CBP Tells Senator Ron Wyden It Will Stop Buying Location Data From Third Parties

Privacy

from the definitely-the-most-trustworthy-of-pinkie-swears dept

In 2018, the Supreme Court handed down the Carpenter decision. That decision built on the one declaring phones off limits without a warrant — one delivered four years earlier. The rationale was this: phones are always on, all-knowing, and everywhere all the time.

Given the amount of data generated by everyday smartphone use, the Supreme Court (in these two decisions) decided to expand Fourth Amendment coverage not only to phones, but to the location data they generated continuously in order to provide service to phone owners.

The Carpenter decision said obtaining long-term location data from cell service providers now required a warrant. These records were no longer mere “third party” records. Instead, they were records capable of allowing the government to track a person’s whereabouts (and infer things about those locations). As such, probable cause was needed to obtain these records — ones now removed from the blanket coverage of the Third Party Doctrine.

Faced with this new reality, the government began searching for warrantless alternatives. Brokers hoovering data from unaware phone users (via installed apps that may or may not have warned them location data would be gathered) became the new source for third party records. In fact, this collection of data was one third party removed from the original third party: the app collecting the data.

Given this distance, the government assumed it was constitutional to do the same thing the Carpenter decision prohibited, since it wasn’t gathering location data directly from cell service providers. And by “government,” I mean pretty much all of it. The feds got on top of it, spending tax dollars to provide the DEA, ICE, CBP, Defense Department, and many other federal agencies with location data harvested from phone app users.

Once this new collection became public knowledge, other components of the federal government — namely, certain legislators actually interested in protecting Americans’ rights — got involved. Senator Ron Wyden led the charge to end this warrantless collection of location data determined by the highest court in the land to be protected by the Fourth Amendment (albeit within narrow confines).

Congressional investigations were opened into this new breed of data merchants. That did little to deter federal agencies from purchasing data from brokers currently under investigation. Legislators applied more pressure. But these actions had little result… at least, up until now.

As Joseph Cox reports for the recently-formed 404 Media, the CBP has, at least for the time being, assured Senator Wyden it will no longer purchase location data from opportunistic brokers.

Customs and Border Protection (CBP) has told Sen. Ron Wyden that it plans to stop using commercially sourced smartphone location data at the end of this month, Wyden’s office told 404 Media.

This is good news. But there are caveats, the first of which is the timing. Apparently, the CBP is willing to collect it all until the end of this month, which seems a bit opportunistic for someone promising to kick the data broker habit cold turkey.

Then there’s this, which suggests the CBP has found another source for this data — one that has not, as of yet, been made public.

CBP told 404 Media it determined the agency does not have a current need to buy more access to such data. 

No “current need” to “buy more access.” Hmm. I wonder what that means in plain English. It could be that it’s found another source for this data. Or it could mean it’s currently in possession of so much data, it doesn’t feel the need to add more to its current collection. Or it could mean the data harvested by data brokers is less useful than alternatives that may actually require warrants.

The latter might be the most likely explanation, at least according to statements obtained by Cox and 404 Media. Sure, it’s easy to gather location data in bulk from brokers, but the data collected from (likely intermittent) app use is going to be incomplete. And, in cases, where suspects are already difficult to identify, the data may only serve to obscure the intended target, rather than help law enforcement hone in on its prey.

Agencies have not necessarily been successful at tracking individual targets with such data. Senator Wyden’s office previously found that the criminal investigation unit of the IRS tried and failed to track criminal suspects in a year-long Venntel contract.

Of course, the government isn’t adverse to throwing good money at bad intel. That’s how so many government contractors remain lucrative. But when results matter, paying for access to inconsistent data may frustrate federal agents enough they’re willing to give up heavily criticized collection methods and actually act a bit more constitutional when performing investigations.

Whatever the case, it’s probably best federal agencies begin weaning themselves off this particular data teat. A lot of federal agencies are already considered flagrant rights violators. And not just because they routinely violate rights. A Republican cabal with considerable power is seeking to punish the so-called “deep state” by limiting surveillance powers. While the CBP and its foreigner-ousting directives may align with these Republicans’ interests, the overall distrust of federal surveillance efforts might see warrantless collections like these curbed in the future.

And that means Senator Wyden may have unlikely allies willing to push through his legislation that would mandate warrants for collecting location data from sources not specifically covered by the Carpenter decision. Sometimes the best bedfellows Americans can have are the strange ones.

