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Mike Masnick

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Mike is the founder and CEO of Floor64 and editor of the Techdirt blog.

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Posted on Techdirt - 5 July 2022 @ 01:41pm

Data Protection Laws Prevent Recording Industry From Sending Pirate Warning Letters

An increasingly important theme around here is how various laws to regulate the internet are often in conflict with each other. Privacy law is leading to less competition, for example. And from TorrentFreak, we have another, somewhat amusing example. The incredibly aggressive Dutch anti-piracy group BREIN has yet another hare-brained scheme to try to prevent copyright infringement: forcing ISPs to send threatening letters to those accused of large scale infringement.

However, the large Dutch ISP, Ziggo, (which has a long history of protecting user rights) went to court to argue that it cannot pass along the warning letters, as it would be a violation of the GDPR. And the courts have now agreed.

This time, a Ziggo subscriber was accused of offering over 200 e-books to the public through an open directory. BREIN hoped that the ISP would forward a notice to the associated account holder or share their personal details.

This week, the Utrecht court ruled that the ISP is not required to cooperate with this request. Without a license from the Dutch Data Protection Authority, linking the IP-address to the subscriber information would violate privacy law. For the same reason, it can’t share the subscriber details directly with BREIN either.

Even if Ziggo was allowed to process the data, BREIN wouldn’t have won the case. The court concluded that there’s insufficient evidence to show that the subscriber willingly made the books available for others to download. It’s possible that they were simply put online for personal use, without proper protection.

“Contrary to what BREIN states, it is not certain that the IP address holder himself has infringed copyrights,” the court writes in a press release.

There’s something quite amusing here, of course, since the legacy entertainment industry always seems to pop up in support of these kinds of laws, in the belief that it will somehow harm their mortal enemies in the internet industry…

Posted on Techdirt - 5 July 2022 @ 09:31am

How The Dobbs Decision Will Lead To Attacks On Free Speech; Or, Why Democrats Need To Stop Undermining Free Speech

We’ve talked about the unfortunate bipartisan attacks on free speech, which are best understood as attempts to control the narrative. Republicans have been attacking free speech in multiple ways — from trying to ban books and take away teacher autonomy to trying to compel websites to host content against their will. Democrats, on the flip side, have focused on ridiculous attempts to force websites to monitor and control speech. Both of these are bad in their own ways and both are attacks on free speech. In both cases, they seem to be about trying to force others to view the world the same way they do, and that’s the whole reason that we have the 1st Amendment around: to prevent that sort of nonsense.

This post is mainly targeted at those among you who support the Democrats’ position that we need to hold companies liable for the speech of their users. We’ve seen bills at both the federal and the state levels, trying to force companies to take down certain speech. And when people point out the 1st Amendment problems with these bills, we often hear some nonsense in response about “fire in a crowded theater.”

But, in a post Dobbs world, this shit is a lot more serious, and Democrats providing justification for outright government-backed censorship is a real problem. Senator Ron Wyden highlighted this just before the Dobbs decision came out, noting that Republicans who successfully got Roe v. Wade overturned were absolutely coming for websites and speech next. Here’s what Wyden wrote:

In coming months well-funded anti-choice extremists will launch a coordinated campaign to deluge websites and social media companies with lawsuits over user speech in Republican-led states where just seeking information about an abortion could become illegal. Just as anti-abortion activists worked to attack reproductive rights in statehouses across the nation, these fundamentalists will use the same playbook of coordinated laws and legal actions against the online speech of those they dislike. They’ve already targeted libraries and bookstores over LGBTQ books and classified health care for trans youths as child abuse.

You could say he was prescient. Or you could just say that he was observing the obvious next steps. And, now that Dobbs is here, exactly what he predicted seems likely to be happening. As the NY Times pointed out, one of the next big fights over abortion may be over the 1st Amendment. Specifically, that article highlights that just shortly before the Dobbs decision came down, the National Right to Life Committee released a “model” state law for a post-Roe world that directly aims to criminalize speech online:

A top anti-abortion lobbying group, the National Right to Life Committee, recently proposed model legislation for states that would make it a crime to pass along information “by telephone, the internet or any other medium of communication” that is used to terminate a pregnancy.

Many states essentially did just that before Roe v. Wade was decided in 1973. And it is not clear whether courts will find that the protections afforded to speech in the Constitution still apply to abortion rights supporters as they look to circumvent the raft of new restrictions.

