There are a lot of elections worldwide, and these events invariably raise significant concerns regarding potential manipulation, particularly in light of emerging technologies such as generative AI. To help address these concerns, we are reintroducing our innovative “election threatcasting” game, Threatcast 2024, which has been designed to help users anticipate and counteract such threats.
In 2019, Mozilla commissioned us to develop Threatcast 2020, a unique election simulation game. The game was crafted to empower groups of participants, under our facilitation, to delve into the intricate dynamics of new technologies, disinformation campaigns, and public manipulation tactics that could influence the 2020 election. We successfully ran in-person sessions late in 2019. With the onset of the pandemic, our team worked to adapt the game for online play while preserving the interactive, facilitated experience. We then hosted numerous sessions online, which proved to be valuable in the lead-up to the 2020 election, providing useful, actionable insights into the electoral process and its vulnerabilities.
Now that it’s 2024, and with a significant number of pivotal elections on the horizon, we are making it available again, in an updated manner. The updates are focused on keeping up with the times, exploring new technologies like generative AI, and the very different social media ecosystem than four years ago. We’re also expanding the focus as well, as the 2020 game was heavily focused on disinformation, and the new version covers many different types of election manipulation beyond just disinformation.
If you’re interested in hiring us to run a Threatcast 2024 session for your company, organization, event, or any other purpose, let us know. It’s a great (and very fun) way to explore potential threats that may emerge during this critical election period. Whether you’re an internet platform seeking to build up your defenses against emerging risks, or you’re looking for a unique and insightful team-building exercise, our Threatcast 2024 is the perfect tool to equip and enlighten your team.
The game immerses players in diverse roles, allowing them to test out an array of strategies—and corresponding countermeasures—to gain an in-depth understanding of how manipulation tactics could unfold across a multitude of scenarios.
The game is currently designed to reflect the intricate dynamics of US elections and is ideally suited for groups of 15 to 30 participants. However, we pride ourselves on our flexibility and are fully prepared to tailor the game to accommodate the unique needs of specific groups. Whether it involves adjusting to different group sizes, incorporating particular constraints, or adapting the game for election scenarios outside of the US, we are committed to providing a personalized experience. Additionally, we offer the versatility of facilitating the game both in person and online to ensure accessibility and convenience for all participants.
As you probably noticed, the House just passed the controversial ban on TikTok, with 352 Representatives in favor, and 65 opposed. The bill is now likely to be slow-walked to the Senate where its chance of passing is murky, but possible. Biden (which has been using the purportedly “dangerous national security threat” to campaign with) has stated he’ll sign the bill should it survive the trip.
The ban (technically a forced divestment, followed by a ban after ByteDance inevitably refuses to sell) passed through the house with more than a little help from Democrats:
Not talked much about in press coverage is the fact that the majority of constituents don’t actually support a ban (you know, the whole representative democracy thing). Support for a ban has been dropping for months, even among Republicans, and especially among the younger voters Democrats have already been struggling to connect with in the wake of the bloody shitshow in Gaza:
As the underlying Pew data makes clear, a lot of Americans aren’t sure what to think about the hysteria surrounding TikTok. And they’re not sure what to think, in part, because the collapsing U.S. tech press has done a largely abysmal job covering the story, either by parroting bad faith politician claims about the proposal and app, or omitting key important context.
The press has also been generally terrible at explaining to the public that the ban doesn’t actually do what it claims to do.
Banning TikTok, but refusing to pass a useful privacy law or regulate the data broker industry is entirely decorative. The data broker industry routinely collects all manner of sensitive U.S. consumer location, demographic, and behavior data from a massive array of apps, telecom networks, services, vehicles, smart doorbells and devices (many of them *gasp* built in China), then sells access to detailed data profiles to any nitwit with two nickels to rub together, including Chinese, Russian, and Iranian intelligence.
Often without securing or encrypting the data. And routinely under the false pretense that this is all ok because the underlying data has been “anonymized” (a completely meaningless term). The harm of this regulation-optional surveillance free-for-all has been obvious for decades, but has been made even more obvious post-Roe. Congress has chosen, time and time again, to ignore all of this.
Banning TikTok, but doing absolutely nothing about the broader regulatory capture and corruption that fostered TikTok’s (and every other companies’) disdain for privacy or consumer rights, isn’t actually fixing the problem. In fact, as Mike has noted, the ban creates entirely new problems, from potential constitutional free speech violations, to its harmful impact on online academic research.
I’ve mentioned more than a few times that I think the ongoing quest to ban TikTok is mostly a flimsy attempt to transfer TikTok’s fat revenues to Microsoft, Google, Twitter, Oracle, or Facebook under the pretense of national security and privacy, two things our comically corrupt, do-nothing Congress has repeatedly demonstrated in vivid detail they don’t have any genuine interest in.
TikTok creators seem to understand this better than the gerontocracy or the U.S. tech press:
But if Congress were really serious about privacy, they’d pass a privacy law or regulate data brokers.
If Congress were serious about national security, they’d meaningfully fight corruption, and certainly wouldn’t support a multi-indictment facing authoritarian NYC real estate con man with a fourth-grade reading level for fucking President.
