For months and months now, we have been talking about Microsoft’s proposed acquisition of Activision Blizzard. The $68 billion mega-deal had drawn narrow glares from several regulatory bodies, including in America, the UK, and the EU. While the FTC in the States and CMA in the UK have thus far not come off some very strongly worded concerns about approving the purchase, the EU appears like it will be the first domino to fall in this whole thing moving forward.
According to Reuters, the European Commission is not expected to ask Microsoft to divest large parts of Activision—like separating out its Call of Duty business—to win approval. Instead, long-term licensing deals of lucrative games that Microsoft has offered to rivals could suffice, in addition to agreeing to “other behavioral remedies to allay concerns of other parties than Sony,” one insider told Reuters.
This was exactly Microsoft’s playbook. The company announced the deal and then started making all sorts of wishy-washy comments about what franchises would be exclusive, how they would be exclusive, which ones wouldn’t be exclusive, and varying lengths of time it would promise to make non-exclusives available on which platforms. When that didn’t satisfy literally anyone — because how could it? — the company pivoted to inking 10 year promises for major franchises like Call of Duty appearing on competing platforms, such as Nintendo and Sony’s consoles.
Which might mean that Microsoft intends to keep these titles multi-platform for longer than that. Or Microsoft could be playing the long game here, willing to be multi-platform for a decade only to claw those franchises, or new franchises, back to exclusivity in the 2030s. Who knows? Not these EU regulators, but that apparently doesn’t matter.
Microsoft appears to being trying to get creative with the UK as well.
Microsoft got its big chance to sway the UK this week when it attended a private hearing with UK’s antitrust watchdog, the Competition and Markets Authority (CMA), to discuss “feasible remedies,” Bloomberg reported. Sources said that Microsoft offered to pay a third-party monitor to oversee the company’s compliance with any behavioral remedies proposed by the UK to approve the deal. The CMA is expected to make its decision on April 26.
We shall see if the CMA, like the EU, is willing to give into this sort of easily circumvented window dressing.
Now, to be clear, acquisitions, even massive ones, aren’t always bad in general, nor bad for the market. In times of economic turmoil, it’s quite common to see industries consolidate for a period of time, where large entities gobble up smaller ones that cannot survive the bad times. That culling of the industry can be a good thing, opening up space for new startups to break into the market when the lean times get better.
But none of that makes what Microsoft is doing to get the regulators to play ball any less suspect. Nor are comments like this.
An Activision spokesperson told Ars that the merger would help the company continue to make multi-platform games that can compete in an “industry dominated by growing competitors.” Activision’s spokesperson also said that the solutions Microsoft has presented “are legally binding, and beyond that, our passionate player community would hold Microsoft accountable for keeping its promises.”
That last bit is pure fantasy. That just isn’t how monopolistic practices work. The market can’t hold Microsoft accountable if the most major gaming franchises are taken exclusive. Or, rather, it could… but won’t.
Otherwise, we’d see Nintendo games be far more cross-platform. And they most certainly are not.
Yesterday, Karl wrote about the absolutely ridiculous situation in which the person perhaps most qualified to be an FCC commissioner, Gigi Sohn, had to withdraw her nomination, which had languished over nearly two years, mostly due to a bunch of absolute ridiculous bullshit lies from telecom and media giants who hated the idea of her being in that job. As someone who has known Sohn for well over a decade, the whole situation is infuriating. Almost all of the claims about her were ridiculous lies, or at least misleading. Anyone who knows her (even those opposed to her policy goals) recognizes that she’s smart, competent, knowledgeable, and focused on actually doing what’s best for the public. She is not, as some falsely framed her, some sort of “partisan” hack.
The whole thing is incredibly frustrating.
It’s no surprise that the GOP united against her. They would do that for almost any nominee. But it’s sad that the telcos and cablecos were able to convince enough Democrats to go along with it, and that it never really seemed like there was a strategy from the administration to get her approved.
