Supreme Court Says iPhone Users Can Pursue Antitrust Claims Against Apple Over App Store

from the could-get-intereseting dept

Earlier today, the Supreme Court ruled (mostly as expected, though with some caveats) in Apple v. Pepper, a case concerning whether or not iPhone users could sue Apple for antitrust concerning how it controls pricing in the iOS App Store. Most of the news on this focuses either on how this could have a big impact on Apple and other marketplaces, or on how this case (somewhat oddly) split between the two Justices appointed by President Trump, with Justice Kavanaugh writing the majority opinion (joined by Justices Ginsburg, Breyer, Kagan, and Sotomayor) and the dissent written by Justice Gorsuch (joined by Justices Roberts, Thomas and Alito).

It will be interesting to see how this plays out, but my first impression is that this case may not prove to be that big of a deal long term. It is not saying anything, really, concerning whether or not Apple's practices are an antitrust violation. It is merely letting a case go forward. And, to some extent, I think that Justice Gorsuch may be correct that all that this case will end up doing in the long run is getting Apple and other platforms to change their contracts in terms of how the money flow officially goes.

The key in this case is that Apple sought to have the antitrust case tossed, saying that iPhone owners were not the "direct purchasers" from Apple, and thus had no standing to sue. An earlier case, Illinois Brick v. Illinois, said that only direct purchasers could sue for antitrust violations, rather than those further down the supply chain. Here, the majority said that Illinois Brick doesn't exclude iPhone users, because they did, in fact, make the purchase from Apple, and thus were "direct purchasers."

The plaintiffs purchased apps directly from Apple and therefore are direct purchasers under Illinois Brick. At this early pleadings stage of the litigation, we do not assess the merits of the plaintiffs’ antitrust claims against Apple, nor do we consider any other defenses Apple might have. We merely hold that the Illinois Brick direct-purchaser rule does not bar these plaintiffs from suing Apple under the antitrust laws.

This does seem fairly straightforward, but Apple's counter-argument was that, as the market controller, it is merely setting the percentage fee that goes back to Apple, and not the actual price of the app:

Apple’s theory is that Illinois Brick allows consumers to sue only the party who sets the retail price, whether or not that party sells the good or service directly to the complaining party. Apple says that its theory accords with the economics of the transaction. Here, Apple argues that the app developers, not Apple, set the retail price charged to consumers, which according to Apple means that the consumers may not sue Apple.

The majority rejects this ruling, saying that it is not actually supported by the law (which says that injured parties can sue), that Apple is stretching the meaning of the Illinois Brick ruling from one about "direct purchasers" to one about "who sets the price," and finally that under Apple's interpretation of the rule, any market operator could strategically structure their market to avoid being liable to any antitrust effort:

...if accepted, Apple’s theory would provide a roadmap for monopolistic retailers to structure transactions with manufacturers or suppliers so as to evade antitrust claims by consumers and thereby thwart effective antitrust enforcement.

The dissent, by Gorsuch, more or less suggests that this ruling, as opposed to the reverse, is actually what will allow market operators to avoid antitrust, just by strategically structuring deals in a different way:

To evade the Court’s test, all Apple must do is amend its contracts. Instead of collecting payments for apps sold in the App Store and remitting the balance (less its commission) to developers, Apple can simply specify that consumers’ payments will flow the other way: directly to the developers, who will then remit commissions to Apple. No antitrust reason exists to treat these contractual arrangements differently, and doing so will only induce firms to abandon their preferred—and presumably more efficient—distribution arrangements in favor of less efficient ones, all so they might avoid an arbitrary legal rule.

This is why, frankly, I'm not convinced this case is that big of a deal, despite some general concerns that people have raised about the ruling. As a gut reaction, it does seem to make sense that those injured by supposedly monopolistic behavior should have the right to sue over that harm, but this ruling seems more technical than anything else, and is fairly early on in the process of what appears to be a very long case that has no end in sight. Apple, and other large companies, would obviously have liked to have seen it go the other way, and to face less of a threat of antitrust lawsuits from the users of the markets they set up, but that, alone, isn't a sensible reason for blocking these cases.

For what it's worth, if I were Apple, I would preempt this issue entirely by no longer requiring that the App Store be the only way to get apps on the phone. Google allows competing marketplaces on Android, but they really don't get much usage -- in part because Google (correctly) notes that you're likely to have better security by going through the official Google Play store, rather than alternatives. However, it has still allowed alternatives, and a few of them (including Amazon's) have been able to build up a niche in the market.

Filed Under: antitrust, app store, brett kavanaugh, direct purchaser, ios, neil gorsuch, standing, supreme court
Companies: apple

Twenty-one States Inadvertently Tell The DC Circuit That The Plaintiffs Challenging FOSTA Have A Case

from the with-amici-like-these dept

The constitutional challenge to FOSTA chugs on. A few weeks ago the DOJ filed its opposition brief to defend FOSTA, and then last week several amicus briefs were filed intending to support the government's side. But in reading the one filed by twenty-one state attorneys general, it seems that's not what it did.

The important thing to remember about this appeal is that the question before the appeals court isn't really about the constitutionality of FOSTA itself. What's being appealed is the case having been dismissed for lack of standing by the plaintiffs. The district court never directly ruled on the constitutionality of the law; it only ruled that these plaintiffs had no right to complain about it to the courts. According to the district court these plaintiffs weren't being hurt, or likely to be hurt, by FOSTA, and so it dismissed their case. What the parties are fighting about now is whether this assessment by the district court was right.

For the plaintiffs it makes sense to keep pressing the constitutional issue because shining a light on the unconstitutionality of the law illuminates the injury the unconstitutionality has already caused and will continue to cause. But the defense has a different and much simpler job. All the DOJ has to do to defend FOSTA is say is, "The district court was right. These people were not hurt by FOSTA and will not be hurt by FOSTA, so keep this case dismissed." If the appeals court agrees that there has been no injury, and that there is unlikely to be any injury, then the case remains dismissed and this constitutional challenge goes away.

And so that's what the DOJ's brief basically does: parrot the district court's decision that there is nothing to see here. The DOJ spent its pages arguing that there has been no injury, nor is there the likelihood of any injury, because FOSTA could not possibly empower prosecutors to reach the plaintiffs.