So when Congress pops up to claim it’s taking aim at a single popular app because it’s suddenly super concerned about consumer privacy, propaganda, and national security, skeptics are right to steeply arch an eyebrow. You realize we can see your voting histories and policy priorities, right?
Xenophobia, Protectionism and Information Warfare
The GOP motivation for a TikTok ban has long been obvious: they believe TikTok’s growing ad revenues technically belong, by divine right, to white-owned U.S. companies. But the GOP also sees TikTok as an existential threat to their ever-evolving online propaganda efforts, which have become a strategic cornerstone of an increasingly extremist, authoritarian party whose policies are broadly unpopular.
The GOP is fine with rampant privacy abuses and propaganda — provided they’re the ones violating privacy or slinging political propaganda. You’ll recall Trump’s big original fix for the “TikTok problem” (before a right wing investor in TikTok recently changed his mind, for now) was a cronyistic transfer of ownership of TikTok to his Republican friends at Walmart and Oracle.
Former Trump Treasury Secretary Steve Mnuchin and his Saudi-funded Liberty Strategic Capital is already hard at work putting investors together to buy the app. If the GOP (or a proxy) manages to buy TikTok, they’ll engage in every last abuse they’ve accused the Chinese government of. TikTok will be converted, like Twitter, into a right wing surveillance and propaganda echoplex, where race-baiting authoritarian propaganda is not only unmoderated, but encouraged.
All under the pretense of “protecting free speech,” “antitrust reform,” or whatever latest flimsy pretense authoritarians are currently using to convince a gullible and lazy U.S. press that they’re operating in good faith.
Why Democrats would support any of this remains an open question. The ban would likely aid GOP propaganda efforts, piss off young voters, and advertise the party (which had actually been faster to embrace TikTok than the GOP) as woefully out of touch. All while not actually protecting consumer privacy or national security in any meaningful way. And creating entirely new problems.
National security, consumer privacy, or good faith worries about propaganda don’t enter into it.
Some Democratic Reps, like Ro Khanna, Alexandria Ocasio-Cortez and Sara Jacobs seem to understand the trap, keeping the focus on a need for a federal privacy law that reins in the privacy and surveillance abuses of all companies that do business in the U.S., foreign or domestic. Some senators, like Ron Wyden, have worked hard to ensure equal attention is paid toward rampant data broker abuses.
But 155 House Democrats voted for the ban, either because they’re corrupt, or they have absolutely no idea how any of this actually works. Pissing off your constituents by ruining an app used by 150+ million (mostly young) Americans during an election season is certainly a choice, especially given negligible constituent support–and growing evidence it likely creates more problems than it professes to solve.
Axon, most famous for producing Tasers, is again making the sort of headlines it really shouldn’t make.
Everyone knows Taser. The company produces the most-used “less lethal” weapons cops deploy. “Less” is the key word here. It’s basically a cattle prod for humans but one that’s routinely deployed with less care than a cattle prod, even if its manufacturer instructs cops to limit the number of uses per minute or cautions against over-use of drive stun mode. People with heart conditions shouldn’t be tased, but no one’s consulting medical files before affecting arrests. People who’ve just doused themselves with gasoline definitely shouldn’t be tased, but you go to war with the army you have.
Axon is now more interested in selling body cams to cops. It will still sell you all the Tasers you want, but the real money is in the data storage and access market. It’s the inkjet printer plan, but for cops. The body cams are the loss leaders. Record all you want, but storing and accessing recordings will cost you, much in the same way your $29.99 printer won’t function until you buy a $70 3-color ink refill.
This shift in focus has allowed Axon to make more money while distancing itself from Tasers and the damage done — something it definitely needed to do as medical association after medical association refused to recognize “excited delirium” as an actual health condition.
For some reason, Axon seems to have a problem with accepting rejection, despite being the most-recognized name in the lucrative body cam field. A little more than four years ago, Axon generated negative headlines for refusing to gracefully accept the termination of a contract. The Fontana, California police department discontinued its use of Axon body cameras, making its $4,000/year contract with Axon’s Evidence.com completely useless.
Axon refused to take the L. It responded to the Fontana PD’s suggestion it would not continue to pay the bill for services it wasn’t using with this:
The only cancellation term is Termination for Non-Appropriations or lack of funding. There is a negative effect, however, as it can affect the credit rating of the City. Since we are looking at about nine months it would probably make more sense to ride out the rest of the contract…
In other words, Axon suggested it would report each month of non-payment to credit agencies, dragging down the city’s credit rating simply because it didn’t want to pay for something it wasn’t using.
While some might defend Axon by saying “the city signed a contract!,” that argument doesn’t hold up. The contract (contractually!) gave the city this option: “termination for convenience.” That clause meant the city could cancel the contract for exactly the reasons stated: it no longer required Axon’s storage and access services because it was no longer using the company’s body cameras.
Axon is doing this shit again, albeit for much different reasons. As Sam Kmack reports for AZCentral, Axon is again behaving in an extremely petty fashion because it didn’t get what it wanted.
