Federal Court Blocks Washington State's Unconstitutional Cyberstalking Law

from the fixing-stupid dept

When legislators craft unconstitutional laws, it's a safe bet the first people to abuse them will be members of the government. We've seen this happen with outdated criminal defamation laws and the new wave of "Blue Lives Matter" legislation. Attempts to curb online evils like cyberbullying and revenge porn tend to disregard the First Amendment. If they're not challenged, they go on to be tools deployed by government officials to silence critics.

That's what happened in the state of Washington. A vociferous government critic found himself targeted by a displeased politician who used the state's cyberstalking law to obtain a very restrictive protective order to silence his online nemesis. As the federal court notes in its decision [PDF], the speech the critic engaged in is the very reason for the First Amendment's existence. (via Courthouse News)

Rynearson is an online author and activist who regularly writes online posts and comments to the public related to civil liberties, including about police abuse and the expansion of executive power in the wake of September 11. Rynearson’s writings are often critical—and sometimes harshly so—of local public figures and government officials. These writings are well within the traditions of independent American political discourse, and are intended both to raise the awareness of other citizens regarding the civil-liberties issues that Rynearson writes about, and to hold civic and political leaders accountable to the community through pointed criticism. This sort of expression is at the very heart of political speech which the First Amendment most strongly protects.

Rynearson's online posts were highly critical of politicians he felt didn't condemn the indefinite imprisonment of foreigners, something authorized by the NDAA (National Defense Authorization Act). One politician he felt was too enthralled with indefinite detention was Clarence Moriwaki.

[I]n February 2017, Rynearson wrote a series of public posts on Facebook criticizing Clarence Moriwaki, the founder of the Bainbridge Island Japanese-American Exclusion Memorial (“Memorial”), for failing to criticize Governor Inslee and President Obama for voting for/signing the NDAA. The thrust of Rynearson’s posts was that Moriwaki should be removed from his role as board member and de facto spokesperson for the Memorial because Moriwaki used the lessons of the internment, and his role with the Memorial, to criticize Republican politicians (chiefly, President Trump) in many media articles or appearances related to the Memorial, but failed to criticize Democratic politicians.

As the court notes, Rynearson used "invective" and "ridicule" to make his points. Moriwaki reported this ridicule (which, as the court points out, did not contain obscenity or threats) to local law enforcement. This did not result in an arrest, but Rynearson received a letter from the prosecutor notifying him she would "revisit" the possibility of prosecuting him if he didn't shut the hell up.

This also resulted in Moriwaki obtaining a protective order against Rynearson -- one that decided the First Amendment simply didn't exist.

For a period of time, from March 2017 to January 2018, Rynearson was also subject to a civil protection order imposed by the Bainbridge Island Municipal Court based on posts critical of Moriwaki. Moriwaki v. Rynearson, No. 17-2-01463-1, 2018 WL 733811, at *12 (Wash. Sup. Ct. Jan. 10, 2018). The cyberstalking statute was one of the statutes invoked by the Municipal Court in imposing the protection order. Moriwaki, 2018 WL 733811, at *5. The order imposed sharp limits on Rynearson’s speech, such as barring the use of Moriwaki’s name in the titles or domain names of webpages.

This order was vacated by the same court after Rynearson's Constitutional challenge. Now, Rynearson is challenging the law itself, pointing out (very reasonably) that the law's unconstitutional restrictions could see him on the receiving end of future protective orders or criminal charges.

The federal court says Washington's law is unconstitutionally overbroad, threatening a whole lot of protected speech.

Section 9.61.260(1)(b)’s breadth—by the plain meaning of its words—includes protected speech that is not exempted from protection by any of the recognized areas just described. Section 9.61.260(1)(b) criminalizes a large range of non-obscene, non-threatening speech, based only on (1) purportedly bad intent and (2) repetition or anonymity.

The state couldn't come up with much to defend its bad law -- just a couple of unpublished opinions that don't say quite what the state imagines they say. The federal court offers its rebuttal, which only cites the highest court in the land.

[T]he Supreme Court has consistently classified emotionally distressing or outrageous speech as protected, especially where that speech touches on matters of political, religious or public concern. This is because “in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide ‘adequate breathing space’ to the freedoms protected by the First Amendment.”

With that, the federal court declares the law unconstitutional, handing Rynearson an injunction preventing the state of Washington from using the law against him.

Based on the record before the Court it is highly likely that in the final analysis the Court will declare the provision is unconstitutional and therefore unenforceable. Anonymous speech uttered or typed with the intent to embarrass a person as here, is protected speech. The plain meaning of the italicized words render 9.61.260(1)(b) unconstitutional.

For the reasons given here, this Court concludes that RCW 9.61.260(1)(b) is facially unconstitutional.

The law is effectively dead. The only thing surprising about this is that the law has survived so long without being struck down. For 15 years, it's been illegal to "embarrass" people online. It took a politician abusing the law to silence a critic to finally get it struck down.

Filed Under: 1st amendment, cyberstalking, free speech, washington

Apple Objects To Norway Political Party's Logo Claiming Potential Customer Confusion Over Trademark

from the politics-equals-commerce? dept

Apple has a long and storied history of playing make believe that only it can, in any way, use the image of an apple in any sort of branding. Despite trademark laws around the world generally being built on the notion that branding must be used in commerce, must be in a related industry, and must cause or have the potential to cause confusion in the public, Apple's lawyers have generally demurred on the subtle aspects of these laws. This has led to disputes with small German cafes, with Chinese food manufacturers, and with pharmacies. It can be said without question that such disputes initiated by Apple are specious at best, but it can at least be said in Apple's defense that each of those cases involve a foe that was a private, commercial business.

