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Federal Judge: ‘One-Party Control Of The Press And Media Is A Threat To A Viable Democracy’

In a blistering dissent, Judge Laurence Silberman said The New York Times and Washington Post are 'Democratic Party broadsheets.'

By Mollie HemingwayThe Federalist

The control of major media by one political party is a dangerous threat to the country, a federal judge warned in a blistering dissent that called for courts to revisit libel laws that generally protect the press from being held liable for their reporting.

“It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news,” wrote Judge Laurence Silberman of the D.C. Circuit for the Court of Appeals. “It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy.”

Silberman argued that it’s time for courts to revisit New York Times v. Sullivan, which has shaped press law in favor of media outlets for more than five decades. The New York Times and the Washington Post “are virtually Democratic Party broadsheets. And the news section of The Wall Street Journal leans in the same direction,” Judge Silberman wrote in his March 19 dissent.

He said that orientation also controls the Associated Press and most large papers in the country, including the Los Angeles Times, Miami Herald, and Boston Globe. “Nearly all television—network and cable—is a Democratic Party trumpet,” Judge Silberman added.

Silicon Valley also has “enormous influence” over the distribution of news and it “similarly filters news delivery in ways favorable to the Democratic Party,” wrote Judge Silberman, highlighting the shocking suppression of stories about Joe Biden and his family when he was running for president.

In that case, Twitter and Facebook censored media outlets that reported accurately about the Biden family’s dealing with foreign entities. Twitter suspended users, including sitting White House press secretary Kayleigh McEnany, for merely sharing accurate information, and prevented people from sharing the information privately on its platform. Facebook said it would censor coverage of the Biden family corruption pending a “fact-check,” an unprecedented privilege given to Biden in the closing days of one of the closest presidential elections in history.

Only a few major media outlets are not controlled by the left, Silberman noted, citing Fox News, where this reporter is a contributor, the New York Post, and The Wall Street Journal. “It should be sobering for those concerned about news bias that these institutions are controlled by a single man and his son. Will a lone holdout remain in what is otherwise a frighteningly orthodox media culture? After all, there are serious efforts to muzzle Fox News,” he wrote. CNN hosts and other leftist activsts are currently on a campaign to deplatform their rival.

“Admittedly, a number of Fox’s commentators lean as far to the right as the commentators and reporters of the mainstream outlets lean to the left,” Silberman wrote in a footnote, in a dig at reporters inserting their extreme partisan views into news stories.

A New York Supreme Court judge last week ruled against The New York Times’ effort to get a defamation suit against it dismissed. The Times had said that its reporters were inserting opinion into news stories, and that opinions are not actionable for defamation. The argument didn’t hold sway with the judge, who critiqued the blending of news and opinion in purported news stories.

Another footnote critiqued the tepid response of some to “big tech’s behavior” censoring conservative speech. Silberman called repression of political speech in large institutions with market power “fundamentally un-American.”

“Some emphasize these companies are private and therefore not subject to the First Amendment. Yet—even if correct— it is not an adequate excuse for big tech’s bias. The First Amendment is more than just a legal provision: It embodies the most important value of American Democracy. Repression of political speech by large institutions with market power therefore is—I say this advisedly—fundamentally un-American,” Silberman wrote.

He then cited Tim Groseclose’s book, “Left Turn: How Liberal Media Bias Distorts the American Mind,” which empirically argued that media bias even a decade ago gave Democrat candidates an 8-10 point advantage. “And now, a decade after this book’s publication, the press and media do not even pretend to be neutral news services.” Silberman noted.

“The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace. And when the media has proven its willingness—if not eagerness—to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power,” Silberman concluded.


Filmmakers Plan Hunter Biden Biopic

By Peter RoffAmerican Action News

The movie that couldn’t be made from the story that couldn’t be told (because of mainstream and social media suppression ahead of the November 2020 election) is soon coming to a theater near you. Filmmakers Phelim McAleer and Ann McElhinney have announced they’ll begin shooting the Hunter Biden story – in all its embarrassing glory – sometime in the summer of 2021. 

The film, tentatively titled “My Son Hunter” will, the website says, “tell the story of the Biden Family Corruption through the eyes of Hunter Biden. You will be shocked by what you see on screen. You may think you know the story, but the truth is more damning than you could ever imagine!”

In interviews about the project, McAleer and McElhinney have said they intend to examine the life and exploits of President Joe Biden’s son younger son Hunter by focusing on “established facts” rather than speculation or conspiracy theories of the kind that circulated widely in the months leading up to the last election.

“Somebody has to tell this story, so we decided to make this movie,” McAleer told Fox News. “People need to know this story. It’s about some of the most powerful people in the country. Nobody knows it. But it’s shocking.”

The younger Biden’s life and business dealings were subjected to much speculation during the fall campaign. Allegations that he acted as a go-between or bagman for his father while the elder Biden was Vice President of the United States were seized upon by supporters of then-President Donald Trump who used them to try and blacken his opponent’s reputation.

The allegations were given a momentous push forward after stories began to circulate that a laptop had been located in a Delaware repair shop containing salacious material that might confirm some or all of the stories about financial misdeeds and international corruption that were being spread about the younger Biden’s activities  Those stories, which were eventually published in the New York Post, were later suppressed by social media outlets including Twitter which took the then-extraordinary step of suspending the paper’s account to keep the story from spreading. 

McAleer and McElhinney are hoping, they said, to raise $2.5 million over the next 60 days to fund the project but show little concern they will be unable to do it. A previous crowdfunding effort of theirs raised more than $2.3 million which they used to make an eponymous film about Philadelphia abortionist Kermit Gosnell that was released to theaters in October 2018.

Hunter Biden, who has repeatedly denied any wrongdoing, is under investigation by the federal government over tax matters as well as his business dealings in China and Ukraine.  Overseeing the inquiry is David Weiss, a Trump-era appointee to the position of United States Attorney for Delaware who was asked to stay on in his current role in early February after almost all other U.S. Attorneys were asked by the Biden Administration to submit their resignations by the end of the month. 

“This is an incredibly fascinating story,” McElhinney said. “It’s ‘Austin Powers’ meets ‘King Lear’ with a dash of ‘House of Cards.’ The story is so compelling that viewers on both sides of the aisle will find it incredibly entertaining.”

No casting choices have been announced and the script, McAleer said, was still in production. Filming is expected to begin in the summer of 2021, somewhere in Eastern Europe. 


New Colorado Senate Bill Establishes Government Ministry Of Truth

By Tristan JusticeThe Federalist

New Colorado Senate Bill Establishes Government Ministry Of Truth
Photo A.Davey / Flickr

A new Democratic-sponsored Colorado Senate bill is raising eyebrows with the proposed establishment of a state-run ministry of truth to regulate online speech.

The bill, titled “Digital Communications Regulation,” seeks the creation of a digital communications division under the state department of regulatory agencies to regulate online content available in the state. The division will be run by a new commission to serve as government-blessed arbiters of truth.

Under the legislation, proposed by Democratic state Sen. Kerry Donovan, the new commission is tasked with the authority to investigate and hold hearings on claims filed with the division that accuse a particular platform of engaging in what the government declares unlawful conduct. Such conduct under the proposal ranges from promoting “hate speech” to “disinformation,” “fake news,” and “conspiracy theories,” or content the commission determines is meant to “undermine election integrity.” The idea for a similar proposal at the federal level was floated by New York Democratic Rep. Alexandria Ocasio-Cortez in January.

The bill puts government force behind an already-implemented progressive purge pursued by Silicon Valley tech giants wielding unprecedented power over the digital public square, with many of the same rules already in place. Such rules, however, which have become more stringently enforced to justify censorship of conservatives and reporting unfavorable to progressive interests, have been applied with remarkable inconsistency.

“We all know from experience at other places where such rules are in place, they’re not applied equally,” Joshua Sharf, a senior fellow in fiscal policy at the Denver libertarian think tank Independence Institute, told The Federalist. “They’re actually impossible to apply equally.”

The contrast between the four-year conspiracy alleging President Donald Trump was a Russian agent and the online suppression of blockbuster revelations published by the New York Post last fall, which implicated then-Democratic presidential nominee Joe Biden in his son’s potentially criminal overseas business ventures, illustrates how rules governing online content are arbitrarily enforced for political purposes. There is no shortage of examples highlighting Silicon Valley’s double-standards.

“Realistically, we all know what the intent here is,” Sharf, who runs his own online blog, warned. “The intent here is to limit what Sen. Donovan considers conservative speech.”

Donovan did not respond to The Federalist’s request for an interview.

