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Transcript

The Platform to Prison Pipeline · Ctrl-Alt-Speech

• 0:00
  Ben Whitelaw: Right, mate.
• 0:00
  Ben Whitelaw: So Substack, as you know, has caused a fair bit of attention over the past few years for its moderation policies, but its homepage prompt offers a much more kind of concerned, caring view that kind of belies the controversy about its moderation.
• 0:17
  Ben Whitelaw: I'm asking you today.
• 0:18
  Ben Whitelaw: What's on your mind?
• 0:21
  Mike Masnick: Well, Ben, I'm wondering as we go through this podcast, how much of it is going to cause people on all sides of all issues to yell at me and complain that I.
• 0:32
  Mike Masnick: Couldn't possibly understand what is happening in this or that country because we have lots of nuanced stories today that seem to upset people or people have very strong opinions on
• 0:43
  Ben Whitelaw: Oh God.
• 0:44
  Ben Whitelaw: Oh God.
• 0:44
  Ben Whitelaw: I can't wait.
• 0:46
  Mike Masnick: What's on your mind?
• 0:47
  Ben Whitelaw: So my mind is really the question of how do I get citizenship of four countries?
• 0:55
  Ben Whitelaw: How can, how can I go about getting more passports?
• 0:57
  Ben Whitelaw: Because one of the protagonists of one of the big stories this week certainly has found out how to do that.
• 1:04
  Mike Masnick: Well, it didn't, didn't work out well for him because he's sitting in jail.
• 1:07
  Mike Masnick: So
• 1:09
  Ben Whitelaw: Indeed.
• 1:18
  Ben Whitelaw: Hello and welcome to Ctrl-Alt-Speech, your weekly roundup of the major stories about online speech, content moderation, and internet regulation.
• 1:26
  Ben Whitelaw: This week's episode is brought to you with the financial support from the future of online trust and safety fund.
• 1:32
  Ben Whitelaw: My name is Ben Whitelaw.
• 1:33
  Ben Whitelaw: I'm back in the hot seat this week, Mike.
• 1:35
  Ben Whitelaw: Thank you for leading the charge last week with a brilliant Daphne Keller.
• 1:39
  Ben Whitelaw: And, uh, yeah, good to be back.
• 1:41
  Ben Whitelaw: How are things?
• 1:42
  Mike Masnick: yeah, things are good.
• 1:44
  Mike Masnick: How was, uh, how was your time away?
• 1:46
  Ben Whitelaw: It's very good.
• 1:47
  Ben Whitelaw: Um, I was in the Scottish Highlands, and yeah, I saw some beautiful scenery, ate some deep fried pizza, all of the good Scottish things that one does when north of the border.
• 2:00
  Mike Masnick: Yes.
• 2:00
  Mike Masnick: Yes.
• 2:01
  Mike Masnick: were discussing that as the, the Scottish delicacy is deep fried, whatever.
• 2:05
  Mike Masnick: There appears to be some sort of requirement for, people in Scotland to get deep fryers and then figure out how to throw absolutely anything into them.
• 2:15
  Ben Whitelaw: yeah, yeah, it's true.
• 2:16
  Ben Whitelaw: And I can say this as somebody who's half Scottish, although my accent doesn't show it, but, um, there's a reason why Scots have some of the worst health outcomes in the world.
• 2:25
  Ben Whitelaw: You know, but it was delicious and I would thoroughly recommend it.
• 2:28
  Ben Whitelaw: and I listened to the episode with you and Daphne on the way back on, I was got the train home, the Caledonian sleeper and, um, listen to you and Daphne on, on route back, which was a great episode.
• 2:37
  Ben Whitelaw: Um, how is she having alongside you?
• 2:40
  Mike Masnick: Oh, it was wonderful.
• 2:40
  Mike Masnick: Uh, you know, Daphne's great.
• 2:42
  Mike Masnick: I've obviously known her for a long time and, she's obviously super, super knowledgeable and detailed and thoughtful on all of these issues.
• 2:49
  Mike Masnick: So, yeah, having her on the podcast was great.
• 2:52
  Mike Masnick: And there were a bunch of really good stories for her to dig into because a lot of details, a lot of nuance, a lot of the legal issues that she is an expert on.
• 3:00
  Mike Masnick: So, uh, I really enjoyed it.
• 3:02
  Ben Whitelaw: Yeah, fantastic.
• 3:03
  Ben Whitelaw: Um, we've got a whole raft of stories this week that we, we have to cover.
• 3:07
  Ben Whitelaw: You know, there's some weeks we struggled for stories a little bit this week.
• 3:11
  Ben Whitelaw: There are very clear stories for us to dig into.
• 3:14
  Ben Whitelaw: So I can't wait to get into that.
• 3:15
  Ben Whitelaw: before we do so just want to thank the folks who, on the back of our plea a couple of weeks ago to share ratings and reviews have given us five stars.
• 3:25
  Ben Whitelaw: On, their favorite podcast platform, really appreciate it where trending well, on those platforms.
• 3:31
  Ben Whitelaw: Now, not many folks if any, have actually given us a written review and it would be great to have your feedback in, written form as well as in style form.
• 3:40
  Ben Whitelaw: We, we'd love to hear from our listeners.
• 3:43
  Ben Whitelaw: so if you get a chance, if you enjoyed today's episode, don't forget to do that.
• 3:47
  Ben Whitelaw: you can also be like, you know, the listener, who gave us one star right back at the start, if you
• 3:54
  Mike Masnick: we'd even launched.
• 3:55
  Mike Masnick: Yes, the techter troll, our resident troll, decided that he was going to pre poison the reviews of this podcast before we launched, which appears to still be our only one star.
• 4:06
  Mike Masnick: So, uh, hopefully you'll give us more than that, but also we would like written reviews.
• 4:11
  Mike Masnick: Written reviews really do help.
• 4:12
  Mike Masnick: They give us feedback, first of all, but also they let other people know.
• 4:16
  Mike Masnick: know that the podcast is here and that it is good and that it is enjoyable.
• 4:20
  Mike Masnick: And I know that some of the recommendation systems, including Apple's, which is the biggest one, rely on the fact that if you're getting reviews and ratings, that helps them decide to promote you to others.
• 4:31
  Mike Masnick: So if you would like other people to be hearing this podcast also, which helps us, then please go write a review and make it nice and interesting.
• 4:41
  Ben Whitelaw: Yeah, we really appreciate it.
• 4:43
  Ben Whitelaw: Okay.
• 4:43
  Ben Whitelaw: So, let's make, uh, an episode that people feel that they can leave a, uh, a five star review for Mike.
• 4:50
  Ben Whitelaw: That's
• 4:51
  Mike Masnick: Oh my gosh, so much pressure, so much pressure.
• 4:55
  Ben Whitelaw: um, let's give them something to talk about.
• 4:56
  Ben Whitelaw: So let's dive straight in.
• 4:58
  Ben Whitelaw: We've got a whole tranche of stories that we want to get through.
• 5:01
  Ben Whitelaw: So we're going to start with, a kind of story that we have.
• 5:05
  Ben Whitelaw: Touched on a few times before a platform that we, know and love Tik Tok and, a big ruling that came out, in the latter part of this week, which you and many other very, knowledgeable internet experts are not happy about.
• 5:20
  Ben Whitelaw: That's fair to say.
• 5:22
  Ben Whitelaw: Talk us through this third circuit ruling.
• 5:24
  Mike Masnick: Yeah.
• 5:25
  Mike Masnick: So, this really was really a bit of surprise and, I think took a lot of people by surprise, people weren't following this case very closely.
• 5:33
  Mike Masnick: I think because most people assume that it would go the normal way that a case like this goes, and it went a very, very different way.
• 5:40
  Mike Masnick: And so.
