Last year you might recall that the New York AG's office began investigating who was behind all of those bogus comments that flooded the FCC's website during the net neutrality repeal. As we noted then, "somebody" paid a proxy organization to flood the FCC comment period with a myriad of fake comments. Some of those comments hijacked the real identities of real people (like myself). Others utilized a bot to post a myriad of fake support for Ajit Pai using a hacked database of some kind. Some of the most enthusiastic supporters of Ajit Pai's policies were, interestingly enough, dead.

When the AG's office reached out to the FCC for help getting to the bottom of who was behind the fake comments, the FCC completely stonewalled them, rejecting nine requests for data between June and November of last year. The FCC has subsequently stonewalled numerous FOIA requests regarding who used the necessary APIs to submit the fraudulent comments in bulk, resulting in a lawsuit by journalist Jason Prechtel. A court recently ruled in Prechtel's favor, demanding the FCC release at least some data (in a month or two) that could identify the culprits.

Meanwhile, New York AG Barbara Underwood has expanded her investigation into the bogus comments, subpoenaing more than a dozen ISP-linked lobbying groups (and a few consumer advocacy firms) for additional data on the methodology used to submit the fake support for the FCC's plan. Subpoena targets including groups like the telecom-industry funding lobbying vessel Broadband for America, which we've pretty consistently highlighted for some fairly sleazy and disingenuous behavior.

In her statement to me, Underwood stated that at this juncture they've found that 9.53 million of the 22 million net neutrality comments submitted to the FCC were fake:

"The FCC’s public comment process was corrupted by millions of fake comments—and our investigation found that as many at 9.53 million of those comments stole the identities of real people,” Underwood said in a statement.

“The law protects New Yorkers from deception and the misuse of their identities. And all Americans deserve a fair and transparent process for determining public policy that impacts their daily lives. My office will get to the bottom of what happened and hold accountable those responsible for using stolen identities to distort public opinion on net neutrality."

It's worth noting that Prechtel's analysis and reporting so far has claimed that one of the key players in this whole shady affair may have been DC-based news website and lobbying and policy organization CQ Roll Call, which e-mailed the FCC last year looking for advice on how to submit millions of comments on behalf of an unnamed client. CQ Roll Call was indeed among those subpoenaed by the NY AG this week. Granted there's a universe of fairly shady organizations that routinely help all manner of companies submit fake comments to try and sway government policy during official proceedings.

Again, it's fairly obvious who benefited from trying to downplay the massive public opposition to the FCC's plan by using cardboard cutouts. Getting a hold of all of the FCC API and other server-side data will certainly go a long way toward that end. The question really, as it has always been, is whether any of the proxy organizations involved were dumb enough to leave a paper trail leading to funders like AT&T, Verizon, Comcast, or Charter.

Oh, the EU, will you ever learn? Over the last few years, the EU has been screaming about the awfulness of evil large tech companies in the name of Google, Amazon, Facebook and Apple (sometimes called "GAFA"), though in reality, their biggest concerns are focused almost entirely on Google and Facebook. The EU keeps popping up with ridiculous laws, all of which are designed to hit Google and Facebook. The GDPR was a big one, and the latest is the EU Copyright Directive. And there are more as well. Some of us keep pointing out to the EU that if these laws are designed to go after Google and Facebook, they're going to miss their target quite a bit, because they'll mostly serve to lock in those companies as the dominant providers. That's because they're big enough to manage the regulatory burden, whereas startups and smaller competitors will not be able to and will suffer.

The first bit of data is in on the GDPR and of course it shows that the big winner under the GDPR is... Google. The biggest losers? Smaller competitors to Google. A bit surprisingly, Facebook did see its adtech marketshare decline (while Google's grew), but relative to everyone else, Facebook sill beat out all other competitors.

Now, the report does note that there are fewer ad trackers for users in the EU -- which is certainly a win for users -- but the fact that this is further cementing the dominant position of Google and Facebook should be a massive concern to people who value competitive markets and innovation.

This shouldn't be a surprising result at all. But if part of the goal of the EU is to reduce the reliance on Google and Facebook, the exact opposite is occurring. Just like lots of us predicted.

You will recall that over the past few years, we have been discussing how Iowa State University essentially did everything wrong concerning an alumni group running a pro-marijuana organization that made use of school symbols and iconography. After initially approving the group's use of school trademarks, several members of the state's conservative legislature got involved, leading to the school rescinding that authorization. NORML, the name of the group, sued the school, claiming all of this was a violation of their free speech rights. The courts agreed, eventually to the tune of a $600k judgement, meaning that school wasted over half a million dollars of taxpayer money to fail at trademark bullying.

