Clearview Hires Prominent First Amendment Lawyer To Argue For Its Right To Sell Scraped Data To Cops

from the weird-but-possibly-consitutional dept

Clearview -- the facial recognition company selling law enforcement agencies (and others) access to billions of photos and personal info scraped from the web -- is facing lawsuits over its business model, which appears to violate some states' data privacy laws. It's also been hit with cease-and-desist requests from a number of companies whose data has been scraped.

What was once a toy for billionaires has become a toy for cops, who are encouraged to test out the software by running searches on friends and family members. Clearview claims it's been instrumental in fighting crime, but evidence of this remains nonexistent.

Now, the company appears to be going on the offensive. Clearview has already argued -- through its legal rep, Tor Ekelund -- that Section 230 of the CDA insulates it against lawsuits over its use of third-party content. It's a novel argument, considering Clearview isn't actually the third party. That would be the original hosts of the content. Clearview is something else and it's not clear Section 230 applies to these lawsuits, which are about what Clearview does with the content, rather than over the content itself.

The New York Times reports Clearview has hired a prominent First Amendment lawyer -- one that has defended the paper in the past -- to make the argument that selling government agencies data scraped from the web is protected speech.

Floyd Abrams, one of the most prominent First Amendment lawyers in the country, has a new client: the facial recognition company Clearview AI.

[...]

“Floyd Abrams is without peer as the nation’s pre-eminent First Amendment attorney, and it is clear that there are potentially groundbreaking First Amendment issues relating to the cases involving Clearview AI,” said Lisa Linden, a spokeswoman for the company.

Abrams is the lawyer who gave us the Citizens United decision -- the one that allows companies and other "non-persons" to express their political beliefs through unrestricted campaign donations. If the arguments fall along these lines, Abrams will be claiming that Clearview has the First Amendment right to "talk" about other people to government agencies and private customers. If people want to talk about themselves on the open web, Clearview can't be prevented from "discussing" what it's observed with anyone who asks questions about who these people are. Of course, Abrams was also a lawyer for Hollywood who insisted that copyright being used to take down websites, while possibly censoring speech, wasn't really a 1st Amendment concern, which has always raised questions about how committed he is to the 1st Amendment as opposed to just supporting the interests of his clients.

Abrams was unaware of Clearview before being asked to represent it. The Times notes the lawyer doesn't even own a smartphone. But he's willing to push a First Amendment argument that roughly aligns with those made by other law enforcement tech companies: that collecting data en masse from public places and selling access to this data to the government is protected speech.

Mr. Abrams said that in his view, while the technology involved was novel, the premise of the cases was a company’s right to create and disseminate information.

This may be protected under the First Amendment, but it's not all that useful to its Section 230 arguments. The lawsuits it's facing deal with what Clearview does with the content it scrapes, not the content itself, so the Section 230 argument seems pointless. The First Amendment question is far more interesting. And, as odious as the company is, limiting its right to gather and disseminate data by trimming back the First Amendment would likely result in a lot of unpleasant collateral damage.

Filed Under: 1st amendment, facial recognition, floyd abrams, free speech, privacy
Companies: clearview, clearview ai

Devin Nunes Is Still Suing A Satirical Cow & A Political Consultant, But Judge Rejects Attempt To Bring Twitter Back

from the will-it-ever-end? dept

Back in June, we wrote about how a judge had sided with Twitter in the very first of Rep. Devin Nunes' long series of frivolous SLAPP suits, saying that the company was clearly protected from lawsuit by Section 230 and that it did not need to reveal the identity of the two satirical Twitter accounts who had mocked Devin Nunes so mercilessly that he decided to ignore his oath to protect the Constitution (which, last I checked, still includes the 1st Amendment) and sued.

Some assumed that this was the end of the lawsuit. It was not. First of all, the lawsuit against the two satirical accounts (one claiming to be Devin Nunes' cow and one claiming to be Devin Nunes' Mom) along with political consultant Liz Mair, were still alive and kicking unfortunately. But also, Nunes is still attempting to bring Twitter back into the case. He has filed a proposed amended complaint that his lawyer -- the ever ridiculous Steven Biss -- argues should get around Section 230 and make Twitter a party to the lawsuit. And... just as I originally finished writing this story, Judge John Marshall rejected that attempt. At around the same time, Liz Mair has filed her attempt to get the case against her dismissed in both this case, as well as in the second case Nunes filed against her.

Let's start by looking at the proposed amended complaint. As "amended complaints" go, following a judge completely dismantling your legal arguments, this is... not very amended. Indeed, I scrolled through both the original and the amended complaint and they appear to be identical, page for page (if there are any changes, they are so minor as to be cosmetic, and I couldn't see any), right up until the very, very end. While the original complaint had five claims (negligence, defamation per se, insulting words, common law conspiracy, and injunction), the new one has... six. After it includes the identical (as far as I can tell) first five claims, it adds in a sixth: "aiding and abetting." This is Biss's weak ass attempt to bring Twitter back into the case and get around Section 230:

Twitter aided and abetted the defamation of Nunes, the violations of § 8.01-45 of the Code, and the conspiracy by Mair, Mair Strategies, @DevinNunesMom and @DevinCow. It is, therefore, jointly liable for those torts....

Twitter actively participated in, aided and abetted Mair, Mair Strategies, @DevinNunesMom and @DevinCow’s intentional torts by (a) knowingly hosting and monetizing the abusive, hateful and defamatory content – providing both a voice, exposure to a massive audience and financial incentive to the defamers – thereby material contributing to the defamation, (b) using its algorithms and targeting capabilities to surreptitiously and deceptively shadow-ban Nunes, impeding his speech, and, thereby, amplifying the defamation of Mair, Mair Strategies, @DevinNunesMom, @DevinCow and others, (c) intentionally abandoning and refusing to enforce its Terms of Service and Twitter Rules against Mair, Mair Strategies, @DevinNunesMom, @DevinCow and others who post defamatory statements about Nunes with the express purpose to facilitate the defamation, (d) completely ignoring lawful complaints about offensive content and by allowing that content to remain accessible to the public and to be republished, (e) by permitting its platform to be populated and used by bots whose sole purpose it was/is to republish the false and defamatory statements by Mair, Mair Strategies, @DevinNunesMom, @DevinCow and others who post defamatory statements about Nunes, (f) by selectively encouraging defamation of Nunes in order to further a left-wing political agenda, to undermine public confidence in Nunes and to benefit his opponents and opponents of the Republican Party. In this case, Twitter contributed materially to the illegal conduct of defamers Mair, @DevinNunesMom and @DevinCow. Twitter provided a “public square” for these Democratic political operatives. Twitter intended to generate and proliferate the false and defamatory statements about Nunes in order to influence the outcome of the 2018 Congressional election and to intimidate Nunes and interfere with his important investigation of Russian involvement in the 2016 Presidential Election. Twitter used its platform, including its proprietary algorithms, selectively to convey its corporate/institutional viewpoint, its position on issues and candidates for office, such as Nunes, to influence the outcome of elections, such as the 2018 election for California’s 22nd Congressional District, and as a dumping ground for opposition research.

