Mike Masnick 0:00

So Jennifer, one of the fun sites on the internet that we'll be talking about a little bit today is Kickstarter, which is the crowdfunding site, and it has a tagline/prompt of "Bring a creative project to life." this is, I will note, the last time ever that we're doing one of these cold opens with a prompt, but we are doing it, and we are using Kickstarter, and I would like to ask you, what creative project would you like to bring to life?

Jennifer Granick 0:28

well, I already did my most you know, favorite creative project when I created, some knit hats out of the fur of my giant Newfoundland dog. So you kind of feel like, oh, maybe I peaked in terms of creativity. Other

Mike Masnick 0:44

are amazing. have seen them. They are amazing.

Jennifer Granick 0:46

Yeah. Other people hope I don't go down that creative path ever again. But the thing I've actually been thinking about is, there are a lot of people out there who have had sort of, you know, great educations, but kinda limited, like focused on only computer science or engineering or that sort of thing. And, you know, they wanna like know more about Western civilization and the great books, but they either didn't have a chance to read them or weren't able to like fully appreciate them when they were just in middle school or high school. And my idea is, you know, there's a lot of people out there who are English professors, you know, who are experts in literature, and kind of connecting the people who want to read with the people who have read and thought about the books in sort of like a book group kind of fashion. So not a lecturer sort of thing, but like invite a professor to your book group to just be like a friend, part of the conversation, just talk about some of these great books with you. I think it's, fun for the, professors to maybe make a little extra money and really valuable for people who are serious about books and about learning about, you know, literature and our tradition and stuff to be able to have, more expertise in a fun situation. So that's something I've been thinking about as kinda like a cool sort of, business.

Mike Masnick 2:00

That's very cool. That's, I was expecting a, a more joking answer, but that's that's a very, very cool idea. I appreciate that.

Jennifer Granick 2:09

What, what would be your creative project that you wanna bring to life?

Mike Masnick 2:12

Oh my gosh, I was thinking through this, in terms of I have a long list of creative projects, and so it's like which one do I wanna talk about? I have been seriously thinking about, and I think this would be fun to do, to write a novel that is, uh, uh, reflective of the times that we live in. There's so much stuff going on. I, I have an idea for a, novel that I guess comically comments on, on the world that we live in today. I,

Jennifer Granick 2:37

I think that the world could use a little bit of humor while not like, people turn, having to turn a blind eye in order for us to have fun in what is now the real world. So I like that idea. Um, do you wanna say a little more about how the novel's gonna go?

Mike Masnick 2:53

I, I, I'm afraid to. So, I think, uh, for people who follow me and my writing and everything, I think they would recognize some of the themes, though I might present them in a slightly different form than, than I normally do with, my writing

Jennifer Granick 3:08

Uh-huh. I think that the world is waiting

Mike Masnick 3:12

Excellent Hello, and welcome to Control Alt Speech, your weekly roundup of the major stories about online speech, content moderation, and internet regulation. It is May the 21st, 2026, and this week we are talking about AI in Africa, online speech choke points, regulators using VPNs, and just how much you're allowed to post on X these days. I am Mike Masnick, the founder and editor of Techdirt, with special guest host Jennifer Granick, a civil liberties lawyer previously with the ACLU and Stanford Law, and author of the wonderful book, American Spies, all about the modern surveillance society that we live in. I will note this is the last week of Ben's well-earned paternity leave, and he and I will both be back next week, which raises a few important things that are worth mentioning that if you've been listening to the podcast, you should already know, but I feel the need to remind you of them. There are changes afoot. As mentioned, we went through the last of the opening prompts. We are getting rid of that. We have run out of prompts. We have exhausted that. if you are a subscriber to the new Patreon, which you should be, and you can find that at patreon.com/ctrlaltspeech, C-T-R-L-A-L-T speech. Uh, if you a subscriber there, you can now access the Control Alt Speech Plus podcast feed. If you go to the page and if you view the membership tab, you can get the new RSS feed, which will be important starting next week because part of the podcast will only be available to those who subscribe and support us that way. We also have the free podcast, which will be slightly shorter and a little bit different. So if you wanna get access to the full continuing podcast like you've had it all along, please go support us, subscribe at the Patreon, and you can go find that RSS feed now and subscribe to it so you'll be ready next week when the episode changes go into effect. There should be nothing in that feed right now because we haven't done that. It will start next week. But you can subscribe now, and you can get your access for starting next Thursday. I'll also note that this is the last week to get in at the special founder discount rate for the Patreon. once Ben is back, we will still have the offering, but prices will go up. So if you wanna be a founder supporter, please do that now. we also have a post up on the Patreon right now asking for ideas on our new cold open. How do we want to replace that prompt that has grown so tired? so you can weigh in and help us figure out what we are going to say and how we are going to open the podcast test, so you can go check it out and share your thoughts. And starting tomorrow, we'll be posting the first suggestion box post, for Patreon supporters, where founder-level subscribers can submit links to stories that they would like us to cover. So keep an eye out for that starting tomorrow if you are supporting at the founder level. So please check out the Patreon. We're excited about this. This'll be a little bit of an experiment, and we're sort of happy to see what happens there. But with that very long intro, let us get to our stories. We have, Jennifer, I think you're going to take our first story, which is sort of two stories combined. we mentioned Kickstarter in the cold open as the prompt, but we had a story, an interesting story this week involving Kickstarter, and then one involving Apple, but in some ways they're related. So do you wanna explain those two stories that you found?

