Former Trump Aide Launches Twitter Clone, That Seems To Yank A Ton Of Data Right Out Of Twitter; Already Has First Content Moderation Crisis

from the freeze-peach dept

Just as more news of what Trump wanted from Parler breaks, comes the news that his somewhat infamous former aide, Jason Miller, has launched a social media site called GETTR. It should be noted that through all of the rumors about Trump starting his own social network, it was usually Jason Miller who was claiming that it was on the way.

Apparently, though, Miller stepped down from his role as Trump spokesperson to run GETTR -- and there are reports claiming that the originator of GETTR is someone trying to build "an important link between China and the West" with GETTR and a series of related apps.

Separately, a Bloomberg White House reporter says Trump isn't planning on joining GETTR and is still planning yet another social network. So... we'll see.

Of course, like every single social media site, while this one claims it's all about free speech, its terms of service make it clear it can kick you off the platform for any reason whatsoever:

GETTR holds freedom of speech as its core value and does not wish to censor your opinions. Nonetheless, GETTR may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your UGC, and GETTR may, in its sole discretion, reject, delete, move, re-format, remove, or refuse to post or otherwise make use of UGC without notice or any liability to you or any third-party in connection with our operation of UGC venues in an appropriate manner, such as to enhance accessibility of UGC, address copyright infringement, and protect Users from harmful UGC. Without limitation, we may, but do not commit to, do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, pornographic, violent, harassing, threatening, abusive, illegal, or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms. For example, this may include content identified as personal bullying, sexual abuse of a child, attacking any religion or race, or content containing video or depictions of beheadings. Such UGC submitted by you or others need not be maintained on the Service by us for any period of time, and you will not have the right, once submitted, to access, archive, maintain, change, remove, or otherwise use such UGC on the Service or elsewhere, except that certain users may have certain additional rights as provided for in the Privacy Policy.

I like how they take phrases directly from Section 230 and insert it there. Though it's also amusing that they add "inappropriate" to "otherwise objectionable," seeing as Trumpworld has been trying to delete "otherwise objectionable" from 230 entirely, and limiting 230 to just a specific list of "bad" stuff. Yet, GETTR seems to be claiming even broader rights to moderate.

And, not surprisingly, the company is already, on its first day, dealing with some moderation issues as it appears that people trolling the site are flooding it with junk:

It turns out that every social media site, so as not to be filled with garbage, has to do some moderation. Though it'll be fun to square the views of people who insist that social media sites shouldn't do any such moderation with the need to clear out the "lewd anime pics and the "pig poop balls" meme" from the #QAnon tag.

But there are some other concerns as well. People are noticing that not only does GETTR look remarkably similar to Twitter (with a slightly larger character limit -- 777 characters), but that it seems to be grabbing a bunch of data directly from Twitter. Indeed, in what appears like a move to "boost" user numbers, reports say that if you use your own Twitter account name, GETTR will "import" all your followers -- apparently by creating fake ghost accounts for all of those accounts.

GETTR’s app also claims to offer new users the ability to “import copies of your content from Twitter to GETTR.” And evidence on the site indicates that the new platform is also allowing users to import their actual Twitter followers — who somehow end up with GETTR accounts of their own.

For example, Republican Senate candidate Sean Parnell in Pennsylvania, had over 175,000 followers on GETTR as of Thursday afternoon, despite only joining the platform Thursday. His follower count on GETTR is identical to his follower count on Twitter.

The same goes for Murtaugh, Trump’s former 2020 communications director, who had amassed over 220,000 followers on both GETTR and Twitter as of Thursday afternoon.

“Tweets are up to the point you join, it won’t continuously suck them in. The idea is we want people to move from Twitter to Gettr,” said the person involved with the app. The person added that the app does not harvest the users current Twitter followers for the app, and again noted it is in Beta.

I do wonder how Twitter will feel about that. Of course, to some extent, this is somewhat like the vision Twitter has for Bluesky, but that hasn't been implemented yet. And just pulling out all of someone else's data raises... quite a few questions. It does seem worth mentioning that the ACCESS bill that was introduced in Congress recently would require Twitter and others to allow such exporting of data to other services.

But GETTR seems to be going, well, to a fairly extreme level. To get images from Twitter... it's hotlinking images DIRECTLY FROM TWITTER. In other words, it's not grabbing those images, it's just displaying them as hosted by Twitter. That's... bold. In some ways it's just reskinning Twitter.

I don't necessarily think this is a bad thing. As I've discussed for years, being able to let users snarf their own data out of one service and into another is a good thing for competition. But... it can also raise a bunch of other questions regarding privacy, data control, possibly copyright, and (under the decision in the Facebook/Power case), possible CFAA violations. That is to say, I hope GETTR has some good lawyers lined up. The fact that they apparently fucked up their DMCA registration doesn't bode well on that front.

Anyway, I guess we're now going to see if GETTR gets to speed run the content moderation learning curve the same way Parler did -- and how it deals with content moderation and (better yet) questions around Section 230.

Filed Under: content moderation, copyright, donald trump, hotlinking, jason miller, section 230, social media
Companies: gettr, twitter

Judge Don Willett Calls Out Appeals Court For Saying Setting A Suicidal Man On Fire Didn't Violate His Rights

from the Fifth-sees-writing-on-SCOTUS-wall,-shrugs dept

Earlier this year, the Fifth Circuit Court of Appeals granted qualified immunity to cops who responded to a call about a suicidal man by setting him on fire and killing him. The man, who had just finished pouring gasoline over himself, was tased by two officers, causing him to burst into flames, which soon spread to the house around him. They tased him despite knowing two things: the man was covered in gas and that the manufacturer of their [extremely-dark lol] "less-lethal" devices specifically warned against deploying them around flammable substances.

This is from the decision in which the Fifth saw nothing unjustifiable about these actions:

Upon entering, Officer Guadarrama detected the odor of gasoline. A woman directed the officers to a corner bedroom on the east side of the house. There they found Gabriel Eduardo Olivas (“Olivas”) leaning against a wall and holding a red gas can. After turning his flashlight on Olivas, Officer Elliott allegedly shouted to Sergeant Jefferson and Officer Guadarrama, “If we tase him, he is going to light on fire.”

That's exactly what happened:

Guadarrama and Elliott, at least, and maybe Jefferson as well, noticed that Olivas was holding some object that appeared as though it might be a lighter. Guadarrama, followed in short succession by Jefferson, fired his taser at the gasoline-soaked man, causing him to burst into flames. Corporal Ray and Officer Scott arrived at the scene at about this time. When they entered the house, they found Olivas engulfed in flames.

The fire spread from Olivas to the walls of the bedroom, and the house eventually burned to the ground. The officers at the scene were able to evacuate the family members who had remained in the house, but Olivas was badly burned and later died from his injuries.

