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Supreme Court Justice Clarence Thomas flaunted a dangerous ignorance regarding matters digital in an opinion published today. In attempting to explain the legal difficulties of social media platforms, particularly those arising from Twitter’s ban of Trump, he makes an ill-informed, bordering on bizarre, argument as to why such companies may need their First Amendment rights curtailed.
There are several points on which Thomas seems to willfully misconstrue or misunderstand the issues.
The first is in his characterization of Trump’s use of Twitter. You may remember that several people sued after being blocked by Trump, alleging that his use of the platform amounted to creating a “public forum” in a legal sense, meaning it was unlawful to exclude anyone from it for political reasons. (The case, as it happens, was rendered moot after its appeal and dismissed by the court except as a Thomas’s temporary soapbox.)
“But Mr. Trump, it turned out, had only limited control of the account; Twitter has permanently removed the account from the platform,” writes Thomas. “[I]t seems rather odd to say something is a government forum when a private company has unrestricted authority to do away with it.”
Does it? Does it seem odd? Because a few paragraphs later, he uses the example of a government agency using a conference room in a hotel to hold a public hearing. They can’t kick people out for voicing their political opinions, certainly, because the room is a de facto public forum. But if someone is loud and disruptive, they can ask hotel security to remove that person, because the room is de jure a privately owned space.
Yet the obvious third example, and the one clearly most relevant to the situation at hand, is skipped. What if it is the government representatives who are being loud and disruptive, to the point where the hotel must make the choice whether to remove them?
It says something that this scenario, so remarkably close a metaphor for what actually happened, is not considered. Perhaps it casts the ostensibly “odd” situation and actors in too clear a light, for Thomas’s other arguments suggest he is not for clarity here but for muddying the waters ahead of a partisan knife fight over free speech.
In his best “I’m not saying, I’m just saying” tone, Thomas presents his reasoning why, if the problem is that these platforms have too much power over free speech, then historically there just happen to be some legal options to limit that power.
Thomas argues first, and worst, that platforms like Facebook and Google may amount to “common carriers,” a term that goes back centuries to actual carriers of cargo, but which is now a common legal concept that refers to services that act as simple distribution – “bound to serve all customers alike, without discrimination.” A telephone company is the most common example, in that it cannot and does not choose what connections it makes, nor what conversations happen over those connections – it moves electric signals from one phone to another.
But as he notes at the outset of his commentary, “applying old doctrines to new digital platforms is rarely straightforward.” And Thomas’s method of doing so is spurious.
“Though digital instead of physical, they are at bottom communications networks, and they ‘carry’ information from one user to another,” he says, and equates telephone companies laying cable with companies like Google laying “information infrastructure that can be controlled in much the same way.”
Now, this is certainly wrong. So wrong in so many ways that it’s hard to know where to start and when to stop.
The idea that companies like Facebook and Google are equivalent to telephone lines is such a reach that it seems almost like a joke. These are companies that have built entire business empires by adding enormous amounts of storage, processing, analysis, and other services on top of the element of pure communication. One might as easily suggest that because computers are just a simple piece of hardware that moves data around, that Apple is a common carrier as well. It’s really not so far a logical leap!
There’s no real need to get into the technical and legal reasons why this opinion is wrong, however, because these grounds have been covered so extensively over the years, particularly by the FCC — which the Supreme Court has deferred to as an expert agency on this matter. If Facebook were a common carrier (or telecommunications service), it would fall under the FCC’s jurisdiction — but it doesn’t, because it isn’t, and really, no one thinks it is. This has been supported over and over, by multiple FCCs and administrations, and the deferral is itself a Supreme Court precedent that has become doctrine.
In fact, and this is really the cherry on top, freshman Justice Kavanaugh in a truly stupefying legal opinion a few years ago argued so far in the other direction that it became wrong in a totally different way! It was Kavanaugh’s considered opinion that the bar for qualifying as a common carrier was actually so high that even broadband providers don’t qualify for it (This was all in service of taking down net neutrality, a saga we are in danger of resuming soon). As his erudite colleague Judge Srinivasan explained to him at the time, this approach too is embarrassingly wrong.
Looking at these two opinions, of two sitting conservative Supreme Court Justices, you may find the arguments strangely at odds, yet they are wrong after a common fashion.
Kavanaugh claims that broadband providers, the plainest form of digital common carrier conceivable, are in fact providing all kinds sophisticated services over and above their functionality as a pipe (they aren’t). Thomas claims that companies actually providing all kinds of sophisticated services are nothing more than pipes.