And, as Ashton Lattimore points out at Prism, such laws would put all sorts of free speech concepts at risk:

In the United States, there’s a long history of efforts to silence information concerned with the rights of marginalized people, and that’s always included the work of journalists. In the 19th century, for example, Congress passed a “gag rule” to prevent abolitionists from petitioning against slavery, and southern states passed laws that outlawed anti-slavery speech entirely. Critically, both historically and today, speech suppression laws not only hand bad-faith actors the tools of criminalization and fines to silence those they disagree with, but they can also normalize physical violence. Indeed, violence against journalists was widespread in the 19th century, and—crucially—not confined to the places where such anti-slavery speech was criminalized: In 1837, a pro-slavery mob killed abolitionist newspaperman Elijah Lovejoy and destroyed his printing press in the “free” state of Illinois, while the following year in Philadelphia, a similarly-minded mob burnt down the abolitionist meeting space Pennsylvania Hall, which also housed the offices of abolitionist newspaper The Pennsylvania Freeman. Even after slavery was abolished, journalists faced constant threats to their safety for daring to accurately report on injustices like lynching, foremost among them being Ida B. Wells. And even in the present day, it’s clear that speech-suppressive laws are part of a larger constellation of practices that embolden violence against the groups they target. Witness the spate of anti-gay and anti-trans violence in the wake of Florida’s “Don’t Say Gay” law, and the primarily Black and brown teachers who’ve faced harassment, violence, and even death threats following “anti-CRT” suppression of discussions about racial injustice in American society. Now, with a law specifically targeting abortion-related speech, the risks are especially dire since so many of the journalists leading the way on reproductive rights and justice reporting are women of color, who already face disproportionate harassment. 

While there are many potential problems with this model law, the attack on speech shows up here, making it against the law to:

knowingly or intentionally hosting or maintaining an internet website, providing access to an internet website, or providing an internet service, purposefully directed to a pregnant woman who is a resident of this state, that provides information on how to obtain an illegal abortion, knowing that the information will be used, or is reasonably likely to be used, for an illegal abortions;

That would be a direct attack on free speech and the 1st Amendment. And, normally I’d say that it’s unlikely that courts would allow this. But, seeing how this particular arrangement of Justices seems willing to bend over backwards to justify absolute nonsense to remove rights — especially around abortion — it’s not difficult to imagine the Supreme Court magically finding the “exception” it needs to make these kinds of laws constitutional.

And, for what it’s worth, South Carolina has already introduced legislation that is modeled on this bill, and which would seek to punish websites. Other states are almost certainly going to follow.

And this is why Democrats need to stop handing Republicans the exact ammunition they need to attack free speech like this. I won’t even bother asking where the “oh, cancel culture is the biggest threat to free speech” people to speak up here because we all know they won’t.

But, Democrats who have been whining about “misinformation” and how social media has to be more aggressive censors, or who trot out the “fire in a crowded theater” line are simply playing into the censors hands here. They’re opening the door to this kind of nonsense and effectively justifying it.

Evan Greer and Lia Holland from Fight for the Future have an excellent companion piece to the Wyden piece above, noting that Section 230 is the last line of defense for abortion speech online. Democrats who are still attacking Section 230 today (including President Biden) are simply handing Republicans the tools they need to enable laws like the NLRC one above to criminalize speech.

Section 230 is the last line of defense keeping reproductive health care support, information, and fundraising online. Under Section 230, internet platforms that host and moderate user-generated content cannot generally be sued for that content. Section 230 is not absolute. It does not provide immunity if the platform develops or creates the content, and it does not provide immunity from the enforcement of federal criminal laws. But, crucially, it does protect against criminal liability from state laws.

This means that as Section 230 exists today, a lawsuit from an anti-abortion group concerning speech about reproductive health care or a criminal proceeding launched by a forced-birth state attorney general would be quickly dismissed. If Section 230 is weakened, online platforms like GoFundMe and Twitter, web hosting services, and payment processors like PayPal and Venmo will face a debilitating and expensive onslaught of state law enforcement actions and civil lawsuits claiming they are violating state laws. Even if these lawsuits ultimately fail, without Section 230 as a defense to get them dismissed quickly they will become enormously expensive, even for the largest platforms.

Forced-birth extremists are litigious, well resourced, and ideologically motivated. Tech companies care about making money. Rather than spending tens of millions fighting in court, many online platforms will instead “race to the bottom” and comply with the most restrictive state laws. They’ll change their own rules on what they allow, massively restricting access to information about abortion. 

But, incredibly, the message doesn’t seem to be getting through. Just this week, I received an angry hate mail from someone who insisted that my support for free speech was the real problem, and that it enabled disinformation online. But history has shown that government suppression of speech ends up silencing the marginalized and the powerless. And we see that with the NLRC model bill.

