Mere days ago, we discussed the bonkers path Twitch chose for itself in dealing with a flood of DMCA takedowns issued by the RIAA. The whole episode screamed of panic. Rather than dealing with DMCA takedowns via the normal method -- taking down the content, providing the content maker with a path for a counternotice, and then putting the content back if no lawsuit was filed -- , Twitch, instead, took the extraordinary action of simply and permanently nuking the videos in question. It then, rather brazenly, informed the content maker it had done so and advised them to "learn about copyright law." In fact, given its actions, there is some question as to whether or not this is all enough to have lost Twitch its safe harbor protections.

Regardless, it would be an understatement to suggest that this pissed off the Twitch community. The public backlash was both swift and severe, with content producers openly wondering if it was time to march off to a different platform entirely. Well, the very next day, Twitch began teasing a new offering coming in November and promoted this tease by releasing a sought after emote to all Twitch users.

Yesterday, Twitch took to teasing something that’s happening on November 14 (likely a digital convention called GlitchCon), as though everything is right as rain and not a corporate-friendly garbage fire. Twitch tweeted out a video that said “There’s a place where all Kappas are golden” and then temporarily turned all Kappa emotes gold.

For perhaps as long as Twitch has existed, there has been a myth: On exceedingly rare occasions, if the stars align perfectly, the ever-popular “Kappa” chat emote will turn gold. Some have suggested that a single Twitch user receives golden Kappa abilities every 24 hours. Others believe you have to fulfill highly specific prerequisites in order to unlock it. Yesterday, out of the blue, Twitch gave it to everybody. Twitch streamers and viewers, in turn, did not give a shit, because they were too busy recovering from the DMCApocalypse.

It was actually worse than streamers and users not giving a shit. This fully angered people, given Twitch's actions merely hours earlier. Streamers ran to Twitter and elsewhere to congratulate Twitch on its completely tone-deaf attempt to win over users with an emote, while others noted that Twitch had some serious communicating to do with the community and "shiny emotes" ought not have been on the agenda. Others once again wondered allowed if Twitch was the right platform on which to stream.

“Twitch gets slammed by the music industry, meanwhile they changed all the Kappas to gold, maybe in the hopes we all forget about how terribly the company has been running,” said Rocket League pro Lethamyr. “I think it’s nearly time to stream live on YouTube.”

And its not as though Twitch's extreme actions have even gotten the RIAA and its comrades off of the platform's back. Instead, various industry groups released a letter still complaining that Twitch wasn't doing enough on the copyright front and was mismanaging its Soundtrack by Twitch feature, which is supposed to help streamers use authorized music.

In other words, in a world where Twitch was presented with the choice of siding with its own content creators and users, or the copyright industry associations, it took the bold step of managing to piss off everyone instead. That it thought that golden emojis would somehow either stave off criticism of the platform, or at least be received without this resulting anger, seems to indicate that there are some very out of touch folks running this company at the moment.

So Quibi, the Hollywood dream of creating a new "professional" video streaming service by throwing $1.75 billion at Jeffrey Katzenberg and Meg Whitman and hoping they could create something, lasted all of 199 days before announcing that it was throwing in the towel (even though it apparently still has a chunk of that cash on hand, which it will be handing back to some investors). As we noted when it launched, Quibi is the perfect example of Hollywood thinking about the internet. It overvalued the content (and believed that you got the best content by throwing money at big names), and completely undervalued the internet and the fact that the killer application of the internet is community and communication.

For decades now, we've pointed out time and time again that Hollywood seems to view the internet through the lens of their existing industry -- one built up with a few giant gatekeepers who "greenlight" what content gets made -- and that the content they pick must be financed with ungodly sums of money. I'm reminded of the former NBC exec who quizzed me years ago about how to make sure his company could keep making $200 million movies. As I've noted repeatedly in the 15 years since I was challenged over that, the whole question is wrong. No one in the tech industry demands that others explain "how do we keep making $5,000 computers." The industry looks at how best to serve customers -- and often looks for creative ways to do it cheaper and more efficiently, rather than just setting a cost and tossing cash into it.

Quibi was the result of this kind of hubris: taking the Hollywood approach to an internet world. And it showed.

As James Surowiecki highlights in his own post-mortem, Quibi is basically the opposite of what a compelling internet service is because it relies on the idea of the brilliant visionary anointing the best content, rather than letting it bubble up via the wisdom of the crowds.

