Funniest/Most Insightful Comments Of The Week At Techdirt

Techdirt

from the what's-the-word dept

This week, our first place winner on the insightful side is an anonymous comment about New York’s blatantly unconstitutional investigation into online platforms in the wake of the Buffalo shooting:

So, what the’re saying is…

This guy was able to leave a HUGE trail of information about his hate crimes… But now they want to demonize the same platforms where he left all this information instead of being thankful for the huge amount of information he was able to leave for law enforcement to follow.

Isn’t that basically cutting off your nose to spite your face?

You’ll never get rid of haters and trolls, but by pushing them into the darker parts of the internet, you’re reducing the effective methods of tracing their past actions should they become actual criminals rather than just trolls.

In second place, it’s another anonymous comment, this time in response to the tired old complaint about platforms and free speech:

If I tell people who enter my house that they can’t talk about something I don’t like, and someone talks about something I don’t like, I can kick them out, even if they’re unaware that I don’t like it. I’m not violating any of their rights by doing so.

Twitter can do the same in their house.

Why is this so hard for you to understand?

For editor’s choice on the insightful side, we start with a comment from JMT in response to the claim that Section 230’s legitimacy is called into question by the fact that the Supreme Court has never ruled on it:

The fact that there’s never been a circuit split to trigger a Supreme Court appeal proves the strength of the S230.

Next, it’s Naughty Autie with a response to another tired old type of comment, about platforms versus publishers:

When I upload a story to AO3, I’m the publisher of that story, not AO3. Similarly, when someone uploads a video to YouTube, they’re the publisher of that video, not YouTube. Get it yet, or are you going to carry on down the fastlane of stupid?

Over on the funny side, our first place winner is Tribune with a comment about politicians who blame video games for mass shootings:

Former San Francisco politician Leland Yee made a career of claiming that videogames cause violence until he was arrested for running guns to the Philippines.

In second place, it’s Stephen T. Stone with a response to our post suggesting that we should elect fewer stupid people:

Then how will Republicans win elections? 🙃

For editor’s choice on the funny side, we start out with a comment from PaulT in response to another commenter pointing out that someone’s source was “a very, very out of context and misleading Project Veritas video”:

Wait, did I miss the time they had another type of video?

Finally, it’s Thad with one more comment about blaming video games for the Buffalo shooting:

I’ve played a lot of video games and generally when there are nazis in them they’re the bad guys.

That’s all for this week, folks!

This Week In Techdirt History: May 15th – 21st

Techdirt

from the time's-arrow dept

Five Years Ago

This week in 2017, the NSA was pushing for a smooth renewal of Section 702 while more details were revealed about the process, and more info was emerging on the agency’s abuse of other programs. Meanwhile, we looked at the FCC’s efforts to make net neutrality supporters seem unreasonable, even though it was clear that most people support net neutrality. Of course, the agency wouldn’t listen to the commenters and ultimately voted to begin dismantling the rules. This was also the week that the MP3 began to exit patent protection, leading a lot of news outlets to fall for a silly trick by the patent holder (which terminated its licensing program without mentioning why) and start eulogizing about how “the MP3 is dead”.

Ten Years Ago

This week in 2012, the fearmongering about cybersecurity to push CISPA seemed to be working pretty well on the public. ICE and the DOJ were tying themselves in knots trying to argue for domain forfeiture in the Rojadirecta case, TV network executives were contemplating the argument that skipping commercials is illegal, and some courts seemed to be acting as though SOPA had passed. This was also the week that we learned the FBI was looking into a little technology with an uncertain future called Bitcoin.

Fifteen Years Ago

This week in 2007 there was much chatter about MySpace, with the Defense Department saying it and YouTube were eating up too much bandwidth, and state politicians continuing meaningless grandstanding against it and forcing the company to explain how the law works to state prosecutors. An appeals court made an important copyright ruling in the Perfect 10 case, saying Google’s thumbnails were fair use, and a bunch of copyright companies got together to form The Copyright Alliance. This was also the week of an important ruling that created one of the noteworthy limits on Section 230 protections.

Filed Under: history, look back

Stone Brewing, Sycamore Brewing Reach Settlement

Trademark

from the the-juice-is-loose dept

You will recall that we have been discussing a trademark suit between Sycamore Brewing and Stone Brewing recently. As you can see in images in the post we did about the lawsuit, and then the follow up post on the battle over an injunction requiring Stone Brewing to sticker over the offending branding, it’s pretty clear that this constituted trademark infringement. Part of what made this story noteworthy is that Stone Brewing has, for years, represented itself as a craft brewer ready to take on the big breweries on matters of intellectual property, as though it were some paragon of the industry. Instead, Stone Brewery appears to have turned to both trademark trolling and trademark infringer of smaller breweries.