Free speech is essential at this time. Section 230 protects websites from the kinds of lawsuits that the NLRC bill would use to flood the system, and it’s why it’s so crucial that it remain in place. Removing it, and allowing states to pass laws putting liability on websites for speech the states don’t like is bad no matter who is doing it. One hopes that at least someone within the Democratic party has enough sense to look at this model bill and realize that their own party’s position is likely to make that more possible.

Posted on Techdirt - 1 July 2022 @ 01:35pm

Congress And The SEC Are Getting Basically Everything Wrong In Trying To Respond To ‘Meme Stocks’

As you’ll recall, a year and a half ago, much of the world who didn’t live on the WallStreetBets forum were introduced to the concept of meme stocks. As we discussed at the time, much of the embrace of such stocks by retail investors was really about people who were fed up with feeling like the entire financial system was rigged against them, and in favor of those already rich and powerful. The underlying concept that drove much of the meme stock effort was about every day investors trying to assert some pushback on the underlying system.

That’s not to say that the meme stocks worked out well for everyone. Plenty of people did lose money, because that’s part of the nature of investing. There’s an underlying myth that the entirety of meme stock investing was about ignorant investors doing silly things, but doing so en masse to effectively counter for their own ignorance. And, surely, there were some retail investors who just went along for the ride, for the lolz, or whatever. But especially with the original meme stock, GameStop, the core of that deal was a retail investor who had done a ton of research, had a real game plan, and a real argument for why the stock was undervalued.

Ever since then, however, there’s been scrambling by “the system” to deal with “the problem” of meme stocks. And, yes, there are a lot of questionable underlying assumptions that meme stocks are, indeed, a problem. A few weeks ago, the SEC launched its very, very weird response to the whole meme stock thing by trying to create a meme of its own, with a very, very cringeworthy video called Investomania.

So… a few comments on this. First off, encouraging anyone who is looking to invest to do some research is a reasonable enough message on its own, but this is the exact wrong way to deliver this message. The people who are into meme stocks quite reasonably mocked the SEC mercilessly for this nonsense.

And, yes, I’m sure you can piece together the sad logic by SEC folks that resulted in them taking this approach: these are meme stocks, so the people who are interested in them like memes, so let’s create a meme! That’ll do it!

But, again, that totally misunderstands what’s going on here. The general focus of the meme stock world is sticking it to the system that is rigged against them. The SEC is the system. The SEC is the Man. Having the system you’re trying to stick it to, then turn around and suggest that everyone investing in meme stocks is an idiot who doesn’t do research not only gets the message wrong, it targets the message in exactly the wrong way.

The Man can’t meme about why those trying to stick it to the man shouldn’t fall for meme stocks.

Yes, people investing in stocks should do research, and you’re very likely to lose a lot of money just chasing after dumb ideas, but this video is not actually targeting the people who just go along for the ride, but rather the people who are doing their research and are trying to make a difference against the underlying rigged system — while the SEC seems to be pretending that the system is fine, it’s just you stupid retail investors who are the problem.

And… now it’s getting worse, because Congress is getting involved.

The U.S. House Committee on Financial Services on Friday called for the SEC, along with other regulators, to do more to protect the markets from similar events.

The impetus for change came from the so-called “Reddit rally” of January 2021, in which GameStop Corp and other “meme stocks” popular on social media surged to extreme highs on buying from investors trading heavily through Robinhood and other commission-free retail brokerages.

The intense volatility led to big losses for hedge funds that had bet against the meme stocks.

Notice the language here. “Protect the markets.” Because it was “the markets” that suffered? No, as later noted, it was some hedge funds that had bet against these stocks that lost. They don’t need to be protected.

All this kind of thing does is make people even more sure the system itself is rigged against the everday retail investor.

Now, there are reasonable concerns that the SEC has about “payment for order flow” and how that creates potentially questionable incentives for firms like Robinhood, which really pioneered the zero commission trade setup after realizing that they could just sell their deal flow through Citadel, allowing that firm to pre-run the market. The main issue there is that companies like Robinhood get paid more for a larger order flow, which gives them incentive to, in turn, encourage retail investors to trade more.

But, it’s reasonable to be skeptical about whether the SEC’s and Congress’ actual concerns are about systems that may encourage retail investors to trade too much… or if it’s really about “protecting the market” in the form of protecting the hedge funds that lost a bunch of money.

