The Church of Jesus Christ of Latter-day Saints has something of a rollercoaster history when it comes to the enforcement of its real, or perceived, intellectual property rights. On the one hand, the church has occasionally been quite lenient when it comes to not trying to battle every use of its name, traditions, or religious texts. The Book of Mormon (the play) does exist, after all, and it’s not like the church put up some big fight over it. On the other hand, the church has also previously tried to use IP laws to hide all kinds of information from the public and even gone after individuals for trying to get trademarks on terms the church feels would denigrate its stature.
Overall, however, the church appears to lean towards being a bullying bad actor when it comes to IP law generally and trademark law specifically. The latest iteration of this routine sees the LDS Church bullying a brewery out of a beer brand name merely because it references a term out of the Book of Mormon.
A Salt Lake brewery is discontinuing its Deseret IPA over a trademark-related complaint from the Church of Jesus Christ of Latter-day Saints. Bewilder Brewing Co. announced in a newsletter on Monday that it will “phase out” Deseret IPA and replace it with a new product.
“Unfortunately a large tax exempt Utah-based entity wasn’t pleased with our use of the word Deseret,” the newsletter states. “We have been asked to drop our Trademark and discontinue the brand.”
According to the owner of Bewilder Brewing, Cody McKendrick, the church contacted the brewery and claimed that it had trademark rights that would cause confusion among the public because they were in the classifications for foodstuffs and beverages. Left unspecified were what those trademarked terms were, if they were the same or similar to “Deseret”, and the like.
The reason the name of the brew got the attention of the LDS Church is that “deseret” is a term of affection in the Book of Mormon for honeybees, referenced for their work ethic and dutiful peformance of their tasks. The reason any claims of public confusion over this make zero freaking sense should be obvious: the LDS Church prohibits the consumption of alcohol. The idea that a relatively obscure reference to bees from its holy book is somehow going to confuse any general public, perhaps especially in Utah, that the church was somehow associated with a beer brand is plainly absurd.
Note that all of this came after the brewery abandoned a trademark application for the beer brand last fall after the church and a few other businesses that already use the term filed oppositions. But because trademark bullying works, especially when the bully is much larger than the bullied, the brewery in this case is simply giving up on the brand entirely.
“I don’t have any money to fight with [the church], so we’ll just move on from that beer,” McKendrick said.
And so that is the end of the story. Until, perhaps, the LDS Church sees the light and decides to stop playing the IP bully.
Dating can be difficult, but there are certain things you can do to not make things worse on yourself. Don’t be a creep. Be kind. Take no for an answer. Actually listen to the people you date. I mean, that’s kinda the standard stuff.
Nikko D’Ambrosio was apparently unable to follow at least one (and possibly more!) of those simple rules. Nikko, a 32-year-old Chicago man (old enough to know better), apparently dated around a bit, then lost his shit when he discovered that some of the women he dated went to the Facebook group “Are We Dating the Same Guy” to offer what were mostly pretty mild complaints about him.
“Very clingy very fast,” the woman commented. “Flaunted money very awkwardly and kept talking about how I don’t want to see his bad side.”
More screenshots showed the woman — who commented as an anonymous member — claimed that after she blocked D’Ambrosio’s number, he used a different number to send her a text in which it appears he attacked her appearance.
Nikko didn’t too much like this. And the guy once described as “very clingy very fast” who allegedly told someone you “don’t want to see his bad side” showed off his bad side in filing this very obvious SLAPP suit against basically anyone he could think of. There are 56 total defendants, including 29 women (some of whom are just relatives of the people he’s actually mad at). There are also 22 variations on Meta/Facebook. While the company has multiple corporate entities, you do not need to sue them all. For good measure, he also sued Patreon and GoFundMe, because why not?
It’s not at all clear why he sued all of those defendants. Most of the individual defendants are not clearly connected to this case. The case only names one woman who he says made defamatory comments about him (they’re not, but we’ll get to that). The rest are just… thrown in there and never explained. Did they like or share the original comments? Who knows. It does appear he sued family members of the main woman he’s mad at, again, for what?
