FTC Promises To Play Hardball With Robocall-Enabling VOIP Providers

from the whac-a-mole dept

Every year or so, the FCC unveils a new plan to combat robocalls it claims will finally tackle the annoying menace. Granted, year after year, the problem either gets worse or stays relatively the same. We've already noted that this is generally due to few things: one, a steady erosion by the courts (and lobbyists) of what the FCC can or can't actually do when it comes to various annoyances like automated spam texts or live robocalls.

The other issue is that regulators and policymakers tend to frame the problem as one exclusive to scammers -- when a wide variety of telecoms, marketing, and debt collection companies use all the same dodgy tactics to annoy consumers they often know can't pay anyway. If you hadn't noticed, trying to craft rules that leave huge carve outs for "legitimate" companies while still hamstringing outright scammers generally doesn't work very well. You've also got to craft rules and systems that allow robocalls people want (medical and dental appointment reminders, for example).

Even when only talking about scam robocalls, there's still room for meaningful improvement. The steady adoption of SHAKEN/STIR authentication technology has helped crack down on phone number spoofing. Targeting "gateway providers," who act as a proxy here in the U.S. for robocalls originating overseas, could also help.

Meanwhile the FTC says it's also going to start filing lawsuits against voice over IP (VOIP) companies that fail to cooperate with investigations into illegal robocalls:

"Companies that receive FTC Civil Investigative Demands must promptly produce all required information,” said Samuel Levine, Director of the FTC’s Bureau of Consumer Protection. “These demands are not voluntary. Companies that don’t respond fully, or don’t respond at all, will have to answer to a federal district court judge, as these cases demonstrate."

The agency receives upwards of two million consumer complaints about robocalls every nine months. The YouMail Robocall Index indicates that there are still 3.9 billion robocalls placed to U.S. consumers alone every single day, or 5.3 million robocalls per hour. And again, contrary to the narrative generally seeded by regulators, most U.S. robocallers aren't "scammers": they're cable companies, banks, and debt collectors.

And while a lot of the calls are companies calling about overdue bills, many of these calls cross a line into outright harassment. Many of these companies know the customers they're reaching out to can't pay; yet the National Consumer Law Center (NCLC) has repeatedly testified before Congress that these robocallers can sometimes call folks upwards of hundreds of times a day, even after being asked to stop. And they often use many of the same tactics used by outright scammers.

As with everything at the FTC, it's a matter of resources. The agency is tasked with tackling everything from bleach labeling to home heating system repair scams, generally with limited staff and funds. And while the FCC and FTC dole out a ton of fines against robocallers, the vast majority of them are simply never paid or collected. Either because the target company is a scammer that's hard to find, or they're a deep-pocketed corporation that can litigate any penalties for ignoring robocall rules into oblivion.

Again though, you'll notice focus remains on "illegal" robocalls, which is a problem when the courts and lobbyists keep weakening the definition of what constitutes a "legal" robocall and what regulators can do about it. The broader the definition and the more loopholes allowed to make sure large, "legitimate" companies can continue to annoy and harrass people, the easier they are for outright scam robocallers to exploit.

Filed Under: ftc, robocalls, voip

FOIA Lawsuit Featuring A DC Police Whistleblower Says PD Conspired To Screw Requesters It Didn't Like

from the affidaviting-the-quiet-part-loud dept

It's no secret government agencies love to screw with FOIA requesters. This is especially true when the responding agency doesn't care for the requester's attitude or thinks the release of information might lead to future negative reporting or embarrassment.

Most agencies, however, are careful not to set up any policies -- formal or informal -- that serve to deter certain requesters. And those that do have, so far, been lucky enough to not employ a whistleblower in their FOIA departments.

That's what happened to the Washington DC Metro Police Department, according to a recently filed lawsuit. Here's Elizabeth Nolan Brown with the details for Reason:

Did D.C. cops conspire to keep damning information from people and groups critical of them? That's what criminal defense lawyer Amy Phillips alleges in a new federal lawsuit, filed in the U.S. District Court for the District of Columbia.

The suit stems from a whistleblower's account of life inside the D.C. police department's Freedom of Information Act (FOIA) office. The whistleblower said she was instructed to flag for higher-ups any records requests coming from certain individuals and groups, as well as requests regarding certain sensitive topics. They would then strategize about ways to discourage, delay, or deny these requests.

Those targeted by this informal policy included reporters, activists, and members of local advisory groups. This is from former DC Metro PD FOIA officer Vendette T. Parker's sworn affidavit, which is attached to the defense lawyer's lawsuit [PDF]:

Some examples are Eric Flack, WUSA9 reporter; Marina Marraco, Fox5 reporter; the ACLU; Denise Krepp ANC [Advisory Neighborhood Commission] Commissioner; Lorenzo Greene, ANC Commissioner; Benjamin Douglass, Anti-Defamation League (ADL); Emily Barth, Public Defender's Office; and Amy Phillips, Public Defender's Office; among others.

This list was compiled by Parker and Metro PD Chief Operating Officer, LeeAnn Turner. As head of the FOIA office, Parker was expected to stonewall requests from requesters on the list as well as shield the department and its Chief of Police from embarrassment.

