One of the more annoying aspects of how the video game industry conducts its relationships with gaming journalists is the concept of embargos. The idea goes something like this: publishers will furnish journalists and/or game streamers with advanced copies of games, but include an embargo on any reporting, reviews, or streaming those games prior to a certain date. Sometimes that date is the release date of the game, so that there aren’t reports or displays of the game prior to it going up for sale. Sometimes the date is actually pushed out past the release date. Both are pretty naked attempts by publishers to not generate any potentially negative press before the public can spend gobs of money on a game they don’t know might suck out loud. It’s a crappy process and it would be better if everyone simply agreed to not accept advanced copies unless the embargo is lifted, but that has never happened.
But there can also be challenges with enforcing those embargoes. For instance: were you all aware that the planet is round? Crazy right? With that roundness comes another wild thing: time zones. And with time zones comes an infuriating practice of having different release windows for a new game based on those time zones. How does that create challenges with embargoes? Well, when you get a Twitch streamer temporarily banned with a copyright strike because they streamed a game that “hasn’t been released,” but it actually has been in New Zealand, that’s how.
Square Enix’s brand new RPG, Forspoken, is to be released on January 24, 2023, and streamers worldwide have been looking forward to trying it out on their streams. However, one creator from New Zealand by the moniker Gtamen has been handed a two-day ban by Twitch after a copyright strike.
The YouTuber has claimed that the game was legally out in his country when he streamed it on Twitch, that is January 24. Meaning that the copyright strike, which is still in effect at the time of writing, would be entirely unfair. Here’s a screenshot of the blurb that pops out when trying to access his channel.
The notice for the 48 hour ban very specifically indicated that the reason for the ban was for streaming an “unreleased video game under embargo.” Because of the way that time zones and the release windows for Forespoken were handled, though, the game was released in New Zealand. That country is basically the starting point for time zones, which means the game was released there before the vast majority of the rest of the globe. But it was released at the time of the stream.
Some folks made excuses for Square Enix by noting that the embargo was listed as lifting at 2pm GMT, which is based off of London’s time zone. And while that may be technically true, that means that a Japanese company is enforcing an embargo based on the time in London for a game that releases essentially first in New Zealand.
The post from the streamer sparked quite some reactions, with some claiming that the ban was legitimate, considering the embargo on Forspoken ends at 2 pm GMT on January 23. Meaning Gtamen technically did break the stipulations, however, he did retort by claiming that the game had been unlocked by the store and should, therefore, not be subject to the embargo.
And to put the finest point on this, the streamer in this case technically broke the embargo by roughly 12 hours, but received a 48 hour ban. That seems fairly silly, no?
So, we’ve written a few times about DoNotPay, the supposedly AI-powered “robot lawyer” that was initially designed to help you contest parking tickets but then expanded to helping (usefully) with a bunch of consumer annoyances, like cancelling accounts, obtaining owed refunds, and the like. But it’s also got some shadiness in its past, like the time it wanted to automate sharing of streaming account credential cookies. And, while there have long been pretty serious questions about what things you should trust it to do, a couple years ago the company raised a round of venture capital from such trustworthy investors as (checks notes) Sam Bankman-Fried, along with a16z, and DST Global, which has a bit of an interesting history.
Anyway, since then it has ramped up some of its attempts to generate publicity via very questionable stunts. Earlier this month it announced that its “AI lawyer” would represent clients in traffic court via an earbud, and then went even further by promising a very publicity-stuntalicious $1 million to any lawyer who would use its AI lawyer via an earbud to argue in front of the Supreme Court. Leaving aside that such tech isn’t allowed in the Supreme Court, at one point CEO Josh Browder said that they would effectively abuse the rules the court has in place for making courts “accessible” to get the ear buds in. Which is, really not great.
