Month: November 2019

We open this episode with David Kris’s thoughts on the two-years-late CFIUS investigation of TikTok, of its Chinese owner, ByteDance, and of ByteDance’s US acquisition of the lip-syncing company Musical.ly. Our best guess is that this unprecedented reach-back investigation will end in a more or less precedented mitigation agreement.

WhatsApp is suing NSO Group over the use of spyware on WhatsApp’s network. I predict that this is going to be a highwire act for WhatsApp, given the precedents on when breaching terms of service violates the Computer Fraud and Abuse Act. I also muse on the possibility that NSO will find ways to make this a much less comfortable lawsuit for WhatsApp to pursue.

The ACLU takes this week’s prize for making a PR and fundraising mountain out of a molehill of a lawsuit. Matthew Heiman and I try to decide which took less effort – cutting and pasting the ACLU’s generic FOIA complaint or cutting and pasting the ACLU’s generic “Oh my God, it’s a surveillance dystopia” press release.

I comment on a heart-warming story about a geek in Normal, Illinois, who runs the most successful ransomware-rescue site in the world – and is going broke doing it. Advice to DHS’s CISA: Isn’t it time to sponsor prizes for people who post ransomware decryptors with real impact?

Mark MacCarthy discusses the guidance provided by the Defense Innovation Board on building ethical AI. I complain that political correctness seems to have outweighed considerations like, you know, winning wars.

Matthew tells us that Israel is creating its own CFIUS-like panel, and we note the longstanding tension between the US and Israel over Chinese access to Israeli technology.

David spots more decoupling: The Interior Department has grounded its entire drone fleet, citing the risk from Chinese manufacturers.

Mark and I find common ground in thinking that Facebook got the political ad censorship question more right than wrong. Twitter, not so much. We offer Strange New Respect for Herbert Hoover and the legislators who struggled with the last industry to seize control of what Americans could know—broadcasting.

Matthew fills us in on a story suggesting that North Korea breached an Indian nuclear plant’s network. He and I also briefly note that Georgia was the victim of a massive case of cyber vandalism.

In updates of past stories, I cover Coalfire’s persuasive critique of the sheriff who arrested the company’s pentesters in an Iowa courthouse. In another even longer-running story, the latest and perhaps the last word on the LabMD-Tiversa-FTC imbroglio can be found in an excellent New Yorker story that leaves LabMD looking good, the FTC looking bad, and Tiversa looking like a candidate for criminal prosecution. Finally, David updates the story of the 2016 Uber hack that cost the company’s chief security officer his job. Now it’s also going to cost the hackers their freedom, as they plead guilty to CFAA violations.

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Prager University has suffered a setback in its suit against Google.

The conservative outfit took the company to court earlier this year, arguing YouTube—a Google subsidiary—violated PragerU’s free speech rights by putting approximately 20 percent of its videos on “restricted” mode and limiting its advertising. But in a tentative ruling submitted before last Friday’s oral arguments, Santa Clara Superior Court Judge Brian C. Walsh rejected this claim. If those arguments didn’t sway him, this ruling will stand.

“Prager contends that ‘YouTube is the cyber equivalent of a town square where citizens exchange ideas on matters of public interest’ and that defendants have opened their platform to the public by advertising its use for this purpose,” Walsh writes. “However, Prager does not allege that it has been denied access to the core YouTube service.”

Indeed, Prager University, headed by conservative radio host Dennis Prager, has amassed more than 2.36 million followers on YouTube and has produced more than 803 videos, which are hosted on the platform free of charge.

PragerU likely had a better shot of success in California than it would have had elsewhere in the country. The state expanded the scope of free speech rights in Robins v. Pruneyard Shopping Center (1979), which treated a privately held shopping center as a public forum. But even that doesn’t apply here, concludes Walsh, since the restricted service filters out mature content for the 1.5 percent of users who specifically choose not to see such material. “Limiting content is the very purpose of this service, and defendants do not give content creators unrestricted access to it or suggest that they will do so,” writes Walsh. “The service exists to permit users to avoid the more open experience of the core YouTube service.”

YouTube’s advertising service, he continues, is similarly “restricted to meet the preferences of advertisers.”

Prager’s First Amendment claims come amid the nonprofit’s repeated assertion that Google is biased against conservative groups. But as Robert Winterton of the trade association NetChoice points out, the tech giant restricts videos by left-leaning organizations too—and often more than Prager’s 20 percent. Fifty-four percent of The Daily Show‘s videos are hidden, as is 71 percent of content from The Young Turks.

Even the History Channel clocks in higher at 24 percent.

It’s certainly within the realm of possibility that Google’s content moderators are biased to a degree. But even then, is that a reason to bring in the government?

“Prager frivolously argues that the Constitution guarantees his right to post videos on YouTube without restrictions based on the company’s (admittedly vague) notions of propriety,” writes Reason‘s Jacob Sullum. “Where does that leave him when people with different priorities frivolously argue that the Constitution guarantees, say, a right to taxpayer-subsidized abortions?”

