Giving Cops The Finger Is Protected Speech, Says Another Federal Court

from the learn-faster,-idiots dept

Another federal court has given its official approval of flipping the bird to cops. This isn't to say it's a wise idea, just a Constitutional one. Extending the middle finger is protected speech. Detentions or arrests that follow bird-flipping are usually unsupported by any of things officers need to have on hand (probable cause, reasonable suspicion, etc.) to deprive someone of their liberty.

Other cops have argued the hand gesture that pissed them off so much they broke the Constitution is some sort of universal distress signal. The ensuing interaction wasn't about being offended, but rather their outsized concern someone in the vehicle might be in need of assistance. Courts have found this argument literally unbelievable.

In this case, the cop being sued made no such argument. Instead, Officer Wayne Minard maintained he had probable cause to pull Debra Cruise-Guylas over again because he had only issued a warning about her speeding. The court doesn't agree with this assessment. It points out Guylas had already been pulled over for speeding. The citation ultimately issued by Officer Minard may have been for impeding traffic, but the purpose of the original stop was fulfilled when the citation was issued. No further violation had occurred when Minard pulled Guylas over a second time. From the decision [PDF]: (h/t Adam Steinbaugh)

The evidence before the Court included a state court record that established the Plaintiff had received and paid a ticket for impeding traffic. [...] While Defendant could have, at that time, issued a ticket for speeding, he did not. It was only after the initial stop had been completed, and Plaintiff drove off and "flipped the bird" that Defendant stopped her a second time without any legal justification.

Also, the cop's lawyer wasn't much help:

[A]t the September 21, 2018 hearing, Defendant's counsel conceded: "No doubt the gesture helped -- it probably was the foundation for the change of his [Defendant's] mind" [to implement a second stop] … "I can't argue around that, your Honor."

The court notes there's plenty of precedent on point that says officers can't detain people for offending them. The lawsuit proceeds and Officer Minard will have to deal with the unpleasant outcome of his idiotic actions.

The Constitution may cover giving officers the finger, but that doesn't mean officers won't make you miserable for exercising your First Amendment rights. Sure, you may gain some satisfaction from the courts, but you'll be out a lot of time and money. This isn't to say self-censorship is the way to go, but there are real costs attached to exercising your freedoms if you happen to anger the wrong [sigh] "public servant."

Government employees can violate rights in mere seconds and defend against allegations using someone else's money. Citizens don't have that luxury, which is why stupid shit like this continues to happen. A better cop would have let it go, costing no one anything. Officer Minard isn't one of those cops, and his willingness to abuse the power entrusted to him should be a major concern to his employers.

Filed Under: debra cruise-guylas, first amendment, free speech, police, probable cause, the finger, wayne minard

Twelve Rules For Not Being A Total Free Speech Hypocrite

from the yes,-we-mean--you-peterson dept

I have to say that I've never received so many earnest and detailed--but super angry--emails as I did after my article earlier this year calling out Jordan Peterson's obvious hypocrisy for claiming to fight for free speech, while suing a university for "defamation" over the speech of some of its staff members. So many very, very earnest young men, really, really wanted to debate the finer points of how suing over speech could magically lead to more free speech. Again, to be clear: I thought that what Wilfrid Laurier University did in punishing a teaching assistant for showing a video clip of Peterson was completely asinine and the university and its staff deserved all of the ridicule it got.

The lawsuit, however, was another story altogether. Beyond it being a completely obvious SLAPP suit -- using defamation to try to silence someone -- there were all sorts of weird conflicts of interest (it was filed by the same lawyer representing the teaching assistant Lindsay Shepherd, and as some have pointed out, Shepherd and Peterson are clearly in conflict with one another over this, since it was Shepherd who actually "published" the negative comments about Peterson by posting them in a video). But the key point is that it's blatant hypocrisy to sue someone for criticizing you while basing a large part of your persona on being about freedom of speech. Indeed, much of Peterson's claim to fame was in loudly protesting a proposed law in Canada that he claimed would be an attack on his own free speech.

Since then, however, Peterson only seems to be doubling and tripling down on his attacks on free speech. A few weeks ago he filed a second lawsuit against Wilfrid Laurier University arguing (I kid you not) that the University's own defense to his original lawsuit defamed him again because it claimed that he benefited from the press attention around the controversy (rather than harming him, as required to be defamation). This seems even more ridiculous than his original lawsuit. Canada, like the US, has absolute privilege in judicial proceedings, meaning you can't claim defamation for things said in the course of ongoing litigation. But, apparently Peterson is going to ignore that.

Then, even more recently, the Cut revealed that Peteron threatened to sue Cornell University professor Kate Manne after she criticized his book in an interview with Vox. Specifically, she called his work misogynistic, which is a clear statement of opinion (and done so based on disclosed facts). But, no matter, she still received a threat letter:

In letters to Manne, Cornell, and Vox, Peterson’s lawyer, Howard Levitt, demanded that all three parties “immediately retract all of Professor Manne’s defamatory statements, have them immediately removed from the internet, and issue an apology in the same forum to Mr. Peterson. Otherwise, our client will take all steps necessary to protect his professional reputation, including but not limited to initiating legal proceedings against all of you for damages.”

