Daily Deal: Semi-Annual Storewide Sale

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

The Techdirt Deals Store is having a semi-annual sale from July 28 to August 4. Get 15% off of physical products using the code ANNUAL15. Get 30% off apps and software with the code ANNUAL30. Get 60% off of online courses with the code ANNUAL60.

The Learn to Code 2021 Bundle has 13 courses to help you kickstart your coding career. Courses cover Ruby on Rails, C++, Python, C#, JavaScript, and more. You'll also learn about data science and machine learning. The bundle is on sale for $35. Don't forget to use ANNUAL60 at checkout for 60% off.

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

Freaking Out About Nazi Content On The Internet Archive Is Totally Missing The Point

from the moral-panics dept

The moral panics around anyone finding "bad" content online are getting out of control. The latest is a truly silly article in the San Francisco Chronicle whining about the fact that there is Nazi content available on the Internet Archive, written by the executive director of the Middle East Media Research Institute, Steven Stalinsky, who is quite perturbed that his own personal content moderation desires are not how the Internet Archive moderates.

For the past decade, Middle East Media Research Institute (MEMRI) research has been exposing the Internet Archive's enabling of Al-Qaeda, ISIS and other jihadi propaganda efforts and its function as a database for their distribution of materials, recruitment campaigns, incitement of violence, fundraising and even daily radio programs. We wrote that ISIS liked the platform because there was no way to flag objectionable content for review and removal — unlike on other platforms such as YouTube. Today, the Internet Archive enables neo-Nazis and white supremacists in the same ways, and its terms of use still deny responsibility for content uploaded to it.

Right, so let's stop right there. Yes, for over a decade, we've written about ongoing complaints among the pearl clutching crew that you could find terrorist content online, along with their demands that websites pull it down, leading to social media sites shutting down the accounts of human rights groups who were documenting war crimes committed by terrorist organizations.

There's a key point in this: just because this information is available does not mean it is only used for nefarious purposes. Indeed, it is often used for important and valuable purposes -- such as documenting crimes. Or creating historical archives that show truly horrific crimes and ignorant thinking. Deleting that and sweeping it under the rug is not a reasonable approach either. But this entire article by Stalinsky seems premised on the idea that every bit of evidence of Nazi-ism should disappear. That seems incredibly counterproductive.

A recent two-year study I co-authored reviews the massive amount of content being uploaded, downloaded and shared by these groups on the Internet Archive and how it is used for recruitment and radicalization. This includes historical Nazi content such as copies of Der Sturmer, the virulently antisemitic Nazi-era propaganda newspaper, and speeches and writings by Adolph Hitler, Nazi propaganda minister Joseph Goebbels and other Nazi figures.

This historical material is interspersed with neo-Nazi content, including tens of thousands of pages with titles such as "Adolf Hitler: The Ultimate Red Pill," "666 Adolf Hitler Quotes" and "Joseph Goebbels, Master of Propaganda, Heil Hitler," and videos and writings by convicted Holocaust deniers.

And the answer to this content is... to set it all on fire? Like that won't come back to bite you?

Extremist works are available on the platform for download — and for radicalization — including seminal white supremacist books, training manuals for carrying out attacks, recruitment videos and several manifestos of white supremacist mass shooters.

And it's also available for activists, journalists, researchers and more to study it and figure out how to counter it.

Yes, these are serious issues and I can understand the concerns about how this information could be misused (though, despite an attention grabbing headline about how the website is a "favorite" for "neo-Nazis", the actual article supplies little to no evidence to support that claim). But simply hiding the information doesn't make it go away--nor does it deal with any of the underlying reasons such information might be appealing to some ignorant people. It is brushing a serious issue under the rug, and doing so in a way that can have seriously bad consequences -- as we've seen with social media sites deleting evidence of war crimes.

Everyone seems to think that content moderation is easy -- just do what I would do -- without ever thinking through the actual trade-offs and challenges of having to actually make these decisions. The article here seems to be written in incredibly bad faith, assuming that removing these historical documents is the only possible and acceptable solution, without bothering to grapple with the serious difficulties and trade-offs involved in making such decisions. Are there ways that the Internet Archive could better handle this content? Probably! Will being scolded as a "favorite" of "neo-Nazis" help make that work better? That seems unlikely.

