Techdirt

The Kids Online Safety Act (KOSA) is back in the Senate. Sponsors are claiming—again—that the latest version won’t censor online content. It isn’t true. This bill still sets up a censorship regime disguised as a “duty of care,” and it will do what previous versions threatened: suppress lawful, important speech online, especially for young people.

KOSA Still Forces Platforms to Police Legal Speech

At the center of the bill is a requirement that platforms “exercise reasonable care” to prevent and mitigate a sweeping list of harms to minors, including depression, anxiety, eating disorders, substance use, bullying, and “compulsive usage.” The bill claims to bar lawsuits over “the viewpoint of users,” but that’s a smokescreen. Its core function is to let government agencies sue platforms, big or small, that don’t block or restrict content someone later claims contributed to one of these harms.

This bill won’t bother big tech. Large companies will be able to manage this regulation, which is why Apple and X have agreed to support it. In fact, X helped negotiate the text of the last version of this bill we saw. Meanwhile, those companies’ smaller competitors will be left scrambling to comply. Under KOSA, a small platform hosting mental health discussion boards will be just as vulnerable as Meta or TikTok—but much less able to defend itself.

To avoid liability, platforms will over-censor. It’s not merely hypothetical. It’s what happens when speech becomes a legal risk. The list of harms in KOSA’s “duty of care” provision is so broad and vague that no platform will know what to do regarding any given piece of content. Forums won’t be able to host posts with messages like “love your body,” “please don’t do drugs,” or “here’s how I got through depression” without fearing that an attorney general or FTC lawyer might later decide the content was harmful. Support groups and anti-harm communities, which can’t do their work without talking about difficult subjects like eating disorders, mental health, and drug abuse, will get caught in the dragnet.

When the safest legal option is to delete a forum, platforms will delete the forum.

There’s Still No Science Behind KOSA’s Core Claims

KOSA relies heavily on vague, subjective harms like “compulsive usage.” The bill defines it as repetitive online behavior that disrupts life activities like eating, sleeping, or socializing. But here’s the problem: there is no accepted clinical definition of “compulsive usage” of online services.

There’s no scientific consensus that online platforms cause mental health disorders, nor agreement on how to measure so-called “addictive” behavior online. The term sounds like settled medical science, but it’s legislative sleight-of-hand: an undefined concept given legal teeth, with major consequences for speech and access to information.

Carveouts Don’t Fix the First Amendment Problem

The bill says it can’t be enforced based on a user’s “viewpoint.” But the text of the bill itself preferences certain viewpoints over others. Plus, liability in KOSA attaches to the platform, not the user. The only way for platforms to reduce risk in the world of KOSA is to monitor, filter, and restrict what users say.

If the FTC can sue a platform because minors saw a medical forum discussing anorexia, or posts about LGBTQ identity, or posts discussing how to help a friend who’s depressed, then that’s censorship. The bill’s stock language that “viewpoints are protected” won’t matter. The legal incentives guarantee that platforms will silence even remotely controversial speech to stay safe.

Lawmakers who support KOSA today are choosing to trust the current administration, and future administrations, to define what youth—and to some degree, all of us—should be allowed to read online.

KOSA will not make kids safer. It will make the internet more dangerous for anyone who relies on it to learn, connect, or speak freely. Lawmakers should reject it, and fast.

Reposted from the EFF’s Deeplinks blog.

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This week, our first place winner on the insightful side is Stephen T. Stone with a comment about Stephen Miller suggesting the suspension of habeas corpus:

Remember: Once they suspend the civil rights of non-citizens, they’ll only ever need to declare someone a non-citizen to justify black-bagging an American citizen off the street and sending them to a blacksite or a foreign concentration camp.

If you voted for Trump, you voted for this. Accept it. Own it. This is who you wanted; this is what you got; this is the kind of person you are, were, and always will be unless you prove otherwise. And saying “no, this isn’t what I wanted” won’t be enough⁠—not this time, not ever again.

In second place, it’s Bilateralrope with a comment about how Hasan Piker handled being detained by CBP:

Requesting a lawyer probably would have worked much faster. Maybe a few minutes of questioning before they realize that they aren’t going to get anything, then letting him go so they can move to their next target.

But now they have two hours of testimony that they can go through looking for any lies they can blackmail him with.

For editor’s choice on the insightful side, we start out with Citizen and another comment about the notion of suspending habeas corpus:

“I voted for the leopards to eat other people’s faces.”

And MAGA cheers the prospect. They’re confident that they’ll never be targeted, even by mistake, so they don’t really care if they no longer have habeas corpus rights themselves since it just hinders efforts to get rid of the people they hate. The few who realize that mistakes will happen are perfectly fine with playing the role of Archibald Buttle as long as it means the people they hate are gone, too.

Next, it’s luxx with a comment about Democrats helping to bring back KOSA:

Turns out that when people like Schumer talk about “reaching across the aisle” and “bipartisanship,” what they really mean is that the division between Republican and Democrat is far less divisive than the uniting force of being an out-of-touch septuagenarian in the pockets of corporate power brokers.

Over on the funny side, our first place winner is Pixelation with a reply to another comment correcting a typo in a common phrase we used:

Yes, because tongue in creek would be rather gross.

In second place, it’s That One Guy with a thought about Trump firing the Librarian of Congress:

‘A non-white in a postion of power/employment? Must be a result of DEI!’

“In the grand scheme of things, firing the Librarian of Congress may seem minor, but this was yet another example of a highly qualified, dedicated public servant that Trump fired for no good reason.”

I’m sure there’s a reason, but I can’t qwhite put my finger on what it might be…

For editor’s choice on the funny side, we start out with a comment from Thad about our post that referred to Clarence Thomas as Samuel Alito’s sidekick:

Hey now. If anything, Alito is Thomas’s sidekick.

Finally, it’s MrWilson with a reply to another comment noting that “vaccine skeptic” is much too mild as a description of RFK Jr.:

Not skeptic, just septic.

That’s all for this week, folks!

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The Supreme Court has delivered a clear rebuke to the Trump administration’s attempt to weaponize the Alien Enemies Act, issuing a slightly more detailed ruling that follows up on last month’s midnight emergency order. That emergency ruling came as the administration was literally loading detainees onto buses headed to airports, racing to deport them before courts could intervene.

Justice Alito filed a dissent to that ruling a couple of days later, whining about the procedural nature of it and (falsely, it turns out) claiming that there was no rush and that detainees weren’t going to be trafficked to a foreign gulag in the meantime.

Now the Supreme Court has come out with a more detailed ruling in the case, per curiam (meaning none of the Justices put their names directly to it) saying that the Government is simply wrong to use the Alien Enemies Act like this.

The ruling starts out by highlighting just how wrong Alito was in pretending that the government was in no rush to send the detained Venezuelans to a Salvadoran gulag, while noting the stance the Trump admin has taken in the Abrego Garcia case that once they’ve removed someone from the country the courts have no jurisdiction any more:

We understood the Government to assert the right to remove the detainees as soon as midnight central time on April 19. The Government addressed the detainees’ allegations on April 18 only at an evening hearing before the District Court for the District of Columbia, where the detainees had separately sought relief. The Government guaranteed that no putative class members would be removed that day. Tr. of Proceedings in J. G. G. v. Trump, No. 25−cv−766, ECF Doc. 93, p. 9. But it further represented that, in its view, removal of putative class members as soon as the next day “would be consistent with” its due process obligations, and it “reserve[d] the right” to take such action. Id., at 26; see id., at 16 (explanation by the court that “tomorrow . . . starts at 12:01 a.m.”). Evidence now in the record (although not all before us on April 18) suggests that the Government had in fact taken steps on the afternoon of April 18 toward removing detainees under the AEA—including transporting them from their detention facility to an airport and later returning them to the facility. See Supp. App. to Reply 1a−5a. Had the detainees been removed from the United States to the custody of a foreign sovereign on April 19, the Government may have argued, as it has previously argued, that no U. S. court had jurisdiction to order relief. See Application To Vacate Injunction in Noem v. Abrego Garcia, No. 24A949 (Apr. 7, 2025), pp. 11−20.

But, as the seven justices who signed on note, that’s not at all how this works, and it highlights that the administration’s posturing in other cases show how important this issue is, and why it’s fine for the Supreme Court to take it up so quickly:

The Government does not contest before this Court the applicants’ description of the notice afforded to AEA detainees in the Northern District of Texas, nor the assertion that the Government was poised to carry out removals imminently. The Government has represented elsewhere that it is unable to provide for the return of an individual deported in error to a prison in El Salvador, see Abrego Garcia v. Noem, No. 25−cv−951 (D Md.), ECF Docs. 74, 77, where it is alleged that detainees face indefinite detention, see Application for Injunction 11. The detainees’ interests at stake are accordingly particularly weighty.

And then, most importantly, the Supreme Court makes it clear that giving detainees just 24 hours to try to respond to a notice of removal is not actually due process:

Under these circumstances, notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.

That’s the key line in the latest ruling.

But, still, it believes the case should now move through a more proper process in the lower courts, but that requires the US government to allow for those cases to move properly, rather than just throwing these people on airplanes. Thus, it sends the case back to the lower courts while making it clear no one should be removed while those courts handle the detainees’ due process.

To be clear, we decide today only that the detainees are entitled to more notice than was given on April 18, and we grant temporary injunctive relief to preserve our jurisdiction while the question of what notice is due is adjudicated.

Justice Alito, along with his sidekick Justice Thomas, unsurprisingly dissents. As per usual, they pretend that this is entirely about the procedural aspects of the case and that the Supreme Court has no jurisdiction over the case. Alito claims it’s unfair to expect a district court to respond so quickly and that he just doesn’t see what all the fuss and rush is about. The majority decision points out (in nicer terms) that he’s living in a fantasy world:

First, we reject the dissent’s characterization of the events that transpired on April 18, which lead it to question our jurisdiction. District courts should approach requests for preliminary relief with care and consideration, see post, at 3−4 (ALITO, J., dissenting), but exigent circumstances may impose practical constraints. Preliminary relief is “customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.” Lackey v. Stinnie, 604 U. S. ___, ___ (2025) (slip op., at 6) (quoting University of Tex. v. Camenisch, 451 U. S. 390, 395 (1981)). The purpose of such relief is “merely to preserve the relative positions of the parties” pending further proceedings. Lackey, 604 U. S., at ___ (slip op., at 6) (quoting Camenisch, 451 U. S., at 395).

In this case, the record before the District Court, although limited, indicated that removals of putative class members were likely imminent. Contra, post, at 4−6 (ALITO, J., dissenting). The detainees attached four declarations to their emergency motion for a TRO. In one, for example, an attorney relayed a detainee’s report that immigration officers “had informed them that they will be deported either today or tomorrow.” ECF Doc. 30−1. In a second, a nonprofit director described conversations with family members of detainees and linked to a video of detainees holding notices of removal as evidence that detainees “were being removed.”

Importantly, the relevant question for purposes of our jurisdiction is whether, at the time this Court was called upon to intervene, the District Court’s inaction had the effect of refusing an injunction. In their application to this Court, the detainees represented that “[m]any individuals [had] already been loaded on to buses, presumably headed to the airport.” Application for Injunction 1. Shortly thereafter, the Government represented on the record in federal court that it reserved the right to remove detainees after midnight. We had the power to issue injunctive relief to prevent irreparable harm to the applicants and to preserve our jurisdiction over the matter

Perhaps most tellingly, Justice Kavanaugh’s concurrence cuts through the procedural dance, essentially acknowledging that the current system of emergency orders and circuit court ping-pong isn’t serving anyone. His suggestion that the Court should just take the case directly highlights both the urgency of the constitutional questions at stake and a growing institutional impatience with the administration’s tactics:

The circumstances call for a prompt and final resolution, which likely can be provided only by this Court. At this juncture, I would prefer not to remand to the lower courts and further put off this Court’s final resolution of the critical legal issues. Rather, consistent with the Executive Branch’s request for expedition—and as the detainees themselves urge—I would grant certiorari, order prompt briefing, hold oral argument soon thereafter, and then resolve the legal issues.

There’s still much more to go in this case, but it does appear that a clear majority of the Court is at least somewhat concerned about the way the Trump admin is rushing people onto planes to kick them out of the country without due process, and then you have Alito and Thomas whining in the corner that there’s no need to rush, even as detainees were being loaded into buses to take them to the airport.

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If you’re from Texas or its surrounding states, you’ve probably heard of Buc-ee’s. The gas station and convenience store chain is a staple of the area and has a well-known branded logo that looks like this.

