As you've likely heard by now, the Trump administration has restored Jim Acosta's hard pass for media briefings, and CNN has accordingly dropped its lawsuit, returning the battle between Trump and the media to cold-war-status for the time being. But the White House also took the opportunity to issue new rules for its press conferences which, rather than truly addressing any of the issues that formed the basis of the lawsuit, appear to leave the door wide open for future abuses by Trump and challenges by the press:

(1) A journalist called upon to ask a question will ask a single question and then will yield the floor to other journalists;

(2) At the discretion of the President or other White House official taking questions, a follow-up question or questions may be permitted; and where a follow up has been allowed and asked, the questioner will then yield the floor;

(3) “Yielding the floor” includes, when applicable, surrendering the microphone to White House staff for use by the next questioner;

(4) Failure to abide by any of rules (1)-(3) may result in suspension or revocation of the journalist’s hard pass.

Basically, the White House seems to be setting itself up with the absolute bare minimum framework that it could kinda-sorta claim constitutes viewpoint-neutral due process the next time it wants to kick out a reporter. Functionally the rules don't seem to change much, since who gets the floor at White House press conferences has always ultimately been at the discretion of the person at the podium, but this formalizes the threat of pass revocation for those who don't play nice enough for Trump's tastes. Though many reporters are (rightfully) speaking out against the clear anti-press tone of the rules, and (correctly) pointing out that followup questions are one of the most critical components of good journalism, the reality is that this just puts things in a holding pattern until the next time Trump kicks someone out.

For one thing, the rules don't actually address any of the due process requirements set out in Sherrill v. Knight and expanded on by the judge's TRO restoring Acosta's pass, so the entire fifth amendment question still falls to how these rules get enforced:

The court in Sherrill held that this process must include notice, an opportunity to rebut the government's reasons and a written decision. And ... although the court in Sherrill did not have occasion to address it, when an important interest is at stake and when the government is able to provide this process before deprivation, it generally must do so.

Moreover, simply stating that the president has discretionary power doesn't eliminate the first amendment issue. Again, it will come down to how that power is used — specifically, whether it's used for viewpoint-based discrimination. If there is another incident and another legal challenge, these rules won't change much, and something like CNN's initial first amendment argument could easily still apply:

Defendants' justifications for impeding Plaintiffs' First Amendment rights are hollow and hardly sufficiently compelling to justify the indefinite revocation of Acosta’s White House credentials. Consequently, the only reasonable inference from Defendants’ conduct is that they have revoked Acosta's credentials as a form of content- and viewpoint-based discrimination and in retaliation for Plaintiffs' exercise of protected First Amendment activity.

The sole justification for Defendants’ conduct is their dislike for Plaintiffs’ coverage of the administration and critique of the President. But that is insufficient to justify such a substantial restriction on Plaintiffs’ First Amendment rights.

Meanwhile, in the full statement laying out the new rules, Sarah Sanders laments that they were created with "a degree of regret" and are only necessary because they can tragically no longer rely on "a set of understood professional norms."

If only they cared so much about presidential norms.

A few years back, I was asked to create a presentation for a few visiting European executives, to explain "what makes Silicon Valley, Silicon Valley." It was a fun presentation, and one of the people who saw it later had me give it to an ever rotating crew of visiting European execs and policymakers (I even got to give the talk once over in the UK). I believe I did the presentation half a dozen times or so. The person who set up most of those talks later moved on to another job and it's been years since I last gave the presentation. It always led to an interesting discussion, though, because so much of what I talked about seemed to go against their core instincts about innovation (the presentation also debunks some of the common myths about the success of Silicon Valley). Maybe, one day, I'll get to give the talk again.

However, what fascinated me most was the general resistance to understanding the fundamentals of both innovation and the internet. But in the past few years, it's become increasingly clear that the EU's concept of the internet is almost entirely out of sync with how digital innovation works, especially with the ways in which the EU has gone about regulating the internet -- from the GDPR to the Copyright Directive, to the antitrust efforts, to the Terrorism regulation.

The Economist recently explored this issue, suggesting that Europe will never produce its own Google. While there are a few European tech success firms, they're still greatly limited and there are a lot fewer of them than elsewhere:

London, a global tech hub, is home to DeepMind, a leading artificial intelligence (AI) outfit; Stockholm is home to Spotify, a dominant music-sharing service; Cambridge-based Arm makes processor chips for almost all the world’s smartphones.

