Former FCC Boss Wheeler Says Trump FCC Napped On Cybersecurity

from the asleep-at-the-wheel dept

As we've made clear by now, the FCC under Trump spent four straight years kissing monopoly ass. From eliminating decades-old rules protecting consumers and competitors from the harms of media consolidation to gutting the FCC's consumer protection authority simply because AT&T and Comcast wanted it done, the agency under Pai was a textbook example of regulatory capture. There were a few high points (like the creation of a national suicide hotline), but by and large the FCC under Pai was just a mindless rubber stamp for the industry's wealthiest players.

While the Pai FCC was busy doing whatever AT&T and Comcast wanted, a lot of stuff those companies didn't care about fell off the table. Like any real rules governing the massive light pollution caused by low orbit satellites. Or any support for policies that would competitively challenge entrenched incumbents. And according to former FCC boss Tom Wheeler, a little thing called cybersecurity (more specifically, funds directed at smaller competitors to help them secure their networks):

"We are currently failing to use efficient regulatory mechanisms to oversee the security of these networks. The Department of Homeland Security has the expertise but lacks the regulatory authority of an agency such as the Federal Communications Commission. Yet, for the past four years, the Trump FCC was asleep at the switch, gutting cyber programs and refusing to exercise its authority."

The FCC has largely been a no show on the security and privacy issues plaguing the internet of broken things. And as Congress prepares to throw another $100 billion at America's broadband problem, Wheeler's worried that the funds won't come with any aid to shore up network cybersecurity. While a company like Comcast may not want or need that help, Wheeler argues that smaller broadband providers are going to need aid ensuring they're protected from the growing threat of cyberattacks like the one that just rocked Cox Media Group:

"It is precisely these factors that make such small rural companies prime targets for cyber hackers. The companies typically have fewer than 100 employees — some fewer than 10 — and often cannot afford dedicated cybersecurity personnel or cutting-edge defensive technology."

Of course lobbyists for incumbent giants like Comcast and AT&T are busy shaping what the final broadband bill looks like. That already means not only less money overall, but more subsidies sent to giant players, and less money sent to smaller companies -- especially if they're going to be providing any competitive challenge to incumbents. But throwing yet more money at broadband providers (an approach that already historically hasn't worked out that well for taxpayers) without providing funds to secure them could spell trouble as ransomware and other attacks increasingly target the most ill-prepared.

Filed Under: ajit pai, cybersecurity, fcc, tom wheeler

Ajit Pai Should Not Still Have His Government Twitter Account

from the left-the-agency-but-kept-his-followers dept

You are probably familiar with Ajit Pai, the former head of the Federal Communications Commission (FCC) famous for killing net neutrality rules, doing the Harlem Shake in a Daily Caller video, and drinking from an oversized coffee mug to appear funny and relatable.

You may be less familiar with Ajit Pai’s work on Twitter. Pai is proud of his Twitter use, and he likes to brag that he was the “first [FCC] Commissioner on Twitter” (he set up @ajitpaiFCC the day he joined the FCC). Pai has sent over 31,000 tweets since creating his account in 2012.

But there’s something different about his account recently. Pai’s FCC account was created when he joined the FCC, and he used it to discuss his FCC work. After Pai resigned on January 20, 2021, the common practice at other agencies would be for Pai to stop using @AjitPaiFCC, since he was no longer Ajit Pai at the FCC. But instead, Pai removed “FCC” from his handle and kept tweeting.

Pai isn’t the first former FCC commissioner to do this. Former Commissioners Mignon Clyburn and Mike O’Rielly also seem to have kept the accounts they created at the FCC.

That may not be legal. Let’s use Pai as an example:

Ajit Pai Created His Twitter for Government Work

While Ajit Pai was at the FCC, his Twitter account was his official persona. He created his account on his first day at the FCC and put “FCC” in his handle. His profile listed his position and linked to his FCC webpage. He tweeted about FCC work while sitting in the FCC building during FCC business hours. And the FCC linked his Twitter account on the FCC website next to his other government accounts, like his FCC email address and blog.

Source: January 18, 2013 capture from the Wayback Machine

When government officials use social media for government work, they have to follow rules around public records preservation and limits on what they can say. The National Archives issued guidance on this way back in 2013. Some officials use personal accounts to tweet about sports or food and go out of their way to emphasize when the account is personal, like “tweets my own” or “not an official account.”

Pai didn’t do that: this was his work account. He tweeted about the FCC “making progress” on 911 dialing from hotels, shared his official FCC remarks about the FCC’s Lifeline program, and criticized an FCC decision he disagreed with. Not every tweet was about the FCC (he wished Bob Barker a happy birthday), but it was pretty clear that a tweet from @ajitpaiFCC was from the Ajit Pai appointed to the FCC by the president and not Ajit Pai the fun dad.

Instead of closing his FCC Twitter account (@AjitPaiFCC) when he left the FCC and moving to his existing personal one (@AjitPai), he kept both and changed their names. His government account, with 83,000 followers, became @AjitPai, and his personal account with fewer than 3,000 followers became @AjitPai_.

There are two problems with that. First, when Pai used the FCC account, his tweets were public records, subject to the Freedom of Information Act (FOIA). The FCC has to preserve the tweets for a set time period to comply with the law. With Pai controlling the account, the FCC can’t stop Pai from deleting old tweets whenever he wants. Second, because the account was created on government time for government use, it is government property. It was not Pai’s to take.