I find it notable that Quibi shut down the week that there was a flood of stories (and TV commercials) featuring Nathan Apodaca, the Idaho potato farmer who's random TikTok video of himself on a skateboarding heading into work (after his truck broke down) while drinking cranberry juice from a giant bottle and singling along to Fleetwood Mac went super viral. It was also a "quick bite" video, but it was basically the anti-Quibi. That one random video going viral has even brought Fleetwood Mac's "Dreams" back onto the charts 43 years after the song came out.

That's the power of the internet. It allows anyone to create. It allows anyone to share. And out of all of that, it allows some amazing content to bubble up, because tons of people like it -- and not because some super rich Hollywood dude decides "this is what the people want."

Last month we wrote about an absolutely ridiculous situation in which the DOJ sought to insert itself into the long-running defamation case brought by E. Jean Carroll against Donald Trump. As we noted, Carroll's defamation claims seem fairly weak. They're part of a pattern of somewhat sketchy defamation claims in which someone accuses someone of something awful, and then the accused person denies it -- and the accuser says the denial is defamation.

In this case, Carroll claims that Trump sexually assaulted her years ago. Trump denied even knowing her. She sued for defamation. Again, the case seems pretty weak and I think Trump has a decent chance of winning. However, despite trying, Trump and his personal lawyers failed to stop the discovery process, in which she's seeking a sample of his DNA as part of proving her case. At that point, the DOJ stepped in, citing the Westfall Act, which requires the DOJ to step in and take over cases if the Attorney General "certifies" that the actions being sued over were done by a federal employee while "acting within the scope of his office or employment." And the key bit here: because of sovereign immunity, you cannot sue the federal government for defamation. So if the court allowed the DOJ to step in, in place of the President, the case would then need to be dismissed immediately.

And, thus, the argument the DOJ made was that Trump denied sexually assaulting Carroll... as part of his job as President of the US. As we pointed out in our original post, there were all sorts of reasons why this was ridiculous. Ken White did point out that there are some rulings on the books saying that politicians answering questions from the press about their personal lives is part of their job description, and thus it was possible that a judge might actually side with the DOJ.

However, the judge did not do that at all. In a 61 page, very detailed ruling, Judge Lewis Kaplan (last seen here berating copyright troll Richard Liebowitz) rejected basically every last bit of the DOJ's argument. He did so on two key grounds. There was the reason that lots of us expected: that denying you sexually assaulted someone is not part of the job of being President:

A comment about government action, public policy, or even an election is categorically different than a comment about an alleged sexual assault that took place roughly twenty years before the president took office. And the public’s reasons for being interested in these comments are different as well. The president’s views on the former topics are interesting because they alert the public about what the government is up to. President Trump’s views on the plaintiff’s sexual assault allegation may be interesting to some, but they reveal nothing about the operation of government.

Separately, Judge Kaplan notes that the DOJ messed up its filing and left the strongest argument it had out of the initial filing and only put it in the reply brief. That's a no-no. You have to include all your arguments upfront.

The government’s best argument on this point is that President Trump’s statements about Ms. Carroll were within the scope of his employment in that refuting her accusation furthered his ability to govern effectively because the accusation was reported widely and charged him with the commission of a serious crime. But there are at least three answers to that objection.

As an initial matter, the government first made the argument in its reply brief, thereby foreclosing the plaintiff from responding to it. As previously discussed, it thereby waived the argument as its counsel agreed in open court, as previously discussed.

Second, the Court would reject the argument even if it were not waived. While the government’s position is not entirely without merit, it goes much too far. Accepting it would mean that a president is free defame anyone who criticizes his conduct or impugns his character – without adverse consequences to that president and no matter what injury he inflicts on the person defamed. Indeed, the same would be true for many government officials, who plausibly could argue that criticism of their behavior or character, even if completely unrelated to their government employment, would undermine their ability to perform effectively while in office.

Perhaps more surprising, though, is that Judge Kaplan argued that the Westfall Act doesn't even apply to the President because the President does not qualify as a federal employee under the Act. I wasn't expecting that, and it sounds a bit counterintuitive, but the court makes a surprisingly compelling argument:

The president is a constitutional officer. He occupies the highest office in our nation, which is created by Article II of the Constitution. But that is not what Section 2671 requires. It speaks only of “officers . . . of any federal agency,” not officers of the United States within the meaning of the Constitution. So we turn to the question whether the president is an officer “of any federal agency” within the meaning of Section 2671. As noted above, Section 2671 states that the term “federal agency” “includes the executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States.”

