Crooked Bough News Round-up

— Less Than Two Weeks Remain To Help Us Release One Billion Users, The Social Media Card Game

 

at 12/7/24 1:00pm

Were past the halfway point of our Kickstarter campaign for One Billion Users, a new competitive card game about building the biggest and best social media network. Were very excited to get this game into peoples hands, but we wont be able to do it without your support! If you want to try your hand at building a social media network, please back the campaign and secure your copy before its too late. In the past couple of weeks, weve written about the basics of the game, the way it evolved from the classic games Touring and Mille Bornes, and some of the in-game social media influencers that players compete for. We also released an episode of the podcast with our game design partner Randy Lubin, all about how we created One Billion Users and what players can expect. The game is nearly ready to produce, with a beautiful deck of over 120 cards, and weve got our manufacturing plans all sorted out — all we need now is some help to get the Kickstarter over the line. So please, back the campaign and tell your friends, and get ready to build a social media network with One Billion Users.

[Category: 1, card games, games, gaming, one billion users, social media]

— Steam Adds Timeline Requirements, Refunds Around Its Pre-Order And Season Pass Policies

 

at 12/6/24 8:39pm

Valves Steam PC gaming storefront appears to be on a bit of a pro-consumer kick as of late and I like it. We recently discussed the platforms update to its purchase process, which now specifically includes explicit language around how the purchase is that of a revokable license to play the game, rather than any misleading or buried language that would lead a consumer to think they were actually buying the game outright. This doesnt solve the problem of non-ownership of digital goods itself, of course, but it at least is a step in the direction of better informing the customer as to what they are getting in exchange for their dollars. And now Steam appears to be tackling consumer protections surrounding the pre-ordering of DLC or season pass purchase tiers. The topline summary is the requirement of a release timeline and the potential for unilateral refunds if promises and timelines arent kept are being added to anyone looking to offer DLC for pre-order and/or putting a game up on a season pass offering. Steam will now require more transparency around season pass and DLC content, including details about what’s included and expected release dates. Anything that ends up delayed could then potentially be eligible for a partial refund. “By offering a Season Pass, you are promising future content,” the new guidelines to development partners read. “In the process of launching a Season Pass you will be asked to commit to a launch timing for each content release in the Season Pass. That launch timing is a commitment to both customers and Steam.” Steam adds that while game development is complex and challenging, with delays sometimes necessary and understandable, companies will only get to reschedule DLC and season pass release timing once. “If you aren’t ready to clearly communicate about the content included in each DLC AND when each DLC will be ready for launch, you shouldn’t offer a Season Pass on Steam,” the company writes. There are some other requirements in there as well, but the above is where the real meat of this resides. So, a couple of thoughts on this. First, its very difficult to argue against these changes if you look at it even for a moment from a consumer perspective. If Im going to hand my money over to a game publisher for content to be published in the future (something I would never do, by the by), then I should at least be informed as to when to expect that content and be reimbursed if those promises arent kept. The fact that an additional provision in the policy change requires real money to be refunded in those instances, instead of in-game currency or other in-game givebacks, certainly helps as well. Digital product or not, this is fairly basic commerce standards were talking about here. But I also rather like one specific manner in which Steam and Valve are framing this: a commitment to both customers and Steam. For far too long, the public has rightly felt that Valves storefront was far more friendly to game publishers than its own customers. Statements like this seem to indicate that Steam is looking to shift the pendulum on that, aligning more with the customer compared with the publisher. Hopefully this trend will continue and Steam, and other storefronts too, will demonstrate that they value the patronage of their customers, rather than behaving as though that patronage is simply owed to them.

[Category: 1, valve, dlc, season pass, steam, video games]

— Ctrl-Alt-Speech: Comply & Demand

 

at 12/6/24 4:01pm

Ctrl-Alt-Speech is a weekly podcast about the latest news in online speech, from Mike Masnick and Everything in Moderations Ben Whitelaw. Subscribe now on Apple Podcasts, Overcast, Spotify, Pocket Casts, YouTube, or your podcast app of choice — or go straight to the RSS feed. In this weeks round-up of the latest news in online speech, content moderation and internet regulation, Mike and Ben cover: TikTok Ban Upheld (DC Circuit) TikTok’s Romanian reckoning (Politico) Romania asks EU to investigate TikTok’s election handling after ultranationalist’s stunning win (Politico) TikTok Removes Covert Network Linked to Romanian Candidate (Bloomberg) GOP FTC Commissioners Abuse “Free Speech” Rhetoric To Push For Government Control Over Online Speech (Techdirt) Race to replace FTC chair Lina Khan pits antitrust hawks against candidate softer on Big Tech: sources (NY Post) Meta says it’s mistakenly moderating too much (The Verge) The Curious Case Of ChatGPT’s Banned Names: Hard-Coding Blocks To Avoid Nuisance Threats (Techdirt) This episode is brought to you with financial support from the Future of Online Trust & Safety Fund, and by our sponsor Internet Society, a global nonprofit that advocates for an open, globally connected, secure and trustworthy Internet for everyone. In our Bonus Chat, Natalie Campbell and John Perrino from Internet Society join us to talk about the social media age restriction law in Australia, a proposed age verification bill in Canada, and the trend of age gating and age verification globally, and what it means for the open internet.

[Category: 1, bytedance, meta, openai, tiktok, andrew ferguson, chatgpt, content moderation, fcc, ftc, nick clegg, romania]

— DC Circuit Upholds TikTok Ban In Alarming Ruling, Claiming It Actually Enhances Free Speech

 

at 12/6/24 2:32pm

To anyone who listened to the oral arguments in the DC Circuit regarding the TikTok ban bill, it perhaps wasnt a huge surprise that the DC Circuit today ruled to uphold the ban, but the resulting opinion is incredibly troubling. In a stunning and dangerous decision, the court argued that banning TikTok somehow vindicates and protects the First Amendment, even while admitting the law clearly impacts speech. The ruling sets a terrifying precedent that the government can censor online platforms in the name of vague, unsubstantiated national security concerns. The law requires ByteDance to divest of TikTok in the US by January 19th, or it then requires various intermediaries (such as the Google and Apple mobile app stores) to block access to its app. ByteDance challenged the law as unconstitutional, and many First Amendment experts agreed. Unfortunately, the Court did not. In a tortured and alarming opinion, the court ruled that while banning TikTok clearly impacts speech, the law somehow passes strict scrutiny, the highest level of First Amendment review. The courts reasoning that blocking potential Chinese government influence over TikToks content moderation enhances free speech is deeply flawed. Banning an entire platform, and the speech of millions of Americans on it, does far more damage to the First Amendment than the speculative concern that China might try to influence content moderation decisions. Indeed, the ruling’s dangerous language could be used to justify all sorts of future government censorship and control over online speech. There were some questions about which standards of review should apply, and the Court admits that this is a novel case on that point, but then says it doesn’t matter, because the law would pass any level of scrutiny. However, the court’s analysis of the strict scrutiny factors is highly questionable. The key elements of strict scrutiny are that the law serves a “compelling government interest” and that the regulations are “narrowly tailored” and are the “least restrictive means.” The panel says that it’s a compelling government interest to ban TikTok… because the government keeps saying the Chinese government is, like, super scary. There is a fair bit of hand-waving, in which they note that the government presented no actual evidence of China doing anything nefarious with TikTok, but because government officials said “but they could!” that was enough. This sets an extremely low and dangerous bar. Mere speculation about what a foreign government might hypothetically do in the future should not be enough to override the First Amendment rights of millions of Americans. In many ways, this is a continuation of the way the courts often view Fourth Amendment cases, where if the government just yells “national security” loud enough, courts will ignore the plain text of the Fourth Amendment. The resulting judgment of the Congress and the Executive regarding the national security threat posed by the TikTok platform “is entitled to significant weight, and we have persuasive evidence [in the public record] before us to sustain it.” Humanitarian Law Project, 561 U.S. at 36. The petitioners raise several objections to each national security justification, which we take up next, but the bottom line is that they fail to overcome the Government’s considered judgment and the deference we owe that judgment The court is essentially arguing that we must defer to the governments national security judgments, even when they lack evidence and trample on constitutional rights. This level of deference is alarming and contrary to the role of the judiciary in checking government overreach. It also insists that the government’s very speculative arguments aren’t actually speculative, because… the government insists the threat is real. We also reject TikTok’s argument that the Government’s data-related concerns are speculative. The Government “need not wait for a risk to materialize” before acting; its national security decisions often must be “based on informed judgment.” China Telecom (Ams.) Corp., 57 F.4th at 266. Here the Government has drawn reasonable inferences based upon the evidence it has The government should need more than just informed judgment to ban an entire communications platform. To satisfy strict scrutiny, actual evidence of harm, not just hypothetical risks, should be required. Then we get to the worst and scariest part of the decision. In talking about the issue of “content manipulation” (i.e., would the Chinese government force TikTok to moderate in a particular manner), the court’s decision argues that blocking China from doing so somehow enhances the First Amendment. In this case, a foreign government threatens to distort free speech on an important medium of communication. Using its hybrid commercial strategy, the PRC has positioned itself to manipulate public discourse on TikTok in order to serve its own ends. The PRC’s ability to do so is at odds with free speech fundamentals. Indeed, the First Amendment precludes a domestic government from exercising comparable control over a social media company in the United States. See NetChoice, 144 S. Ct. at 2407 (explaining that a state government “may not interfere with private actors’ speech” because the First Amendment prevents “the government from tilting public debate in a preferred direction” (cleaned up)). Here the Congress, as the Executive proposed, acted to end the PRC’s ability to control TikTok. Understood in that way, the Act actually vindicates the values that undergird the First Amendment. The courts reasoning here is Orwellian. It claims that banning TikTok, and the speech of millions of Americans on the platform, somehow enhances free speech. This is a complete inversion of First Amendment values. The First Amendment protects against government censorship and control of private speech, it doesnt justify such censorship in the name of preventing foreign influence. The court is essentially arguing that violating the First Amendment is necessary to save it, which is absurd. This ruling opens the door to broad government censorship and control of online speech, all in the name of nebulous national security concerns. Its a blueprint for the government to ban any website or app it doesnt like. If this precedent stands, we can expect to see this twisted logic used over and over to vindicate the values that undergird the First Amendment by censoring and banning all sorts of online speech and platforms. The ruling also rejects the idea that this was a Bill of Attainder, by saying that while it does “target” TikTok directly, its remedy is not a “punishment” and therefore that prohibition doesn’t apply. But banning TikTok from operating in the US unless it is sold certainly seems like a punishment. The court’s analysis on this point is not persuasive. The court also claims that this bill is, in fact, the least restrictive means of achieving this outcome, rejecting ByteDance’s long-negotiated alternative of having all the data stored in the US on Oracle hardware, and giving Oracle the ability to audit the code. This plan was originally cooked up deliberately under the first Trump administration to support Trump donor Larry Ellison. In short, the petitioners suggest an array of options none of which comes close to serving either, much less both, the Government’s goals as effectively as does divestiture. Each consequently fails to qualify as a less restrictive alternative for purposes of the First Amendment There was also a concurring opinion that was, in some ways, even more troubling, suggesting that the court could have just said the law needs to survive intermediate scrutiny (a lower standard) rather than strict scrutiny. This whole thing is effectively chipping away at the historical high bar for regulating internet speech, and that should concern us all. Of course, the bigger question is what happens next. Trump (who started the whole idea of banning TikTok in his last administration, after users of the platform pranked him) has flipped his position on this issue once he got a huge donation from one of the biggest investors in ByteDance. He has said he’ll stop the ban and will “save” TikTok. The timing here is interesting. The ban is set to go into effect on January 19th, and Trump takes office on January 20th. Does TikTok go dark for a day and then Trump gets the DOJ to issue a reprieve saying it won’t enforce the law a day later, and then take credit for “saving” TikTok? Does he try to extract some other promises first? Of course, the more likely scenario for now is just that TikTok appeals to the Supreme Court and specifically asks for a stay blocking the law from going into effect on the 19th, at least until after SCOTUS rules on the issue. Of course, the Supreme Court ruling on this issue could also be quite a mess, and by then who knows what kind of nonsense demands the Trump administration will have to curry favor with TikTok. In short, this is a bad ruling with bad language that directly undermines the First Amendment, even as it tries to pretend it’s upholding it. It’s doing that against the backdrop of a new administration whose response is likely to be arbitrary and transactional. Not a great day for the traditional First Amendment.

