Senators Hawley & Feinstein Join Graham & Blumenthal In Announcing Bill To Undermine Both Encryption And Section 230

from the for-the-children dept

In late January, we had an analysis of an absolutely dreadful bill proposed by Senators Lindsey Graham and Richard Blumenthal -- both with a long history of attacking the internet -- called the EARN IT Act. The crux of the bill was that, in the name of "protecting the children," the bill would drastically change Section 230 of the Communications Decency Act, making companies liable for "recklessly" failing to magically stop "child sexual abuse material" -- opening them up to civil lawsuits for any such failures. Even worse, it would enable the Attorney General -- who has made it quite clear that he hates encryption -- to effectively force companies to build in security-destroying backdoors.

On Thurdsay, the EARN IT Act (Eliminating Abusive and Rampant Neglect of Interactive Technologies Act) was officially introduced with two additional awful Senators: from the Republican side there's tech hating Josh Hawley, and on the Democratic side, there's encryption hating Dianne Feinstein.

This version of the bill has a few changes from the draft version that made the rounds before, but in effect it is trying to accomplish the same basic things: forcing companies to backdoor encryption or lose Section 230 protections, while at the same time opening up platforms to a wide range of lawsuits (a la what we're seeing with FOSTA suits) from ambulance chasing tort lawyers trying to shake down internet platforms for money, while claiming to do so in the name of "protecting the children."

Senator Ron Wyden, who authored Section 230 decades ago, had the most succinct explanation of why the EARN IT Act is bad on multiple levels:

After the federal government spent years ignoring the law and millions of reports of the most heinous crimes against children, William Barr, Lindsey Graham and Richard Blumenthal are offering a deeply flawed and counterproductive bill in response.

This terrible legislation is a Trojan horse to give Attorney General Barr and Donald Trump the power to control online speech and require government access to every aspect of Americans' lives. It is a desperate attempt to distract from the Justice Department's failure to request the manpower, funding and resources to combat this scourge, despite clear direction from Congress more than a decade ago.

While Section 230 does nothing to stop the federal government from prosecuting crimes, these senators claim that making it easier to sue websites is somehow going to stop pedophiles.

This bill is a transparent and deeply cynical effort by a few well-connect corporations and the Trump administration to use child sexual abuse to their political advantage, the impact to free speech and the security and privacy of every single American be damned.

There are a number of key points on this, starting with the fact that Barr's DOJ has consistently failed to do what it's mandated by Congress to do in fighting against child sexual exploitation. Any news story that fails to mention this key point is failing you in not explaining the context. Barr is looking for someone to blame for his own failures, and he's picked on the politically convenient internet industry -- while simultaneously getting to undermine the encryption he hates.

Another key point in the Wyden statement is that much of the EARN IT Act is dubious and cynical, but as Berin Szoka pointed out, this is likely to make stopping actual sexual exploitation that much more difficult:

“Perversely, the EARN IT Act makes it easier to sue websites than people who actually create and disseminate CSAM,” explained Szóka. “Facing potentially staggering civil liability means website providers will have no choice but to comply with the Commission’s nominally voluntary ‘best practices.’”

In that same link, Berin highlights another Constitutional problem with the Act, which could make it much more difficult for law enforcement to track down those actually responsible for child porn -- a perverse end result, which is not unlike what we've already seen happen with sex trafficking in response to FOSTA, where police have been saying that the law has made it more difficult for them to investigate trafficking.

This is a bad bill, put forth for cynical reasons, wrapped in a insincere "protect the children" blanket -- pushed for by a crew of companies who failed to innovate on the internet, and sponsored by Senators who have a long history of making it clear that they will beat up on civil liberties and innovation at any opportunity.

Filed Under: cda 230, csam, dianne feinstein, earn it act, encryption, intermediary liability, josh hawley, lindsey graham, richard blumenthal, section 230, think of the children, william barr

William Barr's Move To Rid The DOJ Of Independence Shows One Of Many Reasons Josh Hawley's FTC Plan Is Dangerous

from the a-banana-republic-if-you-can-keep-it dept

Karl already took some time to highlight just one of the many absurdities in Senator Josh Hawley's "plan" to revamp the FTC by turning it into a sub-agency of the Justice Department, rather than an independent agency. First of all, the Justice Department is the law enforcement arm of the government, and the FTC is supposed to be engaged in protecting consumers from "unfair or deceptive acts" by businesses. It is a separate and different focus than straight law enforcement by the Justice Department.

But, even more telling is that at just about the same time as Hawley was making his pitch to dump the FTC's current five commissioner structure, in favor of a single director working directly for the Attorney General, we find out that the current Attorney General, William Barr, has broken with decades of tradition that had made it clear that the Justice Department was an independent agency, separate from the White House. As was widely reported, Barr has made it clear that he will step in and protect the President on matters that concern the President. As such, the DOJ is no longer an independent law enforcement agency, but it is now the state police, doing the bidding of the President.

That should concern just about everyone -- no matter which party you're in. And the idea that the FTC should take sole orders from what is now a political office, including in investigating companies and potentially fining or breaking them up, is hugely problematic. You would think that Republicans, like Hawley, would recognize this. However, Hawley -- who once pretended to be for smaller government and for "keeping government out of business" -- has long shown his true colors as someone who simply loves to use the government to get his own interests in place. And if that means enabling his vendetta against a group of companies he doesn't like, so be it.

We've had our concerns with both the DOJ and the FTC over the years, but putting the FTC into the Justice Department will make all of those concerns worse, not better. At a time when the Justice Department can no longer be considered an independent agency from the White House, it is especially concerning that someone would seek to shove the FTC into that setting.

