Map Of The Internet Exposes The Lie That 'Big Tech' Controls The Internet

from the it's-a-wide-wide-world-wide-web dept

To hear many people talk about things, the entire internet these days is controlled by just a few companies, mainly Google, Facebook, and Amazon. Depending on who you're talking to, you may hear them throw in companies like Netflix. But some of us keep pointing out that while those guys are big, that doesn't mean the rest of the internet stops existing. And it's still incredibly large. If you want this point really driven home, check out this amazing map of the 2021 internet by Martin Vargic (first spotted via Fast Company).

Here's a thumbnail version, but you really should go check out the full size version on Martin's website (or, better yet, buy some prints of the whole thing).

Just the fact that looking at this smaller version above it's nearly impossible to read what most of the "countries" are should give you just a taste of how vast the non-big-tech part of the world wide web really is. There's a lot of "land" out there that isn't controlled by the big players, and we should be celebrating that. On his website he's got a few zoomed in examples as well, including the part that is my favorite: "Protocol Ocean."

Now some may quibble with various aspects of this. It's based on Alexa data, which isn't the most reliable, and it's only covering web traffic, which likely misses a lot of activity that is purely mobile these days. But still, when laid out this way, you really begin to get a sense of the diversity of the web.

The other thing that really stands out for me is that this is an updated map by Vargic. He last produced a map of the internet in 2014 and it looks strikingly different. It seems like a strong visual reminder of just how much the internet keeps changing, even in the fairly short time frame of seven years.

There seems to be this belief among some that the internet has been more or less stuck in place since 2010 when Google, Facebook, and Amazon divided the land between them and wiped the rest of the web off the map. But that was never true, and these maps really drive that point home in a very visual manner.

For what it's worth, if you love getting lost looking at maps like I do, Vargic's entire page is fascinatingly full of maps he's created, many of which explore aspects of actual geography, and plenty of others (like the internet maps) that explore other concepts in map form.

Filed Under: competition, internet, map, martin vargic
Companies: amazon, facebook, google

After Multiple Reports Of DOJ Targeting Journalists' Communications, The DOJ Finally Says It Will Stop Targeting Journalists

from the free-press-(temporarily)-removed-from-the-govt's-shitlist dept

The DOJ -- following President Biden's lead -- has declared targeting journalists' communications is officially off-limits. Biden's statement followed reports of two separate instances where his predecessor's DOJ tried to obtain email and phone records belonging to journalists working for the Washington Post and CNN.

More recently, it was revealed a leak investigation instigated by Trump's DOJ targeted New York Times' journalists. That one continued into 2021 under new Attorney General Merrick Garland. In that case, the government was seeking the source of leaks involving the FBI's investigation of Hillary Clinton's private email server but was unable to obtain anything after Google challenged the subpoena.

The subpoenas for the NYT journalists' records were withdrawn by the DOJ hours after that story broke, with Biden's press secretary claiming the Administration was not aware the DOJ and FBI were still pursuing this information.

As appropriate given the independence of the Justice Department in specific criminal cases, no one at the White House was aware of the gag order until Friday night [June 4]. While the White House does not intervene in criminal investigations, the issuing of subpoenas for the records of reporters in leak investigations is not consistent with the President's policy direction to the Department, and the Department of Justice has reconfirmed it will not be used moving forward.

This would align the DOJ with Biden's statement on targeting journalists. But there's another group of people in need of some protection from the DOJ's investigative methods: readers of news sites. Yet another DOJ investigation involving journalism was exposed late last week. In that one, the FBI targeted readers of USA Today reporting on a child porn raid that ended in the deaths of two FBI agents and the suspect they were seeking. Gannett News attempted to quash the subpoena, noting the FBI had apparently violated the DOJ's rules on targeted First Amendment activity.

That subpoena has now been officially withdrawn by the DOJ. And the FBI has admitted it was able to identify the suspect it was seeking by using other methods, which does nothing to explain why an agent working for the FBI's child exploitation task force thought it was a good idea to obtain information about readers of a story where a child porn suspect opened fire on agents (killing two of them) prior to being killed himself.

