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WashingTECH Tech Policy Podcast with Joe Miller

The WashingTECH Tech Policy Podcast is your resource for tech law and policy news and interviews. Each week, the WashingTECH Policy Podcast presents the latest developments across the tech policy landscape plus interviews with a diverse array of tech policy influencers.
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Now displaying: June, 2017
Jun 27, 2017

America's History of Recalcitrance

George Wallace's resistance to desegregation was similar to hate speakers' resistance to efforts to curb racism online.

De jure discrimination

Racism online is evolving in a way that is consistent with the way racism has always evolved--from explicit to subtle.

Plaintiff-side civil rights lawyers have found it easiest to win -- if civil rights cases can ever said to be "easy"--  in cases in which they can convincingly demonstrate defendants' explicit discriminatory policies.

The Civil Rights Act of 1964, the United States Supreme Court's 1954 decision in Brown v. Board of Educationand their subsequent cases and amendments comprise the bulk of American civil rights law.  The Civil Rights Act prohibits discrimination on the basis of race, color, religion, sex or national origin. Brown held segregation in public schools to be unconstitutional.

In interpreting a statute, judges will consider Congressional intent, which includes the circumstances under which Congress enacted the law. Congress enacted the Civil Rights Act  in an era of widespread de jure segregation in the South. Every 6th grader knows that, prior to Brown, state and local authorities in the South required "colored" and "white" students to attend segregated schools. Black students usually attended inferior schools with old books and in dilapidated buildings.  Southern authorities also required colored and white citizens to use separate facilities such as water fountains, restrooms, waiting rooms, and buses. They also enabled most private establishments, such as restaurants and hotels, to segregate as they pleased.

Following  Brown, Southern racists remained undeterred. For example, on June 11, 1963, fully 9 years after Brown, Alabama Governor George Wallace famously "stood in the schoolhouse door" to prevent Vivian Malone and James Hood from entering and registering for classes at the University of Alabama. President Kennedy deployed the National Guard to remove Wallace, which they did.

Virginia's response to Brown is also illustrative of the Southern response to it. Virginia Senator Harry F. Byrd, Sr. and his brother-in-law, Virginia General Assembly leader James M. Thomson, together pursued a  "Massive Resistance" strategy to oppose desegregationUnder Massive Resistance, the Virginia Assembly passed laws to prevent and punish local school districts for integrating in accordance with Brown. Further, Virginia authorities continued to enforce Massive Resistance initiatives well into the 1960s, even after federal and state courts ordered them to end their recalcitrance.

The Civil Rights Act finally codified the nation's civil rights policy.

Given the context in which the Civil Rights Act was enacted, courts are most likely to strike down laws and policies that contain explicit "suspect" classifications; namely, those that refer to race, color, religion, sex or national origin. Indeed, courts subject such de jure discrimination statutes and policies to the Constitutional "strict scrutiny" standard--the highest standard of judicial review. Paradoxically, laws designed to help traditionally marginalized groups, and which mention those groups explicitly, are also subject to strict scrutiny and thus likely to be struck down. (The intricacies of the strict scrutiny standard go well beyond the scope of this post. However, if you are interested in learning more about strict scrutiny and the other levels of scrutiny courts are likely to apply in interpreting the Constitution's Equal Protection Clause, click here.)

De facto discrimination

After many years of resisting civil rights laws, racists in the North and South had an a-ha moment. If they could figure out a way to maintain their supremacy using things that looked like something else, but achieved the same ends, they were golden! And so de facto discrimination--laws and policies that are not discriminatory on their face, i.e. they are facially neutral, but have discriminatory effects, have been the order of the day ever since. Stop-and-frisk? Check. Insanely long prison sentences for minor offenses? Check. School segregation based on merit? Check. Proposed cuts to Medicaid? Check.  Voter re-districting? You get the point.

Welcome to the age of stealth racism.

"I thought this post was about racism online."