Filed Under: doj, ftc, independent agencies, josh hawley, politicization, politics, william barr

Why Do Josh Hawley's Cures For 'Big Tech' Always Oddly Omit 'Big Telecom'?

from the half-the-battle dept

Over the last year, giants like Amazon, Facebook, Google, and Apple have all faced growing calls for greater regulatory oversight and antitrust enforcement, something that isn't particularly surprising. After all, experts have noted for decades that US antitrust enforcement has grown toothless and frail, and our definitions of monopoly power need updating in the Amazon era. Facebook's repeated face plants on privacy (and basic transparency and integrity) have only added fuel to the fire amidst calls to regulate "big tech."

But while Silicon Valley giants now face an endless cavalcade of outrage in DC, the telecom sector is suddenly seeing no scrutiny whatsoever. Whether it's the speed at which the problematic T-Mobile merger is being shoveled through the DOJ and FCC, or the blind eye being turned to major telecom privacy scandals (like location data), telecom lobbyists have been on a successful tear convincing well-heeled DC lawmakers to ignore the massive, obvious monopoly, privacy, and competition issues inherent in telecom to focus exclusively on the problems in "big tech."

This crusade against "big tech" has seen no shortage of advocates who've historically been absent on glaring and painful monopoly and consumer protection issues in other sectors. Like Marsha Blackburn, who has rubber stamped every fleeting monopolistic and privacy-violating whim AT&T executives have ever had, yet is now branding herself as some sort of consumer advocacy and privacy expert as she rails against "big tech."

Another major voice in the "battle to fix 'big tech'" has been Josh Hawley, who has been endlessly vocal about the issues with big tech, but just as absent as Blackburn when it comes to criticizing the same exact problems plaguing the telecom sector. Last week, Hawley unveiled a plan to fix the FTC (pdf) -- an agency, he correctly notes, that has been largely feckless when it comes to reining in the bad behavior of lumbering giants like Facebook:

"As it stands today, the FTC lacks teeth. Its jurisdiction is divided. It wastes time in turf wars with the Department of Justice (DOJ) while failing to confront the increasing concentration in our economy, in the tech sector most obviously. And it is woefully unaccountable. The agency as presently constituted is in no shape to ensure competition in today’s markets, let alone tomorrow’s."

He's certainly not wrong on that. If anything, he undersells the problem. The FTC has somewhere around 8% of the staff focused on resolving privacy issues as its counterpart in the UK, despite the UK having a fifth as many people as the US. The FTC is also a cesspool of revolving door conflicts, with most employees having either recently left the companies they're supposed to hold accountable, or simply biding their time until they can go lobby for those same companies. And, like the FCC, its partisan majority makeup results in whiplash as the parties jerk the reins of policy from one side of the spectrum to the other.

This is not some inadvertent error. An understaffed, underpowered FTC is the intentional lobbying byproduct of giant U.S. companies that don't find taxpayer or regulatory accountability particularly exciting. It's why even when the FTC finally acts on an issue, its solutions (as we saw with Equifax or Facebook) are pathetic messes that in no way deter future bad behavior (and in some ways only encourage the problems to repeat themselves). It's a feature, not a bug.

Hawley's cure for this involves essentially gutting the agency as it stands, then rolling it into the DOJ to provide "clear and direct oversight." His effort would also eliminate the FTC’s five-member structure, which, like the FCC, is based on a partisan 3-2 split depending which party holds the Presidency. Instead, the FTC boss would fall under the authority of a Senate-confirmed single director serving a five-year term.

There's stuff under Hawley's plan that's certainly common sense -- stricter controls on ethics, antitrust enforcement being centralized, etc. The problem is several fold. For one, do we really want ex-Verizon lawyer Bill Barr in charge of the FTC? Couldn't giving that kind of leverage to Barr only aid his relentless effort to break encryption and put backdoors into, well, everything? Meanwhile, the partisan FTC strife Hawley claims to be eliminating would probably just jump over to the confirmation hearing process, and the numerous hearings and laws you'd likely need to make his plan a reality.

The other big problem: a lot of these regulatory "modernization" plans often wind up being little more than exercises in butchery dressed up as reform once they actually materialize in the wild.

Case in point: with its recent net neutrality repeal, the FCC recently neutered its authority over telecom providers at telecom lobbyist behest amidst claims it would create "internet freedom" and spur investment (neither happened). But contrary to public wisdom, the repeal didn't just kill net neutrality. It effectively gutted the FCC, shoveling much of its responsibilities over to the FTC -- an agency that lacks the authority or resources to actually police the telecom sector. This was, in case you're a little slow, the entire reason the telecom lobby pushed for it. It wanted consumer protection and accountability to fall into a deep, dark chasm. It's working, and a lot of blatant efforts by telecom to rip users off or violate their privacy have gone utterly unpunished amidst crickets from "big tech" reformers.

Gutting already shaky oversight is not really "reform," and I'm curious what happens to telecom oversight if we destroy the existing FTC and hand management of the telecom sector over to Bill Barr. Former Verizon lawyers would be running both the FCC and FTC, and both consumer protection and antitrust enforcement would fall to a duo who've shown less than zero interest in reining in AT&T, Verizon and Comcast, or the trio's thirty year track record of aggressively anti-consumer, anti-innovation, and anti-competitive behavior. Behavior that was being bone-grafted to the American institution while Google and Facebook were still just twinkles in youngsters' eyes.

One might feel better about this if the perils of telecom monopolies weren't so utterly absent from Hawley's rhetoric. When you dig through his plan or his lengthy treatises on reform over at his website or in speeches, big telecom is almost never mentioned -- despite the sector engaging in many of the same, or worse behaviors. Much like Blackburn, Hawley appears to have placed the entire onus for the modern internet's ills securely on the back of big tech, while giving telecom a free pass. Why do you think that is, exactly?

There are certainly plenty of reasons to criticize big tech giants like Facebook, whose face plants on privacy are now the stuff of legend. But big telecom is every bit as bad as big tech. As government-pampered giants that also enjoy unaccountable monopolies over internet access itself, in some ways the sector is arguably worse.