[Category: bytedance, tiktok, 1st amendment, censorship, china, dc circuit, donald trump, national security, strict scrutiny, supreme court]

— The DOJ Finally Decides There’s Something Wrong With The DEA’s Cash Grabs At Airports

 

at 12/6/24 12:21pm

Civil asset forfeiture has never been about dismantling criminal operations. It has always been about immediately enriching those who directly benefit from every dollar seized under the pretense that taking cash away from random people somehow cripples multi-national drug operations that have both the personnel and the cash on hand to survive these small-ish seizures. The DEA (Drug Enforcement Administration) is an opportunist. It actually pays TSA (Transportation Security Administration) agents to search bags for cash, treating each discovery as evidence of criminal activity without being burdened with actually having to prove the seized cash was obtained via illegal transactions. Thats why the DEA regularly scans airline databases in hopes of finding people traveling in to or out of international airports who might be carrying a little extra cash. Thats why TSA agents are earning quasi-bonuses by scanning luggage for cash, rather than for explosives or actual contraband. Thats why the DHS simply ignores these abuses of power, even when its clear taking cash from travelers has absolutely zero net positive effect on travel and/or public safety. Unfortunately, no federal court will convict, so to speak. This continuous taking of cash from travelers has yet to be ruled a constitutional violation. Neither have the underlying programs that enable this. Courts have, for the most part, found little reason to prevent law enforcement from taking money from people just because they can. Now that its far too late to matter, the Department of Justice has issued a memo criticizing the DEAs airline passenger-targeting civil asset forfeiture program. Arriving at the tail end of the Biden Administration, there can be little doubt this guidance will be rolled back and any criticisms disavowed once Donald Trump takes office for a second time. For whatever its worth (and for how long), at least this exists for the meantime. Heres the opening of the DOJs memo [PDF] addressing DEA cash seizures at US airports. (h/t C.J. Ciaramella at Reason) The purpose of this memorandum is to bring to your immediate attention serious concerns identified by the U.S. Department of Justice (Department, DOJ) Office of the Inspector General (OIG) during our ongoing oversight of the Drug Enforcement Administration’s (DEA) transportation interdiction activities. [] The OIG recently identified that, during its transportation interdiction activities, the DEA was not complying with its own policy on consensual encounters conducted at mass transportation facilities, resulting in personnel creating potentially significant operational and legal risks. Specifically, the DEA was not complying with DEA policy to complete the DEA-177 Consensual Encounter Form (DEA-177 form) for each consensual encounter, despite prior DEA representations to the OIG that the DEA was doing so. Additionally, the DEA was not ensuring that all DEA task force personnel complete interdiction training required by DEA policy, despite the DEA’s prior representations to the OIG that the DEA would do so, resulting in personnel conducting interdiction activities at transportation facilities without first receiving the required training. While this is a positive development, its pretty much useless both because of what it says and the likelihood it will be rolled back by the incoming head of the DOJ, whoever that might be. The OIG has concerns, but its concerns dont deal with the DEA deliberately targeting travelers they think may be carrying cash it can claim for itself. Instead, its much more concerned about DEA agents failure to pencil-whip the required forms before stealing cash from travelers it cant be bothered to actually bring criminal charges against. All this means is DEA agents at least temporarily will spend a bit more time on paperwork following dubious cash seizures. If nothing else, though, the memo has at least resulted in a temporary termination of DEA theft. On November 12, 2024, after receiving a draft of this Management Advisory Memorandum (MAM), the Deputy Attorney General issued a directive to the DEA to suspend conducting, pending an assessment and evaluation, all consensual encounters at mass transportation facilities unless they are either connected to an existing investigation or approved by the DEA Administrator based on exigent circumstances. Thats better, but all it does is terminate consensual encounters, which are encounters in which DEA agents roll up on a traveler and try to intimidate them into consenting to a warrantless search of their baggage. Given the extremely minimal requirements attached to reasonable suspicion, especially in terms of international travel, non-consensual encounters have likely increased to match any (small) reduction in consensual encounters. Theres more detailed in this memo that shows just how desperately the DEA wants to turn airports into a perpetual revenue stream. Not only is the DEA funneling money to TSA agents, but its also converting airline employees into confidential sources just so it can be given access to travel records and any other personal/financial information obtained by airlines when selling tickets to US citizens. The OIG says this program (if it even can be called a program) has been handled sloppily (intentionally) with very little vetting or supervision of airline confidential sources who still continued to get paid, even if their contribution hasnt resulted in the arrest of criminals or recovery of actual contraband. (Carrying cash isnt illegal. Some reporting requirements are mandated when leaving the country, but domestic passengers arent subject to federal cash reporting requirements.) The DEAs efforts in US airports amount to bounty programs that pay (untrained and un-vetted) airline employees to provide targets for consensual encounters meant solely to discover cash to seize. [W]e learned of a DEA office that has a Limited Use CS, who is an employee of a commercial airline, and has for several years been paying the CS a percentage of forfeited cash seized by the DEA office from passengers at the local airport when the seizure resulted from information the CS had provided to the DEA. In one particular case involving this Confidential Source (CS), the DEA received tips on five passengers who had bought their tickets within 48 hours of departure. The DEA ran all the names against criminal databases and the search came up empty. Nevertheless, the DEA sent agents to coerce these passengers into consensual searches. As the OIG notes, this means the DEA did not have the requisite reasonable suspicion to initiate these encounters. One of the passengers accosted as a result of this airline employees tip recorded the encounter, which ended with the DEA telling him he could continue to travel but leave his bag behind if he did not consent to a search. A search (one that involved a drug dog alerting) recovered no drugs, no cash, and no contraband. The recording of this incident was made public by the person searched (who also missed their flight because of the DEA). The OIG points out the paperwork that was supposed to accompany the documentation of this encounter never managed to materialize until after the recording had been made public by the person they stopped and searched. The records that the OIG was able to view show this airline employee has been paid handsomely for their dubious contribution to public safety. But whether or not theyre actually worth the money theyre being paid is still a mystery, because the DEA refuses to do the mandated paperwork for each encounter, presumably because it doesnt want to create a permanent record of its false positives. The OIG’s review of DEA records revealed that the CS who provided the information to the DEA task force that day has received tens of thousands of dollars from the DEA over the past several years for seizures resulting from information the CS provided of travelers with tickets purchased within 48 hours of their flight. We are unable to determine the total number of travelers the DEA has searched over the years as a result of information provided by the CS, or the number who have refused to be searched following consensual encounters with the DEA at the local airport, because the DEA office in question kept records of such interactions only when they resulted in a seizure of money or contraband. On the micro level, theres the stuff listed above. On the macro level, theres the fact that the DEA engages in biased policing. While cash is the primary focus, the secondary focus appears to be on travelers who just arent white enough to be trusted to board airplanes without some additional hassling. Of course, the DEA doesnt want the public or its oversight to know this, so agents yet again ignore mandates and policies to avoid creating a paper trail. Additionally, the DEA Office of Training’s review found that the DEA-177 form was not consistently applied by personnel conducting transportation interdiction and that “unknown” was often selected in the required “perceived race, ethnicity, and gender of individual encountered” field to avoid the perception of bias. Further, the Office of Training found that the Jetway training program had no consolidated DEA headquarters senior leadership oversight and that the program did not align with DEA training policies or instructor-vetting practices. Which is all intentional. The DEA doesnt want oversight asking too many questions. It doesnt want to create records that might end up in the hands of the public. And it certainly doesnt want anything to interrupt this steady flow of cash a never-ending stream of unearned income that has done absolutely nothing meaningful to interrupt the international drug trade. The DEA wants free money and the latitude to harass minorities, even if that harassment is ultimately nothing more than cruelty for its own sake. This memo exposes the problems, but the DEA has no interest in solving them. And its extremely unlikely the next person running the DOJ will have any interest in maintaining the very comfortable guardrails this OIG report proposes.

[Category: 1, 4th amendment, 5th amendment, airports, asset forfeiture, civil asset fofeiture, dea, doj, legalized theft, tsa]

— Daily Deal: EDU Unlimited by StackSkills

 

at 12/6/24 12:16pm

StackSkills is the premier online learning platform for mastering todays most in-demand skills. Now, with this exclusive limited-time offer, youll gain access to 1000+ StackSkills courses for life! Whether youre looking to earn a promotion, make a career change, or pick up a side hustle to make some extra cash, StackSkills delivers engaging online courses featuring the skills that matter most today, both personally and professionally. Its on sale for $19.97. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

[Category: 1, daily deal]

— GOP FTC Commissioners Abuse “Free Speech” Rhetoric To Push For Government Control Over Online Speech

 