It is.

The same racist ideologies that prevailed in 1964 prevail today. Since 1964, opponents of the Civil Rights Movement, many of whom are still alive today, and their descendants and allies, have persisted in their efforts to preserve their supremacy. They have taken racism online.

This is the story of some of the measures the tech sector has taken, such as Google's Conversation AI, to curtail racism online and how defiant hate speakers have evaded those measures by creating their own code language.

Hate speech is indeed protected speech and that's the problem.

Researchers at the Rochester Institute of Technology peeled back the top layer of the internet and found hate speech teeming underneath.

My guest today is Rijul Magu (@RijulMagu). Rijul co-authored, along with Shitij Joshi and Jiebo Luo at the Rochester Institute of Technology, a report entitled "Detecting the Hate Code on Social Media". He's the lead author. Rijul is currently a Masters Student at RIT and he earned his undergraduate degree at Jaypee Institute of Information Technology in Noida, India.

 

Resources

University of Rochester School of Engineering and Applied Sciences Department of Computer Science (homepage of Graduate Studies Faculty Advisor Jiebo Luo)

Detecting the Hate Code on Social Media by Rijul Magu, Kshitij Joshi, and Jiebo Luo

Zero to One: Notes on Startups, or How to Build the Future by Peter Thiel

News Roundup

The New York State Commission on Forensic Science has adopted a new controversial policy regarding the use of suspects' DNA evidence.  The Commission voted 9-2 to allow police to collect not just suspects' own DNA evidence, but also the DNA evidence of close relatives. While the measure has the support of prosecutors, opponents of the bill pointed out procedural flaws with some describing the new policy as a kind of genetic stop and frisk. Nathan Dempsey has the story at Gothamist.


A Department of Homeland Security official --Jeanette Manfra, acting deputy undersecretary of cybersecurity and communications for the agency’s National Protection and Programs Directorate --  told members of the Senate Intelligence Committee last week that Russia targeted election systems in 21 states during last year's presidential election. Ranking Member Mark Warner wrote Homeland Security Secretary John Kelly to make public the names of the states that were targeted. However, Secretary Kelly has thus far not released that information claiming that to do so would harm national security. Edward Graham covers this in Morning Consult.


Uber CEO Travis Kalanick has resigned following the fallout from former Attorney General Eric Holder's report on the company's frat boy culture. However, several employees have attempted to have Kalanick reinstated. Rebecca Savransky has the story in the Hill. The Congressional Black Caucus wrote a letter Monday to Uber leadership urging them to improve racial and ethnic diversity in hiring and promotions at the company.


A new Politico and Morning Consult report shows 60% of Americans either strongly or somewhat support the FCC's current net neutrality rules the new Trump-era FCC under Ajit Pai appears to be in the process of overturning. Two-thousand and fifty one registered voters were surveyed.


The FCC has recommended a $122 million fine on a suspected robocaller--the highest-ever FCC fine. Officials suspect the alleged robocaller, Adrian Abromovich, a Florida man, made some 100 million robocalls over three months. Harper Neidig has the story in The Hill.


The FCC also unanimously passed a rule change last week that will allow law enforcement to bypass blocker called IDs belonging to callers making imminent threats. Harper Neidig has this one in The Hill as well.


We may soon be able to access Internet via an internet connection made from space. Doing so would significantly speed up upload and download speeds. The FCC approved a plan of Greg Wyler who plans to link up 720 satellites to deliver high speed broadband from space as soon as 2019. Brian Fung has the full story in the Washington Post.


President Trump met with tech executives, including drone developers last week. The president said he'd work to give tech companies the "competitive advantage they need" and "create lots of jobs". David Shepardson covers the story in Reuters.


In a unanimous 8-0 decision, the Supreme Court ruled last week that a North Carolina law that prevents registered sex offenders from going on Facebook is unconstitutional under the First Amendment. Lydia Wheeler covers this in the Hill.


