john kennedy – Techdirt (original) (raw)

Senator Kennedy Continues To Push My Buttons With His Ridiculously Dumb 'Don't Push My Buttons' Act

from the that's-not-how-any-of-this-works dept

Last fall, Senator John Kennedy of Louisiana (a supposedly smart Senator who seems to have decided his political future lies in acting dumber than 95% of all other Senators) introduced an anti-Section 230 bill. He’s now done so again in the new Congressional session. The bill is, once again, called the “Don’t Push My Buttons” Act and introducing such a piece of total garbage legislation a second time does not speak well of Senator Kennedy.

The bill is pretty short. It would create an exception to Section 230 for any website that… uses algorithms to rank content for you based on user data it collects. Basically, it’s taking a roundabout way to try to remove Section 230 from Facebook, Twitter, and YouTube. It is not clear why algorithmic ranking has anything to do with Section 230. While social media sites do tend to rely on both, they are separate things. Indeed, part of the reason why social media sites rely on algorithms is because Section 230 helps make sure they can host so much user-generated content, that there needs to be algorithmic rankings to make those sites useable.

So, in practice, if this became law, all it would really serve to do is to make social media sites totally unusable. Either, websites would have to stop doing algorithmic ranking of content (which would make the sites unusable for many people) or they’d start massively moderating content to avoid liability — making sites nearly unusable.

And, of course, there’s an exemption to this exemption which makes the whole thing useless. The bill will allow algorithms… if the user “knowingly and intentionally elects to receive the content.” So, all that will happen is every social media service will show you total garbage with a pop up saying “hey, we can straighten this out for you via our algorithm if you just click here” and everyone will click that button.

And that’s not even getting into the constitutional problems with this bill. It’s literally punishing companies for their editorial (ranking) choices. That’s Congress regulating expression. I don’t see how this bill would possibly survive 1st Amendment scrutiny. But, of course, it’s not designed to survive any scrutiny at all. It’s to serve as ever more grandstanding for Senator Kennedy to pretend to be looking out for a base he knows is ignorant beyond belief — and rather than educating them, he’s playing down to them.

Filed Under: algorithms, content moderation, john kennedy, push my buttons act, ranking, section 230

No, Getting Rid Of Anonymity Will Not Fix Social Media; It Will Cause More Problems

from the not-this dept

There’s an idea that pops up every so often among people who are upset about misinformation online but don’t actually understand the realities of online communities and the dynamics of how it all works: it’s the idea that “anonymity” is the root cause of many of the internet’s problems. We’ve spent years debunking this, though it’s been nearly a decade since there was a previous focus on this issue — and it’s now coming back.

Unfortunately, part of the reason it’s coming back is because a friend of Techdirt, Andy Kessler (who we’ve even published on Techdirt), wrote a piece for the Wall Street Journal calling for the end of anonymity online. I will note, that a large part of the article is correct: the part that accurately notes that Section 230 is not the problem and reforming or repealing it will do a lot more harm than good. That is exactly right.

But then Andy goes off the rails and decides that getting rid of anonymity is the real solution.

He’s wrong, and we’ll get into why in a moment. But, tragically, his piece has picked up some supporters in high places. Senator Ron Johnson, one of the key enablers of spreading disinformation in Congress (under his own name, of course), tweeted a link to the article, saying that perhaps we should end anonymity online:

That says:

I’m concerned that Congress?s involvement in Section 230 reform may lead to more harm than good.

One solution may be to end user anonymity on social media platforms. Social media companies need to know who their customers are so bad actors can be held accountable.

The next day, Senator John Kennedy, another famed Senatorial spreader of disinformation under his own name, announced that he was going to introduce legislation to ban anonymity online. Specifically, he said social media companies would have to verify the legal identities of every user, and said that this would “cause a lot of people” to “think about their words.”

There are three big problems with this idea:

  1. It’s unconstitutional.
  2. It doesn’t work.
  3. It creates real harms & puts marginalized and vulnerable people at risk.

Beyond those three things, it’s a lovely idea. Did I say lovely? I meant short-sighted and half-baked.

Let’s go through it bit by bit.

It’s unconstitutional.

Basically, throughout the 20th century, there were a series of cases that reached the Supreme Court on the question of anonymity and whether or not the government could force the revealing of names. The most notable was McIntyre v. Ohio Elections Commission in 1995, where the Supreme Court was pretty explicit:

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority…. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation–and their ideas from suppression–at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.

Some people might argue that “this is different” thanks to social media, but the details of the McIntyre case suggest that is very much in line with what is happening today. Some may argue that since we’re often talking about speech trying to influence an election, it is different. Or what about to stop fraud? Or defamation? Literally all of that is covered in the McIntyre ruling:

The state interest in preventing fraud and libel stands on a different footing. We agree with Ohio’s submission that this interest carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large. Ohio does not, however, rely solely on §3599.09(A) to protect that interest. Its Election Code includes detailed and specific prohibitions against making or disseminating false statements during political campaigns. Ohio Rev. Code Ann. §§3599.09.1(B), 3599.09.2(B) (1988). These regulations apply both to candidate elections and to issue driven ballot measures…. Thus, Ohio’s prohibition of anonymous leaflets plainly is not its principal weapon against fraud…. Rather, it serves as an aid to enforcement of the specific prohibitions and as a deterrent to the making of false statements by unscrupulous prevaricators. Although these ancillary benefits are assuredly legitimate, we are not persuaded that they justify §3599.09(A)’s extremely broad prohibition.

