We’ve had plenty of posts discussing all manner of behavior from the Los Angeles Police Dept. and/or the LAPD union here at Techdirt. As you might imagine if you’re a regular reader here, the majority of those posts haven’t exactly involved fawning praise for these supposed crimefighters. In fact, if you went on a reading blitz of those posts, you might even come away thinking, “You know what? Fuck the LAPD!”
Well, if you wanted to display your sentiments while you went about your day, you might go over to the Cola Corporation’s website to buy one particular shirt it had on offer there before they completely sold out.
Now, it’s not uncommon for misguided entities to issue intellectual property threat letters over t-shirts and apparel, even when it is of the sort that is obviously fair use. Given that, you might have thought it would be the Los Angeles Lakers that sent a nastygram to Cola Corp. After all, the logo in question is clearly a parody of the LA Lakers logo.
Nope!
It was the Los Angeles Police Foundation via its IMG representatives. The LAPF is something of a shadow financier of the LAPD for equipment, including all manner of tech and gear. We have no idea how an entertainment agency like IMG got in bed with these assbags, but it was IMG sending the threat letter you can see below, chock full of all kinds of claims to rights that the LAPF absolutely does not and could not have.
If you can’t see that, it’s a letter sent by Andrew Schmidt, who represents himself as the Senior Counsel to IMG Worldwide, saying:
RE: Request to Remove Infringing Material From www.thecolacorporation.com Dear Sir/Madam:
I am writing on behalf of IMG Worldwide, LLC (“IMG”), IMG is the authorized representative of Los Angeles Police Foundation CLAPF) LAPF is one of two exclusive holders of intellectual property rights pertaining to trademarks, copyrights and other licensed indicia for (a) the Los Angeles Police Department Badge; (b) the Los Angeles Police Department Uniform; (c) the LAPD motto “To Protect and Serve”; and (d) the word “LAPD” as an acronym/abbreviation for the Los Angeles Police Department (collectively, the “LAPD IP”). Through extensive advertising, promotion and the substantial sale of a full range of licensed products embodying and pertaining to the LAPD IP, the LAPD IP has become famous throughout the world; and as such, carries immeasurable value to LAPF.
We are writing to you regarding an unauthorized use of the LAPD IP on products being sold on your website, www.thecolacorporation.com (the “Infringing Product”). The website URL and description for the Infringing Product is as follows: https://www.thecolacorporation.com/products fack-the- lupd pos-1&sid=435934961&&variant=48461787234611 FUCK THE LAPD For the avoidance of doubt, the aforementioned Infringing Product and the image associated therewith are in no way authorized or approved by LAPF or any of its duly authorized representatives.
This letter hereby serves as a statement that:
The aforementioned Infringing Product and the image associated therewith violate LAPF’s rights in the LAPD IP
These exclusive rights in and to the LAPD IP are being violated by the sale of the Infringing Product on your website at the URL mentioned above;
[Contact info omitted]
On information and belief, the use of the LAPD IP on the Infringing Products is not authorized by LAPF, LAPF’s authorized agents or representatives or the law.
Under penalty of perjury, I hereby state that the above information is accurate and I am duly authorized to act on on behalf of the rights holder of the intellectual. property at issue I hereby request that you remove or disable access the above-mentioned materials and their corresponding URL’s as they appear on your services in as expedient a manner as possible.
So, where to begin? For starters, note how the letter breezily asserts copyright, trademark, and “other licensed indicia” without ever going into detail as to what it thinks it actually holds the rights to? That’s an “indicia” of a legal threat that is bloviating, with nothing to back it up. If you know what rights you have, you clearly state them. This letter does not.
If it’s a copyright play that the LAPF is trying to make, it’s going to go absolutely nowhere. The use is made for the purposes of parody and political commentary. It’s clearly fair use, and there are plenty of precedents to back that up. Second, what exactly is the copyright claim here? It’s not the logo. Again, if anything, that would be the Lakers’ claim to make. The only thing possibly related to the LAPD would be those letters: LAPD. And, no, the LAPD does not get to copyright the letters LAPD.
If it’s a trademark play instead, well, that might actually work even less for the LAPF, for any number of reasons. Again, this is parody and political commentary: both First Amendment rights that trump trademarks. More importantly, in trademark you have the question of the likelihood of confusion. We’re fairly sure the LAPF doesn’t want to make the case that the public would be confused into thinking that the Los Angeles Police Foundation was an organization that is putting out a “Fuck the LAPD” t-shirt. Finally, for there to be a trademark, there has to be a use in commerce. Is the LAPF selling “Fuck the LAPD” t-shirts? Doubtful.
But that’s all sort of besides the point, because the LAPF doesn’t have the rights IMG asserted in its letter. Again, the only possible claim that the LAPF can make here is that it has ownership to the letters LAPD. And it does not. Beyond the fact that it had no “creative” input into LAPD, the LAPD is a city’s law enforcement agency and you cannot copyright or trademark such a thing. And, as we’ve discussed multiple times in the past, government agencies don’t get to claim IP on their agency names. The only restrictions they can present are on deceptive uses of logos/seals/etc.
So, what is actually happening here is that the LAPF/LAPD (via IMG) is pretending it has the right to screw with private citizens in ways it absolutely does not, and is using those false rights to harass those private persons with threatening behavior to intimidate them into doing what the LAPF wants. Which, if I’m being totally honest here, is certainly on brand as roughly the most police-y thing it could do in response to a simple t-shirt that is no longer even for sale.
Now, you might imagine that the Cola Corporation’s own legal team would reply to the silly threat letter outlining all of the above, crafting a careful and articulate narrative responding to all the points raised by the LAPF, and ensuring that their full legal skills were on display.
Instead, the company brought on former Techdirt podcast guest, lawyer Mike Dunford, who crafted something that is ultimately even better.
If you can’t read that, you’re not missing much. It says:
Andrew,
Lol, no.
Sincerely, Mike Dunford
Perfect. No notes. May it go down in history alongside Arkell v. Pressdam, or the infamous Cleveland Browns response to a fan complaining about paper airplanes, as the perfect way to respond to absolutely ridiculous legal threat letters.
For what it’s worth, Dunford’s boss, Akiva Cohen, noted that this letter was “a fun one to edit.” We can only imagine.
Sometimes my “I have not participated in any conspiracy to or complicity in murder” t-shirt raises a lot of questions already answered by my shirt.
Remember Rajat Khare? He’s the guy associated with Appin Technologies in India, and there’s a pattern of stories mentioning his name suddenly disappearing (or his name disappearing from them) after his various lawyers get involved. Could be a coincidence. Might not be.
We had written about Appin successfully getting an Indian court to order Reuters and Google to remove a story about Appin last year based on a preliminary court ruling. Then we received a bunch of emails from Appin demanding we remove our article. A few weeks ago, we (with help from EFF) told Appin that we were under no obligation to do so.
Reporter Andy Greenberg at Wired wrote about all of this the day we released our response. Now, a couple of weeks later, Wired has updated their story to note that Khare’s lawyers had contacted them two weeks after the story had gone up (despite Greenberg having reached out to Appin and receiving no response) to complain about not having been asked for comment, calling Wired’s story defamatory, and demanding a retraction.
There was something else too:
Neither Appin Training Centers nor Rajat Khare responded to WIRED’s request for comment. However, two weeks after this story was initially published, lawyers from the firm Clare Locke sent a letter to WIRED on Khare’s behalf, calling this story defamatory and demanding a retraction. WIRED stands by its reporting. The letter claimed that WIRED did not reach out to Khare for comment, which is false. It demanded that WIRED include a statement from Khare, which we’ve added as an update below. In addition, it denied that Khare had participated in any “conspiracy to or complicity in murder”—an allegation that was not made in this article.
Earlier this year, we discussed a frustrating story regarding one company in the UK, Cornices Centre, threatening a cyclist over a YouTube video showing what purports to be a near miss by a truck with the company’s name and logo on it. Those threats centered on a very confused understanding of trademark law, such that the company thought it could demand the YouTube video be taken down by claiming that the appearance of the branding in the video somehow equates to trademark infringement. That obviously is not how trademark law works and the company eventually rescinded that threat for the time being. I concluded that post with the following:
And that isn’t the only Streisand vector by which this story is getting much more attention than its initial 400 views. Legal commentators are doing their own videos and posts on the subject, including this one. What was a couple of hundred views of an incident has instead turned into thousands and thousands of views, as well as potential legal action against the company from the cyclist.
It’s probably time to get that apology out post-haste, Cornices Centre!
Cornices Centre did not take my advice. Instead, the company has apparently decided to go for some kind of Streisand Effect multiplier by now going after some of those legal commentators speaking on the story that I mentioned above.
Daniel ShenSmith, who posts legal advice on his BlackBeltBarrister YouTube channel(link is external), says the company has made “veiled threats” concerning his conduct as a barrister in a letter, and called on the lawyer to remove a video in which he criticised the motorist’s driving and the company’s “ridiculous” claim that the cyclist’s close pass clip breached trademark infringement.
In a video posted on his YouTube channel this weekend(link is external), ShenSmith also revealed that the company has threatened him over his response to their initial complaint, calling on him to remove the video in which he criticises both the driver’s actions and the firm’s trademark infringement claim, a move he describes as “out of order” and designed to quell public criticism of the company.
That design is not going to work. Just as with the initial attempt to bury criticism against the company by threatening the cyclist, which ballooned what was a 400-view video into one with tens of thousands of views, all this bullying behavior does is keep the negative news about the company circulating. Now the barrister is commenting on the situation more. Other news outlets, such as us, are talking about this more. All this is doing is pushing the story about the company’s actions, and the driver in the video, further into circulation.
