Biden 'Competition Council' Urges Biden FCC To Do Things It Can't Do Because Biden Hasn't Fully Staffed It Yet

from the circular-dysfunction dept

Back in July, the Biden administration signed an executive order creating a new "competition council" tasked with taking a closer look at competition and monopoly issues in various business sectors. One of those sectors was telecom, which remains dominated by a handful of politically powerful regional monopolies, resulting in decades of spotty broadband service, high prices, and terrible customer service.

Back in July, the council offered several bits of advice as to how this could be fixed, including forcing ISPs to provide more clear pricing data to government (allowing policymakers to clearly illustrate the harms of regional monopolies), forcing ISPs to be more transparent with consumers about sneaky fees and pricing, and the restoration of the FCC's consumer protection authority stripped away during the Trump-era net neutrality repeal:

"(i) adopting through appropriate rulemaking 'Net Neutrality' rules similar to those previously adopted under title II of the Communications Act of 1934 (Public Law 73-416, 48 Stat. 1064, 47 U.S.C. 151 et seq.), as amended by the Telecommunications Act of 1996, in "Protecting and Promoting the Open Internet," 80 Fed. Reg. 19738 (Apr. 13, 2015);"

Last week the council held its inaugural meeting, including eight cabinet members and the leaders of seven independent agencies, including the FCC and acting chair Jessica Rosenworcel. As it was designed to do, the meeting focused on ways the administration can lower prices, shore up competition, and break down monopolistic logjams across business sectors:

"In the Council’s inaugural meeting, NEC Director Brian Deese (Council Chair) emphasized that the President’s competition agenda is core to the Administration’s plan to Build Back Better and critical to keeping prices low for American consumers, spurring innovation, and allowing small businesses to compete on a level playing field."

But for risk of beating a dead horse, the FCC still can't actually do any of the things the counsel asks of it because the Biden team still hasn't picked permanent agency bosses for either the FCC or NTIA.

Without a permanent boss and 3-2 voting majority, the FCC can't really do much of anything controversial to shore up telecom competition issues, much to the relief of sector giants like AT&T, Comcast, and Verizon. Mired in partisan gridlock (quite intentionally by the Trump administration and the speedy appointment of Nathan Simington at the end of his term), it can't do much else of any controversy either, whether that involves media consolidation or disaster preparedness. Worse, Rosenworcel's tenure ends at the end of the year, so if this apathy continues there's a chance the agency could see a 2-1 GOP majority in the new year, leaving it even further incapable of any real reform.

I've spent months talking to folks around DC asking why team Biden hasn't staffed its telecom regulators eight months into his first term, and nobody has a reasonable explanation. While there's clearly a lot going on, the administration wasn't too busy to give top Comcast lobbyist David Cohen a cushy job as the U.S. Canadian Ambassador. At this rate, by the time a permanent FCC boss is seated, a full year of policy time will have been wasted, which doesn't exactly scream "urgency" when it comes to telecom monopoly, media consolidation, or other reform.

The apathy on telecom and FCC staffing is an odd clash with the selection of antitrust-buster Lina Khan at the FTC. But it kind of fits the current DC obsession with fixating exclusively on "big tech," while "big telecom" engages in much of the same (or sometimes worse) behavior. At some point you have to wonder if the apathy on telecom and media reform isn't a screw up but an active policy choice.

Filed Under: broadband, competition, fcc, joe biden, ntia, white house

White House Still Pushing To Slip Section 230 Repeal Into 'Must Pass' Military Spending Bill

from the what-the-actual-fuck? dept

This was rumored a week and a half ago, and at the time I stated that there was no way in hell it was happening, and that it was all just performative nonsense... but yesterday Axios reported that the White House is still pushing Congress to insert a total repeal of Section 230 into the "must pass" National Defense Authorization Act (NDAA). At the time, the story was that Trump would make a trade: he wouldn't veto the bill over a provision that removed Confederate army names from US military bases if there was a full repeal of Section 230 in it.

This is silly for all sorts of reasons, including the idea that you're horse trading the law that helped create the open internet for racist military base names in a bill that has fuck all to do with internet/telecom policy. Of course, then Thanksgiving happened, and the President threw a total shitfit because #DiaperDon started trending on Twitter, making him declare that we had to repeal Section 230 for "national security." Seems more like it would be for dealing with the insecurity of the President of the United States.