Scottsdale’s city attorney confirmed in a sharply worded letter that an Axon employee had contacted a city planning commissioner’s boss about the official’s opposition to a controversial project.
“This type of action tends to raise public concern about the integrity of the city’s public hearing process,” City Attorney Sherry Scott wrote in a letter dated Friday. “It can also have a chilling effect on … public officials’ willingness to serve in their volunteer capacity.”
Here’s the thing about city and town commissioners. Being a commissioner isn’t their only job. Most commissioner positions don’t pay enough to be anyone’s only job. On top of that, their work for the locales they represent doesn’t consume 40 hours a week, 52 weeks a year.
So, when Axon pitched the city of Scottsdale a plan to build 2,000 apartment units near its proposed headquarters, it assumed the city would choose to ignore the fact that the location it had chosen wasn’t actually zoned for apartment construction.
Axon reps attended a city meeting in January, hoping to convince commissioners that rezoning the area to give Axon what it wanted would be a win for all Scottsdale residents. The commissioners disagreed, with Planning Commissioner Christian Serena being the most vocal in his objections.
Last month, Serena informed the city attorney a member of “Axon’s leadership” had contacted his day job, allegedly telling his employer (Merrill Lynch), presumably insinuating that his day job presented some form of conflict of interest since Merrill Lynch has also made overtures to Axon in an attempt to secure its (still-undefined) business.
Scott confirmed in the letter, addressed to Axon’s lawyer, an Axon employee did contact Serena’s employer, Merrill Lynch.
“It is apparent to me that an Axon employee did contact Commissioner Serena’s employer to discuss dissatisfaction with Commissioner Serena’s public hearing comments,” Scott wrote.
This “dissatisfaction” was explained more explicitly in Axon CEO Rick Smith’s response to the city attorney’s letter.
“Your March 1st letter was in the hands of multiple media outlets within hours of receipt. Up to this time, we limited our correspondence with media out of respect for the integrity of the process,” Smith’s letter read. “Unfortunately, it appears some within the City are more focused on prioritizing political theater.”
Smith’s letter contends Serena may have had a conflict of interest in deciding on Axon’s project because “Merrill Lynch (and its parent company) Bank of America have been unsuccessful in winning Axon’s business” despite approaching the company on “several occasions.”
Whew. That’s not even a denial. That’s pretty much an admission someone pretty far up the org chart tried to convince the commissioner’s employer that Serena was supposedly rejecting Axon’s request for re-zoning solely because Merrill Lynch’s courtship of Axon had been unsuccessful.
Even if this were true (and there’s not a whole lot of reason to believe it is), the proper way to handle this would be to take it up with the city’s commissioners, rather than approach a commissioner’s day job and try to get them reprimanded, if not fired, simply because Axon failed to convince a city government to alter the regulatory landscape to indulge one company’s wishes.
It’s not a good look, especially for a company that relies almost solely on contracts with government agencies to make ends meet. And it’s definitely not a good look for a company that’s done this sort of thing before. Sure, this may seem like two unrelated instances, but if it’s been caught doing this twice, there’s a good chance it’s gone a bit thuggish in the past, but has managed to escape being called out publicly.
Politics is messy, and you get the feeling that a lot of internet companies want nothing to do with “politics” of any kind. Back in 2019 Twitter (when it was still Twitter) decided to ban all political ads, a near-impossible task guaranteed to make a mess of things (such as banning “get out the vote” ads). Soon after, both Google and Facebook (when it was still Facebook) also cut back on political ads.
This was always interesting, because it disproves the idea that companies will do anything for revenue. The constant political fighting made it seem too much of a hassle to make money this way, so it was easier to just claim that all such ads were blocked.
But, there’s a big problem with this approach — as we saw with the trouble with the ad bans earlier: how the hell do you define what’s “political”? Sure, some “politics” is obvious. Things about politicians running for office? Easy call. But it gets more and more difficult as things go.
Is an ad about the environment political? About healthcare? Libraries? In some contexts, yes. In others, maybe not?
We’re debating this again as Meta keeps insisting that it will not promote “political” content on Threads (which is sort of what would happen if Twitter and Instagram had a lovechild, where you might be surprised which genes the offspring got from which parent app). From early on Threads/Instagram boss Adam Mosseri has made it clear that he doesn’t want the site to be big for political content.
That’s gotten more attention in the last few weeks as the company said it’s tuning its algorithm to downplay political content (though you can opt back into it, if you want it).
But that leaves open the same question we discussed above: how the hell do they define “political” content? As you move outside of the ads space, it gets even more complicated. These days, your choice of food products or clothing can be considered political. What books you buy? What music you like? Where you live? All of them are possibly political. People’s very identities are often politicized.
How do you downplay your identity?
Many people have been asking, but Meta’s response to most reporters has been evasive. The company has now given a little more guidance to the Washington Post, but I’m not sure it helps much:
So far, the company has offered only clues about where it will draw those lines. In a blog post announcing the policy, Instagram described political content as “potentially related to things like laws, elections, or social topics.” Laws and elections seem clear-cut enough, as categories go, but “social topics” leaves a lot of room for guesswork.