at 12/6/24 10:35am

In a disturbing (if unsurprising) trend, Republican FCC and FTC commissioners are deliberately misusing free speech rhetoric in an Orwellian attempt to justify government intervention to control and suppress online speech. Last week, FCC Commissioner Brendan Carr pushed censorial policies in the name of free speech. This week, GOP FTC Commissioners Melissa Holyoak and Andrew Ferguson followed the same playbook. Of course, the context here is that Holyoak and Ferguson are fighting to get into Trumps good graces to be named FTC chair, and hes apparently worried that the two of them will be soft on his big tech enemies. That resulted in them hijacking an unrelated enforcement action against e-commerce site GOAT to attack social media content moderation and advertiser boycotts. GOAT is kind of like an eBay for mostly sneakers and some other sports apparel. But the FTC went after it for being misleading about both its shipping times and its claims of providing buyer protection services. This seems like a fairly straightforward FTC case involving violations for unfair or deceptive practices. But for whatever reason (okay, okay, we know why) the Republican Commissioners decided to use this otherwise unremarkable case to go nuts about “online censorship” and (I shit you not) the unwillingness of some companies to advertise on ExTwitter. While GOATs practices were problematic, they had nothing to do with the content moderation policies of social media platforms that the commissioners attacked in their statements. Indeed, they had nothing to do with third-party speech at all. Commissioner Melissa Holyoak agreed with the FTCs actions against GOAT, but then pivoted in her concurring statement to argue that the FTC should use the very same powers to go after social media companies for alleged unfair treatment of users in how they moderate: This case is a good example of the Commission’s robust enforcement to protect consumers, and how we should consider and appropriately use every tool that Congress has given to us. This includes using our existing consumer protection authorities—consistent with the Commission’s constitutional and statutory authority—in new or emerging areas. For example, we must better understand how platforms enforce their terms of service to deny access or services to users or moderate speech about controversial topics. And the settlement with GOAT underscores the existing legal authority the Commission has to prosecute how platforms enforce their terms of service. Platforms employ their own internal procedures when they decide to terminate or deny access to users—not unlike the failed internal procedures of GOAT. A platform’s internal procedures can also be a black box, failing to provide users with adequate information about alleged violations of the terms of service, the platform’s determination, and the user’s purported “options” to challenge or appeal those decisions. Such actions have serious consequences for consumers, and in some cases, may be contrary to consumers’ reasonable expectations and constitute an unfair practice. It is critical to do more to understand the role that platforms play in controlling access to the digital commons. And a comprehensive approach to behavioral remedies—using our consumer protection and antitrust authorities—can reduce big tech’s ability to unlawfully remove Americans off their platforms. Almost everything about this is nonsense. First, every single terms of service on these kinds of platforms includes some variation of the line saying “and we can kick you off our platform for any reason whatsoever.” Because they can. With very few restrictions, private businesses have the right to refuse service to anyone, and that’s especially true in the speech context, where the First Amendment’s rights of association include the right not to associate with anyone’s speech. That is simply categorically different than an e-commerce company making direct promises to users about when it will ship things and what kind of buyer protection is provided. Holyoak claims that this “can reduce big tech’s ability to unlawfully remove Americans off their platforms,” but leaves out the fact that it’s not unlawful at all. Hell, the Supreme Court itself just explained this in the Moody ruling, making it clear that Florida and Texas can’t pass laws that tell social media companies how to moderate. Is Commissioner Holyoak unaware of what the Supreme Court just said mere months ago? At bottom, Texas’s law requires the platforms to carry and promote user speech that they would rather discard or downplay. The platforms object that the law thus forces them to alter the content of their expression—a particular edited compilation of third-party speech. See Brief for NetChoice in No. 22–555, pp. 18–34. That controversy sounds a familiar note. We have repeatedly faced the question whether ordering a party to provide a forum for someone else’s views implicates the First Amendment. And we have repeatedly held that it does so if, though only if, the regulated party is engaged in its own expressive activity, which the mandated access would alter or disrupt. So too we have held, when applying that principle, that expressive activity includes presenting a curated compilation of speech originally created by others. Or, even more directly: But in case after case, the Court has barred the government from forcing a private speaker to present views it wished to spurn in order to rejigger the expressive realm. The regulations in Tornillo, PG&E, and Hurley all were thought to promote greater diversity of expression. See supra, at 14–16. They also were thought to counteract advantages some private parties possessed in controlling “enviable vehicle[s]” for speech. Hurley, 515 U. S., at 577. Indeed, the Tornillo Court devoted six pages of its opinion to recounting a critique of the then-current media environment—in particular, the disproportionate “influen[ce]” of a few speakers—similar to one heard today (except about different entities). 418 U. S., at 249; see id., at 248–254; supra, at 14–15. It made no difference. However imperfect the private marketplace of ideas, here was a worse proposal—the government itself deciding when speech was imbalanced, and then coercing speakers to provide more of some views or less of others. So the entire premise from the Commissioner is wrong. But Commissioner Andrew Ferguson decided to take up the concept that Holyoak suggested and take it way further. Way, way, way further. His concurring statement gets pretty stupid pretty quickly. We should address not just censorious conduct specifically, but also investigate the structural issues that may have given these platforms their power over Americans’ lives and speech in the first place. In particular, we must vigorously enforce the antitrust laws against any platforms found to be unlawfully limiting Americans’ ability to exchange ideas freely and openly. We must prosecute any unlawful collusion between online platforms, and confront advertiser boycotts which threaten competition among those platforms. First off, the pet peeve I mention all too often. The word you mean is censorial, not censorious. You’re using the wrong fucking word. But more importantly, what the actual fuck? Commissioner Ferguson is flat-out claiming that the FTC’s authority includes going after “advertiser boycotts” (something that has been held to be First Amendment protected expression). The only instances where that’s not the case are ones where boycotts are done for anti-competitive purposes. Commissioner Ferguson, companies deciding that they don’t want to be associated with crypto scammers and literal neo-Nazis is not that. Similarly, the line “unlawfully limiting Americans’ ability to exchange ideas freely and openly” is again utter fucking nonsense. Can we send these jackasses to First Amendment 101? Private platforms have a First Amendment right to moderate how they see fit, as the Supreme Court said just a few months ago. But Ferguson isn’t done yet with the crazy. Addressing potential structural problems is necessary even if the Commission successfully enforces the platforms’ terms of service. Suppose that, in response to Commission action, the platforms honestly disclose their content policies and comply with them. Consumers could then choose to use platforms that provided free-speech-respecting products rather than those that do not. This would be an improvement over the status quo. But the choice would be real only if there are suitable free-speech-respecting substitutes to the censorious platforms. X right now is such a platform. But that is a recent phenomenon; X was once as censorious as the rest. Its current turn toward free expression is due only to its new owner’s unusually firm commitment to free and open debate. Other online platforms remain far more censorious. Moreover, the major social media platforms may not necessarily be suitable substitutes for each other based on their characteristics and uses. They appear to occupy several unique niches, and a creator banned from one platform cannot count on earning a living by posting the same content on another platform. Again, you dope, censorious does not mean what you think it means. I am being censorious here, in that I am being critical. It has nothing to do with the suppression of speech. Second, what the actual fuck? No, X is not “free speech respecting.” At all. It has banned journalists for merely mentioning a name Elon disliked. It went way further than old Twitter did in banning a reporter and any mention of the JD Vance dossier that was leaked. It has declared that the term “cisgender” is an offensive slur that violates its rules. Elon recently admitted that he openly is downgrading links. There are many reports that if you mention competitor apps, those posts are hidden from the algorithm, something he appears to have done repeatedly whenever another site gets press attention. After getting into a fight with “Twitter Files” reporter Matt Taibbi, at one point Musk made it impossible to find Taibbi’s tweets through search. At one point he completely hid an anti-GOP ad that was getting attention. There are tons of reports of users being “shadowbanned,” and that’s using the misleading, but colloquial definition of deprioritizing the algorithmic reach of content, which Musk claimed was so pernicious it was why he had to buy Twitter — only to almost immediately embrace it as his preferred policy, including making sure to shadowban accounts he didn’t like. I could go on. The idea that ExTwitter is somehow more supportive of free speech than its predecessor company is only true in the sense that Musk is more willing to allow hate speech on the platform. In so many other ways it is not just more willing to suppress speech, it’s much more arbitrary in how it’s done. Claiming otherwise, as Commissioner Ferguson does here, suggests he’s ignorant, a fool, or a liar. Not sure which would be worst. Anyone who understands free speech knows full well that Elon Musk is not a supporter of free speech. Also, even if he were correct, nothing here makes sense. Ferguson is effectively claiming that there need to be multiple social media platforms that all have the same policies Elon prefers on speech to be “suitable substitutes.” But that’s insane. Do there need to be multiple newspapers with identical editorial policies for there to be competition? Of course not. The differentiation in editorial policies is part of the competition itself. Indeed, that’s exactly what former Rep. Chris Cox and current Senator Ron Wyden talked about in explaining why Section 230 was written, to encourage different online communities to offer up differentiated rules to allow for a variety of communities, so people could find which ones they wanted to participate in. As they noted, requiring multiple sites to all have the same rules is “the opposite of true diversity.” Section 230 itself states the congressional purpose of ensuring that the internet remains “a global forum for a true diversity of political discourse.” In our view as the law’s authors, this requires that government allow a thousand flowers to bloom—not that a single website has to represent every conceivable point of view. The reason that Section 230 does not require political neutrality, and was never intended to do so, is that it would enforce homogeneity: every website would have the same “neutral” point of view. This is the opposite of true diversity. The idea that the FTC has the authority and/or power to force every social media company to moderate with the same rules as ExTwitter is so batshit crazy that it makes you question how someone who thinks that should ever have a job at the FTC let alone be a Commissioner. From there, Commissioner Ferguson presents a litany of conspiracy theories, half-truths and flat-out lies. He claims that because platforms implemented their own rules to try to decrease harms from misinformation, it proves that even if platforms all have similar rules that might still violate the law (he’s wrong). But even more ridiculous is that he presents this as proof: And this phenomenon was never more obvious than in 2020, when major Big Tech platforms simultaneously banned reporting on, and discussion of, the Hunter Biden laptop story. That entire statement is false. Every single bit of it. There is a footnote, which cites only Commissioner Ferguson’s own statement in an earlier FTC effort, which also doesn’t say what he says here. We’ve covered the reality of the Hunter Biden laptop story before. It is not at all true that “BigTech platforms simultaneously banned reporting on, and discussion of” the laptop. Literally none of them did. Twitter definitely went the farthest, and it didn’t do any of what Ferguson says here. It banned only the sharing of the link, but allowed all other discussion (of which there was plenty). It also allowed other reporting on the story. And, facing a ton of (correct!) criticism over the block of that one NY Post link, Twitter reversed course the very next day. Facebook never banned any reporting or discussion of the story at all. It also didn’t ban any links to the story at all. For a short while, it put a flag on the story such that the link would not trend on the site until they had sufficient information to suggest that the story was legit. I am unaware of any other site doing anything at all with the link. Google has flatly denied ever taking any action with regards to the link. So why is Ferguson making up a thing that didn’t happen? Why is he claiming that they all “simultaneously” did things that none of them did? Why is this man entrusted with an FTC commissionership? And the craziest thing here, as I noted just above, is that ELON MUSK DID THE EXACT SAME THING, BUT EVEN MORE DRACONIAN when he banned all links to the story about the JD Vance dossier. But, of course, because it was in the other direction, everyone just ignores it. Think about what kind of world we’re living in here. Commissioner Ferguson pretends that what Twitter didn’t do (but which Elon did do) is somehow evidence of harms of other platforms, and argues that they should all be forced, by the power of the FTC, to follow Musk’s policies on other sites, even though Musk’s policies way more closely resemble the thing he’s complaining about… which no other site (other than Elon’s X) actually did. This is through the looking glass fantasy world bullshit. He then cites the Murthy v. Missouri case, hilariously admitting that the Supreme Court found no evidence of coercion to suppress speech, but then saying that discovery proved that it did happen. Literally the thing that the Supreme Court said didn’t happen, Ferguson says did happen. The fact that the Supreme Court explicitly found no evidence of government coercion to suppress speech doesn’t just undermine Ferguson’s argument, it demolishes it. But in the modern MAGA GOP, if you don’t like the facts, you just make up new ones. He then returns to the ridiculous idea that advertisers choosing in a free market not to advertise on a platform that fails to keep their brands safe and is increasingly just full of bots and spam… is somehow illegal: Shortly after Twitter (now X) was purchased by a free-speech champion, major advertisers raced for the door and refused to advertise on X. Concerted refusals to deal—also known as group boycotts—are illegal under the Sherman Act. According to X, this mass advertiser exodus was concerted, and was facilitated by the World Federation of Advertisers’ Global Alliance for Responsible Media (GARM) initiative. GARM described itself as a coalition of “marketers, media agencies, media platforms, industry associations, and advertising technology solutions providers to safeguard the potential of digital media by reducing the availability and monetization of harmful content online.” Ferguson can’t even stop there. He picks up on the other ridiculous conspiracy theory we’ve debunked multiple times, that NewsGuard (again, a site created by the very conservative Republican former publishers of the Wall Street Journal) is somehow engaged in “censorship” by… giving its opinion on how trustworthy news sites are. NewsGuard, for example, “is a domestic for-profit business that rates the credibility of news and information outlets and tells readers and advertisers which outlets they can trust.”16 Like GARM, NewsGuard claims to promote “brand safety” for advertisers. “NewsGuard leverages ‘human intelligence’ (journalists on staff) to dictate an outlet’s trustworthiness. Those deemed ‘untrustworthy’ are then compiled into ‘exclusion lists,’ with ‘trustworthy’ sites on inclusion lists,’ which are licensed to advertisers to instruct their ad agencies and ad-tech partners to keep their programmatic ads off/on these sites.” If a website gets a poor rating on NewsGuard’s “nutrition label,” it can choke off the advertising dollars that are the lifeblood for many websites— including platforms on which millions of Americans every day speak their minds. NewsGuard “goes to great lengths to create the appearance of nonpartisanship and objectivity,” but it seems to give a free pass to deceptive and biased news coverage by major left-leaning outlets. NewsGuard is, of course, free to rate websites by whatever metric it wants. But the antitrust laws do not permit third parties to facilitate group boycotts among competitors. Just last week, when the FCC’s Brendan Carr went after NewsGuard, I went into detail on how ridiculous it was, so I need not do so again here. But just think of what he’s saying here: that “more speech” in the marketplace of ideas could be considered an illegal boycott if multiple companies rely on that opinion to choose to no longer do business with a company. It is difficult to express how detached from reality this is. This is the exact opposite of supporting “free speech.” This is literally saying that if a private entity shares its opinion, and multiple third parties agree with that opinion and choose not to support a business the GOP likes because of that opinion, the speech can be deemed an illegal boycott. The only purpose of making such an argument is to create chilling effects for criticism of any entities Ferguson and the Trumpist GOP supports. This is the opposite of free speech and free markets. This is authoritarian censorial (not censorious) bullshit.

