Louisiana has a bad law that needs to be taken off the books. (Well, it probably has several but this discussion will only deal with one.) Previous court decisions have ruled the law unconstitutional but somehow it lives on to be a vehicle of harassment by law enforcement, often at the encouragement of government officials.

This would be Louisiana's criminal defamation law. This was the law (ab)used by Sheriff Jerry Larpenter of Terrebonne Parish to shut down an online critic by raiding the blogger's home and seizing several electronic devices. The target of the supposed defamation was a board commissioner -- someone who wasn't actually covered by the law, which only provides for charges when the person allegedly defamed is not a public figure.

A federal appeals court recently stripped Sheriff Larpenter of his immunity for abusing this law. It stated the outcome bluntly in the first sentence of its opinion.

Some qualified immunity cases are hard. This case is not one of them.

The court points out both the Supreme Court of the United States and Louisiana's highest court have reached the same conclusion: the law cannot be applied to speech targeting public officials.

Concluding that "[i]t is for the [state] Legislature to correct [§§ 14:47-49's] constitutional infirmity"—namely, "its overbroad application" as identified in Garrison—the Louisiana Supreme Court held §§ 14:47-49 "to be unconstitutional insofar as they attempt to punish public expression and publication concerning public officials, public figures, and private individuals engaged in public affairs." Id. at 668; see also State v. Defley, 395 So.2d 759, 761 (La. 1981) (observing that § 14:47 "is unconstitutional insofar as it punishes public expression about public officials").

Since Snyder, the Louisiana legislature has not revisited §§ 14:47-49. The Louisiana Supreme Court's holding as to the reach of § 14:47 therefore remains the law of the land.

Not that anyone appears to have noticed. Sheriff Larpenter ignored two high court rulings to bring charges under the law in a way that specifically violated these court findings. But Larpenter isn't the only law enforcement official abusing the law. And far from the only government official in general.

The Fifth Circuit Court of Appeals has handled another case springing from the unconstitutional application of the state's criminal defamation law. While the findings aren't nearly as favorable to the appellant, the decision [PDF] does point out the law cannot legally be used the way it has been in this case.

Just like the Larpenter case, this one begins with offended public officials.

Sometime before April 16, 2012, the Livingston Daily Times published an opinion piece titled “Sue Happy Seven Councilmen,” which discussed complaints about the Livingston Parish Council’s misuse of public funds. A URL link to the piece was posted on a separate Facebook page maintained by the Livingston Daily Times. The Facebook post was open to public comment. Using a pseudonym, someone posted “critical comments” about three Council members—James R. Norred, Jr., Cynthia G. Wale, and Chance McGrew Parent (the “Council Defendants”). McLin alleges that the statements “merely constituted criticism of official conduct of public officials.”

Even if the comments were defamatory (something the court doesn't discuss), the correct response would be a civil suit, not criminal charges. But if the state legislature isn't actually going to repeal the shitty law, the following sort of things are going to keep happening.

On April 20, 2012, Parent filed a report with the Livingston Parish Sheriff’s Office (“LPSO”) alleging that the anonymous Facebook user had “posted a comment in regards to numerous elected counsel [sic] members.” In response, LPSO Detective Benjamin Thomas Ballard obtained subpoenas to Facebook and Charter Communications. The subpoena responses linked McLin’s home address to the Facebook account that posted the critical comments. Ballard obtained a search warrant for McLin’s home, and he and LPSO Detective Jack R. Alford, Jr. executed the search warrant on June 11, 2012. Ballard and Alford confiscated electronic devices and equipment, and a forensic analysis purportedly linked one of the confiscated computers to the anonymous Facebook user.

Anyone could have put a stop to this. But no one did, not even officers who -- as another federal court put it when dealing with this stupid statute -- are "presumed to know the law."

