Buried Apple Privacy Scandal Undermines Its Attacks On Right To Repair Legislation

from the do-as-we-say,-not-as-we-do dept

Apple has never looked kindly upon users actually repairing their own devices. The company's ham-fisted efforts to shut down, sue, or otherwise imperil third-party repair shops are legendary. As are the company's efforts to force recycling shops to shred Apple products (so they can't be refurbished and re-used). As is Apple's often comical attacks on essential right to repair legislation, which usually involves the company insisting that allowing broader independent and consumer repair of their devices would be a security and privacy nightmare.

Yeah, about that. Apple last week was revealed to have paid a multi-million dollar settlement to an Oregon woman after iPhone repair technicians uploaded explicit images and videos to the internet from a phone that she sent in for repair. In this case, the culprits were employed by one of Apple's "authorized" repair contractors, Pegatron Technology Service in California. These authorized techs then uploaded the woman's private conversations and photos to the internet, making it look as if she had done it:

"The videos were uploaded to appear as though the woman herself had shared them on purpose, according to the documents, causing the woman “severe emotional distress”. The woman was made aware of the incident when friends saw the videos and images on Facebook. The woman sued Apple and eventually settled with the company for a multi-million dollar sum. But Apple was never directly named in the lawsuit in an effort to keep the matter confidential."

The revelation comes on the heels of a previous instance where an Apple store employee did something very similar. The latest screw up, subsequent payoff, and attempt to bury the settlement rather undermines Apple's longstanding argument that its own repair process is somehow superior to independent repair shops, and that by making it easier to repair consumer devices, consumers face all manner of alleged privacy and security harm (even if a recent bipartisan FTC report found that wasn't actually true).

The inconsistency was quickly seized upon by right to repair advocates, who note that Apple has lobbied intensely against the right to repair legislation that has been proposed in more than half of states in 2021 alone. Usually using what right to repair advocates describe as the "benevolent monopoly" argument

"Paul Roberts, a Right to Repair advocate and founder of SecuRepairs.org, calls this argument the “benevolent monopoly” argument. Yes, we have taken your choices away from you, the reasoning goes, but we did it to protect you from making the wrong choice or being tricked. Science fiction author and activist Cory Doctorow describes Apple’s model as “digital feudalism,” with the company acting as “warlord,” forcing citizens to stay within its walls and to abide by its rules."

But the choice of who should repair devices consumers, John Deere tractor owners, or hospitals own shouldn't be left up to the manufacturer. Especially if that manufacturer is attempting to monopolize repair in a way that's not only harmful to customers, but the planet itself.

Filed Under: authorized repair, privacy, revenge porn, right to repair
Companies: apple

An Update On The Pretty Crummy Supreme Court Term So Far On Issues We Care About

from the bad-beginnings dept

As the Senate hearings continue over what the future United States Supreme Court may do, it's worth taking a moment to talk about what the current Court has already just done. The RBG-less Supreme Court is now back in session, and in view of the actions it's taken in at least four separate cases, it has not been an auspicious beginning.

Even some of the best news still managed to be awful. For instance, cert was denied the Enigma Software v. Malwarebytes case. Denial is bad news because it leaves a terrible Ninth Circuit Section 230 decision on the books. On the other hand, having it denied may have dodged a bullet. Section 230 is already in the cross-hairs of Congress and the Executive Branch; inviting the Supreme Court to go to town on it too seemed like a risky proposition, and Justice Thomas's unprompted dissent ripping Section 230 jurisprudence to shreds makes clear how much damage the Court could do to this critically important law if it took on this case.

And the risk of cert being granted here just might not have been worth it. For one thing, the case may continue. The Ninth Circuit had overturned the original granting of defendant Malwarebytes' motion to dismiss, which sent the case back to the district court. Which means there could be another opportunity at some point later in the litigation for Malwarebytes to challenge the lousy reasoning the Ninth Circuit employed to revive the case. Of course, it's possible that the parties might settle and leave the Ninth Circuit decision on the books, unchallenged. However, even if that happens, it's a precedent already called into question by the more recent Supreme Court decision in Bostock v. Clayton County, Ga.. So it's not great that future defendants will have to argue around the Ninth Circuit's ruling, and by no means a certainty that the Bostock statutory construction argument would prevail, but at least there is something of substance to enable future defendants to make a good run at it.

Meanwhile, at least two other cert denials left us with even more bad news. One of these cases was Austin v. Illinois. Supreme Court review was sought after the Illinois Supreme Court left in place Illinois's revenge porn law. As we pointed out at the time – and the lower court in Illinois had recognized – the Illinois revenge porn law is not a content neutral law, and as such it's also not one sufficiently narrowly-tailored to meet the strict scrutiny the First Amendment requires. The law also doesn't take the intent of the defendant into account. Unfortunately the Illinois Supreme Court did not seem bothered by these constitutional infirmities and upheld the law. We were hoping the United States Supreme Court would recognize the problems and grant review to address them – but it didn't. The law now remains on the books. And while it might indeed punish some of the deserving people that a constitutional revenge porn law would also catch, the problem with unconstitutional laws is that they also tend to catch other people too, even those whose speech should have been constitutionally protected.

The other cert denial of note is in G&M Realty v. Castillo. This cert petition sought review of the shockingly awful Second Circuit decision doubling-down on the terribly troubling EDNY decision awarding a multi-million dollar judgement ostensibly for violating the Visual Artists Rights Act (VARA). Never mind that, despite its apparent policy intent, VARA will actually lead to less public art and thus actually hurt artists, and ignore for the moment the short shrift the law gives to real property rights, these decisions managed to offend the constitution in several other outrageous ways. As we explained previously, there were multiple due process issues raised by how this particular case was adjudicated and the extraordinarily punitive penalty awarded against the defendant property owner, who had simply painted over his own building after the district court told him he could.

