The U.S. House Judiciary Committee held a hearing last week to discuss the spread of white nationalism, online and offline. The hearing tackled hard questions about how online platforms respond to extremism online and what role, if any, lawmakers should play. The desire for more aggressive moderation policies in the face of horrifying crimes is understandable, particularly in the wake of the recent massacre in New Zealand. But unfortunately, looking to Silicon Valley to be the speech police may do more harm than good.
When considering measures to discourage or filter out unwanted activity, platforms must consider how those mechanisms might be abused by bad actors. Similarly, when Congress considers regulating speech on online platforms, it must consider both the First Amendment implications and how its regulations might unintentionally encourage platforms to silence innocent people.
But there’s a lot platforms can do right now, starting with more transparency and visibility into platforms’ moderation policies. Platforms ought to tell the public what types of unwanted content they are attempting to screen, how they do that screening, and what safeguards are in place to make sure that innocent people—especially those trying to document or respond to violence—aren’t also censored. Rep. Pramila Jayapal urged the witnesses from Google and Facebook to share not just better reports of content removals, but also internal policies and training materials for moderators.
Better transparency is not only crucial for helping to minimize the number of people silenced unintentionally; it’s also essential for those working to study and fight hate groups. As the Anti-Defamation League’s Eileen Hershenov noted:
To the tech companies, I would say that there is no definition of methodologies and measures and the impact. […] We don’t have enough information and they don’t share the data [we need] to go against this radicalization and to counter it.
Along with the American Civil Liberties Union, the Center for Democracy and Technology, and several other organizations and experts, EFF endorses the Santa Clara Principles, a simple set of guidelines to help align platform moderation practices to human rights and civil liberties principles. The Principles ask platforms
to be honest with the public about how many posts and accounts they remove,
to give notice to users who’ve had something removed about what was removed, and under what rule, and
to give those users a meaningful opportunity to appeal the decision.
Hershenov also cautioned lawmakers about the dangers of heavy-handed platform moderation, pointing out that social media offers a useful view for civil society and the public into how and where hate groups organize: “We do have to be careful about whether in taking stuff off of the web where we can find it, we push things underground where neither law enforcement nor civil society can prevent and deradicalize.”
Before they try to pass laws to remove hate speech from the Internet, members of Congress should tread carefully. Such laws risk pushing platforms toward a more highly filtered Internet, silencing far more people than was intended. As Supreme Court Justice Anthony Kennedy wrote in Matel v. Tam (PDF) in 2017, “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all.”
Back in July we were flabbergasted to see a stunningly misleading and dishonest video put out by the the House Judiciary Committee trying to claim that FOSTA had been a huge success in stopping sex trafficking. There is literally no evidence to suggest this, while there's plenty of evidence to show the harm that has been created by FOSTA. One of the claims in the video came from Rep. Ann Wagner, who was the original sponsor of FOSTA and has been a leading voice in stoking the exaggerated and misleading moral panic around sex trafficking (which is a real problem, but very, very limited compared to what many -- including Wagner -- have said about it). Wagner's latest trick has been to try to massively expand the PATRIOT Act for spying on Americans by again freaking everyone out about sex trafficking.
As we noted back in July, in the video, Wagner tries to imply that FOSTA helped kill off 90% of sex trafficking. She worded it awkwardly so that it clearly implies 90% of sex trafficking went away due to FOSTA, but it could also be read to just say that 90% of sex trafficking ads went away. As we pointed out at the time, this was clearly not true either way. While Backpage contained many ads, it stopped with those ads a year and a half before FOSTA was law, and was taken down by the feds before FOSTA was signed. So there was literally no way that FOSTA could be in any way credited for a drop in ads coming from Backpage.
I missed it, but a few weeks later, the Washington Post set its fact checker on these specific claims, and did an even more thorough analysis, even asking Wagner's office for details. And those details make Wagner look even worse, leading the Washington Post to give her the full three Pinocchios in their final ruling on the accuracy of her claim. Specifically, Wagner's office argued that a DARPA analysis saw a "weekly global ad volume dropped 87 percent from January to April." But, as the WaPo article notes (and as we did as well) the vast majority of that was from the takedown of Backpage, which was not due to FOSTA.
But, from there things get even worse. The Washington Post asked DARPA for what happened after April and found... things are not at all what the House Judiciary Committee and Wagner were claiming. Indeed, while there was an initial decline due to Backpage shutting down (again, not due to FOSTA), it quickly went back up after April -- conveniently ignored by Wagner and the HJC. Why contaminate the narrative with facts:
Worldwide ads had a daily average of about 105,000 when FOSTA-SESTA passed on March 21 and had dropped 28 percent by the time Backpage was closed on April 5. It then plunged another 75 percent and reached a low of 19,456 on April 17, for a total decline of about 82 percent.
But on the day the Judiciary Committee posted the video, sex-trade ads were back at about 50 percent of the daily volume before the law had passed; as of Aug. 11, they were at almost 75 percent....
“The volume of ads dropped dramatically after the shutdown of Backpage but has been climbing since,” said Chris Dickson, director of research engineering at Uncharted. “There is now a volume approaching what we observed before.”
So, once again it appears that Wagner and the HJC like to completely make up stories for grandstanding political purposes. They over-hyped the size of sex trafficking to pass this bad law, and then they massively over-hyped the impact of the law, ignoring (1) that the impact they took credit for had nothing to do with the law, and (2) ignoring that the data didn't actually support what they claimed.
So why the hell is anyway still listening to Rep. Ann Wagner and her use of "sex trafficking" to try to pass new laws?
