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Published: Fri, 17 Nov 2017 00:00:00 -0500

Last Build Date: Fri, 17 Nov 2017 20:44:06 -0500

 



Government Protection From Russian Misinformation Would Be 'Cure' Far Worse Than Disease

Sun, 05 Nov 2017 07:00:00 -0500

Is American society so fragile that a few "divisive" ads, news stories, commentaries, and even lies—perhaps emanating from Russia—threaten to plunge it into darkness? The establishment's narrative on "Russian election meddling" would have you believe that. On its face, the alarm over this is so ridiculous that I doubt any of the fearmongers really believe their own words. They're attempting to provoke public hysteria for political, geopolitical, and financial gain. There's no more to it than that. While we the people are not deemed worthy of being shown the evidence that "Russia"—which I take to mean Vladimir Putin—was behind the so-called meddling, even if we grant it just for the sake of argument, what does it amount to? Where's the existential threat to America that justifies the fevered rhetoric and bizarre policy proposals that are the staple of cable news? There is none. All I can say is, if that's the worst the Russians can do, I wouldn't lose any sleep over them. And even if we ignore the fact that the material in question amounted to drops in the vast ocean of information Americans encounter every day, the establishment's narrative and proposals are outrageous. Let's state the obvious: we live in an increasingly borderless world—and that's a good thing (no matter what the demagogue and ignoramus Donald Trump says). Information—and, yes, misinformation—flows more easily and cheaply than ever, making access nearly universal. It can't be controlled. That's a good thing. It does not justify panic. To grow up is to cultivate methods of separating the wheat from the chaff in what we see and hear. Early on we learn to discount—if not disbelieve—the claims we hear in television commercials because we understand the role interest plays in describing goods and services. We also learn (one hopes) to treat the claims of politicians, the traditional targets of American ridicule, the same way. There is no substitute for this sort of skepticism; it's is a sign of maturity. A government effort to protect us from misinformation in the name of preserving "our democratic institutions" would be a contradiction, not to mention a "cure" far worse than the alleged disease. The best protection against one-sided, erroneous, even dishonest assertions is competition, the universal solvent. Most people understand this but in too narrow a way. In every election season we are deluged with questionable, false, and even crazy claims. This didn't start with the internet. It's as old as politics. In fact, most campaigns today are more civil than in the past, when candidates' alleged extramarital affairs and illegitimate children were fair game. We have all heard of—or looked at—fringe websites that traffic in political stories even the National Enquirer might reject. But a call to shut down those sites would be rejected by most people—unless the sites were suspected of being Russian. Why should that make a difference? If a story is true, who cares who tells it? And if it is exaggerated or false, can't the people be trusted to exercise the same skepticism they are expected to exercise when the source is American? If not, why does anyone praise democracy? Isn't it odd for proud small-d democrats to lack that confidence in the people? Knowing the identity of the source doesn't indicate if a story is true. (The New York Times said—falsely—that Iraq had WMD and that all 17 intelligence agencies verified that Russia hacked the DNC.) Virtually all the material supposedly posted by Russians was authentic. (Much of it was redundant. Which bright Russian schemer thought it worthwhile to tell the people of Ferguson, Missouri, about police and racial issues there?) Were voters better or worse off because that material was made available? Was the American political system imperiled by RT's coverage of third-party candidates or fracking? Fans of democracy who worship the "informed voter" can't seriously say they were worse off. Whether or not "the Russians" did what they are accused of doing, we need to be skeptical about what we s[...]



