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Last month, we wrote about how the IRS and other federal agencies were starting to require the use of private facial recognition from a somewhat sketchy private company, for people to access their own government's services. The main company in question, ID.me, had made some... questionable decisions that raised serious questions about why the government was forcing people to make use of such a private service.

Earlier this morning, Senator Ron Wyden sent a letter to the Treasury Department calling on them to drop the facial recognition requirement, and within hours the Treasury Department told Wyden it would be "moving away" from that plan, and then the IRS put up a more official statement:

Last week the Treasury Department had said it was "reviewing" the matter, but today's announcement is a big deal. It's rare to see a government agency move this fast, so kudos to Treasury/IRS for acting quickly (though, it can be argued that it never should have gotten this far in the first place). But also kudos to Wyden for helping make this happen as well.

Over a decade ago, we wrote about how Google had to edit out the Australian Aboriginal flag from a logo because of copyright concerns. An 11-year-old girl had won a contest to design a Google logo for Australia Day, and her logo included a simple drawing of the popular Aboriginal flag. Harold Thomas created a (fairly simple) flag design "as a symbol of unity and national identity" for the Aboriginal people in Australia. The flag became quite popular... and then Thomas basically became a copyright landlord, demanding payment for pretty much any usage.

In 2019, Thomas did a big licensing deal with a clothing company and proceeded to send out a bunch of cease-and-desist letters to others. It got so bad that the Australian Senate sought to have the government figure out a way to make sure the public could use the flag.

Apparently it took over two years, but the "deal" has been worked out -- and it involves the Australian government paying over $20 million to basically buy out the copyright and the former licensing deals, but that still doesn't mean the flag is truly in the public domain:

So, given that he retains the moral rights, that suggests he will still have the power to stop anyone from using the flag in a way that he, personally, disapproves of. And the fact that there's still a license for commercial use, means that the government is still effectively enforcing the copyright.

So, in the end this was $20 million of taxpayer money... to basically pledge not to go after people for personal use.

With a whole bunch of caveats. If it's used in a manner that someone disapproves of, you better believe that it won't be seen as "free" for use. Hell, even the Google example from a decade ago probably wouldn't work, because I would bet the Australian government would argue that was a "commercial" use.

Seems just slightly ironic for a landlord who claimed ownership of a concept and then locked people out would call that a representative sample of "the timeless history of our land."

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This case -- sent to us by Eric Goldman -- touches on a lot of subject matter covered frequently at Techdirt: dead dogs, police officers, the First Amendment, and qualified immunity. Yet the narrative isn't quite what's expected given the elements. And the court's conclusions, while disappointing, are likely the correct application of the law.

Here's the background to the case, as recounted in the federal court decision [PDF]:

Plaintiffs John and Brittany Knudsen, a married couple, reside in Spring Hill, Kansas. Plaintiffs owned a Great Dane dog named Nala. On March 29, 2020, Nala got out of plaintiffs’ house. Defendant Mark Cantrell and his wife, Jessica, were walking their dogs near plaintiffs’ house and Nala approached them. Defendant Cantrell shot Nala with a firearm. Nala loped, grievously wounded, toward plaintiffs’ property, and John Knudsen saw that Nala had sustained a gunshot wound. John Knudsen took Nala to the emergency veterinarian, where plaintiffs chose to have Nala humanely euthanized.

Not everyone walking their dog would carry a gun and/or be willing to shoot another dog just because the dog approached them. There's a reason Mark Cantrell might have deployed "shoot first" tactics: he was an Olathe, Kansas police officer.

The shooting was reported to the Spring Hill Police Department by the Knudsens. Officer Shaun Whitesell handled the call and took the Knudsens' statements. The original report listed the Knudsens as the victim of a potential crime (the shooting of their dog) and Officer Cantrell (who was off-duty at the time) as the suspect. Later, Officer Whitesell "changed the report to reflect that Cantrell was the victim."

Over the next couple of weeks, the Knudsens tried to obtain copies of the reports and witness statements. The Spring Hill PD refused to hand them over. Officer Whitesell informed the couple that "Cantrell would likely not be charged."

The Knudsens took their complaints to social media.

Plaintiffs posted information about the incident publicly on Facebook on April 15, 2020. “The Facebook post described the events[,] . . . identified Cantrell as the shooter, and identified that he was a police officer for the Olathe, Kansas Police Department[.]” The Facebook post went viral.

Soon after this, Cantrell called the Spring Hill PD to complain about the post, stating that he had received a "threat from a person unrelated to the Plaintiffs." This led to another set of unfortunate statements and events.

Defendant Whitesell responded to defendant Cantrell’s call and met with defendant Cantrell and his wife. The Cantrells wanted plaintiffs charged. Whitesell told the Cantrells that plaintiffs “would be ticketed for harassment and/or witness intimidation.” Later, Whitesell visited plaintiffs’ home and discussed the Facebook post with plaintiff Brittany Knudsen. Whitesell told Brittany Knudsen the post was “causing problems, and told her it should be taken down.”

Every action here was wrong. If threats had been made against Cantrell, the only criminal suspect would be the person making the threats. Officer Whitesell could have simply informed the Knudsens that their post had resulted in threats being made against Cantrell and allowed them to make a decision about taking the post down. What he shouldn't have done is tell another officer he would attempt to issue a criminal citation and definitely should not have instructed the couple to take the post down.

That led to this lawsuit, which alleges First Amendment violations by Officer Whitesell and brings some state law claims (conversion, assault) against the off-duty officer who shot the couple's dog. The court says it only has jurisdiction over the First Amendment allegations against Officer Whitesell.

Whitesell argued he should be awarded qualified immunity because it was not clearly established that demanding someone take down a social media post violated rights. The court, after much discussion, agrees with Officer Whitesell.

While it should be fairly obvious police interactions over social media posts contain a multitude of First Amendment implications, the speech targeted by Officer Whitesell's actions did not actually target him. It discussed the actions of another police officer, one who was off-duty at the time he shot the Knudsens' dog.

[P]laintiffs try to characterize their speech as criticism “of both the City of Spring Hill as well as Defendant Cantrell, an officer for the Olathe, Kansas police department.” Plaintiffs assert that “[s]peech, challenge, and criticism directed at police is . . . [a] clearly established” right. (citing Hill, 482 U.S. at 461). But this characterization doesn’t match the circumstances of this case. Plaintiffs don’t allege that they criticized the police in their Facebook post. Instead, plaintiffs’ post criticized defendant Cantrell for off-duty actions unrelated to his employment with the Olathe Police Department. Critically, the post doesn’t criticize the alleged retaliator: defendant Whitesell. [...] Even if one construes plaintiffs’ post as criticism of defendant Cantrell’s actions as a police officer, the alleged retaliation is several degrees removed from that criticism.

The court also notes that the Knudsens seemingly had no complaint about Officer Whitesell or the Spring Hill Police Department, directly quoting a statement made by the couple about their local PD:

“Responding Spring Hill Officers and the entire Spring Hill PD have been nothing but amazing during this whole situation. They have been sympathetic to our loss, and have continually checked in on us to be sure we are holding up. This is how a police department should be, and I am proud to have these officers protecting our community. But unfortunately their hands are tied[.]”

That mismatch between public and private action means Officer Whitesell can't be sued for handling this poorly.

Here, plaintiffs spoke about Cantrell in his capacity as a private citizen, then that speech resulted in a complaint by Cantrell, and then the Spring Hill police department dispatched defendant Whitesell to plaintiffs’ home, where the alleged retaliation took place. Yet, plaintiffs rely on cases where the police retaliated against plaintiffs for speech directed at police officers. [...] These cases don’t match plaintiffs’ allegations. Plaintiffs allege that their speech was directed at another police officer and defendant Whitesell responded to a complaint from that police officer, not the speech itself.

