banning apps – Techdirt (original) (raw)

from the it's-like-the-old-days dept

In a bizarre turn of events over the past few weeks, Spain’s high court ordered a ban on Telegram because some users (gasp!) used the tool to share copyright-protected content. The judge then suspended his own order a few days later after receiving a lot of criticism. Then, the judge asked the police to investigate the potential impact of such a ban on users. Confused? Welcome to the twisted world of copyright nonsense.

Sometimes it’s odd to me how basically every internet speech story in the first decade of the 2000s was really a story about copyright. And then, post-SOPA, there were still some copyright stories, but things focused more on other legal issues, such as Section 230 or now the DSA. That’s not to say that copyright’s impact on speech has gone away, because of course it has not. But it’s felt strange how it seemed to at least fade a bit towards the background.

Last week, though, we had a story that felt very much like a story from a decade or so ago: Spain’s high court ordered a ban of the entire (extremely popular) Telegram messaging app after four large Spanish media companies whined about people sharing infringing materials via the app.

Judge Santiago Pedraz agreed to temporarily ban the platform after four of the country’s main media groups – Mediaset, Atresmedia, Movistar and Egeda – complained that the app was disseminating content generated by them and protected by copyright without authorisation from the creators.

Access to the platform – which is the fourth most-used messaging service in the country – will be suspended from Monday but it was already being suppressed on certain mobile phone providers on Saturday.

Just a few days later, though, after there was widespread outrage and concern about banning an entire app and what that meant for free speech, the judge suspended his own order and asked the police to determine what the impact would be of the ban:

Pedraz has now halted the order and called for a police report to investigate the impact the temporary ban might have on users.

The whole thing is bizarre on multiple levels. As I discussed on last week’s Ctrl-Alt-Speech episode, there was a period of time when Spain seemed like the one country in the world that was recognizing how copyright law should work in the internet era, making it clear that the liability should land on actual infringers, not the tools they used. However, the US entertainment industry completely lost its collective mind over such a possibility and directly gave the Spanish government new copyright laws. Then, they got the US government to declare Spain a pirate nation in the Special 301 report and threaten sanctions.

So, in response, Spain passed a long series of increasingly draconian copyright laws, even as economists noted the harm they would do. But, the Spanish government admitted that they felt they needed to pass the laws to avoid more pressure from the U.S. And the laws have only gotten worse since then.

Blocking an entire app from the entire country because a few users are abusing it to share infringing content should obviously be seen as overkill. But, again, Spanish copyright law these days is weighted so heavily in favor of industry, it doesn’t even feel all that surprising.

Still, it seems bizarre for the Judge to then ask the police to investigate the potential impact of banning an app used by 8 million Spaniards, or approximately 20% of the country’s population. Isn’t it supposed to be the judge’s job to figure that out?

Anyway, the case is still going on, so it’s possible that Telegram will get banned again down the road. But just the fact that anyone is seriously thinking about banning an entire app because some people misuse it to infringe… just kinda takes us back to ridiculous copyright takes from the early 2000s.

Filed Under: banning apps, copyright, intermediary liability, spain
Companies: telegram

Senator Warner’s RESTRICT Act Is Designed To Create The Great Firewall Of America

from the we-become-what-we-fear dept

Earlier this month, we wrote about Mark Warner’s RESTRICT Act, mainly in the context of how it appeared to be kneejerk legislating in response to the moral panic around TikTok.

Despite the bill being out for a few weeks, over the last few days, some of the discussion around it has gone viral, in particular the claims that VPN users “risk a 20-year jail sentence” under the bill. Senator Warner’s office has brushed aside these concerns, while somewhat bizarrely admitting that the bill is really designed to be something of a bill of attainder against any foreign company Mark Warner doesn’t like.

“Under the terms of the bill, someone must be engaged in ‘sabotage or subversion’ of communications technology in the U.S., causing ‘catastrophic effects’ on U.S. critical infrastructure, or ‘interfering in, or altering the result’ of a federal election in order for criminal penalties to apply,” Warner’s communications director, Rachel Cohen, said.

“The bill is squarely aimed at companies like Kaspersky, Huawei and TikTok that create systemic risks to the United States’ national security, not individual users,” she clarified.

To be clear: there’s basically no way this bill is going to be used against a person using a VPN. That is an exaggeration and something of a misreading of the bill. But, holy shit, does the bill still have massive, massive problems. It represents a ridiculously dangerous weapon in the hands of any US Presidential administration.

As Elizabeth Nolan Brown at Reason rightly noted, the language is so stupidly vague and so broadly worded that the whole “jailtime for VPN users” can be read into it in a non-crazy way.

