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Posted on Free Speech - 10 July 2020 @ 9:35am

What That Harper's Letter About Cancel Culture Could Have Said

from the cancel-culture-and-motives dept

Earlier this week I wrote about the open letter that was published in Harper's, signed by around 150 very prominent writers/thinkers. My response to it was to heavily criticize both the premise and the specifics in the letter, and to argue that it sought to do the very thing it claimed to be against. That is, it presented itself as support for free speech and counterspeech, and against attempts to shut down speech -- and yet, almost all of the (deliberately vague) examples they pointed to were not examples of shutting down speech, but rather examples of facing consequences from speech and counterspeech itself. The open letter could -- and in many cases was -- read to basically say "we should be able to speak without professional consequences."

Some people liked my response, and some people hated it. The debate has raged on, and that's cool. That's what we should be supporting, right? More debate and speech.

Many people are referring to the letter as being about "cancel culture," even though the letter itself never uses the phrase. But everyone recognizes that the concept is what's at the core of the letter: the idea that someone will say something that "the mob" considers beyond the pale, and suddenly they're "cancelled." We'll get to how realistic that actually is shortly.

But part of the problem with the letter was that it was written in terms that could be used to both condemn overreaction by "mob" voices on Twitter and be used by certain people to say "stop criticizing my bad ideas so vociferously." It provides nothing of consequence to anyone trying to distinguish between the two, and thus when some assumed it was for the purposes of the latter, rather than the former, that should impeach the drafting of the letter itself, rather than its critics. Still, that makes the letter at best useless and at worst, capable of being used not in support of free speech, but as a tool to condemn counterspeech and consequences.

Some well meaning critics challenged my criticism of the post on a few grounds that are at least worth considering. First, was the argument that my post imputes motives to the signatories that were unfair. And I'll grant that criticism. Indeed, quite often lately, I've found that when people leap to assume the motives of others, that's often when debates and discussions go off the rails. I'm just as guilty of that as anyone else, and I should try to be better about that. But there's a flipside to that argument as well, which is that there are people out there who purposely engage in bad faith arguments, and go ballistic when you call them on that, insisting that you can't impute such bad faith into their argument based solely on the words that they spoke (though, often by ignoring nearly all of the contextual relevancy that makes their bad faith evident).

In other words, there certainly are mixed motives among the signatories, and I'd argue that some signed on in good faith in the belief that the world really is being pushed by illiberal forces that are shutting down realms of speech, but also those who just seem to be upset that people are calling out their bad ideas and they're suffering the consequences for it. I focused on the latter, when a more charitable read perhaps should have focused on -- or at least acknowledged -- the former.

And as someone who has spent decades fighting for the importance of free expression, at times at great cost to myself, I have quite a lot of sympathy for what a "good faith" reading of the letter appears to want to say. But I think the letter fails to make its case on multiple grounds, even removing the question of the motives of the signatories.

First, there's the question of how widespread "cancel culture" truly is. I would argue that it exists, but is vastly overstated -- and I'm saying this as someone who has had friends expelled from their jobs unfairly in my view following online mobs ganging up on them. I do believe that, as with any speech, it is possible to use it to galvanize actions I disagree with. But, as I said in my original writeup the details matter. Many of the claims of "cancel culture" remind me of the claims of "anti-conservative bias on social media." Lots of people insist it's true, but when you ask for examples, you get back a lot of platitudes about "look around!" and "it's obvious" and "you're blind if you can't see it!" but rarely many actual examples. And, in the few cases where examples are given, they frequently fall apart under scrutiny.

This is true of many -- though not all -- of the examples of "cancel culture." Last fall, Cody Johnston did an amusing video arguing that cancel culture isn't a thing. I'd argue it is exaggerated, and a few points it makes are also misleading, but on the whole he's got a point. Many of the examples of "cancel culture" are really just the powerful and the privileged receiving some modicum of pushback for horrific actions or statements, that maybe pushed them down a rung from the very top of the ladder, but still left them in pretty privileged positions compared to just about everyone else:

Are there more relevant examples? Perhaps. A lot of people pointed to Yascha Mounk's recent article in the Atlantic entitled Stop Firing the Innocent, and I mostly agree with that article. There are a few examples out there of people being unfairly fired in response to online mobs misinterpreting or overreacting to things. The story of David Shor in that article is certainly one that many people pointed out, and it does highlight what seems like an overreaction (Shor appears to have been fired for merely tweeting a link to a study about historical voting patterns in response to violent v. non-violent protests, and some, somewhat ridiculously, interpreted the conclusions of that study to somehow be a condemnation of some of the current protests). Another set of well known examples comes from John Ronson's book from half a decade ago, "So You've Been Publicly Shamed," which highlights a few cases of arguably unfair overreactions to minor offenses.

But, here's the thing: after lots of people (including Mounk) called out what happened to Shor (more speech), many people now agree that his firing was wrong. And so, the cycle continues. Speech, counterspeech, more counterspeech, etc. Sometimes, in the midst of all that speech, bad things happen -- such as the firing of Shor. But is that an example of cancel culture run amok, or one bad result out of millions? It is very much like our debates on content moderation. Mistakes are sometimes made. It is impossible to get it right every time. But a few "bad" examples here and there are not evidence of a widespread trend.

Also, I'm still hard pressed to see how the level here is any worse than it was a few decades ago. There may be different issues over which public shaming may occur, but it wasn't that long ago that people would be ostracized for suggesting it's okay to fall in love with someone of the same gender or someone of another race. On the whole, I'd argue that we've made a lot of progress in opening up avenues of discussion -- and while we should be concerned about the cases that go wrong, the evidence that there's some big change beyond what has happened in the past are lacking. Indeed, I feel like I remember this nearly identical debate from when I was a kid and the fight was over "too much political correctness," which is a form of the same thing.

I think it's natural for some folks to always feel that they are being treated unfairly for their beliefs, and that people overreact. It's not a new phenomenon. It's not driven by the internet or some other new idea. Indeed, as philosopher Agnes Callard tweeted, you can go back to John Stuart Mill's "On Liberty" to find him discussing "cancel culture" as well:

And, again, the details matter, and in many cases the different degrees of criticism and "cancellation" make a huge difference in whether or not the situation was just or not. The circumstances behind each of the stories matter not just in what happened but to whom and why -- and this is why the questions were raised about the signatories and their motives. In some cases it certainly seemed that at least some of them are upset that they are facing more criticism or that they may be excluded from certain privileged platforms. But not being able to publish a nonsense opinion in the NY Times op-ed section is not being cancelled or silenced. It's one thing to have a non-public figure thrust into the limelight and effectively have their career destroyed. I can see how that's a problem. That, however, is entirely different from a very public figure having a bunch of people tell them that their ideas are bad and hurting others.

And while some signatories of the letter insisted to me that they meant the letter to be about those non-public figures, the letter itself does not make that clear and, again, can be used to serve both purposes.

Indeed, a response letter that was crowdsourced and put together by an even bigger list of people (though perhaps without as many "recognizable" names) walks through each of the vague examples in the original Harper's letter and looks at the likely details. And, with the exception of the one example of David Shor -- which it describes correctly as "indefensible, and anomalous," the other examples highlight the issue here: the details have been twisted to hide situations in which people were censured for actually making huge mistakes, not for just taking a contrarian view.

And, once again, that gets at the problem of how awful the letter is: its language can be used both to defend free speech and to paper over truly awful behavior, and while some of the signatories meant it to do the former, it certainly gives the appearance of being used by others to do the latter.

One other criticism I received, along the lines of it being unfair to pin motives of some of the signatories on all of them, was this is the nature of getting a bunch of people to sign onto an open letter. By definition, those things will get watered down as more signatories have opinions, and many people will sign on without necessarily reading through the details. That's not a good excuse. Recognizing the intent of the letter and who you are joining with is part of understanding context. And, as if to prove what a silly criticism that is, take a look again at the crowdsourced letter above, also signed by a bunch of people, and worked on together as a group. It makes key points much more directly and is a much, much, much riskier letter in many ways.

The signatories call for a refusal of “any false choice between justice and freedom.” It seems at best obtuse and inappropriate, and at worst actively racist, to mention the ongoing protests calling for policing reform and abolition and then proceed to argue that it is the signatories who are “paying the price in greater risk aversion.” It’s particularly insulting that they’ve chosen now, a time marked by, as they describe, “powerful protests for racial and social justice,” to detract from the public conversation about who gets to have a platform.

It is impossible to see how these signatories are contributing to “the most vital causes of our time” during this moment of widespread reckoning with oppressive social systems. Their letter seeks to uphold a “stifling atmosphere” and prioritizes signal-blasting their discomfort in the face of valid criticism. The intellectual freedom of cis white intellectuals has never been under threat en masse, especially when compared to how writers from marginalized groups have been treated for generations. In fact, they have never faced serious consequences — only momentary discomfort.

I think that Jill Filipovic's response to the letter may be most aligned with my thinking: that cancel culture is overstated, that some of the signatories of the letter were signing on because they're upset that a wider public with a voice is criticizing them, but that there are at least a few cases of egregious overreaction to online mobbing, and sometimes that involves the loss of a job. Her argument makes some amount of sense -- that you shouldn't be fired for your bad opinions if your bad opinions have nothing to do with your job:

So yes, most of the “cancel culture” complaints are overwrought. On the long list of things worth caring about, cancel culture is very low down. Criticism is not cancelation. Conflict is not censorship. On all of these issues, the right is far, far worse (how many voices opposing the party line are at Fox, or on right-wing websites, or speaking at conservative religious colleges?). Often, the right uses this narrative of the “intolerant left” to cover for its own misdeeds and groupthink, and it’s an underhanded, bullshit tactic that too many progressives fall for.

But.

It is also true that there have been instances — many instances — where people have been fired from their jobs (and not just in media) for holding opinions that have nothing to do with their ability to perform said job, and who are fired entirely because an employer doesn’t want the PR headache.

Of course, even that is not always so black and white. If your opinions create larger problems for a company -- including costs that go beyond just giving PR a headache -- does it really make sense to just say that the companies need to shoulder that burden? But I do think it's fair to try to explore context more deeply. What is the context in which the statements are being made -- and who is making them? Is it a situation that involves speaking truth to power? Or is it a situation that involves using a position of privilege to keep down the less fortunate?

That is to say, as with so much, it's complicated.

And part of that complication is not just that different people have different motives and that mistakes are made, but that the level of "penalty" people receive differs quite a bit as well. If the original letter had legitimately focused exclusively on some of the more significant consequences, and could clearly demonstrate were out of bounds, it might have a good point. But it lumps "public shame and ostracism" in the same category as more significant retribution. And that was part of what made me think the original letter was so lame. Sure, some people were signing onto it to highlight those few egregious cases (though, again, it's unclear that those situations are new or any different than in the past), but the letter lumped in a much wider variety of things.

Another part of the complication is that as times change, our understanding and sensitivities to certain ideas shift as well. In my original piece I argue it's not evident from where I sit that the space in which ideas can be discussed is shrinking. There are so many things today that can be seen, discussed, and read that were impossible to get out there just a few decades ago, and that's incredible. That said, it is true that there are certain things that used to be more commonplace that are now much more sensitive areas. But a big part of that is actually our recognition that things which used to be considered okay (e.g., casual bigotry) are no longer considered okay. And a huge reason those are no longer considered okay is that we've opened up this wider "marketplace of ideas" to more voices, often from folks who were previously unable to share their points of view, and their persuasive speech has convinced many that what used to be deemed okay is not and, in fact, never was.

Finally, I'd argue that while it's possible that some people make innocent mistakes, and that we should try to take into account whether or not saying a truly dumb or hurtful thing was an uneducated mistake or outright maliciousness, we can and should be able to judge that by what happens next. That is, I agree with the letter writers that people shouldn't lose their job over a single innocent tweet taken out of context. But it's much, much harder to make that case for someone who doubles down, refuses to learn, refuses to investigate why their words are causing so much pain and hurt, and then attacks those who are trying to educate them on their truly awful stance.

So if I were to try to rewrite the letter to make the actual point that the authors seemed to want to make, I'd probably go with something like the following:

Free speech is a key foundational idea and value which we support. Along with that, though, we recognize that speech has consequences, and some of those consequences may include counterspeech that may lead to action. We recognize that persuasive speech that leads to action may be for things we agree with and also for things we disagree with. We are concerned about situations in which the actions and consequences of speech may unfairly and disproportionately punish people for innocent transgressions -- and how that may create unnecessary chilling effects that run counter to the ideal of free speech. Yet at the same time we recognize that this is complicated, and situations may appear differently to different people.

The world is a complicated and ever changing space. Some of that change is for good and some is for bad. There are people with all kinds of motivations out there, and it is all too easy to leap to the worst conclusions about motivations. We should all strive to be cautious in assigning motive, and we should investigate why someone said what they said before leaping to conclusions or rushing to condemn them to the level at which they'd face reprisal -- while also recognizing that there are those out there who will argue in bad faith. Distinguishing between the two is often difficult.

In many ways, the world is more free and open for debate today than in the past -- new and previously unheard voices are being heard and promoted and celebrated for the first time and we should encourage that. This open debate and discussion has also resulted in a changing societal consensus on what is, and what is not, appropriate. Quite frequently this is also for good. We are becoming more sensitive to the harms that people have faced and are reckoning with all of those, thanks in part to the robust debate and discussion about these ideas.

At the same time, in our ongoing and righteous zeal to revisit areas that were previously overlooked and underexplored, there are times when people may go too far. There are times when the nuance and details and context are not initially clear, and some people -- including ourselves -- may overreact. That overreaction often leads to consequences which, when the full situation is explored and understood, seem unfair. We should seek to be aware that this may happen, and try to avoid it. Furthermore, we should recognize that as fallible as humans are, we will sometimes discover this too late, and should seek to rectify it when we do.

The details will always matter. We should not assume simplistic narratives all of the time, when often there are mixed motivations and complex factors and variables involved. There may be situations that appear similar on the surface, but upon deeper exploration turn out to be quite different. We should be willing to explore those details and to recognize that, sometimes, people we like will face consequences for their speech for an extended pattern of truly reprehensible behavior.

However, we should leave space open for people to learn and to grow. We should recognize that a single misdeed may be innocent and should treat it as such. We should see how people respond to such feedback. At the same time, we should also recognize that a pattern and practice of questionable and hurtful behavior may suggest a person who is deliberately, and in bad faith, seeking to game the system.

This starts with us. We, who have signed this letter, have not always lived up to these ideals either. Everyone will make mistakes sometimes, and we hope to learn from them as well. We are excited about the power of new voices to be heard and join the conversation, and realize this often challenges our strongly held beliefs. We hope that, in the spirit of learning from these new voices that criticism of other views will also take on a recognition that there is room to understand and to change -- or, on the flipside -- to build stronger arguments to the contrary.

I think that approach would have made the point much better. It would acknowledge that things are often more complicated than they appear on the surface, that there are different motivations behind actions, and that sometimes speech does lead to consequences that not everyone will agree with. But, most of all, that approach acknowledges that everyone makes these kinds of mistakes at some point. The original letter framed the issue as if the signatories were the righteous believers in free speech, against the "others" out there trying to shut them down -- without any recognition that some of the signatories and the letter itself often seemed to be advocating for the silencing of others as well.

In the end: free speech is important, but like with so many things it's more complicated the deeper you explore, because free speech itself has consequences, and we should strive to understand the impact of our speech, to learn, and to expand our own thinking over time as well.

107 Comments | Leave a Comment..

Posted on Techdirt - 9 July 2020 @ 1:44pm

Now That USMCA Is In Effect... Can Congress Even Reform Section 230 Without Violating The Agreement?

from the oh,-look-at-that dept

It seems like every other day we see yet another proposal to dismantle, revoke, or otherwise undermine Section 230 of the Communications Decency Act. But doing so might actually create massive international problems. That's because, as you may recall, despite some last minute attempts to remove it, the final USMCA retained language that suggests that any signatory to USMCA must have Section 230-like laws in place to protect intermediary liability. And, while it got surprisingly little attention, the USMCA went into effect last week. And thus, any change to Section 230 may raise at least some questions about whether or not they violate the agreement.

Now, there are limitations to this provision, but it's interesting to see some people pulling their hair out that "big tech" has already blocked any possible changes to 230 via the USMCA:

But it’s hard to invest much energy in what the optimal Section 230 framework would be, since Big Tech has already solved this potential problem—in a way only they can love. Years ago, they succeeded in getting a Section 230-style provision into the reworked NAFTA, the U.S.-Mexico-Canada Agreement (USMCA). And practically everybody now incensed by the Section 230 legal immunity willingly voted to implement it in that trade agreement. That makes it much, much more difficult to change it in any way.

I find this framing fairly hilarious if you know anything about the history here. As detailed in the excellent book, Information Feudalism, it was actually the big legacy "intellectual property" industries, starting with the big pharmaceutical companies and followed quickly by Hollywood, that pushed to include things like copyright and patent rights in international trade agreements. As we've described, those industries have long focused on this form of policy laundering to get what they want.