And so it appears that the White House has decided to appease the whims of the mad child emperor, and is still pushing Congress to slip the repeal into the NDAA and hoping that the confused, misplaced, and somewhat contradictory bipartisan hatred for Section 230 will cause them to go with it. Incredibly, Axios notes that it's the Republicans in the Senate trying to talk the White House out of this plan -- though they're pushing a bunch of nonsense 230 reform bills as an "alternative." The article's only comment on Democrats is that they "are sure to object." And I think that will still doom this entire effort. But, the real goal seems to be to try to sneak through some terrible bills that are short of a full repeal.

But Senate Republicans are instead trying to negotiate an alternative that would combine multiple bills aimed at reforming the law, including the bipartisan Platform Accountability and Consumer Transparency Act and Wicker's Online Freedom and Viewpoint Diversity Act, a Hill source familiar with the matter told Axios.

We've gone through the details of why all of those bills are garbage and/or unconstitutional, and even if there were legitimate movement on getting those bills through Congress, lighting up the NDAA with them is the exact wrong thing to do. Bills like these, that would fundamentally change the very nature of the internet, are not something you just hang on an appropriations bill at the last minute.

I'm still mostly confident that none of this is actually going to happen and that it's still all just insane posturing and performative nonsense. But it's still 2020, and crazy, unprecedented shit still keeps happening, so I'll back down slightly from my "no way in hell" statement, and note that we're in hell right now, and so there's still a small chance that something horrific would happen here. It's still very, very unlikely. But it's just not going away.

Filed Under: confederate bases, donald trump, horse trading, intermediary liability, names, ndaa, section 230, white house

US Cybersecurity Director Expecting To Be Fired After Refusing To Edit Page Debunking Election Hacking Myths

from the ridiculousness-in-a-bag dept

One of the few parts of the federal government that hasn't dissolved into a complete partisan trash heap was the newly created Cybersecurity and Infrastructure Security Agency (CISA), a division of Homeland Security that was created as part of the problematic CISA bill five years ago. While we were disappointed in many aspects of the bill itself, as an organization CISA has done some pretty good work in coordinating and dealing with cybersecurity threats. Throughout the tech industry I've heard nothing but good things about CISA as a government organization, and its director Chris Krebs (as well as the staff of CISA). Indeed, I've heard from many companies preparing for this year's election how useful CISA has been in providing clear and useful information regarding potential cybersecurity threats.

Relatedly, CISA has an excellent Rumor Control page that debunks various myths about potential cybersecurity risks regarding the election. It's very good and very thorough. And, in fact, it debunks many of the myths that various Trumpists have been spreading around social media in pretty clear and concise language:

It appears that the White House has finally realized this exists and decided it's not a good look for its own organization to be debunking the very same myths that the White House itself is trying to boost and spread as real. The White House apparently asked Krebs to have the page changed, and Krebs rejected the request. He's now telling colleagues he expects to be fired for standing up for the truth and against nonsense about election hacks.

White House officials have asked for content to be edited or removed which pushed back against numerous false claims about the election, including that Democrats are behind a mass election fraud scheme. CISA officials have chosen not to delete accurate information.

In particular, one person said, the White House was angry about a CISA post rejecting a conspiracy theory that falsely claims an intelligence agency supercomputer and program, purportedly named Hammer and Scorecard, could have flipped votes nationally. No such system exists, according to Krebs, election security experts and former U.S. officials.

The article notes that an assistant director at CISA, Bryan Ware, has handed in his resignation and it is believed that this was demanded from the White House related to this particular issue.

Krebs deserves kudos for standing up for truth and a secure election, rather than to be fired for it, while Trump continues to lie, obstruct and pretend he didn't lose the election.

Oh, and thanks to the White House for driving a ton more traffic to CISA's super useful Rumor Control website.

Filed Under: chris krebs, cisa, cybersecurity, donald trump, elections, myths, white house

White House Insisted It Had 16,000 Complaints Of Social Media Bias Turned Over To The FTC; The FTC Has No Record Of Them

from the oh-really? dept

One less noticed feature of the White House's anti-Section 230 executive order was the claim that the White House had over 16,000 complaints about social media bias that it would turn over to the FTC to help it... do something to those big mean social media companies:

In May of 2019, the White House launched a Tech Bias Reporting tool to allow Americans to report incidents of online censorship. In just weeks, the White House received over 16,000 complaints of online platforms censoring or otherwise taking action against users based on their political viewpoints. The White House will submit such complaints received to the Department of Justice and the Federal Trade Commission (FTC).

The FTC shall consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce, pursuant to section 45 of title 15, United States Code. Such unfair or deceptive acts or practice may include practices by entities covered by section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices.

