A week or two ago we noted how there was a mass panic because TikTok was found to be sharing U.S. user data with executives at the company’s Chinese parent company, ByteDance. This was in stark contrast to the strict, U.S.-based data management controls the company claimed to be implementing, and, to be clear, was not a good thing.
But while this showcased how TikTok’s privacy standards are often performative, it wasn’t truly all that different than what happens with countless other domestic and international companies with shitty privacy practices. Vast troves of varying US consumer behavior, location, and browsing and app datasets are bought and sold everyday in the largely unaccountable telecom/adtech/app/hardware data world without anywhere near the same level of hyperventilation TikTok receives.
There’s a tendency among some performative politicians (see: Trump) to specifically single out what TikTok is doing on this front for xenophobic, political, or cronyistic purposes, yet turn a complete blind eye to the broader policy failures that made TikTok (and everybody else’s) lax privacy practices possible in the first place.
That’s been a particular habit of FCC Commissioner Brendan Carr, whose public record shows he literally could not give any less of a shit about any of the vast privacy abuses in a sector he actually regulates (telecom), yet loves to head to the fainting couches any time TikTok is mentioned.
Like this week, when Carr sent a letter to Google and Apple demanding they kick TikTok from the app store because he’s just super concerned about American consumer privacy!
If you were to dig through the resulting news reports covering Carr’s empty letter, you’d be hard pressed to find a single one that could be bothered to note that Carr doesn’t have any regulatory authority over social media or app stores, the letter has absolutely no meaningful legal backing to support his request, or that Carr himself has absolutely zero credibility on consumer privacy issues.
Yeah, there are serious concerns about TikTok user security and privacy. But there’s equal concern about the privacy violations in the telecom sector Carr actually regulates. And in adtech. And in the internet of things space. And in Chinese-made routers and other hardware. And among app makers, and data brokers, smart TV makers, Wi-Fi-connected toys, modern vehicles, and….
Carr’s voting and policy record has made it pretty clear he doesn’t care about any of that. The sector Carr actually regulates, telecom, has been plagued with a parade of location data scandals showcasing how cellular carriers have repeatedly failed to protect user location data, often to devastating effect. Carr’s been largely a no show on the subject, despite its increased relevance post Roe.
Several former officials who worked with Carr to help AT&T kill net neutrality and lobotomize the FCC’s consumer protection authority have since gone on to work at Targeted Victory, a right wing K Street policy and lobbying shop recently busted trying to smear TikTok on behalf of Facebook. Surely that’s just a weird coincidence, though.
Not only does pushing scary stories about TikTok help Facebook, it helps feed xenophobia to a growing right wing base proud of its own bigotry. This kind of scary rhetoric is of great benefit to any U.S. company that doesn’t want to compete with China. Of course Carr’s letter also does something else incredibly important (to Carr), it puts his name in headlines for no real reason.
As recently noted, you could demolish TikTok today with a giant patriotic hammer and the Chinese government could just nab much of the same data from any number of unaccountable app makers, telecoms, ad brokers, or hardware giants. And they can do that because we have garbage privacy standards, no functional privacy laws with any teeth, and zero accountability.
That’s directly thanks to politicians like Carr, who don’t believe in meaningful privacy oversight, laws, or guidelines of any kind.
It’s extremely easy for U.S. companies like Facebook or Cisco to use politicians as marionettes to create or feed moral panics about China. But the underlying motivations usually have absolutely nothing to do with a genuine interest in US consumer privacy or security. Made evident by those same politicians’ completely hollow track record when it comes to tackling the broader problem.
I have talked for years at Techdirt about how the cord cutting trend, while still continuing, was going to run into a wall due to the way that major sports broadcasts have always been done through cable TV deals. I have also covered the steps, baby or otherwise, different sports leagues and teams have taken to embrace streaming options. MLB’s MLB.tv service has always been great, but suffers from local blackout rules revolving around broadcast rights. Other leagues have worked out their own streaming options, mostly in very limited fashion. One MLS team even went streaming only for its games, cutting the cord from its end.
Speaking of Major League Soccer, while it certainly isn’t the most popular sports league in America, that league is making a giant leap forward for streaming. MLS recently announced that every single one of its games, completely sans any blackout rules, will be streaming on Apple TV for the next decade.
Apple claims that viewers “around the world” can “watch all MLS, Leagues Cup, and select MLS NEXT Pro and MLS NEXT matches in one place—without any local broadcast blackouts or the need for a traditional pay TV bundle.”
This will all be part of a “new MLS streaming service” that will become available in early 2023, with matches offered up through 2032. It will offer both live and on-demand video.