And, frankly, engaging in all of this behavior and directing it to a lawyer is probably not the best of plans.
“I’m not going to take the video down, because there is no legal basis at all that would require me to take it down. My video was of public interest, because it was a driver driving badly, who was caught by a cyclist, and ultimately prosecuted. I was giving my opinion on the driving in the video as a barrister and it turns out I was right, as he was prosecuted.
“Facts are facts, the roads are safer, and the general public are now more informed and less likely to be bullied.”
For the love of god, Cornices Centre, stop digging! You’re already in a hole!
It’s no secret that there are mountains of examples of companies and individuals attempting to use intellectual property laws merely to silence critics and disappear information from the internet. While I’m sure this sort of thing must somtimes work, it’s also quite common for these would-be censorial folks to be introduced to the Streisand Effect instead, finding that the attempt to suppress negative information instead gains it far more attention than it would have had on its own.
Well, allow me to introduce you to a company called Cornices Centre in the UK. Cornices Centre makes some really beautiful plaster-based interior products such as moldings and decoratives. And, on at least one occasion, one of its drivers nearly ran over a cyclist that happened to be wearing a helmet camera.
The road.cc reader who told us about the incident initially uploaded the video to their YouTube channel (Chapona Bicyclette(link is external)) and forwarded a copy to Cornices Centre, the company whose van driver close passed him on Chelsea Embankment in November.
Once the company had a chance to review the video, you would have imagined that a simple apology would have been in order. Or maybe some kind of disciplinary action against the driver. Or, hey, maybe just silence. You know, ignore the pesky cyclist and hope he just goes away.
Instead, Cornices Centre decided to try to pretend trademark laws disallow the uploading of a video in a public space merely because its logo appears on the truck.
But, rather than an apology and “some form of disciplinary action against their driver”, the road.cc reader instead received a lengthy email from a company director claiming that “unauthorised use” of their ‘CORNICES CENTRE®’ trademark was “confusing our customers, negatively impacting our brand reputation, and potentially harming our sales and the exclusivity of our trademark”, something the company wanted addressed with prompt removal of its name from the “video content and descriptions”.
If unaddressed or refused, the email seen by road.cc continued, the company said it would be “prepared to take legal action if necessary” and would “seek legal redress and claim any related expenses, including lost sales”.
The speed with which the company would lose any such legal action over trademark in this instance would rival one of its reckless drivers. There is nothing about trademark law in the UK that would somehow make any of this trademark infringement. And it’s quite likely the company knows that. What I’m sure it was hoping was that the threat of legal action would spook the cyclist and cause them to take the video down off of YouTube.
The company was mistaken.
“The company could have quite easily apologised and confirmed some form of disciplinary action against their driver,” the road.cc reader explained. “But instead decided to threaten me with legal action for using their trademark without permission.
“This gives me the impression that they didn’t think their driver did anything wrong. Despite the video showing the van passing me within easy reach. Whilst they were concerned about brand damage of a YouTube video with 400 views at the time, it’s now had 40,000 views in the past 24 hours, since word of the ‘trademark infringement’ got out. One might allege this has backfired.
“I’m considering legal action against Cornices Centre now, with proceeds going to a cycling charity. I don’t want their money, but I would like an apology, both for the diabolical driving and their unfounded legal threats.
And that isn’t the only Streisand vector by which this story is getting much more attention than its initial 400 views. Legal commentators are doing their own videos and posts on the subject, including this one. What was a couple of hundred views of an incident has instead turned into thousands and thousands of views, as well as potential legal action against the company from the cyclist.
It’s probably time to get that apology out post-haste, Cornices Centre!
The fakest “free speech absolutist” who ever lived is at it again. As you may recall, earlier this year, Elon Musk sued the Center for Countering Digital Hate (CCDH) claiming that its report documenting an alleged “surge of hateful content” on exTwitter somehow violated contracts (after first threatening to sue for defamation, but not actually suing for defamation).
Apparently unhappy with how it is faring in the marketplace of ideas, X Corp. asks this Court to shut that marketplace down—to punish the CCDH Defendants for their speech and to silence others who might speak up about X Corp. in the future. Thus, X Corp. seeks “at least tens of millions of dollars” in damages based on how advertisers reacted to what the CCDH Defendants said about X Corp. in their public reports. Conspicuously, X Corp. has not asserted a defamation claim—understandably so, since it cannot allege that the CCDH Defendants said anything knowingly false, nor does it wish to invite discovery on the truth about the content on its platform. Instead, X Corp. has ginned up baseless claims purporting to take issue with how the CCDH Defendants gathered data that formed the basis for their research and publications. Each theory is flimsier and more absurd than the last….
[….]
X Corp.’s claims are riddled with legal deficiencies on their own terms. They also all share one fundamental flaw: at its core, X Corp.’s grievance is not that the CCDH Defendants gathered public data in violation of obscure (and largely imagined) contract terms, but that they criticized X Corp. (forcefully) to the public. In essence, X Corp. seeks to dodge the requirements that the First Amendment imposes on defamation claims by asserting other claims that are no less entwined with the CCDH Defendants’ speech.
What happens in that case will be interesting to follow. As we’ve noted, we’ve frequently disagreed with CCDH’s research, and think they’re prone to exaggeration and misunderstanding. But that doesn’t mean they can’t say what they want to say. The marketplace of ideas that Musk keeps pretending to support would mean that he has every opportunity to reply. But suing is using the power of the state to silence speech, and that’s what the 1st Amendment is supposed to stop.
But “free speech absolutist” Elon Musk simply cannot stand anyone criticizing him at all.
As you likely know, on Thursday, Media Matters released a report detailing how they found big name advertisers’ ads next to blatant neo-Nazi content. This came just a day after Elon wholeheartedly endorsed the ridiculous made up antisemitic “replacement theory” trope.
Soon after that happened, as we noted, IBM pulled its advertising from exTwitter. All day Friday there were more and more reports of big advertisers pulling their ads, including Apple (which has been one of the biggest, if not the biggest advertiser left on exTwitter). Also pausing ads: Disney (another big one), Comcast/NBCUniversal, Lionsgate, Warner Bros. Discovery, Paramount, Sony Pictures… and even the EU?
The movie studios were big advertisers on the site, so that’s gotta hurt.
But rather than trying to be better, on Friday night Elon went into typical Elon mode. He announced on exTwitter a plan to sue Media Matters first thing Monday morning (this morning):
If you can’t read that, it’s Elon posting a poorly edited document (which we’ll get to in a moment) and tweeting:
The split second court opens on Monday, X Corp will be filing a thermonuclear lawsuit against Media Matters and ALL those who colluded in this fraudulent attack on our company.
Their board, their donors, their network of dark money, all of them …
So, um, first of all, as threatened, this is a SLAPP suit. A blatant SLAPP suit and a clearly vexatious one. Also, under what fucked up theory of liability does one get to sue Media Matters’ board and donors? This is not how any of this works.
Now, let’s get to the document in the image. Here’s what it says, broken up with some commentary:
Stand with X to protect free speech
This week Media Matters for America posted a story that completely misrepresented the real user experience on X, in another attempt to undermine freedom of speech and mislead advertisers.
Above everything, including profit, X works to protect the public’s right to free speech. But for speech to be truly free, we must also have the freedom to see or hear things that some people may consider objectionable. We believe that everyone has the right to make up their own minds about what to read, watch, or listen to – because that’s the power of freedom of speech.
Despite our clear and consistent position, X has seen a number of attacks from activist groups like Media Matters and legacy media outlets who seek to undermine freedom of expression on our platform because they perceive it as a threat to their ideological narrative and those of their financial supporters. These groups try to use their influence to attack our revenue streams by deceiving advertisers on X.
Hey, free speech absolutist: activists using their free speech to criticize you is free fucking speech too. It’s hilariously hypocritical that Musk says here that “for speech to be truly free, we must also have the freedom to see or hear things that some people may consider objectionable”… in an announcement of a plan to sue an organization for speech Musk personally finds objectionable.
Similarly you do not actually “believe that everyone has the right to make up their own minds about what to read, watch, or listen, to” when you are making that claim in a document about how you are going to sue an organization to remove them from that marketplace of ideas, such that people are not, in fact, able to make up their mind. You’re seeking to silence someone for their speech.
Here are the facts on Media Matters’ research:
To manipulate the public and advertisers, Media Matters created an alternate account and curated the posts and advertising appearing on the account’s timeline to misinform advertisers about the placement of their posts. These contrived experiences could be applied to any platform.
Once they curated their feed, they repeatedly refreshed their timelines to find a rare instance of ads serving next to the content they chose to follow. Our logs indicate that they forced a scenario resulting in 13 times the number of ads served compared to the median ads served to an X user.
Of the 5.5 billion ad impressions on X that day, less than 50 total ad impressions were served against all of the organic content featured in the Media Matters article.
For one brand showcased in the article, one of its ads ran adjacent to a post 2 times and that ad was seen in that setting by only two users, one of which was the author of the Media Matters article.
For another brand showcased in the article, two of its ads served adjacent to 2 posts, times, and that ad was only seen in that setting by one user, the author of the Media Matters article.
Media Matters’ article also highlights nine posts they believe should not be allowed on X. Upon evaluation, only one of the nine organic posts featured in the article violated our content policies, and we’ve taken action on it under our Freedom of Speech, Not Reach enforcement approach.