As this case demonstrates, the prohibition encompasses documents that are not even arguably false or misleading. It applies not only to the activities of candidates and their organized supporters, but also to individuals acting independently and using only their own modest resources. It applies not only to elections of public officers, but also to ballot issues that present neither a substantial risk of libel nor any potential appearance of corrupt advantage. It applies not only to leaflets distributed on the eve of an election, when the opportunity for reply is limited, but also to those distributed months in advance. It applies no matter what the character or strength of the author’s interest in anonymity. Moreover, as this case also demonstrates, the absence of the author’s name on a document does not necessarily protect either that person or a distributor of a forbidden document from being held responsible for compliance with the election code. Nor has the State explained why it can more easily enforce the direct bans on disseminating false documents against anonymous authors and distributors than against wrongdoers who might use false names and addresses in an attempt to avoid detection. We recognize that a State’s enforcement interest might justify a more limited identification requirement, but Ohio has shown scant cause for inhibiting the leafletting at issue here.

Basically all of that would apply to social media as well.

Kessler’s WSJ piece suggests that this would be no different than Know Your Customer (KYC) requirements in the financial industry, but that is quite different. That is an explicit rule developed for determining fraud. It is easily distinguishable from what is being demanded here on two key points. First, social media involves tons of 1st Amendment protected speech, so any law attacking anonymity there would require strict scrutiny to make sure that it was narrowly targeted and the only effective way to meet a specific goal (which it is not). Separately, the goal of having a KYC setup for social media is not to stop fraud. As Kennedy himself said (revealing its unconstitutional purpose), it would be to make people “think about their words.”

It doesn’t work.

Proof? Facebook already requires real names.

I really shouldn’t need much more than that, but just to humor you: back in 2016 we wrote about a huge study involving half a million comments online and found that trolls tended to be even worse when using their real names.

Results show that in the context of online firestorms, non-anonymous individuals are more aggressive compared to anonymous individuals. This effect is reinforced if selective incentives are present and if aggressors are intrinsically motivated.

This is not to say all people using their real names are overly aggressive. Or that all anonymous users are lovely. But the idea that anonymity is the problem is just… not supported by the facts.

And, just to point out something important: the storming of the Capitol was pushed for by a ton of people using their real names. They didn’t do it thinking they were anonymous.

It creates real harms & puts marginalized and vulnerable people at risk.

Back in 2011 we had a post talking about the damage that can be done by requiring people to identify themselves on social media. It included a list from another site of reasons people gave for wanting to use pseudonyms, and you’ll realize there are some really good ones. The original link is now gone, but I’ll repeat them here:

Such a list can go on and on. As Danah Boyd has written, requiring people give their real names is itself an abuse of power. And, just to back that up, note that the people now calling for it are the powerful.

The people who most heavily rely on pseudonyms in online spaces are those who are most marginalized by systems of power. ?Real names? policies aren?t empowering; they?re an authoritarian assertion of power over vulnerable people.

Boyd notes that in collecting data on teen use of social media, she found that people of color were significantly more likely to use pseudonyms, while white teens were more likely to use their real names.

And, of course, none of this discusses what a total pain this would be for most sites. We’ve always allowed people to comment anonymously on Techdirt. If we were required to verify every commenter, we’d most likely shut down the comments — which remain such a key part of the site here. It’s also where we learn so much, often from anonymous or pseudonymous commenters. I have no idea the identity of nearly all of our best commenters, and I don’t want or need to know.

So, please, can we dump this silly idea? Anonymity doesn’t solve the problems you think it would, and it would put people at risk.

Filed Under: anonymity, john kennedy, ron johnson, social media, trolling

Reps. Gabbard And Gosar Introduce Ridiculous House Companion To Ridiculous Anti-230 Senate Bill From Senator Kennedy

from the push-my-buttons dept

You may recall that, last year, Rep. Tulsi Gabbard decided to file a ridiculously silly lawsuit against Google, claiming that the company had “violated her First Amendment rights” because it temporarily shut down her advertising account, and also because it filtered some of her campaign emails to spam. In a lawsuit that read remarkably similar to the various people arguing that “anti-conservative bias” was the basis for a lawsuit, it made a whole bunch of silly claims that any good lawyer would recognize as frivolous (hold that thought).

The lawsuit was easily tossed out on 1st Amendment grounds. And when I say “1st Amendment grounds,” I mean the court had to explain to Gabbard — a sitting Congressional Representative — that the 1st Amendment only applies to the government and Google is not the government. This is really embarrassing:

Google is not now, nor (to the Court?s knowledge) has it ever been, an arm of the United States government….

[….]

To support its contention that a private actor can regulate elections, Plaintiff directs the Court to Terry v. Adams, 345 U.S. 461, 463 (1953). However, Terry is utterly inapposite to Plaintiff?s contention. In 1954, the Supreme Court held that the Fifteenth Amendment was implicated when a political party effectively prevented black citizens from voting. Terry, 345 U.S. at 463. The Court held: ?The evil here is that the State, through the action and abdication of those whom it has clothed with authority, has permitted white voters to go through a procedure which predetermines the legally devised primary.? Id. at 477. But Terry bears no relation to the current dispute, where Google, an undisputedly private company, temporarily suspended Plaintiff?s Google advertising account for a matter of hours, allegedly based on viewpoint bias.

What Plaintiff fails to establish is how Google?s regulation of its own platform is in any way equivalent to a governmental regulation of an election. Google does not hold primaries, it does not select candidates, and it does not prevent anyone from running for office or voting in elections. To the extent Google ?regulates? anything, it regulates its own private speech and platform. Plaintiff?s ?national security? argument similarly fails. Google protects itself from foreign interference; it does not act as an agent of the United States. Nearly every media or technology company has some form of cybersecurity procedure. Under Plaintiff?s theory, every media organization that took steps to prevent foreign cybercrimes could potentially implicate the First Amendment. Google?s self-regulation, even of topics that may be of public concern, does not implicate the First Amendment.

