Ridiculous: Gov’t Contractor Copies Open Source 3D Printing Concept… And Patents It

Patents

from the locking-up-the-commons dept

We’ve been talking about the importance of patent quality, and one of the points made in our podcast discussion, was that many companies felt the unfortunate need to patent something just to avoid having someone else patent it later and create problems. One thing we didn’t really get to discuss about that is that this actually makes it ridiculously difficult for any project that wants to do something innovative and donate it to the world, without patents. Because someone else might just come along and patent it themselves.

That appears to be the situation that has now happened to Hangprinter. Hangprinter is a fascinating project to create an open source frameless 3D printing setup that literally hangs in the air and is able to build much larger things than a traditional 3D printer. From the beginning, the idea behind Hangprinter, from its creator, Torbjørn Ludvigsen, was to make it open source and freely available for anyone to make use of it.

And, of course, sooner or later, someone took advantage of that. UT-Battelle, a non-profit joint venture set up by the University of Tennessee and the Battelle Institute to operate the Oak Ridge National Laboratory, apparently decided to step in and basically patent the core ideas of the Hangprinter. Earlier this year, they were awarded US Patent 11,230,032 for a “cable-driven additive manufacturing system.”

Except that, as Ludvigsen points out, there is a ridiculous amount of prior art on basically everything in the UT-Battelle patent, not just from Hangprinter, but from some other projects as well. Ludvigsen walks step by step through how the patent drawings almost seem like they were drawn from public images of Hangprinter. For example, here is an image from 2017 of the creators working on Hangprinter:

And here is an image from the patent filed a year later:

Or, here was an image of the Hangprinter team building a tower with their Hangprinter, sent out in early 2017:

And here is an image in the patent of a printer building a structure (in the patent case, it looks like a replica of the Coliseum in Rome.

Either way, it’s pretty clearly the same basic thing. But now it’s under patent, even as the creators tried to make this open and free to the world.

The Hangprinter team has launched a GoFundMe to try to challenge the patent, but it’s an expensive process. As they note, this is an unfortunate turn of events:

With the patent in place, we’d have to pay license fees to a tiny minority, gatekeepers of the stolen vital technology. Expansion and further development of Hangprinters won’t happen unless the gatekeepers care to allow it. What should have become a bountiful forest instead becomes a single bonsai tree in a walled garden.

This is, yet again, the unfortunate result in a world where the default assumption is that every concept must be “owned” by someone, and where the idea of a public domain or commons is not even considered. Here we have people who tried to contribute something wonderful and useful to the world to make it a better place… and now they have to deal with this mess where a government contractor (even a non-profit one) has effectively locked up the commons and blocked further innovation unless the open source creators can scrounge together tens of thousands of dollars to fight it.

That’s not good for anyone.

Filed Under: 3d printing, commons, hangprinter, open source, patents, rep rap, torbjorn ludvigsen
Companies: ut-battelle

India’s Government Amps Up Facial Recognition Deployment, Claims The Only People Affected Are Criminals

(Mis)Uses of Technology

from the sun's-out,-faces-out dept

Prime Minister Nahendra Mohdi’s government has apparently peered over the Great Wall of China (to pedants: figuratively, of course) and liked what it was seeing. China is the world leader in pervasive surveillance — something the government uses to shield the government from criticism and to keep the people the government considers to be undesirable under the bootheel.

It would be inconceivable to believe at this point that this isn’t the aim of the Mohdi government. Since his election in 2014, Mohdi has been increasingly taking direct control of communications (mainly via laws targeting internet use) and ensuring no Indian citizen goes unsurveilled.

The Indian government is home to one of the largest biometric databases in the world, one that contains at least some information on most of the nation’s 1.2 billion residents. And it’s going to get bigger. Anyone stopped, detained, or arrested by Indian law enforcement is forced to submit iris/retina scans to the national database, under the theory this will “modernize policing” and “increase the conviction rate.”

The easiest way to expand this biometric collection is to allow cops to hassle as many people as humanly possible. Since “detainment” isn’t clearly defined, any interaction with law enforcement can lead to the harvesting of biometric details. And that’s being accelerated by the Indian government’s apparently unconditional embrace of facial recognition tech.