That's the correct call in this case. Officer Whitesell probably shouldn't have told the couple to take down the post, but he was responding to a reported threat allegedly related to the post, rather than discussing the contents of the post itself. Whether Officer Whitesell would have performed these actions in response to a reported threat from a regular resident (rather than another police officer) can be debated, but it likely can't be proven one way or the other. And, in either case, it wouldn't change the outcome of this case.

That just leaves the state law claims against the off-duty officer and I would imagine those are just as unlikely to succeed. It's one thing when someone enters another person's property and assaults their pet. It's quite another when the pet is loose and is approaching someone in a public area like a sidewalk. Chances are, the state court will find no violation of law in Cantrell's actions, even if they appear to be an overreaction to the perceived threat -- which at this time was nothing more than an unchained dog (albeit a large one).

This sucks for the Knudsens but sometimes bad things happen and there's no one that can be held legally responsible for an unfortunate series of events.

In late 2020, Massachusetts lawmakers (with overwhelming public support) passed an expansion of the state's "right to repair" law. The original law was the first in the nation to be passed in 2013. The update dramatically improved it, requiring that, as of this year, all new telematics-equipped vehicles be accessible via a standardized, transparent platform that allows owners and third-party repair shops to access vehicle data via a mobile device. The goal: reduce repair monopolies, and make it cheaper and easier to get your vehicle repaired.

Of course major auto manufacturers didn't like this, so they set about trying to demonize the law with false claims and a $26 million ad campaign, including one ad falsely claiming the expansion would only really help sexual predators. Once the law passed (again, with the overwhelming support of voters) automakers sued to stop it, which has delayed its implementation. Simultaneously, they're pushing legislation that would delay the bill's launch date until 2025, giving them more time to kill it.

In the interim, companies like Kia and Subaru have started disabling useful features (like remote start), and blaming the law:

Recall that the Massachusetts law needed to be expanded in the first place because automakers were behaving in predatory ways as they attempted to monopolize repair. That law is now on hold... and may never actually be implemented...because of the industry lawsuit. While complying with it may prove difficult given the archaic nature of many car systems (Wired finds an engineer willing to argue as much), completely disabling all telematics system seems performative. You're to assume that the same industry that falsely claimed the law would only be of benefit to sex pests, is genuinely worried about compliance and not, say, interested in finding creative ways to vilify the new law or gain leverage in the ongoing lawsuit aimed at killing it entirely.

Given the industry's track record of honesty so far on this subject, trusting that this truly was a purely technical consideration feels like a big ask.

In the interim this is only one of countless battles no going on around the country as consumers, farmers, medical professionals, and others fight back against obnoxious DRM, repair monopolies, and draconian crackdowns on independent repair. Three different federal right to repair legislative proposals were introduced this week alone, in addition to more than a dozen state proposals already introduced. At this point, for repair monopolists, the right to repair movement is a sort of finger trap puzzle in that the more they wriggle and clamp down on independent, affordable repair options, the bigger the movement gets.

This week, our first place winner on the insightful side is an anonymous response to FCC-boss-turned-cable-lobbyist Mike Powell and his comments about how Gigi Sohn should be recused because of her consumer protection work:

Wouldn't Powell's logic also require that anyone who has ever worked in the telecom industry would need to recuse themselves from any telecom decisions made by the FCC? After all, if you can't be objective if you've worked against telecom companies, then you can't be objective if you've worked for them either.

In second place, it's another anonymous comment, this time in response to the Tenth Circuit ruling that ordering a student to stop talking about an instructor violates the First Amendment:

Accreditation boards take the ability for students to provide feedback about instructors and course design into account when reviewing educational institutions. If the students can't provide feedback, positive or negative, then courses can be adjusted in response to the student experience.

The other angle at play here is that it seems like the student didn't request an ADA accommodation, but even then, that doesn't make the instructor's response to her sitting on the floor valid. The admin should have told the student how to file for an accomodation to prevent that issue in the future. Could have saved the college a lawsuit.

For editor's choice on the insightful side, we start out with a comment from TFG in a conversation that emerged on our post about Washington Sate Governor Inslee wanting to jail politicians who lie, about the alternative notion of requiring IQ tests for politicians:

Found what looks to be a pretty good article on the subject:

https://theconversation.com/the-iq-test-wars-why-screening-for-intelligence-is-still-so-con troversial-81428

In addition to what Stephen said, it's worth noting that the inventor of the tests, considered them inadequate:

The first of these tests was developed by French psychologist Alfred Binet, who was commissioned by the French government to identify students who would face the most difficulty in school. The resulting 1905 Binet-Simon Scale became the basis for modern IQ testing. Ironically, Binet actually thought that IQ tests were inadequate measures for intelligence, pointing to the test’s inability to properly measure creativity or emotional intelligence.

That bolded section is hugely important. What's termed "emotional intelligence" here includes, I believe, emotional maturity and empathy, which is definitely something that leaders should have.

Also note that IQ tests were designed around testing large populations, finding a median, and identifying those that are in need of assistance in a school setting. The original purpose of them was a way to find and come alongside individuals who were being left to fall through the cracks of an educational system.

Applying that willy nilly to a bunch of other things, and especially using it as a gatekeeping mechanism, seems flawed to me.

(One of the good things to come out of IQ tests was their use in an economic impact study to drive home how leaded gasoline was a horrible idea in demonstrating the effect of lead poisoning on the learning abilities of children - which is arguably in keeping with the original intent of the tests.)

Next, it's That One Guy with a comment about the NYPD's ongoing failure to change or improve in any way:

'You refuse to comply? Your budget just shrank by 10 million.'

So long as the city keeps asking the NYPD to change while continuing to pay them the organization has no reason to change or give a damn what the city might bluster about. Either start cutting funding until they comply or drop the pretense that the city has any interest in keeping the NYPD in check.

Over on the funny side, our first place winner is an anonymous response to a commenter who wove a little fiction about Trump being "killed by a booby-trapped copy of the Constitution":

That's got to be something you simply dreamed up. Like Trump would touch a copy of the constitution...

In second place, it's Jojo, with a comment about Governor Inslee's proposal:

Inslee: “I’m going to arrest every politician that lies. [Proceeds to throw himself into jail.]

For editor's choice on the funny side, we start out with a comment from Designerfx about our mention of the way politicians "hang all sorts of gifts" on bills:

I think you missed the r in grifts

Finally, it's Pixelation with a comment about how John Deere must be feeling about the agricultural right to repair bill:

I wonder if they received a Deere John letter?

That's all for this week, folks!

Five Years Ago

This week in 2017, the six-strike copyright "voluntary agreement" officially died. Another prominent death was Denuvo DRM for Reisdent Evil 7, which was cracked in five days, which the company hoped was better than nothing. In a more worrying DRM development, the eventually-successful push to codify EME DRM in the HTML5 standard lurched forward. Meanwhile, Congress appeared to be preparing to gut net neutrality and AT&T was downright giddy about Ajit Pai, while we took a moment for a deeper look at the horrors of a Trump presidency.

Ten Years Ago

This week in 2012, in the aftermath of the SOPA protests, it was time for reflection on what happened and attempts to channel the energy into other issues — unless of course you were a SOPA supporter, in which case it was time for misleading op-eds and general whining. Protests against ACTA were spreading and starting to get big results, while Hollywood was partying with TPP negotiators. Megaupload users were planning to sue over the shutdown of the site, while ICE seized 300 more sites, mostly to protect the Super Bowl.