FCC Chaiman Ajit Pai testified at a Senate Appropriations Committee hearing last week about the agency's budget. Pai recommended a budget cut of over 5.2% since last year, or $322 million, which Chairman Pai conceded would come from the elimination of over 100 Commission jobs.

Jun 20, 2017

What is a SLAPP Suit?

Let's say you own a small business called "Policy Town Fajitas". You think your business is second-to-none. You've invested in it--time, sweat, money and otherwise ... But then, all of a sudden, one of your customers doesn't fancy your business as much as you do. So they post a negative review about your business on a site like Yelp. They say your "chicken fajitas taste like pigeon and that's how I know it's not authentic Mexican food."

If you're like most businesses, you try to improve (such as by switching to chicken meat). But some businesses try to turn the tables by putting the reviewer on the defensive.

Let's call the reviewer Mrs. Davis. So you file a lawsuit against Mrs. Davis that is simply designed to drive her absolutely nuts. Eventually, you hope, Mrs. Johnson will decide to delete her review.

That lawsuit is called a "strategic lawsuit against public participation", but we just call them SLAPP suits. 

Batman and Robin_YELP_SLAPP_Suits

 

Now, we know you would NEVER serve up pigeon fajitas. But what are the policy implications of SLAPP suits, particularly as they relate to online freedom of speech?

Here to discuss SLAPP suits is Laurent Crenshaw (@LCrenshaw), Yelp's head of Federal Public Policy in Washington DC. At Yelp Laurent has championed the company’s federal efforts to protect consumer freedom of speech on the Internet, and worked to implement Yelp as a tool for the federal government.

Prior to joining Yelp in 2013, Laurent worked in the House of Representatives for over 11 years. During his tenure he served as the Legislative Director for Representative Darrell Issa focusing on technology policy issues, particularly in the areas of intellectual property, telecommunications and Internet law; and also worked in the offices of the House Majority Whip and House Republican Conference. Laurent successfully worked on numerous legislative efforts including the passage of the Leahy-Smith America Invents Act in 2011 and the fight to defeat SOPA and PIPA in Congress. Additionally, Laurent also serves on the board of directors for Public Knowledge and as a member of the American Library Association’s Public Policy Advisory Council.

Laurent obtained his undergraduate degree in International Relations from Stanford University in 2002 and his Juris Doctor degree from American University’s Washington College of Law in 2010.

Resources

Yelp's Public Policy Blog

SPEAK FREE Act (Congressional Anti-SLAPP Suits legislation)

Zero to One: Notes on Startups, or How to Build the Future by Peter Thiel

News Roundup

Amazon is acquiring Whole Foods for $13.7 billion.  Experts see the move as a direct hit on big box retailers like Wal-Mart and Target, whose shares tumbled sharply on news of the announcement. Analysts see it as a significant step by Amazon to substantially expand its warehouse and local supply chain operations. Laura Stevens has more at the Wall Street Journal. One interesting thing to note is that on May 30th, Amazon filed a patent for technology that allows it to block customers from using their phones to "window shop", or check the prices of other stores, while they're on site at an Amazon property. Brian Fung reports on that in the Washington Post.


President Trump has officially nominated former Democratic FCC Commissioner Jessica Rosenworcel to return to the agency.  Rosenworcel has strong Democratic support. Her previous four-year term ended last year when the Senate failed to reconfirm her term before it expired. Still open at the FCC is the third Republican seat. Brendan Carr--a current advisor to FCC Chairman Ajit Pai -- is considered the front-runner for that seat although, as of Monday evening, the White House has not yet made the official nomination.


The FBI and Department of Homeland Security released a joint announcement saying North Korea has been executing cyberattacks against institutions  worldwide since 2009. North Korean government actors calling themselves "Hidden Cobra" are the culprits, according to the statement, and they have been attacking aerospace, financial and other institutions in the U.S. and around the world. Deb Reichmann reports for the Associated Press.