Under the senator’s legislation, communications-oriented online businesses, including social media platforms and media-sharing platforms with services offered to Colorado residents, would be forced to register with the new government ministry of truth. Failure to do so would classify as a class-two misdemeanor with up to a $5,000 fine each day until they comply.

Republican Colorado Sen. Jerry Sonnenberg, who sits on the State, Veterans, and Military Affairs Committee where the bill was introduced, railed against the proposal as unconstitutional and shared no faith that the independent commission appointed by the governor would dictate online content fairly.

“I have no confidence whatsoever that if the commission was formed it would be somewhat politically diverse,” Sonnenberg told The Federalist. “It’s almost like a giant commission just like Facebook to determine what posts are accurate and what are not.”

Republicans in the state’s upper chamber have already pledged their opposition, though Democrats control both houses of the Colorado legislature.

“Nobody wants an unelected commission of wannabe authoritarians deciding what is and is not ‘fake news’ and what we can and cannot read on the internet,” Colorado Senate Republican spokesman Sage Naumann told The Federalist. “We’re hopeful this bill never makes it to the floor.”

Sonnenberg said he saw no momentum for that happening, even as Democrats hold the majority.

“Anybody with a reasonable mind would look at this bill and go, ‘This doesn’t make sense.’ This indeed is a violation of our First Amendment, a blatant violation,” Sonnenberg told The Federalist. “If this is a party-line vote and it gets out of committee, we have bigger problems in our country.”


Tech Community Turns Against the New York Times

BlockNYT app bars 800 Times reporters from Twitter feed

By Santi RuizThe Washington Free Beacon

NY Times

A new app offers the ability to block New York Times reporters on Twitter en masse, escalating the feud between the tech community and the Paper of Record.

The BlockNYT project rolled out Monday morning anonymously on Twitter, promising the ability to “block 800 NYT reporters for the low price of $0.” It circulated rapidly among West Coast tech workers, who in recent years have grown to distrust the reporters who cover tech companies and online culture.

Reporters at the Times have developed an increasingly adversarial relationship with major tech figures. Angel investor Balaji Srinivasan has clashed repeatedly online with Taylor Lorenz, a tech reporter at the Times. Lorenz drew fire for claiming on February 6 that investor and entrepreneur Marc Andreessen, cofounder of venture capital firm a16z, had used the word “retard” in the voice-chat app Clubhouse. Multiple participants in the chat room denied the allegation.

The glossy “BlockNYT” website mimics the Times‘s front page. But rather than real news headlines, the page features 21 Times scandals, ranging from Walter Duranty’s whitewashing the Soviet famine in 1933 to the recent news that a podcast on ISIS got key facts wrong.

Reached for comment, the anonymous figure behind the app said, “The New York Times won a Pulitzer Prize for helping starve five million people to death. That was almost ninety years ago. Their star reporters lied on Twitter. That was yesterday.”

In June 2020, a Times journalist reportedly planned to doxx—or publicly identify—the anonymous figure behind “SlateStarCodex,” a popular blog in the tech community. The blogger, who claimed anonymity was vital for his safety and livelihood, deleted all posts on the blog, leading to widespread condemnation of the Times.

Blocklists have gained popularity in recent years as a tool for managing one’s experience online. Block Party, a popular blocklist app, bills itself as a “service for tackling online harassment.” In 2015, Twitter rolled out tools to make and share blocklists, but quickly removed the functionality.

Internet theorist L.M. Sacasas pointed out that BlockNYT also functions as a symbol of in-group identity: “The average user of an app like this isn’t really interested in blocking New York Times reporters so much as they are interested in being perceived as the sort of people who block New York Times reporters.” But he also noted that in an era of “information superabundance,” comprehensively blocking a specific outlet may not meaningfully decrease the amount of news the user receives.

That superabundance of information may be driving competition between the Times and tech. A Times piece over the summer documented the flood of journalists moving from legacy media organizations to Substack, an email newsletter platform that allows writers to monetize their writing directly. In a January 25 podcast, Times opinion writer Kara Swisher warned that Donald Trump could reach a mass audience through Substack. The newsletter platform is backed by several major venture-capital firms, including a16z.


The tech supremacy: Silicon Valley can no longer conceal its power

By Niall FergusonThe Spectator

‘To see what is in front of one’s nose needs a constant struggle,’ George Orwell famously observed. He was talking not about everyday life but about politics, where it is ‘quite easy for the part to be greater than the whole or for two objects to be in the same place simultaneously’. The examples he gave in his 1946 essay included the paradox that ‘for years before the war, nearly all enlightened people were in favour of standing up to Germany: the majority of them were also against having enough armaments to make such a stand effective’.

Last week provided a near-perfect analogy. For years before the 2020 election, nearly all American conservatives were in favour of standing up to big tech: the majority of them were also against changing the laws and regulations enough to make such a stand effective. The difference is that, unlike the German threat, which was geographically remote, the threat from Silicon Valley was literally in front of our noses, day and night: on our mobile phones, our tablets and our laptops. 

Writing in this magazine more than three years ago, I warned of a coming collision between Donald Trump and Silicon Valley. ‘Social media helped Donald Trump take the White House,’ I wrote. ‘Silicon Valley won’t let it happen again.’ The conclusion of my book The Square and the Tower was that the new online network platforms represented a new kind of power that posed a fundamental challenge to the traditional hierarchical power of the state.

By the network platforms, I mean Facebook, Amazon, Twitter, Google and Apple, or FATGA for short — companies that have established a dominance over the public sphere not seen since the heyday of the pre-Reformation Catholic Church. FATGA had humble enough origins in garages and dorm rooms. As recently as 2008, not one of them could be found among the world’s largest companies by market capitalisation. Today, they occupy first, third, fourth and fifth places in the market cap league table, just above their Chinese counterparts, Tencent and Alibaba. 

What happened was that the network platforms turned the originally decentralised worldwide web into an oligarchically organised and hierarchical public sphere from which they made money and to which they controlled access. That the original, superficially libertarian inclinations of these companies’ founders would rapidly crumble under political pressure from the left was also perfectly obvious, if one bothered to look a little beyond one’s proboscis. 

Following the violent far-right rally at Charlottesville in August 2017, Matthew Prince, chief executive of the internet service provider Cloudflare, described how he had responded: ‘Literally, I woke up in a bad mood and decided someone shouldn’t be allowed on the internet.’ On the basis that ‘the people behind the [white supremacist magazine] Daily Stormer are assholes’, he denied their website access to the internet. ‘No one should have that power,’ he admitted. ‘We need to have a discussion around this with clear rules and clear frameworks. My whims and those of Jeff [Bezos] and Larry [Page] and … Mark [Zuckerberg] shouldn’t be what determines what should be online.’

But that discussion had barely begun in 2017. Indeed, many Republicans at that time still believed the notion that FATGA were champions of the free market that required only the lightest regulation. They know better now. After last year’s election Twitter attached health warnings to Trump’s tweets when he claimed that he had in fact beaten Joe Biden. Then, in the wake of the storming of the Capitol by a mob of Trump supporters, Twitter and Facebook began shutting down multiple accounts — including that of the President himself, now ‘permanently suspended’ from tweeting. When Trump loyalists declared their intention to move their conversations from Twitter to rival Parler — in effect, Twitter with minimal content moderation — Google and Apple deleted Parler from their app stores. Then Amazon kicked Parler off its ‘cloud’ service, effectively deleting it from the internet altogether. It was a stunning demonstration of power.

It is only a slight overstatement to say that, while the mob’s coup against Congress ignominiously failed, big tech’s coup against Trump triumphantly succeeded. It is not merely that Trump has been abruptly denied access to the channels he has used throughout his presidency to communicate with voters. It is the fact that he is being excluded from a domain the courts have for some time recognised as a public forum. 

Various lawsuits over the years have conferred on big tech an unusual status: a public good, held in private hands. In 2018 the Southern District of New York ruled that the right to reply to Trump’s tweets is protected ‘under the “public forum” doctrines set forth by the Supreme Court’. So it was wrong for the President to ‘block’ people — i.e. stop them reading his tweets — because they were critical of him. Censoring Twitter users ‘because of their expressed political views’ represents ‘viewpoint discrimination [that] violates the First Amendment’.

In Packingham vs North Carolina (2017), Justice Anthony Kennedy likened internet platforms to ‘the modern public square’, arguing that it was therefore unconstitutional to prevent sex offenders from accessing, and expressing opinions on, social network platforms. ‘While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views,’ Justice Kennedy wrote, ‘today the answer is clear. It is cyberspace —the “vast democratic forums of the internet” in general … and social media in particular.’