Although Ms. Turner did not name any specific individual in this meeting, she made it clear that I should bring to her attention any request coming from a person he has previously published a negative media article about Chief Newsham or MPD, if he uses the records for litigation if he is outspoken in City Council or community meetings in a negative way toward Chief Newsham or MPD, if the requester is the subject of a high profile incident, or if he repeatedly requests records that have the potential to be detrimental to Chief Newsham or MPD, regardless is of whether or not what is currently being requested is potentially detrimental.

The list of documents that might trigger this informal policy (no matter who requested them) were requests targeting the PD's controversial Gun Recovery Unit, personnel records, emails involving the police chief, use of force records, stop and frisk records, and anything involving "recent negative high profile events."

The list of requests and requesters was forwarded to Turner and the police chief and a weekly meeting was held to discuss how best to thwart requests that satisfied the unwritten criteria established by the PD's Chief Operating Officer.

Amy Philips first suspected something might be up after attending an Adverse Action Hearing for Officer Sean Lojocano, who was accused of conducting "unnecessarily invasive genital searches" of people he stopped. Despite this meeting being attended by other members of the public (including an ACLU rep and a local journalist), the Metro PD rejected Philips' request for recordings and transcripts of the hearing. And it did so in record time.

Less than ninety minutes after Phillips submitted her Lojocano request through the District’s online FOIA portal, she received a response denying her request in full. The response came from Latrina Crumlin, who identified herself as a “Staff Assistant, FOIA” for MPD. The response read “A release of such records would constitute as a [sic] clearly unwarranted invasion of personal privacy and is exempt from disclosure pursuant to D.C. Official Code § 2-534(a)(2) and (a)(3)(C).”  

This was wrong, and it was strange. Usually, MPD takes weeks or months to provide any substantive response to FOIA requests. And Crumlin’s position appeared to be that the records of a public hearing—one that Phillips and many others attended—were categorically excludable as invasions of someone’s privacy, which does not make any sense.

As Philips' lawsuit points out, a policy like this -- whether official or unofficial -- violates her First Amendment right to access this information. She's seeking an injunction forbidding the PD from engaging in future viewpoint and content based discrimination when handling FOIA requests.

While it's almost certain other public agencies are engaging in similar practices to thwart pesky requesters or delay public embarrassment for as long as possible, this is the first time a FOIA litigant has secured a sworn affidavit from someone who participated in FOIA keep away at the behest of their supervisors. That's going to go a long way in litigation like this and with any luck, the Metro PD won't be able to jerk people around in the future just because it doesn't like them or their requests.

Filed Under: dc metro police, foia, transparency, washington dc

Senator Blumenthal: Dismissing All Critics Of EARN IT As 'Big Tech Lobbyists' Shows Your Unwillingness To Recognize The Massive Problems In Your Bill

from the obnoxious dept

In the past, whenever Senator Richard Blumenthal has been called out for his many terrible legislative ideas regarding regulating technology and the internet, he has a habit of dismissing all of the concerns by claiming the complaints are only coming from "big tech lobbyists." He did this a few years ago with FOSTA, which has since proven to be exactly the disaster many of us warned Senator Blumenthal about at the time. This time around, he's going straight to the same playbook again, and it's good to see that he's getting some pushback. Nathalie Maréchal, from Ranking Digital Rights has published a great piece over at Tech Policy Press: No, Senator Blumenthal, I am not a Big Tech Lobbyist.

Ranking Digital Rights is about as far from a "big tech lobbyist" as you can find. The organization has been advocating for the FTC to ban targeted advertising, which is basically the key way in which both Google and Facebook make the majority of their money. And yet, it also recognizes the dangers of EARN IT.

The article notes that over 60 human rights groups signed a detailed letter highlighting the many problems of the bill. For Blumenthal to simply dismiss all of those concerns -- put together by respected groups who are in no way "big tech lobbyists" -- shows his pure disdain for facts and unwillingness to put in the effort to understand the very real damage his bill will do should it become law.

It's shameful behavior for a US senator, even if not surprising.

Filed Under: criticism, earn it, encryption, good faith, lobbyists, richard blumenthal

California Sheriff, US DOJ Sued For Seizures Of Cash Generated By Legal Pot Businesses

from the putting-the-'joint'-back-in-'joint-task-force' dept

A lawsuit filed against both California and federal law enforcement agencies claims the San Bernardino County Sheriff's Department is exploiting the disagreement between state and federal marijuana laws to stop and seize cash being transported from legal marijuana dispensaries.

Marijuana is legal in many forms in multiple states. Unfortunately, the federal government has yet to legalize marijuana in any form, putting purveyors of legal products at risk of being prosecuted by the federal government despite their adherence to local laws.

Empyreal -- a cash transport business -- has experienced the SBSD's abuse firsthand on multiple occasions.

The driver of an armored car carrying $712,000 in cash from licensed marijuana dispensaries was heading into Barstow on a Mojave Desert freeway in November when San Bernardino County sheriff’s deputies pulled him over. They interrogated him, seized the money and turned it over to the FBI.

A few weeks later, deputies stopped the same driver in Rancho Cucamonga, took an additional $350,000 belonging to legal pot stores and gave that cash to the FBI too.