Indeed, the DMCA itself wouldn't exist without this process. As one of the architects of that law, Bruce Lehman, publicly admitted years ago in the 1990s, when Congress refused to create a DMCA-like law, he helped architect a plan to "run to Geneva" and get the 1996 WIPO Copyright Treaty signed, which "obligated" the US Congress to then create a DMCA-like law.

I have long found this whole process to be rather disgusting: leveraging backroom deals in trade agreements, that are negotiated out of sight of the public (or public interest organizations), with heavy input from industry, and then turning around and insisting that Congress must then abide by the restrictions in those agreements or face concerns that we're not living up to our "international obligations" (the favorite phrase of those laundering policy in this manner).

It is all a big scam, of course, but since everyone else played that game in order to attack the internet, is it really any surprise that internet companies eventually sought the same sort of protections via trade agreements as well?

So, while the whole process of laundering policy this way is slimy and disgusting, there's some level of ironic enjoyment in watching those now pushing for the undermining of Section 230 (which is often being driven by behind the scenes support from Hollywood), suddenly realizing that they now are facing the exact same game plan that they spent decades pulling against the internet.

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Posted on Techdirt - 8 July 2020 @ 3:38pm

Post No Evil: Content Moderation Decisions Are Always Trickier Than You Think

from the it-gets-worse-and-worse dept

Two years ago, we told anyone who wanted to understand the impossibility of content moderation to listen to an episode of the podcast/radio show Radiolab. Obviously, content moderation questions are back in the news again, and Radiolab recently re-released the episode with some updated content. Most of it is the same, but there's some more at the end to relate it to the latest news with the various attacks on social media coming from the president, the DOJ, and Congress.

Once again, I cannot recommend anything more than listening to this entire discussion. It's full of great examples of the impossible nature of content moderation. And, it especially highlights why the various proposals brought forth by Congress that say that social media companies need to have explicit rules for what is and what is not allowed is simply not practical in the real world, where there are so many edge cases, and so many times where the policy needs to be adapted due to a new edge case. Here's just a little bit of the transcript to whet your appetite for the whole damn thing. It's an early example in the story, highlighting the difficulty of dealing with breast feeding pictures under its policy:

[NEWS CLIP: A social networking website is under fire for its policy on photos of women breastfeeding their children.]

SIMON: Big time.

STEPHANIE MUIR: 12,000 members participated, and the media requests started pouring in.

[NEWS CLIP: The Facebook group called, "Hey Facebook: Breastfeeding is Not Obscene.]

STEPHANIE MUIR: I did hundreds of interviews for print. Chicago Tribune, Miami Herald, Time Magazine, New York Times, Washington Post ...

[ARCHIVE CLIP, Dr. Phil: You know, the internet is an interesting phenomenon.]

STEPHANIE MUIR: ... Dr. Phil. It was a media storm. And eventually, perhaps as a result of our group and our efforts, Facebook was forced to get much more specific about their rules.

SIMON: So for example, by then nudity was already not allowed on the site. But they had no definition for nudity. They just said no nudity. And so the Site Integrity Team, those 12 people at the time, they realized they had to start spelling out exactly what they meant.

KATE KLONICK: Precisely. All of these people at Facebook were in charge of trying to define nudity.

FACEBOOK EMPLOYEE: So I mean yeah, the first cut at it was visible male and female genitalia. And then visible female breasts. And then the question is well, okay, how much of a breast needs to be showing before it's nude? And the thing that we landed on was, if you could see essentially the nipple and areola, then that's nudity.

SIMON: And it would have to be taken down. Which theoretically at least, would appease these protesters because, you know, now when a picture would pop up of a mother breastfeeding, as long as the child was blocking the view of the nipple and the areola, they could say, "Cool, no problem."

KATE KLONICK: Then you start getting pictures that are women with just their babies on their chest with their breasts bare. Like, for example, maybe baby was sleeping on the chest of a bare-breasted woman and not actively breastfeeding.

FACEBOOK EMPLOYEE: Okay, now what? Like, is this actually breastfeeding? No, it's actually not breastfeeding. The woman is just holding the baby and she has her top off.

JAD: Yeah, but she was clearly just breastfeeding the baby.

ROBERT: Well, maybe just before.

SIMON: Well, I would say it's sort of like kicking a soccer ball. Like, a photo of someone who has just kicked a soccer ball, you can tell the ball is in the air, but there is no contact between the foot and the ball in that moment potentially. So although it is a photo of someone kicking a soccer ball, they are not, in fact, kicking the soccer ball in that photo.

ROBERT: [laughs]

JAD: [laughs] That's a good example.

SIMON: And this became the procedure or the protocol or the approach for all of these things, was we have to base it purely on what we can see in the image.

KATE KLONICK: And so they didn't allow that to stay up under the rules, because it could be too easily exploited for other types of content, like nudity or pornography.

FACEBOOK EMPLOYEE: We got to the only way you could objectively say that the baby and the mother were engaged in breastfeeding is if the baby's lips were touching the woman's nipple.

SIMON: So they included what you could call, like, an attachment clause. But as soon as they got that rule in place ...

FACEBOOK EMPLOYEE: Like, you would see, you know, a 25-year-old woman and a teenage-looking boy, right? And, like, what the hell is going on there?

KATE KLONICK: Oh, yeah. It gets really weird if you, like, start entering into, like, child age. And I wasn't even gonna bring that up because it's kind of gross.

FACEBOOK EMPLOYEE: It's like breastfeeding porn.

JAD: Is that a thing?

ROBERT: Are there sites like that?

SIMON: Apparently. And so this team, they realized they needed to have a nudity rule that allowed for breastfeeding but also had some kind of an age cap.

FACEBOOK EMPLOYEE: So -- so then we were saying, "Okay. Once you've progressed past infancy, then we believe that it's inappropriate."

SIMON: But then pictures would start popping up on their screen and they'd be like, "Wait. Is that an infant?" Like, where's the line between infant and toddler?

FACEBOOK EMPLOYEE: And so the thing that we landed on was, if it looked like the child could walk on his or her own, then too old.

SIMON: Big enough to walk? Too big to breastfeed.

ROBERT: Oh, that could be 18 months.

JAD: Yeah, that's like a year old in some cases.

SIMON: Yeah. And, like, the World Health Organization recommends breastfeeding until, you know, like, 18 months or two years, which meant there were a lot of photos still being taken down.

KATE KLONICK: Within days, we were continuing to hear reports from people that their photographs were still being targeted.

SIMON: But ...

[NEWS CLIP: Facebook did offer a statement saying ...]

FACEBOOK EMPLOYEE: You know, that's where we're going to draw the line.

Suffice it to say, that is not, in fact, where Facebook drew the line. Indeed, just last year we wrote about the company still having issues with drawing the line around this particular issue.

So if you want to talk intelligently about these issues, you should first listen to the Radiolab broadcast. It's only a little over an hour, and well worth your time:

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Posted on Techdirt - 8 July 2020 @ 12:02pm

Why Does Richard Blumenthal Always Feel The Need To Lie About Section 230?

from the it's-a-bad-trait dept

Richard Blumenthal has spent years trying to undermine Section 230 of the CDA. Unlike some Senators who have only just jumped onto the silly, counterproductive bandwagon, Blumenthal has been mad about 230 since long before he was even a Senator. Back in 2008, when he was Connecticut's ambitious grandstanding Attorney General, he attacked Craigslist because people had found some ads for sex work on the site. Again, this was protected by Section 230, so Blumenthal just kept threatening Craigslist until it finally made a change: rather than allowing its adult ads to be placed for free (as it had in the past), it required payment with a credit card, which Craigslist (quite reasonably) said would likely discourage more sketchy ads, and would leave a paper trail for law enforcement for any illegal activity. Blumenthal initially celebrated this victory... before turning around and grandstanding again two years later... that Craigslist was now "profiting" off of sex work because it was charging for those ads (ignoring that it only did so because he pressured them, even though he knew he was limited by 230).

Since getting elected to the Senate, Blumenthal has kept up this weird infatuation with hating the internet. He was also the lead Democratic sponsor on SESTA (which became FOSTA), the bill to chip away at Section 230, which has now been seen to make it more difficult for law enforcement to track down sex traffickers, and has put many women at risk.

Indeed, in the run-up to that bill passing, perhaps the most frustrating thing was that Blumenthal has a weird penchant to simply lie about Section 230 and what it did and how it worked. And then after the bill was passed, he flat out lied about what his own bill actually did. In a normal society, you might think that maybe journalists should call him on that.

Now, with his dangerous EARN IT Act being voted out of committee, Blumenthal is back to his old tricks. As reported by Newsweek, during last week's markup, Blumenthal made some statements about Section 230 that are simply untrue. Indeed, they're part of my omnibus post on wrong things people say about Section 230:

Blumenthal stood by the Act's design, saying: "There is no reason for these platforms to have blanket immunity, a shield against any accountability that is not enjoyed by any other industry in the same way."

Pretty much all of that is wrong. They do not have "blanket immunity." They have a narrowly limited immunity for (1) content they didn't create, and (2) for moderation choices they make -- not including any violations of federal law (which is what the EARN IT Act covers) or intellectual property. In other words, whatever immunity Section 230 does cover, it doesn't even cover the very thing that the Act Blumenthal is praising is focused on.

Second, the line about 230 being a shield "that is not enjoyed by any other industry in the same way" is also nonsense. Section 230 applies to every website. And these days, pretty much every industry is online and everyone has a website. Section 230 protects them all. It is not a special protection for one industry. And, since most of Section 230 is really just a procedural out for bogus litigation that would be barred under the 1st Amendment, I might want to remind Senator Blumenthal that everyone is also protected by the 1st Amendment.

But it really does raise the question: why does Blumenthal always need to misrepresent Section 230. I get that it helped him jump up from Attorney General to Senator by falsely attacking a website that was protected by 230 and lying about it, but dude, leave well enough alone. You've done enough damage already.

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Posted on Free Speech - 8 July 2020 @ 9:31am

Harper's Gives Prestigious Platform To Famous Writers So They Can Whine About Being Silenced

from the freedom-from-consequences-is-not-free-speech dept

There's a slightly bizarre Letter on Justice and Open Debate that Harper's Magazine is publishing, signed by a long list of famous people (many of whom I respect, and plenty of whom I think are terribly entitled wannabe "controversial" intellectuals who are really just assholes). The framing of the letter is one I've heard quite a lot of late: concerns that there is some sort of "illiberal attack on free speech," in which certain individuals and their ideas are no longer even allowed. It's the more intellectual argument against so-called "cancel culture." And, yes, there are examples of people being shut down for expressing their ideas, but it is much less common than people would have you believe. In many cases, what people are complaining about is not that their speech is being shut down, but that they are facing consequences for their speech being ridiculous.

There are few things more misunderstood than the distinction between speech and consequences. Indeed, all too frequently people argue that consequences from speech are attempts to stamp out free speech, and just as common is the idea that actual attempts to silence free speech (e.g., SLAPP defamation lawsuits) are just "consequences" of speech. Neither is accurate. Attempts to stop free speech are attempts to use state power (such as the courts) to stop people from being able to express themselves. But people saying your ideas are bad and venerable institutions shouldn't amplify them is not an attack on free speech or open inquiry. It's a recognition that not all ideas are equal, and not all ideas deserve the kind of escalation and promotion that some speakers wish they had.

This goes back to two recent discussions we've had here on Techdirt. First, a discussion about the differences between moderation, discretion, and censorship along with a followup on editorial discretion, and the debate over the NY Times publishing Tom Cotton's op-ed about sending in the military in response to the possibility of violence at mostly-peaceful protests. There were a bunch of people who responded to criticism of the Times by claiming it was an attack on speech, which was utter nonsense. If the NY Times chooses not to publish something (as it does every damn day) that's not censorship and it's not shutting down debate of difficult ideas. It's just editorial discretion. The fact that the NY Times eventually forced out the editor who made the bad decision to publish Cotton's piece was not an attack on free speech but consequences for doing a bad job. That's consequences for speech, and not censorship.

Back to the open letter at hand. It seems to confuse these concepts greatly. I agree that we should be vigilant and concerned about attacks on free speech, but almost nothing described in the letter is an actual attack on free speech.

The free exchange of information and ideas, the lifeblood of a liberal society, is daily becoming more constricted.

First off, hogwash. There are more places and ways to speak your mind than ever before, and the free exchange of information and ideas is more available and accessible to all sorts of voices than ever before in history. The idea that it's "more constricted" has no basis in reality. There are so many different ways to get ideas out there today, and that has actually enabled tons of previously suppressed voices to speak out loudly and clearly -- even if sometimes it's to point out that the supposed wisdom of others is anything but. There is no real evidence of any "constriction." There is evidence that many people are utilizing their newfound voices and ability to express themselves to show that the emperor has no clothes when it comes to some of the ideas presented by the old guard.

While we have come to expect this on the radical right, censoriousness is also spreading more widely in our culture: an intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty.

With so many famous and serious authors signing onto this letter, I have to call out the use of the word "censoriousness". This word is commonly misused and misunderstood. It does not mean, as many assume, prone to censorship. That word is "censorial." Censorious actually means hypercritical of others, not trying to force them into silence. Given the literary nature and stature of the signatories of this letter, I would assume that those who wrote this (1) know this and are actually using the word correctly, but know full well that (2) most readers will assume the other, mistaken, interpretation of the word.

As to the larger point of this sentence, it is still, itself, quite problematic. First off, "public shaming" and "ostracism" are literally examples of counterspeech and open debate. In other words, this sentence appears to be complaining about the very thing the authors claim to be supporting: counterspeech. Public shaming and ostracism are the consequences of speech that a group feels is ridiculous, problematic, dangerous or otherwise not worth spreading widely. That's the opposite of being censorial. It is the opposite of shutting down speech. It is literally people speaking up to explain why those who hold odious views should be shamed for those views. It is a form of counterspeech and consequences from that counterspeech. On top of that it is an attempt to encourage bodies that host, promote, and elevate speech to think carefully about which speech deserves it.

That is quite different than actually censoring such speech and suggesting that no one should ever be allowed to say what they want anywhere. It is saying if you have dumb ideas, people may think you're dumb, and may ask why others are elevating those dumb ideas. The protests are not to say you can't speak, but rather to ask "why is this speech being held up as insightful or praiseworthy?"

It is only on the very final point of this sentence that I agree with the authors. It is, indeed, a problem when we try to dissolve complex policy issues "in a blinding moral certainty," and yet... that also seems to be exactly what the authors of this very letter are doing. They are saying that it is morally unconscionable that some of them and their friends have been censured (not censored) for their non-serious ideas. And that is fundamentally a refusal to recognize the complexity of how speech, counterspeech, and consequences work with a "moral certainty" that their own august voices being shunned and shamed must be bad.

We uphold the value of robust and even caustic counter-speech from all quarters.

Unless it includes public shaming or consequences for your in-group speech, apparently. Indeed, this is the most frustrating thing about this letter. It seeks to do to others exactly what it, itself is complaining about.

But it is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought.

Yes, via counterspeech. And, again, the complaint is not that one is allowed to speak wacky ideas, but rather that those ideas are being hosted, elevated, or held up as special when they are in fact trash.

More troubling still, institutional leaders, in a spirit of panicked damage control, are delivering hasty and disproportionate punishments instead of considered reforms.

This is a complaint about consequences of speech, not speech. It is a complaint about how people react to the counterspeech the authors falsely claim to be so supportive of.

Then comes the list of examples -- none linked, none with details.

Editors are fired for running controversial pieces; books are withdrawn for alleged inauthenticity; journalists are barred from writing on certain topics; professors are investigated for quoting works of literature in class; a researcher is fired for circulating a peer-reviewed academic study; and the heads of organizations are ousted for what are sometimes just clumsy mistakes.

With the possible exception of public schools (which have more restrictions as government entities), all of these appear to be about the actions of private organizations making decisions based on counterspeech, and presenting speakers with the consequences of speech that many have deemed (often for very good reasons, though not always) unworthy of praise, promotion or elevation.

Read that sentence again carefully. What the signatories here seem to be requesting is not more free speech. Nor is it more counterspeech (indeed, it's an attack on counterspeech). They appear to be asking for freedom from consequences for their own speech. Please don't publicly shame us or make our bosses rethink our employment for our speech, no matter how bad it is. That is not a pro-free speech stance. It is a anti-consequences stance, and it's truly disappointing to see many of the signatories endorse this.

Whatever the arguments around each particular incident, the result has been to steadily narrow the boundaries of what can be said without the threat of reprisal.

The first clause of this sentence is doing a lot of heavy lifting. The arguments matter. The arguments are the counterspeech. The arguments are the speech that the signatories of this letter seem so uncomfortable with. The arguments have been persuasive. That's why these signatories are so upset. The counterspeech has been effective. It has resulted in consequences as institutions have recognized that maybe they shouldn't be employing people with bad ideas, or promoting and elevating those ideas.