You might have expected that this would serve as a delightful education for the school as to the reasons why they don't want to be a trademark bully. You would be wrong, of course. Instead, the school's next step was to immediately rewrite its trademark use policy, making it laughably restrictive and essentially attempting to give the school broad oversight over all uses of its iconography by student groups. This, predictably, has led to a full on revolt both by many of the school's student organizations and its student government.

To start with the student organizations, they are largely dropping ISU connections from their name and branding like a hot stone.

A year ago, Iowa State University's student chess club was easily tied to the university through its name. Now, it’s the Ames Collegiate Chess Club. The student aviation group had been the Flying Cyclones. Now, they’re the Ames Flyers. And the student space club, which had had “Iowa State” in its name, is Ames Space Teaching and Recognition Association.

Why the changes? University administrators over the summer tightened Iowa State’s trademark policy by limiting most student organizations' access to trademarked references to the institution.

As noted elsewhere in the post, ISU has a habit of puffing its chest out over its large roster of student-led organizations and clubs. Yet, because of its heavy-handed new policy, those ties to the university are being severed, taking those bragging rights away. Where ISU once could be seen as having a rich tradition of clubs and organizations reveling in student participation, a separation line has now been drawn. All because the school wants to choose control over culture.

And the students are pissed.

The policy so riled student government members that they unanimously approved a resolution this week requesting the administration, at least temporarily, backpedal from the guidelines that were posted Aug. 1 on ISU’s Trademark Licensing Office website.

"The administration went about this poorly," Michael Tupper, an ISU student government member, said at this week’s meeting. "They implemented the change in the middle of the summer, when there were no students on campus."

In addition, Tupper said during the meeting, “We’ve been told multiple times that the change was not in direct result to the lawsuit. … That is not true.”

A school spokesperson states that the school will review the resolution and then meet with the student government, but it's painfully obvious that it would rather have avoided student interaction altogether through sheer timing. Making such a policy change where the primary effect will be felt by student groups when students weren't even on campus isn't particularly subtle. Meeting with the student government now is CYA, not some kind of olive branch. And that's likely why the student government is not screwing around here.

Some at this week’s student government meeting suggested that if university officials don’t follow through on any requests in the resolution, other actions could be taken, including votes of no confidence or censure.

It's a problem entirely of ISU's own making. And, given the culture that is supposed to be fostered on college campuses, this is about as wholly unnecessary as it gets. As entertaining as it is watching an institution like ISU learn absolutely all the wrong lessons from a well-publicized trademark dispute, it has to be just as frustrating for the students on campus.

There's been quite a lot of reasonable uproar over the leaked plans for Google to re-enter the Chinese market with a censored, locked down search engine. There's a lot of history there, but giving in to the authoritarian government's desire to block access to all sorts of content would seem to go very much against Google's stated focus on helping provide access to information around the globe. There have been numerous recent reports of Google employees protesting this decision internally, and even some employees have quit Google to put an exclamation point on just how against this idea they are. Recently an opinion piece in the South China Morning Post from a Chinese professor started making the rounds, arguing that "even a censored Google search engine would be better" for people in China than its current main search engine, Baidu.

The argument from Bai Tongdong, a professor of philosophy at Fudan University, is pretty straightforward. More or less, it argues that Baidu is not a very good search engine. Google, even in a heavily censored fashion, is almost certainly going to be a lot better, and thus it will certainly aid in getting everyday people in China more access to information:

As a college professor, I find Baidu’s search results on scholarly matters deeply frustrating, because they don’t lead me to the webpages I wish to find. In contrast, Google’s search results are far more useful. Thanks to my part-time employment at New York University’s law school, I can use its virtual private networks (VPN) to access Google, a benefit that I consider more valuable than the extra pay.

And it is not just terrible search results, and the lack of access to useful tools such as Google Books. Baidu’s shameless commercialisation of its search engine has been the subject of controversy. For example, companies could – and maybe still can – bid for the top spots in Baidu’s search results, and users are not warned that these results are the outcome of commercial bidding and not sorted by relevance, as is the practice with Google.

In one case that sparked a public outcry, a young man used Baidu to search for treatments and clinics for the rare form of the cancer he suffered from. The man’s family spent over 200,000 yuan (US$29,000) on an experimental treatment at one of the for-profit hospitals that topped his Baidu search, but the treatment was unsuccessful and he died. The search results could have caused him to miss potentially life-saving treatment.

