Federal Judge Says ICE’s ‘Knock And Talk’ Variant Violates The Constitution

Legal Issues

from the do-it-right-or-get-ready-to-not-do-it-at-all dept

ICE (Immigration and Customs Enforcement) tends to treat the Constitution as some ticky-tack policy its officers can safely ignore.

That’s not to say ICE believes the Constitution does not exist. It probably at least realizes it exists. After all, it’s a US federal agency. What it firmly believes is that the Constitution provides no protection for the people it targets. As far as it seems to be concerned, immigrants (undocumented or otherwise) aren’t beneficiaries of these enshrined rights.

That’s where it’s wrong. While the Constitution provides almost no protection to foreigners residing abroad, these rights are extended to foreigners residing in the United States, whether they’re doing it legally or not.

ICE believes otherwise, even though it’s wrong to do so. But it seems comfortable doing this — something that is likely the result of multiple presidents declaring some sort of “war” on illegal immigration, often as a force multiplier for the ongoing failures of the War on Terror and the War on Drugs.

Fortunately for people residing in the US (perhaps not legally) who aren’t causing any trouble otherwise (fact: immigrants commit far fewer crimes than natural-born US residents), our nation’s courts aren’t quite as convinced everyone ICE targets has no access to constitutional rights.

This ruling [PDF] — handed down by George W. Bush appointee Otis Wright II — affirms the rights of immigrants and firmly reminds ICE it must abide by the Constitution no matter who its purported targets are. (h/t Courthouse News)

This long-running class action lawsuit has already secured the plaintiffs a (partial) win against ICE. A settlement over “ruse” tactics deployed by ICE agents resulted in the agency agreeing to revamp this part of its enforcement efforts. The latest ruling knocks down ICE’s bizarre (and unconstitutional) interpretation of “knock and talk” efforts.

“Knock and talk” is a well-recognized tactic of law enforcement. It involves officers knocking on the doors of suspected criminals or witnesses of suspected crimes and attempting to engage citizens in voluntary conversations about this criminal activity.

But that’s not how ICE handles “knock and talk.” It feels this is just the foreplay it has to endure before sealing the deal.

From the decision:

While “knock and talks”—as defined by the United States Supreme Court—are considered constitutional, “knock and talks”—as defined and executed by U.S. Immigration and Customs Enforcement (“ICE”)—are not. Considering the policies and practices governing how ICE conducts its “knock and talks,” the more accurate title for certain law enforcement operations would be “knock and arrests.”

It appears we’re immediately back in “ruse” territory. ICE officers perform knock-and-talks for the sole purpose of arresting undocumented immigrants. While knock-and-talks may help law enforcement officers locate criminals, they cannot effect an arrest without witnessing criminal activity or being in possession of an arrest warrant.

ICE thinks these stipulations don’t apply to it. It approaches residences, trampling all over the curtilage, while armed with nothing more than “administrative warrants,” which are not nearly the same thing as criminal warrants.

That’s not how this works, says the court. ICE may feel it’s only screwing with non-Americans, but these people are still beneficiaries of constitutional rights, even if they might be a bit more limited. “Limited” does not mean “nonexistent.” Just ask any cop who’s been bench slapped by a court for assuming the same thing about US born minors attending public schools.

But this casual abuse of the Constitution has worked out well for ICE. According to data provided to the court, “knock and talk” tactics contributed to more than a quarter of ICE’s “residential” arrests. And while the rest of US law enforcement seems to comprehend the innate constitutional restraints on knock-and-talk interactions, ICE actually instructs agents to disregard these long-held restrictions.

The Handbook defines a “knock and talk” as the “[a]rrest [of] an individual by knocking on the door of the residence and either making an entry or calling the subject outside.”

Left unsaid in this training document is the fact that US law enforcement officers need a valid criminal arrest warrant to effect an arrest. It also appears to gloss over the fact that officers need either permission or exigent circumstances to enter a residence without a valid search warrant.

And even these ample permissions were expanded by ICE’s interlopers. The court details multiple incidents where officers entered backyards, let themselves into fenced yards, or otherwise treated wholly private areas as comparable to doors and areas accessible by other government employees (like post office workers). It also notes cases where people were immediately arrested for doing nothing more than agreeing to step out of their homes to answer a few questions from ICE agents.

As the court points out, these obvious violations of Fourth Amendment rights were “consistent with the training policies and procedures of ICE,” which means the agency was actively encouraging rights violations by its officers.

Judge Wright, however, isn’t willing to issue an injunction blocking ICE from engaging in these tactics in the future. Fortunately, his ruling doesn’t allow ICE to continue with “knock and talk” business as usual either.

[T]he Court deems it appropriate to vacate Defendants’ unlawful policies. Vacatur, as compared to an injunction, is a “less drastic remedy” that does not “compel[] nor restrain[] further agency decision-making.” Unlike an injunction, “a vacatur does not restrain the enjoined defendants from pursuing other courses of action to reach the same or a similar result as the vacated agency action.”