Such is not the case when it comes to Apple's recent trademark opposition of the logo of a political party in Norway.

Bryn Aarflot, a Norway-based patent and intellectual property prosecution firm representing Apple in the matter, formally objected to Fremskrittspartiet's trademark registration in a letter dated Feb. 26. Apple claims the political party's mark could be confused with five of its own registered trademarks. Further, the logo resembles or incorporates elements of well-known, established branding and is thus in violation of Norway's Trade Marks Act.

Registered with the Norwegian Industrial Property Office last November, Fremskrittspartiet's trademark overlays stylized "FR" iconography on a large red apple, complete with black stem and green leaf. The design is reminiscent of Apple's trademark, a two-dimensional rendering of an archetypal apple silhouette.

Is it really, though? Doing a Google image search, below is about as relevant a logo as I could find for Apple Inc.

And below is the image registered by Fremskrittspartiet.

Are those logos really so similar? Even if another Apple logo that is slightly more similar exists, are they really likely to be so similar so as to cause confusion that isn't born of the fact that Apple's logo is... an apple? And if we then layer on top of that the fact that this logo is being used by a political party and not a private enterprise, then what is the validity for this opposition at all? Did the party register the mark for the kinds of goods you'd expect a political party to produce, such as buttons and t-shirts and the like? Yup. Is anyone in Norway going to think any of that indicates that Apple had endorsed this political party, or was somehow now in the political party arena? Come on.

So this now all is pending a response from Fremskrittspartiet. If that response is anything other than, "Are you freaking kidding me?", I will be sorely disappointed.

Filed Under: fremskrittspartiet, likelihood of confusion, logo, norway, trademark
Companies: apple

ICE Has Access To ALPR Databases, Bypasses Internal Restrictions By Outsourcing Searches To Local Cops

from the get-all-you-can,-then-ask-for-more dept

ICE has been wanting full access to the billions of license plate records stored in ALPR databases for years. The DHS first floated the idea more than five years ago. It was reined in briefly in response to public backlash and Congressional criticism, but the idea of a national ALPR database was never truly killed off.

ICE was the agency sending out quote requests for a national database access. A few minimal protections were put in place, but all that was holding ICE back was logistics. The contract was finalized at the beginning of last year, hooking ICE up with ALPR records gathered by the hundreds of plate readers operated by local law enforcement agencies. Now, all that third party work is paying off.

More than 80 law enforcement agencies in the US have agreed to share with US Immigration and Customs Enforcement (Ice) license plate information that supports its arrests and deportation efforts, according to the American Civil Liberties Union (ACLU), which obtained a trove of internal agency records.

The documents acquired by the ACLU show that Ice obtained access to a database with license plate information collected in dozens of counties across the United States – data that helped the agency to track people’s locations in real time. Emails revealed that police have also informally given driver information to immigration officers requesting those details in communications that the ACLU said appeared to violate local laws and Ice’s own privacy rules.

When the agency takes the formal, contracted path to ALPR data, it's running through two third parties: Vigilant, the leading manufacturer of plate readers, and Thomson Reuters, a multimedia conglomerate that has added data brokering to its portfolio of journalistic endeavors.

The original proposal limited ICE's access to the 50 biggest metropolitan areas. That's a lot of ground already, but the agreement allows local law enforcement in other areas to give ICE permission to browse their end of the Vigilant database. Not that it ultimately matters. Vigilant doesn't seem to worry too much about siloing off data. Most law enforcement agencies are sharing data with lots of other agencies already, so intermingling is an inevitability.

It also appears there's no expiration data on a lot of the data ICE is accessing. According to the documents, over 9,000 ICE agents have access to years a plate/location data, allowing them to reconstruct people's movements over a long period of time.

Whatever restrictions exist on ICE's access to Vigilant databases are easily avoided.

Emails showed that a police detective in Orange county, California, repeatedly conducted database searches in response to requests from an Ice specialist in criminal investigations. The two appear to have worked together frequently over several years, with the Ice employee providing details of the immigration investigations (such as information from a target’s Facebook page) and the local detective responding with license plate information.

“I am here for ya. :),” the detective wrote in one email to Ice, which included a report. In another exchange, after the Ice officer said “hate to ask” for more reports, the detective responded: “Come on, you don’t really hate to ask.. :).”

As the ACLU points out, these informal requests allow ICE to bypass the internal processes that are supposed to ensure access to this wealth of plate/location data is justified. The communications contained in these documents show ICE repeatedly ignoring these requirements.

At this point, everything will have to be fixed in post. Cops have been utilizing plate readers for years and Vigilant has been storing the billions of plate records generated every year for just as long. The DHS never needed to build a national license plate/location database. One was being built while it put on its little charade about respecting rights and citizens' freedom to move around the country without being surveilled.

The ACLU is demanding legislators enact more privacy protections for this data and engage in some actual oversight, but that ship has been sailing for years. ICE's access was an inevitability. It enacted privacy protections just so it could ignore them by asking local law enforcement to perform database searches. And it was all sold to the public with assurances ALPR tech would hunt down car thieves, kidnappers, and violent criminals. In reality, it's being used to track people who've overstayed their visas.