Filed Under: archive, content moderation, library, nazi content, steven stalinsky, terrorist content, user generated content
Companies: internet archive

ISPs Abuse FCC Covid Broadband Discount Program, Showing It's A Band Aid On A Much Bigger Problem

from the band-aids dept

For more than a year the Covid crisis has showcased the essential nature of broadband and the high prices Americans pay due to limited telecom competition. While fixing this competitive logjam has long been a work in progress, the pandemic has culminated in renewed efforts to ensure affordable broadband access is a top priority.

At the forefront of these efforts was the creation of the Emergency Broadband Benefit (EBB) program, which doles out a $50 per month subsidy to those struggling economically during the pandemic (it jumps to $75 per month for those living on tribal lands). The program ends when funds run dry or the pandemic ends, whichever comes first.

Over 825 participating ISPs enrolled a million users in discounted broadband plans in just the first week alone. The EBB is now providing essential, immediate aid to the nation’s marginalized and minority populations, routinely hit the hardest by the lack of affordable broadband. But while the majority of internet service providers (ISPs) are participating in good faith, several of the biggest industry players have exploited the program in a quest to generate additional revenue.

Last May, the Washington Post reported that Verizon was exploiting the program to force broadband customers to sign up for more expensive broadband tiers than they currently subscribed to (defeating the point of the whole program):

"Annie Styles from Arlington, Va., who pays $79 per month for her Internet, says Verizon told her she would have to switch to a plan that would cost her closer to $95. “I stopped pursuing it with them after the math didn’t work out,” she says.

Sharon from Harrisburg, Pa., who asked to be identified only by her first name, said she was told by two customer service representatives that she could receive the EBB discount only if she increased her current Internet speed and reconfigured her TV package, too. She said the ultimate price would have depended on what video package she was forced to switch to, as well as new equipment with fees — but she dropped her EBB application out of frustration before she got that far."

Verizon also refused to apply the discount on the company’s older DSL lines, often the only option for users in long neglected markets. Only once the strategy began making headlines did the company shift its trajectory, insisting in a statement that it was always the company’s intent to provide its customers “a wide range of choices to best fit their needs.”

"Verizon's behavior as an EBB provider demonstrates its disdain towards serving low-income consumers, such as TracFone's Lifeline subscribers," consumer group Public Knowledge wrote in a May filing opposing Verizon’s planned acquisition of the prepaid phone provider.

Other broadband providers, including Charter, T-Mobile, and AT&T, restricted which tiers of service qualified for the government discount. Frontier Communications was last week found to be only approving users if they signed up for the company's fastest service tiers. While this did not violate agency rules (left intentionally broad to encourage ISP participation), it limited applicant choice and often shoveled struggling families toward options they can't really afford.

In a bid to protect low-income consumers from bill shock when the program ends, the FCC required that ISPs give qualifying users clear notice that the program was ending, then get their explicit opt-in consent before subscribing them to a more expensive broadband plan.

But several broadband providers, including Charter, have been criticized for requiring that low-income Americans sign up for a more expensive tier of service upon their initial application. If they refuse, they are rejected from participation entirely, something news outlets say wasn’t initially made clear to users in the company’s FAQ. That runs counter to the point of the EBB program, which was to protect consumers from expensive broadband during an economic crisis -- not leave them saddled with even higher bills once the program ended.

A recent study by consumer group Free Press found that the average U.S. household expenditure on broadband jumped 19 percent in the first three years of the Trump era. The study also found that standalone cable broadband prices jumped 34 percent between 2015 and 2020, nearly four times the rate of inflation.

But many applicants to the EBB program say they’re struggling to even make it through the approval process. One report indicates that Charter and Comcast customers are being rejected at no fault of their own. One Comcast customer on Medicaid with a disabled daughter told Protocol they’d been rejected by the ISP four times, despite being approved by the FCC:

"Over the last several weeks, Corsaro said he's reapplied and been rejected by Comcast another three times. He's followed the circuitous trails of automated FCC phone lines that all lead to dead ends and appealed to the kindness of mystified Comcast agents, who have told him again and again that he needs to finish the FCC's verification process. "I keep telling them, 'I've been approved. There's nothing to finish,'" Corsaro said."

