influencers – Techdirt (original) (raw)

California State Senator Pushes Bill To Remove Anonymity From Anyone Who Is Influential Online

from the someone-buy-padilla-a-'constitutional-lawmaking-for-dummies'-book dept

What the fuck is wrong with state lawmakers?

It seems that across the country, they cannot help but to introduce the absolute craziest, obviously unconstitutional bullshit, and seem shocked when people suggest the bills are bad.

The latest comes from California state Senator Steve Padilla, who recently proposed a ridiculous bill, SB 1228, to end anonymity for “influential” accounts on social media. (I saw some people online confusing him with Alex Padilla, who is the US Senator from California, but they’re different people.)

This bill would require a large online platform, as defined, to seek to verify the name, telephone number, and email address of an influential user, as defined, by a means chosen by the large online platform and would require the platform to seek to verify the identity of a highly influential user, as defined, by asking to review the highly influential user’s government-issued identification.

This bill would require a large online platform to note on the profile page of an influential or highly influential user, in type at least as large and as visible as the user’s name, whether the user has been authenticated pursuant to those provisions, as prescribed, and would require the platform to attach to any post of an influential or highly influential user a notation that would be understood by a reasonable person as indicating that the user is authenticated or unauthenticated, as prescribed.

First off, this is unconstitutional. The First Amendment has been (rightly) read to protect anonymity in most cases — especially regarding election-related information. That’s the whole point of McIntyre v. Ohio. It’s difficult to know what Padilla is thinking, especially given his blatant admission that this bill seeks to target speech regarding elections. There are exceptions to the right to be anonymous, but they are limited to pretty specific scenarios. Cases like Dendrite lay out a pretty strict test for de-anonymizing a person (while limited as a precedent, but adopted in other courts), and it has to only be after a plaintiff demonstrates to a court that the underlying speech is actionable under the law. And not, as in this bill, because the speech is “influential.”

Padilla’s bill recognizes none of that, and almost gleefully makes it clear that he is either ignorant of the legal precedents here, or he doesn’t care. As he lays out in his own press release about the bill, he wants platforms to “authenticate” users because he’s worried about misinformation online about elections (again, that’s exactly what the McIntyre case said you can’t target this way).

“Foreign adversaries hope to harness new and powerful technology to misinform and divide America this election cycle,” said Senator Steve Padilla. “Bad actors and foreign bots now have the ability to create fake videos and images and spread lies to millions at the touch of a button. We need to ensure our content platforms protect against the kind of malicious interference that we know is possible. Verifying the identities of accounts with large followings allows us to weed out those that seek to corrupt our information stream.”

That’s an understandable concern, but an unconstitutional remedy. Anonymous speech, especially political speech, is a hallmark of American freedom. Hell, the very Constitution that this law violates was adopted, in part, due to “influential” anonymous pamphlets.

The bill is weird in other ways as well. It seems to be trying to attack both anonymous influential users and AI-generated content in the same bill, and does so sloppily. It defines “influential users” as someone who where

“Content authored, created, or shared by the user has been seen by more than 25,000 users over the lifetime of the accounts that they control or administer on the platform.”

This is odd on multiple levels. First, “over the lifetime of the account,” would mean a ridiculously large number of accounts will, at some point in the future, reach that threshold. Basically, you make ONE SINGLE viral post, and the social media site has to get your data and you can no longer be anonymous. Second, does Senator Padilla really think it’s wise to require social media sites to have to track “lifetime” views of content? Because that could be a bit of a privacy nightmare.

And then it adds in a weird AI component. This also counts as an “influential user”:

Accounts controlled or administered by the user have posted or sent more than 1,000 pieces of content, whether text, images, audio, or video, that are found to be 90 percent or more likely to contain content generated by artificial intelligence, as assessed by the platform using state-of-the-art tools and techniques for detecting AI-generated content.

So, first, posting 1,000 pieces of AI-generated content hardly makes an account “influential.” There are plenty of AI-posting bots that have little to no followings. Why should they have to be “verified” by platforms? Second, I have a real problem with the whole “if ‘state-of-the-art tools’ identify your content as mostly AI, then you lose your rights to anonymity,” when there’s zero explanation of why, or whether or not these “state-of-the-art tools” are even reliable (hint: they’re not!). Has Padilla run an analysis of these tools?

