If We're Going To Talk About Discrimination In Online Ads, We Need To Talk About Roommates.com

from the deja-vu-all-over-again dept

It has been strange to see people speak about Section 230 and illegal discrimination as if it were somehow a new issue to arise. In fact, one of the seminal court cases that articulated the parameters of Section 230, the Roommates.com case, did so in the context of housing discrimination. It's worth taking a look at what happened in that litigation and how it bears on the current debate.

Roommates.com was (and apparently remains) a specialized platform that does what it says on the tin: allow people to advertise for roommates. Back when the lawsuit began, it allowed people who were posting for roommates to include racial preferences in their ads, and it did so in two ways: (1) through a text box, where people could write anything about the roommate situation they were looking for, and (2) through answers to mandatory questions about roommate preferences.

Roommates.com got sued by the Fair Housing Councils of the San Fernando Valley and San Diego for violating federal (FHA) and state (FEHA) fair housing law for allowing advertisers to express these discriminatory preferences. It pled a Section 230 defense, because the allegedly offending ads were user ads. But, in a notable Ninth Circuit decision, it both won and it lost.

In sum, the court found that Section 230 indeed applied to the user expression supplied through the text box. That expression, for better or worse, was entirely created by the user. If something was wrong with it, it was the user who had made it wrongful and the user, as the information content provider, who could be held responsible—but not, per Section 230, the Roommates.com platform, which was the interactive computer service provider for purposes of the statute and therefore immune from liability for it.

But the mandatory questions were another story. The court was concerned that, if these ads were illegally discriminatory, the platform had been a party to the creation of that illegality by prompting the user to express discriminatory preferences. And so the court found that Section 230 did not provide the platform a defense to any claim predicated on the content elicited by these questions.

Even though it was a split and somewhat messy decision, the Roommates.com case has held up over the years and provided subsequent courts with some guidance for how to figure out when Section 230 should apply. There are still fights around the edges, but figuring out whether it should apply has basically boiled down to determining who imbued the content with its allegedly wrongful quality. If the platform, then it's on the hook as much as the user may be. But its contribution to wrongful content's creation still had to be more substantive than merely offering the user the opportunity to express something illegal.

The fact that Roommate encourages subscribers to provide something in response to the prompt is not enough to make it a "develop[er]" of the information under the common-sense interpretation of the term we adopt today. It is entirely consistent with Roommate's business model to have subscribers disclose as much about themselves and their preferences as they are willing to provide. But Roommate does not tell subscribers what kind of information they should or must include as "Additional Comments," and certainly does not encourage or enhance any discriminatory content created by users. Its simple, generic prompt does not make it a developer of the information posted. [p. 1174].

The reason it is so important to hold onto that distinction is because the Roommates.com litigation has a punchline. The case didn't end there, with that first Ninth Circuit decision. After several more years of litigation there was a another Ninth Circuit decision in the case, this time on the merits of the discrimination claim.

And the claim failed. Per the Ninth Circuit, roommate situations are so intimate that the First Amendment rights of free association must be allowed to prevail and people be able to choose whom they live with by any means they like, even if its xenophobic prejudice.

Because of a roommate's unfettered access to the home, choosing a roommate implicates significant privacy and safety considerations. The home is the center of our private lives. Roommates note our comings and goings, observe whom we bring back at night, hear what songs we sing in the shower, see us in various stages of undress and learn intimate details most of us prefer to keep private. Roommates also have access to our physical belongings and to our person. As the Supreme Court recognized, "[w]e are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings." Minnesota v. Olson, 495 U.S. 91, 99, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). Taking on a roommate means giving him full access to the space where we are most vulnerable. [p. 1221]

[…].

Government regulation of an individual's ability to pick a roommate thus intrudes into the home, which "is entitled to special protection as the center of the private lives of our people." Minnesota v. Carter, 525 U.S. 83, 99, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (Kennedy, J., concurring). "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home." Lawrence v. Texas, 539 U.S. 558, 562, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). Holding that the FHA applies inside a home or apartment would allow the government to restrict our ability to choose roommates compatible with our lifestyles. This would be a serious invasion of privacy, autonomy and security. [id.].

[…].

Because precluding individuals from selecting roommates based on their sex, sexual orientation and familial status raises substantial constitutional concerns, we interpret the FHA and FEHA as not applying to the sharing of living units. Therefore, we hold that Roommate's prompting, sorting and publishing of information to facilitate roommate selection is not forbidden by the FHA or FEHA. [p. 1223]

This ruling is important on a few fronts. In terms of substance, it means that any law that itself tries to ban discrimination may itself have constitutional problems. It may be just, proper, and even affirmatively Constitutional to ban it in many or even most contexts. But, as this decision explains, it isn't necessarily so in all contexts, and it risks harm to people and the liberty interests that protect them to ignore this nuance.

Meanwhile, from a Section 230 perspective, the decision meant that a platform got dragged through years and years of expensive litigation only to ultimately be exonerated. It's amazing it even managed to survive, as many platforms needlessly put through the litigation grinder don't. And that's a big reason why we have Section 230, because we want to make sure platforms can't get bled dry before being found not liable. It is not ultimate liability that can crush them; it's the litigation itself that can tear them to pieces and force them to shut down or at least severely restrict even lawful content.

Section 230 is designed to avoid these outcomes, and it's important that we not let our distaste, however justified, for some of the content internet users may create prompt us to make the platforms they use vulnerable to such ruin. Not if we want to make sure internet services can still remain available to facilitate the content that we prefer they carry instead.

Filed Under: civil rights, discrimination, online ads, section 230
Companies: roommates

Now It's The Democrats Turn To Destroy The Open Internet: Mark Warner's 230 Reform Bill Is A Dumpster Fire Of Cluelessness

from the what-the-fuck-is-this-I-don't-even... dept

For the past few months we've been seeing a ton of terrible/ridiculous/awful/unconstitutional bills coming from mostly Republicans to try to wipe out or undermine Section 230. Most of those were focused on trying to force websites to do less content moderation. Now that the Democrats are back in power, it appears we're going to be getting the opposite. Senator Mark Warner has introduced his new Section 230 reform bill, called the SAFE TECH Act ("Safeguarding Against Fraud, Exploitation, Threats, Extremism, and Consumer Harms Act" co-sponsored by Senators Mazie Hirono and Amy Klobuchar), and it is one of the worst Section 230 bills I've seen. It is difficult to explain just how bad this bill is concisely, because it has so many bad ideas crammed into one single bill. It's as if none of these three Senators or their staff spoke to anyone who actually understands how the internet works, or how content moderation/trust and safety works. It's stunning in the ignorance it displays.

About the only good thing I'll say about it, is that (unlike most bills) at least Warner released a redline version to show how it would actually (massively) change Section 230. He also put out an incredibly disingenuous FAQ that flat out lies about... nearly everything. We'll go through that in a bit.

Basically, this bill takes nearly every single idea that people who want there to be less speech online have had, and dumped it all into one bill. There's a lot in there, and nearly all of it is bad. Last week I wrote about a draft bill in the House that suggested carving out civil rights law from Section 230. In my analysis of that bill, I noted that it appeared to come from a well meaning place, but was simply misguided. This bill, which also includes a carveout for civil rights law, does not come from a well meaning place. The drafters of the bill are either malicious or ignorant. It's not a good look for Senators Warner, Hirono, and Klobuchar.