Pretty embarrassing for a court to need to explain how the 1st Amendment works to someone in Congress, but hey, it’s 2020.

The court jumped straight to the 1st Amendment issue, though it could have easily tossed out the case on Section 230 grounds as well, and it appears that Tulsi has now joined the “destroy Section 230” crowd, teaming up with Rep. Paul Gosar to introduce yet another anti-Section 230 bill in the House. If Gosar’s name rings a bell, he’s the representative from Arizona whose politics are so Trumpian and ridiculous that six of his own siblings took out an ad that told people not to vote for their brother.

So these two have now teamed up to introduce the Don’t Push My Buttons Act. If that sounds familiar, it’s because Senator John Kennedy introduced the same thing in the Senate last week. When that was introduced, we explained just how awful the bill was and that analysis stands. It would take Section 230 immunity away from sites that do some fairly basic data tracking, or if they use an algorithmically generated feed. It makes no sense and seems to serve only one purpose: to frustrate social media companies with annoying nuisance regulation.

The bill seems unlikely to go anywhere, and Gabbard is not running for re-election, so this again seems more for show than anything else, but what a terrible bill to go out on. Gabbard failed in her wacky legal attack on social media, and so as a parting gift she tries to remove their Section 230 protections. Disgusting.

Oh, as a side note: in Gabbard’s original lawsuit she was represented by the lawyers at Pierce Bainbridge. While the specific lawyers working on her case appear to have jumped ship from that firm during the collapse of that firm, the founder of the firm John Pierce, was a “high profile” addition to the defense team of Kyle Rittenhouse, the teenager facing murder charges in Wisconsin. This seemed weird, given that Pierce’s experience is in civil litigation, not criminal, and had to resign from the board of the foundation that he and Lin Wood (another lawyer with quite the recent reputation) had set up to seek funds for Rittenhouse’s defense, after questions were raised about how Pierce presided over the mess that was his disgraced law firm. The full article is worth reading, but just a snippet:

The firm?s financial woes have involved Pierce himself. In March 2020, John Pierce and Pierce Bainbridge were sued by a payday-lender-style financial business called Karish Kapital, which offers emergency cash for businesses. Karish Kapital alleged that Pierce had personally taken out a loan worth nearly $4 million from them and signed over the firm?s assets as collateral.

In a statement to The American Lawyer, a Pierce Bainbridge spokesperson said Pierce was on an ?indefinite leave of absence? and had ?accepted money from Karish Kapital LLC for his personal use.? In May, Pierce told Law360 that he had gone to rehab for unspecified issues.

Pierce?s loan from Karish Kapital marked the start of a cascade of bad news for the firm. On April 9, three named partners left the firm. James Bainbridge, the last remaining named partner aside from Pierce, set up his own separate firm in July, although he remains a partner at Pierce Bainbridge. As of May, Law360 reported, more than 60 lawyers had left the firm in the last six months.

So beyond an embarrassing legal loss, the fact that this was the firm Gabbard chose to file her ridiculous lawsuit against Google seems to raise significant questions about her own judgment in understanding not just the law she’s now seeking to change, but also the people she chose as her lawyers. Perhaps she really should sit out questions regarding internet law.

Filed Under: don't push my buttons act, john kennedy, john pierce, paul gosar, section 230, tulsi gabbard

Because Congress Apparently Has NOTHING AT ALL IMPORTANT To Work On, It Introduced TWO MORE Section 230 Bills Yesterday

from the don't-you-people-have-work-to-do? dept

If you were in a coma for the past 12 months, just came out of it, and had to figure out what had happened in the last year or so solely based on new bills introduced in Congress, you would likely come to the conclusion that Section 230 was the world’s greatest priority and the biggest, most pressing issue in the entire freaking universe. I’ve completely lost track of how many new bills have been introduced this year — in the midst of a pandemic — that try to undermine and destroy the open internet enabled by Section 230 of the CDA. It’s absolutely ridiculous.

Last week we had Lindsey Graham and his garbage Online Content Policy Modernization Act. Josh Hawley, the lying demagogue, has probably introduced half a dozen bills aimed at undermining Section 230, including one a few weeks ago. On Tuesday of this week we had Senators Manchin and Cornyn introduce their despicable and dangerous See Something, Say Something Act.

And then, on Wednesday, we got two more truly awful anti-230 bills. What’s going on over there on Capitol Hill? If you introduce 12 bills to destroy the internet do you get a 13th one free?

First up, we had Reps. Sylvia Garcia and Ann Wagner introduce the House companion to the Senate’s EARN IT Act. We’ve spent months detailing how this bill is a two-fer: it’s dangerous for both encryption and Section 230. And yet, it now has bipartisan support in both the Senate and the House. Garcia seems so proud of being a part of this nonsense that she didn’t put the press release on her own website (though she did have time to put up a press release for a bill to rename a post office).

Ann Wagner, you may recall, is the force behind the previous disastrous anti-230 bill, FOSTA, who has spent the years since passing that bill just flat out lying about what the bill did. She claims it’s been a huge success, and yet it has yet to be used successfully, has been shown to put women’s lives in danger, and has made it more difficult for law enforcement to find actual sex traffickers.

But, not surprisingly, Wagner is touting her “success” with that terrible legislation in introducing this new garbage:

?I?m proud to join with my colleague Rep. Sylvia Garcia in introducing the EARN IT Act, critical legislation that will hold accountable bad actors that facilitate child sexual abuse material,? said Congresswoman Wagner. “This bill is the natural follow-up to FOSTA, my Fight Online Sex Trafficking Act, which amended section 230 to hold accountable websites that facilitate sex trafficking. As I have said many times, I believe that if exploitation is a crime offline, it should also be a crime online, and I?m delighted to continue working with survivors, advocates, law enforcement, and industry to protect children from online sexual exploitation.?