In other words, as President of the United States, Trump could not block Twitter users from seeing his tweets, but Twitter is apparently within its rights to delete the President’s account altogether. Sex offenders have a right of access to online social networks; but the President does not. These companies have a dominance not seen since the heyday of the pre-Reformation Catholic Church

This is not to condone Trump’s increasingly deranged attempts to overturn November’s election result. Before last week’s riots, he egged on the mob; he later said he ‘loved’ them, despite what they had done. Nor is there any denying that a number of Trump’s most fervent supporters pose a threat of further violence. Considering the bombs and firearms some of them brought to Washington, the marvel is how few people lost their lives during the occupation of the Capitol.

Yet the correct response to that threat is not to delegate to Facebook’s Mark Zuckerberg, Twitter’s Jack Dorsey and their peers the power to remove from the public square anyone they deem to be sympathetic to insurrection or otherwise suspect. The correct response is for the FBI and the relevant police departments to pursue any would-be Trumpist terrorists, just as they have quite successfully pursued would-be Islamist terrorists over the past two decades.

The key to understanding what has happened lies in an obscure piece of legislation, almost a quarter of a century old, enacted after a New York court held online service provider Prodigy liable for a user’s defamatory posts. Congress then stepped in with the 1996 Telecommunications Act and in particular Section 230, which was written to encourage nascent firms to protect users and prevent illegal activity without incurring massive content management costs. It states: 1. No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.2. No provider or user of an interactive computer service shall be held liable on account of … any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.

In essence, Section 230 gives websites immunity from liability for what their users post if it is in any way harmful, but also entitles websites to take down with equal impunity any content that they don’t like the look of. The surely unintended result of this legislation, drafted for a fledgling internet, is that some of the biggest companies in the world enjoy a protection reminiscent of Joseph Heller’s Catch-22. Try to hold them responsible as publishers, and they will say they are platforms. Demand access to their platforms and they will insist that they are publishers.

This might have been a tolerable state of affairs if America’s network platforms had been subject to something like the old Fairness Doctrine, which required the big three terrestrial TV networks to give airtime to opposing views. But that was something the Republican party killed off in the 1980s, seeing the potential of allowing more slanted coverage on cable news. What goes around comes around. The network platforms long ago abandoned any pretence of being neutral. Even before Charlottesville, their senior executives and many of their employees had made it clear that they were appalled by Trump’s election victory (especially as both Facebook and Twitter had facilitated it). Increasingly, they interpreted the words ‘otherwise objectionable’ in Section 230 to mean ‘objectionable to liberals’.

Throughout the summer of last year, numerous supporters of Black Lives Matter used social media, as well as mainstream liberal media, to express their support for protests that in many places escalated into violence and destruction considerably worse than occurred in the Capitol last week. One looked in vain for health warnings, much less account suspensions, though Facebook says it has removed accounts that promote violence. 

Compare, for example, the language Trump used in his 6 January speech and the language Kamala Harris used in support of BLM on Stephen Colbert’s show on 18 June. Neither explicitly condoned violence. Trump exhorted the crowd to march to the Capitol, but he told them to ‘peacefully and patriotically make your voices heard’. Harris condemned ‘looting and… acts of violence’, but said of the BLM protestors: ‘They’re not going to stop. They’re not. This is a movement. I’m telling you. They’re not going to stop, and everyone, beware. Because they’re not going to stop. They’re not going to stop before election day in November, and they are not going to stop after election day. And everyone should take note of that on both levels.’ What exactly was the significance of that ‘beware’? 

Earlier, on 1 June, Harris had used Twitter to solicit donations to the Minnesota Freedom Fund, which posted bail for people charged with rioting in Minneapolis after the death of George Floyd. It would be easy to cite other examples. ‘Destroying property, which can be replaced, is not violence,’ Nikole Hannah-Jones of the New York Times told CBS in early June, at a time when multiple cities were being swept by arson and vandalism. Her Twitter account is still going strong.

The double standard was equally apparent when the New York Post broke the story of Biden’s son Hunter’s dubious business dealings in China. Both Twitter and Facebook immediately prevented users from posting links to the article — something they had never done with stories damaging to Trump. 

You don’t need to be a Trump supporter to find all this alarming. Conservatives of many different stripes — and indeed some bemused liberals — have experienced the new censorship for themselves, especially as the Covid-19 pandemic has emboldened tech companies to police content more overtly. In the UK, TalkRadio briefly vanished from YouTube for airing anti–lockdown views that violated the company’s ‘community guidelines’. A recording of Lionel Shriver reading one of her Spectator columns on the pandemic was taken down for similar reasons. Carl Heneghan and Tom Jefferson, two Oxford academics, fell foul of Facebook’s censors when they wrote for this magazine about a briefly controversial paper on the efficacy of masks in Denmark.

You might think that FATGA have finally gone too far with their fatwa against a sitting president of the United States. You might think a red line really has been crossed when both Alexei Navalny and Angela Merkel express disquiet at big tech’s overreach. But no. To an extent that is remarkable, American liberals have mostly welcomed (and in some cases encouraged) this surge of censorship — with the honourable exception of the American Civil Liberties Union. 

True, during last year’s campaign the Biden team occasionally talked tough, especially about Facebook. However, it is increasingly clear that the most big tech has to fear from the Biden-Harris administration is protracted antitrust actions focused on their alleged undermining of competition which, if history is any guide, will likely end with whimpers rather than bangs. Either way, the issue of censorship will not be addressed by antitrust lawsuits. 

It is tempting to complain that Democrats are hypocrites — that they would be screaming blue murder if the boot were on the other foot and it was Kamala Harris whose Twitter account had been cancelled. But if that were the case, how many Republicans would now be complaining? Not many. No, the correct conclusion to be drawn is that the Republicans had their chance to address the problem of over-mighty big tech and completely flunked it. 

Only too late did they realise that Section 230 was Silicon Valley’s Achilles heel. Only too late did they begin drafting legislation to repeal or modify it. Only too late did Section 230 start to feature in Trump’s speeches. Even now it seems to me that very few Republicans really understand that, by itself, repealing 230 would not have sufficed. Without some kind of First Amendment for the internet, repeal would probably just have restricted free speech further.

As Orwell rightly observed, ‘we are all capable of believing things which we know to be untrue, and then, when we are finally proved wrong, impudently twisting the facts so as to show that we were right. Intellectually, it is possible to carry on this process for an indefinite time: the only check on it is that sooner or later a false belief bumps up against solid reality.’ 

Those words sum up quite a lot that has gone on inside the Republican party over the past four years. There it was, right in front of their noses: Trump would lead the party to defeat. And he would behave in the most discreditable way when beaten. Those things were predictable. But what was also foreseeable was that FATGA — the ‘new governors’, as a 2018 Harvard Law Review article called them — would be the true victors of the 2020 election.


Big Tech Writes Its Ticket to the White House

Silicon Valley's allies are filling up the Biden administration. A big payoff is sure to follow.

By Washington Free Beacon EditorsThe Washington Free Beacon

President-Elect Joe Biden And Vice President-elect Kamala Harris Announce Miguel Cardona As Hhe Nominee For Education Secretary
Getty Images

Silicon Valley played an integral role in propelling Joe Biden to the White House. He raked in uncounted millions from liberal tech billionaires such as Netflix’s Reed Hastings, LinkedIn’s Reid Hoffman, and Apple heiress Laurene Powell Jobs; their employees shelled out $5 million more.

As Biden takes office, the techies want what they paid for. Reuters reports that executives at top firms like Amazon, Google, Facebook, and Microsoft are gunning for jobs at the Departments of Defense, State, Justice, and Commerce and also eyeing influential posts at the Federal Trade Commission and beyond.

They want two things: lucrative federal contracts and less scrutiny than they’ve gotten over the past four years, as President Donald Trump has made their bias against conservatives front-page news. The Department of Justice’s antitrust inquiry into big tech has already garnered bipartisan backing, including from a group of state attorneys general who have filed their own suit.

A Biden administration could make all of that go away. And it could ignore altogether these firms’ obsequious dealings with Communist China.

That explains the rush to fill seats: It’s unlikely that the techies moving into the Biden administration will check their business relationships at the door. Each hire is another pressure point for Silicon Valley’s most powerful to exploit.

This is hardly a problem unique to Democrats—you just hear about it less when they’re in the White House. This sort of revolving door was considered outrageous in the George W. Bush administration, when Democrats and the media harped relentlessly on Dick Cheney’s ties to Halliburton and charged that he was in the pocket of Big Oil. They raised the same ruckus when Trump appointed Exxon chief Rex Tillerson as his first secretary of state.

