There's a Growing Backlash Against Tech's Infamous Secrecy. Why Now?

from the the-time-has-come dept

“How Silicon Valley’s Tech Giants Use NDAs to Create a Culture of Silence,” stated a Business Insider piece on July 27, 2021. “To understand how Non-Disclosure Agreements (NDAs) have come to form the backbone of Silicon Valley's culture of secrecy,” explained Matt Drange, “Insider reviewed 36 agreements shared by tech workers.” It showed how management mistakes and misconduct hide in the silence of those NDAs. “The secrecy is by design … leaving the true extent of wrongdoing in the workplace a mystery.”

“The use of NDAs, including in trivial or routine circumstances like visiting a tech office, is ironic in an industry that praises openness and transparency,” elaborated Shira Ovide in her New York Times newsletter. She called it an unnecessary “exercise of power.”

Yael Eisenstat, a former Facebook employee, criticized this power in a Washington Post OpEd on August 3, 2021. “A handful of technology companies have unprecedented - and unchecked - power over our daily interactions and lives. Their ability to silence employees exacerbates that problem, depriving the public and regulators of a means to analyze actions that affect our public health, our public square, and our democracy.”

This recent backlash against tech’s infamous secrecy is long overdue. It became possible as a result of a broader uprising against Big Tech, AKA the Techlash (tech-backlash). But for decades, it wasn’t the case. In the power relations between the tech giants and the media, journalists’ access to sources within those companies was tightly controlled, and “access has always been a bargaining chip.”

The Roots of Tech’s Secrecy Culture

In the mid-1990s, when the dot-com boom started to gather steam, Silicon Valley went from semiconductor fab plants in South San Jose to an industry of hot technologies. The tech coverage focused on the brilliance of the tech CEOs who were daring to take on established industries and old hierarchies. The consumers wanted a ‘backstage pass’ to those rock stars. It was also all that the tech reporters wanted, access.

But the common experience for tech journalists was that if their coverage were critical or hard on the companies, their level of access would either go on hiatus or disappear altogether. Many of them complied with this tradeoff.

The most secretive company was always Apple. Tim Cook once said, “One of the great things about Apple is: We probably have more secrecy here than the CIA.”

By keeping the communication channels closed, the companies had leverage over those to whom they give access. “If you want access to Apple, you can’t upset them,” a Gizmodo reporter described. “Apple and Google are masters of grooming reporters to do what they want and provide access only to folks they think will make them look good,” the freelancer journalist Rose Eveleth explained.

The companies also increased their tendency to brief reporters “on background.” In this method, the tech PR teams and companies’ employees agree to talk, but the reporter cannot quote anything said in the conversation. Thus, the information cannot be transmitted to the readers. The experience can be infuriating, as Adrienne LaFrance from The Atlantic described: “I got through an entire interview with a product manager at Apple, only to be told, after the fact, that it was presumed to be ‘on background.’ ‘Everyone knows this is how we do things,’ a spokesman explained apologetically.”

Tech journalists and bloggers acknowledged getting used to “not having an oppositional journalistic culture.” Those who were asking the tough questions had to walk a tight rope when the combination of access and unfavorable coverage was quite rare.

The Intensifying Revolt During the Techlash

The turning point in tech journalism followed Donald Trump’s victory in November 2016. According to research about the emerging tech-backlash, the pivotal year was 2017 as a result of various tech scandals, including foreign election meddling; disinformation wars; extremist content, and hate speech; privacy violations; allegations of an anti-diversity, sexual harassment, and discrimination culture. The accumulation of those issues created a profound sense of concern around content moderation, algorithmic accountability, and monopoly power. The companies’ secrecy became a means of evading responsibility.

“Corporations such as Apple, Google, and Uber have become infamous for their secrecy and unwillingness to comment on most matters on-the-record. Tech reporters, myself very much included, have not done enough to push them to do otherwise,” claimed Brian Merchant from Vice. He called his fellow journalists to push back against these ossified norms: “I am no longer going to listen to a public relations representative try to change my mind ‘on background’ with unquotable statements attributable to no one. No reporter should, not when the stakes are as high as they are.”

His article, from July 2019, generated a ‘call to arms’ by leading journalists, unwilling to propagate it any longer. It reflected a more profound change in the power dynamics between Big Tech and the journalists, who had enough. Later on, the Covid-19 pandemic acted as an accelerator, and the Tech vs. Journalism battle intensified into a full-blown “cold war.” The stakes were even higher than before.

In June 2021, a Mother Jones piece took the allegations against the PR tactics to the next level. It focused on Amazon and described how it “bullies, manipulated and lies to reporters.” Amazon’s press team was accused of engaging in deceitful behavior. The tech reporters also pointed out that “Amazon has recently begun providing more access before a story is published,” but complained it is done “in limited and often unhelpful or unrelated ways, by offering things like off-the-record or background interviews with the press team or approved employees.”