At the outset, it is apparent that this definition does not include the entire executive branch. Although Congress referred to “the executive departments,” the fact that the phrase is plural makes clear that Congress did not mean “the executive branch.” Congress knew how to refer to an entire branch of government, as evidenced by the fact that the very next words of the statute are “the judicial and legislative branches.” The plain meaning of this language is that members of Congress, federal judges, and the staffs of both all are included in the term “federal agency.” But the entire executive branch is not. Only those parts of the executive branch that fall within the other terms of the definition are included.

The argument goes on for a few pages and then notes:

Because the president is at the apex of the executive branch, many think of him, in a colloquial sense, as the “head” of many federal departments, agencies, and organizations. At the very least, one might imagine that he leads some agency at the core of the executive branch. The government has not attempted to identify any such agency in its papers, but the two most obvious candidates are the Executive Office of the President (“EOP”) and the president’s cabinet. But neither entity fits the bill. The head of the EOP, which is a network of agencies, is the president’s chief of staff. And even if one were to call the cabinet an “executive department” or “independent establishment” – a dubious contention – the president himself is not a member of the cabinet, although the vice president is.

Indeed, the basic civics lessons on the White House’s website draw a clear distinction between “the executive branch,” “the executive departments,” and “federal agencies.” Its page on “The Executive Branch” states that the Constitution vests in the president “[t]he power of the Executive Branch” and that “[f]ifteen executive departments – each led by an appointed member of the President’s Cabinet – carry out the day-to-day administration of the federal government.” It states also that the “executive departments” “are joined in this [effort] by other executive agencies such as the [Central Intelligence Agency] and Environmental Protection Agency, the heads of which are not part of the Cabinet, but who are under full authority of the President.”

There's a lot more on this, but the key point that is made is that the Westfall Act was responding to a specific Supreme Court case about federal employees. But there was another case that predated that, regarding Richard Nixon, noting that the President already has immunity from lawsuits regarding official acts. In other words, Congress had no reason to make the Westfall Act cover the President because the President was already immune from lawsuits over official acts.

In 1982, the Supreme Court decided in Nixon v. Fitzgerald67 that the president “is entitled to absolute immunity from damages liability predicated on his official acts.” So when the Supreme Court decided Westfall just six years later and held that “federal officials are not absolutely immune from state-law tort liability for all actions committed within the outer perimeter of their duties,” it clearly was not referring to the president. When Westfall referred generally to “federal officials,” it merely expanded the potential amenability to suit and liability of that more limited group of individuals.

Congress was well aware of this background when it passed the Westfall Act. As the Supreme Court later wrote, “[w]hen Congress wrote the Westfall Act, which covers federal employees generally . . . , the legislators had one purpose firmly in mind.” That purpose was “to ‘return Federal employees to the status they held prior to the Westfall decision.’” There was no need to extend the protections of the Westfall Act to the president, whom the Supreme Court evidently recognized was not a “federal employee,” for the very good reason that the president already had “absolute immunity from damages liability predicated on his official acts” by virtue of Nixon v. Fitzgerald.

Unless one ignores Nixon, it is impossible to read Westfall as applying to the president. Given that the “one purpose” of the Westfall Act was to “return Federal employees to the status they held prior to the Westfall decision,” Congress presumptively was aware that neither Section 2671 nor the FTCA applied to the president. It therefore had no reason to extend the Westfall Act to that office.

And, since denying sexual assault is not part of his official job, none of this matters anyway. The President is not able to sidestep the lawsuit. Well, yet. We'll see what sort of appeals happen. Or what happens if Trump is no longer President in the near future...

It's been more than a half-decade since it made headlines, but the NSA's hardware manipulation programs never went away. These programs -- exposed by the Snowden leaks -- involved the NSA compromising network hardware, either through interception of physical shipments or by the injection of malicious code.

One major manufacturer -- Cisco -- was righteously angered when leaked documents showed some of its hardware being "interdicted" by NSA personnel. It went directly to Congress to complain. The complaint changed nothing. (Cisco, however, changed its shipping processes.) But even though the furor has died down, these programs continue pretty much unhindered by Congressional oversight or public outcry.

One legislator hasn't forgotten about the NSA's hardware-focused efforts. Senator Ron Wyden is still demanding the NSA answer questions about these programs and give him details about "backdoors" in private companies' computer equipment. The DOJ and FBI may be making a lot of noise about encryption backdoor mandates, but one federal agency is doing something about it. And it has been for years.

