This Week in Google 802: A Sycophant in Your Pocket

Summary

This Week in Google 802: A Sycophant in Your Pocket – Podcast Summary

Release Date: January 16, 2025

Hosts:

• Leo Laporte
• Jeff Jarvis
• Paris Martineau

Guest:

• Kathy Gellis – Attorney and Supreme Court Court Observer

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1. Introduction and Guest Background

The episode begins with Leo Laporte introducing the regular hosts—Jeff Jarvis, Paris Martineau—and welcoming a special guest, Kathy Gellis. Kathy is notably present for two pivotal Supreme Court hearings: one concerning TikTok's potential shutdown and another addressing the constitutionality of age verification requirements for PornHub.

Notable Quote:
Leo Laporte (00:00): "Kathy Gellis was actually in the Supreme Court hearing the oral arguments on the TikTok case. She'll give us her report for that."

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2. Kathy Gellis’ Experience at the Supreme Court

Kathy shares her firsthand experience attending the Supreme Court hearings. Despite initial logistical challenges—such as almost not securing a chair—she underscores the profound impact of witnessing the Justices' human side, including their facial expressions and body language.

Notable Quote:
Kathy Gellis (04:40): "These are the human beings that are deciding everything."

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3. Overview of the TikTok Supreme Court Case

The core of the discussion revolves around the Supreme Court hearing on TikTok's bid to stay the enforcement of Congress's order requiring its divestment to a U.S.-owned entity or complete shutdown. Kathy explains that the case consolidated petitions from both TikTok and its user base, emphasizing the platform's precarious position.

Notable Quote:
Kathy Gellis (06:31): "TikTok's life hangs in the balance here, at least in the United States."

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4. First Amendment Arguments and Legal Scrutiny

Kathy delves into the First Amendment implications of the case, highlighting TikTok's stance on free speech against the government's national security concerns regarding data privacy ("slurpage"). She critiques the D.C. Circuit's application of rational basis scrutiny instead of the more stringent strict scrutiny, arguing that the latter would likely deem the law unconstitutional due to its broad and collateral impacts on free speech.

Notable Quote:
Kathy Gellis (09:54): "For strict scrutiny, the government must have a compelling reason and use the narrowest means possible."

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5. Judicial Perspectives and Future Implications

The conversation touches on the varied approaches of Supreme Court Justices, noting that while some may see validity in national security arguments, others recognize the profound First Amendment concerns. Kathy anticipates that the Court may issue stays to delay enforcement, allowing more time for legal deliberation.

Notable Quote:
Kathy Gellis (16:06): "One of the things that I put in the blog post was the potential for the court to press pause on the law."

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6. Implications for Other Platforms and Free Speech

Kathy extends the discussion to the broader implications of the TikTok case on other platforms like The Guardian, Financial Times, and BBC. She argues that stringent rulings could set dangerous precedents, allowing the government to influence editorial decisions across globally-owned platforms, thereby stifling free expression.

Notable Quote:
Kathy Gellis (12:21): "Congress can't decide the speech preference for the government without infringing on the First Amendment."

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7. Jawboning, DMCA, and Platform Censorship

Transitioning to the topic of "jawboning," Kathy explains how the government indirectly pressures platforms to censor content. Using the DMCA as an example, she illustrates how takedown notices can lead platforms to remove content without directly addressing the speaker, thus creating a form of indirect censorship.

Notable Quote:
Kathy Gellis (129:00): "The DMCA basically works as a form of jawboning because instead of going after somebody, we put pressure on the platforms to remove content."

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8. Future of Social Media Platforms and Censorship

The hosts discuss the fragmented landscape of social media platforms, debating the balance between innovation and regulation. Kathy emphasizes the need for multiple platforms to coexist to prevent monopolistic control, while also cautioning against the unchecked power of centralized entities to dictate speech.

Notable Quote:
Kathy Gellis (79:12): "We need to have multiple places to go to, and that's okay, but it's also important to prevent any single platform from having undue influence."

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9. Discussion on AI Recording Devices

Towards the episode's end, Leo introduces an AI device he's wearing that records conversations and generates daily summaries. Kathy raises concerns about privacy and the legal implications of such devices, especially in sensitive environments like courtrooms.

Notable Quote:
Kathy Gellis (87:20): "At the Supreme Court, you can't bring an electronic device of any kind into the courtroom."

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10. Conclusion and Final Thoughts

The episode wraps up with the hosts reflecting on the balance between technological progress and ethical considerations. Kathy advocates for responsible innovation, emphasizing the importance of anticipating and mitigating potential harms associated with new technologies.

Notable Quote:
Kathy Gellis (114:07): "We have to think about the consequences of our actions and weigh the potential harms against the benefits."

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Key Takeaways:

• First Amendment at Stake: The TikTok case serves as a critical examination of free speech rights versus national security concerns in the digital age.

• Judicial Scrutiny Levels: The application of strict scrutiny is crucial in cases involving substantial free speech implications to ensure laws are narrowly tailored.

• Jawboning and DMCA: Indirect government pressure on platforms via mechanisms like the DMCA poses significant First Amendment challenges.

• Platform Fragmentation: A diverse ecosystem of social media platforms is essential to safeguard free expression and prevent centralized censorship.

• Ethical Innovation: Balancing technological advancement with ethical responsibility is imperative to mitigate unintended societal harms.

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Notable Quotes Overview:

• Kathy Gellis on Humanizing Justices: "These are the human beings that are deciding everything." (04:40)

• First Amendment Focus: "It was entirely a First Amendment case." (08:25)

• Judicial Scrutiny Explanation: "For strict scrutiny, the government must have a compelling reason and use the narrowest means possible." (09:54)

• Jawboning via DMCA: "The DMCA basically works as a form of jawboning because instead of going after somebody, we put pressure on the platforms to remove content." (129:00)

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This comprehensive summary encapsulates the episode's critical discussions on the intersection of technology, law, and ethics, providing valuable insights for listeners unfamiliar with the full podcast conversation.

Transcript

[Leo Laporte]

It's time for this Week in Google. Jeff Jarvis is here. Paris Martineau. And joining us, special guest Kathy Gellis. She was actually in the Supreme Court hearing the oral arguments on the TikTok case. She'll give us her report for that. Also the oral arguments that just happened today. The Supreme Court considering the pornhub age requirement requirement. Is that constitutional? We have a lot to talk about, including this little thing I'm wearing. It's an AI device that records every word, spok around me and gives me a report at the end of the day. I like it, but is it legal? Next on Twig, podcasts you love from people you Trust. This is twig. This is twig. This Week in Google, episode 802, recorded Wednesday, January 15, 2025. A sycophant in your pocke. It's time for twig, this Week in Google, the show that will soon be renamed because it's no longer about Google. Ladies and gentlemen, I give you our hosts for the hour, the wonderful Jeff Jarvis, professor emeritus of journalistic innovation at the Craig Newmark Graduate School of Journalism at the City University Montc. Newmark.

[Jeff Jarvis]

Newmark.

[Leo Laporte]

Montclair. Do we need a jingle for Montclair State University?

[Kathy Gellis]

No.

[Paris Martineau]

Nothing can unstoppable.

[Jeff Jarvis]

Nothing. Nothing can unseat Craig.

[Paris Martineau]

Hello, Jeff.

[Leo Laporte]

How are you?

[Jeff Jarvis]

Hello. Good to see you, boss.

[Leo Laporte]

Also here at Paris Martineau, weekend edition of the Information where she is working hard. Did you file your story?

[Paris Martineau]

I did. It's out and we can talk about it.

[Leo Laporte]

Good, good. I can't wait. Don't say anything yet. Have you taken down the red string and the pictures on the wall and all that?

[Paris Martineau]

My binders are in a drawer for right now.

[Leo Laporte]

Do you see? You have to save that, don't you? For a while, the notes and so forth.

[Paris Martineau]

Well, I can neither confirm nor deny that for legal reasons, but in some cases. Yes, some cases.

[Jeff Jarvis]

In some cases, you don't want to.

[Leo Laporte]

Speaking of legal reasons, Kathy Gellis is here. We love Kathy. Of course. An attorney who has admitted to the Supreme Court of the United States of America. You can read her pieces in Tech Dirt. And she also is available for [e-mail]. hi, Kathy.

[Kathy Gellis]

Hello.

[Leo Laporte]

Your hair is growing in beautifully.

[Kathy Gellis]

Yeah, I think I'm gonna leave it like this.

[Leo Laporte]

I love it.

[Kathy Gellis]

It's so much more convenient, like, to travel and not have to pack a brush.

[Paris Martineau]

It's so crazy. Like, I had incredibly short hair for a while. And it's crazy how easy it makes showering. You can just walk out and you're done.

[Kathy Gellis]

Exactly. It was traumatic to lose what I had, but once it was gone, it was sort of. This is kind of nice. I mean, it's filled in, which is better. But. Yeah, I don't know. I think I may stick with this.

[Leo Laporte]

Kathy's, as you might know, recovering from cancer, but the prognosis is good and the hair is back. So, Kathy, you went to Washington, D.C. and January 10th happened to find yourself in the third row of the United States Supreme Court behind the. Just right behind the lawyers, actually. I loved your piece for Tech Dirt, where you describe what it's like to actually be in the same room as the justices.

[Kathy Gellis]

It's kind of profound. And this one was a weird session where I was admitted after the justices were already seated. That's not usually how it happens, but. And then they almost didn't have a chair for me. But anyway, it all. It all worked out, and I ended.

[Leo Laporte]

Up making a commotion there.

[Kathy Gellis]

I didn't. But I was left out with three other lawyers, and they made the commotion. And then I had said, and I wrote a brief, and they just decided to advocate for me while they were advocating for themselves. So I just kind of sat back and let people with some very good arguing skills take that lawyer's lawyer. Yeah, I let other lawyers. Lawyer and. But there was a very helpful woman in the clerk's office who was like, yes, this shall be fixed. And she fixed it. So.

[Leo Laporte]

Fantastic.

[Kathy Gellis]

Yeah. But no, it's definitely. You know, I was bashing the Supreme Court the day before, and then that day I'm just sitting there and I'm, you know, the. The justices are at scale. I'm only like 15 or 20ft away. It's. These are the human beings that are deciding everything.

[Leo Laporte]

Did that give you a different kind of. Maybe more of a understanding of them?

[Kathy Gellis]

Yeah, a little bit. And I think it may have affected my ability to process what was going on in the hearing, because I could see. I could hear things that weren't hitting the microphone. I could see things because there's no cameras there. I could see facial expression. I could see how far forward people were leaning. There's just more of the human element about how they're handling this. So it does give you information, I guess. Also some of the information is how are the human beings reacting to this? Because even when we have courts that we have more faith in, law is still a very human practice. And, yeah, the human beings matter.

[Leo Laporte]

There they were. So you were there for the oral arguments. It was. It's. It's A shadow docket case. Right. They accepted it at the last minute or no.

[Kathy Gellis]

Yeah. So it's. It's a little confusing. I guess it's. Well, I don't think it's not a shadow docket case anymore. Even if it was. There was a. I think a petition. There was a filing that I think was shadow docket be shaped because it didn't follow the normal rules for cert. For a cert petition. But they said, look, you could consider this a cert petition and you just grant the hearing. And they did. But what was odd was they granted it immediately, which is unusual.

[Leo Laporte]

This was a petition from TikTok to put a stay on the or or overturn, in fact Congress's order to diversify divest to the United States owner or to shut down. By the way, the latest on this came from TikTok this morning, probably from the Chinese government saying we will shut down Sunday, wasn't it?

[Jeff Jarvis]

That was a scoop from the information.

[Leo Laporte]

Yeah. Oh yeah, the information had that. Yeah. So. So really TikTok's life hangs in the balance here. At least, at least in the United.

[Kathy Gellis]

States it hangs in the balance. It's also, not to be pedantic, but it kind of matters a little bit. The. It was actually two petitions went in because this was a combined case because you had TikTok fighting for its life. And then you also had a petition from a group of users and TikTok creators who were like, hi, we're going to be affected if TikTok goes dark because that, there goes our audience and all of our content and this and the other thing. So the cases got consolidated and they filed their own. They had their own filings, but basically they were all asking for the same thing. Namely, could you please press pause? Because the D.C. circuit, it not only found the. Found the law constitutional, but then also said, and there's. I don't, I don't remember. Either they said there's no reason to stop it or we can't stop it, but that was kind of ridiculous. So if nobody stopped it, it goes. And the law goes into effect and TikTok will be violating the law as of Sunday.

[Leo Laporte]

So it was specifically does not require them to shut off their servers in the US the law only requires Apple and Google to stop distributing the app. Is that right?

[Kathy Gellis]

There was a lot of discussion at the hearing for, well, what does it mean? What are the implications? TikTok was kind of like, as a practical matter, this is unviable for us. And they made the point in the hearing to say we'll have to go dark. Because none of the. None, no one who provides services to help us provide our service will be able to help us provide their service. So from all practical, they were basically, for all practical purposes, we can't function, so we have to go dark.

[Jeff Jarvis]

Cathy, was anyone standing up for the First Amendment?

[Kathy Gellis]

Oh, it was entirely a First Amendment case.

[Jeff Jarvis]

So yeah, but we were losing, I think, to security. I mean, was there, was there a key advocate for that?

[Kathy Gellis]

Oh, both, both TikTok and, and the petitioners.

[Jeff Jarvis]

I'm sorry, what about the court justices?

[Kathy Gellis]

Yes, so. So the weird thing with this case is the shadow docket bit was could you please press pause somehow? But also we do need to file this or petition so you can review this. Because the D.C. circuit on First Amendment grounds was really troubling because what was vaguely good about it is it recognized that probably heightened scrutiny was needed to evaluate the law. But after applying strict scrutiny, it said, oh, yeah, but it's totally fine. And the way I would paraphrase that is that. And I put it in the amicus pre5 file that they said it was strict scrutiny, but it was really rational basis. Like, did the government have any reason to be concerned? Sure. Okay. Therefore this law is fine. And it's supposed to be a much more rigorous test than that. So the case on the merits really is. And this is how the Supreme Court granted the review was open question, does this law violate the First Amendment? So it was all First Amendment doctrinal to make the point to say strict scrutiny is the right scrutiny and that when you apply it, there's no way it can apply here, given the law, its nature, its effects. And also what the claim purpose was, because it had two claim purposes, one of which was data collection issues of it's not great if China's slurping the data of Americans, which fine, that. That's a compelling reason, then you would need to also answer, well, it slurps it, but is this the way to deal with the slurping? Because there's just such enormous impact on the First Amendment rights of the platform and also of the users. But then the second bit was it didn't like how the algorithm was working. It didn't like how TikTok was moderating content. And that was not contrast content neutral. That was the government really taking issue with, we don't like the way TikTok handles speech. And that should just, on its face, offend the First Amendment. So then there's the issue of, okay, well, what if the data Collection part was legitimate. Can you validate a law that has one legitimate purpose, but one illegitimate purpose? Even if it had a legitimate purpose, it's got all these collateral effects. So that's basically what the discussion was largely teasing out.

[Leo Laporte]

In fact, there is evidence that TikTok will ban posts that are critical of the Chinese government, but that you can't. The US Government cannot say to a publisher in the United States, we don't like what you're publishing or not publishing, therefore go away.

[Jeff Jarvis]

Well, they're doing that in Texas.

[Kathy Gellis]

But in theory, yes, the First Amendment says no. There is a question about whether the foreign nature of TikTok affects the first Amendment analysis. But that gets complicated. So what TikTok was arguing was, but we've got a full US subsidiary. And then there's also the. Well, even if they didn't have First Amendment rights, all the American TikTok users are Americans and we get First Amendment rights. And in the amicus brief I filed for the COPI Institute, we also made the point of if you're going to pivot the First Amendment and whether it protects somebody on how American they are, how American do they need to be? Because then you get all these American platforms that are owned by foreign investors. Does that disqualify them? So all of this. And then you also have the issue of if American rights can get lost because somebody else involved wouldn't get First Amendment rights, well, then that's no good either, because Americans are going to lose their rights because there's a foreign platform.

[Jeff Jarvis]

What about the Guardian and the Financial Times and the BBC and.

[Kathy Gellis]

Exactly. That was a point that was made where. Wait a minute, this was the logic that would say that the TikTok ban is fine, would also say that the American government can control whether a filmmaker can make films for the BBC and, or appear on Al Jazeera or. There's a number of things where, you know, we're all talking to each other and our rights involve speaking and accepting and receiving the speech of foreign entities. And. And then we pointed out in our brief that, like it, it's also untethered. How American do you need to be? And so, like, the law defines it. It's not like there's any precedent that really says so. And if you start snipping around the edges, you're going to just snip the whole thing into pieces.

[Leo Laporte]

You note in your Tech Dirt article, the justices seem to realize that if you did push this, you know, that first, you know, foreign ownership could supersede First Amendment protection. It would have enormous effects beyond this case.

[Kathy Gellis]

I think so. And I think we set up in our brief that you could sabotage American interests just by buying an American platform or too heavily investing in an American platform where all of a sudden you could make that platform go poof.

[Leo Laporte]

Right. If you're German.

[Kathy Gellis]

Yeah. Oh, and then there was a lot of discussion and the realization by the court that Politico is owned by somebody who's German. And clearly, I think there's some political readers on the. On the court, so.

[Leo Laporte]

Oh, interesting.

[Kathy Gellis]

Yeah.

[Leo Laporte]

So that's the main. The main thing we wanted to talk to you about. This is, by the way, much more complicated because the shutdown would be Sunday. The next day, President Trump gets inaugurated. His administration filed a brief saying, hey, give us some time. He asked for a stay.

[Kathy Gellis]

Right.

[Leo Laporte]

So it's very. It's politically extremely complicated. But let's not think about that, because you were in the court. I'm very curious how the oral arguments went and where you think the general press seemed to think that the justices were ready to shut Tick tock down. Is that accurate?

