Senator Blumenthal: Dismissing All Critics Of EARN IT As 'Big Tech Lobbyists' Shows Your Unwillingness To Recognize The Massive Problems In Your Bill

from the obnoxious dept

In the past, whenever Senator Richard Blumenthal has been called out for his many terrible legislative ideas regarding regulating technology and the internet, he has a habit of dismissing all of the concerns by claiming the complaints are only coming from "big tech lobbyists." He did this a few years ago with FOSTA, which has since proven to be exactly the disaster many of us warned Senator Blumenthal about at the time. This time around, he's going straight to the same playbook again, and it's good to see that he's getting some pushback. Nathalie Maréchal, from Ranking Digital Rights has published a great piece over at Tech Policy Press: No, Senator Blumenthal, I am not a Big Tech Lobbyist.

Ranking Digital Rights is about as far from a "big tech lobbyist" as you can find. The organization has been advocating for the FTC to ban targeted advertising, which is basically the key way in which both Google and Facebook make the majority of their money. And yet, it also recognizes the dangers of EARN IT.

The article notes that over 60 human rights groups signed a detailed letter highlighting the many problems of the bill. For Blumenthal to simply dismiss all of those concerns -- put together by respected groups who are in no way "big tech lobbyists" -- shows his pure disdain for facts and unwillingness to put in the effort to understand the very real damage his bill will do should it become law.

It's shameful behavior for a US senator, even if not surprising.

Filed Under: criticism, earn it, encryption, good faith, lobbyists, richard blumenthal

Appeals Court Actually Explores 'Good Faith' Issue In A Section 230 Case (Spoiler Alert: It Still Protects Moderation Choices)

from the because-of-course-it-does dept

Over the last couple years of a near constant flow of mis- and disinformation all about Section 230 of the Communications Decency Act, one element that has popped up a lot (including in our comments) especially among angry Trumpists, is that because Section (c)(2)(A) of the law has a "good faith" qualifier, it means that websites that moderate need to show they did so with "good faith." Many seem to (falsely) assume that this is a big gotcha, and they can get past the 230 immunity barrier by litigating over whether or not a particular moderation choice was done in "good faith." However, as we've explained, only one small part of the law -- (c)(2)(A) mentions "good faith." It's this part:

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected

However, notably, Section (c)(1) -- the famous "26 words" -- makes no mention of "good faith" and establishes, more broadly, that no website or user of a website should be held liable for someone else's content. Over the past 25 years, nearly all of the court decisions regarding content moderation have relied on Section (c)(1)'s broad immunity, noting that even moderation (take down) decisions, if litigated, would require holding a website/user liable for the speech of a third party. Therefore, the examination of "good faith" almost never comes up. Separately, there's a fairly strong argument that courts determining whether or not a moderation decision was done in "good faith" would represent courts interfering with an editorial decision making process -- and thus would raise serious 1st Amendment questions.

There is one significant court case that did look at (c)(2) -- the case involving Malwarebytes decision to name Enigma Software as malware was not protected by 230. In that case, the 9th Circuit said that because it's possible that Malwarebytes called Enigma malware for anti-competitive reasons, this would not count as "good faith," and thus it wouldn't be protected by 230. Unfortunately, the Supreme Court refused to hear this issue, but that case still lives on and the issue could be revisited otherwise (and, it may eventually show that Malwarebytes also has a 1st Amendment right to express its opinion -- even about a competitor).

A few weeks ago there was another case that got a (c)(2) review, over in the 2nd Circuit. That case, Domen v. Vimeo, involved a more typical content moderation type decision. Eric Goldman summed up the story behind the case in his own post about the ruling:

Vimeo is a video hosting service. Domen is a “former homosexual.” He posted videos to Vimeo that allegedly violated Vimeo’s policy against “the promotion of sexual orientation change efforts” (SOCE). Vimeo notified Domen of the violation and gave him 24 hours to remove the videos or Vimeo would take action. Domen didn’t remove the videos, so Vimeo subsequently deleted Domen’s account. Domen sued Vimeo for violations of California’s Unruh Act, New York’s Sexual Orientation Non-Discrimination Act, and the California Constitution. The lower court dismissed all of the claims.

Domen appealed, and the 2nd Circuit dismissed the case, focusing on Section 230 (c)(2)(A). It is not clear why it didn't just use (c)(1) like every other similar case (it mentions that the lower court used both sections, and that Vimeo asked the court to rule on (c)(1) grounds as well, but it does the (c)(2) analysis anyway). Either way, this opens up an opportunity for an appeals court (and a prominent one like the 2nd Circuit) to explore the whole "good faith" question. The court notes, correctly, that 230 is much in the news these days, but says this one is a fairly easy call. Vimeo has every right to enforce its own terms of service in this manner. In summarizing its decision, the court notes:

However, Appellants’ conclusory allegations of bad faith do not survive the pleadings stage, especially when examined in the context of Section 230(c)(2). Section 230(c)(2) does not require interactive service providers to use a particular method of content restriction, nor does it mandate perfect enforcement of a platform’s content policies. Indeed, the fundamental purpose of Section 230(c)(2) is to provide platforms like Vimeo with the discretion to identify and remove what they consider objectionable content from their platforms without incurring liability for each decision. Therefore, we AFFIRM the judgment of the district court.

This is good framing. It recognizes that plaintiffs can't just yell "bad faith!" even if they can show inconsistent moderation practices. In going into detail, the court says that (c)(2) is also a very broad immunity, giving websites the power to set their own rules and policies for what will be removed. Specifically, they say it grants "significant subjective discretion."

A broad provision, subsection (c)(2) immunizes interactive computer service providers from liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” 47 11 U.S.C § 230(c)(2). Notably, the provision explicitly provides protection for restricting access to content that providers “consider[] . . . objectionable,” even if the material would otherwise be constitutionally protected, granting significant subjective discretion.... Therefore, Vimeo is statutorily entitled to consider SOCE content objectionable and may restrict access to that content as it sees fit.

