Conservatives Want Common Carriage. They're Not Going to Like It.

from the that's-not-what-common-carrier-means dept

From calls to break up Big Tech to Florida’s latest anti-tech law, one thing is clear—America’s lawmakers and bureaucrats are looking to regulate the online world. Building on the momentum of the Facebook Oversight Board’s recent ruling on President Trump and Justice Thomas’s concurrence in Biden v. Knight Institute, alternative proposals like common carriage are gaining traction among conservative lawmakers looking for new regulatory solutions.

More and more conservatives critique social media by arguing that websites like Facebook, Twitter, and Google are effectively the modern public square that shouldn’t have moderation practices built to balance online safety and free speech. So it’s only natural that a proposal like common carriage gained traction in the Trump presidency and has not lost momentum since. Just look at Sen. Hagerty’s 21st Century FREE Speech Act.

Some conservative critics think treating these sites as common carriers ticks many of their boxes—less content moderation, less alleged anti-conservative bias, and more regulation of America’s tech companies. But they’re wrong. Not only is it an unconstitutional solution, its design to work around First Amendment jurisprudence will almost certainly make the internet worse, not better, for conservatives. Common carriage will inch the internet towards an online ecosystem devoid of family-friendly options and teeming with the worst humanity can offer— including the very content conservatives hate like pornography, indecency, and profanity.

An attempt at common carriage regulation is unlikely to succeed in court—social media simply doesn’t fit the criteria necessary for this centuries-old designation. Derived from common law, common carriage was a way for the entire public to receive and transport goods and services deemed essential. When America started its own classification of common carriage in the 1800s, the principle of nondiscrimination was at the forefront of the discussion. American courts identify industries and businesses as common carriers if they do not distinguish between customers or decide what they will and will not carry.

Nondiscrimination is a central feature of traditional common carriers, but it is not a feature of social media. Unlike the railroads and communications companies of the Gilded Age, social media relies on the ability to contextualize and discriminate between different content to provide useful information to users. Content moderation is at the center of that, providing websites the ability to balance free expression and online safety to maximize both and make the internet somewhere we want to spend time. Concerned parents shouldn’t have to wade through expletives, references to violence, and sexual content just to connect with their friends and family as well as protect their kids online.

The ability to moderate is a feature, not a bug, of social media. This is not a matter of transporting goods and services from California to New York—in fact, it's not really a matter of transporting anything. Rather than transporting data like telecommunications businesses, social media hosts content. They offer a space online on which content is posted and established in perpetuity as part of internet history, more like a museum than a railroad. Therefore, ensuring a curated collection of high-quality posts is a key part of their business model, rather than simply serving as a conduit of communication.

This is a matter of private forums and businesses with constitutional protections from government action under the Bill of Rights. Social media sites like any private businesses have First Amendment rights that prevent the government from coming in and forcing them to host speech they disagree with.

Placing social media under common carriage regulations would fall counter to their First Amendment rights and ensure content moderation is effectively impossible as the incentive to maintain online safety disappears. And by taking away websites’ ability to moderate what gets posted online, the internet could easily become rampant with unwanted, offensive, and disgusting content, rendering many services unsafe for use at work or with family. That would only run counter to the founding values and family principles that conservatives seek to protect.

By doing their utmost to ensure websites aren’t allowed to remove lawful but awful content, conservatives may feel like they’re fighting to defend the principles of free speech, but instead they are stifling the free speech rights of media companies and risking exposing the everyday American looking to connect with family, friends, and coworkers to the worst aspects of the internet.

Conservatives, like all Americans, have the right to voice their concerns about the decisions made by social media platforms—and they should do so. But they shouldn’t mistakenly support actions that could put American families and kids in harms’ way online and that would undermine free expression and free enterprise. No matter how it’s sliced or diced, common carriage classification will force social media and the internet writ large to become a cesspool of filth, completely devoid of either conservative or family-friendly values. Treating social media like common carriers could lead to a staggering increase of content that conservatives actively work to mitigate like online harassment, the proliferation of pornography, and other explicit materials that undermine the conservative commitment to family values.

Social media relies on the ability to discriminate between user-generated posts to succeed, actively not treating themselves like neutral transports of information or services like a common carrier would. With their longstanding practice of content moderation and their lack of a natural monopoly, the courts would simply be unlikely to categorize social media as common carriers. And we should be wary of categorizing websites for users of all ages as common carriers lest they become filled with offensive content even adults don’t want to engage with.

By turning to common carriage in their crusade to fight alleged anticonservative bias, conservatives might not like the result—an internet that ignores the best it offers while proliferating the worst.

Kir Nuthi is the Public Affairs Manager at NetChoice and a Contributor at Young Voices.