Not only has the NSA installed its own backdoors in intercepted devices, it has been working with tech companies to develop special access options in networking equipment. This allows the agency to more easily slurp up communications and internet traffic in bulk. Senator Wyden wants answers.

The agency developed new rules for such practices after the Snowden leaks in order to reduce the chances of exposure and compromise, three former intelligence officials told Reuters. But aides to Senator Ron Wyden, a leading Democrat on the Senate Intelligence Committee, say the NSA has stonewalled on providing even the gist of the new guidelines.

“Secret encryption back doors are a threat to national security and the safety of our families – it’s only a matter of time before foreign hackers or criminals exploit them in ways that undermine American national security,” Wyden told Reuters. “The government shouldn’t have any role in planting secret back doors in encryption technology used by Americans.”

No one knows what's in the guidelines and whether they forbid the NSA from backdooring hardware or software sold to US buyers. All the NSA is willing to say is it's trying to patch things up with domestic tech vendors by, um, giving them more stuff to patch up.

The agency declined to say how it had updated its policies on obtaining special access to commercial products. NSA officials said the agency has been rebuilding trust with the private sector through such measures as offering warnings about software flaws.

This is a welcome change after years of exploit hoarding. But there's no reason to believe the NSA isn't holding useful flaws back until they've outlived their exploitability. As for the built-in backdoors, the NSA refuses to provide any details. It won't even answer to its oversight. And if it won't do that, it really needs to stop saying things about "robust oversight" every time more surveillance abuses by the agency are exposed.

There's more to this than potential domestic surveillance. Any flaw deliberately introduced in hardware and software can be exploited by anyone who discovers it, not just the agency that requested it. The threat isn't theoretical. It's already happened. In 2015, it was discovered that malicious hackers had exploited what appeared to be a built-in flaw to intercept and decrypt VPN traffic running through Juniper routers. This appeared to be a byproduct of the NSA's "Tailored Access Operations." While Juniper has never acknowledged building a backdoor for the NSA, the circumstantial evidence points in No Such Agency's direction.

[Juniper] acknowledged to security researcher Andy Isaacson in 2016 that it had installed Dual EC [Dual Elliptic Curve] as part of a “customer requirement,” according to a previously undisclosed contemporaneous message seen by Reuters. Isaacson and other researchers believe that customer was a U.S. government agency, since only the U.S. is known to have insisted on Dual EC elsewhere.

This is the danger of relying on deliberately introduced flaws to gather intelligence or obtain evidence. Broken is broken and broken tools are toys for malicious individuals, which includes state-sponsored hackers deployed by this nation's enemies. It's kind of shitty to claim you're in the national security business when you're out there asking companies to add more attack vectors to their products.

We've noted for years that broadband usage caps are bullshit. Leaked ISP documents and public executive statements have repeatedly made it clear that usage caps and overage fees are just glorified price hikes on the backs of captive customers, only made possible due to industry monopolization (and the regulatory capture and Congressional corruption that lets them get away with it).

This was a problem for decades, made worse during a crisis in which broadband is essential for survival (health care, work, remote learning). The Trump FCC made some performative, empty gestures toward this problem earlier this year when it announced an entirely voluntary pledge with ISPs, who agreed they'd temporarily stop charging late fees or imposing usage caps. Many ISPs not only ignored their promise, but it was only a few months before most ISPs returned to business as usual, namely ripping off captive customers with spurious fees and surcharges thanks to the accountability vacuum its net neutrality repeal created.

Apparently trying to "help" shed some light on the problem, the Wall Street Journal this week penned a piece discussing usage caps and how they impact ordinary people. Unfortunately, half the story is filled with bullshit industry claims that simply aren't true. Like here, where the Journal amplifies a purported expert who tries to claim that usage caps are necessary to recoup network investment costs:

"Data caps also help keep the prices of internet packages stable by shifting the extra cost to heavy users, according to Mark Trudeau, chief executive of broadband-data firm OpenVault, which tracks more than a million U.S. subscribers. “It protects the majority of subscribers from having rates raised every year,” he said."

This is nonsense. For one, U.S. consumers already pay some of the highest prices in the developed world for broadband due to monopolization, regulatory capture, and obvious Congressional corruption. That's before you even get to arbitrary usage caps, overage fees, or the ocean of misleading below the line surcharges big ISPs use to covertly jack up the advertised price post-sale. Caps don't "protect the majority of subscribers from having rates raised," they're entirely artificial constructs that make high prices, even higher. Worse, they are abused anti-competitively by incumbent ISPs.

