Pennsylvania Attorney General Sends Broad, Unconstitutional Gag Order To Gab's New DNS Provider

from the security-through-intimidation dept

Because nothing motivates stupid legislative activity better than a tragedy, various officials are moving forward with dubious activities in the wake of the Pittsburgh synagogue shooting. In the state of New York, a couple of politicians have just announced a Constitutional violation two-fer, offering to separate residents from their Second Amendment rights by using their First Amendment rights against them.

Eric Adams, the president of Brooklyn Borough, and state Senator Kevin Palmer are currently writing the proposed legislation, which would give law enforcement authorities the power to check up to three years of an individual’s social media accounts and internet search history before they are allowed to buy a gun, WCBS Newsradio 880 reported. One of the main aims is to identify any hate speech shared by the users, as the politicians noted that such offensive comments are generally only discovered after mass shootings occur.

This proposal was offered up with complete sincerity despite:

a.) Hate speech being protected under the First Amendment, and

b.) the bill not targeting Gab -- the site where the shooter's anti-Semitic speech/threats were posted.

Josh Shapiro, Pennsylvania's attorney general, has decided to do some "doing something" himself. In a statement to Haaretz one day after the shooting, the state AG promised to get to the bottom… of something.

“My office is reviewing this platform, which was used by the killer to spread his hateful messages,” Shapiro told Haaretz in an interview. “We have strong first amendment protections in this country, and that’s very important for me, but when that speech includes incitement to violence, that crosses a line. We cannot tolerate that.”

"Reviewing the platform…" Those are imprecise words promising imprecise actions. And the imprecise actions have arrived. Gab was the first to report on Shapiro's "review" of its platform. Via Twitter, Gab announced the receipt of a broad, vague subpoena from Shapiro's office. The tweets have since been deleted, but not before being archived. Here's a screenshot of the first two tweets Gab sent to AG Shapiro. (via Timothy Lee at Ars Technica)

The subpoena wasn't sent to Gab, but rather Epik, the domain provider Gab picked up after being dropped by GoDaddy in the days after the shooting. The whole subpoena -- rescued from deleted tweets -- can be found at Unicorn Riot. The subpoena demands Epik turn over pretty much any document the domain provider might have on Gab, including names and addresses of "any and all persons or entities employed by, representing, or otherwise acting on behalf of Gab."

Shapiro's fishing expedition -- which decided to bypass Gab (most likely in hopes of finding its DNS provider more cooperative) -- comes complete with a very half-assed gag order request.

Any disclosure to any person or entity, other than the person or entity identified as the Respondent, that a subpoena has been issued in this matter may jeopardize an ongoing civil investigation. Therefore, you are hereby requested to refrain from notifying any person or entity, other than said Respondent, that the subpoena has been issued.

The tweets from Gab to AG Shapiro, which included screenshots of the subpoena, likely made it clear Epik didn't think much of the AG's "shut up, please" request. Now, the overbroad demand is all over the internet, showing AG Shapiro would rather score political points post-tragedy than respect enshrined rights or statutory immunity.

First, Epik should be shielded from any civil enforcement actions against Gab under Section 230. It doesn't appear the AG is seeking to take action against Epik, but nothing about these early developments that rules this course of action out. Second, the nominal target of Shapiro's investigation contains a whole lot of unpleasant, but Constitutional speech. Third, it's unclear what Shapiro is trying to accomplish. It appears Shapiro just wants to gather a bunch of information and then decide what sort of investigation he'd like to pursue. That's not how investigations (and their attendant paperwork) are supposed to work.

It seems more like a Sheriff Dart-esque campaign of intimidation than a legitimate use of the AG's office, as Eric Goldman points out in the Ars Technica article. I guess we'll know more if Gab is forced to change registrars again. If Shapiro's office arrives shortly thereafter with subpoena in hand, the "investigation" is nothing more than a quick and dirty way to push providers away from doing business with Gab.


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  • icon
    DannyB (profile), 13 Nov 2018 @ 11:05am

    Go after the Users not the Site

    Of course, we all know this on TD.

    The DNS, the connectivity, the infrastructure should be neutral.

    If anyone is at fault it is possibly the Site, but more likely an end user.

    Of course, it's easier to just try to cut them off at the basic infrastructure level.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    I, 13 Nov 2018 @ 11:25am

    You SKIPPED GoDaddy dropping Gab for no valid cause.

    That's actually far more damaging to the free speech you claim to want. -- But it's clear by now that you've no objection to corporate control of speech even though turns out same for individuals.

    Here's a bit supporting that GoDaddy has no justification for control of speech because it then violates the basis of Section 230:

    To "offer a forum for a true diversity of political discourse."