Jennifer Granick 7:08

Yeah, sure. So, you know, Kickstarter, recently, made some rule changes about, how it manages, sexually explicit, campaigns, on its site. And, it was trying to address a discrepancy between the payment processor Stripe, f- which Kickstarter people use, and their rules about sexually explicit, materials, and Kickstarter's rules, which were a little more liberal. They also have regulations, about sexually explicit material, but you know, the devil is in the details, so there was some space there, and sometimes people's Kickstarters were getting frozen by Stripe, and Kickstarter wasn't really able to help them out or unfreeze the funds or that sort of thing. So they decided, well, you know, here's our, trust and safety decision. Let's, like, close the gap between these two. And then, they had to back down from that. There was a, cry out from the, Kickstarter users, that this was, not what they wanted and it interfered with their creativity and their, campaigns and that sort of thing. And so Kickstarter realized relatively quickly, like, "Oh, okay, this isn't what our people want. We need to, like, go back and roll back to our original rules." And then they just have kind of like a makeshift way of trying to manage the problems between what the payment processor Stripe wants and what their rules are and what Kickstarter's own community rules are, and just try to, manage the discrepancy there. so you know, here you have a situation where, Stripe is really, influencing or affecting what the preferred rules would otherwise be on platforms for which it just provides payment processing. so you know, we can-- we're gonna talk about that, but I think that, the other big story I thought was similar, 'cause we're talking about, who gets to control what gets to be done online, and here you have Stripe having this outsized, impact. And I think, you know, the other story I wanted to talk about was, about Apple, and ahead of their annual developer conference, they published this overview of the steps that they take in order to protect, users and developers, particularly in the App Store, and this long list of, steps they take and how their moderation and control of the App Store has helped, you know, eliminate, or not eliminate, but decrease fraud, decrease spam, interrupt inauthentic reviews, malware, and those sorts of things, and how this is really beneficial. And we know, Apple has this reputation for privacy and security in particular, but Apple has this locked-in ecosystem and, that impacts what people who have iPhones, and use the App Store are able to do online. And so here we have two very important, companies, each of which has a outsized impact just based on corporate policies about what users and the public are then able to do

Mike Masnick 9:53

Yeah. I, I thought both of these stories were, were really interesting, and I think it's one of these issues that is less well thought of. Like, when people are talking about trust and safety and content moderation decisions, they naturally sort of tend to think specifically about, the big social media companies and, the direct impact of, Facebook deciding what kind of content they're gonna allow, what kind of content they're gonna take down. starting with the, the Stripe story, that reveals this sort of hidden layer of infrastructure provider that I think is becoming a bigger and bigger story over the last few years. and there, there was actually just a, really good book that came out recently by Rainie Reitman, called Transaction Denied, uh, just came out like a month ago, talking about the payment providers and what kind of impact they have on speech and their ability to, reject speech. Often, because they're a layer away from the actual consumer, often in very hidden ways that a lot of users don't even know what's happening. and part of what struck me as interesting about the Kickstarter situation was because of the backlash, Kickstarter was actually p- I thought pretty, honest and upfront first saying like, "Yeah, we, we totally fucked this up." but, but then, sort of saying like, "Look, Stripe processes the payments, and they have their rules," and they were, like, killing projects that Kickstarter itself had approved that Stripe said went against their rules. and it just, raises a whole bunch of questions about, where is the, power? And, I'm sort of curious on your take on this, you know, one of the things that I've been thinking a lot about lately is the fact that the powers that be, for both commercial and political power reasons, have a way of hunting up and down the network stack to figure out where that friction point is to then push on it, in some cases to squeeze out profits and in some cases for political power. And I'm sort of curious, how do you view that and th- this sort of hunt for that choke point?

Jennifer Granick 11:56

Yeah. I mean, it, it's such a-- it, impacts almost all of the policy conversations we have about the internet, you know, all the way from, like, network neutrality to, copyright you know, infringement interdiction to, questions about what people are allowed to say and do as end users on the platform. I think that payment processors have been a underexplored choke point themselves. You know, we know, the past there's been concern about how MasterCard and Visa, won't process payments for, sites that are-- have to do with pornography or sex work or, or that sort of thing, and then that becomes kind of themselves having a, a control over, activity online that is potentially lawful. and I know, the ACLU filed a complaint with the FTC against MasterCard and Visa for refusing to process payments related to Pornhub or other kinds of sex worker type sites. you know, and we have this example with Stripe. I think, there are also the efforts to kind of take the regulation down in the stack, like you said. And one case I think is really important about that is Sony versus Cox, which was in the Supreme Court just this, little bit ago. And Sony, sued, so copyright holders sued an ISP basically saying that Cox needed to, you basically cancel people's accounts when Sony came to it with these takedown demands or with these allegations of copyright infringement. and there's a lot of, like, reasons why the case got this far, but it was like a trillion dollar case. And the idea is if you can get the ISP to basically block somebody's IP address and not provide them service anymore, yeah, you're doing a great job stopping them from infringing copyright, but you're also stopping them from accessing the internet altogether. And not just stopping that person from accessing it, but anybody who uses that IP address, whether it's a household or a library or, you know, a coffee shop or whatever it is. So, the regulation when the further down you go, almost it seems like the more, overbroad

