Reform the US low-income broadband program by rebuilding Lifeline

“If you build it, they will come” is a mantra that’s been repeated for more than three decades to embolden action. The line from “Field of Dreams” is a powerful saying, but I might add one word: “If you build it well, they will come.”

America’s Lifeline program, a monthly subsidy designed to help low-income families afford critical communications services, was created with the best intentions. The original goal was to achieve universal telephone service, but it has fallen far short of achieving its potential as the Federal Communications Commission has attempted to convert it to a broadband-centric program.

The FCC’s Universal Service Administrative Company estimates that only 26% of the families that are eligible for Lifeline currently participate in the program. That means that nearly three out of four low-income consumers are missing out on a benefit for which they qualify. But that doesn’t mean the program should be abandoned, as the Biden administration’s newly released infrastructure plan suggests.

Now is the right opportunity to complete the transformation of Lifeline to broadband and expand its utilization by increasing the benefit to a level commensurate with the broadband marketplace and making the benefit directly available to end users.

Rather, now is the right opportunity to complete the transformation of Lifeline to broadband and expand its utilization by increasing the benefit to a level commensurate with the broadband marketplace and making the benefit directly available to end users. Instead, the White House fact sheet on the plan recommends price controls for internet access services with a phaseout of subsidies for low-income subscribers. That is a flawed policy prescription.

If maintaining America’s global competitiveness, building broadband infrastructure in high-cost rural areas, and maintaining the nation’s rapid deployment of 5G wireless services are national goals, the government should not set prices for internet access.

Forcing artificially low prices in the quest for broadband affordability would leave internet service providers with insufficient revenues to continue to meet the nation’s communications infrastructure needs with robust innovation and investment.

Instead, targeted changes to the Lifeline program could dramatically increase its participation rate, helping to realize the goal of connecting Americans most in need with the phone and broadband services that in today’s world have become essential to employment, education, healthcare and access to government resources.

To start, Lifeline program participation should be made much easier. Today, individuals seeking the benefit must go through a process of self-enrollment. Implementing “coordinated enrollment” — through which individuals would automatically be enrolled in Lifeline when they qualify for certain other government assistance benefits, including SNAP (the Supplemental Nutrition Assistance Program, formerly known as food stamps) and Medicaid — would help to address the severe program underutilization.

Because multiple government programs serve the same constituency, a single qualification process for enrollment in all applicable programs would generate government efficiencies and reach Americans who are missing out.

Speaking before the American Enterprise Institute back in 2014, former FCC Commissioner Mignon Clyburn said, “In most states, to enroll in federal benefit programs administered by state agencies, consumers already must gather their income-related documentation, and for some programs, go through a face-to-face interview. Allowing customers to enroll in Lifeline at the same time as they apply for other government benefits would provide a better experience for consumers and streamline our efforts.”

Second, the use of the Lifeline benefit can be made far simpler for consumers if the subsidy is provided directly to them via an electronic Lifeline benefit card account — like the SNAP program’s electronic benefit transfer (EBT) card. Not only would a Lifeline benefit card make participation in the program more convenient, but low-income

Americans would then be able to shop among the various providers and select the carrier and the precise service(s) that best suits their needs. The flexibility of greater consumer choice would be an encouragement for more program sign-ups.

And, the current Lifeline subsidy amount — $9.25 per month — isn’t enough to pay for a broadband subscription. For the subsidy to be truly meaningful, an increase in the monthly benefit is needed. Last December, Congress passed the temporary Emergency Broadband Benefit to provide low-income Americans up to a $50 per month discount ($75 per month on tribal lands) to offset the cost of broadband connectivity during the pandemic. After the emergency benefit runs out, a monthly benefit adequate to defray the cost of a broadband subscription will be needed.

In order to support more than a $9.25 monthly benefit, the funding source for the Lifeline program must also be reimagined. Currently, the program relies on the FCC’s Universal Service Fund, which is financed through a “tax” on traditional long-distance and international telephone services.

As greater use is made of the web for voice communications, coupled with less use of traditional telephones, the tax rate has increased to compensate for the shrinking revenues associated with landline phone services. A decade ago, the tax, known as the “contribution factor,” was 15.5%, but it’s now more than double that at an unsustainable 33.4%. Without changes, the problem will only worsen.

