North Carolina State Senators Read Section 230 Completely Backwards, Introduces Laughably Confused Bill In Response

from the that's-not-how-any-of-this-works dept

What is it with state legislators not having anyone around them who can explain to them how Section 230 works, leading them to push incredibly stupid state bills? We've written about both Republicans and Democrats pushing bills to modify Section 230, ignoring how 230 likely pre-empts those attempts (if the 1st Amendment doesn't already).

Many of these bills misunderstand Section 230, the 1st Amendment, or how content moderation works. Though, many of them misunderstand the law in fairly predictable ways. Last week three state Senators in North Carolina -- Senators Ted Alexander, Kevin Corbin, and Todd Johnson -- surprised me. Oh no, it's not that they were some state elected officials who actually bothered to understand Section 230, because trust me, they did not. But they surprised me in that they misread Section 230 in a novel and completely ridiculous way that I'd not seen before. It's so bad that it causes me to question the great state of North Carolina: how do you elect people this bad?

The bill has all the trappings of many of the dumb Republican state 230 bills that think (incorrectly) that they can compel websites to host speech (something that is not allowed under the 1st Amendment). But this one takes it up a level. The bill is officially entitled: An Act to Enact the Stop Social Media Censorship Act to Prohibit Certain Social Media Websites from Censoring Certain Political or Religious Speech. That is already quite a mouthful. First it's act to enable another act, which says that it will stop to prohibit? I mean, c'mon guys.

But here's where things get just... wrong. The authors of the bill claim (wildly incorrectly) that Section 230 has a "state law exemption" that allows them to "cure abuses of Section 230." Here's what the bill says:

Whereas, repealing section 230 of the Communications Decency Act at the federal level is unnecessary because it already includes a state law exemption, and the Stop Social Media Censorship Act was crafted to fall squarely in the state law exemption of section 230 to cure abuses of section 230 to protect the consumers of this State

Except, that's wrong. I mean, it's literally the exact opposite of what Section 230 actually says. Section 230(e)(3) does not "exempt" states, it pre-empts them and says that no state can pass a law that ignores 230. Honestly, it looks like whoever drafted this bill read only the first half of the first sentence of (e)(3) and thought they'd found the loophole. Here's what (e)(3) actually says:

Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

That is not saying that 230 exempts state law. It's saying that it does not allow state laws that are inconsistent with 230. And, this is not exactly a secret. I mean, beyond saying it pretty damn clearly, there are tons of courts that have made this point over and over again over the years. State laws are pre-empted by 230, and they can't pass a law that gets around it. So, not only did the authors of this bill not even read the full sentence they seem to be pointing to, they did apparently no research at all, nor spoke to any Section 230 expert who could have told them that the law does not allow this.

The rest of the bill is the usual performative nonsense, mistakenly claiming that social media companies practiced "bait-and-switch" because they "market themselves as free, fair and open to all ideas" but that because they've moderated fraudsters, liars, and disinfo peddlers, that somehow makes their marketing claims "false advertising and deceptive trade practices." This is all, of course, utter nonsense. These websites have every right to moderate as they see fit both under the 1st Amendment and under their own terms of service, which everyone agrees to when they sign up.

The bill specifically tries to create a civil right of action for people who have been moderated to bring claims of deceptive trade practices, false advertising, breach of contract, bad faith, unfair dealing, fraudulent inducement, and, my personal favorite: "The stifling of political and religious speech in the modern day digital public square cultivated by social media websites that have achieved critical mass through fraud." Another mouthful of utter nonsense.

The bill does say that some speech is okay for a website to moderate -- including calls for "immediate acts of violence" (distant future violence is apparently okay). It also says that sites can take down impersonation accounts or bullying of minors (bullying adults is apparently fine as well). It also says, explicitly, that social media companies cannot take down content for hate speech. Like, literally, these three ignorant, foolish senators are insisting that websites be forced to host hate speech. Explicitly:

A social media website may not utilize a user's alleged hate speech as a basis for justification or as a defense to an action under this section

That's kind of impressive. I mean, normally when idiot elected officials push bills like this, they act surprised when people point out that their bill will encourage hate speech. But here, Senators Alexander, Corbin, and Johnson are literally putting it on front street that social media companies must host hate speech and bullying (as long as it's not a minor). Fuck these guys (and under their own bill, they should be fine with such insults).