Well, the Sycamore Brewing suit has now been settled, reportedly with no actual money changing hands.

The settlement came last week, shortly after Stone Brewing filed a countersuit against Sycamore calling its legal action a “sham.” The Escondido craft beer maker claimed that Sycamore didn’t disclose to the court — nor apparently to the U.S. Patent and Trademark Office —that a different brewery with distribution in 14 states has been using the phrase “Keep It Juicy” on its IPA beer cans since 2017.

That’s three years before Sycamore registered to trademark the tagline, which was granted in August 2021, according to Stone. The brewery contends this prior use of “Keep It Juicy” raises serious doubts over the trademark’s validity.

Now, serious doubts do not equal “sham”, of course, but I suppose such accusations are now moot. The case has settled. The post I linked to references that the preliminary injunction has been lifted, but doesn’t seem to detail out whether the agreement includes Stone’s promise to no longer use the trademarked slogan and dress of Sycamore Brewing. It is my understanding that the settlement does include that however, making this a win for Sycamore.

Stone Brewing, annoyingly, is back to playing the victim here.

“While we are relieved this case is over, we feel it’s necessary to set the record straight,” said Stone Brewing Chief Executive Maria Stipp. “Sycamore forced Stone to incur hundreds of thousands of dollars in legal expense to defend ourselves and sent our team scrambling to sticker 21,000 boxes of beer in warehouses across the country taking more than 600 hours of valuable time. As we now know, all of this was because of Sycamore’s baseless trademark claims and opportunism.”

… said the company that successfully sued Molson Coors for making the “stone” part of “Keystone” beer’s label really big. Seriously, go review that case; it’s pretty much all there was.

This case was much more striking in terms of the use of another’s registered trademark. I frankly don’t remember David being so petulant after slaying Goliath.

Filed Under: beer, keep it juicy, trademark
Companies: stone brewing, sycamore brewing

The FBI Definitely Wanted NSO Group Malware For Investigative Use Despite Its Earlier (Non)Denial

(Mis)Uses of Technology

from the unexpected-show-of-restraint dept

The New York Times has obtained more information about the FBI’s courting of NSO Group, something that has since raised questions from its oversight.

An earlier report from the Times stated that NSO Group had arrived at FBI headquarters in 2019 to allow the agency to test drive a version of its Pegasus malware, one that allowed it to target US phone numbers. According to NSO, Pegasus, in its original form, is incapable of targeting US phone numbers, a concession NSO made while selling its malware to human rights abusers around the world.

The initial set of documents obtained by the Times gave the impression that this was nothing more than an NSO sales call, one hoping to make inroads in a nation less associated with human rights abuses than NSO’s existing customer base. To its credit, the FBI handled this carefully, buying up dummy phones to target and ultimately deciding against purchasing the bespoke malware (dubbed “Phantom”) because it raised too many constitutional concerns.

But new documents obtained by the New York Times show it was the FBI courting NSO, rather than the other way around. It definitely wanted to target Americans with this powerful, zero-click malware.

The F.B.I. informed the Israeli government in a 2018 letter that it had purchased Pegasus, the notorious hacking tool, to collect data from mobile phones to aid ongoing investigations, the clearest documentary evidence to date that the bureau weighed using the spyware as a tool of law enforcement.

The F.B.I.’s description of its intended use of Pegasus came in a letter from a top F.B.I. official to Israel’s Ministry of Defense that was reviewed by The New York Times. 

The FBI already had a license for Pegasus in 2018, months before NSO Group showed up with a version that could target US phone numbers. Since the FBI is a (self-proclaimed) anti-terrorism agency, it could have deployed Pegasus to target foreign phones. So far, no documentation has surfaced that suggests the FBI deployed the unaltered Pegasus spyware. But the fact that it made the purchase prior to the NSO’s visit demonstrates a powerful interest in fully compromising phones of investigation targets.

It turns out $5 million in tax dollars can buy a whole lot of nothing. The FBI ditched both Pegasus and its US equivalent, Phantom, without ever having used them in investigations. At least that’s what FBI Director Chris Wray told Congress:

During a congressional hearing in March, the F.B.I. director, Christopher A. Wray, said the bureau had bought a “limited license” for testing and evaluation “as part of our routine responsibilities to evaluate technologies that are out there, not just from a perspective of could they be used someday legally, but also, more important, what are the security concerns raised by those products.”