It’s an obvious abuse of police power. Agnee Ghosh’s article for Vice details a routine traffic stop that devolved into the forcible collection of the driver and passenger’s facial images. That the two people stopped were Muslim minorities adds to the impression these programs are being aggressively rolled out to monitor residents the government considers to be inherently suspicious.

It’s well known that facial recognition tech is less accurate when it deals with anything but white males. The adverse side effects of false positives and negatives don’t appear to matter much to India’s law enforcement agencies, which deploy the tech carelessly while comforting themselves with empty statements claiming the only people hurt by pervasive surveillance are criminals. Here’s more from the Vice article:

The Hyderabad city police department is known for employing facial recognition for a variety of objectives, including questionable cordon and search operations, profiling people for narcotics, and unlawful phone-searching activities. They claim that facial recognition technology has worked as a “deterrent” and helped them apprehend criminals.

“We don’t infringe upon the privacy of any individual, as we are not barging into anybody’s house to take pictures,” C.V. Anand, Hyderabad’s police commissioner, told Reuters in January. “The technology is being used only to keep surveillance on criminals or suspected criminals.”

The only possibly true statement here is that the tech has helped apprehend criminals. Every other assertion is bogus. It’s clear Indian law enforcement does not limit its surveillance to criminals and suspected criminals. And just because you haven’t “barged into anybody’s house” doesn’t mean the surveillance dragnet the Indian government oversees isn’t violating anyone’s rights.

Hyderabad’s surveillance is symptomatic of the state it’s located in. What’s been installed in the state of Telangana is downright dystopic. It is home to nearly 300,000 police-owned CCTV cameras — over 60% of the entire country’s total. It is also home to the largest number of facial recognition programs in any Indian state.

Everything collected by static cameras and questionable police activity feeds into a central database, which immediately belies the Hyderabad police official’s claim the surveillance programs only target suspected criminals.

In Telangana, there are numerous facial recognition datasets that are being integrated into a “smart governance program,” called Samagram, which gives the state government a full picture of every resident’s life, including their employment status and other personal information. The goal isn’t only to track down criminals, but to build up a ‘360 degree view’ of every single person.

Hundreds of thousands of cameras, combined with national and local biometric collection programs, have turned the supposed democracy into a police state. Not only is it pervasive, it’s patchwork. With no national guidelines, local agencies are allowed to collect and retain data with nearly zero restrictions. Centralized databases are overseen by states, with national surveillance programs layered over the top of the local level panopticons. It’s unclear where the responsibility lies when a (inevitable) data breach occurs and the lack of coherent oversight (or any indication government at any level has any interest in overseeing these programs) encourages abuse. Above all of this lie the statements of public officials, who directly contradict police statements about limiting surveillance to criminals when bragging about the tech they’re using.

It’s ugly and it’s only going to get worse. The national government backs a prime minister who appears to want to convert a democracy to an autocracy. The surveillance programs in use aren’t there for public safety. They’re just a very affordable form of oppression.

Filed Under: facial recognition, india, surveillance

Things Are Looking Up: Clearview Cuts Sales Staff, Dumps Chief Revenue Officer

Privacy

from the keep-withering,-clowns dept

Clearview has never had a great reputation. Its first appearance in the public eye — via a Kashmir Hill report for the New York Times — was inauspicious, to say the least. The company’s database was composed of data and photos scraped from thousands of websites. This image database — which has now passed 10 billion images — is packaged with Clearview’s facial recognition AI and sold to whoever wants to buy it: law enforcement agencies, app developers, human rights violators, retailers, etc.

After being sued in Illinois for violating the state’s privacy laws (and facing fines and fees around the world for similar violations), Clearview reached a settlement agreement in which it would suspend sales of its product to private entities in the United States. This does not, however, prevent it from selling to private companies contracted by government agencies, so Clearview still has some revenue options in the US.

But when your company arrives on the scene with its reputation already in tatters, there’s only so much you can do. The company could have made moves to rehabilitate its image, perhaps by ditching its scraped image database and focusing more on things like 1:1 facial recognition that does not rely on third party content to make the AI useful. Clearview has a solid AI that could be deployed responsibly, but has chosen to become the top pariah in a sketchy field full of questionable tech purveyors.

Clearview CEO Hoan Ton-That has frequently displayed a dismissive attitude toward the steady stream of criticism his company has faced. That dismissive attitude has likely contributed to actual dismissals as the company struggles to survive following several self-inflicted reputational wounds.

