Hey, American citizens! Several of your Congressional representatives are criminals! Unfortunately, this will come as a completely expected news to many constituents. The cynic in all of us knows the only difference between a criminal and a Congressperson is a secured conviction.
We may not have the evidence we need to prove this, but we have something even better: facial recognition technology. This new way of separating the good and bad through the application of AI and algorithms is known for two things: being pushed towards ubiquity by government agencies and being really, really bad at making positive identifications.
At this point it's unclear how much Prime members will save on legal fees and bail expenditures, but Amazon is making its facial recognition tech ("Rekognition") available to law enforcement. It's also making it available to the public for testing. ACLU took it up on its offer, spending $12.33 to obtain a couple dozen false hits using shots of Congressional mugs.
In a test the ACLU recently conducted of the facial recognition tool, called “Rekognition,” the software incorrectly matched 28 members of Congress, identifying them as other people who have been arrested for a crime.
The members of Congress who were falsely matched with the mugshot database we used in the test include Republicans and Democrats, men and women, and legislators of all ages, from all across the country.
The bad news gets worse.
The false matches were disproportionately of people of color, including six members of the Congressional Black Caucus, among them civil rights legend Rep. John Lewis (D-Ga.).
And here's the chilling lineup of usual suspects according to Amazon's Rekognition:
Using 25,000 publicly-available mugshots and Rekognition's default settings, the ACLU picked up a bunch of false hits in very little time. This is only a small portion of what's available to law enforcement using this system. Agencies have access to databases full of personal info and biometric data for hundreds of thousands of people, including people who've never been charged with a crime in their lives.
The obvious downside to a false hit is, at minimum, the unjustified distribution of identifying info to law enforcement officers to confirm/deny the search results. At most, it will be the loss of freedom for someone wrongly identified as someone else. Recourse takes the form of lawsuits with a high bar for entry and slim likelihood of success, thanks to several built-in protections for law enforcement officers.
Amazon continues to market this system to law enforcement agencies despite its apparent shortcomings. Very little has been written about the successes of facial recognition technology. There's a good reason for this: there aren't that many. There certainly haven't been enough to justify the speedy rollout of this tech by a number of government agencies.
This little experiment has already provoked a response from Congressional members who are demanding answers from Amazon about the ACLU's test results. Amazon, for its part, claims the ACLU's test was "unfair" because it used the default 80% "confidence" setting, rather than the 95% recommended for law enforcement. The ACLU has responded, noting this is the default setting on Rekognition and nothing prompts the user -- which could be a law enforcement officer -- to change this setting to eliminate more false positives. In any event, at least Congress is talking about it, rather than nodding along appreciatively as federal agencies deploy the tech without public consultation or mandated privacy impact reports turned in.
So, we've kind of been over this. One of the cornerstones of the broadband industry's flimsy and facts-optional assault on net neutrality was that the rules somehow demolished broadband industry investment. Of course the press has noted time and time and time again how that's simply not true.
It's simply not debatable. Close examinations of SEC filings and public earnings reports during the period highlight how this alleged investment apocalypse never actually happened. What's more, CEOs from nearly a dozen ISPs are on public record telling investors (who by law they can't lie to) that the claim was effectively bogus, and that they saw no meaningful impact from the rules. Again, that's not surprising, since many broadband industry executives have also acknowledged the rules, which were discarded last June, really didn't hurt them unless they engaged in anti-competitive behavior.
Still, the false claim gained traction online thanks to industry-linked economists and the usual industry stenographers. These days, the only folks you'll find still clinging to this repeatedly debunked narrative are either ISPs, ISP-linked consultants, or the think tanks, fauxcademics and other policy voices ISPs pay to intentionally muddy the discourse waters. And oh, Ajit Pai, who again this week lied to Congress in claiming that net neutrality was a broadband investment apocalypse. From his testimony during an "oversight" (that term is used loosely) hearing:
"...we’ve returned to the successful light-touch regulatory framework under which the Internet flourished in the United States from 1996 to 2015. Under the heavy-handed regulations adopted by the prior Commission in 2015, network investment declined for two straight years, the first time that had happened outside of a recession in the broadband era."
Except that is, again, not even remotely true. For one, ISPs spent years technically under Title II (cable until 2002 and DSL until 2005) without the sky falling. That was until FCC boss Mike Powell (now the top lobbyist for the cable industry) decided to weaken FCC oversight over broadband monopolies under the bullshit claim it would result in a broadband competition utopia (you may have noticed that didn't happen). Companies like Verizon also like to ignore the fact they were just fine having parts of their businesses regulated under Title II for years--when it was providing the company with notable tax breaks.
And when the FCC did reclassify ISPs as common carriers again under Title II in 2015, the agency used forbearance to prevent applying many of the heavier, utility-style regulations upon ISPs. The FCC also went well out of its way to make it clear that it had no intention of seriously regulating broadband rates, a gift to ISPs that have been abusing their monopoly markets via price hikes and obnoxious fees for nearly two decades now. In short: Title II was never the bogeyman it was portrayed as, and many ISPs were just fine with Title II -- when it fit their political and financial argument du jour.
As for the purported investment dip caused by Title II, numerous major ISPs like Comcast (who boosted CAPEX by 13 percent in 2015) reported an overall increase in investment during that period. At best investment (which is usually dictated by competition) remained flat. And while Ajit Pai has also tried to claim that the rules somehow placed an unfair financial burden on smaller ISPs, the agency's own data disproves those claims as well. In fact, a coalition of thirty small ISPs opposed Pai's historically-unpopular attack on the rules as counterproductive and harmful to a truly competitive internet.