Filed Under: cbp, data, data brokers, dhs, privacy, ron wyden

Netflix Settles Dispute With South Korean ISP That Demanded Extra Money Just Because ‘Squid Game’ Was Popular

Broadband

from the please-pay-me-extra-for-absolutely-no-reason dept

A few years ago we noted how a South Korean ISP named SK Broadband had sued Netflix, demanding that the streaming giant pay it more money simply because the hit series Squid Game was so popular. It was one small part of a global push by broadband providers to force streaming companies to pay them extra money for no coherent reason.

After several years of fighting, Netflix and SK Broadband have quietly settled their dispute, with Netflix promising to utilize some ambiguous SK AI products in exchange for both sides dropping their lawsuits:

“SK Broadband and parent SK Telecom announced in a joint statement with Netflix that they had agreed on a partnership to release joint products and seek ways to use artificial intelligence (AI) products being developed by SK.”

While the two sides have settled, these sort of feuds are only really heating up.

Big ISPs from AT&T to SK Broadband have tried to argue that because streaming services are driving more network usage, streaming providers somehow owe broadband ISPs even more money. But it’s a ridiculous premise; both Netflix and its customers already pay significant sums for bandwidth (especially here in the U.S. where monopolies abound, competition is muted, and prices are artificially inflated).

ISPs design their networks for maximum potential peak load. It’s completely irrelevant how popular some content traveling over your network is. Your job as a telecom operator is to design networks that easily flex to handle a surge in capacity, regardless of traffic type, because you’re already being paid handsomely by companies and consumers alike (and usually subsidized by government in some fashion).

If you’re an ISP whose network can’t handle the short-lived network traffic boost that comes from a popular TV program, it’s because you’re not designing your network and investing in capacity properly. It’s not suddenly the content company’s job to pay you more money to fix a problem you created through cutting corners or under-investment. Especially in the heavily subsidized U.S.

The problem: regulators and politicians in countries like South Korea have spent too much time listening to greedy ISPs, and constructed a regulatory paradigm that normalizes the quest by broadband providers to get more money for doing absolutely nothing. A similar lobbying effort by telecoms has seen some traction in Europe, and has also long been a dream of telecom lobbyists here in the U.S.

If the telecom industry’s EU gambit succeeds (they’ve proposed forcing companies like Netflix to pay a troll toll directly to big telecoms), it’s going to reheat the net neutrality war here in the States in a major way.

Such efforts have always been little more than monopolies abusing their power to bully and extort others; but monopolies have had good luck convincing corrupt regulators to pretend this is all very serious, above board policymaking altruistically aimed at shoring up broadband access. It almost always involves some claim that companies like Netflix get a “free ride” on the internet (they don’t because nobody does).

It’s all greedy bullshit dressed up as serious policy. The details shift slightly over the years, but the quest is always the same: fool regulators into letting telecoms offload ordinary network upgrade costs onto somebody else. It was greedy bullshit when AT&T demanded that Google pay it huge sums of additional money in 2005 for “riding its pipes,” and it’s still bullshit now.

Filed Under: broadband, high speed internet, korea, net neutrality, squid games, streaming, telecom
Companies: netflix, sk broadband

Leaker Of Those FTC Microsoft Documents Revealed: It Was Microsoft Doing An Oopsie

Say That Again

from the whoops dept

As many of you are probably already aware, a massive leak of internal documents at Microsoft occurred this week, all of which came out of the FTC’s challenge to Microsoft’s purchase of Activision Blizzard. We discussed a small portion of that leak a few days ago when we talked about Microsoft’s decision to take the next Elder Scrolls game exclusive to Microsoft platforms. But there was a great deal more that was leaked in the trove of documents that were included, both from internal company documents and emails. The reveals from those documents include:

• A potential new Xbox controller
• Microsoft apparently not thinking Baldur’s Gate 3 was any good, calling it a “Second-run Stadia PC RPG”
• Xbox chief Phil Spencer blaming management and workers for studio closures
• Plans for the next Xbox slated for 2028
• Phil Spencer’s apparent desire and plans to buy Nintendo
• Information about forthcoming new games
• A disc-less version of the current Xbox

Spencer himself addressed the leaks, both externally and internally to staff, which of course also leaked out.

Spencer hints that Microsoft’s plans may have changed, particularly as some documents were from last year, but others were from years prior. “I know this is disappointing, even if many of the documents are well over a year old and our plans have evolved,” says Spencer in his internal memo.

In a similar briefer statement shared on X (formerly Twitter), Spencer says: “We’ve seen the conversation around old emails and documents. It is hard to see our team’s work shared in this way because so much has changed and there’s so much to be excited about right now, and in the future. We will share the real plans when we are ready.”

