mike lee – Techdirt (original) (raw)

Senate To Kids: We’ll Listen To You When You Agree With Us On KOSA

from the listen-to-the-children...-not-those-kids dept

Apparently, Congress only “listens to the children” when they agree with what the kids are saying. As soon as some kids oppose something like KOSA, their views no longer count.

It’s no surprise given the way things were going, but the Senate today overwhelmingly passed KOSA by a 91 to 3 vote. The three no votes were from Senators Ron Wyden, Rand Paul, and Mike Lee.

There are still big questions about whether the House will follow suit, and, if so, how different their bill would be, and how the bills from the two chambers would be reconciled, but this is a step closer to KOSA becoming law, and creating all of the many problems people have been highlighting about it for years.

One thing I wanted to note, though, is how cynical the politicians supporting this have been. It’s become pretty typical for senators to roll out “example kids” as a kind of prop as for why they have to pass these bills. They will have stories about horrible things that happened, but with no clear explanation for how this bill would actually prevent that bad thing, and while totally ignoring the many other bad things the bill would cause.

In the case of KOSA, we’ve already highlighted how it would do harm to all sorts of information and tools that are used to help and protect kids. The most obvious example is LGBTQ+ kids, who often use the internet to help find their identity or to communicate with others who might feel isolated in their physical communities. Indeed, GOP support for KOSA was conditioned on the idea that the law would be used to suppress LGBTQ+ related content.

But, I did find it notable that, after all of the pro-KOSA team using kids as props to vote for the bill, how little attention was given last week to the ACLU sending hundreds of students to Congress to tell them how much KOSA would harm them.

Last week, the American Civil Liberties Union sent 300 high school students to Capitol Hill to lobby against the Kids Online Safety Act, a bill meant to protect children online.

The teenagers told the staffs of 85 lawmakers that the legislation could censor important conversations, particularly among marginalized groups like L.G.B.T.Q. communities.

“We live on the internet, and we are afraid that important information we’ve accessed all our lives will no longer be available,” said Anjali Verma, a 17-year-old rising high school senior from Bucks County, Pa., who was part of the student lobbying campaign. “Regardless of your political perspective, this looks like a censorship bill.”

But somehow, that perspective gets mostly ignored in all of this.

It would have been nice to have had an actual discussion on the policy challenges here, but from the beginning, KOSA co-sponsors Richard Blumenthal and Marsha Blackburn refused to take any of the concerns about the bill seriously. They frequently insisted that any criticism of the bill was just “big tech” talking points.

And, while they made cosmetic changes to try to appease some, the bill does not (and cannot) fix its fundamental problems. The bill is, fundamentally at its heart, a bill that is about censorship. And, while it does not directly demand censorship, the easiest and safest way to comply with the law will be to takedown whatever culture war hot topic politicians don’t like.

It’s kind of incredible that many of those who voted for the bill today were big supporters of the Missouri case against the administration (including Missouri’s Attorney General who brought that suit, Eric Schmitt, who voted in favor of KOSA today). So, apparently, according to Schmitt, governments should never try to influence how social media companies decide to take down content, but also government should have the power to take enforcement action against companies that don’t take down content the FTC decides is harmful.

There is a tremendous amount of hypocrisy here. And it would be nice if someone asked the senators voting in favor of this law why they were going against the wishes of all the kids who visited the Hill last week. After all, that’s what the senators who trotted out kids on the other side tried to do to those few senators who pointed out the flaws in this terrible law.

Filed Under: child safety, kids, kosa, mike lee, rand paul, ron wyden, senate, think of the children

Protect Yourself From Sen. Mike Lee’s Anti-Porn PROTECT Act

If you work for a living, do you feel coerced into doing your job? According to Senator Mike Lee, if you have anything to do with pornography, and need to earn money in the industry, it must be coercion at play.

While the world continues to be fooled by the Kids Online Safety Act’s false promises of a child-proof internet made entirely out of Roblox gift cards, Sen. Mike Lee of Utah is pimping out his latest proposal: the Preventing Rampant Online Technological and Criminal Trafficking (PROTECT) Act.

According to Lee, the act is meant to hold large technology companies accountable for rampant cases of image-based sexual abuse on the internet. While the intentions may sound reasonable, the actual act is an unenforceable hodgepodge of bad ideas.

This isn’t surprising. Mike Lee is known for his idealistic, do-nothing internet safety bills. Lee has, for example, tried pushing his so-called Interstate Obscenity Definition Act, which would define a national standard for obscenity, without the Miller test, in the spirit of the antiquated, unconstitutional Comstock laws.

He also introduced the SCREEN Act, which is his attempt to implement national age verification requirements. He’s a bleeding heart for the “protect the kids” crowds that are essentially anti-porn, pro-censorship advocates.

The PROTECT Act takes some of the worst elements of Lee’s previous bills and wraps them in a new censorship package.

The bill requires web platforms to verify the ages of individuals who appear in sexually explicit imagery. This is presented as a measure to counter child sexual abuse material (CSAM) and non-consensual intimate imagery (NCII) online.

The U.S. Department of Justice already enforces strict federal obscenity laws. In the adult entertainment industry, producers of consensual, legal pornography must verify the age of participants and retain those records through a custodian of records. That custodian is usually a lawyer, senior executive, or c-suite member, like a CEO. Not keeping or falsifying the records could lead to civil and criminal penalties, including violations of child sexual abuse laws.

If Sen. Lee gets his way with the PROTECT Act, this legal standard would apply to virtually every web platform.

This includes platforms owned by Meta, like Facebook and Instagram. A press release from Sen. Lee’s office on January 31 features an excerpt of a hearing between Meta CEO Mark Zuckerberg and himself to illustrate big tech’s shortcomings.

But one issue in the bill that drew my attention is the section on “coerced consent.”

This term defines consent to engage in sexual activity due to coercion, but with a wildly broad definition of “coercion.” To put it simply, if the act becomes law, the act of paying a porn performer or adult content creator is a crime within certain parameters and conditions.

As worded, the bill would invalidate consensual sex work:

“[C]oerced consent” means purported consent obtained from a person— (A) through fraud, duress, misrepresentation, undue influence, or nondisclosure; (B) who lacks capacity; or (C) though exploiting or leveraging the person’s—(i) immigration status;(ii) pregnancy;(iii) disability;(iv) addiction;(v) juvenile status; or (vi) economic circumstances.

Under this language, “economic circumstances” could legally invalidate consent to appear in a legal porn scene. If a performer needed the money from an adult content production for paying for rent, groceries, health care coverage, or child care fees, under Lee’s law, that could mean they could not give consent. Any consent due to such “economic circumstances” could be deemed coercion.

This definition completely outlaws consensual and legal pornography production, which is otherwise protected under the First Amendment.

The bill also invalidates consent based on immigration status, pregnancy, disability, addiction, or juvenile status. Current law already bans those under 18 from appearing in commercial pornography. Depicting an underage individual is CSAM and considered a sex crime. Minors already cannot legally consent, especially in imagery.

Coerced consent doctrine complicates the already clear standard of coercion versus consent, including non-consensual imagery. This is clearly anti-pornography lawmaking, pretending to be about coercion.