As the Cut article makes clear, these threats are utterly bogus, and appear to be attempts to chill speech that criticizes Peterson. Indeed, the Cut notes that this is all even more ironic, given that Manne actually engages pretty thoughtfully with Peterson's ideas, rather than dismissing them wholesale as many others have. As Peterson claims to be a supporter of the give and take debate of free speech, it's blatantly hypocritical of him to then threaten to sue people for fairly tame criticism.

In fact, reading the full threat letter that Peterson's lawyer sent on his behalf, makes it quite clear just how allergic to "open debate" the apparently "free speech" supporting Peterson appears to be. Multiple statements listed as "defamatory" are so obviously statements of opinion that they include phrases indicating that they are opinion:

• "I also think..."
• "I also suspect..."
• "I believe..."

Manne is clearly expressing her opinions on Peterson's work. She is critical of Peterson's ideas, but if you truly believe in the "marketplace of ideas" then you're supposed to be cool with that -- not threaten to sue them.

Also, utterly bizarre is that beyond going after Manne, the letter also threatens to sue the institution where she works, Cornell University (disclosure: also my alma mater) claiming that in Canada "liability can be imputed to employers due to damages caused by their employees and/or officers." To support this claim, the letter points to John Doe v. Bennett, a Canadian case in which the Roman Catholic Church was found liable for sexual abuse by its clergy. To argue this means a university is somehow liable for defamation because one of its staff members criticized Peterson is quite a stretch.

Oh, and remember, that some of Peterson's rise to fame was his claim to be taking a principled stand against compelled speech by arguing that a Canadian law would have compelled him to use specific pronouns in addressing people that he felt was a violation of his speech rights. He also has a page on his own website complaining about "perhaps unconstitutional" compelled speech by the Law Society of Upper Canada. And yet, in this letter sent on behalf of free speech warrior Jordan Peterson, his lawyer demands some compelled speech from Manne and Vox in the form of "an apology to Mr. Peterson." So, apparently taking into consideration a misuse of pronouns in investigating hate crimes (which is actually what the bill Peterson was so upset about was really about) is an unconstitutional form of compelled speech... whereas requiring a public apology for someone being mildly critical of your work is perfectly fine?

To me, that seems like evidence of some fairly blatant hypocrisy, not to mention legal thuggery, which will likely create chilling effects, causing others to shy away from stating their opinions on Peterson's statements. That may or may not be Peterson's goal, and at least some of his fans seem to think that silencing criticism is pro-free speech because it allows Peterson's ideas to spread -- but that's not how it works. Threatening lawsuits and claiming defamation over someone criticizing your ideas is the literal opposite of supporting free speech.

Even if you think it's cool to create chilling effects for someone who doesn't want Peterson to speak, you simply are not promoting free speech by silencing critics of free speech. That's not how it works. At all. Any attempt to completely silence people -- even if they're not fans of your free speech -- is still an attempt to stamp out free speech and antithetical to free speech. So, given that so many of Peterson's avid followers seem to like lists, let's give you a nice list of twelve rules for not being a total free speech hypocrite:

1. Speak out when you have an opinion on something.
2. Express yourself appropriately when you think someone else is incorrect about something.
3. Recognize that not everyone may agree with your take on things. That's cool.
4. There may be consequences to your speech. That's part of free speech.
5. Some of those consequences may involve people calling you nasty names. That's no fun, but it's still free speech.
6. Those people are not harming your free speech. They are engaging in it.
7. Don't sue or threaten to sue those people for defamation. It makes you look like a hypocritical dipshit.
8. Don't then sue again because of their legal response pushing back on your original defamation lawsuit.
9. Don't then go screaming at people who call you out as a hypocrite for suing people for criticizing you.
10. Perhaps try a little introspection and recognize that suing people for criticizing you creates massive chilling effects and is entirely counter to free speech.
11. If you're going to insist that others accept your ideas, maybe recognize that you have to accept others' ideas, even if you disagree with them.
12. Don't sue a cat when it hisses at you in the street.

Filed Under: 12 rules, chilling effects, criticism, defamation, free speech, hypocrisy, jordan peterson, kate manne, threats
Companies: cornell university

Pennsylvania Legislator Thinks He Can Ban Teachers From Talking About Politics In The Classroom

from the there's-a-sucker-leaving-office-every-minute dept

A Pennsylvania legislator with little to lose but his remaining reputation has decided to burn that down on his way out of office. State rep Will Tallman wants to exit in a blazing cloud of idiocy and is asking his fellow reps to be as stupid as he is. (h/t Max Kennerly)

On Friday, Tallman sent a memo to the 203-member state House seeking support for a bill he dubbed the “Teacher Code of Ethics,” which legal experts questioned as unconstitutional overreach.

