Tim Hortons Doles Out Some Coffee Pocket Change In Response To Location Data Scandal

Privacy

from the i-see-u dept

We’ve noted for years how U.S. consumer location data is routinely abused by a long list of bad actors, including wireless carriers, broadband providers, app makers, adtech companies, data brokers, police, people pretending to be police, governments, and more.

It’s also, not too surprisingly, a problem in Canada.

Restaurant chain Tim Hortons was recently found to have been collecting “vast amounts of sensitive location data” in violation of Canadian privacy laws. More specifically, one report found the app tracked a user’s location over 2,700 times in less than half a year any time they left home, visited a competitors, or hit a local sports venue, and the restaurant chain mislead users into thinking the tracking would only occur when the app was in use.

Worry not though, as part of a new settlement with the company, it says it will be giving impacted customers enough money for a “hot beverage and a free baked good” with a total retail value of $8.58:

As is usually the case, the payout (accompanied with no formal admission of fault) is likely a tiny fraction of the money gleaned off of collecting user location data and then sending it to any nitwit with a nickel. Here in the States, the overturning of Roe has finally resulted in folks taking concern about the potential abuse of this data more seriously, although meaningful reform still remains difficult to come by.

Filed Under: apps, canada, location data, security, smartphone, surveillance, wireless
Companies: tim hortons

Canadian Government Really Wants People To Ignore The Text Of Its Streaming Regulation Bill

Policy

from the fix-the-language dept

Canada’s Bill C-11, which will hand the country’s broadcast regulator new powers to set rules for all kinds of online video and audio content, was rushed through an undemocratic sham of a “review” and then passed in the House of Commons by the reigning Liberal government. Now, it’s sitting in the Senate where the last hope of preventing it rests on Senators sticking to their assertion that they won’t be pressured by a government that is clearly intent on making it law without addressing any of the myriad serious concerns about what it would do. In the mean time, the office of the Heritage Minister (the driving force behind C-11) seems intent on continuing with the pattern it has established ever since the bill was first introduced as C-10 in 2020: ignoring or dismissing all critics, and insisting that the actual text of the bill doesn’t matter.

Instead, the government wants everyone to focus on their “policy intentions” — the things they say they hope the bill will achieve, and their repeated promises that it won’t do anything else. Nobody is supposed to care that these “intentions” don’t line up with what the bill actually contains, or that there are countless signals that these promises are false. Following a bit of a Twitter fight with an official from the Heritage Office, the University of Ottawa’s Michael Geist laid out a damning list of these contradictions:

My tweet thread response notes that the disconnect between the government’s professed intent and the actual text in Bill C-11 has been a persistent issue:

• government claims intent isn’t to regulate user content (contradicted by the CRTC chair),
• government claims intent isn’t to include algorithmic manipulation (contradicted by the CRTC chair)
• government claims intent is to help digital creators (contradicted by the creators themselves),
• government claims intent is to avoid content regulation (undermined by the CRTC engaging in content regulation in the Radio Canada case)
• government claims intent is no Cancon quotas (undermined by the possibility of display quotas)
• government claims intent is to exclude video games and other similar content (currently included in the bill and will require policy direction the government won’t release to exclude)
• government claims intent is to leave regulations to an independent CRTC (yet it regularly seems to have pre-determined what the outcome will be)
• government claims intent is to ensure Bill C-11 is consistent with its trade obligations (the U.S. has now raised concerns with the bill and potential CUSMA violations)
• government claims intent is to help independent production sector (experts now concerned the bill will undermine decades-old policy that support the sector)

As Geist notes, all of these government promises could have been solidified in the actual bill with some clarifying amendments, many of which were among the more than 100 that were proposed — but instead the House of Commons rushed the clause-by-clause review of the bill and the voting on amendments at an absurd speed, imposing a completely unnecessary deadline that resulted in a near-total lack of debate and MPs voting on some amendments before the text had even been publicly released.

And so we find ourselves facing a bill that could usher in sweeping changes to the internet in Canada, impacting not just the big streaming platforms like Netflix that the government constantly insists are the real target, but just about every online media platform and the creators who use them. Who wants this bill? Certainly not Canadian content creators, and seemingly nobody except the government that is so intent on ramming it down the country’s throat.