It is often the case that the more important stories are coming from “un-approved” employees. This is how Casey Newton revealed Facebook’s content moderators’ working conditions in The Trauma Floor or Bodies in Seats exposés. The workers openly described how they developed severe anxiety while still in training and struggled with trauma symptoms long after they left.

Other tech employees, who experienced a reckoning around their companies’ role in society, also started approaching the reporters with allegations of corporate misdeeds. Some of them didn’t speak anonymously but instead put their name on it, agreeing to full exposure. The fact that whistleblowers experienced legal risks, retaliation, and emotional scars did not stop additional workers from joining their colleagues. Breaking their NDAs or handing them to a reporter are parts of this growing trend of employee activism.

“You can’t have it both ways,” Scott Thurm from Wired explained in an interview. “If you don’t give us access, then, of course, we are going to rely on other people to tell the story.” The current story is not the one the tech companies want the media to tell. However, in the Techlash, it is precisely what the media is doing.

Dr. Nirit Weiss-Blatt is the author of The Techlash and Tech Crisis Communication

Filed Under: accountability, big tech, nda, secrecy, techlash, transparency

Daily Deal: The 2021 Learn to Code with React Bundle

from the good-deals-on-cool-stuff dept

The 2021 Learn to Code with React Bundle has 9 courses to help you get a head start on mobile and app development. Courses cover React (an efficient and flexible JavaScript library for building user interfaces) and Redux (a predictable state container that helps you manage the data your pages display), which are two tools that play a key part in building professional, well-functioning apps. The courses feature lessons and hands-on assignments to help you learn the concepts. The bundle is on sale for $25.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

Devin Nunes' Deposition Goes Off The Rails, As He Keeps Suing (And Actually Gets A Minor Victory In One Suit)

from the omnibus-post dept

It's getting difficult to keep up with all of the many lawsuits involving Devin Nunes and his family against the media -- and that statement alone should raise your eyebrows quite high. As someone who has sworn to protect the Constitution (which includes the 1st Amendment), Nunes seems very interested in using the judicial system repeatedly to intimidate and silence critical reporting from the press. This post will cover three separate lawsuits (out of a much longer list of lawsuits) in which things happened this month. First off, he's filed yet another lawsuit, this time against NBC Universal over claims that Rachel Maddow made defamatory remarks about him. He's suing in Texas, which seems like an odd choice for many reasons. After all, he's a Congressional Representative from California. NBC is based in New York. Many of his previous lawsuits have been in Virginia. Honestly, the complaint makes the most half-hearted attempt to explain why Texas is the proper venue, stating "MSNBC is at home in Texas." What does that even mean? MSNBC is based in New York.

Oh, and the other oddity in choosing Texas? Texas actually has a semi-decent anti-SLAPP law.

That said, there are elements of the MSNBC case that may actually be more challenging for MSNBC. The lawsuit is over statements by Rachel Maddow that may have been false, regarding questions about what Nunes did with a package sent by an accused Russian agent. Nunes claims he followed the proper protocols for the handling of such a package, alerting the DOJ and handing it over the the FBI. Maddow accused him of not doing that. Still, to be defamatory, Nunes will have to show that Maddow knew what she was saying was false or had very strong reasons to believe they were false. In the complaint, Nunes's lawyer, Steven Biss, points to some Breitbart articles as proof, which... does not show that Maddow knew them to be false. However, I will note, that of all the many wacky Biss/Nunes lawsuits, this one actually reads marginally stronger than all the others. That's progress, I guess.

Separately, Nunes and Biss actually had a minor victory in another lawsuit -- one filed in November last year against the Washington Post (not the first time Nunes has sued the Washington Post). This lawsuit argued that two marginally incorrect statements were defamatory, which seemed ridiculous. The judge, however, has taken a very broad reading of the article, and finds that there are possible readings that are defamatory, and at least a plausible argument of actual malice in the fact that the underlying mistake in the article -- regarding Nunes' position regarding claims of the Obama administration surveilling Donald Trump during the 2016 campaign -- had been covered accurately in the Washington Post at an earlier date. And thus, there's enough in here to consider actual malice:

In the article at issue here, the Post reported that Nunes made that baseless claim himself. A newspaper’s own prior (and correct) reporting that is inconsistent with its later (and incorrect) reporting could certainly give the paper reason to seriously doubt the truth of its later publication—just as a source’s pre-publication recantation may be evidence that a publisher had reason to doubt the source’s original claims....

The Post urges the Court to conclude that its November 9, 2020 article merely misattributed the baseless claims to Nunes (rather than to President Trump) and was therefore a “simple misstatement of the Post’s prior reporting.”... That may very well be true. But at this stage in the proceedings, where the Court is limited to the allegations in the Amended Complaint and the reasonable inferences that can be drawn from them, the Court cannot determine what in fact led to the incorrect statements in the article.