I recently came across a settlement that was the result of a trademark suit Buc-ee’s initiated back in November against Duckees Drive Thru, which is a liquor store in Missouri. The details of the settlement were, as frustratingly usual, not made public. But I would have to damned well hope the settlement wasn’t too much in favor of Buc-ee’s given the details of the case. Liquor stores aren’t gas stations, Buc-ee’s and Duckees aren’t actually all that similar thanks to the distinctive dash in the former’s name, and you couldn’t possibly get me high or drunk enough to make me think this logo looks confusingly similar to Buc-ee’s.

Unless Missouri beavers look different than what I’m used to, that’s a duck. The only settlement that should have occurred would be for Buc-ee’s to “settle” for being told to “duck” all the way off.

It turns out this isn’t some one-off. Apparently anytime Buc-ee’s sees another company out there in even a remotely tangential industry that has an animal cartoon with a yellow circle behind it for a logo, they go full feral beaver over it. There are many, many examples of this.

There is the active suit right now between Buc-ee’s and Choke Canyon, a barbeque joint, with the former arguing this looks too much like a beaver.

Thank god Steve Irwin isn’t alive to see that one.

How about this one, which also ended in a settlement, for a chicken joint?

During the case, which Chicks settled out of court, Buc-ee’s brazenly accused the store of improper use of: “friendly smiling cartoon animals,” “the use of a black circle,” “the use of a yellow background,” “the use of the red-colored cockscomb on the heads of the chickens,” “the prominent use of sharply drawn black edges,” and “the use of six letters in raised and lowered block font in the name.”

Besides the fact that Buc-ee’s accused someone who wasn’t cooking their Trail Boss Habanero Hot Beef Jerky of improper use of a chicken’s cockscomb in an official court document, two other takeaways are clear: Buc-ee’s seems to believe that it owns yellow backgrounds and it doesn’t fuck around.

Or how about Irv’s, a restaurant that doesn’t even feature a non-human animal?

“Defendants’ blatant copying of the Beaver Logo shows that Defendants’ actions are willful, knowing, and committed with the intent of benefiting from the goodwill and concept of Buc-ee’s…,” the complaint against Irv’s states, before offering a photo comparison (included below).

“From a distance it is difficult to discern the logo from the logo of Buc-ee’s.”

And yet that one also ended in a settlement.

To be clear, this is pure trademark bullying bullshit. Buc-ee’s is big and these others are small and so they cave. And since nobody in the legal and court systems are willing or capable of doing anything about it, the bullying continues unabated. In a just world, Buc-ee’s would be sanctioned for even wasting the court’s and its victims’ time, money, and energy with this bullshit.

But in lieu of justice, we can at least highlight the company’s bullying ways for the public.

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Fresh off of his Mother’s Day swim in a literal shit creek, RFK Jr. sat before House and Senate committees to answer questions about the impact of the proposed Trump budget on Health and Human Services (HHS), the cuts that have and are proposed further for HHS, and an explanation for why some programs are being saved while others are being cut. In his testimony, Kennedy advocated for the Republican budget, including those major cuts to his own ability to deliver on HHS’ mission.

Straight from the HHS website, here is its mission statement.

The mission of the U.S. Department of Health and Human Services (HHS) is to enhance the health and well-being of all Americans, by providing for effective health and human services and by fostering sound, sustained advances in the sciences underlying medicine, public health, and social services.

That mission statement is obviously no longer valid. Like, at all. HHS certainly isn’t enhancing health anywhere at all compared to a couple of months ago. Social services and public health facilities are being cut back, not advanced. And the “sound science” bit? Miss me with that bullshit while RFK Jr. is leading the charge on American medicine and healthcare.

And it seems RFK Jr. agrees on that last point as well. Kennedy not only currently heads up HHS, but he has written several books on the topics of health, medicine, and healthcare over the years. They include titles like The Real Anthony Fauci, The Wuhan Cover-Up, Vax-Unvax: Let the Science Speak, and Profiles of the Vaccine Injured, among others. These all touch heavily upon medicine and healthcare, advising the reader as to the truth within medicine or advocating for one health policy or another.

Which makes it pretty fucking rich when Kennedy said this in response to a question about whether he would advocate for the public to get certain vaccinations in these same hearings.

“If you had a child today, would you vaccinate that child for measles?” began the Democratic congressman Mark Pocan of Wisconsin at the House appropriations committee hearing.

“For measles? Um, probably for measles,” said Kennedy, in one of the few hesitations of the hearing. “What I would say is my opinions about vaccines are irrelevant … I don’t want to seem like I’m being evasive, but I don’t think people should be taking advice, medical advice, from me.”

On the one hand, hey, he finally said something medically sensible: don’t take advice from him. That’s, well, good advice. On the other hand, maybe it would be better if we had someone leading HHS who’s advice we could listen to? I know, crazy idea, but it just might work.

And given the volume of medical advice Kennedy has dispensed over the years, it’s both remarkable that he would make that statement and equally remarkable that he can’t manage to take any sort of stance on several medical questions in front of Congress.

Pocan went on to ask about chickenpox.

“Um, again, I don’t want to give advice,” Kennedy said, before commenting on shingles.

Pocan continued: “Polio?”

“Polio?” Kennedy said. “Again, I don’t want to be giving advice.”

The issued re-emerged in his afternoon testimony before the Senate committee on health, education, labor and pensions, where the Democrat Chris Murphy asked Kennedy if he would recommend the measles vaccine. The secretary demurred, prompting Murphy to say: “I think that’s really dangerous for the American public and for families.

“The secretary of health and human services is no longer recommending the measles vaccines,” Murphy said.

Again, we’re in the middle of a ballooning measles outbreak in America and the Secretary of HHS can’t figure out a way to tell the public to get an MMR vaccine that is safe and effective. Good times.

There’s a long tail aspect to all of this. Even were Kennedy to be removed from his post today — a move that is so overly justified as to be laughable — the effects of his holding the position even these few months are going to be felt for decades, if not longer. There are already deaths at least partially on his hands. How long is the current administration really going to let this go on?

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We mentioned recently that the only remaining Democratic commissioner at the FCC (and the only remaining Dem commissioner across both the FCC and FTC since Trump illegally fired the Democratic FTC Commissioners) has started calling out FCC Commissioner Brendan Carr’s attacks on free speech. In a speech yesterday, she went even further: calling out the administration’s bullshit attacks on free speech, Section 230, DEI… and closing on a remark regarding the likelihood of her getting fire. Given that the entire thing is relevant to Techdirt’s usual content, we’re running the published transcript of her speech. Please read the entire thing.

REMARKS OF FCC COMMISSIONER ANNA M. GOMEZ****2025 MEDIA INSTITUTE COMMUNICATIONS FORUMMay 15, 2025

Good afternoon. It’s a pleasure to be back at the Media Institute.  When I spoke here last year, I mused about how much had changed since I spoke at a Media Institute lunch in 2009.  I think it’s safe to say that the rate of change has accelerated over the past year.

Our current political moment poses challenges unlike anything I thought I would face as an FCC Commissioner.  This Administration has been on a campaign to censor and control since, well, before day one.  And since day one the FCC has been implementing the will of this Administration and undermining the First Amendment at every turn.

The First Amendment has protected our fundamental right to speak freely and to hold power to account since 1791. It is foundational to our democracy.  Today, the greatest threat to that freedom is coming from our own government.

Silencing dissenting voices is not a show of strength—it’s a sign of weakness.  It comes from a place of fear.  Fear that opposing views, rather than presidential decrees, will win out in the public debate of ideas.

And that is why I am here today and have been speaking out broadly.

I realize that, in this space, I am preaching to the proverbial choir.  But it is worth noting that never in my career have I received as much support as I have for speaking out about the importance of the First Amendment and the dangers the current FCC’s actions pose to democracy.

And, over the last few months, I’ve found myself aligned with voices with which I never imagined I’d agree.  Why?  Because across the ideological spectrum there remains a shared belief that the First Amendment is fundamental to democracy and is worth fighting for, even—and especially—when it’s politically inconvenient.

The Administration’s coordinated efforts to censor and control are manifesting in a multitude of ways.

In the Tech Media Telecom ecosystem, they have initiated investigations and floated debilitating rate regulation schemes that target national network broadcasters for their newsrooms’ editorial decisions, harassed private companies for their Diversity, Equity, and Inclusion efforts and threatened tech companies that respond to consumer demands for content moderation and fact-checking.  Separately, they have attempted to shutter Voice of America and sought retribution against lawful residents that protest Administration policies.

They are banning books and seeking to erase history from the public record and from our national museums.  And they are targeting law firms, unions, and all those that have the skills and the will to stand up for the victims of this campaign of censorship and control.  And, of course, I cannot leave out the fact that they have been firing presidentially appointed, Senate-confirmed Commissioners of multimember independent agencies who dare to speak the truth.

Broadly speaking, these efforts are unprecedented and indefensible.

Today I want to talk about the FCC actions that are antithetical to the goals of the Communications Act, the remit of the agency, and the guarantees of the First Amendment.

Broadcasting

Let’s start with broadcasting.

Last year at this luncheon I made what I thought was an obvious statement: “our country needs a press free from interference from regulators like me.”  Yet here we are.

The FCC’s licensing authority is being weaponized to chill speech and to punish the press.  We are witnessing a dangerous precedent: the transformation of an independent regulator into an instrument of political censorship.  This FCC has made clear that it will go after any news outlet that dares to report the truth if that truth is unfavorable to this Administration.

This isn’t the first time that the FCC has faced Administration pressure to weaponize its broadcast licensing authority.  In 1939, FDR named Larry Fly chairman of the FCC.  Chairman Fly, best known for his focus on addressing monopolization of the airwaves, called attention to the fact that NBC and CBS could “say what more than half of the people may or may not hear,” and he underscored that “Democracy [could not] rest upon so frail a reed.”

During this time, FDR was convinced that newspaper publishers were biased against him, and he saw radio as the next avenue through which the press would provide unfavorable coverage of him.  So, FDR asked Fly to ban newspapers from getting FM licenses.  Rather than capitulating to Administration pressure, Fly refused to take punitive, politically motivated action against the press.  Instead, he underscored that the FCC would not ban radio licenses for newspapers, and he reaffirmed the agency’s commitment to diversity in media control.

Again, during the Kennedy administration, the FCC faced pressure from the White House.  Reacting to an unfavorable NBC news report, President Kennedy called on Chairman Newton Minnow to withdraw NBC’s licenses.  And the next day, Minnow told a Kennedy aide, “tell the President he is lucky to have an FCC Chairman who does not always do what he is told.”  Minnow stood up against the weaponization of the agency’s licensing authority, an action for which President Kennedy later thanked him.

This is what courage looks like—FCC Chairs refusing to wield the agency’s licensing authority as a weapon in contravention of the First Amendment and the Communications Act, even in the face of political pressure.

I want to be clear.  In addition to undermining informed civic engagement, there are serious health and safety consequences to silencing broadcasters.  Imagine your local TV or radio station goes dark because the FCC doesn’t like something an anchor said.  That’s not just a media story.  That’s a threat to public safety.

I’ve visited local TV and radio stations across the country and in a variety of communities.  Local news provides lifesaving information during storms, wildfires, and other emergencies.  It serves veterans, seniors, and rural communities.  But partisan politics is now putting these resources at risk.  The FCC should not be in the business of controlling access to vital local information.  We should be promoting free and open access to the news.

Unfortunately, the Administration efforts to censor and control appear to be working, at least for now.  Some media outlets are finding it is easier to retreat in the face of government threats, veiled or otherwise, than to be responsive to their audiences.

As I’m sure you’re all aware, last month Bill Owens, the executive producer of 60 minutes resigned.  He started at CBS News as an intern in 1988 and was only the third executive producer to run 60 minutes in its 57-year history.  He resigned because he no longer felt he had the “independence that honest journalism requires.”  Pardon my language, but that is a B.F.D.

Speaking as a government regulator, we need journalists to report the truth even when it cuts against our arguments or our political biases.  And corporate parents should give journalists the independence they need. A free press requires free journalists.

On the international front, Voice of America and Radio Marti were once models of press freedom in contrast to propaganda regimes like those in Russia and China.  Efforts to shutter these institutions or to undermine their independence sends a global message: America no longer practices what it preaches.  This is extremely concerning.

The press is the fourth estate.  The delicate system of checks and balances upon which American democracy is built does not function without a free press.  To the journalists out there, do not capitulate, continue to speak up and hold power to account.

Section 230

A conversation about freedom of the press and censorship should include speech online, so I am going to turn to online speech and the growing government effort to undermine Section 230.