This is obvious in just looking over who supports the PROTECT Act, including the socially conservative American Principles Project, affiliated with the Heritage Foundation’s Project 2025 coalition and the far-right campaign to outlaw legal porn completely.

The other group that endorsed the bill is the National Center on Sexual Exploitation. The center sells itself as non-partisan and non-religious, but is notorious for backing Christian nationalists and anti-porn policies, labeling magazines like Cosmopolitan as “pornographic.” The PROTECT Act is a pipe dream.

Michael McGrady covers the legal and tech side of the online porn business, among other topics.

Filed Under: adult content, coerced consent, consent, mike lee, obscenity, pornography, protect act

Senate Undercuts Section 702 Reform Efforts By Stapling Blanket Approval To A Must-Pass Budget Bill

from the no-debate-allowed dept

The most serious opposition to extending Section 702 surveillance authorities since the immediate aftermath of the Snowden leaks came from a perhaps-unexpected source: House Republicans.

Of course, this isn’t an altruistic effort. This is purely politically motivated, driven by abuses of surveillance authorities by the FBI. The FBI has always done this. It just so happens that this time, Republicans and Trump acolytes got wrapped up in the FBI’s perpetual abuses of its FISA powers.

One would have hoped for a more unified opposition. But the periodic renewal of executive surveillance powers is always a political plaything, often opposed by those who don’t have their guy in the White House and supported by those who do. This was simply more of the same, only more so, since Republicans are now more willing than ever to engage in paper-waving and saber-rattling, especially if doing so might ingratiate them with a voting base willing to engage in insurrection to give their favorite lame duck president another shift at the wheel of the nation.

Also, as usual, Senator Ron Wyden and other privacy-focused legislators have offered their own opposition to clean renewals of surveillance powers. Section 702 expires at the end of the year, and these legislators hoped to head that off by introducing an expansive set of reforms that might force 702 to be a bit more constitutionally compliant.

The Government Surveillance Reform Act — sponsored by Roy Wyden, Mike Lee, Warren Davidson, and Zoe Lofgren — would have altered the most often-abused aspects of Section 702 surveillance authorities.

The bill’s reforms include:

Those reforms would hopefully deter the FBI’s abuse of these powers, as well as introduce a host of new protections for Americans’ data, no matter which third party is doing the collection. The Third Party Doctrine would have been significantly altered by this effort, codifying protections the federal court system has been extremely reluctant to extend to the people paying their salaries in hopes of seeing it act as a check on government power.

But this effort, which has garnered the support of nearly 20 legislators and nearly two dozen rights groups, no longer matters. At least not for the moment. There’s a chance this bill could become law in the future, but it appears 2023 will come to a close like it has every year has since these powers were first introduced: with a clean re-authorization of controversial, constantly abused surveillance powers.

As Dell Cameron reports for Wired, the Senate has effectively taken Section 702 off the legislative playing field. With the year closing out, federal legislators must pass a budget bill to keep the government operational. And, as is always the case with “must-pass” bills, legislators are scurrying to attach their pet projects to a bill that has to be approved to keep thousands of government employees employed and hundreds of government services operational.

A senior congressional aide tells WIRED that leadership offices and judiciary sources have both disclosed that discussions are underway about saving the Section 702 program in the short term by attaching an amendment extending it to a bill that is sorely needed to extend federal funding and avert a government shutdown one week from now.

A zero-reform extension of Section 702 is now attached to the budget bill like a privacy-destroying remora. And while it’s sure to generate some opposition from those opposed to clean re-authorization (including several Republicans), it’s unlikely to be detached if doing so means a government shutdown.

Once again, the discussion is no longer about whether or not the powers are justified or often abused. Instead, it just more of the same old partisan bullshit with a powerful Democrat attaching the rider to the budget bill while less powerful Republicans (at least in this instance) offer up ineffective opposition.

An aide to Jim Jordan, the Republican chair of the House Judiciary Committee, said Jordan was firmly on the side of the reformers and would not support extending 702 through a temporary measure. Chuck Schumer, the senate majority leader, did not respond to a request for comment Thursday afternoon.

This opposition might be vocal, but it’s hardly useful. Republicans are no more willing than Democrats to be seen as the driving force behind a government shutdown. And both parties have used this tactic — the attachment of something reprehensible to yearly budget bills — to push legislative agendas past their political opponents.

And that means a power that is supposed to be used to target foreign subjects of interest will continue to be used to engage in domestic surveillance.

While the NSA is not allowed to target the communications of “US persons” (an umbrella term for US citizens, legal residents, and corporations), the government has long been permitted to query the database for information on US persons without obtaining warrants.

Status quo has always been the name of the game. While these powers may experience periodic resistance, at the end of the day both parties (not counting those whose opposition has been loud and sustained) want the Executive Branch to have these powers available. Even if it sucks that their opponents are presiding over them at the moment, the next election could swing power the other way, giving them the opportunity to helm the USS Surveillance. As long as surveillance authorities continue to be politically useful, we can expect the same sort of futile, often meaningless pushing and pulling the next time they’re up for renewal.

Filed Under: backdoor searches, chuck schumer, data brokers, eo 12333, fbi, fisa, fisc, government surveillance reform act, jim jordan, mass surveillance, mike lee, nsa, ron wyden, section 702, surveillance, warren davidson, zoe lofgren

It’s Wrong For Politicians To Announce Plans To Punish Companies For Speech, No Matter Who Does It

from the stop-it dept

I feel like I keep needing to write this, but once again, no matter who does it and no matter which company they’re targeting, it’s wrong for politicians to promise to punish companies for their speech. For some reason, many people’s position on this point changes based on whether or not they like or dislike the politician, and whether or not they like or dislike the company. But it’s wrong.

It’s wrong when Senators Ted Cruz and Mike Lee go after Major League Baseball for its speech. It’s wrong when Senator Elizabeth Warren threatens Amazon for its speech. It’s wrong when Senator Marsha Blackburn (and a ton of others) threaten Disney for its speech. It’s wrong when White House officials threaten Facebook for its speech. And it’s wrong when Rep. Ken Buck threatens Apple for its speech.

All of this is grandstanding nonsense, but it’s designed to suppress speech. It’s designed to punish companies for speech that these elected officials dislike. And that’s even if the companies have said something stupid or acted in a way that deserves a regulatory response. By positioning any response as retaliation for speech, these politicians are fundamentally going against the 1st Amendment.

Some have argued that these retaliatory threats don’t amount to an actual 1st Amendment violation because a single politician can’t pass legislation by themselves. But you don’t need to pass legislation to violate the 1st Amendment. Indeed, in Bantam Books v. Sullivan the Supreme Court noted that merely informing someone of “objectionable” speech could violate the 1st Amendment.

While not an exact match, in that case book distributors were informed by a Commission of books that the Commission felt were “objectionable”, with the vague threat that if the distribution went ahead, then some sort of legal punishment might follow. The Court not only found that this violated the 1st Amendment, but that in some ways, the mere threat was worse than if an actual censorial regulation had been put in place. Because when it’s just more vague statements there is less definition in how to appeal, and much greater likelihood of simply over-censoring.

Unfortunately, this now seems to have become the norm on both sides of the political aisle. Browbeat companies for their speech, and threaten to pass regulations (even if those regulations might make sense absent the question of retaliation) in response to the speech. This only serves to put pressure on companies to be silent — which appears to be what these politicians want.