Either way, Karl posted just an excerpt of Gigi’s statement, but I think it’s worth people reading the whole thing, so we’re posting it here. Gigi has spent decades literally fighting to make the internet better for you and for me, and not for giant companies. Her withdrawing from this process is a loss for all of us.
Last night after discussions with my family and careful consideration, I made the decision to ask
President Biden to withdraw my nomination to the Federal Communications Commission. When
I accepted his nomination over sixteen months ago, I could not have imagined that legions of
cable and media industry lobbyists, their bought-and-paid-for surrogates, and dark money
political groups with bottomless pockets would distort my over 30-year history as a consumer
advocate into an absurd caricature of blatant lies. The unrelenting, dishonest and cruel attacks
on my character and my career as an advocate for the public interest have taken an enormous
toll on me and my family.
Unfortunately, the American people are the real losers here. The FCC deadlock, now over two
years long, will remain so for a long time. As someone who has advocated for my entire career
for affordable, accessible broadband for every American, it is ironic that the 2-2 FCC will remain
sidelined at the most consequential opportunity for broadband in our lifetimes. This means that
your broadband will be more expensive for lack of competition, minority and underrepresented
voices will be marginalized, and your private information will continue to be used and sold at
the whim of your broadband provider. It means that the FCC will not have a majority to adopt
strong rules which ensure that everyone has nondiscriminatory access to broadband, regardless
of who they are or where they live, and that low income students will continue to be forced to
do their school work sitting outside of Taco Bell because universal service funds can’t be used
for broadband in their homes. And it means that many rural Americans will continue the long
wait for broadband because the FCC can’t fix its Universal Service programs.
It is a sad day for our country and our democracy when dominant industries, with assistance
from unlimited dark money, get to choose their regulators. And with the help of their friends in
the Senate, the powerful cable and media companies have done just that.
I want to thank President Biden for his faith in me and for my champions in the Senate who
defended me at every turn. I especially want to thank the dozens of people who volunteered
their time and energy to help me through this process, as well as the over 400 organizations,
companies and trade associations, and hundreds of thousands of individuals who registered
their support with the Senate. I will forever be grateful for their efforts on my behalf.
I hope the President swiftly nominates an individual who puts the American people first over all
other interests. The country deserves nothing less.
At some point, you have to wonder if judges are going to start slapping sanctions on former Representative Devin Nunes and his SLAPP-happy vexatious litigator, Steven Biss. We’ve covered their many escapades in filing highly questionable defamation cases against basically any major media organization that so much as lightly criticizes Nunes (and also… a satirical internet cow). Given its outsized roles in the minds of culture warriors who wish to insist that it is biased against them, it’s perhaps little surprise that the Nunes/Biss superduo has sued CNN numerous times. They also have a history of losing those cases.
The most recent one was late last year, when Nunes sued CNN (again) and its host Jake Tapper, after Tapper called out a bunch of Republicans, including Nunes, for how they responded to the attack on Paul Pelosi in his San Francisco home.
As we highlighted at the time, the complaint listed out five statements that Nunes claimed were defamatory:
1 “He [referring to President Donald Trump], at least, did condemn the attack on Paul Pelosi, as did House Republican Leader Kevin McCarthy, as did Senate Minority Leader Mitch McConnell”
2 “But you know what, far too many other Republicans and Conservative leaders are out there instead spreading insane, offensive and false conspiracy theories, such as the complete and utter lie, the deranged smear that Paul Pelosi and the attacker, the man who hit him in the head with a hammer, were in a sexual relationship”
3 “It’s hard to fathom the kind of mind that hears of a tragedy, like what happened to 82 year-old Paul Pelosi, and decides to traffic in this filth. But, sadly, Donald Trump Jr. is hardly alone. Former Republican Congressman and Chairman of the House Intelligence Committee, Devin Nunes, who now runs Trump’s social media company, Truth Social, shared this Halloween image [link to truth] with the words, ‘at least this guy has his clothes on.’ Nunes also reposted this meme [link to retruth], using a poster for the gay romantic comedy Bros, twisting it into a smear of Paul Pelosi. And, again, the man who tried to bash Paul Pelosi’s head in with a hammer. Words fail.”
