One idea for regulating Google and Facebook's control over content - Axios
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One idea for regulating Google and Facebook's control over content

Paul Sakuma / AP

We reported this morning on the mounting pressure on major web platforms over their role in moderating content. A conservative activist named Phil Kerpen circulated a confidential memo earlier this year on the mechanics and politics of how to regulate the political neutrality of major web companies like Google and Facebook. Find the full text below.

Why it matters: Moves to turn these ideas into concrete policy or regulation haven't happened. But the memo is certainly getting attention, especially as major web platforms try to walk the fraught line of removing extremist content while also maintaining an open platform for free speech in the wake of the Charlottesville attack.

Worth noting: "The unpublished draft memo represents preliminary thoughts on complex issues," Kerpen said when contacted by Axios.

Confidential Strategy Memorandum: Layer-Neutral Net Neutrality And The Private Censorship Problem

Social media (Facebook, Twitter) and search (Google) companies with dominant market position represent themselves as politically neutral while systematically promoting liberal views and limiting or even banning conservatives. They do so while enjoying blanket liability protection and with the full approval of liberal elites. Far too many conservative media and intellectuals defend the politically biased practices of these companies on the basis that viewpoint discrimination by private entities is beyond the reach of government.

That view ignores the reality that basic network economics create a high bar to competition – a problem that's been with us since the railroads – and that incumbents with market power therefore pose a serious threat to free speech.

Worse, that view incorrectly assumes the political bias of these companies is a free-market phenomenon, when it is largely result of federal law that insulates these companies from a natural market constraint on being an active political player: legal liability for publishing false and malicious claims.

Section 230 of the Communications Decency Act includes a finding by Congress that "The Internet and other interactive computer services offer a forum for a true diversity of political discourse," but has enabled precisely the opposite by allowing sites to exercise editorial control without becoming legally responsible for user-generated content.

CDA 230's provision for "Good Samaritan blocking and screening of offensive material" is so broad, allowing sites to filter or block content that is "harassing, or otherwise objectionable," that it effectively gives carte blanche to promote an aggressive political agenda without any risk of legal consequence.

Moreover, the very companies that are now exploiting these liability protections and their enormous incumbent market power were the principal corporate proponents of imposing draconian regulation on ISPs via the FCC in the context of net neutrality, which morphed into Title II public utility regulation. The arguments they made in that context apply in every respect to themselves, as both critics and supporters of net neutrality regulation have long observed.

The Title II order is ticketed for imminent revocation under Republican FCC Chairman Ajit Pai, and deservedly so. It has had a profound negative impact on broadband investment and represents a dangerous precedent of a federal regulatory agency dramatically expanding its own power without authorization by Congress.

At the same time, however, the Internet ecosystem is not likely to be satisfied with going back to the old, unenforceable broadband statement given the battle-scars on all sides of the net neutrality fight. Stakeholders will seek bright line rules requiring transparency and prohibiting blocking and throttling from the place the debate always should have taken place: Congress.

The legislative process is likely to be led by the Senate Commerce Committee and its chairman, John Thune of South Dakota, who unfortunately may fear taking on powerful edge companies after receiving unexpected criticism from the right when he held important hearings on the systematic political manipulation of the "Trending News" feature by Facebook.

The Trump administration should urge Thune to think bigger than just the ISPs and make clear that they will provide robust cover from the right if he takes on the challenge of political bias from the edge.

Social media and search companies, and possibly others, should be subject to the same neutrality rules because they possess the same benefits of market power that come from enormous fixed costs as well as, in the case of social network platforms, the network lock-in effects of having a large user-base.

Putting everyone in the same boat has enormous advantages, ensuring the exercise is genuinely pro-consumer rather than devolving into the familiar attempt by the edge to seek regulatory predation of the core.

The most likely approach would be a supercharged transparency rule requiring clear disclosure of how traffic is treated, and clear specification of the standards used for limiting speech, including any possible viewpoint discrimination.

Platforms that represent themselves to the public as neutral would be subject to enforcement actions if they violate those representations through a consumer-protection framework.

Platforms that elect not to be neutral would be free to exercise editorial control, but would have to prominently disclose they are doing so – and would no longer be eligible for a section 230 safe harbor to shield them from the legal consequences of the material they choose to publish.

