It’s official: Brexit campaign broke the law — with social media’s help

The UK’s Electoral Commission has published the results of a near nine-month-long investigation into Brexit referendum spending and has found that the official Vote Leave campaign broke the law by breaching election campaign spending limits.

Vote Leave broke the law including by channeling money to a Canadian data firm, AggregateIQ, to use for targeting political advertising on Facebook’s platform, via undeclared joint working with another Brexit campaign, BeLeave, it found.

Aggregate IQ remains the subject of a separate joint investigation by privacy watchdogs in Canada and British Columbia.

The Electoral Commission’s investigation found evidence that BeLeave spent more than £675,000 with AggregateIQ under a common arrangement with Vote Leave. Yet the two campaigns had failed to disclose on their referendum spending returns that they had a common plan.

As the designated lead leave campaign, Vote Leave had a £7M spending limit under UK law. But via its joint spending with BeLeave the Commission determined it actually spent £7,449,079 — exceeding the legal spending limit by almost half a million pounds.

The June 2016 referendum in the UK resulted in a narrow 52:48 majority for the UK to leave the European Union. Two years on from the vote, the government has yet to agree a coherent policy strategy to move forward in negotiations with the EU, leaving businesses to suck up ongoing uncertainty and society and citizens to remain riven and divided.

Meanwhile, Facebook — whose platform played a key role in distributing referendum messaging — booked revenue of around $40.7BN in 2017 alone, reporting a full year profit of almost $16BN.

Back in May, long-time leave supporter and MEP, Nigel Farage, told CEO Mark Zuckerberg to his face in the European Parliament that without “Facebook and other forms of social media there is no way that Brexit or Trump or the Italian elections could ever possibly have happened”.

The Electoral Commission’s investigation focused on funding and spending, and mainly concerned five payments made to Aggregate IQ in June 2016 — payments made for campaign services for the EU Referendum — by the three Brexit campaigns it investigated (the third being: Veterans for Britain).

Veterans for Britain’s spending return included a donation of £100,000 that was reported as a cash donation received and accepted on 20 May 2016. But the Commission found this was in fact a payment by Vote Leave to Aggregate IQ for services provided to Veterans for Britain in the final days of the EU Referendum campaign. The date was also incorrectly reported: It was actually paid by Vote Leave on 29 June 2016.

Despite the donation to a third Brexit campaign by the official Vote Leave campaign being for services provided by Aggregate IQ, which was also simultaneously providing services to Vote Leave, the Commission did not deem it to constitute joint working, writing: “[T]he evidence we have seen does not support the concern that the services were provided to Veterans for Britain as joint working with Vote Leave.”

It was, however, found to constitute an inaccurate donation report — another offense under the UK’s Political Parties, Elections and Referendums Act 2000.

The report details multiple issues with spending returns across the three campaigns. And the Commission has issued a series of fines to the three Brexit campaigns.

It has also referred two individuals — Vote Leave’s David Alan Halsall and BeLeave’s Darren Grimes — to the UK’s Metropolitan Police Service, which has the power to instigate a criminal investigation.

Early last year the Commission decided not to fully investigate Vote Leave’s spending but by October it says new information had emerged — which suggested “a pattern of action by Vote Leave” — so it revisited the assessment and reopened an investigation in November.

Its report also makes it clear that Vote Leave failed to co-operate with its investigation — including by failing to produce requested information and documents; by failing to provide representatives for interview; by ignoring deadlines to respond to formal investigation notices; and by objecting to the fact of the investigation, including suggesting it would judicially review the opening of the investigation.

Judging by the Commission’s account, Vote Leave seemingly did everything it could to try to thwart and delay the investigation — which is only reporting now, two years on from the Brexit vote and with mere months of negotiating time left before the end of the formal Article 50 exit notification process.

What’s crystal clear from this report is that following money and data trails takes time and painstaking investigation, which — given that, y’know, democracy is at stake — heavily bolsters the case for far more stringent regulations and transparency mechanisms to prevent powerful social media platforms from quietly absorbing politically motivated money and messaging without recognizing any responsibility to disclose the transactions, let alone carry out due diligence on who or what may be funding the political spending.

The political ad transparency measures that Facebook has announced so far come far too late for Brexit — or indeed, for the 2016 US presidential election when its platform carried and amplifiedKremlin funded divisive messaging which reached the eyeballs of hundreds of millions of US voters.

Last week the UK’s information commissioner, Elizabeth Denham, criticized Facebook for transparency and control failures relating to political ads on its platform, and also announced its intention to fine Facebook the maximum possible for breaches of UK data protection law relating to the Cambridge Analytica scandal, after it emerged that information on as many as 87 million Facebook users was extracted from its platform and passed to a controversial UK political consultancy without most people’s knowledge or consent.

She also published a series of policy recommendations around digital political campaigning — calling for an ethical pause on the use of personal data for political ad targeting, and warning that a troubling lack of transparency about how people’s data is being used risks undermining public trust in democracy

“Without a high level of transparency – and therefore trust amongst citizens that their data is being used appropriately – we are at risk of developing a system of voter surveillance by default,” she warned.

The Cambridge Analytica Facebook scandal is linked to the Brexit referendum via AggregateIQ — which was also a contractor for Cambridge Analytica, and also handled Facebook user information which the former company had improperly obtained, after paying a Cambridge University academic to use a quiz app to harvest people’s data and use it to create psychometric profiles for ad targeting.

The Electoral Commission says it was approached by Facebook during the Brexit campaign spending investigation with “some information about how Aggregate IQ used its services during the EU Referendum campaign”.

We’ve reached out to Facebook for comment on the report and will update this story with any response.

The Commission states that evidence from Facebook indicates that AggregateIQ used “identical target lists for Vote Leave and BeLeave ads”, although at least in one instance the BeLeave ads “were not run”.

It writes:

BeLeave’s ability to procure services from Aggregate IQ only resulted from the actions of Vote Leave, in providing those donations and arranging a separate donor for BeLeave. While BeLeave may have contributed its own design style and input, the services provided by Aggregate IQ to BeLeave used Vote Leave messaging, at the behest of BeLeave’s campaign director. It also appears to have had the benefit of Vote Leave data and/or data it obtained via online resources set up and provided to it by Vote Leave to target and distribute its campaign material. This is shown by evidence from Facebook that Aggregate IQ used identical target lists for Vote Leave and BeLeave ads, although the BeLeave ads were not run.

“We also asked for copies of the adverts Aggregate IQ placed for BeLeave, and for details of the reports he received from Aggregate IQ on their use. Mr Grimes replied to our questions,” it further notes in the report.