So, in a true “marketplace of ideas” you present those points, and then you let everyone “make up their own minds” about what to believe. You don’t sue. Suing over such speech is anti-free speech.
But, here’s the real kicker: in this post, Musk admits that what they published was in fact what happened. The fact that they may have set up a special account and tried to just follow sketchy accounts does not change the facts. They saw blatant neo-Nazi content on the site and it had ads next to it from big name advertisers.
In other words, in this screed, Elon is flat out admitting that Media Matters’ report was factually accurate. He’s only disputing their interpretation of those facts. And… that’s not defamatory.
Also, admitting that 8 out of the 9 neo-Nazi posts they called out are fine under your policies is not quite the claim you think it is.
Here’s a summary on this all:
1. X will protect the public’s right to free expression. We will not allow agenda-driven activists, or even our own profits, to deter our vision.
Except if that public points out things that make Elon mad. Then, free expression is out the window. What a fucking hypocrite.
2. Everyone has a choice on X. User and brand control on X is superior to a year ago.
Everyone, that is, except for activists who criticize you. Those people get sued with a SLAPP suit designed to silence them.
3. Data wins over allegations. Media Matters does not reflect the user experience on X.
The data shows that their report was accurate. You just disagree with their interpretation. Which, again, is free speech.
As we’ve seen in some parts of the world, when free expression is taken away, it is very dangerous and hard to get back – that’s why the people who came before us fought so hard to protect. Without freedom of speech we lose the checks and balances critical to a thriving democracy. We must defend our individual rights as if our lives, and flourishing society, depend on it.
Yes. This is why we need strong anti-SLAPP laws at both the state and federal level to stop this kind of nonsense. What Elon is doing here is not “defending free speech,” it’s literally attacking it.
If you’re really in on protecting free speech, then we all need to protect it completely.
Stand with X to protect free speech.
… “by suing a non-profit for speech that criticizes us.”
This is not free speech at all. This is Elon believing that free speech is only the speech he likes, and anything that criticizes exTwitter must be against free speech, because it drives support away from exTwitter which (in his mind alone) is fighting for free speech. This is authoritarian bullshit. It’s “we have to kill these protestors to protect our freedoms” kind of nonsense.
Also, Elon, the advertisers pulling their ads? It’s not because of Media Matters. It’s because you fucking endorsed a bonkers antisemitic conspiracy theory the same week. Part of free speech is the right not to associate with speech. Companies criticizing you is free speech. Same thing when companies choose not to associate with you.
And, not surprisingly, Elon’s biggest fans are cheering this on. A bunch of bluechecks cheering him on for “fighting for free speech” by… promising to sue an organization for its free speech. These people are delusional.
It sure seems like all their “free speech” support is pretty fucking conditional on whether or not they like the speech, huh?
And, because these stories can always get dumber, on Sunday there was an exchange in which someone (falsely) suggested that what Media Matters did (signing up for an account, following neo-Nazis, reporting that they saw ads) is the equivalent of fraud (it’s not). And that resulted in world’s worst human being candidate Stephen Miller tweeting that “fraud is both civil and criminal” and suggesting that “conservative state Attorneys General” should look into it, because he doesn’t even remotely care one bit about pretending that he’s not talking about having law enforcement prosecute speech because of ideological differences.
Musk, who I must remind you pretends to be a “free speech absolutist”, responded to Miller’s blatant call for having “conservative” AGs file criminal charges over speech because of ideological differences by cheering it on, followed by Missouri’s Andrew Bailey saying that his team was investigating:
Here’s where I remind you that AG Bailey is one of the two state AGs leading the case (currently before the Supreme Court) arguing that “the government should never try to influence how social media moderates.” That case started out as Missouri v. Biden (though the Supreme Court version is Murthy v. Missouri). Either way, Bailey is AG of Missouri.
So his argument appears to be “the Biden administration cannot pressure social media, but the Missouri government absolutely can.” Or, more accurately “it’s unconstitutional when Democrats do it, but it’s absolutely fine when Republicans do.”
I’m curious to see if any of those supporting Missouri’s case will admit that Bailey is a fucking hypocrite here?
Anyway, we’re posting this Monday morning, though as Ken White helpfully pointed out to Elon, you don’t have to fucking wait until Monday morning to file a lawsuit in the age of electronic filings:
So, who knows, it’s possible the lawsuit has already been filed (though, as Ken pointed out over on Bluesky, “only a twat would rush to file a complicated lawsuit.”) However, I’m traveling today, so if an actual lawsuit was filed, I’ll find out about it later, and see what (if anything) is worth covering some other time.
We’ve spilled a great deal of ink discussing the GDPR and its failures and unintended consequences. The European data privacy law that was ostensibly built to protect the data of private citizens, but which was also expected to result in heavy fines for primarily American internet companies, has mostly failed to do either. While the larger American internet players have the money and resources to navigate GDPR just fine, smaller companies or innovative startups can’t. The end result has been to harm competition, harm innovation, and build a scenario rife with harmful unintended consequences. A bang up job all around, in other words.
And now we have yet another unintended consequence: hacking groups are beginning to use the GDPR as a weapon to threaten private companies in order to get ransom money. You may have heard that a hacking group calling itself Ransomed.vc is claiming to have compromised all of Sony. We don’t yet have proof that the hack is that widespread, but hacking groups generally both don’t lie about that sort of thing or it ruins their “business” plan, and Ransomed.vc has also claimed that if a buyer isn’t found for Sony’s data, it will simply release that data on September 28th. So, as to what they have, I guess we’ll just have to wait and see.
The hack was reported by Cyber Security Connect, which said that a group calling itself Ransomed.vc claimed to have breached Sony’s systems and accessed an unknown quantity of data. “We have successfully compromissed [sic] all of Sony systems,” Ransomed.vc wrote on its leak sites. “We won’t ransom them! we will sell the data. due to sony not wanting to pay. DATA IS FOR SALE … WE ARE SELLING IT.”
The site said the hackers posted some “proof-of-hack data” but described it as “not particularly compelling,” and also said that the file tree for the alleged hack looks small, given the group’s claim that it had compromised “all of Sony’s systems.” A price for the hacked data isn’t posted, but Ransomed.vc did list a “post date” of September 28, which is presumably when it will release the data publicly if no buyers are found.
But what really caught my attention was the description of how this particular group was going about issuing threats to its victims in order to collect ransoms. And part of the group’s reputation is that it compromises its victims and then hunts for GDPR violations, building ransom requests that are less consequential than what the GDPR violation fines would be.
While the hackers say they’re not going to ransom the data, Ransomed.vc apparently does have a history of doing so, with a unique twist: Cybersecurity site Flashpoint said in August that Ransomed takes “a novel approach to extortion” by using the threat of the European Union’s General Data Protection Regulation (GDPR) rules to convince companies to pony up. By threatening to release data that exposes companies to potentially massive GDPR fines, the group may hope to convince them that paying a little now is better than paying a whole lot later.
“The group has disclosed ransom demands for its victims, which span from €50,000 EUR to €200,000 EUR,” Flashpoint explained. “For comparison, GDPR fines can climb into the millions and beyond—the highest ever was over €1 billion EUR. It is likely that Ransomed’s strategy is to set ransom amounts lower than the price of a fine for a data security violation, which may allow them to exploit this discrepancy in order to increase the chance of payment.”
And so because of the mess that the GDPR is, combined with its remarkable level of fines, the end result is that in some respects the EU has empowered rogue hacking groups to act as its enforcement wing for GDPR. And that both sucks and certainly isn’t what the EU had in mind when it came up with this legislative plate of spaghetti.
Frankly, this has some parallels to other unintended boondoggles we’ve seen. What is making the hacking industry such a rich endeavor? Well, in part it’s the cyber-insurance industry and its habit of paying out the bad actors because it’s cheaper than helping their customers recover from ransomware and other attacks. All of which encourages more hacking groups to compromise more people and companies. GDPR appears to now operate in the same way for bad actors.
Well meaning or otherwise, when legislation purported to protect private data and interests instead proves to be a weapon in the hands of the very people most interested in compromising those private data and interests, it’s time to scrap the thing and send it back to the shop to be rebuilt, or discarded.
As to what this Sony hack actually is, for that we’ll have to wait and see.
We’re going to go slow on this one, because there’s a lot of background and details and nuance to get into in Friday’s 5th Circuit appeals court ruling in the Missouri v. Biden case that initially resulted in a batshit crazy 4th of July ruling regarding the US government “jawboning” social media companies. The reporting on the 5th Circuit ruling has been kinda atrocious, perhaps because the end result of the ruling is this:
The district court’s judgment is AFFIRMED with respect to the White House, the Surgeon General, the CDC, and the FBI, and REVERSED as to all other officials. The preliminary injunction is VACATED except for prohibition number six, which is MODIFIED as set forth herein. The Appellants’ motion for a stay pending appeal is DENIED as moot. The Appellants’ request to extend the administrative stay for ten days following the date hereof pending an application to the Supreme Court of the United States is GRANTED, and the matter is STAYED.
Affirmed, reversed, vacated, modified, denied, granted, and stayed. All in one. There’s… a lot going on in there, and a lot of reporters aren’t familiar enough with the details, the history, or the law to figure out what’s going on. Thus, they report just on the bottom line, which is that the court is still limiting the White House. But it’s at a much, much, much lower level than the district court did, and this time it’s way more consistent with the 1st Amendment.
The real summary is this: the appeals court ditched nine out of the ten “prohibitions” that the district court put on the government, and massively narrowed the only remaining one, bringing it down to a reasonable level (telling the U.S. government that it cannot coerce social media companies, which, uh, yes, that’s exactly correct).