There are so, so, so many problems with the lawsuit I’ve literally restarted this paragraph about six times as I change my mind on which to cover first. But let’s start here: Section 230. As far as I can tell, D’Ambrosio’s lawyers have never heard of it. The complaint doesn’t address it. But it easily bars the lawsuit against all of the many Facebook defendants, as well as Patreon and GoFundMe. He also sues AWDTSG Inc., which is apparently a company that helps to run a series of local “Are We Dating the Same Guy” groups on Facebook, which is what Nikko is particularly pissed at.
Section 230 says that for things like defamation, you get to sue the party who said the actual defamatory thing, not the website that hosts the speech. Should the case even get that far (and it’s not clear that it will), all the Facebook/Meta parties, GoFundme, Patreon, and AWDTSG will easily get their cases tossed on 230 grounds. Having a lawyer file a lawsuit like this without understanding (or even attempting to address) Section 230 seems like malpractice.
Indeed, the lawyers who filed this lawsuit, Marc Trent and Dan Nikolic, kind of parade their ignorance. In the lawsuit they claim that because of “Defendants content moderation responsibilities” they would have had to “review” the posts, and that makes them liable for the alleged defamation. But, um, Section 230 was passed directly to deal with exactly that scenario, and to say that, no, reviewing posts doesn’t make you liable.
And Section 230 protects not just “interactive computer services” but “users” who pass along third party content. So even if he’s suing people for sharing or liking the comments he’s mad about, all of those defendants are protected by Section 230 as well.
It’s stunning that the lawyers in question seem wholly unaware of this.
Next up, defamation. Nothing in the suit appears even remotely close to defamation. The statements all appear to be statements of opinion about what kind of creepy jerk Nikko is. Sorry, Nikko, people are allowed to have opinions of you. That’s not defamation. Nearly all of the statements are clearly opinion statements. And, no, it may not feel great, but opinions that you’re “very clingy, very fast” are not defamatory.
Also, in a defamation suit, you plead which statements were defamatory, including why they are false and defamatory. This complaint does not do that.
Next, they’re trying to use Illinois’ brand new (just went into effect this year!) “doxxing” law, claiming that talking about him and posting his picture violates the law. Now, I think there are some potential 1st Amendment issues with that law, and they’re really driven home by using it here. But to try to make sure that this law is on the correct side of the 1st Amendment, it says that the law is not violated when the speech in question is “activity protected under the United States Constitution,” and boy, lemme tell ya, calling a dude “very clingy” sure qualifies.
There are a bunch of other pretty big legal problems with the lawsuit that are just embarrassing. Ken “Popehat” White covered many of them in his post on this subject. The big one, suggesting that the lawyers have little (if any) familiarity with federal court, is that to file in federal court over state law claims, you have to show “diversity,” meaning that the parties in the case are all in different states. And White notes how badly they fucked that up:
D’Ambrosio’s lawyers assert diversity jurisdiction but make an utter dumpster fire out of it. They admit that both D’Ambrosio and at least one of the defendants come from Illinois, which defeats diversity jurisdiction. They admit they don’t know what state a bunch of the defendants come from. They identify a bunch of the defendants as limited liability companies, but don’t plead the facts necessary to identify those entities’ citizenship for purposes of diversity. This is the kind of thing that makes federal judges issue orders of their own accord saying, in judicial terms, “what the fuck is this shit?”
Also, the lawyers claim it’s a “class action” lawsuit, and are actively seeking to recruit more plaintiffs on Reddit, naturally (where — hilariously — the person who originally posted the topic asked the lawyers if they wanted him to start a GoFundMe, apparently not realizing GoFundMe was one of the defendants in the case). Class action defamation lawsuits aren’t really a thing, because for it to be defamation it has to be a statement about a specific person, and the specifics matter. But even beyond that, if you’re filing a class action lawsuit, you have to take some steps, and as White points out, these lawyers didn’t do that:
The caption of the lawsuit proclaims that it’s a class action, and D’Ambrosio’s lawyers have made comments suggesting that they see themselves as suing on behalf of “victims” other than D’Ambrosio. But other than the caption, the lawsuit contains not a single relevant allegation about being a class action. It doesn’t plead any of the factors necessary to qualify as a class action. It’s also obviously unsuited to be a class action: a class action requires a pool of plaintiffs with factually and legally similar claims, but defamation claims are by their nature very individual and context-specific, and each aggrieved man’s case would be very different depending on what was said about them.
