For quite some time now we’ve been pointing out the many harms of age verification technologies, and how they’re a disaster for privacy. In particular, we’ve noted that if you have someone collecting biometric information on people, that data itself becomes a massive risk since it will be targeted.
And, remember, a year and a half ago, the Age Verification Providers Association posted a comment right here on Techdirt saying not to worry about the privacy risks, as all they wanted to do was scan everyone’s face to visit a website (perhaps making you turn to the left or right to prove “liveness”).
Anyway, now a report has come out that some Chinese hackers have been tricking people into having their faces scanned, so that the hackers can then use the resulting scan to access accounts.
Attesting to this, cybersecurity company Group-IB has discovered the first banking trojan that steals people’s faces. Unsuspecting users are tricked into giving up personal IDs and phone numbers and are prompted to perform face scans. These images are then swapped out with AI-generated deepfakes that can easily bypass security checkpoints
The method — developed by a Chinese-based hacking family — is believed to have been used in Vietnam earlier this month, when attackers lured a victim into a malicious app, tricked them into face scanning, then withdrew the equivalent of $40,000 from their bank account.
Cool cool, nothing could possibly go wrong in now requiring more and more people to normalize the idea of scanning your face to access a website. Nothing at all.
And no, this isn’t about age verification, but still, the normalization of facial scanning is a problem, as it’s such an obvious target for scammers and hackers.
Like most tech, facial recognition AI continues to become cheaper and easier to implement. Is it getting better? Well, that hardly seems to be a primary concern for those deploying it.
Adoption of this tech tends to focus on the law enforcement side of things. This is where it seems to perform worse. The tech is much more unreliable when asked to identify minorities. That’s problematic when deployed by the government, which has the power to deprive people of rights and personal freedom when given the go-ahead by tech that performs worse when identifying the very people our government already tends to oppress/over-police most frequently.
The private sector’s use of this tech is often no better. While it has some utility for internal use — i.e., verifying the identities of employees seeking to access certain areas or information — the most common deployments are tied to law enforcement: the (hopeful) identification of suspected criminals. So, even most private sector use invokes the excesses of government power, while still relying on faulty tech that generates the most false positives when dealing with people of color.
Is there such a thing as an innocuous deployment of this tech? Sure. There’s a chance that might happen. But it would involve telling people this information is being collected while making it clear what this information is being gathered for.
Facial recognition tech in a vending machine is unlikely to aid and abet a string of rights violations. But it’s far from innocent. In fact, it tends to disturb people who might otherwise be supportive of government use of this tech.
College students in search of snacks are never going to assume their purchases are triggering facial recognition tech. Wes Davis’ brief summary of a much deeper story for The Verge makes it immediately clear how regular people feel about unexpected facial recognition deployments.
“Why do the stupid M&M machines have facial recognition?”
A student at the University of Waterloo in Canada asked that in a post showing a vending machine error message that revealed a facial recognition app had failed.
Student publication mathNEWS found that the machine’s maker, Invenda, advertises that it gathers “estimated ages and genders of every client.” But don’t worry, Invenda told Ars Technica the machines are “fully GDPR compliant.”
The journalists at Waterloo University’s “mathNEWS” paper dug a lot deeper into this story. The end result may be the welcome removal of surprisingly intrusive snack machines, but the details show that vending machine manufacturers are willing to deploy this tech without performing much due diligence, but far more reluctant to own up to it.
The first mystery that needed to be solved was identifying which company was specifically responsible for adding facial recognition tech to machines that have generated healthy profits for years without attempting to surreptitiously gather demographic data on their customers.
The error message that inadvertently informed students of the presence of this tech included the name of the vendor:
Invenda is not the first link in this chain. The machines were placed on the campus by third party vendor Plant Ops. That company claimed to have zero involvement beyond the delivery and placement of the vending machines that were owned and operated by an entirely different company.
That company was Adaria Vending Services. But this third party also does not manufacture or control the machines’ operation or internal tech. The tech exposed by this error links back to the company named in the error message: Invenda. Not that Adaria’s hands are completely clean, as the student newspaper points out:
Adaria does not make the machines; [journalist] firstie determined the machines’ original manufacturer to be Invenda Group, an organization boasting intelligent vending machines with data collection capabilities. Some data collected is benign, including sales and UI performance metrics. But Adaria can also use these machines to collect further data, sending it to relevant parties including Mars, the manufacturer of M&M’s. In particular, Invenda’s sales brochures state the machines are capable of sending estimated ages and genders of every client.
Two beneficiaries of additional data, although sales and UI performance never necessitate the deployment of facial recognition tech. It’s only the latter — the stuff Invenda and its clients want — that can’t be gathered by anything other than cameras and tech that phone home with conjecture about age and race as determined by yet another company’s facial recognition tech.
According to the statement provided by Adaria, the machines (and the hidden tech) do not “take or store” photos of customers. Supposedly the tech acts like a motion sensor, doing nothing more than informing the machine that someone intends to make a purchase.
But a motion sensor is way different than a camera with facial recognition tech attached. While it might be useful to add something that can differentiate between someone standing in front of the machine, rather than someone just near it or passing it, there have been enough advancements in motion detection to accomplish this without the addition of facial recognition tech.
So, this excuse isn’t all that credible, even if it may truthfully portray Adaria’s relationship to its machines and its apparent data obligations to the manufacturer of the goods located in its vending machines.
Invenda’s statement makes it clear Adaria either doesn’t completely understand what’s going on, or has been forbidden to discuss further details as part of its agreement with Invenda.
As the producer of the Invenda loT solution, the Invenda smart vending machine, and its associated software, we formally warrant that the demographic detection software integrated into the smart vending machine operates entirely locally. It does not engage in storage, communication, or transmission of any imagery or personally identifiable information. The software conducts local processing of digital image maps derived from the USB optical sensor in real-time, without storing such data on permanent memory mediums or transmitting it over the Internet to the Cloud.
They go on to say:
It is imperative to note that the Invenda Software does not possess the capability to recognize any individual’s identity or any other form of personal information.
If we take this at face value, the facial recognition tech generates a demographic guess, stores it locally, and discards the images used to make this determination. All well and good. But storing it locally doesn’t make much difference overall, since it appears Invenda still harvests this data, even if it requires the deployment of techs to machines to collect it. It sounds like a GDPR workaround that allows Invenda to claim it’s not collecting this data remotely or storing it somewhere else than the location where it’s being collected.
That still doesn’t explain why Invenda now believes it’s essential its vending machines attempt to determine the demographics of customers. It also doesn’t explain why anyone involved in this — from Invenda to Adaria to the contractor hired to place machines on campuses — have failed to clearly inform vending machine customers this tech has been added to devices most people logically assume do nothing more than exchange goods for money.
As the student paper sums up succinctly:
No one needs M&M’s cameras.
These companies got along without this tech for the entirety of their existence. M&M/Mars has managed to turn a steady profit for more than a century without needing to harvest (supposedly anonymized) demographic data via surreptitious deployments of tech many people rightfully do not trust.
The fact that these companies are doing it now might only suggest an ever-increasing thirst for data — something that’s understandable as profit margins narrow and more competitors enter the market. That they couldn’t be bothered to be upfront about suggests the entities involved are well-aware these deployments would not have been welcomed by their customers. So, they chose to sneak it in, hoping no one would find out until this particular Overton window passed the inflection point.
But, they got caught — sold out by their own defective software and its far too transparent error message. And, now, they’re losing customers. As the paper reports, the machines infected with this AI are being removed from campus. I guess everyone on the other side of this food chain had better hope the (supposedly) locally collected data was worth it. And now everyone, everywhere will be deploying more side-eye than money to vending machines.
On Monday, the Supreme Court heard the oral arguments over both Florida and Texas’ social media content moderation laws.
Even though the issues were similar, and the parties challenging both laws (NetChoice and CCIA) were the same (and had the same lawyer, Paul Clement, argue both cases), the laws are somewhat different, and so each was heard separately. The Florida case went first, and the Texas case went after. Roberts even jokingly pretended to be surprised to see Clement again, and Clement kicked off the Texas part by laughing and noting he wouldn’t pretend that they hadn’t all just been in the room debating the Florida law.