Upon receiving this information, Ballard, Alford, and other officers (together with Sheriff Jason Gerald Ard, the “Officer Defendants”), and the Council Defendants (together with the Officer Defendants, the “Defendants”) met on August 16, 2012, to discuss pursuing criminal charges against McLin. Some of the officers urged that criminal defamation charges under Louisiana’s criminal defamation statute—Louisiana Revised Statute § 14:47—were warranted. The Council Defendants asked to pursue the charges against McLin and “swore out criminal complaints” contending that they were each subjected to criminal defamation as a result of comments McLin allegedly posted to Facebook.

Thin skins and stupid laws are great for generating civil rights lawsuits. McLin turned himself in after finding out three arrest warrants had been sworn out. The district attorney dropped all charges four months later. McLin has a good case, one would think. According to the court, the lawsuit should be allowed to continue...

The factual allegations in McLin’s complaint sufficiently plead that the Defendants lacked probable cause to prosecute McLin for violating the Louisiana criminal defamation statute. McLin alleges that the anonymous Facebook comments—posted to a news story about Council members and the Council’s misuse of public funds—did not amount to criminal defamation but rather “merely constituted criticism of official conduct of public officials.” Speech criticizing the official conduct of public officials is protected by the First Amendment and does not constitute criminal defamation.

McLin further alleges that, upon linking the comments to him, and with knowledge that McLin’s comments were protected by the First Amendment, the Defendants met and conspired to create falsified affidavits for the purpose of obtaining arrest warrants on charges of criminal defamation. See Rykers v. Alford, 832 F.2d 895, 898 (5th Cir. 1987) (“[A]n officer charged with enforcing Louisiana law[] can be presumed to know that law.”). On these facts, which must be taken as true, we conclude that McLin’s complaint adequately alleges an unreasonable seizure because the Defendants could not have believed they had probable cause to arrest him.

Unfortunately, all the good news for McLin ends there. The court still grants immunity to the officers on the Fourth Amendment claims basically because McLin turned himself in rather than wait around to be arrested.

Here, we cannot say that every reasonable officer would understand that McLin was seized for purposes of the Fourth Amendment. To date, neither the Supreme Court nor the Fifth Circuit has decided that an officer’s acceptance of a voluntary surrender to an arrest warrant constitutes a Fourth Amendment seizure. And there is no a “robust consensus of persuasive authority”: only one circuit—the Eleventh—has found a seizure in these circumstances in a published opinion, and a majority of circuit courts have not yet weighed in. Although we now hold that McLin was seized, reasonable officers might not have understood that accepting McLin’s surrender to the arrest warrants, without imposing further pre-trial restrictions, constituted a seizure.

This decision contrasts sharply with the opinion released by Louisiana's district court. Both deal with the same law -- one twice ruled unconstitutional -- and yet no one abusing the law will suffer any ill effects. McLin did the cops a favor by showing up at their place with his hands ready for cuffing. And for that, he can't sue law enforcement officers who sought arrest warrants based on a law they should have known couldn't be used to bring charges against McLin.

Louisiana has enough rights violating going on at any given time. There's no reason legislators should allow this law to remain on the books any longer. The only thing it does is encourage people the law doesn't apply to (public figures) to work with compliant law enforcement agencies to shut down criticism.

So we've talked repeatedly about how the real "smart" choice in the era of "smart" internet of things devices is often -- dumber technology. Whether it's your smart refrigerator or TV leaking your gmail details or viewing data over unencrypted connections, your smart car opening the door to potentially fatal attack, or your smart doorbell creating new attack vectors into your WiFi network, more often than not you're quite frankly better off with the older, less sophisticated versions of these technologies if you want the smart path toward a more secure life.

The latest case in point: smart door lock vendor Lockstate managed to completely disable the smart door locks of an estimated 500 customers after a botched firmware update left customers unable to access their own properties:

A subset of smart locks made by Lockstate have been bricked after an update. The smart lock vendor is part of Airbnb’s Host Assist program, and integrates with the accommodation rental platform so, for instance, hosts can automatically generate and email one-time codes for their guests to use during check-in....Two models of Lockstate smart lock are apparently affected, one of which currently retails for $469.