White notes that the lawsuit is so badly drafted that he expects it may get dismissed just on the jurisdictional problems without defendants even having to file anything. He also suggests it’s so bad that it could lead to sanctions from the judge.
But, also, this is exactly the kind of case for which I coined the term Streisand Effect nearly twenty years ago. Doing this kind of shit won’t protect your reputation, it will destroy your reputation. And, again as White points out, a good lawyer would warn you of that before filing this sort of lawsuit. Whether or not they warned him about it, the lawsuit has been filed and now the allegedly “very clingy, very fast” guy who might be “very awkward” is, well, having his reputation spread pretty far and wide.
And there are many, many more. So rather than just the types of people who hang out on the “Are We Dating the Same Guy” Facebook groups, now many, many, many more people — some of whom I’d assume are in the dating pool in the Chicago area — are aware of Nikko D’Ambrosio and his reputation. And not just his reputation for being very clingy, very fast, but his reputation for filing bullshit SLAPP suits to try to silence women for expressing their opinion of him.
Hopefully the judge does dump the case. While Illinois does have a decent anti-SLAPP law (which would clearly apply here), the 7th Circuit has suggested it does not apply in federal court (of course, because of the jurisdiction issues, this case doesn’t apply there either, but… whatever).
More importantly, this is a case that demonstrates yet again why Section 230 is so important to protect people against harassment like this very lawsuit. Without Section 230, it becomes way easier to abuse the legal system to try to silence women who point out that you’re a creep. Section 230 protects that kind of information sharing.
The whole case is a mess of epic proportions. It’s a lawsuit that never should have been filed, but now that it has, congrats to Nikko D’Ambrosio for making sure every dating-eligible woman in Chicago knows to avoid you.
Everyone’s aware (or should be) that all calls made from jail are monitored. Not all calls are recorded. There are exceptions, with the biggest being the one for calls made to attorneys representing jailed people.
Those are completely off-limits. These are privileged communications that cannot be monitored or recorded by the government. And yet, it seems to happen disturbingly frequently.
Part of the problem is that, in most cases, the monitoring of calls is automated and handled by third parties. The third parties make good money on every outgoing call. And if jail officials aren’t staying on top of things, everything gets collected. Once it’s collected, there’s really no reason to not take a listen to attorney-client calls (I mean, other than the rights violation). All you have to do then is just not get caught doing it.
For Securus and its incarceration customers, “getting caught” happened. A massive trove of hacked data included 14,000 recordings of calls between prisoners and their legal reps. Securus settled the inevitable class-action lawsuit five years later, covering $840,000 in legal fees and shelling out up to $20,000 to each affected inmate. It could easily afford to buy its way out of this since it has been known to charge upwards of $14a minute for calls using its service.
The latest lawsuit to allege illegal recording of privileged communications has the potential to be another class-action lawsuit. It has been brought by a man currently serving time in a New Jersey correctional facility, who claims his attorney calls were not only recorded, but their content used against him by state prosecutors. (NJ.com was the first to report on this lawsuit, but while it can apparently erect a paywall, it apparently doesn’t have the capability to embed a copy of the lawsuit, much less link to it. So, Gothamist gets the leading link and the blockquotes.)
A man who was incarcerated in Hudson County, New Jersey, alleges jail officials and prosecutors there illegally listened to private conversations he had with his attorney while awaiting trial.
Yursil Kidwai says in a federal class-action lawsuit that jail officials secretly monitored phone conversations between him and his lawyer, which are privileged under New Jersey law, and then prosecutors used information shared in those calls to help build a sexual assault case against him.
