MPAA: To Save Free Speech, We Must Broadly Censor Free Speech

from the say-again? dept

Earlier this year, we wrote about a thought-provoking article by Zeynep Tufecki discussing how some people were deliberately trying to use the open "marketplace of ideas" to effectively attempt to poison the marketplace of ideas. Also mentioned in that article was an excellent Yale Journal Article called Real Talk About Fake News by Nabiha Syed, which raised similar issues, and wondered if we needed a new framework for thinking about free speech online. We later had Syed on our podcast to discuss this further. Both Tufecki and Syed were raising important, thought-provoking issues that were not at all like the usual attacks on free speech -- because neither was an attack on free speech. Instead, they were attempting to protect free speech by pointing out that the way we often frame these discussions may not be the most effective way of thinking about these issues -- and that might actually lead to the silencing of voices.

This has certainly spurred many more thoughtful discussions on these topics. But... it won't surprise you that some are now looking to exploit this open discussion in their own way. The MPAA recently filed some comments with the NTIA, and what's striking about them, is how they appear to be co-opting the language of Tufecki to attack free speech online, and push for legal changes that would lead to massive censorship. But, in doing so, they claim these changes are necessary to "protect" free speech. The MPAA's VP Neil Fried also put out a somewhat snarky blog post about the filing, in which the MPAA insists that CDA 230 and DMCA 512 must be changed because "the status quo does not seem to be working."

Is that so? CDA 230 became law in 1996. DMCA in 1998. Let's take a look at how movie box office revenue has been over the years since (2018 numbers are projected based on tickets so far):

I don't know, Neil, but it sure looks like Hollywood is doing just fine under these conditions. But, the MPAA has basically invested so much of its identity into the idea that infringement is an existential threat, that it has to keep going with it. Remember, this is the same organization that insisted the VCR was going to be "the Boston Strangler" to the movie industry -- and that was said in Congressional testimony just four years before home video revenue surpassed box office revenue. So, the MPAA does not exactly have a credible track record on claiming that the threat of piracy is a real problem for the industry. But, it just can't let things go.

So now it's trying again with this comment to NTIA. And I find it notable that it appears to be trying to co-opt the framing that Tufecki used in order to argue for a regime that would stamp out free speech online:

Responsible businesses refusing to facilitate such activity are not squelching speech. They are not stifling speakers wishing to communicate ideas, but thwarting culprits engaged in malfeasance. In fact, curbing such illicit activity promotes free expression by creating a safer, virtual forum where individuals feel comfortable to engage and communicate. In this sense, it is leaving lawlessness and bullying unchecked that is chilling free speech.

But, of course, a large part of the problem is that the MPAA's entire framing here is simply incorrect. It claims that platforms have no incentive to clean themselves up -- which is laughable when you consider just how far various internet companies have bent over backwards to try to appease everyone complaining about the crap on their platforms.

Many of the platforms are not living up to that bargain, shielded behind the broadly interpreted limits on liability that ensure few if any consequences, and failing to apply the same innovation to address internet harms that they do to other areas of their business.

This statement has zero basis in reality. Of course all of the major internet platforms regularly moderate content, and these days are under tremendous public pressure from basically all sides, to "do something" about content deemed dangerous. In fact, the worries about over-censorship from this kind of pressure and motivation is already well documented. Hilariously, the MPAA pretends that the platforms don't have much incentive to do anything -- which ignores all of the pressure from their own users, the media, politicians and more.

Bizarrely, later in the filing, the MPAA admits that platforms are, in fact, moderating content heavily (something that it spends pages insisting isn't happening). Yet, when it does so, the reasoning is equally perplexing:

The rebuttal is often that there is a risk that efforts to combat illicit conduct online will be overbroad, and inadvertently chill speech. But the platforms appear increasingly willing to curb things like hate speech. As odious as such speech is, it is quintessentially expressive. Efforts to combat it are fraught with challenges of under- and over-inclusiveness. Such activity is more susceptible to a chilling speech argument than attempts to curtail clearly illicit conduct, which present a brighter line.