Again, the only reports claiming that net neutrality hurt sector investment come from industry linked economists who intentionally cherry picked very specific, unrelated windows of investment slowdown (like scheduled cable box upgrades ending) and massaged the data to falsely imply net neutrality was to blame. Despite the fact these studies have been debunked by years of journalism and public admissions from the industry itself, Pai and ISP lobbyists enjoy repeating them in the apparent belief that repetition forges reality.
From there, Pai informed Congress that they no longer need to worry about this investment-killing bogeyman thanks to his Orwellian-named "Restoring Internet Freedom Order":
"In the Restoring Internet Freedom Order, which was adopted last December, we stopped regulating the Internet with 1934 rules designed for the Ma Bell telephone monopoly. We strengthened our transparency rules so that broadband providers are required to disclose more information about their network management practices. And we restored the authority of the Federal Trade Commission, our nation’s premier consumer protection agency, to police the practices of Internet service providers—authority the prior Commission had stripped from the FTC in 2015.
You'll be shocked to learn that Pai's still not telling the truth here, either. This industry line that the FCC's 2015 net neutrality rules were somehow "designed for the ma bell telephone monopoly" or impose "archaic, utility-style rules on modern networks" is decidedly false, as we've explained in great detail previously. The claim that ISP transparency rules have been "strengthened" is also false, since Pai effectively replaced tough ISP transparency requirements with the policy equivalent of a pinky swear. Pai's FTC claims are also incorrect, since the FTC lacks the resources or authority to really police broadband providers effectively.
Of course this cavalcade of bullshit is nothing new for Pai, as we saw recently when he claimed that the majority of Americans support his attacks on net neutrality, something survey after survey (another of which was released this week) disproves. Of course countless reporters, citing publicly-available data, have been pointing all of this out for years, not that appears to matter in post-truth America. The bottom line is that net neutrality rules are dead, and Pai ignored the public, the experts, and relied entirely on garbage data to justify killing them. With zero substantive repercussions.
Eventually accountability will likely come for Pai, either in the form of the looming lawsuits by Mozilla and consumer groups, or the inevitable collision between his obvious post-FCC political aspirations and the Millennial voters who are vibrantly aware of just how badly his decision will screw them over the longer haul.
So, yesterday the House Judiciary Committee did what the House Judiciary Committee seems to do best: hold a stupid, nonsensical, nearly fact-free "hearing" that serves as nothing more than an opportunity for elected members of Congress to demonstrate their ignorance of an important topic, while attempting to play to their base. This time, the topic was on the content filtering practices of Facebook, Twitter and Google. Back in May there was actually a whole one day conference in Washington DC on this topic. The Judiciary Committee would have been a lot better served attending that than holding this hearing. I'd recommend not wasting three hours of your life watching this thing, but if you must:
The shortest summary would be that some Republican members of Congress think that these websites censor too much conservative speech, and some Democratic members of Congress think that they don't censor enough other speech (including hoaxes and conspiracy theories)... and almost no one wants to admit that this is not even remotely an issue that Congress should be concerned about. There's a narrative that has been picked up by many that insist that social media platforms are unfairly censoring "conservatives." There is basically zero evidence to support this. Indeed, a thorough analysis of the data back in March by Nieman Labs and Newswhip found that conservative-leaning sites get much, much, much more engagement on Facebook than liberal-leaning sites.
But, never let facts get in the way of a narrative. Since that seems to be the way many hyperpartisan sites (at either end of the spectrum) deal with these things, Congress is helping out. The only bit of sanity, perhaps bizarrely, came from Rep. Ted Lieu, who reminded everyone of the importance of free markets, free speech and the fact that private platforms get to decide how they manage their own services. Considering that Republicans often like to claim the mantle of being the "small, limited government" party who wants the government's hands out of business regulation, the fact that most of the hearing involved Republicans screaming for regulating internet platforms and a Democrat reminding everyone about the importance of a free market, capitalism and free speech, it really was quite a hearing. Lieu's remarks were some of the rare moments of sanity during the hearing -- including defending Facebook leaving Alex Jones' conspiracy theories on its site. Let's start with that high point before we dive into the awfulness. His comments come at about 2 hours and 10 minutes into the video:
... we're having this ridiculous hearing on the content of speech of private sector companies. It's stupid because there's this thing called the First Amendment. We can't regulate content! The only thing worse than an Alex Jones video is the government trying to tell Google... to prevent people from watching the Alex Jones video. We can't even do it if we tried. We can't even do any legislation out of this committee. And we're having this ridiculous second installment hearing after the first hearing about Diamond and Silk not getting enough likes on Facebook.
He then went on to ask questions "so the American public understands what a dumb hearing this is." And those questions -- again -- seemed like the kinds more expected from supposedly "free market" conservatives. Specifically he asked the companies if they were private companies aiming to maximize profits for shareholders. And he wasn't doing that to show that companies were evil, he was doing that to show that that's how the free market works. He followed up with this:
I noticed all of you talked about your own internal rules. Because that's what this should be about. You all get to come up with your own rules. But not because government tells you what to do. Or because government says you have to rule this way or that way. And the whole notion that somehow we should be interfering with these platforms from a legislative, governmental point of view is an anathema to the First Amendment. And really it's about the marketplace of ideas.
