Funniest/Most Insightful Comments Of The Week At Techdirt

from the virtual-gathering dept

This week, our first place winner on the insightful side comes from That One Guy in response to FOSTA supporters making an unsurprising pivot to killing off pornography:

Fetch me my fainting couch!

You know what would make finding actual exploitation a hell of a lot easier, as shown post-FOSTA? Not lumping any and all sexual content into the same bucket and making it so platforms have a very strong incentive to not see anything lest they be hit with massive fines, driving sexual content off of sites that are willing and eager to help law enforcement find actual victims and instead having that sort of content on sites that don't give a damn and/or are incentivized to look the other way.

There's some dark hypocrisy to be found in the fact that those decrying the victimization of a group of people are themselves using those victims as nothing more than props for their own ends, all because some people just can't stand the idea that naked bodies and sex exists.

In second place, it's Jeremy Lyman with thoughts on why the pandemic has led to a huge uptick in cord cutting:

You Only Need One Channel™

Nothing like being home 24/7 to make you realize that having 300 channels just means that you're paying for 300 things you don't want to watch.

For editor's choice on the insightful side, we've got a pair of comments about the Copyright Office. First up, it's MathFox pushing back on one commenter's suggestion that its staffers are being bribed, since the truth is likely far simpler:

I don't think the grunt-workers are bribed. They self-select (why else apply to the copyright office) and are keep hearing all that stories why copyright is good and their work protecting and expanding it is important. An institutional echo-chamber. And if you provide a report-writing team with data that supports a specific message it's easy to get the message in the report; especially when the writing team beliefs in the message too.

It could be that some in management pulled some strings when selecting the team and selecting the data infuenced by "external incentives" like personal friendships, previous or future employers or other lobbying.

Next, it's Anonymous Anonymous Coward talking about the office's attack on libraries:

Pay me, pay me, pay me

Yet another example of the Copyright Office being co-opted by the 'everything must be owned, and by owned we mean controlled and monetized on a per use basis' crowd (read one chapter tonight, another payment is due tomorrow for the next chapter).

This push for control is just another step on their way to a one way Internet where they 'control' all the content and want payment for even 'thinking' about their IP. You cannot create because we are the creators (by which we mean we control the creators ability to get their works out there) and we control all original thought. Culture, ha! It ain't culture unless we say it is and have proper income even if you are just singing to yourself in the shower.

The open Internet scares the hell out of them. Give them an inch and they will take ten miles. Now, how do we get the also co-opted congresscritters to see things from our side, rather than theirs.

Over on the funny side, both of the winners come in response to the aforementioned uptick in cord cutting, and anonymous first place comment comes in response to Jeremy Lyman's winning insightful comment:

Or, if you're lucky, 299.

In second place, it's justok questioning our post title that described it as "the worst quarter ever" for cord-cutting:

Error in title

Should be: Covid-19 Just Triggered The Best Quarter Ever For Cable TV 'Cord Cutting'

For editor's choice on the funny side, we start out with Bloof and a reaction to the spate of op-eds claiming the internet only works because of the death of net neutrality:

I for one refuse to believe that Sam C. Cot of the WSJ is merely a PR shill for big telecom conglomerates! He's as trustworthy and neutral as NYT opinion writer Adam T. Telegraphson!

Finally, we've got Crafty Coyote deploying the perennial, practically obligatory, but still very apt response to copyright overreach (although that was tangential to this particular story):

But without the financial motivation that copyright provides, how will grandmas all over the world be properly motivated to post pictures of their little angels online? It's a 95-year monopoly for 95-year old people

That's all for this week, folks!

One Week Left To Get CIA: Collect It All For 25% Off

from the indoor-activities dept

Get 25% off your copy of CIA: Collect It All with
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If you're running out of things to keep you entertained at home (and who isn't, at this point?) then don't forget that CIA: Collect It All, our recreation of a real CIA analyst training game discovered via the Freedom Of Information Act, is on sale for 25% off with the coupon code STAYINSIDE. The sale lasts until the end of the month, so there's just over a week left to get your copy!

CIA: Collect It All is a game for two or more players with over 150 cards representing global crises that must be dealt with, intelligence techniques for addressing them, and the unexpected twists and turns that reality throws at an analyst's best laid plans. It also comes with a set of variant rules that turn it into a storytelling game that generates tales of intrigue and spycraft.

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Filed Under: card game, cia, collect it all, sale

The Great Pizza Arbitrage Scheme Of 2020 Is Spotlighting The Strangeness Of Food Delivery Services

from the supply-and-gourmand dept

Food delivery services always felt a bit wonky to me. I'm usually not terribly old fashioned about most things, but I generally understood that some restaurants delivered and some did not and that that was mostly fine. Along came food delivery services to bring us food from places that didn't deliver and that was mostly fine, too. But lately it's starting to become clear that somewhere in the ecosystem of venture capitalist funding and food delivery services, something is broken. We'll explore the larger issues in a separate post, but one great example of how janky this is getting is how one pizzeria owner managed to make a nice profit by buying his own pizzas from DoorDash. Confused? Well, buckle up.

