on not just opposing bad federal privacy rules, but any federal privacy rules at all. It's virtually impossible for activists, academics, and truly solution-focused, objective experts to combat efforts backed with those kinds of resources. Again, we can call that specific problem a lot of things, but it's predominately a byproduct of corruption.

Those with the power and resources to truly dictate U.S.tech policy very much like the current unaccountable adtech paradigm that involves over-collecting data, selling access to it to any nitwit with a nickel, failing repeatedly to secure it, then occasionally getting a piddly wrist slap from underfunded and understaffed U.S. regulators as a modest cost of doing business.

If you look at the steady drumbeat of hacking, location data, and other scandals, that approach isn't working out that well for the rest of us. And yet we still somehow can't seem to get even a basic federal privacy law on the books (one that mandates some very basic transparency requirements, or erects some very clear but meaningful penalties for companies that refuse to secure their networks and servers). The primary reason for that is clearly corruption, but again, that's often rarely mentioned in discourse.

At some point you'd think many of these large companies would realize that it would be better to concede on some issues and support basic, decent, federal solutions even if there's a revenue hit. But because they know Congress is ethically malleable, they know they don't have to do that.

So instead, as we saw in telecom, you'll have a company like AT&T lobby to kill meaningful federal and state consumer protections (privacy, net neutrality), then try to push their own shitty federal proposals written by their lawyers. Proposals so filled with intentional loopholes as to be useless beyond one core function: supplanting better, stronger, consensus-driven federal and state legislative solutions. But whether it's Facebook or AT&T, if they truly claim to want consistent federal guidelines, maybe, I don't know, stop throwing millions of dollars at lawmakers who then fight tooth and nail against absolutely every effort to do that?

Filed Under: broadband, congress, corruption, privacy, regulations, soft corruption, states

Congressional Lawmaker Give Up Attempt To Dump Qualified Immunity In Police Reform Efforts

from the actual-accountability-is-still-just-a-dream dept

The judicial construct known as qualified immunity will continue to make it harder for people to obtain redress for rights violations… at least for the time being. While there has been a more sustained movement to reform law enforcement across the nation, thanks to cops doing the sort of stuff they've been doing for decades, qualified immunity seems particularly bulletproof.

It probably seemed like a good idea at the time. It provided government employees a way to avoid being entangled in frivolous litigation based on unsustainable allegations of rights violations. But since that point, it has morphed into an easy button for civil suits, a route cops can use to escape accountability for actual rights violations so long as they violate rights in a way courts haven't previously declared an obvious rights violation.

Last year, as protests against police brutality raged around the nation, federal legislators offered up a reform bill that would have altered qualified immunity, changing it from a de facto defense to something officers would actually have to prove in court. Rather than just offer up a motion to dismiss based on qualified immunity, officers would have to show their rights violations were performed in good faith, using more than a couple of boilerplate sentences. Evidence and justifications would need to be offered and, given the lack of an early out, more civil rights cases would subject officers to a jury of their peers, rather than a rote recitation of Supreme Court decisions before granting a dismissal.

Of all the things cops want to hold onto, qualified immunity is at the top of the list. Their legal reps -- housed in numerous police unions around the nation -- have an even greater desire to see this doctrine remain intact. These two entities hold a lot of power, and have held this power for years. And there's a certain contingent of legislators, at every level, who will never do anything that might be perceived as being anti-cop. So, the struggle continues. And, for the moment, hopes of seeing qualified immunity rolled back at the federal level have died along with the reform bill that once threatened this extra right granted to government employees.

Here's Marianne Levine and Nicholas Wu with more details for Politico.

Police reform negotiators are no longer considering changes to a controversial legal doctrine known as “qualified immunity," according to three sources familiar with the matter.

Qualified immunity, which shields police officers from civil liability for misdeeds, has remained one of the main points of contention in the police reform negotiations. It being taken off the table could make the final product tough to sell to progressives, who want to see it scrapped altogether and have been outspoken about their demands to change the doctrine. But Republicans have been firm that they have no interest in getting rid of qualified immunity.

What's being offered now is a "slimmed down" version. It appears it only needed to lose the qualified immunity alteration to get back to its fighting weight. Republicans refuse to budge on this point, making it all but impossible to move forward with the bill with this intact.

Some have suggested simply shifting the legal burden from cops to their employers in hopes of reducing police union opposition to qualified immunity reform. But that wouldn't solve the problem. It would only relocate it. And it would codify qualified immunity, making it that much more difficult to roll back in the future. As of now, it's solely a construct of the Supreme Court, albeit one that has considerable power.