Undaunted, the Journal also parrots the false claim that such restrictions are necessary to help "manage network congestion":

"On top of helping internet providers generate more revenue, data limits are a way to alleviate congestion and strain on the network. The internet’s backbone held up pretty well during the early days of the pandemic, despite significant pressure."

The U.S. internet held up pretty well because our core network infrastructure was solid (it's the "last mile" that sucks due to limited competition) and network engineers are smart. But as executives like Sonic CEO Dane Jasper have noted, static caps applied on all users don't actually help manage congestion. Leaked Comcast documents and independent research have repeatedly confirmed this, forcing the industry to back away from the justification entirely a few years back. Extremely heavy users certainly exist, but ISPs already have an option for driving those users to more costly plans: migrating them to business-grade service.

While it's nice the Journal could cover the problems created during Covid thanks to entrenched monopolies U.S. lawmakers refuse to do anything about, peppering the piece with bullshit justifications for price gouging (without once even mentioning a lack of competition or sky high flat-rate prices in the sector) only helps perpetuate bullshit business practices in the first place.

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While much of yesterday's Senate Commerce Committee hearing was focused on the pointless grievances and grandstanding of sitting Senators, there was a bit of actual news made by Mark Zuckerberg and Jack Dorsey. As we discussed earlier this week, Zuckerberg agreed for the first time that he was in support of Section 230 reform, though he declined in his opening remarks to specify the nature of the reforms he supported. And while the original draft of Jack Dorsey's opening testimony suggested full support of 230, in the given remarks he also suggested that Twitter would support changes to Section 230 focused on getting companies to be more transparent. Later in the hearing, during one of the extraordinarily rare moments when a Senator actually asked the CEOs how they would change 230, Zuckerberg also focused on transparency reports, before immediately noting that Facebook already issued transparency reports.

In other words, it appears that the "compromise" the internet companies are looking to throw to a greedy Congress regarding Section 230 reform is "transparency." I've heard from a variety of policymakers over the last few months who also seem focused on this transparency issue as a "narrow" way to reform 230 without mucking up everything else, so it seems like mandating content moderation transparency may become "a thing."

Mandating transparency, however, would be a dangerous move that would stifle both innovation and competition.

Cathy Gellis has covered this in detail in the past, and I addressed it in my comments to the FCC about Section 230. But it seems like we should be a little clearer:

Transparency is important. Mandated transparency is dangerous.

We've been celebrating lots of internet companies and their transparency reports going back to Google's decision nearly a decade ago to start releasing such reports. Over time, every large internet company (and many medium ones) has joined the bandwagon. Indeed, after significant public pressure, even the notoriously secretive giant telcos started issuing transparency reports as well (though they often did so in a secretive manner that actually hid important details).

So, at the very least, it certainly looks like public pressure, good business practices, and pressure from peers in the industry have already pushed the companies into releasing such reports. On top of that, many of the internet companies seem to try to outdo each other in being more transparent than their peers on these reports -- which again is a good thing. The transparency reports are coming and we should celebrate that.

At the very least, though, this suggests that Congress doesn't need to mandate this, as it's already happening.

But, you might say, then why should we worry about mandates for transparency reports? Many, many reasons. First off, while transparency reports are valuable, in some cases, we've seen governments and government officials using them as tools to celebrate censorship. Governments are not using them to better understand the challenges of content moderation, but rather as tools to see where more censorship should be targeted. That's a problem.

Furthermore, creating a "baseline" for transparency reports creates two very large issues that could damage competition and innovation. First, it creates a clear compliance cost, which can be quite burdensome for new and smaller websites. Facebook, Google and Twitter can devote people to creating transparency reports. Smaller sites cannot. And while you could, in theory, craft a mandate that has some size thresholds, historically that leads to gaming and other tricks.

Perhaps more importantly, though, a mandate with baseline transparency thresholds locks in certain "rules" for content moderation and creates real harm to innovative and different ideas. While most people seem to think of content moderation along the lines of how Facebook, YouTube, and Twitter handle it -- with large (often outsourced) content moderation teams and giant sets of policies -- there are many, many other models out there as well. Reddit is a decently large company. Yet it handles content moderation by pushing it out to volunteer moderators who run each subreddit and get to make their own content moderation rules. Would each subreddit have to release its own report? Would Reddit itself have to track how each individual subreddit is moderated and include all of that in its report?