It’s easy to see that the financing of a broadband benefit should no longer be tied to a dying technology. Instead, funding for the Lifeline program could come from a “tax” shared across the entire internet ecosystem, including the edge providers that depend on broadband to reach their customers, or from direct congressional appropriations for the Lifeline program.

These reforms are realistic and straightforward. Rather than burn the program down, it’s time to rebuild Lifeline to ensure that it fulfills its original intention and reaches America’s neediest.

Sen. Wyden proposes limits on exportation of American’s personal data

Senator Ron Wyden (D-OR) has proposed a draft bill that would limit the types of information that could be bought and sold by tech companies abroad, and the countries it could be legally sold in. The legislation is imaginative and not highly specific, but it indicates growing concern at the federal level over the international data trade.

“Shady data brokers shouldn’t get rich selling Americans’ private data to foreign countries that could use it to threaten our national security,” said Sen. Wyden in a statement accompanying the bill. They probably shouldn’t get rich selling Americans’ private data at all, but national security is a good way to grease the wheels.

The Protecting Americans’ Data From Foreign Surveillance Act would be a first step towards categorizing and protecting consumer data as a commodity that’s traded on the global market. Right now there are few if any controls over what data specific to a person — buying habits, movements, political party — can be sold abroad.

This means that, for instance, an American data broker could sell the preferred brands and home addresses of millions of Americans to, say, a Chinese bank doing investment research. Some of this trade is perfectly innocuous, even desirable in order to promote global commerce, but at what point does it become dangerous or exploitative?

There isn’t any official definition of what should and shouldn’t be sold to whom, the way we limit sales of certain intellectual property, or weapons. The proposed law would first direct the Secretary of Commerce to identify the data we should be protecting and whom it should be protected against.

The general shape of protected data would be that which “if exported by third parties, could harm U.S. national security.” The countries that would be barred from receiving it would be those with inadequate data protection and export controls, recent intelligence operations against the U.S., or laws that allow the government to compel such information to be handed over to them. Obviously this is aimed at the likes of China and Russia, though ironically the U.S. fits the bill pretty well itself.

There would be exceptions for journalism and First Amendment-protected speech, and for encrypted data — for example storing encrypted messages on servers in one of the targeted countries. The law would also create penalties for executives “who knew or should have known” that their company was illegally exporting data, and creates pathways for people harmed or detained in a foreign country owing to illegally exported data. That might be if, say, another country used an American facial recognition service to spot, stop, and arrest someone before they left.

If this all sounds a little woolly, it is — but that’s more or less on purpose. It is not for Congress to invent such definitions as are necessary for a law like this one; that duty falls to expert agencies, which must conduct studies and produce reports that Congress can refer to. This law represents the first handful of steps along those lines: getting the general shape of things straight and giving fair warning that certain classes of undesirable data commerce will soon be illegal — with an emphasis on executive responsibility, something that should make tech companies take notice.

The legislation would need to be sensitive to existing arrangements by which companies spread out data storage and processing for various economic and legal reasons. Free movement of data is to a certain extent necessary for globe-spanning businesses that must interact with one another constantly, and to hobble those established processes with red tape or fees might be disastrous to certain locales or businesses. Presumably this would all come up during the studies, but it serves to demonstrate that this is a very complex, not to say delicate, digital ecosystem the law would attempt to modify.

We’re in the early stages of this type of regulation, and this bill is in the early stages of becoming a bill, so expect a few months at the very least before we hear anything more on this one.

Republican antitrust bill would block all big tech acquisitions

There are about to be a lot of antitrust bills taking aim at big tech, and here’s one more. Senator Josh Hawley (R-MO) rolled out a new bill this week that would take some severe measures to rein in big tech’s power, blocking mergers and acquisitions outright.

The “Trust-Busting for the Twenty-First Century Act” would ban any acquisitions by companies with a market cap of more than $100 billion, including vertical mergers. The bill also proposes changes that would dramatically heighten the financial pain for companies caught engaging in anti-competitive behavior, forcing any company that loses an antirust suit to forfeit profits made through those business practices.