There are higher thresholds that designate someone as “highly influential”: 100,000 lifetime user views and 5,000 potentially AI-created pieces of content. Under these terms, I would be legally designated “highly influential” on a few platforms (my parents will be so proud). But then, “large online platforms” would be required to “verify” the “influential users’” identity, including the user’s name, phone number, and email, and would be required to “seek” government-issued IDs from “highly influential” users.

There is no fucking way I’m giving ExTwitter my government ID, but under the bill, Elon Musk would be required to ask me for it. No offense, Senator Padilla, but I’m taking the state of California to court for violating my rights long before I ever hand my driver’s license over to Elon Musk at your demand.

While the bill only says that the platforms “shall seek” this info, it would then require them to add a tag “at least as large and as visible as the user’s name” to their profile designating them “authenticated” or “unauthenticated.”

It would then further require that any site allow users to block all content from “unauthenticated influential or highly influential” users.

It even gets down to the level of product management, in that it tells “large online platforms” how it has to handle showing content from “unauthenticated” influential users:

(1) A large online platform shall attach to any post of an influential or highly influential user a notation that would be understood by a reasonable person as indicating that the user is authenticated or unauthenticated.

(2) For a post from an unauthenticated influential or highly influential user, the notation required by paragraph (1) shall be visible for at least two seconds before the rest of the post is visible and then shall remain visible with the post.

Again, there is so much problematic about this bill. Anyone who knows anything about anonymity would know this is so far beyond what the Constitution allows, that it should be an embarrassment for Senator Padilla, who should pull this bill.

And, on top of anything else, this would become a massive target for anyone who wants to identify anonymous users. Companies are going to get hit with a ton of subpoenas or other legal demands for information on people, which they’ll have collected, because someone had a post go viral.

Senator Padilla should be required to read Jeff Kosseff’s excellent book, “The United States of Anonymous,” as penance, and to publish a book report that details the many ways in which his bill is an unconstitutional attack on free speech and anonymity.

Yes, it’s reasonable to be concerned about manipulation and a flood of AI content. But, we don’t throw out basic constitutional principles based on such concerns. Tragically, Senator Padilla failed at this basic test of constitutional civics.

Filed Under: 1st amendment, ai, anonymity, california, elections, influencers, steve padilla

from the we-know-who-you-are dept

Back in 2015, Techdirt wrote about one of China’s many attempts to control the online world, in this case by requiring everyone to use real names when they register for online services. As that post noted, the fact that the Chinese authorities had announced similar initiatives several times since 2003 suggests that implementing the policy was proving hard. Twenty years after those first attempts to root out anonymity online, China is still trying to tighten its grip. A post on the Rest of the World site reports:

On October 31, Weibo, as well as several other major Chinese social media platforms including WeChat, Douyin, Zhihu, Xiaohongshu, and Kuaishou, announced that they now required popular users’ legal names to be made visible to the public. Weibo stated in a public post that the new rule would first apply to all users with over 1 million followers, then to those with over 500,000.

As that indicates, there’s a new wrinkle in the fight against anonymity: real names are only required for top influencers on the main social media sites. That’s obviously much easier to police than trying to force hundreds of millions of users to comply. Here’s why the Chinese government is concentrating on the smaller group:

Min Jiang, a professor of communication studies at the University of North Carolina at Charlotte, told Rest of World the real-name rule would limit the influence of key opinion leaders, who still wield a lot of power on the Chinese internet. “Outspoken individuals have been conditioned to navigate the red line with ingenuity and creativity, steering public opinions even under heavy censorship,” she said.

The new targeted approach seems to be working. Several high-profile influencers who use pseudonyms online have announced that they will give up posting altogether. Others are actively “purging” their fans to get the total below the one million threshold for the new policy:

Tianjin Stock King, who posts finance content, removed over 6 million followers overnight, cutting his following from 7 million to just over 900,000. Ken, another Weibo “Big V,” told Rest of World he used the extension Cyber Zombie Cleaner to remove about 20,000 followers over the past month. The software, developed by software engineer Xiao Gu, enables users to remove inactive followers in large numbers, and has accumulated over 100,000 views on China’s code-sharing forum, CSDN.

Interestingly, the Rest of the World post says that it is not government repression that those with big followings fear under the new rules. Previous policies regulating anonymity already require Weibo users to register with their real name, and to show their IP location next to their user name. But mandating real names online means that influencers will be subject to the scrutiny of other users, who will be able to compare a person’s online activity with their offline identity. Conveniently for the Chinese authorities, that will make it more difficult to express controversial opinions. One group who are likely to be particularly affected by this requirement are influencers working at state-affiliated organizations, who may be accused of disloyalty or lack of patriotism once their identity is known to the wider public.

