Democrat Delusions About Early Voting

For those who rely on the legacy media for election news, it would be easy to conclude that early voters have already doomed President Trump’s chances of reelection. CNN analyst Harry Enten, for example, advises us that the current high volume of mail-in ballots confirms national polls showing Democratic presidential nominee Joe Biden with a comfortable lead over Trump. Likewise, Slate tells its readers, “The Early Voting Revolution Is Already Helping Joe Biden.” But we have seen such headlines before. Just prior to Election Day 2016, Politico ran a story titled, “Record-breaking early voting fuels Democratic optimism.” That optimism turned out to be hopelessly delusional, as will this year’s premature exhilaration.

The reason early Democratic voters rarely live up to such great expectations is that they usually aren’t newly registered voters. They tend to be long-time Democrats whose votes are being cannibalized from ballots they would have cast on Election Day. Yet their early votes are frequently touted by the media as evidence of great enthusiasm and high potential turnout. Almost always, however, Republicans show up at the polls in much larger numbers on Election Day and defeat overconfident candidates like Hillary Clinton. There is some evidence in crucial 2020 battleground states that this is the fate that awaits Joe Biden. In Florida, for example, the Democrats placed enormous emphasis on early voting.

According to the U.S. Elections Project, however, the Democrats are struggling to maintain their early voting lead in the Sunshine State. The GOP in-person total stood at 1,470,989, far ahead of the Democratic in-person total of 1,044,148, despite the closure of polling places in the state’s heavily Republican panhandle pursuant to Hurricane Zeta. Total Republican early votes stood at 2,787,723 as of October 29, just over 200,000 behind the Democratic total of 2,992,000. The Democrats cling to that thin lead by virtue of mail-in ballots. A lead that small will never survive a robust Election Day turnout by the Republicans. Democratic stronghold Miami-Dade County may be the canary in the coal mine:

While statewide turnout has been impressive, turnout in Miami-Dade County — among Democrats in particular — has been lagging somewhat.… In Miami-Dade, where mail ballots went out on the last possible day, the turnout was less than 46% of registered voters Tuesday, state data shows. That includes 52% of Republicans, 47% of Democrats and 37% of independents.… Democratic presidential candidate Joe Biden will need a substantial margin of victory in Miami-Dade to ultimately win Florida and potentially sink President Trump’s chances at reelection.

Florida is hardly the only state in which the early vote should worry Biden and the Democrats. In North Carolina, as in Florida, the Democrats pushed early voting. Yet, according to the U.S. Elections Project, their lead in overall early voting has been reduced from 12 percent last week to a little over 7 percent as of this writing. The Republican in-person total stood at 1,038,755, and the Democratic in-person vote came to 1,096,969. Total GOP early votes totaled 1,208,633 as of October 29, only 285,199 behind the Democratic total of 1,493,832. Ominously for the Biden campaign, this is less than the amount by which Clinton led Trump in the Tar Heel State just before Election Day 2016. Trump won the state by 3.8 percent.

Moving beyond Florida and North Carolina, both of which Trump won in 2016 and is likely to win again, the Democrats have an early voting problem in Nevada. President Trump lost the Silver State by 2 percent in 2016. Yet early voting suggests that he could flip it this time. Referring again to the U.S. Elections Project, total Republican early votes stood at 333,569 as of October 29, or 39,789 behind the Democratic total of 373,358. There are 566,000 registered Republicans in Nevada, so it’s obvious that a large GOP turnout on Election Day could easily overcome that gap. But this brings us to a different problem. Nevada’s governor is a Democrat, and it isn’t clear that the will of the voters is his primary concern.

Like many Democratic governors, Steve Sisolak continues to claim — without a whiff of credible scientific evidence — that the nation is in the midst of a deadly “second wave” of COVID-19 infections. Consequently, he and his state election officials are using the pandemic as a pretext to reduce the number of in-person polling places. This has long since begun in Clark County, where the number of polling places has been reduced from 159 to 125. The county’s top election official, Joe Gloria, isn’t required to consult with the County Commission before implementing this kind of change, regardless of how many voters are disfranchised. Oddly, Stacey Abrams failed to accuse these Democratic officials of voter suppression.

Most battleground states, particularly those with Democratic governors, decline to provide enough information to comprehensively analyze early voting. Most provide only mail-in data. It’s probable, however, that the early voting dynamics in most of the swing states are much the same as we have seen in Florida, North Carolina, and Nevada. According to an October Gallup poll, 62 percent of Democratic and 28 percent of Republican voters planned to vote early this year. If those percentages are remotely accurate, the Democrats are delusional about the effect of early voting. Election Day will produce a tsunami of Republican votes that will reelect President Trump by state majorities that easily exceed the “margin of litigation.”

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Author: David Catron

Congress Fails to Ask Tech CEOs the Hard Questions

The Big Internet Companies Are Too Powerful, But Undermining Section 230 Won’t Help

The Senate Commerce Committee met this week to question the heads of Facebook, Twitter, and Google about Section 230, the most important law protecting free speech online. Section 230 reflects the common-sense principle that legal liability for unlawful online speech should rest with the speaker, not the Internet services that make online speech possible. Section 230 further protects Internet companies’ ability to make speech moderation decisions by making it clear that platforms can make those decisions without inviting liability for the mistakes they will inevitably make.

Even President Trump has called multiple times for a repeal of Section 230, though repealing the law would certainly mean far fewer places for conservatives to share their ideas online, not more.

Section 230’s importance to free speech online can’t be overstated. Without Section 230, social media wouldn’t exist, at least in its current form. Neither would most forums, comment sections, or other places where people are allowed to interact and share their ideas with each other. The legal risk involved with operating such a space would simply be too high. Simply put, the Internet would be a less interactive, more restrictive place without Section 230.

If some critics of Section 230 get their way, the Internet will soon become a more restrictive place. Section 230 has become a lightning rod this year: it’s convenient for politicians and commentators on both sides of the aisle to blame the law—which protects a huge range of Internet services—for the decisions of a few very large companies (usually Google, Twitter, and Facebook). Republicans make questionable claims about bias against conservatives, arguing that platforms should be required to moderate less speech in order to maintain liability protections. Even President Trump has called multiple times for a repeal of Section 230, though repealing the law would certainly mean far fewer places for conservatives to share their ideas online, not more. Democrats often argue the opposite, saying that the law should be changed to require platforms to do more to patrol hate speech and disinformation.