At its core, Hawley’s legislation would snip some of the red tape around antitrust enforcement by amending the Sherman Act, which made monopolies illegal, and the Clayton Act, which expanded the scope of illegal anti-competitive behavior. The idea is to make it easier for the FTC and other regulators to deem a company’s behavior anti-competitive — a key criticism of the outdated antitrust rules that haven’t kept pace with the realities of the tech industry.

The bill isn’t likely to get too far in a Democratic Senate, but it’s not insignificant. Sen. Amy Klobuchar (D-MN), who chairs the Senate’s antitrust subcommittee, proposed legislation earlier this year that would also create barriers for dominant companies with a habit of scooping up their competitors. Klobuchar’s own ideas for curtailing big tech’s power similarly focus on reforming the antitrust laws that have shaped U.S. business for more than a century.

Click to access The%20Trust-Busting%20for%20the%20Twenty-First%20Century%20Act.pdf

The Republican bill may have some overlap with Democratic proposals, but it still hits some familiar notes from the Trump era of hyper-partisan big tech criticism. Hawley slams “woke mega-corporations” in Silicon Valley for exercising too much power over the information and products that Americans consume. While Democrats naturally don’t share that critique, Hawley’s bill makes it clear that antitrust reform targeting big tech is one policy era where both political parties could align on the ends, even if they don’t see eye to eye on the why.

Hawley’s bill is the latest, but it won’t be the last. Rep. David Cicilline (D-RI), who spearheads tech antitrust efforts in the House, previously announce his own plans to introduce a flurry of antitrust reform bills rather than one sweeping piece of legislation. Those bills, which will be more narrowly targeted to make them difficult for tech lobbyists to defeat, are due out in May.

Tech and auto execs tackle global chip shortage at White House summit

A collection of tech and auto industry executives met with the White House to discuss solutions for the worldwide chip shortage Monday.

CEOs from Google, Intel, HP, Dell, Ford and General Motors attended the virtual summit on semiconductors and resilience in supply chains. National Security Adviser Jake Sullivan, Secretary of Commerce Gina Raimondo and National Economic Council Director Brian Deese hosted the meeting, which President Biden also attended briefly.

Ahead of the summit, Intel CEO Pat Gelsinger said he hoped the U.S. could increase its semiconductor production to encompass a third of all chips sold in the U.S. Intel is in discussions to make chips designed specifically for automakers within its own facilities, a project that could take some pressure off of supply lines.

An ongoing dearth of the tiny, high-tech components used in everything from car entertainment systems to smartphones has stretched supply thin. Consumers have been feeling it for months. Soaring demand has made new gaming consoles and graphics cards scarce, even months after some of those devices are released. But with semiconductors omnipresent in devices these days, the supply shortages are disrupting industries well beyond gaming.

President Biden signed an executive order taking aim at the supply issues in February. That order initiated a 100-day review of supply chains for semiconductors as well as advanced batteries like those found in electric vehicles, key minerals required for tech products, and pharmaceuticals and their ingredients.

Biden noted that the chip shortages have “caused delays in productions of automobiles and has resulted in reduced hours for American workers.” He also cited supply shortages for PPE during the early months of the pandemic, when many health workers were forced to work without proper protection.

The order also kicks off a longer review in cooperation with industry leaders that will look for solutions that can be implemented right away to alleviate ongoing supply chain issues.

Supply chain issues for tech components also highlight tensions with China, a fact that Sullivan’s presence at the White House summit makes clear. Biden cited concerns around “long-term competitiveness” as one motivation for undergoing a major audit of supply chains for critical tech components.

Sen. Mark Warner (D-VA) has called the shortage “a national security issue as well as an economic one,” citing the need for semiconductors in defense tech.

Warner has emphasized the need for legislative solutions that would move the U.S. toward self-reliance and push back on China’s influence, pointing to a semiconductor production bill he introduced with Sen. John Cornyn (R-TX) last summer.

Biden previously said that the administration will work toward solutions to the current shortfall of the critical chips and will be leaning on political allies “to ramp up production to help us resolve the bottlenecks we face now.”

