I originally began this headline with the word “ironically.” But it would only be ironic if it wasn’t by design. Irony suggests something slightly out of the control of the principal figures resulted in something somewhat unexpected.
That isn’t the case here. This was by design.The New York Times has obtained the behind-the-scenes memos issued by Supreme Court justices back in 2016, as they discussed responding to an “emergency” appeal related to questionably authorized application of the Environmental Protection Agency’s powers by then-president Barack Obama.
Here’s how that went, once the Supreme Court was finished with its backroom “discussion:”
For two centuries, the court had generally handled major cases at a stately pace that encouraged care and deliberation, relying on written briefs, oral arguments and in-person discussions. The justices composed detailed opinions that explained their thinking to the public and rendered judgment only after other courts had weighed in.
But this time, the justices were sprinting to block a major presidential initiative. By a 5-to-4 vote along partisan lines, the order halted President Barack Obama’s Clean Power Plan, his signature environmental policy. They acted before any other court had addressed the plan’s lawfulness. The decision consisted of only legal boilerplate, without a word of reasoning.
The Supreme Court never bothered to hear the case on its merits. The emergency appeal never resulted in the appellants being asked to submit briefings or engage in oral arguments. Instead, the 5-4 conservative majority decided to block Obama’s “Power Plan” via a single paragraph that made it clear Chief Justice John Roberts had not only pushed for this behind-the-scenes handling of the case, but had gotten what he wanted from the other justices.
But the internal discussion was anything but indicative of a majority view. John Roberts — citing no case law (but referring to TV interviews and EPA website posts) — claimed Obama was abusing his executive power by putting this plan into action. He also claimed this “emergency” ruling needed to be issued prior to the scheduled court recess because if SCOTUS failed to do so, immediate irreparable harm would be the result.
[Justice Roberts] argued that the Obama plan, which aimed to regulate coal-fired plants, was “the most expensive regulation ever imposed on the power sector,” and too big, costly and consequential for the court not to act immediately.
This faux concern about immediate harm was contradicted (far more immediately) by the dissenting justices, beginning with Justice Stephen Breyer, who pointed out what the plan actually demanded in terms of timelines:
Justice Breyer responded later that day to the chief’s memo but did not address all its points. Such stays were unusual, he wrote, stating his objections mildly.
He skipped over the question of whether the plan was lawful, asking only: Why the rush? The circuit court had already set a date to hear the case in June. The first deadline for power plants to reduce their emissions was six years away; full compliance was not required until 2030. That was plenty of time for the case to play out through the legal system.
John Roberts didn’t care. He wrote back, claiming the burdens placed on the power industry were too onerous. Why, if the plan were allowed to be enacted, Roberts said, companies across the entire nation might be expected to spend $480 billion over the next 15 years. To put that in context, the electric sector of the US power industry has made over $200 billion in profit over the last five years alone. Had this plan been allowed to move forward, states and utilities would have easily absorbed the cost of compliance. More likely, they would have just passed on the cost of compliance to customers, ensuring their profit margins remained where their investors preferred them to be.
Roberts claimed that without emergency back-door action, these utilities were “highly unlikely to survive.” Elena Kagan responded by pointing out that even if that might be the case, the nation’s top court was obligated to hear the case in court and rule on the merits, rather than issue a non-opinion that said nothing more than the majority was unwilling to allow Obama’s alleged executive power overreach.
That prompted Justice Alito to pitch in his expected two cents, which was this:
Echoing the chief justice’s sense of insult and suspicion about the Obama administration, he wrote that the E.P.A. appeared to be trying to render the court irrelevant.
And that, of course, is a sticking point for Alito, who has definitely done everything he can to prevent the Trump administration from… um… rendering the court irrelevant.
The context matters. First, this was a conservative majority trying to dump a “liberal” plan to make the US more reliant on clean energy because conservatives generally hate clean energy and it definitely looked like the Democratic Party might continue to hang on to this executive power when the only GOP candidate of interest was a pussy-grabbing loudmouth with zero political experience.
Second, another justice decided to exit the mortal plane at an inopportune time for the conservative majority:
The following Saturday morning, Justice Scalia failed to appear for breakfast at a weekend hunting retreat in Texas. Hours later he was found dead. As far as the public record reveals, the vote on the Clean Power Plan was his last. Had the court not acted with exceptional speed, the case would have ended in a deadlock and the Obama plan would have stayed in place.
The current makeup of the Supreme Court — as well as its newfound deference to executive power and excessive utilization of the “shadow docket” — can be traced back to these two events. The GOP managed to stonewall Obama’s Supreme Court appointee, allowing Trump to stack the court. And with the court now heavily tilted toward whatever it is that passes for “conservatism” these days (mostly white Christian nationalism, peppered heavily with president-as-king assertions), the shadow docket allows the justices who once pretended to be concerned about reining in executive power to allow this power to expand to the limits of its imagination.
Since this moment — now exposed by the publication of previously secret memos — two-thirds of the Supreme Court are now Constitutional Crisis hotline operators who refuse to answer any call that isn’t coming from the White House. Should the regime change following the next presidential election, we can only expect this hypocrisy to continue.
I think lots of people know the kind of person who thinks they’re more clever than they really are. The kind of person who thinks that they can outwit the system by playing stupid games. The kind of person who thinks that this kind of beating the system is because they’re smart. This kind of person is usually viewed as a dipshit. Donald Trump’s DOJ seems to be, as a group, acting like just that kind of dipshit.
Like that overconfident student who thinks they’ve discovered one weird trick to beat the system, the DOJ keeps playing increasingly transparent games in court — making patently ridiculous arguments while acting shocked and offended when judges see right through their obvious nonsense.