At the height of the referendum campaign — at a crucial moment when Vote Leave had reached its official spending limit — officials from the official leave campaign persuaded BeLeave’s only other donor, an individual called Anthony Clake, to allow it to funnel a donation from him directly to Aggregate IQ, who Vote Leave campaign director Dominic Cummins dubbed a bunch of “social media ninjas”.

The Commission writes:

On 11 June 2016 Mr Cummings wrote to Mr Clake saying that Vote Leave had all the money it could spend, and suggesting the following: “However, there is another organisation that could spend your money. Would you be willing to spend the 100k to some social media ninjas who could usefully spend it on behalf of this organisation? I am very confident it would be well spent in the final crucial 5 days. Obviously it would be entirely legal. (sic)”

Mr Clake asked about this organisation. Mr Cummings replied as follows: “the social media ninjas are based in canada – they are extremely good. You would send your money directly to them. the organisation that would legally register the donation is a permitted participant called BeLeave, a “young people’s organisation”. happy to talk it through on the phone though in principle nothing is required from you but to wire money to a bank account if you’re happy to take my word for it. (sic)

Mr Clake then emailed Mr Grimes to offer a donation to BeLeave. He specified that this donation would made “via the AIQ account.”

And while the Commission says it found evidence that Grimes and others from BeLeave had “significant input into the look and design of the BeLeave adverts produced by Aggregate IQ”, it also determined that Vote Leave messaging was “influential in their strategy and design” — hence its determination of a common plan between the two campaigns. Aggregate IQ was the vehicle used by Vote Leave to breech its campaign spending cap.

Providing examples of the collaboration it found between the two campaigns, the Commission quotes internal BeLeave correspondence — including an instruction from Grimes to: “Copy and paste lines from Vote Leave’s briefing room in a BeLeave voice”.

It writes:

On 15 June 2016 Mr Grimes told other BeLeave Board members and Aggregate IQ that BeLeave’s ads needed to be: “an effective way of pushing our more liberal and progressive message to an audience which is perhaps not as receptive to Vote Leave’s messaging.”

On 17 June 2016 Mr Grimes told other BeLeave Board members: “So as soon as we can go live. Advertising should be back on tomorrow and normal operating as of Sunday. I’d like to make sure we have loads of scheduled tweets and Facebook status. Post all of those blogs including Shahmirs [aka Shahmir Sami; who became a BeLeave whistleblower], use favstar to check out and repost our best performing tweets. Copy and paste lines from Vote Leave’s briefing room in a BeLeave voice”

Russian hackers used bitcoin to fund election interference, so prepare for FUD

The indictment filed today against 12 Russians accused of, among other things, hacking the DNC and undermining Hillary Clinton’s campaign also notes that the alleged hackers paid for their nefarious deeds with bitcoin and other cryptocurrencies. This unsavory application of one of tech’s current darlings will almost certainly be wielded against it by opportunists of all stripes.

It is perhaps the most popular and realistic argument against cryptocurrency that it enables anonymous transactions globally and at scale, no exception made for Russian intelligence or ISIS. So the news that a prominent and controversial technology was used to fund state-sponsored cyber attacks will not be passed over by its critics.

You can expect bluster on cable news and some sharp words from lawmakers, who will also probably issue some kind of public denouncement of cryptocurrencies and call for more stringent regulation. It’s only natural: their constituencies will hear that Russians are using bitcoin to hack the election systems and take it at face value. They have to say something.

But this knee-jerk criticism is misguided and hypocritical for several reasons.

First is that it’s not as anonymous and mysterious as critics make out. The details in the indictment actually provide an interesting example (far from the first) of the limits of cryptocurrency’s ability to obscure its users’ activities.

The painstaking research of the special investigator’s team revealed the approximate amounts and methods involved, and although there is a veneer of anonymity in that addresses are not inherently tied to identities, it is far from impossible to establish ownership. Not that they didn’t try, as the indictment shows:

The Defendants conspired to launder the equivalent of more than $95,000 through a web of transactions structured to capitalize on the perceived anonymity of cryptocurrencies such as bitcoin.

They also enlisted the assistance of one or more third-party exchangers who facilitated layers transactions through digital currency exchange platforms providing heightened anonymity.

But the process of laundering, after all, becomes rather difficult when there is an immutable, peer-maintained record of every penny being pushed around. Small slip-ups in the team’s operational security allowed investigators to tie, for example, an email address used to access a given bitcoin wallet with the one used to pay for a VPN.

[U]sing funds in a bitcoin address, the Conspirators purchased a VPN account, which they later used to log into the @Guccifer_2 Twitter account. The remaining funds from that bitcoin address were then used […] to lease a Malaysian server that hosted the dcleaks.com website.

It’s likely that the very same distributed ledger technology that allows for anonymous international payments in the first place also creates an invaluable investigative tool for those savvy enough to take advantage of it. So although bitcoin has its shady side, it’s far from perfect secrecy, especially when exposed to the privileges of a federal investigative team.

The second reason the criticism will be hollow is that it doesn’t provide much in the way of new capabilities for those who wish to keep secret their activities online.

There are established methods used by nation-states and garden-variety hackers and criminals alike that minimize or eliminate the possibility of tracking. Money laundering is performed at huge volumes worldwide and there are shady banks, loopholes and puppet organizations peppered across the globe.

Cryptocurrencies are convenient for paying for things online because there are a number of vendors (dwindling, but they exist) that accept it straight, or if one is not available it is reasonably liquid and can be shifted easily. I feel sure that our own intelligence services are making good use of it.

On that note is the third reason this FUD will be risible: If we are going to address the problem of dark money influencing politics, using bitcoin for hacking activities doesn’t even amount to a rounding error and it is cynical prestidigitation that makes it appear more than such.

I won’t belabor the point, because it is surely topmost in many an American’s mind that cash funneled through Super PACs and offshore accounts, backroom deals and stock trades, favors for lobbyists and corporate “donators” and 20 other forms of pay-for-play in Washington are more of a clear and present danger than a handful of Russian operatives ineffectually obscuring peanuts payments for hosting fees and bribes.

Perhaps the administration would prefer scripture: “Why do you see the speck that is in your brother’s eye, but do not notice the log that is in your own eye?”

If anything these indictments are evidence only that cryptocurrency is here to stay, usable by you, or me, or an rival nation-state, or our own — just like any other financial instrument.

As facial recognition technology becomes pervasive, Microsoft (yes, Microsoft) issues a call for regulation

Technology companies have a privacy problem. They’re terribly good at invading ours and terribly negligent at protecting their own.

