Professor Says Threats Of Retaliation By China Stopped Publication Of His Book Revealing Chinese Influence In Australia

from the expect-much-more-of-this dept

We've just written about how the Chinese government wanted to censor articles published by two academic publishers, Cambridge University Press (CUP) and Springer. After an initial wobble, CUP ultimately refused, while Springer by contrast decided to kowtow to the authorities. Those incidents concerned the publication in China of articles the Chinese didn't like. Now it seems the latter are extending their campaign against inconvenient facts to other countries, in this case Australia:

Prominent Charles Sturt University academic Clive Hamilton said Allen & Unwin was ready to publish his manuscript Silent Invasion, but last week informed him it could no longer proceed because it was worried about defamation action.

"Allen & Unwin said that they were worried about retaliation from Beijing through a number of possible avenues including legal threats, orchestrated by Beijing, and they decided it was too big a risk and so therefore pulled the plug and returned the rights to me," Professor Hamilton said.

As the article on ABC News explains, "Silent Invasion" is about the Chinese Communist Party's activities and growing influence in Australia -- obviously a highly sensitive topic for China. In an email to the company, obtained by ABC News, Professor Hamilton's former publishers, Allen & Unwin, wrote about what it saw as "potential threats" if it published his book:

The most serious of these threats was the very high chance of a vexatious defamation action against Allen & Unwin, and possibly against you personally as well.

It's a little hard to see how an entire nation might sue successfully for defamation, but that's not the point. Once again, the mere threat of litigation was enough to cause someone -- in this case a publisher -- to self-censor. Interestingly, the ABC News article notes that the Australian government is expected to unveil soon new legislation to counter foreign interference in the country, which suggests that it is becoming a serious problem. We can expect more such attempts to censor overseas sources of information it doesn't like from the increasingly self-confident and intransigent China.

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Filed Under: australia, censorship, china, clive hamilton, silent invasion, threats
Companies: allen & unwin

Ninth Circuit Lets Us See Its Glassdoor Ruling, And It's Terrible

from the making-secret-jurisprudence-public-precedent dept

Well, I was wrong: last week I lamented that we might never know how the Ninth Circuit ruled on Glassdoor's attempt to quash a federal grand jury subpoena served upon it demanding it identify users. Turns out, now we do know: two days after the post ran the court publicly released its decision refusing to quash the subpoena. It's a decision that doubles-down on everything wrong with the original district court decision that also refused to quash it, only now with handy-dandy Ninth Circuit precedential weight.

Like the original ruling, it clings to the Supreme Court's decision in Branzburg v. Hayes, a case where the Supreme Court explored the ability of anyone to resist a grand jury subpoena. But in doing so it manages to ignore other, more recent, Supreme Court precedents that should have led to the opposite result.

Here is the fundamental problem with both the district court and Ninth Circuit decisions: anonymous speakers have the right to speak anonymously. (See, e.g., the post-Branzburg Supreme Court decision McIntyre v. Ohio Elections Commission). Speech rights also carry forth onto the Internet. (See, e.g., another post-Branzburg Supreme Court decision, Reno v. ACLU). But if the platforms hosting that speech can always be forced to unmask their users via grand jury subpoena, then there is no way for that right to ever meaningfully exist in the context of online speech.

Yet neither of these more recent Supreme Court decisions seems to have had any impact on either the district court or Ninth Circuit's thinking. Instead both courts seem to feel their hands are tied, that in the 1970s the Supreme Court set forth, once and for all, the rule that no one can ever resist federal grand jury subpoenas, except in very limited circumstances, and that this ruling was the final word on their enforceability, no matter what the context. But as I wrote in the previous post, what the Supreme Court said in Branzburg about the enforceability of grand jury subpoenas only related to those that arose from a specific context, journalists shielding sources, and the only question before the court then was whether journalists, as journalists, had the ability to refuse them. The Supreme Court never considered whether there might be any other set of circumstances where grand jury subpoenas could be resisted. In Branzburg the Supreme Court had only considered the question with respect to journalists.