Verizon has completed its $4.5 billion acquisition of Yahoo. Former Yahoo CEO Marissa Mayer resigned with a $23 million package. Alina Selyukh has the story at NPR.


The Federal Trade Commission will be opposing the proposed merger of DraftKing and FanDuel--the two largest fantasy sports  sites. In a statement released Monday, the FTC wrote that the combined company would control more than 90% of the market.


The families of prison inmates could see their phone charges for calling incarcerated loved ones shoot back up to as much as $14 per minute. The Obama-era FCC had placed caps on those calls that ranged to between 14 and 49 cents per minute. But the DC Circuit Court of Appeals ruled last week that the FCC did not have the authority to regulate those rates. The Court ruled that the FCC lacked the authority to regulate those rates because they pertained to intrastate calls, and not interstate calls, and thus they fall outside the FCC's federal jurisdiction. Zoe Tillman covers this for BuzzFeed.


The Indian woman who was raped by an Uber driver in India is suing the company in the U.S. for violating her privacy and for defamation of character. The plaintiff, a Texas resident, has filed as a Jane Doe. Apparently, Uber CEO Travis Kalanick had said publicly that the company would do everything it could to ensure the rapist would be brought to justice. However, behind the scenes, the victim alleges that Uber obtained her medical records in India and then worked to use the information to claim the rape was all a ruse that was orchestrated by Uber's main competitor in India.  Julia Carrie Wong summarized this story in the Guardian. Uber has been embroiled in numerous controversies of late. These culminated last week  in Kalanick being placed on an indefinite leave of absence and top ranking executives being let go. These latest developments were in response to a report spearheaded by former Attorney General Eric Holder that recommended these and other changes at Uber.


Facebook has outlined a strategy for weeding out terrorist content on its platform. The company released a blog post last week saying that it has about 150 people on staff nationwide whose job it is to remove all content posted by or in support of terrorists. The company also uses artificial intelligence and other technology to take down content that promotes terrorism on Facebook and its other properties, according to the post.


Finally, remember President Trump's Twitter typo a few weeks ago, when he tweeted the word "covfefe" instead of "coverage"? Well, The Hill's Harper Neidig noticed last week that the U.S. Patent and Trademark Office had more than 30 trademark requests containing the word "covefefe" since the flub. 

Jun 13, 2017

Privacy, Searches, Seizures and the Law

The digital age is challenging the way our judicial system balances privacy against the needs of law enforcement. The Fourth Amendment of the U.S. Constitution states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

Our devices, as well as cloud-based services like Dropbox, have revolutionized our concept of what information should be considered private. For example, in U.S. v. Graham, the U.S. District Court for the District of Maryland applied the so-called "third party doctrine". In that case, the court held that the Fourth Amendment does not protect historical cell site location data. Therefore, law enforcement officers do not require warrants to obtain access to that data. The court reasoned that the defendant communicated the data to a "third party", namely the cell phone provider.

These technologies also pose significant Constitutional challenges. For example, who should set the standard of what constitutes a "reasonable expectation of privacy" in the first place? Should judges or the public determine such reasonableness?

My guest today is Professor Bernard Chao --a professor at the University of Denver's Sturm College of Law, where he co-Directs the law school's Empirical Justice Program. Chao has written that, up until now, judges have had to guess about what constitutes reasonableness. Historically, judges have had to place themselves in the shoes of a hypothetical reasonable person. However, according to Chao, judges are now in a position to gather empirical data via public surveys.  This data has the potential to inform judges about what members of the public actually think constitutes reasonableness in a given context.

Further, the demographic characteristics of most judges in no way reflects the far more diverse demographics of the population as a whole. Judges are often white, male and wealthier than the average citizen. Thus, their notions of reasonableness exclude other diverse perspectives. Indeed, some of Chao's research has shown that members of certain minority groups had higher standards of privacy than did the control group.