Clearview AI cut much of its sales staff this week and has parted ways with two of three executives hired about a year ago, according to people familiar with the matter and posts online, as the high-profile facial recognition startup grapples with litigation and difficult economic conditions.

[…]

The cuts included staff who worked with local law enforcement, LinkedIn profiles showed. 

The CEO is downplaying these developments, which appear to show a company unsure of what market it should be pursuing. Ton-That claims this is just normal business stuff being done to “better position” Clearview for “financial security.” But cutting sales staff and the head of revenue generation suggests, at best, a change in product focus is underway, shifting Clearview away from the law enforcement market it clearly desired to something a bit less problematic, like 1:1 security products for government agencies and contractors that have no access to the company’s 10-billion scraped image database that has generated so much negative press.

If so, that’s great. If it’s some deck chair reshuffling prior to insolvency, so be it. But if it’s Ton-That opening up positions to fill with people who will more aggressively pursue sales of its ethically odious, scraped-from-the-web product to whoever it can, we can only hope it will never find enough paying customers to keep the lights on.

Filed Under: facial recognition, privacy, surveillance
Companies: clearview

Bungie Unmasks One Of The ‘Does’ It Sued For Fraudulent YouTube Takedowns

Copyright

from the oops dept

Back in March of this year, we discussed a somewhat odd story involving a bunch of DMCA takedowns for YouTube videos that included fan-content mixed with Destiny 2 music or footage. DMCA takedowns aren’t themselves strange, but in this case the makers of the game, Bungie Inc., publicly stated that it was aware of the takedowns but insisted it wasn’t them or their enforcement partner, CSC. Some of Bungie’s own official content had also been hit with claims, bolstering its defense somewhat, though it certainly isn’t unheard of for official content to accidentally get DMCA’d. Further solidifying that this wasn’t actually Bungie or CSC, however, occurred when Bungie went ahead and filed a lawsuit against 10 John Does over all of this.

Well, at least one of those Does has now been unmasked, as YouTube assisted Bungie by providing his IP address. That would be Nicholas Minor, who goes as Lord Nazo on YouTube. Bungie has amended its lawsuit naming him specifically, though it is unclear if Bungie is accusing Minor of filing all of the fraudulent takedowns. Ironically, it appears that Minor took these actions after becoming angry that Bungie and CSC took down his YouTube videos that contained Destiny 2 game music.

Lord Nazo, real name Nicholas Minor, apparently sought revenge on the development studio after CSC Global, which works in conjunction with Bungie as a brand protector, issued a number of takedown notices to him for uploading the Destiny soundtracks to his channel. The videos were uploaded in December 2021, and removed by YouTube a month later.

As reported by The Game Post, Minor allegedly created two fake Gmail accounts under the pseudonyms Jeremy Wiland and Damien Reynolds, posing as employees of CSC. He then used the accounts to issue DMCA strikes against popular Destiny YouTubers such as My Name Is Byf and Promethean, and additionally against Bungie’s own YouTube channel.

More is alleged, including that Minor used those accounts to contact Bungie directly and threaten them somewhat vaguely. For its part, Bungie is asking for a whopping $7.6 million as a result of all of this. Based on the filing for the suit, Bungie looks like it knows what it’s talking about.

Now let’s discuss briefly how this will all get talked about. If Minor did what the complaint alleges, he’s likely to be in a heap of trouble. Bungie will look like a hero here, helped by the fact that its own stance on fan-created videos is fairly lenient.

But what few will talk about is a point that Bungie actually made at the outset of all of this: YouTube’s DMCA takedown process sucks and is absolutely begging to be abused. Minor may have been found out, assuming the complaint is correct, but how many times does that not happen? How many times, in the name of promiscuous enforcement of copyrights, have such fraudulent claims at a lower level never been given this attention? We see this all the time and nobody seems to want to do anything about it.

That’s the real problem here. A broken enforcement system that is ripe for abuse.

Filed Under: content id, copyright, copyright abuse, dmca, false takedowns, lord nazo, nicholas minor
Companies: bungie, youtube

US Marshal Indicted For Abusing Access To Cell Location Data To Run Personal Searches

Legal Issues

from the if-you-give-a-cop-a-passcode... dept

Give anyone access to tons of sensitive personal information and it’s bound to result in abuse. Give cops access to this data and abuse is guaranteed. Why? Because law enforcement officers — for reasons unfathomable to regular people — face far fewer consequences for violating internal policies and breaking laws.