These unseemly connections aren’t new for Democrats. Google employees averaged a meeting a week with that Obama White House, influencing a president who “routinely pushed policy that pleased the tech-savvy.”

Now think what happens with those same lobbyists running the show. After rolling out transition teams free of connections to big tech, Team Biden added several Facebook executives over the Thanksgiving holiday. The transition team “has already stacked its agency review teams with more tech executives than tech critics,” Reuters notes, including “several officials from Big Tech companies, which emerged as top donors to the campaign.”ADVERTISING

Their influence doesn’t stop there. Biden on Tuesday named as an economic adviser Joelle Gamble, who last worked as an investor under eBay founder Pierre Omidyar, funneling funding to outfits run by other Biden appointees. Others may soon follow, like Mark Zuckerberg’s philanthropy chief and former Kamala Harris aide Mike Troncoso.

For just one example of how a problematic connection, consider WestExec, the consultancy cofounded by secretary of state nominee Tony Blinken. The firm helped Google win contracts from the Defense Department and advised Google cofounder Eric Schmidt’s philanthropy. Now, Reuters says, Schmidt is making recommendations for personnel in the Biden Defense Department, a textbook example of business relationships shaping government policy.

That’s just the start of the coming horse trading, hidden behind the Obama-era pretext that the White House is merely cultivating a relationship with the smartest people. But if personnel is policy, the Biden White House will be doing everything it can to comfort Silicon Valley’s most comfortable.


Intellectual Property: Stealing is wrong, even if you’re Google

By George LandrithRed State

While the rest of the country enjoyed their Thanksgiving dinners and began their Christmas shopping, the big brass at Google had a lot to think and worry about over the long weekend.  

You may recall that earlier this year, Google was the recipient of a bipartisan grilling in Congress over its predatory business practices. The big tech goliath was unable to offer up even a semblance of a convincing defense, leading some to speculate that an antitrust bust-up was awaiting on the horizon.  

Over the past few months, those rumblings have turned into reality.   

First, in October, the Department of Justice announced a formal antitrust lawsuit, putting the full weight of the federal government on Google’s neck. Then, last week — just two days before Thanksgiving — a bipartisan coalition of state attorneys general announced plans for a second lawsuit, which may come this month (a third antitrust suit spearheaded by Texas is also in the works). It is very likely that by next summer, every state and federal division of the judicial branch will be pursuing the breakup of the search engine giant.  

But it may be the Supreme Court, traditionally the final stop on legal journeys, that strikes the first blow.   

Observers may recall that back in October, the Supreme Court heard oral arguments in a copyright infringement case regarding the shady origins of Google’s Android software. The lawsuit’s gist is that Oracle claims Google sticky-fingered Java source code developed by its subsidiary, Sun Microsystems, to build up Android OS — a multi-billion-dollar revenue generator that runs on millions of smartphones. 

Consider some of the most damning details.   

According to the lawsuit, Google stole what it refused to buy after Sun offered Google a three-year license to use its code. The deal would have cost Google $100 million. Google decided that, as Woody Woodpecker used to say, free was a much better price. 

This is an interesting argument. If Google initially sought permission to use Sun’s code, it implies that Google knew perfectly well the code wasn’t just theirs to take. One doesn’t ask permission to use the public sidewalk. One does ask permission to borrow the neighbor’s car — and if the borrower takes it for a drive without permission, everyone understands what that is. 

The Supreme Court appears to understand this point very well, which doesn’t look good for Google.  
 
As Justice Brett Kavanaugh put it: “You’re not allowed to copy a song just because it’s the only way to express that (particular) song.” In other words, the fact that Stairway to Heaven by Led Zeppelin is the only song that sounds like Stairway to Heaven doesn’t mean that people who didn’t write it have a right to record it and sell it just because they like the way it sounds. 

If they did so, everyone would understand a theft had occurred, and the thief would be held accountable. 

Justice Neil Gorsuch made the point that the existence of one avenue, however popular it may be, doesn’t prevent creators from finding new ones. The fact the Led Zeppelin wrote Stairway to Heaven and made a lot of money selling albums in no way prevented Stone Temple Pilots from writing Plush and selling lots of albums of their own.

Gorsuch’s reasoning explains why other mobile operators managed to create their products without using Java at all. Java wasn’t the only way into town, so to speak, as Google claims; the tech giant just refused to find a new path.  

While we likely won’t know the official decision until the summer, Google is likely sweating bullets.  

It’s one of the wealthiest companies in history, but it’s facing an unprecedented level of legal pressure due to two decades of bad behavior. From the outside looking in, it appears the courts are circling the wagons.   

Consumers need not worry. None of the services Google provides are irreplaceable innovations or at threat of disappearing in the case of a breakup. It’s even possible that, with the market’s largest digital predator subdued, a breakup would lead to a flurry of new digital services. 

The only people who have to worry are Google shareholders and employees. They’re looking at legal cases and potentially billions in losses. Those prospects would dampen anyone’s holiday season. 


No Fair Trial For Big Tech

By David R. HendersonHoover Institution

How do you make a case against capitalism while appearing to defend consumers’ rights and values? You make a movie called The Social Dilemma.

The movie is cleverly done. It purports to oppose manipulation by Big Tech of social media users, calling out advertisers who manipulate people for profit. At the same time, the movie engages in its own manipulation. How does it do so? To quote Elizabeth Barrett Browning, “let me count the ways.”

State the credentials only of the people on your side

Throughout the ninety-four-minute movie, various commentators argue that social media have done great harm. In every case but one, the commentators criticize social media, warning us of its many harms. The movie states quite prominently, without exception, the credentials for all the negative commentators, and the credentials are impressive. The main commentator throughout is Tristan Harris, identified as a former design ethicist at Google and also as president of the Center for Humane Technology. Another commentator is Sandy Parakilas, identified as a former platform operations manager at Facebook and a former product manager at Uber. Yet another is Justin Rosenstein, whom the movie identifies as a major player at Google and then Facebook. A fourth is Shoshana Zuboff, an emeritus professor at Harvard Business School and author of The Age of Surveillance Capitalism. That’s not a complete list.

In the whole movie, only one person expresses skepticism about the idea that manipulation by social media is sui generis. He expresses this view at a panel in which he challenges the aforementioned Tristan Harris. This skeptic points out that newspapers and print media also played on people’s addictions and ability to be influenced. He notes that when television came along, it did so as well, but in different ways. This, according to the skeptic, is just the next thing.

Here’s what’s most interesting about this skeptic. Only because I’m an economist do I know who he is. “That’s Kevin Murphy,” I said to my wife, who was watching the movie with me. Who’s Kevin Murphy? You wouldn’t know from watching the movie. You had to pay close attention even to know it was Kevin Murphy. I had to pause and rewind and only then did I notice that he had a name card in front of him. Probably not one viewer in fifty notices that, and probably not one viewer in a thousand knows who he is. So let me tell you. Kevin M. Murphy is a star economist at the University of Chicago. He won the John Bates Clark Medal in 1997, given in those days only once every two years to the most outstanding American economist under age forty. He’s the only business school professor ever to win a MacArthur genius award. But the movie tells you none of that.

That’s how the movie deals with controversy: allow only one person to challenge the narrative and don’t even tell the viewer who he is. The basic narrative is that Facebook, Google, and other social media manipulate us. But when it comes to manipulation, those media have nothing on the makers of The Social Dilemma.

Hint at the problem without ever showing the problem

The bad actors in the movie’s narrative are advertisers and the wealthy social media firms. At one point in the movie, Parakilas states, “It’s not like they’re [the social media companies] trying to benefit us. Right? We’re just zombies and they want us to look at more ads so they can make more money.” What’s the problem with that? You might think in a standard-length movie, the critics would try to say why. Here’s the amazing thing: they don’t.

So let’s fill in the missing reasoning. Think about why companies would pay social media firms to advertise. It’s to get people to buy their products. If advertising on social media were seen as completely ineffective, companies would pay precisely zero for advertising. The fact that they keep paying and that social media companies get rich by selling advertising, month in, month out, means that advertising is effective.

Wouldn’t you want the critics in the movie to then point to how advertising manipulates our tastes for products, causing us to buy things we don’t “really” want? Amazingly, they don’t.

The closest the movie comes to making a case is near the end of the movie, when Rosenstein states:

Corporations are using powerful artificial intelligence to outsmart us and figure out how to pull our attention to what they want us to look at, rather than the things that are most consistent with our goals and our values and our lives.

But why would they do that? Isn’t it easier to sell us things that are consistent with our goals, our values, and our lives?