Ajit Pai’s Tweets Are Public Records, and You Have a Right to See Them

When government employees create material for government business, like emails or reports, those documents are federal records. Under the Federal Records Act, records must be saved for a set time period. An email from a low-level government employee might be saved for a few years, but communications from high-level officials are special and may need to be saved forever by the National Archives. The five FCC commissioners run the agency, so you would expect their official statements on social media to be treated as important records.

Most agencies deal with this by controlling the official’s Twitter account after that person leaves. This preserves the official communications from the then-public official to the public about their public service. That’s why if you look at Twitter accounts from former federal leaders, you’ll see that almost all of them are inactive.

Except Pai’s.

One of these things is not like the others (it’s @AjitPai)

Ajit Pai, now a private citizen, still has control over the records he created while serving as a public official. Usually, the First Amendment prevents government accounts from blocking social media critics. If you want to interact with his old FCC tweets, you better hope he didn’t block you for disagreeing with him in the past.

Or, if you’re me, two weeks after filing a FOIA request for Pai’s tweets you’ll see this:

It is harder to write about federal records when you are blocked from seeing them.

This isn’t how federal records law works. Pai’s tweets are public records and belong under FCC control. But judging from the FCC’s response to my FOIA, the FCC has decided that Pai can keep his account as long as the FCC can download copies of his old tweets.

The FCC is wrong: (A) if you download your own Twitter data, you’ll see it doesn’t include information like the text of tweets Pai responded to or which accounts he blocked, and (B) federal records are the original documents created by public officials, not copies. If Ajit Pai wanted to keep his tweets, the law allows him to download his FCC Twitter data as copies of his records (subject to approval by the agency). The law does not allow the public to be left with inferior downloaded copies while Pai keeps the originals.

Fun fact: when I filed a FOIA request for Pai’s tweets, the FCC responded that it was building a webpage to host Pai’s old tweets on the FCC website. So instead of the FCC keeping the @AjitPaiFCC account and leaving it up for the public (which is free), it is spending taxpayer money to build new website so Pai can capitalize on his 83,000 followers.

Pai Does Not Own His Official Twitter Account and Should Not Profit From It

Most federal agencies(other than the FCC) recognize that when government officials create Twitter accounts to communicate in their official role as public servants, those accounts are government property. For example, the Defense Department has clear rules warning that social media account created for government use, including accounts with the name and position of an official (say, @AjitPaiFCC), are federal property and belong to the agency. The Department of Interior also has social media rules warning federal employees that social media accounts for “official personas” used for “official business and maintained using government resources (staff time, devices, etc.) are the property of the federal government.” The National Archives specifically says the best practice is to create “create unique agency-administered accounts when an employee begins using social media for official purposes.” Pai did just that, creating a second handle when he joined the FCC and using it for FCC business.

Wow some of these highlighted details sound very familiar. Source: Department of Defense

When something belongs to the government, you can’t take it for yourself. There are regulations that prohibit government employees from misusing government property, and there are other regulations that prohibit using a public position for private benefit.

Why are those rules important? Well, imagine if a former official wrote a book and wanted to plug it to journalists who followed their government work. Ajit Pai’s FCC Twitter account is pretty valuable: it has 80,000 more followers than his personal one. That’s a lot of people to profit from.

If you wanted to announce a book, which follower count would you use?

Or take former FCC Commissioner Clyburn, who kept her account after she left the FCC in 2018. Her account still hosts her FCC tweets, like her dissent on Pai’s final decision to kill the net neutrality rules. A few months after Clyburn left the FCC, T-Mobile hired Clyburn to lobby in favor of its acquisition of Sprint, which required approval by … the FCC. And now Clyburn tweets favorably about T-Mobile’s corporate work on the same account she once used for FCC business.

These tweets should not be on the same account.

Not every FCC commissioner has done this. Former FCC Chair Tom Wheeler did the right thing and closed his account. He then directed interested followers to his personal account.

Source: https://twitter.com/TomWheelerFCC

But the other three former commissioners face the constant temptation to use accounts created for public service for personal profit. These three commissioners — Pai, O’Rielly, and Clyburn — should not have kept their FCC Twitter accounts. And the FCC, which knows about this issue and allowed it to fester, should have created policies to prevent this from happening in the first place.

Your right to see statements by FCC commissioners should not depend on whether they block you after changing jobs.

Mark Gray is a lawyer in Washington, D.C. who writes about technology policy issues in his spare time. He is available on Twitter at @Mark_T_Gray. The views in this piece are entirely his own and do not reflect the views of his employer, the United States, or any of its agencies.

Filed Under: ajit pai, archives, fcc, government property, mignon clyburn, mike o'rielly, tom wheeler, transparency, twitter accounts
Companies: twitter

Former FCC Boss Tom Wheeler Continues To Misunderstand And Misrepresent Section 230 And The Challenges Of Content Moderation

from the disappointing dept

It's not just Ajit Pai who is an FCC chair who misunderstands Section 230. His predecessor, Tom Wheeler continues to get it totally wrong as well. A year ago, we highlighted Wheeler's complete confusion over Section 230, that blamed Section 230 for all sorts of things... that had nothing at all to do with Section 230. I was told by some people that they had talked to Wheeler and explained to him some of the mistakes in his original piece, but it appears that they did not stick.

This week he published another bizarre and misguided attack on Section 230 that gets a bunch of basic stuff absolutely wrong. What's weird is that in the last article we pointed to, Wheeler insisted that social media websites do no moderation, because of 230. But in this one, he's now noting that 230 allowed them to close down the accounts of Donald Trump and some other insurrectionists -- but he's upset that it came too late.