And with the push by technologists to map, identify and index our physical as well as virtual presence with biometrics like face and fingerprint scanning, the increasing digital surveillance of our physical world is causing some of the companies that stand to benefit the most to call out to government to provide some guidelines on how they can use the incredibly powerful tools they’ve created.

That’s what’s behind today’s call from Microsoft President Brad Smith for government to start thinking about how to oversee the facial recognition technology that’s now at the disposal of companies like Microsoft, Google, Apple and government security and surveillance services across the country and around the world.

In what companies have framed as a quest to create “better,” more efficient and more targeted services for consumers, they have tried to solve the problem of user access by moving to increasingly passive (for the user) and intrusive (by the company) forms of identification — culminating in features like Apple’s Face ID and the frivolous filters that Snap overlays over users’ selfies.

Those same technologies are also being used by security and police forces in ways that have gotten technology companies into trouble with consumers or their own staff. Amazon has been called to task for its work with law enforcement, Microsoft’s own technologies have been used to help identify immigrants at the border (indirectly aiding in the separation of families and the virtual and physical lockdown of America against most forms of immigration) and Google faced an internal company revolt over the facial recognition work it was doing for the Pentagon.

Smith posits this nightmare scenario:

Imagine a government tracking everywhere you walked over the past month without your permission or knowledge. Imagine a database of everyone who attended a political rally that constitutes the very essence of free speech. Imagine the stores of a shopping mall using facial recognition to share information with each other about each shelf that you browse and product you buy, without asking you first. This has long been the stuff of science fiction and popular movies – like “Minority Report,” “Enemy of the State” and even “1984” – but now it’s on the verge of becoming possible.

What’s impressive about this is the intimation that it isn’t already happening (and that Microsoft isn’t enabling it). Across the world, governments are deploying these tools right now as ways to control their populations (the ubiquitous surveillance state that China has assembled, and is investing billions of dollars to upgrade, is just the most obvious example).

In this moment when corporate innovation and state power are merging in ways that consumers are only just beginning to fathom, executives who have to answer to a buying public are now pleading for government to set up some rails. Late capitalism is weird.

But Smith’s advice is prescient. Companies do need to get ahead of the havoc their innovations can wreak on the world, and they can look good while doing nothing by hiding their own abdication of responsibility on the issue behind the government’s.

“In a democratic republic, there is no substitute for decision making by our elected representatives regarding the issues that require the balancing of public safety with the essence of our democratic freedoms. Facial recognition will require the public and private sectors alike to step up – and to act,” Smith writes.

The fact is, something does, indeed, need to be done.

As Smith writes, “The more powerful the tool, the greater the benefit or damage it can cause. The last few months have brought this into stark relief when it comes to computer-assisted facial recognition – the ability of a computer to recognize people’s faces from a photo or through a camera. This technology can catalog your photos, help reunite families or potentially be misused and abused by private companies and public authorities alike.”

All of this takes on faith that the technology actually works as advertised. And the problem is, right now, it doesn’t.

In an op-ed earlier this month, Brian Brackeen, the chief executive of a startup working on facial recognition technologies, pulled back the curtains on the industry’s not-so-secret huge problem.

Facial recognition technologies, used in the identification of suspects, negatively affects people of color. To deny this fact would be a lie.

And clearly, facial recognition-powered government surveillance is an extraordinary invasion of the privacy of all citizens — and a slippery slope to losing control of our identities altogether.

There’s really no “nice” way to acknowledge these things.

Smith, himself admits that the technology has a long way to go before it’s perfect. But the implications of applying imperfect technologies are vast — and in the case of law enforcement, not academic. Designating an innocent bystander or civilian as a criminal suspect influences how police approach an individual.

Those instances, even if they amount to only a handful, would lead me to argue that these technologies have no business being deployed in security situations.

As Smith himself notes, “Even if biases are addressed and facial recognition systems operate in a manner deemed fair for all people, we will still face challenges with potential failures. Facial recognition, like many AI technologies, typically have some rate of error even when they operate in an unbiased way.”

While Smith lays out the problem effectively, he’s less clear on the solution. He’s called for a government “expert commission” to be empaneled as a first step on the road to eventual federal regulation.

That we’ve gotten here is an indication of how bad things actually are. It’s rare that a tech company has pleaded so nakedly for government intervention into an aspect of its business.

But here’s Smith writing, “We live in a nation of laws, and the government needs to play an important role in regulating facial recognition technology. As a general principle, it seems more sensible to ask an elected government to regulate companies than to ask unelected companies to regulate such a government.”

Given the current state of affairs in Washington, Smith may be asking too much. Which is why perhaps the most interesting — and admirable — call from Smith in his post is for technology companies to slow their roll.

We recognize the importance of going more slowly when it comes to the deployment of the full range of facial recognition technology,” writes Smith. “Many information technologies, unlike something like pharmaceutical products, are distributed quickly and broadly to accelerate the pace of innovation and usage. ‘Move fast and break things’ became something of a mantra in Silicon Valley earlier this decade. But if we move too fast with facial recognition, we may find that people’s fundamental rights are being broken.”

Facebook would make a martyr by banning Infowars

Alex Jones’ Infowars is a fake news-peddler. But Facebook deleting its Page could ignite a fire that consumes the network. Still, some critics are asking why it hasn’t done so already.

This week Facebook held an event with journalists to discuss how it combats fake news. The company’s recently appointed head of News Feed John Hegeman explained that, “I guess just for being false, that doesn’t violate the community standards. I think part of the fundamental thing here is that we created Facebook to be a place where different people can have a voice.”

In response, CNN’s Oliver Darcy tweeted: “I asked them why InfoWars is still allowed on the platform. I didn’t get a good answer.” BuzzFeed’s Charlie Warzel meanwhile wrote that allowing the Infowars Page to exist shows that “Facebook simply isn’t willing to make the hard choices necessary to tackle fake news.”

Facebook’s own Twitter account tried to rebuke Darcy by tweeting, “We see Pages on both the left and the right pumping out what they consider opinion or analysis – but others call fake news. We believe banning these Pages would be contrary to the basic principles of free speech.” 

But harm can be minimized without full-on censorship.

There is no doubt that Facebook hides behind political neutrality. It fears driving away conservative users for both business and stated mission reasons. That strategy is exploited by those like Jones who know that no matter how extreme and damaging their actions, they’ll benefit from equivocation that implies ‘both sides are guilty,’ with no regard for degree.

Instead of being banned from Facebook, Infowars and sites like it that constantly and purposely share dangerous hoaxes and conspiracy theories should be heavily down-ranked in the News Feed.

Effectively, they should be quarantined, so that when they or their followers share their links, no one else sees them.