• 5:41
  Mike Masnick: The details of the case are horrific and it is often said that, you know, facts or bad cases make bad law.
• 5:49
  Mike Masnick: And this seems to be one of those cases where there are tragic circumstances and a tragic story behind it, which is that, You know, there are various challenges that happen on TikTok that, go viral and a bunch of people do them.
• 6:05
  Mike Masnick: There have been some, I would say mostly.
• 6:09
  Mike Masnick: exaggerated moral panics about some of the challenges being dangerous, and then kids imitating them and getting hurt, or in some cases dying.
• 6:19
  Mike Masnick: The actual incidents of those happening to be fairly rare.
• 6:25
  Mike Masnick: This is one case where that does appear to have happened.
• 6:28
  Mike Masnick: There was a blackout challenge and it From the facts of the case, it appears that one of these blackout challenges was seen on TikTok by a 10 year old who attempted to replicate the challenge and ended up dying in the process.
• 6:44
  Mike Masnick: This is, there's no two ways around that.
• 6:47
  Mike Masnick: That is tragic and horrible in every aspect of it.
• 6:51
  Mike Masnick: The mother of the child then sued TikTok, And claim that they had legal liability for the, death of her child.
• 7:02
  Mike Masnick: TikTok used a few defenses including section 230 and the district court threw it out on section 230 grounds, which every other case of this nature, that has happened.
• 7:13
  Mike Masnick: the content of the challenge was not created by TikTok and therefore they don't have liability for that.
• 7:20
  Mike Masnick: So then it went up to the Third Circuit, and I think the reason everyone sort of had ignored this case was because they expected the Third Circuit would rule like every other court and sort of uphold the Section 230 ruling.
• 7:32
  Mike Masnick: The liability is not on TikTok, it is a horrible situation, everybody agrees, but it is not TikTok's responsibility.
• 7:39
  Mike Masnick: The Third Circuit did not do that.
• 7:41
  Mike Masnick: And they issued this very strange ruling, and it's strange in a few different ways.
• 7:46
  Mike Masnick: One, in that it is extraordinarily short.
• 7:49
  Mike Masnick: There is very little in the way of detail, and in fact, there are a lot of footnotes and it is possible that there is more text in the footnotes than the actual ruling, which is weird, and basically it says, you know what, recommendation algorithms are not covered by section 230.
• 8:11
  Mike Masnick: Now, there is an argument that some people have made that they should not be.
• 8:17
  Mike Masnick: And that there, are ways to get to that legally.
• 8:20
  Mike Masnick: That is not how any other court has ruled to date.
• 8:23
  Mike Masnick: There are reasons why I think that is wrong, but there is a way to make that argument that is.
• 8:30
  Mike Masnick: you know, understandable.
• 8:32
  Mike Masnick: The third circuit did not do any of that.
• 8:34
  Mike Masnick: It basically just jumped ahead and said, well, we've decided that it is not.
• 8:40
  Mike Masnick: Now it does acknowledge, and I'll explain sort of what little reasoning there is in a second, but they do acknowledge, and the way appeals courts work is you have a three judge panel who is reviewing it.
• 8:52
  Mike Masnick: So the three judges all agreed on this.
• 8:55
  Mike Masnick: They do admit that this appears to go against.
• 8:58
  Mike Masnick: Basically, every other circuit court ruling, including a previous ruling in the third circuit, which in theory, they should be bound by.
• 9:08
  Mike Masnick: and so there is this one footnote that goes across three pages, like that's how big the footnote is, is that the footnote itself is three pages long.
• 9:17
  Mike Masnick: That lists out all of the cases that they are going against.
• 9:21
  Mike Masnick: That's just very strange.
• 9:23
  Mike Masnick: This is not something you normally see.
• 9:26
  Mike Masnick: and, in my mind, is the point at which one, two, or all three of the judges on this panel should have said, maybe we are doing something wrong.
• 9:36
  Ben Whitelaw: and, and so the, the footnote is there to kind of basically justify the decision.
• 9:42
  Ben Whitelaw: It sounds like in a way.
• 9:45
  Mike Masnick: Sort of, but not really, right?
• 9:46
  Mike Masnick: Because, well, first of all, like, you usually shouldn't be justifying the main issue in your ruling in a footnote, right?
• 9:52
  Mike Masnick: Like, that's Not usually how it works.
• 9:54
  Mike Masnick: It's basically to say we acknowledge that.
• 9:59
  Mike Masnick: basically everybody disagrees with us, but we still think we're right.
• 10:03
  Mike Masnick: Now, normally, if you were to do that, you would then have many, many pages of detailed analysis with citations explaining why you are doing that and what the legal basis for that is.
• 10:18
  Mike Masnick: They don't really do that here.
• 10:20
  Mike Masnick: What they do is they point to the Moody ruling, which is, we generally had referred to as the net choice cases, but now people refer to it as the Moody ruling
• 10:30
  Ben Whitelaw: Yeah.
• 10:31
  Mike Masnick: in the Supreme court, which was case over, which we've talked about a lot on the podcast, whether or not Florida and Texas can pass laws that, that, order companies to moderate in a certain way.
• 10:42
  Mike Masnick: And based on.
• 10:45
  Mike Masnick: I believe just a complete misreading of the Moody ruling.
• 10:51
  Mike Masnick: It's sort of a twisted, a twisted interpretation of kind of a throwaway comment that was first made in the oral arguments, and I've heard it.
• 11:02
  Mike Masnick: Basically crackpots in the past.
• 11:05
  Mike Masnick: and justices Clarence Thomas and Neil Gorsuch have brought this up.
• 11:11
  Mike Masnick: They brought it up during oral arguments in, in the net choice cases, and they've brought it up a few other times where the argument is.
• 11:17
  Mike Masnick: So section two 30 is pretty clear.
• 11:20
  Mike Masnick: It's very short.
• 11:22
  Mike Masnick: You know, the, the operative part is 26 words famously.
• 11:25
  Mike Masnick: And it is saying that as an internet service, you are not.
• 11:32
  Mike Masnick: Liable for publishing activity done to publish third party content.
• 11:38
  Mike Masnick: You're not responsible for the content that you are publishing.
• 11:43
  Mike Masnick: And the sort of crackpot idea was that when complained about these laws regulating their content moderation practices, they argued that content moderation practices are editorial decisions, which are therefore protected by the First Amendment.
• 12:02
  Ben Whitelaw: Mm hmm.
• 12:03
  Mike Masnick: So the argument is Clarence Thomas and Neil Gorsuch made was that This is a contradiction to Section 230, saying that content moderation is protected by the First Amendment contradicts Section 230.
• 12:17
  Mike Masnick: It doesn't, but they're thinking for why it is, is that you are saying content moderation is expressive activity, because it has to be expressive activity to be protected by the First Amendment, so the editorial choices are expressive.
• 12:31
  Mike Masnick: And then in Section 230, you're saying we have nothing to do with this.
• 12:36
  Mike Masnick: So don't hold us liable for it because it's not us, which is not, that's not what section two 30 is saying.
• 12:42
  Mike Masnick: Section two 30 is not saying we have nothing to do with this.
• 12:44
  Mike Masnick: In fact, section two 30 is pretty explicit.
• 12:47
  Mike Masnick: You are publishing.
• 12:48
  Mike Masnick: This content, you are distributing this content, but you shouldn't be held liable for the content because it wasn't created by you.
• 12:56
  Mike Masnick: There's this, it's a little bit in the weeds, but there's this separation of the creation of the content.
• 13:03
  Mike Masnick: The publishing of the content and the distribution of the content, and arguably the recommendation of the content, these are all different elements.
• 13:10
  Mike Masnick: And what Section 230 is saying is that the only one who is liable is the one who created the content, but publishing, distribution, recommendation, those are all First Amendment protected things.