The questions and comments in this week’s hearing followed that familiar pattern, with Republicans scolding Big Tech for “censoring” and fact-checking conservative speech—the president’s in particular—and Democrats demanding that tech companies do more to curb misleading and harmful statements on their platforms—the president’s in particular. Lost in the charade is a stark reality: undermining 230 wouldn’t necessarily improve platforms’ behavior but would bring severe consequences for speech online as a whole.

Three Internet Giants Don’t Speak for the Internet

One of the problems with the current debate over Section 230 is that it’s treated as a discussion about big tech companies. But Section 230 affects all of us. When volunteer moderators take action in small web discussion forums—they’re protected by Section 230. When a hobbyist blogger removes spam or other inappropriate material from a comment section—again, protected by Section 230. And when an Internet user retweets a tweet or even forwards an email, Section 230 protects that user too.

Internet censorship invariably harms the least powerful members of society first.

There were a lot of disappointing mistakes made in this hearing, but the first and worst mistake was deciding who to call to speak in the first place. Hauling the CEOs of Facebook, Google, and Twitter in front of Congress to be the sole witnesses defending a law that affects the entire Internet may be good political theatre, but it’s a terrible way to make technology policy. By definition, the three largest tech companies alone can’t provide a clear picture of what rewriting Section 230 would mean to the entire Internet.

All three of these CEOs run companies that will be able to manage nearly any level of government regulation or intervention. That’s not true of the thousands of small startups that don’t have the resources of world-spanning companies. It’s no surprise that Facebook, for instance, is now signaling an openness to more government regulation of the Internet—far from being a death blow for the company, it may well help the social media giant isolate itself from competition.

Dorsey, Zuckerberg, and Pichai don’t just fail to represent the breadth of Internet companies that would be affected by a change to Section 230; as three men in positions of enormous power, they also fail to represent the Internet users that Congress would harm. Internet censorship invariably harms the least powerful members of society first—the rural LGBTQ teenager who depends on the acceptance of Internet communities, the activist using social media to document government abuses of human rights. When online platforms clamp down on their users’ speech, it’s the marginalized voices that disappear first.

Facebook’s Call for Regulation Doesn’t Address the Big Problems

In his opening testimony, Facebook CEO Mark Zuckerberg made it clear why we can’t trust him to be a witness on Section 230, endorsing changes to Section 230 that would give Facebook an advantage over would-be competitors. Zuckerberg acknowledged the foundational role that Section 230 has played in the development of the Internet, but he also suggested that “Congress should update the law to make sure that it’s working as intended.” He went on to propose that Congress should pass laws requiring platforms to be more transparent in their moderation decisions. He also advocated legislation to “separate good actors from bad actors.” From Zuckerberg’s written testimony (PDF):

At Facebook, we don’t think tech companies should be making so many decisions about these important issues alone. I believe we need a more active role for governments and regulators, which is why in March last year I called for regulation on harmful content, privacy, elections, and data portability.

EFF recognizes some of what Zuckerberg identifies as the problems with today’s social media platforms—indeed, we have criticized Facebook for providing inadequate transparency into its own moderation processes—but that doesn’t mean Facebook should speak for the Internet. Any reform that puts more burden on platforms in order to maintain the Section 230 liability shield will mean a higher barrier for new startups to overcome before they can compete with Facebook or Google, be it in the form of moderation staff, investment in algorithmic filters, or the high-powered lawyers necessary to fight off new lawsuits. If it becomes harder for platforms to receive and maintain Section 230 protections, then Google, Facebook, and Twitter will become even more dominant over the Internet. This conglomeration happened very dramatically after Congress passed SESTA/FOSTA. The law, which Facebook supported, made it much harder for online dating services to operate without massive legal risk, and multiple small dating sites recognized that reality and immediately shut down. Just a few weeks later, Facebook announced that it was entering the online dating market.

Unsurprisingly, while the witnesses paid lip service to the importance of competition among online services, none of them proposed solutions to their outsized control over online speech. None of them proposed comprehensive data privacy legislation that would let users sue the big tech companies when they violate our privacy rights. None of them proposed modernizing antitrust law to stop the familiar pattern of big tech companies simply buying their would-be competitors. Many members of Congress—Republican and Democrat—recognized that the failings they blamed on large tech companies were magnified by the lack of meaningful competition among online speech platforms, but unfortunately, very little of the hearing focused on real solutions to that lack of competition.

Give Users Real Control Over Their Online Experience

Republican Senators’ insistence on framing the hearing around “censorship of conservatives” precluded a more serious discussion of the problems with online platforms’ aggressive speech enforcement practices. As we’ve said before, online censorship magnifies existing imbalances in society: it’s not the liberal silencing the conservative; it’s the powerful silencing the powerless. Any serious discussion of the problems with platforms’ moderation practices must consider the ways in which powerful players—including state actors—take advantage of those moderation practices in order to censor their enemies.

EFF told Congress in 2018 that although it’s not lawmakers’ place to tell Internet companies what speech to keep up or take down, there are serious problems with how social media platforms enforce their policies and what voices disappear from the Internet. We said that Internet companies had a lot more work to do to ensure that their moderation decisions were fair and transparent and that when mistakes inevitably happened, users would be able to appeal moderation decisions to a real person, not an algorithm.

Social media companies make thousands of decisions on our behalf. Why not expose those decisions to users and let us have some say in them?

We also suggested that platforms ought to put more control over what speech we’re allowed to see into the hands of us, the users. Today, social media companies make thousands of decisions on our behalf—about whether we’ll see sexual speech and imagery, whether we’ll see certain types of misinformation, what types of extremist speech we’ll be exposed to. Why not expose those decisions to users and let us have some say in them? As we wrote in our letter to the House Judiciary Committee, “Facebook  already  allows  users  to  choose  what  kinds  of  ads  they want to see—a similar system should be put in place for content, along with tools that let  users  make  those  decisions  on  the  fly  rather  than  having  to  find  a  hidden  interface.”