This is... not how any of this works. At all. You can't just ignore Section 230 by claiming a website "aided and abetted" the bogus other claims you're arguing.

And thus it did not take long for Judge Marshall to reject this in a short letter -- not even getting at the ridiculous amended complaint, but rather pointing out that Biss is just bad at his job and filed his request for leave to amend way too late:

The Plaintiff in oral argument on the motion to dismiss referenced leave to amend to file an amended complaint even though there was no notice of hearing filed for that to be heard on June 12, 2020. The Plaintiff did not file a motion for leave to amend to add a count against Twitter until July 28 four days after the order had been entered dismissing Twitter from the case and over a month after Plaintiff had been notified of the dismissal of Twitter by the court's opinion letter.

The court denies Plaintiff's request for leave to amend as the dismissal of Twitter as a defendant occurred prior to the filing of a motion for leave to amend.

In other words, as will be no surprise to regular readers of this saga, Steven Biss is bad at his job.

As for Mair, she is trying to (quite rightly) get out of both of the nonsense SLAPP suits that Nunes has filed against her, and her arguments in both cases is the legal equivalent of "WTF is this, I don't even..." but in legalese.

First, many (if the "statements" addressed in the Complaint consist only of hyperlinks or editorialized descriptions, rather than the exact words of the alleged defamatory statement. Count II must be dismissed as to each and every one of these statements: "Good pleading requires that the exact words spoken or written must be set out in the declaration in knee verba. Indeed, the pleading must go further--that is, it must purport to give the exact words." ... Particularly in a case brought by an elected official against private citizens who dared to challenge his qualifications for office, the core requirements of defamation law must be respected.

Then her lawyer points out that even if Nunes had shown defamatory statements by Mair, which he has not, he hasn't shown actual malice (which means that Mair knew they were false, or said them with reckless disregard to whether or not they were true), which is the required standard for defamation of a public figure. The actual malice standard -- for very good reason -- is where many vexatious SLAPP suits go to die:

As the Virginia Supreme Court has recognized, "the burden of proving 'actual malice' is upon the plaintiff[,] who must demonstrate by clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubt as to the truth of his statement."... This demanding standard applies with full force even where criticism "include[s] vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."...

The Complaint fails that standard. Its allegations of "actual malice" are conclusory and thus inadequate.... This deficiency is not cured by Rep. Nunes's repeated allegations that Mair harbored "hate[]," "disdain," and "ill will" towards him...

In fact, the Complaint's non-conclusory allegations defeat an inference of actual malice.... Most of Mair's allegedly defamatory statements were based directly on news reports and court filings whose truth Mair had no reason to doubt.... There is thus no valid basis to infer that she acted with a "high degree of awareness of probable falsity."

And then, of course, there's the other reason why most SLAPP suits from angry, insecure, brats tend to fail: what they got mad about is usually someone's opinion. As it was here.

Here, many of the alleged defamatory statements by Mair rank as opinions. Those include (but are not limited to) declaring that Rep. Nunes is "a clown with big league ethical issues," calling him "Dirty Devin," deeming controversial use of PAC funds to be "a legal problem, not just an ethical or optics-related one," stating that Rep. Nunes should be held accountable for "having voted for warrantless wiretapping and unlimited surveillance of Americans' emails ([including] Carter Page's)," and stating that Congress should "prioritize review of Rep. Nunes' investment and involvement in the Alpha Omega Winery, and the facts reported by the Fresno Bee." None of these statements can be described as objectively "true" or "false." Each is a subjective opinion and thus shielded by the First Amendment.

That conclusion is confirmed by context. Mair was commenting in the political arena about the news of the day, and "[p]otentially defamatory statements" that are "made during the course of an ongoing public controversy" are "likely to be understood to be rhetorical opinion" rather than "assertions of fact." Judge Robert D. Sack, 1 Sack on Defamation: Libel, Slander, and Related Problems.... If Rep. Nunes is allowed to hold citizens liable for expressing political opinions, then Americans throughout the Nation will face legal peril as they engage in democracy.

There's a lot more in the response but those are the key points on the defamation claims. The other claims are just silly add-ons that are just attempts to add emphasis and try to get around the obviously bogus defamation claims. I will note the dismantling of the "conspiracy" claims is particularly fun:

In his efforts to establish a conspiratorial agreement, Rep. Nunes relies mainly on allegations that three of the Defendants tweeted about similar subjects and occasionally retweeted or liked each other's tweets.... But if that were the standard, millions of Americans would be shocked to learn that they are enmeshed in all manner of conspiracies. It would not comport with the First Amendment of the US. Constitution--or Article I, Section 12 of the Virginia Constitution--to treat routine political speech on social media as a coordinated plot.

Mair does try to make use of Virginia's (unfortunately weak, though hopefully soon to change) anti-SLAPP law. The argument in the satirical tweets lawsuit also includes the fact that Nunes appears to have sued Mair over the same basic points in his second SLAPP lawsuit (the one against McClatchy and Mair) saying that he's trying to get two shots at this same issue in separate courts -- and says it's "improper claim splitting."

In the filing to get out of that other case, Mair notes that this time she's only being sued for an alleged conspiracy, which is also utter nonsense:

This lawsuit is a direct assault on the freedom of speech. Devin Nunes (a Member of Congress) has sued Liz Mair (a private citizen) for tweeting articles critical of his conduct while in public office--and for sharing an opinion critical of him with a reporter at McClatchy.

Nunes does not allege in this case that Mair committed defamation. Instead, he seeks to hold Mair liable for allegedly defamatory statements published by McClatchy. To do so, he posits that Mair somehow entered into an illegal conspiracy with McClatchy. But the most essential element of any conspiracy claim is an agreement--a meeting of the minds--to carry out unlawful acts together. And the Complaint comes nowhere close to adequately alleging the existence of such a conspiratorial agreement: it fails to allege the requisite details about when, where, and how this agreement supposedly came into being; it papers over those defects with conclusory assertions; and it resorts to exceedingly unreasonable inferences from a mere handful of factual allegations. Simply put, sharing political opinions with a newspaper--and then tweeting, retweeting, and liking relevant articles by that newspaper--do not suggest the existence of an illegal conspiracy. They are signs that we live in a democracy where people can express political opinions and criticize elected officials on social media platforms. For good reason, no court has ever upheld a conspiracy theory--based mainly on tweets and retweets--like the one that Nunes has advanced here.

