from the stupid-xenophobic-moral-panic dept
Over the last few days, we’ve had a few posts about the latest attempt to ban TikTok in the US (and to people who say it’s only a divestiture bill: there is a ban in the language of the bill if ByteDance won’t divest).
Yesterday, unsurprisingly, the House voted overwhelmingly, 352 to 65, to pass that bill. The 15 Republicans and 50 Democrats who voted no make up an odd mix. You have some extreme Trump supporters, who probably are voting no because the boss man said so, and then a random assortment of Democrats, including a bunch from California. I thought Rep. Sara Jacobs from the San Diego area put out a particularly good statement on why this bill is so stupid:
I think the second paragraph here is the key one. People keep saying “but they do the same to us.” That’s no excuse. We shouldn’t take a page from the Chinese censorship playbook and basically give them the moral high ground, combined with the ability to point to this move as justification for the shenanigans they’ve pulled in banning US companies from China.
Don’t let the authoritarians set the agenda. We should be better than that.
But also, her first paragraph is important as well. To date no one has shown an actual evidence of TikTok being dangerous. Instead, all that people will tell me is that there was some sort of classified briefing about it. From Rep. Jacobs’ statement we see that she was able to see that classified intel, and did not find it convincing at all.
I even find myself in rare agreement with Rep. Thomas Massie, who once blocked me on Twitter. He did so in response to me calling out his First Amendment violations in blocking people on Twitter (he eventually removed the block after the Knight First Amendment Institute sent him a letter on my behalf). Rep. Massie may have a somewhat conditional take on the First Amendment, but he correctly pointed out just how dangerous this bill would be:
Massie also pointed (as we did earlier this week) to the clearly lobbied-for (hi, Yelp lobbyists!) “exclusion” for review websites as proof that people know this law covers websites.
I stand by the point we’ve been making for multiple years now: banning TikTok is a stupid, performative, unconstitutional, authoritarian move that doesn’t do even the slightest bit to stop China from (1) getting data on Americans or (2) using propaganda to try to influence people (which are the two issues most frequently used to justify a ban).
Banning TikTok, rather than passing comprehensive federal privacy legislation, is nothing but xenophobic theater. China can (and does) already buy a ton of data on Americans because we refuse to pass any regulation regarding data brokers who make this data available (contrary to popular opinion, Facebook and Google don’t actually sell your data, but data brokers who collect it from lots of other sources do).
Meanwhile, there’s little to no evidence that China is “manipulating” sentiment with TikTok, and there’s even less evidence that it would be effective if they were trying to do so. Public sentiment in the US regarding China is reaching record lows, with the vast majority of Americans reasonably concerned about China’s role in the world. So if China is using TikTok to propagandize to Americans, it’s doing a shitty job of it.
The US has dealt with foreign propaganda for ages. And we don’t ban it. Part of free speech is that you have to deal with the fact that nonsense propaganda and disinformation exists. There are ways to deal with it and respond to it that don’t involve banning speech. It’s astounding to me how quickly people give up their principles out of a weird, xenophobic fear that somehow China has magic pixie dust hidden within TikTok to turn Americans’ brains to mush.
The Supreme Court has reviewed this kind of thing before and said that, no the US cannot ban foreign propaganda just because it’s scared of what that propaganda says. In that case, the government sought to restrict the delivery of “communist political propaganda” from outside the country. The court struck down the restriction on First Amendment grounds, stating that it was “a limitation on the unfettered exercise of the [recipient’s] First Amendment rights.”
As the court noted in that case, the setup of the law was “at war with the ‘uninhibited, robust, and wide-open’ debate and discussion that are contemplated by the First Amendment.”
In the US, we’re supposed to believe in freedom of speech, even if that freedom of speech comes in the form of “foreign communist propaganda.” If we survived that same foreign communist propaganda for decades in other forms, it seems like we can survive it coming from an app designed to highlight short videos of dance moves.
Again, we can pass data protection laws if we’re afraid of how the data is going to be used, because China doesn’t need TikTok to get that data. And we can counter Chinese propaganda. But part of doing so has to be not hiding it and acting like it’s so powerful that Americans are powerless against it. You counter it by showing how freedom can resist such efforts at manipulation.
I have no idea if the Senate will actually take up this bill, though there’s good reason to believe they will. However, such a ban would be a huge mistake, reflect poorly on American values, and show how quickly we’re willing to ignore the First Amendment on some misguided fear of a successful app from a foreign country.
from the good-deals-on-cool-stuff dept
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from the I-guess-it's-cool-if-you-don't-like-the-protesters dept
As the debate over Section 702 continues, more weird stuff keeps happening. For once, there’s serious opposition to a clean renewal, and it’s coming from both sides of the legislature. Then there are things like this, which is one of the stranger incidents to accompany a surveillance fight, as reported by Dell Cameron for Wired.