Here, either vacatur or an injunction would suffice to strike down ICE’s “knock and talk” policy, but only an injunction would restrain Defendants from, in the future, attempting to institute a modified or amended version of the “knock and talk” policy that complies with constitutional limitations […] and the Court finds the less drastic remedy of vacatur to be sufficient to redress the “Knock and Talk” Class’s injury. By opting for vacatur, Defendants have the opportunity to develop a policy and practice that reaches the same or similar result as the vacated agency action, but in a constitutional manner.

So, it’s a partial win. ICE can still use knock-and-talk tactics like any other US law enforcement agency. But now it will have to do it like everyone else does (or is supposed to do): by securing actual criminal arrest warrants before arresting people and respecting curtilage limitations set down in numerous court rulings. ICE can still try to dupe someone into stepping outside just so they can be arrested. But it will have to have the proper paperwork in hand and without cutting through people’s backyards to get to the door most likely to dump an immigrant in its lap.

Filed Under: 4tha mendment, 5th amendment, ice, knock and talk

Nebraska Sues TikTok For Claiming To Be Family Friendly

Legal Issues

from the the-biggest-scourge-is-the-dancing-kids-app dept

Another day, another dumb lawsuit against TikTok.

We’ve seen school districts and parents suing TikTok on the basis of extremely weird claims of “kids used TikTok, some bad stuff happened to kids, TikTok should be liable.”

But in the past year, it seems that a bunch of state AGs have decided to sue TikTok as well. I’ve lost track, but in the last year or so, I believe Arkansas, Indiana, Utah, Kansas, and Iowa have all sued TikTok using some theory or another about how “kids like this app” must violate some law. It’s impossible to keep up with the state of all of these lawsuits, though I know that Indiana’s lawsuit was tossed out, though somehow Arkansas’ lawsuit has been allowed to proceed.

Perhaps buoyed by the success in Arkansas, Nebraska has also jumped into the state fray, suing TikTok for being “deceptive” in claiming the platform is family friendly. You can read the full complaint here or embedded below.

Like the other lawsuits, this one is a hodgepodge of moral panic and conspiracy thinking. It has all the hits: mental health! eating disorders! suicide! China!

But the key to the complaint is that by saying that it’s a family friendly app, while the moral panic narrative says “bad things happen to kids on TikTok,” it allows Nebraska’s AG to claim that this is a “deceptive” practice by the company:

Despite such documented knowledge, Defendants continually misrepresent their platform as safe and appropriate for kids and teens, marketing the app as “Family Friendly” and suitable for users 12 and up, reassuring parents, educators, policymakers, and others….

Of course, the end result of nonsense lawsuits like this is that no website will ever do anything in the future to try to be “family friendly” again, because if something bad then happens, AGs will go hog-wild in suing.

It’s so incredibly misdirected and short-sighted.

Like all the others, this is really a lawsuit about politicians not liking the content on TikTok, not liking that the kids these days like TikTok, and not liking that TikTok happens to be partially owned by a Chinese company.

But they can’t quite come out and say that, so they have to come up with some nonsense way of bringing these lawsuits. “Omg, we have to protect the children” appears to be one of the more popular ones, despite the near total lack of any evidence of any inherent harm in TikTok (or other social media) on kids.

Yes, some kids are suffering from mental health problems. And yes, there are some discussions on TikTok that are disturbing. But most of that disturbing content remains protected speech under the First Amendment. Just because people with mental health challenges use TikTok does not mean that TikTok magically causes those mental health challenges.

Like so many state AG cases, this whole thing is really about grandstanding by the AGs who hope to be elected the next governor or senator of their state.

This is yet another example of why KOSA is so dangerous. It empowers state AGs to sue websites in new ways. The state AGs have made it clear with most of these lawsuits that they don’t care what’s actually happening or what actually makes sense. They want to get headlines for taking on the big bad Chinese company that is poisoning our kids’ minds… so that they can get headlines and name recognition to line them up to run for higher office.

Filed Under: deceptive practices, family friendly, michael hilgers, nebraska, social media, think of the children
Companies: bytedance, tiktok

Daily Deal: Rosetta Stone

Deals

from the good-deals-on-cool-stuff dept

Embark on the journey of language learning with the Rosetta Stone lifetime subscription for all languages. Rosetta Stone has been the go-to software for language learning for the past 27 years. With its immersive and intuitive training method, you might be reading, writing, and speaking a new language with confidence in no time. It’s on sale for $190.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

Instead Of Banning Books, Idaho Library Decides To Ban Kids In Response To New Law On ‘Inappropriate Books’

Culture

from the no-books-for-you dept

Public libraries are supposed to be places for communities to gather and learn, with an important focus on being a place for kids to gain access to information. But thanks to a moral panic in the GOP about “indoctrination” in libraries, it seems that at least one library has decided to shut its door to children.