“We don’t have a policy that stipulates that everything posted on Facebook must be true — you can imagine how hard that would be to enforce,” a Facebook spokesperson told TechCrunch. “But there’s a very real tension here. We work hard to find the right balance between encouraging free expression and promoting a safe and authentic community, and we believe that down-ranking inauthentic content strikes that balance. In other words, we allow people to post it as a form of expression, but we’re not going to show it at the top of News Feed.”

Facebook already reduces the future views of posts by roughly 80 percent when they’re established as false by its third-party fact checkers like Politifact and the Associated Press. For repeat offenders, I think that reduction in visibility should be closer to 100 percent of News Feed views. What Facebook does do to those whose posts are frequently labeled as false by its checkers is “remove their monetization and advertising privileges to cut off financial incentives, and dramatically reduce the distribution of all of their Page-level or domain-level content on Facebook.”

The company wouldn’t comment directly about whether Infowars has already been hit with that penalty, noting “We can’t disclose whether specific Pages or domains are receiving such a demotion (it becomes a privacy issue).” For any story fact checked as false, it shows related articles from legitimate publications to provide other perspectives on the topic, and notifies people who have shared it or are about to.

But that doesn’t solve for the initial surge of traffic. Unfortunately, Facebook’s limited array of fact checking partners are strapped with so much work, they can only get to so many BS stories quickly. That’s a strong endorsement for more funding to be dedicated to these organizations like Snopes, preferably by even keeled non-profits, though the risks of governments or Facebook chipping in might be worth it.

Given that fact-checking will likely never scale to be instantly responsive to all fake news in all languages, Facebook needs a more drastic option to curtail the spread of this democracy-harming content on its platform. That might mean a full loss of News Feed posting privileges for a certain period of time. That might mean that links re-shared by the supporters or agents of these pages get zero distribution in the feed.

But it shouldn’t mean their posts or Pages are deleted, or that their links can’t be opened unless they clearly violate Facebook’s core content policies.

Why downranking and quarantine? Because banning would only stoke conspiratorial curiosity about these inaccurate outlets. Trolls will use the bans as a badge of honor, saying, “Facebook deleted us because it knows what we say is true.”

They’ll claim they’ve been unfairly removed from the proxy for public discourse that exists because of the size of Facebook’s private platform.

What we’ll have on our hands is “but her emails!” 2.0

People who swallowed the propaganda of “her emails”, much of which was pushed by Alex Jones himself, assumed that Hillary Clinton’s deleted emails must have contained evidence of some unspeakable wrongdoing — something so bad it outweighed anything done by her opponent, even when the accusations against him had evidence and witnesses aplenty.

If Facebook deleted the Pages of Infowars and their ilk, it would be used as a rallying cry that Jones’ claims were actually clairvoyance. That he must have had even worse truths to tell about his enemies and so he had to be cut down. It would turn him into a martyr.

Those who benefit from Infowars’ bluster would use Facebook’s removal of its Page as evidence that it’s massively biased against conservatives. They’d push their political allies to vindictively regulate Facebook beyond what’s actually necessary. They’d call for people to delete their Facebook accounts and decamp to some other network that’s much more of a filter bubble than what some consider Facebook to already be. That would further divide the country and the world.

When someone has a terrible, contagious disease, we don’t execute them. We quarantine them. That’s what should happen here. The exception should be for posts that cause physical harm offline. That will require tough judgement calls, but knowing inciting mob violence for example should not be tolerated. Some of Infowars posts, such as those about Pizzagate that led to a shooting, might qualify for deletion by that standard.

Facebook is already trying to grapple with this after rumors and fake news spread through forwarded WhatsApp messages have led to crowds lynching people in India and attacks in Myanmar. Peer-to-peer chat lacks the same centralized actors to ban, though WhatsApp is now at least marking messages as forwarded, and it will need to do more. But for less threatening yet still blatantly false news, quarantining may be sufficient. This also leaves room for counterspeech, where disagreeing commenters can refute posts or share their own rebuttals.

Few people regularly visit the Facebook Pages they follow. They wait for the content to come to them through the News Feed posts of the Page, and their friends. Eliminating that virality vector would severely limit this fake news’ ability to spread without requiring the posts or Pages to be deleted, or the links to be rendered unopenable.

If Facebook wants to uphold a base level of free speech, it may be prudent to let the liars have their voice. However, Facebook is under no obligation to amplify that speech, and the fakers have no entitlement for their speech to be amplified.

Image Credit: Getty – Tom Williams/CQ Roll Call, Flickr Sean P. Anderson CC

Supreme Court nominee Brett Kavanaugh’s brutal education in net neutrality

DC Circuit Court Judge Brett Kavanaugh has been nominated for the position of Supreme Court Justice, and on this occasion I think it warranted that we revisit in detail the sound intellectual thrashing this man suffered at the hands of his colleagues just last year on the topic of the internet and net neutrality. Because Kavanaugh was very, very wrong then and gives every indication that he will take his ignorance unapologetically to the highest court in the land.

To set the scene: In 2015 the United States Telecom Association sued the FCC, alleging the Open Internet Order that passed earlier that year, establishing net neutrality as we know it — or rather, knew it — was illegal.

This highly watched case was heard late in 2015 and the decision was issued six months later, in June of 2016. DC Circuit Judges Srinivasan, Tatel and Williams ruled against the telecoms, essentially finding that the FCC was well within its jurisdiction in establishing net neutrality rules to begin with, and also that the rule as written was lawful.

Unsatisfied with this ruling, the USTA petitioned to have the case reheard “en banc,” meaning with all active circuit judges present. This petition was denied, primarily because the Open Internet Order was by that point in peril of replacement, and new deliberations would as likely as not soon be rendered moot.

But two judges had dissenting opinions to bruit, and so the court published them alongside the denial — though unfortunately for them Srinivasan used the same opportunity to demolish their arguments. It would have been better for them, in retrospect, if they had remained silent, rather than raising their profound ignorance like a dirty flag to be mocked and pointed at forever — as we do here today.

I covered this disaster in less detail then, because it was only one case and news story among many having to do with net neutrality, and having no official consequences (the motion, after all, was denied) it was only worth touching on in brief. But now, with Kavanaugh ascendant, I feel it is important to resurface his late folly as evidence of his unsuitability for the position to which he has been nominated. His dissent deeply misinterprets multiple Supreme Court decisions, demonstrates a profound lack of understanding about how the industry works and produces absurd results if taken to its logical conclusions.

I’ll present Kavanaugh’s arguments in good faith, since they were offered that way, and then summarize their point-by-point demolishment by Srinivasan, the FCC or common sense.