Apple and Google will both attend Senate hearing on app store competition

After it looked like Apple might no-show, the company has committed to sending a representative to a Senate antitrust hearing on app store competition later this month.

Last week, Senators Amy Klobuchar (D-MN) and Mike Lee (R-UT) put public pressure on the company to attend the hearing, which will be held by the Senate Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights. Klobuchar chairs that subcommittee, and has turned her focus toward antitrust worries about the tech industry’s most dominant players.

The hearing, which Google will also attend, will delve into Apple and Google’s control over “the cost, distribution, and availability of mobile applications on consumers, app developers, and competition.”

App stores are one corner of tech that looks the most like a duopoly, a perception that Apple’s high profile battle with Fortnite-maker Epic is only elevating. Meanwhile, with a number of state-level tech regulation efforts brewing, Arizona is looking to relieve developers from Apple and Google’s hefty cut of app store profits.

In a letter last week, Klobuchar and Lee, the subcommittee’s ranking member, accused Apple of “abruptly” deciding that it wouldn’t send a witness to the hearing, which is set for April 21.

“Apple’s sudden change in course to refuse to provide a witness to testify before the Subcommittee on app store competition issues in April, when the company is clearly willing to discuss them in other public forums, is unacceptable,” the lawmakers wrote.

By Monday, that pressure had apparently done its work, with Apple agreeing to attend the hearing. Apple didn’t respond to a request for comment.

While the lawmakers are counting Apple’s acquiescence as a win, that doesn’t mean they’ll be sending their chief executive. Major tech CEOs have been called before Congress more often over the last few years, but those appearances might have diminishing returns.

Tech CEOs, Apple’s Tim Cook included, are thoroughly trained in the art of saying little when pressed by lawmakers. Dragging in a CEO might work as a show of force, but tech execs generally reveal little over the course of their lengthy testimonies, particularly when a hearing isn’t accompanied by a deeper investigation.

Biden’s cybersecurity dream team takes shape

President Biden has named two former National Security Agency veterans to senior government cybersecurity positions, including the first national cyber director.

The appointments, announced Monday, land after the discovery of two cyberattacks linked to foreign governments earlier this year — the Russian espionage campaign that planed backdoors in U.S. technology giant SolarWinds’ technology to hack into at least nine federal agencies, and the mass exploitation of Microsoft Exchange servers linked to hackers backed by China.

Jen Easterly, a former NSA official under the Obama administration who helped to launch U.S. Cyber Command, has been nominated as the new head of CISA, the cybersecurity advisory unit housed under Homeland Security. CISA has been without a head for six months after then-President Trump fired former director Chris Krebs, who Trump appointed to lead the agency in 2018, for disputing Trump’s false claims of election hacking.

Biden has also named former NSA deputy director John “Chris” Inglis as national cyber director, a new position created by Congress late last year to be housed in the White House, charged with overseeing the defense and cybersecurity budgets of civilian agencies.

Inglis is expected to work closely with Anne Neuberger, who in January was appointed as the deputy national security adviser for cyber on the National Security Council. Neuberger, a former NSA executive and its first director of cybersecurity, was tasked with leading the government’s response to the SolarWinds attack and Exchange hacks.

Biden has also nominated Rob Silvers, a former Obama-era assistant secretary for cybersecurity policy, to serve as undersecretary for strategy, policy, and plans at Homeland Security. Silvers was recently floated for the top job at CISA.

Both Easterly and Silvers’ positions are subject to Senate confirmation. The appointments were first reported by The Washington Post.

Former CISA director Krebs praised the appointments as “brilliant picks.” Dmitri Alperovitch, a former CrowdStrike executive and chair of Silverado Policy Accelerator, called the appointments the “cyber equivalent of the dream team.” In a tweet, Alperovitch said: “The administration could not have picked three more capable and experienced people to run cyber operations, policy and strategy alongside Anne Neuberger.”

Neuberger is replaced by Rob Joyce, a former White House cybersecurity czar, who returned from a stint at the U.S. Embassy in London earlier this year to serve as NSA’s new cybersecurity director.