In fact, to make Branzburg apply to Glassdoor, the Ninth Circuit had to try to squeeze Internet intermediaries like Glassdoor into the shoes of reporters and make them seem like one and the same, even when they are not:

Although Glassdoor is not in the news business, as part of its business model it does gather and publish information from sources it has agreed not to identify. It argues that “[a]nonymity is an essential feature of the Glassdoor community,” and that “if employees cannot speak anonymously, they often will not speak at all,” which will reduce the availability of “information about what it is like to work at a particular job and how workers are paid.” In other words, forcing Glassdoor to comply with the grand jury’s subpoena duces tecum will chill First Amendment-protected activity. This is fundamentally the same argument the Supreme Court rejected in Branzburg.

With all due respect to the Ninth Circuit panel, this is not fundamentally the same argument the Supreme Court rejected in Branzburg. As I wrote last week, to view the role of an intermediary platform as the same thing as an intermediary journalist is to fundamentally misunderstand the role of the intermediary platform in intermediating information. It also fundamentally misunderstands the First Amendment interests at stake. This case isn't about the press-related First Amendment rights at issue in Branzburg; they are the speech-related First Amendment rights of online speakers. And it's not the platform's First Amendment interests that Glassdoor is primarily trying to vindicate; it is the interests of the platform's users. Yet here, too, the Ninth Circuit panel misunderstands those interests when it dismisses out of hand the idea that they might have any right not to be unmasked:

Furthermore, Branzburg makes it clear that Glassdoor’s users do not have a First Amendment right not to testify before the investigating grand jury about the comments they initially made under the cloak of anticipated anonymity. See id. at 695 (“[I]f the authorities independently identify the informant, neither his own reluctance to testify nor the objection of the newsman would shield him from grand jury inquiry . . . .”). Therefore, Glassdoor cannot refuse to turn over its users’ identifying information on the grounds that it is protecting its users’ underlying rights.

"Anticipated anonymity" is a pretty grotesque way of describing a constitutional right people expected to be protected by when they chose to speak online. And it suggests a misreading of Branzburg, which never considered speech interests that were truly analogous to those of Internet platform users. Even if there's no First Amendment right to speak anonymously with a reporter it does not follow that there is no First Amendment right to speak anonymously online at all.

But that's the upshot to this decision: people who wish to speak anonymously online, in any capacity, won't be able to. They will forever be vulnerable to being unmasked by any federal criminal investigation, just so long as the investigation is not being done in bad faith. Nothing else can provide any sort of check on these unmasking demands, regardless of any other interest in play – including those of innocent speakers simply trying to avail themselves of their First Amendment right to speak anonymously, and all those who benefit from that speech.

This is a pretty stark result, and one that stands to affect Internet speakers everywhere. Not only does it threaten those anywhere a grand jury within the Ninth Circuit will be able to reach, but it will serve as persuasive authority governing the enforceability of subpoenas from grand juries in other circuits. It's also one that stands to have this dramatic effect after having been whipped up in secret, with a hidden docket and adamant refusal to accept amicus support. (Although two amici are listed in the caption, it does not appear that either brief was ultimately accepted by the court, much less actually read and considered.) Like anyone who insists on going it alone, without the help of their friends, the results of that obstinate independence have been predictably disastrous. Friends don't let friends inadvertently undermine the First Amendment, and I wish the court had let those of us able to help it see the full implications of this ruling be that friend.

Filed Under: 9th circuit, anonymity, free speech, secrecy, subpoena, transparency
Companies: glassdoor

Some Thoughts On Gag Rules And Government Unmasking Demands

from the dissent-dies-in-the-dark dept

The news about the DOJ trying to subpoena Twitter calls to mind an another egregious example of the government trying to unmask an anonymous speaker earlier this year. Remember when the federal government tried to compel Twitter to divulge the identity of a user who had been critical of the Trump administration? This incident was troubling enough on its face: there’s no place in a free society for a government to come after a critic of it. But largely overlooked in the worthy outrage over the bald-faced attempt to punish a dissenting voice was the government’s simultaneous attempt to prevent Twitter from telling anyone that the government was demanding this information. Because Twitter refused to comply with that demand, the affected user was able to get counsel and the world was able to know how the government was abusing its authority. As the saying goes, sunlight is the best disinfectant, and by shining a light on the government's abusive behavior it was able to be stopped.