So, yesterday the House Judiciary Committee did what the House Judiciary Committee seems to do best: hold a stupid, nonsensical, nearly fact-free "hearing" that serves as nothing more than an opportunity for elected members of Congress to demonstrate their ignorance of an important topic, while attempting to play to their base. This time, the topic was on the content filtering practices of Facebook, Twitter and Google. Back in May there was actually a whole one day conference in Washington DC on this topic. The Judiciary Committee would have been a lot better served attending that than holding this hearing. I'd recommend not wasting three hours of your life watching this thing, but if you must:
The shortest summary would be that some Republican members of Congress think that these websites censor too much conservative speech, and some Democratic members of Congress think that they don't censor enough other speech (including hoaxes and conspiracy theories)... and almost no one wants to admit that this is not even remotely an issue that Congress should be concerned about. There's a narrative that has been picked up by many that insist that social media platforms are unfairly censoring "conservatives." There is basically zero evidence to support this. Indeed, a thorough analysis of the data back in March by Nieman Labs and Newswhip found that conservative-leaning sites get much, much, much more engagement on Facebook than liberal-leaning sites.
But, never let facts get in the way of a narrative. Since that seems to be the way many hyperpartisan sites (at either end of the spectrum) deal with these things, Congress is helping out. The only bit of sanity, perhaps bizarrely, came from Rep. Ted Lieu, who reminded everyone of the importance of free markets, free speech and the fact that private platforms get to decide how they manage their own services. Considering that Republicans often like to claim the mantle of being the "small, limited government" party who wants the government's hands out of business regulation, the fact that most of the hearing involved Republicans screaming for regulating internet platforms and a Democrat reminding everyone about the importance of a free market, capitalism and free speech, it really was quite a hearing. Lieu's remarks were some of the rare moments of sanity during the hearing -- including defending Facebook leaving Alex Jones' conspiracy theories on its site. Let's start with that high point before we dive into the awfulness. His comments come at about 2 hours and 10 minutes into the video:
... we're having this ridiculous hearing on the content of speech of private sector companies. It's stupid because there's this thing called the First Amendment. We can't regulate content! The only thing worse than an Alex Jones video is the government trying to tell Google... to prevent people from watching the Alex Jones video. We can't even do it if we tried. We can't even do any legislation out of this committee. And we're having this ridiculous second installment hearing after the first hearing about Diamond and Silk not getting enough likes on Facebook.
He then went on to ask questions "so the American public understands what a dumb hearing this is." And those questions -- again -- seemed like the kinds more expected from supposedly "free market" conservatives. Specifically he asked the companies if they were private companies aiming to maximize profits for shareholders. And he wasn't doing that to show that companies were evil, he was doing that to show that that's how the free market works. He followed up with this:
I noticed all of you talked about your own internal rules. Because that's what this should be about. You all get to come up with your own rules. But not because government tells you what to do. Or because government says you have to rule this way or that way. And the whole notion that somehow we should be interfering with these platforms from a legislative, governmental point of view is an anathema to the First Amendment. And really it's about the marketplace of ideas.
Kudos to Rep. Lieu. This is the kind of speech that you'd normally expect to hear from a "small government" conservative who talks about respecting the Constitution. But, in this case, it's a Democrat. And it's shameful that others (on both sides of the aisle) weren't making the same point. Instead, there was a ton of pure nonsense spewed from the Republicans at the hearing. It's hard to fathom that the following statements were made by people we've actually elected to our legislative body. There were so many dumb statements made that it's difficult to pick out just a few.
Let's start with Rep. Steve King, who has made quite a name for himself saying and repeating bigoted nonsense. Starting at about an hour and five minutes in the video, King seemed particularly concerned about traffic to Gateway Pundit, a site famous for trafficking in utter nonsense.
It's a matter of Congressional record that Gateway Pundit, Mr. Jim Hoft, has introduced information into the record that in the span of time between 2016 and 2018, he saw his Facebook traffic cut by 54%. Could you render an explanation to that?
Um... what? How the hell is it of any concern to Congress whatsoever the traffic a single site gets? And, as we were just discussing recently, traffic to lots of news sites from Facebook has dropped massively as Facebook has de-prioritized news. In that post, we pointed out that Slate was self-reporting a drop in Facebook traffic over that same period of time of 87%. Based on that, why isn't King asking about Slate's traffic dropping? Perhaps because Gateway Pundit publishes the kind of nonsense King supports and Slate points out that King is a bigot?
And... isn't that, again, kind of the point of the First Amendment? To protect news sites from having Congress play favorites?
Incredibly, King then concludes his time by first claiming he's all for free speech and free enterprise, but wonders about turning social media sites into regulated utilities.
I'm all for freedom of speech and free enterprise and for competition and finding a way that we can have competition itself that does its own regulation, so government doesn't have to, but if this gets further out of hand, it appears to me that Section 230 needs to be reviewed, and one of the discussions that I'm hearing is 'what about converting the large behemoth organizations that we're talking about here into public utilities.'
Are we living in an upside down world? A Democrat is praising the free market, profits and free speech, and a Republican is advocating for limiting free speech and in favor of turning some of the most successful US companies into public utilities? What is even going on here?
Around an hour and 18 minutes, we get our old friend Rep. Louis Gohmert, who has a fairly long and extensive history of making the dumbest statements possible concerning technology issues. And he lived down to his usual reputation in this hearing as well. It starts off by him trying to play down the issue of Russian interference in elections, by claiming (?!?) that the Russians helped Truman get elected, and then claiming that Russians had helped basically every Democratic President get elected in the past 70 years. And then spent a long time trying to complain that the platforms wouldn't tell him if Chinese or North Korean intelligence services had also used their platforms. Remember, these companies were asked to come and testify specifically about Russian use of their platforms to interfere with the election and Gohmert stepped in with this insane "what about other countries, huh?" argument:
Gohmert: I need to ask each of you. You've been asked specifically about Russian use of your platforms. But did you ever find any indication of use of your platform, utilized by the Chinese, North Korea, or any other foreign country intelligence or agency of that country. First, Ms. Bickert?