Fifteen Years Ago

This week in 2007, Sony BMG admitted that its rootkit violated federal law and agreed to pay to fix damaged computers, Google issued a non-apology over its decision to censor results in China, and YouTube started talking about revenue sharing plans (while Viacom was pulling over 100,000 clips from the site). We looked at the deeper implications of Google's book scanning fight, and the emerging norm of judges citing Wikipedia. Also, this was the week of the (in)famous Adult Swim marketing stunt that shut down the city of Boston due to massive paranoid overreaction.

There's apparently nothing the New York Police Department won't lie about. When it comes to being overseen, the NYPD seems to feel it has no obligation to provide data, answer questions honestly, or cooperate with any accountability efforts.

And the NYPD has made it clear it doesn't believe city laws (or even its own internal policies) should apply to it. Multiple legal rulings over the past several years have ordered the NYPD to staff administrative positions with civilian employees, rather than (much more costly) uniformed officers. This is part of being a good public servant -- one that seeks ways to reduce the cost of services provided to the public.

It just makes sense. Officers who are out on the street should receive higher salaries that reflect the dangers they face as they perform their duties. If they're just running a desk, the pay should be lower. The fewer higher-paid cops staffing desk jobs, the more money available to hire uniformed officers to work the streets.

But the NYPD doesn't want to do that. And since it hasn't, it has had to find ways to cover up its decision to ignore city policies and court orders.

For five years, the NYPD told the City Council in quarterly reports that it had over time replaced hundreds of cops handling clerical duties with less expensive civilian employees.

But when city auditors asked for data to back up the figures, the department produced “three different datasets, none of which were consistent with the other,” according to City Comptroller Brad Lander’s first published audit, which was initiated by his predecessor.

“The NYPD was not able to provide supporting data for the progress it has reported,” the audit being released Friday found.

Not only that, but the NYPD refused to provide information on payroll for uniformed staff currently performing administrative work, making it impossible for the city auditor to estimate how much the department could save by replacing officers with civilian employees. As of 2002, it was estimated the NYPD could save more than $24 million by converting certain positions. Presumably, the potential savings are much higher two decades later, but there's no way of estimating the current potential savings, thanks to the lack of cooperation from the PD.

Any savings would be appreciated. The NYPD's budget hovers around $5-6 billion a year. In reality, the amount of money New Yorkers pay to keep the NYPD in business is roughly double that. So, there appears to be plenty of money for hiring civilians, especially when offset by the cost of putting existing officers back on patrol, rather than spending millions to educate and certify a new class of police academy candidates.

In response to the auditor's recommendations, the NYPD offered excuses (supposed budget limitations) and bluster (ignoring the recommendation by talking about something else instead). If this is going to change (and it has been in the works since late 2015), the city will actually need to take action against the NYPD if it fails to move forward with these directives. If it doesn't, it will further solidify the NYPD's power, making it even more difficult for its oversight to do its job and for those overseeing the department to enforce needed changes.

Congress is trying to overload anyone who supports an open internet with terrible bill after terrible bill. Last week, they brought out the "COMPETES Act" (renamed from Endless Frontiers which had already been renamed as "USICA" and then became COMPETES). The underlying concept of the bill actually is important -- reviving American innovation. The Senate version of the bill was mostly good and had broad bipartisan support. However, for reasons I don't understand, Nancy Pelosi allowed the bill to be loaded up with a bunch of items on the Democrats' wish list, including the ridiculously dangerous SHOP SAFE Act.

This week, of course, we've been stuck dealing with the reintroduction of the also terrible EARN IT Act in the Senate, and while all of the open internet activists were gearing up to fight that, the House went ahead and voted to approve the COMPETES Act with no changes. It was an almost strict party-line vote, ending up at 222 for and 210 against. One Democrat -- Rep. Stephanie Murphy -- voted against it, and one Republican -- Rep. Adam Kinzinger (who technically is still a Republican) voted for it.

This all seems so incredibly counterproductive by Pelosi and the Democrats. I know they want a "win" and when there's a bill that will move they feel they need to hang all sorts of gifts on it, but following the Senate's lead and coming up with a more reasonable bill that wasn't stuff full of bad ideas would have presented this as an actually interesting and useful bill, rather than turning it into a partisan thing. Politics is where policy goes to die. And, unfortunately, it may take parts of the open internet with it.

That said, the Senate version does not have the nonsense and dangerous SHOP SAFE bill attached, and the hope is that during the conference process where the House and Senate try to square up the different bills, SHOP SAFE will get left on the cutting room floor, where it belongs.

Chile is in the middle of creating a new constitution -- a process that seems fraught with both huge potential and tremendous risks, especially trying to do it amidst domestic social upheaval (though, I guess that's when most constitutions tend to be written). A process is in place and 155 people are apparently been tasked with creating this new constitution. Apparently, part of the process is open to an element of crowdsourcing, in that people can submit and vote on certain proposals, meaning that a set of three proposals regarding the internet have been put forth:

All of these sound good (in fact, very good) in theory, though I'm a bit squeamish about how they would be implemented in practice, should they get the necessary signatures and support from the constitution drafters. However, at the very least, it's worth watching how modern constitution drafting is going to consider user rights online.

The Nintendo vs. GilvaSunner YouTube channel saga has come to an end. It had become sort of an annual thing for Nintendo to copyright strike large numbers of videos on that channel, which mostly has "videos" consisting of beloved video game music from Nintendo titles. Over 100 videos were struck in 2019. Then another swath of videos were struck in 2020. After taking 2021 off, Nintendo struck over 1,300 of GilvaSunner's uploads a few weeks ago. Now, while we've taking pains to point out that Nintendo can do this, as it owns that IP, it certainly didn't have to go this route. There were plenty of other alternatives, including offering this music on any relevant streaming platform itself, which it has always declined to do.

Well, as I said, it's over. The GilvaSunner channel is to be shutdown due to the volume of copyright strikes it received.

Following the strike though, Gilvasunner has announced they will be deleting their channel this Friday (February 4).

Writing on Twitter, they said: “Hi everyone, after the 1300 copyright blocks from Nintendo a few days ago, the YT channel received another 2200 blocks today (with likely many more to follow). After thinking about this a lot over the past few days, I’ve decided that at this point it’s really not worth it to keep the channel up any longer, and will therefore delete the GilvaSunner YouTube channel (or what’s left of it) this coming Friday.”

I'll point out again that GilvaSunner's channel did not compete with Nintendo in any way, going all the way back to 2019. Its videos didn't replace buying Nintendo games. The channel didn't compete with legit sources for Nintendo game music, since Nintendo declined to create any such legit sources. This was, for the past 3 years, simply Nintendo trying to stamp out a resource for Nintendo fans to celebrate Nintendo music, thereby expressing and solidifying their fandom.

But when it comes to this latest round of copyright strikes, it comes with a slight sliver of a difference.

Announcing the Pokémon DP Sound Library! 🎶

All the music you love from the original Pokémon Diamond and Pokémon Pearl games is now available to listen to AND download for use in personal video and music creation.

🎧 Tune in: https://t.co/jtypxqVG5o pic.twitter.com/5r3rTtmcjn

— Pokémon (@Pokemon) February 2, 2022

So, while this is nothing like all of Nintendo making its game music available for streaming, it's at least a step in that direction. But think about this for a moment: for 3 years Nintendo has been warring with a YouTube channel celebrating its music without offering any real streaming alternative -- yes, some game music has been available to buy on iTunes for some time, but that's not the same thing -- and once the company managed to kill off that channel, one of its properties releases a site to both stream and download for free some of that same music.

Is that not both insane and annoying? Nintendo didn't have to release this site; GilvaSunner was doing it for free. But Nintendo is so in love with controlling all of its IP that this is where we somehow landed.

The First Amendment applies to school students. This is something courts seem to have particular difficulty drilling into the heads of school officials and administrators. Yes, their rights are somewhat limited due to their age and/or time and place restrictions, but they are closer to "fully respected" than "nonexistent" -- the latter of which appears to be the default assumption for far too many educational entities.

Schools hope allegations of "disruption" will salvage their rights violations. But in far too many cases, the asserted disruption was localized solely in the minds of the rights violators, resulting in them having to continue facing lawsuits over their actions, rather than having complaints against them judiciously wished away into the qualified immunity cornfield.

Such is the case here in legal action involving a college and its violation of a student's rights. (via Volokh Conspiracy) In this case, a student, who dropped a class because she was unhappy with her instructor, was subjected to discipline solely because she (very quietly) made her unhappiness with this professor known.

The plaintiff, Rowan Thompson, has an eye condition that makes her sensitive to light. In one class, taught by Dr. Megan Lazorski, avoiding aggravating this condition meant sitting in one of the first three rows. For the most part, Thompson was able to use this option. But in two instances, when she arrived late, seats up front were no longer available. Thompson chose to sit on the floor, which apparently irritated her instructor. In the second instance -- with no other usable seats available -- Dr. Lazorski gave Thompson this option: sit in an available seat or leave the class. Thompson left. Then she dropped the class.

She also sought mediation of her dispute over seating. The mediators asked her to submit a review of Dr. Lazorski, utilizing an online form for evaluations and class ratings. Thompson discovered she could no longer do this through the college website's portal since she was no longer listed as a student of Lazorki's.

Because the only option the mediator provided wasn't available to her, Thompson emailed her fellow students, asking them to submit their own reviews of Lazorski's class. This is taken from the Tenth Circuit Appeals Court decision [PDF]:

Hello everyone, I’m Rowan- some of you may know me as the goth girl who sat on the floor in class. For those who don’t know, I came late to class a couple of times and sat on the floor. It angered the professor enough that I was asked to leave class on the last occasion. A few weeks later, after a mediation attempt between the dean of chemistry and the professor, I had to drop the class to stop further confrontation- over sitting on the floor.

I have heard so many of you say how horrible a time you’re having in this class, that there are some bits that are ridiculous or downright unreasonable. You shouldn’t have to suffer through a class, especially one that is required, and this is not what college is supposed to be like. College is supposed to make us feel excited about our futures and finally learn what we are interested in, not ditch class because we know we won’t learn anything. You don’t need to keep your complaints and troubles private; this is what the evaluations are for. They’re online; the link to fill them out appears when you log into Blackboard, they take only a couple of minutes, are anonymous, and the more detail is said the better. Every issue you’ve had, every complaint? This is when the faculty and university is listening and wants to hear them. Students, including myself, who have dropped the class won’t be able to fill out an evaluation- our voices cannot be heard unless we speak to the deans directly, but I know for a fact that many are afraid to speak face-to-face.

Please, take the few minutes to review this chemistry class and be honest- make the faculty listen to you so that this class can change for the better. If not for yourself, than for those who have had to drop the class, feeling worthless and stupid, or for students who will have to take this class after you. Hang in there- you’re almost done and then you can leave this semester behind you! ? ?

-Rowan

This plea for action on her behalf (and on behalf of other students who may have been treated unfairly or were too intimidated to bring their complaints directly to the dean) resulted in this extreme overreaction by the college's administrators:

On April 25, Thompson received a letter from [Associate Director of Student Conduct Thomas] Ragland informing her that “the Dean of Students Office received reports that [Thompson] may have violated provisions of the Student Code of Conduct”; that these reports concerned “the disagreement between [Thompson] and Dr. Lazorski”; that, specifically, Thompson’s email to her former classmates “may have violated the Student Code of Conduct”; that Thompson had to meet with Ragland; and that Thompson was subject to a “No Contact order” restricting her from communicating with Dr. Lazorski. Ragland’s letter specifically cautioned: “Further, due to the persistent communication and disruption your communication is about Dr. Lazorski (sic), you are restricted from discussing Dr. Lazorski with any student in the CHE 1800 course or any of Dr. Lazorski’s classes, as this would be a violation of the this No Contact Directive (sic).”

There's your prior restraint. And there are the baseless accusations about "persistent communication" and "disruption," neither of which the school was able to provide evidence of when defending against this lawsuit. Going back to Tinker (1969) and tracing procedural history forward, the Tenth Circuit says denying qualified immunity is a no-brainer. This right is clearly established.

We think the foregoing precedents clearly establish that Thompson’s complaint adequately states a First Amendment violation. Indeed, this case is, at least at the present stage of the proceedings, an easy one. Thompson’s speech was restricted. And there is no apparent legitimate basis for this restriction.

As for the argument that school "disruption" justified Ragland's prior restraint, the court is having none of it.

He relies in part on the disruption caused to the two classes Thompson attended when she sat on the floor. Those two classes were in early February 2019. Ragland’s letter to Thompson was in late April. In the interim (sometime after the mediation on March 18) Thompson sent her email to fellow students. A reasonable factfinder could readily determine that the discipline was imposed on Thompson because of the email, not just because of the two classroom incidents that caused minimal disruption and had apparently been resolved by Thompson’s dropping the class.

Nor was Thompson's email disruptive.

The other possible cause of disruption was Thompson’s email to fellow students. But there is no evidence of any disruption caused by the email; on the contrary, the complaint alleges that there was no disruption to the work of MSU, and none was mentioned in Ragland’s letter imposing the discipline. Nor could disruption be reasonably anticipated. Thompson merely sent a respectful, noninflammatory email expressing her dissatisfaction with a professor’s performance and encouraging her former classmates to submit “honest” reviews about the class and the professor.

The court's harshest criticism is reserved for that particular argument:

What Ragland argues in his appellate brief is remarkable. He claims that Thompson’s “efforts to encourage other students to give negative evaluations would disrupt Dr. Lazorski’s career and her relationship with her students, as well as [MSU’s] efforts in employing faculty to conduct the class.” [...] If we were to accept that rationale, there would be no First Amendment protection for criticism of government employees.

This reverses the lower court's decision, which inexplicably sided with Ragland and his argument that criticism of government employees isn't protected speech. The administrator loses his qualified immunity and will have to continue defending himself against Thompson's lawsuit. This doesn't mean the addition of more facts to the case might result in a delayed win for Ragland (although, given what's detailed here, I don't see how he possibly walks away from this), but the onus is now on the administrator to defend his apparent rights violation, rather than simply claim he had no idea ordering a student to stop talking about an instructor might violate the student's rights.

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I've already explained the dangers of the EARN IT Act, which is supported by 19 Senators, who are misleading people with a "fact" sheet that is mostly full of myths. As Senator Wyden has explained, EARN IT will undoubtedly make the problem of child sexual abuse material (CSAM) worse, not better.

In my initial posts, I compared it to FOSTA, because EARN IT repeats the basics of the FOSTA playbook. But -- and this is very important since EARN IT appears to have significant momentum in Congress -- it's not just FOSTA 2.0, it's significantly more dangerous in multiple different ways that haven't necessarily been highlighted in most discussions of the law.

First, let's look at why FOSTA was already so problematic -- and why many in Congress have raised concerns about the damage done by FOSTA or called for the outright repeal of FOSTA. FOSTA "worked" by creating a carveout from Section 230 for anything related to "sex trafficking." As we've explained repeatedly, the false premise of the bill is that if Section 230 "doesn't protect" certain types of content, that will magically force companies to "stop" the underlying activity.