Wrong on jurisdiction

Kavanaugh’s first argument is that the FCC’s rule is illegal to begin with because it does not have authority to issue it. He cites what he calls the “major rules” doctrine, which is that an agency like the FCC requires clear and explicit permission from Congress to issue “decisions of ‘vast economic and political significance.’ ”

This makes perfect sense — there have to be limits so serious questions of policy aren’t defined by a small group of commissioners. He writes:

If an agency wants to exercise expansive regulatory authority over some major social or economic activity–regulating cigarettes, banning physician-assisted suicide, eliminating telecommunications rate-filing requirements, or regulating greenhouse gas emitters, for example–an ambiguous grant of statutory authority is not enough. Congress must clearly authorize an agency to take such a major regulatory action.

Congress has never enacted net neutrality legislation or clearly authorized the FCC to impose common-carrier obligations on Internet service providers.

As this is primarily a question of authority and precedent and not technology, I won’t go too into detail here. If you’re curious, this article goes into the various court and agency decisions that led to the 2015 rules.

In brief, however, the question comes down to whether Congress has authorized the FCC to make a decision like that made in the 2015 rules: to classify broadband providers as common carriers and exert its powerful Title II authority over them. Srinivasan explains that it most certainly is:

We have no need in this case to resolve the existence or precise contours of the major rules (or major questions) doctrine described by our colleagues. Assuming the existence of the doctrine as they have expounded it, and assuming further that the rule in this case qualifies as a major one so as to bring the doctrine into play, the question posed by the doctrine is whether the FCC has clear congressional authorization to issue the rule. The answer is yes. Indeed, we know Congress vested the agency with authority to impose obligations like the ones instituted by the Order because the Supreme Court has specifically told us so.

And it told us so in a 2005 decision known as Brand X — which Kavanaugh himself cites. In Brand X it was decided that the FCC could in fact define DSL as telecommunications but cable internet as an information service (again, the piece above has more context for these terms).

Kavanaugh argues that Brand X shows that the 1996 Telecommunications Act, from which the FCC derives its authority, is ambiguous in its definition of internet services. This ambiguity, he says, means there is no specific mandate from Congress to create a major rule such as net neutrality.

“That analysis,” Srinivasan explains in his enjoyable prose, “rests on a false equivalence: it incorrectly equates two distinct species of ambiguity.”

“Whereas Brand X found statutory ambiguity on whether ISPs are telecommunications providers, the decision found no statutory ambiguity on whether the FCC gets to answer that question,” he writes (emphasis mine). And once the Supreme Court decides something is legal, he concludes, “our inquiry is over.” Ouch.

It’s important to note here that Brand X isn’t some obscure case — it’s extremely influential and well-studied. Kavanaugh’s interpretation of it is exceptional in its backwardness, attempting to wring the complete opposite conclusion from what has been accepted for more than a decade. This kind of poor reasoning isn’t the kind you expect to find in a Supreme Court Justice.

Wrong on tech and wrong on free speech

But the question of jurisdiction is only prefatory to the main event, in which Kavanaugh truly embarrasses himself.

“Imposing common-carrier regulations on Internet service providers violates the First Amendment,” he writes. And to be clear, he’s talking about the First Amendment rights of the internet service providers. He cites the Supreme Court again, this time two cases from the ’90s involving Turner Broadcasting.

Some readers may already be exhibiting signs of skepticism. Turner Broadcasting? In the ’90s? Wasn’t that a completely different era and industry? It was, but Supreme Court decisions can be surprisingly broad and durable; precedents may stand for decades, if not centuries. So let’s hear Kavanaugh out, shall we?

The cases, he explained, had to do with Turner Broadcasting challenging “must-carry” rules that required cable operators to carry certain programming — local stations, for instance. Turner argued that the government requiring it to broadcast certain information infringed on its right to free speech. And indeed, although the court ultimately decided that the must-carry rules should be enforced, it was also acknowledged that Turner does indeed exert free speech rights when it decides what content to broadcast or not broadcast.

“The First Amendment’s basic principles ‘do not vary when a new and different medium for communication appears,’ ” he writes, “Although there of course can be some differences in how the ultimate First Amendment analysis plays out depending on the nature of (and competition in) a particular communications market.”

Starting from this solid ground, Kavanaugh immediately drifts into the hard vacuum of ignorance. Please remember that the following was written by someone nominated to be a Justice of the Supreme Court. I really can’t condense it because every sentence has, as Srinivasan might put it, a distinct species of ignorance (emphasis mine).

Here, of course, we deal with Internet service providers, not cable television operators. But Internet service providers and cable operators perform the same kinds of functions in their respective networks. Just like cable operators, Internet service providers deliver content to consumers. Internet service providers may not necessarily generate much content of their own, but they may decide what content they will transmit, just as cable operators decide what content they will transmit. Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes.

Indeed, some of the same entities that provide cable television service – colloquially known as cable companies – provide Internet access over the very same wires. If those entities receive First Amendment protection when they transmit television stations and networks, they likewise receive First Amendment protection when they transmit Internet content. It would be entirely illogical to conclude otherwise.

Setting aside the unprofessional and unjustified bravado that concludes this breathtaking little salvo, it really would take hours and thousands of words to explain satisfactorily, to Kavanaugh himself, all the different ways he is incorrect. I’ll attempt to satisfy the demands of posterity and brevity in summarizing them.

1. Packet-based internet service is fundamentally different from cable broadcasting, even if the latter has converted to packet-based transmission over the last decade. What they have in common is that they are transmitted as electrical impulses, sometimes over wires. It’s akin to the level of similarity between a telephone call (mostly also packet-based now) and a cable television signal.

2. The idea that because things are transmitted via the same medium, they are legally identical, is so mystifyingly naive and backwards that I’m surprised to see it in a legal document of any kind, let alone a judge’s official dissent in a major case. Just as a basic counter-example, what about radio waves? They are used in countless different capacities by countless different devices, many of which are differently regulated, subject to different laws, possessed of different capabilities and so on. What about DSL? It runs over telephone lines; should it be regulated like phone calls?

3. Outside some very basic and well-understood limits, internet service providers do not decide what content to deliver to users. And in many cases, thanks to encryption, they are totally unable to track (and therefore unable to control) what data they are providing. If all the traffic on the internet was encrypted and ISPs only transmitted data that was totally unintelligible to them, they would still be able to advertise and provide the exact same, highly valuable service to their users.

Kavanaugh does touch on, and dismiss, some of this as follows:

[T]he FCC argues (and the panel agreed) that Turner Broadcasting does not apply in this case because many Internet service providers do not actually exercise editorial discretion to favor some content over others… I find that argument mystifying.