Airbnb offers property owners a $50 discount code if they use Lockstate products as part of the Host Assist program — where said products are heralded as “revolutionary” and capable of withstanding “high usage”. Because the botched update made it impossible for these locks to subsequently connect to the internet for a new fix, the vendor is informing owners that their only recourse is to wait anywhere from a week to eighteen days for a physical replacement, inundating them with neither smart nor revolutionary added costs:

In the mass mailer email, which begins “Dear Lockstate customer” and summarizes its contents as an “update” pertaining to LockState 6i/6000i, affected customers are asked to wait as long as 18 days for a full replacement. Or up to a week if they choose to remove and send the back portion of the lock to the company for repair.

Feel smarter yet? Of course this isn't the first problem of this type. Internet of things brand darling Nest has, at several different points, botched their own firmware updates for supposedly smart thermostats, resulting in users either being cooked or chilled until they were able to remedy the problem. This is the kind of stuff internet of things evangelists still don't spend much time talking about when they're busy hyping and pitching the latest and greatest internet-connected widgets, built by a rotating crop of companies with a fleeting interest in actual security, functionality and privacy.

Granted bungled firmware updates are only one risk. A recent report took a look at sixteen different brands of Bluetooth-enabled smart locks, and found that at least twelve of the brands were notably susceptible to remote attacks. The flaws are fairly standard at this point, ranging from user data and passwords being transmitted in plain text, or a bungled use of encryption to transmit user data when encryption was used at all. Short version of the lesson: if you're trying to build a smart home either do your homework and consult a hacker to find the best quality devices available, or save both time and money and revert to the best available dumb alternative.

I love HBO's Game Of Thrones. I hate everything we have to write about it, however, because the stories are typically dumb in the usual ways that stories are dumb here at Techdirt. From HBO happily playing the evil villain in protecting the show's IP in the most overly-protectionist manner possible, to HBO screaming about the show being heavily pirated while everyone else comments about how good a thing that actually is, all the way up to the occasional overt hacking that occurs, where episodes from the show leak early, everybody freaks out, and then HBO and GoT go on to rake in tons of eyeballs and money anyway. One of these hacks just occurred, as you may know, resulting in a ransom not being paid to the hackers, who were then eventually arrested. While episode four of the current season did indeed get leaked, it wasn't the hackers who leaked it, but someone at an HBO distribution partner. So HBO screams about hacks while someone with in its own house is leaking episodes.

And now it just appears to have happened again. Episode six has now leaked out and fingers are being pointed at the Spanish division of HBO itself for the leak.

Trouble continues for HBO as another episode of the popular Game of Thrones series has just leaked online, days ahead of the official premiere. Copies of the sixth episode of the current season, titled ‘Death is the Enemy,’ are currently circulating on various streaming portals, direct download, and torrent sites.

At the moment it’s not confirmed how the leak came about but some suggest that it was leaked by HBO itself in Spain. Several people have posted screenshots and videos that suggest it was made public by HBO unintentionally.

With no counter-narrative yet from HBO, which you'll recall loves to scream about hacks and piracy, the accidental leak from HBO is the only explanation on offer as of the time of this writing. And, look, mistakes like this happen. The point of this post isn't to point the finger and laugh at HBO for accidentally leaking an episode itself.

No, the point is that these leaks just don't matter. The show continues to rack up the same astounding viewership numbers, leaks and all. It's wildly successful. It has been spun off into board games and all manner of merchandise. It's to the point that nobody batted an eye when HBO refused to pay the hackers' ransom to not release the episodes early. There would be no point. Hell, when the first four episodes of season five of the show were leaked early, that season broke the show's viewership records.

So chill, HBO. Leaks from hackers, leaks from distributors, and leaks from your own offices aren't going to bring the piracy dragons to your doors to destroy your keep.