Filed Under: 4th amendment, alpr, ice, law enforcement, license plate recognition, local police, privacy

If You Think Big Internet Companies Are Somehow To Blame For The New Zealand Massacre, You're Wrong

from the big-tech-derangement-syndrome dept

I know, I know, it's cool these days to hate on the big internet companies, but people keep getting carried away with accusations that don't reflect reality. We should be able to agree that there are problems with the big internet companies (and to suggest ways to deal with them), without falling prey to easy attacks on those companies that don't make sense once you understand the details. The latest example of this "Big Tech Derangement Syndrome" came in response to last week's absolutely horrific massacre in Christchurch, New Zealand. As many have noted, the attack was almost perfectly planned to play to a certain corner of the shitposting, trolltastic parts of the internet. Indeed, the use of social media by the attacker appeared to follow a very similar model to the one that had been perfected by ISIS a few years ago.

This has, of course, resulted in a lot of hand-wringing about the role of the internet in all of this. And I do think that there are many worthwhile conversations to be had about how internet platforms promote or highlight certain content over other content (though, of course, any attempt to really deal with that will almost certainly lead to more bogus accusations of "conservative bias" on these platforms).

But what was disturbing to me was how many people focused on the fact that the various internet platforms had a tough time getting rid of all of the copies of the livestream video that was posted of the attack. I saw multiple variations on the theme that "if the internet platforms really cared about it, they could block those videos," with the clear implication being that the platforms don't take this issue seriously. A particularly ill-informed variant on this was "if this video were covered by copyright, it would have been blocked." Of course, those of us who spend lots of time talking about the failures of using filters to try to block copyright-covered content know that's not even close to true.

What surprised and disappointed me was that this even came from people who should know better. The Washington Post's Drew Harwell lead the charge with a widely retweeted thread that lamented how many internet platforms carried aspects of the attack and questioned what "responsibility" the platforms had:

Harwell, along with multiple other Washington Post reporters, then put out an article entitled The New Zealand shooting shows how YouTube and Facebook spread hate and violent images -- yet again. It seems to lay the blame squarely on the feet of the tech platforms:

Friday’s slaughter in two New Zealand mosques played out as a dystopian reality show delivered by some of America’s biggest technology companies. YouTube, Facebook, Reddit and Twitter all had roles in publicizing the violence and, by extension, the hate-filled ideology behind it.

These companies — some of the richest, most technologically advanced in the world — failed to rapidly quell the spread of troubling content as it metastasized across platforms, bringing horrific images to internet users worldwide.

This is literally blaming the messenger, and distracting from those actually responsible (the horrible, despicable excuse for a human being who carried out the attack and the awful people who cheered him on), to instead blame the tools of communication that all of use. We use them because they are convenient and powerful. And that includes for horrific messages as well as nicer ones.

Harwell's colleague at the Washington Post, Margaret Sullivan, whose views I almost always find myself nodding in agreement to, also seemed strangely out of touch on this one, insisting the platforms need to "get serious."

Editorial judgment, often flawed, is not only possible. It’s necessary.

The scale and speed of the digital world obviously complicates that immensely. But saying, in essence, “we can’t help it” and “that’s not our job” are not acceptable answers.

Friday’s massacre should force the major platforms — which are really media companies, though they don’t want to admit it — to get serious.

As violence goes more and more viral, tech companies need to deal with the crisis that they have helped create.

They must figure out ways to be responsible global citizens as well as profitmaking machines.

Another tweet, from Alex Hern, a technology reporter at the Guardian literally suggested that YouTube and Facebook need to hire a single person to keep doing searches to delete videos:

If you can't read that, it says:

it is days like today that I just do not understand why YouTube and Facebook don't hire one person--just one--to sit there searching for "New Zealand terror attack" and just delete the obvious reposts that keep popping up on that search term.

There were probably a million tweets trying to make this point in a similar way. The general theme is that the internet platforms don't care about this stuff, and that they optimize for profits over the good of society. And, while that may have been an accurate description a decade ago, it has not been true in a long, long time. The problem, as we've been discussing here on Techdirt for a while, is that content moderation at scale is impossible to get right. It is not just "more difficult," it is difficult in the sense that it will never be acceptable to the people who are complaining.

Part of that is because human beings are flawed. And some humans are awful people. And they will do awful things. But we don't blame "radio" for Hitler (Godwin'd!) just because it was a tool the Nazis used. We recognize that, in every generation, there may be terrible people who do terrible things, using the technologies of the day.

But the bigger issue is that both the scale and challenges in moderating content like this presents a much more difficult question that most people (including, apparently, tech reporters) understand. Over the weekend, Facebook noted that it had removed 1.5 million copies of the video with 1.2 million being blocked from upload entirely. That means another 300,000 had to be found, reviewed and then a call made on whether to delete it.

One person hitting search over and over again is not going to track down over a million copies (or even 300,000) of a video. That's just not how it works. Also, think about this for a second: if there were 1.5 million attempts to upload the video (just on Facebook), think how many (despicable) people are out there trying to spread this content. It is a lot more than these companies could reasonably hire or should want to hire solely for the purpose of policing the speech of those despicable individuals.