Yes, she keeps saying that “if it’s a crime offline, it should be a crime online” and it always has been. This bill, like her last bill, changed literally nothing about what was a “crime.” What it did was blame service providers for non-crimes, and made them less willing to host perfectly legal content. And, again, her bill has harmed survivors and made it more difficult for law enforcement, meaning it has done the opposite of protecting children from online sexual exploitation.

And the EARN IT Act, as we’ve discussed, will again make things worse. This version of EARN IT is even worse than the Senate version, which included a narrow (and most likely useless) attempt to say that it couldn’t be used to ban encryption. This version of the bill narrows that limitation, meaning encryption would be even more at risk.

And that was for the horrific bill we already knew about.

Next up to the plate is Senator John Kennedy with the ridiculously named Don’t Push My Buttons Act. As you may have guessed, it’s pushed all of my buttons for wasting my time in needing to respond to absolute wingnut batshittery in the form of you-can’t-actually-be-serious legislation. There have been so many dumb anti-230 bills that it’s hard to rank which one’s worse than the next, but this one is… just bad. Basically, this would take Section 230 away from any site that tracks any information on its users, or presents an algorithmically generated feed for its users. But, it would not apply if the users of those sites “knowingly and intentionally elect to receive” the algorithmically generated feed. And so sites that want to do that will just put it in their terms of service and make people agree to it and… what good does that do for anyone?

And what does this even have to do with Section 230 anyway? If you don’t like algorithmically generated feeds, it would seem that (1) you’re going to have a 1st Amendment issue to overcome at some point and (2) there are other tools in the toolbox and (3) it’s totally unrelated to the questions about Section 230. This is just “old man yells at cloud… and writes weird legislation.”

Kennedy is trying to get this bill attached as an amendment to Graham’s wacky bill that’s about to be marked up, and it’s just open season for crazy ideas on an issue that should not be a priority at this moment when people are literally dying by the thousands every damn day due to a pandemic that Congress seems to have decided to ignore.

Does this shit ever end?

Filed Under: ann wagner, congress, earn it, house, john kennedy, push my buttons, section 230, senate, sylvia garcia

Senators Wyden And Paul Put A Hold On Dangerous CASE Act; Will Propose Alternative

Last week we noted that the House (overwhelmingly) voted in favor of the CASE Act, which is presented as a “small claims court” for copyright issues, but which has significant Constitutional issues, and would almost certainly lead to an uptick in copyright trolling activity. As we noted, the bill still needed to go to the Senate, and it appears that this is (at least for now) being blocked by Senators Ron Wyden and Rand Paul who have put a hold on the bill, and will introduce an alternative approach.

Sen. Ron Wyden… is crafting alternative legislation to a bill that overwhelmingly passed the House and would create a voluntary small claims board within the Copyright Office… a Wyden aide told us. He and frequent partner here Sen. Rand Paul… recently placed holds on the Copyright Alternative in Small-Claims Enforcement (Case) Act… according to aides.

Wyden notes that the concept of enabling more access to copyright holders to an enforcement/remedy makes sense, but he has problems with the nature of the CASE Act:

Wyden says he agrees small copyright owners “are less likely” to reap the full benefits of the copyright system than major corporations like Disney or Sony. But he said the bill would “create an extrajudicial, virtually unappealable tribunal that could impose statutory damages of $30,000 on an individual who posts a couple of memes on social media, even if the claimant sustained little or no economic harm.” The threat of litigation could stifle fair copyright use and free expression and enable copyright troll harassment, he said.

From that, it sounds like Wyden is working on some sort of compromise version that deals with the problems (including the fact that it’s probably unconstitutional) and seeking a better approach for setting up a form of a small claims court for copyright violations. He did this last year with the Music Modernization Act as well, taking a really, really bad bill, and turning it into something that was actually okay (not great, mind you, but was a general improvement — and one that got more or less everyone on board). Hopefully this new bill will do the same.

Unfortunately, it looks like those who have already decided the unconstitutional pro-copyright trolling version is the approach to take don’t really want to deal with Wyden and Paul seeking a better approach:

Bill sponsor Sen. John Kennedy… told us of “two headaches” in the Senate Thursday. “We’re working on it. I’m going to make them an offer they can’t refuse,” he said, declining to name names.

Hey, Senator John Kennedy, did you license that quote from whoever holds the copyright on The Godfather? Or are you ready to pay up to $30,000 for it?

Either way, that quote is fucked up. Wyden and Paul are seeking to make sure the bill is (1) Constitutional and (2) won’t destroy lives. And Senator Kennedy thinks that’s deserving of a Godfather-style threat? What is wrong with him?

Filed Under: case act, copyright, john kennedy, rand paul, ron wyden, senate, small claims

Senator Graham Spreads A Bunch Of Nonsense About 'Protecting Digital Innocence' Online

from the moral-panics dept

We warned last week that Senator Lindsey Graham was holding a “but think of the children online” moral panic hearing. Indeed, it happened. You can watch the whole 2 hours, but… I wouldn’t recommend it (I did it for you, though). Most of it is the usual moral panic, technologically illiterate nonsense we’ve all come to expect from Congress. Indeed, in a bit of good timing, the Pessimist’s Archive just tweeted out a clip of a 1993 Senate hearing in which then Senator Joe Lieberman flipped out about evil video games. Think about this, but two hours, and a wider array of nonsense:

It starts out with a prosecutor from South Carolina, Duffie Stone, moral panicking about basically everything. Encryption is evil. Children are being sex trafficked online. And, um, gangs are recruiting members with (gasp) music videos. Later he complains that some of those kids (gasp!) mock law enforcement in their videos. Something must be done! The second speaker, a law professor, Angela Campell, claims that we need more laws “for the children!” She also goes further and says that the FTC should go after Google and others for not magically stopping scammy companies from existing. Then there was this guy, Christopher McKenna, from an organization (“Protect Young Eyes!”) dedicated to moral panics, telling all sorts of unbelievable anecdotes about evil predators stalking young people on Instagram and “grooming” them. Remember, that actual data on this kind of activity shows that it’s actually quite rare (not zero, and that’s not excusing it when it does happen, but the speaker makes it sound like every young girl on Instagram is likely to be at risk of sex trafficking). He also asks the government to require an MPAA/ESRB-style “rating” system for apps — apparently unaware that laws attempting to require such ratings have been struck down as unconstitutional, and the MPAA/ESRB ratings only exist through voluntary agreements.

