The New York Times sues the FCC to investigate Russian interference in Net Neutrality decision

The ongoing saga over the FCC’s handling of public comments to its net neutrality proposal continues after The New York Times sued the organization for withholding of information that it believes could prove there was Russian interference.

The Times has filed multiple Freedom of Information Act requests for data on the comments since July 2017, and now, after reducing the scope of its requests significantly was rejected, it is taking the FCC to court in a bid to get the information.

The FCC’s comment system keeled over in May 2017 over during the public feedback period as more than 22 million comments were posted. Plenty of those were suspected of using repeated phrases, fake email addresses and even the names of deceased New Yorkers. The FCC initially falsely claimed the outage was because it was hacked — it wasn’t and it has only just made that clear — it seems instead that its system was unable to handle the volume of comments, with a John Oliver sketch thought to have accounted for a surge in interest.

The New York Times, meanwhile, has been looking into whether Russia was involved. An op-ed in the Washington Post from FCC member Jessica Rosenworcel published earlier this year suggested that as many as 500,000 comments came from Russian email addresses, with an estimated eight million comments sent by throw-away email accounts created via FakeMailGenerator.com. In addition, a report found links between emails mentioned in the Mueller Report and those used to provide comment on net neutrality.

Since the actual events are unclear — for more than a year the FCC allowed people to incorrectly believe it was hacked — an FOIA request could provide a clearer insight into whether there was overseas interference.

Problem: the FCC itself won’t budge, as the suit (which you can find here) explains:

The request at issue in this litigation involves records that will shed light on the extent to which Russian nationals and agents of the Russian government have interfered with the agency notice-and-comment process about a topic of extensive public interest: the government’s decision to abandon “net neutrality.” Release of these records will help broaden the public’s understanding of the scope of Russian interference in the American democratic system.

Despite the clear public importance of the requested records, the FCC has thrown up a series of roadblocks, preventing The Times from obtaining the documents.

Repeatedly, The Times has narrowed its request in the hopes of expediting release of the records so it could explore whether the FCC and the American public had been the victim of orchestrated campaign by the Russians to corrupt the notice-and-comment process and undermine an important step in the democratic process of rule-making.

The original FOIA request lodged in June 2017 from the Times requested “IP addresses, timestamps, and comments, among other data” which included web server data. The FCC initially bulked and declined on the basis that doing so would compromise its IT systems and security (that sounds familiar!), while it also cited privacy concerns for the commenters.

Over the proceeding months, which included dialogue between both parties, the Times pared back the scope of its request considerably. By 31 August 2018, it was only seeking a list of originating IP addresses and timestamps for comments, and a list of user-agent headers (which show a user’s browser type and other diagnostic details) and timestamps. The requested lists were separated to address security concerns.

However, the FCC declined again, and now the Times believes it has “exhausted all administrative remedies.”

“The FCC has no lawful basis for declining to release the records requested,” it added.

Not so, according to the FCC, which released a statement to Ars Technica.

“We are disappointed that The New York Times has filed suit to collect the Commission’s internal Web server logs, logs whose disclosure would put at jeopardy the Commission’s IT security practices for its Electronic Comment Filing System,” a spokesperson said.

The organization cited a District of Columbia case earlier this month which it claimed found that “the FCC need not turn over these same web server logs under the Freedom of Information Act.”

But that is a simplistic read on the case. While the judge did rule against turning over server logs, he ordered the FCC to provide email addresses for those that had provided comment via its .CSV file template, and the files themselves. That’s a decent precedent for the New York Times, which has a far narrow scope with its request.

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Wikimedia warns EU copyright reform threatens the ‘vibrant free web’

The Wikimedia Foundation has sounded a stark warning against a copyright reform proposal in Europe that’s due to be voted on by the European Parliament next week. (With the mild irony that it’s done so with a blog post on the commercial Medium platform.)

In the post, also emailed to TechCrunch, María Sefidari Huici, chair of the Wikimedia Foundation, writes: “Next week, the European Parliament will decide how information online is shared in a vote that will significantly affect how we interact in our increasingly connected, digital world. We are in the last few moments of what could be our last opportunity to define what the Internet looks like in the future.

“The next wave of proposed rules under consideration by the European Parliament will either permit more innovation and growth, or stifle the vibrant free web that has allowed creativity, innovation, and collaboration to thrive. This is significant because copyright does not only affect books and music, it profoundly shapes how people communicate and create on the internet for years to come.”

Backers of the reform proposals argue they will help European creatives be fairly recompensed for their work. But critics argue the proposals are not balanced and will chill the creative freedoms of web users to share and comment on content online.