How Denmark Has Overtaken the U.S. as a Telecom Policy Leader

Tue, 24 Oct 2017 08:30:00 -0400

In the 1990s, the world looked to the United States as a model for deregulatory telecom and tech policy. Not only was the country fortunate enough to house Silicon Valley's pressure cooker of internet innovation, but its policy makers seemed to deeply understand the need for a culture and regulatory approach that truly embraced experimentation and permissiveness. Regulators around the world took notice and strove to emulate the success of the U.S. approach. Denmark in particular styled its own telecommunications regulations on the U.S. model, slashing its chief telecom regulator altogether and assigning small regulatory functions to other departments. It was a smash success. Today, the Danes enjoy some of the highest quality broadband and mobile penetration in the world at affordable prices with little government intervention, explains a recent Mercatus research paper by telecom scholars Roslyn Layton and Joseph Kane. By eliminating a source of regulatory capture and streamlining regulatory obligations, regulators could dedicate resources to working on actual problems, like creating a lean, digital bureaucracy appropriate for the information revolution. Ironically, a decade later, the U.S. has since slid back into a precautionary mindset towards technology policy. Today, it seems that the Danish student has surpassed the American teacher, and the Federal Communications Commission (FCC) may well be turning to the Danish model to recapture some of our earlier progress. This was the takeaway of a recent event hosted by the Mercatus Center on the topic of Danish telecom deregulation as a model for U.S. policy. The discussion—emceed by yours truly—presented two panels on the respective topics of Denmark as a case study and the concrete lessons that the U.S. can extract from the Danish experience. Such great promise On the first panel, my Mercatus Center colleague Brent Skorup facilitated a dialogue with Layton, former FCC Commissioner Robert McDowell, and Phoenix Center president and telecom scholar Lawrence Spiwak on the Danish telecom miracle. Deregulation not only spurred a veritable renaissance of broadband investment and deployment, it also cut down on cronyism by eliminating a major target of corporate lobbying. Layton's policy recommendations were clear: "The job of a telecommunications regulator is to put itself out of business." At one point, the U.S. was moving close to that ideal. President Bill Clinton's extraordinary "Framework for Global Electronic Commerce" of 1997 outlined a hands-off posture toward Internet technologies that could have been drafted by Milton Friedman himself. Good riddance to the heavy-handed, precautionary regulation of the past. In its place would be a "market-driven arena" in which government involvement would be limited to ensuring "industry self-regulation and private sector leadership." The FCC started to turn over a new leaf as well. Unlike the booming new native internet industry, the underlying telecom infrastructure that made such developments possible were theretofore unfortunately burdened by antiquated telephone regulations established in the wake of the Great Depression. That government-first mindset changed with the ascendancy of Chairman William Kennard to the FCC in 1997. Kennard fully understood the potential of the internet to revolutionize commerce and daily life. More importantly, he was acutely aware of the potential for bad policy to stifle the amazing opportunities that digital technologies presented. In his view, the best way to promote fast, expansive, affordable telecom access was to "resist the urge to regulate" and allow the market to drive development. So Kennard steered the FCC to peel back bad regulations and leave as much space for innovation for new technologies as possible. The general goal was for the FCC to move "from an industry regulator to a market facilitator" by 2005, as Skorup cited from Kennard's 1999 strategy document. Straying from the course Yet, as McDowell and Spiwak pointed out at the event, the FCC has strayed [...]



Politicians—Unsurprisingly—Want to Regulate Political Ads on Facebook

Thu, 19 Oct 2017 14:40:00 -0400

The obsession with the idea that the Russians are responsible for President Donald Trump's election is now being used to push for more regulation of social media. Sens. Mark Warner (D-Va.) and Amy Klobuchar (D-Minn.) are being joined by Sen. John McCain (R-Ariz.) to make their effort to regulate online political advertising a bipartisan affair. Today they plan to introduce what they're calling the Honest Ads Act, which aims to introduce ad disclosure regulations similar to those for television. The text of the bill is not yet available, but here's a summary of the contents via Quartz: Make public digital copies of any advertisement these groups purchase, including the dates and times published. Include a description of the audience and political ad target, and the number of times it was viewed. Disclose contact information for the ads' purchaser, and how much they paid for the ad. Make "reasonable efforts" to ensure that any political ads or messaging isn't purchased by a foreign national, directly or indirectly. The justification for the bill is the discovery that a Russian company linked to the Kremlin spent $100,000 on Facebook ads, which is chump change when compared to domestic campaign advertising spending. But let's be clear here: Russian meddling is just being used as an excuse to do what politicians and federal agencies have wanted for a long time—to regulate how people campaign online. As The New York Times notes, the Federal Election Commission has been attempting to regulate online political advertising for years, and tech companies have been resisting. As is often the case when lawmakers attempt to regulate campaign advertising, there's very little thought about how these lawmakers are not exactly disinterested parties. I mean, it's not terribly surprising that McCain, in a permanent feud with Trump, might want to find ways to work with the Democrats to control online political ads. Restrictions on campaign advertising pretty much always benefit incumbents and powerful parties, because they already have a significant amount of money, influence, and media access. Challengers have an uphill climb, and anything that controls campaign expenditures and advertising methods makes that climb steeper. And in the end, all that Russian advertising "meddling" was about taking advantage of Americans' dissatisfaction with choices made by established political interests. It's telling how much of the coverage of Russian interference is unwilling to look at the reasons it may have worked, and instead revolves around how to stop it. When the discussion does explore the meaning of the meddling, the coverage almost always announces that Russia is "taking advantage" of cultural divisions. At The Washington Post, Casey Michel breathlessly declares that a Russian-run group on Facebook encouraged Texas to secede from the union, and that Facebook allowing that to happen represents "one of the greatest frauds in recent American history." But the Texas secession movement is absolutely not new, and that fact that this particular effort wasn't a real thing means nothing in terms about how many Texans feel about their relationship to the federal government. Remember, the official report from our national intelligence agencies on Russia's involvement on the presidential election, a summary of which was released back in January, focused heavily on how the country, via RT, was giving voice to Americans who were dissatisfied with the government. One of its examples was that RT brought in third-party political candidates and pointed out that many Americans were unhappy with the two parties. As I noted then: I don't dispute the findings here about RT, but look at those examples and they could apply not just to Reason but to media outlets of varying ideological positions within America. Americans are abandoning the two political parties. People are genuinely upset about surveillance and police brutality. If this is an attempt to sway the public to be concerned about RT, it's not terrib[...]



Supreme Court to Decide if Data Stored Overseas Can Be Demanded with Warrants

Mon, 16 Oct 2017 12:30:00 -0400

(image) The Supreme Court agreed today to hear and rule whether the federal government can demand access to emails and other data files when they are stored in another country.

In United States v. Microsoft Corp., the Department of Justice has been trying since 2013 to get access to emails of a Microsoft customer, looking for evidence this person was involved in drug trafficking.