But then in applying its own (perhaps surprisingly, very good) analysis, the 5th Circuit did so in a slightly weird way. And then also seems to contradict the [checks notes] 5th Circuit in a different case. But we’ll get to that in another post.
Much of the reporting on this suggests it was a big loss for the Biden administration. The reality is that it’s a mostly appropriate slap on the wrist that hopefully will keep the administration from straying too close to the 1st Amendment line again. It basically threw out 9.5 out of 10 “prohibitions” placed by the lower court, and even on the half a prohibition it left, it said it didn’t apply to the parts of the government that the GOP keeps insisting were the centerpieces of the giant conspiracy they made up in their minds. The court finds that CISA, Anthony Fauci’s NIAID, and the State Department did not do anything wrong and are no longer subject to any prohibitions.
The details: the state Attorneys General of Missouri and Louisiana sued the Biden administration with some bizarrely stupid theories about the government forcing websites to take down content they disagreed with. The case was brought in a federal court district with a single Trump-appointed judge. The case was allowed to move forward by that judge, turning it into a giant fishing expedition into all sorts of government communications to the social media companies, which were then presented to the judge out of context and in a misleading manner. The original nonsense theories were mostly discarded (because they were nonsense), but by quoting some emails out of context, the states (and a few nonsense peddlers they added as plaintiffs to have standing), were able to convince the judges that something bad was going on.
As we noted in our analysis of the original ruling, they did turn up a few questionable emails from White House officials who were stupidly trying to act tough about disinformation on social media. But even then, things were taken out of context. For example, I highlighted this quote from the original ruling and called it out as obviously inappropriate by the White House:
Things apparently became tense between the White House and Facebook after that, culminating in Flaherty’s July 15, 2021 email to Facebook, in which Flaherty stated: “Are you guys fucking serious? I want an answer on what happened here and I want it today.”
Except… if you look at it in context, the email has nothing to do with content moderation. The White House had noticed that the @potus Instagram account was having some issues, and Meta told the company that “the technical issues that had been affecting follower growth on @potus have been resolved.” A WH person received this and asked for more details. Meta responded with “it was an internal technical issue that we can’t get into, but it’s now resolved and should not happen again.” Someone then cc’d Rob Flaherty, and the quote above was in response to that. That is, it was about a technical issue that had prevented the @potus account from getting more followers, and he wanted details about how that happened.
So… look, I’d still argue that Flaherty was totally out of line here, and his response was entirely inappropriate from a professional standpoint. But it had literally nothing to do with content moderation issues or pressuring the company to remove disinformation. So it’s hard to see how it was a 1st Amendment violation. Yet, Judge Terry Doughty presented it in his ruling as if that line was about the removal of COVID disinfo. It is true that Flaherty had, months earlier, asked Facebook for more details about how the company was handling COVID disinfo, but those messages do not come across as threatening in any way, just asking for info.
The only way to make them seem threatening was to then include Flaherty’s angry message from months later, eliding entirely what it was about, and pretending that it was actually a continuation of the earlier conversation about COVID disinfo. Except that it wasn’t. Did Doughty not know this? Or did he pretend? I have no idea.
Doughty somehow framed this and a few other questionably out of context things as “a far-reaching and widespread censorship campaign.” As we noted in our original post, he literally inserted words that did not exist in a quote by Renee DiResta to make this argument. He claimed the following:
According to DiResta, the EIP was designed to “get around unclear legal authorities, including very real First Amendment questions” that would arise if CISA or other government agencies were to monitor and flag information for censorship on social media.
Except, if you read DiResta’s quote, “get around” does not actually show up anywhere. Doughty just added that out of thin air, which makes me think that perhaps he also knew he was misrepresenting the context of Flaherty’s comment.
Either way, Doughty’s quote from DiResta is a judicial fiction. He inserted words she never used to change the meaning of what was said. What DiResta is actually saying is that they set up EIP as a way to help facilitate information sharing, not to “get around” the “very real First Amendment questions,” and also not to encourage removal of information, but to help social media companies and governments counter and respond to disinformation around elections (which they did for things like misleading election procedures). That is, the quote here is about respecting the 1st Amendment, not “getting around” it. Yet, Doughty added “get around” to pretend otherwise.
He then issued a wide-ranging list of 10 prohibitions that were so broad I heard from multiple people within tech companies that the federal government canceled meetings with them on important cybersecurity issues, because they were afraid that any such meeting might violate the injunction.
So the DOJ appealed, and the case went to the 5th Circuit, which has a history of going… nutty. However, this ruling is mostly not nutty. It’s actually a very thorough and careful analysis of the standards for when the government steps over over the line in violating the 1st Amendment rights by pressuring speech suppression. As we’ve detailed for years, the line is whether or not the government was being coercive. The government is very much allowed to use its own voice to persuade. But when it is coercive, it steps over the line.
The appeals court analysis on this is very thorough and right on, as it borrows the important and useful precedents from other circuits that we’ve talked about for years, agreeing with all of them. Where is the line between persuasion and coercion?
Next, we take coercion—a separate and distinct means of satisfying the close nexus test. Generally speaking, if the government compels the private party’s decision, the result will be considered a state action. Blum, 457 U.S. at 1004. So, what is coercion? We know that simply “being regulated by the State does not make one a state actor.” Halleck, 139 S. Ct. at 1932. Coercion, too, must be something more. But, distinguishing coercion from persuasion is a more nuanced task than doing the same for encouragement. Encouragement is evidenced by an exercise of active, meaningful control, whether by entanglement in the party’s decision-making process or direct involvement in carrying out the decision itself. Therefore, it may be more noticeable and, consequently, more distinguishable from persuasion. Coercion, on the other hand, may be more subtle. After all, the state may advocate—even forcefully—on behalf of its positions
It points to the key case that all of these cases always lead back to, the important Bantam Books v. Sullivan case that is generally seen as the original case on “jawboning” (government coercion to suppress speech):
That is not to say that coercion is always difficult to identify. Sometimes, coercion is obvious. Take Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). There, the Rhode Island Commission to Encourage Morality—a state-created entity—sought to stop the distribution of obscene books to kids. Id. at 59. So, it sent a letter to a book distributor with a list of verboten books and requested that they be taken off the shelves. Id. at 61–64. That request conveniently noted that compliance would “eliminate the necessity of our recommending prosecution to the Attorney General’s department.” Id. at 62 n.5. Per the Commission’s request, police officers followed up to make sure the books were removed. Id. at 68. The Court concluded that this “system of informal censorship,” which was “clearly [meant] to intimidate” the recipients through “threat of [] legal sanctions and other means of coercion” rendered the distributors’ decision to remove the books a state action. Id. at 64, 67, 71–72. Given Bantam Books, not-so subtle asks accompanied by a “system” of pressure (e.g., threats and followups) are clearly coercive.
But, the panel notes, that level of coercion is not always present, but it doesn’t mean that other actions aren’t more subtly coercive. Since the 5th Circuit doesn’t currently have a test for figuring out if speech is coercive, it adopts the same tests that were recently used in the 2nd Circuit with the NRA v. Vullo case, where the NRA went after a NY state official who encouraged insurance companies to reconsider issuing NRA-endorsed insurance policies. The 2nd Circuit ran through a test and found that this urging was an attempt at persuasion and not coercive. The 5th Circuit also cites the 9th Circuit, which even more recently tossed out a case claiming that Elizabeth Warren’s comments to Amazon regarding an anti-vaxxer’s book were coercive, ruling they were merely an attempt to persuade. Both cases take a pretty thoughtful approach to determining where the line is, so it’s good to see the 5th Circuit adopt a similar test.
For coercion, we ask if the government compelled the decision by, through threats or otherwise, intimating that some form of punishment will follow a failure to comply. Vullo, 49 F.4th at 715. Sometimes, that is obvious from the facts. See, e.g., Bantam Books, 372 U.S. at 62–63 (a mafiosi-style threat of referral to the Attorney General accompanied with persistent pressure and follow-ups). But, more often, it is not. So, to help distinguish permissible persuasion from impermissible coercion, we turn to the Second (and Ninth) Circuit’s four-factor test. Again, honing in on whether the government “intimat[ed] that some form of punishment” will follow a “failure to accede,” we parse the speaker’s messages to assess the (1) word choice and tone, including the overall “tenor” of the parties’ relationship; (2) the recipient’s perception; (3) the presence of authority, which includes whether it is reasonable to fear retaliation; and (4) whether the speaker refers to adverse consequences. Vullo, 49 F.4th at 715; see also Warren, 66 F.4th at 1207.
So, the 5th Circuit adopts a strong test to say when a government employee oversteps the line, and then looks to apply it. I’m a little surprised that the court then finds that some defendants probably did cross that line, mainly the White House and the Surgeon General’s office. I’m not completely surprised by this, as it did appear that both had certainly walked way too close to the line, and we had called out the White House for stupidly doing so. But… if that’s the case, the 5th Circuit should really show how they did so, and it does not do a very good job. It admits that the White House and the Surgeon General are free to talk to platforms about misinformation and even to advocate for positions:
Generally speaking, officials from the White House and the Surgeon General’s office had extensive, organized communications with platforms. They met regularly, traded information and reports, and worked together on a wide range of efforts. That working relationship was, at times, sweeping. Still, those facts alone likely are not problematic from a First-Amendment perspective.
