Former US Ambassador Sues Apple Because Telegram Users Are Making Him Feel Scared [Update]
from the yeah-i-don't-know-either dept
Here's an interesting lawsuit, brought to you by some familiar names. And by "interesting," I mean "exceedingly stupid."
The lawsuit [PDF] was filed by "Ambassador Marc Ginsberg." Ginsberg last served as an ambassador in 1998. And yet, that title is being used to name him as the plaintiff. The defendant is Apple. In the mix (but not a defendant) is Telegram, a popular and often controversial messaging app that has served as a mouthpiece for alt-right personalities and others who have been banned from more mainstream social media services.
Ginsberg also runs the Coalition for A Safer Web (the co-plaintiff in this lawsuit), a non-profit whose mission is "inter alia, to promote new public/private partnerships to facilitate the expeditious removal of extremist and terrorist incitement and instruction content from social media platforms." The executive team at CSW includes Dr. Demetrick Pennie, a former Dallas Police sergeant and, according to the site, "leading CDA 230 expert."
Here's some of Dr. Pennie's 230 expertise at work:
In January, Dallas Police Sergeant Demetrick Pennie sued [PDF] Twitter, Google, and Facebook, claiming they were directly responsible for "radicalizing" Micah Johnson, who shot and killed five police officers in Dallas, Texas. According to Pennie, the social media companies actively allowed and encouraged terrorist use of their platforms to spread their message and attract participants.
Pennie's lawsuit was tossed because the court could find nothing linking terrorist organization Hamas to the Dallas shooter, despite Pennie's baseless proclamations otherwise. And his lawsuit was so off-base -- suing social media companies over the shooting of cops by a Dallas resident -- the court couldn't even be bothered to address the Section 230 ramifications. Pennie was represented in this case by Keith Altman of Excolo Law (often in conjunction with 1-800-LAW-FIRM), who has filed dozens of similarly stupid lawsuits trying to hold social media companies directly responsible for the violent acts of terrorists.
"Ambassador" Marc Ginsberg is suing Apple because of content Telegram users post. I'm not even kidding. And he's being represented by ex-Excolo litigator Keith Altman, who has moved on to Lento Law Group. But he's apparently still doing the same kind of litigation: suing the wrong parties over things other people are doing or have done.
The lawsuit features two plaintiffs (Ginsberg, Coalition for a Safer Web) because CSW employs Ginsberg and provides him with an iPhone. Apple is the defendant because it has refused to remove Telegram from its app store. The lawsuit is full of relevant facts and evidence, like this:
Currently, Defendant Apple sells the iPad Mini 5 for $399+, the 2020 iPad is $329+, the 2020 iPad Air is $599+, the 12.9-inch iPad Pro is $999+, the 11- inch iPad Pro is $799+, the 12.9-inch iPad Pro is $799, and the 11-inch iPad Pro is $649+.
And this:
Defendant Apple sells the Series 3 Apple Watch for a starting price of $199, the Apple Watch SE S5 for a starting price of $279, and an Apple Watch Series 6 for a starting price of $399.
Ginsberg claims the Telegram app violates Apple's developer guidelines and California's hate speech law and should be removed from the app store. Because Apple hasn't removed the app, it has been downloaded and used by people who engage in anti-Semitic speech. (Ginsberg is Jewish.) Because Telegram refuses to remove this content, it somehow leaks into Ginsberg's life through the app store -- even if Ginsberg has never downloaded the app or engaged with its users.
Defendant breached their duty by continuing to host Telegram on the App Store despite Defendant’s knowledge that Telegram was being used to incite violence including violence against African Americans and Jews.
Ambassador Ginsberg is a Jewish person whose professional work requires he maintain a presence in the public eye.
As a result of this Anti-Semitic campaign that was coordinated on the Telegram app, Ambassador Ginsberg is forced to live in apprehension of religiously motivated violence being perpetrated against him.
Ambassador Ginsberg’s fear of religious violence has caused him substantial emotional harm including depression and anxiety.