All of these publicity stunts brought with them some scrutiny. And, as we posted this week, Kathryn Tewson (who is one of the most astute legal commentators out there) decided to test out many of its “legal” services. She found them extremely lacking. And maybe that’s fine in low stakes situations like parking tickets or consumer refunds and complaints. But it could do real harm to people relying on the service for larger things. Personally, the fact that it seemed to be encouraging people to make questionable defamation threats seemed pretty problematic to me.
On Wednesday morning, Browder announced that the company was (1) ditching the plans to be used in court and (2) stepping back from some of those more harrowing legal jobs (coincidentally, the very ones that Kathryn had tested out). Of course, rather than admit that the company shouldn’t be doing those things and was not qualified to be doing them, Browder did the techbro equivalent of claiming that it was all a “distraction” with very little usage. Oh, and also, that state bars were threatening him with potential jail time for the courtroom antics:
I guess Browder didn’t trust his AI lawyer whispering in his AirPods to keep him out of jail for the unauthorized practice of law. And if he’s unwilling to eat his own dogfood that way, perhaps he shouldn’t be offering it to other people.
The “distraction” claim is not all that believable, honestly:
If they were a distraction, they were a self-created distraction, in which Browder used all this to generate publicity for his not-ready-for-prime-time “legal” services that people with real problems might have otherwise come to rely on.
I actually do think that there is some interesting ideas in the underlying concept behind this company. Using smarter tools to help automate the horrible processes that large companies and governments put people through to get them to give up and not exercise their rights is a good idea. But it feels like someone should sit Browder down and explain to him the value of actually delivering a good and useful product over hyping up something that can’t do what it promises.
I just wrote about Utah’s ridiculously silly plans to sue every social media company for being dangerous to children, in which I pointed out that the actual research doesn’t support the underlying argument at all. But I forgot that a few weeks ago, Seattle’s public school district actually filed just such a lawsuit, suing basically every large social media company for being a “public nuisance.” The 91-page complaint is bad. Seattle taxpayers should be furious that their taxes, which are supposed to be paying for educating their children, are, instead, going to lawyers to file a lawsuit so ridiculous that it’s entirely possible the lawyers get sanctioned.
The lawsuit was filed against a variety of entities and subsidiaries, but basically boils down to suing Meta (over Facebook, Instagram), Google (over YouTube), Snapchat, and TikTok. Most of the actual lawsuit reads like any one of the many, many moral panic articles you read about how “social media is bad for you,” with extremely cherry-picked facts that are not actually supported by the data. Indeed, one might argue that the complaint itself, filed by Seattle Public Schools lawyer Gregory Narver and the local Seattle law firm of Keller Rohrback, is chock full of the very sort of misinformation that they so quickly wish to blame the social media companies for spreading.
First: as we’ve detailed, the actual evidence that social media is harming children basically… does not exist. Over and over again studies show a near total lack of evidence. Indeed, as recent studies have shown, the vast majority of children get value from social media. There are plenty of moral paniciky pieces from adults freaked out about what “the kids these days” are doing, but little evidence to support any of it. Indeed, the parents often seem to be driven into a moral panic fury by… misinformation they (the adults) encountered on social media.
The school’s lawsuit reads like one giant aggregation of basically all of these moral panic stories. First, it notes that the kids these days, they use social media a lot. Which, well, duh. But, honestly, when you look at the details it suggests they’re mostly using them for entertainment, meaning that it hearkens back to previous moral panics about every new form of entertainment from books, to TV, to movies, etc. And, even then, none of this even looks that bad? The complaint argues that this chart is “alarming,” but if you asked kids about how much TV they watched a couple decades ago, I’m guessing it would be similar to what is currently noted about YouTube and TikTok (and note that others like Facebook/Instagram don’t seem to get that much use at all according to this chart, but are still being sued):
There’s a whole section claiming to show that “research has confirmed the harmful effects” of social media on youth, but that’s false. It’s literally misinformation. It cherry-picks a few studies, nearly all of which are by a single researcher, and ignores the piles upon piles of research suggesting otherwise. Hell, even the graphic above that it uses to show the “alarming” addition to social media is from Pew Research Center… the organization that just released a massive study about how social media has made life better for teens. Somehow, the Seattle Public Schools forgot to include that one. I wonder why?
