Tuesday, February 02, 2021

An Investigative Reporter Returns To His Native India To Penetrate The Gigantic Phone-Scam Industry That Swindles Victims Around The World Of Billions With A Telephone And A Computer

From the US, Yudhijit Bhattacharjee returns to his native India to reveal a huge criminal enterprise that robs international victims of vast amounts of money without a gun — all it takes are a phone and a computer in an interconnected world. Operating out of large, even huge, call centers in India, mostly male swindlers make calls to unsuspecting victims who surrender access to their bank accounts in countless acts of cyber-robbery. And their make their escapes by simply ending a phone call with a click. If this is a (fair & balanced) exposure of a cowardly new world, so be it.

[x NY Fishwrap 'Zine]
Tracing The Call: Who's Making All Those Scam Calls?
By Yudhijit Bhattacharjee

TagCrowd Cloud provides a visual summary of the blog post below

created at TagCrowd.com

One afternoon in December 2019, Kathleen Langer, an elderly grandmother who lives by herself in Crossville, TN, got a phone call from a person who said he worked in the refund department of her computer manufacturer. The reason for the call, he explained, was to process a refund the company owed Langer for antivirus and anti-hacking protection that had been sold to her and was now being discontinued. Langer, who has a warm and kind voice, couldn’t remember purchasing the plan in question, but at her age, she didn’t quite trust her memory. She had no reason to doubt the caller, who spoke with an Indian accent and said his name was Roger.

He asked her to turn on her computer and led her through a series of steps so that he could access it remotely. When Langer asked why this was necessary, he said he needed to remove his company’s software from her machine. Because the protection was being terminated, he told her, leaving the software on the computer would cause it to crash.

After he gained access to her desktop, using the program TeamViewer, the caller asked Langer to log into her bank to accept the refund, $399, which he was going to transfer into her account. “Because of a technical issue with our system, we won’t be able to refund your money on your credit card or mail you a check,” he said. Langer made a couple of unsuccessful attempts to log in. She didn’t do online banking too often and couldn’t remember her user name.

Frustrated, the caller opened her bank’s internet banking registration form on her computer screen, created a new user name and password for her and asked her to fill out the required details — including her address, Social Security number and birth date. When she typed this last part in, the caller noticed she had turned 80 just weeks earlier and wished her a belated happy birthday. “Thank you!” she replied.

After submitting the form, he tried to log into Langer’s account but failed, because Langer’s bank — like most banks — activates a newly created user ID only after verifying it by speaking to the customer who has requested it. The caller asked Langer if she could go to her bank to resolve the issue. “How far is the bank from your house?” he asked.

A few blocks away, Langer answered. Because it was late afternoon, however, she wasn’t sure if it would be open when she got there. The caller noted that the bank didn’t close until 4:30, which meant she still had 45 minutes. “He was very insistent,” Langer told me recently. On her computer screen, the caller typed out what he wanted her to say at the bank. “Don’t tell them anything about the refund,” he said. She was to say that she needed to log in to check her statements and pay bills.

Langer couldn’t recall, when we spoke, if she drove to the bank or not. But later that afternoon, she rang the number the caller had given her and told him she had been unable to get to the bank in time. He advised her to go back the next morning. By now, Langer was beginning to have doubts about the caller. She told him she wouldn’t answer the phone if he contacted her again.

“Do you care about your computer?” he asked. He then uploaded a program onto her computer called Lock My PC and locked its screen with a password she couldn’t see. When she complained, he got belligerent. “You can call the police, the FBI, the CIA,” he told her. “If you want to use your computer as you were doing, you need to go ahead as I was telling you or else you will lose your computer and your money.” When he finally hung up, after reiterating that he would call the following day, Langer felt shaken.

Minutes later, her phone rang again. This caller introduced himself as Jim Browning. “The guy who is trying to convince you to sign into your online banking is after one thing alone, and that is he wants to steal your money,” he said.

Langer was mystified that this new caller, who had what seemed to be a strong Irish accent, knew about the conversations she had just had. “Are you sure you are not with this group?” she asked.

He replied that the same scammers had targeted him, too. But when they were trying to connect remotely to his computer, as they had done with hers, he had managed to secure access to theirs. For weeks, that remote connection had allowed him to eavesdrop on and record calls like those with Langer, in addition to capturing a visual record of the activity on a scammer’s computer screen.

“I’m going to give you the password to unlock your PC because they use the same password every time,” he said. “If you type 4-5-2-1, you’ll unlock it.”

Langer keyed in the digits.

“OK! It came back on!” she said, relieved.

For most people, calls like the one Langer received are a source of annoyance or anxiety. According to theFBI’s Internet Crime Complaint Center, the total losses reported to it by scam victims increased to $3.5 billion in 2019 [PDF] from $1.4 billion in 2017. Last year, the app Truecaller commissioned the Harris Poll to survey roughly 2,000 American adults and found that 22 percent of the respondents said they had lost money to a phone scam in the past 12 months; Truecaller projects that as many as 56 million Americans may have been victimized this way, losing nearly $20 billion.

The person who rescued Langer that afternoon delights in getting these calls, however. “I’m fascinated by scams,” he told me. “I like to know how they work.” A software engineer based in the United Kingdom, he runs a YouTube channel under the pseudonym Jim Browning, where he regularly posts videos about his fraud-fighting efforts, identifying call centers and those involved in the crimes. He began talking to me over Skype in the fall of 2019 — and then sharing recordings like the episode with Langer — on the condition that I not reveal his identity, which he said was necessary to protect himself against the ire of the bad guys and to continue what he characterizes as his activism. Maintaining anonymity, it turns out, is key to scam-busting and scamming alike. I’ll refer to him by his middle initial, L.

The goal of L.’s efforts and those of others like him is to raise the costs and risks for perpetrators, who hide behind the veil of anonymity afforded by the internet and typically do not face punishment. The work is a hobby for L. — he has a job at an IT company — although it seems more like an obsession. Tracking scammers has consumed much of L.’s free time in the evenings over the past few years, he says, except for several weeks in March and April last year, when the start of the Coronavirus Pandemic forced strict lockdowns in many parts of the world, causing call centers from which much of this activity emanates to temporarily suspend operations. Ten months later, scamming has “gone right back to the way it was before the Pandemic,” L. told me earlier this month.

Like L., I was curious to learn more about phone scammers, having received dozens of their calls over the years. They have offered me low interest rates on my credit-card balances, promised to write off my federal student loans and congratulated me on having just won a big lottery. I’ve answered fraudsters claiming to be from the Internal Revenue Service who threaten to send the police to my doorstep unless I agree to pay back taxes that I didn’t know I owed — preferably in the form of iTunes gift cards or by way of a Western Union money transfer. Barring a few exceptions, the individuals calling me have had South Asian accents, leading me to suspect that they are calling from India. On several occasions, I’ve tested this theory by letting the voice on the other end go on for a few minutes before I suddenly interrupt with a torrent of Hindi curses that I retain full mastery of even after living in the United States for the past two decades. I haven’t yet failed to elicit a retaliatory offensive in Hindi. Confirming that these scammers are operating from India hasn’t given me any joy. Instead, as an Indian expatriate living in the United States, I’ve felt a certain shame.

L. started going after scammers when a relative of his lost money to a tech-support swindle, a common scheme with many variants. Often, it starts when the mark gets a call from someone offering unsolicited help in ridding a computer’s hard drive of malware or the like. Other times, computer users looking for help stumble upon a website masquerading as Microsoft or Dell or some other computer maker and end up dialing a listed number that connects them to a fraudulent call center. In other instances, victims are tricked by a pop-up warning that their computer is at risk and that they need to call the number flashing on the screen. Once someone is on the phone, the scammers talk the caller into opening up TeamViewer or another remote-access application on his or her computer, after which they get the victim to read back unique identifying information that allows them to establish control over the computer.