This wasn't the first time that Trump had claimed to possess thousands of complaints about social media bias. In August of 2018 (9 months before the White House claims to have set up a tool to receive such complaints), the President said the White House had "literally thousands and thousands of complaints coming in."

think Google is really taking advantage of a lot of people, and I think that’s a very serious thing, and it’s a very serious charge. I think what Google and what others are doing — if you look at what’s going on at Twitter, if you look at what’s going on in Facebook — they better be careful, because you … Can’t do that to people. You can’t do it. We have tremendous — We have literally thousands and thousands of complaints coming in, and you just can’t do that. So I think that Google and Twitter and Facebook, they’re really treading on very, very troubled territory, and they have to be careful. It’s not fair to large portions of the population.

At the time I filed a FOIA request to see if I could get the details of these "complaints." A few months later, I was told there were no responsive records, but it was possible other parts of the government had them. I tried another part of the government, as well, and they emailed me on March 12th (the same day that the much of where I live started to shut down due to the pandemic) to tell me they regretted the delay, and since it had taken so long for them to respond, they were assuming I was no longer interested, and were closing my FOIA request unanswered.

Nice of them.

Of course, now that the White House was claiming a specific amount (over 16,000) and saying it was passing them along to the FTC, you might think it would be a new opportunity to find out about these complaints. Turns out... no. Ryan Singel filed a FOIA request for those complaints and the FTC says the White House never sent over the complaints:

The FTC has not received the aforementioned complaints. We have located 10 complaints received through the Consumer Sentinel Network that mention this topic area and they are enclosed.

As you might expect, the 10 included complaints are pretty ludicrous. To be clear, I expect that even if the White House can turn up 16,000 such complaints that they will almost all be totally ludicrous. But these are pretty silly. Here are just a few.

I have 2 trademarks on my methodology of teaching from the US Government that work in conjunction with each other to show that my reseach is linked to a specific way of educating. Members of the ITEEA group have promoted policy that seems to breach research methodologies, PhD methodologies, publications, degrees and almost all of this inter-relates with federal funds in various ways. I have reported this numerous times to many agencies. The primary points of the issues are available published on this blogpost: www.steamedu.com/usdoe - at the bottom of the page are links to evidence for federal attorneys, the FBI and other related offices, and now yours. In lieu of today's executive order signed by the president and Section 230, it seems as though websites that we not currently curbing the spread of misinformation can now be held libel. I will assume this applies to PAC group websites, related social media sites both created by them and by groups. I am no longer sure if individuals and or site publishers would be held libel for potential slander and fraud issues and would like your group to please help direct me to a path of justice on behalf of the people, our taxes, our policies and the future of integrity in education and possibly in publishing. Thank you.

Good luck with that.

Facebook is completely removing first amendment rights of their users. It should not be deemed a platform if they are allowed to edit restrict people from using their voices on social media. Today after waking up at 6 AM and not being on social media for at least eight hours I woke up to a restriction block on my page saying that I could not re-share any more news stories until next Monday. Consequently the reason why I believe I was blocked is because I've been sharing new stories that are talking about the Minneapolis riots and Trump Signing his executive order that helps us against restricting social media network information. I truly believe they have taken this opportunity to silence my first amendment right to share the information with my timeline because they don't like the fact that I am not supporting Joe Biden! This is a complete miss use of their platform privileges and they need them stripped away immediately and they need to be held liable for taking peoples first amendment rights

Uh huh.

I made polictical statements, which have King James Bible, Conservatives, Republican views, my account was suspended for 30 days. In which Democrate, and Independent's post are fine to Facebook Community Standards. Since then Trump signed an Executive Order that Social Media's have violated people's First Amendment Rights of Free speech to ALL, I expect and apology, and NO FUTHER CENSORSHIP !

And then:

Twitter harassment has been ongoing for years, but now it's to a massive level and they are trying to thwart my right to be a Candidate for Governor, 2024 in New Hampshire. They have locked me out of 5 different Twitter accounts, delete my following and don't allow me lawful access to the site, to my own virtual property and those rights. They also are violating the Sherman Act. They have been sued, are in lawsuits now, and have an Executive Order they are violating, and they are trying and disrupting my campaign account @NHCandidate2024. They tried to force me to delete a second tweet, that is perfectly lawful and did not violate any terms of anything, they are trying to prevent me from using the Twitter site, and they continue to harass and bully. It is imperative the that FTC address these out of control website staff that are actually harassing users, severing free speech, and targeting people's accounts. They have been bullying me, and don't like my reach or voice, and ability to tell the truth and believe in everyone's rights, not just those I agree with. They have altered their "rules" and even when nothing violates them, they harass users and try to force them into removing comments, only to then continue to harass and bully and deny access to the USER's virtual property, housed in their website. They have given themselves improper authority and have continued to bully and target the majority of users (conservatives) and then allow for death threats and mutations of people on another political side. The FTC as well as every other organization, and law makers must terminate their ever growing abuses to people, and give them consequences. They cannot shut down and lock out users based on their lies and biases. They are also searching, and found nothing other than the use of the word idiot, a lawful word and that was the best they could to to retailaite and close my account. The exact tweet being b(6) only an IDIOT reads a single article, does no research and believes that slanted written story. And does no other research, go away moron, too stupid to get it https://t.co/LNoyl3Tjl6Apr 27, 2020, 7:18 PM I don't even know what that comment was in response to, but it was obviously someone I blocked that was in fact trolling me. There is no threat any other harassment, it's a comment and many of them get strong and drastic responses, since the trolls are so vile. Twitter cannot continue to lock out accounts based on no violations at all, and use those fake lock outs to justify closing out accounts. I am running and going to use all social media as anyone else running as the right to do, without being bullied by Twitter or anyone else. Time to fix their illegal activity. It's criminal and they need consequences and fines and some need more consequences, including investigating their own sites. Twitter is liable for distrupting anyone's right to contact me on my Twitter account for my campaign and they owe criminal restitution, and civil damages as well.

Slow down there, champ.

Anyway, the FCC is now sitting on a bunch of these style of complaints now as well, filed in the ongoing comment period. However, the FTC is apparently still waiting for more than just the 10 it received directly. The White House promised to deliver over 16,000 complaints, but the FTC is apparently still there, waiting.

Filed Under: anti-conservative bias, executive order, foia, ftc, social media, white house

White House Supposedly Blocked Walmart From Buying Tiktok Because It Would Prove Its Rationale For Forcing A Deal Was Bullshit

from the look-at-that dept

Among the rumors of who might take over TikTok (which the Trump administration is forcing ByteDance to sell) was the surprise entrant of Walmart. While we're still waiting for the official decision, a report last week noted that the White House stepped in to tell Walmart that couldn't happen if Walmart was to be the lead buyer:

The deal structure would have had Walmart as the lead buyer, with SoftBank and Alphabet acquiring minority stakes. One or two other minority holders held talks to join the consortium, two of the people said.

Walmart wanted to be the exclusive e-commerce and payments provider for TikTok and have access to user data to enhance those capabilities, one of the people said. But the people said the U.S. government wanted the lead buyer of TikTok to be a technology company because that would better fit with its national-security rationale for forcing Chinese owner ByteDance to divest TikTok’s U.S. operations.

This is why the newer rumor is that Microsoft would be the lead, in combination with Walmart. There's no way the DOJ would allow Google to be the lead buyer for TikTok. But here we have it: proof that the White House knows its own rationale for forcing the sale of TikTok is total and complete bullshit, and it's worried that one potential buyer might underline that fact.

Of course, this raises a shit ton of questions. Going back to the original issue, why is the White House even forcing this sale in the first place? The fact that it's now effectively admitting that the "national security" rationale was bogus by telling Walmart it can't be the lead is really revealing. Not that anyone seems willing to say or do anything about this. But now it does seem abundantly clear that even the White House knows that its rationale for forcing a deal is a fraud. Then of course, why is the White House even involved in the deal at this stage, telling Walmart what it can or can't do? None of this makes any sense, and all of it is not how any of this is supposed to work.

But, of course, the anti-TikTok sentiment is so strong among many that no one's going to point out that even the White House doesn't seem to believe its own reason for forcing the deal.

Filed Under: china, national security, social media, white house
Companies: tiktok, walmart

The Best People: White House Emailed Talking Points Meant For Surrogates To Dems, Tried To Recall Email Afterwards

from the heads-up-everyone dept

At the time of this writing, I'll go ahead and assume that anyone reading this is now fully immersed in Ukraine-Call-Gate or whatever we're calling this potentially impeachment-inducing scandal Donald Trump has managed to build for himself. What started as a murky story surrounding the administration flatly ignoring the law in handling a mysterious whistle-blower complaint has since been clarified in the extreme. What happened essentially is that the whistle-blower raised alarms over several occurrences, one of which was a call that occurred between Trump and the recently elected Ukrainian President in which Trump reportedly pushed his counterpart to investigate Hunter Biden, the son of his potential 2020 rival. Then, for reasons that are beyond me, Trump released an unredacted "rough" transcript of the call, which demonstrates that he did that very thing. You're going to hear a great deal of obfuscation over the next days and weeks about what the transcript shows. Go read it for yourself. Trump asked Ukraine, while withholding aid money at the time, to investigate the Bidens.

