Perhaps it’s a result of spending many years now writing about intellectual property matters, but it is still shocking just how little understanding there is for how fair use works in conjunction with copyright law. It’s especially irritating when the folks who don’t understand it come from the government itself.
Which brings us to the Louisiana parole board. Interestingly, parole hearings are all publicly streamed in a live format, but the Parole Board does not make those videos available for viewing outside of the live stream. But one YouTuber, going by the name of Mandoo, records those streams and then adds commentary to them, with the stated purpose of making the system transparent and commenting on the way the justice system works. Mandoo was also handed 52 takedowns of videos on his channel after a local news organization used them in some of its own reporting on a specific parole hearing.
After our report aired though Mandoo said 52 of his uploaded parole board hearings received copyright claims and were deleted from his page, including Thomas Cisco’s hearing.
Mandoo said he had been recording the hearings for about a year without any issues.
“Maybe it has something to do with the controversy behind that [Cisco’s] hearing. Maybe it didn’t. I don’t know,” He said. Mandoo is said he’s concerned this could be a violation of his rights.
And I agree with him. This seems to be pretty squarely in the realm of fair use. These are public hearings that the government is streaming itself, meaning there is a serious degree of public interest here. The Parole Board, for its part, claims it doesn’t make video recordings available for download in order to “protect the victims” who testify in those hearings. Which, you know… doesn’t make any fucking sense. They’re not protected in the live stream.
Add to all of that a couple of things. First, the commentary and purpose of Mandoo’s videos adds to the claim of fair use. The fact the commentary centers on government action makes the case even clearer. And there are laws outside of fair use that make all of this legal in Louisiana anyway.
Scott Sternberg, who represents media organizations across Louisiana, said besides fair use Louisiana’s open meeting law makes clear the public has a right to record a meeting.
“In the day of cell phones where everybody’s got a camera and can take 4K or even 8K video, you know, people record stuff in public meetings all the time and yes it is perfectly legal to do so,” Sternberg said.
All of which is leading to Mandoo appealing the copyright claims and takedowns with YouTube. I expect those videos will be reinstated soon as they absolutely should be, perhaps even by the time this post is published.
A few months ago at a conference, I was somewhat surprised to hear from an academic whose views on antitrust are closely aligned with FTC chair Lina Khan complain to me that Khan appeared to be a disaster as an FTC Commissioner, noting that multiple FTC staffers had been complaining or heading for the exits. Since then, I’ve been surprised at how many others I’ve heard similar things from, including from both those who support Khan’s policy positions and those opposed (while it’s certainly less surprising to hear it from those who disagree with her, the fact that it was coming across the board seemed notable).
Khan, who was highly lauded for for her Yale Law Journal paper, Amazon’s Antitrust Paradox, was a bit of a surprise pick for an FTC Commissioner. She had a high profile, and clearly had very detailed ideas about how antitrust law should work, but her actual experience on these issues seemed a bit limited. Still, as a statement nomination, it perhaps made sense as Joe Biden saying “this is how I want to revive antitrust law” (though, if it was a statement pick, the fact that he’s then completely failed to get Gigi Sohn appointed to the FCC, suggests less clear strategy in these picks, and more of a haphazard process).
Even still, after she was approved by the Senate, there was an even bigger shock, that she was immediately appointed not just as one of five commissioners, but as the chair. This raised a bunch of eyebrows, as running the FTC is a pretty serious administrative task, one which she had little (if any?) relevant experience. Being a policy wonk is way different than running an agency. However, when people brought up this point, we were often brushed aside by others saying that the only people raising that were those opposed to her policy goals. Still, it strikes me as a fairly huge mistake that the chair position wasn’t given to someone else, with even the possibility of Khan growing into the role after gaining more experience in how the FTC functions.
We started to hear rumblings of problems within the FTC when Khan effectively muzzled FTC economists, which many worried was a sign that part of her leadership was politicizing the FTC, which generally has a pretty strong history of not being particularly political (obviously, there’s always some element of politics, but the FTC was generally seen as being above the fray, especially compared to some other agencies).
And, then… there have been some odd decisions. While it’s no surprise that the Khan FTC has brought antitrust lawsuits against Meta and Google (many people note the oddity that she has waited to go after Amazon, the subject of her paper, though rumors are that’s finally about to happen), the first few cases of the Khan FTC have been… almost astoundingly weak. And that’s especially if you support her policy goals and think that the big tech companies need to be smashed to pieces. Bringing terrible cases is a horrible way to go about that, and that became clear when a court basically laughed her first case against Meta out of court.
Some of the follow up cases have actually been stronger, which only puts an exclamation point on the idea that if the Biden administration wanted to make a big statement on antitrust, it should have put in a chair who actually understood how these suits would actually play out in court, so as to focus on marshaling the necessary resources for the strong cases, rather than creating chaos through weak cases.