These actions are better late than never. But the proverbial horse has left the barn. These editorial and business judgements do, however, demonstrate how companies have ample ability to act conscientiously to protect the responsible use of their platforms.

Right. Except that... the reason they have "ample ability" is because they know they can't be sued over those choices thanks to Section 230 and the 1st Amendment. Wheeler's real complaint here is that these private companies didn't act as fast as he wanted to in pulling down 1st Amendment protected speech. Then he misrepresents how Section 230 itself works:

Subsection (2) of Section 230 provides that a platform shall not be liable for, “Any action voluntarily taken in good faith to restrict access to or availability of material that any provider or user considers to be…excessively violent, harassing, or otherwise objectionable…” In other words, editorial decisions by social media companies are protected, as long as they are undertaken in good faith.

This is... only partially accurate, and very misleading. First of all, editorial decisions by companies are protected by the 1st Amendment. Second, subsection (2) almost never comes into play, and the vast, vast majority of Section 230 cases around moderation say that it's subsection (c)(1), not (c)(2), that gives companies immunity from lawsuits over moderation. Assuming that it's (c)(2) alone leads you into dangerously misleading territory. Even worse, (c)(2) has two subsections as well, and when Wheeler says that it applies "as long as they are undertaken in good faith" he ignores that (c)(2)(B) has no such good faith requirement.

Of course, in the very next paragraph, he admits that (c)(1) is what grants the companies immunity, so I'm not even sure why he brings up (c)(2) and the good faith line. That's almost never an issue in Section 230 cases. But the crux of his complaint is that he seems to think it's obvious that social media should have banned Trump and Trump cultists earlier -- and he invokes the classic "nerd harder" line:

Dealing with Donald Trump is a targeted problem that the companies just addressed decisively. The social media companies assert, however, that they have no way to meaningfully police the information flowing on their platform. It is hard to believe that the brilliant minds that produced the algorithms and artificial intelligence that powers those platforms are incapable of finding better outcomes from that which they have created. It is not technological incapacity that has kept them from exercising the responsibility we expect of all other media, it is the lack of will and desire for large-scale profits. The companies’ business model is built around holding a user’s attention so that they may display more paying messages. Delivering what the user wants to see, the more outrageous the better, holds that attention and rings the cash register.

This is a commonly stated view, but it tends to reveal a near total ignorance with how these decisions are made. These companies have large trust and safety teams, staffed with thoughtful professionals who work through a wide variety of trade-offs and challenges in making these decisions. While Wheeler is over here saying that it's obvious that the problem is they waited too long and didn't nerd harder to remove these people earlier, you have plenty of others out there screaming that this proves the companies are too powerful, and they should be barred from banning him.

Anyone who thinks it's a simple business model issue has never been involved in any of these discussions. It's not. There are a ton of factors involved, including what happens if you make this move and there's a legal backlash? Or what happens if you're driving all the cultists into underground sites where we no longer know what they're planning? There are lots of questions and demanding that these large companies with a variety of competing interests must do it to your standard is the height of privilege. It's impossible to do moderation "right." Because there is no "right." There are just a broad spectrum of wrong.

It's fine to say that companies can do better. It's fine to suggest ways to make better decisions. But too many pundits and commentators act as if there's some "correct" decision and any result that differs from that cannot possibly be right. And, even worse, they blame Section 230 for that -- when the reality is that Section 230 is what enables the companies to explore different solutions, as both Twitter and Facebook have done for years.

Wheeler's "solution" for reforming Section 230 is also ivory tower academic nonsense that seems wholly disconnected from the reality of how content moderation works within these companies.

Social media companies are media, not technology

Mark Zuckerberg testified to Congress, “I consider us to be a technology company because the primary thing we do is have engineers who write code and build product and services for other people.” That software code, however, makes editorial decisions about which information to choose to route to which people. That is a media decision. Social media companies make money by selling access to its users just like ABC, CNN, or The New York Times.

Even though he says this is an idea for reform... it's just a statement? And a meaningless one at that. It doesn't matter if they're media or technology. They're a mixture of both and something new. Trying to lump them into old buckets doesn't help and doesn't take us anywhere useful. And, honestly, if your goal here is to reform Section 230, declaring these companies media companies doesn't help, because media companies and their editorial decisions are wholly protected by the 1st Amendment.

There are well established behavioral standards for media companies

The debate should be over whether and how those standards change because of user generated content. The absolute absence of liability afforded by Section 230 has kept that debate from occurring.

Um. No. Again, these are not the same as traditional media companies. They have some similarities and some differences. Section 230 doesn't change anything. And if Tom Wheeler honestly thinks that there hasn't been a debate about behavioral standards on content moderation, then he honestly shouldn't be commenting on this. There has been an active discussion and debate on this stuff for years. The fact that he's ignorant of it doesn't mean it doesn't happen. Indeed, the very fact that he doesn't know about the debate that has gone on among trust and safety professionals and the executives at these companies going back many, many years suggests that Tom Wheeler should perhaps take some time to learn what's really going on before declaring from on high what he thinks is and is not happening.

But the key point here is that the standards of traditional media companies don't work well for social media because of the very differences in social media. A regular media company has standards because they need to review a very, very limited amount of content each day, on the order of dozens of stories. A social media company often has millions or billions of pieces of content every day (or in some cases every hour). The unwillingness to comprehend the difference in scale suggests someone who has not thought these issues through.