But the problem isn't just that this particular case was a travesty; what this case also illustrated is how badly VARA offends both the First Amendment and the equal protection clause of the Constitution. It gratuitously awards an extra benefit to only certain expression based in some way on the content of that expression, which is not supposed to happen. (Put another way: it also denies a benefit to certain expression based on its content.) It is an utterly irredeemable law, and it is a great shame that the Supreme Court refused to grant review, not just to overturn the Second Circuit's galling miscarriage of justice but to free us all from this law's unconstitutional reach. Assuming Congress will refuse to repeal it, we will have to await a new victim of the law with the means and ability to challenge their injury before we will have any chance of being rid of it.

The reality is that Supreme Court jurisprudence is always at best a mixed bag when it comes to copyright. Earlier this year it did produce a good decision in Georgia v. Public.Resource.org, but it missed a rare opportunity to restore sanity when it comes to the VARA amendment to the copyright statute. Now the question is whether it will restore sanity when it comes to how copyright in software works.

Oral argument at the Supreme Court was finally held last week in Google v. Oracle, after having been postponed from its original March hearing date due to the pandemic. It's impossible to read the tealeaves and know how the court will rule, but it was hard to come away with too much optimism. What was concerning about the hearing is the undercurrent reflected in the justices' questions that if the Court rules in Google's favor it is somehow doing Google a favor and diminishing Oracle's copyright. When in actuality it is Oracle's copyright claim that is much broader than the law has ever allowed.

Copyrights have always (or at least until recently) been understood as limited monopolies granting their owners a limited set of exclusive rights for limited periods. Over the years these periods have become less limited, and interpretations of what these exclusive rights cover have tended to get broader. But the basic monopoly has still always been curtailed by the subject-matter limitation of Section 102(b) of the statute, which limits what can actually be subject to copyright in the first place, and fair use, which limits what uses of the work the copyright owner can exclude.

Both of these limitations are at issue before the Court: whether Oracle could even claim a copyright monopoly over the API in the first place, and, even if it could, whether that copyright could allow it to prevent other people from freely using the software's API to make their own interoperable software, or if that would be fair use. The complication in this case is that there's a special section in the copyright statute – Section 117 – that enunciates other exceptions to the reach of software copyright's, due to their unique nature that makes them different than other sorts of copyrightable works. Oracle argued that this section exhaustively articulated the limits to its software copyright, but if this view were correct it would mean that software copyright would not be subject to any of the other limitations that have always applied to any other form of copyright.

Worse, not only would such a conclusion be bad policy that would deter future software development – the sort of authorship a software copyright is supposed to incentivize – but it would also constitute a significant change from the status quo.

The one bit of good news to report is that at least Justice Sotomayor recognized this issue. In particular she observed how out of step the Federal Circuit's decisions had been from those of most other courts that had considered whether APIs could be subject to copyright. Their consensus had been no, and the freedom this view afforded software developers to make their software interoperable has enabled an entire industry to take root. In her questioning Justice Sotomayor appeared to recognize how badly it would threaten that industry if the Supreme Court adopted the Federal Circuit's decisions in favor of Oracle's copyright claims because of how much it represented a significant change in the previously understood reach of a software copyright.

JUSTICE SOTOMAYOR: Counsel, at the --in your beginning statement, you had the sky falling if we ruled in favor of Google. The problem with that argument for me is that it seems that since 1992, and Justice Kagan mentioned the case, the Second Circuit case, a Ninth Circuit case, an Eleventh Circuit case, a First Circuit case, that a basic principle has developed in the case law, up until the Federal Circuit's decision. I know there was a Third Circuit decision earlier on in the 1980s. But the other circuits moved away from that. They and the entire computer world have not tried to analogize computer codes to other methods of expression because it's sui generis. They've looked at its functions, and they've said the API, the Application Programming Interface, of which the declaring code is a part, is not copyrightable. Implementing codes are. And on that understanding, industries have built up around applications that know they can -- they can copy only what's necessary to run on the application, but they have to change everything else. That's what Google did here. That's why it took less than 1 percent of the Java code. So I guess that's the way the world has run in every other system. Whether it's Apple's desktop or Amazon's web services, everybody knows that APIs are not -- declaring codes are not copyrightable. Implementing codes are. So please explain to me why we should now upend what the industry has viewed as the copyrightable elements and has declared that some are methods of operation and some are expressions. Why should we change that understanding? [transcript p. 52-53.]

The question is whether her skepticism about Oracle's copyright claim is one that will be adopted by the rest of the justices, or whether sometime later this term we'll be writing even more posts about how the Supreme Court has let everyone down on this front too.

Filed Under: 1st amendment, api, copyright, revenge porn, section 230, supreme court, vara

Whitney Cummings Posts (Partially) Nude Photo Of Herself In Response To Blackmail Threat; Is That Revenge Porn?

from the content-moderation-is-difficult dept

Revenge porn -- or, more accurately, "non-consensual" posting of naked photos -- is a real problem. Such postings are, rightly, seen as an invasion into people's private lives, and are (quite frequently) supported by really awful online services, run by scammers and jackasses who keep ending up in prison or in other trouble with the law. Most of time this is because existing laws can, and do, handle these situations. Most mainstream internet platforms now have very clear rules against non-consensual nudity and act quite quickly to take it down.

However, there are continued efforts at passing laws to deal with this issue -- even if the attempts to do so mostly appear to be unconstitutional. We've also pointed out that these laws potentially criminalize behavior most people don't think of as "revenge porn," which could represent a real issue.

