Rubio’s Bill To Ban TikTok Is A Dumb Performance That Ignores The Real Problem

Policy

from the I-don't-believe-you're-being-sincere dept

For several years we’ve noted how most of the calls to ban TikTok are bad faith bullshit made by a rotating crop of characters that not only couldn’t care less about consumer privacy, but are directly responsible for the privacy oversight vacuum TikTok (and everybody else) exploits.

Right on cue, Texas Senator Marco Rubio and Wisconsin Representative Mike Gallagher have introduced the verbosely named Averting the National Threat of Internet Surveillance, Oppressive Censorship and Influence, and Algorithmic Learning by the Chinese Communist Party Act (ANTI-SOCIAL CCP Act).

The Act (pdf), according to the two lawmakers, vaguely attempts to “block and prohibit all transactions from any social media company in, or under the influence of, China, Russia, and several other foreign countries of concern.” It comes on the heels of numerous state bills attempting to ban state government employees from using TikTok on their personal devices.

Rubio’s new federal bill attempts to leverage the authority of the International Emergency Economic Powers Act (IEEA) to ban TikTok from operating domestically here in the States, despite the fact that judges have ruled several times now that the IEAA doesn’t include such authority. Violating the act would result in criminal penalties of up to a $1 million fine and 20 years in prison. 

Rubio trots out the now familiar argument that we simply must ban the hugely popular social media app because the Chinese could use it to propagandize children or spy on Americans:

“The federal government has yet to take a single meaningful action to protect American users from the threat of TikTok. This isn’t about creative videos — this is about an app that is collecting data on tens of millions of American children and adults every day. We know it’s used to manipulate feeds and influence elections. We know it answers to the People’s Republic of China. There is no more time to waste on meaningless negotiations with a CCP-puppet company. It is time to ban Beijing-controlled TikTok for good.”

So there are always two underlying claims when it comes to justifying a ban on TikTok. One, that the Chinese could use the app to propagandize children, of which there’s been zero meaningful evidence of at any coordinated scale. The other, more valid but overstated concern, is that TikTok-owner ByteDance will simply funnel U.S. consumer data to the Chinese government for ambiguous surveillance purposes.

Here’s the thing though: for decades the GOP (and more than a few Democrats) have worked tirelessly to erode FTC privacy enforcement authority and funding, while fighting tooth and nail against absolutely any meaningful privacy legislation for the Internet era. That opened the door for countless app makers, data brokers, telecoms, and bad actors from all over the world (including TikTok) to repeatedly abuse this accountability and oversight free for all.

For years, all you had to do to dodge any scrutiny was claim that the data you’re collecting is “anonymized,” a gibberish term with absolutely no meaning. Most anonymized users can be easily identified with just a smattering of additional datasets, allowing companies all around the globe to build detailed profiles of nearly every aspect of consumer behavior, from shopping and browsing habits to real-world movement and behavior patterns. Not even your health or mental health data is safe, really.

Bluntly, it’s because we spent two decades prioritizing making money over consumer safety or market health. The check is long overdue, and you see the impact every time you turn around in the form of another hack, breach, or privacy scandal.

Of course, this free for all was abused by foreign governments. It was never a question that corruption and a lack of market oversight would be exploited by foreign governments. If you actually care about national security, holding all companies and data brokers accountable for privacy abuses should be your priority. A basic, helpful, well-written privacy law should be your priority. A working, staffed, properly funded FTC should be your priority.

The GOP (and several Democrats) aren’t doing that because U.S. companies might lose some money. Instead, they’re pretending that banning a single app somehow fixes the entirety of a much bigger problem. A problem they genuinely helped create by opposing pretty much any meaningful oversight for any data-hoovering operation, provided they pinky swore they weren’t doing anything dodgy with it.

As we’ve noted several times now, you could ban TikTok immediately and the Chinese government could simply buy this (and more) data from a rotating crop of dodgy data brokers and assorted middlemen. As such, banning TikTok doesn’t actually fix any of the problems here, no matter how many times FCC Commissioner Brendan Carr claims otherwise on the TV.

You can also ban TikTok if you genuinely think it helps, but if you’re not doing the other stuff, you’re not actually doing anything. Another TikTok will simply spring up in its place because you haven’t done anything about the underlying conditions that opened the door to U.S. consumer data abuse by foreign governments. In any way. You’ve just put on a dumb play.

If you’re genuinely concerned about national security and privacy, you’d take the time to actually study the bigger problem. Vaguely pretending you’re standing up to the dastardly Chinese helps agitate and excite an often xenophobic GOP base, but what you’re actually doing is comprised of little more than some hand waving and a few farts unless you take meaningful, broader action.

I tend to think the real motivation here is actually just the usual: money. The GOP wants to force ByteDance to offload TikTok to an American billionaire of its choice. If you recall, Trump’s big “solution” for the “TikTok problem” was to sell the entire app to his buddies over at Walmart and Oracle, the latter with a long track record of its own various privacy abuses.

I’d wager this entire performance about TikTok is the lobbying off-gassing of some company that either doesn’t want to compete with TikTok directly (Facebook lobbyists can often be found trying to cause DC moral panics around TikTok), or some company or companies that hope to leverage phony privacy concerns to force ByteDance to sell them one of the most popular apps in tech history.

This is context you’ll find largely omitted from most press coverage of the story. Instead, you can watch as most press outlets unquestioningly frame politicians with an abysmal track record on consumer privacy (Brendan Carr or Marsha Blackburn quickly come to mind) as good faith champions of consumer privacy, despite the documented fact they’re directly responsible for the problem they’re pretending to fix.

Filed Under: adtech, apps, china, chinese, data brokers, disinformation, ftc, marco rubio, mike gallagher, privacy, propaganda, regulatory oversight, spyware, surveillance
Companies: tiktok

Marco Rubio Got Furious At Google Because His Fundraising Emails Were Going To Spam. Turns Out His Email Was Misconfigured

Email

from the stop-spamming dept

Over the last few months, we’ve been covering a ridiculous situation in which Republicans are trying to force their spam into your inboxes. It began with a study that some Republicans misread (or deliberately misinterpreted) to claim that Google was “censoring” their political mailings. That study showed that for an untrained, brand new mailbox, Google would send more GOP campaign mailings to spam as compared to Democrats. However, it also showed that the reverse was true for other large email providers Outlook.com and Yahoo Mail. Perhaps even more importantly, it showed that if the user did just a bit of training of Gmail’s spam filter, this issue went away. Also, the study did not take into account the differences in tone, style, and content of Republican and Democrat emails.