We were gratified, then, that Twitter’s Jack Dorsey identified “empowering algorithmic choice” as a high priority for the company. From Dorsey’s written testimony (PDF):

In December 2018, Twitter introduced an icon located at the top of everyone’s timeline that allows individuals using Twitter to easily switch to a reverse chronological order ranking of the Tweets from accounts or topics they follow. This improvement gives people more control over the content they see, and it also provides greater transparency into how our algorithms affect what they see. It is a good start. We believe this points to an exciting, market-driven approach where people can choose what algorithms filter their content so they can have the experience they want. […] Enabling people to choose algorithms created by third parties to rank and filter their content is an incredibly energizing idea that is in reach.

We hope to see more of that logical approach to empowering users from a major Internet company, but we also need to hold Twitter and its peers accountable to it. As Dorsey noted in its testimony, true algorithmic choice would mean not only letting people customize how Twitter filters their news feed, but letting third parties create alternative filters too. Unfortunately, the large Internet companies have a poor track record when it comes to letting their services play well with others, employing a mix of copyright abuse, end-user license agreements, and computer crime laws to prevent third parties from creating tools that interact with their own. While we applaud Twitter’s interest in giving users more control over their timeline, we must ensure that its solutions actually promote a competitive landscape and don’t further lock users into Twitter’s own walled garden.

While Internet companies’ moderation practices are a problem, the Senate Commerce Committee hearing ultimately failed to address the real problems with speech moderation at scale. While members of Congress acknowledge that a few flawed companies have too much control over online speech, they’ve consistently failed to enact structural solutions to the lack of meaningful competition in social media. Before they consider making further changes to Section 230, lawmakers must understand that the decisions they make could spell disaster—not just for Facebook and Twitter’s would-be competitors but, most importantly, for the voices they risk kicking offline.

No matter what happens in next week’s election, we are certain to see more misguided attempts to undermine Section 230 in the next Congress. We hope that Congress will take the time to listen to experts and users that don’t run behemoth Internet companies. In the meantime, please take a moment to write to your members of Congress and tell them why a strong Section 230 is important to you.

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Tell Congress to Reject the Earn It Act

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Author: Elliot Harmon

IPANDETEC’s Report on Panama’s ISPs Show Improvements But More Work Needed to Protect Users’ Privacy

IPANDETEC, the leading digital rights organization in Panama, today released its second annual Who Defends Your Data” (¿Quién Defiende Tus Datos?) report assessing how well the country’s mobile phone and Internet service providers (ISPs) are protecting users’ communications data. While most companies received low scores, the report shows some ISPs making progress in a few important areas: ensuring payment processing services and websites are secure, requiring law enforcement to obtain warrants before accessing user data, and publicly promoting data privacy as a human right. Regarding the latter, all ISPs surveyed are working on an agreement to provide Internet connection to students and persons affected by the COVID-19, a welcome development as many are struggling without Internet access during the pandemic.

IPANDETEC looked at the privacy practices of Panama’s main mobile companies: Claro (America Movil), Digicel, Más Móvil (a joint operation between Cable & Wireless Communications and the Panamanian government, which owns 49% of the company), and Tigo, the new name for Movistar, the brand owned by Spain’s Telefonica whose assets were sold to Millicom International last year.

¿Quién Defiende Tus Datos? is modeled after EFF’s Who Has Your Back report, which was created to shine a light on U.S. ISPs’ policies for protecting users’ private information so consumers could make informed choices about what companies they should entrust their data to. Internet access and digital communications are part of everyday life for most people, and the companies that provide these services collect and store vast amounts of private information from their customers. People have a right to know if and how their data is being protected—that’s why IPANDETEC and other digital rights organizations across Latin America and Spain are evaluating and reporting on what ISPs publicly disclose about their data protection practices.

ISPs in Panama were evaluated on seven criteria concerning data protection, transparency, user notification, judicial authorization, defense of human rights, digital security, and law enforcement guidelines. Complete descriptions of what the categories include are provided later in this post.

Tigo, previously called Movistar, scored the highest, achieving full or partial stars in five of the seven categories assessed. It was the only company in the survey to receive a full star for stating that it requires law enforcement agencies seeking user data to first obtain a warrant. Tigo was also the only company to receive some credit for providing partial information about procedures for law enforcement requests for customer data—this is largely owing to the fact that its current parent company Millicom publishes a policy for assisting law enforcement. But the document refers to a global policy; Tigo’s local policy in Panama isn’t clear, so it received a quarter of a star.

Tigo was also the only company to receive partial credit in the data protection policy category. The other companies provide some information about data collection from visits to their websites and use of their apps, but not about data collected from their regular Internet or mobile phone services. Más Móvil says its contracts with customers provide information about privacy and data protection. But these contracts aren’t made public. How companies collect, use, share, and manage customers’ personal data should be publicly disclosed so it’s available to people before they choose a telecom operator. Tigo, through Millicom, discloses only some information about data collection policies for online services and received a quarter of a star.

Claro had the second-highest score, with one full star in the digital security category and half stars in the defense of human rights and judicial order categories. In the latter category, the company’s global policy is to only comply with law enforcement requests for users’ content and metadata when there’s an order from “the competent authority.” The global policy isn’t available on Claro’s local Panama business website, and Claro’s policy for Panama is less precise about a warrant requirement, hence the awarding of a half star.

Claro received a full star in the digital security category, an improvement over last year, by committing to using HTTPS on its website and for processing online payments. A big problem revealed by the report is a general lack of transparency about privacy and security practices by ISPs in Panama. None of the ISPs surveyed received credit for publishing a transparency report. Tigo’s previous and current parent companies, Telefonica and Millicom, respectively, didn’t include information about their mobile Panamanian businesses in their transparency reports because the Movistar sale transaction was in progress. As such, Tigo received no stars in the transparency report category. We hope to see that change in the next report, not just for Tigo but for the other companies as well.

The lack of transparency reports isn’t the only disclosure flaw among Panama’s leading ISP’s. None commit to notifying users when the government gets access to their data, according to  IPANDETEC’s study. 