Left out of all that was a very clear statement as to who the known “leaker” was: Microsoft. And that’s really point one I want to address in Spencer’s statement. The passive language being used here doesn’t make it clear that Microsoft is the one that FUBAR’d this. But that is indeed what happened. It wasn’t someone at the FTC. It wasn’t someone in the court. It was Microsoft doing an oopsie.

“The FTC was not responsible for uploading Microsoft’s plans for its games and consoles to the court website,” tweeted Douglas Farrar, director of its Office of Public Affairs. He later shared a new court order released by the judge in the case, Jacqueline Scott Corley. It called for both the FTC and Microsoft to meet again to go over the issues with exhibits, and placed the blame squarely on the latter for the latest leak.

“The Court ordered the parties to meet and confer and provide the Court with a secure cloud link to the admitted exhibits with the redactions set forth in the Court’s orders,” she wrote. “Microsoft provided the link on September 14 and the Court uploaded the exhibits to [the] internet page established for this case.”

There you have it. But there’s another thing I’d like to point out when it comes to Spencer’s statements, specifically where he laments how the public is going through these documents and reaching what he is calling the wrong conclusions, either because they’re misinterpreting the content of the leaked documents, or because those documents are outdated.

Well, the problem with that lament is that Phil Spencer has routinely said one thing publicly and then gone ahead and done another. He told us Xbox exclusives weren’t the future, but that’s all there seems to be these days at Microsoft. Microsoft acquisitions weren’t supposed to result in fewer people being able to play games from those series in fewer places, except that’s exactly what happened.

And yet here we are, with Spencer himself complaining that the public is reaching the wrong conclusions having read internal documents and emails, some of which were from Spencer himself. But where else is the public supposed to go to get real insight and information as to what Microsoft is going to do?

Certainly not Spencer himself, which is my point. If he wanted to be able to tell the public, “Hold up, that information is old and wrong, wait until I tell you what the plans are.”, well, then he shouldn’t have been so misleading all this time.

Filed Under: ftc, leak, phil spencer, xbox
Companies: activision blizzard, microsoft

Countries Eye Weight Tax To Counter Public Safety Threat Of Extremely Heavy, Large EVs

(Mis)Uses of Technology

from the once-again-doing-absolutely-nothing-to-prepare-for-this-obvious-problem dept

The United States is already a global leader in traffic-related fatalities, with a thirty-percent jump in the last decade. That’s in contrast to every other developed country, which saw a decline.

So of course it’s a perfect time to flood American highways with a parade of extremely heavy EVs with unprecedented acceleration. Some of which are extremely pointy and feature half-cooked automation technology with a growing body count.

The electric Ford Lightning, for example, is a whopping 6,500 pounds. The Hummer EV is even heavier, clocking in at 9,000 pounds. Its battery alone weighs more than a Honda Civic. Experts have pointed out the significant safety ramifications of this transition for a while, but it’s still not clear that we’ve prepared the regulatory and policy landscape for such a transition.

Even if you don’t want a giant, extremely heavy EV, the tendency to purchase such vehicles creates an arm race for everyone interested in protecting their family on the road. That in turn causes a shift away from smaller EVs in a bid to feed the elemental materials needed for ever larger EV batteries.

That very quickly starts to deflate many of the benefits of EVs as a safer, more environmentally friendly alternatives. Hoping to counter that shift, some countries have increasingly been pushing for a weight tax on EV vehicles:

“Norway, a pioneer in EV use, is considering a weight-based tax to steer buyers away from the fattest EVs (the Norwegian government recently eliminated EV purchase incentives). France already has one on SUVs. Buyers of new diesel and gasoline vehicles must pay a tax of €10 ($14.58) a kilo (2.2 pounds) above 1.8 tons. The weight threshold is to be reduced. EVs are exempt, but as those vehicles become heavier and more popular, it seems they will get swept into the weight-based tax net.”

A smattering of localities have tried to prepare for the threat. DC, for example, has imposed a creative vehicle registration fee schedule that has heavy EV truck and SUV owners paying higher registration fees than lighter EV sedans. But it’s an outlier.

Federally we’re doing… nothing to try and counterbalance the potential safety threat. There are occasionally calls to impose a weight tax on EVs, but they’ve gone nowhere out of fears they’ll stifle industry growth, innovation, or our love for accountability-optional freedom. Instead we’ve just generally offered a catch all $7,500 federal tax credit for all EV purchases, provided they’re less than 14,000 pounds.

Much like Tesla’s half-baked and severely misrepresented self-driving technologies, it seems pretty clear we’re going to let the corpses pile up first, then maybe figure out policy solutions down the road a decade after the fact. Surely that will work out great for everybody involved. Especially cyclists and pedestrians already traversing overtly hostile transit design on the daily.