Bickert/Facebook: I would note, Congressman, that we're not in North Korea or China. In terms of whether we've seen attacks on our services, we do have -- we are, of course, a big target -- we do have a robust security team that works...
Gohmert: Well, but that's not my question. It's just a very direct question. Have you found... You don't have to be in North Korea to be North Korean Intelligence and use... We have foreign government intelligence agencies IN THIS COUNTRY. So have... It seems to me you were each a little bit vague about "oh yes, we found hundreds" or whatever. I'm asking specifically, were any of those other countries besides Russia that were using your platform inappropriately? It should be a yes or no.
Actually, no, it shouldn't be a yes or no. That's a dumb and misleading question for a whole long list of reasons. Of course, lots of other intelligence agencies are using Facebook, because of course they are. But, the entire point of this line of questioning seems to be Gohmert trying to play down Russian use of the platform, which is... odd. Especially after he started out by praising the fact that maybe the Russians might help "our side" get elected going forward.
Bickert: I don't have the details. I know we work to detect and repel attacks...
Gohmert: I know that. But were any of them foreign entities other than Russia?
Bickert: I can certainly follow up with you on that.
Gohmert: SO YOU DON'T KNOW?!? You sure seemed anxious to answer the Democrats questions about RUSSIA's influence. And you don't really know of all the groups that inappropriately used your platform? You don't know which were Russians and which were other foreign entities?
No, that's not what she's saying at all. She's pretty clearly saying that this hearing was specifically about Russian influence and that's what she was prepared to testify on. She didn't say that Facebook can't tell Russians from other entities, just that the other entities aren't the ones accused of messing with the election and thus there isn't that much relevant right now. But that's quite a deflection attempt by Gohmert.
Let's move on to Rep. Tom Marino at about an hour and a half into the video. Marino seems to have a fairly bizarre understanding of the law as it concerns defamation. He focuses on the guy from Twitter, Nick Pickles, and starts out by reading a definition of "libel." Then he asks
Have any of you considered libel? Or do you think you are immune from it?
This is an incredibly stupid question. Twitter is clearly not immune from libel. Marino's line of questioning is an attempt to attack CDA 230, which provides immunity to Twitter from liability for defamatory statements made by its users. This is an important distinction that Marino conveniently ignores as he continues to bug Pickles.
Pickles: We have clear rules that governs what happens on Twitter. Some of those behaviors are deplorable and we want to remove them immediately... So, terrorist content is one example, where we now detect 95% of the terrorist accounts we remove...
Marino: Okay, I understand that sir. But how about... we in Congress, we put up with it all the time. I know we're public officials, same with people in the movies... but do you specifically look for and address... republication can be used in a defamation case. Do you look at libel and defamation content?
I don't even know what that means. Do you look at libel content? What? How does Twitter know if something is libelous? Especially against public officials? How is Twitter supposed to make that judgment when that's what courts are there to figure out? And, for what it's worth, Twitter has been known to abide by court rulings on defamatory speech in deciding to take down that content, but Marino seems to be asking if they make an independent judgment outside of the courts of what's libelous. Which is both crazy and impossible. Pickles makes a valiant effort in response, noting how Twitter focuses on its rules -- which is all that it's required to do -- but Marino clearly seems to want to attack CDA 230 and magically make Twitter liable for libelous content on its platform. After Pickles again explains that it focuses on its rules, rather than making judicial rulings that it cannot make, Marino puts on a dumb smirk and makes another dumb statement:
With all due respect, I've heard you focus on your rules about 32 times. DO. YOU. LOOK. FOR. LIBEL. OR. DEFAMATION. IN. YOUR. COMPANY'S. OPINION?
You can't "look for libel or defamation" like that. That's not how it works. Marino is a lawyer. He should know this. The Facebook and YouTube representatives neatly sidestep Marino's silly line of questioning by pointing out that when informed of legal rulings determining "illegal" speech, they take it down. Marino doesn't even seem to notice this very specific distinction and asks "where do you draw the line?"
At an hour and forty minutes, we have everyone's favorite, Rep. Lamar Smith, author of SOPA back in the day. He spews more utter nonsense claiming conservatives have been more negatively impacted by the moves of these social media companies, and then (bizarrely) argues that Google employees forcing the company not to help surveillance activity is somehow an attack on conservatives. Excuse me? Conservatives don't support the 4th Amendment any more? Say what? But the real craziness is this line:
Google has also deleted or blocked references to Jesus, Chick-Fil-A and the Catholic religion.
I'm going to call time out here and note [citation needed] on that one, Smith. Google pretty clearly shows me results on all three of those things. I've been trying to figure out what the hell he's referring to, and I'm guessing that Smith -- in his usual Smithian nonsensical way -- is confusing Google for Facebook, and Facebook's bad filter that initially blocked a page about "Chick-fil-Appreciation Day," and some Catholic church pages. The "Jesus" blocking is also Facebook and was in reference to an ad for a Catholic university.
All of these examples were not, as Smith implies, evidence of "liberal bias" on behalf of Facebook, but rather evidence of why it's so problematic that governments are putting so much pressure on Facebook to magically filter out all of the bad stuff. That's not possible without making mistakes. And what happens is that you set up guidelines and those guidelines are then handed to people who don't have nearly enough time to understand the context, and sometimes they make mistakes. It's not bias. It's the nature of trying to moderate millions of pieces of content every damn day, because if they don't, these same idiots in Congress would be screaming at them about how they're letting the bad content live on. I mean, it's doubly ridiculous for Smith to use the Jesus example as even the guy who bought the ad, the university's web communications director, specifically said that he didn't believe it had anything to do with bias, but was just a bad decision by an algorithm or a low level staffer.