And yet… if you talk to some Republicans, you’d think this was the biggest issue ever. Of course, last week the NY Times may have uncovered the real root cause of this (though it did not connect the two): donations to Republicans have been dropping. There are likely many reasons for this. It could be the tight economy. It could be that more and more people are realizing Republicans no longer stand for anything beyond stupid culture wars. It could be that for all the fun it is to “own the libs,” now that the Supreme Court has dismantled a variety of rights and protections, people are waking up with a bit of a hangover, and a realization that this isn’t what they actually wanted. There are lots of reasons it could be, but the Republicans — driven by the Republicans’ favorite spamming agency, Targeted Victory — have decided that it must be because Google is sending their emails to spam.

Thus, they’re doing everything they can to force their spam into your inbox. This includes introducing an actual law that says email providers can no longer shunt politician emails to spam. Google, perhaps fearing an upcoming GOP administration, folded like a cheap card table, and requested that the Federal Election Commission allow them to whitelist politician emails. The FEC has been flooded with comments about this proposal, almost all of them screaming that they don’t want this. It’s still quite possible that the FEC will approve the program, because the request to the FEC is really about whether or not this is an unfair campaign contribution, not whether or not people want more political spam in their inbox.

And, yes, it’s political spam. As we’ve noted repeatedly, Republicans in recent years have really embraced extremely spammy techniques that appear to be much more focused on separating gullible rubes from their money, including tricking them into unwittingly making recurring donations (perhaps another reason why their fans are less interested in donating this time around). We’ve also covered how one Republican candidate is tricking people into donating to his campaign by pretending he’s sending emails on behalf of more famous candidates like Trump or DeSantis.

In short: Republicans are using spam techniques, pushing historically unpopular ideas, and ripping off their base. But, rather than fix any of that, they want to force people to see their spammy emails in their inboxes.

Last week, the Washington Post had a deep dive article on all of this with a few quite revealing anecdotes. It covers various meetings and sessions where clueless GOP politicians scream at Google without realizing how much they’re telling on themselves. The most notable: Marco Rubio apparently was absolutely furious with Google… until someone realized whoever he was paying to handle his email hadn’t configured his email properly, and that was the problem:

The most forceful rebuke, attendees said, came from Sen. Marco Rubio (R-Fla.), who claimed that not a single email from one of his addresses was reaching inboxes. The reason, it was later determined, was that a vendor had not enabled an authentication tool that keeps messages from being marked as spam, according to people briefed on the discussions. Rubio campaign manager Mark Morgan said the problem also required Google to perform a reset on its end. Google’s Castañeda said such resets are standard practice once senders adhere to best practices.

The article doesn’t go into detail, but it sounds like Rubio’s spamming operation didn’t set up a DKIM/DMARC authentication setup. I know this is plaguing lots of folks. Hell, it’s something we’ve had to deal with at Techdirt after we realized that Google was sending a lot of our emails to spam. But, rather than whine about “bias” against us, we explored the details and figured out how to fix our email configuration.

Also notable in the WaPo story? The fact that this is driven by the Republicans favored spamming company, Targeted Victory. We wrote a story suggesting they were behind this whole moral panic and the WaPo story, in passing, more or less confirms it:

Both Coby, from the Senate GOP’s campaign arm, and Zac Moffatt, Targeted Victory’s chief executive, were present, which struck some participants as unusual for a policy lunch.

Uh yeah. You don’t normally have your campaign spam vendor showing up to a policy lunch. Unless your campaign spam vendor is so shit at their job, that they have to go and blame Google rather than admit that their spammy fund raising tactics are failing because more and more people are sick and tired of the spam.

But, honestly, throughout the article, the one sense you get over and over again is that Republicans have an astounding sense of entitlement, combined with an incredible ignorance of how basic technology works. Add to that a lack of concern for the truth, and you get nonsense like this:

Some were unconvinced by the company’s responses. “What Google is saying is false,” Moffatt told The Post, accusing the company of seeking to “distract attention from the proven problem of unfair filtering. … Now that there has been independent, third-party confirmations, they are scrambling to find a half-baked solution that is completely unworkable.”

Coby, in a statement, said voters who sign up to receive campaign emails “should receive 100 percent of the emails unless they unsubscribe or mark the email as spam.”

“This is not what happens on Gmail. They choose to actively block GOP emails even if the voter has not taken these actions,” he added. “Google is lying if they tell you they only block emails when a voter marks as spam or unsubscribes.” (Google does not say that, in fact outlining a range of factors that go into spam filtering, such as suspicious links and phrases, in addition to user behavior.)

These very unserious people are so convinced that they’re the victims of some conspiracy that they’re even making up what Google is trying to explain to them as to why their spam gets classified as spam.

The “Google is lying if they tell you…” line is hilariously revealing. Google has never said that. It’s what an unserious, very foolish person is pretending they said because he can’t come to terms with the fact that his own company sucks at what it does, and his clients are mad. So, now he’s convinced them that Google is to blame, because his clients are even more ignorant. It’s nonsense all the way down.

Hilariously, this situation has gotten so stupid that pretty much the only people who think that Google is deliberately blocking emails are Republican politicians. As I was finishing up this article, I saw that Erick Erickson, a very rightwing/Republican supporting commentator, had a whole Substack post complaining about this same thing, and noting that this is all an attempt by Republican spam consultants to shift the blame away from their own shit email practices.

The consultant class of the GOP is pushing the mythology that Google and Apple are flagging their emails because tech companies hate Republicans. I’ve spent a week on the phone with many Republican consultants, including those tied to campaigns whose emails make it to my inbox. They all tell me the same thing — the problem is not Google or Apple, but the GOP consultant class.