While the EBB program is providing welcome aid to many struggling Americans stuck on the wrong side of the digital divide, significant improvements and tougher, clearer guard rails for ISPs may be required if it’s to be made permanent. If carriers continue to exploit loopholes in the program, Congress could mandate a low-income tier like the one that New York State passed into law (which was met with a lawsuit and subsequent injunction courtesy of the telecom industry).

Consumer groups say much more needs to be done in order to improve both broadband access and affordability. A new Pew study found that a quarter of Americans still lack broadband access at home, with forty-four percent citing cost as the primary reason. Up to 42 million Americans lack access to broadband, and roughly 83 million Americans find themselves stuck under a monopoly where they have just one choice in internet service providers.

Regional monopolization and a lack of competition is directly responsible for the higher broadband prices paid by US consumers, putting an essential lifeline to healthcare, opportunity, employment, and education just out of reach for many. As such, it’s essential to adopt policies that drive creative broadband alternatives to market, lowering historically high broadband prices through competition. At the same time, restoring the consumer protection authority stripped away from the FCC by the Trump administration would ensure that government regulators have the tools needed to protect consumers.

While Covid has been an unspeakable tragedy, it has also been the catalyst for real change. The government insists a $1 billion investment to improve broadband infrastructure in tribal areas -- part of a Covid relief bill passed last December -- was just a “down payment” on the $2.3 trillion American Jobs Plan, which itself aims to set aside $100 billion to shore up US broadband coverage gaps. Assuming the proposal can survive "bipartisan negotiations" in the Senate, which have continued to whittle away at the scope of the effort.

Until the government realizes the true scope of the problem, the Emergency Broadband Benefit program, warts and all, at least gives struggling Americans a fighting chance. Those curious if they qualify for discounted broadband service under the program should visit the FCC application website. Users experiencing unnecessary barriers when signing up for the EBB program should file their complaints directly with the FCC.

Filed Under: broadband, competition, covid, covid discount, emergency broadband benefit, fcc

Splunk Can't Sue Deutsche Telekom In USA Over Magenta Trademark Bullying Occurring In Germany

from the ruling-by-reputation dept

If you were to simply input the word "magenta" into the search bar at the top of Techdirt, you will note that two company names seem to keep coming up in the articles: T-Mobile and its parent company Deutsche Telekom. This is because those two companies have been incredibly annoying at with their nonstop bullying of other companies, often in entirely unrelated industries, for daring to use the color magenta in their branding. While some will want to argue that very specific colors can definitely be trademarked, this misunderstands how T-Mobile and DT operate, which is to threaten plenty of companies that use a similar purple color and those that use magenta but in different marketplaces. Notably for the purposes of this post, much of this trademark bullying has occurred in Europe, though not all of it. The point is that DT is a trademark bully when it comes to the color magenta and everyone knows it.

Which is what makes it disappointing to see a company like Splunk lose its ability to sue DT in America to have its use of magenta declared non-infringing solely because it has thus far only been bullied in Germany.

Tech company Splunk Inc can't sustain its lawsuit against Deutsche Telekom over its trademark rights in a "color gradient" that includes DT's signature color magenta, a San Francisco federal court ruled Monday.

U.S. District Judge James Donato said Splunk didn't have a "reasonable apprehension" of litigation in the U.S. based on a cease-and-desist letter it received from DT about its conduct in Europe and DT's trademark action against it in Germany.

On the one hand, this is a jurisdictional technicality and comes after Deutsche Telekom representatives insisted to the court that there were "no plans" to sue Splunk for trademark infringement in the United States. From the court's perspective, this led it to the conclusion that there was no actual conflict within its jurisdiction.