In the memo, Tallman said his bill would forbid public school teachers from endorsing, supporting or opposing candidates or incumbents for local, state and federal offices while in the classroom. On the job, teachers could not discuss enacted or pending legislation, regulations, executive orders or court cases involving any level or branch of government. They could not talk about activities “that hamper or impede” law enforcement actions or military recruiters on campus.

Tallman actually believes children as young as the age of 5 are being "indoctrinated" by teachers with ideological axes to grind. His conclusion appears to be based on things people like him have said in the recent past without offering citations or evidence.

As a member of the House Education Committee, he said, he has received “half a dozen to a dozen” complaints about teachers inserting their political beliefs into non-germane topics. His adult children and grandchildren also complained to him about the same issue, he said.

So, the braintrust behind this assertion includes three missionaries and their children and 6-12 complaints over the past decade. Obviously, the only conclusion to draw is that indoctrination is out of hand and only the powerful velvet fist of government regulation can stop it. If the First Amendment must be destroyed to save the children, it's a sacrifice Tallman is willing to make on behalf of the few that agree with him and the large majority of non-idiots who don't.

Everyone who isn't Tallman has already greeted his proposed legislation with Constitution-based ridicule. The law will never pass. If something goes horribly wrong and the bill does pass, the courts will strike it down immediately.

Tallman believes it won't. Tallman -- again without offering supporting evidence -- firmly believes this same sort of unconstitutional garbage is already law elsewhere in the country.

Tallman stood by his bill, saying four other states, which he could not name, have enacted similar legislation, and that it would be up to the courts to determine if the enacted laws and his bill are legal.

Follow-up?

"This will have to play out in court," he said.

Sorry, but the game goes to The Morning Call.

It already has.

The Morning Call offers far more than cases it can't name in support of its statement. Readers are given a list of precedential Supreme Court decisions striking down similar unconstitutional restrictions on speech.

The bill has zero chance to survive a Constitutional challenge should it somehow make its way from half-formed brain fart to actual law. No one else in the legislature appears willing to push Tallman's Folly along, meaning the legislator will have to handle all of his own agitating while short-timing his way through his last few months in office.

Tallman could have exited office gracefully -- remembered vaguely as that one guy who did the government thing for nine years. Instead, he chose to be remembered for the hill he chose to retire on -- a stupid law so facially unconstitutional it could only have been dreamed up by someone who uses family members as focus groups.

Filed Under: free speech, pennsylvania, politics, schools, will tallman

In Which A Bunch Of Us Try To Explain The 1st Amendment To Jeff Sessions Concerning 'Social Media Bias'

from the you'd-think-he'd-understand-it-already dept

A few weeks back, we did a post trying to explain how the planned meeting between Attorney General Jeff Sessions and a group of state Attorneys General to "discuss" how to deal with the imaginary problem of "political bias" on social media platforms actually represented a serious First Amendment problem. The government simply isn't allowed to pressure companies into any sort of compelled speech, and yet it appears that's exactly what these law enforcement officials were trying to do.

Late last week, we signed onto a detailed letter put together by the think tank TechFreedom, explaining why this meeting is so problematic.

We write to express our concern over your plans to convene a meeting of state attorneys general later this month “to discuss a growing concern that [operators of popular social media services and search engines] may be hurting competition and intentionally stifling the free exchange of ideas on their platforms.” The First Amendment bars the government from attempting to “correct” the first alleged problem, political bias, including through the antitrust laws, and sharply limits how the antitrust laws can be used against anticompetitive behavior beyond editorial bias. Essentially, antitrust law can prescribe anticompetitive economic conduct but “cannot be used to require a speaker to include certain material in its speech product.” … For all these reasons, we are skeptical that there are any grounds for legal action that could arise out of your inquiry.

The letter also highlights why the very idea of a "fairness doctrine" for the internet is Constitutionally impossible, not to mention ridiculous, given that the push for it is coming from the very same Republicans who have spent years falsely "warning" that the Democrats wanted to bring back a "fairness doctrine" for broadcast TV.

A Fairness Doctrine for the Internet Would Be Unconstitutional. The President and top congressional Republicans have talked about the need to ensure the “fairness” of social media platforms and search engines. Consciously or otherwise, this invokes not antitrust law but the “Fairness Doctrine” imposed on radio and television broadcasters by the Federal Communications Commission from 1949 until 1987. In theory, the Fairness Doctrine required broadcasters to represent a wide spectrum of opinion on controversial issues of public importance. The Supreme Court upheld this Doctrine in Red Lion (1969) — but only because it declined to extend the full protection of the First Amendment to broadcasters on the grounds that they received government licenses to use a scarce public resource: the airwaves. Five years later, the Court categorically rejected mandating that newspapers offer a right of reply.

Anything like the Fairness Doctrine would undoubtedly be struck down as unconstitutional if applied to any other media — whether to Fox News (the cable network) or Internet media....