But even if we take Warner’s spokesperson at her word and grant the claim that it’s not going to be used to jail people for using a VPN, that doesn’t actually make the bill any better. It’s absolutely terrible and shows a lack of understanding about how any of this works.

Tragically, this is becoming all too common with Senator Warner who, when he was elected to the Senate in 2009, was touted as a Senator who actually understood technology, based on his career in the mobile phone industry. But, in reality, he’s never been a tech guy. He was a political guy who did a bunch of venture investing in the mobile phone arena. And his lack of understanding of how technology actually works is evident from basically every tech bill he’s introduced.

He was on the wrong side of the encryption issue, he’s on the wrong side on Section 230, and for a few years now has been pushing a disastrous and dangerous plan called the SAFE TECH Act, which is a full frontal attack on the open internet. For what it’s worth, he just recently reintroduced the SAFE TECH Act, and I’d been meaning to write about that, but there hasn’t been enough time since so much other stupid stuff is going on, including this nonsense around the RESTRICT Act.

The RESTRICT Act has similarities to the SAFE TECH Act, to the point that I wonder if it’s written by the same legislative aid. Both bills are ridiculously broadly worded in a manner that is inconsistent with reality. Just as the RESTRICT Act required staffers to come out and say “no, no, it doesn’t criminalized VPNs,” with the SAFE TECH Act, Warner staffers had to run around and insist that it didn’t take away Section 230 from any site with ads (even though the poorly worded legislation certainly could be read that way).

You’d think that this might lead Warner to be more careful, but he seems committed to the bit of writing stupidly broad, vaguely worded bills that would create a huge mess, and then attacking those who criticize those bills (this he has in common with Senator Blumenthal, who similarly is unwilling to consider that his own bills might be poorly drafted).

In the case of the RESTRICT Act, we’ve already highlighted that any attempt to ban TikTok almost certainly violates the 1st Amendment. Warner’s bill does little to try to address that, but gets around it by… giving unprecedented, ridiculous authority and power to whoever is in the White House, to effectively ban any technology or service they deem to pose “an unacceptable risk.”

As always, judge any such bill as to how it would be used by the worst President you can think of.

The vagueness in language is kind of stunning. The bill authorizes the Secretary of Commerce to “identify, deter, disrupt, prevent, prohibit, investigate, or otherwise mitigate” situations “to address any risk” where the Secretary alone decides that the technology “poses an undue risk” of a wide variety of things with vague and scary sounding terms around national security and critical infrastructure, but also including this fun catch-all at the end:

otherwise poses an undue or unacceptable risk to the national security of the United States or the safety of United States persons.

That’s a pretty big subjective standard.

And, while the bill says that the Secretary should publish an explanation of the decision, they’re also allowed to hide it by shouting “national security!” Which, you know, is already abused like crazy.

The bill also allows the President to “compel divestiture” of any company that is deemed to be such a risk.

There is nothing even remotely approaching due process or consideration of Constitutional rights. Basically every foreign country will look at this bill and immediately scream that it will be used and abused in a protectionist manner. Warner is kinda blatant about this as it literally lists out which industries he’s trying to protect.

The worries about the VPN come from the penalties part of the bill, which say:

It shall be unlawful for a person to violate, attempt to violate, conspire to violate, or cause a violation of any regulation, order, direction, mitigation measure, prohibition, or other authorization or directive issued under this Act, including any of the unlawful acts described in paragraph (2)

Paragraph 2 is so broadly worded (sense a pattern here?) that it includes a ban on “counseling” or “approving” “any act” to try to get around a ban put in place under this bill.

There’s a lot more, but let’s call this out for what it is: a law worded so broadly that it will allow any administration to effectively designate any foreign company as some sort of “undue risk” and ban it, with little to no due process, and with some of the details kept secret. Anyone who thinks that won’t be massively abused simply has not been paying attention.

It’s jingoistic, propagandistic, authoritarian nonsense.

Indeed, it’s the kind of thing that we highlight when authoritarian countries with dictatorial leaders put something like it in place, and abuse it to protect friendly companies and shut down criticism. As such, even the fact that Senator Warner introduced this bill will be used by China, India, Russia, Iran, and many other countries as justification for their own leaders banning foreign companies they dislike.

Some point out that those countries would do the same thing anyway, which is true, but when doing so at least we can point out how terrible it is and highlight how it goes against basic concepts like due process and freedom. But the US going down that same dangerous path just completely throws that out the window.

