A Google executive tells Axios the company is working on a licensing program to pay publishers for “high quality” news content, Indiana’s Supreme Court rules on if police can compel unlocking a smartphone, and Sony launches a PlayStation bug bounty program.

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What Safe Harbor is and isn’t and what Section 230 does and does not protect.

Featuring Tom Merritt.

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Episode Script
Safe Harbor

Free pass

Government subsidy

CDA 230

Are you confused?

Don’t be.

Let’s help you Know a Little more about Safe Harbor.

Let’s start with the legal concept of a Safe Harbor. It’s a safety net to try to prevent misapplication of a rule.

A common example is a rule against reckless driving. You might declare a safe harbor for anyone driving less than 10 miles an hour. If you’re going that slow it’s not reckless, you can stop evaluating it.

For the internet, the concept of safe harbor revolves around who is liable for what’s posted online. If I run a blog and someone posts a comment on my blog that is libelous, you might think that the commenter is responsible for what they posted but the law may see my blog as the “publisher” of that comment and hole me responsible. Safe Harbor is the idea that given certain conditions you can host comments from other people and you are not held liable for this postings. In the US that principle is enshrined in the Communications Decency Act Section 230 of 1996.

So if you hear Safe Harbor and CDA 230 used interchangeably, that’s why.

An early example is Smith vs California decided by the Supreme Court in 1959. In that case a bookstore-owner in Los Angeles was prosecuted for having an obscene book in his store. The Supreme Court ruled that a bookstore is a distributor who can’t be excited to review every bit of content before it is sold. So the bookstore owner should only be liable if they knew or should have known that what they were distributing was illegal. The court said that without this protection, a safe harbor if you will, bookstores would limit their offering sot books they had inspected which would limit access to books that were not illegal.

The Safe Harbor discussion as it applies to the internet starts in the early 1990s with legal cases against CompuServe in 1991 and Prodigy in 1995.

By that time the case law was pretty clear. If you were a publisher, you were responsible for the content you published no matter who wrote it. If you were a distributor, you were not responsible for things written in the stuff you distributed. The publisher was.

CompuServe had a policy of not trying to moderate content. So in Chubby Inc vs Compuserve the court deemed Compuserve a distributor and therefore immune from liability.

However Prodigy employed moderators to validate content. So in Stratton Oakmont, Inc. v. Prodigy Services Co. Prodigy was deemed a publisher, since they had editorial control over what was published, and therefore liable for comments from its users.

If left as is this would encourage internet companies NOT to moderate content.

Congress at the time was preparing the Communications Decency Act, part of the Telecommunications Act of 1996. This act would make knowingly sending indecent or obscene material to minors a criminal offense.

If enacted this law would require internet companies to block indecent or obscene content and therefore make them publishers under the Stratton law and thus make them responsible for ALL content on their platform.

Companies would have to vet every comment and every post.

That led two House Representatives, Republican Chris Cox and Democrat Ron Wyden, to write a section of the CDA that allowed internet companies to moderate content without becoming publishers.

It ended up being twenty-six words long

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

That became Section 230 of Title 47 often called Section 230 of the CDA.

Oddly the rest of the CDA no longer exists. The anti-indecency portion that spurred Section 230’s creation was challenged by the ACLU and the Supreme Court rules in 1997 that the anti-indecency sections were unconstitutional, but left section 230 standing.

So the cause for the need of section 230 was then removed but left 230 on its own.

Of course Section 230 was challenged as well in 1997 in Zeran vs. AOL. An AOL user sued AOL for failing to remove, in a timely manner, libelous ads posted by other AOL users that connected his home number to the Oklahoma City bombing. In its decision, the United States Court of Appeals for the Fourth Circuit wrote “It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect.”

It also wrote that Section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.”

This ended up as a stricter protection for a distributor than the 1959 case. Instead of having to take it down once you know about it. Internet services were given a broader shield.