For the moment, qualified immunity remains alive and well, an enabler of rights abuses by government employees. As long as it remains alive, cops will continue to abuse rights with near impunity. But, as long as cops continue to do that, they will continue to provide more motivation and ammo for those seeking to strip away this immunity judges have granted to far too many dangerously underqualified law enforcement officers.

Filed Under: civil rights, congress, criminal justice reform, police, police reform, qualified immunity

4 Dems Pushing Game Companies To Drop Loot Boxes Pointing At UK Law That Doesn't Mention Loot Boxes

from the what's-in-the-box dept

Somehow, despite all odds, the conversations between the public and the video game industry about loot boxes are still going on. If you're not familiar with loot boxes, they are a randomized reward, typically after a purchase, that provides some kind of in-game benefit, cosmetic or in gameplay, to the purchaser. Because of their random nature, a whole lot of people consider them both a form of gambling (kinda) and an affront to fair online competitive gameplay (definitely) because they allow those with money to be stronger in the game than those without money. This consternation has caught the eyes of politicians, who then attempt to trade off of it in order to build up some kind of goodwill with the gaming public. You will recall that Josh Hawley introduced a doomed bill in the Senate to "regulate play to win" practices of video game companies. The bill died in Congress without receiving a vote.

Well, now a group of Democrats are trying to get larger gaming companies to self-regulate their own loot box practices by pointing to a UK law of all things.

Democrats are calling on some of the largest gaming companies to better protect children by extending new UK design rules to children in the US. The regulations could ban companies from selling in-game loot boxes to minors, among other restrictions. In letters to a dozen major gaming companies, including Blizzard, Epic Games, Microsoft, Nintendo, and Riot, Sen. Ed Markey (D-MA), Rep. Kathy Castor (D-FL), and Rep. Lori Trahan (D-MA) pressed executives to extend new UK design regulations to children in the US.

“It is imperative that Congress acts with urgency to enact a strong privacy law for children and teens in the 21st century,” the lawmakers wrote. “As we work towards that goal, we urge you to extend to American children and teens any privacy enhancements that you implement to comply with the AADC.”

You can read the entire letter here (PDF). One important section of that letter to gaming executives includes this.

Loot boxes go one step further, encouraging purchase before a child knows what the “bundle” contains— akin to gambling.3 Children are uniquely vulnerable to manipulation and peer pressure associated with in-game purchases and loot boxes. Experts suggest that Entertainment Software Rating Board (ESRB) ratings and parental controls are insufficient. 4 The AADC represents a monumental step towards child centric design by default.

And, with respect to loot boxes, that is a very interesting position to take for this group of politicians. Why? Well, primarily because the AADC has literally nothing to say about loot boxes. As in, it doesn't even mention them. The AADC is also not a "law", but a regulatory set of standards.

However, the code explicitly mentions neither loot boxes nor in-game gambling, nor ever really even alludes to them. While the subjects of loot boxes and IAPs came up during the UK regulator’s research into “Detrimental use of data,” it’s not a factor of the final publication. It’s certainly a stretch to see how the content of the AADC relates to what’s raised in the letter sent to US publishers.

And so, to summarize: a group of Democrats are attempting to gaslight the gaming industry into doing what they want by citing a regulation from another country that doesn't even apply to its demands, all under threat of actual American legislation. "Do what we say even though our argument doesn't make sense or we'll force you to do it anyway" is not a great look for any politician, never-mind one attempting to apply this towards an industry that is absolutely protected by the First Amendment. The goal of introducing protections for children against micro-transaction practices in video games may well be a well-intentioned goal, but getting there by sneaky means doesn't fill the soul with confidence.

But, then, so little about Congress does these days.

Filed Under: congress, ed markey, kathy castor, loot boxes, lori trahan, regulations, uk, video games

Why Companies Keep Folding to Copyright Pressure, Even If They Shouldn't

from the fight-back-for-user-rights dept

The giant record labels, their association, and their lobbyists have succeeded in getting a number of members of the U.S. House of Representatives to pressure Twitter to pay money it does not owe, to labels who have no claim to it, against the interests of its users. This is a playbook we’ve seen before, and it seems to work almost every time. For once, let us hope a company sees this extortion attempt for what it is and stands up to it.