Undoubtedly this is true. It would certainly probably improve the search engine results and options for Chinese residents. But that's not really the point of why Google left China nearly a decade ago, nor the reason why people are concerned about its plans for a censored re-entry. I don't think anyone denies that it probably would be useful for Chinese residents and citizens. The question is at what cost does this come? Giving into an authoritarian government, hiding important and often useful information -- including information critical or mocking of the Chinese government -- is something that many people think is fundamentally wrong. Appeasing authoritarian governments never leads to good outcomes.

The article suggests that since it would improve the lives of the average Chinese individual, and because Google could always pull out again if it felt pressured to go to far in the moderation of the search engine, that this shouldn't be a huge concern. But that ignores the idea that having the government censor the search engine results in the first place should already be seen as a bridge too far.

Finally, he argues against the idea that Google staying out of China leads to China changing its policies, and thus, Google should re-enter the market:

...the simple fact is that, although it has been years since Google exited China, nothing much has changed or is expected to change for better in those areas. While the situation can’t worsen, there is a chance that Google might prompt an improvement.

In a world in which the only choices available are between the purely good and the purely evil, that is, in a world that has never existed and will never exist, “do no evil” would be a good guiding principle. In the world we live in though, the practical motto should be “do the lesser evil”. For, after all, a morally compromised Google is still better than Baidu.

That's really throwing in the towel entirely, though. The entire argument is based on the idea that Google hoped that leaving China would prompt some change in its unhealthy censorship policies. But, if true, that would entrust to Google a lot more power than I think even the biggest Google booster thinks the company has. It didn't pull out of China to try to force China's hand. It pulled out of China because it believed China's censorship and surveillance campaigns were simply wrong. That hasn't changed, and that's why Google shouldn't give in here. It's not about some big calculus about what's better for whom. It's about not censoring content at the behest of an authoritarian censorship-happy government.

It's troubling how little is needed to trigger a police investigation and some ancillary damage to the First Amendment. Thanks to flagging tools provided by social media platforms, almost anything can be sent to local law enforcement for additional inspection, which results in the following sort of thing, in equal parts absurd and horrifying.

It all started Dec. 14, when local DJ and gay activist Matt Beierschmitt took to Facebook to chastise gays for patronizing a nightclub named ICandy at 254 S. 12th St. Its owner had made headlines in 2016 when he was recorded making disparaging remarks about black people. [Philadelphia journalist Ernest] Owens responded, echoing his sentiments and blasting both ICandy and the Mummers.

"I say, 'F– em,' they will be shown better than told," Owens wrote. "I will just leave it at that. A great reckoning is coming."

Four days later, Owens said, he got a phone call from Detective Lawrence Richardson Jr. of the Police Department's Dignitary Protection and Counter Terrorism Operations unit, informing him that he was being investigated because of his Facebook comment.

"I said, 'What?'" he recalled. "I'm thinking: 'They're calling me about something on Facebook?' Police shouldn't be engaging me over a Facebook post."

But they were. Philly police insisted on speaking personally to Owens about his post. He met them at the unit's headquarters the next day. Once there, the officers said stuff about "see something, say something" and proceeded to question Owens about gun ownership, bomb-making ability, and any plans he might have to harm anyone else. After answering these questions, the police told Owen he was "cleared" and free to go. The officers also told him this was standard procedure police follow when criminal activity is reported.

Except there was no criminal activity. There was only a single Facebook post helpfully forwarded to the police by another Facebook user.

During the interrogation, Owens said, he noticed paperwork listing the name of the man who had complained about his Facebook comment.

That man, James DePre, a saxophone player and leader of the Quaker City String Band, said Wednesday that he emailed Owens' comment to the police after someone sent it to him and after he'd attended a parade-safety planning meeting of officers from the Third and Fourth Districts and community members, including Mummers.

"At that meeting, the police said, 'If you see something, say something.' I don't even know who he is," DePre said of Owens. "'A day of reckoning is coming,'" that was the thing I reacted to. That's what prompted me to send it to the police. If you have a public event and you get a message like that, that stood out to me. So I said, 'Here it is, you can do whatever you want with it.'"

Well, they did what they wanted to with it. This should be a cautionary lesson to social media users. If you send something to law enforcement, they may decide to take away someone's freedom. If something goes wrong during this process, they may also take away someone's life. "Better safe than sorry" is a shitty platitude to deploy after some "see something, say something" do-gooding ends a fellow citizen's life. I don't expect social media users to be experts in sussing out true threats, but they should definitely be more careful about dragging men with guns into the mix over ambiguous words posted during heated discussions.

This doesn't necessarily mean the police are out of line. This is what we pay law enforcement to do: follow up on reported criminal activity. But everything about law enforcement is discretionary, which can result in rights violations or biased response rates. "See something, say something" very rarely results in actionable info, but police are just as invested in the "better safe than sorry" platitude and do what they can to encourage this unfortunate cycle of events.