Now, is this going to make cable companies nervous? If they have a couple of brain cells to rub together, yes! Again, MLS is not the NFL, MLB, or the NBA. Or even the NHL. But it’s not some fly by night league, either, and this is a major move into the streaming market. And the real thing that’s going to keep cable company executives up at night should be the potential that MLS has any serious success with this move. If viewership in the league jumps as a result of this sudden new availability to stream games, you can bet other, larger leagues are going to take note.
Apple and MLS have done something notable here. With the NFL currently negotiating with a handful of streaming services for its out-of-market Sunday Ticket service and the NCAA’s Big Ten Conference in the process of selling off its next media rights package, the next big deal may end up cutting out cable altogether. According to John Ourand at Sports Business Journal, Apple is paying somewhere in the neighborhood of $2.5 billion over the 10 years of this agreement. That’s chump change for Apple… and Amazon… and Google.
Today’s announcement heralds the beginning of the end of the traditional way sports in the US are packaged for broadcast. When live, out-of-market sports are no longer the solely to be found on cable, cord-cutting is going to accelerate, much to the dismay of the regional sports networks—and even ESPN.
As predicted for some time now. The dam that is live sports may finally be starting to break, with this MLS deal being the first crack. If other leagues follow suit in any reasonable timeframe — say, in the next 5-10 years — cord cutting is going to become a tidal wave.
Look: there are very real issues with the state of the internet today, including the amount of power a few companies have. But that doesn’t mean any solution is a good solution. Unfortunately, Senator Amy Klobuchar, whenever given the option, seems to put forth the worst possible plan. It’s mind boggling.
For a while now, Klobuchar, along with Senator Chuck Grassley, have been pushing their American Innovation and Choice Online Act (AICOA). It’s got a fair bit of support, including from companies and organizations I often agree with on the issues. But, this bill has serious problems. Many of us raised concerns about those problems, and even made suggestions on how to fix the problems. There are ways to create a bill that would target the actual bad practices of internet companies. But this isn’t it.
For a few months, Klobuchar has apparently been working on a new and improved version of the bill, which was revealed last night. Somewhat incredibly, it fixes none of the problems people raised. The major change: making sure it doesn’t apply to telcosand financial companies.
I only wish I were joking. Of course, this is the same Klobuchar who, on a different antitrust bill, made sure to carve out her state’s largest employer, Target. So, we get it. Klobuchar cares more about making the lobbyists and specific industries happy than tackling the real problems of her bill. It’s pathetic.
The main “focus” of the bill is that it’s supposed to bar certain large companies from preferencing their own products. So, for example, Yelp has spent over a decade whining that Google showed people the results of its own Local search, crowding Yelp results out of search. The bill is designed to say that companies can’t do that any more. Of course, there are legitimate concerns that this will mean certain companies sending people to very useful products that people actually like will violate this bill. The quintessential example of this: when doing a search on a location, Google can point you to Google Maps. But, under this bill, that would be problematic.
discriminate in the application or enforcement of the terms of service of the covered platform among similarly situated business users in a manner that would materially harm competition;
So, Amazon telling Parler that it violates AWS’ terms of service and booting it off the service? That would not be allowed under this bill. Remember, Parler sued Amazon, and a key part of their initial claims was that because Amazon treated Twitter differently than Parler (which wasn’t true at the time, as Twitter had only just signed a deal to use AWS but wasn’t on it yet), that it was anticompetitive for Amazon to remove Parler. The judge in that case was not impressed, but if AICOA becomes law, suddenly we’re going to see a ton of claims like this in response to moderation choices.
Tons of companies already love to claim that moderation decisions are about harm to competition. Hell, for many years, the main company going after Google for antitrust was a really, really spammy tool called Foundem, that was upset that Google had realized that users hated getting sent to Foundem, and downranked the site. Foundem (apparently funded by Microsoft) spent years insisting this was “anticompetitive” rather than “making search work better by not sending users to spammy sites they don’t want.” But, again, under AICOA, arguments like that are going to have to be considered by judges.
Downranking spammy sites and services, or removing sites that ignores terms of service like Parler, now become competition law minefields.
It’s difficult to see how that’s good for anyone, other than the operators of sketchy sites.
As we’ve noted, everyone in the Senate actually knows this. Because the main reason that Klobuchar keeps this nonsense in the bill and doesn’t fix the language, is because she knows that this is the only way to keep Republicans on the bill. Republicans see this content moderation trojan horse in the bill, and are thrilled with it. Because they think it’s going to allow lawsuits to protect Parler, Truth Social, and their other also ran websites.
Remember, Ted Cruz was so excited about this bill because it would, in his words, “unleash the trial lawyers” to sue Google, Facebook and others for content moderation decisions.
Republicans are supporting this bill because they know it will be used to hit internet companies with all sorts of lawsuits over their moderation decisions.