Here is the deal. Online platforms that host user content are not liable for copyright infringement done by those users so long as they fulfill the obligations laid out in the Digital Millennium Copyright Act (DMCA). One of those obligations is to give rightsholders an unprecedented ability to have speech removed from the internet, on demand, with a simple notice sent to a platform identifying the offending content. Another is that companies must have some policy to terminate the accounts of “repeat infringers.”

Not content with being able to remove content without a court order, the giant companies that hold the most profitable rights want platforms to do more than the law requires. They do not care that their demands result in other people’s speech being suppressed. Mostly, they want two things: automated filters, and to be paid. In fact, the letter sent to Twitter by those members of Congress asks Twitter to add “content protection technology”—for free—and heavily implies that the just course is for Twitter to enter into expensive licensing agreements with the labels.

Make no mistake, artists deserve to be paid for their work. However, the complaints that the RIAA and record labels make about platforms are less about what individual artists make, and more about labels’ control. In 2020, according to the RIAA, revenues rose almost 10% to $12.2 billion in the United States. And Twitter, whatever else it is, is not where people go for music.

But the reason the RIAA, the labels, and their lobbyists have gone with this tactic is that, up until now, it has worked. Google set the worst precedent possible in this regard. Trying to avoid a fight with major rightsholders, Google voluntarily created Content ID. Content ID is an automated filter that scans uploads to see if any part—even just a few seconds—of the upload matches the copyrighted material in its database. A match can result in either a user’s video being blocked, or monetized for the claiming rightsholder. Ninety percent of Content ID partners choose to automatically monetize a match—that is, claim the advertising revenue on a creator’s video for themselves—and 95 percent of Content ID matches made to music are monetized in some form. That gives small, independent YouTube creators only a few options for how to make a living. Creators can dispute matches and hope to win, sacrificing revenue while they do and risking the loss of their channel. Fewer than one percent of Content ID matches are disputed. Or, they can painstakingly edit and re-edit videos, or avoid including almost any music whatsoever and hope that Content ID doesn’t register a match on static or a cat’s purr.

While any creator has the right to use copyrighted material without paying rightsholders in circumstances where fair use applies, Content ID routinely diverts money away from creators like these to rightsholders in the name of policing infringement. Fair use is an exercise of your First Amendment rights, but Content ID forces you to pay for that right. WatchMojo, one of the largest YouTube channels, estimated that over six years, roughly two billion dollars in ads have gone to rightsholders instead of creators. YouTube does not shy away from this effect. In its 2018 report “How Google Fights Piracy,” the company declares that “the size and efficiency of Content ID are unparalleled in the industry, offering an efficient way to earn revenue from the unanticipated, creative ways that fans reuse songs and videos.” In other words, Content ID allows rightsholders to take money away from creators who are under no obligation to obtain a license for their lawful fair uses.

That doesn’t even include the times these filters just get things completely wrong. Just the other week, a programmer live-streamed his typing and a claim was made for the sound of “typing on a modern keyboard.” A recording of static got five separate notices placed on it by the automated filter. These things don’t work.

YouTube also encourages people to simply use only the things that they have a license for or are in a library of free resources. That ignores that there is a fair use right to use copyrighted material in certain cases, and lets companies argue that no one has to use their work without paying since these free options exist.

So, when the labels make a lot of disingenuous noise about how inadequate the DMCA is and how platforms need to do more, they have YouTube to point to as a “voluntary” system that should be replicated. And companies will fold, especially if they end up being inundated with DMCA takedowns—some bogus—and if they think the other option is being required to do it by law, the implicit threat of a letter like the one Twitter received.

This tactic works. Twitch found itself buried under DMCA takedowns last year, handled that poorly, and then found itself being, like Twitter, blamed for taking money out of the hands of musicians by the RIAA. Twitch now makes removing music and claimed bits of videos easier, has adopted a similar repeat infringer policy to YouTube’s, and makes deleting clips easier for users. Snap, owner of Snapchat, went the route of getting a license, paying labels to make music available to its users.

Creating a norm of licensed or free music, monetization, or automated filters functionally eviscerates fair use. Even if people have the right to use something, they won’t be able to. On YouTube, reviewers don’t use the clips of the music or movies that are the best example of what they’re talking about—they pick whatever will satisfy the filter. That is not the model we want as a baseline. The baseline should be more protective of legal speech, not less.

Unfortunately, when the tech companies are facing off against the largest rightsholders, it's users who most often lose. Twitter is only the latest target, we hope they become the one to stand up for its users.

Originally posted to the EFF Deeplinks blog.