Or how about Wikipedia? That's one of the largest sites on the internet, and all of its content moderation practices are already incredibly transparent, since every single edit shows in each page's history -- often including a note about the reasoning. And, again, rather than being done by staff, every Wikipedia edit is done by volunteers. But should Wikipedia have to file a "standardized" report as well about how and why each of those moderation decisions were made?

And those are just two examples of large sites with different models. The more you look, the more alternative moderation models you can find -- and many of them would not fit neatly into any "standards" for a transparency report. Instead, what you'd get is a hamfisted setup that more or less forces all different sites into a single (Facebook/YouTube/Twitter) style of content moderation and transparency. And that's very bad for innovation in the space.

Indeed, as someone who is quite hopeful for a future where the content moderation layer is entirely separated from the corporate layer of various social media sites, I worry that mandated transparency rules would make that much, much more difficult to implement. Many of the proposals I've seen to build more distributed/decentralized protocol-based solutions for social media would not (and often could not) be fit into a "standardized" model of content moderation.

And thus, creating rules that mandate such transparency reporting for companies based on the manner in which those three large companies currently release transparency reports would only serve to push others into that same model, creating significant compliance costs for those smaller entities, while greatly limiting their ability to experiment with new and different styles of moderation.

On Wednesday morning the Senate Commerce Committee held a nearly four hour long hearing ostensibly about Section 230 with three internet CEOs: Mark Zuckerberg from Facebook, Sundar Pichai from Google, and Jack Dorsey from Twitter. The hearing went about as expected: meaning it was mostly ridiculous nonsense. You had multiple Republican Senators demanding that these CEOs explain why they had taken actions on certain content, with some silly "whataboutism" on other kinds of content where action wasn't taken. Then you had multiple Democratic Senators demanding these CEOs explain why they hadn't taken faster action on pretty much the same content that Republicans had complained some action had been taken on.

The shorter summary was that Republicans were demanding that their own lies and propaganda should be left alone, while Democrats demanded that lies and propaganda should be removed faster. Both of these positions are an anathema to the 1st Amendment, and the people advocating for them on both sides should be embarrassed. While each platform has the right, under the 1st Amendment, to host or not host whatever speech they want, based on whatever policies they set, Congress cannot and should not, be in the position of either telling companies what content they need to host or what content they must take down. And yet, we saw examples of both during the hearing. On the Democratic side, Senators Markey and Baldwin, among a few others, pushed the companies to take down more content. This is extremely troubling on 1st Amendment grounds. On the Republican side, many, many Senators demanded that certain content should be unblocked -- in particular the NY Post's Twitter account.

And there were a few (very limited) good points from both sides of the aisle. Senator Brian Schatz noted that the entire hearing was being done in bad faith by Senate Republicans to try to bully the companies into not removing disinformation in the final week of the election. He noted that, while he had many questions for the three CEOs, he would not participate in this "sham" by asking questions during this particular hearing. Kudos to him. On the Republican side, Senator Jerry Moran noted that changes to Section 230 were the kinds of things that the three companies before the Committee could handle, but which would hamstring smaller competitors (to be fair, Jack Dorsey made this point in his opening testimony as well).

But I wanted to focus on some specific grandstanding by a few key Senators who made particularly ridiculous statements. And, I will point out upfront that these all came from Republicans. I'm not pointing that out because I'm "biased" against them, but because of the simple objective fact that it was these Republican Senators who made the most ridiculous statements of the day. The key theme between them was a ridiculous sense of grievance, and a false belief that the company's moderation practices unfairly targeted "conservatives." Except nearly all of them assumed that because more Republicans were moderated, that was proof of bias -- and not the idea that, perhaps, Republicans do more things that violate the policies of these companies. In the same manner that I'm picking on mostly Republican Senators here, that has more to do with their own actions, than any personal "bias."

What was most frightening, however, in the comments from these Senators is how at home they would have been in the days of Joseph McCarthy. Multiple Senators demanded to know about the personal ideological viewpoints of people who worked for these companies. Both Dorsey and Mark Zuckerberg correctly pointed out that they do not ask their employees about their political leanings (Pichai stated that they hire from all over, implying that there was a diverse ideological pool within their workforce).

