Joe Biden Can't Tell The Difference Between The 1st Amendment & Section 230; Still Thinks Video Games Cause Violence

from the okay-boomer dept

Joe Biden is the latest Democratic candidate for President interviewed by the NY Times editorial board, and if you're interested in tech policy, well, it's a doozy. Biden seems confused, misinformed, or simply wrong about a lot of issues from free speech to Section 230 to copyright to video games. It's really bad. We already knew he was on an anti 230 kick when he gave a confused quote on it late last year, but for the NY Times he goes even further:

Charlie Warzel: Sure. Mr. Vice President, in October, your campaign sent a letter to Facebook regarding an ad that falsely claimed that you blackmailed Ukrainian officials to not investigate your son. I’m curious, did that experience, dealing with Facebook and their power, did that change the way that you see the power of tech platforms right now?

No, I’ve never been a fan of Facebook, as you probably know. I’ve never been a big Zuckerberg fan. I think he’s a real problem. I think ——

CW: Can you elaborate?

No, I can. He knows better. And you know, from my perspective, I’ve been in the view that not only should we be worrying about the concentration of power, we should be worried about the lack of privacy and them being exempt, which you’re not exempt. [The Times] can’t write something you know to be false and be exempt from being sued. But he can. The idea that it’s a tech company is that Section 230 should be revoked, immediately should be revoked, number one. For Zuckerberg and other platforms.

CW: That’s a pretty foundational laws of the modern internet.

That’s right. Exactly right. And it should be revoked. It should be revoked because it is not merely an internet company. It is propagating falsehoods they know to be false, and we should be setting standards not unlike the Europeans are doing relative to privacy. You guys still have editors. I’m sitting with them. Not a joke. There is no editorial impact at all on Facebook. None. None whatsoever. It’s irresponsible. It’s totally irresponsible.

There is so much to talk about here. First of all, Biden admits upfront that the reason he thinks CDA 230 should be repealed is because of his personal dislike of Facebook's founder and CEO. It's one thing to argue that the platform creates harms and therefore we need a different regulatory approach, but to start out by saying you just don't like the guy, and use that as the basis for punishing the entire internet is... really something.

Second, Biden seems to be (again) confusing the 1st Amendment with Section 230. It's not Section 230 that allows people to post false things on Facebook. It's the 1st Amendment. You know, the thing that Biden is supposed to "protect and defend" if he becomes President.

Third, the comparison with the NY Times is completely offbase. The NY Times is also protected by Section 230 if a third party says something on its platform, they cannot be sued. And, similarly, if Facebook itself said something that violated the law, it can be sued. All 230 does is put the liability in the right place: on the actual speaker. Facebook is not "exempt" from any law. Biden is just wrong.

Fourth, he's not even talking about reforming 230, he's talking about revoking it. That's insane and would lead to crippling litigation and vast silencing of the public. It's not even in the realm of reasonable discussion.

Fifth, notice at casual he is about lumping in the rest of the internet, just because he dislikes Facebook. Take away 230 for the entire internet, even as it's what enabled free speech to really flourish on the internet. And, again, it's amazing how confused he is thinking that 230 is the issue when it's actually the 1st Amendment.

Sixth, the point about "editors" is also completely nonsensical. Editors have nothing to do with it, unless he's saying that no one should be allowed to be posted on the internet unless it's been edited first.

And just to be clear here, a lot of what Biden says in this interview is factually false. Yet, here, he's arguing that the NY Times should be liable for posting his falsehoods. And Facebook should be liable if people repost them there. And I should be liable because I'm posting his nonsense here. This is not someone who understand even the first thing about Section 230, how the internet works, or free speech online.

He continued with more word salad:

CW: If there’s proven harm that Facebook has done, should someone like Mark Zuckerberg be submitted to criminal penalties, perhaps?

He should be submitted to civil liability and his company to civil liability, just like you would be here at The New York Times. Whether he engaged in something and amounted to collusion that in fact caused harm that would in fact be equal to a criminal offense, that’s a different issue. That’s possible. That’s possible it could happen. Zuckerberg finally took down those ads that Russia was running. All those bots about me. They’re no longer being run. He was getting paid a lot of money to put them up. I learned three things. Number one, Putin doesn’t want me to be president. Number two, Kim Jong-un thinks I should be beaten to death like a rabid dog and three, this president of the United States is spending millions of dollars to try to keep me from being the nominee. I wonder why.

Civil liability for what? What exactly is the legal violation he's talking about? And notice, again, that he immediately resorts to a personal vendetta and stuff about Russia, ignoring that Facebook has a huge team constantly fighting and trying to take down Russian ads. Yet, Biden falsely states that Facebook was leaving them up to give Zuckerberg money. Does he not know how any of this works?

Of course, then he more or less admits the reason he hates Silicon Valley is because they opposed him on SOPA/PIPA. If you don't recall, for years, Biden was one of Hollywood's biggest friends in the Senate. Even once he became VP, he convened a "summit" about copyright in which he only invited maximalists. In the White House, he was the main voice pushing for SOPA/PIPA and apparently got quite upset when Obama eventually came out against the law. Here, he tries to rewrite history, pretending that SOPA/PIPA was just about "protecting" copyright and artists, when it was actually a massive tool for internet censorship -- and notice how he calls an internet exec "a little creep." He goes on to display near total ignorance and direct hatred for Silicon Valley and innovation.