“So, very different from using it to investigate anyone,” he said.

Maybe so. But then again, this newly released public record punches a couple of holes in the narrative created by the FBI’s first document release. There’s no reason to believe this is the end of the story. And, at the very least, it shows the FBI is willing to spend millions to find some way to work around constitutional protections and expand its domestic surveillance capabilities.

Filed Under: 4th amendment, doj, fbi, malware, pegasus, phantom, spyware, surveillance
Companies: nso group

$100 Bluetooth Hack Can Unlock All Kinds Of Devices, Including Teslas, From Miles Away

(Mis)Uses of Technology

from the dumb-tech-is-smart-tech dept

While they’re not impervious, at least you know where you stand with a good, old fashioned dumb lock. That’s in stark contrast to so-called “smart” locks, which studies have repeatedly shown to be easily compromised with minimal effort. One report showed that 12 of 16 smart locks they tested could be relatively easily hacked thanks to flimsy security standards.

Now there’s a new vulnerability to worry about. Sultan Qasim Khan, a researcher at NCC Groupover has discovered a new Bluetooth vulnerability that’s relatively trivial to exploit with around $100 in hardware, and impacts potentially thousands of Bluetooth devices, including Teslas.

The attack exploits a weaknesses in the Bluetooth Low Energy (BLE) standard adhered to by thousands of device makers, including “smart” door locks, cars, laptops, and various “internet of things” devices. It’s a form of “relay attack” that usually requires two attackers, one near the target, and one near the phone used to unlock the target.

But this class of attack doesn’t even require two people. A relaying device can be placed near where the target device is located or will be located (like by your driveway), and the other attacker can be targeting the device from hundreds of yards — or even miles — away:

“Hacking into a car from hundreds of miles away tangibly demonstrates how our connected world opens us up to threats from the other side of the country—and sometimes even the other side of the world,” Sultan Qasim Khan, a principal security consultant and researcher at security firm NCC Group, told Ars. “This research circumvents typical countermeasures against remote adversarial vehicle unlocking and changes the way we need to think about the security of Bluetooth Low Energy communications.”

Device makers have implemented a bunch of countermeasures to prevent against BLE attacks like these, but Khan found a way to mitigate those attacks. Many other companies are smart enough to avoid using BLE for proximity authentication (since it was designed for data transfer, not authentication), but given that privacy and security is an afterthought for many companies, many still do.

All told, it’s just another reminder that dumb tech is often… smarter.

Filed Under: bluetooth, hackers, internet of things, laptops, smart locks, vulnerabilities

No, Twitter Doesn’t Want To ‘Censor’ Anyone, It Just Wants Everyone To Stop Attacking Each Other

Content Moderation

from the have-a-little-respect dept

Last month I wrote about how, contrary to the weird narrative, Twitter has actually been among the most aggressive companies fighting for free speech online. While many people criticize it, they are wrong, or just uninformed. Mostly, they think (falsely) that because Twitter doesn’t want some speech that you like on their site, it somehow means they’re against free speech. The reality is a lot more complicated, of course. As we pointed out, former Reddit CEO Yishan Wong’s long thread about content moderation highlighted that people doing content moderation generally aren’t making decisions based on politics, they just want people to stop fighting all the time.

Recently, the Washington Post had an excellent article about Twitter’s Vijaya Gadde, the company’s top lawyer, who also runs their trust and safety efforts, that talks about how she is a strong defender of free speech, who also recognizes that, to support free speech, you have to come up with plans to deal with abusive, malignant users. That doesn’t mean automatically banning them, but exploring the solution space to see what kinds of programs you can put in place to limit the destructive nature of some users.

I recognize that this is a space filled with people who insist their emotional beliefs are the be all and end all when it comes to content moderation, but it would be nice if at least some of those people were willing to actually read through articles like this, that highlight how many different trade-offs and nuances there are in these discussions.

Twitter colleagues describe Gadde’s work as difficult but necessary and unmotivated by political ideology. Defenders say her team, known as the trust and safety organization, has worked painstakingly to rein in coronavirus misinformation, bullying and other harmful speech on the site, moves that necessarily limit some forms of expression. They have also disproportionately affected right-leaning accounts.