The specific criteria for each category and the final results of the study are below. For more information on each company and Panama’s ICT sector, you can find the full report on IPANDETEC’s website. [add link of the report – partners still have to send it]

Data Protection: Does the company post a document detailing its collection, use, disclosure, and management of personal customer data?    

    • The data protection policy is published on its website
    • The policy is written in clear and easily accessible language
    • The policy details what data is collected
    • The policy establishes the retention period for user data

Transparency: Does the company post an annual transparency report listing the number of government requests for customer data they’ve received, and how many were accepted and rejected?    

    • The company publishes a transparency report on its website
    • The report is written in clear and easily accessible language
    • The reports contain data related to the number and type of requests received, and how many were accepted

User Notification: Does the company promise to notify users when the government requests their data?    

    • The company states it will notify users when the government accesses their information as soon as the law allows

Judicial Authorization: Does the company explicitly state it will only comply with authorities’ request for user data if they have a warrant?

    • The company states in its policies that it requires a warrant before law enforcement can access the content of users’ communications
    • The company rejects requests by law enforcement that violate legal requirements

Defense of Human Rights: Does the company publicly promote and defend the human rights of their users, specifically the privacy of their communications and protection of their personal data?

    • The company promotes user privacy and data protection  through campaigns or initiatives
    • The company supports legislation, impact litigation, or programs favoring user privacy and data protection
    • The company participates in cross-sector agreements promoting Human Rights as a core tenant of their business

Digital Security: Are the company’s website and online payment service secure?

    • The company uses HTTPS on its website 
    • The company uses HTTPS when processing payments online

Law Enforcement Guidelines: Does the company outline public guidelines and legal requirements required for law enforcement requesting customer data?

    • The company publishes guidelines for law enforcement data requests.

Conclusion

The report shows that all four ISPs surveyed support the idea that user privacy and data protection are human rights. The best way for companies to prove their commitment to this principle is by doing a better job at protecting their customers’ private information and being more transparent about how they collect, use, and share their data. We hope to see improvements across all categories in the next report. 

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Author: Karen Gullo

Macron: No More Mr. Nice Guy

At 9 a.m. yesterday morning, a 21-year-old called Brahim Aouissaoui entered Notre Dame Basilica Church in Nice carrying a bag of knives. Just a few minutes later, three people had been stabbed to death. A 70-year-old woman — unnamed at time of writing — had been decapitated.

The mayor of Nice subsequently said that “everything points to a terrorist attack.” Aouissaoui was shot by responding French police and is currently under arrest.

It had been less than a fortnight since the last beheading in France. That time, a schoolteacher, Samuel Paty, showed the caricatures of Mohammed published in Charlie Hebdo magazine to students in a civics class discussion on free speech. The parent of one of the schoolchildren who attended the class issued a fatwa against Paty, and Abdullakh Anzorov — an 18-year-old Russian of Chechen descent — took action. Anzorov tweeted an image of the aftermath of his attack.

So Islamist beheadings are now quite familiar to France. But then so much else also is. So are attacks in Nice. For example, in July 2016, 86 were killed and 434 injured when Mohamed Lahouaiej Bouhlel ploughed a truck into those celebrating Bastille Day on Promenade des Anglais.

So too are attacks on churches. In April 2015, Algerian-born Sid Ahmed Ghlam is alleged to have planned what French authorities described as an “imminent” attack on churchgoers and is suspected of having murdered a gym instructor whose body was discovered on April 19, 2015. Before he could carry out his plot, Ghlam accidentally shot himself in the leg and had to call an ambulance. French authorities believe the plot to be connected to extremists in Syria. Ghlam is currently on trial in France.

Over a year later, in July 2016, Abdelmalik Petitjean and Adel Kermiche murdered Jacques Hamel, a Catholic priest, in a church in Normandy. Both had previously tried to travel to Syria and were in contact with Rashid Kassim, a French terrorist who was directing terror plots from his base in the Caliphate.

So are attacks by those who made hazardous journeys from afar in order to live in Europe. A Pakistani called Zaheer Hassan Mehmood was previously so keen to live in France that he lied about his age to ensure he be categorized as an unaccompanied foreign minor (meaning that while he could not claim asylum in France, he also could not be expelled). Last month, Mehmood took a meat cleaver to two people outside Charlie Hebdo’s old office in Paris (unaware that the magazine had now changed location for security reasons). Like so many asylum seekers who have carried out attacks in Europe in recent years, Mehmood wanted to live in France; he just did not want to have to live with French values.

Still, those French values endure, and the French government seems understandably keen on protecting them. In response to Paty’s brutal murder, Emmanuel Macron said that the time for statements was over: “Our fellow citizens expect actions.” Those expectations would be within their right: France has faced an unrelenting stream of terrorist attacks in recent years.

Still, European politicians often talk tough in the aftermath of a terror attack and then do little to back it up. It was somewhat jolting, then, that France seemed to be an exception. The government prepared to deport hundreds of foreign nationals it assessed to possess extremist beliefs. It ordered the temporary closure of a mosque on the outskirts of Paris after the mosque had shared a video on its Facebook page whipping up anger against Paty prior to his murder.

It raided Islamist groups throughout France. The government subsequently dissolved Sheikh Yassine, a group named after the founder of Hamas, which French authorities believed was “directly involved” in Paty’s murder (the group’s founder, Abdelhakim Sefrioui, had accompanied the father of a student of Paty’s to complain about his teaching).

They dissolved Baraka City, an NGO, for their alleged links to Islamist groups, inciting hatred and acting as apologists for terrorism. Also being targeted is the Collective for the Fight Against Islamophobia in France, described by French interior minister Gérald Darmanin as “an Islamist outfit” that accused the French state of “Islamophobia all the while being subsidized (financially) by the French state.” Darmanin warned that was “time we stopped being naive with these outfits.”

These are far-reaching efforts to combat Islamist groups. Some believe they have gone too far. Yet given what France has endured, you would hope that no one in international community would be indecent enough to try to portray France as anything other than the wronged party.

Enter Pakistani Prime Minister Imran Khan. He tweeted that Macron was “creating further polarization and marginalization that inevitably leads to radicalization.” He castigated the French leader for having “chosen to deliberately provoke Muslims, including his own citizens, and encouraged the display of blasphemous cartoons targeting Islam and the Holy Prophet.”

