New Trump Book Threatens To Jail Zuckerberg, Putting Zuck’s Groveling Letter In New Light

Stupidity

from the grow-a-fucking-spine,-mark dept

Was Mark Zuckerberg’s cringey spinelessness just an attempt to grovel before Donald Trump to avoid a vindictive criminal lawsuit? Given the timing of the letter coming out just before Trump’s new book that threatens to imprison Zuckerberg in a bout of authoritarian vindictiveness, it sounds like the reason Zuck is feeding the MAGA conspiracy theories is to try to appease Trump.

Earlier this week, I wrote about Mark Zuckerberg’s preposterously spineless letter to Jim Jordan, in which he repeats a bunch of things that were already public knowledge about the White House suggesting that Facebook could help save lives by not promoting dangerous anti-vax information. However, he did so in a manner that would allow people like Jim Jordan and Donald Trump to pretend that he moderated content because the Biden White House ordered him to, and that this was a big scandal that Meta would not let happen again.

In that post, I noted a key part of Zuckerberg’s letter: the claim that now he would stand up to government coercion. But that’s laughable, given that the letter itself is him caving in to threats of coercion by Jim Jordan.

Multiple people saw the news of the letter and claimed that it was an admission by Zuckerberg that he wanted Donald Trump to win. I don’t know if that’s true, but it seemed pretty clear that the entire intent of the letter was to position himself as a suck-up to Trump in case Trump wins.

Now there’s a bit more evidence for that. Politico reported that Donald Trump has a new book coming out next week in which he not only blames Mark Zuckerberg for apparently trying to rig the election against him, but also talks about wanting to put Zuckerberg in jail for the rest of his life if he dares do anything to influence this election.

This is ridiculous (and dangerous) on multiple levels. The claim that he helped rig the election is nonsense, based on Zuck’s charity spending a bunch of money on better election infrastructure. As Zuckerberg said in his spineless letter, that was on a non-partisan basis.

The only way spending on secure election infrastructure is biased towards one party is if the other party was planning to abuse insecure voting infrastructure to steal an election. So one way to read this is a Trump admission that Zuckerberg’s effort to make the election more secure foiled his plans to steal it.

Either way, part of Zuckerberg’s attempt to get back in the good graces of Trump was to claim he wouldn’t do that again merely because some people thought it looked biased in one direction.

One of those “some people” appears to be Trump:

Trump writes that Zuckerberg “would come to the Oval Office to see me. He would bring his very nice wife to dinners, be as nice as anyone could be, while always plotting to install shameful Lock Boxes in a true PLOT AGAINST THE PRESIDENT,” Trump added, referring to a $420 million contribution Zuckerberg and his wife, Priscilla Chan, made during the 2020 election to fund election infrastructure.

So, first off, funding election infrastructure is not plotting against the President. I mean, that’s simply unhinged. But then he claims that if it happened again, he’d put Zuckerberg in jail:

“He told me there was nobody like Trump on Facebook. But at the same time, and for whatever reason, steered it against me,” Trump continues. “We are watching him closely, and if he does anything illegal this time he will spend the rest of his life in prison — as will others who cheat in the 2024 Presidential Election.”

The problem with basically all of this is that it’s made-up nonsense, pushed by the MAGA faithful to try to make sure that no one ever calls them on their bullshit.

Facebook did not “steer against” Trump. Multiple studies showed the exact opposite. Reports showed that Facebook actually had a different, more lenient, set of rules for top Republicans because they so frequently violated the policies on the site. Other studies showed that Trumpist content spread better on Facebook, and that the top interactions on Facebook were almost entirely from Trump and friends. Indeed, it was leaked that there were different rules put in place to limit the reach of left-leaning sites.

And the “thanks” that Zuckerberg gets for all that is to be accused of interfering against Trump in the election and being threatened with a vindictive criminal trial.

Zuckerberg was likely aware of this book when he sent the letter earlier this week, which makes that letter so much more pathetic. It’s not even that Zuckerberg can’t stand up to the lies and bullshit framing of Jim Jordan — which is only there to pressure Zuckerberg to again favor Trump & Friends over Democrats — but that Zuckerberg feels the need to do this fake show of groveling to appease Trump, because Trump is so stupid he believes the made up theory that Zuckerberg was against him all this time.

Of course, lots of billionaires support one candidate or another. Elon, obviously, has gone all in for Trump, leading ExTwitter to becoming a non-stop campaign ad for Trump while pushing nonsense conspiracy theories (often pushed by Elon himself) against Harris and Walz.

The hypocrisy is staggering. If Zuckerberg deserves life in prison for supposedly favoring Biden (despite plenty of evidence to the contrary), then by that logic, doesn’t Musk deserve the same for openly turning ExTwitter into a 24/7 Trump propaganda machine? Of course not. In Trump’s world, it’s only a crime when the other side does it. But last I checked, billionaires on both sides of the aisle have the right to free speech and political preferences – even if Zuck is too spineless to stand up for his.