In a statement to The Tech 202, Meta spokeswoman Claire Lerner offered a bit more detail.
“Social topics can include content that identifies a problem that impacts people and is caused by the action or inaction of others, which can include issues like international relations or crime,” she said. She added that Meta will work continually to refine its definition over time.
Got that? It’s “potentially related to things like laws, elections or social topics” where social topics is “content that identifies a problem that impacts people and is caused by the action or inaction of others.” Though this definition may need to be “refined” over time.
Yeah, so, that doesn’t clear up much of anything. Indeed it’s about as clear as mud.
Now, some of this is the very nature of content moderation. It is a constant game of taking wholly subjective rules about what is and what is not allowed, and having to apply them in a manner that pretends to be objective. It’s not possible to do well at scale.
But, based on this, it sounds like anything around climate change, mental health, poverty, housing, traffic, etc. could all be deemed “political.” Of course, it’s not clear to me that things like banning books in schools and libraries quite meet this definition? What about talking about the First Amendment? Or the Second Amendment? Or the Fourteenth.
The reality is that the politics here is in the deciding. By announcing that it will downplay political content, Meta is just shifting the issue. Rather than worrying about people fighting over politics on Threads (which will still happen), now they can also fight over Meta’s ever-evolving definition of what content is, and is not, political.
The very act of promising to downplay political content is, inherently, political content itself.
I can understand the desire to cut politics out as a platform, but it’s hard to see how this works in any reasonable way in practice. There are always politics around, and Meta is opening itself up to widespread criticism no matter how it defines politics, because each such decision will now be a political one — not by Meta’s users, but by Meta itself.
Well, this is not that much of a surprise, but in the leadup to the Senate “child safety” dog and pony show that will be happening in a few hours, Microsoft decided to twist the knife in to some of its competitors. Microsoft’s Vice Chair and President, Brad Smith (who was formerly the company’s general counsel and absolutely understands the impact of what he’s doing) came out and endorsed the Kids Online Safety Act (KOSA).
If you can’t read that, he says:
Technology can be a powerful tool for learning, creativity, communication, and social good, but can equally pose significant challenges and risks for young users. We must protect youth safety and privacy online and ensure that technology – including emerging technologies such as AI – serves as a positive force for the next generation.
The Kids Online Safety Act (KOSA) provides a reasonable, impactful approach to address this issue. It is a tailored, thoughtful measure that can support young people to engage safely online. Microsoft supports this legislation, encourages its passage, and applauds Senators Blumenthal and Blackburn for their leadership.
This is absolute bullshit on multiple levels. First off, weird plug for AI there, which has nothing to do with any of this, and which is likely to be Congress’ next target of “bad” tech.
Of course, that may very well be why Smith is doing this. He knows it’s an easy way to cozy up with Congress and pretend to support their agenda, while the downside risk to Microsoft is minimal. KOSA is going to cause a pain for more consumer-facing social media sites like Instagram and YouTube, but Microsoft-owned sites like LinkedIn and GitHub are most likely to be spared. So, as a totally cynical approach, this saddles some of Microsoft’s largest competitors with a nonsense compliance headache, while letting Microsoft publicly claim it’s “protecting the kids” while getting kudos from Congress.
However the claim that KOSA is “reasonable,” “impactful,” “tailored,” or “thoughtful” is just grade-A bullshit. The law is a total mess, and will do real harm to kids beyond just being obviously unconstitutional. As we’ve pointed out multiple times, GOP support for the bill is because they know it will be used to censor LGBTQ content. The GOP’s leading “think tank,” the Heritage Foundation has publicly supported the bill because they believe censoring LGBTQ content “is protecting kids.” Meanwhile, bill co-sponsor, Marsha Blackburn (whom Smith thanks above for her “leadership,”) has similarly admitted that Congress should pass KOSA to “protect minor children from the transgender in our culture.”
There is no excuse for Microsoft to take this stance, which Smith well knows will likely lead to kids dying, rather than being protected. But, Smith is a cynical political operator and knows exactly what he’s doing. He’s doing a favor for Congress while cynically kicking his rivals while they’re down. Between this and Snap’s similar capitulation, expect to see all sorts of nonsense at the hearing about how “some companies want to protect our children, why won’t you?” addressed to the other company representatives.
Microsoft, over the last decade or so, really rehabilitated its public image as the evil company of the 90s that crushed competitors through any dirty trick imaginable. But that DNA is still in there, and it will miss no opportunity to kick competitors, even if it comes at the expense of children.
At one point, we had a functioning Constitutional Republic. Sure, it wasn’t an actual democracy — the Electoral College still elected our president — but it seemed to function about as well as any major nation’s government does, if not better on most occasions.
Then things changed. For reasons I still can’t understand, a failed billionaire with a sexual harassment problem was elected president. He lost the popular vote but won the electoral college vote, providing his base with plenty of reasons to ensure the electoral college still made the major decisions for the US of A.
