You may have noticed that the shift to solar is happening whether traditional utilities like it or not, and attempting to stop solar's forward momentum is akin to believing you can thwart the Mississippi with a fork and a few copies of Mad Magazine. Said futility clearly hasn't discouraged Florida utilities, who have gone to numerous, highly-creative lengths to try and hinder or curtail solar use. When last we checked in with legacy Florida utilities, they were busy using entirely fake consumer groups to push a law that professed to help the solar industry while actually undermining it.

Fortunately Florida consumers ultimately saw through this effort, though this was just one of a steady stream of similar bills aimed at stalling progress. Many Florida Power and Light customers obviously lost power in the wake of the devastation caused by Hurricane Irma, despite promises by the company that endless rate hikes would help harden the utilities' lines. But customers thinking they could use the solar panels on their roofs to help keep themselves afloat until traditional power was restored were in for a rude awakening.

Thanks to the fact that Florida utility lobbyists are being allowed to quite literally write the state's energy laws, many locals discovered they weren't able to use their solar panels in the wake of the storm lest they violate state law:

"FPL's lobbying wing has fought hard against letting Floridians power their own homes with solar panels. Thanks to power-company rules, it's impossible across Florida to simply buy a solar panel and power your individual home with it. You are instead legally mandated to connect your panels to your local electric grid. More egregious, FPL mandates that if the power goes out, your solar-power system must power down along with the rest of the grid, robbing potentially needy people of power during major outages.

In the broadband industry, we consistently let giant incumbents like Comcast and AT&T write shitty protectionist state laws -- then stand around with a dumb look on our collective faces wondering why U.S. broadband is shitty and expensive. The same problem plagues the utility sector across countless states. In Florida, the average household spends $1,900 a year on power, 40% higher than the national average. Yet incentives or other measures designed to spur solar power adoption are either absent or illegal, in large part thanks to utility lobbying.

Needless to say, Irma appears to be acting as a wake up call to Florida utility customers unfamiliar with how the American lobbying and political system actually works:

The problem, again, is that legacy companies across numerous sectors are very effective at using partisan patty cake to convince consumers to root against their own best self interests. That's why Florida, a state perfectly suited to take advantage of solar power, remains well behind the curve when it comes to solar adoption. And again, that's courtesy of folks like State Representative Ray Rodrigues, who takes notable campaign contributions from utilities like FPL, then consistently fields bills that profess to aid the solar revolution while covertly sabotaging what should be the obvious path forward.

Another large Snowden document dump from The Intercept uncovers many more off-brand uses of NSA surveillance tools. The pile of documents come from the NSA's "SID (Signals Intelligence Directorate) Today" files, of which there are apparently thousands of available pages. The documents released late last week show that if it happened online, the NSA was looking at it.

According to documents provided by NSA whistleblower Edward Snowden, the spy agency formed a research group dedicated to studying peer-to-peer, or P2P, internet traffic. NSA didn’t care about violations of copyright law, according to a 2005 article on one of the agency’s internal news sites, SIDtoday. It was trying to determine if it could find valuable intelligence by monitoring such activity.

But it appears the NSA found very little worth observing.

“By searching our collection databases, it is clear that many targets are using popular file sharing applications,” a researcher from NSA’s File-Sharing Analysis and Vulnerability Assessment Pod wrote in a SIDtoday article. “But if they are merely sharing the latest release of their favorite pop star, this traffic is of dubious value (no offense to Britney Spears intended).”

The info in the SID Today publication [PDF] is a bit dated, as it shows BitTorrent trailing applications like eDonkey and KaZaa. Even though it was mostly popular albums traversing the internet pipes, the NSA still formed a File-sharing Analysis and Vulnerability Assessment (FAVA) "pod" to poke away at the infrastructure and search the shared files for data of national security interest. To do this, it had to strip away the layers of protection lying between the NSA and the contents of the files.

As many of these applications, such as KaZaA for example, encrypt their traffic, we first had to decrypt the traffic before we could begin to parse the messages. We have developed the capability to decrypt and decode both KaZaA and eDonkey traffic to determine which files are being shared, and what queries are being performed.

Breaking the encryption allowed the NSA to peer into users' computers via their shared folders, as well as harvest email addresses, country codes, user names, and lists of recent searches.

Even so, there was little actual intelligence to be gathered from the most popular file sharing applications of a decade ago. But that laid the groundwork for further examination of file sharing for national security reasons. A program called GRIMPLATE tracked BitTorrent use by Defense Dept. employees, checking to see if any of the swarms travelling in and out of the DoD's safe spaces was "malicious" -- a definition that presumably covers DoD employee exfiltration of sensitive files as well as possibly-harmful programs being downloaded to DoD computers.

Over in the UK, GCHQ was taking much more proactive steps toward turning torrent traffic into both a weapon and a source of intel.