Finally (and there are more, but damn, this post is getting way too long) we get to Rep. Matt Gaetz. At around an hour and 55 minutes into the hearing, he suddenly decides to weigh in that the First Amendment and CDA 230 are somehow in conflict, in another bizarre exchange between Gaetz and Twitter's Pickles.
Gaetz: Is it your testimony or is it your viewpoint today that Twitter is an interactive computer service pursuant to Section 230 sub c(1).
Pickles: I'm not a lawyer, so I won't want to speak to that. But as I understand, under Section 230, we are protected by that, yes.
Gaetz: So Section 230 covers you, and that section says "no provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another"... is it your contention that Twitter enjoys a First Amendment right under speech, while at the same time enjoying Section 230 rights?
Pickles: Well, I think we've discussed the way the First Amendment interacts with our companies. As private companies we enforce our rules, and our rules prohibit a range of activities.
Gaetz: I'm not asking about your rules. I'm asking about whether or not you believe you have First Amendment rights. You either do or you do not.
Pickles: I'd like to follow up on that, as someone who is not a lawyer... I think it's very important...
Gaetz: Well, you're the senior public policy official for Twitter before us and you will not answer the question whether or not you believe your company enjoys rights under the First Amendment?
Pickles: Well, I believe we do, but I would like to confirm with colleagues...
Gaetz: So what I want to understand is, if you say "I enjoy rights under the First Amendment" and "I'm covered by Section 230" and Section 230 itself says "no provider shall be considered the speaker" do you see the tension that creates?
There is no tension there. The only tension is between the molecules in Gaetz's brain that seemed to think this line of nonsensical argument makes any sense at all. There is no conflict. First, yes, it's obvious that Twitter is clearly protected by both the First Amendment and CDA 230. That's been established by dozens of court rulings with not a single ruling ever holding otherwise. Second, the "tension" that Gaetz sees is purely a figment of his own misreading of the law. The "no provider shall be considered a speaker" part, read in actual context (as Gaetz did earlier) does not say that platforms are not speakers. It says that they are not considered a speaker of other people's speech. In fact, this helps protect free speech by enabling internet platforms the ability to host any speech without facing liability for that speech.
That helps protect the First Amendment by ensuring that any liability is on the speaker and not on the tool they use to distribute that speech. But Twitter has its own First Amendment rights to determine what speech it decides to keep on its site -- and which speech it decides not to allow. Gaetz then, ridiculous, tries to claim that Pickle's response to that nonsensical response is somehow in conflict with what Twitter's lawyers have said in the silly Jared Taylor lawsuit. Gaetz asks Pickles if Twitter could kick someone off the platform "for being a woman or being gay." Pickles points out that that is not against Twitter's rules... and Gaetz points out that in the Taylor case, when asked the same question, Twitter's lawyers stated (1) that Twitter has the right to do so but (2) never would.
Again, both Pickles and Twitter's lawyers are correct. They do have that right (assuming it's not a violation of discrimination laws) but of course they wouldn't do that. Pickles wasn't denying that. He was pointing out that the hypothetical is silly because that's not something Twitter would do. Twitter's lawyers in the case were, correctly, pointing out that it would have the right to do such a nonsensical thing if it chose to do so, while also making it clear it would never do that. Again, that's not in conflict, but Gaetz acts as if he's "caught" Twitter in some big admission.
Gaetz falsely then claims that Pickles is misrepresenting Twitter's position:
Right but it is not in service of transparency if Twitter sends executives to Congress to say one thing -- that you would not have the right to engage in that conduct -- and then your lawyers in litigation say precisely the opposite.
Except that's not what happened at all. Pickles and the lawyers agreed. At no point did Pickles say that Twitter did not have "the right" to kick people off its platform for any reason. He just noted that it was not a part of their policy to do so, nor would it ever be. That's entirely consistent with what Twitter's lawyers said in the Taylor case. This is Gaetz making a complete ass out of himself in completely misrepresenting the law, the constitution and what Twitter said both in the hearing and in the courthouse.
Seriously, people, we need to elect better Representatives to Congress. This is embarrassing.
As you may have heard, Rep. John Conyers recently stepped down from his role as Ranking Member (basically top member of the minority party) on the powerful House Judiciary Committee, and this week has announced his retirement, in response to multiple accusations of sexual harassment. That has kicked off something of an interesting and important debate over who should replace him as ranking member on the Judiciary Committee.
The next in line by seniority is Rep. Jerry Nadler. But right behind him is Rep. Zoe Lofgren. By way of disclosure, I'll note that I've gotten to know Lofgren over the years, and have donated to her election campaign. But even before I'd ever spoken to her, I've noted how she remains one of the few people in Congress who seems to consistently do the right thing on basically all of the issues that we care about at Techdirt. You can see our past coverage of stories involving Lofgren. Most specifically on copyright and surveillance, she hasn't just been on the right side, she's been leading the way. She is, almost single-handedly, the person who stopped SOPA from passing. She has consistently raised important issues and introduced important bills and amendments concerning copyright, NSA surveillance and the CFAA among other things.
Obviously, I think she'd make a great ranking member for the Judiciary Committee (or the chair should the House flip sides in the future). So I was happy to see her recently announce her intention to run for the Ranking Member position against Nadler. Who knows if she'll actually get the position, but I found it odd that upon announcing it, she was immediately attacked by, of all places, The Intercept, which put forth a really strange article accusing Lofgren of being a Google shill. This was strange on multiple levels -- though, I get it. Lofgren gets called a "Google shill" for the same reasons that we do here at Techdirt. Because, even though we frequentlydisagree with Google on a variety of issues, on the whole we support many of the same policies that protect free speech and open innovation online.