Of course, it appears that some Republicans worried (or, rather, some telco lobbyists told Republicans) that the law might ALSO result in broadband providers facing the same sorts of nonsense lawsuits. Indeed, part of the original bill could have been read as a kind of net neutrality bill in disguise, because larger ISPs would be barred from similarly “favoring” services over others in a way deemed anticompetitive. And you can bet that some telcos that rely on things like zero rating were worried.
So, that brings us to the major change in this new version of Klobuchar’s bill: she carved out the telcos to make sure the bill doesn’t apply to them. Even though telcos are way more of a competition problem than any online service. Here’s some new language in the bill excluding telcos. It explicitly says that the definition of an “online platform”:
does not include a service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service.
Got it? So, no preferencing. Unless you’re the only broadband player in town. Then, go hog-wild, according to Senator Klobuchar.
Nice work there. That won’t make people cynical at all about the political process.
Of course, once again, this is almost certainly appeasement to Republicans, who, for clear political reasons, want to continue to pretend that telcos are no big deal, and that it’s only the big internet providers who are evil.
It makes no sense at all that Democrats like Amy Klobuchar are playing right into their hands, and giving them everything that they want. But, of course, Klobuchuar has decided for political reasons that she wants to be seen as the senator who took on big tech for her next presidential campaign. And, if that means handing Republicans all the tools they need to file a ton of vexatious lawsuits to try to force companies to enable more hate speech and propaganda, so be it.
It’s pure cynical opportunism.
Oh, and also, it looks like financial firms got a little carve out as well. The original bill said the term online platforms would apply to websites that “facilitates the offering, advertising, sale, purchase, payment, or shipping of products or services…” The new version of the bill covers those that “enables the offering, advertising, sale, purchase, or shipping of products or services…”
So, the same list minus payments.
That’s two giant industries — telcos and banks — that were able to secure their carveouts. But, no effort to fix any of the actual problems of the bill.
With the original bill, NERA Economic Consulting had written up an analysis of companies that would be considered covered platforms in the bill, noting that it directly would hit just six: Google, Apple, Facebook, Amazon, Microsoft, and likely TikTok. However, it also noted that there were 13 other companies that were below the size thresholds in the bill, but close enough that they would likely “take measure to avoid significant risk incumbent upon exceeding the thresholds.” Notably, many of those included broadband companies and financial companies. By my count, the new carve outs in the bill likely cut that list of 13 by at least 7.
It’s possible that some of the others might be excluded as well, though I’m not as sure. Still, it seems pretty clear that these new carveouts were directly because of lobbying by these firms that didn’t want to be included, despite the fact that all are arguably much more problematic, and have much less readily available competition than the companies targeted by the bill.
It’s enough to make one think that senators like Klobuchar don’t really care about doing the right thing at all. They just want to be seen as doing something.
Google’s market share and capacity to gather billions of data points has made it the most popular target for so-called warrants that seem to elude both particularity requirements and the Supreme Court’s decision in the Carpenter case.
To be a reasonable search, law enforcement is supposed to be able to show the information it seeks can be found where they say it is and be relevant to the investigation. Reverse warrants — warrants in which law enforcement seeks location data and other info from everyone in a certain area at a certain time — only satisfy one of these requirements. If courts are persuaded the only thing that needs to be shown is the likelihood Google has this data, then the warrants are “good.”
If the warrants need to show the data sought pertains to criminal suspects, the warrants should obviously fail. Rather than showing probable cause to search for data related to suspects, reverse warrants turn everyone in the area into a potential suspect and allows law enforcement to work backwards from the data dump to identify people it feels might be involved in the crime being investigated.
In a legal brief filed in the case, Google said geofence requests jumped 1,500% from 2017 to 2018, and another 500% from 2018 to 2019. Google now reports that geofence warrants make up more than 25% of all the warrants Google receives in the U.S., the judge wrote in her ruling.
Some belated pushback has begun, courtesy of the state of New York. There’s more pushback on the way, this time via the companies targeted by geofence/reverse warrants and so-called “keyword” warrants, which demand information on internet users who have searched for certain terms. Google is the primary recipient of these warrants as well.
Reform Government Surveillance supports the adoption of New York Assembly Bill A84A, the Reverse Location Search Prohibition Act, which would prohibit the use of reverse location and reverse keyword searches.
This bill, if passed into law, would be the first of its kind to address the increasing use of law enforcement requests that, instead of relying on individual suspicion, request data pertaining to individuals who may have been in a specific vicinity or used a certain search term.
These reverse warrants have serious implications for civil liberties. Their increasingly common use means that anyone whose commute takes them goes by the scene of a crime might suddenly become vulnerable to suspicion, surveillance, and harassment by police. It means that an idle Google search for an address that corresponds to the scene of a robbery could make you a suspect. It also means that with one document, companies would be compelled to turn over identifying information on every phone that appeared in the vicinity of a protest, as happened in Kenosha, Wisconsin during a protest against police violence. And, as EFF has argued in amicus briefs, it violates the Fourth Amendment because it results in an overbroad fishing-expedition against unspecified targets, the majority of whom have no connection to any crime.