Filed Under: common carriage, conservatives, content moderation, family values, public square
Companies: facebook, google, twitter

Daily Deal: The All-In-One 2021 Super-Sized Ethical Hacking Bundle

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

The All-In-One 2021 Super-Sized Ethical Hacking Bundle has 18 courses to help you learn all you need to know about cyber security. You'll learn about ethical hacking, pen testing, securing wireless networks, bug bounties, and more. Courses cover Python, Metasploit, Burp, BitNinja and others. It's on sale for $43.

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

CNET Amplifies FCC's Carr's Attempt To Force 'Big Tech' To Pay 'Big Telecom' For No Reason

from the troll-tolls dept

So last week we noted how FCC Commissioner Brendan Carr had taken to Newsweek to dust off a fifteen year old AT&T talking point. Namely that "big tech" companies get a "free ride" on telecom networks, and, as a result, should throw billions of dollars at "big telecom" for no real reason. You'll recall it was this kind of argument that launched the net neutrality debate, when former AT&T CEO Ed Whitacre proclaimed that Google wouldn't be allowed to "ride his pipes for free." Whitacre was effectively arguing that in addition to paying for bandwidth, tech giants should pay him a troll toll, just because.

As we noted last week, this claim that technology giants (or anybody, really) gets a "free ride" when it comes to US telecom networks is laughable. Companies like Amazon, Google, and Netflix all pay billions of dollars in total for undersea cable runs, massive cloud storage, transit routes, and content delivery networks. Hell, Google is even a residential ISP. That's on top of the money consumers, businesses, and Silicon Valley giants pay for their own bandwidth, which in the US is often some of the highest in the developed world thanks to regional monopolization and captured regulators (precisely like Carr).

In reality, the argument that "big tech" gets a "free ride" has long been a flimsy proxy for telecom providers who believe it's their God-given right to get a cut of massive Silicon Valley ad revenues, even if that makes no coherent sense. It has popped up again and again for fifteen straight years, usually out of the mouths of those prodded into making it by telecom policy and lobbying organizations.

So when it popped up again last week I was fairly sure it would be ignored. Until CNET grabbed Carr's column believing it was in good faith, and amplified it to even more people:

"In a follow-up interview with CNET on Friday, Carr said companies like Facebook, Amazon, Apple and Netflix have been enjoying a free ride on the internet infrastructure, while millions of Americans have been paying what amounts to an additional tax on their telephone bills for broadband service.

"It's time for Big Tech to pay its fair share," Carr said.

CNET barely challenges Carr's assertion that these companies get a "free ride," even though you can't go five feet without running into an announcement where a company like Google is spending big bucks on telecom infrastructure. While Carr is right that the existing FCC USF and subsidization model does need fixing as contributions drop, Carr's not actually coming at this argument in good faith. If he were, he'd be able to mention in passing the billions we throw at telecom giants for fiber networks they routinely half deploy, or the countless examples of outright subsidy fraud that have plagued the telecom sector for years.

Instead the onus for funding America's unfinished broadband deployments is for whatever reason thrown at the feet of Silicon Valley, something Carr rambles on at length about, as if telecom sector monopolization/corruption and FCC incompetence is somehow Silicon Valley's fault:

"When it comes to deciding which companies should contribute to the fund and how much they should be required to pay, Carr suggests that legislators look at companies that benefit the most financially from the use of internet infrastructure.

..."For instance, Google's ad revenues -- I think those are fair game for looking at a charge to support the network," he said. "The same with Facebook or Apple's App Store, maybe even iPhone cloud services and certainly the [video] streamers."

But again, this presumes that these companies don't already pay massive amounts of money for bandwidth and telecom infrastructure. Or that telecom giants have somehow received an unfair shake, despite gleaning untold billions in tax cuts, subsidies, merger approvals, and regulatory favors in exchange for network investment and job promises that routinely never show up. CNET does at least point out this is all not new, though it's framed in the "he said, she said" view from nowhere journalistic approach that usually leaves readers wondering which side is telling the truth:

"This is an argument that large internet service providers have been pushing for years," former FCC Chairman Tom Wheeler said in an interview. In 2006, AT&T's former CEO Edward Whitacre was among the first to suggest publicly that companies such as Google shouldn't be given a "free ride" on his network. The comments ignited more than a decade of debate over net neutrality regulations.

CNET then proceeds to quote the telecom lobby, trotting out Rick Boucher, one time fair use champion turned AT&T lobbying and policy prop:

"Groups representing the telecommunications industry largely support Carr's proposal. The Internet Innovation Alliance, which represents AT&T along with telecom equipment makers like Alcatel Lucent, Ciena and Corning, says it makes sense. "Requiring Big Tech to help close the digital divide is an obvious and attractive solution to the Universal Service Fund (USF) crisis," former Rep. Rick Boucher, an honorary chair of the organization, said in a statement. "It makes sense for the Amazons, Googles, Apples and Facebooks of the world -- that depend upon and benefit from Americans being online -- to back efforts to achieve universal broadband. It's in their interest, as their user bases would be bolstered."