That is reason enough to dismiss the Complaint. Yet there is more: in order to impose liability on Mair for allegedly conspiring with McClatchy to defame him, Nunes must adequately allege that McClatchy actually defamed him. None of the alleged defamatory statements described in the Complaint, however, are actually defamatory: most of them are not pleaded with their exact words and so must be dismissed; Nunes has failed to allege that any of them was published with actual malice; and most of them are categorically non-actionable as a matter of law.

It is ridiculous that these cases have gone on this long and are still continuing. For what it's worth the @DevinCow account has a GoFundMe campaign set up for its legal fees, and Mair is accepting funds via her Swamp Accountability Project page.

One hopes the judges in these two cases recognizes how insane all this is and benchslaps Nunes and Biss.

Filed Under: 1st amendment, anti-slapp, defamation, devin nunes, devin's cow, free speech, liz mair, satire, section 230, slapp, steven biss
Companies: twitter

Tweeters Were Criminally Charged For The Crime Of Trying To Identify A Police Officer... Who The Police Revealed In The Charging Docs

from the that's-DETECTIVE-'This-Bitch,'-mister dept

The Nutley, New Jersey Police Department fears for the safety of its officer. It fears so much it tried to bring criminal charges against people who retweeted a tweet asking Twitter users to identify an officer who was policing a protest. Georgana Sziszak is one of the five people charged for interacting with the tweet, as Adi Robertson reports for The Verge.

The Nutley Police Department filed its complaints in late July over a tweet posted during a June 26th protest. The now-deleted message included a photo of a masked on-duty police officer with a request that “If anyone knows who this bitch is throw his info under this tweet.” Because of the mask, the officer is not readily identifiable from the photograph, and there do not appear to be any replies revealing his identity.

The original poster and the retweeters are charged with cyber harassment, a fourth-degree felony punishable by up to 18 months in jail. Activist Georgana Sziszak, one of the retweeters, revealed the complaint in a GoFundMe campaign last week.

The original poster didn't find any takers for their request for the identity of the masked officer. The Nutley PD has, however, doxed its own officer by filing this criminal complaint. Here's the tweet -- since deleted -- asking for the officer's identity:

If you can't read/see the tweet, it says:

If anyone knows who this bitch is throw his info under this tweet

The Nutley PD knows who "this bitch" is and has provided all the info the original tweet was seeking:

The department charged Sziszak and others on behalf of Detective Peter Sandomenico, who the complaint identifies as the officer in the tweet. It alleges that the photo and accompanying caption threatened the officer “acting in the performance of his duties, causing Detective Sandomenico to fear that harm will come to himself, family, and property.”

Yes, it's decorated officer Peter Sandomenico -- an officer whose salary is 884% higher than the median salary in the town he serves. Sandomenico was once honored by the department for "going above and beyond" and was photographed receiving this really vague commendation. He was also photographed twice for NJ Cops Magazine, where he attended a ceremony honoring Nutley's "Police Officer of the Year." Sandomenico is a state delegate for his police union.

Like far too many officers around the nation, Peter "PJ" Sandomenico appears to have removed anything identifying him personally while working at the protest in Nutley. This sort of thing never plays well with the public, which often responds by crowdsourcing officer info -- not necessarily to harass officers but to let officers know their efforts to dodge accountability have been undone.

Of course, after this story started getting attention, the Essex County Prosecutor's office announced it was dropping the charges with a weak excuse:

The prosecutor’s office confirmed the five people who were charged and told the Asbury Park Press on Friday that “we concluded there was insufficient evidence to sustain our burden of proof.”

Even though the charges were dropped, this was still a blatant attack on the 1st Amendment rights of protesters -- many of whom may now be scared off from documenting law enforcement activities during these protests out of fear of facing a similar nuisance fight.

The First Amendment protects the right to photograph on-duty officers. It also protects the speech that accompanied the tweeted photo, which only asked for someone to identify the cop, not to encourage violence against the officer. The imagined parade of horrors springing from the identification of Detective Peter "PJ" Sandomenico belongs solely to the minds at the Nutley Police Department, which provided info that the five charged Twitter users failed to dig up. Great job, guys! Perhaps the PD will again be cited for going above and beyond by violating the Constitution to protect an unidentified officer the PD decided to identify on its own. Presumably when the PD does it, it results in less fear for Sandomenico's safety.

Filed Under: 1st amendment, chilling effects, criminal charges, free speech, intimidation, new jersey, nutley, protests

Hong Kong Uses New National Security Law To Arrest Prominent Pro-Democracy Media Tycoon

from the exactly-the-reason-the-law-was-writtenq dept

Hong Kong's new national security law -- foisted upon it by the Chinese government -- has nothing to do with securing the nation and everything to do with silencing pro-democracy voices. It criminalizes advocating for secession from China, as well as other forms of dissent, under the bogus theory that speaking out against the government makes Hong Kong -- and China -- less secure.

Basically, the new law equates dissent with terrorism and punishes accordingly. Life sentences possibly await arrested pro-democracy protesters and advocates. The government has put its words into action, using the new law to effect dozens of arrests. But one recent arrest shows the Chinese government doesn't care what the rest of the world thinks about its anti-democracy tactics.

In the highest-profile attack yet on free speech and press freedom in Hong Kong, police on Monday arrested Jimmy Lai, a prominent pro-democracy media tycoon, and raided the offices of his newspaper, demonstrating China’s resolve to silence dissent and bring the city to heel.

The government claims it wants to ensure the safety of residents and shut down riots. But the law, in practice, means arresting one of the most recognizable pro-democracy advocates -- one who's run a successful business for years and has met with prominent politicians around the world. This arrest is China racking the slide of its anti-freedom shotgun, letting the rest of its citizens know that no one is untouchable.

The entire arrest was recorded by employees of Lai's newspaper, the Apple Daily. As officers carted away "evidence," they took time to threaten those witnessing the raid.

The live footage showed a tense scene in the newsroom. When an editor demanded to know the exact boundaries of the area being searched, he was shoved by shouting officers. “Remember his face,” an inspector said, raising his index finger. “If he still behaves like this, give him a warning. And if he doesn’t listen to the warning, arrest him.”

Livestream footage also showed plainclothes officers at a restaurant owned by one of Mr. Lai’s sons in Hong Kong’s Central district. The officers loaded a crate filled with electronic devices they had seized into a private vehicle and did not respond when reporters asked if they were national security officers and whether they had search warrants.

While Lai faced charges earlier this year for participating in "unauthorized" protests, this arrest has everything to do with the new law. Lai is accused of "colluding with a foreign country or external elements" -- something that's vague enough to cover the everyday elements of his international business dealings. The New York Times notes Lai visited Washington, DC last year to meet with the Vice President and the Secretary of State, but the new law supposedly only applies to activities occurring after its implementation this June.