_Follow me @glynmoody on Mastodon.

Filed Under: anonymity, china, influencers, purging, real names, social media
Companies: douyin, kuaishou, tiktok, weibo, xiaohongshu, zhihu

Another Day, Another SLAPP Threat From A ‘Wellness’ Influencer Against Someone Reviewing Their ‘Masterclass’

from the you-mean-your-essential-oils-don't-protect-you-from-valid-criticism? dept

A few years back we had an article about the “The Green Smoothie Girl” aka Robyn Openshaw, who went on this weird SLAPPy binge of threatening people who left negative reviews of her brand of woo woo nonsense. Apparently since that time, Openshaw went down the unsurprising path of being a COVID anti-vaxxer (natch) and more recently had to admit to having lied about having a Ph.D.

Anyway… over on exTwitter, the account @this_is_mallory has been reporting on/debunking misinformation being spread by “wellness influencers.” On Friday Mallory pointed out that someone going by the name of “Samantha Lotus” who claims to be a “Holistic Master Coach and Human Optimization Specialist” was claiming that optometrists are lying to you and you don’t need glasses.

(FWIW, claims about eye exercises preventing the need for glasses go way back — I remember seeing it get a surge of interest about 20 years ago, and even remember getting a book out of the library to read about it. But the science on it is… weak. There are many extreme claims that have not been backed up by randomized trials, and the general consensus is that if (big if) they help at all, they may only help to delay the need for glasses/contacts in a few cases, but won’t actually help with the vast majority of the causes of needing corrective lenses).

Either way, Malory decided to spend her Saturday watching Samantha Lotus’s “Vision Healing Masterclass,” in which she’s supposed to learn how to ditch her glasses, for which she paid $11. And, of course, she decided to share her experience online.

The thread is long, and well done. It’s funny and calls out a lot of nonsense. Here’s a quick snippet of a couple of the tweets:

Apparently, having bad eyesight is just a state of mind!

It goes on. There’s a lot of the, well, typical “holistic wellness” nonsense, before it apparently turns into something of an advertisement for some “essential oils” company called “DoTerra,” (lol) which Mallory suggests may have been the real point of this all along.

Anyway, it’s a pretty long and somewhat damning thread, with a bunch of screenshots and a few short videos, all with lots and lots of commentary, critique, and criticism.

Still, the thread went viral, and then the media picked up on it as well. Daily Beast had a story about it. Daily Dot had a story about it. And, apparently, Samantha Lotus was none too pleased about it.

None of the stuff above would turn this into a Techdirt story. What does turn this into a Techdirt story is this:

That’s Samantha saying that she’s going to be “addressing MALLORY by my lawyers for her intellectual property infringements and defamation.” Now, I’ve gone through the whole damn thread and there’s nothing that comes even remotely close to a copyright violation or defamation. This is a blatant SLAPP threat to try to silence Mallory.

She also sent Mallory a more direct threat, though if it was legit, it would have come from a lawyer, not herself (same thing that happened with the Green Smoothie Girl.”

From there, Samantha Lotus got super icky and stalkery. Mallory reported that Lotus found Mallory’s private Facebook account, as well as her private Instagram account, where she noted that they have some mutual friends. Oh, and also her LinkedIn.

Now, the one complicating factor is that it’s possible both Mallory and Samantha are in Canada (Mallory definitely is, and while Samantha took down her website Sunday evening, her YouTube also says her location is Canada). Canada’s protections for speech are… not nearly as strong as the US’s are. Still, I spoke with a Canadian copyright lawyer who said this likely would still pass the “fair dealing” standard in Canada, even though it’s somewhat weaker than the US’s fair use.

Defamation law in Canada is also dumber than in the US (Canada explicitly rejected a US “actual malice” standard), but it’s not as bad as in the UK or Australia. Truth is a defense, as is “fair comment.” But a defamation case is more burdensome on defendants in Canada than in the US. So, SLAPP suits can be much more effective.

British Columbia (where Mallory appears to live) recently got an anti-SLAPP law, which might also help protect Mallory, should Samantha Lotus actually get a lawyer to act. Just a few months ago, Canada’s Supreme Court actually ruled in favor of a defamation case being dismissed under BC’s anti-SLAPP law, which also bodes well for Mallory.

Anyway, if seeing clearly is merely a state of mind, one hopes that Samantha Lotus might try to sit quietly, apply some essential oils, and… consider that maybe threatening to sue someone and getting all stalkery on them might, just possibly, attract a bit more negative attention to your woo woo nonsense peddling “masterclass.”