And, even if they were doing the searching, it raises other challenges. Motherboard has a good overview of how Facebook handles moderation in these circumstances, which already shows how difficult some of the challenges are. But even more interesting is a piece by Julia Alexander at the Verge explaining that there's a lot more to deleting those videos than just flagging and deleting. Alexander specifically looks at YouTube and how it handles these things:

Exact re-uploads of the video will be banned by YouTube, but videos that contain clips of the footage have to be sent to human moderators for review, The Verge has learned. Part of that is to ensure that news videos that use a portion of the video for their segments aren’t removed in the process.

YouTube’s safety team thinks of it as a balancing act, according to sources familiar with their thinking. For major news events like yesterday’s shooting, YouTube’s team uses a system that’s similar to its copyright tool, Content ID, but not exactly the same. It searches re-uploaded versions of the original video for similar metadata and imagery. If it’s an unedited re-upload, it’s removed. If it’s edited, the tool flags it to a team of human moderators, both full-time employees at YouTube and contractors, who determine if the video violates the company’s policies.

This makes sense -- and it's something we talk about in the copyright context all the time. It's one thing to flag and block exact replica videos, but if they're somewhat edited, they need to be reviewed. They could be news reporting or commentary or some other perfectly reasonable use of the video. There are also, potentially, questions about if the videos are evidence or documentation of a crime that need to be considered before just deleting things willy nilly.

And, of course, today (many days after mocking YouTube for not taking down these videos) the Washington Post comes back with some actual reporting on how much effort YouTube actually put into stopping the video and how difficult it was. Suffice it to say, they had more than one person working on this.

[Neal] Mohan, YouTube’s chief product officer, had assembled his war room — a group of senior executives known internally as “incident commanders” who jump into crises, such as when footage of a suicide or shooting spreads online.

The team worked through the night, trying to identify and remove tens of thousands of videos — many repackaged or recut versions of the original footage that showed the horrific murders. As soon as the group took down one, another would appear, as quickly as one per second in the hours after the shooting, Mohan said in an interview.

As its efforts faltered, the team finally took unprecedented steps — including temporarily disabling several search functions and cutting off human review features to speed the removal of videos flagged by automated systems. Many of the new clips were altered in ways that outsmarted the company’s detection systems.

But, either way, contrary to the arguments that the companies don't care or don't prioritize this, they absolutely do. It's just that they are dealing with an incredible level of scale, with many of the videos (at least 300,000 in the case of Facebook and one per second in the case of YouTube) likely needing to be reviewed and a judgment call needing to be made whether or not that version should be kept up or taken down. The idea that either company could just snap their fingers and fix this is pure fantasy.

Alex Stamos, Facebook's former Chief Security Officer put together a thoughtful thread on how impossible this situation is for the companies:

There's more in the thread, which is worth reading, but the short version is that this is not nearly as easy a problem to solve as many people seem to think.

And, as Stamos hints at in his thread, even as everyone was complaining about this content showing up on internet platforms, people don't seem to have had the same reaction to the fact that many in the media were spreading the same stuff. Rupert Murdoch's Sky News aired the video. Or as media analyst Thomas Baekdal noted:

Baekdal later wrote a very good thread about how wrong this attack on social media has been. He highlights how many news orgs -- at the same time they were criticizing YouTube and Facebook -- were posting screenshots or snippets of the livestream themselves, and promoting the details of the attacker's mad rantings. The whole thread is worth reading, but the conclusion is the key. By focusing the blame on the messengers -- the internet platforms -- we distract from solving real problems:

I'm sorry media people. As a media analyst, I love you. I want the media to have the best future possible. But this constant one-sided and often completely distorted form of anti-tech lobbyism is simply dishonest. Worse, by making this all about YouTube and Facebook, we mislead people into thinking that this entire problem is something that is just easily solved by just having YouTube use their copyright algorithms ... and then all the terrorist and hate speech would go away. It won't. This makes people passive, because it allows them to think that this problem is just an external one by the tech companies, so we (in society or in the media) don't have to do anything ourselves. But we do. This *is* a societal problem. We all have to step up here. Stop this one-sided anti-tech lobbyism. It's incredibly dishonest. It misleads the public, it makes the problem much harder to solve, and it tries to hide our own role. It's so frustrating to look at every day. Yes, the tech companies need to do better, but...my god...so do we!

As for the arguments, such as Sullivan's, that the "answer" to this is that social media platforms need to retain "editorial control" and review content -- as demonstrated above, that's nonsense given the scale. It's difficult enough to try to block a single video, but imagine having to go through absolutely everything. As Aaron Ross Powell noted in another good thread, just because editing works for newspapers, that doesn't make sense when we're talking about platforms for communicating among billions of people.

The Washington Post exercises editorial control, yes. But how much does it publish? A hundred new things a day? Maybe? Compared to: "Every 60 seconds on Facebook: 510,000 comments are posted, 293,000 statuses are updated, and 136,000 photos are uploaded." If those numbers are correct, that's 422 *million* status updates alone every day. How many editors would it take to exercises the Washington Post's level of control over those? Facebook's big, but not that big. You can filter profanity, yes. And other key words. You can use machine learning to help. But bad actors are good at figuring out what gets through filters. The only way to be sure is to do what the Post does: Look at everything. And at 422 million posts a day, even if only a tiny fraction of those are ultimately violence promoting, and even if only a tiny fraction of *those* make it through editorial, you've still got more than enough to radicalize the occasional murderous madman.