It is a form of contempt. Not necessarily in the legal sense. But it is a kind of obvious contempt for the very systems and institutions of our judicial system that they are supposed to be protecting as a part of the constitutional order. And while judges are often willing to give great leeway to bad actors in their courtroom, at some point the outright contempt for the court can turn into something judges will start calling out.
I’m reminded of a college classmate who exemplified this mindset perfectly. He’d spend countless hours finding elaborate ways to game every assignment and test, devising increasingly convoluted schemes to avoid doing the actual work. The irony was that his schemes typically required far more effort than simply completing the assignments properly would have taken. But he sure was proud of the ways he believed he was beating the system.
That same misguided energy now permeates Trump’s DOJ (indeed, I just looked up on LinkedIn if that classmate might now work for the DOJ — thankfully he’s not there). These officials pour tremendous effort into crafting obviously laughable legal arguments, filing misleading declarations, and playing semantic games with court orders — all while seemingly convinced of their own clever brilliance. Just like my former classmate, they’re expending more energy trying to game the system than it would take to actually fulfill their constitutional duties and serve the American people. The result is a particularly toxic form of institutional contempt — not just disregard for the courts, but a sort of smirking certainty that they’re somehow outsmarting the entire judicial system.
It is nearly impossible to keep track of all of the various lawsuits that have been filed against the plethora of illegal actions taken by the Trump administration in the last two months since inauguration (though kudos to folks like Just Security who have been tracking them as best as they can).
The Boasberg case represents a critical escalation in this pattern of contempt. While legal scholars debate what precisely constitutes a constitutional crisis, Corbin Barthold makes a compelling case that we’ve now crossed that threshold. When a federal judge explicitly orders planes carrying deportees to return and the administration simply ignores that order, we’re witnessing something qualitatively different from their usual games.
THE LONG-AWAITED CONSTITUTIONAL CRISIS has now arrived. It is time for a court to say so.
On Saturday night, James Boasberg, a federal judge in the District of Columbia, issued a pair of emergency orders. The government, he had just been told at a hastily convened hearing, was removing from the country, without due process, more than a hundred alleged gang members. The planes, he learned, were already in the air. To justify this stunning move, President Trump had issued a proclamation invoking the Alien Enemies Act of 1798.
At around 6:45 p.m., Boasberg orally ordered the planes turned around. “Any plane containing these folks that is going to take off or is in the air needs to be returned to the United States,” he ruled from the bench. “This is something that you need to make sure is complied with immediately.”
At 7:26 p.m., he issued a briefwritten orderbarring the government from relying on the Alien Enemies Act to remove noncitizens from the country.
The government ignored both orders.
This outright defiance marks a subtle, but notable, departure from the administration’s playbook the past few months. Until now, they’ve preferred more smirking forms of contempt — slow-walking court orders, playing word games with compliance, or burying judges in misleading declarations. But each of these smaller acts of contempt has apparently emboldened them toward more brazen defiance.
A second administration official said Trump was not defying the judge whose ruling came too late for the planes to change course: “Very important that people understand we are not actively defying court orders.”
This argument, that the order came too late, is nonsense. But it’s notable how the administration is trying to insist it’s actually obeying orders in court, while doing wink, wink, nod, nod stuff out of court.
The administration’s attempts to characterize this as a routine “deportation” matter represent perhaps their most cynical wordplay yet (and one the media should stop repeating, though that’s a different issue). Deportation is a legal process with established due process rights. What happened here was something far darker: the US government engaging in what amounts to human trafficking, shipping people to El Salvador as forced labor without any due process. The mask slipped entirely when El Salvador’s President tweeted “Oopsie… too late” in response to Judge Boasberg’s order — a tweet that Secretary of State Marco Rubio and Elon Musk both found amusing enough to amplify:
The full scope of what’s happening deserves to be called out directly. Start with the legal sleight-of-hand: The administration has resurrected the Alien Enemies Act, a widely disparaged authoritarian relic that only applies during “a declared war” or “invasion” — neither of which exists. They’re wielding this zombie legislation to deny basic due process rights to people on American soil, shipping them to El Salvador (not even their country of origin) to become literal slave labor — all funded by US taxpayers.
The contempt deepens with their public justification. Without due process requirements, they don’t actually have to prove their claims that these people are gang members. And they can’t — because the claims are false for many of those shipped out. Reports show that many of the deportees have no gang connections at all. Any competent law enforcement official would recognize these allegations as nonsense.
But the most chilling display comes in their response to judicial oversight: when a federal judge attempts to restore basic due process rights, the administration not only ignores his order, but the Secretary of State publicly mocks it while coordinating with their partner in human trafficking. This isn’t just contempt of court — it’s contempt for the entire concept of legal constraints on executive power.
The administration’s response to Judge Boasberg perfectly encapsulates their broader strategy: when the facts aren’t on your side, attack the judge. Their characterization of Boasberg as a “radical left lunatic partisan” would be merely laughable if it weren’t so deliberately misleading. This is the same conservative judge who repeatedly ruled in Trump’s favor in other cases — ordering Hillary Clinton’s emails released, blocking the release of Trump’s tax returns, and limiting disclosures from both the Mueller investigation and the classified documents grand jury.
The contempt here operates on multiple levels: there’s the surface-level dishonesty of painting a conservative judge as a radical leftist, but more insidiously, there’s the implicit message that any judge who dares enforce the law against Trump must be acting from partisan motives. This fits a broader pattern where the administration’s lawyers aren’t just playing games with legal arguments — they’re actively working to undermine the legitimacy of judicial oversight itself.