He posts multiple screenshots of his own email inbox, which is basically full of Republican political spam that he never signed up for, and highlights how it’s all just terrible email practices from Republican campaigns and their “digital” consultants.

These are not examples of Google abusing Republican emails. This is an example of Republican consultants abusing emails they have access to and Google and Apple protecting their users from spam.

Unfortunately, the Republican consultants have the ears of their leaders and their solution is to pressure Google and Apple to let all the spam go through. They are selling Republican elected officials on the idea that Google is nefariously blocking their emails.

The reality is the consultants will not fess up to their abuses. They will not own up to their poor stewardship of email lists. They’ll claim the Democrats are more effective because of tech company biases and not because the Democrats are actually better stewards of an email file.

The reality though is easy to notice. 

So, even their supporters are noticing that Republican emails go to spam because they are spam. As Erickson notes:

Email and SMS spam are driving away small dollar Republican donors. The candidates are now reaping what their consultants have been sowing.

It would be nice if the media stopped covering this made up campaign as if it’s a real story, and noted the same reality that Erickson has noticed. The problem is not the spam filters. The problem is the “digital campaign” companies and their terrible practices.

Filed Under: email, gop, marco rubio, political spam, spam
Companies: targeted victory

Marco Rubio Pretends To Be A TikTok Privacy Champion, Despite Years Of Undermining U.S. Consumer Privacy

Privacy

from the yeah-you're-not-helping dept

Most of the politicians you currently see in the headlines having an absolute embolism over TikTok privacy concerns, don’t seem to appreciate (or don’t want you to understand) how they helped create the problem they’re pretending to be so upset about.

The FCC’s Brendan Carr, for example, has been enjoying massive press coverage for weeks after he demanded Google and Apple ban TikTok from their app stores over privacy issues (a request he lacks the regulatory authority to even make). But Carr has historically opposed privacy reform or guidelines of any kind, creating the environment that opened the door to TikTok’s behavior.

Marco Rubio is another Senator eager to get his name in press lights as a privacy advocate, despite contributing to the problem he claims to be fixing. Rubio and Senator Mark Warner (himself a bit of a dumpster fire on numerous tech policy issues), this week, sent a letter to the FTC asking the agency to investigate TikTok privacy abuses:

“In light of repeated misrepresentations by TikTok concerning its data security, data processing, and corporate governance practices, we urge you to act promptly on this matter,” the senators wrote FTC Chair Lina Khan.

This latest wave of TikTok moral panic began after Buzzfeed reported that U.S. user TikTok data was being shared with Chinese ByteDance executives overseas, in contrast to previous company promises. The big fear is that TikTok will share U.S. user data with the Chinese government. And the Buzzfeed revelations indicate that TikTok’s promises on privacy may not be worth much.

There are a few problems here. One, TikTok’s sloppy protection of U.S. user data, and flimsy promises as to how that data is handled, is in no way out of the ordinary for foreign and domestic companies.

Two, you could destroy TikTok today and the Chinese government could still buy this (and more) dataset(s) from a wide variety of dodgy adtech, telecoms, or data brokers. Why? Because we’ve created a global free for all data collection snoopvertising ecosystem with zero functional oversight and prioritized making money over consumer welfare. Repeatedly. For decades.

Marco Rubio has routinely voted against even modest privacy safeguards. Like he did in 2017 when he and the entirety of the GOP used the Congressional Review Act to demolish modest FCC broadband privacy safeguards after receiving thousands of dollars from telecom giants.

Most of the same folks now posturing on TikTok refuse to adequately fund or staff the FTC and FCC, and work pretty consistently to undermine oversight regulatory authority in high abuse sectors. These folks also oppose absolutely any state or federal privacy laws or reform.

They’ve actively cultivated an environment where there’s zero repercussions for being sloppy on U.S. consumer data, now posture on a single company’s abuse of an environment they created. And in many cases, like Carr and Rubio, they’ve had absolutely no comment on how this environment they created will now be exploited by authoritarians and radicals post Roe.

If you want to “fix” TikTok, you need to fix the broader ecosystem of lax privacy and security standards and penalties. Just freaking out about TikTok isn’t enough. Demanding the FTC (you’ve intentionally stripped of funding and authority over 30 years) investigate isn’t enough, as the best possible end result will almost certainly be a flimsy fine TikTok lawyers can tap dance over, under, and around.

Keep in mind, a lot of these folks are just posturing. In some cases, they’re part of an ongoing K Street campaign by Facebook to smear TikTok. In other instances, they just want to justify stealing TikTok and offloading it to U.S. companies (like Trump tried to do with Walmart and Oracle). In other instances, they’re just interested in agitating and animating the base with xenophobic moral panics to boost their political aspirations.

But for so many of these guys (Carr and Rubio in particular) you can’t look at their policy track record and honestly believe that consumer privacy reform has ever, for a single moment, been a genuine priority.

Filed Under: china, chinese, chinese government, marco rubio, privacy, social media, surveillance, telecom
Companies: tiktok

FOIA Reform We Don’t Need: Blocking Foreigners From Using FOIA

Overhype

from the this-is-just-culture-war-against-transparency dept

The US Freedom of Information Act (FOIA) system needs plenty of useful reforms to actually work correctly and properly. Despite limited time frames in which the government is required to provide information, they often take years. They regularly redact stuff they shouldn’t. Or refuse to hand over documents they are required to. Generally speaking, the government is not a fan of the kind of transparency that is not just required under the law, but necessary for a functioning government that the public trusts.

Of course, rather than fix any of that… we now have Senators Marco Rubio and Tom Cotton, both of whom have been overshadowed by the bigger, louder, more ridiculous culture warriors in their party, planning to limit FOIA requests only to American citizens, permanent residents and US companies.

Rubio and Cotton are pretending that there’s a problem here of foreigners clogging up the FOIA system and threatening our national security. Except that’s nonsense. There’s already a FOIA exemption for national security reasons. And various FOIA experts all seem to be in universal agreement that this bill is at best, performative nonsense, and at worst, leading us down the path of less transparency at a time when we need more.