It may be true that some, many, or even most Internet service providers have chosen not to exercise much editorial discretion, and instead have decided to allow most or all Internet content to be transmitted on an equal basis. But that “carry all comers” decision itself is an exercise of editorial discretion. Moreover, the fact that the Internet service providers have not been aggressively exercising their editorial discretion does not mean that they have no right to exercise their editorial discretion.

We have already established, of course, that ISPs not only do not decide what content to transmit, but that in many (approaching all) circumstances, it cannot do so. But beyond this elementary oversight, Kavanaugh has also failed to comprehend, or perhaps even to read, the rule he is railing against.

Because his exact argument is preemptively dealt with in the text of the rule itself, which in the first place defines entities affected by the rules as advertising and providing “the capability to transmit data to and receive data from all or substantially all Internet endpoints” — a definition that precludes editorial control. And if that’s too ambiguous for Kavanaugh, several paragraphs are dedicated to addressing his concerns in detail. Some excerpts:

As a factual matter, broadband Internet access services are nothing like the cable service at issue in Turner I.

Cable operators… both engage in and transmit speech with the intent to convey a message either through their own programming directly or through contracting with other programmers for placement in a cable package.

Broadband providers, however, display no such intent to convey a message in their provision of broadband Internet access services—they do not engage in speech themselves but serve as a conduit for the speech of others.

There’s more (paragraphs 544 to 549 or so) in the Open Internet Order if anyone (for instance, Judge Kavanaugh) is curious. And in case you are worried that these definitions and assertions have been found wanting by others or challenged by the parties affected, allow Srinivasan to set your mind at ease:

An ISP has no First Amendment right to engage in those kinds of practices [i.e. editorial content control]. No Supreme Court decision suggests otherwise. Indeed, although the two dissenting FCC Commissioners objected to the agency’s adoption of the rule on multiple grounds, neither suggested the rule poses any First Amendment issue. Similarly, the principal parties challenging the Order in this court, who collectively represent virtually every broadband provider—including all of the major ISPs—bring no First Amendment challenge to the rule.

Considering especially the length and thoroughness with which now-Chairman Ajit Pai excoriated the original rule, it may be expected that if there were free speech considerations, he would have brought them up. Likewise the many ISPs and trade organizations, which would have loved to have something like Constitutional grounds to challenge the order.

The only ones who bring up the issue are Kavanaugh and a tiny ISP in Texas called Alamo, which wanted to offer a “family-friendly” edited subset of the internet to its customers.

Funnily enough, this is permitted! And by publicly stating that it has no intention of providing access to “substantially all Internet endpoints,” Alamo would exempt itself from the net neutrality rules! Yes, you read that correctly — an ISP can opt out of the rules by changing its business model. They are, to Kavanaugh’s evident bafflement, essentially voluntary. But here’s Srinivasan again enlightening his colleague:

There is no need in this case to scrutinize the exact manner in which a broadband provider could render the FCC’s Order inapplicable by advertising to consumers that it offers an edited service rather than an unfiltered pathway. No party disputes that an ISP could do so if it wished, and no ISP has suggested an interest in doing so in this court.

In the event that an ISP nonetheless were to choose to hold itself out to consumers as offering them an edited service rather than indiscriminate internet access—despite the potential effect on its subscriber base—it could then bring itself outside the rule. In that sense, the rule could be characterized as “voluntary,” [as Kavanaugh describes it], but in much the same way that just about any regulation could be considered voluntary, insofar as a regulated entity could always transform its business to such an extent that it is no longer in the line of business covered by the regulation.

Wrong on the slippery slope

Lastly, not content to be wrong on several Supreme Court cases, the technical basis for the industry he is writing about or the rule itself he is suggesting is unconstitutional, Kavanaugh felt the need to offer, as a rancid cherry on top, a dose of FUD suggesting that if this rule (which as he sees it permits government tampering with free speech without evidence of monopoly) were lawful, the government could move on to regulating the speech of edge providers from Google and Facebook to this website:

If market power need not be shown, the Government could regulate the editorial decisions of Facebook and Google, of MSNBC and Fox, of NYTimes.com and WSJ.com, of YouTube and Twitter. Can the Government really force Facebook and Google and all of those other entities to operate as common carriers? Can the Government really impose forced-carriage or equal-access obligations on YouTube and Twitter? If the Government’s theory in this case were accepted, then the answers would be yes. After all, if the Government could force Internet service providers to carry unwanted content even absent a showing of market power, then it could do the same to all those other entities as well.

The vast and numerous differences between a broadband internet provider and a service like Facebook, let alone a press outlet like The New York Times, are perhaps unsurprisingly lost on Kavanaugh. Once more Srinivasan explains it concisely:

Those companies evidently do not share our colleague’s concern—all but one is a member of a group that supports the rule in this court.

That may be in part because those companies, in contrast with broadband ISPs, are not considered common carriers that hold themselves out as affording neutral, indiscriminate access to their platform without any editorial filtering.

The real slippery-slope concerns run in the reverse direction. Under our dissenting colleague’s approach, broadband ISPs would have a First Amendment entitlement to block and throttle content based on their own commercial preferences even if they had led customers to anticipate neutral and indiscriminate access to all internet content.

That’s the last thing on the long list of things about which Kavanaugh needed to be schooled in order to issue even a reasonably incorrect opinion on this subject.

This has been a rather long exposition, but I thought it was important that everyone see, in Kavanaugh’s own words, exactly how poor of a study he is, at least as far as this issue is concerned, and how little he seems to think through both his own arguments and those of others.

As Srinivasan notes, what Kavanaugh essentially suggests is that, against the explicit findings of several Supreme Court decisions, the regulators, and the regulated industry, internet providers should be granted free speech rights that allow them to arbitrarily limit the free speech of their users.

Is this the type of twisted logic, inadequate research and shallow understanding that we want in a Supreme Court Justice? I think not. Kavanaugh’s brash and embarrassing failure on this case alone is in my opinion generates sufficient doubt regarding his competence that his nomination should be denied.

U.S. Air Force drone documents found for sale on the dark web for $200

You never quite know what you’ll find on the dark web. In June, a threat intelligence team team known as Insikt Group at security research firm Recorded Future discovered the sale of sensitive U.S. military information in the course of monitoring criminal activity on dark web marketplaces.

Insikt explains that an English-speaking hacker purported to have documentation on the MQ-9 Reaper unmanned aerial vehicle. Remarkably, the hacker appears to have been selling the goods for “$150 or $200.”