Filed Under: cars, ev, safety, traffic fatalities, trucks, weight tax

It Feels Like The Only Reason ExTwitter Still Has A Trust And Safety Team Is So Elon Can Lay Them Off

Content Moderation

from the yeah,-sure,-that'll-bring-back-the-advertisers dept

Almost everyone I’ve seen talking about this new Insider article about how Elon had a special layoff just of trust and safety employees has shared it with the line “wait, there are still trust & safety employees?”

Elon Musk recently laid off more Twitter employees working on the platform’s trust and safety efforts, roles typically crucial to keeping a social media platform safe for advertisers.

The cuts happened the first week of September, according to two people familiar with the company, one of the first targeted layoffs since he shrunk operations earlier this year. While this layoff only affected a handful of people, five to 10, it was focused entirely on workers in trust and safety.

The article goes on to note that the trust and safety team, which no longer appears to have someone officially running the team (since Ella Irwin quit), has now gone from what had been about 230 people to somewhere around 20:

Now, the team is a fraction of its original size, according to the people familiar. One of the people said there are currently about 20 full-time employees on the trust and safety team, some of whom were contract workers who were promoted over the summer to full-time roles at the company, not long after Linda Yaccarino joined as Twitter’s CEO. The employees mainly engage in content moderation, the person familiar added, while a few members of the team work in legal or policy.

The article further notes that there used to be trust and safety roles working across the entire company, in product, legal, and policy, to ensure that the company didn’t view trust and safety as an afterthought, but rather was a core element of the business.

Now, it is most clearly an afterthought.

It’s unclear what prompted the latest layoff. Since the early layoffs late last year and early this year, Elon insisted that the layoffs were over. Linda Yaccarino has claimed that the company was hiring (though apparently she just meant a bunch of TV execs with no internet experience).

Meanwhile, all this is happening at a time when Musk is claiming that it’s the Anti-Defamation League that is causing advertisers to leave the site, not the fact that the site is a mess and it’s literally damaging the brands that continue to advertise there.

Of course, it’s not difficult to see how this is playing out. Elon has long made it clear that he thinks everything can be handled by AI, so that trust and safety becomes an engineering role now, where the only people working on any of this are simply trying to improve the AI. But all of the evidence so far suggests it’s not working very well, like pretty much all of Elon’s hunches about how to run a social media site.

Filed Under: brand safety, content moderation, elon musk, trust and safety
Companies: twitter, x

EU-Funded ‘Automated Deception Detection’ Border Security Project Concludes, But Public Aren’t Allowed To See Research Details

(Mis)Uses of Technology

from the pay-up-and-shut-up dept

Note: Since the publication of this article, the iBorderCtrl website has disappeared. We have updated the links in the post to point to an archived version of the site.

Four years ago, Techdirt wrote about iBorderCtrl, a research project funded by the EU under the Horizon 2020 framework. According to the project’s Web site:

iBorderCtrl provides a unified solution with aim to speed up the border crossing at the EU external borders and at the same time enhance the security and confidence regarding border control checks by bringing together many state of the art technologies (hardware and software) ranging from biometric verification, automated deception detection, document authentication and risk assessment.

“Automated deception detection” is jut a fancy name for lie detection, but with the twist that it uses AI to analyze “non-verbal micro-gestures”. As the earlier Techdirt article pointed out, there’s no hard evidence this approach works. Even the project’s FAQ admits there are issues:

With regard to iBorderCtrl, it can be concluded that the automatic deception detection system (ADDS), which relies on AI, poses various risks with regard to fundamental rights. As the iBorderCtrl cannot provide 100% accuracy, there is always a risk of false positives (people being falsely identified as deceptive) and false negatives (criminals being falsely identified as truthful). This is true of any decision-making system, including those where classifications are made by humans. This might also lead to a stigmatisation or prejudice against affected persons, for instance when talking to a real border guard afterwards.

The FAQ also makes clear that the two main tests of the system, at borders in Hungary and Latvia, have concluded, and that there are no plans to roll it out anywhere in the EU, not least because there are unresolved legal and ethical issues of its approach:

How far the system, or parts of it, will be used at the border in the future will need to be defined. It should be also noted that some technologies are not covered by the existing legal framework, meaning that they could not be implemented without a democratic political decision establishing a legal basis. At the time of doing so, appropriate safeguards would also need to be considered, e.g. as proposed by the iBorderCtrl Consortium, to ensure the system operates with full respect for protect human rights.

The iBorderCtrl project received €4.5 million from the EU, so it would not be unreasonable for EU citizens to be able to see what their money was used for. In 2018, Patrick Breyer, a member of the European Parliament, requested access to documents held by the European Commission regarding the development of iBorderCtrl. As Article 19 recounts:

The REA [EU Research Executive Agency] – the agency at the helm of the iBorderCtrl project – granted Breyer full access to one document and partial access to another. They denied him access to numerous additional documents, citing the protection of the commercial interests of a consortium of companies collaborating with the REA on the project.

Breyer challenged this decision, pointing out that there was a strong public interest in having access to information about projects that used controversial technology, as iBorderCtrl certainly did. The EU’s so-called “General Court” published a ruling in December 2021:

the General Court established that a number of access requests denied to Breyer were not sufficiently justified by the REA. While the Court’s recognition of public interest in the democratic oversight of the development of surveillance and control technologies is a step in the right direction, the decision did not go far enough and Breyer appealed. In its decision, the Court suggested that such democratic oversight should begin only after these types of research and pilot projects were concluded. In other words, the Court failed to acknowledge the importance of ensuring transparency is in place at the outset of taxpayer-funded projects with immense impact on citizens, rather than when research and development has already been completed.

Breyer took his case to the main EU Court of Justice (CJEU), which has just issued its judgement:

While the CJEU did recognise that the fact that the obligation of participants in the iBorderCtrl project to respect fundamental rights is not grounds to assume that they will automatically do so, it maintained that because this was a research project, the public’s right to know about the results – rather than the process of the research – was sufficient.

The CJEU agreed with the General Court that the commercial interests of the REA outweighed the public interest. But as a listing of the documents requested indicates, several were about the ethics of the project, and others were general progress reports. It seems entirely legitimate for that information to be available to the public: claims of commercial interests should not be able to stymie the crucial oversight of new surveillance and control technologies funded by taxpayers.

More generally, the idea that people can only see the results of publicly-funded research is absurd. Today there is a recognition that science research needs to be open – not just in its results, but in its entire process. The CJEU ruling that the public can only ask to see the results is retrogressive, and a return to the bad old days of science funding when the public was expected to pay up and then shut up.

Follow me @glynmoody on Mastodon.

Filed Under: ai, article 19, borders, cjeu, commercial interests, ethics, eu, horizon 2020, hungary, iborderctrl, latvia, lie detector, patrick breyer

What State Action Doctrine? Biden Administration Renews Push For Deal With TikTok, Where US Government Would Oversee Content Moderation On TikTok

Content Moderation

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

So, for all of the nonsense about what level of coercive power governments have over social media companies, it’s bizarre how little attention has been paid to the fact that TikTok is apparently proposing to give the US government control over its content moderation setup, and the US government is looking at it seriously.

As you likely know, there’s been an ongoing moral panic about TikTok in particular. The exceptionally popular social media app (that became popular long after we were assured that Facebook had such a monopoly on social media no new social media app could possibly gain traction) happens to be owned by a Chinese company, ByteDance, which has resulted in a series of concerns about the privacy risks of using the app. Some of those concerns are absolutely legitimate. But many of them are nonsense.

And, for basically all of the legitimate concerns the proper response would be to pass a comprehensive federal data privacy law. But no one seems to have the appetite for that. You get more headlines and silly people on social media cheering you on by claiming you want to ban TikTok (this is a bipartisan moral panic).

Instead of recognizing all of this and doing the right thing after Trump’s failed attempt at banning TikTok, the Biden administration has… simply kept on trying to ban TikTok or force ByteDance to divest. That’s another repeat of a bad Trump idea, which ended not in the divestiture, but Trump getting his buddy Larry Ellison’s company, Oracle, a hosting deal for TikTok. And, of course, TikTok and Oracle now insist that Oracle is reviewing TikTok’s algorithms and content moderation practices.

But, moral panics are not about facts, but panics. So, the Biden administration did the same damn thing Trump did three years earlier in demanding that TikTok be fully separated from ByteDance, or said the company would get banned in the US. Apparently negotiations fell apart in the spring, hopefully because TikTok folks know full well that the government can’t just ban TikTok.

However, the Washington Post says that they’re back to negotiating (now that the Biden administration is mostly convinced a ban would be unconstitutional), and the focus is on a TikTok proffered plan to… wait for it… outsource content moderation questions to the US government. This plan was first revealed in Forbes by one of the best reporters on this beat: Emily Baker-White (whom TikTok surveilled to try to find out where she got her stories from…). And it’s insane:

The draft agreement, as it was being negotiated at the time, would give government agencies like the DOJ or the DOD the authority to:

• Examine TikTok’s U.S. facilities, records, equipment and servers with minimal or no notice,
• Block changes to the app’s U.S. terms of service, moderation policies and privacy policy,
• Veto the hiring of any executive involved in leading TikTok’s U.S. Data Security org,
• Order TikTok and ByteDance to pay for and subject themselves to various audits, assessments and other reports on the security of TikTok’s U.S. functions, and,
• In some circumstances, require ByteDance to temporarily stop TikTok from functioning in the United States.

The draft agreement would make TikTok’s U.S. operations subject to extensive supervision by an array of independent investigative bodies, including a third-party monitor, a third-party auditor, a cybersecurity auditor and a source code inspector. It would also force TikTok U.S. to exclude ByteDance leaders from certain security-related decision making, and instead rely on an executive security committee that would operate in secrecy from ByteDance. Members of this committee would be responsible first for protecting the national security of the United States, as defined by the Executive Branch, and only then for making the company money.

For all the (mostly misleading) talk of the US government having too much say in content moderation decisions, this move would literally put US government officials effectively in control of content moderation decisions for TikTok. Apparently the thinking is “welp, it’s better than the Chinese government.” But… that doesn’t mean it’s good. Or constitutional.

“If this agreement would give the U.S. government the power to dictate what content TikTok can or cannot carry, or how it makes those decisions, that would raise serious concerns about the government’s ability to censor or distort what people are saying or watching on TikTok,” Patrick Toomey, deputy director of the ACLU’s National Security Project, told Forbes.

The Washington Post has even more details, which don’t make it sound any better:

A subsidiary called TikTok U.S. Data Security, which would handle all of the app’s critical functions in the United States, including user data, engineering, security and content moderation, would be run by the CFIUS-approved board that would report solely to the federal government, not ByteDance.

CFIUS monitoring agencies, including the departments of Justice, Treasury and Defense, would have the right to access TikTok facilities at any time and overrule its policies or contracting decisions. CFIUS would also set the rules for all new company hires, including that they must be U.S. citizens, must consent to additional background checks and could be denied the job at any time.

All of the company’s internal changes to its source code and content-moderation playbook would be reported to the agencies on a routine basis, the proposal states, and the agencies could demand ByteDance “promptly alter” its source code to “ensure compliance” at any time. Source code sets the rules for a computer’s operation.

Honestly, what this reads as is the moral panic over China and TikTok so eating the brains of US officials that rather than saying “hey, we should have privacy laws that block this,” they thought instead “hey, that would be cool if we could just do all the things we accuse China of doing, but where we pull the strings.”

Now, yes, it’s true that an individual or private company can voluntarily choose to give up its constitutionally protected rights, but there is no indication that any of this is even remotely close to voluntary. If the 5th Circuit found that simply explaining what is misinformation about COVID was too coercive for social media companies to make moderation decisions over, then how is “take this deal or we’ll ban your app from the entire country” not similarly coercive?

Furthermore, it’s not just the rights of TikTok to consider here, but the millions of users on the platform, who have not agreed to give up their own 1st Amendment rights.

Indeed, I would think there’s a very, very high probability that if this deal were to be put in place, it would backfire spectacularly, because anyone who was moderated on TikTok and didn’t like it would actually have a totally legitimate 1st Amendment complaint that it was driven by the US government, and that TikTok was a state actor (because it totally would be under those conditions).

In other words, if the administration and TikTok actually consummated such a deal, the actual end result would be that TikTok would effectively no longer be able to do much content moderation at all, because it would only be able to take down content that was not 1st Amendment protected.

So, look, if we’re going to talk about US government influence over content moderation choices, why aren’t we talking much more about this?

Filed Under: 1st amendment, biden administration, cfius, china, content moderation, control, doj
Companies: bytedance, tiktok

Daily Deal: Babbel Language Learning

Deals

from the good-deals-on-cool-stuff dept

Learn Spanish, French, Italian, German, and many more languages with Babbel. Developed by over 100 expert linguists, Babbel is helping millions of people speak and understand a new language quickly, and with confidence. After just one month, you will be able to speak confidently about practical topics, such as transportation, dining, shopping, directions, making friends, and much more. It’s on sale for $169.97.

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.

Filed Under: daily deal

Court: Lawsuit Can Continue Against Library That Moved All LGBTQ Children’s Books To The Adult Section

Free Speech

from the maybe-try-being-less-of-an-asshole? dept

The First Amendment doesn’t just protect what you say. It also protects your right to hear what others say. It guarantees a right to published information. It protects a whole lot of stuff certain politicians sincerely wish it didn’t because it gets in the way of pushing their bigoted ideals.

