If you read Techdirt, you already know that there have been literally dozens of ridiculous Section 230 reform bills introduced over the last few years. On Wednesday, the House Republicans on the Energy & Commerce Committee decided to not just add to the batch, but to flood the entire zone with a package of thirty-two more Section 230 reform bills. I mean, if you're going to go that far, why not go all the way and write 230 reform bills?
I'm not going to go through every bill. That would be a total waste of everyone's time. These bills are not designed to do anything constructive at all. They are not designed to pass. They are not designed to reform Section 230. They are designed for one reason and one reason only: to act as performative grandstanding for a deliberately ignorant base who are kept in ignorance by politicians pushing bills like this nonsense.
What I will note, however, is how many of the bills in this package clearly contradict one another (and just how many are obviously unconstitutional under the 1st Amendment in that they seek to regulate speech). In some ways, the package of 32 bills shows why all this focus on Section 230 is nonsense in the first place, and the difficulties of content moderation itself. For example, you have the "Preserving Constitutionally Protected Speech" bill from Reps. Cathy McMorris Rodgers and Jim Jordan. That one would punish websites that remove constitutionally protected speech (which is an unconstitutional attack on those websites' 1st Amendment rights). But, uh, then you have things like bills to require companies to remove cyberbullying and remove doxxing (among a few other things).
Of course, neither cyberbullying nor doxxing are well defined in those bills, but in both cases the speech described is almost certainly protected under the 1st Amendment. So you have some bills saying removing any speech that is protected by the 1st Amendment should lead to punishment, and other bills that say you are required to remove speech that is protected by the 1st Amendment or face massive penalties. Did no one bother to actually look at this collection of bills and realize they don't work together?
There are also a bunch of bills that seem to restate what the law already is. For example, there's one requiring companies to remove child sexual abuse material (though the bill uses the now disfavored term "child porn.") Except, um, that's already the case. Saying it with emphasis in a new law doesn't change that.
Anyway, I'm hard pressed to find anything even remotely sounding like a reasonable idea in all of these bills, but to be fair, I didn't have time to go through all 32 bills in full. Perhaps they can pass a bill to force someone to content moderate these 32 bills to algorithmically show me which ones actually have reasonable ideas, and which ones are just performative nonsense. I fear that the final tally will show that all 32 bills are performative nonsense.
We've pointed out a few times how silly all these Congressional panels on content moderation are, but the one happening today is particularly silly. One of the problems, of course, is that while everyone seems to be mad about Section 230, they seem to be mad about it for opposite reasons, with Republicans wanting the companies to moderate less, and Democrats wanting the companies to moderate more. That's only one of many reasons why today's hearing, like those in the past, are so pointless. They tend to bog down in silly "but what about this particular moderation decision" which will then be presented in a misleading or out of context fashion, allowing the elected official to grandstand about how they "held big tech's feet to the fire" or some such nonsense.
However, Cat Zakrzewski, over at the Washington Post has highlighted yet another reason why this particular "investigation" into disinformation online is so disingenuous: a bunch of the Republicans on the panel, exploring how these sites deal with mis- and disinformation -- are guilty of spreading disinformation themselves online.
A Washington Post analysis found that seven Republican members of the House Energy and Commerce Committee who are scheduled to grill the chief executives of Facebook, Google and Twitter about election misinformation on Thursday sent tweets that advanced baseless narratives of election fraud, or otherwise supported former president Donald Trump’s efforts to challenge the results of the presidential election. They were among 15 of the 26 Republican members of the committee who voted to overturn President Biden’s election victory.
Three Republican members of the committee, Reps. Markwayne Mullin (Okla.), Billy Long (Mo.) and Earl L. “Buddy” Carter (Ga.), tweeted or retweeted posts with the phrase “Stop the Steal” in the chaotic aftermath of the 2020 presidential election. Stop the Steal was an online movement that researchers studying disinformation say led to the violence that overtook the U.S. Capitol on Jan. 6.
Cool cool.
Actually, this highlights one of the many reasons why we should be concerned about all of these efforts to force these companies into a particular path for dealing with disinformation online. Because once we head down the regulatory route, we're going to reach a point in which the government is, in some form, determining what is okay and what is not okay online. And do we really want elected officials, who themselves were spreading disinformation and even voted to overturn the results of the last Presidential election, to be determining what is acceptable and what is not for social media companies to host?
As the article itself notes, rather than have a serious conversation about disinformation online and what to do about it, this is just going to be yet another culture war. Republicans are going to push demands to have these websites stop removing their own efforts at disinformation, and Democrats are going to push the websites to be more aggressive in removing information (often without concern for the consequences of such demands -- which often lead to the over-suppression of speech).
One thing I think we can be sure of is that Rep. Frank Pallone, who is heading the committee for today's hearing is being laughably naïve if he actually believes this:
Rep. Frank Pallone Jr. (N.J.), the Democrat who chairs the committee, said any member of Congress using social media to spread falsehoods about election fraud was “wrong,” but he remained optimistic that he could find bipartisan momentum with Republicans who don’t agree with that rhetoric.
“There’s many that came out and said after Jan. 6 that they regretted what happened and they don’t want to be part of it at all,” Pallone said in an interview. “You have to hope that there’s enough members on both sides of the aisle that see the need for some kind of legislative reform here because they don’t want social media to allow extremism and disinformation to spread in the real world and encourage that.”
Uh huh. The problem is that those who spread disinformation online don't think of it as disinformation. And they see any attempt to cut back on their ability to spread it to be (wrongly) "censorship." Just the fact that the two sides can't even agree on what is, and what is not, disinformation should give pause to anyone seeking "some kind of legislative reform" here. While the Democrats may be in power now, that may not last very long, and they should recognize that if it's the Republicans who get to define what is and what is not "disinformation" it may look very, very different than what the Democrats think.
By now it's pretty apparent that the FCC doesn't much want to talk about who was behind the numerous bogus comments that flooded the agency's net neutrality repeal proceeding. When I asked the FCC for help after someone lifted my identity to support repealing the rules, the FCC responded with the policy equivalent of a ¯\_(ツ)_/¯. Similarly, when New York Attorney General Eric Shneiderman approached the FCC looking for help identifying the culprit (9 requests over 5 months, he said in an open letter), the FCC blocked the investigation.
Most analysts believe the effort was a ham-fisted attempt to erode trust in the public comment proceeding in order to downplay massive public opposition to the FCC's plan (a tactic that has mysteriously plagued other government proceedings over the last year). The FCC could pretty quickly clear this all up by providing access to server logs and API key usage details to law enforcement. Its consistent refusal to do so quickly dismantles agency boss Ajit Pai's continued, breathless claims that he's a massive fan of transparency and would run a more transparent operation than his predecessor.
This week, members of the House Committee on Energy and Commerce sent a letter to Pai again asking him to explain (pdf) why the FCC ignored the public and sat on its hands as millions of bogus comments (some of them from dead people) piled up. Included in the questions were inquiries regarding how the FCC (which says it ignored comments "devoid of substance") determined what public comments were worth paying attention to, if any:
"How were comments determined to be “devoid of substance”? How were others determined to “bear substantively” on the issue? What were the training methods and guidelines for staff making these determinations? How many staff hours were dedicated to this?"
Pai was also asked why he doesn't think helping law enforcement get to the bottom of the scandal is a good idea:
"Why has the FCC failed to cooperate with the NY attorney general’s investigation into potential identity theft?"
And why didn't the agency implement any kind of screening process to help ferret out bulk, bogus comments (many of which were submitted by a bot in purely alphabetical order):
"Why did the FCC choose to not implement any kind of identity verification in its comment platform? The FCC says it excluded comments that used fake names, but how was it determined which these were? And if it is known which comments used fake names, why were these comments not removed from the docket?
Of course like previous inquiries, Pai isn't likely to respond -- at least not with any answers that provide real meaning. Since ISPs have been obnoxiously successful falsely framing net neutrality as a partisan issue, and the letter sent to Pai consists largely of Democrats, it will be relatively easy to dismiss the inquiry as little more than partisan gamesmanship. You'd just have to ignore the fact that an open, healthy internet free of domination by telecom monopolies benefits everyone, or the fact that polls routinely show net neutrality has broad, bipartisan support.
It's not hard for the FCC to identify who was behind the effort, and given the attack only benefits either the telecom industry or the folks in the Trump administration pushing the repeal, the short list of culprits is arguably tiny. But while Pai apparently has zero interest in helping find out who was behind the disinformation campaign, it's likely additional details will emerge courtesy of the countless lawsuits currently heading the FCC's general direction.
If you were to sit down and consciously select a politician that best represents the stranglehold giant telecom companies like AT&T, Verizon and Comcast have over the legislative process, you probably couldn't find a better candidate than Tennessee Representative Marsha Blackburn. From her endless assault on net neutrality, to her defense of awful state protectionist laws written by ISP lobbyists, there has never been a moment when Ms. Blackburn hasn't prioritized the rights of giant incumbent duopolists over the public she professes to serve.
Blackburn has been fairly awful on technology policy in general, from her breathless support of SOPA to her claim that fair use is just a "buzzword" obscuring our desperate need for tougher copyright laws. As such, there should be little surprise that Blackburn has been selected to head the House Energy and Commerce Committee's Subcommittee on Communications and Technology. The subcommittee tackles most of the pressing internet-related issues, with Blackburn replacing Oregon Representative Greg Walden.
Blackburn joins a growing chorus of GOP insiders who have made it a core mission to dismantle net neutrality protections, despite the fact that they have broad, bipartisan appeal among consumers. At least Blackburn has been consistent; she spearheaded the "Internet Freedom Act," which attempted to kill net neutrality by effectively codifying non-net neutrality into law and hamstringing any regulator that tried to protect it. According to Blackburn, this wasn't just because AT&T and Comcast are among her biggest campaign contributors, but because she really, truly adores "innovators":
"Once the federal government establishes a foothold into managing how Internet service providers run their networks they will essentially be deciding which content goes first, second, third, or not at all. My legislation will put the brakes on this FCC overreach and protect our innovators from these job-killing regulations."
Blackburn has also gone out of her way to defend AT&T and Comcast's efforts to pass state-level protectionist laws. These laws, passed in more than nineteen states, prevent towns and cities from improving local broadband infrastructure -- even in instances where incumbent ISPs have refused to upgrade. According to Blackburn, these competition-killing laws -- which serve solely to protect duopoly revenues -- are somehow necessary to protect "free market competition":
"After witnessing how some local governments wasted taxpayer dollars and accumulated millions in debt through poor decision making, the legislatures of states like North Carolina and Tennessee passed commonsense, bipartisan laws that protect hardworking taxpayers and maintain the fairness of free-market competition."
Needless to say, Blackburn's home state of Tennessee consistently ranks as one of the least connected states in the nation as a direct result of her hard work. More recently, Blackburn went so far as to suggest that ISPs should be forced to remove "fake news" from the internet:
"If anyone is putting fake news out there, the ISPs have the obligation to, in some way, get that off the web. And maybe it's time for these information systems to look to have some type of news editor doing some vetting on that. Whether it's the Russians, the Chinese, the Iranians or whomever. You do not want that out there because it's... because it's fake news!"
In other words, Blackburn doesn't believe in protecting a healthy and open internet, thinks letting incumbent ISPs write competition-killing protectionist law is somehow good for broadband competition, consistently complains about government overreach, and yet wants the government to force ISPs to dictate what is or isn't acceptable news, while dramatically expanding draconion and unnecessary copyright law. Clearly she's the perfect choice to lead tech policy toward the twenty-second century -- provided you like living in something akin to a poorly-written dystopian novel.