The bill also targets the other mythical bogeyman of ignorant Republicans: "shadowbanning." It would not be allowed under this law.

Even without Section (e)(3), which these foolish, foolish elected officials misread, this bill is so incredibly in violation of the 1st Amendment that it would never actually become operational. But the level of sheer stupidity built into this bill raises serious questions about how these complete and utter fools ever got elected to anything more powerful than the local dog catcher.

Filed Under: 1st amendment, content moderation, kevin corbin, north carolina, pre-emption, section 230, social media, ted alexander, todd johnson

Drone Operator Sues North Carolina Over Its First Amendment-Violating Surveyor Licensing Laws

from the propping-up-the-good-old-boys-at-the-expense-of-people's-rights dept

It's always a problem when a private citizen starts horning in on the government's racket. The government has plenty of rackets and likes them to stay in their possession, undisturbed and unthreatened.

When the government feels threatened, it starts making threats. And, since it has almost all the power, its threats usually work. But sometimes it gets sued. That's what's happening here: a government regulatory body has decided the incumbent interests it has propped up for years is more important than little things like the First Amendment.

A drone operator in North Carolina is suing the state because it claims he can't fly drones over land and take pictures without the proper license. It's not a commercial drone operator license. (He has that.) It's a license that basically says the government has given him permission to photograph the land underneath the drones his company operates. (h/t Techdirt reader Vidiot)

Here's the impetus of the lawsuit being brought by photographer Michael Jones, as summarized by Miriam McNabb of Drone Life:

Hiring a surveyor is an expensive business, but necessary if you want to establish legal property lines. What if you just want to see what your property looks like, or create a visual map of your property or work place in order to help make decisions about new development or see what type of topography you have? While previously, you may have had to hire surveyors to make a map, now that information is readily available by using aerial images. Commonly available commercial drone software is designed to do exactly this: creating orthomosaic maps and 3D images.

Surveyors apparently don’t like the competition. In North Carolina, they’re trying to push drone operators out of business. “…drone entrepreneurs on the cutting edge are finding a very old industry standing in the way: land surveying. In North Carolina, the Board of Examiners for Engineers and Surveyors [the NC Board] sends warnings to drone operators saying that certain photography amounts to surveying without a license and threatens them with possible criminal prosecution.”

Michael Jones is being represented by the Institute for Justice. His lawsuit [PDF] claims that, first of all, he's not actually engaging in the land surveying that falls under the control of the North Carolina Board of Examiners. Or, at least, he shouldn't be, but the Board has engaged in some weird form of eminent domain, rolling up every possible definition of aerial drone photography and converting it into something it can sell licenses to engage in.

In North Carolina... drone start-ups have found themselves targeted by a centuries-old profession: land surveyors. As most people would understand it, “land surveying” involves establishing legal boundaries between tracts of land. Yet the North Carolina Board of Examiners for Engineers and Surveyors (Board) takes a far more aggressive view. According to the Board, capturing and disseminating data about the dimensions or elevations of land—or the size of objects on land—requires a full-blown land-surveyor license. Drawing even rough approximations of property lines on images requires a land-surveyor license. Even stitching aerial photos together using orthomosaic software requires a land-surveyor license.

So, the stuff many wouldn't associate with the licensed act of surveying is considered subject to Board rules and regulations. The Board's aggression manifested itself with an investigation of Jones' company, 360 Virtual Drone Services. The Board claimed Jones was engaging in unlicensed land surveying. But Jones has never presented himself as a "surveyor," nor has he offered surveying services to anyone. All he has done is take photos of land from the air at the request of customers. That didn't stop the Board from threatening him with civil and criminal "consequences" unless he was willing to open up his wallet and participate in the local government's licensing scheme.