The Boasberg case may be the most brazen example, but it’s far from isolated. Across multiple courts, judges are increasingly witnessing this administration’s attempts to treat the judicial system like a game they can cleverly exploit. Their contempt generally takes three forms, each more concerning than the last:
First, there’s the malicious compliance playbook — taking court orders so literally they become absurd. The Social Security Administration exemplifies this approach. When Judge Ellen Hollander blocked DOGE from accessing records, interim SSA head Lee Dudek responded by threatening to shut down the entire Social Security system, claiming his entire IT staff were somehow “DOGE affiliates.” This led to an increasingly furious series of clarifications from the judge, culminating in her observation that either Dudek was lying or the DOJ lawyers were.
Second, there’s the strategy of procedural manipulation — exploiting court customs and courtesy to gain tactical advantages. Take the EPA case, where officials used procedural games to try to circumvent judicial oversight. They asked for a routine 24-hour extension on a hearing (which opposing counsel typically grant as a professional courtesy), then used that delay to sneak in actions that would have been prevented by the pending TRO:
Third, we’re seeing increasingly more open defiance of court orders, coupled with attempts to delegitimize any judge who rules against them. The Perkins Coie case perfectly demonstrates this escalation. When Judge Beryl Howell issued a TRO blocking an obviously unconstitutional executive order targeting the law firm for representing Democratic interests, Attorney General Pam Bondi and OMB Director Russell Vought responded with explicit defiance:
The Executive Branch’s position is that Executive Order 14230 is permissible, and that the Court’s order was erroneous. The government reserves the right to take all necessary and legal actions in response to the “dishonest and dangerous” conduct of Perkins Coie LLP, as set forth in Executive Order 14230.
At the same time, the DOJ is trying to disqualify Judge Howell for… “hostility” towards the President, again setting up the idea that any judicial action holding them to account is driven by bias, rather than an actual respect for the Constitution.
The pattern of contempt continues across other cases, each fitting into these three categories of increasingly brazen defiance:
More malicious compliance games appear in the DOGE leadership saga, where pretend DOGE boss Amy Gleason filed a declaration claiming to run the agency even as Trump himself said in his address to Congress that Elon Musk runs it. When called on this discrepancy, Gleason’s response dripped with technically-accurate-but-misleading wordplay: “Elon Musk does not work at USDS. I do not report to him, and he does not report to me. To my knowledge, he is a Senior Advisor to the White House.” The contempt deepened when it emerged that Gleason was simultaneously appointed as an HHS consultant a week after being named DOGE head.
The EPA case shows how procedural games escalate to outright dishonesty. EPA boss Lee Zeldin, fixated on a deceptively edited Project Veritas video, illegally froze a Citibank account, and attempted to launch a grand jury investigation. When challenged in court, DOJ lawyers told Judge Tanya Chutkan they couldn’t provide evidence of any criminal violation because “this Court is not in a position to rule upon whether or not this termination was consistent with the contracts.”
Perhaps most telling is the transgender military ban case, where the administration’s contempt for judicial oversight is laid bare. The DOJ keeps insisting to the judge that there is no ban on transgender service members, while Secretary of Defense Pete Hegseth openly declares exactly the opposite:
These examples paint a clear picture of an administration that, like my college classmate from years ago, believes it’s brilliantly outsmarting the system while actually just making itself look increasingly desperate to avoid any accountability. But unlike that student’s academic games, these legal shenanigans carry profound constitutional implications.
What started as wannabe-clever-but-obvious attempts to circumvent court orders has evolved into something far more dangerous: a systematic effort to delegitimize judicial oversight itself. Each time they respond to a court order with malicious compliance, procedural manipulation, or outright defiance, they’re not just showing contempt for individual judges — they’re undermining the very concept of judicial review.
The progression is clear: first came the word games and barely-technically-accurate-but-misleading declarations, then the exploitation of court procedures and customs, and now increasingly open defiance coupled with attempts to paint any judge who enforces the law as politically biased. This is how institutional guardrails get dismantled — not through dramatic confrontation, but through a thousand small acts of contempt that gradually normalize the idea that court orders are merely suggestions to be cleverly evaded.
Trump has already effectively neutered congressional oversight. Now his DOJ appears determined to do the same to the judiciary, treating federal judges like frustrated professors whose rules are just obstacles to be gamed. But unlike my former classmate’s academic adventures, the stakes here aren’t just a passing grade — they’re the continued functioning of our constitutional system of checks and balances.
Judges are starting to catch on, calling out these games with increasing fury. But judicial anger alone won’t be enough. An administration that responds to court orders with winks, nods, and “technically accurate” lies isn’t demonstrating clever lawyering — it’s showing fundamental contempt for constitutional governance itself. Those who shrug this off as mere legal gamesmanship are missing the escalating danger: when government lawyers treat the judicial branch as a system to be cleverly gamed rather than an essential check on power, they’re not just failing their professional obligations. They’re actively participating in the dismantling of judicial review itself.
These officials seem convinced they can keep playing these games forever — or at least until there’s no independent judiciary left to play games with. At some point, judges need to stop writing angry opinions and start issuing contempt charges. And Congress needs to wake the fuck up before it’s too late.
The Trump Administration is apparently going to be a law unto itself. There have been plenty of people put up against the wall in recent days, but the weekend concluded with Donald Trump — perhaps illegally — firing at least 15 Inspectors General. This mass firing leaves the Defense Department, State Department, Department of Veterans Affairs, and the Social Security Administration without anyone in charge of internal investigations. Also affected are the departments of Transportation, Health and Human Services, Interior, Commerce, Energy, Housing and Urban Development, and Labor. The EPA and Small Business Administration IGs were also fired.