And it is that wish for silence, and the implicit threat in response to speech, that is so problematic.

Even in the cases where you might agree with the underlying regulatory proposal, you should be against these threats because they actually make the regulatory proposals that much less likely to be effective, because companies will be able to challenge them in court as violating the 1st Amendment due to the stated threats of these grandstanding politicians.

If you believe that certain regulations are necessary to deal with certain companies, then make that case. But if you claim that companies need to be punished because of their speech or political activity, then you are a part of the problem.

Filed Under: 1st amendment, elizabeth warren, free speech, jawboning, joe biden, ken buck, mike lee, ted cruz, threats
Companies: amazon, apple, disney, facebook, mlb

Ted Cruz, Mike Lee Join Dumb, Baseless GOP Quest To Pretend OAN Was Unfairly Censored

from the conspiratorial-gibberish dept

Fri, Mar 25th 2022 05:44am - Karl Bode

So we’ve already noted how OAN was booted off of the DirecTV lineup, severing a massive mainstream distribution avenue for the conspiracy and fantasy channel. DirecTV, recently spun off by AT&T, made the decision because the channel, despite all the attention, really wasn’t being watched very much.

Angry that a major source of GOP propaganda was no longer being pumped into millions of homes, both OAN and the GOP have been engaged in a silly quest to try and pretend that the decision was somehow unfair, censorial, or the result of partisan shenanigans.

First OAN had its anchors attack a Black AT&T board member and former Democratic FCC official, in a bizarre attempt to make it seem like DirecTV’s decision was politically and racially motivated. Then it filed suit against DirecTV, insisting that the dying satellite TV company was using its “unchecked influence and power_” (lol) to “_unlawfully destroy an independent, family-run business.”

Then six GOP AGs piled on, sending a letter to DirecTV accusing the company of trying to censor conservatives. It’s like a big tray of bullshit lasagna.

Now this week, Senators Mike Cruz and Mike Lee have tried their best to get their faces on TV as part of this stage play, penning a latter to AT&T accusing it of participating in a conspiracy with Dominion Voting Systems (which is currently suing OAN for spreading unfounded election fraud claims):

If you cannot see the embedded image, it’s a letter from Lee and Cruz to AT&T’s board of directors and reads as follows:

We write to you with grave concern for the future of journalism and political discourse in America. Specifically, the following facts have come to our attention:

1. One American News Network (“OANN”) is being sued for alleged defamation by Dominion Voting Systems.

2. Dominion Voting Systems is owned by Staple Street Capital.

3. William Kennard is on the executive board of Staple Street Capital.

4. William Kennard is also the Chairman of AT&T’s board of directors.

5. AT&T owns 70% of DirecTV, and controls two seats on DirecTV’s board of directors.

6. DirecTV has decided not to renew its contract with OANN.

These facts raise serious questions about the role of political influence in DirecTV’s programming decisions, as well as whether AT&T’s Chairman has allowed personal financial considerations to influence his oversight of a company in which AT&T holds a majority share–possibly in conflict with his fiduciary obligations to AT&T shareholders.

We request that you respond within 10 business days to the following question: Did any employee or agent of AT&T at any time convey or suggest to any employee or agent of DirecTV an instruction or request not to renew OANN?

We appreciate your urgent attention to this inquiry, and look forward to receiving your prompt reply.

In short, the dynamic duo imply that because William Kennard, the Chairman of AT&T’s board of directors, is also on the board of private equity firm Staple Street Capital (which owns Dominion Voting Systems), this must all be some grand conspiracy to kick OAN off of DirecTV, as if Kennard can single handedly determine all of AT&T’s business proposals by himself.

In reality, OAN was kicked off of DirecTV’s lineup because not that many people watch the channel. DirecTV was spun off by AT&T into a new joint venture with private equity firm TPG Capital, and the new leadership simply didn’t think the profitability to headache ratio was worth renewing a contract. That’s it.

Remember that AT&T not only funded the creation of OAN, reports suggest it came up with the idea. It only backed away from DirecTV because its bungled $200 billion megamerger spree left it desperate for cash. TPG came in, and the focus was obviously on greater fiscal responsibility.

Cable and broadcast executives aren’t the most ethical bunch. As your cable TV channel lineup makes pretty clear, they’ll air any old bullshit provided it makes them money and doesn’t get them into legal hot water. OAN not only wasn’t really particularly popular, its unhinged claims of electoral fraud and obnoxious COVID conspiracies made the channel not worth the trouble, even for them.

Even if DirecTV axed OAN because of its content, there’s nothing illegal there. There’s nothing requiring that DirecTV mandate viewpoint neutrality across its lineup. It’s the company’s prerogative as a business to do business with whoever they’d like, something the Conservative party, you might recall, used to prattle on about at great length about before their noggins were filled with Trump pudding.

An ordinary business decision got distorted into a grand conspiracy by the Trump GOP to agitate their increasingly conspiratorial base and feed the gibberish claim that the modern Trump GOP (whose rants, opinions, and conspiracies can be found absolutely everywhere, all the time) are somehow being unfairly silenced. It’s dumb victimization porn and propaganda all the way down.

Filed Under: cable news, cable tv, conspiracy theories, disinformation, election fraud, gop, mike lee, news, propaganda, ted cruz, trump, tv, william kennard
Companies: at&t, directv, oan, oann

The Top Ten Mistakes Senators Made During Today's EARN IT Markup

from the getting-everything-wrong dept

Today, the Senate Judiciary Committee unanimously approved the EARN IT Act and sent that legislation to the Senate floor. As drafted, the bill will be a disaster. Only by monitoring what users communicate could tech services avoid vast new liability, and only by abandoning, or compromising, end-to-end encryption, could they implement such monitoring. Thus, the bill poses a dire threat to the privacy, security and safety of law-abiding Internet users around the world, especially those whose lives depend on having messaging tools that governments cannot crack. Aiding such dissidents is precisely why it was the U.S. government that initially funded the development of the end-to-end encryption (E2EE) now found in Signal, Whatsapp and other such tools. Even worse, the bill will do the opposite of what it claims: instead of helping law enforcement crack down on child sexual abuse material (CSAM), the bill will actually help the most odious criminals walk free.

As with the July 2020 markup of the last Congress’s version of this bill, the vote was unanimous. This time, no amendments were adopted; indeed, none were even put up for a vote. We knew there wouldn’t be much time for discussion because Sen. Dick Durbin kicked off the discussion by noting that Sen. Lindsey Graham would have to leave soon for a floor vote.

The Committee didn’t bother holding a hearing on the bill before rushing it to markup. The one and only hearing on the bill occurred just six days after its introduction back in March 2020. The Committee thereafter made major (but largely cosmetic) changes to the bill, leaving its Members more confused than ever about what the bill actually does. Today’s markup was a singular low-point in the history of what is supposed to be one of the most serious bodies in Congress. It showed that there is nothing remotely judicious about the Judiciary Committee; that most of its members have little understanding of the Internet and even less of how the, ahem, judiciary actually works; and, saddest of all, that they simply do not care.

Here are the top ten legal and technical mistakes the Committee made today.

