Ari Cohn Profile picture
Sep 15, 2022 15 tweets 6 min read Read on X
1/ The JCPA has changed since our letter, and since Cruz derailed it with a hostile amendment at markup. It *might* get marked up again this AM.

But issues with the bill persist, as we (along with @marklemley & @AnupamChander) wrote last night to explain: techfreedom.org/wp-content/upl…
2/ The first notable change to #JCPA actually happened the evening before the last markup. Recall that the bill allows publishers to join together to negotiate the terms and conditions by which platforms "access" their content. But "access" was originally left undefined.
3/ That was a problem, as it could have amounted to imposed must-carry obligations on platforms. But last week's manager's amendment inserted a definition of "access" -- "acquiring, crawling, or indexing content." Image
4/ According to JCPA's supporters, this resolves content moderation concerns: because the obligation to pay is triggered at that early stage, what a platform does *after* that (in deciding whether/how to display content) is left untouched by JCPA.

But is that really so?
5/ The definition of "retaliation" is still so broad that aggrieved parties can frame routine content moderation as retaliation in protracted, vexatious litigation. Image
6/ But there's another problem: the definition of "access" may cut off *some* moderation-based abuse, but JCPA is still a "must pay" bill--and that payment obligation is triggered before a platform has any idea what the content it has "accessed" even IS! Image
7/ When a platform "crawls," it's discovering the content that's out there by following links on websites. And...crawling...from one to another. It then has to analyze the content, index it -- copy over the data, organize it in a way that makes it useful, and rank it.
8/ But before crawling, the platform has no idea what it's actually going to find--or whether it's content they want to allow on their service. Crawling is *how* platforms figure that out. JCPA forces them to pay for the privilege of deciding that content violates their policies. Image
9/ JCPA could also force platforms to pay for content uploaded directly to their services, without asking for it, wanting it, or displaying it.

Hypo: consider YouTube. Say I'm a DJP with a JCPA agreement. I upload some awful video that violates TOS and is auto-flagged/rejected.
10/ YouTube hasn't done anything to go out and get this material. I foisted it on their servers. Nevertheless, because I uploaded it, YouTube has "acquired" it and I can demand payment! Image
11/ That makes no sense, and has nothing to do with concerns about platforms seeking out content and not compensating fairly for it.

At a *bare minimum*, "access" should not apply to any content uploaded/posted directly to a platform. That's an entirely different thing. Image
12/ Even if the bill made sure platforms didn't have to pay for content they chose not to carry, what happens when a platform *does* carry the content, but decides not to monetize it under their monetization policies? Surely that's an area of moderation that JCPA could denigrate. Image
13/ One possible (if imperfect) way to fix that could be an affirmative defense. If a platform shows it applied generally applicable moderation/monetization policies in good faith, based on content's objectionable nature, they cannot be forced to pay or be subject to liability. Image
14/ These are not perfect solutions, and they only begin to address JCPA's *many* issues. This bill is still nowhere near ready to see action.

We'll find out if the amended language will be marked up in ~30 min. Until then, check out last night's letter: techfreedom.org/wp-content/upl…
15/ Apparently committee members haven't reached any kind of deal, so the bill is being held over again.

Which is good because I was *just* thinking how much I miss & long for things like spending long hours and late nights on a big filing/trial prep only for it to settle day-of

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More from @AriCohn

Jan 31
Senate Judiciary is having a hearing today on "Big Tech and the Online Child Sexual Exploitation Crisis," in which senators will yell at a bunch of social media platform CEOs and likely say some very wrong things. Follow along in this thread, if you dare.

judiciary.senate.gov/committee-acti…
2/ Durbin kicks off by showing a video from victims of online CSE and their parents. Undeniably horrible stories, and if the hearing really focuses exclusively on platform efforts to combat CSE/CSAM, I'll be on board--platforms SHOULD be doing more.

But that's unlikely.
3/ And not for nothing, Durbin's STOP CSAM Act swings the pendulum too far, threatening end-to-end encryption and incentivizing takedowns of lawful content and campaigns of false reporting. EFF has a good explainer: eff.org/deeplinks/2023…
Read 111 tweets
Aug 8, 2023
1/ I must respectfully take issue with this piece, for a few reasons.

First, as a normative matter, to mee it comes too close to equating the harms of CSAM with the effects of minors looking at porn. Whatever you think about the latter, the former is *inestimably* worse.
2/ Second, the "secondary effects doctrine" is a heaping MESS that gives government an end-run around the First Amendment, even for non-porn speech. Expanding it to the online world rather than physical locations would be terrible.

SED should be retired, not broadened.
3/ Third, there is no distinction between the age verification mandates being proposed now, and the ones struck down in the Great COPA Wars, practically or constitutionally.

The curtailment was in fact being forced to verify your identity before accessing disfavored content. Image
Read 14 tweets
Jun 30, 2023
1/ So @MiamiSeaquarium, which tortures Orcas by keeping them in confined spaces, have filed suit because Phil published drone pictures and criticized them.

It's evident that they didn't like being criticized, and are trying to shut him up.

Complaint: https://t.co/EwdXgkcQOvtinyurl.com/muhbjzr7
2/ I'm no expert in Bird Law, so the claims involving drones are not in my wheelhouse.

But @MiamiSeaquarium also alleged defamation (a good indicator of SLAPPiness)--kind of.

It seems that their lawyers are not entirely competent. This is the entirety of the defamation count:
@MiamiSeaquarium 3/ This is plainly a deficient pleading. Why?

Because notice what's missing: any identification of the allegedly defamatory statements.

You can't just waltz into court and say "they said defamatory things." You have to actually say what those things were.
Read 8 tweets
Jun 16, 2023
1/ On Wednesday @TechFreedomfiled an amicus brief with the 6th Circuit in Johnson v. @kathygriffin.

Our PR and the brief can be found here: techfreedom.org/protect-intern…

In case you're unfamiliar with the litigation, let me refresh your memory & explain why it's important.
2/ In April 2021, a video started circulating on social media showing a man accosting a teen taking pre-prom pictures with his boyfriend at a hotel restaurant, because the teen was wearing a dress.

Super normal stuff.

When Kathy saw the video, she tweeted about it a few times.
3/ In her first tweet, she identified the man as Sam Johnson, and noted that he worked at VisuWell, a telehealth software company from what I gather.

A couple tweets later, VisuWell announced Johnson's firing. Griffin asked if he was going to remain on the board. They said no.
Read 27 tweets
May 24, 2023
Oh hey, did you know that you can wreck a @Target display and doing that enough will get them to pull the products you're vandalizing about? Image
The War on Christmas is gonna be EPIC this year. Get ready, @Target!
@AskTarget how many people, exactly, need to trash your terrible produce section before you cede ground and stop trying to sell mushy apples?
Read 4 tweets
May 21, 2023
I'm sorry that you don't believe that people accused of crimes deserve legal representation and for the state to prove their case--kind of a fundamental principle that this country was founded on.

Someone here is "scum," but it's not who you think.

Maybe move to Qatar.
Seems @wontbackdown83 deleted his original tweet so that he could turn off replies. Very brave man.
He didn't even last 20 minutes. Sad. Image
Read 5 tweets

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