Honestly, the best way to think about this lawsuit is that it is the Seattle Public School system publicly admitting that they’re terrible educators. While it’s clear that there are some kids who end up having problems exacerbated by social media, one of the best ways to deal with that is through good education. Teaching kids how to use social media properly, how to be a good digital citizen, how to have better media literacy for things they find on social media… these are all the kinds of things that a good school district builds into its curriculum.
This lawsuit is effectively the Seattle Public School system publicly stating “we’re terrible at our job, we have not prepared your kids for the real world, and therefore, we need to sue the media apps and services they use, because we failed in our job.” It’s not a good look. And, again, if I were a Seattle taxpayer — and especially if I were a Seattle taxpayer with kids in the Seattle public school district — I would be furious.
The complaint repeatedly points out that the various social media platforms have been marketed to kids, which, um, yes? That doesn’t make it against the law. While the lawsuit mentions COPPA, the law designed to protect kids, it’s not making a COPPA claim (which it can’t make anyway). Instead, it’s just a bunch of blind conjectures, leading to a laughably weak “public nuisance” claim.
Pursuant to RCW 7.48.010, an actionable nuisance is defined as, inter alia,
“whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the
free use of property, so as to essentially interfere with the comfortable enjoyment of the life and
property.”
Specifically, a “[n]uisance consists in unlawfully doing an act, or omitting to
perform a duty, which act or omission either annoys, injures or endangers the comfort, repose,
health or safety of others, offends decency . . . or in any way renders other persons insecure in
life, or in the use of property.”
Under Washington law, conduct that substantially and/or unreasonably interferes
with the Plaintiff’s use of its property is a nuisance even if it would otherwise be lawful.
Pursuant to RCW 7.48.130, “[a] public nuisance is one which affects equally the
rights of an entire community or neighborhood, although the extent of the damage may be
unequal.”
Defendants have created a mental health crisis in Seattle Public Schools, injuring
the public health and safety in Plaintiff’s community and interfering with the operations, use, and
enjoyment of the property of Seattle Public Schools
Employees and patrons, including students, of Seattle Public Schools have a right
to be free from conduct that endangers their health and safety. Yet Defendants have engaged in
conduct which endangers or injures the health and safety of the employees and students of
Seattle Public Schools by designing, marketing, and operating their respective social media
platforms for use by students in Seattle Public Schools and in a manner that substantially
interferes with the functions and operations of Seattle Public Schools and impacts the public
health, safety, and welfare of the Seattle Public Schools community
This reads just as any similar moral panic complaint would have read against older technologies. Imagine schools in the 1950s suing television or schools in the 1920s suing radios. Or schools in the 19th century suing book publishers for early pulp novels.
For what it’s worth, the school district also tries (and, frankly, fails) to take on Section 230 head on, claiming that it is “no shield.”
Plaintiff anticipates that Defendants will raise section 230 of the Communications
Decency Act, 47 U.S.C. § 230(c)(1), as a shield for their conduct. But section 230 is no shield for
Defendants’ own acts in designing, marketing, and operating social media platforms that are
harmful to youth.
….
Section 230 does not shield Defendants’ conduct because, among other
considerations: (1) Defendants are liable for their own affirmative conduct in recommending and
promoting harmful content to youth; (2) Defendants are liable for their own actions designing
and marketing their social media platforms in a way that causes harm; (3) Defendants are liable
for the content they create that causes harm; and (4) Defendants are liable for distributing,
delivering, and/or transmitting material that they know or have reason to know is harmful,
unlawful, and/or tortious.
Except that, as we and many others explained in our briefs in the Supreme Court’s Gonzalez case, that’s all nonsense. All of them are still attempting to hold companies liable for the speech of users. None of the actual complaints are about actions by the companies, but rather how they don’t like the fact that the expression of these sites users are (the school district misleadingly claims) harmful to the kids in their schools.