And that brings us to the case of Whitney Cummings, a comedian/actress/producer, who is getting some attention this week after responding to a blackmail threat from someone, asking for money to not release a photo that apparently shows her exposed nipple (which she had accidentally, and very briefly, included in an Instagram story). Someone sent her a version of the photo and asked how much not to post it (in this screenshot the naughty bits are cropped, and even though she's now released it, I'm not linking to the image because, be better than that).

In posting it, Cummings notes that "They all must think I’m way more famous than I am, but they also must think I’m way more easily intimidated than I am. If anyone is gonna make money or likes off my nipple, it’s gonna be me. So here it all is, you foolish dorks." Lots of people are, rightly, coming out to support her -- and are sending embarrassing pictures of themselves to her.

She does claim that others are threatening to blackmail her by saying that they've got access to her iCloud, but notes:

I'll be honest, I stand by most of my nudes. Frankly I'm way more embarrassed by all the inspirational quotes I've screen grabbed.

And, later, she posted those embarrassing screen grabs.

One other interesting note: she points out that she won't reveal who's been trying to extort her, because:

I'm not posting the names of the people trying to extort me because some of them might be dumb kids. I wouldn't want the stupid ideas I had when I was a teenager to follow me around forever or else every time someone Googled me, they'd see me shoplifting a NO FEAR t-shirt. .

This is a good example of confronting awfulness and turning it into something... better. I wouldn't say it's a "good" outcome, because it's not at all clear that Cummings wanted this image out otherwise. And so I'm left to thinking about various attempts to create revenge porn laws. Would they ding this photo itself as revenge porn? Yes, Cummings herself eventually posted it, but only under the threat of having it leaked by some jackass if she didn't pay up. One could easily argue that that situation is far from consensual. Some of the laws might say it doesn't violate the law -- since Cummings posting it herself is a sign of consent. But how would you square that with cases where these same kinds of idiots threaten to release photos or information on women if they don't "send nudes." In those cases, many young women do, in fact, send nude pictures, feeling it's their only way out -- but that's (again) very, very, very far from "consensual."

This is not to argue one way or the other on this -- other than to note that there are tough calls on this, and attempts to create laws against "revenge porn" could lead to situations where Cummings' own actions might be seen to violate those laws, even though it's a case of her taking control over a shitty situation and flipping the script a bit.

Filed Under: blackmail, extortion, free speech, ownership, revenge porn, whitney cummings

Court To Revenge Porn Bro Suing Twitter: You Agreed To Twitter Picking The Courtroom Every Time You Created A New Alt Account

from the pro-se-at-life dept

Craig Brittain's $1 billion lawsuit against Twitter is still rolling slowly towards its inevitable dismissal. Bringing with him his usual legal expertise -- which includes badly misreading the Knight Institute v. Trump decision and asking for some weird hybrid judgment/injunction/perma-unbanning -- Brittain has so far forced Twitter to… move his case to another venue. (via Eric Goldman)

Twitter invoked the forum selection clause of its terms of service -- terms Brittain agreed to time and time again as he created new accounts only to have them permanently suspended later. The terms say Twitter can move your lawsuit to its preferred venue (California federal court) and if you don't like it, well… you can just not use Twitter and/or sue Twitter.

Brittain's attempt to avoid having his Arizona lawsuit moved to California contains some rather novel legal arguments. First, he claimed Twitter's terms of service were invalid because [checks filing] it doesn't contain the mandatory "option" of arbitration. Here's the court's take [PDF]:

Brittain asserts that the Terms are unconscionable because they contain no arbitration clause and “have changed over time without arbitration.” Doc. 27 at 4. But Brittain cites no legal authority suggesting that Twitter is required to include an arbitration clause in its Terms. Nor has he otherwise shown that the Terms are unconscionable or illusory.

Second, he claimed it would be impossible for him to continue his doomed lawsuit in another state because he has no way of getting to California. It may be true -- and forum selection does tend to create unnecessary expenses for plaintiffs/defendants -- but in this case it isn't because the federal courts are accessible by those with limited travel options.

Brittain asserts that his status makes it “gravely difficult” for him to participate in the litigation. Doc. 27 at 2, 5. He notes that he “is traveling primarily by bicycle and/or public transportation to file, upwards of 40 miles per trip[.]” Id. at 2. But the Northern District of California permits filing by mail, eliminating the need for Brittain to bicycle or use public transportation to file court documents.3 The fact that Brittain is a self-represented, indigent litigant is no basis for not enforcing the forum selection clauses. As noted, the private interests of the parties must be weighed in favor of the preselected forum. See Yei, 901 F.3d at 1087. Brittain has not shown that litigating in California “will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.” M/S Bremen, 407 U.S. at 18.

Brittain also claims millions of social media users would cry out at once and be silenced if Twitter was allowed to take Craig's unwinnable lawsuit to California. Brittain asserts… reasons.

Brittain further asserts that enforcement of the forum selection clauses would “contravene a strong public policy of the venue in which the suit was brought,” and “the public policy of . . . the District of Arizona is superior to that of the requested forum.” Doc. 27 at 5. He cites the purported “public interest of over one billion total users,” including “tens of millions who have been censored, deverified, or suspended by Twitter,” but draws no connection between the interests of those alleged users and Arizona public policy.

The court is not swayed.

Twitter notes, correctly, that Arizona public policy favors enforcing forum selection clauses. Doc. 30 at 8. “Enforcement of a forum selection clause such as the one[s] at issue does not contravene any strong Arizona public policy as Arizona courts routinely hold that forum selection clauses are presumptively valid and that the party claiming the oppressiveness or unreasonableness needed to invalidate such a clause must meet a heavy burden of proof.”

Brittain's lawsuit is still alive for the time being. He'll just have to lose it in California, rather than in front of the home crowd.