Technology must be a part of the solution

When the companies hire thousands of human reviewers it is more PR than protection. Asking humans to inspect the data constantly generated by algorithms is like watching a tsunami through a straw. The amazing power of computers created this situation, the amazing power of computers needs to be part of the solution.

I mean... duh? Is there anyone who doesn't think technology is a part of the solution? Every single company with user generated content, even tiny ones like us, make use of technology to help us moderate. And there are a bunch of companies out there building more and more solutions (some of them very cool!). I'm confused, though, how this matters to the Section 230 debate. Changing section 230 will not change the fact that companies use technology to help them moderate. It won't suddenly make more technology to help companies moderate. This whole point makes it sound like Tom Wheeler didn't ever bother to actually speak to an expert on how content moderation works -- which, you know, is kind of astounding when he then positions himself to give advice on how to force companies to moderate.

It is time to quit acting in secret

When algorithms make decisions about which incoming content to select and to whom it is sent, the machines are making a protected editorial decision. Unlike the editorial decisions of traditional media whose editorial decisions are publicly announced in print or on screen and uniformly seen by everyone, the platforms’ determinations are secret: neither publicly announced nor uniformly available. The algorithmic editorial decision is only accidentally discoverable as to the source of the information and even that it is being distributed. Requiring the platforms to provide an open API (application programming interface) to their inflow and outflow, with appropriate privacy protections, would not interfere with editorial decision-making. It would, however, allow third parties to build their own algorithms so that, like other media, the results of the editorial process are seen by all.

So, yes, some of this I agree with. I mean, I wrote a whole damn paper on trying to move away from proprietary social media platforms to a world built on protocols. But, the rest of this is... again, suggestive of someone who has little knowledge or awareness of how moderation works.

First, I don't see how Wheeler's analogy with media even makes sense here. There are tons of editorial decisions that the public will never, ever know about. How can he argue that they're "publicly announced"? The only information that news media makes public is what they finally decide to publish or air. But... that's not near the entirety of editorial decision making. We don't see what stories never make it. We don't see how stories are edited. We don't see what important facts or quotes are snipped out. We don't see the debates over headlines. We have no idea why one story gets page 1 top of the page treatment, while some other story gets buried on A17. The idea that media editorial is somehow more public than social media moderation choices is... weird?

Indeed, in many ways, social media companies are way more transparent than traditional media companies. They even have transparency reports that have details about content removals and other information. I've yet to see a mainstream media operation do that about their editorial practices.

Finally demanding "transparency" is another one of those solutions that occurs to people who have never done content moderation. I recently wrote about the importance of transparency, but the dangers of mandated transparency. I won't rehash that all over again, but the debate is not nearly as simple as Wheeler makes it out to be. But a few quick points: transparency reports have already been abused by some governments to allow them to celebrate and push for ever greater censorship of criticism of the government. We should be concerned about that. On top of that, transparency around moderation can be extremely costly and again create a massive burden for smaller players.

But perhaps one of the biggest issues with the kind of transparency that Wheeler is asking for is that it assumes good faith on the part of users. I've pointed out a few times now that we've had our comment moderation system in place for over a decade now and in that time the only people who have ever demanded "more transparency" into how it works are those looking to game the system. Transparency is often demanded from the worst of your users who want to "litigate" every aspect of why their content was removed or why they were banned. They want to search for loopholes or accuse you of unfair treatment. In other words, despite Wheeler's whole focus being on encouraging more moderation of voices he believes are harmful, forced transparency is likely to cut down on that, as it gives those moderated more "outs" or limits the willingness of companies to moderate "edge" cases.

The final paragraph of Wheeler's piece is so egregious and so designed to make a 1st Amendment lawyer's head explode, that I'm going to go over it sentence by sentence.

Expecting social media companies to exercise responsibility over their practices is not a First Amendment issue.

Uh... expecting social media companies to exercise responsibility over their practices absolutely is a 1st Amendment issue. The 1st Amendment has long been held to both include a prohibition on compelled speech, as well as a right of association (or non-association). That is, these companies have a 1st Amendment right to moderate as they see fit, and to not be compelled to host speech, or be forced to associate with those they don't want to associate with. That's why many of the complaints are really 1st Amendment issues, not Section 230 issues.

Relatedly, it feels like some of the problems with Wheeler's piece is he's bought into the myth that with Section 230 there are no incentives to moderate at all. That's clearly false, given how much moderation we've seen. The false thinking is driven by the belief that the only incentive to moderate is the law. That's ridiculous. The health of your platform is dependent on moderation. Keeping your users happy, and not having your site turn into a garbage dump of spam, harassment and hate, is a very strong motivator for moderation. Advertisers are another motivation, since they don't want their ads appearing next to bigotry and hatred. The focus on the law as the main lever here is just wrong.

It is not government control or choice over the flow of information.

No, but changing Section 230... would do that. It would force companies to change how they moderate. This is a reason why Section 230 is so important. It gives companies (and users!) a freedom to experiment.

It is rather the responsible exercise of free speech.

Which... all of these companies already do. So what's the point here?

Long ago it was determined that the lie that shouted “FIRE!” in a crowded theater was not free speech. We must now determine what is the equivalent of “FIRE!” in the crowded digital theater.

Long time Techdirt readers will already be screaming about this. This claim is not just wrong, it's very, very ignorant about the 1st Amendment. The "falsely shouting fire in a crowded theater" line was a throwaway line in an opinion by Justice Holmes that was actually about jailing someone for handing out anti-war pamphlets. It was never actually standard for 1st Amendment jurisprudence, and was effectively overturned in later cases, meaning it is not an accurate statement of law.