But since the ruling Liberal party reached a deal that ensures them the near-unquestioning support of the left-wing NDP party in parliament, they seem intent on doing whatever they want when it comes to C-11, no matter how brazenly undemocratic. So all hope rests on the Senate, which refused to rush the bill through as C-10 last year and is famously labelled in Canada as the place of “sober second thought”, to block the bill or at least fix its most egregious problems. The advocacy group OpenMedia, which maintains an excellent FAQ about the problems with the bill, is calling on Canadians to let Senators know how important it is.

Filed Under: c-11, canada, content, streaming

Canada’s Federal Police Have Been Using Powerful Malware To Snoop On People’s Communications

(Mis)Uses of Technology

from the oh,-Canada-smdh dept

The Royal Canadian Mounted Police (RCMP) — Canada’s federal Dudley Do-Whatevers — is again belatedly admitting it has access to powerful surveillance tech its supposed oversight seems unaware the RCMP possessed.

This is par for the RCMP course. The agency tends to admit it has surveillance tech only after extended deployment periods. And, like its American counterpart (the FBI), it would rather undercut its own directives (make arrests, engage in prosecutions) than allow criminal defendants to examine the (often cutting edge) evidence used against them. This includes allowing known organized crime figures to walk away from criminal charges — something that seems incredibly counterproductive. This practice of dropping criminal prosecutions extends to cases where it just seems a bit too inconvenient to obtain a warrant.

These disclosures by the RCMP — often in response to oversight inquiries — tend to come months or years after the fact. And that is the case here, as reported by Maura Forrest for Politico. Time passes, the RCMP deploys new surveillance tech, and very eventually the public learns about it.

In a “remarkable” disclosure, Canada’s national police force has described for the first time how it uses spyware to infiltrate mobile devices and collect data, including by remotely turning on the camera and microphone of a suspect’s phone or laptop.

The Royal Canadian Mounted Police says it only uses such tools in the most serious cases, when less intrusive techniques are unsuccessful. But until now, the force has not been open about its ability to employ malware to hack phones and other devices, despite using the tools for several years. Between 2018 and 2020, the RCMP said it deployed this technology in 10 investigations.

“For the first time…” something that follows four years of deployment, only three of which are detailed in this “disclosure.” Sure, the fact that it has been limited to only ten cases in the three years suggests cautious use of powerful phone spyware, but the fact that this has never been discussed in court makes it clear defendants aren’t being told how they’ve been tracked down or rung up. And it strongly suggests the RCMP is engaged in parallel construction to launder the source of its evidence to prevent open discussion in court and limit the number of cases it would rather toss than engage in honest representations of its evidence-gathering methods.

The disclosure is further limited by the RCMP’s refusal to discuss which vendors it’s buying exploits from. There are only a handful of companies selling exploits that can compromise nearly any phone and every single one of those is currently in deep shit. Some are just facing unending negative news cycles. Some are facing sanctions. A few are facing both.

No law enforcement agency would be in any hurry to publicly announce it’s gotten in bed with shady malware merchants. But the only thing that comes from unnecessary opacity is less trust from the public and increased suspicion the government is doing things with the public’s money that the public would not approve of.

What the RCMP is using sounds suspiciously like Israeli malware manufacturer NSO Group’s flagship product: Pegasus. In most cases, it’s a zero-click exploit that cracks phones completely open and allows lawn enforcement offices (or batshit ex-husbands) to be a silent partner in all communications, including phone calls.

The team, which exists to intercept communication that can’t be obtained using traditional wiretaps, uses “on-device investigative tools.” The RCMP defines those as computer programs “installed on a targeted computing device that enables the collection of electronic evidence” — spyware, in other words.

The RCMP can use spyware to collect a broad range of data, including text messages, email, photos, videos, audio files, calendar entries and financial records. The police can also gather “audio recordings of private communications and other sounds within range of the targeted device” and “photographic images of persons, places and activities viewable by the camera(s) built into the targeted device,” the document says.