Social media is not traditional media. It's so much bigger and more open that you can't analogize from one to the other. It would be impossible to run social media like the Washington Post.

No matter how much people who don't grasp the difference tell us "to get serious."

And that gets to one final point I'd like to make on this. Beyond the difficulty of taking down the video/madman rantings after the fact, a few complained that the content was even allowed to be posted in the first place. The attacker clearly planned a media strategy, and that meant releasing some of the content before the attack to eager followers who cheered him on live. But if you think it's easy to spot that content in real time, you haven't spent much time on the internet. And, all of this is made even worse by the fact that a lot of online behavior is performative, rather than serious. Lots of shitposting is just that: shitposting. Recognizing where it's going to cross over into real behavior is not nearly as easy as some seem to think.

And if you argue that it shouldn't matter and we should just start shutting down people saying crazy stuff online, well, I'd suggest listening to the latest episode of NPR's Invisibilia podcast called Post, Shoot, which focuses on violence in Wilmington, Delaware, and how some of it crossed over from kids trash talking each other on Instagram. But then the story goes further, and notes that, in response, police have basically started locking up black and brown kids, claiming evidence of gang activity, for merely posting Instagram photos with guns or money. In most cases, the kids are just showing off. It's kind of a thing kids do. They're not actually gangsters, they're just pretending to be gangsters, because kids do that. But they're being locked up for posing as gangsters. And that's not helping anyone.

Social media is a reflection of reality and reality is hellishly messy. People are flawed to varying degrees, and a certain percentage are despicable, horrible people. I'd like to believe it's a small percentage, but they do exist. And we shouldn't blame the technology they use.

Filed Under: attacker, blame, christchurch, massacre, mosque, new zealand, social media
Companies: facebook, google, reddit, youtube

Daily Deal: Complete Microsoft Azure Certification Prep Bundle 2019

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

The Complete Microsoft Azure Certification Prep Bundle 2019 has four courses that will help you prepare to for the Microsoft Azure certification tests AZ-100, AZ-101, AZ-203, and AZ-300. You'll learn how to implement Microsoft Azure infrastructure solutions, how to migrate servers, hot to manage hybrid identities, and much more. The bundle is on sale for $19.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

Court Dismissed Lawsuit Brought Against Social Media Companies Alleging An Anti-Conservative Conspiracy

from the lawsuits-are-the-new-tinfoil dept

Alt-right sideshows Laura Loomer and Larry Klayman sued Twitter, Facebook, Google, and Apple for [checks filing] participating in a government-enabled conspiracy to deplatform Freedom Watch/Loomer in order to further a leftist agenda, etc. etc. ad nauseum. Their complaint alleged violations of the Sherman Act, DC's public accommodation law, and the First Amendment. In support of these allegations, the plaintiffs offered vague theories about "public platforms" and some misreadings of pertinent court precedent. (via Eric Goldman)

After a round of motions, the court has ruled in favor of everyone being sued. The decision [PDF] makes it clear none of the arguments made by the plaintiffs hold water, much less achieve complete coherence. The only thing the court agrees with is that Loomer and Freedom Watch have standing to bring the suit. But standing is only worth something when your arguments have merit.

While they have established standing, the Plaintiffs have failed to state viable legal claims. Consider first their Sherman Act arguments. Section 1 of the Sherman Act states that “[e]very contract, combination . . . , or conspiracy, in restraint of trade or commerce among the 7 several States, or with foreign nations, is declared to be illegal.” 15 U.S.C. § 1. “Independent action is not prescribed” by § 1. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 760 (1984). So a valid claim must allege that the Platforms “had a conscious commitment to a common scheme designed to achieve an unlawful objective.” Id. at 764. The Plaintiffs’ claim fails to do this.

True, the Amended Complaint repeatedly states that the Platforms have engaged in a conspiracy or illegal agreement. See, e.g., Am. Compl. 4, 5, 12, 17. But it offers only these conclusory statements to suggest the existence of such an agreement. It includes no allegations, for example, that any of the Platforms met or otherwise communicated an intent to collectively suppress conservative content.

A conspiracy requires the participation of conspirators. But some of the alleged conspirators still played ball with the plaintiffs, which undercuts the conspiracy needed to sufficiently allege antitrust violations.

The Plaintiffs also suggest that the Platforms “have engaged in ‘conscious parallelism’ and in concert mimicked each others’ refusal to deal with Freedom Watch and Ms. Loomer.” Am. Compl. 21. But Freedom Watch admits that it “has and still does pay Google and YouTube, Facebook and the other Defendants for services.” Id. at 11. This admission contradicts assertions of a coordinated “refusal to deal” with the Plaintiffs.

The complaint fares no better when dealing with the second antitrust allegation -- the supposed "monopoly" power of the [checks notes] four defendants being sued. As the court points out, the plaintiffs could have brought some data to their legal fight. Instead, they chose to bring conclusory statements and assertions about "leftist agendas."

[T]he Plaintiffs offer no market share data for any of the Platforms in either the local or worldwide markets for media and news publications. Instead, they make claims about the “social network global market,” the “social networking advertising revenue” market, the “digital ad revenues” market, and the “mobile ad market.” Am. Compl. 18. And though the Amended Complaint states that “59% of Twitter users get their news through the Twitter platform” and that “48% of all American adults [get] their news from Facebook,” it offers no support for the notion that either firm has achieved or tried to achieve monopolization of the nationwide media and news publications market.