The critics point out numerous times that the companies are continuously refining their algorithms to learn more and more about you. They imply that that’s bad without ever saying why. There’s an old saying whose origin is unknown that goes as follows: “Half the money I spend on advertising is wasted, and the trouble is I don’t know which half.”

I think we can all agree that waste is bad. So isn’t it good rather than bad that advertisers and social media are continually honing their tools to put in front of your eyes items that you really have a high probability of buying? They aren’t there yet. Sometimes when I Google an item I’m thinking of buying, within what seems to be minutes an ad for that item shows up on my Facebook page. It’s almost always mildly annoying, either because the advertised item is a brand I don’t want or because I was just exploring and have decided that I don’t want that item at all. Which means that not half, but perhaps 90 percent, of that advertising was wasted on me.

Some people find it creepy that advertisers know so much about us. I don’t, although I understand the feeling. But think back to how advertisers tried to reach us before social media existed. Imagine that you live in a Jewish household. Which kind of advertising by mail would you dislike more: mailers premised on the assumption that you’re Jewish or mailers premised on the assumption that your household is Muslim, Catholic, or Buddhist?

Make up history

In one segment of the movie, Harris contrasts social media with previous innovations, claiming that no one objected to bicycles on the grounds that those who used them would spend less time with their families. Neither he nor the movie presents any evidence for his claim. But here’s what I found with just a little search (on Google, by the way) about early attitudes toward the bicycle. In a 2001 book titled The Ride to Modernity: The Bicycle in Canada, 1869–1900, author Glen Norcliffe quotes an essay by Heather Watts on early cycling in Nova Scotia. Watts writes:

At a time when higher education, women’s suffrage, and the movement for dress reform were all topics of heated discussion, the bicycle became one more liberating influence on the restricted lifestyle of Victorian women. . . . This element of freedom and independence greatly appealed to women. They were no longer left at home, but could go on outings with their women friends or accompany their young man on an equal basis. Once tasted, the new freedom was hard to abandon.

If bicycling was a liberating force for women, and if women were able to ride with their women friends, is there much doubt about whether some critics at the time claimed that bicycling women would spend less time with their families?

Play up the downside of social media with little attention to the upside

I do think the movie scored a direct hit on a huge downside of social media: the purported effects on people between the ages of ten and nineteen. It presented some disturbing data about the effects on young girls, especially those ages ten to fourteen, of media such as Instagram that encourage them to compare their faces and bodies with what seem to be regarded as ideal body types. Here are two shocking statistics about what has happened since 2011, when Facebook and other social media had become widespread: the number of girls aged ten to fourteen per 100,000 who are admitted to hospitals for cutting themselves or harming themselves in other ways has risen 189 percent, and the number of girls aged ten to fourteen per 100,000 who have committed suicide has risen 151 percent. 

One critic, Jonathan Haidt, a psychology professor at New York University’s Stern School of Business, gives a straightforward solution: set an age below which your child is not allowed to use social media and limit your child’s use of such media. To say it’s straightforward is not to say it’s easy. It’s probably hard, but parenting is hard.

To their credit, the critics do mention some upsides to social media. Harris says you can get on your smartphone and have a car show up quickly. Critic Tim Kendall, identified as the former president of Pinterest, notes that social media have helped people find long-lost relatives and organ donors. That’s pretty big.

But there are many more upsides. I can find some half-forgotten poem from high school when I remember only one sentence. That happened just last month with this poem. We can check a fact, we can follow friends, not just family, with whom we had lost touch, and we can compare airfares and make airline reservations in minutes, without either the use of a travel agent or even a phone call. I’ve just scratched the surface.

Discuss the upside as if it’s the downside

Critic Bailey Richardson, an early team member of Instagram, says that when the Internet first started, it was a weird, wacky place with lots of creativity. She recognizes that creative things still happen on the Internet, but now, she says, it feels like a “giant mall.”

That’s bad? Some people whom I’m close to have restricted diets because of various ailments. For them, shopping online has been wonderful. One person in particular needs to keep gluten out of her diet. And she is able to find appealing, tasteful, gluten-free items online much more easily than if she had to shop in her semi-urban, semi-rural part of the country. Imagine if she lived in, say, rural Nevada. Shopping online could be a godsend.

Attack wealth when it’s not that of your allies

At many points in the movie, the critics point out disdainfully how wealthy the social media companies are. That raises two questions. First, is there some chance they got that way by making things we want more available? Answer: yes. Second, how wealthy are these critics? Answer: very. Critic and investor Roger McNamee, for example, is a billionaire. Justin Rosenstein’s net worth is $150 million. The other critics are multimillionaires. Honestly earned wealth is not a mark against the wealthy, whether the wealthy be social media critics or social media firms.

Lay out your real agenda, with no evidence, at the end

Near the end of the movie, probably many viewers are hooked. Then we get to what seems to be the agenda of the critics and the movie makers: to end, or highly regulate, free markets.

Zuboff states, “These markets undermine democracy and undermine freedom and they should be outlawed.” The movie director possibly forgot to insert a sentence or two telling us which markets Zuboff is referring to. Whatever markets she wants to end, that would be a major hit on capitalism.

Rosenstein complains that social media corporations go unregulated “as if somehow magically each corporation acting in its selfish interest is going to produce the best result.” One gets the idea that he’s never read Adam Smith, who indeed did arguein The Wealth of Nations that “it is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own self-interest.”

Rosenstein also says mining the earth and pulling oil out of the ground are bad for humans. He claims as evidence of a warped, for-profit system that trees and whales are worth more dead than alive. And then he jumps the shark, or maybe I should say the whale, by saying “we’re the tree; we’re the whale.” How exactly social media companies kill us and how exactly they gain from dead consumers he leaves as an exercise for the viewer.

Coda

Various friends told me that The Social Dilemma would upset me. It did. As noted, I found the facts about young girls very disturbing. The biggest upset, though, is that a bunch of critics and a movie director manipulate viewers into not knowing that there is another side to this debate, understate the benefits of social media, and use the movie as a vehicle for a rant against capitalism. Other than that, the movie was great. 


Twitter Has Too Much Power Over America, And It Needs To End

It’s not enough to kick conservatives off of Twitter. Narrative control is the goal. Any alternative, any other avenue of ‘freer’ speech, must be shut down.

By Rachel BovardThe Federalist

The dominant Big Tech companies’ power to control the access and availability of information was unmasked during the Donald Trump presidency. The full extent and intent of that power has been further exposed in the 2020 election.

From Facebook, to Google, to Twitter, it is now clear that these companies have every intention of using the unprecedented control they have amassed, not to facilitate a diversity of speech and viewpoints, but to shape national narratives in the direction they prefer. Users—even those who are elected—will comply, or be banned.

Twitter, in particular, has shed any pretense of being a platform interested in facilitating free expression. In 2011, Twitter CEO Dick Costolo characterized Twitter as “the free speech wing of the free speech party.” The sentiment was echoed a year later by Tony Wang, general manager at Twitter UK, who claimed the company’s founding principles compelled it to remain “neutral” about the content its users posted.

Nearly a decade later, those sentiments have flipped. Twitter has spent the Trump years aggressing against the president, placing his tweets behind filtersblocking his press secretary, and censoring his Senate-confirmed advisors.

The platform aggressively ran interference for the Joe Biden campaign, refusing to allow a New York Post story detailing corruption in the Biden family from circulating on its platform. Users were prohibited for weeks from sharing the story, and their accounts were locked if they did.

Even the use of direct messages—Twitter’s supposedly private communication tool—was screened and filtered for wrong-think. That practice has continued outside of sharing the Hunter Biden story, casting doubt on Twitter’s claim that the company doesn’t read your direct messages. It is clear that, at least in some capacity, they do.

More than One Way to Rig an Election

All of this was under the guise of preventing “misinformation” from spreading on Twitter—that, presumably, could inform voter behavior. This made it all the more bizarre when Twitter’s deeply weird CEO, Jack Dorsey, claimed while under oath to the Senate Commerce Committee that the platform has no ability to influence election outcomes.

Sen. Ted Cruz, who had asked Dorsey the question, appeared almost caught off-guard by the absurdity of the claim. Cruz responded with the obvious follow-up. If you can’t influence election outcomes, he said, then why do you moderate political content at all?

But Twitter does moderate political content, and they very clearly do so in one direction. In the wake of the election, under the guise of moderating for “misinformation” and “fomenting violence,” the platform has banned the bombastic former Trump advisor Steve Bannon for stating that he’d like to see Dr. Anthony Fauci’s “head on a pike,” while happily allowing comedian Kathy Griffin to re-post her notorious photo of a beheaded Trump.