The RCMP offers several reasons for using malware over normal intercept methods. First off, regular wiretaps are no longer as effective as they used to be. Communications are rarely handled through landlines or regular cell tower-supported calls. Interception alternatives are necessary.

The RCMP also blames device and messaging encryption, which makes interception impossible. That’s an extremely narrow and short-sighted view of the problem facing law enforcement, but it’s a common complaint from federal agencies. (Not so much from local law enforcement, which suggests the problem is being overstated at the federal level to push for encryption bans/backdoor legislation.)

The RCMP also stresses that this is completely lawful, and approved by Canadian judges. And, while it’s true judges may have signed off on wiretap applications, it’s highly unlikely they were informed of the malware’s capabilities, which go far beyond intercepting communications. The sort of “on-device investigative tools” the RCMP appears to be using are also capable of activating mics and cameras, as well as providing officers and investigators with access to the entire contents of the target device — something that goes far beyond simply intercepting relevant communications.

And the RCMP appears to know what’s its doing isn’t exactly whatever the Canadian slang equivalent of “kosher” is. It began deploying this malware from its Covert Access and Intercept Team (CAIT) in 2018. It did not consult the federal privacy commissioner before forming this team in 2016 and, three years after CAIT’s first malware deployment, it is only now getting around to drafting the mandated privacy impact assessment that’s supposed to be handed over prior to engaging in new privacy-threatening activities.

For now, all we have is a vague admission the RCMP is deploying powerful malware provided by third party vendors. And we have the implicit admission the RCMP cares more about advancing its aims in ten cases that following the law, informing its oversight of its activities, or being honest with judges about the capabilities of its interception exploits. Hopefully, more details will arrive sooner than later.

Filed Under: canada, malware, rcmp, spyware, surveillance

Social Media Regulation, Link Taxes, Copyright Extension, And More: Canada’s Attack On The Internet Has Resumed

Copyright

from the oh-no,-canada dept

Last year, we wrote about the Canadian government’s efforts to push a bill regulating social media content like broadcast television and, soon after, their work on new “Online Harms” legislation that (among many provisions) would require platforms to report certain content to law enforcement and national intelligence services. These efforts and the government’s general approach to internet issues formed a pattern that led University of Ottawa law professor Michael Geist to label it the most anti-internet government in Canadian history. Both efforts stalled out in the face of the 2021 election, but now the Liberal party government, having won re-election and secured a cooperation agreement with the competing New Democratic Party, is resuming and indeed expanding its push for new internet legislation.

As Geist outlines in a Twitter thread, there’s a lot going on. The Online Streaming Act is back as Bill C-11, promoted by the government with some misleading cartoons and predictably unclear and contradictory messaging. The most prominent concern with last year’s version of the Act was that it would open the door to regulating individual social media content creators (think streamers, YouTubers, podcasters, and more) in the same framework as large broadcasting and streaming companies. The new text appears to close this door, with language that exempts such users, but the government’s claim that this means the Act would not apply to them at all is incorrect, as their content could be easily subject to regulation. This is because there are exceptions and exceptions to exceptions about what the Act covers, partly based on the question of whether content is “commercial” which, as we’ve discussed for years, is not so simple a delineation. However you slice it, individual Canadians who create content online are certainly at risk of facing obligations under the act.

Despite this, one Member of Parliament dismissed all such concerns as “YouTube talking points”, while another claimed that the government’s official policy direction to the broadcast regulator, which will not be made public until after the bill becomes law, would assuage any and all concerns on this matter and others. Obviously this isn’t very reassuring, and it contradicts the government’s claims that the text of the bill itself already precludes these problems. As was the case last year, inconsistency abounds.

There will be more to say about Bill C-11 as it works its way through committee, but for now we must move on, because it’s just one piece of the puzzle. As we recently covered, the government has also introduced a bill that would force tech platforms to pay news outlets for linking to their coverage. As we noted, this has been tried several times around the world for years, and it has never worked out — at best (or worst, depending on how you look at it), it enables a few very large publishers and broadcasters to extract a little bit of revenue while only increasing barriers to entry for smaller news outlets. And Canada’s version contains some of the most expansive language possible: it doesn’t specifically cover linking, snippets, or copies, but any action where “access to the news content, or any portion of it, is facilitated by any means”. As Geist explains:

This is certainly designed to cover linking but the broad language almost surely extends beyond linking to a specific article. Indeed, a link to the general home page of the Toronto Star, National Post, Globe and Mail or many other Canadian media sites can be said to facilitate access to news content, particularly since the provision adds that it can be just a “portion of it” and the facilitation can occur “by any means.”