But, really, the timing of Zuck’s letter suggests it was done on purpose to try to get back in Trump’s good graces at the same time this book was coming out. It just reinforces that Zuckerberg is willing to cave to political pressure. And that pressure is from Trump.

At the same time, Trump’s claims in the book suggest this latest pathetic political ploy won’t even work. Imagine being as rich and as powerful as Zuckerberg, and feeling the need to feed a nonsense conspiracy theory, which you know is a nonsense conspiracy theory, just in the hopes that maybe Trump and his crew will stop falsely claiming you rigged the election (another nonsense conspiracy theory).

It’s a masterclass in spinelessness: groveling to appease a conspiracy theory that you yourself know is baseless, all in the vain hope of avoiding the wrath of a vindictive ex-president.

Filed Under: donald trump, elections, free speech, mark zuckerberg, threats
Companies: meta

AT&T Has To Settle Over Another 911 Outage, This Time For $950k

(Mis)Uses of Technology

from the oh-sorry-were-you-expecting-that-to-work? dept

As a “trusted ally” in the government’s vast and unaccountable domestic surveillance programs, AT&T receives oodles of government favors. From broad and often mindless deregulation and massive deployment subsidies to $42 billion in tax breaks in exchange for doing absolutely nothing, the U.S. government adores slathering its patriotic partner with cash.

Which makes it all the more frustrating that the company can’t do basic things properly, like keep the nation’s wireless callers connected to essential 911 emergency services.

Last February, a massive outage knocked AT&T wireless services offline for large swaths of the country, blocking more than 25,000 911 calls from being completed. Then the same thing happened in April, when a massive outage caused connectivity issues across South Dakota, Nebraska, Nevada, and Texas. Now AT&T’s been fined $950,000 by the FCC for yet another 911 outage, this one from last April:

The FCC today announced a $950,000 settlement with AT&T to resolve an Enforcement Bureau investigation into whether the company violated FCC rules by failing to deliver 911 calls to, and failing to timely notify, 911 call centers in connection with an outage AT&T experienced on August 22, 2023, in parts of Illinois, Kansas, Texas, and Wisconsin.

AT&T, for what it’s worth, enjoys revenues of around $34 billion each quarter. This outage last year was apparently caused by an independent contractor that “inadvertently disabled a portion of the network” during unscheduled testing that didn’t adhere to existing protocols.

Keep in mind these outages are happening simultaneously with a series of hacks that have compromised the data of more than 73 million of its customers. And it comes as the company’s lobbyists work tirelessly to dismantle both federal and state oversight of telecom giants, including a recent Supreme Court Chevron decision that could ultimately destroy FCC oversight almost entirely.

At some point perhaps somebody in U.S. policy circles might be able to connect the mindless coddling of an unpopular, taxpayer money-slathered monopoly with the consistent sag in performance and network quality, but it may take another several decades of ugly hacks, financial fraud, consumer harms, or consistent 911 outages before somebody with a backbone and a brain connects the dots.

Filed Under: 911, deregulation, fcc, outage, telecom, wireless
Companies: at&t

Streisand Effect: Apple Gets Concept Renderer To Take Down Concept Art For Being ‘Too Realistic’

Overhype

from the out-of-the-bag dept

Let’s dial the clock all the way back to 2007 for just a moment. Beyonce was topping the charts with Irreplacable. Nicholas Cage, the greatest actor of all time, helped make National Treasure: Book of Secrets a hit at the box office. And Apple finally settled a years-long lawsuit against a website called Think Secret, which published rumors it came across about what Apple was going to release next. That settlement included a requirement that Think Secret cease publication, despite it having never leaked anything about Apple directly. Instead, it merely published the leaked information it received. And if that sounds like journalism to you, well, you’re not alone.

But the point is that Apple has a long history of litigious behavior when it comes to leaks and those who report on them. On the flipside, Apple has long had a copacetic view of what are referred to as “concept creators.” These are the folks that, with presumably no insider information or leaks, create mockups of Apple products that don’t exist. Sort of like a near-science fiction wishlist for Apple products, if you will. Or even if you won’t; I don’t care, it’s still what they do.

It appears that those two different types of publication may have inadvertently converged when concept creator Antonio De Rosa produced the following image of what he called the “iPhone Air Flip” phone.

De Rosa created that image as a concept. It’s not a real phone… or is it?

See, Apple’s lawyers contacted him and asked him to alter “some of [his] concepts”, which included that one, based on the reporting I’ve seen. They did so, according to these lawyers, because they were concerned that there would be confusion in the public. Not that they wanted De Rosa to cease creating these sorts of concepts, mind you. They just wanted this one changed.

The official explanation is that because De Rosa’s designs are so widely circulated, they “may actually create consumer confusion”. Apple’s lawyers said that, and also said that they didn’t want De Rosa to stop posting; “we’d rather talk through the nuances of the issue and ideally find a reasonable solution that works for everyone.”

According to De Rosa directly, however, the explanation was a little different.

“Too realistic” is really important here, because it is leading that same public Apple was so afraid of confusing to draw a conclusion that sure seems to make sense to me.

But the conspiracy explanation is that De Rosa’s renders are too good not just because of his obvious talent, but because he’s got too close for comfort with some of his renders. The lawyers don’t appear to have singled out any renders in particular, but if I were a betting woman my money would be on the iPhone Air. 

If that’s indeed the one that’s got Apple worried, that raises another question: why? It’s possible that the concept is incredibly close to what Apple’s making. But it’s also possible – and funnier –that the concept is so pretty that the real folding iPhone won’t be as exciting.

So there are a lot of unknowns here, obviously. Still, for De Rosa to walk away with the idea that any of his images were “too realistic” for Apple’s tastes doesn’t really comport with its claims of customer confusion, except if the image includes something that the real Apple phone doesn’t.

But either way, look! That image in the post? The same one that is being widely circulated across even more publications now, in true Streisand Effect? Seems to be a whole lot more eyes on De Rosa and his renders than there was before Apple got its lawyers involved.

Filed Under: antonio de rosa, iphone, realistic, renders
Companies: apple

Volkswagen Plans To Shift From Selling Cars To Offering ‘Vehicles On Demand’ – And Grabbing Even More Data About Drivers

Business Models

from the you-don't-own-it,-you-only-drive-it dept

Volkswagen Financial Services (VWFS) is a wholly-owned subsidiary of the well-known car manufacturer Volkswagen (VW). An article in the German Auto Motor und Sport magazine reports on a major shift in the way that VWFS, and hence VW, wants to operate (all translations by DeepL):

Volkswagen Financial Services (VWFS) is planning to introduce a new mobility platform in 2025 that will push traditional vehicle sales into the background.

Instead, the use of vehicles, summarised under the term ‘Vehicle on Demand’, will come to the fore, according to a report in ‘Automobilwoche’. This platform, which is to be launched in the relevant markets in the first quarter of 2025 as the successor to the Europcar app, marks a significant change in Volkswagen’s business model.

The CEO of VWFS, Christian Dahlheim, explained:

In future, customers will be able to use the [new] app to take advantage of various mobility offers such as leasing, rental, subscriptions or car sharing. Volkswagen will not provide all offers itself, but will work together with strategic partners, particularly in the area of car sharing.

Because VW will retain ownership over the entire life of the vehicles, it will be able to gather even more data about them and the people who drive them:

Another advantage of this strategy is the comprehensive access to data, both about the vehicles and about the customers. Volkswagen currently collects data on around eight million vehicles, and this figure will continue to rise in the future. This data enables VWFS to determine the optimal marketing channel for returned vehicles – be it remarketing as a leasing vehicle, a subscription, use in car sharing or sale as a used car.

The opportunity to sell many more used cars is an important aspect of the shift to Vehicles on Demand. According to Auto Motor und Sport, VW sold 142,000 used cars in 2020, expects to sell 462,000 this year, and hopes that will rise to a million vehicles in the future. With the new business model, VW wants to become one of the world’s largest used car dealers. Perhaps inevitably, AI will be applied to the data gathered about each vehicle, particularly in order to carry out “automated residual value forecasting”. According to Dahlheim:

The [new] platform should make it possible to optimise prices and residual values, taking into account capacities, logistics costs and market differences within Europe. This opens up new opportunities to market vehicles in different markets depending on demand and thus optimise price leverage.

It’s rather ironic that a company originally tasked by Hitler to produce an affordable vehicle that every German family would be able to buy (hence the name “Volkswagen” –– “People’s Car”) wants to shift to a business model where nobody buys one.

Follow me @glynmoody on Mastodon and on Bluesky.

Filed Under: adolf hitler, app, cars, data, leasing, ownership, rental car, surveillance, tracking, vehicles
Companies: volkswagen

404 Media Shows Online Journalism Can Be Profitable When You Remove Overpaid, Fail-Upward Brunchlords From The Equation

Journalism

from the down-with-brunchlords dept

There was a long period where journalists writing about failing media ventures loved to imply that these collapses meant online journalism was no longer profitable. In reality, the industry had simply become overly infected by waste and mismanagement at the hands of unqualified, affluent incompetents. Smaller worker-owned outlets are now trying to reverse the trend — with some promising early results.

In the wake of the recent collapse of Vice at the hands of incompetent trust fund failson brunchlords, several of the editors and journalists at Motherboard (which I frequently wrote for) decided to build their own tech news outlet: 404 Media. Included in 404 Media’s small stable of employees is Joseph Cox, arguably one of the best cybersecurity reporters currently working.

“We propose a simple alternative,” the outlet wrote when it launched last year. “Pay journalists to do journalism. We believe it is possible to create a sustainable, profitable media company simply by doing good work, making common-sense decisions about costs, and asking our readers to support us.”