Except, that's wrong. What Section 230 does is provide immunity not just for the hosting of content, but for the decisions a company takes to deal with that content. By increasing the liability, you actually disincentivize websites from taking action against such content, because any action to deal with "sex trafficking" content on your platform can be turned around and used against you in court to show you had "knowledge" that your site was used for trafficking. The end result, then, is that many sites either shut down entirely or just put blanket bans on perfectly legal activity to avoid having to carefully review anything.

And, as we've seen, the impact of FOSTA was putting women in very real danger, especially sex workers. Whereas in the past they were able to take control of their own business via websites, FOSTA made that untenable and risky for the websites. This actually increased the amount of sex trafficking, because it opened up more opportunity for traffickers to step in and provide the services that sex workers had formerly used websites for to control their own lives. This put them at much greater risk of abuse and death. And, as some experts have highlighted, these were not unintended consequences. They were consequences that were widely known and expected from the bill.

On top of that, even though the DOJ warned Congress before the law was passed that it would make it more difficult to catch sex traffickers, Congress passed it anyway and patted each other on the back, claiming that they had successfully "fought sex trafficking." Except, since then, every single report has said the opposite is true. Multiple police departments have explained that since FOSTA it has made it harder for law enforcement to track down sex traffickers, even as it's made it easier for traffickers to operate.

Last year, the (required, but delivered late) analysis of FOSTA by the Government Accountability Office, found that the law made it more difficult to track down sex traffickers and did not seem to enable the DOJ to do anything it couldn't (but didn't!) do before. The DOJ just didn't seem to need this law that Congress insisted it needed, and basically has not used it. Instead, what FOSTA has enabled in court is not an end to sex trafficking, but ambulance chasing lawyers suing companies over nonsense -- companies like Salesforce and MailChimp, who are not engaging in sex trafficking, have had to fight FOSTA cases in court.

So, FOSTA is already a complete disaster by almost any measure. It has put women at risk. It has helped sex traffickers. It has made the job of law enforcement more difficult in trying to find and apprehend sex traffickers.

Already you should be wondering why anyone in Congress would be looking to repeat that mess all over again.

But, instead of just repeating it, they're making it significantly worse. EARN IT has a few slight differences from FOSTA, each of which make the law much more dangerous. And, incredibly, it's doing this without being able to point to a single case in which Section 230 got in the way of prosecution of CSAM.

The state law land mine:

Section 230 already exempts federal criminal law violations. With FOSTA there was a push to also exempt state criminal law. This has been a pointed desire of state Attorneys General going back at least a decade and in some cases further (notably: when EARN IT lead sponsor Richard Blumenthal was Attorney General of Connecticut he was among the AGs who asked for Section 230 to exempt state criminal law).

Some people argue that since federal criminal law is already exempt, what would be the big deal with state law exemptions -- which only highlights who is ignorant of the nature of state criminal laws. Let's just say that states have a habit of passing some incredibly ridiculous laws -- and those laws can be impossible to parse (and can even be contradictory). As you may have noticed, many states have become less laboratories of democracy and much more the testing ground for totalitarianism.

Making internet companies potentially criminally liable based on a patchwork of 50+ state laws opens them up to all sorts of incredible mischief, especially when you're dealing with state AGs whose incentives are, well, suspect.

CDT has detailed examples of conflicting state laws and how they would make it nearly impossible to comply:

Some early versions had a similar carve-out for state criminal laws, but after similar concerns were raised with Congress, it was modified so that it only applied to state criminal laws if it was also a violation of federal law. EARN IT has no such condition. In other words, EARN IT opens up the opportunity for significantly more mischief for both state legislatures and state Attorneys General to modify the law in dangerous ways.. and then enable state AGs to go after the companies for criminal violations. Given the current power of the "techlash" to attract grandstanding AGs who wish to abuse their power to shakedown internet companies for headlines, all sorts of nonsense is likely to be unleashed by this unbounded state law clause.

The encryption decoy:

I discussed this a bit in my original post, but it's worth spending some time on this as well. When EARN IT was first introduced, the entire tech industry realized that it was clearly designed to try to completely undermine end-to-end encryption (a goal of law enforcement for quite a while). Realizing that those concerns were getting too much negative attention for the bill, a "deal" was worked out to add Senator Pat Leahy's amendment which appeared to say that the use of encryption shouldn't be used as evidence of a violation of the law. However, in a House companion bill that came out a few months later, that language was modified in ways that looked slight, but actually undermined the encryption carve out entirely. From Riana Pfefferkorn, who called out this nonsense two years ago:

So, take a wild guess which version is in this new EARN IT? Yup. It's the House version. Which, as Riana describes, means that if this bill becomes law encryption becomes a liability for every website.

FOSTA was bad, but at least it didn't also undermine the most important technology for protecting our data and communications.

The "voluntary" best practices committee tripwire:

Another difference between FOSTA and EARN IT is that EARN IT includes this very, very strange best practices committee, called the "National Commission on Online Child Sexual Exploitation Prevention" or NCOSEP. I'm going to assume the similarity in acronym to the organization NCOSE (The National Center on Sexual Exploitation -- formerly Morality in Media -- which has been beating the drum for this law as part of a plan to outlaw all pornography) is on purpose.

In the original version of EARN IT, this commission wouldn't just come up with "best practices," but Section 230 protections would then be only available to companies that followed those best practices. That puts a tremendous amount of power in the hands of the 19 Commissioners, many of which are designated to law enforcement folks, who don't have the greatest history in caring one bit about the public's rights or privacy. The Commission is also heavily weighted against those who understand content moderation and technology. The Commission would include five law enforcement members (the Attorney General, plus four others, including at least two prosecutors) and four "survivors of online child sexual exploitation", but only two civil liberties experts and only two computer science or encryption experts.

In other words, the commission is heavily biased towards moral panic, ignoring privacy rights, and the limits of technology.

Defenders of this note that this Commission is effectively powerless. The best practices that it would come up with don't hold any additional power in theory. But the reality is that we know such a set of best practices, coming from a government commission, will undoubtedly be used over and over again in court to argue that this or that company -- by somehow not following every such best practice -- is somehow "negligent" or otherwise malicious in intent. And judges buy that kind of argument all the time (even when best practices come from private organizations, not the government).

So the best practices are likely to be legally meaningful in reality, even as the law's backers insist they're not. Of course, this raises the separate question: if the Commission's best practices are meaningless, why are they even in the bill? But since they'll certainly be used in court, that means they'll have great power, and the majority of the Commission will be made up by people who have no experience with the challenges and impossibility of content moderation at scale, no experience with encryption, no experience with the dynamic and rapidly evolving nature of fighting content like CSAM -- and are going to come up with "best practices" while the actual experts in technology and content moderation are in the minority on the panel.

That is yet another recipe for disaster that goes way beyond FOSTA.

The surveillance mousetrap:

Undermining encryption would already be a disaster for privacy and security, but this bill goes even further in its attack on privacy. While it's not explicitly laid out in the bill, the myths and facts document that Blumenthal & Graham are sending around reveals -- repeatedly -- that they think that the way to protect yourself against the liability regime this bill imposes is to scan everything. That is, this is really a surveillance bill in disguise.

Repeatedly in the document, the Senators claim that surveillance scanning tools are "simple [and] readily accessible" and suggest over and over again that its only companies who don't spy on every bit of data that would have anything to worry about under this bill.

It's kind of incredible that this comes just a few months after there was a huge public uproar about Apple's plans to scan people's private data. Experts highlighted how such automated scanning was extremely dangerous and open to abuse and serious privacy concerns. Apple eventually backed down.

But it's clear from Senators Blumenthal & Graham's "myths and facts" document that they think any company that doesn't try to surveil everything should face criminal liability.