The two articles attracting the most controversy in the reforms are:

  • Article 11; which proposes a neighboring copyright for snippets of journalistic content — requiring news aggregators such as Google News to gain a license from the publisher to use this type of content (branded a ‘link tax’ by critics);
  • Article 13; which seeks to shift liability for platform users’ copyright infringements onto the platforms themselves — and which critics contend will therefore push them towards creating upload filters to monitor all content before it’s posted, having a chilling effect on Internet expression. Critics sometimes dub this component ‘censorship machines’.

In July MEPs issued a smackdown to the Commission by refusing to back the reforms — and voting to reopen debate. Another vote is due next week, with amendments in the process of being tabled now, hence Wikimedia’s intervention.

In her blog post, Sefidari Huici urges MEPs to remember the original objective for the update: “To make copyright rules that work for better access to a quickly-evolving, diverse, and open internet.”

“The very context in which copyright operates has changed completely. Consider Wikipedia, a platform which like much of the internet today, is made possible by people who act as consumers and creators. People read Wikipedia, but they also write and edit articles, take photos for Wikimedia Commons, or contribute to other Wikimedia free knowledge projects. Content on Wikipedia is available under a free license for anyone to use, copy, or remix,” she writes.

“Every month, hundreds of thousands of volunteers make decisions about what content to include on Wikipedia, what constitutes a copyright violation, and when those decisions need to be revised. We like it this way — it allows people, not algorithms, to make decisions about what knowledge should be presented back to the rest of the world.”

She also warns that changes to EU copyright could have serious implications for Wikipedia and other collaborative non-profit websites, urging MEPs to “institute policies that promote the free exchange of information online for everyone”.

“We urge EU representatives to support reform that adds critical protections for public domain works of art, history, and culture, and to limit new exclusive rights to existing works that are already free of copyright,” she writes.

On Article 13 specifically she warns this would push platforms towards creating “costly, often biased systems to automatically review and filter out potential copyright violations on their sites”, warning: “We already know that these systems are historically faulty and often lead to false positives. For example, consider the experience of a German professor who repeatedly received copyright violation notices when using public domain music from Beethoven, Bartók, and Schubert in videos on YouTube.”

“The internet has already created alternative ways to manage these issues,” she adds. “For instance, Wikipedia contributors already work hard to catch and remove infringing content if it does appear. This system, which is largely driven by human efforts, is very effective at preventing copyright infringement.”

She also argues that the copyright reform debate has been dominated by market relationships between large rights holders and for-profit internet platforms — saying this too narrow slice “does not reflect the breadth of websites and users on the internet today”.

“Wikipedians are motivated by a passion for information and a sense of community. We are entirely nonprofit, independent, and volunteer-driven. We urge MEPs to consider the needs of this silent majority online when designing copyright policies that work for the entire internet,” she adds, calling for MEPs to create a copyright framework that reflects “the evolution of how people use the internet today”.

“We must remember the original problem policymakers set out to solve: to bring copyright rules in line with a dramatically larger, more complex digital world and to remove cross-border barriers. We should remain true to the original vision for the internet — to remain an open, accessible space for all.”

Asked for a response to Wikimedia’s criticisms, a spokeswoman for the European Commission pointed us to an FAQ where it discusses what will happen to online encyclopaedias based on content uploaded by users — and claims these sites will not fall under the scope of the reform (because “the vast majority of the content on Wikipedia is uploaded with the consent of their rights holders” — something critics of the reform dispute).

She also sent us a general comment from Commission spokesperson, Nathalie Vandystadt, in which she states:

The new copyright rules are necessary in order to allow creators and the press to get a better deal when their works are made available online. At the same time, our proposal safeguards free speech and ensures that online platforms – including 7,000 European online platforms – can develop new and innovative offers and business models. It will not ban memes or hyperlinks, as has often been claimed in the public debate.

The Commission presented its balanced proposal two years ago, in September 2016. We have discussed the proposal with all relevant actors. We now expect the European Parliament to reach a position and stand ready to start negotiations on this important reform with the Parliament and the Council of the EU as soon as possible. The process has been long enough. Any further delay at this stage would put at risk adoption before the next European elections.

It’s not the first time Wikimedia has made a high profile intervention in the reform debate; Wikipedia founder Jimmy Wales added his name to an open letter in June warning that it “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”.

While, in July, several local language versions of the Wikipedia encyclopaedia voted to temporarily black out their content to protest the copyright proposals.

It remains to be seen whether MEPs will be swayed by all this public pressure — not least given all the counterlobbying they are getting behind the scenes.

Commenting on the state of play for the copyright reform ahead of the vote later this month, Marietje Schaake, a Dutch Member of the European Parliament, told us it’s too close to call right now.

“Right now it is impossible to say how the copyright vote will play out next week. I have been working hard on a sensible compromise that respects our fundamental rights, but we don’t know until tomorrow which amendments will be voted on,” she told TechCrunch. “MEPs and political groups are still making up their minds, and the margins are very tight. The votes could swing either way.”