The allegations claiming that kicking Loomer/Freedom Watch violated DC's Human Rights Act is just as ridiculous. The court points out the law refers only to physical public spaces and it's not willing to re-litigate a DC circuit opinion and/or rewrite local law on behalf of the plaintiffs.

Finally, the court addresses the most ridiculous of all the lawsuit's assertion: that moderation decisions by social media services somehow violated the plaintiffs' First Amendment rights. The plaintiffs cite the Packingham decision by the Supreme Court, completely misreading that decision's findings. In that case, the court said the government couldn't prevent people from accessing internet services. Loomer and Klayman pretend it actually said platforms can't ban people from accessing their platforms. The district court points out the distinction the plaintiffs are ignoring.

True, in Packingham, the Supreme Court recognized that Facebook and Twitter are among the “most important places (in a spatial sense) for the exchange of views” in society today. 137 S. Ct. at 1735. But the case involved a challenge to a state law that limited the speech rights of certain criminals on these platforms. Id. at 1738. It did not create a new cause of action against a private entity for an alleged First Amendment violation.

The second citation from the plaintiffs isn't any better, and the court again restates the obvious: moderation decisions by private companies are not actions taken by government entities, no matter how many users the platforms accommodate.

[T]he Plaintiffs here allege no nexus between the Platforms’ actions and a function traditionally reserved exclusively to the state. Nor do they contend that the Platforms were designated by the state to perform a governmental operation. Instead, the Amended Complaint focuses on the Platforms’ alleged suppression of conservative political content. It details, for instance, the seemingly disparate treatment of conservative news publishers on Facebook and of conservative commentators on Twitter. Am. Compl. 4-5. But while selective censorship of the kind alleged by the Plaintiffs may be antithetical to the American tradition of freedom of speech, it is not actionable under the First Amendment unless perpetrated by a state actor. Thus, their claim must be dismissed.

This will surely be appealed. But the outcome will be the same. Actions by private companies can't violate rights and the existence of multiple social media platforms simultaneously preemptively defeats most antitrust allegations.

Some conservatives are convinced there's a leftist agenda being played out in social media. But rather than fight it with more speech, they're trying to bring the government in to fix these perceived problems. Whatever floats your speech boat, but remember, any "fixes" you get will remain in place for years -- even if the perceived pendulum swings the other way. The rules that "level the playing field" will come back to bite these agitators in their asses if they ever manage to talk a court or a bunch of legislators into taking their bad ideas seriously.

Filed Under: antitrust, bias, conservative bias, first amendment, free speech, larry klayman, laura loomer, monopoly, social media
Companies: apple, facebook, google, twitter

Verizon Confirms That Yes, 5G Will Cost You Extra

from the nothing's-shocking dept

By now we've established that while fifth-generation (5G) wireless will result in faster, more resilient networks, the technology has been over-hyped to an almost nauseating degree. Yes, faster, lower latency networks are a good thing, but 5G is not as paradigm-rattling as most wireless carriers and hardware vendors have led many in the press to believe. 5G is more of a useful evolution than a revolution, but it has become the equivalent of magic pixie dust in tech policy circles, wherein if you simply say "it will lead to faster deployment of 5G!" you'll immediately add gravitas to your otherwise underwhelming K Street policy pitch.

Throughout all of the hype, carriers have been really hesitant to discuss what's perhaps the most important question: how much will 5G cost? After all, next-generation connectivity is only going to help boost broadband competition if it's both ubiquitous and affordable, two things the US wireless industry has never really been known for. And now that the carrier lobbyists have effectively convinced the Pai FCC to neuter itself, that question has only become more important.

It's starting to become clear why carriers haven't wanted to much talk about price. AT&T's early offerings haven't been much to write home about. And this week Verizon took the wraps off the pricing for its mobile 5G offerings, noting that consumers will need to pay $10 extra per month across the board if they're interested in using it:

"Verizon has decided to treat its emerging mobile 5G network as a premium service that customers should pay more to access. The company is debuting its mobile 5G network next month at select locations in Chicago and Minneapolis, but customers wishing to use it will need a new phone and a new, costlier plan.

Verizon confirmed its new Mobile 5G service will require a new premium unlimited plan, starting at $85. That is $10 more than Verizon’s current GoUnlimited plan. Customers will also need a Motorola Moto Z3 phone — currently the only model compatible with Verizon’s 5G network, and a special 5G Moto Mod attachment, sold separately."

In other words, 5G will cost you extra. Which isn't surprising if you've watched Verizon at all over the last decade or two.

Granted some will try and claim that Verizon should charge more due to the high costs of 5G deployment. That ignores the fact that US consumers already pay some of the highest prices for 4G LTE mobile data in the developed world. That also ignores that Verizon just nabbed incalculable countless billions from the Trump tax cuts and a litany of policy favors from the FCC, money the company has already acknowledged won't be put back into the network. That money was, if you have a memory, supposed to go toward significant new jobs and network investment, according to Verizon.

Verizon's charging more because it doesn't believe it will be adequately punished by competitors for doing so. And it doesn't worry about competition because while the wireless sector (including T-Mobile) talks a good game, they still usually refuse to seriously compete on price. And with the looming Sprint and T-Mobile merger preparing to reduce the total number of major competitors in the space from four to three, that's not getting better anytime soon.