4 “What is wrong with these people?”
5 “In addition to being an inhuman and inhumane response to a tragedy, it’s a lie … Pelosi did not know the suspect.”
As we noted at the time, many of these statements weren’t even about Nunes in the first place, and things like “what is wrong with these people” is so obviously not defamatory (it’s just a pure statement of opinion) that no good defamation lawyer would ever try to claim that it was. We wondered if this would lead to even more sanctions against Biss.
Last week, the case was thrown out, but not because the the claims are so weak, but for an even more ridiculous reason: Biss filed it in a court that has no jurisdiction over the matter. For unclear reasons, he filed the case in Florida (perhaps because that’s where Truth Social, the flailing social media site started by former President Trump that news reports suggest he’s looking to abandon, is headquartered).
Either way, the judge is not at all impressed. The case against Tapper is dismissed for lack of personal jurisdiction, given that Tapper is in DC, not Florida:
Florida’s long-arm statute does not reach Tapper, and exercising personal jurisdiction over him in Florida would not satisfy due process; therefore this case is due to be dismissed as to Tapper.
The court notes that only one of the statements could possibly even be implied to be directed at Florida, but even that’s not enough.
Tapper reported the Segment while in CNN’s Washington, D.C. studio, where he generally reports from, and the Segment was produced by employees who work out of CNN’s D.C. or New York City bureaus…. Nothing Tapper discussed in the Segment pertained specifically to Florida, and Tapper never traveled to Florida in relation to the Segment… Nunes merely alleges he suffered harm in Florida because he works there. But Tapper’s commentary was not directed at the business of Truth Social or Nunes’ work with the company… Both Florida law and the U.S. Constitution, therefore, require that the claim against Tapper be dismissed… for lack of personal jurisdiction — both general and specific.
As for CNN, the case against it is dismissed for Florida being the “improper venue.”
Nunes alleges that he “works in Sarasota County”… but, for venue purposes, the fact that he works in Florida is irrelevant. The relevant question is whether all defendants reside in the state of Florida — Nunes’ ties to Florida do not matter.
And thus, yet another of Devin Nunes’ questionable lawsuits against CNN fails. The fact that pretty much all of them seem to end this way again should make people wonder exactly why Nunes keeps filing these SLAPP suits (and who is funding them).
Back in September 2021 Techdirt covered an outrageous legal attack by Sony Music on Quad9, a free, recursive, anycast DNS platform. Quad9 is part of the Internet’s plumbing: it converts domain names to numerical IP addresses. It is operated by the Quad9 Foundation, a Swiss public-benefit, not-for-profit organization. Sony Music says that Quad9 is implicated in alleged copyright infringement on the sites it resolves. That’s clearly ridiculous, but unfortunately the Regional Court of Hamburg agreed with Sony Music’s argument, and issued an interim injunction against Quad9. The German Society for Civil Rights (Gesellschaft für Freiheitsrechte e.V. or “GFF”) summarizes the court’s thinking:
In its interim injunction the Regional Court of Hamburg asserts a claim against Quad9 based on the principles of the German legal concept of “Stoererhaftung” (interferer liability), on the grounds that Quad9 makes a contribution to a copyright infringement that gives rise to liability, in that Quad9 resolves the domain name of website A into the associated IP address. The German interferer liability has been criticized for years because of its excessive application to Internet cases. German lawmakers explicitly abolished interferer liability for access providers with the 2017 amendment to the German Telemedia Act (TMG), primarily to protect WIFI operators from being held liable for costs as interferers.
As that indicates, this is a case of a law that is a poor fit for modern technology. Just as the liability no longer applies to WIFI operators, who are simply providing Internet access, so the German law should also not catch DNS resolvers like Quad9. The GFF post notes that Quad9 has appealed to the Hamburg Higher Regional Court against the lower court’s decision. Unfortunately, another regional court has just handed down a similar ruling against the company, reported here by Heise Online (translation by DeepL):
the Leipzig Regional Court has sentenced the Zurich-based DNS service Quad9. On pain of an administrative fine of up to 250,000 euros or up to 2 years’ imprisonment, the small resolver operator was prohibited from translating two related domains into the corresponding IP addresses. Via these domains, users can find the tracks of a Sony music album offered via Shareplace.org.