Mike Masnick 13:53

Yeah. it's a very blunt instrument at,

Jennifer Granick 13:56

Very blunt instrument. Yeah, exactly, and I think that that becomes a real concern. you know, instead of looking at an individual's wrongdoing, you look to control it at a centralized point. and that centralized point can be very effective but is almost always gonna be overkill

Mike Masnick 14:17

Yeah. And it's interesting to me in a few ways, one of which is that, the founders and, CEO, I don't know if it-- it's two, two brothers founded Stripe, and I don't know if they're like co-CEOs or what, I forget. But they have spent many years sort of presenting themselves to the world as, I would say extremely libertarian, free speech supportive. you know, they really-- they show up on a lot of these podcasts and discussions about how they're enabling free speech. So it struck me as, as somewhat noteworthy then that apparently they're, whether it's for regulatory reasons or for whatever reasons, they're the ones who are the, the sort of prudes, you know, trying to force, force Kickstarter into shutting down certain forms of adult content that, were being funded through them. and yet, you know, they sort of stay out of it by, I mean, Kickstarter threw them under the bus, r-rightly so, because it was really their, issue that was happening. But it, it strikes me as this thing where... Part, part of what I wonder, and I don't know if you know this or not, is like how much of this has to do with the fact that Stripe is in a heavily regulated industry as well? Like, once you get into the financial space, they will often come up with excuses about how we have to do like know your customer stuff and because we're all worried about money laundering. and there are legitimate concerns there, but I wonder how much of that is used as cover to then be an excuse for saying like, "Okay, no more adult content" or, or anything of that nature.

Jennifer Granick 15:49

Yeah. I mean, I think it's, you know, why does this happen? And I think any company is going to be impacted by regulation, or fear of regulation and fear of liability, which I think, as you said, is probably much greater in the financial services, than it is in other, areas because it is so highly regulated. Money, I mean, the companies, want to make money, and I think that impacts their decision. Like Apple had a dispute with "Fortnite," over how much m-money or revenue Apple should make from downloads of the "Fortnite" app, and they had a dispute, and Apple blocked "Fortnite" from the App Store for a while. and you can always say, like, "Well, here's why we did it. You know, it's, it's not to gain an advantage in litigation. It's because they're violating our rules about how you, report your income." You know, in any highly regulated, world or with a lot of rules, you gotta be pretty uncreative if you can't come up with a reason to put a, sanction on somebody. Um, and then I think you also have just the kind of the values of the company that are something that, applies as well. And so maybe, you know, you can be libertarian but still be really concerned about trafficking, or you can be, you know, And I think, you know, one of the things I've always thought is that a lot of these major companies that we're used to, like, you know, the Apples and the Facebooks and the Googles of the world, started in the United States with lawyers who were trained in the United States with values that were, you know, the values that are inculcated by the legal education you get in the United States, which is like, the Constitution and the Bill of Rights and that sort of thing. And as time's gone on and these companies have gotten older and the people have changed and they're global and everything, I think that that sort of underlying ethic is less important now than are the concerns about regulation and public relations and money and, all those other types of, impacts that are, You know, the companies are different. They're for-profit. they have stockholders that they're responsible to. So I think we just don't live in the same world today when it comes to how companies police themselves that we lived in back in, say, like 2015.

Mike Masnick 17:58

Yeah. the other thing that this reminds me of a little bit, and I wonder if this has anything to do with it, is that, it's almost been a decade now since we got FOSTA passed, and we, we saw similar sort of pulling back from, allowing or enabling or assisting with adult content in all sorts of forums where you had, Craigslist shut down parts of its site. eBay, you know, suddenly started preventing, the selling of adult-related content in certain categories. Famously, Tumblr banned adult content as well. And a lot of this was sort of, whether accurate or not, was blamed on FOSTA potentially putting liability on them, even though FOSTA's specifically about sex trafficking, but what counts as facilitating or enabling or assisting in sex trafficking is, was unfortunately broad in the way the law was. D- do you think that any of this could be sort of a specific regulatory response to something like that?

Jennifer Granick 18:52

I don't know. I do think that there's a general sense of like, why take the chance? You know what I mean? If a small part of your revenue is based on, this type of content, and you don't need that revenue, but the potential risk is high. I mean, this is one of the reasons why we are so concerned about regulation, uh, you know, overall, is because it does tend to have just, basically every time we see that these regulations have a outside effect where it encourages more takedown and over-censorship than what the actual text could be read to, say. So it's,. You're going to have these situations where too much stuff is caught in the net

Mike Masnick 19:31

Yeah. So I wanna talk a little bit more... We've been focusing on the Kickstarter part of it, but I wanna talk a little bit more about the Apple side of the story. Apple's a little bit different. That's obviously a little bit more consumer-facing. and, you know, the Apple announcement is, is really interesting, right? I mean, they're sort of talking about all of this stuff that they've blocked, and, and they're sort of very proudly talking about, preventing $2.2 billion worth of fraud and,

Jennifer Granick 19:53

of fraud.