“It’s a very common thing to do,” Trump claimed to reporters on Air Force One traveling to Florida, in his first comments after a decision that caused alarm among government watchdogs and members of Congress.
Is it, though? Pretty much everyone and everything else begs to differ.
The dismissals appeared to violate federal law, which requires Congress to receive 30 days’ notice of any intent to fire a Senate-confirmed inspector general.
Violating federal law like this is not a “very common thing to do.” I mean, I would hope not. We’ve never seen this before, so it’s safe to say most presidents don’t follow up their inauguration with illegal acts. As the Washington Post report notes, this move even managed to upset some Trump loyalists.
This move also upset people Trump and his party personally appointed during his last term in office. But it shouldn’t have surprised them. Trump’s short-term-only memory makes it impossible for him to remember anyone that hasn’t made him consistently happy throughout the entirety of his political career. Here he is weighing in on the many personal appointees he just unceremoniously (and illegally!) fired:
“I don’t know them,” he said, even though many of those he fired were people that he appointed during his first term. “But some people thought that some were unfair or some were not doing their job. It’s a very standard thing to do.”
To be fair, with the exception of DHS IG Joseph Cuffari (someone who has himself been under investigation for years and who was found to have engaged in misconduct), most of the IGs weren’t Trump loyalists in the classic sense, which explains the president’s willingness to kick them to the curb during this latest wave of “drain the swamp but replace it with an even murkier swap” efforts.
Unfortunately for Trump, this isn’t going to go as smoothly as he apparently believes it will. A lot of the fired Inspectors General know the law and plan to keep showing up for work until they’re given proper notice and the 30 days to vacate that the law mandates. A late Friday night purge (the HHS IG received notice at 11:45 pm) is not exactly a confidence builder. And even Trump, a man seemingly incapable of feeling shame, realized it was best to do this as late as possible to avoid the sort of scrutiny that comes when you kill massive amounts of accountability in broad daylight on a work day.
But there’s another major worry: a report last July by the Wall Street Journal (paywalled) showed huge swaths of telecom cabling installed years ago was coated in lead, posing significant health concerns. Telecoms like AT&T and Verizon have tried to downplay the issue, which is predicted to cost somewhere in the neighborhood of $50 billion to remedy.
Enter the EPA, which now says it has expanded a “high priority” inquiry into the problem (read: not a very high priority inquiry into the problem) and what the nation’s biggest telecoms are doing about it. For whatever it’s worth, lawmakers like Senator Ed Markey aren’t pleased that telecoms are only just now getting around to remedying the problem decades after it should have been obvious:
“Lead exposure poses serious risks to children, who are particularly vulnerable to its effects, and is associated with chronic pain in adults, and with miscarriage, stillbirth or premature birth during pregnancy,” Markey wrote in his letter. He also noted that lead cables could contaminate drinking water.”
This being the U.S. telecom industry, you can be fairly certain that any meaningful remedy to the problem will take years to materialize, any regulatory penalty for failure to fix the problem in a timely manner will border on the meaningless, and all remediation costs will, inevitably, be passed on to consumers in the form of price hikes on already expensive broadband access.
The Obama administration was terrible when it came to how it treated journalists, acting vindictively against many journalists, and opening up investigations that created massive chilling effects on journalism. While some supporters of our previous President insisted that these actions were necessary due to the journalists “leaking” or revealing sensitive information, that’s a ridiculous claim. A journalist’s job is to report on things, including revealing the kind of information a government would prefer be kept secret. And, more importantly, normalizing a government at war with the journalists who cover it was bound to be abused even more going forward.
And that brings us to the current administration, whose attacks on journalists have been frequent as well, though of a different, more clumsy nature. While the last administration focused on keeping secrets and launching chilling investigations, this one seems focused on name calling and hamfisted attempts at shutting out the media in the most obvious and petty of ways. Neither approach is good, but the current administration’s attacks on journalists are so blatant and so stupid, it just makes people wonder what they’re so afraid of.
While most people think mainly about the President’s comments about the media, the EPA’s attitude towards the media may be even more instructive. Just a few weeks ago, NY Times reporter Eric Lipton, in an interview with NPR’s Terry Gross, explained how the EPA sought to shut out the media:
Well, this has been something that’s been apparent to reporters that cover the EPA for a year now where every Friday or so we send in a request to the Agency to ask them what’s up this week, where is the administrator going? And, you know, therefore can we be there essentially to observe his activity as he travels around the United States, in some cases around the world? It’s part of our job to cover that. They never tell us where he’s going.
And, you know, every Friday we send in this email to say, you know, we’re trying to do our jobs to cover the Agency. What they do is they take their trips. They require that the participants that are, you know, part of the various events that they’re going to have not tell any reporters unless they selectively pick a reporter they think is going to give them good treatment. And the only time that we become aware of it is when Scott Pruitt or his staff sends out tweets, and then they issue a press release with photos taken from the staff. So honestly, it’s a bit like propaganda as opposed to actual events that the public has access to.
Later in the interview, Lipton shares another story of how EPA boss Scott Pruitt almost ended up at an event where open questions would be asked — after the organizer of the event declared that it was a town hall-style event with questions, and the EPA not only flipped out and said no Q&A would be allowed, but sent that organizer a list of “allowed” questions that included hard hitting journalistic inquiries like “What has it been like to work with President Trump?”
So it should come as little surprise that on Tuesday, at an event where Pruitt was scheduled to speak, the EPA decided to just keep a bunch of reporters out. Specifically, reporters from the Associated Press, CNN, and an environmental publication called E&E News. In the case of the AP reporter, Ellen Knickmeyer, security allegedly “grabbed [her] by the shoulders and shoved [her] out of” the EPA building.