Right now, there’s a wave of anti-LGBTQ legislation sweeping the country. Legislators — pretending they care about children — are trying to prevent everyone from accessing certain creative expression (or saying certain things) these politicians don’t agree with.

And pretty much every time they engage in this form of censorship, they get smacked down by courts. The Constitution doesn’t care about your hateful feelings. Rights must be respected, even by petty would-be tyrants undeserving of anyone’s respect.

A lawsuit, filed by patrons of a county library in Arkansas, has been allowed to move forward by a federal court. The First Amendment lawsuit plausibly alleges the library’s decision to move anything determined to be “LGBTQ” from the children’s section to the adult’s section violates the First Amendment right to equitable access to information. (via Courthouse News Service)

Here’s how this started, according to the decision [PDF] that moves this lawsuit forward:

[I]n late 2022 or early 2023 the Crawford County Library System implemented a policy under which its library branches must remove from their children’s sections all books containing LGBTQ themes, affix a prominent color label to those books, and place them in a newly-created section called the “social section.” Plaintiffs allege this policy was imposed on the Library System by the Crawford County Quorum Court in response to political pressure from constituents who objected, at least partly on religious grounds, to the presence of these books in the children’s section.

The use of a court to pressure a (government-funded) library into doing something it had never felt a need to do before is already a pretty plausible First Amendment cause of action. If the quorum court hadn’t imposed this policy, there’s a good chance the library would never have bothered stigmatizing certain content.

This sort of thing is not an anomaly in the United States, much less Arkansas in particular.

This is not the only lawsuit currently pending in the Western District of Arkansas that concerns children’s books in public libraries. In Fayetteville Public Library et al. v. Crawford County, Arkansas et al., Case No. 5:23-cv-5086, a host of public libraries, librarians, library patrons, nonprofits, and booksellers sued various state actors, challenging the constitutionality of Arkansas Act 372 of 2023 (“Act 372”). Section 1 of Act 372 defines a new Class A misdemeanor called “furnishing a harmful item to a minor.” Section 5 requires that “[e]ach county or municipal library shall have a written policy for addressing challenged material that is physically present in the library and available to the public,” and imposes certain minimum criteria that libraries must incorporate into those policies.

It’s a movement in Arkansas, propelled by bigoted legislators and assisted by bigoted residents and the occasional county quorum court. No doubt the listed lawsuit will end with in a loss for the government but, for the time being, these litigants want this particular county library to stop violating the First Amendment.

The state argued the plaintiffs had no standing to bring a lawsuit against the library. Wrong, says the court:

The amended complaint alleges that all three Plaintiffs are “members and users of the Crawford County Library System,” and that their minor children “are also users of the Crawford County libraries.” Their pleadings also allege that the County’s library system has segregated children’s books with LGBTQ themes onto separate shelves in the adult section of the library and affixed stigmatizing labels to them signaling controversial content, and that the motivation for this policy was at least in part religious. Since Plaintiffs are members and users of these libraries, one can reasonably infer from the pleadings that they have directly encountered the shelves at issue here. And Plaintiffs obviously find this practice unwelcome, as they have brought this lawsuit with the goal of ending it. That is sufficient to confer standing upon them to bring their Establishment Clause claim, at least at this early stage of the lawsuit.

It also argued no injury had been suffered because the books were merely moved (and marked with the county’s LGBTQ equivalent of the scarlet letter…), rather than removed. Wrong again, says the court.

As for Plaintiffs’ claim that the County’s policy restricts their First Amendment right to receive information: the County argues Plaintiffs have not been injured because their access to the books in question has not been restricted. Children are still allowed to roam the adult section, and there are no formal limitations on who may browse or check out the books at issue here. However, this argument confuses restriction with outright prohibition. When a plaintiff shows that her ability to access information has been impeded by state action, however minimally, then that is a sufficiently concrete injury to confer standing for a First Amendment claim.

Moving the books is problematic on its own. Making sure anyone who tries to access them has to carry around a “marked” book is worse.

Plaintiffs allege that the County has removed children’s books from the children’s sections of its libraries where children and their parents would expect to find them, and has attached stigmatizing labels to them that could subject individuals who browse them or check them out to embarrassment or opprobrium from library staff members or other patrons. This is a sufficiently concrete burden on Plaintiffs’ ability to access information to give them standing to bring this lawsuit.

And that’s obviously the point of this unconstitutional exercise: to “out” patrons who express an interest in content the government (under pressure from resident bigots) has decided needs to be not only segregated, but clearly marked as something the government dislikes.