Filed Under: content moderation, craig brittain, jurisdiction, pro se, revenge porn
Companies: twitter

CDA 230 Doesn't Support Habeus Petition by 'Revenge Pornographer'

from the cda-230-still-not-absolute dept

As you may recall, Kevin Bollaert ran UGotPosted, which published third-party submitted nonconsensual pornography, and ChangeMyReputation.com, which offered depicted individuals a "pay-to-remove" option. Bollaert appeared multiple times in my inventory of nonconsensual pornography enforcement actions. Bollaert's conduct was disgusting, and I have zero sympathy for him. Nevertheless, I also didn't love the path prosecutors took to bust him. The lower court convicted him of 24 counts of identity theft and 7 counts of extortion and sentenced him to 8 years in jail and 10 years of supervised release. Pay-to-remove sites are not inherently extortive, and identity theft crimes often overreach to cover distantly related activities.

Worse, the appeals court affirmed the convictions despite a significant Section 230 defense. The opinion contorted Section 230 law, relying on outmoded legal theories from Roommates.com. Fortunately, I haven't seen many citations to the appellate court's misinterpretation of Section 230, so the doctrinal damage to Section 230 hasn't spread too much (yet). However, that still leaves open whether Bollaert's conviction was correct.

Bollaert raised that issue by filing a habeus corpus petition in federal court. Such petitions are commonly filed and almost never granted, so Bollaert's petition had minimal odds of success as a matter of math. Not surprisingly, his petition fails.

The district court says that Section 230's application to Bollaert's circumstance does not meet the rigorous standard of "clearly established federal law":

In this case, the Supreme Court has never recognized that the CDA applies in state criminal actions. The Supreme Court has never indicated circumstances that would qualify a state criminal defendant for CDA immunity. Absence of applicable Supreme Court precedent defeats the contention that Petitioner is entitled to CDA immunity under clearly established federal law...

federal circuits have not applied CDA immunity in state criminal actions or indicated circumstances that would qualify a state criminal defendant for CDA immunity. Petitioner cannot satisfy § 2254(d)(1) with district court opinions applying CDA immunity in state criminal actions.

I've routinely blogged about the application of Section 230 to state criminal prosecutions, and I even wrote a lengthy discourse on why that was a good thing. Still, I can't think of any federal appellate courts that have reached this conclusion, so perhaps the court's factual claim about the jurisprudential absence is correct.

The court adds that even if Section 230 qualified as "clearly established federal law," the appellate court ruling didn't necessarily contravene that law:

the California Court of Appeal performed an exhaustive and comprehensive analysis of the applicable circuit court decisions before concluding Petitioner is an information content provider under Roommates. The state court reasonably interpreted Roommates and Jones, and reasonably concluded that Petitioner "developed, at least in part, the offensive content on his Web site by requiring users to input private and personal information as a condition of posting the victims' pictures, making him an information content provider within the meaning of the CDA."

This passage reinforces the deficiencies of the appellate court's Section 230 discussion. "[R]equiring users to input private and personal information as a condition of posting the victims' pictures" is not the encouragement of illegal content, as referenced by Roommates.com, as that information isn't actually illegal; and the Jones case rejected an "encouragement" exclusion to Section 230 while ruling for the defense. Do those deficiencies support the extraordinary relief of habeus corpus? Apparently not.

Reposted from Eric Goldman's Technology & Marketing Law Blog

Filed Under: cda 230, extortion, kevin bollaert, revenge porn

Vermont's Revenge Porn Law Ruled Constitutional... With An Incredibly Confused Ruling

from the not-how-it-works dept

Revenge porn -- or, more accurately, "non-consensual pornography" -- is unquestionably bad. We've spent plenty of time mocking the jackasses who have been involved in these awful sites, and have been happy to see them flail around as the stench of their association with these sites sticks.

However, we have not supported the attempts by a small group of legal academics to criminalize running such a site for a variety of reasons. First, such an action would make plenty of protected speech illegal causing massive collateral damage to speech and internet platforms. Second, as we've repeatedly documented, these revenge porn sites don't seem to last very long, and those involved with them have a fairly permanent stain on their reputations. Third, in many cases, the type of people running these sites often seem to have already violated other laws, for which law enforcement is able to go after them.

In recent years, the Supreme Court has made it pretty clear that it has little interest in expanding the categories of speech that are exempted from the First Amendment. I've often pointed to lawyer Mark Bennett's 2014 blog post entitled First Amendment 101 in which he details out the very short list of speech that is not protected by the First Amendment. That post is actually about attempts to outlaw revenge porn and claims that it's not protected by the First Amendment, but the list is a useful one to point to any time anyone suggests that this or that speech shouldn't be subject to the First Amendment.

Some people insist that revenge porn would clearly be exempt from the First Amendment because it's so bad. But they ignore that, in recent years, the Supreme Court has made it clear that such awful content as video depictions of cruelty to animals and picketing military funerals with truly hateful signs is protected under the First Amendment. The Supreme Court has it's very short and narrow list of exceptions, and hasn't shown any indication that it's ready to expand that list.

Indeed, the very same Mark Bennett, earlier this year, helped get a Texas revenge porn law declared unconstitutional, as the court there recognized that the law ran afoul of the First Amendment, in that it was criminalizing a new category of speech not currently exempted, and was unable to survive strict scrutiny, as per the Supreme Court, for any legislation that includes content-based restrictions.

But Mark Bennett is now reasonably perturbed that the Supreme Court of Vermont has decided that that state's revenge porn law is constitutional. And part of the reason he's so perturbed is that the ruling is truly bizarre. It accurately notes that revenge porn does not fall into one of the delineated exceptions to the First Amendment... but (surprisingly) that it still can withstand strict scrutiny:

For the reasons set forth below, we conclude that “revenge porn” does not fall within an established categorical exception to full First Amendment protection, and we decline to predict that the U.S. Supreme Court would recognize a new category. However, we conclude that the Vermont statute survives strict scrutiny as the U.S. Supreme Court has applied that standard.