In the wake of the outrage over the transcript, the White House obviously went into damage control. That's to be expected. As part of any scandal, talking points are developed for surrogates to use when talking on any of the insanely stupid 24 hour news channels. That's also to be expected. But once those talking points are in written format, it's not customary to send them out to the opposing party's Congressional members.

The White House on Wednesday sent out talking points on how to spin the release of a summary of President Trump’s phone call to his counterpart in Ukraine — but emailed them to House Democrats, apparently by mistake.

Here's the goods, should you want to see them for yourself.

Now, look, I've made this mistake in my own professional life. That said, I'm not one of the "very best people" working for a White House embroiled in a full on scandal of its own making, so there's that. When you're trying to sow confusion and intrigue around what appears for all the world to be a really simple example of abuse of Presidential power, you really have to be careful about who is in that "To:" field.

And, even when I have made this mistake, I was smart enough not to frantically send out one of those useless "recall email" requests to those very same rivals I had accidentally emailed.

Now, I know some of you are thinking that this really isn't a laughing matter. And you're right, but you're also wrong, because this is fucking hilarious. One is forced to imagine Stephen Miller himself furiously sending out recall requests to Nancy Pelosi having just realized what he's done.

Will this inadvertent transparency matter? Probably not. If you're the sort that spends any calories watching cable news, this will all probably fly right over your head. Meanwhile, partisanship has so infested Washington that one of the truest things Donald Trump has ever said is probably that he could shoot someone on 5th Avenue without consequence. So at least we can have a laugh at the very best people's use of email, instead.

Filed Under: donald trump, hunter biden, impeachment, nancy pelosi, recall, talking points, transcript, ukraine, white house

House Intelligence Committee: Intelligence Community Is Burying A Whistleblower Complaint That May Involve Wrongdoing By The White House

from the fuck-us,-I-guess dept

Well. This is awkward. Congressional oversight of our intelligence agencies is actually being performed by the overseers. The House Intelligence Committee -- or at least Rep. Adam Schiff -- wants to know what's being withheld by the Office of the Director of National Intelligence.

Something fucked up has happened and the ODNI doesn't want to talk about it. What "it" is remains unknown, but it's apparently damaging enough the Intelligence Community is blowing off its obligations to its oversight.

“A month ago, a whistleblower within the intelligence community lawfully filed a complaint regarding a serious or flagrant problem, abuse, violation of law, or deficiency within the responsibility or authority of the Director of National Intelligence. The Inspector General of the Intelligence Community found that complaint not only credible, but urgent. More than ten days since the Director was obligated to transmit the complaint to the intelligence committees, the Committee has still not received the disclosure from the Director, in violation of the law.

“A Director of National Intelligence has never prevented a properly submitted whistleblower complaint that the IC IG determined to be credible and urgent from being provided to the congressional intelligence committees. Never. This raises serious concerns about whether White House, Department of Justice or other executive branch officials are trying to prevent a legitimate whistleblower complaint from reaching its intended recipient, the Congress, in order to cover up serious misconduct."

Given the ONDI's refusal to cooperate and Schiff's angry letter, it's probably safe to assume this whistleblowing involves domestic surveillance and another abuse of the NSA's powers. If it was just some "inadvertent" collection of phone records or someone blowing tax dollars by pretending to telecommute, this would have been handed over to the HIC. But this one has been denoted as being of "urgent concern," which suggests an abuse of collection authorities.

Not for nothing do whistleblowers take the next flight to Hong Kong. Going through the proper channels just gets complaints buried and possibly separates the whistleblower from their source of income. This one went through the proper channels. And the proper channels extended a wordless middle finger to Congressional oversight in response.

The ODNI claims it has no obligations to its oversight.

On September 13, 2019, the Committee received a letter from the ODNI declining the Chairman’s request and stating that the DNI, contrary to an unambiguous statutory command, is withholding the complaint from the Committee because, in part, it involves confidentially and potentially privileged communications by persons outside the Intelligence Community.

Wrong! That's not how this works. Intelligence oversight committee members are "read in." They're allowed to check this stuff out. That's why they hold closed-door sessions and invoke national security concerns when pressed by the public to be a bit more forthcoming about the IC's activities. If the ODNI considers its work to be too "sensitive" for its oversight, we have a problem. I mean, we already have problems, but now the ODNI has placed itself outside the control of the government that created it. If it can reject this demand, it can reject any form of control at all. We don't need the ODNI to be a law unto itself.

Here's the kicker: given the ODNI's recalcitrance, the Intelligence Committee is drawing some very concerning conclusions about the nature of the withheld report.