First, Plaintiff is not alleging Defendants are liable for what third-parties have
said on Defendants’ platforms but, rather, for Defendants’ own conduct. As described above,
Defendants affirmatively recommend and promote harmful content to youth, such as proanorexia and eating disorder content. Recommendation and promotion of damaging material is
not a traditional editorial function and seeking to hold Defendants liable for these actions is not
seeking to hold them liable as a publisher or speaker of third party-content.
Yes, but recommending and promoting content is 1st Amendment protected speech. They can’t be sued for that. And, it’s not the “recommendation” that they’re really claiming is harmful, but the speech that is being recommended which (again) is protected by Section 230.
Second, Plaintiff’s claims arise from Defendants’ status as designers and
marketers of dangerous social media platforms that have injured the health, comfort, and repose
of its community. The nature of Defendants’ platforms centers around Defendants’ use of
algorithms and other designs features that encourage users to spend the maximum amount of
time on their platforms—not on particular third party content.
One could just as reasonably argue that the harm actually arises from the Seattle Public School system’s apparently total inability to properly prepare the children in their care for modern communications and entertainment systems. This entire lawsuit seems like the school district foisting the blame for their own failings on a convenient scapegoat.
There’s a lot more nonsense in the lawsuit, but hopefully the court quickly recognizes how ridiculous this is and tosses it out. Of course, if the Supreme Court screws up everything with a bad ruling in the Gonzalez case, well, then this lawsuit should give everyone pretty clear warning of what’s to come: a whole slew of utterly vexatious, frivolous lawsuits against internet websites for any perceived “harm.”
The only real takeaways from this lawsuit should be (1) Seattle parents should be furious, (2) the Seattle Public School system seems to be admitting it’s terrible at preparing children for the real world, and (3) Section 230 remains hugely important in protecting websites against these kinds of frivolous SLAPP suits.
That’s what happened here in this case highlighted by Eric Goldman. In an extremely ill-advised move, plaintiff Chad Burmeister created a Facebook post in which he labeled himself as “First guy to storm the capital today” while attending a Washington, D.C. “Stop the Steal” rally on January 6, 2021. This isn’t something someone imagined happened. It did happen and its part of the court record. This is taken from federal court decision [PDF]:
So, there’s the post by Burmeister, declaring himself to be on the frontline of the upcoming assault on democracy. But when someone pointed this out, Burmeister got litigious. The genesis of this lawsuit is, of all places, the social media platform hardly anyone considers to be a social media platform. From the decision:
This defamation case is about a LinkedIn post in which Defendant Alan Saldich wrote that Plaintiff Chad Burmeister had “participated in the seditious takeover” of the Capitol on January 6, 2021. Plaintiff alleges that on January 7, 2021, Saldich, acting in his capacity as Chief Marketing Officer of Corelight, published the following:
Normally I’d stay away from political commentary on LinkedIn, but today I’d like to highlight the actions of a former colleague, Chad Burmeister . . . from Littleton, CO who participated in the seditious takeover of the capitol on Wednesday. I have severed my connection with him here, and encourage all who are connected with him to do the same. It’s disgraceful. If you want to watch the video, it’s part of this . . . .
Saldich included a link to an article featuring a video segment of Next with Kyle Clark (“Clark Report”) from local news station 9News. The article had an image of Plaintiff and a caption stating “Coloradan who claims to storm the [Capitol] building heads home.” In the video, 9News anchor Kyle Clark states that Plaintiff bragged about being the “First guy tostorm the capital [sic] today” in a selfie posted on Facebook, later changed to “Peaceful march tothe capital [sic].” A screenshot of the Facebook post appeared on the face ofSaldich’s LinkedIn post and in the video segment…
The screenshot is the one seen above. The news report is this one, which rebuts a local politician’s claims about Antifa raiding the Capitol with social media posts from non-Antifa Coloradans like the litigious Burmeister.
