Bad News In The NDAA: Unconstitutional ‘Judge Safety’ Bill, With Submarine Attack On Section 230, Is Included
from the be-careful-of-any-law-named-after-someone dept
Yesterday we wrote about how all of the terrible anti-internet bills we were worried about being slipped into the “must pass” National Defense Authorization Act (NDAA) bill were, thankfully, left on the cutting room floor. However, within the 4,400 pages, there was still plenty of other nonsense added, including a variation on a bill that we had worried about almost exactly a year ago: the Daniel Anderl Judicial Security and Privacy Act.
As we noted last year, the story behind this bill is horrific, and you can understand the good intentions of the authors. But it’s pretty damn clear that the bill has serious 1st Amendment problems, and we were worried that since the only beneficiaries of the bill were judges and their families, the judges would ignore those constitutional infirmities.
The bill came about after a mentally unwell lawyer, who had practiced in front of US District Judge Esther Salas, showed up at her home dressed as a FedEx delivery person, and proceeded to shoot and kill the Judge’s son, Daniel Aderl, and shoot and injure her husband. The shooter then took his own life as well.
Obviously, that story is horrific. And it’s certainly reasonable to then be concerned about the safety of other judges. Though, when you’re carving out special protections for certain groups of people, it might also raise questions about “why aren’t we just doing a better job protecting everyone?” But, here, the form of “protecting judges” raises serious 1st Amendment issues. Because the bill allows judges to demand that certain information about them or their families be removed from the internet.
You can find the language (updated from the previous bill) starting on page 2540. And, not only do the problems we called out last year remain, the new version is even more problematic. First, it provides special powers to judges, former judges, their families (including spouses, parents, siblings, and children) as well as anyone living with the judge to demand all sorts of information be removed from the internet.
Now, perhaps you could make an argument for how some of this information should remain private. But some of it seems incredibly broad. It includes their “full date of birth.” How is it that needs to be kept private? There are also things like their “personal email address.” Which, yeah, people probably shouldn’t be making public, but what does that have to do with protecting judges from potential crazies trying to kill them?
Also, it blocks the publishing of any “information regarding the employment location” of any “at risk” individual. So, um, we can no longer publish the fact that Supreme Court Justices work in the Supreme Court building?
As Jane Mayer at the New Yorker notes, it’s possible this would allow, say, Ginni Thomas to effectively shield some of her many (questionable) professional entanglements:
This is exactly why we called out some of the 1st Amendment concerns with the bill last year — and the concern that judges will ignore it because they’re the sole beneficiaries of the law.
But, the new version of the law also changed in a sneaky way to more or less slip in an attack on Section 230. First, the law will apply to an “interactive computer service” as defined in Section 230, effectively making it clear that they’re using this to cut a slice off of 230:
It then allows the protected individuals (judges and their families) or someone they designate as an agent to issue takedown demands:
IN GENERAL.—After receiving a written request under paragraph (1)(B), the person, business, or association shall—
(i) remove within 72 hours the covered information identified in the written request from the internet and ensure that the information is not made available on any website or subsidiary website con6 trolled by that person, business, or association and identify any other instances of the identified information that should also be removed; and
(ii) assist the sender to locate the covered information of the at-risk individual or immediate family member posted on any website or subsidiary website controlled by that person, business, or association.
Again, given the story of what happened to Judge Salas, you can understand the thinking here, but it appears little to no thought has been given to how this can be abused. So, just to use the Ginni Thomas example, it appears that Thomas can designate an agent to demand all sorts of potentially newsworthy information about herself be removed from any website, with a 72-hour cut off.
So while it technically does not modify Section 230… it really kinda does. Because Section 230 currently says that websites can’t be held liable for third party content, which this bill clearly covers. As Section 230 biographer Professor Jeff Kosseff notes, while this “does not provide an explicit exception to 230… it does create a rule of construction that at least implies an exception for platforms that do not fulfill requests to remove covered info.”
That means, if this goes through, you can fully expect other similar “exceptions” to be written into other laws as well. And, once again, we’re left with the same sort of moderator’s dilemma questions that come up whenever you chip away at Section 230. This bill, like any law that allows for the removal of content (see: DMCA), will be abused to hide perfectly reasonable, legitimate, and potentially newsworthy information.
Keeping judges safe is obviously important. But we shouldn’t throw out the 1st Amendment (and Section 230) because one deeply unwell individual killed someone. We can invest in better mental health treatment. We can institute background checks for gun purchases. Those are the kinds of things that protect everyone.
Tossing out the 1st Amendment so that judges and their families can hide information about themselves online seems like a real problem.
Companies: 1st amendment, at risk, daniel anderl, esther salas, free speech, ginni thomas, intermediary liability, judges, liability, ndaa, protecting judges, section 230
Comments on “Bad News In The NDAA: Unconstitutional ‘Judge Safety’ Bill, With Submarine Attack On Section 230, Is Included”
You wonder how much information about him that lawyer got from documents and people in the court. Was the Internet even involved?