Ironically, it was conservatives who led the fight to repeal the Fairness Doctrine over four decades — because it hurt conservatives most: The threat of losing an FCC license discouraged broadcasters from including non-mainstream voices in their coverage and made impossible alternative media offerings with an unabashed conservative “bias.” Indeed, it was President Reagan’s FCC that repealed the Fairness Doctrine in 1987.

The letter, targeted at Jeff Sessions repeatedly reminds him how such a tool might be used in the other direction as well:

The last thing conservatives should want is a Democratic administration with such arbitrary power (or a Republican administration, for that matter). A Warren administration, say, could use such powers to coerce existing social media sites and search engines to disadvantage conservatives (in the name of neutrality and fairness, and stopping “fake news,” of course) and also to prohibit the “Facebook for conservatives” network recently called for by Donald Trump, Jr.

It's quite incredible that we're even discussing this. A fairness doctrine doesn't make any sense, and is broadly unconstitutional for a whole host of reasons. What's bizarre and troubling is how quickly those who like to wear blue or red uniforms like to rush to it as soon as they feel one area of the media is "biased" against them, not recognizing how it would clearly be used in other areas of the media as well.

While it appears that Sessions' gathering with Attornerys General will happen, hopefully all it serves to do is remind them all that the First Amendment exists, and that they are Constitutionally prohibited from messing with how online platforms present content.

Filed Under: antitrust, attorneys general, compelled speech, doj, first amendment, free speech, jeff sessions, political bias, search bias, social media, state ags
Companies: facebook, google, twitter, youtube

Judge Says Student Can Sue School For Suspending Her After She Called A Fictional Cop A 'Pig'

from the peak-asinine dept

Sometimes the best move is to let something go. Kids will be kids, as the saying go. Thing is, kids may also be litigants, especially if you think your school administration position grants you the power to violate students' rights.

The mother of the 17-year-old girl filed the federal lawsuit this past February against the Hackettstown School District; teacher Kathleen Matlack; assistant principal Kevin O'Leary; and Jennifer Spukes, a Harassment, Intimidation, and Bullying specialist at the high school.

The suit contends the girl was discriminated against and her constitutional rights violated as the district accused the girl of bullying and then issued a one day in-school suspension while she attended the school in the 2016-2017 school year.

That's the tidied-up summary of the lawsuit, as composed by Lehigh Valley Live, which covered the case but couldn't be bothered to post the judge's ruling. So, here's the missing paperwork [PDF] and we'll get into the story behind this via the details contained in the federal judge's order.

This is only the build-up.

On March 8, 2017, K.C. was summoned to the office of Defendant Kevin O’Leary, Assistant Principal at Hackettstown High School. Apparently, K.C. and other students were overheard having a conversation about guns and violence, which O’Leary wished to address. O’Leary asked K.C. whether the conversation concerned the Black Lives Movement; when she told him that she was speaking about confrontations between police and African Americans, O’Leary responded, “all lives matter.” According to K.C., she understood this to mean that she was not to discuss the Black Lives Movement while in school. Apparently, during this conversation O’Leary also remarked that some individuals are lucky to have light-colored skin and pass as Caucasian, which K.C. took as an insult, being that she is bi-racial. However, K.C. was not disciplined for this incident.

This seems like pretty weird behavior from a school official, but not exactly the subject matter of a federal lawsuit. An administrator took a chance to connect with students discussing a serious issue that affects all of them and chose to grind his personal ax instead. A bad decision but not exactly a violation of K.C.'s rights.

THAT

During K.C.’s English class, students were reading the play, “Blood Brothers,” which has a scene where a corrupt police officer treats two suspects differently based on their economic status. As students were picking roles to play, K.C. volunteered to play the police officer, referring to the officer as “the pig.”

ESCALATED

Her English Teacher, Defendant Matlack, reprimanded her for her choice of word and K.C. apologized. This being said, J.G. received a phone call a half hour later from Principal Matthew Scanlon, who explained to her that K.C. was the subject of a Harassment, Intimidation, and Bullying (hereinafter, “HIB”) investigation…The basis of this investigation was K.C.’s use of the word “pig,” which may have offended a student in the class whose father is a police officer…

QUICKLY

Later that day, the school conducted an HIB investigation, which was attended by K.C., Defendant Jennifer Spuckes, an HIB Investigation specialist, and Defendant O’Leary. K.C. apparently recorded this meeting. In any event, during the meeting, K.C. expressed to Defendants Spuckes and O’Leary that use of the word “pig” did not reflect her view of law enforcement and claimed that the classmate who may have been offended by the statement was not present when she uttered the word. According to the Complaint, “Mr. O’Leary and Ms. Spuckes analogized the use of the term ‘pig’ to the use of the term ‘nigger’ and, later, the term ‘fag.” Apparently, both of them asked her how she would feel if someone called her by either name. Despite objecting to these slurs, Defendants O’Leary and Spuckes continued to utter them in front of her. The two also criticized K.C. for continuing to discuss the Black Lives Movement, which they compared to someone overhearing a sexually degrading conversation between two teachers.