So where does it go over the line? When the White House threatened to hit the companies with Section 230 reform if they didn’t clean up their sites! The ruling notes that even pressuring companies to remove content in strong language might not cross the line. But threatening regulatory reforms could:
That alone may be enough for us to find coercion. Like in Bantam Books, the officials here set about to force the platforms to remove metaphorical books from their shelves. It is uncontested that, between the White House and the Surgeon General’s office, government officials asked the platforms to remove undesirable posts and users from their platforms, sent follow-up messages of condemnation when they did not, and publicly called on the platforms to act. When the officials’ demands were not met, the platforms received promises of legal regime changes, enforcement actions, and other unspoken threats. That was likely coercive
Still… here the ruling is kinda weak. The panel notes that even with what’s said above the “officials’ demeanor” matters, and that includes their “tone.” To show that the tone was “threatening,” the panel… again quotes Flaherty’s demand for answers “immediately,” repeating Doughty’s false idea that that comment was about content moderation. It was not. The court does cite to some other “tone” issues, but again provides no context for them, and I’m not going to track down every single one.
Next, the court says we can tell that the White House’s statements were coercive because: “When officials asked for content to be removed, the platforms took it down.” Except, as we’ve reported before, that’s just not true. The transparency reports from the companies show how they regularly ignored requests from the government. And the EIP reporting system that was at the center of the lawsuit, and which many have insisted was the smoking gun, showed that the tech companies “took action” on only 35% of items. And even that number is too high, because TikTok was the most aggressive company covered, and they took action on 64% of reported URLs, meaning Facebook, Twitter, etc., took action on way less than 35%. And even that exaggerates the amount of influence because “take action” did not just mean “take down.” Indeed, the report said that only 13% of reported content was “removed.”
So, um, how does the 5th Circuit claim that “when officials asked for content to be removed, the platforms took it down”? The data simply doesn’t support that claim, unless they’re talking about some other set of requests.
One area where the court does make some good points is calling out — as we ourselves did — just how stupid it was for Joe Biden to claim that the websites were “killing people.” Of course, the court leaves out that three days later, Biden himself admitted that his original words were too strong, and that “Facebook isn’t killing people.” Somehow, only the first quote (which was admittedly stupid and wrong) makes it into the 5th Circuit opinion:
Here, the officials made express threats and, at the very least, leaned into the inherent authority of the President’s office. The officials made inflammatory accusations, such as saying that the platforms were “poison[ing]” the public, and “killing people.”
So… I’m a bit torn here. I wasn’t happy with the White House making these statements and said so at the time. But they didn’t strike me as anywhere near going over the coercive line. This court sees it differently, but seems to take a lot of commentary out of context to do so.
The concern about the FBI is similar. The court seems to read things totally out of context:
Fourth, the platforms clearly perceived the FBI’s messages as threats. For example, right before the 2022 congressional election, the FBI warned the platforms of “hack and dump” operations from “state-sponsored actors” that would spread misinformation through their sites. In doing so, the FBI officials leaned into their inherent authority. So, the platforms reacted as expected—by taking down content, including posts and accounts that originated from the United States, in direct compliance with the request.
But… that is not how anyone has described those discussions. I’ve seen multiple transcripts and interviews of people at the platforms who were in the meetings where “hack and dump” were discussed, and the tenor was more “be aware of this, as it may come from a foreign effort to spread disinfo about the election,” coming with no threat or coercion — just simply “be on the lookout” for this. It’s classic information sharing.
And the platforms had reason to be on the lookout for such things anyway. If the FBI came to Twitter and said “we’ve learned of a zero day hack that can allow hackers into your back end,” and Twitter responded by properly locking down their systems… would that be Twitter “perceiving the messages as threats,” or Twitter taking useful information from the FBI and acting accordingly? Everything I’ve seen suggests the latter.
Even stranger is the claim that the CDC was coercive. The CDC has literally zero power over the platforms. It has no regulatory power over them and now law enforcement power. So I can’t see how it was coercive at all. Here, the 5th Circuit just kinda wings it. After admitting that the CDC lacked any sort of power over the sites, it basically says “but the sites relied on info from the CDC, so it must have been coercive.”
Specifically, CDC officials directly impacted the platforms’ moderation policies. For example, in meetings with the CDC, the platforms actively sought to “get into [] policy stuff” and run their moderation policies by the CDC to determine whether the platforms’ standards were “in the right place.” Ultimately, the platforms came to heavily rely on the CDC. They adopted rule changes meant to implement the CDC’s guidance. As one platform said, they “were able to make [changes to the ‘misinfo policies’] based on the conversation [they] had last week with the CDC,” and they “immediately updated [their] policies globally” following another meeting. And, those adoptions led the platforms to make moderation decisions based entirely on the CDC’s say-so—“[t]here are several claims that we will be able to remove as soon as the CDC debunks them; until then, we are unable to remove them.” That dependence, at times, was total. For example, one platform asked the CDC how it should approach certain content and even asked the CDC to double check and proofread its proposed labels.
So… one interpretation of that is that the CDC was controlling site moderation practices. But another, more charitable (and frankly, from conversations I’ve had, way more accurate) interpretation was that we were in the middle of a fucking pandemic where there was no good info, and many websites decided (correctly) that they didn’t have epidemiologists on staff, and therefore it made sense to ask the experts what information was legit and what was not, based on what they knew at the time.
Note that in the paragraph above, the one that the 5th Circuit uses to claim that the platform polices were controlled by the CDC, it admits that the sites were reaching out to the CDC themselves, asking them for info. That… doesn’t sound coercive. That sounds like trust & safety teams recognizing that they’re not the experts in a very serious and rapidly changing crisis… and asking the experts.
Now, there were perhaps reasons that websites should have been less willing to just go with the CDC’s recommendations, but would you rather ask expert epidemiologists, or the team who most recently was trying to stop spam on your platform? It seems, kinda logical to ask the CDC, and wait until they confirmed that something was false before taking action. But alas.
Still, even with those three parts of the administration being deemed as crossing the line, most of the rest of the opinion is good. Despite all of the nonsense conspiracy theories about CISA, which were at the center of the case according to many, the 5th Circuit finds no evidence of any coercion there, and releases them from any of the restrictions.
Finally, although CISA flagged content for social-media platforms as part of its switchboarding operations, based on this record, its conduct falls on the “attempts to convince,” not “attempts to coerce,” side of the line. See Okwedy, 333 F.3d at 344; O’Handley, 62 F.4th at 1158. There is not sufficient evidence that CISA made threats of adverse consequences— explicit or implicit—to the platforms for refusing to act on the content it flagged. See Warren, 66 F.4th at 1208–11 (finding that senator’s communication was a “request rather than a command” where it did not “suggest[] that compliance was the only realistic option” or reference potential “adverse consequences”). Nor is there any indication CISA had power over the platforms in any capacity, or that their requests were threatening in tone or manner. Similarly, on this record, their requests— although certainly amounting to a non-trivial level of involvement—do not equate to meaningful control. There is no plain evidence that content was actually moderated per CISA’s requests or that any such moderation was done subject to non-independent standards.
Ditto for Fauci’s NIAID and the State Department (both of which were part of nonsense conspiracy theories). The Court says they didn’t cross the line either.
So I think the test the 5th Circuit used is correct (and matches other circuits). I find its application of the test to the White House kinda questionable, but it actually doesn’t bother me that much. With the FBI, the justification seems really weak, but frankly, the FBI should not be involved in any content moderation issues anyway, so… not a huge deal. The CDC part is the only part that seems super ridiculous as opposed to just borderline.
But saying CISA, NIAID and the State Department didn’t cross the line is good to see.
And then, even for the parts the court said did cross the line, the 5th Circuit so incredibly waters down the injunction from the massive, overbroad list of 10 “prohibited activities,” that… I don’t mind it. The court immediately kicks out 9 out of the 10 prohibited activities:
The preliminary injunction here is both vague and broader than necessary to remedy the Plaintiffs’ injuries, as shown at this preliminary juncture. As an initial matter, it is axiomatic that an injunction is overbroad if it enjoins a defendant from engaging in legal conduct. Nine of the preliminary injunction’s ten prohibitions risk doing just that. Moreover, many of the provisions are duplicative of each other and thus unnecessary.
Prohibitions one, two, three, four, five, and seven prohibit the officials from engaging in, essentially, any action “for the purpose of urging, encouraging, pressuring, or inducing” content moderation. But “urging, encouraging, pressuring” or even “inducing” action does not violate the Constitution unless and until such conduct crosses the line into coercion or significant encouragement. Compare Walker, 576 U.S. at 208 (“[A]s a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position.”), Finley, 524 U.S. at 598 (Scalia, J., concurring in judgment) (“It is the very business of government to favor and disfavor points of view . . . .”), and Vullo, 49 F.4th at 717 (holding statements “encouraging” companies to evaluate risk of doing business with the plaintiff did not violate the Constitution where the statements did not “intimate that some form of punishment or adverse regulatory action would follow the failure to accede to the request”), with Blum, 457 U.S. at 1004, and O’Handley, 62 F.4th at 1158 (“In deciding whether the government may urge a private party to remove (or refrain from engaging in) protected speech, we have drawn a sharp distinction between attempts to convince and attempts to coerce.”). These provisions also tend to overlap with each other, barring various actions that may cross the line into coercion. There is no need to try to spell out every activity that the government could possibly engage in that may run afoul of the Plaintiffs’ First Amendment rights as long the unlawful conduct is prohibited.