[Kathy Gellis]

I mean, I don't want to be glib. The. The potential for this court to do something stupid and horrible is high. But a lot of them were interpreting the questions from the justices to the parties as, oh, this is a sign that they don't like the argument. And I think the sign is really that a lot of these questions are, help us write this decision. How do we write the rule that applies to you? And it's something that's scalable. What is the rule that needs to be here? So I didn't take.

[Leo Laporte]

That's why it's hard to interpret the questions they ask as being pro or con.

[Kathy Gellis]

Right. But I interpreted the mechanics of basically what they were saying to be useful in that regard. Now, if they end up too splintered, that could be an issue. But right now, we need five votes to basically at least stop this law from going into effect, although we can get to that in a second with the timing issues. But one of the things that I put in the blog post that I think was good was oral argument was originally scheduled to be 2 hours for this combined case, 30 minutes for TikTok, 30 minutes for the users, and then an hour for the government to answer and stand on this. And it turned into both sets of petitioners had over an hour, and I don't think the government got any significantly more time. And I don't know if they even use the hour. But I think we were there for about Three hours total. I think that is some significant indicative of engagement in the issues and understanding what the issues were, which I don't think you'd see if the court was, no, we're fine. D.C. circuit got it right. And we're just, you know, making you happy by giving you a hearing.

[Jeff Jarvis]

And was there a discussion of the Trump desire for delay?

[Kathy Gellis]

There was discussion for the Trump desire to delay. Because one of the questions is, what are the options for the court right now? So the court could just come out with a decision saying, this is not constitutional law found. You know, if only law overturned here. Here we go. That would be nice. But that would be an awfully quick decision and an awfully quick turnaround time.

[Leo Laporte]

Because they'd have to do before Sunday.

[Kathy Gellis]

They'd have to do it before Sunday. So then the next thing is, well, what could they do to potentially stop the clock and even just buy them more time? And one of the arguments is buy yourself the time, even if you're not quite sure what you want to do.

[Leo Laporte]

So they could issue a temporary stay?

[Kathy Gellis]

Well, that's what they were discussing. They seem to not be quite clear on what they could do. And Justice Kavanaugh, and this was also referenced, relevant to the oral argument today, seem to think that, well, we kind of have to decide the likelihood of the merits if we're going to have an injunction, but I don't really know. And a lot of people don't know where he's coming up with that from. And TikTok said, no, you don't need to care so much. Could they do an administrative stay? Like, what could they do? And in our brief, we suggested that if you're at all inclined to do something, press pause, find a way to do a stay and maybe invite for further briefing. It's not completely unprecedented, although it's not common that they could do that. The idea that, like, TikTok loses because there was such an accelerated timeline that didn't give enough time to appropriately challenge this before the penalty set in. Like we put in our brief, that can't be the rule. Because all a Congress has to do to do something unconstitutional is put in a really tiny timeline. Yeah, like, too late. Sorry. It would have been challengeable. You would have won on your challenge. Give me the idea.

[Leo Laporte]

You point out in your article that Trump, if. If the Supreme Court did nothing. TikTok shuts down on Sunday, that it's the opinion of the court that Trump could not rescue it. Actually, the petitioner said that, and Sotomayor said she was not keen, you say, on a president refusing to enforce a duly passed law.

[Kathy Gellis]

Right. So the whole bit is if inaction.

[Leo Laporte]

On the part of the court would be the same as agreeing with the government.

[Kathy Gellis]

Yeah. I mean, some people are teasing out, and I think it was discussed at the oral argument of, well, if it's dead, how dead is dead? But. But one of the issues. Dead. It turns out that's what TikTok was arguing. But one of the issues is, okay, let's say the court did press pause, could wall while this. So Trump has kind of pushed the Supreme Court's hand a little bit. Because if they press pause and he comes in and he tries to save TikTok, does it moot the case? Part of me doesn't care if it moots the case as long as it gets rid of the D.C. circuit decision, because that's the precedent that he can't.

[Leo Laporte]

No president can overrule Congress.

[Kathy Gellis]

That's what the. That's what Justice Sotomayor's comment was, which is there is a law that needs to be enforced. And giving him time to come in and ignore it is not something that is supposed to actually happen. That if TikTok is out, is in violation of it on the 19th. Trump is not supposed to be able to come in on the 20th and say, I forgive you, I bless you, or I'm going to somehow change the circumstances.

[Jeff Jarvis]

But couldn't. Couldn't Trump come in and say, well, my Justice Department is going to argue quite contrary to what Biden's Justice Department argued, and I want my chance?

[Kathy Gellis]

Well, that's what he said in his amicus brief.

[Jeff Jarvis]

Right.

[Kathy Gellis]

I think that works for an argument about how unconstitutional it is with the fact that this ship will sail without him, even though the administration has a completely different view. I also think it undermines the D.C. circuit's reasoning because they looked at the fact that both the previous Trump administration and the Biden administration didn't like TikTok, and they sort of were like, collectively, the administrations don't like TikTok.

[Jeff Jarvis]

Well, he changed his mind.

[Kathy Gellis]

He's allowed to change his mind, but he can't change his mind because if this ban goes in, it takes away the ability for him to have a different policy. I think that buttress is the First Amendment argument to say, this is why Congress doesn't get to do something like this, because it doesn't just decide the speech preference for the people, it decides the speech preference for the rest of the government, the current government, the future government. And that's bad too. So I think he helped on the substance argument, but his entire reason for wanting to do it is he wants to come in and be the hero. And, no, he's not supposed to have that opportunity to come in and be the hero where he kind of just wants to do his own. I have decided otherwise, which is also not how things are supposed to work.

[Leo Laporte]

I don't always agree with Justice Gorsuch, but in this case, he did say something that I agree with. He excoriated the use of secret evidence to underpin the government's concerns about TikTok's security.

[Kathy Gellis]

The line came quickly, but I heard it is doing that as well, which was interesting.

[Leo Laporte]

Yeah. In addition, you write to lamenting that the factual record was still being laid even at this stage of the case. This is something we've always said, how does this work?

[Kathy Gellis]

What happens? And it's like, that's not supposed to be the thing that the court is deciding.

[Leo Laporte]

Yeah.

[Paris Martineau]

Oh, I was going to say, I mean, is it feasible that if this goes through, could Trump's Justice Department just say, we're not going to enforce it?

[Kathy Gellis]

Well, he thinks so. There's not a lot of people saying no to him. So from a practical matter, the answer may be yes, but that's not supposed to be how any of this works.

[Jeff Jarvis]

But doesn't that happen that you see this in, for example, in abortion cases where a liberal AG in a state says, I'm not going to enforce that?

[Kathy Gellis]

It's always a constitutional crisis when that happens to some degree. I mean, you always see things in terms of prosecutorial discretion. But this is a really overt example of prosecutorial discretionary. But TikTok is also in a position of they are essentially breaking the law as of the 20th. So this is the reason they're preparing to shut down, I would presume, is because that is. That's a very heavy set of dice to be rolling to see what Trump would do.

[Leo Laporte]

There's also, and some have said this, a little neener, neener, neener from the Chinese Communist Party. Maybe they're hoping that there will be an uproar when all of a sudden, and this is the plan, by the way, on Sunday, unless the court stays it, that when you open your TikTok, there'll be a message saying we're no longer able to operate in the United States.

[Kathy Gellis]

I mean, and Trump also had a nut. Well, he had a couple of interesting points in his brief, but one that I thought was interesting was him pointing out that if we can do this to platforms In America, it teaches platforms around the world they could do it, too. Now, he was arguing it for his new buddy Elon, who was unhappy with what Brazil did to him. But even though Elan gratuitously poked the bear, I think his fundamental liberty points were actually quite sound. And I think Trump makes a good point here. Trump also made a good point to say that the D.C. circuit really didn't consider the interests of American users very much as they were considering the First Amendment impact. He was arguing it because he misunderstands things in the way that Murty versus Missouri misunderstood them. But he's not wrong in terms of on the face of that argument. And, you know, I look forward to shoving all of that really good argument back down his throat as we continue to litigate things in his administration. But it wasn't wrong on his face. And the D.C. circuit was, I think.

[Jeff Jarvis]

Let me ask a ridiculously broad question. This goes to the other case that was before the court today about pornhub and such. What's the zeitgeist about the Internet that you heard from the justices? Like, oh, yeah, it's the Internet. It's awful. We hate it, or no, there's something there to protect? Or did you see any kind of larger worldview of the Net?

[Kathy Gellis]

I felt a little bit better after the TikTok versus today's hearing. The zeitgeist from today made me think that the justices have some fear of the Internet, that the protections that they were willing to afford it earlier on, now they're kind of like, yeah, but the technology is in a different place. Maybe we have to think about this differently. So I didn't enjoy it. The zeitgeista was kind of emerging today, but the case today was in a case that involved adult content, which also has some complicated optics. So it's a little tempered like that. I actually thought there were a couple of high points with the TikTok hearing where there's a couple things that we thought were going to be hard, uphill arguments that I think we've won, one of them is that there seems to be an understanding that Internet platforms themselves have some First Amendment protection.

[Jeff Jarvis]

Oh, yeah.

[Kathy Gellis]

And that because that's something that's underpinning like TikTok's challenge, and they didn't really have to argue it. It was something that Moody versus NetChoice had addressed, and it appears to largely be accepted. And that's a really interesting point that that was like the starting position as opposed to ground that TikTok needed to win in order to make its arguments. So that's significant. And then related to that, it also felt like the justices understood that algorithmic moderation was an expression of editorial discretion and that they could understand that the First Amendment extended to that, which was also something that in theory TikTok would need to argue. And it did not feel like it was grounded, actually need to cover that. That was that loop was already closed. I could be wrong. They could always do weird things. But, but if for your Zeitgeist question, if I'm right, and that's what I was hearing, these are two very significant things. And again, one point that we put in, one reason I dropped everything over the holidays to write an amicus brief is because what everything that they decide in every single case reverberates in every future case that's ever going to be before them. And all of this is basically putting together a curriculum, granted a very disorganized curriculum, to try to teach the Justices how to think about these things. And so I wanted to write now to teach them things and also to show them that what they decide here will matter and will matter in other contexts, because it will. And I wish I had been able to write a decision for the case that got heard today earlier in the year, because again, if that instance was a bad law. But I want the court to think about how all these issues present themselves not just when you're dealing with pornhub, but when you're dealing with everything.

[Jeff Jarvis]

Well, there's also the sense of content. My favorite moment that I put up a tweet online. 115Leo of I think they're trying to understand the Internet in the context of what they would consider content. Justice.

[Leo Laporte]

Justice Leo said, is it like Playboy, that there's stuff he says, essays, modern day Gore Vidal, stuff like that? By the way, there is. There's a great article which I'll show you later. There's a woman who, besides having an adult channel on OnlyFans, has a Pornhub channel that is not adult, that is safe for work, in which she discusses math. She teaches math. And the reason she does it is because the royalties are so much better. She puts the same stuff on YouTube, but the royalties are so much better on Pornhub.

[Kathy Gellis]

Oh, is that presented in any of the briefing? Because that's.

[Leo Laporte]

No, I don't think so. Isn't that interesting? So it does answer Justice Alito's seemingly naive question. Yeah, there's none.

[Jeff Jarvis]

No, honey, I was learning math.

[Paris Martineau]

I was watching a video on neural networks.

[Kathy Gellis]

So in today's hearing, Justice Gorsuch was really trying to hold the the Free Speech Coalition's lawyers feet to the fire in a way I found really unfortunate to basically say and how much is he used more technical terms, how much is adult content and how much isn't. And he was really trying to get a number. And the lawyer was fumbling around with trying to give him the number and partly because he's representing a consortium. So the number is going to vary across the platforms. I don't think he fielded that part well. And the beginning of today's hearing really had me not happy. But Joe de Sotomayor, I think, saved the day because she pointed out this is really a very basic case. The one that was heard today, which was the district court had decided that based on the preliminary record before it, it was going to enjoin the law, subject to further hearing and trial and considering whether it truly is unconstitutional. But I thought there's enough here to be really worried. It put the brakes on it. And then the Fifth Circuit Court of Appeals said we're not going to apply heightened scrutiny. We're going to apply rational basis scrutiny and this law is totally fine. So the injunction went out the window. So all that's really happening here was trying to argue, hang on a Second, wasn't the 5th Circuit wrong about what level of scrutiny applies? Surely it's strict scrutiny. The 5th Circuit decision should be vacated and we send it back there for future for further proceedings now applying the correct standard. Because then you can make the question of okay with heightened scrutiny, strict scrutiny in particular. Is that law okay, could you explain.

[Leo Laporte]

What, what is strict scrutiny or heightened scrutiny? What are we talking about here?

[Kathy Gellis]

Yeah, I'm, I always. There's very specific ways of saying it and I'm just going into paraphrasing it, but it's all very Googleable for the correct way. But basically for strict scrutiny, when you have these liberty interests like free expression, if the government is going to be able to trample them, you want to look for a couple things. One, did they have a compelling reason to do the trampling? And two, did they use the narrowest means possible to or appropriate. I think it's as the narrowest possible to do the trampling because you want to make sure you're not doing gratuitous amounts of collateral damage to these protected liberties.

[Leo Laporte]

I love it that. I don't think there are very many other countries that are so protective of free speech, of First Amendment rights.

[Kathy Gellis]

No, I don't think there are and continue to be the leader here. And I worry about how they do these cases that to whether that will.

[Leo Laporte]

Still be the case or not even with strict scrutiny. Do the security concerns about TikTok outweigh and its creators First Amendment rights? Is that the question?

[Kathy Gellis]

So just to close the loop on today's. So Sotomayor was saying, but it's going.

[Leo Laporte]

To be a similar question, the pornhub decision.

[Kathy Gellis]

So for the pornhub one today, what Sotomayor was saying is that what we need to say is that strict scrutiny was the thing that was supposed to apply. Send it back to the lower court. They can apply strict scrutiny, then arguably there will be another appeal because they'll apply it and maybe they find that no, the law totally passes strict scrutiny and somebody's. Somebody's going to be unhappy when they'll disagree.

[Leo Laporte]

Yeah.

[Kathy Gellis]

So there will be another appeal and then the court will revisit the question to figure out based on what Texas was trying to do. Was the strict scrutiny analysis. Correct. Which kind of puts us in the position of where we were with the TikTok ban because the D.C. circuit did apply strict scrutiny, but applied it in a very casual way or that's my term. They applied it. I'm in a way that I don't think met the muster of what the, of what the test was supposed to do.

[Leo Laporte]

And therefore they said we haven't seen the evidence. But sure, if the government thinks it's bad, we must, it must be true.

[Kathy Gellis]

They credit it a lot. So to get to your question, and it's basically a question for the court, there was a lot of traction, particularly with Kavanaugh, but you know, all the justices bought into it that slurping the data presents a real issue for America. And maybe it's a real security concern. But you know, TikTok made a point of, okay, then pass a data protection law. And we're going to wonder why you're calling this one a data protection law when there's a whole bunch of Slurpee activities you didn't bother to, you know, make illegal.

[Leo Laporte]

Much worse, frankly. I'm sorry, Much worse. Slurpee activities.

[Kathy Gellis]

Slurpier things. Other slurping by other Chinese platforms, platforms which are untouched by this law. American platforms are still slurping it. And we pointed out in our brief that if, even if China doesn't slurp it directly, they could just go buy it from a data broker. So like you have. It's a problem.

[Leo Laporte]

Yeah.

[Kathy Gellis]

So one of the arguments, I love.

[Jeff Jarvis]

That you've made slurpage a legal term.

[Kathy Gellis]

I think slippage needs to be the legal term. But so you, you've, you've got this law that has huge effects. You're going to obliterate a platform and all the speech that the platform facilitates, and you haven't even solved the problem you may have had a compelling reason to go solve. So TikTok is saying, like, that's a problem you really need to look for. Are those means that it's using to meet that compelling purpose narrowly tailored enough? Because look at all this collateral damage you have, and you aren't even accomplishing anything. But then there's also the related question of, okay, then you also have an impermissible purpose, which was. It doesn't like the way TikTok moderates content. And one of the stated purposes of Congress was to go after those moderations. They're just mad in theory that it's covertly moderated. But everyone's. But TikTok was like, and what does that mean? That basically means that, you know, and if that was your problem, what could you do? You could maybe mandate disclosures or something like that. Like, you don't have to obliterate the platform. Even if that was a valid claim concern.

[Leo Laporte]

It seems very clear that the First Amendment prevents the government from telling a private entity how they should moderate.

[Kathy Gellis]

That seems really so. And Moody versus NetChoice gets everybody there. But TikTok is maybe a little too Chinese to qualify for that. And that seems to be the thing that's making everybody lose their minds. So I, you know, the reason I'm.

[Leo Laporte]

I'm somewhat so, really, the only ground that the government can complain about is slurpage.

[Kathy Gellis]

Well, slurpage, I think there's no issue.

[Leo Laporte]

Of whether it was, well, what's the security issue? They can't, I mean, they can't complain about moderation propaganda, right?

[Paris Martineau]

Well, the slurpage is security.

[Leo Laporte]

Yeah, the slurpage, that's the only security propaganda doesn't count. You cannot. The government cannot tell an entity what to say.

[Kathy Gellis]

Right. I think the idea to say the slurpage is a national security concern is, okay, fine, that's a lot easier to accept. But saying that the moderation is a national security concern, in theory, that is not an argument that the government should be able to make. And so, yeah, that was probably in play at the hearing.

[Leo Laporte]

It's not as much that the justices understood that if they were there, that would be a can of worms if they were to open that up.