There’s also… um… this:

It’s the app where every kid, regardless of age, has access to the Discover News section, where they are taught how to engage in risky sexual behavior, such as hookup, group, anal, or torture sex, how to sell drugs, and how to hide internet activity from parents using “incognito mode.”

He’s describing Snapchat. I’ve used Snapchat for years and, uh, I’ve never come across any of that. Also, the complaint about incognito mode is… pretty messed up, considering how that’s a tool for protecting privacy. This is all straight from the standard moral panic playbook. Also, he claims that Twitter has “hardcore porn and prostitution was everywhere” — which is also news to me (and I use Twitter a lot). He also whines that VPNs are too easy to get — and then later whines that it’s “too hard” to protect our privacy. Um, hiding VPNs will harm our privacy. It’s like a hodge podge of true nonsense.

There was also John Clark from NCMEC — the National Center for Missing and Exploited Children. NCMEC actually does good work in helping platforms screen out and spot child porn. However, Clark contributes to the scare-mongering about just how awful the internet is. He also flat out lies. At one point during the panel, Senator Ted Cruz asks Clark about FOSTA and what it’s done so far. Clark flat out lies and says that FOSTA took down Backpage. This is false. Backpage was taken down and its founders arrested before FOSTA was even signed into law.

The only semi-reasonable panelist was the last one, Stephen Balkam, from the Family Online Safety Institute. While McKenna mocks the idea that “parents have a role” by pointing out that parents can’t watch over their kids every hour of every day (duh), Balkam points out that what we should be doing is not watching over our kids all the time, but rather training them and educating them to know how to be good digital citizens online and to avoid trouble. But that kind of message was basically ignored by the Senators, because what fun is actually respecting our kids and teaching them how to be smart internet users. Instead, most of panel focuses on crazy anecdotes and salacious claims about internet services that make them sounds a hell of lot more insane than any of those platforms actually are.

Later, Senator John Kennedy asks the guy from “Protect Young Eyes” if Apple can build a filter that will magically help parents block kids from ever seeing sexually explicit material. McKenna stumbles and admits he has no idea, leading Balkam to finally have to jump into the conversation (he’s the only panelist that no Senator had called on throughout the entire ordeal) to point out that all platforms have some forms of parental controls. But Kennedy cuts him off and says “but can it be done?” Balkam stutters a “yes,” which is not accurate — since Kennedy is asking for something impossible. But then Kennedy suggests that Congress write a law that requires companies like Apple and Google to install filters (something that’s already been ruled unconstitutional).

Kennedy’s idea is… nutty. He includes the obligatory “I don’t know how any of this is done” comment before suggesting a bunch of impossible ideas.

Could Apple, for example, design a program that a parent could opt into, and the instructions to Apple would be “design a program that will filter all information that my daughter or son may see that would be sexually exploitative”? Maybe “filter all pictures or written references to human genitalia.” Can that be done? … Isn’t that the short way home here?

[….]

So could we write legislation, or promulgate a rule, that says “here’s the thing that a reasonable parent would do to protect his or her child from seeing this stuff.” And we do that in conjunction with somebody that has the obvious expertise. And you filter everything. I don’t know how to do it. I can’t write software. Maybe it’s to prevent any pictures of human genitalia. Or prohibit any reference to sexual activity. I don’t know. The kids aren’t gonna like it, but that’s not who we’re trying to please here. Why couldn’t that be done?

Well, the Constitution is why it can’t be done Senator. Also, basic understanding of technology. Or the limits on filter technology. Block all mention of sexual activity? Sure, then kids will use slang. Good luck keeping up with that. Block all pictures of genitalia — then say good buy to biology texts online. Or pages about breast cancer. This is all stuff that lots of people have studied for decades and Kennedy is displaying his ignorance about the Constitution, the law, the internet, the technology, and just about everything else as well. Including kids.

Balkam points out that there are lots of private companies already making such filters, but Kennedy keeps saying “can we write a law” and “can we require every device have these filters” and Balkam looks panic’d noting he has no idea about whether or not they can write such a law (answer: they cannot, at least not if they want it to pass Constitutional muster).

Senator Blackburn… brings up Jeffrey Epstein. Who, as far as we know… didn’t use the internet to prey on girls. But according to Blackburn, Epstein proves the problems of the internet. Because. Senator Hawley then completely makes up a claim that YouTube is deliberately pushing kids to pedophiles and refuses to do anything about it. He claims — incorrectly — that Google admitted that it knows it sends videos of kids to pedophiles (and, he claims, allows the pedophiles to contact the kids) and that it deliberately has decided not to stop this. This misrepresents… basically everything once again.

Senator Thom Tillis then grandstands that it’s all the parents’ fault — and if a kid gets a mobile phone and lies about his age, we should be… blaming the parents for “giving the kids a lethal device.” No hyperbole and grandstanding there, huh? He’s also really focused on “lethality.” He later claims that the internet content itself is “lethal.”