And there’s perhaps no better example of a weak case than the one the FTC brought to stop Meta from acquiring Within, a VR exercise company. As we noted at the time, everything about that case was… strange. It appeared to be a clear case of an antitrust case being brought for punitive reasons, rather than any legitimate pro-competition rationale. The key point we made is that it seemed impossible to believe that the case would have been brought if Oculus wasn’t owned by Meta. In other words, Oculus buying Within wasn’t the issue, it was just a statement trying to say “Meta shouldn’t be allowed to acquire anyone any more.”
And that’s not how antitrust should work… or (more importantly) does work.
Earlier this month, the court rejected the FTC’s attempt to block the acquisition, and that was even after agreeing with the FTC’s market definition (a key part of any antitrust case) and even that there was “substantial concentration” in the market. But, in effect, the court basically said that Meta had perfectly reasonable market reasons for making the purchase, rather than anti-competitive ones, and thus it refused to block the acquisition, which was then completed soon after the court ruled.
This was all pretty embarrassing. Stretching how antitrust works may be an interesting idea, but to do so, you better bring really compelling cases. And this wasn’t that.
And, literally as I was working on this article, another shoe dropped, in that Republican FTC Commissioner Christine Wilson released a bombshell of a resignation letter in the WSJ, in which she comes pretty close to suggesting criminal behavior by Khan within the FTC. I can’t recall seeing a resignation letter quite like this one. Some will argue that it was motivated by policy differences between Wilson and Khan, but the letter seems to go way beyond that, and highlights managerial dysfunction, as well as Khan trying to suppress Wilson’s own views not for legitimate reasons, but to simply avoid having criticism be made public:
I also disagreed with my colleagues on federal ethics grounds. To facilitate transparency and accountability, I detailed my concerns in my dissent—but Ms. Khan’s allies ensured the public wouldn’t learn of them. Despite previous disclosures of analogous information, Commissioners Rebecca Slaughter and Alvaro Bedoya imposed heavy redactions on my dissent. Commission opinions commonly use redactions to prevent disclosure of confidential business information, but my opinion contained no such information. The redactions served no purpose but to protect Ms. Khan from embarrassment.
She also notes the strong belief that Khan should have recused herself from the Meta/Within issue, having previously publicly stated that Meta should be blocked from acquiring any new companies.
Consider the FTC’s challenge to Meta’s acquisition of Within, a virtual-reality gaming company. Before joining the FTC, Ms. Khan argued that Meta should be blocked from making any future acquisitions and wrote a report on the same issues as a congressional staffer. She would now sit as a purportedly impartial judge and decide whether Meta can acquire Within. Spurning due-process considerations and federal ethics obligations, my Democratic colleagues on the commission affirmed Ms. Khan’s decision not to recuse herself.
One could argue that these were both about policy differences, though that seems like a stretch, especially in an FTC that used to reveal Commissioner dissents without such redactions in the past. Also, given the result of this case and others, it sure ends up looking like being more public in dealing with Wilson’s objections and concerns, rather than sweeping them under the rug, might have resulted in a stronger case (or no case at all), rather than such a weak one that failed.
Furthermore, the whispers I’d been hearing about staffers becoming disgruntled are apparently backed up with some data:
I am not alone in harboring concerns about the honesty and integrity of Ms. Khan and her senior FTC leadership. Hundreds of FTC employees respond annually to the Federal Employee Viewpoint Survey. In 2020, the last year under Trump appointees, 87% of surveyed FTC employees agreed that senior agency officials maintain high standards of honesty and integrity. Today that share stands at 49%.
Many FTC staffers agree with Ms. Khan on antitrust policy, so these survey results don’t necessarily reflect disagreement with her ends. Instead, the data convey the staffers’ discomfort with her means, which involve dishonesty and subterfuge to pursue her agenda.
That’s… just not a good sign at all.
Finally, the closing paragraph certainly hints at even more egregious things to come out at some point in the future:
As an antitrust lawyer, I counseled clients to avoid trouble by knowing when to object and how to exit. When my clients attended trade association gatherings, I advised them to leave quickly if discussions with competitors took a wrong turn and raised alarm bells about price fixing or other illegal activity. Make a noisy exit—say, spill a pitcher of water—so that attendees remember that you objected and that you left. Although serving as an FTC commissioner has been the highest honor of my professional career, I must follow my own advice and resign in the face of continuing lawlessness. Consider this my noisy exit.
Yikes.
It really feels like much of this could have been avoided by focusing on bringing strong cases, while making the policy arguments for changing how antitrust works, without trying to take big swings on weak cases without the cover of congressional approval.
It’s possible that there will be some turnaround on this. As I noted, a few of the more recent cases have been stronger and appeared more well planned out. So, perhaps things are changing, and perhaps the legacy of the Khan FTC will shift by the end of her reign. But failures like the Meta/Within case, and now Wilson’s “noisy exit” (not to mention staff dissatisfaction with the agency) suggest a much bigger underlying issue in how the FTC currently operates.