That storm may have blown over, but the general issues raised by the incident continue to affect Internet platforms – and by extension their users and their speech. A significant problem we keep having to contend with is not only what happens when the government demands information about users from platforms, but what happens when it then compels the same platforms to keep those demands a secret. These secrecy demands are often called different things and are born from separate statutory mechanisms, but they all boil down to being some form of gag over the platform’s ability to speak, with the same equally troubling implications. We've talked before about how important it is that platforms be able to protect their users' right to speak anonymously. That right is part and parcel of the First Amendment because there are many people who would not be able to speak if they were forced to reveal their identities in order to do so. Public discourse, and the benefit the public gets from it, would then suffer in the absence of their contributions. But it's one thing to say that people have the right to speak anonymously; it's another to make that right meaningful. If civil plaintiffs, or, worse, the government, can too easily force anonymous speakers to be unmasked then the right to speak anonymously will only be illusory. For it to be something speakers can depend on to enable them to speak freely there have to be effective barriers preventing that anonymity from too casually being stripped by unjust demands.

One key way to prevent illegitimate unmasking demands is to fight back against them. But no one can fight back against what they are unaware of. Platforms are thus increasingly pushing back against the gags preventing them from disclosing that they have received discovery demands as a way to protect their communities of users.

While each type of demand varies in its particulars (for instance a civil subpoena is different from a grand jury subpoena, which is different than an NSL, which is different from the 19 USC Section 1509 summons that was used against Twitter in the quest to discover the Trump critic), as well as the rationale for why the demanding party might have sought to preserve the secrecy around the demand with some sort of gag, all of these unmasking demands still ultimately challenge the durability of an online speaker's right to remain anonymous. Which is why rulings that preserve, or, worse, even strengthen, gag rules are so troubling because they make it all the more difficult, if not outright impossible, to protect legitimate speech from illegitimate unmasking demands.

And that matters. Returning to the example about the fishing expedition to unmask a critic, while it's great that in this particular case the government quickly dropped its demand on Twitter, questions remain. Was Twitter the only platform the government went after? Perhaps, but how would we know? How would we know if this was the only speech it had chosen to investigate, or the 1509 summons the only unmasking instrument it had used to try to identify the speaker? If the other platforms it demanded information from were, quite reasonably, cowed by an accompanying demand for secrecy (the sanctions for violating such an order can be serious), we might never know the answers to these questions. The government could be continuing its attacks on its apparently no-longer-anonymous critics unabated, and speakers who depended on anonymity would unknowingly be putting themselves at risk when they continued to speak.

This state of affairs is an affront to the First Amendment. The First Amendment was intended in large part to enable people to speak truth to power, but when we make it too hard for platforms to be partners in protecting that right it entrenches that power. There are a lot of ways that platforms should have the ability to be that partner, but one of them must be the basic ability to tell us when that right is under threat.

Filed Under: anonymity, free speech, gag orders, gag rules, governments, nsls, subpoenas, unmasking, warrants

Equustek No-Shows Legal Challenge Of Canadian Court Order Demanding Google Delist Sites Worldwide

from the and-the-links-will-be-going-right-back-up dept

Earlier this year, Canada's top court upheld a ridiculous, truly troubling ruling involving a company called Equustek Solutions. Equustek managed to get three consecutive courts to agree they had jurisdiction to force Google to block supposedly-infringing websites worldwide.

It was a rare show of audacity from the usually ultra-polite country. According to the court's reasoning, the only way to prevent continued "irreparable harm" to the plaintiff was to order Google to prevent anyone, anywhere in the world from accessing the site. That the court had no jurisdiction beyond the Canadian borders was treated as irrelevant.

Google responded to this insane ruling by filing a lawsuit in its own state, asking a judge to find the Canadian court's overreach unenforceable in the United States. It cited both Section 230 of the CDA and the First Amendment in support of its arguments.

This could have provided for some very interesting courtroom arguments. But, alas, it appears Equustek has no interest in presenting its case anywhere it doesn't have the homefield advantage. Joe Mullin of Ars Technica has more details:

It looks like Google is going to win that case, but not as a result of any high-minded legal arguments. Its opponent simply failed to show up. In a motion (PDF) filed Tuesday, Google said that Equustek CEO Robert Angus faxed Google's lawyers a letter "stating that Defendants would not be defending this action."