Towards the end, the Senators all gang up on Section 230. Senator Cruz asks his FOSTA question (leading NCMEC’s Clark to falsely state that it was necessary to take down Backpage), and then Blumenthal calls 230 “the elephant in the room” and suggests that there needs to be a “duty of care” to get companies to do anything. It seems like Hawley is already gone by this time, but no one seems to point out that any such duty of care would likely lead to much greater censorship on these platforms, in direct contrast with his demand that the companies censor less.

Nevertheless, Senator Graham closes the hearing by saying that he thinks the companies need to “earn” their CDA 230 protections (which is part of Hawley’s nonsense bill). Graham suggests that Congress needs to come up with “best business practices” and platforms should only get 230 protections if they “meet those best business practices.”

Who knew the Republican Party was all about dictating business standards. What happened to the party of getting government out of business?

Who knows what will actually come out of this hearing, but it was mostly a bunch of ill-informed or mis-informed, technologically illiterate grandstanding, moral panic nonsense. In other words, standard operating procedure for most of Congress.

Filed Under: angela campbell, christopher mckenna, duffie stone, john clark, john kennedy, josh hawley, lindsey graham, moral panic, stephen balkam, ted cruz, think of the children
Companies: facebook, google, ncmec, snapchat

Senate Approves First Step In Uphill Effort To Restore Net Neutrality

from the try-and-try-again dept

Wed, May 16th 2018 01:30pm - Karl Bode

Today the Senate voted 52 to 47 to reverse the FCC’s attack on net neutrality, setting up a tougher showdown in the House.

As noted previously, net neutrality advocates managed to convince Congress to try and use the Congressional Review Act (CRA) to reverse the FCC’s misleadingly-named “Restoring Internet Freedom Order.”

That order, approved by a 3-2 FCC vote last December, not only kills net neutrality (as of June 11), but eliminates much of the FCC’s authority to police monopoly ISPs. Since many still don’t seem to understand this, it’s worth reiterating that the attack on net neutrality is just one part of a much broader plan to severely hamstring FTC, FCC, and state oversight of giant broadband monopolies that face little to no organic market competition.

Today’s hearing before the Senate included all of the favorite hits culled from a decade of net neutrality debates, including ISP-loyal lawmakers like John Thune repeating the entirely false claim that net neutrality rules somehow devastated sector investment (SEC filings, earnings reports, and countless CEO statements disprove this). Claims that U.S. net neutrality rules were “heavy handed government regulation of the internet” were also frequently repeated (that’s also not true, and the U.S. rules are arguably modest by international standards).

Net neutrality activists had been trying to secure additional Senate votes for months, something made arguably difficult by ISP lobbyist success at stupidly framing net neutrality as a partisan issue, despite widespread bipartisan support. But activists managed to get three key Republicans to join their ranks: Maine Senator Susan Collins, Alaska Senator Lisa Murkowski, and Louisiana Senator John Kennedy. Kennedy’s yes vote was a notable surprise, given he’d been supporting ISP efforts to pass a bogus net neutrality law with an eye toward pre-empting tougher state or federal rules.

But at the last moment he came along for the ride, his justification being notably amusing:

From here, the fight gets notably more difficult. The House also has to vote in favor of the CRA reversal, a tall order given the large number of breathleesly-loyal telecom industry House allies like Marsha Blackburn. And should it pass the House, it also needs to avoid a veto by President Trump. Activists hope to appeal to Trump’s tendency to float wherever the populist winds may lead, but that’s certainly still no sure thing, in part because there’s zero evidence the President has any idea what net neutrality is.

That said, even if the effort fails, it should do a wonderful job clearly illustrating who you should avoid voting for in the midterms and thereafter — especially if having a healthy, open and competitive internet is something that’s important to you.

Filed Under: ajit pai, broadband, congressional review act, cra, fcc, john kennedy, net neutrality, senate

Terrified Of Losing In Court, ISPs (With Senator John Kennedy's Help) Push Hard For A Fake Net Neutrality Law

from the pretending-to-help dept

Fri, Mar 9th 2018 06:28am - Karl Bode

ISPs are worried that the FCC’s assault on net neutrality won’t hold up in the face of court challenge. And they should be.

By law, the FCC has to prove that the broadband market changed substantially enough in just a few years to warrant such a severe reversal of popular policy. And the numerous lawsuits headed the FCC’s direction (including one by nearly half the states in the union) will also take aim at all of the shady and bizarre behaviors by the FCC during its ham-fisted repeal, from making up a DDOS attack to try and downplay the John Oliver effect, to blocking a law enforcement investigation into the rampant fraud and identity theft that occurred during the public comment period.

With the FCC repeal on unsteady legal ground, ISPs have a back up plan for in case the FCC and its mega-ISP BFFs lose in court: bogus net neutrality legislation.

Last fall, AT&T-favorite Masha Blackburn introduced one such bill in the House dubbed the “Open Internet Preservation Act.” While the bill’s stated purpose was to reach “compromise” and “put the net neutrality debate to bed,” the bill’s real intent is notably more nefarious. While the bill would ban behaviors ISPs had no real interest in (like the outright blocking of websites), it contained numerous loopholes that allowed anti-competitive behavior across a wide variety of fronts, from zero rating tactics that exempt an ISPs own content from usage caps, to interconnection shenanigans or anti-competitive paid prioritization.

Basically, it’s a net neutrality law in name only, ghost written by the broadband industry. And its real purpose is three fold. One, it would pre-empt the 25 (and counting) state efforts to impose real net neutrality rules in the wake of federal apathy. It would also prevent any future FCC or Congress from passing real, tough federal rules should the FCC repeal succeed in court. And finally it would even pre-empt the FCC’s 2015 net neutrality rules from being restored should ISPs and the FCC lose in the major court battle to come.