After four years of extreme mismanagement, Trump lost the next election. He not only lost the popular vote, but he lost the electoral college vote. But rather than lame duck his way into presidential history like his predecessors, he offered his support to his followers’ attempt to overthrow the government.
This action shocked the portion of the nation still capable of being shocked following four years of demonizing anyone not straight or white while people died by the millions as the Trump Administration refused to treat a pandemic like a pandemic.
While, again for bizarre and incomprehensible reasons, Trump remains the frontrunner for the 2024 Republican nomination, somewhat distantly behind him is the great hope of Republicans who think “what if Trumpy, but not quite so Trumpy,” who also currently presides over Florida. Ron DeSantis has absorbed the lessons taught by one of worst presidents ever to endear himself to a voting base that seemingly desires the chance to have their throats crushed by their chosen government thug. He speaks for so-called constitutional originalists who believe the Constitution doesn’t cover anything they don’t like.
DeSantis is the freshest face of the Party of Hate, which has spent the past half-decade leveraging the support of political bottom feeders to roll back an already-shredded Constitution. If you think reversing Roe vs. Wade was the end goal, you’re lying to yourself. That may have set us back 50 years. The end goal is taking us back at least 150 years to a time when no one but white men could vote, and anyone not immediately recognizable as hetero would not be recognized as a human being with human rights.
Executive power has always been accessible to executives — whether they preside at the national or state level. Occasionally, abuses happen. But most executives seem to realize they have more to lose than gain if they leverage these powers to destroy their opposition.
Not only are the gloves off post-Trump, but Florida governor Ron DeSantis obviously feels he has nothing to lose by engaging in obviously-political deployments of his executive power. At one point, we had something resembling a democracy, replete with checks and balances. Now, we’re dealing with a competitive set of autocrats who desire a fuller deployment of ex-president Trump’s zero-sum version of democracy.
Gov. Ron DeSantis’ suspension of the prosecutor in Orlando is drawing attention to his repeated use of his executive authority to remove local officials whose policies he disagrees with, but who have not been charged with crimes.
Unlike previous Florida governors of both parties, who used their power under the Florida Constitution to suspend elected officials when they were charged with breaking the law, DeSantis has repeatedly removed elected officials for political and policy reasons.
Wednesday’s move — suspending Monique Worrell, the state attorney in Orange and Osceola counties — comes as DeSantis is looking to change the subject away from the turmoil that has engulfed his campaign for the Republican presidential nomination.
His presidential campaign team pushed out a series of talking points and other messages on social media touting what he’d done to Worrell, a Democrat who was elected in 2020 with 65.7% of the vote. “This is what we can expect under a DeSantis presidency,” Adam Laxalt, chair of Never Back Down, the super PAC supporting DeSantis, posted on social media.
As this report from Anthony Man for the South Florida Sun Sentinel notes, this is highly unusual behavior from a state governor. While it might make sense to eliminate corruption by ousting policy makers charged with crimes, the only reason to do what DeSantis is doing is to ensure no one but DeSantis makes the rules. That’s not democracy or even a state-level version of a constitutional republic. This is DeSantis paving the road to autocracy — hedging his bets in case the former Asshole-in-Chief decides to run again, despite facing multiple criminal charges himself.
Democracy means reaching across the aisle to make things better for all of the governed. Under DeSantis and others post-Trump, democracy has come to mean throwing bones to the worst of worst people casting votes — the ones who would rather see this country die than have to put up with anything they don’t like.
Need any more confirmation this isn’t just “government business as usual?” Here you go:
Republicans praised DeSantis’ latest move.
Appearing with DeSantis when he announced the decision in Tallahassee, state Attorney General Ashley Moody said “we’re fortunate to have a governor committed to both the rule of law and to holding elected officials accountable for doing the jobs that they swore to do.”
Moody, a Republican ally of DeSantis, said it wasn’t a political move. “ I commend Governor DeSantis for taking this brave step and ensuring that citizens of the Ninth Circuit have a prosecutor that puts their public safety as their very first agenda.”
Wayne Ivey, the Republican sheriff of Brevard County, joined Moody’s praise.
Everything seen here is performative. But that term undersells the danger it poses to the state and the republic beyond it. It’s one thing to do dumb stuff for the cheap applause of bigots. It’s quite another to engage in performative acts that have long-lasting repercussions far beyond the initial performance. The fact that only Republicans are willing to applaud this abuse of executive power says what DeSantis will never publicly admit: he wants to run a tinpot dictatorship in Florida and, if elected, do the same thing to the other 49 states.
What we’re seeing here are the actions of someone who doesn’t want to lead a democracy. He may be angling for the top job, but he’s indicated he’s only interested in serving certain constituents, rather than the entirety of the governed.
This sort of thing has been observed repeatedly in the former USSR (and Russia under Putin). It’s a purge. And from what we can see here, a presidential front-runner is making it clear he wants to replace the stars-and-stripes with whatever Florida’s equivalent of the hammer-and-sickle is: presumably an an alligator and bath salts.