AT&T's massive ad ambitions rival anything Silicon Valley ever concocted, fusing television, mobile, location, and countless other data sources into what The Verge recently called an "ad tracking nightmare hellworld." From Verizon getting busted for covertly modifying user packets to track you around the internet to recent location data scandals, the sector's just as terrible on privacy as anything Silicon Valley has to offer. This is before you even mention that they're enthusiastically bone-grafted to the NSA.

As companies like Comcast NBC Universal and AT&T Time Warner increasingly push into the ad tech space, they've been eagerly pushing a crackdown on the big tech giants whose market share they hope to erode. Any quest to fix the US' broken antitrust and consumer protection enforcement has to take a bigger picture view that identifies both big tech and big telecom monopolies as part of the same giant problem.

Politicians that fixate exclusively on the former are either being painfully but genuinely myopic, or they're exhibiting a byproduct of relentless lobbying by the telecom sector, which has been pushing for this special brand of asymmetrical "reform" for several years now.

Filed Under: antitrust, big tech, competition, doj, ftc, internet, josh hawley, law enforcement, privacy, telecom

AOC Supports Full Repeal Of FOSTA

from the good-for-her dept

Late last year, a bill was introduced to study the impact of FOSTA. This is important, as all of the evidence to date suggests that it has failed by every possible measure. There is no indication that it has helped to decrease sex trafficking -- in fact the indications are that it has enabled more sex trafficking. Indeed, law enforcement has directly admitted that the law has actually made it more difficult to track down traffickers. And, of course, there's tremendous evidence that it has had a real human cost in putting (non-trafficked) sex workers at significant risk.

As more in Congress realize this, it's been good to see some calling for a careful study into the impact. And now Rep. Alexandria Ocasio-Cortez has been the first (as far as I can tell) to come right out and say the law should be totally repealed, specifically calling out the harm that it has done to sex workers. It's great to see politicians realizing that all the lame rhetoric that was pushed out in favor of the law was bullshit.

Of course, because AOC is such a polarizing figure in these insanely partisan times, the usual crew of AOC haters have immediately started spewing absolute idiocy online claiming -- falsely -- that she supports sex trafficking. It was this kind of bogus rhetoric that helped get this damaging law passed in the first place. But, since Republicans love to try to mock everything AOC says, we get silly statements like this from Rep. Pete Olson saying that she wants to "re-open the floodgates of human trafficking" and pointing to "64 human traffickers busted" in Fort Bend (in his district). While it is true that local officials arrested 64 people in a sting operation, and told the press it was for trafficking, few details have been provided. In most similar announcements, later research often found that the operations had little to do with trafficking, and were just standard sex work. Either way, if FOSTA was supposed to stop such "trafficking," it seems like Olson is flat out admitting that it didn't work here.

And, of course, Senator Josh Hawley -- who you may recall, has decided that he alone should make all UI decisions for the internet -- has ridiculously claimed that this is AOC "supporting big tech and sex trafficking" when it's literally neither of those things. The idea that partisan idiots are jumping on this just because of who is suggesting it is perhaps not surprising, but still disappointing.

Even if you disagree with AOC on other things, it's a good thing that she recognizes what a failure FOSTA has been and how it's put lives in jeopardy. Repealing FOSTA is the right move and kudos to AOC for being the first Congressional Rep to come out and advocate for it.

Filed Under: alexandria ocasio-cortez, aoc, fosta, intermediary liability, josh hawley, pete olson, repeal, section 230, sex trafficking

When We Fail To Understand Privacy As A Set Of Trade-Offs, Everyone's 'Solutions' Are Unhelpful

from the not-going-to-fix-anything dept

Last week, Karl wrote up a fascinating post about a NY Times effort to use a dataset that a whistleblower at a data broker firm gave them to track the whereabouts of President Trump, by spotting the location data of what appears to be a Secret Service agent detailed to the President. Karl included two quotes from two different Senators in the article, and I found both of them amusing, as they both basically took the story and responded with their own "hobby horse" solution to the problem, even though neither one of them seemed to accurately understand or describe it:

"This is terrifying,” said Senator Josh Hawley, Republican of Missouri, who has called for the federal government take a tougher stance with tech companies. “It is terrifying not just because of the major national security implications, what Beijing could get ahold of. But it also raises personal privacy concerns for individuals and families. These companies are tracking our kids."

“Tech companies are profiting by spying on Americans — trampling on the right to privacy and risking our national security,” Senator Elizabeth Warren, a Democrat running for president, told us. “They are throwing around their power to undermine our democracy with zero consequences. This report is another alarming case for why we need to break up big tech, adopt serious privacy regulations and hold top executives of these companies personally responsible.”

The Hawley quote is classic Hawley, because he immediately jumps to the claim that these companies are tracking our "kids." Many of his attempts at regulating big tech has resulted in "but think of the children" arguments. Even when he was directly asked to respond to a Techdirt article, he ignored the question and went on a rant about how much damage tech is doing to the children. Except, this story is entirely about location data on phones. So, um, maybe don't give your kid a phone and then they're not directly tracking your kid anymore? Yes, obviously it's more complicated than that, and with the kind of data at issue you could probably identify adults who were with certain kids and track them. So there are legit concerns as is clear from the initial report. But, it's kind of a weird thing to focus on "the children" when the companies themselves focusing on location data -- as bad as they are -- are not actually tracking kids unless you, the parent, give them a phone with location sharing turned on.

Hawley sometimes likes to pretend he's against big government and especially against government taking over for parents. And, yet, here's a simple way that parents can take control in this situation: don't give your kid a phone with location info turned on.

The Warren quote is a similar thing. She immediately latches onto her idea that the correct answer is to break up big tech. But... while the NY Times does not say exactly where it got the data from to make this report, they do explicitly say that this data is not from the big internet companies Warren has suggested breaking up (i.e., Google, Facebook, Amazon, or Apple). Those companies aren't in the business of selling or sharing your location data with third parties. Indeed, with Google and Apple, they actually tell you what data your phone is sharing and allow you to block services from accessing that data. The data appears to be coming from a smaller data broker firm who got it from elsewhere (most likely a sketchy app provider selling your location data). Yet Warren uses it as evidence that internet companies need to be broken up.