The tech for recording calls en masse has existed for years. Plenty of players in the jail tech market have capitalized on this to extract exorbitant per-minute fees from a truly captive market. Correctional facilities not only benefit from the off-loading of this task to third parties, but they often directly benefit from the per-minute extortion racket by receiving a cut of every dollar generated by companies like Securus.
No third-party provider is being sued here. Just several facility officials and government prosecutors. As was stated above, listening in on privileged calls is super-easy. All that’s needed to get away with this is to not do anything stupid.
But everyone involved in this violation of rights screwed up, at least according to Yursil Kidwai’s lawsuit [PDF].
[Kidwai] learned of Defendants’ unconstitutional conduct only when Defendant HCPO [Hudson County Prosecutor’s Office] inadvertently produced in discovery copies of [HCPO Detective Ashley Rubel’s] memorandum to [Assistant Chief Hudson County Prosecutor Jane Weiner] and [HCPO Detective Sergeant Leslie Murphy] digesting the substance of Plaintiff’s attorney-client telephone calls.
At best, this could be charitably described as “sloppy.” This opens up the jail and the prosecutor’s office to all sorts of speculation, if not actionable claims. The inmate also claims other inmates have experienced the same sort of forbidden snooping, although the other person named was not so fortunate as to have been the beneficiary of an unforced error.
Since this is a proposed class-action suit, Kidwai is not seeking suppression of this evidence or a reversal of his conviction. (Reports suggest the case against Kidwai was so strong prosecutors definitely didn’t need to use anything obtained illegally, which makes you wonder why they chose to do so.) Instead, he’s seeking a court order blocking the HCPO and correctional facility from doing something they’re already not allowed to do. He’s also seeking unspecified monetary damages, but if it’s true this conviction wasn’t predicated on illegal monitoring of calls, it seems unlikely he’ll be able to demonstrate any monetary loss from these illegal actions.
Without a doubt, this sort of thing is common. What’s uncommon is the government getting caught doing it. Discovery — should the case get to that point — might prove to be very interesting.
It’s pretty amazing to me just how wrong one Senator can be about the internet for years and years and years. But we’ve been writing about Senator Richard Blumenthal and never, ever letting his own confusion about the internet get in the way of him boldly making foolish claims about the internet since before he was even Senator Blumenthal. Back in 2008, when he was simply clueless Connecticut Attorney General Richard Blumenthal, we had to try to explain to him the internet and Section 230, and sometimes I feel like his ongoing vendetta against the internet stems from looking so foolish all the way back then.
I mean, the defining moment of Blumenthal’s demands to regulate the internet remains his “will you commit to ending Finsta” demand, which only cemented just how clueless many of our elected officials are about the internet.
No one should trust Senator Blumenthal around literally anything having to do with regulating the internet. He is a danger to the public.
And, of course, he’s still pushing his follow up to FOSTA, called KOSA (the Kids Online Safety Act). As with FOSTA, those who don’t understand the internet are doomed to get people killed. KOSA has all sorts of problems, in that its “duty of care” provisions will force websites to remove information that politically motivated enforcers will claim is “harmful.” Republicans have actually been quite upfront about this, publicly saying they support Blumenthal’s KOSA because they want to use it to drive LGBTQ content offline. Senator Marsha Blackburn, Blumenthal’s partner in crime on KOSA, has directly said that KOSA is needed to “protect minor children from the transgender in our culture.”
Yet Blumenthal still refuses to back down. While he agreed to some changes in the law to try to limit its scope to six designated areas of content, it’s not difficult to figure out how culture war enforcers could twist those areas to silence speech such as LGBTQ speech as “harmful” to children. We’re already seeing how Republican legislatures are doing exactly that.
The latest is that, in a paywalled article in Politico (thanks to a few of you who sent it over), Blumenthal (who denied there were any problems with the bill last year) says he’s open to changing the enforcement mechanism in the bill, potentially removing the provision that allows any state AG to enforce the law which would open it up to culture warrior AGs) and limiting it to just the FTC or possibly some other federal agency.