What the RESTRICT Act creates, in a massive overreaction to concerns about Chinese-based companies, is a system for the US to create its own Great Firewall. Our attempt at pushing back on China only serves to make the US more like China, and stupidly bless their repressive and illiberal approach to banning foreign companies.

Warner, in fact, more or less admits all of this in an interview he gave to Russell Brandom at Rest of World. Brandom highlights just how anti-open internet and illiberal all of this is, and Warner’s response is basically “but China made us do it”:

But for me, it comes back to the hypocrisy of the Chinese government. China has prohibited American apps like Facebook and Google from their market for years. The Chinese version of Twitter is completely censored by the Chinese government.

So, because China takes a dictatorial, authoritarian, illiberal approach to the internet, so must the US?

It’s the worst kind of lawmaking: a severe overreaction to a potentially legitimate concern (though with little actual evidence to support the nature and scope of that concern), combined with a ridiculously powerful, likely unconstitutional bill that puts tremendous power in the hands of the administration with few limits (there is some ability for Congress to push back, but that’s unlikely to matter if the White House and Congress are on the same moral panic page).

In a reasonable world, people across the political spectrum would call out this monstrosity for what it is: a dangerous attack on freedom and openness, and a deep, cynical embrace of exactly that which Warner claims to fear.

Filed Under: banning apps, china, commerce secretary, great firewall, mark warner, moral panic, overreaction, restrict act, safe tech act
Companies: tiktok

Pompeo Says US May Ban TikTok; It's Not Clear That It Can

from the or-should dept

New day, new nonsense. Secretary of State Mike Pompeo did his Pompeo thing and went on Fox News saying that the US is looking at banning apps from China in the US, with a focus on TikTok, the incredibly popular social media app that is owned by the Chinese firm ByteDance:

The United States is “looking at” banning Chinese social media apps, including TikTok, Secretary of State Mike Pompeo said Monday.

Pompeo suggested the possible move during an interview with Fox News’ Laura Ingraham, adding that “we’re taking this very seriously.”

Pompeo was asked by Ingraham whether the United States should be considering a ban on Chinese social media apps, “especially TikTok.”

“With respect to Chinese apps on people’s cell phones, I can assure you the United States will get this one right too, Laura,” he said. “I don’t want to get out in front of the President [Donald Trump], but it’s something we’re looking at.”

It’s difficult to know where to start on this, but let’s at least start by admitting that TikTok has some sketchy issues. We’ve talked about how its content moderation practices may be driven from Beijing’s moral stance (despite denials) and there were recent claims from someone associated with anonymous claiming to have reverse engineered TikTok, saying that it’s a security disaster (it’s not at all clear how accurate that is). At the same time, India just banned TikTok and other Chinese apps over security fears.

So there may be some legitimate concerns here, though a lot of that is based on innuendo and rumor rather than concrete evidence. And, again, we’ve seen this game before. The US spent years spreading security panic about Chinese networking equipment from companies like Huawei and ZTE, without ever actually proving any problems with the hardware (in fact, a massive US government investigation turned up nothing).

But, as we’ve noted, it’s often been difficult to tell where the complaints against Chinese networking hardware end, and where the lobbying from American telco equipment firms like Cisco begin, as there appears to be substantial overlap. There’s no evidence to say that’s true with this new story of an app ban, but it should be noted that Mark Zuckerberg is clearly very, very worried about TikTok, so the US banning the company that seems to be a favorite of the younger generation certainly wouldn’t be protested very much by Facebook.

That said, there are real legal questions about whether or not the US even could ban TikTok in the US. Under what law would they do so? While owned by ByteDance in China, TikTok has spent the last few years separating TikTok’s business from ByteDance, hiring a ton of people in the US and insisting that data from TikTok users is kept in the US (or Singapore) and not in China. ByteDance has also considered selling off TikTok to avoid these concerns.

So it seems incredibly likely that any effort to bar TikTok would raise a whole bunch of legal concerns — starting with a basic 1st Amendment concern. The US government can’t just say “you can’t use that social media app.” That may be how things work in China or India, but not in the US. And, of course, it would likely set off a chain reaction elsewhere as well. China already bans most major US apps and services, but we’re still dealing with a pointless trade war that would only be exacerbated by such a move.

There are plenty of reasons to be concerned about TikTok, it’s connections to China, and the security of the app. But none of that means that the US government has the right to just ban it. While Trump may want to pretend he’s a dictator, and Pompeo may want to pretend he works for a dictator, that’s not how any of this works.

Filed Under: apps, banning apps, china, mike pompeo, state department, tiktok
Companies: bytedance, tiktok