Where do you even start? The bullshit "bullying" accusation? Well, the lawsuit states the student supposedly offended by this wasn't even in the room when the "pig" comment was made. K.C. apologized for referring to a fictional cop character as a "pig," even though there was no reason for her to do so.

From there, it's just an embarrassment of richly embarrassing -- if not downright insulting -- conversational tactics by a bunch of disciplinarians who apparently felt compelled to straighten out a gay, multiracial student by [checks notes] using the words "nigger" and "fag" in an entirely abhorrent analogy that presumes "cop" is a race or sexual orientation.

Also: Black Lives Matter is to "sexually-degrading conversation between two teachers" as Colin Kaepernick is to:

A: gumball machine
B: complete works of Proust
C: narcolepsy
D: deciduous

This atrocious trainwreck of judgment calls was followed by a one-day suspension. This, in turn, was followed by the lawsuit.

The defendants all moved to dismiss the lawsuit, arguing K.C. didn't have standing and/or failed to state a claim. The federal court disagrees, finding both offered defenses to be off base. K.C. has standing...

[C]ontrary to Defendants’ assertion, none of Plaintiff’s claims “arise under the school laws” of New Jersey. While the allegations relate to the school’s investigation into K.C.’s alleged bullying, the claims asserted arise under a federal statute, state law, United States Constitution, and the Constitution of the State of New Jersey.

… and has stated a plausible claim.

When reviewing the Complaint, the Court is satisfied, at this stage, that Plaintiffs “pig” comment may constitute protected speech that was allegedly wrongfully infringed. While Defendants contend that her punishment was based on complaints of bullying and the school’s overall concern for preventing disruptive behavior, there is nothing alleged in the Complaint to support same. Second, with regards to the Plaintiffs conversation surrounding the Black Lives Matter movement, it can hardly be argued that discussions involving political or social justice matters do not fall within the protections afforded under the First Amendment…

There were plenty of opportunities to handle this non-issue in a way that would have eliminated the possibility of a civil rights lawsuit. Anything from "doing nothing" to "doing anything but what was done" would have sufficed. But it sounds like these administrators have something against minorities and people who don't automatically assume cops are saints. And that might cost them in the long run.

Filed Under: free speech, hackettstown, jennifer spukes, kathleen matlack, kevin o'leary, pigs, police, students

GDPR Being Used To Try To Disappear Public US Court Docket

from the censorship-for-privacy dept

Way back when the GDPR was still under consideration, we were among those who warned that, in the name of "protecting privacy," Europe was about to create a tool for massive censorship by encapsulating a massive "right to be forgotten." As we noted at the time, a big part of the problem was that the GDPR was written by privacy and data protection experts, with little to no consideration given to free speech experts, who could have told the drafters how "right to be forgotten" rules would likely be abused. The basic idea behind them seems sound -- allowing people to delete data from services they no longer use -- but the ability to turn that into a tool to take down public information is a real problem.

And, now that the GDPR is official, we're already seeing it in practice. Aaron Greenspan, from Plainsite -- a site that hosts court dockets -- recently noted that he had received a RTBF demand from a guy named Michael Francois Bujaldon, who was seeking to disappear a docket involving a case in which Bujualdon was sued for real estate and securities fraud. The complaint against Bujaldon is fairly damning, and while Bujaldon tried to get the case dismissed, the court was not at all impressed. The current docket suggests that the parties are attempting to work out a settlement, but having yourself be a defendant accused of real estate and securities fraud can't be good for the old reputation.

Never fear, however, for the GDPR has a Right to be Forgotten in it, and Bujaldon is apparently using it to delete his own name from the dockets for which he is a defendant:

If you cannot read that request, it says:

Hi,
under Article 21.1 of the General Regulations on Data Protection (RGPD) transcribing European Regulation 2106-679 and updating the provisions of Law 78-17 of 6 January 1978, known as "Informatique et Libert" amended in 2004 (Law 2004-575 on Trust in the Digital Economy - LCEN), which Article 6 | 2 provides that "any information relating to an identified natural person or which can be identified, directly or indirectly, by reference to an identification number or one or more elements specific to that person shall constitute personal data",
I thank you for deleting my personal data, which is my first and last name Michael Franois BUJALDON on this page:

https://www.plainsite.org/dockets/30qmdbpgl/north-dakota-district-court/chabert-et-al-v-bujaldon-et-al/

Please see attached my ID card.

Regards,
Michael Francois BUJALDON

PD: this website has removed this content yet: https://www.pacermonitor.com/public/case/17818391/Chabert_et_al_v_Bujaldon_et_al

So, first, you can feel free to highlight the fact that BUJALDON misspelled his own name in the part where he asks that his name be deleted (he left the c out of Francois). But it does appear to be the case that Pacer Monitor deleted the entire docket for Bujaldon, not just his name. If you go to that link you get:

Which... is pretty damn messed up. This is a public court docket regarding a case accusing Bujaldon of serious fraud. That's not just public information, but it's the kind of information that people clearly want to be public. Yet, Bujaldon has been able to get it shot down the memory hole thanks to the GDPR, and Pacer Monitor has complied and disappeared the entire docket.