And, if anything, that feels like a huge missed opportunity if the goal was to bring about real change, and create a much more competitive marketplace.
“Innocent until proven guilty” is the standard we claim to respect here in the United States. In reality, it’s anything but.
Arrested people have their faces splashed across news sites and mug shot aggregators, presented as nothing more than a face and a list of charges. Accused criminals are almost always discussed without the “accused” modifier. Juries and even some judges assume the accused person is guilty simply because they’re in court. After all, if they’d done nothing wrong, law enforcement officers wouldn’t have arrested them, right?
Accused criminals have a guaranteed right to legal representation. But few governments at any level feel this right should be respected. To far too many lawmakers, public funding for legal representation is considered a luxury — something that can be cut when times are tight and ignored when coffers are full. Legislators can do this because very few constituents care whether or not accused criminals have access to their constitutional rights.
Governments are occasionally reminded of the rights they’re ignoring. It takes a lawsuit to make this happen in most cases. The state of Utah was sued in 2016 for refusing to provide adequate funding for public defenders. In fact, at the time the lawsuit was filed, Utah provided exactly $0 in public defense funding. It left that up to cities and counties. And they didn’t feel like doing it either. Cited in the lawsuit was Washington County, which spent $2.8 million on prosecutors while allotting only $761,000 to public defenders.
Missouri — the state at the center of this lawsuit — is equally terrible. It was also sued in 2016 by a state’s public defenders after Governor Jay Nixon threatened to withhold nearly three-quarters of their funding. Not satisfied with simply waiting for the lawsuit to play out, public defender Michael Barrett engaged in a highly unusual (but completely legal) gambit: he issued a “Delegation of Representation,” designating the governor (a former prosecutor) as the counsel of record on one of Barrett’s cases.
Six years later, at least one part of Missouri’s inadequate public representation system is going to have to make some permanent changes. The decision [PDF] calls out the state’s refusal to provide adequate funding — something that has forced defendants to go up to a year without a lawyer and/or spend an indefinite time in jail because they have no representation for bail hearings. (via Courthouse News Service)
At the November, 2020 bench trial, evidence was adduced that, starting in 2017, multiple MSPD district defenders sought caseload relief, resulting in the creation of MSPD [Missouri State Public Defender] waiting lists in parts of the state. Some waiting lists were created informally by agreement with the presiding judge of the judicial circuit without a formal hearing or written order, and other waiting lists were by written order of the presiding judge after hearing. Once the waiting lists began, the number of defendants placed on the lists grew substantially. In November, 2019, there were more than 5,800 cases on MSPD waiting lists, involving 16 different MSPD district defender offices.
[…]
As of November, 2019, nearly 600 persons on the waiting lists had been waiting for counsel for over one year from the initial determination of indigency. Approximately 1,546 had been waiting for at least six months, 1,916 for at least five months, and 2,273 were waiting for at least four months.
The court says the right to representation (in both the state and US Constitutions) attaches almost immediately. Respecting the Sixth Amendment means defendants are entitled to be represented by a public defender at their initial appearance, where charges are read and bail requests are made. Without timely access to public defense, arrestees are often steamrolled by government prosecutors.
The named petitioners in this case provide examples of issues faced by defendants at bond hearings, and the mention of two will suffice. Petitioner Travis Herbert was on the MSPD waiting list for 147 days while incarcerated and charged with three felonies. While on the waiting list he attended seven bond hearings without counsel. A prosecutor appeared each time, and all bond reductions were denied until the sixth hearing, when he was released on his own recognizance. Petitioner Dakota Wilcox was on the MSPD waiting list for over five months while in custody charged with several felonies. At the end of the waiting period, an attorney through MSPD entered, and within two days obtained Mr. Wilcox’ release.
The state tried to get out of the lawsuit by doing stuff it should have been doing already: increasing public defender funding to whittle down the waiting list. The state’s 2022 budget added $3.6 million in funding for the MSPD, which resulted in the hiring of 53 more attorneys who brought the number of people on the waiting list down to zero. Problem solved, says the state. Not so fast, says the court.
[T]he issue of delaying appointment of counsel for an indigent defendant by placing the defendant on a waiting list is virtually certain to occur in the future. The waiting list is at zero, not because Respondents have renounced its use, but because the State is currently providing sufficient funding to avoid resorting to it. The General Assembly appropriates funds on a one-year basis. The history of providing defense counsel for indigent defendants in Missouri is replete with claims of inadequate resources for providing effective representation…
Section 600.063.3 (5), the statute relied upon by Respondents to maintain the waiting list, remains unamended, available to be utilized at the next MSPD funding shortfall to delay appointment of counsel for defendants charged by the State with a crime. Meanwhile, Respondents continue to assert that the practice of using the waiting list – even when it allows the State to delay for months or years furnishing an indigent person charged by the State with a crime – does not violate an indigent defendant’s right to counsel. The issues raised in the instant case involving the use of a waiting list are likely to recur.