I realize some commenters will read this post and complain (disingenously) that Techdirt has become “too political.” Hey, we didn’t elect the fools doing this shit. And beyond that, when I hear people complain that I’m too mean to Trump and those walking the path he paved with three-inch-lifts, all I really hear is people upset they’re no longer able to use the word “faggot” in public as freely as they used to.
If you want to defend autocratic acts by hateful people in power, at least have the honesty to admit you have a preference in boot polish flavor. Otherwise, maybe take a couple of moments to consider why you think the government should not longer be “for the people,” but rather an abusable set of options for the tin-pottiest politicians ever elected.
We’ve already covered how Florida man Governor Ron DeSantis flipped out that Disney, the largest employer in his state, offered some mild criticism over one of his unconstitutional censorship bills, and decided to retaliate by (1) removing the stupid questionable “theme park exemption” his office had directly worked with Disney to insert into his unconstitutional social media bill and (2) move to take control over the special board that that had been set up decades ago, giving Disney effective control over everything around Disney World.
Now, to be clear, the whole setup of what’s called the “Reedy Creek Improvement District” was quite sketchy. And there are plenty of legitimate reasons to do away with it. But doing good things for bad reasons is still bad, and when it’s done in retaliation for speech criticizing the governor, it’s unconstitutional.
Either way, DeSantis needs more culture war battles to constantly fight if he’s going to keep his name in the headlines for his 2024 Presidential hopes, so of course he was going to keep up with the plan. A month ago, DeSantis basically replaced all the members of the Reedy Creek board with his own lackeys.
But, in a move that will surprise absolutely no one who has been following Disney’s legal shenanigans for decades (i.e., anyone who follows copyright…), Disney’s lawyers don’t fuck around.
Earlier this week it came out that right before the handover in power, the old (Disney controlled) board effectively voted to strip itself of nearly all of its power… and to give it to Disney, effectively forever.
I mean, it’s evil, but also somewhat brilliant in its audacity.
And, while Team DeSantis is crying foul about how this was done in secret, it turns out that they held a public vote on the matter the day before DeSantis initiated his takeover. If DeSantis and friends had, you know, been actually paying attention, they might have noticed, rather than only finding out after being installed into an effectively empty, ceremonial role.
As Joe Patrice, over at Above the Law, notes, Disney’s lawyers are better than Ron DeSantis’ lawyers. And, part of it is in the way that they tried to make this transfer of power last: they say it will be “effective in perpetuity.”
But! One of those legal terms that gets thrown here and there more for being “legalistic sounding” rather than something that actually comes up all that often is the “rule against perpetuities” which is pretty much what it says on the tin: says you can’t create a perpetual interest in property that outlives anyone living at the time of the deal. Wikipedia’s summary is actually pretty good here:
The rule against perpetuities is a legal rule in the common law that prevents people from using legal instruments (usually a deed or a will) to exert control over the ownership of private property for a time long beyond the lives of people living at the time the instrument was written. Specifically, the rule forbids a person from creating future interests (traditionally contingent remainders and executory interests) in property that would vest beyond 21 years after the lifetimes of those living at the time of creation of the interest, often expressed as a “life in being plus twenty-one years”. In essence, the rule prevents a person from putting qualifications and criteria in a deed or a will that would continue to affect the ownership of property long after he or she has died, a concept often referred to as control by the “dead hand” or “mortmain“.
The new agreement Disney cooked up more or less first tries to ignore that, but then says that if it comes up, the deal basically lasts right up until the latest date possible under the rule of perpetuities: 21 years after a relatively newborn infant dies. And… they chose all of the grandchildren of King Charles.
No. Really. It’s right there.
That says:
Term. This Declaration shall be deemed as of the Effective Date and continue to be effective in perpetuity unless all or certain portions of the provisions of this Declaration are expressly terminated as provided elsewhere herein; provided, however, that if the perpetual term of this Declaration is deemed to violate the “Rule Against Perpetuities,” or any similar law or rule, this Declaration shall continue in effect until twenty one (21) years after the death of the last survivor of the descendants of King Charles III, King of England living as of the date of this Declaration….
It’s a nice touch to cover all of Charles’ grandkids as a hedge in case any of them die young.
DeSantis is not happy about this, and you can actually understand why. I mean, this whole setup is bullshit. But, then again, so was his retaliation move. And the original Reedy Creek setup. All of it is bullshit. Up and down the stack.
There are no winners here, only assholes and losers.
But, it’s pretty rich to see DeSantis lose his mind over being outplayed like this.
Of course, this isn’t over yet. DeSantis’ lackey, Florida Attorney General Ashley Moody is already demanding records from the February 8th meeting where all this went down with no one noticing.
We have no love for Disney over here at Techdirt. The company has long been terrible and problematic, in part because of it’s ridiculously aggressive lawyering. This really seems like one of those situations where it would be nice if both of them could lose in the most embarrassing manner possible.
Still, all this makes me wonder what kind of bullshit Disney’s lawyers are going to pull on December 31st as the clock ticks down to Mickey Mouse entering the public domain…
Earlier this month we noted how a sleazy telecom and media giant smear campaign successfully derailed the FCC nomination of popular reformer Gigi Sohn, keeping the agency gridlocked (quite intentionally) without the voting majority to do much of anything deemed “controversial” by industry.