While Greenspan clearly didn't want to similarly comply, he later notes that his hosting company forced him to remove Bujaldon's name, and replace it with his initials or else it would suspend his server:

So, now the docket on PlainSite looks like this:

Plainsite's Aaron Greenspan told me that his hosting company, Hetzner, is based in Germany, so perhaps they feel more exposed to GDPR requests, no matter how nonsensical. He also shared with me his email exchange with Hetzner. The company doesn't even seem to want to consider the possibility that the takedown request was illegitimate. Not only does it demand he take Bujaldon's name down within 24 hours, it demands a statement "about how this could have happened and what you intend to do about it."

What?

Someone totally abuses the GDPR's Right to be Forgotten to try to delete evidence of an ongoing lawsuit against himself, and the hosting company's first reaction is to assume that the site is at fault and demand an explanation? And an explanation of how "what" happened? Plainsite is just hosting a federal court docket. It didn't do anything wrong, so why is Hetzner acting as if the site must have done something wrong?

Looking around the web, other sources still have Bujaldon's full name in their dockets -- such as at Justia, Law360 and CourtListener, but one wonders if Bujaldon will seek to target them as well.

This is, quite obviously, an abuse of the GDPR to delete public information (information where it's fairly important that it be public) to hide reputation harming information. Some defenders of the GDPR may argue that since this is an abuse of the GDPR, we shouldn't really blame the GDPR for this result, but rather blame Bujaldon for abusing it, or the various internet companies for caving to his bogus demands. However, this is exactly what free speech experts were warning would happen when the "data protection" experts in the EU insisted that these rules would be fine. They refused to listen, and now we're at the point where important information is actually being censored.

Even worse, we're increasingly hearing talk of exporting the GDPR to the United States, and creating a similar set of rules here, as if they won't be aggressively abused to hide important information like this, as well.

Filed Under: censorship, court docket, courts, docket, free speech, gdpr, michael francois bujaldon, pacer, right to be forgotten
Companies: pacermonitor, plainsite

The DOJ's Rules For Spying On Journalists Get A Bit Flimsy When It Reaches The FISA Court

from the the-first-amendment-matters dept

Back in the spring of 2013, just a month or so before Ed Snowden started revealing all sorts of surveillance shenanigans, there was another important revelation: the Obama DOJ had gone way overboard in spying on journalists, including grabbing the phone records of some AP reporters (without letting them know) and, even worse, telling a court that a Fox News reporter was a "co-conspirator" with a leaker in order to get his phone and email records.

The Obama administration's war on the press has been well documented on this site, with many in the press highlighting how he was the most secretive -- not to mention the most aggressive in abusing the Espionage Act to target leakers and journalists more times than every other President combined prior to him. Once those two stories above came out, the DOJ initially promised to create new guidelines, though, when those guidelines came out, they seemed pretty limited and left a lot of avenues open for the government to spy on journalists, including using National Security Letters -- the meaningless "letters" the FBI/DOJ often hands out like post-it notes, demanding all sorts of info with zero due process, and frequently with an indefinite gag order.

Back in 2015, we noted that the Freedom of the Press Foundation was suing the DOJ demanding the details of the rules used around those national security letters, given that the DOJ didn't want to release them. Earlier this week, the Freedom of the Press Foundation stated that (thanks to the lawsuit), the DOJ has now revealed its rules for seeking FISA Court orders spying on journalists, which are different than its rules for collecting general information from journalists (and different than the rules for the FBI to use NSLs, which is still secret).

As Trevor Timm, Freedom of the Press's executive director, points out, the rules revealed here are "much less stringent" than the (already not that stringent) rules the DOJ came out with in 2015. Basically, the rules state that if the DOJ wants to get a FISC order on a journalist... it has to get approval from the Attorney General or Deputy Attorney General. That's much less than the regular DOJ guidelines that involve a multi-part test to make sure that surveillance of the journalist is actually critical to the investigation and not simply a shortcut to info (or, worse, a way to harm journalistic sources).

If you can't read that, it just says:

This memorandum directs the National Security Division ("NSD") to implement the following procedures that are designed to ensure that the Attorney General ("AG") or Deputy Attorney General ("DAG") reviews those FISA applications targeting known media entities or known members of the media, so that review of such FISA applications occurs at even higher levels than otherwise permitted by FISA and existing AG orders.

And some may argue that having to escalate such FISA applications to the tippy-top of the DOJ represents some level of oversight, that oversight only goes as far as you can trust the Attorney General. And when's the last time we had an Attorney General anyone actually trusted (I can't ever remember having such an AG...). Indeed, our current AG, Jeff Sessions has publicly stated that he wants to prosecute more journalists and has suggested that he's even less interested in balancing the careful interests and rights of journalists than his predecessors.