Yesterday, Ranjan Roy, a content strategist and writer, wrote about the latter in his newsletter The Margins; one of his friends who owns a few pizza restaurants suddenly got an influx of customers complaining about delivery when the restaurants didn’t offer delivery. “He realized that a delivery option had mysteriously appeared on their company’s Google Listing. The delivery option was created by Doordash,” Roy wrote.

Apparently, this is one way that DoorDash does customer acquisition — by bullying restaurants. But what’s funnier about Roy’s friend’s problem (and it was a real problem because of Yelp reviews and angry customers) is that DoorDash priced the pizzas incorrectly. “A pizza that he charged $24 for was listed as $16 by Doordash,” emphasis Roy’s. And then: “My third thought: Cue the Wall Street trader in me…..ARBITRAGE!!!!”

And so began the dumbest transaction plan in the modern history of business. The pizzeria owner placed some DoorDash orders, expecting that eventually DoorDash would catch on. It didn't. To date, even with journalists now asking the company direct questions, DoorDash hasn't commented as of the time of this writing. At $8 per pizza in pure profit, the owner went ahead and ordered an indeterminate, but more than 10, number of pizzas. It got fun enough as an experiment that eventually the owner just ordered pizza dough through DoorDash, alleviating the need to even turn on the ovens, at $75 in pure profit.

Are these huge numbers? No, except that when this sort of thing happens to the restaurant rather than the delivery service, the former operating under much smaller margins with real hard costs, it's a problem. Those problems mostly being what happens when DoorDash delivers crappy service that the customer thinks is from the restaurant as well as customers getting used to these very low prices when the owners of the business actually charge more for the product.

The answer isn’t clear because we’re very far from the old ways. By the magic of venture capital, some businesses don’t have to make money to survive. And that’s upended things for everyone. “Third-party delivery platforms, as they’ve been built, just seem like the wrong model, but instead of testing, failing, and evolving, they’ve been subsidized into market dominance,” as Roy puts it. “The more I learn about food delivery platforms, as they exist today, I wonder if we’ve managed to watch an entire industry evolve artificially and incorrectly.”

As Bloomberg put it last Halloween: “GrubHub Inc. just announced disappointing quarterly results and said that food delivery is only a means to an end, unlikely to ever be profitable on its own. The risk heading into 2020 is that the inevitable reckoning for the food-delivery businesses will spread to the broader restaurant industry.” And at the end of the first quarter of 2020, that looks more prescient than ever. According to its first quarter report, GrubHub, the only profitable restaurant delivery business, lost $33.4 million over the last 3 months. (In fairness: COVID-19.)

Yeah, but in other fairness, companies that cannot make a profit aren't supposed to survive in capitalist societies. That's sort of a cultural lodestone in our economy. And while venture capital can certainly prop up emerging businesses that otherwise would never launch into real profitability, it's worth considering whether the food delivery business has run out of runway.

On the question of why these food delivery service companies seem to almost universally lose money, more to come.

Filed Under: arbitrage, food delivery, pizza
Companies: doordash

Banks Get Payout From Equifax Hack While Consumers Still Wait For Compensation

from the performative-fluff dept

We've noted several times that the FTC's settlement over the Equifax hack that exposed the public data of 147 million Americans was little more than a performative joke. While much was made of the historic fine levied against the company, the FTC's settlement failed to provide impacted victims much of anything outside of a sad chuckle.

The agency originally promised that impacted users would be able to nab 10 years of free credit reporting or a $125 cash payout if users already subscribed to a credit reporting service. But it didn't take long for the government to backtrack, claiming it was surprised by the number of victims interested in modest compensation, while admitting the settlement failed to set aside enough money to pay even 248,000 of the hack's 147 million victims. Even the credit reporting was relatively useless given such offers have been doled out the last seventy times consumers were impacted by a company's shaky security and privacy standards.

While consumers didn't see their promised compensation, US banks are facing no such hurdles. The company this week agreed to shell out $5.5 million to thousands of banks and credit unions who say they were harmed by the targeted hack of Equifax customers. The full agreement with the banks also doles out an additional $25 million to help beef up security, with Equifax also covering the banks' administrative costs, attorney fees, and assorted expenses.

But while the banks are now covered, the actual victims of the hack attack remain lost in the bureaucratic mire:

"It’s been more than two-and-a-half years since the biz was thoroughly hacked, and just under a year since the $700m settlement was agreed, so it’s perhaps surprising that not a cent appears to been given to the people directly impacted by the cyber-break-in.

Even now, with a final settlement approved in December 2019 and a deadline to apply for the money of January 22, 2020 – four months ago – Equifax still apparently hasn’t sent out any checks and still hasn’t given a firm date for when it will do. Questions from The Register on the topic have gone unanswered."