That last withdrawal accompanies the DOJ's first public statement on the subject. It appears this DOJ will be the first in a long, long time (or perhaps ever) to respect the First Amendment, rather than look for ways to work around it.

In a separate statement, Justice Department spokesman Anthony Coley said that “in a change to its longstanding practice,” the department “will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs.”

He added: “The department strongly values a free press, protecting First Amendment values, and is committed to taking all appropriate steps to ensure the independence of journalists."

What's left unsaid here is how the DOJ will define journalism and journalists. There are plenty of independent journalists who cultivate sources and report on events that involve ongoing federal investigations. Leakers will continue to leak and presumably -- given Biden's tour as VP for noted leak-hunter Barack Obama -- the government will still seek to identify and prosecute them.

But this is the first public statement made by a DOJ official that says something other than the DOJ will respect free speech rights to the extent its internal guidelines suggest it should. Historically, that range has been "barely" to "not at all." If the DOJ is serious about respecting these rights, it's obviously going to make it more difficult to hunt down leakers. But constitutional rights are rights, not things to be set aside whenever they inconvenience federal law enforcement agents. Hopefully, this pledge will last longer than the current administration.

Filed Under: 1st amendment, 4th amendment, doj, journalists, leaks, records, subpoena, whistleblowers

Daily Deal: ScaffoldHub Developer Plan Subscription

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

ScaffoldHub is a full-stack JavaScript/typescript web application generator directed for JavaScript/typescript developers. It lets you create a project or app with the modeling tool and preview it online. The "download the source code" means that you can download and use the source code, subject to the ScaffoldHub license. ScaffoldHub also comes with API documentation, authentication, security, audit logs, forms, lists, filters, and many other features. An unlimited subscription is on sale for $110.

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

Data Analysis Shows That Trump's Messages Still Received Tons Of Attention; Though His Disinformation Doesn't Travel As Far

from the what-censorship? dept

We've argued for a while now that social media companies removing Donald Trump's accounts were not censorship, and that he had many other avenues where he could be heard, if he chose to use them. He showed this when he later setup his own blog, though he recently shut it down after getting upset that people were mocking it for its low traffic numbers.

But direct traffic to his blog doesn't mean that he he wasn't able to get his message out there. A new data analysis by the NY Times shows that, in fact, after Trump lost his social media accounts, his message spread on social media just as well as when he had his accounts. While he may not be sending out messages as frequently, or as quite as off the cuff (and unhinged), the messages he does send out seem to get plenty of attention, thanks mostly to lapdog proxies, like Breitbart and Fox News.

One thing that became immediately clear: Mr. Trump’s most ardent supporters continue to spread his message — doing the work that he had been unable to do himself.

The top sharers of the March post included the right-wing publication Breitbart News (159,500 likes and shares), a Facebook page called “President Donald Trump Fan Club” (48,200 likes), Fox News (42,000 likes), and Jenna Ellis (36,700 likes), a lawyer who made regular television appearances as Mr. Trump’s proxy to trumpet his debunked claims of a rigged election.

That doesn't look like censorship to me.

Of course, it's not true of all his posts. Somewhat interestingly, when he's spreading direct disinformation, it doesn't seem to spread as far:

The Times analysis looked at the 10 most popular posts with election misinformation — judged by likes and shares — from Mr. Trump before the social media bans, and compared them with his 10 most popular written statements containing election misinformation after the ban. All the posts included falsehoods about the election -- that the process had been “rigged,” for instance, or that there had been extensive voter fraud.

Before the ban, Mr. Trump’s posts garnered 22.1 million likes and shares; after the ban, his posts earned 1.3 million likes and shares across Twitter and Facebook.

In many, many ways, that's fascinating. It suggests that when he's not spreading misinformation, his messages still travel about as far as before. But when they are direct disinformation, some of the intermediation of 3rd parties creates a bit of friction. That... certainly doesn't feel like censorship. It feels like a marketplace of ideas working kind of as it should?