?The leadership summit quickly reached capacity with a wide variety of stakeholders including representatives from over 40 states, territories, and tribes,? Wilcox said in a prepared statement.
And that sounds like a valid excuse until you hear that there were “dozens of empty seats in the room” according to reporters who were there (mentioned in the same link above).
The EPA also tried to blame the AP reporter for security grabbing her and removing her from the building, but later had to change its false statement claiming that she had tried to shove her way in, which does not appear to be true.
After security told her that ?we can make you get out,? Knickmeyer said she took out her phone to record what was happening. Some of the security guards reached for it, and a woman grabbed her shoulders from behind and pushed her about five feet out the door.
Wilcox issued a statement late Tuesday saying Knickmeyer ?pushed through the security entrance.? After the AP objected to the characterization, the spokesman issued a second statement removing that account and instead saying Knickmeyer ?showed up at EPA but refused to leave the building after being asked to do so.?
Separately, the argument that this was a space issue is undermined by a report that the EPA had a list of which reporters were to be blocked. According to CNN:
A CNN photographer was screened by security guards before the event and was waiting for an escort or further information. Wilcox arrived soon after and provided security with a list of news outlets and reporters, instructing them not to let anyone not on the list into the event. The CNN photographer then asked if he could enter the event and was told by security he couldn’t.
This is a really bad look for an agency that already is looking pretty dismal. The fact that some press was let in and others weren’t — and that phony excuses were used multiple times in multiple ways — suggests an agency that wants to be vindictive against coverage it doesn’t like. These kinds of attacks on the press may be different in nature than those of the previous administration, but it does show how the general attacks on the press by any administration are shameful attempts to avoid being held accountable. While the strategies may be different, the end effect is a much weaker and less well-informed society. That should be seen as a serious problem.
Reports started coming out this morning that the new Trump Administration had told the EPA that it needed to stop doing anything publicly without first getting approval from the White House (in addition to freezing grants and contracts). According to a memo that was sent around to EPA staff:
If you can’t read that, the key parts say:
No press releases will be going out to external audiences.
No social media will be going out. A Digital Strategist will be coming on board to oversee social media. Existing, individually controlled, social media accounts may become more centrally controlled.
No blog messages.
The Beach Team will review the list of upcoming webinars and decide which ones will go forward.
Please send me a list of any external speaking engagements that are currently scheduled among any of your staff from today through February.
Incoming media requests will be carefully screened.
No new content can be place on any website. Only do clean up where essential.
List servers will be reviewed. Only send out critical messages, as messages can be shared broadly and end up in the press.
It’s possible to say that this is just the Trump administration hitting the pause button to figure out what’s going on before moving forward again, but many in these agencies are quite worried that they’re going to be muzzled for political reasons. Most of the people working in these agencies are civil servants, not political appointees, and their work is not at all political. The press releases and blog posts are generally to release new findings, research and data from taxpayer funded studies. This shouldn’t be controversial or reviewed for political motives.
Of course, this kind of thing is hardly unprecedented. For many years, we wrote about the ridiculousness of then Canadian Prime Minister Stephen Harper gagging Canadian scientists from talking about factual research that was politically inconvenient (including a study on fish stock). This kind of gagging on “politically sensitive” but factual science was only lifted last year once Justin Trudeau came into office. Of course, just a few months before that, the UK similarly started muzzling scientists to stop them saying anything the politicians didn’t like.
One hopes the Trump administration will not be putting in place similar policies.
Of course, if that is the plan, it should be a huge boon for investigative journalists. And they’re already hunting for sources. As the reports on the gag order came out this morning, lots of reporters stepped up on Twitter with notes on how to contact publications with information:
So, perhaps this kind of gag order will lead to a golden age of whistleblowing. Unfortunately, it may also lead to further crackdowns on whistleblowers. Once again, as we’ve explained over and over again the past few years, the Obama administration was the most aggressive and proactive in cracking down on whistleblowers and the press, and they’ve now handed off that power and precedent to the Trump administration, which will have a pretty big opportunity to use it.
Well, the Library of Congress has now released its official exemptions to the DMCA’s 1201 anti-circumvention rules, the ridiculous process known as the triennial review, and as was pretty much expected, it’s a total mess. We’ll have a more thorough look at it later, but after an initial read through of the document, it appears that the Library of Congress tried to please everyone and will likely end up pleasing no one. If you’re unfamiliar with the process, under the DMCA, there’s a part of the law, section 1201, which says that it’s copyright infringement to bypass any kind of “technological protection method” (TPM) to access something, even if the reason you’re circumventing the TPM is totally non-infringing. Basically, this says that if you put a digital lock on something, even if the lock is weak or stupid or for something totally unrelated to copyright law (such as blocking competition), you can use copyright law to stop anyone from getting around it. The concept is so stupid and so broad that even Congress realized it would be abused. But rather than fix it, it gave the Library of Congress this weird authorization to declare “exemptions” once every three years. So, basically, every three years people ask for exemptions (and each exemption granted in the past needs to be re-requested, and re-supported every three years). Then the Library of Congress climbs a mountain, thinks on it for a bit, and comes down the mountain declaring what is legal and what is not. It’s an insane process.
Three years ago, things went really haywire when the Library of Congress took away the exemption it had previously granted for cell phone unlocking. This resulted in widespread protests, and eventually Congress stepping in with a bill that didn’t actually fix the underlying problem, but just reinstated the previous exemption and told the Library of Congress to be more careful next time.