Hong Kong will not remain democratic or independent. The Chinese government will run it the way it runs China. The Chinese government agreed to limit its interference into Hong Kong's governance for fifty years when it acquired it from Great Britain. It may not have to replace the Hong Kong government with its own to achieve its goals. With laws like this -- and the acquiescence of Hong Kong political leaders -- the Chinese government can violate the spirit of the agreement for next 27 years without violating the letter of its "hands-off" assurances to the British government and the residents of Hong Kong.

Filed Under: censorship, china, democracy, free speech, hong kong, intimidation, jimmy lai, national security, pro-democracy

San Diego Police Officers Are Using An Old Sedition Law To Punish People For Swearing Around Cops

from the fuck-the-police-but-especially-these-guys dept

It's pretty well established that offensive hand gestures are covered by the First Amendment, even when it's a cop receiving the finger. This free speech has resulted in "contempt of cop" arrests and citations, but there hasn't been a federal court yet willing to recognize a police officer's "right" to remain unoffended. And if the First Amendment is violated by cops in retaliation for flipping the bird, there's going to be some Fourth Amendment violations as well.

Somehow the Constitution hasn't gotten around to removing a terrible law from the books in San Diego, California. In this city, it's still a criminal act to say rude things within hearing distance of a cop. (It's actually illegal if anyone can overhear it, but only police officers have the power to turn something mildly offensive into a criminal citation.)

On the morning of July 15, 2019, Jawanza Watson and a coworker were walking to the coworker’s car after finishing their shifts at Firehouse Bar in downtown San Diego. It was close to 2 a.m.

“I was drunk, you know. I was having a good time. I know that I was feeling myself,” Watson, who now lives in Minneapolis, told VOSD. “And I was rapping a song, but it had cursing in it.”

Watson remembers a police car rolling up slowly beside him and his coworker, windows down. An officer got out and stopped Watson, he said, claiming that the lyrics he’d been singing had been directed at the police.

[...]

The officer wound up giving Watson a ticket for violating section 56.30 of the city code, which reads: “(It) is declared to be unlawful for any person within the said City of San Diego to utter or use within the hearing of one or more persons any seditious language, words or epithets.”

Yes, this law -- which has been in effect since 1918 (the same year the federal government passed its Sedition Act, which led directly to the "fire in a crowded theater" trope) -- is still being used by cops in San Diego to punish people for saying things the cops don't like.

The enforcement of this law appears to be an SDPD crime of opportunity. Records obtained by the Voice of San Diego show the PD has handed out "seditious language" citations 83 times since 2013. The only records containing any information about citizens cited show that 8 of 11 recipients of seditious language tickets in 2018 were Black.

Is it seditious to sing rap lyrics out loud? Is it seditious to direct those lyrics at a cop, as was claimed by the officer citing Jawanza Watson? Of course not. It can only be criminal if it's linked to an "imminent crime" against the government. Being drunk and boisterous in public can be its own criminal violation, but rapping out loud is just free speech. Unfortunately, no one in San Diego has raised a Constitutional challenge yet, allowing the outdated law to live on.

There's been no Constitutional challenge because the cops abusing the law are somewhat smart about it. They downgrade the charge to a criminal infraction, ensuring no misdemeanor paperwork will be filed and make its way to the prosecutor's office. Anything along those lines might result in someone lawyering up and getting this tool of official harassment struck down. Local prosecutors seemed to be about as surprised by the law's existence as the recipients of these tickets.

Hilary Nemchik, a spokeswoman for the San Diego city attorney’s office, which prosecutes misdemeanors, said her office hadn’t been aware police were enforcing a section of the municipal code prohibiting seditious language. She called it “antiquated” and said deputy city attorneys would not prosecute anyone for it.

It's not just one cop's personal toy. The tickets examined by VOSD showed nine different officers had issued seditious language citations in 2018. This includes one citation that sounds like the SDPD considers itself more of a KGB.

Each of the 11 most recent seditious language tickets were written in downtown San Diego — except one, which the defendant received in his own home in southeastern San Diego.

There are a lot of things that define America and swearing in your own home without fear of retaliation from the government is one of them. But not when the SDPD is running things. The law, which was supposed to protect the government from being overthrown, is being used to inflict monetary pain on people who say things cops don't like.

Filed Under: cursing, free speech, offensive speech, police, protests, san diego, san diego police, sedition

Trump Issues Ridiculous Executive Orders Banning TikTok And WeChat

from the that's-not-how-any-of-this-works dept

While he had said he would do it last weekend, and then said he'd wait until September 15th (but that he wanted a finder's fee if TikTok was sold to Microsoft), last night the Trump White House issued two executive orders regarding apps from Chinese companies. The first one claims it's banning TikTok and the second one says it's banning WeChat (which isn't even that popular in the US, though it is hugely popular in China). He separately sent a letter to Congress about the TikTok ban.

As many people expected, Trump is trying to use the IEEPA, the same (already questionable) authority he used to put tariffs on a bunch of products from China at the beginning of his nonsense tradewar. This is only supposed to be used in cases of unusual or extraordinary threats -- and let's be totally blunt: TikTok is not an unusual or extraordinary threat to anything beyond President Trump's massive ego.

Of course, among the many problems with this, the IEEPA includes exceptions and a big one is that it does not apply to "any information or informational materials." And I'd argue (and I imagine TikTok's lawyers will argue) that means he can't ban apps via an executive order under the IEEPA. But, of course, that will have to be fought out in court (and might become moot if ByteDance finalizes its sale to an American company).

Still, this is all nonsense:

I, DONALD J. TRUMP, President of the United States of America, find that additional steps must be taken to deal with the national emergency with respect to the information and communications technology and services supply chain declared in Executive Order 13873 of May 15, 2019 (Securing the Information and Communications Technology and Services Supply Chain). Specifically, the spread in the United States of mobile applications developed and owned by companies in the People’s Republic of China (China) continues to threaten the national security, foreign policy, and economy of the United States. At this time, action must be taken to address the threat posed by one mobile application in particular, TikTok.

TikTok, a video-sharing mobile application owned by the Chinese company ByteDance Ltd., has reportedly been downloaded over 175 million times in the United States and over one billion times globally. TikTok automatically captures vast swaths of information from its users, including Internet and other network activity information such as location data and browsing and search histories. This data collection threatens to allow the Chinese Communist Party access to Americans’ personal and proprietary information — potentially allowing China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.

Again, tons of apps suck up this same information -- and most of our devices are built in China. The idea that TikTok is being used for "blackmail" or "corporate espionage" is beyond ludicrous. And, yeah, fine, federal employees perhaps shouldn't have an app like TikTok on their phone, but just tell federal employees not to use it. Don't ban it from the US.

And then there's this:

TikTok also reportedly censors content that the Chinese Communist Party deems politically sensitive, such as content concerning protests in Hong Kong and China’s treatment of Uyghurs and other Muslim minorities. This mobile application may also be used for disinformation campaigns that benefit the Chinese Communist Party, such as when TikTok videos spread debunked conspiracy theories about the origins of the 2019 Novel Coronavirus.