The state also argued there was no First Amendment right to access information, at least not in this context. It quoted a Supreme Court decision dealing with public school libraries and claimed this meant public county libraries weren’t subject to this part of First Amendment protections. Unsurprisingly, it’s wrong here as well.

This argument is simply wrong, on two fundamental levels. First, Supreme Court majorities have in fact repeatedly acknowledged, in a wide variety of contexts, that the First Amendment protects the right to access information. See, e.g., Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“It is now well established that the Constitution protects the right to receive information and ideas.”) (collecting cases); see also Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (“The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read . . . .”). The precise contours of that right may sometimes be complicated or unclear, but there can be no reasonable debate as to whether the right exists and enjoys First Amendment protection.

Second, although the County is correct that Pico dealt with the right to access information in a school library rather than in a library that was open to the general public, this indicates that the right’s scope is broad—not narrow.

In that case, dealing with a public school library, the Supreme Court weighed the right to access against the limitations on minors’ rights that are part of the school experience. In cases like these, schools may have more latitude to restrict access to information for other overriding government concerns. Even if the court had decided public schools had blanket permission to restrict access to information (and it didn’t), that doesn’t apply to a case involving a county library accessible by anyone, not just minors/students.

Right now, the bigot-propelled status quo will remain in place. The lawsuit moves forward but the books still remain segregated and labelled. As the court notes, an injunction preventing the library from moving books would prevent it from featuring popular books or moving frequently requested books to a more easily accessed area. But the lack of injunction doesn’t mean there’s no plausible First Amendment allegations.

Eventually, this will end in the desegregation of these books or the county passing a law attempting to codify its First Amendment violation. Either way, the government will lose and the people will win. And yet, it’s clear to anyone observing the state of the nation that losing lawsuit after lawsuit is doing nothing to deter bigots from violating rights in hopes of oppressing certain people and suppressing certain views.

Filed Under: 1st amendment, arkansas, crawford county, lgbtq, libraries

Despite Some Progress, iFixit Says Apple’s Dedication To ‘Right To Repair’ Still Sucks

(Mis)Uses of Technology

from the we've-changed-but-not-really dept

Apple has never looked too kindly upon users actually repairing their own devices, or using lower cost independent repair services. The company’s ham-fisted efforts to shut down, sue, or otherwise imperil third-party repair shops are legendary. As are the company’s efforts to force recycling shops to shred Apple products (so they can’t be refurbished and re-used).

Recently, Apple has made a few pivots on this front, including, most notably, its apparent about face on California right to repair legislation. And while Apple has also made some modest progress in backing off its attempt to monopolize repair (see: its Self-Service Repair Program), outside organizations like iFixit say the tech giant still has a long, long way to go.

iFixit recently dropped the reparability score for the iPhone 14 from a recommend 7 out of 10 to a do-not-recommend 4. Why? The organization took heat from hardware geeks who noted the 7 out 10 score wasn’t accurate because Apple is still using “parts pairing” to ensure that independent, affordable repair is either cumbersome as hell or simply impossible.

From a pure hardware perspective the reparability architecture of the iPhone has definitely improved, but only if you follow Apple’s sanctioned process and buy the parts from Apple. If you buy the parts independently, the new parts you or your independent repair shop installed won’t work due to Apple’s sophisticated software protections:

“Today, you need one more thing: a software handshake, using Apple’s System Configuration tool. It contacts Apple’s servers to “authenticate” the repair, then “pairs” the new part to your system so it works as expected. Of course, it can only authenticate if Apple knows about your repair in advance, because you gave them the exact serial number of your iPhone, and they’ve pre-matched it to a display or battery. This is only possible if you buy the screen or battery directly from Apple. Forget harvesting parts—which is a huge part of most independent repair and recycling businesses. It’s also impossible to pair any aftermarket parts—which means only Apple-authorized repairs can truly restore the device to full functionality.”

That’s a lot of environmental waste and added consumer costs and restrictions created by a company that claims to have seen the light on “right to repair.” And as iFixit notes, Apple implements systems like this without much in the way of meaningful transparency:

“In a move that will not surprise close observers of Apple, they have developed the system without notifying the people who do the actual repair work that it impacts.”

Tech industry lobbyists are increasingly using their influence to ensure right to repair laws don’t cover the most problematic industries on right to repair (like medical equipment, game consoles, or autos), then they’re increasingly using software restrictions to make make affordable, independent repair as cumbersome and annoying as possible. All while soaking up media praise for having seen the light.

Filed Under: cellular, hardware, independent repair, iphone, right to repair, tinker, wireless
Companies: apple, ifixit