The GFF has already announced that it will be appealing along with Quad9 to the Dresden Higher Regional Court against this new ruling. It says that the Leipzig Regional Court has made “a glaring error of judgment”, and explains:
Let’s hope so. If it isn’t, we can expect companies providing the Internet’s basic infrastructure in the EU to be bombarded with demands from the copyright industry and others for domains to be excluded from DNS resolution. The likely result is that perfectly legal sites and their holdings will be ghosted by DNS companies, which will prefer to err on the side of caution rather than risk becoming the next Quad9.
One of the NSA’s most powerful spying tools is up for renewal at the end of the year. The problem with this power isn’t necessarily the NSA. I mean, the NSA has its problems, but the issue here is the domestic surveillance performed by the FBI via this executive power — something it shouldn’t be doing but has almost always done.
The FBI is currently catching a lot of heat for its “backdoor” access to US persons’ data and communications, something it has shown little interest in controlling or tracking. Abuse is a regular occurrence and this abuse finally received some high profile attention after Congressional Republicans got bent out of shape because some of their own people ended up under the FBI’s backdoor Section 702 microscope.
So, while there’s some grandstanding going on, the underlying concerns do need to be addressed. And Democrats have only themselves to blame for allowing the FBI to continue to abuse the privilege. They re-upped the program right after Trump took office. That it’s the Republicans complaining about surveillance abuses after banding together to ensure President Trump had this power is especially ironic. But let’s not forget prominent Democrats who previously complained about surveillance abuses decided it was a good idea to vote in favor of an unaltered reauthorization.
Section 702 allows the NSA to perform “upstream” collections of data and communications. It’s foreign-facing but it also collects any communications between foreign targets and US persons. That’s where the FBI steps in. It’s only supposed to be able to access minimized data and communications, but these restrictions are often ignored by the agency.
With this power on the line, a member of the Privacy and Civil Liberties Oversight Board (PCLOB) is expressing his concern with the ongoing failure of the DOJ and FBI to get the FBI’s abuse of this surveillance power under control.
The PCLOB was formed in the wake of the Snowden leaks to advocate on behalf of Americans and their rights. The PCLOB makes the court adversarial — something it always should have been (since Americans’ rights are often implicated in surveillance requests) but never was.
“I do have concerns with a clean reauthorization,” he said, and he believes the program needs “common-sense protections that could be put in place to balance privacy and civil liberties with the national security interest.”
Specifically, the program needs constraints on the FBI’s access and use of the data collected by the NSA. For years, the FBI has abused its access to perform backdoor searches of Americans’ data. And for years, it has been unable to explain why it can’t stop violating minimization procedures and what, if anything, this unexpected, “incidental” treasure trove contributes to its law enforcement work.
LeBlanc says it’s time to add the Fourth Amendment back into the mix to put an end to this form of secondhand, warrantless surveillance.
LeBlanc also said that “it is apparent we have reached a point where the massive number of U.S. queries, in particular, warrant the use of a prior court order before allowing any search of a Section 702 collection for U.S. persons information.”
To that end, LeBlanc suggests a couple of changes. First, there’s the court order requirement. Then Congress could limit the NSA’s haystack-building apparatus by ending its “about” variables, which allow it to also search for communications that merely mention certain individuals, rather than limiting collection to those actually communicating with the agency’s targets. Finally, Congress should act to limit or forbid “batch searches” of 702 collections by the FBI, preventing it from engaging in mass violations of the Fourth Amendment courts (so far) have ruled the government should never have to answer for.