• 13:23
  Mike Masnick: But you, you just, the only one who could be liable for harms from the content is that who created it.
• 13:30
  Mike Masnick: But, but the argument that, Gorsuch Thomas made, and now the third circuit is saying is that by saying that the publishing activity, the editorial activity, the recommendation is protected expression.
• 13:45
  Mike Masnick: You are saying that it is no longer third party content.
• 13:49
  Mike Masnick: You are, are taking ownership of that.
• 13:52
  Ben Whitelaw: By deciding what gets distributed.
• 13:54
  Ben Whitelaw: Right.
• 13:55
  Mike Masnick: which is the, exact thing that section two 30 was literally written to overrule.
• 14:01
  Ben Whitelaw: Okay.
• 14:02
  Ben Whitelaw: and is that, cause obviously section 230 was written a long time ago
• 14:06
  Mike Masnick: Yes.
• 14:06
  Ben Whitelaw: and I have seen some kind of commentary since this ruling came out that said basically section 230 couldn't have predicted the nature of algorithms and couldn't have kind of predicted that the distribution would be so kind of inherent in the process.
• 14:21
  Mike Masnick: Yeah.
• 14:21
  Ben Whitelaw: Is, is that kind of where the, where this ruling gets at is this kind of question of whether back in the day, back in 1996, when it was kind of created and written, it also covered the distribution and the dissemination in the way that, about,
• 14:37
  Mike Masnick: So.
• 14:38
  Mike Masnick: I think what is correct is that the internet is different and the way social media works is different than in 1996 when section 230 was passed, but the fundamentals have not changed, which is that the idea behind section 230 was that the publishing activity that an internet service does for third party content.
• 15:00
  Mike Masnick: Is protected from liability from any harms or violations that come from that content and the way it has been judged going back in history has always been that.
• 15:12
  Mike Masnick: you are protected for traditional publishing activities.
• 15:16
  Mike Masnick: There was the sort of famous case was the Zeron case.
• 15:19
  Mike Masnick: There's also the Barnes case in the ninth circuit.
• 15:21
  Mike Masnick: There are all these cases that basically say publishing related activity for third party content is protected.
• 15:27
  Mike Masnick: And that's not as crazy an idea as some people now think it is.
• 15:32
  Mike Masnick: But.
• 15:33
  Ben Whitelaw: um,
• 15:34
  Mike Masnick: Because you have things like bookstores have recommended books, right?
• 15:40
  Mike Masnick: So, you know, if you walk into a bookstore, there'll be a shelf of like, staff choices or whatever.
• 15:46
  Mike Masnick: If a bookstore recommends a book that has defamatory content, you would think it's probably a little weird to then sue the bookstore because you said, well, they recommended this defamatory book, therefore they are responsible for the defamation.
• 16:00
  Mike Masnick: That seems a little bit strange because you would say, well, they don't, they didn't know that that was defamatory.
• 16:06
  Mike Masnick: They just thought it was a good book or a book that people might want to buy or something like that.
• 16:11
  Mike Masnick: So in general, like the liability principles being, you know, on the person who actually created the content makes sense.
• 16:18
  Mike Masnick: And we have another example, and I mentioned this in my article.
• 16:21
  Mike Masnick: There's a, uh, a case that goes back many years, pre internet, well, depending on where, very early internet, existed, where there was a, an encyclopedia of mushrooms that was published.
• 16:35
  Mike Masnick: And it said there was a certain mushroom that was edible, and it turned out it's not, which is bad.
• 16:42
  Mike Masnick: And people got very sick from eating this mushroom that the Encyclopedia of Mushrooms said was edible.
• 16:47
  Mike Masnick: And the publisher was sued.
• 16:48
  Mike Masnick: And what the court said was the publisher is not liable because they don't have a duty to have figured out whether or not every single thing in that book is accurate and true.
• 17:01
  Mike Masnick: It is the author.
• 17:02
  Mike Masnick: You could, you could, sue the author, but the publisher is not.
• 17:06
  Mike Masnick: And so we already have these concepts where publishers and distributors, And recommenders have different levels of protection from the, content authors.
• 17:16
  Mike Masnick: And section 230 is really there to sort of enforce that and make that clear and not have to go through a really complicated legal process to figure out where the liability applies and what the court is saying here makes no sense in that it is saying that as soon as you recommend something.
• 17:35
  Mike Masnick: You have effectively embraced that content as your own and said that it is now first party speech.
• 17:43
  Mike Masnick: so this is what the ruling says.
• 17:45
  Mike Masnick: Once you recommend content, it's no longer third party speech, which would protect you under section 230.
• 17:51
  Mike Masnick: It's now first party speech.
• 17:52
  Mike Masnick: It's your speech.
• 17:53
  Mike Masnick: And they're saying that, that this is true because of.
• 17:57
  Mike Masnick: Under the Moody ruling, the companies were arguing that we're protected in the first amendment, but that gets the analysis wrong because it assumes that you're only protected under the first amendment for first party speech, which is not true, which is all of these publishing and distribution examples going back in history, past the beginning of the internet, we've said there are different levels of liability and different types of liability.
• 18:21
  Ben Whitelaw: um,
• 18:22
  Mike Masnick: And here they're saying, no, like it all wraps into one.
• 18:24
  Mike Masnick: And as soon as you recommend something, you have now taken on the liability for that.
• 18:29
  Ben Whitelaw: yeah.
• 18:30
  Mike Masnick: that's really problematic.
• 18:31
  Mike Masnick: It was especially without any sort of deep analysis.
• 18:33
  Mike Masnick: They, they literally just kind of rushed by it and say, because of this Moody ruling where they said this thing, which they didn't say it was mentioned, not in the majority ruling.
• 18:43
  Mike Masnick: It was mentioned by people in the discussion about it.
• 18:46
  Mike Masnick: And the third circuit seems to think that it's like a core finding of the Moody ruling, which is not, it's just not true.
• 18:52
  Ben Whitelaw: they've run with it, haven't they?
• 18:53
  Ben Whitelaw: And they, and they've ended up here.
• 18:54
  Ben Whitelaw: What, what is the kind of implications of this case?
• 18:57
  Ben Whitelaw: If we kind of fast forward a little bit and I want, I want us to kind of move on to some of the other stories we've got, but like, what, what are the implications of this case?
• 19:04
  Ben Whitelaw: You know, it's, it's, it's, it's.
• 19:04
  Ben Whitelaw: What is happening is being handed down to a, a lower court, I believe.
• 19:08
  Ben Whitelaw: where do you see this going and what are the tangible impacts on, on platforms of this, if this doesn't,
• 19:14
  Mike Masnick: So it, this becomes a big deal.
• 19:15
  Mike Masnick: It depends on how TikTok wants to handle it because they're, defendant in the case.
• 19:19
  Mike Masnick: So what will likely happen is that they'll ask the entire third circuit to review.
• 19:24
  Mike Masnick: It's called an en banc review.
• 19:25
  Mike Masnick: As I said, this is a three panel, but you can ask the court to do an en banc review, which is all of The judges or a larger panel of the judges review the case, I, which is most likely the next step.
• 19:36
  Mike Masnick: And then once they do that, I imagine a lot of people, a lot of, amicus briefs, people will weigh in and be like, Hey, this is crazy.
• 19:43
  Mike Masnick: and.
• 19:44
  Mike Masnick: And.
• 19:45
  Mike Masnick: Then after that, it will almost certainly go to the Supreme court.
• 19:47
  Mike Masnick: It has to go to the Supreme court because like, as they say in a footnote, like we are disagreeing, we are outright disagreeing with every other court, including the third circuit.
• 19:56
  Mike Masnick: When we have ruled on this issue, that's the kind of thing the Supreme court likes.
• 20:00
  Mike Masnick: And so I imagine that at some point the Supreme court will take this up.