Regular people get fired. Cops get wrist slaps and a few weeks of bad press. Abuse of sensitive law enforcement databases is so commonplace it’s just become more unremarkable noise generated by news cycles.

More than half of Minnesota’s law enforcement officers misused access to drivers license databases. That scandal managed to raise eyebrows for perhaps half a day back in 2013. MORE THAN HALF! More than 5,550 officers! And yet, it’s little more than a data point a decade later.

Why? Because it keeps happening and so very little is done in response. Twenty-five Denver PD officers were caught abusing access to sensitive law enforcement databases. Nearly every one of the officers received nothing more than a written reprimand, rather than the criminal penalties the same PD would inflict on regular people who unlawfully accessed sensitive information.

Every so often a cop receives a severe punishment. But these anomalies only highlight how common the abuse is. An Ohio cop was fired for using law enforcement tools to spy on ex-wives and their relatives. Two police officers in California were hit with criminal charges for using DMV and other government records to [rereads post] screen women they were interested in dating. A Michigan police officer did the same thing, resulting in an ultra-rare criminal conviction.

Here’s another anomaly… not in terms of abuse, which continues to be widespread, but that a law enforcement officer might be punished for misusing law enforcement databases. The DOJ is pursuing criminal charges against a US Marshal who abused access to cell location data to run searches on people for purely personal reasons.

Adrian Pena, 48, of Del Rio, Texas, made his initial appearance in federal court yesterday in the Western District of Texas.

According to court documents, Pena allegedly unlawfully used a law enforcement service operated by Securus Technologies Inc. (Securus) for personal reasons, including to obtain cell phone location information relating to multiple individuals with whom the defendant had personal relationships and their spouses. Pena obtained this information by uploading false and fraudulent documents to the Securus system and by certifying that those documents were official documents giving permission to obtain the relevant individuals’ cell phone location information. 

The indictment [PDF] also notes the US Marshal lied to the Inspector General’s investigators about his abuse, downplaying his unauthorized searches as nothing more than testing or demonstrations for others… like his wife.

The system Pena allegedly accessed is run by Securus, a company that has its own questionable history. In 2015, it was caught ignoring its own internal safeguards to capture privileged calls between prisoners and their legal reps. Nothing much happened to the company, due to its almost monopolistic stranglehold on prison phone services. That led to the company catching heat a few years later for providing law enforcement with unfettered access to cell location data harvested from nearly every cell phone user in the country.

That’s the database the US Marshal apparently had access to. And the system was easy to beat. According to the indictment, the database could be duped into providing access with nothing more than a blank Microsoft Word document.

Even though the system requires users to upload supporting documents justifying the searches, no one appears to be performing any verification of the uploaded docs. All Pena had to do was upload literally any document in a supported format and click a box stating that the submitted document was “official” and granted “permission to look up the phone number requested.”

To obtain location data relating to these individuals’ cellular telephones, PENA uploaded false and fraudulent documents to the Securus LBS platform, including blank pages, award certificates, a list of justifications for a merit promotion, letterhead templates, and other assorted documents.

Any document, one checkbox, and Pena was free to go.

Through this process, PENA repeatedly obtained cellular telephone location data relating to his personal associates and their relatives through misrepresentations and without the required official documentation or authorization. These queries were performed for personal and unofficial reasons and were not authorized by the United States Marshals Service, the Uvalde County Sheriff’s Office, or any other law enforcement agency or intelligence agency.

That’s it. That’s the “process.” As easy to bypass as age restrictions on a YouTube video. Just plug in some fake info and sally forth. Except it’s not a red band trailer being accessed, but sensitive location data, including the targeted phone’s current location.

Safeguards are supposed to do something. The ones Securus has in place do nothing. While it may be impossible for Securus employees to determine what is or isn’t actual justification for a search, a cursory examination of, I don’t know, a blank MS Word document should have made it obvious someone was cheating the system.

And if it’s wrong to expect Securus to second-guess uploads, law enforcement agencies should be more engaged in this process and ensuring — in as close to real-time as possible — that officers aren’t abusing the system. While it’s good this US Marshal’s actions were exposed, it didn’t happen until he had abused the system more nearly a dozen times. That sort of delayed reaction does very little to head off future abuse or ensure sensitive location data pertaining to millions of US cell phone users doesn’t become a plaything for law enforcement.