Filed Under: canada, copyright, corrective lenses, criticism, defamation, eyesight, fair dealing, free speech, influencers, samantha lotus, slapp, wellness

Google Strikes $9.4 Million Settlement With FTC For Paying DJs And Influencers To Praise Phones They Never Touched

from the artificial-enthusiasm dept

Fri, Dec 2nd 2022 01:54pm - Karl Bode

The FTC and four state attorneys general this week struck a $9.4 million settlement with Google over allegations that Google covertly paid celebrities money to promote a phone none of them had ever used.

The FTC’s announcement states that the agency had previously filed suit against Google and iHeartMedia for airing nearly 29,000 deceptive endorsements by radio personalities and influencers, promoting their use of and experience with Google’s Pixel 4 phone in 2019 and 2020. The FTC and state AGs said the DJs and influencers had never actually so much as touched the phones, violating truth in advertising rules:

“It is common sense that people put more stock in first-hand experiences. Consumers expect radio advertisements to be truthful and transparent about products, not misleading with fake endorsements,” said Massachusetts Attorney General Maura Healey. “Today’s settlement holds Google and iHeart accountable for this deceptive ad campaign and ensures compliance with state and federal law moving forward.”

Of course, this kind of obscured financial relationship is happening constantly, especially in the influencer space. But like most U.S. regulators, the FTC lacks the staff, finances, or overall resources to police this stuff with any meaningful consistency. So instead, they occasionally fire a warning shot over the bow of the biggest and worst offenders, in the hopes that it scares others into behaving.

The Pixel 4 is a three-generation old phone, so, as usual, any regulatory action on this kind of stuff happens pretty late, if it happens at all. It sounds like Google would have been fine if it had just had the influencers more generally imply that they loved the phone, and it was the phony first-person endorsements that got Google and iHeartMedia in trouble.

More generally, poorly or non-disclosed influencer marketing arrangements are everywhere, and the FTC’s simply too inundated with other responsibilities to take aim at the problem with any real consistency. Still, the agency issued warnings to 700 companies in 2021 that it was at least paying attention to the problem, something that can’t be said of previous incarnations of the agency.

Filed Under: disclosure, ftc, influencers, marketing, phones, regulatory enforcement
Companies: google

from the interesting-what-you're-admitting-here dept

We’ve covered some of the difficulties Trump’s Truth Social is having getting users to actually use the platform, and the same appears to be true for the various other Trumpist Twitter wannabes like Parler and GETTR. NBC News has a somewhat hilarious story in which its reporters went to talk to “conservative influencers” to get their thoughts, and they all seem unenthusiastic about those other platforms, whining that they’re all just “echo chambers.”

That buzz was tempered by influencers who said while they do use these platforms, they don’t see them as a replacement for the wide reach of the mainstream options. Many of them used the phrase “echo chamber” when discussing their concerns about the platforms.

“I think the challenge that a lot of these newer ones have is to not be an echo chamber for people who hold similar beliefs,” said Alex Weber, a content creator who was embraced by conservatives online after posting videos criticizing mask mandates, vaccine mandates and the mainstream media. “I think why Instagram and Facebook and all these are so impactful is because you’ve got all different types of people.”

This is amusing (and telling) on multiple levels. First of all, considering how much time they spent whining about how Twitter, Facebook, Instagram, etc. were their own “echo chambers” they actually know, deep down, that those sites actually have “got all different types of people.” That’s because contrary to the Trumpist narrative, none of those sites actually ban people based on ideology. They only do so if you violate their rules. The narrative of viewpoint-based discrimination is bullshit. And conservatives know it.

It’s also amusing in that it emphasizes that these “influencers” are only doing this because they want to engage in culture wars. They get clout by “owning the libs” or whatever other nonsense, and you can’t do that unless you can rile people up.

But, most importantly, it should put into stark relief what many of these pretend “free speech” battles are about. It’s not about the right to speak — because they have that on all these other platforms. What they’re really demanding is a right to an audience, and no matter what Elon Musk says, “free speech principles” have never included that.