The judge refuses to dismiss the defamation claims, and will allow the case to move forward. This does not mean that Nunes is likely to win, but it will be costly for the Washington Post. They will have to go through discovery, and then can argue there's no actual malice with additional evidence later (at which point they have a higher likelihood of succeeding). Nunes' supporters have been cheering this on, and acting like some great evils will be outed through discovery, which... is generally not how this works.

However, that does take us to the final story, which is truly ridiculous. In the long-running saga involving Nunes' family's farm's defamation lawsuit against Hearst publications, Esquire, and reporter Ryan Lizza, something truly bizarre happened last week. We had discussed how the case seemed to go off the rails earlier this summer as the two sides fought over depositions.

And it went even more off the rails last week at a deposition involving Nunes himself. Remember, Nunes' own lawsuit over the article was dismissed, but a tiny, tiny part of his family's suit lives on. However, Nunes was deposed last week, and according to a filing from Steven Biss on Friday, it did not go well. Biss claims that the lawyer for Hearst interfered with the deposition saying that lawyer "unceremoniously interrupted, threatened and stopped" the Nunes deposition.

Biss claims that this was "obstruction" as well as "unethical" and finally claims (somewhat laughably) that "it violates every tenet of the Federal Rules of Civil Procedure and the First Amendment." It's rather rich for Biss -- who regularly makes a mockery of the 1st Amendment via his defamation lawsuits -- to argue that a rather understandable objection to attempts to expose protected information "makes a mockery of the 1st Amendment."

Biss helpfully includes the relevant transcript of the deposition which... does not appear to make Biss/Nunes look good. Indeed, it seems to show how Hearst's lawyer was doing exactly the right thing.

At issue is that the reporter, Ryan Lizza, turned over some of his reporting notes and recordings as part of the discovery process, but those items were put under a protective order, saying that it is for the attorney's eyes (and ears) only. This makes sense. Reporters need to be able to protect their sources, and turning them over in a lawsuit should include a protective order to stop them from being viewed or listened to by opposing parties... or those who aren't even parties in the case. Again, in this case, Nunes' himself is not a party to the suit, but is being deposed as "a witness." It seems fairly evident that he should not be able to see Lizza's notes nor hear his reporting recordings. Yet, that's exactly what Biss attempted to do in the deposition. Hearst's lawyer, Jonathan Donnellan immediately objected.

BY MR. BISS:

Q. Counsel asked you during the deposition whether you had ever listened to the audiotapes that Mr. Lizza produced. I think you said no. I want to play two of those audiotapes for you and get your response --

MR. DONNELLAN: Hold on, Steve, I'll object to that. That goes beyond the scope of my examination. I did not ask the Congressman today about any matters that were covered by the protective order in this case, and he did not testify as to the substance of any matters covered by the protective order in this case, and I want it to stay that way.

So that's beyond the scope of the examination, so I object to any attempt to introduce to him or to expose him to any of the evidence that's covered by the protective order.

From there, things get pretty crazy, with a lot of it just being performative nonsense. Biss insists that he should be able to play the recordings, and Donnellan correctly points out that you can't undo that once it's done, and he believes it violates the protective order. And then, Nunes just starts butting in and (incorrectly) insisting that Biss can ask him anything. Anything labeled "THE WITNESS" is Nunes:

THE WITNESS: Aren't I the one being deposed, doesn't my lawyer have a right to ask me questions? You get to end it without my lawyer having time to ask me questions, is that how this works?

MR. DONNELLAN: It's beyond the scope of the examination and its evidence that you're not entitled to hear, Congressman.

MR. BISS: Why isn't he entitled to hear it?

MR. DONNELLAN: It's governed by the protective order.

And then... it just gets more and more ridiculous. Nunes then started to build up a head of steam. Biss claims that just because Donellan asked if Nunes had heard the recordings (which Nunes said he did not), that now means that Biss can play Nunes the recordings (which, again, are under a protective order). Nunes seems to think he's entitled to it all, and he has some, uh, very interesting ideas about what rights he has to information in these situations:

THE WITNESS: You also asked me about some documents, and I said no, I'd like to see them. So, I have that on my testimony to you, that I would like to see them. If they exist, what you're asking me, I have every right to see them. If not, there needs to be transparency in this process. Because if you're hiding something from me, like you hid my response of my subpoena, that's completely outrageous. You can't do that.

MR. DONNELLAN: Steven, if you look at--

THE WITNESS: You have to show me. You brought it up. If they exist, I get to see them. You don't get to ask me questions about things that you know and I don't. You did it once, you got caught, now you're doing it again. So, now I find out there are audiotapes and there's -- are there documents? What kind of documents have I not see for this -- for this --

There's some back and forth between Biss and Donnellan regarding the protective order, and then suddenly Nunes jumps in to -- I kid you not -- "object." Then he claims that he's going to go to the judge directly himself. That's not how any of this works, but okay.