Yet still Europe lacks large firms in areas like social media, e-commerce and cloud computing comparable in scale to America’s Google and Microsoft, or China’s Alibaba and Baidu. Of the world’s 15 largest digital firms, all are American or Chinese. Of the top 200, eight are European. Such firms matter. They operate dominant online platforms and are writing the rules of the new economy in the way Cockerill’s innovations did in his day.

Unfortunately, rather than focusing on the constant regulatory attacks by EU policymakers on the key elements of innovation in the digital age, the Economist article falls back on the same old excuse we've heard from Europeans for years and years: the country has too many different languages and a complex set of different laws in each country:

Today, however, Europe’s patchwork is a disadvantage. New technologies require vast lakes of data, skilled labour and capital. Despite the EU’s single market, in Europe these often remain in national ponds. Language divides get in the way. Vast, speculative long-term capital investments that make firms like Uber possible are too rarely available on European national markets. True, there is progress. European universities are working more closely together, and in 2015 the EU adopted a new digital strategy that has simplified tax rules, ended roaming charges and removed barriers to cross-border online content sales. But about half of its measures—like smoother flows of data—remain mere proposals.

And while I'm sure there's some truth to that stifling some aspect of European success, it doesn't stand up to much scrutiny. After all, most of the giant American internet firms have figured out how to work in those vastly different European markets, despite not even being headquartered there. So clearly it can be done.

The larger problem, it seems has much more to do with the general distrust for disruptive innovations. The European approach, consistently, appears to favor slowing (or stopping) innovation unless all possible "harms" are minimized, even if this comes at the expense of the benefits. There are arguments to be made for this approach -- preventing harm is a laudable goal. But it leaves out the other side of the equation: it kills off massive amounts of benefits. This is not to say that the general approach should be a free for all, or that potential harms should be ignored. Nor is it to say that we should be purely utilitarian and weigh the two sides. But, an innovative approach that enables experimentation and learning, and a focus on providing much more benefits for the public seems to be much more effective at creating incredibly valuable services.

There is, of course, much more involved in building out a successful innovation ecosystem that builds hugely powerful services, but the EU seems to have little to no interest in actually figuring out how it can work.

We've long noted how the painful lack of security and privacy standards in the internet of (quite broken) things is also a problem in the world of connected toys. Like IOT vendors, toy makers were so eager to make money, they left even basic privacy and security standards stranded in the rear view mirror as they rush to connect everything to the internet. As a result, we've seen repeated instances where your kids' conversations and interests are being hoovered up without consent, with the data frequently left unencrypted and openly accessible in the cloud.

When this problem is studied, time and time again we're shown how most modern, internet-connected toys can be fairly easily hacked and weaponized. Granted since we haven't even gotten more pressing security and privacy problems tackled (like the vulnerability of our critical infrastructure), problems like Barbie's need for a better firewall tend to fall by the wayside.

Another recent case in point: A location-tracking smartwatch worn by thousands of children has proven... you guessed it... rather trivial to hack. The MiSafes Kid's Watcher Plus is a "smart watch for kids" that embeds a 2G cellular radio and GPS technology, purportedly to let concerned helicopter parents track their kids' location at all times. But security researchers at UK's Pen Test Partners have issued a report calling the devices comically unsecure. As with many IOT devices, the researchers found that the devices and systems they rely on did not encrypt any of the data being transmitted:

"I proxied the iOS app through Burp and could see that the traffic was not encrypted. Personal and sensitive information could be entered into the application such as phone numbers, passwords, as well as information relating to children. Profile pictures, names, gender, date of birth, height, and weight all transmitted across the internet in cleartext."

The researchers were quick to note that the only check the system's API appears to perform is matching the UID with the session_token, so simply changing the family_id in the get_watch_data_latest action, allows an attacker to return the watch location and device_id associated with that family. Since the watch updates the GPS coordinates to the API every five minutes, it provides a hacker near real-time insight into your kid's location. Worse, spoofing a caller ID would let said theoretical attacker covertly listen in on your kids, or contact them... while pretending to be you:

"The watch did have some protection against arbitrary people calling the child. It implemented a whitelist of authorised phone numbers that the watch would both call and receive. The problem with that is that Caller IDs can be spoofed. So as a proof-of-concept, I used crazycall.net to spoof the Caller ID to a test watch.