There are places where [President Obama] and I have disagreed. About 30 percent of the time, I was able to convince him to my side of the equation. Seventy percent of the time I wasn’t when we disagreed, when he laid something out. And you may recall, the criticism I got for meeting with the leaders in Silicon Valley, when I was trying to work out an agreement dealing with them protecting intellectual property for artists in the United States of America. And at one point, one of the little creeps sitting around that table, who was a multi- — close to a billionaire — who told me he was an artist because he was able to come up with games to teach you how to kill people, you know the ——

CW: Like video games.

Yeah, video games. And I was lectured by one of the senior leaders there that by saying if I insisted on what Leahy’d put together and we were, I thought we were going to fully support, that they would blow up the network, figuratively speaking. Have everybody contact. They get out and go out and contact the switchboard, just blow it up.

And then one of these righteous people said to me that, you know, “We are the economic engine of America. We are the ones.” And fortunately I had done a little homework before I went and I said, you know, I find it fascinating. As I added up the seven outfits, everyone’s there but Microsoft. I said, you have fewer people on your payroll than all the losses that General Motors just faced in the last quarter, of employees. So don’t lecture me about how you’ve created all this employment.

The point is, there’s an arrogance about it, an overwhelming arrogance that we are, we are the ones. We can do what we want to do. I disagree. Every industrial revolution, every major technological breakthrough, every single one. We’re in the fourth one. The hardest speech I’ve ever had to make in my life, I was asked to speak at the World Economic Forum, to give an answer on, to speak to the fourth industrial revolution. Will there be a middle class? It’s not so clear there will be, and I’ve worked on it harder than any speech I’ve ever worked on.

The fact is, in every other revolution that we’ve had technologically, it’s taken somewhere between six years and a generation for a government to come in and level the playing field again. All of a sudden, remember the Luddites smashing the machinery in the Midlands? That was their answer when the culture was changing. Same thing with television. Same thing before that with radio. Same thing, but this is gigantic. And it’s a responsibility of government to make sure it is not abused. Not abused. And so this is one of those areas where I think it’s being abused. For example, the idea that he cooperates with knowing that Russia was engaged in dealing with using the internet, I mean using their platform, to try to undermine American elections. That’s close to criminal.

I can't even follow half of that word salad. It's nonsensical word spewing. The fact that the big tech companies don't employ so many people directly, completely misses the point that was being made: that the internet has enabled so many jobs around the world, not directly at those companies, but enabling so many people to start their own companies and businesses, and to create jobs at other companies because of the internet. Notice that Biden's world view is totally focused on how many jobs are created by single large companies. That's completely missing the point.

And that final paragraph is just bizarre. He's suggesting government has to "level the playing field" with each new technological revolution. But he can't explain when or how they did that. When or how did they do that with the Luddites? When or how did they do that with TV? When or how did they do that with radio? What is he even talking about?

At the end of this section he also insists that the internet is bad for children:

Well the tech industry, look, not everyone in the tech industry is a bad guy, and I’m not suggesting that. What I’m suggesting is that some of the things that are going on are simply wrong and require government regulation. And it’s happened every single time there’s been a major technological breakthrough in humanities since the 1800s, and this requires it. For example, you have children?

CW: No.

Well, when you do and you’ll watch them on the internet, it gets a little concerning. What in fact they can see and not see, and whether or not what they’re seeing is true or not true. It matters. It matters. It’s like — well, anyway.

It's like -- well, anyway. Yeah. Look, there is false information on the internet. There is false information elsewhere. Hell, much of this interview with Biden is him spewing false information. Perhaps children shouldn't be allowed to read it.

Or, perhaps, we teach our children how to be good information citizens, and teach them how to be skeptical and how to do more research. Perhaps, it's the job of parents and school teachers and other mentors to teach kids how to take in, filter, and understand information. Having politicians who don't know the first thing about the internet come in and tell them how to run things doesn't fix any of that. Indeed, it only makes the problem worse, by sweeping reality under the rug.

Not that any of the candidates running for President seem particularly good on tech policy, but Biden's outright hatred for the internet, and "creeps" in Silicon Valley seems to have completely clouded his thinking.

Filed Under: 1st amendment, copyright, free speech, innovation, intermediary liability, joe biden, mark zuckerberg, section 230, silicon valley, video games
Companies: facebook

Biden Spreads False Info By Saying That Taking Away Section 230 Will Make Facebook Liable For Spreading False Info

from the ok-boomer dept

Well, here we go again. So many politicians seem to think that Section 230 is the root of anything bad they see online, and insist that it needs to be removed to fix things that have nothing to do with 230. The latest is Joe Biden, who has a pretty horrible record regarding his own understanding of technology and the internet. In a weird comment on CNN about what to do about Facebook and moderating political advertising... Biden shifted the conversation to Section 230 after first making some false statements about what the law requires.

Here's what he says:

I just think that social media has to be more socially conscious of what is important in terms of our democracy. And part of that is a little, uh, truth in lending here. And everything is not about whether they can make a buck. It requires the journalistic responsibility you have [points at CNN journalist interviewing him]. You can't do what they can do on Facebook. You can't do what they can do and just say anything at all and not acknowledge that when you know something is fundamentally not true. And I just think it's a little out of hand.

And I, for one, think that we should be considering taking away the exemption that they cannot be sued for knowingly engaged in promoting something that's not true.