Kudos to Rep. Lieu. This is the kind of speech that you'd normally expect to hear from a "small government" conservative who talks about respecting the Constitution. But, in this case, it's a Democrat. And it's shameful that others (on both sides of the aisle) weren't making the same point. Instead, there was a ton of pure nonsense spewed from the Republicans at the hearing. It's hard to fathom that the following statements were made by people we've actually elected to our legislative body. There were so many dumb statements made that it's difficult to pick out just a few.
Let's start with Rep. Steve King, who has made quite a name for himself saying and repeating bigoted nonsense. Starting at about an hour and five minutes in the video, King seemed particularly concerned about traffic to Gateway Pundit, a site famous for trafficking in utter nonsense.
It's a matter of Congressional record that Gateway Pundit, Mr. Jim Hoft, has introduced information into the record that in the span of time between 2016 and 2018, he saw his Facebook traffic cut by 54%. Could you render an explanation to that?
Um... what? How the hell is it of any concern to Congress whatsoever the traffic a single site gets? And, as we were just discussing recently, traffic to lots of news sites from Facebook has dropped massively as Facebook has de-prioritized news. In that post, we pointed out that Slate was self-reporting a drop in Facebook traffic over that same period of time of 87%. Based on that, why isn't King asking about Slate's traffic dropping? Perhaps because Gateway Pundit publishes the kind of nonsense King supports and Slate points out that King is a bigot?
And... isn't that, again, kind of the point of the First Amendment? To protect news sites from having Congress play favorites?
Incredibly, King then concludes his time by first claiming he's all for free speech and free enterprise, but wonders about turning social media sites into regulated utilities.
I'm all for freedom of speech and free enterprise and for competition and finding a way that we can have competition itself that does its own regulation, so government doesn't have to, but if this gets further out of hand, it appears to me that Section 230 needs to be reviewed, and one of the discussions that I'm hearing is 'what about converting the large behemoth organizations that we're talking about here into public utilities.'
Are we living in an upside down world? A Democrat is praising the free market, profits and free speech, and a Republican is advocating for limiting free speech and in favor of turning some of the most successful US companies into public utilities? What is even going on here?
Around an hour and 18 minutes, we get our old friend Rep. Louis Gohmert, who has a fairly long and extensive history of making the dumbest statements possible concerning technology issues. And he lived down to his usual reputation in this hearing as well. It starts off by him trying to play down the issue of Russian interference in elections, by claiming (?!?) that the Russians helped Truman get elected, and then claiming that Russians had helped basically every Democratic President get elected in the past 70 years. And then spent a long time trying to complain that the platforms wouldn't tell him if Chinese or North Korean intelligence services had also used their platforms. Remember, these companies were asked to come and testify specifically about Russian use of their platforms to interfere with the election and Gohmert stepped in with this insane "what about other countries, huh?" argument:
Gohmert: I need to ask each of you. You've been asked specifically about Russian use of your platforms. But did you ever find any indication of use of your platform, utilized by the Chinese, North Korea, or any other foreign country intelligence or agency of that country. First, Ms. Bickert?
Bickert/Facebook: I would note, Congressman, that we're not in North Korea or China. In terms of whether we've seen attacks on our services, we do have -- we are, of course, a big target -- we do have a robust security team that works...
Gohmert: Well, but that's not my question. It's just a very direct question. Have you found... You don't have to be in North Korea to be North Korean Intelligence and use... We have foreign government intelligence agencies IN THIS COUNTRY. So have... It seems to me you were each a little bit vague about "oh yes, we found hundreds" or whatever. I'm asking specifically, were any of those other countries besides Russia that were using your platform inappropriately? It should be a yes or no.
Actually, no, it shouldn't be a yes or no. That's a dumb and misleading question for a whole long list of reasons. Of course, lots of other intelligence agencies are using Facebook, because of course they are. But, the entire point of this line of questioning seems to be Gohmert trying to play down Russian use of the platform, which is... odd. Especially after he started out by praising the fact that maybe the Russians might help "our side" get elected going forward.
Bickert: I don't have the details. I know we work to detect and repel attacks...
Gohmert: I know that. But were any of them foreign entities other than Russia?
Bickert: I can certainly follow up with you on that.
Gohmert: SO YOU DON'T KNOW?!? You sure seemed anxious to answer the Democrats questions about RUSSIA's influence. And you don't really know of all the groups that inappropriately used your platform? You don't know which were Russians and which were other foreign entities?
No, that's not what she's saying at all. She's pretty clearly saying that this hearing was specifically about Russian influence and that's what she was prepared to testify on. She didn't say that Facebook can't tell Russians from other entities, just that the other entities aren't the ones accused of messing with the election and thus there isn't that much relevant right now. But that's quite a deflection attempt by Gohmert.
Let's move on to Rep. Tom Marino at about an hour and a half into the video. Marino seems to have a fairly bizarre understanding of the law as it concerns defamation. He focuses on the guy from Twitter, Nick Pickles, and starts out by reading a definition of "libel." Then he asks
Have any of you considered libel? Or do you think you are immune from it?
This is an incredibly stupid question. Twitter is clearly not immune from libel. Marino's line of questioning is an attempt to attack CDA 230, which provides immunity to Twitter from liability for defamatory statements made by its users. This is an important distinction that Marino conveniently ignores as he continues to bug Pickles.
Pickles: We have clear rules that governs what happens on Twitter. Some of those behaviors are deplorable and we want to remove them immediately... So, terrorist content is one example, where we now detect 95% of the terrorist accounts we remove...