That's also true of Lofgren. While she's supported key policies on copyright, online speech, innovation and surveillance, she's similarly pushed back against Google quite frequently as well. She's publicly criticized the company for its lack of diversity. She's voted against a bill to expand H1-B visas that Google supported. She voted against Trade Promotion Authority (which Google stupidly supported -- as noted in one of my links above) that paved the way to moving forward on TPP. On top of that, the tech industry has mostly pushed back on CFAA reform, such as Lofgren's Aaron's Law, because companies want to have it as a tool to use against employees at times. Just recently, Lofgren has started digging into competition inssues in Silicon Valley, warning about the lack of competition and how it's a problem -- a position that, more than likely, Google finds worrisome.
That's just part of why it's so odd that the Intercept, of all publications, would post this article suggesting that Lofgren doesn't belong as the ranking member on the Judiciary Committee just because she's "close" to Google. Even odder, is the fact that the authors of the piece -- two reporters whose work I've long respected, Ryan Grim and Lee Fang -- focus entirely on claiming that Lofgren is a product of Google, while ignoring anything about Nadler. Not only has Nadler been on the wrong side of many of these same key issues, if you consider Lofgren somehow tied to Google (again, incorrectly) then you would similarly have to conclude that Nadler is in the pocket of the legacy entertainment industry, and their ongoing quest to destroy the internet as we know it. If you start looking at Nadler's campaign finance situation, it sure looks like he's the MPAA and the RIAA's favorite Congressman.
In the last campaign cycle, the RIAA gave significantly more to Nadler than any other Democrat. Same with Disney. Same with Sony. Same with Time Warner. Same with Universal Music. Same with the Association of American Publishers. Same with ASCAP. While Viacom gave a bit more to three other members, Nadler was the 4th highest support on the Democratic side. Comcast gave a little more to Conyers, but again, Nadler is near the top of the list. The Grammys have given more to Nadler than any other Democrat, and he repays them by holding events with them all the time.
There's a pretty clear pattern here. If the legacy copyright players want something on the Democratic side, Nadler's their guy. And, maybe that doesn't matter to the Intercept. Maybe it doesn't matter that bad copyright policies that he promotes would have serious downsides to the way the internet works, to free speech and to privacy. Maybe, the Intercept has decided that any possible "connection" to Google is worse than everything else. But considering that the whole creation of The Intercept came about because of the Snowden revelations, and a key focus of The Intercept is to report on the evils of government surveillance, it's kind of surprising that it would publish an article promoting Nadler over Lofgren while ignoring that Nadler has not always been a close friend of surveillance reform. It's true that he's sponsored some reform efforts, including the USA Freedom Act, but just last month he was seen voting against an important amendment brought forth by Lofgren, to end backdoor searches in the ongoing effort to reform Section 702.
So it seems odd that the Intercept is effectively arguing that Nadler would make a better ranking member on Judiciary, even as Lofgren has a stronger record on stopping government surveillance, just because some (falsely) believe that Lofgren is "tied" to Google. And, at the very least, if they're going to tar Lofgren because her views sometimes align with Google's, it seems that it could at least treat Nadler equally by looking into his close connections with the legacy entertainment business.
As we've discussed there's this stupid big fight going on these days, in which some in Congress -- mainly at the urging of the legacy entertainment industry -- are looking to move the Copyright Office out of its historical home in the Library of Congress. The first proposal to sort of (but not completely) do that, involved just making the head of the Copyright Office a Presidential appointment position, rather than (as now) appointed by the Librarian of Congress. The main reason that various members of Congress put forth in support of this change was that this would magically give the Copyright Office the freedom to modernize. Of course, there are few facts to support this argument. We broke the story about serious incompetence at the Copyright Office in managing its own modernization efforts, and there was also plenty of evidence that the current Librarian of Congress was successfully moving forward with a thorough modernization plan.
And, yet, the House Judiciary Committee still voted overwhelmingly to move the bill out of committee. Thankfully, it appears the bill is pretty much dead in the water for now, apparently in part because some people noticed that it's not really the Judiciary Committee's jurisdiction. Judiciary has power over issues related to copyright, but this isn't a bill about copyright, but about administration. That belongs elsewhere and apparently some folks are none too pleased that the Judiciary Committee went behind their backs on this effort.
And then there's this: last week in the Appropriations Committee's latest appropriations bill for the legislative branch, it pointed out that the Library was doing a good job in modernizing the Copyright Office. Here's the relevant section:
Copyright Modernization: The Committee is encouraged by the
collaborative work between the United States Copyright Office
(USCO) and the Library of Congress’s Office of the Chief Information
Officer’s Office (OCIO) and is looking forward to the USCO’s
revised provisional IT plan which is expected in early August. The
Committee continues to support a shared-services approach with
regards to commodity IT services. Copyright modernization is
something the Committee fully supports and will continue to provide
appropriate resources. As we go forward OCIO is encouraged
to engage with stakeholders both in the Congressional-community
and beyond to outline clear benchmarks for progress.
In other words, the very reason given by the Judiciary Committee for why we need a separate Copyright Office has been totally undermined by the Appropriations Committee, who actually took the time to figure out what was going on. Now, some of this might just be fighting over domains, but it raises even more questions about why some in Congress are so eager to yank the Copyright Office away from the Library of Congress at a time when the modernization program seems to be moving forward successfully.
For many, many years, Senator Ron Wyden has been directly asking the US intelligence community a fairly straightforward question (in his role as a member of the Senate Intelligence Committee): just how many Americans are having their communications swept up in surveillance activities supposedly being conducted on foreigners under the FISA Amendments Act (FISA being Foreign Intelligence Surveillance Act). Wyden started asking way back in 2011 and got no answers. His continued questioning in 2013 resulted in Director of National Intelligence James Clapper lying to Congress in a public hearing, which Ed Snowden later claimed was a big part of the inspiration to make him leak documents to the press.