If anyone can get this done, it’s Congressional leaders motivated by personal animus and political grandstanding. An entire party is, at the moment, extremely angry at the FBI. Blatant self-interest may finally achieve what privacy advocates and activists have been seeking for several years. If the ends are going to justify the means, it may as well be these ends and those means. Some concern for the little people would be nice, but as an advocate of restricted surveillance powers, I’m willing to take what I can get.
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Back in the fall we were among the first to highlight that Elon Musk might face a pretty big FTC problem. Twitter, of course, is under a 20 year FTC consent decree over some of its privacy failings. And, less than a year ago (while still under old management), Twitter was hit with a $150 million fine and a revised consent decree. Both of them are specifically regarding how it handles users private data. Musk has made it abundantly clear that he doesn’t care about the FTC, but that seems like a risky move. While I think this FTC has made some serious strategic mistakes in the antitrust world, the FTC tends not to fuck around with privacy consent decrees.
However, now the Wall Street Journal has a big article with some details about the FTC’s ongoing investigation into Elon’s Twitter (based on a now released report from the Republican-led House Judiciary who frames the whole thing as a political battle by the FTC to attack a company Democrats don’t like — despite the evidence included not really showing anything to support that narrative).
The Federal Trade Commission has demanded Twitter Inc. turn over internal communications related to owner Elon Musk, as well as detailed information about layoffs—citing concerns that staff reductions could compromise the company’s ability to protect users, documents viewed by the Wall Street Journal show.
In 12 letters sent to Twitter and its lawyers since Mr. Musk’s Oct. 27 takeover, the FTC also asked the company to “identify all journalists” granted access to company records and to provide information about the launch of the revamped Twitter Blue subscription service, the documents show.
The FTC is also seeking to depose Mr. Musk in connection with the probe.
I will say that some of the demands from the FTC appear to potentially be overbroad, which should be a concern:
The FTC also asked for all internal Twitter communications “related to Elon Musk,” or sent “at the direction of, or received by” Mr. Musk.
I mean… that seems to be asking for way more than is reasonable. I’ve heard some discussion that these requests are an attempt to figure out who Musk is delegating to handle privacy issues at the company (as required in the consent decree), but it seems that such a request can (and should) be more tailored to that point. Otherwise, it appears (and will be spun, as the House Judiciary Committee is doing…) as an overly broad fishing expedition.
Either way, as we predicted in our earlier posts, the FTC seems quite concerned about whether or not Twitter is conducting required privacy reviews before releasing new features.
The FTC also pressed Twitter on whether it was conducting in-depth privacy reviews before implementing product changes such as the new version of Twitter Blue, as required under the 2022 order. The agency sought detailed records on how product changes were communicated to Twitter users.
It asked Twitter to explain how it handled a recently reported leak of Twitter user-profile data, to account for changes made to the way users authenticate their accounts, and to describe how it scrubbed sensitive data from sold office equipment.
Another area that is bound to be controversial (and Matt Taibbi is, in his usual fashion, misleadingly misrepresenting things and whining about it) is that the FTC asked to find out which outside “journalists” had been granted access to Twitter systems:
On Dec. 13, the FTC asked about Twitter’s decision to give journalists access to internal company communications, a project Mr. Musk has dubbed the “Twitter Files” and that he says sheds light on controversial decisions by previous management.
The agency asked Twitter to describe the “nature of access granted each person” and how allowing that access “is consistent with your privacy and information security obligations under the Order.” It asked if Twitter conducted background checks on the journalists, and whether the journalists could access Twitter users’ personal messages.
Given the context, this request actually seems reasonable. The consent decree is pretty explicit about how Twitter needs to place controls on access to private information, and the possibility that Musk gave outside journalists access to private info was a concern that many people raised. Since then, Twitter folks have claimed that it never gave outside journalists full access to internal private information, but rather tasked employees with sharing requested files (this might still raise some questions about private data, but it’s not as free wheeling as some worried initially). If Twitter really did not provide access to internal private data to journalists, then it can respond to that request by showing what kind of access it did provide.