As the district court correctly concluded, plaintiffs’ conduct is not “proscribed by [the] statute,” and plaintiffs face no “credible threat of prosecution thereunder.” [DOJ brief p. 10]

It's an unfortunate position for the government to take, but it's not an irrational litigation strategy. The only thing the DOJ needs to do here is assure the court that the plaintiffs have nothing to worry about.

But that's exactly what the amicus brief by the twenty-one state attorney generals does not do. Although it is intended to support the DOJ's defense of the statute, rather than supporting the DOJ's argument that the plaintiffs' complaints are much ado about nothing, their brief instead reads as a bright flashing neon sign warning the court that there is plenty of reason for them to be worried. Because, in contrast to the DOJ's arguments about what FOSTA does not do, this brief reads as a paean to everything FOSTA is going to let the states do, including to people just like the plaintiffs.

First, it reminds the court just how much FOSTA empowers states like them.

FOSTA makes explicit that: (1) federal law no longer can be said to provide legal protection for websites that unlawfully facilitate sex trafficking; and (2) States may now pursue state-law prosecutions based on conduct that would also violate FOSTA. 47 U.S.C. § 230(e)(5). [I]f a State criminalizes the same conduct FOSTA criminalizes, the State need not wait for the Department of Justice to prosecute traffickers operating in the State; the State’s prosecutors may do so themselves. FOSTA also authorizes a state attorney general, on behalf of the residents of his or her State, to initiate civil actions against those who violate 18 U.S.C. § 1591 (“Sex trafficking of children or by force, fraud, or coercion”) if there is “reason to believe” that an interest of the State’s residents has been or is threatened or adversely affected by the violators. [state AG brief p. 9-10]

It also tells the court just how keen they are to be so empowered. Although the brief is only 10 pages, more than five of them are devoted to a gushing inventory of all these states' policy agendas against sex trafficking. [state AG brief p. 3-9]

It further implies that the only reason there have not been more prosecutions predicated on FOSTA to date is because the states first need to pass some laws to enable these prosecutions, and that takes some time.

Bills to accomplish this are currently pending before the Texas Legislature. Tex. H.B. 15, 86th Leg., R.S. (2019) and Tex. S.B. 20, 86th Leg., R.S. (2019). [state AG brief fn. 3]

In other words, this brief undermines all the arguments that the unconstitutional effects of FOSTA are hypothetical by instead essentially pointing out to the court that they just haven't accrued yet. FOSTA empowers states to act, they are keen to act, and they just need a little more time until they will be able to act.

Which perhaps wouldn't be so much of a problem if states were carefully focused on actual instances of sex trafficking. But the amici themselves are proof that such restraint is unlikely.

In particular, note that one of the states on the brief is Florida. Now think back to just a few months ago when Florida prosecutors stole attention away from the Super Bowl with their announcement that they had broken up a "sex trafficking" operation in Palm Beach… which then turned out not to be a sex-trafficking operation after all.

It was sex work prosecutors had discovered, sure, but at least three of the plaintiffs challenging FOSTA are advocates for sex workers, in no small part because they believe that advocating for sex workers helps keep them safe and out of the clutches of sex traffickers. They sued because they are worried about how the vague language of FOSTA can be used against their advocacy.

A big part of the DOJ's argument is that no one could possibly misconstrue their speech on sex work with the speech relating to sex trafficking and end up using FOSTA to target them.

[Plaintiffs'] activity is wholly outside of FOSTA’s ambit. It is not proscribed by § 2421A, which prohibits owning, managing, or operating an interactive computer service with the intent to promote or facilitate specific instances of illegal prostitution. Nor is it prohibited by § 1591, the pre-existing federal criminal prohibition on sex trafficking. And because FOSTA amended Section 230 immunity only to permit civil claims under § 1595 “if the conduct underlying the claim constitutes a violation of section 1591,” and State criminal prosecutions “if the conduct underlying the charge would constitute a violation of section 1591” or § 2421A, see 47 U.S.C. § 230(e)(5), plaintiffs do not face a reasonable fear of prosecution as a result of those amendments, either. [DOJ brief p. 15-16]

Yet here before the court is an amicus who not long ago got sex work and sex trafficking very badly mixed up. And here it is announcing to the court how excited it is that FOSTA has given them the power to get them mixed up in a way that will affect even more people, including those situated exactly like the plaintiffs.

The DOJ wants the court to believe that any injury the plaintiffs complain about is entirely speculative.

To the extent plaintiffs are concerned that a State or private litigant might attempt to bring a lawsuit against them in the future notwithstanding the text of FOSTA, that concern cannot provide plaintiffs with standing to sue the federal government here. […T]hat fear is entirely conjectural, and “require[s] guesswork as to how independent decisionmakers will exercise their judgment.” [DOJ brief p. 29-30]

But thanks to amici, we know exactly how these independent decision makers will exercise their judgment: badly. Thus, despite the DOJ's best efforts to convince the court of the plaintiffs' lack of standing, the state AG's amicus brief has done the exact opposite.

In a way the amicus brief is just like FOSTA itself: not understanding the job that needed to be done but rushing in with legal guns blazing anyway. And just like FOSTA, this ill-tailored legal response has caused all sorts of collateral damage that just makes the problem to be solved worse.

Filed Under: cda 230, fosta, section 230, standing, state attorneys general

Wherein The Copia Institute, Engine, And Reddit Tell The DC Circuit That FOSTA Is Unconstitutional

from the chilling-speech-is-not-cool dept

Ever since SESTA was a gleam in the Senate’s eye, we’ve been warning about the harmful effects it stood to have on online speech. The law that was finally birthed, FOSTA, has lived up to its terrifying billing. So, last year, EFF and its partners brought a lawsuit on behalf of several plaintiffs – online speakers, platforms, or both – to challenge its constitutionality. Unfortunately, and strangely, the district court dismissed the Woodhull Freedom Foundation et al v. U.S. case for lack of standing. It reached this decision despite the chilling effects that had already been observed and thanks to a very narrow read of the law that found precision and clarity in FOSTA's language where in reality there is none. The plaintiffs then appealed, and last week I filed an amicus brief on behalf of the Copia Institute, Engine, and Reddit in support of the appeal.

The overarching point we made is that speech is chilled by fear. And FOSTA replaced the statutory protection platforms relied on to be able to confidently intermediate speech with the fear of it. Moreover, it didn't just cause platforms to have only a little bit of fear of only a little bit of legal risk: thanks to the vague and overbroad terms of the statutory language, it stoked fear of nearly unlimited scope. And not just a fear of civil liability but now also criminal liability and liability subject to the disparate statutory interpretations of every state authority.