But on the other hand, DT does have a reputation to consider and it appears that there is enough interpretation being done in this ruling that it certainly could have taken that reputation into better account. From the ruling:

“[T]rademark disputes are justiciable under the Declaratory Judgment Act when ‘the plaintiff has a real and reasonable apprehension that he will be subject to liability.’” FN Cellars, LLC v. Union Wine Co., No. 15-cv-02301-JD, 2015 WL 5138173, at *2 (N.D. Cal. Sept. 1, 2015) (quoting Chesebrough-Pond’s, Inc. v. Faberge, Inc., 666 F.2d 393, 396 (9th Cir. 1982)). For this inquiry, the Court focuses “upon the position and perceptions of the plaintiff” and the “acts of the defendant,” which are “examined in view of their likely impact on competition and the risks imposed upon the plaintiff.” Chesebrough-Pond's, 666 F.2d at 396 (cleaned up). The showing of apprehension “need not be substantial” when an allegedly infringing mark is in use. Societe de Conditionnement en Aluminium v. Hunter Eng’g Co., 655 F.2d 938, 944 (9th Cir. 1981).

There is no bright-line application of these factors to decide justiciability. “The question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

Here the court acknowledges that there is no bright line and that the "apprehension need not be substantial." Splunk has a reasonable apprehension that it will be the target of a trademark action by DT, given that it is a target of one in Germany for the exact circumstances it's seeking relief. Despite DT's reputation as a trademark bully and the action initiated overseas, however, the court takes a very narrow view of that action, as well as taking DT's word that it doesn't plan to sue Splunk.

On the record before the Court, Splunk has not demonstrated a reasonable apprehension of being sued in the United States by DT. The salient facts, which are not in dispute, are that DT: (1) sent a demand letter to Splunk under German and EU law for Splunk’s conduct in Europe; (2) filed a trademark action against Splunk in Germany over the EU conduct; (3) reserved its trademark rights under U.S. law; and (4) has not sued Splunk in the United States, and did not oppose Splunk’s trademark proceedings before the TTAB. These facts are a country mile from the circumstances typically deemed sufficient to establish DJA jurisdiction.

Again, it's not that the court is wrong. Still, it seems like there is a reasonable chance DT will prove the court wrong with a lawsuit sometime in the future, given its past and present actions. If that were to occur, it would render this court's decision somewhat silly.

As silly, frankly, as the fact that these kinds of disputes over the color magenta need occur in any jurisdiction.

Filed Under: germany, magenta, trademark, us
Companies: deutsche telekom, splunk, t-mobile

Supreme Court Asked To Firmly Establish A First Amendment Right To Record Police Officers

from the an-inevitable-conclusion,-but-how-much-longer-do-we-need-to-wait? dept

Earlier this year, the Tenth Circuit Court of Appeals awarded qualified immunity to officers who grabbed a tablet from Levi Frasier and tried to delete his recording of them. Frasier happened across these officers applying force during an arrest and decided to record it. The officer didn't like this so they took away his device and tried to find the video to delete it. Apparently unable to locate it, the officer yelled back to his partner that he couldn't find the recording, to which his partner replied, "As long as there's no video, it's ok."

The lower court found in favor of the officers, ruling they had reasonable suspicion to detain Frasier because he had lied about recording them, supposedly breaking a law that has nothing to do with lying to officers (at least not in this fashion).

The district court, as relevant here, held that Officer Evans had reasonable suspicion to detain Mr. Frasier throughout their twenty-three-minute encounter because Mr. Frasier lied to him about filming the arrest, thereby potentially violating Colorado Revised Statutes § 18-8-111, which proscribes knowingly making certain false statements to the police.

But this statute covers false emergency reports, falsely reporting crimes, and lying to officers about who you are when you're arrested. It clearly doesn't cover the conduct shown here. Nevertheless, the lower court used this justification to extend qualified immunity to the officers, despite the fact the officers had received training and notification that there was a presumed right to record police -- something backed up by court precedent around the nation.

The Tenth Circuit used the lower court's reasoning to justify its own finding in favor of the officers. And it went on to say that just because a cop has been informed that seizing or preventing recordings violates people's rights, no "reasonable" officer with the same training would assume that meant they couldn't seize people's devices and attempt to delete recordings.