• 20:03
  Mike Masnick: If it goes to an en banc review, that would probably be next year.
• 20:07
  Mike Masnick: We'll cover that.
• 20:08
  Mike Masnick: And then a year later, it'll go to the Supreme Court.
• 20:10
  Mike Masnick: So we're, we're probably talking another two years before this has actually worked out.
• 20:14
  Mike Masnick: But, you know, the important point is that, if you think about this, if any recommendation becomes first party speech and section two 30, no longer protects it.
• 20:23
  Mike Masnick: We are right back to the world that why section two 30 was created, which was the Stratton Oakmont case, where they said, if you do any moderation at all, the things you don't moderate are suddenly your speech and you take liability for it.
• 20:35
  Mike Masnick: Here, we're saying the same thing, except anything that goes into a recommendation engine automatically becomes your speech and you take liability for it.
• 20:42
  Mike Masnick: That's the same situation that we had with Stratton Oakmont, and that was the whole reason why Section 230 was written in response to that.
• 20:48
  Mike Masnick: So the idea that the court here is saying that Section 230 means the exact thing that it was written to overrule seems absolutely crazy.
• 20:57
  Mike Masnick: And so we'll, we'll see, I hope that the third circuit like comes to its senses and then the non bonk review, they changed this, but I've seen some people saying that this is like a really important and substantial ruling.
• 21:07
  Mike Masnick: It is not substantial in any way.
• 21:09
  Mike Masnick: There's no one who could read this and say it is substantial.
• 21:11
  Mike Masnick: It is important only in that it is.
• 21:13
  Mike Masnick: Absolutely crazy.
• 21:15
  Mike Masnick: And even people who like disagree with me on section 230, who I think are, you know, serious scholars have said like, yeah, this is, this ruling is crazy.
• 21:22
  Mike Masnick: It just makes no sense.
• 21:23
  Mike Masnick: And there's no real explanation for it.
• 21:26
  Ben Whitelaw: Okay.
• 21:27
  Ben Whitelaw: So hopefully we'll get to read and review and discuss a more kind of robust, case ruling that maybe gets into the, the issue a bit more.
• 21:35
  Ben Whitelaw: but yeah, super interesting.
• 21:36
  Ben Whitelaw: Uh, thanks for talking us through that.
• 21:37
  Ben Whitelaw: so the next section of the podcast has a series of stories that are linked.
• 21:41
  Ben Whitelaw: And I'm going to call this the CEO is being made to sweat.
• 21:45
  Ben Whitelaw: section of control or speech and, and the listeners will understand why in a second.
• 21:50
  Ben Whitelaw: So you're tuning in, you will have heard about the arrest of the Telegram CEO, Pavel last weekend.
• 21:58
  Ben Whitelaw: And there have been a couple of other CEOs who have been, in the spotlight this week.
• 22:03
  Ben Whitelaw: And we're going to talk about them a little bit together because Mike and I think this is a, an interesting pattern, interesting trend that we're starting to see, but to give you a bit of an update on the Jirov story, if you haven't been following, this is the, relatively kind of.
• 22:18
  Ben Whitelaw: Major news last Saturday that the of Telegram was arrested as he landed in France on flight from Azerbaijan and was arrested on 12 charges.
• 22:30
  Ben Whitelaw: On Wednesday we found out that he had been Had six charges brought against him, including, complicity in spreading CSAM and, distributing drugs and a refusal to cooperate with French authorities.
• 22:44
  Ben Whitelaw: So this has been made to be a kind of, essentially a story about the arrest of a, of a platform CEO on the basis of its content moderation, which I think has, Really ignited a debate around, online speech, what constitutes free speech.
• 22:57
  Ben Whitelaw: And you've written a series of really interesting pieces this week, Mike, trying to unpick what we know and don't know.
• 23:04
  Ben Whitelaw: what's interesting to you about this particular story, as you've been following it as it's unfolded.
• 23:09
  Mike Masnick: Yeah, the main thing is, is how much we don't know, and this is why it's been interesting because I've seen a whole bunch of people sort of retreat to their corners on this and, and feel very sure about whether or not this is a travesty of justice or whether or not this is justice served.
• 23:23
  Mike Masnick: And I don't know that we know where on that spectrum this really lies, and it could be at either end of the extreme or more likely somewhere in the middle because the charges are fairly vague.
• 23:36
  Mike Masnick: And as written, the charges in theory could apply to lots of CEOs, right?
• 23:42
  Mike Masnick: And this is an issue that comes up a lot of times with social media or any internet service that allows for user content to be included in anything, which is that people will do bad things and people will upload bad content.
• 23:55
  Mike Masnick: And often that content is illegal.
• 23:57
  Mike Masnick: has been said that if you have an internet platform that allows for user generated content, you have a child sexual abuse material problem.
• 24:05
  Mike Masnick: That.
• 24:06
  Mike Masnick: happens.
• 24:06
  Mike Masnick: That is the nature, unfortunately, of the internet.
• 24:09
  Mike Masnick: And we've talked about that other contexts before.
• 24:12
  Mike Masnick: But the question is, where's the trigger between, you have that problem or you have criminal liability for that content existing on your platform?
• 24:21
  Mike Masnick: Now with Telegram, we have discussed in the past multiple times, the fact that they do seem to be at the center of everything.
• 24:28
  Mike Masnick: terrible.
• 24:29
  Mike Masnick: Uh, the NCMEC report that came out that we talked about, the NCMEC report from Stanford, Telegram does not report any CSAM that is found on its platform to NCMEC.
• 24:41
  Mike Masnick: That is probably bad.
• 24:43
  Mike Masnick: And it is, there's a very high likelihood that it is breaking the law and doing that, they might argue that they are not a U S company and they don't have to obey U S laws.
• 24:53
  Mike Masnick: They do operate in the U S there is a decent chance that some of their infrastructure is in the U S.
• 24:58
  Mike Masnick: so that all seems fairly.
• 25:01
  Mike Masnick: Questionable, there's lots of reports of other horrible content.
• 25:06
  Mike Masnick: And one of the things that is important here to discuss is that a lot of people don't sort of know how to classify Telegram and Telegram itself always positions itself as a secure messenger.
• 25:19
  Mike Masnick: Which is incredibly misleading, right?
• 25:21
  Mike Masnick: So they positioned themselves as sort of like Signal, which is an encrypted messaging app, but that is not true for the most part, for the most part.
• 25:29
  Mike Masnick: Telegram is much more like social media there's this public groups.
• 25:34
  Mike Masnick: It's just, you know, instead of one large group, like a lot of social media, it's more a bunch of different channels, but those channels are all public.
• 25:41
  Mike Masnick: They're not encrypted in any way.
• 25:43
  Mike Masnick: The messaging component of it is actually a much smaller component.
• 25:47
  Mike Masnick: And even that is not really.
• 25:50
  Mike Masnick: Encrypted there you can turn on encryption for one-to-one communications, but it ha you have to choose to turn it on.
• 25:57
  Mike Masnick: Most people probably don't do that.
• 25:59
  Mike Masnick: So most one-to-one communications are not encrypted.
• 26:01
  Mike Masnick: And as soon as you add a third person to it, the encryption is not an option.
• 26:05
  Mike Masnick: So there's a very, very small percentage of communication on Telegram that is encrypted.
• 26:10
  Mike Masnick: most of it is not so, therefore Telegram has visibility into this content.
• 26:14
  Ben Whitelaw: And it's worth noting that that that's an important point to make because, the French authorities, have gone to telegram and gone to the founders and asked for specific information, about a telegram user who has, made.
• 26:27
  Ben Whitelaw: threats of rape and who's sent messages.
• 26:30
  Ben Whitelaw: So it's asked for user information earlier this year.