A public library in a tiny Idaho mountain community announced on Facebook that it is no longer allowing minors to enter its facilities and check out books, citing a new law adopted by the state legislature. Donnelly Public Library, in the roughly 250-person town of Donnelly, Idaho, will still offer after-school and summer learning programs for local youth.

But it’s now an adults-only establishment—literally. 

“Donnelly Public Library was deeply saddened by the passing of [House Bill] 710,” the library posted. “Unfortunately, the ambiguous language in the legislation leaves us no options but to make some very drastic changes. In order to comply with the legislation we will be transitioning our Library to be an adult only library as of July 1.” 

House Bill (HB) 710 allows parents or guardians to sue any school or public library for carrying materials that could be viewed as age-inappropriate and obscene. Libraries have to move books and materials or face lawsuits. Donnelly Public Library is a small facility in a literal log cabin.

“Donnelly [Public] Library is only 1024 [square foot],” said the library. “Our size prohibits us from separating our ‘grown up’ books to be out of the accessible range of children.” 

Idaho’s Republican-controlled state legislature adopted HB 710, and Gov. Brad Little signed it into law in April. The law’s proponents argue it is meant to give parents more oversight of what their children are reading while doubly serving as a law to protect minors from viewing potentially disturbing images. Entering force on July 1, 2024, HB 710 features a definition of obscene materials for minors that critics believe to be broad and, per the library, “ambiguous.” 

“‘Sexual conduct’ means any act of masturbation, homosexuality, sexual intercourse, or physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks or, if such person be a female, the breast,” reads a portion of the bill. The law provides for broad assumptions regarding material that is potentially “obscene” or “harmful to minors” for simply dealing with the subject matter of sexuality or the human body’s biological reproductive functions. Parents or guardians can arbitrarily apply these definitions against libraries accused of “promoting” material that is supposedly harmful to minors. In the law, “promoting” refers to virtually any act of selling, loaning out, and distributing books, DVDs, CDs, or other media types. The law also prohibits live performances that meet the definition of being harmful to minors. It is pretty encompassing. 

What’s even more nuts is that HB 710 is a bounty law. A “bounty law” allows private parties to bring civil complaints against entities for alleged violations of the law. If a judge determines the law is broken, the private parties are entitled to predetermined sums as compensation. HB 710 creates a civil right of action to sue schools and public libraries for promoting obscene materials to minors. If the parties suing the institutions prevail, they’re given $250 in statutory damages. 

They could be entitled to compensation for the actual, alleged damages of having their child exposed to a book viewed as violating HB 710. For small library systems like Donnelly Public Library, litigation prospects could be financially catastrophic and spatially restrictive. The law also allows county prosecutors and the Idaho state attorney general to bring civil action against schools and public libraries. Due to this, it isn’t that surprising that this public library is now adults-only. Nothing will be accomplished. Here’s why. HB 710 is grossly unconstitutional. 

Proponents will argue the law doesn’t ban books or the ability for adults to access materials.

Instead, they’ll say it gives parents more say in what children can read. That sounds all well and good, but a claim of such a law empowering parental rights is naïve. State lawmakers have essentially deputized pissed-off voters who believe in conspiracy theories about the nation’s youth being indoctrinated in public schools and libraries by leftist educators and librarians. 

Individuals ultimately become state actors incentivized by promises of guaranteed monies to challenge books and their locations that probably aren’t even “pornographic” or “obscene.” 

Anything that even remotely deals with sexuality or gender in any capacity could be challenged. Such challenges would violate the First Amendment rights of authors, parents, and children — but, most importantly, librarians, educators, and administrators. I can’t say this would happen exactly in the case of the Donnelly Public Library.

However, the fact that this library is so concerned with the beefed up liabilities under HB 710 that the library district board had to restrict the age of access for its patrons speaks to how unjust laws that significantly restrict and regulate libraries can genuinely be. There is no regard for the unintended consequences, which could have a greater impact on the state than the intent of the law.

A rich body of research shows that a child’s ability to access a school or public library positively impacts their development. 

In some studies, the role of the librarian in rural communities carries as much weight as a teacher or other trusted adult.

While it is true that Donnelly Public School isn’t canceling its after-school and summer reading programs, restricting year-round access to this library to just adults could come at a cost. I believe that having the ability to read is a fundamental human right, especially for teens. I might not be the best voice to discuss the rights of youth, but it’s evident this is a product of fear-mongering to gain power among Republicans is out of political gain. 

It is the Republicans, in the case of HB 710, that are harming the children just so a powerful minority of individuals could appease their political backers. No matter who it is or how they are held, everyone should be able to access the information they want and need. 

Michael McGrady covers the legal and tech side of the online porn business, among other topics.

Filed Under: book bans, book burning, bounty laws, donnelly, donnelly public library, free speech, hb 710, idaho, inappropriate books

Freshly Indicted Biden Deepfaker Prompts Uncharacteristically Fast FCC Action On AI Political Robocalls

Policy

from the careful-what-you-wish-for dept

Earlier this year you probably saw the story about how a political consultant used a (sloppy) deepfake of Joe Biden in a bid to try and trick voters into staying home during the Presidential Primary. It wasn’t particularly well done; nor was it clear it reached all that many people or had much of an actual impact.

