Discrimination plaintiff finds “that offers of employment have been rescinded after Google searches of her name revealed the events of this case, namely her surreptitious recordings of her co-workers.” So she asks the court to seal the case record. Nope: “strong presumption in favor of public access” not overcome [Eugene Volokh on Gilliard v. McWilliams, federal court in D.C.]
Conservative commentator Dennis Prager has an op-ed in yesterday’s WSJ restating his claims (made in a lawsuit dismissed last year and re-filed this spring in a new suit) that YouTube restricted his “Prager University” videos owing to anti-conservative bias. These claims of unfair treatment have gotten wide circulation, especially since the popular Prager U. series for the most part presents mainstream conservative views in a calm rather than incendiary tone. In his op-ed, Prager speaks favorably about the enactment of new “laws governing big technology companies” to restrain “their hostility to conservative voices.”
This Mike Masnick thread (language) gives another side to the story. YouTube’s optional “restricted mode,” meant to limit kid viewing, isn’t important or much used (only 1.5% of users enable it). The PragerU shows at issue did have some content about topics like rape, murder, and genocide that might disturb younger children. And many other well-known shows see a larger share of their episodes put into restricted mode. Thus 12% of Prager U. videos have been put in restricted mode, compared with 24% of History Channel videos, 28% of Vox videos and 54% of Daily Show videos. Matthew Feeney at Cato, James Pethokoukis at AEI, and Billy Binion at Reason have more.
One irony I see in this is that conservatives up till recently have tended to favor promoting parental-control modes in social media, or even making them the default, and have accepted the inevitability that the automated algorithms that inevitably drive these modes when applied to large bodies of material may sometimes sweep broadly enough to screen out even some responsible, sober, and fact-based discussions of topics to which parents might not want to expose younger teens.
Having now seen these modes in action, they seem to be having second thoughts.
P.S. “Conservatives have also spent decades opposing any attempt to revive the FCC’s old Fairness Doctrine, which required broadcasters to be balanced in their programming on controversial issues. ‘FCC bureaucrats can neither determine what is “fair” nor enforce it,’ the Heritage Foundation said in 1993.” [Margaret Harding McGill and Daniel Lippman, Politico, on reports of new White House executive order]
More: John Samples, Cato (“Dennis Prager, Big-Government Conservative”).
The California Consumer Privacy Act, drawn up hastily to avert a threatened ballot initiative, purports to create six new categories of data-related consumer rights, “including the right to know; the right of data portability; the right to deletion; the right to opt-out of data sales; the right to not be discriminated against as a user; and a private right of action for data breaches.” Although sometimes compared to the European GDPR, the two laws are different and compliance with the one enactment (which has been immensely expensive already) does not accomplish compliance with the other. Expect uncertainty, fines, the California specialty of entrepreneurial class-action litigation, and more tilting of compliance cost structures to the benefit of tech companies and advertising intermediaries big enough to afford to spread the high expense over large revenue streams [Alec Stapp, Truth on the Market; more: Al Saikali, Washington Legal Foundation; Petrina McDaniel, Elliot Golding and Keshia Lipscomb, Squire Patton Boggs]
I join Cato colleagues Ryan Bourne and Caleb Brown to discuss the rise and fall of tech monopolies over the years. Related here.
The European Union’s General Data Protection Regulation (GDPR), which went into effect just over a year ago, has resulted in a broad array of consequences that are expensive, unintended, or both. Alec Stapp reports at Truth on the Market, with more discussion at Marginal Revolution:
GDPR can be thought of as a privacy “bill of rights.” Many of these new rights have come with unintended consequences. If your account gets hacked, the hacker can use the right of access to get all of your data. The right to be forgotten is in conflict with the public’s right to know a bad actor’s history (and many of them are using the right to memory hole their misdeeds). The right to data portability creates another attack vector for hackers to exploit.
Meanwhile, Stapp writes, compliance costs for larger U.S.-based firms alone are headed toward an estimated $150 billion, “Microsoft had 1,600 engineers working on GDPR compliance,” and an estimated 500,000 European organizations have seen fit to register data officers, while the largest advertising intermediaries, such as Google, appear to have improved their relative competitive position compared with smaller outfits. Venture capital investment in Euro start-ups has sagged, some large firms in sectors like gaming and retailing have pulled out of the European market, and as of March more than 1,000 U.S.-based news sites were inaccessible to European readers.
The plain language of the GDPR is so plainly at odds with the business model of surveillance advertising that contorting the real-time ad brokerages into something resembling compliance has required acrobatics that have left essentially everybody unhappy.
The leading ad networks in the European Union have chosen to respond to the GDPR by stitching together a sort of Frankenstein’s monster of consent,a mechanism whereby a user wishing to visit, say, a weather forecast is first prompted to agree to share data with a consortium of 119 entities, including the aptly named “A Million Ads” network. The user can scroll through this list of intermediaries one by one, or give or withhold consent en bloc, but either way she must wait a further two minutes for the consent collection process to terminate before she is allowed to find out whether or it is going to rain.
This majestically baroque consent mechanism also hinders Europeans from using the privacy preserving features built into their web browsers, or from turning off invasive tracking technologies like third-party cookies,since the mechanism depends on their being present.
For the average EU citizen, therefore, the immediate effect of the GDPR has been to add friction to their internet browsing experience along the lines of the infamous 2011 EU Privacy Directive (“EU cookie law”) that added consent dialogs to nearly every site on the internet.