We have often praised the statutory wisdom of Section 230 before it was modified by FOSTA. By going with an approach that was “all carrot, no stick,” Congress was able to conscript platforms into meeting the basic objectives it listed in the opening sections of the statute: get the most good content online, and the least bad. But FOSTA replaced these carrots with sticks, and left platforms, instead of incented to allow the most good speech and restrict the most bad, now afraid to do either.

As a result of this fear, platforms have become vastly less accommodating towards the speech they allow on their systems, which has led to the removal (if not outright prohibition) of plenty of good (and perfectly lawful) speech. They have also been deterred from fully policing their forums, which has led to more of the worst speech persisting online. Notably, nothing in FOSTA actually modified the stated objectives of Section 230 to get the most good and least bad expression online, yet what it did modify nevertheless made achieving either goal impossible.

And in a way that the Constitution does not allow. What we learned in Reno v. ACLU, where the Supreme Court found much of the non-Section 230 parts of Communications Decency Act unconstitutional, is that online speech is just as protected as offline speech. Congress does not get to pass laws affecting speech in ways that don’t meet the exacting standards the First Amendment requires. In particular, if speech is impacted, it can only be by a law that is narrowly tailored to the problem it is trying to solve. Yet, as fellow amici wrote, speech is indeed being affected, deliberately, and, as we've seen from the harm that has accrued, by a law poorly tailored to the problem it is ostensibly intended to solve. As we explained in our brief, FOSTA has led to this result by creating a real and palpable fear of significant liability for platforms, and thus already driven them to make choices that have harmed online speakers and their speech.

Filed Under: cda 230, fosta, free speech, intermediary liability, standing, unconstitutional
Companies: copia institute, engine, reddit

PEN America Sues Donald Trump For 1st Amendment Violations In Attacking The Press

from the shall-not-be-infringed dept

PEN America, the well known human rights group that focuses on protecting freedom of expression for writers has now sued President Trump for a bunch of different attacks on the First Amendment -- using Trump's repeated tweets and threats as the key evidence in making these claims. The complaint lists out a bunch of different statements and actions by the President that PEN America argues all violate the 1st Amendment. There are four separate actions by the President described in the lawsuit, and let's go through them one by one.

First up is the President issuing an executive order about raising postal rates in retaliation against Jeff Bezos and Amazon, because Bezos (not Amazon) owns the Washington Post, and the Washington Post has been doing pretty strong reporting in revealing all sorts of Presidential misdeeds.

Defendant Trump has repeatedly threatened to use the U.S. Postal Service (“Postal Service”) and its rate structure to retaliate against Jeff Bezos, the owner of the Washington Post (also referred to as “the Post”), whose coverage he dislikes.

On April 12, 2018, he followed through on his threats by signing an Executive Order directing the Postal Service to review its rates. This Order, on information and belief, was aimed at Bezos’s company, Amazon, and was motivated by Defendant Trump’s displeasure at the reporting of Bezos’s other company, the Washington Post.

From the beginning of his campaign for President, Defendant Trump has repeatedly attacked the Post for its coverage of him, calling it biased, fictitious, and “a disgrace to journalism.” In a 2016 interview, he called the Post “a political instrument” that was writing “bad” and “wrong” stories “with no proper information,” and accused its reporters of writing a “false” book about him. He has routinely called the Washington Post “fake news” and personally attacked its writers.

During his presidency, when the Washington Post published unflattering stories about the inner workings of his Administration, Defendant Trump frequently responded with pointed denunciations of the accuracy of the Post’s work. On April 8, 2018, for example, after the Post ran a story about John Kelly’s frustrations as Chief of Staff, Defendant Trump tweeted: “The Washington Post is far more fiction than fact. Story after story is made up garbage - more like a poorly written novel than good reporting. Always quoting sources (not names), many of which do not exist. Story on John Kelly isn’t true, just another hit job!”

Defendant Trump has turned his ire over the Washington Post’s coverage into a vendetta against its owner Bezos, targeting Bezos’s main asset, Amazon, by issuing a series of threats to take governmental action that would harm Bezos and Amazon, and which were eventually acted upon.

During his campaign, Defendant Trump repeatedly threatened future action against Amazon, regularly tied to objections over the Post’s coverage. On information and belief, he did this to signal to Bezos and Amazon shareholders that he could – and would – use his official powers to adversely impact Amazon’s tax status and subject it to antitrust enforcement. As candidate Trump put it at a rally on February 26, 2016, while referring to Bezos and Amazon: “If I become president, oh do they have problems. They’re going to have such problems.”

There's a lot more along those lines... and then it talks about Trump's threats concerning the postal rates:

On December 29, 2017, following a Washington Post story on the Administration’s internal deliberations on how to handle “worries of a tough year ahead,” and a satirical end-of-year piece entitled “Was 2017 the end of something or just the beginning,” Defendant Trump tweeted that the Postal Service should be charging more to deliver Amazon’s packages: “Why is the United States Post Office [sic], which is losing many billions of dollars a year, while charging Amazon and others so little to deliver their packages, making Amazon richer and the Post Office dumber and poorer? Should be charging MUCH MORE!”

On information and belief, Defendant Trump has since repeatedly been told by his staff that his assertions about Amazon’s harmful impact on the Postal Service are incorrect, but he continues to repeat them.

Defendant Trump recently renewed and escalated his threats of action against Amazon following unflattering reporting in the Washington Post detailing the damage done to Trump’s family businesses by allegations involving adult film actress Stormy Daniels and Robert Mueller’s investigation into the 2016 election. Defendant Trump repeated his false claims about costs to the Postal Service and his threats to raise Amazon’s shipping rates. Once again, he left no doubt that his motivation was animus against the Post, again calling it a “lobbyist” and “weapon” for Bezos.

In a series of tweets from March 29, 2018 to April 3, 2018, Defendant Trump made repeated false statements about Amazon and issued repeated threats to raise its postal shipping rates. Over the course of these threats from President Trump, Amazon sustained a $60 billion dip in market value.