Critics will raise First Amendment objections, but their arguments will smack of hypocrisy if they supported the FCC neutrality rules for ISPs, which also provide a legal template.

In USTA v. FCC the DC Circuit upheld so-called net neutrality regulation of broadband providers and laid out a roadmap for neutrality regulation without running afoul of the First Amendment:

If a broadband provider nonetheless were to choose to exercise editorial discretion—for instance, by picking a limited set of websites to carry and offering that service as a curated internet experience—it might then qualify as a First Amendment speaker. But the Order itself excludes such providers from the rules. The Order defines broadband internet access service as a "mass-market retail service"—i.e., a service that is "marketed and sold on a standardized basis"—that "provides the capability to transmit data to and receive data from all or substantially all Internet endpoints." That definition, by its terms, includes only those broadband providers that hold themselves out as neutral, indiscriminate conduits.

Search and social can, by the same logic, be required to enforceably identify themselves as neutral or non-neutral platforms.

Jack Dorsey of Twitter has said: "We think of it as an information utility and a communications network," making it functionally identical to the ISPs Twitter lobbied the FCC to regulate.

If Twitter is in fact an advocate for liberal views – as it appears to be – then it should be forced to say so clearly, as should Facebook and Google. And if they choose to be First Amendment speakers rather than neutral conduits, then they should be willing and able to defend the material they label as "fact checked" in court.

By simply proposing this framework, the Trump administration would make clear that the asymmetry of companies identified with conservative causes risking regulatory retaliation while companies identified with liberals are given a free pass is over.

Moreover, while the initial response will be indignation from the left as well as search and social companies – possibly including mass mobilization of site users, which is a potent political weapon – the focus on transparency, a core value of younger voters, as well as the hypocrisy of these companies supporting for ISPs precisely what they oppose for themselves puts these companies in an untenable position.

They are therefore likely to rely principally on the argument that regulation is unnecessary, to issue even stronger statements of political neutrality, and to actually improve their behavior to prevent regulation.

Rather than fighting a standalone rearguard action to defend rollback at the FCC, this approach puts us on offense on the net neutrality issue and assures a positive outcome whether or not the bill passes.


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Trump claims he told Time "no thanks" for Man of the Year

Photo: Jae C. Hong / AP

Friday evening, President Trump tweeted, "Time Magazine called to say that I was PROBABLY going to be named "Man (Person) of the Year," like last year, but I would have to agree to an interview and a major photo shoot. I said probably is no good and took a pass. Thanks anyway!"

Why it matters: Trump has been tweeting about Time Magazine since 2012, when he said, "I knew last year that @TIME Magazine lost all credibility when they didn't include me in their Top 100." He complained in 2015 that they didn't choose him as person of the year, and earlier this year the Washington Post discovered that there were fake Time Magazine covers featuring Trump in several of his golf clubs.

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Mobile purchases surging this Black Friday

Josh Reynolds / AP Images for BJ's Wholesale Club

Almost half of the almost $3 billion spent online this Thanksgiving came from mobile devices, according to Adobe Analytics, with mobile making up 61% of site visits.

Why it matters: Brick-and-mortar stores have taken a hit this year, but the growing popularity and user-friendliness of mobile shopping could maintain the retail success of Black Friday deals. Adobe found a 51% increase in mobile sales on Thanksgiving from last year, and overall retail sales are projected to rack up to $20 billion by the end of the weekend.

Experts say: "On both Thanksgiving and Black Friday, the gap between mobile traffic and revenue is closing. Shoppers looking for discounts are getting better at using smartphones to quickly close the deal, and we are seeing better mobile conversion this season at over 10% growth," Adobe vice president Mickey Mericle told Retail Dive.


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Arpaio sued for allegedly pursuing charges to hurt Jeff Flake

Photo: Mary Altaffer / AP

One of Sen. Jeff Flake's sons has filed a malicious prosecution lawsuit against Sherriff Joe Arpaio, claiming the sheriff pursued charges of animal cruelty against him and his wife for publicity's sake and to hurt his father's political reputation, AP reports. The case will go to trial on December 5.

Why it matters: This is just the latest in a list of serious accusations of misconduct against Arpaio. President Trump pardoned Arpaio over criminal contempt charges earlier this year.