When you testify before Congress, it helps to actually have some knowledge of what you're talking about. On Tuesday, the House Energy & Commerce Committee held the latest congressional hearing on the whole silly encryption fight, entitled Deciphering the Debate Over Encryption: Industry and Law Enforcement Perspectives. And, indeed, they did have witnesses presenting "industry" and "law enforcement" views, but for unclear reasons decided to separate them. First up were three "law enforcement" panelists, who were free to say whatever the hell they wanted with no one pointing out that they were spewing pure bullshit. You can watch the whole thing below (while it says it's 4 hours, it doesn't actually start until about 45 minutes in):
Lots of craziness was stated -- starting with the idea pushed by both chief of intelligence for the NYPD, Thomas Galati and the commander of the office of intelligence for the Indiana State Police, Charles Cohen -- that the way to deal with non-US or open source encryption was just to ban it from app stores. This is a real suggestion that was just made before Congress by two (?!?) separate law enforcement officials. Rep. Morgan Griffith rightly pointed out that so many encryption products couldn't possibly be regulated by US law, and asked the panelists what to do about it. You can watch the exchange here:
You see Cohen ridiculously claim that since Apple and Google are gatekeepers to apps, that the government could just ban foreign encryption apps from being in the app stores:
Right now Google and Apple act as the gatekeepers for most of those encrypted apps, meaning if the app is not available on the App Store for an iOS device, if the app is not available on Google Play for an Android device, a customer of the United States cannot install it. So while some of the encrypted apps, like Telegram, are based outside the United States, US companies act as gatekeepers as to whether those apps are accessible here in the United States to be used.
This is just wrong. It's ignorant and clueless and for a law enforcement official -- let alone one who is apparently the "commander of the office of intelligence" -- to not know that this is wrong is just astounding. Yes, on Apple phones it's more difficult to get apps onto a phone, but it's not impossible. On Android, however, it's easy. There are tons of alternative app stores, and part of the promise of the Android ecosystem is that you're not locked into Google's own app store. And, really, is Cohen literally saying that Apple and Google should be told they cannot allow Telegram -- one of the most popular apps in the world -- in their app stores? Really?
Galati then agreed with him and piled on with more ignorance:
I agree with what the Captain said. Certain apps are not available on all devices. So if the companies that are outside the United States can't comply with same rules and regulations of the ones that are in the United States, then they shouldn't be available on the app stores. For example, you can't get every app on a Blackberry that you can on an Android or a Google.
Leaving aside the fact he said "Android or a Google" (and just assuming he meant iPhone for one of those)... what?!? The reason you can't get every app on a BlackBerry that's on other devices has nothing to do with any of this at all. It's because the market for BlackBerry devices is tiny, so developers don't develop for the BlackBerry ecosystem (and, of course, some BlackBerries now use Android anyway, so...). That comment by Galati makes no sense at all. Using the fact that fewer developers develop for BlackBerry says nothing about blocking foreign encryption apps from Android or iOS ecosystems. It makes no sense.
Why are these people testifying before Congress when they don't appear to know what they're talking about?
Later in the hearing, when questioned by Rep. Paul Tonko about how other countries (especially authoritarian regimes) might view a US law demanding backdoors as an opportunity to demand the same levels of access, Cohen speculated ridiculously, wildly and falsely that he'd heard that Apple gave China its source code:
Here's what Cohen says:
In preparing for the testimony, I saw several news stories that said that Apple provided the source code for iOS to China, as an example. I don't know whether those stories are true or not.