Filed Under: audience, conservatives, echo chambers, free speech, influencers, trumpists
Companies: gab, gettr, parler, truth social

How China Uses Western Influencers As Pawns In Its Propaganda War

from the chaos-and-suspicion dept

China’s efforts to subdue the turkic-speaking Uyghurs in the Xinjiang region will be familiar to Techdirt readers. International awareness is increasing, too, not least thanks to the diplomatic boycott of the Beijing Winter Olympics that the US and other countries have announced. That presents an interesting challenge to the Chinese authorities: how to counter the growing evidence of pervasive surveillance and large-scale arrests of the Uyghurs. Using official outlets like China’s Global Times is one way, but its articles are easily dismissed as crude propaganda. Much more interesting is the approach described by the New York Times, which looks at how China is helping Western YouTubers to report on the country:

The videos have a casual, homespun feel. But on the other side of the camera often stands a large apparatus of government organizers, state-controlled news media and other official amplifiers — all part of the Chinese government’s widening attempts to spread pro-Beijing messages around the planet.

State-run news outlets and local governments have organized and funded pro-Beijing influencers’ travel, according to government documents and the creators themselves. They have paid or offered to pay the creators. They have generated lucrative traffic for the influencers by sharing videos with millions of followers on YouTube, Twitter and Facebook.

Typically, the Chinese government support comes in the form of free organized trips around China, particularly in Xinjiang. By showing the influencers a carefully sanitized image of life in the country, the authorities don’t need to worry about negative stories. They simply make it easy for the YouTubers to present images of jolly peasants and happy city-dwellers, because that’s all they are allowed to see.

One of the authors of the New York Times piece, Paul Mozur, noted on Twitter another important way that the authorities are able to help their influencer guests. Once produced, the China-friendly videos are boosted massively by state media and diplomatic Facebook and Twitter accounts:

One video by Israeli influencer Raz Gal-Or portraying Xinjiang as “totally normal” was shared by 35 government connected accounts with a total of 400 million followers. Many were Chinese embassy Facebook accounts, which posted about the video in numerous languages.

A new report from the Australian Strategic Policy Institute, “Borrowing mouths to speak on Xinjiang“, has some more statistics on this practice:

Our data collection has found that, between January 2020 and August 2021, 156 Chinese state-controlled accounts on US-based social media platforms have published at least 546 Facebook posts, Twitter posts and shared articles from [China Global Television Network], Global Times, Xinhua or China Daily websites that have amplified Xinjiang-related social media content from 13 influencer accounts. More than 50% of that activity occurred on Facebook.

Mozur says that the use of Western influencers in this way also allows employees of Beijing-controlled media, like the journalist Li Jingjing, to present themselves as independent YouTubers. On Twitter, however, she is labeled as “China state-affiliated media“. The Australian Strategic Policy Institute sees this as part of a larger problem (pdf):

labelling schemes adopted by some video-sharing and social media platforms to identify state-affiliated accounts are inconsistently applied to media outlets and journalists working for those outlets. In addition, few platforms appear to have clear policies on content from online influencers or vloggers whose content may be facilitated by state-affiliated media, through sponsored trips, for example.

According to Mozur, China’s state broadcaster is actively looking for more influencers, offering bonuses and publicity for those who sign up. In the US, China’s consulate general is paying $300,000 to a firm to recruit influencers for the Winter Olympics, ranging from Celebrity Influencers with millions of Instagram or TikTok followers, to Nano Influencers, with merely a few thousand. The ultimate goal of deploying these alternative voices is not to disprove negative stories appearing in Western media, but something arguably worse, as the New York Times report explains:

“China is the new super-abuser that has arrived in global social media,” said Eric Liu, a former content moderator for Chinese social media. “The goal is not to win, but to cause chaos and suspicion until there is no real truth.”

As if we needed any more of that?

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: china, influencers, propaganda, social media, surveillance, uyghurs

Does Taking Down Content Lead Ignorant People To Believe It's More Likely To Be True?

from the well-that's-a-tough-question dept

Harpers has a giant and fascinating article by Barrett Swanson entitled The Anxiety of Influencers that has received some attention online. Most of the reactions are the kind of typical tut tutting about the existence of TikTok/Instagram influencers whose entire (quite short) careers as “influencers” are based on their ability to get famous on social media for influencing. I do understand why people — especially older folks (a category I now inhabit myself) — look down upon these stories and shake their heads and wonder “what has happened to the children these days?” However, I’m more in the camp of recognizing this kind of thing happens in every generation, and I don’t begrudge kids these days from trying to chase a dream, even if it feels like a silly one to someone not of that generation. There will always be young people chasing dreams, and along with it old people complaining about the kids these days. I don’t think that approach is particularly useful, so I’ll just say that the article is an interesting window into some of the “collab houses” that have sprung up all over (though mostly in LA), full of kids trying to become famous as influencers.