The case isn’t moot. The state is in the wrong. The waiting list is unconstitutional, as is the law that allows it to happen. The state will actually have to continue to adequately fund its public defenders office now that its (unconstitutional) fallback plan has been eliminated. This will bring the state more in line with the Constitution(s) its employees have sworn to respect and nudge the balance of power in the criminal justice system slightly back towards the centerline.
I wrote last week about the bizarrely bad House Oversight hearing that was supposed to expose how Twitter, the deep state, and the, um “Biden Crime Family” conspired to suppress the NY Post’s story about Hunter Biden’s laptop. Of course, wishful thinking does not make facts, and we already know that story is totally false. The hearing not only reconfirmed that the GOP’s fantasy scenario never happened, instead it revealed that the Trump White House actually demanded tweets that insulted the President get taken down and that Twitter bent over backwards to give Trump more leeway, even after he broke clear rules. It was something of a disaster hearing for the GOP.
But, one of the craziest bits of the hearing came from new Congressional Rep. Anna Paulina Luna, who worked for Turning Point USA and PragerU before being elected. Her five minutes has garnered some extra attention for being even crazier than either Reps. Lauren Boebert or Marjorie Taylor Greene, both of whom had pretty crazy rants.
In particular, Rep. Luna (who has been facing some interesting news reporting of late) made some claims about there being a conspiracy between Twitter and the government to communicate via “the private cloud server”… Jira.
Of course, as anyone with even the slightest bit of understanding about, well, anything, would tell you, it’s that Jira is an issue and project tracking software, normally used for things like bug tracking. Luna claimed this was a violation of the 1st Amendment, because she apparently hasn’t the slightest clue how the 1st Amendment actually works.
From the transcript (helpfully provided by Tech Policy Press, though we’ve corrected it based on the video), you can see former Twitter exec Yoel Roth’s confusion over all this. For anyone who understands this, you can recognize Roth’s confusion because he recognizes that she’s completely misconstruing Jira and what it does. But, to Rep. Luna, she seems to think she’s caught Roth out in a giant conspiracy.
Rep. Anna Luna (R-FL):
Mr. Roth. Mr. Roth, have you communicated with government officials ever on a platform called Jira? Yes or no? Real quick answer, we’re on the clock, yes or no?
Yoel Roth:
Not to the best of my recollection.
Rep. Anna Luna (R-FL):
Not to your recollection. Great. Have, if you did in the event, communicate who would’ve had access to this platform.
Yoel Roth:
That’s the nature of my confusion. JIRA’s…
Rep. Anna Luna (R-FL):
Okay. Did you ever speak to government officials on Jira regarding taking down social media posts?
Yoel Roth:
Again, not to the best of my recollection.
Rep. Anna Luna (R-FL):
Can you explain to me why the federal government would ever have interest in communicating through Jira? Mind you, a private cloud server with social media companies without oversight to censor American voices? I wanna let you know that this is a violation of the First Amendment and the federal government is colluding with social media companies to censor Americans. Mr. Chairman, I ask for unanimous consent to submit these graphics into record. And Mr. Roth, I’m gonna refresh your memory for you this flow chart.
Rep. James Comer (R-KY):
Without objection so ordered.
Rep. Anna Luna (R-FL):
Thank you chair. This flow chart shows the following Federal agency’s social media companies, Twitter, leftist, nonprofits, and organizations communicating regarding their version of misinformation using Jira, a private cloud server. On this chart, I wanna annotate that the Department of Homeland Security, which has a following branches, cybersecurity and infrastructure security agency, also known as CISA Countering Foreign Intelligence Task Force, now known as the Misinfo, Disinfo and Mal-information, MDM, this was again, used against the American people. The Election Partnership Institute or Election Integrity Partnership, EIP, which includes the following, Stanford Internet Observatory, University of Washington Center for Informed Public, Graphika and Atlantic Council’s Digital Forensic Research Lab. And potentially according to what we found on the final report by EIP, the DNC, the Center for Internet Security, CIS- a nonprofit funded by DHS, the National Association of Secretaries of State, also known as NASS and the National Association of State Election Directors, NASED.
And in this case, because there are other social media companies involved, Twitter, what do all of these groups though, have in common? And I’m going to refresh your memory. They were all communicating on a private cloud server known as Jira. Now, the screenshot behind me, which is an example of one of thousands shows on November 3rd, 2020, that you, Mr. Roth, a Twitter employee, were exchanging communications on Jira, a private cloud server with CISA, NASS, NASED, and Alex Stamos, who now works at Stanford and is a former security of security officer at Facebook to remove a posting. Do you now remember communicating on a private cloud server to remove a posting? Yes or no?
Yoel Roth:
I wouldn’t agree with the characteristics.
Rep. Anna Luna (R-FL):
I don’t care if you agree. Do you, this is, this is your stuff, yes or no? Did you communicate with a private entity, the government agency on a private cloud server? Yes or no?