Marino: Okay, I understand that sir. But how about... we in Congress, we put up with it all the time. I know we're public officials, same with people in the movies... but do you specifically look for and address... republication can be used in a defamation case. Do you look at libel and defamation content?
I don't even know what that means. Do you look at libel content? What? How does Twitter know if something is libelous? Especially against public officials? How is Twitter supposed to make that judgment when that's what courts are there to figure out? And, for what it's worth, Twitter has been known to abide by court rulings on defamatory speech in deciding to take down that content, but Marino seems to be asking if they make an independent judgment outside of the courts of what's libelous. Which is both crazy and impossible. Pickles makes a valiant effort in response, noting how Twitter focuses on its rules -- which is all that it's required to do -- but Marino clearly seems to want to attack CDA 230 and magically make Twitter liable for libelous content on its platform. After Pickles again explains that it focuses on its rules, rather than making judicial rulings that it cannot make, Marino puts on a dumb smirk and makes another dumb statement:
With all due respect, I've heard you focus on your rules about 32 times. DO. YOU. LOOK. FOR. LIBEL. OR. DEFAMATION. IN. YOUR. COMPANY'S. OPINION?
You can't "look for libel or defamation" like that. That's not how it works. Marino is a lawyer. He should know this. The Facebook and YouTube representatives neatly sidestep Marino's silly line of questioning by pointing out that when informed of legal rulings determining "illegal" speech, they take it down. Marino doesn't even seem to notice this very specific distinction and asks "where do you draw the line?"
At an hour and forty minutes, we have everyone's favorite, Rep. Lamar Smith, author of SOPA back in the day. He spews more utter nonsense claiming conservatives have been more negatively impacted by the moves of these social media companies, and then (bizarrely) argues that Google employees forcing the company not to help surveillance activity is somehow an attack on conservatives. Excuse me? Conservatives don't support the 4th Amendment any more? Say what? But the real craziness is this line:
Google has also deleted or blocked references to Jesus, Chick-Fil-A and the Catholic religion.
I'm going to call time out here and note [citation needed] on that one, Smith. Google pretty clearly shows me results on all three of those things. I've been trying to figure out what the hell he's referring to, and I'm guessing that Smith -- in his usual Smithian nonsensical way -- is confusing Google for Facebook, and Facebook's bad filter that initially blocked a page about "Chick-fil-Appreciation Day," and some Catholic church pages. The "Jesus" blocking is also Facebook and was in reference to an ad for a Catholic university.
All of these examples were not, as Smith implies, evidence of "liberal bias" on behalf of Facebook, but rather evidence of why it's so problematic that governments are putting so much pressure on Facebook to magically filter out all of the bad stuff. That's not possible without making mistakes. And what happens is that you set up guidelines and those guidelines are then handed to people who don't have nearly enough time to understand the context, and sometimes they make mistakes. It's not bias. It's the nature of trying to moderate millions of pieces of content every damn day, because if they don't, these same idiots in Congress would be screaming at them about how they're letting the bad content live on. I mean, it's doubly ridiculous for Smith to use the Jesus example as even the guy who bought the ad, the university's web communications director, specifically said that he didn't believe it had anything to do with bias, but was just a bad decision by an algorithm or a low level staffer.
Finally (and there are more, but damn, this post is getting way too long) we get to Rep. Matt Gaetz. At around an hour and 55 minutes into the hearing, he suddenly decides to weigh in that the First Amendment and CDA 230 are somehow in conflict, in another bizarre exchange between Gaetz and Twitter's Pickles.
Gaetz: Is it your testimony or is it your viewpoint today that Twitter is an interactive computer service pursuant to Section 230 sub c(1).
Pickles: I'm not a lawyer, so I won't want to speak to that. But as I understand, under Section 230, we are protected by that, yes.
Gaetz: So Section 230 covers you, and that section says "no provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another"... is it your contention that Twitter enjoys a First Amendment right under speech, while at the same time enjoying Section 230 rights?
Pickles: Well, I think we've discussed the way the First Amendment interacts with our companies. As private companies we enforce our rules, and our rules prohibit a range of activities.
Gaetz: I'm not asking about your rules. I'm asking about whether or not you believe you have First Amendment rights. You either do or you do not.
Pickles: I'd like to follow up on that, as someone who is not a lawyer... I think it's very important...
Gaetz: Well, you're the senior public policy official for Twitter before us and you will not answer the question whether or not you believe your company enjoys rights under the First Amendment?
Pickles: Well, I believe we do, but I would like to confirm with colleagues...
Gaetz: So what I want to understand is, if you say "I enjoy rights under the First Amendment" and "I'm covered by Section 230" and Section 230 itself says "no provider shall be considered the speaker" do you see the tension that creates?
There is no tension there. The only tension is between the molecules in Gaetz's brain that seemed to think this line of nonsensical argument makes any sense at all. There is no conflict. First, yes, it's obvious that Twitter is clearly protected by both the First Amendment and CDA 230. That's been established by dozens of court rulings with not a single ruling ever holding otherwise. Second, the "tension" that Gaetz sees is purely a figment of his own misreading of the law. The "no provider shall be considered a speaker" part, read in actual context (as Gaetz did earlier) does not say that platforms are not speakers. It says that they are not considered a speaker of other people's speech. In fact, this helps protect free speech by enabling internet platforms the ability to host any speech without facing liability for that speech.
That helps protect the First Amendment by ensuring that any liability is on the speaker and not on the tool they use to distribute that speech. But Twitter has its own First Amendment rights to determine what speech it decides to keep on its site -- and which speech it decides not to allow. Gaetz then, ridiculous, tries to claim that Pickle's response to that nonsensical response is somehow in conflict with what Twitter's lawyers have said in the silly Jared Taylor lawsuit. Gaetz asks Pickles if Twitter could kick someone off the platform "for being a woman or being gay." Pickles points out that that is not against Twitter's rules... and Gaetz points out that in the Taylor case, when asked the same question, Twitter's lawyers stated (1) that Twitter has the right to do so but (2) never would.
Again, both Pickles and Twitter's lawyers are correct. They do have that right (assuming it's not a violation of discrimination laws) but of course they wouldn't do that. Pickles wasn't denying that. He was pointing out that the hypothetical is silly because that's not something Twitter would do. Twitter's lawyers in the case were, correctly, pointing out that it would have the right to do such a nonsensical thing if it chose to do so, while also making it clear it would never do that. Again, that's not in conflict, but Gaetz acts as if he's "caught" Twitter in some big admission.
Gaetz falsely then claims that Pickles is misrepresenting Twitter's position:
Right but it is not in service of transparency if Twitter sends executives to Congress to say one thing -- that you would not have the right to engage in that conduct -- and then your lawyers in litigation say precisely the opposite.
Except that's not what happened at all. Pickles and the lawyers agreed. At no point did Pickles say that Twitter did not have "the right" to kick people off its platform for any reason. He just noted that it was not a part of their policy to do so, nor would it ever be. That's entirely consistent with what Twitter's lawyers said in the Taylor case. This is Gaetz making a complete ass out of himself in completely misrepresenting the law, the constitution and what Twitter said both in the hearing and in the courthouse.
Seriously, people, we need to elect better Representatives to Congress. This is embarrassing.
While the best chance of reversing the FCC's attack on net neutrality still likely rests with the courts, an uphill effort to restore the FCC's 2015 rules via Congress appears to have taken a small step forward this week.
The Congressional Review Act lets Congress reverse a regulatory action with a simply majority vote in the Senate and the House (which is how the GOP successfully killed FCC consumer broadband privacy protections last year). And while the Senate voted 52 to 47 back in May to reverse the FCC's attack on net neutrality, companion efforts to set up a similar vote in the House have, as expected, had a hard time gaining traction thanks to ISP lobbying influence.
"The fight to keep the internet open belongs in Congress, not at the Federal Communications Commission,” said Representative Coffman. “The American people deserve to know that their elected officials, not unelected bureaucrats, are fighting for their interest. That fight begins with my bill, which will create an ‘internet constitution’ with the foundational elements of net neutrality."
“While my bill moves through the Congress, I am taking an ‘all of the above’ approach by simultaneously signing the discharge petition on the CRA, and introducing my bill” added Coffman.
A discharge petition needs 218 votes to even see floor time, and another 218 votes to pass the measure. So far however, the petition only currently has 172 likely votes -- 173 with Coffman's cooperation. It remains a steep uphill climb, and even if it passes it will need to avoid a veto by President Trump, who has yet to signal he has the faintest idea what the fight is even about.
As we've long noted, ISPs have spent the better part of fifteen years successfully (but idiotically) framing net neutrality as a partisan issue to sow debate and stall progress. Except the idea of keeping the internet a level playing field free from monopoly meddling has broad, bipartisan public support for what should be obvious reasons. The rules were a stop gap measure until somebody decided to actually do something about the lack of competition in the sector, something both parties have a long-standing habit of trying to ignore for fear of stifling AT&T, Verizon, and Comcast campaign contributions.
Coffman's bill (pdf), meanwhile, comes amidst efforts by ISPs to pass legislation they wrote in a bid to prevent tougher state or federal rules from being passed (or the 2015 FCC rules being restored in case of a court loss). Having read the bill it's weaker than the FCC's 2015 rules, carving out numerous loopholes for things like interconnection shenanigans, usage caps and zero rating, and "reasonable network management" (a term ISPs love to abuse). It also isn't likely to survive Marsha Blackburn's committee in the House, since she has her own even weaker, ISP-favored legislation she's been pushing.
It's Coffman's decision to join the CRA repeal that's more interesting, though that effort too has a long way to go before it sees any serious traction. Politicians facing re-election may want to join to avoid being vilified by activists ahead of the midterms, but most House Republicans likely deem net neutrality as too confusing and fringe of an issue for their opposition to really pose much of an existential threat.
Sprint and T-Mobile last week went before Congress to literally argue that fewer competitors in the wireless space will magically result in... more competition in the wireless space. The two companies are trying to gain regulatory approval for their latest $23 billion merger attempt, the second time in four years this particular deal has been attempted.
The companies' previous merger attempt was blocked in 2014 after regulators noted that removing one of just four major carriers would result in a proportionally-lower incentive to actually compete on price, something that's really not debatable if you've paid attention to telecom and broadband industry history. That's especially true in Canada, where consolidation to just three players has resulted in some of the highest mobile data prices in the developed world. AT&T's attempt to acquire T-Mobile in 2011 was blocked for the same reason, a move that many forget resulted in T-mobile being more competitive than ever.
"This consolidation will lead to lower prices,” T-Mobile CEO John Legere told hearing attendees. "This is actually moving from two to three,” Legere claimed, insisting that joining forces with Sprint will make a more “viable competitor” for AT&T and Verizon.
But history has repeatedly shown in telecom that claims of competitive "synergies" never actually materialize. A major reason most ISPs are so hated is because they've spent decades prioritizing growth for growth's sake over anything else, and, more often than not, fail to scale things like customer service and support proportionally because that kind of growth erodes revenues. As a result you get an endless string of telecom mergers that, like Charter's recent acquisition of Time Warner Cable, simply result in higher prices and worse service than ever before.
Sprint and T-Mobile's central thesis in selling the merger (this time around) is that Sprint can't possibly survive without merging with T-Mobile. In fact, one of Sprint's recent filings with the FCC (pdf) comically tries to go out of its way to argue just how terrible the company currently is, in stark contrast to everything the company had been saying the last few years:
"Sprint’s standalone future will not be one that allows it to be an effective competitor to Verizon and AT&T on a nationwide basis. And though Sprint’s massive cost reductions have stabilized the company’s finances and yielded positive free cash flow for the first time in many years, the company achieved that result only by shrinking the company and reducing network investment to historically low levels."
But while Sprint does have a heavy debt load (which is not uncommon in the merger-obsessed telecom sector) and has struggled to find a real brand identity (which says more about leadership than finances), the threat of its imminent demise is being amplified for strategic effect. The company's balance sheet has been improving, with the company routinely propped up by deep-pocketed Japanese owner Softbank. Meanwhile there are numerous potential partners interested in the wireless industry that could have provided a meaningful partnership (Dish, Charter, Comcast) that wouldn't have reduced competition.
Of course claiming "fewer competitors improves competition and lowers prices" isn't the only falsehood being perpetuated by the company. They're also promising that the merger will be a boon for job creation, despite numerous Wall Street analyst estimates that the deal could eliminate up to 30,000 jobs as redundant positions (especially in retail and middle management) are inevitably eliminated.
For some reason, like Charlie Brown and his damn football, America doesn't seem to ever really learn any lessons from its love affair with mindless merger mania and our love of growth for growth's sake. These deals almost always exclusively only benefit shareholders and executives, a lesson we apparently love to ignore time and time again.
Despite the President demanding -- via Twitter -- that House Republicans pass the "strong but fair" immigration bill, the House Republicans did not, in fact, pass the muscley but attractive immigration bill. The bill would have diverted $25 billion to Donald's Folly and steeply decreased the number of immigrants the nation is willing to extend citizenship to. It may have done a little good by providing another route to citizenship for children brought into the US by illegal immigrants, but that would have been undone by the removal of time limits for the detention of accompanied children.
So, it was a hearty blend of bad and worse. There were compromises made to push the few centrists onto the "aye" side but what was offered wasn't enough to sway the middle ground and wasn't harsh enough to satisfy the anti-immigration hardliners. The bill will be back again eventually, but there's no telling what will be added or subtracted before the next push to the president's desk begins.
However, there is a silver lining -- at least for those concerned about the ability of the border to swallow everyone's rights. As the EFF noted, the House's rejection of this bill meant no increase in border-related surveillance, snooping, and data harvesting.
The bill calls for increased DNA and other biometric screening, updated automatic license plate readers, and expanded social media snooping. It also asks for 24 hours-a-day, five-days-a-week drone surveillance along the southern U.S. border.
This bill would give the U.S. Department of Homeland Security broad authority to spy on millions of individuals who live and work as far as 100 miles away from a U.S. border. It would enforce invasive biometric scans on innocent travelers, regardless of their citizenship or immigration status.
As is noted in the EFF's write-up of the immigration bill, this extensive surveillance wouldn't be limited to those people lots of Americans mistakenly believe have zero Constitutional rights. It would also affect US citizens -- the sort of people everyone agrees have Constitutional rights.
And the additions were problematic from more than the civil liberties standpoint. There's been a rush to harvest biometric data, but it's being done without proper oversight, public input, or even the required Privacy Impact Assessments. Facial recognition, in particular, is a technology known to provide a ton of false positives for every successful "hit," raising the probability of wrongful arrests, detainments, and deportations.
Allowing the CBP to engage in even more drone surveillance (and not limiting where the CBP's drones can be flown) makes little sense considering the DHS Inspector General found the drones the CBP were operating were mostly useless and far from cost effective. All this would do is encourage the agency to spend more money faster with almost no return on investment.
The bill would also have codified DHS's on-again, off-again social media screening of visa applicants. The DHS admitted it does not have the legal authority to screen social media accounts of legal US citizens, but an expansive snooping program would certainly allow CBP to perform backdoor searches of US persons' communications should any visa applicant be in regular contact with American citizens. The codification would have retroactively forgiven DHS's sins and given it full authority to turn the visa application process into fishing expeditions for bored border agents.
The defeat of the immigration bill is a small victory on several fronts, but the mindset of many of its opponents appears to be that it doesn't go far enough towards creating some sort of DMZ between us and our southern neighbor. That Trump seems intent on portraying our apologetic neighbor to the north as some sort of safe haven for "bad hombres" ("bad hombrehs"?) is more than a little disconcerting, as the only previous aggression we've observed was detailed in the late John Candy's last comedy. This, however, might explain why the "papers, please" demands of CBP officers can be heard echoing in such unlikely places as New Hampshire and Maine. All we can do is hope the next attempt at shoving an immigration bill through doesn't include a few billion to brick up the northern reaches of Montana and send a flotilla of Coast Guard interceptors to the Great Lakes.
Four years ago, we wrote about the House voting to keep itself ignorant on technology, and unfortunately, I can now basically just rerun that post again, with a few small tweaks, so here we go:
The Office of Technology Assessment existed in Congress from 1972 until 1995, when it was defunded by the Newt Gingrich-led "Contract with America" team. The purpose was to actually spend time to analyze technology issues and to provide Congress with objective analysis of the impact of technology and the policies that Congress was proposing. Remember how back when there was the big SOPA debate and folks in Congress kept talking about how they weren't nerds and needed to hear from the nerds? Right: the OTA was supposed to be those nerds, but it hasn't existed in nearly two decades -- even though it still exists in law. It just isn't funded.
Rep. Mark Takano (in 2014 it was Rush Holt) thought that maybe we should finally give at least a little bit of money to test bringing back OTA and to help better advise Congress. While some would complain about Congress spending any money, this money was to better inform Congress so it stopped making bad regulations related to technology, which costs a hell of a lot more than the $2.5 million Takano's amendment proposed. Also, without OTA, Congress is much more reliant on very biased lobbyists, rather than a truly independent government organization.
A quartet of tech experts arrived at a little-noticed hearing at the U.S. Capitol in May with a message: Quantum computing is a bleeding-edge technology with the potential to speed up drug research, financial transactions and more.
To Rep. Adam Kinzinger, though, their highly technical testimony might as well have been delivered in a foreign language. “I can understand about 50 percent of the things you say,” the Illinois Republican confessed.
But, alas, like so many things in Congress these days, the issue of merely informing themselves has become -- you guessed it --partisan. The amendment failed 195 to 217 on mostly partisan lines (15 Republicans voted for it vs. 211 against, and only 6 Democrats voted against it, while 180 voted for it). If there's any silver lining, that's slightly better than in 2014 when a similar vote failed 164 to 248. So... progress?
Either way, when Congress is ignorant, we all suffer. That so many in Congress are voting to keep themselves and their colleagues ignorant should be seen as a problem.
The FBI may have overplayed its hand in the encryption game, but that doesn't mean someone further down the legislative food chain won't suffer from a sudden burst of enthusiasm for destroying encryption in the wake of a local tragedy. The same DC legislators looking to prevent federal legislation mandating encryption backdoors is taking the fight to the state level. Or, rather, looking to disqualify legislative contestants before they even enter the ring.
A bipartisan group of lawmakers is renewing a push for legislation to block states from mandating that technology companies build “backdoors” into devices they produce in order to allow law enforcement access to them.
The measure is designed to preempt state and local governments from moving forward with their own laws governing encryption before the federal government acts on the issue.
The bill would prevent backdoor mandates, as well as encryption-subverting technical assistance demands or encryption bans.
A State or political subdivision of a State may not—
(1) mandate or request that a manufacturer, developer, seller, or provider of covered products or services—
(A) design or alter the security functions in its product or service to allow the surveillance of any user of such product or service, or to allow the physical search of such product, by any agency or instrumentality of a State, a political subdivision of a State, or the United States; or
(B) have the ability to decrypt or otherwise render intelligible information that is encrypted or otherwise rendered unintelligible using its product or service; or
(2) prohibit the manufacture, sale or lease, offering for sale or lease, or provision to the general public of a covered product or service because such product or service uses encryption or a similar security function.
This bill was originally introduced in 2016, back when the FBI was just getting its anti-encryption electioneering underway, but this time around appears to have a larger list of bipartisan sponsors.
Since then, things have changed considerably. The FBI's claimed number of locked devices swelled dramatically, from a little under 800 to nearly 8,000 in less than two years. Its "going dark" rhetoric increased pace along with the increase in number of inaccessible phones.
But the biggest change in the last couple of years -- a time period during which this legislation hasn't moved forward -- is the FBI's self-own. Forced to account for its growing number of locked devices given the multiple options available to crack the phones or obtain evidence located in the cloud, the agency finally decided to take a look at all the phones it had amassed. And it found it didn't have nearly as many as it had claimed. The 8,000 phones turned out to be somewhere between 1,000-2,000 (likely around 1,200 devices). The FBI blamed it on faulty software and has begun issuing corrections to the many, many public statements it published about the "going dark" problem.
Given the FBI's disastrous discovery, the time would seem to be perfect to push forward with pro-encryption legislation. A new bill is on the way -- likely a carbon copy the 2016 proposal. It should pair nicely with another bill introduced in May, which would prevent federal agencies or courts from demanding companies create backdoors or otherwise weaken their encryption. The only exception would be for mandates or court orders stemming from CALEA, which would limit assistance demands to the interception of communications (with wiretap warrants), not the contents of locked devices.
If both move forward, phone users will be protected on both ends from both levels of government. No backdoors, and no demands phone manufacturers kick down the front door so law enforcement can carry out their search warrants.
It's apparently time for a legislative update to The War on Cops. Apropos of nothing, legislators from both sides of Congress have flung some more "cops are more equal than others" legislation into the ring. Senators Orrin Hatch and Heidi Heitkamp have joined their House counterparts in attempting to make any crime against a police officers a hate crime. From Hatch's press release:
Protect and Serve Act of 2018:
The legislation adds a new section to Chapter 7 of Title 18 that:
Makes it a federal crime to knowingly cause bodily injury to any person, or attempt to do so, because of the actual or perceived status of the person as a law enforcement officer;
Prescribes a penalty of up to 10 years imprisonment for a violation, or up to a life sentence in cases that result in death or involve kidnapping;
Requires that the offense have a federal nexus;
Requires certification by the Attorney General that a state has waived jurisdiction or that federal prosecution is in the public interest and necessary to secure substantial justice; and
Requires the Attorney General to issue guidelines for determining whether a crime was committed because of the actual or perceived status of person as a law enforcement officer.
Why do we need this law? We don't. But don't let that stop the bill's sponsors from arguing otherwise.
“In rural and urban areas alike, law enforcement officers face heightened risk every time they put on their uniforms,” Heitkamp said.
They actually face historically low risks, with last year's death stats being even lower than the year before. But let's not let actual death totals get in the way of increasing penalties for anyone who has the misfortune of dealing with cops. It doesn't just cover murder -- even though "targeted killings" are the main talking point. It covers any bodily injury, which makes it perfect for stacking charges on arrestees. Anything from an aborted fist swing to an accidental bump can be turned into an assault charge and this law gives federal prosecutors the chance to escalate the side effects of resisting arrest into a federal prison sentence. And it's a great way to keep abused citizens from filing complaints, as Radley Balko explains:
What harm could come of this bill? An assault on a police officer charge is often used a cudgel — it’s a way of dissuading legitimate victims of police brutality from filing complaints. If such an assault charge could soon come with an additional federal charge punishable by up to 10 years in prison, that cudgel grows by about 10 sizes. It gets awfully persuasive.
Lest there's any doubt this bill is a "hate crime" bill, the press release makes it crystal clear.
Since May 2016, several states have enacted laws that make attacking police because of their occupation a hate crime. The Protect and Serve Act takes a similar approach and is modeled after the federal hate crime statute, 18 U.S.C. § 249.
It's true. Several stupid state legislatures have decided to elevate some of the most powerful public servants in their jurisdictions to the status of "protected victim." Never mind the reason most hate crime laws are enacted is to bring more power to the powerless -- a (clumsy) way to address criminal acts predicated on hatred of someone's race or sexual orientation. Police officers are neither a race nor a sexual orientation. There is no conscription involved in a law enforcement career. It's strictly voluntary, unlike the personal traits involved in most hate crime laws.
It's not as though there's a lack of aggressive prosecution when officers are killed or injured. There's never a shortage of charges to be brought or a dearth of zeal to see this criminal act punished. Many states already provide sentencing enhancements if the crime victim is a police officer. This bill simply gives the federal government the option to swoop in and punish certain criminals more harshly, ignoring any lack of "Blue Lives Matter" state statute.
It's a stupid legislative proposition built on the ridiculous delusion that there's a War on Cops being waged day in and day out when it's really a lot of isolated incidents scattered across an ever-moving timeline. Being a cop in America is safe. Officers do not suffer for a lack of physical or legal protections. They are some of the most-protected individuals in this nation. A law like this is more than redundant and needlessly punitive. It's an implicit message sent to all Americans, telling them their public servants -- at least these ones -- are better and more deserving of protection than they are.
The FBI continues its push for a solution to its "going dark" problem. Joined by the DOJ, agency head Christopher Wray has suggested the only way forward is a legislative or judicial fix, gesturing vaguely to the thousands of locked phones the FBI has gathered. It's a disingenuous push, considering the tools available to the agency to crack locked devices and obtain the apparently juicy evidence hidden inside.
The FBI hasn't been honest in its efforts or its portrayal of the problem. Questions put to the FBI about its internal efforts to crack locked devices are still unanswered. The only "new" development isn't all that new: Ray Ozzie's "key escrow" proposal may tweak a few details but it's not that far removed in intent from the Clipper Chip that kicked off the first Crypto War. It's nothing more than another way to make device security worse, with the only beneficiary being the government.
The FBI's disingenuousness has not gone unnoticed. Efforts have been made over the last half-decade to push legislators towards mandating government access, but no one has been willing to give the FBI what it wants if it means making encryption less useful. A new bill [PDF], introduced by Zoe Lofgren, Thomas Massie, Ted Poe, Jerry Nadler, Ted Lieu, and Matt Gaetz would codify this resistance to government-mandated backdoors.
The two-page bill has sweeping safeguards that uphold security both for developers and users. As the bill says, “no agency may mandate or request that a manufacturer, developer, or seller of covered products design or alter the security functions in its product or service to allow the surveillance of any user of such product or service, or to allow the physical search of such product, by any agency.”
This bill would protect companies that make encrypted mobile phones, tablets, desktop and laptop computers, as well as developers of popular software for sending end-to-end encrypted messages, including Signal and WhatsApp, from being forced to alter their products in a way that would weaken the encryption. The bill also forbids the government from seeking a court order that would mandate such alterations. The lone exception is for wiretapping standards required under the 1994 Communications for Law Enforcement Act (CALEA), which itself specifically permits providers to offer end-to-end encryption of their services.
The Secure Data Act shouldn't be needed but the FBI and DOJ have forced the hand of legislators. Rather than take multiple hints dropped by the previous administration, the agencies have only increased the volume of their anti-encryption rhetoric in recent months. Maybe the agencies felt they'd have the ear of the current administration and Congressional majority, but investigations involving the president and his staff have pretty much killed any "law and order" leanings the party normally retains. This bill may see widespread bipartisan support simply because it appears to be sticking it to the Deep State. Whatever. We'll take it. Hopefully, this makes a short and direct trip to the Oval Office for a signature.