Simply stated, these men have no regard for the facts but have chosen the definition that best suits their political purposes: for Kavanaugh, thwarting a Democrat-led push for strong net neutrality rules; for Thomas, asserting control over social media companies perceived as having an anti-conservative bias.
The case Thomas uses for his sounding board on these topics was rightly rendered moot — Trump is no longer president and the account no longer exists — but he makes it clear that he regrets this extremely.
“As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms,” he concludes. “The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions. This petition, unfortunately, affords us no opportunity to confront them.”
Between the common carrier argument and questioning the form of Section 230 (of which in this article), Thomas’s hypotheticals break the seals on several legal avenues to restrict First Amendment rights of digital platforms, as well as legitimizing those (largely on one side of the political spectrum) who claim a grievance along these lines. (Slate legal commentator Mark Joseph Stern, who spotted the opinion early, goes further, calling Thomas’s argument a “paranoid Marxist delusion” and providing some other interesting context.)
This is not to say that social media and tech do not deserve scrutiny on any number of fronts — they exist in an alarming global vacuum of regulatory powers, and hardly anyone would suggest they have been entirely responsible with this freedom. But the arguments of Thomas and Kavanaugh stink of cynical partisan sophistry. This endorsement by Thomas amounts accomplishes nothing legally, but will provide valuable fuel for the bitter fires of contention — though they hardly needed it.
The highest court in the land has a lot to say about tech this week. The Supreme Court weighed in on Google’s long legal battle with Oracle on Monday, overturning a prior victory for the latter company that could have resulted in an $8 billion award.
In a 6-2 decision, the court ruled that Google didn’t break copyright laws when it incorporated pieces of Oracle’s Java software language into its own mobile operating system. Google copied Oracle’s code for Java APIs for Android, and the case kicked off a yearslong debate over the reuse of established APIs and copyright.
In 2018, a federal appeals court ruled that Google did in fact violate copyright law by using the APIs and that its implementation didn’t fall under fair use.
“In reviewing that decision, we assume, for argument’s sake, that the material was copyrightable. But we hold that the copying here at issue nonetheless constituted a fair use. Hence, Google’s copying did not violate the copyright law,” Justice Stephen Breyer wrote in the decision, which reverses Oracle’s previous win. Justices Samuel Alito and Clarence Thomas dissented.
“Google’s copying of the Java SE API, which included only those lines of code that were needed to allow programmers to put their accrued talents to work in a new and transformative program, was a fair use of that material as a matter of law,” Breyer wrote.
Google SVP of Global Affairs Kent Walker called the ruling, embedded below, a “big win for innovation, interoperability & computing.”
Among other technology trends accelerated by the Covid-19 pandemic, the use of contactless mobile payments boomed in 2020. According to a recent report by analyst firm eMarketer, in-store mobile payments usage grew 29% last year in the U.S., as the pandemic pushed consumers to swap out cash and credit cards for the presumably safer mobile payments option at point-of-sale.
Last year, 92.3 million U.S. consumers age 14 or older used proximity-based mobile payments at least one time during a 6-month period in 2020 — a figure the firm expects to grow to reach 101.2 million this year. And that usage is now on track to surpass half of all smartphone users by 2025, eMarketer forecasts.
Image Credits: eMarketer
Adoption last year was largest among younger consumers, including Gen Z and millennials. The former is expected to account for more than 4 million of the total 6.5 million new mobile wallet users per year from 2021 to 2025. Millennials, meanwhile, will continue to account for around 4 in 10 mobile wallet users.
Several industry reports had already noted the pandemic impacts on the mobile wallet industry in general, with one from earlier this month by finance and investment company Finaria estimating that the industry would grow 24% from last year to reach $2.4 trillion in 2021. It had said that while Asian markets and particularly China had been leading the way in mobile payments adoption, the U.S. had earlier struggled due to the slow rollout of mobile payment technologies by retail stores. But now, the U.S. has grown to become the second-largest market with $465.1 billion worth of mobile payment transactions, which will grow to $698 billion in 2023.
The pandemic had pushed lagging retailers to finally get on board with mobile payments. A mid-year survey published in 2020 by the National Retail Federation and Forrester, found that no-touch payments had increased for 69% of retailers, and that 67% now accept some form of contactless payment, including both mobile payments and contactless cards.
Image Credits: eMarketer
As a result of the industry changes, eMarketer reports that not only has mobile wallet usage increased, the average annual spend per user is increasing, as well. The firm predicts that figure will grow 23.6% from ~$1,973.70 in 2020 to $2,439.68 in 2021, and will surpass $3,000 by 2023.