Yoel Roth:
The question was, if I…
Rep. Anna Luna (R-FL):
Yes or no? Yeah, I’m on time. Yes or no?
Yoel Roth:
Ma’am, I don’t believe I can give you a yes or no.
Rep. Anna Luna (R-FL):
Well, I’m gonna tell you right now that you did and we have proof of it. This ladies and gentlemen, is joint action between the federal government and a private company to censor and violate the First Amendment. This is also known, and I’m so glad that there’s many attorneys on this panel, joint state actors, it’s highly illegal. You are all engaged in this action, and I want you to know that you will be all held accountable. Ms. Gadde, are you still on CISA’s Cybersecurity Advisory Council? Yes or no?
Vijaya Gadde:
Yes, I am.
Rep. Anna Luna (R-FL):
Okay. For those who have said that this is a pointless hearing, and I just wanna let you guys all know, we found that Twitter was indeed communicating with the federal government to censor Americans. I’d like to remind you that this was all in place before January 6th. So, to say that these mechanisms weren’t in place, and to make it about January 6th, I wanna let you know that you guys were actually in control of all of the content and clearly have proof of that. Now, if you don’t think that this is important to your constituents and the American people from those saying that this was a pointless hearing, I suggest you find other jobs. Chairman, I yield my time.
If you actually want to watch all this play out, it’s at 5 hours and 31 minutes in this video (the link should take you to that point). You can see how proud Luna is of herself as she thinks she’s proven “joint state action” and found the secret “Jira private cloud server” where social media and government actors colluded to censor people.
The problem, of course, is that none of this is even remotely true. Whether Luna knows it’s not true, has very stupid staffers who told her something false, or if they just don’t care because it sounds good… I don’t know. I do know that Luna has continued to take a victory lap on this nonsense, including claiming on Steve Bannon’s podcast that she caught Roth “lying” under oath to a member of Congress, and she insisted that the panelist’s stunned faces were not because they were realizing just how confused Luna was about all this, but (she said) because they all wanted to immediately text their lawyers about how in trouble they were.
So, let’s debunk all of this nonsense. And, I won’t even bother digging into the fact that at the time of this supposed smoking gun, Trump was in office, and his hand appointed director ran CISA. There’s so much other dumb stuff, I don’t even have time to spend any more time on that.
Now, once again, Jira is a ticketing system, and a widely used one. It is not a “private cloud server” for “communicating.”
All of the details of what’s going on here were totally public already. The Election Integrity Partnership, which was a private project run by the Stanford Internet Observatory, UW Center for an Informed Public, Graphika, and the Digital Forensic Research Lab, have been quite open and public about what they did to try to track and monitor election mis- and dis-information.
They released a big report, called The Long Fuse in 2021 that details how they used Jira to track possible election disinfo vectors. They used it internally, but they were also able to “tag” in different organizations if they thought it was necessary. This is described pretty clearly and publicly in the report on page 18 and 19:
To illustrate the scope of collaboration types discussed above, the following case
study documents the value derived from the multistakeholder model that the
EIP facilitated. On October 13, 2020, a civil society partner submitted a tip via
their submission portal about well-intentioned but misleading information in a
Facebook post. The post contained a screenshot (See Figure 1.4).
In their comments, the partner stated, “In some states, a mark is intended
to denote a follow-up: this advice does not apply to every locality, and may
confuse people. A local board of elections has responded, but the meme is
being copy/pasted all over Facebook from various sources.” A Tier 1 analyst
investigated the report, answering a set of standardized research questions,
archiving the content, and appending their findings to the ticket. The analyst
identified that the text content of the message had been copied and pasted
verbatim by other users and on other platforms. The Tier 1 analyst routed
the ticket to Tier 2, where the advanced analyst tagged the platform partners
Facebook and Twitter, so that these teams were aware of the content and could
independently evaluate the post against their policies. Recognizing the potential
for this narrative to spread to multiple jurisdictions, the manager added in the
CIS partner as well to provide visibility on this growing narrative and share the
information on spread with their election official partners. The manager then
routed the ticket to ongoing monitoring. A Tier 1 analyst tracked the ticket until
all platform partners had responded, and then closed the ticket as resolved.
According to two different people I spoke to at the EIP, this Tier 2 setup, where companies got tagged in happened rarely. Instead, these tickets were mostly just used internally for EIP’s own research efforts. But, either way, note the issue. This is not government employees telling social media to take down posts. This is the EIP, basically a bunch of disinformation researchers, conducting research, and escalating issues to companies to be “independently evaluated against their policies.”
Now, as for the “smoking gun” which Luna showed where she claimed she’s proven “state action,” it’s very blurry and impossible to see in the C-SPAN video, and she didn’t tweet it either. Perhaps because it kinda debunks her entire argument.