These are problematic. But so are the data-harvesting efforts of tech companies. Americans are generally leery of the always-on tracking and data collection these companies engage in. They become significantly more worried when they discover just how easily the government can access this massive amount of data.
Tech companies are right to oppose government surveillance overreach. But they also need to be a lot more honest with their users, informing them in plain English about what’s being collected, when it’s being collected, how long it’s retained, and what the aggregate collection can reveal about their activities and social connections.
They also should do more to assure third party app developers aren’t abusing permissions to collect even more data government agencies can obtain without a warrant. And they should give users easy ways to opt out of collections and ensure users are well informed about potential usability downsides of opting out so they can grant truly informed consent to service providers.
Making noise about government surveillance doesn’t excuse the bad habits of tech companies. While it’s good to see them stand up against government overreach, they should probably take this opportunity to engage in a bit of introspection to see if they’re not just making the situation worse by hoovering up every bit of data possible, putting it only a questionable piece of legal paperwork away from the government’s all-seeing eyes.
Apparently, I never should have wished on that old monkey’s paw for copyright term reduction. One of the very reasons why Techdirt exists in the first place, and why it was started nearly 25 years ago, was to fight back against over expansive copyright laws, and, as such, we’ve spent many years and many posts arguing about the problems of excessive copyright terms. Indeed, there are few things I’ve hoped for more in these two and a half decades than for Congress to realize the dangers of excessive copyright and to move to shorten copyright terms back towards their actual constitutional underpinnings.
Almost exactly ten years ago, Republicans in Congress actually seemed to recognize that copyright terms were too long, and published a paper arguing, in a principled way, for shorter copyright terms. Of course, within 24 hours, the screaming responses from Hollywood caused the paper to be pulled, and for the author of the paper to be fired.
Everything about this bill is ridiculous and almost certainly unconstitutional. And I say that as someone who was arguing for shorter copyrights that were more closely aligned with the Constitution since Josh Hawley was in a private boys prep school (which is funny since he so wants to present himself as a man of the common people).
So, let’s go through the bill, and discuss what actually makes sense, but also why Hawley’s attempt here is so ridiculously bound to fail. It starts out by returning copyright term to what Hawley (incorrectly) refers to as the “original term.”
(1) ORIGINAL TERM.—Notwithstanding any provision of title 17, United States Code, or any other provision of law, copyright in any work shall endure for 28 years from the date it was originally secured.
(2) EXTENSION.—The holder of a copyright under paragraph (1) shall be entitled to a renewal and extension of the copyright in the applicable work for a further term of 28 years if the holder applies for that renewal and extension during the 1-year period before the expiration of the original term of the copyright under that paragraph.
So, first off, if we’re going back to the “original term” that would be 14 years with a 14 year renewable extension possible. The US didn’t shift to a 28 year/28 year extension copyright term until the Copyright Act of 1831. Also, I mean, if we’re going back to “original” copyright thinking, the law only applied to maps, charts, and books. Hell, sound recordings weren’t even covered by federal copyright law until 1972.
Anyway, there are actually strong public policy reasons to consider returning the US to a 28 year/28 year extension copyright system. Evidence has shown a massive cost to the public of our over extended copyright law — and the constitutional underpinnings of copyright law are that it must benefit the public (not, necessarily, the copyright holder). On top of that, back when we did have a 28/28 copyright system (which we had until 1978), the vast, vast majority of copyright holders did not renew their copyrights at the 28 year mark. The one exception, by the way, was movies (which, hold that thought…).
So, there are perfectly good, principled policy reasons to push for shorter copyright. Indeed, there are economic studies that have suggested the ideal copyright term for public benefit is somewhere around 15 to 38 years. And, it seems that a perfectly reasonable way to set this up is to have extremely short copyright terms, with frequent renewal periods that grow increasingly expensive. If it’s not worth it for someone to renew, let the work go into the public domain where the public can make use of it.
Of course, there are a few problems with jumping into this approach, with a big one being that in order to do this, the US would have to immediately violate a decently large number of international treaties. However, that’s long been the excuse of those looking to extend copyrights ever longer, or pushing ever more draconian copyright laws on the rest of us. They go running to international trade negotiations and slip in something awful, and then run back to Congress, demanding that we make copyright worse to meet our “international obligations.” After all, the architect of the DMCA, Bruce Lehman, has publicly admitted that this is how he got the DMCA into law. After Congress refused to pass it, he ran to Geneva, and got an international treaty passed, then went back to Congress insisting it had to enact the DMCA to comply with our “international obligations.”
That said, the reality is that Congress is not bound by any international treaties, and can pass legislation that violates them. That doesn’t mean it won’t create some international messes, though, and that could lead to retaliation in a variety of forms.