In the U.S., Apple Pay remains the top mobile payment player with 43.9 million users in 2021, growing by 14.4 million between 2020 and 2025 — more than its competitors. Starbucks will remain the No. 2 player with 31.2 million users, followed by Google Pay, which will add 10.2 million users during that time frame. Samsung Pay, meanwhile, is seeing stagnant growth, adding just 2 million more users between 2020 and 2025.
Image Credits: eMarketer
Earlier this year, we covered the demise of flexible workspace operator Knotel.
The once high-flying startup had just announced it had filed for bankruptcy and that its assets were being acquired by investor and commercial real estate brokerage Newmark for a reported $70 million.
It was a hard fall for a company that just one year prior had been valued at $1.6 billion.
It was hard to pinpoint exactly the beginning of the end for Knotel, which had raised about $560 million in funding. Some said the pandemic was the nail in Knotel’s coffin, while others pointed out the proptech was already in trouble before the pandemic hit, facing a number of lawsuits and evictions.
Then this past weekend, Knotel co-founder Amol Sarva shed some more light on the situation — essentially publicly trashing Newmark, which had co-led the startup’s $70 million Series B in 2018.
In a letter that he emailed to an unspecified group of people, Sarva points out that the company had reached “nearly $400mm of run rate in early 2020, posted gross profit, and even kept more than 2/3 of revenue intact while doing everything we could to support customer continuity and work with landlord partners amicably.”
He went on to describe Newmark as “a stalking horse” that used bankruptcy to take control of Knotel with around $100 million of new capital. That process, he said, undermined important relationships and “hurt lots of customers and partners.”
“I’m so disappointed that this was the direction pressed. The process made clear to me that I would not choose to be part of the new owners’ way of moving forward,” Sarva continued.
He further criticized Newmark, saying the brokerage has hired “a group of Adam Neuman-era (sic) WeWork bros to lead the company forward.”
Newmark had not yet responded to a request for comment at the time of writing. While it’s safe to say that Sarva is bitter about the way things turned out, it would be interesting to know exactly at what point he came to this conclusion.
He did say that he’s heading back to the lab where Knotel was invented originally, as co-founder/CEO of Knote.
Spotify is opening up its personalized playlist, “On Repeat,” to advertising sponsorship. This playlist, launched in 2019 and featuring users’ favorite songs, is only the second personalized playlist on the music streaming service that’s being made available for sponsorship. Spotify’s flagship playlist, “Discover Weekly,” became the first in 2019.
The sponsorship is made possible through the company’s Sponsored Playlist ad product, which gives brands the ability to market to Spotify’s free users with audio, video and display ad messages across breaks, allowing the advertiser to own the experience “end-to-end,” the company says.
It also gives brands an opportunity to reach Spotify’s most engaged users.
When Spotify opened up “Discover Weekly” to sponsorship, for example, it noted that users who listened to this playlist streamed more than double those who didn’t. Similarly, “On Repeat” caters to Spotify’s more frequent users because of its focus on tracks users have played most often.
Since the launch of “On Repeat” in September 2019, Spotify says the playlist has reached 12 billion streams globally. Fans have also spent over 750 million hours listening to the playlist, where artists like Bad Bunny, The Weeknd, and Ariana Grande have topped the list for “most repeated” listens.
Though Spotify today offers its numerous owned and operated playlists for sponsorship, its personalized playlists have largely been off-limits — except for “Discover Weekly.” These are highly-valued properties, as Spotify directs users to stream collections powered by its algorithms, which Spotify organizes in its ever-expanding “Made for You” hub in its app. Here, users can jump in between “Discover Weekly,” and other collections organized by genre, artist, decade, and more — like new releases, favorites, suggestions, and more.
With the launch of sponsorship for “On Repeat,” brands across 30 global markets, including North America, Europe, Latin America and Asia-Pacific will be able to own another of Spotify’s largest personalized properties for a time.
The first U.S. advertiser to take advantage of the sponsorship is TurboTax, which cited the personalization elements and user engagement with the playlist among the reasons why the ad product made sense for them.
“Like music, taxes are not one size fits all. Every tax situation is unique and every individual’s needs are different,” said Cathleen Ryan, VP of Marketing for TurboTax, in a statement about the launch. “We’re using Spotify’s deep connection to its engaged listeners to get in front of consumers and show them that with TurboTax you can get the expertise you need on your terms. With Spotify, we’re able to get both reach and unique targeting that ensures the right audiences know about the tools, guidance and expertise that TurboTax offers,” she added.