That again falls on the back of the FTC and the original settlement, which received a lot of initial gushing press adoration for being "historic," but doesn't appear to have lived up to any of its original promises. After not providing enough money to live up to that $125 cash payout offer, victims were forced to jump through hoop after hoop to try and get the funds, which won't wind up being anywhere close to $125 whenever the checks do arrive. The entire process is now bogged down in the courts after victims fought for a more equitable settlement for the hack.

It's another example of how headline-grabbing fines usually tend to be performative. There's no genuine compensation coming for most victims of Equifax's lax security, and efforts to actually craft meaningful penalties for companies (like say, an actual US privacy law) remain bogged down in partisan bickering. As a result we see scandal after scandal, followed by pseudo-punitive tap dances where the actual victims are lucky to see a dime. Rinse, wash, repeat.

Filed Under: banks, ftc, hack, leaks, security, settlement
Companies: equifax

Why Content Moderation Codes Are More Guidelines Than Rules

from the and-that-will-change-without-cda-230 dept

Also, following on my last post: since the First Amendment protects site moderation and curation decisions, why all the calls to get rid of CDA 230’s content moderation immunity?

Having listened carefully and at length to the GOP Senators and law professors pitching this, the position seems to be a mix of bad faith soapboxing (“look at us take on these tech libs!”) and the idea that sites could be better held to account -- contractually, via their moderation codes -- if the immunity wasn’t there.

This is because the First Amendment doesn’t necessarily bar claims that various forms of “deplatforming” -- like taking down a piece of content, or suspending a user account -- violate a site’s Terms of Use, Acceptable Use Policy, or the like. That’s the power of CDA 230(c)(2): it lets sites be flexible, experiment, and treat their moderation policies more as guidelines than rules.

Putting aside the modesty of this argument (rallying cry: “let’s juice breach-of-contract lawsuits against tech companies”) and the irony of “conservatives” arguing for fuller employment of trial attorneys, I’ll make two observations:

First of all, giving people a slightly-easier way to sue over a given content moderation decision isn’t going to lead to sites implementing a “First Amendment standard.” Doing so -- which would entail allowing posts containing all manner of lies, propaganda, hate speech, and terrorist content — would make any such site choosing this route an utter cesspool.

Secondly, what sites WOULD do in response to losing immunity for content moderation decisions is adopt much more rigid content moderation policies. These policies would have less play in them, less room for exceptions, for change, for context.

Don’t like our content moderation decision? Too bad; it complies with our policy.

You want an exception? Sorry; we don’t make exceptions to the policy.

Why not? Because some asshole will sue us for doing that, that’s why not.

Have a nice day.

CDA 230’s content moderation immunity was intended to give online forums the freedom to curate content without worrying about this kind of claim. In this way, it operates somewhat like an anti-SLAPP law, by providing the means for quickly disposing of meritless claims.

Though unlike a strong anti-SLAPP law, CDA 230(c)(2) doesn’t require that those bringing such claims pay the defendant’s attorney fees.

Hey, now THERE’s an idea for an amendment to CDA 230 I could get behind!

Reposted from the Socially Awkward blog.

Filed Under: 1st amendment, anti-slapp, cda 230, content moderation, curation, free speech, guidelines, section 230, slapp, terms of service

Does The US Copyright Office Not Know That Copyright Policy's Main Stakeholders Are The Public?

from the how-is-this-possible? dept

More than four years ago, the Copyright Office kicked off a project to do a big "study" on Section 512 of the DMCA, better known as either the "notice-and-takedown" section of copyright law, or the "safe harbors" section for websites. The Office took comments, held a few, somewhat bizarre "roundtables" (that we participated in)... and then... silence. Years of silence. Until yesterday when it finally released the report. It's 250 pages and there's a lot in there -- and we're likely to have a few more posts on it as we dig into the details, but to kick it off, I wanted to highlight just how bizarre a report it is, in that the authors don't seem to realize or ever acknowledge that the purpose of copyright law (and even this section) is to create the best possible services for the public.

Instead, the report seems to frame the entire Section 512 debate as a battle between the legacy copyright industry and giant internet companies. From the executive summary:

In enacting section 512, Congress sought to create a balance between two goals. One is providing important legal certainty for OSPs, so that the internet ecosystem can flourish without the threat of the potentially devastating economic impact of liability for copyright infringement as a result of their users’ activity. The other is protecting the legitimate interests of authors and other rightsholders against the threat of rampant, low-barrier online infringement. Congress balanced these interests through a system where OSPs can enjoy limitations on copyright liability—known as “safe harbors”—in exchange for meeting certain conditions, while giving rightsholders an expeditious and extra-judicial method for addressing infringement of their works. Thus, for some types of OSPs, their safe harbors are conditioned on taking down infringing content expeditiously upon notification by a rightsholder.

In the twenty-plus years since section 512 went into effect, the question has often been asked whether the balance that Congress sought has been achieved, particularly in the light of the enormous changes that the internet has undergone. Indeed, that is the question that motivated the Study that led to the present Report.