The screenshot also isn’t anything secret. It was part of EIP’s own presentation explaining how the EIP worked! In this 12 minute video, Stanford’s Alex Stamos explains the whole process, and at 4 minutes and 14 seconds, he shows a specific example, which appears to be the blurry example that Luna claimed was her smoking gun. Except when you look at it, you see it’s actually an item that (1) EIP found and highlighted (not government officials) of actual election disinfo (someone claiming to be a poll worker burning ballots for anyone who voted for Trump). (2) They tagged in Yoel Roth from Twitter, who rather than just take it down, actually pushed back saying “Is there any evidence establishing that this was a hoax.” (3) EIP then reached out to the relevant election board to see if they had any proof that it was a hoax, and (4) them getting back a press release from the Election Board saying it was a hoax.
That is… not the government colluding to censor Americans. Nor is it Yoel Roth communicating with government officials. It’s EIP (not a gov’t org) raising a potential issue that clearly violates Twitter’s policies, but rather than immediately taking it down, Roth wants actual evidence. That then causes EIP to reach out to other orgs who can speak to the government officials and find out if there’s any further evidence.
In other words, nothing shown in the screenshot is Yoel communicating with government officials (only with EIP). Nothing shown is government officials demanding Twitter censor anyone. Instead, it shows private actors flagging some potentially consequential election disinfo. Finally, nothing in it shows that Twitter is quick to censor content based on these requests, rather it shows Yoel’s sole communication in the chain pushing back on what seems to be pretty clear disinfo, but demanding actual evidence that it’s false before he is willing to take action. Also, none of it was secret! EIP literally posted it themselves to brag about how their system worked to share useful information about election disinfo.
Once again, America, I beg you: elect better people.
The FBI has had access to Section 702 surveillance and it has always abused this access. The data and communications are collected by the NSA under this authority. Once collected, the FBI hooks up to this massive data store and to perform backdoor searches on domestic targets, even though it’s only supposed to received masked/minimized domestic data from the NSA.
The Snowden leaks led to a years-long deluge of information detailing the FBI’s casual abuse of a foreign-facing surveillance program to warrantlessly obtain data and communications originating from US persons.
We’re nearly a decade on from the first Snowden leak and news of the FBI’s surveillance abuses just keeps coming. But there’s a possible reckoning on the horizon. As Dell Cameron reports for Wired, a combination of incessant abuse and political football may finally sever the FBI’s access to the NSA’s Section 702 collections.
A report on the audit, only recently declassified, found that in the first half of 2020, FBI personnel unlawfully searched raw FISA data on numerous occasions. In one incident, agents reportedly sought evidence of foreign influence linked to a US lawmaker. In another, an inappropriate search pertained to a local political party. In both cases, these “errors” attributed to a “misunderstanding” of the law, the report says.
At some point between December 2019 and May 2020, FBI personnel conducted searches of FISA data using “only the name of a US congressman,” the report says, a query that investigators later found was “noncompliant” with legal procedures. While some searches were “reasonably likely to return foreign intelligence information,” investigators said, they were also “overly broad as constructed.”
In another incident, the FBI ran searches using the “names of a local political party,” even though a connection to foreign intelligence was “not reasonably likely.”
A new House panel investigating the “weaponization of the federal government” held its first hearing on Thursday,as part of the Republican majority‘s push to ramp up scrutiny of the Biden administration.
Republicans and Democrats traded attacks during the hours-long meeting for the House Judiciary Committee’s select subpanel. Chairman Jim Jordan, the Ohio Republican who leads both the full committee and the new subcommittee, laid out his party’s plans.
“We expect to hear from Americans who have been targeted by their government,” Jordan said as part of a longer list of GOP grievances.
The Republicans have finally found a reason to get angry about domestic surveillance abuses. The Bush years were spent encouraging every new expansion of the surveillance state. The Obama years saw pretty much the same thing, if only because President Obama sporadically expressed concerns about information contained in the Snowden leaks. Trump’s four chaotic years fueled partisan fires by adding wild conspiracy theories to burning vitriol. Now, it’s all coming to a head.
The subcommittee is expected to probe claims that the Department of Justice, FBI and other federal agencies are biased against conservatives. Republicans have voiced a long list of concerns, alleging the department mishandled allegations against former President Donald Trump, abused its surveillance powers and retaliated against parents who spoke out at school board meetings.
The panel said Thursday’s hearing would look at “the politicization of the FBI and DOJ and attacks on American civil liberties.” Witnesses included Sens. Chuck Grassley, R-Iowa, and Ron Johnson, R-Wisc., for Republicans and the House Oversight Committee ranking member, Maryland Democratic Rep. Jamie Raskin.
In other words, the House subcommittee won’t stand for attacks on certain people’s civil liberties. Well, whatever works, I guess. The FBI houses plenty of Trump fans, so severing access to surveillance stores is likely to hurt the Republicans more than it helps. And I would suspect this committee doesn’t have much of an opinion about the FBI’s more standard attacks on civil liberties, which affect people many Republicans view as inherently suspicious.