THE WITNESS: Wait, I object to that. I have a right, this is my deposition. I totally object to that. They definitely -- I do have a reason to know. You've stat on this deposition going through conspiracy theory after conspiracy theory after conspiracy theory, whether it's who's paying lawsuits, or frivolous ethics violations, and then you do that bogus little game on me where you show me a subpoena and then play some game like I haven't complied, and now I find out that you had it sitting next to you there as one of the exhibits.

You asked me if I had seen some type of documents. I said no, but I'd like to see them, if I want to see Lizza's notes or something like that. If there's notes you're damn right I want to see them. And it's wrong, it's not transparent, it's totally corrupt, and I'm going to the judge. I want to go to the judge myself. And I'm not ending this deposition. I want Steve to continue to ask me questions.

MR. BISS: You asked him a question --

(Speaking simultaneously)

THE WITNESS: Who do the hell do you think you are?

The sheer entitlement oozing out of Nunes in that exchange is quite eye opening, isn't it? And while he claims it's a conspiracy theory about who is funding all of these lawsuits, as far as I can tell there still hasn't been any public explanation, and there was a request from a watchdog group for the Congressional Ethics Office to investigate if it's being done legitimately.

Biss then starts grandstanding, claiming that Donnellan is trying to hide the audiotapes from becoming public as if that's some conspiracy, rather than a key part of journalism. Not revealing journalist sources is not about secrecy. It's how you have effective journalists who can actually find out things that those in power would like to remain secret. Forcing a journalist to reveal their sources is not about transparency and accountability -- it's the opposite. It acts as an intimidation system to silence whistleblowers.

It goes back and forth this way over and over again, with Donnellan pointing out repeatedly that if Biss' actual concern is about Lizza's audiotapes being made public, the proper place to do that is before the judge to remove the protective order and unseal them -- not to just randomly play them to Rep. Nunes. There are so many back and forths on this it's not worth it to cover them all, but here's a sample that certainly suggests this is much more about getting a narrative out into the public about there being some sort of "hidden" information by Lizza and Hearst that "they just won't tell you," rather than doing what's right here.

MR. BISS: This witness has a right to know what's on those audiotapes, just like the public does.

MR. DONNELLAN: No, he does not.

MR. BISS: The public has a right --

MR. DONNELLAN: It is subject to a court order --

(Speaking simultaneously)

MR. DONNELLAN: It's subject to a court order and it should be taken up with the court.

MR. BISS: Jon, what I find most astounding is, you represent a member of the press, and here we have a classic example, maybe another classic example of the press trying to keep the truth from the people, and including this witness, trying to keep the truth from this witness. And he's entitled to know what's on the audiotapes and to respond to what's on the audiotapes, as part of his testimony in this case, including on the question of damages, on the question of --

MR. DONNELLAN: This witness is not even a party to this case --

MR. BISS: He's a witness.

MR. DONNELLAN: -- Steve.

MR. BISS: He's a witness. He's a witness and --

MR. DONNELLAN: He has not entitlement under this order to have access to these materials. If you would like to have a discussion offline about lifting the protective order so that all materials subject to the protective order are disclosed, let's have that discussion.

But for right now, we have a protective order, it's in place, it's signed by the judge, and if you were to play this tape right now it would be a violation of that order.

At that point, Biss brings out his proverbial fainting couch.

MR. BISS: Well, I can tell you this, I am-- I'm shocked by this response. I'm shocked by it, but I'm not surprised. And I'm not going to put myself or my clients, or the witness, in the position of violating a federal court order. I'm not going to give you the satisfaction of preparing a motion for sanctions, but I will tell you this:

We are definitely, definitely going to the judge on this, and we're going to seek attorney's fees and costs for you tying up this deposition.

It goes on in this way for a while, with Biss repeatedly mischaracterizing the point Donnellan is making, and even accusing him of threatening Biss.

And, of course, that gets Nunes himself worked up into a frenzy as well:

THE WITNESS: So, just so I'm clear, so now, Steve, you don't get to ask me any questions, and anything that he asked of me, he gets to decide whether or not it's relevant or not. So, I'm being treated differently than all the other people that got deposed, which is totally ridiculous and wrong.

And I don't know what the hell you guys at Hearst are trying to cover up, but you asked me about audiotapes, you asked me about notes, you asked me about documents, so I get a right to see those documents and hear those tapes, that I now know exist. And if not, you're keeping them from me, a witness, who you've made a witness. And you're the one that called me for a deposition, not Steve.

You asked me 90 percent of questions that are not relevant at all to this case, that are completely just fishing, things that you want to try to push out to all your fake news people. And now you're threatening my lawyer with me on the line. You threatened me a couple times with going to the judge. And then you said I didn't answer your questions and you're going to the judge, so you're full of threats.