It is stunning and dangerous for Senators to be demanding to know the political leanings of employees at any particular company. Senators Mike Lee, Ron Johnson and Marsha Blackburn all asked questions along these lines. Lee, who historically has been aligned with libertarian viewpoints, completely misrepresented the content moderation policies of these companies and insisted that they disproportionately target conservatives. They do not. If conservatives are violating their policies more than others, then that's on those people violating the policies, and not on the policies themselves. Lee also fell into the ridiculous myth that Google's policies directly targeted conservatives in demonetizing The Federalist. As we've discussed multiple times, that's utter bullshit. We received identical treatment to The Federalist. So did Slate and Buzzfeed. Lee, ridiculously, argued that the companies saying -- accurately -- that they do not target moderation decisions based on ideology perhaps violated laws against "unfair or deceptive trade practices." Basically because Lee falsely believes these companies target conservative speech (because he's so deep in his own filter bubble he doesn't even know it hits others as well), that they're engaging in deceptive practices.

Lee demanded that each company list "left leaning" accounts that had received similar treatment, and the various CEOs promised to get back to him, but this was a nonsense argument.

However the most ridiculous part of Lee's grandstanding was his disingenuous framing of content moderation. He started asking about how these companies "censor" content. In the past, we've discussed how moderation and censorship differ, but Lee stretched the definition to insane levels:

I think the trend is clear, you almost always censor -- meaning.... uh... when I use the word censor here I mean block content, fact check or label content, or demonetize websites.

In what fucking world does Senator Lee live in that fact checking is censorship? This is utter nonsense. Indeed, when Sundar Pichai actually pushed back and said "we don't censor," Lee jumped in obnoxiously to say that "I used the word censor as a term of art there and I defined that word." That's not how it works. You can't redefine a term to mean the literal opposite of what it means "as a term of art" and then demand that everyone agrees that they "censored" when your own definition includes fact checking or responding to a statement with more speech.

Senator Ron Johnson's time was particularly egregious. He read the following tweet into the record.

It's a tweet from a "Mary T. Hagan" saying:

Sen Ron Johnson is my neighbor and strangled our dog, Buttons, right in front of my 4 yr old son and 3 yr old daughter. The police refuse to investigate. This is a complete lie but important to retweet and note that there are more of my lies to come.

Yes, he read that whole thing into the record, and then whined directly to Jack Dorsey that this should not have been left up, and that people might not go to the polls and vote for him if they read it. It's hard to know where to begin on this one. Especially since it came right after Johnson was mad about other moderation choices Twitter had made to takedown content. But the most incredible bit was that the obvious point of this tweet (which seemed to fly right over Johnson's head) is to make fun of Johnson's own willingness over the past few months to push Russian-originated propaganda talking points, and then whine that the media won't do anything about it and that law enforcement won't investigate.

So, a simple question for Johnson to answer would be: if he wants this tweet removed, how about removing his own efforts at pushing unverified propagandistic nonsense about Joe Biden?

But, really, this was par for the course for so much of the hearing. Senators (both Democrats and Republicans) showing a vast misunderstanding of how content moderation works, would call up a single example of a content moderation choice and demand an explanation -- often ignoring the explanations from Dorsey and Zuckerberg who would calmly explain what their policy was, why a certain piece of content did or did not violate that policy -- and then scream louder as if they had found some sort of "gotcha" moment.

But honestly, the most insane moment of the hearing most likely involved Senator Marsha Blackburn from Tennessee. Blackburn has a long history of saying the complete opposite argument depending on which way the wind blows at any particular time. For example, during the net neutrality fight she screamed about how it was an example of government interference with innovation and that if we had net neutrality it would destroy "Facebook, YouTube, Twitter" (literally those three companies). Yet a few years later, she supported a bill to regulate the internet in the form of PIPA, a pro-censorship copyright bill.

Then, four years ago, she insisted that internet services had an obligation to delete "fake news." Yet, in the hearing on Wednesday, she flipped out at the companies for trying to moderate any news at all.

And then she took it one step further, and demanded to know if a Google engineer who made fun of her was still employed at the company.

Blackburn (R-Tenn.) asked CEO Sundar Pichai whether Blake Lemoine, a senior software engineer and artificial intelligence researcher, still has a job at Google.

“He has had very unkind things to say about me and I was just wondering if you all had still kept him working there,” Blackburn said during the hearing, where she and other GOP lawmakers accused tech companies of squelching free speech.

Pichai said he did not know Lemoine’s employment status.

Breitbart News reported in 2018 that Lemoine had criticized Blackburn’s legislative record in excerpts of internal company messages and said Google should not “acquiesce to the theatrical demands of a legislator.”