Schaake said it’s likely more clarity will emerge tomorrow, once it’s clear who has tabled what (in terms of amendments) that will then get voted on by the whole parliament next week.

On the controversial article 13 portion of the reform, which would make platforms directly liable for copyright infringements by users, options likely to be on the table include some previous texts (such as the text produced the Commission, or the original Legal Affairs Committee (Juri) text), which are therefore unlikely to gain a majority.

An amendment suggesting full deletion of the article is also likely to be tabled — but also probably wouldn’t get majority backing given the level of backing the reform has behind it.

There may also be a version of the text produced by the Internal Market and Consumer Protection committee, which had joint competency on Article 13 of the proposal with the Juri committee but at the vote in July argued that its position had not been taken into account by the Juri text (which it criticized as not achieving “the needed balance”.

On top of that additional new compromise versions — which “aim to remove the worst parts of Article 13”, as Schaake puts it — are also likely to be tabled. But with votes predicted to be tight it’s hard to say which way MEPs will jump.

In July, the parliament voted by 318 votes to 278, with 31 abstentions, to reject the negotiating mandate that had been proposed by the Juri committee the month before.

As a result, the parliament’s position was reopened for debate, amendment and a vote — which will be held during an afternoon plenary session on September 12.

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California may mandate a woman in the boardroom, but businesses are fighting it

California is moving toward becoming the first state to require companies to have women on their boards –assuming the idea could survive a likely court challenge.

Sparked by debates around fair pay, sexual harassment and workplace culture, two female state senators are spearheading a bill to promote greater gender representation in corporate decision-making. Of the 445 publicly traded companies in California, a quarter of them lack a single woman in their boardrooms.

SB 826, which won Senate approval with only Democratic votes and has until the end of August to clear the Assembly, would require publicly held companies headquartered in California to have at least one woman on their boards of directors by end of next year. By 2021, companies with boards of five directors must have at least two women, and companies with six-member boards must have at least three women. Firms failing to comply would face a fine.

“Gender diversity brings a variety of perspectives to the table that can help foster new and innovative ideas,” said Democratic Sen. Hannah-Beth Jackson of Santa Barbara, who is sponsoring the bill with Senate President Pro Tem Toni Atkins of San Diego.”It’s not only the right thing to do, it’s good for a company’s bottom line.”

Yet critics of the bill say it violates the federal and state constitutions. Business associations say the rule would require companies to discriminate against men wanting to serve on boards, as well as conflict with corporate law that says the internal affairs of a corporation should be governed by the state law in which it is incorporated. This bill would apply to companies headquartered in California.

Jennifer Barrera, senior vice president of policy at the California Chamber of Commerce, argued against the bill and said it only focuses “on one aspect of diversity” by singling out gender.

“This bill basically mandates that we hire the woman above anybody else who we may be fulfilling for purposes of diversity,” she said at a hearing.

Similarly, a legislative analysis of the bill cautioned that it could get challenged on equal protection grounds, and that it would be difficult to defend, requiring the state to prove a compelling government interest in such a quota system for a private corporation.

Five years ago, California was the first state to pass a resolution, authored by Jackson, calling on public companies to increase gender diversity. In response, about 20 percent of the companies headquartered in the state followed through with putting women on their boards, according to the research firm Board Governance Research. But the resolution was non-binding and expired in December 2016.

Other countries have been more proactive. Norway in 2007 was the first country to pass a law requiring 40 percent of corporate board seats be held by women, and Germany set a 30 percent requirement in 2015. Spain, France and Italy have also set quotas for public firms.

In California, smaller companies have fewer female directors. Out of 50 companies with the lowest revenues, 48 percent have no female directors, according to Board Governance Research. Only 8 percent of their board seats are held by women.

The 2017 study said larger companies did a better job of appointing women, with all 50 of the highest-revenue companies having at least one female director and 23 percent of board seats held by women.

“The main issue is still that a lot of companies headquartered here don’t have women on their boards,” said Annalisa Barrett, clinical professor of finance at the University of San Diego’s School of Business. “We quite often like to think of California as progressive and a leader on social issues, so that’s kind of disappointing.”

Barrett publishes an annual report of women on boards in California. Public companies are major employers in the state, and their financial performance has a big impact on public pension funds, mutual funds and investment portfolios. “Financial performance does really impact the broader community,” she said.

The National Association of Women Business Owners, sponsor of the bill, says an economy as big as California’s ought to “set an example globally for enlightened business practice.” In a letter of support, the association cites studies that suggest corporations with female directors perform better than those with no women on their boards.

One University of California, Davis study did find that companies with more women serving on their boards saw a higher return on assets and equity, but the author acknowledges this may not suggest a cause-and-effect.

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