Before #EARNITAct markup, a @SenateJudiciary Culture Wars kerfuffle

January: @MarshaBlackburn asked a black appellate nominee (Andre Mathis) about his "rap sheet" (actually 3 decade-old traffic tickets)

Today, @SenAlexPadilla complained about this... 🧵ballsandstrikes.org/nominations/an…
Blackburn was pissed that Biden nominated Mathis to an appeals court in Tennessee over the "blue slip" objections of both TN Republican Senators

Trump bypassed 17 Dem blue slips

So Blackburn focused on Mathis's "rap sheet," implying that getting 3 tickets made him a criminal
"RAP" means "Record of Arrests and Prosecutions"

a "RAP sheet" is a list of criminal charges

It's NOT getting three traffic tickets a decade ago
Blackburn's "rap sheet" comment wasn't a slip of the tongue. She repeated the talking point on Fox News
The NAACP chairman was rightly outraged
Today, @SenAlexPadilla suggested that this was part of a larger pattern of Republicans not treating POC nominees fairly

Durbin warned: one nominee faced tough questions, and another Committee member tweeted about it, and that nominee then faced harassment

Unclear who he meant
.@SenMikeLee angrily responded that such "unfair" suggestions of racism were "the very sort of comment that would incite people to anger and acts of retaliation and violence"

yikes
.@HawleyMO called implications of racism "a common tactic in campaigns and the media" and "highly destructive of any efforts at bipartisanship and consensus-building"
I can't assess @SenAlexPadilla's claim that minority nominees have been treated differently overall, but the "rap sheet" comment was ugly

And it's sad that 🐘s leapt at the chance to protest any suggestion of racial bias, suggesting that claims of racism were the real problem
Draw your own conclusions, but note: the @SenateJudiciary Committee has plenty of time for this kind of Culture War fight but not, apparently, to bother holding hearings over bills that would break encryption, enable Parler or Infowars to sue Google for rejecting its app, etc etc

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More from @BerinSzoka

Feb 10
.@SenateJudiciary is marking up #EARNITAct, which claims to crack down on child sexual abuse material but will really jeopardize prosecutions. Forcing tech firms not to use strong encryption & to monitor users makes them state actors who need a warrant 🧵

judiciary.senate.gov/meetings/02/03…
#EARNITAct's sponsors say they've fixed the bill. They haven't. Making the "best practices" "voluntary" doesn't help. The 4th Amd./privacy problem has always been come from exposing tech companies to such vast liability that they *must* monitor what users say & abandon encryption
#EARNITAct was changed in 2020 to "fix" the liability it enables under federal law (by tying it to "actual knowledge", but it then does exactly the same thing through the back door: enabling states to enforce criminal & civil laws that turn on mere recklessness or negligence
Read 50 tweets
Oct 14, 2021
1/ Democrats want to stop websites from spreading hate speech, misinformation, etc

But this bill would do the opposite; it would do exactly what the Trump administration wanted—because @EnergyCommerce Dems still don't understand how #Section230 works
2/ The bill would expose many websites to liability, both civil and criminal, for making recommendations. States will enforce existing laws & write new ones, and we'll spend years litigating them under the First Amendment

But that's not all the bill does...
3/ The bill turns off (c)(1) protections "with respect to information" subject to a "personalized recommendation"

Thus, a website could be sued both for recommending content and also for trying to stop its spread once it's been "recommended" by automated, algorithmic processes
Read 12 tweets
May 14, 2021
1/ There's nothing "conservative" (or constitutional) about the MAGA Fairness Doctrine for the Internet

They're recycling 1960s left's “media access theory”

Me in the WSJ: wsj.com/articles/sen-j…
2/ The First Amendment doesn't give you a right to speak on someone else's property. It actually guarantees *their* right to tell you to take a hike, no matter now "unfair" that might be

Because the 1A is a shield against government meddling in media, not a sword
3/ No, we cant just extend "net neutrality" to social media, because social media have always offered an inherently edited service
Read 8 tweets
Apr 21, 2021
Livetweeting this hearing on app store competition

The central premise, that app stores have "gatekeeper" control, is greatly exaggerated, if not wrong
Klobuchar emphasizes that Apple won't allow sideloading of apps onto iOS photos (as Google does)

But Apple has, since 2018, allowed progressive web apps (PWAs) to run in the Safari mobile browser

And PWAs are increasingly able to duplicate the functionality of "native" apps
PWAs have some significant advantages over native apps (found in app stores): notably, you can build the same app to run on all major web browsers (except Firefox), so you don't have to build separate Android and iOS versions
Read 32 tweets
Apr 21, 2021
Just tuned in to @LinaMKhan's confirmation hearing. Of course, Wicker focuses on whether social media can be treated as common carriers, citing Justice Thomas

Apples & oranges: Lina's paper was about *economic* regulation of Amazon, not content moderation, protected by the 1A
Unfortunately, she didn't make that distinction clear, just saying that we need to be "a bit market specific"

I debunk Thomas's opinion here (with @corbinkbarthold) lawfareblog.com/justice-thomas…
And I explain the line between regulating economic conduct (what Dems are focused on) and regulating editorial judgments (what Republicans are focused on here:
gaidigitalreport.com/2020/10/04/sec…
Read 9 tweets
Apr 19, 2021
Republicans have relentlessly attacked "Big Tech" companies for "censoring" conservatives

Under pressure, Apple has caved, reinstating the #Parler app even though, for example, openly Nazi content is still readily available on the site. And that's just the tip of the iceberg...
It's hard to know what's really on Parler because the site doesn't allow full text search: unlike on Facebook or Twitter, you can only search for user names and hashtags

Even before the January 6 insurrection, Parler censored certain hashtags, like the N-Word
This was the bare minimum of what it took to create the veneer of respectability required to pretend that the site wasn't the cesspool of hate speech that it actually is

Parler seems to have expanded the list of banned hashtags to include other code words (eg "skittles"=Muslims)
Read 21 tweets

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