That's... very strange. Usually, once a court recognizes that something is not in an exempted bucket, it finds the law to be unconstitutional. Here, Vermont is carving new territory. Thankfully, as part of saying that revenge porn is not in an already exempted bucket is a good thing, as it wipes out the incorrect claim by some law professors that you could just say that revenge porn is obscene (which would be very problematic). The court correctly highlights how there are massive differences between what is obscene and what is revenge porn, and notes (correctly again) that the Supreme Court is loathe to expand the definition of obscene:

We recognize that some of the characteristics of obscenity that warrant its regulation also characterize nonconsensual pornography, but we take our cues from the Supreme Court’s reluctance to expand the scope of obscenity on the basis of a purpose-based analysis.

Next, the court (correctly!) says it's in no position to create a new category of exempted speech:

Although many of the State’s arguments support the proposition that the speech at issue in this case does not enjoy full First Amendment protection, we decline to identify a new categorical exclusion from the full protections of the First Amendment when the Supreme Court has not yet addressed the question.

Indeed, the Vermont Supreme Court highlights how frequently the US Supreme Court has been tossing out laws that try to create new categories of unprotected speech:

[W]e decline to predict that the Supreme Court will add nonconsensual pornography to the list of speech categorically excluded. We base our declination on two primary considerations: the Court’s recent emphatic rejection of attempts to name previously unrecognized categories, and the oft-repeated reluctance of the Supreme Court to adopt broad rules dealing with state regulations protecting individual privacy as they relate to free speech.

More than once in recent years, the Supreme Court has rebuffed efforts to name new categories of unprotected speech. In Stevens, the Court emphatically refused to add “depictions of animal cruelty” to the list, rejecting the notion that the court has “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” 559 U.S. at 472. The Court explained, “Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that ‘depictions of animal cruelty’ is among them.” Id. A year later, citing Stevens, the Court declined to except violent video games sold to minors from the full protections of the First Amendment. Brown, 564 U.S. at 790-93 (“[N]ew categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.”). And a year after that, the Court declined to add false statements to the list. Alvarez, 567 U.S. at 722 (affirming appeals court ruling striking conviction for false statements about military decorations).

More significantly, as set forth more extensively above... in case after case involving a potential clash between the government’s interest in protecting individual privacy and the First Amendment’s free speech protections, the Supreme Court has consistently avoided broad pronouncements, and has defined the issue at hand narrowly, generally reconciling the tension in favor of free speech in the context of speech about matters of public interest while expressly reserving judgment on the proper balance in cases where the speech involves purely private matters. The considerations that would support the Court’s articulation of a categorical exclusion in this case may carry great weight in the strict scrutiny analysis.... But we leave it to the Supreme Court in the first instance to designate nonconsensual pornography as a new category of speech that falls outside the First Amendment’s full protections.

So then why doesn't the court declare this law unconstitutional? Well, that has lawyers like Mark Bennett and Eric Goldman perplexed. To pass "strict scrutiny," the court has to find that the law was passed to further a "compelling government interest" and that the legislation must be "narrowly tailored" to address just the issue for which the government has such a compelling reason.

Here, the court finds that there is a compelling government interest, saying that revenge porn images are not a matter of public concern, and serious harms created by revenge porn make it so that the government has a compelling interest in outlawing such content. Fair enough. But what about the "narrowly tailored" part. That seems like where such a law should fall down, but nope:

Section 2606 defines unlawful nonconsensual pornography narrowly, including limiting it to a confined class of content, a rigorous intent element that encompasses the nonconsent requirement, an objective requirement that the disclosure would cause a reasonable person harm, an express exclusion of images warranting greater constitutional protection, and a limitation to only those images that support the State’s compelling interest because their disclosure would violate a reasonable expectation of privacy. Our conclusion on this point is bolstered by a narrowing interpretation of one provision that we offer to ensure that the statute is duly narrowly tailored. The fact that the statute provides for criminal as well as civil liability does not render it inadequately tailored.

But, of course, the real problem is that all of these laws criminalize tons of content that should otherwise be protected. And here, the court more or less ignores that, by saying that the potentially overbroad nature of the law wasn't raised by the defendant:

The Supreme Court has recognized that in a facial challenge to a regulation of speech based on overbreadth, a law may be invalidated if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Id. at 473 (quotation omitted). Defendant here does not frame his challenge to the statute as an overbreadth challenge but instead argues that insofar as the speech restricted by the statute is content-based, the statute is presumptively invalid and fails strict scrutiny review.

But, as Mark Bennett highlights, this is the court completely missing that "overbreadth" is the thing you check to see if a statute is "narrowly tailored." But that's not what happened. Here, the court said no one raised the "overbreadth" issue, and thus it doesn't need to bother. So, instead, it says that the law is narrowly tailored based on how the law is written with a "rigorous intent element." But, that's not how the test works. As Bennett explains:

To pass strict scrutiny, a restriction must be narrowly tailored. It is logically impossible for a statute to be both overbroad and narrowly tailored. Strict scrutiny and overbreadth are not separate analyses. If a content-based restriction is substantially overbroad—if it restricts a real and substantial amount of constitutionally protected speech—it is ipso facto not narrowly tailored, and it fails strict scrutiny.

This is a confused mess of a ruling. As Eric Goldman notes, it's possible this could be appealed to the US Supreme Court, though it's unlikely that such a petition would be granted. It does seem likely that eventually this issue would need to be looked over by the Supreme Court to clarify the confusion. But, in the meantime, the law in Vermont stands.