But Gadde also has tried to balance the desire to protect users with the values of a company built on the principle of radical free speech, they say. She pioneered strategies for flagging harmful content without removing it, adopting warning labels and “interstitials,” which cover up tweets that break Twitter’s rules and give people control over what content they see — strategies copied by Twitter’s much larger rival, Facebook.

The article also details how she has lead the company’s aggressive pushback against foreign laws that are real attacks on free speech:

For years, she has been the animating force pushing Twitter to champion free expression abroad. In India and Turkey, for example, her team has resisted demands to remove content critical of repressive governments. In 2014, Gadde made Twitter the only Silicon Valley company to sue the U.S. government over gag orders on what tech companies could say publicly about federal requests for user data related to national security. (Five other companies settled.)

Contrast that with Elon Musk, who quickly endorsed the EU’s approach to platform regulation at a time when Twitter, under Gadde’s leadership, has been pushing back against parts of that plan, by noting how it conflicts with basic free speech concepts.

The article highlights, as we have tried to do for years, that content moderation is a complicated and nuanced topic, that doesn’t fit neatly with the arguments around “free speech.” Part of this is that social media isn’t just about speech, but about being able to get your speech in front of a specific audience. People mostly don’t care if you spout bullshit nonsense on your own website where only those who seek it out can find it, but due to the nature of Twitter and how it connects users, it allows people to inject their speech into the notifications of others — and that creates elements for abuse and harassment, that actually harm free speech, by driving people out of the wider discussion entirely.

There is, obviously, some level of balance here. Not all criticism, hell, most criticism isn’t abusive or harassing, even if it may feel that way to those on the receiving end of it. But anyone trying to build an inclusive and trustworthy forum needs to recognize that bad actors push thoughtful users away. And at least some plan needs to be in place to deal with that.

But, part of that, is that Twitter’s DNA has always been to favor more speech over less, and the company really only pushes back in fairly extreme cases when pushed to the edge, and where no other decision is reasonably tolerable, if the site wants to keep users.

Even as the company took action to limit hate speech and harassment, Gadde resisted calls to police mere misinformation and falsehoods — including by the new president.

“As much as we and many of the individuals might have deeply held beliefs about what is true and what is factual and what’s appropriate, we felt that we should not as a company be in the position of verifying truth,” Gadde said on a 2018 Slate podcast, responding to a question about right-wing media host Alex Jones, who had promoted the falsehood on his show, Infowars, that the Sandy Hook school shooting was staged.

The company was slammed for statements like this at the time, but believed strongly that it was drawing the line in a place that made the most sense to be broadly inclusive. Of course, that line moves over time as the context and the world around us moved. In the early days of the pandemic, with people dropping dead everywhere, at some point, most people are going to realize that spreading more information that leads to more people dying feels morally disturbing.

It’s not out of any political beliefs, or a desire to “censor” viewpoints. It’s just a basic moral stance on how to help the public stay alive.

The company, also under her leadership, pushed for alternative tools to dealing with misinformation, rather than the go to move of taking down content:

Meanwhile, Gadde and her team were working with engineers to develop a warning label to cover up tweets — even from world leaders such as Trump — if they broke the company’s rules. Users would see the tweet only if they chose to click on it. They saw it as a middle ground between banning accounts and removing content and leaving it up.

In May 2020, as Trump’s reelection campaign got underway, Twitter decided to slap a fact-checking label on a Trump tweet that falsely claimed that mail-in ballots are fraudulent — the first action by a technology company to punish Trump for spreading misinformation. Days later, the company acted again, covering up a Trump tweet about protests over the death of George Floyd that warned “when the looting starts, the shooting starts.” More such actions followed.

And while some people insisted that this was a form of “censorship,” it was actually the opposite. It was literally “more speech” responding to speech that Twitter felt was problematic. Twitter was one of the first companies to use this approach as an alternative to removing speech… and yet it still resulted in very angry people insisting it was proof of censorship.

Anyway, there’s a lot more in the article, but it’s a really good and thorough look not just at the various tradeoffs and nuances at play, but also how Twitter’s current management made some of those decisions, not to try to silence voices, but quite the opposite.

Filed Under: content moderation, free speech, vijaya gadde
Companies: twitter

Report Shows ICE’s Massive Surveillance Apparatus Is All Up In Americans’ Everything

Privacy

from the high-tech-thugging dept

Immigration and Customs Enforcement (ICE) has long made its own case for abolishment. Before ICE earned its current reputation as a fake-school running, report-altering, rogue agency interested in ejecting as many non-white people from America as possible, ICE ran interference for entrenched industries.

