a Better Bubble™
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The Phoenix Police Department wants drones and it wants them now. And, according to this report by the Phoenix New Times, it's going to get them.
After several hours of debate and spirited public response during the Phoenix City Council meeting this week, local officials agreed to authorize the police department to purchase public safety drones right away.
Late Wednesday night the Phoenix City Council voted 6-3 after a lengthy, and at times heated, discussion.
The request was submitted to the city council at the last minute, fast-tracking the agency’s plans to implement the technology.
Why the rush? Well, according to a letter [PDF] signed by Mayor Kate Gallego and two council members, having a drone in the air would have… not changed anything at all about a recent incident where officers were shot.
In the early morning hours of February 11, our officers were ambushed when responding to a call for service at a two-story home in Southwest Phoenix near 54th Avenue and Broadway. Nine of our police officers were injured but thankfully all of them are recovering.
During this incident was determined for the safety of our officers drone would need to be utilized to neutralize the situation. Currently, Phoenix does not own any drones for use by our Police Department, therefore we had to rely on the grace of our neighbor, the City of Glendale, to provide our department with a drone.
News reports about the ambush shooting make no mention of a deployed drone or describe what difference it made in resolving the deadly situation. But that shooting that happened to have a late-arriving drone is being used to justify the sudden acquisition of drones by the PD, which will presumably be deployed as soon as they're obtained.
Since it's apparently a matter of life and death, the request made by the council for the police to develop a drone policy and deployment plan before seeking funding and permission to acquire them has been abandoned. It's apparently now far too urgent a problem to be slowed down by accountability and transparency.
The committee agreed to allow Phoenix Fire to go ahead with its drone purchases — so it could roll the tech out by the summer — but asked Phoenix police to come back for approval separately, with a more fleshed-out plan.
This new proposal will circumvent that, instead allowing Phoenix police to go ahead with the drone purchase “as soon as possible,” according to a memo, without presenting a policy first to the council.
That gives the Phoenix PD permission to send eyes into the skies without meaningful restrictions or oversight. Far too much slack is being cut for a police department that is currently being investigated by the Department of Justice following years of abusive behavior by its officers. Here's what the DOJ -- which announced this investigation last August -- will be digging into:
This investigation will assess all types of use of force by PhxPD officers, including deadly force. The investigation will also seek to determine whether PhxPD engages in retaliatory activity against people for conduct protected by the First Amendment; whether PhxPD engages in discriminatory policing; and whether PhxPD unlawfully seizes or disposes of the belongings of individuals experiencing homelessness. In addition, the investigation will assess the City and PhxPD’s systems and practices for responding to people with disabilities. The investigation will include a comprehensive review of PhxPD policies, training, supervision, and force investigations, as well as PhxPD’s systems of accountability, including misconduct complaint intake, investigation, review, disposition, and discipline.
Not exactly the sort of thing that inspires trust. And certainly not the sort of thing that warrants a free pass on surveillance policies until long after new surveillance tech has been deployed. The Phoenix PD may have recently been involved in an unexpected burst of violence (I mean, committed by someone else against police officers), but that hardly justifies a careless rush into an expansion of the department's surveillance capabilities.
A whole bunch of people wasted Tuesday talking about technical measures. What technical measures, you might ask? The ones vaguely alluded to in the DMCA. Subsection 512(i) conditions the safe harbors on platforms (more formally called "Online Service Providers," or OSPs, for the purposes of the DMCA) "accommodat[ing] and [...] not interfer[ing] with standard technical measures." The statute goes on to describe them in general terms as "technical measures [...] used by copyright owners to identify and protect copyrighted works" that meet a few other criteria, including that they don’t unduly burden OSPs.
In 1998 when the DMCA was passed no technical measures met all the criteria. And, still, today, none do either. So it should have been a very short hearing. But it wasn’t. Instead we spent all day, plus lots of time earlier filing comments, all at the instigation of Senators Tillis and Leahy, having some people point out that no technical measure currently existing can meet this statutory criteria to help police for infringement without massive, unacceptable cost to OSPs and the expression – including copyrightable expression – they facilitate, and having other people instead stamp their feet and hold their breath, pretend up is down, left is right, and the world is flat, in order to declare that some somehow do anyway and that platforms should incur any cost necessary to deploy them.
