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

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

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

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

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

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

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

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

Ohio Appeals Court Says Speed Trap Town Must Pay Back $3 Million In Unconstitutional Speed Camera Tickets

from the hey-New-Miami,-your-rights-end-where-citizens'-rights-begin dept

Drivers sent tickets by New Miami, Ohio speed cameras will be getting a refund. The state appeals court has upheld the ruling handed down by the lower court last spring. At stake is $3 million in fines, illegally obtained by the town.

The Ohio Court of Appeals on Monday delivered a heavy blow to New Miami's attempt to block a court-ordered refund of $3,066,523 in speed camera citations. The village insisted that the lower court (view ruling) got it wrong and that the village should not be forced to pay back any amount on the grounds of sovereign immunity. Not so, said the unanimous three-judge panel.

"While it is true that New Miami has the authority to enforce its traffic laws, it must do so in a constitutional manner," Judge Michael E. Powell wrote for the appellate court. "New Miami does not have the authority to do so in an unconstitutional manner."

This is the end of six year legal battle over New Miami's speed cameras. The lower court had problems with the lack of options made available to ticket recipients to challenge speeding tickets. It also had problems with New Miami's cozy relationship with the speed camera company, which provided free cameras in exchange for a percentage of collected fines. This fostered an unhealthy relationship between the two, leading to the town becoming most famous for being a speed trap. The company saddled New Miami with a minimum of 100 operating hours per camera each month. This led to spike in tickets and a healthy thirst for continual cash infusions on the part of New Miami's governance.

The Appeals Court addresses New Miami's last-ditch attempt to salvage the $3 million it obtained unconstitutionally. The town tried to go the "sovereign immunity" route, claiming it could not be held responsible for monetary damages arising from a civil suit. The court explains handing out refunds isn't the same thing as issuing a check for monetary damages. From the order [PDF]:

[P]laintiffs are seeking the recovery of the specific amount of penalties they paid pursuant to the unconstitutional ordinance and that were therefore wrongfully collected by New Miami. That is, Plaintiffs are seeking the return of specific monies that had once been in their possession and so belonged to them "in good conscience," and thus have asserted a claim for the return of the very thing to which the class was allegedly entitled in the first place. Santos, 2004-Ohio-28 at ¶ 13-14. The action seeking restitution by Plaintiffs "is not a civil suit for money damages but rather an action to correct the unjust enrichment of" New Miami. Id. at ¶ 17. As the Ohio Supreme Court plainly held, "A suit that seeks the return of specific funds wrongfully collected or held by the state is brought in equity" and "is consequently not barred by sovereign immunity."

The government also tried to claim the speed camera funds were not unjustly obtained. It argued it had a legal right to impose fines for traffic violations. The court agrees the town can indeed do that, but points out it has to comply with the Constitution when it does.

New Miami claims that this is not a case where Plaintiffs are seeking reimbursement for services rendered or money "wrongfully collected." New Miami asserts that the penalties paid by Plaintiffs were not "wrongfully collected" because New Miami has the authority "to operate traffic programs and collect penalties for violation of traffic laws." Apparently, it is New Miami's contention that because it has legal authority to collect penalties for violation of its traffic laws, Plaintiffs' claim is necessarily for money damages based upon a denial of due process in the collection of those penalties. While it is true that New Miami has the authority to enforce its traffic laws, it must do so in a constitutional manner. New Miami does not have the authority to do so in an unconstitutional manner.

Hopefully, this will be the end of New Miami's run as "the little speed trap that could." It's been told otherwise -- twice. It can't. Not the way it's been doing things. If the town wants to assess fees for traffic violations, fine. But it has to provide an avenue for recipients to challenge tickets. Its cozy relationship with the camera company prevents that. And its contractual obligations pervert the incentives, moving it from public safety to generating revenue.

Filed Under: ohio, pay back, speed cameras, speed trap, unconstitutional

And Another One Bites The Dust: Mass Surveillance Ruled Unconstitutional In Slovak Republic

from the time-to-take-the-hint dept

As we noted a few weeks ago, data retention laws continue to fall in Europe. Then it was Bulgaria, following in the wake of Netherlands. Now we learn that the Constitutional Court of the Slovak Republic has similarly struck down the country's data retention provisions, as reported by the European Information Society Institute:

An act, which ordered large-scale mass surveillance of citizens (so called data retention) is now history. Today the Constitutional Court of the Slovak Republic proclaimed the mass surveillance of citizens as unconstitutional. The decision was rendered within proceedings initiated by 30 members of the Parliament on behalf of the European Information Society Institute (EISi), a Slovakia based think-tank.