Posted on Techdirt - 1 July 2022 @ 10:46am

Devin Nunes Loses Yet Another SLAPP Suit, This Time In California

Devin Nunes’ campaign to intimidate and silence his critics with a flood of SLAPP suits has hit another stumbling block. While he and his lawyer, Steven Biss, had mostly avoided filing lawsuits in states with strong anti-SLAPP laws, including his “home” state of California, for some reason in the fall of 2020 he sued Twitter and someone named Benjamin Meredith in California state court.

The lawsuit implied that Meredith was connected to the @DevinCow account that has vexed Nunes for so long. From the initial complaint:

Meredith controls multiple anonymous Twitter accounts that he uses multiple times daily to viciously attack Plaintiff. With Twitter’s knowledge and direct participation, Meredith in violation of § 1708.7 of the California Civil Code has used Twitter in the past two years to deploy thousands of incendiary and hateful comments with the intent to injure, alarm, harass, dox and intimidate Plaintiff.

A somewhat bizarre part of the lawsuit is the claim that while Meredith himself is not behind the @DevinCow account, he may be married to the person behind the account. This may be tough to follow because none of it makes much sense, but Nunes filed a declaration (this all starts on page 110 of the massive document removing the case to federal court) in the lawsuit saying that his attorneys connected Meredith to the @DevinCow account by finding a WordPress blog that showed a tweet that simply claimed (with no evidence) the name of the person they believed was behind the DevinCow account, and naming her (locked) Twitter account. That account had a bio description that read “Mom, wife, therapist, dog friend.”

Nunes’ declaration then states that his lawyers searched and found another Twitter account with the same bio — “Mom, wife, therapist, dog friend” — belonging to Meredith’s wife. If this all seems like quite a stretch, well… yeah.

There were two main claims in the case: stalking and common law commercial misappropriation (because of products mocking Nunes). Early on in the case, Nunes dropped Twitter from the lawsuit. Meredith removed the lawsuit to federal court and filed an anti-SLAPP motion under California’s anti-SLAPP law.

And, well, let’s just say that Judge Jennifer Thurston is not the first judge who is less than impressed by a Biss/Nunes production dismissing the complaint under California’s anti-SLAPP law. She does, however, allow Nunes the opportunity to file an amended complaint, so this is likely not over yet.

First up, the court finds that on the claims of cyberstalking, it all covers clearly protected speech, and speech that is in the public interest:

As Nunes himself explains, he is a United States Congressman, representing California’s 22nd Congressional District and serves as a Ranking Member of the House Permanent Select Committee on Intelligence. (Id. at 67.) “High profile individuals,” such as politicians and celebrities, are persons in the public eye and of public interest that typically receive “extensive media scrutiny.” Jackson, 10 Cal. App. 5th at 1254 (finding statements on social media regarding a celebrity’s various medical conditions and treatments are matters of public interest); see also Henley v. Jacobs, 2019 WL 8333524, at *9 (N.D. Cal. Aug. 2, 2019) (concluding statements regarding “competitors and politicians, unquestionably concern an ‘entity in the public eye’ on a matter of ‘widespread public interest’”).

Meredith’s commentary on Nunes as a political leader constitutes a topic of widespread public interest because “the right to speak on political matters is the quintessential subject of our constitutional protections.” Collier, 240 Cal. App. 4th at 52-53 (holding the registration of domain names for websites used to endorse and discuss political candidates was in furtherance of protected speech under the anti-SLAPP statute); Roberts v. Los Angeles Bar Assn., 105 Cal. App. 4th 604, 614 (2003) (internal quotations omitted) (“Public discussion about the qualifications of those who hold or wish to hold positions of public trust presents the strongest possible case for applications of the safeguards afforded by the First Amendment.”). Critiques of Nunes’s qualifications as political leader, such as statements about his criminal history, further underscore a public interest concern. Matson v. Dvorak, 40 Cal. App. 4th 539, 543, 548 (1995) (affirming trial court’s dismissal of a political candidate’s invasion of privacy claim where a flyer alleged the candidate owed hundreds of dollars to the police department for unpaid fines).