L. flips the script. He starts by playing an unsuspecting target. Speaking in a polite and even tone, with a cadence that conveys naïveté, he follows instructions and allows the scammer to connect to his device. This doesn’t have any of his actual data, however. It is a “virtual machine,” or a program that simulates a functioning desktop on his computer, including false files, like documents with a fake home address. It looks like a real computer that belongs to someone. “I’ve got a whole lot of identities set up,” L. told me. He uses dummy credit-card numbers that can pass a cursory validation check.

The scammer’s connection to L.’s virtual machine is effectively a two-way street that allows L. to connect to the scammer’s computer and infect it with his own software. Once he has done this, he can monitor the scammer’s activities long after the call has ended; sometimes for months, or as long as the software goes undetected. Thus, sitting in his home office, L. is able to listen in on calls between scammer and targets — because these calls are made over the internet, from the scammer’s computer — and watch as the scammer takes control of a victim’s computer. L. acknowledged to me that his access to the scammer’s computer puts him at legal risk; without the scammer’s permission, establishing that access is unlawful. But that doesn’t worry him. “If it came down to someone wanting to prosecute me for accessing a scammer’s computer illegally, I can demonstrate in every single case that the only reason I gained access is because the scammer was trying to steal money from me,” he says.

On occasion, L. succeeds in turning on the scammer’s webcam and is able to record video of the scammer and others at the call center, who can usually be heard on phones in the background. From the IP address of the scammer’s computer and other clues, L. frequently manages to identify the neighborhood — and, in some cases, the actual building — where the call center is.

When he encounters a scam in progress while monitoring a scammer’s computer, L. tries to both document and disrupt it, at times using his real-time access to undo the scammer’s manipulations of the victim’s computer. He tries to contact victims to warn them before they lose any money — as he did in the case of Kathleen Langer.

L.’s videos of such episodes have garnered millions of views, making him a faceless YouTube star. He says he hopes his exploits will educate the public and deter scammers. He claims he has emailed the law-enforcement authorities in India offering to share the evidence he has collected against specific call centers. Except for one instance, his inquiries have elicited only form responses, although last year, the police raided a call center that L. had identified in Gurugram, outside Delhi, after it was featured in an investigation aired by the BBC.

Now and then during our Skype conversations, L. would begin monitoring a call between a scammer and a mark and let me listen in. In some instances, I would also hear other call-center employees in the background — some of them making similar calls, others talking among themselves. The chatter evoked a busy workplace, reminding me of my late nights in a Kolkata newsroom, where I began my journalism career 25 years ago, except that these were young men and women working through the night to con people many time zones away. When scammers called me in the past, I tried cajoling them into telling me about their enterprise but never succeeded. Now, with L.’s help, I thought, I might have better luck.

I flew to India at the end of 2019 hoping to visit some of the call centers that L. had identified as homes for scams. Although he had detected many tech-support scams originating from Delhi, Hyderabad and other Indian cities, L. was convinced that Kolkata — based on the volume of activity he was noticing there — had emerged as a capital of such frauds. I knew the city well, having covered the crime beat there for an English-language daily in the mid-1990s, and so I figured that my chances of tracking down scammers would be better there than most other places in India.

I took with me, in my notebook, a couple of addresses that L. identified in the days just before my trip as possible origins for some scam calls. Because the geolocation of IP addresses — ascertaining the geographical coordinates associated with an internet connection — isn’t an exact science, I wasn’t certain that they would yield any scammers.

But I did have the identity of a person linked to one of these spots, a young man whose first name is Shahbaz. L. identified him by matching webcam images and several government-issued IDs found on his computer. The home address on his ID matched what L. determined, from the I.P. address, to be the site of the call center where he operated, which suggested that the call center was located where he lived or close by. That made me optimistic I would find him there. In a recording of a call Shahbaz made in November, weeks before my Kolkata visit, I heard him trying to hustle a woman in Ottawa and successfully intimidating and then fleecing an elderly man in the United States.

Although individuals like this particular scammer are the ones responsible for manipulating victims on the phone, they represent only the outward face of a multibillion-dollar criminal industry. “Call centers that run scams employ all sorts of subcontractors,” Puneet Singh, an FBI agent who serves as the bureau’s legal attaché at the US Embassy in New Delhi, told me. These include sellers of phone numbers; programmers who develop malware and pop-ups; and money mules. From the constantly evolving nature of scams — lately I’ve been receiving calls from the “law-enforcement department of the Federal Reserve System” about an outstanding arrest warrant instead of the fake Social Security Administration calls I was getting a year ago — it’s evident that the industry has its share of innovators.

The reasons this activity seems to have flourished in India are much the same as those behind the growth of the country’s legitimate information-technology-services industry after the early 2000s, when many American companies like Microsoft and Dell began outsourcing customer support to workers in India. The industry expanded rapidly as more companies in developed countries saw the same economic advantage in relocating various services there that could be performed remotely — from airline ticketing to banking. India’s large population of English speakers kept labor costs down.

Because the overwhelming majority of call centers in the country are engaged in legitimate business, the ones that aren’t can hide in plain sight. Amid the mazes of gleaming steel-and-glass high-rises in a place like Cyber City, near Delhi, or Sector V in Salt Lake, near Kolkata — two of the numerous commercial districts that have sprung up across the country to nurture IT businesses — it’s impossible to distinguish a call center that handles inquiries from air travelers in the United States from one that targets hundreds of Americans every day with fraudulent offers to lower their credit-card interest rates.

The police do periodically crack down on operations that appear to be illegitimate. Shortly after I got to Kolkata, the police raided five call centers in Salt Lake that officials said had been running a tech-support scam. The employees of the call centers were accused of impersonating Microsoft representatives. The police raid followed a complaint by the tech company, which in recent years has increasingly pressed Indian law enforcement to act against scammers abusing the company’s name. I learned from Murlidhar Sharma, a senior official in the city police, that his team had raided two other call centers in Kolkata a couple of months earlier in response to a similar complaint.

“Microsoft had done extensive work before coming to us,” Sharma, who is in his 40s and speaks with quiet authority, told me. The company lent its help to the police in connection with the raids, which Sharma seemed particularly grateful for. Often the police lack the resources to pursue these sorts of cases. “These people are very smart, and they know how to hide data,” Sharma said, referring to the scammers. It was in large part because of Microsoft’s help, he said, that investigators had been able to file charges in court within a month after the raid. A trial has begun but could drag on for years. The call centers have been shut down, at least for now.

Sharma pointed out that pre-emptive raids do not yield the desired results. “Our problem,” he said, “is that we can act only when there’s a complaint of cheating.” In 2017, he and his colleagues raided a call center on their own initiative, without a complaint, and arrested several people. “But then the court was like, ‘Why did the police raid these places?’” Sharma said. The judge wanted statements from victims, which the police were unable to get, despite contacting authorities in the US and UK. The case fell apart.

The slim chances of detection, and the even slimmer chances of facing prosecution, have seemed to make scamming a career option, especially among those who lack the qualifications to find legitimate employment in India’s slowing economy. Indian educational institutions churn out more than 1.5 million engineers every year, but according to one survey fewer than 20 percent are equipped to land positions related to their training, leaving a vast pool of college graduates — not to mention an even larger population of less-educated young men and women — struggling to earn a living. That would partly explain why call centers run by small groups are popping up in residential neighborhoods. “The worst thing about this crime is that it’s becoming trendy,” Aparajita Rai, a deputy commissioner in the Kolkata Police, told me. “More and more youngsters are investing the crucial years of their adolescence into this. Everybody wants fast money.”

In Kolkata, I met Aniruddha Nath, then 23, who said he spent a week working at a call center that he quickly realized was engaged in fraud. Nath has a pensive air and a shy smile that intermittently cut through his solemnness as he spoke. While finishing his undergraduate degree in engineering from a local college — he took a loan to study there — Nath got a job offer after a campus interview. The company insisted he join immediately, for a monthly salary of about $200. Nath asked me not to name the company out of fear that he would be exposing himself legally.