You can also read plenty of articles summarizing what happened. I think Professor Eric Goldman’s summary is the most useful (and succinct) of those I’ve seen so far:
Today, the Supreme Court heard oral arguments in First Amendment challenges against the Florida and Texas laws. The laws mostly baffled the justices due to the indeterminacy of who the law reaches and which functions are regulated (justices called the laws “sprawling,” “broad,” and “unspecific”). Because the laws are so complex and baroque, the justices aren’t sure if they can decide now that every aspect of the laws are unconstitutionally infirm. It seemed clear from the justices’ questions that at least some parts are, but the justices also struggled with functionalities at the margins (such as ridesharing or email) that may or may not be within the law’s scope. The court’s opinions will surely contain caveats and hypotheticals that will inspire regulators to make further attempts to censor the Internet, even if the court rules decisively for NetChoice on every issue.
Everyone always wants to ask for predictions after oral arguments, but as always, I think reading the tea leaves from the questions asked during oral arguments is an impossible task. I’ll say that I came out of it ever so slightly optimistic. As Goldman noted, enough of the Justices seemed to recognize that something here was deeply unconstitutional under the First Amendment, though they had some questions regarding how far that took them. And that could lead to a weird (and potentially problematic!) ruling that creates a mess.
To me, what the oral arguments turned up was that there was a clear road to getting this right and some Justices (Kavanaugh, mainly, but others too) seemed to get it. But there were a ton of potholes on that road, and I’m not sure if the lawyer for NetChoice/CCIA did enough to pave over all those potholes to stop at least five justices from tripping over one of them.
I won’t predict beyond that, though. We have a few months to go before we learn how the internet will fare.
He came back to these issues multiple times, but here was his opening set of questions to Florida’s Solicitor General:
JUSTICE KAVANAUGH: Can I — can I ask you about a different precedent, about what we said in Buckley? And this picks up on the Chief Justice’s earlier comment about government intervention because of the power of the social media companies. And it seems like, in Buckley, in 1976, in a really important sentence in our First Amendment jurisprudence, we said that “the concept that the government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” And that seems to be what you responded with to the Chief Justice.
And then, in Tornillo, the Court went on at great length as well about the power of then newspapers, and the Court said they recognized the argument about vast changes that place in a few hands the power to inform the American people and shape public opinion and that that had led to abuses of bias and manipulation. The Court accepted all that but still said that wasn’t good enough to allow some kind of government-mandated fairness right of reply or anything.
So how do you deal with those two principles?
MR. WHITAKER: Sure, Justice Kavanaugh. First of all, if — if you agree with me with our front-line position that what is being regulated here is conduct, not speech, I don’t think you get into interests and scrutiny and all that. I do think that the law advances the — the First Amendment interests that I mentioned, but I think the — the — the — that interest, the interest that our law is serving, if you did get to a point in the analysis that required consideration of those interests, our interests —
JUSTICE KAVANAUGH: Do you agree then, if speech is involved, that those cases mean that you lose?
MR. WHITAKER: No, I don’t agree with that, and — and the reason I don’t agree with that is because the interests that our law serve are — are legitimate, and it’s — it’s hard because different parts of the law serve different interests. But I think the one that — that sounds in the — in your concern that is most directly implicated would be the hosting requirement applicable to journalistic enterprises.
So one provision of the law says that the platforms cannot censor, shadow ban, or deplatform journalistic enterprises based on the content of their publication or broadcast. And that serves an interest very similar to the interest that this Court recognized as legitimate in Turner when Congress imposed on cable operators a must-carry obligation for broadcasters.
And — and just as a broadcaster — and what the Court said was there was not just a legitimate interest in promoting the free dissemination of ideas through broadcasting, but it was indeed a — a compelling interest, a highly compelling interest. And so I think the journalistic enterprise provision serves a — that very similar issue.
But there are also other interests that our law serves. For example, the consistency provision, Your — Your Honor, is really a consumer protection measure. It — it’s sort of orthogonal to all that. The consistency provision, which is really the heart of our law, just says to the — the platforms: Apply your content moderation policies consistently. Have whatever policies you want, but just apply them consistently.
JUSTICE KAVANAUGH: Could the government apply such a policy to publishing houses and printing presses and movie theaters about what they show? Bookstores, newsstands?
MR. WHITAKER: No, no —
JUSTICE KAVANAUGH: In other words, be consistent in what kinds of content you exclude? Could that be done?
MR. WHITAKER: I — I don’t think so, Your Honor.
JUSTICE KAVANAUGH: And why not?
MR. WHITAKER: Well — well, I think that there is — the consumer — here, the — the social media platforms, their terms of service, their content moderation policies are really part of the terms under which they are offering their service to users. I don’t think that that really — that that paradigm really fits in what Your Honor is — is talking about. So — but I — but, look, we agree, we certainly agree that a newspaper, a book — and a bookstore is engaging in inherently expressive conduct. And our whole point is that these social media platforms are not like those.
That seems like a pretty direct line of questioning and a very weak response from Florida’s SG Whitaker. The bit at the end where he tries to distinguish social media from a newspaper or a book store is just… kind of pathetic?
I also thought that Justice Kagan highlighting the fact that when Elon Musk took over Twitter and changed the rules, some people liked it and some didn’t, which (as our own article by Corbin Barthold pointed out) completely undermines the states’ arguments:
JUSTICE KAGAN: Do you think so as to this — here, this is a real-world example. Twitter users one day woke up and found themselves to be X users and the content rules had changed and their feeds changed, and all of a sudden they were getting a different online newspaper, so to speak, in a metaphorical sense every morning, and a lot of Twitter users thought that was great, and a lot of Twitter users thought that was horrible because, in fact, there were different content judgments being made that was very much affecting the speech environment that they entered every time they opened their app.
Also great was Sotomayor at the very end of the Florida argument (some of her earlier questions struck me as slightly weird) who went pretty strong on the key First Amendment issues:
JUSTICE SOTOMAYOR: I have a problem with laws like this that are so broad that they stifle speech just on their face, meaning I think that’s what the government’s been trying to say.
If you have a particular type of speech that you want to protect against or — or promote, it would be one thing to have that kind of law, but we have a company here, Discourse, who’s also a direct messaging app.
And there’s no question that your law covers them, but they tell us that their whole business model is to promote themselves to a particular message and groups of messages. So they’re not doing it indiscriminately. You’re basically saying to them, if they’re out there and they’re a common carrier, they can’t have this — this kind of business model.
Also fun was when Florida tried to rely on Rumsfeld v. FAIR and Roberts (who wrote that opinion) basically shot down the argument immediately, leading Florida’s SG to try to argue with the guy who wrote the decision that he was interpreting it incorrectly (though he admitted that was probably a mistake while he was doing it):
WHITAKER: But even more broadly than that, I mean, we know that mere — the — the fact that a hosting decision is idealogically charged and causes controversy can’t be the end of the game because I think Rumsfeld versus FAIR would have had to come out the other way then, because, in Rumsfeld, certainly, the law schools there felt very strongly that the military were being bigots and they didn’t want them on campus.
And yet this Court did not look to the idealogical controversy surrounding those decisions. Instead, it looked at objectively whether the law schools were engaged in inherently expressive conduct.
CHIEF JUSTICE ROBERTS: Well, it looked at the fact that the schools were getting money from the federal government and the federal government thought: Well, if they’re going to take our money, they have to allow military recruiters on the campus. I don’t think it has much to do with the issues today at all.
MR. WHITAKER: Well, Mr. Chief Justice, it’s difficult for me to argue with you very much about what Rumsfeld versus FAIR means.
(Laughter.)
MR. WHITAKER: But let me just take a crack because, I mean, I — I think, as I — as I read your opinion for the Court, you didn’t rely, actually, on the funding aspect of the case to reach the conclusion that what was going on there was not First Amendment protected conduct. You were willing to spot them that the — the — the question would be exactly the same if it were a direct regulation of speech as opposed to a funding condition.
Now… for some of the weirder/crazier/more problematic bits.
There were, unfortunately, but not surprisingly, some ridiculous commentary about Section 230. Justice Thomas continues to get the law exactly backwards.
JUSTICE THOMAS: I’ve been fortunate or unfortunate to have been here for most of the development of the Internet.
(Laughter.)
JUSTICE THOMAS: And the argument under Section 230 has been that you’re merely a conduit, which it — exact — that was the case back in the ’90s and perhaps the early 2000s. Now you’re saying that you are engaged in editorial discretion and expressive conduct. Doesn’t that seem to undermine your Section 230 arguments?