Yeah, because they're not. He then goes on to say that Apple has never said under oath whether or not that's true -- except, just a little while later, on the second panel, Apple's General Counsel Bruce Sewell made it quite clear that they have never given China its source code. Either way, Cohen follows it up by saying that Apple won't give US law enforcement its source code, as if to imply that Apple is somehow more willing to help the Chinese government hack into phones than the US government. Again, this is just blatant false propaganda. And yet here is someone testifying before Congress and claiming that it might be true.
Thankfully, at the end of the hearing, Rep. Anna Eshoo -- who isn't even a member of the subcommittee holding the hearing (though she is a top member of the larger committee) joined in and quizzed Cohen about his bizarre claims:
She notes that it's a huge allegation to make without any factual evidence, and asks if he has anything to go on beyond just general "news reports." Not surprisingly, he does not.
Elsewhere in the hearing, Cohen also insists that a dual key solution would work. He says this with 100% confidence -- that if Apple and law enforcement had a shared key it would be "just like a safety deposit box." Of course, this is also just wrong. As has been shown for decades, when you set up a two key solution, you're introducing vulnerabilities into the system that almost certainly let in others as well.
And then, after that, Rep. Jerry McNerney raises the point -- highlighted by many others in the past -- that rather than "going dark," law enforcement is in the golden age of surveillance and investigation thanks to more and new information, including that provided by mobile phones (such as location data, metadata on contacts and more). Cohen, somewhat astoundingly, claims he can't think of any new information that's now available thanks to mobile phones:
Here's Cohen:
Sir, I'm having problems thinking of an example of information that's available now that was not before. From my perspective, thinking through investigations that we previously had information for, when you combine the encryption issue along with shorter and shorter retention periods, in a service provider, meaning they're keeping their records, for both data and metadata, for a shorter period of time, available to legal process. I'm having difficulty finding an example of an avenue that was not available before.
Huh?!? He can't think of things like location info from mobile phones? He can't think of things like metadata and data around unencrypted texts? He can't think of things like unencrypted and available information from apps? Then why is he on this panel? And the issue of data retention? Was he just told before the hearing to make a point to push for mandatory data retention and decided to throw in a nod to it here?
At least Galati, who went after him, was willing to admit that tech has provided a lot more information than in the past -- but then claimed that encryption was "eliminating those gains."
Cohen is really the clown at the show here. He also claims that Apple somehow decided to throw away its key and that it was "solving a problem that doesn't exist" in adding encryption:
There he's being asked by Rep. Yvette Clarke if he sees any technical solutions to the encryption issue, and he says:
The solution that we had in place previously, in which Apple did hold a key. And as Chief Galati mentioned, that was never compromised. So they could comply with a proper service of legal process. Essentially, what happened is that Apple solved a problem that does not exist.
Again, this is astoundingly ignorant. The problem before was that there was no key. It wasn't that Apple had the key, it's that the data was readily available to anyone who had access to the phone. That put everyone's information at risk. It's why there was so much concern about stolen phones and why stolen phones were so valuable. For a law enforcement official to not realize that and not think it was a real problem is... astounding. And, again, raises the question of why this guy is testifying before Congress.
It also raises the question of why Congress put him on a panel with no experts around to correct his many, many errors. At the very least, towards the beginning of the second panel, Apple GC Sewell explained how Cohen was just flat out wrong on these points:
If you can't see that, after his prepared remarks, Sewell directly addresses Cohen's claims:
That's where I was going to conclude my comments. But I think I owe it to this committee to add one additional thought. And I want to be very clear on this: We have not provided source code to the Chinese government. We did not have a key 19 months ago that we threw away. We have not announced that we are going to apply passcode encryption to the next generation iCloud. I just want to be very clear on that because we heard three allegations. Those allegations have no merit.
A few minutes later, he's asked directly about this and whether or not the Chinese had asked for the source code, and Sewell says that, yes, the Chinese have asked, and Apple has refused to give it to them:
Seems like they could have killed 3 hours of ignorant arguments presented to Congress, if they had just not allowed such ignorance to be spewed earlier on.