You can see in the latest exemptions that the Library of Congress has taken Congress’s mocking a bit to heart — as it seems totally gun shy on just about everything. It refers repeatedly to Congress’s decision to bring back the unlocking exemption and reads more into it than is necessary. But, because of this, it seems to want to tiptoe down the line, allowing exemptions, but putting all sorts of weird restrictions on them. For example, one of the most talked about requests was the one for accessing vehicle diagnostics. You may recall that GM, John Deere and even the EPA said the Library should reject these requests, because people might get access to diagnostic info… and then break emissions controls and pollute the environment or something. Apparently, only the automakers should be allowed to do that by themselves.
Here, the Library of Congress sort of grants that exemption, but with all sorts of caveats:
Computer programs that are contained in and control the functioning
of a motorized land vehicle such as a personal automobile,
commercial motor vehicle or mechanized agricultural vehicle, except
for computer programs primarily designed for the control of
telematics or entertainment systems for such vehicle, when
circumvention is a necessary step undertaken by the authorized
owner of the vehicle to allow the diagnosis, repair or lawful
modification of a vehicle function; and where such circumvention
does not constitute a violation of applicable law, including without
limitation regulations promulgated by the Department of
Transportation or the Environmental Protection Agency; and
provided, however, that such circumvention is initiated no earlier
than 12 months after the effective date of this regulation.
Even more bizarre, in the description about this exemption, it appears to say that this exemption can only be used if you are doing the circumvention yourself — and not for hiring someone to do it for you. Absolutely ridiculously, it points to the language of the bill Congress passed to smack the Library around last time on the phone unlocking exemption:
Moreover, by passing the
Unlocking Act?which amended section 1201 to allow unlocking of cellphones and other
devices to be carried out by third parties ?at the direction of? device owners?Congress
indicated its view that extending the reach of an exemption to cover third-party actors
requires a legislative amendment.
Wha….? In the fight over the Unlocking Act, there was serious concern that early drafts of the bill would cut out companies that help individuals unlock their phones. And thus to make sure that such things weren’t excluded, Congress made it explicit that it covered third parties unlocking phones “at the direction of” device owners. And yet… now the Library of Congress is ridiculously interpreting this to mean that it cannot grant such an exemption without Congress stepping in.
That’s… wrong. And ridiculous.
And that’s not the only problem with this. The one year delay in implementation is ridiculous as well. The Library of Congress notes that this is to allow other agencies to weigh in, but we just had a whole year for agencies to weigh in and many of them did. Yet, now, they want to delay the implementation of a three year exemption by one whole year in case more of them want to weigh in after the fact? Clearly this is because the Library of Congress is gunshy about what happened with unlocking last year, but to totally upend the process and delay a necessary exemption is no way to do that.
Similarly bizarre: the Library of Congress seemed to think it’s perfectly fine to weigh outside factors in determining this issue, even though it’s supposed to be judging things entirely based on the copyright issues. So, for example, with this same exemption on car repair and diagnostics, it allows the Copyright Office to review copyright-related factors, but then seemed to indicate that it was just fine for it to also review things that have nothing to do with copyright. It notes that “serious safety and environmental issues… weigh against an exemption.” But that’s not a copyright issue. We should not be using copyright law to regulate other things. We already have safety and environmental laws, and the Copyright Office explicitly endorsing the use of copyright laws to add some sort of additional environmental law (especially one that gets it so backwards) is patently ridiculous.
There are other problems in the rules as well. Michael Weinberg takes a look at the similarly problematic rules on 3D printing, where the same basic thing happened. The overall rule seems like it’s going in the right direction, but is so full of weird and unnecessary and troubling caveats that it mostly erases the good parts of the rule.
There are similar issues in other parts as well. For example, an exemption is added for MOOCs (Massive Open Online Courses) that want to use small snippets of locked up content (usually movies or news clips) as part of their classes: classic fair use. And the Library of Congress says that’s okay… kind of. It only applies to “accredited nonprofit educational institutions.” That sounds reasonable at first, until you realize that many MOOCs are actually run through for-profit entities. For example, Coursera is one of the most popular MOOC platforms out there, but is a for-profit venture. So, the exemption here wouldn’t be usable by National Geographic, who runs its MOOC via Coursera. And there are lots of others who would be similarly blocked, even if the use is clearly fair use. (Update: Actually, it appears this would be allowed).
It really seems like the Library of Congress has made things increasingly more complex for the sake of trying to “split the baby” on things, and in part because it got slapped down so hard three years ago. But the end result is that you get a split baby that seems to go way beyond what the law was intended to allow and pisses off everyone (especially the baby). Laura Quilter, the Copyright and Information Policy Librarian at UMass Amherst summarized the mess of these rules this way:
The prolixity of this rulemaking puts it into its own special hell of inaccessible, unintelligible, crazy-making meshugaas.
This isn’t how law should be made, and it’s unclear why this is still allowed.
For quite some time we’ve pointed out how problematic Section 1201 of the DMCA is. That’s the part of the law that says it’s copyright infringement to simply circumvent any kind of “technological protection measure” even if the reasons for doing so are perfectly legal and have nothing to do with infringement at all. And, of course, we now have the big “1201 Triennial Review” results that are about to come out. That’s the system that was put in place because even Congress realized just how stupid Section 1201 was and how much innovation and research it would limit — so it created a weird sort of safety valve. Every three years, the Copyright Office and the Librarian of Congress would work together to come up with classes of technology that are magically “exempted” from the law. Now, normally, you’d think that if you have to come up with exemptions, there’s probably something wrong with the law that needs to be fixed, but that’s not the way this worked.