Tom Wheeler is very smart and thoughtful on so many things, that it perplexes me that he jumps into this area without bothering to understand the first thing about Section 230, the 1st Amendment, or content moderation. There are experts on all three things that he could talk to. But even more ridiculous, even assuming everything he says is accurate -- what actual policy proposal does he make in this piece? Tech companies should use tech in their moderation efforts? That seems like the only actionable point.

There are lots of bad Section 230/content moderation takes out there, and I can't respond to them all. But this is the former chair of the FCC, and when he speaks, people pay attention. And it's extremely disappointing that he would jump into this space headfirst with so many factual errors and mistaken assumptions. It's doubly troubling that this is the second time (at least!) that he's now done this. I hope that someone at Brookings, or someone close to him suggests he speak to some actual experts before speaking on this subject again.

Filed Under: 1st amendment, content moderation, fcc, free speech, section 230, tom wheeler

The GOP's Blisteringly Hypocritical Road From Whining About Net Neutrality To Supporting Trump's Idiotic Attack On Social Media

from the you-have-zero-credibility-whatsoever dept

Mike has already highlighted FCC boss Ajit Pai's rank hypocrisy in his support of Trump's brain fart of an executive order targeting social media. This is, after all, a guy that crowed for literally the better part of the last decade about how some modest net neutrality rules (read: some basic consumer protections aimed at policing widely disliked telecom monopolies) was "government run amok" and a "government takeover of the internet." Now, as Trump attempts to bully the FCC into policing social media giants it has no authority over, a decade worth of purported principles are somehow, mysteriously absent.

Of course this grotesque, comical hypocrisy isn't reserved to Ajit Pai.

Back in 2014, before the former FCC passed net neutrality rules, the Obama White House expressed some basic support for net neutrality (and reclassifying ISPs as common carriers under the Communications Act to ensure the FCC could enforce the rules). This wasn't anything nefarious or even unordinary. President George W. Bush urged FCC Chairman Michael Powell to vote on deregulating media ownership. Bill Clinton wrote a public letter to Chairman Reed Hundt to ban hard liquor advertising on television. Ronald Reagan urged Chairman Mark Fowler to drop his proposal to rescind the Financial Interest and Syndication Rules governing TV networks.

We've had plenty of criticisms of Obama era policy. But Obama's support of net neutrality was legal, ordinary, and had the broad support of countless experts and the majority of U.S. consumers. That didn't matter to the modern GOP. In its now well-established bad faith style, the party (with AT&T and Comcast's covert help) immediately began circulating the talking point that Obama's support of net neutrality had broken some nonexistent law, and was, as countless news outlets parroted at the time, an effort to illegally "bully" the FCC into passing what were, despite a lot of pearl clutching, some fairly basic consumer protections:

"Just as Obama used executive actions in an unprecedented fashion on immigration, so too has he now set a precedent by bullying an independent regulatory body into following political orders."

This idea that Obama had broken the law or was "bullying" the FCC by expressing support for a very popular policy position would soon be utterly everywhere. An endless sea of GOP pundits could be found writing op-eds about how the Obama White House had broken the law by simply wanting the FCC to protect consumers from telecom monopolies. That Obama was strong-arming the FCC would soon become a gospel narrative. And the rhetoric was even supported by a certain former reality TV star and failed steak salesman of note:

That was, of course, all bullshit pushed by telecom monopolies that simply didn't want to face anything even resembling accountability for decades of anti-competitive behavior. But the narrative that Obama had somehow broken the law was also a favored talking of Ajit Pai, who also, repeatedly, tried to insist that Obama's totally legal support of a policy widely supported by the vast majority of experts and real fucking human beings was somehow a nefarious, illegal government power grab:

"On November 10, President Obama asked the FCC to implement his plan for regulating the Internet, one that favors government regulation over marketplace competition. As has been widely reported in the press, the FCC has been scrambling ever since to figure out a way to do just that. The courts will ultimately decide this Order’s fate. And I doubt they will countenance this unlawful power grab. Litigants are already lawyering up to seek judicial review of these new rules. Given the Order’s many glaring legal flaws, they will have plenty of fodder."

Fast forward to 2020. Net neutrality (and FCC authority over telecom in general) is largely dead thanks to AT&T, Comcast, and Verizon lobbyists and an FCC willing to ignore both objective data and sleazy efforts to manipulate the public record. And the same GOP folks who threw a monumental hissy fit about Obama's "illegal takeover of the internet" are dead silent as a corrupt, criminal buffoon tries to bully the FCC into shoehorning an incoherent brain fart into genuine, real-world policy that ignores the Constitution, common sense, and widespread concern from an absolute chorus of policy experts.

The same folks who repeatedly claimed that natural telecom monopolies shouldn't be treated as a common carrier, have pivoted 180 to claim that non-dominant social media platforms like Twitter should be. The same folks who spent years insisting the FCC had no right or authority over the parts of the internet it actually had authority over now insist the FCC must regulate the parts it has no authority over. The same folks who whined incessantly about the perils of the Fairness Doctrine now mindlessly support something arguably worse.

All to keep social media giants from policing toxic political disinformation to protect GOP power, now highly reliant on online disinformation to gloss over what are usually, much like the net neutrality repeal, largely unpopular policies.