[J]udicial decisions are the only valid interpretive source of the content of clearly established law, and, consequently, whatever training the officers received concerning the nature of Mr. Frasier’s First Amendment rights was irrelevant to the clearly-established-law inquiry.

Levi Frasier is hoping the Supreme Court will take his case. So are we. This should clear things up. There's not exactly a circuit split to resolve but there's no top-level declaration establishing the right to record public officials. Some circuits have established this bright line but many have not, allowing officers to walk away from lawsuits despite knowing courts tend to find recording officers is covered under the First Amendment. But because there's still a chance a court may find otherwise, officers can claim to be "reasonable" even if the courtroom odds are against them.

Frasier's petition [PDF] asks the Supreme Court to settle this question once and for all. (h/t SCOTUSblog)

Whether it has been “clearly established” since at least 2014 that the First Amendment protects the right of individuals to record police officers carrying out their duties in public.

It also asks the court to declare that training officers receive should have bearing on "reasonableness" decisions when qualified immunity is on the line. Given the top court's recent rollback of some of its expansion of qualified immunity, the second question is at least as timely as the first. As the petition points out, the Tenth Circuit ignored precedent and the officers' own training to excuse them from this lawsuit.

Regardless of whether this Court might wish to reconsider qualified immunity as a whole, this case presents a timely opportunity to resolve two divisions of authority and to curb an unjustified distortion of the doctrine. At the time of the remarkable incident in this case, the respondent police officers’ training and departmental policies expressly advised them that the First Amendment protects the right of citizens to record officers performing their duties in public. All four federal court of appeals decisions on the issue said the same thing, consistent with this Court’s precedent. Yet the Tenth Circuit granted the respondents immunity for doing exactly what they had been told was unconstitutional. The Tenth Circuit reasoned (1) that the training and law enforcement policies are “irrelevant” to the qualified-immunity analysis and (2) that existing legal precedent was insufficient on its own to make the right here clearly established.

As Frasier notes, this question should never have been considered by the Tenth Circuit because there was nothing left unanswered according to the officers' own testimony.

The qualified-immunity doctrine was created to prevent officers from being held unexpectedly liable based on constitutional rules they “neither knew nor should have known” existed. Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). The officers here all testified that they knew they were violating petitioner’s rights. Their training, department policies, and precedent all underscored that reality.

Addressing this would resolve the circuit split the Tenth Circuit deepened by deciding officers' training is somehow irrelevant to discussions of "reasonable" officers and their actions.

There's no real split when it comes to the right to record police officers, but the Supreme Court itself hasn't handed down precedent that affirms or establishes this right, so officers are free to pretend plenty of other courts haven't reached that conclusion.

When the events here occurred, all four federal courts of appeals to have considered the constitutional issue had held that “there is a First Amendment right to record the police performing their duties in public spaces.” But, citing Wilson, the Tenth Circuit held that respondents were entitled to qualified immunity because the circuits have “disagreed regarding whether this purported First Amendment right to record [i]s clearly established.”

The petition says the Tenth Circuit misread this decision. That one extended qualified immunity when there was a circuit disagreement "on a constitutional question." In all four of the circuit decisions handling the issue, there's no split because each court reached the same conclusion on the underlying constitutional question. Because the courts reached conflicting conclusions on the extension of qualified immunity does not show that they disagree on the right to record police officers. And there's plenty of other federal case law, along with any number of law enforcement policies, that make it clear recording officers is protected activity.

This reasoning is mistaken. For one thing, it improperly ignores the robust body of lower court jurisprudence that is directly on point. The clearly-established-law inquiry is not a game of divide-and-conquer. It is a holistic inquiry. See, e.g., Hope, 536 U.S. at 736-46. And here, the combination of precedent from this Court and the lower courts (plus the officers’ training and departmental policies, see supra at 16- 23) renders the law clearly established.

This is a case the Supreme Court should definitely take. The right to record police officers is assumed, thanks to a host of case law finding this act to be Constitutionally protected. But, as happened here, the lack of a firm resolution from the nation's top court, along with the fact that only a handful of circuits have directly addressed this issue, makes it unclear enough that officers can ignore their own internal policies to hassle, deter, or arrest citizens who film them. This decision is at least a decade past due. And the longer it goes unresolved, the longer the sort of abuse witnessed in this case will continue to occur.