The Committee can only conclude, based on this remarkable confluence of factors, that the serious misconduct at issue involves the President of the United States and/or other senior White House or Administration officials. This raises grave concerns that your office, together with the Department of Justice and possibly the White House, are engaged in an unlawful effort to protect the President and conceal from the Committee information related to his possible “serious or flagrant” misconduct, abuse of power, or violation of law.    

Fantastic. If true, the Administration is weaponizing the Intelligence Community. And someone on the inside is "urgently concerned." If it is the Administration, it can try to Executive Order its way out of this mess. But if it does, this branch is compromised. I mean, more so. That's bad news for America and Americans. And yet another reminder that, when it comes to whistleblowing, the "proper channels" are for silencing concerned employees rather than holding our public servants accountable.

Filed Under: adam schiff, congress, director of national intelligence, intelligence community, odni, oversight, whistleblower, white house

Judge Orders White House To Restore Reporter's Press Pass It Illegally Removed

from the well-duh dept

Just a few weeks ago, we wrote about how the White House was clearly setting itself up for another embarrassing failure in court when it removed the press pass of Brian Karem. This wasn't new. The same thing had happened a year ago. And yet, our comments filled up with a lot of nonsense about how we were wrong and "there is no right to a White House press pass" and a bunch of other nonsense.

I'll be curious to hear the response from those same individuals now that a federal judge has ordered the press pass restored.

As the Court will explain below, Karem has, at this early stage of the proceedings, shown that he is likely to succeed on this due process claim, because the present record indicates that Grisham failed to provide fair notice of the fact that a hard pass could be suspended under these circumstances. Meanwhile, Karem has shown that even the temporary suspension of his pass inflicts irreparable harm on his First Amendment rights. The Court therefore grants Karem’s motion for a preliminary injunction and orders that his hard pass be restored while this lawsuit is ongoing.

The court focuses mainly on the 5th Amendment due process claims, noting that those alone suffice to show that Karem is correct here. The judge goes into great detail about how the White House never did anything to suggest special decorum rules for these events, and thus the decision to ban Karem was arbitrary. The White House brought up all sorts of bizarre explanations insisting that it had provided adequate notice to Karem, but the judge points out that's just not true.

First, the letter’s language, taken in its entirety, is ambiguous as to whether the White House even intended to regulate events other than formal press conferences. Indeed, by expressly limiting the scope of the promulgated rules—including the warning about the “suspension or revocation of . . . hard pass[es]”—to formal press conferences, the White House arguably suggested that it was not going to police reporter behavior at other events, unless “unprofessional behavior occur[red]” and it was “forced to reconsider [its] decision” by publishing explicit rules.

Also, whatever "rules" there might have been were way too vague:

The letter refers only to “professional journalistic norms, ” Acosta Letter at 2, which is just as amorphous as the “reasons for security” language that the D.C. Circuit found insufficient in Sherrill, 569 F.2d at 130. Though “professionalism” has a well-known common meaning, it is inherently subjective and context-dependent. Such abstract concepts may at times indicate what is allowed and disallowed at the furthest margins, but they do not clearly define what is forbidden or permitted in common practice within those margins. The vagueness doctrine guards against this danger by ensuring that regulated parties are able to discern, as a practical matter, “what is required of them so they may act accordingly.” Fox, 567 U.S. at 253.

The judge also notes that Karem's lawyers presented plenty of evidence of obviously much worse behavior that did not lead to press pass revocation:

Defendants appear to argue that, even if the meaning of “professionalism” may be debatable in certain instances, Karem’s behavior was clearly unprofessional in this instance. This contention appears to be grounded in the notion that “a plaintiff who ‘engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.’”... Again, though, “professionalism” is context-dependent, and Karem has provided some evidence that White House press events are often freewheeling and that aggressive conduct has long been tolerated without punishment. That evidence includes a characterization of the White House press corps as “an unruly mob of reporters.” Ex. C at 5. It includes stories of how journalists have “rudely interrupted” presidents and “berated” press secretaries, Ex. D at 1; have “breach[ed] etiquette” by “heckling” during presidential remarks, Ex. I at 1; and have shouted questions at the conclusion of Rose Garden events, drawing the ire of honored guests in attendance, see Ex. E at 2; Ex. C at 4. The evidence even includes an account of how two reporters once “engaged in a shoving match over positions in the briefing room.” Ex. C at 5. This kind of behavior may have occasionally led the White House to speak with reporters’ employers... but it apparently never resulted in the revocation or suspension of a hard pass.... And, as noted above, the Acosta Letter does not unambiguously signal a departure from that regime. In fact, the letter could reasonably be read to mean that the pre-existing regime would be maintained for the time being.