The court also rejects the plaintiff's argument that Vimeo could have just deleted the individual videos that it claims violated its policies, rather than shutting down his entire account. But, as the court notes, nothing in 230 requires the use of a scalpel when moderating:

Moreover, the statute does not require providers to use any particular form of restriction. Although Appellants take issue with Vimeo’s deletion of Church United’s entire account as opposed to deleting only those videos promoting SOCE, nothing within the statute or related case law suggests that this took Vimeo’s actions outside of the scope of subsection (c)(2) immunity. Indeed, Vimeo warned Church United that removal of the entire account was exactly what might happen if they ignored the warning. Church United received the warning and did not take the videos down or otherwise allay Vimeo’s concerns. Vimeo was entitled to enforce its internal content policy regarding SOCE and delete Church United’s account without incurring liability.

How about the "good faith" requirement? The court says you have got show more than just that Vimeo treated this plaintiff's videos differently than some others on the platform. It points to the 9th Circuit's Malwarebytes decision (and the Zango case that the 9th Circuit heavily cited in Malwarebytes), and says that even if it followed the same reasoning as that case, this is obviously a very different situation. The only reason that case got over the "good faith" hurdle was because it was deemed possibly anti-competitive. Here? Uh, no, this is standard everyday content moderation:

We also agree with the district court that Appellants’ allegations that Vimeo acted in bad faith are too conclusory to survive a motion to dismiss under Rule 12(b)(6). Appellants’ bases for arguing that Vimeo acted in bad faith are not commensurate with how courts interpret bad faith in this context. Appellants’ cited cases do not satisfy their position. In Zango, Inc. v. Kaspersky Lab, Inc., the Ninth Circuit considered whether the defendant’s software—a filter blocking potentially malicious software from users’ computers—qualified for Section 230 immunity in the same manner as platforms like YouTube or Facebook.... The Ninth Circuit held that it did.... In Enigma Software Group USA, LLC v. Malwarebytes, Inc., the Ninth Circuit limited the scope of Zango, clarifying that Section 230 “immunity . . . does not extend to 3 anticompetitive conduct.”.... There, the court reinstated the plaintiff’s Lanham Act claim, which alleged that the defendant’s firewall program improperly filtered out the plaintiff’s rival firewall program, even though the plaintiff’s program posed no actual security threat to users’ computers.... The plaintiff alleged that the defendant made “false and misleading statements to deceive consumers into choosing [the defendant’s] security software over [the plaintiff’s].” ... Vimeo’s deletion of Appellants’ account was not anti-competitive conduct or self-serving behavior in the name of content regulation. Instead, it was a straightforward consequence of Vimeo’s content policies, which Vimeo communicated to Church United prior to deleting its account.

And, no, just because Domen found other videos on Vimeo that might have also violated its policies, that doesn't mean that he was treated in bad faith. That's not how any of this works.

Appellants argue that bad faith is apparent from the fact that other videos relating to homosexuality exist on Vimeo’s website. In support of this, Appellants point to titles of videos that allegedly remain on Vimeo’s website: “Gay to Straight,” “Homosexuality is NOT ALLOWED in the QURAN,” “The Gay Dad,” and “Happy Pride! LGBTQ Pride Month 2016.”... However, the mere fact that Appellants’ account was deleted while other videos and accounts discussing sexual orientation remain available does not mean that Vimeo’s actions were not taken in good faith. It is unclear from only the titles that these videos or their creators promoted SOCE. Moreover, one purpose of Section 230 is to provide interactive computer services with immunity for removing “some—but not all—offensive material from their websites.” Bennett v. 7 Google, LLC, 882 F.3d 1163, 1166 (D.C. Cir. 2018). Given the massive amount of user-generated content available on interactive platforms, imperfect exercise of content-policing discretion does not, without more, suggest that enforcement of content policies was not done in good faith. See Zeran v. Am. Online, Inc., 129 F.3d 11 327, 331 (4th Cir. 2017) (explaining that “[t]he amount of information communicated via interactive computer services is . . . staggering” and that Congress passed Section 230 expressly to “remove disincentives for the development and utilization of blocking and filtering technologies” ....

In summary:

Appellants chose to ignore Vimeo’s notice of their violation of Vimeo’s content policy, and, as a result, Vimeo deleted their account. By suing Vimeo for this, Appellants run headfirst into the CDA’s immunity provision, which “allows computer service providers to establish standards of decency without risking liability for doing so.”

That seems pretty nice and clear. As Goldman wrote in his analysis of this ruling:

In the short run, Internet services have a lot to celebrate about this ruling. First, the court revitalizes Section 230(c)(2)(A) as a tool in the defense toolkit, which increases the odds of a successful defense. Second, the court accepts that content moderation will never be perfect, so plaintiffs aren’t going to win simply by pointing out examples of imperfect content moderation. Third, the court grants Section 230(c)(2)(A) on a motion to dismiss, emphasizing that it’s an immunity and not just a safe harbor. This ruling isn’t novel, but a clean and decisive statement from the Second Circuit about Section 230(c)(2)(A) applicability to motions to dismiss will surely encourage future courts to do the same. Fourth, though not explicitly addressed, the court held that Section 230(c)(2)(A) preempted claims that the services had violated anti-discrimination laws–a critical issue given that majority communities are weaponizing anti-discrimination laws to perpetuate their majority status.

All very nice! However, Goldman also warns that all of this good stuff may be wiped away soon via many of the various bills to reform or repeal Section 230. He also notes that some of the statements in the opinion could be twisted in a problematic way. For example (as seen in the quotes above), the court repeatedly mentions that Vimeo gave Domen multiple warnings and even told him which policy he was violating specifically. This might lead some to falsely believe that moderation without those factors is outside the bounds of (c)(2)(A). Goldman also fears that this will lead to more litigation exploring the boundaries of (c)(2)(A) and the definition of "good faith" moderation choices -- all of which could have been avoided if the court had just followed the path of many others and dismissed on (c)(1) grounds.

On the whole though, it still seems like a good general ruling and might put to rest some of the myths and nonsense going around about how a bunch of moderation decisions are not done in "good faith" and therefore do not deserve protection.