    Section 230 of the Communications Decency Act is a sacred privilege for social media companies. This law protects Facebook, Twitter, and other platforms from liability over the material published on their websites. One of the reasons these services are granted this privilege is the Congressional finding, embodied in legislation, that they "offer a forum for a true diversity of political discourse." [47 U.S. Code S: 230 - Protection for private blocking and screening of offensive material] In contrast, newspapers are subject to libel actions over Letters to the Editor, because they are assumed to have exercised editorial judgement in publishing them.

    https://www.zerohedge.com/news/2018-10-12/google-vs-trump-good-censor-collision-course-patrio t-president

    Link to US code: https://www.law.cornell.edu/uscode/text/47/230

    If "platforms" do not provide free fair forums under common law principles, then as Google recently stated in the leaked PDF, they are LIABLE for all speech. -- Oh, and specifically for this, GoDaddy is NOT liable so has violated the principle by exerting de fact total editorial control. Neither of those help The Public, as is purpose of all law in the US. Section 230 is NOT to empower new censors.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      I "Skip" Over-DePoint, 13 Nov 2018 @ 11:26am

      Re: You SKIPPED GoDaddy dropping Gab for no valid cause.

      Hmm, something funny on screen name, trying again...

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Nov 2018 @ 12:48pm

        Re: Re: You SKIPPED GoDaddy dropping Gab for no valid cause.

        You skipped the part where this is a branch of the government forbidding groups of citizens the right to associate. The first amendment is not solely about the press.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 14 Nov 2018 @ 2:08am

          Re: Re: Re: You SKIPPED GoDaddy dropping Gab for no valid cause.

          Actually, freedom of the press was referring to the printing press, and was and is therefore the freedom of people to publish. Making it refer to news organizations is a dangerous distortion, that leads towards approved news sources.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 14 Nov 2018 @ 7:55am

            Re: Re: Re: Re: You SKIPPED GoDaddy dropping Gab for no valid cause.

            Interesting how you have overlooked the entire accumulation of court rulings establishing precedence, you are not a lawyer are you?

            reply to this | link to this | view in chronology ]

            • icon
              Bergman (profile), 14 Nov 2018 @ 12:36pm

              Re: Re: Re: Re: Re: You SKIPPED GoDaddy dropping Gab for no valid cause.

              He's probably one of those people that claim the second amendment only applies to guns in use in the 1780s.

              reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Nov 2018 @ 12:52pm

        Re: Re: You SKIPPED not darkening our doorstep

        I’m sorry didn’t you promise to leave forever?

        reply to this | link to this | view in chronology ]

    • icon
      ShadowNinja (profile), 13 Nov 2018 @ 11:41am

      Re: You SKIPPED GoDaddy dropping Gab for no valid cause.

      Haven't read about this, but was GoDaddy being threatened by a government entity?

      Some businesses have dumped groups before over government pressure, like Wikileaks being dumped by Paypal back when Wikileaks first became famous. There was a bunch of government backlash against them at the time.

      Certain industries are effectively blacklisted from some services (like banking) because of government pressure and laws. Medical Marijuana businesses for example are not allowed to have bank accounts, because marijuana is still illegal under federal law, and it would make the banks guilty of laundering 'drug money' in the Federal government's eyes. While the banks may want to do business with them, they're blacklisted because of government action.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Nov 2018 @ 12:07pm

        Re: Re: You SKIPPED GoDaddy dropping Gab for no valid cause.

        Some businesses have dumped groups before over government pressure, like Wikileaks being dumped by Paypal back when Wikileaks first became famous.

        You might be confusing it with Visa. It's kind of Paypal's thing to dump customers for no good reason (and hold onto their money). But blocking Visa based on government pressure was unusual, and illegal.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Nov 2018 @ 12:11pm

      Re: You SKIPPED GoDaddy dropping Gab for no valid cause.

      Here's a bit supporting that GoDaddy has no justification for control of speech because it then violates the basis of Section 230:

      The "basis" of the law doesn't matter. 230 states clearly that moderation does not cancel the immunity. (But, actually, that's the reason 230 was created. A court had ruled BBS operators could be considered "publishers" if and only if they engaged in moderation, and some BBS operators stopped moderating in response.)

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Nov 2018 @ 12:44pm

      Re: You SKIPPED GoDaddy dropping Gab for no valid cause.

      You're wrong. You don't know what common law is. You're still lying.

      Move on.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Nov 2018 @ 12:57pm

      Re: You SKIPPED GoDaddy becoming a government actor

      Why must you turn the forum into a house of your lies?

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 13 Nov 2018 @ 1:03pm

      If "platforms" do not provide free fair forums under common law principles … they are LIABLE for all speech.