Filed Under: adrian pena, doj, location data, privacy, surveillance, us marshal
Companies: securus

Daily Deal: The 2022 Google Flutter And Solidity Development Bundle

Deals

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

The 2022 Google Flutter and Solidity Development Bundle has 7 courses to help you become a skilled developer of cross-platform apps. Courses cover Flutter, Solidity, Dart, and more. The bundle is on sale for $40.

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

Appeals Court: No, You Can’t Just Sue Twitter Because You’re Upset They Kicked Trump Off

Content Moderation

from the not-how-any-of-this-works dept

We’ve covered on here former President Donald Trump’s ridiculous lawsuit against Twitter for kicking him off the platform for violating its terms of service (a lawsuit that is not going well at all), but I had missed that some random person, Maria Rutenberg, had also sued Twitter for the same thing. No, not for kicking her off, but for kicking Trump off. She claimed (I am not joking) that it violated her 1st Amendment rights not to be able to respond to his tweets. I only wish I were joking. From the complaint:

This case is not about the free speech of Former President Trump – this case is about the free speech rights of Plaintiff Maria Rutenburg and millions of people around the country who have a First Amendment right to view, discuss, debate, comment, reply and respond to Former President Trump’s tweets.

As you might imagine, that case has also gone poorly. The district court quickly denied a request for a Temporary Restraining Order against Twitter (to force it to reinstate Trump), it then easily dismissed the case, pointing out that Twitter is not a state actor, and therefore could not violate her 1st Amendment rights.

In sum, Rutenburg has failed to demonstrate that Twitter is a state actor sufficient to trigger liability for an alleged deprivation of federal rights under Section 1983. Rutenburg conflates decisions finding that former President Trump’s usage of Twitter is a public forum, constraining his ability to summarily block critics, and impermissibly attempts to extend this underlying logic to Twitter. This fails where Twitter is not a state actor, and is not exercising any sovereign state authority. Rutenburg’s citations do not persuade, where such cases concern state actors, including elected state or local officials. Rutenburg otherwise fails to cite to a single case where a Court has found a private non-state actor liable under Section 1983 for alleged violations of constitutional rights in similar circumstances.

Undeterred by basic common sense, Rutenberg appealed the case to the 9th Circuit, where… it was also easily rejected because, once again (this time, with feeling), Twitter is not a state actor and cannot take away anyone’s 1st Amendment rights.

The district court properly dismissed Rutenburg’s First Amendment claim: She did not allege sufficient facts to infer that the defendants (collectively, “Twitter” or “the company”) engaged in state action when the company moderated or suspended the former President’s Twitter account. The First Amendment’s Free Speech Clause “prohibits the government—not a private party—from abridging speech.” Prager Univ. v. Google LLC, 951 F.3d 991, 996 (9th Cir. 2020) (citations omitted). Dismissal was proper because the complaint lacked “a cognizable legal theory” or “sufficient well-pleaded, nonconclusory factual allegation[s]” to state a plausible claim for relief. Beckington v. Am. Airlines, Inc., 926 F.3d 595, 604 (9th Cir. 2019) (internal quotation marks and citations omitted)

So, just to make it abundantly clear: we already knew that people who, themselves, have been removed from a private social media platform cannot get a court to reinstate them by claiming their 1st Amendment rights have been violated, but now we can also note, with pretty clear certainty, that you also can’t claim that a social media platform removing someone else (even someone you really, really like) violates your 1st Amendment rights.

Filed Under: 9th circuit, content moderation, donald trump, maria rutenberg, state action, state action doctrine
Companies: twitter

Much Like Cord Cutting Itself, Big Media Execs Think TikTok Is A Fad That Will Just Fade Away

Culture

from the meet-the-new-boss dept

For more than a decade, cable and broadcast executives brushed aside the threat of cable TV “cord cutting” (ditching traditional cable TV) as either a nonexistent threat or a temporary phenomenon. There were endless reports about how these users were poor and unimportant (they weren’t), or how the phenomenon would end once Millennials bought homes and starting procreating (it didn’t).

Now, traditional cable and media executives seem similarly ignorant about the threat that TikTok poses to their traditional video empires. Last year, advertisers indicated that TikTok users were spending 90 minutes a day on the free app, increasingly eating into traditional TV time. 90.3% of broadcast and cable networks saw notable audience decline between 2016 and 2021.