The page describes DIRTY RAT, a GCHQ web application used by analysts that at the time had “the capability to identify users sharing/downloading files of interest on the eMule (Kademlia) and BitTorrent networks. … For example, we can report on who (IP address and user ID) is sharing files with ‘jihad’ in the filename on eMule. If there is a new publication of an extremist magazine then we can report who is sharing that unique file on the eMule and BitTorrent networks.”

The RAT was also tasked with gathering info to be shared with law enforcement. Child porn is name-checked in the document, as are the London Metro Police and FBI. But GCHQ wasn't interested in merely collecting info on users sharing illicit content. It also wanted to use the sharing platforms for malware delivery.

A tool called PLAGUE RAT “has the capability to alter the search results of eMule and deliver tailored content to a target,” the wiki article states. “This capability has been tested successfully on the Internet against ourselves and testing against a real target is being pursued.”

File sharing hasn't gone away, so it's indisputable both agencies are still eyeballing BitTorrent traffic. Considering a number of exfiltrated docs/software have been shared via the service, there are probably files of national security interest circulating along with movies, music, and games.

Free Software Foundation Europe has a new campaign -- "Public money, public code" -- which poses the following question:

Why is software created using taxpayers' money not released as Free Software?

And goes on:

We want legislation requiring that publicly financed software developed for the public sector be made publicly available under a Free and Open Source Software licence. If it is public money, it should be public code as well.

It certainly seems pretty ridiculous that code written for public bodies, whether by external companies or contractors paid by the public purse, or produced internally, should not be released as free software. But aside from this being a question of fairness, the FSFE lists other reasons why it makes sense:

Tax savings

Similar applications don't have to be programmed from scratch every time.

Collaboration

Efforts on major projects can share expertise and costs.

Fostering innovation

With transparent processes, others don't have to reinvent the wheel.

An open letter on the site, supported by dozens of organizations and open for individual signatures, provides a few more:

Free and Open Source Software is a modern public good that allows everybody to freely use, study, share and improve applications we use on a daily basis.

Free and Open Source Software licences provide safeguards against being locked in to services from specific companies that use restrictive licences to hinder competition.

Free and Open Source Software ensures that the source code is accessible so that backdoors and security holes can be fixed without depending on one service provider.

Considered objectively, it's hard to think of any good reasons why code that is paid for by the public should not be released publicly as a matter of course. The good news is that this "public money, public code" argument is precisely the approach that open access advocates have used with considerable success in the field of academic publishing, so there's hope it might gain some traction in the world of software too.

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

A few months ago, we alerted our readers that a trademark dispute between the San Diego Comic-Con and a company producing a Salt Lake City Comic Con, originally filed in 2014, was still going on. In fact, the district court hearing the case just recently ruled on several motions from both parties, including motions for judicial notice (essentially having the court affirm basic facts about the case), motions to exclude expert testimony, and motions for summary judgement. On the face of it, the news is mostly bad for the Salt Lake City convention, with nearly every ruling coming down against it. However, digging into the ruling itself, there is a light at the end of the tunnel.

As for the bad news, it seems to be mostly of the Salt Lake City Comic Con's own making, or the making of its legal team. The court points out that the defendant's lawyers motion and defenses are all over the place, in some places arguing for generecide -- or that "comic con" has become a generic term -- while in others arguing that "comic con" is generic ab initio -- or that the term was generic even prior to San Diego Comic-Con's initial use of it. It's an important distinction for a couple of reasons, including that the defenses SLC has stated it will make revolve around genericide, yet much of the evidence in the motions in this ruling revolve around generic ab initio and, more importantly, the 9th Circuit doesn't have any precedent or acknowledgement of generic ad initio as a matter of law, and this district court is governed by 9th Circuit precedent.

Unfortunately for Defendants, the Ninth Circuit has not recognized a genericness ab initio theory of defense. Instead, the Ninth Circuit very clearly states that there are only five categories of trademarks: (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; and (5) fanciful. KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596, 602 (9th Cir. 2005). No case law from this circuit separates genericness into two different types nor have Defendants provided the Court with Ninth Circuit precedent that adopts their arguments. Accordingly, as there is no dispositive basis or Ninth Circuit jurisprudence to accept an argument revolving around a generic ab initio defense, the Court GRANTS Plaintiff’s motion for summary judgment on this contention.

So, yeah, not a real good look on the part of the SLC's legal team. Later in the ruling, the court goes on to rule against SLC's motion for summary judgement, which was essentially asking the court to rule that "comic con" is now a generic term. The court declined to do so, moving the case forward. But it's important to note that the court, in a ruling that otherwise dealt somewhat harshly with SLC's lawyers, makes a point of noting that it did not deny the motion because Salt Lake City doesn't have the facts on its side. Instead, the court notes that in motions like this, favorable weight is generally given both to the plaintiff and to any holder of a valid trademark (the plaintiff again, in this case), and that's what precludes the court from granting a summary judgement. The ruling goes on to state:

After a careful review of the parties’ moving papers, the applicable law, and the evidence on the record, the Court finds that Defendants have satisfied their burden of demonstrating a genuine issue of material fact as to genericide. “Federal courts [] view usage of [a] term by competitors in the industry as strong evidence of how the public perceives them.” Classic Foods Int’l Corp. v. Kettle Foods, Inc., 468 F. Supp. 2d 1181, 1190 (C.D. Cal. 2007). “The more members of the public see a term used by competitors in the field, the less likely they will be to identify the term with one particular producer.” Id. Here, Defendants produce evidence that demonstrates that “comic cons” are held in nearly every state of the United States including New York Comic Con, Amazing Arizona Comic Con, Emerald City Comic Con, and Tampa Bay Comic Con. (Doc. No. 223-1 at 39, 101, 129, 160.) This evidence of over 100 competitors using the unhyphenated form of Plaintiff’s trademark strongly suggests that the mark is generic. Consequently, this is persuasive evidence of genericide. See CG Roxane LLC v. Fiji Water Co. LLC, 569 F. Supp. 2d 1019, 1027 (N.D. Cal. 2008) (holding that a competitors use of a mark is compelling evidence of genericness as it reflects how the public identifies the term).

Due to that, the court denied San Diego Comic-Con's motion to deny SLC that defense. So, when the trial moves forward now, it should be clear exactly what the defense by Salt Lake City will be: generecide. Given this ruling's opinion of the facts on that question, it appears that defense will be quite strong.

It's something of a canary in the coal mine for the SDCC, in other words. I somewhat expect we'll now hear more talks of a settlement before this goes much further.

Around a year ago, HP was roundly and justly ridiculed for launching a DRM time bomb -- or a software update designed specifically to disable competing printer cartridges starting on a set date. As a result, HP Printer owners using third-party cartridges woke up one day to warnings about a "cartridge problem," or errors stating, "one or more cartridges are missing or damaged," or that the user was using an "older generation cartridge." The EFF was quick to lambast the practice in a letter to HP, noting that HP abused its security update mechanism to trick its customers and actively erode product functionality.

HP only made matters worse for itself by claiming at the time that it was only looking out for the safety and security of its customers, while patting itself on the back for being pro-active about addressing a problem it caused -- only after a massive consumer backlash occurred.

Fast forward almost exactly one year, and it looks like HP hasn't learned much from the Keurig-esque experience. The company this week released a new software update for the company's OfficeJet 6800 series, OfficeJet Pro 6200 series, OfficeJet Pro X 450 series, and OfficeJet Pro 8600 series printers. One of the major "benefits" of the update? Printer cartridges from competing manufacturers no longer work. Again:

According to ghacks.net, a new firmware update for HP Officejet printers released yesterday appears to be identical to the reviled DRM update released exactly one year ago. When you try to use third-party ink after installing the new/old firmware, you apparently run into an error that says “One or more cartridges appear to be damaged. Remove them and replace with new cartridges.” Depending on how many cartridges your specific printer uses, it may be possible to insert one or two without getting an error. But it seems when all of the ink cartridge slots are filled up, the warning message will be displayed again.

Just like a year ago, this restriction is being foisted upon consumers under the guise of a security update, powered by a service HP calls its "Dynamic Security" platform. Fortunately, consumers have several paths to avoid dealing with this nonsense. Customers can head to the HP support website and download an alternate firmware without the Dynamic Security platform embedded (something that HP knows most users won't do, and which places the onus for remedying HP's bad behavior on the end user). Users then have to block HP's automatic update functionality to prevent this firmware from being installed automatically (at the cost of useful updates).

There's probably an easier, more elegant solution: stop buying HP printers until the company realizes that eliminating device functionality under the pretense of security is obnoxious bullshit.

On Friday, we posted video from last week's World Hosting Days, in which Mike Masnick sat down for a talk with Mike Godwin — a.k.a. the originator of "the Streisand Effect" meeting the creator of "Godwin's Law". As promised, we've got the audio from the event for this week's podcast, so if you haven't watched the video (or you just want to revisit it) tune in for a fun discussion about the history and changing meaning of these now-famous terms.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

So, earlier today the Senate Commerce Committee held a two and a half hour hearing about SESTA -- the Stop Enabling Sex Traffickers Act of 2017. The panelists were evenly split, with California Attorney General Xavier Becerra and Yiota Souras from the National Center for Missing and Exploited Children being in support of the bill, and Professor Eric Goldman and Abigail Slater from the Internet Association worrying about the impacts of SESTA (notably, both highlighted that they're not against all changes to CDA 230, they just want to be quite careful and are worried about the language in this bill). I was actually somewhat surprised that the hearing wasn't as bad as it could have been. There certainly was some grandstanding, and some insistence that because SESTA says it will go after sex trafficking, it obviously will -- but many Senators did seem willing to listen to concerns about the bill and how it's written. Much attention was paid to the sketchy "knowledge" standard in the bill, which we wrote about this morning. And that's good -- but there was a fair bit of nonsense spewed as well.

