Every relevant court that has looked at this question — including the Supreme Court — has agreed: no one can own the law. When private standards get incorporated into binding legal requirements, the public has a right to access them freely. The Fifth Circuit, the DC Circuit, and the First Circuit have all reached the same conclusion through different cases over the past two decades.
So naturally, a bipartisan group of senators has reintroduced a bill to override all of that.
Senators Coons, Cornyn, Hirono, and Tillis have brought back the Pro Codes Act, a bill that would grant copyright protection to standards that have been incorporated by reference into law. That means building codes, fire safety codes, electrical codes, accessibility guidelines — the kind of stuff that governs whether your house is up to code and violations of which can carry civil or criminal penalties — would remain the copyrighted property of the private standards development organizations (SDOs) that wrote them.
That would be really, really bad — and also, according to multiple federal courts, unconstitutional.
The press release from these senators is really something. Tillis says the bill “protects a commonsense system that keeps Americans safe without costing taxpayers a dime.” Coons worries about “a penalty for the non-profit organizations that developed them and stand to lose their intellectual property.” The Copyright Alliance (a copyright maximalist org funded by the usual suspects in Hollywood) CEO calls it “a clear win for public safety, transparency, and economic growth.”
You’d think we were talking about some beleaguered group of nonprofits on the verge of financial collapse, valiantly producing safety standards out of the goodness of their hearts, about to be crushed by pernicious freeloaders daring to read the laws for free. The reality, as Katherine Klosek and Garrett Reynolds detailed here on Techdirt, is rather different. The main SDOs pushing this bill — the International Code Council and the National Fire Protection Association — are making more money than ever, with CEO salaries upward of $1,000,000, compared to a median nonprofit CEO salary of around $115,682. Their revenues have grown even as organizations like Public.Resource.Org and UpCodes have been providing free, unfettered access to these incorporated standards for years.
As the Fifth Circuit noted way back in 2002:
“It is difficult to imagine an area of creative endeavor in which the copyright incentive is needed less. Trade organizations have powerful reasons stemming from industry standardization, quality control, and self regulation to produce these model codes; it is unlikely that, without copyright, they will cease producing them.”
Twenty-four years later, the prediction holds up perfectly. The SDOs kept producing standards. They kept growing their revenue. They just also want Congress to hand them a monopoly over public law, because the courts wouldn’t.
And the bill is sneaky about it: it includes a provision requiring that incorporated standards be made “publicly accessible online,” which the bill’s supporters point to as proof of their commitment to transparency. But the bill explicitly says this access must be provided “in a manner that does not substantially disrupt the ability of those organizations to earn revenue.” That’s Congress writing profit protection directly into the definition of “public access to the law.” In practice, as Klosek explained last year, this means read-only access where you can’t download, copy, print, or link to the standards. That’s not access to the law. That’s a peek at the law through a keyhole, on terms set by a private corporation.
Meanwhile, the organizations actually providing genuinely useful, free public access to these laws — Public.Resource.Org, UpCodes, and others — would be exposed to copyright liability under this bill. So the Pro Codes Act doesn’t just fail to improve public access to the law. It actively threatens the entities that are already doing a better job of providing that access than the SDOs ever have.
So when the senators pushing this bill talk up the need for “non-profits” to make money, what they’re really doing is choosing which nonprofits deserve to survive — the (already extremely well-resourced) ones that write the standards, rather than ones like Public.Resource.Org that actually make those standards available to the public.
This bill has never received a committee hearing. Not in this Congress. Not in any previous Congress. The last time around, it was brought to the House floor under suspension of the rules — a process reserved for non-controversial legislation — and still couldn’t muster the two-thirds majority needed to pass. A growing coalition of libraries, journalists, civil society organizations, disability rights groups, and the NAACP has lined up against it.
They’ve lined up against this law because it’s bad. It locks up the law behind copyright.
The Supreme Court. Multiple circuit courts. A broad coalition of public interest groups. All saying the same thing: the law belongs to the public. But as long as the SDOs keep spending millions on lobbying, Congress will apparently keep trying to give it away.
A New York business frozen out of its checking account. A Georgia chemotherapy patient denied a credit card refund after a product dispute. A New Jersey service member defrauded out of their savings.
These consumers — along with hundreds of others — reached out to their congressional representatives for help in the past 12 months.
“I have been unable to pay my rent, utilities, personal bills, student loans, or my credit card. I have been unable to buy groceries or put gas in my car,” wrote the New Yorker, who contacted Rep. Nicole Malliotakis’ office.
Records show their representatives — all Republicans — referred them to the Consumer Financial Protection Bureau, the watchdog agency formed in the wake of the Great Recession to shield Americans from unfair or abusive business practices. All three consumers got relief, according to agency data.
Then the lawmakers — along with nearly every other Republican in Congress — voted to slash the agency’s funding by nearly half as part of President Donald Trump’s signature legislative package, the One Big Beautiful Bill Act, a step toward the administration’s goal of gutting the agency.
Republicans have long been critical of the CFPB, accusing it of imposing unreasonable burdens on businesses. Already, the CFPB under Trump has dropped a number of cases and frozen investigations into dozens of companies.
Yet the agency has historically benefited consumers across the political spectrum, securing around $20 billion in relief through its enforcement actions.
Data obtained by ProPublica through a public records request shows that many of the same Republican members of Congress who have targeted the CFPB for cuts have collectively routed thousands of constituent complaints to the agency.