This would be a major change in FOIA to achieve what seems more like a political talking point than anything else,” said Bradley Moss, a partner at the firm Mark S. Zaid P.C.

Kel McClanahan, the executive director of National Security Counselors, a nonprofit law firm, said the bill could undermine a key precept of FOIA, known as “release to one, release to all.”

“Once a document has been released under FOIA, it cannot be withheld from another requestor,” McClanahan explained. Under Rubio and Cotton’s bill, that standard would no longer be universal.

The legislation “would either not do anything useful,” he said, or it would be a “toe in the door to get rid of other things like release to one, release to all.”

As FOIA expert Lauren Harper highlights, none of this makes any sense at all:

Politics today seems almost entirely dominated by performative nonsense that actually makes the public worse off.

Filed Under: foia, marco rubio, national security, tom cotton, transparency

Marco Rubio Jumps To The Head Of The Line Of Ignorant Fools Pushing Dumb Social Media Regulation Bills

Policy

from the sit-down-marco dept

It seems like we can’t have even a peaceful week go by without yet another grandstanding fool in Congress introducing yet another terrible bill to destroy the internet. The latest comes from Senator Marco Rubio, who, last week, excitedly released a ridiculous bill that he claims will “crackdown on big tech algorithms and protect free speech.” Of course, cracking down on algorithms is, itself, an attack on free speech. And the rest of his bill is nothing but an attack on free speech.

The actual bill is a clusterfuck of bad ideas. It’s called the “Disincentivizing Internet Service Censorship of Online Users and Restrictions on Speech and Expression” or “DISCOURSE” Act, and the only thing clever about it is the name.

So what does the bill do? It says big internet companies can no longer moderate “viewpoints.” Specifically, it says you no longer get Section 230 protections if you’re a firm with a “dominant market share” who…

… engages in a content moderation activity that reasonably appears to express, promote, or suppress a discernible viewpoint for a reason not protected from liability under subsection (c)(2), including reducing or eliminating the ability of an information content provider to earn revenue…

In other words, YouTube, Twitter, and Facebook are no longer allowed to kick Nazis off their platform or even to demonetize them. This is basically “the Marco Rubio wants to make sure Nazis get free services Act.”

And from there it gets worse. It says you don’t get 230 protections for anything an algorithm recommends. You lose 230 if your firm with a dominant market share…

… amplifies information provided by an information content provider by using an algorithm or other automated computer process to target the information directly to users without the request of a sending or receiving user…

So, Facebook or Twitter trying to make your feed more relevant means they have to take on liability for everything in your feed.

For all the talk of how this is protecting “free speech,” it’s the opposite. It’s an out and out attack on the free speech of these companies to recommend to their users what they think is most relevant to them and not to be associated with assholes, trolls, Nazis and the like.

Believe it or not, the bill gets even worse and becomes an even bigger attack on free speech. It also says that if you comment upon some other content, you lose 230 protections over that content. I mean, that’s just a blatant violation of the 1st Amendment, as the entire purpose is to disincentivize companies from adding their own commentary, fact checking, and the like. The bill says you lose 230 protections if a market dominant firm…

… solicits, comments upon, funds, or affirmatively and substantively contributes to, modifies, or alters information provided by an information content provider…

Got that? Fact checking now makes you liable for the underlying thing you fact checked. That’s… both unconstitutional and ridiculous at the same time.

And it gets worse. It would only exempt a very narrow class of content, by limiting it to a revised version of (c)(2)’s classifications — taking away the subjective ability of a platform to decide what is objectionable on their platform and limiting it to:

any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user has an objectively reasonable belief is obscene, lewd, lascivious, filthy, excessively violent, promoting terrorism or violent extremism, harassing, promoting self-harm, or unlawful, whether or not such material is constitutionally protected

The wider net of “otherwise objectionable” is removed, and a few new categories are added (“promoting terrorism or violent extremism, promoting self-harm, or unlawful”). Of course, locking it to just these categories is problematic. Unless you consider Nazism to be “promoting violent extremism” then you probably can’t ban Nazis. Spam… totally allowed under this bill. Being an asshole, as long as it’s not “objectively” deemed to be harassing… must be allowed.

The bill also has a transparency clause whose only real purpose is to allow Nazis and trolls to insist they were treated unfairly, by insisting that their harassment of someone was nothing of the sort, and that they were treated unfairly.

Finally, it makes a huge additional change by saying that Section 230 is no longer an immunity, but rather “an affirmative defense.” This may not sound like much, but it gets rid of the main procedural benefit of Section 230 as an immunity. As an immunity, it means you get cases dismissed much faster. As an affirmative defense, in many cases you don’t get to assert that until much later in the case, after you’ve gone through expensive discovery. So this takes away the most useful part of Section 230 and makes it an expensive burden.

It’s hellishly weird to see someone like Marco Rubio, who pretends to be a traditional “conservative,” pushing a bill that will be a massive boon to tort lawyers, and will clog up the courts with vexatious lawsuits. But, hey, it seems that Marco has realized the only way for him to stay relevant these days is to culture war with the best of them, and thus he has to pretend that social media really is out to get conservatives (it is not) and that he has to pass an unconstitutional law to attack the 1st Amendment rights of websites. It’s a pitiful move by an increasingly pitiful politician.

Filed Under: bias, content moderation, marco rubio, section 230, social media, transparency

Lawsuit & Bi-Partisan Group Of Senators Seek To Push Back On Trump Administration's Attempt To Corrupt The Open Technology Fund

(Mis)Uses of Technology

from the do-something-good-marco dept

Last month we wrote about how the newly appointed head of the US Agency for Global Media (USAGM) had cleaned house, getting rid of the heads of the various organizations under the USAGM umbrella. That included Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia, Middle East Broadcasting… and the Open Technology Fund. The general story making the rounds is that Pack, a Steve Bannon acolyte, planned to turn the famously independent media operations into a propaganda arm for the Trump administration. Leaving side the concerns about why this is so dangerous and problematic on the media side, we focused mostly on the one “different” organization under the USAGM banner: the Open Technology Fund.