Filed Under: content moderation, disinformation, donald trump, social media
Companies: facebook, twitter

FTC Gives MoviePass Execs A Wrist Slap For Changing Passwords So Users Couldn't Watch Movies

from the wrist-slaps dept

Originally, the MoviePass business model seemed like a semi-sensible idea, though we were quick to wonder if it would ever actually make a profit. Under the model, users paid $30 (eventually $10) a month in exchange for unlimited movie tickets at participating theaters, provided they signed up for a full year of service. There were, of course, caveats: you could only buy a ticket per day, and could only buy one ticket per movie. It also prohibited users from viewing 3D, IMAX, or XD films. Still, the proposal was widely heralded by some as a savior for the traditional, brick and mortar, sticky floor movie industry.

It wound up....not being that.

In 2019, a four-month investigation by Business Insider (paywalled) found that the company had been bleeding money for years, and misleading investors for much of that time. Not only was the idea never really profitable, the company couldn't even manage to acquire enough plastic to keep up with membership card demand. Showcasing the width and depth of the dodgy effort, at one point executives genuinely thought it would be a good idea to actually change user passwords so they couldn't use the service, thinking this would let them get their head above water.

Needless to say, this behavior was so extreme it finally got the attention of the under-funded and over-extended FTC, which finally announced it had struck a settlement with MoviePass. The settlement isn't much to look at: because the companies involved are bankrupt there's no financial penalty, but the executives behind the effort are barred from “misrepresenting their business and data security practices" and "must implement comprehensive information security programs." (Execs did have to shell out $400,000 in penalties to select California counties in a different agreement).

The full FTC complaint (pdf) indicated that the company's not-so-clever password changing efforts impacted roughly 75,000 subscribers in total. Those users were first blocked from using the service, then when they inquired why they couldn't login they were falsely told they were the victim of fraud:

"Under Respondents’ password disruption program, Respondents invalidated the passwords of the 75,000 subscribers who used the service most frequently while claiming that “we have detected suspicious activity or potential fraud” on the affected subscribers’ accounts."

The full complaint is worth a read, and includes details in several other bizarre efforts execs engaged in to prevent customers from actually using a service they paid for. From the FTC press release:

"MoviePass and its executives went to great lengths to deny consumers access to the service they paid for while also failing to secure their personal information,” said Daniel Kaufman, the FTC’s Acting Director of the Bureau of Consumer Protection. “The FTC will continue working to protect consumers from deception and to ensure that businesses deliver on their promises."

It's not clear that a light wrist slap for executives years after it matters genuinely "protects consumers from deception," but in a country where a regulator like the FTC is routinely under-funded, under-staffed, and demonized, you get what you ask and pay for.

Filed Under: fraud, ftc, movies, passwords, wrist slap
Companies: moviepass

Citizen Drops Its Plan To Become Private Cops, Claims It Was Never Interested In Forming A Private Security Force

from the that's-not-a-squad-car,-it's-just-a-promo-for-a-nonexistent-service dept

Crime reporting app Citizen has had a pretty wild run in the past couple of weeks. Debuting rather inauspiciously as Vigilante back in 2016, the app was removed from Apple's store less than 48 hours after its first appearance. It relaunched the following spring as Citizen and remained just another competitor in the virtual Neighborhood Watch scene.

That all changed late last month. Citizen users and employees -- urged on by Citizen CEO Andrew Frame -- started a manhunt (with a $30,000 bounty) for an innocent homeless person Frame had decided was an arsonist. As the public was still digesting this news, Los Angeles residents spotted a Citizen-branded patrol car making the rounds. Shortly thereafter, current and former employees confirmed the company was interested in getting into the private security business with an eye on becoming more like cops and less like an informational app.

As all of this was going on, some hackers scraped Citizen's database of recordings and reports, providing a single source for nearly everything uploaded to Citizen, including recordings moderators had hidden from public view. It was also revealed Citizen's foray into public health had resulted in a leak of users' COVID status as well as other personal information.