PragerU also argued that YouTube’s actions violate Section 230 of the Communications Decency Act, which protects platforms from facing certain liabilities for posts by third-party users. Much confusion continues to proliferate around the law, as high-profile political figures imply that tech companies cannot claim Section 230’s protections if they remove any legal content. But that is patently false: In order to make the internet a more palatable environment, the law specifically allows platforms to scrub content that they deem unsuitable.

“Here, defendants’ creation of a ‘Restricted Mode’ to allow sensitive users to voluntarily choose a more limited experience of the YouTube service is exactly the type of self-regulation that Congress sought to encourage in enacting section 230,” says Walsh.

PragerU has filed a separate suit in federal court. It still awaits a decision from the 9th U.S. Circuit Court of Appeals, and it too rests on free speech claims—ones that are even more likely to lose under federal law.

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As surely as winter follows fall, Republican election victories are followed by unconstitutional attempts to restrict political speech.

The Nixon presidency brought the Federal Election Campaign Act of 1971, which the Supreme Court partially struck down in Buckley v. Valeo. The George W. Bush presidency brought the Bipartisan Campaign Reform Act of 2002, also known as McCain-Feingold, after the senators who sponsored it. The Supreme Court partially struck down McCain-Feingold in a series of decisions, including McConnnell v. FEC, FEC v. Wisconsin Right to Life, and Citizens United.

And the Trump presidency seems to be on the verge of bringing us some kind of federal government crackdown on political speech on social media.

As usual in Washington, there is plenty of blame to go around.

Some of the blame belongs to the Republicans. They vote for these bills and sign them into law even after swearing or affirming to preserve, protect, and defend a Constitution that includes the First Amendment freedoms of speech, press, and petition.

And some of the blame belongs to the Democrats. They have such a constricted view of the boundaries of reasonable discourse and are so confident in the popularity of their own views that whenever their side loses an election, they immediately conclude that the rules need to be changed to prevent whatever vote-buying or disinformation must have caused the otherwise inexplicable outcome.

This, then, is the context in which to view the attempt by members of Congress, Democratic presidential candidates, and even the screenwriter Aaron Sorkin to portray advertising on Facebook as an unprecedented threat to American democracy, and to saddle the Facebook CEO, Mark Zuckerberg, with the responsibility of making sure that no American is swayed by a false political advertisement.

The hypocrisy is overwhelming. Between May 2018 and November 1, 2019, Senator Elizabeth Warren’s presidential campaign has spent $4,862,939 on Facebook ads, according to Facebook. This, while Warren complains publicly that “Facebook’s own employees know just how dangerous their policy allowing politicians to lie in political ads will be for our democracy.” If Facebook had followed Twitter’s example and banned political ads, Warren would have had to find some other way to get her message out.

More broadly, the way to deal with misleading political speech is not with prior restraint but by answering it with more accurate speech. That approach respects voters as smart enough to sort these things out, rather than infantilizing them as easily deceived.

In The New York Times over the weekend, a professor at the University of Virginia, Siva Vaidyanathan, called on Congress to outlaw the delivery of targeted advertising. “If the same political ads were to reach everyone in a state, district or even country, they would not just appeal to marginal constituencies, might not tend toward extremism, and could not get away with lies quite so easily,” the professor imagines.

But politicians have been advertising with tailored messages to “marginal constituencies” since long before Facebook. They use robo-calls to reach identified union members. They use direct mail to reach public-school parents, or Democratic women within a certain age range, or senior citizens. The Bill Clinton presidential campaign aired radio ads on Christian radio stations in 1996 touting that Clinton had signed the Defense of Marriage Act, which defined marriage as between a man and a woman. Our two-party system and winner-take-all electoral process already serve to erode, rather than magnify, the power of “marginal constituencies.” And anyway, sometimes something that starts as a “marginal constituency” or seems extreme—abolition, women’s suffrage, Zionism, fill in your own favorite idea here—becomes a mainstream cause. The First Amendment guarantee of political speech is supposed to apply equally, regardless of whether some professor deems your cause marginal or extreme.

One of the landmark press freedom cases of the 20th century, New York Times Co. v. Sullivan, concerned a paid advertisement by civil rights activists in the 1960s that, as the syllabus of the case puts it, “included statements, some of which were false.” Should desegregation activists in the 1960s south have been prevented from targeting advertisements to sympathetic Northern liberals? Or should they have been forced to pay also for ads to segregationists, so that everyone saw the same ads? And should the ad have been rejected because of the false claims?

The justices in Times v. Sullivan found that “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.'” The Court cited an earlier ruling, NAACP v. Button, observing “the constitutional protection does not turn upon ‘the truth, popularity, or social utility of the ideas and beliefs which are offered.'” It is something that Senator Warren may want to review. It will be useful if she returns to her career as a law professor, but also if she advances to the office sworn to defend the Constitution.

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