OTF is incredibly important to a functioning and open internet — especially one where freedom and privacy to communicate can work around the globe, with a focus on funding audited, open source technologies. Last week, Vice had a detailed story about what it describes as “the plot to kill the Open Technology Fund.” In it, it notes that Pack wants OTF to fund two apps that are not open source, Freegate and Ultrasurf. While both claim to be about helping circumvent internet censorship, most activists don’t trust those apps. Indeed, it notes that the developer behind Ultrasurf agreed to a security audit by the US government, but then threatened the company who did the audit with legal action if it made the report public:

VICE News has learned that Ultrasurf recently underwent a security audit to assess if the app contained any critical security flaws. The audit was conducted at the request of the State Department as a condition of funding, but the report has not been published.

This was because the developer of Ultrasurf wanted a reference to ?a high-severity bug? removed from the report, according to a source at the company that conducted the audit, Cure53.

The developer, who uses the pseudonym Clint to protect his family in China, subsequently threatened Cure53 with legal action if they ever published the report. Clint told VICE News the audit was ?sort of like a trap? and that the report was not made public because it would reveal too much about his source code.

Let’s be clear: if publishing a security audit about your software will reveal too much about your source code your app is not secure.

So why would OTF under Pack’s command suddenly be interested in funding these closed source, highly questionable apps? You guessed it:

Mainly because prominent individuals with strong links to Pack have spent the better part of the last decade repeatedly pushing these apps to receive tens of millions of dollars in funding from the U.S. government, without providing any evidence that the technology will succeed.

The two loudest proponents of these technologies are Michael Horowitz, a former director of the Project for International Religious Liberty at the Hudson Institute, and Katrina Lantos Swett, the president of the Lantos Foundation Human Rights and Justice.

The former heads of OTF told Vice that they received a threatening call from Swett basically saying that if OTF didn’t fund these questionable apps, she would lean on Pack to retaliate against OTF:

In March, around the time Trump decided to pressure Republicans in the Senate to confirm Pack?s appointment, Libby Liu, OTF?s CEO, and Laura Cunningham, OTF?s president, got a phone call from Swett and her colleagues to discuss funding for large-scale circumvention tools to help people in China bypass the Great Firewall.

Swett described it as ?a very professional and a very cordial call,? but that?s not how Liu and Cunningham remember it.

?It was quite threatening,? Cunningham told VICE News. ?They said that they were very close with Michael Pack [and] told us that there was a lot of disappointment that we were not funding the most effective circumvention tools out there. Their advice was that if we wanted to make sure we stayed in CEO Pack?s good graces, that we needed to reorient our funds immediately to support those technologies.?

Liu says Swett and her colleagues ?lectured us, you know, round robin-style, and threatened us.?

Vice also shows Horowitz showing up on Steve Bannon’s radio show last month directly saying that Libby Liu should be fired (though he mistakenly claims she’s part of Radio Free Asia, which used to house OTF, but OTF has been spun out separately from RFA for a while now):

In that video, you see Bannon ask Horowitz to repeat the name of who he wanted fired, and apparently write down Liu’s name while saying “okay.” Days later, Liu and Cunningham were both fired by Pack (incredibly, Liu had already resigned, but Pack doubled down and fired her anyway).

In response, OTF itself and the board members of many of the USAGM organizations have now sued Michael Pack, arguing that he has no right to fire people:

Although funded by Congress through grants administered by the Agency, the four organizations targeted by Mr. Pack are not part of the government. Their employees are not government employees. They are private, nonprofit organizations with their own leadership and independent boards of directors. That is by design. Their mission, collectively, is to promote the free flow of information worldwide, especially in countries where authorities restrict freedom of expression. They do this through global efforts to combat online censorship and news broadcasts in 61 different languages, reaching 400 million people each day. But they can only be effective in countering disinformation and censorship if they are rightly perceived as independent, professional, and fact-driven?not as official mouthpieces for some partisan agenda. To ensure the integrity and credibility of this vital work, their independence from political interference is protected by a strict ?firewall? embodied in statutes, regulations, and binding contract provisions. Mr. Pack?s actions this past week constitute the most egregious breach of that firewall in history.

[….]

Mr. Pack?s actions are unlawful in at least two critical respects. First, with respect to Open Technology Fund?an independent nonprofit dedicated to advancing global Internet freedom? Packlacks any legal authority whatsoever to remove its officers or directors. The statutory authority and bylaws on which Mr. Pack purported to rely do not remotely confer any such authority.Second, although Pack does have limited statutory authority with respect to personnel decisions at the other three organizations, that authority is strictly constrained by statute, regulation, and contract. With respect to all four organizations?Radio Free Europe, Radio Free Asia, the Middle East Broadcasting Networks, and Open Technology Fund?Mr. Pack?s attempt to remove the organizations? officers and directors across the board constitutes an impermissible breach of the ?firewall.? So does his attempt to freeze funds. Indeed, in each of its grant agreements with these organizations, the Agency has pledged to honor these statutory and regulatory obligations and is prohibited from ?tak[ing] any . . . action that may tend to undermine? the organizations? ?journalistic credibility or independence.?Mr. Pack?s actions impermissibly breach the ?firewall.? It is hard to conceive of a more serious breach of the organizations? legally protected independence than the wholesale decapitation of their leadership by an ideologically-oriented maker of political films, installed by the President for the stated purpose of altering the organizations? content.

On top of that, it seems that these moves by Pack to clean house have at least raised surprisingly bi-partisan concerns in Congress. A group of Senators led by Marco Rubio have sent a letter to Pack demanding an explanation and making it clear that USAGM is supposed to be independent of politics.

As the United States faces global challenges in the information space, it cannot afford to invest in an enterprise that denigrates its own journalists and staff to the satisfaction of dictators and despots, nor can it be one that fails to live up to its promise of providing access to a free and independent press. Congress set up these networks, and its governance structure at USAGM, to preserve the grantees? independence so they can act as a bulwark against disinformation through credible journalism.

We urge you to respect the unique independence that enables USAGM?s agencies and grantees to help cultivate a free and open world. Given the bipartisan and bicameral concern with recent events, we intend to do a thorough review of USAGM?s funding to ensure that United States international broadcasting is not politicized and the agency is able to fully and effectively carry out its core mission.