“I’m not big on negotiation with terrorists,” Lemoine said, according to Breitbart.

Having a sitting US Senator specifically call out an employee for criticizing her, and asking to know his employment status is fundamentally terrifying. It is, again, reminiscent of the McCarthy hearings, and having elected officials targeting people for their political viewpoints. If people were serious about calling out "cancel culture," they'd be screaming about how dangerous it is that Blackburn was saying something like this.

The end result of the hearing was a lot more nonsense grandstanding that demonstrated that too many Senators simply do not understand the nature of content moderation, and because they personally disagree with certain policies, or the implementation of certain policies, it means that the companies are somehow doing it wrong. But this is the very nature of content moderation. No single human being will agree with every decision. To immediately leap to the assumption of bad intent (or bad policies) because you disagree with a small sample set of decisions is intellectually lazy and dishonest.

Oh, and Ted Cruz also did some theatrical bullshit, that was mostly performative idiocy, but since he only did it to get a few social media snippets and headlines, we're not going to play that game, and just say simply that Senator Cruz came off like a total disingenuous jackass, who wanted to make the hearing about himself, rather than anything even remotely substantive.

The DHS's hunger for data cannot be satisfied by mandatory facial scanning at airports, cellphone scraping at border checkpoints, or the dozens of government databases crammed full of personal info it has access to. It needs more. So, it's asking for more. More mandatory collection of biometric info from millions of people, including US citizens.

The EFF is asking the government to dump this program. It has sent its comment [PDF] on the DHS's proposal, something it had to squeeze in during the agency's truncated comment period. The EFF notes this is not only unusual, but seems calculated to limit public objection to its sweeping, expansive data-hoovering plan.

EFF strongly objects to the manner in which DHS rolled out this NPRM [Notice of Proposed Rulemaking]. Despite the NPRM’s sweeping changes to dozens of federal regulations that implicate the privacy interests of millions of U.S. citizens and non-citizens, DHS only provided the public 30 days to comment on it. Under ordinary circumstances, 30 days would still be well short of the standard 60-day comment period federal agencies generally provide. See Exec. Order No. 13563, 3 C.F.R. 215 (2011). But in light of the COVID-19 pandemic that has forced EFF and many others to work remotely under challenging conditions and has restricted the public’s ability to engage with the government, the allotted comment period is inadequate. Moreover, given that DHS has been contemplating an expansion of its biometrics collection practices for over a decade, and that this NPRM constitutes 85 pages in the Federal Register, the public deserved more than 30 days to respond.

It certainly appears as though the DHS hoped to sneak this one past the public while it was otherwise occupied with a global pandemic and a national election. As the EFF explains, this isn't some incremental change to existing DHS collection programs. It's a massive expansion -- one that should be subjected to far more scrutiny by the public and their elected representatives.

DHS’s biometrics database is already the second largest in the world. It contains biometrics from more than 260 million people. If DHS’s proposed rule takes effect, DHS estimates that it would nearly double the number of people added to that database each year, to over 6 million people. And, equally important, the rule would expand both the types of biometrics DHS collects and how DHS uses them.

It's not just doubling the number of people it collects from. It would also vastly increase the amount of biometric data collected from the expanded list of targets.

Specifically, the proposal would add palm prints, photographs “including facial images specifically for facial recognition, as well as photographs of physical or anatomical features such as scars, skin marks, and tattoos,” voice prints, iris images, and DNA to the types of biometrics that DHS may require. Additionally, while not mentioned explicitly, the use of the term “behavioral characteristics” in the proposed definition clearly contemplates the future inclusion of so-called behavioral biometrics which can identify a person through the analysis of their movements.

Becoming a naturalized system wouldn't end the process. The information collected during the application process would be leveraged to provide a lifetime of government surveillance.

The NPRM makes clear that a core goal of DHS’s expansion of biometrics collection would be to implement “enhanced and continuous vetting,” which would require immigrants “be subjected to continued and subsequent evaluation to ensure they continue to present no risk of causing harm subsequent to their entry.” While the NPRM offers few details about what such a program would entail, it appears that DHS would collect biometric data as part of routine immigration applications in order to share that data with law enforcement and monitor individuals indefinitely.

This proposal needs to be dumped. This doesn't make us the leaders of the free world. The current administration may harbor a deep distrust for foreigners, especially the ones that come in other shades than white, but this combination of intrusive collection and endless monitoring aligns us more with countries like China than the great nation we hopefully still genuinely aspire to be.