Recep Tayyip Erdoğan in Turkey also spoke up. “What is Macron’s problem with Islam? What is his problem with Muslims?” he asked, declaring that “Macron needs some sort of mental treatment.” France recalled its ambassador to Turkey as a result.

Erdoğan then stepped up his efforts, proclaiming from Ankara that Turks should “[n]ever give credit to French-labelled goods, don’t buy them.” He went on to compare the condition for Muslims in Europe to that of Jews prior to World War II and said that Macron was responsible for a “hate campaign.”

Erdoğan’s message struck a chord way beyond Turkey. Kuwait and Qatar stopped selling certain French goods. Effigies of Macron were burned in large protests in Dhaka, Bangladesh. #BoycottFrance became a popular hashtag on Twitter with an accompanying image of which French companies and brands should be boycotted. Messages being forwarded on WhatsApp groups supported the initiative and encouraged even greater participation, imploring Muslims to “stand up for our Prophet, stand up for Islam.”

Then there was the former Malaysian Prime Minister Mahathir Mohamad. He denounced Macron as “primitive in blaming the religion of Islam and Muslims” for Paty’s murder and declared that “Muslims have a right to be angry and to kill millions of French people for the massacres of the past.”

It has been an extraordinary sleight of hand by these grievance-mongers to turn the beheading of a French teacher into a campaign to boycott the French state for causing offense to Islam.

Yet it has been at least partially successful, and so it is worth reiterating who exactly the victim is here and who is not.

Samuel Paty is the victim. Those who have been murdered and those who have had their lives ruined by Islamist violence are victims. Erdoğan is not a victim. Neither is Khan, Mohamad, or anyone taking to the streets or whinging online over some drawings they do not like.

If there is one ray of light to emerge from the dark period that France is enduring, it is this: we now have total clarity on what the priorities are for men like Erdoğan and Khan. We should quietly note who aimed their fury at Macron and who aimed their fury at Anzorov and Aouissaoui. And we should never forget it.

Robin Simcox is Director of the Counter Extremism Group.

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Author: Robin Simcox

Tell Us How You Want to Modify and Repair the Devices in Your Life

Have you tried modifying, repairing, or diagnosing a product but bumped into encryption, a password requirement, or some other technological roadblock that got in the way? EFF wants your stories to help us fight for your right to get around those obstacles.

Section 1201 of the Digital Millennium Copyright Act (DMCA) makes it illegal to circumvent certain digital access controls (also called “technological protection measures” or “TPMs”). Because software code can be copyrightable, this gives product manufacturers a legal tool to control the way you interact with the increasingly powerful devices in your life. While Section 1201’s stated goal was to prevent copyright infringement, the law has been used against artists, researchers, technicians, and other product owners, even when their reasons for circumventing manufacturers’ digital locks were completely lawful.

Every three years, there is a window of opportunity to get exemptions to this law to protect legitimate uses of copyrighted works. Last time around, we were able to preserve your right to repair, maintain, and diagnose your smartphones, home appliances, and home systems. For 2021, we’re asking the Copyright Office to expand that exemption to cover all software-enabled devices and to cover the right to modify or customize those products, not just repair them. As more and more products have computerized components, TPM-encumbered software runs on more of the devices we use daily—from toys to microwaves—putting you at risk of violating the statute if you access the code of something you own to lawfully customize it.

How You Can Help

To help make our case for this new exemption, we want to hear from you about your experiences with anything that might have a software component with a TPM that prevents you from making full use of the products you already own. From the Internet of Things and medical devices, to Smart TVs and game consoles, to appliances and computer peripherals, to any other items you can think of—that’s what we want to hear about! As an owner, you should have the right to repair, modify, and diagnose the products you rely on by being able to access all of the software code contained in the products. These may include products you may not necessarily associate with software, such as insulin pumps and smart products, like toys and refrigerators.

If you have a story about how:

  • someone in the United States;
  • attempted or planned to repair, modify, or diagnose a product with a software component; and
  • encountered a technological protection measure (including DRM or digital rights management—any form of software security measure that restricts access to the underlying software code, such as encryption, password protection, or authentication requirements) that prevented completing the modification, repair, or diagnosis (or had to be circumvented to do so)

—we want to hear from you! Please email us at RightToMod-2021@eff.org with the information listed below, and we’ll curate the stories we receive so we can present the most relevant ones alongside our arguments to the Copyright Office. The comments we submit to the Copyright Office will become a matter of public record, but we will not include your name if you do not wish to be identified by us. Submissions should include the following information:

  1. The product you (or someone else) wanted to modify, repair, or diagnose, including brand and model name/number if available.
  2. What you wanted to do and why.
  3. How a TPM interfered with your project, including a description of the TPM.
    • What did the TPM restrict access to?
    • What did the TPM block you from doing? How?
    • If you know, what would be required to get around the TPM? Is there another way you could accomplish your goal without doing this?
  4. Optional: Links to relevant articles, blog posts, etc.
  5. Whether we may identify you in our public comments, and your name and town of residence if so. We will treat all submissions as anonymous unless you expressly give us this permission to identify you.

This is a team effort. In seeking repair and tinkering exemptions over the years, we’ve used some great stories from you about your repair problems and projects involving your cars and other devices. In past cycles, your stories helped the Copyright Office understand the human impact of this law. Help us fight for your rights once more!

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Author: Cara Gagliano

It’s Time to Kick Patent Trolls Out of the International Trade Commission

The International Trade Commission, or ITC, is a federal agency in Washington D.C. that investigates unfair trade practices. Unfortunately, in recent years, it has also become a magnet for some of the worst abusers of the U.S. patent system. Now, there’s a bill in Congress, the Protecting America’s Interest Act (H.R. 8037), that could finally get patent trolls out of the ITC—a place they never should have been allowed in the first place.

Patent owners can ask the Commission to investigate an allegation of infringement, in addition to their right to bring a patent infringement case into federal court. The ITC can’t award damages like a district court can, but the ITC can grant an “exclusion order,” which bans importation of the excluded item, and orders customs agents to seize products at the border.