So here's a bit of nice news. Yesterday EFF announced this year's Pioneer Award winners, and they included Chelsea Manning, Annie Game... and me. I'm humbled to win the award -- but especially to be included with Chelsea and Annie, both of whom have gone to amazing lengths, and often sacrificed tremendous amounts, to do what they believe in to help make the world a better place. I just write about stuff. If you read Techdirt, you probably know about Chelsea Manning already -- we've certainly written about her, what she's done for this country, and the travesty of the charges and punishment she faced. Frankly, it's a joke to put me in a list with Chelsea Manning. We don't belong in the same conversation, let alone getting the same award. As for Annie Game -- you might not know the name, but she's a force to be reckoned with as well. She runs IFEX, which is on the front lines around the globe -- especially in repressive authoritarian-led countries -- fighting to protect a press that has few legal protections and standing up for free expression and access to information in very real and tangible ways (and sometimes in dangerous environments). I aspire to do work that will someday put me on a level with the things both Chelsea and Annie have done -- but in the meantime, I'm happy to share this award with them.

If you have not been, the Pioneer Awards event is always a blast, so if you're in the area on September 14th, please consider coming out to the ceremony. Tickets help support EFF, and I think we all know just how much amazing work EFF has done over the years.

At the time, the documents leaked by NSA contractor Reality Winner -- showing Russian interference in the recent election -- didn't seem to be of much importance. They showed something that had long been suspected, but also showed the NSA performing the sort of surveillance no one really disapproves of. The documents were in the public's interest, but weren't necessarily of the "whistleblower" variety.

That aspect of the documents hasn't changed, but public interest in the unauthorized disclosure certainly has. In a post for Emptywheel, Marcy Wheeler takes on an NPR story about actions taken by electoral agencies as a result of the leak.

The company that provided the software for the poll books is VR Systems — the company that the document Reality Winner leaked showed had been probed by Russian hackers.

[S]usan Greenhalgh, who’s part of an election security group called Verified Voting, worried that authorities underreacted. She was monitoring developments in Durham County when she saw a news report that the problem pollbooks were supplied by a Florida company named VR Systems.

“My stomach just dropped,” says Greenhalgh.

She knew that in September, the FBI had warned Florida election officials that Russians had tried to hack one of their vendor’s computers. VR Systems was rumored to be that company.

Now, there's an investigation underway in North Carolina, linked directly to the documents leaked by Reality Winner. Josh Lawson, general counsel for the state's board of elections, said it first learned about the hacking from the Intercept's article.

Which makes you wonder when the federal government was going to get around to notifying affected state agencies. When local agencies are learning about Russian hacking from leaked documents rather than straight from the source, the downward flow of pertinent information seems to be more than a little broken.

Not that this news will do Winner any good as she heads to court. As noted by Ed Snowden earlier, and reaffirmed here by Marcy Wheeler, any positive outcomes resulting from leaked documents can't be raised by the defendant.

Last week, Magistrate Judge Brian Epps imposed a protection order in her case that prohibits her or her team from raising any information from a document the government deems to be classified, even if that document has been in the public record. That includes the document she leaked.

The protective order is typical for leak cases. Except in this case, it covers information akin to information that appeared in other outlets without eliciting a criminal prosecution. And more importantly, Winner could now point to an important benefit of her leak, if only she could point to the tie between her leak and this investigation in North Carolina.

With the protection order, she can’t.

This is generally how things go in espionage cases. This is what Snowden detractors ignore when they argue he should just return home and face a "fair trial." There are no fair trials in espionage cases. In Winner's case, the order is so broad it forbids her legal reps from discussing any classified document or any document they believe might be classified (or derived from classified documents), even if those documents have been leaked and published by journalistic entities.

The info in the leaked documents led to an investigation. This may excuse the leak in the minds of those whose first encounter with evidence of Russian hacking came from a site known for publishing leaks, rather than the federal government performing the surveillance that uncovered it. But this is of no use to Reality Winner, or any leaker in her position. No matter how much good may result from unauthorized disclosures, the government only cares about the authorization.

Palantir has made government surveillance big business. It's a multi-billion dollar company built mainly on government contracts. Its tech prowess and computing power have made it the go-to company for data harvesting and many of its most loyal customers are local law enforcement agencies.