Burmeister felt harmed by his own speech. So, he naturally sued someone else.
Plaintiff alleges that the LinkedIn post damaged his reputation and career as a business owner, including causing a colleague to cancel a $250,000 order with Plaintiff’s company. He alleges that hundreds of users read the post and left “almost universally negative” comments, and that he has received anonymous death threats. Based on these allegations, Plaintiff brings state law claims for libel, trade libel, and false light invasion of privacy.
Burmeister alleged none of this had to do with what he posted but rather was exclusively due to someone else referring to something he had voluntarily posted to Facebook. It does not end well for the would-be insurrectionist, who has already lost his defamation suit against News9 for highlighting this post in its report on the January 6th attack.
The court says California’s anti-SLAPP law applies, even though the plaintiff is from Colorado. He chose to sue in a California court, which means local laws are valid. Since Burmeister cannot demonstrate (nor has he even argued otherwise) that Saldich’s statements addressed issues of public interest, the court only needs to examine one of the two prongs inherent to California’s anti-SLAPP law.
Burmeister claimed Saldich’s statement that he “participated” in the attack on the Capitol building is defamatory because he did not actually enter the building. The court points out that this isn’t the standard for defamation. The standard is what Saldich and others could infer from Burmeister’s post, which plainly stated he was hanging out with someone he claimed was the “first guy to storm” the Capitol.
The truth, by Plaintiff’s own admission, is that he attended the Stop the Steal Rally and publicly posted a photograph on Facebook with someone who claimed to be the “[f]irst guy to storm the capital [sic] today.” In the days leading up to January 6, he also publicly posted several references to a coming “rebellion” and “storm.” In context, the statement that he “participated” is a reasonable interpretation, whether or not Saldich’s post was technically accurate semantically. Contrary to Plaintiff’s assertion, Saldich did not accuse him of entering the Capitol Building or of being investigated for crimes. In fact, the Clark Report itself, which prompted Saldich’s post, includes Plaintiff’s statements that he did not enter the Capitol and did not break any laws.
At bottom, Plaintiff’s case is based on what amounts to an alleged misinterpretation of his own Facebook post: that it was not him who stormed the Capitol. That Plaintiff’s own social media post did not make this entirely clear, or did not explain what he meant by “storm,” is not grounds for a defamation suit. And even if interpreted correctly, his post could still reasonably be understood to mean, at minimum, that Plaintiff was proud to show the public that he was with the “[f]irst guy to storm the [Capitol].”
In short, the Court finds that the “sting” or “gist” of Saldich’s challenged statement was justifiable as substantially true.
Burmeister loses. And he’s not only out his own money for his own lawyers. He’s going to be paying for Saldich’s defense against this BS lawsuit. California’s anti-SLAPP applies, which means Saldich is fully within his rights as the prevailing party to demand Burmeister cover his legal fees. Burmeister has now lost three times — once to the TV station and twice to a former LinkedIn “buddy” (or whatever LinkedIn’s terminology is) who did nothing more than highlight a post Burmeister created while expressing his desire to distance himself from someone he no longer considered a colleague.
The Complete 2023 Tech Training Bundle has 11 courses to help you learn how to conduct various types of computer forensic investigations. Courses cover cyber security, social engineering, penetration testing, securing networks, and more. It’s on sale for $50.
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.
Utah, as a state, has a pretty long history of having terrible policy proposals regarding laws about the internet. And now it’s getting dumber. On Monday, the state’s Attorney General Sean Reyes and Governor Spencer Cox, hosted a very weird press conference. It was billed by them as an announcement about how Utah is suing all the social media companies for not “protecting kids.” Which is already pretty ridiculous. Even more ridiculous, is that Governor Cox’s audience eagerly announced that people should watch the livestream… on social media.
Even more ridiculous: I kept expecting them to announce the details of the actual lawsuit, but it turns out that they haven’t even hired lawyers, let alone planned out the lawsuit. The official announcement notes that they’re putting out a request for proposal to find the most ridiculous law firm possible to file the suit.