Last week, the White House asked Congress for $110 million in new funding for next year to help Homeland Security to improve its defenses and hire more cybersecurity talent. CISA hemorrhaged senior staff last year after several executives were fired by the Trump administration or left for the private sector.

Biden proposes gun control reforms to go after ‘ghost guns’ and close loopholes

President Biden has announced a new set of initiatives by which he hopes to curb the gun violence he described as “an epidemic” and “an international embarrassment.” Among other things, the ATF will be closing loopholes in unregulated online sales and so-called “ghost guns,” which can be built or printed with no serial numbers or background checks.

Speaking in the White House Rose Garden Thursday afternoon, Biden recounted the many recent mass shootings as horrific tragedies, but pointed out that over a hundred people are shot every day in this country. “This is an epidemic, for God’s sake,” he repeated, “and it has to stop.”

Before outlining his plans for combating the problem, he made sure to address the inevitable Second Amendment objections from people who believe it is a Constitutional right for anyone to own things like assault rifles.

“Nothing I’m about to recommend in any way impinges on the Second Amendment,” Biden said. “From the very beginning, you couldn’t own any weapon you wanted to own. From the very beginning of the Second Amendment existing, certain people weren’t allowed to have weapons.”

Of course federal laws often conflict with state laws on this point, giving rise to surprising sights like heavily armed protestors taking over the Michigan capitol building — quite legally. But the feds do have a few tricks up their sleeves.

Background checks and registration tracking involve federal authorities, and there are loopholes that have appeared or worsened over recent years as online traffic in guns has increased (social networks are notorious for thinly veiled gun trade) and the process of building weapons at home has become easier.

“I have directed ATF to begin work on an updated study of gun trafficking, one that takes into account the fact that modern guns are not simply cast or forged any more, but can be made of plastic, printed on a 3D printer, or sold in self assembly kits,” said U.S. Attorney General Merrick Garland, who took the podium after Biden. “We will ensure that we understand and measure the problem of criminal gun trafficking in a data driven way.”

“Ghost guns” were a hot topic a few years back when several people and organizations, among them Defense Distributed, attempted to popularize 3D-printed pistols and assault rifle components. The high-tech angle made the media bite, though of course traditional gun trafficking in the form of smuggling and in-person sales dwarf the scale of anything these sites and services delivered.

But gun building kits do represent a significant loophole in the ATF’s regulations, which do not require registration or background checks for them. So a person can get 80% of a gun that way, get the other 20% (usually the “receiver,” which component qualifies the assembly as a firearm) by printing or another method, and have a gun with no serial number or registration whatsoever.

Garland has proposed a rule for the ATF to adopt that would change this and a few other things, such as easily purchased modifications for pistols that effectively make them into short-barreled rifles; the new rule would require those conversion kits to be registered. This presumably will follow the confirmation of the ATF’s first director in five years — the position was vacant for the whole last administration — David Chipmen, whom Biden plans to nominate.

Other efforts by the administration include a $5 billion, 8-year investment in community violence intervention programs, a push for “red flag” laws that temporarily bar people in crisis from obtaining guns, and a nudge for Congress to start working on legislation that addresses things the Executive can’t.

Lawmakers press Instagram for details on its plans for kids

A group of Democratic lawmakers wrote to Mark Zuckerberg this week to press the CEO on his plans to curate a version of Instagram for children. In a hearing last month, Zuckerberg confirmed reporting by BuzzFeed that the company was exploring an age-gated version of its app designed for young users.

Senators Ed Markey (D-MA), Richard Blumenthal (D-CT) and Representatives Lori Trahan (D-MA) and Kathy Castor (D-FL) signed the letter, expressing “serious concerns” about the company’s ability to protect the privacy and well-being of young users.

“Facebook has an obligation to ensure that any new platforms or projects targeting children put those users’ welfare first, and we are skeptical that Facebook is prepared to fulfill this obligation,” the lawmakers wrote.

They cited previous failures with products like Messenger Kids, which had a flaw that allowed kids to chat with people beyond their privacy parameters.

“Although software bugs are common, this episode illustrated the privacy threats to children online and evidenced Facebook’s inability to protect the kids the company actively invited onto this platform,” the lawmakers wrote.