Nunes does not dispute that Meredith’s Tweets concern a widespread public interest or that he is in the public eye. Instead, Nunes broadly asserts that “[w]hen words are part of a pattern of stalking or harassing behavior, they do not constitute protected speech.” (Oppo. to Strike at 64.) Nunes provides no authority to support his assertion. Despite listing approximately three pages of case law, none offer any guidance to interpret the protections of California’s anti-SLAPP statute. (Id. at 64-66.) The vast majority of Nunes’s authorities originate from other jurisdictions, irrelevant to California law. (Id.) The few cases Nunes cited from the Ninth Circuit and California courts, do not involve challenges to the anti-SLAPP protections, but rather analyzed First Amendment protections to rebut stalking and harassment allegations. See, e.g., People v. Borelli, 77 Cal. App. 4th 703, 716 (2000); United Artists Corp. v. United Artist Studios, LLC, 2019 WL 6917918, at *10 (C.D. Cal. 2019). Nunes did not explain how the First Amendment protections apply to the analysis of step one under the anti-SLAPP statute. To the contrary, the California Legislature “did not limit the scope of the anti-SLAPP statute to activity protect by the constitutional rights of speech and petition. It went on to include ‘any act . . . in furtherance of’ those rights.” City of Montebello v. Vasquez, 1 Cal.5th 409, 421 (2016) (emphasis in original). Accordingly, when determining the scope of anti-SLAPP protections, courts must look to “the statutory definitions in section 425.16, subdivision (e),” not simply to First Amendment law. Id. at 422; see also Dean v. Friends of Pine Meadow, 21 Cal. App. 5th 91, 106 (2018) (citing Montebello, 1 Cal. 5th at 422) (“Montebello precludes plaintiffs from using substantive First Amendment principles to limit the scope of protection afforded by the anti-SLAPP law.”).

Nunes insists that he’s suing over conduct, not speech, but the court brushes that off, noting that:

Nunes again provides a lengthy list of inapplicable cases, by citing unpublished opinions4 from California courts. (Id. at 74-75.) Notably, the statute explicitly covers conduct not merely speech. See Cal. Civ. Proc. § 425.16(b) (emphasis added) (protecting “any act of that person in furtherance of the person’s right of petition or free speech”). Thus, Nunes has no authoritative rebuttal to the conclusion that the alleged behavior giving rise to his claims falls under the protected activity of the anti-SLAPP statute.

The court does note that it’s possible that Nunes could make a case for stalking under California law that would not be protected by the 1st Amendment… but failed to do so:

Nunes did not provide any corroborating evidence such to satisfy this element of the civil stalking statute. Despite alleging that Meredith posted thousands of statements disparaging and threatening Nunes on Twitter, a public and freely accessible platform, Nunes did not provide any of these allegedly offending posts to the Court. (See Doc. 1 at 14.) Nunes did not submit any communications or statements by Meredith to corroborate his allegation that Meredith posted thousands of Tweets disparaging Nunes.

Instead, the court notes, the only “evidence” Nunes provided actually “undermines rather than corroborates his claim.”

Specifically, the judge notes the weird attempt to connect the @DevinCow account to Meredith, and claiming it’s run by his wife. The court notes that Nunes claims that Meredith’s wife was tagged in many of Meredith’s tweets, but notably:

Nunes, however, did not submit any of these “innumerable” Tweets…

The court also notes that Nunes claims that Meredith is married to the person alleged to be behind the DevinCow account based on “Whitepages” but “likewise failed to provide this alleged evidence.”

But, more to the point, the court notes that the only actual evidence Nunes provided about this supposed harassment and stalking points to Meredith’s alleged wife, and not to Meredith himself.

While the 12(b)(6) standard requires the Court to take facts in the light favorable to the plaintiff and make reasonable inferences, it does not require the Court to make illogical leaps…. Accordingly, none of the documentary evidence provided by Nunes connects Meredith to the alleged harassment or stalking. Thus, Nunes has failed to sufficiently plead all explicit elements of stalking claim

This is the part that the judge allows Nunes to amend, but he would have to present some actual evidence this time to support the allegations.

As to Nunes’s stalking claim, if he can submit with his amended complaint, independent corroborating evidence to satisfy the statutory requirement under California Civil Code § 1708.7(a)(1), Nunes may sufficiently state a claim and a probability of success to overcome the anti-SLAPP motion at the motion to dismiss stage. Therefore, amendment as to the stalking claim would not be futile, and the Court GRANTS leave to amend claim one

The misappropriation claim, on the other hand, has no chance whatsoever.

The basic allegations forming Nunes’s claim indicate any alleged use of Nunes’s name or likeness bears on a public issue because Nunes is a politician in the public eye. (See Oppo. to Strike at 67-69; Mtn. Strike at 17- 18.) Regardless of any additional facts that Nunes may plead, his current allegations, accepted as true, revolve around Nunes’s role as a political figure. Any misappropriation of his identity or likeness in this context would fall into the public affairs exception under § 3344(d). Thus, amendment of additional facts would be futile to remedy Nunes’s commercial misappropriation claim.

So, this case seems to be on its last legs, but Biss and Nunes get at least one more shot at proving civil stalking.

Of course, should that fail, under California’s anti-SLAPP law, Nunes may be on the hook for Meredith’s legal fees.