According to Insikt Group, the documents were not classified but also contained sensitive materials including “the M1 Abrams maintenance manual, a tank platoon training course, a crew survival course, and documentation on improvised explosive device (IED) mitigation tactics.” Insikt notes that the other set of documents appears to have been stolen from a U.S. Army official or from the Pentagon but the source was not confirmed.

The hacker appeared to have joined the forum explicitly for the sale of these documents and acknowledged one other incident of military documents obtained from an unaware officer. In the course of its investigation, Insikt Group determined that the hacker obtained the documents by accessing a Netgear router with misconfigured FTP login credentials. When the team corresponded with the hacker to confirm the source of hacked drone documents, the attacker disclosed that he also had access to footage from a MQ-1 Predator drone.

Here’s how he did it:

“Utilizing Shodan’s popular search engine, the actors scanned large segments of the internet for high-profile misconfigured routers that use a standard port 21 to hijack all valuable documents from compromised machines.

“Utilizing the above-mentioned method, the hacker first infiltrated the computer of a captain at 432d Aircraft Maintenance Squadron Reaper AMU OIC, stationed at the Creech AFB in Nevada, and stole a cache of sensitive documents, including Reaper maintenance course books and the list of airmen assigned to Reaper AMU. While such course books are not classified materials on their own, in unfriendly hands, they could provide an adversary the ability to assess technical capabilities and weaknesses in one of the most technologically advanced aircrafts.”

Insikt Group notes that it is “incredibly rare” for hackers to sell military secrets on open marketplaces. “The fact that a single hacker with moderate technical skills was able to identify
several vulnerable military targets and exfiltrate highly sensitive information in a week’s
time is a disturbing preview of what a more determined and organized group with superior
technical and financial resources could achieve,” the group warns.

Court victory legalizes 3D-printable gun blueprints

A multi-year legal battle over the ability to distribute computer models of gun parts and replicate them in 3D printers has ended in defeat for government authorities who sought to prevent the practice. Cody Wilson, the gunmaker and free speech advocate behind the lawsuit, now intends to expand his operations, providing printable gun blueprints to all who desire them.

The longer story of the lawsuit is well told by Andy Greenberg over at Wired, but the decision is eloquent on its own. The fundamental question is whether making 3D models of gun components available online is covered by the free speech rights granted by the First Amendment.

This is a timely but complex conflict because it touches on two themes that happen to be, for many, ethically contradictory. Arguments for tighter restrictions on firearms are, in this case, directly opposed to arguments for the unfettered exchange of information on the internet. It’s hard to advocate for both here: restricting firearms and restricting free speech are one and the same.

That at least seems to be conclusion of the government lawyers, who settled Wilson’s lawsuit after years of court battles. In a copy of the settlement provided to me by Wilson, the U.S. government agrees to exempt “the technical data that is the subject of the Action” from legal restriction. The modified rules should appear in the Federal Register soon.

What does this mean? It means that a 3D model that can be used to print the components of a working firearm is legal to own and legal to distribute. You can likely even print it and use the product — you just can’t sell it. There are technicalities to the law here (certain parts are restricted, but can be sold in an incomplete state, etc.), but the implications as regards the files themselves seems clear.

Wilson’s original vision, which he is now pursuing free of legal obstacles, is a repository of gun models, called DEFCAD, much like any other collection of data on the web, though naturally considerably more dangerous and controversial.

“I currently have no national legal barriers to continue or expand DEFCAD,” he wrote in an email to TechCrunch. “This legal victory is the formal beginning to the era of downloadable guns. Guns are as downloadable as music. There will be streaming services for semi-automatics.”

The concepts don’t map perfectly, no doubt, but it’s hard to deny that with the success of this lawsuit, there are few legal restrictions to speak of on the digital distribution of firearms. Before it even, there were few technical restrictions: certainly just as you could download MP3s on Napster in 2002, you can download a gun file today.

Gun control advocates will no doubt argue that greater availability of lethal weaponry is the opposite of what is needed in this country. But others will point out that in a way this is a powerful example of how liberally free speech can be defined. It’s important to note that both of these things can be true.

This court victory settles one case, but marks the beginnings of many another. “I have promoted my values for years with great care and diligence,” Wilson wrote. It’s hard to disagree with that. Those whose values differ are free to pursue them in their own way; perhaps they too will be awarded victories of this scale.

California malls are sharing license plate tracking data with ICE

A chain of California shopping centers is sharing its license plate reader data with a well-known U.S. Immigration and Customs Enforcement (ICE) contractor, giving that agency the ability to track license plate numbers it captures in near real-time.

A report from the Electronic Frontier Foundation revealed that real estate group the Irvine Company shares that data with Vigilant Solutions, a private surveillance tech company that sells automated license plate recognition (ALPR) equipment to law enforcement and government agencies. The Irvine Company owns nearly 50 shopping centers across California with locations in Irvine, La Jolla, Newport Beach, Redwood City, San Jose, Santa Clara and Sunnyvale. ICE finalized its contract with Vigilant Solutions in January of this year.

EFF Investigative Researcher Dave Maass discovered Irvine Group’s data sharing activities in a page detailing its ALPR policy, a disclosure required by California law. Ironically, while Irvine Group’s ALPR usage and privacy policy does describe its own practice of deleting the license data it collects once transmitted, it admits that it does in fact transmit all of it straight to Vigilant Solutions, which has no such qualms.

As Vigilant describes, the key offering in its “advanced suite” of license reading tech is unfettered access to a massive trove of license plate data:

“A hallmark of Vigilant’s solution, the ability for agencies to share real-time data nationwide amongst over 1,000 agencies and tap into our exclusive commercial LPR database of over 5 billion vehicle detections, sets our platform apart. “

The Irvine Group is only one example of this kind of data sharing, but it illustrates the ubiquity of the kind of privately owned modern surveillance technology at the fingertips of anyone willing to pay for it. While we’re likely to see more state level legal challenges to license plate tracking technology, for now the powerful pairing of license plate numbers and location data is mostly fair game for anyone who wants to make money off of collecting and aggregating it.

Indianapolis vice cop says SESTA/FOSTA closure of Backpage has ‘blinded’ investigators

Online sex market Backpage was seized in April following new regulation intended to stem human trafficking, but the results haven’t been entirely positive. This story of Indianapolis cops reverting to pre-web tactics for catching pimps and others in the sex trade shows how the closure has taken away a valuable tool for keeping tabs on the unsavory but ineradicable industry.

Backpage, where prostitutes would list themselves and attract customers, let the whole business take place rather in gig economy fashion rather than out on the street.

As controversial as the sex industry is, it’s not going anywhere and at the very least most of us can agree that it should at least be conducted as safely as possible. And Backpage did at least provide some level of safety and regularity to it, even if it also contributed to worse issues like sex trafficking.