Just last month, we noted that Wyden had renewed his request for an accurate depiction of how many Americans have had their communications swept up, this time asked to new Director of National Intelligence, Dan Coats. Unfortunately, for all these years, it's basically felt like Senator Wyden tilting at a seeming windmill, with many others in Congress basically rolling their eyes every time the issue is raised. I've never understood why people in Congress think that these kinds of things can be ignored. There have been a few attempts by others -- notably on the House Judiciary Committee -- to ask similar questions. Almost exactly a year ago, there was a letter from many members of the HJC, and there was a followup in December. But, notably, while there were a number of members from both parties on that letter, the chair of the House Judiciary Committee, Bob Goodlatte, did not sign the letter, meaning that it was unlikely to be taken as seriously.
Suddenly, though, it seems that the ins-and-outs of Section 702, and how the "incidental" information it collects on Americans is used has taken on a much wider interest, following President Trump's misleading suggestion that President Obama tapped his phone lines, and some Trump supporters trying to twist typical 702 surveillance to justify those remarks. Either way, if that leads people to actually look at 702, that may be a good result out of a stupid situation. And, thus, we get to this surprising moment, in which Goodlatte has actually sent a similar letter to Coats (along with ranking member John Conyers) asking about the impact of 702 surveillance on Americans. And since (for reasons that are beyond me) Reuters refuses to link to the actual source materials, you can read the full letter here or embedded below.
The letter demands an answer by April 24th. And, yes, it's notable that Goodlatte has signed on, because Section 702 is up for reauthorization at the end of the year, and if Goodlatte is not on board with reauthorization, then the NSA is going to have some difficulty in getting it through.
You have described reauthorization of Section 702 as your "top legislative priority." Although Congress designed this authority to target non-U.S. persons located outside of the United States, it is clear that Section 702 surveillance programs can and do collect information about U.S. persons, on subjects unrelated to counterterrorism. It is imperative that we understand the size of this impact on U.S. persons as our Committee proceeds with the debate on reauthorization.
The letter then even points to Coats' response to Wyden during Coats' confirmation hearing that he was "going to do everything I can to work with Admiral Rogers in NSA to get you that number." Of course, back in December, it was said that the intelligence community might finally deliver that number... in January. And it's now April. Still, with Goodlatte finally taking an interest in this, it's a sign that the NSA can't just coast by and continue to completely ignore this.
Two bipartisan Congressional committees are the latest to express their opposition to government-mandated encryption backdoors. The House Judiciary Committee and the House Energy and Commerce Committee have arrived at the same conclusion as the experts FBI director James Comey insists on ignoring: encryption backdoors are a net loss for everyone, no matter what gains might be experienced by law enforcement and intelligence agencies.
This is stated plainly in the first bullet point of its encryption report [PDF]:
Any measure that weakens encryption works against the national interest
While the committees acknowledge encryption can impede investigative efforts, the downsides of backdoors cannot be offset by making things easier for certain government agencies.
[S]takeholders from all perspectives acknowledged the importance of encryption to our personal, economic, and national security. Representatives of the national security community told the EWG that strong encryption is vital to the national defense and to securing vital assets, such as critical infrastructure. Civil society organizations highlighted the importance of encryption for individual privacy, freedom of speech, human rights, and protection against government intrusion at home and abroad. Private sector stakeholders—in particular, their information security officers—and members of the academic community approached the question from an engineering perspective—against a wide array of threats, foreign and domestic, encryption is one of the strongest cybersecurity tools available.
However, the committees still believe there might be a way to reconcile competing interests, even though it has more questions than answers at this point. The report suggests more "collaboration" between tech companies and law enforcement agencies -- a term that generally means most of the compromises will be made by the private sector. Whether this means companies collecting more data and communications and storing them where law enforcement can access them or creating "one time" backdoors in response to court orders remains to be seen.
More encouragingly, the report suggests the "smart guys" in law enforcement haven't fully taken advantage of the tools and data available to them.
It also remains unclear whether the law enforcement community is positioned to fully leverage the unencrypted information still held by many companies. A number of stakeholders acknowledged the potential benefit of improving law enforcement’s understanding of what data or information is available, who controls it, and how it could be useful to investigators. In particular, companies are often able to provide volumes of unencrypted metadata associated with their products or services. In some cases, this source of information could be useful to investigators. In others, one representative of a law enforcement agency told the EWG, access to a stream of metadata might be more like “looking for a particular grain of sand on the beach.”
This is probably the result of the law enforcement mindset. It often seems agencies are more interested in what is quickest and easiest, rather than what might be more productive, if just a bit more difficult. (A number of cases where warrants were never obtained, despite officers having both the time and probable cause to do so, is evidence of this mindset.) The report suggests this is one area where things could be improved by collaboration with private companies. It's not a terrible suggestion but it's one that requires agencies to move on from their defeatist attitudes and to stop pretending advances in technology are always far more beneficial to criminals than to law enforcement.
The report also inadvertently points out just how disingenuous it is to shrug off mass surveillance concerns by saying, "It's just metadata."
Metadata may not completely replace the loss of encrypted content, but metadata analysis could play a role in filling in the gap. The technology community leverages this information every day to improve services and target advertisements. There appears to be an opportunity for law enforcement to better leverage this information in criminal investigations.
The report also touches on "legal hacking" as a potential solution -- albeit one with very limited practical application. If this is the route the government chooses to go more frequently in response to encrypted devices, it will signal the end of the already mostly-worthless Vulnerabilities Equity Process. It would also -- as the report acknowledges -- only further the "us vs. them" conflict between tech companies and law enforcement, as the government's interest in keeping vulnerabilities secret would tend to outweigh its obligation to divulge security holes to affected companies.