Mistake #1: “Encryption Is not Threatened by This Bill”

Strong encryption is essential to online life today. It protects our commerce and our communications from the prying eyes of criminals, hostile authorian regimes and other malicious actors.

Sen. Richard Blumenthal called encryption a “red herring,” relying on his work with Sen. Leahy’s office to implement language from his 2020 amendment to the previous version of EARN IT (even as he admitted to a reporter that encryption was a target). Leahy’s 2020 amendment aimed to preserve companies’ ability to offer secure encryption in their products by providing that a company could not be found in violation of the law because it utilized secure encryption, doesn’t have the ability to decrypt communications, or fails to undermine the security of their encryption (for example, by building in a backdoor for use by law enforcement).

But while the 2022 EARN IT Act contains the same list of protected activities, the authors snuck in new language that undermines that very protection. This version of the bill says that those activities can’t be an independent basis of liability, but that courts can consider them as evidence while proving the civil and criminal claims permitted by the bill’s provisions. That’s a big deal. EARN IT opens the door to liability under an enormous number of state civil and criminal laws, some of which require (or could require, if state legislatures so choose) a showing that a company was only reckless in its actions—a far lower showing than federal law’s requirement that a defendant have acted “knowingly.” If a court can consider the use of encryption, or failure to create security flaws in that encryption, as evidence that a company was “reckless,” it is effectively the same as imposing liability for encryption itself. No sane company would take the chance of being found liable for transmitting CSAM; they’ll just stop offering strong encryption instead.

Mistake #2: The Bill’s Sponsors Readily Conceded that EARN IT Would Coerce Monitoring for CSAM

EARN IT’s sponsors repeatedly complained that tech companies aren’t doing enough to monitor for CSAM—and that their goal was to force them to do more. As Sen. Blumenthal noted, free software (PhotoDNA) makes it easy to detect CSAM, and it’s simply outrageous that some sites aren’t even using it. He didn’t get specific but we will: both Parler and Gettr, the alternative social networks favored by the MAGA right, have refused to use PhotoDNA. When asked about it, Parler’s COO told The Washington Post: “I don’t look for that content, so why should I know it exists?” The Stanford Internet Observatory’s David Thiel responded:

This, frankly, is just reckless. You cannot run a social media site, particularly one targeted to include content forbidden from mainstream platforms, solely with voluntary flagging. Implementing PhotoDNA to prevent CEI is the bare minimum for a site allowing image uploads. 9/10

— David Thiel (@elegant_wallaby) August 12, 2021

We agree completely—morally. So why, as Berin asked when EARN IT was first introduced, doesn’t Congress just directly mandate the use of such easy filtering tools? The answer lies in understanding why Parler and Gettr can get away with this today. Back in 2008, Congress required tech companies that become aware of CSAM to report it immediately to NCMEC, the quasi-governmental clearinghouse that administers the database of CSAM hashes used by PhotoDNA to identify known CSAM. Instead of requiring companies to monitor for CSAM, Congress said exactly the opposite: nothing in 18 U.S.C. § 2258A “shall be construed to require a provider to monitor [for CSAM].”

Why? Was Congress soft on child predators back then? Obviously not. Just the opposite: they understood that requiring tech companies to conduct searches for CSAM would make them state actors subject to the Fourth Amendment’s warrant requirement—and they didn’t want to jeopardize criminal prosecutions.

Conceding that the purpose of EARN IT Act is to coerce searches for CSAM is a mistake, a colossal one, because it invites courts to rule that searching wasn’t voluntary.

Mistake #3: The Leahy Amendment Alone Won’t Protect Privacy & Security, or Avoid Triggering the Fourth Amendment

While Sen. Leahy’s 2020 amendment was a positive step towards protecting the privacy and security of online communications, and Lee’s proposal today to revive it is welcome, it was always an incomplete solution. While it protected companies against liability for offering encryption or failing to undermine the security of their encryption, it did not protect the refusal to conduct monitoring of user communications. A company offering E2EE products might still be coerced into compromising the security of its devices by scanning user communications “client-side” (i.e., on the device) prior to encrypting sent communications or after decrypting received communications.

Apple recently proposed such a technology for such client-side scanning, raising concerns from privacy advocates and civil society groups. For its part, Apple assured that safeguards would limit use of the system to known CSAM to prevent the capability from being abused by foreign governments or rogue actors. But the capacity to conduct such surveillance presents an inherent risk of being exploited by malicious actors. Some companies may be able to successfully safeguard such surveillance architecture from misuse or exploitation. However, resources and approaches will vary across companies, and it is a virtual certainty that not all of them will be successful. And if done under coercion, create a risk that such efforts will be ruled state action requiring a warrant under the Fourth Amendment.

Our letter to the Committee proposes an easy way to expand the Leahy amendment to ensure that companies won’t be held liable for not monitoring user content: borrow language directly from Section 2258A(f).

Mistake #4: EARN IT’s Sponsors Just Don’t Understand the Fourth Amendment Problem

Sen. Blumenthal insisted, repeatedly, that EARN IT contained no explicit requirement not to use encryption. The original version of the bill would, indeed, have allowed a commission to develop “best practices” that would be “required” as conditions of “earning” back the Section 230 immunity tech companies need to operate—hence the bill’s name. But dropping that concept didn’t really make the bill less coercive because the commission and its recommendations were always a sideshow. The bill has always coerced monitoring of user communications—and, to do that, the abandonment or bypassing of strong encryption—indirectly, through the threat of vast legal liability for not doing enough to stop the spread of CSAM.

Blumenthal simply misunderstands how the courts assess whether a company is conducting unconstitutional warrantless searches as a “government actor.” “Even when a search is not required by law, … if a statute or regulation so strongly encourages a private party to conduct a search that the search is not ‘primarily the result of private initiative,’ then the Fourth Amendment applies.” U.S. v. Stevenson, 727 F.3d 826, 829 (8th Cir. 2013) (quoting Skinner v. Railway Labor Executives’ Assn, 489 U.S. 602, 615 (1989)). In that case, the court found that AOL was not a government actor because it “began using the filtering process for business reasons: to detect files that threaten the operation of AOL’s network, like malware and spam, as well as files containing what the affidavit describes as “reputational” threats, like images depicting child pornography.” AOL insisted that it “operate[d] its file-scanning program independently of any government program designed to identify either sex-offenders or images of child pornography, and the government never asked AOL to scan Stevenson’s e-mail.” Id. By contrast, every time EARN IT’s supporters explain their bill, they make clear that they intend to force companies to search user communications in ways they’re not doing today.

Mistake #2 Again: EARN IT’s Sponsors Make Clear that Coercion Is the Point

In his opening remarks today, Sen. Graham didn’t hide the ball:

“Our goal is to tell the social media companies ‘get involved and stop this crap. And if you don’t take responsibility for what’s on your platform, then Section 230 will not be there for you.’ And it’s never going to end until we change the game.”

Sen. Chris Coons added that he is “hopeful that this will send a strong signal that technology companies … need to do more.” And so on and so forth.