But I know this much, those tapes need to get out. If you continue to hide them, I don't know what my legal remedies are, but as far as I'm concerned, this deposition is not complete because of your illegal cover up and activity here, that continues to cover up your lies for the sex predator that you sent out to harass my family.

And now there's actual tapes that exist of this? I've never heard of them. So, why do I not get to hear them? I don't know what the court's going to say about this, but this seems totally unfair, that my lawyer doesn't get to ask me any questions. This is absurd. I don't know what game you think this is, but maybe you should send ICE out to Hearst Winery and Hearst ranch or something. What a joke.

Almost everything Nunes says above is either wrong or misleading, though the most concerning seems to be him -- the former head of the House Intel Committee, and current ranking member of it -- appearing to potentially suggest that he can send ICE out Hearst properties. But as for the rest, the nature of the deposition is that the lawyer who called it does get to ask questions, but that doesn't mean that the lawyer for the other side (who is also the lawyer for the witness) gets to reveal stuff that is under a protective order.

There's more back and forth, and Donnellan says to wrap things up and tells Biss to take it all up with the judge, leaving Biss to trot out this inane statement:

MR. DONNELLAN: No, no, no, no, if you can get off your soapbox right now, I think we have said what we have to say for the record, let's close the deposition, we can take it up with the court, and anything that you want to say to the court in terms of playing attorneys' eyes only material that was not covered by this deposition, you can make those arguments to the court.

MR. BISS: Hey, Jon, so much for the First Amendment.

I am unaware of any reading of the 1st Amendment that requires the exposure of content that was put under a protective order by a judge to a witness in a case, but perhaps I'm missing something. I'm also unaware of any reading of the 1st Amendment that requires a deposition to continue, but again, I may have missed the proper precedent. Unfortunately, Biss doesn't do much in the way of citing one in his motions to the court. The only citations are to broad statements in cases regarding how the litigation process is "a search for truth." And while that may be true, that does not speak to the practice of revealing the content of something under a protective order.

Finally, rather than type it out like I typed out all of the above quotes, I'll just screenshot how the deposition closes, because it's just the perfect closing. I want John Oliver to get people to re-enact this deposition.

The judge has already seemed somewhat annoyed about how this case is going, so it will be interesting to see how he responds to all of this...

Filed Under: depositions, devin nunes, jonathan donnellan, protection order, rachel maddow, reporter's notes, ryan lizza, steven biss
Companies: esquire, msnbc, nbc, washington post

California Regulators Say T-Mobile Lied To Gain Sprint Merger Approval

from the synergies dept

To gain regulatory approval for its $26 billion merger with Sprint, T-Mobile made numerous promises. One was that the deal would immediately create jobs (there've been 5,000 layoffs so far). Another was that the company would work closely with Dish Network to help them build a fourth wireless network that would replace Sprint, theoretically "fixing" the reduction in competition the deal created. As predicted, that plan isn't working out well either.

Dish and T-Mobile have been fighting like cats and dogs since the deal was finalized. Instead of helping Dish Network grow, T-Mobile has been poaching Dish customers with promotions specifically targeting Dish. T-Mobile also promised to keep its older 3G, CDMA network operational for Dish to use until 2023 (giving it time to build out its own 5G network), but Dish has been accusing T-Mobile of turning that network off on January 1, 2022, far earlier than originally promised. Dish argues that millions of its Boost Mobile branded wireless subscribers could lose access to service in the new year.

This week California regulators sided with Dish and effectively accused T-Mobile of lying to gain merger approval:

"T-Mobile's false and misleading statements under oath indicated, among other things, that T-Mobile would make its CDMA network "available to Boost customers until they were migrated to Dish Network Corporation's LTE or 5G services" and that Dish would have up to three years to complete the migration, the ruling said. The CPUC can impose penalties against T-Mobile of up to $100,000 for each offense."

In short Dish says T-Mobile simply isn't living up to its merger commitments. In turn, a T-Mobile blog post effectively accuses Dish is just making everything up, and insists Dish is simply too cheap to give its wireless users discounted 4G and 5G phones to avoid problems when T-Mobile's 3G network shuts down. California regulators, including Administrative Law Judge Karl Bemesderfer and a CPUC commissioner, appear inclined to believe Dish Network based on their review of T-Mobile's pre-merger promises:

"Their ruling said there is "a reasonable basis to conclude that T-Mobile... misrepresented material facts and misled the commission" with statements under oath. The ruling said that when the CPUC allowed the merger, it "relied on the specific false statements, omissions, and/or misleading assurances T-Mobile gave regarding its use of [Sprint's] PCS spectrum and its repeated references to a three-year customer migration period without a degraded experience... it appears that these false statements, omissions and/or misleading assurances and the related time references were intended to induce the commission to approve the merger."