• 26:33
  Ben Whitelaw: And one of the reasons why this arrest has taken place and charges have been brought is because Telegram basically refused to cooperate and didn't give the information, right?
• 26:41
  Ben Whitelaw: So that status of kind of somewhere between encrypted messaging platform, which allows you to say to governments, we're not providing any information to you and, more public.
• 26:52
  Ben Whitelaw: network where, you know, that information is, collected Is I think a really key to, point out in this case.
• 26:59
  Ben Whitelaw: Right.
• 26:59
  Mike Masnick: Yeah.
• 27:00
  Mike Masnick: So right signal at times, you know, law enforcement will go to signal and ask for information and signal will say, we don't have that information.
• 27:06
  Mike Masnick: We cannot give it to you.
• 27:08
  Mike Masnick: There are some cases with Telegram where there are some elements of encrypted messaging where they might be able to do that, but most cases of content on Telegram, that is not true.
• 27:18
  Mike Masnick: Now there are all different reports and who knows how accurate or honest they are over the years of Telegram claiming to cooperate with law enforcement on certain things.
• 27:28
  Mike Masnick: Whether it is pulling down certain content or whether it is sharing information with law enforcement and there have been stories, in the past in Europe, in Russia and other places and sometimes some of those stories have been a little bit, concerning where there were stories of people planning things, in opposition to the Russian government that suddenly the Russian government seemed to know that some people were saying, wait a second, like, is Telegram safe for communication?
• 27:53
  Mike Masnick: If it is an opposition to the Russian government, Durov of course is, Russian, though there are questions about whether or not he is liked by Russia or not, uh, he apparently fled Russia and had to sell his first company.
• 28:07
  Ben Whitelaw: Yeah.
• 28:07
  Ben Whitelaw: He also has, as I alluded to at the top of the episode, three other citizenships of, different countries, including France, St.
• 28:14
  Ben Whitelaw: Kitts and Nevis and,
• 28:17
  Mike Masnick: Emirates.
• 28:18
  Ben Whitelaw: and the Emirates.
• 28:18
  Ben Whitelaw: Yeah.
• 28:19
  Ben Whitelaw: So,
• 28:19
  Mike Masnick: citizenship.
• 28:20
  Ben Whitelaw: which is where Telegram is based.
• 28:22
  Ben Whitelaw: Um, so he is a man with many, passports.
• 28:26
  Mike Masnick: Yes.
• 28:27
  Mike Masnick: Um, and so, what it really comes down to is, there are a bunch of different potential charges and other things that were brought up, including like encryption, where France, does have an import export restriction on encryption, which is, Unfortunate because that's, it's kind of a dumb idea, but they have it as this sort of thing where basically you just have to register that you have encryption that you're importing, exporting encryption.
• 28:53
  Mike Masnick: And it's, uh, as I understand it, a fairly simple process, but Telegram didn't do it.
• 28:57
  Mike Masnick: That feels like an add on charge.
• 28:59
  Mike Masnick: the central core to the charges are this idea that.
• 29:02
  Mike Masnick: French law enforcement went to Telegram with specific information about potential criminal activity and Telegram effectively ignored them.
• 29:11
  Mike Masnick: That's probably bad.
• 29:14
  Mike Masnick: And that is not something that a company should be doing.
• 29:16
  Mike Masnick: The question though, still is to what level, and this is what we don't know.
• 29:20
  Mike Masnick: And this is where it's, it's hard to make a real determination on how scary this is.
• 29:25
  Mike Masnick: You It is said, the reports say that there's no indication that, Pavel was involved in the criminal activity, right?
• 29:32
  Mike Masnick: When, when the arrest came, some people were saying maybe he was actually out there sharing CSAM content or terrorist content or something like that, which would be a different, story altogether if he was directly involved.
• 29:42
  Mike Masnick: There's, there's no indication of that.
• 29:44
  Mike Masnick: But, where is the line between, what is criminal activity or what is just like incompetent activity in terms of if law enforcement goes to you and demands information, whether or not you, return that information.
• 29:57
  Mike Masnick: And so the issue here is there was an investigation.
• 30:00
  Mike Masnick: Law Telegram.
• 30:02
  Mike Masnick: It appears Telegram ignored them.
• 30:04
  Mike Masnick: Now, again, even then, there are some cases where you.
• 30:07
  Mike Masnick: You want companies to be able to push back on if the requests for information are ones that they don't think is correct.
• 30:13
  Mike Masnick: And that is, part of functioning society is the ability to say like, you know, we don't think it's appropriate for us.
• 30:19
  Mike Masnick: And there should be a legal process then to say, we're going to push back.
• 30:23
  Mike Masnick: We don't think we should have to hand over this information or we don't think the request is, reasonable or, legal.
• 30:29
  Mike Masnick: but it appears that Telegram just ignored it.
• 30:31
  Mike Masnick: Then the question is, Well, if that's the case, is this a criminal issue that should reach the executives, or is it something that can be taken care of, through a fine or some other injunction or some other legal process that goes against the company itself, rather than the executives.
• 30:50
  Mike Masnick: So the jump here.
• 30:52
  Mike Masnick: To actually arresting the CEO, that feels like a somewhat concerning jump, but again, without the underlying details, we, we just don't know, is there enough there?
• 31:05
  Mike Masnick: Do they have enough evidence that makes that jump reasonable?
• 31:08
  Mike Masnick: And so I keep trying to push back on, you know, the people are saying like, this is a crime against encryption or, uh, an attack on free speech.
• 31:18
  Mike Masnick: It could be, it could turn out that that is the case, but it might also turn out that like, no, he was doing really bad stuff and, totally ignoring law enforcement requests is kind of a recipe for really bad results.
• 31:32
  Mike Masnick: and part of the problem is like the French legal process seems to be that they don't want to tell us the details.
• 31:39
  Ben Whitelaw: Yeah.
• 31:39
  Ben Whitelaw: The details are a bit sketchy on there.
• 31:41
  Ben Whitelaw: And it, it feels like there's, there's more to come out about this story over the coming weeks, I
• 31:46
  Mike Masnick: Yeah.
• 31:46
  Mike Masnick: Yeah.
• 31:47
  Mike Masnick: And, and, but, you know, but people are saying, you know, I think the stories where people are saying like, Oh, this is, a dry run to arrest other CEOs in particular, Elon Musk, I saw a lot of people saying, you know, we're going to go after, they're going to go after Elon Musk next.
• 31:59
  Mike Masnick: And one of his fans was saying like, Oh, you know, don't go to Europe anymore, Elon.
• 32:03
  Mike Masnick: They're going to arrest you next.
• 32:04
  Mike Masnick: I don't, I think that's nonsense.
• 32:05
  Mike Masnick: I don't think that's, that's.
• 32:07
  Mike Masnick: Yeah.
• 32:07
  Mike Masnick: That's not how any of this works.
• 32:09
  Ben Whitelaw: no, no, right.
• 32:10
  Ben Whitelaw: I mean, there's the other interesting part, which is, kind of Jurov's links to Emmanuel Macron.
• 32:16
  Ben Whitelaw: The French president, right.
• 32:17
  Ben Whitelaw: So.
• 32:18
  Ben Whitelaw: was rumors that, when he landed, Girov said that he was in France to meet Macron,
• 32:23
  Mike Masnick: Yeah.
• 32:23
  Mike Masnick: He was, he said he was, he was there to get dinner with Macron.
• 32:26
  Ben Whitelaw: yeah, as reported by a kind of satirical French, magazine.
• 32:29
  Ben Whitelaw: So it's unclear whether that's true.
• 32:31
  Ben Whitelaw: Macron has subsequently said that That's not why he was in the country, but Baccaron has long courted Telegram and Giraud as part of his efforts to kind of make France a beacon of technology and growth and still uses Telegram apparently, even though he's, he's not meant to as part of a French government edict.