This week the broadband industry pushed its plan a little harder, prompting Louisiana Senator John Kennedy to unveil a companion version of the bill in the Senate. The bill is a mirror copy of Blackburn’s HR 4682 in the House, and again, suffers from massive loopholes that allow all manner of anti-competitive behavior. That includes letting companies engage in paid prioritization deals, allowing companies like ESPN to buy a distinct competitive advantage over smaller content creators, startups and non-profits (most Techdirt readers should understand how that’s a really, really bad idea).

Having covered this sector for the better part of my adult life, I can assure you the bill Blackburn and Kennedy are pushing was ghost written by AT&T, Verizon, and Comcast lawyers and lobbyists. So it’s amusing to see Kennedy try to pretend in his press release for the bill that he’s somehow courageously standing up to telecom monopolies:

“Some cable companies and content providers aren?t going to be happy with this bill because it prohibits them from blocking and throttling web content. They won?t be able to micromanage your web surfing or punish you for downloading 50 movies each month. This bill strikes a compromise that benefits the consumer,? said Sen. Kennedy.”

Except it does nothing of the sort. The bill still allows ISPs to abuse a lack of competition by imposing arbitrary and unnecessary usage caps and overage fees. A system that not only makes broadband (and streaming video) more expensive, but allows ISPs to give their own content a leg up via zero rating. Calling a ghost-written industry bill a “compromise” is like calling a punch to the nose “healthy negotiations.”

As has traditionally been the case with ISP allies pushing garbage legislation, Kennedy then tries to insist that anybody that refuses to support his industry-favored bill isn’t “serious” about protecting net neutrality:

“If the Democrats are serious about this issue and finding a permanent solution, then they should come to the table and work with me and Rep. Blackburn on these bills. Does this bill resolve every issue in the net neutrality debate? No, it doesn?t. It’s not a silver bullet. But it’s a good start.”

But it’s not a good start, either. It’s always worth repeating that net neutrality isn’t a “partisan” problem, it’s just framed that way by ISP lobbyists to sow division and stall progress on meaningful rules. It’s disingenuous to pretend this is an above-board effort to compromise when the bill’s real purpose is to prevent real rules from taking root. This is an AT&T and Comcast-backed policy play, and neither they nor their Congressional marionettes will allow changes to this legislation that could possibly prevent these companies from abusing the lack of broadband competition for further anti-competitive financial gain (the only thing this has ever been about).

Fortunately most net neutrality advocates in Congress seem to see these bills for what they are, and have steered clear. But as the telecom industry’s worries over losing in court grow, you’re going to see a growing drumbeat of farmed support for a “legislative compromise” that will be anything but. The best chance for restoring net neutrality rests with the courts. Failing that, it rests with voting out ISP lackeys in the midterms and thereafter, replacing them with lawmakers that actually respect the will of the public and the bipartisan quest for a healthy, competitive internet.

Filed Under: congress, fake laws, fcc, john kennedy, net neutrality

Five Senators Agree: Search Engines Should Censor Drug Information

from the foot-in-the-door-for-greater-government-control-of-web-content dept

The US government would like to be involved in the web censorship business. The anti-sex trafficking bill recently passed by the House would do just that, forcing service providers to pre-censor possibly harmless content out of fear of being sued for the criminal acts of private citizens. Much has been made recently of “fake news” and its distribution via Russian bots, with some suggesting legislation is the answer to a problem no one seems to be able to define. This too would be a form of censorship, forcing social media platforms to make snap decisions about new users and terminate accounts that seem too automated or too willing to distribute content Congressional reps feel is “fake.”

For the most part, legislation isn’t in the making. Instead, reps are hoping to shame, nudge, and coerce tech companies into self-censorship. This keeps the government’s hands clean, but there’s always the threat of a legal mandate backing legislators’ suggestions.

Key critic of Russian bots and social media companies in general — Senator Dianne Feinstein — has signed a handful of letters asking four major tech companies to start censoring drug-related material. Her co-signers on these ridiculous letters are Chuck Grassley, Amy Klobuchar, John Kennedy, and Sheldon Whitehouse. As members of the Senate Caucus on International Narcotic Control, they apparently believe Microsoft, Yahoo (lol), Pinterest, and Google should start preventing users for searching for drug information. (h/t Tom Angell)

The letters [PDFs here: Google, Yahoo, Microsoft, Pinterest] all discuss the search results returned when people search for information on buying drugs. (For instance, “buy percocet online.”) But the letter doesn’t limit itself to asking these companies to ensure only legitimate sites show up in the search results. It actually asks the companies to censor all results for drug information.

The senators specifically urge Google, Microsoft, Yahoo and Pinterest to take the following steps in helping us fight the opioid crisis:

It’s the second bullet point that’s key. It simply says “disable the ability to search for illicit drugs.” There’s no way to comply with that directive that won’t result in the disappearance of useful information needed by thousands of search engine users. As Angell points out in this tweet, this would possibly cause information about drug interactions to be delisted. On top of that, students often need to research illegal drugs for class assignments and term papers. Authors and journalists also need access to a variety of drug info, including various ways they can be purchased online. Law enforcement Googles stuff just like the rest of us and its ability to track down purveyors of illegal drugs would be harmed if it was all pushed off the open web.

Those seeking to buy illegal drugs would find other ways of accomplishing this even if the info disappears. The so-called dark web is an off-the-radar option that many are using already. A whole host of useful info is in danger of being removed simply because questionable purveyors of prescription drugs have found a way to game search engine algorithms.

All of the companies receiving letters already have policies in place to restrict the illicit sale of drugs. They also have policies in place to forward pertinent info to law enforcement agencies. So, companies are already doing much of what is asked, but these senators feel the mere existence of questionable sites in search results makes these companies “facilitators” of illegal drug sales.

