And Now The Copia Institute Tells The Fifth Circuit That Texas Doesn’t Get To Regulate The Internet Either

Content Moderation

from the deja-two-thirty dept

As Mike noted the other day, state after state has been playing “fuck around and find out” with all sorts of bills that fundamentally interfere with the First Amendment and Section 230. So far Florida has already wasted over $700k in taxpayer dollars trying to defend their indefensibly censorial law. And now Texas is setting fire to the public treasury as well, as it appeals the injunction of their stupid attempt to control what people can say on the Internet.

So last week the Copia Institute did again what we did when it was Florida that refused to take the judicial hint after its law was enjoined, and filed an amicus brief at the appeals court, this time at the Fifth Circuit. It is, in many ways, a similar brief as before, because when we file these briefs we file usually wearing two hats: as a longtime commenter on issues of tech policy (including free speech and platform liability), and as an entity that very much relies upon the constitutional and statutory rights that the First Amendment and Section 230 afford. The more people think that tech policy regulation is only about “Big Tech” and not about everyone else, including your friendly neighborhood tech news site, the more of a disaster any proposed regulation affecting the Internet will be.

The briefs did, of course, vary a little because there are some differences in the laws. Texas’s, for instance, moronic though it is in its own way, at least didn’t try to exempt businesses that also happen to own theme parks in its state. Florida’s law was also a little more focused on favoring certain media outlets on social media, whereas Texas was more preoccupied with favoring certain speakers, which made the specific mechanics of each law a little different but no less terrible in their application and inevitable impact on online speech. Because no matter how much either state claims its law is about furthering speech, the results of each law, if allowed to come into effect, will be the silencing of it, because these regulatory attacks on the constitutional (First Amendment) and statutory (Section 230) rights platforms depend on to facilitate others’ speech are simply not sustainable if we would like any platforms – big, small, or otherwise – to remain around to facilitate any of it.

And so that’s what we explained in our brief. First in general terms to address the fundamental (if not also willful) misunderstanding of how the First Amendment and Section 230 operate – misapprehensions of which having clearly informed the Texas legislature, as well as the attorney general’s defense of the bill – and then by using the Copia Institute as Exhibit A for how this law, if allowed to come into effect, would hurt us too, even though ostensibly we weren’t directly targeted by it. While it seems pretty obvious, both on the face of the bill and from the attorney general’s defense of it, that what Texas really wanted to achieve with its law was to outright be able to dictate what people could say on the Internet, the cataclysmic and speech-smothering reach of any of these efforts to regulate Internet platforms is often much broader than any crowing politician is prepared to admit.

And so we need to keep showing up in these cases to say so.

Filed Under: 1st amendment, content moderation, section 230, social media, texas

Depressing: Ed Sheeran Films Songwriting Sessions Due To All The Copyright Suits

Copyright

from the video-saved-the-radio-star dept

Ed Sheeran has made it onto Techdirt’s radar many, many times. What started as his reasonable views on how “piracy” actually kickstarted his career has unfortunately turned into several posts on how he’s been targeted himself or sticking up for others in copyright disputes. While Sheeran has settled such disputes out of court before, he recently successfully defended himself in court and then put out a fantastic statement on the problem copyright law is creating in hampering creativity. At the end of that statement, he said:

Me, Johnny, and Steve, are very grateful for all the support sent to us by fellow songwriters over the last few weeks. Hopefully, we can all get back to writing songs, rather than having to prove that we can write them. Thank you.

I kept that penultimate sentence bolded from the last post for a reason: Sheeran is apparently not willing to take the chance that the world will be more sane. Instead, in a move that feels more like PTSD from these lawsuits than anything reasonable, Sheeran now records all of his writing sessions on video in order to prove in future disputes how he came up with his songs and lyrics.

Speaking further on both claims, Sheeran adds, “I just film everything, everything’s on film and we’ve had claims come through and we go, ‘well here’s the footage and you can watch and you’ll see that there’s nothing there’.” He also revealed how he didn’t play Photograph for a long while following the first claim, stating it made him “feel dirty”, and that he personally regrets paying settlement after being advised to do so.