But the entire framing of that premise is wrong on multiple levels. For proof, let's go back to the legislative record and the the Senate Judiciary Committee's report on why DMCA 512 was necessary, written by long term buddy to the recording industry, Senator Orin Hatch. (As a reminder, Senator Hatch was considered so in the tank for the recording industry that in Rob Reid's satirical sci-fi novel, Year Zero, about the recording industry, he jokes that Hatch is nicknamed "Senator Fido" for his willingness to do whatever the recording industry told him -- so not exactly a defender of the public). Yet, the report makes it abundantly clear that a major stakeholder of the DMCA is the "end-user" and that the DMCA needs to be careful not to be used to take down works that are legitimately placed online. From that report:

The Committee was acutely concerned that it provide all end-users--whether contracting with private or public sector online service providers--with appropriate procedural protections to ensure that material is not disabled without proper justification. The provisions in the bill balance the need for rapid response to potential infringement with the end-users legitimate interests in not having material removed without recourse.

The Copyright Office was told repeatedly both about this clear stakeholder and was given many, many examples of how the DMCA 512 has failed on that front. And, yet very little of that is reflected in the report. Instead, the report mainly focuses on large internet providers liking the safe harbors, and copyright holders wanting it to be worse... and then claims that since only one side is "upset" clearly that means things are out of balance.

Roughly speaking, many OSPs spoke of section 512 as being a success, enabling them to grow exponentially and serve the public without facing debilitating lawsuits. Rightsholders reported a markedly different perspective, noting grave concerns with the ability of individual creators to meaningfully use the section 512 system to address copyright infringement and the “whack-a-mole” problem of infringing content reappearing after being taken down. Based upon its own analysis of the present effectiveness of section 512, the Office has concluded that Congress’ original intended balance has been tilted askew.

It's like the public's interest has just been written right out of the law by the Copyright Office. And that's stunning. And it's also disappointing because our own comments (along with many others) to the Copyright Office highlighted the failing of the notice-and-takedown process in that it frequently censors non-infringing material.

Also, the "conclusion" that the "original intended balance has been tilted askew" also further misrepresents the entire history of the DMCA. Remember, there were two major sections to the DMCA: 512 (the part we're discussing here, which is the notice-and-takedown safe harbors) and 1201 (which is the digital locks/anti-circumvention parts). Part of the "negotiation" to get the DMCA passed (mainly between legacy copyright holders and telcos) was that these two sections were balanced against each other. That is "copyright guys get 1201 if we protect service providers with 512 safe harbors." Some of us already had trouble with how unbalanced a trade that was, but the really ridiculous thing here is to have the Copyright Office pretend that 512 alone was designed to be a "balance" between service providers and copyright holders (ignoring the massively unbalanced 1201).

This is like saying "I'll trade you a bucket of oranges for a watermelon" and then, after that trade is concluded, whining "how come you get all the oranges! That's unfair!"

There are many, many other problems with the report, and we'll likely be digging into those in the coming weeks, but the very fact that the report appears to write the public out of its stakeholder analysis (even ignoring the Constitutional underpinnings and the stated basis for the law) suggests that the entire analysis is very, very skewed.

People within the Copyright Office keep telling me that I'm being unfair to the hardworking team there. And, to be clear, I do think that they really do mean well and actually do want to do the right thing. But if they want to be taken seriously, to put out a report that is so off the rails from the very start, it becomes more and more difficult to take their analysis seriously.

Filed Under: 512, balance, copyright office, dmca, dmca 512, public, stakeholders

Newsweek Publishes Facts Optional, Wronger Than Wrong, Piece About Section 230

from the that's-not-how-it-works dept

It's getting absurd to have to do this every few weeks, but the media keeps publishing blatantly wrong things about Section 230 of the Communications Decency Act. You would think that after the NY Times had to roll back its own ridiculous headline blaming "hate speech" on the internet on Section 230, only to have to say "oops, actually, it's the 1st Amendment," that other publications would take the time to get things straight and recognize that nearly everything they're complaining about is actually the 1st Amendment, not Section 230. Section 230 merely protects the 1st Amendment, by making it easier to get out of SLAPPish lawsuits earlier in the process.

Yet, Newsweek apparently did not take note, and agreed to publish an op-ed by a group that was set up with former Republican Congressional staffers to deliberately push FUD and nonsense about successful internet companies called the "Internet Accountability Project" (which is not accountable for its own funding). IAP has been targeting Section 230 pretty much from day one, and this Newsweek op-ed is par for the course in that nearly everything it claims is wrong, misleading, or just ridiculous. First it describes a few examples of both Facebook and Google moderating potentially dangerous misinformation campaigns about COVID-19 and claims that this is some sort of evil censorship:

For speech, in particular, the consequences of tech's growing power have become increasingly plain. In April, Facebook began removing content promoting anti-lockdown events. From ABC News to Politico, it was reported that this was being done at the behest of state governments. By the evening, Facebook clarified that it would only be removing from its platform content pertaining to groups whose activities violated governments' social distancing guidance.

In other words, Facebook is not removing protest content that is unlawful—but rather, content that goes against state government "advisories." That is, guidance without the force of law.