Filed Under: exceptions, first amendment, free speech, protected speech, revenge porn, strict scrutiny, vermont

Revenge Porn Dude Craig Brittain Files Hilariously Bad Lawsuit Against Twitter

from the not-how-it-works-craig dept

Ah, Craig Brittain is back. Never quite satisfied to recognize that after the FTC sanctioned him, his name is the equivalent of Pustule Nickelback McHitler II, he's continued to lead his life of ridiculousness online, alternating between declaring himself a free speech hero and pushing to censor all his critics. And let us not forget his Senate campaign race in Arizona, which seemed to focus on Brittain's strategy of insulting lots of people while declaring it was obvious he was going to win. That went so well that at the end of May it was revealed that he failed to get enough signatures and thus is not on the ballot.

Apparently having some extra free time on his schedule, he has sued Twitter, pro se of course. It's a fun read, and extra amusing as it comes just days after Chuck Johnson's lawsuit against Twitter on sorta similar grounds was tentatively tossed out of court. At least Johnson had an actual lawyer file his suit. Brittain's lawsuit, of course, cites the Packingham decision that a bunch of people have been misrepresenting to claim that it says social media can be considered a public forum. Brittain combines his misrepresentation of that opinion with a misrepresentation of the recent decision that President Trump cannot block followers, in order to claim that Twitter can't kick off any political candidate.

This lawsuit implicates Twitter's responsibility as a public forum as recently ruled in Knight First Amendment Institute v. Trump et. al... where the honorable Naomi Reice Buchwald, Judge for the Southern District of New York, ruled that President Donald J. Trump must unblock all Twitter users, regardless of the content of their messaging, and also ruled that President Trump's Twitter space is an interactive public forum. The ruling also implicates that Twitter itself is a public forum space under the US Constitution, and thus all First Amendment Protections (must) apple to its use.

Yeah, that's not what that ruling said at all, but, I guess you get points for trying?

In regards to Knight First Amendment Center v. Trump, Defendant must reasonably provide access to that public forum space by unsuspending all users who are followers of President Donald J. Trump or any other public official or candidate, as well as any/all public candidates and officials, whether they are supporters, critics, or neutral to the points of view of the President of the United States or any other candidate or elected official.

Likewise, being as President Donald J. Trump is one of many politicians whose tweets create such a public space, Twitter must extend that same public forum to followers and critics of all US politicians and subsequently all journalistic outlets, in order to protect two-way freedom of speech established by the First Amendment.

Two-way freedom of speech? That's a new one. I'm sure the court will just accept this totally made-up, nonsensical concept, especially right after you totally misrepresent the findings of the Knight Center ruling (in which Twitter wasn't even a party and in which Twitter was not required to do anything). The lawsuit also contains many paragraphs of meaningless nonsense about how Twitter is not a neutral platform, which... has no impact on anything (even if some people -- including some actual Senators -- want to pretend otherwise).

Also, this (capitalization in the original):

The loss of the Accounts is a Crippling Blow to Plaintiffs and Others, and presents a Chilling Effect to the First Amendment and other Constitutional Rights, where a Crippling Blow shall be defined as 'an unconscionable and substantial loss with no defined legal remedy or recourse', and a Chilling Effect shall be defined as 'an action which suppresses similar/related rights including but not limited to the First Amendment rights to access and utilize a public forum for speech as well as the desire of other users to speak out against similar actions, for fear of action(s) such as censorship, suspension/ban, shadowban or downranking being taken against them as well'.

That's all one sentence. Try to say it in a single breath. It's fun. Anyway, this is also not how law works, and clearly there's little need to go step by step over how wrong this is... but I'll just note that when you define your own made up tort as one "with no defined legal remedy or recourse" you've basically just admitted that your entire lawsuit is bullshit.

Not to be missed is Brittain's discussion of who he is in the "Parties" section, in which he claims that "he has committed himself to reinventing and rehabilitating his life and image" and that Twitter was a necessary component to this. He leaves out the many people who he attacked (disclaimer: including me) with his account(s) over the years. Similarly, he tries to paint himself as "lifelong champion of free and even dangerous speech as a natural right" while (yet again) ignoring his repeated attempts to abuse the law to try to silence reports of his own history running a revenge porn site, setting up a fake lawyer to demand payments to get pictures off of that site, and the eventual FTC settlement concerning that whole effort. But really, it's the next part that's the most laugh inducing:

His accumulated total followers (over 400,000) have made him the most popular anarchist/libertarian thinker in world history, where anarchism is defined as 'self-government by peaceful and voluntary interaction and exchange', governed by the Non-Aggression Principle, defined as 'to not harm anyone or their property'.

Got that? He is the most popular anarchist/libertarian thinker in world history. Because he had 400,000 followers (and that's leaving aside news reports that claimed that almost half of Brittain's followers were fake). And make sure you don't miss out on the fact that Brittain is important because some wrestlers followed him on Twitter. That's in there too. It goes on like this for a while. There's also an impressively long section in which Brittain namechecks a bunch of other accounts that Twitter suspended for no clear reason, followed by even more examples where a bunch of people freak out and claim that they've been shadowbanned (even though it's unclear if they actually were). Incredibly, there are then 17 pages (which Brittain lists as a single paragraph in his filing) that repost an EFF brief in the Knight Center case that doesn't actually say what Brittain then pretends it says. This is not an appendix or an exhibit. It's just stuck there right in the middle of Brittain's complaint. This is followed by a lengthy treatise on the fact that President Obama used Twitter, which has no bearing on... well... anything.