Richard Baris, one of the few pollsters who was right about the 2020 election results, had his account blocked for tweeting his findings about voter fraud. And not just his account, but that of his business, his newsletter, and his wife. There was “no reason given,” he said in a post on Parler, where he had just opened an account.

Parler, which has grown in popularity among conservatives as a Twitter alternative, is predictably being labeled as “a threat to democracy” by CNN. It’s not enough to kick conservatives off of Twitter. Narrative control is the goal. Any alternative, any other avenue of “freer” speech, must be shut down.

Twitter Doesn’t Share the News, It Starts the News 

Defenders of the social media platforms often do so in a vacuum. They defend Twitter’s content moderation as a private company expressing its First Amendment rights. Not only does this argument ignore that Twitter, like Facebook and Google, exercises its First Amendment rights in a privileged manner, it intentionally sidesteps the consequences Twitter’s actions have on Americans’ ability to consume news, think for themselves, and express their views away from Twitter.

Social media platforms are no longer merely independent actors, facilitating information sharing and viewpoints. Increasingly, they inform the news. Although it has a far smaller market share than Facebook and Google, Twitter has the most news-focused users and a much broader share of continuous, minute-by-minute engagement by news outlets, media elites, elected officials, and public policy intellectuals. Their engagement with the platform drives, and very much determines, news coverage.

“Though Twitter may not be a huge overall source of traffic to news websites relative to Facebook and Google, it serves a unique place in the link economy,” said a report by Nieman Labs in 2016. “News really does ‘start’ on Twitter.”

Recall the absurd story in 2017 that Trump killed an entire pond of koi fish while on an official visit in Japan. Multiple news outlets breathlessly covered the story, speculating wildly about the fish and mocking Trump. That story, which was false, began with tweets—not filed stories—from news outlets and reporters. The tweets then directedcoverage on multiple outlets.

Tucker Carlson, who has the most-watched cable news show in the country, spent the summer covering the violent elements of the Black Lives Matter protests in ways that every other network refused to do. Much of the coverage he aired on his show came from videos posted to Twitter by reporters on the ground, outside of the mainstream networks.

Earlier this month, Axios reported that newsrooms are planning “to invest more heavily in coverage of social media and internet trends as a way to observe political sentiment from a wider group of people.”

Twitter does far less to facilitate the news than it does to make it. Thus its content moderation decisions have ramifications far beyond Twitter. They echo down the corridors of what makes news in America, and who is allowed to do it, and what ordinary Americans are allowed to say about it. This means Twitter plays an outsized role in creating, gatekeeping, and sustaining the national narrative.

Twitter and the Woke Mob

Twitter’s offline consequences extend beyond its manipulation of the news narrative, as Twitter is increasingly the woke mob’s favorite venue of cancellation.

Late last week, a Twitter user with minimal followers complaint-tweeted at Target because it sold a book by Abigail Shrier questioning the wisdom of promoting irreversible transgender surgery and hormone therapy for children. Target subsequently banned the book, although it was later reinstated after public outcry.The platform’s role in the viral nature of cancel culture belies the notion that these are merely ‘private platforms’ with no larger effects.

The Lincoln Project tweeted the images of two attorneys working for the Trump campaign, their emails, phone numbers, and photos alongside the phrase “make them famous.” Twitter allowed the tweet to circulate on its platform for hours before it was finally removed.

Twitter does not drive these cancellation decisions as a matter of policy, but the platform’s role in the viral nature of cancel culture belies the notion that these are merely “private platforms” with no larger effects on free speech, free thought, and free behavior in America.

They also raise troubling questions about how that role will evolve. As the left continues to push for a social credit system—that is, say or suggest wrongthink, get banned from polite society—what role will social media play as the reporting Stasi arm of the woke mob?

Big Tech has grown from a handful of Silicon Valley startups to a handful of the most powerful companies in the world, exercising unprecedented control over minds, markets, behavior, and independent thought. They are changing how we live together.

How we choose to deal with them, politically, is less a binary question of “regulation” or “government interference in business” than it is, truly, a question of the social order; of who sets the terms of social engagement. Is it a free people, speaking through their rights and representative government, or a set of corporations weaponized by an illiberal woke agenda controlling our news narrative, information gathering, and social and cultural compliance?


Twitter Suspends True the Vote’s Account, Claims Military Ballot Deadline Tweet Violates Rules

By Peter RoffAmerican Action News

Specialist Steven Hitchcock, U.S. Army via Wikimedia Commons

Twitter, the social media giant that dominates online chatter, suspended Friday the account of the pro-ballot integrity group “True the Vote,” after alleging the group’s tweets about military ballots and voting deadlines violated the platform’s rules.

True the Vote President Catherine Engelbrecht responded angrily to the move, the latest in a series of actions by the media platform that have some accusing it of trying to stifle debate and the free flow of information during the election season to the detriment of conservative candidates and activists.

Twitter temporarily suspended the group’s account, according to a statement from Engelbrecht, after a Sept. 15 post that encouraged citizens and potential voters to confirm their counties were following the rules for mailing out ballots to members of the military serving in other states and overseas. 

Twitter and other social media sites have in recent months announced new policies to protect against tampering by foreign nationals and security agencies seeking to affect the 2020 election. The increased supervision of posts began after congressional investigating committees and an inquiry overseen by former FBI Director Robert Mueller all concluded the Russians had penetrated U.S. social media platforms with misleading messages during the 2016 campaign. No evidence was ever produced, however, that demonstrated beyond a reasonable doubt the Trump campaign colluded with Moscow in these activities as many Democrats charged then and still maintain was the case. 

Advocates for the military have for some time complained that ballots for local, state, and federal elections are often not mailed out early enough for soldiers, sailors, and Marines serving overseas to receive them, fill them out, and return them in time for them to be counted. Effectively, they say, this leaves America’s troops in the field – many of whom are presumed to vote Republican – disenfranchised.

“True the Vote, an election integrity advocacy organization, was sending out information of public interest regarding deadlines for our military voters, pursuant to the ‘Military and Overseas Voter Empowerment’ Act, federal law, which requires states to send absentee ballots to UOCAVA voters at least 45 days before federal elections,” Englebrecht said, adding that information “in no way” violated Twitter’s terms of service. 

The now-controversial tweet was “retweeted” by President Donald J. Trump two days after it was initially posted, an act Engelbrecht suggested in a statement might have provoked the ire of Trump opponents inside Twitter supervising what goes up on the platform while searching for electoral disinformation.

True the Vote is appealing the sanction and said it fully expects to have its access to the site restored in short order. Officials at Twitter could not be reached for comment.


SCOTUS To Rule On Charge That Google Success Was Built On Someone Else’s Intellectual Property

By Peter RoffTownhall Finance

Larry Dean is not as famous as he deserves to be but, as the man who developed the code that allows automatic teller machines to accept cards from other banks and outlets, he birthed a revolution in banking that forever changed the way people shop and get cash. His innovation allowed debit cards to function like credit cards, taking money directly from accounts and pushing the nation and world closer to a cashless economy.

Dean’s innovation made banking easier for millions. The application programming interfaces – the APIs – he developed were protected by copyright, meaning his intellectual labors produced great wealth. Outside Atlanta, he built Dean Gardens, a 33,000 square-foot, 15-bedroom home was so extravagant the annual up-keep alone cost $1.5 million. Infamous for the iconic “Liberace Meets Napoleon” style later imposed by Dean’s son – who lived there until 1994 – it featured a Moroccan theater, 24-karat gold sinks, a gallery of Hawaiian art, 13 fireplaces, an 18-hole golf course, and a 14-seat dining room whose most prominent feature was a wall-sized aquarium known as the “Predator Tank.”

This monument to conspicuous consumption, which might have given even pre-presidential Donald Trump pause, was bulldozed into rubble ten years ago. What endures is his code which, thanks to a legal push by Google seeking to eliminate the copyright protections coders enjoy for the APIs they develop might make innovators like Dean a thing of the past. 

Whether that happens is in the hands of the United States Supreme Court which, in a matter of weeks will finally hear oral arguments in the matter of Google v. Oracle, a landmark case that will decide the course of intellectual property development going forward. If a majority of the justices side with Google, then future innovations like what Dean wrought will likely be few and far between. 

The case stretches back over a decade. At one time, hard as it may be to believe, Google was losing out to BING in the critical mobile search engine market while the Apple iPhone was beating its brains out in the competition among smartphones.