The latest triennial review results are about to come out, and a lot of people are focused on it — in part because of current events. As you may recall, earlier this year, we wrote about one of the exemption requests in particular: over whether or not you can tinker with the software in your car. GM was fighting against this, and we were shocked to then see the EPA side with GM (!?!?) on this issue, claiming that it’s a perfectly reasonable use of copyright law to stop tinkering with cars on the off chance that some of that tinkering might lead to changing emissions to illegal levels.
Of course, just a few weeks later, we discovered that VW had been playing games with its software to avoid emissions tests and pollute the world at a much greater rate than is legal (or healthy). Many people have pointed out that, if the software wasn’t all locked up, it seems likely that people would have discovered this problem much earlier. The latest to weigh in on this is Senator Ron Wyden, in a WSJ op-ed, where he explains how the EPA has this whole thing completely backwards:
This year the Environmental Protection Agency submitted comments to the Copyright Office requesting that no exemptions should be granted for car owners or researchers to access and modify the software in their vehicles. The EPA says you shouldn?t be allowed to tinker with your car because it might increase emissions from your tailpipe.
This would block any researcher who would study software in automobiles to make them safer or more environmentally friendly. This summer, security researchers demonstrated that a hacker could take over a Jeep?s systems?GPS, transmission and brakes, among others?over the Internet. This could lead to crashes and even sabotage. In this case at least, Chrysler recalled 1.4 million vehicles to patch that vulnerability, which otherwise could have gone unnoticed.
The obstacle thrown up against access to copyrighted software makes it more difficult for researchers and engineers to find similar problems in the future. Volkswagen?s falsified emissions reports were discovered by independent testing?yet the source of the problem was in the automobile?s software. Independent researchers might have found the problem sooner if not for the threat of lawsuits brought by the company under the DMCA.
In short, while the EPA is worried about individuals potentially violating the Clean Air Act or other regulations, it should be worried about the companies that are actually doing so.
And it’s not just the EPA. As Wyden notes, the FDA is doing something similar, which may be even more dangerous:
The Food and Drug Administration also is getting in on the copyright game. It is telling the Copyright Office that modifying software in medical devices, and then providing them to patients without FDA approval, could put people in danger. But the distribution of untested devices is already illegal. Copyright law should not prevent researchers from taking a look at the software and thinking about how to make devices more effective and safer.
Wyden (along with Rep. Jared Polis) introduced a bill earlier this year to try to deal with this on a permanent basis, rather than through this ridiculous triennial review process. Of course, if the TPP is approved, it may be more difficult to actually make such a change.
But, really, the fact that the FDA and the EPA are making these arguments is a real sign of just how broken our copyright law is and how little many regulators understand innovation, technology and intellectual property. The EPA and the FDA come from a world of “permission-only innovation.” They are both focused solely on setting up laws that “prevent bad stuff” usually through setting up testing regimes. But those regimes can be gamed — and they don’t seem to recognize that by allowing permissionless innovation to happen, it also opens up worlds of useful research and beneficial innovations, both of which could do a lot more to prevent the kinds of harm that the EPA and the FDA think they’re preventing by opposing these exemptions.
There’s a fundamental misunderstanding of the nature of innovation in this setup — where regulators think that the unknown must be “dangerous” and should be prevented until proven okay. But, as history has shown, such a setup only opens up all sorts of games that the big knowledgeable players can use to dance around those regulations, and no real way for outsiders to call them on it (or to create better alternatives). Permissionless innovation is not just a slogan, it’s incredibly effective — and misusing copyright law to prevent it, out of the fear that something bad might possibly happen, without recognizing all the good that is much more likely to come from it, is really dangerous. We’re only just learning that now because of what’s finally come out in the news about VW, but getting rid of the stupid anti-circumvention clause in the DMCA would go a long way towards actually fixing this mess, rather than relying on bureaucrats whose defacto response is to say “don’t do that.”
There have been a number of stories on Techdirt recently about the increasing use of software in cars, and the issues that this raises. For example, back in April, Mike wrote about GM asserting that while you may own the car, the company still owns the software that runs it. You might expect GM to come out against allowing you to modify that software, but very recently we reported that it had received support from a surprising quarter: the Environmental Protection Agency (EPA). The EPA had a particular concern that engine control software might be tampered with, causing cars to breach emissions regulations. We’ve just found out that the EPA was right to worry about this, but not for the reason it mentioned, as the The New York Times explains:
The Environmental Protection Agency issued [the German car manufacturer Volkswagen] a notice of violation and accused the company of breaking the law by installing software known as a “defeat device” in 4-cylinder Volkswagen and Audi vehicles from model years 2009-15. The device is programmed to detect when the car is undergoing official emissions testing, and to only turn on full emissions control systems during that testing. Those controls are turned off during normal driving situations, when the vehicles pollute far more heavily than reported by the manufacturer, the E.P.A. said.
So, just as the EPA feared, software that regulates the emissions control system was indeed tampered with, though not by reckless users, but by the cars’ manufacturer, Volkswagen (VW), which must now recall nearly half a million cars, and faces the prospect of some pretty big fines — Reuters speaks of “up to $18 billion“. The EPA’s Notice Of Violation (pdf) spells out the details of what it calls the software “switch”:
The “switch” senses whether the vehicle is being tested or not based on various inputs including the position of the steering wheel, vehicle speed, the duration of the engine’s operation, and barometric pressure. These inputs precisely track the parameters of the federal test procedure used for emission testing for EPA certification purposes. During EPA emission testing, the vehicles’ ECM [electronic control module] ran software which produced compliant emission results under an ECM calibration that VW referred to as the “dyno calibration” (referring to the equipment used in emission testing, called a dynamometer). At all other times during normal vehicle operation, the “switch” was activated and the vehicle ECM software ran a separate “road calibration” which reduced the effectiveness of the emission control system (specifically the selective catalytic reduction or the lean NOx [nitrous oxides] trap.) As a result, emission of NOx increased by a factor of 10 to 40 times above the EPA compliant levels, depending on the type of drive cycle (e.g. city, highway).