But it doesn't make sense in the broader context of the fact that US taxpayers have thrown countless billions already at telecom giants for fiber networks that mysteriously only wind up half deployed. That's not Amazon, Netflix, or Google's responsibility to fix, however much justified animosity you may have at these companies for dodgy behavior on numerous other fronts.

The story ends with Carr getting the last word about how he's just looking out for the little guy. But there's been no indication, at any point in Carr's long history of questionable claims, that this is actually true. What's more likely is that companies like AT&T, worried about the Biden broadband plan driving competition into their markets, want to capitalize on the animosity toward "big tech" by once again trotting out a lame argument that the real solution lies not in holding legislators, regulators, or telecom giants accountable for years of fraud and wasted money, but in taxing Silicon Valley. And Carr, never one to see a telecom argument he doesn't breathlessly support, was more than happy to amplify it.

Filed Under: big tech, brendan carr, fcc, free ride

Facebook Says Trump's 'Indefinite' Suspension Is Now Two Years Off The Platform, And Then It'll See If He'll Behave

from the i-mean,-it's-something dept

In case you've been living under a rock for all of 2021, following the January 6th mob attack at the Capitol, where then President Donald Trump went to social media and posted things that could be read as egging on his insurrectionist followers, Twitter and Facebook suspended Trump's accounts. A few weeks later, the still relatively new and untested Oversight Board that will review a few Facebook decisions agreed to review the Trump decision. In late April, it upheld the removal, but said that Facebook's decision being for an "indefinite" length violated the company's own policies, and told the company it needed to either put a time limit on it, or come up with an actual rationale for a permanent suspension.

Last week, Facebook announced its response: the suspension would now be officially for two years -- but that doesn't mean Trump will automatically get his account back (just in time to ramp up his 2024 campaign...).

We are today announcing new enforcement protocols to be applied in exceptional cases such as this, and we are confirming the time-bound penalty consistent with those protocols which we are applying to Mr. Trump’s accounts. Given the gravity of the circumstances that led to Mr. Trump’s suspension, we believe his actions constituted a severe violation of our rules which merit the highest penalty available under the new enforcement protocols. We are suspending his accounts for two years, effective from the date of the initial suspension on January 7 this year.

At the end of this period, we will look to experts to assess whether the risk to public safety has receded. We will evaluate external factors, including instances of violence, restrictions on peaceful assembly and other markers of civil unrest. If we determine that there is still a serious risk to public safety, we will extend the restriction for a set period of time and continue to re-evaluate until that risk has receded.

When the suspension is eventually lifted, there will be a strict set of rapidly escalating sanctions that will be triggered if Mr. Trump commits further violations in future, up to and including permanent removal of his pages and accounts.

As is alluded in that snippet, the company also announced an official policy that applies "heightened penalties for public figures during times of civil unrest and ongoing violence." Just the fact that this needs to be its own category of content moderation policies should tell you something about the complexity of coming up with policies that can be equally applied across all situations. Every situation is different, and no policy is going to take into account all context. Two years is the new maximum suspension under this policy:

In establishing the two year sanction for severe violations, we considered the need for it to be long enough to allow a safe period of time after the acts of incitement, to be significant enough to be a deterrent to Mr. Trump and others from committing such severe violations in future, and to be proportionate to the gravity of the violation itself.

Of course, the Oversight Board tasked Facebook with much more than just putting a timeline on Trump's suspension and Facebook buried all the details beneath the headline grabbing "two years!" announcement.

Most of those policies focus on how the company deals with high profile and influential users who are violating its policies, and how it handles whether or not certain user speech is "newsworthy" or not. In particular, politicians will no longer receive an automatic assumption that all their speech is newsworthy. Instead, that speech will be judged in the same way as anyone else's speech for newsworthiness -- or so Facebook claims. In all reality, the actual lesson in all of this is that it's not possible to judge things equally. There is always additional context that makes each situation somewhat unique.

So, honestly, the only real end result here is that politicians won't receive the assumption of newsworthiness and seem more likely to face suspensions under these new policies.

For another view on the details of how Facebook dealt with this, read Evelyn Douek's analysis, in which she suggests that Facebook is basically doing the least possible that it can, which is allowed under the somewhat weak charter it put on the Oversight Board. Many people have highlighted how weak that charter is, but this may have been the first time it's been put to the test, and shows that when Facebook really doesn't want to commit to serious change, it has ways to avoid it. I'm less convinced that's the true outcome here, and honestly given how the Oversight Board has acted so far, I suspect that this weakish response from Facebook is only likely to embolden the Oversight Board to continue to hammer the company over its failures, even if Facebook wants to avoid committing to real change in response.

Filed Under: content moderation, donald trump, newsworthy, world leaders
Companies: facebook, oversight board

FBI Ignores Internal Guidelines To Target Readers Of Reporting On The Shooting Of FBI Agents (Updated)

from the WTF-FBI dept

For some reason, the FBI is targeting readers of reporting on a shooting of FBI agents -- something that's both inexplicable and an oblique assault on the First Amendment rights of those targeted. The news service is fighting back, as Josh Gerstein reports for Politico.