Following a tumultuous half-week, Citizen announced it was abandoning its plan to move into the law enforcement business, something it had always supposedly planned to do and certainly completely unrelated to the steady stream of bad press.

The company began offering the service in Los Angeles last month as a pilot program. During the trial, the service, which included a company-branded squad car, was only available to company employees. For the service, Citizen partnered with a private firm called Los Angeles Professional Security, which describes itself as a provider of "subscription law enforcement."

But on Tuesday, Citizen ended the program, stating it has no plans to launch a similar service elsewhere.

"This was a small 30-day test that is now complete," a Citizen spokesperson told CBS MoneyWatch. "We have no plans to launch our own private security force and no ongoing relationship with LAPS."

But Citizen did have plans, at least according to sources Motherboard spoke to.

"The broad master plan was to create a privatized secondary emergency response network," one former Citizen employee told Motherboard. Motherboard granted multiple sources anonymity to protect them from retaliation from the company.

"It's been something discussed for a while but I personally never expected it to make it this far," another Citizen source told Motherboard.

So, this reversal seems to be a reversal, not simply the end of a test run. And if the company has no plans to launch a private security force, why waste the time and money equipping a squad car and sending personnel out to "patrol" Los Angeles? This sounds more like a plan being abandoned because the Overton Window didn't open quite as far as expected.

Filed Under: crime reporting, private cops, private security, vigilante
Companies: citizen

Three Years After An Officer Killed A Suicidal Teen, Law Enforcement Releases Report That Raises More Questions

from the everyone-is-innocent-but-the-dead-kid dept

Law enforcement seems to assume that any shooting officers engage in is justified. What may appear to be reckless violence by cops is just good police work, according to police. Anyone who thinks otherwise is only expressing their ignorance of police tactics and far too unconcerned about officer safety.

Public outcry following police shootings is often greeted with statements from police officials asking the public to calm down until all the facts are in. Then law enforcement officials set about burying facts, rewriting narratives, and doing everything they can to put some time and distance between them and the shooting.

A recently released report on the 2018 killing of Kansas teen John Albers appears to be thorough, at least at first glance. It's 498 pages long, suggesting it's a thorough documentation of the shooting of Albers by Overland Park police officer Clayton Jennison. Like far too many fatal shootings, it started with a call from someone concerned about the teen's welfare.

This is from early reporting on the 2018 shooting.

Police had been told Albers, a junior at Blue Valley Northwest, had been taking pills and drinking heavily and had, via a FaceTime phone call, told someone he was going to stab himself. At least one of the responding officers was familiar with Albers, according to police radio traffic.

Here's how it was described to reporters after Albers had been killed by Officer Jennison.

As officers approached the house in the 9300 block of W. 149th Terrace, the garage door opened and a vehicle came out moving “rapidly” toward one of the officers, with Albers at the wheel, according to police. The officer shot Albers, killing him. No officers were injured.

[...]

After the shooting, the vehicle — a Honda minivan — ended up in a front yard across the street, according to neighbors. It appeared to have come out of the driveway facing forward.

The dashcam video shows otherwise. The van came out of the garage in reverse and did not move "rapidly" towards the officer. Instead, it headed straight down the driveway next to Officer Jenison, who began shooting as it began moving past him. The van then swings back in a half-circle back onto the lawn, suggesting Albers has already been hit. Then it heads across the street before coming to a stop on the neighbor's lawn.

And there's this final insult to the public's intelligence:

Police have not said that Albers had a weapon other than the vehicle.

If Officer Jennison was in any danger of being run over, it's because he put himself in that position. He moved towards the van as it exited the garage and opened fire when it moved past him. His shooting of Albers resulted in the unpredictable vehicle movements that followed his initial shots. No other officer on the scene fired their weapon.

Shortly after the shooting, Police Chief Frank Donchez asked for patience. More than three years after he asked for that, the report has finally arrived. The Kansas City Star turned the report [PDF] over to a handful of experts, none of whom seem impressed by the report or its findings.

In the days after the material was released, The Star had it examined by two forensic scientists, a criminal justice professor and Paul Morrison, the former Johnson County District Attorney.