Canadian Heritage Minister Pablo Rodriguez has made a point of contrasting his bill with the Australian code on the same issue. The Australian code treats three activities as making content available: reproduction of the content, providing an extract of the content (designed to target short blurbs of the stories), or links to the content. While that too is worthy of criticism (the Australian code has actually never been used), it does not cover mere facilitation of access.

…

Would the Supreme Court uphold a law whose effect could be to limit facilitation of access to news? Moreover, how does the entire Bill C-18 framework fit within the federal government’s jurisdiction? It isn’t broadcast, it isn’t telecommunications, and it isn’t copyright. If the government claims powers over anything involving the Internet then it believes there are no real limits on its jurisdiction.

And there will be lots more to say about that bill as well, but for now we must move on once again, because there are still more issues on the table. First, by delving deep into the government’s 2022 Budget, we learn that copyright terms in Canada are being extended to 70 years after the death of the author, up from 50. This isn’t solely an internet policy issue of course, and it was unfortunately inevitable, as it was a commitment in the Canada-US-Mexico Trade Agreement, but the details and the approach still matter. There are important decisions to be made regarding how this extension is implemented (the parliamentary committee charged with reviewing copyright law recommends that the additional 20 years of protection should require registration by rights holders), but sneaking the change into the budget (something the Prime Minister has pledged not to do with important legislation) seems designed to avoid any real scrutiny or discussion. Details will arrive in a forthcoming Budget Implementation Act, where they will similarly be buried amidst all kinds of unrelated issues.

And as if all that wasn’t enough, the Online Harms legislation is waiting in the wings as well. The government recently blew past a self-imposed deadline for introducing a new bill, but Heritage Minister Pablo Rodriguez says it is still in the works with the help of a newly formed panel of experts. Optimistically, we can hope this indicates the government is truly addressing some of the problems with the approach outlined in their technical paper last year, which would establish a massive new regulatory regime with astonishing powers and public complaints procedures that were ripe for abuse, while making no mention of protecting Canadians’ freedom of expression even as it required platforms to report them to law enforcement for their speech — but given this government’s track record, it’s hard to imagine whatever we get won’t still be riddled with dangerous problems and defended with misleading statements.

A lot could happen as each of these efforts develops, but the writing is on the wall: the government is going to try as hard as it can to regulate the hell out of the internet one way or another. With the current ruling party’s position essentially secure until 2025, it’s going to be an interesting (and dangerous) few years for the internet in Canada.

Filed Under: c-11, canada, copyright, copyright term extension, internet, link tax, streaming

Canadian Gov’t Latest To Decide US Tech Companies Should Be Punished For Sending Web Traffic To Canadian Websites

Policy

from the demanding-food-while-biting-the-hand-that-feeds-it dept

Here we go again. It’s a plan that almost never works but one that legislators and the special interest groups pushing for it continue to believe will shower them with untold riches from billion dollar tech companies that they blame for the destruction of local content creation.

I mean, they’re not entirely wrong… at least in terms of some uncomfortable facts. Local journalism is dying. Some platforms have pushed for adoption of their protocols (looking at you, Facebook) that ultimately result in little more than the platform’s consolidation of power.

But large tech companies aren’t killing local journalism. Lots of entities assumed printing news on paper once a day would be all people needed to stay abreast of current news. Once it became apparent people were moving on to other platforms and services, news agencies reacted. By that time, it was too late. Thousands of sources for news replaced “the only news game in town” as well as the assumption that news only needed to be delivered once a day.

Cable news networks broadcasting 24 hours a day started this landslide. The arrival of Google, Facebook, Twitter, and others only cemented the demise of news agencies that believed people would be satisfied with a product that contained an outsized percentage of ads and copy-pasted articles from national news services.