The next section of the bill then goes even further, and into murkier legal territory, by trying to claw back copyright terms already granted, making the law retroactive:
(2) RETROACTIVE EFFECT.—
(A) IN GENERAL.—Subject to subparagraph (B), subsection (a) shall apply with respect to a copyright that, on any date on or after May 1, 2022, is owned by a person that—
(i) has a market capitalization of more than $150,000,000,000; and
(ii)(I) is classified under North American Industry Classification System code 5121 or 71; or
(II) engages in substantial activities for which a code described in subclause (I) could be assigned.
Phew. So there’s a lot to break down here. This is Hawley’s weird attempt to make it obvious to everyone that this is, effectively, a bill of attainder, and specifically designed to punish Disney. Hawley, who positions himself as a “constitutional scholar” surely knows that bills of attainder are unconstitutional. I mean, it’s right there in Article I, Section 9, Clause 3:
No Bill of Attainder or ex post facto Law shall be passed.
A bill of attainder is defined as the legislature effectively targeting an individual, group, or company for punishment. And, I mean, Hawley didn’t shy away from making it clear that this was a bill of attainder in his press release, literally headlining it “Hawley Introduces Bill to Strip Disney of Special Copyright Protections.” That press release title is basically “hello, I am introducing a bill of attainder.” Because Disney has no “special” copyright protections. It just has copyright protections. And then literally calling out the company you are trying to punish as the reason for your bill is effectively handing them their brief to sue to stop the law as unconstitutional.
But, to really cement this home, while the bill would restrict all future copyright to a maximum of 56 years, it would strip only a small number of companies of their current copyrights. And from the text above, you can see how narrowly focused the bill is. Basically, everyone who has extremely long copyrights today can keep them unless the copyright is held to a company with a market cap over $150 billion (Disney is currently around $200 billion), and is classified in the NAICs system as being in two specific industries: 5121 for “Motion Picture and Video Industries” and 71 for “Art, Entertainment, and Recreation” which is the code that generally applies to theme park companies.
Doing a quick search around, it appears that the retroactive nature of the bill may only apply to a very small number of companies which are in those classifications and over $150 billion in market cap. On the Hollywood studio side, you have Disney and Comcast NBCUniversal (though NBCUniversal’s primary NAICS code is listed in 5152 for “pay and specialty TV”), but clause II would likely cover it. Netflix’s primary classification is otherwise, but it would also fit.
I guess it’s possible Amazon could get covered by this as well, as it owns MGM. MGM by itself has a much smaller market cap, but Amazon has a larger one. So if you lumped them together, it could take away all of Amazon’s copyrights and… well, wouldn’t that be interesting? Viacom’s market cap is below the threshold. Arguably, Apple might be covered as well. The new Warner Bros. Discovery market cap is also way below the threshold.
So, end result, no new copyrights can last more than 56 years. Most existing copyrights remain until they were set to go into the public domain, except for the um, “woke” corporations of Disney, NBCUniversal, Netflix, Amazon and Apple. It sure looks like this is directly targeting a very small number of companies — companies that Republicans have been known to criticize heavily.
There is also the takings issue. In the past, I’ve seen (mainly copyright maximalists) argue that reducing copyright would violate “the takings clause” of the 5th Amendment. This is the part that says “nor shall private property be taken for public use, without just compensation.” In general, I have problems with this applying to copyright, because I don’t think it’s appropriate to call copyright “private property.” And, in fact, if it is then it seems that the takings clause should have been violated when we massively extended copyright with the 1976 Copyright Act, and again in 1998 with the Sonny Bono Copyright Term Extension Act. In both cases, works that were slated to reach the public domain were “taken” back and held in copyright for many more years. If that’s not a “taking” under the 5th Amendment, then shortening copyright terms shouldn’t be either.
Still, I would bet that Disney and others would claim otherwise, and they would have to fight their way through the court. And we’ve seen that this particular court (even very recently) takes a very broad understanding of the “takings clause,” to the point that it would probably need to overrule its own ruling from just last year to decide otherwise.
There is one final clause in the bill, a weak attempt to deal with cases where some of the companies listed above have copyrights that would expire under this bill, but which are still in active use being licensed. There, it includes some terms under which the license would expire over a 10 year period, effectively phasing out the copyright over that time.
(B) LICENSING.—If, as of May 1, 2022, a person is operating under a license with respect to a copyright that is subject to subparagraph (A) and that, because of the application of that subparagraph, would expire during the 10-year period beginning on May 1, 2022, that person shall continue to hold the rights contained in that license (to the exclusion of any person not granted those rights by a license before May 1, 2022) for a period that is the shorter of—
(i) 50 percent of the remaining license term, as of May 1, 2022; or
(ii) 10 years, beginning on May 1, 2022.