Just as the Administration is attacking journalists that hold it to account, it is attacking digital media platforms that provide fact-checking and moderation of content its users do not want.  Claiming such user-supported moderation constitutes censorship, the Administration has pressured social media companies to stop these practices.  One tool it is using in this effort is the threat that the Commission may reinterpret or adopt rules regarding Section 230.

As the Supreme Court has held, moderation by private companies is itself a form of speech that is protected by the First Amendment.  When online platforms respond to their users’ demands by moderating content in specific ways, they’re not censoring—they’re exercising their right to speech.  Fact-checking, filtering, and moderation are all legitimate responses to user demand. The government’s duty under the First Amendment isn’t to second-guess these market offerings.  It’s to stay out of the way.

I acknowledge that there are many valid concerns about how we engage in the proverbial digital town square and Congress may well determine Section 230 needs reform.  Until that happens, however, Section 230 plays a critical role by providing digital platforms with the ability to establish rules of behavior in their own little corners of the Internet.  By permitting digital platforms to set up rules to moderate the content users post, they are able to offer unique features and experiences that attract customers.

If a digital platform has a specific vision for social discourse that it wants to make available to consumers, including allowing users to deploy their own choice of content moderation tools, Section 230 and the First Amendment allow it to create that world and to offer it as a service to the public.

FCC proposals to weaponize Section 230, however, are not efforts to solve the widely-recognized problems with online platforms.  They are attempts to increase government control of online speech by exposing platforms that want to facilitate user-supported fact-checking or create welcoming online environments to debilitating lawsuits.  This is not about reining in Big Tech. This is about censorship.

Let’s review: the Administration’s ongoing campaign of censorship and control is not only chilling speech but it is also attempting to control who gets to speak.  Another example of this attempt to control is punishing private companies for their fair hiring practices.

DEI

I have always believed that your first action in any role reveals your priorities.  This FCC’s first action was not about closing the digital divide or protecting network security.  No, its first move was to eliminate anything that even resembled Diversity, Equity, or Inclusion.

We’ve seen attempts to micromanage employment practices within private media companies, including threatening to impose heavy regulatory burdens on companies that require the FCC’s approval of their transactions.  These actions are not only wrong, but they also jeopardize economic growth in the name of ideological purity.

Perhaps more alarmingly, these steps have been disguised as an effort to protect the “public interest” and produce proof of “invidious” discrimination.  What this comes down to is that the FCC is asserting that fairness for all requires discrimination against some.  And that’s just not right. These are not good-faith regulatory efforts.  These are intimidation tactics meant to control who gets to speak. And they are antithetical to our core mission.

The Communications Act created the Federal Communications Commission for the purpose of [quote] ‘regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nationwide, and world-wide wire and radio communication service.’ [unquote]

Efforts from the private sector, to support diversity of voices in media, support the foundational mission of the FCC.

Agency Independence

And finally, in the vein of government control run amok, I want to talk about one more critical topic.  Here’s something I never thought I’d have to say in a speech: we must protect the independence of independent agencies.

The FCC is supposed to make decisions based on law, facts, and technical expertise—not politics.  We take our direction from the Constitution, the law, and the public.

That is what Congress intended.  When Congress considered the establishment of a Federal Radio Commission in the late 1920s, it considered the possibility of vesting the power in the Secretary of Commerce alone.  This idea, however, was struck down.   And it was struck down specifically because Congress feared that a single individual, subject to political will, would possess too much control over who could operate the cutting-edge communications technology of the time, radio.

Ultimately, after deliberation, Congress concluded that a multi-member Commission was the best choice.  As Commerce Secretary Herbert Hoover testified to Congress, “we cannot allow any single person or group to place themselves in a position where they can censor the material which shall be broadcast.”  The relationship between the power vested in the FCC and the duty to uphold First Amendment rights was unambiguous from the inception of the agency.

When Congress later amended the Federal Radio Commission to create the Federal Communications Commission, it once again chose to vest authority in a multi-member independent agency.  Congress’s message to us could not be clearer.  The FCC was designed to be an independent expert agency led by a multi-member, multi-party Commission.

While FCC Commissioners have had policy disagreements across the agency’s history, by and large we’ve understood the responsibility of ensuring that those on the “outside” looked to us as a stable, independent, expert-driven regulatory body.  Problematically, as we’ve seen at other independent agencies such as the Federal Trade Commission, the Consumer Product Safety Commission, and the Equal Employment Opportunity Commission, today, when minority Commissioners dissent, they are marginalized—or worse, fired.

It is vividly illustrative that even when this Administration holds so much power, it cannot tolerate disagreement or dissent.  And that is why it continues to chip away at First Amendment rights.

To address this issue, I have launched a First Amendment Tour to Challenge Government Censorship and Control.  In partnership with consumer and civil society organizations across the ideological spectrum, I am hosting and participating in speaking engagements and listening sessions focused on protecting the rights and freedoms enshrined in the First Amendment.

I refuse to stay quiet while the government weaponizes its regulatory tools to undermine the First Amendment. This is how I’m using my voice. I encourage you to use yours too.

And if I’m removed from my seat on the Commission, let it be said plainly: It wasn’t because I failed to do my job. It’s because I insisted on doing it.

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We’re nearing the end of our series of posts about the winners of this year’s public domain game jam, Gaming Like It’s 1929! We’ve already covered the Best Remix, Best Deep Cut, Best Visuals, Best Adaptation, and the honorable mentions, and this week we’re looking at the winner of Best Digital Game: Cocoanut Hotel by Geoffrey Golden & G.C. Katz.

1929 was the year the Marx Brothers made their film debut in The Cocoanuts, a movie where they ostensibly run a resort hotel but mostly just engage in their regular antics. Cocoanut Hotel adapts this career turning point for the famed comedians in both content and spirit, turning it into (what else?) a full-fledged hotel management sim. Just as in the original, the story (and now the mechanics) primarily serve as a vehicle for the comedy, resulting in a game that’s both fun to play and filled with entertaining material from start to finish.

As the player, you are tasked by your boss Mr. Hammer (a.k.a. Groucho) with getting the hotel to maximum capacity in 30 days. To achieve this, you must tweak the rate for rooms and your various expenses. You’re given little information on precisely what impact these choices will have, which turns the beginning of the game into an intriguing and often-surprising puzzle as you experiment with your options. Each day brings various events, whether that’s shady characters checking in because you don’t spend enough on security, not-so-clever con men raiding your savings, and of course, U.H.A. (Unexplainable Harpo Activity):

Ultimately the game isn’t too challenging, but it isn’t mindless: you need to engage with the mechanics and figure out how to win. It’s peppered with fun details, including a couple jokes about copyright, and above all it feels like a complete and quite polished product. For that, Cocoanut Hotel is this year’s Best Digital Game.

Congratulations to Geoffrey Golden & G.C. Katz for the win! You can play Cocoanut Hotel in your browser on Itch. We’ll be back next week with the last in our series of winner spotlights, and don’t forget to check out the many great entries that didn’t quite make the cut! And stay tuned for next year, when we’ll be back for Gaming Like It’s 1930.

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The festival of bad ideas continues. Despite facial recognition having proven over and over again it’s not really the solution to speedy ID verification that far too many people think it is, government agencies (along with retailers, sports arenas, and bored billionaires) seem to believe the real problem is that there just hasn’t been enough failure.

In 2021, facial recognition tech used by the DHS and its components scanned more than 23 million people. While the number of inputs was depressingly impressive, the end result of all this biometric gathering was merely disappointing:

The report indicates that the system caught no imposters traveling through airports last year and fewer than 100 new pedestrian imposters.

The CBP’s numbers were even worse. More than 50 million face scans between 2018 and 2021, with only a total of 292 imposters caught by the always-on surveillance.

Apparently, the problem is that there isn’t enough of the stuff that already proven itself mostly useless. As Caroline Haskins reports for Wired, the CBP is asking tech firms to whip up facial recognition tech capable of scanning every face in every car crossing the border.

CBP says that its facial recognition tool “is currently operating in the air, sea, and land pedestrian environments.” The agency’s goal is to bring it to “the land vehicle environment.” According to a page on CBP’s website updated last week, the agency is currently “testing” how to do so. The RIF says that these tests demonstrate that while this facial recognition tool has “improved,” it isn’t always able to get photos of every vehicle passenger, especially if they’re in the second or third row.

“Human behavior, multiple passenger vehicle rows, and environmental obstacles all present challenges unique to the vehicle environment,” the document says. CBP says it wants a private vendor to provide it with a tool that would “augment the passenger images” and “capture 100% of vehicle passengers.”

Obviously, this is hardly the ideal environment to produce usable facial recognition images. No matter where the cameras are placed, some passengers’ faces will be obscured in some way, whether it’s by shadows, other people/objects in the vehicle, or simply facing the “wrong” direction.

The thing is, the CBP already knows this isn’t a winning strategy. Haskins’ Wired article quotes the EFF’s Dave Maass, who obtained CBP documents detailing a trial run of this tech from 2021 to 2022. The results of this first deployment were far from impressive.

Maas said that what stood out to him was the error rates. Cameras at the Anzalduas border crossing at Mexico’s border with McAllen, Texas captured photos of everyone in the car just 76 percent of the time, and of those people, just 81 percent met the “validation requirements” for matching their face with their identification documents.

That’s an incredibly high failure rate for tech that was only asked to do “one-to-one” matching — that is, matching a person’s facial recognition scan to identification documents presented to border control officers. With these numbers, you’re better off just relying on the humans staffing border entries to make judgment calls on travel documents.

If this new system is expected to do more than this — like perform one-to-many matches — the error rate will be compounded exponentially. Even if the tech continues to improve, there’s actual life and liberty on the line here. Without rigorous guidelines and lots of human backstops, this tech will just make rights violations more efficient.

It’s not just those coming into the country who will be subjected to this, either. The DHS ultimately wants these camera facing both ways to better capture the faces of everyone in a vehicle leaving the country.

CBP exclusively tells WIRED, in response to an inquiry to the agency, that it plans to mirror the current program it’s developing—photographing every person entering the US and match their faces with their travel documents—to the outbound lanes going to Canada and Mexico. The agency currently does not have a system that monitors people leaving the country by vehicle.

“Although we are still working on how we would handle outbound vehicle lanes, we will ultimately expand to this area,” CBP spokesperson Jessica Turner tells WIRED.

So, even if you’re cool with south-facing cameras scanning every foreigner trying to enter the US, you’re going to have to accept the trade-off no one bothered asking your opinion about. You’re going to be subject to just as much always-on surveillance as people you think aren’t worthy of living in the United States. The Constitution-free zone has never been less free, and it’s only going to get worse, no matter who’s in the White House.

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Earlier this month we noted how Trump FCC boss Brendan Carr thinks he can have it both ways. Carr desperately wants to please dear leader, and be part of Trump’s mindless quest to dismantle most U.S. corporate oversight and regulatory independence. Yet at the same time he wants to bully companies for not being racist enough, or harass media giants that report candidly on Trump’s grotesque corruption.

Carr’s obviously not alone. Fellow Trump-selected FCC Commissioner Nathan Simington and his Chief of Staff Gavin Wax wrote an op-ed this week calling for whatever’s left of the FCC to be DOGE’d by Elon Musk and his cabal of tween authoritarian simpletons. As usual the goal is to demolish oversight of corporate power, but dress it up as some kind of serious, good faith efficiency reform:

“The FCC is a prime candidate for DOGE-style reform. From redundant enforcement structures to legacy programs that drain resources with little oversight, the Commission is entangled by outdated practices that burden consumers, broadcasters, and taxpayers alike.”

Among Simington and Wax’s “fixes” for the FCC are (further) gutting programs that help the poor, firing a bunch of FCC officials they deem redundant (namely those working on consumer protection), obliterating whatever’s left of media oversight and media consolidation limits, and shuffling some remaining staffers over to the country’s fledgling space agency.

But they also make it clear that one of their key goals here is to throw billions in new subsidies at their billionaire godking Elon Musk:

“Wired internet subsidies are increasingly unnecessary and cost-inefficient. The rise of satellite broadband, such as Starlink, and fixed wireless alternatives offer a more scalable, less expensive solution.”

This is part of a broader GOP effort to steal billions of taxpayer dollars included in the infrastructure bill that should be going to local, future-proof fiber and wireless solutions (including popular community-owned broadband networks), and instead give it to Elon Musk’s congested, expensive, ozone-layer killing Starlink satellite service. That’s not “populism” or “reform,” it’s just sleazy cronyism.