That’s right. Thanks to the ridiculous levels of copyright protection and entitlement due to ownership culture, one of the top recording artists in the world has to film his creative sessions just to help protect against future accusations of copyright infringement. One has to wonder aloud whether this practice of putting cameras in the room hampers the creative process. It sure would for me. Or change it at the very least.

Which means that the end result is that copyright may actually be tamping down the creative output of an artist in this case. You know, the exact opposite effect desired by the originators of copyright laws. Not to mention how completely depressing it is that Sheeran feels he has to do this.

Filed Under: copyright, ed sheeran, songwriting, surveillance

John Oliver Tries To Scare DC Into Doing Something About The Privacy Dumpster Fire That Is Adtech

Privacy

from the incompetent-by-design dept

We’ve noted for years that the adtech sector is a convoluted, unregulated hellscape, where consumer data is bought and sold with nothing remotely close to competent oversight. The end result is just about what you’d expect: a percussive parade of massive scandals in which location, financial, and other sensitive data is bought, sold, leaked, abused, hacked, and spread far and wide with little real recourse.

Despite this, the U.S. still hasn’t passed even a baseline privacy law for the Internet era. And while some folks will insist it’s because it’s too hard, the real reason is because there’s simply too much money being made; and wealth accumulation, if you hadn’t noticed in the United States, trumps all things.

Last week John Oliver did a fantastic bit explaining the (quite intentionally) complicated, ethics-optional mess that is adtech, with a specific focus on data brokers:

Oliver points out just some of the many scandals in the space (like that time Epsilon Data Management knowingly sold the data of 30 million elderly people to criminals who then scammed them repeatedly, or the time widely available cellular consumer location data was abused by stalkers).

But Oliver then does something entertaining: he reveals that his show directly approached data brokers and purchased the online behavior and location data of many people who are likely lawmakers working in or around the Capitol building. Oliver only makes a few vague nods to some of the questionable browsing activity he discovered, while hoping lawmakers are now motivated to do something about it:

“You might want to channel that worry into making sure that I can’t do anything,” he advised. “Sleep well!”

Again, I’d wager he may not have actually found much of anything about any specific lawmaker, but it’s an amusing feint all the same. And we desperately need something to motivate the entirety of DC, because what we’re doing now (inconsistent wrist slaps years after violations, fines that are a tiny fraction of the money made from the abuse — and, oh yeah, here’s some free credit reporting) isn’t working.

Again, if we actually cared about this stuff, it wouldn’t be that difficult to fix.

A fairly basic Internet privacy law, combined with actually funding and staffing regulators at the FTC, would go a long way toward addressing the issue. But we don’t do that. Again, not because it would be all that difficult or expensive (even though adtech is overly complicated by design to try and dodge oversight), but because the cash trough of consumer data monetization is just too lucrative.

Attempting to rein in just the telecom sector or just the airline sector is one thing (and you may have noticed we can’t even do that). But when you target the online consumer data space you’re going up against a massive coalition of industries with bottomless lobbying budgets, including “big tech,” telecom, software, health care, marketing, and more. All of which like things just the way they are: broken and hugely profitable.

What I still think will happen is eventually there will be a data scandal too massive and problematic to ignore, featuring a lot of very powerful and influential people. Likely a scandal that puts human lives at risk in some way. Only then will DC wake up to the perils of letting the adtech market run amok, and even then my faith in DC competently crafting helpful solutions in response remains shaky at best.

Filed Under: adtech, behavioral data, blackmail, congress, consumers, data brokers, ftc, hacking, hbo, john oliver, location data, privacy, privacy scandals

Former Hertz Employee Says Company Is Outsourcing Its Collection Efforts To Law Enforcement

Legal Issues

from the raising-profit-margins-by-getting-the-public-to-foot-the-bill dept

Rental car company Hertz has put the “hurt” back in, um, “Hertz.” The company recently declared itself bankrupt, something that presumably only referred to its balance sheet.

But Hertz has more problems. In 2021 (the same year Hertz “emerged” from bankruptcy), the company was sued by a man who could have been cleared of murder charges if only the company has been interested in finding his rental receipt. It took the company three years to produce the records clearing Herbert Alford, but that came at the tail end of Alford’s five years behind bars.