If they had any idea what they were doing, if they understood the Fourth Amendment issue, these Senators would never admit that they’re using liability as a cudgel to force companies to take affirmative steps to combat CSAM. By making intentions unmistakable, they’ve given the most vile criminals exactly what they need to to challenge the admissibility of CSAM evidence resulting from companies “getting involved” and “doing more.” Though some companies, concerned with negative publicity, may tell courts that they conducted searches of user communications for “business reasons,” we know what defendants will argue: the companies’ “business reason” is avoiding the wide, loose liability that EARN IT subjected them to. EARN IT’s sponsors said so.

Mistake #5: EARN IT’s Sponsors Misunderstanding How Liability Would Work

Except for Sen. Mike Lee, no one on the Committee seemed to understand what kind of liability rolling back Section 230 immunity, as EARN IT does, would create. Sen. Blumenthal repeatedly claimed that the bill requires actual knowledge. One of the bill’s amendments (the new Section 230(e)(6)(A)) would, indeed, require actual knowledge by enabling civil claims under 18 U.S.C. § 2255 “if the conduct underlying the claim constitutes a violation of section 2252 or section 2252A,” both of which contain knowledge requirements. This amendment is certainly an improvement over the original version of EARN IT, which would have explicitly allowed 2255 claims under a recklessness standard.

But the two other changes to Section 230 clearly don’t require knowledge. As Sen. Lee pointed out today, a church could be sued, or even prosecuted, simply because someone posted CSAM on its bulletin board. Multiple existing state laws already create liability based on something less than actual knowledge of CSAM. As Lee noted, a state could pass a law creating strict liability for hosting CSAM. Allowing states to hold websites liable for recklessness (or even less) while claiming that the bill requires actual knowledge is simply dishonest. All these less-than-knowledge standards will have the same result: coercing sites into monitoring user communications, and into abandoning strong encryption as an obstacle to such monitoring.

Blumenthal made it clear that this is precisely what he intends, saying: “Other states may wish to follow [those using the “recklessness” standard]. As Justice Brandeis said, states are the laboratories of democracy … and as a former state attorney general I welcome states using that flexibility. I would be loath to straightjacket them in their adoption of different standards.”

Mistake #6: “This Is a Criminal statute, This Is Not Civil Liability”

So said Sen. Lindsey Graham, apparently forgetting what his own bill says. Sen. Dianne Feinstein added her own misunderstanding, saying that she “didn’t know that there was a blanket immunity in this area of the law.” But if either of those statements were true, the EARN IT Act wouldn’t really do much at all. Section 230 has always explicitly carved out federal criminal law from its immunities; companies can already be charged for knowing distribution of child sexual abuse material (CSAM) or child sexual exploitation (CSE) under federal criminal statutes. Indeed, Backpage and its founders were criminally prosecuted even without SESTA’s 2017 changes to Section 230. If the federal government needs assistance in enforcing those laws, it could adopt Sen. Mike Lee’s amendment to permit state criminal prosecutions when the conduct would constitute a violation of federal law. Better yet, the Attorney General could use an existing federal law (28 U.S.C. § 543) to deputize state, local, and tribal prosecutors as “special attorneys” empowered to prosecute violations of federal law. Why no AG has bothered to do so yet is unclear.

What is clear is that EARN IT isn’t just about criminal law. EARN IT expressly carves out civil claims under certain federal statutes, and also under whatever state laws arguably relate to “the advertisement, promotion, presentation, distribution, or solicitation of child sexual abuse material” as defined by federal law. Those laws can and do vary, not only with respect to the substance of what is prohibited, but also the mental state required for liability. This expansive breadth of potential civil liability is part of what makes this bill so dangerous in the first place.

Mistake #7: “If They Can Censor Conservatives, They Can Stop CSAM!”

As at the 2020 markup, Sen. Lee seemed to understand most clearly how EARN IT would work, the Fourth Amendment problems it raises, and how to fix at least some of them. A former Supreme Court Clerk, Lee has a sharp legal mind, but he seems to misunderstand much of how the bill would work in practice, and how content moderation works more generally.

Lee complained that, if Big Tech companies can be so aggressive in “censoring” speech they don’t like, surely they can do the same for CSAM. He’s mixing apples and oranges in two ways. First, CSAM is the digital equivalent of radioactive waste: if a platform gains knowledge of it, it must take it down immediately and report it to NCMEC, and faces stiff criminal penalties if it doesn’t. And while “free speech” platforms like Parler and Gettr refuse to proactively monitor for CSAM (as discussed below), every mainstream service goes out of its way to stamp out CSAM on unencrypted service. Like AOL in the Stevenson case, they do so for business and reputational reasons.

By contrast no website even tries to block all “conservative” speech; rather, mainstream platforms must make difficult judgment calls about taking down politically charged content, such as Trump’s account only after he incited an insurrection in an attempted coup and misinformation about the 2020 election being stolen. Republicans are mad about where tech companies draw such lines.

Second, social media platforms can only moderate content that they can monitor. Signal can’t moderate user content and that is precisely the point: end-to-end-encryption means that no one other than the parties to a communication can see it. Unlike normal communications, which may be protected by lesser forms of “encryption,” the provider isn’t standing in the middle of the communication and it doesn’t have the keys to unlock the messages that it is passing back and forth. Yes, some users will abuse E2EE to share CSAM, but the alternative is to ban it for everyone. There simply isn’t a middle ground.

There may indeed be more that some tech companies could do about _content they can see—_both public content like social media posts and private content like messages (protected by something less than E2EE). But their being aggressive about, say, misinformation about COVID or the 2020 election has nothing whatsoever to do with the cold, hard reality that they can’t moderate content protected by strong encryption.

It’s hard to tell whether Lee understands these distinctions. Maybe not. Maybe he’s just looking to wave the bloody shirt of “censorship” again. Maybe he’s saying the same thing everyone else is saying, essentially: “Ah, yes, but if only Facebook, Apple and Google didn’t use end-to-end encryption for their messaging services, then they could monitor those for CSAM just like they monitor and moderate other content!” Proposing to amend the bill to require actual knowledge under both state and federal law suggests he doesn’t want this result, but who knows?

Mistake #8: Assuming the Fourth Amendment Won’t Require Warrants If It Applies

Visibility to the provider relates to one important legal distinction not discussed at all today—but that may well explain why the bill’s sponsors don’t seem to care about Fourth Amendment concerns. It’s an argument Senate staffers have used to defend the bill since its introduction. Even if compulsion through vast legal liability did make tech companies government actors, the Fourth Amendment requires a warrant only for searches of material for which users have a reasonable expectation of privacy. Kyllo v. United States, 533 U.S. 27, 33 (2001); see Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Courts long held that users had no such expectations for digital messages like email held by third parties.

But that began to change in 2010. If searches of emails trigger the Fourth Amendment—and U.S. v. Warshak, 631 F.3d 266 (6th Cir. 2010) said they do—searches of private messaging certainly would. The entire purpose of E2EE is to give users rock-solid expectations of privacy in their communications. More recently, the Supreme Court has said that, “given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection.” Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018). These cases draw the line Sen. Lee is missing: no, of course users don’t have reasonable expectations of privacy in public social media posts—which is what he’s talking about when he points to “censorship” of conservative speech. EARN IT could avoid the Fourth Amendment by focusing on content providers can see, but it doesn’t, because it’s intended to force companies to be able to see all user communications.