Again, simply blocking this deal and finding some other way to prop up Sprint (without eliminating a direct competitor) was always the simpler, cleaner, option. Instead, the Trump DOJ and FCC constructed this elaborate and likely doomed alternative which (ironically for a party with a purportedly "hands off" and "government never works" mindset), involves having government try to nanny a cumbersome arrangement to fruition for the better part of a decade. With Dish consistently losing both wireless and TV subscribers, it's not clear Dish will even remain viable enough for that to work.

Dish is a company with no experience in wireless, with a history of being cheap and difficult to work with, that has to not only build out a world class 5G network in a few years, but has to make a network so popular with consumers it successfully leeches subscribers from AT&T, Verizon, and T-Mobile. And it has to do it without financially imploding as it continues to hemorrhage wireless and TV subscribers. And US regulators, not exactly the model of consistent oversight, would need to hold all companies involved meaningfully accountable should they miss build-out metrics.

I still tend to think the entire deal was performative theater providing flimsy justification to approval a deal experts made very clear would reduce competition, raise prices, and harm jobs. It was pushed by folks whose only real interest was reducing competition so the remaining three players could inevitably jack up prices. And while I do think Dish is making a good show of it (because they have to), I still tend to think this could end with Dish selling its trove of valuable spectrum (once deal restrictions end), making tens of billions, then throwing a few peanuts at any flimsy regulatory penalties on their way to the exit.

Filed Under: antitrust, california, competition, doj, fcc, jobs, layoffs, lies, review
Companies: dish, sprint, t-mobile

Court Orders Injunction Against RomUniverse To Permanently Shut Down, Destroy Nintendo ROMs

from the the-end dept

What a ride for RomUniverse and its owner, Matthew Storman. By way of background, 2019 saw Nintendo start an all out assault on ROM sites, websites where users could download ROMs of old Nintendo games to play on emulators. When the company set its eyes on RomUniverse, Storman attempted to crowdfund a legal defense, which failed, only to represent himself in court and make a lame argument that somehow first sale doctrine allowed him to commit mass copyright infringement. When that all failed miserably and RomUniverse lost in court, Storman was ordered to pay $2.1 million in damages in monthly $50 installments. He failed to make even those payments.

And so now this all comes to an unceremonious end, with Nintendo asking the court for a permanent injunction on RomUniverse and that injunction being granted.

A California court has ordered RomUniverse owner Matthew Storman to keep the website permanently offline and to destroy all illegal Nintendo ROMs.

As reported by TorrentFreak, he has until August 17 to comply with the order. The publisher had filed a request for a permanent injunction in May to keep the website offline, but the court at the time denied it. Nintendo however asked that the decision be reconsidered in June as Storman didn't specifically dispute that the website would be revived.

To be clear, everyone in this story is somewhere on the spectrum of dumb. Storman's defenses were laughable and the fight he attempted to put up in court pitiful. When Nintendo specifically brought evidence that Storman had been directly involved in some of the infringing content either appearing on his site, or with him pushing rewards for uploaders to induce them, his argument of first sale doctrine was incredibly weak.

Nintendo, for its part, has buried what mostly amounts to a current non-threat. Nintendo's sales of older consoles and older games, including on new consoles, has been wildly successful. It buried this site not because it acted as some major threat to Nintendo, but rather because it could. That is very much the Nintendo way, as is the total lack of acknowledgement as to how ROM sites like this, whatever you might want to say about their legality, certainly served for decades to keep interest in classic Nintendo games alive.

But instead, Nintendo has gone through this entire process, spending whatever money it had to and cannot extract from Storman, just so RomUniverse is no longer online. If that's how the company wants to spend its money, mission accomplished, I suppose.

Filed Under: classic video games, copyright, matthew storman, permanent injunction, rom sites, roms, video games
Companies: nintendo, romuniverse

Illinois Governor Signs Law Banning Cops From Performing Background Searches On Public Speakers

from the hey,-this-is-the-1st-Amendment.-have-you-met? dept

The Chicago PD has a host of problems. Ones that have gone unaddressed for years and appear to remain unaddressed even after the federal government has been forced to step in. Misconduct goes unpunished, investigations into officers are left uncompleted, the PD buys surveillance tech with forfeiture funds to dodge its oversight, and it operated a CIA-style black site in the city where arrestees and their rights vanished with alarming regularity.

For years, the Chicago PD has also apparently investigated citizens who speak at public meetings. A 2019 investigation by the Chicago Tribune, aided by public records requests, uncovered this secret attack on the First Amendment.

Documents obtained by the Tribune under a public records request show the Police Department gathered the details on nearly 60 people in advance of their speaking at monthly meetings of the Chicago Police Board since at least January 2018. A police spokesman said the background checks go back further, to at least 2013.

The checks appear to be extensive, with police searching at least one internal department database to determine if speakers have arrest or prison records, warrants outstanding for their arrest, investigative alerts issued for them by the department and even if they’re registered sex offenders or missing persons. Police also searched comments that speakers had previously made on YouTube or on their Facebook and Twitter accounts, among other internet sites, the documents show.