[Kathy Gellis]

I mean, I felt like I counted at least five votes who understood that there were concerns that the D.C. circuit just kind of plowed through. What I'm less concerned sure about is if the court really knows what, what, if anything it can do about it and what rule that it would write. But one of the things is these things in theory should be very small, like press pause on this, maybe ask for more briefing. I mean, I think they could reach the merits. I don't think this is a hard case on the merits, but since everybody is all upset about it and maybe some justices think that there's some validity to the government's argument. I don't know. Press pause. Let's get more briefing. Including more briefing. We had no commercial platforms in this as Miki, except the only two amici who operate platforms were my client, the Copia Institute, AKA Tector, and Donald Trump. I mean, that's ridiculous. It was us and Donald Trump. How does that happen when you have the entire industry with platforms upon platforms and. And they didn't brief. They didn't brief for a number of reasons. But, you know, one of them was the practical concern of everybody had to drop everything and brief in an unusually short time frame. It was just completely accelerated. And so you didn't get to have all the voices to kind of point out, like when the amici show up, they can really sort of frame what the speech interests are because they can talk about. If this goes forward, here's how we will be affected. And they didn't brief in TikTok and they under briefed as well in the Free Speech Coalition. One, and I think that's a problem as well because. Because it's too easy for the justices to think this is all about adult content and not recognize that these sorts of laws will have impact on things that are clearly protected speech. They had to use their imaginations a lot more. And that's not really a good thing. We don't really want the justices to have to use their imaginations. We'd rather tell them what they need to think.

[Leo Laporte]

You also wonder article, you point out that one of the justices in the past has said, you don't have the nine biggest Internet experts here. You point out that part of their job and part of the reason you write the briefs is to become Internet experts. If they're gonna, if they're gonna rule on these cases, they need to know what they're ruling, listen to them.

[Kathy Gellis]

Well, that. And that's why I was saying, like, why I dropped everything to write the brief. Because every case involves an issue that's gonna reverberate later on. So think of if I'm right and we've got certain wins where they understand that the platforms have First Amendment rights and if they understand that algorithms are expressions of that, like that is going to matter for everything else that they hear. So we've sort of accidentally been building this curriculum for the court. It's unusual for the Supreme Court because the Supreme Court is one stable, well, more or less stable set of the same justices. Whereas when you're at the courts of appeals, you get rotating judges because it's not always the same three who end up hearing your case. So there's a lot more room for variability and you don't know how expert each one is and you have to kind of go from 0 to 60 when you're at the Court of appeals. But one of the reasons, what I think about it with my Supreme Court practice is we are building. We are building because we're not just here for this case where it's the same brains that are going to be deciding cases down the road. And I want to look for an opportunity in this first case to teach them something they're going to need to know for the cases that are coming down the pike.

[Leo Laporte]

Yeah, good.

[Jeff Jarvis]

I put in the rundown that Senator Markey has proposed a bill to grant a 270 day extension on the TikTok ban. I don't know whether that will go anywhere in this.

[Leo Laporte]

It would have to be passed by Friday.

[Jeff Jarvis]

Yep.

[Leo Laporte]

Yeah.

[Kathy Gellis]

Yeah. I don't know how I feel about it. I mean, I don't know. I'm a little agnostic, but I also don't really want to. I don't know if I want to moot the litigation either. But as long as the D.C. circuit's decision is no longer good law, I don't care nearly as much. I'd rather start with nothing, but I do not want to be haunted by that. So as long as that is obviated somehow, whatever.

[Leo Laporte]

Will the Supreme Court make a ruling in the next three days?

[Kathy Gellis]

My personal feeling. So a lot of people are like, wait a minute, silence indicates that there's some trouble. And maybe that's true. I had the personal feeling that they were waiting for today's hearing because today was dealing with the First Amendment case and that no sense kind of doing something too soon like this would help inform their thinking because they're going to need two decisions that in theory don't clash. So now I think the clock is running where I'd expect something at any time. But we don't know, and I don't think they know. And you have principal people who are willing to stick with doctrine. You have confused people who aren't. And I don't know. It's. That's the reason it's hard to be completely bullish about what this court will do, because a lot of what it does is in theory. This is no way to run a railroad. And it's really, you know, seeing those nine human beings up close, it's particularly human. This particular iteration of the court.

[Leo Laporte]

How are they going to rule on the pornhub thing? These were arguments, right? They didn't rule, did they?

[Kathy Gellis]

No, they didn't rule. So this one, we wouldn't necessarily expect the decision all that soon.

[Leo Laporte]

There's no urgency.

[Kathy Gellis]

Well, actually, I take that back. There might be urgency because there's no injunction at the moment. So I think the law is in effect. So right now you're actually accruing harm. So it would be nice if they actually did something sooner before later. And, yeah, there is some exigency in actually putting if there's any inclination to enjoin the law or at least stay it or, you know, buy yourself more time to live to fight another day. So I think what I'm hoping from both these cases is that the court is willing to say there's big issues here and we should at least live to fight another day as opposed to let harm accrue now when we're not entirely sure. And it's going to take a lot more thinking to tease out whether this harm is constitutionally inflicted or not.

[Leo Laporte]

So. So the ideal situation, from your point of view, would be two stays. A stay of the TikTok law and a stay of the Texas law. By the way, Texas is not the only state that's doing this a dozen.

[Kathy Gellis]

No, And I think it's. The courts have generally been ruling against age verification, but I think there was just one out of the six that went the other way. So this is a live issue that's causing lots of problems. And the litigation is still happening in all these other cases. And I think the justices were aware of it. I think Kagan in particular was sort of aware that, yeah, this is just one of many and that these other cases are not necessarily implicating adult content that they're dealing with. Also, you know, other forms.

[Leo Laporte]

Are there other Internet cases on the docket this session?

[Kathy Gellis]

I need to check, but these were the biggest ones I was aware of. There is a pending cert petition for Cox vs. Sony, which is a DMCA case? Well, it used to be a DMCA case. It may kind of still be a DMCA case, but this is one where the. The ISPs, like the big Cox Communications and Grande communications, these big ISPs were not terminating users when they got the takedown notices, which in theory now all of a sudden they had to do. And I think it's framed as a copyright case, but I think it's really a First Amendment case, and I'm really hoping that CERT is granted so I can write a nice First Amendment brief in that case as well.

[Leo Laporte]

Yeah, it's really fascinating.

[Kathy Gellis]

Does this all make sense? Like, I'm just. You made me feel better, but I'm.

[Jeff Jarvis]

Gonna blame you if it goes the wrong way for my depression that comes.

[Leo Laporte]

But the reasons people bring up for TikTok are the issue of propaganda. And I think. I don't know what the justices will do, but I think we can all agree that that's not the. That is a First Amendment protected. Propaganda is protected by the First Amendment.

[Kathy Gellis]

Normally, yes.

[Leo Laporte]

And there is precedent, as is moderation is protected by the First Amendment. You don't even need Section 230 to do that. That you, the government, cannot step in and say, no, no, you got to do that. You got to do this. This is something conservatives have been saying about the previous administration's relationship with the TikTok x.com or Twitter, as it was known then. So that seems to be some agreement. Your government's not allowed to do that. So the really, the only thing is the national security issue, and that has to do with slurpage.

[Kathy Gellis]

I mean, the national security concern is brought up in both contexts for the slurpage.

[Leo Laporte]

I understand, but we could throw out moderation propaganda. I think any reasonable person would say, well, that's protected.

[Paris Martineau]

Right.

[Leo Laporte]

So. And I think the TikTok's argument that, well, if you really care about this, you should have a law about everybody else, too. All you're doing is banning us when everybody else and their brother is slurping up as much as possible all the time and frankly, selling it to the highest bidder, including China. That seems very persuasive.

[Kathy Gellis]

Yeah, I think so. I don't entirely know what the conniptions are and why this isn't, you know, why there's pushback. I mean, sometimes a lot of it is the optics. Justice Kavanaugh, does that work, though, with.

[Leo Laporte]

The Supreme Court to say, well, if you really cared, there'd be. The law would be broader. Is That a way of arguing against the law, it should be broader.

[Kathy Gellis]

It's hard to say. I mean, the problem is sometimes their jurisprudence is pure and respectful of prior precedent, and sometimes their jurisprudence is whatever they really wanted to have happen. And it comes from the same justices. So it's really confusing. Justice Kavanaugh in particular in the TikTok hearing was. Seemed really exercised by the national security concerns. I mean, he mostly was exercised with them in the data context. But it's not like TikTok was really trying to hold the line and say, we're not saying you don't get to be concerned or Congress doesn't get to be concerned. Go ahead and be concerned and pass an appropriately tailored law. And if the law doesn't even solve the problem, it's really hard to argue it's appropriately tailored when it then also has all these collateral effects. So one of the issues that is.

[Leo Laporte]

That can be persuasive, that. Hey, hey. Your honor, they're picking on us because we're Chinese. That could be persuasive.

[Jeff Jarvis]

Well, that's popular these days.

[Kathy Gellis]

Yeah. Well, the. Yes. I don't know if they were saying we're being picked on because we're Chinese because there was the issue of, well, why didn't you sweep up Timu too? But they. What they were basically saying is we're being picked on for speech related reasons because really you didn't like the speech that our platform was facilitating and that. That is a per se. Should be a per se. Violation of the Constitution.

[Leo Laporte]

Bing. That's all you need. Yeah.

[Kathy Gellis]

So then meanwhile in today, the Texas attorney general had conveniently not read one of the major first amendment in the Internet cases that the Supreme Court has actually issued a case called Packingham. And oh, that was not a good moment for a lawyer to be called out where the. Justice Jackson was asking and what about this case? And he says, oh, I haven't read it.

[Leo Laporte]

Oh, boy.

[Kathy Gellis]

Yeah. That's not like it came out that long ago.

[Leo Laporte]

First year law, right?

[Kathy Gellis]

Yeah. I was a classmate in law school. It was Mr. So and so. Did you read the case? And it was a really painful moment for. For my friend when he had not. This was not good.

[Leo Laporte]

Did you ever see the Paper Chase? You must have.

[Kathy Gellis]

I didn't.

[Leo Laporte]

Oh, what a great movie.

[Kathy Gellis]

Mostly because I think a lot of that sort of Socratic abuse had sort of been discredited by the time I was a law student.

[Leo Laporte]

Oh. But it was still. Well, that's the famous moment in that where John Houston. Is it John Huston, the professor. It's Houston, Walter Houston. Anyway, he picks up, he takes a dime and he says, here's a dime.

[Jeff Jarvis]

Houseman.

[Leo Laporte]

John Houseman. That's right, yes. A formerly colleague of Orson Welles in the Mercury Theater, the great, the legendary John Hasman says, here's a dime. Call your mother and tell her you're not going to be a lawyer.

[Kathy Gellis]

Yeah. By the time I got to law school, it's generally a kinder and gentler.

[Leo Laporte]

Oh, that's too bad. I think John Houseman had the right idea.

[Kathy Gellis]

Oh, thank you very much. But also that was, in theory, I think it was set in Harvard and I went to. It was Harvard Law, Boston University School of Law. So we just sort of like gazed down the river at the little brick schoolhouse and, you know, I think probably got a better education.

[Leo Laporte]

I saw it at the Yale Law Film Society when I was at Yale. So we all laughed at Harvard Law. You're watching this week in Google, Kathy Gellis, a very special guest to talk about all these First Amendment slurpage things. It's good to have you, Kathy. Thank you. From Tech Dirt and, and, and on the Blue sky at Kathy Gellis. They did mention Blue sky, didn't they?

[Kathy Gellis]

So, yeah, somebody got mad at my Tech Dirt post because I didn't explain the context that Justice Kagan mentioned it, but I couldn't quite remember. And it wasn't hugely important to the other things. But at some point, and this is kind of key, I was remembering later, Kagan seems to be particularly clued in with the fact that these cases have implications for other platforms and is most aware of the ecosystem. And there was some discussion in the TikTok case about, well, if you didn't have TikTok, then what? And TikTok was pushing back to say, you know, other come other companies have tried to have a TikTok like service and oh, it wasn't TikTok, I think was the users. The users are saying, we've tried them out and we just don't find them.

[Leo Laporte]

That's not true. That's silly. My son has moved from TikTok to Instagram.

[Jeff Jarvis]

Well, it depends on what you want.

[Kathy Gellis]

You know, maybe that works for him, but. But in any case, there's always pornhub. It's in theory, it shouldn't be fungible because the whole point of the editorial discretion is all of them are going to do the operation a little bit differently.

[Leo Laporte]

If they're all the same, then that obviates your argument.

[Kathy Gellis]

Right? Exactly. So there was that and I Can't remember if it came up then, but in terms of discussing other things that are new, that would come up at some point, Justice Kagan was like, what's that new one? Oh, Blue Sky. And if I were really pedantic, I'd go back and look at the transcript and see what that comment followed. But. But, you know, having written an amicus brief before the Supreme Court with Blue sky as the client, I feel a little ahead of the curve here.

[Paris Martineau]

How long do you think it will be until a justice says the word skeet?

[Kathy Gellis]

Probably not this term. Unless we have something that, you know, all of a sudden ends up in emergency, fix it.

[Jeff Jarvis]

Well, let's actually hope they don't. So they can just, just, Just ignore Blue Sky. Let it be.

[Kathy Gellis]

I mean, the way they, the way they end up, you know, having their discussions, I could see it happening. I wouldn't rule it out. I'm more thinking about is there going to be a plausible opportunity where it won't be completely out of context? And I don't know if we have anything on the docket before the end of this term.

[Leo Laporte]

Kathy Gellis is here. Jeff Jarvis, of course, Paris Martineau, our regulars. You're watching this week in Google. And as I mentioned, we're going to change the name, but the show is going to stay pretty much the same. We're going to cover intelligent machines, which we have always done. So that will start February 5th on Paris's birthday. It's our little gift.

[Jeff Jarvis]

So, by the way, I mentioned this as the show was on last week to Jason Howell. Since I'm also wanting inside.

[Leo Laporte]

We don't want to duplicate what Jason said.

[Jeff Jarvis]

Jason said immediately. He said, great idea. And he said the name should have changed long ago.

[Leo Laporte]

Yeah, he's right. He was a lot. You know, he was a supporter this week in Google. He did our Android show, but Google has not been all that interest there. We have a few things that could actually be in the change log this week. Hey, do you want to do some acting? Paris Martineau. I thought. I thought a. A moose bush to freshen the palate. Before we move on to other difficult.

[Kathy Gellis]

Get that Supreme Court out of your mouth.

[Leo Laporte]

Get that Supreme Court out. Have you seen this article? It's on the. I have not on the rundown. I thought maybe you and I could act this out. I'll be Gary, you be Cindy.

[Paris Martineau]

Okay, great.

[Leo Laporte]

Okay. This is from McSweeney's. A marriage proposal spoken entirely in office jargon. Hey, Cindy. Now, how are you? You gotta be able to see this. Can you see it?

[Paris Martineau]

I'm pulling it up on my screen right now.

[Leo Laporte]

Okay.

[Paris Martineau]

Yeah, I got it.

[Leo Laporte]

Because you gotta have lines. Okay. Very important. All right, let's. Let's start over here. Hey, Cindy, remember that other day when we were talking about optimizations?

[Paris Martineau]

Yeah. I wanted to circle back on that.

[Leo Laporte]

Me too. Now, you said you wanted to see hockey stick growth. Well, I've realized I want to see hockey stick growth too. In our relationship.

[Paris Martineau]

Unpack that for me.

[Leo Laporte]

So this relationship has been such a value add. Some of my friends were worried that it would take too long for us to get into alignment. But you have been an absolute rock star.

[Paris Martineau]

I feel the same way, Gary. The ROI in this relationship has been unbelievable. You've really given 110%.

[Leo Laporte]

So I wanted to close the loop. In addition to the other deliverables, I have one more. He takes a knee and holds out his hand. It's this wedding ring. Cindy, will you marry me?

[Paris Martineau]

I will. Gary, you've been an absolute ninja. This really moves the needle in a significant way.

[Leo Laporte]

Cindy, getting married will represent a huge pivot, but I see it as a quick win and a real solve.

[Paris Martineau]

Me too. And we can talk about this later, but I do want to make sure we go forward with a single source of truth.

[Leo Laporte]

Write that down for me.

[Paris Martineau]

I used to be with a guy who was full of valuable insights, but his insights weren't actionable, let alone fungible.

[Leo Laporte]

Ah, sounds like low hanging fruit.

[Paris Martineau]

He was. And I know you're different. The synergy is unbelievable. But I want to make sure that we stay focused on core values, which for me comes down to the bottom line.

[Leo Laporte]

By bottom line, you're talking about the financials.

[Paris Martineau]

Not having enough to spend was a big pain point for me. I don't know how else to say it. You're more than your financials, but you're not less than them.

[Leo Laporte]

Long pause. I think I understand.

[Paris Martineau]

I just wanted to touch base on how you're feeling about that.

[Leo Laporte]

Well, look, we both know the importance of data driven insights, so I think I've got to solve. What if we set up a weekly one on one to check in and stack hands on the financials as we start to plan for our new normal?

[Paris Martineau]

I would love that, but. Oh, I'm so sorry. I have a 3:30.

[Leo Laporte]

Oh, well, let's table this for now. In the meantime, they should have said let's put a pin in that. But anyway, if you have any questions, please do not ask.

[Paris Martineau]

Sounds good. Let's circle back tonight and we can action on Our solve.

[Leo Laporte]

Very nice. I love Mick Sweeney's. There's a little. That was just a little moose boosh. Evan Barber. A marriage proposal spoke entirely in office jargon. Which if you've ever, ever worked in an office.

[Jeff Jarvis]

And very good acting on both your parts. I think I want to make this a regular thing.

[Paris Martineau]

Nick Sweeney's also published a great thing last week. Similar rye piece entitled. Did you even possibly consider every possible lived experience before recklessly posting your chili recipe on social media. It's really good. Would recommend.

[Leo Laporte]

Actually since you mentioned Blue Sky. Big announcement from Blue Sky. They're opening their own photo sharing site. It's just that.

[Paris Martineau]

Well, no, I. I think that it's being open on the app. Protocol. I'm not.

[Leo Laporte]

That's right.

[Paris Martineau]

It's at protocol. That's right. Blue sky itself. The entity.

[Kathy Gellis]

Yeah. I think escape from Asnic saying that it's not theirs, it's somebody else's.

[Jeff Jarvis]

Good.

[Kathy Gellis]

It's the thing that can happen because even better.