Rep. Darrell Issa of California and Rep. Rob Wittman of Virginia, for example, voted to reduce the CFPB’s budget. Yet each of their offices has referred more than 100 constituents to the CFPB for help, among the most of any House members. The office of Sen. John Cornyn of Texas, who also voted for the CFPB cuts, has routed more than 800 constituent complaints to the agency, the most of any current lawmaker from either party, ProPublica found.
A spokesperson for Issa said in an email that most of his office’s referrals to the agency “occurred several years ago” and reflected “a conventional way” to handle constituents’ consumer issues.
Wittman and Cornyn didn’t respond to questions from ProPublica about the disconnect between their offices’ use of the CFPB’s services and their votes to cut it. Neither did New Jersey Rep. Chris Smith, whose office fielded the defrauded service member’s complaint, or Malliotakis, who was approached by the New York business owner, or Rep. Rick Allen, whose office directed the Georgia chemotherapy patient to the agency.
Overall, members of Congress have steered nearly 24,000 complaints to the CFPB since it opened its doors in 2011. Roughly 10,000 of those were referred by the offices of current and former Republican lawmakers, ProPublica found.
“This is how members of Congress from both parties get help for the people who live in their districts,” said Erie Meyer, the CFPB’s former chief technologist, who left the agency in February. The agency has a particular mandate to help service members and seniors, she noted. “This is how, if a service member is getting screwed on an auto loan, this is the only place they can go.”
Sen. Richard Blumenthal, D-Conn., has referred more than 200 constituents to CFPB since its creation. In a statement to ProPublica, he accused Republicans in Congress of “pursuing senseless cuts that will undermine their own ability to protect their constituents, who will be left in the lurch when they fall victim to scams or deceptive and unfair business practices.”
“Republicans have made clear that they stand on the side of big businesses — not consumers,” he added. “Their irresponsible pursuit of dismantling the CFPB will have far-reaching and long-lasting consequences.”
An Irreplaceable System
In recent years, the CFPB’s public database shows the number of complaints has exploded, from around 280,000 in 2019 to more than 2.7 million last year.
Complaints have grown across many categories, including credit cards and debt collection. Last year, most of the complaints filed, over 2.3 million, were about mistakes or other problems involving credit reporting agencies, and more than half of them resulted in relief, CFPB data shows.
“These credit score formulas govern so many factors of your life. It’s not just your ability to get a loan, it’s your ability to secure housing or qualify for a job,” said Adam Rust, director of financial services at the Consumer Federation of America. “It’s important that you can resolve something, but it’s difficult to do it on your own.”
Once a complaint is submitted, it is routed to the company, which has 15 days to respond. Companies can request an additional 45 days to reach a final resolution.
Many consumers end up getting nonmonetary relief, such as fixes to erroneous credit reports or an end to harassment by debt collectors, but some get financial help as well. More than $300 million has been returned to Americans through the complaint system, including $90 million just last year.
Normally, staff at the CFPB monitor the complaints to identify systemic issues and escalate complaints involving consumers who are at immediate risk of foreclosure, although that didn’t happen for a few weeks this year when the agency’s acting director halted its work.
The CFPB also shares complaint information with other federal agencies, states and localities to help them protect consumers. No other government or private entity has the capacity to effectively handle the volume of complaints that the CFPB does, experts and current and former employees say.
In legal filings opposing the Trump administration’s steps to effectively shut down the CFPB, 23 Democratic attorneys general noted that their states collectively have referred thousands of complaints to the agency and that its services can’t be replaced by state-level operations.
“In the CFPB’s absence, consumers will be left without critical resources,” they wrote.
The complaint system has also lessened the burden on congressional offices, which can route constituent problems to an agency dedicated to, and expert in, addressing consumer issues. Yet that hasn’t stopped Republicans from pursuing dramatic cuts to the agency.
The CFPB receives its funding from the Federal Reserve instead of annual appropriations bills. The structure is meant to safeguard the agency’s independence, though critics say this makes the agency less accountable, giving elected officials less power over its operations.
Initially, Republicans pressed for extreme cuts to the CFPB as part of Trump’s legislative package. House members approved a 70% cut. The Senate Banking Committee attempted to go even further, zeroing out the agency’s funding entirely.
Ultimately, the final version of the bill signed into law by Trump on July 4 cut the CFPB’s budget by around 46%, reducing the agency’s funding cap — the maximum amount it can request from the Federal Reserve — from $823 million to $446 million for this fiscal year. The agency requested $729 million last fiscal year.
The offices of lawmakers who voted for the bill have referred about 3,400 complaints to the agency, running the gamut of consumer problems — from crushing debt to mortgage issues to financial scams, ProPublica’s data analysis shows. (In some of these cases, consumers also took complaints to the CFPB themselves in addition to reaching out to their representatives. Consumers’ names aren’t disclosed in the data.)
Their constituents are sometimes desperate: “I’m about to be homeless because of this,” wrote a Florida resident whose bank account was frozen.
Others have expressed frustration at getting the runaround from a company. “I’ve spent countless hours on hold trying to speak with a representative, only to be met with silence or outdated instructions to send letters,” wrote one Virginian in a complaint about their bank.
In a statement after the CFPB funding cut passed, the chair of the Senate Banking Committee, Tim Scott, R-S.C., applauded the measure for saving taxpayer money but insisted it would not affect the agency’s mandatory functions, which include handling complaints.
Consumer experts as well as current and former CFPB employees, however, said the cuts will likely hinder the agency’s effectiveness.