That brings us to the other major question users should be asking about 5G. In a post net neutrality landscape where the FCC no longer seriously has the authority to hold wireless carriers accountable, what kind of annoying restrictions will be placed on these lines? Verizon (who already charges some "unlimited" data customers more to stream video in HD) hasn't affixed any on these early 5G markets yet, but should the FCC win its looming lawsuit over the net neutrality repeal, all bets are off.

Filed Under: 5g, costs, fees
Companies: verizon

Funniest/Most Insightful Comments Of The Week At Techdirt

from the words-within-words dept

Our first place winner for insightful this week is Mason Wheeler with a response to the idea that bogus DMCA takedowns are a tiny exception rather than the rule:

Nope. The truth is actually exactly the opposite of what you just said. According to Google, 99.95% of all DMCA notices are not only bogus, but one specific flavor of bogus. Everything else (including all of the other kinds of bogus DMCA notices!) is included in the last 0.05%. Notices targeting legitimate infringement are so rare as to be statistically almost nonexistent.

Legitimate takedowns truly are the anomaly; the DMCA takedown program is used entirely (or close enough as makes no difference) for abuse, and therefore needs to be done away with.

In second place, we've got That One Guy tackling Axel Voss's notion that maybe YouTube shouldn't exist:

Let the purge begin

If 'it can be used for X, therefore it was created for X, and needs to be treated as though it's only used for X' is the idea he wants to run with then forget just gutting the internet, time to take a chainsaw to other industries too.

Cars can be used to commit crimes, therefore they need to be treated as though their only use is for committing crimes and outlawed.
The roads that cars travel on can be used to facilitate crimes...
Phones can be used...
The mail can be used...
Stores selling pretty much anything can result in crimes...

"Everyone has these obligations. They have created a business model with the property of other people – on copyright protected works."

Funny thing is, he's technically correct here, just not in the grossly dishonest way he intends it as. Yes, platforms like YT are built upon copyright protected works, because barring public domain works everything is copyright protected, and when someone uploads a work technically YT and the like are benefiting thanks to 'property of other people', generally the same person who uploaded the work.

He's trying to conflate two very different things here, infringing works that wouldn't fall under fair use and aren't owned by the person who uploaded them, and works which would fall under fair use or are owned by the person who uploaded them, and acting as though the sites were created for the former rather than the latter.

At best he comes out yet again looking like an ignorant buffoon, but far more likely I'd say is that this is yet another example where he'll say whatever he things will benefit him the most at any given moment, though he may have overstepped himself here, as making clear that YT is definitely in the cross-hairs is likely to cause a notable backlash.

For editor's choice on the insightful side, we start out with Michael Barclay raising an important point about the fair use ruling for a Dr. Seuss-Star Trek mashup:

Oracle v. Google causing mischief again

This case is another example of how dangerous and harmful the Oracle v. Google opinions are. The district court in this case is in the Ninth Circuit, and there are plenty of Ninth Circuit fair use decisions to guide its district courts. Since those cases apparently weren't working for the plaintiff, it instead cited the Federal Circuit's Oracle opinions and argued that they should control the case.

What's worse here is that the district court didn't reject the plaintiff's argument out of hand. The district court should have said, "Oracle isn't binding, rather Ninth Circuit law is binding." Instead, the district court treated Oracle as controlling law, but was able to distinguish it on the facts.

If the Supreme Court doesn't review the Oracle decisions, we can expect them to be cited in many future cases, instead of Ninth Circuit law, and in cases where Oracle can't be meaningfully distinguished on its facts.

(Disclosure: I'm counsel of record on an amicus brief asking the Supreme Court to review Oracle v. Google.)

Next, we've got cpt kangarooski with a little copyright lesson:

I’m a lawyer.

I can tell you that this:

Queen Anne establishes copyright to protect authors FROM a public that was stealing their work.

isn’t true. Anne herself was not known to be particularly involved in the passage of the law. It’s just named that because she was Queen at the time. It was the particularly vigorous Parliament of the day that did it. And it wasn’t at all to protect authors from the public; the public didn’t own printing pressses. It was to impose order on the publishers (who had lost their monopoly in the 1690s) while not restoring their power to what it had been. This meant vesting rights in someone else, and authors were a good prospect for that. It didn’t help authors much — they still tended to get ripped off by publishers as they do to the present day. It also helped the public by establishing the public domain and limiting the scope and duration of the rights Parliament doled out.

Even the American version of copyright law uses this limited window to ensure that content creators are compensated

Bzzt, wrong. No one ensures compensation; most works have no economic value whatsoever, and of the remainder most have no copyright-related economic value. Authors go without compensation all the time; why do you think there’s a stereotype of starving artists? Copyright simply directs some of the revenues associated with a work to the copyright holder. How much revenue there is and who gets shares along the way is not guaranteed. Usually it’s zero or thereabouts.

copyright just isn't doing the job for which it was intended, due to piracy, which is why we now have things like Article 13.

Nah, that’s bullshit.

Over on the funny side, our first place winner is crade with some blunt sarcasm in response to a comment about the Yelp-for-MAGAs app being taken down due to security flaws:

You heard wrong. It was actually due to a left-wing conspiracy to suppress conservative speech.

In second place, we've got an anonymous take on the Oh The Places You'll Boldly Go mashup, and another Suess-Lovecraft mashup:

Just be glad the Cthulhu Estate isn't angry with you. The Seuss estate at least has to work within the bounds of the law. The other side won't even bother staying within the bounds of reality.