The reason this is here on Techdirt is one tiny bit of the article that touches on content moderation. At one point in the article, Swanson — who deftly alternates between chronicling “the kids these days,” envying some of their fame and attention, and recognizing just how preposterous all of this is — is talking with Chase Zwernemann, who (perhaps somewhat incredibly) is one of the “adults” in the collab house space at a geezerly 21 years old, enabling him to be “VP of talent management” for what he and his colleagues want to suggest is an academy to produce influencers. And Chase appears to have some interesting views about the state of the world, and what he learns online.

Chase, the media liaison and self-described ?influencing professor,? agrees. Later that day, he will tell me that ?we?ve been kind of lucky to have these outlets across the last few months because we?ve been more exposed to what?s really going on.? For instance, just a few weeks ago, he was at home scrolling through his phone as a ritual of pre-sleep entertainment, at which point he stumbled upon ?some kind of documentary? about the apparently rampant levels of Satanism in the U.S. entertainment industry. The documentary offered a detailed exegesis of demonic iconography, which supposedly many directors embed in their TV shows and movies. ?It freaked me out, one hundred percent,? Chase says, ?because I?ve seen those types of things?those signs and symbols?in these entertainment people?s offices, and so then to see this documentary and to start putting the pieces together, I mean, it?s nuts, man.?

At this point, I nonchalantly inquire as to whether Chase could maybe brandish his smartphone and pull up the video in question, and I?m soon made to view something called ?Out of Shadows,? which has been posted on YouTube by an account called?I shit you not?Thinqing QAnon. Later, when I ask Chase whether he?s ever heard about the QAnon conspiracy, he says no, but explains that the video must be legit because ?it?s gotten deleted multiple times off the internet, which is insane.? Epistemologically, this is where we are as a country: when content gets expurgated because of blatant misinformation, it is taken as a sure sign of that source?s truthfulness.

And… frankly… I’m not quite sure how to respond to that. Sure, there’s an element of The Streisand Effect in there, which I understand pretty well. But, this is a slight veering off from the Streisand Effect — assuming that every takedown via content moderation must only be done because of the “hidden truths” the content reveals.

This certainly gets to the heart of some of the cultish conspiracy theory nonsense that goes around these days. In this view, nothing can be proven false, because merely attempting to do so somehow validates it. We’ve seen this before, with other conspiracy theories, but it makes me wonder if the scale is different in this case.

And that then opens up the question of what, if anything, should be done in such a situation. Leaving up blatantly false disinformation that is sucking people in with nonsense and lies is obviously problematic. But so is recognizing that removing the disinformation may lead people to believe in it more strongly. How do you square those two things and come up with a plan to respond? Part of it, obviously, is that different people react to things in different ways. Clearly, young Chase’s reaction to finding out this content keeps getting deleted is not the way everyone (or even most people) will respond. But it’s unclear how many others would fall into that camp. Or what to do about the Chases of this world that are taking information that should be seen as evidence that they’re mainlining disinformation, and interpreting it instead as evidence that the misinformation is true.

To some extent, this brings me back to a point that I’ve been making for years concerning questions of content moderation: we can’t expect “someone else” (government, big companies, journalists, fact checkers, etc.) to solve every problem. That’s just not how it works. To some extent, at some point, there needs to be some personal responsibility and some level of media literacy for the people who consume all this stuff. And clearly we’ve got a long way to go on that front.

Filed Under: content moderation, disinformation, influencers, truth

Three TikTok Influencers Influenced A Judge To Block Trump's TikTok Ban

from the now-that's-influence dept

Remember Trump’s ridiculous executive order to ban TikTok if it wasn’t sold to an American company? Then there was a grifty non-deal in which Oracle agreed to host TikTok’s new American subsidiary, though nothing about that deal appears to have been finalized, and the executive order was still somewhat in place. The first stage of the ban on the app was blocked by a judge in a lawsuit from TikTok itself. But that ruling did not (yet) block the second stage of the executive order which was set to go into effect this month.

So some good news: that too has been blocked thanks to a lawsuit from three TikTok influencers: Douglas Marland, Cosette Rinab, and Alec Chambers. The three of them filed their lawsuit in September, right after the details of the executive order came out. I don’t know much about these influencers, but I will note they had some high-powered, big time lawyers working the case for them (including the firm the judge in this very case worked at prior to being put on the bench…).