All found the investigation lacked neutrality and was missing crucial information.

“Everyone just seemed to know what had happened, and had concluded already what had happened,” said Charles Wellford, a professor of criminal justice at the University of Maryland with an extensive background reviewing homicide cases.

“There were things they could have done if they were not convinced from the get-go that this was not a chargeable action.”

“A substantial amount of that report didn’t really even deal with the shooting,” Morrison said. “It dealt with John Albers and his juvenile problems. And that, in my mind, is usually a sign that maybe somebody’s not the most neutral.”

To make room for the disparagement of the dead teen, the investigators excluded crucial information from the report, like the initial supervisor's notes from the shooting scene and any attempts made by the crime lab to reconstruct the shootings and track bullet trajectories. The latter would have shown Jenison fired from the side of the vehicle, rather than from the rear, calling into question his assertions that the reversing van was coming towards him.

Officer Jenison also did not know who was in the van at the point he started firing. All he knew was he was checking on a suicidal teen who might have been carrying a knife. Instead of verifying any of this, he opened fire on the driver of the van simply because he chose to reverse down the driveway like anyone would when pulling out of a garage.

Jenison's post-shooting interview was solicitous and cordial. It also occurred four days after the shooting and after the officer had been given the chance to review the recordings. His claims that he thought the van was going to hit him went unchallenged, even though the recording showed the van moving in a straight line down the driveway until its course was altered by Jenison's shooting of the driver.

The report gives the impression the conclusion that the shooting was justified was reached before the investigation truly began, allowing investigators to work their way backwards from this supposition. The multi-agency investigation only involved other law enforcement agencies, lowering the chance of any other conclusion being reached.

As we've seen in other cases where shootings by officers are investigated, cops are handled very differently than anyone else who's killed anyone, even in supposed self-defense. Officers are given hours, if not days, to review materials and prepare for questioning. All rights are immediately respected, rather than having to be invoked repeatedly by the officer being questioned. They are almost never arrested or jailed, even if probable cause exists to do so. And when cops investigate other cops, they wholeheartedly embrace the ideal of "innocent until proven guilty" in a way they never do when dealing with detained criminal suspects.

Years later, this is the sort of thing that gets handed to the public: a largely exonerative compilation of foregone conclusions spiced up with some details of the shooting victim's prior run-ins with law enforcement. It ignores the victim's mental health crisis for the most part, highlighting it only when it serves to portray John Albers as dangerous to others. And it fully ignores the inconvenient fact that Officer Jenison did not actually know who was in the van when he started shooting, making the details about Albers' past troubles completely irrelevant.

Filed Under: john albers, police, police shooting

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

from the another-hard-case dept

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

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

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

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

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

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

Like it had done in the Homeaway case, the court repeatedly tried to split an invisible hair to pretend it wasn't trying to impose liability arising out of the users' own speech. [See, e.g., p. 10, misapplying Barnes v. Yahoo]. Of course, a claim that there was a negligent design of a service for facilitating expression is inherently premised on the idea that there was a problem with the resulting expression. And just because the case was not about a specific form of legal liability manifest in their users' speech did not put it outside of Section 230. Section 230 is a purposefully broadly-stated law ("No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."), and here the court wants the platform to take responsibility for how its users used its services to express themselves. [p. 15, misapplying the Roommates.com case].

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

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

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

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

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

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

Chief Publishing Lobbyist Maria Pallante Claims Copyright Is 'Under Assault' At Annual Meeting

from the unfortunately-not dept

The Association of American Publishers, like most industry lobbying groups, has a reputation for jealously guarding industry profit-making, no matter the larger implications of their doing so. In the past, the AAP has advocated for secret copyright treaties designed specifically to protect the publishing industry, getting Google to make its Google Library project far less useful, and has sued the Internet Archive's digital library program in the middle of the COVID-19 pandemic. Again, the AAP is a lobbying group and we should expect them in some respects to behave like one, but it's important to tease out what they're lobbying for and against and whether its interests are shared with the interests of the general public. Spoiler alert: they absolutely are not.