But it clearly spooked the government, which was already nervously watching AI get quickly integrated in global political propaganda and disinformation efforts.

The Biden deepfake quickly resulted in an uncharacteristically efficient joint investigation by the FCC and state AGs leading to multiple culprits, including Life Corp., a Texas telecom marketing company, a political consultant by the name Steve Kramer, and a magician named Paul Carpenter, who apparently “holds a world record in straitjacket escapes.”

But Kramer was the “mastermind” of the effort, and when busted back in February, claimed to NBC News that he was secretly trying to prompt regulatory action on robocalls, likening himself to American Revolutionary heroes Paul Revere and Thomas Paine (seriously):

“This is a way for me to make a difference, and I have,” he said in the interview. “For $500, I got about $5 million worth of action, whether that be media attention or regulatory action.”

This week Kramer was indicted in New Hampshire, and now faces five counts that include bribery, intimidation and suppression. Now that he’s been formally indicted, Kramer, likely heeding the advice of counsel, is significantly less chatty than he was earlier this year.

Whether he’s telling the truth about his intentions or not, Kramer has gotten his wish. The whole mess has prompted numerous new AI-related efforts by the historically somewhat feckless FCC. Back in February, the FCC proposed a new rule declaring such calls illegal under the Telephone Consumer Protection Act (TCPA), which it already uses to combat robocalls (often badly).

And this week, the FCC announced it would also be considering new rules requiring disclosure of the use of AI in political ads:

“As artificial intelligence tools become more accessible, the Commission wants to make sure consumers are fully informed when the technology is used,” [FCC boss Jessica] Rosenworcel said in a news release. “Today, I’ve shared with my colleagues a proposal that makes clear consumers have a right to know when AI tools are being used in the political ads they see, and I hope they swiftly act on this issue.”

We’ve explored in great detail how the FCC has been a bit of a feckless mess when it comes to the policing of robocalls. In part because it’s had its legal authority chipped away by industry lobbying and dodgy court rulings for years, but also because big telecom giants (affixed to our domestic surveillance apparatus) and “legit” marketing companies lobby revolving door regulators for rule loopholes.

Everything the FCC does, however wimpy, inevitably faces a major court challenge by corporations keen on making money off of whatever the FCC is trying to protect the public from. It’s why in the year 2024 scammers and scumbags have rendered our voice communications networks nearly unusable. Hopefully the FCC’s efforts to combat AI deep fake political robocalls results in a more productive outcome.

Filed Under: ai, automation, deepfake, disinformation, fcc, misinformation, politics, propaganda, robocalls

Warner Bros. Discovery Gives In And Transfers Games Back To Developers’ Steam Accounts

Culture

from the phew dept

A couple of months back, we talked about an odd decision Warner Bros. Discovery made to simply “retire” a bunch of games it published, mostly from small indie studios, from the various online stores where they were sold, such as Steam. This resulted in anger from those who bought these games and confusion from those who developed them. Buyers were pissed because retired games would either disappear from the accounts of those who bought them, or else would force them to get re-published versions of the games from indie developers that would be without all of the data and achievements players had gotten playing them. The confusion from the developers was over the fact that WBD could simply transfer these games to those developers’ storefront accounts rather than losing anything at all for the customers. On Steam, for instance, comments from some of those same developers demonstrate that this process is trivially easy.

In a comment on that Ars post, Matt Kain, developer of Adult Swim Games’ Fist Puncher, noted that they had received the same “retired” notice from WBD. “When we requested that Warner Bros simply transfer the game over to our studio’s Steam publisher account so that the game could stay active, they said no. The transfer process literally takes a minute to initiate (look up “Transferring Applications” in the Steamworks documentation), but their rep claimed they have simply made the universal decision not to transfer the games to the original creators,” Kain wrote.

This led to all kinds of speculation as to why WBD was going down this road. It was an obvious PR nightmare, telling those who bought published products from WBD that some or all of their stuff was just gone. Some speculated that this was being done as some kind of tax write-off strategy. Others suggested it was just that the company didn’t want the headache of figuring out the sales taxes on these titles anymore and just wanted it all to go away.

Either way, thanks to the public pressure and the reporting done on the subject, it appears that WBD has relented and will, in fact, transfer the games to the developer accounts on these storefronts.

Late last week, one of the Adult Swim Games creators impacted by Warner Bros. Discovery’s (WBD) seeming shutdown posted on X (formerly Twitter) that he received an email from Warner Bros. indicating that his Duck Game was “safe.” “[T]he game is being returned to corptron along with [its] store pages on all platforms,” Landon wrote. The same went for Owen Deery, whose notice from WBD about his game Small Radios Big Televisions brought attention to the media conglomerate’s actions and who posted that his game, too, will have its ownership and store listings returned to him.