On YouTube, owned by Google, a video of two emergency room doctors publicly questioning the official narrative about COVID-19 reportedly had over five million views before YouTube snatched it down, stating the video "violat[ed] our Community Guidelines, including content that explicitly disputes the efficacy of local healthy [

sic] authority recommended guidance on social distancing that may lead others to act against that guidance."

Note how this is framed -- as if removing disinformation or recommendations that will likely lead to people dying due to ignoring health advice regarding COVID-19 is somehow a bad thing. Meanwhile, of course, you have people at the other end of the political spectrum insisting (also incorrectly) that these platforms leave this kind of content up because of 230. So, which is it? Does 230 lead to platforms feeling comfortable leaving up dangerous nonsense or is it responsible for platforms taking down content?

This type of private company censorship is allowed because of Sec. 230—the part of the Communications Decency Act, passed by Congress in 1996, which provides Big Tech special legal treatment.

1. A private platform moderating nonsense is not censorship. 2. It's allowed because of the 1st Amendment. 3. It provides no special legal treatment to "big tech." Literally every single thing in this is outright false. Newsweek's fact checkers apparently are on vacation.

Sec. 230 was designed to allow platforms to remove "obscene, lewd, lascivious...or otherwise objectionable" content without being sued for doing so. But with the help of the courts, that targeted immunity privilege has been stretched to include, among other things, the enforcement of government-determined narratives against speech that would otherwise be constitutionally protected if it occurred outside these platforms and away from Sec. 230.

This is a neat little attempt to rewrite the law, the legislative history, and the judicial rulings on the law all in one shot. Section 230 was designed to enable the platforms to make their own decisions with regards to moderation, without facing legal liability for those choices. And, honestly, is IAP's position that encouraging people to ignore important health information should not be seen as "otherwise objectionable"? Because that sure would be fascinating. And whether or not the speech is "constitutionally protected" is meaningless. The limitations on regulating speech apply to the government, not a private company. Indeed, a regulatory regime that required the hosting of speech would raise its own constitutional questions -- which IAP refuses to acknowledge.

"For a private company to simply delete the promotion of protests it deems unacceptable is a remarkable expansion of its power over what was once a sacrosanct and constitutionally protected freedom," wrote one commentator recently. "Through these private companies...government officials can in effect restrict speech they are obligated to protect."

Notice that they say "one commenter" but don't note that it's a college student who apparently should go back and study the Constitution some more. A platform has every right to block the promotion of protests on its own platform. There are many other places that anyone who wants to protest can publish their protests, whether those are smart and useful protests, or dangerous lunacy (as the protests in question were).

The companies and their advocates say this type of moderation is necessary to ensure free speech. But what does it mean for free speech when the major communications platforms like Facebook, YouTube and Google align themselves with the government to deem certain speech, which would otherwise be constitutionally protected, too dangerous?

It means that every platform gets to choose. Some align themselves with government reports highlighting that the promotion of not social distancing might kill thousands of people. Some align themselves with ridiculous people who think that killing people and spreading a diseases is their god-given right. That's the nature of free-enterprise. I thought Republicans used to support that kinda thing? What happened?

Rhetorically, it's an odd turn, as the antidote to bad or misleading speech is actually more speech—the robust debate and engagement that shapes ideas, rebuts other ideas and reforms narratives. This is especially true in the sciences, whose entire history is an arc composed of overturning ideas once considered "settled."

It's true that the antidote to bad or misleading speech is more speech, but it doesn't mean that every platform must host that speech. They have other places they can speak, and they can (and have) build their own spaces as well.

The most sinister thing about these decisions, however, is that when it comes to deciding what COVID-19 information we get to see, Big Tech companies have now become a de facto arm of the state.

No. They haven't. Of course, if you get rid of CDA 230, then actually they might. Because then they may face liability for not pulling down enough content -- and if someone does something preternaturally stupid, like encouraging people to gather in large numbers without face masks and without social distancing in the midst of a deadly pandemic, then, you know, a platform without CDA 230 protections might face some amount of liability for the chaos that produces.

That's part of what's so ridiculously frustrating here. If they got what they "want" it would make what they claim is the problem significantly worse. Of course, the reality is they don't actually want to get rid of Section 230. They just want to cause trouble for Google because their funders hate that they've been out innovated by internet companies.

Far from private companies merely initiating their own content moderation, these platforms are now acting as enforcement wings for government-approved information campaigns. In Facebook's case, this means removing the ability of citizens to organize in a constitutionally protected activity—an activity that is not illegal, but is merely advised against.

Again, they're not. You want to know how I know? Because all of these platforms leave up tons of content that involves these kinds of protests and gatherings. Just because they pulled down some of the most ridiculous and most dangerous -- because they don't want people to fucking die -- does not mean that they are "enforcement wings for government-approved information campaigns." And again, without 230, if someone died because they went to one of these protests, how quickly do you think Facebook would get sued because it hosted the details of the protest?