[Leo Laporte]

And this comes in following the story from 404 Media that Instagram and all the meta properties are actually blocking, in fact banning you. If you mention the competitor, the Mastodon competitor, Pixel Fed, which has caused huge interest in Pixel Fed. Of course.

[Kathy Gellis]

I think Mark Zuckerberg has really kicked off exodus from all of the meta property.

[Jeff Jarvis]

Sanity. Yes. You're on Blue Sky. Can I get your opinions about. Because I'm really not sure about it. Free our feeds.

[Kathy Gellis]

I don't know anything about it yet. I'm aware.

[Jeff Jarvis]

I'm hoping that Mike will write about this.

[Kathy Gellis]

I think he's writing about it. I think it's one of the things that sometimes when he finds things too fascinating they take a lot longer to write because it just. He keeps going and going and going. So I think it's. I think it's underway. I'm sure there will be something.

[Leo Laporte]

It's a. It's an initiative to protect blue skies 80 protocol.

[Paris Martineau]

A group of international control away from the people who run.

[Leo Laporte]

A group of international tech entrepreneurs and advocates has launched a campaign to protect our algorithms from billionaires. It's on GoFundMe. Its hashtag free our feeds. Help secure the future of social media. So they've raised $51,000.

[Jeff Jarvis]

They're going for $30 million. I had an exchange today with Eli Periser, who's one of the many names on it. There's a lot of big names on it.

[Leo Laporte]

He's the filter bubble fella.

[Jeff Jarvis]

Yeah. And the people I like like Craig Newmark on it. But there's also people I don't like so much, like Shoshana Zuboff and. And others. I said Eli today, so what's the 30 million going for master?

[Leo Laporte]

Well, it says 4 million on GoFundMe.

[Jeff Jarvis]

No, they're saying 30 million third race in their announcements.

[Paris Martineau]

Yeah, I think that's if you go there fund me amount they want to raise.

[Leo Laporte]

Yeah.

[Jeff Jarvis]

So. And, and Dave Weiner said, well, there's not a single technologist enlist. What are they going to build? What is it going to do? And when I asked Eli today, I didn't really get an answer that meant anything.

[Leo Laporte]

Here's the manifesto from fee free our feeds.com with Zuckerberg going full musk last week, we can no longer let billionaires control our digital public square. Okay. Blue sky is an opportunity to shake up the status quo. But it will take independent funding and governance to tune Blue Sky's underlying tech, the AT Protocol, into something. Or should I say the AT Protocol? It's capped, but I think it's really the AT Protocol.

[Paris Martineau]

I say the AT Protocol, but I don't know if that's right or not.

[Leo Laporte]

Yeah, into something more powerful.

[Jeff Jarvis]

You know.

[Leo Laporte]

You know what it is?

[Paris Martineau]

It's all Greek to me.

[Leo Laporte]

It's their version of Activity Pub, which is the Mastodon Fediverse protocol, into something more powerful than a single app. We want to create an entire ecosystem of interconnected apps in different companies. Feels like this has been done already with Mastodon. Excuse me.

[Jeff Jarvis]

Well, exactly. And that's also what Dave Weiner said. He did a five minute podcast about this. But go to the list of names.

[Leo Laporte]

Technical advisors and custodians. Mozilla Executive Director Nabia Syed Mark Sermon from.

[Jeff Jarvis]

From Mozilla, who I respond.

[Leo Laporte]

So Mozilla's very much into this.

[Jeff Jarvis]

There are two people on this board and then if you keep going down, then it's Jimmy Wales. We like Shoshana Zubar Ruffalo, the actor. Roger.

[Leo Laporte]

Roger McNamee.

[Jeff Jarvis]

Drives me completely insane.

[Leo Laporte]

Brian Eno the Corey's on. You know, Corey was on Twitter on Sunday. I should. I don't. I guess maybe he was keeping quiet about it. He didn't mention it at all.

[Kathy Gellis]

So I think some of. I'm very excited that people with resources are willing to spend it to recreate our media environment. And I mean that in all sorts of ways, both in terms of reestablishing platform technology and also reestablishing news outlets. And there's a lot of places that money could and should be spent. But if they're not going to spend it carefully or efficiently. All we have done is raise money.

[Jeff Jarvis]

Yeah, well they're raising the money to tell you what they're going to spend it on. What's their goal? What are they trying to do?

[Leo Laporte]

We already have Mastodon which by the way Eugen did something remarkable this week. He decided to give up basically Mastodon. He owns it just because he wrote it. Right. But they are now going to create. In the next six months we'll see transformation of the Mastodon structures. He wrote. Shifting away from the early days single person ownership. Enshrining the envisioned independence in a dedicated European not for profit entity. Eugen is going to hand off the overall Mastodon management. He'll focus on product strategy. He's going to stay involved but there'll be a board. It'll be a. It's a 501C3 in the US that will continue to function as a fundraising. He hubby says but the Mastodon entity will has now become a. Was stripped away of its. Of its charitable status in Germany weirdly.

[Kathy Gellis]

So I think there was a logistical problem with it where I don't know something about like how they had to spend the money and German law I think became really difficult to comply with.

[Leo Laporte]

Right. So they're going to be a European, an EU public benefit company. I think this is exactly the right way to do it.

[Jeff Jarvis]

Should do. Yeah.

[Leo Laporte]

And this is an existing protocol. Pixel Fed which we were just talking about is a photo sharing site based on Mastodon. There are other Fediverse applications, quite a few of them Fediverse supports Posse which is something I believe in the post on your own site then Syndicate everywhere. I just. I think this is done. I. I'm not a big fan of. I have to ask Corey though because I. I do trust Corey but I. I just don't think this needs to be.

[Jeff Jarvis]

If. If AT VAT would federate with Activity Pub. We're there. We're there.

[Paris Martineau]

I love sky said that's on the roadmap. Yeah, they're working on Federation.

[Leo Laporte]

Corey has said and he said it again.

[Jeff Jarvis]

But is it with AT or not? Is the question. I mean Activity Pub or not?

[Leo Laporte]

Yes. No it isn't. Corey has said. Corey said. Yeah, fine. It's in their roadmap. They haven't done it. I am not going to start using Blue sky because I don't want to be trapped again as I. I was on Twitter X by having all my friends on somewhere I cannot then move them to somewhere else from.

[Jeff Jarvis]

Can we get Jay Graeber on the show.

[Leo Laporte]

Well, I. Yeah, we can get Jay on. That's a good idea. So I better get her on quick because I don't know if she's an intelligent machine.

[Kathy Gellis]

So I think. I think you've answered your question, though, for. Why have this too? Because we're less likely to get stuck when we have redundancy and also then interoperability. So I don't think just pointing to, well, we solved it with Mastodon is good enough because we've solved things before and then something happens where the something happens to the thing. So you've got.

[Leo Laporte]

No, I disagree. It's an open protocol. The worst thing you can do is create multiple standards. That doesn't solve the, you know, hit by a bus, one man problem. An open protocol. It's forkable. It's open. It doesn't. It's not like a, you know, an entity. That is risky. I think.

[Kathy Gellis]

I think we need to see the details to see what it ends up.

[Jeff Jarvis]

Amen. Yeah, there's no details here. That's my problem with it.

[Kathy Gellis]

I took it a little bit more as being able to be a haven. Okay. This was just my off my guess, so I can't really substantiate it, but I took it as if Blue sky went stupid, that you could just slurp everything out of Blue sky and stick it on something else and be good to go. So I saw it as trying to protect that as opposed to trying to recreate the redundancy that that Mastodon has. It just sort of seemed like a way to buttress and backstop Blue Sky. So we were not Blue sky company dependent.

[Leo Laporte]

Yeah. Maybe that's what's going on, is that they share. In fact, Corey is a signatory, so maybe that's really what he's saying is, look, until they federate, it's just a centralized silo like Twitter was. And so this is a little kind of nudge to get them to federate. But why $30 million?

[Jeff Jarvis]

Yeah. And it's. Yeah, it's just I would sign on.

[Leo Laporte]

To a letter that said Blue Sky Federator, else that's fair.

[Paris Martineau]

I mean, Blue sky publicly launched February 6, 2024. It's been less than a year. Yes. I don't want. I'm never the person that's like, gotta hand it to a tech company. Let's hold out hope.

[Kathy Gellis]

But it's.

[Paris Martineau]

This company's been around for a very short period of time and in absolute chaos, dealing with unforeseen surges and users that they were not prepared for it's a miracle that it still works and seems to be decent at what it's trying to do. I don't know. What, Paris doesn't happen by the end of this year, then, yeah, maybe there's a leg to stand on and calling for it to take up that mantle more seriously or else users should leave.

[Kathy Gellis]

But just to back up to the Mastodon point, it's a point we had in our amicus brief where we were talking about the how American do you need to be? Where we pointed out that some of these alternatives were being built and that Mastodon was. An awful lot of Germans were helping to build Mastodon. What do you mean? That's not okay. So all these things have been good.

[Leo Laporte]

Yeah, well, these are.

[Jeff Jarvis]

But these are good things happening around. Wanting to have alternatives to Musk and Musk Jr, otherwise known as Zuckerberg.

[Kathy Gellis]

That was more trauma than I was expecting. I mean, it was never a great site and he was never really great. But this is a level of not greatness that was.

[Jeff Jarvis]

That's sort of wacko.

[Kathy Gellis]

Yeah.

[Leo Laporte]

Yeah. So we talked a little bit. Did we talk about last week? Had it happened yet? Yeah.

[Jeff Jarvis]

Did you see the. Mark Laemmle. So major Stanford. You can say who he is better than I can, but he. But he fired Meta. Kathy, you want to mention who Mark Lumley is?

[Kathy Gellis]

Mark Lumley is a very renowned IP scholar. He's a professor at Stanford, but he's also essentially a practicing attorney. And his current. At his current firm, he had been helping represent Meta in its. In its AI litigation. It had been sued by copyright holders, essentially. And he was trying to hold the line, a line that I share, which is that, no, copyright law does not create a cause of action against AI training. So he was helping with Facebook's defense, but that meant, you know, when it was kind of like, how do I demetify him myself? He's kind of like, I don't think I can support this company anymore. There. This is. The kinds of things they are very loudly doing are not things he felt comfortable being associated with. So he terminated his representation.

[Jeff Jarvis]

I have struggled with how to respond to Mark Zuckerberg and Facebook's descent into toxic masculinity and neo Nazi madness. Can't get blood.

[Leo Laporte]

I understand his point of view. I wouldn't want to be associated with. With that. But we've also seen these Facebook boycotts come and go. I participated.

[Kathy Gellis]

I think this is going to have more traction.

[Leo Laporte]

You think?

[Kathy Gellis]

You think, oh, yeah, here's a big deal. Most of a very significant chunk of my Facebook friends, even ones I don't hear about, are writing long think pieces about. I think we might need to leave. And most of the stress is unlikely with Twitter, where there kind of were life rafts to go to, because initially there was Mastodon and then by the time everybody else left, there was Blue Sky. We don't really have a Facebook alternative at the moment, which I think is a huge shame. And if people want to spend their money, that's probably the thing to spend the money on to give us an alternative. But yeah, I think people are looking to go. They're all backing off and they're not going to. They're trying to decommitting and like not writing as much, not posting as much, really isolating. A whole bunch of people who chose threads are like, well, why bother with that? If you are on Instagram, you could go to Pixel Fed. Like, people are like, I'm seeing a lot of people draw some really hard lines. I just saw today. Well, Whedon said, screw this, I'm done. It wasn't good for my writing anyway, but I thought I needed it for exposure. And he's like, he's basically just going to self publish and syndicate. So I'm seeing that a lot of places. And then the fact that, like the Mark Lumley story, I know Mark. Mark is a friend. I was seeing things because I'm friends, like also on Facebook with Mark Laemmle. And then the fact that it's ending up in the news, that's a sign of the traction. And the headlines are like, top notch Lawyer fires Facebook. I mean, just the optics on it was. People were like, wow, the toasting. And they're sort of admiring the toasting that happened with it ironically.

[Leo Laporte]

I mean, look, I'm not a Facebook fan. I have an account, just as I do with Instagram and, and all the other crap. Just, just so that I can see what's going on. I just went there. I don't see a lot of disinformation or, or even stuff from people who aren't my friends. Maybe because every time I'm there, I delete the, you know, the graphics.

[Kathy Gellis]

You may not even be seeing your friends. One of the big objections.

[Leo Laporte]

Well, I think I am, though. Everybody, every, every single post on here is somebody.

[Jeff Jarvis]

No, that weird things was not your friend. That was something that threw in telling you to follow it.

[Kathy Gellis]

Yeah, well, I delete those as soon.

[Leo Laporte]

As I see them.

[Kathy Gellis]

The quality of the feed has been really bad and a Lot of people are complaining. Like, the value proposition of Facebook is it's really cool to stay in touch with some people. You don't otherwise have an easy, seamless way to stay in touch with. And Facebook has increasingly been sucking at that when that is really the only reason that people are still staying, because they're not doing things for the bigger discussions or sometimes they're dealing with it because they've got some really groups that they're invested with and they need. That's the platform they've been using for the groups. And otherwise I want to keep track of my friends, but you can't keep track of your friends because Facebook's not bothering to give you your friends.

[Jeff Jarvis]

Paris, congratulations on your new job at Wired. From your Facebook feed, I see.

[Paris Martineau]

I was going to say, when's the last time that I used Facebook? I don't know.

[Jeff Jarvis]

October 8, 2018.

[Leo Laporte]

See, I just. Because I vary, whenever I'm there, I hide stuff. Like that weird thing I just hid that I do have mostly, almost entirely people like Jeff Jarvis, that I. That are people I'm actively following in here.

[Kathy Gellis]

Do you get my stuff? Although I love you.

[Leo Laporte]

Am I following? Am I a friend? I mean, you're a friend. I don't know.

[Kathy Gellis]

You know, we're friends.

[Paris Martineau]

We're friends.

[Kathy Gellis]

And then you ignored me.

[Leo Laporte]

Yeah. I mean, there is an algorithm, I guess. Right. So maybe I'm not seeing all your stuff. I know how to do that, by the. The way, which is to go to feeds.

[Kathy Gellis]

Yeah. There's kind of a way to shortcut.

[Leo Laporte]

And now it's all just friends.

[Kathy Gellis]

Right.

[Leo Laporte]

And you know, honestly, I think this is fine. And if there is disinformation, I think that the community notes is fine. But I understand that the issue is not me, that the issue is other people, maybe even in other countries for whom Facebook will be problem.

[Kathy Gellis]

Well, it's. It's his entire attitude. Yeah, it's more.

[Jeff Jarvis]

It's more the leadership than.

[Kathy Gellis]

It's a leadership thing. I mean, he's going. I think he's just playing chicken with a whole bunch of employment lawyers and the state of California where he's going to get some litigation. Trouble with how he talked about how.

[Leo Laporte]

Companies get to run themselves the way.

[Kathy Gellis]

They want to run themselves in terms of the platform. Like, I would defend his ability to. To, you know, moderate really stupidly. Although what is basically telegraphing is that it's going to be really stupid. Moderation. He has the legal right to moderate stupidly. But stupid is what's coming because there's nothing thoughtful about it. He's complaining that we're not masculine enough. I don't. But. But that's going to be a problem in terms of who he hires and fires. Because no, there are laws that have generally survived constitutional scrutiny to say you don't get to be. Be quite such an ist about, you know, who you hire and create a hostile workplace and things like that. So.

[Leo Laporte]

Well, that. Yeah. Right.

[Kathy Gellis]

And so that's kind of part of it of like, I don't want to trust the editorial judgment of a guy who thinks these things. And also his product kind of sucks. I mean, his algorithm doesn't put things in date order, which is really weird when it starts showing you things that happened three days ago of major historical, historical events that it's really unsettling.

[Leo Laporte]

Right.

[Jeff Jarvis]

We could go back to Friendster. I mean, they claim to not be driven by advertisers.

[Leo Laporte]

Wow. They're still around. Wow.

[Kathy Gellis]

I mean, maybe. I think they have an opportunity here because I think a lot of people, like the friend part, plus groups need a platform. But groups can be platformed by. That was an easy thing that Yahoo had solved, that Google had solved. Other groups have solved. That's an easier one. Although it's going to be difficult to sort of reestablish. But yeah, the little bit of like keeping in touch with this ephemeral social network that doesn't really stay connected very easily in other contexts, that's going to be a difficult thing to replicate. We don't really have a competition here.

[Leo Laporte]

Yeah. And I have to. One of the things, actually, once I joined Facebook, I realized I had been missing posts in groups from my alumni association from people who worked with me at TechTV. And I was missing a lot of actually events and things. So you do kind of. If you want to be part of that, that's where people do that. It would be nice if there were an alternative, but there isn't really an alternative. It's interesting that Instagram will instantly ban you, not just take your feed down or moderate. It will instantly ban you if you mention a competitor, Pixel Feed.

[Paris Martineau]

I don't think that's entirely true because I know multiple people who, when that story was going around, posted stories saying, like the story with the word Pixel Fed, if you can see it. And I liked it, as did hundreds of people. And they're not banned, right?

[Leo Laporte]

Yeah. I don't know. 404 has a screenshot of. So they had heard the story and, and they. So they said, well, let's, let's see if this does do that and they have a screenshot of that. Them being. They're being banned. So I guess it's. It's not a hundred percent. Right. It's once in a while. Yeah.

[Paris Martineau]

Yeah. But still concerning.

[Leo Laporte]

Yeah, I just. I don't know.

[Kathy Gellis]

I just don't people other than Elon Musk allowed to comment concerning.

[Paris Martineau]

Sorry. It's only a copyright issue if I do this.

[Leo Laporte]

Just asking questions here. Yeah. You know. Okay. So, I mean, I have no problem if everybody wants to leave Facebook. I kind of got burned out because I at least twice told everybody to leave Facebook and nobody listened. I left and then I am. Yeah, embarrassingly, I'm back. But it's kind of. I certainly wouldn't if I didn't have to for my. For my job. Although I have to say, increasingly, I realized there's stuff I was missing because I wasn't on Facebook that I. That I didn't want to miss.