This led to things like ICE officers raiding small repair shops to prevent people from having their iPhones fixed without Apple’s explicit blessing (and premium fees), or seizing websites en masse without even the slightest nod towards due process.

That was supposedly the “customs” part of its enforcement efforts. Once Donald Trump took office, ICE was given permission to take the gloves off its immigration enforcement efforts. Galvanized by rhetoric that portrayed any brown person as inherently dangerous (and propelled by the enthusiasm of a failed casino owner who has filed for bankruptcy multiple times), ICE went all in on punishing people who didn’t seem white enough to be allowed to live in this country.

Because ICE mainly deals with people it doesn’t consider to be people (alleged scofflaws, undocumented immigrants), it has repeatedly decided things like local laws and/or the US Constitution do not apply to its activities. Sidestepping Supreme Court rulings and long-held constitutional rights, ICE has partnered with private contractors to engage in surveillance very few people would consider to be either lawful or constitutional.

What kind of monster has ICE become? A recent report — sourced from hundreds of public records gathered by several rights organizations — says ICE’s surveillance dragnet is almost unimaginably large. And it definitely surpasses anything its supposed first level of oversight (that’s your Congressional reps, folks!) believes ICE is engaged in.

Let’s just start with the set of bullet points listed in the “American Dragnet” report covering the results of this comprehensive, two-year investigation into ICE’s surveillance activities.

ICE has scanned the driver’s license photos of 1 in 3 adults.

ICE has access to the driver’s license data of 3 in 4 adults.

ICE tracks the movements of drivers in cities home to 3 in 4 adults.

ICE could locate 3 in 4 adults through their utility records.

So. Why does an agency mainly focused on non-Americans have access to so many records pertaining to actual Americans? Well… because it can. For several reasons.

The Third Party Doctrine eliminates the expectation of privacy needed to create a warrant requirement. State and local partnerships with federal agencies allow agencies like ICE to trawl local law enforcement databases. Advancements in tech have increased the number of inputs ICE can access, as well as the productivity of the devices adding those inputs. And hardly anyone in power seems to be interested in directly overseeing ICE, much less pushing back against its dragnet expansion.

Since its formation in 2003, ICE has desired more data and less oversight. Thanks to this combination of contributing factors, it is now sitting dead center in this perfect storm.

After 9/11, ICE paired those programs with much broader initiatives, tapping vast databases held by private data brokers as well as state and local bureaucracies historically uninvolved with law enforcement. Through those initiatives, ICE now uses information streams that are far more expansive and updated far more frequently, including Department of Motor Vehicle (DMV) records and utility customer information, as well as call records, child welfare records, credit headers, employment records, geolocation information, health care records, housing records and social media posts.

Since 2003, ICE has spent $2.8 billion on surveillance and data collection. The ROI has been tremendous. Leveraging law enforcement partnerships and private contractors has turned ICE into a surveillance entity on par with the NSA — and all without attracting too much attention from its Congressional oversight.

ICE trawls drivers license databases because some states allow immigrants to get licenses before they become citizens. This doesn’t mean every immigrant targeted is here illegally. Driving is essential in America, and immigrants (undocumented or not) need to get to work, buy groceries, visit relatives/friends… all of this requires the driver to possess a valid license. This may be an easy way to find immigrants subject to removal but it also gives ICE agents the ability to surf DMV databases for other reasons, including their own personal amusement.

Some immigrants may not trust the government. But they still need the basics of life, like electricity and running water. ICE is all over this as well. Not only does it harvest records from private utility companies, it leverages the capabilities of other private companies to make sense of this data, as well as make the agency one step further removed from both the process and accountability. This free ride to utility records may be (belatedly) coming to an end thanks to the efforts of Senator Ron Wyden, but for years it was just another way ICE was able to access records belonging to millions of actual Americans.

So, how does ICE end up running a massive surveillance apparatus that has mostly flown under the radar? Well, it doesn’t happen in a vacuum. The reasons listed above — the tech explosion, the support of multiple presidents, the lack of meaningful oversight, the resourcefulness and drive of the agency itself — all contributed to the erection of this massive dragnet.

But it also happens in a vacuum. This one is created by a nearly complete lack of oversight, something that’s likely prompted by ICE’s directives. When an agency is tasked with removing non-Americans, it’s easy to ignore its means and methods since it’s only dealing with people we (both as constituents and representatives) deem are not worthy of the rights the federal government can barely be persuaded to recognize when dealing with natural born citizens.