On information and belief, Defendant Trump’s attacks on Amazon were motivated by animus toward Bezos and the Washington Post on account of its coverage of him and his Administration. For example, in an April 13, 2018 article by Maya Kosoff, Vanity Fair quoted White House sources as saying that President Trump “has zero respect” for the Washington Post and wants to “[f--k] with” Bezos as a result.

On April 12, 2018, Defendant Trump followed through on his retaliatory threats, issuing an Executive Order directing a review of the Postal Service’s “unsustainable financial path.” The order included several provisions directed at Amazon, including an order to review the “expansion and pricing of the package delivery market.”

On information and belief, President Trump had by this time repeatedly and personally directed the Postmaster General to raise Amazon’s rates.

Even during the pendency of the review, Defendant Trump continued to threaten further action against Bezos and Amazon and linked his motivation clearly to the Washington Post’s coverage. On July 23, 2018, immediately following reports in the Post that President Trump was unhappy with the progress of talks with North Korea, the President tweeted that “[t]he Amazon Washington Post has gone crazy against me ever since they lost the Internet Tax Case in the U.S. Supreme Court,” i.e. South Dakota v. Wayfair, Inc. He then renewed his threats to take antitrust action against Amazon and to raise its postal delivery rates. President Trump tweeted “Next up is the U.S. Post Office [sic] which they use, at a fraction of real cost, as their ‘delivery boy’ for a BIG percentage of their packages. . . In my opinion the Washington Post is nothing more than an expensive (the paper loses a fortune) lobbyist for Amazon. Is it used as protection against antitrust claims which many feel should be brought?”

On October 11, 2018, the Postal Service announced proposed rate hikes for its services, to include rate increases of up to 12 percent for the Parcel Select service used by Amazon. On information and belief, this action by the Postal Service would not have been taken but for the President’s clearly expressed desire to punish Amazon for the reporting of the Washington Post.

This really seems like a case where Trump's own words and tweets could potentially sink him. Normally, it would be pretty difficult to directly link something like raising postal rates on Amazon to direct retaliation for coverage in the Washington Post, but as the complaint lays out, because Trump himself has directly (incorrectly) argued that Amazon and the Washington Post are the same, and that the effort to raise rates was to punish Bezos and the Post, it seems like there's a stronger argument here.

The larger issue may be standing. There appear to be strong arguments here for the Washington Post and possibly Bezos himself and/or Amazon to have better standing, but PEN America is a tougher one. The organization tries to get around this by arguing that its members write for the Washington Post and that this has the potential to harm them. That seems like the key point that will be challenged in court. If they can get over the standing question, then it seems like they have a strong argument, mainly because Trump can't keep his mouth shut.

The second issue seems like more of a long shot to me. It's about the DOJ's effort to block the AT&T takeover of Time Warner (that effort has mostly failed). PEN America's suit argues that the DOJ's antitrust enforcement here was really about Trump's well-known animus towards CNN. And he did sometimes mention the merger, as detailed in the complaint:

Defendant Trump has done far more than exercise the right to make known his dislike of CNN’s reporting. At a rally during the 2016 campaign, Defendant Trump threatened to block a proposed merger between Time Warner, CNN’s parent company, and AT&T, once he gained control of the DOJ, and made clear his retaliatory motive for doing so. On October 22, 2016 in Gettysburg, Pennsylvania, he denounced the AT&T–Time Warner merger, telling his audience that CNN was part of the media “power structure” trying to suppress his votes. “AT&T is buying Time Warner and thus CNN,” Defendant Trump said, declaring it “a deal we will not approve in my administration.”

Once in office, Defendant Trump followed through on this threat. On information and belief, during the pendency of the AT&T–Time Warner merger review process, advisers to President Trump discussed using the merger approval application as “a potential point of leverage over [CNN].”

On information and belief, DOJ demanded the sale of CNN as a condition of its approval of the merger, leading a source close to the merger process to opine that “[t]his has become political . . . It’s all about CNN.”

This claim seems much weaker than the first. To be clear, it has the same standing issues as the first, but even if we get past those, vague threats to use antitrust action here doesn't mean that's actually what happened. Obviously, the discovery process here would be a big deal, and perhaps they can turn up a smoking gun. But there were plenty of legitimate antitrust reasons to block this merger, so the direct causal line here does seem tough to prove.

Separate from that, however, are threats to use DOJ enforcement powers against Google and other social media companies over the (made up) claim of political bias in search and recommendations. Here, as we've argued, the DOJ appears to be directly positioning the First Amendment-protected moderation and ranking decisions of internet companies as some sort of anti-trust violation. That's clearly in violation of the First Amendment, and the PEN America complaint highlights this as well:

Defendant Trump’s threats to use the DOJ to influence the flow of information to the public is not limited to CNN. On August 28, 2018, he complained, via Twitter, that:

Google search results for ‘Trump News’ shows only the viewing/reporting of Fake News Media. In other words, they have it RIGGED, for me & others, so that almost all stories & news is BAD. Fake CNN is prominent. Republican/Conservative & Fair Media is shut out. Illegal? 96% of . . . results on ‘Trump News’ are from National Left-Wing Media, very dangerous. Google & others are suppressing voices of Conservatives and hiding information and news that is good. They are controlling what we can & cannot see. This is a very serious situation-will be addressed!

Hours later, White House economic advisor Larry Kudlow, standing outside the White House, threatened that the Trump Administration is “taking a look” at imposing regulations on Google.

On September 5, 2018, Attorney General Jeff Sessions announced his intention to convene a meeting of Republican state attorneys general to discuss a possible federal investigation of whether Google, Facebook, and other social media companies are violating antitrust and free speech laws.

On September 22, 2018, the White House leaked a draft Executive Order that would instruct federal law enforcement and antitrust agencies to open investigations into social media companies. This leak was intended to, and did, have a negative market impact on these companies. The intent of leaking this information was to show these companies and other speakers the President dislikes that his White House has the power to significantly injure them with a simple leak if it dislikes their content. The intent of leaking this information was also to incentivize investors to pressure these companies to modify their content to be more to the liking of the President in order to avoid retaliatory actions that could impact the investors’ bottom line.

Once again, the standing issue is a big one here that may be difficult for PEN America to get past. But this kind of activity has clear First Amendment problems. We detailed out a bunch of cases that highlighted how the courts have ruled against politicians and government officials who use the power of their office to intimidate companies into publishing (or not publishing) protected speech.