The transport company says it complies with all federal laws pertaining to handling of cash generated by legal pot businesses -- something that is supposed to allow the cash to travel unmolested to banks willing to handle this cash. The banks also have to perform their own due diligence, which encompasses those entrusted with moving the cash from businesses to banks and vice versa.

Despite everything being on the apparent up-and-up, this particular sheriff thinks his department is doing the right thing by targeting vehicles officers can safely assume are full of cash and walking away with that cash while mumbling things about drug trafficking and money laundering. The department also sends out drug dogs to guarantee deputies have "permission" to perform warrantless searches, since it's highly likely proceeds from marijuana businesses will smell like marijuana.

(On top of that, a large percentage of cash in circulation contains trace amounts of drugs, which would logically be detected by drug dogs. This should be seen as evidence of nothing more than a bill being in circulation, but cops pretend it means the cash could only have come from drug sales. It's all extremely -- and conveniently -- stupid.)

San Bernardino Sheriff Shannon Dicus (one of the defendants in Empyreal's lawsuit) and his department are some of the main beneficiaries of cash seized during operations like these -- ones that involve federal agents to sidestep local marijuana legalization laws and ensure the retention of a majority of every dollar seized. That's because his department heads the Inland Regional Narcotics Enforcement Team (IRNET). IRNET's relationship to federally adopted forfeitures is extremely profitable.

Through the U.S. Department of Justice’s equitable sharing program, the Sheriff’s Department’s participation in IRNET enables it to receive up to 80% of the proceeds recovered from civil forfeitures, he said.

IRNET has obtained nearly $18 million in equitable sharing funds since 2016, according to the Department of Justice.

If these seizures were made without federal adoption, they'd be illegal. But with the FBI's help, the Sheriff's Department can continue to make millions a year by taking legally earned cash from cash transport trucks.

All this adds up to a suin', one being handled by the Institute of Justice, which has been instrumental in securing dozens of returns of property illegally seized by law enforcement. The lawsuit [PDF] notes that the San Bernardino sheriff isn't alone in his targeting of Empyreal cash trucks. The same Dickinson County (KS) deputy, Kalen Robinson, stopped Empyreal drivers twice and seized over $165,000 during the second stop, turning it over to the DEA.

San Bernardino Sheriff Dicus hasn't offered much in support of these stops and seizures -- none of which were accompanied by citations or criminal charges. What he has offered is something that exists solely within the boundaries of pure speculation.

In response to the lawsuit over the armored cars, Dicus released a statement claiming that more than 80% of the marijuana sold in licensed dispensaries is grown illegally, but he provided no evidence that any of the eight businesses whose cash deputies seized from Empyreal’s vans were selling black-market cannabis.

“My deputies are professional, and I am confident we will prevail,” Dicus said.

No one's doing any due diligence here, least of all Sheriff Dicus. His department isn't researching dispensaries and targeting them with searches and criminal charges. Instead, his department has decided to do the easiest and most profitable thing: allow dispensaries to sell allegedly illegally grown marijuana and then take their cash once it's conveniently located in the back of a transport van. This shows the department is far less interested in disrupting illegal drug sales and far more interested in profiting from illegal behavior it seemingly has no desire to stop.

Filed Under: armored cars, asset forfeiture, asset seizure, california, legalized theft, san bernardino, san bernardino sheriff's department, sbsd

The Josh Hawley Mug: It Makes Him An Asshole, But Shouldn't Make Him A Copyright Infringer

from the hawley-shit dept

Josh Hawley, the waifish fascist Senator from Missouri, has made it onto our pages several times in the past. When he's not advocating breaking up Twitter because he doesn't like how a private company is run (fascist), or breaking up lots of other companies he simply disagrees with (fascist), you can typically find him pretending the First Amendment works the exact opposite of how it does in reality or explaining in published books and newspaper pages how much he's been silenced and canceled. It might all look very stupid on its face, but it isn't. It's actually quite diabolical.  

Hawley is a graduate of both Stanford and Yale. And, sure, you can convince me that someone can graduate from both of those schools somehow while being an idiot, but that's not Hawley. When he advocates for fascist policies and generally acts like a right-wing radio talk show host, it's not because he's stupid. It's because he's an assbag.

Now that we've gotten that out of the way, let's talk about the Josh Hawley mug he's selling on his website.

See? He's an asshole. In case you can't see the image or don't know what the issue is, that picture of Hawley was snapped by the AP and was him saluting the crowd of strange people protesting outside the Capital building because their preferred candidate lost. Some of those people later stormed the capital in a violent attempt to overthrow the will of the America people. Now Hawley, in a plain bid to generate outrage, is utilizing that picture of him saluting that crowd in order to raise campaign funds. Immediately after the launch of the mug product, his team sent out an email fundraising on it, apparently purely over the joy of making liberals angry, which appears to be one of Hawley's major policy positions.

Everyone remembers the photo of profa senator Josh Hawley raising his fist to salute the murderous rioters who stormed the Capitol, injured 150 police officers, and tried to hang Mike Pence. Now Hawley is selling a curiously named "Show Me Strong White Coffee Mug" with the same image in an amateurishly designed graphic.

He says its a "perfect way to enjoy Coffee, Tea, or Liberal Tears!" and is "not a pro-riot mug."