And as for which technical measures we were talking about… we never really got there. There were references to fingerprinting technologies, like ContentID, the huge, expensive, and perpetually inaccurate system Google uses to identify potentially infringing files. There were references to watermarking systems, which some (like us) noted create significant surveillance concerns as people’s consumption of expression is now especially trackable. And there were references to upload filters as well, like the EU keeps wanting to mandate. But at no point was any specific technology ever identified so we could assess the benefits and harms of even encouraging, much less mandating, its broader use. We just all sort of nodded knowingly at each other, as if we all shared some unspoken knowledge of some technology that could somehow magically work this unprecedented miracle to make all rightsholders perfectly happy while not crushing OSPs’ abilities to continue to facilitate expression, create market opportunities for creators, and connect creators to audiences. Nor outright crush lawful expression itself as so many of these systems are already doing. When, of course, no such technology currently exists, nor is likely to exist any time soon, if ever at all.
Since the Copia Institute participated in this exercise in futility, we used the opportunity to remind everyone – and the record – in our comment and testimony that the entire conversation was happening in the shadow of the Constitution. For instance, while a system of safe harbors for OSPs is not inherently in tension with the First Amendment – indeed, protecting the platforms that facilitate Internet expression is a critical statutory tool for advancing First Amendment interests online – recent interpretations of the statutory language of Section 512 have been increasingly putting this safe harbor system at odds with the constitutional proscription against making a law that would impinge free expression. Any system, be it legal or technical, that causes lawful expression to be removed, or to not be allowed to be expressed at all, deeply offends the First Amendment. Such harm cannot and should not be tolerated in any statute or policy promulgated by the Copyright Office. The regulatory priority therefore ought to be, and must be, to abate this constitutional injury that’s already been occurring and keep it from accruing further. And under no circumstances should any provision of Section 512, including and especially the technical measures provision, be amended or interpreted in a way that increases the frequency or severity of this constitutional harm that the statute has already invited.
Because it also offends the spirit if not letter of the Progress Clause animating copyright law. You cannot foster creative expression by creating a system of censorship that in any way injures the public’s ability to express themselves or to consume others’ expression. So it is critically important to recognize how any technological measure might do that, because it will only hurt the creative expression copyright law is itself supposed to foster, as well as all the public benefit it’s supposed to deliver.
The story of Missouri's Department of Elementary and Secondary Education (DESE) leaking the Social Security Numbers of hundreds of thousands of current and former teachers and administrators could have been a relatively small story of yet another botched government technology implementation -- there are plenty of those every year. But then Missouri Governor Mike Parson insisted that the reporter who reported on the flaw was a hacker and demanded he be prosecuted. After a months' long investigation, prosecutors declined to press charges, but Parson doubled down and insisted that he would "protect state data and prevent unauthorized hacks."
You had to figure another shoe was going to drop and here it is. As Brian Krebs notes, it has now come out that it was actually the Governor's own IT team that was in charge of the website that leaked the data. That is, even though it was the DESE website, that was controlled by the Governor's own IT team. This is from the now released Missouri Highway Patrol investigation document. As Krebs summarizes:
The Missouri Highway Patrol report includes an interview with Mallory McGowin, the chief communications officer for the state’s Department of Elementary and Secondary Education (DESE). McGowin told police the website weakness actually exposed 576,000 teacher Social Security numbers, and the data would have been publicly exposed for a decade.
McGowin also said the DESE’s website was developed and maintained by the Office of Administration’s Information Technology Services Division (ITSD) — which the governor’s office controls directly.
“I asked Mrs. McGowin if I was correct in saying the website was for DESE but it was maintained by ITSD, and she indicated that was correct,” the Highway Patrol investigator wrote. “I asked her if the ITSD was within the Office of Administration, or if DESE had their on-information technology section, and she indicated it was within the Office of Administration. She stated in 2009, policy was changed to move all information technology services to the Office of Administration.”
Now, it's important to note that the massive, mind-bogglingly bad, security flaw that exposed all those SSNs in the source code of publicly available websites was coded long before Parson was the governor, but it's still his IT team that was who was on the hook here. And perhaps that explains his nonsensical reaction to all of this?
For what it's worth, the report also goes into greater detail about just how dumb this vulnerability was:
Ms. Keep and Mr. Durnow told me once on the screen with this specific data about any teacher listed in the DESE system, if a user of the webpage selected to view the Hyper Text Markup Language (HTML) source code, they were allowed to see additional data available to the webpage, but not necessarily displayed to the typical end-user. This HTML source code included data about the selected teacher which was Base64 encoded. There was information about other teachers, who were within the same district as the selected teacher, on this same page; however, the data about these other teachers was encrypted.