While the GOP and telecom giants deserve the lion’s share of the blame for Sohn’s derailed nomination (they want a feckless FCC that can’t hold AT&T and Comcast accountable for anything), there were also plenty of screw ups on the Democratic side and in the White House, where there’s also no shortage of folks without the courage or integrity to stand up to telecom lobbyists.
Biden’s White House nominated Sohn nine months late (that there was any delay at all was a surprise to one White House communications staffer I interacted with last year).
From there, Maria Cantwell repeatedly buckled to Republican calls for unnecessary, redundant show hearings. Chuck Schumer failed to whip the votes. Senators Masto, Kelly, and Manchin all ultimately buckled to bad faith industry attacks, preventing her from getting the 51 votes needed in the Senate. Sohn’s future colleagues at the FCC, Jessica Rosenworcel and Geoffrey Starks, couldn’t be bothered to offer a single instance of meaningful support as she faced down attacks, alone.
The whole thing was an embarrassing, corrupt mess, and a clear example of why government struggles to hire game-changing reformers, especially at major regulatory agencies. Yet via an anonymous quote in the Washington Post this week, some White House staffer apparently thought it would be a good idea to throw Sohn even further under the bus:
A White House official, who spoke on the condition of anonymity to discuss the nomination, said they “worked tirelessly to move Gigi’s nomination” and that at her hearings Sohn “had the chance to push back and dispel the misconceptions that dark money and influence were trafficking in.”
Except numerous sources have informed me that they did not “work tirelessly.” And it’s kind of a giant middle finger to Sohn to suggest that the onus for shaking off a massive, well-coordinated smear campaign rested entirely on her shoulders.
As Sohn notes to the Post, you’re limited as to what you can say publicly when facing such attacks, especially if you care about your personal safety as an LGBTQ+ person in the current political environment:
Sohn, who would have been the first openly gay FCC commissioner, said the implication in the articles were “clearly tied to QAnon themes about LGBTQ+ people as groomers, as perverts, as sex traffickers.” And she said she felt it put her and her loved ones at risk.
“That was the first time I felt like ‘Oh my god, this could really rile up some crazies to come to my house … and threaten me and my family,’” Sohn said.
Unlike the Lina Khan nomination to the FTC (which involved a prompt nomination and then shock promotion to Chair to pre-empt industry resistance), Sohn’s FCC nomination was nine months late — the biggest delay in FCC history. That provided the telecom and media industries, spooked by the Khan pick, ample runway to manufacture its ultimately successful propaganda campaign, which involved using various seedy nonprofits to falsely accuse Sohn of being a radical cop hating enemy of Hispanics and rural Americans.
The White House offered zero meaningful public messaging support of their nominee aimed at debunking any of this. Several sources have suggested to me that Sohn’s nomination could have likely succeeded if the White House had also applied more meaningful pressure on Senators Manchin, Masto, and Kelly (several of whom themselves parroted industry propaganda about Sohn). They didn’t.
That said, I also have been told that Biden personally strongly supported Sohn, prompting her to be re-nominated early this year after a contentious 2022. Even then, you never genuinely got the sense from anyone on the Democratic side that seating Sohn (or the FCC’s consumer protection authority more generally) was a meaningful priority of any kind.
That’s not just a problem for hot button issues like net neutrality. The FCC is at the heart of the White House’s plan to throw an historic $45 billion in new broadband subsidies at the nation’s digital divide. Without a functioning voting majority, the FCC can’t meaningfully hold monopolies accountable when they inevitably take subsidies for networks they fail to deliver. Or much of anything else.
Putting all of this on Sohn’s shoulders because she didn’t “push back and dispel the misconceptions” being seeded in a gullible press by telecom monopolies with unlimited budgets is a final fuck you footnote on one of the most embarrassing tech/telecom policy failures in modern history. This one will leave a mark, and sends a very clear message to popular, good faith reformers eyeing government posts.
Back in 2016, we noted how Florida utilities had resorted to creating fake consumer groups to try and scuttle legislation aimed at ramping up solar competition and adoption in the state. The tactic is generally used to create the illusion of support for shitty, anti-competitive policies, and it’s been a common tactic in the U.S. broadband industry for as long as I can remember.
Eugene, Oregon recently passed a new city ordinance that would require that all new residential construction in the city be fossil-fuel free (aka: utilizing more efficient heat pumps instead of oil or natural gas furnaces, or installing new electric stoves instead of gas stoves):
“We have seen a lot of evidence … that natural gas does not support healthy air quality for our children,” Councilor Lyndsie Leech told her colleagues just before the vote on February 6. By phasing out fossil fuels in new homes, she said the council was “building the city that we want to see in the future.” Eugene’s mayor signed the ban shortly after it passed, and it is expected to go into effect in June.