Of course, that’s literally exactly backwards. The whole point of 230 was that websites and web forums were not passive conduits. If they were, they wouldn’t need Section 230’s protections from liability when they did moderate. The whole reason that 230 was written in the first place was because internet forums realized they needed to moderate those who violated their rules, and that would be impossible under a Stratton Oakmont v. Prodigy result where anything you left up you became liable for.
Thankfully, the lawyer for the platforms responded correctly:
MR. CLEMENT: With respect, Justice Thomas, I mean, obviously, you were here for all of it. I wasn’t here for all of it. But my understanding is that my clients have consistently taken the position that they are not mere conduits. And Congress, in passing Section 230, looked at some common law cases that basically said, well, if you’re just a pure conduit, that means that you’re free from liability. But, if you start becoming a publisher, by keeping some bad conduct out — content out, then you no longer have that common law liability protection.
And as I understand 230, the whole point of it was to encourage websites and other regulated parties to essentially exercise editorial discretion to keep some of that bad stuff out of there, and as a result, what Congress said is — they didn’t say: And you’re still a conduit if you do that. No, it said: You shouldn’t be treated as a publisher, because Congress recognized that what my clients were doing would, in another context, look like publishing, which would come with the kind of traditional defamation liability, and they wanted to protect them against that precisely to encourage them to take down some of the bad material that, if these laws go into effect, we’d be forced to convey on our websites.
Ridiculously, a while later on, Thomas basically went right back to the same question:
JUSTICE THOMAS: Could you again explain to me why, if you win here, it does not present a Section 230 problem for you?
There was a lot more back and forth here and it’s not at all clear to me Thomas understands Section 230 even the tiniest amount. Which is… problematic. Especially as he’s been briefed on it quite a bit during last year’s Gonzalez case (and he even seemed to suggest he understood some of that in the Taamneh ruling which he wrote). Did he just… forget all of that?
Gorsuch also seemed to get weird on 230 at times, including suggesting (incorrectly) that the argument the platforms were making was inconsistent with their argument on 230.
JUSTICE GORSUCH: — if they’re not — if the — if the expression of the user is theirs because they curate it, where does that leave Section 230? Because the protection there, as I understood it — and Justice Thomas was making this point — was that Section 230 says we’re not going to treat you as publishers so long as you are not — it’s not your communication in whole or in part is what the definition says. And if it’s now their communication in part, do they lose their 230 protections?
He asked that question to the U.S. Solicitor General, Elizabeth Prelogar (who was very good throughout), who was there to argue mostly against the states, but for a narrower ruling that the companies wanted. Her response was to (politely) explain to Gorsuch why he was mixing up different kinds of things. In the follow-up exchange, Gorsuch made a complete nonsense comment that 230 turns companies into common carriers. Again, it does no such thing.
GENERAL PRELOGAR: No, because I think it’s important to distinguish between two different types of speech. There are the individual user posts on these platforms, and that’s what 230 says that the platforms can’t be held liable for.
The kind of speech that we think is protected here under the First Amendment is not each individual post of the user but, instead, the way that the platform shapes that expression by compiling it, exercising this kind of filtering function, choosing to exclude none of the those things above —
JUSTICE GORSUCH: Let me interrupt you there, I’m sorry, but — but I understand it’s not their communication in whole, but it’s — why isn’t it their communication in part if it — if it’s part of this larger mosaic of editorialized discretion and the whole feel of the website?
GENERAL PRELOGAR: Well, I don’t think that there is any basic incompatibility with immunizing them as a matter of Congress’s statutory choices and recognizing that they retain First Amendment protection —
JUSTICE GORSUCH: Isn’t the whole premise — I’m sorry —
GENERAL PRELOGAR: — for the First Amendment —
JUSTICE GORSUCH: — the whole premise of Section 230 that they are common carriers, that — that they’re not going to be held liable in part because it isn’t their expression, they are a conduit for somebody else?
GENERAL PRELOGAR: No, not at all, Justice Gorsuch. I think, you know, to the extent that the states are trying to argue that Section 230 reflects the judgment that the platforms aren’t publishing and speaking here, there would have been no need to enact Section 230 if that were the case.
Congress specifically recognized the platforms are creating a speech product. They are literally, factually publishers. And Congress wanted to grant them immunity. And it was for the purpose of encouraging this kind of editorial discretion. That’s the whole point of the good samaritan blocking provision, 230(c)(2)(A).
There were two more weird moments that are getting a fair bit of attention. The first was, I presume, the very first “Sir, this is a Wendy’s” moment in Supreme Court history. Except… it makes no sense. It wasn’t used (as some imagine) as a hilarious rebuttal to an off-topic rant. It was in a weird, slightly off-topic rant by Texas’ Solicitor General in response to Kavanaugh asking him how the restriction against “viewpoint discrimination” would apply to terrorist content.
Texas’s SG (for fairly obvious reasons) had no good answer and just started to ramble on, somewhat aimlessly about terrorism, and then about Orwell (who came up a few times — though here, he doesn’t really discuss Orwell beyond naming him) and then saying he originally felt the opposite as he does now about this very case, and then suddenly rambling about infrastructure, then back to Orwell, and then… just throws in a reference to the “Sir, this is a Wendy’s” meme, seemingly expecting the Justices to know what it was. Reports from in the room tell me that the Justices stared blankly at the reference (apparently they’re not as online as the rest of us), and then finally he was rescued by Justice Jackson asking a different question.
I’m posting the whole thing for the sheer cringe of it all:
JUSTICE KAVANAUGH: So when — that last clause, they can’t do it on a viewpoint basis, how does that work with terrorist speech?
MR. NIELSON: Sure. So it’s hard to say with terrorist speech because you’d have to pick the category, but assume that it is, you know, Al-Qaeda. You can’t — you could — you can’t very well say you can have the, you know, anti-Al-Qaeda but not the pro-Al-Qaeda. If you just want to say no one’s talking about Al Qaeda here, they can turn that off.
And then the last point, this is at the very end of the game, so you’ve gone through all of those things, all you have left are voluntary people wanting to talk to each other. And, I mean, people say horrible things on the telephone, and that’s — and I don’t think we’ve ever thought, well, you know what, we’re going to turn — we’re going to turn that off because we don’t want the telephone providers to be able to say — have that sort of right to — to censor.
If I may, I mean, with some hesitance, I want to talk about Orwell a little bit, and I say that with some hesitance. But my reaction coming to this case was very similar to yours. I looked at this and I’m like: Wait a minute. These are companies. They have their own rights. We don’t generally think of censorship as something from the — from private people. That’s the government.
Here’s how I came around on this. Maybe it’ll persuade you. Maybe it won’t. I came around on this to say this is something further up the food chain than that ordinary level of political discourse. This is just the type of infrastructure necessary to have any kind of discourse at all. That’s why I keep going back to the telegraph.
This isn’t, you know, the — the level of discourse where they’re making the content decisions that we make our decisions based on. This is the infrastructure that we need to have any sort of discourse at all.
So, if we say we want to have that type of infrastructure not have, you know, censorship on it, that would mean we would have to have a rapid — a massively increased federal government because it would have to control all the infrastructure. And then we would have, okay, now you can’t discriminate based on this kind of infrastructure of how things work.
That’s not — I mean, that is Orwell, right? So, for me, the answer is, for these kind of things like telephones or telegraphs or voluntary communications on the next big telephone/telegraph machine, those kind of private communications have to be able to exist somewhere. You know, the expression like, you know, sir, this is a Wendy’s. There has to be some sort of way where we can allow people to communicate —
JUSTICE JACKSON: And is that just because of the — the modern public square?
I’ve read this so many times now, and I have no idea how we got from “how does that work with terrorist speech” to “sir this is a Wendy’s.” The leading theory I’ve seen online is that the SG had a bet going with some friends that he could slip that line into an argument. But I’d like to believe that’s too stupid to be true.
It’s possible he was using it as an example to say that people want places to sound off and to express themselves, as epitomized by that meme. That’s the most generous version of it I can come up with.
But… it’s silly even in that context. Because having governments like Texas force all websites to host basically all content doesn’t help with the “sir, this is a Wendy’s” situation, as it now makes every site a place where everyone can filibuster nonsense all the time, and the sites can’t do anything about it.
But, still, it’s kinda hilarious that this meme has made it to SCOTUS.
The other moment that’s getting a lot of attention for being preposterously stupid is Alito asking how much YouTube would weigh if it were a newspaper.
JUSTICE ALITO: I mean, if your — if — let’s say YouTube were a newspaper, how much would it weigh?
And, look, it is a dumb question, though not for the reasons most people think. A key part of the debate (as we’ve discussed) is which precedent is closest to this case, with a focus being on whether social media is more like a shopping mall (or a telegraph provider) or a newspaper. Because different cases could apply to either. And if (the argument goes) social media is more like a newspaper, then Miami Herald v. Tornillo applies, and the platforms win the case (easily).
Alito has made it quite clear he wants the states to win and wants the platforms to lose. He made little attempt to hide this during the arguments. So when it was his turn to talk, he wanted to attack the idea that social media was more like a newspaper. So here’s the fuller context:
JUSTICE ALITO: So you say this is just like a newspaper, basically. It’s like the Miami Herald. And the states say no, this is like Western Union. It’s like a telegraph company.
And I — I think — I look at this and I say it’s really not like either of those. It’s worlds away from — from both of those. It’s nothing like a newspaper. A newspaper has space limitations, no matter how powerful it is. It doesn’t necessarily have the same power as — as some of your clients. But put that aside.
Newspapers overtly send messages. They typically have an editorial. They may have an editorial 365 days a year or more than one. But that’s not the situation with even the most prominent of your clients. So I don’t know how we could decide this case by saying — by jumping to one side or the other of this case law.
MR. CLEMENT: Well, Justice Alito, let me offer two thoughts. One, this isn’t the first time you’re wrestling with the Internet. You wrestled with it in Reno. You wrestled with in last term in 303 Creative. And I think the gist of those cases is this is more like the newspaper or the parade organizer than it is like a common carrier.
And then as to the cases, whether you think that this is different from a newspaper, I mean, the arguments that you’re pointing to say this is different are the arguments that those cases wrestled with and said didn’t matter.
So I know you know this, but in Tornillo, it — you know, there was all this language about it being a monopolist, and that was in the context of a local political election where if you couldn’t get into the Miami Herald, like, where else were you going to go? And yet, this Court said that didn’t matter. And the — the — also in Tornillo this Court said, yes, face the constraints, there are some, but our decision doesn’t turn on that. And then in Hurley, there’s a lot of language in the — in the Court’s opinion that says, you know, this is not like much of a message and they let some people show up even if they get their, like, the day of, and the only thing they’re doing is, like, excluding this group.
But, of course, the exclusion was the message that they were sending, and it’s the message the state was trying to prohibit. And that’s kind of the same thing here, which is —
JUSTICE ALITO: I mean, if your — if — let’s say YouTube were a newspaper, how much would it weigh?
(Laughter.)
MR. CLEMENT: Well, I mean, it would — it would — it would weigh an enormous amount, which is why, in order to make it useful, there’s actually more editorial discretion going on in these cases than any of — other case that you’ve had before you.
Because, you know, people tend to focus on the — on the users that get knocked off entirely and end up on the cutting room floor, but both these statutes also regulate the way that these social websites — they — they sort of get you down to something that’s actually usable to an individual user.
And, in fact, if you tried to treat these entities like a true common carrier, so first in, first out, just order of, you’d open up one of these websites and it would be gobble-dy-gook. Half of the stuff wouldn’t even be in a language you understood. And even if you controlled for that, you’d get all this garbage you didn’t want.
So, in context, it doesn’t seem quite as “holy shit, was Alito high?” as some people are making it out to be. He’s trying to highlight why social media is different from newspapers, and the dumb idea that sprung to mind was to highlight how much larger social media is than any newspaper.
But it’s still dumb. Because it actively works against the point he thinks he’s making: that we can’t treat social media like a newspaper because it doesn’t have the space limitations of a newspaper. But that wasn’t the reasoning in Tornillo. And, as both Justices Sotomayor and Barrett pointed out during the Florida arguments, whether or not there are space limitations doesn’t much matter because there are “constraints of attention.” Barrett summed it up nicely:
I mean, Justice Sotomayor pointed out that even though there may not be physical space constraints, there are the — the constraints of attention, right? They have to present information to a consumer in some sort of organized way and that there’s a limited enough amount of information that the — the consumer can absorb it.
And don’t all methods of organization reflect some kind of judgment? I mean, could you tell — could Florida enact a law telling bookstores that they have to put everything out by alphabetical order and that they can’t organize or put some things closer to the front of the store that they think, you know, their customers will want to buy?
Even if he thought he was making a point that YouTube is vastly larger than a newspaper, it doesn’t help his underlying argument, because… so what? The size of the venue doesn’t much matter. There’s still editorial discretion happening.
So, rest assured, folks who saw that quote and thought Alito had completely lost his marbles. No such luck. It was just stupid in the more usual sense of Alito misunderstanding the law, not the nature of bits vs. atoms in the storage of information.
Back in October, Walled Culture wrote about the grandly named “Piracy Shield”. This is Italy’s new Internet blocking system, which assumes people are guilty until innocent, and gives the copyright industry a disproportionate power to control what is available online, no court orders required. Piracy Shield went live in December, and has just issued its first blocking orders. But a troubling new aspect of Piracy Shield has emerged, reported here by TorrentFreak:
A document detailing technical requirements of Italy’s Piracy Shield anti-piracy system confirms that ISPs are not alone in being required to block pirate IPTV services. All VPN and open DNS services must also comply with blocking orders, including through accreditation to the Piracy Shield platform. Google has already agreed to dynamically deindex sites and remove infringing adverts.
This is no mere theoretical threat. The VPN (Virtual Private Network) service AirVPN has just announced that it will no longer accept users residing in Italy. As AirVPN explains:
The list of IP addresses and domain names to be blocked is drawn up by private bodies authorised by AGCOM (currently, for example, Sky and DAZN). These private bodies enter the blocking lists in a specific platform. The blocks must be enforced within 30 minutes of their first appearance by operators offering any service to residents of Italy.
There is no judicial review and no review by AGCOM. The block must be enforced inaudita altera parte [without hearing the other party] and without the possibility of real time refusal, even in the case of manifest error. Any objection by the aggrieved party can only be made at a later stage, after the block has been imposed.
As a result, AirVPN says it can no longer offer its service in Italy:
The above requirements are too burdensome for AirVPN, both economically and technically. They are also incompatible with AirVPN’s mission and would negatively impact service performance. They pave the way for widespread blockages in all areas of human activity and possible interference with fundamental rights (whether accidental or deliberate). Whereas in the past each individual blockade was carefully evaluated either by the judiciary or by the authorities, now any review is completely lost. The power of those private entities authorized to compile the block lists becomes enormous as the blocks are not verified by any third party and the authorized entities are not subject to any specific fine or statutory damage for errors or over-blocking.
That’s a good summary of all that is wrong with Piracy Shield. Companies can compile block lists without any constraint or even oversight. If the blocks are unjustified, there are no statutory damages, which will obviously encourage overblocking. And proving they are unjustified is a slow and complex process, and only takes place after the block has been effected.
What is particularly troubling here is that Italian residents are now losing access to a popular VPN as a result of this new law. In a world where privacy threats from companies and governments are constantly increasing, VPNs are a vital tool, and it is crucial to have a range of them to choose from. The fact that AirVPN has been forced to discontinue this service for people in Italy is a further demonstration of how here, as elsewhere, copyright is evidently regarded by the authorities as more important than fundamental human rights such as privacy and security.
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Earlier this year, we wrote about outspoken financier Bill Ackman’s threat to sue Business Insider over articles regarding accusations by the publication that Ackman’s wife, Neri Oxman, had plagiarized parts of her dissertation years ago. The timeline and context of what happened here is important because Ackman continues to ignore it.
Ackman got upset about activity by students at his alma mater, Harvard, in response to the Hamas attacks on Israel on October 7th. He then helped orchestrate a campaign to oust Harvard’s new President, Claudine Gay, because of what he viewed as her insufficient response to antisemitism on campus. While those initial efforts went nowhere, the situation gained more attention when some nonsense peddlers of the grifter class found examples of what they called plagiarism, but which many academics felt were inadvertent errors in weak paraphrasing, or inadvertent failure to properly cite sources.
For example, one of the people Gay was accused of plagiarizing came to her defense, noting that while it may have been technically improper, it was over minor bits and not the heart of what she was writing:
The plagiarism in question here did not take an idea of any significance from my work. It didn’t steal my thunder. It didn’t stop me from publishing. And the bit she used from us was not in any way a major component of what made her research important or valuable.
So how serious a violation of academic integrity was this?
From my perspective, what she did was trivial—wholly inconsequential. That’s the reason I’ve so actively tried to defend her.
This effort continued for some time, with Ackman again being a leading voice, perhaps recognizing that what he failed to accomplish by complaining about her handling of antisemitism, he could eventually accomplish through piling on and promoting the claims of plagiarism. And it worked. Soon after, Gay lost her job as President of Harvard.
Around that time, Business Insider published its first piece about Neri Oxman, Ackman’s wife, noting that her dissertation at MIT was also found to contain some plagiarized passages. The article was pretty explicit that it was not accusing Oxman of some inherent unethical behavior, but rather noting the similarities between what she had done and what Gay had done:
Like Oxman, Gay was found to have lifted passages from other academics’ work without using quotation marks while citing the authors.
Gay’s plagiarism was seen by some academics, including many of those she plagiarized, as relatively inconsequential.
George Reid Andrews, a history professor at the University of Pittsburgh and one of the people Gay plagiarized, told the New York Post that what Gay did “happens fairly often in academic writing and for me does not rise to the level of plagiarism.”
That is, the entire point of the article was to highlight the parallel situations between Gay and Oxman. It was to emphasize that inconsequential copying or inadvertent failure to properly cite something minor in an academic paper happens all the time.
The point was not that Oxman was terrible. The point was to highlight Ackman’s double standard. Indeed, Business Insider wrote an entire article comparing the accusations against both Gay and Oxman while highlighting Ackman’s noticeably different approach to each.
“Part of what makes her human is that she makes mistakes, owns them, and apologizes when appropriate,” he wrote in a post on X following Business Insider’s report on Oxman’s plagiarism.
That’s a starkly different approach from the one he took toward Gay after she stepped down as president earlier this week. At the time, Ackman said she should be fired from Harvard’s faculty entirely because of what he called “serious plagiarism issues.”
“Students are forced to withdraw for much less,” he posted on X. “Rewarding her with a highly paid faculty position sets a very bad precedent for academic integrity at Harvard.”
However, the instances of Oxman’s and Gay’s plagiarism have more similarities than differences, according to experts and an internal analysis.
At no point that I’ve seen in this ongoing ordeal has Ackman acknowledged that. Rather, he has gone on rant after rant after rant, combined with threats to sue people for their free speech (while pretending to be a free speech absolutist), pretending that the point of the Business Insider articles was to smear Oxman to punish Ackman for his support of Israel.
A few weeks ago, Ackman promised to sue and has hired Libby Locke of the firm Clare Locke to issue a massive (and massively ridiculous) threat letter to Axel Springer/Business Insider, demanding corrections and retractions of various articles. It’s a Gish gallop of a threat letter. Responding to every single bit of nonsense in the threat letter is beyond the scope of my time, and even so this article is going to be ridiculously long.
Just as an aside, no one who hires Clare Locke is a “free speech absolutist.” Clare Locke (and especially partner Libby Locke) are immensely proud of their ability to threaten media outlets to kill stories (and they’re not as effective as their media portrayal would have you believe). That’s the opposite of free speech absolutists. They are speech suppressors. Their website kinda brags about this:
Sending a 77-page “demand letter” is ridiculous and suggests that you don’t have a clear ask or a clear explanation. Ackman, over on ExTwitter, admits that the letter was written on purpose to be turned into a complaint:
It will not go unnoticed that the demand letter reads remarkably similarly to the pleadings of a lawsuit. If needed, we can convert the demand letter into a complaint and file a lawsuit, which I hope is unnecessary
The letter is long, repetitive, and silly. It does not engage with the actual purpose of the Business Insider articles, to compare Gay’s inadvertent failures to cite with Oxman’s similar mistakes in a manner that highlights how Ackman’s freakout over Gay suggests a huge double standard. Instead, it opens by arguing that Business Insider and the reporters and editors who worked on these articles are antisemitic and targeted Ackman because of his pro-Israel views.
Ackman’s criticism, particularly of Claudine Gay, the former president of his alma mater, Harvard, did not sit well with Katherine Long (an Investigative Reporter at Business Insider), John Cook (Business Insider’s Executive Editor), and Henry Blodget (Business Insider’s Founder and Chairman), who have publicly expressed anti-Zionist and purportedly antisemitic views.
It then goes on at great length (and great repetitiveness) to claim that it’s not plagiarism if it wasn’t done on purpose. Really.
As confirmed by Business Insider and the common definition of plagiarism, plagiarism requires an intent to steal or defraud. Unintentional citation mistakes and honest errors are not considered plagiarism as the word is commonly understood
Now, there are two major problems with this. First of all, as noted here (but not in anything from Ackman), if that’s the case, then it appears Gay did not plagiarize either. And, again, that was the whole point of the Business Insider articles.
But, secondly, yes, you can absolutely plagiarize without intent to do so. The letter plays a very sloppy game of “use the definition we want at different times throughout our argument.” Note that even in the quote above, Locke’s letter says “as the word is commonly understood.” But… that’s not true. As commonly understood, inadvertent plagiarism… is still plagiarism. It might not be as serious. But it’s still plagiarism.
And the most incredible bit is that the letter admits that itself. Much later in the letter, it argues that Oxman couldn’t have done anything terrible because of MIT’s guidelines on plagiarism at the time. The letter, early on, states the following:
As MIT itself plainly explains in advising students of its academic standards, plagiarism “does not include honest error.” MIT also recognizes that “unintentional” plagiarism is not considered academic misconduct. In other words, honest mistakes happen, but those simple errors do not count as academic misconduct.
But, again, the whole point was that Gay appeared to have committed similar unintentional acts of plagiarism, yet Ackman demanded her head over them.
Either way, later on in the complaint letter, they show snippets from MIT’s guidebook which… read quite differently in context. They do not at all seem to be suggesting that unintentional plagiarism is not plagiarism. Rather, they seem to be stating that unintentional plagiarism is still very much plagiarism, and that’s why one should be very careful to not even engage in unintentional plagiarism. Here’s page 12 of the letter, in which it seems pretty clear that MIT is saying “don’t plagiarize, even if it’s unintentional,” but where Oxman/Ackman/Locke seem to be pretending it’s saying “meh, as long as you didn’t mean it, you’re fine.”
Notice, clearly in there, that MIT is not saying that “accidental” and “unintentional” plagiarism is fine. Both of the clips above are trying to help students understand why accidental plagiarism is still wrong and how they need to learn how to properly do academic writing by citing sources and writing up things by yourself.
Page 13 of the letter provides even more examples of this, where they seem to think it is absolving Oxman and revealing Business Insider’s ill-intent, when it really just seems to show that Oxman/Ackman/Locke don’t understand what they’re looking at:
Those are all clearly explanations for how to avoid that kind of “botched paraphrasing” which it appears both Gay and Oxman may have engaged in.
Notably, this demand letter leaves out the line right after those two screenshotted selections above, which proves that Libby Locke is omitting important context. Here, see it for yourself:
“In any event, even if the plagiarism is unintentional, the consequences can still be very painful.”
And then it explains why it might be painful:
Plagiarism in the academic world can lead to everything from failure for the course to expulsion from the college or university.
Plagiarism in the professional world can lead, at the very least, to profound embarrassment and loss of reputation and, often, to loss of employment. Famous cases of plagiarism include the historian Stephen Ambrose (accusations about six of his books have been made, most famously about The Wild Blue) and historian Doris Kearns Goodwin (who ended up asking the publisher to destroy all unsold copies of The Fitzgeralds and the Kennedys). Such plagiarism may be accidental, but its consequences are the same as for intentional plagiarism.
The threat letter leaves out all of this context and seems to pretend that MIT is suggesting that such unintentional plagiarism is fine. When the very document they’re quoting from says the exact opposite.
And what’s funny is that throughout the 77-page letter, Locke keeps insisting that omissions by Business Insider that distort the meaning of things are clearly defamatory and/or evidence of actual malice. Yet Locke engages in identical behavior.
The next page of the letter actually drives this point home (though again, the letter’s author does not appear to recognize this) by including a screenshot of the MIT Academic Integrity handbook that explains how to avoid “inadvertent plagiarism.”
All of that undermines Oxman’s argument, but the letter seems to think it boosts it. That’s because it confuses what counts as “research misconduct” with what counts as plagiarism. Looking at the MIT documents in context suggests that they are talking about two different things: what counts as plagiarism (which could include accidental or inadvertent copying and missed citations) and what counts as misconduct for which sanctions make sense, which requires intent.
But none of that really matters for the point that the Business Insider piece was trying to make: comparing Gay’s conduct (which Ackman insisted was a horrible, fireable offense) to Oxman’s (which Ackman continues to insist was no big deal).
On the very next page of the letter, it (falsely) suggests all this proves that Oxman’s “inadvertent” failure to properly cite somehow was not problematic. Even as the very documents they screenshot say the literal opposite. It also claims that “quoting one part of an article without quoting another part which might tend to qualify or contradict the quoted part is evidence of actual malice” even though that’s the same thing this letter does in this very section.
Business Insider’s purpose in excluding references to these portions of MIT’s Academic Integrity Handbook and academic misconduct policies in its articles on Dr. Oxman is clear: Including them would have debunked the notion that Dr. Oxman had committed intentional plagiarism and academic fraud, and Business Insider wanted to create the false impression that Dr. Oxman committed intellectual theft.
Business Insider’s wholesale omission of MIT’s policies and procedures contradicting its preconceived narrative was deliberate, and it is further evidence of Business Insider’s actual malice towards Dr. Oxman and Ackman. Indeed, the law holds that “quot[ing] one part of an article without quoting another part which might tend to qualify or contradict the part quoted” is evidence of actual malice. Goldwater, 414 F.2d at 336; see also Eramo, 209 F. Supp. 3d at 872 (“[D]isregard[ing] contradictory evidence” is supportive of actual malice.); Murray, 613 F. Supp. at 1285 (“It would be unjust and nonsensical to allow the defendant to rely on the report for certain purposes and to ignore it for others.”).
Once again, it’s unlikely that anyone with half a brain reading the BI pieces would think they were accusing Oxman of anything particularly nefarious. They were simply comparing what she had done to what Gay had done and noting the similarities.
There’s so much more that’s silly about this threat letter that there’s no way to go through it all, so I’m going to skip some of it and give highlights of other parts.
There’s an entire section whining about the use of the word “marred” in one of BI’s headlines, claiming that because it was only inadvertent, it couldn’t have been “marred.” I shit you not:
Given that the only instances of alleged plagiarism Business Insider identified in this article were only four paragraphs with eight missing quotation marks and one instance in which Dr. Oxman failed to cite an author she cited extensively elsewhere in her 330-page dissertation, it is wildly inaccurate to characterize her dissertation as “marred” (i.e., ruined or spoiled) “by plagiarism.”
Except they’re using a… weird definition of marred. It’s most commonly “damaged or spoiled to a certain extent; made less perfect.” As such, even small defects (such as those described) sure would seem to count as marred. My articles are often marred by typos, but that doesn’t mean that every word is a typo. And, either way, the use of the word “marred” is, in no world, anywhere close to the standards of defamation.
Then we get to the whole “citing Wikipedia” nonsense. Ackman had argued on ExTwitter back when this first came about that at the time of Oxman’s dissertation Wikipedia was still new and there weren’t general agreements on citing it, but that’s… nonsense. On multiple levels. First off, it wasn’t that new. Wikipedia was widely known and widely used at that point. Second, even if there wasn’t agreement on how to cite Wikipedia, that did not change the simple fact that it was still very much widely considered plagiarism to copy directly from it without citation/quotation. The lack of understanding of how to cite Wikipedia is a separate issue from the question of copying without attribution.
I had thought that once a lawyer got their hands on this fight, this argument would die a sudden death, but apparently the law firm of Clare Locke has no problem pushing totally specious arguments, because that makes it in here too:
Business Insider, however, intentionally omitted that MIT’s Academic Integrity Handbook at the time Dr. Oxman wrote her dissertation in 2009 and 2010 did not address—much less require— citation to Wikipedia, which itself is a collaborative resource with no single author to whom ideas could be attributed, and which at the time of her dissertation was of relatively nascent origin. In fact, Wikipedia was so inchoate that MIT had not yet developed or published any guidance on how researchers should use Wikipedia. Only later—several years after Dr. Oxman’s dissertation was published—did MIT revise its Academic Integrity Handbook to include a prohibition on citing Wikipedia for academic work. In 2009 and 2010, when Dr. Oxman wrote her dissertation, no such prohibition existed.
Note the shift here between citing and copying without attribution. Those are two separate things that this letter seeks to conflate. Even if MIT hadn’t published policies on how to cite Wikipedia, it has zero impact on whether or not copying directly from Wikipedia might be considered plagiarism. It still was. And it’s ridiculous to suggest that people didn’t think that to be the case in 2010.
There’s a whole section complaining that BI could not possibly call out Oxman for plagiarism unless it did an “inquiry or investigation into Dr. Oxman’s mental state to support such a finding.” To which I will just say… did Bill Ackman conduct such an “inquiry or investigation into Dr. Gay’s mental state” to support the many statements he made about her alleged plagiarism?
Or do we just admit that the billionaire gets to live by different standards than he seeks to impose on others?
After BI published its initial article, Oxman posted some tweets admitting that she had failed to properly put quote marks in certain sections:
Any reasonable read of this is that Oxman is admitting to not quoting things she should have quoted, which… is plagiarism, even by the definitions that were quoted earlier in the threat letter. Thus, BI published a new article saying that she admitted to plagiarism. The threat letter is apoplectic in insisting that she didn’t admit to plagiarism, and only to omitting quotation marks, which is fucking crazy.
Shortly after the first article was published at 2:28 PM on January 4, Dr. Oxman acknowledged in a post on X that, in “four paragraphs” of her 330-page dissertation, she did not “place the subject language in quotation marks, which would be the proper approach for crediting work,” and in one sentence she paraphrased an author but inadvertently did not cite him. She apologized for these errors. She did not, however, admit to plagiarism, intentional or otherwise. Three hours and 30 minutes later, Business Insider published a follow up article falsely claiming in its inflammatory headline that “Neri Oxman admits to plagiarizing in her doctoral dissertation after BI report.”91
Business Insider knew that when it published this article that its statement was false— Dr. Oxman had not admitted to plagiarism. Business Insider read and included a link to Dr. Oxman’s post in the article, but it purposefully mischaracterized Dr. Oxman’s post in the headline creating the false impression that Dr. Oxman had admitted to intellectual theft.
I’m still amazed at the chutzpah here. I’ve read Oxman’s tweet multiple times, and it’s pretty clear that she is admitting to plagiarism, though saying it was inadvertent. But, again, (1) inadvertent plagiarism is still considered plagiarism (including by MIT) and (2) it’s the same sort of thing that Dr. Gay was accused of, which was the whole point of BI’s efforts.
There’s another whole section on all of the Jeffrey Epstein stuff which I won’t get into (Oxman had a very, very distant connection to Epstein via the MIT Media Lab where she worked, and which Epstein infamously had donated money to, though apparently unrelated to her work). But the letter (which I’ll note claims to be on behalf of Oxman and not Ackman) whines quite a bit about BI stating that Ackman had sought to “pressure” then Media Lab director Joi Ito not to name Oxman in response to a media inquiry. It also whines about BI’s claiming that the Boston Globe had “uncovered” emails between Ackman and Ito, when (according to this letter) Ackman had sent them willingly to the Boston Globe.
But, the emails he forwarded sure do look like “pressuring” Ito. I guess it depends on your definition of “pressure” but the entire point of the email was asking Joi not to name Oxman and giving a bunch of reasons why he shouldn’t. That sure sounds like it meets one of the common definitions of pressure: “the act of trying to persuade or force someone to do something.” The threat letter, instead, seems to think “pressure” must involve threats of some kind, which… is not what the word means. And, remember, the threat letter itself talks about the use of “common definitions” (quoted above).