Some of the suspect's data was being stored on a server in Dublin, Ireland. Microsoft has turned over data stored within the United States, but argued, even with probable cause warrants, the feds did not have the authority to make them hand over foreign-stored info. Privacy advocacy groups, tech companies, and the U.S. Chamber of Commerce are on Microsoft's side here. The Department of Justice and 33 states (and Puerto Rico) are on the other.

Several court rulings have upheld Microsoft's argument, but the full 2nd Circuit Court ruling was split 4-4. This split keeps the ruling in Microsoft's favor, but there's a clear disagreement among judges about the limits of the authority of the Stored Communications Act—the 1986 federal law that oversees forced disclosures of data by third parties like tech companies.

The Justice Department, of course, went full 9/11, arguing limits to their warrant authorities would jeopardize terror investigations. Microsoft, meanwhile, worries about the reaction if the United States sets a bad example here. Via Reuters:

"If U.S. law enforcement can obtain the emails of foreigners stored outside the United States, what's to stop the government of another country from getting your emails even though they are located in the United States?" Brad Smith, Microsoft's president and chief legal officer, said in a blog post on Monday.

The Justice Department said in its appeal that the lower court ruling "gravely threatens public safety and national security" because it limits the government's ability to "ward off terrorism and similar national security threats and to investigate and prosecute crimes."

Reuters notes that tech companies are also concerned that customers may not trust the privacy cloud-based computing services if governments could seize their data.

The Justice Department, on the other hand, worries that companies would be able to deprive the government of access to domestic data and communications simply by storing it all overseas. That outcome, frankly, sounds kind of awesome.

This is a highly technical case that will probably produce a fairly specific ruling about Congress' intent with the Stored Communications Act and the limits of what that law authorizes. Do not expect a broad ruling about the either the limits of warrants under the Fourth Amendment nor a revised view of the limits of the Third-Party Doctrine that allows the government to access data about private citizens that is stored by tech companies and private firms.

Read the Justice Department's petition here.




Brickbat: See No Evil

Fri, 13 Oct 2017 04:00:00 -0400

(image) United Kingdom Home Secretary Amber Rudd has called for a law that would criminalize reading "terrorist content" online, including "jihadi websites" and "far right propaganda." Those convicted under the law would face up to 15 years in prison.




Judge Won't Let Feds Have Full Access to Names of People on Anti-Trump Site

Wed, 11 Oct 2017 15:10:00 -0400

(image) A judge has added new limits to a warrant the Justice Department is using to try to track down the anti-Trump activists who disrupted Inauguration Day activities.

As part of an effort to identify any protester who did anything illegal in D.C. the day Donald Trump was sworn in as president, the Department of Justice served a warrant against the web host DreamHost. The warrant was absurdly broad, attempting to get private data on anybody who had so much as visited DisruptJ20.org, a site used to organize anti-Trump protests. According to the company, the warrant as initially submitted would have required it to hand over the IP addresses of more than a million visitors to the site.

DreamHost announced it was resisting the warrant, calling it an overly broad fishing expedition and a threat to free speech. It certainly could cause a chilling effect if the government were able to simply demand the names of anyone who visited a website critical of the president. Just today, Trump was pretty clearly suggesting that he'd like to find some way to retaliate against media outlets whose reporting he dislikes.

The Department of Justice then retreated and said it would refine the request. Superior Court Judge Robert E. Moran approved a more limited warrant and ordered the Justice Department to put protocols in place to limit access to private information that had nothing to do with a criminal investigation.

Yesterday Judge Moran put out a final order that made it clear he's not going to let the Justice Department just wade through personally identifiable private information without any probable cause. DreamHost will be permitted to redact user information, and the Department of Justice won't be able to access it unless it can show that a particular user is suspected of criminal activity.

"While the government has the right to execute its warrant," Moran noted in his order, "it does not have the right to rummage through the information contained on DreamHost's website and discover the identity of, or access communications by, individuals not participating in alleged criminal activity, particularly those persons who were engaging in protected 1st Amendment activities."

Kudos to DreamHost for putting up a fight here. As a third party host, it's not the one being investigated for misconduct, but it's using the revenue it earns from its customers to help protect those customers' privacy from an overreaching government.




Why is YouTube Deleting Bump Stock Videos?