So, when the AAP held its recent annual meeting and devoted a portion of this 90-minute affair to the importance of copyright, that would typically be met with something of a yawn and a hand-wave. And when it got several mediocre persons to also speak at that meeting in part to rail against the omni-present threat of "big tech", well, most of us probably just kept yawning.

As part of their remarks, Brian Napack, AAP chair and CEO of John Wiley, and Maria Pallante, CEO of AAP, made clear that protecting copyright remains the top priority for the association.

Minnesota Senator Amy Klobuchar voiced her concerns over the power of Big Tech in accepting the AAP’s 2021 Award for Distinguished Public Service. Keynote speaker Don Lemon (CNN host and author of This Is the Fire), urged publishers to publish more authors of color, while closing keynoter Brad Stone focused his remarks on Amazon, the subject of two of his books, The Everything Store and the recently released Amazon Unbound.

If Senator Klobuchar wants to join the likes of Donald Trump in complaining vaguely about "big tech", well, I guess I'll just have to somehow manage to keep my eyes dry. The inclusion of divisive cable news commentators is certainly a choice to be made, I suppose, as is the inclusion of a biographer for Amazon and Jeff Bezos who isn't always super kind to the company or its leader. That Stone's books can be bought on Amazon is at least a partial rebuttal of all the "big tech" complaining, but I digress.

Instead, what is most notable from this annual meeting is the CEO of the AAP, Maria Pallante, proclaiming to the audience that the association would do everything possible to beat back the "assault" in progress on America's copyright laws.

To make sure that publishing remains a good business to be in, AAP’s job, Pallante said, “is to ensure that you can compete fairly in the modern marketplace.” Regrettably, she continued, “there are actors who seek to weaken your legal protections in order to advance their business interests, whether that interest is in bloating the fair use doctrine to illogical boundaries or, more blatantly, appropriating and monetizing your works without permission.”

In Pallante’s view, the exclusive rights delineated in the Copyright Act are under assault, as is an effective enforcement framework, and she said the DMCA, which governs how infringing content on websites can be taken down, “is badly in need of updating.” She also lamented the lack of a competitive marketplace in which authors’ works can be discovered and publishers can compete “without unfair control or manipulation from dominant tech giants.”

Think about the claims in that statement. "There are actors that seek to weaken your legal protections in order to advance their business interests" is a hell of a take from the CEO of a lobbying group that literally does that exact thing to the public. More copyright laws that strip away the public's rights, stricter enforcement with less legal protections for the accused among the public, diminishing the role of fair use: literally all of these things Pallante is advocating for are well-described as an actor seeking to weaken your legal protections to advance its business interests. Pallante is literally the villain she's complaining about.

As for copyright being "under assault", well, I can only assume it's under assault in the same fashion that I'm constantly told that Christmas is under assault, by which I mean it only expands, becomes more arduous and annoying, is omni-present, and is tied strictly to commercial interests.

Pallante goes on to suggest that the AAP's lawsuit against the Internet Archive's library platform had better be victorious... or else basically all copyright protections go away.

In a final point about copyright, Pallante said that the lawsuit the association filed a year ago against the Internet Archive for copying 1.3 million scans of books is still in discovery, but said the IA’s activities “are well outside the boundaries of both the law and copyright commerce, and ultimately pose an existential threat to the copyright framework on which authors and publishers rely.”

If you can read that and not burst out laughing, you have a stronger constitution than I do.

Now, if Pallante's name sounds at all familiar to you, it's because she previously ran America's Copyright Office. Now, I will say this much: I will happily take Pallante's doomsday for copyright claims more seriously than I have in this post if she can tell me what happened to the $11 million that the Copyright Office, under her leadership, managed to spend on a computer system that never materialized, was supposed to cost a tenth of that spend, and was the subject of several lies in the Copyright Office's reports to Congress.

Otherwise, I'll just note that copyright law in this country is so laughably bloated that it deserves an assault, but isn't actually on the receiving end of one.