Sec. 230—the sweetheart deal that allows tech to censor content without the same consequences as, say, the newspaper industry—is, at its root, a congressionally authorized tech industry subsidy. It has allowed the industry to grow from dorm rooms and garage basements to billion-dollar omnipresent mega corporations.

Section 230 was not a sweetheart deal, and it does not apply to just tech. Newspapers rely on Section 230 too. It is not a "subsidy" it's about the correct application of liability to avoid nonsense lawsuits (also, weren't Republicans historically against frivolous lawsuits and ambulance chasing? Without 230 you'd open up a huge rush of tort cases).

And in that regard, Sec. 230 is not unlike the host of other subsidies the government provides to various industries: expensing provisions given to manufacturers, the federal assistance we provide farmers to purchase crop insurance and so forth. These industries will tell you that these provisions are vital to their survival—and they might be right. But that hasn't prevented them from being routinely debated, updated or otherwise modified.

But it's not even remotely a subsidy. It's just making it clear who has the liability. That's it. That's all it is. And, again, the 1st amendment protects the activities that this article mistakenly thinks 230 protects. All 230 does is a procedural move to help identify who should be liable for what. That's it.

If COVID-19 has proven anything about Big Tech, it is that these companies have accumulated orders of magnitude more power than politicians could have imagined just a decade ago. That power has benefited us, but it has also threatened us. An intellectually honest assessment of its ramifications is now desperately needed.

And one thing you will never get from the Internet Accountability Project is even a sliver of "an intellectually honest assessment." It is a bad faith player, funded by bad faith companies, to do bad faith things -- like publishing this utter nonsense piece of pure fiction in a mainstream publication. Newsweek should not have taken the bait.

Oh, but let me save the final nonsense for last. Right beneath this post, Newsweek is advertising medical nonsense and miracle treatments.

Of course, Newsweek isn't liable for pushing people to that medical snake oil... because of Section 230's protections. Which it has now apparently decided it's okay to get rid of. Good one, Newsweek. Good one.

Filed Under: 1st amendment, cda 230, liability, section 230
Companies: facebook, google, internet accountability project

On The Same Day The FBI Claimed No Vendor Could Crack IPhones, Another Way To Crack IPhones Made The News

from the way-to-stay-ahead-of-the-news-cycle,-Chris dept

At the same time the FBI director was claiming the private sector (other than Apple) couldn't help agents break into encrypted iPhones, the private sector was once again demonstrating it could do exactly that. Chris Wray's remarks to the press centered less on the underwhelming news that the FBI had conclusively linked the Pensacola Air Base shooter to al Qaeda than on Apple's supposed unhelpfulness.

The FBI claimed it had found a way to access data on the shooter's phones, but provided no details on its method. Maybe agents brute forced a passcode. Maybe they just found a side door that allowed them to exfiltrate the data they were looking for. Whatever it was, it wasn't something provided by a vendor. In fact, Chris Wray went so far as to claim the media was misleading the public about the availability of encryption-breaking/bypassing tech.

We canvassed every partner, and every company, that might have had a solution to access these phones. None did, despite what some claimed in the media.

Within a few hours of this assertion by Wray, the media was again reporting on another tech solution for encrypted iPhones. Here's Olivia Solon for NBC News:

[A]nother tool, previously unknown to the public, doesn't have to crack the code that people use to unlock their phones. It just has to log the code as the user types it in.

Software called Hide UI, created by Grayshift, a company that makes iPhone-cracking devices for law enforcement, can track a suspect's passcode when it's entered into a phone, according to two people in law enforcement, who asked not to be named out of fear of violating non-disclosure agreements.

The software is deployed by existing GrayKey devices -- the same ones Grayshift claims can crack iPhone passcodes by installing a user agent to bypass Apple's lockout countdown. This would be the same software/hardware Chris Wray claims can't do any of these things, despite extensive reporting on claims the manufacturer itself makes.

After dropping the surreptitious tracker on the targeted phone, the phone is returned to the suspect in hopes that they'll input their passcode.

For example, a law enforcement official could tell the suspect they can call their lawyer or take some phone numbers off the device. Once the suspect has done this, even if they lock their phone again, Hide UI will have stored the passcode in a text file that can be extracted the next time the phone is plugged into the GrayKey device. Law enforcement can then use the passcode to unlock the phone and extract all the data stored on it.

The software also disables airplane mode and disables wiping of the device. A snapshot of the system is taken to track any attempted deletion of phone contents.

This seems to do all the things the FBI claims no one can actually do. Sure, it won't scale -- especially since it requires a fair bit of subterfuge on the part of investigators and relies on the trust of criminal suspects who might find it suspicious their seized phone has suddenly been returned to them. But no technique for bypassing encryption ever will. And none of them should.

Asking a suspect for the combination to a safe will only unlock that safe, not every safe seized during searches. Phones are as unique as the individuals carrying them. So are the circumstances surrounding the attempted searches. One size should not fit all and the encryption backdoors Chris Wray wants only ensure everyone -- criminal or not -- will be negatively affected by law enforcement's newly-greased wheel.