Local news agencies could have opted for a more focused product that engaged directly with readers. Instead, agencies outsourced reader engagement to Facebook and increased uptake of ads and third party content generated by national news sources.

In response, many governments and the vocal special interests they’ve opted to speak for have decided it’s not their fault for responding poorly to this massive shift to internet news sources. Rather than accept the fact they responded poorly, they’ve decided the road to financial solvency runs through the pockets of tech companies that were never in the news business to begin with.

Canadian legislators are the latest to engage in counterproductive lawmaking. It’s only a proposal at this point but, if passed, will subject Canadian concerns to an all-American brush off.

The Canadian government this week introduced a law bill that would force the likes of Google and Facebook to pay Canadian news publishers for using their articles online.

The Online News Act was created to address what Canadian Heritage Minister Pablo Rodriguez described as a crisis in the country’s media sector that has resulted in 451 outlets disappearing between 2008 and 2015. “We want to make sure that news outlets and journalists receive fair compensation for their work. We want to make sure that local independent news thrives in our country,” Rodriguez said in a press statement. 

Specifically, the proposed law seeks to ensure journalists and publishers get a fair cut of the revenues Big Tech banks from aggregating, distributing, sharing, or summarizing stories; the exact arrangements have yet to be hammered out.

Let me just “hammer this out” for you. Do you really want to know how this will work, Canadian legislators and news agencies? Let me demonstrate using this imaginary conversation that it also a fairly recognizable meme:

Canadian gov’t/news agencies: If you want to link to Canadian content, you’ll need to pay us.

US tech companies: Fine, we won’t link to Canadian content.

Gov’t and news agencies: no not like that

This chain of events has occurred repeatedly. And yet, entities like these think it will somehow be different this time.

Tech companies aren’t going to pay for indexing content. Even if you firmly believe companies are morally obligated to pay news sources for sending traffic their way, there’s nothing that actually justifies companies paying to send traffic to others. Even if you firmly believe Google, et al deliberately killed local journalism and desecrated its corpse, simple math shows soaking tech companies won’t return flailing news agencies to solvency, much less to historical levels of profitability predicated on being the only game in town.

The only thing preventing Google, Facebook, etc. from performing a cut-and-run is optics. If these companies determine it’s ultimately more profitable to leak revenue to appease regulators, they will do so. But that determination is largely dependent on how much governments enacting laws like this will demand.

A similar law passed in Australia (one said to directly inspire this Canadian effort) hasn’t resulted in a mass exodus… yet.

When Facebook heard of Australia’s plans, it blocked the ability of users to share any Australian news articles on its social network before agreeing to un-ban the content and enter a peace pact with the government.

Google, meanwhile, said it would pull its search engine out of Australia if forced to pay for news, though has since invested nearly $1 billion dollars to expand staffing and grow its cloud operations in the country.

Australia’s bill passed and went into effect on March 2, 2021, and neither Facebook nor Google have left Down Under.

This sounds like a battle regulators might win. But look closer at the details. Google remains active in Australia and has actually invested more money (in questionable news purveyors), possibly indicating nothing more that it believes adhering to these regulations will keep less well-funded companies from cutting into its market share. And Facebook deployed the nuclear option before regulators were forced to address Facebook’s concerns.

If Canada wants to roll the dice on obligated engagement, it can. But it should probably take a closer look at those demanding to be paid for failing to make the most of increased engagement before deciding the only way forward is to punish other companies for their success.

Filed Under: canada, journalism, link tax, online news act
Companies: facebook, google

Canadian Telecom Giant Rogers Mired In Bizarre Executive Power Feud That Began With A Butt Dial

Politics

from the do-not-pass-go,-do-not-collect-$200 dept

You might remember Canadian telecom giant Rogers. The company routinely found itself in the headlines for all the wrong reasons during the net neutrality wars, after it repeatedly tried to abuse its gatekeeper power to disadvantage other companies. Rogers is like most heavily consolidated regional telecom monopolies: a lack of competition or competent regulatory oversight both created and protects the company thanks to relentless lobbying. As a result, the company never is really challenged, and is consistently allowed to mindlessly merge and grow larger and larger and larger as harms are dismissed.