As noted by PC Gamer, the 60-day timeline originally provided to developers for their games to be delisted has passed, and yet most of the Adult Swim Games titles are still up.

And so, for now, it seems that WBD is going through the transfer process for these games. We don’t have confirmation it is doing so for all the games in question, but it would be sort of insane if the company were picking and choosing which games to transfer and which not to.

But it’s hard for this to make anyone feel like their purchased content is safe, no? If that content lived at the pleasure of WBD’s whims, which, as we just saw, can change on a dime, what prevents the company from making anti-customer decisions with other content in the future?

Filed Under: adult swim games, duck game, indie studios, retired video games, video games
Companies: warner bros. discovery

Taxing The Internet To Bail Out Media Won’t Solve The Fundamental Problems Of The Media Business

Journalism

from the not-the-way-to-do-this dept

Hey Google, can you spare a few hundred million to keep Rupert Murdoch’s yacht afloat? That’s essentially what some legislators are demanding with their harebrained schemes to force tech companies to fund journalism.

It is no secret that the journalism business is in trouble these days. News organizations are failing and journalists are being laid off in record numbers. There have been precious few attempts at carefully thinking through this situation and exploring alternative business models. The current state of the art thinking seems to be either (1) a secretive hedge fund buying up newspapers, selling off the pieces and sucking out any remaining cash, (2) replacing competent journalists with terrible AI-written content or (3) putting all the good reporting behind a paywall so that disinformation peddlers get to spread nonsense to the vast majority of the public for free.

Then, there’s the legislative side. Some legislators have (rightly!) determined that the death of journalism isn’t great for the future of democracy. But, so far, their solutions have been incredibly problematic and dangerous. Pushed by the likes of Rupert Murdoch, whose loud and proud support for “free market capitalism” crumbled to dust the second his own news business started failing, leading him to demand government handouts for his own failures in the market. The private equity folks buying up newspapers (mainly Alden Capital) jumped into the game as well, demanding that the government force Google and Meta to subsidize their strip-mining of the journalism field.

The end result has mostly been disastrous link taxes, which were pioneered in Europe a decade ago. They failed massively before being revived more recently in Australia and Canada, where they have also failed (despite people pretending they have succeeded).

For no good reason, the US Congress and California’s legislature are still considering their own versions of this disastrous policy that has proven (1) terrible for journalism and (2) even worse for the open web.

Recently, California Senator Steve Glazer offered up an alternative approach, SB 1327 that is getting a fair bit of attention. Instead of taxing links like all those other proposals, it would directly tax the digital advertising business model and use that tax to create a fund for journalism. Specifically, it would apply a tax on what it refers to (in a dystopian Orwellian way) as a “data extraction transaction.” It refers to the tax as a “data extraction mitigation fee” and that tax would be used to provide credits for “qualified” media entities.

I’ve seen very mixed opinions on this. It’s not surprising that some folks are embracing this as a potential path to funding journalism. Casey Newton described it as a “better way for platforms to fund journalism.”

Unlike the bargaining codes, this bill starts with the right question, which is how to fund more jobs in journalism. Its answer is to use tax credits, a time-tested form of public-private partnership. It structures those credits to incentivize small publishers and even freelance journalism just as much as it helps to support large, existing media companies.

And it does all of that without breaking the principles of the open internet.

And, I mean, when compared to link taxes, it is potentially marginally better (but also, with some very scary potential side effects). The always thoughtful Brandon Silverman (who created CrowdTangle and has worked to increase transparency from tech companies) also endorses the bill as “a potential path forward.”

It’s a simple bill designed to help revive local journalism. Instead of complicated usage-based mechanisms, this approach is very straightforward. It’s an online advertising tax that funds tax credits to support education and journalism. In this case, it’s a 7.25% ad tax (matching the state’s sales and use tax rate) on companies with more than $2.5 billion in revenue.

And here’s the rub: it would raise more than $500 million.

That’s every year.

To put it in context, the single largest philanthropic commitment to local news in the U.S. was the MacArthur announcement I mentioned in the first of this post. That funding represents $100 million a year and is spread across the entire country. This would be 5x that number, would grow over time, has no end date, and is just for California. Of course, as I understand it, some of this money would have to go to the general fund and be directed towards education in the state…that’s also a great use of the funds and there would still an enormous amount left for news (we’ll know more on these exact numbers as more official analysis is completed).

But that is a staggering amount of money and a game-changing amount of potential funding for news in the state. And it’s something that could easily replicated across the country.

But I tend to agree much more with journalism professor Jeff Jarvis who highlights the fundamental problems of the bill and the framework it creates. As I’ve pointed out with link taxes, the oft-ignored point of a tax on something is to get less of it. You tax something bad because that tax decreases how much of it is out there. And, as Jarvis points out here, this is basically a tax on information:

Data are information and information is knowledge. To demonize and tax the collection of information should be abhorrent in an enlightened society. His rhetoric at moral-panic pitch sets a perilous precedent.