“We used to look at Backpage as a trap for human traffickers and pimps,” explained undercover vice investigator John Daggy to RTV6. “We would subpoena the ads and it would tell a lot of the story. Now, since it has gone down, we’re getting late reports of them and we don’t have much to go by.”

As evidence, in 2017 Indianapolis cops charged four pimps using Backpage data, and dozens of prostitution cases used it as well. But this year only one pimp has been charged, caught via old-school undercover work: a cop posing as a prospective prostitute.

That may be what the movies present vice investigations as, but the truth is that kind of work is extremely dangerous, not to mention time-consuming and difficult. Having a nice digital trail to follow or cite in court was clearly a godsend.

As critics noted earlier this year, SESTA/FOSTA has good intentions but a seriously flawed execution resulting in numerous unforeseen consequences. This decline in police effectiveness in vice investigations is one of them.

“I get the reasoning behind it, and the ethics behind it,” Daggy said. “However, it has blinded us.”

You should read the rest of the story, as it has context from others and is part of a series on the sex trade in the city.

European MEPs vote to reopen copyright debate over ‘censorship’ controversy

A 318-278 majority of MEPs in the European Parliament has just voted to reopen debate around a controversial digital copyright reform proposal — meaning it will now face further debate and scrutiny, rather than be fast-tracked towards becoming law via the standard EU trilogue negotiation process.

Crucially it means MEPs will have the chance to amend the controversial proposals.

Last month the EU parliament’s legal affairs committee approved the final text of the copyright proposal — including approving its two most controversial articles — kicking off a last ditch effort by groups opposed to what they dub the ‘link tax’ and ‘censorship machines’ to marshal MEPs to reopen debate and be able to amend the proposal.

The copyright reform is controversial largely on account of two articles:

  • Article 11 — which proposes to create a neighboring right for snippets of journalistic content in order to target news aggregator business models, like Google News, which publishers have long argued are unfairly profiting from their work.

Similar ancillary copyright laws have previously been enacted in Germany and Spain — and in the latter market, where the licensing requirement was not flexible, Google News closed up shop entirely, leading, say critics, to decreased traffic referrals to Spanish news sites.

  • Article 13 — which makes Internet platforms that host large amounts of user-uploaded content directly liable for copyright infringements by their users, and would likely push platforms such as YouTube towards pre-filtering all user generated content at the point of upload, with all the associated potential chilling effects if/when algorithms fail to recognize fair use of a copyrighted work, for instance.

Article 13 is arguably the more controversial element of the two, and it is certainly where opposition campaigning has been fiercest. Though it has strong support from musicians and the music industry who have spent years fighting YouTube, arguing it exploits legal protections around music videos viewed on its service and pays lower royalties than they are due.

In the opposition camp, a broad coalition of digital rights organizations, startup groups, Internet architects, computer scientists, academics and web advocates — including the likes of Sir Tim Berners-Lee, Vint Cerf, Bruce Schneier, Jimmy Wales and Mitch Kapor, who in an open letter last month argued that Article 13 “takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users”.

This week several European language versions of Wikipedia also blacked out encyclopedia content in a ‘going dark’ protest against the proposals, though the European Commission has claimed online encyclopedias would not be impacted by Article 13.

A claim that is, however, disputed by opponents…

An online petition calling for MEPs to vote for the parliament to be able to amend the proposals had gathered more than 850,000 signatures at the time of the vote.

Right ahead of the vote, MEPs heard brief statements in favor and against fast tracking the proposal.

Speaking in favor, MEP Axel Voss — rapporteur on the legal affairs committee which voted in favor of the text last month — said the proposals are intended to end “the exploitation of European artists on the Internet”.

“We’re talking about the major US platforms like Google and Facebook that have been making huge profits at the cost of European creatives. We need to prevent that,” he said. “And I think it is inexplicable how some people want to support this Internet capitalism, while others are calling for America first an abusing data and exploiting our creatives. We should be standing at the side of our European creators, and otherwise there is a risk of creative insolvency.”

“Why would we be against wanting to prevent copyright violations, why would we be against fair remuneration of creatives, and getting these large platforms to take more responsibility,” he added. “The campaign that we’re subject to, from Google, Facebook, that are meeting with children of MEPs — all of this is based on lies. There are no limits being put for individual users, every person can continue to set up links and carry out their uploads with legal certainty.”

Speaking against the proposal being fast-tracked — to allow for what she described as a “broad, fact-based debate” — was MEP Catherine Stihler, rapporteur on the internal market and consumer protection committee, which had joint competency on Article 13 of the proposal but whose position she said had not been taken into account in the text agreed by the (Juri) legal affairs committee, saying their text “does not achieve the needed balance”.

“We are all united in our shared mission to protect artists and cultural diversity in Europe… In our committee we were able to reach a broad compromise that makes meaningful progress on the value gap but at the same time safeguarding the rights of European Internet users, SMEs and startups,” said Stihler.

“There are real concerns about the effect of Article 13 on freedom of expression, raised by experts ranging from the UN special rapporteur David Kaye to the inventor of the world wide web, sir Tim Berners-Lee. And real concerns voiced by our citizens, just yesterday I received a petition signed by almost a million people against the Juri committee mandate. And although there is consensus — and I do believe there is consensus about the goals behind this law — huge controversy still exists about the methods proposed, something’s not right here. We owe it to the experts, stakeholders and citizens to give this directive the full debate necessary to achieve broad support.”

The outcome of today’s vote means copyright lobbyists on both sides of the fence face a busy summer — ahead of debate, the chance for amendments to the text and another vote, now set to take place in the EU parliament in September.

European Consumer Organisation, BEUC, welcomed today’s vote in the parliament.

In a statement, its DG, Monique Goyens, said: “This is a big decision in the fight to prevent large-scale and systematic filtering of online content from becoming the norm. The legislative debate urgently needs re-direction. The Internet must remain a place where consumers can freely share own creations, opinions and ideas. MEPs have a chance to correct a heavily unbalanced report and make copyright work for both consumer and creators.”

Not so happy: The Society of Authors, Composers and Publishers of Music (Sacem), whose secretary general, David El Sayegh, described it as “a set-back but it is not the end”.

“Sacem remains dedicated to ensuring that creators are recognised and remunerated for the value of their work,” he added in a statement. “We will not be discouraged by today’s decision and will continue to mobilise the support of musicians and music lovers across the world, in the hopes of reaching a fair agreement with these platforms that will safeguard the future of the music industry.

“We are confident that the European Parliament will eventually support a framework that fully acknowledges the rights of creators in the digital landscape of the 21st century.”