And that becomes an even bigger threat when you realize how much of our private lives and data have now moved into the cloud. Whereas it wasn't that long ago that we'd store our digital secrets on local machines, these days, more and more people store more and more of their information in the cloud or on devices with continuous internet access. And Blumenthal and Graham have laid bare that if companies do not scan their cloud storage and devices they have access to, they should face liability under this bill.

So, beyond the threat of crazy state laws, beyond the threat to encryption, beyond the threat from the wacky biased Commission, this bill also suggests the only way to avoid criminal liability is to spy on every user.

So, yes, more people have now recognized that FOSTA was a dangerous disaster that literally has gotten people killed. But EARN IT is way, way worse. This isn't just a new version of FOSTA. This is a much bigger, much more dangerous, much more problematic bill that should never be allowed to become law -- but has tremendous momentum to become law in a very short period of time.

Welcome back to Brookside, Alabama, home of the surprisingly expensive traffic ticket. Home to one (1) Dollar General, nine (9) police officers, two (2) drug dogs (one named "K9 Cash" just in case you had any doubts about the PD's intentions), and one (1) Lt. Governor-ordered state audit. Brookside (pop. 1,253) made national headlines for soaking every passing driver officers could find with excessive fines, fees, vehicle seizures, and inconvenient court dates.

AL.com's investigation showed that under Police Chief Mike Jones (who was hired in 2018), the small town has seen an increase in traffic fines, topping $600,000 in 2020. The department's overachievers patrolled over 114,000 miles in a single year and issued more than 3,000 citations to passing drivers. Chief Mike Jones still had room to complain, despite his department's funding escalating from $79,000 to $524,000 since he took office. The $600,000 fine figure may have seemed abhorrent to anyone outside the suddenly flush Brookside, but Chief Jones said there was room to improve.

The new chief's directives had an immediate effect on officers, who took to the (very few) streets in unmarked cars while wearing unmarked uniforms. The resulting influx of traffic citation defendants pulled officers from the remarkably un-dangerous streets of rural Brookside to perform traffic control for the dozens of out-of-towners driving into Brookside to attend once-a-month court sessions.

The officers also decided the gloves were off and treated alleged moving violators accordingly. According to multiple accounts from Brookside victims, cops made up laws, fabricated charges, and used racist language to address drivers.

As a result of this unexpected national coverage of Chief Mike Jones's Boss Hoggish practices and policies, Chief Jones resigned his position, leaving it to the Brookside metroplex to decide what to do with all the extra cops it had decided to employ while Chief Jones was making it profitable to be a government employee.

Former Chief Jones may be able to duck under the national press radar, but local scrutiny continues, thanks to AL.com. The testimonials continue to pour in, showing Jones and his employees did pretty much everything but shoot someone on Fifth Avenue before being forced to act like real police in the face of the criticism of millions.

Drivers who have had the displeasure of interacting with the Brookside PD aren't happy. And their complaints have made their way to social media services. Apparently, a couple hundred feet of interstate traffic isn't the only thing the Brookside PD has been policing. Officers have been monitoring the internet airwaves to silence complaints and ensure the continued flow of excessive fines and fees.

Michelle Jones made an official complaint to the Alabama Attorney’s General’s office three years ago, arguing that Brookside police stopped her out of jurisdiction, issued a bogus citation and threatened her with more charges after she criticized them on Facebook.

[...]

In 2020, she had explained her case this way to the AG’s office: “The person threatened me with an arrest if I did not take down my Facebook pictures and posts of their police officers, stop sending emails to the local politicians, as well as others, and show them (Brookside police) that I understand law enforcement practices.”

Jones is not alone, as AL.com inadvertently rhymes. Others have come forward to complain about Brookside cops issuing less-than-implicit threats about online criticism. Another driver pulled over by a Brookside officer claimed the cop confiscated her phone, "explaining" that the PD often had drivers try to "stop and record us."

Jones' case is, however, one of the most alarming. After posting to Facebook, she was called by someone who only identified him as "Detective Johnson" of the Brookside Police Department. He demanded she come in and talk to officers at the PD. When she refused, things escalated:

“Detective Johnson had called and asked that I come to the Brookside Police Department to talk to them. After I told him that I would not, he reported that they have two warrants for my arrest. He stated that I issued threats, incited a riot, and slandered the Brookside Police Department in my Facebook posts. He reported that his Police Chief was mad.”

Others who have been pulled over by Brookside officers claim they've been pulled over again -- not for alleged moving violations -- but to be told there would be "consequences" if more negative content was posted to social media.

It's not surprising that a law enforcement agency that has largely blown off the Fourth and Fifth Amendments would treat the First Amendment so cavalierly. About the only thing the Brookside PD hasn't done is demand US military members be quartered by drivers cited for (possibly imaginary) traffic violations.

While it's somewhat satisfying to see Chief Jones flee his position of power after being pinpointed as the person responsible for flagrant abuses of power, it would be far more satisfying to see him run out of town by aggrieved Brookside residents. But, for whatever reason, locals and local officials have nearly nothing to say about three years of exponentially escalating roadside extortion that took place under their noses for three years.

And it was under their noses. The town is incredibly small and residents had to know the budget situation had changed drastically once Chief Jones was hired. Everyone here is culpable. But town officials are the most culpable. They had the power to stop this but they chose to profit from it instead. And for that, they should all be as out of a job as Chief Jones is. The real shame is Mike Jones will probably be able to leverage this bullshit "success" into a better paying job somewhere else in the nation since nothing he did has been found to be illegal. That may change in the future as lawsuits against him and his department move forward, but for far too many cash-strapped communities, a roadside bandit like Chief Jones might just be the hero they need… or at least endorse until it becomes politically inconvenient.

I guess this is nearly an annual thing now. In 2019, we talked about how one YouTuber, GilvaSunner, had over one hundred YouTube videos blocked by Nintendo over copyright claims. GilvaSunner's channel is dedicated to video game music, mostly from Nintendo games. Those videos consist of nothing but that music, as in no footage of video game gameplay. Nintendo, which certainly can take this sort of action from an IP standpoint, also doesn't offer any legit alternative for fans to enjoy this music on any streaming service or the like. Then, in 2020, GilvaSunner had another whole swath of videos consisting of game music blocked by Nintendo over copyright claims. Still no legit alternative for those looking to enjoy music from Nintendo's celebrated catalogue of games.

Well, if Nintendo decided to take 2021 off from this annual project, it certainly has more than made up for it by sending copyright strikes to GilvaSunner's channel at a volume of over 1,300 in one day.

Yesterday morning, YouTuber GilvaSunner posted a tweet explaining that Nintendo had sent them and their channel over 1300 “copyright blocks.” The channel, which is extremely popular, uploads full video game soundtracks, letting fans easily listen to their favorite Kirby or Mario track via YouTube.

After all the copyright blocks went through and the dust settled, GilvaSunner shared a list of all the soundtracks that Nintendo had targeted and blocked from the site. It’s a long list.

A very long list, as you might expect. Now, a couple of items of note here. First, GilvaSunner has insisted that he is not shocked that Nintendo continues to take these actions, nor does he claim that it isn't within its rights to take them. But he's also not going to stop voluntarily.

“I’m also not angry or surprised that Nintendo is doing this, but I do think it’s a bit disappointing there is hardly an alternative,” explained GilvaSunner in a tweet thread from 2020. “If Nintendo thinks this is what needs to be done (to set an example), I will let them take down the channel. It is their content after all.”

Do as you please, in other words, Nintendo. That being said, let's also note that the channel doesn't monetize any of these videos. GilvaSunner doesn't make money off of Nintendo's music.