And that became the principle justification for CDA 230.

Now the section itself doesn’t give internet companies a free pass.

For a court to determine that you qualify for the immunity of Section 230 you must meet three criteria.

First the company must be a provider or user of an interactive computer service. CDA 230 does not apply to people writing letters. That one is pretty straightforward.

Also you have to be accused of being the publisher or speaker of the harmful information. The one’s pretty straightforward too. You can’t blame Facebook for something written on Twitter.

The third one is the key. You must not be the information content provider of the harmful information. Twitter is responsible for its own posts.

There are also other exceptions. Companies are not immune from federal criminal liability and intellectual property claims. The intellectual property claims part was codified int he Digital Millennium Copyright Act of 1998. That’s a whole separate topic.

In addition in April 2018, Congress passed a law exempting service providers from Section 230 immunity if they knowingly facilitate or support sex trafficking.

In recent years other exemptions to section 230 have been proposed. Some want Section 230 to require social networks deal with propaganda, fake news, terrorism or hate speech. Some want section 230 to only apply to politically neutral platforms.

This last argues that social networks can moderate under 230 to remove content from certain points of view. Since this leads to a platform having a political perspective, it should be considered a publisher.

The bill that has got the most momentum recently is the Eliminating Abusive and Rampant Neglect of Interactive Technologies or EARN IT act, sponsored by republican senators Lindsey Graham and Josh Hawley and Democrat Senators Dianne Feinstein and Richard Blumenthal.

The bill would create 15-m,ember government commission made up of administration officials and industry experts to establish best practices for the detection and reporting of child exploitation materials. Internet service that did not follow the practices recommended by the commission risked losing CDA 230 immunity. That bill is-opposed by the Internet Association among others for fear that the commission might recommend backdoors to encryption. The Senators sponsoring the bill deny any intention to add back doors.

To sum up. Section 230 was meant to encourage internet companies to allow open communication on their platforms by freeing them from liability for what other people post. This led to forums, chat rooms, social networks and more.

This is because without immunity the scale of the task of moderation would be too tall to provide protection from that liability. So to encourage at least some moderation and open platforms Section 230 was needed.

But the scale problem didn’t go away. And that has led to illegal content flourishing both for content not protected by 230 like intellectual property infringement and content that is protected but companies want to reduce because of public pressure, like child pornography.

What happens next is anybody’s guess.
But I hope this helps you understand what Safe Harbor is and isn’t and what Section 230 does and does not protect.

In other words I hope now you feel like you Know a Little More about Safe Harbor.

A brief history and explanation of ARM processors.

Featuring Tom Merritt.

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Episode Script
Qualcomm uses an ARM processor.

But isn’t Qualcomm’s processor called a Snapdragon?

Is a Snapdragon an ARM processor?

And doesn’t iPhone have ARM?

What does ARM make?

Confused? Don’t be.