Specifics of any legal action are not being released at this time. A Request for Proposal (RFP) document will be submitted this week to prepare for hiring outside counsel to assist with any litigation that could soon occur.
Can I reply to the RFP with a document that just says: “this is not how any of this works, and it makes Utah look like a clueless, anti-tech, anti-innovation backwater?” Cox has actually been surprisingly good on internet issues in the past, and seemed like he understood this stuff, but this kind of nonsense grandstanding makes him look really bad.
Again, the actual evidence regarding social media and children is at best inconclusive, and more likely shows that most kids actually get real value out of it as a way to keep in touch with more people, and get more access to valuable, useful information and people. A big look at basically all of the research on the “harm” of social media on kids found… no evidence to support the narrative.
And looking at the actual research we see the same thing again and again. Oxford did a massive study, looking at over 12,000 kids, and found that social media had effectively zero impact on the health and well being of children. A few years ago, a study (again, looking at multiple studies) noted that the emerging consensus view was that social media didn’t harm kids.
Just recently, we covered a pretty massive Pew Research Center study that surveyed over 1,300 teenagers, and found that, not only was social media not causing harm, it appeared to be providing real value to many of them.
And, whether or not you trust Facebook’s own internal research, the leaked research that the company did on whether or not Facebook and Instagram made kids feel worse about themselves, found that on nearly all issues, it actually made them feel better about themselves:
So, just starting out, the entire premise of this lawsuit seems to be on a moral panic myth that is not supported by any actual evidence, which seems like a pretty dumb reason to file a lawsuit.
The reasons given in the announcement in Utah are the usual moral panic list of things that basically all teenagers face, and faced before the internet existed as well:
“Depression, eating disorders, suicide ideation, cutting, addictions, mass violence, cyberbullying, and other dangers among young people may be initiated or amplified by negative influences and traumatic experiences online through social media.
Except, it’s one thing to say that people using social media experience these things, because basically everyone is on social media these days. The real question is whether or not social media is somehow causing these things, and again, pretty much all of the actual studies say the answer is “no.” And, expecting anyone to be able to sort out which harms are caused by social media, let alone in a way that has legal liability, is ridiculous.
Also, many of these topics are way more complex than the simple analyses cover. We’ve talked before about the studies on eating disorders, for example. Multiple studies have shown that when social media tried to crack down on online discussions about eating disorders it actually made the problem worse, not better. That’s because the eating disorders aren’t caused by social media. The kids are dealing with them no matter what. So when the content is banned, kids find ways around the bans. They always do. And, in doing so, it made it more difficult for others to monitor those discussions, and it often destroyed more open communities where people were helping those who had eating disorders get the help they needed. So demands that websites “crack down” on such content are actually making things worse, and doing more harm to the kids than the websites were doing in the first place.
There’s evidence to suggest the same is true of suicide discussions as well.
All that is to say, this is complicated stuff, and a bunch of grandstanding politicians ignoring what the actual research says in order to generate misleading headlines for themselves are not helping. At all.
And that’s not even getting into what any possible lawsuit could claim. What legal violation is there here? The answer is that there’s none. It doesn’t mean that AG Reyes can’t hassle and annoy companies. But, there’s no actual legal, factual, or moral reason to do any of this. There are only bad reasons, based around Reyes and Cox wanting headlines playing off the moral panics of today.
To be clear: the Chinese government is a violent authoritarian mess, and making U.S. networks more resilient to Chinese attacks is an important thing. But U.S. telecom policy is bizarrely obsessed with China to the point where all other policies, especially any policies that might upset the nation’s powerful and entrenched telecom monopolies, are routinely put on the back burner.
Whether it’s our obsession with beating China to the “race to 5G,” or FCC Commissioner Brendan Carr’s obsession with banning a social media company he doesn’t even regulate, the FCC spends a lot of time obsessing about China… but literally no time talking about U.S. market failure caused by monopolies that have spent the last few decades dismantling market disruption and competition.