Beyond Rubio, the letter is signed by some fairly powerful Senators on both sides of the aisle: Dick Durbin, Lindsey Graham, Pat Leahy, Jerry Moran, Susan Collins and Chris Van Hollen. Will it convince Pack to back off? Who knows, but at least it’s nice to see that in this one very important area, some Senators have the backbone to push back against what appears to be a very swampy, corrupt move by this administration.

Filed Under: censorship, libby liu, marco rubio, michael pack, open source, open technology fund, usagm
Companies: open technology fund, radio free asia, radio free europe, voice of america

Senators Rubio, Hawley, Loeffler And Cramer Ask The FCC To Reinterpret Section 230 In A Totally Ridiculous Manner

Legal Issues

from the oh-come-on dept

It appears that Senators Marco Rubio, Josh Hawley, Kelly Loeffler, and Kevin Cramer don’t mind looking like total fools who don’t understand some fairly basic concepts about the law, so long as they can perform for their ignorant base. The latest is that they have sent a letter to the FCC, picking up on President Trump’s silly executive order and asking FCC chair Ajit Pai to reinterpret Section 230 at direct odds with the plain language of the law and the way that every single court to this day has interpreted it.

The thing is, these Senators know what a silly project this is, but because the Emperor demands fealty, and they know that their own base now depends on bowing down to insanity, they’re playing it up. Everything about this letter is silly. But because some people might take it seriously, let’s go through why it’s silly.

Dear Chairman Pai:

We write regarding the role of the Federal Communication Commission (FCC) in the recently signed Executive Order on Preventing Online Censorship. The unequal treatment of different points of view across social media presents a mounting threat to free speech. This Executive Order is an important step in addressing this form of censorship.

Once again, there is literally no evidence that there is any “unequal treatment” of different points of view, but even if there was the 1st Amendment would protect it. There is no law, anywhere, that says that you have to treat all speech equally, and that if you don’t it somehow leads to you facing liability. And, honestly, Republicans like these Senators should recognize that if that situation were to change, the first ones in trouble would be partisan organizations like Fox News.

But, thankfully, the 1st Amendment says that sites can moderate how they want.

Furthermore, Section 230 is not a “mounting threat to free speech.” Taking it away, however, would very much be a threat to free speech. Again, without Section 230, websites will have strong incentives not to host third party content, because the risks of liability will be huge, meaning that many places that now enable people to speak out will likely scale that back significantly, and in some cases entirely. The threat to free speech is coming from these Senators, not Section 230.

Section 230 of the Communications Decency Act shields social media platforms from the liability imposed on publishers when they act in ?good faith? to restrict access to or remove certain objectionable materials.

This is a blatant misreading of the law. The “good faith” part of the law covers just one part of 230 (Section (c)(2)(A)) and not to the other parts of the law, including (c)(1), which is the part that almost every court decision has depended on, regarding the rights of websites to moderate their content. (c)(1) is the part that says that no website can be held liable for third party content. And courts have (correctly) read that to mean that this also covers any moderation activity. And there is no “good faith” requirement for that.

Also, there is no “good faith” requirement in (c)(2)(B), which says there is no liability for any website for “any action taken to enable… the technical means to restrict access to material.” In other words, the “good faith” requirement does not cover the parts of the law these Senators are pretending it does, and changing the interpretation of “good faith” wouldn’t change the rights of any platform to moderate as they see fit.

Even if they were right in harping on the “good faith” requirement, they’d still be wrong, because forcing a court to determine whether or not a website’s editorial policies were done in “good faith” would be a direct 1st Amendment violation itself. After all, if you could determine whether or not Twitter’s moderation policies are “good faith” or not, you could do the same for the editorial decision making of a news organization like Fox News.

Once again, the only threat to free speech here is coming from Senators Rubio, Hawley, Loeffler, and Cramer.

However, the protections afforded by Section 230 are not absolute or unconditional

It is correct that 230’s protections are not absolute. Which is why one of the most annoying things is that these Senators (Hawley in particular) keep pretending that 230 protections are absolute and that’s why he wants to change them. I’d be happy that he’s finally admitting they’re not absolute if he were doing it in an intellectually honest manner, rather than using it here in a bullshit way to suggest this means it’s okay to ignore the law and reinterpret it in Hawley’s pro-censorship direction.

But the final word of the sentence is incorrect. Section 230 is an immunity that is based on who creates the content. It is not “conditional” like a safe harbor (like the DMCA’s 512, which requires you to meet certain rules to qualify). Section 230 has no such conditions included in it and no court has read it to, because they do not exist. What’s happening here is, again, the Senators want to shove this “good faith” thing into the conversation where it simply does not belong.

While social media companies enjoy their special status under Section 230, it is questionable that they are living up to their obligations when they blur the lines between distributor and publisher by favoring one political point of view over another.

This part is just utter nonsense. Section 230 does not have any “obligations.” And there is no line for them to “blur” between distributor and publisher (and, again, there remains zero evidence of them favoring one political point over another — that’s just a made up concept by Republicans to work the refs and try to get more favorable moderation). Pretending that there are obligations built into Section 230 is dangerous. It’s how you actually stifle free speech, by assuming every company needs to step into line to “get” the liability questions answered properly. It’s literally the opposite of the “small government” line these four politicians have all spewed in the past. They are hypocrites.

The reinterpretation of the law they are pushing for here is literally about them being the speech police.

While the President has the means to push back on unfair treatment, we worry about everyday Americans who are sidelined, silenced, or otherwise censored by these corporations.

No you don’t. This is gaslighting. There are still plenty of platforms out there that will host anyone’s content. Indeed, plenty of platforms have sprung up, in part, because they disliked the way these companies have handled their content moderation. And of course, note that these four Senators don’t explain just who it is they’re talking about. Which “everyday Americans” have been “sidelined, silenced, or otherwise censored” by these platforms? I’d bet good money that there were perfectly normal reasons, not “anti-conservative bias”.

Social media companies, whose protections come from their acting as distributors, not publishers, have increasingly engaged in partisan editorializing, censorship of Chinese dissidents, and a host of politically motivated speech policing.