But there’s been trouble in paradise recently as the company attempts to shuffle around its executive leadership teams. It began with Rogers CEO Joe Natale learning he was going to be fired thanks to an internal coup attempt only revealed thanks to a… butt dial from his CFO. It only got thornier from there.

Ted Rogers died in 2008, and different family factions have been battling for control ever since. Ted’s son Roger was behind the covert effort to replace Natale with Rogers’ CFO Tony Staffieri. Loretta Rogers and her daughters Martha Rogers and Melinda Rogers-Hixon publicly backed Natale after the takeover attempt was revealed. The whole thing has since devolved into an absolute (but highly entertaining) mess:

“Two separate groups of directors have proclaimed themselves the rightful stewards of Rogers Communications, a sprawling C$30bn telecommunications and entertainment empire with interests in media, professional hockey, basketball, baseball, football and soccer.

On Friday, a Canadian court ruled that the faction led by Edward Rogers, son of the company?s late founder, had the power to legally replace directors without a shareholder meeting, granting the eldest son immense power over the country?s largest wireless carrier in a ruling viewed as a blow to shareholders? rights.”

It’s kind of a bizarre fusion of HBO’s Succession and Game of Thrones, albeit with fewer beheadings (so far). Toronto?s mayor, John Tory, was brought in to try and mitigate the ongoing feud, but that fell apart when it was revealed that he’d been getting $80,000 (US) in annual compensation from the board for the last seven years. Keep in mind this is all going on as the company attempts to finalize its $26 billion merger with Canadian telecom giant Shaw, a merger that will be probably approved because in North America, mindless rubber stamping of harmful consolidation is kind of what we do.

Filed Under: canada, power feud
Companies: rogers

Prosecutors Drop Criminal Charges Against Fake Terrorist Who Duped Canadian Gov't, NYT Podcasters

Legal Issues

from the borat-without-the-punchlines dept

For a couple of years, a prominent terrorist remained untouched by Canadian law enforcement. Abu Huzayfah claimed to have traveled to Syria in 2014 to join the Islamic State. A series of Instagram posts detailed his violent acts, as did a prominent New York Times Peabody Award-winning podcast, “Caliphate.”

But Abu Huzayfah, ISIS killer, never existed, something the Royal Canadian Mounted Police verified a year before the podcast began. Despite that, Ontario resident Shehroze Chaudhry — who fabricated tales of ISIS terrorist acts — remained a concern for law enforcement and Canadian government officials, who believed his alter ego was not only real, but roaming the streets of Toronto.

All of this coalesced into Chaudhry’s arrest for the crime of pretending to be a terrorist. Chaudry was charged with violating the “terrorism hoax” law, which is a real thing, even though it’s rarely used. Government prosecutors indicated they intended to argue Chaudhry’s online fakery caused real world damage, including the waste of law enforcement resources and the unquantifiable public fear that Ontario housed a dangerous terrorist.

Chaudry was facing a possible sentence of five years in prison, which seems harsh for online bullshit, but is far, far less than charges of actual terrorism would bring. But it appears everything has settled down a bit and the hoaxer won’t be going to jail for abusing the credulity of others, a list that includes Canadian government officials and New York Times podcasters.

A Canadian man admitted in court on Friday that he made up tales about serving as an Islamic State fighter and executioner in Syria. In exchange, Canadian authorities dropped criminal charges against him of perpetrating a hoax involving the threat of terrorism.

This is pretty much where this was always going to end up. Chaudhry’s acts were stupid, not criminal. That others were taken in by his tales shouldn’t raise it from “potentially embarrassing” to “federally criminal.” And given the fact that the RCMP had already interviewed him and decided not to pursue him as a terrorism suspect nearly a year before he became the central figure in a New York Times podcast indicates the government knew his online persona was a hoax for years before suddenly deciding it should be treated as a criminal act.

Chaudhry is now (mostly) free. He’s no longer facing criminal charges but he will be treated like a criminal for at least the next couple of years.

Under the terms of the peace bond, which is reserved for people who the authorities fear may commit terrorist acts, Mr. Chaudhry must remain in Ontario for the next year and live with his parents. He is prohibited from owning any weapons, must continue to receive counseling and is required to report any changes in his virtual or physical addresses to the police.