The backstory: In 2014, Austin Flake and his wife were watching the dogs at an animal shelter owned by Flake's in-laws when an air conditioning unit broke and 21 dogs died from heat exhaustion. The owners, who had been out of town, eventually pleaded guilty to animal cruelty charges for not properly maintaining the AC unit.

The claim: Austin claims that Arpaio was intent on linking the Flake family to the felony charge of animal cruelty and even conducted surveillance at the senator's house.

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Trump says Egypt attack shows need for wall, travel ban

President Trump has issued another tweet about the mosque attack in North Sinai, Egypt that killed about 235 people, tying the attack to his immigration policies:

That followed a far more restrained message from his account, which seemed to come during his golf round:

Be smart: The challenges Egypt faces from groups like ISIS, which is active in the Sinai peninsula, are far different from the threat the U.S. faces — largely from individual, ISIS-inspired attackers.

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Turkey claims Trump promised to stop arming Syrian Kurds

Photo; Pool Photo / AP

The Turkish Foreign Minister Mevlut Cavusoglu claims President Trump promised to stop arming the Syrian Kurds during a phone call with Turkish President Recep Tayyip Erdogan, AP reports.

Why it matters: The White House has yet to comment on the claim, but some U.S. officials told the AP they were caught off guard by the announcement. Turkey views Kurdish fighters in Syria as terrorists because of the affiliation with the Kurdish fighters in their own country, but the Kurds have been effective in the anti-ISIS fight.

Update from the White House, seeming to confirm the Turkish claim: "Consistent with our previous policy, President Trump also informed President Erdogan of pending adjustments to the military support provided to our partners on the ground in Syria, now that the battle of Raqqa is complete and we are progressing into a stabilization phase to ensure that ISIS cannot return. The leaders also discussed the purchase of military equipment from the United States."

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Barbie through the years

An arrangement of Fashionista Barbies, by Mattel, is shown at Toy Fair in New York. Photo: Photo: Mark Lennihan / AP

In the nearly six decades of Barbie's reign as a cultural icon (she turns 59 in March), little girls' perception of beauty and success have evolved dramatically. As a result, Barbie's creator, Mattel, has repeatedly revamped the doll to keep her relevant.

Why it matters: In the past few years alone, the iconic blonde doll with its unrealistic body proportions has undergone massive changes. One of Barbie's biggest breakthroughs was as recent as 2016, when Mattel unveiled curvy, petite and tall dolls in an assortment of different skin tones and hairstyles. And the latest Barbie, set to hit stores in 2018, will don a hijab, in honor of Olympic fencer Ibtihaj Muhammad.

Business impact: Mattel credited their 2016 collection with boosting worldwide sales by 7%, revealing that the continued diversity push is largely a business decision for the company, which has been trying to turn its core business around for years.

Yes, but: Despite the spike in sales earlier this year, Mattel has been hard-pressed to maintain the momentum. In its most recent quarter, Mattel said Barbie sales were down 13% worldwide, and 22% in North America in large part due to the bankruptcy of one of its biggest customers, Toys R Us.

What's next: With sales lagging again, Mattel will likely continue its evolution of debuting new dolls with distinctive characteristics that attempt to break its previous cultural boundaries.

Barbie through the years

1965

Barbie encourages fad dieting. The Slumber Party-themed doll came equipped with a small plastic scale set to 110 lbs. and a diet book titled "How to Lose Weight" with the advice, "DON'T EAT!"

1992

Barbie speaks. Her first words included phrases like "I love shopping" and "Math class is tough." The latter phrase received backlash from several female advocates accusing Mattel of perpetuating gender stereotypes.

Barbie gets presidential. Mattel introduced the first president Barbie in 1992, donning a patriotic inauguration gown. In the following years she was upgraded to a dress suit.

The new "President 2000 Barbie" doll is shown Tuesday, April 25, 2000, in Los Angeles. Photo: Reed Saxon / AP

1994

Oreo Barbie. Mattel unveiled an Oreo Fun Barbie edition in partnership with Oreo-producer Nabisco. However, the African American version was quickly recalled after criticism that the word "Oreo" can refer to someone as being "black on the outside, and white on the inside."