None of this is new or creative. The liberal tears thing is at least as old as Ben Shapiro saying it all the time and is probably older than that. The slogan is lame. And the picture, as Boing Boing goes on to note, is from the AP.

In addition, his mug uses an image based on an Associated Press photograph and is probably a copyright violation. AP told Rolling Stone that it's investigating. As you might recall, artist Shepard Fairey used an AP photo of Obama a decade ago, and ended up paying AP an undisclosed amount to settle the copyright lawsuit.

And here is where we take the Techdirt turn. The Fairey case was settled out of court, but we argued all along the way that Fairey's use should have qualified as fair use. I take the same view of Hawley's use of an AP photo. The use is for raising campaign funds, rather than purely commercial use. The photo is being used as political speech. It's at least mildly transformative, although not as strongly as Fairey's, given that most people will recognize where that image is from. And, ultimately, Hawley's mug represents zero threat to the AP's business. The AP isn't selling mugs with the picture on it to those that wish to drink liberal tears.

So while it's fun to discuss what a jerk Hawley is, trying to pretend that we think this is copyright infringement just because I don't like him would be disingenuous. And I, unlike Josh Hawley, am not that.

Filed Under: copyright, culture war, fair use, insurrection, josh hawley, mugs
Companies: ap, associated press

Blackburn & Blumenthal Introduce Terrible, Dangerous Bill To Make Sure Children Are Constantly Surveilled Online

from the this-is-a-bad,-bad-idea dept

Senator Richard Blumenthal is apparently a bottomless well of terrible internet regulation ideas. His latest is yet another "for the children" bill that will put children in serious jeopardy. This time he's teamed up with the even worse Senator Marsha Blackburn to introduce the Kids Online Safety Act, which as the name suggests is full of a bunch of overbearing, dangerous nonsense that will not protect children at all, but will make them significantly less safe while giving clueless, authoritarian parents much more power to spy on their kids.

About the only "good" part of the bill is that it doesn't attack Section 230. But the rest of it is nonsense, and based on a terrible misunderstanding of how, well, anything works. The bill doesn't just take its name from the UK's Online Safety Bill, but it also takes a similar "duty of care" concept, which is a nonsense way of saying "if you make a mistake, and let undefined 'bad stuff' through, you'll be in trouble." Here's the duty of care is self-contradictory nonsense:

BEST INTERESTS.—A covered platform has a duty to act in the best interests of a minor that uses the platform’s products or services

How the hell is a website going to know "the best interests of a minor" using its platform? That's going to vary -- sometimes drastically -- from kid to kid. Some kids may actually benefit from learning about controversial topics, while others may get dragged down into nonsense. There is no one way to have "best interests" for kids, and it's a very context-sensitive question.

PREVENTION OF HARM TO MINORS.—In acting in the best interests of minors, a covered platform has a duty to prevent and mitigate the heightened risks of physical, emotional, developmental, or material harms to minors posed by materials on, or engagement with, the platform, including—

(1) promotion of self-harm, suicide, eating disorders, substance abuse, and other matters that pose a risk to physical and mental health of a minor;
(2) patterns of use that indicate or encourage addiction-like behaviors;
(3) physical harm, online bullying, and harass17 ment of a minor;
(4) sexual exploitation, including enticement, grooming, sex trafficking, and sexual abuse of minors and trafficking of online child sexual abuse material;
(5) promotion and marketing of products or services that are unlawful for minors, such as illegal drugs, tobacco, gambling, or alcohol; and
(6) predatory, unfair, or deceptive marketing practices.

So, so much of this is nonsense, disconnected from the reality of how anything works, but let's just focus in on the whole thing about how a covered platform has a duty to "prevent and mitigate" risks associated with "eating disorders." Last year we had a content moderation case study all about the very, very difficult and nuanced questions that websites face in dealing with content around eating disorders. Many of them found that trying to ban all such conversations actually backfired and made the problem worse. But often by allowing conversations about eating disorders it actually helped steer people away from eating disorders. In fact, much of the evidence showed that (1) people didn't start getting eating disorders from reading about others with eating disorders, and (2) people writing about their eating disorders made it easier for others to come and help them find the resources they needed to get healthy again.

In other words, it's not a matter of telling websites to block information about eating disorders -- as this Blumenthal and Blackburn bill would do. That will often just sweep the issue under the rug, and kids will still have eating disorders, but not get the help that they might have otherwise.

Once again, a Blumenthal bill is likely to make the problem it ostensibly tries to solve "worse." There is similar evidence that suicide prevention is an equally fraught area, and it's not nearly as simple as saying "no discussions about suicide," because often forums for discussing suicide are where people get help. But under this bill that will be prevented.

This bill takes extremely complex, nuanced issues, which often need thoughtful, context-based interventions, and reduces to block it all. Which is just dangerous. Because kids who are interested in suicide or eating disorders... are still going to be interested in those things. And if the major websites, with big trust and safety teams and more thoughtful approaches to all of this are forced to take down all that content, the kids are still going to go looking for it and they're going to end up on sketchier and sketchier websites, with fewer controls, fewer thoughtful staff, and it is much more prone to a worse outcome.

Honestly, this approach to regulating the internet seems much more likely to cause serious, serious problems for children.