His jubilation turned into skepticism on his very first day, when he and other fresh recruits were told to simply memorize the contents of the company’s website, which claimed his employer was based in Australia. On a whim, he Googled the address of the Australian office listed on the site and discovered that only a parking garage was located there. He said he learned a couple of days later what he was to do: Call Indian students in Australia whose visas were about to expire and offer to place them in a job in Australia if they paid $800 to take a training course.

On his seventh day at work, Nath said, he received evidence from a student in Australia that the company’s promise to help with job placements was simply a ruse to steal $800; the training the company offered was apparently little more than a farce. “She sent me screenshots of complaints from individuals who had been defrauded,” Nath said. He stopped going in to work the next day. His parents were unhappy, and, he said, told him: “What does it matter to you what the company is doing? You’ll be getting your salary.” Nath answered, “If there’s a raid there, I’ll be charged with fraud.”

Late in the afternoon the day after I met with Nath, I drove to Garden Reach, a predominantly Muslim and largely poor section in southwest Kolkata on the banks of the Hooghly River. Home to a 137-year-old shipyard, the area includes some of the city’s noted crime hot spots and has a reputation for crime and violence. Based on my experience reporting from Garden Reach in the 1990s, I thought it was probably not wise to venture there alone late at night, even though that was most likely the best time to find scammers at work. I was looking for Shahbaz.

Parking my car in the vicinity of the address L. had given me, I walked through a narrow lane where children were playing cricket, past a pharmacy and a tiny store selling cookies and snacks. The apartment I sought was on the second floor of a building at the end of an alley, a few hundred yards from a mosque. It was locked, but a woman next door said that the building belonged to Shahbaz’s extended family and that he lived in one of the apartments with his parents.

Then I saw an elderly couple seated on the steps in the front — his parents, it turned out. The father summoned Shahbaz’s brother, a lanky, longhaired man who appeared to be in his 20s. He said Shahbaz had woken up a short while earlier and gone out on his motorbike. “I don’t know when he goes to sleep and when he wakes up,” his father said, with what sounded like exasperation.

They gave me Shahbaz’s mobile number, but when I called, I got no answer. It was getting awkward for me to wait around indefinitely without disclosing why I was there, so eventually I pulled the brother aside to talk in private. We sat down on a bench at a roadside tea stall, a quarter mile from the mosque. Between sips of tea, I told him that I was a journalist in the United States and wanted to meet his brother because I had learned he was a scammer. I hoped he would pass on my message.They gave me Shahbaz’s mobile number, but when I called, I got no answer. It was getting awkward for me to wait around indefinitely without disclosing why I was there, so eventually I pulled the brother aside to talk in private. We sat down on a bench at a roadside tea stall, a quarter mile from the mosque. Between sips of tea, I told him that I was a journalist in the United States and wanted to meet his brother because I had learned he was a scammer. I hoped he would pass on my message.

I got a call from Shahbaz a few hours later. He denied that he’d ever worked at a call center. “There are a lot of young guys who are involved in the scamming business, but I’m not one of them,” he said. I persisted, but he kept brushing me off until I asked him to confirm that his birthday was a few days later in December. “Look, you are telling me my exact birth date — that makes me nervous,” he said. He wanted to know what I knew about him and how I knew it. I said I would tell him if he met with me. I volunteered to protect his identity if he answered my questions truthfully.

Two days later, we met for lunch at the Taj Bengal, one of Kolkata’s five-star hotels. I’d chosen that as the venue out of concern for my safety. When he showed up in the hotel lobby, however, I felt a little silly. Physically, Shahbaz is hardly intimidating. He is short and skinny, with a face that would seem babyish but for his thin mustache and beard, which are still a work in progress. He was in his late 20s but had brought along an older cousin for his own safety.

We found a secluded table in the hotel’s Chinese restaurant and sat down. I took out my phone and played a video that L. had posted on YouTube. (Only those that L. shared the link with knew of its existence.) The video was a recording of the call from November 2019 in which Shahbaz was trying to defraud the woman in Ottawa with a trick that scammers often use to arm-twist their victims: editing the HTML coding of the victim’s bank-account webpage to alter the balances. Because the woman was pushing back, Shahbaz zeroed out her balance to make it look as if he had the ability to drain her account. On the call, he can be heard threatening her: “You don’t want to lose all your money, right?”

I watched him shift uncomfortably in his chair. “Whose voice is that?” I asked. “It’s yours, isn’t it?”

He nodded in shocked silence. I took my phone back and suggested he drink some water. He took a few sips, gathering himself before I began questioning him. When he mumbled in response to my first couple of questions, I jokingly asked him to summon the bold, confident voice we’d just heard in the recording of his call. He gave me a wan smile.

Pointing to my voice recorder on the table, he asked, meekly, “Is this necessary?”

When his scam calls were already on YouTube, I countered, how did it matter that I was recording our conversation?

“It just makes me nervous,” he said.

Shahbaz told me his parents sent him to one of the city’s better schools but that he flunked out in eighth grade and had to move to a neighborhood school. When his father lost his job, Shahbaz found work riding around town on his bicycle to deliver medicines and other pharmaceutical supplies from a wholesaler to retail pharmacies; he earned $25 a month. Sometime around 2011 or 2012, he told me, a friend took him to a call center in Salt Lake, where he got his first job in scamming, though he didn’t realize right away that that was what he was doing. At first, he said, the job seemed like legitimate telemarketing for tech-support services. By 2015, working in his third job, at a call center in the heart of Kolkata, Shahbaz had learned how to coax victims into filling out a Western Union transfer in order to process a refund for terminated tech-support services. “They would expect a refund but instead get charged,” he told me.

Shahbaz earned a modest salary in these first few jobs — he told me that that first call center, in Salt Lake, paid him less than $100 a month. His lengthy commute every night was exhausting. In 2016 or 2017, he began working with a group of scammers in Garden Reach, earning a share of the profits. There were at least five others who worked with him, he said. All of them were local residents, some more experienced than others. One associate at the call center was his wife’s brother.

He was cagey about naming the others or describing the organization’s structure, but it was evident that he wasn’t in charge. He told me that a supervisor had taught him how to intimidate victims by editing their bank balances. “We started doing that about a year ago,” he said, adding that their group was somewhat behind the curve when it came to adopting the latest tricks of the trade. When those on the cutting edge of the business develop something new, he said, the idea gradually spreads to other scammers.

It was hard to ascertain how much this group was stealing from victims every day, but Shahbaz confessed that he was able to defraud one or two people every night, extracting anywhere from $200 to $300 per victim. He was paid about a quarter of the stolen amount. He told me that he and his associates would ask victims to drive to a store and buy gift cards, while staying on the phone for the entire duration. Sometimes, he said, all that effort was ruined if suspicious store clerks declined to sell gift cards to the victim. “It’s becoming tough these days, because customers aren’t as gullible as they used to be,” he told me. I could see from his point of view why scammers, like practitioners in any field, felt pressure to come up with new methods and scams in response to increasing public awareness of their schemes.

The more we spoke, the more I recognized that Shahbaz was a small figure in this gigantic criminal ecosystem that constitutes the phone-scam industry, the equivalent of a pickpocket on a Kolkata bus who is unlucky enough to get caught in the act. He had never thought of running his own call center, he told me, because that required knowing people who could provide leads — names and numbers of targets to call — as well as others who could help move stolen money through illicit channels. “I don’t have such contacts,” he said. There were many in Kolkata, according to Shahbaz, who ran operations significantly bigger than the one he was a part of. “I know of people who had nothing earlier but are now very rich,” he said. Shahbaz implied that his own ill-gotten earnings were paltry in comparison. He hadn’t bought a car or a house, but he admitted that he had been able to afford to go on overseas vacations with friends. On Facebook, I saw a photo of him posing in front of the Burj Khalifa in Dubai and other pictures from a visit to Thailand.

I asked if he ever felt guilty. He didn’t answer directly but said there had been times when he had let victims go after learning that they were struggling to pay bills or needed the money for medical expenses. But for most victims, his rationale seemed to be that they could afford to part with the few hundred dollars he was stealing.