This is simply laughable. If you took away 230 you’d get even less speech and more policing because of the risk of liability. This has been explained to Josh Hawley numerous times, yet he continues to trot out this nonsense.

While these actions speak for themselves, companies continue to enjoy Section 230 protections due to a lack of clear rules and judicial expansion of the statute.

No, the “rules” are quite clear. And all internet websites enjoy that protection because that’s what the law says and what was intended by Congress when it passed. And it’s simply wrong to say that courts have “expanded” the statute. They read what’s in there, and recognized that it’s silly to hold platforms responsible for the speech of others. These four Senators just don’t like what the law says. And, as such, they have the right to try to pass legislation (including some nonsensical bills that Hawley has proposed). The idea that this is a job for the FCC makes no sense at all. Indeed, in Reno v. ACLU, the case that invalidated the rest of the Communications Decency Act, the Supreme Court made it clear that the FCC has no mandate to regulate speech on websites, because the internet is protected by the 1st Amendment. In that case, in trying to reject the argument that a former case involving the FCC regulating “indecent” speech on radio would make the regulation of such speech on the internet okay, the Supreme Court said “no, the internet is not radio” and thus the FCC has no regulatory power to police speech on it:

Finally, the Commission’s order applied to a medium which as a matter of history had “received the most limited First Amendment protection,” [i.e., radio] in large part because warnings could not adequately protect the listener from unexpected program content. The Internet, however, has no comparable history.

[…]

In Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 557 (1975), we observed that “[e]ach medium of expression … may present its own problems.” Thus, some of our cases have recognized special justifications for regulation of the broadcast media that are not applicable to other speakers, see Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica Foundation, 438 U. S. 726 (1978). In these cases, the Court relied on the history of extensive Government regulation of the broadcast medium, see, e. g., Red Lion, 395 U. S., at 399-400; the scarcity of available frequencies at its inception, see, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638 (1994); and its “invasive” nature, see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128 (1989).

Those factors are not present in cyberspace. Neither before nor after the enactment of the CDA have the vast democratic forums of the Internet been subject to the type of government supervision and regulation that has attended the broadcast industry. Moreover, the Internet is not as “invasive” as radio or television.

Indeed, as the case made clear, the FCC could regulate broadcast airwaves, because it was scarce spectrum that the government was handing out to broadcasters. That is not true of the internet:

Finally, unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a “scarce” expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds. The Government estimates that “[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999.” This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, “the content on the Internet is as diverse as human thought.” 929 F. Supp., at 842 (finding 74). We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.

In other words, the FCC has no authority to regulate the internet at all.

Back to the nonsense letter from the Senators.

Social media companies have become involved in a range of editorial and promotional activity; like publishers, they monetize, edit, and otherwise editorialize user content.

They make it sound like this is a new thing. Instead, this is exactly why Section 230 was written in the first place. A ruling in NY said that because the internet service Prodigy tried to create a “family friendly” service (i.e., it editorialized its forums, and monetized it), it suddenly faced liability for those moderation choices. Congress realized how dangerous that was to free speech online and passed 230. These Senators are simply ignoring the real history and trying to gaslight people into believing an entirely false one.

It is time to take a fresh look at Section 230 and to interpret the vague standard of ?good faith? with specific guidelines and direction.

If it is time to take a fresh look at Section 230, then that is Congress’ job, and not the FCC’s. And, again, the good faith part only applies to a very limited segment of 230 (and one that is almost never used in court).

In addition, it appears that courts have granted companies immunity for editing and altering content even though the text of Section 230 prohibits immunity for any content that the company ?in part ? develop[s].? These interpretations also deserve a fresh look.

This is also misleading. The part that says “in part… develop[s]” is the definition of an internet content provider. They’re trying to misinterpret this section to mislead people into believing that content moderation makes a service a “content provider” rather than an “interactive computer service.” In other words, they’re leaning very heavily on the “in part… develop[s]” to try to bring about the mythical “publisher” / “platform” split.

But the only way that can happen is if you take this obvious misread of the definitions of 230, and ignore the direct stated intention and words of the rest of the law. That’s what these Senators are doing. No court has ever bought into this definition. The authors of 230 have said over and over again that this was never the intent or purpose of 230.

And here’s the thing: courts have made it clear that sites that do develop their own content are liable for that content. The Roommates.com case made it clear that sites can be liable for the content they create “in part.” But the content they create is different than the content that is moderated. So, for example, the actual text of Twitter’s now-infamous “fact check” of President Trump’s tweets is not protected by Section 230, because the fact check text itself is content created by Twitter. So it’s not like 230 has any bearing there.

But that content is protected by the 1st Amendment. Because there’s literally nothing at all illegal about saying “hey, check out more information that suggests the President is lying to you.” It’s quintessential 1st Amendment protected speech, responding to a public figure who was spewing propaganda.

If anything, taking away 230 would make Twitter potentially liable for whatever awful, defamatory things the President himself tweets.

We therefore request that the FCC clearly define the framework under which technology firms, including social media companies, receive protections under Section 230.

There is no framework. The law requires no framework. The FCC has no authority to interpret the law here, and any interpretation they make is meaningless and would likely be ignored by courts who, at best, would wonder why the FCC is butting in here in the first place.

And here’s the little secret Marco Rubio, Josh Hawley and the other Senators don’t want you to realize: they know this. They’re performing this kind of thing because the President wants this crew of no-spine Senators to back up his nonsense. And now we know which kind of spineless, hypocritical dolts hop to it when the Emperor orders them to make fools of themselves.

Filed Under: 1st amendment, ajit pai, bias, cda 230, fcc, free speech, josh hawley, kelly loeffler, kevin cramer, marco rubio, section 230

Senators Threaten Twitter For Allowing Iranian Official Who Helped De-Escalate Tensions Via Twitter To Tweet

Free Speech

from the politicians-censoring-politicians dept

It’s somewhat amazing how quickly officials lean into the idea of censorship as the first response to other officials saying things they don’t like. Rep. Nancy Pelosi’s office asked both Twitter and Facebook to remove a tweet by Donald Trump (both companies refused). Trump’s tweet showed a misleadingly cut video of Nancy Pelosi. Similarly, Rep. Ro Khanna — who has done some great things, including looking into the harm caused by FOSTA — demanded that Twitter delete that same tweet, falsely stating that “falsity has never been a part of the 1st Amendment,” which is (to repeat myself), false.

Now, if you’re a Trump supporter about to get up in arms over a Democratic politician asking Twitter to delete a tweet from the President, slow down a bit, because around the same time, four Republican Senators were in the process of sending an angry letter to Twitter, telling Jack Dorsey that his company was breaking the law by allowing Iranian officials to tweet. The letter, sent by Senators Ted Cruz, Marsha Blackburn, Tom Cotton, and Marco Rubio (all of whom, I assure you, have cynically claimed to support free speech in the past), notes that Trump signed an executive order last year putting sanctions on Iranian officials and preventing US companies from providing goods and services to them:

On June 24 2019, the President invoked his IEEPA powers through Executive Order 13876… blocking the property of “the Supreme Leader of the Islamic Republic [Ali Kamenei] of Iran and the Iranian Supreme Leader’s Office” and well as persons who act or purport to act on the Supreme Leader’s behalf. On July 31, 2019, OFAC designated Iranian Foreign Minister Javad Zarif pursuant to E.O. 13876. All Americans — including you and Twitter — are prohibited from “the making of any contribution or provision of . . . goods[] or services” to them.

Note that in addition to the general prohibition on Americans providing services to SDNs, Section 1(a)(2)(C) of E.O. 13876 makes it a sanctionable offense for “any person” to have “provided… technological support for, or goods or services to” persons designated pursuant to that E.O.

Twitter continues to provide Internet-based communications services to Khamenei and Zarif. Twitter is aware of these accounts and their links to the Iranian regime. The Supreme Leader’s English-language account, @khamenei_ir, has had tweets removed for advocating murder. The account follows less than 10 other accounts, including his office’s Twitter feeds in Urdu, Arabic, French, Spanish, and Persian, which are straightforward to identify and locate. Zarif’s account, @JZarif, is verified.

The letter also claims that the Ayatollah gets no free speech protections at all, while simultaneously saying that Twitter should never “censor” American’s “political speech.”

While the First Amendment protects the free speech rights of Americans — and Twitter should not be censoring the political speech of Americans — the Ayatollah enjoys zero protections from the United States Bill of Rights. And, as the leader of the world’s leading state sponsor of terrorism — directly responsible for the murder of hundreds of U.S. citizens — the Ayatollah and any American companies providing him assistance are entirely subject to U.S. sanctions laws.

A Twitter account is a service. Neither GL D-1 nor any other authority exempts Twitter from American sanctions. We therefore call on you to comply with those sanctions by ceasing the provision of services to Khamenei, Zarif, and any other designated Iranian entity.

I’m no expert in the laws regarding U.S. sanctions, so I’m not sure of the legal responsibilities here. But it does seem patently ridiculous to think that merely publishing a foreign leader’s speech should violate any such sanctions. It would certainly open up a lot of serious questions about what counts as providing “services” to sanctioned individuals.

But, even more to the point, is that this letter comes just a month after it was shown that Zarif — who the Senators want Twitter to ban — and Trump himself may have averted escalations with Iran thanks to both of them being on Twitter. That story highlighted how Zarif indicated via Twitter that Iran did not wish to escalate matters with the US, and Trump quickly tweeted a similar response. Diplomacy via tweet. Of course, if these Senators got their way, that would not be allowed.

Given all that, it makes you wonder why Senators Cruz, Blackburn, Cotton, and Rubio are looking to cut off that means of communication.

Filed Under: donald trump, free speech, iran, javad zarif, marco rubio, marsha blackburn, sanctions, services, ted cruz, tom cotton
Companies: twitter

In These Partisan Times, The Only Thing That Gets Bi-Partisan Agreement Is That Blizzard Sucks

News

from the crossing-aisles dept

We live in partisan times. The left and the right might as well be cats and dogs, mostly incapable of living together and the subject of fascination by the public when they manage to work together in the slightest way. The country needs a rallying cry. Something to bring both sides of the aisle together to demonstrate to all that they can actually agree on things.

Blizzard appears to be that something. In the wake of the backlash against Blizzard for its actions taken to silence and punish eSports competitors that chose to voice support for the ongoing protests in Hong Kong, it seems that everyone from Alexandria Ocasio-Cortez to Marco Rubio agrees that the company needs to do much, much better.

Today, United States Senators Ron Wyden and Marco Rubio signed a bi-partisan letter with support from Representatives Alexandria Ocasio-Cortez, Mike Gallagher, and Tom Malinowski addressed to Bobby Kotick, CEO of Activision Blizzard, over the recent suspension of professional Hearthstone player Chung “Blitzchung” Ng Wai.

“We write to express our deep concern about Activision Blizzard’s decision to make player Ng Wai Chung forfeit prize money and ban him from participating in tournaments for a year after he voiced support for pro-democracy protests in Hong Kong,” the letter reads. “This decision is particularly concerning in light of the Chinese government’s growing appetite for pressuring American businesses to help stifle free speech.”

Now, it’s true that this particular letter is toothless. It’s also true that Blizzard has already reduced some of the penalties it levied on Chung, even though such a reduction was entirely besides the point and lowered the temperature on this controversy not at all. Still, what this really should highlight for the reader is that the public backlash against Blizzard has reached a volume that Congress critters are making public statements about it, and in a bi-partisan way. That’s no small thing.

There is a great deal for one side or the other of the political aisle to be angry about these days. For Blizzard to unify that anger against itself should really inform the company’s assessment as to how beneficial it is to bow to Chinese demands to stifle the speech of its competitors.

Again, this is a toothless letter…for now. But if it changes the calculus on future decisions Blizzard might take, that’s a good thing.

Filed Under: alexandria ocasio-cortez, blitzchung, free speech, hong kong, marco rubio, mike gallagher, ron wyden, tom malinowski, video games
Companies: activision, activision blizzard, blizzard