Then, there's the terrible, terrible parental surveillance section. The bill would mandate websites provide "parental tools" that would be "readily-accessible and easy-to use" so parents can spy on their kids' activities online. Now, to avoid the problems of surreptitious surveillance, which would be even worse, the bill does note that "A covered platform shall provide clear and conspicuous notice to a minor when parental tools are in effect." That's certainly better than the opposite, but all this is doing is teaching kids that constant surveillance is the norm.

This is not what we should be teaching our kids.

I know how tempting it is for parents to want to know everything their kids are doing online. I know how tempting it is to be afraid about what kids are getting up to online, because we've all heard various horror stories. But surveilling kids of all ages, all the time is a stupid, dangerous idea. First of all, the kinds of things that a parent of a six-year-old might need are drastically different than the parents of a 16-year-old. But the bill treats everyone 16 and younger the same.

And there are already lots of tools parents can use -- voluntarily -- to restrict the behavior of their kids online. We don't need to make it the expected norm that every website gives parents tools to snoop on their kids. Because that alone can do serious damage to kids. Just a few months ago there was an amazing article in Wired about how dangerous parental surveillance of kids can be.

Constant vigilance, research suggests, does the opposite of increasing teen safety. A University of Central Florida study of 200 teen/parent pairs found that parents who used monitoring apps were more likely to be authoritarian, and that teens who were monitored were not just equally but more likely to be exposed to unwanted explicit content and to bullying. Another study, from the Netherlands, found that monitored teens were more secretive and less likely to ask for help. It’s no surprise that most teens, when you bother to ask them, feel that monitoring poisons a relationship. And there are very real situations, especially for queer and trans teens, where their safety may depend on being able to explore without exposing all the details to their family.

And yet, this bill requires the kind of situation that makes teenagers less safe, and pushes them into more risky and dangerous activity.

Why is it every Blumenthal bill "for the children" will make children less safe?

And just think about how this plays out for an LGBTQ child, brought up in a strictly religious family, who wants to use the internet to find like-minded individuals. Under this bill, that information gets reported back to the parents -- and seems way more likely to lead to distress, harm and even possibly suicidal ideation -- because of this bill.

In other words, this bill tries to prevent suicide by forcing websites to take down information that might help prevent suicides, and then forces vulnerable kids in dangerous home environments to share data with their parents, which seems more likely to drive them towards suicide.

It's like the worst possible way of dealing with vulnerable children.

There are, of course, other problems with the bill, but the whole thing is based on a fundamental misunderstanding of how to raise resilient kids. You don't do it by spying on their every move. You do it by giving kids the freedom to explore and learn, but equipped with the knowledge that not everything is safe, and not every idea is a good one. You teach them to recognize that the world can be dangerous, but they need to learn how to be equipped to deal with that. Obviously, the best strategies for that will differ at different ages and based on the individual child. But assuming that all children up to age 16 must be surveilled by their parents and that websites should be forced to block information about which many kids will want to explore, seems like it would create a horrifically bad result for many, many children -- including the most vulnerable.

It's truly incredible how many horrible, horrible laws about the internet one man can sponsor, but Senator Blumenthal really has become a one-man "terrible bill idea" shop. People of Connecticut: do better. As for Blackburn, well, she's always been terrible, but I find it amusing to remind people she put out this video a decade ago, screaming about how the internet should never be regulated. And now look at her.

Filed Under: children, duty of care, eating disorders, for the children, harm prevention, marsha blackburn, online safety, parental tools, richard blumenthal, suicide, surveillance

Daily Deal: The GameCreators Mega Maker Pack Bundle

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

The GameCreators Mega Maker Pack Bundle will help you develop your own dream video game, and publish it on multiple platforms with thousands of royalty-free, 2D and 3D assets. You get AppGameKit Studio, a fully featured game development toolset with two asset packs. The bundle also has GameGuru, a non-technical and fun game maker that offers an easy, enjoyable and comprehensive game creation process that is designed specifically for those who are not programmers or designers/artists plus 9 of their asset packs. It's on sale for $80.

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

Whatever Problem EARN IT Is Trying To Solve, It Doesn't

from the that-seems-like-a-problem dept

I've already talked about the potential 1st Amendment problems with the EARN IT Act and the potential 4th Amendment problems with it as well. But a recent post by Riana Pfefferkorn at Stanford raises an even bigger issue in all of this: what actual problem is EARN IT trying to solve?

This sounds like a simple question with a potentially simple answer, but the reality, once you start to dig in, suggests that either (1) the backers of EARN IT don't actually know, or (2) if they do know, they know what they actually want is unconstitutional.

Supporters of EARN IT will say, simply, the problem they're trying to solve is the prevalence of child sexual abuse material (CSAM) online. And, that is a real problem (unlike some other moral panics, CSAM is a legitimate, large, and extraordinarily serious problem). But... CSAM is already very, very illegal. So, if you dig in a little further, supporters of EARN IT will say that the problem they're really trying to solve is that... internet companies don't take CSAM seriously enough. But, the law (18 USC 2258A already has pretty strict requirements for websites to report any CSAM they find to NCMEC (the National Center for Missing & Exploited Children) -- and they do. NCMEC reported that it received almost 21.4 million reports of CSAM from websites. Ironically, many supporters of EARN IT point to these numbers as proof that the websites aren't doing enough, while also saying it proves they don't have any incentive to report -- which makes no sense at all.