The court looked past this and said the man posed a risk to himself and others. The risk was that he might set himself on fire and possibly the house as well. Before the cops intervened, it was only a risk. Once they did decide to act, it became a reality. Qualified immunity was awarded.

The plaintiffs asked the court to reconsider. It has decided it won't rethink its decision. But its denial [PDF] of an en banc hearing contains an incredibly angry dissent written by Judge Don Willett, who criticized the doctrine of qualified immunity as a rigged game the government always wins in another blistering dissent back in 2018.

Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

That's the way the Supreme Court has set up federal courts to fail the public. It has made it extremely difficult for judges to actually set precedent declaring the actions before them as clear violations of rights. Instead of reaching these decisions, the courts find ways to excuse law enforcement officers for their actions.

The Supreme Court seems to have reconsidered this approach in recent months. It has rejected two Fifth Circuit qualified immunity decisions and sent them back for reconsideration. These are noted in Willett's dissent, along with the absurdity of this particular decision. As Willett sees it, refusing to reconsider it now just means the court will be dealing with it later.

In recent months, the Court has signaled a subtle, perhaps significant, shift regarding qualified immunity, pruning the doctrine’s worst excesses. The Justices delivered that message in back-to-back cases, both from this circuit and both involving obvious, conscience-shocking constitutional violations. This case is of a piece—yet more troubling. Whereas the Supreme Court’s two summary dispositions checked us for holding, on summary judgment, that there was no violation of “clearly established” law, despite obvious constitutional violations, here we held, on a motion to dismiss, that there was no violation of law whatsoever, despite an obvious constitutional violation. By giving a premature pass to egregious behavior, we have provided the Supreme Court yet another message-sending opportunity.

Willett says the court decided to -- without explaining why -- ignore the allegations as pleaded, something it's supposed to do when the plaintiff is the non-moving party. The district court had denied immunity, resulting in the officers' appeal. Courts are supposed to consider all the facts and place it in front of a jury if needed. Qualified immunity bypasses all of this -- at least the way it's interpreted by too many courts -- and allows officers' claims that their actions were justified to be all the facts they need.

These are the facts of the case:

Gabriel Eduardo Olivas was burned alive. According to the facts alleged in the complaint—which we must accept as true—and drawing all reasonable inferences in Plaintiffs’ favor, two police officers tased the suicidal Olivas, despite:

1. knowing that he was soaked in gasoline

2. knowing from recent training that tasers ignite gasoline, and

3. knowing from a fellow officer’s explicit warning in that instant, “If we tase him, he’s going to light on fire!”

They fired their tasers anyway, knowing full well that using a taser was tantamount to using a flamethrower. Olivas burst into flames and later died.

Those facts were ignored by the Fifth Circuit.

The panel opinion, however, invoked something resembling summary-judgment review, hesitating over “disputed facts,” crediting the officers’ allegations instead of Plaintiffs’, and speculating about what non-lethal options the officers had—declaring that Officer Guadarrama fired first and had a “readily apparent justification for use of his taser” and that Officer Jefferson fired second and “had good reason” to tase an already ignited Olivas.

The Fifth Circuit decided to give these officers a pass because they could see no other way to prevent a man from setting himself on fire other than setting him on fire, and no way to save a house from being burned down than to start a fire that eventually burned the house down. Willett says this conclusion is mind-boggling in its absurdity.

The complaint alleges a plausible Fourth Amendment violation, and an obvious one at that. How is it reasonable—more accurately, not plausibly unreasonable—to set someone on fire to prevent him from setting himself on fire? To my mind, it is unfathomable to conclude with zero discovery, yet 100% finality, that no facially plausible argument exists that these officers acted unreasonably. Perhaps discovery would have supplied crucial facts that cut the officers’ way. But we have stumbled through the looking glass when we conclude—as a matter of constitutional law at the motion-to-dismiss stage—that government officials can burn someone alive and not even be troubled with discovery.

Deciding the case ends here -- with a determination no reasonable person in the same situation would have set a man on fire -- not only ignores the evidentiary standard needed to move a case forward (plausible allegations) but it allows future rights violations to be considered gray areas where no "reasonable" cop would know to act differently. Without knowing more, the court is acting in willful ignorance that provides nothing approaching justice.

Well, what should these officers have done? After all, this was a suicidal man drenched in gasoline experiencing a severe mental health crisis. A perfectly sensible question—but a premature one. Perhaps the panel is correct that “the officers had no apparent options.” Perhaps, as Plaintiffs allege, there were options galore, with the officers picking the one measure of force that was obviously off limits—a flamethrower. I cannot predict, at this stage, whether discovery will substantiate the existence of superior alternatives. But exploring that vital question is precisely why discovery exists.

That officers face difficult decisions in difficult situations is not a free pass for them to behave recklessly or to deploy excessive force. These difficult questions demand thorough answers, not early exits from lawsuits simply because the answers don't immediately present themselves.

These officers faced a harrowing, fast-moving situation, no question. But we cannot dispense with discovery as to the reasonableness of officers’ actions whenever circumstances are difficult. This is not second-guessing what the officers did. It’s simply, and unremarkably, recognizing that facts matter—in fact, facts are all that matter—and we must actually gather some in order to determine if these officers acted unreasonably.

Being an escape hatch for wrongdoing is the side effect of the Supreme Court's continuous alteration of its self-created legal doctrine. But the two recent decisions sent back to the Fifth Circuit by the Supreme Court indicate a course correction by the nation's top court. And it's sending a message to every federal court, even though it's the Fifth Circuit that has been the recipient of its two most recent qualified immunity rejections. The procedural aspects of the doctrine are changing, Willet warns, and the Fifth Circuit's willingness to ignore the pointed rejections doesn't reflect well on it.

These two orders make clear that the Court is earnest about reining in qualified immunity’s severest applications. This doctrinal clarification may not amount to sweeping reexamination, but the upshot is plain: In cases with “particularly egregious facts,” courts must not strain to absolve constitutional violations. Even if the precise fact pattern is novel, there is no need for a prior case exactly on point where the violation is obvious.

[...]

The principle uniting these recent rebukes is that the qualified immunity doctrine does not require judicial blindness. Courts need not be oblivious to the obvious.

If Willett is right -- and every judge voting against a rehearing is wrong -- the Supreme Court will be sending this case back to the Fifth to correct at some point in the future. Allowing this decision to stand makes it that much easier for cops to kill people they're supposed to be saving.

Filed Under: 5th circuit, don willett, qualified immunity

Trump Allegedly Demanded Parler Kick Off His Critics If It Wanted Him On The Platform

from the so-free-speechy dept

There has been a lot of speculation regarding whether or not Donald Trump would set up his own social network or if he'd just join one of the struggling social networks which only seem to exist in order to cater to Trump's most fervent supporters. Parler, obviously, gets a lot of attention and earlier this year there were reports that, while Trump was still President, he had entered into negotiations to take an equity stake in Parler and then embrace the platform as his preferred social network. As we noted back then, "for whatever reasons, the agreement did not materialize."

A new book by Michael Wolff suggests one possible reason. It claims that Trump demanded that Parler had to block Trump's critics from its platform:

One curious point of consideration for the [Trump] family [the morning of January 6th] — prescient of the events that would shortly unfold — was a follow-up to a discussion initiated some months before by aides and family. Trump representatives, working with Trump-family members, had approached Parler, the social network backed by Bob Mercer and his daughter Rebekah, far-right exponents and large Trump contributors. They had floated a proposition that Trump, after he left office, become an active member of Parler, moving much of his social-media activity there from Twitter. In return, Trump would receive 40 percent of Parler’s gross revenues and the service would ban anyone who spoke negatively about him.

Parler was balking only at this last condition.

Of course, this is absolutely hilarious for so many reasons. For years, Trump has been whining about how social media shouldn't be allowed to ban him and his friends, and couched it in (false) claims of supporting "free speech." Yet, here he was apparently making it clear that he not only wanted active content moderation on Parler, but that the moderation had to be directed at anyone who criticized him.

How very free speechy of him.

Of course, if Parler decided it did want to do this, it could. The 1st Amendment would protect such a decision, and with it, Section 230 would protect it from being sued for such decisions.

I do wonder if this was some kind of reaction to the Knight Institute case that established that, while he was President, Trump couldn't block followers from accounts he used for conducting official Presidential business. You could see how he (and his associates) might think that a neat workaround to this 1st Amendment conundrum would be an agreement to have the platform do the blocking instead (of course, if Trump were still President, that would present another set of 1st Amendment issues, but thankfully we don't have to deal with those now).

I am, however, quite excited to see what the crew of Trump-loving folks who show up in our comments think about this. After all, they regularly insist that they really just want social media companies to never ban anyone.

Filed Under: banning critics, content moderation, donald trump, ideological bias, section 230, social media
Companies: parler

Denmark's Media Companies Form 'Copyright Collective' To Force Google And Facebook To Pay More For Sending Them Traffic

from the still-a-bad-idea dept

One of the most outrageous ideas dreamt up by traditional media companies is that Internet companies like Google and Facebook should pay for the privilege of sending huge amounts of traffic to their sites. This "snippet tax", also known as the "link tax", was unfortunately enshrined in the EU Copyright Directive in 2019. More recently, Australia has brought in its own link tax, the News Media Bargaining Code, that is even worse than the EU approach.

The move from explicitly targeting snippets to forcing Internet companies to negotiate with the media is significant. It's a recognition that Google and Facebook could avoid paying the link tax if they stopped displaying snippets from media companies. The latter obviously don't want that, since they know it would cause a precipitous drop in the number of people visiting their titles. Instead they want Internet companies to pay up -- just "because". Media companies in Denmark have decided to do this as a group, reported here by the Financial Times (paywall):

Denmark's media industry is pioneering a new bargaining tactic with Google and Facebook over payments for news, with newspapers, broadcasters and internet start-ups joining forces to negotiate with the tech groups as a copyright collective.

Almost 30 Danish media companies will meet on Friday for their first general assembly as a collective bargaining organisation in a move they hope can provide inspiration for other countries in Europe and beyond.

Anders Krab-Johansen, chief executive of newspaper group Berlingske Media and head of the informal network behind the alliance, told the FT that the idea was to stop Google and Facebook negotiating a few deals that set the benchmark for the others. He hopes that the new "copyright collective" will have better luck squeezing more money out of Internet companies.

Changing the format of the negotiations doesn't hide the fact that this is still traditional media companies demanding to be paid for their own failure to innovate and move online quickly enough. It was a bad idea when it was framed as a link tax, and it's a bad idea now it's in the form of collective bargaining.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: ancillary copyright, bargaining code, competition, denmark, journalism, link tax
Companies: facebook, google

Daily Deal: The JavaScript DOM Game Developer Bundle

from the good-deals-on-cool-stuff dept

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Robert F. Kennedy Jr. Ridiculous Lawsuit Against Facebook Gets Tossed Out Of Court

from the it's-not-rico-or-state-action-or-trademark-infringement dept

As you may recall, last summer we wrote about what we referred to as an "insanely stupid" lawsuit that Robert F. Kennedy had filed against Facebook on behalf of his wacky anti-vax organization "Children's Health Defense" (CHD). The issue, of course, is that Facebook blocked CHD from posting the usual conspiracy theories and medical disinformation that RFK Jr. has been known to spread. But the case tried out some "new" theories on why such moderation was against the law: specifically, it argued that Section 230 turned websites into state actors by "privatizing" censorship and also that because Rep. Adam Schiff had sent a letter to Facebook asking it to crack down on disinformation on vaccines, that this also made them a state actor.

A few months later, disgraced (and suspended) Yale law professor Jed Rubenfeld published a Wall St. Journal op-ed pushing the same dopey theory about 230 making private companies state actors. So it wasn't all that surprising when it came time for a hearing on RFK's dopey case, Rubenfeld showed up in court to push the idea on behalf of Children's Health Defense.

It seems that the legal argument went over about as well as we expected: the court has dismissed the case. The dismissal of the case goes deep on a variety of arguments -- not all of which we need to dig into here, but suffice it to say, Facebook (and Mark Zuckerberg) are not state actors. First, the fact that Facebook has "worked with" the CDC to gather information does not, in fact, make it a state actor:

... general statements by the CDC and Zuckerberg about “working together” to reduce the spread of health or vaccine misinformation, or to promote universal vaccination do not show that the government was a “joint participant in the challenged activity,” specifically the decision to put the warning label on CHD’s Facebook page, the fact-checks, and Facebook’s “demonetization” and “shadow-banning” of CHD’s content and page. For example, one of the allegations CHD relies upon is contained in Paragraph 52 of the SAC, which alleges, “Zuckerberg has stated publicly that Facebook is working with both the CDC and the WHO: ‘We work with the [Centers for Disease Control and Prevention] and we work with [the World Health Organization] and trusted health organizations to remove clear misinformation about health-related issues that could cause an imminent risk of harm.’”.... This statement (and similar general statements by Zuckerberg, Facebook, the CDC, or other entities within the federal government about “working to remove misinformation”) does not support the inference that Facebook (or Zuckerberg) worked in concert with the CDC to censor CHD’s speech, retaliate against CHD, or otherwise violate CHD’s constitutional rights.

Schiff's letter also fails to magically turn Facebook into a state actor:

Relying on Congressman Schiff’s February 2019 letter to Zuckerberg, CHD contends that Congressman Schiff “provided a substantive standard – deference to CDC/WHO pronouncements conclusively presumed to be ‘authoritative’ – by which Facebook should identify and censor vaccine ‘misinformation’ on its platform.” SAC ¶ 61. However, nowhere in the letter does Rep. Schiff direct Facebook to adopt any specific standard to follow when it determines what speech constitutes vaccine misinformation or whether particular posts are false or misleading. Instead, Rep. Schiff’s letter expressed his concern about the existence of “medically inaccurate information about vaccines” on Facebook and other social media platforms, and he asked Facebook for information about whether content that “provides medically inaccurate information about vaccines” violates Facebook’s terms of service and what actions Facebook “currently take[s] to address misinformation related to vaccines on your platforms” and whether Facebook was “considering or taking additional actions?” .... None of the general statements or questions in Representative Schiff’s letter can be interpreted as providing a specific standard of decision that mandated the particular actions that Facebook took with regard to CHD’s Facebook page. ... Indeed, the Court notes that the SAC alleges that Facebook began censoring its speech starting on January 15, 2019, which was prior to Rep. Schiff’s letter

And just because Facebook relies on the CDC to figure out what might be mis- or dis-info, doesn't mean that Facebook magically is a state actor either. It just means that Facebook, of its own free will, relies on what it believes is a credible source of information regarding health information.

Nor does the fact that Facebook directs users to the CDC website for information about vaccines mean that the CDC has supplied the “standard of decision” for Facebook’s regulation of content on its platform. Similarly, simply alleging that Facebook and the CDC are “working together” or “partnering” to curb the spread of “vaccine misinformation” does not allege that the specific acts challenged in this lawsuit were made pursuant to a CDC policy. Instead, what CHD has plausibly alleged is that Facebook created its own algorithms and standards for detecting “vaccine misinformation,” and that in doing so, Facebook may have relied on CDC information about vaccines to determine what information is “misinformation.” That is not enough to show that Facebook’s actions were “compelled” by any particular CDC “standard of decision.”

The Rubenfeld-style argument that 230 magically makes Facebook a state actor falls flat on its face. CHD relied on Skinner v. Railway Labor Executives Association, a case that involved railroad regulations that forced private railroad companies to administer blood and urine tests to employees involved in accidents. The "forced" part is kind of key here, as nothing in 230 forces anything. And, unlike CHD's lawyers, the court actually understood that:

Skinner does not aid CHD. “Unlike the regulations in Skinner, Section 230 does not require private entities to do anything, nor does it give the government a right to supervise or obtain information about private activity.” Divino Grp. LLC v. Google LLC, No. 19-CV-04749-VKD, 2021 WL 51715, at *6 (N.D. Cal. Jan. 6, 2021). In Divino Group, the plaintiffs asserted that the “the availability of protections under Section 230 of the CDA amounts to government endorsement of defendants’ alleged discrimination,” and thus that YouTube should be considered a state actor. Judge DeMarchi rejected that contention, stating, “nothing about Section 230 is coercive” and “Section 230 reflects a deliberate absence of government involvement in regulating online speech: ‘Section 230 was enacted, in part, to maintain the robust nature of Internet communication, and accordingly, to keep government interference in the medium to a minimum.’” Id. (quoting Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003)); see also 47 U.S.C. § 230(b)(2) (“It is the policy of the United States . . . to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”). The court held, “[a]t most, Section 230 provides protection from civil liability for interactive computer service providers who elect to host information provided by another content provider, or who in good faith act to restrict materials that the provider or user considers ‘obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable,’ regardless of whether that material is constitutionally protected.” Id. at *7 (quoting 47 U.S.C. § 230(c)(2)(A)). The Court agrees with Judge DeMarchi’s analysis and concludes that the immunity provided by Section 230 does not provide sufficient “encouragement” to convert Facebook’s private acts into state action.

There was also an equally silly trademark claim (Prager U tried this nonsense in its failed case against YouTube). To make this work, CHD argued that Facebook was a "commercial competitor" to itself (what?!?) and that it's was "promoting competitive products" in pushing people away from CHD's anti-vax nonsense and towards actual scientific medical information. The court is not buying it.

However, the warning label and fact-checks are not disparaging CHD’s “goods or services,” nor are they promoting the “goods or services” of Facebook, the CDC, or the fact-checking organizations such as Poynter. In addition, the warning label and fact-checks do not encourage Facebook users to donate to the CDC, the fact-checking organizations, or any other organization. Instead, the warning label informs visitors to CHD’s Facebook page that they can visit the CDC website to obtain “reliable up-to-date information” about vaccines, and the fact-checks identify that a post has been fact-checked, with a link to an explanation of why the post/article has been identified as false or misleading. For example, the Poynter fact-check identified in the SAC consisted of an explanation of why the title of an article written by third party Collective Evolution and posted to CHD’s Facebook page was “false.” Thus, all of the alleged misrepresentations – the warning label and the fact-checks – are simply providing information, albeit information with which CHD disagrees.

Indeed, CHD expressly equates “goods” and “services” with information: CHD argues, “In particular, false fact-check labels expressly tout Poynter’s putatively superior information, thus competing with CHD for donation revenue by actively ‘promoting’ their competing ‘products and services.’” CHDs Opp’n to Poynter’s Mtn. at 17 (emphasis added). Under CHD’s expansive and novel theory of false advertising, any Facebook warning label identifying an alternative source of information and any fact-check with an explanation would constitute false advertising under the Lanham Act because of an injury to “messaging.”

The court calls out that this "novel" legal theory of CHD's is so novel that it can't cite any precedent to support it:

Unsurprisingly, CHD does not cite any authority for the proposition that its “messaging” constitutes “goods” or “services” for purposes of the Lanham Act. Nor does CHD cite any support for its assertion that a defendant can be held liable under the Lanham Act based on speech that is untethered to the sale of goods or services. To the contrary, courts have held that “[t]he mere fact that the parties may compete in the marketplace of ideas is not sufficient to invoke the Lanham Act.” Farah v. Esquire Mag., 736 F.3d 528, 541 (D.C. Cir. 2013) (emphasis in original). In Farah, the D.C. Circuit dismissed a Lanham Act claim brought by a book publisher based on a satirical article posted on Esquire’s politics blog. The court noted that “Farah and Corsi do not allege that Esquire is selling or promoting a competing book. Instead, they assert that ‘generally’ Esquire is their competitor, and maintain that they too ‘write frequently about the birth certificate and ‘natural born citizen’ issues,’ and that ‘readers frequently [] read publications that contain ‘points’ and ‘counterpoints.’” Id. The court held these allegations were insufficient to state a claim because they did not involve commercial speech actionable under the Lanham Act. Id.; see also Bosley, 403 F.3d at 679 (holding there was no liability under the Lanham Act where an unsatisfied hair transplant customer used Bosley’s marks for criticism because the customer’s “use of the Bosley mark [was] not in connection with a sale of goods or services—it [was] in connection with the expression of his opinion about Bosley’s goods and services.”); Edward Lewis Tobinick, MD v. Novella, 848 F.3d 935, 950-52 (11th Cir. 2017) (holding author’s blog posts, which contained allegedly false and defamatory statements about physician’s medical practice, did not constitute commercial speech subject to the Lanham Act where posts did not propose commercial transactions and where stated purpose of the blog was to provide objective analysis of questionable or controversial medical claims); Utah Lighthouse Ministry v. Found. for Apologetic Info. & Research, 527 F.3d 1045, 1054 (10th Cir. 2008) (dismissing Lanham Act claims against the creators of a parody website that criticized religious bookstore’s views because “[u]nless there is a competing good or service labeled or associated with the plaintiff’s trademark, the concerns of the Lanham Act are not invoked.”)

Also, if you remember my post about the original lawsuit, you'll remember that there's a Popehat's Favorite RICO claim included. Anyway, the judge here does the judicial equivalent of Ken White's "IT'S NOT RICO, DAMMIT."

The Court concludes that CHD’s allegations of wire fraud – both those actually plead in the SAC and those unpled but asserted in CHD’s opposition briefs – do not constitute wire fraud because CHD has not alleged any facts showing that defendants engaged in a fraudulent scheme to obtain money or property from Facebook visitors to CHD’s page (or anyone else, including CHD) Assuming arguendo that the various alleged misrepresentations, omissions and acts could constitute a fraudulent “scheme,” neither the SAC nor CHD’s oppositions asserts that any Facebook users actually donated to any other organization, much less donated to another organization because they were deceived by defendants’ scheme. Instead, CHD advances a speculative theory that defendants engaged in wire fraud by deceiving visitors to CHD’s Facebook page through the “false” fact-check labels, diverting those visitors to the websites of other organizations, and that those individuals, once diverted, may have donated to CHD’s competitors as a result of defendants’ deception. CHD’s theory of wire fraud is unsupported by any factual allegations that “defendant[s] used the . . . wires to obtain money or property from the plaintiff or a non-party.” Sugarman, 2020 WL 633596, at *3. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

The court clearly is not buying the argument's RFK Jr cooked up:

The cases upon which CHD relies are inapposite and unavailing. CHD argues that a person could still be guilty of wire fraud even if the money fraudulently obtained went to “third parties” or “associates.” See United States v. Sorich, 523 F.3d 702, 709 (7th Cir. 2008) (holding that the “private gain” criterion of “honest services mail fraud” “simply mean[s] illegitimate gain,” which does not necessarily have to go to defendant, but may instead go to another party); United States v. Spano, 421 F.3d 599, 603 (7th Cir. 2005) (holding that “[a] participant in a scheme to defraud is guilty [of honest services mail fraud] even if he is an altruist and all the benefits of the fraud accrue to other participants”); United States v. Rezko, No. 05 CR 691, 2007 WL 2904014, at *5 (N.D. Ill. Oct. 2, 2007) (rejecting the defendant’s argument that indictment for mail and wire fraud was insufficient because it did not allege defendant personally gained where indictment alleged defendant’s associates benefitted from fraud). However, CHD has not alleged any facts to establish that defendants, their associates, or any third party obtained money or property from deceived Facebook users or from CHD.

IT'S NOT RICO, DAMMIT.

Then the court responds to CHD's desire to pile on more claims and more evidence, including (I kid you not), wanting to submit evidence from Project Veritas, that bastion of ethical reporting techniques. The court points out that none of the additional information CHD wants to submit would cure the fundamental problem: Facebook gets to decide how to moderate its own damn site and it's not the government.

As relevant to the Bivens claim against Zuckerberg, none of the proposed new allegations show that Zuckerberg was personally involved in any decisions regarding CHD’s Facebook page. Nor do any of the supplemental allegations show any joint action with the federal government with regard to CHD’s Facebook page. Instead, some of the new allegations mention Robert F. Kennedy, Jr.’s Instagram account, but Mr. Kennedy is not a plaintiff in this litigation. E-mails between Zuckerberg and Dr. Fauci about a COVID information “hub” on Facebook do not relate to any actions taken regarding CHD’s Facebook page. The allegations about other members of Congress making statements about the need for social media companies to remove harmful or dangerous content from their platforms, including “vaccine misinformation,” or about the possibility of legislation to remove Section 230 immunity are too general to support a claim of governmental coercion, as there are no allegations that any public official pressured Facebook to take any specific actions regarding CHD’s page.

Similarly, none of the proposed supplemental allegations would enable CHD to state claims under the Lanham Act or RICO. The supplemental allegations do not show that CHD has suffered an injury within the Lanham Act’s “zone of interests” or that defendants have engaged in commercial speech actionable under that statute. Nor do any of the proposed supplemental allegations establish the elements of wire fraud as is necessary for the RICO claim.

Thus, even if it were true that Facebook “embarked on a campaign to block speech and information according to a COVID ‘vaccine hesitancy’ algorithm regardless of the truth or falsity of that speech,” CHD’s Mtn. to Further Supplement at 2, those allegations do not address the necessary elements of any of CHD’s causes of action.

CHD also gets a bit of a benchslap in response to its demands to be able to go on fishing expeditions through Mark Zuckerberg's communications using (again, I kid you not) the infamous All Writs Act to do so:

CHD argues that its allegations are sufficient at the pleadings stage, and that it should be permitted to engage in discovery to explore issues such as Zuckerberg’s personal involvement, government contact with Facebook, and whether Facebook users were deceived by the warning label and fact-checks... Similarly, invoking the All Writs Act, CHD asserts that this is an “extraordinary” situation where the Court should lift the stay on discovery and order Facebook to produce unredacted emails between Zuckerberg and Dr. Fauci about Zuckerberg’s “offer” to determine if there is any factual support for CHD’s allegations. However, that is not how federal litigation operates. A plaintiff must plausibly allege a claim at the pleadings stage in order for the case to proceed

And thus, the case is dismissed without leave to amend. There is still one tiny part of the case that kinda sorta lives on -- which is that Science Feedback, a French company that Facebook employs to do some fact-checking, was named as a defendant, but never served. The case against it is also dismissed, but without prejudice, so in theory CHD could try to reinstate that part of the case, but that seems unlikely to (1) work or (2) achieve anything even remotely useful.

Filed Under: 1st amendment, adam schiff, bivens claim, content moderation, jed rubenfeld, rico, robert f. kennedy jr., section 230, state actors, vaccinations
Companies: children's health defense, facebook

Wireless Carrier Injects Ads Into Two-Factor Authentication Texts

from the deeper-down-the-rabbit-hole dept

Not only are countless systems and services not secure, security itself often isn't treated with the respect it deserves. And tools that are supposed to protect you from malicious actors are often monetized in self-serving ways. Like that time Facebook advertised a "privacy protecting VPN" that was effectively just spyware used to track Facebook users when they weren't on Zuckerberg's platform. Or that time Twitter was hit with a $250 million fine after it chose to use the phone numbers provided by users for two-factor authentication for marketing purposes (something Facebook was also busted for).

SMS verification ads themselves are also now being exploited as a marketing opportunity. Developer Chris Lacy was recently taken aback after an SMS two-factor authentication code from Google was injected with an SMS ad:

Google confirmed to 9to5Google they didn't inject the ads, and that this was done by Lacy's wireless carrier (which he refused to reveal for privacy purposes). I've never seen a wireless carrier attempt this, and my guess is that (assuming he's in the States) this isn't one of the major three (AT&T, T-Mobile, and Sprint). It's most likely a smaller prepaid operator which, even in the wake of a more feckless FCC, faces some notable fines should the behavior get widespread attention. Both Google and Lacy say they're working with the anonymous carrier in question.

Needless to say, security experts like Kenn White weren't particularly impressed:

Ironically the ad was for VPN services, which themselves promise layers of security and privacy that often don't exist. Sent over an SMS system that security researchers are increasingly warning isn't secure enough for two-factor authentication or much of anything else. We live in an era where we prioritize monetization, but pay empty lip service to security and privacy. What could possibly go wrong in a climate like that?

Filed Under: 2fa, ad injection, security, sms, two factor authentication

Appeals Court Reverses Earlier Decision, Says Baltimore's Aerial Surveillance Program Is Unconstitutional

from the on-the-other-hand,-this-does-look-constitutionally-sketchy dept

After two court decisions declaring the Baltimore Police Department's Persistent Surveillance Systems-provided aerial surveillance system wasn't actually persistent surveillance, the en banc Fourth Circuit Appeals Court has reversed itself, finding that the system capable of capturing the movements of people and vehicles over an area of 32-square-miles violates the Fourth Amendment.

The 192-million megapixel camera system flew over the city for up to 12 hours a day, only shutting down when darkness or weather rendered the cameras useless. This footage was retained by the PD, which could review the footage to trace movements to and from crime scenes. The resolution meant people and vehicles were little more than unidentifiable pixels, but this information -- combined with a plethora of ground-based surveillance equipment -- made it possible to identify suspects and other persons of interest.

The AIR [Aerial Investigation Research] program was challenged by the ACLU, which cited the Supreme Court's Carpenter decision in its request for an injunction. The federal court said the surveillance wasn't persistent and its built-in limitations prevented it from tracking people's movements for days at a time. As such, AIR's surveillance was unlike the location tracking in the Carpenter decision, which involved the use of cell site location information obtained from cell service providers.

The Fourth Circuit Appeals Court reached pretty much the same conclusion seven months later. Despite covering a vast area for up to 12 hours a day, the court felt the surveillance was far from persistent. It also seemed to feel the surveillance was a means justified by the ends, citing the Baltimore PD's inability to solve more than a third of the city's murders over the past several years.

The court agreed to perform an en banc review of its November decision and has, somewhat surprisingly, declared this form of surveillance a violation of the Fourth Amendment. And it makes no difference that the PD has dumped the program. The ruling [PDF] serves to prevent the PD from trying it again the next time it runs out of better ideas.

Even though the program has ended, the PD has retained some of what was collected during its run. It's still quite a bit of footage and data.

Rather than store entire days’ worth of data, they elected to retain images from 15 minutes before and after the first and last “track point” for a case, and only within a quarter mile of any track point. They believed this data was the “minimum amount” necessary to support PSS’s reports and “to support the prosecution and the defense teams” in the 200 cases aided by the AIR program, including 150 open investigations. The deletion “result[ed] in a total retained imagery data of 14.2% of the captured imagery data.” Id. In raw numbers, that is 264.82 hours of coverage, comprised of 953,337 cropped images. Id. In addition, “[t]he 200 investigation briefings and other ground-based videos” generated by the AIR program “have already been uploaded to BPD’s Evidence.com.”

The city thought this deletion made everything ok. It was no longer untargeted surveillance of a 32 square mile area but rather targeted surveillance of criminal suspects. That's the wrong way of looking at this, the court says. The PD wouldn't have this stockpile of targeted surveillance if it hadn't engaged in broad surveillance first.

Defendants also stress that BPD has deleted “all but 14.2 percent” of AIR images. But 14.2 percent of all the data collected—millions of photographs documenting thousands of hours of public movements over six months—is a significant quantity of information. Indeed, the preserved 14.2 percent is the needle in the proverbial haystack that the AIR program was designed to discover. Only after recording movements across Baltimore for twelve hours per day could BPD zero in on specific dates and locations related to its investigations and then delete the excess. And BPD still has the briefings and reports, which feature AIR images and tracked movements, information and images from other BPD systems, and insights from PSS’s analysis. Even after the bulk deletion, Plaintiffs have a concrete interest in an injunction barring BPD from accessing what remains, “however small” the interest may be.

Then the court says the lower court failed to comprehend the program's impact on residents' privacy.

Plaintiffs argued the AIR program violates Carpenter. The district court rejected the analogy, relying on precedents that approved warrantless pole cameras and flyover photography, and distinguishing CSLI as “a far more intrusive, efficient, and reliable method of tracking a person’s whereabouts.” The district court’s conclusion arose from its read of the facts: “the AIR pilot program has limited location-tracking abilities” because it “will only depict individuals as miniscule dots moving about a city landscape”; the planes “will not fly at night and cannot capture images in inclement weather”; and “gaps in the data will prohibit the tracking of individuals over the course of multiple days.” From that premise, it believed the AIR program could not expose the “privacies of life.”

The district court misapprehended the AIR program’s capabilities.

This is long-term tracking of people's movements, even with periodic interruptions due to nightfall or inclement weather.

Because the data is retained for 45 days—at least—it is a “detailed, encyclopedic,” record of where everyone came and went within the city during daylight hours over the prior month-and-a-half. Law enforcement can “travel back in time” to observe a target’s movements, forwards and backwards. Without technology, police can attempt to tail suspects, but AIR data is more like “attach[ing] an ankle monitor” to every person in the city. “Whoever the suspect turns out to be,” they have “effectively been tailed” for the prior six weeks. (“[P]olice need not even know in advance whether they want to follow a particular individual, or when.”). Thus, the “retrospective quality of the data” enables police to “retrace a person’s whereabouts,” granting access to otherwise “unknowable” information.

[...]

[T]he program enables photographic, retrospective location tracking in multi-hour blocks, often over consecutive days, with a month and a half of daytimes for analysts to work with. That is enough to yield “a wealth of detail,” greater than the sum of the individual trips.

The fact that the surveillance ended at night doesn't matter. Most surveillance happened during the day and most activities people engage in happened during the time periods the surveillance was occurring

AIR data is a photographic record of movements, surpassing the precision even of GPS data and CSLI, which record variable location points from which movements can be reconstructed. And while the coverage is not 24/7, most people do most of their moving during the daytime, not overnight. Likewise, many people start and end most days at home, following a relatively habitual pattern in between. These habits, analyzed with other available information, will often be enough for law enforcement to deduce the people behind the pixels.