At this point, you're on page 60 of the filing and you finally (finally!) get to the first actual cause of action which is, incredibly, "Violation of the First Amendment of the US Constitution." Which, as we've already discussed (and other courts have already found) is nonsense. Twitter is not bound by the First Amendment. That only restricts government entities. There are a bunch of other claims as well, some more nutty than others -- but all of them pretty nutty. The antitrust claim is a personal favorite. The "proof" of monopoly power in that one? The claim that Twitter controls 25% of the US social networking market. Which, uh, is not the definition of a monopoly, but Brittain's suit claims: "Therefore, it can logically be concluded that Defendant is in possession of monopoly power." This statement is not explained any further.

Also: Brittain claims that Twitter is violating CDA 230. CDA 230, of course, being the intermediary liability protection statute that literally explains why this case is nonsense and will get tossed out. It's the part of the law that says Twitter can moderate its platform however it likes. But Brittain tries to twist that.. by claiming that because Twitter itself uses Twitter, it is now an information content provider, rather than a service provider, and therefore liable for third party content:

Defendant's protections under 47 U.S. Code §230 stem from its classification as an interactive computer service. However, the presence of @Policy and unequal treatment for its users, as well as the promotion of content it agrees with ("Moments" "Front Page") and the "downranking" of content it disagrees with (to include suspensions and shadowbanning) indicate(s) that Twitter is actually an information content provider. Thereby, Twitter should be declared liable for content which appears on its platform, until at which point it ceases to act as an information content provider, and acts solely as an interactive computer service.

Nice theory. Too bad it's been rejected by basically every court since 230 became law. Courts have (rightly) found that internet services can be both an interactive computer service and an information content provider -- such that they are liable solely for the content they produce, but not for the content third parties produce on their platform. But, Brittain apparently is unaware of the reams of caselaw on this... which I guess is not that surprising.

We'd be remiss if we didn't also mention Brittain's proposed remedies. It starts off asking for a whole long list of nonsensical injunctions and declarations, then lawsuit costs and attorney's fees (he's filed this without attorneys, of course) and then "such other and further relief as this Court deems just and proper," which is normally where these kinds of things would end. But then he seems to remember that he wants money, so after all that he adds in a demand for $1 billion dollars. Well, at least I think that's what he's demanding. He calls it an injunction, which is not what you call a monetary award, and then has some sort of weird formula in which an injunction is summary judgment and it has to do with Twitter's valuation, because [reasons].

For an injunction in the form of an additional summary judgment for the Plaintiff, against the Defendant, in accordance with Defendant's valuation of over $25 Billion US Dollars, of no less than $1,000,000,000.00 US Dollars.

An injunction in the form of summary judgment in accordance with a valuation for a billion dollars? This is a word salad of legal nonsense.

Anyway, if the past is any indication, we eagerly await this "lifelong champion of free and even dangerous speech as a natural right" to now seek to have this article deleted from Google. But, we also eagerly await the "LOLwut?" response from the poor judge assigned this case.

Filed Under: cda 230, content moderation, craig brittain, first amendment, free speech, revenge porn, social media

Texas Revenge Porn Laws Loses Battle With First Amendment

from the do-it-right-or-you-might-as-well-not-do-it-at-all dept

Texas attorney Mark Bennett -- instrumental in getting an unconstitutional "peeping tom" law tossed in 2014 -- has scored another win for the First Amendment by getting an unconstitutional revenge porn law tossed. It's not that anyone (except revenge porn purveyors) wants to see revenge porn go unchecked. It's that there's plenty of laws on the books already to address the problem and those written to target revenge porn tend to do collateral damage to the Constitution.

Mark Bennett began this fight back in 2015, right after the law went into effect. As Scott Greenfield reports, Bennett has secured a win in the 12th District Court of Appeals, reversing the lower court's finding the law was First Amendment-compliant.

As has been argued from the day Mary Anne Franks began her efforts to create a criminal revenge porn statute, it clearly implicated the First Amendment’s prohibition against laws infringing on free expression, to which she merely screamed her denials and did her best to deflect by creating a fantasy interpretation of the First Amendment. The court made swift work of it.

In the instant case, Section 21.16(b) proscribes the disclosure of certain visual material, including any film, photograph, or videotape in various formats. Because the photographs and visual recordings are inherently expressive and the First Amendment applies to the distribution of such expressive media in the same way it applies to their creation, we conclude that the right to freedom of speech is implicated in this case.

As the court notes, the restriction on revenge porn is content-based. Content-based restrictions require greater scrutiny to adhere to the Constitution and Texas' law cannot hold up to this level of scrutiny. From the decision [PDF]:

In the instant case, the State conceded at oral argument that Section 21.16(b) properly is subject to strict scrutiny analysis. We agree. Here, Section 21.16(b)(1) does not penalize all intentional disclosure of visual material depicting another person. See TEX. PENAL CODE ANN. § 21.16(b)(1). Rather, Section 21.16(b)(1) penalizes only a subset of disclosed images, those which depict another person with the person’s intimate parts exposed or engaged in sexual conduct. See id. § 21.16(a)(1), (3), (b)(1). Therefore, we conclude that Section 21.16(b)(1) discriminates on the basis of content.

The state tried to claim revenge porn is always obscene material. As the court points out, the state cannot make this determination on its own. It needs the court's help and, further than that, courts need a jury's help to determine whether or not disputed content is actually obscene.

Then it points out the obvious flaw in this argument -- one the state should have caught before arguing a new, unconstitutional law was needed to regulate obscenity.

Here, Section 21.16 does not include language that would permit a trier of fact to determine that the visual material disclosed is obscene. Moreover, if, as the State argues, any visual material disclosed under Section 21.16(b) is obscene, the statute is wholly redundant in light of Texas’s obscenity statutes.

Having dispensed with the state's attempts to salvage a redundant law, the court gives it this send off -- a light kick to ass of legislators and the state's legal counsel: DO BETTER.