Using the data from the API, an attacker could get both the child’s and a parent’s phone number, and spoof a call to the watch. As shown below, the child would think that it was their Dad that was calling. Would a child do what they were asked if a call came in like this?

Yeah, that's not creepy at all.

Of course like so many IOT devices, MiSafes' child-tracking smartwatches, which have been on the market in since 2015, are made by a Chinese company that had no interest responding to inquiries by security researchers. And being sold at around £9 ($11.50) per pop, there's certainly no incentive for its makers to suddenly start dramatically improving their security and privacy standards. It's another reason why efforts to standardize the inclusion of security and privacy problems in product reviews is something we all need to get behind, since it's abundantly clear legislation and regulation alone can't really address the problem.

Much has been written at this point about the problems with various "notice and takedown" policies, including in the DMCA. Much of the problems arise from the DMCA's requirement that service providers "expeditiously" remove infringing material upon notice, which naturally leads to platforms erring on the side of removal versus taking a hard -- and manual -- look at the material in question to see if it's really infringing. This results in all kinds of takedowns of speech that is not infringing, typically as a result of human error, a dispute over the actual ownership of rights, a lack of recognizing fair use, or, perhaps most often, an automated system for sending DMCAs simply screwing up.

But another weakness in the notice and takedown policy is in how much power it places in the hands of trolls and bad actors to simply fuck with people. This can be seen in action in the case of one SoundCloud troll getting all kinds of music taken down by pretending to be a rights holder.

Multiple bass music artists have alleged that their tracks have been removed from SoundCloud for wrongful copyright claims. Working under an account by the name "Dr Egg," an unknown user reportedly made copyright violation claims against multiple artists, which these artists are claiming resulting in the removals. In the SoundCloud platform, uploads can be taken down for copyright violations if SoundCloud receives an email making a claim against the track. A copyright violation occurs when someone uses a sample or part of a song that was already copyrighted by another artist or company. Currently, it only takes one claim to have a track removed and it may be reinstated if the claim is proven false.

According to reply emails from SoundCloud to the artists in question, "Dr Egg" used email addresses that pointed to Moonboy (moonboycreator@outlook.com) and Too Vain(toovain@outlook.com) to make these strikes. The user appears to have falsified Moonboy's (Jaime Madsen) signature and used his name on the copyright infringement claims. Moonboy made a video on Twitter to speak out against the fraud.

That the policy can be weaponized for nihilistic mayhem in this way at all is a clear signal that changes need to be made. That this doesn't happen constantly is not a defense of the policy. Good internet policy is not that which can be easily subverted by impersonating another person, because that happens all the time on the internet. And, when coupled with platforms being incentivized only in the direction of quick takedown of art and speech, that causes a massive speech issue that would make the founding fathers go into a rage.

In this case, SoundCloud did manage to get the uploads in question restored.

A spokesperson on behalf of SoundCloud has responded to EDM.com with the following statement:

"Our takedown notification process is designed to respect copyright, and it is our policy to review all infringement claims per the guidelines outlined in our Help Center. Upon review, we have determined these copyright claims are not valid, and are happy to report we’ve reinstated all affected content."

Which is all well and good, but we still have a problem. And I'm pretty sure the impetus for that problem can be found in the very first line of SoundCloud's statement: "Our takedown notification process is designed to respect copyright...". You may notice that there is no mention of speech and art in the statement at all. This is, again, because all of the incentives in the DMCA's notice and takedown provisions push platforms to favor copyright over art -- which is anathema to the principles of free speech.

As we near the midpoint of Trump's presidential term, White House renovations continue, including the erection of a glass-walled enclosure for stone-throwing.

Ivanka Trump sent hundreds of emails last year to White House aides, Cabinet officials and her assistants using a personal account, many of them in violation of federal records rules, according to people familiar with a White House examination of her correspondence.

White House ethics officials learned of Trump’s repeated use of personal email when reviewing emails gathered last fall by five Cabinet agencies to respond to a public records lawsuit. That review revealed that throughout much of 2017, she often discussed or relayed official White House business using a private email account with a domain that she shares with her husband, Jared Kushner.