Newspaper publisher Gannett is fighting an effort by the FBI to try to determine who read a specific USA Today story about a deadly shooting in February near Fort Lauderdale, Fla., that left two FBI agents dead and three wounded.

The subpoena, served on Gannett in April, seeks information about who accessed the news article online during a 35-minute window starting just after 8 p.m. on the day of the shootings. The demand — signed by a senior FBI agent in Maryland — does not appear to ask for the names of those who read the story, if the news outlet has such information. Instead, the subpoena seeks internet addresses and mobile phone information that could lead to the identities of the readers.

The FBI says the information is needed for an ongoing "investigation." It's unclear what's being investigated since the shooter was killed by FBI agents after an hours-long standoff. Touching on another bit of Techdirt subject matter, the shooter -- who was being served a warrant for child porn possession -- may have been tipped off by his doorbell camera, perhaps prompting his violent response.

The information sought targets readers who accessed the story several hours after it was published and after the suspect had already been killed. The subpoena [PDF] served by the government shows Gannett immediately raised objections after being served with it, pointing out the FBI appeared to be skirting the DOJ's guidelines for seeking information from new sources, whether it involves journalists or readers.

Since the FBI refused to withdraw the subpoena, Gannett has taken this up with the court directly. The motion to quash [PDF] points out courts have repeatedly upheld protections for news readers, something that has helped American citizens sidestep the government's worst intentions, including the targeting of alleged Communists during the McCarthy-era "Red Scare."

Here's what the Supreme Court said more than 50 years ago:

A requirement that a publisher disclose the identity of those who buy his books, pamphlets, or papers is indeed the beginning of the surveillance of the press… The finger of the government leveled against the press is ominous. Once the government can demand of a publisher the names of purchasers of his publications, the free press as we know it disappears.

The same concerns are raised here, both by the FBI's actions and Gannett's response. While the FBI isn't technically seeking the disclosure of readers' identities (which may or may not be known by USA Today), it is seeking information that will allow the FBI to possibly identify readers. It's pretty much the same thing as telling Gannett to name names, even if the government is too intellectually dishonest to be upfront about it.

And, again, it's unclear what the FBI hopes to accomplish with this subpoena. It seems unlikely readers accessing the story hours after publication and a half-day after the shooter was killed had anything to do with the criminal acts the story covers. Not only that, but the agent issuing the subpoena works for the FBI's Child Exploitation Operational Unit -- content USA Today was very definitely not making available at its site. The whole thing is baffling which makes the constitutional concerns that much more severe. And the lack of immediately apparent investigative importance makes it that much more likely the DOJ's guidelines for targeting protected First Amendment activity were ignored.

UPDATE: The DOJ has withdrawn the subpoena, claiming it was able to identify the "child sexual exploitation offender by other means." While this is good news for Gannett and its readers, it still doesn't answer why the FBI thought the readers of this particular bit of reporting on an event that was covered across the nation included the suspect it was seeking.

Filed Under: 1st amendment, fbi, subpoena, usa today
Companies: gannett

European Commission Betrays Internet Users By Cravenly Introducing Huge Loophole For Copyright Companies In Upload Filter Guidance

from the over-to-you,-CJEU dept

As a recent Techdirt article noted, the European Commission was obliged to issue "guidance" on how to implement the infamous Article 17 upload filters required by the EU's Copyright Directive. It delayed doing so, evidently hoping that the adviser to the EU's top court, the Court of Justice of the European Union (CJEU), would release his opinion on Poland's attempt to get Article 17 struck down before the European Commission revealed its one-sided advice. That little gambit failed when the Advocate General announced that he would publish his opinion after the deadline for the release of the guidance. The European Commission has finally provided its advisory document on Article 17 and, as expected, it contains a real stinker of an idea. The best analysis of what the Commission has done, and why it is so disgraceful comes from Julia Reda and Paul Keller on the Kluwer Copyright Blog. Although Article 17 effectively made upload filters mandatory, it also included some (weak) protections for users, to allow people to upload copyright material for legal uses such as memes, parody, criticism etc. without being blocked. The copyright industry naturally hates any protections for users, and has persuaded the European Commission to eviscerate them:

According to the final guidance, rightholders can easily circumvent the principle that automatic blocking should be limited to manifestly infringing uses by "earmarking" content the "unauthorised online availability of which could cause significant economic harm to them" when requesting the blocking of those works. Uploads that include protected content thus "earmarked" do not benefit from the ex-ante protections for likely legitimate uses. The guidance does not establish any qualitative or quantitative requirements for rightholders to earmark their content. The mechanism is not limited to specific types of works, categories of rightholders, release windows, or any other objective criteria that could limit the application of this loophole.