Equustek hasn't hired a US lawyer or shown up to any court proceeding, so Google will move for a default judgment. The company will then ask for a permanent injunction, preventing the Canadian order from being enforced in the US.

Given the authorities cited by Google in its lawsuit (Sec. 230, First Amendment), it's likely to obtain this permanent injunction. It likely would have obtained it anyway, even if Equustek hadn't chosen to opt out of the litigation. Equustek knows this, which is why it's not willing to spend any of its money fighting a losing battle.

Hopefully, the court will have a few things to say about the Canadian court's overreach when it hands this (admittedly easy) win to Google. It's all well and good to use home courts to grant you injunctions based on local law. It's absolutely appalling when a court decides it can demand compliance far outside of its jurisdiction.

[Addendum: shortly after this post had gone to bed (but fortunately before I had) the court's ruling arrived. As expected, the court [PDF] finds in favor of Google, pointing to its Section 230 immunity.

First, there is no question that Google is a “provider” of an “interactive computer service.” See 47 U.S.C. § 230(f)(2) (“The term ‘interactive computer service’ means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.”); O’Kroley v. Fastcase, Inc., 831 F.3d 352, 355 (6th Cir. 2016) (“Google is an interactive computer service, an entity that provides ‘access by multiple users to a computer server.’ ”); Parker v. Google, Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006) (“[T]here is no doubt that Google qualifies as an “interactive computer service.”); Gonzalez v. Google, Inc., No. 16-cv-03282-DM, 2017 WL 4773366, at *9 (N.D. Cal. Oct. 23, 2017) (finding that Google is a provider of an interactive computer service).

Second, Datalink—not Google—“provides” the information at issue. Google crawls third-party websites and adds them to its index. When a user queries Google’s search engine, Google responds with links to relevant websites and short snippets of their contents. Id. Google’s search engine helps users discover and access content on third-party websites, but it does not “provide” that content within the meaning of Section 230...

Third, the Canadian order would hold Google liable as the “publisher or speaker” of the information on Datalink’s websites. The Supreme Court of Canada ordered Google to “de-index the Datalink websites” from its global search results because, in the Court’s view, Google is “the determinative player in allowing the harm to occur” to Equustek... The Canadian order treats Google as a publisher because the order would impose liability for failing to remove third-party content from its search results.

Google meets the requirements for Section 230 immunity. As such, the Court finds that Google is likely to prevail on the merits of its Section 230 argument.

Likewise, the court finds Google would be harmed by the Canadian court's decision.

Google is harmed because the Canadian order restricts activity that Section 230 protects. In addition, the balance of equities favors Google because the injunction would deprive it of the benefits of U.S. federal law.

[...]

An injunction would also serve the public interest. Congress recognized that free speech on the internet would be severely restricted if websites were to face tort liability for hosting usergenerated content. It responded by enacting Section 230, which grants broad immunity to online intermediaries.

The short opinion closes out with a few choice words for the overreaching Canadian court.

The Canadian order would eliminate Section 230 immunity for service providers that link to third-party websites. By forcing intermediaries to remove links to third-party material, the Canadian order undermines the policy goals of Section 230 and threatens free speech on the global internet.

The First Amendment question goes unexplored because Section 230 immunity already provides Google with all it needs to secure an injunction. But the coda on the decision makes it clear the First Amendment question wouldn't go the Canadian court's way.]

Filed Under: california, canada, cda 230, censorship, default judgment, first amendment, free speech, jurisdiction, us
Companies: equustek, google

Judge Smacks Down Another Anonymous Cop's Lawsuit Against Black Lives Matter

from the tired:-filing-RICO-suits;-wired:-suing-social-movements dept

For the second time in less than a month, a judge -- the same judge -- has tossed out lawsuits from anonymous law enforcement officers filed against the social movement known as Black Lives Matter. Much like the no-name cop in the other idiotic lawsuit, this anonymous cop swore up and down (as one tends to do in legal filings) Black Lives Matter was responsible for injuries he sustained during an ambush.