The letter says that Business Insider “falsely” claimed that Oxman and Ackman (who again, the letter does not purport to represent) “did not dispute the facts” in the BI articles, and then points out that this is false, because… of Ackman’s silly rant about citing Wikipedia:
In just one example, at 9:57 PM on January 5, just a few hours after Business Insider published its article falsely accusing Dr. Oxman of plagiarizing from Wikipedia and other sources, Ackman posted on X disputing that using Wikipedia for definitions is plagiarism. He asked rhetorically, “How can one defend oneself against an accusation of plagiarizing Wikipedia … Isn’t the whole point of Wikipedia that it is a dynamic source of info that changes minute by minute based on edits and contributions from around the globe? Has anyone (other than my wife) ever been accused of plagiarism based on using Wikipedia for a definition?” 110 Among other challenges to Business Insider’s reporting, Ackman directly disputed the notion that Dr. Oxman’s inclusion of definitions from Wikipedia in her dissertation was plagiarism.
But… that’s not disputing the facts. That’s disputing the interpretation of the facts (it’s also silly).
Much of that section is just a hilarious list of Bill Ackman not refuting any of the facts to the actual reporters or editors of the piece, but reaching out to various super rich executives somewhat associated with Business Insider, who assured him they were looking into things. That is not the same thing as “disputing the facts” to the actual journalists. That’s whining to the rich in hopes they’ll smack down the poor reporters who dared to make you look silly.
There are five (five!) pages that are just screenshots of Ackman’s (again, not officially represented in the letter) WhatsApp messages to Axel Springer boss Mathias Dopfner “disputing” the stories, but basically none of what is disputed is actual provably false statements of fact. They pretty much all appear to be differences of opinion on how things were portrayed in the BI stories. That’s not defamation. And it’s not even disputing the underlying facts — which is all BI claimed.
Hilariously, the only response from Dopfner to Ackman is a short email, which does not agree to anything that Ackman claimed. It just says “Thanks for your e-mails. Very helpful input to clarify things during the investigation” and then notes that because Ackman had announced plans to sue BI, his general counsel had (correctly) told him not to communicate with Ackman anymore:
Then we get to “actual malice.” On its website, Clare Locke declares itself “the leading defamation law firm in the United States.” I guarantee you that Libby Locke knows what “actual malice” means in the context of a defamation lawsuit. And it is not “they didn’t like the plaintiff” or “they were biased against the plaintiff.” Yet, Libby Locke seems to not care what the legal definition of actual malice is in their laughably wrong section on actual malice.
Business Insider never had any interest in journalistic integrity or the truth when reporting on Dr. Oxman. From the outset, its reporting was tainted by its progressive political bias and the desire of its anti-Zionist reporters and editors to smear a prominent, Jewish advocate and his family for speaking up against former Harvard President Gay. The Business Insider employees primarily responsible for this attack have a history of unethical conduct and have publicly expressed their anti Zionist and/or purported antisemitic views.
Beyond being fucking ridiculous, it’s also got nothing to do with actual malice. Actual malice means that the statement was made “with knowledge that it was false or with reckless disregard of whether it was false.” Also, “reckless disregard” doesn’t mean that you were just sloppy or lazy. It means that the speaker had serious doubts about the truth of the statements but published them anyway. The Supreme Court has been quite clear that it doesn’t mean biased reporting. And it doesn’t even mean mere negligence in reporting.
For there to be actual malice, BI’s reporters would have to fundamentally know (or have very strong beliefs) that what they were publishing was false, and then publish it anyway. But, they’ve (rightly) stood by their reporting. And Ackman, repeatedly, is only complaining about their interpretation of the facts, not the underlying facts themselves.
The letter then goes on to trash the reputation of Henry Blodget, BI’s founder, who had talked to Ackman early on when Ackman was first freaking out about the stories (hilariously, Blodget suggested Ackman could write for BI at one point, and in return he gets trashed). Blodget is, of course, easy to trash. He somewhat infamously settled with the SEC for publicly pumping up dot-com era stocks, while privately trashing those stocks. Some of us still remember all that.
The letter also tries (pathetically) to trash the reputations of the reporters and editors who worked on the BI stories, including digging editor John Cook’s self-admitted story about how as a teenager in the 1980s he was suspended from high school for publishing an obnoxious underground newspaper (I too published an underground newspaper in high school, and it was also obnoxious, but also I didn’t get suspended, in part because I wrote the back page of the first issue that was an entire article about how the First Amendment works, citing numerous Supreme Court cases on why the school couldn’t take action against those of us who wrote the paper… which was, perhaps, a preview of what my life was to become).
But what does that have to do with actual malice? Fuck all! It’s just Ackman burning bridges for show — and potentially as a threat to try to convince others not to report on his wife, or he’ll trash your reputation too (come at me, Bill).
The letter then moves on to misleadingly claim that Business Insider was trying to get Oxman fired. Again, this misunderstands what seemed pretty obviously to be the point of the articles: to compare Ackman’s response to the accusations around Gay as compared to his wife. The letter makes a big deal of Insider’s reporter, Katherine Long, asking in her initial email to Ackman if he expects Oxman to lose her job (Long, at the time, mistakenly believed that Oxman was still at MIT, when she had left a few years earlier):
In context, it’s obvious why Long asked this question. Since Ackman had pushed so strongly for Gay to lose her job at Harvard, it’s a kind of obvious question for a reporter to ask about Ackman’s wife (who they thought was still at MIT) given the whole point of the exercise was to showcase Ackman’s selective outrage and differential treatment of Gay compared to his wife.
But the letter treats this as an attempt to make Oxman lose her job and seems outraged. Which is fucking hilarious given Ackman’s tirades trying to get Gay fired from her job.
Business Insider’s Coverage Of Dr. Oxman Was Motivated by Its Desire To Get Dr. Oxman Fired by MIT.
Almost no one could possibly think this is what Long was trying to do. It seems blatantly obvious that she was simply seeing if Ackman felt his wife should face the same treatment that he helped engineer for Gay.
There’s also some just incredible hubris in the letter, in that it reveals Ackman petulantly demanding in text messages to Blodget that the articles be taken down while the promised investigation on the reporting occurred (which would be an extraordinary step that would have brought Streisand Effect levels of extra attention to the claims) and Ackman seems to think that BI’s refusal to accede to his demands when Blodget promised he was “working” on the issue is somehow more proof of malice (when the more sensible, and likely accurate, reason is that BI investigated, found that the story still held, and there was no reason to take it down).
There are also about eight whole pages of the letter going on (at ridiculous length) about what an amazing, brilliant, and famous person Neri Oxman is, which is hilarious since when all this started and people pointed out to Ackman that defamation against public figures involves a high bar (that high bar being the real actual malice, not the pretend one in this letter) Ackman tried to argue she wasn’t a public figure:
So, according to Bill Ackman, she’s not a celebrity academic or a public figure, but the threat letter on her behalf has eight pages lauding all of her accomplishments, awards, public exhibitions including at top museums around the world, the description in the NY Times of how she’s “a Modern-day da Vinci” and more. So, I guess they’re not even going to try to argue that she’s not a public figure.
There’s also a ridiculous number of words describing the alleged “harm” all of this has had, failing to recognize that if Ackman hadn’t made such a big deal of all of this, the story likely would have died out after a day or two as people got a good laugh at Ackman’s hypocrisy and moved on. Instead, his continued talking about it, and now sending this letter have only guaranteed that many more people are aware of all of this. If there’s any harm (and that seems unlikely) much of it should be pinned on Ackman’s inability to let this go.
On the final page of this opus, we get the “demands.”
Axel Springer and Business Insider must mitigate the damage they have caused by correcting their libelous reporting, issuing statements setting the record straight, making a sincere and meaningful public apology to Dr. Oxman and Ackman, and creating a fund to compensate other victims of Business Insider’s libelous reporting and to discourage their inappropriate conduct in the future. (Dr. Oxman is seeking no compensation for herself to make available additional resources for other victims.) Failure to take these steps will expose Axel Springer and Business Insider to substantial legal liability and will be further evidence of actual malice directed toward my client.
This is nonsense. I’m quite sure BI’s general counsel is not worried about this. Nothing in the letter indicates anything close to the level that would be defamation. The only real question — and the likely real intent of the letter — is whether or not all the rich folks that Ackman called up and texted during this whole mess, including Dopfner, Henry Kravis, and Axel Spring board member Martin Varsavsky, decide to just go along with this to hush up the mouthy rich guy so they won’t have to deal with more of this nonsense.