According to White House counsel, this was all a misunderstanding. Apparently, Ivanka Trump wasn't aware of the rules governing the discussion of official government business on private channels. This would only be excusable if her father hadn'tspent a great deal of time calling for Hillary Clinton to be locked up for the same behavior.

Given the (still!) ongoing excoriation of Clinton by Donald Trump, you'd think his administration would have tried to lead by example and make sure everyone was on official channels from day one. Instead, his admin team did the same thing Clinton did, minus the setup of a private server.

And there are a few differences between Ivanka Trump's personal email use and Clinton's. Some commenters will make this part of the post redundant as they seek to find something hypocritical in Techdirt's coverage of this story or simply demand it be known Ivanka's actions were far more acceptable than Clinton's. Nevertheless, here we go:

It appears no classified information made its way into her personal email account. She also did not set up her own server to handle all official communications. She is also now apparently using her official White House email account after being informed of the rules -- a corrective effort Hillary Clinton never made.

Since I'm sure this short post pointing out the hypocrisy of the Trump Administration will be viewed as biased, here's Techdirt's history on government officials and private email accounts:

Techdirt criticizes Hillary Clinton's use of a private email server

Techdirt criticizes James Comey's handling of the Clinton email investigation

Techdirt criticizes Jame Comey's reopening of the Clinton email investigation

Techdirt criticizes Chicago Mayor Rahm Emanuel's use of a private email account

Techdirt criticizes New York Governor Andrew Cuomo's use of a private email account

Techdirt criticizes former New York Mayor Mike Bloomberg's use of a private email account

Techdirt criticizes VP Mike Pence's use of a private email account

If a government official has used private email accounts for official business, Techdirt has criticized them. Ivanka Trump doesn't get a pass and neither does anyone on the other side of the gaping political divide. She may not have known the specifics governing official communications but the Trump Administration has no one to blame but itself for the black eye it's now sporting.

HER EMAILS was a major plank in Trump's election platform. His administration team could have prevented this but was too busy keeping their own communications off the record to straighten out Ivanka Trump.

Over the last few years, telecom giants have increasingly been trying to claim that pretty much any effort to hold them accountable for their terrible service (or anything else) is a violation of their First Amendment rights. Historically that hasn't gone so well. For example, courts generally laughed off ISP lawyer claims that net neutrality violated their free speech rights, quite correctly highlighting that ISPs are simply conduits to information, not acting as editors of available speech through their blocking or filtering of available information.

Charter Spectrum, the nation's second biggest cable operator, has been trying to embrace this argument a lot lately as it fights off state lawsuits for terrible service. It recently tried to use the First Amendment card again in a legal battle with Byron Allen's Entertainment Studios Networks (ESN), which recently accused Charter of violating the Civil Rights Act of 1866 by refusing to carry TV channels run by the African-American-owned ESN.

While Charter tried to have the suit dismissed by claiming that the First Amendment prohibits such claims because an ISP enjoys "editorial discretion," the ruling (pdf) by the U.S. Court of Appeals for the Ninth Circuit didn't agree. The court noted that while ISPs and cable companies do enjoy some First Amendment protection, it doesn't apply here, just like it didn't apply in the net neutrality fight:

"As part of its defense, Charter had told the court that by choosing which channels to carry, the company was engaging in a form of editorial discretion protected by the First Amendment. Therefore, it said, the court would have to use a stricter standard to evaluate Entertainment Studios’ claim of a legal violation — a standard that might result in the claim being rejected.

The Ninth Circuit said otherwise, saying that just because Charter engages in corporate speech when it selects which channels to carry does not “automatically” require the court to use the tougher standard.

As a result, the court is letting the case move forward. For its part, ESN's discrimination complaint alleges that its complaint is based on more than just having its channel withheld from the company's cable lineup:

"The opinion on Charter’s motion to dismiss also marks a victory for the 25-year-old programming firm founded by comedian Byron Allen, which bought the Weather Channel in March and accused Charter executives in court of hurling racist insults at Allen and other black Americans in numerous encounters. In one alleged instance, Charter chief executive Tom Rutledge called Allen, who is black, “boy” at an industry conference and advised him to change his behavior, according to court documents. In another alleged example, the court said, Charter’s senior executive in charge of programming, Allan Singer, approached a group of black protesters outside Charter’s offices to tell them to “get off of welfare."