This is weird and nonsensical on many levels, though it appeals to those clueless about the law (and the Constitution), and plays to those who just hate Facebook for the sake of hating Facebook (hence the loud audience applause at the end of that clip). To be clear, almost everything Biden says in that clip is wrong or nonsense. Yes, to a larger extent, Facebook and any company is focused on making money, but to claim that they're only allowing unmoderated political ads because of the money is silly. The issue is a lot more complex and nuanced than that. The larger issue is do you actually want Facebook determining which political ads are "truthful"? Because I'd bet a fair sum of money that if Facebook took the opposite position, and agreed to start carefully moderating all political ads, Joe Biden would sit on the very same stage and spew some nonsense about "how dare Facebook appoint itself the arbiter of truth!" I mean, we already saw exactly that split when Elizabeth Warren both complained when Facebook moderated a political ad and also when it did not.

Second, it's weird to argue that the platform hosting political ads must have "journalistic responsibility." Politicians (including Joe Biden) regularly post political ads on TV and elsewhere across the internet spewing all kinds of nonsense that is not true and meet no level of "journalistic responsibility" but we don't see anyone complaining about those platforms having those ads. No one goes after the local TV affiliate because it runs a bogus political ad. We [correctly!] complain about the campaign running the bogus ad.

Also, it's an apples and oranges comparison to point to the journalist and say that she can't do what Facebook does, because a journalist doesn't host political ads at all. Or if the argument is that a journalist can't post misleading information, well, that's obviously false. It happens all the damn time. And in most cases, outside of the very rare cases where such misleading information reaches the very high bar of defamation, it is entirely legal under the 1st Amendment of the Constitution (you know, the document that Biden is running to supposedly protect).

Finally, that's also why targeting Section 230 is particularly ridiculous here and makes no sense. Biden's real complaint seems to be with the 1st Amendment and the fact that sometimes politicians are less than fully truthful in their advertising. But that's kinda on the politicians and has literally nothing at all to do with Section 230. At best if you repealed Section 230 in the belief that it's allowing Facebook to let in misleading political ads, you'd either get Facebook to stop looking at all of its ads entirely (to avoid any knowledge) in which case nothing will change, or you would get a situation like the one with Twitter where it says it's getting out of the political ad business entirely, which creates a whole different set of problems.

Neither of those "solutions" solves the problem Biden is really pretending to be mad about: the fact that some politicians on the other side are posting things that he (reasonably!) finds to be misleading. But that's because, in typical Biden fashion, he's not even remotely curious enough to understand the root causes of this and how the overall system works, but prefers to go for the easy layup position of "blame Facebook" and "blame this random law that people falsely think allows Facebook to do this."

Frankly, if politicians saying false and misleading things should be against the law, as Biden implies here, his very statement on CNN itself would be illegal. And, obviously, that's crazy. Because of the 1st Amendment... which is what Biden appears to be truly upset with.

Filed Under: cda 230, free speech, joe biden, lies, political advertising, section 230
Companies: facebook

Biden, Goodlatte Preach To The IP Maximalist Choir, Vow To Make 'Second-Rate' Countries Bend To US IP Laws

from the what-do-you-give-industries-that-have-everything? dept

One of the rules of public speaking is: know your audience. You can hold people's attention better and garner support by following this rule. This doesn't mean you need to prostrate yourself before them and give them exactly what they want, however. Once you do that, you're just preaching to the choir, like Vice President Joe Biden and Rep. Robert Goodlatte did recently.

Here's the pitch:

Vice President Joe Biden told members of the tech and entertainment industry that intellectual property protections need to be bolstered to account for changing technologies and foreign threats.

That's a pretty delusional assumption on Biden's behalf. There's no indication that "bolstering" IP laws is the only route worth taking, especially when considering "changing technologies." Stronger IP protection isn't a panacea. It's little more than legislatively pleasuring overly-satiated incumbent industries.

But every choir needs a preacher, especially this one.

American creativity needs protections at home and abroad to thrive, he said, speaking at an event hosted by the Motion Picture Association of America and Microsoft.

Give the people what they want to hear. That's the real message Biden is sending. Lifetime plus 70 years still isn't enough protection. 20-year patents (plus extensions triggered by any number of variables) isn't enough protection. Trademark forever isn't enough protection. ICE partnering with the MPAA to play copyright cop isn't enough protection.

But enough about the domestic front. The other "obstacle" these industries face on their way to record sales numbers is "weak" protections abroad.

In addition to benefitting American creators, other countries would benefit from having stronger intellectual property protections, he continued.

“Until they clamp down on copyright infringement … those nations will remain second-rate powers, unable to nurture that environment that enables home grown innovation.”

Oh, sweet lord. Trust Daddy Yankee. The First World is the First World because copyright lasts well over 100 years in most cases. All of you "second-rate" countries need to lock IP the fuck down if you ever want to make something of yourselves. Look at all this condescension! Play by our rules if you want to succeed, Biden says, without offering anything in the way of evidence.

You can practically hear the "amens" from here. Of course Microsoft and the MPAA want to hear the US will shame, cajole, threaten or TPP every other country into compliance. Might = right, and the US wields the mightiest IP laws of all.

Goodlatte also pitched in a bit, pretending he and his committee are "conducting a sweeping review" of copyright law. He's also taken part in the "Congressional International Anti-Piracy Caucus," which had done little more than "call on" ad networks to stop "supporting" whatever sites the Caucus/incumbents have determined to be "pirate sites."