Shahbaz was a reluctant interviewee, giving me brief, guarded answers that were less than candid or directly contradicted evidence that L. had collected. He was vague about the highest amount he’d ever stolen from a victim, at one point saying $800, then later admitting to $1,500. I found it hard to trust either figure, because on one of his November calls I heard him bullying someone to pay him $5,000. He told me that my visit to his house had left him shaken, causing him to realize how wrong he was to be defrauding people. His parents and his wife were worried about him. And so, he had quit scamming, he told me.

“What did you do last night?” I asked him.

“I went to sleep,” he said.

I knew he was not telling the truth about his claim to have stopped scamming, however. Two days earlier, hours after our phone conversation following my visit to Garden Reach, Shahbaz had been at it again. It was on that night, in fact, that he tried to swindle Kathleen Langer in Crossville, TN. Before I came to see him for lunch, I had already heard a recording of that call, which L. shared with me.

When I mentioned that to him, he looked at me pleadingly, in visible agony, as if I’d poked at a wound. It was clear to me that he was only going to admit to wrongdoing that I already had evidence of.

L. told me that the remote access he had to Shahbaz’s computer went cold after I met with him on Dec. 14, 2019. But it buzzed back to life about 10 weeks later. The IP address was the same as before, which suggested that it was operating in the same location I visited. L. set up a livestream on YouTube so I could see what L. was observing. The microphone was on, and L. and I could clearly hear people making scam calls in the background. The computer itself didn’t seem to be engaged in anything nefarious while we were eavesdropping on it, but L. could see that Shahbaz’s phone was connected to it. It appeared that Shahbaz had turned the computer on to download music. I couldn’t say for certain, but it seemed that he was taking a moment to chill in the middle of another long night at work. ###

[Yudhijit Bhattacharjee is a contributing writer at National Geographic and the author of The Dinner Set Gang (2020). He received a BTech (chemical engineering) from the Indian Institute of Technology (Bombay).]

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Monday, February 01, 2021

Today, Tom Tomorrow's "Invisible Hand Of The Free Market Man" Explains Last Week's GameStop Bubble-Burst Among Freelance US Stock-Market Investors

The financial news last week was rocked by an upheaval in stock purchases and sales of GameStop stock by both day traders and large financial institutions. The best analysis of this market event was provided by The Atlantic's Derek Thompson. And, of course, the email bearing today's TMW 'toon also contained the following explanatory message from Tom Tomorrow (Dan Perkins):

It feels like it has been a long time since I tackled a complicated topic not directly involving specific politicians. Hell, it feels like it’s been a long time since I tackled a topic that didn’t involve Donald Trump. Writing this one reminded me of trying to get a handle on the subprime mortgage stuff in the late 00s. I went through a *lot* of drafts, trying to figure out how to approach this. And I understand that my summary of the situation leaves out a lot of details — for instance, I didn’t have room to discuss the main trading app, Robinhood, which shut down the day traders’ ability to purchase more Gamestop shares when things started getting out of control, under pressure from its business power Citadel, which has a separate hedge fund which helped bail out Melvin Capital, the fund that took the biggest hit during the bubble. The house always wins, one way or another.

Also the Reddit forum, Wall Street Bets, is apparently full of 4chan style nazi shitposters, which was another reason I wanted to counter the narrative of plucky outsiders pulling a digital Occupy Wall Street.

This story had a lot of complicated details.

There were a couple notes I definitely wanted to hit. Melvin Capital shorted 140% of Gamestock shares. Even if you accept shorting as a rational facet of the market, shorting significantly more shares than exist seems like … a problem?

And despite the narrative of a David and Goliath battle between small investors and giant hedge funds, other giant Wall Street firms profited enormously. Black Rock is reported to have made (I would not use the term “earned”) somewhere between one and two billion on the rise in Gamestop prices. And a plucky outsider named Elon Musk did, in fact, egg the whole thing on, on his Twitter.

The Invisible Hand is usually a mindless cheerleader for the free market — no matter what’s happening, he always explains that it shows the wisdom of the market at work. In this case I decided to portray him as a little worn out and exasperated from the whole thing, with a touch of implied pandemic fatigue as well (hence the masks). God knows we’re all feeling it.

Next week, I expect I’ll be back to seditionist Republicans, the impeachment of Donald Trump, or something else along those lines. But even though this cartoon was a bit of a struggle to write (and whether or not it was ultimately a successful effort), it was nice to have the luxury of taking a week off from the usual focus. Trump always sucked all the oxygen out of the room, and made it almost impossible to write about anything else.

Until next week,

Dan/Tom

And if you're confused by last week's financial news, so be it.

[x TMW]
The Irritable Hand Of The Free Market
by Tom Tomorrow (Dan Perkins)

[Dan Perkins is an editorial cartoonist better known by the pen name "Tom Tomorrow." His weekly comic strip, "This Modern World," which comments on current events from a strong liberal perspective, appears regularly in approximately 150 papers across the US, as well as on Daily Kos. The strip debuted in 1990 in the SF Weekly. Perkins received the Robert F. Kennedy Award for Excellence in Journalism in both 1998 and 2002. When he is not working on projects related to his comic strip, Perkins writes a daily political blog, also entitled "This Modern World," which he began in December 2001. More recently, Dan Perkins, pen name Tom Tomorrow, was named the winner of the 2013 Herblock Prize for editorial cartooning. Even more recently, Dan Perkins was a runner-up for the 2015 Pulitzer Prize for Editorial Cartooning.]

Copyright © 2021 This Modern World

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Sunday, January 31, 2021

Risky Business: Predicting The Likelihood Of Success — Or Failure — At The Onset Of A Presidential Administration

In the waning days of the first month of the Biden Administration, the NY Times' Viper (Michelle Goldberg) surveys the beginnings of presidential administrations in US history with a positive conclusion. If this is (fair & balanced) comparison of US presidents at the beginning of their administrations, so be it.

PS: The source of this blog's noms de stylo serpent reference to the three women on the NY Fishwrap's Op-Ed staff began with this 2001 essay by The Cobra (Maureen Dowd) who's been joined by her distaff colleagues: The Krait (Gail Collins), and — most recently — The Viper (Michelle Goldberg).

[x NY Fishwrap]
The First Post-Reagan Presidency
By The Viper (Michelle Goldberg)

TagCrowd Cloud provides a visual summary of the blog post below

created at TagCrowd.com

During Donald Trump’s presidency, I sometimes took comfort in the Yale political scientist Stephen Skowronek’s concept of “political time.”

In Skowronek’s formulation, presidential history moves in 40- to 60-year cycles, or “regimes.” Each is inaugurated by transformative, “reconstructive” leaders [PDF] who define the boundaries of political possibility for their successors.

Franklin Delano Roosevelt was such a figure. For decades following his presidency, Republicans and Democrats alike accepted many of the basic assumptions of the New Deal. Ronald Reagan was another. After him, even Democrats like Bill Clinton and Barack Obama feared deficit spending, inflation and anything that smacked of “big government.”

I found Skowronek’s schema reassuring because of where Trump seemed to fit into it. Skowronek thought Trump was a “late regime affiliate” — a category that includes Jimmy Carter and Herbert Hoover. Such figures, he’s written, are outsiders from the party of a dominant but decrepit regime.

They use the “internal disarray and festering weakness of the establishment” to “seize the initiative.” Promising to save a faltering political order, they end up imploding and bringing the old regime down with them. No such leader, he wrote, has ever been re-elected.

During Trump’s reign, Skowronek’s ideas gained some popular currency, offering a way to make sense of a presidency that seemed anomalous and bizarre. “We are still in the middle of Trump’s rendition of the type,” he wrote in an updated edition of his book Presidential Leadership in Political Time (2011), “but we have seen this movie before, and it has always ended the same way.”

Skowronek doesn’t present his theory as a skeleton key to history. It’s a way of understanding historical dynamics, not predicting the future. Still, if Trump represented the last gasps of Reaganism instead of the birth of something new, then after him, Skowronek suggests, a fresh regime could begin.