And, well, whatever. It’s not like this bill has a snowball’s chance in hell of going anywhere. Because it’s not actually meant to go anywhere. It’s all part of Hawley’s non-stop performative bullshit, playing to a base he believes is so stupid that they’ll lap up whatever culture war nonsense he puts in front of them. And, right now, they want their politicians to “punish” Disney, because Disney execs offered some mild criticism of Florida’s pro-bigotry bill.
Copyright terms should be reduced. Massively. But this isn’t going to do it. Nor is it actually intended to to do it. Copyright term reduction is just a convenient tool for Josh Hawley to do Josh Hawley kinds of things. Anyway, that will teach me never to wish on the old monkey’s paw for copyright term reduction ever again.
I feel like I keep needing to write this, but once again, no matter who does it and no matter which company they’re targeting, it’s wrong for politicians to promise to punish companies for their speech. For some reason, many people’s position on this point changes based on whether or not they like or dislike the politician, and whether or not they like or dislike the company. But it’s wrong.
All of this is grandstanding nonsense, but it’s designed to suppress speech. It’s designed to punish companies for speech that these elected officials dislike. And that’s even if the companies have said something stupid or acted in a way that deserves a regulatory response. By positioning any response as retaliation for speech, these politicians are fundamentally going against the 1st Amendment.
Some have argued that these retaliatory threats don’t amount to an actual 1st Amendment violation because a single politician can’t pass legislation by themselves. But you don’t need to pass legislation to violate the 1st Amendment. Indeed, in Bantam Books v. Sullivan the Supreme Court noted that merely informing someone of “objectionable” speech could violate the 1st Amendment.
While not an exact match, in that case book distributors were informed by a Commission of books that the Commission felt were “objectionable”, with the vague threat that if the distribution went ahead, then some sort of legal punishment might follow. The Court not only found that this violated the 1st Amendment, but that in some ways, the mere threat was worse than if an actual censorial regulation had been put in place. Because when it’s just more vague statements there is less definition in how to appeal, and much greater likelihood of simply over-censoring.
Unfortunately, this now seems to have become the norm on both sides of the political aisle. Browbeat companies for their speech, and threaten to pass regulations (even if those regulations might make sense absent the question of retaliation) in response to the speech. This only serves to put pressure on companies to be silent — which appears to be what these politicians want.
And it is that wish for silence, and the implicit threat in response to speech, that is so problematic.
Even in the cases where you might agree with the underlying regulatory proposal, you should be against these threats because they actually make the regulatory proposals that much less likely to be effective, because companies will be able to challenge them in court as violating the 1st Amendment due to the stated threats of these grandstanding politicians.
If you believe that certain regulations are necessary to deal with certain companies, then make that case. But if you claim that companies need to be punished because of their speech or political activity, then you are a part of the problem.
We’ve noted for a while that DC, and particularly the GOP’s, interest in “antitrust reform” is somewhat hollow. For one, while the United States is rife with heavily monopolized business sectors (insurance, health care, telecom, banking, airlines), this recent batch of “reform” only specifically targets large technology companies. It’s as if these other sectors (most notably telecom) simply… don’t exist.
Even then, the bills we’ve seen so far are often clumsily written, and include weird limitations on which companies should fall under scrutiny. For example, several of the heavily hyped bills being promoted over the last year set an arbitrary market cap of $600 billion. Amusingly when Facebook scared investors away with its lame Meta pivot, it fell below that scrutiny threshold.
The GOP side of “antitrust reform” has been particularly hollow. Even Ken Buck, who has been the cheerleader for narrow antitrust reform on the GOP side, generally likes to ignore that telecom monopolies like AT&T and Comcast exist. Buck has literally supported every consolidation and deregulatory pipe dream of AT&T and Comcast for decades. You’re apparently supposed to ignore that.
And like much of the GOP, Buck’s head has been filled with pudding thanks to divisive culture war bullshit being used to agitate low information voters. For example, over the weekend in a since deleted Twitter thread (screenshotted text below), Buck threatened to utilize the government’s antitrust enforcement power to “smash woke capital” — specifically Apple — to punish the company for its opposition to anti-LGBTQ bills in Florida and elsewhere:
If you can’t read the screenshot, it says:
THREAD: Antitrust is the best way to smash woke capital and protect our kids.
Companies that grow to colossal size, monopoly size, use their power to change politics to make more profit.
This power is a function of their wealth and control over the economy.
At some point, they start to control the information flow in our democracy.
We end up being governed by the CEOs of monopolies and their hard-left employee base.
Simple solution: restore competition by ending the monopoly.
Again, while Buck is routinely held up as a Republican who “gets” the need for antitrust reform, he doesn’t, really. Buck, (like most of the GOP) will be first in line to oppose antitrust reform should it be applied to genuinely monopolized sectors like telecom. Yet here he’s suggesting that U.S. antitrust enforcement should be leveraged against Apple simply because it wants to engage in some light lobbying opposition to bills that would harm Apple LGBTQ employees and customers.