Tue, 10 Oct 2017 14:35:00 -0400

In the aftermath of the Las Vegas shooting, both Republicans and Democrats have said they'd support a ban on bump stocks, which allows a semi-automatic rifle to fire more rapidly. Even the National Rifle Association has semi-endorsed "additional regulations" on the devices. Now YouTube is getting in on the action. The video hosting website has been taking down videos depicting the installation or even the mere use of bump stocks. These removals appear to have started on October 6, when a number of prominent firearms channels received notifications from YouTube that their videos featuring bump stocks were a violation of community guidelines on harmful or dangerous content. The channels were also awarded a community standards "strike," which comes with the suspension of features like live streaming. "Three strikes and you're done on YouTube and that's my livelihood," says Tim Harmsen, owner of the YouTube channel Military Arms. For the past three years, Harmsen's main source of income has come from his channel, where he posts demonstrations and reviews of firearms and accessories. Harmsen received a strike for his four-year-old video SSAK-47 Bump Fire Stock for the AK by Slide Fire Solution, which depicts the use of a bump stock. The penalty, he tells Reason, came as a shock. "No warning. Nothing. I logged into YouTube on the 7th after traveling and I'm greeted with a big orange page telling me I'm in violation of community standards and offending videos have been removed." Harmsen learned of the penalty at a gathering of other firearms enthusiasts in Atlanta. Many of the other attendees also maintain YouTube channels, and were likewise penalized for depicting bump stock videos. The gun website TwangNBang reports that the popular firearms channels 22Plinkster and BigShooterist also received strikes for violating community standards. Instragram has also deleted pictures of bump stocks from Harmsen's account. In a statement provided to Reason, a YouTube spokesperson said: "We have long had a policy against harmful and dangerous content. In the wake of the recent tragedy in Las Vegas, we took a closer look at videos that demonstrate how to convert firearms to make them fire more quickly and we expanded our existing policy to prohibit these videos." YouTube is, of course, a private service, and it can moderate its content in whichever way it chooses. That said, it is sad to see the company react this way. As has been pointed out countless times, adding a bump stock to a weapon does not make it inherently more deadly, thanks to the device's sacrifice of accuracy for speed. A few YouTube videos remain that demonstrate this trade-off quite effectively. Removing such clips only inhibits people's ability to learn about the device, something that is particularly important given the nationwide debate about banning them. Meanwhile, YouTube still features plenty of videos of people using actual automatic weapons. Removing videos of bump stocks, much like the calls to ban the device, is clearly more about pandering to a sudden political moment than about actually advancing safety.[...]



Feminist Porn Isn't Free

Thu, 21 Sep 2017 13:35:00 -0400

"Our goal was to undress Pinterest, not dress up Pornhub," the press kit for Bellesa, a Montreal-based web startup, proclaims with lofty feminist ambitions. A recent writeup on Bustle hails the (NSFW) site as "good both for women and for men who want something outside what our patriarchal, heteronormative society dictates they should like." Little of Bellesa's video content, however, distinguishes it from other porn sites; it's Pornhub in a Pinterest wrapper. Nothing wrong with that per se—in fact, a porn platform with serves up a variety of videos (not just the softcore, romantic stuff that's often assumed to appeal more to women) with a less aggressively masculine interface would probably do well. But for a site to live up to its idealistic, feminist branding, it needs to account for the labor and intellectual property of those producing the content—the performers, directors, and others who actually make the adult videos—whether that means making content distribution deals with independent sex workers or ethical-porn production companies; producing content in house; or working out some sort of profit-sharing platform for user-created content. Bellesa—Catalan for beauty—does none of these things. Canadian magazine The Link describes founder Michelle Schnaidman's role as curating or facilitating porn—"she makes it available for those who seek it." It solves what Bustle writer Joanna Weiss described as the "pesky paywall" problem by featuring porn clips cribbed from all around the web, without paying or promoting the people who made them. Bellesa also asks women to upload their own "erotic stories, sexy photos and GIFs, and feminist blog posts" for free, for the fun of it. Apparently all it takes to find feminist pornography is being willing to band together with other feminists and become unpaid porn stars, erotica writers, and digital content producers for the cause! Shnaidman assures women she created this porn clearinghouse for only the best and most feminist reasons. "We need to put an end to slut-shaming and to the antiquated idea that sex is something men do to women," she told Bustle. "Or something women do for men. Because it's not. Once society finally accepts the notion that women like sex (like, really like sex), we can begin shattering the stigma surrounding female sexuality—and of course porn." The Bellesa website decries the "male-dominated paradigms that have defined sex on the internet" so far, and porn that is "derogatory and exclusionary towards women." "The market for services meeting women's sexual needs is often neglected due to the myth that women are less sexual than men," explains Bustle. But on Bellesa, there will be "relatable" bodies, performers expressing "authentic" pleasure, and as many shots of nude men as women. Refinery29 even recommends women against signing up for a non "female-friendly" porn subscription service and instead find "free porn" on Bellessa. Both the women's media and Shnaidman here showcase problems (long) prevalent among mainstream feminists: a willingness to throw certain sorts of women under the bus when it's convenient; an apparent inability to consider how creating some preferable condition for some normative class of women will affect those not in this class; and a tendency to embrace personal liberation on the backs of more marginalized groups. Several adult-film producers have already asked Bellesa to take down their content. Hi, @BellesaCo you have content created by us and the lines we distribute on your site. Please remove it. Thanks. cc: @bustle @suzannahweiss https://t.co/xgDG4KIsQz — Wicked (@WickedPictures) September 21, 2017 Hi, @BellesaCo you call yourself "ethical" and stole my content & never credited me as the writer/director. cc: @bustle @suzannahweiss https://t.co/vMdVAccJTW — Jacky St. James (@jackystjames) September 20, 2017 And sex workers [...]