Mike Masnick 19:54

yeah, and, you know, and dangerous apps and account ki- You know, there's, the sense here in this announcement is basically like Apple's protecting you, Apple's protecting the world, Apple's making the world safe. And there is value in that, right? I mean, imagine the headlines if there was 2.2 billion more worth of fraud and it was happening on, on iPhones or whatever. but, like, I'm sort of balancing that with the fact that then we're also sort of trusting this one company to sort of police these things and, protect us. So I'm sort of curious, like, where do you come down on, like, they're protecting us versus there's sort of a police state element to it?

Jennifer Granick 20:31

Yeah, absolutely. I mean, there's a thing with Apple is there's this, you know, it's extremely popular platform, but there's a centralized point of failure. and so you have this like choke point, again, where it's very effective to target the company for censorship or the company's own censorship decisions impact, all these users. So, we had recently a case where there are people develop these apps in order to keep track of ICE agents or to monitor ICE agents' activity on the streets of Minneapolis and other places during the ongoing crackdown, on people who, they suspect of being, here without proper authorization. And, Apple, basically took down a number of these ICE watch-type applications, and then a day later, Google took these apps o-out of Google Play Store as well. So you have this point of failure. The government comes to them, they give them some co- you know, to say like, you know, "We're expecting you to do this," and then they do. and since Apple is a global store, they h- do this in other countries as well. Like there's an example where, Apple's made a lot of accommodations to operate in China and the Chinese government, had Apple remove gay dating apps from the App Store based on their own, ideas about what is or is not appropriate. So, when you have a central point of failure like that, you have a, right there that, you know, this is where a coercive government or whatever is gonna focus their attention. So, I think in some ways it can be a trade-off. I hear my colleagues at the ACLU telling me that security doesn't require a closed ecosystem that is impenetrable, and I believe that. but I also think that the way Apple has set things up and the way they do end-to-end encryption in their iCloud backups and that sort of thing, that they provide a lot more security than other platforms do for people. it's not the only way, but here the way they've set it up, there is this trade-off. It makes Apple extremely powerful. And same thing with, Cloudflare, right? Where you have a single point of failure. There's something that, and, these companies are under pressure. They have the values of their founders or the, you know, and that I think is a really scary world to live in where you have these weaknesses in the infrastructure of the most important technology for communications and business activity of our time.

Mike Masnick 22:56

Yeah. I mean, one of the lines that we will repeat over and over again on this podcast is, what believe Charlotte Wilner came up with, which was that, trust and safety could also stand for trade-offs and sadness because it's, it's all trade-offs and sadness. There's no, there's no right answer. Each approach, you know, there are incentives and reasons why things happen these ways, and when you have large centralized choke points, That's very helpful for, certain aspects of security, but also they become targets and, and there then are questions about who has control over those choke points. And so I think these two stories both are, are really good at, at highlighting that issue and how, uh, you know, I don't think either of us are saying that one approach is the right approach. It's just sort of making clear what is often not as well thought about, which is that there are always these choke points, and they're not always the most obvious ones.

Jennifer Granick 23:50

Yeah. I mean, I think the answer there, 'cause you're right, there's trade-offs. But I think the answer there is for when the trade-off is made, the decision has been made, Apple's gonna have this closed ecosystem, we try to minimize the downside, by bringing a strong public advocacy against Apple when it makes censorship decisions. So, you know, sort of name, shame, blame, pressure, complain, you know, and, and h- so that when this happens again the next time, Apple thinks, there is some cost to us making this, this censorship decision. and we try to bring that through, you know, whether it's FTC complaints or, public advocacy. I think that we don't have to accept all of the downsides of the trade-off as citizens.

Mike Masnick 24:39

Yeah, I mean, I think part of the discussion of the trade-off is how do you m- you know, minimize the downsides. That doesn't get rid of the trade-off, but allows you to, you know... But that also involves some level of transparency and, openness and discussion about what those actual trade-offs are.

Jennifer Granick 24:54

Right

Mike Masnick 24:56

story. you know, one of the things we've been following over the last few years obviously is the Online Safety Act in the UK and Ofcom, and they've been, beginning to do some enforcement actions there. And, There were a few announcements this week, including one with, X, but I'm gonna leave that one aside. But there was another one against a, an even more controversial site, if you can believe that, than X, which is the site that is known as Sanctioned Suicide, sometimes referred to as SASU. obviously this is, uh, a very, very sensitive issue. Obviously, whenever you're talking about anything having to do with suicide, it is a tricky issue to talk about for a variety of reasons, and Sanctioned Suicide is a site that has been around. It's very controversial. It has been banned in a number of countries. There have been attempts within various states in the US to see if they can ban it, though the First Amendment basically should not allow that. Well, there may be some, some court cases that test that at some point. and so it, it's an extremely controversial site, and Ofcom effectively went after them and this week issued a £950,000 fine against Sanctioned Suicide. and the, thing that struck me as very interesting is one of their lawyers, Preston Byrne, who's been very vocal on this subject and specifically on pushing back against Ofcom enforcement, that he feels or his clients feel or, know, reaches into the US where they should be protected and, and they're not subject to UK laws. he wrote a very long and detailed post sort of pushing back on Ofcom's fine, and in fact noting that part of the explanation of their fine was that they had to use a VPN. And so I'm not gonna go into the full background of the story 'cause it is very long. We'll have a link in the show notes. But effectively, there was conversations between Ofcom and Sanctioned Suicide last year, and Sanctioned Suicide appeared to take it seriously and put in place a geo-block to effectively try and block people from the UK from reaching the site. There was some sort of h- you could kind of get around it through a system where if you had already created an account before they put in place the geo-block and you used a VPN, you could reach some aspect of the site. There was something a little bit confusing with a sort of anti- spam provider that they use, that you could still access that. But the end result was that it was very difficult to reach the site if you were in the UK, and they had put in place, tools and blocks, and Ofcom had originally indicated that this was an acceptable approach, but then changed their mind and issued this fine, and somewhat amusingly, to me at least, you know, sort of revealed within the, the details of the fine that they issued that they had to use a VPN to, reach the site. Even though they claimed that the VPN was not effective, they still had to use it in order to reach the site and to describe what, what kinds of content they found. And, Preston Byrne sort of describes in his post that like, "Look, we did geo-block it, and you said it was okay," and you're sort of using these tricks that, yes, eventually anyone can get around them, but you have to be sort of technically savvy. And really, what the notice from Ofcom proves is that the geo-blocking was somewhat effective because they had to use the, use a VPN to get around it just to issue the fine. So, Jennifer, I'm, I'm sort of curious, what did you think of this story and everything that was happening here?