Not everyone is entitled to ask the ITC for an exclusion order; the complainant must be part of a “domestic industry.” But over the years, administrative law judges at the ITC have lowered the bar for what that requires. Engaging in patent licensing and litigation—without more—is enough to establish a “domestic industry” in this country, in the eyes of ITC judges. That means patent trolls, which produce no goods or services, can qualify. Even patent assertion entities based in other countries are using the ITC. For example, last year, the ITC took up a case in which an Ireland-based patent troll sought to stop 80% of U.S. imports on Android tablets, 86% of Windows tablets, and more than 50% of Android smartphones

The ITC was never intended to be a forum for domestic companies based on allegations of patent infringement. But that’s exactly what it has become.  Since 2006, the ITC’s own data show that between 6 and 33 percent of the venue’s patent cases are brought by entities that don’t practice the patent, which are, more often than not, patent trolls. The fast pace of ITC litigation, which has an 18-month time limit, makes it more expensive and less fair to defendants than district court litigation. When U.S. companies are forced to pay huge legal fees, and big settlements, to avoid threatening their product lines, prices go up and consumers are the losers. 

Our patent system is broken, and in need of reform. Getting patent trolls out of the ITC is one important step toward that goal—and one we can achieve. The Advancing America’s Interests Act, H.R. 8037, would require complainants at the ITC to show that they are part of a real domestic industry—one that employs labor or capital, or invests in plants, equipment, or research and development. “Licensing” would meet the requirement for a domestic industry only if it leads to “adoption and development of articles” that embody the patented work. 

H.R. 8037, sponsored by Representatives Suzan DelBene (D-WA) and David Schweikert (R-AZ), would also compel the commission to put the public interest front and center when it considers issuing an “exclusion order.” Currently, the law only requires that the ITC consider the public interest as one of four separate factors. If H.R. 8037 were to pass, the ITC would have to affirmatively decide that each exclusion order is in the public interest. 

While Congress may not have time to take this bill up before the election, we hope ITC reform is on the table in 2021. We supported a nearly-identical bill in 2016. Since then, patent abusers continue to be regulars at the ITC. It’s time to bid them farewell. 

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Author: Joe Mullin

Make a Pledge for EFF Through CFC Today!

The pledge period for the Combined Federal Campaign (CFC) is underway and EFF needs your help! Last year, U.S. government employees raised over $19,000 for EFF through the CFC, helping us fight for privacy, free speech, and security on the Internet so that we can help create a better digital future.

The Combined Federal Campaign is the world’s largest and most successful annual charity campaign for U.S. federal employees and retirees. Since its inception in 1961, the CFC fundraiser has raised more than $8.4 billion for local, national, and international charities. This year’s campaign runs from September 21 to January 15, 2021. Be sure to make your pledge before the campaign ends!

U.S. government employees can give to EFF by going to GiveCFC.org and clicking DONATE to give via payroll deduction, credit/debit, or an e-check! Be sure to use our CFC ID #10437. You can also scan the QR code below! 

CFC QR code

Even though EFF is celebrating its 30th anniversary, we’re still fighting hard to protect online privacy, free expression, and innovation. We’ve made significant steps towards Internet freedom, including leading the call to reject the EARN-IT bill, which threatens to break encryption and undermine free speech online; keeping track of how COVID-19 is affecting digital rights around the world; and we even mobilized over 800 nonprofits and 64,000 individuals to stop the sale of the entire .ORG registry to a private equity firm.

Government employees have a tremendous impact on the shape of our democracy and the future of civil liberties and human rights online. Become an EFF member today by using our CFC ID #10437 when you make a pledge!

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Author: Christian Romero

Antitrust Suit Against Google is a Watershed Moment

The antitrust lawsuit against Google filed by the Department of Justice (DOJ) and eleven state attorneys general has the potential to be the most important competition case against a technology company since the DOJ’s 1998 suit against Microsoft. The complaint is broad, covering Google’s power over search generally, along with search advertising. Instead of asking for money damages, the complaint asks for Google to be restructured and its illegal behavior restricted.

This suit flows from investigations by the DOJ Antitrust Division that have been going on since last year. Although a large, bipartisan group of state attorneys general were reportedly working together on the investigation, just eleven states, all with Republican attorneys general, joined the suit. A group of Democratic-led states are reportedly preparing a separate lawsuit.

Focus on Search

The DOJ and states raised three claims in their suit, all under Section 2 of the Sherman Antitrust Act, which prohibits acquiring or maintaining monopoly power through improper means. The lawsuit alleges that Google illegally maintains monopoly power in three markets: “general search services, search advertising, and general search text advertising.” In these markets, says the complaint, “Google aggressively uses its monopoly positions, and the money that flows from them, to continuously foreclose rivals and protect its monopolies.”

Closely following the playbook of the US v. Microsoft antitrust suit filed in 1998, the suit against Google focuses on Google’s contracts with hardware vendors like Apple and Samsung, browser makers like Mozilla, Opera, and (again) Apple, and other technology companies whose products integrate with Google search or use Google’s Android operating system. These contracts, say the complaint, generally require technology companies to make Google the default search engine. In the case of devices that run Android, Google’s contracts also require vendors to include a bundle of Google apps (Gmail, Maps, YouTube). And vendors must agree not to modify Android in any significant way, even though the operating system is released under an open source license.

Implicit in the DOJ’s complaint is the notion that Google uses its control over multiple products and services (including search, email, video, and operating systems) to maintain its monopoly over search. Because of Google’s contracts, competitors in search like DuckDuckGo will struggle to offer an alternative to Google search unless it can also offer a mobile operating system, an email client, and so on.

Yes, Free Services Can Be Monopolized

Over the past several years, as the public and policymakers began looking to antitrust to rein in the biggest tech companies, there’s been plenty of concern about the difficulty of applying competition law to products that are free to the consumer. Over the years, U.S. regulators applying antitrust law have taken on a narrow focus on consumer prices, often finding that monopolistic behavior is OK as long as prices don’t rise. The DOJ’s complaint does a good job of getting around this hurdle while still focusing on harm to consumers. It alleges that as a monopolist in the “general search” market, Google “would be able to maintain quality below the level that would prevail in a competitive market.” Yes, consumers can get search for free, but they could get an even better free service if not for Google’s market power.