Furthermore, Jarvis rightly points out that Glazer’s bill is positioned as something unique when users give their attention to internet companies, but explicitly carves out when users give their attention to other types of media companies. This sets up a problematically tiered system for when attention gets taxed and when it doesn’t:

He argues that he is taxing a barter exchange users make when they give data to internet platforms and receive free content in return. Well then, shouldn’t that tax apply to the exchange we all make when we give our valuable attention to TV and radio and much of the web in exchange for free content? But the bill exempts news media.

Indeed, the entire framing of the bill seems to suggest that data and advertising is a sort of “pollution,” that needs to be taxed in order to minimize it. And that seems particularly troublesome.

As Jarvis also notes, the true beneficiaries of a law like this would still be those rapacious hedge funds that have bought up a bunch of news orgs:

The hedge funds that now own 18 of the state’s top 25 newspapers — the hedge funds that are ruining journalism in California and across America — will benefit. They should not receive a penny. If anyone’s cash flow should be taxed, if anyone should be punished for the state of news today, it is them. Though the money is intended to go to supporting reporters, money is fungible and it will doubtless support hedge funds’ bottom lines more than journalists.

Indeed, the structure of the bill is one that will continue to benefit the failed news organizations, rather than incentivizing newer, better news organizations. That is the problem with all of these approaches, which assume that the answer must be to prop up the businesses that failed to innovate, rather than creating better incentives for more innovative approaches.

Google has warned that, if the bill passed, it would likely stop funding a bunch of other news initiatives that it has funded for years. This shouldn’t be surprising. If Google has already been funneling a ton of money into news initiatives, and then the California government is forcing them to direct hundreds of millions of dollars to its preferred news initiative, it would make sense that the company would drop its other programs and redirect the money to this one.

And, again, that highlights the problematic nature of this whole setup. It’s based on having the government decide who should be taxed and who gets funded. And when it comes to journalism, we should be pretty worried about the government picking and choosing winners and losers. Because that raises serious First Amendment issues and is very prone to just supporting news organizations that treat the deciding politicians nicely, rather than those that do deep investigative reporting and expose corruption and malfeasance.

Not surprisingly, Glazer did not take Google’s announcement well. He obnoxiously declared, “When people asks [sic] who is in charge of protecting our democracy and independent news— now you know.”

But, if the alternative is that the California legislature gets to pick and choose who “protects independent news,” I’m not sure that’s any better.

Honestly, if Glazer didn’t think that his plan would lead Google (and Meta) to pull the money they already put into funding journalists as duplicative, what was he even thinking?

And I say this as someone who could conceivably benefit from this bill. But I don’t trust the California legislature not to play favorites.

A few years back, I visited some elected California legislators to talk about a bunch of policy-related issues. My first meeting with a California state senator set the tone. He asked me if I had heard about a new committee he had set up, and I told him I had. He then said he noticed that I had not reported on that committee. I pointed out that the mere creation of a committee didn’t seem all that newsworthy, but when the committee did something that I thought was worth covering, I would then write about it.

His response was kind of chilling and has stuck with me for years: “well, if you’re not willing to write about what I’m doing, why should I even listen to you?”

It was a demand for political quid pro quo, which is not something we do here at Techdirt.

But I fear that a bill like Glazer’s effectively makes this mandatory. Journalism orgs will need to scratch the California government’s back to get access to these funds.

There are all sorts of reasons why tech companies should consider funding journalism. I think their desire for high-quality data for training AI is a good one, for example. But having the state step in and set the rules seems prone to all sorts of corruption.

Journalism needs new business models. We’re all experimenting all the time with different ideas (and if you’d like to help, there are lots of ways to support us). But we should be pretty wary of governments stepping in with half-baked solutions that could distort the overall world of journalism and the open internet.

Filed Under: business models, california, data extraction tax, data tax, innovation, journalism, sb 1327, steve glazer
Companies: google, meta, news corp

Federal Judge Says It’s Time To End The ‘Mistake’ Of Qualified Immunity While Handling A Bogus Murder Charge

Legal Issues

from the QI-hasn't-done-much-but-encourage-bad-behavior dept

Qualified immunity is a mess. It’s a mess the Supreme Court created and, to date, seems largely unwilling to fix (despite the occasional remand).

The theory of QI is this: law enforcement officers (and other government employees) should be granted forgiveness for blowing constitutional calls during rapidly evolving situations potentially involving life and death.

And it would be great if that’s how qualified immunity was applied. But instead it’s summoned as a “get out of litigation free” card every time a cop (or other government employee) gets sued. While it may have limited usefulness in cases where officers are under fire or facing other life-threatening situations, it should not be applied at all when time isn’t a factor.

The problem is that the Supreme Court has made the rules of QI very clear: assume QI at all times and only deny it when there’s no possible way to avoid doing so.