When Joe Biden became the Democratic nominee, it seemed that the coming of a new era had been delayed. Reconstructive leaders, in Skowronek’s formulation, repudiate the doctrines of an establishment that no longer has answers for the existential challenges the country faces. Biden, Skowronek told me, is “a guy who’s made his way up through establishment Democratic politics.” Nothing about him seemed trailblazing.

Yet as Biden’s administration begins, there are signs that a new politics is coalescing. When, in his inauguration speech, Biden touted “unity,” he framed it as a national rejection of the dark forces unleashed by his discredited predecessor, not stale Gang of Eight bipartisanship. He takes power at a time when what was once conventional wisdom about deficits, inflation and the proper size of government has fallen apart. That means Biden, who has been in national office since before Reagan’s presidency, has the potential to be our first truly post-Reagan president.

“Biden has a huge opportunity to finally get our nation past the Reagan narrative that has still lingered,” said Representative Ro Khanna [R-CA], who was a national co-chair of Bernie Sanders’s presidential campaign. “And the opportunity is to show that government, by getting the shots in every person’s arm of the vaccines, and building infrastructure, and helping working families, is going to be a force for good.”

A number of the officials Biden has selected — like Rohit Chopra for the Consumer Financial Protection Bureau, Gary Gensler for the Securities and Exchange Commission and Bharat Ramamurti for the National Economic Council — would have fit easily into an Elizabeth Warren administration. Biden has signed executive orders increasing food stamp benefits, took steps to institute a $15-an-hour minimum wage for federal employees and contractors, and announced plans to replace the federal fleet with electric vehicles. His administration is working on a child tax credit that would send monthly payments to most American parents.

Skowronek told me he’s grown more hopeful about Biden just in the last few weeks: “The old Reagan formulas have lost their purchase, there is new urgency in the moment, and the president has an insurgent left at his back.”

This is the second Democratic administration in a row to inherit a country wrecked by its predecessor. But Biden’s plans to take on the Coronavirus Pandemic and the attendant economic disaster have been a departure from Obama’s approach to the 2008 financial crisis. The difference isn’t just in the scale of the emergencies, but in the politics guiding the administrations’ responses.

In A Promised Land (2020), the first volume of his presidential memoir, Obama described a meeting just before he took office, when the economic data looked increasingly bleak. After an aide proposed a trillion-dollar rescue package, Rahm Emanuel, Obama’s chief of staff, began “to sputter like a cartoon character spitting out a bad meal.” Emanuel, according to Obama, said the figure would be a nonstarter with many Democrats, never mind Republicans. In Obama’s telling, Biden, then vice president, nodded his head in agreement.

Now Emanuel, hated by progressives, has been frozen out of Biden’s administration, and the new president has come out of the gate with a $1.9 trillion proposal. In addition to $1,400 checks to most Americans and an increase in federal unemployment aid to $400 a week, it includes a national $15-an-hour minimum wage, something dismissed as utopian when Bernie Sanders ran on it in 2016.

What has changed is not just the politics but the economic consensus. Recently I spoke to Jared Bernstein, a member of Biden’s Council of Economic Advisers, on “The Argument,” the Times podcast I co-host. When Biden was vice president, Bernstein was his chief economic adviser, and he said the meetings he’s in now are very different from those he was in during the last economic crisis.

Back then, Bernstein said, there was a widespread fear that too much government borrowing would crowd out private borrowing, raising interest rates. That thinking, he said, has changed. As Biden told reporters this month, “Every major economist thinks we should be investing in deficit spending in order to generate economic growth.”

It’s not just that the Democratic Party has moved left — the old Reaganite consensus in the Republican Party has collapsed. There’s nothing new about Republicans ignoring deficits — deficits almost never matter to Republicans when they’re in power. What is new is the forthright rejection of laissez-faire economics among populist nationalists like Senator Josh Hawley of Missouri [R-MO], who joined with Sanders to demand higher stimulus payments to individuals in the last round of COVID relief.

That doesn’t mean we should be optimistic about people like Hawley, who wouldn’t even admit that Biden won the election, helping the new administration pass important legislation. But Republicans are going to have an increasingly difficult time making a coherent case against economic mercy for the beleaguered populace.

“This idea that the inflation hawks will come back — I just think they’re living in an era that has disappeared,” Elizabeth Warren told me.

However popular it is, Biden’s agenda will be possible only if Democrats find a way to legislate in the face of Republican nihilism. They’ll have to either convince moderates to finally jettison the filibuster, or pass economic legislation through reconciliation, a process that requires only a majority vote. Where Congress is stalemated, Biden will have to make aggressive use of executive orders and other types of administrative action. But he has at least the potential to be the grandfather of a more socially democratic America.

A moderate president, says Skowronek, can also be a transformative one. “It’s a mistake to think that moderation is a weakness in the politics of reconstruction,” he said, noting that both Abraham Lincoln and Roosevelt were “viciously” attacked from the left. “Moderation can stand as an asset if it’s firmly grounded in a repudiation of the manifest failure and bankruptcy of the old order. In that sense, moderation is not a compromise or a middle ground. It’s the establishment of a new common sense.”

There is, of course, no guarantee that Biden will fully rise to the moment. Skowronek has always expected that eventually American politics will change so much that the patterns he identified will no longer apply. “All I can say is that so many of the elements, the constellation of elements that you would associate with a pivot point, are in place,” he said. In this national nadir, we can only hope that history repeats itself. ###

[Michelle Goldberg has been an Opinion columnist at this newspaper since 2017. She is the author of several books about politics, religion and women’s rights, and was part of a team that won a Pulitzer Prize for public service in 2018 for reporting on workplace sexual harassment issues. She received a BA (English) from the State University of New York (SUNY) at Buffalo and an MS (journalism) from the University of California at Berkeley.]

Copyright © 2021 The New York Times Company

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Saturday, January 30, 2021

Counterpoint — Yale Law Professor Emily Bazelon Provides A Discussion Of The Internet Freedom Of Speech Controversy Without Ideological Bias

Not without trepidation, this blogger posted an essay yesterday that examined the Internet freedom of speech controversy with a right-of-center orientation. Yesterday's essay was Point and today's essay (below) is Counterpoint. If this is (fair & balanced) adhereance to free and open discussion of an issue in a democracy, so be it.

[x NY Fishwrap 'Zine]
Why Is Big Tech Policing Speech? Because The Government Isn’t
By Emily Bazelon

TagCrowd Cloud provides a visual summary of the blog post below

created at TagCrowd.com

In the months leading up to the November election, the social media platform Parler attracted millions of new users by promising something competitors, increasingly, did not: unfettered free speech. “If you can say it on the streets of New York,” promised the company’s chief executive, John Matze, in a June CNBC interview, “you can say it on Parler.”

The giants of social media — Facebook, Twitter, YouTube, Instagram — had more stringent rules. And while they still amplified huge amounts of far-right content, they had started using warning labels and deletions to clamp down on misinformation about COVID-19 and false claims of electoral fraud, including in posts by President Trump. Conservative figures, including Senator Ted Cruz, Eric Trump and Sean Hannity, grew increasingly critical of the sites and beckoned followers to join them on Parler, whose investors include the right-wing activist and heiress Rebekah Mercer. The format was like Twitter’s, but with only two clear rules: no criminal activity and no spam or bots. On Parler, you could say what you wanted without being, as conservatives complained, “silenced.”

After the election, as Trump sought to overturn his defeat with a barrage of false claims, Matze made a classic First Amendment argument for letting the disinformation stand: More speech is better. Let the marketplace of ideas run without interference. “If you don’t censor, if you don’t — you just let him do what he wants, then the public can judge for themselves,” Matze said of Trump’s Twitter account on the New York Times podcast “Sway.” “Just sit there and say: ‘Hey, that’s what he said. What do you guys think?’”