Mistake #9: What They didn’t Discuss: Anonymous Speech

The Committee didn’t discuss how EARN IT would affect speech protected by the First Amendment. No, of course CSAM isn’t protected speech, but the bill would affect lawful speech by law-abiding citizens—primarily by restricting anonymous speech. Critically, EARN IT doesn’t just create liability for trafficking in CSAM. The bill also creates liability for failing to stop communications that “solicit” or “promote” CSAM. Software like PhotoDNA can flag CSAM (by matching cryptographic hashes to known images in NCMEC’s database) but identifying “solicitation” or “promotion” is infinitely more complicated. Every flirtatious conversation between two adult users could be “solicitation” of CSAM—or it might be two adults doing adult things. (Adults sext each other—a lot. Get over it!) But “on the Internet, nobody knows you’re a dog”—and there’s no sure way to distinguish between adults and children.

The federal government tried to do just that in the Communications Decency Act (CDA) of 1996 (nearly all of which, except Section 230, was struck down) and the Child Online Protection Act (COPA) of 1998. Both laws were struck down as infringing on the First Amendment right to accessing lawful content anonymously. EARN IT accomplishes much the same thing indirectly, the same way it attacks encryption: basing liability on anything less than knowledge means you can be sued for not actively monitoring, or for not age-verifying users, especially when the risks are particularly high (such as when you “should have known” you were dealing with minor users).

Indeed, EARN IT is even more constitutionally suspect. At least COPA focused on content deemed “harmful to minors.” Instead of requiring age-gating for sites that offered porn and sex-related content (e.g., LGBTQ teen health), EARN IT would affect all users of private communications services, regardless of the nature of the content they access or exchange. Again, the point of E2EE is that the service provider has no way of knowing whether messages are innocent chatter or CSAM.

EARN IT could raise other novel First Amendment problems. Companies could be held liable not only for failing to age-verify all users—a clear First Amendment violation— but also for failing to bar minors from using E2EE services so that their communications can be monitored or failing to use client-side monitoring on minors’ devices, and even failing to segregate adults from minors so they can’t communicate with each other.

Without the Lee Amendment, EARN IT leaves states free to base liability on explicitly requiring age-verification or limits on what minors can do.

Mistake #10: Claiming the Bill Is “Narrowly Crafted”

If you’ve read this far, Sen. Blumenthal’s stubborn insistence that this bill is a “narrowly targeted approach” should make you laugh—or sigh. If he truly believes that, either he hasn’t adequately thought about what this bill really does or he’s so confident in his own genius that he can simply ignore the chorus of protest from civil liberties groups, privacy advocates, human rights activists, minority groups, and civil society—all of whom are saying that this bill is bad policy.

If he doesn’t truly believe what he’s saying, well… that’s another problem entirely.

Bonus Mistake!: A Postscript About the Real CSAM problem

Lee never mentioned that the only significant social media services that don’t take basic measures to identify and block CSAM are Parler, Gettr and other fringe sites celebrated by Republicans as “neutral public fora” for “free speech.” Has any Congressional Republican sent letters to these sites asking why they refuse to use PhotoDNA?

Instead, Lee did join Rep. Ken Buck in March 2021 to interrogate Apple about its decision to take down the Parler app. Answer: Parler hadn’t bothered setting any meaningful content moderation system. Only after Parler agreed to start doing some moderation of what appeared in its Apple app (but not its website) did Apple reinstate the app.

Filed Under: 1st amendment, 4th amendment, chris coons, content moderation, csam, dianne feinstein, e2ee, earn it, encryption, lindsey graham, mike lee, monitoring, pat leahy, photodna, richard blumenthal, section 230

The Senate's Finsta Problem

from the that's-now-how-it-works dept

Earlier this year we wrote about Senator Richard Blumenthal’s viral “finsta” debacle in which he asked a Facebook executive to “end Finsta” as if (1) it was a product, or (2) it was “endable.” Some people pushed back on the mocking of Blumenthal, noting that he (or at least his staffers) actually understood what “finsta” meant, since he had given an accurate description earlier, and his staff had set up a fake Instagram account, pretending to be a young girl to see what happened. However, as we and others noted, if he actually understood “finsta” that made his demand to “end Finsta” even worse, because it meant he was calling for an end to anonymity on Instagram, which would have huge problems — especially for more marginalized people or those at risk, who have very good reasons for not using their real names on social media.

Of course, rather than learning from that debacle, Senators across the board seemed to see it as an opportunity to score some media headlines when they dragged in Instagram CEO Adam Mosseri to testify in yet another one of the Senate’s pointless, grandstanding “big tech bad” hearings last week. Senator Blumenthal brought back his finsta. On the other side of the aisle, both Senators Marsha Blackburn and Mike Lee rolled out their own finstas. And all of them were shocked, shocked, shocked, to find that sometimes they didn’t like what the algorithm recommended to them.

Except, as an article at the National Journal highlights, this little game of gotcha doesn’t make much sense and is not how good research is actually done.

Joshua Tucker, a co-director of the NYU Center for Social Media and Politics, said Senate staff don?t have the time or training to make broad inferences about how teens experience Instagram.

?In a sense these [fake accounts] are useful, because they are surfacing things that can happen on the platform,? Tucker said. ?But it?s this leap from ?it can happen? to ?this is prevalent, this is common??that?s when you need the more sophisticated research design.?

Tucker called it ?ironic? that lawmakers are deploying these fake accounts in hearings, given ongoing concerns from Blumenthal and others that ?finstas? are a menace and the fact that creating such accounts violates Instagram?s terms of service.

?These are exactly the types of protections that we are asking Congress to provide to researchers?to protect researchers who want to do research, who want to go about and find out how these platforms work, to protect them from being attacked by companies for violating terms of service,? Tucker said.

But, rather than handing access to actual researchers who can determine whether or not there’s a problem — and if there is a problem how big or how prevalent it is — Senators are instead pushing out garbage science. That is, they’re pushing anecdotal examples based on a single case set up in a way specifically designed to try to get the outcome they want.

Not surprisingly, when journalist Brendan Bordelon pointed all this out to Blumenthal’s office, it was dismissed in Blumenthal’s typically dismissive manner:

The Connecticut Democrat shrugged off the idea that there?s something ironic about his creation of a fake account, given his concerns about ?finstas? generally.

?I think it?s justified to be illustrative and then disclosed, and nothing done with it,? Blumenthal said. ?It?s not like we set it up to exist for any length of time. We set it up to see what happened, and then we shut it down.

?If I were analogizing it to law enforcement, it?s a little bit like having somebody work undercover,? he said.

It’s a misleading anecdote, and for someone who claims to be so concerned about misinformation, you’d think that Blumenthal would be careful not to create more of it.

And… that’s not even getting into the point that all of these Senators broke Instagram’s terms of service, and according to some interpretations of the law, that means they violated the CFAA. It seems like it would be a hell of a lot more productive to fix that, rather than freaking out about the other stuff.