• 32:50
  Ben Whitelaw: So he is quite kind of closely linked to this platform.
• 32:55
  Ben Whitelaw: Obviously has been relatively hostile to other big platforms in the past.
• 33:00
  Ben Whitelaw: And so if, French authorities are going to bring a case that's going to potentially embarrass Macron to the extent that it might do, I'm wondering like to what extent it is pretty robust.
• 33:11
  Ben Whitelaw: I mean, again, we don't know the details, but politically, it would be a bit of a nightmare if he, you know,
• 33:17
  Mike Masnick: I mean,
• 33:17
  Ben Whitelaw: to be based on nothing.
• 33:19
  Mike Masnick: yeah.
• 33:19
  Mike Masnick: I mean, Macron has said that the, the government had nothing to do with it.
• 33:22
  Mike Masnick: The prosecution came from the court in Paris, you know, as part of their investigation.
• 33:29
  Mike Masnick: So, you know, I mean, there are different ways in which investigations happen, but basically it didn't come from the, government.
• 33:35
  Mike Masnick: government itself.
• 33:36
  Mike Masnick: It came from the court investigations.
• 33:38
  Mike Masnick: and so there is this like separation, which, who knows how true that is and we'll see, but he, he sort of, washed his hands of it and sort of said like, this is outside of my regime.
• 33:49
  Mike Masnick: It wasn't, wasn't something that he ordered or whatever.
• 33:52
  Ben Whitelaw: Yeah.
• 33:53
  Ben Whitelaw: But yeah, it's, it's a super fascinating story.
• 33:55
  Ben Whitelaw: It's caught a lot of people's attentions and it's really kind of split people in terms of,
• 34:00
  Mike Masnick: Yeah.
• 34:01
  Mike Masnick: And I think it's, you know, it'll, We'll have to see more details will come out and, I just caution people not to jump to either conclusion yet, because it's really just, it's unclear what the specific accusations are and that those will matter an awful lot in determining whether this is an overreach or if it's something that is totally reasonable.
• 34:22
  Ben Whitelaw: yeah, indeed talking of, CEOs kind of scrambling under government pressure, you talked with Daphne last week, Mike, about Elon Musk and his plans in Brazil and, um, you know, It's really interesting to see that we've got an update on this story as well, this week.
• 34:40
  Ben Whitelaw: Brazil, this keeps coming up in the podcast, doesn't
• 34:43
  Mike Masnick: Yeah.
• 34:43
  Mike Masnick: Yeah.
• 34:44
  Mike Masnick: One of these weeks we'll have an Elon free podcast, but it's not this week.
• 34:49
  Mike Masnick: you know, the background we talked about last week where he said he was pulling out of Brazil.
• 34:53
  Mike Masnick: That was after this Supreme court justice, Alexandra de Moraes, who he's been fighting with for months had said that they were going to arrest, an ex employee in Brazil.
• 35:04
  Mike Masnick: Brazil, like a growing number of countries now, have these laws that require there to be a legal representative within the country.
• 35:12
  Mike Masnick: I have somewhat sarcastically referred to these as hostage laws.
• 35:17
  Mike Masnick: The only reason to have a law like that is to have someone that you can jail as a tool to put pressure on the companies.
• 35:24
  Mike Masnick: I find these laws to be sort of deeply cynical and problematic.
• 35:27
  Mike Masnick: Other people disagree with me on that.
• 35:29
  Mike Masnick: I get that.
• 35:30
  Mike Masnick: But.
• 35:31
  Mike Masnick: it feels ridiculous, so his, you know, Elon's response again, in sort of classic, no idea how to be diplomatic, Elon style, he said he was going to shut down all their operations in Brazil, remove all their employees to avoid that, possibility, which DeMores sort of took as a, you know, a provocation and then said, okay, well, we're going to order.
• 35:55
  Mike Masnick: All of X to be banned from Brazil.
• 35:58
  Mike Masnick: As we mentioned last week, this is not unprecedented.
• 36:00
  Mike Masnick: Brazil has done this before they arrested meta employees because WhatsApp would not reveal actual encrypted communication, which they could not reveal because that is the nature of actual encryption, unlike Telegram.
• 36:12
  Mike Masnick: And, so they arrested meta employees and for a period of time, WhatsApp was blocked.
• 36:17
  Mike Masnick: I think it went through three or four different blocks, in Brazil.
• 36:20
  Mike Masnick: So this happens.
• 36:22
  Mike Masnick: I think.
• 36:23
  Mike Masnick: problematic.
• 36:24
  Mike Masnick: I think jailing of employees for not revealing information is problematic.
• 36:28
  Mike Masnick: I think, in that context, I mean, again, like it's, a different situation than the, the Durab, this is not that anyone accusing the, employees in Brazil of criminal behavior or any responsibility for this at all is entirely to put pressure on the, Elon Musk to change their policies.
• 36:45
  Mike Masnick: And that, that's why it's, it feels like a hostage situation.
• 36:49
  Mike Masnick: Why I think the, you know, adding criminal charges there seem just absolutely ridiculous.
• 36:54
  Mike Masnick: The idea then of banning the entire app within the country feels to me like an overreaction.
• 37:01
  Mike Masnick: Yes.
• 37:01
  Mike Masnick: Like the underlying content at issue here and the concerns in Brazil are legitimate.
• 37:05
  Mike Masnick: They are worried about, far right elements using X to organize a potential coup or something of that nature in Brazil, but blocking the entire app just feels like a complete overreact reaction in open society.
• 37:22
  Mike Masnick: It got taken up a notch then this week when after Elon pulled out everything, the judge not only threatened to ban.
• 37:29
  Mike Masnick: X entirely, but also started to freeze Starlink's assets.
• 37:35
  Mike Masnick: And Starlink actually has a pretty big presence in Brazil.
• 37:39
  Mike Masnick: There was a big story earlier this year in the New York Times about how Amazonian tribes were using Starlink and connected to the internet.
• 37:47
  Mike Masnick: And it was actually a really big deal for them.
• 37:49
  Mike Masnick: And now Moraes is saying, you know, we're, we're freezing Starlink's assets and potentially all the Starlink services in Brazil might be frozen.
• 37:57
  Mike Masnick: Cut off too, which would have real harm.
• 37:59
  Mike Masnick: And the end result of all this is just like.
• 38:01
  Mike Masnick: It feels like sort of petty fighting between Moraes and Musk, and they're arguing back and forth, and Musk was posting memes about Moraes, he had one showing Moraes in jail and saying, I'm going to work to make this true, he had another one of a video of Moraes turning into Voldemort from Harry Potter, it's just like, you know, it's just sort of petty, childish stuff.
• 38:21
  Mike Masnick: The real problem is like the sort of people who lose out here are people in Brazil, people who rely on Starlink for internet connectivity, people who rely on X, which, these days don't rely on X for anything, but some people do to communicate with folks.
• 38:34
  Mike Masnick: it just feels like this sort of, Petty battle of like, who's got more power rather than anything legitimate.
• 38:42
  Mike Masnick: And it doesn't lead to sort of, useful policies, but it, reminds me a little bit of, what's happening with the Rav France and threats of criminal, you know, with jailing people and all this stuff, which just, it feels like you're just moving up a notch.
• 38:55
  Mike Masnick: Like there are discussions that we have all the time about regulating internet platforms and how content moderation has to be handled and the failures and successes on all sides of that, but now, you know, the fact that we're moving to jailing people and criminal charges and blocking apps entirely in countries and seizing other assets, it feels like we've gone up a notch.
• 39:17
  Mike Masnick: we've turned things up a pretty significant level, and that seems concerning to me.
• 39:23
  Ben Whitelaw: Yeah.