Re:
It’s worse than that. Suppose that a deranged person, a member of the general public, wanted to harm a judge in retaliation for an adverse decision. They don’t need any information, all they need to do is wait out in the parking lot, and when the judge’s day has ended…. IOW, there’s no physical protection, either in the judge’s personal guise, nor in the case of one or more bodyguards. From that, we can safely deduce that there’s no realistic protection at all.
Now, let’s get back to that demented person, who happens to be a lawyer. Lawyers are supposed to be crafty people, and lay plans – they shouldn’t be acting out like a child, in instant response to some perceived wrong done to them. (By convention, demented means that a person can determine right from wrong, and lay plans to allegedly “correct” a perceived wrong. Derangement is defined as going off the deep end without any warning, and throwing an adult-sized tantrum. Weapons optional.)
So judges are members of the bar, whether they were lawyers prior to taking the bench. And the bar keeps track of all members, including judges – no exceptions. This craptastic law makes no mention of how the bar is to treat such records – hide ’em, or whatever. Ergo, a lawyer who wants to copy-cat Roy Den Hollander needs no internet access at all, he only needs to act as a (momentarily sane) member of the bar, and request any info he wants. From that, we can safely deduce that there’s no realistic protection at all. But I repeat myself.
So all that we’re left with is a chivvy into Section 230, and nothing else of material value. All based on a “think of the judges, won’t somebody please think of the jduges” sentiment. I’d like to believe an honest judge, seeing facts properly presented in court, would toss this out on its ear. But I also have a feeling that such a person won’t be easy to find at the higher court levels, sorry to have to say.
sumgai
Re: Re:
Still likely the bill will be found unconstitutional.
I don’t really get the logic of this bill. This being an (albeit minuscule) attack on Section 230 makes even less sense. If judges’ information is so vital not to be leaked, why remove the incentive to legally moderate that? Without section 230 protections, the website might have to either moderate 100% more excessively or just keep everything up, including that judge’s information, which the latter completely defeats the purpose of this idea. The logic of this bill assumes that websites will always intentionally leak judges’ vital information, when in reality it is usually a user that does that.
I’m not really worried about this bill (at least compared to the likes of KOSA or EARN IT) because the problem is extremely specific, it’s still a stupid and potentially harmful bill that further highlights the digital illiteracy of the government.
Re:
Let judges get their information taken down by notice today, and the camel is in the tent., with a whole herd of camels following to demand the same right. How much Internet would be left if notice and take down becomes the norm.
Can we talk about that for a moment? What member of congress completely reads and fully understands a bill that large before voting on it?
Is there not something that can be done to shut down these ridiculously large bills? Stop this practice, and it just might put an end to the practice that allows the issues Mike is addressing from passing as well.
Re:
Yeah, there’s something that can be done – pass an amendment to the Constitution barring multiple-topic bills. Think you can arrange that for us?
Oh, and while you’re at it, please include language to effect term-limits. That oughtta put paid to the problem. 😉
Re: Re:
That’s honestly a terrific idea
Host all of ginni’s crimes on a site outside of ametuca, problem solvwd, 230 is American law not Russian or China law.
Re:
The Faq am I reading.
Replace “Judge” with “Citizen”. Do we not have random-seeming office attacks, school attacks, workplace attacks against citizens? Why should a citizen be less protected than a judge?
And once you go down the dark path, forever will it dominate your destiny…
Politics
Term limits are a good start, but let’s go a step further and do as the ancient Athenians did, and abolish elections. To fill their “public service” positions, they established a pool of eligible candidates, then held a LOTTERY. No campaigning, no “political action committees”, no pork barrel nonsense.
DEFUND THE POLITICIANS.
Well the good news is that according to Bloomberg, the bizarre attack on section 230 was removed. However the bill still passed, albeit less dangerous now.
Here’s the link: https://news.bloomberglaw.com/us-law-week/tweaked-judge-security-measure-passed-in-house-defense-bill
Bad wording in laws? Say it ain't so
Am I the only one who thinks this could be interpreted as an affirmative duty not just to remove the content from your own website, but to identify anywhere else on the internet it’s published?
I mean, it’s bad enough that it’s just a flat notice-and-takedown procedure with no carveouts, but this seems like they’re trying to set up even more liability.
Thomas Goolnik
So now everyone will claim to be related to judges, perfect.
Not just for judges but for fake deaths and celebrities with peerage connections.
This will help scrub genealogy information as well as professional connections from the internet. Intellus and spokeo and other background check websites will have to remove certain people or can add in false information. Will help the alphabet agencies hide their crisis actors and fake victims such as Daniel Aderl. There wan’t any shooting by a men’s rights attorney. However these hoaxes get bills passed. Daniel most likely was faked death and went into military intelligence. This bill will help hide fine print details that were looked over.