Much of that decline was thanks to a wide variety of streaming alternatives. But a lot of it was also thanks to YouTube and TikTok. As a recession comes and folks look to cut corners, traditional TV will again be among the first to take the pinch. According to Vox’s Peter Kafka, the traditional TV industry’s plan is… no plan at all:

So what is Big Media doing to counter or respond to TikTok’s threat? Nothing more than hope it’s a fad that goes away, from what I can tell. But I wanted to make sure I wasn’t missing anything, so I called around and heard … crickets. I triple-checked by asking Nathanson, who just dug deep into TikTok’s impact — did he know of any media companies doing anything interesting in response? His one-word, all-caps answer: “NOPE.”

Keep in mind that many media giants (Comcast NBC Universal, for example) can always recoup their losses by price gouging customers stuck on their monopolized broadband networks (83 million Americans live under a broadband monopoly). And as Kafka notes, at least the industry isn’t responding to this new threat by attempting to sue the hell out of it (as it did in the early YouTube era).

That said, TikTok is only just ramping up its ad business, and I’d imagine you’ll see a lot more smear campaigns against the company (see: this one from Facebook) as it begins to bruise more egos. At the same time, today’s hot trends can quickly become old news (see Netflix’s fall from grace), and there’s always new disruption waiting in the wings for traditional cable executives to be wholly unprepared for.

Filed Under: advertising, competition, disruption, innovation, streaming, tv, video
Companies: tiktok

Ed Sheeran Wins Legal Costs After ‘Shape Of You’ Verdict

Copyright

from the shape-up dept

The saga of Ed Sheeran and the copyright case over his Shape of You song may finally be coming to a close. The case, brought by Sami Chokri, was very thin, largely centering on a two-word refrain line repeated 3 times both Sheeran’s song and Chokri’s Oh Why. Sheeran prevailed, with the court stating that there was absolutely nothing to suggest that Sheeran was influenced, even subconsciously, by Chokri’s song. After the win, Sheeran noted publicly how dumb this all is and how dangerous the culture of settlement-seeking copyright lawsuits has become for the creative industries. It’s bad enough, apparently, that Sheeran has stated he now video records all creative sessions so that those videos can be used to defend against inevitable future suits.

So why are we back on this topic? Well, in this case at least, the court has continued to get things right. The final nail in the coffin of this whole episode is that Sheeran has now been awarded legal fees by the court, to be paid for by Chokri.

Ed Sheeran and his co-songwriters have been awarded more than £900,000 in legal costs after winning their high court copyright trial over the hit Shape of You earlier this year.

That would be the dollar equivalent of roughly $1.1 million. Chokri’s lawyers had argued that Sheeran’s team failed to provide certain documentation earlier in the trial and that, if they’d seen those documents sooner, Chokri’s legal team would have altered its entire strategy in the suit. The Judge’s rebuttal was fairly simple: you didn’t alter your approach one bit once you had seen those documents, so what are you talking about?

The judge dismissed arguments that the defendants would have changed their approach to the case if some documents and explanations about how Shape of You was written had been provided earlier.

Zacaroli said: “None of the disclosure or explanations, once provided to the defendants, caused them to alter their approach at all. Instead, they not only maintained their attack on Mr Sheeran but broadened it by asserting that he was a ‘magpie’ who habitually misappropriated song ideas from other writers.”

It’s vindication of a sort for Sheeran to be sure, but none of this changes just how consuming these lawsuits can be for an innocent creator, both in terms of time, money, and the costs on his mental state. He may get the legal fees back, but certainly not his time and mental energy.

Which is why this win still doesn’t change the fact that we have a copyright culture problem in many western nations at the moment.

Filed Under: copyright, ed sheeran, legal fees, sami chokri

The Worst Reason To Brush Off Content Moderation Concerns In Antitrust Bills: Eh, The Supreme Court May Destroy 230 Anyway, So It Shouldn’t Much Matter…

Policy

from the wait,-really? dept

We’ve been highlighting the one big problem with Amy Klobuchar’s AICOA antitrust bill being that it has a trojan horse to enable lawsuit challenges over content moderation — and that this is the main reason why Republicans are supporting it. Still, with a big push to get the bills over the finish line, Adam Conner and Eric Simpson at the Center for American Progress did a big analysis of AICOA and the related Open App Markets bill that has similar content moderation concerns, and decided to recommend both bills, brushing aside the concerns.