Net neutrality was, we were told, government utterly run amok. It was, we were told, the very worst example of government out of control. Yet here we have a corrupt and unqualified president genuinely bullying the FCC to support the most idiotic power play imaginable, and the lion's share of the GOP sits nodding in bobble-headed support. Worse, when Commissioner Mike O'Rielly made some incredibly tame statements pointing out Trump's EO might not be enforceable, he was fired, soon to be replaced by someone more willing to kiss Trump's ass. Largely to crickets by the GOP.

There's Luddite politicians engaged in inconsistent policy, and then there's what the modern GOP has become: a bad faith dog and pony show, heavily reliant on disinformation, lodged somewhere in the telecom sector, Rupert Murdoch, and Oracle's lower colon, using a stunning array of disinformation, bogus data, ever-shifting talking points, and complete bullshit to justify corruption and feckless fealty to an idiot king. When the bill comes due for the GOP's blistering hypocrisy and bad faith bullshit (and sooner or later it will come due), it's going to be incredibly well earned.

Filed Under: ajit pai, barack obama, donald trump, fcc, hypocrisy, independence, interference, net neutrality, regulations, section 230, tom wheeler

Hey Tom Wheeler: Stick To Net Neutrality, Because Your Understanding Of Section 230 Is... Not Right

from the the-return-of-dingo dept

Remember back when former FCC chair Tom Wheeler surprised us all and turned out not to be a dingo. That was cool. But now that he's out of government and working at the Brookings Institution, he's perhaps not a dingo, but he does seem very, very confused.

He's written a very strange piece entitled Technology, tribalism, and truth, which sounds like it should be interesting, but turns out to be quite a head-scratcher. It starts out talking about the vote counting fiasco at the Iowa caucus caused by faulty technology, and how it could "sow seeds of doubt about the functioning of democracy itself." As we wrote in our piece about it -- that's not exactly a reasonable lesson to take from the fact that using software meant that votes were counted later than people had hoped. There are plenty of other concerns about the functioning of democracy itself that can come out of the Iowa caucus process -- but those have little to do with the faulty software.

But Wheeler then uses that one faulty app, that simply delayed vote counts, as a weird springboard to attack social media:

Social media undermines what the Founding Fathers were focusing on when they wrote “We the People” and established the motto “E Pluribus Unum” (out of many, one). The concept of “We” and the formation of a “Unum” is essential for democracy to work. Humans are inherently tribal. Democracy requires us to overcome that tribalism—to find our Unum—in the pursuit of a greater good. In contrast, the business plans of the dominant digital companies are built on dividing us into tribes in order to sell targeted access to each tribe.

I know that many people have a faith-based belief that social media has divided us into tribes, but there's little empirical evidence to back that up. Indeed, social media has connected more people to other "tribes" and other people than any other system in history. And there's little in the "business plans" of social media that is helped by "dividing us into tribes." Indeed, I think Facebook, Twitter, YouTube, and others would be a ton happier if their platforms weren't used for tribal behavior, and if they could stop having to respond to news reports claiming as such.

And then, apparently it's all Section 230's fault, again, for unclear reasons:

Not only does the business plan of the internet enable such attacks, but also the lack of curation allows lies to run rampant. In 1996 Congress exempted digital services from liability for what they distribute. It was a time when the internet was defined by screeching modems, services such as AOL and CompuServe, and a technology full of promise. A quarter of a century later that exemption—known as Section 230—has become the pathway for liars, both foreign and domestic. Instead of protecting the open flow of a rich debate, this law has protected the secret sorting and delivery of untruths and half-truths without accountability.

This paragraph is so full of wrong it's embarrassing. First of all, just a paragraph earlier in the piece, Wheeler was attacking curation, in that it allowed Russians to influence an election -- and then in the very next paragraph he argues that Section 230 (the 1996 act of Congress he's discussing), there's a "lack of curation." Uh, which is it? Also, there is no lack of curation. Facebook, Twitter, YouTube, they all curate. They curate a ton. That's why lots of people are angry at them. Others are angry that they curate too much. But to argue they don't curate... is... just... wrong. Very, very, wrong.

And, by the end of the paragraph, he's back to admitting that they do curate. They just don't curate the way he wants them to. I'm curious as to how he thinks 230 has anything to do with that? If his complaint is the "secret" part of the sorting -- well, that's not a 230 issue at all. If his complaint is with the delivery of untruths and half-truths... well, then his complaint is with the 1st Amendment. If his complaint is with the curation part itself, then he's still confused because he doesn't seem to understand how it works at any social media platform.

And then... it gets even more bizarre. He brings up the Fairness Doctrine -- which the FCC used to enforce in making broadcast TV stations have to show "both sides" of various stories. Republicans hated it and fought hard against it. Many Republicans also falsely claimed that net neutrality was a "fairness doctrine for the internet" (it was not). Ironically, many of those Republicans (Hi Ted Cruz!) are now supporting what is a special fairness doctrine for the internet, designed to stop internet platforms from banning Nazis, who happen to support their campaigns.

But, Wheeler brings up the Fairness Doctrine... to explain why Rush Limbaugh got the Presidential Medal of Freedom, as a lead in to why the internet is bad... and I've read this multiple times and still can't figure out what he's trying to say.

Congress acted to assure that conflicting ideas had access to the airwaves. After seeing how Hitler manipulated the German public using the media, and with the rising fear of Communism, in 1949 the Federal Communications Commission (FCC) imposed a Fairness Doctrine on broadcasters to require the airing of all sides of a controversial issue.