Consumer groups like Public Knowledge were quick to applaud the ruling, happy to see another effort to "weaponize" the First Amendment shot down. The district court will now proceed to determining whether Charter did engage in racially discriminatory conduct.

"Holding us accountable for absolutely anything violates our free speech" rights was historically something telecom lobbyists often just throw at a wall in a bid to see if it sticks. But these efforts have escalated in the last few years. For example FCC staffers under Ajit Pai, at this point nearly indistinguishable from big telecom lobbying efforts, have even tried to claim that community-run broadband (an organic, voter-approved response to terrible service) is a threat to free speech, a charge there's absolutely zero supporting evidence for.

It's a legal argument giant ISPs have also embraced more recently in large part because they hope that new Justice Brett Kavanaugh, who bought into some of these arguments during previous net neutrality battles, will ultimately be a deciding vote should many of these battles wind their way to the Supreme Court. So far, however, these efforts haven't worked out all that well, and while that's not likely to change when the net neutrality court fight kicks off next February, it could be an important issue should that fight make its way to the highest court in the land.

The "right of first sale" still exists. Not that Apple's happy about it. Apple's no fan of right-to-repair laws either, preferring to keep its revenue streams nice and deep by forcing customers to get their repairs only from Apple-approved vendors, no matter what the law actually says.

So, yeah, you still have the right to resell your Apple products. You're just not going to do it in the largest marketplace in the United States. This CNBC article delivers the bad news like it's good news.

In a new agreement between tech giants Amazon and Apple, shoppers will soon see a selection of the latest Apple products on Amazon.com, Amazon told CNBC in statement.

The agreement means the latest Apple products like the iPhone XR, XS and XS Max will be available on Amazon.

Both companies issued statements about improving customer experiences, but nothing about this sounds like a better deal for consumers. It's a paywalled garden guarded by Apple and Amazon that will keep all but a select few resellers from participating. Being an Apple reseller/repairer is pay-to-play.

First, Apple has to be convinced you'll do more for it than it will do for you. Then you have to pay for the privilege of being allowed to exercise your first sale rights.

Independent shops pay Apple a fee in return for "authorized" status, which gets them exclusive access to Apple training and guidebooks and the ability to buy parts directly from Apple. But authorized repair shops are only "authorized" to do a select few repairs; if a customer comes in with other easily fixable problems, the repair shop must ship the phone to Apple.

This "improvement" of "customer experience" means more old Apple products will be headed for landfills than other people's homes. Jason Koebler of Motherboard interviewed John Bumstead -- a reseller who buys old MacBooks from recyclers and, until recently, sold the refurbs on Amazon. Bumstead was just informed he was no longer welcome at Amazon, thanks to the new deal with Apple.

Bumstead had a good thing going -- something that worked for him and the environment. But Amazon's refurb program -- as modified by Apple -- only wants to deal with people who have the capability to feed a bunch of money to Apple before reselling used devices.

Amazon currently has its own “certified” refurbisher program called “Amazon Renewed” that will be unaffected by the new deal with Apple. But the requirements to sell Apple products under that program are impossible to hit for any small business: They must prove to Amazon that they spend at least $2.5 million dollars every 90 days buying Apple products “directly from a national wireless carrier or retailer with over $5 billion in annual sales (Example: Verizon, AT&T, or Target) or the manufacturer (Apple.)” This means that only big companies with direct relationships with corporate giants can meet the requirements.

This doesn't do much for customers seeking affordable Apple products. Apple continues to set the literal gold standard with its phone and laptop pricing. Severely curtailing the options Amazon customers have for affordable devices doesn't sound like an "improved customer experience," but those are the empty words both companies are using to sell this.

Now, Apple and Amazon are free to handle refurb sales however they wish. There may be a "right to first sale" just like there's First Amendment speech protections, but the actions of private companies don't infringe on that right. They're free to de-platform anyone for almost any reason. You can resell your Apple stuff. You just can't do it here.

I'd say it isn't wise for Apple to take such an antagonistic stance against its customers, but its aggressively anti-consumer efforts haven't made much of a dent in customer goodwill. It may attract the occasional attention of regulators, but not often enough to result in a softened stance on resale or repair. The problem is Apple's actions make things worse for customers who have never purchased its products. Homogenizing marketplaces rarely results in better prices and its anti-right-to-repair efforts are funneling customers towards a select few outlets and preventing device owners from enjoying the privileges of ownership.