The complaint also employs a strategy that EFF has long advocated: treating consumer privacy as an aspect of product quality, such that overcollection and misuse of customers’ personal information by a monopolist can be evidence of harm to consumer welfare, the touchstone of modern antitrust law. “Google’s conduct,” says the complaint, “has harmed consumers by reducing the quality of general search services (including dimensions such as privacy, data protection, and use of consumer data), lessening choice in general search services, and impeding innovation.”

On the innovation angle, the complaint alleges that Google’s contracts deny potential search competitors the benefits of scale, which “affects a general search engine’s ability to deliver a quality search experience.” In other words, we would see more innovation in search engines if other entrepreneurs were able to compete with Google at scale.

We Don’t Want Your Money, We Want Change


EFF and many other watchdog organizations have long argued that money damages don’t do enough to change Big Tech practices. Any award of damages large enough to affect the future behavior of a company the size of Google (and its parent, Alphabet) would have to be far larger than even the largest antitrust damages ever awarded by a court. Otherwise, Google and its Big Tech brethren treat fines and damages as a necessary cost of doing business.

The DOJ’s suit takes a different approach. Its complaint asks for “structural relief,” which means a breakup or restructuring of the company, and court orders to stop the anticompetitive practices described in the complaint, but no money damages. If the government can prove that Google violated the antitrust laws, choosing to forego money damages should help the court focus on crafting effective structural and conduct remedies.

Banking on The Power of Defaults

Many of the claims in the suit are built on the power of default settings: users are likely to stick with whatever search engine their devices are preconfigured to use, even if they can choose a different search engine. Google’s public messaging has challenged this principle for many years, arguing that “competition is only a click away.”

In their first public response to the DOJ lawsuit, Google argues that “our competitors are readily available too, if you want to use them.” But according to the complaint, research shows that people stick with the defaults, especially on mobile devices.

We’ve been here before. Microsoft raised a similar defense 20 years ago, arguing that its efforts to drive Windows users to its Internet Explorer browser were not illegal because users could install another browser at any time. The Court of Appeals for the DC Circuit treated Microsoft’s argument with skepticism, and its decision implied that default settings can be anticompetitive and form part of an antitrust violation.

Still, most antitrust cases are decided on the “rule of reason,” meaning a balancing of pro-competitive and anti-competitive effects. We can expect to see heated arguments in this case about just how easy it is to use alternative search engines and what that means for the ability of competitors like DuckDuckGo to thrive.

What’s Not In The Suit

Three things are glaringly absent from the complaint. First, despite the efforts of some politicians to paint the suit as Google’s comeuppance for allegedly censoring conservative viewpoints, the complaint says nothing about ideological bias or censorship. That’s not surprising to antitrust attorneys, because the claims of bias simply don’t help to make an antitrust case. We hope those comments about the lawsuit don’t end up fueling a defense by Google that the suit is an attempt at partisan score-settling. This sort of accusation clouded the DOJ’s ultimately unsuccessful effort to stop the merger of AT&T and Time Warner.

Second, the complaint doesn’t include any claims of monopoly abuse in web advertising markets or mobile operating systems. And it doesn’t specifically mention Google’s history of acquiring companies that could become serious competitors, including companies whose technology now powers Google’s search advertising. The government can still argue that Google’s acquisitions were part of its illegal monopoly maintenance, but the complaint suggests it’s not a major part of the case so far.

Third, the government did not bring any claims under Section 1 of the Sherman Act, the well-known provision that bans any “contract, combination . . . or conspiracy in restraint of trade.” Since the suit focuses on Google’s contracts with hardware makers and others, we would expect the government to argue that those contracts were themselves illegal restraints, as well as contributing to a campaign of illegal monopoly maintenance. The absence of Section 1 claims in this suit is odd.

The Rest of the Picture

Big Tech companies have been under scrutiny for years for being too big and too willing to wield market power in ways that are abusive or exacerbate existing problems. Unfair labor practices, outsized control over others’ speech, and locking out new products by enforcing incompatibility on a technical level are a few that come to mind. If this lawsuit is the best opportunity in a generation to hold Big Tech accountable, it may seem disappointing that none of these issues are addressed. But it shouldn’t be. Today’s antitrust law focuses narrowly on consumer welfare, often permitting monopoly abuses as long as they don’t lead to higher consumer prices in the short term.

The DOJ’s suit is an attempt to show that Google’s practices have harmed consumer welfare. If lawsuits are going to address other harms, Congress needs to act to return antitrust laws to their historic focus on preventing and ending monopolies that harm workers, markets, competitors, and innovation. As the lawsuit continues, we’ll be pressing Congress to update our antitrust laws to address more of the harms of Big Tech monopolies.

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Author: Mitch Stoltz

Fool Us Once, Shame on You; Fool Us Forever, Shame on Us All

Why people continue to trust government officials is a mystery. Often disconnected from the problems at hand, their policies also often contradict their supporters’ frequently expressed beliefs. While suffering from cost overruns and increasing budget deficits, these policies handsomely reward their cronies, too.

A good example is the latest attempt to pass yet another COVID-19 relief bill. House Speaker Nancy Pelosi called Republicans’ failure to agree to her $2.2 trillion bill “malfeasance.” Never mind that the White House’s $1.8 trillion proposal was right up there with hers.

It’s right to help those low-income Americans hurt by the pandemic-induced recession. But that relief bill shouldn’t cost anywhere near $2 trillion. Think about this: When the economy was more solidly locked down back in March, unemployment was above 14 percent; growth was collapsing; people were scared; and when politicians were throwing all the money they could grab at anything that crossed their minds, Congress passed the $2.2 trillion Coronavirus Aid, Relief and Economic Security Act. Today, unemployment is down by half; the economy is growing again; pretty much everything is improving; but both the Democrats and the White House still want another $2 trillion.

The $500 billion “skinny” stimulus bill proposed by Senate Republicans is more in line with the current circumstances.

Making matters worse, the White House and Democrats want to spend that $2 trillion on the same programs as before. Given the flaws exposed in the previously approved programs, this repetitiveness is inexcusable.