And, of course, we still have no idea what rules the FBI uses for its NSLs. However, as Timm points out, it's pretty ridiculous that the FISC rules have now been declassified but the FBI's NSL rules remain secret:

If these rules can now be released to the public, why are the FBI’s very similar rules for targeting journalists with due process-free National Security Letters still considered classified? And is the Justice Department targeting journalists with NSLs and FISA court orders to get around the stricter “media guidelines”?

Filed Under: doj, fbi, fisa, fisa court, fisc, guidelines, journalists, national security letters, nsls, privacy, surveillance

State Cops Accidentally Out Their Surveillance Of Anti-Police Groups With Browser Screenshot

from the 'intel-techniques,'-indeed dept

A little opsec goes a long way. The Massachusetts State Police -- one of the most secretive law enforcement agencies in the nation -- gave readers of its Twitter feed a free look at the First Amendment-protected activities it keeps tabs on… by uploading a screenshot showing its browser bookmarks.

Alex Press of Jacobin Magazine was one of the Twitter users to catch the inadvertent exposure of MSP operations.

If you can't read/see the tweet, it says:

the MA staties just unintentionally tweeted a photo that shows their bookmarks include a whole number of Boston’s left-wing orgs

The tweet was quickly scrubbed by the MSP, but not before other Twitter users had grabbed screenshots. Some of the activist groups bookmarked by the state police include Mass. Action Against Police Brutality, the Coalition to Organize and Mobilize Boston Against Trump, and Resistance Calendar.

Here's a closer look at the bookmarks.

The MSP did not deny they keep (browser) tabs on protest organizations. Instead, it attempted to portray this screen of left-leaning bookmarks as some sort of non-partisan, non-cop-centric attempt to keep the community safe by being forewarned and forearmed.

We have a responsibility to know about all large public gatherings of any type and by any group, regardless of their purpose and position, for public safety reasons.

Ok. But mainly these groups? The ones against police brutality and the back-the-blue President? Seems a little one-sided for an "of any type and by any group" declaration.

The statement continues in the same defensive vein for a few more sentences, basically reiterating the false conceit that cops don't take sides when it comes to activist groups and the good people of Massachusetts are lucky to have such proactive public servants at their disposal.

Whatever. If it wasn't a big deal, the MSP wouldn't have vanished the original tweet into the internet ether. The screenshot came from a "fusion center" -- one of those DHS partnerships that results in far more rights violations and garbage "see something, say something" reports than "actionable intelligence". Fusion centers are supposed to be focused on terrorism, not on people who don't like police brutality or the current Commander in Chief.

What this looks like is probably what it is: police keeping tabs on people they don't like or people who don't like them. That's not really what policing is about and it sure as hell doesn't keep the community any safer.

Filed Under: activists, bookmarks, boston, first amendment, massachusetts, massachusetts state police, surveillance

Tanzania Plans To Outlaw Fact-Checking Of Government Statistics

from the dodgy-data dept

Back in April, Techdirt wrote about a set of regulations brought in by the Tanzanian government that required people there to pay around $900 per year for a license to blog. Despite the very high costs it imposes on people -- Tanzania's GDP per capita was under $900 in 2016 -- it seems the authorities are serious about enforcing the law. The iAfrikan site reported in June:

Popular Tanzanian forums and "leaks" website, Jamii Forums, has been temporarily shut down by government as it has not complied with the new regulations and license fees required of online content creators in Tanzania. This comes after Tanzania Communications Regulatory Authority (TCRA) issued a notice to Jamii Forums reminding them that it is a legal offense to publish content on the Internet without having registered and paid for a license.

The Swahili-language site Jamii Forums is back online now. But the Tanzanian authorities are not resting on their laurels when it comes to introducing ridiculous laws. Here's another one that's arguably worse than charging bloggers to post:

[President John] Magufuli and his colleagues are now looking to outlaw fact checking thanks to proposed amendments to the Statistics Act, 2015.

"The principal Act is amended by adding immediately after section 24 the following: 24A.-(1) Any person who is authorised by the Bureau to process any official statistics, shall before publishing or communicating such information to the public, obtain an authorisation from the Bureau. (2) A person shall not disseminate or otherwise communicate to the public any statistical information which is intended to invalidate, distort, or discredit official statistics," reads the proposed amendments to Tanzania's Statistics Act, 2015 as published in the Gazette of the United Republic of Tanzania No. 23 Vol. 99.

As the iAfrikan article points out, the amendments will mean that statistics published by the Tanzanian government must be regarded as correct, however absurd or obviously erroneous they might be. Moreover, it will be illegal for independent researchers to publish any other figures that contradict, or even simply call into question, official statistics.

This is presumably born of a thin-skinned government that wants to avoid even the mildest criticism of its policies or plans. But it seems certain to backfire badly. If statistics are wrong, but no one can correct them, there is the risk that Tanzanian businesses, organizations and citizens will make bad decisions based on this dodgy data. That could lead to harmful consequences for the economy and society, which the Tanzanian government might well be tempted to cover up by issuing yet more incorrect statistics. Without open and honest feedback to correct this behavior, there could be an ever-worsening cascade of misinformation and lies until public trust in the government collapses completely. Does President Magufuli really want that?