Matze was speaking to the host of “Sway,” Kara Swisher, on January 7 — the day after Trump told supporters to march on the US Capitol and fight congressional certification of the Electoral College vote. In the chaos that followed Trump’s speech, the American marketplace of ideas clearly failed. Protecting democracy, for Trump loyalists, had become a cry to subvert and even destroy it. And while Americans’ freedoms of speech and the press were vital to exposing this assault, they were also among its causes. Right-wing media helped seed destabilizing lies; elected officials helped them grow; and the democratizing power of social media spread them, steadily, from one node to the next.

Social media sites effectively function as the public square where people debate the issues of the day. But the platforms are actually more like privately owned malls: They make and enforce rules to keep their spaces tolerable, and unlike the government, they’re not obligated to provide all the freedom of speech offered by the First Amendment. Like the bouncers at a bar, they are free to boot anyone or anything they consider disruptive. In the days after January 6, they swiftly cracked down on whole channels and accounts associated with the violence. Reddit removed the r/DonaldTrump subreddit. YouTube tightened its policy on posting videos that called the outcome of the election into doubt. TikTok took down posts with hashtags like #stormthecapitol. Facebook indefinitely suspended Trump’s account, and Twitter — which, like Facebook, had spent years making some exceptions to its rules for the president — took his account away permanently.

Parler, true to its stated principles, did none of this. But it had a weak point: It was dependent on other private companies to operate. In the days after the Capitol assault, Apple and Google removed Parler from their app stores. Then Amazon Web Services stopped hosting Parler, effectively cutting off its plumbing. Parler sued, but it had agreed, in its contract, not to host content that “may be harmful to others”; having promised the streets of New York, it was actually bound by the rules of a kindergarten playground. In a court filing, Amazon provided samples of about 100 posts it had notified Parler were in violation of its contract in the weeks before the Capitol assault. “Fry ’em up,” one said, with a list of targets that included Nancy Pelosi and Chuck Schumer. “We are coming for you and you will know it.” On January 21, a judge denied Parler’s demand [PDF] to reinstate Amazon’s services.

It’s unlikely the volume of incendiary content on Parler could rival that of Twitter or Facebook, where groups had openly planned for January 6. But Parler is the one that went dark. A platform built to challenge the oligopoly of its giant rivals was deplatformed by other giants, in a demonstration of how easily they, too, could block speech at will.

Over all, the deplatforming after January 6 had the feeling of an emergency response to a wave of lies nearly drowning our democracy. For years, many tech companies had invoked the American ethos of free speech while letting disinformation and incitement spread abroad, even when it led to terrible violence. Now they leapt to action as if, with America in trouble, American ideals no longer applied. Parler eventually turned to overseas web-hosting services to get back online.

“We couldn’t beat you in the war of ideas and discourse, so we’re pulling your mic” — that’s how Archon Fung, a professor at Harvard’s Kennedy School of Government, put it, in expressing ambivalence about the moves. It seemed curiously easier to take on Trump and his allies in the wake of Democrats’ victories in the Senate runoffs in Georgia, giving them control of both chambers of Congress along with the White House. (Press officers for Twitter and Facebook said no election outcome influenced the companies’ decision.) And in setting an example that might be applied to the speech of the other groups — foreign dissidents, sex-worker activists, Black Lives Matter organizers — the deplatforming takes on an ominous cast.

Fadi Quran, a campaign director for the global human rights group Avaaz, told me he, too, found the precedent worrying. “Although the steps may have been necessary to protect American lives against violence,” he said, “they are a reminder of the power big tech has over our information infrastructure. This infrastructure should be governed by deliberative democratic processes.”

But what would those democratic processes be? Americans have a deep and abiding suspicion of letting the state regulate speech. At the moment, tech companies are filling the vacuum created by that fear. But do we really want to trust a handful of chief executives with policing spaces that have become essential parts of democratic discourse? We are uncomfortable with government doing it; we are uncomfortable with Silicon Valley doing it. But we are also uncomfortable with nobody doing it at all. This is a hard place to be — or, perhaps, two rocks and a hard place.

When Twitter banned Trump, he found a seemingly unlikely defender: Chancellor Angela Merkel of Germany, who criticized the decision as a “problematic” breach of the right to free speech. This wasn’t necessarily because Merkel considered the content of Trump’s speech defensible. The deplatforming troubled her because it came from a private company; instead, she said through a spokesman, the United States should have a law restricting online incitement, like the one Germany passed in 2017 to prevent the dissemination of hate speech and fake news stories.

Among democracies, the United States stands out for its faith that free speech is the right from which all other freedoms flow. European countries are more apt to fight destabilizing lies by balancing free speech with other rights. It’s an approach informed by the history of fascism and the memory of how propaganda, lies and the scapegoating of minorities can sweep authoritarian leaders to power. Many nations shield themselves from such anti-pluralistic ideas. In Canada, it’s a criminal offense to publicly incite hatred “against any identifiable group.” South Africa prosecutes people for uttering certain racial slurs. A number of countries in Europe treat Nazism as a unique evil, making it a crime to deny the Holocaust.

In the United States, laws like these surely wouldn’t survive Supreme Court review, given the current understanding of the First Amendment — an understanding that comes out of our country’s history and our own brushes with suppressing dissent. The First Amendment did not prevent the administration of John Adams from prosecuting more than a dozen newspaper editors for seditious libel or the Socialist and labor leader Eugene V. Debs from being convicted of sedition over a speech, before a peaceful crowd, opposing involvement in World War I. In 1951, the Supreme Court upheld the convictions of Communist Party leaders for “conspiring” to advocate the overthrow of the government, though the evidence showed only that they had met to discuss their ideological beliefs.

It wasn’t until the 1960s that the Supreme Court enduringly embraced the vision of the First Amendment expressed, decades earlier, in a dissent by Justice Oliver Wendell Holmes Jr.: “The ultimate good desired is better reached by free trade in ideas.” In Brandenburg v. Ohio, that meant protecting the speech of a Ku Klux Klan leader at a 1964 rally, setting a high bar for punishing inflammatory words. Brandenburg “wildly overprotects free speech from any logical standpoint,” the University of Chicago law professor Geoffrey R. Stone points out. “But the court learned from experience to guard against a worse evil: the government using its power to silence its enemies.”

This era’s concept of free speech still differed from today’s in one crucial way: The court was willing to press private entities to ensure they allowed different voices to be heard. As another University of Chicago law professor, Genevieve Lakier, wrote in a law-review article last year [PDF], a hallmark of the 1960s was the court’s “sensitivity to the threat that economic, social and political inequality posed” to public debate. As a result, the court sometimes required private property owners, like TV broadcasters, to grant access to speakers they wanted to keep out.

But the court shifted again, Lakier says, toward interpreting the First Amendment “as a grant of almost total freedom” for private owners to decide who could speak through their outlets. In 1974, it struck down a Florida law requiring newspapers that criticized the character of political candidates to offer them space to reply. Chief Justice Warren Burger, in his opinion for the majority, recognized that barriers to entry in the newspaper market meant this placed the power to shape public opinion “in few hands.” But in his view, there was little the government could do about it.

Traditionally, conservatives have favored that libertarian approach: Let owners decide how their property is used. That’s changing now that they find their speech running afoul of tech-company rules. “Listen to me, America, we were wiped out,” the right-wing podcaster Dan Bongino, an investor in Parler, said in a Fox News interview after Amazon pulled its services. “And to all the geniuses out there, too, saying this is a private company, it’s not a First Amendment fight — really, it’s not?” The law that prevents the government from censoring speech should still apply, he said, because “these companies are more powerful than a de facto government.” You needn’t sympathize with him to see the hit Parler took as the modern equivalent of, in Burger’s terms, disliking one newspaper and taking the trouble to start your own, only to find no one will sell you ink to print it.