Filed Under: big tech, copyright, fair use, maria pallante, publishing, user rights
Companies: aap, association of american publishers

Ohio Files Bizarre And Nonsensical Lawsuit Against Google, Claiming It's A Common Carrier; But What Does That Even Mean?

from the this-makes-no-sense dept

There's been this bizarre fascination among conservatives that tons of internet companies should be declared "common carriers." Of course, this ignores decades upon decades of conservatives fighting against any and all attempts to use common carrier designations on businesses that might legitimately be common carriers, like telcos. Again, there are a few key factors that make something a common carrier: (1) that it's about transport (things, people, data) from one place to another and (2) it's a commodified service in which what you get from any particular provider is likely to be mostly the same and (3) there is at least some argument that it's a natural monopoly, in that rebuilding the same infrastructure for multiple providers would be ridiculously inefficient or disruptive or both.

None of those really apply to internet providers (though it may apply to at least some aspects of broadband). But, instead, conservatives have focused in on trying to get Google and Facebook declared common carriers.

And now, Ohio has jumped up to try to force the issue, filing a bizarre lawsuit to declare Google a common carrier. The filing kicks off with talk about how dominant Google is, and then says that the lawsuit is not about dealing with Google's dominance (or even saying whether it's good or bad), but just about having the company declared a common carrier:

This suit does not seek redress for Google’s dominance of internet search. This suit does not argue that Google’s dominance of internet search is good or bad when viewed in isolation. Those issues are left to be resolved elsewhere. This case accepts Google’s dominance of internet search as a fact (be it good or bad). Accepting this fact, the first claim is narrowly focused on establishing that Google’s provision of internet search is properly classified as a common carrier and/or public utility under Ohio common law.

But what does that even mean? Google is not "carrying" anything from one place to another. It's delivering search results and ads (mostly) and a variety of other services as well (though almost all of its other services are not "dominant" and are highly competitive). And it's unclear what being a "common carrier" for search or ads would even look like. Since it's so disconnected from what a common carrier truly is, it's hard to see how any of it fits in at all. It needs to return all search results? Huh? It needs to host all ads?

The whole point of search is to rank the results. If the argument is that it can't rank the results, or exclude bad results, then... does Google just return totally random results? Or must it serve all ads? Even those that are totally irrelevant? How would that even work?

Google operates more than just a search engine. It is a complex and multifaceted business. In addition to providing a general search engine, which it monetizes through an advertising business, Google engages in a range of business lines that compete with not just search engines and online advertisers, but with suppliers of information, products, and services. For its second count, Ohio requests injunctive relief to remedy the unfair advantages Google’s presentation of search results, have allowed it to create for its other business lines.

Well, Ohio, you now have a 1st Amendment problem on your hands. How Google presents its search results is Google's opinion, and that's protected speech under the 1st Amendment. Ohio saying that the search results are "unfair" is a pretty clear 1st Amendment issue, because it's saying that it doesn't like Google's opinion on which search results are most relevant. I can't see how that gets over a 1st Amendment hurdle.

Google intentionally structures its Results Pages to prioritize Google products over organic search results. Google intentionally disadvantages competitors, by featuring Google products and services prominently on Results pages. It often features Google products and services in attractive formats at the top of the Results page above organic search results. Additionally, Google often presents Google products in enhanced ways in the search results that are designed to capture more clicks, including by integrating other Google business lines—such as specialized searches—into the Results page. It does so even when the Google product would not be returned near the top of an organic search. It does not allow competitors to have similar access, thereby violating its duties as a common carrier.

So... again, this goes back to basically being an antitrust argument in disguise, in which it tries to wrap it in an ill-fitting common carriage suit. Whether or not Google favors its own products over others isn't a common carriage issue.

Google knows that most search customers, particularly those customers using mobile devices like cellular phones, will click through to links that are on the highest positions on the Results Page, and/or are presented in enhanced ways. What Google Search users want to see—organic search results—are frequently downgraded to appear below Google products.