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Facebook's new transparency report is up, and the company has released a baker's dozens of National Security Letters along with it. Thanks to the USA Freedom Act, companies finally have a way to challenge the indefinite gag orders the government attaches to its demands for user info -- a process it deploys thousands of times a year without having to run anything by a judge.

NSLs are gifts the FBI gives itself. With these self-issued pieces of paper, the agency can demand internet platforms turn over info about targeted accounts. What it can actually demand is fairly limited, although there appears to be no limit to the number of accounts the FBI can target with a single NSL. Many of the NSLs in this batch [PDF] cleared for release ask for data on multiple Facebook and Instagram users.

Only one of the released NSLs still carries the pre-Freedom Act boilerplate: the one that demands tons of info the DOJ's own internal legal guidance says the FBI can't ask for. That NSL contains a long list of things the FBI chose to consider "phone billing records" before being steered back to reality by legislation and leaked documents.

• Subscriber name and related subscriber information

• Account number(s)

• Date the account opened or closed

• Physical and or postal addresses associated with the account

• Subscriber day/evening telephone numbers

• Screen names or other on-line names associated with the account

• All billing and method of payment related to the account including alternative billed numbers or calling cards

• All e-mail addresses associated with the account to include any and all of the above information for any secondary or additional e-mail addresses and/or user names identified by you as belonging to the targeted account in this letter

• Internet Protocol (IP) addresses assigned to this account and related e-mail accounts

• Uniform Resource Locator (URL) assigned to the account

• Plain old telephone(s) (POTS), ISDN circuit(s), Voice over internet protocol (VOIP), Cable modem service, Internet cable service, Digital Subscriber Line (DSL) asymmetrical/symmetrical relating to this account

• The names of any and all upstream and providers facilitating this account's communications

The post-USA Freedom Act NSLs all carry identical demands for user info, which is far more limited than what's contained in this 2014 artifact.

[N]ame, addresss, length of service, and electronic communications transactional records…

The reason we're even seeing these NSLs published can be tied directly to the Snowden leaks, which led to the modification of several secretive government programs and policies with the USA Freedom Act. While these modifications may have altered how the government demands data and communications, it hasn't really slowed the government's roll. As Zack Whittaker notes for TechCrunch, the government is demanding more from Facebook more often.

The U.S. government’s demands for customer data went up by 30 percent, to 42,466 total requests, Facebook said, affecting 70,528 accounts. The company said that more than half included a non-disclosure clause that prevented the company from informing the user.

[...]

For its latest reporting period, Facebook also said that the number of other national security orders more than doubled year-over-year…

If it's data you're seeking, you go to where the data is. A platform with a billion users is a good start, especially when Instagram adds another 600 million user accounts to the mix. While it's good to see the uptick in demands is matched with an uptick in warrants and other orders that require the input of a court, the continued use of NSLs to acquire user info is concerning. These subpoenas -- issued and approved by the agency demanding user data -- more resemble fishing licenses than legal documents, which explains their continued popularity among FBI agents.

Props to French President Emmanuel Macron, who had a busy week last week, what with the observance of the World War I armistice centennial, the Paris Peace Forum, the Internet Governance Forum (IGF), and various other related events. All drew attendees and attention from around the world to his capital city, and all required his participation in some significant way, including through the delivery of several speeches that each surely required substantial preparation to deliver so capably. Techdirt has already covered a few minor aspects of the IGF speech: the announcement that France would embed officials with Facebook, and reference to the "Paris Call." But in terms of the major substance of the speech, there are few compliments that can be paid.

At best it was the sort of speech that someone completely new to tech policy might have come up with. Someone who, upon finding an imperfect situation, presumes that they are the first to notice the issue. And then takes it upon themselves to heroically step in to address the problem, despite the fact that their proposed "solution" reflects an incomplete understanding of the matter.

There are a number of ways this incomplete understanding infected his speech and undermined the quality of his recommendation. There was, for instance, his erroneous declaration that the Internet today is too much about content distributors not enough about content creators. This declaration alone suggests a very poor understanding of all the myriad ways people all over the world use the Internet to create and then disseminate their expressive works themselves. In and of itself it calls into question whether his overall suggestion is capable of being adequately protective of all this expression.