One problem with private companies’ holding the ability to deplatform any speaker is that they’re in no way insulated from politics — from accusations of bias to advertiser boycotts to employee walkouts. Facebook is a business, driven by profit and with no legal obligation to explain its decisions the way a court or regulatory body would. Why, for example, hasn’t Facebook suspended the accounts of other leaders who have used the platform to spread lies and bolster their power, like the president of the Philippines, Rodrigo Duterte? A spokesman said suspending Trump was “a response to a specific situation based on risk” — but so is every decision, and the risks can be just as high overseas.

“It’s really media and public pressure that is the difference between Trump coming down and Duterte staying up,” says Evelyn Douek, a lecturer at Harvard Law School. “But the winds of public opinion are a terrible basis for free-speech decisions! Maybe it seems like it’s working right now. But in the longer run, how do you think unpopular dissidents and minorities will fare?”

Deplatforming works, at least in the short term. There are indications that in the weeks after the platforms cleaned house — with Twitter suspending not just Trump but some 70,000 accounts, including many QAnon influencers — conversations about election fraud decreased significantly across several sites. After Facebook reintroduced a scoring system to promote news sources based on its judgment of their quality, the list of top performers, usually filled by hyperpartisan sources, featured CNN, NPR and local news outlets.

But there’s no reason to think the healthier information climate will last. The very features that make social media so potent work both to the benefit and the detriment of democracy. YouTube, for instance, changed its recommendation algorithm in 2019, after researchers and reporters (including Kevin Roose at The New York Times) showed how it pushed some users toward radicalizing content. It’s also telling that, since the election, Facebook has stopped recommending civic groups for people to join. After January 6, the researcher Aric Toler at Bellingcat surfaced a cheery video, automatically created by Facebook to promote its groups, which imposed the tagline “community means a lot” over images of a militia brandishing weapons and a photo of Robert Gieswein, who has since been charged in the assault on the Capitol. “I’m afraid that the technology has upended the possibility of a well-functioning, responsible speech environment,” the Harvard law professor Jack Goldsmith says. “It used to be we had masses of speech in a reasonable range, and some extreme speech we could tolerate. Now we have a lot more extreme speech coming from lots of outlets and mouthpieces, and it’s more injurious and harder to regulate.”

For decades, tech companies mostly responded to such criticism with proud free-speech absolutism. But external pressures, and the absence of any other force to contain users, gradually dragged them into the expensive and burdensome role of policing their domains. Facebook, for one, now has legions of low-paid workers reviewing posts flagged as harmful, a task gruesome enough that the company has agreed to pay $52 million in mental-health compensation to settle a lawsuit by more than 10,000 moderators.

Perhaps because it’s so easy to question their motives, some executives have taken to begging for mercy. “We are facing something that feels impossible,” said Jack Dorsey, Twitter’s chief executive, while being grilled by Congress last year. And Facebook’s founder and chief executive, Mark Zuckerberg, has agreed with lawmakers that the company has too much power over speech. Two weeks after suspending Trump, Facebook said its new oversight board, an independent group of 20 international experts, would review the decision, with the power to make a binding ruling.

Zuckerberg and Dorsey have also suggested openness to government regulation that would hold platforms to external standards. That might include, for example, requiring rules for slowing the spread of disinformation from known offenders. European lawmakers, with their more skeptical free-speech tradition (and lack of allegiance to American tech companies), have proposed requiring platforms to show how their recommendations work and giving users more control over them, as has been done in the realm of privacy. Steps like these seem better suited to combating misinformation than eliminating, as is often suggested, the immunity platforms currently enjoy from lawsuits, which directly affects only a narrow range of cases, mostly involving defamation.

There is no consensus on a path forward, but there is precedent for some intervention. When radio and television radically altered the information landscape, Congress passed laws to foster competition, local control and public broadcasting. From the 1930s until the 1980s, anyone with a broadcast license had to operate in the “public interest” — and starting in 1949, that explicitly included exposing audiences to multiple points of view in policy debates. The court let the elected branches balance the rights of private ownership with the collective good of pluralism.

This model coincided with relatively high levels of trust in media and low levels of political polarization. That arrangement has been rare in American history. It’s hard to imagine a return to it. But it’s worth remembering that radio and TV also induced fear and concern, and our democracy adapted and thrived. The First Amendment of the era aided us. The guarantee of free speech is for democracy; it is worth little, in the end, apart from it. ###

[Emily Bazelon is a staff writer for The New York Times Magazine and a former senior editor at Slate. Bazelon also is a senior research scholar in Law and Truman Capote Fellow for Creative Writing and Law at Yale Law School. Her 2019 book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, won the Los Angeles Times Book Prize in the current-interest category. And before that, Bazelon wrote Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy (2013). She is a graduate of Yale College (BA, English) and Yale Law School (JD) and was an editor of the Yale Law Journal.]

Copyright © 2021 The New York Times Company

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Friday, January 29, 2021

Read Carefully — Beware Of Right-Wing Bias In This Essay

As this blogger burrowed deeper into today's essay for this blog, he discovered that the essay author, law professor Genevieve Lakier, used the descriptive term, conservative in a very loose and inaccurate way. For example, The Loser (of the 2020 election) is not a conservative; he has no respect for the norms and traditions of our government. He is a radical white supremacist and outspoken bigot — he wants to conserve nothing in e pluribus unum or anything that offends his racist sensibilities. Similarly, The Loser's minions are willing to destroy this country in order to save it (voiced by the US military in Vietnam, 1964-1973). If this is a (fair & balanced) renunciation of murky political labels, so be it.

[x The Atlantic]
The Great Free-Speech Reversal
By Genevieve Lakier

TagCrowd Cloud provides a visual summary of the blog post below

created at TagCrowd.com

There is a rich historical irony to the fact that today, conservatives are the ones who argue most forcefully that the decisions by private companies to “deplatform” certain speakers threaten what President Donald Trump described in 2020 as the “bedrock” American right to freedom of speech. Until very recently, this was an argument made almost exclusively by those on the left.

The decision by Twitter, Facebook, and a host of other social-media outlets to ban Trump from their platforms after the January 6 attack on the Capitol intensified conservatives’ long-standing concerns that the powerful tech industry is violating their free-speech rights. Trump encouraged and amplified these arguments when he issued a (largely symbolic) executive order in May 2020 declaring that “free speech is the bedrock of American democracy,” and insisted that “in a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand pick the speech that Americans may access and convey.”

The deplatforming of the president appeared to many conservatives to offer vivid proof that these companies are just as dangerous to freedom of speech as Trump had claimed. Steve Daines, a Republican senator from Montana, took to Twitter to attack “Big Tech” for “censoring [Trump] and the free speech of American citizens.” Trump’s trade adviser, Peter Navarro, claimed that the platforms’ decision to restrict speech “threatened our democracy.” And on the floor of the Capitol building, newly sworn-in Representative Marjorie Taylor Greene of Georgia wore a mask bearing a single word—censored—in stark white letters. Many liberals, meanwhile, insisted that the decision to deplatform the president had nothing to do with freedom of speech, at least not as protected by the First Amendment.

This is something of a reversal. Indeed, the idea that private actors, not just government officials, might threaten the freedom of speech guaranteed by the First Amendment, as well as the other rights protected by the Constitution, was first suggested by big-government liberals, whom contemporary conservatives love to hate. In the early 20th century, progressive legal scholars such as Felix Cohen and Robert Hale argued against the notion that the Constitution protects rights including freedom of speech from only government action. Private corporations wield tremendous power over individuals’ lives and fortunes, and to overlook that power when interpreting the meaning of constitutionally protected rights, Cohen and Hale believed, would make no sense.

This argument eventually found favor with progressive justices on the Supreme Court during the New Deal and led the court to conclude—as it did in the 1946 decision Marsh v. Alabama, for example—that the First Amendment could prevent private corporations from excluding speakers from property they owned and controlled when doing so was necessary to ensure that “the channels of communication remain free.” In later decades, although the Court struggled to define exactly when and under what circumstances the First Amendment applied to private actors, it continued to insist that it did sometimes apply. In 1968, for example, the great liberal lion, Justice Thurgood Marshall, wrote an opinion that held that a shopping mall’s private owner could not exclude protesters from the mall’s passageways without violating their First Amendment rights. Only after President Richard Nixon appointed four pro-business conservative justices did the Supreme Court reject this view of the First Amendment, and insist that private corporations have no constitutional obligation to grant access to their property to speakers they dislike, no matter how powerful those corporations might be.