And neither does Nintendo because, frustratingly, the company still hasn't made this music available on any of the music streaming services we all know and love. Nor has the company announced any plans to. In other words, Nintendo isn't going to provide you with a way to enjoy this music and it is going to shut down anyone who does.

In that scenario, this isn't Nintendo protecting its monetary interests. It's simply the company deciding to take its musical ball and go home. Why? Because Nintendo hates you, that's why.

Cops lie. It's just something they do.

It's something all people do. We just expect cops to do less of it because they're entrusted with enforcing laws, which suggests their level of integrity should be higher than that of the policed. Unfortunately, the opposite often tends to be the case.

There are many reasons cops lie. All of them are self-centered. They lie to cover up misconduct, salvage illegal searches, deny deployment of excessive force, and ensure narratives are preserved when challenged in court.

They also lie to obtain confessions from criminal suspects. There is nothing illegal about this act. Whether or not it crosses constitutional lines tends to come down to the judgment of the judges handling civil rights lawsuits. There's no hard and fast rule as to which lies are unconstitutional so cops do a lot of lying when trying to fit someone for a criminal charge.

Up until recently, it was okay for the Virginia Beach Police Department to use a particularly nefarious form of lying when trying to coax confessions from criminal suspects. While cops will routinely claim evidence and statements point to the person as the prime suspect, very rarely do they actually show this fake evidence to people being interrogated. Not so in Virginia Beach, where fake documents were just part of investigators' toolkits.

Police in Virginia Beach repeatedly used forged documents purporting to be from the state Department of Forensic Science during interrogations, falsely allowing suspects to believe DNA or other forensic evidence had tied them to a crime, the state attorney general revealed Wednesday in announcing an agreement to ban the practice.

This practice was inadvertently exposed by a prosecutor who asked for a certified copy of a report faked up by police investigators. The state's Department of Forensic Science told the commonwealth's attorney no such report existed, leading to an internal investigation by the PD. That happened last April. The following month (May 2021), the Virginia Beach police chief issued an order forbidding the use of this tactic. Since then, the PD has uncovered five times fake forensic documents were used during investigations.

But it wasn't just limited to investigators trying to convince suspects to admit their guilt. One of these fake documents made its way into court, used as evidence (!!) during a bail hearing.

Now, there's a statewide ban on using fake or forged forensic documents during interrogations, thanks to Virginia's Attorney General. There's been no statement made yet suggesting the prosecutions tied to use of fake documents will be examined further to determine whether their use was coercive, and the Attorney General's office has not said whether it will notify convicts who were subjected to this form of police lying.

The PD's apology is somewhat less than authentic:

The Virginia Beach Police Department said in a statement that the technique, “though legal, was not in the spirit of what the community expects.”

There are a lot of things that are technically legal but that most people would find to be an abuse of power. The key is to not engage in questionable practices just because no court has declared them unconstitutional. No doubt the investigators that used fake documents to secure confessions were aware the community at large would frown on such obviously devious behavior. But they did it anyway because winning at all costs is standard MO for most law enforcement agencies. While it's good this discovery led to swift action, the investigation should really be expanded to see what other unsavory techniques are being deployed to extract confessions.

It's been almost exactly a year since Florida Man Governor, Ron DeSantis announced plans to try to pass a law that would ban social media websites from taking down misinformation, abuse, and other types of speech. When the final bill came out, at the very last minute, Florida Rep. Blaise Ingoglia tried to sneak in an amendment that carved out Disney, by saying the law didn't apply to any company that owned a theme park. This took other legislators by surprise, as indicated in this somewhat incredible video of Florida Reps. Anna Eskamani and Andrew Learned confronting Ingoglia over this amendment and what it meant:

In that video, Ingoglia flat out admits that the goal was to try to carve Disney+ out of the definition of a "social media provider." He says they looked at other possible language changes and adding the "theme park" exemption was just the easiest way to exclude Disney. Of course, that never made any sense. In the video he says, repeatedly, that this is to protect "reviews" on Disney+, which is weird because Disney+ doesn't have reviews. He also tries to make weird distinctions between Disney and Netflix which suggests a really confused understanding of Section 230 and how it interacts with first party and third party content. Amusingly, Eskamani points out at one point that Disney owns other websites -- like ESPN.com -- and asks if they, too, would be exempted from the bill, and Ingoglia responds in the most inane way possible: "as long as they follow their policies, everything should be fine." Which... makes no sense and didn't answer the question.

Either way, the bill has since (rightly) been declared unconstitutional (though Florida is appealing), and the issue of the theme park exemption was mostly a sideshow in the ruling.

However, it still left many people scratching their heads as to how that came about -- including intrepid reporter Jason Garcia, who filed some freedom of information requests with the Governor's office to see if he could find out the backstory behind the Disney theme park exemption... and, let me tell you, he hit pay dirt. The emails reveal quite a lot. And, as Garcia notes:

But more telling is the finding that the "amendment" appeared to come directly from Disney. The governor's legislative affairs director, Stephanie Kopelousos, emailed staffers in the Florida House to call her, and then 21 minutes later, emailed them the theme park amendment, with the subject line: "New Disney language." And, just to underline the fact that Kopelousos was corresponding with Disney folks, when some House staffers pushed back on some ideas this happened:

At one point, Disney, through Kopelousos, suggested carving out "journalism" organizations (as if Disney is a journalism organization). That created something of a mess:

Basically, it appears that Disney kept trying to carve itself out and, as Ingoglia more or less admitted, with the clock ticking down on the Florida legislative session, most of Disney's own suggestions were ridiculous -- so the nonsense "theme park exemption" became the easiest to carve out Disney.

Some of these emails are hilarious.

I mean, this isn't a surprise, but it just confirms what was obvious all along. DeSantis proposed this dumb idea, and his minions in the legislature ran with it, without bothering to think through basically any of the consequences of the bill (let alone the constitutional problems with it). And then just as they were about to pass it, a Disney lobbyist realized "shit, we have websites too..." and demanded a carve out.

This is not how law-making is supposed to be done, but it sure is how law-making often is done. It sure shows the kind of soft corruption of the system, in which a large company in the state, like Disney, get to write themselves out of bills.

For what it's worth, Garcia also notes that the Senate companion to the House bill sailed through... basically because Florida state Senator Ray Rodriques flat out lied about it when questioned. He noted that the House had passed a similar bill to one they had passed, noting "the House placed some amendments on it." He then describes the other amendments the House added (which made the bill even dumber, but whatever) and then skips right over the Disney exemption. So then the Senate President asks the Senate to approve the Disney Amendment without anyone even saying what it was. Another state Senator, Perry Thurston, jumps in to ask what's in the amendment.

The Senate President, Wilton Simpson, says: "Senator Rodrigues explained the amendment. The amendment that he explained was this amendment."

Except, that's not true. At all. Rodrigues skipped right over the theme park amendment. And... then the Senate just voted to allow the amendment without ever actually saying what it did. In some ways, this is even more embarrassing than the Eskamani/Learned/Ingoglia discussion in the House. At least they were able to discuss the Disney exemption in the open and admit to what it did. Rodriguez just flat tried to ignore it to get it included...

And people wonder why the public doesn't trust politicians? Perhaps this cronyism and nonsense is why...

Earlier this week we wrote about the problematic reintroduction of the EARN IT Act and explained how it will make children a lot less safe -- exactly the opposite of what its backers claim. Senator Ron Wyden has now put out a statement that succinctly explains the problems of EARN IT, and exactly how it will do incredible harm to the very children it pretends to protect:

As Wyden notes, he introduced a bill that would put $5 billion towards actually fighting child sexual abuse, but for whatever reason that bill is going nowhere, while EARN IT is on the fast track.