Mark Harris of Wired has put together a fascinating expose of the company's work with US law enforcement based on documents obtained via FOIA requests. What's uncovered does little to alter Palantir's reputation as an enemy of personal privacy. What's added to this rep isn't any more flattering: the documents show Palantir handles data carelessly, ties customers into overpriced support/upgrades, and otherwise acts as though it has to answer to no one.

In one case, files marked as sensitive by a Long Beach drug squad detective were still accessible by other officers who shouldn't have had access. Multiple emails to Palantir failed to resolve the issue. Making it worse was the fact the problem couldn't be contained in-house. When agencies sign up for Palantir services, they're given heavily-discounted rates if they allow their data to be shared with other law enforcement agencies. Detectives hoping to protect sensitive sources and undercover cops from outside access were finding out their employers had signed that option away in exchange for cheaper initial pricing.

That's just the beginning of Palantir problems uncovered by these public document requests:

In the documents our requests produced, police departments have also accused the company, backed by tech investor and Trump supporter Peter Thiel, of spiraling prices, hard-to-use software, opaque terms of service, and “failure to deliver products” (in the words of one email from the Long Beach police). Palantir might streamline some criminal investigations—but there’s a possibility that it comes at a high cost, for both the police forces themselves and the communities they serve.

These documents show how Palantir applies Silicon Valley’s playbook to domestic law enforcement. New users are welcomed with discounted hardware and federal grants, sharing their own data in return for access to others’. When enough jurisdictions join Palantir’s interconnected web of police departments, government agencies, and databases, the resulting data trove resembles a pay-to-access social network—a Facebook of crime that’s both invisible and largely unaccountable to the citizens whose behavior it tracks.

Palantir encourages the use of predictive policing. By analyzing data from past incidents and arrests, agencies are supposed to be able to identify "hot spots" where criminal activity is likely to occur and step up patrols in those areas. There are several problems with this approach, not the least of which is the latent encouragement of profiling by officers patrolling these areas, who are likely to view everyone they approach as a criminal suspect, rather than someone who just lives or works in a software-generated "hot spot."

But the problems go deeper than that with Palantir involved. Predictive policing is data-driven. But it is also a victim of circular logic. If predictive policing doesn't appear to be having much effect, the usual solution is to feed it more data. Palantir's predictive algorithms are particularly data-hungry. Officers patrolling hot spots are required to fill out heavily-detailed encounter reports, detailing everything they can about the person spoken to, as well as anything else observed in that area. This is all fed into Palantir's predictive policing software.

At this point, the gathering of data became so streamlined, law enforcement agencies have begun allowing Palantir to swallow up other law enforcement databases -- namely CLETS (California Law Enforcement Telecommunications Systems) -- and allow it to crunch idata into something actionable. Sure enough, Palantir's software has coughed up… something. But tips as bad as these should come from unvetted informants and questionable eyewitnesses, not multimillion dollar programs.

In February 2013, JRIC was tasked with tracking down Christopher Dorner, an ex-LAPD officer who had embarked on a series of shootings targeting law enforcement officers. The effort involved dozens of agencies across the state. “We used Palantir extensively to address that [and] were active 24/7 until he was caught or killed,” remembers Jackson. “We found that processing clues was a big challenge.”

In fact, on two separate occasions, police shot at trucks misidentified as belonging to Dorner, injuring three civilians.

A larger problem, at least in terms of personal privacy, is the potential for abuse. Smaller data silos meant unauthorized use/access of law enforcement databases could at least be somewhat mitigated by the limitations of the database itself. Now, with multiple agencies tied together through Palantir's data sharing (along with its swallowing of existing law enforcement databases), those wishing to abuse their access have a much larger dataset to dig through.

In the end, someone has to pay for all this data. And, man, will they ever. Obtained documents and interviews with officials show Palantir seduces law enforcement with low introductory prices before ratcheting up the fees once they have nowhere else to go.