While Vice is now off once again pivoting to video — or whatever remaining executives think they’re doing — their former employees are doing the kind of popular, impactful tech journalism Motherboard used to be broadly known for. And in a one-year anniversary post, they once again note that the outlet has proven that worker-owned online news is still perfectly profitable if done correctly:

“We and our colleagues at other journalist-owned publications have shown that small businesses owned by the people doing the work can be successful not just editorially, but can also be financially sustainable.”

Journalism is never going to be the industry to get into if wealth is your primary aspiration. But if you’re interested in journalism as a public service, as the glue that drives meaningful reform and holds our shared collective reality together for the greater good, it’s certainly possible to still making a living.

The bumbling, fail upward brunchlords that now dominate outlets like Vice (and Newsweek, and Sports Illustrated, and CNN, and CNET, and Gannett, etc.) no longer see journalism as public service. Their interest is in building giant, cheaply built, badly automated mindless engagement monstrosities that effectively shit ad revenue at preposterous, impossible scale.

These kind of folks see AI not as a way to build better journalism or reduce the journalist or editors’ workloads, but as a way to cut corners to create mindless engagement slop while simultaneously undermining labor. For these kinds of executives, worker satisfaction, product quality, or the public welfare never enter into it.

These are the kinds of folks that buy older companies like Newsweek or Sports Illustrated, prop up the brand corpses to exploit long-dead reputations, then integrate badly-built AI to slather the internet with low-quality engagement bait or sell shitty supplements.

They’re the kind of grifters that fire workers and editors en masse while throwing lavish and purposeless parties to pretend they’re cementing a reputation in journalism that doesn’t actually exist. That people often can’t tell the difference doesn’t speak well of the broader culture.

Vice in particular failed because a rotating crop of affluent failsons were pulling down exorbitant salaries and burning significant piles of cash on ridiculous ideas, wasteful brand parties, and quarterly strategic pivots that rarely made sense. All while paying the editors and journalists who were doing the actual work in bread crumbs and pocket lint.

Remove these brunchlords from the economics and staff outlets with responsible editors and journalists and… fancy that… suddenly it’s possible to do journalism sustainably again.

Frustrated by the direction of the industry, there’s a growing number of journalists who are either reaching out directly to consumers via newsletters, or are forming smaller, worker owned collectives that prioritize the writing (see: Defector, Aftermath). While it’s still not clear these alternatives will scale in the billionaire egomaniac lawsuit era, they’re at least giving it a go. And having some early success.

Oh, and if you’d like to support the kind of independent journalism we do here at Techdirt, we have lots of options for that as well.

Filed Under: brunchlord, consolidation, journalism, media, reporters, worker owned
Companies: 404 media

Elon’s Standoff With Brazil Reveals Hypocrisy & Overreach By Both Sides

Legal Issues

from the none-of-this-looks-good-for-anyone dept

In the battle between Elon Musk and Brazil, there are no heroes — only two sides engaged in an epic display of hypocrisy and overreach.

You may have heard that Brazil is threatening to ban ExTwitter from the country, possibly by tonight. This comes after Elon said that it was shutting down all operations in Brazil as the judiciary there continued to demand the company remove content that Elon didn’t want to remove. We wrote about some of the backstory in April, when Elon first said he was not going to obey the orders issued by Supreme Court Justice Alexandre de Moraes.

The orders focused on supporters of former Brazilian President Jair Bolsonaro, a very Trumpian figure. His supporters had tried to pull a similar “storming the Congress” kind of move in January of 2023, which was about as successful as the Trumpian storming of the US Capitol two years earlier. Moraes had ordered both that ExTwitter share information on some users who were talking about the storming of the Brazilian Congress, and that some of the accounts be blocked.

What was less reported was that a few days later, ExTwitter quietly agreed that it would comply with the order. But then… it appears it did not. So, more recently, Moraes suggested that he would order ExTwitter’s legal representative in Brazil to be jailed for failure to comply. This is when Elon said they were pulling all operations out of the country.

Now Moraes has responded by saying that Brazil might just ban all of ExTwitter in the country in response.

None of this is unprecedented. We’ve talked in the past about Brazil arresting Facebook officials because WhatsApp wouldn’t reveal info on certain users (because it couldn’t, due to encryption) and then banning WhatsApp (multiple times). So we’ve seen this before.

Either way, Elon does not seem to be taking it well. He posted an image of Moraes in jail, which I’m sure is not winning him many fans among Moraes’ supporters.

In response, there are reports suggesting that Moraes is also looking to freeze Starlink’s assets in Brazil. Of course, Starlink had just received a bunch of press for how it was being used by remote Amazon tribes.

In discussing this on Bluesky, I suggested that both sides are coming out of this looking extremely badly and got pushback, mainly from Brazilians and some people who dislike Musk.

The main argument is that it’s pretty clear that he is violating Brazilian law. First off, it involves disobeying orders coming from the Brazilian Supreme Court, which people insist must be obeyed. Also, the law in Brazil requires that to operate an internet service, you have to have an employee in the country.

But, here’s the thing: as we’ve argued for years, standing up and fighting back against unjust laws is what standing up for free speech and civil liberties is all about.