Jones refused. And has greeted these threats -- ones delivered to at least another half-dozen drone companies in North Carolina -- with allegations that this regulation violates his First Amendment rights.

[B]oth the Board and the statutes it enforces violate the First Amendment at a bedrock level. Simply, the projects the Board targets—aerial photos, data, 3D digital models, and the like—are speech that is fully protected by the First Amendment.

As Jones points out in the lawsuit, the restrictions the board places on aerial photography are content-based. Some aerial photos are fine but those containing any sort of useful data, like the stuff that appears on sites like Google Maps (elevations, geographical coordinates, property boundaries), are considered to be land surveying even if -- as Jones has made clear to customers -- he does not offer surveying services. He has also made it explicit the photos customers purchased from him did not establish property lines and could not be used for legal purposes.

At this point, Jones' drone photography business is on hold. Hopefully the court will find in his favor and let him get back to work. If the state really wants to protect surveyors, it should nudge them towards getting commercial drone operator licenses. This would foster competition, rather than ensure surveyors who have been slow on the tech uptake still have a captive market.

Filed Under: 1st amendment, drones, michael jones, north carolina, surveyor

North Carolina Legislators Push Bill That Would Prevent Cops, Prosecutors From Charging Six-Year-Olds For Picking Flowers

from the yeah-i've-never-seen-all-those-words-in-that-order-before-either dept

This is today's law enforcement. While there are multiple societal and criminal problems that deserve full-time attention, our tax dollars are paying cops to turn our children into criminals. We don't have the luxury of pretending this isn't happening. Schools have welcomed cops into their confines, turning routine disciplinary problems into police matters.

While there may be some schools plagued by actual violent criminal activity, the stories that most often rise to the surface are those that involve violence by (uniformed) adults being inflicted on children. And I don't just mean legal minors -- a group that usually involves anyone under the age of 18. We're talking actual kids.

Here's a brief rundown of some notable cases involving "school resource officers, " a term that suggests these cops aren't actually just cops, but rather an integral part of the school disciplinary system. But when SROs deal with children, they treat children just like they treat hardened criminals.

This is a post about cops in schools I put together back in 2013. In this one, students were arrested for engaging in a water balloon fight, a 14-year-old was arrested for wearing an NRA shirt, and a DC cop gave a 10-year-old a concussion for ditching out on his music class. That's the tip of the ugly iceberg covered in this post.

But let's look at a few more incidents.

- Cops arrested a 12-year-old for pointing "finger guns" at classmates.

- Cops strip searched an 8-year-old while "investigating" feces found on a school bathroom floor.

- Orlando (FL) police officers arrested a six-year-old, zip tying her hands. One cop said the child looked like an "infant." The arresting officer was later fired for not asking permission to arrest someone under the age of 12.

- A five-year-old was hogtied by an SRO for allegedly "battering" a school employee.

That's how we've chosen to run schools in this nation. Students are just grist for the "criminal justice" mill when cops are involved. Problems better handled by administrators and parents are turned over to government employees with guns and a toolset that turns every misbehaving student into a criminal on the verge of becoming hardened.

But that's only the entry point. Cuffing elementary school kids and hauling them off to face criminal charges is only the beginning. This dumps them into a system that is inclined to believe cops and view accused persons -- no matter their age -- as items to be processed and disposed of.

This report for the Winston-Salem (NC) Journal shows what happens once cops are done turning misbehaving students into criminal defendants. If you think this nation won't tolerate criminal court proceedings involving kindergarten students, well… you just don't know what we're capable of.

The 6-year-old dangled his legs above the floor as he sat at the table with his defense attorney, before a North Carolina judge.

He was accused of picking a tulip from a yard at his bus stop, his attorney Julie Boyer said, and he was on trial in juvenile court for injury to real property.

The boy's attention span was too short to follow the proceedings, Boyer said, so she handed him crayons and a coloring book.

"I asked him to color a picture," she said, "so he did."

That's just the beginning of the report: a case involving a picked flower and a six-year-old who had no idea what the criminal justice system was willing to do to him. In child porn cases, minors are considered unable to give consent to the sexual acts perpetrated upon them. But during criminal proceedings against minors, we're apparently supposed to believe minors know the intricacies of local ordinances and only violate them with the intent of committing criminal acts.

Sure, the NC Juvenile Justice Division may require parents to take part in court proceedings against their children, but it also apparently expects children to defend themselves against criminal charges -- something they're obviously incapable of doing. Hiring a lawyer helps but, as can be seen by this case, it doesn't prevent courts from following through with the ridiculous motions of, say, prosecuting a six-year-old for picking a flower.

Things might change in North Carolina, though. The Juvenile Justice division has offered its support of legislation that would raise the minimum age for criminal prosecution to 10. The Justice division would actually like to see it raised to 14, but state legislators seem unwilling to protect prepubescents from the machinations of a justice system that relies heavily on plea deals and -- despite stating otherwise -- tends to view accused people as guilty.

Then there's the other problem, which probably can't be fixed with legislation. The juvenile "justice" system plays favorites, starting with the law enforcement agency performing the arrest.

From 2015 through 2018 nearly 7,300 complaints were filed against children age 6 to 11 years old, according to numbers from the state Juvenile Justice section.

Of those complaints, 47% were against Black children, 40% were against white children and 7% against Hispanic or Latino children.

In general, 22% of the state's population is Black, 70% is white and 10% is Hispanic.

That's how it works in North Carolina. White kids are usually taken to their parents. Minority kids are fed to the system. And the poorer you are, the worse it is. Courts punish kids and parents who are unable to attend hearings or court-ordered programs due to a lack of reliable transportation or conflicts with work schedules. For wealthy residents, court cases involving their kids are a mild inconvenience. For everyone else, they're capable of disrupting lives, ending employment, and saddling families with the stigma of criminal convictions. And all for doing nothing more than picking a flower at a bus stop.

Fortunately for parents, judges are willing to exercise the discretion law enforcement agencies and prosecutors won't. The child who picked a tulip had his case dismissed once the judge got to see the facts of the case. But even this dismissal meant his parents had to ensure their child appeared in court and had legal representation.

Legal defenders of children point out this isn't the only time prosecutors have been willing to throw the book at minors legally (and mentally) incapable of defending themselves against criminal charges.

Others cases have involved young children who have broken windows at a construction site with older friends and stood on a chair and thrown a pencil at a teacher, attorneys said. Another case involved sexual exploration with another child, attorneys said.

One of Mitchell's youngest clients was a 9-year-old with autism whose response to a teacher resulted in him being found guilty of assault on a government official.

Even if the state legislature manages to raise the age to 10, North Carolina will still be one of the worst states in the nation when it comes to accusing children of criminal acts. Only 12 states still set the minimum for prosecutions at ten. Most go higher. Some don't specify an age at all, apparently believing prosecutors are capable of exercising discretion. But, for years, North Carolina scraped along the bottom, allowing prosecutions against children as young as six years of age. That law was passed in 1979, but there's nothing on record that indicates why legislators thought justice would be better served by running kids this young through the system.

Then there's the schools, which are as least as culpable as any of the other government participants in the prosecution of children barely old enough to attend school.

Most of the complaints for kids under 12 come from schools, according to Juvenile Justice data.

From 2015 to 2018, 87% of the complaints against 6-year-olds and 58% of the complaints against 10-year-olds were from schools.

If administrators can't figure out how to effectively discipline their newest additions to their rosters without involving people with guns and prosecutors who wouldn't know discretion if it raided their house and arrested their children, then it definitely needs to be addressed with legislation that alters the contours of these judgment calls. Administrators have failed to exercise good judgment. So have the prosecutors who have relied on similarly logic-free cops to feed them underage defendants.

With any luck, the law will pass and we'll only be subjected to horror stories about kids over the age of ten being prosecuted for throwing pencils or picking flowers or whatever. Unfortunately, mindset can't be legislated. And, as long as administrators would rather throw children to the uniformed wolves for minor infractions, the justice system will never find itself running low on pre-teen defendants.

Filed Under: arresting children, children, north carolina, picking flowers, police, school resource officers, schools

Data Broker On The Hook For $5 Million After Abusing Its Access To North Carolina DMV Data

from the but-why-did-it-have-access-in-the-first-place? dept

The government demands a lot of data from its citizens. In exchange for the privilege of operating a car, the government wants to know a lot about you. It then takes this data and locks it up tight, ensuring only the agency demanding the info has access to it.

Oh, wait. It does exactly the opposite of that. It shares it with tons of other government agencies that might find that information useful. Then it sells this data to whoever it wants, profiting off information citizens are obligated to give to the government.

Late last year, Karl Bode covered the state of California's routine abuse of driver and vehicle data. The state's DMV raked in $50 million selling this data to data brokers like LexisNexis and a host of other private entities, like Experian and an untold number of private investigators.

A lawsuit against LexisNexis filed in North Carolina has just paid off for the plaintiffs, as Joseph Cox reports for Vice.

On Tuesday the massive data broker LexisNexis reached a settlement of over $5 million in response to a class action lawsuit that alleged the company sold DMV data to law firms, which then used it for their own business purposes.

[...]

"Defendants will make payment of the amount of service awards, attorneys' fees, and other expenses approved by the Court up to and not more than $5,150,000.00, in the aggregate, by wire transfer to the agent identified by Class Counsel," the proposed settlement agreement reads. Law360 first reported the settlement.

LexisNexis was just taking advantage of lax privacy laws in North Carolina. So were the government agencies that sold the data to LexisNexis in the first place. The lawsuit alleged LexisNexis sold motor vehicle records in a way that violated the state's Drivers' Privacy Protection Act. The Act doesn't appear to have provided much protection. LexisNexis and other customers weren't actually following the law, which supposedly requires private entities to detail their planned use of the data before obtaining it. This doesn't appear to have happened in this case.

And the law still allows private investigators to access the data, despite a private investigator's careless handling of purchased data having prompted the creation of the law.

Ironically, the permissible uses also include for private investigators; the DPPA was created in the first place after a private investigator working for a stalker obtained the address of actress Rebecca Schaeffer from the DMV. The stalker then murdered Schaeffer.

This settlement is a drop in the cash flow bucket for LexisNexis, which likely won't be deterred from misusing this information in the future. The solution isn't lawsuits. It's legislation that forbids state agencies from selling the data it forces residents to hand over in exchange for public goods and services. Until that happens, abusive uses of this data will still be a regular occurrence.

Filed Under: data brokers, dmv, north carolina, privacy, selling data
Companies: lexisnexis

North Carolina Cops Fired After Their In-Car Camera Catches Them Talking About Wiping Black People 'Off The (Expletive) Map'

from the sounds-like-a-very-north-carolina-discussion dept

Sometimes cop cameras do what they're supposed to. In most cases, camera footage captured by cops is used by prosecutors to build cases. But every so often, they provide the accountability we were promised when cameras began rolling out.

In-car footage of officers engaging in a bigoted discussion of current protests prompted by the killing of George Floyd has resulted in some of that accountability we've heard so much about. Three Wilmington (NC) police officers have been fired for comments they made while sitting in their squad cars.

This wasn't the result of a citizen's complaint. Rather this horrific "discussion" was seen by a supervisor during a routine audit of recordings.

According to documents released by the police department, a sergeant was conducting a video audit as part of a monthly inspection and was reviewing footage from Piner’s car that had been classified as “accidental activation.” After the sergeant listened to the conversation and determined comments made by Piner and Moore were “extremely racist,” she contacted the department administrator for the camera system.

We can guarantee this was an "accidental activation." No cop would have knowingly taped a conversation where officers discussed the current unrest using racist language or expressed a desire to engage in a war against black people to set them back decades in the fight for equality. No one would have believed this conversation ever took place if it wasn't for the recording the officers didn't know they were creating.

In addition to referring to a black female and a black magistrate judge as "niggers," an officer also used a gay slur and expressed a desire to "go out and start slaughtering them (expletive) Blacks."

The was Officer Kevin Piner. Officer Birian Gilmore was the one delivering the gay slur. Another officer, Corporal Jessie Moore, was part of a phone conversation with Officer Piner, in which Piner went even further.

Piner then told Moore that he felt a civil war was needed to “wipe them off the (expletive) map. That’ll put them back about four or five generations.” Moore told Piner he was “crazy,” and the recording stopped a short time later.

The officers did not deny that those were their voices or that they had made these comments. They had an excuse though. You know how it is when life gets tough and you just start adopting random disturbing beliefs because the pressure is getting to you.

While the officers denied that they were racists, they blamed their comments on the stress on law enforcement in light of the protests over the death of George Floyd.

Look, I can only speak for myself but I have never had this experience. I've undergone a tremendous amount of stress at various points in my life and not once did I decide that the earth was flat, or that enemas curb masturbation, or that an entire race needs to be "slaughtered" and "wiped off the map." Maybe the stress is different in Cop Land. I don't know. But this seems like the weakest excuse for expressing things you fervently believe -- one summoned in a panic after realizing your racist diatribe has been recorded.

Not only are the officers being fired, but cases they've been involved in are now being reviewed for criminal activity (committed by these officers) or biased behavior. I'm sure investigators will find something, but it might be difficult to separate these officers' own bigotry from the systemic racism of police culture. Still, I wish investigators the best of luck.

Thank god for inadvertent activations. Without them, these officers would have continued to be racists with guns and a whole lot of power -- able to inflict misery on people they hate until easing into a fully-funded retirement. But for now -- pending the inevitable lawsuit/arbitration -- they're just a few bigoted citizens whose irrational hatred was exposed by their own technical incompetence.

Filed Under: cameras, north carolina, racist cops

NC, Or Not NC: Why Suing The Sons Of Confederate Veterans In N.D.Cal For Violating The DMCA Makes Sense

from the that-is-the-question dept

In Mike's piece about Greg Doucette's lawsuit against the Sons of Confederate Veterans for abusing the DMCA, he suggests that the lawsuit might not belong in the Northern District of California. I thought it worth exploring why it might very much belong here, because those reasons may apply to most other DMCA Section 512(f) jurisprudence as well.

Mike is right that there are many things to consider in deciding where to bring a legal fight. Neutral ground, especially on issues as sensitive locally as those raised by this case, can indeed be desirable because it will help allow for clear focus on the legal questions. And in this regard Northern California is a better choice than North Carolina.

But there are also legal considerations. When I first read Marc Randazza's demand letter on behalf of Doucette, I worried that he would have to file any such lawsuit in Northern California. Which is in the Ninth Circuit, which is the sole circuit that has thus far interpreted Section 512(f) of the DMCA. And which, in doing so, basically inserted its own language into the statute when it decided that a takedown notice sender only had to have a subjective "good faith belief" that the targeted material was infringing. Which represents a substantial decrease in the amount of good faith a takedown notice sender would need to have in order to be able to send their deletion demands with impunity. Which has thus severely defanged the DMCA's 512(f) provision, which was supposed to impose a deterring penalty on those who send invalid ones. And which has therefore now opened the door to a torrent of unmeritorious and abusive takedown demands, of which the Songs of Confederate Veterans demand was just one more. I therefore hoped that if any lawsuit should follow that it be filed elsewhere, where a new court could look at the statute with fresh eyes and ignore the Ninth Circuit's statutory modifications. But I wasn't sure it could be.

Forum choice isn't exactly a science. It can sometimes be the most heavily litigated aspect of a case. And there also may not always even be just one right answer. But there are some general rules to help figure out whether a forum choice is appropriate, and one of them relates to where the harm occurred. On the one hand, the Sons of Confederate Veterans were likely located in North Carolina when they dispatched their takedown notice. But that takedown notice was dispatched to a company with corporate headquarters in Northern California, and it was at that company where the decision to abide by the takedown demand and remove the material Doucette had published was made.

And where, arguably, it needed to be made. Because a DMCA takedown notice isn't really an attack against allegedly infringing content. It's an attack against the 512(c) safe harbor that Internet platforms depend on to not get obliterated by crippling copyright litigation. Greg Doucette's speech was victimized by the takedown demand, but the takedown demand itself was the Sons of Confederate Veterans actually throwing down the gauntlet at Dropbox, demanding satisfaction. Like any 512(c) takedown notice it essentially was a declaration to the platform, "Take this content down, or we may sue you for it." And all the harm that then flowed to Doucette was due to Dropbox, a company headquartered in Northern California, yielding to this threat.

We may wish that Dropbox had resisted this facially unmeritorious demand. From time to time platforms can and do resist bogus takedown demands. But by and large it is simply not possible to pick and choose which to ignore. There are simply too many takedown demands, and the stakes are too enormous if the platform should get the call wrong.

Which is why having a provision like 512(f) as part of the DMCA was so important. Because the platforms cannot effectively filter out the abusive takedown notices, we need the senders to do it themselves. We need the fear of expensive sanction needs to be plausible enough to make a takedown notice sender think twice before sending a wrongful one. Unfortunately, following the Rossi and Lenz v. Universal cases, the decision to send garbage takedown demands is now virtually costless.

But maybe it won't be here. It's quite possible that this takedown notice, which zeroed in on a textbook-example of First Amendment-protected speech exemplifying exactly why the public interest demands we protect it, failed to meet even the flimsy Ninth Circuit standard of "subjective" good faith. It's possible that adjudicating this case, in N.D. Cal and maybe eventually the Ninth Circuit at large, could turn out to provide a precedential example that helps revive at least some of the potency 512(f) was supposed to have. True, it won't be able to incite the sort of circuit split that attracts the Supreme Court review needed to resolve the issue once and for all, as it unfortunately refused to do in the Lenz case. But given the number of Internet platforms availing themselves of the 512(c) safe harbor who are located here, in this district and this circuit, this is where we need to see the courts finally start recognizing and punishing the harm on protected speech that these meritless takedown demands inflict.

Filed Under: 512(f), 512f, 9th circuit, dmca, dmca 512, greg doucette, jurisdiction, marc randazza, north carolina, northern california, venue
Companies: dropbox

UNC Gave Racists $2.5 Million To Settle A Lawsuit That Hadn't Been Filed Yet, And The Racists Are Abusing The DMCA To Hide The Details

from the buckle-in dept

Last Wednesday, right before Thanksgiving, some very odd news broke about the University of North Carolina giving the Sons of Confederate Veterans $2.5 million and a bullshit confederate statue that had been torn down by protesters in 2018. The Sons of Confederate Veterans have a history of promoting racist ideas and movements, with a special focus on promoting Confederate monuments and symbols -- symbols of support for slavery from a bunch of literal traitors -- as well as promoting historical revisionism about the US Civil War. Contrary to the belief of some, those monuments -- including the one at UNC -- were put up many years after the Civil War, and were frequently put in place as a show of racist attitudes and beliefs, not as a historical remembrance. There's a reason so many places are choosing to take those down.

The NY Times story linked above had some oddities in it. It claims that UNC's Board of Governors agreed to hand the "Silent Sam" statue over to the group and give them $2.5 million, perhaps to build a museum to house the statue, to settle a lawsuit. But what lawsuit? And what possible standing could the Sons of Confederate Veterans have to sue over a statue it did not own and had no direct relationship with? There was one line that really stood out to me in the original story:

R. Kevin Stone, the commander of the Confederate group, said the settlement was fair. He said that his group was in possession of the statue at an “undisclosed location.”

He did not know specifically when his group had sued the university but said that negotiations had been going on for months.

The leader of the group doesn't know when they sued the University? Huh? It turns out that the same sentence caught the attention of tenacious lawyer, and producer of epic (and often impossible to follow) Twitter threads, Greg Doucette, who decided to investigate. Doucette discovered that the lawsuit was filed... Wednesday. Not some Wednesday in the past, but last Wednesday. The same day that the lawsuit was settled. And, even more insane? The UNC Board of Governors met an hour before they were served with the lawsuit to approve the settlement. That's... not how this is supposed to work. And then, UNC immediately filed an answer to the lawsuit, and then a settlement "consent judgment" was entered, and signed off on by the judge -- all on the day before Thanksgiving, all within a few hours. Oh, and as Doucette points out, the judge who signed off on the settlement, Superior Court Judge Allen Baddour, happens to be a UNC and UNC Law alum.

Doucette even points out that the University sent out a press release about the settlement before the lawsuit even existed. Which is... very, very odd.

Still, that's not usual Techdirt fare. What makes it worthy of Techdirt is what happened this week. Doucette has continued his digging (and continued to lengthen his Twitter thread). He went to the courthouse to scan all the court documents related to the lawsuit. He posted all of the documents to a Dropbox folder. Except, if you go to that link as I type this you see this:

What happened? The Sons of Confederate Veterans sent a bogus DMCA takedown notice to Dropbox, claiming that it violated their copyright. Their copyright on public court filings. I am assuming that Dropbox will get this sorted out fairly quickly, but all of this may make you wonder just why would such an organization file a completely bogus takedown notice to hide documents in their own damn lawsuit?

It seems what really, really pissed off the Sons of the Confederate Veterans was that Doucette had posted the "victory statement" which literally has the leader of this group giving away the entire game plan, including flat out admitting that they had no case at all, and everyone he spoke to agreed that any case would get thrown out of court:

As to option one, having the memorial restored to McCorkle Place at UNC, we have been trying for over a year to find a way to bring suit against UNC, the UNC Board of Trustees, and the UNC Board of Governors, and anyone personally, like Carol Folt, who could be held responsible. As we have mentioned dozens of times, despite consulting every known legal source, including those parties who have had success with SCV suits in Virginia and Tennessee, we could not get past the issue in North Carolina law of legal standing in the Silent Sam case so to bring a suit. Even if we had filed suit, our complaint would have been challenged and dismissed immediately without result. After extensive consultation (with judges, retired judges, etc.), we were 100% certain that this would be the outcome.

It also admits that the group and UNC had spent months negotiating this "deal" in secret, fearing that any media leak would torpedo the deal.

Prior to this point, we could not mention ANY of this to you at meetings or over the Tar Heel email list because all negotiations were required to be 100% confidential. For their part, knowledge by the media, the leftists, UNC faculty, and even other members of the Board not privy to the negotiations that their leadership was working with the SCV would have torpedoed the whole thing. On our part, with a minority of disgruntled and impatient members in our ranks, and those who have admitted that they gladly share information with our enemies, there was a very distinct risk that loose and uninformed talk would have ended the whole thing, and that nothing would be accomplished. A breach of this confidentiality would have killed the whole deal. This is why we could not share extensive details until now.

The statement also notes that it will reveal "more details than I will be giving the media and others," and boy does it ever. He more or less gloats over the fact that the University is literally paying them for this.

What we have accomplished is something that I never dreamed we could accomplish in a thousand years and all at the expense of the University itself. This is a major strategic victory, and I look forward to continuing to move the Division forward.

There's a lot more in the ongoing thread (as there always in Doucette's rather epic threads), but for the purposes of Techdirt, we'd just like to call out yet another example of how the DMCA is abused for censorship once again -- and how that sometimes backfires and helps draw a lot more attention to whatever it is that people are trying to hide (there's a name for that somewhere...).

What's truly hilarious about this whole thing is that, according to that "victory statement," part of the reason why UNC was so eager to do this deal was to... avoid bad publicity. That also explains why all of this went down the day before Thanksgiving. That strategy doesn't seem to be working out quite as intended, though.

Filed Under: censorship, confederate statues, copyright, dmca, north carolina, racists, silent sam, unc board of governors
Companies: sons of confederate veterans, unc