Surely, now that Senators of both parties proudly admit to violating website TOS by creating fake accounts, they'll fix the #CFAA so courts don't keep interpreting the law to criminalize such TOS violations

Right…? ?https://t.co/VTsONbA91R

— Berin Sz?ka ? (@BerinSzoka) December 15, 2021

Filed Under: anonymity, finsta, kids, marsha blackburn, mike lee, richard blumenthal, terms of service
Companies: instagram

Sens. Cruz, Hawley & Lee Show How To Take A Good Bill Idea And Make It Blatantly Unconstitutional

from the seriously-guys? dept

Senators Ted Cruz, Josh Hawley, and Mike Lee, all hold themselves out to be “constitutional” lawyers. All graduated from law schools and went on to clerk for Supreme Court Justices (Cruz clerked for Rehnquist, Hawley for Roberts, and Lee for Alito — though before he moved to the Supreme Court). And yet, all three have shown that their support for the Constitution they swore to uphold and protect is a little wishy washy when they can build a culture war around it and get some silly press attention. The latest move is their new bill to strip Major League Baseball’s antitrust exemption.

Now, I’ve explained this before, but let me be explicit about it here, because it’s the part that people keep getting tripped up on: I think this is a good idea. It’s silly that Major League Baseball has an antitrust exemption and it should be gotten rid of. There’s no need for it and it’s bad policy that it exists. And if Senators Cruz, Hawley and Lee had simply introduced such a bill, I might even cheer it on.

But… that’s not what they did. They announced it in a manner that makes it blatantly unconstitutional, because they flat out admit that they’re doing it to punish MLB for MLB’s political expression (namely moving the All-Star Game out of Atlanta to protest Georgia’s new voting law). And the Senators don’t even try to hide this or come up with some Potemkin-style façade. They just out and out admit that they’re doing this for unconstitutional reasons:

Following Major League Baseball?s (MLB) decision to relocate the All-Star game from the state of Georgia, U.S. Sens. Ted Cruz (R-Texas), Mike Lee (R-Utah), and Josh Hawley (R-Mo.) will hold a press conference today outlining their legislation to end MLB?s special immunity from antitrust laws.

Here’s the thing that many people are missing: you can do constitutional things for unconstitutional reasons, and it makes the things you do… unconstitutional. In this case, Cruz, Lee, and Hawley are actually making it more difficult to remove MLB’s antitrust exemption, because they’ve just handed MLB an easy response should this bill go anywhere. They can run to court and say that this was clearly vindictive behavior by Congress in response to protected 1st Amendment speech.

So even if you support removing MLB’s antitrust exemption, you should be against this. Because this action, in this way, simply guarantees that if it got traction, it would get tied up in court for years solely due to the statements of Hawley, Cruz, and Lee.

It’s quite likely that none of the three actually care, of course. They’re all just grandstanding for an ignorant base who wants these Senators to embrace “cancelling” Major League Baseball for daring to… care about voting rights. And, in doing so, these three Senators show (yet again) that they’re not interested in actually doing what’s right, or what’s constitutional. They’re only interested in frothing up some grist for an ignorant base who revels in the politics of petty grievances.

Filed Under: 1st amendment, antitrust, exemption, free speech, josh hawley, mike lee, retaliation, ted cruz, voting rights
Companies: mlb

It's Apparently Bipartisan To Threaten To Punish Companies Via Antitrust Law For Speech You Don't Like

from the not-how-any-of-it-works dept

A little over a week ago, we wrote about how Senator Elizabeth Warren clearly went over the line in threatening to punish Amazon for its speech through the use of antitrust laws. As we noted (pretty clearly, though many ignored it) at the time, there may be plenty of other reasons to use antitrust laws against Amazon, but no government official should ever even jokingly suggest that he or she would use the power of the government (via antitrust) to punish an entity for speech.

In response, many Warren supporters got incredibly mad at me, insisting that because (1) Amazon is big and (2) Warren has supported this position before, then it’s perfectly fine for her to have said what she did. It was not.

On Friday, we got to see the same thing from the other side of the aisle. After Major League Baseball announced that it would move the All-Star Game out of Atlanta in protest of Georgia’s new voting law, Rep. Jeff Duncan from South Carolina, stated out loud on Twitter that he intended to punish the company by drafting legislation to remove MLB’s somewhat infamous antitrust exemption.

As we said with Warren, there may be very good reasons to remove MLB’s antitrust exemption. In fact, I’d argue there are compelling reasons to do so. But, announcing plans to do so as punishment for MLB’s clear protest over Georgia’s voting law is pretty clearly an affront to the 1st Amendment. Rep. Duncan is stating directly that he wants to punish a company for protesting a law that he agrees with. This creates a real chilling effect. It may not chill MLB directly, but it likely would chill many other companies from speaking out for fear of retaliation from Duncan and his colleagues in Congress.

It was wrong when Senator Warren did it, and it’s just as wrong with Rep. Duncan does it. It’s also wrong for Senators Ted Cruz and Mike Lee to do it, jumping on Duncan’s new bandwagon.

Punishing companies using antitrust laws (even if there are good underlying reasons to explore those antitrust issues) for their expression should never be supported, cheered on, or allowed. Just as we called on Warren to take back what she said, we now are saying Duncan, too, should take back his direct threat of punishment for speech. Unfortunately, since everything in politics these days seems to be it’s okay to punish “enemies” and to support “friends” this will never happen. But it sure would be nice if we had politicians with principles who knew that it’s wrong to punish anyone for speech, even if you disagree with their speech (and agree that the “punishment” is warranted for other reasons).

Filed Under: 1st amendment, antitrust, chilling effects, elizabeth warren, free speech, georgia, jeff duncan, mike lee, speech, ted cruz, threats, voting rights
Companies: amazon, mlb

The Senate Snowflake Grievance Committee Quizzes Tech CEOs On Tweets & Employee Viewpoints

from the this-is-not-how-any-of-this-works dept

On Wednesday morning the Senate Commerce Committee held a nearly four hour long hearing ostensibly about Section 230 with three internet CEOs: Mark Zuckerberg from Facebook, Sundar Pichai from Google, and Jack Dorsey from Twitter. The hearing went about as expected: meaning it was mostly ridiculous nonsense. You had multiple Republican Senators demanding that these CEOs explain why they had taken actions on certain content, with some silly “whataboutism” on other kinds of content where action wasn’t taken. Then you had multiple Democratic Senators demanding these CEOs explain why they hadn’t taken faster action on pretty much the same content that Republicans had complained some action had been taken on.

The shorter summary was that Republicans were demanding that their own lies and propaganda should be left alone, while Democrats demanded that lies and propaganda should be removed faster. Both of these positions are an anathema to the 1st Amendment, and the people advocating for them on both sides should be embarrassed. While each platform has the right, under the 1st Amendment, to host or not host whatever speech they want, based on whatever policies they set, Congress cannot and should not, be in the position of either telling companies what content they need to host or what content they must take down. And yet, we saw examples of both during the hearing. On the Democratic side, Senators Markey and Baldwin, among a few others, pushed the companies to take down more content. This is extremely troubling on 1st Amendment grounds. On the Republican side, many, many Senators demanded that certain content should be unblocked — in particular the NY Post’s Twitter account.

And there were a few (very limited) good points from both sides of the aisle. Senator Brian Schatz noted that the entire hearing was being done in bad faith by Senate Republicans to try to bully the companies into not removing disinformation in the final week of the election. He noted that, while he had many questions for the three CEOs, he would not participate in this “sham” by asking questions during this particular hearing. Kudos to him. On the Republican side, Senator Jerry Moran noted that changes to Section 230 were the kinds of things that the three companies before the Committee could handle, but which would hamstring smaller competitors (to be fair, Jack Dorsey made this point in his opening testimony as well).