When Trump and other conservatives complain that the decision to remove the president from popular platforms violates his freedom of speech, they place themselves in strange company. They acknowledge, albeit only implicitly and perhaps opportunistically, that early-20th-century progressives were correct to worry about private power’s threat to constitutionally protected liberties.

This recognition is welcome, if overdue. For decades now, nearly all of the important forums of mass communication in the United States (radio and television stations, newspapers and magazines, movies and, yes, social-media platforms) have been privately owned. Given this state of affairs, private companies’ decisions about what speech to allow or exclude from their property obviously have the capacity to limit the free and open debate that sustains American democracy. The difficult thing is figuring out what to do about it.

In recent weeks, some conservatives have suggested that courts should impose the same First Amendment duties on today’s social-media companies that the Marsh v. Alabama Court imposed on a private owner of a company town. In principle, this approach makes a lot of sense. Just like the company town in Marsh, Twitter and Facebook today provide an important forum for public conversation and debate. They represent, as Senator John Cornyn [R-TX] has argued, the new “public squares” of the internet age.

In practice, however, extending the rule from Marsh to social media would effectively make the nine justices on the Supreme Court (many of whom have, by all appearances, a poor grasp of the basic mechanisms of digital technology) the final arbiters of freedom of speech on social media for 330 million Americans. One might doubt whether the Court is best positioned to assess how free-speech principles translate to this new technological environment. Even if one doesn’t doubt that, the Supreme Court has evinced no desire to extend its holding in Marsh to new kinds of private property. If anything, the opposite.

Rather than imposing First Amendment duties on the powerful private companies that operate today’s virtual public squares, some on the left have argued, the best option for preserving freedom of speech on social media is to allow the companies to self-regulate, by creating internal speech policies that limit their ability to pick and choose what speech to allow on the platform. This is an idea that, unlike the probably doomed idea of reviving Marsh, is already being put into practice.

Over the past few years, social-media companies have expended considerable effort developing internal policies that they claim are designed to ensure that “all people can participate in the public conversation [on the platforms] freely and safely.” Instead of exercising the unbounded freedom that post-Nixon First Amendment cases give them to exclude whomever they like from their platforms, companies such as Twitter and Facebook have declared themselves bound by a principled, though not legally mandated, duty to promote freedom of speech on their platforms, and have developed policies that allow speech to be removed, flagged, or hidden only when it satisfies certain conditions. These policies also provide limited due-process rights to those regulated by them.

When they banned Trump, the platforms took care to justify the decision by reference to these policies. Twitter, for example, provided a detailed explanation of why Trump’s speech violated its policy against glorifying violence and therefore could be removed despite the company’s general preference for “the public [to] hear from elected officials and world leaders directly.” Mark Zuckerberg made a similar argument to explain why Facebook was banning Trump until the end of his presidency, and just recently Facebook asked its court-like Oversight Board, established a few months ago to provide independent oversight of its speech-regulating decisions, to evaluate whether the ban violated the company’s policies.

These efforts to justify Trump’s deplatforming by reference to social-media companies’ internal speech policies—and in particular, Facebook’s willingness to have that decision reviewed by an independent, quasi-judicial Oversight Board—suggest that the project of platform self-regulation is gaining traction. The important question facing internet users in the United States and around the world is whether the platforms’ self-regulation will be sufficient to protect the important democratic and expressive freedoms that the American free-speech tradition cares about.

There are reasons to be skeptical that self-regulation will be enough. Perhaps the primary reason is the fact that, notwithstanding their presumably sincere commitment to freedom of speech, social-media companies are, in the end, for-profit entities that offer a forum for speech in order to make money. Will they protect expressive freedom even when it conflicts with corporate profits? Conversely, outside the extraordinary circumstances of the Capitol invasion, will they take down genuinely harmful speech that brings readers to their platforms? Past history suggests that the answer to both of these questions will be no. Certainly the often–ad hoc and inconsistent decision making that the platforms demonstrated during the 2020 election campaign is alone concerning.

Given all of this, it is worth considering a third option that has been used in the past, and could once again be used, to protect expressive freedom from private power: laws requiring that the private media companies governing the mass public sphere abide by basic nondiscrimination and, often, due-process obligations. Even when the First Amendment intruded further into the private sphere than it does today, statutory nondiscrimination and due-process requirements were lawmakers’ primary tools to ensure that the private companies that controlled the telegraph and telephone wires, the radio and television airwaves, and the cable networks did not use their power to discriminate in favor of certain political viewpoints, or otherwise undermine the vitality of public debate. The most famous, and controversial, example of these laws was the Fairness Doctrine, which imposed extensive, if vague, nondiscrimination duties on radio and television broadcasters, and to an extent, cable-television companies, from the 1930s until the late ’80s, when Ronald Reagan’s FCC repealed it. But the Fairness Doctrine is only one example of a much wider array of media nondiscrimination laws, many of which continue to ensure, to this day, that, as one senator put it in 1926, the “few men” who control the “great publicity vehicles” of radio and television [sic, broadcast TV began in 1947] do not limit the range of ideas and viewpoints that the public can hear.

In this context as well, a significant shift in political attitudes has occurred. For much of the 20th century, conservatives were the ones who railed against the constraints that federal laws like the Fairness Doctrine imposed on private media companies, and liberals and progressives defended these policies against attack. Today, however, many conservatives argue for the need to impose statutory nondiscrimination duties on social-media companies, while many liberals express alarm about the constraints such bills would impose on the freedom of private companies.

Although some of the bills that have been proposed to rein in social-media companies’ power are certainly poorly drafted and could easily be abused by self-interested politicians, advocates on the left should not give up on the possibility of using regulation to protect freedom of speech on the platforms. Designing nondiscrimination rules that can work effectively in social media’s new technological environment will be no easy feat. But that does not mean it cannot be done. There is no reason Congress could not impose minimum procedural requirements on the platforms when they act to remove their users’ speech.

All of which is to say that the debate about free speech on social media should not be viewed primarily as a debate about whether the social-media companies violated Trump’s freedom of speech when they banned him, or whether they violate anyone else’s freedom of speech when they make thousands of similar decisions every day. Instead, it should be viewed primarily as a debate about what freedom of speech means on social media, and, perhaps most importantly, about who gets to decide—courts, corporations, or legislatures. That liberals and conservatives have switched perspectives on these questions in recent years reflects the extraordinary political fluidity, and perhaps possibility, of the current moment.

However the political alignments work out, Trump’s deplatforming illuminated a basic insight worth keeping in mind: Private companies not only participate in the marketplace of ideas but also determine to a significant extent who else can participate in it. We should not take comfort in the fact that the speech-regulating decisions by Big Tech companies do not and cannot violate the First Amendment as it is currently understood. Conservatives are correct to be worried about the threat that the private platforms pose to freedom of speech, even if this makes them more like big-government liberals than they might be willing to acknowledge. Those big-government liberals should realize as much, and act accordingly. ###

[Genevieve Lakier is an assistant professor of law and a Herbert and Marjorie Fried Teaching Scholar at the School of Law of the University of Chicago (IL). Her research explores the connections between culture and law. She is currently engaged in a long-term project exploring the cultural history of the First Amendment, and another project exploring the changing role of the state in the regulation of sex. Between 2006 and 2008, she was an Academy Scholar at the Weatherhead Center for International and Area Studies at Harvard University (MA). She also clerked for Judge Leonard B. Sand of the Southern District of New York and Judge Martha C. Daughtrey of the Sixth Circuit Court of Appeals. Lakier received an AB (anthropology) from Princeton University (NJ), an MA and PhD (anthropology) from the University of Chicago, and a JD from the New York University School of Law (NYC).]

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