The Fairness Doctrine was repealed by the Reagan FCC in 1987. The result was conservative talk radio. That Rush Limbaugh could stand and receive the Presidential Medal of Freedom during the State of the Union is testimony to the effect of eliminating the requirement for radio stations to present all sides of an issue.

Sure, the end of the Fairness Doctrine allowed for one-sided radio and TV. We know that. But what's that got to do with the internet?

But you can turn the dial if you don’t want to listen to Rush. There is less choice with social media. What economists call “network effects” mean everyone wants to be on the social media platform everyone else is on. The result is a captive audience to be secretly sorted and served by software.

What? No, Tom, no. That's not how any of this works. There is plenty of choice in social media. You can choose who you follow. You can choose who to block and who not to follow. You can choose not to use certain platforms. You have tons of choice. It does not force things upon you like you claim. Has Tom Wheeler ever actually used social media?

What should replace Section 230? Our democracy, after all is built on strong First Amendment protections. However, laws require advertisers to be truthful in their claims, and for broadcasters to follow behavioral standards. Newspapers can be held liable for what they publish—but what about the newspaper’s digital equivalent? Because a digital company distributes information on the internet, Section 230 sets it free of basic responsibilities.

Your complaint is with the First Amendment, not 230, Tom. Even if Section 230 sets them "free of basic responsibilities," that ignores just how much responsibility each and every internet platform has taken. And that's for two reasons. First, Section 230 does allow them to moderate content and to experiment with the best way how. That's important. But, more important, is that every platform moderates because of public pressure to do so. Every platform has hired thousands upon thousands of moderators, and invested in all sorts of technology, because they know if they don't, their platforms become filled with nonsense and spam and abuse and harassment.

The complaint that Tom has about moderation is that it doesn't moderate content the way they want them to moderate. But that's not a 230 issue. That's a "you're not the ones making the moderation decisions" problem.

Unfortunately, Wheeler's piece is all too similar to many of the other people, ignorant of how content moderation actually works, think: they think that mistakes they find out about in moderation are due to some malicious reason -- either a failure to moderate, or a willingness not to moderate for economic reasons. But that's not what's happening. All these platforms spend a ton on moderation, and mistakes are still made because mistakes are inevitable. That's not the fault of Section 230. And a fairness doctrine doesn't help.

The solution remains the same as Wheeler thought it was for radio: just turn the damn dial. Don't follow people who spew misinformation. Don't like their posts and don't share them. Or debunk them, like I'm doing with all of the misinformation in Wheeler's own post.

Truth cannot be allowed to become a casualty of technology. The search for democratic Unum cannot be allowed to become a casualty of technology. It is no wonder cynicism abounds when untruth and tribalism are the result of our principal communications tool. Historically, society has stepped up to the challenges of new technology. Now is our historic moment.

The untruth and tribalism are your post, Tom. That's the problem.

Filed Under: content moderation, disinformation, section 230, tom wheeler, tribalism

Trump Admin Hopes Kavanaugh Supreme Court Delivers The Killing Blow To Net Neutrality

from the pulling-it-up-from-the-roots dept

So you'll recall that before Comcast, AT&T, Verizon and friends convinced the Trump FCC to ignore the public and kill net neutrality, they had attempted to dismantle the rules legally. That effort didn't go very well, with the U.S. Court of Appeals for the D.C. Circuit upholding the FCC's Open Internet Order in June of 2016, and ISPs losing a subsequent en banc appeal. More specifically, the courts found that the former Wheeler-run FCC was well within its legal right to reclassify ISPs as common carriers under the Telecom Act.

The 2016 FCC victory made sense, especially if you recall that the agency lost its 2014 legal fight with Verizon in part because it tried to implement net neutrality without first putting itself on legal footing by classifying ISPs as common carriers under Title II. You might also recall that Wheeler at the time initially wasn't sure about the Title II route, but changed his mind based on available facts and evidence, back when people, you know, actually still did that.

But that was then and this is now. Lawyers for the FCC and Department of Justice filed a brief (pdf) with the Supreme Court last Friday, urging it to vacate the 2016 court ruling that upheld the Wheeler-era net neutrality rules. The move is necessary, FCC lawyers inform the court, because of the FCC's new, comically-named "Restoring Internet Freedom" proposal has purportedly changed the facts on the ground:

"The court of appeals upheld the 2015 Order primarily because it concluded that it was required to defer to the FCC’s legal and factual judgments as reflected in that order. But the Commission itself has now repudiated those factual and legal judgments in a new order issued after full notice-and-comment proceedings."

Of course we've noted time and time again how the repeal of net neutrality was a facts-optional shitshow of comical proportions. Given the FCC's entire justification for repeal was based on bogus ISP lobbyist math and bullshit, the FCC leaning on the facts here is pretty funny. Even if the courts don't agree with that, FCC lawyers state, the Supreme Court should just go ahead and agree with ISPs anyway:

"Alternatively, if this Court concludes that the 2018 Order did not render this case moot, or if it prefers not to resolve that issue, it should grant the petitions for writs of certiorari, vacate the judgment below, and remand for further proceedings to allow the court of appeals to consider in the first instance the effect of the 2018 Order on this litigation.

Wouldn't that be Comcastic!

So what is the Trump FCC and DOJ (read: AT&T, Verizon, Comcast and Charter) up to here? Because the FCC engaged in so much bizarre and shady behavior during the net neutrality repeal last fall (from making up a DDOS attack to turning a blind eye to identity theft and fraud in the public comment period), ISPs are well aware the FCC repeal could fall apart in court.