Perhaps the most problematic comments were from the bill's co-author, Senator Richard Blumenthal, who has been attacking CDA 230 since his time as Connecticut's Attorney General. While you can watch the entire hearing, I created a short clip of Blumenthal's questions (which, oddly, C-SPAN won't let me embed here) so I'll transcribe it:

Blumenthal: I think I've said why I support this legislation, which I helped craft, and we've tried to do it carefully. And we tried to listen to the industry. We've tried to listen really closely to some of the concerns that have been raised this morning by Mr. Goldman. For example, the idea that this legislation will cause sex trafficking to -- I'm using your word -- proliferate. Hard to believe. Mr. Becerra, what do you think and will this measure cause sex trafficking to proliferate?

So... the idea that Blumenthal listened carefully is laughable on its face. He's been fighting this issue since at least 2010 when he went after Craigslist for ads he didn't think they should have on the site. And in Blumenthal's own testimony he admitted that forcing Craigslist to change how it worked only led to sex trafficking ads moving from Craigslist -- which cooperated very closely with law enforcement -- to Backpage and expanded their reach. I'm at a loss as to why we should take Blumenthal's word on what will happen when he admits his own actions targeted at sex trafficking in the past made the problem worse. To then mock Prof. Goldman for suggesting the same might happen here is... quite incredible.

Also, interesting that rather than asking Goldman to clarify his position first (he does later), Blumenthal starts by asking Becerra to back him up.

Becerra: I can't agree with what Professor Goldman has said. I think it's just the opposite. If we have a standard in place, then I believe the stakeholders within the internet community will come forward in ways we've seen before, but even more vigoroulsy, because they'll understand what the standard is, and I think that's so very important to make it clear for folks. The most important thing, Senator Booker sorta pointed this out, is we need to get the opponents of this measure to explain, in detail, what they would propose in place. Otherwise, it's always a moving target. It's Whac-a-mole. Someone needs to give us what a better bill looks like.

So, this is also bizarre and wrong. First, much of the discussion from Goldman and Slater (and us) was about the lack of any clarity around the "standard." The bill says that "knowing conduct" that "assists, supports or facilitates" sex trafficking can make a platform guilty of civil and criminal violations of the law. But "knowing conduct" is not clarified. And as we've seen in other contexts, including in the copyright realm, years-long fights can happen in court over what "knowledge" might mean. The famous YouTube/Viacom fight, that went on for nearly a decade, was almost entirely focused on whether or not YouTube had knowledge of infringement, and whether the law required "specific" knowledge or "general" knowledge. Nothing in this bill clarifies that.

Even worse, the term "knowing conduct" is dangerously vague. It could be read to mean that if the site does something that it knows that it is doing, and it leads to facilitating sex trafficking -- even if the site doesn't know about that outcome -- it would constitute "knowing conduct." Goldman had pointed this exact problem out earlier in the hearing, so for Becerra to insist that this is a clear standard is ludicrous.

Becerra is also confused if he thinks this will lead internet companies to "more vigorously" come forward. Coming forward with evidence of sex trafficking will then be turned around on them as proof of "knowledge." With this law in place, why would any internet company be more willing to come forward when that only increases liability?

Finally, the idea that opponents need to come forward with other language is similarly weird. SESTA's supporters are the ones demanding a massive change in the underpinning of the internet. Shouldn't the burden be on them to prove that this will help and not hurt? And, on top of that, it also ignores the fact that many opponents have come forward with different language (which I know as a fact because someone ran some alternative language by me a few weeks ago, and again earlier this week). So either Becerra doesn't know that or he's being disingenuous.

I'll cut the next section where Blumenthal says (misleadingly) that a proposal put forth from tech companies was to curtail or "eliminate" the ability of State AGs to pursue violations of the law (the proposal I saw simply clarified when and how they could go after sites) and Becerra eagerly says that would be terrible, as you'd expect.

Blumenthal: Let me ask, Mr. Goldman, do you really believe that this law would cause sex trafficking to proliferate?

Goldman: Thank you, Senator, for the opportunity to clarify that. Indeed, my concern is that we already see a number of efforts on the part of legitimate players to reduce sex trafficking promotion. To the extent that any of those companies decide 'I am better off turning off my efforts across the board, to try to reduce the knowledge that I have,' then that creates a larger number of zones that the sites will not be taking the legitimate effort that we want them to take. It creates an environment where there's more places for that to occur.

This is an excellent and succinct explanation of the problem. Under SESTA, the "knowledge" standard is so vague and unclear, that actually doing what Congress wants -- policing sex trafficking -- creates "knowledge" and makes these companies liable under the law. Blumenthal, of course, doesn't seem to get it -- or doesn't care.

Blumenthal: You know, I have a higher opinion of the industry than you do. I really believe that this law will raise the bar, will increase consciousness, and that far from trying to evade, or, in fact, deny themselves knowledge, so as to avoid any accountability, they will be more energetic. I absolutely really believe that most of these companies want to do the right thing and that this law will give them an increased impetus and incentive to do so.