Then there's the secrecy surrounding this tech. The NDAs Grayshift force on law enforcement customers means judges, defendants, and defense lawyers aren't being told what's being used to open up phones and search their contents. We've spent years detailing the opacity shrouding the deployment of Stingray devices -- something that has allowed law enforcement to avoid having warrant requirements imposed on them. The same thing is happening here. There's a legal way to do this. But the secrecy imposed by the tech provider tends to provide the cover officers need to operate these unlawfully. Here's the best case scenario, followed immediately by the most likely scenario.

“Law enforcement use of this ‘agent’ keylogger feature can be legal, so long as the warrant the government gets to search and seize the device spells out that the investigators are permitted to use it,” said Riana Pfefferkorn, associate director of surveillance and cybersecurity at Stanford Law School’s Center for Internet and Society. “In general, I don't think that magistrate judges authorizing search warrants would expect that the government plans to implant malware on a device it has seized.”

There are solutions out there. And they're not legislative mandates compelling assistance breaking encryption or backdoors for law enforcement. There are ways to bypass or crack what Bill Barr and Chris Wray have decided to call "warrant-proof encryption." Pretending there isn't while using an investigation press conference as a grandstand for Apple bashing isn't moving the conversation forward. It's just giving everyone one more reason not to trust Bill Barr or Chris Wray.

Filed Under: chris wray, cracks, encryption, fbi, hide ui, iphone
Companies: apple, grayshift

New Study Tries, Fails, To Claim Community Broadband Is An Inevitable Boondoggle

from the sockpuppetry dept

For years a growing number of US towns and cities have been forced into the broadband business thanks to US telecom market failure. Frustrated by high prices, lack of competition, spotty coverage, and terrible customer service, some 750 US towns and cities have explored some kind of community broadband option. And while the telecom industry routinely likes to insist these efforts always end in disaster, that's never actually been true. While there certainly are bad business plans and bad leaders, studies routinely show that such services not only see the kind of customer satisfaction scores that are alien to large private ISPs, they frequently offer better service at lower, more transparent pricing than many private providers.

Undaunted, big ISPs like AT&T and Comcast have waged a multi-pronged, several decade attack on such efforts. One, by passing protectionist laws in roughly 20 cities either hamstringing or banning cities from building their own networks, often in cases where private ISPs refuse to expand service. Two, by funding economists, consultants, and think tankers (usually via proxy organizations) happy to try and claim that community broadband is always a taxpayer boondoggle -- unnecessary because private sector US broadband just that wonderful.

The latest example of the latter comes via the Taxpayer Protection Alliance, a nonprofit that insists its focus is "holding government accountable," but is routinely backed by telecom giants like AT&T, which, for obvious reasons, are eager to paint an inaccurate picture of what's actually happening. The group's latest study, "GON with the Wind: The Failed Promise of Government Owned Networks Across the Country," claims to take a look at 30 examples of community broadband networks, with the heavy implication that the majority of them have failed -- proving that community broadband is always bad and private sector broadband is always good:

"Supporters of taxpayer-funded broadband systems claim that governments (i.e. taxpayers) are needed to build these systems because the private sector simply will not. The truth is that broadband providers have spent more than $1.6 trillion since 1996 to build, upgrade, and maintain networks, resulting in a 71 percent growth in rural broadband. Internet infrastructure is in place to serve 98 percent of the country, primarily built by telecom companies. This inconvenient truth, however, has not deterred attempts to use taxpayer dollars to fund broadband boondoggles."

But the fact that private ISPs have invested a lot of money in US broadband networks isn't in dispute. There's certainly numerous parts of the country where the private sector sees something vaguely resembling healthy competition. But as US telcos give up on upgrading aging DSL lines, there's a massive swath of the country that sees a cable provider (Comcast) as their only option (aka a monopoly). Despite billions in subsidization of private ISPs, there are still 42 million Americans without access to any broadband whatsoever. Millions more can't afford expensive US service thanks to muted competition and regulatory capture, the depth of which is fairly obvious to most (especially rural) Americans.

Community broadband isn't a magical panacea, but it certainly has a role to play in shoring up coverage gaps and motivating an uncompetitive sector suffering from captured regulators. And while the TPA report makes sweeping claims about the inevitable failure of such models, their report doesn't actually prove that in the slightest. In fact, a closer examination by the Institute for Local Self Reliance (ILSR) (pdf) found that just 8 of the networks cited actually had financial issues of note:

"TPA chose 30 municipal networks to make its argument and can only accurately claim 8 out of 30 networks as failures. ILSR has previously dissected TPA’s work and found similar problems. Indeed, the fact that some municipal networks have struggled actually refutes another point frequently made in criticism of municipal networks — that they have unfair advantages. In reality, municipal networks have tended to operate in the most adverse environments, where the private sector saw little reason to invest sufficiently. They have generally succeeded despite multiple disadvantages."