Sheriff Forced to Pay After Ordering Raid on Blogger Who Criticized Him

Fri, 08 Sep 2017 13:15:00 -0400

Has a bullying Louisiana sheriff learned his lesson about abusing power? The targets of an illegitimate and unconstitutional 2016 raid he ordered think he has. Yet Terrebonne Parish Sheriff Jerry Larpenter has received no formal discipline for his conduct. Larpenter has reached a settlement in the civil suit filed against him by Jennifer and Wayne Anderson, whose home was raided by Larpenter's deputies in 2016 after Jennifer blogged critically about the sheriff. "I think the sheriff's finally learned that he can't bully people and violate people's constitutional rights," Wayne, a Houma police officer, told local station WWLTV. "In our case, he stepped on the wrong people's constitutional rights because we knew our rights. Hopefully, he thinks twice the next time he gets his feelings hurt." The trouble stems from Jennifer's pseudonymous blog, ExposeDAT, which billed itself as the area's "Underground Watchdog" and was critical of Terrebonne Parish leadership, including Larpenter. Among other things, the blog questioned the business relationship between Larpenter, Parish President Gordon Dove, and Tony Alford, an insurance agent and a commissioner on the Terrebonne Parish Levee and Conservation District Board. Alford filed a defamation complaint. Under Louisiana's defamation statute, the crime is defined as "the malicious publication or expression in any manner, to anyone other than the party defamed, of anything which tends to expose any person to hatred, contempt or ridicule, or to deprive him of the benefit of public confidence or social intercourse; or to expose the memory of one deceased to hatred, contempt or ridicule; or to injure any person, corporation, or association of persons in his or their business or occupation." But the Louisiana Supreme Court has declared this statute unconstitutionally broad when applied to public figures—like Larpenter, Dove, or Alford. Nonetheless, after warrants issued to Facebook and AT&T linked ExposeDAT to the Anderson household, the sheriff obtained search warrants for the couple's home and computer and for the ExposeDAT Facebook account. Terrebonne Parish deputies raided their home, seizing two computers and five cellphones (including one computer and some phones that belonged to the Anderson children). State District Judge Randall Bethancourt, who issued the search warrants, told WWLTV he had no problem letting law-enforcement "take a look-see at these computers that might have defamatory statements on them." The Andersons quickly filed a suit in federal court, asking it to stop police from searching the family's computers and to declare the raid and seizure unconstitutional. This week, the Andersons settled with Larpenter out of court in an undisclosed agreement. Per the terms of the settlement, the Andersons can't say much about what went down. But in a statement, their attorney declared the agreement "a victory for citizens' right to be critical of their elected officials without fear of retribution" and said it's "reassuring to see that the Sheriff has decided to take responsibility for what he did to the Anderson's, and compensate them for the harm they suffered due to his actions." U.S. District Court Judge Lance Africk officially dismissed the case on Thursday, but he said he retains the right to open it again if the settlement's terms aren't met in a reasonable time period. In an earlier ruling, Africk opined that "Jennifer Anderson's speech [on ExposeDAT] falls squarely within the four corners of the First Amendment." Larventer's actions, Africk wrote, send a message that "if you speak ill of the sheriff of your parish, then the sheriff will direct his law enforcement resources toward forcibly entering your home and taking your belongings under the guise of a criminal investigation." This "would certainly chill anyone...from engaging in similar constituti[...]



Eye Doctors Don't Like Seeing Alternatives

Wed, 06 Sep 2017 00:15:00 -0400

I just got new glasses—without going to an optometrist. It's another innovation made possible by the internet. Going to an optometrist can be a pain. You have to leave work, get to an optometrist's office, sit in a waiting room and then pay an average of $95 (in my town). But I got a prescription for just $50—without leaving my computer. This is possible thanks to a company called Opternative ("optometry alternative"). The company claims its online test is just as good as an in-person eye exam. I was skeptical. It's over the internet! How can a computer replicate what optometrists do in their offices with impressive-looking machines? "This is the beauty of technology," answered Dick Carpenter, director of strategic research for the libertarian law firm the Institute for Justice. Carpenter researched Opternative's test and concludes that it is just as good as an in-person exam. "Sometimes better, some research has indicated." Here's how it works: First, you answer some medical questions. Then, while holding your cellphone, you follow prompts on the phone while looking at your computer screen, selecting which lines look sharper, or which numbers you see. One day later, they send you a prescription. Mine exactly matched the prescription I got from my ophthalmologist, a medical doctor who charges much more. Fast, cheap, and easy. So naturally, optometrists want this alternative banned. "This is really foolhardy and really dangerous," said former American Optometric Association president Andrea Thau on "Good Morning America." She wouldn't do an interview with me. Nor would anyone else from her Association—despite our sending them emails for a month. I assume they knew I'd mock them for trying to ban the competition. Which they are trying to do. They wrote the FDA that the at-home test "should be taken off the market." What they're really saying is that patients should not have the right to make any choices in their own vision care. The optometrists are bottleneckers. Bottleneckers: Gaming the Government for Power and Private Profit is the title of Dick Carpenter's new book. He studies how established professionals use government to limit competition. Cosmetologists get laws passed that force hair-braiders to spend $5,000 on useless courses and tests. Restaurants limit food trucks. Established florists ban newcomers. Optometrists want to ban Opternative's test. Bottleneckers like them have clout in legislatures because their lobbyists give politicians money. They persuaded 13 states to draft bills that would ban at-home tests. In South Carolina, then-Governor Nikki Haley vetoed the ban, correctly calling it anti-competitive. But the legislators were beholden to the optometrists' lobby; they overrode her veto. The optometrists say that a home test is too risky because no doctor is there to look for diseases. I confronted Opternative's spokesman about that. He said the test's questionnaire filters out sick people by asking questions like: "Any health conditions? ... pregnancy, nursing, diabetes ... Any medication that affects your vision? ... Sertraline, Amitriptyline...?" Obviously, a questionnaire is not as good as a doctor. But it does screen out some people. Opternative rejected me the first time I tried. I then lied about my age to test their service. I don't recommend lying on medical forms. But a cheap internet prescription is not much of a threat to public health. Barbers claim an unlicensed barber might give you a bad haircut or cut you. Florists say an unlicensed flower arranger might spoil your wedding. The optometrists at least have a better argument: The at-home eye test might miss a disease. But I say we consumers should get to choose what risks we take. I choose to go to an ophthalmologist because I can afford it, and at my age, I want a glaucoma test. But many young[...]