A key thing to recognize is that it's obvious that the drafters of this bill believe the myth that 230 protects "big" tech companies. The bill is written as if it is only talking about Facebook, YouTube, and Twitter. Warner handwaves away the idea that the bill would destroy smaller companies in his announcement by ridiculously (and against all evidence to the contrary) saying that startups are too small to sue, so it would only be used against larger companies.

The most devious and nefarious part of this is that the bill effectively wipes out Section 230 protections for the entire internet while pretending it's just a minor change. This bill is about as close to a full repeal of Section 230 as you can get realistically. In the press release about the bill, Warner claims that it's just a tweak to 230 because "these changes to Section 230 do not guarantee that platforms will be held liable in all, or even most, cases," but that would also be true with repeal. Because most things that people want to blame on internet websites are not actually violations of the law. And, assuming a form of distributor liability is what the courts decide on, that would mean websites wouldn't be liable for most things on their site anyway -- but would result in long and costly legal battles before they could prove that.

And this bill guarantees the same exact thing. The biggest, most consequential change, is that it takes the famous "26 words," which are Section (c)(1) of the current law, removes the protections entirely if money exchanges hands, and then changes it from an immunity to merely "an affirmative defense." That may not seem like much, but it basically wipes out all of the actual benefits of 230.

Saying that you don't get (c)(1) if money exchanges hands, basically wipes out Section 230 for many, many services. All web hosting would no longer be protected by Section 230. If, as many people have been demanding, social media offers up paid options (say, to remove ads), doing so would remove their 230 protections. Incredibly, this bill is coming from the same people who have been saying that Facebook and Twitter should offer a "paid version" without ads or tracking -- but, under this bill, if they do that, they'd lose 230! Incredibly, under this bill, the two cases that inspired Section 230 -- the CompuServe case and the Prodigy case -- would not be eligible for 230 protections, because both were paid services!

The switch from (c)(1) being an immunity to being "an affirmative defense" in which the website "has a burden of proving by a preponderance of the evidence" basically erases the key procedural benefits of Section 230 -- which is that it gets cases tossed right up front. This gets somewhat deep in the weeds of civil procedure, but having (c)(1) as an immunity allows companies to file a relatively straightforward motion to dismiss upfront, without having to do a lot of expensive legal work, and argue that, because of 230, there is no legitimate claim in the complaint, even if everything in that complaint is accurate. This is the key benefit of 230 in protecting websites.

But by making it an affirmative defense, which the website has to prove by a preponderance of evidence, you've just made everything a lot more expensive and it will take a lot longer to deal with. Not only are you going to have to pay a lot of expensive lawyers a lot more money to make a preponderance of the evidence claim, many courts find that such determinations are issues of fact, not law, meaning that they need to go to a jury. If a case goes to trial and has a jury, you're talking about it costing at least a million dollars for any company, and probably a lot more.

This wipes out the entire benefit of Section 230 by itself. Most companies, of course, will then try to avoid just having to face this by quickly taking down anything even remotely questionable or anything that people complain about. And they'll still get sued. This bill would absolutely destroy most of the open web.

The second massive change, is that it would exclude Section 230 entirely from "injunctive relief" claims for failing to remove "harmful" content. In other words, this would allow a bevy of lawsuits from people who just want something taken offline (and aren't asking for monetary damages), that they will claim creates "harm" to them, and the websites can no longer respond with 230. While supporters of this bill might argue that filing such a lawsuit alone would be expensive, so this wouldn't be abused, that ignores how frequently we've seen especially the rich and powerful try to use any legal means possible to remove content they dislike from the internet. This clause is like a free shot for the rich and powerful to silence criticism. It's like a pro-SLAPP clause!

The bill then adds a bunch of other carveouts from 230: civil rights law, antitrust, harassment, stalking, human rights law and wrongful death. As we already discussed, while it may sound good to say this can't be used to block civil rights cases, in actual practice a bunch of recent "civil rights" cases have involved white supremacists, out-and-out misogynists, and other terrible people claiming that their civil rights were violated by being kicked off of platforms. Enabling such lawsuits seems incredibly short sighted.

This bill is dangerous.

And what's truly obnoxious about it is that in the FAQ about it, Mark Warner pretends otherwise.

Q: Won’t removing Section 230 immunity bring back the perverse incentive structure Section 230 was meant to address and actually lead to less content moderation?

A: No. Section 230 effectively cut off the development of case law for the past 25 years based on the flawed reasoning of a single state court judge. By peeling back Section 230 immunity for particularly serious harms—such as civil rights violations, stalking, and harassment—internet platforms will be incentivized to ramp up their address problems in these areas, problems that have otherwise been allowed to fester and grow without exposure to potential liability. These reforms do not render ICS providers liable for all – or even most – third-party content, including where they engage in moderation activity. Nor do these reforms alter the already-steep hill plaintiffs must already climb. Rather, these reforms allow victims an opportunity to seek redress where they can potentially show that a platform has directly contributed to their injury.

This is magic wand thinking. Oh, if we just make websites potentially liable for what people do on them, won't the websites magically fix these societal level problems? No, that's not what happens. Instead, smaller websites decide it's not worth the hassle at all and stop accepting 3rd party content, and larger companies just get more aggressive in policing all sorts of protected speech. Would a "#MeToo" situation ever be allowed to happen if this law was in place? No fucking way. Harvey Weinstein and all sorts of powerful rich men would sue the shit out of Facebook and Twitter to stop that.

The final sentence above is the most pernicious of all. Section 230 already does not apply if the platform contributed to the injury. It already doesn't apply if the platform helped to create the injurious content. What this bill does is not allow for that which is already allowed. It completely wipes most 230 protections off the map.

Q: Will making internet platforms liable for third-party content lead internet platforms to overreach in their content moderation efforts thereby chilling speech from the very groups you’re looking to protect?

A: No. The SAFE TECH Act was developed in partnership with, and has the strong support of, a wide array of civil rights groups. We need to recognize that threats, harassment, and targeted intimidation silence the voices of far too many racial minorities, women, and other marginalized groups by driving them from social media and other online platforms. Under the status quo, platforms have been able to ignore these harms – even where their continued inaction, and even their product design, contributes to these injustices. As these online harms spread to the real world—in places like Charlottesville, Kenosha, and at the U.S. Capitol—their negative impact has only become more unmistakable. The SAFE TECH Act simply allows victims an opportunity to hold platforms accountable when their deliberate inaction or product design decisions produce real-world harm, making the online world a more open and welcoming environment for all to participate.

What?!? Note that they don't say that the bill was developed with actual content moderation experts. To say that this wouldn't be used to stifle and chill speech from vulnerable groups and people is ludicrous. Of course it will. Everything about the bill is designed in a way that opens it up to abuse by the rich, powerful and privileged. Everything about the bill allows them to file costly lawsuits (or threaten to do so) and pressure websites to pull down all sorts of criticism.

That Warner and his co-sponsors deny this suggests that they have absolutely no understanding about how any of this works.

Q: Will exposing small tech companies and startups to liability and increased litigation costs drive them out of business and simply entrench the dominant player (e.g., Google, Facebook)?

A: This concern is gravely exaggerated. As an initial matter, smaller players do not have the reach of the Googles and Facebooks of the world and, as a result, are less likely to cause significant harm. Moreover, potential plaintiffs are unlikely to bring an action against a small tech company or startups out of fear being able to collect sufficient damages to make the effort and cost of litigation worthwhile. Indeed, in many cases plaintiffs’ attorneys would not even take these cases given the low likelihood of meaningful damages. In addition, a string of judicial decisions on standing requirements over the last 10 years, along with a range of tort reforms enacted by state legislatures (including anti-SLAPP laws to penalize frivolous or bad faith lawsuits), have significantly altered the legal landscape since Section 230 was enacted in 1996.

More importantly, things like protecting civil rights and preventing harassment should be built into internet platforms by design. Today’s online giants claim that their massive scale makes it too difficult to effectively moderate content – a social cost borne by users and vulnerable communities. Had these companies been exposed to potential liability from their inception, in many cases they would have designed their platforms

This is... again... completely disconnected from reality. There are so many stories of smaller platforms being sued for 3rd party speech. Hell, I was sued for third party speech and protected by 230. Under this bill, that case would have been a lot more expensive and almost certainly would have bankrupted us. Many of these lawsuits are not about "collecting sufficient damages" but about forcing the small tech company or startup to have to waste all their money on the lawsuit. How disconnected from reality are these Senators?

And, sure, it might not be as bad if there were strong anti-SLAPP laws in every state and a strong federal anti-SLAPP law, but we don't have that. In fact, many courts won't even apply state anti-SLAPP laws in federal court. At best, I'd say maybe 20% of cases that should be protected by anti-SLAPP laws have access to them. So to say "oh, no big deal, anti-SLAPP will cover it" is again nonsense.

That final paragraph is also completely disconnected from reality. This country has spent decades trying to solve for systemic racism and civil rights violations, and we're still failing. The government has failed in so many ways on this, and now Warner's saying "oh, tech companies can magically solve this if only they could be sued." This is fantasy land thinking.

Q: What is the scope of the carve-out for paid content? Does it cover anything beyond paid advertisements?

A: The SAFE TECH Act makes clear that Section 230 immunity does not apply to any paid content. This would include advertisements as well as things like marketplace listings.

Uh, no. From the language of the bill itself, it says:

"... except to the extent the provider or user has accepted payment to make the speech available..."

That certainly looks like it applies to all paid content. And, even worse, to things like web hosting. Or if Facebook or Twitter ever offered accounts where you pay to remove ads. Or, hell, to us on Techdirt, where some of our community have paid to support us, and we provide them extra features. Based on this, if any of our financial supporters (a key source of revenue for us) says anything that we get sued over, we can no longer claim 230 protections against it. That's ludicrous. Not only would we have to shut down our comments, we'd likely be unable to let people support us directly any more (meaning we'd likely shut down entirely).

Q: Will the SAFE TECH Act break the internet?

A: No! The internet was a far different place when Section 230 was passed. The scope, influence, and impact of modern internet platforms were unimaginable in 1996. Like all regulation, Section 230 must be updated to address the current state of affairs – including the unintended consequences of the law. The SAFE TECH Act brings Section 230 into the modern age by addressing those areas in which the law has been abused by platforms—such as civil rights, stalking, and harassment—in a targeted way. It is also important to remember, that even with the changes proposed in the SAFE TECH Act, Section 230 does not impose liability on anyone. There must still be a violation of some law and plaintiffs must still prove causation, harm, and damages. And the application of that law to an internet platform still cannot run afoul of the First Amendment.

To say this after misunderstanding (1) how content moderation works, (2) how civil liability works, and (3) the nature of vexatious lawsuits works... is just astounding. This bill would absolutely gut much of the internet. Smaller websites would likely have to shut down key services (and may have to shut down entirely). A massive wave of ambulance chasing, SLAPP suits would come next. Trolls and racists would flip the law on its head to sue companies. This would be an utter disaster.

And tragically, reporters are falling for Warner's framing. The Washington Post's article on this claims that the bill "preserves the thrust of Section 230." It absolutely does no such thing. It guts every bit of 230 to its core.

Filed Under: affirmative defense, amy klobuchar, antitrust, civil rights, mark warner, mazie hirono, preponderance of the evidence, section 230

Removing Civil Rights Law From Section 230 Will Create Many New Problems, While Failing To Fix Existing Ones

from the wrong-approach dept

We've covered so many bad faith bills that are attempting to undermine Section 230 for silly and disingenuous reasons. However, I expect we'll be seeing many more bills coming up that actually mean well, and have good intentions underlying the bill... but are still problematic and may make things worse. A new example of this is a not-yet-introduced bill from Rep. Yvette Clarke, along with Rep. Mike Doyle. They've released a "discussion draft" of the bill which they've dubbed the Civil Rights Modernization Act of 2021. This bill does two things that so many Section 230 reform bills do not: (1) it appears to attack an actual, clearly stated problem, and (2) it attempts to take a narrow approach to it.

Unfortunately, as currently written, the bill fails to deal with the actual problems, and is likely to create a wide variety of unintended consequences that do a lot more harm than good.

The idea behind the bill is simple: it's to add yet another exemption to Section 230, such that it would no longer apply to civil rights law in one specific situation: when dealing with targeted advertising. This bill comes almost directly in response to a report from ProPublica years ago showing that because of Facebook's ad targeting tools, landlords were able to exclude users by race. This is horrific and bad, and takes the world back to decades of horrific and regrettable US history where redlining was the norm, and communities were designed (with support of the government) to exclude people of color. Civil rights laws were supposed to help end that practice, and it's completely understandable to be horrified to see that Facebook may have been inadvertently bringing it back.

Of course, after that report came out, Facebook promised to update its policies and tools to deal with this, explicitly banning discriminatory practices within its ads and promising more enforcement against such ads. Of course, as we know, content moderation at scale is impossible, and a follow-up report by ProPublica a year later... found the problem still existed. Facebook blamed a "technical failure" on missing those ads, but... yeah... not a good look by Facebook.

Another year and a half after that, Facebook once again announced changes to its policies for dealing with discrimination in advertising, noting that it came after a bunch of civil rights organizations had sued the company over the discriminatory ads. This was part of a settlement of the lawsuit with those groups. Of course, just a week and a half later, Facebook got hit with another lawsuit, this time from the US government over these same discriminatory ads.

Meanwhile, last summer, the Markup found... the same type of discriminatory ads on Facebook. So, whatever Facebook is doing, it hasn't been able to solve this issue.

Given all of that, it might seem totally reasonable to argue that this bill makes sense. But, if you start to peel back the layers, that does not appear to be the case, and this bill might do a lot more harm than good. First off, let's go back to the core reason why Section 230 exists in the first place: to put liability in the right place. There is nothing, right now, that stops anyone from properly holding landlords who advertise in a discriminatory fashion liable. Indeed, if they're the ones doing the targeting in this manner, it seems only appropriate to correctly accuse them of violating Fair Housing laws. And, if you go after many of them for abusing targeting tools in this manner, that will hopefully get rid of much of the problem simply by convincing the ad buyers themselves to avoid such discriminatory and disgusting practices.

But it gets worse from there. As Public Knowledge pointed out in an article last year, holding a platform liable for some types of speech can lead to significant suppression of important and useful speech:

While an unpopular opinion among some, the fundamental ideas behind Section 230 around third party speech are still sound. Online platforms are not like publishers that can vet and stand behind every user post, and we want online platforms to have a free hand to moderate content without fear of liability for what they take down. A regime where platforms are responsible for third-party discriminatory conduct could very easily make platforms chill the speech of their users for fear of liability. We have evidence that this would likely be the case as seen in platform’s struggles to curb COVID-19 misinformation. Current content moderation AI is not as sophisticated as some of the platforms would like us to believe, especially when moderating the content of BIPOC people. Complicating this even further is that the roles of the platform and the user (employer, realtor, financial institution etc.) are not always clear. Did the user engage in the discriminatory action with the tools provided by the platform or did the platform present discriminatory tools to an unknowing user? A recent study showed that even when given neutral advertisements, Facebook showed different ads to different groups at different rates even when controlled for population, which highlights that even under the best intentions there may be a need to prioritize the platform’s liability as opposed to the third-party content of the advertiser or user.

And, let's be realistic about what's likely to happen if a bill like this became law. The threat of liability in a realm that, as noted in the paragraph above, is effectively impossible to deal with, would lead to a vast overreaction and clamping down of incredibly useful tools -- and could do more harm than good for the very people it seeks to help and support. For example, in the past few years (in part thanks to the power of the internet) a large number of new companies have sprung up that provide healthy & beauty supplies, with a target of serving people of color who are often not as well served by the market.

It's not difficult to see that, as a result of this law, Facebook and others completely block out the ability to effectively target audiences like this, even when it's totally appropriate and non-discriminatory. But the risk of liability may be too high for internet websites, and therefore, you end up back in the regrettable world where the default advertisement targets a white middle-class consumer (as it has for decades) because anything more accurately targeted... runs the risk of liability under such a law.

Another way to think of this, is that there are times when it is entirely non-nefarious to target members of a specific community with ads based on a particular characteristic. If you're selling Passover Hagadadahs, you tend to want to target a Jewish population. You might advertise in Jewish magazines or publications. That's not violating civil rights law, and it wouldn't if you ran those advertisements aimed at Jewish people online either. But, because of the very risk of liability, websites might ban all such targeted advertising entirely, leading again to end result where those niche communities are underserved, because the only ads you can place are targeted at the most mainstream, least common denominator audiences.

That seems like the opposite of what people who support civil rights should want.

And then there's a very serious question of whether or not Section 230 is even a problem here in the first place. As noted above, Facebook has already been sued multiple times by both civil rights organizations and the government over the ads. And while it's true it has tried to use 230 in response to the HUD lawsuit, we already have a somewhat similar case on the books, which is considered one of the key Section 230 cases. In Fair Housing Council of San Francisco v. Rommates.com, the 9th Circuit found that Roommates was not protected by Section 230 for discriminatory content that it created. In that case, also involving housing and race, Roommates created a pull down menu letting users select a preferred race of a roommate. And the court found that since that pulldown was created by the company and not a 3rd party, it was not immune from the lawsuit. (For what it's worth, an oft-forgotten coda to this story is that even though the court rejected Roommates' Section 230 defense, years later, it found that the company had not actually violated fair housing discrimination rules).

There's one other reason to be very wary of this civil rights carveout for Section 230: there's a very, very big chance that rather than being used to crack down on discrimination in housing, it would be abused by white nationalists to demand access to services that don't want them. If you look at the actual case law of where civil rights claims have been brought in an attempt to get around Section 230, you find a series of highly questionable cases -- including a Russian internet troll farm, a proudly misogynistic video blogger, a Twitter user who lost his account for tweeting hateful content directed at Daily Show host Trevor Noah, a guy who claims he lost his Twitter account for expressing his "heterosexuality and Christian affiliation," and a well known white supremacist -- all of whom claimed their civil rights were violated by being removed from social media.

Most of those claims were rejected on Section 230 grounds, but opening up the possibility of removing civil rights law from Section 230's protections may lead to a flood of similar lawsuits from truly awful people who are mad that they were removed from social media for hateful views, and claiming that such removals violate their civil rights.

Again, the bill almost certainly comes from a place of good intentions. And there are quite reasonable concerns about how Facebook's targeting in particular has been used to discriminate in housing, and possibly in other venues as well (such as jobs). But that's not a problem that we need 230 to fix. Instead, you'd think that a smarter approach would be to go after those doing the actual discrimination.

In summary, this bill is:

1. Not clearly needed / mistargeted
2. Likely to harm marginalized communities by limiting some of their own perfectly reasonable advertising abilities
3. Already dealt with in the Roommates case
4. Likely to be abused by terrible, terrible people, to claim their hateful views are being discriminated against.

Filed Under: civil rights, discrimination, intermediary liability, mike doyle, section 230, yvette clarke
Companies: facebook

Papers Please Has Something To Tell You About The 'No Fly' List And It's Going To Make You Sad

from the more-Douglas-Adams-than-George-Orwell-tbh dept

How does someone end up on the federal government's "no-fly" list? You'd think the shorter, less-convoluted question would be how one avoids ending up on this list. Unfortunately, the answer to either question is a convoluted mess -- one complicated unnecessarily by the number of federal agencies that think they should have a say in who lives and who flies.

Papers Please has attempted to explain the no-fly list and its parameters. And it has kind of failed, albeit through no fault of its own. The interconnectedness of government things -- the wheels of which were greased with countless pieces of post-9/11 legislation, memoranda of understanding, data-sharing agreements, and the insistence of numerous agencies that they, too, were important cogs in the War on Terror Machinery -- has made this almost impossible to parse.

Behold your tax dollars at work preventing you from flying:

If you can't see the embed, here's an annotated PDF version.

There were demands -- some made by the incoming President's people -- that participants in the Red Hat Insurrection should be added to the no-fly list. Bad idea. The no-fly list has been abused for years and it's not getting any better. Courts may be coming around to the fact that arbitrary federal-level decisions with almost zero recourse isn't what America's all about, but if change is coming, it will be slow, expensive, and stymied constantly by invocations of the "national security" mantra.

Here are some of the facts. The FBI has used the no-fly list as leverage to turn Muslims into informants so it can more easily score empty net goals against supposed "terrorists" too poor to buy terrorist supplies and too mentally incompetent to formulate an attack plan, much less draft their own statement of ISIS allegiance.

The feds' belated focus on domestic extremists doesn't excuse years of projecting a presumption of guilt on Muslims just because some extremists decided to fly planes into buildings. But the presumption of guilt continues -- encompassing pretty much any American who desires to board a plane.

Airlines aren't much without passengers. So it's in their best interest to sell as many tickets as possible and board as many people as possible. Their default assumption is everyone's good to fly unless proven otherwise. The government has taken an opposing stance, presuming everyone guilty of latent terrorism.

[F]ly/no-fly decision-making by airlines differs from that of the U.S. government in two major ways.

First, for an airline the default is generally “Yes”, whereas for the U.S. government, as discussed above, it has been “No” since at least 2008. If you have a ticket, you look more or less alive and human, your clothing covers your “naughty bits”, and you don’t break any rules (more on that below), the airline will generally let you on the plane. You don’t (usually) have to prove that you aren’t a terrorist.

This creates friction -- something exacerbated by the TSA, which operates under its own rules and has been granted considerable discretion to ground passengers and/or subject them to multiple levels of increasingly invasive screening.

If no flags fly, passengers can attempt to board a plane. But airlines are also given a lot of discretion about whom to serve -- something most private companies enjoy.

Second, airline procedures generally involve a greater degree of human discretion and judgement on how to interpret and apply the fly/no-fly criteria. Airlines would say that this allows flexibility (sometimes good) but it also allows arbitrariness (bad). For better or worse, whether you are allowed to fly can depend on a gate agent’s temper and mood.

International flights further complicate matters by adding new laws and agencies to the mix. Considering what's going on behind the scenes, it's a miracle airlines have been able to fill planes with passengers over the last decade.

As noted earlier, placement on a no-fly list is almost impossible to challenge. The government -- mainly the DHS -- has argued no-fly list status isn't something anyone's entitled to litigate. The placement occurs without court involvement. So, the DHS apparently feels the exclusion of court review during placement demands exclusion of court review after placement. Since there's very little court intercession, US agencies have continued to add people to no-fly lists for almost no reason at all.

Challenging no-fly status is incredibly expensive. A couple of court cases have managed to poke some holes in the government's arbitrary groundings. But it takes deep pockets to take a lawsuit far enough that high-level courts express their concerns about the constitutionality of no-fly lists.

Only one no-fly case has gone to trial, resulting in something of a Pyrric victory: After eight years of litigation, Dr. Rahinah Ibrahim found out that she was put on the no-fly list because the FBI agent who interviewed her as part of his mosque-watching assignment misunderstood how to fill out the blacklist and watchlist “nomination” form. Dr. Ibrahim’s name was taken off that list. But her U.S. visa was revoked (despite the fact that her children were born in the U.S. and are U.S. citizens), and she hasn’t been able to return to the U.S.

Dr. Ibrahim’s pro bono lawyers incurred almost $4 million in expenses to overcome what the 9th Circuit Court of Appeals described as “scorched earth” and “bad faith” litigation tactics by the government. It took the lawyers another seven years to get paid, (finally, last month, fifteen years after they started working on the case) after the government appealed the fee award all the way to the Supreme Court.

Other cases have bubbled up to this level, but have yet to secure courtroom victories. The expenses incurred in these long-running legal battles are likely on par with this effort -- one that took seven years (and more litigation) to get repaid.

All of this leads to the current situation, where irresponsible lawmakers are leveraging unprecedented actions and political animus to call for a federal level fucking of Americans who did stupid stuff and will -- in many cases -- end up facing federal charges.

We find it especially ironic that calls to deploy measures like extrajudicial no-fly orders are being made by politicians who profess to be those most committed to the rule of law. The current no-fly system, as should be apparent from the description above, is the antitheses of the rule of law, and epitomizes the lawlessness of the DHS in particular.

Does everyone convicted of a crime belong on the no-fly list? If so, for how long after their conviction? What about people suspected or accused of crimes? And why shouldn’t these decisions be made by judges?

Why should we focus on air travel, anyway? Surely those who came to Washington by air were less likely to have brought firearms or explosives than those who came by car.

The no-fly list should not be an all-purpose weapon to be deployed against anyone who's acted irresponsibly and/or criminally. The no-fly list probably shouldn't be used at all against anyone, but if it is going to remain active, it should only target known terrorists the government can definitively show would endanger the nation if they were allowed to fly. The list should be short and targeted. Instead, it's become a catchall for everyone the government is unsure of, as well as a receptacle for Muslims the government failed to turn into informants. Adding alleged domestic terrorists to the list is unwise, as most of those raiding the Capitol committed crimes of opportunity, rather than premeditated acts of terror.

Papers Please has made an admirable attempt to explain the no-fly list and how it operates. But much of its underlying legal rationale remains obscured, buried by national security invocations and unjustified claims that explaining the system would somehow allow people to avoid it. It's an unavoidable -- and mostly unchallengeable -- part of American life at this point. And it's never going to get better if opportunistic politicians continue to believe it's something necessary to secure the nation against all threats domestic and foreign.

Filed Under: civil liberties, civil rights, doj, fbi, no fly list

Dozens Of Human Rights Group Tell Congress: Do Not Gut Section 230 On Our Behalf; It'll Do More Harm Than Good

from the say-it-loud dept

As Congress (on both sides of the aisle) continues to explore new and dumber ways to wreck Section 230, often claiming that they need to do it to "protect" or "help" certain people or groups, over 70 civil rights, human rights, and social justice groups have sent a letter to Congress and the new administration, telling them that they are targeting the wrong thing, and that destroying the open internet will do a lot more harm than good.

Gutting Section 230 would make it more difficult for web platforms to combat the type of dangerous rhetoric that led to the attack on the Capitol. And certain carve outs to the law could threaten human rights and silence movements for social and racial justice that are needed now more than ever.

Section 230 is a foundational law for free expression and human rights when it comes to digital speech. It makes it possible for websites and online forums to host the opinions, photos, videos, memes, and creativity of ordinary people, rather than just content that is backed by corporations.

The danger posed by uncareful changes to Section 230 is not theoretical. The last major change to the law, the passage of SESTA/FOSTA in 2018, put lives in danger. The impacts of this law were immediate and destructive, limiting the accounts of sex workers and making it more difficult to find and help those who were being trafficked online. This was widely seen as a disaster that made vulnerable communities less safe and led to widespread removal of speech online. Senator Elizabeth Warren and Representative Ro Khanna have sponsored legislation to investigate the harm done by SESTA/FOSTA. Lawmakers should pass this bill and examine past mistakes before modifying Section 230, and should hold hearings on the human rights and civil liberties implications of altering the law before legislating further. Overly broad changes to Section 230 could disproportionately harm and silence marginalized people, whose voices have been historically ignored by mainstream press outlets. For example, social media platforms would be unlikely to host viral videos of police violence that have spurred nationwide uprisings for racial justice if they faced constant litigation from law enforcement for doing so.

The effort was put together by the always wonderful Fight for the Future, and has some amazing signatories, including Wikimedia, Access Now, Common Cause, Data for Black Lives, Global Voices, Hollaback!, Lucy Parsons Labs, Media Justice, National Black Justice Coalition, National Lawyers Guild, PEN America, Public Knowledge, and many others that work on civil rights for various marginalized groups. Since the changes to 230 that are often proposed are put forth with misleading claims about how they're meant to "protect" these groups, it's great to see them speaking out and effectively saying "not in my name."

Filed Under: civil rights, human rights, section 230, social justice

First Circuit Appeals Court Reaffirms Its 2011 Decision: The First Amendment Protects The Recording Of Cops

from the double-tapping-Glik dept

More than a decade ago, Simon Glik was arrested by Boston police officers for the "crime" of recording them in public. This was made possible by a law passed in the mid-60s, which turned Massachusetts into a "two-party" recording state. Unless the person doing the recording has the consent of the person being recorded, it's a violation of the state's wiretap law.

Glik successfully challenged this law, securing an Appeals Court ruling that stated the law was unconstitutional as applied to the recording of police officers in public places. This didn't immediately end the bogus arrests. Five years later, the government was taken to court again for enforcing this law in a way the Appeals Court said it couldn't. Also along for the ride was James O'Keefe's "Project Veritas," which argued the law was unconstitutional when applied to any public official in nearly any setting.

The federal court said the Glik decision applied to the recording of police officers, whether surreptitious or not. It pointed out the Boston Police Department had issued new guidance based on the Glik decision, but falsely portrayed acceptable recordings as limited to those cops knew were happening. Not so, said the court. Even surreptitious recordings of cops in public spaces are protected by the First Amendment. It didn't come to the same conclusion about Project Veritas' arguments, finding the law was not overbroad when it applied some minimal restrictions to recording public officials.

The Commonwealth still wants to abuse its bad law. It appealed this decision, sending it to the same court that had found its application of the law to the recording of cops unconstitutional nearly a decade ago. The First Circuit Court of Appeals says [PDF] the government's arguments are no better nine years later. Surreptitious recordings of police officers performing their public duties does not interfere with their work. Citizens are under no obligation to tell police officers they're being recorded. The government's interpretation of the law would just provide cover for misconduct.

Because the recording here will not be done in plain sight or with the actual knowledge of the officers whose words will be recorded, they will not even be aware that such recording is occurring. For that reason, they will not be on specific notice of a need to take precautions to ensure that words that they do not wish to have recorded are not. But, insofar as the mere prospect of being recorded leads officers to feel the need to refrain from uttering words or engaging in actions that would constitute misconduct, it hardly interferes with their capacity to perform their official duties.

Citizens deserve transparency and accountability. And if law enforcement agencies aren't willing to provide that on their own, citizens have the Constitutional right to gather information about police activities.

Accordingly, we conclude that the statute's outright ban on such secret recording is not narrowly tailored to further the government's important interest in preventing interference with police doing their jobs and thereby protecting the public. [...]

Rather, despite a record that does little to show how secret, nonconsensual audio recording of police officers doing their jobs in public interferes with their mission, Section 99 broadly prohibits such recording, notwithstanding the myriad circumstances in which it may play a critical role in informing the public about how the police are conducting themselves, whether by documenting their heroism, dispelling claims of their misconduct, or facilitating the public's ability to hold them to account for their wrongdoing.

The Commonwealth also raised the argument that people interacting with police might be recorded without their consent. Again, the court points out there's minimal expectation of privacy in conversations with cops in public areas. While some citizens may not want to be recorded, talking to officers in the earshot of other members of the public is hardly a private conversation. And the precedent cited by the DA is completely off base.

In pressing this point, the District Attorney contends that special attention must be paid to the fact that "when a recording is made surreptitiously, the person being recorded unwittingly becomes a captive." She supports this argument by invoking the Supreme Court's captive-audience cases.

[...]

But, the captive-audience line of authority concerns restrictions on expression that the government may impose to protect persons from being subjected to speech they wish to avoid. The risk of being subjected to unwanted speech, of course, is not a concern here. Moreover, the only individuals who will be recorded by the Martin Plaintiffs are those in public spaces who are within earshot of police officers and choose to speak. Thus, we do not see how -- across the board -- the proposed secret recording results in "substantial privacy interests . . . being invaded in an essentially intolerable manner."

Project Veritas' case, however, fails to move the court. Veritas wanted the law invalidated in its entirety, claiming it deterred it from recording public officials and those interacting with public officials without limitation. But the examples it provided of speech is was being "deterred" from engaging in was far more limited than the relief it sought.

Project Veritas alleged in connection with this challenge that it seeks to record "government officials who are discharging their duties at or around the State House in Boston and other public spaces" in hopes of learning those officials' unvarnished thoughts about "immigration policy and deportation"; "to capture whether antifa public events and protests are peaceful, whether police or other public officials’ interactions with antifa members are non-violent," and to otherwise report on those events; and that its "journalists would have attended" "a large public event" related to "the ongoing PVA 'antifa' investigation" but for Section 99.

Thus, Project Veritas gives no indication that it intends to investigate any and every type of civil servant, no matter their function or place in the governmental hierarchy. But, if we take Project Veritas at its word and construe the term "government officials" as broadly as "officials and civil servants," that category covers everyone from an elected official to a public school teacher to a city park maintenance worker.

The court says it's not willing to completely upend the law when narrower reading might both serve the First Amendment and the state's governmental interests. This plaintiff asks the court to consider all recordings equal. The court says that's not realistic.

The concern that this disconnect renders this dispute hypothetical and abstract rather than real and concrete is compounded by the fact that the First Amendment analysis might be appreciably affected by the type of government official who would be recorded. It is hardly clear that a restriction on the recording of a mayor's speech in a public park gives rise to the same First Amendment concerns as a restriction on the recording of a grammar school teacher interacting with her students in that same locale while on a field trip or public works employees conversing while tending to a city park's grounds.

Veritas' case will go back to the court for some additional exploration -- but only if, given a third chance to write a complaint, the activist group actually finds something worthy of discussion by the court. But the ruling here is clear: recording cops in Massachusetts isn't a crime, no matter how much Massachusetts wishes it would be.

Filed Under: 1st amendment, 1st circuit, civil rights, free speech, massachusetts, recording police, simon glik

Huawei Is Crafting Facial Recognition Tech That Will Make It Easier For The Chinese Government To Target Citizens It Doesn't Like

from the be-as-evil-as-possible dept

The Chinese government's war against its own citizens continues. The repression and persecution of China's Uighur population has been well-documented. The Chinese government is fighting a surveillance war on multiple fronts, beginning with its own citizens, who must maintain a positive "citizen score" to live life without too much government harassment. Its attempt to hold Hong Kong to the same oppressive standard has been met with significant resistance. But, in the end, China will consummate its takeover of Hong Kong with a removal of its independence.

Uighur Muslims have been the focus of the government's unmitigated wrath for years. China wants these residents either locked up or living in another country entirely. And it's pressuring tech companies to assist in their oppression. Far too many have complied. Documents seen by the Washington Post show Huawei has decided to be the Chinese government's posse, helping the government locate and target Uighur residents.

The Chinese tech giant Huawei has tested facial recognition software that could send automated “Uighur alarms” to government authorities when its camera systems identify members of the oppressed minority group, according to an internal document that provides further details about China’s artificial-intelligence surveillance regime.

The tech Huawei is developing attempts to determine a person's age, sex, and ethnicity using only facial shots. Given that this tech hasn't proven itself able to reliably recognize faces, it seems unlikely it will perform these extra tasks with better accuracy. False positives are guaranteed. And a false Uighur positive in China means citizens will be detained and subjected to a lifetime of brutal punishment just because they happened to trigger a Huawei "alarm."