Yeah, that should alarm everyone, not just Republicans looking for any reason to stick it to the FBI after a few of their own (Trump supporters all) got swept up by the Bureau’s warrantless access to the NSA’s ostensibly foreign-facing collection.
Now, there are lots of reasons most Republicans aren’t happy with this development. The first reason was listed in the previous paragraph. They also may not like protesters being placed under surveillance because many of them still make excuses for the insurrectionists in their midst and love to portray the January 6th invasion of the Capitol building as a protest that just got a little out of hand.
Republicans are also aware this is an executive power and right now they don’t have their own guy as Chief Executive. That’s another reason to oppose a clean reauthorization of Section 702 surveillance powers. The fact that Biden himself has asked for clean reauthorization is another reason to oppose it, even if they might have supported one with Trump still in office.
But this is still pretty disturbing, all politics aside. HPSCI Chairman Mike Turner apparently felt these slides were appropriate for a discussion of a foreign-facing surveillance power — one that’s come under considerable fire for the FBI’s constant, casual abuse of this collection to engage in warrantless domestic surveillance.
Mike Turner, of course, doesn’t really want anything to happen to Section 702. And, given this presentation, it seems clear he doesn’t mind if the FBI uses it to target American citizens, even those engaged in protected First Amendment activities. Faced with an actual reform bill that would codify a warrant requirement for accessing US persons’ communications, Turner fired off a competing “reform” proposal.
His proposal would have codified the FBI’s voluntary changes (which do not include a warrant requirements) and exempt people like him from being targeted by backdoor searches of NSA collections. His reform would force the FBI to notify Congress members if they had been subject to a 702 query and seek permission from certain government officials before gathering information that might include communications harvested by the NSA. As for the rest of us, nothing.
Turner’s briefing — and his startling PowerPoint presentation — were part of a concerted effort to talk legislators into dropping the proposed warrant requirement. I guess the good news is that this attempt failed spectacularly and may have even pushed some people off the fence towards the side demanding warrants.
As you read the next few paragraphs, keep in mind this is coming from the head of the House Intelligence Committee, which is not only a committee (meaning several legislators are involved) but one with access to actual intelligence (in the spy sense of the word), interns, staffers, advisors, aides, and any number of people who might have been able to head this off before it happened.
Instead, now that it’s been made public, the PR wing of the HPSCI has offered up whatever the fuck this is:
Jeff Naft, the HPSCI spokesperson, further stated that the purpose of the slides was to “illustrate” that even if the pictured protesters “had ties to Hamas,” they could not be lawfully surveilled using Section 702.
I have no reason to believe that was the original intent of the slides. But even if it was, no one who viewed this presentation saw it that way, as Cameron reports.
That appears to have been the intent, no matter what Turner’s spokesperson is saying after the fact. If Naft is supposed to be the spin doctor, the HPSCI needs to sue him for malpractice.
And even if anyone in attendance agreed with Turner’s insinuation that pro-Palestinian protesters should be placed under the Section 702-enabled microscope, at least they’re smart enough to realize how this sort of thing works if it becomes the FBI’s new pattern-and-practice following reauthorization:
That’s how it works. Surveillance powers like Section 702 cross administrations. They don’t align with election years. And that should nudge more legislators to consider what’s best in the long run, rather than what’s politically expedient. And, no matter how you feel about the FBI and its steady dipping into the NSA pool, you should never try to insinuate that political protesters should be subjected to domestic surveillance.
from the substantial-non-infringing-uses dept
Last year, we wrote about a very silly lawsuit that some big music publishers had filed against ExTwitter, making some silly claims about how copyright law works. It basically ignored the existence of the DMCA, which was designed to prevent lawsuits like this one, where there is some infringement happening on the platform, but no realistic way for a website to police it, because it can’t know what is and is not infringing. That’s why the DMCA created a whole notice and takedown setup. This lawsuit seemed to basically ignore all that.
That’s part of the reason we thought that ExTwitter’s motion to dismiss was very strong and hoped it would carry the day. It turns out that it mostly did. A part of one claim survives, which ExTwitter should be able to get dismissed at the summary judgment stage if the company didn’t do something very, very stupid (which, these days, is no guarantee). But, on the whole, this is a good ruling for not just ExTwitter, but against dumb copyright lawsuits which have been back on the rise of late.
The ruling is pretty straightforward, dismissing most of the really silly claims from the publishers. The judge understood the basic DMCA issues, noting right up front that the DMCA creates a framework for sites to host user-generated content, without being held liable for infringement by users so long as they comply with the safe harbor requirements in the DMCA. But the music publishers are trying to get around that by claiming that ExTwitter can still be held liable by encouraging infringement.