For example, lots of countries are now pushing for these laws that require internet companies to have local employees in order to arrest them if the company doesn’t do the government’s bidding. We have long pointed out how dangerous this is, as they are effectively “hostage laws” that enable authoritarian countries to put undue pressure on private companies.

Even if you claim that Brazil is somehow not authoritarian, blessing these kinds of laws enables authoritarian countries to use similar laws in similarly problematic ways. Are you okay with Russia having the same law (it does)? Or India?

Indeed, let’s look at what happened in India under Twitter’s previous regime as a comparison. Remember, Modi’s government had demanded that Twitter remove a bunch of tweets supportive of a massive protest by farmers in that country, and Twitter refused. The Indian government (like Moraes in Brazil) claimed at the time that the protests were threatening the stability of the Indian government.

When Twitter refused to pull down those tweets, the Modi government first threatened to jail Indian Twitter employees. Later, it raided Twitter’s offices in India. India threatened to ban Twitter in the country, and some politicians pushed Indians to move to a local competitor, Koo. Twitter fought back against those demands, and many people cheered them on for standing up for free speech and against undue pressure.

I don’t see how you separate these two stories. If Twitter was right to stand up to India when the Modi government made those demands, shouldn’t it stand up to Brazil when it makes similar demands? Isn’t that standing up for free speech?

The fact that Brazil has a hostage law, or that it has a law saying a single Supreme Court justice can demand content be removed, or that it can block a service entirely, or that same justice can freeze other unrelated assets… those are all bad? Those all seem like unjust powers that shouldn’t be allowed as they can easily be abused. Also, many of the original demands were secret, and if you are going to give a government the power to pull down content, the fact that those orders are secret is very concerning.

At the same time, yes, it appears that Elon is fighting all this in a dumb and antagonistic way. Making use of proper legal process upfront makes a lot more sense. Attacking the judge in question directly seems… unwise?

This is why I was saying that both sides look bad here. Musk also looks bad because of his selectiveness. Remember, he keeps claiming that his definition of free speech is “that which matches the law.”

He literally said it again earlier this week:

He notes that he wants ExTwitter to “support all viewpoints within the bounds of the laws of countries.”

Yet, here, he is against the laws in Brazil. At the very least, this highlights again how even Elon Musk doesn’t agree with Elon Musk’s definition of free speech, because it’s nonsensical. Supporting free speech sometimes means you have to stand up against unjust laws.

And, of course, as a reminder, before Elon took over Twitter (but while he was in a legal fight about it), he accused the company of violating the agreement because of its legal fight against the Modi government over their censorship demands. I know it’s long forgotten now, but one of the excuses Elon used in trying to kill the Twitter deal was that the company was fighting too hard to protect free speech in India.

And then, once he took over, he not only caved immediately to Modi’s demands, he agreed to block the content that the Modi government ordered blocked globally, not just in India.

So Elon isn’t even consistent on this point. He folds to governments when he likes the leadership and fights them when he doesn’t. It’s not a principled stance. It’s a cynical, opportunistic one.

But in the end, both sides look bad here. Elon’s response is childish and inconsistent with his own statements and actions elsewhere. And Brazil’s laws seem unjust, and its enforcement of the law seems extremely out of proportion with the alleged violations.

In the end, the real people who lose out are those in Brazil who have relied on ExTwitter as a useful service.

Filed Under: alexandre de moraes, brazil, elon musk, free speech, hostage employees, hostage laws
Companies: starlink, twitter, x

Third Circuit’s Section 230 TikTok Ruling Deliberately Ignores Precedent, Defies Logic

Legal Issues

from the that's-not-how-any-of-this-works dept

Step aside Fifth Circuit Court of Appeals, there’s a new contender in town for who will give us the most batshit crazy opinions regarding the internet. This week, a panel on the Third Circuit ruled that a lower court was mistaken in dismissing a case against TikTok on Section 230 grounds.

But, in order to do so, the court had to intentionally reject a very long list of prior caselaw on Section 230, misread some Supreme Court precedent, and (trifecta!) misread Section 230 itself. This may be one of the worst Circuit Court opinions I’ve read in a long time. It’s definitely way up the list.

The implications are staggering if this ruling stands. We just talked about some cases in the Ninth Circuit that poke some annoying and worrisome holes in Section 230, but this ruling takes a wrecking ball to 230. It basically upends the entire law.

At issue are the recommendations TikTok offers on its “For You Page” (FYP), which is the algorithmically recommended feed that a user sees. According to the plaintiff, the FYP recommended a “Blackout Challenge” video to a ten-year-old child, who mimicked what was shown and died. This is, of course, horrifying. But who is to blame?

We have some caselaw on this kind of thing even outside of the internet context. In Winter v. GP Putnam’s Sons, it was found that the publisher of an encyclopedia of mushrooms was not liable for “mushroom enthusiasts who became severely ill from picking and eating mushrooms after relying on information” in the book. The information turned out to be wrong, but the court held that the publisher could not be held liable for those harms because it had no duty to carefully investigate each entry.