“In light of these and other previous privacy and security issues on Facebook’s platforms, we are not confident that Facebook will be able to adequately protect children’s privacy on a version of Instagram for young users.”

The letter set a deadline of April 26 for the company to provide answers to a comprehensive and helpfully specific set of questions about a future kid-targeted product.

In the letter, lawmakers posed a number of questions about how Facebook will handle the private data for young users and if that data would be deleted when an account is terminated. They also asked the company to commit to not targeting kids with ads and not employing push alerts and behavior-shaping features designed to make apps more addictive.

During last month’s big tech hearing in the House, committee members from both political parties grilled Zuckerberg about how Facebook and Instagram adversely affect mental health in young users. Rep. Castor also pressed the chief executive about underage users who circumvent Instagram’s existing age guidelines to use a platform full of posts, videos and ads designed for adults.

“Of course, every parent knows there are kids under the age of 13 on Instagram, and the problem is that you know it,” Zuckerberg said.

Clarence Thomas plays a poor devil’s advocate in floating First Amendment limits for tech companies

Supreme Court Justice Clarence Thomas flaunted a dangerous ignorance regarding matters digital in an opinion published today. In attempting to explain the legal difficulties of social media platforms, particularly those arising from Twitter’s ban of Trump, he makes an ill-informed, bordering on bizarre, argument as to why such companies may need their First Amendment rights curtailed.

There are several points on which Thomas seems to willfully misconstrue or misunderstand the issues.

The first is in his characterization of Trump’s use of Twitter. You may remember that several people sued after being blocked by Trump, alleging that his use of the platform amounted to creating a “public forum” in a legal sense, meaning it was unlawful to exclude anyone from it for political reasons. (The case, as it happens, was rendered moot after its appeal and dismissed by the court except as a Thomas’s temporary soapbox.)

“But Mr. Trump, it turned out, had only limited control of the account; Twitter has permanently removed the account from the platform,” writes Thomas. “[I]t seems rather odd to say something is a government forum when a private company has unrestricted authority to do away with it.”

Does it? Does it seem odd? Because a few paragraphs later, he uses the example of a government agency using a conference room in a hotel to hold a public hearing. They can’t kick people out for voicing their political opinions, certainly, because the room is a de facto public forum. But if someone is loud and disruptive, they can ask hotel security to remove that person, because the room is de jure a privately owned space.

Yet the obvious third example, and the one clearly most relevant to the situation at hand, is skipped. What if it is the government representatives who are being loud and disruptive, to the point where the hotel must make the choice whether to remove them?

It says something that this scenario, so remarkably close a metaphor for what actually happened, is not considered. Perhaps it casts the ostensibly “odd” situation and actors in too clear a light, for Thomas’s other arguments suggest he is not for clarity here but for muddying the waters ahead of a partisan knife fight over free speech.

In his best “I’m not saying, I’m just saying” tone, Thomas presents his reasoning why, if the problem is that these platforms have too much power over free speech, then historically there just happen to be some legal options to limit that power.

Thomas argues first, and worst, that platforms like Facebook and Google may amount to “common carriers,” a term that goes back centuries to actual carriers of cargo, but which is now a common legal concept that refers to services that act as simple distribution – “bound to serve all customers alike, without discrimination.” A telephone company is the most common example, in that it cannot and does not choose what connections it makes, nor what conversations happen over those connections – it moves electric signals from one phone to another.

But as he notes at the outset of his commentary, “applying old doctrines to new digital platforms is rarely straightforward.” And Thomas’s method of doing so is spurious.

“Though digital instead of physical, they are at bottom communications networks, and they ‘carry’ information from one user to another,” he says, and equates telephone companies laying cable with companies like Google laying “information infrastructure that can be controlled in much the same way.”

Now, this is certainly wrong. So wrong in so many ways that it’s hard to know where to start and when to stop.

The idea that companies like Facebook and Google are equivalent to telephone lines is such a reach that it seems almost like a joke. These are companies that have built entire business empires by adding enormous amounts of storage, processing, analysis, and other services on top of the element of pure communication. One might as easily suggest that because computers are just a simple piece of hardware that moves data around, that Apple is a common carrier as well. It’s really not so far a logical leap!