These are not serious people. They’re dressing up FCC corruption and mindless destruction as some sort of serious adult policymaking. Simington was never qualified for his role. Wax in particular is a radical right wing zealot with a long history of dodgy bedfellows (including white supremacists), who has less-than-zero qualifications to be making important choices about absolutely any of this.

They’re just mindlessly taking a hatchet to government based on vibes and ideological bullshit picked up during half-completed readings of Ayn Rand novels. At the same time, Carr wants everybody to believe his lobotomized FCC has the authority to bully companies into bending the knee to authoritarianism.

But they’re going to struggle to have their cake and eat it too.

As we’ve well documented, Trumpism is completely demolishing consumer protection and corporate oversight with the help of the Supreme Court and numerous problematic rulings by the Trump-heavy 5th and 6th Circuits. We’re genuinely talking about permanent, likely-irreversible harms to corporate oversight, consumer protection, public safety, and national security. Malformed, ignorant extremism.

So you’ve got this tension here between a generational, cross-industry corporatist quest to finally destroy the entirety of consumer protection and regulatory autonomy — and this weird smattering of far right wing authoritarian zealots who still think they can bully companies after their agencies have been lobotomized by the increasingly radical, right wing courts.

Neither option ends well for healthy markets or the public. There’s genuinely nobody left at these agencies who seriously cares about the public interest one way or the other. But if you had to make a wager on which side survives this legal standoff, you’d likely have to chose the one with the deeper bank accounts and better lawyers; the side not peppered with weird tween trolls with bad haircuts who get overheated because the most recent Star Wars movie had a few more black people than usual.

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Ctrl-Alt-Speech is a weekly podcast about the latest news in online speech, from Mike Masnick and Everything in Moderation‘s Ben Whitelaw.

Subscribe now on Apple Podcasts, Overcast, Spotify, Pocket Casts, YouTube, or your podcast app of choice — or go straight to the RSS feed.

In this week’s roundup of the latest news in online speech, content moderation and internet regulation, Mike is joined by guest host Cathy Gellis, an internet and First Amendment lawyer. Together, they cover:

The Copyright Office Issues A Largely Disappointing Report On AI Training, And Once Again A Major Fair Use Analysis Inexplicably Ignores The First Amendment (Techdirt)Trump fires Copyright Office director after report raises questions about AI training (TechCrunch)Elon Musk’s X caves to ‘censorship’ demand from India as tensions build with Pakistan (AFP)In the government’s war on ‘disinformation’, facts are collateral damage (The Hindu)Elon Musk’s Twitter: Indian government has asked us to block 8,000 accounts, however, we disagree as (Times of India)Elon Musk’s Grok AI Can’t Stop Talking About ‘White Genocide’ (Wired)White Afrikaner brought to US by Trump administration has history of antisemitic posts (The Guardian)U.S. says it is now monitoring immigrants’ social media for antisemitism (NPR)Kanye’s Nazi Song Is All Over Instagram (404 Media)Instagram and Facebook Blocked and Hid Abortion Pill Providers’ Posts (NY Times)Wikipedia fights the UK’s ‘flawed’ and ‘burdensome’ online safety rules (The Verge)What Attacks on Wikipedia Reveal about Free Expression (Tech Policy Press)Missouri AG Thinks Supreme Court Ruling Lets Him Control Social Media Moderation (It Doesn’t) (Techdirt)

This episode is brought to you with financial support from the Future of Online Trust & Safety Fund.

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For the last hundred years or so, the prevailing dogma has been that copyright is an unalloyed good, and that more of it is better. Whether that was ever true is one question, but it is certainly not the case since we entered the digital era, for reasons explained at length in Walled Culture the book (free digital versions available). Despite that fact, recent attempts to halt the constant expansion and strengthening of copyright have all foundered. Part of the problem is that there has never been a constituency with enough political clout to counter the huge power of the copyright industry and its lobbyists.

Until now. The latest iteration of artificial intelligence has captured the attention of politicians around the world. It seems that the latter can’t do enough to promote and support it, in the hope of deriving huge economic benefits, both directly, in the form of local AI companies worth trillions, and indirectly, through increased efficiency and improved services. That current favoured status has given AI leaders permission to start saying the unsayable: that copyright is an obstacle to progress, and should be reined in, or at least muzzled, in order to allow AI to reach its full potential. For example, here is what OpenAI’s proposals for the US AI Action Plan, which is currently being drawn up, say about copyright:

America’s robust, balanced intellectual property system has long been key to our global leadership on innovation. We propose a copyright strategy that would extend the system’s role into the Intelligence Age by protecting the rights and interests of content creators while also protecting America’s AI leadership and national security. The federal government can both secure Americans’ freedom to learn from AI, and avoid forfeiting our AI lead to the [People’s Republic of China] by preserving American AI models’ ability to learn from copyrighted material.

In its own suggestions for the AI Action Plan, Google spells out what this means:

Balanced copyright rules, such as fair use and text-and-data mining exceptions, have been critical to enabling AI systems to learn from prior knowledge and publicly available data, unlocking scientific and social advances. These exceptions allow for the use of copyrighted, publicly available material for AI training without significantly impacting rightsholders and avoid often highly unpredictable, imbalanced, and lengthy negotiations with data holders during model development or scientific experimentation. Balanced copyright laws that ensure access to publicly available scientific papers, for example, are essential for accelerating AI in science, particularly for applications that sift through scientific literature for insights or new hypotheses.

Although developments in the world of AI are giving companies like OpenAI and Google an opportunity to call into question the latest attempts to strengthen copyright’s intellectual monopoly, they are not the only voices here. For example, some of the biggest personalities in the tech world have gone even further, reported here by TechCrunch:

Jack Dorsey, co-founder of Twitter (now X) and Square (now Block), sparked a weekend’s worth of debate around intellectual property, patents, and copyright, with a characteristically terse post declaring, “delete all IP law.”

X’s current owner, Elon Musk, quickly replied, “I agree.”

It’s not clear what exactly brought these comments on, but they come at a time when AI companies, including OpenAI (which Musk co-founded, competes with, and is challenging in court), are facing numerous lawsuits alleging that they’ve violated copyright to train their models.

Unsurprisingly, that bold suggestion provoked howls of outrage from various players in the copyright world. That was to be expected. But the fact that big names like Musk and Dorsey were happy to cause such a storm is indicative of the changed atmosphere in the world of copyright and beyond. Indeed, there are signs that the other main intellectual monopolies – patents and trademarks – are also under pressure. Calling into question the old ways of doing things in these fields will also weaken the presumption that copyright must be preserved in its current state.

There’s another important way in which copyright is losing its relevance. It involves AI once more, but not because of how today’s AI systems are trained, but as a result of their output. The ease with which generative AI can turn out material has had a number of important knock-on consequences. For example, as a post on the Creative Bloq site explained:

Some designers who use stock image libraries to source photos, illustrations and vectors for their projects are finding that they have to wade through more unusable [AI-generated] content to find an image that suits their needs, adding more time to their workflows.

The same is happening in other fields. An article on the NPR site last year explored the growing problem of “AI-generated scam books”:

“Scam books on Amazon have been a problem for years,” says Mary Rasenberger, CEO of the Authors Guild, a group that advocates for writers. But she says the problem has multiplied in recent months. “Every new book seems to have some kind of companion book, some book that’s trying to steal sales.”

It’s also becoming a serious issue for music streaming services:

Deezer, the global music streaming platform, is receiving over 20,000 fully AI-generated tracks on a daily basis. It equals over 18% of all uploaded content, an increase from the previously reported 10% in January, 2025, when Deezer launched its cutting edge AI-music detection tool.

These AI-generated images, books and music tracks have one thing in common: they are probably not protected by copyright in any way. This is an evolving area of law, but a recent report by the US Copyright Office seems to confirm that material generated purely by AI, with minimal human input — for example, in the form of prompts — is not eligible for copyright protection:

Copyright law has long adapted to new technology and can enable case-by-case determinations as to whether AI-generated outputs reflect sufficient human contribution to warrant copyright protection. As described above, in many circumstances these outputs will be copyrightable in whole or in part—where AI is used as a tool, and where a human has been able to determine the expressive elements they contain. Prompts alone, however, at this stage are unlikely to satisfy those requirements.

Assuming this approach is confirmed both in the US and elsewhere, the net effect is likely to be that vast swathes of AI-generated text, images and sounds found online today are in the public domain, and can be used by anyone for any purpose. Once people understand this, and start using AI-generated outputs that they find online freely, without any fear of legal action being taken against them, there will be important knock-on effects. First, people may well seek out such AI-generated material, since it is legally unproblematic compared to complicated licensing schemes for copyright material, assuming the latter are even available. And secondly, people will as a result grow increasingly accustomed to re-using anything they find online, to the point that they simply ignore copyright niceties altogether.

Follow me @glynmoody on Mastodon and on Bluesky. Originally published at Walled Culture.

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You might recall that the first Trump DOJ and FCC cobbled together a dumb plan to cover up the problems created by their rubber stamping of the competition-eroding T-Mobile and Sprint merger: they’d help Dish Network create a new 5G network out of vibes and twine. As we noted back in 2019, the entire gambit was doomed to failure for a long list of reasons.

As we predicted it’s… none of this is going well. All of the problems critics of the T-Mobile and Sprint merger predicted (layoffs, price hikes, less competition, worse service) have come true. Meanwhile Dish has been bleeding satellite TV, wireless, and streaming TV subscribers for a while, and Dish’s new 5G network has generally been received as a sort of half-hearted joke.

So it’s important to keep in mind the first Trump administration created this whole dumb mess during Trump’s first term after his “antitrust enforcers” spent their personal free time helping these companies get bigger (which is not how “antitrust enforcement” is supposed to work, of course).

Now Trump FCC boss Brendan Carr says he’s launching a new “investigation” into the Dish 5G Network and Echostar (which recently acquired Dish). Carr, claims in a letter to Echostar Chairman Charlie Ergen, that he’s simply trying to “ensure that the companies we regulate comply with the terms oftheir federal spectrum licenses” and is meeting mandated FCC build out requirements:

“As you know, buildout obligations are one way that the FCC can ensure that Americans,including those living in rural communities, have a fair shot at next-generation connectivity.After all, failure to meet buildout obligations leaves these communities behind.”

But of course this is Brendan Carr — a guy who doesn’t actually believe in any sort of coherent oversight of corporate power. Unless it involves bullying companies for not being racist enough, or harassing media companies that engage in journalism critical of King Trump.

So why is Carr stepping in now? AT&T, Verizon, and Elon Musk all want the spectrum the Dish 5G network is using:

“Carr’s EchoStar investigation also reflects the long shadow that Musk casts over the US economy. Carr said he will look into “the scope and scale of MSS utilization in the 2GHz band that is currently licensed to EchoStar or its affiliates.” That’s the exact spectrum band that Musk’s SpaceX has signaled that it wants to take away from EchoStar for its own usage.”

If you’re say an ordinary person reading general news coverage of Carr’s “investigation,” you’ll never really get a real sense of how wildly corrupt this all is.

Again, the first administration created the Dish 5G network to create flimsy cover for the harmful consolidation caused by approving the Sprint T-Mobile merger. Now that that shitty deal is in the rear view mirror and everybody made their money, they want to strip the Dish 5G network for parts and force a sale Ergen’s valuable spectrum holdings to Elon Musk. Or AT&T and Verizon. Whoever has the best lawyers.

Carr is pretending to engage in serious adult policymaking, when they’re really just trying to offload valuable spectrum to Trump’s rich buddies. If you squint real hard it kind of looks like a real government doing serious policy (and outlets like the Wall Street Journal will certainly portray it as such), but in reality it’s a corrupt, ever-evolving joke.

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Missouri Attorney General Andrew Bailey apparently thinks he gets to be editor-in-chief of every social media platform. In his latest attack on free speech rights, Bailey has announced a “first-in-the-nation rule” that would force social media companies to let users choose third-party content moderators rather than using the platforms’ own moderation systems.

There’s just one tiny problem: this completely ignores what the Supreme Court explicitly said about government control of content moderation just months ago in Moody v. NetChoice. Even crazier, Bailey claims that his new rule is based on the ruling in Moody.