WHAT?!? First off, if the idea is to give companies a greater impetus and incentive to do what they already want to do (as Blumenthal claims...) then threatening them with criminal and civil penalties for simply "knowing" that their platforms are used for illegal activity seems like a totally fucked up way of doing so. If you want to encourage platforms to do the right thing, then why is the entire bill focused on punishing platforms for merely knowing that their platform was illegally used? Second, if Blumenthal truly had a higher opinion of tech companies, why is he misrepresenting what Goldman said, and saying that companies would choose to avoid knowledge to "avoid accountability"? That's not the issue at all -- and is, indeed, self-contradictory with Blumenthal's own statements. Companies want to do the right thing to reduce sex trafficking, but this bill puts them in legal jeopardy for even researching if their platforms are used that way. That's the point that Goldman was trying to make and Blumenthal totally misrepresents.

And then it gets worse. Goldman points out a separate issue, noting that big companies like Google and Facebook may have the resources to "do more" but startups without those resources won't be able to take the steps necessary to avoid liability under the law:

Goldman: There's no doubt that the legitimate players will do everything they can to not only work with the law enforcement and other advocates to address sex trafficking and will do more than they even do today. At the same time, the industry is not just the big players. There is a large number of smaller players who don't have the same kind of infrastructure. And for them they have to make the choice: can I afford to do the work that you're hoping they will do.

Okay, and here's where things get absolutely fucked up. Note what Goldman is clearly saying here: this bill will wreak havoc on startups who simply can't afford to monitor everything that people do on their platforms. And then, Blumenthal's response is to say that those startups are criminals who should be prosecuted:

Blumenthal: And I believe that those outliers -- and they are outliers -- will be successfully prosecuted, civilly and criminally under this law.

WHAT THE FUCK?!? Goldman was talking about tons and tons of smaller companies -- or anyone who operates any online service that enables user comments, where they can't monitor everything -- and under this law will have to make the choice of whether they do any monitoring at all or face the risk of that being used against them, and Blumenthal's response is that they should be prosecuted.

Senator Blumenthal: those companies are not outliers and they're not criminals. They're thousands upon thousands of smaller internet companies, many based in your home state of Connecticut, that you apparently want to see shut down.

That's messed up.

It's fairly stunning just how often the NY Times Opinion pages are just... wrong. Nick Kristof, one of the most well known of the NYT's columnists, has spent years, talking about stopping sex trafficking -- but with a history of being fast and loose with facts, and showing either little regard for verifying what he's saying, or a poor understanding of the consequences of what he says. I would hope that everyone reading this supports stopping illegal and coerced sex trafficking. But doing so shouldn't allow making up facts and ignoring how certain superficial actions might make the problems worse. Kristof, in particular, has been targeting Backpage.com for at least five years -- but has been caught vastly exaggerating claims about the site to the point of potentially misstating facts entirely (such as claiming Backpage existed before it actually did, and that it operated in cities where it did not). Kristof also has a history of being laughably credulous when someone comes along with a good story about sex trafficking, even when it's mostly made up. He's been accused of having a bit of a savior complex.

And that's on display with his recent, extraordinarily confused piece attacking Google for not supporting SESTA -- the "Stop Enabling Sex Traffickers Act." As we've explained in great detail, SESTA (despite its name) is unlikely to stop any sex trafficking and likely would make the problem worse. That's because the whole point of SESTA is to undermine CDA 230, the part of the law that creates incentives for tech companies to work with authorities and to help them track down sex trafficking on their sites. What the bill would do is make websites owners now both civilly and criminally liable for knowledge of any sex trafficking activity on their sites -- meaning that any proactive efforts by them to monitor their websites may be seen as "knowledge," thus making them liable. The new incentives will be not to help out at all -- not to monitor and not to search.

Meanwhile, by putting such a massive target on websites, it will inevitably be abused. We see how people abuse the DMCA to take down content all the time -- now add in the possibility of sites getting hit with criminal penalties, and you can see how quickly this "tool" will be abused to silence content online.

But, never mind all of that. To Kristof, because the bill says it's against sex trafficking, and he's against sex trafficking, it must be good. And, he's quite sure that the only people against the bill are Google, and that there's ill-intent there.

Why? Why would Google ally itself with Backpage, which is involved in 73 percent of cases of suspected child sex trafficking in the U.S., which advertised a 13-year-old whose pimp had tattooed his name on her eyelids?

First of all, Kristof is, again, playing fast and loose with the facts if he thinks Google is an "ally" of Backpage. Google has directly come out and said that it believes that Backpage should be criminally prosecuted by the DOJ (remember, CDA 230 does not apply to federal criminal charges).

I want to make our position on this clear. Google believes that Backpage.com can and should be held accountable for its crimes. We strongly applaud the work of the Senate Permanent Subcommittee on Investigations in exposing Backpage's intentional promotion of child sex trafficking through ads. Based on those findings, Google believes that Backpage.com should be criminally prosecuted by the US Department of Justice for facilitating child sex trafficking, something they can do today without need to amend any laws. And years before the Senate's investigation and report, we prohibited Backpage from advertising on Google, and we have criticized Backpage publicly.