According to LA County contracts, when JRIC committed to the full Palantir system in October 2011, the LASD paid around $122,000 each for 20 Palantir “cores”: packages of already-configured computer servers bundled with preinstalled software. That price was approximately $19,000 less per core than Palantir charged the federal government. According to paperwork for the pilot program, LASD received a “special discount because it [would] be the first in the LA basin to use this software.”

[...]

Palantir’s customers must rely on software that only the company itself can secure, upgrade, and maintain. Although the letter noted Palantir had not provided JRIC with any of its requested (but unspecified) metrics by spring 2016, the company is set to receive annual maintenance payments of nearly $2.5 million from the fusion center through the spring of 2019.

That's taxpayer money being fed to a single-source contractor whose end goal is to tie everyone to everyone else using steep discounts predicated on data sharing. And it appears to be drowning in data, with no customer able to point to positive, real-world changes that can be conclusively linked to Palantir's law enforcement software. But it's too late to do anything about it. In California, law enforcement agencies bought cheap and surrendered control. It's likely happening elsewhere in the nation, but the paper trail has yet to be exposed. Citizens, of course, are the ones paying for all of this, not only with their tax dollars but with their individuality, having been reduced to data points in a stream of alleged criminal activity held by a private party that's probably already imagining secondary markets for its law enforcement data stores.

When last we checked in with former FCC Commissioner Harold Furchtgott-Roth, he was rather grotesquely using the Manchester bombing to try and launch a completely bizarre attack on net neutrality over at the Forbes op-ed pages. Furchtgott-Roth, who served as an FCC Commissioner from 1997 through 2001, now works at the Hudson Institute, which not-coincidentally takes money from large incumbent broadband providers. The Hill, Forbes and other similar outlets then publish not-so-objective "analysis" from such individuals without really disclosing the money or motives driving the rhetoric.

In his missive for hire last May just days after the Manchester attack, Furchtgott-Roth tried to argue that protecting net neutrality somehow aids and abets terrorism and murder:

"A sensible question is why civilized governments do not seek to deprive terrorists of unfettered access to the Internet...Sadly, here in America, limiting access to the Internet would be illegal under the euphemistic term “network neutrality,” the two-year-old experiment in federal regulation of the Internet...To its supporters, network neutrality is a bulwark of civilization. But network neutrality is also a shield for terrorists who seek to destroy civilization."

As we noted then, Furchtgott-Roth doesn't appear to have even the remotest understanding of how the internet or net neutrality works, and conflated the issue of net neutrality with his own deep-rooted desire to see greater government censorship of the internet. That lust for censorship runs so deep, Furchtgott-Roth envisioned a future where ISPs could compete with one another (as if that's a thing) by how heavily they censor internet content:

"Under network neutrality, broadband companies--such as AT&T, Charter, Comcast, Sprint, T-Mobile, and Verizon—are prohibited from discriminating against any lawful websites or content. There is no clear distinction between lawful and unlawful websites and content. The net result is a broadband company could and likely would be sued for blocking websites housing information about recruitment and organization for ISIS, Al Qaeda, the Ku Klux Klan, or other terrorist groups. It is also illegal to block content that instructs viewers on how to manufacture explosives such as nail bombs."

Again, that has nothing to do with net neutrality. Net neutrality encourages the internet as a level playing field free of the anti-competitive or editorial meddling of giant telecom conglomerates comfortable in uncompetitive markets. And while ISPs are banned from blocking legal websites under the rules, few ISPs have interest in outright blocking of content in the first place due to political and PR backlash. In other words, eliminating net neutrality would do nothing to expedite Furchtgott-Roth's vision of a filtered internet anyway. ISPs simply aren't interested, and individuals have every right to avoid or filter websites as they see fit.