Here's Goodlatte's contribution, which follows a statement where he expresses faith in legislators' ability to bend China to America's will.

Ultimately, the U.S. needs to have laws and business models that protect intellectual property, Goodlatte continued.

“We’ve got to convince consumers that they’ve got a long term investment in paying something,” he said.

“If you don’t reward the creators, you’re not going to get the creativity.”

The US has "laws and business models that protect intellectual property." Does he actually believe the US doesn't? What Goodlatte envisions is some sort of IP utopia where nothing is ever stolen infringed and incumbents are allowed to return to their profit-margin heydays of physical goods and exorbitant profit margins. The MPAA simply isn't thrilled with the options that do exist, with the attendant irony being that it has had a hand in the creation of these suddenly inadequate laws.

But Goodlatte goes further and blames those who pay for content for not paying enough, or often enough. Stupid consumers, Goodlatte says, why don't you just make everyone rich(er)? If you're not going to buy DVDs for $20-25 and CDs for $15-20, then the whole creative system will just collapse. At some point. In the future. Presumably.

Napster killed everything off in 1999, according to RIAA lawyers, and since then, it's been a real struggle to find music being made or movies being produced or books being written, said no one outside of the incumbent industries ever. The world is full of creative works, which are being generated at a pace faster than any time in history. Technological advances have made every computer a recording studio/production studio/publishing platform, and yet somehow "technology" is pointed out as the entity that destroyed creativity.

The MPAA wants you to believe that without its help -- and its lobbied-for IP laws -- no one would make movies. Microsoft wants you to believe that other countries are destroying its business, while it retains lucrative contracts with government agencies and controls the most widely-used software in the business world. Won't someone step up and give these poor souls a hand in their fight against third-rate countries with lousy IP laws and even worse extradition policies?

And up come BIden and Goodlatte's free hands, signaling their intent to browbeat the rest of the world into deploying the same crappy IP laws that gut the public domain, block affordable generic drugs and generally make it that much harder for our "second-rate" brethren get a leg up in the international economy.

Filed Under: bob goodlatte, copyright, infringement, joe biden, maximalist, secondary liability

Read This If You Want To Understand Just How Far The NSA Has Gone, And The Political Mess Behind It

from the must-read dept

I cannot say enough good things about Ryan Lizza's comprehensive article about the NSA's surveillance programs and the legal mess and political fights they've created. There's nothing particularly new in the article, but it does an astoundingly good job putting everything that we've learned into context. Even as someone who's been following all of this very closely, it was still a bit of a jumbled puzzle in my mind, but Lizza's piece took all of it and laid out the entire picture. It goes through all of the details of how and why the NSA began the program, its regular and repeated (often egregious) abuses, and the questionable legal defenses to protect the program. It goes into great detail on Senator Ron Wyden's long fight against these programs and in favor of civil liberties and the Constitution. It details how and why President Obama flip-flopped from his position as Senator and kept the programs, despite multiple opportunities to dump them. Even crazier, it discusses how a proposal Obama made as Senator might have stopped these programs years ago:

Even without a full picture of the programs, two senators who were not on the Intelligence Committee became intense critics of N.S.A. domestic surveillance: Barack Obama and Joe Biden. In May, 2006, after the USA Today article appeared, Biden said it was frightening to learn that the government was collecting telephone records. “I don’t have to listen to your phone calls to know what you’re doing,” he told CBS News. “If I know every single phone call you made, I’m able to determine every single person you talked to. I can get a pattern about your life that is very, very intrusive.”

Obama’s objections to domestic surveillance stretched back even further. In 2003, as a Senate candidate, he called the Patriot Act “shoddy and dangerous.” And at the 2004 Democratic Convention, in the speech that effectively launched his eventual campaign for President, he took aim at the “library records” provision of the law. “We worship an awesome God in the blue states, and we don’t like federal agents poking around our libraries in the red states,” he declared. In 2005, when he arrived in Washington, Obama became one of Wyden’s new allies in his attempts to reform the law. The Patriot Act was up for reauthorization, and, at Wyden’s urging, the Senate was trying to scale back the “library records” section. One of the first bills that Obama co-sponsored, the Security and Freedom Enhancement Act, would have required that the government present “specific and articulable facts” if it wanted a court order for records, a much higher standard than the existing one.

Obama and several other senators, including John Kerry, now the Secretary of State, and Chuck Hagel, the current Secretary of Defense, laid out their legal case against the provision in a letter to colleagues on December 14, 2005. The government could “obtain library, medical and gun records and other sensitive personal information under Section 215 of the Patriot Act on a mere showing that those records are relevant to an authorized intelligence investigation,” they wrote. It allowed “government fishing expeditions targeting innocent Americans. We believe the government should be required to convince a judge that the records they are seeking have some connection to a suspected terrorist or spy.” The following day, on the Senate floor, Obama said that the provision “seriously jeopardizes the rights of all Americans and the ideals America stands for.”

The Bush White House fought Obama’s changes, but offered a few minor concessions. Most notably, a business that received a demand for records could challenge in court a nondisclosure agreement that accompanied the demand. That was enough to placate some Democrats, including Obama. Wyden objected that the change did nothing to address Obama’s concerns, but the reauthorization of the Patriot Act passed the Senate on March 1, 2006. Wyden, eight other Democrats, and one Independent voted against it; Obama and Biden voted for it. Bush signed the law on March 9th.

Wyden later learned that, while he and Obama were fighting to curtail Section 215, the N.S.A.’s lawyers were secretly arguing before the FISA court that the provision should allow the N.S.A. to legally collect the phone records of all Americans. The lawyers, encouraged by their success in retroactively legalizing the Internet-metadata program, believed that they could persuade the FISA court to force phone companies to regularly hand over their entire databases. At the FISA court, there are no lawyers challenging the government’s arguments; all the N.S.A. needed to do was convince a single judge. Had Obama’s language been adopted, the N.S.A.’s case would have collapsed.

It's a long but fascinating article that you owe it to yourself to read, no matter where you stand on these issues. It paints the whole picture that hasn't been clear to many, and highlights just how dysfunctional the oversight has been of the NSA. And, if you weren't already impressed enough by Senator Wyden, the article presents even more reasons to be impressed by him (and depressed that there's only one of him).

On Twitter last week, after the Snowden leaks showing that, yes, as Wyden had been hinting all along, the NSA has been collecting location data on tons and tons of people, there was a great tweet by Kade Ellis, saying:

New rule: when Ron Wyden asks "NSA, do you do this spying?" HE ALREADY KNOWS THE ANSWER AND THE ANSWER IS ALWAYS YES

Unfortunately, as the article details, Wyden very rarely is even allowed to ask these questions, and the intelligence community stonewalls at every opportunity. Senator Dianne Feinstein, who should be managing oversight of the intelligence community appears to believe her job is rather to defend and support the intelligence community.

Still, the most disappointing aspects of the article really focus on how President Obama and his advisors, many of whom had spoken out against the Patriot Act and various aspects of the program now in place, suddenly changed positions once they were in power, and it was their power to abuse. The repeated stories of intelligence industry insiders coming up with the flimsiest of reasons why these programs must continue are plenty troubling. However, the fact that no one in the government seems to think that the American public can even be trusted with their basic reasoning and interpretations of the laws of the land is just ridiculous.

Either way, as stated, you owe it to yourself to find some time to read the whole thing -- but prepare to be outraged.

Filed Under: barack obama, dianne feinstein, eric holder, james clapper, joe biden, nsa, ron wyden, ryan lizza, surveillance

Joe Biden Tells Chinese Citizens To 'Challenge The Government,' Neglects To Mention His Administration Doesn't Like Being Challenged

from the no,-but-you-guys-should-totally-do-it dept

Vice President Joe Biden is in China and as usual, he took the opportunity to try to insert his foot in his mouth. China may be veering towards its own brand of capitalism simply because it's a manufacturing powerhouse, but it's still a long way from being an open country in any other respect.

Biden's pep talk to some Chinese citizens gathered at the US embassy included this "empowering" exhortation.

“Innovation can only occur when you can breathe free, challenge the government, challenge your teachers, challenge religious leaders.”

All well and good, I suppose. Of course, it's much easier said than done, and Biden's contribution only included the "saying" part. These sort of challenges have actual repercussions in China, which still wishes unruly citizens into high-walled political cornfields prisons.

But what's even more irritating about his blithe statement is the fact that his own administration isn't really keen on being challenged by its citizens.

Case in point: the NSA leaks. For a long time, the administration stood firm in its support of the agency. It only stepped back when it realized the situation was going to get a whole lot worse before it got any better and that the NSA itself wasn't just lying to the public, but to the president and the rest of the government as well. It also smelled blood in the water after amendments and bills targeting the NSA and its programs began gathering bipartisan support and wanted to be as far away from the massacre on the horizon.

This administration has also prosecuted more whistleblowers than all other administrations combined. This is what happens to people who challenge the administration. They end up broken by the system, the same system that tells them it wants to be "open" and "transparent."

The administration has also shown a fondness for shutting out inquiring minds with the overuse of state secret exceptions. Sure, information may want to be free, but its overseers won't let it roam without being covered in black ink. Its track record on civil liberties has eclipsed the awfulness of the Bush administration, which at least had the courtesy to be openly evil in its intentions.

Even the press has grown disillusioned with Obama's administration, recently complaining that it controls the narrative by handing out approved promo shots rather than allowing press photographers to do their jobs.

Now, I realize that as vice president, Biden doesn't truly represent the administration. He may be second-in-command, but the reality of the job demands someone who can stay out of the way while whipping up support for the administration's policies and pet legislation behind the scenes. It requires him to make appearances on behalf of the administration but kindly asks him not to embarrass it while doing so. Biden has failed to hold up his end of the bargain with his statements.

Here he hands Chinese citizens advice they can't possibly use while simultaneously highlighting the hypocrisy inherent in the administration's treatment of criticism. "Challenge your government," he tells people who can be ripped from their families for doing so before retreating to the safety of an administration that actively seeks out and punishes those who challenge its methods and actions. With this mindless bit of "go team!" posturing, Joe Biden is hurling stones from the balcony of the administration's glass house.

Filed Under: challenge, china, government, joe biden

Senator Biden Teaches President Obama A Lesson About NSA Spying From The Past

from the if-only-he'd-listen dept

The folks over at the EFF have put together a nice "debate" video, showing a clip of then-Senator Joe Biden angrily denouncing warrantless wiretapping by the NSA, spliced with President Obama defending the latest NSA surveillance leaks to show a "debate" between the two. I think Biden wins, hands down:

Filed Under: barack obama, joe biden, nsa, nsa surveillance, phone records, warrantless wiretapping

VP Joe Biden Believes There's 'No Legal Reason' The Government Can't Slap A Sin Tax On 'Violent Media'

from the brain-disengaged,-all-power-rerouted-to-mouth dept

I'm not sure where vice president Joe Biden is getting his information, but he seems rather confident that a tax can be levied against "violent media." He may want to check with the Supreme Court, which has ruled against regulating violent video games and found taxing certain varieties of speech differently to be a violation of the First Amendment.

Possibly Biden just got carried away with the jovial spirit of censorship pervading the post-Sandy Hook political climate. Or maybe he was just in an overly-agreeable mood and started making affirmative statements without considering what he was saying.

Or maybe he was just "playing to the crowd," which was entirely comprised of reps for various religious/community groups.

Those present for the Monday evening meeting included Franklin Graham, son of the evangelist Billy Graham and CEO of the Billy Graham Evangelistic Association, and Barrett Duke, the vice president of the Ethics & Religious Liberty Commission, the Southern Baptist Convention’s public policy arm.

The meeting also included Bruce Reed, Biden’s chief of staff, and Melissa Rogers, the director of the White House Office of Faith-Based and Neighborhood Partnerships, according to people who attended.

This is not to say that all members (or even all representatives) of religious communities are censorious or prone to pushing their subjective morality on others. There are several exceptions. Franklin Graham, however, isn't one of the exceptions.

Graham, two people in the meeting said, told Biden the government should consider taxing media companies that broadcast violent images and produce violent video games.

He floated the idea that media and entertainment that portray violence should be subject to a special tax, with the proceeds going to help victims and their families," said Rabbi Julie Schonfeld, the executive vice president of the Rabbinical Assembly.

Let's stop here for a moment and take a look at this proposal, possibly in the way that might befit a nation's Vice President.

First off, the idea is bad and Graham should feel bad. As was mentioned above, applying additional tax to certain forms of speech is a clear violation of free speech rights. The government would be applying this tax to whatever it arbitrarily deemed "violent" enough to qualify for the "sin tax." (This is really what this amounts to -- a tax on certain speech and, indirectly, certain consumer behavior.)

Secondly, the direct flow of tax revenue from "violent media" to "victims and their families" makes an implicit connection between the two principals. This links the two in the government's eyes and in the public's eyes. This also handily allows the government to dodge the fact that there is very little, if any, explicit connection between "violent media" and violence. In essence, this presumes guilt on violent media creators and punishes them for exceeding some arbitrarily acceptable "violence" threshold.

Then there's perhaps the most troubling aspect: who decides what amount of violence is non-taxable and where does that line get crossed? If it's a PG-13 film, does it go untaxed? Does any M-rated game immediately have the tax applied? Will game developers and filmmakers explore other paths, like explicit sexuality, simply because violence gets taxed and sex doesn't? Or will they, more likely, adapt to the new chilling effect and produce stunted, sanitized output?

There are other questions to consider as well. With the consumers footing the bill for violent movies and games, will this price hike affect purchases by attaching some sort of stigma to the products themselves? Would the government label these items with something like: "2% of this purchase goes to victims of violence," thus making consumers feel complicit in violent criminal activity simply by purchasing the media?

[Bonus: will the MPAA be involved? It is one of Biden's buddies and its rating system is built on one of the most bizarrely abitrary set of 'standards' in the entertainment industry.]

These are just a few aspects that should be considered before anyone even brings the subject up, much less offers Vice Presidential-backing for the idea. But Biden seems almost charmingly naive in his response:

Biden told Graham that there was “no restriction on the ability to do that, there’s no legal reason why they couldn’t” tax violent images, Clark added.

I'm guessing at this point someone has gotten word to Biden that there's actually at least one legal reason the government can't tax "violent images," because there has been no further word from either proponent of this terrible idea.

Graham’s representatives did not respond to requests for comment. Biden’s office also did not respond to requests to comment about the meeting.

Maybe Biden felt this conversation would never leave the room and therefore felt comfortable making ridiculous claims. He certainly appears to have tried to chill a little free speech himself.

Five people who attended the 2½-hour meeting told POLITICO that Biden made a specific plea to those present to keep his words off the record from reporters.

“He basically just said in general that these stakeholder meetings that if you put words into the vice president’s mouth it sometimes comes out wrong and gets misquoted,” said Shantha Alonso, the director of the poverty program at the National Council of Churches.

Well, that's a nice out to have. I guess we'll see if the "I was misquoted/comment was off the record" excuse gets run up the flagpole sometime soon. If it doesn't, we might be safe in assuming that, no matter what conclusions the CDC reaches in its study of violence and violent media, Biden and like-minded supporters will be moving forward with their reinterpretations of the First Amendment.

(h/t to Techdirt reader Colin for sending this our way. Not sure which Colin it is as multiple Colins come up in the search, but he knows who he is and can certainly take credit for the tip in the comment section.)

Filed Under: censorship, first amendment, joe biden, taxes, video games, violence, violent media, violent video games

Kim Dotcom Files Brief In His Trial In The Court Of Public Opinion

from the laying-out-the-arguments dept

A bunch of folks have been pointing us to the new "whitepaper" released by Kim Dotcom, which lays out two key things: why the lawsuit against him is a complete legal sham and also why it was driven by a corrupt connection between the US government and the MPAA. The paper is written by his lawyers, including Ira Rothken and Richard Amsterdam (whose addition to his legal team was discussed a few months ago). Frankly, most of this reads like the lawyers refining the eventual motion-to-dismiss filing that they expect to submit to the federal court (should it ever get there). The majority of it is taken up with the clear legal statements as to why the lawsuit is based on very questionable theories. The main point, as we've discussed before in the context of other cases, is that the DOJ seems to have completely made up a legal theory of contributory copyright inducement. While there is such a thing in civil contexts, it's not there in criminal contexts. Supporters of the DOJ will argue that there is aiding and abetting, but the rules there are quite different and, again, it doesn't look like Dotcom and crew would be guilty of such a charge.

The overall point is clearly stated in the whitepaper. Here's a snippet:

The fact of the matter is that the notion of criminal liability for secondary copyright infringement does not exist in U.S. law. The attempt by prosecutors to expand criminal liability for secondary infringement by couching it as “aiding and abetting” or “conspiracy” goes against established precedent in case law and repeated positions taken by the U.S. Congress.

The Copyright Act creates civil and criminal liability for various acts of copyright infringement, but it does not expressly give rise to liability for infringement committed by third parties. Furthermore, the U.S. Supreme Court has defined specific circumstances under which service providers may be held civilly liable (i.e., not criminally responsible) for direct copyright infringement by third parties, such as distributing “a device with the object of promoting its use to infringe copyright.”

The fundamental legal problem with this aspect of the government’s case is that only Congress can create new criminal liability; judges cannot. Previous instances in which courts have imposed civil liability for secondary copyright infringement – based on application of common law principles – do not apply in criminal proceedings, as federal crimes are “solely creatures of statute.” Whatever authority the courts may have had to recognize a contributory theory of copyright liability in the civil context, the courts simply have no power to impose a basis for criminal liability beyond what is expressly authorized by statute.

One surprising inclusion is that the whitepaper supports this well known point -- that courts can't create new criminal liability -- by extensively quoting legal analysis from Jay Prabhu from years ago. This is a bit of dagger twisting by Dotcom's legal team. Prabhu, well after writing those analysis, took a job in the Justice Department, and eventually was put in charge of the DOJ's "cybercrime" unit -- and has been a key prosecutor against a number of copyright cases, including various domain seizures. In fact, he's the one who signed the indictment against Dotcom. To use his own words against the case is amusing.

The filing also lays out a number of arguments that we've seen before, including a further explanation of how the DOJ was being totally disingenuous in arguing that Megaupload refused to remove works it knew were infringing, by pointing out the files they mentioned were ones that Megaupload has clearly been asked to preserve as part of an investigation into copyright infringement.

There's also an interesting and more detailed than previous discussed defense on the point about Megaupload's rewards program. We had pointed out how silly it was to use this element against Megaupload, since it was a general rewards program to get people to make use of its cloud storage, and there was nothing in the program that induced more infringement (in fact, it seemed like a great tool for a content creator to make money by releasing his or her own works via the rewards program). On this, Dotcom's whitepaper points out not just those points, but also (1) the fact that lots of other sites have similar rewards programs (2) specific features Megaupload included in its rewards program that made it bad for infringement (including file size limits and required identification) and (3) the fact that they had dropped the program long before the indictment.

While I do wonder how wise it is to basically give the DOJ their opening brief way before they would actually see it in court -- and giving them a lot more time to respond to it -- there are a few reasons why this move could make sense. First, they're so damn confident in their argument that it doesn't really matter. That may be risky. Another point may be that it signals to the DOJ that they may want to look for ways to extricate itself from the case quickly, because it's not going to go as easy as the DOJ has assumed from the beginning. The other issue may be that Dotcom and his legal team realized long ago that the court of public opinion probably matters more in the long run than the federal court system in the US.

To that end, of course, the paper has a second section, which has received most of the attention: all about the supposed corrupt process that brought about the indictment. When Megaupload hired Richard Amsterdam, he specifically noted that the details of the case suggested a typical "contract prosecution," and the paper seeks to lay out that argument clearly, highlighting the close relationship between the Obama Administration (mainly via VP Joe Biden) and MPAA boss Chris Dodd.

Chris Dodd’s jump from the U.S. Senate into the cockpit of the MPAA was an equivalent move. As the new Chairman and CEO of the MPAA, Chris Dodd improperly leveraged his friendship with Joe Biden to achieve the MPAA’s objectives. Former Senator Dodd’s relationship with the Vice President– who comes off manipulated, a cheerfully credulous facilitator – together with the Obama Administration’s ravenous hunger for campaign contributions, has given the MPAA absolute control over how the U.S. Department of Justice plays the game in enforcing copyright law. This capture is nowhere more clearly demonstrated than in the Megaupload/Kim Dotcom prosecution.