So... is the problem that those 21.4 million reports didn't result in the DOJ prosecuting enough abusers? If so... isn't the problem somewhere between NCMEC and the DOJ? Because the DOJ can already prosecute for CSAM and Section 230 doesn't get in the way of that (it does not immunize against federal criminal law). And, as Riana noted in her article, this very same Senate Committee just recently heard about how the FBI actually knew about an actual serial child sex abuser named Larry Nasser, and turned a blind eye.

And, if NCMEC is the problem (namely in that it can't process the reports fast enough), then this bill doesn't help at all there either, because the bill doesn't give NCMEC any more funding. And, if the senators are correct that this bill would increase the reports to NCMEC (though it's not clear why that would work), wouldn't that just make it even more difficult for NCMEC to sort through the reports and alert law enforcement?

So... is the problem that companies aren't reporting enough CSAM? If you read the sponsors' myths and facts document, they make this claim -- but, again, the law (with really serious penalties) already requires them to report any CSAM. Taking away Section 230 protections won't change that. Reading between the lines of the "myths and facts" document, they seem to really be saying that the problem is that not every internet service proactively scans every bit of content, but as we've discussed that can't be the problem, because if that is the problem, EARN IT has a massive 4th Amendment problem that will enable actual child sex abusers to suppress evidence!

Basically, if you look step by step through the potential problems that supporters of the bill claim it tries to solve, you immediately realize it doesn't actually solve any of them. And, for nearly all of the potential problems, it seems like there's a much more efficient and effective solution which EARN IT does not do. Riana's post has a handy dandy table walking down each of these paths, but I wanted to make it even clearer, and felt that a table isn't the best way to walk through this. So here is her chart, rewritten (all credit to her brilliant work):

If online services don't report CSAM in violation of 2258A, and the real problem is large-scale, widespread, pervasive noncompliance by numerous providers that knowingly host CSAM without removing or reporting it (NOT just occasional isolated incidents), then there's a very long list of potential remedies:

• Conduct a congressional investigation to determine the extent of the problem
• Hold a hearing to ask DOJ why it has never once brought a 2258A prosecution
• DOJ prosecutes all those providers for illegally hosting CSAM under 2252A as well as violating 2258A’s reporting requirements
• Amend 2258A(e) to increase penalties for noncompliance
• Amend Dodd-Frank to include 2258A compliance in corporate disclosure requirements (akin to Form SD)
• Encourage FTC investigation of noncompliant companies for unfair or deceptive business practices
• Encourage private plaintiffs to file securities-fraud class actions against publicly-traded providers for misleading investors by secretly violating federal reporting duties

If that's the actual problem (which supporters imply, but when you try to get them to say it outright they hem and haw and won't admit it), then it seems like any of the above list would actually be helpful here. And the real question we should be asking is why hasn't the DOJ done anything here?

But what does EARN IT actually do?

• Amend Section 230 instead of enforcing existing law
• Don’t demand that DOJ explain why they aren’t doing their job

Okay, so maybe the supporters will say (as they sometimes admit) that most web sites out there actually do report CSAM under 2258A, but there are still some providers who don't report it and these are occasional, isolated instances of failure to report by multiple providers, OR repeated failure to report by a particular rogue provider (NOT a large-scale problem across the whole tech industry). If anything, that seems more probably than the first version, which doesn't seem to be reported by any facts. However, here again, there are a bunch of tools in the regulator's tool box to deal with this problem:

• Conduct a congressional investigation to determine the extent of the problem
• Hold a hearing to ask DOJ why it has never once brought a 2258A prosecution
• DOJ prosecutes those isolated violations or the particular rogue provider

Again, what it comes down to in this scenario is that the DOJ is not doing it's job. The law is on the books, and the penalties can be pretty stiff (first failure to report is $150,000 and each subsequent failure is another $300,000). If it's true that providers are not doing enough here, such penalties would add up to quite a lot and the question again should be why isn't the DOJ enforcing the law?

But instead of exploring that, here's what EARN IT actually does:

• Amend Section 230 instead of enforcing existing law
• Don’t demand that DOJ explain why they aren’t doing their job

Okay, so next up, Riana points out that maybe it's possible that the DOJ does regular investigations of websites failing to report CSAM in violation of 2258A, but those investigations are consistently resolved without charges or fines and do not become public. Then, there's a pretty simple option for Congress:

• Hold hearings to have DOJ explain why their investigations never result in charges

But, instead, here's what Congress is doing with EARN IT (stop me if you've heard this one before):

• Amend Section 230 instead of enforcing existing law
• Don’t demand that DOJ explain why they aren’t doing their job

Okay, okay, so maybe the reality is that the DOJ does in fact criminally prosecute websites for 2258A violations, but the reason there is no public record of any such prosecution ever is that all such court records are under seal. This would be... odd, first of all, given that the DOJ loves to publicize prosecutions, especially over CSAM. But, again, here's what Congress could do:

• Tell DOJ to move for courts to unseal all sealed records in 2258A cases
• Require DOJ to report data on all 2258A prosecutions since 2258A’s enactment
• Amend 2258A to require regular reporting to Congress by DOJ of enforcement statistics
• Investigate whether providers (especially publicly-traded ones) kept 2258A fines a secret

But, instead, here's what EARN IT does:

• Amend Section 230 instead of enforcing existing law
• Don’t demand that DOJ reveal to Congress its 2258A enforcement details

So, maybe the real problem is simply that the DOJ seems to be ignoring any effort to enforce violations of 2258A. If that's the case, Congress has tools in its toolbox:

• Hold a hearing to ask DOJ why it has never once brought a 2258A prosecution
• Amend 2258A by adding a private right of action so that victims can do the work that DOJ isn’t doing

Instead, EARN IT...