If SESTA is signed into law, it will make it that much easier for the government to demand similar legislation targeting opioid distribution. It will allow the government to claw back more of the immunity granted to service providers with the passage of the Communications Decency Act. The more holes drilled into Section 230 by legislation, the easier it is to remove it entirely, and paint targets on the back of search engines and social media platforms.

It’s also dangerous to suggest companies need to set up dedicated 24/7 service for law enforcement agencies. This will only encourage law enforcement to bypass legal protections set up by previous legislation and lean on companies already feeling the heat from the government’s increasingly-insane reaction to opioid overdoses. Warrants will seem unnecessary when legislators in DC are saying tech companies must be more responsive to law enforcement than they already are.

A suggestion from the government to start censoring search results is exactly that: censorship. The government may not be mandating it, but this is nothing like a concerned citizens group asking for more policing of search results. There’s the threat of legislation and other government action propelling it. Even if these senators aren’t mandating policy changes, they’re still using the weight of their position to compel alteration of search results.

Filed Under: amy klobuchar, censorship, chuck grassley, dianne feinstein, drugs, first amendment, free speech, john kennedy, search, search engines, sheldon whitehouse
Companies: google, microsoft, pinterest, yahoo

Lindsay Lohan's Parents Want Her To Sue A Senator Who Made Fun Of Lindsay

from the that's-not-how-any-of-this-works dept

Over the past few years we’ve written about some really dumb lawsuits (or threats of lawsuits) filed by actress Lindsay Lohan. There was that time she sued E*Trade for $100 million because it had a baby in its commercial, named Lindsey, who was described as a “boyfriend-stealing milkaholic,” which she insisted must be a reference to her (think about that one for a second…). Or there was the time she claimed that a jewelry store releasing surveillance tape footage of her stealing a necklace violated her publicity rights. Then she sued the rapper Pitbull for a lyric “I got it locked up like Lindsay Lohan” (and, bizarrely, that one included accusations of a plagiarized filing by her lawyer. And, of course, most famously, Lohan spent years battling Take Two Interactive, claiming a ditzy starlet character in Grand Theft Auto was also a violation of her publicity rights.

Apparently she comes by this apparent proclivity to threaten and/or file nutty lawsuits honestly. Because her parents were reported as threatening to sue a US Senator for making a reference during a hearing to Linsday Lohan. They later “clarified” that they would not be the plaintiffs, but that they’re encouraging Lindsay to sue. Here’s the original report, though:

Michael and Dina Lohan are planning to sue Sen. John Kennedy (R-Louisiana) over the ?slanderous comments? that he made about their daughter, actress Lindsay Lohan, on Wednesday during a congressional hearing on the Equifax data breach.

The comments occurred as Richard Smith, the former CEO of Equifax, the credit reporting company that was hacked last month, was being questioned about signing a $7.25 million IRS contract for identity verification services. The deal could reap profits for the company as a result of the hack.

?Why in the world should you get a no-bid contract right now?? Sen. Ben Sasse (R-Nebraska) asked Smith. Kennedy added, ?You realize to many Americans right now, that looks like we?re giving Lindsay Lohan the keys to the minibar.? Smith paused for a moment before responding, ?I understand your point.? The ?Mean Girls? star, originally of Cold Spring Harbor and Merrick, has spoken about her past struggles with drugs and alcohol.

So, uh, let us count the many, many, many ways in which this is not “slanderous.” (And we originally had the fact that Lohan’s parents had no standing to sue, but have removed that since they’ve clarified they just want her to sue).

  1. It was a figure of speech, not a false statement of fact about Lohan.
  2. Even if there were a false statement of fact (there wasn’t) there’s no way that such a statement meets the “actual malice” claim — meaning that it was done with knowing falsity or with reckless disregard for the truth.
  3. Under the Westfall Act, everyone in Congress is effectively immune from defamation lawsuits for things they say as part of their job — especially when said on the floor or in a committee hearing.
  4. And, again, for emphasis, Senator Kennedy didn’t say anything defamatory about Lohan.

Who knows if she’ll actually go ahead and sue, but Michael Lohan insists that he’s trying to find a lawyer to handle this, and told the site “Gossip Cop” (linked above) that merely associating Linsday’s name with Equifax is what he found to be slanderous.

?Dina and I are seeking legal counsel for Lindsay regarding the slanderous comments and unprofessional behavior of Senator John Kennedy (R-La.),? he says. ?His comment and analogy was inappropriate, slanderous and unwarranted. How dare he associate Lindsay with this case? Tell me, does he have a family member or friend with a former addiction problem? Wow, and he?s a senator??

Hopefully, whatever lawyer he finds explains to him that this is not at all how defamation works. In his updated statement to Gossip Cop, he confuses matters even more:

?While Dina and I realize we can?t sue Senator Kennedy for his bullying statements, Lindsay can. I advised her to seek counsel through a friend who is a well-known federal attorney in New Orleans.? He adds, ?This has got to stop. Lindsay has turned her life around and does wonderful humanitarian work.?

Again, even assuming that it’s true that Linsday has “turned her life around” (good for her), that has nothing to do with whether or not she can sue over the Senator’s statement. Unfortunately, it appears that Lindsay may actually be listening to her parents on this one. She tweeted the following:

It’s a picture of her holding up a water bottle, and saying: “This is the only thing I keep in my mini bar these days – glad I found lawyer.com they are helping me out.” It also includes a winking emoji and a blowing a kiss emoji — which, we hope, means she’s making fun of the situation, rather than following through with an actual lawyer.

Filed Under: defamation, dina lohan, free speech, john kennedy, lindsay lohan, michael lohan