So... because TikTok moderates some content, the US will censor all the content? How does that make any sense at all?

In terms of what the actual order does, it bars any US person or company from conducting any transaction with TikTok's parent company ByteDance, or any subsidiary. That would likely mean that neither Apple nor Google could carry the app in their mobile app stores, which would effectively bar it from the US (and potentially large parts of the rest of the world, as well).

The WeChat order is effectively the same, barring transactions with WeChat's parent company Tencent Holdings "or any subsidiary of that entity." Of course, that raised a bunch of alarm bells among gamers. Tencent owns or has invested in basically every gaming company out there, and fully owns Riot Games, makers of League of Legends. It also holds a 40% stake in Epic Games.

Honestly, it sounds like, in typical Trumpland fashion, no one in the White House recognized this. So after people started to freak out, they clarified that they didn't mean to include the gaming companies:

Of course... that could change. And who knows? A plain reading of the order certainly should bar League of Legends as well. And, of course, part of this demonstrates the absolute ridiculousness of these "bans" in the first place: lots of apps (and even more devices and equipment) come from China. Doing a blanket ban is idiotic and short-sighted. Not only will it not work, not only will it deprive people of useful technology, but it justifies the Chinese approach of splintering and fragmenting the internet and censoring foreign companies. It's an extremely dangerous game the President is playing here, with a poorly-aimed sledge hammer.

And that doesn't get into the fact that just banning WeChat alone will be devastating for tons of American citizens and residents with family in China. While WeChat may not be particularly popular within the US, its popularity in China means that many relatives in the US rely on WeChat to communicate with family. Cutting them off is, again, embracing the Chinese Great Firewall approach.

Again, I don't believe that the President actually has this authority, even under his already extremely broad interpretation of the IEEPA. That means there will almost certainly be multiple lawsuits over all this, and (I'm guessing) a request for a temporary restraining order to block those orders from going into effect. But still, if on Wednesday night the Trump White House made it clear it wanted to splinter the internet, last night it started to carry out that goal in practice.

Filed Under: 1st amendment, china, donald trump, executive order, free speech, ieepa, protectionism
Companies: bytedance, tencent, tiktok, wechat

Georgia School District Inadvertently Begins Teaching Lessons In First Amendment Protections After Viral Photo

from the not-how-this-works dept

There's this dumb but persistent meme in American culture that somehow the First Amendment simply doesn't exist within the walls of a public school district. This is patently false. What is true is that there have been very famous court cases that have determined that speech rights for students at school may be slightly curtailed and must face tests over "substantial disruption" of the speech in question in order to have it limited. Named after the plaintiff in that cited case, the "Tinker test" essentially demands that schools not simply dislike a student's speech or the discomfort that comes from it, but instead must be able to demonstrate that such speech is disruptive to the school and students broadly. The facts of that case, for instance, dealt with students being suspended for wearing anti-war armbands. Those suspensions were seen as a violation of the students' First Amendment rights, because obviously.

Subsequent cases, such as Morse v. Frederick, have very slightly and narrowly expanded the limitations on speech within schools. In this case, for instance, a student's speech encouraging the use of illegal drugs was found to be a valid target for school punishment. But, narrow or not, some analysis has worried that cases like this could be used to expand the curtailing of student speech:

By contrast, the Eleventh Circuit extended Morse's rationale about illegal drugs to the context of student speech that is "construed as a threat of school violence". Boim, 494 F.3d at 984 (upholding the suspension of a high school student for a story labeled as a "dream" in which she described shooting her math teacher). Moreover, the court concluded that Morse supports the idea that student speech can be regulated where "[in] a school administrator's professional observation ... certain expressions [of student speech] have led to, and therefore could lead to, an unhealthy and potentially unsafe learning environment".

Disallowing student speech that amounts to threats of violence indeed seems to make sense. That being said, speaking of "an unhealthy and potentially unsafe learning environment":

You'd be forgiven if you thought that picture was taken from the Paulding County high school six months ago, with so few masks. But it wasn't. Instead, it was taken on August 4th, the first day back to school for Paulding County. Whatever your thoughts on whether and how schools should be opening, you really need to go read that entire article from BuzzFeed. The overwhelming impression left is that Paulding County appears to have reopened its schools in as callous and cavalier manner possible while still staying just inside government guidelines. Masks? Sure, if you want, but they're optional. Distancing? Of course, but we can't really enforce it in any meaningful way. And overall safety?

North Paulding teachers said they too felt they had no choice but to show up to work, even after a staff member texted colleagues saying she had tested positive for the virus. The staffer had attended planning sessions while exhibiting symptoms, one teacher said.

She did not attend school after testing positive. But teachers have heard nothing from the school, they said, which won’t confirm that staff members have tested positive, citing privacy concerns.

The Paulding County School Superintendent, Brian Otott, began reaching out to parents to reassure them that what they saw in the viral photo going around Twitter was fine, just fine. It lacked context, you see. Context, one presumes, is another word for safety. Or, if we are to believe Otott, the context is essentially: yes, this is totally happening, but the state said we can operate this way.

Otott claimed in his letter that the pictures were taken out of context to criticize the school’s reopening, saying that the school of more than 2,000 students will look like the images that circulated for brief periods during the day. The conditions were permissible under the Georgia Department of Education’s health recommendations, he said.

This from the same state that has the 6th highest number of total COVID-19 cases, the 11th most total cases per capita, the 4th most total new cases in the last week, and the 6th most new cases per capita in the last week. So, you know, not the state doing the best job in the country by a long shot at containing outbreaks of this virus.

Which perhaps makes sense, actually, since Otott seems chiefly interested in containing not the virus in his school halls, but rather any criticism of his district. Remember that viral photo that kicked off this discussion? Well...

At least two students say they have been suspended at North Paulding High School in Georgia for posting photos of crowded hallways that went viral on Twitter.

The photos show students packed into hallways between classes, not appearing to practice social distancing and with few masks visible, amid the coronavirus panic. They went viral after being shared by the account @Freeyourmindkid.

Those suspensions being handed out are five day suspensions and are being levied at violations of school rules around using cell phone cameras without permission. A couple of things to say about that.

First, the removal of a student from a School-sanctioned petri dish of a novel coronavirus feels odd as a punishment. Were it not for the intentions of the Superintendent, it would be damn near heroic as an attempt to save these kids from getting sick.

Second, refer back to my two paragraph throat-clearing above. This isn't constitutional. Nothing about the students sharing their concerns amounts to a disruption of school, or anything else that would qualify this protected speech for scholastic punishment. Taking a fearful 15 year old student and punishing him or her for their fear is beyond reproach. And, about those school rules for cell phones:

On Wednesday, an intercom announcement at the school from principal Gabe Carmona said any student found criticizing the school on social media could face discipline.