All of this may be true. But suing Apple over distressing content carried on Telegram isn't going to work. Apple doesn't have a duty to remove anything from its app store that may cause distress to anyone. If anyone's responsible for the racist content being spread on Telegram, it's the people posting it. That targeted harassment is possibly being aided by a chat app is concerning, but Apple isn't culpable for the actions of users of an app it allows customers to download and use.
And conclusory arguments like this aren't going to convince a judge otherwise.
If was foreseeable to Apple that by allowing Telegram to continue to be available on the App Store that Apple’s conduct could lead to fear of violence by individuals, such as Ambassador Ginsberg.
By failing to remove Telegram from the Apple App Store, Defendant has proximately caused Ambassador Ginsberg’s emotional distress.
Plaintiff Ambassador Ginsberg has suffered injuries in an amount that exceeds $75,000.
The arguments get even worse. Ginsberg claims Apple deceived him into purchasing an iPhone by promising to enforce its app store restrictions -- restrictions Ginsberg claims are violated by Telegram remaining available. But Telegram appears to comply with Apple's rules for apps relying on third-party content because Telegram allows users to block accounts/content, report violations/abusive accounts, and provides contact info for users seeking to have questions and concerns addressed.
Somehow, Telegram's continued presence in the app store has rendered Ginsberg's phone nearly useless.
Defendant’s failure to enforce their own guidelines against Telegram has caused Ambassador Ginsberg and CSW to suffer economic loss by being deprived of a key benefit of the purchase and use of the Apple iPhone XR.
I don't see how this makes it past a motion to dismiss. Ginsberg has a problem with Telegram users' content. So he's suing… Apple. Even assuming Apple is wrong to allow Telegram in its app store, Telegram is multi-platform. It has an Android app and a desktop version. The racist conspiracies Ginsberg believes are targeting him and causing him verifiable, recoupable harm could have originated on other platforms. Suing Apple into submission isn't going to stop the behavior that's bothering Ginsberg. It's only going to enrich Ginsberg.
And that appears to be the whole point of this lawsuit: to hit the biggest target with the broadest allegations and hope for a quick settlement. There's nothing in here that carries any legal weight or explains why Apple should be held responsible for the racist content that has (allegedly) caused Ginsberg distress.
UPDATE: Ginsberg has now sued Google for the same thing, claiming Google isn't protecting him from Telegram users' content by allowing it to remain in the Google Play store. That covers another outlet for Telegram, but once again, suing Google isn't going to stop Telegram users from posting anti-Semitic content or otherwise making Ginsberg feel unsafe.
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Filed Under: 1st amendment, demetrick pennie, hate speech, intermediary liability, keith altman, liability, marc ginsberg, section 230
Companies: a safer web, apple, excolo law, google, lento law group, telegram
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bad guys use paper too, you know
If was foreseeable to OfficeMax that by allowing Hammermill Paper to continue to be available in its store that OfficeMax’s conduct could lead to fear of violence by individuals, such as [literally anyone I guess].
By failing to remove Hammermill Paper from the OfficeMax Store, Defendant has proximately caused [Plaintiff's] emotional distress.
Plaintiff has suffered injuries in an amount that exceeds $75,000.
Defendant’s failure to enforce their own guidelines against Hammermill Paper has caused [Plaintiff 1] and [Plaintiff 2] to suffer economic loss by being deprived of a key benefit of the purchase and use of their laser printer.
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He's really not going to like what people can say offline...
Place your bets ladies and gentlemen, cheap PR stunt or attempt to score some quick cash from a 'go away' settlement?
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Yes.
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Re: He's really not going to like what people can say offline...
"Why not both?"
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Apple probably will cave
Apple already turned the screws on Telegram at the behest of the government of Belarus. Note in the comments, that someone points out that Apple doesn't allow Telegram to only block iOS users and alert them that they need to use another version of Telegram to communicate in those chanels.