• 39:24
  Ben Whitelaw: I mean, it's funny that in the attempt to kind of take the higher ground, both Musk and Moraes, who obviously, working for what they believe are the right reasons for, you know, Democracy or for free speech, however they want to frame it, they've kind of sunk lower and lower, you know, they've, they've kind of, we're now, you know, so deep, I think as to, like you say, for Brazilian internet users to be really the people losing out for, there to be no upside to this really, or at least no discernible upside in the future.
• 39:56
  Ben Whitelaw: and all because I think, you know, there's a, two big guys trying to prove out who's more macho than each other.
• 40:01
  Mike Masnick: Yeah, and you know, again, you have these sort of similarities to the Durov situation, where in both cases, they're just kind of, you know, Musk and Durov sort of take this, stupid, very unsophisticated approach of like, well, you know, we're not going to do anything because we believe in free speech, which is really like, I don't want to take any responsibility for stuff that I really should be taking responsibility for.
• 40:23
  Mike Masnick: and then because that seems frustrating to the people in charge of law enforcement, they're sort of, I think, overreacting and.
• 40:31
  Mike Masnick: You know, again, we don't know with the raw of exactly what the situation is, but there's the possibility there, but Murray seems to be overreacting and just saying like, well, okay, fine.
• 40:38
  Mike Masnick: If if you're gonna thumb your nose at me, like I'm going to start putting people in jail or blocking your app or ceasing your assets or all this kind of stuff.
• 40:46
  Mike Masnick: And it just, feels like this is not a sophisticated way that anyone is dealing with this.
• 40:51
  Mike Masnick: And, and, sort of everyone involved looks bad.
• 40:54
  Ben Whitelaw: No, it's true.
• 40:55
  Ben Whitelaw: And, and, and I mean, this links really nicely to our next story, which is almost like, you know, it's a kind of foreshadowing of, of what might happen in this case in Brazil, I would say.
• 41:05
  Ben Whitelaw: So a lot of you might have.
• 41:07
  Ben Whitelaw: Seen the headlines this week about Mark Zuckerberg, who, the headlines say regretted demoting content during the Corona virus pandemic.
• 41:17
  Ben Whitelaw: on the back of requests from the U S government and also, didn't deal with the Hunter Biden laptop story in the way that he would have liked in hindsight, these headlines came out of a letter to Jim Jordan.
• 41:29
  Ben Whitelaw: he, who we've mentioned many times before on the podcast, uh, who's the chair of the judiciary committee and who is a relatively controversial guy, as we know, um, and the letter is a really interesting read.
• 41:40
  Ben Whitelaw: It's kind of a page and a half, but essentially sets out, yeah, a bit of a mea culpa for the way that Meta, has responded to these big events, particularly the pandemic and how it moderated.
• 41:52
  Ben Whitelaw: Now he kind of says that, he has changed the policies that currently, that Meta use for moderating content.
• 42:00
  Ben Whitelaw: The processes have changed so that this wouldn't happen again.
• 42:03
  Ben Whitelaw: And.
• 42:03
  Ben Whitelaw: You know, he talks about how hindsight has been a great eye opener for him, but there's clearly something kind of very political in this, Mike.
• 42:10
  Mike Masnick: Yeah.
• 42:11
  Ben Whitelaw: the letter reads like, I've got to say, like somebody has, is holding a gun to his head.
• 42:16
  Ben Whitelaw: You know, it's a very, it's, interestingly timed.
• 42:19
  Ben Whitelaw: I read some really interesting insight from Katie Harbeth, who writes a great newsletter, Anchor Change.
• 42:24
  Ben Whitelaw: She talks about, the timing of this letter coming just before.
• 42:28
  Ben Whitelaw: Obviously, we ramp up into the U.
• 42:30
  Ben Whitelaw: S.
• 42:30
  Ben Whitelaw: presidential election.
• 42:32
  Ben Whitelaw: It comes just before, U.
• 42:33
  Ben Whitelaw: S.
• 42:33
  Ben Whitelaw: Labor Day, where, some of these headlines, she expects will kind of slightly die down.
• 42:38
  Ben Whitelaw: And, and basically, it's a, an attempt by Zuckerberg not to get brought into the melee that will be, you know, the election in whatever it is, three months time and to try and steer clear of that.
• 42:51
  Ben Whitelaw: you also kind of noted a few really interesting things about, his letter.
• 42:55
  Ben Whitelaw: Do you feel the same?
• 42:56
  Ben Whitelaw: Is it, is it kind of like a, an arm's length response from Zuckerberg to what's going to come in the Harris Trump election?
• 43:05
  Mike Masnick: Yeah.
• 43:05
  Mike Masnick: I mean, I think the, there's a few different ways of looking at this, this letter and the simplest way of looking at it is this letter is designed in case Trump wins.
• 43:16
  Mike Masnick: a sort of hedge in, if Trump wins, Zuckerberg wants to be able to point to this letter and say, see, I regret what I did.
• 43:24
  Mike Masnick: I'm not that bad.
• 43:25
  Mike Masnick: I'm not working against Trump.
• 43:27
  Mike Masnick: And all of it is.
• 43:28
  Mike Masnick: It's stupid, spineless nonsense.
• 43:30
  Mike Masnick: the most incredible thing to me, and we've discussed this before, is that Jim Jordan is doing this on purpose.
• 43:36
  Mike Masnick: He is weaponizing his power in the government to attack the free speech of companies and their moderation practices.
• 43:43
  Mike Masnick: And he has done everything possible to make sure that companies feel extremely uncomfortable about doing anything to stop any kind of disinformation that supports Republican causes.
• 43:55
  Mike Masnick: so this is a pressure technique and in this letter, this very letter in which Zuckerberg says that he regrets bowing to government pressure, which is misleading in its own way, what he is doing is bowing to government pressure.
• 44:13
  Mike Masnick: He is directly supporting Jim Jordan's completely nonsense conspiracy theory that the Biden administration forced.
• 44:23
  Mike Masnick: Meta to remove COVID disinformation
• 44:28
  Ben Whitelaw: is, is it likely that the text of the letter would have been seen by the judiciary committee and signed off.
• 44:35
  Ben Whitelaw: Do you think, cause there was a sense from some of the, some of the stuff I read that this is a negotiation to avoid being called in front of the committee at some point in the run up to the election and so would, would that have been as obvious a quid pro quo as
• 44:49
  Mike Masnick: it, it, it,
• 44:50
  Ben Whitelaw: hard to say?
• 44:51
  Mike Masnick: yeah, it's, it's an incredibly hard to say, I don't think it works.
• 44:56
  Mike Masnick: I think there are probably people within Mark's inner circle who think that this will be an effective technique for that.
• 45:03
  Mike Masnick: Maybe there is some sort of more explicit agreement.
• 45:06
  Mike Masnick: The letter serves no purpose other than to support Jim Jordan's.
• 45:11
  Mike Masnick: Narrative, which is not only ridiculous and misleading, Zuckerberg knows that it is ridiculous and misleading.
• 45:20
  Mike Masnick: So the decision to support that narrative, has to be deliberate.
• 45:25
  Mike Masnick: Either Mark Zuckerberg and his inner circle are ignorant of how politics works.
• 45:31
  Mike Masnick: which feels unlikely, or they're doing this deliberately to signal like, hey, we're not as bad as you claim, which is a sort of spineless caving because all of the evidence has shown over and over again that if anything, Meta properties have bent over backwards to have different rules that support Republicans.
• 45:56
  Mike Masnick: there have been revelations that like Zuckerberg himself ordered the limiting of left leaning publications from having their traffic spread.
• 46:04
  Mike Masnick: They changed rules.
• 46:05
  Mike Masnick: They put in place different rules so that high level Republicans.
• 46:09
  Mike Masnick: Could violate the rules more often than not.