While the report breaks very little new ground in terms of issues raised, it does at least signal that legislative efforts to undermine encryption aren't likely to find much bipartisan support. So, for the time being, device encryption is still safe. It's the other issues raised -- legal hacking, compelled disclosure, etc. -- that will need to be watched closely in the future.
The House Judiciary Committee has been "exploring" various copyright reform proposals for a few years now, asking for feedback, holding a "listening tour" and more. Through it all, it seemed pretty clear that the Judiciary Committee is (reasonably) fearful of getting SOPA'd again, and thus was trying to figure out some less controversial proposals it could push forward first to see how they worked. Two, in particular, have been brought up multiple times: moving the Copyright Office out of the Library of Congress... and creating a "small claims court" for copyright infringement. And it appears that's what the Judiciary Committee is now moving forward on, even though both are pretty bad ideas.
Of course, showing how fearful they are of a SOPAlanche, Reps. Bob Goodlatte and John Conyers are kicking this off with a bland and detail-free one pager tossing out both suggestions, along with a similarly weird and bland YouTube video explaining the proposal, with unnecessary background music (what is that about?):
Note the very careful "these policy proposals are not meant to be the final word on reform in these areas." That's code for "okay, okay, we're testing the waters here, are people going to freak out about this...."
Anyway, the proposals in question are not horrible, but they're certainly not good either. Most of the attention will be focused on the Copyright Office stuff, but it's the small claims court proposal that is potentially much more nefarious and a much bigger deal. There are almost no details here, but this is what the proposal says:
The Copyright Office should host a small claims system consistent with the report on the issue released by the Copyright
Office. The small claims system should handle low value infringement cases as well as bad faith Section 512 notices. The
Register should be given the authority to promulgate regulations to ensure that the system works efficiently.
As we've seen, already copyright is often used as a way to stifle free expression. Mere threats of lawsuits, along with DMCA takedown letters, have become a very effective way to create chilling effects against content someone doesn't like. Adding in the ability to more easily sue and take people to court -- even if the eventual judgment may be for lower dollar amounts -- is tremendously problematic. If anything, it will just become an incredible tool for copyright trolls. It will legitimize their business model, which is to get a large volume of settlements that are in the hundreds or low thousands of dollars anyway. Obviously, the fact that this court might also handle "bad faith Section 512 notices" (i.e., DMCA takedowns) is designed to appease people who are concerned about the chilling effects here, but it's not clear that will help very much.
Also, somewhat bizarre is that earlier in the document (which we'll get to), they say that the Copyright Office should remain in the legislative branch. Which would then make this small claims court a part of the legislative branch. And that just seems... weird. I guess that's why they refer to it as a small claims "system" rather than a small claims "court."
The issue that's going to get more attention, however, is the attempt to pull the Copyright Office away from the Librarian of Congress' control. This has been something that the Copyright Office itself (and Hollywood and its friends) have been agitating for for some time. The proposal here looks like (again) the Judiciary Committee wants to thread the needle of not technically moving it out of the Library of Congress (the proposal doesn't say one way or the other), but basically giving the Copyright Office full autonomy from the Library, and making the head of the Copyright Office subject to Congressional appointment, rather than at the will of the Librarian of Congress:
The Register of Copyrights and Copyright Office Structure
The Copyright Office should remain part of the Legislative Branch where it can provide independent and timely advice
to Congress on copyright law and policy. Furthermore, the Copyright Office should have autonomy over its budget and
technology needs.
Currently, the Register is not subject to the same nomination and consent process as other senior government officials.
To ensure that the American people have an opportunity to provide input into the selection of future Registers of
Copyright through their elected officials, the next Register and all that follow should be subject to a nomination and
consent process with a 10-year term limit, subject to potential re-nomination. The Copyright Office should also add
several positions to advise the Register including a Chief Economist, Chief Technologist, and a Deputy Register.
Copyright Office Advisory Committees
As copyright creation and distribution rapidly changes due to technological advances, the Copyright Office needs to have
quicker information regarding marketplace changes as it develops policies and provides guidance to federal agencies.
Other federal agencies have standing advisory committees that enable a more efficient knowledge transfer from the
private sector to federal agencies. This model should be duplicated at the Copyright Office.
The Copyright Office of the future should have a combination of permanent and ad-hoc advisory committees
to advise the Register on critical issues. Members of these committees should reflect a wide range of views and
interests. Permanent advisory committees should be created that focus on issues that include but are not limited to
the registration and recordation system, public outreach efforts, access for the visually impaired, and issues related to
libraries, museums, and archives. To ensure that a diverse set of voices is represented, committee membership should be
term limited and the ability of individuals to serve on more than one committee should be limited.
The advisory committee plan again seems like it's trying to appease all sides, but one wonders how it will work in practice. As we've seen with the USTR, the advisory committees have become basically captured by industry lobbyists (despite rules against lobbyists being on those committees), and the end result is that the USTR tends to take instruction from a small group of large, entrenched interests, rather than the public. It seems likely that the same thing would happen here. A Chief Economist is also a loaded position. There are plenty of economists who would look at the actual public benefit to different copyright proposals, but too many economists are likely to just focus on the topline monetary impact on legacy industries, painting a skewed portrait and continuing the false notion that the point of the Copyright Office is to create more and more copyrights, rather than create a plan that actually "promotes the progress of science" as the Constitution requires.
Since the Judiciary Committee insists that this is just them putting out some ideas for comment, it's going to be important that we let them know the many, many pitfalls of these suggestions -- and let them recognize that if these plans are, as seems likely, weighted just to benefit a legacy industry that has a history of fighting innovation -- that will not be acceptable to the public.
Congress has mostly stayed away from any attempt at copyright reform since the great SOPA blackout of 2012, afraid that anything will set off the public again. However, in 2013, Copyright Register Maria Pallante called on Congress to create the "next great copyright act" designed to update copyright for the 21st century. The House Judiciary Committee has been holding hearings and roundtables every few months since then, some of which have been more encouraging than others.