Backpage Executives Escape Pimping Charges Kamala Harris Brought (Twice) Against Them

Thu, 31 Aug 2017 15:17:00 -0400

The California Superior Court of Sacramento County has granted a motion to dismiss state pimping charges against Backpage CEO Carl Ferrer and former controlling shareholders Michael Lacey and James Larkin. But the men are still being prosecuted on money laundering charges, for profiting from online classified-ads authorities allege to facilitate prostitution. The charges were brought in December by former California Attorney General (AG) Kamala Harris, now a U.S. senator, after the first case Harris brought against Backpage was rejected. Rather than appeal, Harris amended the charges slightly and filed them in another court. Judge Lawrence G. Brown notes in an August 23 decision that Backpage leaders are now "being charged with, essentially, either investing money into [an] underlying criminal scheme, or conducting transaction with profits from the scheme." To make their case, state prosecutors (now under the leadership of AG Xavier Becerra) will have to show specific Backpage profits came solely from underlying criminal activity—in this case, the alleged facilitation of prostitution and sex trafficking. "Regardless of whether [California prosecutors] will succeed in meeting their burden of proof, the theory and the charges under which they are proceeding appear to be valid under California law and adequately pled such that any defect does not bar prosecution," Brown wrote, acknowledging the state's criminal complaint was "not a model of clarity." The court will let the money-laundering case against Ferrer, Lacey, and Larkin proceed except as it pertains to pimping. The judge granted a motion to dismiss the 11 pimping charges against Ferrer and conspiracy to commit pimping charge against all three men. State Prosecutors Make Backpage's Case for Them State prosecutors had argued that Backpage executives derived an income from prostitution—i.e., pimping—by accepting money for online "Escort" advertisements that resulted in prostitution occurring. Backpage ownership argued it accepted payment for legitimate services—i.e., running a publishing platform—and is not liable for any criminal activity that may have resulted from Escort ads (a null section as of January 2017). With regard to the pimping charges, "the relevant question...is whether, and to what extent, Defendants' activity entitles them to protection of their First Amendment rights through the immunity provision" of the federal Communications Decency Act (CDA), Brown notes. "Providing a forum for online publishing is a recognized legal purpose that is generally provided immunity under the CDA," he points out. "This immunity has been extended by the courts to apply to functions traditionally associated with publishing decisions, such as accepting payment for services and editing." State prosecutors suggested it was not the forum but the content of the advertisement that was objectionable. "Yet, to hold [Backpage] responsible for the content of the advertisement would require holding a publisher liable as if he was the speaker of the content," Brown notes. "Contrary to the [state's] claim, doing so directly triggers, not defeats, the immunity provision of the CDA." The state also argued (using the same arguments that failed the last time) that Backpage's actions went beyond publishing into content creation, which would mean CDA immunity could be revoked. But "in light of the People's acknowledgment that Backpage's edits would not change the user's intent, there can be no material contribution to the offensive content," writes Brown. "Indeed, such actions generally fall within the scope of protected editorial functions," the decision continues. Even if the edits or posting rules allow advertisers to use coded language, this is insufficient to render the website operator a content provider.[...]