Again, plainly unconstitutional. One wonders why anyone should have faith in a school administration that isn't even educated enough on the rights of its own students to keep from ignorantly broadcasting its idiocy over school intercoms. Why are these people even allowed to teach children in the best of times, never mind during a pandemic as these kids get herded like cattle to the slaughter through school halls?

While I guess we'll all get to see what happens in this idiotic school district now, and maybe even learn some lessons from what occurs, I'm generally not of the opinion that we should treat our own children like they were the subjects of some kind of bizarre modern-day Tuskegee test.

Filed Under: 1st amendment, free speech, georgia, paulding county, photos, school reopenings, students, suspensions
Companies: north paulding hs

Judge Rejects Devin Nunes' SLAPP Suit Over The Esquire Article He Really, Really Doesn't Want You To Read

from the have-you-read-it-yet? dept

A federal judge has happily dismissed one of Devin Nunes' many SLAPP suits. This isn't much of a surprise given what the judge had said back in May regarding Nunes' Iowa-based SLAPP suit (reminder: Iowa has no anti-SLAPP law) against Esquire Magazine and reporter Ryan Lizza. The lawsuit was over this article that Devin Nunes really, really doesn't want you to read: Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret. Reading that will make Rep. Devin Nunes very, very sad.

Back in May, the judge made it clear that he didn't think there was much of a case here, but gave Nunes a chance to try to save the lawsuit. As you can already tell, his lawyer, Stephen Biss, has come up empty in his attempt. The court easily dismisses the case with prejudice. First, the judge goes through the various statements that Nunes/Biss claim are defamatory and says "lol, no, none of those are defamatory."

The statements at issue also do not assert provably false facts, nor do they imply the existence of undisclosed facts. The statements that plaintiff has a secret, hid or concealed his family’s move, or conspired with others to hide the move do not have “precise core meaning for which a consensus of understanding exists.” ... There is no precise meaning for how many people can know a fact for it to remain a “secret” nor is there an accepted line between “hiding” or “concealing” a fact and simply declining to publicize it. Likewise, in this context there is no precise meaning of “conspiracy.” For the same reasons, the challenged statements are not “objectively capable of proof or disproof[.]”...

The context of defendants’ statements also weighs in favor of being protected opinions. The context of the publication includes the “social context” of the publication, which includes the style of writing and the intended audience.... The Article is written in a first-person perspective and includes numerous instances of Lizza’s subjective mental impressions. This weighs against the statements being reasonably construed as statements of fact as opposed to Lizza’s characterizations or opinions.

Incredibly, the ridiculous, performative, hyperbolic language that Biss employed in the lawsuit -- calling Lizza a "left-wing political journalist, well known for his extreme bias towards Plaintiff" comes back to bite Nunes in this case:

The context also includes “public context or political arena in which the statements were made.”... Plaintiff alleges that Lizza is a “left-wing political journalist, well known for his extreme bias towards [p]laintiff.” .... At the time defendants published the Article, plaintiff was a sitting Republican congressman running for re-election.... In this public context, the Court must construe the Article in light of this nation’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” ... Accepting plaintiff’s allegations as true, any reasonable reader would construe the Article in light of Lizza’s well know political bias. Thus, any reasonable reader would understand defendants’ use of terms like “secret” or “conspired” as the type of hyperbole that is to be expected in the political arena rather than an insinuation of fact.... In this public context, no reasonable reader could construe Lizza’s statements as facts rather than opinions.

Nunes would have lost either way, but it's hilarious to see the ridiculous, over-the-top language his lawyer used come back directly to bite him.

Also, the judge points out that Lizza's articles support the conjecture that Nunes is so upset about all this pretty strongly:

Finally, the statements at issue cannot be construed as implying undisclosed defamatory facts because Lizza disclosed the basis for his conclusions. As to the statements that plaintiff’s family’s move was a “secret” or was “concealed,” the Article states that Lizza was unable to find any mention from plaintiff or the press in plaintiff’s district mentioning the move.... The Article also mentions a Wall Street Journal editorial which discussed plaintiff’s family’s dairy farm and featured a Tulare, California dateline.... Nothing in the context of the Article otherwise implies that defendants’ characterization is based on any other undisclosed facts.

Similarly, as to the conclusion that plaintiff and others conspired to hide the move, the Article points to two specific instances that support the statement. First, the Article notes that plaintiff appeared at a town hall with Congressman King in a town fifty miles from Sibley. The press release for the event did not mention plaintiff’s family ties to the district, and instead stated that plaintiff’s “family has operated a dairy farm in Tulare County, California for three generations.” ... Second, the Article discusses how the Dairy Star article about NuStar mentioned several members of the Nunes family, but omitted plaintiff.... Nelson told Lizza he omitted plaintiff at plaintiff’s family’s request.... These facts show the basis for defendants’ conclusion that plaintiff and others “conspired” to hide plaintiff’s family’s move, but do not imply the existence of other facts. The reader is “free to accept or reject [defendants’] opinion based on their own independent evaluation of the facts.”

As for the statement in the article about Nunes trying to discredit the Russia investigation and "protect[ing] Donald Trump at all costs, even if it means shredding his own reputation and the independence of the historically nonpartisan committee in the process" is deemed rhetorical hyperbole:

This statement is a protected opinion for two reasons. First, the statement is “rhetorical hyperbole” and is thus protected by the First Amendment. In, Adelson v. Harris, 774 F.3d 803, 807 (2d Cir. 2014), the court held that statements that plaintiff’s money was “dirty” and “tainted” was non-actionable rhetorical hyperbole protected by the First Amendment. Terms like “battering ram,” “at all costs,” and “shredding” are similar rhetorical hyperbole as well.

Second, this statement also has no “precise core of meaning for which a consensus of understanding exists” and thus is not objectively capable of proof or disproof..... There is no core meaning about what it means to use a committee as a battering ram, protect someone at all costs, or shred one’s own reputation. Even if these terms had a precise meaning, plaintiff has not explained how such statements could be proved or disproved. Plaintiff argues these statements “accuse Plaintiff of abusing his position as Chairman of the House Intelligence Committee, obstruction of the Russia investigation, prejudice, impartiality and unethical behavior.” .... Plaintiff fails, however, to identify any provably false facts implied by the Article that would lead to these conclusions. Also, for the same reasons discussed in the previous section, the context of defendants’ statements, particularly these statements about issues of fundamental public importance, must be construed as opinions entitled to protection in the context of political debate concerning a public official.