At this point, it’s pretty clear that Oxman (and Ackman) have no actual defamation case here. They have a lot of noise and bluster. And sometimes that’s enough to get a publication to back down (which Clare Locke seems to want you to believe they can produce in every case). But it would be a fucking shame and an embarrassment if Axel Springer/BI caved here, and would put all of its future reporting in question by showing that they could be bullied by specious, vexatious legal threats.
In Ackman’s tweet revealing this letter, he claims that he hasn’t sued first because “people we highly respect” had told him that Axel Springer was “perhaps the strongest long-term supporter of the state of Israel of any media organization, and also an important advocate against antisemitism.” What that has to do with anything in the letter, I do not know.
In the end, this is just more censorial bullshit. It’s hilarious that Ackman presents himself as a “free speech absolutist” when he’s doing this shit to seek to pressure (as it’s commonly defined!) BI into removing these stories. It misses the entirety of the point of these articles and pretends they’re about attacking Oxman, when it’s obvious to anyone outside of Ackman’s immediate sphere that the intent was to highlight the very, very different treatment Ackman gives to the accusations against Gay and Oxman.
Indeed, this very letter demonstrates that point to a much greater level. All this letter does is call that much more attention to Ackman’s disgusting double standard. When it’s someone he doesn’t like for other reasons, he’s willing to play up the plagiarism claims and push for them to lose their job. When it’s his wife, he tries to burn down an entire media outlet.
All this letter shows is that Bill Ackman is a censorial hypocrite.
As we survey the rubble that once was the U.S. journalism industry, a common refrain involves lamenting that “online journalism just isn’t profitable.” But as the recent collapse of outlets like Sports Illustrated and The Messenger illustrate, the real culprit often isn’t that journalism isn’t profitable, it’s that U.S. media is predominantly run by utterly incompetent individuals who fail upward into positions of power.
Last week’s collapse of Vice media came as no surprise given years of stories about waste and excess by a rotating crop of terrible management. Also unsurprising is that most of the postmortems (usually written by people employed in the U.S. media sector who would like to remain so and don’t want to offend ownership by being honest) involve lots of vagaries as to responsibility.
There was a lot of ambiguous finger pointing at the supposed inherent impossibility of making money in online journalism. Most breakdowns just parroted the soulless, AI-esque memo to staff by CEO Bruce Dixon without context, blaming ambiguous externalities and the supposedly unavoidable unprofitability of running a silly old website in the TikTok and Twitch era:
“As we navigate the ever-evolving business landscape, we need to adapt and best align our strategies to be more competitive in the long term...We create and produce outstanding original content true to the Vice brand. However, it is no longer cost-effective for us to distribute our digital content the way we have done previously.“
As usual, you have to go over to independent media outlets like Defector to find something vaguely resembling the truth: that Vice was run into the ground by a rotating crop of utterly incompetent trust fund failsons who created unrealistic, hype-fueled company valuations, hoovered up exorbitant salaries, implemented numerous incoherent strategy pivots, and set giant piles of money on fire on a rotating crop of increasingly stupid ideas:
“The band of worthless but extravagantly overcompensated executives who seized the Vice ship from its previous regime of worthless but extravagantly overcompensated executives have decided that the business’s new direction will be in content licensing and re-emphasized social media channels, and that’s that.”
Numerous Vice editors and staff writers were paid salaries as little as $35,000 a year in New York City (you’d find retirement or financing a home purchase easier with a career at fucking Quiznos). At the same time, executives, clearly incapable of any sort of coherent strategic vision, gobbled up massively outsized compensation not at all commensurate with their workloads or performance:
“The exorbitant pay of the executive team responsible for steering Vice Media into urgent financial disaster and thus into the hands of private equity: Vice chief communications officer Jonathan Bing took home $640,000 in salary and bonuses in the 12 months prior to Vice’s bankruptcy filing; chief operating officer Cory Haik took home $726,000; executive vice president Subrata De was paid $779,000; chief marketing officer Nadja Bellan-White hauled in $835,000.”
Even as the company was facing bankruptcy and freelancers and staffers were either fired without severance or (like myself and other Vice freelancers) watched huge segments of their incomes instantly evaporate, legal filings illustrated how Vice executives were handed $11 million dollars — for doing arguably little to nothing — from May 2022 to May 2023.
This, somehow, often gets distorted into the “unforeseen challenges facing modern online media ventures today” by a feckless press pretending to ascertain what went wrong without pissing off management.
When it comes to financing Vice journalism and keeping the lights on, the problem wasn’t the people doing the actual fucking work. Nor is it the costs of doing actual journalism. As noted previously, The equally incompetently managed The Messenger burned through fifty million fucking dollars in less than a year; enough to fund any competently managed modest newsroom for the better part of a decade.
But again, if you read most mainstream analysis of the Vice collapse, executive incompetence is either downplayed or simply nowhere to be found. Instead, the collapse of Vice, like most mismanaged modern U.S. media companies, is often left causation free, somehow the unfortunate, unforeseen consequence of ambiguous externalities in the thankless job of informing the public about factual reality online.
Hey, maybe it was all the fault of those dastardly wokes.
While Vice does have a well-earned reputation for quirky hipster engagement bait (Transhumanist Alien Ketamine!), the outlet also did oceans of excellent journalism. Especially at outlets like Motherboard, where Joseph Cox was a wrecking ball on the cybersecurity beat. Several of the sub-brand’s best editors and writers wisely smelled the looming carrion and left last year to create the excellent 404 Media.
Yes, making money in journalism is difficult. The journalism advertising market has cratered, and the public’s attention span is now fractured across an ocean of quick-dopamine-hit video apps and social media apps where mindless engagement bait is now god.
But as academics like Victor Pickard have long argued, U.S. journalism should have always been viewed as a nonprofit or minimally profitable public service in need of creative (potentially even public) funding by anybody even semi-competently interested in its long-term survivability.
Instead, a rotating crop of hedge fund bros, VCs, and bankers decided to treat an essential cornerstone of functional U.S. society like a disposable napkin. A hollow, purely extractive and self-serving pursuit of mindless engagement at impossible scale. That this brutal exploitation opened the door to abuse by authoritarians keen on undermining the very concept of a shared reality never entered their thick skulls.
At the same time, our federal media policies have been abysmal failures, with policymakers routinely turning a blind eye to mindless consolidation and the impact it has on media diversity. Efforts to create alternative funding for independent journalism have also been feckless and incoherent, never stepping close to the same priority reserved for the latest tech hype bubble or cryptocurrency scam.
The result is has been the birth of a hollow, privacy-violating, engagement-based infotainment apparatus at a scale never seen on Earth. A system where all the financial incentives point in twisted directions, drowning us in wave upon wave of automated gibberish and partisan propaganda that’s way more profitable — and more consistently financed — than journalism ever was.
Now, the same “leaders” that caused the collapse of Buzzfeed, Vice, and The Messenger want to use AI to create an even moremindless engagement ouroborus that shits out advertising money at impossible scale with an utter disregard for audience, information quality, journalism, foundational reality, or the broader public interest.
U.S. journalism isn’t entirely hopeless (though it sure felt like it last week as we all rushed to archive years of work before deletion by an extraction class utterly disinterested in preservation or history).
There are still community-driven outlets like Techdirt. There are still outstanding outlets like ProPublica genuinely interested in challenging American wealth, corruption, and power. Some journalists have found a path to profitability and building direct reader readerships through newsletters (albeit not without some ugly wrinkles). The Motherboard folks who left to form 404 Media say, strangely enough, that without a cavalcade of trust fund failsons leeching resources, their journalism should prove profitable.
But putting the future of journalism in the hands of individual newsletter authors and smaller outlets without the financial resources to fend off narcissist billionaires (virulently and routinely angry that you’ve told the truth) raises more than a few questions about scale and sustainability.
More broadly, there’s simply no financial incentive to fix or reform any of the underlying rot in an industry peppered by people who view journalism as a purely extractive profit-taking exercise. The kinds of folks that make $835,000 incompetently implementing a new hare-brained pivot every seven months in the pretense they’re helping very much like things the way they are.
So, barring some unforeseen innovation, or a transformative epiphany by those with wealth and power (a segment not always keen on independent journalism that critiques wealth and power), this is, with fleeting exception, precisely how things will remain until the wheels come completely off.