U.K. Expands Hate Crime Law Enforcement with Vague Online Crackdown

Thu, 24 Aug 2017 12:50:00 -0400

The United Kingdom's director of public prosecutions, Alison Saunders, is making it abundantly clear she wants to prosecute more people for hate crimes and to make sure they receive enhanced sentences. In a column in The Guardian and on the site for the Crown Prosecution Service (CPS), she announces an effort to "treat online hate crimes as seriously as those committed face to face." But then she says, actually, they probably won't: The definition of hate crime, recognised by the CPS and police, is "any criminal offence which is perceived by the victim or any other person, to be motivated by a hostility or prejudice" towards the personal characteristics mentioned above. Of course, different types of offences have differing consequences and, as online abuse by its nature cannot cause direct physical harm to a victim, it can never be considered or sentenced in the same way. But we know online hate crime has devastating effects. What Saunders describes here is awfully vague, it appears deliberately so. Her rallying cry is the absurdly circular "Hate is hate." If there's a chilling effect on speech here, it's clearly intentional: She seems to want citizens to perceive "hate" as broadly as possible. For the sake of us Yanks and other non-Brits, I should note that the U.K.'s definition of hate crimes includes more than targeted physical assaults or property damage. It also includes bullying and harassment, a fact that offers a little more context on what she means by "online hate crimes." But reading all the new guidance the CPS is putting out will render a person even more confused about what Saunders is saying. One might naturally assume that "hostility" on the basis of a person's race or sex or sexual orientation would be fairly clear-cut, at least as a legal matter. One would be wrong. Here's a case from a page of guidance on race-based hate crime prosecutions: The demonstration of hostility need not be based on any malevolence towards the group in question. Disposition at the time is irrelevant: see DPP v Green [2004] EWHC 1225 (Admin.) and R v Woods, in which it was irrelevant that the offender, who used racially abusive language to a doorman after being refused admission, might well have abused anyone standing in the victim's place by reference to any obvious physical characteristic. To eliminate the jargon on this one: The defendant in this case was hostile toward a doorman, and he threw a racist term at him. Evidence suggests he might have been hostile toward whomever was in that doorman's position, and that the hostility had nothing to do with his race. But because he used a racist term, his behavior qualifies as a hate crime. The case law can be confusing, if not contradictory. In one case, the fact that a defendant used racial slurs during an attack did not mean that his companions should also face hate crime enhancements. But in another case, a defendant was a member of a group whose members had a history of racial hostility, and that was enough. Writing in Spiked, Naomi Firsht takes note wonders where such baffling wrinkles in the law will lead: 'People all over the world are questioning how those in positions of power can counter the kinds of extreme views that are increasingly being aired, and how societies might do more to prevent such opinions from gestating in the first place', [Saunders] argues. But who will decide what constitutes an extreme view? Feminists Germaine Greer and Julie Bindel have been accused of transphobia because they question whether men can become women. If they expressed this opinion online today, would they be arrested? As a general subject of discussion, I suspect the answer would be no. But what if they decide to write repeatedly about a specific, identifiable transgender person? Wou[...]



DOJ Retreats From Speech-Chilling Demand for Information About Trump's Opponents

Wed, 23 Aug 2017 16:05:00 -0400

Yesterday the Justice Department retreated from its sweeping demand for information about an anti-Trump website, a dragnet that civil libertarians had criticized as an assault on freedom of speech and freedom of association that was apt to intimidate the president's opponents. Proposing a a less ambitious fishing expedition, two federal prosecutors insisted that "the government values and respects the first amendment right of all Americans to participate in peaceful political protests and to read protected political expression online." The history of this case suggests otherwise. On July 12, as part of an investigation into Inauguration Day rioting, the U.S. Attorney's Office in Washington, D.C., obtained a search warrant requiring the internet hosting service DreamHost to disclose "all records or other information pertaining to" disruptj20.org, which had helped organize protests in the capital on the day Donald Trump took office. DreamHost objected to the overbreadth of that demand, which it said would include some 1.3 million IP addresses of people who had visited the site, along with email from disruptj20.org discussion groups. Assistant U.S. Attorney John Borchert showed no interest in negotiating narrower terms, instead arguing in a July 28 brief that DreamHost should be forced to comply with the warrant immediately. DreamHost responded on August 11 with a 60-page brief arguing that the warrant endangers the First Amendment rights of third parties and violates the Fourth Amendment "because it fails to describe the items to be seized with sufficient particularity and because the all-encompassing disclosures it requires are unreasonable." A few days later the company publicly explained that it was taking a stand because the information sought by the government went far beyond the legitimate scope of a criminal investigation. "That information could be used to identify any individuals who used this site to exercise and express political speech protected under the Constitution's First Amendment," it said. "That should be enough to set alarm bells off in anyone's mind. This is, in our opinion, a strong example of investigatory overreach and a clear abuse of government authority." Yesterday Borchert and another assistant U.S. attorney, Jennifer Kerkhoff, said "the government has no interest in records relating to the 1.3 million IP addresses that are mentioned in DreamHost's numerous press releases and opposition brief." They proposed revising the warrant to make it clear that DreamHost "should not disclose the contents of unpublished draft publications" or "HTTP request and error logs," which include visitors' IP addresses. Borchert and Kerkhoff said "the warrant was not intended to be used, and will not be used, to 'identify the political dissidents of the current administration,'" as DreamHost alleged. In fact, they said, federal prosecutors did not realize DreamHost would have records that could be used for that purpose. Even if you buy that excuse, which does not reflect well on the technological sophistication of federal prosecutors looking for evidence of criminal activity on the internet, DreamHost's lawyer noted the overbreadth problem in a July 21 email to Borchert, who a week later argued that it should be no barrier to compelling DreamHost's compliance with the warrant. It was only after the negative publicity generated by DreamHost's resistance that Borchert suddenly decided the company's concerns had merit. In an interview with the London Guardian, Public Citizen attorney Paul Alan Levy dismissed the official explanation for the absurdly broad scope of the original warrant—i.e., that the feds did not realize what kinds of information it covered. Levy said it "defies belief" to suggest[...]