According to Huawei, this proposed system has not gone live.

Both companies have acknowledged the document is real. Shortly after this story published Tuesday morning, Huawei spokesman Glenn Schloss said the report “is simply a test and it has not seen real-world application. Huawei only supplies general-purpose products for this kind of testing. We do not provide custom algorithms or applications.”

Maybe this is true. But it's also the sort of statement a company would release when being pressured by a government to avoid revealing ongoing surveillance programs.

Even if the system isn't live at the moment, that doesn't change the fact that it will be live at some point in the future. And the Chinese government will have a tool it can use to target a small percentage of its population -- a tool whose ability to recognize faces alone is already questionable. Adding in other factors only increases the possibility of false positives.

Then there's the mission creep. If it "works" for China, other countries looking to target people for their sex, race, or age will have a tool that's been field-tested and ready for deployment. China's not the only authoritarian regime looking for exciting new ways to persecute certain citizens. Following through with development of this tech means Huawei will be the go-to source for countries looking to add to their human rights violation rap sheets.

Filed Under: china, civil liberties, civil rights, facial recongition, surveillance, uighurs
Companies: huawei

Federal Judge Calls Out Qualified Immunity's Contribution To Racist Policing

from the unfortunately-the-racist-cop-still-wins dept

If you only read one qualified immunity decision this year, make it this one. (At least until something better comes along. But this one will be hard to top.) [h/t MagentaRocks]

The decision [PDF] -- written by Judge Carlton W. Reeves for the Southern District of Mississippi -- deals with the abuse of a Black man by a white cop. Fortunately, the man lived to sue. Unfortunately, Supreme Court precedent means the officer will not be punished. But the opening of the opinion is unforgettable. It's a long recounting of the injustices perpetrated on Black people by white law enforcement officers.

Clarence Jamison wasn’t jaywalking.

He wasn’t outside playing with a toy gun.

He didn’t look like a “suspicious person.”

He wasn’t suspected of “selling loose, untaxed cigarettes.”

He wasn’t suspected of passing a counterfeit $20 bill.

He didn’t look like anyone suspected of a crime.

He wasn’t mentally ill and in need of help.

He wasn’t assisting an autistic patient who had wandered away from a group home.

He wasn’t walking home from an after-school job.

He wasn’t walking back from a restaurant.

He wasn’t hanging out on a college campus.

He wasn’t standing outside of his apartment.

He wasn’t inside his apartment eating ice cream.

He wasn’t sleeping in his bed.

He wasn’t sleeping in his car.

He didn’t make an “improper lane change.”

He didn’t have a broken tail light.

He wasn’t driving over the speed limit.

He wasn’t driving under the speed limit.

Every one of these is linked to a footnote that points to a news article or (in one case) a DOJ investigation dealing with white officers perpetrating violence and other rights violations against Black citizens. (The decision does not provide links to everything listed here. Although there are footnotes appended, only a couple contain actual URLs. I have linked to relevant stories where possible to provide context.)

The decision continues:

No, Clarence Jamison was a Black man driving a Mercedes convertible.

As he made his way home to South Carolina from a vacation in Arizona, Jamison was pulled over and subjected to one hundred and ten minutes of an armed police officer badgering him, pressuring him, lying to him, and then searching his car top-to-bottom for drugs.

Nothing was found. Jamison isn’t a drug courier. He’s a welder.

Unsatisfied, the officer then brought out a canine to sniff the car. The dog found nothing. So nearly two hours after it started, the officer left Jamison by the side of the road to put his car back together.

The officer claimed he had a right to perform the traffic stop. According to Officer Nick McClendon of the Richland Police Department, the temporary tag on the vehicle had "folded over," making it impossible to read. Officer McClendon testified that this sort of thing happens when temp tags aren't secured properly and the vehicle is traveling at highway speeds.

That's what McClendon swore to. This is what he said when he was confronted with actual facts:

When Officer McClendon was shown the cardboard tag during his deposition, it showed no signs of being creased. The officer claimed that it either could have folded without creasing or that someone had ironed out the crease.

Yeah, I'm sure Clarence Jamison -- frightened by a two-hour shakedown by a white cop -- did exactly that: went straight home and ironed his dealer plate.

Here's what Jamison testified he did after this two-hour roadside ordeal:

When I first got home, I couldn’t sleep. So I was up for like – I didn’t even sleep when I got home. I think I got some rest the next day because I was still mad just thinking about it and then when all this killing and stuff come on TV, that’s like a flashback. I said, man, this could have went this way. It had me thinking all kind of stuff because it was not even called for. . . .

Then I seen a story about the guy in South Carolina, in Charleston, a busted taillight. They stopped him for that and shot him in the back,33 and all that just went through my mind . . . .

I don’t even watch the news no more. I stopped watching the news because every time you turn it on something’s bad.

The court surmises Jamison is referring to the shooting of Walter Scott by South Carolina police officer Walter Slager. Scott was shot in the back by Slager as he ran away from the officer. Footage captured by a passerby's cellphone appeared to show Officer Slager planting his Taser on the ground near where Scott fell. When the shots were fired, Scott was nearly 20 feet away from Slager. Nevertheless, Officer Slager radioed for help, claiming Scott had tried to grab his Taser.

Moving on from this point, Judge Reeves does something very few courts have: he runs down the history of Section 1983 lawsuits and their ties to both the 14th Amendment and the history of racism perpetrated by law enforcement.

Jamison brings his claims under 42 U.S.C. § 1983, a statute that has its origins in the Civil War and “Reconstruction,” the brief era that followed the bloodshed. If the Civil War was the only war in our nation’s history dedicated to the proposition that Black lives matter, Reconstruction was dedicated to the proposition that Black futures matter, too.

Following this came the 14th Amendment. These were all positive developments, but whites in the South didn't think so. This includes Mississippi, where this case originates. Whites resented the rights given to Blacks, even though they were the same rights enjoyed by white people. Racism ensued.

In Mississippi, it became a criminal offense for blacks to hunt or fish,” and a U.S. Army General reported that “white militias, with telltale names such as the Jeff Davis Guards, were springing up across” the state.

[...]

The terrorism in Mississippi was unparalleled. During the first three months of 1870, 63 Black Mississippians “were murdered . . . and nobody served a day for these crimes.” In 1872, the U.S. Attorney for Mississippi wrote that Klan violence was ubiquitous and that “only the presence of the army kept the Klan from overrunning north Mississippi completely."

Section 1983 -- which allows citizens to sue government employees for rights violations -- is derived from the Ku Klux Klan Act. Congress realized local law enforcement agencies were acting like unofficial wings of the KKK, frequently engaging in violence against Black people. Unfortunately, this proved to be little more than a speed bump as far as systemic racism went.

“By 1873, many white Southerners were calling for ‘Redemption’ – the return of white supremacy and the removal of rights for blacks – instead of Reconstruction.” The federal system largely abandoned the emancipationist efforts of the Reconstruction Era. And the violence returned. “In 1874, 29 African-Americans were massacred in Vicksburg, according to Congressional investigators. The next year, amidst rumors of an African-American plot to storm the town, the Mayor of Clinton, Mississippi gathered a white paramilitary unit which hunted and killed an estimated 30 to 50 African-Americans.” And in 1876, U.S. Marshal James Pierce said, “Almost the entire white population of Mississippi is one vast mob.”