Fool us once, shame on us. Fool us for multiple episodes, well… that’s on you, buddy. This has wrapped up one of the weirder tales of the War on Terror, a complete reversal of the expectations here in the US, where it’s the feds who are the fake terrorists.

Filed Under: abu huzayfah, canada, fake terrorist, isis, rcmp, shehroze chaudhry, terrorism, terrorism hoax

Ken Popehat White (Again) Shows How To Respond To A Completely Thuggish Legal Threat Letter

Too Much Free Time

from the rhetorically-speaking dept

It’s been a while since we’ve seen a really good response letter to a — as Ken White likes to call them — “bumptious” legal threat letter. But here we’ve got one, courtesy of Ken himself, representing Chad Loder. Loder is a writer who has been calling out propagandist Andy Ngo and The Post Millennial, a propagandist rag that Ngo sometimes writes for. The Post Millennial was apparently sad about that and sent Loder a very silly legal threat:

Here’s the text of the letter:

From: Sam Coppola Sent: September 29, 2021 2:29 PM

Subject: The Post Millennial v Loder et al.

UNDER RESERVE

We are special counsel to The Post Millennial (“TPM”) who have advised us of various recent posts and allegations you have made publicly and on your Twitter account.

Our client advises us that the posts and allegations are false and misleading (eg: TPM is NOT Ngo’s “disinfo site” or a “disinformation website vilifying the Anti-Defamation League”, it is an independent news organization; TPM is NOT “run by Andy Ngo”, it is a site owned an operated by Matthew Azrieli as is publicly stated on TPM’s website. As specifically denied by Andy Ngo, he does NOT provide “kill lists of journalists…”; Our client and TPM are NOT “neo-nazis” and do NOT “publicly incite violence” or “target journalists with death threats”, in California State legal proceedings case No 21TRR000739 Chad Loder vs Sarah Mason you falsely believe “…that this account is popular with members of the far-right, including violent extremists” and Exhibit L where you indirectly and purposely falsely publish that “Andy Ngo knowingly defended pedophile Amos Yee”, et…) and were done only with malice and intent to harm our client and interfere with its commercial dealings.

Such posts are also a direct violation of Twitter Rules in respect of “Abuse/harassment” since they harassed and targeted our client and Andy Ngo and incited other people to do so including your directed @(TPMadvertiser) tags. Your posts also published private information (a private chat transcript with Sheri Freed) again contrary to law and the Twitter Rules. As you are aware, Twitter has taken these violations very seriously and even suspended the accounts of well known Canadian politicians for abuses such as those made by you.

You are on formal notice to:

1. Cease and Desist publishing any false, misleading, abusive, and harassing posts;
2. Remove all of the unlawful posts;
3. Publish a retraction and apology satisfactory to our client and sent to the public and the clients and customers which you tortiously interfered with.

If you fail to do so within 3 days, our client will be obliged to exercise all other rights and recourse it may have, including without limitation, commence legal proceedings against you without further notice or delay and hold you liable for any and all damages thereto.

PLEASE GOVERN YOURSELF ACCORDINGLY.

The main block of the 2nd paragraph is almost entirely inscrutable. It throws in some legal jargon but not in any manner that makes sense. The letter mixes up a bunch of things and suggests that TPM might take legal action, but also that Twitter might act? All in all it’s nonsensical, but Ken White is the master in responding to these kinds of letters, so I’ll let him take it from here:

On whose behalf do you write? You claim to be ?special counsel? to The Post Millennial (?TPM?). Congratulations, I?m sure.¹ Yet most of your threat is a gripe about things Mr. Loder said about Andy Ngo, who is apparently an ?editor at large? for TPM. (Again ? congratulations, I?m sure.) Moreover, after asserting that you represent TPM, you lose track and refer to ?our client and TPM.? Do you represent Mr. Ngo as well? You seem intent on distancing Mr. Ngo from TPM, pointing out that he does not ?run? TPM. I?m sure everyone understands why you?d want to clarify that. But you also seem to be arguing that criticisms of Mr. Ngo are false and that Mr. Ngo is perfectly respectable. How, then, is it defamatory to associate TPM with him? That was a rhetorical question. Since your legal theories are nonsense, it doesn?t matter.