If that's actually true, then, uh, again this should go to competition, not common carriage. First, it seems like a huge opportunity for some other search engine to step in and tell people "if you're sick of all those things Google puts on top of the organic search results you want, come to our search engine instead." And there are other search engines out there. But, again, the framing of this lawsuit is just bizarre. It's really trying to be an antitrust lawsuit but trying to shove it through the common carriage hole.

Then, Ohio's AG cite's Justice Thomas's bizarre, unbriefed, nonsensical concurrence in Biden v. Knight, to argue something, something common carrier:

Justice Thomas recently stated, “[t]here is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated.” Biden v. Knight First Amendment Inst. at Columbia Univ., 593 U.S. ___, ___ (Slip. Op. at 6) (2021) (Thomas, J., concurring). Justice Thomas went on to explain, “[t]he analogy to common carriers is even clearer for digital platforms that have dominant market share. … Google search—at 90% of the market share—is valuable relative to other search engines because more people use it, creating data that Google’s algorithm uses to refine and improve search results.”

Again, this was totally unbriefed, and completely unrelated to the issue at play in the case. And, again, there is no indication of what it would even mean for Google to be a "common carrier" in this context.

The complaint then, laughably, claims that Mark Zuckerberg agrees with Clarence Thomas, because of Zuck's politically motivated op-ed saying that the internet needs new regulations. But saying Facebook wants new regulations (which was to (1) appease angry regulators and (2) twist those regulations to prevent competition) is nowhere near meaning that Zuckerberg supports common carriage claims. That's like taking someone saying "it would be good if people ate more vegetables" and responding "so clearly you think everyone should be on an all plant diet all the time!" It's nonsense.

Ohio has an interest in ensuring that Google, its users, and the entities whose information Google carries are aware that Google Search is a common carrier under Ohio law. Ohio also has an interest in ensuring that as a common carrier Google Search does not unfairly discriminate against third party websites; that Google carries all responsive search results on an equal basis; and that it provides the public with ready access to organic search results that the Google Search algorithms produce.

WHAT DOES THAT EVEN MEAN?!? How can search be on an "equal basis" when the whole point of search is to rank and discriminate so that the most useful results come first, and the least useful (or not at all useful, or harmful) results don't show at all?

And, again, Google's ranking of search results is an opinion. It's speech. It's expression. It's protected by the 1st Amendment.

I don't want a search engine designed by Ohio's Attorney General that is forced to give all the results. I want a search engine that gives me results that are well ranked to what I'm looking for.

To partially remedy the harm caused by Google’s self-preferencing, Ohio, in its second count, is entitled to declaratory relief that, as a common carrier and public utility, Google cannot self-preference on its Results Pages. Ohio is also entitled to injunctive relief that ends Google’s self-preferencing in Ohio by providing access to enhanced features on Results Pages that Google affords to its other business lines to other entities that may want to purchase such enhancements.

I mean, okay, fine. But that's an antitrust issue, not a common carriage one, and it still implicates some speech issues.

The details of the claims are no better. I honestly don't know how you run a search engine under these "requirements."

As a common carrier, Google, in its operation of Google Search, has a duty to carry information from all sources indiscriminately as compared to Google’s own information.

Wait, what? It has to carry "information from all sources indiscriminately"?! But the entire point of a search engine is to discriminate. Otherwise it's no longer a "search engine" it's just a random web page generator.

The crux of the lawsuit is then just about Google advertising its own services over those of competitors, which again is not a common carriage issue, but a competition one. It seems like a really weird and nonsensical attempt to end-run around antitrust law, basically because Ohio's attorney general wants to avoid dealing with federal law, and wants to focus on Ohio law.

I have trouble seeing how it could possibly succeed, or if it did succeed, how it would help anyone at all. And, again, it's completely bizarre to see Republicans, who have fought tooth and nail against common carriage in every other context, often referring to it (incorrectly!) as "socialism", now suddenly screaming to make clearly non-common carrier services into common carriers for the sake of some sort of culture war.

Filed Under: antitrust, common carrier, competition, ohio, search
Companies: google