Filed Under: c2, content moderation, good faith, section 230
Companies: vimeo

Another Anti-Section 230 Bill? Sure, Why Not?

from the another-day,-another-attack-on-free-speech dept

Because there haven't already been enough attempts by Congress this year to attack free speech on the internet, here's another one. Rep. Ted Budd has introduced yet another bill to wipe out Section 230 and undermine free speech online. Of course, he's really just putting his House stamp on the ridiculous and unconstitutional Senate bill released earlier this year by Senators Hawley, Rubio, Loeffler, Cotton and Braun that we took apart at the time. I'm not going to go over all the reasons the bill is ridiculous and unconstitutional. We covered that when it was released in the Senate.

But Budd's "statement" about the bill deserves to be picked apart because it's utter lunacy.

“Recent acts of political censorship by Twitter and Facebook are a disgrace. Big Tech bias has gone too far in suffocating the voices of conservatives across our country. If these companies want to continue to receive legal protection, they should be forced to play by a fair set of rules in good faith. I’m extremely proud to join Sen. Hawley in this fight.”

Everything about this is wrong. Twitter and Facebook are not "censoring." They are moderating. They are saying there is certain speech they don't want to host, and this is their right, just like Fox News or the NY Post get to spew one sided news and the government cannot do anything about it. But they can't demand that other private companies help them promote that nonsense. That's not censorship. It's moderation or discretion. And it's protected by the 1st Amendment. You know, the thing that Rep. Budd swore to protect and uphold.

Imagine if Congress introduced a bill saying that Fox News actually had to be "fair and balanced" and be more positive towards Democrats and Joe Biden. Republicans like Budd would be screaming about how that was an unfair and unconstitutional infringement of Fox News' 1st Amendment rights. And they'd be right. But the desire to ignore all that and compel speech from social media companies just demonstrates that elected officials like Budd are not coming from a place of principled support of the Constitution or free speech. Rather they are pathetic simpletons who think that they can abuse their power to force companies to promote their bullshit.

That's not how it works, and we shouldn't let grifters in Congress get away with pushing such nonsense. Rep. Budd should be ashamed that he's shitting all over the 1st Amendment while pretending to support free speech. His constituents should think deeply about why they've elected someone so willing to sell out the 1st Amendment.

Filed Under: 1st amendment, content moderation, good faith, intermediary liability, josh hawley, section 230, ted budd
Companies: facebook, twitter

Justice Department Releases Its Own Preposterous Recommendations On Updating Section 230

from the guys,-what? dept

Because today wasn't insane enough, just hours after Senator Josh Hawley released his ridiculous bill to flip Section 230 on its head and turn it from a law that protects against frivolous lawsuits into one that would encourage them, the Justice Department has released recommendations for Section 230 reform that appear to have been written by people who haven't the first clue about how content moderation works online.

Professor Mark Lemley sums it up best:

One of the things many have pointed out about the "bipartisan" hatred for Section 230 is that each party hates it for opposite reasons. That is, Republicans are mad that sites are taking down too much content, while Democrats are mad that not enough content is being taken down. And they both (incorrectly) blame Section 230 for "enabling" that situation.

The DOJ's attempt to thread the needle on this is saying that sites should both take down more and less content at the same time. No, seriously. First, the DOJ says that platforms should be liable for lots of content on their platform if they don't magically stop it:

Incentivizing Online Platforms to Address Illicit Content

The first category of recommendations is aimed at incentivizing platforms to address the growing amount of illicit content online, while preserving the core of Section 230’s immunity for defamation claims. These reforms include a carve-out for bad actors who purposefully facilitate or solicit content that violates federal criminal law or are willfully blind to criminal content on their own services. Additionally, the department recommends a case-specific carve out where a platform has actual knowledge that content violated federal criminal law and does not act on it within a reasonable time, or where a platform was provided with a court judgment that the content is unlawful, and does not take appropriate action.

Then, on the flip side, the DOJ wants to make sure that platforms don't take down too much (read: "silence nazis who support President Trump") because [reasons].

Promoting Open Discourse and Greater Transparency

A second category of proposed reforms is intended to clarify the text and revive the original purpose of the statute in order to promote free and open discourse online and encourage greater transparency between platforms and users. One of these recommended reforms is to provide a statutory definition of “good faith” to clarify its original purpose. The new statutory definition would limit immunity for content moderation decisions to those done in accordance with plain and particular terms of service and consistent with public representations. These measures would encourage platforms to be more transparent and accountable to their users.

The specifics of how they want these two things done are utter nonsense. In order to force more taking down of "bad" content, the DOJ literally says that "bad actors" no longer get 230.

Bad Samaritan Carve-Out. First, the Department proposes denying Section 230 immunity to truly bad actors. The title of Section 230’s immunity provision—“Protection for ‘Good Samaritan’ Blocking and Screening of Offensive Material”—makes clear that Section 230 immunity is meant to incentivize and protect responsible online platforms. It therefore makes little sense to immunize from civil liability an online platform that purposefully facilitates or solicits third-party content or activity that would violate federal criminal law.

But what does that even mean? The "facilitates" bit in there is what's problematic -- and that's the same language we've already seen in FOSTA, which has created massive collateral damage and frivolous lawsuits against CRM and mailing list software providers. Does offering up some mailing list software that might be used for criminal activity make you a "bad" actor?

Then there's a further FOSTA-like expansion, carving out exceptions beyond sex trafficking to include "child abuse, terrorism, and cyber-stalking."

Second, the Department proposes exempting from immunity specific categories of claims that address particularly egregious content, including (1) child exploitation and sexual abuse, (2) terrorism, and (3) cyber-stalking. These targeted carve-outs would halt the over-expansion of Section 230 immunity and enable victims to seek civil redress in causes of action far afield from the original purpose of the statute.

Again, as we've seen with FOSTA, this expansion is only being use so far for frivolous cases -- and that would definitely be the case here as well. We've already seen a ton of totally frivolous "let's blame Twitter and Facebook for terrorists" lawsuits, all of which are getting thrown out on 230 grounds. The DOJ's proposed legislation would bring those right back -- allowing people who were killed by terrorists... to sue Twitter. Because, why, now?

Then the DOJ says that the entire setup of 230 should be changed:

Third, the Department supports reforms to make clear that Section 230 immunity does not apply in a specific case where a platform had actual knowledge or notice that the third party content at issue violated federal criminal law or where the platform was provided with a court judgment that content is unlawful in any respect.

That's like the whole point of 230. All this would do is turn 230 into a "notice-and-takedown" statute, because as soon as you received notice of any alleged issue, you'd risk liability if you kept it up. We've already seen how that works in the DMCA context, in which tons and tons of perfectly lawful speech is taken down just to avoid liability. This is a proposal for widespread censorship (which is ironic, given that the DOJ claims part of its goal is to try to encourage less silencing of voices).

On that front, the proposals are equally uninformed.

First, the Department supports replacing the vague catch-all “otherwise objectionable” language in Section 230(c)(2) with “unlawful” and “promotes terrorism.” This reform would focus the broad blanket immunity for content moderation decisions on the core objective of Section 230—to reduce online content harmful to children—while limiting a platform's ability to remove content arbitrarily or in ways inconsistent with its terms or service simply by deeming it “objectionable.”

It's important to note that nearly all of the litigation on Section 230 has focused on (c)(1) and not (c)(2), but whiny conservatives who insist that sites are "censoring" them really hate the "otherwise objectionable" language, because it makes it clear that sites have the right to moderate how they see fit. Wiping that out is bizarre, because it would suddenly exempt things like spam filtering from Section 230.

Second, the Department proposes adding a statutory definition of “good faith,” which would limit immunity for content moderation decisions to those done in accordance with plain and particular terms of service and accompanied by a reasonable explanation, unless such notice would impede law enforcement or risk imminent harm to others. Clarifying the meaning of "good faith" should encourage platforms to be more transparent and accountable to their users, rather than hide behind blanket Section 230 protections.

This is similar to Hawley's proposal, and raises serious 1st Amendment questions. The government cannot and should not be determining whether editorial decisions are made in "good faith."

Then there's the funniest part of the DOJ proposal. Because everyone who understands anything about how content moderation works has pointed out that all of these kinds of changes would create a true "moderator's dilemma" (no liability if you don't look, so you don't want to look, or if you look you feel the need to heavily moderate everything to avoid liability), the DOJ just says "oh yeah, add in something saying there's no moderator's dilemma." Really.

Explicitly Overrule Stratton Oakmont to Avoid Moderator’s Dilemma. Third, the Department proposes clarifying that a platform’s removal of content pursuant to Section 230(c)(2) or consistent with its terms of service does not, on its own, render the platform a publisher or speaker for all other content on its service.

But none of that fixes all of the other parts of the moderator's dilemma created by this very proposal.

Separate from those two major prongs, the proposed reform hits on two other points, both of which are kind of odd. First, it says it would open up civil enforcement actions from the federal government, making them exempt from Section 230 as well. Already, federal criminal law is exempt, but by exempting civil enforcement, it could allow for things like the FTC to go after websites for... something based on user content? It's not entirely clear how that would play out. And then it says that federal antitrust law is not covered by 230, which... seems like an odd thing to call out. I guess the focus here is on whether or not the government could make an antitrust claim on moderation choices (so, for example, if Apple or Google blocked a competitor from being in their app stores). The specifics of such a proposal would matter, so it's not clear how big a deal that might be at a first glance.

All in all, the DOJ proposal is, at the very least, craftier than Hawley's silly proposal. But when looked at together, its attempt to thread the needle of the "too much moderation/not enough moderation" debate is one that will only make things much worse, and not solve any of the actual problems online. But it may be a field day for lawsuits, and maybe that's the point: let's punish Silicon Valley with a ton of lawsuits, just because we can.

Filed Under: bias, content moderation, doj, good faith, intermediary liability, otherwise objectionable, section 230, terrorism

Senator Hawley's Section 230 Reform Even Dumber Than We Expected; Would Launch A Ton Of Vexatious Lawsuits

from the dude,-seriously? dept

So there were rumors about Senator Hawley's bill to reform Section 230 earlier this week, saying that it would remove 230 protections if you used targeted ads. Today, Hawley released the actual plan, which is very different, but even dumber. It would certainly turn the GOP from the party that wanted to push for tort reform and limit frivolous and vexatious lawsuits into the party that encouraged an avalanche of wasteful litigation.

The shortest version of the bill's likely impact is that it would create an army of "content moderation troll" lawyers, because you could sue any platform that you felt removed your content unfairly and get $5,000 plus attorney's fees. With a bit more detail, the bill requires that a platform have clear terms of service and any moderation would have to be tied back to those terms -- which pretty much shows that whoever wrote this pile of shit has no idea how content moderation works, and the fact that you need to keep adjusting the actual content moderation practices, because dishonest people who are trying to abuse your system are always trying to game things to stay "technically" within the "terms" while still wreaking havoc on your platform.

The bill then says that if a platform makes any design or operation decision that is not in "good faith", anyone can sue them for $5k and attorneys' fees. Note that this seems to go beyond just moderation decisions. It includes a platform making design decisions that you dislike. That's... crazy. There's also the question of what is actually meant by "good faith" and all the 1st Amendment issues that raises, because determining what is and is not "good faith" is a straight up editorial decision, and the whole point of the 1st Amendment is that the courts can't jump in to second guess editorial decisions.

To be clear, this law's attempt to expand "good faith" seems to be purposely made in bad faith to simply overwhelm internet platforms with tons of lawsuits.

This bill flips the entire purpose of Section 230. As Jess Miers said, this bill seems to take the immunity from civil suits in the law and turns it into a private right of action for tons of frivolous and vexatious lawsuits.

It is not a serious attempt at reform. It's an unconstitutional pile of crap that seems to serve no other purpose than to allow whiny aggrieved grifters to shake down every platform for their moderation and design choices.

Filed Under: frivolous lawsuits, good faith, intermediary liability, josh hawley, moderation, section 230, trial lawyers

Sixth Circuit Appeals Court Latest To Say It's Cool If The FBI Broke The Law During Its Playpen Investigation

from the deterrents-never-used-will-rarely-exhibit-a-deterrent-effect dept

The seventh Appeals Court to weigh in [PDF] on the FBI's Network Investigative Technique deployed in the Playpen child porn investigation has weighed in. Unfortunately, it makes the Sixth Circuit the seventh appeals court to find the FBI's warrant problematic, but willing to apply the "good faith" band-aid.

The problem with the application of the "good faith exception" is it assumes good faith on behalf of the FBI. There's no reason to believe the FBI acted in good faith, though. While it was in the process of obtaining a single warrant allowing it to search computers all over the world, it was well aware Rule 41 limited searches to the jurisdiction where the warrant was obtained. It knew this because the DOJ was in the process of asking the Supreme Court and Congress to change Rule 41 to remove the jurisdiction limits while it was pursuing this investigation.

The Appeals Court grants good faith anyway, despite this background. It does do us (and the appellant) the favor of discussing good faith in light of the DOJ's simultaneous attempt to codify searches it was already performing, but just because the discussion is expanded a bit doesn't mean it makes much sense. Here's the opening of the Sixth Circuit's federal forgiveness pitch:

The good-faith exception is not concerned with whether a valid warrant exists, but instead asks whether a reasonably well-trained officer would have known that a search was illegal.

A "well-trained officer" should never have sought the search warrant in the first place, because a "well-trained officer" would have known search warrants were limited to the jurisdiction they were issued in. But the agent sought the warrant anyway and a magistrate judge actually approved it. The judge's approval means more to the Sixth Circuit than the FBI's bad faith proposition.

For the same reasons articulated in Master, we conclude that the good-faith exception is not categorically inapplicable to warrants found to be void ab initio. The difference between a state court judge acting without authority and a federal magistrate judge acting without authority is of little significance—in both instances, the individual who signed the warrant (arguably) had no power to do so. Master’s holding that the good-faith exception applies to one applies with equal force to the other. Accordingly, the good-faith exception to the exclusionary rule is not categorically inapplicable to warrants that are void ab initio because of a magistrate judge’s jurisdictional error.

But the case cited (Master) isn't applicable to this situation. In that case, an officer presented a warrant request to the wrong county judge, accidentally obtaining permission to search outside of the judge's jurisdiction. A similar mistake could not have possibly been made with this warrant request. A federal magistrate -- whose jurisdiction covers an entire state -- could not have been mistakenly approached to grant permission to search an entire nation. The FBI's warrant affidavit clearly states it sought to search computers without knowing where any of the targets were located. The judge saw this and signed it anyway. Even if the judge blew the call, there's no way anyone can argue with a straight face the FBI did not know the warrant request violated the law as it stood when it requested permission to deploy its NIT.

It may have been "reasonable" for the FBI agent to rely on the issued warrant, but only if you ignore what was happening at the DOJ during the time this investigation was occurring. In fact, it can be argued this investigation and a similar one in 2014 expedited the DOJ's efforts on this front as it surely recognized some judges were going to find its NIT warrant invalid.

This explanation by the Sixth Circuit of its decision to extend good faith to the FBI agent doesn't help. In fact, it doesn't make sense.

But reasonable jurists have come to different conclusions about whether the NIT Warrant was valid. Compare United States v. Austin, 230 F. Supp. 3d 828, 833 (M.D. Tenn. 2017) (finding the NIT Warrant does not violate Rule 41(b) because it is the equivalent of a “tracking device” and therefore falls under the ambit of Rule 41(b)(4)), with United States v. Croghan, 209 F. Supp. 3d 1080, 1089 (S.D. Iowa 2016) (concluding that the magistrate judge lacked authority to issue the NIT Warrant), overruled on other grounds by Horton, 863 F.3d at 1052. We cannot, therefore, expect officers to have known that this type of warrant was invalid at the time it was sought. See Workman, 863 F.3d at 1321 (“[I]f a violation took place, it has escaped the notice of eight federal judges who have held that the same warrant complied with federal law and the federal rules even though data was being extracted from computers outside the Eastern District of Virginia. . . . [E]xecuting agents could reasonably have made the same mistake and reasonably relied on the magistrate judge’s decision to issue the warrant.”).

The court is saying an FBI agent -- requesting a warrant in 2015 -- can be excused for his Rule 41 ignorance because court decisions made 1-2 years after the warrant was sought suggest the NIT warrant area might have been a bit more gray than previously imagined. Furthering the retroactive forgiveness, the court goes on to point out -- as others have -- that Rule 41 changes, which went into effect more than two years after the warrant was obtained, now makes this sort of search legal. Since suppressing evidence is supposed to deter bad behavior by law enforcement, a past abuse that has been codified into law does not present further opportunities for exactly this same abuse of authority.

Certainly it would be impossible to violate rights in the same exact way again, what with the rules having been changed following the abuses contained in this investigation. But the deterrent effect of suppression would discourage law enforcement from seeking permission to perform illegal searches, even if there's a chance those searches may become Constitutional in the future due to changes in the law. This is the court telling law enforcement to roll the dice in edge cases because you just never know what the future might bring. This encourages misconduct because it demonstrates the extent of the federal courts' capacity to forgive.

Filed Under: 4th amendment, 6th circuit, doj, fbi, good faith, jurisdiction, playpen

Seventh Circuit Appeals Court Hands Fifth 'Good Faith' Win To FBI's Invalid Playpen Warrant

from the fixing-it-in-post dept

It doesn't appear the Supreme Court will have to resolve a circuit split on the FBI's malware warrant used in its Playpen child porn investigation. The same day the Ninth Circuit Appeals Court found in favor of the FBI, the Seventh Circuit reached the same conclusion [PDF], bringing the FBI's "good faith" total to five appellate wins versus zero losses.

The Seventh's reasoning echoes that of the other circuits: the warrant may have been invalid (seeing as its jurisdiction limits were immediately violated by the FBI's malware deployment), but the FBI was correct to rely on the magistrate's screwup.

Federal Rule of Criminal Procedure 41(b)(1) authorizes a magistrate judge “to issue a warrant to search for and seize a person or property located within the [magistrate judge’s] district.” This warrant, they say, extended to people and property located outside the magistrate’s district. Defendants contend that a void warrant is tantamount to no warrant at all, nullifying the good-faith exception.

We disagree. Even if the warrant were void ab initio, we would treat this like any other constitutional violation. We see no reason to make the good-faith exception unavailable in such cases.

I'm sure the Seventh didn't mean to make it sound like it would excuse "any other constitutional violation," but that's kind of how it reads. What the court is saying is that it won't suppress the evidence obtained with an invalid warrant. It doesn't go as far as other courts have and find that there's no deterrent effect in suppressing evidence because the illegal actions engaged in by the FBI were made legal after the fact. But it does say suppression is unreasonable because it punishes the FBI for the magistrate judge's error.

The deterrence rationale for the exclusionary rule aims at the conduct of the police, not the conduct of the magistrate judge. See Davis, 564 U.S. at 238 (focusing the cost-benefit analysis in exclusion cases on the “flagrancy of the police misconduct” at issue). Thus, whether the magistrate judge lacked authority has no impact on the rule. As Leon explains, “[p]enalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.”

What's more troubling is that its discussion of the FBI's "good faith" grants credence to one of the FBI's more disingenuous arguments: that the malware it sent was a "tracking device" rather than a search, making its deployment from a seized server in Virginia constitutional because the FBI obviously can't control where tracking devices end up after they're deployed. This legal theory has been criticized in other courts even while finding the FBI, overall, acted in good faith. Here's a quote from the Third Circuit's decision, which calls out the FBI for its appellate-level goalpost moving.

We need not resolve Werdene’s contention that the Government waived this argument because we find that the Government’s tracking device analogy is inapposite. As an initial matter, it is clear that the FBI did not believe that the NIT was a tracking device at the time that it sought the warrant. Warrants issued under Rule 41(b)(4) are specialized documents that are denominated “Tracking Warrant” and require the Government to submit a specialized “Application for a Tracking Warrant.” See ADMINISTRATIVE OFFICE OF U.S. COURTS, CRIMINAL FORMS AO 102 (2009) & AO 104 (2016). Here, the FBI did not submit an application for a tracking warrant – rather, it applied for, and received, a standard search warrant. Indeed, the term “tracking device” is absent from the NIT warrant application and supporting affidavit.

The Seventh Circuit gives the government credit where none is due.

Perhaps the warrant impermissibly allowed the search of computers outside the magistrate judge’s district, as the defendants suggest. But the government suggests another theory. It notes that under Rule 41(b)(4), a magistrate judge can issue a warrant for the installation of a “tracking device” within the district that can track movement outside the district. Fed. R. Crim. P. 41(b)(4). The government characterizes the NIT as such a device, maintaining that its installation occurred in-district because the defendants were accessing servers located in that district. Choosing between these frameworks has split district courts across the country, which underscores the difficulty of the question.

Having done that, the court declares it won't discuss the "tracking device" any further because it has already said suppression would punish the FBI for the magistrate's error. The evidence remains in play and the convictions of all three defendants are affirmed.

The problem with these decisions is they tacitly encourage law enforcement to ask judicial permission for illegal searches because if it's granted, it's the magistrate's fault, not the officers', and evidence obtained illegally won't be suppressed. When the FBI asked for permission to engage in extraterritorial searches, the DOJ was pushing for removal of Rule 41 jurisdiction limits. It's impossible the agent swearing out the warrant was unaware of this fact. It was a bad faith request converted to "good faith" by the magistrate's approval, whitewashing the FBI's actions and making the evidence unassailable in court.

Filed Under: 4th amendment, 7th circuit, doj, fbi, good faith, playpen, rule 41

Ninth Circuit Aligns With Other Circuits: The FBI's Playpen Warrant Was Bad, But The FBI's Faith Was Good

from the winning-by-losing dept

The Ninth Circuit Court of Appeals is the latest appeals court to find the FBI's warrant for malware deployment during a child porn investigation to be invalid, but still close enough for government work. The FBI's NIT (Network Investigative Technique) was sent to visitors of a dark web child porn site called Playpen. The hitchhiking software then traveled out of the district the server was housed in (Virginia) to send back identifying info from computers and devices all over the world.

At the time the warrant was sought, warrants were only valid in the district they were issued. Multiple courts found the FBI's malware was a search under the Fourth Amendment. A smaller subset found the extrajurisdictional search unsupported by current law and the underlying warrant invalid from the moment it was issued. Challenges to the extrajurisdictional searches have all run into dead ends at the appellate level.

The First, Eighth, and Tenth Circuits have all refused to suppress evidence, even if the courts found the search warrant invalid. The reasoning? There was no deterrent effect served by suppressing the evidence because the law changed after the warrant was issued and the malware deployed to allow the FBI to engage in extrajurisdictional searches. In essence, this is retroactive application of a law that changed after the warrant was sought, giving it the sort of blessing courts won't extend to victims of law enforcement misconduct that happened to occur before precedential decisions explicitly declared that particular form of misconduct unconstitutional.

In addition to the retroactive application of Rule 41 jurisdictional changes, these appeals courts have also granted the government "good faith." Somehow, it's believed an FBI agent seeking a warrant for a search that he knew would violate Rule 41 limits when executed wasn't the FBI rolling the dice on favorable rulings and a potential future mooting by changes to the law.

There's more of the same in the Ninth Circuit decision [PDF]. The court says the warrant was bad but the faith was good, so no harm, no foul, no suppression. (h/t Brad Heath)

We agree with Henderson that Rule 41(b) is not merely a technical venue rule, but rather is essential to the magistrate judge’s authority to act in this case.

[...]

The Federal Magistrates Act, 28 U.S.C. § 636, defines the scope of a magistrate judge’s authority, imposing jurisdictional limitations on the power of magistrate judges that cannot be augmented by the courts.

[...]

Relevant here, § 636 authorizes magistrate judges to exercise “all powers and duties conferred or imposed” by the Federal Rules of Criminal Procedure. 28 U.S.C. § 636(a)(1). In turn, Rule 41(b) has been asserted as the sole source of the magistrate judge’s purported authority to issue the NIT warrant in this case. But, as we have explained, in issuing such warrant, the magistrate judge in fact exceeded the bounds of the authority conferred on magistrate judges under Rule 41(b). Thus, such rule plainly does not in fact confer on the magistrate judge the authority to issue a warrant like the NIT warrant. Without any other source of law that purports to authorize the action of the magistrate judge here, the magistrate judge therefore exceeded the scope of her authority and her jurisdiction as defined under § 636.