It took nearly 100 years for federal courts to reverse the bigotry of the Southern emancipation backlash.

It was against this backdrop that the Supreme Court attempted to resuscitate Section 1983. In 1961, the Court decided Monroe v. Pape, a case where “13 Chicago police officers broke into [a Black family’s] home in the early morning, routed them from bed, made them stand naked in the living room, and ransacked every room, emptying drawers and ripping mattress covers.” The Justices held that Section 1983 provides a remedy for people deprived of their constitutional rights by state officials. Accordingly, the Court found that the Monroe family could pursue their lawsuit against the officers.

Clarence Jamison, a Black man traveling through Mississippi -- probably noticed things hadn't improved much over the last 50 years. Here's a brief glimpse of his treatment by Officer McClendon:

According to Officer McClendon, he walked back to the passenger side of Jamison’s car before hearing from NCIC. He later admitted in his deposition that his goal when he returned to Jamison’s car was to obtain consent to search the car. Once he reached the passenger side window, Officer McClendon returned Jamison’s documents and struck up a conversation without mentioning that the EPIC background check came back clear. Thinking he was free to go after receiving his documents, Jamison says he prepared to leave.

[...]

According to Jamison, however, as he prepared to leave, Officer McClendon put his hand over the passenger door threshold of Jamison’s car and told him to, “Hold on a minute.” Officer McClendon then asked Jamison – for the first time – if he could search Jamison’s car. “For what?” Jamison replied. Officer McClendon changed the conversation, asking him what he did for a living. They discussed Jamison’s work as a welder.

Officer McClendon asked Jamison – for the second time – if he could search the car. Jamison again asked, “For what?” Officer McClendon said he had received a phone call reporting that there were 10 kilos of cocaine in Jamison’s car. That was a lie. Jamison did not consent to the search.

Officer McClendon then made a third request to search the car. Jamison responded, “there is nothing in my car.” They started talking about officers “planting stuff” in people’s cars. At this point, Officer McClendon “scrunched down,” placed his hand into the car, and patted the inside of the passenger door. As he did this, Officer McClendon made his fourth request saying, “Come on, man. Let me search your car.” Officer McClendon moved his arm further into the car at this point, while patting it with his hand.

As if four asks were not enough, Officer McClendon then made his fifth and final request. He lied again, “I need to search your car . . . because I got the phone call [about] 10 kilos of cocaine.”

Jamison -- tiring of McClendon and perhaps feeling this would speed things up -- agreed to a search. A very invasive and thorough search was conducted but nothing was found.

Officer McClendon later testified that he searched Jamison’s car “from the engine compartment to the trunk to the undercarriage to underneath the engine to the back seats to anywhere to account for all the voids inside the vehicle.”

[...]

Officer McClendon admitted in his deposition that he did not find “anything suspicious whatsoever.”

When the search fails, maybe it's time to call in the Yes Man, which is actually a dog that can give cops permission to engage in searches.

However, he asked Jamison if he could “deploy [his] canine.” Jamison says he initially refused. Officer McClendon asked again, though, and Jamison relented, saying “Yes, go ahead.” Officer McClendon “deployed [his] dog around the vehicle.” The dog gave no indication, “so it confirmed that there was nothing inside the vehicle.”

It may not have ended in death or injury. But it was an injustice all the same. The suspicionless search lasted almost two hours. That's two hours Clarence Jamison will never have back. And it's two hours he could have used at that point, as the court notes:

This explains why [Jamison] was tired. Here he was, standing on the side of a busy interstate at night for almost two hours against his will so Officer McClendon could satisfy his goal of searching Jamison’s vehicle. In that amount of time, Dorothy and Toto could have made it up and down the yellow brick road and back to Kansas. See Lee Pfeiffer, The Wizard of Oz, ENCYCLOPEDIA BRITANNICA (Mar. 19, 2010) (noting the 101-minute run time of the 1939 film). If Jamison was driving at 70 MPH before being stopped, in the 110 minutes he was held on the side of the road he would have gotten another 128 miles closer to home, through Rankin, Scott, Newton, and Lauderdale counties and more than 40 miles into Alabama.

But at the end of all of this, there's nothing for Clarence Jamison, who was subjected to what appears to be a racially motivated fishing expedition by a white cop. Why? Because the Supreme Court has made it almost impossible to hold cops accountable for their rights violations, especially when a cop is clever enough to violate rights in a way the court hasn't addressed before.

Given the lack of precedent that places the Constitutional question “beyond debate,” Jamison’s claim cannot proceed. Officer McClendon is entitled to qualified immunity as to Jamison’s prolonged detention and unlawful search claims.

This isn't acceptable, the judge points out. The Supreme Court has ordained abuse of rights by narrowing its self-crafted qualified immunity doctrine to such a sharp point it's almost impossible for plaintiffs to overcome. This is complete bullshit says Judge Reeves, even as he recognizes he cannot rule any other way. Here's a list of rights violations deemed to be acceptable by courts, due to a lack of on-point precedent.

A review of our qualified immunity precedent makes clear that the Court has dispensed with any pretense of balancing competing values. Our courts have shielded a police officer who shot a child while the officer was attempting to shoot the family dog; prison guards who forced a prisoner to sleep in cells “covered in feces” for days; police officers who stole over $225,000 worth of property; a deputy who bodyslammed a woman after she simply “ignored [the deputy’s] command and walked away”; an officer who seriously burned a woman after detonating a “flashbang” device in the bedroom where she was sleeping; an officer who deployed a dog against a suspect who “claim[ed] that he surrendered by raising his hands in the air”; and an officer who shot an unarmed woman eight times after she threw a knife and glass at a police dog that was attacking her brother.

The courts are supposed to protect citizens' rights. The Supreme Court has made it impossible for courts to do that.

If Section 1983 was created to make the courts “guardians of the people’s federal rights,’” what kind of guardians have the courts become? One only has to look at the evolution of the doctrine to answer that question.

Once, qualified immunity protected officers who acted in good faith. The doctrine now protects all officers, no matter how egregious their conduct, if the law they broke was not “clearly established.”

Nearly 60 years later, politicians, who are unable to continue ignoring police violence against citizens, are looking to strip this protection away from officers. But they're fighting an uphill battle against entrenched unions, powerful law enforcement allies in legislatures, and the Supreme Court itself. And the nation's top court seems unwilling to correct its unforced error. Qualified immunity has given cops permission slips to engage in rights violations and severe misconduct. Crime, for the most part, continues to remain at historic lows. Despite this, police officers are still killing people at the rate of ~1,000/year with no sign of slowing down. That's on top of rights violations that never seem to decline, no matter how much criminal activity does. Qualified immunity encourages abuse and that encouragement -- the Supreme Court's implicit blessing -- is still felt most by Black citizens who have been the target of police violence and abuse for well over 200 years.

Filed Under: carlton reeves, civil rights, police brutality, qualified immunity, racist policing