The US government isn't supposed to seek general warrants. And US judges aren't supposed to approve them. The Fourth Amendment requires a showing of probable cause to justify the intrusion by the government into citizens' lives and property. None of that appears to have happened in this case, brought to us by Thomas Fox-Brewster at Forbes.

Back in March, as it investigated a spate of armed robberies across Portland, Maine, the FBI made an astonishing, unprecedented request of Google. The feds wanted the tech giant to find all users of its services who’d been within the vicinity of at least two of nine of those robberies. They limited the search to within 30-minute timeframes around when the crimes were committed. But the request covered a total space of 45 hectares and could’ve included anyone with an Android or iPhone using Google’s tools, not just the suspect.

This wasn't just a demand for device IDs. The FBI -- as detailed in the warrant request [PDF] -- wanted everything Google had on hand.

In addition, for any Google accounts linked to the accounts or identifiers listed in Attachment A by HTTP cookies, recovery email address, or telephone number, the Provider is required to disclose all records or other information regarding the identification of the account, to include full name, physical address, telephone numbers and other identifiers, records of session times and durations, the date on which the account was created, the length of service, the IP address used to register the account, log-in IP addresses associated with session times and dates, account status, alternative email addresses provided during registration, methods of connecting, log files, and means and source of payment (including any credit or bank account number).

This is the sort of rummaging the Constitution is supposed to prevent. It's understandable the FBI needed some assistance tracking down robbery suspects, but this grab for a wealth of information about 45 hectares of people milling about minding their own business, isn't. And this sort of thing isn't limited to the FBI. As was covered here earlier this year, the Raleigh PD did the same thing at least four times during criminal investigations in 2017.

In this case, hundreds of people would have been swept up in the dragnet. Certainly, some post-acquisition data sifting would have occurred to narrow it down to people/devices near the location of robberies when they occurred. But whatever happens after info is obtained cannot be used to justify the original acquisition. This warrant never should have been signed.

If there's any good news coming out of this, it's that Google either didn't hand over the info requested or didn't have the info requested on hand.

Google was expected to return the information on April 19, but didn’t. The FBI filed a motion to extend the time it had to get the data, which a judge granted. But Google never handed it over, despite another three FBI motions to extend. Though the prosecutor, assistant U.S. attorney Michael Conley, said a fifth motion would be filed if the data didn’t arrive, the government gave up the ghost earlier this month.

A final returned warrant, dated August 6, simply stated: “Google did not provide information responsive to the warrant.”

The reason for this is unknown. Google provided no comment to Forbes and Brewster-Smith points out the company never filed an objection to warrant itself. It's hard to believe Google didn't have any of this info on hand -- especially considering Google has collected location data even when device users have turned location services off. If nothing else, it should have had some data points on hand. Perhaps there was a lot of discussion behind the scenes between lawyers from both sides that never made it to court but did result in the FBI's please-don't-call-it-"general" warrant being denied.

It also may be the FBI didn't press the issue because it didn't have much confidence in securing a favorable ruling from a judge higher-placed than the magistrate that signed the warrant request. The last thing the FBI wants is precedent set forbidding this sort of collection effort.

Clogged drain? Engine trouble? It helps to be able to see just where the problem is, which is where this handy Waterproof WiFi Wireless Endoscopic Camera comes in. With an 8-way adjustable LED, this 1080p HD camera can slip into the tight or dark spaces where fingers or eyes can't and send a feed right back to any device you're using via WiFi. It's important to diagnose a problem at the source. This camera will help you get there for only $40.

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.

Back in 2010, we posted an infographic from The Root showing just how little money that was spent on music actually went to the artist:

In 2015, using a report put out by Ernst & Young, we put together our own graphics showing how much of streaming went to the actual artists:

You may be noticing a pattern? Very little of the money being made actually goes to the artist. Now we have even more data on this. Citibank recently released a massive and incredibly thorough report on the entire music industry showing how and where the money is made. There's lots of interesting and useful information in the report, but the headline grabbing fact is that musicians end up with just about 12% of global music revenue. As I said, the report is incredibly thorough (and a really useful read if you want to get a sense of just how convoluted and complex the music business really is), but the key is that there was ~$43 billion spent on music in 2017. Approximately $25 billion of that went to everyone (outside of the labels) who helped make the music available: digital streaming services, retail stores, concert venues:

That leaves $18.2 billion in money distributed out to the labels. But of that amount, only about $5 billion actually goes to artists, which means right around 12% goes to artists:

Of course, it's especially notable that a significant chunk of that revenue going to artists actually comes from... live performances:

This shouldn't be a surprise. Hell, we've spent the better part of two decades here talking about how artists need to embrace "scarcities" where they can make money, with live shows being a big part of that. And we kept having people from the recording industry scream about us saying that, but the numbers above don't lie. Citibank notes that one of the big reasons live drives so much artist revenue: You don't have the same amount of monopolistic middlemen sucking the artists dry:

If we divide artists’ incomes into four groups — Concerts, Music Platforms (Spotify, Apple, YouTube, Sirius, FM radio), Music Publishing, and Music Sales (CD, digital downloads) — it’s clear that concerts have, by a wide margin, contributed most significantly to the growth in an artist’s income. That’s because music labels don’t directly participate in concert economics. But, they do participate in the revenues collected by the various music platforms (like Spotify, Apple, Sirius and YouTube).

That statement isn't 100% accurate, as many artists these days are signed to so-called 360 contracts, in which some of their live revenue also goes to the labels, but the general concept holds. In short, reading through this report, you see that the entire music ecosystem is a huge mess. And it's not hard to see how this developed. Basically with each new layer of innovation, rather than rethinking how we handle music and copyright, we simply slapped on another set of royalties and rights. That's why there are so many different kinds of royalties that have to be paid to do basically anything in music (synch rights, mechanicals, performance rights and more for each the sound recording and the composition). In the Citibank report they show this nice graphic, which I'd argue overly simplifies the reality:

But each of these really seems to be a use of copyright to prop up another set of middlemen, and remove the effects of competition and innovation from ever touching them. And so we keep building this ever more convoluted house of cards, built on a giant mess of a copyright system, where massive inefficiencies mean that these propped up middlemen end up taking home most of the money.

And, as the Citibank report nicely summarizes, thanks to the internet, artists could connect much more directly with fans and take home a lot more money:

Oh, and the real kicker in all of this? For years, the record labels (and some musicians) have been screaming about how piracy is to blame for people no longer spending on music. Except, of course, that's hogwash. As we pointed out a few years back with our very own Sky is Rising report (and, to a lesser extent, with our Carrot or the Stick? report) there's still plenty of spending happening on music. Indeed, the Citibank report shows consumer spending at an all time high:

In short, lots of money is still going towards music, but thanks to a ridiculous historical legacy of copyright law that kept piling on new rights, rather than cleaning out obsolete ones, there's a massive inefficient infrastructure whose only purpose basically seems to be to collect a bunch of the money for themselves, leaving 12 cents on the dollar for the actual artists.

Last week we noted how an FCC "oversight" hearing fell well short of anything actually resembling, well, actual oversight. Three FCC staffers had just been caught making up a DDOS attack and misleading Congress, the press and the FBI about it -- yet the subject was was barely even broached by lawmakers on either side of the aisle. It was another embarrassing example of the absence of anything resembling genuine accountability at the agency.

Fortunately one subject that did get a little attention was the FCC's comically-terrible broadband maps, something we've covered at great lengths here at Techdirt. If you want to see our terrible broadband maps at work, you need only go visit the FCC's $300+ million broadband availability map, which is based on the Form 477 data collected from ISPs. If you plug in your address, you'll find that not only does the FCC not include prices (at industry behest), the map hallucinates speed and ISP availability at most U.S. addresses.

For example, at my home in Seattle there's only one real ISP available: Comcast. But according to the FCC's data, I supposedly have seven broadband providers to choose from:

Three of those options (CenturyLink DSL, CenturyLink fiber, and Startouch Broadband) don't actually exist at my address, something I've confirmed with company engineers. Another three are satellite broadband providers, whose sky-high latency, high prices and daily or monthly usage caps make the services barely qualify as real broadband. That again leaves just Comcast as my only fixed line broadband option (aka a monopoly) in Seattle, supposedly one of the bigger tech-oriented cities in America. If you plug your address into the FCC's map you'll likely see similarly-misleading results.

As the FCC eyes where to deploy $4.5 billion in new rural broadband subsidies, more and more lawmakers are growing annoyed at the FCC's failure on this front. That includes Senator Jon Tester, who at last week's hearing proclaimed that the FCC's broadband maps "stink", and figuratively suggested that somebody (¯\_(ツ)_/¯) should have their "ass kicked" for the failure:

"We've got to kick somebody's ass," he told the chairman. Pai joked that the FCC would take that as a figurative, rather than literal, congressional directive. Tester aligned himself with Democrat Commissioner Jessica Rosenworcel's comment that without good maps, a lot of money would be unnecessarily spent. Tester also said he was pleased Verizon was rolling out 5G in Indianapolis and other big markets, but said he was afraid they would never get it in Montana."

While hearing attendees giggled and chortled about this figurative ass kicking somebody was supposed to receive, nobody actually addressed why this has been a problem for the better part of the last two decades. The real reason our broadband maps remain terrible is that telecom monopolies would prefer the public and lawmakers not receive an accurate picture of American broadband, lest somebody notice the mammoth deployment gaps and the countless American markets that lack any meaningful broadband competition whatsoever (especially at faster speeds).

The source of the FCC's mapping data is the Form 477 data the agency collects from ISPs. This data has long been overly optimistic, and historically nobody really audits data provided by ISPs with a vested interest in downplaying deployment and competitive gaps. Worse, FCC policy dictates that the FCC deems an area "served" with broadband if just one ISP in a census tract has broadband. When somebody suggests that we should perhaps improve this data collection methodology, large ISPs like AT&T and Verizon pretty routinely lobby to prevent that from actually happening.

For example, when the previous, Wheeler-run FCC suggested we improve this methodology (pdf), Verizon complained in a filing (pdf) that more accurate data would be too costly and difficult for Verizon to adhere to:

"...the Commission must ensure that the costs of any new broadband data collection requirements do not outweigh the benefits. With respect to the Form 477, the Commission should avoid collecting data that is so detailed or voluminous that it is expensive for providers to produce, difficult for the Commission to process, or unhelpful to the public."

Again though, ISPs like Verizon aren't really worried about cost, the benefits to the public or how much work FCC staffers would have to do to process it, they're simply worried that if we had accurate broadband maps, somebody might realize that U.S. broadband is a terrible hodgepodge of barely-motivated monopolies abusing angry and captive customers. Accurate data would highlight how Verizon has all but given up on upgrading or repairing aging DSL in countless states, and pricing data specifically would show how Americans pay some of the highest prices for the slowest service among all developed nations.

Once Ajit Pai was appointed FCC head, efforts to shore up broadband mapping were quickly forgotten. And again, you'd think that somebody at last week's "oversight" hearing might have pointed this out. Instead, hearing attendees pretended that the United States' terrible broadband maps had simply mysteriously materialized out of the ether, a blameless phenomenon apparently caused by shadowy gremlins. In reality, it's long been abundantly clear why nobody wants to fix the problem: deep-pocketed ISPs by the name of Verizon, Comcast, Charter and AT&T don't want the problem fixed.

If more accurate data further highlighted the massive problems in the U.S. broadband market, somebody might just get the crazy idea to actually fix it, and we certainly wouldn't want that. Instead, for several decades now, the FCC and U.S. lawmakers have happily donned their ISP-provided rose-colored glasses, then played dumb when their real world experience doesn't quite add up.

Governments -- which will process requests from citizens in statutorily-required time almost zero percent of the time -- never think the private sector moves fast enough. The government says "Jump" and then immediately asks why the jumping wasn't already in progress when it ordered the jumping to commence.

Content that isn't even of the "I know it when I see it" variety isn't being taken down quickly enough for the EU. Various members have implemented their own 24-hour policies for the removal of everything from "hate speech" to "extremist content" -- both particularly difficult to classify immediately when context and newsworthiness must be considered.

The EU Commission is reeling in the leash it has attached to US social media companies. It pitched the idea back in March but now appears to following through with its threats. The latest move towards impossibility is detailed by The Financial Times.

Brussels plans to force companies including Facebook, YouTube and Twitter to identify and delete online terrorist propaganda and extremist violence or face the threat of fines.

The European Commission has decided to abandon a voluntary approach to get big internet platforms to remove terror-related videos, posts and audio clips from their websites, in favour of tougher draft regulation due to be published next month.

Here's the stipulation that will turn popular social media sites into EU-owned ATMs.

Although details of the regulation are still being drawn up inside the commission, a senior EU official said the draft legislation was likely to impose a limit of one hour for platforms to delete material flagged as terrorist content by police and law enforcement bodies.

Imagine imposing this sort of time limit on anything a government agency does. Imagine the outcry about the impossibility of serving citizens in a timely fashion. But nothing's too short for the private sector, which can set about nuking content indiscriminately just in case, rather than write checks to the EU on an hourly basis.

The impetus is recent terrorist attacks, of course. Any amount of ridiculousness can be excused in the name of public safety and national security, even if the resulting mess has almost zero impact on either of those two concerns.

The incumbent social media sites already have algorithms and live moderation teams addressing questionable content. And it's still not enough for insatiable government officials. Entrants into the market may as well not even bother. They cannot hope to stay alive, much less compete, if governments are going to hold them directly responsible for content posted by their users.

Then there's the fact that burying stuff as soon as it shows up does little to aid investigations or the pursuit of terrorists. Ask anyone who's witnessed the damage done to law enforcement efforts by SESTA/FOSTA -- a law touted as a crushing blow to human trafficking. All it's done is make traffickers harder to find by forcing them to utilize less visible platforms and communication methods. The same thing is happening here and every time "terrorist content" is nuked, it makes martyrs of villains and proves to acolytes and new recruits the West is out to get them.

The EU would be better off letting the voluntary measures already in place go to work. The press for one-hour turn time reeks of rent collection, not honest concerns about public safety.

We've often made the point in the past that much of the trademark legal strife and bullying that occurs throughout the country ought to be squarely blamed on a USPTO that can't be bothered to put much thought into the trademarks it approves. All too often, the Trademark Office acts as a mindless rubber stamping facility, pushing through the application paperwork without thinking about the broader consequences of its approvals, nor the legal minutia involved into what makes a term a valid trademark. That bureaucratic lethargy is precisely how you get trademark bullies wielding trademarks that should never have been granted. And, because trademark bullying generally works, it's rare that anyone outside the USPTO is actually forced to clean up this mess it created.

But, on rare occasions, sanity puts a win up on the board. Such is the case with Express Homebuyers USA of Virginia, which defeated WBH Marketing Inc.'s trademark suit in which the latter claimed infringement based on its registered trademark for the phrase "We Buy Houses."

In a thorough and well-reasoned decision, Judge T.S. Ellis, III, of the Eastern District of Virginia, concluded that the federal trademarks “We Buy Houses” and “Webuyhouses.com” are generic, are not protected under trademark law, and therefore should be canceled. The court found that the phrase “we buy houses” has been used in the real estate industry since as early as 1898 in millions of newspapers and advertisements. That evidence, coupled with other evidence and the testimony of Express Homebuyer’s CEO Brad Chandler, was “overwhelming and unrefuted.”

Finding that the marks are generic and should be canceled was “logical” according to Judge Ellis because “allowing one member [of the real estate industry] to have exclusive use of the phrase ‘we buy houses’ would be the equivalent of allowing a professional football team to trademark ‘we play football’ or a fast-food chain to trademark ‘we sell burgers,’” which are phrases that should be available for all to use.

First, if the name T.S. Ellis is ringing in your ears, yes, he's the judge presiding over the Paul Manafort trial. That isn't relevant to this case, other than being an encouraging sign that the judge overseeing Manafort's case has some grasp of common sense. Beyond that, this case should be a wonderful counterexample for any proponents of the USPTO's staff when it comes to the job they do in approving trademarks. To approve "We Buy Houses" for the real estate market as a trademark requires such a dearth of cognition as to undermine every other bit of work that office does. As Ellis points out, allowing one entity in real estate to lock up the phrase would enable the exact kind of bullying that WBH Marketing subsequently engaged in by going after Express Homebuyers for daring to say that it too, yes, buys homes.

If the ruling had gone the other way, it would have been an unmitigated disaster for the real estate industry writ large.

The ruling is significant because, if Mr. Brandt’s company prevailed, thousands of real estate investors across the country could have been prohibited from using the vitally important phrase “we buy houses” in their marketing and advertising materials.

Having concluded that the trademarks “We Buy Houses” and “Webuyhouses.com” were generic and should be canceled, Judge Ellis also dismissed WBH Marketing’s claim that Express Homebuyers infringed on the trademarks. Judge Ellis thus threw out WBH’s multimillion dollar damages claim against Express Homebuyers.

This country is practically starving for this kind of result for trademark bullies. Too often these bullies are allowed to cut and run from trademark suits when it's clear their own trademarks are in danger of invalidation. Why in the world WBH Marketing elected to let this thing get to a ruling is completely beyond me, but invalidating bad trademarks that the USPTO is only too happy to approve can't be fully a function of bullying hubris.

But for this case, at least, the right outcome was achieved.

Turkish president Recep Erdogan figures the best critic is a silenced critic. Determined to "earn" the respect of people worldwide, Erdogan and his government have engaged in unprecedented censorship. This goes far beyond the punishment of its own citizens. Erdogan has tried to secure charges and prosecutions from other governments against their own citizens for having the temerity to not take him as seriously as he takes himself.

Erdogan takes down newspapers and platforms with equal aplomb. He does this to stop things like the following from circulating:

It doesn't work, of course. Nothing gets censored worldwide and whatever censorship hits home can be circumvented. But of all the internet targets, Twitter is Erdogan's absolute favorite. The Committee to Protect Journalists has done the math. Its excellent article on Erdogan's censorship activities makes it clear that all other countries are merely pretenders to the throne when it comes to talking Twitter into doing their dirty work.

Over 1.5 million tweets have been withheld in Turkey by Twitter, thanks to Turkish government demands. Frequently targeted by removal requests are citizens who would normally be afforded extra speech protections in countries not run by a thin-skinned thug. And an American company playing ball with an authoritarian doesn't leave much room for recourse.

When CPJ reviewed a Buzzfeed News database of over 1,700 accounts withheld in one or more countries, along with court orders uploaded by tech companies to Harvard University's Lumen database, tweets, Twitter lists, and news reports, it was able to identify at least 59 Twitter accounts that belong to journalists and media outlets censored using the CWC tool in Turkey. As of late July, those 59 accounts had a combined following of over six million, in a country of about 11 million Twitter users.

Journalists whose accounts have been censored by CWC [country withheld content]requests told CPJ that Twitter is inconsistent with its compliance with such requests and complained about the lack of remediation options.

Journalists tweeting about the decline of press freedoms in Turkey are seeing their tweets removed by a compliant Twitter. And this is all Twitter has to say about its compliance in the decline of press freedoms in Turkey:

Colin Crowell, Twitter's head of global public policy, told CPJ, "If [we] don't use CWC, then the alternative is to remove [the content] globally [then] nobody can see it."

But that simply isn't true. Twitter has to know there's a third option: no removal at all. Even if the request is lawful in Turkey, Turkey's speech laws are terrible. Twitter doesn't have to make things worse by letting the Turkish government steamroll critics via removal requests. Sure, that means it might lose access to an entire country, but it shouldn't be so willing to be an extension of an abusive government.

It's not just a Twitter problem. Google's decision to help build the Chinese government a censored search engine is unacceptable, no matter how many more millions of users Google might reach.

Turkey's government may drive the content removal business on Twitter, but there's censorship everywhere from authoritarian regimes being aided by US companies that should act as a bulwark against tyranny. At the very least, there should be constant pushback against demands like these, rather than acquiescence under the disingenuous theory that blocking content worldwide is the only alternative.

Recently, Attorney General Jeff Sessions attended the Eighth Circuit Judicial Conference. Considering he was speaking to members of the judiciary, it seems odd he would have used this occasion to deliver a rant against the judicial system.

As a prosecutor, Sessions greatly benefited from the system he now maligns. The justice system barely enters the lives of those being prosecuted. An adversarial system designed to provide the accused with due process is rarely engaged. The outcome is predetermined, except for arguments over minor details. As the Supreme Court wrote in a 2012 decision, the criminal justice system is a downhill slope for prosecutors who rarely need more than a light shove to put someone behind bars.

Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. [...]

The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.”

Having been a beneficiary of a barely-engaged court system for so many years (and now overseeing more beneficiaries as the head of the DOJ), you'd think Sessions would be grateful for all the years the courts rendered themselves pretty much invisible.

Instead, Sessions wants to complain about a supposedly unfair system that keeps acting as a check against the Executive Branch… you know, exactly what it's supposed to be doing.

I am the top lawyer for the Executive Branch. It is a co-equal branch. It too is entitled to proper respect from the courts. Our Assistant U.S. Attorneys, advocating for legal positions—even if the judge may not agree—are due proper respect.

Judges are not sent from Olympus. They are not always correct. Indeed, our appeals in a number of cases have borne fruit in whole or in part.

Some of the erroneous rulings have been quite costly to the taxpayers, have delayed executive action, and have engendered criticism of the President, and the Department of Justice, in the media and various groups.

In Sessions' mind, "co-equal" does not mean counterbalanced or of equal power. Sessions' adheres to an Animal Farm version of equality, where the Executive Branch is more equal than the court system he feels isn't handing out enough respect. This is a truly bizarre -- and somewhat frightening -- take on the legal challenges filed against Trump's executive orders.

Some challenges have been denied. Others have been granted. Injunctions have been issued, with a few of those rolled back after an appeal. This is the way the judicial system is supposed to work, but Sessions wants to hate on it for functioning exactly how it's designed to.

We have a government to run. It is not the duty of the courts to manage this government or to pass judgment on every policy action the Executive Branch takes.

Ah, but it is the duty of the courts to "manage the government" or "pass judgment on policy actions." If policies are challenged in court -- by citizens -- the court has to take the case. Just because Sessions doesn't like some of the outcomes doesn't mean the system isn't working. But it is plainly disingenuous to claim judges have no business passing judgment. JFC, it's right in the name.

For all the talk about "co-equal," it's clear Sessions -- as the head of the goddamn Department of Justice -- feels the justice system has too much power.

We are also defending the constitutional structure of the federal government against nationwide injunctions—orders by a single district judge that block the entire Executive Branch from enforcing or implementing a statute, regulation, executive order, or policy.

You could also call them “non-party injunctions” or “global injunctions”—because they apply across America or even the world, and grant relief, whether they want it or not, to those who are not parties to the case.

Scholars have not found a single example of this type of remedy in the first 175 years of the Republic. But the Executive Branch has been hit with 22 in less than two years’ time in office.

Wow. That sures sounds like the judiciary has it in for the President. Let's see if this unprecedented thing has any precedent…

This goes beyond politics. This has been a problem for administrations of both parties. Until President Trump, the President with the most limitless injunctions was President Obama. Before him, it was President Clinton.

That's Sessions undercutting his own narrative. What this looks like isn't some grotesque misuse of judicial power. No, administrations regularly setting new injunction records indicates to me the Executive Branch has routinely overstepped its Constitutional boundaries before being reined in by courts -- courts designed from the ground up to act as check against overreach by other branches of the government.

The very thing he complains about -- being "held back" by the judicial branch -- he claims to celebrate towards the end of his prepared remarks.

Our Constitution has governed us from the horse and buggy age to the digital age. Ours is the oldest and most resilient constitution in the world. We don’t need conservative judges or liberal judges. As Chief Justice Roberts testified, we just need judges to adjudicate disputes, calling the balls and strikes as they are without taking sides in the game.

But we must be vigilant to our Constitution's design and to its most central feature: the separation of powers.

That is what the American people rightly expect from those who enforce the laws of the United States.

Let's be vigilant to protect the separation of powers, says Sessions, as he suggests the judicial branch might need some trimming if it won't stop standing in the way of questionable executive orders and policies. Good lord. You'd expect this sort of nonsensical drivel from internet randos, not the head of the DOJ.

Sessions is like anyone else: the courts are working when they deliver decisions he likes and a complete failure when they don't. That's fine. And that's expected, especially when partisan agitation seems to be at an all-time high. But that's not the sort of thing you tell a judiciary conference. That's the crap you save for preaching to the converted.

The real ugliness, though, is this: Sessions obviously feels the courts should serve the Executive Branch, no matter how many times he says he values the system of checks and balances that prevents the judiciary from being a subsidiary of the presidential administration. Fortunately, Sessions only has the power to bitch about it. If he could do any real damage to the court system itself, he'd be dangerous. This mini-rant shows Sessions is a small man with a small mind and a willing participant in spreading the Trump Administration's narrative of victimization -- something painfully embarrassing to observe when its being issued by the people leading one of the most powerful nations in the world.

Phew. After a surprising (and very, very weird) ruling in a California state court earlier this summer, that suggested that a well known racist might have a legitimate legal case against Twitter for kicking him off their platform, an appeals court has quickly and thoroughly corrected that error. To understand what happened here requires a little bit of background, so let's dig in.

Back in March, we wrote about a silly case filed by noted racist (he prefers "race realist" or "white advocate" but come on), Jared Taylor, who had been kicked off Twitter. Taylor sued, claiming that Twitter kicking him off the platform violated various rights. As we noted at the time, the case had no chance, and would be tossed out on CDA 230 grounds, as the law makes it clear that platforms cannot be liable for their moderation choices. Indeed, the whole reason CDA 230 was first created was in response to a horrible court ruling that said moderation choices could make you liable. CDA 230 was a correction to that mistaken court. And in the two decades since then we've seen all sorts of attempts by people to argue their way around CDA 230 and nearly all of them fail, and thus we expected this one to fail easily. As I noted in that original post, I had spent some time going back and forth with some of Taylor's lawyers, who seemed surprisingly uninformed about CDA 230.

So, I will admit that I was a bit surprised back in July when the court refused to dump the case. While the official ruling came in July, the Judge's rational was laid out at a hearing in June, in which he did agree to dump some of the claims, but kept one claim: an "unfair competition" claim. The reasoning was... very, very strange. Basically, the court claimed that under California law, Taylor could claim that Twitter's terms of service were "unconscionable" because they said the site could kick you off for any reason. It is true that California code 1670.5 says that "If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract." But how is Twitter's terms of service unconscionable?

During the hearing, Twitter's lawyers seemed reasonably flummoxed that this was even being brought up and asked for more time to go back and research and brief the issue. And they were right to be confused. Because there's never been any other court finding that a basic online terms of service that says the site has the final word in deciding who can use the platform is "unconscionable" -- and that's partly because of CDA 230, that makes it clear the platform has the final say, and state law can't interfere with that. But here, the judge ignored all of that and suddenly decided that the "we can kick you off for any reason at all" clause must be both outside the purview of CDA 230 and possibly unconscionable. From the hearing (Carome is Twitter's lawyer, Patrick Carome, Peters is one of Taylor's lawyers, Noah Peters:):

MR. CAROME: What are the unconscionable provisions that Your Honor possibly sees here? I --

THE COURT: I can tell you what's alleged, and I believe adequately so, something to the -- I could get the first amended complaint to quote it exactly, but something to the effect that Twitter can, at any time, for any reason, or no reason, pull any account. Have I stated that correctly?

MR. PETERS: Yeah; that's right.

MR. CAROME: There is language to that effect, Your Honor; I would submit that that's not... remotely unconscionable for a on-line platform, such as Twitter, which is completely free, given to the world for free, that requires users -- it has a gating --

THE COURT: And --

MR. CAROME: -- requirement, and let's users in under certain conditions, it is absolutely permissible and, indeed, subject to First Amendment rights and editorial decision that a platform that is engaged in the distribution of speech may, for any reason, just like a newspaper editor could, for any reason, choose not to run a letter to the editor that it receives. That's not unconscionable; that's not remotely unconscionable; that's the way systems work. That's the way -- and so I would certainly --

THE COURT: So let me explain to you why I see differently and the rules that I believe I am bound by in making my determination:

First, I am required to liberally construe the complaint. It's right there in the California Code of Civil Procedure. And, if you want, I can cite that for you, as well; Second, I need to draw whatever reasonable inferences I can draw in favor of the pleading that is being challenged. And in doing both of those things, and liberally construing the complaint, and in drawing reasonable inferences in its favor, I envision or I believe that the complaint alleges something along the lines of: Twitter is the largest communication source in the world. And the way to get your word out and the way to be heard in the modern era, particularly with regard to such important matters as being able to petition the elected leaders and others who are involved in government, for redress, is to be able to be on the Twitter platform.

And for Twitter to know that and nonetheless impose language, as it did here, an otherwise prolix document that's not highlighted, and done on an adhesion contract basis, and on a take it or leave it basis, it is procedurally unconscionable in a large measure.

There's more, but that was the crux of it. And, I should note that this is crazy. Part of the reason I didn't even blog about it at the time was that it was such a crazy ruling, completely divorced from basically all precedent on how online platforms manage their services, that it seemed inevitable that it would be overturned.

What's surprising is just how quickly it was overturned. First noted by Eric Goldman in a detailed post over the weekend, the appeals court seemed so perplexed by the judge's ruling that it smacked it down without even hearing from Taylor's lawyers, more or less saying that ruling was so egregiously off-base that it wouldn't matter what Taylor's lawyers had to say.

Of course, the Appeals Court is a bit nicer in how it put it, and basically tries to suggest that maybe the reason the court got it so wrong was because it had not yet read the important Hassell v. Bird ruling that came out in between the Taylor hearing and the official ruling by the judge. The Hassell ruling reinforced how broad CDA 230 was for internet platforms, and how they are given wide latitude in determining how to manage their own platforms, including editorial choices on what to keep up and what to take down. So, here the appeals court basically says to the lower court "you totally screwed this up, but maybe because you hadn't yet read this latest ruling" (leaving out that the Hassell ruling more or less reconfirmed what dozens of other courts have said):

It appears respondent superior court erred in issuing its July 10, 2018 order overruling in part petitioner's demurrer to the first amended complaint of real parties in interest. We recognize, however, that when respondent issued its order, it may not have had the benefit of the analysis of Hassell v. Bird..., which the California Supreme Court had filed on July 2.

It then goes on and presents a nice thorough analysis of why CDA 230 clearly protects Twitter in this regard and the entire case should be dismissed. It goes through the whole history of the case, along with some history of CDA 230, listing out a bunch of cases that make it clear that internet platforms can kick people off. And then explains why the lower court was simply wrong to think that an unfair competition claim isn't pre-empted by CDA 230:

That real parties allege a cause of action under the UCL does not place their claim outside the scope of immunity provided by the CDA. (See Cross, supra, 14 Cal.App.5th at pp. 196, 208; Caraccioli v. Facebook, Inc. (N.D. Cal. 2016) 167 F.Supp.3d 1056, 1064.) Like the plaintiffs in Cross, real parties claim they are seeking to hold petitioner liable for statements or promises made in its TOS and Rules. (See Cross, supra, at pp. 200-201, 206-207.) But evaluating whether a claim treats a provider as a publisher or speaker of user-generated content, 'what matters is not the name of the cause of action'; instead, what matters is whether the cause of action inherently requires the court to treat the defendant as the "publisher or speaker" of content provided by another.' " (Id. at p. 207, quoting Barnes, supra, 570 F.3d at pp. 1101--1102.) Here, the duties real parties allege Twitter violated derive from its status or conduct as publisher because petitioner's decision to suspend real parties' accounts constitutes publishing activity. (Cohen v. Facebook, Inc., supra, 252 F.Supp.3d at p. 157; Fields v. Twitter, Ina, supra, 217 F.Supp.3d at pp. 1123-1124.) As Hassell reiterated, "lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions--such as deciding whether to publish, withdraw, postpone or alter content--are barred.'" (Hassell, supra, 5 Cal.5th at p. 536.)

Therefore, let an alternative writ of mandate issue commanding respondent San Francisco County Superior Court, in Jared Taylor, et v. Twitter, Inc., San Francisco County Superior Court case No. CGC18564460, to set aside and vacate its order of July 10, 2018 order overruling part in part petitioner's demurrer to the first amended complaint of real parties in interest, and to enter a new and different order sustaining petitioner's demurrer in its entirety; or, in the alternative, to appear and show cause before Division One of this court why a peremptory writ of mandate should not be granted.

Basically, toss this case, or come back to the appeals court and explain in great detail how this case somehow goes against the rulings in every other case. Taylor's lawyers indicate that they'll continue fighting back, but I stand by my original prediction in this case that it's a lost cause.

Separately, I will note that the weird ruling back in June/July in this case, set off a bunch of people online who believed it showed -- as some have been ridiculously claiming -- that moderating platforms somehow makes you lose CDA 230 protections. I do wonder how they'll all react to this quick action on appeal... If what's happening on Twitter is anything to go on, they're going to ignore it. After all, over the weekend I saw at least one tweeter still pointing to the June decision to "prove" that kicking people off of Twitter might violate the law.

Animatron Studio gives you the tools you need to create animations and graphics that will engage your audience, even if you have zero design or coding technical know-how. You can make mobile-friendly, entertaining animations in an intuitive, collaborative environment right in your browser. With Animatron, you've got the power to reach, engage with, educate, and connect to millions in new and unique ways. It's on sale for $50.

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.