And, again, it is fundamentally ridiculous and ahistorical to argue that the boundaries of what can be said have narrowed. Honestly, you do not have to go back very far to find examples of topics of conversation that were fundamentally taboo and are now widespread and common. And many of those new ideas have resulted in massive, important social change: civil rights and civil liberties now exist in more meaningful forms than they ever did before because of people speaking out. The ability of LGBTQ+ people to marry whom they love coming just decades after it was literally illegal to do so is a result of more people being able to speak out. The ability of the Black Lives Matter movement to rally so many people in support of their cause and pull the curtains back on centuries of institutional, systemic racism is a result of more people being able to speak out.

The idea that there's been some narrowing of ideas is nonsense. These people are getting criticized for their bad ideas and their response is to play victim and pretend that the space in which they can speak has narrowed. They're full of shit.

We are already paying the price in greater risk aversion among writers, artists, and journalists who fear for their livelihoods if they depart from the consensus, or even lack sufficient zeal in agreement.

Oh, come on. Spare me the sob story. Go down the list of signatories. Many are incredibly famous, are regularly published in the top publications, and often appear on TV. They have no fear for their livelihoods. And trust me, whatever "contrarian" ideas they claim they're not able to share are, in fact, still being shared widely. There are all sorts of ways in which they get to express their viewpoints, and they do. Getting criticized for those ideas is counterspeech -- the the thing they claim to be supporting. They're just playing the victim.

This stifling atmosphere will ultimately harm the most vital causes of our time. The restriction of debate, whether by a repressive government or an intolerant society, invariably hurts those who lack power and makes everyone less capable of democratic participation.

If the problem was a repressive government actually engaged in censorship, I would agree wholeheartedly. Yet, note that in their list of examples they do not provide a single one that involves a repressive government. Rather they only present examples of private entities making decisions (consequences) based on counterspeech. Counterspeech which these cowards pretend they support.

The way to defeat bad ideas is by exposure, argument, and persuasion, not by trying to silence or wish them away.

We agree. And yet, the only ones trying to silence anyone here are those in this letter, saying that public shaming is somehow beyond the pale. It's almost as if they don't really want "argument and persuasion" while pretending that's exactly what they do want. If they believe that the public shaming (counterspeech) is bad, then they should go right ahead and use argument and persuasion to show why it's actually bad, without claiming it's an unfair attack on their speech. Inasmuch as this letter attempts to do so, it fails. They should recognize that if their arguments suck -- as they often do -- people nowadays are less afraid to call that out.

We refuse any false choice between justice and freedom, which cannot exist without each other.

A meaningless, empty sentence.

As writers we need a culture that leaves us room for experimentation, risk taking, and even mistakes.

Indeed. On this I agree. But if you look around, there are so many wonderful experiments and plenty of risk taking going on. More than ever before. That's not the problem. The problem is this privileged bunch of elites are upset that people are now actually willing to call out their bad ideas as bad.

We need to preserve the possibility of good-faith disagreement without dire professional consequences.

And that gives away the ballgame: "we want to present bad ideas without losing our readers or our jobs." That's just not how it works. These people have spent their lives protected in ivory towers, and are now facing real free speech from people who are outside of their privileged bubble, and are freaking the fuck out about it.

If we won’t defend the very thing on which our work depends, we shouldn’t expect the public or the state to defend it for us.

Sure, but stop pretending consequences and counterspeech are anti-speech. You're not actually the brave truth tellers you want to be. You're coming off as privileged elitists who are being challenged on ideas for the first time. The signatories are so quick to clutch pearls about people actually calling out bad ideas as bad, and saying that maybe institutions who have editorial discretion should be a bit more discretionary, that they seem to think facing consequences for speech is somehow anti-free speech. It's not.

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Posted on Techdirt - 7 July 2020 @ 9:33am

Pompeo Says US May Ban TikTok; It's Not Clear That It Can

from the or-should dept

New day, new nonsense. Secretary of State Mike Pompeo did his Pompeo thing and went on Fox News saying that the US is looking at banning apps from China in the US, with a focus on TikTok, the incredibly popular social media app that is owned by the Chinese firm ByteDance:

The United States is "looking at" banning Chinese social media apps, including TikTok, Secretary of State Mike Pompeo said Monday.

Pompeo suggested the possible move during an interview with Fox News' Laura Ingraham, adding that "we're taking this very seriously."

Pompeo was asked by Ingraham whether the United States should be considering a ban on Chinese social media apps, "especially TikTok."

"With respect to Chinese apps on people's cell phones, I can assure you the United States will get this one right too, Laura," he said. "I don't want to get out in front of the President [Donald Trump], but it's something we're looking at."

It's difficult to know where to start on this, but let's at least start by admitting that TikTok has some sketchy issues. We've talked about how its content moderation practices may be driven from Beijing's moral stance (despite denials) and there were recent claims from someone associated with anonymous claiming to have reverse engineered TikTok, saying that it's a security disaster (it's not at all clear how accurate that is). At the same time, India just banned TikTok and other Chinese apps over security fears.

So there may be some legitimate concerns here, though a lot of that is based on innuendo and rumor rather than concrete evidence. And, again, we've seen this game before. The US spent years spreading security panic about Chinese networking equipment from companies like Huawei and ZTE, without ever actually proving any problems with the hardware (in fact, a massive US government investigation turned up nothing).

But, as we've noted, it's often been difficult to tell where the complaints against Chinese networking hardware end, and where the lobbying from American telco equipment firms like Cisco begin, as there appears to be substantial overlap. There's no evidence to say that's true with this new story of an app ban, but it should be noted that Mark Zuckerberg is clearly very, very worried about TikTok, so the US banning the company that seems to be a favorite of the younger generation certainly wouldn't be protested very much by Facebook.

That said, there are real legal questions about whether or not the US even could ban TikTok in the US. Under what law would they do so? While owned by ByteDance in China, TikTok has spent the last few years separating TikTok's business from ByteDance, hiring a ton of people in the US and insisting that data from TikTok users is kept in the US (or Singapore) and not in China. ByteDance has also considered selling off TikTok to avoid these concerns.

So it seems incredibly likely that any effort to bar TikTok would raise a whole bunch of legal concerns -- starting with a basic 1st Amendment concern. The US government can't just say "you can't use that social media app." That may be how things work in China or India, but not in the US. And, of course, it would likely set off a chain reaction elsewhere as well. China already bans most major US apps and services, but we're still dealing with a pointless trade war that would only be exacerbated by such a move.

There are plenty of reasons to be concerned about TikTok, it's connections to China, and the security of the app. But none of that means that the US government has the right to just ban it. While Trump may want to pretend he's a dictator, and Pompeo may want to pretend he works for a dictator, that's not how any of this works.

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Posted on Techdirt - 6 July 2020 @ 3:28pm

Lawsuit & Bi-Partisan Group Of Senators Seek To Push Back On Trump Administration's Attempt To Corrupt The Open Technology Fund

from the do-something-good-marco dept

Last month we wrote about how the newly appointed head of the US Agency for Global Media (USAGM) had cleaned house, getting rid of the heads of the various organizations under the USAGM umbrella. That included Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia, Middle East Broadcasting... and the Open Technology Fund. The general story making the rounds is that Pack, a Steve Bannon acolyte, planned to turn the famously independent media operations into a propaganda arm for the Trump administration. Leaving side the concerns about why this is so dangerous and problematic on the media side, we focused mostly on the one "different" organization under the USAGM banner: the Open Technology Fund.

OTF is incredibly important to a functioning and open internet -- especially one where freedom and privacy to communicate can work around the globe, with a focus on funding audited, open source technologies. Last week, Vice had a detailed story about what it describes as "the plot to kill the Open Technology Fund." In it, it notes that Pack wants OTF to fund two apps that are not open source, Freegate and Ultrasurf. While both claim to be about helping circumvent internet censorship, most activists don't trust those apps. Indeed, it notes that the developer behind Ultrasurf agreed to a security audit by the US government, but then threatened the company who did the audit with legal action if it made the report public:

VICE News has learned that Ultrasurf recently underwent a security audit to assess if the app contained any critical security flaws. The audit was conducted at the request of the State Department as a condition of funding, but the report has not been published.

This was because the developer of Ultrasurf wanted a reference to “a high-severity bug” removed from the report, according to a source at the company that conducted the audit, Cure53.

The developer, who uses the pseudonym Clint to protect his family in China, subsequently threatened Cure53 with legal action if they ever published the report. Clint told VICE News the audit was “sort of like a trap” and that the report was not made public because it would reveal too much about his source code.

Let's be clear: if publishing a security audit about your software will reveal too much about your source code your app is not secure.

So why would OTF under Pack's command suddenly be interested in funding these closed source, highly questionable apps? You guessed it:

Mainly because prominent individuals with strong links to Pack have spent the better part of the last decade repeatedly pushing these apps to receive tens of millions of dollars in funding from the U.S. government, without providing any evidence that the technology will succeed.

The two loudest proponents of these technologies are Michael Horowitz, a former director of the Project for International Religious Liberty at the Hudson Institute, and Katrina Lantos Swett, the president of the Lantos Foundation Human Rights and Justice.

The former heads of OTF told Vice that they received a threatening call from Swett basically saying that if OTF didn't fund these questionable apps, she would lean on Pack to retaliate against OTF:

In March, around the time Trump decided to pressure Republicans in the Senate to confirm Pack’s appointment, Libby Liu, OTF’s CEO, and Laura Cunningham, OTF’s president, got a phone call from Swett and her colleagues to discuss funding for large-scale circumvention tools to help people in China bypass the Great Firewall.

Swett described it as “a very professional and a very cordial call,” but that’s not how Liu and Cunningham remember it.

“It was quite threatening,” Cunningham told VICE News. “They said that they were very close with Michael Pack [and] told us that there was a lot of disappointment that we were not funding the most effective circumvention tools out there. Their advice was that if we wanted to make sure we stayed in CEO Pack’s good graces, that we needed to reorient our funds immediately to support those technologies.”

Liu says Swett and her colleagues “lectured us, you know, round robin-style, and threatened us.”

Vice also shows Horowitz showing up on Steve Bannon's radio show last month directly saying that Libby Liu should be fired (though he mistakenly claims she's part of Radio Free Asia, which used to house OTF, but OTF has been spun out separately from RFA for a while now):

In that video, you see Bannon ask Horowitz to repeat the name of who he wanted fired, and apparently write down Liu's name while saying "okay." Days later, Liu and Cunningham were both fired by Pack (incredibly, Liu had already resigned, but Pack doubled down and fired her anyway).

In response, OTF itself and the board members of many of the USAGM organizations have now sued Michael Pack, arguing that he has no right to fire people:

Although funded by Congress through grants administered by the Agency, the four organizations targeted by Mr. Pack are not part of the government. Their employees are not government employees. They are private, nonprofit organizations with their own leadership and independent boards of directors. That is by design. Their mission, collectively, is to promote the free flow of information worldwide, especially in countries where authorities restrict freedom of expression. They do this through global efforts to combat online censorship and news broadcasts in 61 different languages, reaching 400 million people each day. But they can only be effective in countering disinformation and censorship if they are rightly perceived as independent, professional, and fact-driven—not as official mouthpieces for some partisan agenda. To ensure the integrity and credibility of this vital work, their independence from political interference is protected by a strict “firewall” embodied in statutes, regulations, and binding contract provisions. Mr. Pack’s actions this past week constitute the most egregious breach of that firewall in history.

[....]

Mr. Pack’s actions are unlawful in at least two critical respects. First, with respect to Open Technology Fund—an independent nonprofit dedicated to advancing global Internet freedom— Packlacks any legal authority whatsoever to remove its officers or directors. The statutory authority and bylaws on which Mr. Pack purported to rely do not remotely confer any such authority.Second, although Pack does have limited statutory authority with respect to personnel decisions at the other three organizations, that authority is strictly constrained by statute, regulation, and contract. With respect to all four organizations—Radio Free Europe, Radio Free Asia, the Middle East Broadcasting Networks, and Open Technology Fund—Mr. Pack’s attempt to remove the organizations’ officers and directors across the board constitutes an impermissible breach of the “firewall.” So does his attempt to freeze funds. Indeed, in each of its grant agreements with these organizations, the Agency has pledged to honor these statutory and regulatory obligations and is prohibited from “tak[ing] any . . . action that may tend to undermine” the organizations’ “journalistic credibility or independence.”Mr. Pack’s actions impermissibly breach the “firewall.” It is hard to conceive of a more serious breach of the organizations’ legally protected independence than the wholesale decapitation of their leadership by an ideologically-oriented maker of political films, installed by the President for the stated purpose of altering the organizations’ content.

On top of that, it seems that these moves by Pack to clean house have at least raised surprisingly bi-partisan concerns in Congress. A group of Senators led by Marco Rubio have sent a letter to Pack demanding an explanation and making it clear that USAGM is supposed to be independent of politics.

As the United States faces global challenges in the information space, it cannot afford to invest in an enterprise that denigrates its own journalists and staff to the satisfaction of dictators and despots, nor can it be one that fails to live up to its promise of providing access to a free and independent press. Congress set up these networks, and its governance structure at USAGM, to preserve the grantees’ independence so they can act as a bulwark against disinformation through credible journalism.

We urge you to respect the unique independence that enables USAGM’s agencies and grantees to help cultivate a free and open world. Given the bipartisan and bicameral concern with recent events, we intend to do a thorough review of USAGM’s funding to ensure that United States international broadcasting is not politicized and the agency is able to fully and effectively carry out its core mission.

Beyond Rubio, the letter is signed by some fairly powerful Senators on both sides of the aisle: Dick Durbin, Lindsey Graham, Pat Leahy, Jerry Moran, Susan Collins and Chris Van Hollen. Will it convince Pack to back off? Who knows, but at least it's nice to see that in this one very important area, some Senators have the backbone to push back against what appears to be a very swampy, corrupt move by this administration.

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Posted on Techdirt - 6 July 2020 @ 9:30am

New EARN IT Act Creates An Insane New Dilemma: Either Encrypt All Or Spy On All

from the this-seems-counterproductive dept

Last week, as predicted, the Senate Judiciary Committee voted unanimously to replace the original EARN IT Act, with a new one. As part of the markup, they also voted to approve Senator Patrick Leahy's amendment which some might read to say that EARN IT cannot be used to block encryption -- but the reality is a lot more complicated. As I'll explain, this new bill is terrible in a different way than the old bill: it will create a new dilemma in which internet services will either feel compelled to encrypt everything or in which the only way you'll be able to use any internet service is if you hand over a ton of personal information to the service provider -- potentially putting your privacy at extreme risk.

First lets acknowledge an oddity about this new bill. Both bills involve the creation of a commission to come up with "best practices" in trying to stop "child sexual abuse material" or CSAM (the concept formerly known as child porn). In the old bill, if sites didn't follow the commission's best practices, they could lose their Section 230 protections. This resulted in fears that the commission would outlaw encryption as a "best practice." The new bill retains the commission, but for no recognizable purpose. Instead, it does away with the pretense and just says that a bunch of sites should lose Section 230 protections no matter what. It seems quite odd to first say "we need a commission to determine best practices" and then on a second pass say that before the commission has done anything we're just going to make massive changes to Section 230 based on... nothing at all. No evidence saying that this would create better outcomes. No evidence that Section 230 is a problem with regards to CSAM. Just... nothing.

Specifically, the new bill makes a change to Section 230 that looks similar to the change that was made with FOSTA, saying that you don't get 230 protections if you advertise, promote, present, distribute, or solicit CSAM. But here's the thing: CSAM is already a federal crime and all federal crimes are already exempted from Section 230. On top of that, it's not as if there are a bunch of cases anyone can trot out as examples of Section 230 getting in the way of CSAM prosecutions. There's literally no evidence that this is needed or will help -- because it won't.

As we've detailed before, the real scandal in all of this is not that internet companies are facilitating CSAM, but that the DOJ has literally ignored its Congressional mandate to go after those engaged in CSAM production and distribution. Congress tasked the DOJ with tackling CSAM and the DOJ has just not done it. The DOJ was required to compile data and set goals to eliminate CSAM... and has just not done it. That's why it's bizarre that EARN IT is getting all of the attention rather than an alternative bill from Senators Wyden, Gillibrand, Casey and Brown that would tell the DOJ to actually get serious about doing its job with regards to CSAM, rather than blaming everyone else.

But digging into the details, the real problem here is that, as structured, the new EARN IT Act would be a disaster in trying to achieve the goals the sponsors have set out for it. First off, thanks to the addition of Senator Leahy's Amendment, some may see the bill as one that effectively requires encryption to avoid liability for CSAM. Even that's not totally clear, however. While you can read Leahy's amendment to say that encryption is protected, the actual structure of the final bill punts many issues to state law, and that means having to comply with 50 different state laws. Some, like Illinois, have lower standards for the mens rea regarding CSAM, and the worry is that we won't know whether or not offering end-to-end encryption would be seen as violating state laws until long and costly cases go through their lengthy process.

Either way, this weird CSAM carveout from Section 230 is somewhat equivalent to the moderator's dilemma that other attempts to change Section 230 create. Because most of those other reforms put in place a "knowledge" standard, it gives many sites a reason to never look at the content on their platform. In this case, due to the explicit call out saying that encryption isn't impacted, that would effectively say that if you want to keep 230 protections, you should encrypt absolutely everything. Which, ironically, is the exact opposite of what Attorney General Bill Barr has been asking for.

But, as with the moderator's dilemma, there's also a flipside (if you don't want to ignore everything, then you have to greatly restrict what you allow through). Under the new EARN IT, the flipside is that the government more or less says that you are now responsible for being able to track and identify anyone on your service who is not using encryption -- meaning you would need to carefully verify every user of your platform. No more simple signups. No more anonymity. And, incredibly, this would mean that sites would need to collect a ton of data on every user. Want to use this new service? First submit your phone number, driver's license, etc.

At a time when people are saying they trust big internet companies less and less with their data, why would Senators Graham, Blumenthal, Feinstein, and Hawley (HAWLEY!?!?) be encouraging websites to collect even more (and more intrusive) data on all their users?

Since this is somewhat different than the traditional moderator's dilemma, it might be called the "censor's dilemma" or possibly the "middleman's dilemma," in that this is even more tied to the government's demand that websites block certain content entirely, which puts them in the role of a government middleman or censor (which, not coincidentally, would raise serious constitutional issues with the EARN IT Act turning private entities into state censors).

Either way it is difficult to see how these two outcomes are what Congress (or, for that matter, the DOJ) actually wants:

  • Much greater encouragement for websites to encrypt everything
  • Much greater encouragement for websites to demand much more personal and private information on users.
And yet, thanks to Congress' standard bungling, that's what we have with the current EARN IT Act. And while it might be nice if the law actually did encourage more encryption, don't pin your hopes on that. As noted above, it's not entirely clear that it really does lead to that outcome, and we might not know until after a whole bunch of litigation. Furthermore, if that is is the end result, it will almost certainly lead to a different kind of backlash and support for even worse laws that seek to blow up encryption through other methods.

In short: the EARN IT Act is bad. At best it might encourage more encryption, but it would also create a whole host of unintended consequences, including much less privacy and no more anonymity on many websites. It's difficult to see how that accomplishes any of the goals of the bill's supporters.

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Posted on Techdirt - 2 July 2020 @ 7:39pm

Research Libraries Tell Publishers To Drop Their Awful Lawsuit Against The Internet Archive

from the speak-up dept

I've seen a lot of people -- including those who are supporting the publishers' legal attack on the Internet Archive -- insist that they "support libraries," but that the Internet Archive's Open Library and National Emergency Library are "not libraries." First off, they're wrong. But, more importantly, it's good to see actual librarians now coming out in support of the Internet Archive as well. The Association of Research Libraries has put out a statement asking publishers to drop this counter productive lawsuit, especially since the Internet Archive has shut down the National Emergency Library.

The Association of Research Libraries (ARL) urges an end to the lawsuit against the Internet Archive filed early this month by four major publishers in the United States District Court Southern District of New York, especially now that the National Emergency Library (NEL) has closed two weeks earlier than originally planned.

As the ARL points out, the Internet Archive has been an astounding "force for good" for the dissemination of knowledge and culture -- and that includes introducing people to more books.

For nearly 25 years, the Internet Archive (IA) has been a force for good by capturing the world’s knowledge and providing barrier-free access for everyone, contributing services to higher education and the public, including the Wayback Machine that archives the World Wide Web, as well as a host of other services preserving software, audio files, special collections, and more. Over the past four weeks, IA’s Open Library has circulated more than 400,000 digital books without any user cost—including out-of-copyright works, university press titles, and recent works of academic interest—using controlled digital lending (CDL). CDL is a practice whereby libraries lend temporary digital copies of print books they own in a one-to-one ratio of “loaned to owned,” and where the print copy is removed from circulation while the digital copy is in use. CDL is a practice rooted in the fair use right of the US Copyright Act and recent judicial interpretations of that right. During the COVID-19 pandemic, many academic and research libraries have relied on CDL (including IA’s Open Library) to ensure academic and research continuity at a time when many physical collections have been inaccessible.

As ARL and our partner library associations acknowledge, many publishers (including some involved in the lawsuit) are contributing to academic continuity by opening more content during this crisis. As universities and libraries work to ensure scholars and students have the information they need, ARL looks forward to working with publishers to ensure open and equitable access to information. Continuing the litigation against IA for the purpose of recovering statutory damages and shuttering the Open Library would interfere with this shared mutual objective.

It would be nice if the publishers recognized this, but as we've said over and over again, these publishers would sue any library if libraries didn't already exist. The fact that the Open Library looks just marginally different from a traditional library, means they're unlikely to let go of this stupid, counterproductive lawsuit.

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Posted on Free Speech - 2 July 2020 @ 3:48pm

That Was Quick: Appellate Court Says Simon & Schuster Not Subject To Prior Restraint Order Over Mary Trump's Book; But Fight's Not Over Yet

from the free-speech-v.-prior-restraint dept

Yesterday we wrote about how Charles Harder, representing the President's brother, was able to get a highly questionable temporary restraining order (TRO) against Mary Trump and Simon & Schuster not to publish Mary Trump's book "Too Much and Never Enough, How My Family Created the World’s Most Dangerous Man." We noted that the prior restraint seemed unlikely to survive appellate scrutiny, and within a few hours it was already greatly limited. NY Appellate Court judge Alan Scheinkman wrote a much more thorough opinion than the (lower and misleadingly named) Supreme Court judge's ruling on the TRO.

In it, he says that the TRO should be lifted from Simon & Schuster as a non-party to the confidentiality agreement signed between Mary Trump and others in her family. However, that does not necessarily mean the publication will go ahead. A somewhat modified order remains in place against Mary Trump, with the recognition that the more thorough hearing about the order will take place prior to the book's planned release anyway, which the judge seems to feel means that the order is not yet restricting any speech.

S&S is not a party to the settlement agreement. The only basis offered by the plaintiff to extend the temporary restraining order to S&S are the allegations that S&S “intends to act” on Ms. Trump’s behalf in causing the publication of the book and that S&S is acting at Ms. Trump’s direction and in concert with her. However, these allegations are conclusory and not supported by any specific factual averments. Unlike Ms. Trump, S&S has not agreed to surrender or relinquish any of its First Amendment rights (see Ronnie Van Zant, Inc. v Cleopatra Records, Inc., 906 F3d at 257). Since the predicate for the plaintiff’s application for a temporary restraining order is the existence of the confidentiality provision of the settlement agreement (and no alternate basis for an injunction against Ms. Trump is either suggested or apparent), and S&S is not a party to the settlement agreement, this Court perceives no basis for S&S to be specifically enjoined.

However, it does appear that Simon & Schuster is not out of the woods yet entirely. Apparently the heavily lawyered-up agreement that the Trump family signed 20 years ago did include a clause that does allow for an injunction against "any agent" acting on a signatories' "behalf" may also be covered by an injunction. But, the judge argues, there is not enough of a briefing record to establish if S&S qualifies. So, while the order directly regarding S&S is lifted, it is possible that following the hearing next week at the (again, lower) Supreme Court regarding the permanent injunction, it could bring S&S back in under that umbrella:

While the plaintiff has alleged, in effect, that S&S is Ms. Trump’s agent, the evidence submitted is insufficient for this Court to determine whether the plaintiff is likely to succeed in establishing that claim. So, while the plaintiff is entitled to have the temporary restraining order bind any agent of the plaintiff, this Court will not name S&S as being such an agent.

So now, the parties get to fight out over the larger permanent injunction next week, which could bring this debate back around again pretty quickly.

It is worth noting that the court also does nod towards the public interest argument for being one reason why an injunction might not be appropriate, but it is only doing so in acknowledging that argument, not tipping one way or the other on it:

The passage of time and changes in circumstances may have rendered at least some of the restrained information less significant than it was at the time and, conversely, whatever legitimate public interest there may have been in the family disputes of a real estate developer and his relatives may be considerably heightened by that real estate developer now being President of the United States and a current candidate for re-election. Drawing the appropriate balance may well require in camera review of the book sought to be enjoined. Stated differently, the legitimate interest in preserving family secrets may be one thing for the family of a real estate developer, no matter how successful; it is another matter for the family of the President of the United States.

So... the fight to publish the book will continue next week.

One element in this case that I haven't seen much talked about, but also does deserve some scrutiny: the decision to have the case filed by Donald Trump's brother, Robert Trump. This is, somewhat obviously, a flimsy front for the president himself. He's using the president's own lawyer, who has represented the president in a bunch of other cases. It appears that the confidentiality agreement was signed on one side by the president, Robert Trump, and their sister Maryanne Trump Barry a former federal judge. While there may be some expediency reasons to try to pretend that this is really on behalf of the less-well-known brother it still seems like an odd choice for multiple reasons.

First off, basically everyone recognizes this is really to help the president and not so much his brother. So having Robert be the plaintiff does little to actually shield the president. But, more importantly, if there are any "damages" from the breach of this agreement, it sure seems like Donald Trump would have the strong argument for those, as opposed to Robert Trump. But, perhaps Harder is hoping that using Robert Trump somehow gets the court not to consider the public interest argument as laid out above -- saying that this case is not actually about the private behind the scenes events related to the President of the United States, but rather his much less well known brother. I have trouble seeing that argument passing muster, but who knows. I didn't think a judge would engage in prior restraint either, and that turned out to be wrong.

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Posted on Techdirt - 2 July 2020 @ 10:48am

Facebook Follows Twitter In Recognizing A 'More Speech' Approach Is Best For Newsworthy Liars

from the it's-one-way-to-deal-with-it dept

As you may recall, a few weeks back, Twitter made a decision to add a fact check to some tweets by President Trump, and a few days later, to put a label on some of his tweets, saying that they violated Twitter's policies, and would normally be deleted, but Twitter decided that given the newsworthiness of the speaker, they would be left up (though without the ability to comment or retweet them). The president reacted about as well as expected, meaning he whined vociferously, and eventually issued a silly executive order.

Of course, the other end of this story was that Trump posted some of the same content to Facebook, and Facebook chose to do nothing. Indeed, Mark Zuckerberg pulled out this ridiculous self-serving, sanctimonious nonsense about how Facebook would allow that content because he didn't want to be "the arbiter of truth." Except, of course, Facebook does fact checks and content moderation all the time. This seemed to be a lot more about currying favor with the president, than any principled stand.

It created a big fuss within (and outside) the company, and as with any situation in which a social media website says it's taking a hands-off approach, it eventually proves to be totally unworkable. It seems to have taken all of a month for Facebook to recognize this as well.

On Friday, Mark Zuckerberg announced a bunch of changes to Facebook's policies that appear to be pretty damn similar to what Twitter did a month earlier, which Zuckerberg originally pretended was a bad idea. Amidst a larger rollout of changes to fight voter suppression and misinformation, there was this:

A handful of times a year, we leave up content that would otherwise violate our policies if the public interest value outweighs the risk of harm. Often, seeing speech from politicians is in the public interest, and in the same way that news outlets will report what a politician says, we think people should generally be able to see it for themselves on our platforms.

We will soon start labeling some of the content we leave up because it is deemed newsworthy, so people can know when this is the case. We'll allow people to share this content to condemn it, just like we do with other problematic content, because this is an important part of how we discuss what's acceptable in our society -- but we'll add a prompt to tell people that the content they're sharing may violate our policies.

To clarify one point: there is no newsworthiness exemption to content that incites violence or suppresses voting. Even if a politician or government official says it, if we determine that content may lead to violence or deprive people of their right to vote, we will take that content down. Similarly, there are no exceptions for politicians in any of the policies I'm announcing here today.

Frankly, I think this is the best of a bunch of bad solutions. There really isn't a great answer here, even though people always assume there's "the right way" to do this. Among your options:

  • Do nothing: What Zuckerberg initially claimed Facebook would do. But this then allows people -- including politicians -- to spread ridiculous lies, sometimes hateful, or violence inducing, without any way to stop it. It pisses off users of your platform, as well as advertisers.
  • Take the content down: This pisses off the lying politicians, who are in a position to make your life even more miserable. See the response in Congress to Twitter doing just a little bit of moderation, in which victim-playing Republicans suddenly pretended that Twitter was "censoring them" and demanding revenge.
  • Calling out newsworthy exemptions: More or less where both companies have ended up. This still leads to complaints from both sides, but is a form of a compromise -- and one that involves adding "more speech" to questionable speech, rather than completely erasing some speech or pretending that the original speech was perfectly acceptable.
Is this the "best" possible resolution? Almost certainly not. But it does show how the companies continue to struggle through this and adapt to try to come up with solutions that make the most sense in a world where every option has significant trade-offs.

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Posted on Techdirt - 2 July 2020 @ 9:28am

Rather Than Attacking Section 230, Why Aren't Trump Supporters Angry About The DMCA That's Actually Causing Issues?

from the you-guys-got-it-all-wrong dept

A few weeks back, we wrote about how one of Donald Trump's tirades over Twitter "moderating" him, in which he blamed Section 230, was totally misplaced. The actual issue was about copyright and Section 512 of the DMCA. That was a case where a copyright claim took down a Trump campaign video after a copyright holder claimed it infringed.

Last week, we saw copyright again cause trouble in Trump world -- and again, Trump's fans blamed Twitter and Section 230 rather than the problems of the DMCA instead. This time, it involved a well-known Trump mememaker going by the name Carpe Donktum, who makes generally lame "MAGA memes." Early last week, Twitter permanently shut down his account, and all the Trumpalos went nuts. A writer for the Federalist, Mollie Hemingway, laughably called it "election interference" by Twitter:

Except, as you can even see in that very screenshot that Mollie (who apparently can't even read the screenshots she's posting), Twitter shut down his account for repeated infringement under the DMCA. Twitter later confirmed exactly that.

“per our copyright policy, we respond to valid copyright complaints sent to us by a copyright owner or their authorized representatives. The account was permanently suspended for repeated violations of this policy.”

Donnie Jr. got similarly angry, and had an odd interpretation of what "public domain" means:

Now, we can argue whether or not the copyright claim was valid. I think for most memes, even Donktum's incredibly stupid ones, he would have strong fair use claims. But as we've seen in cases like the BMG v. Cox case, courts are now saying that the repeat infringer policy is not for proven infringement, but merely alleged infringement.

Even worse? In the Copyright Office's recent report on Section 512 of the DMCA, it supported that viewpoint, that the DMCA not only requires a repeat infringer policy, but that it should be based on repeated accusations of infringement, even if those accusations are not accurate.

Given that, Twitter has little choice but to shut down Donktum's feed, and people blaming Twitter or Section 230 for this (or idiotically calling it "election interference") have misplaced their blame. They should, instead, be concerned about Section 512(i) of the DMCA and the series of recent cases that say it is based on accusation, and not on any adjudication of infringement. And, similarly, they should also be asking why the Copyright Office recently supported this censorial definition in the years-long study it did on Section 512 and just released a little over a month ago. From that report:

... any definition must be consistent with the statutory criteria that repeat infringer means repeat alleged infringer, not repeat adjudicated infringer.

And then this week, we had yet another example, in which Twitter removed an image from a Trump tweet after the NY Times filed a DMCA takedown notice:

The original tweet by Trump issued on June 30, showed a meme that read “In reality they’re not after me they’re after you I’m just in the way” with Trump’s picture in the background.

The background picture was taken by a New York Times photographer, to accompany a feature article on then presidential candidate Trump in September 2015.

Twitter now displays the message “This image has been removed in response to a report from the copyright holder,” in place of the tweet.

You can see what it looks like now:

As I write this, the usual crew hasn't freaked out yet, but I fully expect that when they do, they're likely to blame Twitter or Section 230, neither of which are even remotely responsible here.

But while Trump's fans in Congress are running around trying to change Section 230 with a new bill every other day, why aren't any of them looking at fixing this part of the DMCA that is actually leading to censorship (unlike what's happening with 230)?

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Posted on Free Speech - 1 July 2020 @ 3:36pm

NY Judge Apparently Unaware Of The Supreme Court's Ban On Prior Restraint: Puts Temporary Restraining Order On Trump's Niece's Book

from the that-won't-last dept

Last week, we wrote about the president's brother, Robert Trump, suing his (and the president's) niece, Mary Trump to try to block her from publishing her new book that criticizes the president. The initial filing to block the publication failed for being in the wrong court, but the follow up attempt has succeeded, at least temporarily. NY Supreme Court (despite the name, this is the equivalent of the district court in NY) Judge Hal Greenwald doesn't seem to have even bothered to do even a cursory 1st Amendment analysis regarding prior restraint, but agreed to rush out a temporary restraining order, while ordering the the parties to brief the matter before July 10th on whether or not the ban should be made permanent.

This is not how this works. As Walter Sobchek famously explained: "the Supreme Court has roundly rejected prior restraint." Or, as 1st Amendment lawyer Ken "Popehat" White notes:

Mary Trump's lawyer, Ted Boutrous (who knows this stuff better than you do) says that they'll be appealing. According to the Courthouse News link above:

“The trial court’s temporary restraining order is only temporary, but it still is a prior restraint on core political speech that flatly violates the First Amendment,” Theodore Boutrous, an attorney for Mary Trump with the firm Gibson Dunn, said in a statement. “We will immediately appeal. This book, which addresses matters of great public concern and importance about a sitting president in election year, should not be suppressed even for one day.”

The lawyer for Robert Trump, Charles Harder (who, yes, once was the lawyer in a case against us), did his usual song-and-dance as well:

“The actions of Mary Trump and Simon & Schuster are truly reprehensible,” Harder said, referring to the book’s publisher.

Publishing a book that reveals important public information about the President of the United States is the opposite of reprehensible. What is "reprehensible" is abusing the law to file censorious SLAPP lawsuits on behalf of the rich and powerful.

He went on:

“We look forward to vigorously litigating this case and will seek the maximum remedies available by law for the enormous damages caused by Mary Trump’s breach of contract and Simon & Schuster’s intentional interference with that contract,” Harder added. “Short of corrective action to immediately cease their egregious conduct, we will pursue this case to the very end.”

Harder and Robert Trump will lose this case and the book will be published. The 1st Amendment and free speech will win, no matter how many times Harder seeks to deny such basic rights to people.

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Posted on Techdirt - 1 July 2020 @ 1:35pm

Senate Waters Down EARN IT At The Last Minute; Gives Civil Liberties Groups No Time To Point Out The Many Remaining Problems

from the this-is-still-a-bad-bill dept

As expected, the EARN IT Act is set to be marked up this week, and today (a day before the markup) Senators Graham and Blumenthal announced a "manager's amendment" that basically rewrites the entire bill. It has some resemblance to the original bill, in that this bill will also create a giant "national commission on online child sexual exploitation prevention" to "develop recommended best practices" that various websites can use to "prevent, reduce, and respond to the online sexual exploitation of children," but then has removed the whole "earn it" part of the "EARN IT" Act in that there seems to be no legal consequences for any site not following these "best practices" (yet). In the original bill, not following the best practices would lose sites their Section 230 protections. Now... not following them is just... not following them. The Commission just gets to shout into the wind.

Of course, we've seen mission creep on things like this before, where "best practices" later get encoded into law, so there remain significant concerns about how this all plays out in the long run, even if they've removed some of the bite from this version.

Instead, the major "change" with this version of EARN IT, is that it basically replicates FOSTA in creating a specific "carve out" for child sexual abuse material (CSAM, or the artist formerly known as "child porn"). It's almost an exact replica of FOSTA, except instead of "sex trafficking and prostitution" they say the same thing about 230 not impacting laws regarding CSAM. This is... weird? And pointless? It's not like there is some long list of cases regarding CSAM where Section 230 got in the way. There are no sites anyone can point to as "hiding behind Section 230" in order to encourage such content. This is all... performative. And, if anything, we're already seeing people realize that FOSTA did nothing to stop sex trafficking, but did have massive unintended consequences.

That said, there are still massive problems with this bill, and that includes significant constitutional concerns. First off, it remains unclear why the government needs to set up this commission. The companies have spent years working with various stakeholders to build out a set of voluntary best practices that have been implemented and have been effective in finding and stopping a huge amount of CSAM. Of course, there remains a lot more out there, and users get ever sneakier in trying to produce and share such content -- but a big part of the problem seems to be that the government is so focused on blaming tech platforms for CSAM that they do little to nothing to stop the people who are actually creating and sharing the material. That's why Senator Wyden tried to call law enforcement's bluff over all of this by putting out a competing bill that basically pushes law enforcement to do its job, which it has mostly been ignoring.

On the encryption front: much of the early concern was that this commission (with Attorney General Bill Barr's hand heavily leaning on the scales) would say that offering end-to-end encryption was not a "best practice" and thus could lead to sites that offered such communication tools losing 230 protections for other parts of their site. This version of EARN IT removes that specific concern... but it's still a threat to encryption, though in a roundabout way. Specifically, in that FOSTA-like carve out, the bill would allow states to enforce federal criminal laws regarding CSAM, and would allow states to set their own laws for what standard counts as the standard necessary to show that a site "knowingly" aided in the "advertisement, promotion, presentation, distribution or solicitation" of CSAM.

And... you could certainly see some states move (perhaps with a nudge from Bill Barr or some other law enforcement) to say that offering end-to-end encryption trips the knowledge standard on something like "distribution." It's roundabout, but it remains a threat to encryption.

Then there are the constitutional concerns. A bunch of people had raised significant 4th Amendment concerns in that if the government was determining the standards for fighting CSAM, that would turn the platforms into "state actors" for the purpose of fighting CSAM -- meaning that 4th Amendment standards would apply to what the companies themselves could do to hunt down and stop those passing around CSAM. That would make it significantly harder to actually track down the stuff. With the rewritten bill, this again is not as clear, and there remain concerns about the interaction with state law. Under this law, a site can be held liable for CSAM if it was "reckless" and there are reasons to believe that state laws might suggest that it's reckless not to do monitoring for CSAM -- which could put us right back into that state actor 4th Amendment issue.

These are not all of the problems with the bill, but frankly, the new version is just... weird? It's like they had that original "earn" 230 idea worked out, and were convinced that couldn't actually work, but were too wedded to the general idea to try to craft a law that actually works. So they just kinda chucked it all and said "recreate FOSTA" despite that not making any sense.

Oh, and they spring this on everybody the day before they mark it up, giving most experts almost no time to review and analyze. This is not how good lawmaking is done. But what do you expect these days?

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Posted on Techdirt - 1 July 2020 @ 10:43am

Parler Speedruns The Content Moderation Learning Curve; Goes From 'We Allow Everything' To 'We're The Good Censors' In Days

from the nice-one-guys dept

Over the last few weeks Parler has become the talk of Trumpist land, with promises of a social media site that "supports free speech." The front page of the site insists that its content moderation is based on the standards of the FCC and the Supreme Court of the United States:

Of course, that's nonsensical. The FCC's regulations on speech do not apply to the internet, but just to broadcast television and radio over public spectrum. And, of course, the Supreme Court's well-established parameters for 1st Amendment protected speech have been laid out pretty directly over the last century or so, but the way this is written they make it sound like any content to be moderated on Parler will first be reviewed by the Supreme Court, and that's not how any of this works. Indeed, under Supreme Court precedent, very little speech is outside of the 1st Amendment these days, and we pointed out that Parler's terms of service did not reflect much understanding of the nuances of Supreme Court jurisprudence on the 1st Amendment. Rather, it appeared to demonstrate the level of knowledge of a 20-something tech bro skimming a Wikipedia article about exceptions to the 1st Amendment and just grabbing the section headings without bothering to read the details (or talk to a 1st Amendment lawyer).

Besides, as we pointed out, Parler's terms of service allow them to ban users or content for any reason whatsoever -- suggesting they didn't have much conviction behind their "we only moderate based on the FCC and the Supreme Court." Elsewhere, Parler's CEO says that "if you can say it on the street of New York, you can say it on Parler." Or this nugget of nonsense:

“They can make any claim they’d like, but they’re going to be met with a lot of commenters, a lot of people who are going to disagree with them,” Matze said. “That’s how society works, right? If you make a claim, people are going to come and fact check you organically.”

“You don’t need an editorial board of experts to determine what’s true and what’s not,” he added. “The First Amendment was given to us so that we could all talk about issues, not have a single point of authority to determine what is correct and what’s not.”

Ah.

So, anyway, on Monday, we noted that Parler was actually banning a ton of users for a wide variety of reasons -- most of which could be labeled simply as "trolling Parler." People were going on to Parler to see what it would take to get themselves banned. This is trolling. And Parler banned a bunch of them. That resulted in Parler's CEO, John Matze, putting out a statement about other things that are banned on Parler:

If you can't read that, here's what he says, with some annotations:

To the people complaining on Twitter about being banned on Parler. Please pay heed:

Literally no one is "complaining" about being banned on Parler. They're mocking Parler for not living up to it's pretend goals of only banning you for speech outside of 1st Amendment protections.

Here are the very few basic rules we need you to follow on Parler. If these are not to your liking, we apologize, but we will enforce:

Good for you. It's important to recognize -- just as we said -- that any website that hosts 3rd party content will eventually have to come up with some plan to enforce some level of content moderation. You claimed you wouldn't do that. Indeed, just days earlier you had said that people could "make any claim they'd like" and also that you were going to follow the Supreme Court's limits on the 1st Amendment, not your own content moderation rules.

When you disagree with someone, posting pictures of your fecal matter in the comment section WILL NOT BE TOLERATED

So, a couple thoughts on this. First of all, I get that Matze is trying to be funny here, but this is not that. All it really does is suggest that he's been owned by a bunch of trolls posting shit pics. Also, um, contractually, this seems to mean it's okay to post pictures of other people's fecal matter. Might want to have a lawyer review this shit, John.

Also, more importantly, I've spent a few hours digging through Supreme Court precedents regarding the 1st Amendment and I've failed to find the ruling that says that posting a picture of your shit violates the 1st Amendment. I mean, I get that it's not nice. But, I was assured by Parler that it was ruled by Supreme Court precedent.

Your Username cannot be obscene like "CumDumpster"

Again, my litany of legal scholars failed to turn up the Supreme Court precedent on this.

No pornography. Doesn't matter who, what, where, when, or in what realm.

Thing is, most pornography is very much protected under the 1st Amendment as interpreted by the Supreme Court of the United States. So again, we see that Parler's rules are not as initially stated.

We will not allow you to spam other people trying to speak, with unrelated comments like "Fuck you" in every comment. It's stupid. It's pointless, Grow up.

I agree that it's stupid and that people should grow up, but this is the kind of thing that every other internet platform either recognizes from the beginning or learns really quickly: you're going to have some immature trolls show up and you need to figure out how you want to deal with them. But those spammers' and trolls' speech is, again (I feel like I'm repeating myself) very much protected by the 1st Amendment.

You cannot threaten to kill anyone in the comment section. Sorry, never ever going to be okay.

Again, this is very context dependent, and, despite Matze saying that he won't employ any of those annoying "experts" to determine what is and what is not allowed, figuring out what is a "true threat" under the Supreme Court's precedent usually requires at least some experts who understand how true threats actually work.

But, honestly, this whole thing is reminiscent of any other website that hosts 3rd party content learning about content moderation. It's just that in Parler's case, because it called attention to the claims that it would not moderate, it's having to go through the learning curve in record time. Remember, in the early days, Twitter called itself "the free speech wing of the free speech party." And then it started filling with spam, abuse, and harassment. And terrorists. And things got tricky. Or, Facebook. As its first content policy person, Dave Willner, said at a conference a few years ago, Facebook's original content moderation policy was "does it make us feel icky?" And if it did, it got taken down. But that doesn't work.

And, of course, as these platforms became bigger and more powerful, the challenges became thornier and more and more complicated. A few years ago, Breitbart went on an extended rampage because Google had created an internal document struggling over the biggest issues in content moderation, in which it included a line about "the good censor". For months afterwards, all of the Trumpist/Breitbart crew was screaming about "the good censor" and how tech believed its job was to censor conservatives (which is not what the document actually said). It was just an analysis of all the varied challenges in content moderation, and how to set up policies that are fair and reasonable.

Parler seems to be going through this growth process in the course of about a week. First it was "hey free speech for everyone." Then they suddenly start realizing that that doesn't actually work -- especially when people start trolling you. So, they start ad libbing. Right now, Parler's policy seems more akin to Facebook's "does it make us feel icky" standard, though tuned more towards its current base: so "does upset the Trumpists who are now celebrating the platform." That's a policy. It's not "we only moderate based on the 1st Amendment." And it's not "free speech supportive." It's also not scaleable.

So people get banned and perhaps for good reason. Here's the single message that got Ed Bott banned:

I don't see how that violates any of the so far stated rules of Parler, but it's violating one of the many unwritten rules: Parler doesn't like it if you make fun of Parler. Which is that company's choice of course. I will note, just in passing, that that is significantly more restrictive than Twitter, which has tons of people mocking Twitter every damn day, and I've yet to hear of a single case of anyone being banned from Twitter for mocking Twitter. Honestly, if you were to compare the two sites, one could make a very strong case that Twitter is way more willing to host speech than Parler is considering its current policies.

Should Parler ever actually grow bigger, it might follow the path of every other social media platform out there and institute more thorough rules, policies, and procedures regarding content moderation. But, of course, that makes it just like every other social media platform out there, though it might draw the lines differently. And, as I've said through all these posts (contrary to the attacks that have been launched at me the last few days), I'm very happy that Parler exists. I want there to be more competition to today's social media sites. I want there to be more experimentation. And I'm truly hopeful that some of them succeed. That's how innovation works.

I just don't like it when they're totally hypocritical. Indeed, it seems that Parler's CEO Matze has now decided that rather than being supportive of the 1st Amendment, and rather than being supportive of what you can say on a NY street (say, in a protest of police brutality), anyone who supports Antifa is not allowed on Parler:

I'm not quite clear on what Parler policy (or 1st Amendment exception) "Antifa supporter" falls under, but hey, I don't make the rules.

In the meantime, it's been fun to watch Parler's small group of rabid supporters try to continue to justify the site's misleading claims. A bunch keep screaming at me the falsehood that Parler supports any 1st Amendment protected free speech. Others insist that "of course" that doesn't apply to assholes (the famed "asshole corollary" to Supreme Court 1A doctrine, I guess). But, honestly, my favorite was this former Fox News reporter who now writes for Mediaite -- who spent a couple days insisting that everyone making fun of Parler's hypocrisy were somehow "mad" at being kicked off Parler -- who decided to just straight up say that Parler is good because it does the right kind of banning. You see, Parler is the good censor:

And, thus, we're right back to "the good censor." Except that when the Google document used that phrase, it used it to discuss the impossible tradeoffs of moderation, not to embrace the role. Yet here, a Parler fan is embracing this role that is entirely opposite of the site's public statements. Somehow, I get the feeling that the Breitbart/Trumpist crew isn't going to react the same way to Parler becoming "the good censor" as it did to a Google document that just highlighted the impossible challenges of content moderation.

And, look, if Parler had come out and said that from the beginning, cool. That's a choice. No one would be pointing out any hypocrisy if they just said that they wanted to create a safe space for aggrieved Trump fans. Instead, the site is trying to have it both ways: still claiming it's supportive of 1st Amendment rules, while simultaneously ramping up its somewhat arbitrary banning process. Of course, what's hilarious is that many of its supporters keep insisting that their real complaint with Twitter is that its content moderation is "arbitrary" or "unevenly applied." The fact that the same thing is now true of Parler seems blocked from entering their brains by the great cosmic cognitive dissonance shield.

The only issue that people are pointing out is that Parler shouldn't have been so cavalier in hanging its entire identity on "we don't moderate, except as required by law." And hopefully it's a lesson to other platforms as well. Content moderation happens. You can't avoid it. Pretending that you can brush it off with vague platitudes about free speech doesn't work. And it's better to understand that from the beginning rather than look as foolish as Parler just as everyone's attention turns your way.

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Posted on Techdirt - 1 July 2020 @ 9:23am

'But Without 230 Reform, Websites Have No Incentive To Change!' They Scream Into The Void As Every Large Company Pulls Ads From Facebook

from the oh,-look-at-that dept

One of the most frustrating lines that we hear from people criticizing internet website content moderation is the idea that thanks to Section 230 of the Communications Decency Act, websites have no incentive to do any moderation. This is a myth that I consider to be the flip side of the claims by aggrieved conservatives insisting that Section 230 requires "no bias" in moderation decisions. The "no incentive" people are (often lawyers) complaining about too little moderation. For reasons I cannot comprehend, they seem to think that the only motivation for doing anything is if the law requires you to do it. We've tried to debunk this notion multiple times, and yet it comes up again and again. Just a couple weeks ago in a panel about Section 230, a former top Hollywood lobbyist trotted it out.

I've been thinking about that line a bunch over the past few days as a huge number of large companies began pulling ads from Facebook as part of a "Stop Hate for Profit" campaign put together by a bunch of non-profits.

Over 200 companies have said they've joined the campaign and pulled their Facebook ads, including some big names, like Unilever, Verizon, Hershey, The North Face, Clorox, Starbucks, Reebok, Pfizer, Microsoft, Levi's, HP, Honda, Ford, Coca Cola and many, many more. Now, the cynical take on this is that with the current economic conditions and a global pandemic, many were looking to pull back on advertising anyway, and joining this campaign was a way to do so and get a bit of an earned media boost at the same time.

But many of the companies are putting out statements demanding that Facebook change its practices before they'll bring back ads. Here's an open letter from Levi's:

As we near the U.S. election in November and double down on our own efforts to expand voter education and turnout, we are asking Facebook to commit to decisive change. Specifically, we want to see meaningful progress towards ending the amplification of misinformation and hate speech and better addressing of political advertisements and content that contributes to voter suppression. While we appreciate that Facebook announced some steps in this direction today – it’s simply not enough.

That’s why we are joining the #StopHateForProfit campaign, pausing all paid Facebook and Instagram advertising globally and across all our brands to “hit pause on hate.” We will suspend advertising at least through the end of July. When we re-engage will depend on Facebook’s response.

I'm not convinced this campaign is necessarily a good idea, but at the very least it should put an end to people -- especially prominent experts -- claiming that there is "no incentive" for sites to do a better job with their content moderation practices. There are always non-legal incentives, including keeping users happy -- and also keeping advertisers happy.

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Posted on Techdirt - 30 June 2020 @ 3:33pm

Copyright Troll Richard Liebowitz Benchslapped And Sanctioned AGAIN In A Massive Filing Detailing Pages Upon Pages Of Him Lying Under Oath

from the who-still-hires-this-guy?!? dept

Do you have a bit of time? I'd suggest, before digging in here, that you get yourself a nice cup of something warm, and maybe a little snack to go with it. Because there's a lot to read here, and you're not going to want to stop. It goes on for quite a while, but it's all worth it. Every bit of it.

We've written a bunch about copyright trolling lawyer Richard Liebowitz and his long history of having judges yell at and issue monetary sanctions on him, and I'd repeat some examples and link back to them (though you can just click on the link above and see all our stories about him) but why go through all that work when Judge Jesse Furman in the Southern District of NY helpfully has done it for us in his latest opinion involving a Richard Liebowitz case. Let me just say, that when a judge's opinion opens this way, it's (1) going to be a fun read (2) except if your Richard Liebowitz (and his clients).

Richard Liebowitz, who passed the bar in 2015, started filing copyright cases in this District in 2017. Since that time, he has filed more cases in this District than any other lawyer: at last count, about 1,280; he has filed approximately the same number in other districts. In that same period, he has earned another dubious distinction: He has become one of the most frequently sanctioned lawyers, if not the most frequently sanctioned lawyer, in the District. Judges in this District and elsewhere have spent untold hours addressing Mr. Liebowitz’s misconduct, which includes repeated violations of court orders and outright dishonesty, sometimes under oath. He has been called “a copyright troll,” McDermott v. Monday Monday, LLC, No. 17-CV-9230 (DLC), 2018 U.S. Dist. LEXIS 184049, at *9-10 (S.D.N.Y. Oct. 26, 2018); “a clear and present danger to the fair and efficient administration of justice,” Mondragon v. Nosrak LLC, No. 19-CV-1437 (CMA) (NRN), 2020 WL 2395641, at *1, *13 (D. Colo. May 11, 2020); a “legal lamprey[],” Ward v. Consequence Holdings, Inc., No. 18-CV-1734 (NJR), 2020 WL 2219070, at *4 (S.D. Ill. May 7, 2020); and an “example of the worst kind of lawyering,” id. at *3. In scores of cases, he has been repeatedly chastised, warned, ordered to complete ethics courses, fined, and even referred to the Grievance Committee. And but for his penchant for voluntarily dismissing cases upon getting into hot water, the list of cases detailing his misconduct — set forth in an Appendix here — would undoubtedly be longer.

Yeah. That opening does not bode well for Liebowitz. And what seems to confuse both me and Judge Furman is why the fuck does Liebowitz continue to do the same damn thing over and over again, pissing off judges. Especially when he's before a judge who has already called him out, you'd think that young Richard would be extra careful. But that does not appear to be within the skill set of Richard Liebowitz.

One might think that a lawyer with this record would tread carefully, particularly before a judge who had recently sanctioned him. See Rice v. NBCUniversal Media, LLC, No. 19-CV-447 (JMF), 2019 WL 3000808, at *4 (S.D.N.Y. July 10, 2019). But — as this case makes clear — not Mr. Liebowitz. In November of last year, Mr. Liebowitz appeared, in the company of a criminal defense lawyer, before another judge on this Court after being held in contempt for repeatedly lying, including under oath, about the date his own grandfather had died to justify his failure to attend a court conference. See Berger v. Imagina Consulting, Inc., No. 18-CV-8956 (CS), ECF No. 62 (S.D.N.Y. Nov. 13, 2019) (“Berger Tr.”). The very next day, he appeared before the undersigned and — despite an explicit warning to be “very, very, very careful about the representations” he made in court — lied about his compliance with a court Order that had required an in-person mediation. See ECF No. 50 (“Initial Conf. Tr.”), at 7. Making matters worse, Mr. Liebowitz then repeated that lie, over and over, and ultimately under oath during an evidentiary hearing. On top of that, he violated at least six court Orders. And to cap it off, defense counsel discovered only after incurring the expenses of litigating the case that the Complaint Mr. Liebowitz prepared and filed contained a false allegation — namely, that the photograph at issue in this case had previously been registered with the Copyright Office — that would have required dismissal of the lawsuit at its inception.

That's the second paragraph of the opinion. As for where all of this is heading, I'll cut to the chase: Judge Furman is sanctioning Liebowitz. And more.

For the reasons stated below, the Court concludes that sanctions are amply justified, indeed all but required, and orders a mix of substantial monetary and non-monetary sanctions against Mr. Liebowitz and his firm. The Court also refers Mr. Liebowitz to the Court’s Grievance Committee to evaluate whether he should be allowed to continue practicing law in this District.

As for the specifics of what went wrong in this specific case, it's yet another example of Liebowitz doing the Liebowitz thing, which is basically not paying attention to any of the details or requirements involved in practicing law in this manner, and misrepresenting a variety of things to both the court and his client. It's... not good. This case, like the others, is a copyright trolling case, on behalf of a photographer, Arthur Usherson, claiming that an artist management firm, Bandshell, had infringed on a Usherson photo of musician Leon Redborne on its website. The court pushed the case into a mediation program to see if a settlement could be reached without having to waste everyone's time and money. The order for mediation was pretty straightforward, and told the parties to conduct a mediation effort before September 26, 2019. Liebowitz was also told to file proof of service of the complaint as well as some details on the licensing of the photograph. Guess how well he did in following these instructions?

Mr. Liebowitz failed to comply with these mandates. First, although the summons and Complaint were served on Bandshell on September 5, 2019, Mr. Liebowitz did not file proof of that service until September 21, 2019. ECF No. 7. Second, he failed to produce the required discovery by September 19, 2019, fourteen days after service was made. When defense counsel followed up about the missing discovery, Mr. Liebowitz responded on September 20, 2019: “My client is still looking but as of now doesn’t look like any licensing for this photo.” ECF No. 16, at 12. Finally, Mr. Liebowitz failed to participate in mediation by September 26, 2019, two weeks before the initial pretrial conference originally scheduled for October 10, 2019. Instead, more than a week after the deadline passed, Mr. Liebowitz filed a letter in which he suggested that the mediation had not taken place because of a failure on the part of the Mediation Office to assign a mediator. See ECF No. 12. In the same letter, Mr. Liebowitz requested leave to hold a telephonic mediation on October 8, 2019, or an extension of the mediation deadline and adjournment of the initial pretrial conference.

Judge Furman, at this point, pointed out that Liebowitz blaming the Mediation Office for his own failures was not a good look, but gave him a chance to make it right. Let's see how that all went:

In an Order dated October 7, 2019, the Court admonished Mr. Liebowitz for unfairly trying to place blame on the Mediation Office for his own failure to meet the mediation deadline.... The Court nevertheless concluded that “early mediation in the normal course (i.e., in person) makes sense.”... Accordingly, the Court adjourned the initial pretrial conference to November 14, 2019, and ordered, in no uncertain terms, that “[t]he parties shall conduct the in-person mediation no later than October 31, 2019.” ... In an email exchange later that day, Bandshell’s counsel, Brad Newberg, asked Mr. Liebowitz “if any of October 11, 16, 28 or 31 work for the [sic] both of you and Mr. Usherson.” ... Mr. Liebowitz responded that “October 31st at 12pm works.” ... The mediator (the “Mediator”) — a member of this Court’s mediation panel, but recruited by Mr. Liebowitz himself to mediate this particular case — approved the date and scheduled the mediation....

On October 31, 2019, however, neither Mr. Liebowitz nor Mr. Usherson showed up at the mediation. Instead, Mr. Liebowitz sent two associates — James Freeman and Rebecca Liebowitz (Mr. Liebowitz’s sister)... Neither had entered an appearance in this case. In fact, Mr. Liebowitz did not even tell Mr. Freeman about “the existence of this matter” until “about 8:00 p.m. on October 30, 2019,” the night before the mediation.... Ms. Liebowitz, moreover, was a “newly admitted” lawyer who was attending only “to ‘shadow’ Mr. Freeman and learn from the process.” ... Mr. Freeman and Ms. Liebowitz spoke briefly with Mr. Newberg and Bandshell’s principal, who did attend in person, but no settlement was reached. The Mediator later attributed the failure to reach an agreement in part to “the lack of personal appearance[s]” by Mr. Liebowitz and Mr. Usherson.

Yikes! At that point, Bandshell, reasonably requested sanctions against Liebowitz. Now, if you were a betting person, would you think that Liebowitz apologized and promised to do better? Or that he kept digging. Oh, you guessed it right, didn't you? Because you know where this is going:

In response, Mr. Liebowitz asserted — repeatedly — that he and Mr. Usherson had received approval in advance from the Mediator not to appear at the mediation in person. Mr. Liebowitz made this claim first in a joint letter filed shortly before the initial pretrial conference.... In that letter, Mr. Liebowitz claimed that the Mediator had “indicated that Plaintiff was permitted to appear telephonically under Rule 9F of the mediation program.”... Notably, in the same section of the letter, Bandshell responded that “virtually everything in Plaintiff’s statement is false, and Defendant’s counsel has warned Plaintiff against filing a false statement regarding the scheduled mediation with the Court.”...

Mr. Liebowitz doubled down in his next submission: his initial “response” to the sanctions motion, which took the form of a three-page letter (in violation of Local Rule 7.1, which requires that, with limited exceptions inapplicable here, opposition to a motion must be in the form of a memorandum of law).... To the extent relevant here, Mr. Liebowitz asserted in that letter that “[n]othing in the Court order or mediation rules states that lead counsel needs to attend the mediation.” ... Rule 9(c) of the Mediation Program’s Procedures, however, provides explicitly that “[e]ach represented party must be accompanied at mediation by the lawyer who will be primarily responsible for handling the trial of the matter.” Rule 9(c), Procedures of the S.D.N.Y. Mediation Program (Dec. 26, 2018) (“Mediation Rules”).... More significantly for present purposes, Mr. Liebowitz represented that Mr. Usherson had “obtained permission from the assigned mediator . . . to appear at the scheduled mediation by telephone provided that counsel was present in person.” ... (citing Rule 9(f) of the Mediation Rules, which allows “a party” who resides “more than 100 miles from the Courthouse” to participate in a mediation by telephone with the advance approval of the mediator). He further claimed that he had “told [the Mediator] that an associate of Liebowitz Law Firm with knowledge of the facts of the case would appear in-person, and [the Mediator] consented.”

The Judge then points out that this all happened about the same time that Liebowitz was dealing with a situation in another courtroom in the same court having to do with lying about the death of his grandfather to explain his failings in another case. Right after the judge in that case had dressed down Liebowitz and told him to shape up was when this new hearing happened, and Judge Furman was well aware of the situation:

The very next day, appearing at the initial pretrial conference in this case, Mr. Liebowitz claimed that he had sought permission from the Mediator for Mr. Usherson, who lives in Georgia, to appear telephonically at the October 31, 2019 mediation and that the Mediator had “said yes.” Initial Conf. Tr. 6-7. Aware of the proceedings before Judge Seibel, the Court then stopped Mr. Liebowitz and warned him: “I want to caution you that you’re already in a lot of hot water in this Court, and I think you know that. In that regard, I would be very, very, very careful about the representations you make to me. If you prefer to let Mr. Freeman do the speaking, that is one thing, although they are still representations on your behalf.” Id. at 7. The Court then asked when Mr. Liebowitz had advised the Mediator that Mr. Usherson was not going to appear in person at the mediation, and the following colloquy occurred:

Mr. Liebowitz: I don’t know the exact date, but it was before the mediation, and he said yes.
The Court: [By] what means did you do that?
Mr. Liebowitz: It was telephone.
The Court: And you personally advised him?
Mr. Liebowitz: I personally.
The Court: And he said that was okay?
Mr. Liebowitz: He said that was okay.

It's at this moment that things go from bad to worse. The lawyer for the other side points out that Liebowitz filed the lawsuit... over a photograph that did not appear to be registered before the lawsuit was filed -- something the Supreme Court said you cannot do.

Mr. Newberg advised that, the day before the initial conference, he had “discovered that after this case was filed, Mr. Usherson filed a copyright registration, which . . . seems to be on these photographs, so now it is unclear whether the registration in the complaint actually does cover the photograph or if it is the new copyright registration.” Initial Conf. Tr. 17. Recognizing that the case would have to be dismissed if the Photograph had not been registered before the Complaint was filed, Mr. Newberg requested “discovery purely on those aspects early.” Id. Mr. Liebowitz responded: “I don’t know what defense counsel means about other registrations or other photographs. I will have to see what my office did, but this is the correct registration.” Id. at 17-18. Mr. Liebowitz argued against limited discovery or early summary judgment on the registration issue, stating that “the appropriate thing to do at this stage is to just set discovery, set the dates, and let the parties engage and hopefully during that process the parties could eventually get to a settlement number.”

You'd think, at this point, that any reasonable person would recognize that he was in trouble. But this is Richard Liebowitz we're talking about. And so, he did what he does... and made things worse:

Following the initial pretrial conference, the Court ordered Mr. Liebowitz to file a formal opposition to the motion for sanctions and directed both sides to address “whether the court should hold an evidentiary hearing and, if so, what witnesses should be called and how it should be conducted.” ... Mr. Liebowitz filed a formal opposition, but — disregarding the Court’s Order — he failed to address the evidentiary hearing.... Instead, he doubled down again (quadrupled down, perhaps) on his claim that Mr. Usherson had “obtained permission from the assigned mediator . . . to appear at the scheduled mediation by telephone provided that counsel was present in person” and that the Mediator had “consented to” Mr. Liebowitz’s associate appearing instead of Mr. Liebowitz.... In support of his opposition, Mr. Liebowitz submitted a declaration, in which he stated “under penalty of perjury” that “I sought and received approval from . . . the assigned mediator for Mr. Usherson to attend the mediation via telephone and for my associate James Freeman to appear who had full knowledge of the case. I obtained [the Mediator’s] consent via telephone.”

That paragraph above is foreshadowing. Can you guess where this is heading? Of course you can...

Mr. Newberg took issue with Mr. Liebowitz’s claims that he had secured advance approval from the Mediator for Mr. Usherson not to appear in person at the mediation and Mr. Freeman to attend on Mr. Liebowitz’s behalf, citing emails showing that, “even as late as October 30” — the night before the mediation — the Mediator and Mr. Newberg “were under the impression that Mr. Liebowitz (as lead and only admitted counsel) and Mr. Usherson would be at the mediation in person.”... Mr. Newberg noted that, because he was “concerned at what appeared to be false statements being made to the Court by Mr. Liebowitz,” he called the Mediator on November 19, 2019.... According to Mr. Newberg, the Mediator said that there had been “other mediations where he allowed Mr. Liebowitz’s client to appear by phone, but he stated clearly and pointedly . . . that this was not one of them.” (emphasis in original). The Mediator allegedly also said that, on “the night of October 30,” Mr. Liebowitz had “called and informed him (without asking for approval) that Mr. Liebowitz was out of town and that Mr. Liebowitz’s associate would be at the mediation instead.”... In that call, “no mention was made of Mr. Usherson at all.” ... The Mediator “only found out that Mr. Usherson would not be at the mediation” at the mediation itself.

The Judge found this interesting, and asked the Mediator to weigh in directly. You'll never guess what the Mediator said. Oh, what am I talking about? Of course you know what the mediator said. It's why you're still reading this:

The next day, the Mediator submitted a declaration, which stated that, on October 30, 2019, he had “talked to Mr. Liebowitz and was informed that the mediation was on. He did not inform me that he would not personally appear but through an associate. But I have mediated a few prior mediations involving Mr. Liebowitz where on at least one occasion that office appeared by an associate without incident.”... The Mediator further stated: “At no time was I informed that the plaintiff would not personally appear but would be available by telephone. I should say that in a few prior mediations his client appeared by telephone without incident. On this occasion no discussion was had by me as to client appearance.”

So... Liebowitz lied to the court multiple times, after being warned to be careful not to lie to the court. Guess how he responded to being called out on this lie? Did he admit to error? Or did he triple down? Oh, you know. You know.

On December 16, 2019, Mr. Liebowitz filed a letter stating that he “contests certain statements proffered by the Mediator in his declaration.” ... Once again, Mr. Liebowitz asserted that he had “notified the Mediator that Mr. Usherson would be appearing telephonically and that such request was granted.” ... But the December 16th letter also proffered a new line of defense: that the Mediator in this case had a “custom and practice” of granting Mr. Liebowitz’s clients permission to appear telephonically at mediations.... Mr. Liebowitz cited five prior cases in which the Mediator had allegedly granted his clients permission to appear telephonically; in one of these five cases, he maintained, the Mediator also granted Mr. Liebowitz permission to send an associate on his behalf. ... Mr. Liebowitz insisted: “This . . . corroborates Mr. Liebowitz’s testimony and establishes a ‘pattern or practice’ of conduct showing that Mr. Liebowitz harbored a good faith belief that the requisite permissions were granted by the Mediator in this case.”

At this point, the Judge ordered the lawyers and the mediator to show up in his courtroom to discuss this in person. Finally realizing he might possibly be in trouble, Richard Liebowitz tried to do what so many copyright trolls try and do when in this position (though, frankly, Richard seems to realize that the time has come much later than most copyright trolls): he tried to cut and run:

On December 17, 2019, the Court issued an Order scheduling the hearing and directing Mr. Liebowitz, Mr. Newberg, and the Mediator to appear for testimony... Just two days later, Mr. Liebowitz filed a stipulation of voluntary dismissal signed by both parties, providing that the case “should be dismissed with prejudice with each side to bear its own costs and attorney’s fees.”

And, of course, even in that joint stipulation, Liebowitz was misleading, leading the other side's lawyer to feel the need to explain things to the court.

In a letter filed the same day, Mr. Newberg noted that Bandshell had stipulated to Mr. Usherson’s “withdr[awal of] the . . . case with prejudice,” but pointedly noted that he and his client “would not have so stipulated” had his firm “not been representing [Bandshell] pro bono.”

Given that, the judge did dismiss the underlying case, but not the original motion for sanctions from the defendant. That led to a hearing, with both sides and the mediator that went about as well as you would expect for a situation in which Liebowitz has to justify his actions. After first claiming that "it could well be that the mediator simply forgot that he" gave Liebowitz and his client permission to not show up to the mediation, things went even further off the rails:

On the subject of his communications with the Mediator in this case, Mr. Liebowitz claimed that, at about 7:30 to 8:00 p.m. on October 30, 2019, the night before the mediation, he had called the Mediator from Los Angeles, California, and asked for permission for Mr. Usherson to appear by telephone from Georgia and for Mr. Freeman to appear as counsel. ... Mr. Liebowitz testified that the Mediator had approved both requests. ... Mr. Liebowitz acknowledged that he had made no record of the call and, indeed, that there was “[n]othing in writing” at all reflecting that the call had occurred. ... When asked how he suddenly remembered that the telephone call had occurred on October 30th, when he could not remember the relevant date when asked at the November 14, 2019 initial pretrial conference (only two weeks after the events in question), Mr. Liebowitz responded that certain emails had jogged his memory — namely, emails that had been attached to Mr. Newberg’s initial declaration in support of the sanctions motion.... But Mr. Newberg’s initial declaration had been filed before the November 14th conference, and Mr. Liebowitz had actually responded to it in writing. (When pressed on that point, Mr. Liebowitz testified: “I often forget things.” )

I often forget things? That's going to convince the judge... And, of course, his forgetfulness seemed to work to his continuing disadvantage here as well.

More troubling, Mr. Liebowitz’s account is not supported by the email trail. At 6:34 p.m. on October 30, 2019, Mr. Newberg emailed a proposed settlement agreement to the Mediator, and stated that unless Mr. Usherson “sign[ed] the agreement” that night, “we will see Mr. Liebowitz and Mr. Usherson tomorrow . . . at the mediation.”... At 8:15 p.m., the Mediator replied: “Talked to Richard and he has been tied up. He will review tonight and get back to us in the morning. Hopefully we can settle this before need [sic] to go to in person mediation.”... Mr. Newberg responded: “I’m headed to the train station well before 6:00 am. And to be candid, I would have assumed Mr[.] Usherson either flew to NY tonight or is likewise on a very early plane.” ... The Mediator said simply, “I understand.” (email sent at 10:03 p.m.). In addition, at 4:12 a.m. on October 31, 2019, Mr. Liebowitz sent Mr. Newberg an email stating: “Attached please find revisions to the agreement which can be discussed at the mediation.”... Mr. Liebowitz did not mention that he and Mr. Usherson did not plan to attend, let alone that they had the Mediator’s permission not to attend.... At no point, in fact, did Mr. Liebowitz notify opposing counsel that he and Mr. Usherson would not be attending.

Ooops. Could it get worse? Oh, you know it could.

During Mr. Liebowitz’s testimony at the hearing, the Court asked him what he would have done had the Mediator denied his alleged requests on the night of October 30th.... Mr. Liebowitz claimed that he and Mr. Usherson would have attended the mediation the next day in person... But on the night of October 30th, Mr. Liebowitz was in Los Angeles hosting a “networking event” for photographers, and Mr. Usherson was at home in Georgia.... Mr. Liebowitz never booked any flights or checked when the last flight to New York from either location was.... Nevertheless, he claimed that he had been prepared to book flights and fly overnight.... hen pressed about whether he had communicated this alleged plan to Mr. Usherson, Mr. Liebowitz equivocated: “Well, if he — if he — if he didn’t have to appear in person, then — then I would have just called him that day and know that he’s always around.”... It is clear, therefore, that Mr. Liebowitz did not advise Mr. Usherson that he might need to jump on a plane at a moment’s notice and appear in New York. It follows that Mr. Liebowitz had no way of knowing whether Mr. Usherson could have complied if asked to do so.

Oh yeah, also, Liebowitz contradicted his own associate, who had shown up to "represent" him in this matter:

Notably, Mr. Liebowitz’s testimony was in tension, if not direct conflict, with the representations of his own associate, Mr. Freeman. For example, Mr. Liebowitz claimed that he had told Mr. Freeman on October 30th that the Mediator had approved Mr. Liebowitz’s requests. ... But at the initial pretrial conference, Mr. Freeman advised the Court that he had not known what “clearances” were given. ... When confronted with this discrepancy, Mr. Liebowitz responded: “[P]eople forget things.” ... Mr. Liebowitz also claimed that he had spoken with Mr. Freeman about the case on “numerous occasions” before October 30th. ... But, as noted, Mr. Freeman repeatedly confirmed that he did not even know about the “existence” of the case before October 30th — a representation that he had reiterated in his sworn declaration, ... which Mr. Liebowitz himself had filed and even cited in Mr. Usherson’s opposition brief... (Despite that, Mr. Liebowitz claimed that he had not read Mr. Freeman’s declaration before filing the brief. ... )

And worse:

Finally, to the extent relevant here, Mr. Liebowitz also took the position that he was never required to attend the mediation, as it was Mr. Freeman who was “the lawyer who will be primarily responsible for handling the trial of this matter.”... But Mr. Liebowitz acknowledged that Mr. Freeman had not even entered an appearance in this case and that he had never advised the Mediator or Mr. Newberg that Mr. Freeman was principal trial counsel. ... Moreover, he was forced to admit that the Court’s Order scheduling the initial pretrial conference had required “principal trial counsel” to attend “all pretrial conferences” and that he — not Mr. Freeman — had appeared on Mr. Usherson’s behalf at the initial pretrial conference. ... Similarly, Mr. Liebowitz claimed that Mr. Usherson was also never required to attend the mediation because, in Mr. Liebowitz’s view, the Court’s Order requiring “in-person” mediation referred only to the attorneys, “[n]ot parties.” ... When asked why, then, he had bothered to confirm that he and Mr. Usherson could be in New York on October 31st, and later asked the Mediator to excuse his and Mr. Usherson’s attendance, Mr. Liebowitz responded that he “wanted to double — double — you know, just cover myself.”

"He wanted to double -- double -- you know, just cover myself."

Remember, all of this is after he'd already been sanctioned multiple times for lying to the court. This is just two months after a different judge in the same courthouse had ordered him to get some professional training and warned him to stop this kind of thing. But he can't seem to help himself.

After that mess, there was still the matter of the bogus filing of the lawsuit over a photograph that didn't have a registered copyright. Of course, when the case was filed, Liebowitz claimed that it was registered, but (and, in case this is not clear, this is really, really bad) he was misrepresenting that to the court and used a registration on another photo -- and that they hadn't actually registered this one. Again, that's really bad. On top of all the other really bad stuff above.

Mr. Newberg revealed that he had just received the Copyright Office’s deposit files for the 046 Registration and confirmed that the Photograph was not in fact registered under that number. In response, Mr. Freeman admitted that it is the regular practice of the Liebowitz Law Firm to file copyright infringement cases without verifying that the works in question are properly registered, because of the “additional expense.”

Holy shit.

Mr. Freeman stated that “[t]he client will say to us, ‘This photograph is on deposit with this registration.’ And we take them for their word.” ... Mr. Freeman stated that, in this case, Mr. Usherson had “represented to us that he” had registered the Photograph.... Mr. Freeman further stated that, prior to filing the Complaint, the firm had checked on the Copyright Office’s website “that Mr. Usherson was the copyright claimant in that particular case.”

I mean, beyond all the other bad lawyering, what's described here is really bad lawyering. So, that left the judge to order both parties to address this issue, and guess how that worked out?

In his letter, Mr. Liebowitz admitted that “Paragraph 9 of the Complaint” was “inaccurate” because the Photograph was not, in fact, registered “as part of the 046 Registration.”... Mr. Liebowitz disclosed that his firm had registered the Photograph under registration number VAu 1-373-272 (the “272 Registration”), but not until August 22, 2019 — more than a month after the Complaint in this case was filed.... Mr. Liebowitz attributed the false statement in the Complaint to “clerical error,” noted that “administrative mistakes or clerical errors do happen in the copyright registration process,” and insisted that, but for dismissal of the case, Mr. Usherson could have cured the problem by amending the Complaint.

Sure, sure, clerical error. Happens all the time. But...

In Bandshell’s response, Mr. Newberg reminded the Court that, at the initial pretrial conference, Mr. Liebowitz had denied any knowledge of “other registrations or other photographs.”

Oh, right.

Mr. Newberg argued that Mr. Liebowitz’s new explanation thus “defie[d] belief.”

It does, but this is Richard Liebowitz we're talking about, so the bar is pretty low.

Mr. Newberg also pointed out that Mr. Liebowitz had incorrectly asserted that “the failure to obtain a registration prior to filing suit provides grounds to amend the complaint,”... , citing this Court’s decision in Malibu Media holding that premature filing necessitates dismissal.

So, the judge wasn't done yet. He then asked Liebowitz, the photographer Usherson, and the associate/Liebowitz's lawyer, to each give their sides of the "administrative mistake" story. And guess how that worked out?

In his declaration, Mr. Freeman admitted that the Photograph was registered by the Liebowitz Law Firm after the Complaint was filed but claimed that he had “no personal knowledge of this administrative mistake until after the January 8, 2020 hearing.” ... Mr. Freeman explained his representations at the close of the January 8th hearing by saying (not altogether convincingly) that he had been speaking based on his “general knowledge of [the Liebowitz Law Firm’s] custom and practices.” ... Mr. Usherson averred that he had “identifi[ed] the 046 Registration” when he “authorized Mr. Liebowitz to file a copyright infringement action.”... But Mr. Usherson also stated that, before the Complaint was filed, he had provided to the Liebowitz Law Firm a CD-ROM containing all of the photographs in the 046 Registration... The Photograph was not among them. Then, “[s]ometime after” the lawsuit was filed, Mr. Usherson provided the firm with a CD-ROM containing thirty additional photographs, including the Photograph, which the firm registered in the 272 Registration.

And last, and very most least, was Liebowitz's turn to try to dig himself out of the ditch he'd just kept digging. And, finally, he seemed to tell the truth and talk about how totally incompetent he was as a lawyer:

Finally, Mr. Liebowitz admitted that he had conducted no investigation into whether the Photograph was properly registered before filing the Complaint, even though he and his firm “had the ability as of June 2019 to double-check whether the Photograph was part of [the] images that were included on a CD-Rom that Mr. Usherson had previously sent.” ... Instead, Mr. Liebowitz relied solely on an entry in the firm’s internal case-tracking system, which noted that the Photograph was “associated with the 046 Registration.”... This entry was made by “a member of [the firm’s] administrative staff, Zachary Cuff.”... Mr. Liebowitz also stated that he had no role in filing the 272 Registration, which was performed by his firm’s “internal staff at the request of Mr. Cuff.” ... Mr. Liebowitz claimed that he did not realize the Photograph was not properly registered — which he described as a “technical pleading deficiency” — until “subsequent to the January 8, 2020 hearing.”

A technical deficiency? Yikes.

At some point this has to end, and it does with the Judge dropping the hammer:

Applying the foregoing standards here, the Court concludes that a range of substantial monetary and non-monetary sanctions against Mr. Liebowitz and his firm, including referral of Mr. Liebowitz to the Grievance Committee, are amply justified. Sanctions are appropriate for (1) Mr. Liebowitz’s repeated violations of the Court’s Orders; (2) Mr. Liebowitz’s repeated lies to the Court, including under oath, about whether the Mediator granted Mr. Usherson permission to participate in the mediation by telephone; and (3) the false allegation in the Complaint regarding registration of the Photograph and the failure to reasonably investigate the issue, both prior to filing suit and when put on notice about the issue during the litigation.

He then goes on to catalog, one by one, all of the things Liebowitz did which no lawyer should ever do. Friends, it goes on for 19 pages. There are three and a half pages detailing his "repeated violations of the court's orders." The court counts six such failures to follow court orders in this case alone. There are then eight and a half pages talking about Liebowitz's lies to the court. In the midst of discussing all of those, the judge notes that when called out on his lies in other cases, like this one, Liebowitz tries to cut and run:

In both cases, he tried — without success — to make his problems go away by voluntarily dismissing the case before sanctions were imposed. And in both cases, he ultimately sought to excuse his misconduct by invoking his relative youth and inexperience, his hefty caseload, and poor case management practices.

The Judge ain't buying it:

... while Mr. Liebowitz’s failures to obey court orders can arguably be explained (though not justified) by his relative inexperience, heavy caseload, and inadequate case management practices, the same cannot be said for his dishonesty.

And then we get this realization that Liebowitz seems to have a problem. And that problem is that he regularly lies under oath.

The simple fact is that Mr. Liebowitz has a problem: He does not feel constrained by the truth and, when cornered, has no compunction about lying, even under oath. It follows that sanctions should be, and are, imposed.

