Day After Senator Lindsey Graham Is Credibly Accused Of Trying To Undermine The Election, He Hosts Hearing Attacking Social Media For Undermining Election

from the this-is-all-so-dumb dept

The timing on this is quite incredible. On Monday, Georgia's (Republican) Secretary of State, Brad Raffensperger, spoke out, saying that Senator Lindsey Graham had called him and implied that Raffensperger should look to throw out ballots that were legally cast in the state. On Tuesday morning, in trying to defend his efforts to undermine the election, Graham tried to shake off his calls with Raffensperger as no big deal, saying that he also spoke to Arizona and Nevada election officials. This does not make things better. Indeed, it actually seems to make things worse (and that's even after Arizona's Secretary of State, Katie Hobbs, claimed that Graham's claims were "false" and she never spoke to him.

All of this certainly seems like cause for concern about election interference and tampering. Indeed, it's the kind of thing a good government would at least investigate. And, in a stroke of good timing, the Senate Judiciary Committee was all set up on Wednesday to host a hearing about the 2020 Election and "suppression." Except... this hearing was organized and chaired by the very same Senator Lindsey Graham, and was yet another dog and pony show of internet CEOs having to defend specific content moderation choices.

Now a sane person who loosely follows the news might be saying "wait, didn't we just do that last month?" And you'd be right. Just a few weeks ago, there was an almost identical hearing. Both hearings had Facebook CEO Mark Zuckerberg and Twitter CEO Jack Dorsey (the earlier hearing also had Google's Sundar Pichai). Both hearings featured a bunch of grandstanding and often clueless Senators demanding to know specific answers to why the websites did or did not moderate specific pieces of content.

But this time it was the Senate Judiciary Committee, as compared to the Senate Commerce Committee last time. There were a few overlapping guests -- including Senators Ted Cruz, Mike Lee, and Marsha Blackburn. This one also included Senator Josh Hawley who grandstands with the best of them over this issue. Cruz and Lee basically did a warmed over, half-baked rehash of their performances from a few weeks ago. Hawley's performance was particularly stupid. He claimed to have heard from a "whistleblower" inside Facebook and posted two grainy screenshots of internal Facebook tools. One was its "Tasks" tool, which is a general company-wide task manager tool, which Hawley used to imply that Facebook, Twitter and Google are some how colluding to figure out which users, hashtags, and content they're going to suppress.

This is not how any of this works. Hawley demanded that Zuckerberg turn over every mention of Google or Twitter in their Tasks tool, and Zuck quite reasonably pointed out that he couldn't commit to that without knowing what sort of sensitive information might be involved. This is basically the equivalent of Hawley asking for every email that mentions Twitter or Google. It's an insane and intrusive request, though he threatened to subpoena the company if Zuckerberg wouldn't comply. Hawley then demanded to know if any Facebook employees ever communicate with Twitter or Google.

Zuckerberg, again, quite reasonably, pointed out that he's sure that people who work in trust and safety at some point or another know of people in similar roles at other companies and he's sure at some point or another some of them communicate with each other, but that's quite different than plotting over what content to block as Hawley kept insisting. Hawley then trotted out another screenshot of some other internal tool that Zuckerberg says he didn't recognize and thus couldn't answer any questions about -- which Hawley again pretended to be some damning evasiveness from the CEO. What it actually suggested is that this is not a very important tool, and Hawley is clearly overstating what it's used for.

Oh, and Hawley, ridiculously, insisted on calling the trust and safety teams at these companies "censorship teams," and implying that they deliberately try to silence ideological content (they do not). Of course, what's truly crazy is that many of the half-dozen or so different Section 230 reform bills that Hawley has introduced in the Senate would actually require more content takedowns than we have today. But you can't be a demagoguing populist without demagoguing while the cameras are on, and Hawley played his part.

If you'd like to read my play-by-play response to the entire hearing as it happened, I have a very long Twitter thread:

Or if you're truly a glutton for punishment, you can watch the entire 4 hours and 43 minutes of the hearing but I do not recommend that for your own sanity:

Like other hearings involving the internet, this hearing was big on rhetoric, ignorance on the part of the senators and no clear urgent need for such a hearing right now. For the most part, you had Republican senators mad about choices to moderate certain content (or to make decisions too quickly that later turned out to be mistaken), while Democratic senators were mad about choices not to moderate other content (or to make decisions too slowly). In other words, they see this debate as a sort of tug o' war, with the companies as the rope, and their main hope is to influence content moderation to work the way they want it to work, if they could wave a magic wand and just enable the content that they and their supporters want.

We should see this entire thing as an affront to the 1st Amendment. Demanding changes (in either direction) to the content moderation practices of private websites is a massive 1st Amendment issue. Imagine if Democratic senators called in Fox News execs to complain about story choices? Or Republicans did the same with the NY Times. 1st Amendment and free press people would be reasonably up in arms over this gross abuse of power over something that the Constitution deliberately and clearly says Congress has no authority over.

So why do we let them do this to social media companies?

Much of the hearing was little more than moral panic claim after moral panic claim, highlighting the nature and problems of society itself -- and then pinning the blame on social media. It's the same moral panic we've seen play out over and over again for centuries. Some new medium comes about, and people use it. Some people use it for things that upset other people, and rather than look at the underlying causes, it's easier to blame the messenger.

It's as disappointing as it is predictable.

And chances are it's only going to continue. Towards the end of the hearing Senator Thom Tillis (and Senator Chris Coons) suggested that both Zuckerberg and Dorsey should commit to returning again next month. And Senator Richard Blumenthal even laughed mirthfully in closing out the hearing by saying he fully expected there to be many, many more hearings with these execs.

It's all for show. The senators want to be seen to be doing something and picking on these platforms is a welcome distraction from actual problems in society -- including a president who refuses to concede in the election he lost, the quarter of a million (and climbing) dead people from a botched COVID response (and the lack of any real effort to deal with COVID as it sweeps across the country again), and so many other things. Rather than facing actual problems facing society, Senator Lindsey Graham and his colleagues have decided that it's best to play "look! squirrel!" and insist that the biggest problem of today is that Twitter and Facebook want to fact check the president when he spews nonsense and dangerous conspiracy theories.

Filed Under: congress, content moderation, jack dorsey, josh hawley, lindsey graham, mark zuckerberg, marsha blackburn, section 230, senate judiciary committee, ted cruz
Companies: facebook, twitter

Terrible, Dangerous EARN IT Act Set To Move Forward In The Senate; Attack On Both Encryption And Free Speech Online

from the bad,-no,-bad,-stop-it dept

The attacks never stop. After rumors last week, the Senate Judiciary Committee has officially put the EARN IT Act onto the schedule for this week, though many expect that it will get held over and marked up next week on July 2nd, which, conveniently, is a neat time to sneak through legislation when lots of people are not paying any attention (right before July 4th). In short, this means that there's a decent chance the EARN IT bill will be moving forward and could potentially pass.

This would be very, very bad. I won't go back over everything in it, but the general intent of the bill is to undermine both encryption and Section 230 by trying to make Section 230 dependent on not offering encryption. That's at the highest level. Now, the bill is written in a sneaky way to let some Senators pretend it won't impact encryption, since encryption is not mentioned in the bill. However, the bill does condition 230 protections on meeting certain "best practices" that would be developed through a process mostly controlled by the Attorney General, who has made it clear his number one priority regarding the internet is to kill off real encryption. As we've discussed, the EARN IT Act creates a very dangerous moderator's dilemma that will act to suppress both free speech online and the ability to communicate securely and privately.

And beyond moving forward with such a bad proposal, and trying to sneak it through during a holiday week, it's astounding that this is happening right at the very moment when more people than ever are relying on the internet to work from home -- a situation in which open speech platforms and strong encryption are more important than ever. Indeed, Senator Blumenthal, one of the sponsors of the bill who insisted it wouldn't be used to target encryption, is the same senator who got angry when he found out Zoom video calls weren't end-to-end encrypted.

If he wants to support encryption and promise that EARN IT won't be used to undermine encryption, he should write that explicitly into the law.

In short, the EARN IT Act would:

• Put encryption, privacy, and cybersecurity at risk at a time when we need all three things more than ever.
• Put free speech and open internet platforms at risk, at a time when people need to be able to speak out more than ever.
• Not do a damn thing to actually make anyone safer
• Create a constitutional mess, that might even make it easier for bad actors to get away with things by turning companies into state actors with regards to private info, thereby creating 4th Amendment issues regarding disclosure of information.

It is extremely unclear why anyone thinks (1) this is a good bill, or (2) it needs to move forward right now. But, since everyone wants to hate on Section 230 right now, none of that seems to matter.

Filed Under: earn it, encryption, free speech, privacy, section 230, security, senate judiciary committee

The Senate Summoned The Wrong Time Warner To Talk About AT&T Merger

from the really-guys? dept

The big news earlier this week, of course, was AT&T's announced plans to purchase Time Warner. As we, and plenty of others, were careful to point out, Time Warner is a different and totally separate company from Time Warner Cable (which Comcast famously tried to takeover not that long ago). Yes, at one time they were the same company, but that was a long, long time ago. They've been separate since 2009. And yet, lots of people still get them confused. In fact, soon after the announcement of the deal, AT&T had to do a special filing with the SEC to clarify which Time Warner it was buying. Really. Apparently, the Senate didn't get the memo (literally). The Senate Judiciary Committee's top four members (from both parties) put out a press release from the antitrust subcomittee, saying that it was going to hold hearings on the merger, and that the CEOs of both companies would be testifying. But they named the CEO of Time Warner Cable, not Time Warner.

Despite striking an $85.4 billion deal with AT&T Inc. over the weekend, [Time Warner CEO Jeff] Bewkes was unceremoniously left out of a release from the Senate Judiciary Antitrust Subcommittee, which said the CEOs of both companies would testify at a hearing on the proposed deal.

The reason? The four top Republicans and Democrats leading the Senate Judiciary Committee and its antitrust subcommittee accidentally invited Time Warner Cable’s former CEO Rob Marcus instead.

“Both Randall Stephenson, the CEO of AT&T, and Robert Marcus, the CEO of Time Warner, will testify,” the release said. The hearing announcement was sent by Sen. Chuck Grassley, Sen. Patrick Leahy, Sen. Mike Lee and Sen. Amy Klobuchar.

You'd think someone would have checked that.

Oh, and it's even worse than it seems, because Rob Marcus isn't CEO of either Time Warner or Time Warner Cable. He left Time Warner Cable after Charter Communications completed its deal.

And this is why so few people trust Congress. Congress is quick to opine on stuff that it regulates without doing even having the most basic understanding of what's going on. Summoning the wrong CEO of the wrong company is a pretty impressive flub.

Filed Under: amy klobuchar, antitrust, chuck grassley, confusiong, jeff bewkes, merger, mike lee, patrick leahy, randall stephenson, rob marcus, senate, senate judiciary committee
Companies: at&t, time warner, time warner cable

FBI's James Comey: I Know All The Experts Insist Backdooring Encryption Is A Bad Idea, But Maybe It's Because They Haven't Really Tried

from the that's-the-spirit dept

As was widely expected, FBI Director James Comey appeared before two separate Senate Committees yesterday -- the Judiciary and the Intelligence Committees -- to talk about the "risks" of "going dark" if the government is not allowed to backdoor encryption. You can watch the Judiciary Committee hearing and the Intelligence Committee hearing at those two links. I'd embed the videos here on Techdirt as well, but I can't because (guess what?) neither offers an encrypted HTTPS version, so they wouldn't appear on our site, since we force HTTPS connections.

Most of Comey's comments were pretty much what you'd expect him to say, with a few clear themes repeated over and over again:

• American ingenuity is great, so I don't really believe all these computer science experts who say that it's "too hard" to give the government access. I think they haven't really tried.
• I don't have a proposal myself (which experts would ridicule for the problems it would create), but rather I'm just trying to "start a conversation" on this.
• We have no data to actually support the fact that encrypted communication has become a real problem, but I can tell you scary stories about (boo!) ISIS.

That was about the crux of it. There were a few times where he would kind of admit that maybe, just maybe the computer scientists were right, but he still thinks they could try harder. The most ridiculous was where he literally said:

"Maybe the scientists are right. But, I’m not willing to give up on that yet."

Earlier in that same hearing, he said:

"A whole lot of good people have said it’s too hard … maybe that's so.... But my reaction to that is: I’m not sure they’ve really tried."

There are a few problems with all of this. First, he keeps claiming that people are saying it's "too hard." But they're not. They're saying it's impossible to give him what he wants without seriously undermining the basic foundations of private communications online. And that's not just private communications in the form of messaging, but also financial transactions, medical records, business dealings and the like. In short, the "solution" the FBI wants puts everyone at risk.

The second big problem is that it's fairly stunning that Comey keeps insisting that those bright minds in Silicon Valley can sprinkle some magic pixie dust and give him what he wants, but at the same time claims it's too difficult for the FBI to actually quantify how big a problem encryption is for its investigations. Furthermore, he can't even provide a single real world example for where encryption has been a real problem. Even when pushed on this, he noted that when the FBI comes across encrypted communications, they move on to other avenues to investigate those individuals. Which sounds a lot like encryption really isn't that big of a problem.

The lack of an actual proposal, and the idea that he's just "starting a conversation" is equally ridiculous, since this conversation was conducted twenty years ago and it was shown what a bad idea it was to backdoor encryption. The idea that we need to do this all over again is just stupid.

Two other quick comments: A few times Comey noted that some big companies are able to encrypt data, but still get access to the underlying content. He used this to argue that it's "possible." But he leaves out the fact that those are not end-to-end encryption, but something different entirely which is much less secure than end-to-end encryption. He's comparing two very different things without recognizing the massive trade off in security associated with what he's talking about. His technical ignorance -- which he underlined multiple times, is kind of bizarre. If he admits he's so ignorant, why does he brush off the arguments from people who have been in this field working on these issues for decades.

The other comment: multiple times he and some of the Senators hinted that the FBI actually stopped some sort of nefarious plot that was supposed to happen on July 4th weekend. As we noted, despite lots of hype on cable news, the FBI has been making these kinds of failed predictions ever since 9/11 without a single one turning out to be accurate. So it seemed curious that he and others kept hinting at the idea that the FBI had to work overtime last week to actually stop an attack. If true, then you'd think there would be an arrest somewhere, but nothing appears to have been announced. It seems likely that this was just more FUD, but we'll be curious to see if the FBI ever explains something that it actually did to prevent a real attack.

We'll likely have a few more posts about some of what was discussed at the hearing a little later. But it's not just troubling that Director Comey is pushing for efforts to backdoor encryption, he's wasting the time of lots and lots of smart people who should be focusing on making our communications more secure, rather than proving to Comey and elected officials how ridiculously short-sighted it is to make communications less secure.

Filed Under: backdoors, encryption, experts, james comey, security, senate intelligence committee, senate judiciary committee

Revolving Door: Main Architect Of PIPA (Senate Version Of SOPA) Now... Lobbying For The MPAA

from the just-swings-around-and-around-and-around dept

A couple of years ago, we wrote about an interview with disgraced lobbyist Jack Abramoff, in which he explained one of his most effective strategies in getting legislation in his favor. The key trick: find key staffers working for elected officials and tell them they had a job waiting for them whenever they wanted it. Here was the key bit:

And he would ask them: "When do you want to start?" If they said "two years," he knew that the guy was already working for him, but on the inside. As he says "I really hired him that day," even though he went on for two more years working as a chief-of-staff to someone in Congress.

Just yesterday, we wrote about Rep. Howard Berman -- famous for his support of ever expanding copyright law -- who has now been hired to lobby for the MPAA. Berman, the former Congressman, is obviously the headline piece. But, along with that news came some further news that didn't get as much attention -- which is that in hiring the firm that Berman works for, Covington & Burling, the MPAA didn't just hire Berman, but also Aaron Cooper, who was Senator Patrick Leahy's chief intellectual property staffer, and the main guy behind the PROTECT IP Act (PIPA), the Senate's version of SOPA.

The MPAA, of course, was the main driving lobbying force (along with the US Chamber of Commerce) to get SOPA/PIPA approved. And here we are, just a couple of years later, and the Congressional staffer who was the main internal architect of that bill is... now officially paid by the MPAA. The old "revolving door" continues to swing round and round. Jack Abramoff would be proud.

Filed Under: aaron cooper, howard berman, lobbying, pipa, protect ip, revolving door, senate judiciary committee, sopa
Companies: covington & burling, mpaa

Can Senator Leahy Actually Get Anything Done To Help With Civil Liberties And Innovation?

from the weakest-'powerful'-senator dept

Senator Patrick Leahy is often considered one of the most powerful Senators. He's the most senior Senator, third in the presidential line of succession (after the VP and the Speaker of the House) and the head of the powerful Senate Judiciary Committee. He's often presented as a "friend" to both the technology and civil liberties communities -- even though many in both of those communities still view him skeptically for his all out support for dangerous copyright legislation in the PROTECT IP Act (PIPA), which would have seriously messed with the underlying DNS structure of the internet. Even so, on a variety of other issues, including NSA reform, ECPA reform and patent reform, he's often been seen as leading the charge.

But over and over again, it seems that charge is... to go nowhere.

Politico has a story about how last week was a disaster for the tech industry in Washington DC. For all the talk about how Silicon Valley has been flexing its lobbying power, patent reform was killed, a good NSA reform bill was replaced with a bad one (leading the tech industry to pull its support) and the fight for immigration reform went the way it normally does -- nowhere beyond people yelling at each other.

But what I found even more interesting is just how powerless the "powerful" Senator seems to be on so many of these issues. Leahy has been the leading Senate voice for ECPA reform (requiring a warrant to search your electronic data) for years -- and it has pretty widespread support. And yet, he's unable to get it to move forward because the the SEC and IRS want to be able to read emails without a warrant. Really?

Similarly, for over a decade, Leahy has been the point person on patent reform in the Senate, promising to finally reform the system to stop abusive patents. The bill he finally got through in 2011 did absolutely nothing after it was watered down and watered down and watered down some more. And this year, when it looked like there might finally be a bill with at least a little (not nearly enough) progress towards stifling abusive patent practices, he got completely shut down by the trial lawyers and Harry Reid.

And, now we're basically relying on Senator Leahy to fix the NSA reform package. He introduced the companion to the USA Freedom Act in the Senate, and many in the tech and civil liberties communities are hopeful that Leahy will stand firm in actually reforming the NSA. And while he's been saying all the right things about reforming the NSA, given his track record, you have to start to wonder: can this super powerful Senator actually get this done right?

Yes, getting anything done in Congress is a pretty difficult process these days (perhaps for good reason). But we keep hearing about how Senator Leahy is so powerful and such a friend to innovation and civil liberties. But over the past few years, it's been a lot of tough talk, and nothing ever seems to actually get done. It really begins to make you wonder if he's such a "friend" to these communities after all.

Filed Under: civil liberties, ecpa, ecpa reform, patent reform, patents, patrick leahy, politics, senate judiciary committee, usa freedom

Inspector General For Intelligence Community Rejects Congress' Request To Investigate The NSA

from the oversight! dept

Remember, kids, how the NSA and its defenders keep talking about how much oversight there is? One part of that is the inspector general who is supposed to make sure that the NSA isn't going rogue. Except... now that the Judiciary Committee asked the intelligence community Inspector General Charles McCullough to investigate the NSA's dragnet data collections, he's told them he just can't do it, according to a recent report at Politico.

“At present, we are not resourced to conduct the requested review within the requested timeframe,” wrote McCullough, before adding he and other agency inspectors general are weighing now whether they can combine forces on a larger probe.

Not surprisingly, those who asked for the help, are not pleased. Senator Pat Leahy appears particularly angry about this:

That response didn’t sit well with Leahy, who raised the letter during a scathing speech on the Senate floor Wednesday that slammed the intelligence community for a “trust deficit.” Leahy also emphasized his belief that “the American people are rightly concerned that their private information could be swept up into a massive database, and then compromised.”

While it may be true that McCullough does not have significant resources to do this kind of investigation, that really just highlights the problem. There clearly is not sufficient oversight over the NSA's activities. The fact that the very person in charge of this kind of investigation, when told to do it by Congress, says he can't, should demonstrate just how little actual oversight there is. Perhaps instead of putting more money towards stopping the next Ed Snowden, the Senate should give that money to the inspector general to investigate the NSA and encourage the next Ed Snowden to come forward.

Filed Under: charles mccullough, inspector general, nsa, nsa surveillance, oversight, pat leahy, senate judiciary committee

Senator Leahy Calls Bulls**t On Claim That Metadata Collection Stopped Terrorist Attacks

from the good-for-him dept

One of the key claims that defenders of the NSA bulk data collection keep making is that the program was necessary to stop various terrorist "events" (note the careful choice of the word "events" rather than "attacks"). In fact, last week in arguing against the Amash Amendment, Rep. Mike Rogers directly claimed that "54 times this and the other program stopped and thwarted terrorist attacks." Of course, as we pointed out, he carefully added the "and the other program" to make it seem like the bulk data collection program being debated was necessary. Amazingly, that claim of 54 terrorist "events" is significantly more than what intelligence officials have claimed. They say it's more like 13. Yet, yesterday, Senators Ron Wyden and Mark Udall both said that there was no evidence to support this, and at this morning's Senate Judiciary Committee hearings about the surveillance program, Senator Patrick Leahy was fairly direct in making it clear that what Rogers claimed last week was completely bogus:

"If this program is not effective, it has to end," Leahy said, noting that a classified list of uses of the phone record program "does not reflect dozens or even several terrorist plots that Section 215 helped thwart or prevent, let alone 54 as some have suggested."

Perhaps Rep. Mike Rogers' staffers -- rather than threatening me with bogus defamation claims -- should focus on having their own boss not mislead Congress and the American public. Wouldn't that be nice?

Much of the rest of the hearing suggested, yet again, that Congress simply doesn't believe intelligence officials and the administration (and the dwindling number of defenders of this surveillance) any more, as multiple Senators discussed introducing bills to limit the surveillance, and noted various problems with the programs.

Sen. Jeff Flake, R-Ariz., raised the prospect of creating an independent counsel to consider surveillance requests presented to the secret Foreign Intelligence Surveillance Court to guard against potential privacy violations.

"Don't you think we have left the state relevance?'' Sen. Mike Lee, R-Utah, asked, suggesting that the mass records collection was too large to be an effective counter-terrorism tool.

"How can one get one's mind around the concept (of) that amount of data?'' Lee said.

Said Sen. Richard Blumenthal, D-Conn.: "It appears this system is failing in maintaining the trust and credibility of the American people.''

[....]

"When you look at the reach of this (phone record collection) program, it envelopes a substantial number of Americans,'' said Sen. Richard Durbin, D-Ill. "It seems to me that what is being described as a very narrow program is a very broad program.''

"There are going to be some proposals for changes to the law,'' Leahy said.

Intelligence officials tried to defend the program, but it didn't seem to win many people over. There was lots of talk of "connecting the dots" and "finding needles in haystacks," but considering the lack of evidence that the program actually helps with either of those things, they didn't make a very convincing case. Of course, the best response to all of this came, sarcastically, from Julian Sanchez's commentary on the hearings:

The only people who spend THIS much time "looking for needles" are addicts...

So true. Time to get intelligence officials into rehab.

Filed Under: metadata, mike rogers, nsa, nsa surveillance, patrick leahy, section 215, senate judiciary committee, surveillance, terrorism

Senator Leahy Still Insisting That SOPA/PIPA Are 'Needed'

from the out-of-touch dept

It appears that Senator Patrick Leahy has learned absolutely nothing from the public outcry over his ridiculously overreaching PROTECT IP Act (PIPA). At a Senate Judiciary Committee hearing, in which the White House IP Czar, Victoria Espinel, suggested that perhaps the "problem" was solving itself via voluntary action, Senator Leahy continued to insist that legislation like PIPA was needed:

“Voluntary efforts are wonderful and I am hoping the voluntary efforts will give us some confidence for the legislation we need, because ultimately we still need legislation.” Leahy said.

This is really ridiculous. He isn't just saying that PIPA is needed, but he's arguing that the market working these things out on its own is evidence to support the need for legislation. How does that make any sense at all? What's clear is that Leahy still doesn't understand why PIPA was defeated or why there was so much concern (and so little legitimate rationale) for the legislation in the first place.

Filed Under: patrick leahy, pipa, senate judiciary committee, sopa, victoria espinel