Let’s help you Know a Little more about ARM processors

I’m going to try to give you a good top level overview. ARM gets thrown around alongside chipmakers like AMD and INtel but it’s a little different. Intel and AMD design chips they sell under their own names. ARM only design chips.
A lot of folks don’t realize this. Aome do. But I thought I would dig into what ARM is to help you clarify that. I’m not going to get into chip architecture and instruction sets. You only need to know what those things are in a top level way
Chip architecture is the building of the chip. Instruction sets are the instructions that run on the chips and tell the chips how to work based on the parts they have. That’s all you need to know to understand what we’re talking about today.
And while we discuss this, I’d like you to keep this thought in mind: “What separates ARM from a patent troll?” I’m not saying they are a troll. In fact, I do not think they are. But I’m going to circle back to that question. Just keep that question in the back of your mind. I think it’s a very important example that can help shape the line between proper and improper intellectual property protection.
ARM Holdings is the company that creates the reduced instruction set computing, or RISC architectures for computer processors. It also designs cores that implement the instruction set. So you’ve got the RISC instruction set and you got the core that can implement the instruction set. And important to note that a company can license just the instruction set or can license the design of the core that runs the instruction set itself. ARM licenses these designs to other companies who can build the products. I’m going to repeat this a lot. It doesn’t build any products itself.
Let’s start by talking about ARM’s history. Because through it’s history you’ll see how it evolved into the niche it occupies now. ARM grew out of the famous UK company Acorn Computers, the folks who made the legendary BBC Micro. After the success of the Micro, the folks at Acorn were working on the Acorn business computer but the chips they had been using for the micro just weren’t powerful enough. So they go out and take a look around. They visit places to see what options they have. And they determine they probably are going to have to design this thing themselves
So engineer Sophie Wilson looked at everything they had found and said, I could do that. And she developed an instruction set, THE instruction set. I mean, it’s evolved over time, don’t get me wrong, but Sophie Wilson is the one who developed the instruction set that would end up being the linchpin upon which ARM is built. And then they implemented that instruction set in hardware with Sophie Wilson and another engineer named Steve Furber leading the design of the acorn RISC machine or A-R-M or ARM. Now ARM doesn’t stand for that anymore, but we’ll get to that. The first silicon samples of the ACorn RISC Machine were made by VLSI. Yeah, even then they they farmed it out to VLSI.
The first chips were received and successfully tested on April 26 1985. It was first used as a secondary processor in the BBC Micro. The first ARM-based computer, where the ARM-design was the principal processor was the Acorn Archimedes in 1987.
Well pretty soon Acorn started working with Apple on newer versions of the ARM core. And Apple said, this is a pretty cool idea. And VLSI thought it was a pretty cool idea. So in November 1990 Acorn spun out the ARM design team as a joint venture with VLSI and Apple.
Now, Apple and Acorn had a pretty competitive relationship throughout the 80s. So Apple said, We’d love to be part of this joint project. We would not love it not to be called Acorn RISC Machines. Could we call it something else? So they named the company Advanced RISC Machines Limited, which in 1998 just became ARM limited.
Let’s jump to 1992 when the ARM six came out and was used in the Apple Newton. Turns out that’s why Apple was interested in ARM. They had this idea! It’s an idea that didn’t really take off, but look what spun out of the apple Newton? So many things including ARM.
The ARM design got famous for the low power usage of its chip designs, making it a favorite for PDAs after the Newton, as well as eventually mobile phones, and ARM went public with an IPO in 1998. So ARM is going along making designs for chips used in mobile devices and as smart phones take off, ARM benefits. And exists as its own company until September 5, 2016 when Softbank acquired it.
So what does ARM sell? ARM does not sell tangible products. It licenses its cores and its instruction sets. IP cores are used to create microcontrollers CPUs systems on a chip. The ARM core is combined with other parts to produce a complete device that can be made in fabs, in the semiconductor fabrication plants. Now companies can license arm technology into their own SOC design their own system on a chip design, with other components like GPUs, radio, baseboards, etc. Radio baseboards are needed for phones to communicate with the cellular network.
So they can license that ARM design in a few ways
They can use it in their own system on a chip design
OR they can license full chip sets from ARM
OR a company can also design a chip and can modify the ARM design a little.
So when you hear it’s an ARM Chip, it’s never actually an ARM chip. The chip’s design maybe wholly ARM. The design could be ARM in combination with other things on the system. Or the design could be ARM modified. That could mean it was tweaked a little, maybe some optimizations, some extensions. Or more radically with something called the ARM Cortex license that lets companies make actual modifications to the design. When that last happens, ARM promises not to share those modifications with other companies.