Another statement -- regarding Nunes' family selling their California dairy farm and moving to Iowa for a new farm -- the judge notes that Nunes made no effort to claim that this statement is false, even though it was listed as one of the defamatory statements in the lawsuit:

Plaintiff has not alleged that any aspect of this statement is false, nor does plaintiff’s brief articulate how this statement is defamatory. Plaintiff appears to admit the statements to the extent it alleges that plaintiff’s parents, brother, and sister-in-law currently live and work in Sibley, Iowa.... Regardless, nothing about this statement is defamatory. None of the facts about plaintiff’s relation to various individuals and their real estate transactions tends to harm plaintiff’s reputation. As a matter of law this statement is not defamatory.

One by one the judge rejects each and every claimed defamatory statement for reasons like these. Another one gets rejected because it's about Nunes' family, not himself. Another for being "substantially true." Basically just as we said when this suit was filed, none of this is even remotely defamatory.

Biss tried to get around the fact that none of the actual statements are defamatory by arguing that the article as a whole implied defamatory things and... that's not how any of this works. And the judge knows that.

Plaintiff fails to state a claim for defamation by implication for two reasons. First, no reasonable person could draw plaintiff’s asserted implication from the Article. Second, even if a reasonable person could draw the implication, there is no indication that defendants intended or endorsed the implication.

He also suggests there are "defamatory inferences," and again, the judge points out that the article does not support this claim:

Reading the entire Article in context, no reasonable reader could reach plaintiff’s alleged implication because the Article negates those implications. The Article states that plaintiff “has no financial interest” in NuStar. ... The Article also makes clear plaintiff is not involved in managing NuStar. ... (noting that the Dairy Star article stated that NuStar was managed by Anthony Jr. “with his son and wife” and noting in the next paragraph plaintiff is not mentioned anywhere in the Dairy Star article). No reasonable reader could understand the Article to imply the exact opposite of its text, i.e. that plaintiff had some financial or managerial interest in NuStar.

Likewise, no reasonable reader could read the Article to imply plaintiff conspired with others to hide NuStar’s use of undocumented labor. The Article is clear the conspiracy was “to hide the fact that [plaintiff]’s family sold its farm and moved to Iowa[.]” .... Similarly, no reasonable reader could find the “politically explosive secret” referenced in the title of the Article is NuStar’s use of undocumented labor. The Article states “[s]o here’s the secret: The Nunes family dairy of political lore—the one where his brother and parents work—isn’t in California. It’s in Iowa.” ... Given these express statements, no reasonable reader could infer that plaintiff was involved in a conspiracy to hide NuStar’s use of undocumented labor.

Then after all of that, the court also notes that Nunes failed to show actual malice, which, of course, is necessary in defamation cases involving public figures. And, as a reminder, "actual malice" does not mean "he didn't like the guy." It has a very specific meaning: that the statements were made knowing they were false or with reckless disregard for whether it was false or not. And, as the judge notes, there was no evidence to support this at all.

The cases plaintiff cites in support of his argument highlight the factual insufficiency of his complaint. For example, plaintiff asserts defendants acted with actual malice because they failed to observe journalistic standards, conceived of a storyline in advance and sought to find evidence to confirm that story, and relied on unreliable or biased sources in researching the Article.... These allegations, however, are “naked assertion[s]” devoid of “further factual enhancement,” and “labels and conclusions,” that fail to plausibly assert actual malice....

[....]

The Court will not reiterate every factual deficiency in the amended complaint, but some examples are illustrative. Plaintiff alleges defendants “relied on sources, including anonymous and unnamed persons, they knew were wholly unreliable and had an axe to grind against Plaintiff and his family.”... Plaintiff does not identify the sources, what axe the sources had to grind with plaintiff, or any factual basis from which the Court could plausibly find that defendants’ sources were unreliable or that defendants knew or should have known they were unreliable. To the contrary, the Article itself refers to two unnamed, but not anonymous, sources who had firsthand knowledge of NuStar’s use of undocumented labor.... This is fundamentally different than the cases upon which plaintiff relies. See Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 315 n.10 (5th Cir. 1995) (noting that evidence of an ulterior motive can “bolster an inference of actual malice,” and citing specific facts about the relationship between the parties from which the jury could have found that defendant made defamatory statements with actual malice); AdvanFort Co. v. Mar. Exec., LLC, No. 1:15-cv-220, 2015 WL 4603090, at *8 (E.D. Va. July 28, 2015) (finding that plaintiff could plausibly allege actual malice if plaintiff specifically asserted that defendant knew the author’s relationship with plaintiffs had “gone sour” after their past “unsuccessful business relationship”); Barreca, 683 N.W.2d at 123 (reversing summary judgment when record established defendant made defamatory statement based on one anonymous and unverified phone call, and portions of the statement at issue arguably showed defendant “entertained serious doubts about the truth of the phone call”).

Similarly, plaintiff alleges defendants acted with actual malice because they republished the Article.... The amended complaint asserts defendants republished the Article by tweeting links to it.... This argument fails both factually and as a matter of law. Publishing a link to an existing story is not a republication of the story.... Even if tweeting links to the Article constitutes republication, the cases plaintiff cites are inapposite here.

For what it's worth, the judge also makes a brief mention of the language that Biss used in the lawsuit to smear Lizza, regarding some rumors that went around about him. We had pointed out earlier that these claims seemed much more "defamatory" than anything Lizza wrote about Nunes. Lizza's lawyers had asked the court to strike those statements from the motion, which the court denies as moot (since the whole case is being tossed) but does note:

The Court notes, however, the material identified by defendants ... is immaterial, impertinent, and scandalous. Plaintiff’s personal attacks on Lizza have no bearing on this case. This is apparent because plaintiff never refers to the challenged allegations in resisting defendants’ motion to dismiss. The allegations likewise are prejudicial to Lizza and have criminal overtones.

The one annoying part of the ruling has to do with anti-SLAPP laws. Even though, as noted, Iowa has no anti-SLAPP law, Lizza and Hearst sought to say that California's strong anti-SLAPP law should apply (seeing as any reputational damage to Nunes would occur in California). The court rejects that on procedural grounds, saying that standard 12(b)(6) motion to dismiss procedures (and other rules of federal civil procedure) "pre-empt" California's anti-SLAPP law, since they grant the same basic protections in getting cases tossed out early. That's an argument that comes up frequently in anti-SLAPP cases. And while it's true that a motion to dismiss can -- at times -- serve a similar purpose to an anti-SLAPP motion to strike, there are important procedural differences that protect free speech, including the attorney's fees award that goes along with most anti-SLAPP laws, including California's. Unfortunately, here, the court says that cannot apply.

This is yet another reason why we absolutely need a federal anti-SLAPP law with fee shifting as part of it. Still, overall, this is a good, clean ruling rejecting one of Nunes' silly SLAPP suits. This result was inevitable, but still created a nuisance -- which likely was the intent all along.