Ms. Keep said the data which was encoded should have been encrypted. Ms. Keep told me Mr. Durnow was reworking the web application to encrypt the data prior to putting the web application back online for the public. Ms. Keep told me the DESE application was about 10 years old, and the fact the data was only encoded and not encrypted had never been noticed before.
This explains why Parson kept insisting that it wasn't simply "view source" that was the issue here, and that it was hacking because it was "decoded." But Base64 decoding isn't hacking. If it was, anyone figuring out what this says would be a "hacker."
TWlrZSBQYXJzb24gaXMgYSB2ZXJ5IGJhZCBnb3Zlcm5vciB3aG8gYmVpZXZlcyB0aGF0IGhpcyBvd24gSVQgdGVhbSdzIHZlcnkgYmFkIGNvZGluZyBwcmFjdGljZXMgc2hvdWxkIG5vdCBiZSBibGFtZWQsIGFuZCBpbnN0ZWFkIHRoYXQgaGUgY2FuIGF0dGFjayBqb3VybmFsaXN0cyB3aG8gZXRoaWNhbGx5IGRpc2Nsb3NlZCB0aGUgdnVsbmVyYWJpbGl0eSBhcyAiaGFja2VycyIgcmF0aGVyIHRoYW4gdGFrZSBldmVuIHRoZSBzbGlnaHRlc3QgYml0IG9mIHJlc3BvbnNpYmlsaXR5Lg==
That's not hacking. That's just looking at what's there and knowing how to read it. Not understanding the difference between encoding and encrypting is the kind of thing that is maybe forgivable for a non-techie in a confused moment, but Parson has people around him who could surely explain it -- the same people who clearly explained it to the Highway Patrol investigating. But instead, he still insists it was hacking and is still making journalist Jon Renaud's life a living hell from all this nonsense.
The investigation also confirms exactly as we had been saying all along that Renaud and the St. Louis Post-Dispatch did everything in the most ethical way possible. It found the vulnerability, checked to make sure it was real, confirmed it with an expert, then notified DESE about it, including the details of the vulnerability, and while Renaud noted that the newspaper was going to run a story about it, made it clear that it wanted to make sure the vulnerability was locked down before the story would run.
So, once again, Mike Parson looks incredibly ignorant, and completely unwilling to take responsibility. And the more he does so, the more this story continues to receive attention.
As so-called "conservatives" (a decently large number of them appearing to actually be white supremacists and bigots engaged in harassment) complained Big Tech was slanted against them, a host of new services arrived to meet the sudden demand. Gab, Gettr, etc. hit the marketplace of ideas, promising freedom from the "censorship" of "liberal" social media platforms, ignoring evidence that indicated "conservatives" weren't actually being "censored," but rather extremists calling themselves "conservatives" were being booted for multiple violations of site policies.
New services arrived, promising unabridged speech and a safe space for bigots, transphobes, disgruntled MAGAts, and everyone else who felt oppressed because they frequently went asshole on main. But as soon as these sites debuted, they began moderating all sorts of speech, starting with the clearly illegal and ramping things up to eject trolls and critics.
Moderation at scale remains impossible. And it's not much easier when you're dealing with thousands of users rather than millions or billions. Decisions need to be made. While it was clear to see the upstarts were unfamiliar with the moderation issues bigger platforms have struggled with for years, it was also clear to see the upstarts were more than happy to "censor" speech they didn't like, despite claiming to be the last bastions of online free speech.
"You're free to say whatever you want," platforms like Gab and Gettr proclaimed, muttering asterisks under their breath. You were indeed free to say what you wanted, but that would not prevent your content or your account being banned, deleted, etc.
Gettr has experienced the growing pains of platform moderation. This has happened despite its initial guarantees (*offer void pretty much everywhere) that it would only remove illegal content. Porn is not illegal, yet Gettr seemed to have a problem with all the porn being posted by users, perhaps because a majority of it involved animated animals.
It also had problems keeping trolls from impersonating the illustrious conservative figures it hoped to host exclusively. Aggressive trolling resulted in Gettr temporarily banning Roger Stone's actual account under the assumption it couldn't possibly be the real Roger Stone. It followed this up a few months later by banning the term "groyper" in an effort to limit the amount of white supremacist content it had to host. This too was somewhat of a failure. First, it told white supremacists their awful (but not illegal) speech wasn't welcome on the "free speech" alternative to Twitter. Then it became apparent the ban on "groyper" could be easily evaded by adding an o or two.