Among those subjected to background checks were a woman who alleged she was sexually assaulted decades ago by a Chicago police officer, a community activist who gained prominence after the fatal shooting of Laquan McDonald by a police officer and a 77-year-old man known for his frequent, flamboyant rants on a variety of topics at public meetings across the city.

It actually goes back further than 2013. Other public records indicate the Chicago PD has been doing this for more than 15 years, beginning in 2006.

The background searches only targeted certain speakers at certain public meetings: those wishing to express their opinion during comment sessions hosted by the PD's oversight. Upon revelation of this practice, Police Superintendent Eddie Johnson offered up two useless comments. First, he claimed the PD had never acted on this information. Then he promised to end it, but seemingly because it was a pointless exercise in police overreach.

“I don’t think we have a reason at this point to continue it," said Johnson, who often attends Police Board meetings with members of his command staff. "It’s done.”

It's really done now -- at least as far as one background search database goes. The involuntary decision to end the practice of running searches on public speakers has been codified.

Gov. J.B. Pritzker on Friday signed into law a measure that makes it illegal for police to use at least one commonly searched law enforcement database to conduct criminal background checks on citizens who sign up to speak at public meetings statewide.

[...]

The new law, which goes into effect immediately, bars police agencies throughout Illinois from conducting background checks on citizens “for the sole reason” of that person speaking “at an open meeting of a public body, including police disciplinary boards.”

But the bill only forbids use of the LEADS (Law Enforcement Agencies Database System) database for these searches. It doesn't prevent the Chicago PD (and other agencies) from using other criminal record/background check databases they have access to. There's also a public safety exception that allows cops to run searches if they "reasonably" believe a speaker is a security threat or may engage in criminal conduct. That's a pretty massive exemption and one that can be abused without officers fearing they may be punished by employers that have shown little interest in punishing them for their misconduct.

However, if LEADS is used and an officer can't find a way to justify the search, there are actual consequences. A violation of the law can lead to 30 days in jail and a fine of up to $1,500. Considering how hesitant governments are about punishing their own, it seems unlikely we'll see many officers punished for violating this new ban. If the cops want to dig up dirt on public speakers, they'll find a way to do it. The better deterrent is something law enforcement agencies can't control: speakers are allowed to sign up to speak at meetings 15 minutes ahead of its start, rather than 24 hours prior. That gives some power back to the people, making it far more difficult for dossiers to be compiled by police officers more interested in abusing their powers than respecting people's rights.

Filed Under: background checks, chicago, chicago pd, free speech, illinois, intimidation, police, public meetings

Why Is The Republican Party Obsessed With Social Media?

from the emotional-claptrap dept

“In 1970,” observes Edmund Fawcett in his recent survey of political conservatism, “the best predictor of high conservative alignment in voting was a college education.” “Now,” he notes, “it is the reverse.” Many other statistics sing this tune of political realignment. Whereas the counties Al Gore won in the 2000 election accounted for about half the nation’s economic output, for instance, the counties Joe Biden won in 2020 account for more than 70 percent of it. Many observers have tried to capture this shift’s cultural significance. You could say that the Republicans have rejected Apollo for Dionysus. You could conclude that they have embraced Foucault and postmodern philosophy. Or you could sting to the quick, as David Brooks does, and acknowledge that “much of the Republican Party has become detached from reality.”

This political rearrangement has been helped along by much larger historical forces, among them the decline of social trust, the collapse of Christianity, the erosion of faith in experts and institutions, the flattening of authority structures and information flows, and the accelerating pace of technological change. Put to one side the knotty question whether the benefits of modernity outweigh the costs. No one can deny the size and sweep of liberal capitalist disruption.

Are Republicans grappling with the megatrends reshaping their party, society, and the world? Are the big disruptions sparking big thoughts that lead to big policy proposals? In a word, no. In fact, the party’s leaders have rallied around something remarkably small. Not for them the pursuit of the grand contemporary challenges. Their first thought, it often seems, is for how social media companies treat the extremists, conspiracy theorists, and other fringe characters on their websites. Republican legislators emit plumes of bills on the subject. Rightwing scholars and pundits take a bottomless interest in it (and in how to circumvent the companies’ First Amendment right to moderate content as they see fit). Over and over, Republican politicians say that Big Tech has become “Big Brother,” that Twitter and Facebook pose an “existential threat” to free speech, and that Jack Dorsey and Mark Zuckerberg are “out to get” conservatives. They say these things so often—they spend so much time saying them, to the exclusion of saying other things about other issues—that their voters can almost be forgiven for thinking them true.

By now people simply assume that disdain for social media firms is a key plank of the GOP platform. Should it be? Actually, that Republicans devote so much energy to denouncing content moderation is exceedingly odd. Not only is the supposed problem trivial; there is arguably, even from the perspective of a conservative, no problem at all. It is doubtful that content moderation harms the Republican Party. Some rightwing commentators all but admit as much. As David Harsanyi, an outspoken critic of Twitter’s and Facebook’s content-moderation practices, sees it, “There is no evidence that regulations, whether enforced by corporate stooges or government itself, make us safer or alter human nature or stop people from believing stupid things.” Which is to say that major social media sites have not stopped, and perhaps cannot stop, abhorrent views, crackpot views, or rightwing populist views from spreading, even thriving, online.

So why the clamor? Because the claim that average people are being silenced by “Silicon Valley oligarchs” is simple. It’s easy to grasp. It lends itself to the perpetual partisan fund drive. Above all, it’s emotional.

The right’s fixation with online speech is, at bottom, about dignity. Your rustic aunt—the one who sneers, “The election was stolen, and there’s nothing you can say to convince me otherwise!”—might be unrefined. She might be stubborn. She might even be a bit batty. But she also feels frustrated, as she struggles in earnest to make sense of a fast-evolving world. And she feels ignored, if not maligned, by journalists and intellectuals who dismiss her as a rube and a bigot. She feels treated unfairly. Whether the treatment is truly unfair is beside the point. “When you tell a large chunk of the country that their voices are not worth hearing,” writes Brooks, “they are going to react badly—and they have.”

Here as elsewhere, though, the GOP cannot square what its voters purport to want with how they so obviously feel. On the one hand, many on the right seek precisely what conservatives, in the traditional sense of the word, have sought since the early nineteenth century: security and stability in the face of innovation and churn. “To ordinary people shaken by a hurricane of social change that nobody yet understands,” says Fawcett, “the hard right promises a longed-for security of life, imagined as a common shelter.” On the other hand, the populist right is brimming with contempt for a system that rejects them. They therefore value their ability to use social media to mock academics, journalists, government officials, and other figures of authority. Theirs is (to return to Fawcett) a “gospel [that] sets itself as at war with a conservatism of prudence and moderation.”

Think of it this way. A party that celebrates the 1950s as a simpler, happier time of community feeling and patriotic elan, but that believes trolls getting exiled to Parler, Gettr, and Gab is among the most pressing problems of our moment, is by definition a neurotic mess. “The unreconciled right,” in Fawcett’s words, “cannot be said to have a coherent, thought-through critique of present-day liberal orthodoxy, let alone a positive conservative orthodoxy.” What it has instead is merely “a powerful set of rhetorical themes,” one of the most prominent of which is the accusation that liberals “stop conservatives from telling the truth about a desolate state of affairs.” Hence Republicans’ hollow obsession with what can and cannot be said on Twitter or Facebook.

Corbin Barthold is internet policy counsel at TechFreedom.

Filed Under: conservative, content moderation, online speech, politics, populism, republican party, social media
Companies: facebook, twitter, youtube

Netflix's Ramped Up War On VPNs Comes With Collateral Damage

from the whoops-a-daisy dept

As Netflix has grown internationally, the company has increased its crackdown on "content tourism," or the act of using a VPN to trick Netflix into letting you watch content specifically licensed for other countries. If you take a look at what's available per country, the motivation to use a VPN to watch content not available in your market becomes abundantly obvious.

Pressured by copyright holders concerned about this "piracy," Netflix began beefing up its war on VPNs around 2016. This primarily involved blocking VPN IP addresses used by users trying to avoid this sort of "geofencing."

Initially it wasn't particularly difficult for VPN providers to skirt the restrictions. Often by trying to disguise their VPN IP addresses as the IP addresses of normal, residential broadband users. But more recently, Netflix has been beefing up its VPN blocking efforts, including the banning of some residential IP addresses:

"Netflix doesn’t explain which IP addresses are blocked and why, but the most recent efforts are much broader than before. This issue was brought to our attention by WeVPN, which noticed that the updated geo-fencing system is blocking its residential IP addresses."

The problem is that determining which IP address is a VPN disguised as a residential broadband subscriber, and which IP address is an actual residential broadband subscriber is going to prove difficult, inevitably leading to some collateral damage:

"The collateral damage is that you have hundreds of thousands of legitimate residential Netflix subscribers blocked from accessing Netflix’s local country full catalog from their home,” a WeVPN spokesperson informs us.

While we are unable to verify how many people are facing issues, it is clear that the measures are spilling over to regular subscribers.

Torrent Freak points to a growing number of complaints on Reddit from folks saying that they suddenly can't access content they pay for, and none of them appear to be using a VPN or proxy to disguise their real IP address. Netflix's response so far has been in a few instances to try and blame the user's ISP:

Netflix hasn't been particularly clear yet on exactly what they're doing, but it's fairly clear the new lockdown is coming with some collateral damage, an internet-filtering inevitability.

Filed Under: collateral damage, content tourism, copyright, geofencing, licensing, streaming, vpns
Companies: netflix