Filed Under: 1st amendment, anti-slapp, california, defamation, devin nunes, esquire, free speech, iowa, opinion, ryan lizza, slapp, slapp suit, steven biss

State Department Announces That Great Firewall For The US; Blocks Chinese Apps & Equipment

from the this-is-not-good dept

Forget banning TikTok, the Trump State Department just suggested it wants to basically ban China from the internet. Rather than promoting an open internet and the concept of openness, it appears that under this administration we're slamming the gates shut and setting up the Great American Firewall for the internet. Under the guise of what it calls the Clean Network to Safeguard America, last night Secretary of State Mike Pompeo announced a program that is full of vague statements, that could, in practice, fragment the internet.

This is incredibly disappointing on multiple levels. While other countries -- especially China, but also Iran and Russia -- have created their own fragmented internet, the US used to stand for an open internet across the globe. Indeed, for whatever complaints we had about the State Department during the Obama administration (and we had many complaints), its commitment to an open internet was very strong and meaningful. That's clearly now gone. The "Clean Network to Safeguard America" consists of five programs that can be summed up as "fuck you China."

• Clean Carrier: To ensure untrusted People’s Republic of China (PRC) carriers are not connected with U.S. telecommunications networks. Such companies pose a danger to U.S. national security and should not provide international telecommunications services to and from the United States.
• Clean Store: To remove untrusted applications from U.S. mobile app stores. PRC apps threaten our privacy, proliferate viruses, and spread propaganda and disinformation. American’s most sensitive personal and business information must be protected on their mobile phones from exploitation and theft for the CCP’s benefit.
• Clean Apps: To prevent untrusted PRC smartphone manufacturers from pre-installing –or otherwise making available for download – trusted apps on their apps store. Huawei, an arm of the PRC surveillance state, is trading on the innovations and reputations of leading U.S. and foreign companies. These companies should remove their apps from Huawei’s app store to ensure they are not partnering with a human rights abuser.
• Clean Cloud: To prevent U.S. citizens’ most sensitive personal information and our businesses’ most valuable intellectual property, including COVID-19 vaccine research, from being stored and processed on cloud-based systems accessible to our foreign adversaries through companies such as Alibaba, Baidu, and Tencent.
• Clean Cable: To ensure the undersea cables connecting our country to the global internet are not subverted for intelligence gathering by the PRC at hyper scale. We will also work with foreign partners to ensure that undersea cables around the world aren’t similarly subject to compromise.

So, take the talk of banning Huawei and ZTE on the networking side, and the rumblings about banning TikTok on the app side, and multiply by everything.

I certainly understand the arguments that certain Chinese companies and technologies may be conducting surveillance on Americans (even though investigations into both Huawei and TikTok haven't shown anything out of the ordinary), but this approach is incredibly short-sighted. First of all, it goes against the basic American stance on openness, especially regarding the internet. That just damages what little moral high ground we had left to stand on regarding the internet.

Second, all this does is justify the Chinese approach. Make no mistake about it, China will turn around and use this to justify its (much worse) practices, by saying "look, even the Americans filter out "foreign" apps and services." Giving the Chinese ammo like that is so incredibly short-sighted.

Third, so much of American technology is still made in China -- including pretty much every electronic gadget and IOT and "smart" device that fills everyone's homes these days. This is going to backfire in so many ways. The trade war and tariffs have already hit parts of the technology industry hard, and this move will certainly lead to retaliation in all sorts of ways -- potentially having a massive impact on American firms being able to make use of factories and technology from China. That will have ripple effects throughout the economy and will likely limit certain innovation possibilities. Indeed, this may even allow Chinese firms to justify abusing technology to do the kinds of surveillance people are now freaked out about.

Fourth, it will allow China to expand its influence elsewhere in the world, showing how the US can't be trusted and plays favorites with its own companies through protectionism.

In short, this is the kind of short-sighted policy that we're all too familiar with from the Trump Administration, but which will do significant damage to the US in the process.

Filed Under: apps, censorship, china, clean network, great firewall, mike pompeo, networking equipment, technology, us
Companies: huawei, tiktok

Turkey Passes New Internet Censorship Law, Cites Germany's Awful 'Hate Speech' Law As Its Inspiration

from the how-cosmopolitan dept

Turkey's president, Recep "Gollum" Erdogan, continues to use legislation to silence everyone that might possibly criticize or mock him. This has been an ongoing process, one that keeps getting worse with every iteration. A failed coup didn't help calm things down in Turkey, which is apparently hoping to pass China and take the top spot on the "journalists jailed" chart.

The latest law has a supposedly noble goal, but there's nothing noble about the propelling force behind it. The EFF reports another law giving the government even more censorship powers has been passed, thanks to Erdogan's inability to handle criticism.

[A] new law, passed by the Turkish Parliament on the 29th of July, introduces sweeping new powers and takes the country another giant step towards further censoring speech online. The law was ushered through parliament quickly and without allowing for opposition or stakeholder inputs and aims for complete control over social media platforms and the speech they host. The bill was introduced after a series of allegedly insulting tweets aimed at President Erdogan’s daughter and son-in-law and ostensibly aims to eradicate hate speech and harassment online.

So, it obviously isn't there to eradicate all hate speech and harassment. It's there to eradicate hate speech and harassment targeting Erdogan and other members of the government. A law like this being implemented by this government -- one with a long history of silencing/arresting/jailing critics -- will only be used to target citizens who aren't thrilled with their authoritarian "representatives."

Of course, the Turkish government won't bear the expense of keeping the country's internet free of Erdogan-bashing. That will rest on social media platforms. Once served with an order to remove content that "violates personal rights" and/or the "privacy of personal life," platforms will have 48 hours to take it down. If they don't, they'll face fines and -- in an unprecedented move -- the throttling of their bandwidth by up to 90% via local internet service providers.

To better facilitate censorship of Erdogan-related criticism, social media platforms will be forced to establish a local presence to expedite takedowns.

Once ratified by President Erdogan, the law would mandate social media platforms with more than two million daily users to appoint a local representative in Turkey…

The EFF's report highlights another disturbing aspect of the new law: it was inspired by legislation in countries that respect personal freedom and expression far more than Turkey has under Erdogan.

When introducing the new law, Turkish lawmakers explicitly referred to the controversial German NetzDG law and a similar initiative in France as a positive example.

Germany's "hate speech" law has been a solid generator of collateral damage since its inception. German lawmakers may believe they've ushered a new era of online enlightenment with the law, but it's inspired a number of censorial governments to create their own versions and point to Germany when anyone asks why they're silencing dissent and criticism. EFF says thirteen countries, including Venezuela, Malaysia, Russia, and the Philippines have all cloned NetzDG to better serve the continued restriction of their citizens' free speech rights.

And while Germany's law has effectively killed satire and chilled speech, at least it contains some limited restraints on the government via the court system. In Turkey (and other countries run by authoritarians), these checks and balances don't exist. Turkey's adoption of German legal principles takes the bad parts of the law and makes them even worse.

Filed Under: censorship, free speech, germany, hate speech, turkey