The eighth, ninth, and tenth provisions likewise may be unnecessary to ensure Plaintiffs’ relief. A government actor generally does not violate the First Amendment by simply “following up with social-media companies” about content-moderation, “requesting content reports from social-media companies” concerning their content-moderation, or asking social media companies to “Be on The Lookout” for certain posts.23 Plaintiffs have not carried their burden to show that these activities must be enjoined to afford Plaintiffs full relief.
The 5th Circuit, thankfully, calls for an extra special smackdown Judge Doughty’s ridiculous prohibition on any officials collaborating with the researchers at Stanford and the University of Washington who study disinformation, noting that this prohibition itself likely violates the 1st Amendment:
Finally, the fifth prohibition—which bars the officials from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group” to engage in the same activities the officials are proscribed from doing on their own— may implicate private, third-party actors that are not parties in this case and that may be entitled to their own First Amendment protections. Because the provision fails to identify the specific parties that are subject to the prohibitions, see Scott, 826 F.3d at 209, 213, and “exceeds the scope of the parties’ presentation,” OCA-Greater Houston v. Texas, 867 F.3d 604, 616 (5th Cir. 2017), Plaintiffs have not shown that the inclusion of these third parties is necessary to remedy their injury. So, this provision cannot stand at this juncture
That leaves just a single prohibition. Prohibition six, which barred “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” But, the court rightly notes that even that one remaining prohibition clearly goes too far and would suppress protected speech, and thus cuts it back even further:
That leaves provision six, which bars the officials from “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” But, those terms could also capture otherwise legal speech. So, the injunction’s language must be further tailored to exclusively target illegal conduct and provide the officials with additional guidance or instruction on what behavior is prohibited.
So, the 5th Circuit changes that one prohibition to be significantly limited. The new version reads:
Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.
And that’s… good? I mean, it’s really good. It’s basically restating exactly what all the courts have been saying all along: the government can’t coerce companies regarding their content moderation practices.
The court also makes it clear that CISA, NIAID, and the State Department are excluded from this injunction, though I’d argue that the 1st Amendment already precludes the behavior in that injunction anyway, so they already can’t do those things (and there remains no evidence that they did).
So to summarize all of this, I’d argue that the 5th Circuit got this mostly right, and corrected most of the long list of terrible things that Judge Doughty put in his original opinion and injunction. The only aspect that’s a little wonky is that it feels like the 5th Circuit applied the test for coercion in a weird way with regards to the White House, the FBI, and the CDC, often by taking things dramatically out of context.
But the “harm” of that somewhat wonky application of the test is basically non-existent, because the court also wiped out all of the problematic prohibitions in the original injunction, leaving only one, which it then modified to basically restate the crux of the 1st Amendment: the government should not coerce companies in their moderation practices. Which is something that I agree with, and which hopefully will teach the Biden administration to stop inching up towards the line of threats and coercion.
That said, this also seems to wholly contradict the very same 5th Circuit’s decision in the NetChoice v. Paxton case, but that’s the subject of my next post. As for this case, I guess it’s possible that either side could seek Supreme Court review. It would be stupid for the DOJ to do so, as this ruling gives them almost everything they really wanted, and the probability that the current Supreme Court could fuck this all up seems… decently high. That said, the plaintiffs might want to ask the Supreme Court to review for just this reason (though, of course, that only reinforces the idea that the headlines that claimed this ruling was a “loss” for the Biden admin are incredibly misleading).
It’s no secret that Elon Musk is desperate for advertisers to return to the platform. He just recently admitted that the company is still cashflow negative and that around 50% of advertisers have left (other reports say the number is bigger). This is despite his earlier claims that the company would break even on a cashflow basis in Q2 (not to mention, despite not paying a bunch of bills).
Basically ever since he took over and lots of advertisers bailed out, directly in response to Elon’s self-created liability, the company has made a few desperate moves to lure them back. Back in February, we wrote about the company promising $250,000 in free ads if companies would spend $250,000 in ads. It didn’t seem to work.
Hell, it’s pretty obvious that the reason Elon hired Linda Yaccarino to play the role of Chief Marketing Officer (but with a shiny-if-misleading CEO title) was her strong relationships with big advertisers.
But, as the Wall Street Journal is reporting, it appears that the “carrot” approach of deeply discounted advertising isn’t working well enough on its own. Ex-Twitter is now breaking out some sticks to try to pressure companies into advertising:
X also warned advertisers that beginning Aug. 7, brands’ accounts will lose their verification—a gold check mark that indicates their account truly represents their brand—if they haven’t spent at least $1,000 on ads in the previous 30 days or $6,000 on ads in the previous 180 days, according to the email.
So, look, we know already that Elon simply cannot wrap his mind around the purpose of Twitter verification. I mean, the Twitter Blue debacle is well understood by everyone but Musk. The whole thing was so dumb, and so disastrous to trust and brand safety on the platform that it drove away plenty of companies, leading the company to make a hasty change and bring back some form of the old verification in the form of “gold checkmarks” for “some” businesses.
It seemed transparently obvious that these gold checkmarks were going to companies that Twitter wanted to appease so they would continue advertising.
And, when looked at through that lens, you can totally understand why the company is frustrated that the companies they “gifted” gold checkmarks to aren’t returning the favor by advertising. Hence this little shakedown.
“Nice gold check mark you got there. You wouldn’t want anything to, uh, happen to it, y’know?”
But, really, this seems like the kind of move likely to drive away advertisers than retain them. It’s just yet another reason not to trust the platform or Elon, who will change the terms of whatever he agrees to to benefit himself in the end.
Of course, the WSJ article also notes that Twitter is, once again, drastically discounting ad buys:
It is offering 50% off any new bookings of those ads until July 31, among other discounts. “The goal of these discounts is to help our advertisers gain reach during crucial moments on Twitter such as the Women’s World Cup,” one of the emails read.
As a separate point, I’ll just note that, back in February, they were talking about 50% off ads for $250,000 spends. Now they’re trying to cajole and coax companies into spending… $1,000.
The landed gentry are only in charge until the king comes to town and chops off a few heads. At least that seems to be the case at Reddit, where CEO Steve Huffman pretended his complaints about current moderators — who were protesting his decision to effectively cut off API access to tons of useful tools by jacking up the price on it to unsupportable levels — was about making Reddit more “democratic.”
Except, that’s clearly not the case. For weeks now, Reddit has been ratcheting up the threats to various moderators of subreddits to try to force them to reopen.
The latest is that Reddit started contacting more mods of protesting subs (most have reopened, but many are still engaging in acts of protest) telling them they had 48 hours to tell the company their plans for reopening. Quickly after that, they issued an ultimatum: closed subreddits must reopen.
“This community remaining closed to its [millions of] members cannot continue” beyond the deadline, the admin (Reddit employee) account ModCodeofConduct wrote in a note to one of the biggest Reddit communities that’s still private.
After a mod replied, ModCodeofConduct went even further. “[Millions of] members have lost complete access to this community and that is not going to continue,” the account said. “Wanting to take time to consider future moderation plans is fine, but that must be done in at least a ‘restricted’ setting. This community will not remain private beyond the timeframe we’ve allowed for confirmation of plans here.”
In a conversation with moderators of a different subreddit, ModCodeofConduct told them that “continued violation of [Rule 4 of the Moderator Code of Conduct] over the next 31 hours will result in further action.” Rule 4 of that document is “Be Active and Engaged.” That subreddit has since reopened, though in an “archive” mode where new posts will be automatically removed.
The thing is, in many of these subreddits, the users voted in favor of going private. So, for all of Huffman’s nonsense talk about “democracy” and getting rid of what he preposterously called “the landed gentry,” the reality is the opposite. It’s Huffman’s way, or you’re out.
Indeed, there are already reports of Reddit admins being willing to help stage coups to oust protesting mods and install others in their place. Meanwhile, there’s talk of renewed protests on July 1st (the day the API changes go into effect), though who knows how well that will go.
Meanwhile, I’ve seen lots of reports noting that Redidt’s traffic, after an initial dip, has returned to normal, but it’s possible that some of that is just people gawking at the spectacle of the protesting subs that were covered in John Oliver images.
But, perhaps a more concerning issue regarding Huffman’s plans to take the company public in the near future, is that the same reports saying traffic has returned to normal, are noting that traffic to Reddit’s advertising portal… has dropped noticeably.
However, Similarweb told Gizmodo traffic to the ads.reddit.com portal, where advertisers can buy ads and measure their impact, has dipped. Before the first blackout began, the ads site averaged about 14,900 visits per day. Beginning on June 13, though, the ads site averaged about 11,800 visits per day, a 20% decrease.
For June 20 and 21, the most recent days for which Similarweb has estimates, the ads site got in the range of 7,500 to 9,000 visits, Carr explained, meaning that ad-buying traffic has continued to drop.
Next thing you know, we’ll be hearing that Huffman has hired Linda Yaccarino to be the new CEO….
So, over the last few weeks, we’ve written a bunch of articles about DoNotPay, highlighting some pretty significant questions about the company, its CEO, and the services it offers. To date, the CEO of the company, Josh Browder, has not responded particularly well to the concerns people are raising, and is acting like someone trying to hide things, rather than address the underlying issues.
Last night, Kathryn Tewson, who has been at the forefront of uncovering all sorts of sketchy behavior by Browder and DoNotPay, published yet another expose, highlighting how some of his earliest claims about how many people were using the tool to contest parking tickets in New York City and London didn’t seem like they could be accurate. It’s a wild ride.