Professor Chao is the lead author  of a forthcoming California Law Review article he is co-authoring along with Catherine Durso, Ian Farrell and Christopher Robertson entitled "Why Courts Fail to Protect Privacy: Race, Age, Bias, and Technology".

Resources

Denver Empirical Justice Institute

HUGO Consulting

Intellectual Privacy: Rethinking Civil Liberties in the Digital Age by Neil Richards

News Roundup

Uber, as you know, has a laundry list of controversies ... Susan Fowler a former Uber engineer, accused the company of fostering a hostile, sexual harassment  culture. Google is suing Uber for stealing trade secrets from its self-driving car unit, Waymo. Uber CEO Travis Kalanick has been caught on video berating an Uber driver.  The company has been hemorrhaging money, showing billions in losses, in quarter after quarter, despite revenue growth …

Now, Covington and Burling Partners Eric Holder-- who is former President Barack Obama’s former Attorney General-- and Tammy Albarrán are wrapping up an independent investigation they’ve been conducting on behalf of the company. It looks like Uber may be on the brink of requiring Kalanick to take at least a 3 month leave of absence. We’ll know more when Uber releases Holder’s report to employees on Tuesday. But the Board has already indicated that it would be accepting all of Holder’s recommendations. One of the recommendations is to fire Emil Michael--Kalanick’s chief deputy.  In the meantime, you can check out Ali Breland’s complete summary in the Hill.

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Tony Romm at Recode reported that current FCC General Counsel Brendan Carr and former FCC Commissioner Jessica Rosenworcel are the two front-runners President Trump is considering to fill the two remaining Commissioner slots at the FCC.

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The federal government is accusing yet another NSA contractor with leaking classified information to the public. Last week, federal agents arrested twenty-five year old Reality Leigh Winner, who had a top secret security clearance. The feds have accused Winner of sending information about Russian hacking activities to the Intercept--the online newspaper. She had served in the Air Force for 6 years prior to becoming a contractor at Pluribus International Group in Augusta, Georgia. The leaked documents revealed that Russia may have hacked a U.S. voting system manufacturer just prior to last year's presidential election. Madison Park has a full summary at CNN.com.

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Finally, Jon Brodkin reported in Ars Technica on comments made by FCC Chair Ajit Pai and Wisconsin Senator Ron Johnson on WTMJ Radio last week in which both Pai and Johnson called net neutrality a “slogan”. Johnson seemed to advocate for fast lanes (paid prioritization). But paid prioritization is a practice the Wheeler-era net neutrality rules specifically prohibits. The DC Circuit has upheld those rules, and the current FCC is now in the midst of a proceeding to overturn them. Brian Fung reports in the Washington Post that several tech companies including Etsy, Kickstarter, Mozilla, Reddit, Y Combinator, and Amazon will change their websites on July 12th to protest the FCC’s apparent plan to reverse the net neutrality rules.

Jun 6, 2017

The London Bridge terror attacks that occurred this past weekend are causing policymakers to once again re-evaluate the efficacy of their counterterrorism efforts against ISIS.

ISIS counterterrorism expert Audrey Alexander (@aud_alexander) is a Research Fellow at The George Washington University Program on Extremism. Before joining the Program on Extremism, she worked at King’s College London’s International Centre for the Study of Radicalisation (ICSR). At ICSR, Audrey used open source intelligence to identify instances of Western women relocating to enemy-held territories. Previously, Audrey worked at the Institute for Strategic Dialogue (ISD), where she studied online radicalization and “lone-actor” terrorism. She contributed to the widely acclaimed “Till Martyrdom Do Us Part: Gender and the ISIS Phenomenon” report published by ISD and ICSR. Alexander holds a Masters in Terrorism, Security & Society from the War Studies Department at King's College.