Those judgments are all in line with the ruling by the Court of Justice of the European Union (CJEU) that the over-arching EU Data Retention Directive was "invalid." Even the European Commission seems resigned to the fact that there will be no new data retention laws at the EU level.

However, that still leaves the possibility of national laws, provided they do not fall foul of the CJEU judgment, which implicitly offered guidelines how that might be achieved. Germany still seems determined to try, while legal action in the UK will determine whether the recent Data Retention and Investigatory Powers Act (DRIPA) has managed the trick.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: mass surveillance, slovak republic, surveillance, unconstitutional

Annoyed NY Mayor Attacks Court Decision On Stop And Frisk With Condescension And Hyperbole

from the I,-for-one,-hope-the-door-hits-him-in-the-ass-SEVERAL-TIMES-on-his-way-out dept

New York's Mayor Bloomberg and Police Chief Ray Kelly held a press conference to register their dismay at the court decision declaring the city's controversial "stop and frisk" program to be unconstitutional. As is to be expected, the decision will be challenged and, as is also to be expected, the Mayor and police chief wasted little time deploying their talking points in its defense. (Note on the embed: Video quality is terrible but this is only version of the entire press conference. Both the Mayor's Youtube account and NYC.gov website contain only a 12-minute, heavily-edited video of the press conference, one that ONLY shows the prepared statements and removes all of the Mayor's annoyed "interaction" with the press.)

Bloomberg's statement went long on crime reduction statistics (something he says the presiding judge [Shira Scheindlin] ignored) claiming the 8,000 guns seized over the past decade have "saved countless lives of blacks and Hispanics." He also claimed the stop and frisk program (or "stop, question and frisk," as he and Kelly refer to it) has made New York City the "poster child everyone wants to follow."

I have no doubt that there are many law enforcement agencies who view the stop and frisk program as desirable, but this says a lot more about law enforcement's mindset than it does about the program itself. Law enforcement agencies tend to believe Americans have too many rights, as is evidenced by years of rights abuse. Any program that curtails rights and gives officers free rein to stop and frisk citizens would largely believed to be a "good thing."

Kelly's defense of the program wasn't much different. His prepared remarks cited crime statistics and claimed the program was proactive in preventing criminal behavior, again stressing the 8,000 guns taken off the street over the past decade. Bizarrely, Kelly chose to illustrate the importance of the stop and frisk program by relating an anecdote having nothing to do with stop and frisk.

On Saturday a man threw a duffle bag into the trunk of a double-parked car in Washington Heights. When officers approached the man, he ran. That's suspicious behavior. They found $750,000 worth of heroin in the trunk. They arrested the suspects and spared the untold misery that three-quarters of a million dollars worth of drug addiction can cause to families who can least afford it.

Yes, running from the cops is often suspicious behavior, but the problems with stop and frisk is that it's deployed without any form of reasonable suspicion to back up the impromptu pat downs and searches. A big drug bust resulting from observed suspicious behavior isn't nearly the same thing as grabbing a few random minorities and pressing them up against the nearest wall for no apparent reason.

While Kelly's response was a bit more measured, Bloomberg made it clear that he wasn't interested in implementing some of the recommendations the judge made in her decision -- including additional oversight. Bloomberg (and Kelly) have been against third-party monitoring since day one, with the mayor notably arguing that his prized "army" would be less efficient with independent oversight because it introduces "confusion into the command structure."

Bloomberg also cited Scott Greenfield's First Rule of Policing* when criticizing the additional oversight, including the city council's recent bill to appoint an Inspector General over the NYPD.

*Make it home for dinner.

So, now we'll have another layer of monitors... You're a police officer. You have to know what orders to follow. If somebody pulls a gun and you WANT TO GET HOME, you don't have time to say, "Well, now wait a second, the commissioner said one thing, the monitor said another and the IG said another." By that time, you're dead.

In Bloomberg's world, police are unnecessarily constrained by rules and regulations that prevent them from placing self-preservation above all other considerations. It should be noted that many unarmed citizens have been shot for precisely this Rule, like the recent shooting death of an unarmed teen by a police officer who reassured the homeowners' whose yard he cut through in pursuit that the teen was not a threat. The teen continued to be "no threat" until the door of the shed he was hiding in flew open and the First Rule of Policing took over.

Bloomberg went on with his answer/diatribe, directing anger at the assembled press, implicating them in this rhetorical officer's death.

And I'd like to see you go to the funeral and explain to the family why their son or husband or father is not coming home that night.

Bloomberg also addressed the court's order that officers wear body cameras at all times. According to Bloomberg, the idea is unworkable. He vividly imagined the criticism that would fly once these were implemented.

A camera on the lapel or hat of a police officer... He didn't turn the right way. My god, he DELIBERATELY did it. It's a solution that's not a solution...