And… it’s also a wild ride that we probably had a story on over five years ago… but did not publish. Back in the fall of 2017, Lawyerist’s founder Sam Glover reached out to me, saying he had gotten excited about the concept of DoNotPay, but when he dug into the details, nothing seemed to add up. He thought there might be a Techdirt story in all of it. Eventually, he put me in touch with David Colarusso, a lawyer and data scientist who was also investigating DoNotPay, initially for Lawyerist, and had reached out to Browder to try to better understand the details. Browder responded with some thinly veiled legal threats if Colarusso dug further (after first promising to supply him the necessary data to confirm the data), which definitely was a red flag. Glover also was unsure if the story was right for Lawyerist, and suggested it was a better story for Techdirt.
Colarusso worried that the implied legal threats might bias him in any article he had written, so first offered to hand the story off to us entirely to build on his research, but eventually felt that it was wrong to be bullied and sent over the draft of a story with a bunch of initial notes to us regarding Browder’s response to Colarusso, including detailing where Browder challenged some of Colarusso’s claims.
We went back and forth over this for a little while and, eventually, chose not to publish it. While we did feel the story was interesting, and we have a history of calling out techdudes making bullshit claims, we eventually felt there just wasn’t enough information to confirm things one way or the other, in large part due to Browder’s blustery responses to Colarusso. Even though the article admits that, and notes that Browder claimed to have the data to support the claims, but was refusing to share it with Colarusso, it felt like we needed a little more to be comfortable publishing it.
Also, at the time, DoNotPay appeared to be a side project of a college student, not a high profile startup funded by some of the biggest VC and angel investors in the world. That has now changed. And, combined with the many other highly questionable claims from Browder recently, and the additional data turned up by Tewson, Colarusso reached out to wonder if it made sense to publish the story now, with an intro like this one, to highlight how these issues were always present with the operation (things you’d think a giant VC firm like Andreessen Horowitz would have done due diligence on?!?).
In retrospect, it might have made sense to publish the story back then, though, again at the time it wasn’t part of a larger tapestry of questionable behavior, nor was it a big venture-backed startup, rather it was a noteworthy (somewhat hyped up) side project of a college student.
Anyway, we should note that after Colarusso wrote this unpublished article, he did become the lab director of the Legal Innovation and Technology lab at Suffolk University Law School, which, in some ways, is in an adjacent space to DoNotPay in that it helps digitize court forms to improve access to courts. This happened after this issue, and really just shows Colarusso’s general interest in this arena, but we wanted to post that disclaimer in the name of transparency.
So, here is the article that Colarusso wrote for us over five years ago, complete with the original notes interspersed in the piece where he highlights some issues and concerns, and leading off with the email he sent with it describing some of his thoughts. The only edits to the original were (1) to correct small typos (2) to insert some paragraph breaks for readability and (3) to remove someone’s name who was involved in the original discussion over what to do with this piece (4) to remove a short paragraph that Colarusso had included in the intro note regarding comments Browder made to Colarusso that possibly revealed sensitive information about Browder that we felt it was improper to publish. Finally, some of the links in the original piece no longer work. Some can be found via the Wayback machine, but for now we’ve chosen not to include those links. In retrospect, things might have been different if we had, in fact, published the article at the time.
Below you’ll find the draft article I put together on DoNotPay, plus a few notes to fill in recent developments.
[….]
He’s already admitted to some minor puffery with his original numbers, telling me that his initial 86,000 appeals claim is off by 10-20%. So my guess for worst case scenario here is that he overestimated his original numbers and built everything on that, and he can’t admit that he made a mistake. The thing is, even with half the numbers reported he would have likely received similar coverage.
Anywho, here’s what I have. Why don’t you give it a look and we can decide how to move forward, with a co-authored piece or you going off in your own direction. Having sat with this for a week, I have to admit I don’t like the idea of him bullying me off the story. That being said, I look forward to hearing your thoughts. Note: our CMS encloses footnotes in double parentheticals, and I’ve added notes to you in brackets.
Last month DoNotPay, the free “robot lawyer,” announced that you could sue Equifax by talking with it’s chatbot. The bot’s creator, Joshua Browder hopes his “product will replace lawyers, and, with enough success, bankrupt Equifax.” Browder’s bluster has earned him and DoNotPay a good deal of press. The story of DoNotPay is compelling, an 18-year-old student in the UK builds a tool to fight parking tickets, saving Britons £2 million in just four months. Browder expands the bot to fight tickets in New York City, overturning 160,000 tickets. Then he adds help for the newly evicted and refugees. This year’s big news? DoNotPay now helps with 1,000 areas of law, plus you can build your own. Behind the bluster, however, there is a hint of something extraordinary, the promise that someone has figured out how to use technology to help close the justice gap.
Like many in legal tech, I find Browder’s story inspiring. I teach law students how to build their own interactive flowcharts (chatbots), and DoNotPay has been a go-to example of such a product in the wild. After the sue Equifax feature launch, however, I was struck by what appeared to be, at best, a mismatch between hype and reality and, at worst, a breach of duty. I looked back on Browder’s earlier claims, and I realized I did not know the numbers well enough to put them in perspective. Implicit in the reporting was the idea that Browder was somehow leveraging technology to do something extraordinary. I wanted to know how extraordinary. Unfortunately, when asked to provide data to validate and place his original claims in perspective, Browder demurred.
DoNotPay’s first big splash came in late 2015. In December Browder was claiming to have saved Britons £2 million in just four months, citing 86,000 appeals and 30,000 overturned fines since its launch in late August. According to Browder, during this period DoNotPay was helping challenge parking tickets across all of the U.K. though in our conversation he was unsure if Scottish or Irish users would have been able to use the system. When asked about the scale of his claims, Browder explained that such numbers are just a drop in the bucket for the total number of U.K. tickets. When asked about the source of the 86,000 count, Browder explained it was not a count of appeals filed but rather a measure of completed interactions with the bot. That is, during the period from August to December the bot generated roughly 86,000 documents which could have been submitted as part of a challenge. The estimate of 30,000 overturned tickets was based on a user poll Browder conducted where he found the win percentage of users and applied this to the 86,000 number. When asked about the relationship between completed documents and actual challenges he estimated that 10 to 20% were not actually submitted. This nuance was not accounted for in his original claims and is the result of subsequent analysis on the part of Browder.
It is important to note that these appeals documents were appeals in the colloquial sense. That is, they represented initial challenges, not the formal appeals reported in most official statistics. Appealing a ticket is a multistage process. ((When referencing parking tickets, unless otherwise noted, it should be assumed that I am discussing penalty charge notices. See infra FN6.)) A win according to Browder was any challenge that fails to end with a person paying a ticket. This includes tickets that were canceled before the formal appeals process. Consequently, one cannot directly compare Browder’s numbers to data such as this from the London Councils. In Parking appeals statistics 2015-16, the councils reference 17,192 successful appeals for fiscal year 2016. Assuming a steady rate of tickets across the year, that equates to roughly 5,700 tickets for the four months covered by Browder’s claim.
When asked, Browder estimated that of the 86,000 documents cited 14.6% were for tickets in London. If the win rate was consistent across jurisdictions, we can assume this means that 14.6% of the 30,000 wins (roughly 4,400) occurred in London as well. Remember, however, we cannot compare these 5,700 and 4,400 counts. Browder is NOT claiming that DoNotPay handled around 80% of the winning appeals from London. The councils’ numbers do not include informal challenges that resolved pre appeal and so measure something different from DoNotPay’s wins which are larger than its number of successful formal appeals. The question is how much larger. ((It was the ratio of DoNotPay wins to successful official appeals that was first brought to my attention as something worthy of further examination. Jason Velez, another participant in the legal chatbot space, had found the London Councils’ parking statistics and was not sure what to make of them. Consequently, he shared them with Lawyerist.))
In 2010 and 2011, the rate of challenges across the whole of the U.K. was roughly 25%. ((This number comes from both the Civil parking enforcement statistics 2009/10 and a report from the car insurer Switcover looking at 2010 and 2011 data.)). We know the number of tickets issued in London during FY2016 was roughly 3.6 million. The adjusted four month equivalent comes in at roughly 1.2 million. Consequently, we can assume that about 300,000 tickets (25%) were challenged. 14.6% of 86,000 is about 12,600. This would be roughly 4% of all challenges. Is that a drop in the bucket? I do not know. Is it reasonable that only 14.6% of DoNotPay’s appeals came from London? I do not know. However, if this number were larger the same would be true for the percentage of challenges handled by DoNotPay, adding to the size of our drop. In 2010, London was responsible for about 56% of all on-street parking tickets across England. ((See Civil parking enforcement statistics 2009/10 and XLS tables (citing the number of on-street penalty charge notices for London as 4,023,000 and the number for all of England as 7,140,000).)) Given the relative size of Scotland, Ireland, and Wales, coupled with the question around DoNotPay’s operation in Scotland and Ireland, it seems safe to say the majority of DoNotPay’s users resided in England, and if London made up a similar proportion of England’s tickets in late 2015, it becomes reasonable to ask why there was such a relatively small percentage of DoNotPay users in London esp. given this is where Browder was based. ((England’s population accounts for more than 80% of the U.K.’s. Browder was clear to point out that his definition of London would likely differ from others as he “set a radius from central London and included every postcode within that radius, including places like Heathrow.”))