As for the claims the PD never engaged in persistent surveillance with this system, the record says otherwise. The system may deliver unidentifiable pixels in its raw form, but the PD still found it useful enough to perform aerial stakeouts.

The Policing Project reported that one AIR investigation “monitor[ed] the home of a suspect’s mother over the course of two days and track[ed] the individuals who came and went.” Policing Project Br. App. at 16. And an AIR report “detail[ed] a vehicle’s movements over the course of three days, listing eleven locations at which the vehicle stopped, and noting the interactions the driver had with other individuals.”

The court says the surveillance planes can still fly if the city wants to try that approach again. But they'll need warrants to do it.

The AIR program records the movements of a city. With analysis, it can reveal where individuals come and go over an extended period. Because the AIR program enables police to deduce from the whole of individuals’ movements, we hold that accessing its data is a search, and its warrantless operation violates the Fourth Amendment.

There are several concurrences and a dissent that is criticized heavily by the concurring judges. The most stinging take on the "ends justifies the means" posturing of the dissent is delivered by Chief Judge Roger Gregory:

The dissent faults the majority for making “[n]o mention whatsoever” of Baltimore’s high murder rate. Because the dissent would not enjoin a police surveillance system, it purports to champion “our dispossessed communities” and “the most vulnerable among us.” It suggests the majority, by contrast, “contribute[s] to the continuation” of violence and “leaves only hopelessness” for “the good people of Baltimore.”

This critique depends upon a certain premise: Policing ameliorates violence, and restraining police authority exacerbates it. As surely as water is wet, as where there is smoke there is fire, the dissent takes for granted that policing is the antidote to killing. Thus, the dissent repeatedly evokes the grief and trauma of gun deaths only in the name of a familiar cause: police and prisons. Of course, “it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” Abraham Maslow, The Psychology of Science: A Reconnaissance, 15–16 (1966). But many Baltimoreans know these institutions all too well as the only response to violence.

Just because there's criminal activity doesn't mean citizens want fewer rights, especially those in neighborhoods where violent crime is most prevalent. And the Fourth Circuit Appeals Court shouldn't assume fighting crime is a higher calling than protecting the rights of Americans.

Wherever they call home—from East Baltimore to West Baltimore, from Sandtown to Roland Park, from Cherry Hill to Locust Point— Baltimoreans need not sacrifice their constitutional rights to obtain equal governmental protection.

Even though Baltimore's aerial surveillance program is dead (possibly just for the moment), its legacy lives on: more precedent saying persistent tracking of people's movements is unconstitutional.

Filed Under: 4th amendment, 4th circuit, aerial surveillance, baltimore, baltimore police department
Companies: persistent surveillance systems

As Expected: Judge Grants Injunction Blocking Florida's Unconstitutional Social Media Law

from the boom-goes-the-dynamite dept

I'm sorry, but those of you looking forward to riding the Friend Feed Flume at Zuckland or the Search Engine Shuffle at GooglePark are probably out of luck. Florida's new social media law (and its theme park owner exemption) is not going to become law.

We've written a few times about Florida's blatantly corrupt and unconstitutional social media content moderation law -- complete with its special carveout for Disney*. The legal challenge to the bill had a hearing in court on Monday, and as we expected, Florida's arguments in favor of the bill were not well received. I listened to the entire hearing and, to put it mildly, the judge was not impressed by Florida's arguments. At one point, he literally asked the lawyer defending the bill if he had ever come across a more poorly drafted piece of legislation. That's generally not a good sign.

And, now, with just hours to go until the law was supposed to go into effect, the judge has granted the preliminary injunction blocking the bill, and the ruling makes it pretty clear that this bill is not going to survive. Of course, Florida will likely appeal the ruling, and it'll be up to the Appeals Court to go into more depth. During the hearing, the judge, Robert Hinkle, more or less admitted this would be the case, and said that his ruling wouldn't go that deep, because what the Appeals Court says will be more important in the long run. Even so, the ruling is worth exploring, as it smashes the law to bits in a variety of ways.

The State of Florida has adopted legislation that imposes sweeping requirements on some but not all social-media providers. The legislation applies only to large providers, not otherwise-identical but smaller providers, and explicitly exempts providers under common ownership with any large Florida theme park. The legislation compels providers to host speech that violates their standards—speech they otherwise would not host—and forbids providers from speaking as they otherwise would. The Governor’s signing statement and numerous remarks of legislators show rather clearly that the legislation is viewpoint-based. And parts contravene a federal statute. This order preliminarily enjoins enforcement of the parts of the legislation that are preempted or violate the First Amendment.

So, let's start with ye olde 1st Amendment. As we predicted, it's pretty clear that this law violates it. The judge agrees. For all the talk of how the law supposedly "protects" the 1st Amendment, the judge recognized it absolutely does the opposite. I've tried to highlight the key bits if you want to skim:

First, the State has asserted it is on the side of the First Amendment; the plaintiffs are not. It is perhaps a nice sound bite. But the assertion is wholly at odds with accepted constitutional principles. The First Amendment says “Congress” shall make no law abridging the freedom of speech or of the press. The Fourteenth Amendment extended this prohibition to state and local governments. The First Amendment does not restrict the rights of private entities not performing traditional, exclusive public functions. See, e.g., Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). So whatever else may be said of the providers’ actions, they do not violate the First Amendment.

Second, the First Amendment applies to speech over the internet, just as it applies to more traditional forms of communication. See, e.g., Reno v. ACLU, 521 U.S. 844, 870 (1997) (stating that prior cases, including those allowing greater regulation of broadcast media, “provide no basis for qualifying the level of First Amendment scrutiny that should be applied” to the internet).

Third, state authority to regulate speech has not increased even if, as Florida argued nearly 50 years ago and is again arguing today, one or a few powerful entities have gained a monopoly in the marketplace of ideas, reducing the means available to candidates or other individuals to communicate on matters of public interest. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the Court rejected just such an argument, striking down a Florida statute requiring a newspaper to print a candidate’s reply to the newspaper’s unfavorable assertions. A similar argument about undue concentration of power was commonplace as the social-media restrictions now at issue advanced through the Florida Legislature. But here, as in Tornillo, the argument is wrong on the law; the concentration of market power among large social-media providers does not change the governing First Amendment principles. And the argument is also wrong on the facts. Whatever might be said of the largest providers’ monopolistic conduct, the internet provides a greater opportunity for individuals to publish their views—and for candidates to communicate directly with voters—than existed before the internet arrived. To its credit, the State does not assert that the dominance of large providers renders the First Amendment inapplicable.