“I think the whole process is at risk,” said Ruth Susswein, director of consumer protection at the nonprofit advocacy group Consumer Action. “If you starve the system, it cannot provide the benefits that it now offers.”
Signs of Strain
The Trump administration’s initial efforts to unilaterally hobble the CFPB give a hint of what may lie ahead for the complaint system.
In February, acting Director Russell Vought issued a stop-work order to all CFPB employees and canceled a slew of contracts, including for antivirus software that scanned files attached to consumer complaints.
The actions largely froze the complaint system for about a week. More than 70,000 complaints were submitted, but most were not sent to companies for their response during that period, data shows.
Although some issues were later fixed, the work stoppage spawned a backlog of more than 16,000 complaints that required manual review, according to court records from a lawsuit filed by the union that represents CFPB employees. About 75 complaints from consumers at risk of imminent foreclosure, which would normally be escalated to CFPB staff, weren’t acted upon.
In late March, U.S. District Judge Amy Berman Jackson ordered the CFPB to end the work stoppage, reverse contract terminations and reinstate probationary employees who were fired. However, an appeals court allowed layoffs to proceed, triggering a frenzied effort by the administration to cut about 90% of the CFPB’s staff.
The layoffs included the vast majority of the roughly 130-member team that manages the complaint system as well as nearly every staffer in legally mandated offices focused on service members and seniors.
The CFPB has fielded over 440,000 complaints from current and former service members and their families since 2011, according to CFPB data, more than 100,000 of which have resulted in relief.
The CFPB did not respond to multiple requests for comment. In a court declaration, Mark Paoletta, the CFPB’s chief legal officer, said that the agency’s leadership had “been assessing how the agency can fulfill its statutory duties as a smaller, more efficient operation. In making this assessment, leadership discovered vast waste in the agency’s size.”
Paoletta also said the agency would have a “much more limited vision for enforcement and supervision activities, focused on protecting service members and veterans, and addressing actual tangible consumer harm and intentional discrimination.”
In April, Jackson issued an order blocking the firings made at the CFPB after the appeals court decision. The administration has appealed Jackson’s ruling.
Lawsuits won’t protect the CFPB or its complaint apparatus from the cuts included in the recently passed spending bill, current and former agency employees pointed out.
These changes are likely to hit home with consumers no matter which party they favor, said Lauren Saunders, associate director of the National Consumer Law Center, which is a plaintiff in the union’s lawsuit.
“Republicans don’t want to be abused by big corporations that ignore them any more than Democrats do,” she said.
Senator Ron Wyden is a one-man defense for preventing horrible bills from moving forward in the Senate. Last month, he stopped Josh Hawley from moving a very problematic STOP CSAM bill from moving forward, and now he’s had to do it again.
A (bipartisan) group of senators traipsed to the Senate floor Wednesday evening. They tried to skip the line and quickly move some bad bills forward by asking for unanimous consent. Unless someone’s there to object, it effectively moves the bill forward, ending committee debate about it. Traditionally, this process is used for moving non-controversial bills, but lately it’s been used to grandstand about stupid bills.
Senator Lindsey Graham announced his intention to pull this kind of stunt on bills that he pretends are about “protecting the children” but which do no such thing in reality. Instead of it being just him, he rounded up a bunch of senators and they all pulled out the usual moral panic lines about two terrible bills: EARN IT and STOP CSAM. Both bills are designed to make it sound like good ideas and about protecting children, but the devil is very much in the detail, as both bills undermine end-to-end encryption while assuming that if you just put liability on websites, they’ll magically make child predators disappear.
And while both bills pretend not to attack encryption — and include some language about how they’re not intended to do so — both of them leave open the possibility that the use of end-to-end encryption will be used as evidence against websites for bad things done on those websites.
But, of course, as is the standard for the group of grandstanding senators, they present these bills as (1) perfect and (2) necessary to “protect the children.” The problem is that the bills are actually (1) ridiculously problematic and (2) will actually help bad people online in making end-to-end encryption a liability.
The bit of political theater kicked off with Graham having Senators Grassley, Cornyn, Durbin, Klobuchar, and Hawley talk on and on about the poor kids online. Notably, none of them really talked about how their bills worked (because that would reveal how the bills don’t really do what they pretend they do). Durbin whined about Section 230, misleadingly and mistakenly blaming it for the fact that bad people exist. Hawley did the thing that he loves doing, in which he does his mock “I’m a big bad Senator taking on those evil tech companies” schtick, while flat out lying about reality.
But Graham closed it out with the most misleading bit of all:
In 2024, here’s the state of play: the largest companies in America — social media outlets that make hundreds of billions of dollars a year — you can’t sue if they do damage to your family by using their product because of Section 230
This is a lie. It’s a flat out lie and Senator Graham and his staffers know this. All Section 230 says is that if there is content on these sites that violate the law, the liability goes after whoever created the content. If the features of the site itself “do damage,” then you can absolutely sue the company. But no one is actually complaining about the features. They’re complaining about content. And the liability on the content has to go to who created it.
The problem here is that Graham and all the other senators want to hold companies liable for the speech of users. And that is a very, very bad idea.
Now these platforms enrich our lives, but they destroy our lives.
These platforms are being used to bully children to death.
They’re being used to take sexual images and voluntarily and voluntarily obtain and sending them to the entire world. And there’s not a damn thing you can do about it. We had a lady come before the committee, a mother saying that her daughter was on a social media site that had an anti-bullying provisions. They complained three times about what was happening to her daughter. She killed herself. They went to court. They got kicked out by section 230.