The lawsuit noted that the three influencers were a comedian, a fashion creator and a musician “each of whom has developed a significant following by creating and posting content on TikTok.” They argued that the executive order violated their 1st Amendment rights, creating prior restraint of their speech. As they correctly note, even on the flimsy “national security” basis that Trump, Wilbur Ross, and Mike Pompeo made in pushing through this executive order, you can’t just ban speech broadly like that.

The Executive Order and implementing regulations violate the First Amendment because they are unconstitutionally overbroad and an impermissible prior restraint of speech. Purportedly issued to address national security concerns, the Executive Order approaches this alleged problem with a sledgehammer, not a scalpel, as the First Amendment requires. If in fact TikTok poses national security risks, the government must identify those risks and tailor the solution narrowly to address the risks, without unnecessarily trampling on Plaintiffs? constitutional rights. The Executive Order and regulations fail to do so.

The DOJ insisted that this was all normal national security stuff (it’s not) and that the 1st Amendment claims were “meritless.” Honestly, I hope the DOJ lawyers who had to write this feel bad. It’s such a weak argument that they have to know is utter bullshit. They claim that because they’re only banning business transactions (that will make it impossible to use TikTok) that’s not the same as actually banning TikTok. They also claim — again, laughably — that the ban is narrowly tailored to the national security interests of the government. They must have been laughing (or drinking heavily) when they wrote that.

Here, the Executive Order and Commerce Identification prohibit business-to-business economic transactions with a foreign entity and its subsidiaries based on the President?s national security determinations. The fact that those prohibitions may have adverse, downstream effects on a purported forum for Plaintiffs? speech is legally irrelevant:

Let’s just say the judge was not impressed. The opinion cuts through the DOJ’s argument pretty thoroughly. Though Judge Wendy Beetlestone doesn’t issue a full ruling on all of the arguments brought by the influencers, she notes that they have established a likelihood of success that the Commerce Department’s planned implementation of the executive orders is beyond its legal authority (in legal talk: “ultra vires”).

The judge essentially laughs at the DOJ for arguing that courts are not allowed to review decisions made by the Executive Branch under the IEEPA (the national security law that Trump tried to stretch to justify this executive order). The court points out that, contrary to the DOJ’s beliefs, there are plenty of aspects of the IEEPA that courts absolutely can review — including in this case. And, in reviewing it, it seems that the one who has exceeded their authority here is not the court, but the Commerce Department. Specifically, as was noted in the case brought by TikTok that barred the first part of the Commerce Department plan, the IEEPA has a very clear exemption: it can’t be used to block “information or informational materials.” And thus, the implementation here would do that, which is not allowed under the IEEPA.

The next question, then, is whether or not these influencers have shown that they will face irreparable harm if the block goes into effect. And the judge decides that the answer is yes:

Plaintiffs have established themselves as significant influencers based on their ability to engage large audiences on the TikTok platform. If the Commerce Identification goes into effect, Plaintiffs will lose the ability to engage with their millions of followers on TikTok, and the related brand sponsorships. According to Plaintiffs, each has tried and failed to establish a following and work as an influencer on competitive platforms. Shuttering TikTok would in fact shut down Plaintiffs? influencing activities. This harm is not merely possible, but certain to occur after November 12.

Finally, the court notes that an injunction makes sense from a public interest standpoint:

The Government contends that the national security interests identified in the TikTok Executive Order and the Commerce Identification outweigh the harm Plaintiffs will suffer absent injunctive relief. But Congress has already performed a balancing act, and has determined that the President?s ability to exercise his IEEPA authority to respond to a national emergency does not extend to actions that directly or indirectly regulate the importation or exportation of informational materials…. Granting an injunction to prevent a violation of IEEPA?s informational materials exception would be consistent with this congressional determination.

Moreover, the Government?s own descriptions of the national security threat posed by the TikTok app are phrased in the hypothetical. The Government notes that TikTok?s parent company ?ByteDance has significant and close ties to the CCP which could potentially be leveraged to further [the CCP?s] agenda.? It states that one of the risks posed by TikTok ?is the possibility that the PRC government could . . . compel TikTok to provide systemic access to U.S. user?s sensitive personal information.? The Court cannot say the risk presented by the Government outweighs the public interest in enjoining the Commerce Identification, when Plaintiffs have established a clear likelihood that the Identification?s prohibitions contravene IEEPA.

And thus, the Commerce Department is blocked from implementing its planned rules to block TikTok.