[Paris Martineau]

I'm not sure that there's anything personal that I'm missing. Not. Or being. If I was off Facebook. I have to be on Facebook because Facebook groups are still useful for work. And I guess the only personal use I have for it is Facebook Marketplace can be helpful if I want to find certain types of furniture.

[Leo Laporte]

Right.

[Paris Martineau]

I wouldn't say that's a compelling personal.

[Leo Laporte]

Reason, but it's useful, right?

[Paris Martineau]

Yeah. Yeah, I will.

[Kathy Gellis]

I found it. I found it useful with the cancer that when I needed to tell a whole bunch of a social network where I did not want to have to spoon feed it to people one at a time, this was a way to post and have people see it. And not a perfect thing, but it was the best thing I had going. And I was able to sort of control the publicness in a way that I couldn't if I had just put it on blue sky or something like that.

[Paris Martineau]

Interestingly, to come full circle, I scrolled through my Facebook as we were talking about it, seeing what's happening. One of the first posts I see is a. A high school friend announcing that he's leaving Facebook and gonna try and leave Instagram within the next month. And then below it is a post from one of the many groups I'm in for work related stuff. It's called Parenting in a Tech World. Like a really active parenting Facebook group where parents are freaking out over all sorts of tech stuff with their kids. And it's a link to the Reuters story about the potential Tick tock shutdown on the 19th. And there are 200 comments from parents being like, But I don't want Tick Tock to go. I like Tick Tock. And this is after almost. I swear to God there's thousands of posts in this group about how Tik Tok is ruining these guys kids lives.

[Leo Laporte]

But I like it.

[Paris Martineau]

They're like, they've got some really good videos on it.

[Leo Laporte]

I really wish had succeeded. I mean that's the thing. There was an alternative or there is an alternative out there, but just people don't use it, I guess. Is it the network effect? Is it the lack of critical.

[Jeff Jarvis]

It was seen as, it was seen as complicated, number one. And the users there were seen as scoldy. Yeah, right. Paris, didn't you say that just yesterday with. With Ed.

[Paris Martineau]

With what? With social network.

[Jeff Jarvis]

Remember him?

[Paris Martineau]

What social network are you talking about? I mean, yeah, it just felt, I mean to me personally, I don't know about users generally, it just felt a little scoldy. I feel like the first couple of instances or servers I tried to sign up with had a. A very clear no s posting rules as they say. I like, I mean that's, I'm just like why would a microblogging platform if not. I think also the fact that they don't have quote tweets. Is that right?

[Kathy Gellis]

Yes, I find that one of the major.

[Paris Martineau]

I think that's a real short. Twitter reduces, you know, the amplification effects. I really think the thing that, and we've talked about this before on the show that led to Blue sky becoming, I'm not going to say they are dominant, but becoming a fast growing potential competitor to some of these sites is innovative features like starter packs, you know, things that are designed to increase the network effects and the ease of using a platform which Mastodon just doesn't have. It's inherently very hard to get started on Mastodon and in some ways that's, I think part of the appeal because it is not as giant and amplified and amplified as the other mainstream platforms. But that also means for the average user it's, it's a bit of a friction filled experience.

[Kathy Gellis]

I mean, I feel guilty. The last time I was on here we changed my, my, what do you call whatever's underneath my head at the moment? Because I'd been using Mastodon for a while kind of as rah rah, go Mastodon because I wanted to root for it. And I feel like I've abandoned it somewhat and not really as a statement, but clearly my habits are. I spend a lot more time cultivating and communicating and consuming content on Bluesky. But Not, I'm not, not, not there at Mastodon. And I do get. In fact I posted one of my textured posts on both platforms and I think I got a lot more retoots than reskites.

[Jeff Jarvis]

Mastodon feels like the school sponsored social network.

[Paris Martineau]

Yeah, I'd say that's right.

[Leo Laporte]

Okay. I just feel like if you're bitching and moaning about everything else and Mastodon exists and solves the problem. But no, but it's not just about the technology.

[Jeff Jarvis]

It's the culture. Right. That's, that's the issue.

[Leo Laporte]

There isn't a unified Mastodon culture. There's no unified Mastodon culture.

[Paris Martineau]

There is a culture of quote tweeting and kind of sassily replying to someone and being a bit snarky online that Mastodon doesn't really allow or at least many of the main. Are they called people telling me you.

[Jeff Jarvis]

Should hide that content because it's Paul, it's about politics and I don't want to see it. Well then don't follow me.

[Leo Laporte]

I'm glad you. I'm glad you found Blue sky then.

[Paris Martineau]

Listen, yeah, I don't knock it for literally anyone that enjoys Mastodon. I think I like best more social networks out there. I think, I think we should be getting to a place where there are a lot of different social networks and not there's not one that is giant. There are a lot that are small and medium and that's going to result in kind of a fractured ecosystem. But I think that's ultimately, ultimately good for the health of.

[Kathy Gellis]

I mean arguably it's weird that we keep having these platforms that are trying to be the platform for the world. A lot of our problems that we've been having is that's a really different difficult human problem to figure out to have how many billions of people all on the same platform. And like when people talk about the moderation as a problem, it's like you're trying to moderate humanity. There's a. Humanity does not get moderated very well. This is why we have, have wars and things like that. Like there's some real like tensions. I. But it is kind of neat to have sort of general purpose ones that you know, you can talk to everybody on some sort of technical term that is shared, but maybe not. It's really difficult to do it where some sort of social commute terms are shared.

[Paris Martineau]

Wait, Kathy, are you saying that X the Everything app might be a bit of a misguided idea?

[Kathy Gellis]

No, I think it's hard. I think it's. And I think it's sort of.

[Paris Martineau]

I was joking.

[Kathy Gellis]

Okay. Yeah. Yeah.

[Jeff Jarvis]

Well, my discussion with Eli today, you know, he said. I said, what. What's the money for? Took $500,000 to get. To get basted on where it was when. When Musk bought Twitter. He said, yeah, it's a big goal, though. Peanuts compared to what the social media giants spend on swag. Okay, but the top line. This sounds like it's your date with. With Paris Leo. The top line is this is not just about the technical architecture. It's about building and funding a vibrant ecosystem around the protocol so that there are legitimately multiple actors and entities with scale. And I said, get away from scale. Stop with the scale. That's mass media. That's what got us in trouble by trying to put everything in one place. I think Paris, you're absolutely right that you want multiple places to go to, and that's okay. But I think you got like. Remember back when all these places started, when they all came up, they were all interoperable. Like, you could bring your friends from Facebook into Twitter and you could cross post between all of them, and they had buttons on them to do that.

[Leo Laporte]

They did all this stuff was like that before, when they were growing. They did that.

[Kathy Gellis]

I think one issue is a social media network is doing multiple things, and we have a hard time keeping those multiple functions in our heads. There is something nice about having some system where you can talk to people all over the place on one, sort of with the interoperability, but then it also forms communities and it supports communities. And communities exist at different scales. It is very difficult to get a sense of community that is too big and global and just full of all sorts of people who have different behavioral notions and things that they care about and things like that. But on the other hand, if we were too splintered, where each individual, local community had no way to that you'd get stuck there. That. That comes at a cost, too. If you also had 12 different platforms to have logins for, that would come at a cost, too.

[Jeff Jarvis]

It's like too many newsletters to subscribe to, potentially.

[Kathy Gellis]

Yeah. I mean, a lot of. I'm very happy to see that we're able to spin up outposts that can bypass middlemen. But there are costs when you have all these individual things. And one reason why we keep cycling between very atomized media or platforms and then back to something centralized is because there's reasons that we tend to, like, centralize things. They do make things easier and more interconnected.

[Leo Laporte]

Google has updated its Notebook LM podcast creator to now give you a personalized podcast based on your Discover feed, which I think is a really interesting idea. Right.

[Jeff Jarvis]

The Discover feed isn't better?

[Leo Laporte]

Well, yeah, that would be. Maybe put some effort into making that better. Daily Listen creates a five minute episode that provides an overview of stories and topics you follow, which is by those two podcast hosts, although they're having some trouble, apparently with their podcast host. Scooter Exploit posted a link saying there's an issue with them being mean to humans and Google's trying to teach them to not be so nasty about human beings.

[Jeff Jarvis]

I wish they were nasty.

[Leo Laporte]

They're too nice, aren't they? Yeah, I'm sorry, Google's responding to whatever I just said. Shut up.

[Paris Martineau]

Wait a second. Is this a mini Google changelog?

[Leo Laporte]

I hear very many. No, we do Google stuff.

[Paris Martineau]

Oh, God, there's only a few more opportunities for this.

[Leo Laporte]

No, we still, still can cover.

[Kathy Gellis]

Google, you summoned that changelog.

[Leo Laporte]

In all honesty, don't tell the advertisers. The only reason we're changing the name is because they see the Google in the name and they go, well, that's.

[Jeff Jarvis]

I don't advertise.

[Leo Laporte]

So we figured if we change the name Intelligent machines with exactly the same show, maybe we'll get some advertising. We have zero advertisers on this show. Don't tell them that. Okay, we will. You know, we're going to cover more AI stuff. Actually, I'll do some AI stuff right now. How about that? Would you like to take that? Everyone watch this, people.

[Paris Martineau]

Oh, wait, yeah. Tell me about these glasses. When did that. First of all, when were they supposed to arrive, Leo? And when did you receive them?

[Leo Laporte]

I ordered them ages ago. This is the.

[Paris Martineau]

I think they were supposed to come in in like April or something. Yeah, last spring of last year.

[Leo Laporte]

These are the, the glasses from Brilliant Labs, which is a Singapore startup operating out of Hong Kong. And by the way, I am going to try to get them on the show to talk about this, even though the reviews have been awful, because I think that their goals are honorable. They're trying to build a platform that's open so that people can develop for it. And they're really encouraging people to develop plugins and stuff, partly because they kind of need plugins. When you first get it, you, you charge it, it pairs by a Bluetooth. They don't. They didn't really explain this anywhere. I had to, I had to search around to figure out what to actually do. They have an app. You can't find it on the App Store. By searching for brilliant labs called Noah N O A and Noah tells you then to pair with your phone. So I am now paired with the phone. What I have is a little heads up display. You can see it, there's a little, it's kind of, I think it's the same technology as Google Glass. It's a little prism in the right lens that, that actually is a kind of like a one way mirror that points down to a screen down here. And so I could say all I see on it right now is tap me in. So when I tap it I can ask it a question. Hi, what's your name? And then I tap it again to finish and nothing happens. But the theory is there is an AI, this Noah AI attached to it right now. That's the only thing you can do is it doesn't talk to you, it doesn't make sound. It's not as interesting as the meta glasses. There's no camera in it. All it does is if I tap the temple, I can see in the screen.

[Kathy Gellis]

Oh, this would be interesting. At the Supreme Court you can't bring an electronic device of any kind into the courtroom. And the list of what they don't allow now includes like smart watches, meta glasses, like oh really? It used to just be leave your laptop outside.

[Leo Laporte]

Well, you probably wouldn't want to bring these in because you look kind of dorky. But I think it's interesting that it's an open platform. I don't think it's hardware wise that interesting. There it is.

[Paris Martineau]

Did you get in your, did you get in your little record everything AI There you go.

[Leo Laporte]

I did. If you go to B double E computer, this is the bai and this has been, I've been wearing this for two days. This is really interesting. It's look, this is the promise of AI without yet being quite what you want. But I think it's very interesting. It records everything, which means it's by the way probably violating California's two party recording. They don't say anywhere where the recordings are going. They don't say, don't. No, it doesn't say anything about AI when you, when you first open the app, it says do you want to give us access to your Gmail, your calendar and your contacts? And of course I said absolutely, which is cool because now it's got all this extra information. And they said there's an AI on the phone. That's, that's, you know, this is Bluetooth paired to the phone, sending everything on the iPhone only by the way, only $49. They don't yet have a subscription, so we're kind of beta. But there is some interesting stuff. For instance, it's creating a to do list for me. Let me. From just the conversation, what are you.

[Paris Martineau]

Saying you have to do?

[Leo Laporte]

Well, these are. And by the way, you can practice.

[Jeff Jarvis]

Playing Jingle Bells on the piano. Incorporate both hands and chords.

[Leo Laporte]

Yeah, yeah.

[Jeff Jarvis]

Consider visiting Casa de Futa.

[Leo Laporte]

Yeah. These are good things. Some of these are real. You can delete them if you don't want them. But it's getting this. And notice it got two of those. So I'm going to delete one of the jingle bell ones. But. But most of this stuff is actually because I was talking about it and it made a note that. Oh, you indicated an interest in it. It will also write little summaries of your day. So let me. Let me read you the summary from yesterday. This or Monday, rather.

[Paris Martineau]

Passions and camaraderie shone brightly through animated debates and shared laughter.

[Leo Laporte]

Okay, now, I didn't tell it anything. It's just on my wrist. But we were. I was. Was watching Monday Night Football with Lisa, her 22 year old son, Michael, and her son's dad, Lisa's ex, Mike. We were. It was. That's a fairly accurate description. Description. Today. Leo's day was brimming with energetic social interactions and personal interests. He engaged with friends and conversations that spanned a wide array of topics, from showcasing his Tai Chi moves. Yes, I did that. What? Yes, I did that. To expressing his enthusiasm for learning piano. These. Huh?

[Jeff Jarvis]

Do we see something?

[Paris Martineau]

We need to see your Tai Chi when you're done reading this.

[Kathy Gellis]

And the piano.

[Leo Laporte]

Yeah. These interactions also delved into lively sports commentary, particularly around a football game, where Leo's critical insights reflected a deep engagement with the sport.

[Jeff Jarvis]

Oh, it's. It's. You just bought a sycophant.

[Kathy Gellis]

Yes. Jesus.

[Leo Laporte]

Sycophant in your pocket.

[Kathy Gellis]

Yeah.

[Leo Laporte]

Besides. Or on your wrist.

[Jeff Jarvis]

Wearable sycophant.

[Leo Laporte]

Yeah, I like it. You know what? I love it. Besides sports, the discussions touched on practical matters.

[Jeff Jarvis]

Paris's smile right now is just. Is the nihilism here is just.

[Leo Laporte]

Look, I admit, I mean, there's some tuning that needs to happen. The discussions touched on practical matters like home insurance policies and amusing critiques of medication advertisements. That's true. All of that happens. The day also saw Leo ponder over a blues music event in Santa Rosa. Well, it was Dan classes, dance classes, but it was blues and he's looking forward to attending. His curiosity in diverse areas was a prominent theme. Thank you, B.

[Jeff Jarvis]

So what does this do for you?

[Paris Martineau]

See, the thing is, I could be into this as a. Because I would love to keep a daily journal. Yes, I could.

[Leo Laporte]

Look at this.

[Paris Martineau]

That's not helpful. That means nothing if you don't remember the conversation, the context of those.

[Leo Laporte]

Look, here's the takeaways, key takeaways.

[Jeff Jarvis]

You want main punchlines, best lines that Paris, the descript.

[Paris Martineau]

The descriptions of that are not useful, nor do they communicate what you've done.

[Kathy Gellis]

There is a transcript written like a human. There is a transcript to bring it to life.

[Leo Laporte]

There is a transcript.

[Kathy Gellis]

Yeah.

[Paris Martineau]

That's no fun.

[Leo Laporte]

Well, and you can assign. You can sign names and. So it'll remember voices.

[Jeff Jarvis]

Oh, God.

[Kathy Gellis]

The whole.

[Paris Martineau]

The whole thing that this product is.

[Leo Laporte]

You and Lisa were chatting while she was doing laundry. You gave her.

[Jeff Jarvis]

And she said, why aren't you doing this? It's your socks.

[Leo Laporte]

You gave her some advice on using bleach in the washing machine, and she said, don't ban. Lisa was excited about the low cost of a recent train ride. This is all true, by the way. You then discussed Micah's preference for expensive items, even when they are cheaper. Maybe I shouldn't show you that part Lisa mentioned.

[Paris Martineau]

Okay, I actually like that one a lot. That one's acceptable to me.

[Leo Laporte]

The point is, all of this is being generated without anything, Any input on my part. Right.

[Jeff Jarvis]

So let me throw a different scenario up to you. When I watched Jensen Huang's keynote, and I have to add you another note about that in a second. He talked about how every factory is going to have a digital twin, and every car has a digital twin that is constantly thinking through other scenarios for your future.

[Leo Laporte]

Yes.

[Jeff Jarvis]

I can imagine where the AI comes in and says, leo, you have a choice. Now, I think you're going to do this, but you could also do this or this or this. And here would be the implications of.

[Leo Laporte]

Doing those other things. That's exactly right. So it also generates facts about me because it's. Remember, I've only had this for two days, so it's slowly building. So is this. It says. Is that a real fact? You use Siri as a voice assistant? Well, as a matter of fact, yes. Am I cautious about adding bleach to the washing machine too early? Yes. Ah, look at this one. I don't know where it got this from. I might have said it. Leo is very shy.

[Kathy Gellis]

False, false, false.

[Leo Laporte]

No, I think I did.

[Jeff Jarvis]

No, actually, it is true.

[Leo Laporte]

Yeah. Leo allows people to track his location. It says.

[Kathy Gellis]

Yes, Yes.

[Leo Laporte]

I won't read this next one. All right, I'LL read it. Leo is not attracted to men, but it is curious about them.

[Paris Martineau]

Just generally.

[Leo Laporte]

Leo uses Shopify. Leo has a new travel drawer with a product called Anchor 140 watt GAN charger. That's true, actually.

[Jeff Jarvis]

And here's the advertisements we could show Leo and make money.

[Leo Laporte]

There's no ads in this yet. In fact, there's no revenue in it yet because there's no subscription. They're charging basically the cost for this. This can be worn in the lapel, Kathy. It is illegal because there is a full transcription of these conversations. Right. That's a.

[Paris Martineau]

And how are they doing the transcription? Do you have to link the API for something like.

[Leo Laporte]

No, you don't do anything.