DOJ investigators unearthed another incident, which in the report they say violated US attorney general guidelines: an FBI analyst using Section 702 intelligence in a way that “lacked a proper authorized purpose.” The investigators said “improper queries” were prompted by a report about an “individual of Middle Eastern descent,” whom a witness claimed “sped” into a parking lot before honking his horn. “A second individual of Middle Eastern descent” then began loading boxes into a second vehicle, said the witness, who noted some of the boxes were labeled Drano, the brand name of a drain-cleaning product.
The FBI is capable of abusing its access in multiple ways. A bipartisan effort to terminate the FBI’s use of Section 702-derived data would be preferable, but if the Republicans can end this program (or refuse to re-up Section 702 itself), we all win, no matter what the underlying intentions. But the important thing to remember is the FBI abuses access without political preference, and is far more likely to target people Republicans leaders don’t like than Republican leaders themselves.
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What’s the opposite of shadowbanning? Maxboosting? I dunno, but whatever it is, that’s what Twitter’s frustrated and exhausted engineers gave Elon Musk after he whined (for not the first time) that people might like someone more than they like Elon. By now you know the basics: last week it was reported that Elon was getting frustrated that the views on his tweets were dropping, and he apparently fired an engineer who suggested that maybe, just maybe, Elon wasn’t quite so popular any more. Then, on Monday, suddenly lots of people found that their “For You” algorithmic feed (something Musk insisted was evil before he took over, but now is pressuring people to use) basically was just The Elon Musk show, with every tweet being something from Elon.
Zoe Schiffer and Casey Newton are back with the inside scoop on what happened. Basically, it sounds like Elon threw yet another tantrum, this time because a Joe Biden Super Bowl tweet got more engagement than an Elon Musk tweet. So, in the middle of the night after the Super Bowl, Mr. Nepotism had his cousin send a message to everyone at Twitter, saying this was a “high urgency” issue.
At 2:36 on Monday morning, James Musk sent an urgent message to Twitter engineers.
“We are debugging an issue with engagement across the platform,” wrote Musk, a cousin of the Twitter CEO, tagging “@here” in Slack to ensure that anyone online would see it. “Any people who can make dashboards and write software please can you help solve this problem. This is high urgency. If you are willing to help out please thumbs up this post.”
When bleary-eyed engineers began to log on to their laptops, the nature of the emergency became clear: Elon Musk’s tweet about the Super Bowl got less engagement than President Joe Biden’s.
Of course, for any person who can understand basic things like “what people like” you can kinda see why Biden’s tweet about the Super Bowl got more attention than Musk’s. Biden posted a sweet message noting that while he wasn’t taking sides, he had to root for the Eagles because Jill Biden apparently is a huge Eagles fan. It’s a cute tweet.
Musk’s tweet, on the other hand, was just straight up “Go @Eagles” with a bunch of American flags, and there was little reason to interact with it.
And, I mean, even funnier is that after the Eagles lost (despite leading for much of the game) Musk… deleted his tweet. Like a true fan. Hardcore.
Still, most normal human beings would recognize that one of those tweets is endearing, and one is just “Look at me, I am embracing your sports team. Love me.” So, it’s not really a surprise that one got more engagement than the other. It wasn’t “the algorithm.” It wasn’t even who is popular and who is not. One is just clearly a more engagement-worthy tweet.
But Musk’s always hungry ego must be sated, so his cousin sent out the “high urgency” issue, and Musk allegedly threatened to fire his remaining engineers if they didn’t solve the problem of his tweets not getting enough engagement:
Platformer can confirm: after Musk threatened to fire his remaining engineers, they built a system designed to ensure that Musk — and Musk alone — benefits from previously unheard-of promotion of his tweets to the entire user base.
[….]
His deputies told the rest of the engineering team this weekend that if the engagement issue wasn’t “fixed,” they would all lose their jobs as well.
Musk told them directly that making his tweets popular again was the top priority project. This is entering mad king territory:
Late Sunday night, Musk addressed his team in-person. Roughly 80 people were pulled in to work on the project, which had quickly become priority number one at the company. Employees worked through the night investigating various hypotheses about why Musk’s tweets weren’t reaching as many people as he thought they should and testing out possible solutions.
The solution, basically hard code into the system that every tweet that Elon Musk ever sends must be considered crazy popular by the algorithm, to a level that it must mean that everyone wants to see it, and therefore everyone will:
By Monday afternoon, “the problem” had been “fixed.” Twitter deployed code to automatically “greenlight” all of Musk’s tweets, meaning his posts will bypass Twitter’s filters designed to show people the best content possible. The algorithm now artificially boosted Musk’s tweets by a factor of 1,000 – a constant score that ensured his tweets rank higher than anyone else’s in the feed.
Internally, this is called a “power user multiplier,” although it only applies to Elon Musk, we’re told. The code also allows Musk’s account to bypass Twitter heuristics that would otherwise prevent a single account from flooding the core ranked feed, now known as “For You.”