There had been some chatter a few weeks back that since Trump got all the headlines he wanted out of his TikTok ban and the Oracle deal, he no longer much cares about it. The assumption was that the administration would likely just let the issue fade away, and now the court is helping that process move along. Of course, this also demonstrates what a preposterous, vindictive, unconstitutional, garbage move this whole thing was in the first place.

Filed Under: alec chambers, authority, commerce department, cosette rinab, donald trump, douglas marland, executive order, ieepa, influencers, information service, tiktok ban
Companies: tiktok

The Latest In Trademark Abuse Is Registering Marks To Obtain Ownership Of Instagram Accounts

from the fake-it-until-you-make-it dept

When one thinks about an Instagram account being taken over by a malicious actor, one usually imagines some kind of hack or social engineering resulting in the theft of an account password. The refrain “It wasn’t me, I was hacked!” that you hear from some whose social media profiles are the subject of social scrutiny relies on this impression.

But there are many different ways to hack a cat. The latest in Instagram account takeovers appears to be done through the avenue of trademark law, interestingly enough. Motherboard has a fascinating write-up detailing an entire ecosystem of malicious actors who are abusing trademarks to convince Instagram to hand over access to accounts.

Scammers do this by creating fake companies and trademarks to convince Instagram they should be the legitimate owner of a username in question, with fraudsters using “trademarking,” as the technique is known, to get ahold of sought-after, valuable handles, according to posts and evidence of the process in action obtained by Motherboard. The scammers can then keep these handles as digital mementos, brag about their acquisition, or resell them at a profit in a thriving underground community.

Instagram allows users to report handles that a person or company believes infringes on their trademark. For example (this is a hypothetical), if the creator of the @disney handle on Instagram was not actually associated with Disney, the company may want to appeal to obtain ownership of the username. If Instagram agrees, it may then hand over control of the account to the original trademark holder. Instagram told Motherboard it has a team that works on trademark and intellectual property issues, and as part of that process, the team reviews whether a complaint may be fraudulent.

Judging by the sheer volume of bad actors that are “trademarking” in order to fool Instagram, it seems the company’s team is at best not fully up to the task of weeding out the fraudsters. And, to be clear, this isn’t so much a problem with trademark law as it is a problem with Instagram putting so much weight on supposed trademark ownership that it acts as the linchpin for account takeovers. That said, while time consuming, the ease with which bad actors can spin up trademarks makes this problem more wide-spread.

Several users on the underground forum OGUsers, which focuses on the theft and sale of high value Instagram accounts, appear to engage in the practice.

“I’m looking to get a trademark or fake trademark that will make it look like I own a word so I can get an insta username,” one user posted on the forum last year.

“Need someone from the uk to file a trademark from me,” another OGUsers member wrote last year. “Willing to pay fees + 20% in bitcoin.”

A previous Motherboard investigation found members of OGUsers often sell handles for thousands or sometimes tens of thousands of dollars worth of cryptocurrency, although most of those account hijackings likely rely on SIM-jacking, where a hacker takes control of a victim’s phone number.

Again, the ultimate culprit here is Instagram using a trademark, or supposed trademark, as the chief justification for handing over an Instagram account. There obviously needs to be more of a check in place to ensure that this exact tactic is not allowed to be abused. It’s also something of a symptom of ownership culture that an individual is allowed to point to a trademark, then to an Instagram account, and claim ownership.

It seems the only barrier to abusing trademark law for malicious actions is one of creativity.

Filed Under: influencers, scams, takeovers, trademark
Companies: instagram

NBC Once Again Overvaluing Content, Undervaluing Community

from the their-own-loss dept

NBC Universal, like so many big media companies, seems to view everything through a top-down broadcast media lens. For example, while it may seem like a good idea that the company is finally (finally!) recognizing that people may be craving local content that is sometimes difficult to find, there’s something missing in its announcement of plans to create “locals only” websites targeted at specific geographic regions. You can read the entire press release and see if you notice what’s missing.

Every single part of the description of the site is about delivering content to people. Nowhere is there any sense of actually building a community around that content. The only time “community” is mentioned is as a “target.” The press release claims that these sites are aimed at “social capitalists” who are the leading influencers in their communities, but the company seems to have missed out on the fact that the reason those folks are influencers isn’t because they sit back and just consume the content shoveled to them, but because they take part in the process. They share the news, they comment on it, they write it, they annotate it, they build on it and they help create it. But all that NBC Universal is talking about is taking the same old, old model of simply shoveling content to people.

Filed Under: community, content, influencers, local, news, social capitalists
Companies: nbc universal