Protect Internet Companies' Freedom to Refuse to Host Racists, or Anyone Else They Don't Like

Fri, 18 Aug 2017 13:30:00 -0400

When I edited a small-town newspaper, I eventually ended up rejecting letters to the editor from an elderly gentleman who had many interesting things to say about the issues of the day. He was, in some ways, a boon to the op-ed page—online commenting has completely demolished the number letters sent to many news outlets. But he was also a bigot, and this became obvious and more overt once Barack Obama was elected president. The final straw was a letter explaining how he could tell walking into a house that black people lived there based on the way the house smelled. I would run no more letters from him. I informed my publisher and he agreed. We deprived him from a platform of communication and we didn't regret it one bit. The impact in this case was small—the growth of the Internet means that there are plenty of other ways to get your message out when the local media tell you no. But that didn't used to be the case. Go back 30 years, and the average American's ability to communicate ideas to the larger public was much more limited. Yet newspaper editors regularly censored or refused to run letters to the editor they felt were in bad taste. There was never any question that newspapers had the authority to make those calls. The First Amendment is very clear here. Now that mass communication has moved online, a whole new crop of companies have the power to decide whether to host controversial content. They don't see themselves as "media outlets." They're just hosts and service providers. Traditionally they have not cared what people are saying. But in the wake of the violence in Charlottesville, Virginia, some of these companies are making the same decisions that old-fashioned media outlets have made in the past. They have decided that they do not want to provide their services to neo-Nazi outlets like The Daily Stormer. Earlier in the week GoDaddy and Google booted the white supremacist site as customers. The CEO of CloudFlare, a service that helps protect sites from cyberattacks, subsequently decided abruptly to dump Daily Stormer as a customer. Now the CEO, Matthew Prince, has some regrets. He's concerned about betraying his neutrality as a service provider, about the potential consequences of taking sides in a highly charged political debate, and about his own power, saying at one point: "Literally, I woke up in a bad mood and decided someone shouldn't be allowed on the Internet. No one should have that power." Fortunately, Prince doesn't actually have that power. CloudFlare is a major player, but it does have competition, and it's competition that should resolve this fear. Going back to the newspaper example: When enough people in a community felt like their local newspaper didn't serve them well enough, it created the environment for rival newspapers to pop up and thrive. The entire alternative newsweekly industry exists because traditional dailies were not meeting a younger, more liberal readership's needs. If Prince were to get so drunk on his power that he starts cutting ties with customers willy-nilly, that wouldn't just be bad for the customers. It would be bad for CloudFlare, because it would lose business to its competitors. There's a subtext to Prince's statements, one that suggests that what he really wants is not to be seen as responsible for controversial corporate decisions. The idea that a handful of companies have complete control over whether or not you can communicate your beliefs online creates a significant tension around the issue of censorship. The Electronic Frontier Foundation (EFF) is worried that careless censorship by companies will bolster the efforts by governments to turn these decisions into demands. It is true that we should be very, v[...]



Activist Sentenced to Two and a Half Years in Prison for Sharing BBC Article

Thu, 17 Aug 2017 13:30:00 -0400

Thailand government critic Jatupat Bonnpattaraksa, a.k.a. Pai, has been sentenced to two and a half years in prison for lese-majeste, or insulting the king. Pai, a former law student who has been outspoken about the military junta running the country, was arrested just two days after Maha Vajiralongkorn took the throne as the new king last December. Pai's crime: sharing a BBC Thai profile of Vajiralongkorn. The article was fairly objective—you can read the English-language version of it here—and thousands of people shared it on social media. Pai was the only one targeted by authorities. Pai pled guilty and had a five-year sentence reduced to two and a half. "Pai confessed," his attorney told Reuters. "He knew that if he tried to fight the charges it would not be of any use." As Reuters notes, the number of arrests for the crime of lese-majeste has increased sharply since the military overthrew the democratically elected government back in 2014. The arrests have often targeted government critics. "Jatupat's case is only the latest in the Thai government's increasingly repressive and arbitrary attempts to chill expression online and censor content critical of the state, including banning interaction with certain exiled dissidents and making it a crime to simply view lese majeste content," the Electronic Freedom Foundation's Gennie Gebhart writes. "These extremes are not just about stopping the flow of information; they are also about spreading fear among users that the authorities may be watching what they read, share, and say online." Human Rights Watch condemned the verdict, and in a statement its Asia director, Brad Adam, suggested Pai was "prosecuted for his strong opposition to military rule more than for any harm incurred by the monarchy." Amnesty International also condemned the verdict. "This verdict shows the extremes to which the authorities are prepared to go in using repressive laws to silence peaceful debate, including on Facebook," Amnesty International's Josef Benedict said in a statement. This sort of repression should be a reminder of the importance of the First Amendment. As hate-crime laws are coopted to cover classes of people like police officers, it's easy to imagine how hate-speech rules could be similarly deployed. Pai's persecution also highlights the importance of protecting anonymity online. The rise of trolling has led to calls to eliminate anonymity on the internet; Facebook has made it difficult to use the site without revealing your identity, even as it also becomes a tool and traffic hub for activism. Facebook is free to run its own network the way it wants, but opponents of anonymity need to understand that anonymity doesn't just protect trolls; it protects people from troll governments. Please share your totally appropriate and not-at-all insulting comments about the Thai king in the comment thread below.[...]