So, no, Google is not protecting Backpage. Kristoff, towards the end of his post, waves off Google's strong words about Backpage as proof that it has no reason not to support this legislation, without even once grappling with (a) what Google actually says or (b) why Google (and tons of others) would still oppose this legislation as being tremendously damaging. Even if you're not quite as convinced as Google that Backpage has broken the law (the Senate Report appeared to take a number of Backpage actions completely out of context), to argue that Google is supporting Backpage is clearly just wrong. But, Kristof, having set up his thesis, is going to go for it, no matter how wrong:

The answer has to do with Section 230 of the Communications Decency Act, which protects internet companies like Google (and The New York Times) from lawsuits — and also protects Backpage. Google seems to have a vague, poorly grounded fear that closing the loophole would open the way to frivolous lawsuits and investigations and lead to a slippery slope that will damage its interests and the freedom of the internet.

"Poorly grounded fear?" That's just wrong. Kristof seems totally ignorant of issues related to intermediary liability on the internet -- an issue that has been studied for quite some time. When you give people tools to put liability on online services for the actions of their users, the tools are abused. Every time. They get abused for censorship. We know this. You don't have to look any further than the intermediary liability setup we have in the copyright realm, where every year we see millions of false DMCA notices filed just to censor content, and not for any reason having to do with copyright.

How do you think things will turn out when you're able to not just threaten a website with civil copyright penalties with limited damages, but with potential criminal penalties, through a vaguely worded law where mere "knowledge" can get your entire site in trouble? But again, Kristof doesn't care.

That impresses few people outside the tech community, for the Stop Enabling Sex Traffickers Act was crafted exceedingly narrowly to target only those intentionally engaged in trafficking children. Some tech companies, including Oracle, have endorsed the bill.

First, this is wrong. Lots of people outside the tech industry have raised concerns -- including free speech groups like the ACLU. But, even if it were only the tech community, why wouldn't you listen to the industry that actually has the experience in understanding how these kinds of laws are regularly abused to silence perfectly legitimate speech and to quash perfectly legitimate services? Wouldn't their input be valuable? Why does Kristof brush them off? As for the Oracle line -- let's be clear: Oracle and HP are the only "tech" companies that have come out in support of the bill, and neither run online services impacted by CDA 230. It's completely disingenuous to argue that Oracle represents "tech" when it's not an internet services provider who would be impacted by changes in CDA 230. Why even listen to them, rather than those who have the actual experience?

And the idea that this was "crafted exceedingly narrowly to only target those intentionally engaged in trafficking children" is just on its face, wrong. First off, the bill doesn't specifically just target trafficking having to do with children, but I think we can all agree that any trafficking is problematic. The issue is that it doesn't just punish those "intentionally engaged in trafficking." It specifically targets any website that is used in a way that "assists, supports or facilitates" trafficking and has broadly defined "knowledge" that the site is used that way. That's... not intentionally engaging in trafficking. It's much, much, much broader. Let's say you're Airbnb. SESTA makes it much riskier to be in business. If Airbnb hears that someone used Airbnb to traffic someone (which, unfortunately, is impossible to detect), now it risks criminal and civil lawsuits, because it "knew" of conduct that "assisted, supported, or facilitated." This is even if Airbnb doesn't know which accounts were used for this.

“This bill only impacts bad-actor websites,” notes Yiota Souras, general counsel at the National Center for Missing & Exploited Children. “You don’t inadvertently traffic a child.”

This is... just so misguided and wrong it's almost laughable. No, of course, no one "inadvertently" traffics a child. But that's not what this law is about. The law is about blaming websites if one of its users does anything related to trafficking someone via its services. And, that creates massive potential liability. Say someone wants to get our little site in trouble? They could just go and post links in comments to sex trafficking ads, and suddenly we're facing potential criminal charges. We're not Google. We can't hire staff to read every possible comment and recognize whether or not they're linking to illegal activity. And despite what some will say, even Google can't possibly hire enough staff, or get its AI good enough, to parse everything it touches to see whether or not it's linked to illegal activity. But under the current setup of SESTA, this leads you to a risk of massive liability.

The concerns here are real -- and Kristof is either ignorant or being purposely blind to the arguments here.

Senator Rob Portman, an Ohio Republican and lead sponsor of the legislation, says that it would clearly never affect Google. “We’ve tried to work with them,” Portman told me

This is laughable. The bill would impact basically every site, including Google. After all, it was just a few years ago, that a Mississippi Attorney General went on an illegal fishing expedition against Google -- put together by the MPAA's lawyers -- demanding all sorts of information from Google. Based on what? Well, Jim Hood said that because he could use Google to find sex trafficking ads, Google was breaking the law. A court tossed this out, and the two sides eventually settled, but under SESTA, Hood would now be able to go after Google criminally if any search turned up trafficking. And how the hell is Google supposed to make sure that no one ever uses any of its properties for sex trafficking?