1997

Barbie in a wheelchair. Mattel's "Share a Smile" Becky was its first handicapped doll. However, the company discontinued the doll after receiving criticism for not making Barbie's other accessories wheelchair accessible. Customers complained that the doll's wheelchair didn't fit in Barbie's Dream house elevator or her cars. The doll's long hair also got stuck in the wheels.

Mattel's Share a Smile Becky doll is shown during a news conference in Washington Wednesday, May 21, 1997. Photo: Susan Walsh / AP

1998

"Really Rad Barbie" gets a new, idolized body shape. The new body type was based on the fashion of the time. Barbie got a tighter smile, straighter hair, smaller hips, a smaller chest, a slightly wider waist and flatter feet. "They wanted Barbie to be cooler," Sean Fitzgerald, then-vice president of corporate communications for Mattel told SF Gate.

2015

Barbie gets inspired. In 2015, Mattel launched its Shero collection, based on women who have broken boundaries. Some of the Shero dolls include plus-size model Ashley Graham; groundbreaking African American ballerina Misty Copeland; Olympic gymnast Gabby Douglas and Asian-American fashion editor Eva Chen.

Artificial Intelligence Barbie. This Barbie was the world's first AI-enabled doll, and designed to have conversations with children, much like one Siri would have with its iPhone users. And although many kids were excited to have a techy Barbie, several parents were concerned about the doll's ability to store data from recordings.

Hello Barbie is displayed at the Mattel showroom during the North American International Toy Fair in New York. Photo: Mark Lennihan / AP

2016

Barbie gets more realistic body shapes. Mattel debuted their new line of Barbies with three different body shapes — petite, tall, and curvy — in March 2016, alongside the hashtag #TheDollEvolves. The doll also comes in seven different skin tones, 22 eye colors, 33 hairstyles, and new clothing options.

A "curvy" Barbie, left, by Mattel, is shown at Toy Fair in New York in 2016. Photo: Mark Lennihan / AP

2017

Barbie's boyfriend, Ken, becomes more diverse: In June 2017, Mattel unveiled a collection of 15 racially and stylistically diverse Ken dolls with different body types and skin tones. They also have different hair colors and styles, including a man bun.

2018

Barbie will get a hijab. Influenced by Olympic fencer Ibtihaj Muhammad, who became the first American to compete in the games while wearing a hijab. The doll will go on sale in 2018.

Olympic fencer Ibtihaj Muhammad holds a hijab-wearing "Barbie Shero" in her likeness at the 2017 Glamour Women of the Year Awards. Photo: Evan Agostini / Invision via AP

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Bharara: Cooperation with Mueller is "only sane move" for Flynn

Photo: Evan Vucci / AP

Former U.S. attorney Preet Bharara tweeted on Friday that the only "rational move" for former national security adviser Mike Flynn is to cooperate with special counsel Robert Mueller. The tweet follows a NY Times report that Flynn's lawyers have cut ties with Trump's, possibly in order to cut a deal with Mueller.

"If you're dead to rights, flipping on others and cooperating with the prosecution is the only sane and rational move. Also, prosecutors accept cooperation only if you can provide 'substantial assistance.' Higher up in the food chain."

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Trump administration backs Obama-led climate effort

Obama and Trump meet at the White House after Trump's election. Photo: Pablo Martinez Monsivais / AP

A career State Department official speaking at a conference Thursday on behalf of the Trump administration backed a climate policy then-President Obama pursued shortly before he left office.

The policy phases down powerful greenhouse gases found in a range of everyday appliances. This is the most explicit and public the Trump administration has been about supporting it.

The big picture: The conference, held this week in Montreal, is about a recent amendment to the Montreal Protocol, a global treaty created 30 years ago to fix the hole in the Earth's ozone layer, which is now it's achieving its goal. World leaders, led by the Obama administration, agreed in October 2016 to the Kigali amendment, which would phase down emissions of powerful greenhouse gases in refrigerants called hydrofluorocarbons (HFCs). HFCs are used in many appliances from air conditioners to refrigerators.

Quoted: "The United States believes the Kigali Amendment represents a pragmatic and balanced approach to phasing down the production and consumption of HFCs, and therefore we support the goals and approach of the Amendment," said Judith Garber, Principal Deputy Assistant Secretary of the State Department's Bureau of Oceans and International Environmental and Scientific Affairs.