[Category: goat, twitter, x, 1st amendment, advertising, andrew ferguson, antitrust, collusion, content moderation, free speech, ftc, melissa holyoak, section 230]

— Telecom Industry ‘Think Tank’ Feebly Tries To Smear Community Owned Broadband

 

at 12/6/24 6:31am

Weve noted for decades how the U.S. broadband sector is a mess thanks to corruption and unchecked monopoly power working tirelessly to undermine U.S. telecom competition. The result is high prices, spotty access, slow speeds, and comically terrible customer service. Another way to put it is market failure. Caused by regulatory capture. In direct response, more than 778 U.S. towns and cities nationwide have built more than 450 community-run broadband networks. More often than not these networks provide faster, cheaper, better service to locals, and given theyre staffed by locals see more direct accountability among local residents (its hard to avoid public scrutiny when you shop at the same Walmart). Telecom giants like AT&T, Charter, and Comcast dont much like that for obvious reasons. Instead of focusing on improving service and pleasing consumers, theyve taken to doing things like ghost writing shitty state laws that ban community broadband. Or creating fake consumer groups designed to mislead locals about community broadband. Or lobbying Republicans for a federal ban on community broadband. Another favorite tactic of the industry is to throw some money at a free market Libertarian think tank in exchange for pseudo-science pretending that whatever they disagree with (merger regulatory review, consumer protections, community broadband) is secretly very bad. Enter the telecom industry funded Information Technology and Innovation Foundation (ITIF), which has published a new paper claiming that popular community broadband networks simply arent fair. Right off the bat, the paper platters several incorrect or misleading claims simultaneously: In most cases, local governments have neither the competence nor the economies of scale to deliver broadband as well as private ISPs. So, favoring government-owned networks wastes societal resources, creates unfair competition, and is frequently unsustainable in the long run. Community broadband is like any other business model: it requires competent leaders and a competent plan, so yes, in that sense sometimes municipalities or cooperatives lack the competency to accomplish their goals, just like say, Comcast. Nobody claims municipal broadband is magic. Doing it properly requires brains, solid leadership, and years of competent planning. And yes, some municipalities lack the economies of scale to deploy public fiber, which is why in places like Vermont, several municipalities now often bond together to form Communications Utilities Districts (CUDs), which gives them the combined leverage to accomplish deployments they might not have otherwise been capable of alone. As for creating unfair competition, thats amusing, given that telecom giants spend an estimated $320,000 a day lobbying the government to encourage consolidation and crush competition, stifling innovation and jacking up prices for everyone. Curious how you dont see a think tank dedicated to innovation writing long papers about that. Wonder why that is? As for municipal broadband not being sustainable, that might be a surprise to the entire state of North Dakota, where fiber cooperatives have delivered affordable fiber access since the early 00s. Or the numerous, award winning municipal broadband operations in places like Chattanooga Tennessee, much of Utah, and vast swaths of Colorado all delivering cheap gigabit fiber incumbents failed to provide. The ITIF report itself acknowledges that the sample size they used to measure community broadband (20 out of 700) was “too small for the data to represent all U.S. [government-owned broadband networks] reliably.” But of course they werent actually interested in measuring community broadbands impact reliably. Gigi Sohn, now the Executive Director of a group that advocates for community broadband access, didnt have much nice to say about the ITIFs latest study. She notes how its curious that the organization ignores that the existing U.S. telecom market a smattering of unpopular monopolies propped up by vast state and federal corruption doesnt constitute anything close to a fair or competitive market: ITIF conveniently forgets that big cable and telecom companies have benefitted to the tune of tens of billions of dollars from federal and state coffers and from the benefits of the use of local rights of way.  Those same companies collected billions of federal dollars from the Affordable Broadband Program and are lining up for Broadband Equity Access and Deployment (BEAD) funds as well. To suggest that incumbent ISPs somehow operate in a purely private “market-driven” world is to ignore reality. Big ISPs like AT&T and Comcast cant come out on their own and criticize community broadband, because such networks see vast, bipartisan support. Theyd be laughed out of the room. So instead they like to funnel their anti-competitive angst through proxy organizations that pretend to be objective academic enterprises. Again, if the U.S. telecom industry was such a big fan of level playing fields, they wouldnt be spending millions of dollars annually to tilt the playing field in their favor. And if think tanks purportedly dedicated to innovation actually cared about innovation, theyd recognize that some of the most creative, innovative efforts in telecom are currently happening in the community broadband space.

[Category: 1, itif, broadband, communications utilities districts, community broadband, cooperatives, fiber, high speed internet, innovation, telecom, think tank]

— GOG’s Game Preservation Program Gets Tested Early By Blizzard

 

at 12/5/24 9:18pm

It was only a few weeks ago that we discussed Good Old Games (GOG) return to its roots with the sites GOG Preservation Program. While GOG never stopped selling, you know, good old games, the site also expanded over the years to be a storefront for new releases and AAA games as well. But with this program, GOG committed to maintaining its preservation efforts. Games sold on the store that are also part of the preservation program now come with a commitment from GOG to keep these games compatible on modern hardware in any way possible, whether thats updating game code and wrappers where the IP holder allows it, or packaging the games with programs like DOSbox where it cant. And now the program is going to get an early test. Blizzard recently announced that it is releasing a remastered version of Warcraft and Warcraft 2 and, as a result, have announced the original versions of those games will be delisted from GOG in a little over a week from now. Currently, GOG has a DRM-free version of those games in a bundle on the site. So what is going to happen to those original versions of these games once GOG has to delist them? Well, for starters, GOG is incentivizing the purchase of that bundle by putting it on sale. And after that, true to their word, the preservation program will maintain those games, even after they are delisted from GOG for sale. GOG (aka Good Old Games), which recently included Warcraft I and II in its Preservation Program, with a Make Games Live Forever tagline, suddenly finds itself with a new policy to figure out. So GOG is putting the Warcraft I & II Bundle on sale (discount code MakeWarcraftLiveForever for $2 off) and is letting folks know that if they buy it before December 13, they will keep access to it after the delisting, complete with offline installers. That is also how it will work from now on, the team writes on its blog. Going forward, even if a game is no longer available for sale on GOG, as part of the GOG Preservation Program, it will continue to be maintained and updated by us, ensuring it remains compatible with modern and future systems, GOGs post states. This is a preservation program in action. Once these titles are bought on GOG, the company stands to make no money from them in the future. Despite the lack of monetary incentive, however, GOG will take any action it can to maintain those games after purchase, updating them as possible to keep them working on modern hardware. Im not aware of any other storefront that is making this kind of effort to keep older games around after the publishing company no longer wants to maintain them. Its quite a novel commitment, keeping non-revenue-generating games playable for buyers, even after a publisher no longer makes them available for sale. The Warcraft titles certainly wont be the only games for which publisher enthusiasm lags behind GOG and its classic gamers. As noted at the Preservation Programs launch, for some titles, GOG does not have the rights to modify a games build, and only its original developers can do so. So if GOG cant make it work in, say, DOSBox, extraordinary efforts may be required. Thats why all of this comes with the caveat that GOG will maintain the games in any way possible. Where its not possible, the publisher and IP rightsholder still maintains a stranglehold as to whether this cultural output will be disappeared. As I said in my previous post, the real work to be done is to build a program around these efforts with as much buy in from developers and publishers as possible. That would be the way to remove the IP shackles from these preservation efforts.

[Category: 1, blizzard, gog, delisting, preservation, preservation program, video games, warcraft]

— DOJ Investigation Proves That If A PD Isn’t Known For Its Constant Rights Violations, It’s Because It Hasn’t Been Investigated Yet

 

at 12/5/24 5:14pm

Ive been doing this for more than 10 years and I can assure I have yet to read a DOJ civil rights investigation report that has concluded everything looks pretty OK at this cop shop. Every and I mean every DOJ investigation is followed by a report that can be accurately described as scathing. And thats often an understatement. Thats how the Associated Press describes this report [PDF], which was released earlier this month by the Department of Justice. Police in New Jersey’s capital have shown a pattern of misconduct, including using excessive force and making unlawful stops, the Justice Department said Thursday, in a report documenting arrests without legal basis, officers escalating situations with aggression and unnecessary use of pepper spray. [] The DOJ report paints a scathing picture of a department with about 260 sworn officers in a city of nearly 90,000 people, where many struggle due to poverty and high crime rates. The city is uniquely deprived of a property tax base that could fund public safety because of the many state government buildings. And so it is. Theres no good news in here. Theres only the things you expect when you read a DOJ report. That the citys residents are suffering further indignities like the unique-to-a-state-capital public funding shortfalls only makes the findings worse. Where compassion and connection would matter most, the Trenton PD has decided to go in the other direction, apparently deciding residents should be further punished for having the misfortune of residing in this neglected capital city. The report opens with an incident that seems to have been ripped from the pages of the Training Day script. On a May afternoon in 2022, a Black woman sat in her parked car on a Trenton street and spoke to her friend, a Black man who was standing in the street, through the car window. Three Trenton Police Department (TPD) officers assigned to a unit that focused on drug and gun crimes noticed the man reaching into his satchel and concluded that the woman was buying drugs. The officers drove the wrong way down the one-way street toward the parked car. The man ran off and two of the officers chased him. One officer stayed behind, opened the car door, and grabbed the woman by the wrist. As the woman asked, “What is going on? Why are you arresting me?”, the officer handcuffed her and pulled her by the handcuffs. The woman protested that the officer was hurting her. “Get the fuck out of the car or you’re going to get pepper sprayed,” the officer said. The police found no drugs after searching the woman and her car. The other officers returned to find the woman handcuffed in the back of the police car, and they asked the arresting officer why he arrested her. “I don’t know,” the officer replied. Not an anomaly. This is the next paragraph of the DOJs report: Similar scenes have played out repeatedly on Trenton’s streets. With inadequate supervision and little training on the legal rules and well-accepted police procedures that should constrain their conduct, Trenton police officers engage in a pattern or practice of violating those rules. Thats a nice way of saying cops dont care what they do to Trenton residents and, more importantly, their supervisors and superiors dont care what these cops do either. The DOJ initiated this investigation last October. Its investigation involved dozens of interviews, full reviews of PD incident and arrest paperwork, as much information as it could gather on internal discipline, and whatever else it was able to access. The upshot? We find that Trenton police officers, particularly those in specialized enforcement units, conduct illegal pedestrian stops and searches, and unlawfully prolong traffic stops. They arrest people without a legal basis. They are quick to escalate situations through their aggressive tactics and refusal to answer people’s legitimate questions. Officers use unreasonable force against people who are not threatening them, including spraying them with pepper spray. The other upshot? A city already hurting from a scarcity of public funding has asked its residents to pay more than $7 million in lawsuit settlements over the past couple of years. That may not seem like much when compared to larger cities with much larger police forces, but this is a community of less than 90,000 people being served by 250-260 sworn police officers. Thats a big ask when Trentons poverty rate is twice that of the rest of the state. While officers interviewed by the DOJ expressed appreciation for the City of Trenton and its residents as well as expressing a desire to improve the PDs relationship with the community, we must always remember actions speak louder than words. And these are the actions: TPD officers frequently use force that violates the Fourth Amendment. TPD officers rapidly escalate everyday interactions, resorting to unreasonable force without giving people a chance to comply with orders. TPD officers use unreasonable physical force where they face little or no threat or resistance. And TPD officers use pepper spray unreasonably. Officers spray people who pose no threat but merely challenge officers’ authority—which, on its own, is not grounds for the use of force. If you cant visualize what this means in terms of day-to-day interactions, the DOJ has thoughtfully provided a real-world example of the behavior it noted and criticized in the previous paragraph: For example, a man died after TPD officers escalated an argument to the point of throwing him to the ground and pepper spraying him, even though the man posed no threat. TPD officers went to arrest a young man in connection with an earlier domestic incident. The man’s 64-year-old father, who was not involved in the domestic incident, met the officers outside his front door and told them he would not let them into his house without a warrant. While waiting for a supervisor to arrive, one of the officers continued to escalate the conversation, taunting the father and son—saying the son was talking like he was “retarded” and asking if the father was “crazy” and “need[ed] to go to psych.” After the father turned the doorknob of the front door, officers threw him across his front porch and against the railing, and slammed him face down on the porch steps. While officers handcuffed him, another officer pepper-sprayed him in the face. The officer who escalated the encounter inaccurately reported that the father physically presented a “threat/attack” to the officer. He also claimed that he grabbed the father because he feared that a dog inside would come out—a factor that no other officer mentioned and that video footage discredited. The father died at the hospital 18 days later from respiratory failure. Thats basically it: one cop escalated a situation, reacted violently to his own provocation, killed an innocent person, and then lied repeatedly to cover it up. If that doesnt move you to rage, how about the actions of this uniformed piece of shit? In another incident, an officer beat a woman in the head with a police radio over a dozen times at a soup kitchen. The officer had told the woman she was not allowed at the building and had to leave. The officer claimed that the woman hit first and that the officer “inadvertently” hit back in self-defense. Even if this were true, it did not justify the officer repeatedly striking the unarmed woman’s head—a form of deadly force under TPD’s policy. The officer stopped only when staff and other clients pulled the officer and the woman apart. The beating left a three-inch gash on the woman’s scalp and a bruise above her eye. Or this officer, who undoubtedly has plenty of strong opinions about the thinness of blue lines: In one incident, an officer learned that a driver involved in a car accident had an expired registration and suspended license. The driver was upset to learn that her car would be towed, argued that she did not want to leave her car, and bumped the officer with the car door while the car was parked. Without warning, the officer pepper-sprayed the woman as she sat inside her car and her seven-year-old child watched just outside the car, also at risk of exposure to the spray. Rather than helping the officer gain control, the spray had the opposite effect as the woman wailed in pain and refused to get out of the car. The officer then pulled her by her pant legs, bringing the woman’s pants down and exposing her buttocks for over three minutes. When a family member asked how she could file a complaint against the officer, the officer replied that she could file a complaint, but said, “[I]t’s going nowhere.” The first part is awful. The last sentence, unfortunately, is the truth. Thats another thing exposed by this investigation. The Trenton PD has zero interest in punishing cops for misconduct, rights violations, or excessive force deployment. TPD supervisors overwhelmingly sign off on force reports without meaningfully reviewing them. Even when supervisors claim to have reviewed use of force incidents, its clear that they either (1) havent or (2) are just going to pencil-whip whatever until the officer under investigation is cleared of wrongdoing. Even when supervisors include more, the additional approving language is conclusory and boilerplate, using phrases like “Use of Force report reviewed and I concur with the level of force used as it relates to this incident,” “Defendant resisted arrest,” or “BWC reviewed,” without explanation or analysis. Moreover, we saw no evidence that supervisors regularly review all available information about force incidents or ask officers about their decisions to use force. How do you fix this? Well, we can be sure a DOJ investigation, while useful in terms of information, seemingly has zero effect on police work going forward. The heat an investigated cop shop will feel is intense, but brief. The DOJ has a whole nation of police to police. Smaller locales are limited in both tools and budget to instigate meaningful reform. Like any true change, the entity that needs to change has to want to do it. And thats something that cant be accomplished, no matter the intensity of the criticism or the public shaming that accompanies it. We need better cops, which means we need better law enforcement officials. And that means we need local politicians who care as much about accountability as we do. But until all of these interests combine, were just going to be left with the police forces we have ones that will do whatever they want for as long as they can get away with it.

[Category: 1, civil rights investigation, doj, excessive force, new jersey, police misconduct, trenton police department]

— FTC Joins CFPB In Finally Taking Aim At Data Brokers As Trumpism Looms

 

at 12/5/24 2:34pm

The Federal Trade Commission is once again taking action against a data broker for illegally collecting and selling the sensitive data of Americans, including information on peoples trips to doctors offices, abortion clinics, and places of worship. This time the FTC is taking aim at Gravy Analytics and its subsidiary Venntel, which the FTC announcement and complaint says violated the FTC Act by illegally selling sensitive consumer location data without obtaining verifiable user consent for commercial and government uses. “Surreptitious surveillance by data brokers undermines our civil liberties and puts servicemembers, union workers, religious minorities, and others at risk,” said Samuel Levine, Director of the FTC’s Bureau of Consumer Protection. “This is the FTC’s fourth action taken this year challenging the sale of sensitive location data, and it’s past time for the industry to get serious about protecting Americans’ privacy.” Weve long noted how the data broker space is an unregulated mess, routinely over-collecting data, selling access to any nitwit with two nickels to rub together (including foreign intelligence or criminals), and failing to generally secure it. Wired last month had a piece detailing how it was trivial to purchase U.S. troop and intelligence officer movement data as they visited sensitive U.S. locations in Germany. An earlier scandal highlighted by Senator Ron Wyden involved the sale of abortion clinic visitor location data to right wing activists, who then targeted those vulnerable women with health care disinformation. More recently, a data broker was found to have leaked the social security numbers of 270 million Americans. This sector has been a hot mess. This was all avoidable long ago. But U.S. officials repeatedly put greed ahead of public safety, consumer privacy, and even national intelligence for much of the last two decades. The targeted snoopvertising industry was simply too damn profitable to touch (it also helps the feds dodge warrants), resulting in scandal after scandal thanks to our refusal to pass a modern privacy law or regulate data brokers. The CFPB also implemented new rules this week prohibiting the data broker collection and monetization of social security numbers. And while its great that some regulators are finally taking things seriously, why exactly were waiting until just months before Trump 2.0 dismantles federal governance, the CFPB, and likely the entirety of federal consumer protection is a question worth asking.

[Category: 1, gravy analytics, venntel, cfpb, consumers, data brokers, ftc, natsec, privacy, security, social security]

— LA Times Owner To Personally Review Opinion Headlines To Avoid Offending Elon Musk

 

at 12/5/24 12:08pm

Billionaire media owners are getting bolder in their attempts to suppress opinions they dislike. The latest example comes from LA Times owner Patrick Soon-Shiong, who reportedly plans to personally review all opinion headlines to ensure they dont offend Elon Musk or others that Soon-Shiong is trying to impress. Considering the billionaire class keeps pretending that they’re concerned about free speech, then doing shit like this suggests it’s really speech criticizing themselves and the levels of corruption and obscene wealth that they actually dislike. In October, we covered the decisions by the billionaire owners of the LA Times and the Washington Post to block both papers from running editorials endorsing Kamala Harris. WaPo owner Jeff Bezos tried to defend this decision by claiming that it was in response to Americans losing trust in the media. However, as we pointed out, it seemed a lot more likely that billionaires aggressively trying to control our lives through the media is a better explanation for that loss of trust. We had noted that LA Times owner, Patrick Soon-Shiong, had tried to get a cabinet position in the first Trump administration, which might have explained his reasoning. And now it appears he’s taken things to a new level. According to Oliver Darcy (who is very plugged in to the media world), Soon-Shiong got so upset about an opinion piece that criticized Elon Musk that he has declared that all headlines for opinion pieces must be run through him personally before the pieces can be run. This has alarmed the newsroom. As Darcy notes, this all seems part of a pattern of Soon-Shiong trying to ingratiate himself into Trump/Musk circles: Soon-Shiong, who once fashioned himself as a Black Lives Matter-supporting vaccine proponent, has morphed into a Robert F. Kennedy Jr. and Jennings fanboy. Since Trump’s victory in November, Soon-Shiong has turned to X to criticize the news media, praise Trump’s cabinet picks, and appeal to a MAGA audience. The change in behavior has confounded his journalists, who wonder what happened to the Soon-Shiong whose newspaper enforced strict Covid restrictions and emphasized its support for social justice causes. But Soon-Shiongs efforts to reduce the appearance of bias go beyond just reviewing headlines. Darcy notes that Soon-Shiong’s supposed “solution” to complaints of “biased news” is that all stories published by the LA Times will have an AI-powered “bias meter” on them. This seems like a deeply misguided idea, designed mainly to placate critics who see any coverage they dislike as biased, rather than to do anything useful. Especially in an age where it has been shown repeatedly, and scientifically, that the Republican world is buried in layers upon layers of bullshit. That means, as Stephen Colbert once noted, “reality has a liberal bias.” In such a world, reporting accurately may be deemed as “biased” towards liberal beliefs. When one political party is increasingly untethered from facts, attempting to artificially balance coverage is not actually going to improve trust or accuracy. It’s just going to cause people to dig in further on their beliefs across the board, based on AI systems whose entire purpose is to make shit up. This kind of meddling by billionaire owners will only further erode public trust in media. It sends the message that news outlets serve the interests of the wealthy and powerful rather than the public. And in an era of rampant misinformation, it will drive more people to retreat into confirmation bias bubbles, explaining away any news they dislike as “biased.” We like to think that a big part of the media’s role in society is to hold the powerful accountable. But now the powerful are transforming the media to make sure they can’t be held accountable at all. Yes, of course, as the owner of the newspaper, Soon-Shiong has every right to do whatever stupid shit he wants to do with it. He has the right to do all of this. Just as I have the right to call out how stupid and trust-destroying it is. And, as Darcy notes, it’s demoralizing the reporters in his newsroom: The meddling has alarmed staffers, some of whom now harbor concerns that the billionaire presents an active danger to the paper they once believed he might help rescue. The man who was supposed to be our savior has turned into what now feels like the biggest internal threat to the paper, one staffer confided in me Wednesday, speaking on the condition of anonymity, like others, because they were not authorized to talk to the press. This story is based on nearly a dozen conversations over the last week with current and former staffers at the newspaper. The staffers described a publication depleted of its spirit in which employees are offended, confused, and frustrated. After a year of turbulence in which the Times underwent painful layoffs and lost top editor Kevin Merida, along with several other high-ranking editorial leaders, staffers are now coming to terms with their rule-by-tweet owner using the newspaper as an apparent vehicle to appeal to Donald Trump. Several veteran staffers told me that morale has never been lower, with some people even wondering whether the newspaper will be disfigured beyond recognition under this new era of Soon-Shiongs reign. It’s difficult to see how any of this is useful as journalism. It seems entirely based around massaging the egos of certain billionaires.

[Category: la times, ai, bias meter, editorial, elon musk, journalism, patrick soon-shiong, trust]

— Daily Deal: Microsoft Office Professional Plus 2019 for Windows

 

at 12/5/24 12:03pm

Microsoft 2019 Professional Plus is one of the most popular business suites globally. This new version of Office 2019 has been redesigned with more powerful features and improved cloud connectivity, allowing you to do more in less time. Office 2019 has a lot to offer in terms of features and functionality. It provides users with the ability to produce, revise, and organize documents, spreadsheets, slideshows, emails, and databases. Some of the fresh enhancements featured in Office 2019 include enhanced inking in all Office programs, new analysis capabilities in Excel, new presentation tools in PowerPoint, and updated features in Outlook to manage emails and contacts. Its on sale for $32.97 for a limited time only. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

[Category: 1, daily deal]

— Court Says There’s Nothing Unconstitutional About Warrantless Seizures, Searches Of An Immigration Lawyer’s Phone

 

at 12/5/24 10:29am

Theres little thats more impermeable than the US border. I mean, people flow across it all the time, often without being vetted, but courts seem to agree the only thing that really matters is what border agencies are trying (and failing) to accomplish. Whatever rights need to be abridged, paused, or outright discarded are just the price legal US residents need to pay for this illusion of national security. Not for nothing are areas near our borders (which includes anything within 100 miles of a border crossing or international airport) referred to as Constitution-free zones. That these zones encompass a large percentage of the US population rarely seems to matter when courts handle cases involving warrantless border searches. What was historically limited to pat downs of individuals and cursory searches of their vehicles and luggage has now been extended to invasive searches of all kinds of personal information, thanks to ubiquity and ever-increasing power of cell phones and laptops. Given this table-setting, its not all that difficult to predict whats being served up here. (via Courthouse News Service) In an altogether unsurprising decision [PDF], a Texas federal court has ruled no ones rights are violated when CBP or ICE agents seize an immigration lawyers phone without a warrant and run invasive searches to access the devices contents. Heres the reality of George Aniboweis day-to-day dealings with border security agencies, helpfully recounted by a court that ultimately doesnt see anything wrong with this. Anibowei, a lawyer, is a naturalized U.S. citizen who was born in Nigeria. He owns a small law practice where he primarily handles immigration matters. Anibowei travels several times a year, often internationally, for both work and personal reasons. In October 2016 CBP officers at the Dallas-Fort Worth International Airport seized Anibowei’s work cell phone, without his consent or a search warrant, and advised Anibowei that they were going to copy the hard drive. When Anibowei protested, the officers gave him a flyer explaining their legal authority to search and seize his phone under CBP Directive No. 3349-049, Border Search of Electronic Devices Containing Information (Aug. 20, 2009) (“2009 CBP Directive”). Anibowei’s work cell phone contains sensitive information about his clients and their cases, including call logs, voice mails, text messages, and an archive of Anibowei’s work emails with drafts of confidential filings and other information involving removal proceedings adverse to DHS. At the time of filing his second amended complaint, CBP agents had searched Anibowei’s phone at least four additional times. He intends to continue traveling internationally, but he now does so without his work phone because of the risk of further invasions of his and his clients’ privacy. He continues to carry his personal phone when he travels, which also has access to his work email. Now, this lawsuit may have failed because Aneibowei didnt limit his proposed recourse to findings of unconstitutional behavior. He also sought to have the operative CBP and ICE directives nullified. But even if the court feels the latter goes too far (which it does), it somehow still arrives at the conclusion that searching a lawyers phone and accessing privileged communications is completely legal and constitutional. The court says ICE and CBP have since the original 2016 violation altered (albeit minimally) their border device search policies, mainly in reaction to the extremely few court rulings that mandated new restrictions on these searches. Apparently, this means Aneibowei cant seek any other form of relief (like a settlement for previous rights violations) because by the time this court finally got around to issuing a ruling on this case, the government had moved the goalposts. (All emphasis mine to highlight the operative dates of the citations, which are all years after the incidents detailed in this lawsuit.) In the Fifth Circuit, the government does not need individualized suspicion to conduct a routine manual cell phone search at the border, and non-routine searches require only reasonable suspicion. See United States v. Castillo, 70 F.4th 894, 898 (5th Cir. 2023); Malik v. U.S. Dep’t of Homeland Sec., 78 F.4th 191, 200 (5th Cir 2023). Anibowei “recognizes the binding force of Castillo and Malik” and that this court is bound by them. The 2018 CBP Directive requires reasonable suspicion or a national security concern for an advanced search of an electronic device. Similarly, the 2018 ICE Guidance, which updates the requirements for advanced border searches of electronic devices, instructs agents not to perform advanced border searches of electronic devices without reasonable suspicion. Accordingly, to plead a plausible claim for relief, Anibowei cannot rely on an allegation that the Directives’ policies—which comply with this circuit’s requirements for a border search of an electronic device to be reasonable—violate the Fourth Amendment. Im not sure what this is supposed to mean in terms of legal guidance, but its pretty clear what it means for the plaintiff: hes screwed. Somehow, regular people are denied redress because the government did things after it was sued, but government employees are only expected to comply with judicial precedent/policy changes that went into effect before they committed the rights violations theyre being sued over. Heads, the government wins. Tails, the plaintiff loses. And courts have actually refused to state claims are moot just because the government stopped doing the bad thing after being sued. In this case, the policy changes were prompted by court decisions. And while its never a good idea to apply this sort of thing retroactively, its a bit rich to claim the substance of the plaintiffs complaint has been negated just because the government wont be screwing him over quite as frequently in the future. All thats left for Aneibowei is the option to keep doing the thing that hasnt worked for the past decade: amend his lawsuit and sue again. But, given the precedent that was delivered after the rights violations the lawyer has already experienced, its just going to be a waste of time and money. And, since reasonable suspicion generally doesnt mean what those two words actually mean, hes likely going to experience the same sort of plausible rights violations in the future, despite the belated policy changes. This decision helps no one but the government. Because of that, the government has no reason to alter its tactics and will continue to help itself to the contents of devices owned by US residents who dare to treat the federal government as an adversary when litigating on behalf of their clients.

[Category: 1, 1st amendment, 4th amendment, border search exception, border searches, cbp, dhs, ice, privileged communications]

— CFPB To Crack Down On Data Broker Financial Data Sales. Assuming It Survives Trumpism.

 

at 12/5/24 6:33am

The Consumer Financial Protection Bureau (CFPB) is proposing a new rule limiting data brokers’ ability to sell Americans’ sensitive personal and financial information assuming it survives the looming corruption-fueled assault on corporate oversight under the pretense of efficiency. According to an agency press release, the agency is looking to update the Fair Credit Reporting Act (FCRA) to place greater restrictions on the sale of personal identifiers like Social Security Numbers and phone numbers collected by data brokers, while also making sure peoples financial data was only shared for legitimate services (like getting approval for a mortgage). Weve long noted that because the U.S. has historically been too corrupt to pass a privacy law or regulate data brokers, data broker collection and sale of sensitive data is an absolute shitshow, often resulting in a parade of ugly scandals. Like recently, when Wired found it to be easy to buy the sensitive movement data of U.S. military and intelligence personnel. The CFPB appears to have been driven to action by a recent scandal involving the data broker named National Public Data, which was hacked and leaked more than 272 million unique Social Security numbers from US residents, along with 600 million phone numbers. Whoops a daisy. “By selling our most sensitive personal data without our knowledge or consent, data brokers can profit by enabling scamming, stalking, and spying,” said CFPB Director Rohit Chopra. “The CFPB’s proposed rule will curtail these practices that threaten our personal safety and undermine America’s national security.” CFPB exists to protect consumers from endless financial fraud, though rich brunchlords like Mark Andreesen have made it a top target in recent years, saying the agencys only real purpose is to “terrorize financial institutions.” Donald Trump and Elon Musk have also proudly insisted theyll dismantle the consumer watchdog under the pretense of government efficiency. Unfortunately, it will be up to Trumps CFPB to finalize this proposed rule, and he and his billionaire donors are intent on shutting this agency down to take away a key advocate for American consumers, Senator Ron Wyden, who has probably done more than anybody in Congress to spur action on this subject, said in a statement. The Supreme Court has already made several rulings aimed at curtailing the independence of regulators with an eye on making most federal consumer protection illegal. Its simply more corruption and grift, with Musks DOGE (Department of Government Efficiency) providing pseudo-populist pretense that its all being done for the greater public good. I still dont think the oligarchic kakistocracys effort to snuff out all consumer protection standards is being treated with adequate seriousness by the press and policy experts. Hopefully that comes later. Before it can be snuffed out, the CFPB is also rushing to implement a new ban on including medical debt in credit reports.

[Category: 1, national public data, cfpb, consumer financial protection bureau, consumer protection, data brokers, financial data, privacy, security]

— Mass Puppycide Ends Career Of Tennessee Deputy Who Probably Never Should Have Been A Cop

 

at 12/4/24 8:43pm

Cops just seem to love killing peoples pets. While this act is often justified by (often ridiculous) claims of officer safety, a whole lot of killing of peoples dogs seems to happen just because law enforcement officers have the means and the opportunity to carry this act out. Nothing involving the killing of peoples dogs can be considered anomalous. The US Department of Justice pointed this out years ago, albeit not officially. In 2014, community-oriented-policing program head Laurel Matthews stated that cops are killing up to 30 pets a day, something she referred to as an epidemic. If anyone wants to argue this estimate isnt accurate, theyre free to do so. But it isnt difficult to believe American law enforcement is capable of killing 30 pets a day across the nation, especially when theres little reason for them not to shoot any animals they see while inviting themselves onto other peoples private property. But most cops are willing to limit themselves to one or two killings per incident. Former Tennessee law enforcement officer Connor Brackin, however, decided he couldnt call an end to this animal welfare visit until hed personally killed all but one the animals he was supposed to be saving. (h/t Reason) Conner Brackin, a 24-year-old police deputy with the McNairy County Sheriff’s Office, was arrested and charged with aggravated animal cruelty on Tuesday following an investigation by the Tennessee Bureau of Investigation. On Nov. 4, Brackin responded to an “animal welfare concern” in Bethel Springs, a city located around 100 miles east of Memphis. According to the affidavit, Brackin spoke with the person who made the complaint about multiple dogs on the neighboring property, some in pens, some in two different trailers. Brackin released one of the dogs from a pen and then “loaded his service rifle and pistol and began firing into the campers at the dogs.” He allegedly fired eight times, killing seven dogs. Thats not insane. Thats pyschopathic, which is something else altogether. The owner of the dogs, Kevin Dismuke, didnt know law enforcement was taking a look at his dogs until after Deputy Brackin had killed all but one of them. He was left to discover the fact on his own upon his return to his trailer, where he was greeted by one dead dog and then several others in quick succession. The McNairy County Sheriffs Office tried to spin this a bit: The McNairy County Sheriff’s Office stated Brackin observed two dogs in “extremely poor health” and one was “already deceased.” After looking for the dogs’ owner, Brackin let a neighbor take one of the dogs and said that he had been “cleared to put down the remaining animals safely by my supervisor.” But theres no force behind these words, much less any real sincerity. The Sheriffs Office doesnt really think Deputy Brackins actions were justified. Nor does it care what the dogs owner thinks about this impromptu guns-out raid performed by the deputy. We already know most law enforcement agencies are rarely sincerely concerned about the misery their officers cause. But we do know the Sheriffs Office didnt feel these actions were justified, otherwise it might have stepped in to protect one of its own before this happened: On November 7th, at the request of 25th Judicial District Attorney General Mark Davidson, TBI special agents began investigating the incident.  Agents subsequently developed information that on November 4th, the McNairy County Sheriff’s Department received an animal welfare concern call.  Deputy Connor Brackin (DOB: 07/26/2000) responded to the residence in the 8300 block of SR 199 in Bethel Springs, to check the condition of the dogs.  Bracken released one of the dogs to the complainant.  For reasons under investigation, he fired his duty weapon, shooting and killing seven dogs on the property. On Tuesday, TBI agents obtained warrants for Brackin, charging him with seven counts of Aggravated Cruelty to Animals and eight counts of Reckless Endangerment.  Brackin turned himself in and was booked into the McNairy County Jail. If the deputy felt his employer would have his back, he never would have turned himself in. If the Sheriffs Office thought Deputy Brackin was worth keeping on staff, it would have acted on his behalf. And it certainly wouldnt have accepted the 24-year-old officers resignation if it thought his actions were justified. The now-former deputy is on his own. And, on top of this, hes feeling the weight of his (extremely short) law enforcement past being brought to bear. [Brackin] graduated from the training academy in September 2022. In less than two years, his personnel file shows an administrative summons with allegations from two different shootings. A statement from a hearing in May 2024 says Brackin “did not shoot the subject and was merely returning fire to the area where he observed a muzzle flash and the sound of gunfire.” It was recommended he undergo remedial training. The second incident, less than two months later, ended with someone dead. The TBI said the local district attorney called them in to investigate the shooting from March 2023. In May 2024, the end of Brackin’s probationary period, “Chief Corley found it was in the best interest of the community, the City of Jackson, and the Jackson Police Department to not retain Officer Brackin as a police officer.” Brackin resigned a day later. Getting canned less than two years in means someone is so bad at being a cop even cop shops wont stick out their neck for him. Fortunately for bad cops, theres always another cop shop willing to hire anyone to be a cop, especially if theyve got any amount of experience under their belt. But two years after this rescue from the pile of law enforcement rejects, Connor Brackin is once again jobless. Unfortunately for him, this second separation from the Thin Blue Line was voluntary and comes coupled with multiple criminal charges. Whatever comes out of this wont keep Brackin from seeking law enforcement options in the future. But maybe just maybe it will prevent law enforcement agencies from hiring him.