Most congressional leaders did not learn about ICE face recognition scans of DMV photos until The Washington Post ran an exposé on the practice, reporting on records obtained by the Center on Privacy & Technology. […] ICE’s surveillance initiatives have regularly flown under Congress’ radar. While a few political leaders have pressed ICE in oversight letters and used appropriations riders to end the most aggressive of ICE’s actions, to date there has not been one full congressional hearing or Government Accountability Office (GAO) report focused on ICE surveillance.

The report ends with several recommendations. At the top of the list is the request that Congress actually get back into the oversight business. It also recommends most state-level oversight to ensure local law enforcement agencies aren’t ignoring state laws to provide ICE with access to government databases or private companies’ records. And it says ICE should not be allowed to use utility company records for the purpose of seeking out people to deport.

Thanks to the release of this report, Congressional members will no longer be able to pretend they’re unaware of ICE’s massive surveillance dragnet. This will hopefully prompt fast and direct action that limits what ICE has access to and what it is allowed to do to carry out its deportation efforts. The fact that a majority of US citizens are subject to the same surveillance should hopefully tip the scale towards swift Congressional action.

Filed Under: 3rd party doctrine, 4th amendment, american dragnet, dmv database, drivers licenses, ice, surveillance

Daily Deal: The 2022 Cisco Certified Technician Training Prep Bundle

Deals

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

The 2022 Cisco Certified Technician Training Prep Bundle has 4 courses to help you pass the Cisco and CompTIA Network Exams. You’ll learn about the latest networking technologies, IPv4 and IPv6, advanced routing, switching, and more. It’s on sale for $35.

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

If You Think Free Speech Is Defined By Your Ability To Be An Asshole Without Consequence, You Don’t Understand Free Speech (But You Remain An Asshole)

Say That Again

from the free-speech-is-not-that dept

One of the more frustrating things about the various “debates” regarding “free speech” lately, is how little they are actually about free speech. Quite often, they are actually about people who are quite upset about having to face social consequences for their own free speech. But facing social consequences has always been part of free speech. Indeed, it’s part of the vaunted “marketplace of ideas.” If people think your ideas aren’t worth shit, they may ignore or shun you… or encourage others to do the same.

Over at The Bulwark, Prof. Nicholas Grossman has a really good article exploring Elon Musk’s attempt at reframing the debate over free speech. It is well worth reading. The crux of the argument that Grossman makes (in great detail that you should go read to have it all make sense) is that when you break down what Musk actually seems to be thinking about free speech, his definition hews quite similarly to what a lot of trolls think free speech means: the right to be a total asshole without consequence.

The article highlights what many of us have said before (disclaimer, it does link to some of my writing on the subject), that the real underlying question is not actually about free speech, but where society should draw the line on what is, and what is not, acceptable in public company. And that’s really what this is all about. Free speech, as a concept, has to fall back on whether or not the government suppresses speech. For all the talk about social consequences of free speech, or whether or not there is a “culture of free speech” or “principles of free speech,” everyone has some level of internal voice that notes what kind of speech they feel goes too far for polite company — even if they don’t think such speech should be illegal.

But, then, the question becomes, if there is some speech that I, personally, don’t wish to associate with, should others be forced to do so? And that’s where the debates over content moderation actually live. In that space that says “where should the line be drawn” for what is acceptable and what is not. And when you look closely at the actual debate, it always comes down to “I want to be a disrespectful asshole to people I don’t like, and I don’t want to face any consequences for it.”

As Grossman aptly notes, a private company deciding whether or not to host your content, isn’t really a free speech issue at all. Every platform agrees that some moderation is necessary. Every platform that has tried to do otherwise, changes course, often within days.

Multiple Twitter alternatives have been tried, all vowing to be “free speech” platforms that don’t moderate content. Every one of them—Gab, Parler, Gettr, etc.—has ended up moderating speech and enforcing rules, because what their “unfettered free speech” resulted in was doxxing, promotion of violence, and various other depravities that underscored why content moderation became the norm on the internet in the first place. And all these alternative platforms have flopped as businesses because “Twitter for people who want to post things you can’t post on Twitter” isn’t appealing to most users.

For business reasons, if nothing else, Twitter under Elon Musk would still moderate content. It might, however, change which users it prioritizes.