He’s since deleted the tweet, suggested he understood the stupidity of it, or at least understood that threatening to punish a company for its lobbying activity would violate the First Amendment. But the dumb tirade was also notable given that Rep. David Cicilline, one of Buck’s key allies in the “bipartisan antitrust reform” effort, is openly gay:
For years, experts pointed out that U.S. antitrust reform had grown toothless and frail, our competition laws need updating in the Amazon era, and “are consumers happy?” (the traditional consumer welfare standard) doesn’t actually measure all aspects of potential harm in complex markets. Like so many issues, this shouldn’t be a bipartisan fight for better policy and law. Yet it’s often framed as a partisan issue to sow division.
What we should have gotten was a serious examination of all industries and proposals that fairly targeted very clear monopolization, market failure, and anti-competitive behavior across the board. Instead we got a bunch of weird, hollow promises and performances. Specifically by the GOP, whose 40 year track record of coddling monopolies at nearly every turn (again, just look at telecom) is undeniable.
Beyond that, threatening to use the government’s antitrust authority to attack a company for taking an ethical position on ignorant and backward policies in states teetering toward authoritarianism is ignorant policy malpractice itself.
For the GOP, extremism, victimization porn, and culture war performances have utterly displaced serious policymaking. Yet somehow much of the mainstream press and policy punditry haven’t gotten the memo, and continue to help the GOP pretend their interest in “antitrust reform” is genuine. It’s not. It never was.
As we’ve noted previously, much of the GOP’s assault on “big tech censorship” (including the fracas over Section 230) is an attempt to force tech companies to carry race-baiting propaganda, a cornerstone of modern GOP power in the face of unfavorable demographics and a sagging electorate.
And while surely there are a few GOP representatives (like Buck) who care a tiny bit about monopoly power, the Trump GOP’s clear goal at the moment isn’t meaningful policy, healthier markets, or consumer protection, it’s in further filling the heads of targeted voters with pebbles and hate. Which, if you hadn’t been paying attention (see: Fox News) is working extremely well.
Never underestimate the ability of the baddies to exploit the good nature inherent to most people. That’s the takeaway from this latest depressing news that malicious people are abusing law enforcement tools to harvest personal information to exploit. Here’s William Turton, delivering the most recent bit of bad news for everyone everywhere.
Apple Inc. and Meta Platforms Inc., the parent company of Facebook, provided customer data to hackers who masqueraded as law enforcement officials, according to three people with knowledge of the matter.
Apple and Meta provided basic subscriber details, such as a customer’s address, phone number and IP address, in mid-2021 in response to the forged “emergency data requests.” Normally, such requests are only provided with a search warrant or subpoena signed by a judge, according to the people. However, the emergency requests don’t require a court order.
Claiming “circumstances” are “exigent” allows law enforcement to bypass several constitutional protections, and, just as often, critical backstops within the law enforcement chain of command. That’s why verification is almost impossible. If something is an “emergency,” time is of the essence. Senders and recipients will often bypass steps meant to prevent abuse because it’s assumed there’s no time to run things up the ladder or engage in verification efforts.
The founder of the Recursion Team was a then 14-year-old from the United Kingdom who used the handle “Everlynn.” On April 5, 2021, Everlynn posted a new sales thread to the cybercrime forum cracked[.]to titled, “Warrant/subpoena service (get law enforcement data from any service).” The price: $100 to $250 per request.
“Services [include] Apple, Snapchat, Google (more expensive), not doing Discord, basically any site mostly,” read Everlynn’s ad, which was posted by the user account “InfinityRecursion.”
This group of malicious hackers is no longer active under this name. But they’re still out there and appear to be reorganizing as a new group called Lapsu$. The attacks will continue because they literally cannot be stopped. This is a legal process with nearly no legal backstops. There are hundreds of thousands of law enforcement agencies worldwide. And there are only so many steps recipients can take to ensure the emergency data request is legitimate.
This leaves recipients in the uneasy position of either possibly further endangering someone or handing out personal data to criminals and malicious hackers. There’s little the companies they work for can do about it either, since it makes the most sense to give those charged with handling government requests for data significant leeway to comply with requests.
The blame stops at the people impersonating law enforcement officers to illegally obtain personal data. People make mistakes for good reasons and those handling emergency requests shouldn’t be faulted for occasionally blowing a call on an emergency order.
“In every instance where these companies messed up, at the core of it there was a person trying to do the right thing,” said Allison Nixon, chief research officer at the cyber firm Unit 221B. “I can’t tell you how many times trust and safety teams have quietly saved lives because employees had the legal flexibility to rapidly respond to a tragic situation unfolding for a user.”