Seeking to improve its competitive position, Google took 11,500 lines from Java’s API coding which the company used to pay to use to construct the Android mobile operating platform, installing its search engine as the default option. As Android grew more popular, so did the Google search engine, creating a boom for the company without, the suit alleges, paying licensing fees for the use of Java to its owner Oracle.

Google does not dispute it took the code. What its briefs do argue is that these types of software APIs may not be copyrightable and, even if they are, that Oracle cannot force them to pay for using it because what it did is covered under the fair use doctrine – and copyright law exception often used when news stories are reposted and circulated for comment but seldom in commercial situations.

As even those who are not lawyers may recognize, Google’s interpretation of the copyrightability of software and the fair use doctrine as applied in this situation cannot be sustained by historical and legal precedent or by common sense, not that it bothers the biggest of big tech very much.

Google’s layers have already admitted the company “doesn’t care much about precedent or law” when it comes to copyright. When the company didn’t like the licensing terms offered to it by Sun Microsystems (then the owner of Java) Adam Rubin, the father of Android, bluntly wrote in an e-mail the company would simply “do Java anyway and defend our decision, perhaps making enemies along the way.”

Being big doesn’t allow you to ignore the law. Google’s lack of concern for intellectual property doesn’t come as a surprise – some have argued its business model depends on using the IP of others without paying for it. And the court would do well to note that others have made similar complaints in the past including the American Association of Publishers, which settled a case alleging Google has posted books online with the permission of the authors, a lawsuit by PayPal arguing an ex-employee turned over trade secret IP used to construct Google Wallet, and a suit settled with Viacom over videos posted without permission to YouTube.

These issues persist, in part because of the lack of clarity in the law protecting intellectual property and because the white shoe lawyers employed by big tech make fortunes of their own finding, exploiting, even creating loopholes that end up exploiting consumers and inventors alike. The Supreme Court is being asked to slam the door on this kind of exploitation and should.

No one likes government interference in the marketplace or the court making law from the bench but that is not what a decision favorable to Oracle would do. A decision favorable to Google would set a precedent adversely affecting software development and every other industry that relies on innovation and creativity to maintain and enhance its market petition. For the sake of private property and our nation’s founding principles, the court must come down firmly on the side of protecting intellectual property rather than affirm the idea that loopholes exist allowing big tech to take the innovations of others for their use without compensation or consent. That’s not the American way. 


TikTok collected data from mobile devices to track Android users: report

By MARTY JOHNSONThe Hill

TikTok collected data from mobile devices to track Android users: report
© getty

Video app TikTok, which has come under intense scrutiny from the U.S. government, sidestepped Google policy and collected user-specific data from Android phones that allowed the company to track users without allowing them to opt out, according to an analysis conducted by The Wall Street Journal.

The report released Tuesday comes on the heels of President Trumpsigning an executive order that targets Beijing-based ByteDance, the parent company of TikTok. The order essentially gives the Chinese tech company 45 days to divest from the app or see it banned in the U.S.

“The spread in the United States of mobile applications developed and owned by companies in the People’s Republic of China continues to threaten the national security, foreign policy, and economy of the United States,” the executive order states. “At this time, action must be taken to address the threat posed by one mobile application in particular, TikTok.”

The White House has grown increasingly wary of TikTok, with the administration claiming that TikTok is selling American user data to the Chinese government. TikTok has repeatedly said that it has not and would never do so.

The data that was taken from the Android phones is a 12-digit code called a “media access control” (MAC) address, according to the Journal. Each MAC address is unique and are standard in all internet-ready electronic devices. MAC addresses are useful for apps that are trying to drive targeted adds because they can’t be changed or reset, allowing tech companies to create consumer profiles based off of the content that users view. 

Under the Children’s Online Privacy Protection Act, MAC addresses are considered by the Federal Trade Commission to be personally identifiable information.

A 2018 study from AppCensus, a mobile-app firm that analyzes companies’ privacy practices, showed that roughly 1 percent of Android apps collect MAC addresses.

“It’s a way of enabling long-term tracking of users without any ability to opt-out,” Joel Reardon, co-founder of AppCensus, told the Journal. “I don’t see another reason to collect it.”

Back in 2013, Apple safeguarded its phones’ MAC addresses and Google did the same with Android phones in 2015. However, TikTok got around this by accessing a backdoor that allows apps to get a phone’s MAC address in a roundabout way, the Journal’s analysis reveals.

The Journal says that TikTok utilized MAC addresses for 15 months, ending with an update in November 2019.

“We are committed to protecting the privacy and safety of the TikTok community,” a TikTok spokesperson told The Hill in a statement, citing the “decades of experience” of company chief information security officer Roland Cloutier.

The spokesperson added: “We constantly update our app to keep up with evolving security challenges, and the current version of TikTok does not collect MAC addresses. We have never given any US user data to the Chinese government nor would we do so if asked.”

Google told the Journal that it was “committed to protecting the privacy and safety of the TikTok community. Like our peers, we constantly update our app to keep up with evolving security challenges.”

Microsoft, which has said that it is actively working to purchase the wildly popular app, declined the Journal’s request for comment.


How a So-Called “Expert Witness” Derailed an East Texas Jury

Pat

The dynamic nature of our tech sector fosters a flow of new startups entering markets constantly.  The speed at which companies can collaborate and innovate can significantly influence which may be the next Apple or Google and which will fail in their first year.  These innovations, often the result of tireless investment in R&D, are frequently safeguarded through our system of intellectual property – through protections like patents and trade secrets.

However, abuse exists in nearly every system, and a 2018 Texas trade secrets decision boasts record-setting spoils for potential abusers and how a so-called expert witness can derail a jury. This case, if left unchecked, is a stark warning of just how high the cost of collaboration can be.

As I’ve previously written, since the enactment of the Defense of Trade Secrets Act (DTSA) in May 2016, the United States has experienced a rapid spike in trade secret lawsuit filings – with the number of civil trade secrets cases filed in federal and state courts increasing by 30%. 

For example, in 2018 a suit involving autonomous-driving technology trade secrets between Uber and Waymo resulted in a $245 million settlement in San Francisco early last year. In another California-based lawsuit, a jury awarded the U.S. branch of a Dutch semiconductor maker, ASML, $223 million in its suit against a local rival, XTAL, for misappropriating trade secrets.

But the $740 million award handed down in Bexar County, Texas’ Title Source v. HouseCanary takes the cake for 2018’s most costly verdict in a trade secrets case. This record-setting award is especially concerning because just days following the decision it emerged that the victor, HouseCanary, may never have possessed any of the trade secrets at issue in the first place.

Title Source, now known as Amrock, sued Silicon Valley-based HouseCanary for breach of contract when the company failed to develop an automated valuation model (AVM) mobile application. In the meantime, Amrock developed their own AVM based off common industry practices and publicly available information. HouseCanary, in turn, accused Amrock of trade secret misappropriation.  

The case is currently under appeal with the Texas Fourth Court of Appeals, which rests on the new evidence that emerged only after the award was already handed down. Whistleblower testimony from four former HouseCanary employees confirms that the app they were hired to develop was not a “functioning product,” was “vapor ware,” and had “none of the [promised] capabilities.”

Notably, the high-dollar remedy was awarded with reliance on suspect “expert” testimony from HouseCanary’s witness, Walter Bratic. As it turns out, Bratic knows his way to the witness stand, having established a career as an expert witness willing who doesn’t let logic or facts inhibit his “expertise,” so long as the check clears. Several of his lofty uncorroborated damages estimates have ultimately resulted in reversal on appeal with his logic-defying damages figures cited prominently among the reasons why the lower court had erred in its initial findings.

In what would have been one of the largest patent awards to date, a U.S. District Judge in East Texas in 2011  overturned a $625 million jury verdict in Mirror Worlds LLC v. Apple Inc.  The judge  pointed out “the scope of Mirror Worlds’ case and Apple’s potential liability exposure changed during the course of trial” and “Mr. Bratic did not adjust his damages calculations after dismissal of Mirror Worlds’ indirect infringement claims,” – which would have reduced damages by approximately 50% to about $300 million.

In his opinion overturning the verdict, the judge wrote the record “lacks substantial evidence to support the jury’s award of damages” liable for patent infringement, taking particular issue with the damages in Bratic’s dubious valuation suggesting Apple should pay whopping royalties.

However, these damages are only considered if it was proven that the infringed patent was so central to the entire product that it can be considered key driver of customer demand. On whether or not that standard was met, the appellate judge  stated, “The record lacks substantial evidence to support the jury’s award of damages. The Court grants Apple’s request for Judgment as a Matter of Law to vacate the jury’s damages award.” 