When asked why this was the case, Browder speculated that many of DoNotPay’s users might have been outside of London due to the patterns of press coverage (national and university related), and that perhaps they might involve tickets not in the government statistics either because they involved university tickets or private parking tickets (i.e., parking charge notices as opposed to council-imposed tickets, known as penalty charge notices). ((For a description of the differences between parking charge notices and penalty charge notices, as well as fixed penalty notices, see Appealing against a parking ticket. Note: Browder did not respond to my question regarding DoNotPay’s ability to fight fixed penalty notices which was prompted by his suggestion that DoNotPay numbers should include a consideration of anything other than penalty charge notices.)) In December 2015, at the time of the claims discussed here, it was reported that DoNotPay did not handle private parking tickets. See e.g., this Daily Mail article, from which the claims discussed here were drawn, stating that “[t]he appeals were all against council-imposed fines – but [Browder] plans to expand his website to cover private car parks ‘in the near future’.” When asked to explain this discrepancy, Browder noted that despite DoNotPay being focused on council-imposed tickets his users likely did not understand the difference between private and public enforcement. Consequently, he claims that users tried and succeeded to use DoNotPay to challenge private tickets given that many of the defenses applied to both.
It is worth noting that the analysis found here operates largely under the assumption DoNotPay’s services were that reported at the time of the 86,000 tickets claim (i.e., DoNotPay handled only penalty charge notices). This is justified in part by Browder’s own analysis. Browder claims to have written a program to check the status of a given ticket. This program works by submitting a ticket number to the government and payment systems and noting the response. For example, paid ticket numbers return different responses than unpaid. By noting the response for a given ticket he claims to be able to ascertain if a challenge was submitted. This program is what Browder claimed to use in determining what portion of the 86,000 tickets were actually submitted, and since it would only work with government issued tickets, we know that the earlier statement about 10 to 20% of challenges not being submitted is equivalent to 80 or 90% of them being penalty charge notices. That is, at least 80% of the 86,000 tickets were government issued tickets.
[this paragraph above is now disputed by Browder. So it can’t stand as is. Originally, I was led to believe his status checking program worked only with government-issued tickets, as described above. However, when I presented Browder with this interpretation to double check he claimed that it also worked with private parties (e.g., those issuing Parking Charge Notices). Since such a program would have to make special accommodations for private tickets, querying a different system, I pointed out that he should have access to the specific number of private vs public tickets. Browder responded to a request for these numbers by stating that I was drastically underestimating the number of private tickets (presumably disputing the logic presented above). He then claimed either that I was conducting my research on the dime of my full-time employer, namely the taxpayers of Massachusetts, or alternatively doing my work after hours such that I was sleep deprived and so doing my employer a disservice. Both of these were based on the timing of some of our emails. If the former, he demanded to know why taxpayer dollars were being used to harass a minor. He did not provide the number of private tickets contained within the 86,000 appeals number, and this is when we cut off contact as this was not the first time he had made a veiled threat and it was clear he was not acting in good faith. The first threat involved a peculiar reading of the disclaimer on my personal webpage, described below. Also, the private parking claim was an eleventh hour claim made only after many prior discussions in which it never came up. It actually came up after I had drafted much of this document and was looking to double check my facts. So I never had time to figure out how it affected the rest of the piece. That being said, my preliminary research put the number of private parking tickets at about half the number of public tickets though I didn’t find any really solid numbers.]
Unlike official appeals, I was unable to easily find aggregated numbers for parking challenges across all of the London Councils. For the small fraction of data I could easily find, the average weighted increase in challenges for FY2016 over FY2015 was less than three percent. ((These included Ealing (1% increase), Hackney 2015/16 and 2014/15 (1% decrease), Newham 2015/16 and 2013/14 (2% increase), Tower Hamlets (5% increase), and Westminster 2015/16 (1% decrease). The overall weighted average, accounting for the relative volumes of tickets, came out to be just shy of 3%, with the majority of tickets arising from either Westminster or Hackney. By way of methodology, I performed a single rudimentary Google search for each of the London Councils’ annual parking reports, varying each search by the council’s name. I took down data when: (1) I could find a report; and (2) that report contained sufficient information to determine the rate of challenges. Such a small sample is almost certainly not representative, but it need not be for the purpose at hand.)) That is, there was no dramatic uptick in challenges across the fraction of councils for which I found data. This is consistent with the “just a drop in the bucket” interpretation or the idea that DoNotPay simply replaced other methods of challenge. That is, the idea that DoNotPay users were just people who would have otherwise used the government system but for learning of DoNotPay. A news article referencing DoNotPay outranked the official gov.uk tool for challenging tickets in at least one of the Google searches I conducted about how to pay a ticket in London. So this seems possible.
This, however, is not the same as saving Britons £2 million. Admittedly, “shifting the source of challenges,” lacks a certain appeal as a headline. Depending on the number of DoNotPay users in the sample councils, however, this data is also consistent with DoNotPay driving an increase in challenges. The problem is that on its own it fails to be definitive either way. Browder called the replacement interpretation a “nasty opinion,” explaining that without access to all of the authorities’ numbers the trend of challenges was at best speculative. ((This came about as a reaction to my characterization that given the data I had available, DoNotPay didn’t seem to move the needle. In fairness, I should have added the qualifier much.)) I agree that the fraction of authority data cited here is insufficient to confidently make claims about challenge trends and effect size. That after all, is my point. If we had fine-grain data for DoNotPay challenges we could drill down into individual council numbers. For his part, Browder claimed to have enough information to know the replacement scenario was not true, and offered to put me in touch with users who could provide testimonials. He did not, however, offer to provide the breakdown of DoNotPay users for specific councils.
The rate of challenges went down in two of the five councils for which I found information, including the one with the highest volume of tickets. Westminster Council ascribed their drop, which started a year earlier in 2015/14, to improved procedures on their part, but it is also consistent with users finding DoNotPay first and then giving up after interacting with a frustrating user interface. If this were the case, DoNotPay would have actually cost people money. To be clear, I am being intentionally provocative. We have no way of knowing what actually happened absent more data because we do not know where DoNotPay users were making their challenges. I mean only to underline the point that it is possible both for Browder’s public numbers to be true and for us to take away the wrong lessons in the absence of more data. Are DoNotPay’s challenges a drop in the bucket, only shifting the source of challenges, the massive mobilization of previously unengaged drivers, or a mild distraction obfuscating government tools for challenging tickets? Given the currently available public data, one can not say because Browder has not provided sufficient detail to test competing theories. This is the problem.
Browder claims to have the data needed to help answer these questions. He says that he has a record of the ticket number for every appeals document created during the period in question, and the fact that he was able to answer my question about the percentage of appeals from London in only a few hours suggests that he can easily access information about the locations and dates of those appeals. Browder repeatedly expressed frustration over having to continually defend his claims. I suggested that if he was to provide a list of the ticket numbers, dates, and locations we would work to audit his claims and publish our results. Unique ticket numbers would remove ambiguity from his claims allowing for an easy assessment of how many tickets were public, private, or other. Coupled with location and date, they would provide a means for direct validation against council records. In our correspondence, Browder would repeatedly reply to a question by effectively explaining that this was all very complicated and that first one needed to account for this or that nuance. The sharing of detailed challenge data would cut through most such complications.
At the suggestion of sharing his data, Browder first expressed concern over his users’ confidential information. I suggested we could address this concern through a formal agreement granting access for the limited purpose of validating his claims. At this point, Browder expressed the belief that although the legal issues around sharing his data could be solved there was a larger issue of user trust and that he felt sharing his user data would be a violation of this trust. Upon further communication, he explained that he had in fact shared his fine-grained data with trusted parties but that he did not trust Lawyerist enough to share such data.
I then asked if he could put us in touch with one of these trusted parties as they may have answered the questions we still had. At first, Browder failed to answer this request directly. Instead he stated that he was working with the BBC and that they would have a piece based on his data coming out shortly. I asked for his contact there. This sparked an exchange of several emails in which Browder initially ignored the request, opting instead to question the ethics and integrity of those working at Lawyerist. ((Browder began asking questions about Lawyerist’s expected revenue for this piece and language in the disclaimer of my personal website where I state that I don’t take money to write about or feature material on either my personal website or blog. Apparently, the fact that I link to writing for which I am paid on my website caused him to think this line was misleading. He then explained that he would consider sharing contact info for those who had seen his data only after his “concerns surrounding ethics and integrity [were] satisfied.” This was followed by the suggestion that I was being paid specifically to write something with a “defamatory angle.” [eventually he put me in contact with a fellow Stanford student he believed to be an unbiased party. He, however, was unable to provide any helpful information and it was my interactions with him that led to the conversations with Browder that prompted us to cut off ties. Again, if you’d like a copy of the emails, I can provide them.]))
I am writing this post in the hope that either: (1) one of Browder’s trusted parties will step forward with a detailed analysis of his data, not just a collection of testimonials; or (2) some institution Browder trusts will step forward and offer their services to conduct a detailed audit and that Browder will avail himself of such an offer. For what it is worth, I do not believe Mr. Browder was engaged in some premeditated act of deception, and my hope is that his reticence to share the data necessary to fully assess his claims is simply a failure to recognize the burden of proof for an extraordinary claim lies with the one promoting it.
The details matter when talking about technology tools aimed at addressing access to justice because practitioners must understand the boundary of reasonable expectations for such tools. Only armed with such understanding can they be maximally used in the service of justice. I want to live in a world where a website built by an 18-year-old can save people millions in a matter of months while shrinking the access to justice gap. ((I teach law students how to build chatbots, and I’m the author of an open source markup language designed for use by attorneys. If we live in such a world, it means Browder’s success can be emulated, and that is something I want to believe, but I know enough to question strongly those things I want to be true.)) But wanting does not make it so. “Extraordinary claims require extraordinary evidence.”