[Category: 1, bethel springs, connor brackin, cops killing dogs, dogs, mcnairy county, police misconduct, tennesee, tennessee bureau of investigation]

— Square Enix Appears To Be Using The DMCA Takedown Process To Silence Criticism

 

at 12/4/24 4:41pm

Weve talked plenty about the ways that the DMCA process specifically is wide open for fraud and abuse. There are plenty of forms this sort of thing can take, of course, but one of the more troubling among them is the use of the DMCA process specifically to disappear critical commentary that a copyright holder doesnt like. Typically you see this sort of thing activated in a way that at least straddles the line of what copyright law actually allows. For instance, you might have a copyright holder that is generally okay with some uses of their work online, but then turns to the DMCA process when those uses come along with criticism. A selective enforcement of copyright law based on undesired commentary, in other words. But all of that nuance in approach appears to have gone out the window when it comes to how Square Enix is using the DMCA process to take down commentary on a Reddit thread dedicated to the Life is Strange franchise. The subreddit r/pricefield is a community dedicated to the Life Is Strange franchise, primarily shipping the lead character of Max with her love interest Chloe from the first game. It has 12,000 members, many of whom have engaged in discussions critical of the decision to omit Chloe from Double Exposure. The subreddit is an independent space for Life is Strange fans to talk fan theories, share fan art and discuss the games, and is wholly unaffiliated from Square Enix. These fans noticed that more and more of their posts and comments were being taken down by Reddit, after a third party began issuing copyright violations. In response, and fearing that they risked further penalties from Reddit, moderators of the subreddit published an open letter to Square Enix, stating that they believe someone at the company, or developer Deck Nine, was ‘wilfully removing non-infringing content for reasons other than infringement’. They believe this is happening because Square Enix is unhappy with not having editorial control over the page. The open letter is long and detailed and worth a read on its own. However, some of the very specific allegations of how Square is abusing the DMCA process is detailed in links within it. The context here is that Square has also issued takedowns before and after the release of Life is Strange: Double Exposure for leaked and spoiler content. I still think thats stupid, but thats the sort of line-straddling to which I referred above. But if you actually dig into what else the company is issuing takedowns over, some of it is supposedly purely publicly available information and the commentary around it. I havent posted cause for my mental health and cause the main sub banned me over some small shit, but tell me how a certain third party submitted a takedown notice for me. I got one of these before for sharing leaks, which was valid, then I removed all my main posts talking about leaks. But the topic they want me to take down is just a recap of dev comments???? This isnt leaked content, this isnt shit from DE, this is THEIR COMMENTS TO THE PLAYERBASE I cant see the images now so I dont remember what I shared for the dev comments, but since when were publicly made comments eligible for takedown notices???? I didnt include a leak or shit from the actual game, did I???? Even if some small amount of game content was included in this post, it would have been used in support of the commentary wrapped around it. You know, fair use. And whatever is going on here, it isnt happening in a vacuum. Square has a well-documented history of shutting down fan content, sometimes doing so in a nearly sadistic way, and it even has a history of taking punitive action based on reviews and commentary for its games that it doesnt like. In other words, this sort of activity tracks with Squares general behavior towards its fans. Now, there are punishments for bad-faith DMCA takedowns, but they are rarely invoked. And it sure would be nice if platforms like Reddit both dug into whether content like this is actually infringing as well as provided a more detailed notice to the person having content taken down to detail out what was actually considered copyright infringement. But what we know for sure is that Square Enix has such heartburn over critiques of its games that it is willing to use the DMCA takedown process to try to silence it. And whatever else that may be, it certainly is shitty.

[Category: 1, square enix, content removals, copyright, criticism, dmca, suppressing speech]

— Techdirt Podcast Episode 407: Brendan Carr Is A Threat To Free Speech

 

at 12/4/24 2:29pm

Support us on Patreon » Weve written about the many signs that Trump FCC pick Brendan Carr is eager to be Americas top censor. Recently, Mike once again joined Andy Levy on The New Abnormal podcast for a discussion about how much of a threat Carr represents to free speech and the First Amendment, and you can listen to the whole segment here on this weeks episode. You can also download this episode directly in MP3 format. Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts or Spotify, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

[Category: 1, andy levy, brendan carr, donald trump, fcc, first amendment, free speech, podcast] [Link to media]

— Federal Court Says Dismantling A Phone To Install Firmware Isn’t A ‘Search,’ Even If Was Done To Facilitate A Search

 

at 12/4/24 12:48pm

This is probably the correct conclusion to arrive at, at least at this point in extremely limited jurisprudence, but it still raises some questions courts will likely have to confront in the future. Is manhandling a phone to make it responsive to a search itself a search, or does the Fourth Amendment not kick in until after the search of the phones contents occurs? (h/t FourthAmendment.com) As is often the case when Fourth and Fifth Amendment concerns are raised during evidence suppression efforts, this one involves alleged possession of child sexual abuse material. That doesnt mean the defendant doesnt raise good points. That just means the public is less likely to sympathize with the defendant. It also means given the hefty sentences often handed to child sexual abusers they have more reason than most to try to get the evidence suppressed. It doesnt work here, though. The court notes in the opening of its decision [PDF] that the final search occurred months after devices were seized. And the search that produced the evidence used here wasnt possible until after the government had done a lot of other stuff to the suspects phone. The Government executed a search warrant at Defendant’s residence and seized fifty-two devices, including an iPhone and an iPad. Law enforcement identified contraband on several devices, but could not examine the iPad, which was passcode-protected, or the iPhone, which would not power on. The Government retained the iPad and iPhone for over a year. Eventually, with the assistance of a digital forensics expert who had not previously been involved in the investigation, the Government was able to repair the iPhone and power it on. The Government then applied for, and received, a new search warrant. Pursuant to this authority, agents searched the iPhone and—thanks to intervening developments in digital forensics tools—the iPad. First of all: wow. Seized 52 devices. Id love to see a list of these devices because I dont think I even own enough items with screens and/or internet connectivity in any condition to fill up an inventory list with 22 slots, much less the 52 taken here. Second, theres this twist: the government held onto all of these for more than a year and had to bring the suspects iPhone back to life to search it. The most logical assumption would be that a non-working device would be of limited evidentiary value. But the DHS (whose Homeland Security Investigations unit took point in this case) apparently felt otherwise. Whats almost hidden here is that reviving the phone led to the government being able to crack it, despite the presence of a passcode. And, in case youre still wondering about the value of walled gardens, cracking the iPhone immediately led to cracking the iPad, which suggests if the government has one Apple device owned by a suspect it can get into, it can probably get into the rest of their Apple devices. There are more details further on in the courts discussion. HSI took control of 52 devices in May 2022. Investigators couldnt break into the devices so they applied for an extension two months later, which gave them another six months to accomplish this. HSI still couldnt crack the devices so another six-month extension was sought. And granted, bringing this 14 months of no movement forward on the searches originally approved back in May 2022. And that raises another question that isnt answered here: do temporal limitations on warrants even matter anymore? I mean, if the government can just ask for (and obtain) six month extensions at will, why even bother placing time limits on the original warrants? At best, this only means government agents who are too stupid to seek a rubber stamp before expiration might see their evidence suppressed. At worst, it means the government is free to fold, spindle, and manipulate seized devices in perpetuity, because few judges are willing to tell the government that if they dont have the stuff theyre looking for by now, theyre probably never going to get it. Now, the narrative says the iPhone was inoperable (to use HSIs own words). But the DHS sent it out to a partner forensic laboratory (Im going to assume this was the FBI), which was able to finally obtain access to the phone by: replacing its circuit board and re-flashing the device’s firmware. Now, that looks like the sort of thing not covered or considered by previous case law or the original warrant request. This is something else. This is another government party extensively modifying seized property to make it more receptive to phone-cracking efforts. One would think a court would need to be apprised of this opportunity before it became a reality, if for no other reason than the original warrant only authorized a search, not the literal cracking of a cell phone (or its casing, at least) to replace a circuit board and install new firmware. I think the defendant raises a good point. But I also think, given the lack of precedent, the court is not completely wrong to rule that reviving a device so it can be searched isnt actually a search under the Fourth Amendment. To put it in other physical terms, no court would believe pulling a car out of the water after dredging a lake would be a search, even if the recovered vehicle was searched pursuant to a search warrant. But maybe thats not the best analogy. What if the onboard electronics were damaged and investigators had a warrant authorizing the recovery of GPS data and anything else recorded by onboard systems? Would it be ok to take the car to the shop to have the electronics re-flashed and the touchscreen replaced to provide easier access to stored info? If we look at it that way, Im not so sure this should happen without a visit to the court to either extend the confines of the existing warrant or to submit a new one that addresses what efforts the government will be engaging in to recover this information. As it stands now, firing up a phone defibrillator (so to speak) isnt a search and therefore isnt a Fourth Amendment violation. But that ruling wont last. Investigators will, at some point, perform a resurrection a court cant cope with. Its one thing to seize, hold indefinitely, and hope for the best. Its quite another thing to perform a series of physical and digital acts on a device all without informing the court of your intentions and pretend the circumstances are the same as they were more than a year earlier. If courts are going to ignore time limits just because cops havent gotten what they wanted in the first 6-18 months theyve been in control of a device, the least they can do is start questioning the methods they use after the usual stuff has failed to give them what they want.

[Category: apple, 4th amendment, forensic search, oregon, phone search, warrants]

— Elon Musk Should Be Shouting About The Florida And Texas Social Media Laws (But Are You Surprised That He’s Not?)

 