Bratic’s handiwork doesn’t end there. In 2013, his testimony in Xpertuniverse v. Cisco was deemed baseless and thrown out after he employed a bizarre “hypothetical negotiation” in which he contended both parties would have agreed to a $32.5 million lump sum royalty.

In the 2015 case IVS v. Microsoft, in which IVS accused Microsoft’s Xbox and Kinect of infringing on a facial recognition patent, the court ruled that Bratic erred in opining that royalty damages should be a running royalty of 3x the court-ordered royalty rate based on a prior case involving handheld controllers.

Likewise in his damages valuation testimony for HouseCanary, Bratic used an outrageous price of $11 per use for the AVM, which emails between Amrock employees from February 2015 make clear would never have been the agreed upon rate.

This case is the epitome of trade secrets litigation abuse – potentially an ominous high-dollar indication of an even costlier problem with broader impact on American innovation and competitiveness in a global technology sector. If the decision stands, the established precedent will further open the floodgates for abuse of IP protections – offering an attractive option for companies looking for a way around fair market competition and innovation.

What began as a $5 million contract has morphed into three-quarters of a billion dollars and a legal spectacle – in large part due to faulty reasoning and voodoo math of an expert witness with a history of over valuating for his clients and being overturned by the courts. Legal scholars and the entire tech sector are closely watching to see how this case plays out for the future of American innovation. 


New Home Security Systems Could Be Next Big Tech Privacy Invasion

By George LandrithThe Resurgent

When Facebook started out, most Americans thought they were getting a free service to help them connect with family and friends and that Facebook would be funded by the advertisements on their computer screens. Almost no one understood that their private information was being used to create detailed personal profiles that tracked virtually everything — where they live, who their friends are, what they like and dislike, where they shop, what products they buy, what news or events interest them, and what their political views are. Monetizing each of its users is how Facebook became a billion dollar business. But very few understood that they were, in fact, the product being sold and monetized when they signed up.

We are about to see this same phenomena on replay when it comes to new high tech home security systems. But this time it will be on steroids — because firms like Amazon will have access to a lot more than just the things we chose to post online. Products like Ring are able to store this information and it can be accessed months or years later.

They will have microphones and cameras in and around our homes. They could conceivably have access to the most intensely private and personal information and even have video and photos and sound files with our voices from inside and around our homes. How will this valuable private data be used?

These security firms store this information and it can be accessed months or years later. The question is — accessed by whom and for what purposes? If past experience is any indicator, your private information will be available to whomever is willing to pay for it, and for whatever purpose generates income. But you’re not being told that when you buy these new products.

In the past, home security systems, used high tech solutions to monitor doors and windows and glass breakage and smoke to notify you and/or to call 911 when there was a break in or a fire. But they were not collecting your private information. They were not recording your conversations. They were not recording video inside your home or even who might be coming and going from your home. But all that is changing. The new frontier in home security appears to be the Facebook model — make the client the product that the company is actually selling, but don’t make that clear up front.

Many firms have used high tech automation to lower monitoring costs, and some offer lower prices because they will make it back the same way Facebook did. If you thought Facebook was gathering information about you and your family, wait until you see what they and others can do with your private conversations in the most intimate settings at the front door and within your home.

With devices in our homes that listen to our voice so that they can turn on or off lights or adjust temperatures or turn on the television, or a hundred other things, we now know that employees who listen to the devices have held parties where they all share the most embarrassing or strange events that they’ve overheard. Simply stated, employees have saved and replayed private conversations that were recorded in our homes and used them for their personal amusement. I’m pretty confident that wasn’t in the “User Agreement.”  So we have to understand the potential for abuse of our private information is real and, in fact, likely.

If consumers want security services that record voice and video in and around their home, they have the right to choose that. But to be a real choice, there must be a full and complete disclosure in plain English and there must be real legal accountability for violations of the agreement.

We cannot make an informed decision when the marketing of these devices suggests that they are simply a lower cost, higher tech home security solution. That’s deceptive and it is designed to mislead consumers and lull them into a false sense that their privacy isn’t at risk.

We have the right to know what private information, voice recordings, photos and video are being recorded and stored. How will that information be used? Will it be sold? Will it be used at employee parties to get a laugh? Who has access to your private and intimate data? If you talk about something in the privacy of your bedroom, will you begin receiving push advertisements on that exact topic?

Policymakers should create clear standards that allow consumers to make informed choices. Consumers have every right to invite companies and their employees into their private lives. But it shouldn’t come as a surprise to them what the real deal is. Disclosure allows Americans to decide if they want a home security system or if they want to invite a large corporation into their home to surveil them so that they can expand their profits.


Preventing Facebook, Google and Twitter from discriminating against conservatives

By Peter RoffThe Washington Times

Photo by: Matt Rourke
FILE – This April 26, 2017, file photo shows the Twitter app icon on a mobile phone in Philadelphia. Twenty-six words tucked into a 1996 law overhauling telecommunications have allowed companies like Facebook, Twitter and Google to grow into the giants they are today. Those are the words President Donald Trump challenged in an executive order Thursday, May 28, 2020 one that would strip those protections if those companies engaged in editorial decisions like, for instance, adding a fact-check warning to one of Trump’s tweets. (AP Photo/Matt Rourke, File)

On Thursday, President Trump issued an executive order calling for new regulations under Section 230 of the 1996 Communications Decency Act that, he says, will prevent Big-Tech platforms from continuing what many believe is a pattern of discrimination against conservatives. 

We’re not sure that’s the case — just as we’re not sure that much, even all of it will survive the inevitable challenges it will face in the courts. What we do know is that his effort to change the interpretation of Section 230 of the 1996 Communications Decency Act, just like his call for reform of libel laws during the 2016 campaign, should spark a national conversation about free speech that would be healthy for our republic. 

Instead, the whole thing will ground down in pitched rhetoric passing back and forth between the president’s supporters and those who believe he is single-handedly responsible for the destruction of the nation, especially its core values and its reputation for having a civilized political process.

It seems clear Twitter’s Jack Dorsey, by allowing the presidential tweets to be footnoted, he’s acting like an editor, commenting on posts and making decisions about what other people can see. On its face, this would seem to put his platform outside the safe harbor Section 230 establishes to protect tech companies from being held liable in civil suits for things posted by platform users.

“In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to handpick the speech that Americans may access and convey on the internet,” the order says. “This practice is fundamentally un-American and anti-democratic. When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power. They cease functioning as passive bulletin boards, and ought to be viewed and treated as content creators.”

That ought to be a nifty jumping-off point for a robust discussion of speech and how the protections provided by the First Amendment factor in — or don’t — to the part of the national conversation carried on in cyberspace. Legal scholars can point to numerous decisions upholding the idea the government can not infringe on speech, defined broadly to included campaign contributions, flag burning, pornography, as well as the written and spoken word when it occurs in the public square. That’s clear and has shaped a culture whose values generally extend into private space. 

But what if the “public square,” however one defines it, now exists predominantly in a place that is privately owned. It’s worth discussing whether information carriers and conveyors like Twitter, YouTube, Facebook and Google have a responsibility to keep the space they own and operate open to all points of view, including the ones with which they disagree as well as the ones they may find abhorrent?

A strict reading of the U.S. Constitution would say as a matter of law, they don’t. But what about, to borrow a phrase so popular these days with those who would regulate just about every other aspect of the U.S. economy, their corporate social responsibility?

Further, the potential removal of Section 230 protections from any platform — which, as a matter of full disclosure, we also enjoy concerning the comments posted by readers of this our anything else we publish but not for the things we publish online or in print — is an opportunity for a vigorous discussion of the costs imposed on speech by the threat someone might get sued. 

On the one hand, as we’ve seen an awful lot in the Trump era, people on both sides of the aisle have been telling outrageous lies and fabrications, made egregious exaggerations, and sullied the reputations of political leaders in both parties, journalists and entrepreneurs.

This had added an unpleasantly coarse overtone to the national debate yet, because of the way charges of libel, slander and defamation are viewed by the courts based on the existing case law, the victims of these slurs are often left without recourse and unable to recoup damages, if any. Tort reform is long overdue, we have long held, but some fresh eyes on this issue might help restore some sanity to a news business, forgive our obvious bias, driven by breaking television segments rather than the more thoughtful approach often taken by print media. 

What the president has ordered is likely more a tempest in a teapot than a challenge to the constitutional order. But it raises issues worth talking about, intensely and for a long time in search of a new consensus concerning the role Big Tech plays in conveying information to the American people. Facebook’s Mark Zuckerberg has it right when he says these platforms shouldn’t be “arbiters of truth.” That doesn’t mean we shouldn’t have a conversation about what they should be.


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