This is exploitation of a system with inherent flaws. That’s all there is to it. It is not that law enforcement handles things worse than the private sector or vice versa. It’s a system that relies on people’s willingness to assist law enforcement during emergencies and law enforcement’s efforts to get out of its own way when lives are on the line. With so many companies storing personal data and so many law enforcement agencies and identities to choose from, most of the mitigation will be aimed at reducing the aftermath of honest mistakes made by tech company employees, unfortunately.
As the battle for streaming market share accelerates, the fighting between companies has increasingly gotten dumber. Such as when AT&T’s streaming TV app was pulled from Roku customer hardware because the two companies couldn’t agree on data sharing parameters. Or when Google TV customers almost lost access to NBC content because those companies couldn’t negotiate like adults either.
Of course the bickering is happening on several levels. Between telecom and broadcasting giants and streaming hardware vendors. Or between streaming hardware vendors and big tech giants making inroads in TV. Or, when big tech companies bicker among themselves.
“If this is the case, Apple is playing a dangerous game of hypocrisy, having recently defended its own fees after being sued by Fortnite maker Epic Games.”
When asked specifically if that’s what they were doing, Apple remained cryptic:
“We’ve updated the Apple TV app to comply with Google Play’s guidelines around purchases and rentals.”
Whether it’s cable TV retransmission feuds or big tech standoffs, this is all immeasurably confusing for consumers, who can’t be certain a service or app will work as advertised at any given moment. And as the financial stakes get bigger as streaming grows, this kind of petty bickering will only expand.
The product pitched to the FBI by NSO was called “Phantom.” It could target US phone numbers — something the FBI tested by buying a bunch of burner phones and deploying the provided malware to them. It all seemed to work just fine (and has now become a very interesting part of Facebook’s current lawsuit against NSO Group), but the FBI’s legal counsel seemed concerned turning phones into fully compromised listening devices might be more than courts would be willing to bless under existing wiretap laws that were written long before anyone foresaw the widespread use of powerful computers capable of being carried around in a person’s pocket.
Two Republican lawmakers are pressing Apple and the Federal Bureau of Investigation to provide information about spyware made by the Israeli company NSO Group, according to letters obtained by CNBC.
Two Republican lawmakers are pressing Apple and the Federal Bureau of Investigation to provide information about spyware made by the Israeli company NSO Group, according to letters obtained by CNBC.
The letters, dated Thursday and signed by House Judiciary Committee Ranking Member Jim Jordan, R-Ohio, and subcommittee on civil rights Ranking Member Mike Johnson, R-La., come after The New York Times reported earlier this year that the FBI had acquired surveillance technology from the NSO Group.
The letter [PDF] wants to know why the FBI retained the malware for nearly two years if it never intended to use it. Going beyond that, the Congressional reps want all information related to the FBI/NSO partnership that may never have been fully consummated, despite spending $5 million on licenses.
Whether or not we, the people, will ever be made privy to these answers remains to be seen. But they are the sort of questions Congressional oversight should be asking and will possibly force the release of some information the FBI would rather not share with anyone — even the people it’s supposed to be answering to.
Here’s the information Reps Jim Jordan and Mike Johnson want the FBI to hand over:
All documents and communications between or among the FBI and the NSO Group, Westbridge Technologies, or any other NSO Group affiliate or subsidiary referring or relating to the FBI’s acquisition, testing, or use of NSO Group spyware;
All documents and communications referring or relating to the FBI’s decision to acquire NSO Group spyware; and
All documents and communications referring or relating to the FBI’s or Justice Department’s assessment of the legality of using Phantom against domestic targets.
The same reps also have some questions for Apple, which has begun notifying iPhone users it believes have been targeted by NSO exploits. But what they’re asking for here might be a bit more problematic, considering Apple’s main obligations are to its customers (rather than taxpayers and/or Congressional oversight.) On top of that, its efforts to detect NSO malware are ongoing and may be compromised by making some of this information public. From the letter [PDF] to Apple:
[P]lease provide the following information:
Apple’s ability to detect when a user of an Apple device has been targeted by Pegasus or Phantom;
The number of attacks using Pegasus or Phantom that Apple has detected, the dates of those attacks, the geographical regions in which Apple detected those attacks, and any other relevant information about those attacks; and
A staff level briefing about Apple’s communications, if any, with representatives of the Justice Department, Federal Bureau of Investigation, or any other U.S. Government entity about Pegasus or Phantom.
There’s a lot in this request that’s of public interest, especially where attacks have been detected and any information Apple might have on where these attacks originated. But it seems Apple would not be particularly willing to explain, publicly and in detail, how it detects these malware attacks.
We’ll see what these letters actually produce. They both carry the same deadline: St. Patricks Day, 2022. Whatever information does end up in the hands of the Judiciary Committee is unlikely to end the long run of bad news for NSO Group.