Thus endeth the bad news for the government -- bad news severely tempered by the fact the government still gets to keep its evidence. Even though the court recognizes the warrant was invalid the moment it was signed, it still gives the government points for effort. The Ninth says it's ok for law enforcement to rely on invalid warrants, so long as they've been signed by a magistrate. And good faith or not, the court says there's no reason to suppress the evidence because the house always wins there's no future misconduct to deter.

[T]here is no evidence that the officers executing the NIT warrant acted in bad faith. “To the extent that a mistake was made in issuing the warrant, it was made by the magistrate judge, not by the executing officers.”

[...]

Further, suppression of the evidence against Henderson is unlikely to deter future violations of this specific kind, because the conduct at issue is now authorized by Rule 41(b)(6), after the December 2016 amendment. The exclusionary “rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations,” Davis v. United States, 564 U.S. 229, 236–237 (2011), and we see no reason to deter officers from reasonably relying on a type of warrant that could have been valid at the time it was executed—and now would be.

With four circuits weighing in and reaching the same conclusions, it seems unlikely any further appellate challenges will upset the FBI's malware apple cart. And if the same conclusions continue to be reached, there will no compelling reason for the Supreme Court to weigh in. Add to that the post-facto codification of the tactics used by the FBI in this investigation and you've got dozens of unconstitutional searches being laundered into Fourth Amendment compliance by courts unwilling to penalize the FBI for overstepping its bounds.

Filed Under: 4th amendment, 9th circuit, doj, fbi, good faith, jurisdiction, nit, playpen, rule 41, warrants

First Playpen FBI Spyware Warrant Hits The Appeals Court Level; Is Upheld On 'Good Faith'

from the faith-based-decision-making dept

The first FBI Playpen investigation warrant challenge to reach the appellate level has been denied. Andrew Workman moved to suppress evidence obtained by the FBI's Network Investigative Technique (NIT) because warrant was deployed far outside its Eastern District of Virginia jurisdiction. Workman lives in Colorado.

The Tenth Circuit Appeals Court decision [PDF] starts with a light treatise on how technology is outpacing the law and the difficulties this poses for law enforcement agencies used to obtaining identifying information with nothing more than a subpoena.

The advent of the internet created new opportunities for viewers of child pornography, allowing immediate access to illicit websites. Use of these sites frequently leaves a computerized trail, allowing the FBI to find viewers of child pornography. But technological advances have allowed viewers of child pornography to access illicit websites without leaving a trail. To monitor access to one such website, the FBI has tried to keep up; in this case, the FBI seized and assumed control, using malware to identify and find the individuals accessing child pornography.

Though the FBI controlled the website, users lived throughout the nation. To find the users, the FBI needed a warrant. But, a paradox existed. The FBI maintained the website in the Eastern District of Virginia, but users were spread out all over the country. Finding those users could prove difficult because of geographic constraints on the FBI’s ability to obtain a warrant. Notwithstanding these constraints, the FBI obtained a warrant that led to the discovery of hundreds of viewers of child pornography. One was the defendant, who faced prosecution in the District of Colorado.

This gives the reader early notice on where the decision is heading. The lower court found [PDF] the FBI's warrant invalid because its NIT traveled far outside its authorized jurisdiction. The appeals court agrees the warrant is invalid, but says the evidence shouldn't be suppressed.

The district court shot down the government's arguments for the warrant's validity, pointing out that while the seized child porn server resided in Virginia, the information gathered by the FBI's malware was obtained from computers outside the district. The government also tried to portray the NIT as a tracking device, in hopes of putting its warrant back on firmer Rule 41 ground, but the lower court shot that down as well.

In this decision, the Appeals Court grants the FBI "good faith." While doing so, it directly contradicts the lower court's findings on both issues.

We start with the presumption that the executing agents “acted in good-faith reliance upon the warrant.” United States v. Campbell, 603 F.3d 1218, 1225 (10th Cir. 2010). This presumption is bolstered by what the executing agents would have known:

1. The software was installed in a government server located in the Eastern District of Virginia.

2. The magistrate judge, who issued the warrant, was in the Eastern District of Virginia.

3. All of the information yielded from the search would be retrieved in the Eastern District of Virginia.

With these facts, the executing agents could reasonably rely on the magistrate judge’s authority to issue a warrant authorizing installation of software and retrieval of information in the Eastern District of Virginia.

This was the lower court's finding:

I am not persuaded by the government’s argument. Rule 41(b)(2) applies to property located in the same district as the magistrate judge at the time the warrant is issued. As stated above, the NIT was designed to search “activating computers,” and, in this case, Mr. Workman’s computer was located in the District of Colorado when the warrant was issued. Further, there is no evidence that the property (information) to be seized, such as Mr. Workman’s IP address, was located in the Eastern District of Virginia at the time the warrant was issued either.

Here's the lower court on the "tracking device" argument:

While it is tempting to view the NIT as a tracking device, the reality of the technology at issue here is that the NIT did not “track the movement of . . . property” as Rule 41(b)(4) contemplates. The government did not obtain Mr. Workman’s IP address by tracking the data as it moved through various relay nodes back to Mr. Workman’s computer. Rather, the government, through the NIT, searched Mr. Workman’s computer and seized his IP address along with various other pieces of information.

In response, the appeals court just says the FBI needs to defer to the magistrate issuing the warrant because technical things are too complicated for agents to sufficiently grasp.

It is true that the affiant and magistrate judge never mentioned the term “tracking device,” and the FBI’s method differs from more conventional tracking devices. But the executing agents lacked precedents on these issues and could reasonably defer to the magistrate judge on these nuanced legal issues.

In fact, it's ignorance that saves the day, as it often does when courts hand down "good faith" rulings. The less law enforcement knows, the more likely it is the evidence won't be suppressed.

We expect agents executing warrants to be “reasonably well-trained,” but we do not expect them to understand legal nuances the way that an attorney would.

No, we don't expect law enforcement officers to be lawyers but we do expect them to be aware of the same jurisdictional limits the FBI was petitioning the government to have lifted. It's inconceivable the agent requesting the warrant -- an agent the government uses as an expert witness -- didn't know the reach of the NIT would extend far beyond the jurisdiction it was approved for.