As with so many copyright cases these days, there are different issues regarding whether or not the defendant engaged in direct infringement, contributory infringement, and/or vicarious infringement (which is often confused with contributory infringement, even by lawyers). Here the judge notes that the music publishers’ arguments on all three types of infringement are pretty flawed.
On direct infringement, it should be a very, very easy call, since it’s not ExTwitter itself that is uploading infringing videos. But the music publishers made use of the giant copyright mess created by the Supreme Court in the Aereo case a decade ago to argue that the Aereo “looks like a duck” test should magically apply here. They argued that ExTwitter was a type of broadcaster “transmitting” the infringing works, similar to Aereo’s rebroadcasting of TV channels. Thankfully, the judge is quick to see that the Aereo case was very, very different:
(Before anyone gets too hyped up about the comparison to telecom providers and phrases in here that sound common carrier-like, this is in a wholly different context — just looking at the copyright liability question, not everything else).
And thus, without anything clear linking ExTwitter to the direct transmission, the direct infringement falls:
Next up is contributory infringement, which is where all the major action in copyright cases these days seems to live. Here, the judge is also not entirely impressed with the music publishers’ arguments, but does allow a small part of the claim to live on.
The concept of contributory infringement is a Supreme Court-invented concept, where they came up with an “inducement” standard found nowhere in copyright law itself, but which they felt was necessary to kill file sharing apps such as Grokster. In short, even if the app isn’t directly infringing, if it’s somehow taking proactive steps to encourage others to infringe, that can be seen as contributory infringement.
The problem here is that the music publishers claim that ExTwitter is engaging in contributory infringement just by existing and allowing people to upload music. If that were true, the entire DMCA notice-and-takedown procedure would be obsolete and dead. The judge is not generally impressed:
Even more to the point, the judge says setting up generally useful tools that might also be used for infringement is, in no way, indicative of contributory infringement:
That final line is a good one.
That said, the judge does not dismiss this entire claim, leaving until later a few specific actions that ExTwitter is accused of, which might cause it problems if the company actually did some stupid stuff. If ExTwitter handled these situations in the way that most thoughtful user-generated content companies would handle it, with competent policies and lawyers, then ExTwitter won’t have a problem. Of course, this is Elon Musk’s company we’re talking about, so there’s no guarantee that they did the right thing. But we’re going to find out.
First up: did ExTwitter allow paying users to infringe more? If so, that could be trouble for the company:
This is the kind of thing that a well-run company would have documentation on to show that it’s just not true. Hopefully that’s the case with ExTwitter. Assuming the company still has competent policies on this stuff in place, they should be able to demonstrate that during discovery. If they do, however, treat paying customers differently for handling copyright takedown than… holy shit would that be stupid. I guess we’ll find out.
Second: was the company deliberately delaying responses to DMCA notices? This one’s trickier, because there’s no defined period of time in which a website has to respond, but anything that indicates they slow walked things could be trouble.
Again, a well-run company would have the documentation necessary to debunk these claims. Does ExTwitter? ¯\_(ツ)_/¯ We’ll find out.
Finally, in the contributory infringement space, there’s the question of whether or not ExTwitter has a functioning repeat infringer policy. Again, if the company does (and it used to…), it should be able to cough up evidence to that effect:
So those bits of possible contributory infringement live on. This means that there will likely be discovery on those issues. If ExTwitter produces evidence that the claims by the publishers are hogwash and they do handle all those things appropriately, the company will likely move for summary judgment and win. If the company under Musk has done something very, very stupid regarding copyright enforcement, then… the company would probably be wise to settle and get the case off the books.
As for the vicarious infringement claim, it’s amazing to me how copyright holders always claim vicarious infringement, and we almost always find out it’s not vicarious infringement. It’s becoming the RICO of secondary infringement claims.
To vicariously infringe, it has to be shown that the website is directly profiting off of the infringement (not just general usage) and, because of that, fails to take steps to prevent it. But you can’t just find some infringement on a platform and say it’s vicarious. However, that’s more or less what the publishers did here. The court is not impressed.
The court notes that most vicarious infringement situations involve cases where an employee or an “agent” of the company is engaging in infringement to the benefit of the company. And there’s no evidence of that here. Indeed, the court basically says that the publishers are sort of pleading contributory infringement factors and claiming they’re also vicarious. But they’re not. So those claims are tossed as well:
And that’s it. Basically all three theories by the publishers are flawed. A few small parts of the contributory claims live on, but should be easily disposed of as long as Elon didn’t do something stupid.