There's no good fix for this. All that can be offered is an abundance of caution. People making complaints need to recognize the potential severity of a law enforcement response. And law enforcement needs to realize it doesn't need to disrupt a citizen's life just because some internet rando sent them a Facebook screenshot. All in all, this could have gone worse. But even when it goes well, it still has an adverse effect on people who committed no crime but still find themselves surrounded by cops demanding to know about the weapons they own (gun ownership: still legal) and their level of antipathy towards their fellow humans. Non-custodial interviews are bullshit because they often require proving negatives to law enforcement satisfaction while requiring almost nothing from the law enforcement officers asking the questions.

Ernest Owens has made more of this than is strictly necessary, but he's not completely wrong. He may be overstating the effect of this interaction with law enforcement, but he certainly will feel less free to post his thoughts in public forums, especially if those thoughts are critical of others.

Last week, the extreme Trump-supporting media sites went positively ballistic when Breitbart released a leaked internal presentation entitled "The Good Censor." According to Breitbart and the other Trumpkin media, this is somehow "proof" that Google is censoring conservatives, giving up on free speech and planning to silence people like themselves. To put this into a context those sites would understand, this is "fake news." I finally had the time to read through the 85 page presentation and, uh, it paints a wholly different picture than the one that Breitbart and such sites have been painting.

Instead, it pretty clearly lays out why content moderation is impossible to do well at scale and that it will always result in decisions that upset a lot of people (no matter what they do). It also discusses how "bad actors" have effectively weaponized open platforms to silence people.

It does not, as some sites have suggested, show a Google eager to censor anyone. Indeed, the report repeatedly highlights the difficult choices it faces, and repeatedly highlights how any move towards increased censorship can and will be abused by governments to stamp out dissent. It also is pretty self critical, highlighting how the tech companies themselves have mismanaged all of this to make things worse (here's just one example of a much more thorough analysis in the document):

The presentation actually spends quite a lot of time talking about the problems of any censorship regime, but also noting that various governments basically are requiring censorship around the globe. It's also quite obviously not recommending a particular path, but explaining why companies have gotten more aggressive in moderating content of late (and, no, it's not because "Trump won"). It notes how bad behavior has driven away users, how governments have been increasingly using regulatory and other attacks against tech companies, and how advertisers were being pressured to drop platforms for allowing bad behavior.

The final five slides are also absolutely worth reading. It notes that "The answer is not to 'find the right amount of censorship' and stick to it..." because that would never work. It acknowledges that there are no right answers, and then sets up nine principles -- in four categories -- which make an awful lot of sense.

Be more consistent

• Don't take sides
• Police tone instead of content

Be more transparent

• Justify global positions
• Enforce standards and policies clearly
• Explain the technology

Be more responsive

• Improve communications
• Take problems seriously

Be more empowering

• Positive guidelines
• Better signposts

You can quibble about these, but they're mostly good general principles (though perhaps hard to put into practice). I also think there are some other ideas that are missing -- such as moving control out to the ends of the network, rather than continuing to handle everything at the company level or providing incentives for good behavior -- but this is hardly the list of a company saying it's actively going to censor political speech. Indeed, many of the complaints from people about the moderation is the lack of transparency and consistency in these actions. Though, I'd also argue that this presentation underplays why consistency is so difficult when you rely on thousands of people to make determinations on content with varying shades of gray and no clear answers as to what's "good" or "bad."

So while this document is being used to attack Google, it actually is yet another useful tool in showing (1) just how impossible it is to do these things right and (2) how carefully companies are thinking about this issue (rather than just ignoring it, as many insist). I recognize that's not as "fun" a story as slagging the big bad tech giant for its plan to silence people, but... it's a more accurate story.

Lots of companies like gathering lots of data. Many do this without explicit permission from the people they're collecting from. They sell this info to others. They collect and collect and collect and it's not until there's a problem that many people seem to feel the collection itself is a problem.

The Equifax breach is a perfectly illustrative case. Lenders wanted a service that could rate borrowers quickly to determine their trustworthiness. This required a massive amount of data to be collected from numerous creditors, along with personally-identifiable information to authenticate the gathered data. The database built by Equifax was a prime target for exploitation. That this information would ultimately end up in the hands of criminals was pretty much inevitable.

But Equifax isn't the only credit reporting service collecting massive amounts of data but failing to properly secure it. TransUnion not only collects a lot of the same information, but it sells access to cops, lenders, private investigators, landlords… whoever might want to do one-stop shopping for personal and financial data. This includes criminals, because of course it does.