The former FCC Commissioner turned think tank "expert" simply conflated two completely unrelated issues (either intentionally for effect or unintentionally out of confusion) to try to demonize popular net neutrality protections. Apparently undaunted by his previous run in with extreme myopia and insensitivity, Furchtgott-Roth has since published a second, horribly ill-timed screed against net neutrality over at Forbes, this time blaming net neutrality for the resurgence of neo-nazis and white supremacy:

"In many countries around the world, national governments block much content and decide which websites its citizens can access. In the United States, we should allow individuals, not the government, to make those decisions. Broadband companies, including those currently regulated by network neutrality rules, should be allowed to offer various filtered services and filtering technologies to allow individuals to avoid content that they would rather not see, or have their families see. Families that want to block Daily Stormer and its ilk from the Internet should be allowed to purchase such a service directly from any business, and not have the FCC tell them that such a service is unlawful in the name of network neutrality."

That's an even deeper layer of bullshit than Furchtgott-Roth's original treatise. There's absolutely nothing in the net neutrality rules preventing individuals from using any filtering technology they'd like at any time under something known as personal responsibility. At no point has the FCC ever indicated that families can't purchase any filtering or parental control service they want. This is a completely made up and bizarre claim, made with total insensitivity to the recent attacks in Charlottesville, all to try to demonize some basic, popular consumer protections for the open internet.

At this point it feels like Furchtgott-Roth is just sitting around waiting for tragedies so he can blame them on the pure evil that is net neutrality. It would be lovely if he would fucking stop that.

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Earlier this year you might recall that lawmakers voted along party lines to kill consumer broadband privacy protections. The rules, which large ISPs whined incessantly about, were relatively basic; simply ensuring that ISPs couldn't collect or sell your personal data without being transparent about it and providing working opt out tools. The rules were only proposed after ISPs repeatedly showed they weren't able to self regulate on this front in the face of limited competition, from AT&T's plan to charge more for privacy, to Verizon getting busted for covertly modifying wireless packets to track users without consent.

After a massive lobbying push, the usual loyal ISP allies like Tennessee Rep. Marsha Blackburn rushed to help free these incumbent duopolists from the terror of accountability. In response, many of these lawmakers faced a naming and shaming campaign by consumer advocacy group Fight for the Future, which crowdsourced the funding of billboards erected in their home districts clearly highlighting how they took ISP campaign contributions in exchange for selling consumer privacy down river:

Of course many of those same lawmakers have, as instructed, now shifted their gaze toward supporting the FCC's plan to ignore the public and dismantle net neutrality protections. As a plan B, most of them are being prodded by ISPs to help craft a new net neutrality law. One that pretends to solve the problem, but will be written by industry lawyers to intentionally include so many loopholes as to be arguably useless. This cacophony of self-serving dysfunction again highlights how AT&T, Verizon, Comcast and Charter campaign contributions trump the public interest on a routinely grotesque scale.

Hoping to piggyback on its privacy campaign, Fight for the Future has now similarly-crowdfunded new billboards shaming lawmakers that have breathlessly supported killing popular net neutrality protections. Which politicians are shamed is being determined by a congressional scorecard, which tracks just how cozy politicians are with incumbent telecom duopolies. Needless to say, Marsha Blackburn again took top honors and is being featured again in the group's latest effort:

The group is hoping that this naming and shaming campaign will help shake these lawmakers' constituents out of their apparent slumber:

"Politicians need to learn that they can’t attack free speech on the Internet and expect to get away with it,” said Evan Greer, campaign director of Fight for the Future (pronouns: she/hers), “Voters from across the political spectrum all agree that they don’t want companies like Comcast and Verizon dictating what they can see and do online. No one is fooled by corrupt lawmakers’ attempts to push for bad legislation while they strip Internet users of protections at the FCC. Hundreds of people donated to make these billboards possible. When you come for the Internet, the Internet comes for you.”

The problem, as always, is that folks like Marsha Blackburn have been selling out their constituents for years and are consistently re-elected anyway. Blackburn was a major supporter of SOPA, and is the cornerstone of an AT&T stranglehold over Tennessee's state legislature that's so severe, AT&T lawyers are quite literally allowed to write protectionist state laws protecting the company from anything that even smells like competition. Tennessee is, not at all coincidentally, one of the least connected states in the union for just this reason.