• Amend Section 230 instead of enforcing existing law
• Don’t demand that DOJ explain why they aren’t doing their job

So... that's basically all the possible permutations if the problem is -- as some supporters claim repeatedly -- that companies are regularly violating 2258A and not reporting CSAM that they find. And, in almost every case, the real questions then should be why isn't the DOJ enforcing the law? And there are lots of ways that Congress should deal with that. But EARN IT does literally none of them.

About the only thing that supporters of EARN IT have claimed in response to this point is that, because EARN IT allows for state AGs and civil suits, it is "adding more cops to the beat" to take on failures to report under 2258A. But... that's kinda weird. Because wouldn't it make a hell of a lot more sense to first find out why the existing cops don't bother? Because no one has done that. And, worse, when it comes to the civil suits, this response basically means "the DOJ doesn't care to help victims of CSAM, so we're leaving it up to them to take matters into their own hands." And that doesn't seem like a reasonable solution no matter how you look at it.

If anything, it looks like Congress putting the burden for the DOJ's perpetual failings... on the victims of CSAM. Yikes!

Of course, there are other possible problems here as well, and Riana details them in the chart. In these cases, the problems aren't with failure to report CSAM, but elsewhere in the process. So... if websites do properly report CSAM to NCMEC's CyberTipline, perhaps the problem is that CSAM isn’t being taken down promptly enough or reported to NCMEC “as soon as reasonably possible” as required by 2258A(a)(1)(A)(i).

Well, then, as Riana notes, there are a few things Congress could do:

• Debate whether to insert a firm timeframe into 2258A(a)(1)(A)(i)
• Hold a hearing to ask ICS providers of various sizes why delays happen and whether a specific timeframe is feasible

Instead, what EARN IT actually does is...

• Amend Section 230

Okay, so if companies are reporting to NCMEC in compliance with 2258A, perhaps the problem is the volume of reports is so high that NCMEC is overwhelmed.

Well, then, the possible solutions from Congress would seem to be:

• Hold a hearing to ask NCMEC what it would take to process all the reports they already get
• Appropriate those additional resources to NCMEC

But, what EARN IT does is...

• Amend Section 230 to induce providers to make even more reports NCMEC can’t keep up with
• Give zero additional resources to NCMEC

Okay, so maybe the websites do properly report CSAM to NCMEC, and NCMEC is able to properly alert the DOJ to the CSAM such that the DOJ should be able to go prosecute the actual abusers, but the DOJ doesn’t act on the reports providers make, and doesn’t make its own mandatory reports to Congress about internet crimes against children. That would be horrifying, but again, it would seem like there's a pretty clear course of action for Congress:

• Order GAO to conduct a study on what happens to CyberTips passed by NCMEC to DOJ
• Hold a hearing to ask DOJ why it isn’t acting on tips or filing its required reports
• Appropriate additional resources to DOJ

All of those would help, if this is the problem, but instead, here's what EARN IT actually does:

• Earmark $1 million for IT improvements
• Don’t demand that DOJ explain why they aren’t doing their job

You might sense a pattern here.

And finally, perhaps websites do report CSAM in compliance with 2258A to NCMEC's CyberTipline, and maybe NCMEC does relay important information to the DOJ... and horrifyingly, perhaps federal law enforcement is failing child sex abuse victims just as the FBI turned a blind eye to Larry Nassar’s abuse of dozens of child gymnasts for years.

Well, then it seems fairly obvious what Congress should do:

• Hold a hearing on the FBI’s failure to protect children (this did happen in September 2021)

But here's what EARN IT does in that situation:

• Amend Section 230, effectively delegating enforcement for child sexual abuse to states and victims themselves

As Riana summarizes:

No matter what the problem with online CSAM is, EARN IT isn’t going to fix it. It’s only going to make things worse, both for child victims and for everyone who uses the internet. The truth about EARN IT is that either there isn’t a serious noncompliance problem among providers that’s pervasive enough to merit a new law, but Congress just can’t resist using Section 230 as a political punching bag to harm all internet users in the name of sticking it to Big Tech… or there is a problem, but the DOJ is asleep at the wheel – and EARN IT is a concession that Congress no longer expects them to do their jobs.

Either option should be shameful and embarrassing for the bill’s supporters to admit. Instead, this horrible legislation, if it passes, will be hailed as a bipartisan victory that shows Congress can still come together across the aisle to get things done. Apparently, harming Americans’ rights online while making CSAM prosecutions harder is something both parties can agree on, even in an election year.