But I wanted to focus on some specific grandstanding by a few key Senators who made particularly ridiculous statements. And, I will point out upfront that these all came from Republicans. I’m not pointing that out because I’m “biased” against them, but because of the simple objective fact that it was these Republican Senators who made the most ridiculous statements of the day. The key theme between them was a ridiculous sense of grievance, and a false belief that the company’s moderation practices unfairly targeted “conservatives.” Except nearly all of them assumed that because more Republicans were moderated, that was proof of bias — and not the idea that, perhaps, Republicans do more things that violate the policies of these companies. In the same manner that I’m picking on mostly Republican Senators here, that has more to do with their own actions, than any personal “bias.”

What was most frightening, however, in the comments from these Senators is how at home they would have been in the days of Joseph McCarthy. Multiple Senators demanded to know about the personal ideological viewpoints of people who worked for these companies. Both Dorsey and Mark Zuckerberg correctly pointed out that they do not ask their employees about their political leanings (Pichai stated that they hire from all over, implying that there was a diverse ideological pool within their workforce).

It is stunning and dangerous for Senators to be demanding to know the political leanings of employees at any particular company. Senators Mike Lee, Ron Johnson and Marsha Blackburn all asked questions along these lines. Lee, who historically has been aligned with libertarian viewpoints, completely misrepresented the content moderation policies of these companies and insisted that they disproportionately target conservatives. They do not. If conservatives are violating their policies more than others, then that’s on those people violating the policies, and not on the policies themselves. Lee also fell into the ridiculous myth that Google’s policies directly targeted conservatives in demonetizing The Federalist. As we’ve discussed multiple times, that’s utter bullshit. We received identical treatment to The Federalist. So did Slate and Buzzfeed. Lee, ridiculously, argued that the companies saying — accurately — that they do not target moderation decisions based on ideology perhaps violated laws against “unfair or deceptive trade practices.” Basically because Lee falsely believes these companies target conservative speech (because he’s so deep in his own filter bubble he doesn’t even know it hits others as well), that they’re engaging in deceptive practices.

Lee demanded that each company list “left leaning” accounts that had received similar treatment, and the various CEOs promised to get back to him, but this was a nonsense argument.

However the most ridiculous part of Lee’s grandstanding was his disingenuous framing of content moderation. He started asking about how these companies “censor” content. In the past, we’ve discussed how moderation and censorship differ, but Lee stretched the definition to insane levels:

I think the trend is clear, you almost always censor — meaning…. uh… when I use the word censor here I mean block content, fact check or label content, or demonetize websites.

In what fucking world does Senator Lee live in that fact checking is censorship? This is utter nonsense. Indeed, when Sundar Pichai actually pushed back and said “we don’t censor,” Lee jumped in obnoxiously to say that “I used the word censor as a term of art there and I defined that word.” That’s not how it works. You can’t redefine a term to mean the literal opposite of what it means “as a term of art” and then demand that everyone agrees that they “censored” when your own definition includes fact checking or responding to a statement with more speech.

Senator Ron Johnson’s time was particularly egregious. He read the following tweet into the record.

It’s a tweet from a “Mary T. Hagan” saying:

Sen Ron Johnson is my neighbor and strangled our dog, Buttons, right in front of my 4 yr old son and 3 yr old daughter. The police refuse to investigate. This is a complete lie but important to retweet and note that there are more of my lies to come.

Yes, he read that whole thing into the record, and then whined directly to Jack Dorsey that this should not have been left up, and that people might not go to the polls and vote for him if they read it. It’s hard to know where to begin on this one. Especially since it came right after Johnson was mad about other moderation choices Twitter had made to takedown content. But the most incredible bit was that the obvious point of this tweet (which seemed to fly right over Johnson’s head) is to make fun of Johnson’s own willingness over the past few months to push Russian-originated propaganda talking points, and then whine that the media won’t do anything about it and that law enforcement won’t investigate.

So, a simple question for Johnson to answer would be: if he wants this tweet removed, how about removing his own efforts at pushing unverified propagandistic nonsense about Joe Biden?

But, really, this was par for the course for so much of the hearing. Senators (both Democrats and Republicans) showing a vast misunderstanding of how content moderation works, would call up a single example of a content moderation choice and demand an explanation — often ignoring the explanations from Dorsey and Zuckerberg who would calmly explain what their policy was, why a certain piece of content did or did not violate that policy — and then scream louder as if they had found some sort of “gotcha” moment.

But honestly, the most insane moment of the hearing most likely involved Senator Marsha Blackburn from Tennessee. Blackburn has a long history of saying the complete opposite argument depending on which way the wind blows at any particular time. For example, during the net neutrality fight she screamed about how it was an example of government interference with innovation and that if we had net neutrality it would destroy “Facebook, YouTube, Twitter” (literally those three companies). Yet a few years later, she supported a bill to regulate the internet in the form of PIPA, a pro-censorship copyright bill.

Then, four years ago, she insisted that internet services had an obligation to delete “fake news.” Yet, in the hearing on Wednesday, she flipped out at the companies for trying to moderate any news at all.

And then she took it one step further, and demanded to know if a Google engineer who made fun of her was still employed at the company.

Blackburn (R-Tenn.) asked CEO Sundar Pichai whether Blake Lemoine, a senior software engineer and artificial intelligence researcher, still has a job at Google.

?He has had very unkind things to say about me and I was just wondering if you all had still kept him working there,? Blackburn said during the hearing, where she and other GOP lawmakers accused tech companies of squelching free speech.

Pichai said he did not know Lemoine?s employment status.

Breitbart News reported in 2018 that Lemoine had criticized Blackburn?s legislative record in excerpts of internal company messages and said Google should not ?acquiesce to the theatrical demands of a legislator.?

?I?m not big on negotiation with terrorists,? Lemoine said, according to Breitbart.

Having a sitting US Senator specifically call out an employee for criticizing her, and asking to know his employment status is fundamentally terrifying. It is, again, reminiscent of the McCarthy hearings, and having elected officials targeting people for their political viewpoints. If people were serious about calling out “cancel culture,” they’d be screaming about how dangerous it is that Blackburn was saying something like this.

The end result of the hearing was a lot more nonsense grandstanding that demonstrated that too many Senators simply do not understand the nature of content moderation, and because they personally disagree with certain policies, or the implementation of certain policies, it means that the companies are somehow doing it wrong. But this is the very nature of content moderation. No single human being will agree with every decision. To immediately leap to the assumption of bad intent (or bad policies) because you disagree with a small sample set of decisions is intellectually lazy and dishonest.

Oh, and Ted Cruz also did some theatrical bullshit, that was mostly performative idiocy, but since he only did it to get a few social media snippets and headlines, we’re not going to play that game, and just say simply that Senator Cruz came off like a total disingenuous jackass, who wanted to make the hearing about himself, rather than anything even remotely substantive.

Filed Under: content moderation, ed markey, grandstanding, jack dorsey, mark zuckerberg, marsha blackburn, mike lee, ron johnson, section 230, senate commerce committee, sundar pichai, ted cruz
Companies: facebook, google, twitter