I don’t know the details of this particular case, but first off, the platforms didn’t bully anyone. Other people did. Put the blame on the people actually causing the harm. Separately, and importantly, you can’t blame someone’s suicide on someone else when no one knows the real reasons. Otherwise, you actually encourage increased suicides, as it gives people an ultimate way to “get back” at someone.
Senator Wyden got up and, as he did last month, made it quite clear that we need to stop child sexual abuse and predators. He talked about his bill, which would actually help on these issues by giving law enforcement the resources it needs to go after the criminals, rather than the idea of the bills being pushed that simply blame social media companies for not magically making bad people disappear.
We’re talking about criminal issues, and Senator Wyden is looking to handle it by empowering law enforcement to deal with the criminals. Senators Graham, Durbin, Grassley, Cornyn, Klobuchar, and Hawley are looking to sue tech companies for not magically stopping criminals. One of those approaches makes sense for dealing with criminal activity. And yet it’s the other one that a bunch of senators have lined up behind.
And, of course, beyond the dangerous approach of EARN IT, it inherently undermines encryption, which makes kids (and everyone) less safe, as Wyden also pointed out.
Now, the specific reason I oppose EARN It is it will weaken the single strongest technology that protects children and families online. Something known as strong encryption.
It’s going to make it easier to punish sites that use encryption to secure private conversations and personal devices. This bill is designed to pressure communications and technology companies to scan users messages.
I, for one, don’t find that a particularly comforting idea.
Now, the sponsors of the bill have argued — and Senator Graham’s right, we’ve been talking about this a while — that their bills don’t harm encryption. And yet the bills allow courts to punish companies that offer strong encryption.
In fact, while it includes some they language about protecting encryption, it explicitly allows encryption to be used as evidence for various forms of liability. Prosecutors are going to be quick to argue that deploying encryption was evidence of a company’s negligence preventing the distribution of CSAM, for example.
The bill is also designed to encourage scanning of content on users phones or computers before information is sent over the Internet which has the same consequences as breaking encryption. That’s why a hundred civil society groups including the American Library Association — people then I think all of us have worked for — Human Rights Campaign, the list goes… Restore the Fourth. All of them oppose this bill because of its impact on essential security.
Weakening encryption is the single biggest gift you can give to these predators and these god-awful people who want to stalk and spy on kids. Sexual predators are gonna have a far easier time stealing photographs of kids, tracking their phones, and spying on their private messages once encryption is breached. It is very ironic that a bill that’s supposed to make kids safer would have the effect of threatening the privacy and security of all law-abiding Americans.
My alternative — and I want to be clear about this because I think Senator Graham has been sincere about saying that this is a horrible problem involving kids. We have a disagreement on the remedy. That’s what is at issue.
And what I want us to do is to focus our energy on giving law enforcement officials the tools they need to find and prosecute these monstrous criminals responsible for exploiting kids and spreading vile abuse materials online.
That can help prevent kids from becoming victims in the first place. So I have introduced to do this: the Invest in Child Safety Act to direct five billion dollars to do three specific things to deal with this very urgent problem.
Graham then gets up to respond and lies through his teeth:
There’s nothing in this bill about encryption. We say that this is not an encryption bill. The bill as written explicitly prohibits courts from treating encryption as an independent basis for liability.
We’re agnostic about that.
That’s not true. As Wyden said, the bill has some hand-wavey language about not treating encryption as an independent basis for liability, but it does explicitly allow for encryption to be one of the factors that can be used to show negligence by a platform, as long as you combine it with other factors.
Section (7)(A) is the hand-wavey bit saying you can’t use encryption as “an independent basis” to determine liability, but (7)(B) effectively wipes that out by saying nothing in that section about encryption “shall be construed to prohibit a court from considering evidence of actions or circumstances described in that subparagraph.” In other words, you just have to add a bit more, and then can say “and also, look, they use encryption!”
And another author of the bill, Senator Blumenthal, has flat out said that EARN IT is deliberately written to target encryption. He falsely claims that companies would “use encryption… as a ‘get out of jail free’ card.” So, Graham is lying when he says encryption isn’t a target of the bill. One of his co-authors on the bill admits otherwise.
Graham went on:
What we’re trying to do is hold these companies accountable by making sure they engage in best business practices. The EARN IT acts simply says for you to have liability protections, you have to prove that you’ve tried to protect children. You have to earn it. You’re just not given to you. You have to have the best business practices in place that voluntary commissions that lay out what would be the best way to harden these sites against sexually exploitation. If you do those things you get liability, it’s just not given to you forever. So this is not about encryption.
As to your idea. I’d love to talk to you about it. Let’s vote on both, but the bottom line here is there’s always a reason not to do anything that holds these people liable. That’s the bottom line. They’ll never agree to any bill that allows you to get them in court ever. If you’re waiting on these companies to give this body permission for the average person to sue you. It ain’t never going to happen.
So… all of that is wrong. First of all, the very original version of the EARN IT Act did have provisions to make company’s “earn” 230 protections by following best practices, but that’s been out of the bill for ages. The current version has no such thing.
The bill does set up a commission to create best practices, but (unlike the earlier versions of the bill) those best practice recommendations have no legal force or requirements. And there’s nothing in the bill that says if you follow them you get 230 protections, and if you don’t, you don’t.