Filed Under: congress, copyright, dmca, licensing, music
Companies: twitter

House Republicans Introduce Ridiculous, Contradictory, Unconstitutional Package Of 32 Bills About Section 230 And Content Moderation

from the performative-nonsense dept

If you read Techdirt, you already know that there have been literally dozens of ridiculous Section 230 reform bills introduced over the last few years. On Wednesday, the House Republicans on the Energy & Commerce Committee decided to not just add to the batch, but to flood the entire zone with a package of thirty-two more Section 230 reform bills. I mean, if you're going to go that far, why not go all the way and write 230 reform bills?

I'm not going to go through every bill. That would be a total waste of everyone's time. These bills are not designed to do anything constructive at all. They are not designed to pass. They are not designed to reform Section 230. They are designed for one reason and one reason only: to act as performative grandstanding for a deliberately ignorant base who are kept in ignorance by politicians pushing bills like this nonsense.

What I will note, however, is how many of the bills in this package clearly contradict one another (and just how many are obviously unconstitutional under the 1st Amendment in that they seek to regulate speech). In some ways, the package of 32 bills shows why all this focus on Section 230 is nonsense in the first place, and the difficulties of content moderation itself. For example, you have the "Preserving Constitutionally Protected Speech" bill from Reps. Cathy McMorris Rodgers and Jim Jordan. That one would punish websites that remove constitutionally protected speech (which is an unconstitutional attack on those websites' 1st Amendment rights). But, uh, then you have things like bills to require companies to remove cyberbullying and remove doxxing (among a few other things).

Of course, neither cyberbullying nor doxxing are well defined in those bills, but in both cases the speech described is almost certainly protected under the 1st Amendment. So you have some bills saying removing any speech that is protected by the 1st Amendment should lead to punishment, and other bills that say you are required to remove speech that is protected by the 1st Amendment or face massive penalties. Did no one bother to actually look at this collection of bills and realize they don't work together?

There are also a bunch of bills that seem to restate what the law already is. For example, there's one requiring companies to remove child sexual abuse material (though the bill uses the now disfavored term "child porn.") Except, um, that's already the case. Saying it with emphasis in a new law doesn't change that.

Anyway, I'm hard pressed to find anything even remotely sounding like a reasonable idea in all of these bills, but to be fair, I didn't have time to go through all 32 bills in full. Perhaps they can pass a bill to force someone to content moderate these 32 bills to algorithmically show me which ones actually have reasonable ideas, and which ones are just performative nonsense. I fear that the final tally will show that all 32 bills are performative nonsense.

Filed Under: 1st amendment, censorship, congress, content moderation, house, house energy and commerce committee, must carry, republicans, section 230

Congressional Leadership Realizing That 'Big Tech' Antitrust Bills Aren't Ready For Prime Time

from the back-to-the-drawing-board dept

As you've now heard, there's a big push in Congress to revise how antitrust works. A group of mostly Democratic House members (with a few Republicans on board) introduced a questionable package of antitrust bills, with many, many problems. There were some good ideas (such as better funding of the FTC) and some more creative ideas (such as around interoperability), but done in such ham-fisted ways that they would cause a lot more harm than good. We've noted how the bills would create massive problems for content moderation, and raise related speech issues.

Last week's marathon markup hearing in the House Judiciary Committee did not ease these concerns -- if anything they made them much, much worse. After the hearing was finally over, a bi-partisan group of Judiciary Committee members put out a statement highlighting the half-baked nature of the proposals.

“The marathon markup – that started Wednesday morning, recessed as the sun came up on Thursday morning, and then reconvened for another four hours on Thursday – featured several bills that would radically change America’s leading tech companies and made crystal clear that the bill text as debated is not close to ready for Floor consideration.

“The package of legislation poses harm to American consumers and the U.S. economy and left Members on both sides of the aisle with basic questions that have yet to be answered. What companies are covered in the scope of the bills? If only four, why? Why are foreign firms not covered? Were the definitions of ‘covered platforms’ arbitrary or not? How would the bills impact useful products that consumers rely on? How do the bills protect the data of American consumers? How do the bills protect consumers from arbitrary tech company abuses, as well as safeguard the nation’s security and economic interests?

“The 16-month-long investigation conducted by the Antitrust, Commercial, and Administrative Law Subcommittee rightfully scrutinized digital markets in an effort to remove barriers to competition. Unfortunately, the resulting legislative proposals – which the full Committee did not hold a hearing on or have reasonable time to fully consider – fell short of adequately addressing identified problems in an effective way that serves Americans’ interests. We urge the sponsors of the bills to take the necessary time, commit to a comprehensive approach, and work with their bipartisan colleagues of this Committee to address the concerns articulated during markup to further develop these bills.”