There is no doubt always-on cameras can be abused by the officers wearing them. Many departments fight this sort of thing because it creates a layer of accountability, something few police departments welcome. If law enforcement agencies had worked harder over the years to maintain a solid reputation for trustworthiness and rooting out abusive officers from within their own ranks, they wouldn't be in the position of having mandatory cameras deployed.

Bloomberg's attitude throughout the press conference varied between confrontational and condescending -- a nanny-statist annoyed that his subjects were restless.

A reporter, who questioned his statement that stop and frisk was only opposed by a "handful" of critics and activists by pointing out that he'd come across "hundreds, if not thousands" of critics, received this reply.

Some of these people come from a culture where police are the enemy. Here, police are friends.

What? The American culture has its fair share of people who believe police are the enemy, or at the very least have a long way to go to be considered "friends." Bloomberg's been in power so long he's forgotten (if he ever knew) that an imbalance of power tends to make those with less much more distrustful of those with more. Cops have a lot of power and under Bloomberg this imbalance has only increased.

Bloomberg went even further with this train of thought, first insulting the public and continuing on to disparage the press (again.)

The public are not experts on policing... But if you want to find someone to put on your TV show that says they don't like this, you can find them.

Bloomberg cut loose with more condescension when fielding a question from Russia Television International about the administration's fervent defense of the unpopular (and unconstitutional program).

We, unlike many countries, want to keep all of our citizens safe, and keep the crime rate down and make sure that they get home and go to court and protect themselves -- unlike other countries in the world.

And again, when asked if the appeals process would allow stop and frisk to continue until Bloomberg is out of office, his response this time was coupled with his usual scare tactics.

Boy, I hope so. I wouldn't want to be responsible for a lot of people dying.

Yes. Every homicide investigation starts with the mayor being questioned about his involvement.

All in all, the mayor appeared to be completely irritated that his pet program had been questioned (and overruled) by a court decision. In contrast, Chief Kelly's responses were handled much more gracefully. He didn't address many questions (and those he did were swiftly taken over by Mayor Bombast Bloomberg) but those he did he handled well, without resorting to scare tactics, condescension or irritability.

For instance, his response to the appointment of independent oversight was simply to state that the appointee would find what he sees every day: good cops doing a good job. The rest he handled by stating the NYPD deploys a "wide variety" of tactics in areas of high crime or by deferring to the city's legal representative.

It will be some time before the court-ordered changes appear, if they do at all. As stated above, the city will be challenging the ruling and Bloomberg is still hard at work attempting to veto the two bills aimed at stop and frisk that recently passed the city council.

New Yorkers can at least be happy Daddy Bloomberg is on his way out, although the crop of replacement candidates doesn't seem all that promising. Americans, on the other hand, have to be concerned that the man who headed up the stop and frisk program could soon be heading the Department of Homeland Security, a position that will allow dubious tactics to be deployed at a national level.

In any event, it's obvious the court's decisions has pissed off Bloomberg and his "private army" and that can't be a bad thing.

Filed Under: 4th amendment, michael bloomberg, nypd, ray kelly, stop and frisk, unconstitutional

Al Gore Says NSA Surveillance Is Unconstitutional And 'Not The American Way'

from the indeed dept

Add Al Gore's voice to those who are speaking out against the NSA's dragnet surveillance practices. The former Vice President not only said the practice was un-American, but also unconstitutional in violation of the 4th Amendment.

"This in my view violates the constitution. The fourth amendment and the first amendment – and the fourth amendment language is crystal clear," he said. "It is not acceptable to have a secret interpretation of a law that goes far beyond any reasonable reading of either the law or the constitution and then classify as top secret what the actual law is."

Gore added: "This is not right."

I keep seeing people trying to defend the program due to a single Supreme Court ruling -- Smith v. Maryland -- a 1979 case that gave rise to the "third party doctrine," which argued that if you give data to a third party, you no longer have any expectation of privacy in that data. Of course, the situation specific to that case was exceptionally different and took place in a very different world. By any plain meaning of the phrase "expectation of privacy" people certainly do not think that they're giving up their expectation of privacy just because they use an online service.

What's amazing is that the 4th Amendment is not that complicated, and certainly does not put up some giant barrier for law enforcement. All they have to do is show probable cause and get a warrant. All of this freaking out is showing that they know that they can't show probable cause to get all this data. And that should ring lots and lots of alarm bells. Thankfully, some principled politicians are seeing this and understanding the massive problems with a surveillance state.