Now, there's even more "censorship" to be had at Gettr. One of its financial backers is Guo Wengui, a (former) billionaire and supposed anti-communist who recently filed for bankruptcy. There are reasons to believe Wengui isn't the most trustworthy of online associates. Wengui left China and has spent several years living in a New York City hotel overlooking Central Park. He has applied for asylum but has yet to be granted this request. Despite apparently distancing himself from China, he is still hounded by claims that he's only in the US to obtain information he can deliver to the Chinese government. These allegations were made by Strategic Vision US during a lawsuit over business dealings the company had with Wengui.
Strategic Vision said it concluded Mr. Guo was seeking information on Chinese nationals who may have been helping the U.S. government in national-security investigations or who were involved in other sensitive matters, according to the filing.
“Guo never intended to use the fruits of Strategic Vision’s research against the Chinese Communist Party,” the court filing said. “That is because Guo was not the dissident he claimed to be. Instead, Guo Wengui was, and is, a dissident-hunter, propagandist, and agent in the service of the People’s Republic of China and the Chinese Communist Party.”
Others have echoed this allegation. While it has yet to be proven true, Gettr is insulating its bankrupted backer from online criticism by deleting content that insinuates Wengui is a Chinese spy.
Journalists at the Daily Beast spent a few days running accounts on Gettr to see if the "free speech" site had a problem with criticizing Wengui. Unsurprisingly, the "we won't censor" platform engages in plenty of moderation when it comes to speech it doesn't like.
In an attempt to test the claims that even so much as mentioning the allegations of Guo being a “spy” would result in a permanent suspension from the platform, The Daily Beast created six separate Gettr accounts critical of Guo over the past two weeks.
These accounts posted variations on the question of whether the platform’s billionaire benefactor is a “Chinese spy.” For example, one of the accounts asked, “Does Chinese spy Miles Guo fund Gettr?” It was banned from the platform just 19 minutes after its creation. “Guo a spy??” another Daily Beast-operated account asked in response to a post from the businessman.
All six accounts were promptly banned, with 83 minutes being the longest span of time a single critical post remained live. They were banned without notice of wrongdoing or explanation for the permanent suspensions.
The hypocritical chickens have come home to roost. You're free to run your mouth on Gettr with copious exceptions. And one of those exceptions is the repeating allegations about someone who put some money into Gettr. Meanwhile, over on Twitter, users are free to insinuate the company's principals and backers are in bed with the Chinese government without running afoul of the terms of service.
Gettr will undoubtedly continue to pretend it's a free speech champion, even as it engages in actions that show it's really no more protective of speech than any other platform. It will continue to disappoint refugees from other, more heavily-trafficked social media platforms by engaging in (completely lawful!) moderation of speech it would rather not see on its platform. And while it may be more inviting of general harassment of people with alternative viewpoints (which is generally a lot less fun in Gettr's echo chamber) and election/COVID misinformation, it sees absolutely nothing wrong with silencing dissent and criticism. Its promises of a social media Wild West are as empty as its promises to give Twitter users a better place to express their "conservative" views.
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There's been an unfortunate movement in the US over the last few years to try to argue that social media should be considered "common carriers." Mostly this is coming (somewhat ironically) from the Trumpian wing of grifting victims, who are trying to force websites to carry the speech of trolls and extremists claiming, (against all actual evidence) that there's an "anti-conservative bias" in content moderation on various major websites.
This leads to things like Ohio's bizarre lawsuit that just outright declares Google a "common carrier" and seems to argue that the company cannot "discriminate" in its search results, even though the entire point of search is to rank (i.e., discriminate) between different potential search results to show you which ones it thinks best answer your query.
There is even some movement among (mostly Republican) lawmakers to pass laws that declare Facebook/Google/Twitter to be "common carriers." There's some irony here, in that these very same Republicans spent years demonizing the idea of "common carriers" when the net neutrality debate was happening, and insisting that the entire concept of "common carrier" was socialism. Amusingly (if it weren't so dumb), Republican-proposed bills declaring social media sites common carriers often explicitly carve out broadband providers from the definitions, as if to prove that this is not about any actual principles, and 100% about using the law to punish companies they think don't share their ideological beliefs.
Unfortunately, beyond grandstanding politicians, even some academics are starting to suggest that social media should be treated like common carriers. Beyond the fact that this would almost certainly come back to bite conservatives down the line, there's an even better reason why it makes no sense at all to make social media websites common carriers.
They don't fit any of the underlying characteristics that made common carrier designations necessary in the first place.