From January to June 2018, seven members of [Tony] Da Boss’ gang pleaded guilty to various identity theft charges. In total they had caused about $1.2 million in damage, using stolen identities to buy luxury cars and iPhones and to lease apartments in Charlotte. Both they and their crimes would have been quickly forgotten as garden variety larceny were it not for the way they stole those identities.

Cops alleged Da Boss and his co-conspirators had access to the Holy Grail for any Internet-age scam artist: a surveillance technology that police and debt collectors use to track most of the United States’ 325 million inhabitants via their Social Security numbers, license plates, address histories, names and dates of birth. The mass-monitoring tech, called TLO, is a product of the Chicago-based credit reporting giant TransUnion, which last year had revenues of nearly $1.9 billion. One brochure for the service promises access to a startling amount of personal data drawn from myriad sources: more than 350 million Social Security numbers of dead and living Americans, 225 million employment histories and four billion address records. Add to that billions of vehicle registrations and call records and you have one of the largest commercial surveillance databases in existence.

The only thing surprising about this is that it only resulted in $1.2 million in damage. The database -- originally designed to help hunt down child predators -- promises users a "360-degree profile of virtually any person, business or location in the US." In addition to the wealth of personal and financial data, the database also includes surveillance cam photos and license plate numbers, which makes it even more attractive to government agencies and the occasional criminal.

One of the charged suspects worked for a debt collection firm, selling off personal info to criminals for $100/victim. The rest of the gang's access relied on swiped credentials. TransUnion is making millions authenticating US residents who can't even opt out of its collection. But it's not doing much to ensure only authorized users are accessing its system.

Live by the tech, die by the tech.

In June last year, Postal Service investigator Berkland obtained a warrant ordering Google to hand over all the data related to [the gang's Nest] cameras. The company complied, shipping surveillance footage back, along with personal details of its owners. It’s the first known case in the United States in which a federal law enforcement agency has demanded information from a Nest provider, and it has obvious implications for anyone who has purchased a smart home appliance that contains a camera or a microphone.

Unhappily, TransUnion told Forbes this wasn't the first time criminals have gained access to its TLO database. And it certainly won't be the last, either. The privacy and security of Americans is in the hands of companies who collect this information without their permission and which can seldom be bothered to treat this massive stash of personal info with the respect it deserves.

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PEN America, the well known human rights group that focuses on protecting freedom of expression for writers has now sued President Trump for a bunch of different attacks on the First Amendment -- using Trump's repeated tweets and threats as the key evidence in making these claims. The complaint lists out a bunch of different statements and actions by the President that PEN America argues all violate the 1st Amendment. There are four separate actions by the President described in the lawsuit, and let's go through them one by one.

First up is the President issuing an executive order about raising postal rates in retaliation against Jeff Bezos and Amazon, because Bezos (not Amazon) owns the Washington Post, and the Washington Post has been doing pretty strong reporting in revealing all sorts of Presidential misdeeds.

Defendant Trump has repeatedly threatened to use the U.S. Postal Service (“Postal Service”) and its rate structure to retaliate against Jeff Bezos, the owner of the Washington Post (also referred to as “the Post”), whose coverage he dislikes.

On April 12, 2018, he followed through on his threats by signing an Executive Order directing the Postal Service to review its rates. This Order, on information and belief, was aimed at Bezos’s company, Amazon, and was motivated by Defendant Trump’s displeasure at the reporting of Bezos’s other company, the Washington Post.

From the beginning of his campaign for President, Defendant Trump has repeatedly attacked the Post for its coverage of him, calling it biased, fictitious, and “a disgrace to journalism.” In a 2016 interview, he called the Post “a political instrument” that was writing “bad” and “wrong” stories “with no proper information,” and accused its reporters of writing a “false” book about him. He has routinely called the Washington Post “fake news” and personally attacked its writers.

During his presidency, when the Washington Post published unflattering stories about the inner workings of his Administration, Defendant Trump frequently responded with pointed denunciations of the accuracy of the Post’s work. On April 8, 2018, for example, after the Post ran a story about John Kelly’s frustrations as Chief of Staff, Defendant Trump tweeted: “The Washington Post is far more fiction than fact. Story after story is made up garbage - more like a poorly written novel than good reporting. Always quoting sources (not names), many of which do not exist. Story on John Kelly isn’t true, just another hit job!”

Defendant Trump has turned his ire over the Washington Post’s coverage into a vendetta against its owner Bezos, targeting Bezos’s main asset, Amazon, by issuing a series of threats to take governmental action that would harm Bezos and Amazon, and which were eventually acted upon.

During his campaign, Defendant Trump repeatedly threatened future action against Amazon, regularly tied to objections over the Post’s coverage. On information and belief, he did this to signal to Bezos and Amazon shareholders that he could – and would – use his official powers to adversely impact Amazon’s tax status and subject it to antitrust enforcement. As candidate Trump put it at a rally on February 26, 2016, while referring to Bezos and Amazon: “If I become president, oh do they have problems. They’re going to have such problems.”

There's a lot more along those lines... and then it talks about Trump's threats concerning the postal rates:

On December 29, 2017, following a Washington Post story on the Administration’s internal deliberations on how to handle “worries of a tough year ahead,” and a satirical end-of-year piece entitled “Was 2017 the end of something or just the beginning,” Defendant Trump tweeted that the Postal Service should be charging more to deliver Amazon’s packages: “Why is the United States Post Office [sic], which is losing many billions of dollars a year, while charging Amazon and others so little to deliver their packages, making Amazon richer and the Post Office dumber and poorer? Should be charging MUCH MORE!”

On information and belief, Defendant Trump has since repeatedly been told by his staff that his assertions about Amazon’s harmful impact on the Postal Service are incorrect, but he continues to repeat them.

Defendant Trump recently renewed and escalated his threats of action against Amazon following unflattering reporting in the Washington Post detailing the damage done to Trump’s family businesses by allegations involving adult film actress Stormy Daniels and Robert Mueller’s investigation into the 2016 election. Defendant Trump repeated his false claims about costs to the Postal Service and his threats to raise Amazon’s shipping rates. Once again, he left no doubt that his motivation was animus against the Post, again calling it a “lobbyist” and “weapon” for Bezos.

In a series of tweets from March 29, 2018 to April 3, 2018, Defendant Trump made repeated false statements about Amazon and issued repeated threats to raise its postal shipping rates. Over the course of these threats from President Trump, Amazon sustained a $60 billion dip in market value.

On information and belief, Defendant Trump’s attacks on Amazon were motivated by animus toward Bezos and the Washington Post on account of its coverage of him and his Administration. For example, in an April 13, 2018 article by Maya Kosoff, Vanity Fair quoted White House sources as saying that President Trump “has zero respect” for the Washington Post and wants to “[f--k] with” Bezos as a result.

On April 12, 2018, Defendant Trump followed through on his retaliatory threats, issuing an Executive Order directing a review of the Postal Service’s “unsustainable financial path.” The order included several provisions directed at Amazon, including an order to review the “expansion and pricing of the package delivery market.”

On information and belief, President Trump had by this time repeatedly and personally directed the Postmaster General to raise Amazon’s rates.

Even during the pendency of the review, Defendant Trump continued to threaten further action against Bezos and Amazon and linked his motivation clearly to the Washington Post’s coverage. On July 23, 2018, immediately following reports in the Post that President Trump was unhappy with the progress of talks with North Korea, the President tweeted that “[t]he Amazon Washington Post has gone crazy against me ever since they lost the Internet Tax Case in the U.S. Supreme Court,” i.e. South Dakota v. Wayfair, Inc. He then renewed his threats to take antitrust action against Amazon and to raise its postal delivery rates. President Trump tweeted “Next up is the U.S. Post Office [sic] which they use, at a fraction of real cost, as their ‘delivery boy’ for a BIG percentage of their packages. . . In my opinion the Washington Post is nothing more than an expensive (the paper loses a fortune) lobbyist for Amazon. Is it used as protection against antitrust claims which many feel should be brought?”

On October 11, 2018, the Postal Service announced proposed rate hikes for its services, to include rate increases of up to 12 percent for the Parcel Select service used by Amazon. On information and belief, this action by the Postal Service would not have been taken but for the President’s clearly expressed desire to punish Amazon for the reporting of the Washington Post.

This really seems like a case where Trump's own words and tweets could potentially sink him. Normally, it would be pretty difficult to directly link something like raising postal rates on Amazon to direct retaliation for coverage in the Washington Post, but as the complaint lays out, because Trump himself has directly (incorrectly) argued that Amazon and the Washington Post are the same, and that the effort to raise rates was to punish Bezos and the Post, it seems like there's a stronger argument here.

The larger issue may be standing. There appear to be strong arguments here for the Washington Post and possibly Bezos himself and/or Amazon to have better standing, but PEN America is a tougher one. The organization tries to get around this by arguing that its members write for the Washington Post and that this has the potential to harm them. That seems like the key point that will be challenged in court. If they can get over the standing question, then it seems like they have a strong argument, mainly because Trump can't keep his mouth shut.

The second issue seems like more of a long shot to me. It's about the DOJ's effort to block the AT&T takeover of Time Warner (that effort has mostly failed). PEN America's suit argues that the DOJ's antitrust enforcement here was really about Trump's well-known animus towards CNN. And he did sometimes mention the merger, as detailed in the complaint:

Defendant Trump has done far more than exercise the right to make known his dislike of CNN’s reporting. At a rally during the 2016 campaign, Defendant Trump threatened to block a proposed merger between Time Warner, CNN’s parent company, and AT&T, once he gained control of the DOJ, and made clear his retaliatory motive for doing so. On October 22, 2016 in Gettysburg, Pennsylvania, he denounced the AT&T–Time Warner merger, telling his audience that CNN was part of the media “power structure” trying to suppress his votes. “AT&T is buying Time Warner and thus CNN,” Defendant Trump said, declaring it “a deal we will not approve in my administration.”

Once in office, Defendant Trump followed through on this threat. On information and belief, during the pendency of the AT&T–Time Warner merger review process, advisers to President Trump discussed using the merger approval application as “a potential point of leverage over [CNN].”

On information and belief, DOJ demanded the sale of CNN as a condition of its approval of the merger, leading a source close to the merger process to opine that “[t]his has become political . . . It’s all about CNN.”

This claim seems much weaker than the first. To be clear, it has the same standing issues as the first, but even if we get past those, vague threats to use antitrust action here doesn't mean that's actually what happened. Obviously, the discovery process here would be a big deal, and perhaps they can turn up a smoking gun. But there were plenty of legitimate antitrust reasons to block this merger, so the direct causal line here does seem tough to prove.

Separate from that, however, are threats to use DOJ enforcement powers against Google and other social media companies over the (made up) claim of political bias in search and recommendations. Here, as we've argued, the DOJ appears to be directly positioning the First Amendment-protected moderation and ranking decisions of internet companies as some sort of anti-trust violation. That's clearly in violation of the First Amendment, and the PEN America complaint highlights this as well:

Defendant Trump’s threats to use the DOJ to influence the flow of information to the public is not limited to CNN. On August 28, 2018, he complained, via Twitter, that:

Google search results for ‘Trump News’ shows only the viewing/reporting of Fake News Media. In other words, they have it RIGGED, for me & others, so that almost all stories & news is BAD. Fake CNN is prominent. Republican/Conservative & Fair Media is shut out. Illegal? 96% of . . . results on ‘Trump News’ are from National Left-Wing Media, very dangerous. Google & others are suppressing voices of Conservatives and hiding information and news that is good. They are controlling what we can & cannot see. This is a very serious situation-will be addressed!

Hours later, White House economic advisor Larry Kudlow, standing outside the White House, threatened that the Trump Administration is “taking a look” at imposing regulations on Google.

On September 5, 2018, Attorney General Jeff Sessions announced his intention to convene a meeting of Republican state attorneys general to discuss a possible federal investigation of whether Google, Facebook, and other social media companies are violating antitrust and free speech laws.

On September 22, 2018, the White House leaked a draft Executive Order that would instruct federal law enforcement and antitrust agencies to open investigations into social media companies. This leak was intended to, and did, have a negative market impact on these companies. The intent of leaking this information was to show these companies and other speakers the President dislikes that his White House has the power to significantly injure them with a simple leak if it dislikes their content. The intent of leaking this information was also to incentivize investors to pressure these companies to modify their content to be more to the liking of the President in order to avoid retaliatory actions that could impact the investors’ bottom line.

Once again, the standing issue is a big one here that may be difficult for PEN America to get past. But this kind of activity has clear First Amendment problems. We detailed out a bunch of cases that highlighted how the courts have ruled against politicians and government officials who use the power of their office to intimidate companies into publishing (or not publishing) protected speech.

Next up is Trump's semi-regular threats to "pull" the licenses from major TV networks over negative coverage of his Presidency. He does this every so often even though there aren't any such licenses to pull. Even networks like NBC, ABC and CBS have local licenses for their affiliates, but not a general license for their parent companies -- and Trump can't "pull" those non-existent licenses anyway.

Minutes later, Defendant Trump followed that tweet with another threatening NBC’s broadcast license. “With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!”

Later the same day, Defendant Trump broadened his threat to more outlets: “Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!”

Beyond the standing question (again), the issue here will be the lack of action. It's just Trump venting stupidly on Twitter, and again such licenses don't even exist. Obviously, PEN's argument here is that the local affiliate licenses do exist, and these threats to pull general licenses may be interpreted by them as a threat to pull the local licenses -- and that could impact and influence coverage at the local level. But... that seems like much more of a stretch than the other claims.

Next up are attempts to limit the access of White House reporters to information in the White House.

Defendant Trump’s behavior in denying journalist critics access to information from the White House and about his Administration is a pattern dating back to his campaign. Prior to the election, on August 25, 2015, Defendant Trump had Jorge Ramos, Univision’s lead anchor, removed from a press conference after Ramos tried to ask Defendant Trump a question about immigration policy.

While on the campaign trail, Defendant Trump barred reporters from several news organizations, including the Washington Post, from obtaining press credentials at his rallies, news conferences, and other events.

As President, Defendant Trump has continued to threaten journalists whose coverage or questioning he found unfavorable to him or his Administration with revoking their access to official Administration and White House events.

On information and belief, Defendant Trump has repeatedly directed White House staff to ban reporters critical of his Administration from covering official events or to take away their press credentials. This included reporters from the Washington Post, CNN, and NBC News, and Defendant has specifically told his staff to consider blacklisting Jim Acosta of CNN and April Ryan of the American Urban Radio Networks in retaliation for their coverage, of which he disapproves.

Again, there's a standing issue here, and I'm a bit surprised PEN America didn't find a journalist to be a co-plaintiff at least on this claim, as that would make it stronger. Beyond that, there are some questions about what standards the White House uses in favoring some journalists over others, that could potentially raise some First Amendment issues. If the decisions are specifically based on their coverage and if it's positive or negative, then there's a stronger case there. The White House, of course, will likely suggest there are other reasons for limiting access to certain journalists.

In the end, this should be an interesting First Amendment case to follow, though I do think the standing question will be a tough hurdle for PEN America, without specifically naming individuals or organizations directly harmed by these actions (some of which do appear to raise big First Amendment questions).

AT&T recently defeated the DOJ's challenge to their $86 billion merger with Time Warner thanks to a comically narrow reading of the markets by U.S. District Court Judge Richard Leon. At no point in his 172-page ruling (which approved the deal without a single condition) did Leon show the faintest understanding that AT&T intends to use vertical integration synergistically with the death of net neutrality to dominate smaller competitors.

In fact, net neutrality was never even mentioned by the DOJ at the multi-week trial. Likely in part because the DOJ didn't want to highlight how the Trump FCC was screwing everybody over with one hand, while the Trump DOJ was allegedly suing AT&T to "protect consumers" with the other (some argue that Trump's disdain for CNN and adoration of Rupert Murdoch were the more likely motivators). But if you ignore the fact that AT&T plans to use its monopoly over many broadband markets (from residential to cellular tower backhaul) combined with the death of net neutrality to make life difficult for consumers and competitors alike, you're not paying any attention to history or to AT&T's repeated nods in that general direction.

During the first trial, you'll recall the DOJ and its hired economists repeatedly pointed out how AT&T's vertical integration and ownership of "must have" content (like HBO) would provide the Dallas-based giant every incentive to raise TV rates. AT&T lawyers laughed those findings off, then immediately proceeded to...raise rates and hammer users with bogus new fees as it attempted to deal with the massive debt incurred from the merger. Those rate hikes were a major reason the DOJ decided it should try and appeal Leon's initial ruling.

As the DOJ works on its appeal of Leon's ruling, the government continues to point out in filings (pdf) that all of its economic models show that AT&T's ownership of Time Warner and DirecTV will provide the company with endless opportunities to raise rates on competitors and consumers:

"The bargaining model is an accepted and reliable predictor of competitive effects in the pay-television industry, and Professor Shapiro used reasonable inputs to quantify the magnitude of cost increases that AT&T would impose on rivals through negotiations—and the consequent higher prices for consumers—separate and apart from the non-quantifiable harms of the merger, such as reduced choice and stymied innovation...Given the district court’s illogical conclusion that the merger will lead to no change in bargaining leverage, and its erroneous finding of no consumer harm, a remand is necessary."

One of the major problems here is that lobbying has weakened antitrust enforcement so severely, government lawyers are now trapped within very narrow confines of economic theory to prove a point that should be common sense (especially if you've watched AT&T do business for more than five seconds): AT&T has a long history of behaving anti-competitively, and being even larger is going to make that even easier. There's roughly a million examples out there showing how AT&T exploits and abuses its captive customers with an ocean of bad behaviors.

That this will get worse as AT&T grows larger and more powerful shouldn't be a hard argument to make, even for lawyers trapped in the narrow hallways of accepted economic theory. And again, this is all before you even get to the fact that AT&T lobbyists just convinced the FCC to neuter itself on demand for no adult policy reason beyond it was what AT&T executives wanted.