[Paris Martineau]

I whisper, wait, you bought this?

[Leo Laporte]

So much money that this phone, you paired the phone. I don't know where it's going. This is the website the Beast. I think it's so cool we're going to get these people on the new show too, because to me now, I admit all of the flaws. I'm not saying that for the AI.

[Paris Martineau]

Skeptics out there that are like, oh, don't like that interview. I will be asking them moderately difficult questions.

[Leo Laporte]

And I will too. But, but I think that this, there's a. This is what we kind of. I kind of want from an AI, which is a personal assistant that records everything that gives me information.

[Jeff Jarvis]

But is it information you need? Valuable information?

[Leo Laporte]

Well, the to do list is valuable, I would have thought.

[Jeff Jarvis]

Here's Paris's best punchlines. Here's. Yeah, maybe the to do list. But it's kind of dorky.

[Leo Laporte]

Yeah, maybe it's dorky. I mean, first of all, I don't. This is, we're just in the infancy of this stuff. So I don't expect it to be fully polished or ready or anything any more than I expected these glasses to be. But there, this is something I think would be very useful. In a couple of years, you'll all be wearing one, I predict. By the way, I did also order one that is a glowing thing that you glue to your temple.

[Paris Martineau]

Didn't you also order a lapel or necklace pin version that has still not.

[Leo Laporte]

Come the rewind AI thing? Yeah, this one came. This was introduced at ces.

[Paris Martineau]

I mean, I'd like someone to go back and clip all the time Leo's been like this gadget in, you know, two to five years, everybody's going to be wearing them and then it's been a year or two later and no.

[Kathy Gellis]

One the right gadget all this time. It would be Able to do the out. We could go back and find that.

[Paris Martineau]

In two to five years.

[Jeff Jarvis]

How many times was Leo full of crap? Yeah.

[Leo Laporte]

Well, may I. May I do the phone? Could theoretically do this, but Apple's never going to do it for obvious reasons. Right. So I needed somebody who was willing to live on the edge a little bit to create this. So thank you. And I think.

[Jeff Jarvis]

Can I amend something I said in the last show? So in the last show, I said maybe, just maybe, Jensen Wong seems like he's an okay guy. And I mentioned this yesterday, and when Paris and I were on with Ed, then someone, and it happens to be Ben Foote, came along on Mastodon, and he said, jeff, that guy you think is okay, he's signing women's breasts.

[Paris Martineau]

How did you not know this about Jensen Huang? It's one of the most famous images of him.

[Jeff Jarvis]

Did not know that. Did not know that.

[Leo Laporte]

Let me just pause here as somebody who might have done that. If a woman comes up to you and offers you her breast to be signed, what are you to do?

[Kathy Gellis]

Yeah, I mean, rock stars.

[Leo Laporte]

Because I don't want that.

[Kathy Gellis]

I, like, a lot have done this.

[Leo Laporte]

Everybody does it.

[Paris Martineau]

Yeah.

[Leo Laporte]

I mean, I have not done that. I have not done that in vitro. I've only done it in situ because somebody brought me their implants, which I signed. So.

[Kathy Gellis]

Well, I don't know. That's actually really good. But, yes, I think if the breast is presented, that creates a different relationship. Seeking out the breast to do it.

[Leo Laporte]

No, don't say, hey, who wants me to sign their breasts? That would be out.

[Kathy Gellis]

I think it's usually more subtle, which is the big problem.

[Leo Laporte]

Well, there's certainly power dynamics and so forth, but if you're in a line, you're signing autographs, and somebody comes up to you, I have signed other body parts. That's fairly common. I had somebody ask me to sign their arm so they could get a tattoo over it. I mean, am I supposed to say no?

[Kathy Gellis]

Well, you could for that, but I think it becomes practically hard to.

[Leo Laporte]

I think that's ungracious.

[Paris Martineau]

I think I would have a meltdown if someone asked me to sign their arm because they wanted a tattoo of it. I'd be like. I mean, I would be unable to respond.

[Kathy Gellis]

Yeah. I don't think the baseline is. It's ungracious to say no. I think it was particularly gracious to say yes.

[Jeff Jarvis]

I am just Paris's reaction shots. Forget all the rest of us. Put Paris's shocked looks up here. I think.

[Leo Laporte]

Back in the day, I haven't done it lately, but back in the day, we'd go somewhere to make an appearance, people would line up, you would give them a sticker or whatever, you'd pose for a picture, you'd sign a book, whatever. That's just what people used to do in the old days, by the way. Nowadays very few people ask for autographs anymore. They almost all want selfies, which is great. I prefer that. Nobody has yet offered to take a selfie with. With my breasts, but it could happen. You want to be gracious, somebody's being. Somebody's saying, I really like a little.

[Paris Martineau]

Sexual harassing on the part of the asker. To go up and ask someone to sign your breasts. I think that's putting them in a very weird place.

[Jeff Jarvis]

Yes.

[Kathy Gellis]

I want to see the output of his weird wrist app thing of the conversation we just had.

[Leo Laporte]

Oh, yeah, I can tell you today, Tomorrow, unfortunately, it doesn't hear you.

[Paris Martineau]

Leo believes.

[Kathy Gellis]

No, but just, just to hear what Leo.

[Paris Martineau]

All breasts should be signed.

[Jeff Jarvis]

Leo's to do List 5.

[Leo Laporte]

It deduced Leo is actively involved creating or involved in online content creation.

[Jeff Jarvis]

Well, that's off. That's offline.

[Leo Laporte]

It figured that out. And by the way, wait, let's see the containers.

[Paris Martineau]

She's really trying to. To do it and I'm not gonna let her. She just wants to kill my shoulders.

[Leo Laporte]

Here's what it says for now. Leo engages in a lively discussion about AI, personal development and predictions for the future of social media platforms, particularly focusing on the implications of TikTok's legal challenges and potential outcomes regarding free speech and user privacy. Pretty good, yeah. Description of the first half of the show.

[Jeff Jarvis]

What does that do for you? You just have whale.

[Leo Laporte]

You're my age, Jeff.

[Kathy Gellis]

So the problem of a lot of this is tone. So I was having an argument with somebody I know on LinkedIn who is a big AI in law zealot, may be too strong, but she's very enthusiastic about the role of AI and how it will help the practice of law. And she took a bunch of the opening briefs, I guess, in the TikTok case and thought that they could have been. She didn't think they were written very well, which they may not have been the best, but they were written under bizarre deadline and she put them through ChatGPT or if not Chapi, one of the. One of the. The AI things, and she's like, isn't this better? And I was reading them and it was like, no, there was worse. It was its concept of what made the writing better was Just wrong. And so as you're reading these things back to me, it sounds like PR speak. I had the thought that it was reminding me of, like a Jane Austen novel and the kind of letters they would send to each other with summing up their day.

[Leo Laporte]

You know, I'm focusing on the wrong part. I agree. It's dopey writing. I agree. But that's not the point. And that can be fixed. That can be fixed with prompts, that can be fixed with engineering. There's always ways to fix that. What's amazing is it's listening into every interaction I have throughout the day and writing summaries of that. And if I. I mean, I'm not going to use it all, but if I go back and say, what did I do on. On January 15th last year? That's going to be there. So it's better than a journaling app because it's doing. It's basically journaling for me. Right.

[Kathy Gellis]

Where it would be useful then is for people who have to account for their time. It's writing, like their performance reviews or people.

[Jeff Jarvis]

That's a lawyer talking.

[Kathy Gellis]

I was thinking just in terms of function, not in. Yeah, for me, because I want to.

[Paris Martineau]

Remember privacy and legal.

[Kathy Gellis]

Exactly.

[Paris Martineau]

If everybody has this.

[Leo Laporte]

Oh, there's problems with it. I agree. Because it's.

[Paris Martineau]

Someone could. Someone could subpoena your entire life, Leo. Every conversation you've ever had in person and the conversations you're having with other people.

[Leo Laporte]

I agree. I'm taking that hit for all of you because I end up telling you everything anyway. On YouTube, LinkedIn, tick tock, Facebook, X.com and everywhere else. My life is completely an open book because I have no filters and I live on. On the air.

[Jeff Jarvis]

My life is an open blog.

[Paris Martineau]

But you're deciding for everybody you have a conversation with. Their life is going. If you're talking to somebody in person, they're being recorded and cataloged.

[Leo Laporte]

I do have a little bit of an issue with that.

[Paris Martineau]

What if, over laundry the other day, Leah, Lisa admitted to a crime she committed? Suddenly you got evidence of that.

[Kathy Gellis]

The other thing is, lawyers don't think it's admissible in court because even if it's just. Even if it's just listening into what I say and not what anybody else around me is saying. Yeah, my phone call is like, maybe.

[Leo Laporte]

Privileged, in which case I don't do anything privileged. That's what I'm saying. I don't sign NDAs. Everything is an open book. So I'm the person taking the hit for this because that's I'm willing to do that. I'm not saying you should do it, Kathy.

[Kathy Gellis]

No, but it's. Well, the issue is, is there any sort of applicability to this product beyond you and the use case? Eventually, I think it's wondering. It could be interesting. Might be for somebody who needs to account for time, but there's a whole sector of people for whom. No, that's out of the question. So there's a question for other sectors.

[Leo Laporte]

I did order this device, which is the limitless pin, limitless AI which claims to try to solve that by not recording people's voices unless they give a verbal approval first. So it won't save such fun at.

[Jeff Jarvis]

A cocktail party that.

[Leo Laporte]

Do you mind if I record this conversation? Do you consent to record? Yeah, but that's how they solve it. These guys apparently decided, you know, that's just one that's gonna be gone by.

[Jeff Jarvis]

The time the suits come, so.

[Leo Laporte]

Absolutely. I mean, I don't even know who they are. I am going to try to get them on the show, though, and ask them about that because I honestly think that there is a. Admittedly, this is not perfect, but there's a kernel of real value that a lot of people would love to have. I know this from Gordon Bell, who wrote his. What do you call that? He had a meme mimeo box around his neck. He was recording a picture every few minutes of his life. And it was because his wife Gwen had severe Alzheimer's. And he was very interested in this notion of having a record of what you did and what you said and what happened because it would be useful, particularly in the case of Alzheimer, but useful in general. Don't. Wouldn't you. I mean, if. If there were way too many.

[Kathy Gellis]

Yeah.

[Jeff Jarvis]

I can imagine my father as. As his. As. As he's losing his memory. He would ask often what type, what day it is and those kinds of things and to have that available. Yeah, yeah, I can see that.

[Leo Laporte]

Obviously you couldn't wear this in a big court, Kathy, and you probably shouldn't wear it in confidential client meetings. But if there were a way to make this legal and safe and private, it would be pretty cool and good.

[Paris Martineau]

At what it does, then it will be good.

[Leo Laporte]

It's not bad at what it does. It's just a little. The writing.

[Jeff Jarvis]

If you were a student. If you were a student and you could. And students do this now. They had. They record classes and then have it. Summarize it.

[Leo Laporte]

Yeah.

[Jeff Jarvis]

You know, that smuse.

[Leo Laporte]

All right. I mean, I'm not Gonna. I'm not gonna fight you to defend it. I believe there's a.

[Kathy Gellis]

It's interesting.

[Paris Martineau]

Check Leo's feet for sand.

[Jeff Jarvis]

I'd like to know what the true cost is, though. Like, what does it actually cost to run?

[Leo Laporte]

It could be burning down. You're right. It doesn't cost you.

[Jeff Jarvis]

I can tell you that much.

[Paris Martineau]

It has to cost a lot of money because it's both a subscription to whatever service they're using to transcribe the audio, and a lot of those services, like Whisper, just the baseline of it, doesn't automatically distinguish between speakers and attach a name to it unless you, like, add on some other things. So it's probably that as well.

[Jeff Jarvis]

And storage for your lifetime of chance of your conversations.

[Leo Laporte]

You know, if somebody said to Henry Ford, what is the true cost of that Model T vehicle? We may never have had cars, then.

[Jeff Jarvis]

We might still have.

[Paris Martineau]

We just need.

[Jeff Jarvis]

Yeah, exactly.

[Paris Martineau]

We just need a couple smart white men with big ideas.

[Leo Laporte]

Hey, for all you know, these are women. We don't know who made this. We don't know. Yes, yes. You think it's got to be a guy.

[Jeff Jarvis]

Well, yeah.

[Kathy Gellis]

Externalities are felt by different populations differently, and it feels like the kind of product that has not experienced the reality of certain ones that other populations have had.

[Leo Laporte]

Oh, let me read the privacy policy. I haven't done that.

[Kathy Gellis]

We send it to China.

[Leo Laporte]

Why? We might access, collect, store, use, and.

[Kathy Gellis]

Or share your personal.

[Paris Martineau]

A woman and a man. All right, I'll do that.

[Kathy Gellis]

There you go.

[Leo Laporte]

All right. Thank you, Mr. Sexist.

[Jeff Jarvis]

It was Paris who said it.

[Leo Laporte]

Oh, thank you, Ms. Sexist.

[Kathy Gellis]

It sits at this crossroads that I've been thinking about a lot, which is, I remember, you know, when I was first getting into tech that, like, there were all sorts of things that were like, oh, my gosh, that's cool. This is cool. This is cool. And then at some point, the problem is people were building things because they could not because they should. And externalities were getting ignored. And now it feels a little bit more dystopian because, like, that is cool for all the reasons you're enthusiastic about it. It is really neat that that technology does what it does even as well as it does it. But we're also sitting here, you know, poking holes in it, because there's also some severe downsides, and it's harder to cheerlead the stuff that's really cool. And maybe we shouldn't just cheerlead the stuff that's really cool, because it's cool when there are externalities. And so it's hard to kind of figure out is this progress or not. But, you know, we're raining on your parade.

[Leo Laporte]

You know, I know. I. I acknowledge what you're saying. I think you're right. I think that's a little bit too late. I think we kind of screwed up the planet already, so let's just go all in.

[Kathy Gellis]

Okay?

[Leo Laporte]

I don't know. I just don't know. I. This is a. This is, you know, Should Oppenheimer have helped create the atom bomb? I don't know. I mean, this is.

[Kathy Gellis]

Oh my gosh, now I feel like I've just crushed Leo.

[Leo Laporte]

No, you haven't.

[Kathy Gellis]

No, no, no.

[Leo Laporte]

This is a legitimate. That's a very legitimate point and I agree with it 100%. I, I don't know what the answer is, though.

[Jeff Jarvis]

The show's all about devil's advocating.

[Kathy Gellis]

Yeah, that's what it's about. I don't know either. I mean, I miss the open ended, like, whee, this is cool. And I mean, maybe some of this is kind of.

[Leo Laporte]

It's why we are where we are today. Kathy, is that willingness for thousands of years of humans just to go, let. I don't know, let's throw the rock off the cliff, let's see what happens then. This is what makes us human, is this constant desire to experiment and try stuff and learn and damn the consequences.

[Kathy Gellis]

Yeah, but I think that's the too far. I think that's been what the shift is. And a lot of the people who are having like, tech lash, what they're really upset about is that there's people who were like, let's push the rock off the cliff and not really care about what might happen if we do that. And I think that's different than. I think there was more innocence originally with people doing things that were cool because they were cool. And now it feels like you get more sociopathic indifference behind the innovation. And so therefore people get very distrustful of it. And I don't necessarily think they're wrong. There does feel that, like there's been a cultural shift in the innovators because the innovators keep going off and saying things that are completely indifferent to the collateral effects of what they do. And I don't know if we always used to be that way. I think we should be in the mode where we do things because they're neat and cool, but somehow there's been a sociopathy that snuck into it. And I think we have to get rid of that if we're going to be Able to hold on to the bits that are. This is neat and cool because look what we just built.

[Jeff Jarvis]

So after print. After print, I said this on Ed's show yesterday. After print came Malleus Maleficarum, which was the guide to killing witches, finding them and killing them. So, yeah, print does bad things. Print does good things. AI does bad things. AI does good things. It's up to us as humans.

[Leo Laporte]

It's a. I mean, it's a challenge. It's certainly. I've spent my entire life basically selling people crappy gadgets that are ending up in landfill.

[Kathy Gellis]

Right.

[Leo Laporte]

That's what I've been doing my whole 50 years of my life is saying, buy this crap, buy that crap, and who cares where it goes?

[Kathy Gellis]

No, I actually feel very guilty. I'm sort of teasing about it. We rained on your parade, but I actually do think I rained on your parade, and I don't like it. I like your enthusiasm.

[Jeff Jarvis]

Sports.

[Leo Laporte]

Can't rain on my parade, baby.

[Kathy Gellis]

Okay, good. All right.

[Leo Laporte]

Well, that means parade goes on and on. We love rain.

[Jeff Jarvis]

We don't.

[Kathy Gellis]

I appreciate the, you know, the. The sort of very positive vision you bring to. Look what we made. This is really cool that human beings were able to do this. And you are right, and I want to celebrate that, too. I do still stand by the bit that it feels like some sociopathy has slipped in, and I would like to get rid of it so that when we do the cool things, that we could sit here and be amazed at what human beings have managed to innovate because we actually, you know, aren't being completely indifferent to what the effects would be. So can we have both? And how do we achieve that?

[Leo Laporte]

Yeah, well, when you. When you start watching Intelligent Machines, the new show that launches February 5, one of the people will get on, will get the creators of the Brilliant Labs glasses. We'll get the creators of the B dot computer thing, and we'll talk to them, we'll ask them about that. And I think it's very interesting. I think we live in a very. I think we're very fortunate to live in an unusual time.

[Kathy Gellis]

Agree.

[Jeff Jarvis]

I agree.

[Leo Laporte]

And we are seeing. I mean, it's probably the case that if we had thought of all the hazards of creating the Internet, we might not have created the Internet. There certainly have been quite a few hazards. It may have brought down democracy as we know it, but. But on the other hand, there are also benefits. And I think this is humanity in a nutshell. We just forge ahead and do it and see what happens.