The requirements that copyright companies must meet are so weak that it is probably inevitable that they will claim most uploads "could cause significant economic harm", and should therefore be earmarked. Here's what happens then: before it can be posted online, every earmarked upload requires a "rapid" human review of whether it is infringing or not. Leaving aside the fact that it is very hard for legal judgements to be both "rapid" and correct, there's also the problem that copyright companies will earmark millions of uploads (just look at DMCA notices), making it infeasible to carry out proper review. But the European Commission also says that if online platforms fail to carry out a human review of everything that is earmarked, and allow some unchecked items to be posted, they will lose their liability protection:

this means that service providers face the risk of losing the liability protections afforded to them by art. 17(4) unless they apply ex-ante human review to all uploads earmarked by rightholders as merely having the potential to "cause significant economic harm". This imposes a heavy burden on platform operators. Under these conditions rational service providers will have to revert to automatically blocking all uploads containing earmarked content at upload. The scenario described in the guidance is therefore identical to an implementation without safeguards: Platforms have no other choice but to block every upload that contains parts of a work that rightholders have told them is highly valuable.

Thus the already unsatisfactory user rights contained in Article 17 are rendered null and void because of the impossibility of following the European Commission's new guidance. That's evidently the result of recent lobbying from the copyright companies, since none of this was present in previous drafts of the guidance. Not content with making obligatory the upload filters that they swore would not be required, copyright maximalists now want to take away what few protections remain for users, thus ensuring that practically all legal uses of copyright material -- including memes -- are likely to be automatically blocked.

The Kluwer Copyright blog post points out that this approach was not at all necessary. As Techdirt reported a couple of weeks ago, Germany has managed to come up with an implementation of Article 17 that preserves most user rights, even if it is by no means perfect. The European Commission, by contrast, has cravenly given what the copyright industry has demanded, and effectively stripped out those rights. But this cowardly move may backfire. Reda and Keller explain:

the Commission does not provide any justification or rationale why users' fundamental rights do not apply in situations where rightholders claim that there is the potential for them to suffer significant economic harm. It's hard to imagine that the CJEU will consider that the version of the guidance published today provides meaningful protection for users' rights when it has to determine the compliance of the directive with fundamental rights [in the case brought by Poland]. The Commission appears to be acutely aware of this as well and so it has wisely included the following disclaimer in the introductory section of the guidance (emphasis ours):

"The judgment of the Court of Justice of the European Union in the case C-401/192 will have implications for the implementation by the Member States of Article 17 and for the guidance. The guidance may need to be reviewed following that judgment".

In the end this may turn out to be the most meaningful sentence in the entire guidance.

It would be a fitting punishment for betraying the 450 million citizens the European Commission is supposed to serve, but rarely does, if this final overreach causes upload filters to be thrown out completely.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: article 17, copyright, eu, eu commission, germany, upload filters, user rights

Alabama Deputy Sued After Cuffing An Arrestee So Tightly His Hand Had To Be Amputated

from the cruelty-is-often-the-point dept

There's a saying lots of cops and cop defenders use. It rhymes, so it's easy to remember and even easier to deploy carelessly anytime someone expresses doubts about excessive force or excessive sentencing.

"Don't do the crime if you can't do the time."

Thanks, Baretta. I'm not sure how Robert Blake feels about this catchphrase after his trip through the criminal justice system, but it nonetheless persists.

But what happens if you don't do the crime, still do the time, and then have something truly awful happen to you as a result of your forced "interaction" with local law enforcement? Well, things like this happen... things that should never happen.

Before Giovanni Loyola was arrested in February 2020, he enjoyed using his hands and worked mainly in construction. Now the 26-year-old is unable to fasten his own belt or tie his shoes, his attorney said.

Loyola had segments of fingers removed in several operations last year, and doctors ultimately had to amputate his entire left hand. According to a federal civil rights complaint filed in U.S. District Court for the Northern District of Alabama last month, the amputation was the result of injuries sustained from being left for hours in overly tight handcuffs after a disorderly-conduct arrest.

Yeah, that's the "time" Loyola will be doing for the rest of his life for the "crime" of telling sheriff's deputies there was no altercation happening at his home. The lawsuit [PDF] (which the Jeff Bezos-owned Washington Post apparently can't afford to make available at its website) says Jefferson County (Alabama) deputy Christopher Godber showed up at Loyola's mothers house in response to reports two males were fighting and carrying weapons.

Loyola was watching TV at the time and no fighting was happening at the residence. Apparently, Deputy Godber didn't care for the "nothing to see here, please move along" answers he was receiving from Loyola. So, he needlessly escalated the situation.

When Plaintiff answered the door he asked the deputies standing there what was wrong. Deputy Godber, without answering and without asking permission to enter the home, reached inside the doorway, grabbed Plaintiff by the wrist and jerked him outside the home and down the steps.

Deputy Godber then slammed Plaintiff against a car, threw him to the ground and punched him in the face with his fist.

Deputy Godber then cuffed Plaintiff’s hands together behind his back extremely tightly and placed his knee on Plaintiff’s upper back with Deputy Godber’s weight on the knee.