There’s no real need to get into the technical and legal reasons why this opinion is wrong, however, because these grounds have been covered so extensively over the years, particularly by the FCC — which the Supreme Court has deferred to as an expert agency on this matter. If Facebook were a common carrier (or telecommunications service), it would fall under the FCC’s jurisdiction — but it doesn’t, because it isn’t, and really, no one thinks it is. This has been supported over and over, by multiple FCCs and administrations, and the deferral is itself a Supreme Court precedent that has become doctrine.

In fact, and this is really the cherry on top, freshman Justice Kavanaugh in a truly stupefying legal opinion a few years ago argued so far in the other direction that it became wrong in a totally different way! It was Kavanaugh’s considered opinion that the bar for qualifying as a common carrier was actually so high that even broadband providers don’t qualify for it (This was all in service of taking down net neutrality, a saga we are in danger of resuming soon). As his erudite colleague Judge Srinivasan explained to him at the time, this approach too is embarrassingly wrong.

Looking at these two opinions, of two sitting conservative Supreme Court Justices, you may find the arguments strangely at odds, yet they are wrong after a common fashion.

Kavanaugh claims that broadband providers, the plainest form of digital common carrier conceivable, are in fact providing all kinds sophisticated services over and above their functionality as a pipe (they aren’t). Thomas claims that companies actually providing all kinds of sophisticated services are nothing more than pipes.

Simply stated, these men have no regard for the facts but have chosen the definition that best suits their political purposes: for Kavanaugh, thwarting a Democrat-led push for strong net neutrality rules; for Thomas, asserting control over social media companies perceived as having an anti-conservative bias.

The case Thomas uses for his sounding board on these topics was rightly rendered moot — Trump is no longer president and the account no longer exists — but he makes it clear that he regrets this extremely.

“As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms,” he concludes. “The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions. This petition, unfortunately, affords us no opportunity to confront them.”

Between the common carrier argument and questioning the form of Section 230 (of which in this article), Thomas’s hypotheticals break the seals on several legal avenues to restrict First Amendment rights of digital platforms, as well as legitimizing those (largely on one side of the political spectrum) who claim a grievance along these lines. (Slate legal commentator Mark Joseph Stern, who spotted the opinion early, goes further, calling Thomas’s argument a “paranoid Marxist delusion” and providing some other interesting context.)

This is not to say that social media and tech do not deserve scrutiny on any number of fronts — they exist in an alarming global vacuum of regulatory powers, and hardly anyone would suggest they have been entirely responsible with this freedom. But the arguments of Thomas and Kavanaugh stink of cynical partisan sophistry. This endorsement by Thomas amounts accomplishes nothing legally, but will provide valuable fuel for the bitter fires of contention — though they hardly needed it.

The Supreme Court sided with Google in its epic copyright fight against Oracle

The highest court in the land has a lot to say about tech this week. The Supreme Court weighed in on Google’s long legal battle with Oracle on Monday, overturning a prior victory for the latter company that could have resulted in an $8 billion award.

In a 6-2 decision, the court ruled that Google didn’t break copyright laws when it incorporated pieces of Oracle’s Java software language into its own mobile operating system. Google copied Oracle’s code for Java APIs for Android, and the case kicked off a yearslong debate over the reuse of established APIs and copyright.

In 2018, a federal appeals court ruled that Google did in fact violate copyright law by using the APIs and that its implementation didn’t fall under fair use.

“In reviewing that decision, we assume, for argument’s sake, that the material was copyrightable. But we hold that the copying here at issue nonetheless constituted a fair use. Hence, Google’s copying did not violate the copyright law,” Justice Stephen Breyer wrote in the decision, which reverses Oracle’s previous win. Justices Samuel Alito and Clarence Thomas dissented.

“Google’s copying of the Java SE API, which included only those lines of code that were needed to allow programmers to put their accrued talents to work in a new and transformative program, was a fair use of that material as a matter of law,” Breyer wrote.

Google SVP of Global Affairs Kent Walker called the ruling, embedded below, a “big win for innovation, interoperability & computing.”

Click to access 18-956_d18f.pdf