Does Senator Graham even know which version of the bill he’s talking about?
Instead, the bill outright modifies Section 230 (before the Commission even researches best practices) and says that people can sue tech companies for the distribution of CSAM. This includes using the offering of encryption as evidence to support the claims that CSAM distribution was done because of “reckless” behavior by a platform.
Either Senator Graham doesn’t know what bill he’s talking about (even though it’s his own bill) or he doesn’t remember that he changed the bill to do something different than it used to try to do.
It’s ridiculous that Senator Wyden remains the only senator who sees this issue clearly and is willing to stand up and say so. He’s the only one who seems willing to block the bad bills while at the same time offering a bill that actually targets the criminals.
We’ve noted a few times now how the 2021 infrastructure bill includes more than $42.5 billion to shore up broadband access. And while a huge chunk of that money will absolutely be going to giant telecom monopolies with a long history of subsidy fraud, a lot of the funding is genuinely going to help fund a parade of broadband expansion projects that simply wouldn’t have been possibly previously.
It’s a very “have your cake and eat it too” situation where Republicans get to obstruct progress while simultaneously taking credit for improvements they opposed. After all, who’s going to correct their constituents’ perception in an ocean of partisan propaganda?
Last week, Ted Cruz came out swinging against the underlying broadband subsidy program (the Broadband Equity And Deployment (BEAD) program run by the NTIA) made possible by the infrastructure bill. One of his primary claims is that money is being “wasted” by “overbuilding” broadband into areas already served by giant incumbent monopolies like AT&T and Comcast:
“The report basically lays out the Republican view of broadband subsidies in recommending “fixes” for BEAD. Those include that the money should not be used to overbuild where there is already service and should not be biased in favor of fiber.”
But in telecom corruption land, “overbuilding” has generally been code for bringing competition to bear against industry giants. And even then, the BEAD program goes well out of its way to ensure that lion’s share of money will first be going to parts of the country that lack broadband access. This aversion to “overbuilding” is just an aversion to competition, dressed up to sound like adult policymaking.
The NTIA has also tried to prioritize the subsidization of fiber deployments because fiber is inherently more reliable and future proof than technologies like wireless. AT&T and a handful of fixed wireless companies didn’t like that.
The result is a “report” by Cruz that makes up various claims and data points I’d bet a toe was ghost written by industry. Its function is to basically shame government for spending any money on “duplicative or wasteful” competition to monopoly power. Its synopsis does a great job pretending that Republicans like Cruz actually care about telecom subsidy fraud:
“Forty-two billion dollars is more than enough money to deliver broadband to every American. Will it succeed in doing so? In light of these findings, count me skeptical. This report should serve as a call to action for the Biden administration and the states to ensure BEAD dollars are not funneled to duplicative and wasteful purposes, and instead are used to solve the nation’s connectivity challenges once and for all.”
(For what it’s worth, $42 billion isn’t close to enough to shore up U.S. broadband gaps, even under a scenario where the subsidy program was flawless).
If there’s a real problem with BEAD and other federal subsidy programs, it’s that giants like AT&T and Comcast — with long histories of taking taxpayer money for projects they half-complete — will almost certainly nab a disproportionate amount of funding using unreliable maps whose improvement they’ve long opposed. But Cruz doesn’t mention — or care about — that.
Cruz is silent when a Texas-based company like AT&T gets a $42 billion tax break for doing absolutely nothing. He’ll routinely have nothing to say if AT&T is accused of ripping off taxpayers and the nation’s school system. If you’re a modern Republican, taxpayer money set aside for broadband deployment subsidies is only deemed “wasted” if it goes to anybody other than the dominant local telecom monopoly that funds their re-election campaign.
Throwing taxpayer money at the regional telecom monopolies directly responsible for high prices, spotty access, and slow speeds doesn’t fix the real problem of monopoly power and muted competition. Throwing some of that money at things like city-owned utilities, cooperatives, and municipalities building open access, next-generation fiber does challenge those monopolies, which is why guys like Cruz oppose it.
Cruz and the modern GOP support banning your town or city from building better, faster, more affordable fiber networks, even in instances where there are no other options available. The GOP even proposed a nationwide ban on community broadband during the middle of a pandemic that brutally showcased the need for reliable and affordable home internet.
Again, both Texas Senators Cruz and John Cornyn like to take credit for projects only made possible by an infrastructure bill they voted against. Coryn took plenty of heat back in June when he tried to take credit for the $3.3 billion in federal funds being funneled into the Lone Star State (the most of any state) to expand broadband access. Despite voting against it.
Cruz, himself a sort of mindless and terrible work of performance art at this point, wants to simultaneously get credit for the infrastructure bill he voted against, while also putting on a little stage play about being concerned about government waste. But he only really considers taxpayer money wasted if it goes to competitors to Texas companies like AT&T. Sound and fury, signifying nothing.
Republicans are historically terrible on telecom policy, because their primary “policy” always involves mindlessly kissing the ass of companies like AT&T, Verizon, and Comcast. Occasionally they’ll try to pretend their policies go deeper than that, and it’s routinely adorable.
Not this again… a few years ago we wrote a post about Senator Joe Manchin’s very, very, very bad “See Something Say Something” Act. The bill would remove Section 230 for companies that don’t file a shit ton of nonsense busywork filings for anything they see online that might be bad having to do with illegal drug sales. Basically, if a company becomes aware of anything suspicious it would need to file a “suspicious transmission activity report” (STAR).
But it’s a new year and a new session, and Manchin (joined by Senator John Cornyn)} are back to reintroduce the bill. Again, it’s being framed in such a weird way:
“Last year alone, the Drug Enforcement Administration seized enough fentanyl to kill every American, much of it ordered over the Internet and sent by mail from China. The Internet has drastically changed since Section 230 was written in 1996, nearly 30 years ago, and while it keeps us all more connected than ever before, it also makes it easier to conduct illegal activity online,” said Senator Manchin. “We must amend Section 230 to better reflect the way the Internet impacts our lives today – both good and bad. Senator Cornyn and I reintroduced our bipartisan legislation that uses a commonsense approach to create a clear mechanism for reporting criminal activity online, requiring companies to take reasonable steps to report unlawful activity or be held liable for that failure. It is past time we held these sites accountable.”
What the actual fuck does the DEA’s seizures of fentanyl have to do with Section 230? These are wholly unrelated issues. Also, given that the DEA loves to make up crazy conspiracy theories about fentanyl, I’m going to have to ask for some actual evidence to the line that it was enough to kill every American.
First of all, Section 230 already has an exemption for federal criminal activities, what do drug sales have to do with Section 230? Second, “see something, say something” has always been a dumb, failed concept, because it leads to mass reporting of utter nonsense, overwhelming those looking for actual problems. You end up flooding law enforcement with garbage reports. Third, the most astute thing for a website facing this nonsense requirement to file a report for anything suspicious to do is to stop looking altogether. The more you look, the more you’ll have to report. So, congrats Senator Manchin, your bill would make it so social media companies do less to stop illegal drug sales.
Indeed, Section 230 is a big part of what lets social media companies continue to adapt and change to try to stop the sale of illegal drugs on their platform, without fearing liability for making a mistake. Manchin’s bill would wipe that way, giving them less freedom to actually help.
Also, admittedly this is not my area of expertise, but I would expect that even if drug dealers are using social media today, such activity would likely move to encrypted communications like WhatsApp, Telegram, and Signal rather than traditional social media, meaning that the companies wouldn’t be able to monitor it anyway.
This whole thing, yet again, stinks of politicians and moral panics, and the desire to blame social media for larger societal issues that neither Manchin nor Cornyn actually want to do the heavy lifting to deal with. The opioid epidemic, which Manchin has talked about for years, isn’t going to be solved by making social media company fling piles and piles of useless time-wasting paperwork at law enforcement. It needs real solutions. Solutions Manchin refuses to consider.
Another day, another truly terrible bill to “reform” Section 230. This is another “bipartisan” bill, which should be a reminder that bad Section 230 ideas are happening across the entire spectrum of political ideologies in Congress. It’s being released by Senator Joe Manchin along with Senator John Cornyn, and it’s obnoxiously called the See Something Say Something Online Act. I do wonder if they licensed that term, because it was the NYC Metropolitan Transit Association who holds the trademark for “see something, say something” and is notoriously litigious about it. Indeed, the DHS program under the same name “licensed” the name from the MTA, though I still fail to see how either has anything to do with “commerce.”
As a side note, before we get into why this bill is so, so bad, let’s just note that the whole “See Something, Say Something” concept has been thoroughly and comprehensively debunked as a reasonable approach to law enforcement or stopping crime. Indeed, all “See Something, Say Something” has been shown to accomplish so far is to stuff massive databases full of useless information of people spying on each other.
Now, to this actual bill. It’s worse than ridiculous. It’s yet another one of these bills that seems to think that it can blame any and all societal ills on Section 230. In this case, it’s trying to blame the internet and Section 230 for any kind of criminal behavior with a focus on illegal opioid sales. I know that this is an issue that Manchin has been vocal about for years (and for good reason, West Virginia appears to regularly have the highest overdose rates of any state in the country). But blaming the internet, or Section 230, for that is ridiculous and will not help stop the problem.
And yet, Manchin seems to think he can magically deal with the opioid problem by creating a massive regulatory burden for the internet in a very dangerous manner. The basics are that it would require any website that “detects a suspicious transmission” to submit a “suspicious transmission activity report” or “STAR.” What is a “suspicious transmission” you ask?
The term “suspicious transmission” means any public or private post, message, comment, tag, transaction, or any other user-generated content or transmission that commits, facilitates, incites, promotes, or otherwise assists the commission of a major crime.
So… that’s preposterously broad. If some comment spammer shows up in the Techdirt comments and posts some nonsense “promoting” drugs, I would have to file an official report with the DOJ? This would be an incredible burden for nearly any website.
And how would it be judged if that suspicious activity was “known” by the platform? Again, we get a very, very, very broad definition:
The term “known suspicious transmission” is any suspicious transmission that an interactive computer service should have reasonably known to have occurred or have been notified of by a director, officer, employ, agent, interactive computer service user, or State or Federal law enforcement agency.
So… if they claim that a website should have known, that’s enough that the website has to file one of these crazy reports. Or if basically anyone merely claims something on a website is loosely related to a crime, the website is then required to file one of these STAR reports. Do the staffers who wrote this bill have no clue how many false reports are made every damn day?
And it’s not just the websites. The bill would open up this STAR process directly to anyone. This is where it takes the problematic “See Something, Say Something” concept to ridiculous new heights:
The agency designated or established under [this law] shall establish a centralized online resource, which may be used by individual members of the public to report suspicious activity related to major crimes for investigation by the appropriate law enforcement or regulatory agency.
In other words, the government would set up a snitch database that will undoubtedly be filled with useless junk or people claiming that they saw some “illegal” garbage online that is unlikely to actually be illegal. Just the fact that this encourages people to snitch on others to the DOJ seems problematic enough.
The bill also appears to have a built in gag order, preventing any website from disclosing information about the STARs they’ve filed with the government. That’s a huge blow to transparency. In fact, the bill also says that all of these reports are exempt from any FOIA request.
Of course, all of that is the “new” stuff. The change to 230 is that it would be amended to say that if any website fails to submit he required STARs, then they lose Section 230 protections and may be held liable for the underlying “suspicious transmission.”
There are many, many, many problems with this whole bill. It would be massively burdensome to every website that hosts any form of user generated content. I don’t think we (or any blog, honestly) could reasonably continue to host comments with this law on the books. We’d have to police all of our comments closely, and with the structure of the bill giving no leeway, we’d be compelled to file these snitch reports to the DOJ on any possibly “suspicious” comments, with suspicious being defined so broadly that merely talking about some sort of crime would necessitate us filing. That’s an impossible standard.
Of course, this wouldn’t do anything useful. It wouldn’t help law enforcement discover crime rings online, because this STAR database would certainly be overwhelmed with garbage, just like every other “See Something, Say Something” database. Also, the fact that it requires websites to report on private information means it will require websites to snoop on private messages, and turn them over to law enforcement. That raises some fairly significant 4th Amendment concerns, by turning private companies into arms of law enforcement.
So, it wouldn’t fix anything, would create a massive snoop database for law enforcement, would encourage people to snitch on anything “suspicious” and to force websites to file these useless reports — while also likely shutting down many user forums online (especially those centered around helping those with drug addiction problems). In other words, it’s yet another garbage Section 230 reform bill.
Two congressional sources confirmed a May meeting, where Sen. John Cornyn, (R-Tex.), a vocal supporter of the intelligence community, got a private audience with the NSA Director Adm. Michael Rogers.
Cornyn also got a private tour of the signals intelligence facility at Fort Meade, Maryland at the same time as the May meeting.
Officials “familiar with the situation” (possibly read “jealous as hell”) expressed concern about Cornyn’s personal NSA tour. And for good reason. If Rogers and other NSA officials were feeding Cornyn information the rest of the NSA’s Congressional oversight isn’t privy to, that’s a problem. It’s more of a problem as the date for Section 702’s reauthorization approaches. And it seems even more problematic that Cornyn was given a personal walk-and-talk while oversight members were failing to get substantive answers from the DNI during a Senate hearing.
There’s a long history of the IC playing favorites with oversight members (and vice versa) and a long history of those favorites withholding information from other members of Congress. This visit/personal chat may have been innocuous but given its context — the Section 702 renewal — it looks shady as hell.
The additional context is the DNI’s office believes all is forgiven — or at least, no longer relevant. Reversing Clapper’s promise to hand in something on incidentally-collected US persons’ communications, the new Director is saying that’s just not going to happen.
The Foreign Policy article notes that it’s common for incoming reps and senators to be given a tour and that oversight members routinely visit the NSA as part of their oversight duties, but this Cornyn-only event definitely appears to be the agency making a play for unbridled support from a powerful Senator.
Not wanting to be outdone by idiots in Congress, two idiot senators from the great state of Texas* are pushing their own “Blue Lives Matter” legislation. Senators Cruz and Cornyn have (re)introduced the Backed and Blown “Back the Blue Act,” which adds mandatory minimums to any act of violence against most government officials. Oh, and for extra fun, automatic death penalty considerations for anyone charged under this act.
*Federal law requires the descriptor “great state of” to be appended to any state name, but especially Texas.
I’ll get out of the way and allow Senator Cornyn to toot his own horn:
“Our law enforcement officers put their lives on the line every day to protect and serve families across Texas. Violent criminals who deliberately target those who protect and serve our communities should face swift and tough penalties and the Back the Blue Act sends that clear message. Every day, and particularly during National Police Week, we must give the men and women in blue our unparalleled support,” Sen. Cornyn said.
You hear that, you bunch of ungrateful Americans? No matter how many citizens are gunned down for holding game controllers or toddlers torched by carelessly-tossed flashbang grenades, these fine men and women are to be given “unparalleled support.” They apparently “deserve” it — a term that must be wholly divorced from the process of earning it.
Cruz and Cornyn’s 2016 attempt died from a lack of attention, perhaps overshadowed by the DOJ’s endless stream of scathing reports on police misconduct. With a new “tough on crime” DOJ boss at the helm and the DOJ’s civil rights division neutered, the political climate seems a tad more receptive to glorifying government employees as lowercase-g gods. (But gods nonetheless.)
Several legislators have joined the two senators in stumping for underprotected government employees. Rep. Ted Poe (also of Texas) has plenty to say about the bill at his personal blog. He’s all for it, naturally, but more importantly, he summarizes the harsh new penalties awaiting anyone who threatens, injures, kills, or conspires to do any of the above to a law enforcement officer.
Creates a new federal crime for killing, attempting to kill, or conspiring to kill a federal judge, federal law enforcement officer, or federally funded public safety officer. The offender would be subject to the death penalty and a mandatory minimum sentence of 30 years if death results; the offender would otherwise face a minimum sentence of 10 years.
Creates a new federal crime for assaulting a federally funded law enforcement officer with escalating penalties, including mandatory minimums, based on the extent of any injury and the use of a dangerous weapon. However, no prosecution can be commenced absent certification by the Attorney General that prosecution is appropriate.
Creates a new federal crime for interstate flight from justice to avoid prosecution for killing, attempting to kill, or conspiring to kill a federal judge, federal law enforcement officer, or federally funded public safety officer. The offender would be subject to a mandatory minimum sentence of 10 years for this offense.
Take a good look at the middle stipulation. This means pretty much every law enforcement officer in the nation will be covered by this law, instantly subjecting people who do nothing more than assault an officer (aka, resisting arrest, contempt of cop, etc.) to federal punishments. Almost every law enforcement agency in the nation receives some sort of federal funding. This bill would yank prosecutions out of locals’ hands and, presumably, separate defendants from less-harsh local laws.
The bill also allows law enforcement officers (including those whose agencies are the recipients of federal funding) to carry weapons into places citizens can’t. Nothing like adding an extra right to a long list of extra punishments.
This chaser would put two “Blue Lives Matter” bills in play, giving Congress multiple ways to make policing worse. Considering the Go Team Blue attitude on display at the White House, these bills have a home team advantage and a president dying to sign a few more citizens’ rights and liberties away on behalf of law enforcement.
Sens. Ron Wyden (D-Ore.), Steve Daines (R-Mont.) and Chris Coons (D-Del) took to the floor and unsuccessfully asked for unanimous consent to either pass or formally vote on three bills to delay or prevent updates to the process used by law enforcement to get a warrant to hack suspects’ computers.
“We simply can’t give unlimited power for unlimited hacking,” Daines argued.
[…]
But the bid to prevent the imminent changes to Rule 41 ended quickly. After Wyden spoke, Majority Whip John Cornyn (R-Texas) immediately objected to all three bills, without waiting to hear from Coons and Daines.
But Cornyn alone can’t be blamed for this outcome. A vast majority of senators did nothing to prevent the proposed changes from becoming law — even though the decision has been in their hands since the Supreme Court’s approval in April.
The FBI and others will be able to take advantage of the removal of jurisdictional limits to search computers anywhere in the world using a single warrant issued by a magistrate judge. It will also be granted the same power for use in the disruption of botnets — in essence, searches/seizures of devices owned by US citizens suspected of no wrongdoing.
Cornyn, who prevented any debate over the “updates” to Rule 41, seems closely aligned with the DOJ’s views — that these changes will have “little effect” on civil liberties because the FBI, etc. “will still have to get a warrant.”
Sure, warrants are still involved, but the scope of what can be accessed with a single warrant has been expanded greatly. And the DOJ has yet to explain how it’s going to prevent law enforcement agencies from shopping around for the most compliant magistrates, now that they’re not required to perform searches in the issuing court’s jurisdiction. The DOJ also hasn’t adequately explained what sort of notification process it will use when performing its botnet cleanups.
In an effort to address concerns, U.S. Assistant Attorney General Leslie Caldwell wrote a blog post this week arguing that the benefits given to authorities from the rule changes outweighed any potential for “unintended harm.”
The DOJ wanted fewer restrictions, more power, and the opportunity to treat any appearance of anonymization software as an excuse to deploy these newly-granted powers. The Senate — for the most part — gave it everything it wanted by doing nothing at all to stop it.
We’ve discussed the “cybersecurity” bill, CISA, that’s been making its way through Congress a few times, noting that it is nothing more than a surveillance expansion bill hidden in “cybersecurity” clothing. As recent revelations concerning NSA’s surveillance authorities have made quite clear, CISA would really serve to massively expand the ability of the NSA (and other intelligence agencies) to do “backdoor searches” on its “upstream” collection. In short, rather than protecting any sort of security threat, this bill would actually serve to give the NSA more details on the kind of “cyber signatures” it wants to sniff through pretty much all internet traffic (that it taps into at the backbone) to collect anything it deems suspicious. It then keeps the results of this, considering it “incidental” collections of information.
In an incredibly cynical move, supporters of the surveillance state have seen OPM hacks as a ridiculous excuse to push to pass this bill. Senator Mitch McConnell tried to include it in the defense appropriations bill by pointing to the OPM hack. That gambit, thankfully, failed.
But that’s not stopping the supporters of the surveillance state. During recent Congressional hearings, surveillance state supporter Senator John Cornyn claimed that CISA would be back for a vote before the end of the month, despite having failed multiple times in previous attempts. And, earlier this week, McConnell similarly announced plans to bring it up for a vote soon — and, again in the context of the OPM hack. Here’s McConnell being interviewed on Fox News by Bret Baier:
BAIER: Senator, you mentioned cybersecurity. Hackers broke into the U.S. Office of Personnel Management, stealing background investigation forms, fingerprint records, Social Security numbers for more than 22 million people….
[….]
MCCONNELL: This is a total mess. It’s no wonder they had a hard time with the Web site which they launched Obamacare. These cybersecurity issues are enormously significant. What we’re going to do is before August, take a step in the direction of dealing with the problem with information sharing bill that I think will be broadly supported. This is an administrative disaster that the president needs to get a hold of and get straightened out soon.
What no one asks McConnell (of course) is how CISA would have had any impact on the OPM hack. Or, hell, how it would help stop a single online attack anywhere. Because that’s a question no one seems willing to answer. Because the answer was already made abundantly clear by Senator Ron Wyden in opposing this bill. It’s not about cybersecurity at all. It’s about surveillance.