Posted on Techdirt - 1 July 2022 @ 03:32am

Yet Another EU Data Protection Authority Says Google Analytics Violates The Law

It’s kind of weird that in some convoluted way, the NSA may be killing Google Analytics, at least in the EU. You may recall that back in 2020, Max Schrems won his second big data privacy effort against the EU/US Privacy Shield agreement, which allowed data from people in the EU to be transferred to US companies under certain conditions. The “Privacy Shield” was a concept the EU and US cooked up after their earlier setup, the EU/US “safe harbor” framework was tossed out in an earlier case brought by Schrems. In both cases, a key underlying issue was the NSA’s ability to conduct mass surveillance on the internet. The failure to fix that between the safe harbor framework and the Privacy Shield meant that the Privacy Shield was doomed from the start.

Earlier this year, the US and EU announced a new version of the Privacy Shield though details were still lacking. Assuming the NSA isn’t giving up its powers to surveil much of the internet, it doesn’t seem likely to survive Schrems’ next attempt.

In the meantime, though, it’s causing all sorts of issues. And many of those issues are basically: Google Analytics. Most recently, Italy’s data protection authority, said that using Google Analytics violates the GDPR by sending data overseas, something that can’t be done without a new Privacy Shield (or equivalent) agreement between the US and the EU.

As TechCrunch points out, this decision is just the latest in an increasingly long line of similar rulings:

Earlier this month, France’s data protection regulator issued updated guidance warning over illegal use of Google Analytics — following a similar finding of fault with a local website’s use of the software in February.

[…]

Austria’s DPA also upheld a similar complaint over a site’s use of Google Analytics in January.

While the European Parliament found itself in hot water over the same core issue at the start of the year.

Leaving aside the ongoing irony of the EU Parliament’s own website violating the GDPR, at the heart of all this remains: the NSA basically has screwed up Google Analytics for the EU.

Now, there are all sorts of reasons to dislike Google Analytics — we ditched it ourselves — but it’s important to remember that at the core of this, is the NSA basically making things impossible for a number of American internet companies. This is one of many reasons (and certainly lower in importance than just basic civil rights and liberties) why it’s still amazing that we’ve more or less allowed the NSA to continue its surveillance efforts with only minor modifications in the decade or so since Ed Snowden leaked the details.

Posted on Techdirt - 30 June 2022 @ 03:32pm

Google Gives In To Republican Political Spammers: Launching Pilot Program To Whitelist Them Out Of Spam

What a dumb news cycle. As we noted, mainly driven by the preferred political spam mongers for Republicans, a study from some computer scientists was completely misrepresented to argue (falsely) that Google was deliberately censoring Republican politician emails. As we’ve repeatedly noted, the study actually found that while a clean Gmail account would flag more Republican emails as spam than Democrats, (1) the reverse was true of the two other most popular web-based email providers, Yahoo and Outlook, and (2) the researchers found that if someone actively manages their spam flags, that this discrepancy disappears in Gmail.

But, Republicans and their favorite spammer can’t let facts or accuracy get in the way of a moral panic. So they got Fox News to spin it into a bullshit, inaccurate story about Google censoring conservatives, then got some Republicans to file a complaint with the Federal Election Commission arguing that this was an unfair advantage that Google was giving Democrats. Finally, they got an incredibly stupid bill introduced in both the House and the Senate to basically say that email providers can no longer mark political emails as spam.

Apparently, this stupid misleading culture war, that anyone with even the slightest understanding of how spam filters work could have debunked for anyone, was apparently gaining steam. And in this ridiculous world we live in, once “the narrative” takes over, facts and any sense of reality go right out the window.

So, just after Google CEO Sundar Pichai visited Capitol Hill, where he was apparently yelled at by a bunch of Republicans, Google has announced a “pilot program” to whitelist candidate emails. The program is not live yet, but Google has first asked the FEC for the greenlight, to make sure that this program doesn’t run afoul of any election laws.

Google’s pilot program, per the June 21 filing, would be for “authorized candidate committees, political party committees and leadership political action committees registered with the FEC.”

  • It would make campaign emails from such groups exempt from spam detection as long as they don’t violate Gmail’s policies around phishing, malware or illegal content.
  • Instead, when users would receive an email from a campaign for the first time, they would get a “prominent” notification asking if they want to keep receiving them, and would still have the ability to opt out of subsequent emails.

Basically, because a bunch of Republicans (1) are bad at political emails, (2) can’t take any personal responsibility at all, (3) love any kind of moral panic about big tech not liking them… we all now will have to deal with more political spam in our inboxes.

What a stupid world.