Most of the analysis is quite good. And I agree with them that some of the other concerns raised about these bills seems exaggerated at best. Also, I appreciate that, for the most part, they take criticism of the bill seriously and try to respond to it, rather than ignore it. However, I take issue with them brushing off the content moderation concerns. Most incredibly, they argue that because Florida and Texas are already trying to legislate content moderation bans, and the Supreme Court will eventually weigh in (more completely than it already has), that state AGs won’t bother to use AICOA’s provisions when they can use the even worse provisions they’re hoping the Supreme Court will approve:

Finally, recent laws passed by Texas and Florida limit content moderation on social media platforms. These laws are in various stages of litigation before two different circuit courts, and it is increasingly possible that the U.S. Supreme Court will address the issue of online content moderation in the near future. Should either of these laws be allowed to stand by the Supreme Court, it is certainly difficult to imagine a state attorney general choosing to use a provision in these antitrust laws for a purpose they were not intended for, instead of working with the state legislature for more direct changes and challenges to content moderation on social media platforms.

And, um, sure? Yes, if even worse bills are allowed to become law, then I guess AICOA is the least of our concerns around content moderation, but that hardly seems like a reason to endorse this bill.

Earlier in the paper, they also brush off concerns about the content moderation issue in AICOA because it doesn’t have a private right of action for individuals or companies to sue directly, but would have to convince a state Attorney General or the DOJ or the FTC to take up a case. They discuss this in a hypothetical involving Alex Jones trying to sue YouTube over being moderated (this is a strange choice, as there are much more on point concerns, such as the moderation of Parler…):

YouTube currently enjoys First Amendment protections to moderate its private platform as it sees fit, including by removing Jones. Should Jones wish to get around these protections by arguing terms-of-service enforcement discrimination that resulted in material harm to competition under the bill, he would first have to persuade the DOJ, FTC, or a state attorney general to take up his case, as there is no private right to action in American Innovation, and Open Apps Markets does not apply here. The government would then need to prove in federal court that YouTube did not merely apply its terms of service in banning Jones, but that it applied the terms of service in a discriminatory fashion among “similarly situated business users.” In other words, the complainant must prove that Jones was treated differently than other YouTube users similarly violating the terms. Further, it would need to show that discriminatory application of the terms of service resulted in material harm to competition in the marketplace. It is highly unlikely that such an effect could be shown, since YouTube earned revenue from Jones’ videos, and operations of competing platforms were not harmed by the ban.

I mean, all of that puts a ton of extremely undeserved faith in a variety of government officials and judges to not take on a politically motivated cause. And there is little reason at all to believe that would be the case.

As we’ve pointed out for many, many years now, State AGs have become extraordinarily political, and in some cases positively eager to abuse their power to take on a sketchy case for political grandstanding reasons. I mean, Texas’ AG Ken Paxton seems to relish abusing power to bring politically motivated cases against his foes. It seems like that should at least be called out?

And what happens if Trump or DeSantis wins in 2024. Does anyone really think that a DOJ or FTC, led by people handpicked by either of them, would choose not to use these powers against companies for moderating content in a manner they don’t like? I mean… that’s just naïve. During the Trump administration he made it quite clear that he believed the DOJ was his own personal enforcers and should be used against his political enemies. And even as Trump’s former Attorney General Bill Barr tries to rehabilitate his tainted image, remember that he led multiple politically motivated antitrust inquiries against Trump’s enemies.

Meanwhile, DeSantis has similarly made it clear that he has no qualms about retaliating against political enemies. And, by all indication, Trump and DeSantis both see the failure of Barr’s politically motivated investigations as a problem to be solved with even more toadying and aggressive law enforcement agents.

As for the claim by CAP that the courts will somehow throw this out, that’s increasingly unlikely as well. Remember, the 5th Circuit seemed willing to make a purely political decision in reinstating Texas’ content moderation law. And some members of the Supreme Court seem willing to go along with that. I guess that’s why CAP’s argument is basically “well, if the courts are going to be bad about this, they’ll be even worse,” but again, that hardly seems like a good reason to support this bill.

Filed Under: 1st amendment, aicoa, competition, content moderation, courts, state ags, supreme court