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

Filed Under: fact checking, free speech, internet, tanzania

How Regulating Platforms' Content Moderation Means Regulating Speech - Even Yours.

from the democratization-of-the-Internet dept

Imagine a scenario:

You have a Facebook page, on which you've posted some sort of status update. Maybe an update from your vacation. Maybe a political idea. Maybe a picture of your kids. And someone comes along and adds a really awful comment on your post. Maybe they insult you. Maybe they insult your politics. Maybe they insult your kids.

Would you want to be legally obligated to keep their ugly comments on your post? Of course not. You'd probably be keen to delete them, and why shouldn't you be able to?

Meanwhile, what if it was the other way around: what if someone had actually posted a great comment, maybe with travel tips, support for your political views, or compliments on how cute your kids are. Would you ever want to be legally obligated to delete these comments? Of course not. If you like these comments, why shouldn't you be able to keep sharing them with readers?

Now let's expand this scenario. Instead of a Facebook page, you've published your own blog. And on your blog you allow comments. One day you get a really awful comment. Would you want to be legally obligated to keep that comment up for all to see? Of course not. Nor would you want to be legally obligated to delete one that was really good. Think about how violated you would feel, though, if the law could force you to make these sorts of expressive decisions you didn't want to make and require you to either host speech you hated or force you to remove speech that you liked.

And now let's say that your website is not just a blog with comments but a larger site with a message board. And let's say the message board is so popular that you've figured out a way to monetize it to pay for the time and resources it takes to maintain it. Maybe you charge users, maybe you run ads, or maybe you take a cut from some of the transactions users are able to make with each other through your site.

And let's say that this website is so popular that you can't possibly run it all by yourself, so you run it with your friend. And now that there are multiple people and money involved, you and your friend decide to form a company to run it, which both gives you some protection and makes it easier to raise money to invest in better equipment and more staff. Soon the site is so popular that you've got dozens, hundreds, or even thousands of people employed to help you run it. And maybe now you've even been able to IPO.

And then someone comes along and posts something really awful on your site.

And someone else comes along and posts something you really like.

Which gets to the point on this post: if it was not OK for the law to be able to force you to maintain the bad comments, or to delete the good ones, when you were small, at what point did it become OK when you got big – if ever?

There is a very strong legal argument that it never became OK, and that the First Amendment interest you had in being able to exercise the expressive choices about what content to keep or delete on your website never went away – it's just that it's easier to see how the First Amendment prevents being forced to make those choices when the choices are so obviously personal (as in the original Facebook post example). But regardless of whether you host a small personal web presence, or are the CEO of a big commercial Internet platform, the principle is the same. There's nothing in the language of the First Amendment that says it only protects editorial discretion of small websites and not big ones. They all are entitled to its protection against compelled speech.

Which is not to say that as small websites grow into big platforms there aren't issues that can arise due to their size. But it does mean that we have to be careful in how we respond to these challenges. Because in addition to the strong legal argument that it's not OK to regulate websites based on their expressive choices, there's also a strong practical argument.

Ultimately large platforms are still just websites out on the Internet, and ordinarily the Internet allows for an unlimited amount of websites to come into being. Which is good, because, regardless of the business, we always want to ensure that it's possible to get new entrants who could provide the same services on terms the market might prefer. In the case of platform businesses, those may be editorial terms. Naturally we wouldn't want larger companies to be able to throw up obstacles that prevent competitors from becoming commercially viable, and to the extent that a large company's general business practices might unfairly prevent competition then targeted regulation of those specific practices may be appropriate. But editorial policies are not what may prevent another web-based platform from taking root. Indeed, the greater the discontent with the incumbent's editorial policies, the more it increases the public's appetite for other choices.

The problem is, if we regulate big platforms by targeting their editorial policies, then all of a sudden that loss of editorial freedom itself becomes a barrier to having those other choices come into being, because there's no way to make rules that would only apply to bigger websites and not also smaller or more personal ones, including all the nascent ones we're trying to encourage. After all, how could we? Even if we believed that only big websites should be regulated, how would we decide at what stage of the growth process website operators should lose their right to exercise editorial discretion over the speech appearing on their sites? Is it when they started running their websites with their friends? Incorporated? Hired? (And, if so, how many people?) Is it when they IPO'd? And what about large websites that are non-profits or remain privately run?

Think also about how chilling it would be if law could make this sort of distinction. Would anyone have the incentive to grow their web presence if its success meant they would lose the right to control it? Who would want to risk building a web-based business, run a blog with comments, or even have a personal Facebook post that might go viral, if, as a consequence of its popularity, it meant that you no longer could control what other expression appeared on it? Far from actually helping level the playing field to foster new websites seeking to be better platforms than the ones that came before, in targeting editorial policies with regulation we would instead only be deterring people from building them.

Filed Under: bias, content, free speech, regulations, social media