In many ways, Section 230 was designed to speed up this analysis in the internet era, by making it explicit that a website publisher has no liability for harms that come from content posted by others, even if the publisher engaged in traditional publishing functions. Indeed, the point of Section 230 was to encourage platforms to engage in traditional publishing functions.

There is a long list of cases that say that Section 230 should apply here. But the panel on the Third Circuit says it can ignore all of those. There’s a very long footnote (footnote 13) that literally stretches across three pages of the ruling listing out all of the cases that say this is wrong:

We recognize that this holding may be in tension with Green v. America Online (AOL), where we held that § 230 immunized an ICS from any liability for the platform’s failure to prevent certain users from “transmit[ing] harmful online messages” to other users. 318 F.3d 465, 468 (3d Cir. 2003). We reached this conclusion on the grounds that § 230 “bar[red] ‘lawsuits seeking to hold a service provider liable for . . . deciding whether to publish, withdraw, postpone, or alter content.’” Id. at 471 (quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)). Green, however, did not involve an ICS’s content recommendations via an algorithm and pre-dated NetChoice. Similarly, our holding may depart from the pre-NetChoice views of other circuits. See, e.g., Dyroff v. Ultimate Software Grp., 934 F.3d 1093, 1098 (9th Cir. 2019) (“[R]ecommendations and notifications . . . are not content in and of themselves.”); Force v. Facebook, Inc., 934 F.3d 53, 70 (2d Cir. 2019) (“Merely arranging and displaying others’ content to users . . . through [] algorithms—even if the content is not actively sought by those users—is not enough to hold [a defendant platform] responsible as the developer or creator of that content.” (internal quotation marks and citation omitted)); Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 21 (1st Cir. 2016) (concluding that § 230 immunity applied because the structure and operation of the website, notwithstanding that it effectively aided sex traffickers, reflected editorial choices related to traditional publisher functions); Jones v. Dirty World Ent. Recordings LLC, 755 F.3d 398, 407 (6th Cir. 2014) (adopting Zeran by noting that “traditional editorial functions” are immunized by § 230); Klayman v. Zuckerburg, 753 F.3d 1354, 1359 (D.C. Cir. 2014) (immunizing a platform’s “decision whether to print or retract a given piece of content”); Johnson v. Arden, 614 F.3d 785, 791-92 (8th Cir. 2010) (adopting Zeran); Doe v. MySpace, Inc., 528 F.3d 413, 420 (5th Cir. 2008) (rejecting an argument that § 230 immunity was defeated where the allegations went to the platform’s traditional editorial functions).

I may not be a judge (or even a lawyer), but even I might think that if you’re ruling on something and you have to spend a footnote that stretches across three pages listing all the rulings that disagree with you, at some point, you take a step back and ask:

As you might be able to tell from that awful footnote, the Court here seems to think that the ruling in Moody v. NetChoice has basically overturned those rulings and opened up a clean slate. This is… wrong. I mean, there’s no two ways about it. Nothing in Moody says this. But the panel here is somehow convinced that it does?

The reasoning here is absolutely stupid. It’s taking the obviously correct point that the First Amendment protects editorial decision-making, and saying that means that editorial decision-making is “first-party speech.” And then it’s making that argument even dumber. Remember, Section 230 protects an interactive computer service or user from being treated as the publisher (for liability purposes) of third party information. But, according to this very, very, very wrong analysis, algorithmic recommendations are magically “first-party speech” because they’re protected by the First Amendment:

Anderson asserts that TikTok’s algorithm “amalgamat[es] [] third-party videos,” which results in “an expressive product” that “communicates to users . . . that the curated stream of videos will be interesting to them[.]” ECF No. 50 at 5. The Supreme Court’s recent discussion about algorithms, albeit in the First Amendment context, supports this view. In Moody v. NetChoice, LLC, the Court considered whether state laws that “restrict the ability of social media platforms to control whether and how third-party posts are presented to other users” run afoul of the First Amendment. 144 S. Ct. 2383, 2393 (2024). The Court held that a platform’s algorithm that reflects “editorial judgments” about “compiling the third-party speech it wants in the way it wants” is the platform’s own “expressive product” and is therefore protected by the First Amendment….

Given the Supreme Court’s observations that platforms engage in protected first-party speech under the First Amendment when they curate compilations of others’ content via their expressive algorithms, id. at 2409, it follows that doing so amounts to first-party speech under § 230, too….

This is just flat out wrong. It is based on the false belief that any “expressive product” makes it “first-party speech.” That’s wrong on the law and it’s wrong on the precedent.

It’s a bastardization of an already wrong argument put forth by MAGA fools that Section 230 conflicts with the argument in Moody. The argument, as hinted at by Justices Thomas and Gorsuch, is that because NetChoice argues (correctly) that its editorial decision-making is protected by the First Amendment, it’s somehow in conflict with the idea that they have no legal liability for third-party speech.

But that’s only in conflict if you can’t read and/or don’t understand the First Amendment and Section 230 and how they interact. The First Amendment still protects any editorial actions taken by a platform. All Section 230 does is say that it can’t face liability for third party speech, even if it engaged in publishing that speech. The two things are in perfect harmony. Except to these judges in the Third Circuit.

The Supreme Court at no point says that editorial actions turn into first-party speech because they are protected by the First Amendment, contrary to what they say here. That’s never been true, as even the mushroom encyclopedia example shows above.

Indeed, reading Section 230 in this manner wipes out Section 230. It makes it the opposite of what the law was intended to do. Remember, the law was written in response to the ruling in Stratton Oakmont v. Prodigy, where a local judge found Prodigy liable for content it didn’t moderate, because it did moderate some content. As then Reps. Chris Cox and Ron Wyden recognized, that would encourage no moderation at all, which made no sense. So they passed 230 to overturn that decision and make it so that internet services could feel free to engage in all sorts of publishing activity without facing liability for the underlying content when that content was provided by a third party.

But here, the Third Circuit has flipped that on its head and said that the second you engage in First Amendment-protected publishing activity around content (such as recommending it), you lose Section 230 protections because the content becomes first-party content.

That’s… the same thing that the court ruled in Stratton Oakmont, and which 230 overturned. It’s beyond ridiculous for the Court to say that Section 230 basically enshrined Stratton Oakmont, and it’s only now realizing that 28 years after the law passed.

And yet, that seems to be the conclusion of the panel.

Incredibly, Judge Paul Matey (a FedSoc favorite Trump appointee) has a concurrence/dissent where he would go even further in destroying Section 230. He falsely claims that 230 only applies to “hosting” content, not recommending it. This is literally wrong. He also falsely claims that Section 230 is a form of a “common carriage regulation” which it is not.

So he argues that the first Section 230 case, the Fourth Circuit’s important Zeran ruling, was decided incorrectly. The Zeran ruling established that Section 230 protected internet services from all kinds of liability for third-party content. Zeran has been adopted by most other circuits (as noted in that footnote of “all the cases we’re going to ignore” above). So in Judge Matey’s world, he would roll back Section 230 to only protect hosting of content and that’s it.

But that’s not what the authors of the law meant (they’ve told us, repeatedly, that the Zeran ruling was correct).

Either way, every part of this ruling is bad. It basically overturns Section 230 for an awful lot of publisher activity. I would imagine (hope?) that TikTok will request an en banc rehearing across all judges on the circuit and that the entire Third Circuit agrees to do so. At the very least, that would provide a chance for amici to explain how utterly backwards and confused this ruling is.

If not, then you have to think the Supreme Court might take it up, given that (1) they still seem to be itching for direct Section 230 cases and (2) this ruling basically calls out in that one footnote that it’s going to disagree with most other Circuits.

Filed Under: 1st amendment, 1st party speech, 3rd circuit, 3rd party speech, algorithms, fyp, liability, recommendations, section 230
Companies: tiktok

Cox Media Group Brags It Spies On Users With Device Microphones To Sell Targeted Ads, But It’s Not Clear They Actually Can

Privacy

from the watching-you-watching-me dept

For years, the cable industry has dreamed of a future where they could use your cable box to actively track your every behavior using cameras and microphones and then monetize the data. At one point way back in 2009, Comcast made it clear they were even interested in using embedded microphones and cameras to monitor the number of people in living rooms and listen in on conversations.

Last December, internal documents obtained by 404 Media indicated that cable giant Cox Communications claimed to have finally achieved this longstanding vision: it was now able to monitor consumers via microphones embedded in phones, smart TVs, and cable boxes, leverage the audio data, then exploit it to target those users with tailored advertising.

At the time, the Cox Media Group (CMG) website openly bragged about the technology, crowing about how such surveillance was perfectly legal (though, even under our pathetic existing privacy and wiretap laws, it very likely isn’t). Shortly after the 404 Media story appeared, Cox deleted the website in question and issued a statement denying they were doing anything out of the ordinary:

CMG businesses do not listen to any conversations or have access to anything beyond a third-party aggregated, anonymized and fully encrypted data set that can be used for ad placement. We regret any confusion and we are committed to ensuring our marketing is clear and transparent.

Eight months later and 404 Media has obtained another pitch deck being used by Cox, crowing about its ability to listen in on consumers in order to sell them targeted ads under the company’s “Active Listening” program. This pitch deck advertises the company’s partnerships with Google, Amazon, Microsoft. Google says it removed CMG from its Partners Program after an “investigation” prompted by 404 Media.

It’s not clear Cox is truly capable of doing what it claims or if it’s overstating its abilities just to woo ad partners. But the marketing deck is pretty clear:

“The power of voice (and our devices’ microphones),” the slide deck starts. “Smart devices capture real-time intent data by listening to our conversations. Advertisers can pair this voice-data with behavioral data to target in-market consumers. We use AI to collect this data from 470+ sources to improve campaign deployment, targeting and performance.”

If real, it likely includes the myriad “smart” television sets that increasingly have little to no real consumer privacy standards. It may also include everything from smart phones and cable boxes to the myriad other household “smart” devices with embedded mics, from home security hubs to your smart refrigerator.

Cox’s original, since deleted website crowing about its “active listening” tech even went so far as to compare its own technology to a black mirror episode:

What would it mean for your business if you could target potential clients who are actively discussing their need for your services in their day-to-day conversations? No, it’s not a Black Mirror episode—it’s Voice Data, and CMG has the capabilities to use it to your business advantage.

Since the U.S. is too corrupt to pass a meaningful modern internet-era privacy law or regulate data brokers, it remains a sort of wild west when it comes to consumer surveillance and monetization. Companies routinely justify the behavior by insisting the data is “anonymized”; a meaningless, gibberish word used to pretend these kinds of ad surveillance systems are legal, private, and secure.

Because corporate lobbying has increasingly boxed in privacy regulation at the FCC and FTC, the folks supposedly tasked with investing potential privacy abuses lack the staff, resources, and authority to police the problem at the massive scale it’s happening. And that’s before recent Supreme Court rulings further stripped away the independence and authority of U.S. regulators.

The U.S. government, keen to bypass warrants by buying consumer data from data brokers themselves, has repeatedly made it clear that making money is more important than consumer trust and public safety. As a result we have countless companies monitoring your every fart, and non-transparently selling it to any number of noxious individuals who can use it to cause active harm (see: Wyden’s revelations on abortion clinic visitor data).

Filed Under: behavior ads, consumers, microphones, privacy, security, smart tvs, surveillance, tracking
Companies: cox

Superbabies Petitions TTAB For Default Judgement Claiming DC/Marvel Failed To Respond Over ‘Superhero’ Trademark Cancellation

Trademark

from the wait-really? dept

Some stories just don’t end the way you expect, and the way this one supposedly might is fairly surprising. Earlier this year, we discussed how the creator of the Superbabies comic, Scott Richold, filed for cancellation for the trademarked term “Super Hero” and several variants, all jointly owned by DC and Marvel with the USPTO. As that post noted, the fact that the term is still trademarked at this point is absurd all on its own.

But when Richold’s company applied for a trademark on his comic series, the idea that DC and/or Marvel could tell him that his application for what would be a fairly unique trademark would result in trademark infringement is bonkers. “Super Hero” and its variants are plainly generic, to the point of being the term for entire genres of film and fiction in a variety of formats.

When Superbabies Ltd. put together its cancellation request for the Trademark Trial & Appeal Board (TTAB), it submitted the filing with all kinds of uses of the term that had gone unpoliced by either DC or Marvel. In fact, the filing even included several instances of employees of DC and Marvel using the term in a way that demonstrates its generic nature.

Now, I figured there was a couple of ways this would play out. The most likely was that DC and Marvel would throw its enormous legal warchest at Superbabies Ltd. to try, and perhaps succeed, in making this all go away due to the cost of the fight. The second, far less likely outcome would have been DC and Marvel admitting the mark is too generic to be worth fighting over and simply agreeing to rescind those marks.

What I never expected was for DC and Marvel to simply fail to respond to the TTAB. But that’s what Superbabies Ltd. has indicated happened in its petition for default judgment earlier this month.

Petitioner Superbabies Limited (“Petitioner”) respectfully submits this motion for default judgment. In support of its motion, Petitioner states as follows:

1. On May 14, 2024, Petitioner filed its cancellation petition in this matter.
2. Under the Notice of Institution, Respondents (DC Comics and Marvel Characters, Inc.) were required to answer the petition by June 24, 2024. 2 TTABVUE 3.
3. On June 14, 2024, Respondents filed a motion to extend their Time to Answer to July 24, 2024. 4 TTABVUE. The motion was granted. 5 TTABVUE.
4. On June 20, 2024, counsel for Respondents entered a notice of appearance. 6 TTABVUE.
5. As of the Date of this Motion, Respondents have not filed an Answer to the Petition, nor have they requested any additional extensions of time to respond. Respondents have defaulted.

When I saw this and then conferred with our own Cathy Gellis, I had to go to the USPTO site and look up the cancellation case myself. I’m still wondering if there isn’t some sort of mistake here, or miscommunication, or failure to log a document, but the history of documents in this case does not show any response from DC or Marvel after the request for extended time.

If that’s how this story ends, it’s nearly as incredible as any super hero comic that either company has produced. And I would imagine that there are some executives very unhappy with their legal counsel. Though, also, even if there’s a default judgement, Marvel & DC could likely re-engage. But for now, it appears they have not.

And if it frees the obviously generic term “Super Hero” from the restrictions of trademark law, well, perhaps this isn’t the outcome we expected, but it’s the outcome we deserve.

Filed Under: default, super hero, trademark, ttab
Companies: dc, disney, marvel, superbabies