In fact, the Biden-controlled FCC is very similar to the Trump-controlled FCC on this front. A disproportionate amount of time is dedicated to hand wringing about China. Not because dealing with China is more important than every other policy issue the FCC addresses, but because talking tough about China is the politically safe choice for career politicians with future ambitions.
We are doing a lot—in fact, right now the agency is doing more to address network security than at any point in its history. It’s a strategy to deter, defend, and develop: deter bad actors, defend against untrusted vendors, and develop a market for trustworthy innovation. By doing this, we are working to help improve communications security at home and shine as an example for the rest of the world.
As far as speeches go, the speech is fine. Rosenworcel discusses working in much tighter coordination with intelligence and law enforcement to help secure U.S. networks. Which is, again, fine. But hyperventilating about China takes up the lion’s share of the agency’s time. And it’s often used as a shield to help distract the public and press from the U.S. government’s ongoing failures elsewhere.
For example, we’ve noted how Carr’s obsession with TikTok is a giant distraction from our ongoing failures on privacy legislation. And the fact the FCC has been an abject failure on consumer protection for going on 30 years. The U.S. broadband sector is dominated by predatory, politically powerful telecom monopolies that have similarly been abusing U.S. consumers for decades. For most of that time, telecom giants have effectively dictated the trajectory of nearly all FCC policies, and it shows.
You’d think the nation’s top telecom and media regulators would occasionally propose solutions to this problem, or occasionally acknowledge that monopolies exist. Not in the U.S., where Republican FCC Commissioners effectively side with the monopolies on any issue of note, and the Democratic Commissioners spend their time just… pretending that monopolization doesn’t exist.
Case in point: you’d be hard pressed to find a single instance during their tenure where Democratic FCC Commissioners Jessica Rosenworcel or Geoffrey Starks clearly acknowledge that monopolies are a major cause of the nation’s broadband problems. They’ll ambiguously complain about the “homework gap” or “digital divide,” but they’ll never directly criticize the companies actually responsible.
The FCC currently can’t do much of anything consumers want (like restoring net neutrality) because it lacks a functional voting majority. They lack a functioning voting majority because the telecom industry is waging a coordinated smear campaign against popular FCC nominee Gigi Sohn.
But despite Sohn having faced down a coordinated attack from industry for much of the last year, neither Rosenworcel or Sparks have provided a single instance of public defense of their future colleague. Then of course there’s Brendan Carr, who spends the lion’s share of his time on cable news proposing TikTok bans and pretending he cares about consumer privacy.
Crafting telecom policies to combat authoritarian security threats is good. But not at the cost of the agency’s consumer protection mission, which routinely sees a backseat because it’s a more treacherous road politically. And right now, our policy regulators have become a bit obsessive.
And… selective in what they discuss. The much hyped “race to 5G” wound up being more of a limp, as Chinese 5G is now not only far more widely available and faster than U.S. variants, but significantly less expensive (Chinese 5G plans can be had for as little as $10 a month). Some of that’s due to Chinese state control over the telecom sector, but some it’s courtesy of FCC policy failure (we didn’t stand up to monopolies, failed to make middle-band spectrum available, don’t protect consumers, etc.).
Even when the FCC takes action on China you’ll notice the solutions aren’t fully baked. TikTok bans do nothing, and the “race to 5G” was a notable dud. But the agency also made a big deal about ripping Chinese gear out of all U.S. networks, then flaked on helping smaller companies pay for it. So it’s not like obsessing over China is truly resulting in any remarkable or consistent policies.
The U.S. telecom sector is a picture perfect textbook example of the problems with natural monopolies and corruption, and how, when left unaddressed, both lead to sky-high prices, substandard service, spotty broadband, comically terrible customer service, and a parade of consumer and market harms.
Yet it often feels like regulators spend two-thirds of their time fixated on the other side of the planet when domestic markets are very much in need of some informed, courageous attention.