Only one of those bills (Wyden's) actually moves us towards really fighting against child sexual exploitation. The other one grandstands and makes children less safe because it fails to understand technology or the law. Yet which one is Congress gearing up to support?

I really wasn't going to write anything about the latest Spotify/Joe Rogan/Neil Young thing. We've posted older case studies about content moderation questions regarding Rogan and Spotify and we should have an upcoming guest post exploring one angle of the Rogan/Young debate that is being worked on.

However, because it's now come up a few times, I did want to address one point and do a little explainer post: Spotify's decisions about Rogan (and Young and others) has absolutely nothing to do with Section 230. At all.

Now, we can blame Spotify a bit for people thinking it does, because (for reasons I do not understand, and for which both its lawyers and its PR people should be replaced), Spotify has tried to make this about "content moderation." Hours after Spotify's internal "content policy" leaked, the company put out a blog post officially releasing the policy... that had already leaked.

And, when you're talking about "content policy" it feels like the same old debates we've had about content moderation and trust and safety and "user generated content" websites and whatnot. But the decision to keep Rogan on the platform has nothing, whatsoever, to do with Section 230. The only issue for Section 230 here is if Rogan did something that created an underlying cause of action -- such as defamation -- then, there might be a Section 230 issue if the defamed individual chose to sue Spotify. Spotify could then use Section 230 to get dismissed from the lawsuit, though the plaintiff could still sue Rogan. (If you want an analogous case, years back, AOL was sued over something Matt Drudge wrote -- after AOL had licensed the Drudge Report in order to distribute it to AOL users -- and the court said that Section 230 protected AOL from a lawsuit -- thought not Drudge himself).

The thing is, no one (that I can find at least) is alleging any actual underlying cause of action against Rogan here. They're just arguing that somehow Section 230 is to blame for Spotify's decision to keep Rogan on their platform.

But the question of Spotify's decision to keep Rogan or not has nothing to do with Section 230 at all. Spotify has every right to decide whether or not to keep Rogan in the same manner that a book publisher gets to decide whether or not they'll publish a book by someone. And that right is protected by the 1st Amendment. If someone sued Spotify for "hosting Joe Rogan," Spotify would win easily, not using Section 230, but for failure to state any actual claim, backed up by the 1st Amendment right of Spotify to work with whatever content providers they want (and not work with ones they don't).

Unfortunately, Spotify's founder Daniel Ek made matters even dumber yesterday by pulling out the mythical and entirely non-existent "platform/publisher" divide:

That LA Times article, by Matt Pearce and Wendy Lee (who are good reporters and should know better), then confuses things as well, implying that Section 230 depends on whether or not a website acts as a "publisher or a platform." It does not. Section 230 applies equally to all "interactive computer services" with regards to content provided by "another information content provider." There is no distinction between "platform" and "publisher." The only issue is if Spotify helps create the content -- in whole or in part -- and courts have determined that merely paying for it doesn't matter here. It's whether or not the company actively had a role in making the actual content (and, more specifically, in contributing to the law-violating nature of any content). But that's not the case here.

Still, with all this talk of "platforms" and "publishers" and "content policies" and content moderation -- people seem very very quick to want to somehow blame Section 230. Superstar tech reporter Kara Swisher went on Anderson Cooper's CNN show and argued that Spotify doesn't deserve Section 230, which is weird, again, because Section 230 isn't implicated at all by Spotify's decision.

“It’s great to have different opinions. It’s not great to put out incorrect facts. There is a difference. There still is, no matter how you slice it.” @karaswisher on Spotify’s decision to add a content advisory to all podcasts that discuss Covid-19. pic.twitter.com/e7aYCe1ALt

— Anderson Cooper 360° (@AC360) February 1, 2022

Then, the folks at Sleeping Giants, an activism group that I think does really great work communicating with advertisers about where their ad dollars are going, also tweeted about the LA Times article suggesting that it was another reason why Section 230 was "too broad." After I (and many others) tweeted at them that this wasn't a 230 issue at all, they quickly apologized and removed the tweet:

Okay, @mmasnick and @evan_greer, two people who are extra knowledgeable on 230 and whose opinions I trust pretty much body slammed me on this, so I’m going to do some penance and dig deeper. Apologies to all.

Lesson learned. Never tweet, then go to a show for two hours. pic.twitter.com/q6W5Yqlrqh

— Sleeping Giants (@slpng_giants) February 3, 2022

But since so many smart people are getting this confused, I wanted to try to do my best to make it clear why this is not a 230 issue.

And the simplest way to do so is this: How would this situation play out any differently if Section 230 didn't exist? If it didn't exist then... Spotify still would be making decisions about whether or not to cut a deal with Rogan. Spotify, just like a publishing company, a newspaper, a TV cable news channel, would have a 1st amendment editorial right to determine who to allow on its platform and who not to. 230 doesn't create a right to editorial discretion (both up and down). That already exists thanks to the 1st Amendment.

Indeed, if you're thinking that Spotify might somehow be liable if someone gets hurt because they listened to someone spreading stupid advice on Rogan's podcast, that's not going to fly -- but, again, because of the 1st Amendment, not Section 230. As Section 230/1st Amendment expert Prof. Jeff Kosseff explained in this great thread, book publishers have (multiple times!) been found to be not liable for dangerous information found in the books they publish.

There has been a lot of talk about Spotify, Joe Rogan, and Section 230. The problem with the discussion is that 230 is irrelevant because there is not a viable cause of action against Spotify -- or Rogan -- for health misinfo. These books from the 80s explain why. pic.twitter.com/o1iFPfVvBt

— Jeff Kosseff (@jkosseff) February 3, 2022

In both of the cases he describes, people were injured, tried to hold the book publisher responsible for telling them to do something dangerous, and the courts said the 1st Amendment doesn't allow that.

or the surrounding legal doctrines to suggest that such a duty should be imposed on publishers . . . Were we tempted to create this duty, the gentle tug of the First Amendment and the values embodied therein would remind us of the social costs."

— Jeff Kosseff (@jkosseff) February 3, 2022

So then, the only way 230 comes into play here is in the specific case of if Rogan broke the law with his speech on the podcast (with defamation being the most obvious possibility). As far as I can tell, Rogan has never been sued for defamation (though he has threatened to sue CNN for defamation, but that's another dumb story for another day). So, the risk here seems minimal. Some people have suggested suing for "medical misinformation" but anything Rogan says along those lines is almost certainly protected 1st Amendment speech as well. But, if Rogan somehow said something that opened him up to a civil suit and the plaintiff also sued Spotify... Section 230 would... help Spotify... a tiny bit? It would likely help Spotify get the case tossed out marginally earlier in the process. But even if we had no 230, based on how the law was before Section 230 (and the examples like those shown by Jeff Kosseff), the courts would likely say Spotify could only be liable if it had knowledge of the illegal nature of the content, which Spotify could easily show it did not -- since Rogan produces the show himself without Spotify.

So in the end, 230 provides Spotify a tiny kind of benefit here -- the same it provides to all websites that host 3rd party content. But that benefit has nothing to do with the decision of whether to keep Rogan or not. It would only apply to the mostly unlikely situation of someone suing, and even then the benefit would be something akin to "getting a case dismissed for $50k instead of $100k, because the case would still be dismissed. Just with slightly less lawyer time.

We can have debates about Joe Rogan. We can have debates about Spotify. We can have debates about Section 230. All may be worth discussing. But the argument that Spotify keeping Rogan has anything to do with Section 230... is just wrong. The 1st Amendment lets Spotify host Rogan's podcast, just like it lets any publisher publish someone's book. Taking it away won't change the calculus for Spotify. It won't make Spotify any more likely to remove Rogan.

So, go ahead and have those other debates, but there's no sense in trying to claim it's all one debate.