While there were other precursor laws having to do with the requirement to offer service if you were "public callings" the concept of "common carriers" is literally tied up in its name: the "carrier" part is important. Common carriers have been about transporting things from point A to point B. Going back to the first use of the direct concept of a must "carry" rule, there's the 1701 case in England of Lane v. Cotton, regarding the failure to deliver mail by the postal service. The court ruled that a postal service should be considered a common carrier, and that there was a legitimate claim "[a]gainst a carrier refusing to carry goods when he has convenience, his wagon not being full."
In the US, the concept of the common carrier comes from the railroads, and the Interstate Commerce Act of 1887, and then to communications services with the Communications Act of 1934, and the establishment of an important bifurcation between information services (not common carriers) and telecommunications services which were common carriers.
As you look over time, you'll notice a few important common traits in all historical common carriers:
That's just not the case for social media. Social media, from the very beginning, was about hosting content that you put up. It's not transient, it's perpetual. That, alone, makes a huge difference, especially with regards to the 1st Amendment's freedom of association. It's one thing to say you have to transmit someone's speech from here to there and then have no more to do with it, but it's something else entirely to say "you must host this person's speech forever."
Second, social media is, in no way, a commodified service. Facebook is a very different service from Twitter, as it is from YouTube, as it is from TikTok, as it is from Reddit. They're not interchangeable, nor are they natural monopolies, in which massive capital outlays are required upfront to build redundant architecture. New social networks can be set up without having to install massive infrastructure, and they can be extremely differentiated from every other social network. That's not true of traditional common carriers. Getting from New York to Boston by train is getting from New York to Boston by train.
Finally, even if you did twist yourself around, and ignore all of that, you're still ignoring that even with common carriers, they are able to refuse service to those who violate the rules (which is the reason that any social media bans a user -- for rule violations). Historically, common carriers can reject carriage for someone who does not pay, but also if the goods are deemed "dangerous" or not properly packed. In other words, even with a common carrier, they are able to deny service to someone who does not follow the terms of service.
So, social media does not meet any of the core components of a common carrier. It is hosting content perpetually, not merely transporting data from one point to another in a transient fashion. It is not a commodity service, but often highly differentiated in a world with many different competitors offering very differentiated services. It is not a natural monopoly, in which the high cost of infrastructure buildout would be inefficient for other entrants in the market. And, finally, even if, somehow, you ignored all of that, declaring a social media site a common carrier wouldn't change that they are allowed to ban or otherwise moderate users who fail to abide by the terms of service for the site.
So can we just stop talking about how social media websites should be declared common carriers? It's never made any sense at all.
It's just no fun being a giant company aspiring to monopolize repair to boost revenues. On both the state and federal level, a flood of new bills are targeting companies' efforts to monopolize repair by implementing obnoxious DRM, making repair tools and manuals hard to find, bullying independent repair shops (like Apple does), or forcing tractor owners to drive hundreds of miles just to get their tractor repaired (one of John Deere's favorite pastimes). The Biden administration even just got done signing an executive order asking the FTC to tighten up its restrictions on the subject.
This week the list of right to repair legislation jumped by one with the introduction of the "Right to Equitable and Professional Auto Industry Repair" Act (REPAIR Act), which would mandate equitable access to repair tools and tech, boost the FTC's authority to handle consumer complaints, and mandate additional transparency by the auto industry:
"Americans should not be forced to bring their cars to more costly and inconvenient dealerships for repairs when independent auto-repair shops are often cheaper and far more accessible,” said Rep. Rush. “But as cars become more advanced, manufacturers are getting sole access to important vehicle data while independent repair shops are increasingly locked out. The status quo for auto repair is not tenable, and it is getting worse. If the monopoly on vehicle repair data continues, it would affect nearly 860,000 blue-collar workers and 274,000 service facilities."
The auto industry has been particularly obnoxious when it comes to providing independent access to data, tools, and repair manuals for cars with increasingly complicated internal electronics. That's a particular problem when an estimated 70 percent of U.S. cars are serviced by independent repair shops. The industry has also been obnoxious in their attempts to scuttle legislation attempting to address the problem, including running ads in Massachusetts that claimed an expansion of that state's right to repair legislation would only be of benefit to stalkers and sexual predators.
The problem for companies looking to monopolize repair is several fold. One, the harder they try to lock their technologies down, the greater the opposition grows. And that opposition tends to be both broad and bipartisan, ranging from the most fervent of urban Apple fanboys, to the most rural of John Deere tractor owners. This isn't a battle they're likely to win, and while we haven't seen federal legislation on this front passed yet, if the industries continue to push their luck in this space it's only a matter of time.
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