Posted on Techdirt - 30 June 2022 @ 12:03pm

Angry Crypto Firm Posts Weird Cease & Desist Letter To Its Own Blog; DMs It To Critics

You know things are going just great in crypto-land when a cryptocurrency company has to post a vague cease-and-desist letter to its own blog. Everything about this is bizarre, but it culminated in this very strange cease-and-desist blog post by Nexo.

There is a separate blog post that sort of, but not quite, tries to explain what’s going on, noting that a Twitter user has started to spread a false story about the company. And, indeed, Nexo makes a compelling case that the Twitter user “otteroooo” posted a blatantly false (and most likely defamatory — something I don’t say lightly) claim about Nexo’s co-founder, possibly confusing him (whether on purpose or not) with a very different individual who has a somewhat similar (but really not that close) name.

So, yes, sure, I can totally understand Nexo being mad. And I can totally understand and appreciate Nexo posting its compelling argument for why otterroooo’s claims are full of shit.

But… that still doesn’t explain posting a cease-and-desist to your blog. For that, you have to look elsewhere, and see that Nexo is apparently sending Direct Messages to people on social media when they retweet the otteroooo tweets, and (1) sharing with them the explanation blog post and (2) the cease-and-desist.

Except, even then, this doesn’t make much sense. The cease-and-desist is not specific (because, how can it be when it’s just out there for everyone) and completely overstates what is “unlawful.”

If they want to send a cease-and-desist letter to people spreading false information, there are ways to do that, but posting it to your blog seems like a way to call negative attention to yourself, and get you ridiculed, much more than it is likely to get anyone to cease or desist even if you have a decent argument for why people should cease and desist.

Posted on Techdirt - 30 June 2022 @ 09:28am

Philippines Orders Critical News Organization, Rappler, Shut Down; Just As Rappler’s Founder Argues Against Free Speech

We’ve written about Rappler, the very successful Filipino investigative news organization founded by reporter Maria Ressa, multiple times over the past few years. Rappler was very critical of the Rodrigo Duterte administration, but it’s reporting was solid. Back in 2018, the Filipino SEC announced that it was going to shut down Rappler, in a move that was clearly political retaliation for Rappler’s reporting.

What followed were a bunch of trumped up charges of tax evasion, cyberlibel, and some nonsense claiming that Rappler was violating the Philippines’ constitution by having foreign ownership. Rappler does not have foreign ownership. It received a grant from Omidyar Network, a philanthropic group that provides grants for lots of good work around the world. And, when that first happened, Rappler cleared it with the SEC and got it approved.

But… none of that seems to matter. Even with Duterte now leaving office, and Ferdinand “Bongbong” Marcos Jr. taking over, it doesn’t seem like there’s going to be much different. The SEC has ordered the company be shut down entirely, again over the supposed foreign ownership.

In an order released on Wednesday, the Philippine SEC “affirmed and reiterated its earlier finding” from 2018 that Rappler is a “mass media entity” and it had granted control to a foreign entity “through the Philippine Depositary Receipt issued to Omidyar Network.”

“Rappler and RHC willfully violated the constitution … when they granted Omidyar control,” the order said. “Considering the seriousness and gravity of the infraction, and that it was no less the constitution that was violated, this commission finds and so holds that the penalty of revocation … should be affirmed and sustained.”

It’s notable (as we pointed out four years ago when all this nonsense started) that the constitution in the Philippines includes protection for free speech, their 4th Amendment, that reads quite similarly to our 1st Amendment.

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

In the US, such a blatantly political shut down of a media organization would raise serious 1st Amendment issues. One would hope the same would be true in the Philippines.

Of course, one thing that’s somewhat ironic (or, perhaps, unfortunate is the better term) is that over the last few years, as Ressa has been fighting for her own free speech rights, she’s become increasingly hostile to the free speech rights of others. I’ve long respected Ressa for her fearless reporting work, but she’s become an outspoken critic of free speech online.

Just as the government was moving to shut down her company, Ressa gave an interview to Axios, where she basically trashed the free speech rights of the riff raff public, more or less arguing that people shouldn’t be allowed to speak on social media.

…these platforms are biased against facts. You don’t get facts. It’s toxic sludge. Social media encourages anger, hate, conspiracy theories. There’s violence….

She also trotted out a variation on the “fire in a theater” line, which is the would-be censor’s favorite line:

There’s a reason why, when news organizations were gatekeepers, we had standards and transparency. Free speech unchecked is like a person yelling fire and there’s not a fire. Free speech at all costs has costs.