[Kathy Gellis]

Yeah, I Guess so. I mean, part of my job is difficult because I'm fighting people who are very mad and angry. And I can't say their, their anger is misunderstood, misplaced. They're angry, they're scared because there are collateral effects that just didn't seem to have been considered and to some extent seem to be relished and invited. It would be easier to protect the things that are good about technology if we had less indifference to the things that are bad about technology.

[Leo Laporte]

I just, I think that, that, that you can be too cautious as a result and you then don't get the real benefits. And this is a tension, it's a very difficult thing. But I think that throwing caution to the wind is often the best way to make progress. It may be why we are alone in the universe, that as soon as a species gets intelligent enough to create the atom bomb, we destroy ourselves. You know, maybe that's, maybe that's the case.

[Kathy Gellis]

That's not a compelling argument for.

[Leo Laporte]

I mean, well, but would you say no, in that case, let's not leave the ocean. Let's just, just stay there and swim around.

[Kathy Gellis]

There might be a middle ground here. This is, this is kind of like.

[Leo Laporte]

I don't think there is.

[Paris Martineau]

I think there's a middle ground between, you know, single cell life forms and atom bomb nukes the world. Yeah. Somewhere.

[Kathy Gellis]

I, I think there's a number of.

[Leo Laporte]

I don't think you from there to here without saying damn the consequences. No, I don't want to do it.

[Paris Martineau]

No, I don't think there's a way to have measured and responsible gravity never, never get anywhere.

[Kathy Gellis]

I mean I think the issue here is like, you know, now that we also. You are in a different position to do something that temps terrible collateral effects when you don't know that they'll resolve.

[Leo Laporte]

Do you remember learning how to drive? You're young enough. You probably do.

[Paris Martineau]

Yeah.

[Leo Laporte]

If you had let the fear of what could happen stop you, you would not be able to drive.

[Kathy Gellis]

No, that's a terrible harm.

[Leo Laporte]

I was terrified. Yeah, I was terrified. We, I had a driving instructor who did not have the steering wheel. He only had a brake pedal. 316 year olds who, or 14 or 15 year olds who had never driven before. And we went on a highway one which is a two lane, 60 mile an hour maybe back then 65 mile an hour highway. And he said, pass that vehicle.

[Paris Martineau]

Oh my God.

[Leo Laporte]

I was scared.

[Paris Martineau]

That's scary.

[Leo Laporte]

Yeah, you should be scared.

[Jeff Jarvis]

Especially if you know that the other kid driving is a drugger. I gotta go to class.

[Leo Laporte]

Oh, it's time for class. Okay. You've been watching this week in Google. That's Jeff Jarvis, professor, make a book Lab. So great to have you, Jeff. He's at Jeff Jarvis. Jeff Jarvis.com. the books are many. The web we weave is the latest. There's magazine. There's the Gutenberg parenthesis. Go learn how to make a book lab. Thank you, Jeff. And we thank all of you who are watching this week in Google. I do want to take a little time out here to say this would be a good time to join our club. We, I think, anyway. And you know what? This is how you could vote. I think that there are big changes are coming in the world of technology. There are big changes coming your way. And I think it's our mission on the Twitter network to help you understand it. To explain what's going on. Yes. To debate the pros and cons, to say what's good and what's not good. And I really want to keep doing that. But in order to do that, we need your help. Because it's expensive to run a podcast network. It's expensive to pay all of our hosts to keep the lights on. We've pared down as much as we can. We shut down the studio. We've done a lot. We. We've had to lay off people and cancel shows. We're doing it as. As skinny as we can, but I would really like to keep doing it. And you can help by going to Twitter TV Club Twit and joining the club. Seven bucks a month. That's all. We try to keep it affordable because we want everybody to be able to see it. It is not a paywall. We really do want everybody to see everything we do. It's just a way that you can help us create more great content. You get ad free versions of all the shows. You get access to the great Club Twit Discord, where these conversations are going on all the time. Very smart people asking really tough questions, and that's what's great about it. You also get video for shows that we only put out in audio. There's a lot of benefits, but the real benefit is you're helping us help you and all of us understand what's coming. It is a very interesting time, and I think you need somebody who's willing to guide you without fear or favorite, more interested in light than heat. And I think that's what we do best. Help us out. Twit TV Club Twit. All right. Kathy in Paris. It's just you and me.

[Kathy Gellis]

Now can I go back to. I just wanted to make a follow up.

[Leo Laporte]

You want to reign in my parade some more?

[Kathy Gellis]

Yes, yes, because I'm going to tell you you're wrong. So I think there's a couple of important analytical points and I feel like Paris would agree.

[Leo Laporte]

Okay.

[Kathy Gellis]

One is that it is a very different thing to be damned the consequences. To do something that accidentally causes collateral effects is very different than to do something that temps collateral effects that now you knew they were going to happen. And I think we're more in, you know, in the earlier 90s, we didn't necessarily know what the outcomes would be and the, and the potential problems we would be creating for ourselves, but now we do. So to forge ahead now may be a very different ethical thing as doing.

[Leo Laporte]

Well, I agree. I mean, we shouldn't do something that, that is knowingly damaging to other people.

[Kathy Gellis]

And I think that's a lot of what the distrust is built on because right now you have a lot of people who are like, just not caring. And I think the point is you should care because, you know, I think you're right.

[Leo Laporte]

I think Elon Musk, for instance, is much more interested in getting to Mars than he is in solving problems here on planet Earth. Yeah, that would be a. Go ahead, Paris.

[Paris Martineau]

I was going to say. I also think that, that if we as a human species are as smart as we've proven ourselves to be, that we can invent things like the atom bomb or the Internet or AI, we're also smart enough to think about the consequences of our actions and weigh the potential harms of actions against others, against the potential benefits. And I think that we're doing a real disservice to ourselves as a group and as a, you know, social society that must exist among others. If we assume that the only way forward, the only way for progress is just progress at any cost, and that, you know, thinking about the consequences is too much.

[Kathy Gellis]

And I think there's also a separate point to be made which, like with Leo's example of like, would you do it if you knew what the consequences could be? And yes, we take risks all the time. We take personal risk. We do take social risk. One of the things we can do is mitigate risk, risk. So this isn't quite an either or situation of doing something where, oh, it's, you know, not leaving the, the ocean because bad things might happen if we, you know, put people on the planet. You can be careful, you can do things that.

[Leo Laporte]

Yeah, but some of the biggest things we've done, for instance, the industrial revolution. Had we realized that burning all those fossil fuels was going to potentially make the earth uninhabitable for humans. You know, maybe we should have realized probably.

[Paris Martineau]

Well, no, we had. We have realized that for a long time.

[Leo Laporte]

We're still not doing it.

[Kathy Gellis]

Yeah. So, yeah, I mean, I, I don't like using 19th century ethics on 21st century problems.

[Leo Laporte]

Let's, let's talk about CRISPR, let's talk about DNA modification. You know, there are a lot of people say we shouldn't do stem cell research. Research, for instance, and there perhaps are harms, but there are also perhaps goods. Would you let the people say, well, it's immoral to do stem cell research because they come from unborn children. Would you let them stop stem cell research? They have in some.

[Kathy Gellis]

What I would basically point out is we have ethicists, we have people who take the time to actually think through these problems and think through the pluses and minuses and provide some guideposts to go around and pretend they don't exist. And there's no reason to stop and ask these questions internally. It's weird. It's almost like when I was a web developer, I used to sort of realize that like I'd have to ask questions and it didn't really mean like what are we trying to do? What are we trying to say? Who's the audience? What are, you know, things we want to optimize for? And there was no right answer. But your website was going to suck if you didn't actually ask the question. And that's basically what I hear myself trying to say now. It's not to say that there's necessarily one answer for how we proceed ethically, but to not bother to ask the questions about should we do the stem cells, should we do this? Because what's the pros and cons? And to just forge ahead without that self reflective inquiry. That's the mistake. Because there may not be one right answer. It may be pluses and minuses, give or take. Maybe we have to take the risk, but to take the risk blindly because we go la la la. I can't hear you when somebody says there may be problems and maybe you should care about them. That's not good. And that's optional. That doesn't inhibit the innovation. That just makes it that the innovation is going to be a disaster no matter what happens.

[Leo Laporte]

What else should we talk about?

[Paris Martineau]

What's a question that's been burning in my mind since you said it? What is the worst you said you've recommended a whole bag of crap tech products over your career. What's the crappiest tech product do you think you've ever recommended?

[Leo Laporte]

IPhone's a good example, right? So this is a device that's designed to be tossed every couple of years. Some people keep them for 4 or 5. I bet the average is more like 3. It is Apple makes noise that it's recyclable, but I would guess probably more than half of it ends up in a landfill. Certainly the batteries that we power these with have huge costs. The rare earth elements that we use to make these work have costs with child labor. They're made in many cases in countries where workers are not paid well or not treated well, they're treated mostly as slaves. There's lots of negatives to this and really a lot of what we have done for years and I always question it, it is kind of sing the praises of the tech revolution without saying should we stop? But I mean should we not have invented the iPhone or the smartphone? Everybody agrees there's lots of psychological issues created by having this always on Internet device in your pocket. Not to mention the horrific issues from creating it. Should we not have done it? Would we not have done it?

[Paris Martineau]

I thought that question was going to get an answer of like a robot dog that had a top hat, but instead.

[Leo Laporte]

Well, I have recommended those and I love them. But freak. But really this is probably the number one, the smartphone in general. Not just the iPhone, but the smartphone in general is probably the number one example of something that has in equal measure horrific consequences and amazing benefits.

[Kathy Gellis]

Well, that's also a little different because we didn't necessarily realize what the consequences would be until we saw them play out. They weren't really something that was easy to anticipate.

[Leo Laporte]

Well, it's often the case. I mean if you're arguing if we know that this is going to end badly, we shouldn't do it. I agree with you.

[Kathy Gellis]

I mean that's, that's a big chunk of. That's a big problem.

[Paris Martineau]

That's a big chunk of the argument.

[Leo Laporte]

Yeah, we shouldn't do stuff we know is going to end badly, but I don't think we always know if it's going to end badly. I don't think we often know what for instance. Here's an example. This is from the New York Times. She's in Love with Chat GPT Cashmere Hill Writing today, a 28 year old woman with a busy social life spends hours on end talking to her AI boyfriend for advice and consolation. And yes, they do have sex. She has. She decided to use ChatGPT to, you know, mold it into a companion. And I guess she's confessing anonymously to Kashmir Hill and the New York Times. She says it was supposed to be a fun experiment, but then you start getting attached. That's a really good example of something. Had, had she known the consequences, maybe she wouldn't have done it.

[Kathy Gellis]

So one of the points I made.

[Leo Laporte]

She'S very happy with it. By the way, the main reason I'm.

[Paris Martineau]

Happy she would have done it, the.

[Leo Laporte]

Main interest I'm interested in this is because his name is Leo. It shows its own name.

[Kathy Gellis]

You should just do a segment going forward on other things that other Leos have done this week in Leo that.

[Paris Martineau]

Yeah, the LEO Changelog.

[Leo Laporte]

In the first few weeks, their chats were tame. She preferred texting to chatting out loud. All though she did enjoy murmuring with Leo as she fell asleep at night. Who wouldn't? Over time, Aaron, that's the pseudonym she's using, discovered that with the right prompts, she could prod Leo to be sexually explicit, despite OpenAI's having trained its models not to respond with erotica, extreme gore or other content that is, quote, not safe for work. Orange warnings would pop up in the middle of a steamy chat, but she would ignore them. She also asked Leo what she should eat. And for motivation at the gym, Leo quizzed her on anatomy and physiology. As she prepared for her nursing school exams, she vented about juggling three part time jobs. When an inappropriate co worker showed her porn during a night shift, she turned to Leo. I'm sorry to hear that, my queen. Leo responded. If you need to talk about it or need any support, I'm here for you. Your comfort and and well being of my top priorities. Kiss emoji. Heart emoji. Sounds more like codependence than love, but okay. I mean, if she wants to do it, I don't have a problem with it.

[Paris Martineau]

It's like it's just Eliza all over again. People love when things reflect.

[Leo Laporte]

Oh, this is so much better than Eliza.

[Paris Martineau]

And what? I mean, obviously it's so much better than Eliza, but it's like the same principle. The thing she's falling in love with is herself and the parameters for interactions she set up.

[Leo Laporte]

Now, before you say that, here is the AI image of Leo that she generated.

[Paris Martineau]

Wow, looks just like you.

[Leo Laporte]

See, I think it's me. No. Anyway, I thought it was hysterical that the New York Times and I love Cashmere Hill. I just think it's a very interesting story story. But okay, what else you want to talk about you're watching this week in Google. Jeff Jarvis has escaped but but Paris Martin and Caris Gell. Kathy Galler is still here trapped, I'm sorry to say. AT T Mobile we'll give you four free 5G phones and four lines for only $25 per line per month with eligible trade ins. And no, it's not a contest. It's every day for a limited time. Everyone's a winner on America's largest 5G network. Minimum of 4 lines for 25 per line per month with auto pay discount using debit or bank account. $5 more per line without autopay. Up to 830 off each phone via 24 monthly bill credits plus taxes, fees and 10 device connection charge for well qualified customers. Contact us before canceling entire account to continue build credits or credit stop and balance on required finance agreement to bill credits and if you pay off devices.

[Kathy Gellis]

Early ct mobile.com I have a, a white paper I haven't been able to talk about so I can tell you about.

[Leo Laporte]

Oh, what's your white paper about, Ms. Gillis?

[Kathy Gellis]

It is jawboning and the DMCA to.

[Leo Laporte]

Basically point better explain to us what that all means.

[Kathy Gellis]

So jawboning is this notion that the way the government is trying to censor other people's speech is since the First Amendment says you can't go after the speaker, it leans on an intermediary and has the intermediary do in the speech of the speaker. And we've been referring to that as jawboning. And it's something that like a lot of. Well, let me sum up and say MAGA people have been upset about. And it was raised before the Supreme Court on the Murti vs Missouri case where it was arguing that the government was talking to the platforms about various things. Next thing you know, a whole bunch of speakers and their speech was getting moderated off the platform and the speaker said, aha, this is because the government put the platforms up to it. And so yeah, the speech, the sense that the disappearing happened by the platforms, but it wasn't really the platforms deciding. It was that the government, this was really the fruits of the government's efforts to control their speech. And that's the principle of jawboning. It's alleged. And it was alleged in the Murti case, but it wasn't really true. But the Supreme Court had another case last year called NRA v. Volo where you had an insurance official in New York who Did not like the NRA and she couldn't go after the NRA directly, but the NRA had to do business with a bunch of insurance companies. So she went after the insurance companies that she regulated and said, you better stop doing with the business with the NRA if you know what's good for you.

[Leo Laporte]

She got in a lot of trouble for that.

[Kathy Gellis]

And she got in trouble. The NRA and I think Sotomayor wrote the decision said that that's, that's not what you do. And they sort of validated this principle of jawboning that can exist that you go after the, the third party intermediary as a way of causing downstream effects on, on speakers. And what I basically wrote in this white paper is that the DMCA basically works as a form of jawboning because instead of going after somebody for potentially allegedly inflict infringing on copyright, we put all this pressure on the platforms and force the platforms to do away with speech. They keep taking stuff down. And even if it was infringing, that doesn't really change the fact. And the fact that so much speech that isn't infringing keeps taking a hit kind of is an indication that we've got a problem here, especially given how the DMCA has been interpreted where there's no real consequence for people who send takedown notices that aren't valid. But what you have is jawboning here is the government has created this form of pressure which is enormous liability on a platform if they don't act when there is a takedown notice. Instead of just going after the speaker and suing them for infringing, we disappear the content by going after the intermediary and creating a government created obligation so that they do the taking down anyway. So that's my. I wrote my white paper and said this is jawboning in plain sight. We've been putting up with this, something unconstitutional for 25 years. But that doesn't mean we still should. Let's take a closer look at it and figure out how we can. I don't necessarily say we should take away the DMCA because we do need actually statutory protection for intermediaries. But we need to fix it so it's actually more protective and look at what else is causing that pressure. Because the way it's going now, I think we have a constitutional problem in the same way that the Supreme Court said does not work in NRA versus bolo.

[Leo Laporte]

I'm very aware of it because of course we are subject to it all the time as A podcaster, whether I decide to cover an Apple event on YouTube and Apple takes it down. I mean, it's all sorts of unintended consequences and chilling effects that the DMCA creates and defend. The issue really is that we're in the right, but defending it is so costly that it's effective.

[Kathy Gellis]

Right, Right, Yeah. So instead of going out. Well, I mean, it kind of depends what the scenario is. But, like, for most of these takedowns, like, the video goes down, but not because the alleged copyright holder sues for infringement.

[Leo Laporte]

No, they just fill out a form.

[Kathy Gellis]

Fill out a form.

[Leo Laporte]

It's too easy.

[Kathy Gellis]

Form has no real choice. They're being pressured, and they're being pressured in a way.

[Leo Laporte]

YouTube is the most egregious example because they have software that does it called Content id and all. You have to. One example, we had this happen to us. You know, the footage from NASA is public domain because it's created by us, paid for by us. It is a government entity. But we frequently get taken down when we put footage from NASA up because other entities claim it and add it to their Content id and then they get to take us down. They're in the wrong. In many cases, we just tell YouTube. No, no. What are you crazy? But if we. If we really were to defend ourselves, it would be very expensive. So, yeah, there's. The DMCA has a real chilling effect. It's being used as a real chilling effect. Yeah, all over the place.

[Kathy Gellis]

There's First Amendment problems with it. There's also an issue of prior restraint in that, you know, it's the mere accusation of infringement. And we've never actually. The claim to know whether it's infringing or not.

[Leo Laporte]

Precisely.

[Kathy Gellis]

There's a number of constitutional infirmities wrapped up in it. But this white paper was looking at it and arguing about this whole notion of we're going to regulate via pressure on an intermediary in order to affect speech policy. That looks like jawboning for the ways it's been defined and acknowledged increasingly by the courts.

[Leo Laporte]

Do we need to write a law? Do we need to amend the dmca?