It'll be interesting to see what Google does. If they fold too, it will be time for us to start considering legislative options that remove the ability of app stores to make decisions based on the content of the platform. The alternative is essentially allowing every tin horn dictator and butthurt former ambassador to hold companies hostage through the app stores.
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From 'Do X or you're out' to 'You're stuck with X, too bad.'
If they fold too, it will be time for us to start considering legislative options that remove the ability of app stores to make decisions based on the content of the platform.
That would be much, much worse, as it would turn platforms into free-for-alls where either they couldn't refuse to host apps, or once an app was accepted they were stuck with it, both of which would be worse than just having to deal with idiot politicians/former ambassadors every so often.
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You're just reaching here...
Let's go back to what I actually said:
That's simple, and straight to the point. It means that Apple could not lawfully dictate a content moderation policy to Telegram, Gab, Facebook, etc. as a condition for having an app.
Nothing more, nothing less. It doesn't even limit Apple's ability to do things like block pornographic games, it just means that where the app is meant to simply be an entry point into another system Apple cannot exert imperial control via the app store.
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Re: You're just reaching here...
It doesn't even limit Apple's ability to do things like block pornographic games, it just means that where the app is meant to simply be an entry point into another system Apple cannot exert imperial control via the app store.
So they can't control their own ecosystem.
I find it hilarious that someone thinks that if they somehow have an online presence, they're also entitled to have an app. Why couldn't Gab or Telegram just be accessed through a web browser if Apple/Android tells them to fuck off?
Seems like there's a whole bunch of whiners making a problem where there isn't one.
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Re: Re: You're just reaching here...
Xi and the President of Belarus thank you for your advocacy on their behalf.
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Re: Re: Re: You're just reaching here...
Yup - because if you can't access it via an app, but can via a browser, well that means you can't access it - if you're the typical luddite perpetual victim conservative, that is.
Free speech and forced convenience. Tell me again how that's not like China & Eastern Europe...
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Re: Re: Re: Re: You're just reaching here...
HTML5 sucks compared to having a native option on mobile.
Because what is actually being done in Belarus and China is actually tyranny, whereas forcing Apple to not impose its content standards on apps that are pass throughs to otherwise lawful services is nothing more than a nuisance.
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Re: Re: Re: Re: Re: You're just reaching here...
HTML5 sucks compared to having a native option on mobile.
So it's more being lazy than being censored.
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Re: Re: Re: Re: Re: You're just reaching here...
"HTML5 sucks compared to having a native option on mobile."
So, you're whining about totalitarianism because even though you can access all content, it's a bit less pretty for your eyes? Not a great argument - especially since so many apps are just HTML5 in a wrapper anyway.
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Re: Re: Re: Re: Re: You're just reaching here...
"HTML5 sucks compared to having a native option on mobile."
...and sideloading the apk allows you to natively install whatever you want on Android, at least.
So tell us again, please, why on earth Google and Apple should be forced to allow actors on to their private platforms and their private ecosystem when there are - literally - as many other ways for a platform to provide a native client as there are addresses in ipv6?
That something is inconvenient is not fixable by quoting Marx on how, for the good of all, the state must seize the means of production and enforce the servitude of private corporations.
"Because what is actually being done in Belarus and China is actually tyranny, whereas forcing Apple to not impose its content standards on apps that are pass throughs to otherwise lawful services is..."
...Tyranny. Nothing less.
You just won't stop peddling the new alt-right Marxism, will you?
What you advocate is that a private entity must be compelled to provide service for what said entity finds personally repulsive.
The legal precedence for making it illegal for someone to throw another person out of their premises means the concept of property is compromised as well.
There are only two types of people willing to advocate this, and I somehow doubt that you're an adherent of classical communism.
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Re: Re: You're just reaching here...
Where is it written that they are entitled to as a matter of law?
Oh, right, the DMCA. Sorry.
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Re: Re: Re: You're just reaching here...
And the 1st Amendment.
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Re: You're just reaching here...