Filed Under: 10th circuit, 1st amendment, levi frasier, recording police, supreme court

As The White House (And Others) Blame Facebook For COVID Vaccination Rates, Health Officials Are Blaming Fox News

from the the-real-problem dept

Over the last few weeks there's been a weird, wasteful, and just silly dispute in which the White House has tried to blame Facebook (and misinformation on Facebook) for not enough people agreeing to get vaccinated against COVID-19 (in light of cases ramping up again). Things have gotten so stupid that two Senators have released a terribly unconstitutional bill attempting to hold Facebook liable for "health misinformation" on its platform.

But... is Facebook actually to blame? Mark Zuckerberg (who, um, is obviously not an unbiased party) made a completely valid point in response to all of this: Facebook is available around the globe, yet much of the rest of the world is not seeing the same levels of vaccine hesitancy (indeed, the problem elsewhere tends to be a lack of supply), and that might raise questions as to why Facebook is facing the blame for vaccine hesitancy.

"..if one country is not reaching its vaccine goal, but other countries that all these same social media tools are in are doing just fine.. should lead you to conclude that.. platforms are not the decisive element.."

Of course, there's more to it than that, but what strikes me as most notable is that actual health experts in places where there are high levels of vaccine hesitancy don't seem to think that Facebook is the problem. They seem to recognize that it's actually a Fox News problem. In an article talking with health officials in states like Alabama and Louisiana, where vaccine hesitancy is the highest, they're saying the real problem remains Fox News.

Doctors and health officials in Alabama and Louisiana say their only hope for getting people vaccinated is if the media outlets that message to these areas, primarily Fox News, start advocating people get the shot, instead of pushing them away from the jab.

“I have people come up to me and say, ‘Why on CNN? Couldn’t you go on Fox?’ They are still very angry over the last couple of years. There’s an irritation. They are super frustrated. They need to hear it from the people that they trust. They need to hear it from where they get their news every day. And I don’t know why not Fox. Why not?,” O’Neal said. “But it has to change this week. Every single show. And it has to be about the community, not the ‘you’ because there’s been too much about the ‘you.’ ‘You’ they got indoctrinated. It is not about ‘you,’ it is about the community. You’re going to kill your community.”

Others have been making this point as well.

But despite the enormous reach of Facebook, only one media outlet has devoted itself to injecting falsehoods about the pandemic into the nervous systems of its audience on a 24/7 basis. That, of course, would be Fox News, the right-wing cable station that tells its viewers, over and over, that vaccines are dangerous and that wearing a mask to prevent COVID-19 is ineffective — and, in any case, is not worth the price we’d pay in giving up our freedom.

None of this should be surprising. For years now we've been pointing people to the detailed, data-driven research findings of Yochai Benkler, Robert Faris, and Hal Roberts in their book, Network Propaganda, which traced the actual flow of mis- and disinformation regarding the 2016 Presidential election, and found that the main vector (by far) was not Facebook, but Fox News. Yes, things would spread on Facebook eventually, but only after Fox News would make it into a story. A later study they did regarding disinformation about mail-in ballots found the same thing.

That's not to say that mis- and disinformation don't travel on Facebook. Clearly it happens all the time. But focusing on social media, as if it's the primary culprit, or that somehow getting Facebook to delete the propagandists on that platform will magically solve all disinformation is clearly folly. Of course, you won't see Senators Amy Klobuchar and Ben Ray Lujan introducing bills to make Fox News liable for the health misinformation they spew -- they at least recognize that that would not only be blatantly unconstitutional, but would be interpreted as an attack on conservatives' favorite TV news channel.

Mis- and disinformation remain a real problem, but kneejerk attempts to blame social media are not helping and not getting at any of the root causes of the credibility crisis currently facing people throughout the US.

Filed Under: 1st amendment, blame, cable news, covid, fox news, health misinformation, health officials, social media, vaccines
Companies: fox news