As a reminder, the Supreme Court’s ruling in last year’s Moody v. NetChoice case, the Justices made it quite clear that the First Amendment protects social media content moderation decisions, and that the state has no business telling companies how to moderate. Justice Kagan, in the majority opinion, signed onto by Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett, made it clear that what social media companies do in content moderation is quintessential protected First Amendment activity no different than editors of a newspaper choosing what to publish:

To the extent that social media platforms create expressive products, they receive the First Amendment’s protection. And although these cases are here in a preliminary posture, the current record suggests that some platforms, in at least some functions, are indeed engaged in expression. In constructing certain feeds, those platforms make choices about what third-party speech to display and how to display it. They include and exclude, organize and prioritize—and in making millions of those decisions each day, produce their own distinctive compilations of expression. And while much about social media is new, the essence of that project is something this Court has seen before*. Traditional publishers and editors also select and shape other parties’ expression into their own curated speech products. And we have repeatedly held that laws curtailing their editorial choices must meet the First Amendment’s requirements. The principle does not change because the curated compilation has gone from the physical to the virtual world. In the latter, as in the former,* government efforts to alter an edited compilation of third-party expression are subject to judicial review for compliance with the First Amendment*.*

In short, content moderation is protected by the First Amendment, and states are not able to simply ignore that. Indeed, the ruling had even more explicit words for the Fifth Circuit, which had ruled earlier (in an absolutely nutty ruling) that states could easily pass laws that told websites how to moderate. The Supreme Court made it clear that such a claim was utter nonsense:

But it is necessary to say more about how the First Amendment relates to the laws’ content-moderation provisions, to ensure that the facial analysis proceeds on the right path in the courts below. That need is especially stark for the Fifth Circuit*. Recall that it held that the content choices the major platforms make for their main feeds are “not speech” at all, so States may regulate them free of the First Amendment’s restraints. 49 F. 4th, at 494; see supra, at 8. And even if those activities were expressive, the court held, Texas’s interest in better balancing the marketplace of ideas would satisfy First Amendment scrutiny. See 49 F. 4th, at 482.* If we said nothing about those views, the court presumably would repeat them when it next considers NetChoice’s challenge. It would thus find that significant applications of the Texas law—and so significant inputs into the appropriate facial analysis—raise no First Amendment difficulties. But that conclusion would rest on a serious misunderstanding of First Amendment precedent and principle. The Fifth Circuit was wrong in concluding that Texas’s restrictions on the platforms’ selection, ordering, and labeling of third-party posts do not interfere with expression*. And the court was wrong to treat as valid Texas’s interest in changing the content of the platforms’ feeds. Explaining why that is so will prevent the Fifth Circuit from repeating its errors as to Facebook’s and YouTube’s main feeds. (And our analysis of Texas’s law may also aid the Eleventh Circuit, which saw the First Amendment issues much as we do, when next considering NetChoice’s facial challenge.) But a caveat: Nothing said here addresses any of the laws’ other applications, which may or may not share the First Amendment problems described below*

Indeed, the Supreme Court said that the Fifth Circuit’s attempt to block social media companies from moderating in a particular way directly would violate the First Amendment:

Contrary to what the Fifth Circuit thought, the current record indicates that the Texas law does regulate speech when applied in the way the parties focused on below—when applied, that is, to prevent Facebook (or YouTube) from using its content-moderation standards to remove, alter, organize, prioritize, or disclaim posts in its News Feed (or homepage). The law then prevents exactly the kind of editorial judgments this Court has previously held to receive First Amendment protection*. It prevents a platform from compiling the third-party speech it wants in the way it wants, and thus from offering the expressive product that most reflects its own views and priorities. Still more,* the law—again, in that specific application—is unlikely to withstand First Amendment scrutiny*. Texas has thus far justified the law as necessary to balance the mix of speech on Facebook’s News Feed and similar platforms; and the record reflects that Texas officials passed it because they thought those feeds skewed against politically conservative voices. But this Court has many times held, in many contexts, that* it is no job for government to decide what counts as the right balance of private expression—to “un-bias” what it thinks biased, rather than to leave such judgments to speakers and their audiences. That principle works for social-media platforms as it does for others.

So, you’d have to be pretty fucking bad at reading to think that this case somehow blesses the idea that the government can decide how social media companies can moderate.

Enter Missouri Attorney General Andrew Bailey. Bailey is no stranger to attacking the free speech rights of those he disagrees with.

Last week, Bailey announced a new rule, based on his reading of the Moody decision, that would effectively make him Missouri’s Chief Content Moderation Officer. Under the guise of “protecting free speech,” Bailey is attempting to use Missouri’s consumer protection laws to force social media companies to let users bypass their moderation systems entirely:

Missouri Attorney General Andrew Bailey today announced the filing of a first-in-the-nation rule under the Missouri Merchandising Practices Act that targets corporate censorship and secures freedom of expression for social media users. The rule requires Big Tech platforms to allow Missouri users to choose their own content moderators rather than being forced to rely on the biased algorithms of monopolistic tech giants.

“Big Tech oligarchs have manipulated the content Missourians see online and silenced voices they don’t like. That ends now,” said Attorney General Bailey. “With this rule, Missouri becomes the first state in America to take real, enforceable action against corporate censorship. I’m using every tool to ensure Missourians—not Silicon Valley—control what they see on social media.”

The rule—codified as 15 CSR 60-19—clarifies that it is an unfair, deceptive, or otherwise unlawful practice for social media platforms to deny users the ability to choose an independent content moderator. Platforms must now provide a choice screen upon account activation and at regular intervals, must not favor their own moderation tools, and must allow full interoperability for outside moderators chosen by users.

If this sounds familiar, it should. It’s exactly the kind of government interference in content moderation that the Supreme Court just said states can’t do.

Here’s the truly ironic part: third-party content moderation is actually a great idea. I should know — I wrote a pretty well-known paper advocating for exactly that approach, and I now serve on the board of Bluesky, currently the only major social platform embracing this model.

But there’s a world of difference between believing companies should adopt better moderation practices and claiming they’re breaking the law by not doing so. Bailey’s attempt to force this change through government mandate is not just legally backwards — it’s exactly the kind of state interference in editorial decisions that the First Amendment was designed to prevent.

Bailey’s claim that Moody somehow supports his position is particularly brazen. He specifically cites the Court’s mention of “competition laws” as justification:

This regulation is grounded in the Supreme Court’s guidance from Moody v. NetChoice, which recognized the authority of state governments to enforce competition laws in the interest of free expression.

But Bailey either didn’t read or deliberately ignored the actual context. The Court only mentioned competition laws to explicitly contrast them with content moderation mandates. Here’s what they actually said:

… the government cannot get its way just by asserting an interest in improving, or better balancing, the marketplace of ideas*. Of course, it is critically important to have a well-functioning sphere of expression, in which citizens have access to information from many sources. That is the whole project of the First Amendment.* And the government can take varied measures, like enforcing competition laws, to protect that access. Cf., e.g., Turner I, 512 U. S., at 647 (protecting local broadcasting); Hurley, 515 U. S., at 577 (discussing Turner I ). But in case after case, the Court has barred the government from forcing a private speaker to present views it wished to spurn in order to rejigger the expressive realm. The regulations in Tornillo, PG&E, and Hurley all were thought to promote greater diversity of expression. See supra, at 14–16. They also were thought to counteract advantages some private parties possessed in controlling “enviable vehicle[s]” for speech. Hurley, 515 U. S., at 577. Indeed, the Tornillo Court devoted six pages of its opinion to recounting a critique of the thencurrent media environment—in particular, the disproportionate “influen[ce]” of a few speakers—similar to one heard today (except about different entities). 418 U. S., at 249; see id., at 248–254; supra, at 14–15. It made no difference. However imperfect the private marketplace of ideas, here was a worse proposal—the government itself deciding when speech was imbalanced, and then coercing speakers to provide more of some views or less of others.

The Court couldn’t be more clear: while states can enforce genuine competition laws, they absolutely cannot use that power as a backdoor to control content moderation decisions. They even added a footnote specifically addressing attempts to twist competition law precedent (like Turner, which conservatives have long despised) to justify content moderation mandates:

Texas claims Turner as a counter-example, but that decision offers no help to speak of. Turner did indeed hold that the FCC’s must-carry provisions, requiring cable operators to give some of their channel space to local broadcast stations, passed First Amendment muster. See supra, at 15. But the interest there advanced was not to balance expressive content; rather, the interest was to save the local-broadcast industry, so that it could continue to serve households without cable. That interest, the Court explained, was “unrelated to the content of expression” disseminated by either cable or broadcast speakers. Turner I, 512 U. S. 622, 647 (1994). And later, the Hurley Court again noted the difference. It understood the Government interest in Turner as one relating to competition policy: The FCC needed to limit the cable operators’ “monopolistic,” gatekeeping position “in order to allow for the survival of broadcasters.” 515 U. S., at 577. Unlike in regulating the parade—or here in regulating Facebook’s News Feed or YouTube’s homepage—the Government’s interest was “not the alteration of speech.” Ibid. And when that is so, the prospects of permissible regulation are entirely different.

So either Missouri AG Andrew Bailey cannot read a basic Supreme Court decision, or he assumes no one else can.

Perhaps the most telling irony in all of this? If Bailey succeeds, his rule would force his good friend Elon Musk — for whom Bailey has enthusiastically conducted censorial investigations designed to chill speech — to allow third-party moderation on ExTwitter. Something tells me neither Bailey nor Musk have thought through the implications of trying to become Missouri’s content moderation czar.

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Maybe Clearview got it all wrong. Scraping the web for tens of billions of records for free sounds like a good business model, but that model only works if you can keep the malodorous funk of your work from soaking into your reputation. Clearview’s tactics have gotten it banned, fined, and sued and it doesn’t seem that its multitudinous contracts with government agencies will keep it in the black for years to come.

Other companies dealing in what used to be cop tech (that was war tech before it was cop tech) are making in-roads with private citizens before asking cops to come along for the ride. Since the early adopters are homeowners associations and gated communities, it’s only natural that these public-private partnerships have developed because law enforcement has historically been more inclined to protect the white and rich, leaving everyone else to fend for themselves.

But this is a new twist: here’s a government agency seeking to leverage its stash of photos to obtain questionable tech for free.

Milwaukee police are mulling a trade: 2.5 million mugshots for free use of facial recognition technology.

Officials from the Milwaukee Police Department say swapping the photos with the software firm Biometrica will lead to quicker arrests and solving of crimes. But that benefit is unpersuasive for those who say the trade is startling, due to the concerns of the surveillance of city residents and possible federal agency access.

“We recognize the very delicate balance between advancement in technology and ensuring we as a department do not violate the rights of all of those in this diverse community,” Milwaukee Police Chief of Staff Heather Hough said during an April 17 meeting.

This is a really strange trade. Mugshots have generally been considered to be public domain, accessible even without the hassle of public records requests. While it’s obviously more convenient for Biometrica to get all of these at one time, it never really needed the MPD’s help to add these photos to its facial recognition database.

Chief Hough’s statement doesn’t really help. While Hough isn’t her predecessors, the PD already has a history of being dishonest about its surveillance tech acquisitions. And if her department were truly interested in respecting the rights of a diverse community, it would have disbanded. Show me a cop shop that respects rights regularly and I’ll show you my Blue Bloods fanfic.

To be completely fair, no such deal has taken place yet. And the PD is actually presenting it to the public for comment before moving forward. However, no promises have been made, which means the PD might do this anyway, even if most commenters are against it.

And its assurances that it really desires input from the public are undercut by the fact that it’s already using facial recognition tech, albeit one it’s paying for, rather than the one it can get for free by feeding faces to Biometrica’s database.

At the meeting, officials shared how the technology had been used in recent cases — a homicide and a sexual assault — to assist in identifying suspects. In both cases, police ran photos of men ultimately charged in the crimes through facial recognition technology to help identify them. Those identifications were then confirmed during the investigation, police said.

So, what do 2.5 million mugshots (and their accompanying arrest records) buy you in the facial recognition market? Not a lot, it turns out. Biometrica will give the PD two free search licenses. If the PD wants more, the price is $12,000 per license after that.

Even if the little people end up not mattering, at least voices with some power are expressing their concerns. One Fire and Police commissioner, Krissie Fung, said she was “unconvinced” this trade was necessary and that city residents should have the final say.

Another commissioner has already been a victim of the tech’s innate fallibility, which is the result of bias present in the inputs, as well as the bias of those making decisions based on search results.

During the April 17 meeting, Fire and Police commissioner Ramon Evans said he had been subject to bias by facial recognition while at Potawatomi Casino.

“I got called over and I wasn’t the guy,” he said. “I was a victim of error.”

The government should not be trading public records for discounts on surveillance tech. If the PD truly has a need for this, it should be able to demonstrate that with enough clarity that it would have no problem securing the funding. This looks like nothing more than the PD trying to do something just because it can, rather than because it actually thinks the tech will be a net gain for the city and its residents. For that reason alone, this proposal should be rejected. And the city government should take steps going forward to ensure agencies can’t use forcibly obtained data to horse-trade for private sector goods.

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We’ve well documented by now how the AT&T->Warner Brothers->Discovery series of mergers were among some of the most destructive and pointless “business deals” ever conceived by modern man.

The mergers resulted in bottomless layoffs, the closure of numerous valuable and popular brands and shows, and much worse product as incompetent, fail-upward executives shifted the company’s focus away from quality programming toward lowest-common-denominator engagement slop. It also resulted in constant name changes that, at several points, even confused the company’s own employees.

Part of that effort, you might recall, included (mostly) sidelining the HBO brand, which guys like Warner Brothers Discovery CEO David Zaslav said reflected an evolution in the company’s thinking. Executives believed that the “the HBO name turns off many potential subscribers,” so they renamed their streaming service “Max” in the belief this would give them a fresh branding start.

While “HBO” as a studio still technically still exists and every so often produces good stuff in spite of itself, “Max” has generally trafficked in lower quality content since inception, resulting in a lot of people cancelling their streaming subscriptions — especially given the constant price hikes and overall enshittification.

Now Warner Bros Discovery executives have decided to bring the HBO brand back again. Modern media outlets like Axios are incapable of candidly explaining how stupid this whole trajectory has been, instead offering this explanation:

“Highlighting the HBO branding sends a signal to consumers that the streaming service will lean into high-quality programming, instead of focusing mostly on its breadth of shows.”

The real signal being sent is that America’s highest paid media executives have absolutely no fucking idea what they’re doing.

Again, they insisted that this was the exact wrong path just a few years ago. They previously (falsely) believed the HBO brand “turned off” the public and openly and repeatedly stated that focusing on quantity instead of quality would change everything. That resulted in the Max lineup being inundated with just a bottomless array of reality TV dreck with names like “Fuckboy Island.”

At the same time, a ton of quality programming and brands (from Mad Magazine to Sesame Street!) got sidelined, while many remaining brands (see: CNN) just got worse and worse.

The trajectory of this clown show has been immeasurably entertaining in all the wrong ways. And the king of the whole effort, Zaslav, continues to be slathered with outsized compensation despite zero indication that anybody in a position of leadership at this company has any idea what they’re doing.

Zaslav, like most media execs at major media companies, is all out of any sort of original ideas. The kind of stuff that truly pleases customers (low prices, higher quality, improved customer support, better feature sets) costs money and erodes quarterly earnings and the goal of impossible growth.

So instead these executives have embraced a purely extractive “growth for growth’s sake” mindset in which they pursue purposeless consolidation whose only function is to temporarily goose stock valuations, provide big tax cuts, and flimsily justify outsized compensation for fail-upward brunchlord media executives who fancy themselves savvy dealmakers.

And there’s been an entire generation of this, if you extend your view back to the original, equally disastrous AOL deal back in 2001.

Zaslav has stated repeatedly that he sees Trump 2.0 as an opportunity for more harmful media consolidation, which will only continue to make the underlying products worse. Wash, rinse, repeat, with absolutely nobody learning anything from the experience thanks to all manner of perverse financial incentives that have nothing to do with building real value or making your customers happy.

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Though we haven’t discussed the lawsuit between Palword creator PocketPair and Nintendo and The Pokémon Co. so far this year, this turd of a suit is still going on. To the uninitiated, Palworld has long been described as “Pokémon with guns”. Due to that, lots of folks thought that PocketPair would eventually get sued by Nintendo and/or The Pokémon Co. for copyright infringement, while we argued the exact opposite, which is that this is the perfect idea/expression dichotomy example. A suit eventually was filed against PocketPair, but it was for a series of patents that are jointly owned by both Nintendo and The Pokémon Co., and were divisional patents filed after the release of Palworld, and appear to cover broad gameplay mechanics rather than a specific inventive mechanism in any sort of detail. Add to all of that that it was quite easy to find examples of prior art for those broad gameplay mechanics and it’s at least mildly surprising that any of this is still going on.

But the plaintiffs in this suit are very large entities compared with PocketPair, so it wasn’t entirely surprising to see the disappointing news that the latter began removing some of the supposedly offending content last year, starting with removing the “Pal Sphere” used to catch Palworld monsters via a patch. And now we’re learning that, even as PocketPair is seeking to have the patents in question invalidated (as they should!), it is removing via patch yet another Palworld gameplay feature to try to protect itself.

Writing on social media platform X earlier today, Pocketpair expressed its disappointment that such actions were required back then, before stating it was now having to make “yet another compromise” due to the lawsuit.

This ‘compromise’ arrives with Patch v0.5.5. “From this patch onward, gliding will be performed using a glider rather than with Pals,” the Palworld team wrote. “Pals in the player’s team will still provide passive buffs to gliding, but players will now need to have a glider in their inventory in order to glide.”

Pocketpair said it disputes the claims made against it, and still “[asserts] the invalidity of the patents in question”.

One of the divisional patents in question did indeed have to do with how the player travels an open world using an NPC game character, so I am assuming that’s what is going on here. But the real mild travesty in all of this is that PocketPair is busily changing how its game plays for customers that already paid money for the game purely because Nintendo and The Pokémon Co. are throwing around a couple of what sure look to me like bullshit patents.

Which is the larger point to be made here. It’s very clear these two companies are simply attempting to obstruct what they see as a direct competitor using these patents and patent law, because they know that any attempt at a copyright lawsuit would be doomed to failure.

In other words, it isn’t violations of their IP that Nintendo and The Pokémon Co. don’t like; it’s the competition.

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The federal government is using social media surveillance to target student visa holders living in the United States for online speech the Trump administration disfavors. The administration has initiated this new program, called “Catch and Revoke,” in an effort to revoke visas, and it appears to be a cross-agency collaboration between the State Department, the Department of Homeland Security (DHS), and the Department of Justice. It includes a dedicated task force and the use of AI and other data analytic tools to review the public social media accounts of tens of thousands of student visa holders. Though the full scope remains unclear, current reports indicate that the administration is surveilling for “pro-Hamas” sentiment, “antisemitic activity,” or even just “conduct that bears a hostile attitude toward U.S. citizens or U.S. culture.” At the time of publishing of this blog post, the federal government has already revoked over 1600 student visas for a variety of reasons.

This social media surveillance program is an alarming attack on freedom of speech and privacy—for both visa holders here in the United States and their American associates.

A Dangerous Erosion of Free Speech

While there is some nuance in the interplay between freedom of speech and immigration law, one principle is evident: foreign nationals who currently reside in the U.S.—including student visa holders—are protected by the First Amendment. The Supreme Court stated in Bridges v. Wixon (1945) that “[f]reedom of speech and of press is accorded aliens residing in this country.”

First Amendment-Protected Political Speech

Revoking student visas based, in part, on what students have said publicly on social media is especially constitutionally problematic given that the Trump administration is targeting core First Amendment-protected political speech. As the Supreme Court stated in Mills v. Alabama (1966), a central purpose of the First Amendment is to “protect the free discussion of governmental affairs,” whether on political issues, public officials, or how the government should operate.

The administration is targeting non-citizen students for “pro-Hamas,” antisemitic, and even just pro-Palestinian speech. Yet what falls under these categories is vague and not clearly defined. For example, the administration detained a Georgetown University researcher due to social media posts that are critical of Israel, but do not express support for Hamas.

More importantly, even controversial or offensive speech falls within the protections of the First Amendment. There are several categories of speech that do not enjoy First Amendment protection, including true threats of violence, inciting imminent violence, and providing material support for terrorism. However, short of rising to that level, the student speech targeted by the administration is protected by the First Amendment. Worse still, the administration is broadly going after students who simply appear to be “social activists” or are engaged in speech that is generically “anti-American.”

Such an overbroad social media surveillance and visa revocation program—one that sweeps in wholly lawful speech—strikes at the heart of what the First Amendment was intended to protect against.

Chilling Effect

Social media surveillance motivated by the government’s desire to punish political speech will chill (and certainly has already chilled) student visa holders from speaking out online.

The Supreme Court stated in Lamont v. Postmaster General (1965) that a government policy that causes individuals “to feel some inhibition” in freely expressing themselves “is at war with the ‘uninhibited, robust, and wide-open’ debate and discussion that are contemplated by the First Amendment.” More recently, Supreme Court Justice Sotomayor expressed in a concurring opinion that “[a]wareness that the Government may be watching chills associational and expressive freedoms” guaranteed by the First Amendment.

In other words, student visa holders are more likely to engage in self-censorship and refrain from expressing dissenting or controversial political views when they know they’re being surveilled. Or they may choose to disengage from social media entirely, to avoid the risk that even seemingly harmless posts will affect their visa status and their ability to continue their education in the United States.

Student visa holders may also limit whom they connect with on social media, particularly if they fear those connections will have political views the current administration doesn’t like. The administration has not expressly stated that it will limit its surveillance only to the social media posts of student visa holders, which means it may also look at posts made by those in the students’ networks. This, too, undermines the First Amendment. The freedom to associate and express political views as a group—“particularly controversial ones”—is a fundamental aspect of freedom of speech, as the Supreme Court stated in its landmark NAACP v. Alabama (1958) decision.

American Citizens Impacted

Because student visa holders’ social networks undoubtedly include U.S. citizens, those citizens may also be subject to social media scrutiny, and therefore will also be chilled from freely speaking or associating online. Government agents have previously held visa holders responsible for the activity of their social media connections. Knowing this, a U.S. citizen who has a non-citizen friend or family member in the U.S. on a student visa might hesitate to post criticisms of the government—even if fully protected by the First Amendment—fearing the posts could negatively impact their loved one. A general climate of government surveillance may also lead U.S. citizens to self-censor on social media, even without any foreign national friends or family.

A Threat to Digital Privacy

Social media surveillance, even of publicly available profiles and especially with automated tools, can invade personal privacy. The Supreme Court has repeatedly held that the government’s collection and aggregation of publicly available personal information—particularly when enhanced by technology—can implicate privacy interests. The government can obtain personal information it otherwise would not have access to or that would usually be difficult to find across disparate locations.

Social media aggregates personal information in one place, including some of the most intimate details of our lives, such as our health information, likes and dislikes, political views and religious beliefs, and people with whom we associate. And automated tools can easily search for and help find this information. Even people who choose not to post much personal information on social media might still be exposed by comments and tags made by other users.

Constitutional Harms are Exacerbated by Automated Tools

The Trump administration is reportedly deploying artificial intelligence and other automated tools to assist in its review of student visa holders’ social media posts. While facts are still coming to light, any form of automation is likely to amplify speech and privacy harms to student visa holders.

By the government’s own assessment in another context—evaluating the admissibility of visa applicants (discussed below)—social media surveillance has not proven effective at assessing security threats.

Human review of public social media posts is itself prone to problems. Social media posts are highly context-specific, and government officials often have trouble differentiating between sarcasm, parody, and exaggeration from unlawful support for controversial causes. This leads to mistakes and misinterpretations. For example, in 2012 an Irish citizen was turned back at the border because DHS agents misinterpreted two of his Twitter posts: one, that he was going to “destroy America” – slang for partying – and two, that he was going to “dig up Marilyn Monroe’s grave” – a joke. These mistakes are even more likely when the posts are not in Englishor when they contain cultural references.

Human review augmented by automated tools is just as bad. Automated tools also have difficulty understanding the nuances of language, as well as the broader context in which a statement was made. These algorithms are also designed to replicate patterns in existing datasets, but if the data is biased, the technology simply reinforces those biases. As such, automated tools are similarly prone to mistakes and misinterpretations. Yet people often defer to automated outputs thinking they are correct or fair simply because a computer was used to produce them. And in some cases, decision-makers may even use these tools to justify or cover their own biases.

Most concerning would be if automated systems were permitted to make final visa revocation decisions without any human review. As EFF has repeatedly stated, automated tools should never get the final say on whether a person should be policed, arrested, denied freedom, or, in this case, stripped of a student visa and forcibly barred from completing their education.

Government Social Media Surveillance is Not New—and is Expanding

That the Trump administration is using social media surveillance on student visa holders residing in the United States is a disturbing apparent escalation of a longstanding trend.

EFF has long sounded the alarm on the civil liberty harms of government social media surveillance. In particular, since 2019, visa applicants have been required to disclose all social media accounts they have used in the last five years to the U.S. government. That policy is the subject of an ongoing lawsuit, Doc Society v. Pompeo, in which EFF filed an amicus brief.

Secretary of State Marco Rubio recently upped the ante by ordering officials to deny visas to new or returning student applicants if their social media broadly demonstrates “a hostile attitude toward U.S. citizens or U.S. culture (including government, institutions, or founding principles).” Notably, Rubio indicated this standard could also apply to current student visa holders. The State Department also announced it will review the social media of any visa applicant who has been to Gaza since 2007.

The Trump administration has also proposed dramatically expanding social media scrutiny by requiring non-citizens already legally residing in the U.S. to disclose social media accounts on a variety of forms related to immigration benefits, such as people seeking lawful permanent residency or naturalization. U.S. Citizenship and Immigration Services (USCIS), a component of DHS, also announced it would look for “antisemitic activity” on social media to deny immigration benefits to individuals currently in the country.

Protecting Your Accounts

There are general steps you can take to better protect your social media accounts from surveillance. Understand, however, that the landscape is shifting rapidly and not all protections are foolproof. Law enforcement may be able to get a warrant for your private information and messages if a judge is convinced there is preliminary evidence supporting probable cause of criminal activity. And non-governmental individuals and groups have recently used other forms of technology like face recognition to identify and report student activists for potential deportation. You should conduct your own individualized risk assessment to determine what online activity is safe for you.

Still, it never hurts to better secure your online privacy. For your current social media accounts, consider locking them down:

Make public accounts private and ensure only approved connections can see your content. Note that if your past public posts have already been copied and saved by an outside party, making your account private will not undo this. It will, however, better protect your future posts.Some platforms make certain information publicly viewable, even if you’ve made your account private. Other information may be public by default, but can be made private. Review each platform’s privacy settings to limit what information is shared publicly, including friend lists, contact information, and location information.You should also review your friends or followers list to ensure you know every person you’ve approved, especially when making a once-public account private.

If you create a new social media account:

Query whether you want to attach your legal name to it. Many platforms allow you to have a pseudonymous account.When setting up the account, don’t provide more personal information than is necessary.

EFF’s Surveillance Self-Defense guide provides additional information on protecting your social media accounts from a variety of actors. If you’re not sure what information is publicly available about you on social networks or other sites, consider doing some research to see what, if anything, others would find.

By targeting international students for broad categories of online speech, this administration is fostering a climate of fear, making students anxious that a single post or errant “like” could cost them their U.S. visa or even lead to detention and deportation. This will, ultimately, stifle political debate and silence dissent–for non-citizens and citizens alike–undermining the open dialogue crucial to democracy.

Originally published to the EFF’s Deeplinks blog.

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Behind effective accelerationism’s techno-optimist smile lies a familiar and dangerous impulse: subordinating human dignity to a technological imperative framed as inevitable.

The effective accelerationism movement (e/acc) presents itself as an enlightened embrace of technological progress, especially artificial general intelligence. Led by figures like Guillaume Verdon and embraced by venture capitalists like Marc Andreessen, the movement claims humanity faces a binary choice: “accelerate or die.” Those who question this narrative are dismissed as “decels” or “doomers” standing in the way of humanity’s cosmic destiny.

Nowhere is this authoritarian impulse more clearly articulated than in Andreessen’s “Techno-Optimist Manifesto”—a document that warrants direct examination. Strip away its futuristic veneer, and what remains is essentially 21st century fascism in digital clothing.

Consider the manifesto’s central claims. It flatly rejects the legitimacy of democratic regulation over technology: “We believe markets—free people making free choices—are the proper determinant of which technologies are created and deployed.” It declares technology the solution to all problems while dismissing concerns about inequality, sustainability, or governance as wrongheaded: “We oppose the philosophy of the unproductive ‘steady state.’“ Most tellingly, it explicitly rejects democratic oversight: “We are pro-civilization and thus we are focused on the private sector,” as if civilization itself is incompatible with public governance.

This isn’t mere enthusiasm for innovation; it’s a comprehensive political ideology that seeks to replace democratic deliberation with technological determinism and market fundamentalism. The manifesto’s vision is fundamentally feudal: a world where tech oligarchs determine humanity’s course, unencumbered by democratic institutions or public accountability. This isn’t optimism—it’s authoritarianism with a Silicon Valley gloss.

Andreessen positions himself as a philosopher-king of technological progress while demonstrating remarkable blindness to his own limitations. His breathless championing of Web3 and crypto as civilization’s inevitable future now looks more like hubris than vision as those markets have cratered. Though his venture firm, a16z, managed to unload much of its token holdings onto retail investors before the crash—a practice any reasonable person would find ethically troubling. This pattern of privatizing gains while socializing losses perfectly illustrates the movement’s underlying philosophy: technological “inevitability” for the masses, insider protection for the elite.

What makes e/acc dangerous isn’t enthusiasm for technology but its underlying technological determinism—the belief that innovation follows a predetermined path humans must accept rather than direct. This deterministic view treats human agency as largely irrelevant, serious debate as futile, and skepticism as dangerous heresy. We’ve seen this pattern before in other deterministic ideologies, from Marxist historical inevitability to market fundamentalism’s “invisible hand.” Marxism once declared proletarian revolution inevitable, sidelining debate about the means. Free-market fundamentalism claimed deregulation was destiny, ignoring warnings of catastrophic risk. Both left profound damage in their wake.

Technological determinism doesn’t just silence debate—it quietly erases the belief that humans have meaningful agency in shaping their future.

The movement’s practice of labeling critics as “decels” reveals its epistemic authoritarianism—a system where questioning the accelerationist narrative becomes not just incorrect but morally suspect. This approach inherently limits pluralistic debate, silences valid ethical concerns, and frames caution as weakness rather than wisdom. When questioning technological development is framed as opposition to progress itself—as an obstacle rather than necessary caution—we’ve crossed from debate into epistemic authoritarianism.

This authoritarian impulse isn’t accidental but essential to the movement’s character. Its leading voices consistently present themselves not as participants in democratic deliberation but as visionaries whose insight transcends normal political constraints. There’s something fundamentally fascistic in this self-conception—the belief that technological “greatness” requires bypassing democratic processes and dismissing public concerns as ignorance.

Let’s be very clear about what this is: a fascist disposition wrapped in techno-futurism. The historical parallels are too striking to ignore. Like 20th century fascism, it glorifies speed and power over deliberation and equity. It frames democratic oversight as weakness and celebrates the will of technological “pioneers” over collective wisdom. It positions a self-selected elite as the arbiters of humanity’s future while dismissing those who disagree as obstacles to progress. If this isn’t fascism in contemporary form, what would be?

Perhaps most troubling is e/acc‘s cynicism about human dignity. By explicitly subordinating traditional ethical values to technological imperatives and cosmic entropy maximization, the movement creates a moral calculus indifferent or even hostile to individual and collective human flourishing. When technology becomes an end in itself rather than a means to human ends, we risk a profound moral impoverishment—technological nihilism wearing the mask of cosmic purpose.

If we reject technological authoritarianism, the alternative isn’t Luddism—it’s philosophical liberalism, with its firm commitment to pluralism, human dignity, and epistemic humility. Liberal democracy isn’t anti-technology—it insists only that technological development must remain subject to democratic accountability, ethical oversight, and meaningful consent. Liberalism sees technological progress not as inevitable, but as an ongoing human choice. Liberal democracy exists not to maximize entropy or technological development for its own sake, but to safeguard conditions for diverse human flourishing.

What’s actually at stake in this debate isn’t just the pace of innovation but whether humans meaningfully shape their own future. E/acc‘s seductive simplicity—its promise that surrendering to technological inevitability will solve humanity’s problems—can slide quickly into authoritarian governance justified by “inevitable” technological imperatives. We’re already seeing these dynamics at work in real-world contexts, as when the Trump administration uses tariffs as leverage to force countries to accept Elon Musk’s Starlink—a fusion of technological and political power that bypasses democratic accountability.

The center must be held against this technological determinism. Two plus two equals four means we must always insist on seeing reality clearly, not through the distorting lens of inevitability narratives that conveniently serve those already in power. Human dignity and democratic legitimacy aren’t obstacles to technological advancement—they’re its moral foundation. Without them, technology inevitably becomes not a force for liberation, but merely another form of authoritarian control—no matter how brightly it smiles.

Mike Brock is a former tech exec who was on the leadership team at Block. Originally published at his Notes From the Circus.

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The Trump administration is methodically implementing every element of Heritage Foundation’s Project 2025 censorship playbook, and Democratic leadership’s response is… to help them? Earlier today, Chuck Schumer and Richard Blumenthal joined MAGA Republicans to reintroduce the Kids Online Safety Act (KOSA) — a bill that Heritage itself has proudly proclaimed as central to its strategy of censoring progressive content around LGBTQ issues and abortion. The new bill appears to be effectively identical to last year’s version.

It raises a huge question of… what the fuck are they thinking?

The press release touts its “bipartisan” nature, with Democratic Senators Chuck Schumer and Richard Blumenthal sponsoring the bill, alongside Marsha Blackburn and John Thune.

Last year, when Heritage Foundation declared its desire to use KOSA to censor LGBTQ content and announced it would leverage the bill to remove pro-abortion content if Trump won, perhaps some could dismiss it as empty rhetoric. But now? The Trump administration is systematically implementing every element of Heritage’s Project 2025 censorship playbook. There’s no more room for wishful thinking about how KOSA might be used.

And yet, Democrats seem to act as if none of that is happening, and we can just assume good faith in how KOSA will be implemented and enforced by an FTC that has loudly proclaimed its willingness to conduct partisan, culture war witch hunts on behalf of Project 2025’s goals.

Yes, we expect Richard Blumenthal to reflexively support any anti-internet bill. But Chuck Schumer? After everything we’ve seen, how can Democratic leadership still pretend there’s any good faith here? Trump is already using every available tool to wage his censorial culture wars. Heritage has explicitly laid out how they’ll use KOSA to silence progressive voices. What possible justification could there be for Democrats to hand them an even more powerful weapon?

Even some Republicans recognize the danger here. Senator Rand Paul has consistently maintained that censoring the internet won’t help children. And last year, House GOP members actually stopped the bill after realizing it was a censorship tool that could be used against their own speech. But now that Trump has won (and the GOP acts as though there will never be another free election), that objection may evaporate.

The bill’s lead sponsor, Marsha Blackburn, was already openly stating last year that her support for KOSA was about using it to censor LGBTQ content. That was before Trump’s victory made Heritage’s censorship plans a reality.

So here we are: Heritage Foundation explicitly laid out their plans to weaponize KOSA against progressive speech. Marsha Blackburn openly admitted it’s about censoring LGBTQ content. The Trump administration is systematically implementing every element of Project 2025’s censorship agenda. And the FTC stands ready to enforce it all.

Yet Democratic leadership isn’t just standing idle — they’re actively helping to build the machinery of censorship that will be used against their own constituents. Either Schumer and Blumenthal are catastrophically naive, or they’ve simply decided that appearing “bipartisan” matters more than protecting vulnerable communities from state-sponsored censorship.

The real question isn’t what they’re thinking. It’s whether they’re thinking at all.

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Our long national nightmare is over. More lives have been saved than have possibly ever lived. And that’s just since earlier this year.

Using the same drug math that turns a couple of kilos into something with tens of millions of dollars of “street value,” Attorney General Pam Bondi publicly claimed Trump’s return to office has prevented this nation from dwindling to a more-than-merely-decimated republic populated by less than 100 million people.

As Joe Lancaster reports for Reason, Bondi’s first announcement was just as stupid but not quite as absolutely surreal. Following a late April tour of a DEA forensic lab, Bondi claimed the seizure of 22 million pills had saved only “119 million lives.” But that number grew exponentially when Bondi returned to the White House to pay fealty to King Donald.

During a televised Cabinet meeting the following day, she effusively praised Trump for the accomplishments of his first 100 days. “Since you have been in office,” she gushed, “your DOJ agencies have seized more than 22 million fentanyl pills, 3,400 kilos of fentanyl, which saved—are you ready for this, media?—258 million lives.” That figure amounts to roughly three out of every four Americans, or nearly the entire adult population according to the most recent U.S. Census.

Literally laughable. That may be math, but it’s not the sort of math anyone would consider to be credible, unless credibility isn’t your actual goal. It’s not just Bondi being literally unbelievable. It’s the DOJ itself, which seems to think doing an insane amount of extrapolation is the best way to deliver drug seizure stats.

A DOJ spokesman told Slate’s Jim Newell that they multiplied 3,400 kilograms seized by its “current purity level,” then divided that amount into 2-milligram doses—yielding just over 258 million individual deadly drams.