So for instance Qualcomm, with the Snapdragon licenses the built on ARM Cortex license. So Qualcomm is like kind of designing its chip in collaboration with ARM, roughly speaking very roughly speaking.
Now there’s also the instruction set.
Companies can also get an architectural license where they build their own CPU and license only the instruction set. So the company is saying, we want to just build the CPU. I’m sure there’s complications about licensing patents in there and things like that but at base they’re not going to license the chip’s design- not even with modifications– just the instructions.
This is a company that says we like the instruction set but we want to design the hardware ourselves and we don’t want ARM even knowing about what we’re doing. We’re very secretive. In other words, Apple. Apple does this. The arm instructions run the chip that Apple designs for its mobile devices. And it’s not just Apple. Broadcom does this. Nvidia. Samsung even Qualcomm does this for some of its chips. They all take part in that architectural license.
And it’s worth mentioning that ARM doesn’t just do the CPUs and systems on a chip they also do a GPU. ARM’s Mali GPU can be licensed. There’s even ARM supercomputer that is bought by Cray and Cray offers it in their supercomputers. There’s a few others in there.
So we’re back around, I think we have an understanding of what ARM does they create designs, instruction sets, hardware designs, and then they tell people, okay, we won’t sue you for patent infringement if you license this technology from us. And patents, you know, they expire at different rates around the world but but generally speaking, computer world moves fast enough that the old designs aren’t that useful for ARM to make money off of, so they’re not out there, asking for longer and longer extensions. What they’re doing is creating newer and newer versions of ARM. That’s why you’ll hear announcements about new ARM processors.
So let’s get back to that questions from earlier about what separates ARM from being a patent troll? it doesn’t make anything. You’ve heard me repeat this now a million times. And that’s often the big criticism of patent trolls. They just hold a bunch of patents and make people pay to use them. Licensing right? The difference is ARM contributes to the ecosystem. It continually develops new technologies, even if it doesn’t build them. And it works with its partners. It doesn’t say we have a big pile of papers and you can pay to make sure that we don’t use those papers in a court case against you. ARM says, we’ll let you use the technology or we’ll work with you to modify it together, whatever you want, so they’re active in doing this. It’s not just collecting rent, it continues to build new IP and it has no need to continue to protect the old as the new becomes much more valuable and to me I’m not saying ARM is perfect, there are problems, and there are disputes. But this is this is an example of what intellectual property should be doing creating a company that actively provides value to the ecosystem through its ideas. That’s really what arm is selling. ARM is selling ideas, but it’s doing it in a way that people find those ideas valuable and worth paying for. And the protection of patents gives it the shelter to do that without preventing their innovations from ever being used again. You know, once an ARM patent expires, it’s probably too old to make a lot of money off of it anymore, but it’s something that people can look at and go Okay, now we can use that freely as a basis for our own innovations.
I think this is interesting. The most successful chip company, certainly in mobile, isn’t a chip company. It’s an intellectual property company. And we often kind of break things down into, you either need to protect your intellectual property forever– that’s the copyright debate, especially in the United States, or things have to be free!
But a lot of folks think intellectual property should be used to encourage the creation and development of the arts and sciences. There are problems with abuse of patents Don’t get me wrong, but ARM shows there is a way to do it largely right? In a way that that does make the ecosystem stronger and better for everybody. I hope this was of interest to you. It was interest of me, especially some of that history about where ARM came from.
In other words I hope now you feel like you Know a Little More about ARM.

A black Detroit man spent 30 hours in custody after facial recognition software mistakenly matched him with a shoplifting suspect. How flawed is AI recognition and should it be used in law enforcement?

Starring Tom Merritt, Sarah Lane, Scott Johnson, Roger Chang, Amos, Joe

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Microsoft Defender ATP for Android launches in preview, Amazon may be building a live TV service and Facebook winds down the Oculus Go.

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Patrick Beja weighs in on Apple’s WWDC announcements.

Starring Tom Merritt, Sarah Lane, Patrick Beja, Roger Chang, Amos

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Microsoft shuts down Mixer, Facebook acquires Ready At Dawn Studios, Segway winds down PT production.

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