So... let's get this straight. The platforms have no incentive to get rid of illegal content on their platforms -- even though all of them do so. And, to prove that there's no problem with overbroad censorship, we'll point to the fact that they do the kind of moderation we previously said they don't... and then admit that that moderation itself is chilling speech. Incredible.

The MPAA seems so wedded to its desire to take away the DMCA safe harbor and the CDA immunity provisions that it really doesn't care that no mainstream platform is eagerly courting "illegal" content. But, in order to undermine the open internet, and push for one in which all things must be licensed, it has to keep up the charade that platforms encourage illegal behavior and refuse to deal with it. And it's adopting the language of those who were trying to have a more serious conversation about dealing with bad actors online. It's the ultimate troll move.

Filed Under: bad behavior, cda 230, censorship, dmca, dmca 512, free speech, incentives, intermediary liability, marketplace of ideas
Companies: mpaa

Dear Tech Guys: HBO's Silicon Valley Is NOT An Instruction Manual

from the it's-a-lesson-in-what-not-to-do dept

I've been living in Silicon Valley for just about twenty years at this point, and lived through the original dot com bubble (got the t-shirt, etc.). And there are a few small signs that remind me quite a bit of the "bad stuff" that started to show up in the 1999/2000 time frame, just before everything collapsed. One of the biggest issues: the carpetbaggers. Basically, as things get frothier and frothier, a "different" kind of entrepreneur starts to show up. In the original dot com bubble, these were frequently described as "MBA's" -- but as someone with an MBA degree, I find that to be a bit misleading too. There were plenty of good, smart, tech-savvy MBAs who added value to the innovation community. The real problem was the people who came to (a) get rich and (b) party (not always in that order). Getting rich and having a good time aren't necessarily bad things, but if they're what you're focused on, then bad things tend to result.

Lots of people like to mock the whole mantra of "we're changing the world" in Silicon Valley, and sometimes it deserves to be mocked. But... in many cases, there is actual truth to it. And, in many cases, there are entrepreneurs and innovators who really are trying to change the world and make it a better place. The problem is that you have the other element -- the carpetbaggers -- who show up with no actual interest in innovation or in making the world a better place, but who readily adopt the terminology and slogans of those who do. And, these days, we're seeing more and more of those types of people in the Valley. It's been happening for years, but it's been getting worse and worse lately. It's why people talk about "Techbros" with dumb, but flashy, company ideas, while ignoring entrepreneurs working away at truly world-changing products and services.

I've been thinking more and more about this lately, especially as a whole bunch of stories have come out in the tech world (as in so many other industries) about sexual harassment and sexual assault. And, as in so many industries, this has been an issue for a long time around here -- and often not taken seriously. Earlier this year -- before many of the bigger stories came out -- I wrote about why Silicon Valley needs to get its act together and grow the fuck up. But with many of the revelations coming out, showing how widespread the culture of harassment (and assault) has been, it's a much bigger problem.

That's why this story from Bloomberg is so flabbergasting. Even after all of this, to hear that some tech companies are hiring good looking models to attend their holiday parties is just so... dumb.

Local modeling agencies, which work with Facebook- and Google-size companies as well as much smaller businesses and the occasional wealthy individual, say a record number of tech companies are quietly paying $50 to $200 an hour for each model hired solely to chat up attendees. For a typical party, scheduled for the weekend of Dec. 8, Cre8 Agency LLC is sending 25 women and 5 men, all good-looking, to hang out with “pretty much all men” who work for a large gaming company in San Francisco, says Cre8 President Farnaz Kermaani. The company, which she wouldn’t name, has handpicked the models based on photos, made them sign nondisclosure agreements, and given them names of employees to pretend they’re friends with, in case anyone asks why he’s never seen them around the foosball table.

To be honest, the story is so dumb, and no companies are actually named, that I'm wondering how much of this story is actually planted by the modeling companies hoping to make it reality. But... these days, we're hearing about so much bad behavior that it may very well be happening.