On top of that, he demolishes the idea that content moderation is about “leftists” trying to “censor” conservative voices:

This supposed bias is an article of faith for large swaths of the right, but when serious researchers have gone looking for it, they don’t find empirical support. A 2021 study found that, across seven advanced democratic countries, Twitter’s algorithm boosts posts by right-wing politicians and parties a little more than posts by left-wing politicians and parties. Another 2021 study set loose some politically neutral “drifter bots” on Twitter and found strong evidence of conservative bias, but “from user interactions (and abuse) rather than platform algorithms.”

Content moderation decisions can be haphazard, not least because the Big Tech business model means a small number of employees rely on algorithms and user reporting to oversee far more content than they can possibly handle. Public perception of these decisions often derives from a few anecdotes repeated by interested parties, and doesn’t match the data. For example, a 2022 paper found strong support in the U.S.—from both Democrats and Republicans—for social media companies taking action against misinformation. Of accounts banned or suspended for misinformation, more were conservative than liberal, but there was no evidence of political bias in enforcement decisions. Every banned or suspended account had clearly violated terms of service, it’s just that people on the right happened to break misinformation rules more often.

So, if there’s no actual evidence of bias, and everyone (even Musk) recognize that there needs to be some level of moderation, what is this “debate” really about. As Grossman highlights, it basically all comes down to whether or not you can be a total asshole without having a social media site say “that crosses our line of what we feel is appropriate here.” He uses the example of the Babylon Bee, whose Twitter suspension for misgendering someone has been pointed to as the catalyst for Musk to decide to buy Twitter.

But is that actually a “free speech” issue?

Of course not. You can be an asshole all you want, and you can disrespect people in obnoxious ways, proudly highlighting your own moral degeneracy all you want. You just can’t expect everyone else to support you in doing it, and not tell you when they feel your behavior has crossed their specific line, their terms of providing service.

So, yes, Elon Musk can take over Twitter, and then he can have every right to change the rules to whatever he wants. Just like Gab and Parler and GETTR and Truth Social and others have every right to set their own rules as well. But none of those are actually battles about “free speech.” They’re battles about where private entities draw the line of what they feel is and is not appropriate on their own property.

And when you look at it that way, you realize that none of Musk’s arguments are actually for free speech. They’re for his desire to redraw the line to allow more assholes on one site, without consequence. And, as Grossman notes, this insistence that it’s about free speech, really really distorts the underlying principles of free speech.

Twitter is a private company, and its rules are up to its owners, whether that’s Elon Musk or anyone else. As a supporter of the First Amendment, I accept that, even if I don’t agree with their choices. But as someone who greatly values free speech—not just legal protections from government, but a culture that fosters expression and dialogue—I refuse to cede the concept of free speech to those who think a defining feature is trolls trying to drive trans people and other minorities off social media.

And that’s exactly right. I’ll fight more than anyone to actually protect the 1st Amendment, and your rights to say what you want and to be an asshole on your own property. But there is nothing “free speech” about just demanding that private entities draw the line for “what level of asshole do we allow” somewhere more assholish.

Filed Under: assholes, content moderation, elon musk, free speech, nicholas grossman, trolling
Companies: twitter

Appeals Court Hands Qualified Immunity To Cops Who Arrested Someone Over Satirical Facebook Posts

Free Speech

from the how-could-they-have-known-this-would-be-unlawful dept

Back in early 2016, Parma, Ohio resident Anthony Novak decided to have a little fun. He created a parody of the Parma Police Department’s Facebook page and began posting obviously satirical announcements, like the following:

The Parma Civil Service Commission will conduct a written exam for basic Police Officer for the City of Parma to establish an eligibility list. The exam will be held on March 12, 2016. Applications are available February 14, 2016, through March 2, 2016. Parma is an equal opportunity employer but is strongly encouraging minorities to not apply.

The test will consist of a 15 question multiple choice definition test followed by a hearing test. Should you pass you will be accepted as an officer of the Parma Police Department.

Other content included announcements for the PD’s “roving abortion van,” a “pedophile reform event,” and plans to arrest anyone caught outside between noon and 9 pm.

The Parma PD couldn’t take a joke. Instead, it took action. It launched a full-blown investigation that involved seven officers, secured three search warrants, and raided Novak’s apartment to seize multiple electronic devices. Novak was charged with multiple felonies before the prosecutor’s office decided that might be a bad idea and offered a plea to reduce the charge to an unspecified misdemeanor. Novak rejected the offer. The police and prosecutor screwed around for awhile before finally deciding to charge him with disrupting police service by causing the department to be… um… mildly inconvenienced by calls about the parody page: a grand total of 10 calls in 12 hours.