      If a White supremacist forum (e.g., Stormfront) does not provide a “fair” forum for people whose speech goes against the normal discourse you would find on that forum (e.g., a Black Lives Matter supporter), what legal action can then be brought against the forum?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Nov 2018 @ 5:14pm

      Re: You SKIPPED GoDaddy dropping Gab for no valid cause.

      blue boy, a fan of Nazis? I'm shocked, I tell you! Shocked!

      reply to this | link to this | view in chronology ]

  • identicon
    Agammamon, 13 Nov 2018 @ 2:16pm

    This proposal was offered up with complete sincerity despite:

    b.) the bill not targeting Gab -- the site where the shooter's anti-Semitic speech/threats were posted.

    What do you mean by this? If it targeted Gab, wouldn't it be a bill of attainder? And if its aimed at social media in general - wouldn't Gab fall under that umbrella?

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 14 Nov 2018 @ 3:13am

    It is a pity that people are always cheering for these sorts of actions after a bad thing.
    Completely blind to the reality of they are rooting for their own turn on the petard.

    Stop thinking that there has to be a law or enforcement for every single bad thing that happens. Assign the blame to the person who committed the act, stop trying to expand responsibility.

    Driver gets drunk, driver kills someone with their car...
    The lawsuits that follow will include:
    The Bar for failing to hook BA monitors to every patron.
    The Car Maker for failing to use a patent they have on an impossible tech idea that might have stopped it.
    The Cellphone Maker for failing to detect how drunk the driver was and automagically call 911 to stop them.
    Anyone else with deep pockets who must pay the survivors for their failure to exercise complete control over a human.

    I think Gab is a bunch of asshats, but this bullshit scares the hell out of me. Of course I can see the scenario where an AG goes on a witchhunt and goes after people I've had contact with to attempt to learn my identity, threatening them to avoid alerting me. Building fear & concern among people to lessen their desire to interact with me. Mind you it's just a scare tactic to make people think the AG is 'doing something!!!' to stop my reign of terror. (rolls his eyes)

    It would be nice if we learned to blame the people responsible for the actions they did & stop trying to expand responsibility out to others to have magically stopped the events they weren't directly involved in.

    People can say hateful things online, Gab isn't the cause of it... and if you are all panties bunches over Gab... I'm guessing you missed the hundreds of white power & nazi websites all over the net...

    We need to stop rewarding politicians who grand stand in this way & punish them for pandering to the crisis of the second at the expense of our rights. We let them keep doing this and become numb to the erosion of our rights caused by use thinking our rights are different than everyone elses rights.

    reply to this | link to this | view in chronology ]

  • icon
    Bamboo Harvester (profile), 14 Nov 2018 @ 5:27am

    Twofer?

    "Constitutional violation two-fer, offering to separate residents from their Second Amendment rights by using their First Amendment rights against them."

    Plagiarizing my comments, eh? :)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Nov 2018 @ 1:35pm

    The shooter also used Facebook and Twitter. Apparently the principle of not holding an entire site responsible for the actions of one or a few users does not apply to everyone. Just the ones where the providers agree with the content politically.

    You know, the bias that Techdirt writers continue to insist doesn't exist in these huge web companies.

    reply to this | link to this | view in chronology ]

  • icon
    Primo Geek (profile), 14 Nov 2018 @ 1:57pm

    Blame the maker not the method

    While I believe that Gab is protected as a platform despite their pathetic attempts at policing, the AG crafted a very smart, enforceable subpoena. It is a "who is your customer" request that has absolutely no implications on CDA 230. Because they are targeting the provider and not Gab it avoids any of those sticky issues.

    It reminds me of the kerfuffle about the John Doe subpoenas in music copyright cases. The problem wasn't the John Doe subpoenas or that they were used to obtain IP addresses or users accounts. It was what the Plaintiffs were doing after getting the information.

    There is a need for these tools but it is up to the courts and society to ensure they aren't being abused. The AG is trying to figure out who really controls Gab. Taking further steps with that information is where it may be abusive.

    Along those lines, most responsible hosts have terms of use that cover notice and a chance for the subject to contest the subpoena.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Nov 2018 @ 4:11pm

    If you don't want to do a google search you don't want the authorities to find, just sign out of your google account. so that when they look at what Google searches are under your account, the other searches won't show it.

    And as far as social media goes, there are ways to keep them from finding out things.

    Just create a "decoy" social media presence and use that if needed. They will never be the wiser

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Nov 2018 @ 4:43pm

    Maybe its a good idea to use search engines outside the United States, so the governnment cannot find out what you are searching for.

    Baidu, in China, is a good option. Becuase Baidu is not in the United States, they cannot be compelled to hand over any of your search history.

    There servers are in China, so they are not subject to United States jurisdicion

    reply to this | link to this | view in chronology ]


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