And I saw more than a few people commenting on Twitter that this seemed like something straight out of HBO's Silicon Valley. Which leads me into another thought that I've been toying with recently. Last time I was in Washington DC, some friends based there were asking me what I thought of the show, and I said that for all of its famed "accuracy," I thought it was ruining the actual Silicon Valley. My friends suggested this was ridiculous, since the show clearly made most of the protagonists out to be fairly buffoon-like, and worthy of mockery. But... without other guidance, it really feels like many people are arriving in Silicon Valley with the HBO show as their mental model of how things are supposed to be. And, even if the show is "truthy" in how it portrays certain people/activities, it does so for the sake of entertainment. Thus, it only presents the really exaggerated versions, and creates entertaining caricatures of certain types of people, while leaving out the many, many, other people who actually get real shit done here, without being buffoons or assholes.

People out here, for the most part, still love the show, because they recognize elements of reality within those characters and events -- but it misses out on the nitty-gritty of how stuff gets done and the fact that some people are legitimately doing good stuff without being horrible people. But if everyone now coming into Silicon Valley is coming in with HBO's Silicon Valley as their model -- too many are looking at the show as an instruction manual, rather than a giant warning sign of what not to do. In some ways, it reminds me of the classic 90's indie film Swingers with Jon Favreau and Vince Vaughn. When it came out, I remember lots of guys trying to "take lessons" from the movie in how to pick up women, even though the entire point of the movie was to make fun of those people with their tricks and rules and games.

Assuming that story of hiring models for parties really is true, it feels like yet another brick in this problematic wall of "techbro" culture taking over from what has always been the true core of Silicon Valley, involving non-assholes who really are changing the world. It would be great if we could get more of that, and less of the HBO version, no matter how entertaining it might be.

Filed Under: bad behavior, change the world, sexual assault, sexual harassment, silicon valley

DEA Agents Caught Soliciting Prostitutes Rewarded With Light Punishments, Bonus Checks

from the saving-throw-on-'integrity-check'-fails dept

At the end of September, Brad Heath and Meghan Hoyer of USA Today published a DEA disciplinary log they'd obtained through an FOIA request. The document was obviously misnamed, as it showed plenty of misconduct by DEA agents, but not much in the way of discipline.

Damning, yes, but apparently we still haven't scraped the bottom of the DEA's disciplinary barrel. The DOJ's Inspector General, Michael Horowitz, has released a new report on DEA misconduct -- specifically dealing with the DEA agents who were caught soliciting prostitutes, engaging in "sex parties" and harassing local employees while working overseas.

None of the 14 agents involved lost their job. Two still remain at their overseas posts and the rest (with the exception of one retiree) are still working as agents or supervisory agents. Apparently, DEA misconduct pays pretty well. (h/t PoliceMisconduct.net)

Although none of the 14 individuals received promotions, we found that in 10 instances, 8 employees received bonuses, awards, or other favorable personnel actions, contrary to DEA policy.

The agency's policy states that agents under investigation are not entitled to collect bonuses for three years after being disciplined for "serious misconduct." Any agent seeking advancement/bonuses must be subjected to an "integrity check" by the DEA's HR department to ensure they are not currently under investigation or subject to other disciplinary actions. If the agent fails to clear the "integrity check," the information is passed on to the Chief Inspector, who has the power to override the three-year waiting period.

Exceptions were made. But the Inspector General's office is damned if it can figure out why.

The eight employees who received awards were subjects in an ongoing OPR investigation in which the offenses involved integrity and/or sexual harassment issues, with some of the employees serving as supervisors and managers. In many instances, we could not determine the reason why exceptions were made and we were unable to determine when, or if, an integrity check was performed, the results of the integrity check, or the reason for the approval of the proposed personnel action, because the DEA was unable to provide the OIG with complete documentation.

IG Horowitz is very familiar with the DEA's reluctance to provide documentation. He took his battle with the DEA and FBI over the release of pertinent information to Congress, sailing over the head of the DOJ. In a letter to a Congressional committee, Horowitz threatened these agencies' budgets by pointing out to legislators that the DOJ components are not allowed to use their funding to thwart their oversight.

But the DEA may have a not-very-legitimate excuse for not handing over documents. It apparently doesn't care much for recordkeeping, even when it involves a regional supervisor who "failed" to report his underlings' hiring of prostitutes and brothel patronage.

The DEA also told us that it was unable to provide us with any documents that reflect when the counseling session occurred with the Regional Director, the DEA Administrator, and the Deputy Administrator, or what matters they discussed. Given the gravity of the allegations, and the importance of keeping records related to misconduct reviews, we are concerned that the DEA was unable to provide any written documentation confirming that the counseling occurred and the substance of the counseling.

This official -- who was apparently given an undocumented tongue-lashing -- landed a $12,000 bonus. This was his reward for covering up the misconduct of his agents.

A Supervisory Special Agent who did nothing to prevent "sex parties" with prostitutes from occurring at DEA offices (arranged by local law enforcement officials) was given three bonuses totalling $8,500 -- all while still under investigation.


In the private sector, soliciting prostitutes while on the clock is a good way to get yourself fired. In the DEA, where integrity is a must -- considering the constant temptation of money and drugs -- it's barely worth a two-week suspension. Most agents saw single-digit suspensions, while others only received "letters of caution." And a regional director overseeing all of this received nothing but an alleged, completely undocumented verbal rebuke. At the DEA, the only thing better than the lack of serious discipline is the bonus checks agents receive while still under investigation.

Filed Under: bad behavior, dea, punishment

WTF ATF: The ATF's Fake Retail Stores, Bad Behavior... And Why It Only Came Out Because They Failed To Pay Rent

from the wtf-indeed dept

This past week, on This American Life, the first 20 minutes or so are the incredible story of just how screwed up the ATF continues to be (the Bureau of Alcohol, Tobacco and Firearms). Much of this has been reported on over the past year and a half by reporters in Milwaukee (and investigated by Congress), but it's absolutely worth listening to the details -- which you can do over on the This American Life page (I'd post the embed here, but unfortunately This American Life does not yet appear to support HTTPS, so we can't). The story is all kinds of stunning, including the insane fact that most of the details came out, and the reporters only began their investigation, because some undercover ATF agents in Milwaukee had trashed the property they were renting, and refused to pay the rent or damages to the landlord -- even threatening the landlord, claiming he was harassing federal agents by asking for the rent:

John Diedrich: I get a call. And it was from a landlord, a guy named Dave Salkin. And Dave Salkin owns this place that he, unbeknownst to him, rented to the ATF. Didn't know who they were, they were undercover agents. And they had trashed his place, and they were behind on rent. They had threatened him. And I said, where are you, I'm coming right now.

Ira Glass: While they were undercover, agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives basically ripped up his place. Salkin said at the time that they owed $15,000 in damages and back rent. Later he said it was more. When he tried to collect, they didn't pay up. In fact, an ATF lawyer warned him that if he kept asking for the money, it could be seen as harassing federal agents.

The other thing that becomes clear in all of this is that these "undercover" ATF agents aren't just sloppy and stupid, they seem to go out of their way to be ineffective and dangerous.

Ira Glass: And they were robbed. These agents whose job it was to get guns out of the hands of criminals had three guns that were stolen out of an agent's car while he was parked at a coffee shop. These included a fully automatic rifle. This is a machine gun, the kind that normally only law enforcement and military can legally have.

Not long after that, the store itself was burglarized of $39,000 in clothes, jewelry, and merch, reportedly, because the ATF had not bothered to do much to secure the store and just did not seem to care. Nobody was minding the store, literally.

John Diedrich: The ATF had no working burglar alarm on their building. So it was sort of, instead of a smash and grab, it was just this sort of like slow burglary. The neighbors report at one point, once they were able to get in-- again, no burglar alarm-- they kept the door propped open with a shoe. And they were just kind of taking stuff out.

And the word sort of spread. Hey, this place is just open. Nobody's there. We can just go get stuff. And at one point they just pulled up a U-Haul. And they were just sort of emptying this. And this is over several days. And then even--

Ira Glass: Renting a U-Haul is such a crazy move, because is it means that somebody had to go and decide, I'm going to rent a truck. That's how slow this burglary is, that you can do a rental.

John Diedrich: Yeah, exactly. And there's no sort of concern that you're going to be busted at that point, and just say, OK, I can only carry so much in my arms. Let's get something bigger. Let's get a U-Haul.

Ira Glass: The same day the burglary was reported, an ATF ballistic shield, the kind that they would use to raid a house or something, was turned in by a scrapper at a Milwaukee police station. One item that was just left lying around in the store after the robbery for anybody to pick up and read-- it was there when reporter John Diedrich walked through-- was a secret ATF document listing the names of undercover agents, their undercover vehicles from several law enforcement agencies in Milwaukee.

There's a lot more like this. Including potential copyright infringement:

Ira Glass: And they distributed flyers with the store's logo, which was a skull with angel wings made from assault rifles and knives with the words Buy, Sell, Trade, wink, wink. Federal agents actually ripped off the logo from the Sylvester Stallone film, The Expendables, possibly in violation of their copyright.

The story details just how incredibly counterproductive all these efforts were. Since they were paying super high prices for guns, people would suddenly start stealing guns just because the ATF was making them so valuable. And, despite the ATF pretending otherwise, the case in Milwaukee was hardly a one-off situation.

Raquel Rutledge: And as we started looking, really, truly, we came back to one other-- you're not going to believe this. I mean, we were shocked. I don't think we expected to find this going on. Absolutely not, did we expect to find that it would go on elsewhere, because you can't imagine this would be part of a playbook or an MO of a federal agency. So it was stunning to find. Had they been burglarized? Did they trash the landlord's place?

We found in Portland the lady just said, I am so glad you called. She said, I have not known what to do. She said, they left my place in shambles. She had photos of what they left it like-- I mean, like a college fraternity or something. Just trash everywhere, they tore out some walls and they rewired some stuff and caused a leaky roof. She estimates her damages were probably $20,000 roughly, $20,000, $25,000. So that, you think, how does that happen? Is that, again, part of the playbook?

Ira Glass: Raquel and John looked into ATF storefronts in Wichita, Portland, Oregon, Pensacola, Albuquerque, Atlanta, and Phoenix. Some of the Milwaukee problems they found examples of in those other cities? Agents paying extra high prices for guns, buying stolen goods, criminals committing burglaries in the neighborhoods around the stores and then selling the stuff to the ATF. Raquel and John say that the quality of the convictions from these operations around the country, the kinds of people that the ATF was catching were mostly small fry, just like in Milwaukee. The ATF store in Pensacola was robbed just like the Milwaukee store was, twice.

There's a lot more in the story -- and it's totally worth listening to. But the most fascinating point of all may be the one right up front in the story, and then reinforced at the end. None of this likely would have come out if it were not for the unpaid rent.

It wasn't the squid tattoos or the low-IQ employees or getting robbed over and over. It wasn't the way they caught and charged suspects. It was that landlord in Milwaukee. If they hadn't trashed his place, or if they had just paid him promptly to repair it instead of fighting him over every penny, apparently, he wouldn't have called the newspaper. John and Raquel say the whole thing might never have come to light.

The whole effort has resulted in some attempts to actually disband the entire ATF, which might not be such a bad idea. While we hadn't been following the agency that closely (and hadn't been aware of all of these fake storefronts and the crazy stories behind them), in the past we've reported on how the ATF made up an entire robbery plot in order to entrap a group of poor young men in a "crime" that wouldn't have existed, but for the ATF's fantasy.

It would be nice to trust law enforcement officials, but they keep giving us reasons not to trust them at all.

Filed Under: atf, bad behavior, guns, retail stores