According to the lawsuit, Deputy Godber had a good 50 pounds on the person he was restraining, not to mention the advantage of having both of his hands uncuffed. Godber still holds the advantage, months after this arrest, with Loyola losing one hand to Godber's refusal to loosen the cuffs.

Loyola then spent the weekend in jail. He was arrested for "contempt of cop:" disturbing the peace and resisting arrest. Outstanding warrants for traffic violations kept him in jail for ten more days. He was given no medical treatment while incarcerated. By the time he was released, it was too late to save his hand.

After Plaintiff got out of jail on February 28, 2020, his left wrist was still in tremendous pain. He went to Christ Health Center where the physician provided him with a medical excuse stating that “[h]e was found to have a severe problem with blood flow to his left hand and is in need of emergent surgery.”

Plaintiff was admitted to St. Vincent’s East and remained there until March 2, 2020. 28. On February 28, upon admission to the Emergency Department, the notes state that Plaintiff had “gray fingertips and concern for necrosis of the left hand. He has had increasing pain in his fingertips after he was handcuffed 4 days ago and sent in from Christ Health Center for rule out of dissection.”

First, surgeons removed two fingertips. But the necrosis had advanced too far to save the hand.

Plaintiff went home but returned to the hospital on March 17, 2020, complaining of extreme pain in his fingers. Plaintiff was admitted to the hospital on March 17, 2020 and remained there until March 25, 2020. Those medical records state that “He reports he was arrested about 3 weeks ago and after wearing handcuffs his fingers turned blue and became painful.”

Over the next ten months Plaintiff went to Saint Vincent’s Hospital and then to UAB for continued treatment of his hand, but due to the injuries inflicted on him by the deputies’ improper use of handcuffs, Plaintiff’s left hand has had to be amputated.

Apart from the obvious senseless permanent injury inflicted on Loyola, the lawsuit also alleges other Fourth Amendment violations, like the illegal seizure of Loyola by the deputy who dragged him out of his house before throwing him to the ground and cuffing him, And there was a supposed "safety sweep" of the house no one was fighting in -- one that happened with all residents outside of the home and (obviously) without a warrant.

"Don't do the crime." But no crime had occurred until Deputy Godber escalated the situation by reaching across the house's threshold to grab Loyola. Anything that happened past that point was pretty much manufactured by the deputy's deployment of force. The incident report claims Loyola was "drunk and belligerent" but those aren't criminal acts, especially since Loyola was still in his own home -- right up until Deputy Godber dragged him out of it. Calling the violent arrest an "altercation" is just standard exonerative prose -- something seen in pretty much every report covering deployments of excessive force.

This call could have been handled without an arrest and without a man losing his hand and his livelihood. But it wasn't because the law enforcement officer on the scene decided it had to go the way it did. At the end of this -- even if Loyola wins in court -- Deputy Godber will still have his job and both of his hands. At worst, he may only be out of a job temporarily. But the punishment inflicted on Loyola by Godber will last a lifetime.

Filed Under: alabama, giovanni loyola, police brutality

Does Taking Down Content Lead Ignorant People To Believe It's More Likely To Be True?

from the well-that's-a-tough-question dept

Harpers has a giant and fascinating article by Barrett Swanson entitled The Anxiety of Influencers that has received some attention online. Most of the reactions are the kind of typical tut tutting about the existence of TikTok/Instagram influencers whose entire (quite short) careers as "influencers" are based on their ability to get famous on social media for influencing. I do understand why people -- especially older folks (a category I now inhabit myself) -- look down upon these stories and shake their heads and wonder "what has happened to the children these days?" However, I'm more in the camp of recognizing this kind of thing happens in every generation, and I don't begrudge kids these days from trying to chase a dream, even if it feels like a silly one to someone not of that generation. There will always be young people chasing dreams, and along with it old people complaining about the kids these days. I don't think that approach is particularly useful, so I'll just say that the article is an interesting window into some of the "collab houses" that have sprung up all over (though mostly in LA), full of kids trying to become famous as influencers.

The reason this is here on Techdirt is one tiny bit of the article that touches on content moderation. At one point in the article, Swanson -- who deftly alternates between chronicling "the kids these days," envying some of their fame and attention, and recognizing just how preposterous all of this is -- is talking with Chase Zwernemann, who (perhaps somewhat incredibly) is one of the "adults" in the collab house space at a geezerly 21 years old, enabling him to be "VP of talent management" for what he and his colleagues want to suggest is an academy to produce influencers. And Chase appears to have some interesting views about the state of the world, and what he learns online.