Copyright law is clearly broken and a true fix for the 21st century would be welcome. But what are the chances that Congress would actually do a good job, rather than make it worse? Well, we may soon find out. Yesterday, Rep. Bob Goodlatte put out a statement and a video claiming that they're finally ready to start releasing some proposals:
Goodlatte lists out a bunch of things that have been discussed, and then notes that he'll be focused initially on releasing proposals where he believes there is some "consensus":
In the weeks ahead, we will identify areas where there is a likelihood of potential consensus and circulate outlines of potential reforms in those areas. Then we will convene stakeholders for further work on these potential reforms.
And you have my personal commitment that as the review shifts to more focused work on potential reforms, the process will be transparent and the Committee will continue to ensure that all interested parties have the opportunity to weigh in on issues of concern to them. Our copyright system deserves no less.
The way that's put obviously sounds better than the way things have been done in the past, where the legacy industry basically wrote the bills for Congress, and our elected officials just put their names on it. But I'm still concerned with the framing of this whole thing. Goodlatte's talk continues to falsely suggest that copyright policy is about copyright holders vs. the public:
...it is critical that Congress understand the overall impact of any changes in copyright law before proceeding with formally introduced legislation. It is also clear that neither a solely copyright owner focused bill, nor a copyright user focused bill, could be enacted by Congress today, nor should they be.
But, again, as we've been explaining for years, thinking of copyright in such zero sum terms is the wrong way to go about it. A proper copyright system, focused on "promoting the progress of science" shouldn't put the best interests of either party at risk. These interests should be aligned. The public benefit of copyright should be to encourage creators to create and for that content to spread and be experienced. We should be looking at what kinds of policies best lead to that outcome. Instead, because of past history and the mental framework that the Judiciary Committee has had since the beginning, it seems that they want to set this up as a fight between Hollywood (representing "copyright holders") and the tech industry (which they're using as a weak and misleading proxy for "the public.") The actual public is not involved. Nor are many actual creators.
There are, of course, cynical political reasons for doing this. Congress learned years ago that if you want to get a big pile of donations, the best thing to do is to hint at a bill that would put two large industry in conflict with one another. Then both feel compelled to fund politicians campaign warchests.
But that leads to bad policy. It leads to policy based on the interests of funders and industry, rather than the public. Again, the purpose of copyright law is to benefit the public by creating incentives for content creators. The interests of content creators and the public should (and absolutely could) be aligned in all of this. Let's create systems that encourage the creation and distribution of content, without treating the public as criminals.
Let's hope that's actually what Goodlatte and the Judiciary Committee have in mind, but from the framing he has used so far, I'm concerned that what comes out of this is likely to be something else.
Congressional hearings involving law enforcement and intelligence folks tend to be fawning affairs, with most of Congress willing to accept whatever these guys have to say. Sure, you'll always have a few people critical of certain aspects, but generally speaking, Congress is especially friendly to the FBI, NSA, CIA, etc. So it must have come as a bit of a shock to FBI Director James Comey that during a long House Judiciary Committee hearing yesterday, they seemed pretty pissed off at Comey's belief that the courts should force Apple to help him open up encrypted iPhones.
One judiciary member questioned how the FBI managed to mess up so badly during the San Bernardino investigation and reset the shooter’s password, which is what kicked this whole controversy and court case in motion in the first place. And if the case was such an emergency, why did they wait 50 days to go to court? Another member questioned what happens when China inevitably asks for the same extraordinary powers the FBI is demanding now. Others questioned whether the FBI had really used all the resources available to break into the phone without Apple’s help. For example, why hasn’t the FBI attempted to get the NSA’s help to get into the phone, since hacking is their job?
[....]
More than anything, though, the members of Congress expressed anger that the FBI director didn’t follow through earlier on his stated intention to engage in a debate in Congress and the public about the proper role for encryption in society. Instead, he decided to circumvent that debate altogether and quietly go to court to get a judge to do what the legislative branch has so far refused to do.
In some cases, they directly called out Comey for appearing to use the San Bernardino tragedy for political purposes:
“I would be deeply disappointed if it turns out the government is found to be exploiting a national tragedy to pursue a change in the law,” Rep. John Conyers (D-MI) told Comey.
[....]
“But what concerns me, Mr. Chairman, is that in the middle of an ongoing Congressional debate on this subject, the Federal Bureau of Investigation would ask a federal magistrate to give them the special access to secure products that this committee, this Congress, and the administration have so far refused to provide,” he said. “Why has the government taken this step and forced this issue?”
He went on to speculate that the reason could be found in an email from “a senior lawyer in the intelligence community,” obtained and published in part by the Washington Post in September 2015. The email said that the “the legislative environment [with respect to mandating backdoors] is very hostile today,” but that “it could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement.”
“I’m deeply concerned by this cynical mindset,” said Conyers, implying that the Department of Justice and the FBI might be exploiting the San Bernardino attacks in order to mandate backdoors.
To be fair, contrary to what some articles are saying, this is not the first time Congress has been skeptical about the FBI's view on the encryption wars. A little less than a year ago, a hearing set up by a different committee, the House Oversight Committee included some similar points with Congressional reps being quite skeptical of the claims by law enforcement about the need for encryption backdoors. However, the drumbeat from Congress appears to be getting louder -- and that's a good thing.
Of course, some of the annoyance from Congress appears to just be about who gets to decide what happens here. That is, some of the anger seemed to be over the DOJ's decision to rush to the judicial branch, rather than let the legislative branch figure out what it wants to do. However, there's definitely a clear (and, amazingly, bipartisan) group of folks in Congress who recognize that the FBI's arguments about how it "needs" this information is a bunch of hogwash.