So, whatever problem the backers of EARN IT think they're solving for, EARN IT doesn't do it. That seems like it should be a big fucking deal. But, instead of responding to these points, the sponsors claim that people highlighting this "don't care about CSAM."

Filed Under: 2258a, csam, doj, earn it, encryption, fbi, reporting, surveillance
Companies: ncmec

Gift Of Sight Stolen As Medical Implant Company Implodes

from the the-future-is-now dept

Techirt has long discussed how in the modern era, the things you buy aren't actually the things you buy. And the things you own aren't actually the things you own. Things you thought you owned can be downgraded, bricked, or killed off entirely without much notice. That game console with backward compatibility? It no longer has backward compatibility. That smart home hub or smart speaker at the heart of your living room setup you've enjoyed for years? It not long works. The movies and books you thought were permanently in your personal catalog? Sorry, they aren't anymore. That perfectly good two-year-old phone? It no longer gets security updates, putting you and your data at risk.

This is all bad enough when talking about smart home hubs or smart refrigerators, but it's quite another thing entirely when it comes to medical implants. IEEE Spectrum has the Cory Doctorow-esque cautionary tale of Second Sight Medical Products whose Argus optical implants were commonly installed in patients in the early aughts to help them see. Accurately heralded as immeasurably innovative at the time, these devices may soon no longer work or be supported because the company that made them is going bankrupt:

"Terry Byland is the only person to have received this kind of implant in both eyes. He got the first-generation Argus I implant, made by the company Second Sight Medical Products, in his right eye in 2004 and the subsequent Argus II implant in his left 11 years later. He helped the company test the technology, spoke to the press movingly about his experiences, and even met Stevie Wonder at a conference. “[I] went from being just a person that was doing the testing to being a spokesman,” he remembers.

Yet in 2020, Byland had to find out secondhand that the company had abandoned the technology and was on the verge of going bankrupt. While his two-implant system is still working, he doesn’t know how long that will be the case. “As long as nothing goes wrong, I’m fine,” he says. “But if something does go wrong with it, well, I’m screwed. Because there’s no way of getting it fixed."

Users went from the miracle of suddenly being able to see their first Christmas tree, to the terror of the gift being taken away from them with absolutely no recourse. Not only that, the systems that were installed create new health complications if they're left installed but stop working, and are difficult to remove -- a cost that has to be eaten by the patients. The company's patients went from having their lives revolutionized by technology to, well, the opposite:

"These three patients, and more than 350 other blind people around the world with Second Sight’s implants in their eyes, find themselves in a world in which the technology that transformed their lives is just another obsolete gadget. One technical hiccup, one broken wire, and they lose their artificial vision, possibly forever."

It's quite the cautionary tale for the entire electroceutical sector, and those who assume the cutting edge technologies that help them today will stick around for tomorrow. It's one thing for your flip phone or Betamax player to become irrelevant, it's another thing for essential health devices embedded in your skull to simply stop working because their manufacturer couldn't keep their finances in order.

Filed Under: argus i, optical implants, ownership, right to repair
Companies: second sight medical products

Auguste Rodin's Sculptures Are In The Public Domain; 3D Scans Of Them Should Be, Too

from the free-the-scans dept

Auguste Rodin is without doubt one of the greatest sculptors in history. Equally without doubt, his works are now in the public domain, since he died in 1917. Unfortunately, the situation in France is a little more complicated, for reasons the artist and public domain campaigner Cosmo Wenman explains:

Shortly before his death, Rodin willed his estate to the French government, which created the Musée Rodin and assigned to it droit moral (“moral rights”) in Rodin’s oeuvre. By these rights the museum is permitted under French law to manufacture and sell a limited quantity of modern, posthumous bronze casts and represent them as “original” Rodin works. Musée Rodin earns considerable income from sales of such posthumous casts, as well as unlimited, simple reproductions.

Musée Rodin’s moral rights apply only within French jurisdictions, and only in very limited circumstances. They do not impinge on the public domain status of Rodin’s works, nor on the public’s right to freely copy them, even within France.

Wenman believes that museums, art galleries and private collectors around the world should make 3D scans of important public domain works and release them freely, thereby becoming “engines of new cultural creation”. The Musée Rodin disagrees, presumably because it is concerned that its monopoly on “original” posthumous casts might be devalued. As a result, it has been fighting for some years Wenman’s efforts to obtain the museum’s 3D scans of Rodin’s works through the courts.

Wenman has tweeted an update on his lawsuit. One piece of good news is that thanks to his legal campaign, the scans carried out for the Musée Rodin’s of two famous works – “The Kiss” and “Sleep” – are now freely available. Even better news is that Wenman has discovered the Musée Rodin has scanned its entire collection at high resolution. As he says: “These documents are of world wide interest and immeasurable artistic, academic, cultural, and commercial value. I am going after all of them, for everyone.”

It’s regrettable that some museums and galleries are still resisting these attempts to liberate public domain works. When those who are supposedly the guardians of society’s cultural patrimony are fighting to stop people from having full and free access to it, it’s clear that copyright’s poison, based on ownership and exclusion, has entered deep into their souls.

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

Originally published to the Walled Culture site.

Filed Under: 3d scans, auguste rodin, copyright, france, public domain