Nothing more, nothing less. It doesn't even limit Apple's ability to do things like block pornographic games, it just means that where the app is meant to simply be an entry point into another system Apple cannot exert imperial control via the app store.
Running with the porn angle, say Apple approved an app for sharing non-porn content, then at some point(maybe after a shift in management, maybe the devs just changed their mind) the app devs decided that porn was okay and the app quickly became known as the place to get your porn fix. Under the idea that you seem to be suggesting even if Apple might have blocked the app had it originally been a porn-fest since it only became that way after it was given the greenlight Apple would be stuck with it, like it or not, or if you want to argue that they can still enforce the current rules they'd be stuck with either letting it stay or banning the app entirely at that point, no 'clean up your act or you're out'.
If you want you can swap out porn for other potentially objectionable content but the point remains the same, much like other forms of moderation if you take away the ability to moderate and a platform's ability to set rules then things are likely to get messy as they either shift to extremely stringent rules or have to let the assholes run wild.
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Re: Re: You're just reaching here...
Well, Apple's already been down this route with Gab. As Gab pointed out, they were told that no pornographic content was allowed--and yet Reddit, Tumblr and Twitter were allowed to have pornographic content available through the app.
The law currently allows Apple to not only set content policies for other platforms, but to selectively enforce them in ways that are destructive to competition.
So I get where you're coming from, but you seem to be assuming Apple actually enforces its policies fairly (to the best of its reasonable ability). That's demonstrably not true, and if we stop short of allowing the feds to block them from having content policies imposed on others, all enforcement should have to be consistent.
At the end of the day, there is an intrinsic antitrust aspect to all of this. Anyone who has paid attention to how market trends work in these industries knows damn well that the industry always bifurcates between one main platform, one rebel platform and a few that never amount to anything. It's just the nature of the beast and public policy must reflect that.
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Re: Re: Re: You're just reaching here...
The law currently allows Apple to not only set content policies for other platforms, but to selectively enforce them in ways that are destructive to competition.
So don't let the free market decide?
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You know we tried that...
And turns out that you do need rigorous antitrust to keep things free and lively.
Also, anyone who tracks the industry knows that it naturally consolidates harder and faster than others because of the cost of supporting multiple competing, incompatible platforms.
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Re: Re: Re: You're just reaching here...
The law currently allows Apple to not only set content policies for other platforms, but to selectively enforce them in ways that are destructive to competition.
Without knowing the details and Apple's response I can't make any specific comments but the first two things that come to mind is that context matters and bias is legal last I checked. If I had a store with a poster board that I let people put fliers up on I might be fine with a random group advertising a meet-and-greet but not so fine if a group known for bigotry tried the same, even if the underlying action, that of putting up a flier for a social gathering was the same, and if someone tried to tell me 'all fliers regarding social gatherings must be treated the same' I'd be strongly considering just banning those altogether.
The law currently allows Apple to not only set content policies for other platforms, but to selectively enforce them in ways that are destructive to competition.
Competition with who would seem to be the big question there, as there's a big difference between Apple using it's power to go after it's own competitors versus them using it to give better or worse treatment among a group that competes with each other due to them liking or not liking those among the group.
Given platforms and people are allowed to have biases while it may be concerning that a platform isn't applying their rules consistently I'm not seeing that that rises to the point of telling them that they must do so, as that would seem to strip context out of the equation and remove the ability to act differently based upon different circumstances or desires of the platform owner.
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Re: Re: Re: Re: You're just reaching here...
Here you go. Unfortunately for Apple, Gab took screenshots of all of their interactions.
Note that Gab did call out the double standard as Tumblr hosted a shit ton of porn, including being a known hub for illegal porn.
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Re: Re: Re: Re: Re: You're just reaching here...
Well, it's their store, their rules. It may suck how inconsistent they apply those rules, but it should come as no surprise since it has been like that almost from the first day they opened it.
Apple also uses its store in a predatory way, they use it as a piggy-bank of novel ideas and concepts which they raid from time to time, and the original app gets the boot since "it duplicates an official app or functionality".
In short, Apple is scummy so a general caveat emporium applies.
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Re: Re: Re: Re: Re: You're just reaching here...
Curious as to why you'd link to a wayback snapshot, but whatever works I guess. Assuming you take Gab's claims and the snapshots at face value there would seem to be a difference in how platforms are treated, which is something to call Apple out on to be sure, but as I've noted a few times bias is legal in general so not sure it would rise to the level of justifying government intervention.
As for the latter link that does not strike me as an accurate framing of the situation, as the article notes that they checked uploads against a database of such material and blocked any matches, however they couldn't prevent everything at that stage because not every instance of illegal porn was in that database, so they were left playing catch-up and taking it down as it was reported.
By the standard of 'if X made it into the platform it's a 'known hub' for X' pretty sure you could tar almost any platform that allows user submitted content and that's been around long enough with that label, because there'll always be that one jackass posting for shock value or some scum posting it in the hopes that others will follow suit.
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Re: Re: Re: Re: Re: Re: You're just reaching here...
"Assuming you take Gab's claims and the snapshots at face value there would seem to be a difference in how platforms are treated, which is something to call Apple out on to be sure..."
Why?
A bar owner is free to impose any standard they wish, even when that means giving a friend of theirs the right to sit behind the counter while only allowing the guy wearing a nazi badge to order a big pint of Get Lost.
The only thing to call Apple out on in a legal or ethical sense is if they somehow prohibit a sale or installation of the impacted app anywhere, leading to an antitrust suit. But them just saying "Not on our platform" is as kosher as kosher gets.
Now, with Gab being a twitter analogue which proudly allows a long list of hashtag threads containing the N-word and references to the "jewish conspiracy" there are already sufficient reasons for Apple to toss them out as violators of the ToS. Uncertain why they'd even need to add "porn" to the list. Seems redundant.
Personally I've started to peg to a few tells of this particular AC, because in the end what they're trying to peddle is still the argument that it should not be OK for a property owner to dictate which people they get to allow or ban from said property.
And the logic backing that assertion remains the same as what Koby - and in less polite language, what Shel10 and restless94110 kept trying to sell us.
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Re: Re: Re: Re: Re: Re: Re: You're just reaching here...
My concern such as it is is basically the honesty angle, as that's something I value highly. If Apple wants to apply their rules more stringently to one platform over another because one of them is a festering cesspit or they just don't like the kind of people on that platform then have at it, just be honest rather than playing coy.
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Re: Re: Re: Re: Re: Re: Re: Re: You're just reaching here...
So, you want transparency, honesty and a statement of political intent? That's a fine wish, but one you will never get from any major corporation and its board members.
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Re: Re: Re: Re: Re: Re: Re: Re: You're just reaching here...
"My concern such as it is is basically the honesty angle, as that's something I value highly."
This is a different kettle of fish though. You're talking about consumer protection. For the record I agree that what government should regulate is a corporations ability to get away with fraudulent claims; What it says on the tin you bought is what you should find in it.
Terms of Services and EULA's should be easily readable, not a body of legalese you could hide Mein Kampf in without anyone noticing. Basic consumer protection laws should take corporations to task when they fail to fulfill their public policies and code of conduct.
To continue my oft-used Bar metaphor, I have no problem at all if a bar owner needs to put up a sign clearly stating the type of people who will not be served, as long as said bar owner is still free to toss out anyone s/he does not want in their bar.
*"Management reserves the right to refuse service to anyone" is a clear statement that your presence in the bar relies on the good will of the publican.
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Re: You're just reaching here...
Sorry, try again. Right now you are at the point of the government dictating to Apple what it must carry in its store.
It has always been my understanding that stores' proprietors get to choose what they carry in their stores. If they dionot carry what I want, I could go elsewhere. A vendor with whom I have a relationship of long standing may even tell me that, while he does not carry what I need, he either has an alternative or can suggest where a particular need may be met.