But, Taibbi is living down to his reputation and pretending it’s something different:
At best, Taibbi seems to be conflating two separate requests here. The request for all of Musk’s communications definitely does seem too broad, and it seems like Twitter’s lawyers (assuming any remain, or outside counsel that is still having its bills paid) could easily respond and push back on the extensiveness of the request to narrow it down to communications relevant to the consent decree. That’s… how this process normally works.
As for the claim that which journalists an executive talks to is not the government’s business, that is correct, but lacking context. It becomes the government’s business if part of the conversation with the journalist is to violate the law. And… it’s that point that the FTC is trying to determine. If they didn’t violate the consent decree, then, problem solved.
Thus, the request regarding how much access Musk gave to journalists seems like a legitimate question to determine if the access violated the consent decree. One hopes that Twitter was careful enough in how this was set up that the answer is “no, it did not violate the consent decree, and all access was limited and carefully monitored to protect user data,” but that’s kinda the reason that the investigation is happening in the first place.
Indeed, in the House Judiciary Committee report, in which they try to turn this into a much bigger deal, they do reveal a small snippet of the FTC’s requests to Twitter on this topic that suggest that Taibbi is (yet again) totally misrepresenting things (it’s crazy how often that’s the case with that guy), and their concern is literally to the single point implicated by the consent decree: did Twitter give outside journalists access to internal Twitter systems that might have revealed private data:
I would be concerned if the request actually were (as Taibbi falsely implies) for Musk to reveal every journalist he’s talking to. But the request (as revealed by the Committee) appears to only be about “journalists and other members of the media to whom” Elon has “granted any type of access to the Companies internal communications.” And, given that the entire consent decree is about restricting access to internal systems and others’ communications, that seems directly on point and not, as the Judiciary Committee and Taibbi complain, about an attack on the 1st Amendment.
It remains entirely possible that the FTC finds nothing at all here. Or that if it tries to file claims against Twitter that Twitter wins. Unlike some people, I am not rushing to assume that the FTC is going to bring Twitter to account. But there are some pretty serious questions about whether or not Musk is abiding by the consent decree, and violating a consent decree is just pleading for the FTC to make an expensive example of you.
The relentless push to make every last feature in every tech device you own part of a subscription service shows no sign of slowing down. Fitness companies like Fitbit have increasingly shoveled basic health monitoring features into their subscription plan. Companies like BMW have increasingly tried to make basic concepts like heated seats a subscription-only feature.
The push, a natural response to Wall Street’s insatiable demand for improved quarterly returns at any cost, understandably isn’t popular with consumers. Especially if the tech powering the feature is already embedded in the tech you’ve purchased — and in the retail price you paid for it.
Amazon-owned Ring is making several free features part of its paid subscription program starting on March 29th. As of that date, if you have a Ring video doorbell or camera, you will no longer have access to Home and Away Modes in the app without a paid subscription, starting at $3.99 a month ($39.99 a year). Modes is a simple way to tell all your cameras to stop detecting motion when you’re home and start when you leave.
Even basic features, like being able to arm or disarm the alarm or connecting it to your Alexa voice assistant will now require a subscription plan to function as of March 29th. While the change won’t impact existing Ring owners yet, customers on Reddit feel like it’s only a matter of time:
As one Reddit user pointed out, there are no guarantees Ring will continue to allow legacy users to have features they paid for. “Based on this type of behavior, I assume they will be boiling us frogs at some point. This is the misdirection stage,” he wrote.
Given recent tech industry history, they’re correct to worry. And these changes come, of course, fresh on the heels of customer annoyance at a slew of significant price hikes last year. Ring doorbell and security owners now pay either $4 a month for the Ring Protect Basic plan (used to be $3 a month) or $20 a month for a Ring Protect Pro plan (used to be $10 a month).
Granted that creates a competitive opportunity for companies that don’t want to aggressively nickel-and-dime loyal customers. In the health smartwatch space, Garmin has made inroads on companies like Fitbit by not making every stupid, basic function a subscription service (for now). In the home security and camera space, both Abode and SimpliSafe have done things like introduce free tiers or avoided charging extra for home monitoring in a bid to counter Ring’s dominance.