For instance, the $600 bonus unemployment benefit created incentives for workers to leave their jobs to collect the government payment. The government’s Payroll Protection Program, or PPP, loans, administered by the Small Business Administration, were a disaster to implement. It also soon became known that most of the PPP loans went to areas relatively unharmed by the pandemic. And, let’s not forget, the $25 billion airline bailout that was meant to prevent layoffs only postponed them until the beginning of October. The bailout, however, did clearly benefit shareholders and creditors.

The Congressional Budget Office tried to calculate the economic impact of these programs, and the results are underwhelming. For every dollar invested in unemployment benefits, we got a 67-cent return. The PPP returned 36 cents. Aid to state and local governments returned 88 cents on the dollar. The overall coronavirus relief bill returned 60 cents in economic growth per dollar invested. In other words, the COVID-19 relief was depressive, not simulative. Yet as a result, our budget deficit is now $3.3 trillion.

We might excuse the failure of these policies if they were, in fact, the product of a lack of time to consider the economic impact and consequences of the programs Congress was designing. But they have now had nine months to observe and consider new measures. And they still propose what is effectively the Coronavirus Aid, Relief and Economic Security Act 2.0.

Indeed, Pelosi’s bill contains another round of payments up to $1,200 for individuals and $500 for each dependent, with more $600 weekly enhanced federal unemployment payments through January 2021, followed by a transition period through March 2021. It also provides for an extension of the Pandemic Unemployment Assistance program through the same period (January/March), $225 billion for child care and education, more funding for the PPP, another $25 billion airline bailout, and plenty of state and local government aid.

The White House proposal includes much of the same, minus an extension of the state and local tax deduction (which mostly benefits higher-income taxpayers) that Democrats have been pining for ever since it was capped by the Republicans’ 2017 tax reform.

So, again, I ask, why do people trust politicians? Are our memories so faulty? Case in point: During the last presidential debate, Joe Biden claimed that no one lost insurance due to the implementation of the Affordable Care Act. That’s a bold claim to make. That same statement, when made by former President Barack Obama as he pushed for the legislation before its implementation, was once named the “Lie of the Year” by PolitiFact. But Biden still felt it was safe to make such a claim.

If it’s the case that politicians don’t really try to pass policies that will succeed, keep the deficit low and tell the truth — because they can get away with bad policies, misleading claims, and spectacular deficits — then shame on them. But if we keep letting them get away with this ruse, then the shame ultimately lies with us.

Veronique de Rugy is a senior research fellow at the Mercatus Center at George Mason University. To find out more about Veronique de Rugy and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at www.creators.com.
COPYRIGHT 2020 CREATORS.COM

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Author: Veronique de Rugy

EFF Files Amicus Brief Arguing That Law Enforcement Access to Wi-Fi Derived Location Data Violates the Fourth Amendment

With increasing frequency, law enforcement is using unconstitutional digital dragnet searches to attempt to identify unknown suspects in criminal cases. In Commonwealth v. Dunkins, currently pending before the Pennsylvania Supreme Court, EFF and the ACLU are challenging a new type of dragnet: law enforcement’s use of WiFi data to retrospectively track individuals’ precise physical location.

Phones, computers, and tablets connect to WiFi networksand in turn, the Internetthrough a physical access point. Since a single access point can only service a limited number of devices within a certain range, WiFi networks that have many users and cover larger geographic areas have multiple stationary access points. When a device owner moves through a WiFi network with multiple access points, their device seamlessly switches to the nearest available point. This means that an access point can serve as a proxy for a device owner’s physical location. As an access point records a unique identifier for each device that connects to it, along with the time the device connected, access point logs can reveal a device’s precise location over time.

In Dunkins, police were investigating a robbery that occurred in the middle of the night in a dorm at Moravian College in eastern Pennsylvania. To identify a suspect, police obtained logs of every device that connected to the 80-90 access points in the dormabout one access point for every other dorm roomaround the time of the robbery. From there, police identified devices belonging to several dozen students. They then narrowed their list to include only non-residents. That produced a list of three devices: two appeared to belong to women and one appeared to belong to a man who later turned out to be Dunkins. Since police believed the suspect was a man, they focused their investigation on that device. They then obtained records of Dunkins’ phone for five hours on the night of the robbery, showing each WiFi access point on campus that his phone connected to during that time. Dunkins was ultimately charged with the crime. 

We argued in our brief that searches like this violate the Fourth Amendment. The WiFi log data can reveal sensitive location information, so it is essentially identical to the cell phone location records that the Supreme Court ruled in Carpenter require a warrant. Just like cell phone records, the WiFi logs offered the police the ability to retrospectively track a person’s movement, including inside constitutionally protected spaces like students’ dorm rooms. And just as the Carpenter court recognized that cell phones are essential for participation in modern life, accessing a college WiFi network is equally indispensable to college life. 

Additionally, we argued that even if police had obtained a warrant, such a warrant would be invalid. The Fourth Amendment requires law enforcement to obtain a warrant based on probable cause before searching a particular target. But in this case, police only knew that a crime occurred—they did not have a suspect or even a target device identifier. Assessing virtually the same situation in the context of a geofence warrant, two federal judges recently ruled that the government’s application to obtain location records from a certain place during a specific time period failed to satisfy the Fourth Amendment’s particularity and probable cause requirements. 

The police’s tactics in this case illustrate exactly why indiscriminate searches are a threat to a free society. In acquiring and analyzing the records from everyone in the dorm, the police not only violated the defendant’s rights but they also wrongly learned the location of every student who was in the dormitory in the middle of the night. In particular, police determined that two women wholly unconnected to the robbery were not in their own dorm rooms on the night of the crime. That’s exactly the type of dragnet surveillance that the Fourth Amendment defends against. 

The outcome of this case could have far-reaching consequences. In Pennsylvania and across the nation, public WiFi networks are everywhere. And for poor people and people of color, free public WiFi is often a crucial lifeline. Those communities should not be at a greater risk of surveillance than people who have the means to set up their own private networks. We hope the court will realize what’s at stake here and rule that these types of warrantless searches are illegal.

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Author: Jennifer Lynch