This is really tragic. Rappler exists because the internet enabled it to exist. It allowed her to build up a truly world-class investigative reporting team that has done amazing work. And after spending all these years fighting the government trying to shut her down, you’d think she’d be more open to supporting the free speech of others, including the power of intermediaries to make it easier to speak.

Yes, some may argue that she’s highlighting nonsense that is posted on social media — but THAT’S EXACTLY how her critics trash her own work, by insisting that it’s all lies and nonsense, “full of falsehoods” and that gives them a justification to shut her down. It’s a shame that she’s so quick to support that line of reasoning that simply enables others in power to shut down critical voices.

Ressa doesn’t deserve what she’s been dragged through by her government. But, it would be nice if she recognized how she’s helping enable more such actions by justifying the silencing of speech.

Posted on Techdirt - 30 June 2022 @ 03:37am

Trump Doesn’t Want To Get Back On Twitter So Badly, He’s Appealing His Case To Get Back On Twitter

In April, Donald Trump insisted he had no interest whatsoever in getting back on Twitter (in response to questions about whether or not Elon Musk would allow him back, should he ever close his Twitter purchase). In May, Donald Trump lost his lawsuit trying to force Twitter to reinstate him. In June, Donald Trump (who again, insists he wouldn’t even go back to Twitter if he were allowed to) decided to appeal the loss in his lawsuit in order to try to force Twitter to reinstate him.

The fact that Donald Trump might state things contrary to the truth isn’t much of a surprise, of course. But at some point, you gotta wonder how much he wants to actually rack up legal bills for this nonsense victimization campaign.

To be honest, I was a bit surprised Trump jumped straight to appeal here. The district court judge had left it open for him to amend his complaint, and I figured Trump would take one more crack at that before jumping to appeal. However, maybe he’s feeling high because his hand-picked Supreme Court Justices have started to show less and less restraint in using their lifetime appointments to settle political grievances — so perhaps he feels the faster he can get in front of today’s SCOTUS, the better.

This case is a total loser, though, and it would take some seriously warped twisting of so much existing law, that even this court would likely find it difficult to force Twitter to reinstate Trump.

Posted on Techdirt - 29 June 2022 @ 03:27pm

Please Take A Moment To Celebrate How A Very Different Supreme Court Saved The Internet 25 Years Ago

The terrible, awful, no good, horrible plans to regulate the internet keep coming faster and furiouser these days. So, it’s worth remembering a time back when Congress passed one of the worst laws about the internet: the Communications Decency Act. Yes, these days we talk about the CDA more reverently, but that’s only because we’re talking about the one part of it that wasn’t declared unconstitutional: Section 230. Section 230, of course, was never even supposed to be a part of the CDA in the first place. It was crafted by then Representatives Chris Cox and Ron Wyden as an alternative approach to the ridiculousness that was coming out of Senator James Exon in the Senate.

But, you know, this is Congress, and rather than just do the right thing, it mashed the two approaches together in one bill and figured God or the courts would sort it out. And, thankfully, the courts did sort it out. Twenty-five years ago this week, the court decided Reno v. ACLU, dumped the entire CDA (minus Section 230) as blatantly unconstitutional, and, in effect, saved the internet.

Jared Schroeder and Jeff Kosseff wrote up a nice article about the 25th anniversary of the Reno decision that is well worth reading.

When faced with the first significant case about online expression, justices went in a completely different direction than Congress, using the Reno case to confer the highest level of protections on online expression.

The case started when a broad coalition of civil liberties groups, business interests, and others, including the American Civil Liberties Union, American Library Association, Planned Parenthood Federation of America, and Microsoft, sued. A three-judge panel in Philadelphia struck down much of the law, and the case quickly moved to the Supreme Court.

The federal government tried to justify these restrictions partly by pointing to a 1978 opinion in which the court allowed the FCC to sanction a radio station that broadcast George Carlin’s “seven dirty words.” Justices dismissed these arguments. They saw something different in the internet and rejected attempts to apply weaker First Amendment protections to the internet. Justices reasoned the new medium was fundamentally different from the scarce broadcast spectrum.

“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,” Justice John Paul Stevens wrote. “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.”

The article has a lot more details about the case, and why it’s still relevant. Also, how the messages from that ruling are still useful today as we are, once again, facing many attempts to regulate the internet.

The precedent’s relevance isn’t in the case’s dated facts or romanticized predictions. Its enduring value is in the idea the internet should generally be protected from government control. Without the Supreme Court’s lucid and fervent defense of online free speech, regulators, legislators, and judges could have more easily imposed their values on the internet.

There’s a lot more in that article, but go read it… on this very internet that would have been a very, very different place without that ruling.

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