But, never mind the facts. Kristof insists there's no issue here because the bill's sponsor says there's no issue.

Senator Richard Blumenthal of Connecticut, the lead Democratic sponsor, adds that “it’s truly baffling and perplexing” that some in the tech world (Google above all) have dug in their heels. He says the sex trafficking bill gathered 28 co-sponsors within a week, making it a rare piece of bipartisan legislation that seems likely to become law.

It's truly baffling that those with actual experience and knowledge in how weakening intermediary liability laws creates all sorts of problems are now telling you there will be all sorts of problems? And, really, isn't this the same Senator Richard Blumenthal who, when he was Connecticut Attorney General, was famous for campaigning against CDA 230 and blaming tech for basically everything? He's not exactly a credible voice. But, Kristof has his story and he apparently seems willing to believe anyone who says anything, no matter how little is based on facts, if it supports his version of the story.

I write about this issue because I’m haunted by the kids I’ve met who were pretty much enslaved, right here in the U.S. in the 21st century. I’ve been writing about Backpage for more than five years, ever since I came across a terrified 13-year-old girl, Baby Face, who had been forced to work for a pimp in New York City.

And you've been repeatedly called out and corrected for factual errors in your writing on this issue. Because you're quick to believe things that later turn out to be wrong. And, yes, stories like ones you've come across are awful and we should be doing everything possible to stop such exploitation. But blaming internet companies doesn't help. You blame the actual criminals, the ones trafficking the children. But, Kristof is clear: he doesn't care about blaming those actually responsible. He wants to take down internet companies. Because reasons.

But it’s not enough to send a few pimps to prison; we should also go after online marketplaces like Backpage. That’s why Google’s myopia is so sad.

Why? Why should we blame internet companies because people use them for illegal activity? What's wrong with blaming the people who actually break the laws? CDA 230, as currently written, encourages platforms to cooperate with law enforcement and to take down content. SESTA would undermine that and stop companies from working with law enforcement, because any admission of "knowledge" can be used against them.

In response to my inquiries, Google issued a statement: “Backpage acted criminally to facilitate child sex trafficking, and we strongly urge the Department of Justice to prosecute them for their egregious crimes against children. … Google will continue to work alongside Congress, antitrafficking organizations and other technology companies to combat sex trafficking.”

Fine, but then why oppose legislation? Why use intermediaries to defend Backpage? To me, all this reflects the tech world’s moral blindness about what’s happening outside its bubble.

Why oppose it? Because the legislation is a nuclear bomb on how the internet works and a direct attack on free speech. It's not "moral blindness" at all. In fact, SESTA would be a moral disaster because it removes incentives for companies to help stop trafficking, out of fear of creating "knowledge" for which they'll face civil and criminal lawsuits. This has been explained to Kristof -- and, in fact, people told him this on Twitter after his article was published, and he insisted that no one other than Google seemed concerned with SESTA.

That's also not true. As we've seen with our own letter, dozens of tech companies are worried about it. And we've talked to many more who admitted to us that they, too, think this is an awful law, but they're afraid of grandstanding folks like Kristof publishing misleading screeds against them falsely saying that worrying about SESTA is the same as supporting sex trafficking.

Incredibly, when an actual human trafficking expert and researcher, Dr. Kim Mehlman-Orozco, decided to challenge Kristof and point out that his opinions aren't backed up by the actual research, Kristof dismissed her views and data as not being as valuable as the few anecdotes he has.

Even if Google were right that ending the immunity for Backpage might lead to an occasional frivolous lawsuit, life requires some balancing.

Uh, what? This is basically Kristof first admitting that he's wrong that it won't impact sites other than Backpage, and then saying "meh, no biggie." But that's... really fucked up. We're not talking about the "occasional frivolous lawsuit." From what we've seen with the DMCA, it seems likely that there would be a rash of dangerous lawsuits, and companies being forced out of business -- not to mention tons of frivolous threats that never get to the lawsuit stage, but lead to widespread censorship just out of the fear of possible liability. How can Kristof just shrug that off as "balance"?

For example, websites must try to remove copyrighted material if it’s posted on their sites. That’s a constraint on internet freedom that makes sense, and it hasn’t proved a slippery slope. If we’re willing to protect copyrights, shouldn’t we do as much to protect children sold for sex?

HOLY SHIT. And here we learn that Kristof is so completely out of his depth that it's not even funny. Seriously, someone educate Nick Kristof a little on how the DMCA has been abused to silence speech, to kill companies and to create huge problems for free speech online? And that's with much lower penalties than what we're talking about with SESTA.

I asked Nacole, a mom in Washington State whose daughter was trafficked on Backpage at the age of 15, what she would say to Google.

“Our children can’t be the cost of doing business,” she said. Google understands so much about business, but apparently not that.