Filed Under: 10th circuit, 4th amendment, fbi, good faith, network investigative technique, nit, playpen, privacy, warrant

The Exception Is The Rule: How The Government's 'Good Faith' Efforts Are Destroying The Fourth Amendment

from the synergy! dept

While there has been some progress towards a restoration of the nation's Fourth Amendment rights, there have also been several steps back. A lot of this seems to be tied to a judicial reluctance to side with criminals. These Fourth Amendment issues generally boil down to law enforcement v. bad guys, usually delivered without nuance.

Earlier this year, the 11th Circuit Court of Appeals found that tracking suspects using phone location info required a warrant. This wasn't a general ruling, however, and it was limited to several specifics in this case. The court found that cell phone location info carried an expectation of privacy despite also being a "business record" -- something that is normally stripped of privacy expectations thanks to the Third Party Doctrine.

But here's where the decision ultimately falls apart. The Appeals Court arrived at a different conclusion, but refused to overturn the lower court's decision because it felt the lower court had "acted in good faith." Warrant requirements are now in place in the circuit court's jurisdiction, but the plaintiff was ultimately unable to have the illegally-gathered evidence thrown out.

Similarly, the Third Circuit Court of Appeals found last year that warrantless GPS tracking was a violation of the Fourth Amendment. Again, this decision tiptoed around other similar cases and reached a rather narrow conclusion. This was immediately appealed by the government, which asked for an en banc hearing. The en banc hearing returned this decision October 1st:

The Third Circuit Court of Appeals ruled today that evidence derived from warrantless use of a GPS tracking device can be used in court, even though law enforcement's failure to get a warrant before attaching the device to a car may have violated the Fourth Amendment.

The 8-5 decision in this case, U.S. v. Katzin, applies an expansive interpretation of the so-called "good-faith exception" to the Fourth Amendment's exclusionary rule, holding that officers reasonably relied on decades-old cases dealing with primitive "beeper" tracking technology in concluding that no warrant was required for sophisticated GPS tracking.

Once again, the court found that the search was in violation of the Fourth Amendment, but "good faith" nullified the remedy of excluding the illegally-obtained evidence. The court also vacated the earlier ruling that instituted a warrant requirement for GPS tracking.

Nathan Freed Wessler, staff attorney for the ACLU, has a long piece at Slate describing how these decisions have turned the "good faith exception" into the rule.

Under the “exclusionary rule,” when police engage in an illegal search, prosecutors can’t use the results. This penalty incentivizes police to abide by the Constitution and provides relief to victims of government misconduct. Indeed, as the Supreme Court explained a century ago, without the exclusionary rule the Fourth Amendment would be “of no value” and “might as well be stricken from the Constitution.”

But in a series of decisions starting in 1984, the Supreme Court has retreated from this vital protection of our rights. The justices first held that if police were relying in good faith on a judicially issued warrant authorizing a particular search, the resulting evidence couldn’t be suppressed even if the search was later held to be unconstitutional. The court has since expanded this good-faith exception to cover police reliance on other forms of explicit authorization, including statutes later held to be unconstitutional and binding court rulings that are later reversed.

Basically, the Supreme Court's new view is that the exclusionary rule is no longer a remedy, but a deterrent. The rule isn't there to ensure redress for those whose rights have been violated. It's there to steer law enforcement away from actions that would violate citizens' rights. But this doesn't work, and the main reason it doesn't work is the "good faith exception."

The cumulative effect has been to turn the "good faith exception" into a blank check for Fourth Amendment violations. The exception gives all but the most egregious violations a pass, a fact recognized by the dissenting opinion in the Third Circuit hearing.

"[T]his approach … expands the good faith exception to the point of eviscerating the exclusionary rule altogether by failing to provide any cognizable limiting principle. Now, law enforcement shall be further emboldened knowing that the good faith exception will extricate officers from nearly any evidentiary conundrum.”

Those with valid Fourth Amendment complaints will find the courts nearly useless when seeking redress. Combined with the immunity routinely granted to law enforcement in civil cases, those whose rights are violated are left to hope for long-delayed settlements post-incarceration, rather than avail themselves of their rights when on trial for criminal charges -- the point where the exclusionary rule would be of most use.

The good faith exception has swallowed the exclusionary rule and these compounding decisions allow law enforcement to predicate their defenses on uncertainty (even though the accused are never extended the courtesy of an "ignorance of the law" defense) and hide behind immunity while courts continue to defer to the judgement of John Q. Officer.

Scott Greenfield, questioning decisions relating to both the exclusionary rule and the (always expanding) good faith exception, had this to say about the intertwined issues back in 2010:

[T]he name “good faith exception” is problematic both from an application perspective as well as political perspective. It attributes a positive characteristic to the cops (good faith) making the idea of punishing them for it seem improper, if not downright disingenuous. Moreover, if the purpose of the exclusionary rule is limited to those situations where it serves only a deterrent purpose, and at the time of the search and seizure the cop’s conduct conforms with existing law, why would the law seek to deter compliance with precedent?

The courts have painted themselves into a corner, with the ample assistance of government prosecutors more than willing to portray any minimal nod to the Fourth Amendment as something that allows criminals to elude justice. Even the language deployed plays into law enforcement's hands.

The complications arising from technological advances have muddied the waters a bit, at least in terms of where Fourth Amendment protections begin and end. To prosecutors, these protections haven't changed at all. They're still almost nonexistent. Technology presents new challenges to law enforcement and these are greeted almost exclusively with pleas for further exceptions, as though they should also be immunized from keeping pace with the world itself. And, for the most part, they've been obliged by the judicial system.

When the exception swallows the rule, the Fourth Amendment becomes nothing more than a bit of aspirational fluff cranked out by hotheaded revolutionaries nearly 250 years ago. At best, it's a hassle. At worst, it's clearly unsuited to handle the nuances of today's technology. That's the prevailing government viewpoint. Our rights are eroding, and the most corrosive force has been those sworn to uphold the nation's laws and protect its citizens' liberties.

Filed Under: 4th amendment, evidence, exclusionary rule, good faith, good faith exception