Even if the data did come from such a company, it's difficult to see how breaking them up would solve any of the issues laid out in the report. Indeed, by cutting off ancillary and complementary lines of business, it's only likely to make such data collection efforts more central to a business, and push companies to rely even more heavily on such activity.

So, yes, obviously the NY Times' reporting here raises all sorts of alarm bells and concerns -- and it's nice to see some Senators concerned about all of this as well. Except it would have been a hell of a lot nicer if they were actually concerned about what the report said, and didn't use it as an opportunity to spew nonsense, make a non-existent connection to their own personal stump speech talking points, and ignore what's actually happening. But, hey, I guess that's asking too much of our elected officials these days.

Of course, all of this is just a symptom of a larger issue. As I've been talking about for years, we still don't fully understand what "privacy" means. Everyone seems to have a different conception of what privacy means, and that makes it quite difficult to talk about it -- but even more difficult to regulate it. This is why so many attempts at regulating privacy have insane unintended consequences. The quotes from Hawley and Warren just serve to illustrate all that. Neither are offering actual solutions to the issue of data brokers selling granular location data that can easily be de-anonymized. They're just pushing the same plan they've pushed in the past that vaguely speaks of "tech bad."

Filed Under: elizabeth warren, josh hawley, privacy, trade-offs

The Good And The Bad Of The ACCESS Act To Force Open APIs On Big Social Media

from the one-step-forward,-two-steps-back dept

As people here will probably know, I am a huge proponent of a "protocols, not platforms" approach to handling questions around big tech and competition (as well as privacy, content moderation and more). I even wrote a pretty long paper about it for the Knight 1st Amendment Institute at Columbia University entitled Protocols, Not Platforms: A Technological Approach to Free Speech. So, I was definitely curious to see what Senators Warner, Hawley and Blumenthal had cooked up with their new ACCESS Act [Augmenting Compatibility and Competition by Enabling Service Switching Act] since it's being pitched as pressuring big social media companies to open up their platforms to competitors.

I've been a pretty big critic of past proposals from Senator Warner, Senator Blumenthal and especially Senator Hawley, but given that the topic of this particular bill sounded like it might be in line with my suggestions about creating competition through interoperable protocols and open APIs, I thought that maybe, just maybe, these Senators might have gotten it right.

Unfortunately, that does not look to be the case. To be fair, this bill is not nearly as bad as previous efforts by (especially) Hawley and Blumenthal to regulate internet companies. Indeed, I'd almost be convinced that, unlike some of their previous bills, this one actually is legitimately trying to solve the issues associated with some internet platforms becoming too dominant, and creating a path towards more actual competition. Also, this does, at the very least, take a different approach compared to the usual tools of governments (fines, breakups, etc) and recognizes the value of interoperability and actually enabling competition.

The problem, though, is that this bill won't actually accomplish what it hopes to do so. Because -- and this is a hallmark of Hawley's various tech bills -- it seeks to regulate a dynamic and rapidly evolving market as if it's stagnant and set in stone with little likelihood of ever changing. It also takes a very heavy handed approach, and reminds me, yet again, that Hawley seems to think he should be appointed the product manager for the internet. Also, there are much, much easier ways to accomplish what this bill seeks to accomplish -- by fixing other laws, rather than by piling on new rules.

The crux of this bill is that very large internet platforms (over 100 million monthly active US-based users, which would limit it to a very small number of platforms, perhaps just Facebook, YouTube, WhatsApp, Instagram, Twitter, LinkedIn, Snapchat and Pinterest) would have to offer up an open API and data portability for others, such as smaller competitors, to access the data on the platform.

A large communications platform provider shall, for each large communications platform it operates, maintain a set of transparent, third-party-accessible interfaces (including application programming interfaces) to initiate the secure transfer of user data to a user, or to a competing communications provider acting at the direction of a user, in a structured, commonly used, and machine-readable format.

One other interesting element here is that it would set up a new class of middlemen, that users could designate to manage their privacy. I envisioned something like this both in my Columbia paper and in one of my fiction stories in the Working Futures anthology, but mandating it by law just seems weird and nonsensical. This is the type of thing that you shouldn't need to mandate if everything else is designed properly.

The other crazy thing about this bill is that it seems to exist in a world where it doesn't recognize how this setup conflicts with all of the other complaints -- often put forth by the likes of Senators Warner, Hawley and Blumenthal -- that these companies don't do enough to protect user privacy. Yes, it hand waves at the privacy issue, by basically saying "make all your data available via an API... but make sure you keep it private." And that's about it. How to accomplish this without it creating a massive privacy nightmare is left unstated. Honestly, the description of the API they're asking for sounds an awful lot like the setup Facebook used to have, which was abused by Cambridge Analytica, leading to Facebook getting hit with a $5 billion fine. And now these Senators -- who I'm sure supported the FTC's fine (or even perhaps wanted more) -- are basically demanding that Facebook recreate the same open access plan?

Among the many bizarre and unworkable aspects of this bill is that it requires NIST -- the National Institute of Standards and Technology -- to come up with "standards" to make online messaging, social networking, and multimedia sharing standardized and "interoperable" within 180 days. This just goes to show that Warner, Hawley and Blumenthal (1) have never, ever been involved in the process of setting a technical standard, and (2) have no clue how many different variations there are on those three categories, which would make them fairly difficult to standardize (which is one of the many reasons attempts in the past to standardize each of those categories has failed miserably).

Finally, it's unclear why this particular approach is needed in the first place. As we've discussed, the big internet companies launched the Data Transfer Project last year that already accomplishes the core aspects that this bill wants to enable, but in a more privacy-protective manner, and that's been improving a lot.