Chase, the media liaison and self-described “influencing professor,” agrees. Later that day, he will tell me that “we’ve been kind of lucky to have these outlets across the last few months because we’ve been more exposed to what’s really going on.” For instance, just a few weeks ago, he was at home scrolling through his phone as a ritual of pre-sleep entertainment, at which point he stumbled upon “some kind of documentary” about the apparently rampant levels of Satanism in the U.S. entertainment industry. The documentary offered a detailed exegesis of demonic iconography, which supposedly many directors embed in their TV shows and movies. “It freaked me out, one hundred percent,” Chase says, “because I’ve seen those types of things—those signs and symbols—in these entertainment people’s offices, and so then to see this documentary and to start putting the pieces together, I mean, it’s nuts, man.”

At this point, I nonchalantly inquire as to whether Chase could maybe brandish his smartphone and pull up the video in question, and I’m soon made to view something called “Out of Shadows,” which has been posted on YouTube by an account called—I shit you not—Thinqing QAnon. Later, when I ask Chase whether he’s ever heard about the QAnon conspiracy, he says no, but explains that the video must be legit because “it’s gotten deleted multiple times off the internet, which is insane.” Epistemologically, this is where we are as a country: when content gets expurgated because of blatant misinformation, it is taken as a sure sign of that source’s truthfulness.

And... frankly... I'm not quite sure how to respond to that. Sure, there's an element of The Streisand Effect in there, which I understand pretty well. But, this is a slight veering off from the Streisand Effect -- assuming that every takedown via content moderation must only be done because of the "hidden truths" the content reveals.

This certainly gets to the heart of some of the cultish conspiracy theory nonsense that goes around these days. In this view, nothing can be proven false, because merely attempting to do so somehow validates it. We've seen this before, with other conspiracy theories, but it makes me wonder if the scale is different in this case.

And that then opens up the question of what, if anything, should be done in such a situation. Leaving up blatantly false disinformation that is sucking people in with nonsense and lies is obviously problematic. But so is recognizing that removing the disinformation may lead people to believe in it more strongly. How do you square those two things and come up with a plan to respond? Part of it, obviously, is that different people react to things in different ways. Clearly, young Chase's reaction to finding out this content keeps getting deleted is not the way everyone (or even most people) will respond. But it's unclear how many others would fall into that camp. Or what to do about the Chases of this world that are taking information that should be seen as evidence that they're mainlining disinformation, and interpreting it instead as evidence that the misinformation is true.

To some extent, this brings me back to a point that I've been making for years concerning questions of content moderation: we can't expect "someone else" (government, big companies, journalists, fact checkers, etc.) to solve every problem. That's just not how it works. To some extent, at some point, there needs to be some personal responsibility and some level of media literacy for the people who consume all this stuff. And clearly we've got a long way to go on that front.

Filed Under: content moderation, disinformation, influencers, truth

Gag Order Lifted On Yet Another Trump DOJ Leak Investigation That Targeted Journalists

from the serving-the-president-is-more-important-than-serving-the-people-apparently dept

Another leak investigation that involves the DOJ going after journalists' communications has been revealed. This would be the third time since Biden took office that subpoenas targeting journalists have had their gag orders removed, allowing the public to see what the DOJ was up to during Trump's unceremonious reign as president.

The previous revelations involved journalists employed by the Washington Post and CNN. This one targets one of Trump's favorite media punching bags, the "failing" New York Times. This investigation dates all the way back to James Comey's last months as the head of the FBI, a position he was ousted from when he failed to show Trump the required amount of obeisance.

The letter this week disclosing the seizure of phone records involving the Times reporters — Matt Apuzzo, Adam Goldman, Eric Lichtblau and Michael S. Schmidt — had hinted at the existence of the separate fight over data that would show whom they had been in contact with over email.

[...]

The Justice Department has not said what leak it was investigating, but the identity of the four reporters who were targeted and the date range of the communications sought strongly suggested that it centered on classified information in an April 2017 article about how James B. Comey Jr., the former F.B.I. director, handled politically charged investigations during the 2016 presidential campaign.

The article not specifically mentioned in the government's subpoena dealt with an email or memo not found in the Clinton email dump released by the State Department and available to search at Wikileaks -- one that said then-AG Loretta Lynch would throttle the investigation into Hillary Clinton's private email server. Comey, however, reopened that investigation shortly before the election, something that may have played a part in Trump's election win.

This memo, however, most likely prompted Comey to take the case public back in 2016. Comey held a press conference announcing the results of the investigation -- one that did not include criminal charges for Clinton. This is generally the sort of thing the DOJ and FBI rarely do, especially when the target of an investigation is a presidential candidate. Comey shrugged off appearances of politically-motivated impropriety twice, but still failed to satisfy his new boss' desire to be surrounded by loyalists.

The Biden Administration has placed Merrick Garland in charge of the DOJ and appears to be doing some house cleaning. Questionable investigative efforts involving leaks and journalists have been stripped of their gag orders and made public. But there's a delay here that doesn't square with the new administration's statement that it respects the First Amendment and has no interest in targeting journalists. This one rolled on for a few months after Biden's election, allowing the DOJ to continue pursuing these journalists' communications while swearing their supervisors to secrecy.