Jennifer Granick 28:24

Well, you know, I think, I think as a lawyer, I immediately sort of thought about how you are engineering your, jurisdiction over the site, because here they are basically saying, "We opt out. We don't wanna do business. We're not doing business in your country." And it's like, but the internet is global, and it's possible some way or another, it routes around censorship, right? It's possible some way or another to get in touch with the site from, the UK. And it's just interesting to me, just sort of, basically what that means is that any website is subject to the jurisdiction, theoretically, of every country on the face of the planet, even if you try to stop that from happening and, you know, target countries specifically where what you're doing is lawful. and it is, you know, a problem similar to centralization. This globalization of companies is a problem because, every country that comes in with whatever their rules are, eventually you kind of devolve to, like, the lowest, common denominator of just only what's legal everywhere. and then the special protections or values or whatever that different countries might have are, kind of ineffectual if you have to obey, anyone who can get in touch with your site with a VPN, which is basically everyone. it feels like-- or not feels like, I mean, I think legally it's true, but also I think it's important that websites that have lawful content be able to operate in the world, at least for the people who, live in the countries for which it's lawful. I still don't love that because I think it's fragmented, you have your, like, balkanized personal, country internet, which isn't really a great thing. It's supposed to be a global network where we can all communicate with each other and get information. but at the very least, sites should be able to operate in their particular jurisdiction without kind of a, "I got you," you know? "Ha ha," you know, with by accessing it with a VPN. another concern I have is just, like, to more effectively block users from certain countries, I think is a bit of a surveillance nightmare. and we've seen this in other contexts, like with, gambling apps or whatever, to try to figure out and make sure that the users are in a jurisdiction where online gambling is permitted. There's a lot of location tracking, um, providing your identification. So it's just, techniques that really interfere with people's privacy, people's anonymity, and, can put the users or visitors, posters to a site in some jeopardy because this identifying information about them is being collected. And I think that there's this real push, tracking IP addresses or more, in order to make these geo bans more effective, and that it's a real worry for me as a surveillance lawyer that that's also, like, a side effect that we're heading down the road towards.

Mike Masnick 31:13

Yeah, I, I think it's a real issue. I mean, it, it's funny to me, I've talked about this before, but, Techdirt started in 1997, so we're 29 years in, which is insane. But

Jennifer Granick 31:24

You should be very proud.

Mike Masnick 31:26

Wait till we get to 30, okay? But, but, but one of the things that, that was, like, a common theme in our very first year was specifically this issue of, jurisdiction, that, pre-internet, jurisdiction was much easier. I wouldn't say it was easy, but it was much easier to determine because it was where you were, where the thing happened. And as soon as the internet came about and suddenly just, you know, wiped out borders in terms of what was available where, the jurisdiction questions were, like, one of the biggest things. And we're now 29 years later, and we still haven't figured that out. And we're still sort of sorting through what does all that mean, and we still don't seem to have really good answers for, like, how do you handle global internet with different local laws? And, it's fascinating to me that this issue so many years later, like, there are attempts, and as you said, like, some of the, fallout is that we have a really fractured internet in a lot of ways, which I, I don't think is a good thing, or that we have a lot of surveillance, which also I don't think is a good thing. But it still feels like we're still struggling with this question of, you know, how do you actually handle legal jurisdiction on a global internet? And, Yeah, it's weird.