Judge Brian Jackson warned the unnamed plaintiff his suit was on its way to the dustbin of history shortly after tossing the first officer's suit -- one that included a hilarious attempt to hold a Twitter hashtag responsible for injuries sustained during a protest. Finding this suit to be more of the same, the judge warned the officer to start making some actual actionable claims or face dismissal. No such claims have been stated apparently, as Courthouse News Service reports.

“Based on the facts alleged, plaintiff’s counsel has failed to plead a plausible claim that defendants can be held liable for Officer Smith’s injuries,” the judge wrote in Friday’s ruling. “Instead, plaintiff’s counsel simply asserts—without pointing to any supporting facts—that the shooter was acting ‘as [‘Black Lives Matter’] leaders had directed its followers.’”

Jackson ruled that isn’t enough to assert a claim against the movement and McKesson.

He said Grodner had not shown that there was “any contact either directly or indirectly” between Black Lives Matter and the shooter, Gavin Long, a 29-year-old former Marine from Kansas City, Mo.

Gavin Long shot and killed three officers a few days after Alton Sterling was killed by Baton Rouge police officers. The anonymous officer suing Black Lives Matter was injured in the shooting. As tragic as the whole situation is, it still doesn't justify suing a non-entity with allegations a social movement somehow pushed a person to kill and injure police officers. There's no case to be made, as the court points out in a paragraph both devastating and succinct. From the opinion [PDF]:

All of Plaintiff’s Counsel’s allegations against Defendants suffer from the same deficiency: the facts pleaded do not give rise to a plausible inference that Defendants are liable for the conduct alleged. Plaintiff’s Counsel’s rambling Complaint focuses almost exclusively on events in other states, in other cities, and at other periods of time entirely unconnected to the shooting that gave rise to this cause of action. To the extent the Complaint describes allegations against named Defendants, such general allegations consist either of protected free speech activity or wholly conclusory statements that do not meet the plausibility standard required to survive a motion to dismiss.

Suing Black Lives Matter for being shot at by some rando criminal is like suing Blue Lives Matter every time an officer kills or wounds a citizen. Neither nebulous entity is responsible for the actions of an individual. Both are social movements incapable of being sued, even if someone could somehow provide a credible link between the movement's rhetoric and the plaintiff's injuries. It's an impossible bar to reach because this sort of evidence simply does not exist.

Attorney Donna Grodner -- the same attorney behind the other failed v. Black Lives Matter lawsuit -- asked the court for a mulligan. Denied.

The Court finds that leave to amend would be futile. In response to the Court’s Order to Show Cause, Plaintiff’s Counsel requests the opportunity to amend the Complaint only to add more of the same: allegations against Defendants unconnected to the incident giving rise to the tragic shooting of Officer Smith. Plaintiff’s Counsel states that it can provide “more factual allegations about each of the leaders and what each has done personally in his/her role as a founder/leader to invoke violence against police . . . to provide ample evidence that the leaders and founders incited a nation to violence against police.” Notably, Plaintiff’s Counsel still does not offer to provide any facts that connect the words or actions of named Defendants to the actions of the individual who ultimately shot Officer Smith. Generalized allegations that named Defendants expressed anti-police sentiments, without temporal or causal connection to the shooting, are insufficient to state a plausible claim for relief.

Perhaps the court was already well aware of what laid ahead if it allowed Ms. Grodner to better explain herself. Here's Judge Brian Jackson's statement on a motion filed by Grodner in a case brought against her for professional misconduct.

The Court granted Ms. Grodner's request, ordering that Ms. Grodner's Response be entered as "a new docket entry." (Doc. 3 at p. 1). Despite its styling, Ms. Grodner's rambling 18-page pleading was largely unresponsive to the Court's Show Cause Order, devoting significant portions to irrelevant issues, (Doc. 4 at pp. 3-4, 10-17 (discussing whether Ms. Grodner is subject to sanction for violation of Federal Rule of Civil Procedure 11, 28 U.S.C. § 1927, and/or her performance in unrelated cases)), non sequiturs, (see id. at p. 14 n.17 ("The secretary, who made this error, no loner [sic] works for Ms. Grodner, because she had to leave once she was accepted into the Harvard Law School on a full scholarship."), and ad hominem attacks, (see id. at p. 15 ("This Court, itself, is not immune from human error."); id. at p. 15 n.21 ("The undersigned has not attempted to comb the docket of this Court to see if other human errors may be found, but suspects that there are other harmless errors."); id. at p. 17 ("There are a couple of admitted instances of human error, but this Court itself has committed human error.")).