In the piece, Blumenthal admits that “as a former AG” himself, he would prefer to keep the AG enforcement mechanism in the bill, but he’s open to some other enforcement authority if it will get the bill over the finish line.
But, of course, this implies that the FTC is somehow not prone to abuse by whoever is in charge at the time, and wouldn’t use this new power as a political weapon. I mean, we already have Republicans constantly whining about Lina Khan’s somewhat rogue leadership and case selection at today’s FTC.
And, then, if Trump were re-elected, does anyone actually think he wouldn’t install some culture war MAGA crony to run the FTC and use it to hammer “big tech” with lawsuits? I mean, of course, he’d use KOSA — pushed by Democrats like Blumenthal — to force companies to remove pro-LGBTQ content as “harmful to kids.” How is that even in question?
Remember, this is the same Trump who tried to get the FCC to do his bidding in removing social media company’s right to moderate. That only failed when the clock ran out on his administration.
So, no, handing authority over to the FTC (or any federal agency) won’t fix the problems of KOSA. The problems of KOSA are inherent to the bill. They’re inherent to Blumenthal’s near complete ignorance of how the internet actually works, and what happens when you create these types of laws.
There are ways the government could help make the internet safer for kids. But it involves the boring, less flashy (but actually effective) things that Blumenthal will never look to do, because they don’t get him headlines or big attention-grabbing hearings.
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There are lots of things you can call veteran Cincinnati police officer Ryan Olthaus. Some people called him a racist, after he appeared to flash the “ok” sign (something associated with [but not limited to] white supremacists) at anti-police violence protesters.
You can also call him a coward. After all, he couldn’t be bothered to use his own name when suing Facebook users for calling him a racist. Instead, he spent several months trying to keep his own name out of his own litigation. He first secured an extremely unconstitutional temporary restraining order that forbade the defendants from publishing his real name on social media.
Then he managed to talk the court into allowing him to proceed with his lawsuit anonymously, claiming that anonymity was probably the only way to prevent him from being murdered or whatever by internet users. I mean, that’s what his lawyer argued when trying to prevent the restraining order from being lifted.
[Defendants] make this claim even though the potential harm to the officer and his family from the publication of his personal information, occasioned by the protestors’ own baseless and malicious social media posts, far outweighs any burden from the limited restriction on doxing him.
And whatever this is…
Recent FBI data show upticks in police officer killings during years when there have been major incidents of civil unrest across the country.
This word salad managed to convince the lower court, but Officer Ryan Olthaus’s victory was short-lived. In early 2022, the Ohio Supreme Court said Olthaus needed to use his real name if he wanted to move forward with his libel lawsuit.
Roughly two years later, Ryan Olthaus, police officer and alleged racist, has suffered another loss. According to the Ohio Appeals Court, calling Officer Ryan Olthaus a racist is just the First Amendment doing its job. (h/t Volokh Conspiracy and Eugene Volokh in particular, who filed a brief arguing against Olthaus’s anonymity request)
The court [PDF] says that this is what it’s here for: to allow people to seek redress for their grievances. And yes, libel is not protected by the First Amendment. But this isn’t libel, it’s the other thing: protected opinion.
Faced with public accusations that he is a “white supremacist” who flashed a “white power” hand sign at a demonstration, plaintiff-appellant Ryan Olthaus, a Cincinnati police officer, sought redress through defamation law and several related causes of action. But, as justifiably aggrieved by defendants’ assertions as he may feel, defamation law does not allow for recovery when the statements in question constitute opinions (rather than false statements of fact), nor without a showing of actual malice by a public official.
What’s that thing people like Officer Olthaus (assuming he is the sort of bigot he appears to be) are often heard saying? Oh, yeah. “Facts don’t care about your feelings.” It may suck to be called a racist by Facebook users. It certainly sucks if you aren’t actually a racist. But if you give people the impression you might be a bit of a bigot (even unintentionally), they’re going to form opinions. And the First Amendment (along with Ohio’s own constitution) protects statements of opinion.