So, yes, I actually appreciate that this is a slightly smarter approach to trying to create more interoperability -- which I do think is important -- but it goes about it in perhaps the least useful way possible. There are a whole bunch of better approaches, many of which we've discussed before:

• Have Congress clarify that APIs are not covered by copyright (before the Supreme Court even has a chance to weigh in). Overturn the CAFC's awful decision and you'll get more APIs and more interoperability. This is a low-hanging fruit type of option.
• Get rid of Section 1201 (the anti-circumvention or DRM clause) of the DMCA. This would allow for much more reverse engineering to get access to platforms, allowing more competitors to create their own interoperable systems.
• Fix the CFAA such to overturn the Power ruling that said that a third party company couldn't scrape Facebook's data even with permission from the user.
• Get rid of software patents, which can and are used to block interoperability and similar features within services.

Do those things and you'll get your interoperability, transportabiliy, and competition without having to "mandate" it.

Filed Under: access act, apis, competition, interoperability, josh hawley, mark warner, platforms, privacy, protocols, richard blumenthal, social media, transportability
Companies: facebook, google, linkedin, twitter, youtube

Senator Hawley Responds To Techdirt With A Bunch Of Nonsense And Lies About His Own Bill That He Doesn't Seem To Understand

from the you-did-the-what-for-the-who-now? dept

Hoo boy. We've criticized a bunch of Senator Josh Hawley's nonsense over the past few months. After all, he's the elite cosmopolitan "get big government out of business" Senator who is railing against elite cosmopolitans, while demanding that government get deeply involved in regulating companies. Well, not all companies. Just tech companies. It's almost as if Hawley is deliberately picking on companies that he thinks don't like his insane brand of politics. Anyway, while Hawley has introduced a slew of nonsensical bills targeting internet companies, the most laughable was the one that literally lays out what features certain websites can and cannot use. As we wrote in our post about it, Hawley seems to want to appoint himself the product manager of the internet.

Saagar Enjeti, a reporter for The Hill, recently sat down with Hawley, and Enjeti has posted some highlights from the interview. It's kind of scary that this guy is a sitting US Senator, as almost everything he talks about, he demonstrates an astounding, almost comical, level of ignorance or a clearly superficial understanding. But, hilariously, Enjeti actually asks him specifically to respond to my criticism that he's trying to appoint himself the product manager for the internet. Hawley's response is... not good.

Let's write out the transcript here, because it is unbelievable. It's so unbelievable that I don't even think Hawley understands what his own bill says, and I'm almost wondering if he's commenting about a different bill, introduced in the other part of Congress.

Enjeti: So I also want to talk about your SMART Act. It's probably the most criticized foray of yours within the Big Tech debate. Among other things, you've proposed banning infinite scroll, autoplay, limiting users to 30 minutes a day. A Techdirt columnist said you want to appoint yourself "product manager of the internet." What would your counter to that be?

Hawley: My counter is that parents ought to be in control of raising their children, not big tech. So parents ought to have tools and options and support. So take the thing limiting 30 minutes for apps usage. I mean parents can change that. It's a default setting. But it gives control to parents to say, "look, these tech companies whose entire business model is focused on getting my kids addicted and then stealing, essentially, their information, and then turning around and selling it, it's time to stop that."

It's time to give parents control. To say, look, if I'm comfortable with my kids online, fine, that's the parents' choice, and the kids' choice. But it shouldn't be big tech's choice. Big tech shouldn't be raising our children. Infinite scroll and autoplay. These are technologies, quote unquote, that Big Tech has developed, in concert with psychologists, to try to get us -- and, again, especially kids and teenagers -- addicted to their platforms. Why should they be able to do that without scrutiny? Why shouldn't we give parents the ability to say "no"? It ought to be a choice, but the choice and the power of the choice ought to be in the hands of the family. Not in the hands of some Google executive.

First of all, none of this makes any sense at all. Parents already have that control. Not tech companies. Parents can block their kids from using certain services or apps or can use any number of the fairly long list of third party services to help control how much their kids use these services or their devices. Isn't that the free market at work, Senator Hawley? Second, Hawley's bill doesn't actually do anything that he suggests above.

The word "parent" doesn't even appear in the bill at all. Regarding the 30 minute limit, the bill says nothing about parents, but does say that any social media platform has to default to a limit of 30 minutes per day for all users, and while it does allow those users to alter the limit, it resets every month, and Hawley's bill requires the services to continue to nag users. It doesn't say that the ability to change the limit should be for parents changing things for their kids. Indeed, how hard would it be for kids to change the settings?

The same is true of the ban on autoplay and infinite scroll. Those are listed as "prohibited practices" -- not "tools for parents to help their kids." Yes, it does say that services can offer a way for users to "opt-in" to both, but says this can be accomplished by "pushing a button." Does Senator Hawley think that kids can't push buttons?

Also, we won't even get into how wrong he is to argue these companies are either "stealing their information" or "turning around and selling it" (though, Senator Hawley, if they're selling it, can you tell us where to buy it? Because it's not actually happening. But, damn, you could really prove your point if you went out and bought that "stolen" information that you insist is for sale), but it seems worth pointing out that Hawley exempts autoplay ads from his autoplay ban. If he were really concerned about the privacy implications and the data implications of these services, then, um, wouldn't that include ads? But, nope, Hawley's all happy to let these companies continue autoplay if it's for making money.

And, while I'd normally say this goes without saying, it appears to need saying based on Hawley's own confused comments: how the hell is a bill that has the government "make choices" for you an example of "giving more choices" to parents?

Honestly, so much of Hawley's description of his own bill actually sounds like he's talking about an entirely different (but still dumb) bill, the one that was introduced by Rep. Goasar in the House, and which would require companies to offer content moderation tools for end users. That one, you could credibly argue, is about putting more control in the hands of end users (parents or not...).

But, really, all we're left with here is a Senator who doesn't seem to understand how technology works, what his own bill says or does, what it means for "big government" to meddle in private businesses, or, really, anything. How is this guy in a position of power?

Filed Under: big tech, choice, infinite scroll, josh hawley, parents, product manager, think of the children
Companies: amazon, facebook, google

Josh Hawley Continues To Pretend That Silicon Valley Isn't Innovative

from the nanny-state dept

Josh Hawley pretends to be against big government. He pretends to be against the "nanny state." But since the second he got into power, nearly everything he's proposed has been about increasing government control over industry. But just one industry. The internet/tech industry that he has personally decided doesn't work the way he thinks it should. Beyond trying to get rid of Section 230, Hawley has proposed a bill that literally makes design choices for internet companies. Earlier this year, he introduced another bill that tries to design features for online video sites. He's made it clear that he doesn't like internet site because his constituents like them too much, which seems odd.

And, just a week after the Wall Street Journal rightly mocked this approach, and explained that his constant refrain that there is no innovation coming out of Silicon Valley anymore is laughable... the very same Wall Street Journal has allowed Hawley to simply repeat his nonsensical claim that there is no innovation coming out of Silicon Valley (likely behind a paywall):

Men landed on the moon 50 years ago, a tremendous feat of American creativity, courage and, not least, technology. The tech discoveries made in the space race powered innovation for decades. But I wonder, 50 years on, what the tech industry is giving America today.

Nice poetic start... by essentially announcing to the world that you're totally ignorant of what's happening in tech and innovation today. That's one strategy.

Innovation in physics—the world of real things—has slowed, and America is losing its manufacturing process edge in key industries. Meanwhile, the landscapes of our cities and towns look about the same as they did half a century ago.

[Citation needed]. It's unclear how you decide that "innovation in physics... has slowed," but one simple point on that is that the easier challenges have been solved, and people are working on much harder stuff. Similarly, it's unclear how you determine that we've "lost our manufacturing process edge." According to whom? And what? The US is still a massive manufacturing country, neck and neck with China. It is true that fewer jobs are in manufacturing, but much of that is because of process innovations. And I'm not sure what the landscapes of our cities and towns have to do with anything at all.

There’s no question that Silicon Valley and the three or four corporate behemoths that dominate it have made it easier to share information. But the modern smartphone, the search engine and the digital social network were invented more than a decade ago. What passes for innovation by Big Tech today isn’t fundamentally new products or new services, but ever more sophisticated exploitation of people.

It's totally fair to note that innovation in search engines, smartphones and social networks has slowed down, but to argue that this is the end of innovation and that the only thing Silicon Valley is working on today is "sophisticated exploitation of people" is laughably ignorant. First of all, the smartphone is really only about a dozen years old. That's still a pretty damn recent innovation. Successful tablets are even younger. That's pretty recent.

And there's lots of other amazing innovation still happening -- in fact, much of it driven by the revenue successes of those older innovations that Hawley is now mocking: self-driving cars, space exploration, distributed ledger technology, artificial intelligence, health technologies, robotics. Hell, there are even a whole bunch of flying car companies out here these days. You literally have to willfully not look to argue that all anyone is doing out here is working on "exploitation of people."

To monetize older innovations, the dominant platforms employ behavioral scientists to develop interface designs that keep users online as much as possible. Big Tech calls it “engagement.” Another word would be addiction.

There is some fair criticism hidden within the sneering. It is reasonable to wonder if this is the best use of the time of some people who work on things like engagement (which, it should be noted, is fundamentally different from addiction). But if that work is actually about providing a better product that people find more useful, that's a good thing, no? I admit that there may be a fine line between building a better product and using tricks to keep people engaged when they shouldn't be. But it's still more of a line than Hawley is willing to admit here.

By getting their users to spend more time on their platforms, the social-media giants turn the customer into a data source to be sucked dry. Here’s how it works: The more attention users give the platform, the more personal information the platform extracts from them, recording every click, view and preference. Big Tech then converts this information into advertisements, all targeted with increasing precision—which produces even more advertising dollars for Big Tech.

Yes, that's the narrative that some people like to push. But here's the thing: there's no "sucking" anyone "dry." Data is not a finite resource. You don't go dry of data. And, yes, if these systems actually work in giving people more of what they want, then isn't that the market at work? Isn't that what people like Hawley always pretended they supported? And if, as I suspect, all this targeting doesn't work all that well in most use cases, then these efforts will flop and people will learn and move elsewhere.

What “innovation” remains in this space is innovation to keep the treadmill running, longer and faster, drawing more data from users to bombard us with more ads for more stuff.

Again, this ignores nearly every other bit of innovation happening in the Valley today. I hate to spoil this for Hawley -- who really seems to be itching for the job of "Product Manager, all of Silicon Valley" -- but the "engagement" jobs are not the ones that engineers and techies are excited about these days. It's all the stuff in the list above. The exciting jobs are in new areas, built on "moonshots" and exciting new technologies.

But here’s the problem. As we spend more time on that digital treadmill, our real-world relationships atrophy, sometimes to disastrous effect. Teen suicide is up. Twenty-two percent of millennials report that they have no friends. More than a few researchers have noticed a connection.

Everyone's got studies. Just recently we pointed to a pretty comprehensive and rigorous study out of Oxford that found almost no impact of social media on "adolescent life satisfaction." While there may be a clear correlation between social media use and depression/suicide, to say there's a causal relationship seems based on little more than speculation. The Oxford study actually tried to dig in and go beyond the correlation, and found that "social media use is not, in and of itself, a strong predictor of life satisfaction across the adolescent population." That's not to say it doesn't have any impact -- it clearly does. But, in many cases, social media use actually increased "life satisfaction," by giving people others they could talk to, often about topics they might not be able to discuss with people who are in the same general location. Focusing narrowly on assumed causation, as Hawley does, likely would mean taking away all of the benefits of social media, and the ability to connect with others in an attempt to weed out what negative effects there are as well.

At the same time, the dominant tech companies’ market concentration is stifling competition that might bring truly new and rewarding innovation. Want to raise money for a venture to challenge Facebook or Google? Good luck. The best pitch for a startup is a pitch for getting purchased by one of the tech giants a few years in. If they won’t buy you, they’ll just copy you.

If this were true, we'd likely see a decline in venture investing. But we don't. It keeps going up and up. And there are lots of entrepreneurs who want to challenge Facebook and Google. Most entrepreneurs talk about wanting to be "the next" Facebook or Google, just like those before them wanted to be the next Microsoft or Yahoo. It's kind of a thing that Silicon Valley specializes in. Indeed, I was just talking to a venture capitalist recently who is actively looking for startups to challenge Facebook and Google, because he thought those companies have gotten so big and so cumbersome that they're ripe for disruption.

Americans shouldn’t settle for this stagnation.

What stagnation?

It’s time we demanded more of Big Tech than it demands of us. That's why I’ve proposed banning the “dark patterns” that feed tech addiction. I’ve introduced legislation to provide consumers a legally enforceable right to browse the internet privately, without data tracking. I’ve advocated stepping up privacy safeguards for children and requiring tech companies to moderate content without political bias as a condition of civil immunity. And I’ve advocated more competition to spur real innovation for real people.

These are all fascinating, if misleading, ways to spin his legislative solutions, that amount to little more than kneecapping how tons of internet services work.

It should be no surprise that the tech companies have fiercely resisted these proposals at every turn, often with hysterical claims about breaking the internet or putting the American economy at a disadvantage to China—as if “autoplay” or “infinite scroll” were powering American productivity. If those are the weapons we’ll marshal in an economic battle with Chinese high-tech manufacturing, the war is already lost.

This is an odd one to point out. No one thinks that prohibiting auto-scroll will lead to China taking advantage. But people do worry about taking away Section 230, or other odd restrictions on every internet company -- including startup challengers to the big guys -- opening up the space for Chinese startups (who are already taking market share: see TikTok). But, really, the autoscroll thing is so odd to highlight because that's one of the most egregious examples of Hawley's nanny state tendencies. Literally telling companies how to design their products.

To the masters of Big Tech, I say: Raise your sights. If you want to be leaders for this country in this century, earn it. Build tools that enrich lives, strengthen society, create good-paying jobs, and improve productive capacity.

Again, if Hawley ever actually bothered to look around, he'd see that all of that is absolutely happening. But Hawley won't do that.

There was a time when innovation meant something grand and technology meant something hopeful, when we dreamed of going to the stars and beyond, of curing diseases and creating new ways to travel and make things. Those are the dreams that fuel the American future. Those are the dreams we need to dream again.

This is bizarre. Literally the hottest companies in Silicon Valley right now are all ones around "going to the stars and beyond, of curing diseases and creating new ways to travel and make things." Hawley is either deliberately lying about Silicon Valley or so ignorant as to be in no position to comment on it. The WSJ should have stuck with last week's op-ed, and rejected this nonsense one.

Filed Under: big government, innovation, josh hawley, nanny state, regulations, silicon valley

WSJ Rightly Attacks Senator Josh Hawley's 'Nannyish' Laws Regarding The Internet

from the good-to-see dept

Just days after publishing yet more anti-internet nonsense, the Wall Street Journal, at least, allowed Andy Kessler to publish an excellent opinion piece calling our Senator Josh Hawley's ridiculous "big government" approach to regulating internet companies.

Mr. Hawley’s new bill has all the worst instincts of the regulatory state—a disappointing achievement coming from a Republican. It would remove the autoplay feature from YouTube, end infinite scrolling on Twitter and Facebook feeds, limit scrolling time to three-minute sessions, set default limits on the use of platforms to 30 minutes a day, and outlaw Snapchat streaks (rewards for consecutive days of contact with friends) and most “gamification” (badges, rewards) for any online service. These diktats are the opposite of market freedom.

The bill’s final kicker is a proposed triennial Federal Trade Commission report to Congress describing how internet companies “interfere with free choices of individuals” by “exploiting human psychology and brain physiology.” In other words, Mr. Hawley wants to restrict freedom because it interferes with free choice. Or something like that. Cut to a video of Orwell rolling over in his grave (though it won’t autoplay). OK, to be fair, Skopos Labs gives the bill a measly 3% chance of being enacted. But that doesn’t make it any less . . . cuckoo.

Kessler's piece also calls out Hawley's laughable claim that there is no innovation at all in social media.

This antitech inclination hasn’t always defined Mr. Hawley’s persona. As attorney general he said, “American workers and American entrepreneurs can compete with anybody, anywhere if our government will stop making America a cost-prohibitive place to do business.” Hear, hear. When he won his Senate seat last year he ran mostly as a conventional conservative.

But even then he already had his enemies marked. His first Senate speech lamented the “cold and judgmental world of social media,” and things kind of went downhill from there.

Hawley, of course, has been grandstanding a lot lately about how the "cosmopolitan elite" are the problem. He conveniently leaves out the fact that he attended Stanford and Yale Law School, clerked for the Supreme Court, worked at a massive "cosmopolitan" law firm (based in DC and London), Hogan Lovells, and then became Attorney General for Missouri before becoming Senator. Hawley is about as "cosmopolitan" a Senator as you can find. But apparently, in grandstanding to what he seems to believe is a very, very gullible base, he wants to convince them that he's standing up to the "elites" and that the only innovation that matters is innovation that comes from "the Heartland" or some such nonsense. As Kessler notes, cynically, Hawley's act is all for show:

Whether that worry is real or not doesn’t matter; condemning tech is a form of pretend populism. Mr. Hawley is taking an Elizabeth Warren-esque “I have a plan for that” approach, which is more about grabbing headlines than actually passing laws.

Yet the claim that big tech companies don’t deliver innovation is false. We can stream TV shows on subways, enjoy same-day package delivery, have a lady in our phones help us to avoid traffic, sort photos automatically by date, location and faces, and get instant answers to any question in our kitchens from something that looks like a hockey puck. Yeah, but what have you done for me lately?

Kessler notes that Hawley's plans would completely destroy innovation online.

Mr. Hawley’s style of heavy-handed regulation is what killed Detroit, distracted phone companies, inflated health-care costs, and wrecked education. Don’t let it kneecap the internet. It won’t be long before the senator announces, “If you like your social media, you can keep your social media.”

Given the willingness of the WSJ to publish anti-internet nonsense of late, it's nice to see Kessler able to get at least something sensible through.

Filed Under: andy kessler, big government, ftc, josh hawley, regulations, republicans

Josh Hawley Wants To Appoint Himself Product Manager For The Internet

from the hawley-knows-best dept

Say what you want about Senator Josh Hawley -- and we've said a lot -- but you do have to give him credit for actually proposing bills to respond to all of the problems he sees with internet companies these days. Of course, he sees their very existence as one of the problems, so the bills seem mostly nonsensical. His latest -- the Social Media Addiction Reduction Technology Act (yeah, yeah, the SMART Act) -- is only marginally less crazy than his last bill to strip internet companies of Section 230 protections, unless they agree to allow Nazis to speak.

It's... weird. It basically seems to be Congress (via Hawley) appointing itself as the new product manager for all internet services. It's taking what is a potentially reasonable concern that certain activities on various internet platforms may lead to addictive behaviors and then assuming that Congress must ban them, outright -- as well as take proactive steps to limit access to much of the internet. I'm assuming that noted Constitutional lawyer Josh Hawley will next propose a bill banning alcohol, cigarettes, TV binging, professional sports, books, and anything else engrossing in the future. Again, there are legitimate concerns about how the internet impacts people, but we're still in the very early days of understanding (1) what those issues are and how they're dealt with and (2) how society can and should respond to those things. And yet, this bill acts as if it's well established that a few very specific technology features are de facto evil and must be banned. Among them:

1. Infinite scroll
2. A lack of natural stopping points
3. Autoplay music and video
4. Badges that reward certain behavior (i.e., gamification)

First off, I probably agree with many of you in thinking that much of the above list is fucking annoying. I'm annoyed by infinite scroll. It's why we don't have it on Techdirt, even though tons of other sites do. But, how in the world does it make sense for Congress to step in and literally make design choices for the entire internet?

Also, autoplay ads are crazy annoy... wait, what's this?

AUTOPLAY.—The use of a process that automatically plays music or videos (other than advertisements) without an express, separate prompt by the user (such as pushing a button or clicking an icon)

Emphasis very much added. Got that? Autoplay advertisements are exempted. This is basically entirely targeted at YouTube and the fact that when one video finishes, another will start playing automatically. I do find that practice marginally annoying, but there's a giant switch at the top of the page that lets you turn it off, and once you turn it off once, it stays off, so, uh...? But, really, the exempting of advertising is quite amazing. Apparently Josh Hawley thinks that internet companies are bad for trying to addict you, but advertisers? Oh, no. They're pure as the driven snow...

If I'm reading this correctly, it could ban Techdirt's existing commenting feature in which we put badges on comments that have been voted "funny" or "insightful" by the community. Because that's evil. How dare we incentivize our commenters to be funny or insightful! An outrage! Here's the language in the bill:

BADGES AND OTHER AWARDS LINKED TO ENGAGEMENT WITH THE PLATFORM.—Providing a user with an award for engaging with the social media platform (such as a badge or other recognition of a user’s level of engagement with the platform) if such award does not substantially increase access to new or additional services, content, or functionality.

That is listed under "Prohibited Practices," though it's possible we might skate by, as we may not qualify as a "social media service" under the bill (it defines social media services as sites that "primarily serve as a medium for users to interact with content generated by other third-party users"). I'd argue that's not our "primary" business right now, but it's at least a bit fuzzy -- especially as we're, at this very moment, thinking about ways to improve our commenting features, and if this became law, we'd have to be very concerned that at some point we'd accidentally cross the nebulous border into a realm in which our "primary" business involved hosting user comments. Given that, it would certainly create a massive chilling effect on the features we're already working on implementing for you guys.

Of course, that's only if this bill had half a chance in hell of becoming law and not being tossed out as unconstitutional.

The bill also requires any "social media company" to add a bunch of features. Again, some of these features are probably good ideas, just not good ideas that should be required by law. Among the mandated features: a tool that users can use to set time limits on the platform, an opt-out rule that, by default, limits the use of any services to 30 minutes per day, and a regular counter of how much time you've spent on the site. So, if we were deemed to be "primarily" in the social media business, and you're reading Techdirt for more than 30 minutes, sorry folks, but I'll need to cut you off (and re-set the limit on the first of every month, even if you opt out). Yes, that's right -- even if people opt out of the 30 minute limit, this bill would require it be turned back on, on the 1st of every month. So paternalistic. And, apparently, I'll magically have to build such tools into my site.

Remember, of course, that Josh Hawley's major claim to fame was that he was the lawyer that represented Hobby Lobby in allowing it to ignore federal laws that it felt violated the religious sensibilities of its owners. I wonder, if we start a religion that worships the infinite scroll and gamification badges, will Hawley let us have an exemption from this law?

Believe it or not, there's even more in the bill, including requiring websites to have a "neutral presentation," banning "pre-selected" options, and having the FTC report to Congress about how internet companies are "exploiting human psychology."

There may be bad things about how internet platforms are run. There may be problems with certain implementations and the impact they have on society, but a blanket ban on stuff, just because Hawley has decided it's bad, seems kinda crazy. Whatever happened to the Republican party position of getting government out of regulating businesses? This is not just regulating businesses, it's literally getting down to the product/feature decision level for no obvious reason other than Hawley's personal animus.

Filed Under: addiction, autoplay, badges, infinite scroll, internet, josh hawley, social media, time limits
Companies: facebook, google, twitter