In this episode, we discussed:

  • how American institutions have tried and failed to contain the ISIS threat online.
  • alternatives to current technological approaches to containing the enemy's online recruitment efforts.
  • how policymakers can identify warning signs pertaining to potential activity by non-ISIS groups.

Resources:

The George Washington University Program on Extremism

Black Flags: The Rise of ISIS by Joby Warrick

Deep Work by Cal Newport

NEWS ROUNDUP

Kleiner Perkins Caufield and Byers partner Mary Meeker released her annual Internet Trends report last week. Key findings include a slow down in smartphone growth, to just a 3% growth in shipments last year, down from 10% the year before. There's also an uptick in voice searches, which have reached about a 95% accuracy rate. The report found voice searches to be well on their way toward replacing text-based search inquiries. Meeker's report also reveals that some 60% of the most highly valued tech companies in the U.S. were founded by first- or second-generation Americans. These findings only scratch the surface. Here's a link to the slides.


Elon Musk announced in a tweet last week that he has decided to leave president Trump's advisory councils following the president's announcement last week that he would be pulling the U.S. out of the Paris Agreement. The Agreement is a multinational accord that brings together 195 countries in a commitment to fight climate change. The U.S. joined Nicaragua and Syria among the nations that will not participate if Trump has his way. However, the earliest possible date the U.S. would be able to make an effective withdrawal from the agreement is November 4, 2020, or one day after the 2020 presidential election.

Tech giants Apple, Google, Amazon, Microsoft, Facebook and hundreds of other businesses have also formed an initiative dubbed "We're Still In", which was organized by Michael Bloomberg Philanthropies, the Sierra Club, and the Center for American Progress, to express their commitment to the Paris Agreement and local and state authorities whom they see as being more influential than the federal government on climate change.


The Supreme Court announced Monday that it will hear a key case regarding law enforcement's ability to obtain cell phone data without a search warrant. The 6th Circuit Court of Appeals in Carpenter v. U.S. upheld the district court which sentenced defendant Timothy Carpenter to some 116 years in prison for committing a string of armed robberies of TMobile and Radio Shack stores in Michigan and Ohio back in 2010 and 2011. The evidence admitted at trial against Carpenter included cell phone records showing he was in close proximity to the stores when the robberies occurred. Lydia Wheeler has the story in The Hill.


Once again, Booz Allen, the same firm that employed Edward Snowden as an NSA contractor, is the subject of a data breach. Some sixty thousand sensitive documents related to a US military project were found unsecured on on a public Amazon server.  Gizmodo reports the compromised files also contained the encrypted passwords of officials with top security clearance. Dell Cameron reports at Gizmodo.


Democratic leaders in Congress have asked Acting FBI Director Andrew McCabe to probe the cyberattack that FCC Chairman Ajit Pai claims caused the agency's commenting site to go down. The site went down shortly after John Oliver directed his viewers to go to site domain gofccyourself.com, which redirected to the FCC's actual commenting page. But Chairman Pai said the site went down due to an external cyber attack. Senators Brian Schatz (Hawaii), Al Franken (Minn.), Patrick Leahy (Vt.), Ed Markey(Mass.), and Ron Wyden (Ore.) want answers from the FBI by June 23rd. Morgan Chalfant has the story in The Hill.


Finally, Uber fired the former Google engineer accused of stealing secrets from Alphabet self-driving car unit Waymo and bringing them with him when he started his own self-driving car company, Otto, which Uber then acquired. Anthony Levandowski apparently became too much of a liability for Uber, which is currently embroiled in litigation Google brought against it because of Levandowski's alleged actions. Daisuke Wakabayashi and  Mike Isaac report in the New York Times. Greg Bensinger at the Wall Street Journal reports that Uber also posted a $708 million loss in the first quarter. This was on top of the $991 million the company lost in the 4th quarter of 2016. Uber Head of Finance Guatam Gupta will be leaving the company in July to work for an unnamed startup.

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