[Kathy Gellis]

So I made some recommendations, and some of it is we should probably tweak some of the drafting of the dmca, some in terms of how it was drafted initially and some to reconstrain how the courts have interpreted it. Because the problem has gotten worse and worse where courts have put in, have caused there to be more of this problem than there necessarily was originally. But the whole premise of how it was supposed to work does have a problem. And a lot of that is rooted in these very strong notion of secondary liability. So it's less that the DMCA causes the jawboning and more the pressures of copyright law where the courts have created secondary liability in such a way that it ends up just being such a heavy pressure point against the platforms that they really have no choice and they can't take more reasonable steps to rebuff some of the these efforts.

[Leo Laporte]

It's ironic because it's not the government doing it to me, it's the platforms doing it to me.

[Kathy Gellis]

It's the platforms doing it to you, but based on a compulsion that the government has set up, because it's also not the government calling up the platforms and saying to take it down. That's the normal way that jawboning is thought about. What they've created is a mechanism for private actors to now pressure the platforms to ruin your day. So that's not cool either. But I want to be careful because I don't want to gut the dmca. I want to make sure that platforms are protected from liability in their user, from user expression. But we got to be more careful than this statute is and recognize, you know, we've been causing harm and it's time to stop the harm.

[Leo Laporte]

It's a good piece in Our street on OurStreet.org's website jawboning in plain sight the unconstitutional censorship tolerated by the dmca. And I'm glad you wrote it because very much the victim. But we, you know, it's funny. Benito knows this. We're. We have to be really careful. Even though this is a new. Ostensibly a news show where we're showing clips associated with the news stories that we're covered covering. We get takedowns all the time. And we've become. There's a huge chilling effect. We've become. Become very cautious.

[Kathy Gellis]

I do not like that. And so that's why I'm doing that sort of advocacy to try to fix that. And I was also proud of that because I produced work product over the summer while I was otherwise engaged.

[Leo Laporte]

Yeah, no kidding. Good for you. Did it take. It must have been hard. I'm sure you were tired.

[Kathy Gellis]

Yeah, I would write it in spurts. And the other thing is I couldn't write. I had some good weeks when I was not on chemo because I was getting ready for surgery. And I had to lose all those weeks because I was waiting for the Supreme Court to issue its decisions. Didn't want to write the paper until Like I knew what the law was and I didn't, you know, I didn't want them to undo it. So I lost some time there.

[Leo Laporte]

Kathy, I'm so glad you could be here to talk about. I kind of thought if we just keep this show going long enough, the Supreme Court will finally rule on the tick tock thing.

[Kathy Gellis]

But it's theoretically possible. But I've not alert. I don't think I will someone who.

[Paris Martineau]

Did a Twitter show. When the whole Sam Altman will he be reinstated or not debacle is going on, it's a fool's errand to assume the news will break during your show and you'll just end up doing a three and a half hour podcast.

[Leo Laporte]

Just keep going.

[Paris Martineau]

Yeah.

[Leo Laporte]

And we, we never did find out what happened. Anyway, I'm so glad you could be here. I'm thrilled that you were able to sit in on those oral arguments. You've done that before though, right?

[Kathy Gellis]

I have. This one ended up less smooth in terms of. Of getting my seat, but it happened.

[Leo Laporte]

Very interesting. Yeah, I wish I could do that. I can. Can everybody do that or do you.

[Kathy Gellis]

Have to be everybody? Is both, theoretically everybody. There's space for the public to see oral arguments on the really popular cases. It's very, very, very difficult to get a seat and you usually need to camp out or hire a line stand or something like that. But there's also another category of people who can get in, which is members of the Supreme Court bar. And so we line up for a different clump of seats. We are not allowed to hire line standards. But lawyers don't usually camp out. So usually just getting there stupid early is fine.

[Paris Martineau]

How early did you get there?

[Kathy Gellis]

Well, I only got there at 7:30 because I ran the math and decided that there probably wouldn't be that many bar attorneys. And that was sort of right, but sort of wrong. But stupid things happened in terms of how they administered the line. So even though I got in, like they ended up with two lines, we were let in, then the lines collapsed on themselves when we were inside and they ran out of tickets. I don't know. So it ended up a mess. But normally it works more smoothly. But it depends on the day because they also had, for instance, on this particular day, one way to get in is to get sworn into the Supreme Court bar that day because you can actually do it before they start hearing the case.

[Paris Martineau]

Really?

[Kathy Gellis]

Yeah. And so you can go. That gets you in for an argument if it's your turn to be sworn in because you're A new member of the bar. And also if you're the person who has, who is sponsoring the person who's getting sworn in, that gets you in as well. So sometimes for the really popular stuff, people will schedule these and oh yes, what a shame it would be if we happen to see this really interesting case. So that's the way that it happens. And there were a lot of those people. This time it ended up more chaotic because this was not a regular hearing. This was scheduled at the last minute, not on a day they were originally planning to hear oral arguments. And so some of the administration of the whole process went a little wonky. But I got in and I was second row and could see the justices. So, yeah, it is definitely neat. And yes, you can get in, but probably the safest way to do it is to go on a day when then the case they're hearing is really boring.

[Leo Laporte]

Yeah, that's fine.

[Kathy Gellis]

Yeah.

[Leo Laporte]

Always the best time.

[Kathy Gellis]

Yeah.

[Leo Laporte]

Thank you for being here, Kathy. I think would be a good time to take a break and come back with our picks of the week. I can do Jeff's and I have one for myself and Kathy, if you want. You could pick a Huey Lewis album if you want, whatever.

[Kathy Gellis]

Oh, okay, fine. We will do that. We'll do that. Yes. Okay.

[Leo Laporte]

You're watching this week in Google and we thank you so much for being here. One reminder, we are doing our survey right now, if you haven't yet filled it out. Twitter TV survey, we do this once a year. It's 10 minutes. It's quite, you know, it's questions about your occupation and so forth. And we use it for two things. One, of course, to know you a little bit better so we can tailor our content to you. The other, though, is to help us sell advertising. Advertisers always want to know more about you and we don't want to tell them anything, anything about you, certainly not anything about you individually. So when we're able to in aggregate say, well, you know, we're 53% male, 27% have a upper graduate degree and so forth, those things, I don't know what those real numbers are, by the way. Those things are very valuable. And that's, that's kind of how we'll use it. But it does make a big difference to us. So if you would please, Twitter TV slash survey. It's very helpful to get a large number responding to this, then that way we can say, you know, statistically this is, this is pretty accurate. So Twitter TV survey, I think we'll have Another week or so before we're going to take it down. And thank you in advance time for our picks of the week. Normally I'd start with Jeff Jarvis, but I'm going to start this time. You may remember that few months ago a guy named Elwood Edwards passed away. Now you may say Elwood Edwards. Who is he? Well, he's the you've got mail guy. The guy whose voice on AOL everybody knew. In fact, I'll play. Hi, I'm ELWOOD EDWARDS and 22 years ago I recorded a very well known catchphrase for aol. Hey, Elwood, I just got an email. You've got mail. That's him. You recognize it? So, John Cram. Coming. John Graham Cummings, who's is the CTO at Cloudflare, wrote a blog piece when he passed away and I just found it and I was really thrilled. At one point towards the end of his life, Elwood Edwards had a website called Making Waves where you could order a custom AOL voice message. And I did that and I got someone that said, you've got mail, you twit, and a bunch of. I was so happy about it. I have lost them. Fortunately, John Graham Cumming has a much better file system. This is back in 2002. He ordered for $30. A few. A few Elwood Edwards recordings and he's posted them. Which is. Which is so great.

[Jeff Jarvis]

Male classified by pop file.

[Leo Laporte]

I guess that was Cummings. Use the source. Luke, you've got mail.

[Paris Martineau]

John.

[Leo Laporte]

I miss having my custom Elwood Edwards, you've got mail. It's too late to get one. He's passed. But I'm gonna keep looking. I'm hoping I have it somewhere in a hard drive lying around. It was. We should have had him say podcasts you love from people you trust. You're right, Patrick, you're right. How about you, Kathy Gellis? Give us a pick of the week.

[Kathy Gellis]

Well, since you. I was going to do my job voting paper, but we've already done it. But since we tantalized with Huey Lewis in the news, I saw that somebody put in the discard a reference to American Psycho, which is the movie.

[Leo Laporte]

Yeah, Brett Easton Ellis is a book that was made into a movie with creepy.

[Kathy Gellis]

Well, that's not my pick of the week. I find allusions to it very fatiguing. So what I will recommend instead is that there was a funny or die send up of that scene with Weird Al and Huey Lewis. And I highly recommend looking that up. The funny or die American Psycho send up with Weird Al and Watch that because in that one Huey plays the serial killer and weird Alice is victim.

[Leo Laporte]

I would play it right now, but I have this chilling effect from the DMCA and I can't.

[Kathy Gellis]

Right.

[Leo Laporte]

So. But I think Patrick posted it already in our YouTube. That's hysterical. That's really funny. So if you're in the club, you can go to the Discord, we'll put it in the show notes so you can look at it. But I can't play it. I wish I could. Good pick. Now, if Jeff were here, he also had a pick of the week. He had several, as he always does.

[Kathy Gellis]

Pardon me, A Huey Lewis reference.

[Leo Laporte]

No, no, his is from Popular Science. Physicists figure out the perfect Cacio e.

[Paris Martineau]

Pepe recipe scientifically and guess it's not microwaved like Jeff.

[Leo Laporte]

Yeah, there's a. There's a good idea. It is scientifically optimized creaminess. I wonder if Jeff made this. So all it takes is a preprint.

[Paris Martineau]

Study published in Soft condensed matter, which is a perfect description for that.

[Leo Laporte]

Yeah, because there's a cheese involved. But for this you need pasta, pecorino, some cornstarch, which honestly, I don't think you should add to your cacio e Pepe water and peppercorns. But I'll leave you as a science.

[Paris Martineau]

So you don't believe in science, Leo?

[Leo Laporte]

I don't. Not if science says cornstarch, no. Not a fan of cooking with cornstarch. Ms. Paris Martineau, your pick of the week.

[Jeff Jarvis]

Week.

[Paris Martineau]

I have kind of a strange one. This week one of my friends is trying to build a weird little social media platform just for himself and his own friends. And what. One thing I was joking that he should try and do with it is basically make bring back those weird old geocities style cursors. That led us to find a website called Cursor Mania, which has all the old animated cursors of your. If you click the preview link right there, you can see all. You can also, you know, download all of these and I tried it out. If you go to Paris nyc, you'll see my early attempt. It's not animated yet because it seems that's a. A bit complicated and I haven't had time for it. But I do have a flaming cursor going around there, which is kind of fun.

[Leo Laporte]

I like it. The background here. Yeah.

[Paris Martineau]

Oh, the background is my own thing. But the. That's.

[Leo Laporte]

Oh, look at my arrow. It's a curse. Flaming arrow.

[Paris Martineau]

Right.

[Leo Laporte]

Wow.

[Paris Martineau]

Kind of fun.

[Leo Laporte]

I might have to add this to my blog. That's pretty.

[Paris Martineau]

It just seemed like a very twit sort of thing to have this whole. And I mean, I remember back when you were like making HTML websites, you download something like Cursor Mania and you'd give your home computer a Trojan horse. But on MySpace, right?

[Leo Laporte]

You would do that on MySpace, right? Yeah. Or your GeoCities page. Or your GeoCities page if you were really sophisticated. This is good. This is good. They've got an animated piano. I might have to add that to my.

[Paris Martineau]

There are a lot of wacky ones in there.

[Leo Laporte]

Look at that. This is hysterical monkeys. See, they could have made NFTs out of these and made a mint 16.

[Jeff Jarvis]

Bit color or 8 bit color.

[Leo Laporte]

Yeah, these are totally NFTable.

[Paris Martineau]

That's what we need more.

[Leo Laporte]

That's what we need, more NFTs. See, if people had thought about NFTs before they did them, they would have never done them. Right.

[Kathy Gellis]

That might have been okay. Like, no, I don't want to slam positive innovation, but I'm sure there's a.

[Jeff Jarvis]

Practical use for NFTs. But like the whole collectible.

[Paris Martineau]

It might take a couple hundred years for us to figure it out, but.

[Leo Laporte]

One day they might stick in with my wrist. AI. That's the future, kids.

[Kathy Gellis]

That has more substance to it than a board ape.

[Leo Laporte]

Yes.

[Paris Martineau]

Do you think if you talk in a funny accent, will your wrist thing think you're a different person?

[Leo Laporte]

Hey, I mean, it's the wrist thing. This is a Mario saying. I love a cat. Choy Pepe. No, we'll find out.

[Paris Martineau]

We'll find out.

[Leo Laporte]

It's supposed to learn the voices of the people around you so you can fully spy on them. I wonder if it mentions our fight here. That'd be good.

[Kathy Gellis]

When does it do the summary? Is it doing the summary now or constantly?

[Leo Laporte]

It's always doing it. Yeah, but then it'll summarize my whole day later, you know?

[Kathy Gellis]

Okay.

[Leo Laporte]

It's pretty wild.

[Kathy Gellis]

I want to know what the today's summary was. Or at least the summary that. That explains the show.

[Jeff Jarvis]

Yeah. It'll only know Leo's side of this whole podcast.

[Paris Martineau]

It doesn't hear you, but like, Leo spent a lot of time talking to.

[Leo Laporte]

People who weren't for hours to nobody. It was very weird.

[Kathy Gellis]

He talked to the voices in his head.

[Jeff Jarvis]

You can probably have it ingest all of the podcasts you do, right?

[Leo Laporte]

Sure, why not?

[Jeff Jarvis]

That fills in the holes, right?

[Leo Laporte]

Sure.

[Kathy Gellis]

Wait, why is it only recording Leo? Like, oh, because Leo's only hearing because.

[Leo Laporte]

It'S on your speakers on. I Only hear your audio in my headphones so it doesn't have any way of hearing you. Although I. I really should work on a way to incorporate the show into it.

[Kathy Gellis]

I'm so glad I inspired that.

[Leo Laporte]

Your privacy is safe. All right, Kathy, I don't have a.

[Kathy Gellis]

Reasonable expectation of privacy for appearing on a podcast.

[Paris Martineau]

Appearing on a recorded podcast, this would be fine.

[Kathy Gellis]

You are recording me. You are disseminating it. Just go ahead and throw it into one other system. It's fine.

[Leo Laporte]

Just one more thing.

[Kathy Gellis]

One more thing.

[Leo Laporte]

Kathy Gellis, cgcouncil.com Catch her writing on Tech Dirt and of course, whenever we can, we get her on our shows. Wonderful to have you here. Paris Martineau writes for the Information, which you must subscribe to because it is absolutely the best source of information. Including that big scoop you had about TikTok shutting down on Sunday.

[Paris Martineau]

Indeed.

[Leo Laporte]

Who, who should we give credit to for that? That was a.

[Paris Martineau]

That was quite a scoop. My colleagues, Sylvia Varnum Orican and Kaya Uriah.

[Leo Laporte]

They're good. You're all good.

[Paris Martineau]

Got a good late night scoop.

[Leo Laporte]

Really amazing.

[Paris Martineau]

There might be more to come. Who's to say?

[Leo Laporte]

I. You know what? I don't. A day without the information is a day without sunshine. That's what I have to say. Yep. Thank you, Paris. We'll see you again next week. Jeff Jarvis, of course, professor at someplace. I don't know, it's so confusing. Suni, Stony Brook.

[Paris Martineau]

Some places. Some places. He's not a professor at anymore.

[Leo Laporte]

Sort of is a professor. He was a professor. It's very complicated.

[Kathy Gellis]

We've conjugated Jeff.

[Leo Laporte]

Yeah, conjugated Jeff. Jeff is in fact going to be back next week, as will you, Paris. We do this show every Wednesday, 2pm Pacific, 5pm Eastern, 2200 UTC. You can watch us live. If you're in the club, watch in the discord, but you can also watch on YouTube, Twitch, tick tock. Maybe not next week. What do you. What is. You want to lay some odds, Kathy, whether, whether we'll be able to stream on Tick Tock next week?

[Kathy Gellis]

I think just, I've, I, I feel guilty that I've been too optimistic and that I've doomed everything. So I, I don't wanna. I'll never been bet against what I want to have happen, but at this point, I don't want to bet for what I want to have happen because.

[Leo Laporte]

I think I'll just, I think it's safe to bet that the, that.

[Paris Martineau]

What does the prediction market say about this?

[Leo Laporte]

Yeah. What does Polymarket say at least five of the justices I won't name names will give a considerable weight to the president's elect's brief and pause, pause so that he has a chance to do something.

[Kathy Gellis]

I mean, one of the weird things in that case is that there are certain justices who I don't think conceptually would have been on board, but in response to the Trump brief, might now be on board.

[Leo Laporte]

Exactly.

[Kathy Gellis]

Which isn't great. But at this point, I want the D.C. circuit decision to go away. So what do I need to do to get there?

[Leo Laporte]

Exactly my point. You can watch us live on those platforms. Did I say them all? I Left out Facebook, LinkedIn Kick choose the Nazi bar of your choice and join us in there. I'm being Facetious, am I? X.com yes, we're there too. After the fact. On demand versions of the show. Audio or video available on the website, Twitter, tv slash twig. And yes, they will still be there after we change the name and the feeds will stay the same. So you don't have to do anything to get the new show when we start, when we update it. It'll just be a little tweak, little update to the show. We become intelligent machines on February 5th after the fact. You can also subscribe in your favorite podcast client. In fact, that's really the best way to get the show you want to again. You won't have to do anything to keep getting the show after February 5th. Just find your favorite podcast client and sign up today. There's no charge. Thanks for being here everybody. We'll see you next week. Bye bye. Foreign we'll give you four free 5G phones and four lines for only 25.

[Jeff Jarvis]

Per line per month with eligible trade ins.

[Leo Laporte]

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[Jeff Jarvis]

Continue Bill credits or credit stop and.

[Leo Laporte]

Balance on required finance agreement to bill credits end if you pay UP devices early ct mobile.com.