Of course, that’s not how drug use, much less drug distribution, works. Seizing drugs may keep those (and only those) drugs from reaching their final destination. But it hardly puts a dent in drug distribution networks, which are fully cognizant of the fact that there’s a certain amount of shrinkage (to use a retail term of art) inherent to the illicit substance business.

But the more stupid claim is that taking this much off the streets is equal to saving this many millions of lives. Even if drug dealers were just hurling fistfuls of pills into the street like candy at a parade, there’s no way 258 million people would be able to grab them, much less decide the sudden gifting of fentanyl pills demands immediate consumption of a possibly fatal dose.

To be sure, fentanyl does kill a lot of people. But the war on drugs isn’t doing much to prevent these tragedies from happening. If anything, years of non-productive busywork has done little more than increase the potency of available substances and ensure no drug user truly knows what they’re ingesting because it’s an entirely unregulated market in which potency and purity can vary wildly.

Finally, it’s just an insanely idiotic claim to make publicly, something made even worse by the DOJ’s decision to back up Bondi’s bootlicking with a mathematical equation that spells out exactly how incredibly stupid her claim was. Lots of things are capable of killing someone, but no one ever claims each seized bullet, gun, car, or tainted consumable is the equivalent of one saved life. That’s because it’s simply not true. Just because this involves the drug boogeyman du jour doesn’t make these claims any more excusable.

The government can and should do what it can to prevent fentanyl overdoses. But making literally absurd claims in public doesn’t do a damn thing but expose those making these claims as the idiotic opportunists they are.

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Last year the Biden FCC passed a new rule providing portable Wi-Fi hotspots to school kids who struggle to do their homework online. More specifically, the rule allowed schools to leverage the FCC’s E-Rate program funds to pay for mobile hotspots in things like busses, making it easier for kids who lack broadband (or can’t afford broadband) to get online. The E-Rate budget was not increased.

Enter the Taco-Bell-fart-in-a-suit known as Ted Cruz, who last January introduced a Congressional Review Act (CRA) to kill the effort. Why? The effort upset companies like AT&T, which would obviously prefer it if the poor, rural families’ in question had to pay them for an expensive and unreliable rural wireless line. The CRA can be used to reverse rulings done within a set amount of time (usually 6 months).

So this week, that program quietly took another step toward destruction thanks to Ted Cruz’s idiotic efforts and the Republican-controlled Senate:

“The Senate approved a Congressional Review Act (CRA) resolution to nullify the hotspot rule, which was issued by the Federal Communications Commission in July 2024 under then-Chairwoman Jessica Rosenworcel. The program would be eliminated if the House version passes and President Trump signs the joint resolution of disapproval.”

This sort of thing (helping kids with shitty home broadband do their homework) used to not be partisan, and it’s another example of how radical the modern GOP has become. And how our broken media has normalized that radicalization in really harmful ways.

Again, the destruction of this program comes at the direct request of telecom giants which didn’t like government access eroding their wireless revenues. But the sort of ignorant justifications the GOP threw out to justify the vote were just utterly unhinged gibberish.

Cruz’s original press release announcing his plan teeters in and out of typical far right nonsense, including completely false claims that this free hotspot program somehow “censored kids’ exposure to conservative viewpoints.” Again, just complete nonsense by absolute weirdos, and part of a much broader effort to make sure U.S. broadband remains shitty and expensive to the benefit of big telecom.

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Look, folks, I have to admit that I’m running out of ways to open these posts about RFK Jr., so let’s just do this quickly. He’s a vaccine skeptic with a ton of bad ideas on public health policy, is letting the current measles outbreak expand for no good reason, has promised to have the cause of autism uncovered by the tail end of summer, will get the government to stop poisoning all of America with chemtrails, and might kinda be into a light version of eugenics. I’ll remind you again, should you have forgotten, that this is the man in charge of American healthcare.

Perhaps as alarming is some news that slipped by me a couple of weeks back: RFK Jr. has written in a book that he doesn’t believe in the germ theory of disease, opting instead for the miasma theory. What’s that you say? You haven’t heard of the miasma theory? Well, that’s probably because it was abandoned around the time his Nazi-appeasing grandfather was born.

The miasma theory was advanced by Hippocrates in the fourth century BC[3] and accepted from ancient times in Europe and China. The theory was eventually abandoned by scientists and physicians after 1880, replaced by the germ theory of disease: specific germs, not miasma, caused specific diseases.

Just impeach this guy already, damn it.

But my main point in bringing up yet another of Kennedy’s absurd healthcare beliefs isn’t merely to add a 59th reason he shouldn’t be the Secretary of HHS. It’s also because it makes what he posted to ExTwitter over Mother’s Day all the more strange.

Yes, Kennedy took his grandkids on a hike! And a swim! In a creek in which you are prohibited from swimming due to dangerous bacteria in the water? Why? Well, because it suffers from known sewage runoff, dear friends. Kennedy took his grandkids swimming in literal shitwater.

The creek is known for having a sewage overflow problem and posing a health hazard to any who enter it. The National Park Service, which manages the Rock Creek Park, strictly bars all swimming and wading in Rock Creek and the park’s other waterways due to the contamination, specifically “high levels of bacteria.”

A notice on the NPS website advises “Stay Dry, Stay Safe,” warning, “Rock Creek has high levels of bacteria and other infectious pathogens that make swimming, wading, and other contact with the water a hazard to human (and pet) health. Please protect yourself and your pooches by staying on trails and out of the creek. All District waterways are subject to a swim ban—this means wading, too!”

If I wanted to be kind to Kennedy, I could refer to this as the George Carlin method of healthcare. One in which you intentionally expose yourself to as many health dangers as possible in the misguided attempt to build up your immunity.

Now, if you watch that entire Carlin special, as I have, you know just how much tongue and cheek stuff is in there. But even if you wanted to take Carlin’s words at face value, he was a fucking comedian. He was the functional equivalent of a professional clown, whereas Kennedy’s clownery is as unprofessional as it gets. And, also like Kennedy, he too has zero medical training or background.

It would be easy enough to think that Kennedy will lie in whatever bed he’s made by swimming in unclean water, of course. But there are children to consider here. I, for one, wouldn’t want Kick or — checks notes — Bobcat, to get some flesh-eating bacteria inside their tiny bodies and have something horrible happen. Were Child Protective Services to witness a parent bathing their children in their home in a solution concocted of water, feces, and urine, those children would be whisked away and put in the charge of actual thinking adults. But here Kennedy is doing essentially the same thing, but out in a stream.

And the larger point is, again, that this man is in charge of American healthcare at the moment. He believes in disease theories from the 1800s, doesn’t like vaccines, thinks everyone should get measles and the weaklings will die, and is now a documented shit-diver.

Really, honestly, truly… how much more does anyone need to boot him from his post?

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Buried in the House GOP’s massive budget reconciliation bill is a seemingly simple provision about AI regulation. The idea appears straightforward enough: stop states from regulating AI companies for the next decade. To do this, they quietly added language preventing states from regulating “artificial intelligence models, artificial intelligence systems, or automated decision systems.”

This is, ostensibly, about “protecting innovation.” Or maybe just pleasing some campaign donors [waves to Elon!]. But there’s a small problem.

What, exactly, is an “automated decision system”?

According to the bill, it’s “any computational process derived from machine learning, statistical modeling, data analytics, or artificial intelligence that issues a simplified output, including a score, classification, or recommendation, to materially influence or replace human decision making.”

Right. So, yes, that would include AI.

But you know what else it includes? Pretty much every content moderation system ever created. And a whole lot more as well. As Dreamwidth founder Rahaeli points out, the incredibly broad and vague language would actually ban enforcement of basically any state internet regulation for the next decade. It could ban laws around using technology to diagnose health. Or using AI for hiring or sentencing guidelines.

Okay this is horrible but hilariously would also preclude 99% of state "think of the children" social media deanonymization laws and 100% of the attempts to regulate social media under "defective product" theories of action because it's so broadly written lol

— rahaeli (@rahaeli.bsky.social) 2025-05-13T00:13:08.926Z

Amusingly, the state laws this would kill include Republicans’ favorite new (generally unconstitutional) hobby horse — all those “protect the children online” bills they keep passing. You know the ones: laws requiring social media companies to verify ages, scan for harmful content, and generally “think of the children.”

See, every single tool these laws require would count as an “automated decision system.” The algorithm that checks if someone’s underage? That’s an automated decision system. The tool that flags potentially harmful content for kids? Also an automated decision system. The filters that GOP state legislators demand social media companies use? You guessed it.

In fact, if you read the definition carefully, it would seem to ban state regulation of pretty much any computer system that helps make decisions. Which, in 2025, is… most computer systems?

At this point, you might be thinking, “Well, surely there are exemptions for…” but nope. While the bill does include some exemptions, none of them would save these state-level content moderation laws. The House GOP, in their rush to please AI companies, have written a law so broad it would effectively prevent states from regulating any algorithmic system for a decade.

There’s a certain poetic justice here. These state-level social media laws have consistently been struck down as unconstitutional anyway. Having them all preempted by federal law might actually save everyone some time and legal fees.

At the very least, there’s a temptation to sit back and “let them cook.”

But this creates a fascinating contradiction: Republican state legislators are pushing for more control over tech companies, while Republican federal legislators are accidentally making that control impossible. It’s almost as if they don’t actually have a coherent technology policy beyond “do whatever seems politically expedient at the moment.”

To be fair, having federal-level AI regulation rather than 50 different state laws probably does make sense. But there’s a difference between thoughtful federal preemption and… whatever the fuck this is.

The House GOP clearly wanted to score some quick points with the AI industry. Instead, they’ve written a law that would nuke their own party’s cherished “save the children” crusade. Though given how those laws keep getting struck down anyway, maybe they’ve accidentally done everyone a favor.

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We’ve written a lot about how understanding the playbook Elon Musk used at Twitter is key to understanding his current playbook with DOGE. The people who literally wrote the book on said playbook are New York Times journalists Ryan Mac and Kate Conger (the latter of whom joined the podcast last year to discuss the book), and this week they both join us to dig deeper into the ways Musk is reusing his Twitter methods on the entire federal government.

You can also download this episode directly in MP3 format.

Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts or Spotify, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

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It’s hardly a secret that Meta is an unpleasant company. That’s reflected both in terms of what happens behind closed doors, and its actions in the market. Some of its attempts to bully nations or even large economic blocks are well documented. But its threats outside Western markets are just as reprehensible, though less well known. For example, the Rest of the World site reports on a major confrontation between Meta and the authorities that is currently taking place in Nigeria:

Local authorities have fined Meta $290 million for regulatory breaches, prompting the social media giant to threaten pulling Facebook and Instagram from the country.

As with earlier EU fines imposed on the company, the sticking point is Meta’s refusal to comply with local privacy laws:

The [Federal Competition and Consumer Protection Commission (FCCPC)] said Meta committed multiple and repeated infringements of the country’s Nigerian rules, including “denying Nigerians the right to control their data, transferring and sharing Nigerian user data without authorization, discriminating against Nigerian users compared to users in other jurisdictions, and abusing their dominant market position by forcing unfair privacy policies.”

After remediation efforts failed, the FCCPC issued its final order in July 2024, imposing a $220 million fine along with penalties from other agencies that took the total amount to $290 million. Meta appealed the decision, but the plea was overturned in April, prompting the company’s threat to withdraw its services from Nigeria.

The fine itself is small change for Meta, which had a net income of $62 billion on a turnover of $165 billion in 2024, and a market capitalization of $1.5 trillion. Meta’s current revenues in Nigeria are relatively small, but its market shares are high:

According to social media performance tracker Napoleoncat, Meta has a massive presence in the country, with Facebook alone reaching about 51.2 million users as of May 2024, more than a fifth of the population. Instagram had 12.6 million Nigerian users as of November 2023, while WhatsApp had about 51 million users, making Nigeria the 10th largest market globally for the messaging app.

Since many Nigerians depend on Meta’s platforms, the company might be hoping that there will be public pressure on the government not to impose the fine in order to avoid a shutdown of its services there. But it is hard to see Meta carrying out its threat to walk away from a country expected to be the third most populous nation in the world by 2050. In 2100, the population of Nigeria could reach 541 million according to current projections.

Even though the dispute in Nigeria has received little attention in the Western press, it involves a number of important issues such as privacy, national sovereignty and the future demographics of the online world, all of which have a global dimension. It also provides yet another instance of Meta behaving badly.

Follow me @glynmoody on Mastodon and on Bluesky.

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