Jennifer Granick 32:37

It is weird. I mean, you know, my first year of law school, you do civil procedure and you go over jurisdiction, and it's like a big yawn. Um, I think I can say probably most people felt that way. And then some of the earliest cases I did, you know, I did one case which was about a website that was a CNN spoof website, and the client, just basically lived in Massachusetts or something like that. Um, and CNN is, was headquartered in Georgia, and they sued him in Georgia, and he didn't have anything in Georgia, but the court was like: Well, you targeted CNN, and CNN is in Ge- you know, how can it be in something? But CNN is in Georgia, so we had this big jurisdictional battle, and they're like: No, you can be sued here. or like in the Lori Drew MySpace case, you have somebody who is, doing something that's not illegal, under state law, but they can be, brought into federal court in a different place because, the conduct happened over MySpace, and MySpace is located in a totally different jurisdiction, which allows, you know, the thing there I think is it allows, prosecutors to kind of pick and choose a little bit, so you have the most, aggressive prosecutors can kind of pick cases, you know, from, things that people do around the country. And now you have that with countries, like around the world, where you can have the most aggressive regulator can kind of pluck somebody out and be like: Yes, you guys are the ones that we're gonna go after. and you know, I mean, I, I think y- I have to recognize as a lawyer, like nowadays, I don't think the law is the most important thing that decides that. I think it's the assets. You know? And it's like if you have people or you have property in the country, then you're subject to their jurisdiction. And I often, you know, had had people come to me and be like: What's the rules here about this? I'm like: Well, do you have people on the ground there? They're like: Yeah. I'm like: Do you wanna let those people go to prison? "No." Okay, well then they have jurisdiction over you. So, so, you know, if you're gonna do business someplace, gonna h- have that trouble.

Mike Masnick 34:39

I was gonna say that's also why certain countries are now putting in place what I refer to as hostage laws, which is requiring if you wanna operate in this country, you have to have an employee on the ground, which, you know, their only real role is to be threatened to be put in jail if

Jennifer Granick 34:54

know.

Mike Masnick 34:55

uh, which is sort of horrifying in some ways. But it, it, kinda

Jennifer Granick 34:58

I would love to see the job posting for that. And then also, like, what's the interview like? You know? Do you, do you like gruel? How many days can you survive on gruel?

Mike Masnick 35:11

Yeah. Oh my God. Um, I mean, I'm sure they have some sort... it's like when you work in the CIA, you have a cover story. I assume that there's some sort of job description which is not technically just be here to go to prison. But I, I don't know. I don't know. I mean, what, like, given that, Sanction Suicide put in place this geo-block, and it appears they went to sort of pretty great lengths to actually try and make the geo-block effective. what else would you think that a site like that should do to say like, "Look, we're not targeting your jurisdiction at all." Like, is there anything else that they can do?

Jennifer Granick 35:45

I mean, you know, I mentioned some of the more intensive surveillance things that you could do, you know, in terms of requiring users to prove location basically before they're a-accessing the site. Um, and I think that that can be some pretty, risky and dangerous information collection. But I don't know that, I'm sure like technically, and I'm sure that there are tons of, cryptographers who are working on ways where you can have like an attestation like this person is not in this country, and have that be something you can rely on without collecting all this other information. And I hope that tools like that will be developed so that if we need to have these things, we can have these things without it also being, and this user is Jennifer Granick, and she is, you know, all that other stuff.

Mike Masnick 36:35

Yeah. All right, well, let us move on to our more lightning round set of stories. Uh, and this one, there's a nice sort of, segue. this is a story from Rest of World, talking about how various African countries are trying to figure out their AI policy, and one of the things that, multiple countries are recognizing is how reliant they are on US-based companies and US-based infrastructure. And suddenly these legal questions of, well, how does the law here apply to companies based there, are having a really big impact in, in terms of how these countries are thinking about their AI policy. And one of the things that many of these countries in this article, they, they cover Nigeria, Egypt, Kenya, South Africa. Though the aside on South Africa is that their AI policy had to be withdrawn last month when people discovered, a researcher actually discovered that the citations in the policy on how to deal with AI appear to have been hallucinated by AI. That will be revisited

Jennifer Granick 37:39

can't make this stuff up. That's gotta, that's gotta go in your novel.

Mike Masnick 37:44

Yeah, yeah, something like that. Definitely should.

Jennifer Granick 37:48

Make a note.

Mike Masnick 37:49

yeah. but you know, what's, what's interesting is, these countries are suddenly sort of trying to figure out how to deal with that, and one of the things that many of them are pushing for within these policies, you know, whether or not it's realized is still to be determined, is that there needs to be more local sovereignty, data sovereignty. Data should stay within these countries, and they, even if they're doing agreements with American companies, that there needs to be some level of control over the data and keeping it local within the countries, which then raises a whole bunch of other issues. And we've had this in, in other data localization context where if the data is local, that also means it may be accessible. So if a government wants to do surveillance on you, a requirement to keep it local you can say is to protect privacy, but it also may give access to the police or whoever else. So I'm sort of curious, what was your take on, on this particular story about the African countries and trying to figure out how to deal with American AI infrastructure?

Jennifer Granick 38:48

Yeah. I mean, you know, sovereignty sounds great, and I do think that it makes sense that countries want to be able to, have technology accord with their own laws and values and that they don't necessarily want a big for-profit American corporations deciding what's good and what's bad for people. And I agree with that. You know, I think that, when you have the rules and the, constraints about what a product like AI can do that are decided by for-profit companies, it's gonna be a certain thing, and there are gonna be other values that go by the wayside. Like this whole discussion of AI safety as being like the primary motivation or, you know, the primary like, value added by a company. It's when you have such a highly competitive industry, nobody's gonna slow down for safety. It's just obviously, it was never true. Obviously never true from the, from the beginning. Um, and I think that it makes perfect sense that countries would want to, do something, different. And I think this is important because for me, one of the issues here is like, AI isn't just information or something somebody says. AI is, is something that it does things, and that functionality I think can often and often should be regulated. So that makes a lot of sense to me. but you know, we, as we talked about before with, the balkanization of the internet and with how, you get the lowest common denominator, of regulation when any country is the decider about what, a tool can be used for, what people can say or do with it. this is the issue I think we're gonna have here, with the idea that, you know, we have sovereignty over a particular, tool. it is another one of these, trade-offs, yeah, just another one of these trade-offs