That could happen for a number of reasons, including the court finding the FCC violated the Administrative Procedure Act by dismantling a major regulatory effort based on little more than hot air and string cheese. The FCC can't just reverse such a massive regulatory move without first showing that broadband market realities changed dramatically enough to warrant it, something SEC filings, CEO statements and earnings report show didn't happen. That's why you'll often see Ajit Pai routinely lying about how net neutrality demolished sector investment, something that isn't supported by the facts.

In short, giant ISPs like Comcast and AT&T know they'll soon have to relitigate this in court. That's why they're pushing for a new fake net neutrality laws they've written with an eye on passing something that pre-empts both the restoration of the federal rules, or the myriad of state solutions that are now popping up. And they know that should they lose, this could very likely head to the Supreme Court. A Supreme Court that could soon be staffed by Brett Kavanaugh, who bizarrely bought the completely bogus ISP claim (during the first round of the FCC's fight with Verizon) that net neutrality rules violate an ISPs First Amendment rights.

The short version? ISPs are worried that Ajit Pai's ham-fisted and facts-optional attack on net neutrality won't survive the looming court challenge by consumer groups and Mozilla. As such, they're gearing up for what they hope will be a Kavanaugh-staffed Supreme Court to help deliver the killing blow, something that would be greatly aided by neutering existing precedent. ISPs are well aware that public sentiment, factual data and lower course rulings could restore the FCC's extremely popular net neutrality rules, and we wouldn't want that, right?

Filed Under: ajit pai, brett kavanaugh, broadband, doj, fcc, net neutrality, supreme court, tom wheeler, trump administration

Shocker: FOIA Request Shows Yet Another Core Justification For Repealing Net Neutrality Was Bullshit

from the post-truth-apocalypse dept

We've pretty well established by now that the FCC's repeal of net neutrality is being justified by a lot of fluff and nonsense with no factual basis in reality. Like claims that net neutrality killed sector investment, which are easily debunked by SEC filings, earnings reports, and numerous public CEO comments to investors (who, unlike you, they're legally not allowed to lie to). From Ajit Pai's claims that net neutrality emboldens fascists in North Korea and Iran, to his most recent claim that net neutrality fears were overhyped because Twitter still somehow works, blatant bullshit is the foundation of this entire repeal effort.

For years now, one constant bit of bullshit spread by ISPs was the claim that the Obama-era White House somehow "illegally pressured" Tom Wheeler's FCC into passing tougher net neutrality rules. As we noted at the time that claim was nonsensical, since there's no law stopping the White House from expressing its opinion on what policy should be. From Bill Clinton urging then FCC boss Reed Hundt to ban alcohol ads on TV, to George W Bush telling then FCC boss Michael Powell to deregulate media ownership, such behavior is historically perfectly normal.

Again, this fact didn't stop ISPs and their water carriers in Congress and key media outlets from repeatedly trying to claim that Obama engaged in all manner of shifty behavior to force the FCC to create the rules. The Wall Street Journal in 2014, for example, professed that "unusual, secretive efforts inside the White House" caused FCC boss Tom Wheeler to shift his position from weaker, Title I based rules, to tougher Title II based rules. The idea that Obama's White House had undertaken a covert "federal takeover of the internet" quickly became gospel across countless partisan echoverses.

The criticism was enough to drive investigations in both the Senate and by the FCC’s Inspector General. And while nobody from either government body could be bothered to tell the public the outcome of these investigations, Motherboard recently filed several FOIA requests that now show the outcome of these investigations wound up being a giant bupkis:

"After reviewing more than 600,000 emails, the independent office found that there was no collusion between the White House and the FCC: “We found no evidence of secret deals, promises, or threats from anyone outside the Commission, nor any evidence of any other improper use of power to influence the FCC decision-making process."

Which again, was what we suggested back in early 2015. None of the claims that heralded Obama's "illegal takeover of the internet" had the slightest bit of evidence in support of them, noted the FCC Inspector General's report:

"Nothing we found refuted the factual findings in the Senate Staff Report,” the IG wrote (bolding by agency). “More importantly, nothing we found in the complete, unredacted record evidenced any undue influence that would have militated in favor of a more comprehensive investigation."

What the Inspector General found, then, were career public servants doing their job: “Nothing in these, or in any other emails appeared to indicate there was pressure to delay the Order from the December meeting from any source other than concerned FCC staffers,” the report found, adding that there was “no indication” that a draft of the net neutrality regulations had been circulated improperly.

Obama's first FCC boss Julius Genachowski was arguably a wishy washy fence sitter. But his replacement Tom Wheeler wound up actually being the rare type of person capable of changing his mind based on the available evidence. And when the available evidence (and the courts) made it clear that you can't have effective net neutrality rules without classifying ISPs as common carriers until Title II of the Communications Act, that's exactly what Wheeler did. He didn't make an evidence-based decision because of some secret White House cabal, he did it because that was his fucking job. And he's subsequently been punished for it.

Of course the very idea that net neutrality (aka wanting a healthy, competitive internet) is somehow partisan was already bullshit in and of itself. It's a construct built by the telecom industry's lobbying and policy apparatus, perpetuated by numerous ISP-funded groups. The express goal is to divide the public, sow dissent, and stall meaningful reform of a broken, uncompetitive market. If you hadn't noticed, this tactic has proven immeasurably successful.

Filed Under: ajit pai, barack obama, fcc, inspector general, interference, lies, tom wheeler, white house