More recently, the company has been sued for falsely reporting rental vehicle thefts — something that has led to false charges, wrongful imprisonment, and a class action lawsuit. Hertz’s best practices when it comes to suspected theft are apparently the worst. Hundreds of plaintiffs claim Hertz doesn’t do much in terms of verification, apparently preferring law enforcement handle its due diligence for it. Unfortunately, turning this over to law enforcement means people lose their freedoms. And, if the practice continues, people are going to lose their lives.

Bogus stolen vehicle reports lead to guns out traffic stops by law enforcement. Once the guns are out, it’s up to the driver to ensure they don’t get shot. That’s not always going to work out and Hertz is lucky it’s not fielding wrongful death suits. But that luck isn’t going to hold forever. Sooner or later, the utterly imaginable will happen and Hertz will be somewhat responsible for the dead body lying near an officer who mistook confusion for resistance.

Hertz claims in court this inability to properly research alleged thefts only affects a very small percentage of its customers. But that still means 3,500-8,000 customers are wrongly accused of theft every year. Thousands of false reports are resulting in dozens of cases where people have lost their jobs, their freedom (at least temporarily), and their ability to live a normal life despite never having stolen a car from Hertz.

It gets worse. A former Hertz employee handed a scoop to cable news network News Nation, informing journalists there that the company has decided the public should foot the bill for its collection/repo efforts.

Daniel Stokes worked for Hertz for 11 years from 1996 till 2007 and was a branch and city manager in charge of 24 different Hertz locations.

“Being a city manager and knowing what the processes were and learning more about what actually happens to the people, quite honestly, it pissed me off that knowing that it was still going on,” Stokes told NewsNation investigative reporter Rich McHugh.

Stokes believes the way Hertz is managing this current process is wrong.

“I don’t see how it’s legal,” Stokes said.

He says Hertz should not be involving police in most of these cases, but a collections company, instead.

In cases where customers have rented a car and not returned it on the due date, “Hertz is actually using the police department as a repo company and the court system as a collection company,” Stokes said. “All of these supposed embezzlement by thefts are collection issues. They’re not actual thefts.”

As a private company, Hertz is free to pursue alleged theft however it wants to. But that freedom to pursue ends where its bottom line meets the public dollar. A private company should not be using law enforcement as its proxy collection effort, especially when Hertz is often wrong about its theft allegations. This offloads the cost and potentially deadly outcomes to non-customers, who are forced to not only pay for enforcement efforts triggered by Hertz’s theft reports, but officers who may be sued for actions they’ve taken in response to possibly bogus reports.

According to the whistleblower, Hertz’s rental system lags behind its theft-reporting system. Even if a car has been returned after it was due and all additional charges paid, the car is handed over to a new renter prior to the car being cleared. That leads to more false theft reports, this time targeting a new renter who has returned a vehicle late or otherwise raised flags in the rental system.

Hertz has yet to respond to these allegations. That’s unsurprising, considering it’s currently being sued for doing exactly the sort of thing alleged by the whistleblower. To be clear, there has been no independent verification of the claims made by the former Hertz employee — one who was also allegedly falsely accused of theft and embezzlement by his employer over his use of a company-owned car while he was on medical leave.

If anything lends credence to this whistleblower’s claims, it’s the fact that no other car rental company is facing similar allegations. This indicates something is severely broken in Hertz’s rental system — one that allows rental agents to not only act on limited info, but to compel law enforcement to act on reports that appear to be lacking in actionable evidence.

Deliberately or inadvertently, Hertz has managed to leverage human nature to create a cottage industry of false accusations and bogus arrests. Hertz employees naturally want to limit theft of vehicles. And law enforcement officers are always looking for a good bust — one that rises about the normal street hassle that tends to define their day-to-day work. When it all comes together, innocent people who owe Hertz nothing and who haven’t actually broken any laws are becoming victims of a justice system that moves fastest when it’s working with nothing more than allegations and much more slowly when it comes to clearing people who are supposed to be presumed innocent.

As was noted above, Hertz is still involved in a lawsuit over its sketchy theft reporting practices. It has been ordered to turn over information about its theft reports to the court. Discovery continues. Whether or not there’s anything to the whistleblower’s allegations may soon become public record. But until then, we should remain skeptical of these claims, but not so skeptical we refuse to acknowledge the uncomfortable fact that no other rental car company in the nation is facing similar allegations from hundreds of renters.