Take a moment to notice that groups like the Taxpayer Protection Alliance routinely pearl clutch over community broadband, but usually have nothing to say about the $42 billion in tax cuts we recently threw at AT&T in exchange for layoffs and investment reductions. Or the countless billions we've thrown at AT&T, CenturyLink, Frontier, and Verizon over the years for fiber networks that (mysteriously!) always wind up half deployed. Somehow, taxpayer waste is only a problem when small towns and cities engage in it. Taxpayer waste on a larger, more industrialized scale is usually ignored. Why, exactly, do you think that is?

Groups like ILSR have long noted that community broadband is not a panacea; it's just another business model. Some are good, some aren't. These towns and cities aren't building these networks because it's fun or because there's nothing else that needs to be fixed locally. It's because giants like AT&T and Comcast enjoy potent monopolies across much of America, with little competitive incentive to expand or improve service in many markets. Fixing the problem is often difficult, expensive, and a political nightmare thanks to AT&T, Comcast, and Verizon legal, PR, and political opposition; that shouldn't be a surprise.

But several times now the TPA has been accused of simply ignoring data that proves the industry's thesis that these networks are inevitable failures. That appears to have happened again here, with the report even trying to insist that Chattanooga's EPB -- rated the best ISP in America by Consumer Reports just a few years back -- was somehow a failure, despite the fact that telecommunications portion of EPB’s debt has been entirely paid off, and the network is one of the most popular in America.

Similarly, while the report tries to frame community broadband as a mindless dash toward heavy taxpayer debt and disaster, it fails to note that towns and cities routinely back away from such options when they're utterly financially untenable, notes ILSR:

"Ironically, while TPA is attempting to discredit municipal networks, its own words consistently affirm that local leaders have made wise decisions with few exceptions. The introduction notes that Seattle commissioned a study in which it found the proposed plan would be too costly and risky. The city did not move forward with that plan. In other cases, TPA explicitly notes that local leaders considered a project only to wait until the feasibility improved over time. This experience is precisely why we trust local decision-makers rather than encouraging state legislatures to interfere with such complicated and intensely local decisions."

Large private ISPs, the beholden FCC, and a chorus of industry experts have long engaged in elaborate calisthenics to try and demonize community broadband networks as an inevitable, wasteful disaster. In reality they're usually not. Even if they were, there's an easy way to put these efforts to bed: start deploying faster, cheaper, better broadband to the countless pissed off communities that have been complaining about substandard private sector broadband for the better part of a generation. Don't want communities getting into the broadband business? Do a better job serving them with cheaper, faster, more widely available service.

Filed Under: broadband, competition, monopoly, municipal broadband

We Lose A Lot When Podcasts Go Closed Instead Of Open

from the bad-digital-citizenship dept

Just last week, Ben Thompson's excellent Stratechery site had a great post describing the important differences between open and free, specifically with regards to podcasts. The occasion was his decision to launch a paid-for, but still "open" podcast. And he explains how there are important differences (in particular) between "open and for-pay" vs. "closed and free." Open and for-pay means that it's not locked down, and can work on a variety of different setups and open platforms. The payment is part of the business model, but the openness gives the end-users more control and freedom. In the software world, you might talk about this as "free as in speech" rather than "free as in beer." The "free, but closed" model is one where you can get the products for free -- but they're locked in a proprietary system. Facebook is an example of free, but closed, for example.

Thompson was talking in particular about his own podcast (open, but paid) as compared to Spotify's podcast strategy (free, but closed). Last year, when Spotify purchased a bunch of podcast companies, we worried that it foretold the end of the open world of podcasting. You can get a Spotify account for free, but unlike most podcast apps, you can't get any podcast you want via Spotify. Spotify has to agree to host it, and as a podcast you have to "apply" (indeed, Techdirt's own podcast was initially rejected by Spotify, though has since been let in). That's a "closed, but free" setup. Most podcasts are both open and free -- published as open MP3 files, using an open RSS feed that any regular podcast app can grab.

Spotify, so far, hadn't done much to close off the podcasts that it had purchased, but perhaps that's changing. Earlier this week it was announced that one of (if not) the most popular podcasts in the world, Joe Rogan's, would now be moving exclusively to Spotify. News reports have said that Spotify paid over $100 million to get Rogan's podcast on board, while some have put the number closer to $200 million.

While it's totally understandable why Rogan would take that deal (who wouldn't?), it does remain a sad day for the concept of an open internet. When we lock up content into silos, we all lose out. The entire concept of podcasts came from the open nature of the internet -- combining MP3s and RSS to make it all work seamlessly and enabling anyone to just start broadcasting. The entire ecosystem came out of that, and putting it into silos and locking it up so that only one platform can control it is unfortunate. I'm sure it will get many people to move to Spotify's podcasting platform, though, and that means those that do offer open podcasting apps (most others) will suffer, because most people aren't going to want to use two different podcast apps.

Even if the initial economics make sense, it still should be seen as a sad day for the open internet that enabled podcasting to exist in the first place.

Filed Under: ben thompson, closed, joe rogan, open, podcasts
Companies: spotify