Defendants, meanwhile, have submitted no evidence in support of their contention that Karem’s conduct was clearly proscribed under the existing “professionalism” policy. They instead rest entirely on Grisham’s August 16 letter and its conclusions that “Karem’s actions, as viewed by a reasonable observer, (1) insulted invited guests of the White House, (2) threatened to escalate a verbal altercation into a physical one to the point that the Secret Service deemed it prudent to intervene, and (3) re-engaged with . . . Gorka in what quickly became a confrontational manner while repeatedly disobeying a White House staffer’s instruction to leave.” Ex. 10 at 8. But in light of the evidence that Karem has presented the first and third conclusions do not seem clearly sanctionable in the context of the White House press corps. And the second conclusion is not supported by the various video recordings of the July 11 incident. No doubt, Karem’s remark that he and Gorka could “go outside and have a long conversation,” id. at 3, was an allusion to a physical altercation, but the videos make clear that it was meant as an irreverent, caustic joke and not as a true threat. And the videos belie the notion that a Secret Service agent had to intervene to prevent a fight: the agent walks right past Karem as the exchange with Gorka is concluding (before returning upon hearing someone call Karem a “punk ass”). See Ex. 63 at 0:30–0:36; Ex. 61 at 0:23–0:27. Rather, Karem and Gorka each had ample opportunity to initiate a physical altercation, and they each made the decision not to.4 Plus, Karem’s interaction with Gorka in the Rose Garden was brief—about twenty seconds, see Ex. 63 at 0:09–0:31—and it came after the President’s remarks had concluded. This event was also one where jocular insults had been flying from all directions.... There is no indication in the record that other offenders were reprimanded, or even told to stop.

The court notes that it need not really get into the 1st Amendment arguments, given the 5th Amendment points raised above, other than to order the immediate return of the press pass, because taking it away creates irreparable harm to Karem's 1st Amendment rights.

It is not merely an abstract, theoretical injury, either. As Sherrill recognized, “where the White House has voluntarily decided to establish press facilities” that are “open to all bona fide Washington-based journalists,” the First Amendment requires “that individual newsmen not be arbitrarily excluded from sources of information.” ... Such exclusion is precisely what Karem is suffering here. His First Amendment interest depends on his ability to freely pursue “journalistically productive conversations” with White House officials.... Yet without his hard pass, he lacks the access to pursue those conversations—even as an eavesdropper. And given that the news is time-sensitive and occurs spontaneously, that lack of access cannot be remedied retrospectively.

The case is not over, but for the time being the White House needs to restore Karem's pass. And I'll be eagerly waiting to see what those who insisted this case would go the other way have to say in our comments.

Filed Under: 1st amendment, 5th amendment, brian karem, due process, journalism, press pool, stephanie grisham, white house

White House Once Again Circulating A Draft Executive Order On Social Media Bias

from the another-bold-move-by-the-Party-of-Free-Speech dept

Since the White House is convinced social media companies are kicking conservatives off left and (mostly) right, it has decided to do something about it. What this "something" is remains about as vague as the accusations.

Once you remove a handful of grifters and Nazi fans from the list, you're left with not that much to get upset about. But the few who fervently believe this is happening make a lot of noise and have the ears of powerful people, so stuff -- vague stuff -- is being set in motion while the First Amendment is set aside.

A leaked copy of what was supposedly a draft executive order on social media bias appeared late last year. If the leak was legitimate, the White House's proposal would not have been Constitutional. It would have used the pretense of bias to allow the federal government to directly regulate speech on social media platforms. Here's Mike Masnick's take on the draft order:

Basically, the order would task the White House with "investigating" social media platforms for bias and then seek to use antitrust actions (or pass it off to the DOJ or FTC) to punish companies that show loosely defined "bias." The document takes as default that any kind of "bias" on major internet platforms should be taken as anti-competitive (which seems incredibly questionable) and then also requires that various agencies give the President a report on how to "address" social media bias.

How anyone can stretch "bias" into something deserving the DOJ's antitrust attention is beyond me, but this is similar to assertions made in several lawsuits filed against social media platforms by peeved far-right personalities.

The terrible idea appears to be back on the table after (nearly) a yearlong hiatus. Margaret Harding McGill and Daniel Lippman report for Politico that a handful of unidentified White House personnel have seen a new draft executive order being crafted to tackle social media bias.

The White House is circulating drafts of a proposed executive order that would address allegations of anti-conservative bias by social media companies, according to a White House official and two other people familiar with the matter — a month after President Donald Trump pledged to explore "all regulatory and legislative solutions" on the issue.

None of the three would describe the contents of the order, which one person cautioned has already taken many different forms and remains in flux.