Frankly, while this section is getting the most attention, I actually find it to be the weakest and most poorly supported part of the paper, which would probably be more compelling without it. I don't doubt that the close connections between the MPAA and various folks in the DOJ and in the VP's office contributed to Megaupload being a target, but trying to make it out as anything more than that seems like a stretch. Yes, the MPAA complained regularly about Megaupload, and that clearly helped put a target on its back. But, it's quite likely that the over-eager folks at the DOJ ran with this one on their own. The MPAA (with the help of the press) had worked over time to paint Kim Dotcom as "Dr. Evil" of the copyright world. Everything about the process of taking down Megaupload screams of a bunch of feds who totally bought into the theatrical version of the MPAA's vision, without much effort to understand what was really happening. The myriad mistakes and sloppiness in the case really suggest that the DOJ assumed that the stories the MPAA told were so accurate that everything about this case would be a layup. The investigation, the indictment, the raid, the handling of evidence -- all of it was done in a sloppy way -- as if they expected no one would challenge any of it.

I'm sure there was influence and pressure that went into this, but painting it as a case where Chris Dodd called up Joe Biden and said, "Destroy Megaupload" is probably a massive exaggeration. Instead, it seems quite likely that MPAA folks just kept playing up the theatrical version of Kim Dotcom as evil (and, Dotcom himself actually helped promote this sort of view of himself at times as well...), and then the DOJ's imagination combined with its general over-aggressive nature towards any copyright issues just sort of took over from there.

Either way, the paper is definitely a worthwhile read. I'm sure a group of folks at the DOJ are taking their time reading through it quite carefully. I imagine that we'll eventually see their response in court.

Filed Under: chris dodd, copyright, corruption, criminal contributory infringement, indictment, ira rothken, joe biden, kim dotcom, richard amsterdam, whitepaper
Companies: megaupload

Biden Takes Part In MPAA Board Meeting; Suggests Studios Tell Paying Customers They're Thieves

from the that'll-teach-them dept

For all their talk about piracy and yearly losses measured in billions, the big movie studios sure do seem to enjoy smacking their paying customers around with anti-piracy warnings and ads. Consider the poor sucker who actually went out and paid cash money for the latest shiny disc and now has to watch a multitude of eagle-laden logos and horrible analogies parade unskippably across his or her screen before finally being allowed to watch the unskippable trailers before finally being allowed to watch 15 seconds of unskippable animation before they can actually watch the movie they're now regretting having shelled out actual retail price for.

Now, 20th Century Fox has found a new way to pack up paying viewers for another guilt trip, all expenses paid (by the viewer.) If the viewers failed to pick up on any of the front-loaded anti-piracy "education," they're now being graced with a reminder of the "true cost of piracy" right as they exit the theater.

It's hard for Hollywood to explain to consumers about the losses to the movie industry caused by piracy. Especially when talking heads like studio moguls and government officials try and fail. So kudos to Ted Gagliano, president of 20th Century Fox feature post-production, who began putting end cards on the studio's movies like this one.

I agree. It is hard to explain to consumers about these losses, especially when so many highly successful movies have failed to turn a profit. It's also hard to explain things using imaginative interpretations of severely extrapolated data that turns the kid bagging your groceries into the equivalent of an executive producer.

This bit of information could conceivably deter a few people from rushing right home and onto the internetz for the "home version." When they see that many people worked many hours, the few not shouting "Citation, needed!" will sleep the sleep of angels, knowing their full retail price ticket purchases will keep the grocery bagger off the street at least one day longer. Their sleep will be even more angelic when they realize who's behind this new idea.

Twentieth Century Fox Film Chairman/CEO Jim Gianopulos tells me that the end card anti-piracy project was suggested by the Obama administration. "It was actually an idea of Vice President Biden's when we visited him during a MPAA Board meeting earlier this year. We thought it was an excellent suggestion and adopted the idea and will continue for all movies going forward."

Yes. An elected official in the second most powerful position in the world took time out of his busy schedule to help out some buddies of his who looked like they could use a hand: the always-right-on-death's-doorstep movie industry. And the fact that Joe Biden sits in on MPAA board meetings should concern no one in the slightest, especially when it comes time to discuss things that affect the movie industry -- like free trade agreements that value draconian IP protection over all else.

There's not much real estate left for anti-piracy infotainment. The front end has had it for years. This takes care of the back. Maybe they'll start popping up factoids and warnings at the bottom of the screen during the actual running time, making the movie-going experience indistinguishable from a night in front of broadcast television. Or maybe they're just waiting for the President himself to suggest that one. Perhaps at the next MPAA board meeting.

Filed Under: end cards, joe biden, movie industry
Companies: mpaa

To Pols Trying To Raise Money From Silicon Valley: Supporting SOPA/PIPA Probably Isn't Wise

from the well,-look-at-that dept

A brief, little report from Politico notes that various Democrats are ramping up their efforts to raise money from Silicon Valley for the 2012 election. What struck me as interesting was the first two names on the list:

As the election season is ramping up, so too are pols� trips to Silicon Valley. That includes Vice President Joe Biden, who�s heading to San Francisco on Jan. 18 for a lunch reception. Tickets cost $2,500 per person, with $7,500 for lunch and a photo for two. Sen. Robert Menendez will also be in the area on the same day, starting with a dinner in Menlo Park, Calif., followed by a breakfast in San Francisco.

Biden, of course, has been the leading voice in the administration for worse and worse copyright enforcement efforts, and almost certainly supports SOPA/PIPA. Sen. Menendez is a PIPA co-sponsor. Given how widespread the outrage in the tech community is against these bills, it seems like an odd choice for them to try to raise money while supporting legislation that will make innovation in tech a lot harder...

Filed Under: democrats, fundraising, joe biden, pipa, robert menendez, senators, silicon valley, sopa