Next up is Trump's semi-regular threats to "pull" the licenses from major TV networks over negative coverage of his Presidency. He does this every so often even though there aren't any such licenses to pull. Even networks like NBC, ABC and CBS have local licenses for their affiliates, but not a general license for their parent companies -- and Trump can't "pull" those non-existent licenses anyway.

Minutes later, Defendant Trump followed that tweet with another threatening NBC’s broadcast license. “With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!”

Later the same day, Defendant Trump broadened his threat to more outlets: “Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!”

Beyond the standing question (again), the issue here will be the lack of action. It's just Trump venting stupidly on Twitter, and again such licenses don't even exist. Obviously, PEN's argument here is that the local affiliate licenses do exist, and these threats to pull general licenses may be interpreted by them as a threat to pull the local licenses -- and that could impact and influence coverage at the local level. But... that seems like much more of a stretch than the other claims.

Next up are attempts to limit the access of White House reporters to information in the White House.

Defendant Trump’s behavior in denying journalist critics access to information from the White House and about his Administration is a pattern dating back to his campaign. Prior to the election, on August 25, 2015, Defendant Trump had Jorge Ramos, Univision’s lead anchor, removed from a press conference after Ramos tried to ask Defendant Trump a question about immigration policy.

While on the campaign trail, Defendant Trump barred reporters from several news organizations, including the Washington Post, from obtaining press credentials at his rallies, news conferences, and other events.

As President, Defendant Trump has continued to threaten journalists whose coverage or questioning he found unfavorable to him or his Administration with revoking their access to official Administration and White House events.

On information and belief, Defendant Trump has repeatedly directed White House staff to ban reporters critical of his Administration from covering official events or to take away their press credentials. This included reporters from the Washington Post, CNN, and NBC News, and Defendant has specifically told his staff to consider blacklisting Jim Acosta of CNN and April Ryan of the American Urban Radio Networks in retaliation for their coverage, of which he disapproves.

Again, there's a standing issue here, and I'm a bit surprised PEN America didn't find a journalist to be a co-plaintiff at least on this claim, as that would make it stronger. Beyond that, there are some questions about what standards the White House uses in favoring some journalists over others, that could potentially raise some First Amendment issues. If the decisions are specifically based on their coverage and if it's positive or negative, then there's a stronger case there. The White House, of course, will likely suggest there are other reasons for limiting access to certain journalists.

In the end, this should be an interesting First Amendment case to follow, though I do think the standing question will be a tough hurdle for PEN America, without specifically naming individuals or organizations directly harmed by these actions (some of which do appear to raise big First Amendment questions).

Filed Under: 1st amendment, doj, donald trump, first amendment, free speech, postage rates, standing
Companies: pen america

District Court Misses The Forest For The Trees In Dismissing Constitutional Challenge To FOSTA

from the stop-hitting-yourself dept

It's like the scene in the Naked Gun, where Leslie Nielsen stands outside the exploding fireworks factory telling everyone, "Nothing to see here. Please disperse." Such is the decision by the district court dismissing the EFF's lawsuit challenging the constitutionality of FOSTA.

Since FOSTA's passage, many have largely been reacting in terror at its vague, yet broad, language threatening civil and even criminal liability. It has led to the censorship of enormous swathes of legitimate speech as platforms seek to reduce this new risk. But in a decision Monday dismissing the case for lack of standing the district court basically declared that it couldn't understand what everyone was so worked up over.

Standing has to do with who is entitled to file a lawsuit. Ordinarily you have to have suffered an actual injury, although in certain situations, such as constitutional challenges, parties can have standing if it is likely that they will suffer an injury. After all, we wouldn't want people to have to expend resources needlessly in the effort to comply with an unconstitutional law, or have to risk prosecution in order to have its constitutionality tested before the courts. But the injury risk still needs to be reasonably likely.

Imminence, the element most relevant here, is concededly a somewhat elastic concept. Nevertheless, imminence "cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes – that the injury is certainly impending." […] The concept of imminence has been particularly important in the context of pre-enforcement challenges. The Supreme Court has held that plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement. A credible threat of prosecution exists when the challenged law is aimed directly at plaintiffs, who, if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution. Thus, fear of prosecution cannot be "imaginary or wholly speculative," and allegations of a subjective "chill" are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm. [p. 15-16]

Yet here the court decided it was not.

It would be great if it were right, and no one had anything to fear. But while the court essentially declared the fears contorting the availability of online speech to be much ado about nothing, it didn't do so in a way that would effectively allay those fears.

As the court ran through its analysis of the standing of each plaintiff, it struggled to see how what they proposed to do, and how what they feared would be chilled by the law, was targeted by the law.

[P]laintiffs say, FOSTA criminalizes "anything that promotes or facilitates prostitution, and not a specific crime." This is particularly problematic because prostitution is an area where there has been significant advocacy, both by government entities and by private citizens. As plaintiffs see it, that advocacy places them in crosshairs. In pressing this argument, however, plaintiffs ignore key textual indications that make clear that FOSTA targets specific acts of illegal prostitution not the abstract topic of prostitution or sex work. [p. 22]

The above is some of what the court had to say about the lead plaintiff Woodhull Freedom Foundation. It concluded similarly for plaintiff Human Rights Watch. For plaintiff Jesse Maley a/k/a Alex Andrews, the creator and operator of an actual platform, ratethatrescue.org, it similarly minimized her concerns.

Under Maley's reasoning, because providing housing or childcare services to sex workers "make[s] sex work easier," Rate That Rescue could be said to promote or facilitate prostitution. For this reason, Maley fears that amendments to Section 230 - which clarify that immunity does not extend to conduct made unlawful by Section 2421A - could expose her to prosecution for the speech of third parties on Rate That Rescue. […] Her concerns, however, are unwarranted. Put simply, Maley has failed to show that Section 230 amendments expose her to a credible threat of prosecution. That is so because Maley, on the current record, lacks the mens rea to violate any of the provisions specified in Section 230(c)(5). […] In managing Rate That Rescue, Maley cannot possibly be said to act "with the intent to promote or facilitate the prostitution of another person" in violation of Section 2421A. Maley's declaration concedes as much, repeatedly expressing concern that law enforcement could determine that "the user-generated content on Rate That Rescue promotes or facilitates prostitution." But those formulations lack the critical mens rea element of the Section 2421A offense. Indeed, Maley herself does not even assert that law enforcement could credibly contend that, in managing Rate That Rescue, she acts "with the intent to promote or facilitate" the prostitution of another person. Of course, the mere promotion or facilitation of prostitution is not enough: Maley must intend that her conduct produce the specific result. [p. 25-26]