An estimated 90 counties or cities have pursued similar efforts. Unsurprisingly, traditional utilities aren’t exactly keen on this. But instead of debating the ordinance directly as themselves, gas utilities like NW Natural instead decided to create a fake consumer groups with names such as Eugene Residents for Energy Choice and Eugene for Energy Choice.
Eugene Residents for Energy Choice is taking advantage of a petition process that allows ordinances passed by the City Council to be put up for a vote by the public. If a petitioner can collect signatures from 6,460 Eugene residents within 30 days of an ordinance being signed by the mayor, that ordinance can be placed on a ballot referendum and sent to voters on the next election day, so long as it’s more than 90 days away.
“Why not force a vote on it?” sounds reasonable on its face, but it won’t be a fair, democratic fight. Should it make its way to a public vote, utilities trying to kill the ordinance will have a financial and tactical advantage over local environmental activists in “educating” the public via a massive misinformation campaign with an unlimited budget, while also throwing money at local policymakers:
Public records show that NW Natural contributed more than $51,400 to the petition committee just four days after Eugene city councilors passed the electrification policy, followed by another $600,000 less than a week later.
As a result, Eugene’s plan, originally slated to go live in June, won’t go live until this fall, assuming it survives at all. Again, giant utilities might have points to make on these issues, but the choice of trying to make them through fake consumer propaganda groups speaks loudly as to the quality of the argument, and the awareness of these companies’ own credibility.
This is a tactic that’s extremely popular among telecom monopolies fighting community owned and operated broadband networks. Usually under the pretense that taxpayer subsidy-slathered telecom monopolies are just super concerned about taxpayer waste. It often goes hand in hand with massive campaigns to flood regulators with bogus support from fake or dead Americans.
You can tell that nobody has much of an answer for this kind of sleazy bullshit because this is effectively the same tactic we wrote about five years ago in Florida. And it’s the same tactic we’ve written about for decades in telecom. It’s K Street propaganda on demand, designed to convince Americans to root against their best self interests, and it works in scuttling consensus and reform far better than most folks assume.
Yesterday, Karl wrote about the absolutely ridiculous situation in which the person perhaps most qualified to be an FCC commissioner, Gigi Sohn, had to withdraw her nomination, which had languished over nearly two years, mostly due to a bunch of absolute ridiculous bullshit lies from telecom and media giants who hated the idea of her being in that job. As someone who has known Sohn for well over a decade, the whole situation is infuriating. Almost all of the claims about her were ridiculous lies, or at least misleading. Anyone who knows her (even those opposed to her policy goals) recognizes that she’s smart, competent, knowledgeable, and focused on actually doing what’s best for the public. She is not, as some falsely framed her, some sort of “partisan” hack.
The whole thing is incredibly frustrating.
It’s no surprise that the GOP united against her. They would do that for almost any nominee. But it’s sad that the telcos and cablecos were able to convince enough Democrats to go along with it, and that it never really seemed like there was a strategy from the administration to get her approved.
Either way, Karl posted just an excerpt of Gigi’s statement, but I think it’s worth people reading the whole thing, so we’re posting it here. Gigi has spent decades literally fighting to make the internet better for you and for me, and not for giant companies. Her withdrawing from this process is a loss for all of us.
Last night after discussions with my family and careful consideration, I made the decision to ask
President Biden to withdraw my nomination to the Federal Communications Commission. When
I accepted his nomination over sixteen months ago, I could not have imagined that legions of
cable and media industry lobbyists, their bought-and-paid-for surrogates, and dark money
political groups with bottomless pockets would distort my over 30-year history as a consumer
advocate into an absurd caricature of blatant lies. The unrelenting, dishonest and cruel attacks
on my character and my career as an advocate for the public interest have taken an enormous
toll on me and my family.
Unfortunately, the American people are the real losers here. The FCC deadlock, now over two
years long, will remain so for a long time. As someone who has advocated for my entire career
for affordable, accessible broadband for every American, it is ironic that the 2-2 FCC will remain
sidelined at the most consequential opportunity for broadband in our lifetimes. This means that
your broadband will be more expensive for lack of competition, minority and underrepresented
voices will be marginalized, and your private information will continue to be used and sold at
the whim of your broadband provider. It means that the FCC will not have a majority to adopt
strong rules which ensure that everyone has nondiscriminatory access to broadband, regardless
of who they are or where they live, and that low income students will continue to be forced to
do their school work sitting outside of Taco Bell because universal service funds can’t be used
for broadband in their homes. And it means that many rural Americans will continue the long
wait for broadband because the FCC can’t fix its Universal Service programs.
It is a sad day for our country and our democracy when dominant industries, with assistance
from unlimited dark money, get to choose their regulators. And with the help of their friends in
the Senate, the powerful cable and media companies have done just that.
I want to thank President Biden for his faith in me and for my champions in the Senate who
defended me at every turn. I especially want to thank the dozens of people who volunteered
their time and energy to help me through this process, as well as the over 400 organizations,
companies and trade associations, and hundreds of thousands of individuals who registered
their support with the Senate. I will forever be grateful for their efforts on my behalf.
I hope the President swiftly nominates an individual who puts the American people first over all
other interests. The country deserves nothing less.