Ah, always close with a "for the children!" argument after making a bunch of statements that are just devoid of facts. No one is fighting this for the support of "business." They're doing it because they understand how important intermediary liability protections are against undermining how the internet works and how free speech works online. Kristof has a long history of not caring about facts so long as he gets a good story about just how concerned he is about trafficking. We're all concerned about trafficking -- but passing a law that will make the problem worse just to appear like you're a hero is not the solution, Nick.

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Earlier today, I wrote up a list of the many problems with SESTA and how it will be abused. Over and over again, we've seen defenders of the bill -- almost none of whom have much, if any, experience in managing services on the internet -- insist that the bill is "narrowly targeted" and wouldn't create any problems at all for smaller internet services. However, with the way the bill is worded, that seems unlikely. As stated in the last post, by opening up sites to facing both lawsuits from state Attorneys General and civil lawsuits, SESTA puts almost any site that offers services to the public at risk. The problematic language in the bill is that this is the "standard" for liability:

"The term 'participation in a venture' means knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation...."

And that could apply to just about anyone offering services online. So, let's dig into a few examples of companies and services potentially facing liability thanks to this nuclear bomb-sized hole in CDA 230.

• Airbnb: I did a whole post on this earlier. But there are multiple reports of how some people have used Airbnb for prostitution. I'm quite sure that Airbnb doesn't want its users to use the platform in this way, but under SESTA, it will face criminal and civil penalties -- and it has no way to prevent it. Prosecutors or civil litigants can easily point to these articles, and note that this demonstrates "knowledge" that Airbnb is "facilitating" sex trafficking, and, voila, no CDA 230 protections.
• Square: The popular payments processor that has made it easy for small businesses to accept credit cards... can also be used for prostitution/sex trafficking. Square can't specifically watch over what each of its customers is selling, but clearly, it wouldn't be difficult for prosecutors and/or civil litigants to argue that Square is knowingly facilitating trafficking by allowing traffickers to accept payments.
• Facebook: Obviously, tons of sex traffickers use Facebook to advertise their wares. There have been news stories about this. So clearly Facebook has "knowledge." If it can't magically eradicate it, it may also now have to deal with criminal and civil lawsuits lobbed its way.
• Snapchat: Last year there was a story of a teenager lured into a sex trafficking ring via Snapchat. So, clearly, lawyers might argue that Snapchat has "facilitated" sex trafficking.
• Wordpress/Automattic: Automattic hosts a significant portion of the entire internet with its powerful Wordpress.com platform. It's pretty damn likely that at least some sex traffickers use Wordpress to set up sites promoting what they're offering. Thus, it's "facilitating" sex trafficking.
• Wikipedia: You wouldn't think of Wikipedia as being a hub for sex trafficking, but the site gets hit with spam all the time, and people trying to promote stuff via its webpages -- and even when spam is edited out, it remains viewable in the history tabs. So, if a few links to trafficking advertisements show up, even if edited out, Wikipedia could face liability for facilitating such ads.
• Google Docs: Did sex traffickers use Google docs to create fliers or manage a spreadsheet? Is that "facilitating" sex trafficking? Well, we might not know until after a court goes through a long and involved process to figure it out.
• Cloudflare: Tons of websites use Cloudflare as a CDN to provide better uptime. What if one of them involves advertisements for sex trafficking. Is Cloudflare liable? After all, its CDN and anti-DDoS technology helped "facilitate" the service...
• Rackspace: Popular hosting company has millions of websites. If one of them hosts advertising for trafficking, it can be liable for facilitating sex trafficking.
• Amazon: Through its web services arm, Amazon hosts a large portion of the internet. Can you say for certain that Amazon S3 isn't used somewhere by some sex trafficking parties?
• YouTube: These days, almost anything can be found in videos, and while YouTube has a system to "notify" the company of abuse, that may be used against the company, claiming "knowledge." After all, in a case in Italy where Google execs were found criminally liable, the fact that some users clicked the "notify" button was used as evidence against the execs.
• Namecheap: Has Namecheap ever registered a domain that was then used by sex traffickers? Well, then it can be argued that it facilitated sex trafficking, and is not protected by CDA 230.
• Indeed: Basically any "job board" is at risk. There are stories of sex traffickers seeking victims via promises of summer jobs -- and while these stories are highly dubious at best, similar accusations against online job boards under SESTA would be easy to make.
• Reddit: As an open forum, certainly sex trafficking gets discussed in some corners of the site. Is it possible that some have used it to help facilitate trafficking? Absolutely.
• Any site that has comments: And that includes sites like Techdirt. Want to get a site in trouble? Why not spam its comments with links to sex trafficking ads? Voila, you've now put those sites at risk of criminal and civil liability...

The point of this is that this list can go on and on and on. Almost any internet service can be used in some way to "facilitate" sex trafficking. And rather than recognizing that the problem is those engaging in sex trafficking, SESTA now lets everyone go after the tools they use. But nearly all those tools are mostly used for perfectly legitimate, non-illegal activity. Yet, under SESTA, all face massive liability and the potential for criminal charges.