For a guy who insisted he was going to “open source” the Twitter algorithm to stop it from artificially promoting one story over another, he’s literally done the opposite. All because he can’t admit that maybe someone else’s tweet was better than his? What a pathetic insecure little brat.
There’s a lot more in the Platformer/Verge piece, but the closing quote from an engineer working on this is the most telling by far:
Terrified of losing their jobs, this is the system that Twitter engineers are now building.
“He bought the company, made a point of showcasing what he believed was broken and manipulated under previous management, then turns around and manipulates the platform to force engagement on all users to hear only his voice,” said a current employee. “I think we’re past the point of believing that he actually wants what’s best for everyone here.”
Elon is, of course, free to do whatever nonsense he wants with the site. He owns it. But people need to realize that he’s been incredibly hypocritical and gone back on nearly every single promise he’s made in running the site, and each time he goes back on a promise, rather than going back in a manner to benefit all users, he only goes back such that it benefits him, and him alone.
Of course, to give credit where credit is due, Matt Levine totally called this back when Elon first bought his original 9% stake in Twitter. Levine predicted how the first meeting with then CEO Parag Agarwal and Musk (as his largest shareholder) would go:
Twitter’s relatively new chief executive officer, Parag Agrawal: Welcome, Mr. Musk. We’re so glad that you are our biggest shareholder. We have prepared a presentation showing how we are executing on our strategy of being more technically nimble, building new products and growing revenue and active users. Here on slide 1 you can see—
Elon Musk: Make the font bigger when I tweet.
Agrawal: What?
Musk: I am your biggest shareholder, I want the font on my tweets to be bigger than the font on everyone else’s tweets.
Agrawal: That’s not really how we—
Musk: And I want 290 characters. Again, just for me.
Agrawal: …
Musk: And it should play a little sound when I tweet so everyone knows.
Agrawal: I just feel like we want to make a good product for all of our millions of users? I feel like that is going to improve profitability in the long run and, as our largest shareholder, you in particular stand to benefit from—
Musk: Oh I don’t care even a little bit about that, if your stock doubles that is rounding error on my net worth, I just love tweeting and want to meddle a bit to optimize it for my personal needs.
I honestly didn’t think Musk could possibly be that vain and that petty. But I guess I was wrong.
As we’ve noted a few times now, U.S. taxpayers have doled out more than $400 million to map broadband access, yet regulators are still struggling to get it right. U.S. ISPs routinely overstate broadband availability and coverage, and they’ve historically challenged efforts to improve broadband maps lest it truly illustrate the downsides of monopoly power and limited competition.
Case in point: a Colorado resident complained to Ars Technica that he couldn’t get Comcast broadband service at his address, despite Comcast claims that he could. The outlet dug a little deeper and found that Comcast’s broadband maps, including the ones submitted to the FCC, dramatically overstated the ISP’s coverage across large swaths of the user’s neighborhood:
Upon reviewing Hillier’s address, we verified that it’s impossible to order service at the home on Comcast’s website. Just as Hillier told the FCC, Comcast’s online availability checker says it’s an “invalid address”—even though Comcast not only told the FCC it serves the home but also disputed Hillier’s challenge when he pointed out the error.
We found similar evidence suggesting Comcast submitted false broadband coverage information at dozens of homes near Hillier’s Arvada address and on a street in Fort Collins, Colorado.
The FCC’s new mapping program includes a challenge system that’s supposed to allow residents, towns, or competitors to challenge inaccurate ISP data. But that system needs a lot of work despite a decade of effort and $400 million. Comcast automatically defended its bad data, forcing the users to jump through hoops to try and prove his very obvious lack of Comcast broadband service:
“I submitted proof from Comcast/Xfinity’s own systems that my address was not served by this provider despite being reported as such to you by Comcast/Xfinity… I expect more from a government body like the FCC [than] to just say ‘go sort it out and let us know how it turns out,'” he wrote in a response to the FCC that he shared with Ars.
As Ars correctly notes, the FCC has a shaky track record when it comes to standing up to monopolies that artificially inflate their broadband coverage. Wireless carriers also have a long history of over-stating broadband and wireless coverage, and the GAO has been complaining about the FCC’s timidity on holding ISPs accountable for the better part of the last decade.
With more than $45 billion in subsidies (thanks to the Infrastructure Act) stumbling down the road, you’re going to be seeing a lot of new complaints about ISPs inflating their broadband availability to nab subsidies they probably don’t deserve. You’ll also see countless stories about how the feckless FCC — whose processes have long favored powerful monopolies — dropping the ball.
Keep in mind that Comcast is also participating in a lobbying and smear campaign to prevent the seating of Gigi Sohn to the FCC, ensuring that the agency lacks the voting majority to do much of anything deemed controversial by the telecom lobby — including holding them accountable for inflated broadband coverage claims.