For what it’s worth, the footnote links to this article calling bullshit on a nonsense story spread by The Post Millennial and a few other sites that are focused on driving whatever silly culture war the Trumpist world delights in this week.

It gets better. Ken breaks out his French (thoughtful for the Canadians):

You may believe that you can intimidate Mr. Loder with frivolous legal threats because Canada, despite being quite delightful in many other ways, indulges such vexatious litigation calculated to silence critics on behalf of the thin-skinned, the vengeful, and the cynically partisan. Au contraire, mon ami. The United States, conscious of the dangers of libel tourism and pro-censorship legal systems, has enacted the SPEECH Act, 28 United States Code § 4102. The SPEECH Act prohibits American courts from recognizing foreign defamation judgments obtained under regimes that do not provide defendants with free speech protections as robust as those available under the First Amendment to the United States Constitution and the laws of the relevant states. American courts have found that there is ?no meaningful dispute that the law applied by [Canadian courts] provides less protection of speech and press than First Amendment and [state] law. Canadian defamation law is derivative of the defamation law of the United Kingdom, which has long been substantially less protective of free speech.? (Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 488 (5th Cir. 2013) (upholding refusal to recognize Canadian libel judgment under SPEECH Act). Any Canadian judgment you obtain against Mr. Loder will be worthless ? both because Canadian courts lack personal jurisdiction over him (as also required by the SPEECH Act) and because his speech is clearly protected by American law.

Then, he highlights why it would be equally stupid to file a lawsuit in the US:

Perhaps you plan to sue Mr. Loder in America. It would be my pleasure, M. Coppola, to introduce you and your client or clients to one of our anti-SLAPP statutes. Any suit you file in the United States will fail for multiple reasons, and result in you paying Mr. Loder?s legal fees under an anti-SLAPP statute.

He then goes through all the many reasons, including:

Astoundingly, your threat is based largely on things Mr. Loder or his attorney said in court filings. Such statements are absolutely privileged from defamation claims under relevant law. Cal. Civ. Code § 47(b), Pollock v. University of Southern California, 112 Cal.App.4th 1416, 1430-1431 (2003) (declaration filed in court absolutely protected by litigation privilege); Holland v. Jones, 210 Cal.App.4th 378, 382 (2012) (litigation privilege barred defamation action because it was based on statements ?whether true or false or made with malice or without it, in her declaration in [court] proceedings [that] fall squarely within the litigation privilege. They are communications made in a judicial proceeding by a litigant to achieve the objects of the litigation with some connection to the action.?).

Reading this, you get the feeling that Ken was pretty excited to search out any Canadian reference he could think of:

Your threat is also a jumbled, oily poutine of complaints about opinions, insults, and heated rhetoric. But under American law, statements can only be defamatory if they?re provably false statements of fact. ?Thus, rhetorical hyperbole, vigorous epithets, lusty and imaginative expressions of contempt, and language used in a loose, figurative sense have all been accorded constitutional protection.?

There are a few more reasons included as to why any such lawsuit will fail (you can go read the whole letter if you’d like) but the final one is also worth highlighting here:

Finally, I am informed that in Canada a defamation defendant carries the burden of proving that a challenged statement is true. This hardly seems polite. In the United States, which values free speech and scorns the censor and the litigious bully, the burden is on the defamation plaintiff to prove that a challenged statement is false. You will fail to carry that burden. Take, for example, your gripe that Mr. Loder described TPM as a ?disinformation website vilifying the Anti-Defamation League.? Even assuming this statement were a provable statement of fact ? a laughable proposition ? your clients? own words will thwart any effort to disprove it

But, truly, the cherry on top is the closing. As we’ve seen over and over again, letters that close “please govern yourself accordingly” are hallmarks of lawyerly bullying, so it’s nice to see how Ken turns it all around on Mr. Coppola:

Direct all further patently frivolous threats and other communications to me. Kindly govern yourself.

Filed Under: 1st amendment, andy ngo, canada, chad loder, defamation, free speech, ken white, threats
Companies: the post millennial