And then seven more pages, just about one particular lie: that the photograph was registered at the Copyright Office before the lawsuit was filed. Here, the judge notes that Liebowitz had gotten in trouble on this very issue before:

Finally, the evidence clearly and convincingly shows that Mr. Liebowitz brought — and maintained — this case in bad faith by willfully disregarding the fact that the case was fatally flawed from its inception. As noted, under Section 411(a) of the Copyright Act, an infringement action may not be filed “until . . . registration of the copyright claim has been made.” 17 U.S.C. § 411(a); see Rudkowski v. MIC Network, Inc., No. 17-CV-3647 (DAB), 2018 WL 1801307, at *3 (S.D.N.Y. Mar. 23, 2018) (warning Mr. Liebowitz that “possession of a registration certificate is a condition precedent to filing a copyright claim”). Paragraph 9 of the Complaint in this case did allege that the Photograph was registered as part of the 046 Registration. But in the face of irrefutable evidence to the contrary, Mr. Liebowitz now concedes — as he must — that that allegation was false and that the Photograph was not registered until August 22, 2019, almost a month and a half after the lawsuit was filed. Mr. Liebowitz has two responses to this extraordinary revelation. First, he seeks to trivialize it by calling it a “technical pleading deficiency” and suggesting that, but for the voluntary dismissal, he could have cured the problem by amending the Complaint.... Second, throwing his own client and a member of his administrative staff under the proverbial bus, he claims that he did not know about the untimely registration.... Neither response is persuasive

No. Neither response is persuasive at all. The Judge explains why the claim that this could be cured with an amended complaint is wrong, and notes that this wrongness was not just a mistake by Liebowitz but again part of the pattern you may have already noticed:

Notably, there is a strong argument that Mr. Liebowitz’s suggestion that he could have cured the defect through amendment is itself made in bad faith. First, it is hard to believe that he would be unaware of the recent law on that issue. His practice is devoted to copyright infringement cases; in little more than four years, he has filed approximately 2,500 such cases and, at the time of the mediation in this case, his firm had more than 400 such cases pending in federal court. ... But assuming for the sake of argument that Mr. Liebowitz does not keep up on developments in copyright law (which would be inexcusable, but is nevertheless all too plausible), he was explicitly put on notice of the fact that an untimely registration is not curable at the initial pretrial conference in this case, when Mr. Newberg first raised the issue and noted that dismissal would be required if the Photograph was registered after the Complaint was filed, citing Fourth Estate and this Court’s holding in Malibu Media that a premature filing “is a non-curable error.” ... Making matters even worse, Mr. Liebowitz persisted in pressing the point even after Mr. Newberg, in his post-hearing letter, explicitly noted that the suggestion was “incorrect,” citing Malibu Media and other precedent. ... These facts support an inference of bad faith

The court also does not look kindly on Liebowitz trying to blame others for this:

Mr. Liebowitz’s efforts to distance himself from responsibility for the untimely registration and the false allegation in the Complaint, and his attempt to pin blame on either his client or an administrative assistant at his firm, are similarly unavailing. For one thing, the evidence clearly and convincingly shows that Mr. Liebowitz did know about the untimely registration, at least as of August 22, 2019, when his firm registered the Photograph under the 272 Registration, if not earlier. Indeed, as Mr. Freeman explained at the January 8th hearing, the firm increasingly files copyright registration applications itself “[s]o we know for sure it’s on deposit.” And that is what happened here: Sometime after July 10, 2019, when the Complaint in this case was filed, Mr. Usherson sent the firm a CD-ROM containing all of the photographs that he had not yet registered — including the Photograph — and Mr. Liebowitz’s firm proceeded to register them.... The firm thus had knowledge that the Photograph had not been registered prior to the filing of the Complaint. And it is hard to believe that Mr. Liebowitz, as “lead counsel for Plaintiff” and the “founding member of Liebowitz Law Firm,”... was unaware of the fact himself. It is far more plausible — indeed likely — that, upon receiving the Photograph from Mr. Usherson, Mr. Liebowitz realized that it had not yet been registered and sought to quietly take care of the problem, hoping that Bandshell and the Court would be none the wiser and he would escape dismissal.

Indeed, the Judge points out that it's reasonable to infer that Liebowitz tried to get out of the case before all of this came to light:

It is no answer to say, as Mr. Liebowitz does, that he relied on his administrative assistant; Mr. Liebowitz is the lawyer who signed the Complaint containing the affirmatively false allegation. Making matters worse, Mr. Liebowitz and his firm received a second CD-ROM, which would have revealed that the Photograph was not among those registered as part of the 046 Registration, and the firm then registered the Photograph itself. And to top it off, at the initial pretrial conference in November 2019, Mr. Newberg specifically addressed the 272 Registration and raised doubts about whether the Photograph had been timely registered — putting Mr. Liebowitz on notice of what turns out to have been a fatal defect in the Complaint.... Under these circumstances, it was Mr. Liebowitz’s obligation to investigate whether the Photograph was properly registered.

Nevertheless, Mr. Liebowitz and his firm conducted no investigation until after the January 8, 2020 hearing and, even then, did so only because the Court ordered them to file a letter addressing the issue and, when that did not clear things up, declarations.... In fact, Mr. Liebowitz actively stonewalled Mr. Newberg’s request for discovery on the issue at the initial pretrial conference, stating: “I don’t know what defense counsel means about other registrations or other photographs. I will have to see what my office did, but this is the correct registration.”... It is hard to avoid the conclusion that Mr. Liebowitz hoped to settle the case before the truth came to light

It goes on. And on. And on. And the Judge points out that all of these mistakes have also shown up in other Liebowitz cases, so it's not like it's the first time he's been told about this stuff.

Finally, after 45 pages detailing what a terrible lawyer Liebowitz is, the Judge tries to figure out what sanctions are warranted. And he notes, that this is a special case:

If specific deterrence — that is, deterring Mr. Liebowitz from repeating his misconduct — were the sole consideration, it is not clear that any sanction (short of, perhaps, disbarment) would suffice. After all, his first lie in this case occurred only one day after he was dressed down by Judge Seibel for repeatedly lying about his grandfather’s death, and despite a warning from the Court to be “very, very, very careful” about what he said... And thereafter, as in the case before Judge Seibel, he dug his hole even deeper, repeating his lies over and over, including under oath. (In fact, he arguably expanded upon his lies, concocting, after the fact, his “custom and practice” excuse.) Even more troubling, as the discussion above makes clear, Mr. Liebowitz’s misconduct in this case is part of a larger pattern that has led judges on this court — and, as his practice has expanded to other districts, judges on other courts — to chastise him, impose sanctions on him, and require his clients to post bonds to cover future adverse awards of attorney’s fees and costs resulting from his misbehavior. The list of such cases is too long to cite here and, thus, is attached as an Appendix to this Opinion and Order. And even that list is likely not exhaustive. For one thing, there may well be orders imposing sanctions or requiring a bond that are not easily searchable on Westlaw or Lexis. For another, as this case, the case before Judge Seibel, and this Court’s prior decision imposing sanctions in Rice make clear, Mr. Liebowitz frequently drops his cases when the going gets tough and sanctions are on the horizon. ... Undoubtedly there are cases in which that tactic succeeded and Mr. Liebowitz was never held to account. Thus, there may be no sanction short of disbarment that would stop Mr. Liebowitz from further misconduct.

However, the Judge sadly notes, the court cannot disbar a lawyer. It can only send the issue to the Grievance Committee (which the judge absolutely does). So, now we get to the sanctions, which may not sound like much after all that: but he has to pay $103,517.49. This is basically the attorneys' fees and costs from the other side, plus an additional $20,000 (for the filing with the wrong registration). That's a decent amount of money, but not a staggering amount. As the court notes, though, when issuing sanctions they must be "no more severe than reasonably necessary to deter repetition... or comparable conduct by similarly situation persons." And, in theory, such a sanction might deter "similarly situation persons."

But, the real problems for Liebowitz are in the non-monetary arena. Beyond the fact that the court is sending this on to the Grievance Committee, which could lead to Liebowitz being disbarred, there are a few more things he needs to do:

Within thirty days of the date of this Opinion and Order, Mr. Liebowitz and his firm shall serve a copy of this Opinion and Order, either by email or by overnight courier, on every one of the firm’s current clients and Mr. Liebowitz shall file a declaration attesting to such service on ECF

And also:

By the same date, Mr. Liebowitz and his firm shall file a copy of this Opinion and Order on the docket of any currently pending case that was brought by Mr. Liebowitz or his firm and Mr. Liebowitz shall file a declaration attesting to the same on ECF;

And not just current cases, but every case he files in the next year:

In any action that is filed within one year of the date of this Opinion and Order by Mr. Liebowitz or his firm, Mr. Liebowitz and his firm shall file a copy of this Opinion and Order on the docket of the case within two days of filing the complaint or otherwise initiating the case; and

In any action that is filed within one year of the date of this Opinion and Order by Mr. Liebowitz or his firm that involves allegations or claims of copyright infringement, the complaint shall include as an attached exhibit a copy of the deposit files maintained by the U.S. Copyright Office reflecting prior registration of the relevant copyrighted work or works at issue.

Oh, and then after all of that, the Judge includes a lovely appendix detailing 40 other cases in which judges sanctioned or otherwise benchslapped Liebowitz. FORTY CASES. Each one includes a quote of the benchslap in question. It's like a "greatest hits" of benchslaps, but they're all for Richard Liebowitz. It includes some amazing ones I hadn't seen before (hey, there are only so many hours in a day), including:

In re Richard P. Liebowitz, No. 19-MC-80228 (JD), ECF No. 17, at 1-2 (N.D. Cal. June 12, 2020) (finding that Mr. Liebowitz “has falsely held himself out as a member of this Court’s bar on multiple occasions,” even though he “never has been a member”; noting that his “unprofessional and blameworthy conduct” is “consistent with the extensive public record of discipline he has amassed in courts across the United States”; and concluding that there are “good grounds for doubting that Liebowitz should be permitted to practice in this District even on a pro hac vice basis”).

Oof. And this coming right after it:

Geerds v. San Francisco Bay View Inc., No. 19-CV-6465 (JST), ECF No. 29 (N.D. Cal. June 10, 2020) (denying Mr. Liebowitz’s motion for admission pro hac vice in a case he filed in the Northern District on October 8, 2019, one day after he was disbarred in In re Richard P. Liebowitz, No. 19-MC-80228 (JD), ECF No. 3 (N.D. Cal. Oct. 7, 2019)).

And:

Alvarado v. Mother Jones, LLC, No. 19-CV-6417 (JST), ECF No. 25, at 2-4 (N.D. Cal. May 14, 2020) (denying Mr. Liebowitz’s motion to appear pro hac vice after finding that Mr. Liebowitz continues to “regularly” file and litigate cases in the Northern District of California following his order of disbarment in In re Richard P. Liebowitz).

And:

Mondragon v. Nosrak LLC, No. 19-CV-1437 (CMA) (NRN), 2020 WL 2395641, at *1, *14 (D. Colo. May 11, 2020) (concluding that “Mr. Liebowitz’s continued practice of law represents a clear and present danger to the fair and efficient administration of justice, and steps should be taken promptly by appropriate disciplinary authorities to suspend his ability to file new cases unless and until he has demonstrated he has appropriate systems in place to assure regular compliance with court rules and rules of professional conduct,” and requiring that Mr. Liebowitz associate with a Colorado-based attorney with at least five years of experience, who must co-sign any filings in the case, and that Mr. Liebowitz file a copy of the sanctions order in all other cases he has filed in the District of Colorado or files in the following sixth months)

And on and on and on.

I've asked in the past why anyone who can do a basic Google search would hire Richard Liebowitz after being repeatedly sanctioned (again and again and again) over these issues. There are other copyright lawyers out there. There are even other trollish copyright lawyers who will take on most of these cases. But none of them seem to run into these issues so consistently and to so regularly demonstrate their own incompetence at practicing law as Richard Liebowitz.

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Posted on Techdirt - 30 June 2020 @ 9:23am

I'd Bet Ted Cruz Will Start Supporting Section 230 Once He Realizes He's On The Hook For Parler's Legal Expenses

from the put-your-money-where-your-mouth-is,-ted dept

Senator Ted Cruz now loves Parler, the Twitter alternative that a bunch of Trump fans mistakenly believe won't moderate content. We've already shown that's false. However, there's another issue with Parler that some are calling out -- which is that you run a risk if you agree to that site's user agreement, because of the following that is buried as #14 on the user agreement:

You agree to defend and indemnify Parler, as well as any of its officers, directors, employees, and agents, from and against any and all claims, actions, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to all attorneys fees) arising from or relating to your access to and use of the Services. Parler will have the right to conduct its own defense, at your expense, in any action or proceeding covered by this indemnity.

Now, as we've discussed in the past, many social media sites have indemnity clauses, though they're often much more limited (also, in looking now, I'm pleasantly surprised that it looks like a few have removed indemnity clauses altogether -- I can't find one in Twitter or Tumbler's current terms for example). We've also discussed why people should be wary of many indemnity claims.

Parler's indemnity clause was first called out by @TheWolfLawayer on Twitter, and then later by The Verge's Editor in Chief, Nilay Patel, who called it a "reverse 230 clause."

I wouldn't quite call it a "reverse 230 clause" and I think that some of the screaming about this clause is a bit overblown (again, many other platforms have similar indemnity clauses, though many are at least a bit more limited to situations where the users actually violated some law).

However, this clause should make Ted Cruz and every other Parler user huge supporters of Section 230. Now, we already know that Cruz hates Section 230, has misinterpreted it frequently, and has supported calls to get rid of it, falsely believing that this will somehow stop content moderation from being used against Nazis or something.

But here's the thing: since Ted Cruz is now on the hook if anyone sues Parler over Ted Cruz's speech on that platform... well, then Ted Cruz might want to become a big supporter of Section 230 right quick. Because it will be Section 230 that gets such a lawsuit tossed out quickly and relatively inexpensively. Without Section 230 -- even if the case is frivolous -- Parler's legal fees (by which, thanks to this legal agreement, we mean Ted Cruz's legal fees) would be much, much higher, because the lack of 230 would create a procedural mess, which would likely extend any court case greatly, and rack up Cruz's legal fees.

This is not to suggest that anyone should or would file such a lawsuit against Parler, but seeing how many misdirected cases we've seen filed against sites like Twitter over users' speech on that platform, it wouldn't be surprising if Parler eventually faces similar such lawsuits. And, if that's the case, any of its users (including Cruz) will then be in deep shit if they don't have 230 helping to reduce their legal liability.

So, Ted, maybe drop the nonsense and the lying about 230, and recognize: Section 230 protects you too, especially given your new favorite social media's excessive terms of service.

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Posted on Techdirt - 29 June 2020 @ 7:52pm

Twitch And Reddit Ramp Up Their Enforcement Against 'Hateful' Content

from the content-moderation-is-a-process dept

On Monday, both Twitch and Reddit ramped up their efforts to deal with various forms of hateful content on their platforms -- and both of them ended up shutting down some forums related to President Trump -- which inevitably (but incorrectly) resulted in people again screaming about "anti-conservative bias." Reddit kicked things off by announcing new content policies (which you can read here). The key change was an expanded rule against communities that "promote hate based on identity or vulnerability."

Based on that, Reddit has permanently shuttered around 2,000 subreddits, including, most notably the r/The_Donald subreddit for Trump fans. However, as if they were expecting the bogus claims of anti-conservative bias to show up in response, Reddit also shut down r/ChapoTrapHouse, which might be considered the flip side to The_Donald subreddit, but from the left end of the traditional political spectrum. Both communities were known for their anger spewing wackos. Reddit painted its decision to suspend both as a way to show that it is applying the rules equally across all its subreddits:

All communities on Reddit must abide by our content policy in good faith. We banned r/The_Donald because it has not done so, despite every opportunity. The community has consistently hosted and upvoted more rule-breaking content than average (Rule 1), antagonized us and other communities (Rules 2 and 8), and its mods have refused to meet our most basic expectations. Until now, we’ve worked in good faith to help them preserve the community as a space for its users—through warnings, mod changes, quarantining, and more.

Though smaller, r/ChapoTrapHouse was banned for similar reasons: They consistently host rule-breaking content and their mods have demonstrated no intention of reining in their community.

To be clear, views across the political spectrum are allowed on Reddit—but all communities must work within our policies and do so in good faith, without exception.

Of course, because content moderation at scale is impossible to do well, I've already seen plenty of complaints about other Reddit forums that the site failed to take down. And I fully expect that at some point a forum will be shut down by overzealous moderators. Because that's the nature of content moderation.

Meanwhile, over on the Twitch side, the site has been coming under increasing attacks for enabling a lot of harassment. Since much of Twitch is live-streaming, it's that much more impossible to monitor. Last week, the company promised to take harassment claims more seriously and began suspending some users. On Monday, that included a temporary ban of the president's campaign account on the site. Apparently, the move was in response to comments made at recent Trump rallies, that Twitch claims violated its policies.

Twitch pointed to comments made at two rallies that led to its decision. At a campaign rally in 2016, which was recently rebroadcast on the platform, Trump said Mexico was sending over its bad actors, such as rapists or drug dealers. Twitch also pointed to Trump’s recent Tulsa rally, where he told a fictional story of a ‘tough hombre’ invading someone’s home.

“Hateful conduct is not allowed on Twitch. In line with our policies, President Trump’s channel has been issued a temporary suspension from Twitch for comments made on stream, and the offending content has been removed,” a Twitch spokesperson told CNBC.

Again, these platforms are in an impossible position -- which we detailed in our post about the content moderation impossibility theorem. If they do nothing, tons of people will call out these platforms for inaction. But in pulling down these accounts, a bunch of other people will now be furious as well. And sooner or later these platforms will pull down other accounts that lots of other people (no matter what they're political leanings) will get upset about as well. This is the nature of content moderation.

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Posted on Techdirt - 29 June 2020 @ 3:44pm

Knight Foundation Grant To Copia To Research Content Moderation, Governance, Rules & Norms For Internet Infrastructure

from the excited-to-dig-in dept

So many of the discussions around content moderation have focused on the so-called "edge-providers" (the companies that are more user-facing). We all know the stories about content moderation dealing with Facebook, Twitter, YouTube, Google, etc. But for a while now we've been concerned about how the debate will play out regarding content moderation at the infrastructure layers -- that is the behind-the-scenes providers that people don't always even know exist. This includes hosting companies, DNS providers, domain registrars, CDNs, broadband providers and many, many more.

So we're (in the form of our Copia Institute think tank) are excited to be a part of a new grant to research this issue, with a specific focus on how these infrastructure content moderation issues may impact competition, privacy, and liability. We're planning to do some (virtual, for the time being!) gatherings, and putting together some research about these issues as well.

This is the first time we've worked with the Knight Foundation, and we're excited that they were willing to step up and support such important work.

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