Years of cops hollering QI at the drop of a lawsuit has pushed some courts and judges to the limits of their patience. Most notably, new appointee to the Fifth Circuit, Don Willett, called bullshit on qualified immunity shortly after taking his seat at this appellate court:

Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

What Willett points out is the hamstringing of lower courts by the top court in the land. The discussion is no longer about the perceived rights violation, but rather whether or not even the stupidest cops in the nation would be able to comprehend precedential court rulings that might have an effect on their police work.

The problem with this blistering dissent is that it’s a dissent. The majority still rules. The other problem is that Willett does his work in the federal circuit that’s most likely to grant qualified immunity to police officers.

In the case Willett handled, officers violated rights by performing a warrantless search of a health care provider’s office. There were no “split second” decisions to be made and at no time did officers “fear for their safety” because of threats or violence emanating from the target of their (illegal) search.

That’s not how QI should be used. It should only apply in the way the Supreme Court originally worded its precedent: in rapidly evolving situations where officers needed to react quickly, rather than consult their “Precedent For Dummies” handbooks.

The same sort of thing has happened here. In this case, handled by a Mississippi federal court, there were no split-second decisions to be made. Instead, during the course of murder investigation (something that can take weeks, months, or years), a law enforcement officer decided the best course of action would be to frame an innocent person.

From the decision [PDF]:

For nearly two years, the State of Mississippi falsely accused Desmond Green of capital murder. A detective used a lying, drug-impaired jailhouse informant to lock Green up. The detective also steered the informant to select Green’s face from a photo lineup. It was a horrifying wrong.

[…]

The informant eventually recanted. The State then dropped the charges. But the ordeal cost Green almost two years of his life.

The exonerated man sued a number of government entities with the primary target being the detective (Jacquelyn Thomas) who ensured he was locked up for a crime he didn’t commit.

But he went one step further. He asked the federal court to rule on the constitutionality of qualified immunity itself. As the court notes during the opening of its decision, Green makes a good point. As the law stands now, the court can find Green’s rights were violated while also finding Green cannot pursue a lawsuit against the person who coerced a lying informant to give her all the “evidence” she needed to lock up an innocent man.

Green has found a receptive audience, at least at the lowest level of the federal judiciary:

The Court agrees with these calls for change. Congress’s intent to protect citizens from government abuse cannot be overridden by judges who think they know better. As a doctrine that defies this basic principle, qualified immunity is an unconstitutional error. It is past time for the judiciary to correct this mistake.

Obviously, the court denies the lying detective’s request for immunity. But it goes on to attack the Supreme Court-created escape hatch favored by lawbreakers who work in law enforcement.

First, it reminds other courts about what Section 1983 (the law giving citizens the power to sue government employees over rights violations) actually is: it’s the response from Congress to the sad fact that law enforcement was still filled with white supremacists following the end of the Civil War. The Ku Klux Klan waged war on freed slaves and other black citizens, fully supported by law enforcement officers who were either KKK members or fully supported these acts of violence.

Section 1983 is actually the “Ku Klux Klan Act of 1871.” Few plaintiffs cite the act’s full name. Police officers never do. But from Section 1983 lawsuits, the Supreme Court erected “qualified immunity.” It was not created by an act of law. It belongs solely to the nation’s top court. And until legislators pass a law abolishing it, it will remain the overriding “law” in lawsuits like these — lawsuits only allowed to exist because law enforcement in the United States was indistinguishable from the Ku Klux Klan following the end of the Civil War.

The law itself imposed liability. The Supreme Court’s interpretation of the law does the opposite: it gives cops a way to escape liability long before all issues (including differences in testimony, evidence, etc.) have been resolved. It means cops don’t even have to answer the allegations of plaintiffs. All they have to do is press the QI eject button and hope courts won’t ask them to contribute to the resolution of open evidentiary issues.

The court continues its history lesson, suggesting the qualified immunity concept is just as questionable as the post-Civil War behavior of law enforcement officers.

That all changed in Pierson v. Ray, a case arising out of Jim Crow Mississippi.

In Pierson, police officers in Jackson arrested and jailed peaceful ministers who entered a “White Only” waiting room in a bus terminal. The ministers eventually beat the bogus criminal charges in Mississippi state court, then sued the police officers in federal court for violating their constitutional rights, as guaranteed by the Ku Klux Klan Act.

On appeal, the Supreme Court decided that the police officers could assert a form of immunity—a “[]qualified immunity”— by claiming that they acted in good faith when they arrested the ministers to prevent violence. The Justices derived this immunity from good-faith and probable cause defenses available to officers facing common law claims.

Reasonable (as in “reasonable officer”)? Not really.

The officers had no proof that the ministers were a threat to public safety. The true threat came from the menacing crowd of 25 to 30 bystanders “in a very dissatisfied and ugly mood,” “mumbling and making unspecified threatening gestures,” and “threatening violence.” Pierson, 386 U.S. at 553. The officers never even claimed a good faith belief that the ministers had violated the law. It was as if the officers had arrived at a hostage situation, protected the kidnappers, and arrested the hostages.