Because it appears not, and not just because of this limited understanding of how the Internet is used. It also ignores the critical countervailing concerns that have long deemed his proposed "fix" to be an unacceptable one. Because the "cure" he proposed — greater regulation of the Internet — is a dangerous one that would destroy all that he purports to want to protect.

We were off to a bad start with his initial skewering of net neutrality, a topic slated to be dealt with head-on by EU regulators next year. To summarize his general view on the subject: sure, we don't want certain ideas to be marginalized. We should defend people's access to the Internet, he said, but not always. He interprets the term "neutrality" to mean that all ideas have to be treated equally, but, in his view, some ideas are more equal than others. And this is what so offends him: net neutrality allows those who do not share "our values" to spread their ideas too.

This appeal to "values" was a recurring reference that underpinned his speech. Thanks to the Internet, Macron said, we saw an upsurge in democracy (i.e. Tahrir Square). Now, however, he complained, the Internet is being deployed by fringe elements to work against those democratic values. As he put it, in the name of liberty we are allowing the enemies of liberty to speak, and this, Macron insisted, needs to end through the imposition of regulation on the Internet and its actors.

Of course it's not that the values he champions are bad: liberal democracy and personal liberty are certainly worth defending. And he's right to recognize that the Internet can be a valuable tool for advancing those values. He's also right to observe that some use the Internet to advance contrary values. But any autocrat can make the very same argument about how regulation of expressive technology is necessary to preserve a society's "values," and nearly all do.

There is nothing magical about any particular set of values that makes regulation designed to enforce them better than regulation designed to suppress them. Regulation that gives someone the power to decide which values are the good ones and which are the bad is regulation that gives someone the power to suppress any values, including the ones you prefer. Indeed, that's the very point of the very values he champions, to ensure that no one gets that power. You simply can't create that power and expect it not to be used badly.

At some level Macron understands this problem. In the same speech he lamented the autocratic approach of "China Cyberspace" as being a poor choice for the Internet's future, and yet that's exactly the future he invites as he calls for the Internet to be as tightly controlled by his preferred regulators as China would want it to be by its own.

But Macron fears that the only other choice to the regulatory solution he proposes is "California Cyberspace," where California-based companies instead are the de facto regulators of the Internet.

Again, though, Macron misapprehends the current situation, in at least two significant ways. First, part of his objection to the Internet being "regulated" by California companies is that he didn't vote for them, and thus he fears that he has no way to ensure that they act in a way that he considers sufficient to protect the values he prefers. But installing governments, even elected EU governments, as regulators of the Internet provides no guarantee that these values will be any better protected. France itself has members of the far right making increased inroads into government, as does Germany. The democratically-elected government in Poland is busy attacking its independent judiciary for not being nationalistic enough, while Hungary's is currently attempting to ban protest. Just the day before Macron told the world how poisonous nationalism is, and yet the regulation he prescribes would give nationalists in governments the tools to cement their alternative values.

The other significant misapprehension upon which his proposal is based is that "California Cyberspace" is a lawless zone. But not all law must say no; the laws that have allowed the Internet to thrive in California and beyond have been laws that have said yes to innovation and expression and worked to protect them from interference, including Section 230, the First Amendment, and even, to a degree, the DMCA. All of these sorts of legal structures are what enable the actual protection of all those very same liberty values Macron says he wants to foster.

But that's not the sort of regulatory approach Macron proposes. He wants one that will say no to technology — and, importantly, the expression facilitated by this technology — when he believes technology should say no to expression. In his mind this is a modest proposal, one that simply calls for regulation by international consensus via organizations like the IGF. He said this was to help transcend the "rifts" caused by different nations' regulatory approaches. But given that next year's IGF has been scheduled over Thanksgiving week, thereby shutting out many of the American participants who would prefer to observe one of the most significant holidays in the American calendar with their family, as is traditional, rather than on their own, working to save the Internet a continent away, it hardly seems like international pluralism is really high on the IGF agenda.

Instead it seems that the goal is to empower his own government with the ability to decide for the world what the Internet can be used for. While his call for this regulatory crackdown may be packaged up in language touting freedom, democracy, equality, and international cooperation, it is still the cry of the censor keen for the power to refuse others' expression.