Novak sued. The district court somehow found a way to award immunity to all of the involved officers. Novak appealed and the Sixth Circuit Court rolled back part of the lower court’s decision, pointing out the arrest clearly targeted protected speech. Just because the Parma PD didn’t like the parody page’s content didn’t justify the arrest, search, and criminal charges.

Novak’s page delighted, disgusted, and confused. Not everyone understood it. But when it comes to parody, the law requires a reasonable reader standard, not a “most gullible person on Facebook” standard. The First Amendment does not depend on whether everyone is in on the joke. Neither is it bothered by public disapproval, whether tepid or red-hot.

It asked the district court to take a second look at the officers’ immunity claims, especially in light of their use of a law the Appeals Court found extremely questionable.

Taken at face value, the Ohio law seems to criminalize speech well in the heartland of First Amendment protection. This broad reach gives the police cover to retaliate against all kinds of speech under the banner of probable cause. Critical online comments, mail-in or phone bank campaigns, or even informational websites that incite others to “disrupt” or “interrupt” police operations could violate the law.

Novak’s return trip to the district court went just as poorly as his initial trip. Five years after his arrest, the district court again awarded qualified immunity to the officers. It said the cops were reasonable to assume the parody page “disrupted police operations,” even if the facts on the record showed disruption was almost nonexistent and the content of the parody page was likely protected First Amendment expression. If the officers had probable cause to pursue an arrest, the lower court saw no reason to determine whether or not the page’s content was protected speech.

The case returned to the Sixth Circuit Appeals Court. This time around, the Sixth Circuit agrees [PDF] with the lower court: qualified immunity protects these officers from being sued over what is almost certainly a violation of Novak’s First Amendment rights. If there’s probable cause, there’s no reason to discuss the underlying rights violations.

No one contests that Novak used a computer and the Internet to create his knockoff page. And the officers believed that Novak’s page had “disrupted” their operations. They knew the call center had received multiple calls about the page, and the statute imposes no lower bound on how much disruption is required. So the officers could reasonably believe that the calls constituted a disruption. As to the knowledge element, the officers were permitted to rely on inferences. Here, the officers inferred that Novak knew he was disrupting operations from his decisions to repost the Department’s warning post on his own page and to delete comments that explained the page was fake.

The Appeals Court notes that protected speech can’t serve as the basis for probable cause. But it explains this apparent contradiction away by saying that because probable cause existed, the officers were free to assume (in an absence of case law) Novak’s speech was unprotected.

But while probable cause here may be difficult, qualified immunity is not. That’s because qualified immunity protects officers who “reasonably pick[] one side or the other” in a debate where judges could “reasonably disagree.” Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 443 (6th Cir. 2016). That’s just what the officers did—they reasonably found probable cause in an unsettled case judges can debate. Indeed, Novak has not identified a case that clearly establishes deleting comments or copying the official warning is protected speech. So even with Leonard’s protected-speech rule on the books, the officers could reasonably believe that some of Novak’s Facebook activity was not parody, not protected, and fair grounds for probable cause.

What’s more, the officers had good reason to believe they had probable cause. Both the City’s Law Director and the judges who issued the warrants agreed with them. Reassurance from no fewer than three other officials further supports finding that the officers “reasonably,” even if “mistakenly,” concluded that probable cause existed. Wesby, 138 S. Ct. at 591 (cleaned up). That’s enough to shield Riley and Connor from liability.

At the very end of the decision, the Appeals Court tacks on a very minimal, in-word-only wrist slap for the officers who felt being parodied justified an arrest. It’s not enough.

But granting the officers qualified immunity does not mean their actions were justified or should be condoned. Indeed, it is cases like these when government officials have a particular obligation to act reasonably. Was Novak’s Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak’s and the government’s time? We have our doubts. And from the beginning, any one of the officials involved could have allowed “the entire story to turn out differently,” simply by saying “No.” Bari Weiss, Some Thoughts About Courage, Common Sense (Oct. 19, 2021). Unfortunately, no one did.

That’s the problem with qualified immunity. If no one in power steps up to be the adult in the room, every government adult behaving like a child gets rewarded with immunity simply because their childish behavior hasn’t generated courtroom precedent. And when the discussion of rights violations gets short-circuited by qualified immunity questions, no new precedent is erected, allowing the vicious cycle to continue until one court finally decides the cops have gone too far.

Filed Under: 1st amendment, 6th circuit, anthony novak, ohio, parma, parma pd, parody, qualified immunity