Qualified immunity can be directly liked to the Supreme Court deciding to give officers a free pass on allowing a potentially violent heckler’s veto decide what black people could or could not do in the United States more than 100 years after the end of the Civil War.

The court sums up its history lesson this way:

It is difficult to see qualified immunity’s creation as anything other than a backlash to the Civil Rights Movement.

The court continues through the rest of Green’s claims against the government and this detective. It says Green brings a bunch of evidence that supports his claims. It then says the detective brings little more than repeated invocations of immunity and counterclaims that are mostly of the “well, it’s not the worst thing a cop can do” variety.

From then on, the court advances Green’s other case: that federal courts declare qualified immunity itself to be unconstitutional. Here’s part of the Mississippi court’s opening salvo in support of Green’s “kill QI dead” assertions:

[Qualified immunity] adjudicate cases—it ends them—rather than channel them into a better forum brought by parties with a more concrete stake in the outcome. It is so removed from the democratic process that it merits the most stringent scrutiny.

I think “democratic” is a poor choice of words. The rest is bang-on. QI short-circuits the judicial process. And, in doing so, it prevents plaintiffs from presenting their cases fully, which would appear to violate the guarantee that citizens can seek redress from their government for harming them. Sure, allowing people to file Section 1983/Ku Klux Klan Act suits handles the redress part (technically), but allowing the government entities they sue to escape the lawsuit before having to fully address the allegations gives the government options citizens have no access to.

Without explicitly saying so, the court says it’s pretty fucking odd that it’s almost always the same sort of government employees invoking qualified immunity to get out of lawsuits before all the facts are in. And as for the Supreme Court’s rationale that immunity is necessary to prevent the government from being expected to shoulder the burden of (supposedly) frivolous litigation, the same court has provided no similar protections for private entities just as likely to be sued as law enforcement officers.

Pause for a moment to observe how aberrant these justifications are. Emergency room physicians are critical in a real life-or-death sense. But when they are sued for negligence, we take for granted that they will have to respond and, perhaps, be subjected to discovery about their actions. The economy relies on banks to preserve, grow, and allocate resources. In the event a bank engages in fraud or facilitates a Ponzi scheme, though, its victims can come to court and ask to be made whole.

The same is true for just about every realm of life. The judicial process is how our democracy provides “tribunals for the peaceful resolution of all manner of disputes.” Chief Justice John G. Roberts, Jr., 2015 Year-End Report on the Federal Judiciary at 2 (emphasis added). So it is odd for the judicial process to privilege government over every other industry. It’s important to keep the public sector functioning, to be sure, but we also need functional hospitals, utilities, financial institutions, and supply chains. And in all of those systems, we accept the costs and distractions of litigation as necessary consequences of a fair dispute resolution system.

The Supreme Court nevertheless assumes that qualified immunity is necessary to privilege government operations over non-government operations. Yet little to no evidence supports the assumption.

Then it compares the loss of life and liberty in criminal prosecutions to the possible loss of government funds in cases where qualified immunity is raised. Cops get to escape lawsuits if they’ve managed to violate rights with actions that do not specifically align with previous rights violations actually held to be rights violations by the courts handling those cases.

That standard doesn’t apply to citizens accused of crimes, however. Nor does it apply to civil defendants, who aren’t able to argue their actions were so novel they couldn’t possibly be expected to realize they were fraudulent, murderous, or whatever.

In a criminal case, the government can convict and send you to prison even if no one had ever committed that crime in quite the same way before. The prosecutor doesn’t have to prove that the unlawfulness of your conduct was “beyond debate.” You can lose your liberty for new and creative kinds of criming…

But citizens are expected to hold themselves to a higher standard than courts are willing to hold police officers to. Remember, a violation of constitutional rights is a federal crime. Just because it’s most often handled in civil litigation doesn’t mean it’s not a criminal act. Cops get an easy out. Anyone else accused of a crime has to go through the entire legal process, with their only hope being (perhaps) the tossing of some evidence if it was obtained unlawfully.

And what has America gained from qualified immunity? Not a goddamn thing.

The result is a world where courts let prison officials get away with putting someone in a feces covered cell for six days, rather than hold them accountable for violating the general principle: don’t make people sleep in other people’s feces.

The conclusion presented by this court is as short as it is self-evident. A cop railroaded an innocent man on murder charges. He lost two years of his life — possibly the two most miserable years of his existence. The allegations should be met with evidence, not a rote invocation of a privilege all law enforcement officers feel they deserve. The federal judiciary needs to dismantle qualified immunity and allow the judicial process to take its true course.

Desmond Green has suffered two injustices. The judiciary should not impose a third. If qualified immunity would do that, closing the courthouse doors to his claims, then the doctrine should come to its overdue end.

Exactly. But if the Supreme Court is unwilling to walk back one of its own doctrines, it should at least have the intellectual honesty to insist it only be applied as intended: during split-second decisions in objectively dangerous situations. Everything else just encourages cops to violate rights in perpetuity.

Filed Under: carlton reeves, don willett, qualified immunity, supreme court