Filed Under: law enforcement, police, police reports, stolen
Companies: hertz

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Deals

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

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Filed Under: daily deal

Desperately Pathetic Copyright Industry Lobbyists Flat Out Lie To Boost Support For The Dumb SMART Copyright Act

Copyright

from the lying-liars dept

We’ve talked about the many, many problems of the “SMART Copyright Act” from Senators Thom Tillis and Pat Leahy, and highlighted how a ton of public interest groups, academics, companies, and more have spoken out against the bill. Perhaps realizing that their dream of sneaking through legislation that will mandate upload filters is facing a slightly rockier road than they hoped, the various legacy copyright industry lobbyists all got together and put together their own letter in support of the bill. Except, the letter is not just wrong, it seems to deliberately lie to Senators Leahy and Tillis. The letter appears to have been put together by the Copyright Alliance, one of a number of groups organized by the largest legacy copyright providers, but they got all the usual suspects to sign on: the RIAA, the MPA, ASCAP, IFTA, NMPA, SGA, DGA, the Authors Guild and more.

The list is impressive and many of those lobbyists represent the organizations that exploit creative people of all kinds — but that’s no excuse for them to be creative with the facts. And yet, they are creatively lying to Tillis and Leahy.

Specifically, the second paragraph of the letter says the following:

The Strengthening Measures to Advance Rights Technologies (SMART) Copyright Act of 2022 addresses one of the major failures of the DMCA: the fact that, after nearly twenty years, not one “Standard Technical Measure” has been officially identified as Congress originally intended and expected to occur. We applaud your effort to breathe new life into what the Copyright Office recently identified as the “untapped potential” of STMs.

That link to “recently identified” is to the Copyright Office report that came out back in May of 2020. Back when that report first came out, we had raised many concerns about it, because it already made some pretty embarrassing mistakes. However, it’s important to note that even in a report as biased towards the legacy industry’s views as it was, the report does not support what the lobbyists are saying in this letter.

Did the Copyright Office suggest that Congress should breathe new life into the “untapped potential” of STMs? Nope. The Copyright Office (again, in a report that HEAVILY favors the legacy copyright industry’s narratives) does talk about untapped potential, but explicitly says that potential is not in regulations from Congress. Indeed, the report’s reference to “untapped” potential is explicitly for non-statutory approaches:

In addition to the foregoing list of approaches that Congress may wish to consider, the Copyright Office notes that there is untapped potential for additional approaches that would not require congressional intervention

Huh. So the Copyright Office notes there’s untapped potential that would not require congressional intervention, and the legacy copyright lobbyists run to Congress to say that supports congressional intervention. How… interesting.

Perhaps they meant somewhere else in the report that the Copyright Office referred to “untapped potential” of STMs? Well, “untapped potential” (which, again, these lobbyists used in quotes, suggesting a direct quotation of the Copyright Office) appears four times in the report. Not once is it referring to (1) standard technical measures, or (2) congressional action.

The second mention is talking about Section 512(j), which has to do with injunctions, and not 512(i) which is about STMs. So that can’t be it. The third mention of untapped potential is again explicitly in a section about non-statutory approaches (i.e., those that don’t involve congressional intervention):

In particular, the Office notes that there is some degree of untapped potential in various nonstatutory approaches to mitigating the limitations of section 512. There are hurdles to effectively implementing such measures, of course. And in many cases, a measure that relies upon voluntary cooperation between parties will primarily benefit those parties large enough to pose a credible litigation threat in the absence of such cooperation

Huh. So, again, they’re talking about “untapped potential” for voluntary cooperation and not a new law from Congress. And this section isn’t about STMs either. It’s about the notice-and-takedown process. So, that can’t be it. That’s now three out of four. Let’s look at the 4th one.

Finally, finally, this one actually is about standard technical measures. But, uh, oh:

The Office also recommends several non-statutory areas of untapped potential to increase the efficacy of the section 512 system and recommends additional stakeholder and government focus in the areas of education, voluntary cooperation, and the use of standard technical measures.

Ooops. The Copyright Office is talking about STMs here, but the “untapped potential” it discusses is not having Congress create a law, but rather non-statutory approaches, including “education” and “voluntary cooperation.”