at 12/4/24 10:27am

In May 2022 Thierry Breton, at the time a prominent European Commissioner, went to Texas and dropped in on Elon Musk, who was then on his way to buying Twitter. During his visit, Breton did something remarkable: he showed that Elon, whatever his other accomplishments, is a sucker’s sucker. In a video posted on social media, Breton got Musk to say that the European Union’s forthcoming Digital Services Act was “exactly aligned” with his “thinking.” Once he took the helm at Twitter, Musk’s chaotic style of management was obviously going to clash with the EU’s meddlesome style of governance. And so it proved. After the DSA took effect, the social media platform now known as X was the first company charged with violating it. The European Commission is currently weighing whether to impose what amounts to personal liability on Musk. The fines could total six percent of the annual revenue of Musk’s closely held firms (SpaceX, Neuralink, xAI, and the Boring Company). In a separate spat over the law’s enforcement, Musk told Breton to “fuck your own face.” All of this is to say that, when it comes to understanding and navigating social media regulations, Elon Musk needs all the help he can get. If Elon cared to listen, I’d tell him this: He should start talking, loudly and often, about the threat that Florida’s and Texas’s social media laws, SB 7072 and HB 20, pose to X. Florida’s SB 7072 Texas’s HB 20 were enacted in 2021, and they’ve already been the subject of extensive litigation. They’ve already been to the Supreme Court, in fact, where, last summer, the justices addressed lawsuits challenging the two laws in Moody v. NetChoice. That decision does some very good things. It confirms that the First Amendment protects curated collections of third-party speech. It finds that social media newsfeeds are exactly that sort of protected expressive compilation. And it concludes that “a state may not interfere” with such feeds “to advance its own vision of ideological balance.” But Moody is not the final word. The justices were reviewing a pair of interlocutory appeals; they were explaining only what was “likely” to happen, in the two cases, on the merits. What’s more, the decision addresses only what social media platforms do “on their main feeds.” Texas and Florida are “not likely to succeed in enforcing” their laws, the Court declared, “against the platforms’ application of their content-moderation policies to the feeds that were the focus of the proceedings below” (emphasis mine). The Court offered no opinion on whether SB 7072 and HB 20 are constitutional as applied to user profiles, direct messaging, group chats, or event functions. Instead, it sent the cases back to their respective trial courts for further fact-finding through discovery. In a nutshell, SB 7072 and HB 20 require large social media platforms (1) to carry and promote content against their will and (2) to fulfill onerous transparency requirements. Even if the conclusion that they do not govern content moderation on newsfeeds holds (no sure bet—a point to which I shall return), these two laws could cause huge headaches for Musk and X. Musk styles himself a “free-speech absolutist,” and this might make it seem as though he has little to fear from SB 7072 and HB 20, which seek to expand the amount of content platforms must carry. But Musk treats X less as a free-speech platform than as a personal plaything. When journalists annoy him—as by interviewing the owner of an account that tracked his private jet—Musk has them banned. When material surfaces that embarrasses his friends—as when a reporter posted pictures of Sen. Ted Cruz’s notes for meetings with donors—Musk has it suppressed. Recently, Musk warned that the “Hammer of Justice is coming” for “those who pushed foreign interference hoaxes.” Maybe he did not mean that such “Justice” will be served on X, but that was the fair implication (X is where he posted the comment, after all). It is easy to picture him embarking on a witch hunt, banning the accounts of users he believes, rightly or wrongly, to have “pushed” such “hoaxes.” HB 20 bars a platform from “censoring” a user based on “viewpoint.” It defines “censor” as “to block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against.” It does not elaborate on what constitutes a “viewpoint.” SB 7072, meanwhile, requires platforms to “apply censorship, deplatforming, and shadow banning standards in a consistent manner.” It does not elaborate on what “consistent” content moderation looks like. SB 7072 also bars a platform from “tak[ing] any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast.” “Journalistic enterprise” is defined broadly to encompass any popular website. A similar but weaker provision protects content “by or about” political candidates. Neither law can stop a platform from removing unlawful content, and each acknowledges that it cannot impose liability for acts of content moderation protected by Section 230. Because Section 230 protects platforms from liability for most content moderation of lawful content, Section 230 should essentially nullify SB 7072’s and HB 20’s (anti-)content moderation rules. But for rightwing critics of so-called Big Tech censorship, gutting Section 230 is part of the plan. Without strong Section 230 protection, SB 7072 and HB 20 would stretch to cover almost every otherwise lawful content moderation decision platforms make. Even with Moody in place, in other words, a platform would expose itself to potential liability nearly every time it blocked a post or banned a user (acts Moody, with its focus on newsfeeds, did not address) due to hate speech, disinformation, or other lawful but awful content. Any user whose post or profile was taken down could make a colorable claim to have promoted some “viewpoint” that stands opposed to some other “viewpoint” a platform leaves up. (A user punished for publishing Ted Cruz’s donor notes could claim that the “viewpoint” being discriminated against is a commitment to putting the powerful under a microscope, a belief that money should be removed from politics, a conviction that the GOP is a rotten political party, or a recognition that Ted Cruz is a ridiculous person.) Similarly, any user could concoct a story about why taking her posts or profile down is “inconsistent” with leaving some other user’s posts or profile up. (Platforms make billions of content moderation decisions, many of which are subjective and value-laden. Of course these decisions are not fully “consistent,” even apart from the fact that theoretical “consistency” is impossible to define.) Meanwhile, many accounts would qualify as “journalistic enterprises,” and much content as “by or about” a political candidate, making a host of profiles and posts privileged or virtually untouchable. Although state actors can enforce SB 7072 and HB 20, let’s indulge for the moment the modest assumption that Florida and Texas will enforce their laws in bad faith, persecuting their perceived Big Tech enemies while leaving X untouched. This wouldn’t get Musk out of the woods. Both laws provide aggrieved users avenues by which to sue. SB 7072 creates a private right of action for violations of the consistency provision. HB 20 creates a private right of action for violations of its content moderation rules “with respect to the user” bringing the suit. This broad framing appears to enable a user in Texas to sue a platform for removing any post the user wants to see. Even without touching newsfeeds, in short, SB 7072’s and HB 20’s content moderation rules could subject X to swarms of nuisance suits, not to mention drastically curtail Musk’s cherished ability to operate X however he wants. The transparency provisions of the two statutes differ in their particulars, but their general thrust is the same. Both laws require platforms (1) to set forth in detail the rules and methods by which they moderate content, (2) to adhere to those rules and methods (i.e., what they disclose must be accurate), and (3) to explain in detail decisions to remove—and, for SB 7072, downrank or label—a piece of content. The Supreme Court did not opine in Moody on whether these requirements can constitutionally be applied to newsfeeds. Making a platform explain in detail its millions of daily content moderation decisions would, the U.S. Court of Appeals for the Eleventh Circuit dryly noted in its opinion on SB 7072, entail “potentially significant implementation costs.” It would also expose platforms “to massive liability.” SB 7072 “provides for up to $100,000 in statutory damages per claim and pegs liability to vague terms like ‘thorough’ and ‘precise.’” A “platform could,” the Eleventh Circuit understood, “be slapped with millions, or even billions, of dollars in statutory damages” for failing, in the eyes of a Florida court, to “provide sufficiently ‘thorough’ explanations” when removing, downranking, or labeling posts. While Musk might not flinch at the expense of supplying countless detailed explanations for content moderation decisions, he would surely hate having to adhere to X’s terms of service. As the tech writer Alex Hern points out, Musk has tended to treat his platform’s “written rules” as “a polite fiction”—a “fig leaf” over his “capricious whims.” Consider the private jet episode—a good illustration of what, with SB 7072 or HB 20 in place, Musk would not be allowed to do. Musk pledged not to ban the “ElonJet” account that tracked his private flights. Later, though, he did just that, even though the account was not in violation of then-still-Twitter’s written rules. Twitter then changed the rules to ban posts that disclose a person’s “live location” or that contain images or videos of a person without her consent. This new rule was so broad that Musk promptly broke it himself, by posting a picture of a person (a stalker, according to Musk) sitting on his car. Now imagine that SB 7072 or HB 20 had been in place. The banning of the ElonJet account revealed that the Twitter rules, as they existed before the ban, were incomplete. And there was no way the platform was ever going to engage in more than haphazard enforcement of the location-sharing and depiction-without-consent bans. SB 7072 and HB 20 don’t appear to allow private enforcement of their “follow your own rules” provisions; but if you’re Musk, do you really want the governments of Florida and Texas to have, sitting in their back pockets, a handy tool for making you operate your platform how they want? You never know when you might have a falling out with a cynical and capricious character like Texas attorney general Ken Paxton. To avoid the possibility of large fines, injunctions, and contempt proceedings, Musk would have to obey X’s written rules, and X’s written rules would have to become far more detailed. X would have to undertake what Musk would undoubtedly view as a heinous routinization and bureaucratization of its content moderation process. The Supreme Court’s protection of content moderation on newsfeeds is likely to hold, but it is by no means guaranteed to hold. Recall that the Court was applying only the “likelihood of success” standard that governs motions for preliminary injunction. The Court further opened the door to a change of result, following discovery, by acknowledging that “the record is incomplete” even as to “the major social-media platforms’ main feeds.” Adding to the uncertainty, Justice Alito, writing for himself and Justices Thomas and Gorsuch, issued a concurrence laden with suggestions for how the lower courts might evade the majority’s ruling. And if SB 7072 and HB 20 were to sink their teeth into newsfeeds after all, that would be a disaster for Musk. Forced under SB 7072 to act in a “consistent” manner, and forced under HB 20 never to deny “equal access or visibility to,” or “otherwise discriminate against,” content, Musk would have to fundamentally change how he runs X. He could no longer weight X’s algorithm in favor of his political interests (thereby discriminating against Democrats) or himself (thereby discriminating against literally everyone else). His beloved community notes would draw lawsuits, with plaintiffs claiming the notes aren’t consistent or viewpoint neutral. Under SB 7072, X would additionally have to let users opt out of the platform’s recommendation algorithm altogether, leaving Musk unable to continue force-feeding users the posts he wants them to see. Even if, despite everything, Musk isn’t worried about SB 7072 or HB 20, he still has good reason to oppose them. For if SB 7072 and HB 20 are valid under the First Amendment, other intrusive regulations of social media will be too. New statutes will be sure to pop up. Blue states will enact laws that force X to engage in more content moderation. Some commentators cite Musk as the reason such laws are needed. “There is a liberal/progressive case to be made” for “regulating content moderation,” argues professor Michael Dorf, that stands in part on the fact that “Musk ha[s] bought Twitter, rebranded it X, and turned it into [a] cesspool of misinformation, hate, and stupidity.” If Musk wants to avoid leftwing regulation of his platform, he’d be wise to oppose rightwing regulation of his platform as well. Suffice it to say that this is not what Musk to this point has done. What he has done instead is resist or accede to state action based on whether he likes the politics of the government in question. X complied with the Indian government’s demand that it take down a documentary critical of rightwing prime minister Narendra Modi; but it defied (at least for a time) a Brazilian Supreme Court justice’s demand that it ban accounts accused of spreading misinformation in support of rightwing former president Jair Bolsonaro. X has sued to block social media regulations enacted by blue California, yet Musk is not voicing opposition to the social media regulations enacted by red Florida and Texas. (X is technically involved in opposing SB 7072 and HB 20 through its membership in NetChoice, one of the trade groups challenging the laws. But my point all along has been that Musk should be tapping his personal clout here.) As I said at the outset, Musk initially supported the DSA out of ignorance. Maybe ignorance is all that’s keeping him from speaking out against SB 7072 and HB 20. If so, here’s hoping he becomes better informed. But it’s at least as likely that he knows about the Florida and Texas laws, and that he knows they’re dangerous, but that, because his first priority is to play political favorites, he doesn’t care—certainly not enough to do anything. Elon Musk is a lot of things; principled is not one of them. Corbin K. Barthold is Internet Policy Counsel at TechFreedom.

[Category: twitter, x, content moderation, elon musk, florida, hb 20, moody v. netchoice, sb 7072, social media laws, texas]

— Senator Ernst Wants To Kill Billions In Broadband Infrastructure Grants For No Coherent Reason

 

at 12/4/24 6:23am

The 2021 infrastructure bill is poised to deliver $42.5 billion in broadband subsidies to the states under a program called Broadband Equity, Access, And Deployment (BEAD). This program has been slow sledding, because Americas broadband maps were absolute garbage, requiring that states work overtime to fix our broadband maps and ensure the money is spent semi-wisely. Republicans and their friends in the telecom industry opposed fixing our broadband maps, contributing to this delay (like their friends at AT&T and Comcast, they like data that pretends U.S. broadband is competitive, because it props up their false claims that coddling monopoly power is a good thing). Now key Republicans (like Trumps new FCC Boss Brendan Carr), are pointing to the delay they helped cause as evidence that the entire program is a boondoggle and should be scrapped. The money, managed by individual states, is actually very close to hitting state coffers next year. But Senators like Iowa Senator Joni Ernst are calling for BEAD to be shut down because nobody has gotten broadband yet: President Biden’s so-called infrastructure program provided $7.5 billion to build a nationwide network of electric vehicle (EV) charging stations and $42 billion to expand broadband. Three years later, just 17 EV stations are completed and not a single person – not one – has been connected to the internet yet. It’s time to pull the plug. This may sound crazy, but the U.S. government is big and it takes time to accomplish big things. The delay in BEAD is twofold: the government wanted to fix its mapping so it didnt waste money. This is a good thing. The government also wanted to make sure that ISPs that win bids can actually deliver the broadband speeds they promised. This is also a good thing. The Trump administration failed to do this on an earlier rural taxpayer-funded broadband program and it created created a giant fucking mess. Again, the delays here are because the government was actually trying to do this correctly. And theyre going to get punished by people pretending to care about government efficiency. Ernsts home state of Iowa is poised to receive $415.3 million in BEAD grants in the new year. That money will be used to fund things like more reliable fiber connections to schools, libraries, and rural communities long left out of the reach of traditional broadband (thanks, again, to Republican policies that tend to coddle telecom monopolies, penalize the poor, and defang corporate oversight). It would be one thing if Republicans were genuinely arguing in good faith about saving taxpayers money. But then theyll turn right around and give Elon Musk a billion dollars to bring satellite broadband to some traffic medians, or give AT&T a $42 billion tax break in exchange for a giant middle finger and 41,000 layoffs. They endlessly talk out of both sides of their mouths on policy. Republicans voted against these infrastructure improvements. At the same time, Republicans have lied repeatedly to their constituents and tried to take credit for them. Guys like Elon Musk hate subsidies, unless theyre the ones getting subsidized. Republicans profess to hate government inefficiency, then turn around and waste millions of dollars trying to nanny state your porn consumption. Elon Musk and Vivek Ramaswamys Department of Government Efficiency will provide limitless cover for corruption and graft here. So I suspect most of this BEAD money will still reach most states, there will just be endless efforts to shift funds away from projects that build out affordable fiber competition, and toward whatever entity or individual does the best job kissing Trumps ass. Since states are in charge of the funds how much money gets wasted and redirected will depend on how corrupt your state is, only reinforcing existing state by state disparities on affordable broadband access.

[Category: 1, BEAD, broadband, broadband equity access and deployment, fcc, infrastructure bill, joni ernst, ntia, subsidies, telecom]

As of 12/7/24 2:37pm. Last new 12/7/24 2:37pm.