Of course there's any number of reasons for why folks like Blackburn are immune to accountability efforts. Gerrymandering and voter suppression certainly plays a role. But so too does concerted disinformation campaigns that frame kissing Comcast's ass as a heroic quest for freedom, and important technology issues of interest to all (like oh, the internet fucking working) as somehow partisan. Still, you'd like to think that with enough elbow grease and repetition, even folks like Blackburn can't be permanently immune from something at least vaguely resembling accountability.

Eugene Volokh (along with Public Citizen's Paul Levy) has made a cottage industry of sniffing out bogus/fraudulently-obtained court orders demanding the delisting of unflattering content. Much of this seemed to be the work of desperate reputation management "gurus," who had over-promised and under-delivered in the past. Abusing the DMCA process only goes so far. Sometimes you need to lie to judges to get things done.

Sometimes you just need to pretend you're the judge. Convicted sex offender Abraham Motamedi forged a court order awarding himself legal fees and the delisting of content indicating he was a convicted sex offender. When called on it, Motamedi claimed he had nothing to do with it while also claiming the order was legit. These two viewpoints cannot be resolved logically. If it was legit, Motamedi would have had to appear in court to obtain them. If it wasn't legit, then assertions otherwise won't suddenly make a nonexistent case appear on a Michigan court's docket.

Forgeries continue, as Eugene Volokh reports. A man who attempted to use a forged court order to vanish content from the internet appears to have doubled down.

In April, I mentioned two prosecutions for such forgeries, including a prosecution of one Garner Ted Aukerman, who was convicted of contempt of court based on a judge’s finding that he was responsible for “a fraudulent court order [that] has never been entered by [the] court”:

"Apparently Mr. Aukerman has taken [an] order setting the matter for hearing and deleted the middle section of that order in which he generated [in context, I think this means “inserted" -EV] the detail concerning the court’s findings and orders. A hearing was never held, those findings were never made and the order is completely fraudulent."

Then, Monday, I saw that someone had submitted a takedown request to Google, asking that it remove (among other things) my April post, a copy of the forged court order, and a court order from a different Ohio court that declared Aukerman to be a vexatious litigant and thus requiring him to get leave of court before filing lawsuits.

Perhaps no layperson understands the flow of legal documents quite like a vexatious pro se litigant. By "understand," I mean, has at least a passing familiarity with their general appearance and what they should contain. Still, even the most vexatious of litigants isn't going to be able to produce a fake court order targeting actual legal experts and get away with it.

Garner Aukerman apparently tried to muddle his judicial interlopment by trying to make the fake court order look like it was part of Aukerman's criminal prosecution. Aukerman's case has a sealed docket which makes it a little tougher to determine which of the several documents accompanying his takedown request doesn't belong. Unfortunately for Aukerman, his supposed delisting order confuses two legal issues in a way no real judge would.

The first part of the order provides for the sealing of criminal records after a certain amount of time has passed. This is legitimate. But the order goes on to demand the "sealing" of Volokh posts and posted documents about Aukerman's past bogus legal work, calling them "defamatory." Well, there are defamation cases and post-release criminal record expungement, but they aren't interchangeable and no judge is going to randomly declare some internet content to be defamatory for the hell of it while reminding a convict of his expungement rights.

Even if that part were struck, post-release expungement would only remove the government's official records pertaining to Aukerman's conviction. It has no power to demand the rest of internet participate in the expungement. There's no right to be forgotten law in the United States and, for better or worse, the internet tends to remember things long past the point the government itself has officially forgotten about them.

Volokh contacted the issuing court and discovered (to no one's surprise) the court hadn't actually issued this order. He also spoke to Aukerman, who claimed what he sent to Google was nothing more than a proposed order. Even if true, there's no point submitting a proposed order because no one's under any legal obligation to do anything until a judge approves it... unless the real point is to try to push one past Google's takedown review team and hope it doesn't notice the obvious fakery.