For editor's choice on the funny side, why not start with Bruce C. offering one more Cthulhu joke:

They probably called it that to avoid the inevitable lawsuit if they called it "Horton hears a Cthulhu".

Finally, we've got an anonymous headline for the online reputation management company that brags about absuing copyright to get bad reviews taken down:

Work at home lawyer uses this one trick to get anything you want taken off the internet! Judges hate him!

That's all for this week, folks!

Game Jam Winner Spotlight: Chimneys And Tulips

from the like-it's-1923 dept

In our public domain game jam, Gaming Like It's 1923, we had a tie in one of our prize categories, with two entries winning Best Visuals. This week, we're putting the winner spotlight on the first of those two games: Chimneys and Tulips by litrouke.

Graphics are famously among the most labor- and resource-intensive parts of the game development process, so in a 30-day game jam, achieving something visually noteworthy isn't easy. It takes ingenuity and inspiration, and that's exactly what this game has, even if it's a little lacking on the gameplay side. Chimneys and Tulips is a creative presentation of four poems by E. E. Cummings as short interactive design experiences, with a focus on typography. Each one has a different style, and aims to harmonize its graphical and interactive elements with the meaning of the poem.

The first poem, gee i like to think of dead, is presented as a fairly simple linear story, interspersed with illustrative icons, that reveals itself one piece at a time. All in green went my love riding is more intricate, using a "swapping" mechanic for the opening words and offering more and more colorful typography as it progresses. Picasso you give us uses some additional graphics and a simple but captivating animation trick, and is the most visually elaborate of the four. And why did you go little fourpaws deconstructs itself as the user clicks on various words, all the while slowly fading from view.

Though simple, the visuals in Chimneys and Tulips were more closely and thoughtfully united with the game's purpose and content than just about any other entry, which earned it a win for the category alongside another game that we'll feature next week. You can play Chimneys and Tulips in your browser from its page on Itch, and don't forget to check out our other winners as well as the many great entries that didn't quite make the cut.

Filed Under: game jam, poetry, public domain, video games

The 2012 Web Blackout Helped Stop SOPA/PIPA And Then ACTA; Here Comes The 2019 Version To Stop Article 13

from the how-to-make-bad-ideas-politically-toxic dept

Remember SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act)? Back in 2012, they threatened to cause widespread damage to the online world by bringing in yet more extreme and unbalanced measures against alleged copyright infringement. Things looked pretty bad until a day of massive online protest was organized on January 18, 2012, with thousands of sites partially or totally blacked out. Politicians were taken aback by the unexpected scale of the anger, and their support for SOPA and PIPA crumbled quickly. That success fuelled protests in Europe against ACTA (Anti-Counterfeiting Trade Agreement), which also sought to bring in harsh measures against online infringement. After tens of thousands of people took part in street demonstrations across Europe, many politicians wanted nothing to do with the by-now toxic proposal, and it was voted down in the European Parliament in July 2012.

As Techdirt pointed out last year, the proposed EU Copyright Directive is even worse than ACTA. As such it clearly merits serious, large-scale action of the kind that stopped SOPA/PIPA and ACTA. And it's happening. The German-language version of Wikipedia, the second-largest by number of articles, has announced the following (original in German):

On Thursday, March 21, the German-language edition of the online encyclopedia will be shut down completely for 24 hours. In this way, Wikipedia activists want to send a signal, in particular against the introduction of the controversial Articles 11 and 13 in the [EU's] copyright reform.

It is expected that a number of other major sites will be joining in the protest. Meanwhile, another German organization is campaigning against Article 13. In an open letter to MEPs, its supporters write:

We are the operators and administrators of more than 400 German-language discussion forums with more than 18 million members. We are united by the great concern that the EU Copyright Directive will endanger the existence of our forums and thus the discussion culture on the Internet.

The public discussion on the EU Copyright Directive revolves almost exclusively around YouTube and other large US platforms. In doing so, we lose sight of the fact that discussion forums of all sizes will also be affected by the new directive.

That's an important point. Supporters of Article 13 try to give the impression that only deep-pocketed companies like Google will be hit by the new law. As the discussion forum operators point out, their organizations will not be exempt from the requirements of the EU Copyright Directive. Its effects will be devastating:

Because of these uncertainties and the legal and financial liability risk, many discussion forums will close, as small associations or voluntary operators cannot bear this situation. Commercial operators are also endangered in their existence if they have to conclude fee-based licenses and are obliged to install expensive upload filters.

Uncertain regulations for us means years of legal uncertainty, legal risk and potential legal costs, which no operator can afford in the long run as forums usually do not generate a large amount of revenue.

As a result, the discussion culture on the European Internet will be severely impaired, and many citizens will lose their digital home in discussion forums.

Internet startups in the EU will face the same insurmountable problems thanks to Article 13's impossible demands. Many will be forced to shut down. It's an irony that many have already pointed out. A law that supporters claim is designed to tackle the disproportionate power of companies like Google and Facebook will end up entrenching them more deeply, and wiping out much of the EU's own digital ecosystem. Let's hope 2019's big blackout grabs people's attention as the one in 2012 did, and that MEPs drop Article 13 just as they dropped ACTA.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: article 11, article 13, copyright, eu, eu copyright directive, eu parliament, europe, germany, march 21, protests
Companies: wikimedia, wikipedia