You might have an argument that Apple ought not have a monopoly on what may be loaded on devices it sells to users, but that is essentially a question of who owns the device. If I own it, naturally I am inclined to think that I ought to be able to accessorize it as I will, and if that means a ``jailbreak'', well, so be it.
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Awkward
If Apple/Google defend themselves with the 3rd party doctrine, I bet they'll win in this situation. But it creates an awkward circumstance if other censored social media companies sue Apple/Google for removal from the app stores. The same court arguments could be used against them. Apple/Google will need to thread this needle extremely carefully.
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Re: Awkward
I Am Not A Lawyer, but that sounds incorrect - I don't see how this leads to an awkward situation for these companies.
Please explain in further detail, I'm interested to know what the logic is, here.
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Re: Re: Awkward
Possible Guinsberg lawsuit, Apple/Google says "Telegram follows our rules for the app store, because they allow users to block content, and there is a way to report content we don't like." Probably will result in a case dismissal.
Possible future lawsuit, app company says "Our app complies for inclusion on the Apple/Google store because it had blocking and reporting capabilities. Yet our app was censored and now we want damages." Could be difficult for Apple/Google to defend against, if they previously attested to the same facts in a different case.
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Re: Re: Re: Awkward
I'm sorry, are you speaking in tongues? At what point does your answer relate to the "third party doctrine" that you mentioned in the earlier post?
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Re: Re: Re: Re: Awkward
"But Telegram appears to comply with Apple's rules for apps relying on third-party content because Telegram allows users to block accounts/content, report violations/abusive accounts, and provides contact info for users seeking to have questions and concerns addressed."
I shouldn't have used the term "doctrine". Hopefully, this part of the article will inform you about the problem.
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Re: Re: Re: Awkward
Possible future lawsuit, app company says "Our app complies for inclusion on the Apple/Google store because it had blocking and reporting capabilities. Yet our app was censored and now we want damages." Could be difficult for Apple/Google to defend against, if they previously attested to the same facts in a different case.
Why would it be difficult to defend? They just can say "this app violated our policies and therefore we removed it" or "this app did not violate our policies, so we didn't remove it."
No difficulty. No awkwardness.
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Re: Re: Re: Awkward
The same way that Harvard's policy of not admitting people who lie on their application means that you are guaranteed admission so long as you don't lie on your application.
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Re: Awkward
Uh, no, Koby. You're wrong.
Why are you always wrong?
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Re: Awkward
The third-party doctrine is about search warrants. It is completely irrelevant in a civil lawsuit between private parties.
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All been said before.
Why dont he read Techdirt instead?
Why does he read the telegram in the first place, and scare himself?
(dont he need to read something to know whats being said?)
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hmm. it seems he got older but sure as hell didn't get any wiser!
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"Ambassador"
I hope that Apple drop the title in their response. He's not an ambassador.
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What's next? Is he going to sue the entire internet and all computer manufacturers because Telegram is available as a desktop version?
Hey Vanna, can I buy a clue for this guy? If he dosen't want to see what is on Telegraph, DON'T OPEN THE FUCKING APP! This isn't rocket surgery.
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This is the doctrine of "sue the proximate cause, not the underlying cause" because..... deep pockets?
There is no needle to thread here, the defense will simply state that no evidence has been provided to prove that Apple (and Google) did, with malice aforethought, conspire with certain of its product users with the intention of causing harm, emotionally or otherwise, to non-conspiratorial members of the public who happened to purchase any of their products. Nor did they do so by purest chance accident.
And Apple/Google will be 'nice', and not mention that Altman has a repetitive pattern of bringing similarly merit-less suits for nuisance value only, likely in hopes of gaining an out-of-court settlement. This is known as "When the facts are on your side, pound the facts. When the law is on your side, pound the law. When all you have on your side is bullshit, pound the court of public opinion."
At least Altman hasn't claimed that his grandfather has died....so far.
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Absurd
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