Mike Masnick 40:40

No, it, it's tricky. I also think, I mean, there's another trade-off within what you were talking about, which, uh, is trickier than I think most people recognize, which is you talked about the difference between sort of speech and conduct, which is sort of usually the dividing line between, you know, speech is more protected, against regulation, versus conduct. But it's not as clear where that border is, especially with, tools like software and AI, the switch from what is speech to what is actually conduct, it would be nice if there was a clear dividing line. I'm just not convinced there really is.

Jennifer Granick 41:14

No, there isn't. It keeps the, it keeps the speech lawyers occupied litigating what is that, what is that line. and you know, I mean, we're dealing with that you know, I mean, I don't wanna take us down a different but favorite road. We deal with that in the context of, Section 230 between what is, the activity on a platform and what is speech on the platform. What is when the platform, chooses what information or prioritizes particular information for us to see, is that like, functionality of the platform or is that the platform's speech? Is it the third party's speech? And we filed when I was at the ACLU, we filed a brief about this in the, Gonzalez versus, Google case discussing, what is speech in terms of how the, platform operates to prioritize particular content. But we tried to distinguish that in the brief from things that the, company does to prioritize content when what it's doing is only showing, men the most lucrative jobs or only showing white people these set of houses or, you know, sort of a, online but still discrimination that would be illegal offline. And so how do you think about, the difference between here's what you, Jennifer, might like to see and here's what you white people deserve to have in your education and housing and credit, portfolio?

Mike Masnick 42:45

Yeah, I, we don't have time to go deep into this, but yes, it is like all, with all of these things, right? It is a really... You know, there are things that are clearly problematic and where there are laws against them, but you have to be very careful wading into the areas where, you know, it's easy to say, "Well, this is conduct, this is speech," but the lines are very, very blurry, and that, that's where, uh, there's a lot of litigation and keeps lawyers like you plenty busy.

Jennifer Granick 43:12

Yeah, totally. And I can understand why different countries wanna have that, you know, idea too. Like, we want tools to operate in the benefit of our citizens, and so here's how we want it to be. Of course, as I'm saying it, it's like the most optimistic view of sovereignty because we also know that not all governments are like, "Well, let's-- what's good for our citizens?" A lot of governments are like, "What's good for me? Can I use this deepfakes takedown law in order to get bad stuff about me, the president, taken offline?" And so, you know, not-- we can't trust that everyone is really c- every government is really concerned about free speech and their citizens. I don't know why that was the example

Mike Masnick 43:54

was going to say that was a fantastic segue to our next story. So d- which is that, yes, the Take It Down Act is now in effect. Do you wanna talk about that?

Jennifer Granick 44:05

Sure. I mean, this is a law that was signed about a year ago and is now fully in effect. The Take It Down Act was, intended to address the, um, problem with non-consensual intimate imagery or NCII. and, this includes, not just, images of real people, but also, what we call deepfakes or AI-generated, images. I think deepfakes suggests we can't tell the difference between them and real, but they're really just fakes. So I don't know how deep it is or whatever, but it's called deepfakes. And the law sets up a notice and takedown, process where if a platform gets notification that there is some NCII on it, then there's a 48-hour turnaround to take the, uh, information offline. And we know from, in other notice and takedown regimes like the Digital Millennium Copyright Act, that these regimes tend to create a, over-incentive to take things down even if they're lawful. The company doesn't know. It doesn't have time to, ask questions or... and so these, regimes can be weaponized to take down information that maybe has nothing to do with NCII. and so not only do you have a problem that maybe the law is overbroad as to what should be taken down, that's a problem, but also that in practice, the takedowns will be broader even than that interpretation of the law. and just recently, the chair of the FTC, wrote to a bunch of the large platforms, large and medium platforms, saying, "You know, we're gonna start enforcing this, so you guys better be doing it. There are huge fines at stake." but there's, like, explicit statements by President Trump that he plans to use this law to try to get, critiques, and negative information about himself, taken offline. and that's just so interesting because I think there's just a very, very limited amount of NCII about President Trump. I mean, I don't know. Maybe I just run in the wrong circles. Um, so it seems like,

Mike Masnick 46:07

the, the, the example, and we, we had an article on Techdirt about this last year, was that, South Park in its last season often had, images of a, AI-generated video of a naked Donald Trump. and so the question was, would that violate the Take It Down Act? When it's broadcast on TV, it's protected, but when it's on the internet, and their videos have been posted on the internet, does that suddenly trigger an issue that Donald Trump could use the Take It Down Act to demand that YouTube take down, say, South Park videos?

Jennifer Granick 46:43

So A, God bless South Park. B, obviously I underestimated the market for Trump NCII. And then, you know, C, I think this is something, you know, at the ACLU we really worried about when the bill was, introduced, which is there are really not safeguards for political satire or critique or, you know, that sort of protected speech. And there's no thing here like you have to necessarily, like, believe it is a video of a real person, and so that, leaves open to this concern, that political critique can be, targeted under this law, and failure to take it down can result in real liability.