What's next: Rhetorical backing for the amendment is one thing, but to have it actually take effect, the administration needs to send it over to the Senate so it can vote on its official ratification, as the Senate has done on other amendments and the original treaty 30 years ago. "There is no timeline currently determined for these steps, but we have initiated the process to consider U.S. ratification of the Amendment," Garber said.

Fast facts: The Montreal Protocol is a treaty about the ozone layer, but this latest amendment from Kigali represents an evolution to concerns about climate change. The 2015 Paris climate deal, which is a non-binding treaty that didn't require congressional input, is mostly about cutting other greenhouse gases from energy and land use. It's wholly separate from the Montreal Protocol.

Bottom line: Process matters a lot here. One of the biggest complaints of Trump administration officials about the Paris deal is that Obama circumvented Congress (because he knew he wouldn't get support from the GOP-controlled Senate). The Kigali amendment backers, which include chemical makers like Honeywell and Chemours, are emphasizing how this is a collaborative process with Congress and is about the Montreal Protocol, not climate change per se.

What we're hearing: "These remarks in support of the Kigali Amendment are very significant. Obviously, they were cleared by the White House," said David Doniger, who directs the climate change program at the Natural Resources Defense Council, by email. "The contrast with Trump's rejection of Paris is striking. But the Montreal Protocol and all of its amendments have enjoyed support from presidents and members of Congress from both parties."

My thought bubble: If/when you see this process unfold further, don't expect congressional Republicans and administration officials, most of whom don't acknowledge climate change is a problem, to focus on the climate angle. It'll be all about collaboration and protecting the environment and creating business opportunities for industry.


Go deeper:

  • Read my two Harder Line columns on this topic: Why industry is backing the policy, and how your air conditioner is caught up in all this.
  • The amendment is set to go into force (for those that have officially signed onto it) in January 2019, thanks to Sweden just recently signing on and meeting the ratification threshold, per the NYT.
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A new bird species is seen emerging in real-time

A medium ground finch, one of the two Galapagos finches that led to the new lineage.

Photo: Uwe-Bergwitz / iStock

Scientists have directly documented a new species evolving in the wild for the first time, according to the BBC. Fittingly, the event was seen in Galapagos Island finches, the same group of birds that helped Darwin solidify his theory of evolution. The research, published Thursday in the journal Science, started in 1981, when a single male from a different finch species came to the tiny island of Daphne Major.

Why it matters: This is the first time the formation of a new species has been observed in real-time in the wild. More than that, it shows how just a single individual can breed with one from another species, leading to the creation of a new species.

For several decades, scientists have been meticulously documenting minute changes in different finch species on the Galapagos Islands, an archipelago that's been referred to as a "natural laboratory for evolution."

How it started: The initial hybridization event happened in 1981 on the Galapagos island of Daphne Major, where evolutionary biologists Peter and Rosemary Grant conducted most of their research. They studied the group so closely that they noticed when a male large cactus finch, native to a different island 65 miles away, arrived on the island and began breeding with a local population.

What happened: Native females didn't recognize the songs of the new hybrid males, so instead of breeding with the local population as expected, the hybrids bred within their population. This paper shows that after just two generations, they stopped breeding with other populations and have remained reproductively isolated ever since.

Taking off: "In most cases, the offspring of cross-species matings are poorly adapted to their environment," writes Rory Galloway for the BBC. But the large size of these hybrids has allowed them to exploit resources the native birds weren't using, so the birds have flourished.

Go deeper: It just so happens that Darwin's personally annotated copy of The Origin of Species is up for auction. The Guardian has the story.

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235 killed in Egypt mosque attack

About 235 people were killed and 109 more wounded in a bomb and gun attack on a mosque in North Sinai, Egypt's general prosecutor has said. Police say men in off-road vehicles fired upon worshippers during Friday prayers at the mosque, in the town of Bir al-Abed. It appears that the explosion happened first, and the attackers fired on the worshippers as they fled.

NY Times' Rukmini Callimachi: "No group has claimed responsibility, but we know ISIS has a powerful affiliate there and the group has long targeted Sufis around the world."

Trump's tweets: