Donald Trump's long time lawyer, Michael Cohen has been in a bit of hot water of late. As you no doubt heard, the FBI raided Cohen's office and home seeking a bunch of information, some of which related to the $130,000 he paid to adult performer Stormy Daniels. Already there have been a few court appearances in which Cohen (and Donald Trump) have sought to suppress some of what's been seized, but that doesn't seem to be going too well. At the same time, Cohen is still fighting Daniels in court, which also doesn't seem to be going too well.

Given all of that, it's not too surprising that Cohen has decided to dismiss his ridiculous lawsuit against Buzzfeed for publishing the Christopher Steele dossier. As we pointed out, that lawsuit was going nowhere, because it sought to hold Buzzfeed liable for content created by someone else (oh, and that leaves out that much of what Cohen claimed was defamatory may actually have been true.

And while many are suggesting Cohen dropped that lawsuit because the other lawsuits are a much bigger priority, there may be another important reason as well. As we noted last month, through a somewhat complex set of circumstances, the lawsuit against Buzzfeed may have resulted in Cohen having to reveal the details he's been avoiding concerning Stormy Daniels. That's because Buzzfeed was claiming that Cohen's interactions with Daniels were relevant to its case, and it was likely to seek that information as part of the case moving forward.

In other words, dropping the Buzzfeed lawsuit (that he was going to lose anyway), Cohen wasn't just ditching a distraction in the face of more important legal issues, he may be hoping to cut off at least one avenue for all the stuff he's been trying to keep secret from becoming public. That doesn't mean it won't become public eventually. After all the DOJ has a bunch of it. But it does suggest that Cohen had more than one reason to drop the Buzzfeed lawsuit.

If you spend any time at all in Techdirt's comments, you should be familiar with That Anonymous Coward. He's a prolific and regular commenter (with strong opinions). He also spends a lot of time on Twitter. Well, at least until a week or so ago when Twitter suspended his account. It's no secret that Twitter has been getting a lot of pressure from people to be more proactive in shutting down and cutting off certain accounts. There are even a bunch of people who claim that Twitter should suspend the President's account -- though we think that would be a really bad idea.

As we've pointed out in the past, people who demand that sites shut down and suspend accounts often don't realize how difficult it is to do this at scale and not fuck up over and over again. Indeed, we have plenty of stories about sites having trouble figuring out what content is really problematic. Indeed, frequently these stories show that the targets of trolls and abusers are the ones who end up suspended.

You can read TAC's open letter to Jack Dorsey, which also includes an account of what happened. In short, over a year ago, TAC responded to something Ken "Popehat" White had tweeted, and referred to himself -- a gay man -- as "a faggot." Obviously, many people consider this word offensive. But it's quite obvious from how it was used here that this was a situation of someone using the word to refer to himself and to reclaim the slur.

Twitter then demanded that he delete the tweet and "verify" his phone number. TAC refused both requests. First, it was silly to delete the tweet because it's clearly not "hateful content" given the context. Second, as someone who's whole point is being "Anonymous" giving up his phone number doesn't make much sense. And, as he notes in his open letter, people have tried to sue him in the past. There's a reason he stays pseudononymous:

Why do I have to supply a cell phone number to get back on the platform? I've been a user for 5 years and have never used a cell phone to access your service. I am a nym, but I am an established nym. I own the identity & amazingly there are several hundred people following my nym. I interact with the famous & infamous, they tweet back to me sometimes. I survived a few lawsuits trying to get my real name from platforms, because I called Copyright Trolls extortionists... they were offended & tried to silence me with fear of lawsuits. I'm still a nym, they've been indicted by the feds. There are other Copyright Trolls who dislike me, so staying a nym is in my best interest.

TAC also points out the general inconsistencies in Twitter's enforcement, noting that other slurs are not policed, and even the slur that caused his account to be shut down (over a year after he used it) did not lead to other accounts facing the same issues.

Incredibly, TAC points out that he appealed the suspension... and Twitter trust and safety rejected the appeal. It was only on the second appeal -- and seven days later -- that Twitter recognized its mistake and restored his account.

Now, some may be quick to blame Twitter for this mess, but it again seems worth pointing out what an impossible situation this is. Platforms like Twitter are under tremendous pressure to moderate out "bad" content. But people have very little understanding of two important things: (1) the scale at which these platforms operate, and (2) how difficult it is to determine what's "bad" -- especially without full context. The only way to handle reports and complaints at scale is to either automate the process, hire a ton of people, or both. And no matter which choice you make, serious mistakes are going to be made. AI is notoriously bad at understanding context. People are under pressure to go through a lot of content very quickly to make quick judgments -- which also doesn't bode well for understanding context.

So, once again, we should be pretty careful what we ask for when we demand that sites be quicker about shutting down and suspending accounts. You might be surprised who actually has their accounts shut down. That's not to say sites should never suspend accounts, but the rush to pressure companies into doing so represents a fundamental misunderstanding of how such demands will be handled. TAC's week-long forced sabbatical is just a small example of those unintended consequences.

One of the main reasons FOSTA/SESTA is now law is because of Facebook's vocal support for the bill. Sheryl Sandberg repeatedly spoke out in favor of the bill, misrepresenting what the bill actually did. In our own post-mortem on what happened with FOSTA/SESTA we noted that a big part of the problem was that many people inside Facebook (incredibly) did not appear to understand how CDA 230 works, and thus misunderstood how FOSTA/SESTA would create all sorts of problems. Last month, we noted that there was some evidence to suggest that Facebook itself was violating the law it supported.

However, a new article from Buzzfeed presents even more evidence of just how much liability Facebook may have put on itself in supporting the law. The article is fairly incredible, talking about how Facebook has allowed a group on its site that helps landlords seek out gay sex in exchange for housing -- and the report is chilling in how far it goes. In some cases, it certainly appears to reach the level of sex trafficking, where those desperate for housing basically become sex slaves to their landlords.

Today, in the first instalment of this series, we uncover some of the damage done to these young men – the sexual violence – by landlords, and reveal how they are being enabled by two major internet companies, one of which is Facebook. The world’s largest social media platform, BuzzFeed News can reveal, is hosting explicit posts from landlords promising housing in return for gay sex.

In multiple interviews with the men exchanging sex for rent and groups trying to deal with the crisis, BuzzFeed News also uncovered a spectrum of experiences that goes far beyond what has so far been documented, with social media, hook-up apps, and chemsex parties facilitating everything.

At best, impoverished young men are seeking refuge in places where they are at risk of sexual exploitation. At worst, teenagers are being kept in domestic prisons where all personal boundaries are breached, where their lives are in danger.

I've seen multiple people point out -- accurately -- that the article's focus on Facebook here is a little silly. The real focus should be on the "landlords" who are seeking out and taking advantage of desperate young men in need of a place to live. But, given that the focus is on Facebook, it certainly appears that Facebook has the knowledge required to be a violation of FOSTA/SESTA:

Despite the explicit nature of the postings on the group’s site, the administrator told BuzzFeed News that Facebook has not intervened. “We have never had an incident from Facebook,” he said. “If they [members] want to post something that will not fly with Facebook I write them, and tell them what needs to be changed.”

This has not stopped explicit notices being posted.

When approached by BuzzFeed News to respond to issues relating to this group, Facebook initially replied promising that a representative would comment. That response, however, did not materialise, despite several attempts by BuzzFeed News, over several days, to invite Facebook to do so. A week after first contacting the social media company, the group remains on its site.

It still seems wrong to blame Facebook for what the horrific landlords are doing here, but, hey, FOSTA/SESTA is now the law, and it's the law thanks in large part to Facebook's strong support for it. So, given all of this, will Facebook now face legal action, either from the victims of this group or from law enforcement?

After taking a hiatus from issuing bogus DMCA takedowns against this site, self-proclaimed poet "Shaun Shane" is back at it. The harassment of anyone who dares to publish a certain poem of Shane's -- the one about tongues made of glass -- is a (possibly) Texas-based cottage industry. The harassment continues to this day, but not much of it is directed at Google. Most of Shane's "work" is done over at Twitter, where tweets are greeted with takedown requests.

Presumably, this had led to an immeasurable increase in books sales for Shane. I mean, an unauthorized tweet = 1 lost sale, if I'm not mistaken. Whatever the case is, Shane is back to abusing the DMCA process for something that neither looks like fun nor for profit. Shane has issued several bogus takedown requests over the past couple of months.

Some are normal takedown requests targeting any place that has reproduced his poem. These are fine, but only by comparison. In other requests, targeting TorrentFreak, Boing Boing, Popehat, and Techdirt, some very interesting theories are being advanced. (But not respected. No one is being delisted for the imaginary crimes against IP that Shane has pitched to Google.)

This notice argues contributory infringement, claiming the posting of the poem in full somehow "encourages criminal infringement." That's as sane as the notices get. From there, all bets are off.

This one, targeting a Techdirt URL, attempts to fashion a defamation claim out of thin air (and all without once using the word "defamation").

The reported Url violates Title 28 U.S. Code § 4101 by making the false statement that I do not know the Director John Waters . I have know and been with friends with him since 1984. I was formal film student of his from 1985-86. I acted in the film "Reckless Eyeballs" directed by him. To prove these facts I will provide you with the phone number and email John Waters so you may verify these facts from him directly.

"Reckless Eyeballs" is mentioned on John Waters' Wikipedia page. But there are no links supporting it and it has "this film featured the poet Shaun Shane as the lead" appended to it for no apparent reason. Oh, wait. There's a very apparent reason. The IP address that added the edit traces back to Pearland, Texas, one of "Shaun Shane's" stomping grounds. So, make of that what you will. (And chances are you will make "Shaun Shane did not appear in a John Waters short" of it.)

Another notice, sent April 15, attempts to fashion a conspiracy theory out of Google juice.

I am the Author Shaun Shane, someone is using Bots to artificially raise the reported Url's ranking in Google search results beyond what Google's search algorithm has naturally assigned it and are engaging in "black Seo".

Apparently Shane realized there's no such thing as "black Seo" as the DMCA notices sent the following day attempt to amend that error.

I am the Author Shaun Shane. Someone is using Bots for the reported Url to artificially raise it's rank in Google search results and beyond what Googles search algorithm would naturally assign it and is engaging in Black Hat Seo.

This is better but still stupid. At least we have "Black Hat Seo" instead of "black Seo" to work with, but there's nothing artificial about these search engine rankings. The sites targeted by these notices are all high-ranking sites: Boing Boing, Popehat, Techdirt and… um… I guess, Twitter. (A Popehat tweet is also targeted.)

Welcome back, Shaun. The world is a little duller without you around. We await your newest conspiracy theory about SEO black magic and defamation that dare not speak its name. Meanwhile, we've been given another "anomaly" to file away with the hundreds of others in the annals of DMCA abuse.

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Just a few weeks ago we wrote about how a group of sex workers, in response to the passing of FOSTA/SESTA, had set up their own social network, called Switter, which was a Mastodon instance. As we noted in our post, doing so was unlikely to solve any of the problems of FOSTA/SESTA, because it's perhaps even more likely that Switter itself would become a target of FOSTA/SESTA (remember, with FOSTA, the targeting goes beyond "sex trafficking" to all prostitution).

And, indeed, it appears I was not the only one to think so. The organization that created Switter, Assembly Four, put up a note saying that Cloudflare had shut down Switter claiming the site was in violation of its terms of service.

Cloudflare has been made aware that your site is in violation of our published Terms of Service. Pursuant to our published policy, Cloudflare will terminate service to your website.

Cloudflare will terminate your service for switter{.}at by disabling our authoritative DNS.

Assembly Four asked Cloudflare to clarify just what term it had violated and the company has now come out and noted that it reluctantly pulled the plug on Switter out of a fear that it would create criminal liability for Cloudflare under FOSTA/SESTA. Cloudflare was among the companies who lobbied against the bill, and they note that they disagree with the way the bill was drafted -- but given the nature of the law, the company feels compelled to take this action:

“[Terminating service to Switter] is related to our attempts to understand FOSTA, which is a very bad law and a very dangerous precedent,” he told me in a phone conversation. “We have been traditionally very open about what we do and our roles as an internet infrastructure company, and the steps we take to both comply with the law and our legal obligations—but also provide security and protection, let the internet flourish and support our goals of building a better internet.”

Remember, this was a site for sex workers to communicate with each other. It was purely a platform for speech. And it's being shut down because of fears from the vague and poorly drafted FOSTA/SESTA bill. In other words, yet more confirmation that just as free speech experts predicted, FOSTA/SESTA would lead to outright suppression of speech.

I've seen some complaints on Twitter that Cloudflare should have stood up for Switter and not done this. I don't think that's reasonable. The penalties under FOSTA/SESTA are not just fines. It's a criminal statute. It's one thing to take a stand when you're facing monetary damages or something of that nature. It's something altogether different when you're asking a company to stand up to criminal charges based on a law that is incredibly vague and broad, and for which there is no caselaw. Yes, it would be nice to have some companies push back and potentially help to invalidate the law as unconstitutional, but you can't demand that of every company.

I am curious, though, how supporters of FOSTA/SESTA react to this. Do they not care that sex workers want to be able to communicate? Do they not care that social networks are being shut down over this? Do they not care about speech being suppressed?

Texas attorney Mark Bennett -- instrumental in getting an unconstitutional "peeping tom" law tossed in 2014 -- has scored another win for the First Amendment by getting an unconstitutional revenge porn law tossed. It's not that anyone (except revenge porn purveyors) wants to see revenge porn go unchecked. It's that there's plenty of laws on the books already to address the problem and those written to target revenge porn tend to do collateral damage to the Constitution.

Mark Bennett began this fight back in 2015, right after the law went into effect. As Scott Greenfield reports, Bennett has secured a win in the 12th District Court of Appeals, reversing the lower court's finding the law was First Amendment-compliant.

As has been argued from the day Mary Anne Franks began her efforts to create a criminal revenge porn statute, it clearly implicated the First Amendment’s prohibition against laws infringing on free expression, to which she merely screamed her denials and did her best to deflect by creating a fantasy interpretation of the First Amendment. The court made swift work of it.

In the instant case, Section 21.16(b) proscribes the disclosure of certain visual material, including any film, photograph, or videotape in various formats. Because the photographs and visual recordings are inherently expressive and the First Amendment applies to the distribution of such expressive media in the same way it applies to their creation, we conclude that the right to freedom of speech is implicated in this case.

As the court notes, the restriction on revenge porn is content-based. Content-based restrictions require greater scrutiny to adhere to the Constitution and Texas' law cannot hold up to this level of scrutiny. From the decision [PDF]:

In the instant case, the State conceded at oral argument that Section 21.16(b) properly is subject to strict scrutiny analysis. We agree. Here, Section 21.16(b)(1) does not penalize all intentional disclosure of visual material depicting another person. See TEX. PENAL CODE ANN. § 21.16(b)(1). Rather, Section 21.16(b)(1) penalizes only a subset of disclosed images, those which depict another person with the person’s intimate parts exposed or engaged in sexual conduct. See id. § 21.16(a)(1), (3), (b)(1). Therefore, we conclude that Section 21.16(b)(1) discriminates on the basis of content.

The state tried to claim revenge porn is always obscene material. As the court points out, the state cannot make this determination on its own. It needs the court's help and, further than that, courts need a jury's help to determine whether or not disputed content is actually obscene.

Then it points out the obvious flaw in this argument -- one the state should have caught before arguing a new, unconstitutional law was needed to regulate obscenity.

Here, Section 21.16 does not include language that would permit a trier of fact to determine that the visual material disclosed is obscene. Moreover, if, as the State argues, any visual material disclosed under Section 21.16(b) is obscene, the statute is wholly redundant in light of Texas’s obscenity statutes.

Having dispensed with the state's attempts to salvage a redundant law, the court gives it this send off -- a light kick to ass of legislators and the state's legal counsel: DO BETTER.

At the very least, Section 21.16(b)(2) could be narrowed by requiring that the disclosing person have knowledge of the circumstances giving rise to the depicted person’s privacy expectation. But because Section 21.16(b) does not use the least restrictive means of achieving what we have assumed to be the compelling government interest of preventing the intolerable invasion of a substantial privacy interest, it is an invalid content-based restriction in violation of the First Amendment.

Once again, it's not that revenge porn should be ignored. It's that it's almost impossible to craft a law targeting revenge porn without doing damage to the First Amendment. As multiple prosecutions have shown, revenge porn purveyors tend to break plenty of existing laws. Prosecutors and regulators have had little problem shutting down sites using laws not specifically created to target revenge porn. The problem is most legislators like to appear to be doing something about societal issues, but often have little interest in ensuring their proposed statutes are Constitutionally-sound before pushing them across governors' desks. As the court points out here, a little care taken during the crafting process would have gone a long way towards keeping this law alive.

Just as places like Russia are getting more aggressive with companies like Google and Amazon in seeking to stop online communications they can't monitor, Google made a move that really fucked over a ton of people who rely on anti-censorship tools. For years, various anti-censorship tools from Tor to GreatFire to Signal have made use of "domain fronting." That's a process by which services could get around censorship by effectively appearing to send traffic via large companies' sites, such as Google's. The link above describes the process as follows:

Domain fronting works at the application layer, using HTTPS, to communicate with a forbidden host while appearing to communicate with some other host, permitted by the censor. The key idea is the use of different domain names at different layers of communication. One domain appears on the “outside” of an HTTPS request—in the DNS request and TLS Server Name Indication—while another domain appears on the “inside”—in the HTTP Host header, invisible to the censor under HTTPS encryption. A censor, unable to distinguish fronted and nonfronted traffic to a domain, must choose between allowing circumvention traffic and blocking the domain entirely, which results in expensive collateral damage. Domain fronting is easy to deploy and use and does not require special cooperation by network intermediaries. We identify a number of hard-to-block web services, such as content delivery networks, that support domain-fronted connections and are useful for censorship circumvention. Domain fronting, in various forms, is now a circumvention workhorse.

In short, because most countries are reluctant to block all of Google, the ability to use Google for domain fronting was incredibly useful in getting around censorship. And now it's gone. Google claims that it never officially supported it, that this was a result of a planned update, and it has no intention of bringing it back:

“Domain fronting has never been a supported feature at Google,” a company representative said, “but until recently it worked because of a quirk of our software stack. We’re constantly evolving our network, and as part of a planned software update, domain fronting no longer works. We don’t have any plans to offer it as a feature.”

As Ars Technica notes, companies like Google may be concerned that it could lead to larger blocks that could harm customers. But, as Access Now points out, there are larger issues at stake, concerning individuals who are put at risk through such censorship:

“As a repository and organizer of the world’s information, Google sees the power of access to knowledge. Likewise, the company understands the many ingenious ways that people evade censors by piggybacking on its networks and services. There’s no ignorance excuse here: Google knows this block will levy immediate, adverse effects on human rights defenders, journalists, and others struggling to reach the open internet,” said Peter Micek, General Counsel at Access Now. “To issue this decision with a shrug of the shoulders, disclaiming responsibility, damages the company’s reputation and further fragments trust online broadly, for the foreseeable future.”

“Google has long claimed to support internet freedom around the world, and in many ways the company has been true to its beliefs. Allowing domain fronting has meant that potentially millions of people have been able to experience a freer internet and enjoy their human rights. We urge Google to remember its commitment to human rights and internet freedom and allow domain fronting to continue,” added Nathan White, Senior Legislative Manager at Access Now.

Google doesn't need to support domain fronting, and there are reasonable business reasons for not doing so. But... there are also strong human rights reasons why the company should reconsider. In the past, Google has taken principled stands on human rights. This is another time that it should seriously consider doing so.

Look, trademark law can be confusing. If you're not spending some significant portion of your life either practicing trademark law or writing about trademark law, you might misunderstand how it works. In particular, the requirement for entities to be in the same business or market often times trips people up, with them either not realizing that this provision exists for there to be trademark infringement in most cases, or else not understanding exactly what it means to be competing in the same marketplace.

But my understanding and generosity in this is heavily strained when a winery sues a construction company just because the winery built stuff on its property.

According to a filing in San Francisco’s U.S. District Court, dated March 2, Sonoma’s Caymus Capital is being sued, along with other related parties, by Caymus Vineyards of Napa.

The suit cites the defendants’ “unauthorized and unlawful use of Plaintiff’s famous, incontestable federal trademark registration for the mark ‘Caymus’ and Plaintiff’s corporate and trade name ‘Caymus Vineyards.’”

By way of background, Caymus Capital is related to Caymus Builders, Caymus Residential Recovery, and other related businesses, all of which are also named in Caymus Vinedyards' lawsuit. To be clear, none of these companies are in the wine business. All of them are in the building and construction business. Readers of this site will already be scratching their heads wondering what argument the winery might be making in order to assert that any of this is trademark infringement.

Well, there are two arguments in the lawsuit, both of which are equally flimsy. First, as part of its wine business, Caymus Vineyards asserts in its filing that it builds stuff.

The suit explains that Caymus Vineyards has engaged in building projects on its own properties, primarily in the Napa Valley, and is currently developing a winery, bottling and distribution complex in Solano, where it does business as Caymus-Suisun.

None of which makes it a builder or construction company in the commercial marketplace. Were this to equate to trademark infringement, construction companies would likely have to go unnamed entirely, because every industry has to build stuff to be an industry.

In the complaint itself, Caymus Vineyards also complains that Caymus Builders, which is located in nearby Sonoma, tried to help with the recovery efforts from last year's devastating wildfires that rocked Wine Country.

Since that time, Defendant Caymus Builders LLC has advertised its services along the Napa-Sonoma corridor, presumably as part of the re-building process. … The highly visible signage advertising Defendant’s goods and services alongside vineyard properties will likely cause confusion, mistake, or deception as to the source, affiliation, sponsorship or authenticity of Defendant’s goods and services.

Say it with me now: none of this makes Caymus Vineyard a builder, nor does it make Caymus Builders a winery. All of this complaining is silly, as are claims that anyone is going to confuse the quite famous Caymus Vineyards winery with a construction company.

Hopefully the court will see clear to putting the cork back in this disaster of a trademark suit.

As Techdirt has pointed out a number of times, attacking the huge free online repository of academic papers, Sci-Hub, is wrong from a number of viewpoints. It's wrong because Sci-Hub is not a site aiming to profit from the labor of others, but is simply trying to make knowledge accessible to everyone. That's also what academic publishers like to claim they are doing, except that strangely many of the largest end up with profit margins of 30%-40%, and the papers aren't accessible to all, just to those rich enough to pay the "egregious price increases" that roll in every year. It's wrong because most of the research published was paid for by the public through their taxes, who surely ought to be able to access it from convenient repositories that are as easy to use as Sci-Hub. It's also provided free of charge for publishers to repackage, often with few changes. And yet the latter want people to pay again, typically $30 for a single article.

It's not just wrong: it's really foolish on the part of the publishers to pursue Sci-Hub in this way. It simply provides another example of the Streisand Effect, with every legal action alerting more people to Sci-Hub's existence, and encouraging them to find out more. It's foolish, too, because it underlines the fundamental inability of publishers to stop people sharing online, which probably leads others to start doing so. Techdirt has already covered previous failures to shut down Sci-Hub. A new post on TorrentFreak provides us with an update on that continuing fiasco, with details of a new injunction obtained by one of Sci-Hub's arch-enemies, the American Chemical Society:

The amended injunction now requires search engines, hosting companies, domain registrars, and other service or software providers, to cease facilitating access to Sci-Hub. This includes, but is not limited to, the following domain names.

'sci-hub.ac, scihub.biz, sci-hub.bz, sci-hub.cc, sci-hub.cf, sci-hub.cn, sci-hub.ga, sci-hub.gq, scihub.hk, sci-hub.is, sci-hub.la, sci-hub.name, sci-hub.nu, sci-hub.nz, sci-hub.onion, scihub22266oqcxt.onion, sci-hub.tw, and sci-hub.ws.'

Obtaining an injunction is one thing; applying it is another. As the TorrentFreak post notes, many of the non-US service companies involved aren't interested in obeying US injunctions. At the time of writing, a list of Sci-Hub mirrors around the world showed several still operating without any difficulty. And even if some service providers go on to shut down Sci-Hub's domains, it would be easy to come up with new names for mirrors, whether close to "Sci-Hub" in form, or quite different. And ultimately people can use Tor to access sites that are even harder to take down. In the meantime, all that these vindictive and pointless legal moves achieve is to ensure that Sci-Hub remains in the public eye, and gains ever-more users and supporters.

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