That trick was discovered by the West Virginia University’s Center for Alternative Fuels, Engines & Emissions when studying the VW vehicles. Initially, VW claimed that the increased emissions were due to “technical issues” and “unexpected in-use conditions.” But further tests confirmed the problem, and eventually VW admitted “it had designed and installed a defeat device in these vehicles in the form of a sophisticated software algorithm that detected when a vehicle was undergoing emissions testing.”
It’s significant that the trick was discovered through extensive mechanical testing. Assuming some form of DRM was employed, it would not have been possible to spot the cheating algorithm of the emissions control code because it would have been illegal to circumvent the software protection. This emphasizes once more the folly of allowing the DMCA to apply to such systems, where problems could be found much earlier by inspecting the software, rather than waiting for them to emerge in use, possibly years later.
The revelation about VW’s behavior once more concerns code in cars, but there is a much larger issue here. As software starts to appear routinely in an ever-wider range of everyday objects, so the possibility arises for them to exhibit different behaviors in different situations. Thanks to programming, these objects no longer have a single, fixed set of features, but are malleable, which makes checking their conformance to legal standards much more problematic. When the VW story broke last week, Zeynep Tufekci, assistant professor at the University of North Carolina, tweeted that this was an example of “The Internet of cheating things.” I’m not sure whether she coined that phrase — I’d not seen it before ? but it encapsulates neatly a key feature of the world we are beginning to enter.
As we noted earlier this year, as the Copyright Office and the Librarian of Congress consider the requested “exemptions” from Section 1201 of the DMCA, General Motors has come out strongly against allowing you to modify the software in the car that you (thought you) bought from the company. If you’re new to this fight, Section 1201 of the DMCA is the “anti-circumvention” clause that says that it’s copyright infringement if you “circumvent” any “technological protection method” (TPM) — even if that circumvention has absolutely nothing to do with copyright infringement. Yes, this is insane. It’s so insane that Congress even realized it would lead to ridiculous situations. But, rather than fixing the damn law, Congress instead decided to duct tape on an even more ridiculous “solution.” That is that every three years (the so-called “triennial review”), people could beg and plead with the Copyright Office and the Librarian of Congress to issue special “exemptions” for classes of work where Section 1201 wouldn’t apply. Yes, that’s right, you have a law, but Congress knew the law made no sense in some cases, and so it just gave the Librarian of Congress (the guy who currently can’t keep his website online) the power to anoint certain classes of technology immune from the law.
Anyway, as mentioned, General Motors and others car makers (and also tractor maker John Deere) have been lobbying against the change, arguing all sorts of damage might occur should people be able to hack their own cars legally. And, to be fair, there is a legitimate point that someone messing with their own car’s software could potentially do some damage. But, there are some pretty easy responses to that. First off, that’s not copyright’s job. If you want to ban tinkering with the software in cars, pass a damn law that is specifically about tinkering with software in cars, so that there can be a real public debate about it. Second, lots of perfectly legal tinkering with the mechanical parts of automobiles can also lead to dangers on the road, but we don’t ban it because people are allowed to tinker with things they own.
Either way, the Copyright Office reached out to the EPA about this issue, and in a just published letter (even though it was sent months ago), it’s revealed that the EPA is asking for the exemption to be denied because it’s “concerned” that these exemptions would “slow or reverse gains made under the Clean Air Act.” It also argues that allowing the right to modify your own software would “hinder its ability to enforce… tampering prohibition[s]” that are in existing law already:
EPA is also concerned that the exemptions would hinder its ability to enforce the tampering prohibition. Under section 203(a), the Agency has taken enforcement action against third-party vendors who sell or install equipment that can “bypass, defeat, or render inoperative” software designed to enable vehicles to comply with CFAA regulations. EPA can curb this practice more effectively if circumventing TPMs remains prohibited under the DMCA
First of all, this shows that there’s already another law in place for dealing with people who are doing things that will impact the environment. Second, who cares if it makes the EPA’s job easier, that’s not the role of copyright. That the EPA would so casually argue that it’s okay for it to be abusing copyright law, just because it makes the EPA’s job easier is patently ridiculous.
Following that, the EPA then mocks the idea that anyone would have a legitimate reason to tinker with the software in their own cars:
The Agency also questions whether there is a real need for the exemptions. Car makers are already required to provide access for lawful diagnosis and repair. In EPA’s view, whether or not they are designed for this purpose, the TPMs prevent unlawful tampering of important motor vehicle software.
Again, that’s not the job of copyright, and supporting the abuse of copyright for this purpose is ridiculous. Furthermore, now that we’re living in an age of connected cars, where we’re already discovering that car software is a security nightmare it’s actually more important than ever that people be able to tinker with the software in their cars, to probe for security weaknesses and to improve that software where possible. The EPA has every right to go after those who do so in a manner that violates environmental laws, but it shouldn’t support abusing copyright law just because it makes the EPA’s job easier. And, it shouldn’t just assume that there are no legitimate reasons for wanting to modify the software in your car just because EPA staffers are too simple-minded to understand what those reasons might be.
Whatever you might think of the EPA and its mission, the idea that it would advocate abusing copyright laws is a disgrace.