Filed Under: al gore, nsa, nsa surveillance, unconstitutional

Why The DMCA Is An Unconstitutional Restriction On Free Speech

from the notice-and-takedown-this dept

Many legal scholars have discussed the fact that copyright law and the First Amendment are, by their very natures, in conflict. Historically, the Supreme Court has gotten around this conflict by saying that things like fair use and the idea/expression dichotomy help keep things balanced -- though many have questioned whether the massive expansion of copyright law over the last century should have changed that analysis. In the Eldred case, the Supreme Court mostly rejected the argument that copyright extension was a violation of free speech, though many legal scholars find that decision a bit of a head scratcher (if you want a great analysis of why that decision makes no sense under the law, the book No Law is a worthwhile read).

But there are still other areas where changes to copyright law may be vulnerable under a First Amendment analysis. So far, the only court case (and it's still at a low level) that has been successful in attacking the copyright on these grounds is the Golan case, which focuses on a very narrow part of copyright law.

However, it looks like some people are finally looking at some hugely questionable parts of copyright law that seem in direct conflict with case law concerning the First Amendment. Copycense points us to a fantastic recent paper from law professor Wendy Seltzer discussing how the DMCA's notice-and-takedown policy appear to violate the First Amendment:

Under the DMCA, process for an accused infringer is limited. The law offers Internet service providers (ISPs) protection from copyright liability if they remove material expeditiously in response to unverified complaints of infringement. Even if the accused poster responds with counter-notification of non-infringement, DMCA requires the service provider to keep the post offline for more than a week.

If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error. I add to prior scholarly analysis of the conflict between copyright and the First Amendment by showing how the copyright notice-and-takedown regime operates in the shadow of the law, doing through private intermediaries what government could not to silence speech. In the wake of Citizens United v. FEC, why can copyright remove political videos when campaign finance law must not?

This Article argues for greater constitutional scrutiny. The public is harmed by the loss of speech via indirect chilling effect no less than if the government had wrongly ordered removal of lawful postings directly. Indeed, because DMCA takedown costs less to copyright claimants than a federal complaint and exposes claimants to few risks, it invites more frequent abuse or error than standard copyright law. I describe several of the error cases in detail. The indirect nature of the chill on speech should not shield the legal regime from challenge.

I'm sure that our usual copyright system defenders will pop up quickly in the comments to dismiss this as ridiculous, but it's a really strong point. The basic nature of the notice-and-takedown -- even if done by private firms -- appears to be in direct violation of the First Amendment. The fact that the DMCA effectively requires companies to take this step in order to protect themselves from liability via the DMCA's safe harbors, means that even though it's a private company doing this, they are compelled to do so by the government. It does make you wonder if a compelling First Amendment case could be made around this particular issue.

Filed Under: dmca, first amendment, free speech, supreme court, unconstitutional

Is $9250 Per Song Unconstitutional?

from the we-may-soon-find-out dept

It's well known that Jammie Thomas, the woman who lost her case against the RIAA for unauthorized file sharing was planning to appeal her decision -- though, we questioned some of the wisdom behind her pursuing the case. She does have a point in questioning the instructions given to the jury, which say that "making available" is distribution when that's still an open legal question with some rulings on both sides. The problem, though, is that the evidence that Thomas did participate in unauthorized file sharing is rather strong, which makes her appeal a lot less sympathetic. It looks like her lawyers may be realizing that and may be recognizing that the biggest point in Thomas' favor is that nearly everyone seems to feel the $222,000 awarded for 24 songs ($9,250 per song) seems rather excessive. With that in mind, the lawyers have now asked the judge to overrule the fine as being constitutionally excessive. You recall, of course, that the constitution has rules against cruel and unusual punishment. Two years ago there was even a research paper that argued the rates set by the law for infringement were constitutionally excessive. A year ago, that theory was first brought up in court. It's tough to see the court going for this argument, but it definitely would make the appeals process a lot more interesting.

Filed Under: copyright, fines, unconstitutional
Companies: riaa

How Much Taxpayer Money Is Wasted By Grandstanding Politicians On Unconstitutional 'For The Children' Laws?

from the way,-way,-way-too-much dept

For quite some time now, we've been pointing out how ridiculous it is that state after state after state passes "for the children" laws which clearly are unconstitutional. These laws are always thrown out by the courts. It's a total waste of taxpayer money, as the state needs to go to court to defend the law, only to have it thrown out (it's even worse when they go on to appeal). The politicians don't care. They just want to pass the law so they can show voters in their district that they're "protecting the children." Who cares if they're not actually protecting any children and actually really just wasting taxpayer money? The latest state to go through this process is Ohio -- and now reporters are finally starting to ask how much are these bogus laws costing taxpayers to defend in court? It probably won't stop politicians from passing these laws, but it's about time the press started asking this question directly to the politicians.

Filed Under: for the children, ohio, politicians, unconstitutional