At the very least, Section 21.16(b)(2) could be narrowed by requiring that the disclosing person have knowledge of the circumstances giving rise to the depicted person’s privacy expectation. But because Section 21.16(b) does not use the least restrictive means of achieving what we have assumed to be the compelling government interest of preventing the intolerable invasion of a substantial privacy interest, it is an invalid content-based restriction in violation of the First Amendment.

Once again, it's not that revenge porn should be ignored. It's that it's almost impossible to craft a law targeting revenge porn without doing damage to the First Amendment. As multiple prosecutions have shown, revenge porn purveyors tend to break plenty of existing laws. Prosecutors and regulators have had little problem shutting down sites using laws not specifically created to target revenge porn. The problem is most legislators like to appear to be doing something about societal issues, but often have little interest in ensuring their proposed statutes are Constitutionally-sound before pushing them across governors' desks. As the court points out here, a little care taken during the crafting process would have gone a long way towards keeping this law alive.

Filed Under: constitution, first amendment, mark bennett, revenge porn, texas

FTC Takes Down Another Revenge Porn Site

from the an-apparent-impossibility-given-the-lack-of-a-federal-revenge-porn-law dept

There ought to be a law, say many people opposed to revenge porn. And so they craft laws with an eye on prosecution but not so much on the First Amendment, tending to treat collateral damage as acceptable so long as revenge porn site operators are criminally charged. But the proposed laws are more than bad, they're extraneous. Existing laws are still taking down revenge porn purveyors, as we've covered previously at this site.

The FTC has taken down another revenge porn site and secured a judgment against one of its operations, all without having to having to hack away at protected speech or undermine Section 230 immunity. MyEx.com -- a site "dedicated solely to revenge porn" -- has been targeted in an FTC complaint.

According to the complaint, visitors to MyEx.com can rate the videos and pictures they see and post comments about the victims. At various times, the site included victims’ full date of birth, personal email address, telephone number, and links to social media profiles, along with the intimate images.

The FTC alleges that the defendants were aware that many of the individuals did not agree to having their intimate images and personal information posted to MyEx.com. As of December 2017, there were approximately 12,620 entries on the site, according to the complaint.

The complaint [PDF] contains extensive documentation of the site runners' activities, including charging people anywhere from $499 up to $2,800 for removal of pictures and information, as well as the site's operator creating a wholly (and admittedly) fictitious business entity to hide behind.

Defendant Applegate registered the domain MyEx.com through domain name registrar GoDaddy from November 2011 through at least June 2013. He provided GoDaddy the email address shad@myex.com as his contact address.

In May of 2013, GoDaddy informed Defendant Applegate of reports of child exploitation and underage content on MyEx.com. GoDaddy also informed Defendant Applegate that an investigator from an internet-crimes-against-children taskforce and a police detective were attempting to get in touch with the website operators.

Also in May 2013, Defendant Applegate changed the contact name provided to GoDaddy for the MyEx.com website to “Eun Kim” and changed the contact address to Singel 540, 1017 AZ Amsterdam, Netherlands, while leaving the contact email address as shad@myex.com for a period of time. After GoDaddy inquired about this change, Defendant Applegate told GoDaddy in a message, “its [sic] not a company it’s a made up name for the address & [sic]; phone number in the Netherlands. The [expletive] domain is in my godaddy [sic] account.” Defendant Applegate then moved MyEx.com to a different registrar, Eurodns. He provided Eurodns the contact name “Eun Kim” and changed MyEx.com to be associated with the fictional business entity, Web Solutions B.V. He provided a contact address of Singel 540, 1017 AZ Amsterdam, Netherlands, which was the same address he told GoDaddy that he made up.

This fictitious address was also used to ignore DMCA complaints and other requests for removal of content.

Under the “Contact Us” page, the site stated, “Myex.com has no removals [sic] policy. If you are an adult who has been submitted to this site tough luck [sic].” The page went on to state, “If you have the need to send mail please address it to MyEx.com c/o Web Solutions B.V. Attn Legal Department DMCA Complaints. Websolutions Netherlands, Singel 540 1017 Amsterdam The Netherlands Attn: Legal Department.”

Paid removals were handled in a similarly shady fashion. The site's operators made those seeking content removal wire money to someone named "Shelly Mae Garcia" who supposedly lived in the Philippines. Those who refused to pay the extortion were invited to send snail mail to the fake address in the Netherlands.

The FTC finds the site owners to be in violation of the FTC Act, which prohibits unfair or deceptive acts or practices by business entities. As is detailed in the complaint, there's no shortage of evident harm created by the site's posting of intimate photos without the consent of those depicted, along with as much personal info (names, addresses, social media accounts) as the site could harvest.

The settlement [PDF] with one of the site's owners, Neil Infante, prohibits him from posting intimate photos without the explicit, written consent of the photo's subject. It also subjects Infante to 20 years of FTC monitoring and a $205,000 fine. (It appears the FTC will only be able to collect $15,000 of this fine. The FTC's press release states the rest of the fine will be suspended as Infante has shown "an inability to pay more.") Infante is also prohibited from charging takedown fees for any content whose removal is requested. The FTC is still seeking to obtain judgments against the other participants in the revenge porn operation and is ordering Infante to turn over as much info as he has on his revenge porn colleagues.

This revenge porn operation is effectively dead. The nonconsensual part of the operation is blocked by the FTC judgment and the inability to charge removal fees pretty eliminates the most profitable revenue stream. It's unclear what the future holds for Neil Infante, but it appears the Republican Senate race in Ohio (Infante's home state) is suddenly in need of a new frontrunner. Perhaps FTC judgment recipient and former revenge porn site operator Craig Brittain could send his colleague a few ideas on to how to MAGA the hell out of the nation as a Senate race bottom-feeder.

Filed Under: cda 230, ftc, intermediary liability, revenge porn
Companies: myex