Of course, given how nearly all of those concerns were brushed aside by Committee members who support the bills, my fear was that this process was on an unstoppable train track. People had asked Rep. Jerry Nadler to slow things down before the hearing and he had refused. However, it appears that more soberly minded members of the leadership are now realizing that maybe this rush job is a mistake.

Majority Leader Steny Hoyer is now pumping the brakes on moving these antitrust bills to a full floor vote.

“There was disagreement among the Democrats in the committee and not every Democrat voted for it, and some very senior members opposed it,” Hoyer said of the House Judiciary’s consideration of the legislation last week. “There’s a lot of discussion to be had before I get to scheduling bills for the floor.”

What this really means is that someone has taken the temperature of the other members and realized there aren't enough votes to pass these bills. That doesn't mean they won't be back (or that this process won't just jump over to the Senate for now). It's entirely possible that updated versions of the bills will be even worse. But, for now, at least, it appears that Congress is taking at least a temporary breather on rushing through these bills.

Filed Under: antitrust, big tech, congress, david cicilline, steny hoyer

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

from the so-much-silliness dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Filed Under: congress, consumer protection, content moderation, mark zuckerberg, section 230
Companies: facebook, muslim advocates

House Transportation Committee Looking To Restart Federal Funding Of Red Light Cameras

from the back-to-buying-stuff-everyone-alreadys-knows-doesn't-work dept

Federal funds -- banned since 2015 from being used by states to purchase red light/speed cameras -- are possibly headed back to buying tech that hasn't done anything to make driving safer.

In 2012, language was added to the federal transportation bill that denied states federal funding for traffic cameras.

"A state may not expend funds apportioned to that state under this section to carry out a program to purchase, operate, or maintain an automated traffic enforcement system…"

But it didn't become law until 2015, and was expanded to exclude automatic license plate readers.

"None of the funds made available by this act may be used to acquire a camera for the purpose of collecting or storing vehicle license plate numbers," the House-passed language states.

Some of that may be rolled back with this year's budget proposal, The Newspaper (which did all the previously-cited reporting) reports:

The US House Committee on Transportation and Infrastructure on Wednesday will review sweeping legislation that would, among other things, encourage local governments to set up speed cameras using federal taxpayer dollars. The move would reverse a ban on federal funding for both red light cameras and speed cameras that has been in place since 2015.

[...]

"Notwithstanding subparagraph (A), a state may expend funds apportioned to that state under this section to carry out a program to purchase, operate, or maintain an automated traffic system in a work zone or school zone," the proposal states.

The bill [PDF] also adds this language, which doesn't do much to clarify what these guidelines might entail.

Any automated traffic enforcement system installed pursuant to subparagraph (B) shall comply with speed enforcement camera systems and red light camera systems guidelines established by the Secretary.

If this passes, it will reverse a half-decade ban on federally funding this mostly-useless tech. As The Newspaper notes, the federal government was an early adopter of traffic enforcement camera systems, providing funds for several pilot programs around the country more than 20 years ago.

But as report after report showed these cameras did little to increase safety, legislators began to reconsider the federal government's involvement in programs that appeared to do nothing more than generate revenue.

And it's not as though the tech has improved over the years. Accuracy isn't necessarily the goal. The more tickets issued, the more every party involved (local governments, traffic cam manufacturers) benefits. Well, not every party. Drivers are part of the equation but they're viewed as little more than mobile ATMs. Automated systems cut down on payroll expenses and replace it with cheap mailed tickets that, in many cases, can't even be challenged in court. Win-win for governments. Lose-lose for the people paying their salaries.

In other words, there are several good reasons for the federal government to stay out of the automated traffic enforcement business. Those reasons apply to local governments as well. But the federal government shouldn't be making it easier for local governments to indulge their desires to turn residents into revenue streams.

Filed Under: congress, funding, redlight cameras, speed cameras

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

from the the-cronyiest-of-capitalists dept

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

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

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

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

Filed Under: antitrust, competition, congress, innovation, rupert murdoch
Companies: news corp.

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

from the stay-tuned dept

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

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

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

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

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

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

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

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

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

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

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

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

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

So... that's interesting.

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

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

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

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

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

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

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

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

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

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

Filed Under: access, adam schiff, cia, common law rights of access, congress, doj, foia, kel mcclanahan, public records, richard burr, shawn musgrave, speech and debate, torture report