The court then explores various precedential cases regarding the ability of the government to compel a private company to host speech and finds that the arguments of Florida are lacking. Since there are speech issues at stake, the law must be subject to strict scrutiny -- and as such it fails the 1st Amendment test. Indeed, public statements made by Florida's governor Ron DeSantis, grandstanding about this bill, are part of what helped to sink it (it would have been sunk anyway, but it's amusing to see his public statements used by the judge here):

The plaintiffs assert, too, with substantial factual support, that the actual motivation for this legislation was hostility to the social media platforms’ perceived liberal viewpoint. Thus, for example, the Governor’s signing statement quoted the bill’s sponsor in the House of Representatives: “Day in and day out, our freedom of speech as conservatives is under attack by the ‘big tech’ oligarchs in Silicon Valley. But in Florida, we said this egregious example of biased silencing will not be tolerated.” Similarly, in another passage quoted by the Governor, the Lieutenant Governor said, “What we’ve been seeing across the U.S. is an effort to silence, intimidate, and wipe out dissenting voices by the leftist media and big corporations. . . . Thankfully in Florida we have a Governor that fights against big tech oligarchs that contrive, manipulate, and censor if you voice views that run contrary to their radical leftist narrative.” This viewpoint-based motivation, without more, subjects the legislation to strict scrutiny, root and branch. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) (“The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”) (citing Perry Ed. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)).

Moreover, these statements are consistent with the statutory definition of “social media platform,” which extends only to, and thus makes the legislation applicable only to, large entities—those with $100 million in revenues or 100 million monthly participants. As the Supreme Court has recognized, discrimination between speakers is often a tell for content discrimination. See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010) (“Speech restrictions based on the identity of the speaker are all too often simply a means to control content.”). That is the case here. The state has suggested no other basis for imposing these restrictions only on the largest providers. And even without evidence of an improper motive, the application of these requirements to only a small subset of social-media entities would be sufficient, standing alone, to subject these statutes to strict scrutiny. See, e.g., Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 591 (1983); Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 229 (1987).

And, yeah, the Disney carveout is seen as a tell as well:

Finally, the same is true of the exclusion for social-media providers under common ownership with a large Florida theme park. The State asserted in its brief that the provision could survive intermediate scrutiny, but the proper level of scrutiny is strict, and in any event, when asked at oral argument, the State could suggest no theory under which the exclusion could survive even intermediate scrutiny. The State says this means only that the exclusion fails, but that is at least questionable. Despite the obvious constitutional issue posed by the exclusion, the Legislature adopted it, apparently unwilling to subject favored Florida businesses to the statutes’ onerous regulatory burdens. It is a stretch to say the severability clause allows a court to impose these burdens on the statutorily excluded entities when the Legislature has not passed, and the Governor has not signed, a statute subjecting these entities to these requirements.

The judge then goes even further, by noting that even if you applied intermediate scrutiny (a lower standard) the bill still wouldn't live up to 1st Amendment requirements:

The provisions at issue here do not meet the narrow-tailoring requirement. Indeed, some of the disclosure provisions seem designed not to achieve any governmental interest but to impose the maximum available burden on the social media platforms

The judge also follows up on his comments during the hearing about how poorly drafted the law is to note the many problems in the law for being vague and open to wildly different interpretations, but notes that given the other reasons to block the law, he doesn't need to use the vagueness issue for the injunction.

In the end, the court recognizes that this bill was really all about punishing a few companies, and that's not how the law is supposed to work:

The legislation now at issue was an effort to rein in social-media providers deemed too large and too liberal. Balancing the exchange of ideas among private speakers is not a legitimate governmental interest. And even aside from the actual motivation for this legislation, it is plainly content-based and subject to strict scrutiny. It is also subject to strict scrutiny because it discriminates on its face among otherwise-identical speakers: between social-media providers that do or do not meet the legislation’s size requirements and are or are not under common ownership with a theme park. The legislation does not survive strict scrutiny.

There is also, extremely briefly, a recognition that the law is likely pre-empted by Section 230, basically highlighting that the law clearly violates 230's prohibitions on allowing platforms to moderate as they see fit:

Florida Statutes § 106.072 prohibits a social media platform from deplatforming a candidate for office and imposes substantial fines: $250,000 per day for a statewide office and $25,000 per day for any other office. But deplatforming a candidate restricts access to material the platform plainly considers objectionable within the meaning of 47 U.S.C. § 230(c)(2). If this is done in good faith—as can happen—the Florida provision imposing daily fines is preempted by § 230(e)(3). Good faith, for this purpose, is determined by federal law, not state law. Removing a candidate from a platform based on otherwiselegitimate, generally applicable standards—those applicable to individuals who are not candidates—easily meets the good-faith requirement. Indeed, even a mistaken application of standards may occur in good faith.

The federal statute also preempts the parts of Florida Statutes § 501.2041 that purport to impose liability for other decisions to remove or restrict access to content. See Fla. Stat. § 501.2041(6) (creating a private right of action for damages for violations of § 501.2041(2)(b) and (2)(d)1; id. § 501.2041(2)(b) (requiring a social media platform to apply censorship, deplatforming, and shadow banning standards in a consistent manner); id. § 501.2041(2)(d)1 (prohibiting a social media platform from deplatforming a user or censoring or shadow banning a user’s content without notifying the user); § 501.2041(2) (making any violation of that subsection an unfair or deceptive act or practice within the meaning of § 501.204—and thus providing a private right of action for damages under § 501.211).

Claims based on alleged inconsistency of a platform’s removal of some posts but not others are preempted.

That last line needs to be repeated over and over again for every state considering these kinds of laws.

Anyway, Florida is almost certainly going to waste more taxpayer dollars and appeal this ruling, but it's really difficult to see how the law survives. It was a garbage unconstitutional bill from the very beginning -- a point that many, many people made clear to both Governor DeSantis and the legislators who pushed this bill. But, of course, the goal was never to get this bill into actual law. It was all a big theater production -- to let them pretend to be culture warriors against "the libs" who they claim run social media platforms. It's just unfortunate that they get to throw away taxpayer money on their theatrical grandstanding.

* By the way, if you'd like to see a fun moment in the Florida legislature during the debate over the bill, check out this fairly incredible video of the discussion between Rep. Blaise Ingoglia -- who inserted the Disney carveout -- and Rep. Anna Eskamani who wants to get him on record explaining why. Ingoglia flat out admits that it's to protect Disney, though his argument is so hilariously dumb it's hard to believe it's real. He argues that they need to protect Disney+ reviews (Disney+ doesn't currently have reviews) and that it shouldn't apply to other sites, because Disney creates its own content. This ignores, of course, that the entire bill is about the moderation of 3rd party content (such as, uh, reviews, which are not created by Disney). It's almost as if he doesn't understand what all of this means, and is just making sure to do a favor to Disney, just because.

Filed Under: 1st amendment, content moderation, florida, injunction, section 230, theme parks
Companies: ccia, facebook, google, netchoice, twitter