This appeal was handled poorly by Olthaus and his legal rep. Given the facts of the case, it would have been impossible to do it well, especially after having wasted time and money on unconstitutional restraining orders and trying to keep his name out of the papers (court and otherwise).
Rather than address the grounds stated in the lower court’s dismissal of his lawsuit, Olthaus decided to make the absurd claim that opinions stated during the heat of nationwide protests against police violence were somehow more harmful than normal opinions and, accordingly, less protected by the First Amendment.
Faced with the trial court’s dismissal of his defamation and related claims on the basis that Defendants’ statements were either true or matters of opinion, Officer Olthaus fails to directly address the trial court’s reasoning on appeal. Instead, he emphasizes the notice-pleading standard and the harm that Defendants’ statements occasioned, responding to the trial court’s reasoning only to assert that “[i]n the political atmosphere that existed at the time of the incident, Appellees’ statements rose above mere opinion when they were designed to personally attack and cause harm.” But this statement does not reflect the standard for recovery under Ohio defamation law. Tellingly, Officer Olthaus cites no case law to support this argument, does not suggest the trial court used the wrong legal standard in its decision, and does not assert that it misapplied any relevant case law. Rather, he broadly asserts that the trial court got it wrong and assures us that he could prove his point later in the litigation.
Yeah, that’s the substance of the arguments: if you guys would just let me litigate endlessly, I’m sure I could show that I’ve been defamed. My basis for these assertions are [CITATION NOT FOUND].
Likewise, he advances no substantive argument responding to the trial court’s conclusion that he failed to plead actual malice and that “[a]ctual malice cannot be established in this case.” He merely asserts that, “given the opportunity,” he could demonstrate the falsity of the assertions and Defendants’ reckless disregard for them. Again, he fails to advance any argument for how he would prove such a point, which ultimately rests on the trial court’s conclusions that statements of opinion cannot be made with actual malice and are not actionable in defamation.
This means Officer Ryan Olthaus must now have his arguments made by the state appeals court. The court goes the extra mile, perhaps if only to clearly demonstrate to the willfully obtuse cop how badly he’s lost this lawsuit.
In shutting Olthaus down, the appeals court makes it clear this lawsuit is not only bogus, but has been badly handled since day one, with the officer and his legal rep failing to do the very basic things they’re supposed to do when arguing in court. Common things, like citing relevant case law. Or, you know, using “actual malice” correctly.
Though the above conclusion suffices to affirm the trial court’s dismissal of the defamation claims, we further agree with the trial court that Officer Olthaus failed to sufficiently plead actual malice. In his complaint, he refers only to Defendants’ “malicious” conduct and “false” statements, avoiding both the phrase “actual malice” and the critical test from New York Times Co. v. Sullivan for public official defamation plaintiff…
[…]
Apart from failing to recite the required language, Officer Olthaus also fails to allege any facts showing that Defendants acted with actual malice. The closest he comes is in accusing Ms. White and Ms. Gilley of “falsely” accusing him of using a “white power” hand signal in their citizens’ complaints. Even generously construing his assertions as invoking the standard of “actual malice” and taking them as true, we agree with the trial court that this “fact” cannot suffice as pleading “actual malice” because the assertions are either true or statements of opinion. Officer Olthaus admits to making the gesture, so that fact is true, but he vigorously contests its meaning. But, as we indicated above, Defendants’ various assertions that Officer Olthaus is a “white supremacist” and that his gesture carried a racist meaning are fundamentally statements of opinion.
Yeah, this was never libel. And Olthaus should have known this. It’s clear he thought firing off a lawsuit would silence his online critics. When that didn’t work, he and his lawyer ran out of ideas and basically began winging it. At least Officer Ryan Olthaus, alleged racist, recognized the Streisand Effect would come for him following the filing of this lawsuit and made some moves to stave off that inevitability. Sure, these efforts failed almost immediately, but at least he tried.
Sometimes, bad things happen to good people when discussions go sideways on social media services. And, sometimes, stuff happens to Officer Ryan Olthaus. But no matter who’s filing the lawsuit, the law is still the law.