- “The Moral Panic Behind Internet Regulation” [Matthew Lesh, Quillette] New Congressional Research Service report on free speech and the regulation of social media content [Valerie C. Brannon, Congressional Research Service]
- “A social media campaign from the French government has been blocked by Twitter – because of the government’s own anti-fake-news law” [BBC via Elizabeth Nolan Brown]
- European authorities misidentify many pages on Internet Archive as “terrorist,” demand takedown [Mike Masnick, Techdirt]
- Armslist case is one in which Section 230 protected Second Amendment rights (that’s not a misprint for First) [John Samples, Cato; Eugene Volokh]
- Sen. Josh Hawley (R-MO)’s bill to require the largest social media firms to obtain certification of their political balance from the FTC, on pain of making them liable for all content posted by users, met with hail of dead cats from knowledgeable observers [Elliot Harmon/EFF, John Samples/Cato and more, Cathy Gellis, Joshua Wright thread, Eric Goldman, Raffi Malkonian on retroactivity and more, Elizabeth Nolan Brown/Reason] Related: Daphne Keller (“Build Your Own Intermediary Liability Law: A Kit for Policy Wonks of All Ages”);
- “We sympathize with Plaintiffs — they suffered through one of the worst terrorist attacks in American history. ‘But not everything is redressable in a court.'” [Sixth Circuit, Crosby v. Twitter, affirming dismissal of lawsuits seeking to hold Twitter, Facebook, and Google liable under Anti-Terrorism Act for abetting self-radicalization of perpetrator of Orlando Pulse attack]
- Internal Google pay study “found, to the surprise of just about everyone, that men were paid less money than women for doing similar work.” [Daisuke Wakabayashi, New York Times] “What the Data Say About Equal Pay Day” [Chelsea Follett, Cato; Hans Bader]
- Otherwise routine on-the-job injuries can have dire consequences for those suffering hemophilia, and a manufacturing company learns its “insurance costs could spike” as a result if it employs three hemophiliac brothers. Don’t think you can turn them away for a reason like that, says EEOC [commission press release on ADA settlement with Signature Industrial Services, LLC involving $135,000 payment and “other significant relief”]
- Multnomah County (Portland), Oregon to pay $100,000 settlement to black worker who says she was retaliated against after complaining about “Blue Lives Matter” flag [Aimee Green, Oregonian; Blair Stenvick, Portland Mercury]
- “The social justice madness of college campuses is now seeping into HR departments of large employers. The result is the rise of the woke corporation, and it might affect the way you work” [Toby Young, Spectator (U.K.)]
- “The FDNY’s diversity monitor has cost the city $23 million in 7 years” [Susan Edelman, New York Post]
- Before taking an exam required of federal employees in Canada, best to study up on intersectionality theory [Josh DeHaas on Twitter, GBA+, Tristin Hopper/National Post]
The EU’s General Data Protection Regulation (GDPR), along with similarly heavy-handed regimes such as California’s Consumer Privacy Act, entrenches established platforms that have the resources to meet their onerous compliance requirements. Since the GDPR’s implementation in May, the rank and market share of small- and medium-sized ad tech companies has declined by 18 to 32 percent in the EU, while these measures have increased for Google, Facebook, and Amazon.
Via Alex Stamos thread on Twitter (“Anybody wonder why the big tech companies didn’t really fight that hard against GDPR? It isn’t due to a newfound love of regulation”) by way of James Pethokoukis; more, Antonio García Martínez.
- “Twenty-five years of developments in both the law and social science show that a police command to ‘stop’ is more than a mere request for information.” Courts should handle accordingly [Ilya Shapiro on Cato amicus brief in Cisse v. New York, New York Court of Appeals]
- Procedures must be followed: “Murder suspect tries to turn himself in at New Orleans jail, but deputies demand proper ID” [Matt Sledge, The Advocate]
- New project aims to educate public on how to navigate oft-complex police complaint process [Cato Daily Podcast with Steve Silverman and Caleb Brown]
- “Are We About to See a Wave of Police Using ‘Victim’s Rights’ Laws to Keep Conduct Secret?” [Scott Shackford, earlier]
- “Militarization Fails to Enhance Police Safety or Reduce Crime but May Harm Police Reputation” [Jonathan Mummolo, Cato Research Briefs in Economic Policy, earlier]
- In letter to Google, NYPD threatens legal action if Waze app fails to remove feature allowing users to post locations of police checkpoints [Amanda Robert, ABA Journal]
- “Illinois Supreme Court Allows No-Injury Biometric Information Privacy Act Claims in Complete Victory for Plaintiffs’ Bar” [Locke Lord] Google’s “which museum portrait is your selfie like?” an early local casualty [Illinois Policy and generally on the law]
- “Class action reform isn’t dead. It’s just not coming from Congress” [Alison Frankel, Reuters]
- To get around Daimler v. Bauman line of cases, state statutes now provide that by registering to do business in the state an out-of-state business consents to general personal jurisdiction. Is that consistent with due process? [Anand Agneshwar and Paige Sharpe, WLF, and on Mallory v. Norfolk Southern Railway case in Pennsylvania; Beck with survey of state statutes]
- “As Pelvic Mesh Settlements Near $8 Billion, Women Question Lawyers’ Fees” [Matthew Goldstein, New York Times, earlier and more]
- More on Department of Justice crackdown on fraud and mismanagement in asbestos bankruptcy trusts [ABA Journal, AP, Alison Frankel/Reuters, Sen. Chuck Grassley statement, earlier]
- Judge: Port Authority not liable over George Washington Bridge jumpers [Julia Marsh, New York Post]