While the Trump administration never informed The Times about the effort, the Biden administration continued waging the fight this year, telling a handful of top Times executives about it but imposing a gag order to shield it from public view, said the lawyer, David McCraw, who called the move unprecedented.

The gag order prevented the executives from disclosing the government’s efforts to seize the records even to the executive editor, Dean Baquet, and other newsroom leaders.

Mr. McCraw said Friday that a federal court had lifted the order, which had been in effect since March 3, freeing him to reveal what had happened.

The DOJ was ultimately unable to obtain the email records it requested from Google. The company fought the subpoena, refusing to hand over the requested information. And with other DOJ officials recommending the case be closed because it was unlikely to result in criminal charges, the DOJ abandoned this effort and finally allowed the gag order to be lifted.

But even the lifting of the gag order was inexplicably delayed. The DOJ claimed in January that any notification would jeopardize the investigation and give targets an opportunity to destroy evidence. And in March, the DOJ continued to press for secrecy, asking a judge for permission to tell NYT's legal team but refusing to allow the targeted journalists to be notified about the government's desire to collect their email records.

While it's good to see the new DOJ express its support of journalists and the First Amendment, we need to remember Biden served two terms under Barack Obama -- a president who set records for leak investigations and prosecuted whistleblowers. Cleaning up Trump and Barr's mess is the right thing to do but the DOJ will continue to serve whoever's in charge and is always willing to wave aside constitutional concerns if it's politically expedient to do so.

Filed Under: adam goldman, doj, emails, eric lichtblau, fbi, gag order, james comey, journalism, leaks, matt apuzzo, merrick garland, michael schmidt, records requests, whistleblowing

Nigeria Suspends All Of Twitter After It Removes President's Tweet

from the you-want-to-talk-censorship? dept

If you want to see what censorship is, let's take a look at Nigeria banning Twitter indefinitely in response to Twitter removing a tweet by President Muhammadu Buhari that it believed violated the site's policies. The tweet was read to be a threat to brutally kill those engaging in attacks on public infrastructure, in particular police stations in Southeast Nigeria. Buhari's tweet harkened back to the way dissenters were dealt with during the Nigerian Civil War:

"Many of those misbehaving today are too young to be aware of the destruction and loss of lives that occurred during the Nigerian Civil War. Those of us in the fields for 30 months, who went through the war, will treat them in the language they understand," Buhari wrote in the now-deleted tweet, referring to the brutal two-year Nigeria-Biafra war, which killed an estimated one to three million people, mostly from the Igbo tribe in the eastern part of the country between 1967-1970.

While the announcement that Twitter would be blocked does not reference its decision to remove that tweet, it instead says the ban is because of ""the persistent use of the platform for activities... capable of undermining Nigeria's corporate existence." I honestly don't understand what the hell that means. Basically, it seems like a twisting of the usual nonsense we see from some corners of the internet, who insist that any moderation of anyone is somehow an affront to their rights, and doubly so when it's a government official.

But, sorry, no one has a right to demand a private company host their speech.

Apparently, part of the process of blocking Twitter in the country involved requiring every social company to get a license from the country's broadcast regulator:

The government gave no details on how the ban would work in practice, or any explanation of how Twitter had undermined Nigeria's corporate existence.

Its statement, which was released on Twitter, also revealed that the national broadcasting regulator, NBC, has been told to start "the process of licensing all OTT [internet streaming services] and social media operations in Nigeria".

That certainly sounds like a prelude to an even harsher crackdown on social media in the country, which has been one of a few growing tech hubs in Africa.

Separately, though, various telcos have been told to block Twitter, but apparently people are still getting around the block, leading the Nigerian government, in a moment of true patheticness, to insist that it will prosecute anyone who gets around the ban. That doesn't seem at all desperate.

It's also interesting, given that in 2019, Twitter CEO Jack Dorsey talked about the importance of Africa, and even announced plans to live there for an extended period of time in 2020 (a plan that was put on hold because of the pandemic). Of course, a couple months ago, Twitter announced that it's African offices would be based in Ghana, and not Nigeria. So you have to wonder if that also played a role in Nigeria's sudden hostility to the company. Though, of course, the reasons Twitter mentioned for why it chose Ghana maybe should have caused the Nigerian government to pause before rushing in to silence the entire website:

As a champion for democracy, Ghana is a supporter of free speech, online freedom, and the Open Internet, of which Twitter is also an advocate. Furthermore, Ghana’s recent appointment to host The Secretariat of the African Continental Free Trade Area aligns with our overarching goal to establish a presence in the region that will support our efforts to improve and tailor our service across Africa.

Still, this is what actual censorship is. A government stepping in and blocking speech in retaliation for other speech. Not that the US is any better, of course. It was less than a year ago that President Trump tried to do the same thing with TikTok and WeChat.

Filed Under: blocking service, censorship, free speech, muhammadu buhari, nigeria
Companies: twitter