So why, exactly, would the Copyright Alliance, with an assist from the RIAA, MPA, and all those other groups just flat out misrepresent what the Copyright Office said in a report that was already extraordinarily favorable to their interests?

Well, perhaps because they’ve spent decades misrepresenting things to Congress in order to get their way, so now it’s just baked in that they’ll say whatever they want to say and hope that no one will ever check.

But some of us are going to check.

Meanwhile, much of the rest of their letter is utter nonsense too.

Critics wrongly claim the bill introduces new technology mandates – a distortion of your legislation, which includes no standards or mandates. The SMART Copyright Act simply creates a process by which expert agencies can gather information, vet ideas through rigorous and transparent processes, and engage stakeholders in identifying antipiracy approaches that have proven safe, practical, and effective in the marketplace.

Critics wrongly claim that the bill introduces technology mandates, when all it really does is introduce the process by which we will get our technology mandates.

Indeed, the fact that these lobbyists are lying their way forward in support of this bill debunks this very paragraph as well. For all their talk of “rigorous and transparent processes,” the legacy copyright players, led by the likes of the Copyright Alliance, the RIAA, and the MPA, have zero compunction about lying and misrepresenting things to get their way. They want this “process” so they can get their upload filter mandate, and then brush off any legitimate concerns by saying “but the process was “rigorous and transparent.”

That’s wrong. The process is rigged and you have players, like the Copyright Alliance, that have zero compunction about misrepresenting things and pretending that others like the Copyright Office support their views. That fits right in with Tillis, who pretended that Creative Commons supported this bill when it did not, but it’s no way to craft laws that anyone will respect.

Filed Under: copyright, copyright office, misrepresentations, smart copyright act, standard technical measures, untapped potential
Companies: copyright alliance, mpa, riaa

U.S. Eases Off Telecom Sanctions That Could Encourage A Russian Splinternet

(Mis)Uses of Technology

from the first-do-no-harm dept

As Russia has faced a flood of sanctions for its brutal invasion of Ukraine, many telecom companies, like Lumen and Cogent, also stopped feeding and financing key Internet transit routes into the country. Other companies, like domain registrar Namecheap, made the choice to stop doing business with any current residents of Russia.

While severing Russia from the broader Internet may have felt good for those with a conscience, numerous organizations like The Internet Society warned the decision would likely only help Putin’s goal of a Russian “splinternet,” while potentially harming Russian independent media, human rights defenders, and anti-war protesters.

Putin for years has pushed to isolate Russian citizens from the broader Internet for two major reasons: it’s easier to spy on Russian citizens if they’re only using Russian telecom providers and Russian-based applications and services, and it’s easier to lie to the Russian public using propaganda if the only information they receive comes from Russian information sources.

While a little belated, the U.S. Treasury Department appears to have figured this out, and last week issued a new General License to exempt some communications services, software, hardware, and other connectivity-related technologies (web hosting, domain name registration services, email service companies) from U.S. sanctions against Russia.

The move was in response to a letter by numerous advocacy organizations urging such a license, and warning that broadly blocking Russian citizens from the broader Internet would likely have the reverse impact many had intended:

Access to the internet is essential to the protection of freedom of expression, access to information, and free association, and is increasingly recognized as a human right. Journalism and independent media depend on access to secure and reliable information technologies to document events inside contested areas, and to enable people to bypass state controls on information. Overly broad restrictions on the access of the Russian people to the internet would further isolate the embattled pro-democracy and anti-war activists, and impede the ability of NGOs, human rights groups, journalists, and attorneys inside and outside Russia to provide critical information to citizens about the current state of affairs and their rights. These actions would inadvertently speed up what the Kremlin has set out to achieve through its “sovereign internet” tools – a complete and total control of information space inside Russia.

Companies have every prerogative to make business decisions based on ethical considerations. Namecheap’s leadership informed me, for example, that the company has numerous employees in Ukraine and simply couldn’t, in good conscience, continue to do business in the country.

At the same time, there’s an absolute parade of experts warning that severing the Russian public from the Internet will only make them more susceptible to domestic surveillance and propaganda, something Putin was pushing for (with decidedly mixed success) long before the war began.

Filed Under: censorship, filters, internet, open internet, propaganda, russia, Russian splinternet