It's a statutory parsing that would be a lot more assuring if it didn't ignore another perfectly plausible read of the statute. Of course it's ridiculous to say that Maley intended to promote prostitution. But that's not what the statute forbids. In a subsequent passage the court dismisses the argument that FOSTA's amendments to 18 U.S.C. Sec. 1591 create any additional legal risk for platforms. But the amendments expand the prohibition against the "participation in a venture" to engage in sex trafficking to include "knowingly assisting, supporting, or facilitating" such a venture. This language suggests that liability does not require knowledge of a specific act of sex trafficking. Instead, merely providing services to sex traffickers – even ones unsuccessful in their sex trafficking venture – would seem to trigger liability. In other words, knowledge seems to hinge not on knowledge of a sex trafficking act but on knowledge of a sex trafficking venture (including one that may even be victimless), yet both the statute and the court are silent as to how much, or how little, a platform would need to actually know in order to have "knowledge" for purposes of the statute. This vagueness is what is so chilling to them, because it forces them to guess conservatively. But the court provides little relief, and in dismissing the case denies the opportunity to even attempt to gain any.

Also, while these plaintiffs were suing because they feared prospective injury, plaintiff Eric Koszyk has already experienced a tangible injury directly traceable to the changes in the law wrought by FOSTA. He was a massage therapist who relied on Craigslist to advertise his services. In the wake of FOSTA, Craigslist shut down its Therapeutic Services section, thus limiting his ability to find customers. Without FOSTA (which would result if it were declared unconstitutional) it would seem that the shutdown decision could be reversed. But to the court this result would be too speculative:

Unfortunately for Koszyk, he cannot establish redressability under the relevant precedents. That is so because Koszyk has not established that a victory "will likely alleviate the particularized injury alleged." It is well established that a plaintiff lacks standing when the "redress for its injury depends entirely on the occurrence of some other, future event made no more likely by its victory in court." When, as here, a third party can exercise "broad and legitimate discretion the courts cannot presume either to control or to predict," a court is generally unable to redress the alleged injury and, accordingly, standing is found wanting. [p. 27-28]

This is insanity. Of course the court can't force Craigslist to re-open its Therapeutic Services section. But it can eliminate the reason for its closure and at least make the decision to re-open it possible. As long as FOSTA remains on the books it eliminates that possibility, and that's an injury.

It didn't go any better for the Internet Archive's standing as a plaintiff. As a platform that handles a massive amount of third party created content, for which review would be impossible, it worried it could nonetheless be caught in FOSTA's net. Don't worry about it, said the court.

Although the Internet Archive represents that it does not intend to promote sex trafficking or prostitution, it believes that the Section 230 amendments 2 and the ambiguity of their scope may expose it to liability. Once again, however, there are no facts in the record supporting an inference of the mens rea standard necessary to peel back Section 230's protections. The Internet Archive's practice of sweeping up vast amounts of content from the web for indefinite storage, and its attested practical inability to review the legality of that third-party content, mean that that entity simply cannot meet the stringent mans rea standard required for liability under Sections 2421A, 1591, or 1595. [p. 28]

In a way, that sounds great. Don't know what's in all that user content? No problem. But the problem is, inevitably platforms are going to have some knowledge of what's in all the user content. In fact, if Section 230 is going to work as intended to encourage platform moderation of content they are going to have to know. And, thanks to this decision, this knowledge remains a terrifying prospect for all.

It is likely that EFF will continue to press forward with this case, so it is not the final word on FOSTA's constitutionality, but it is an unfortunate start.

Filed Under: constitutionality, eric koszyk, fosta, jesse maley, mens rea, sesta, standing
Companies: eff, internet archive, woodhull freedom foundation

Ninth Circuit Stops Monkeying Around And Denies En Banc Review Of The Monkey Selfie Case

from the it-ain't-over-till-its-over dept

Whatever will we do without the Monkey Selfie case rearing its not-actually-copyrighted head every few months? We might finally get to find out, now that the Ninth Circuit has declined to rehear the appeal en banc. This denial now makes clear that monkeys lack standing to sue for copyright, at least within the Ninth Circuit. Someday (hopefully not soon) we may find out what other Circuits have to say about primate copyrights, but for now we can finally be confident that they lack standing to sue over them here.

Provided that no cert petition is granted, of course. And given that this is a case that has thus far steadfastly refused to end, it is way too soon to be confident that this is truly the last we've heard from Naruto or any of his alleged next friends. We should at least know whether a cert petition's been filed in about three months or so, though (see Rule 13), so stay tuned...

Filed Under: 9th circuit, copyright, david slater, monkey selfie, naruto, standing
Companies: peta

We Interrupt The News Again With Hopefully The Last Update From The Monkey Selfie Case

from the with-next-friends-like-these dept

And now for the moment you've all been waiting for: a decision from the Ninth Circuit in the Monkey Selfie case.

Upshot: the case remains dismissed, and the defendants get to recover attorney fees for the appeal. There's also relatively little to say on the copyright front. This case has turned almost entirely into litigation about standing and proven to be a significant wrench in the works for any future litigation anyone, but PETA in particular, might want to bring on behalf of animals.

First, the court skewers PETA over the quality of its "friendship" with Naruto, casting significant side-eye towards PETA's apparent settlement of the lawsuit, which led to its attempt to dismiss the appeal, while at the same time leaving some question as to whether Naruto himself was down with this settlement and plan to dismiss his appeal. From footnote 3:

We feel compelled to note that PETA’s deficiencies in this regard go far beyond its failure to plead a significant relationship with Naruto. Indeed, if any such relationship exists, PETA appears to have failed to live up to the title of “friend.” After seeing the proverbial writing on the wall at oral argument, PETA and Appellees filed a motion asking this court to dismiss Naruto’s appeal and to vacate the district court’s adverse judgment, representing that PETA’s claims against Slater had been settled. It remains unclear what claims PETA purported to be “settling,” since the court was under the impression this lawsuit was about Naruto’s claims, and per PETA’s motion, Naruto was “not a party to the settlement,” nor were Naruto’s claims settled therein. Nevertheless, PETA apparently obtained something fromthe settlement with Slater, although not anything that would necessarily go to Naruto: As “part of the arrangement,” Slater agreed to pay a quarter of his earnings from the monkey selfie book “to charities that protect the habitat of Naruto and other crested macaques in Indonesia.” See Settlement Reached: ‘Monkey Selfie’ Case Broke New GroundForAnimal Rights, PETA, https://www.peta.org/blog/settlementreached-monkey- selfie-case-broke-new-ground-animal-rights/ (last visited Apr. 5, 2018). But now, in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed “friend” having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests. Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own. Puzzlingly, while representing to the world that “animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way,” see PETA, https://peta.org (last visited Apr. 5, 2018), PETA seems to employ Naruto as an unwitting pawn in its ideological goals. Yet this is precisely what is to be avoided by requiring next friends to have a significant relationship with, rather than an institutional interest in, the incompetent party—a point made by ChiefJustice Rehnquist in Lenhard v. Wolff, 443 U.S. 1306, 1312 (1979). See infra page 9 for exact language.

But repudiating PETA's "next friend" standing doesn't end the inquiry. There is a 2004 case from the Ninth Circuit, Cetacean Community v. Bush, which established the precedent that animals might be able to sue for themselves, even without a "next friend" to do the suing for them. The court decides it has to defer to that precedent, although so reluctantly as to undermine its persuasive effect in future cases.

Reaching that conclusion didn't end the inquiry, however. Cetacean Community means that animals might be theoretically able to sue for themselves in the Ninth Circuit, but it doesn't mean they will necessarily have a viable claim. To figure out whether they do, we have to look at the applicable statute, which in this case is the Copyright Act. And here the court concludes that Naruto, being a monkey, has no standing to sue for copyright infringement.

Several provisions of the Copyright Act also persuade us against the conclusion that animals have statutory standing to sue under the Copyright Act. See Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”). For example, the “children” of an “author,” “whether legitimate or not,” can inherit certain rights under the Copyright Act. See 17 U.S.C. §§ 101, 201, 203, 304. Also, an author’s “widow or widower owns the author’s entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author’s interest.” Id. § 203(a)(2)(A). The terms “children,” “grandchildren,” “legitimate,” “widow,” and “widower” all imply humanity and necessarily exclude animals that do not marry and do not have heirs entitled to property by law. Based on this court’s decision in Cetacean and the text of the Copyright Act as a whole, the district court did not err in concluding that Naruto—and, more broadly, animals other than humans—lack statutory standing to sue under the Copyright Act.

So there you go. Our long national nightmare of not knowing whether any random monkey might be able to sue for copyright infringement has been resolved. We may now go about our lives confident in the knowledge that they cannot, at least not in the Ninth Circuit.

Filed Under: 9th circuit, copyright, david slater, monkey selfie, naruto, next friend, public domain, standing
Companies: peta

Judge Says Yahoo Still On The Hook For Multiple Claims Related To Three Billion Compromised Email Accounts

from the if-you-don't-fix-the-front,-you'll-be-paying-on-the-back-end dept

A federal judge is going to let a bunch of people keep suing Yahoo over its three-year run of continual compromise. Yahoo had hoped to get the class action suit tossed, stating that it had engaged in "unending" efforts to thwart attacks, but apparently it just wasn't good enough to prevent every single one of its three billion email accounts from falling into the hands of hackers.

In a decision on Friday night, U.S. District Judge Lucy Koh in San Jose, California rejected a bid by Verizon Communications Inc, which bought Yahoo’s Internet business last June, to dismiss many claims, including for negligence and breach of contract.

Koh dismissed some other claims. She had previously denied Yahoo’s bid to dismiss some unfair competition claims.

Yahoo was accused of being too slow to disclose three data breaches that occurred from 2013 and 2016, increasing users’ risk of identity theft and requiring them to spend money on credit freeze, monitoring and other protection services.

Three billion is a lot of potential class-mates, even though many Yahoos users had moved on to more viable/useful services long before the breach began. That being said, password reuse is common. So is the tendency to have the same user name in place across several platforms. And, needless to say, personally identifiable info stays the same, no matter what platform Yahoo's former users have strayed to.

The complaint -- amended again after news broke that Yahoo's entire user base had been compromised -- notes that Yahoo's "unending" efforts were routinely terrible, if not practically nonexistent. The suit points out multiple Yahoo hosts were compromised in 2008 and 2009. The next year, Google notified Yahoo that its systems were being used to attack Google. And in 2012, Yahoo suffered two breaches, including one stemming from a SQL injection attack that revealed the company unendingly stored passwords in plain text.

A couple of claims have been dismissed but the most damaging -- negligence -- remains. The plaintiffs so far have presented plenty of evidence that Yahoo handled users' PII extremely carelessly. From the decision [PDF]:

First, the contract entered into between the parties related to email services for Plaintiffs. Plaintiffs were required to turn over their PII to Defendants and did so with the understanding that Defendants would adequately protect Plaintiffs’ PII and inform Plaintiffs of breaches. Second, it was plainly foreseeable that Plaintiffs would suffer injury if Defendants did not adequately protect the PII. Third, the FAC asserts that hackers were able to gain access to the PII and that Defendants did not promptly notify Plaintiffs, thereby causing injury to Plaintiffs. Fourth, the injury was allegedly suffered exactly because Defendants provided inadequate security and knew that their system was insufficient. Fifth, Defendants “knew their data security was inadequate” and that “they [did not] have the tools to detect and document intrusions or exfiltration of PII.” “Defendants are morally culpable, given their repeated security breaches, wholly inadequate safeguards, and refusal to notify Plaintiffs . . . of breaches or security vulnerabilities.” Id. Sixth, and finally, Defendants’ concealment of their knowledge and failure to adequately protect Plaintiffs’ PII implicates the consumer data protection concerns expressed in California statutes, such as the CRA and CLRA.

Yahoo also has to keep fighting "deceit by concealment" allegations stemming from its delayed reporting of known security breaches.