That's the second loss for Grodner in two consecutive, spectacularly bad lawsuits -- both argued in front of a judge that has had his patience tested by the attorney in earlier cases. It's unclear who's money she's wasting filing these suits. It could quite possibly be her own. If her anonymous cop clients were paying in full, it's unlikely she would have attempted to crowdfund their legal offense. Her YouCaring fundraising page for the lawsuits was deleted by the platform earlier this year for violating its rules.

“In alignment with our mission, we removed this fundraiser because it was not within our community guidelines around promoting harmony,” YouCaring Chief Marketing Officer Maly Ly told PBS NewsHour Weekend in an email. “We are not the right platform to air grievances, or engage in contentious disputes or controversial public opinion.”

Hopefully, this will deter copycat lawsuits. As amusing as the judicial smackdowns are to witness, they're a waste of everyone's time, including this particular judge's.

Filed Under: black lives matter, free speech, lawsuit, police

NY Times Uncritically Says Fake News Debate Supports Chinese Style Censorship

from the did-we-not-warn-of-this? dept

It used to be a laughable claim: that the US should emulate the Great Firewall of China and support much greater internet censorship. Sure, you'd have people like the MPAA's Chris Dodd or U2 frontman Bono cheer on Chinese censorship as a good example of how to censor the internet (in their cases, to block infringing content), but most people still remained rightly horrified by the idea that the answer to "bad" content online is a massive censorship regime. But, apparently, that may be changing.

Last year, right after the election, we directly warned that everyone freaking out about "fake news" on Facebook would eventually lead to calls to censor the internet a la China. And, now the NY Times has taken a big step in that direction, by posting a ridiculous article talking about how China has been "vindicated" by its approach to censoring the internet:

For years, the United States and others saw this sort of heavy-handed censorship as a sign of political vulnerability and a barrier to China’s economic development. But as countries in the West discuss potential internet restrictions and wring their hands over fake news, hacking and foreign meddling, some in China see a powerful affirmation of the country’s vision for the internet.

“This kind of thing would not happen here,” Mr. Zhao said of the controversy over Russia’s influence in the American presidential election last year.

Of course, as Ben Thompson pointed out, the reason it won't happen in China is because there are no Presidential elections in China:

While the NY Times does attempt to present some "balance" in the form of "concerns" from human rights activists, it also celebrates some of the internet's censors in China, and says that the success of Chinese internet companies is proof that censorship doesn't appear to harm innovation. The article closes on a chilling example of a "volunteer" spying on fellow internet users, and handing them happily over to the police -- and suggesting that this is a good way to stop bad people online:

In a restaurant called Europa, Mr. Zhao — who declined to disclose details of where and how he works — described China’s system not as “Big Brother” so much as a younger brother, which he is, protecting children, like those of his sister, from harmful material.

“Even though the internet is virtual, it is still part of society,” he added. “So in any space I feel no one should create pornographic, illegal or violent posts.”

In his new capacity, he scours Weibo in search of the lurid and illicit. Some posts, he explained, are thinly veiled solicitations for pornography or prostitution, including one message he reported to the police the other day for using what he said was a euphemism for selling sex.

When he reports abuse, it is the police who follow up. He excitedly displayed his smartphone to show the latest of his more than 3,000 followers on Weibo: the division of the Beijing police that monitors the internet.

“Normally, if you don’t do bad things, you don’t get followed by the police,” he said. “I think this — for someone who has been online for so many years — is really special.”

Those paragraphs should be chilling for those who believe in free speech or who have even the slightest knowledge of the history of authoritarianism and how governments -- including China's -- stamp out alternative and reformist viewpoints with an iron fist. It should be antithetical to how we operate here, and to have the NY Times post a pretty glowing profile of the Great Firewall of China is downright frightening.

Filed Under: china, fake news, free speech, great firewall