Again, the draft is still a draft and no verifiable copies have been released. But this does indicate the White House still wants to take action against social media platforms for their moderation efforts. What's a bit more chilling -- when you consider the voices behind these statements and where they currently reside -- is the comments made by these officials about social media moderation.

“If the internet is going to be presented as this egalitarian platform and most of Twitter is liberal cesspools of venom, then at least the president wants some fairness in the system,” the White House official said. “But look, we also think that social media plays a vital role. They have a vital role and an increasing responsibility to the culture that has helped make them so profitable and so prominent."

"Us vs. them," in other words. The White House views social media platforms as the enemy, which puts them on a long, long list of First Amendment-adjacent entities the President doesn't seem to care for. I guess the goal is to force platforms to become "conservative cesspools of venom" as well, aligning them with the Gabs and Voats of the world.

Another unnamed White House official feels this executive order would dovetail nicely into the President's recent demands that social media companies branch out into pre-crime to prevent mass shootings.

“They have a role, if not a responsibility, to monitor the content on their sites to ensure that people aren’t threatened with violence or worse, and at the same time to provide a platform that protects and cherishes freedom and free speech, but at the same time does not allow it to descend into a platform for hate,” the first White House official said when asked about the draft executive order.

It's going to be extremely difficult to "cherish free speech" and prevent sites from "descending into platforms for hate." This is why moderation is best left to social media companies, which can focus on the latter, rather than worrying too much about what the First Amendment does or doesn't allow. And this statement ignores the fact that many of the people companies have deplatformed routinely engaged in hateful speech.

If this executive order ever does actually appear, it's impossible to believe it will find some way to thread the Constitutional needle while still giving the Trump White House what it wants: control of social media platforms.

Filed Under: content moderation, free speech, social media, white house

Google Joins The Evidence-Optional Assault On Huawei

from the intercontinental-blackballing dept

So we've noted several times now how the US efforts to blacklist Huawei from global telecom markets haven't much in the way of, oh, supporting evidence. The Trump administration and FCC have taken all manner of actions to try and blackball the company, from pressuring U.S. carriers to drop plans to sell Huawei phones to the FCC's decision to ban companies from using Huawei gear if they want to receive federal subsidies.

The underlying justification for these moves has centered on the idea that Huawei operates as a surveillance extension of the Chinese government, something that still hasn't been proven despite a decade's worth of claims to this effect, and an eighteen month investigation by the White House.

That's not to say the Chinese government is an innocent little daisy. Nor is it meant to suggest that it's impossible that Huawei spies on Americans. But the lack of any actual public evidence of spying remains troubling all the same, given that if the shoe were on the other foot, there'd be no shortage of face-fanning consternation on the part of American politicians and industry.

Enter Google, which this week decided that it'd be joining the evidence-optional festivities by announcing it would be severing Huawei's Android license. The move forces Huawei to rely on the Android Open Source Project (AOSP), cutting it off from critical Google apps and services. The move, as Reuters notes, could prove devastating for one of the nation's biggest smartphone manufacturers:

"The suspension could hobble Huawei’s smartphone business outside China as the tech giant will immediately lose access to updates to Google’s Android operating system. Future versions of Huawei smartphones that run on Android will also lose access to popular services, including the Google Play Store and Gmail and YouTube apps."

As some were quick to note, the move may actually prove to be counterproductive, given the negative impact it could have on deploying timely security updates:

For its part, Google stated it was simply complying with the US Commerce Department’s decision to place Huawei on the “Entity List," a move that was justified as essential to ensuring network security. But the company largely ignored any criticism that such a move might actually undermine end-user security. And in the press, it's almost bizarre how few reporters have noticed that public evidence of spying allegations is nonexistent:

It's perfectly fine if your gut tells you Huawei is a surveillance proxy for the Chinese government, but that's not the same as evidence. Also lost in this conversation is the fact that companies like Cisco have a long history of trying to gin up lawmaker hysteria on this subject for competitive advantage, or that this blackballing effort just mysteriously materialized at the same time US gear makers were worried about competing with cheaper Chinese gear as they rush to secure international fifth-generation (5G) network contracts.

Again, perhaps Huawei really is a spy and the last decade of similar hand-wringing is perfectly justified. But if that's the case, it shouldn't be hard to provide some public evidence supporting that allegation. And while some of the concern about Huawei may very well be driven by legitimate national security concerns, another significant chunk of these efforts is pretty clearly driven by good old vanilla protectionism. To ensure US policy is being driven more by the former than the latter, it might be a good idea if the press stopped playing parrot and demanded a little more in the way of actual proof.

Filed Under: android, china, donald trump, entity list, protectionism, security, us, white house
Companies: google, huawei