Defendants also criticize Plaintiffs for continuing to use Yahoo Mail and taking no remedial actions after learning of Defendants’ allegedly inadequate security. However, Defendants fail to acknowledge that Defendants’ delayed disclosures are likely to have harmed Plaintiffs in the interim. Plaintiffs did not even know that they should take any remedial actions during the periods of Defendants’ delayed disclosures. Moreover, contrary to Defendants’ suggestion, the actions that Plaintiffs took after the fact do not conclusively determine what actions they would have taken if they had been alerted before the fact. The FAC provides at least one good reason why Plaintiffs may not have ceased their use of Yahoo Mail after the fact—namely, Plaintiffs have already established their “digital identities around Yahoo Mail.” Plaintiffs can consistently plead that they took minimal or no action after learning of the security defects but that they “would have taken measures to protect themselves” if they had been informed beforehand.

In total, Yahoo is still on the hook for 9 of 15 allegations related to the massive security breach. And it has no one to blame but itself if new owner Verizon ends up shelling out for damages. Yahoo's terrible security had been a problem for a half-decade before the 2013 breach. Three years later, it became clear everything Yahoo had collected on three billion email accounts was now in the hands of other people. This long line of breaches show Yahoo was very interested in increasing its user base, but much less motivated to protect their info.

Filed Under: breach, cybersecurity, email, hack, liability, negligence, security, standing
Companies: verizon, yahoo

First Ever En Banc FISA Court Review Gives Plaintiffs Standing To Challenge Surveillance Program Secrecy

from the How-I-Learned-To-Stop-Worrying-And-Love-The-Adversarial-Process dept

One more thing we can give Ed Snowden credit for: the possibility we may be seeing even more public access to FISA court opinions and other FISA docs in the future. [h/t Mike Scarcella]

There's still a long way to go procedurally, but this latest ruling from the FISA court will allow a First Amendment lawsuit by the ACLU and the Yale Law School Media Freedom and Information Access Clinic to move forward. Being granted the standing to actually challenge government surveillance is a rarity. The cover of national security darkness has prevented many plaintiffs from being able to allege harm, but the Snowden leaks have provided many public entities the information they need to shore up these allegations.

The FISA court review process behind this opinion is itself a unicorn: it's an en banc review of the plaintiffs' challenge -- the first time this has ever happened in the history of the court. The opinion [PDF] notes the rarity of the occasion as well as acknowledges the significant "standing" hurdle the plaintiffs were facing.

Figuring out whether a plaintiff has standing to bring a novel legal claim can feel a bit like trying to distinguish a black cat in a coal cellar. "Although the two concepts unfortunately are blurred at times, standing and entitlement to relief are not the same thing. Standing is a prerequisite to filing suit, while the underlying merits of a claim ... determine whether the plaintiff is entitled to relief." Arreola v. Godinez, 546 F.3d 788, 794-95 (7th Cir. 2008). The Initial Opinion in this action decided that Movants -- the American Civil Liberties Union and Yale Law School's Media Freedom and Information Access Clinic -- had suffered no injury-in-fact and thus lacked standing to bring their First Amendment claim for access to redacted portions of certain of this Court's opinions. Sitting en banc for the first time in our history, we now vacate that decision. Whatever the merits of Movants' suit, we conclude that they have asserted a sufficient injury-in-fact to pursue it.

Shortly thereafter, the judges tip their hats to Snowden.

By necessity, this Court conducts much of its work in secrecy. But it does so within a judicial system wedded to transparency and deeply rooted in the ideal that "justice must satisfy the appearance of justice." Levine v. United States, 362 U.S. 610, 616 (1960). It comes as no surprise, then, that members of the public may at times seek to challenge whether certain controversies merit our continued secrecy or, instead, require some degree of transparency. The matter before us was born from two such challenges. On June 6, 2013, two newspapers released certain classified information about a surveillance program run by the Government since 2006. Within a day, the Director of National Intelligence declassified further details about this bulk-data-collection program, acknowledging for the first time that this Court had approved much of it under Section 215 -- the "business records" provision -- of the Patriot Act, 50 U.S.C. § 1861.

From there sprung the First Amendment challenge: the plaintiffs argued the Snowden leaks stripped away the justification for continued secrecy by the government. They argued the ongoing refusal to hand over the government's legal justification of the program -- as approved by the FISA court -- violated the First Amendment "right of access" to courtroom proceedings and documents.

As more documents were leaked, the right to access argument grew stronger -- especially when the leaks were followed by official government acknowledgement of each program's existence and, in some cases, the official release of other documents by the government itself.

The court now agrees -- after en banc review -- that the alleged harm is sufficient enough to move forward with its lawsuit against the government. It also notes that the granting of standing doesn't pass any judgment on the merits of the arguments, other than to acknowledge the plaintiffs have the right to pursue them. (In other words, courts will entertain arguments destined for doom, but denying doomed arguments upfront would violate other rights.)

A plaintiff, for instance, might lack standing "to complain about his inability to commit crimes because no one has a right to a commit a crime," and no Court could recognize such an interest. Citizen Ctr. v. Gessler, 770 F.3d 900, 910 (10th Cir. 2014). On the other hand, he would have standing to bring colorable First Amendment claims, even if he would ultimately lose on the merits.

[...]

Indeed, were we to define rights with any greater level of specificity, no plaintiff would have standing to challenge established First Amendment precedent. This is certainly not the case.

[...]

At bottom, the legally-protected-interest test is not concerned with determining the proper scope of the First Amendment right or whether a plaintiff is correct that such right has in fact been invaded; that is a merits inquiry. Waukesha, 320 F.3d at 235. The test instead seeks only to assess whether the interest asserted by the plaintiff is of the type that "deserve[s] protection against injury."

[...]

Against this backdrop, the sufficiency of Movants' allegation of such a legally protected interest appears clear. They identify the invasion of an interest - the First Amendment right to access judicial proceedings - that courts have repeatedly held is capable of "being known or recognized."

[...]

No more than this is necessary for standing purposes, even if Movants ultimately fail to prove that the precise scope of the First Amendment right extends to redacted portions of our judicial opinions under the Richmond Newspapers test.

So, it's a win of sorts, even though it's very limited. As Mike Scarcella noted, it's a "foot in the door," rather than a victory. But it stems from a historic first -- an en banc review by the FISA court -- and indicates the nation's most secretive court is willing to address issues in a more adversarial setting than it's used to.

There's a lengthy dissent attached that appears to believe there's no right to access to classified documents and this decision will set up the government for endless redaction challenges, but that's kind of the point. Even the nation's most secret court shouldn't be completely beyond the reach of the citizens it ultimately serves.

Filed Under: fisa, fisa court, fisc, secrecy, standing, transparency