Mike Masnick 47:26

the related thing, I mean, you mentioned the FTC has been very vocal in talking about this. it should be noted that the chair of the FTC, Andrew Ferguson, has been pretty open about choosing his targets based on partisanship, and he has opened a bunch of investigations that were clearly done to, suppress speech and create chilling effects from those who are critical of Donald Trump. There was a whole investigation into media matters, and more recently there was the invest- not investigation, but there were, civil investigative demands, which are subpoenas into NewsGuard, which was a company which was run by a, a, a fairly conservative guy. But, Newsmax became very upset because they were ranked low for trustworthiness in NewsGuard, and so suddenly the FTC started investigating NewsGuard, and it was clearly just a partisan free speech suppression kind of situation. So the fact that the FTC gets to enforce this law, I think it's going to be really worth watching who it is they go after and what reasons, because lots of people would argue that, what Grok was doing on X with its AI image generation, could have violated some aspects of the Take It Down law. and so would a Trump FTC go after X for violating this law when Elon Musk and Donald Trump are on good terms? And that's gonna be something worth watching.

Jennifer Granick 48:53

I think, you know, theoretically we kind of pose or I kind of posed the question of do you want this for-profit corporation to regulate or do you want this government, with their own sort of censorship and politics and whatever to, to govern? And I think that that kind of philosophical, debate has to actually take place in the context of what are we really seeing, which is, here in the United States, we have a government that has been weaponized against ideological and political opposition. And, it's kind of great having been a First Amendment lawyer for so long that we can ni- finally say to people, "See, this is what we told you that you have to be worried about, and this is why we pushed for all those rules that you didn't like because, you know, you thought the government was gonna be a good actor." And in theory, sure, that's nice. They're helping the public. But in practicality, this is what happened, and we turned on a dime. You know, historically, our government's turned on a dime. And so I think absolutely right when you think about these things, you can't really think about it anymore in the abstract. You have to think about it as like, look, this is playing out. Our worst fears, our worst nightmares are playing out in reality here in the United States of America. And so, you know, this is what we're seeing. And so having empowered the government to make these decisions we're reaping what we've sown.

Mike Masnick 50:17

Yeah. Yeah. So that's definitely one that we'll be following. Our final story, we are running low on time, so we'll make this one quick. we-- for the most part, I mean, I mentioned here and there, we have avoided talking about X and Elon Musk this week, except for this last story, which again will be really quick. But X has changed its policies that, you know, Elon Musk took over the site and promised to bring free speech back, and it was going to be the, free speech platform, the center of the world for speech and all this stuff. And apparently, they have now put in place rules that, if you really wanna speak, you kinda have to pay. So there are limits on how much you can now tweet before you have to pay. So you can do 50 posts a day or 200 replies a day, and if you d- haven't paid and you don't have a blue check mark, you can not go above that. Now, some people will argue, and you might argue, that 50 posts is, that's a, it's a lot of posts. 200 replies is, is a lot of replies. That should work for most people, and probably does work for most people. But I could definitely see, you know, people who are commenting on sports or news or whatever, if there's like a breaking story, I could see people easily surpassing that and then being pushed to, have to pay for it, which is a very different social media experience than I think most people have these days. and so I sort of wonder what impact that's gonna have. What, what was your take on this story?

Jennifer Granick 51:37

I think it's kind of an arbitrary line l- drawn to try to, you know, make a distinction between, regular users and commercial users maybe, and sort of like this is how we can make money. to me, it made me think about virality and kind of the benefits and dangers of virality for messages more generally and how, you know, other companies have tried to limit, especially when you don't know what the message is, try to limit virality so that, like, you don't have a message or a group that's basically fomenting mob violence or something like that. I think in either way, the company is just kinda trying to draw a line between, like, what is something people really should know and is a big enough group to have that important message get out versus something that's probably mob violence. You know? What is something that's, like, what a regular user's level of interactions on X is versus something that's spam or a commercial account that's taking advantage. And so it's just an example of how do we draw lines?

Mike Masnick 52:36

Yeah, and it, it is fairly arbitrary and there's, you know, it's not entirely clear are they doing this just to try and get more people to sign up and pay? Is it a revenue generation play or is it a anti-spam tool or is it a combination of both? And then did they do any testing, investigations into whether or not this was the right levels? There are all of these choices that are made. I don't have much faith that there was much thought put into this just because I don't think X does things with particularly a great deal of thought. and it'll be interesting to see, if we start to see people bumping up against these limits and how they feel about it, as time goes on. But it's, it's interesting to see 'cause we sort of consider social media generally historically to be this kind of thing that you can, do as much as you want, you know, for better or for worse. But, but now there are limits in place. Anyways, we are basically out of time, but Jennifer, thank you so much for jumping into the guest hosting seat. This was really fun, really interesting discussion. I hope that listeners really enjoyed it. I certainly

Jennifer Granick 53:36

I did. too.

Mike Masnick 53:36

And, thank you everyone for listening as well. And, we'll be back next week and Ben will be back from his paternity leave, and we'll have lots of exciting news then. So thanks again.

Jennifer Granick 53:46

Thanks, Mike

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