• 46:12
  Mike Masnick: The trending topics on Facebook throughout the last two elections were pro Trump, MAGA, Republican kinds of things.
• 46:21
  Mike Masnick: The evidence that anything he has done is anti Republican is, it's just not there, but it's useful for Jim Jordan.
• 46:29
  Mike Masnick: It's useful for Donald Trump to.
• 46:30
  Mike Masnick: Argue that as a way to sort of continue to put the pressure for those moderation practices to happen.
• 46:36
  Mike Masnick: And then the latest thing, which just came out last night is that next week, and this may play into the timing of the letter next week, Donald Trump has a new book coming out in which he accuses Mark Zuckerberg of trying to rig the election against him, which is laughable.
• 46:54
  Ben Whitelaw: The 2020 election, right?
• 46:56
  Mike Masnick: The 2020 election.
• 46:57
  Ben Whitelaw: the reason being because.
• 46:59
  Ben Whitelaw: Zuckerberg contributed money towards electoral infrastructure, or is it the kind of platform?
• 47:05
  Mike Masnick: it's it's both.
• 47:06
  Mike Masnick: he sort of mixes those two things.
• 47:08
  Mike Masnick: But and this is in in the letter that Zuckerberg sent to Jim Jordan.
• 47:11
  Mike Masnick: Also, there is this part about how out of not meta, but out of his private foundation, the Chan Zuckerberg initiative that they donated a bunch of money, like hundreds of millions of dollars to election infrastructure, a lot of it around mail in ballots and keeping them secure.
• 47:29
  Mike Masnick: And so that is actually important stuff.
• 47:32
  Mike Masnick: But part of the conspiracy theory lore that the Trump world has is that mail in ballots, even though Trump has used them for many years, and lots of Republicans have used them for many years, that they are somehow inherently insecure and inherently part of the rigging of any election.
• 47:49
  Mike Masnick: This is not true.
• 47:49
  Mike Masnick: There was no evidence for that, and all that Zuckerberg did was help fund it.
• 47:54
  Mike Masnick: To make sure to prove that mail-in ballots were more secure.
• 47:58
  Mike Masnick: So the only way that is rigging the election is if.
• 48:02
  Mike Masnick: You not only believed that mail in ballots were insecure, but that you also plan to use that insecurity that you believe existed to rig the election in your own favor.
• 48:13
  Mike Masnick: It's sort of a very telling thing that Trump is claiming that that is, you know, rigging the election against him because the only thing that he funded was to make sure that those ballots were secure and were properly counted.
• 48:26
  Mike Masnick: Part of that book claims that.
• 48:28
  Mike Masnick: he has people watching Zuckerberg closely.
• 48:31
  Mike Masnick: And if he tries to do anything like that again, this year, he will spend the rest of his life in jail.
• 48:37
  Mike Masnick: And so now we are right back to jailing CEOs of social media, the through line of this podcast.
• 48:44
  Mike Masnick: and this idea that like, if you don't grovel and it's not even that it's like, if you don't.
• 48:50
  Mike Masnick: Actively support my election.
• 48:52
  Mike Masnick: We will put you in jail.
• 48:54
  Mike Masnick: And so that just, just to take a step back, there may be legitimate claims against a Rob.
• 49:00
  Mike Masnick: There may be legitimate problems with the way that Musk is acting, but this idea that we are getting to the point where we are throwing CEOs of social media platforms in jail, leads you to this point where you have the Republican candidate for president, and you have.
• 49:12
  Mike Masnick: In the U S threatening that if Mark Zuckerberg does not directly help him in this election, he will throw him in jail for the rest of his life.
• 49:21
  Mike Masnick: And if you don't see that there is a, there is a line connecting all three of these stories.
• 49:25
  Ben Whitelaw: They're like three stages of the same story, aren't they, in a way you can almost, you can almost, tied them together with string.
• 49:31
  Ben Whitelaw: I mean, it's this thing about, moderation being political.
• 49:36
  Ben Whitelaw: Isn't that, you know, as a kind of political, I guess field on which companies and governments discuss, and kind of barter and, and, come together.
• 49:47
  Ben Whitelaw: I think are we ever going to get away from that?
• 49:49
  Ben Whitelaw: Is there ever, do you see a future in which questions of speech and who gets to, have a say online isn't political?
• 49:57
  Mike Masnick: I mean, I, Yeah, it doesn't feel like it.
• 49:59
  Mike Masnick: It is always difficult to tell, and once you, when you're in the middle of things, things always seem like they'll always be that way.
• 50:04
  Mike Masnick: You kind of do hope that we'll get past that.
• 50:06
  Mike Masnick: I mean, you know, newspapers have always been political, but we haven't seen, like, quite the same, like, negative reaction to sort of, like, people sort of know, like, okay, that newspaper supports Congress.
• 50:16
  Mike Masnick: Conservatives, that one supports liberals, whatever it might be, you know, and people sort of get used to it.
• 50:22
  Mike Masnick: And we haven't reached that stage with social media and it feels like a little bit more visceral.
• 50:26
  Mike Masnick: So I, you know, maybe there's a point at which people sort of get used to it.
• 50:30
  Mike Masnick: But the underlying point here, which is important is that for the most part, and this is no longer true with X, because they're explicit about it for the most part, most platforms don't their moderation practices are not political.
• 50:42
  Mike Masnick: They are inherently.
• 50:44
  Mike Masnick: Unrelated to the politics.
• 50:46
  Mike Masnick: There's a false belief that many of them are moderating because of politics.
• 50:50
  Mike Masnick: And the only platform I would say that is currently true for is X.
• 50:54
  Mike Masnick: And that is because they're explicit about, because they thought that everybody else was that way, which is just another example of Elon Musk having no idea what, how any of this actually works.
• 51:03
  Mike Masnick: Um, so it's, I hope it's not.
• 51:06
  Mike Masnick: and I hope we don't, have to live in this world because it would be nice to get past because all of these battles just seem like they're fake battles.
• 51:12
  Mike Masnick: They're not battles about what's really happening.
• 51:14
  Mike Masnick: They're not battles about the real reasons why trust and safety exists.
• 51:17
  Mike Masnick: They're not, the whole trust and safety content moderation space is based on, setting up rules of the road and then enforcing them, and that has very, very little to do with politics, but everybody wants to turn it into a political thing.
• 51:30
  Mike Masnick: And it's, it's really, it's a shame.
• 51:32
  Ben Whitelaw: Yeah.
• 51:33
  Ben Whitelaw: And it's, it's a tough week to be a CEO of a platform.
• 51:36
  Ben Whitelaw: That's for sure.
• 51:37
  Ben Whitelaw: Rather them than me,
• 51:39
  Mike Masnick: threatened to arrest me yet.
• 51:40
  Mike Masnick: So, you know,
• 51:42
  Ben Whitelaw: it's only a matter of time, Mike, there'll be knocking at your door soon.
• 51:46
  Ben Whitelaw: Mike, thanks for really unpacking all those stories.
• 51:48
  Ben Whitelaw: You've, done an amazing job there of, taking us through.
• 51:51
  Ben Whitelaw: What have been really, a really interesting week.
• 51:53
  Ben Whitelaw: that takes us to the end of today's episode.
• 51:55
  Ben Whitelaw: I think we're, all talked out.
• 51:57
  Ben Whitelaw: We've got more next week.
• 51:59
  Ben Whitelaw: I'm sure there'll be more information about the Jurov case and probably, a bit more about the Zuckerberg letter as well, but for now we'll, we'll wrap up and thank everyone for listening.
• 52:09
  Ben Whitelaw: I hope to speak to you next week and for, thanks for tuning in.
• 52:12
  Mike Masnick: Yep.
• 52:12
  Mike Masnick: Thanks.
• 52:12
  Mike Masnick: And leave a review.
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