We recognize and appreciate Officer Olthaus’ point that the allegations of white supremacy were incredibly damaging to him, personally and professionally. Social media has the capacity to ruin lives with the click of a button, but courts do not exist to referee debates on those platforms, nor could we do so consistent with the First Amendment and the Ohio Constitution.
Olthaus loses again. He’s out whatever money he’s spent on this and none of this has done anything to rehabilitate his reputation. Instead, all it’s done is hammer the point home that this officer in particular can’t handle being criticized by people with far less power than he has.
We’ve long noted how the U.S. has generally proven too corrupt to pass even a baseline privacy law or regulate data brokers. The result has been a long line of companies that over-collect all manner of sensitive consumer location and behavior data, fail to secure it, and sell access to it to pretty much any dipshit with a few nickels to rub together. The result: an endless parade of massive privacy scandals.
The only exception has been the FTC, which has been increasingly ramping up pressure on data brokers that play fast and loose with consumer privacy. That continued this week, with the agency announcing that it has banned a data broker named X-Mode Social (recently renamed Outlogic) from sharing or selling users’ sensitive location data, and forced it to delete all collected data.
The FTC’s investigation found the the firm routinely collected and monetized all manner of sensitive geolocation data on consumers gleaned from mobile phones, apps, and other technologies. That data revealed movement behavior down to the meter as consumers visited sensitive locations such as medical and reproductive health clinics, places of religious worship and domestic abuse shelters.
Outlogic then failed to adequately secure this data or engage in much (if any) real controls as to which third parties had access to it:
“Geolocation data can reveal not just where a person lives and whom they spend time with but also, for example, which medical treatments they seek and where they worship. The FTC’s action against X-Mode makes clear that businesses do not have free license to market and sell Americans’ sensitive location data,” said FTC Chair Lina M. Khan. “By securing a first-ever ban on the use and sale of sensitive location data, the FTC is continuing its critical work to protect Americans from intrusive data brokers and unchecked corporate surveillance.”
As with most companies, Outlogic tried to pretend it had secured this data by claiming it had been “anonymized.” But as numerous studies have shown, that term is absolutely meaningless, given it only takes a tiny smattering of additional datasets to identify these supposedly anonymous individuals. In several of these cases, the FTC found companies didn’t even bother with anonymization.
Lina Khan gets criticized a lot for missteps coming from being a young regulator learning on the job. But she deserves ample credit for being one of the few people in DC taking the problem of unregulated data brokers seriously. Our corrupt refusal to regulate these dodgy companies will, sooner or later, result in some form of massive, unprecedented privacy scandal that will make past scandals look adorable by comparison.
Granted the FTC has limited staff and funding, and has generally had its authority over corporations steadily whittled down by decades of relentless corporate lobbying (something that’s likely to get worse with a number of looming Supreme Court decisions).
Keep in mind: this is just one regulator action against one company in an international data broker market filled with companies all doing the same thing. There are more than 4,000 estimated data brokers worldwide, and most of them are clever enough to at least create the fleeting illusion they care about privacy, letting them tap dance over, under, and around our swiss cheese privacy protections.
In other words, only the dumbest, clumsiest data brokers ever face any real penalty. You simply have to be marginally clever to avoid accountability for dodgy behavior.
Ideally you’d have Congress pass a more meaningful privacy law that specifically singles out data brokers and bad behavior. There are two reasons that doesn’t happen: one, a corrupt Congress has been lobbied into apathy by a long line of industries with bottomless pockets who don’t want to lose money. And two, the U.S. government has been exploiting this dysfunction to avoid having to get traditional warrants.
That makes meaningful reform hard to come by. Instead, what we’ve largely gotten is a bunch of performative simulacrum. Most commonly in the form of politicians posturing about the dangers of TikTok, eager to ignore that a long line of dodgy data brokers engage in the same or worse behavior (even selling U.S. consumer data to foreign intelligence agencies) at unfathomable scale.
