We are living in truly dystopian times. As you may have heard, this week there have been a bunch of stories regarding the somewhat systematic dismantling of US Postal Service operations in what appears to be a coordinated effort by this administration to foil the process of sending and collecting mail-in ballots. But, apparently, rather than ensuring its own ability to handle mail-in ballots for this election, the US Postal service is trying to... patent blockchain-based voting?

As you almost certainly know, President Trump has been -- without any factual basis at all -- decrying mail-in ballots, despite the fact that they have been proven safe and effective. As we're in the middle of a pandemic -- made significantly worse by this administration's own incompetence -- whose made mode of transmission is gathering indoors, the need for more mail-in ballots is obvious to anyone who cares about a functioning democracy. Instead, the President has apparently focused on making it impossible. While that seemed like a conspiracy theory to many, he admitted he was holding up funding for exactly that reason:

"They want three and a half billion dollars for something that'll turn out to be fraudulent, that's election money basically. They want three and a half billion dollars for the mail-in votes. Universal mail-in ballots. They want $25 billion, billion, for the Post Office. Now they need that money in order to make the Post Office work so it can take all of these millions and millions of ballots," Trump said, repeating his false claims that mail-in voting would be "fraudulent."

"But if they don't get those two items that means you can't have universal mail-in voting because you they're not equipped to have it," Trump added.

Except, again, there is no evidence to support the claims of mail-in ballot fraud. Indeed, Trump and the first lady themselves have requested mail-in ballots in Florida (where he does not reside) and when questioned as to why it was okay for their to be mail-in ballots there, has said it works in Florida because there's a Republican governor.

So Florida has got a great Republican governor, and it had a great Republican governor. Ron DeSantis, Rick Scott, two great governors. And over a long period of time, they’ve been able to get the absentee ballots done extremely professionally. Florida is different from other states.

He's also supported mail-in ballots among his supporters in North Carolina. Of course, it's notable that North Carolina is basically the one place where there was some evidence of mail-ballot fraud... conducted by Republican operatives.

At the same time, however, beyond just blocking funding for the USPS, other efforts have been made to harm the ability to handle mail-in ballots. The Postmaster General, Louis DeJoy, who was only just appointed in May, fired a bunch of top USPS execs in a "Friday Night Massacre" a week ago. And this week, it seems like there's been a new story every hour or so. All over the country, the USPS started removing and dismantling expensive postal sorting machines for now clear reason.

There have also been reports in places like Montana and Oregon that the familiar blue postal boxes were being removed for unclear reasons.

To drive all of this home, the USPS has directly warned 46 states (and Washington DC) that it may have delays in handling mail-in ballots.

But have no fear (or, really, have lots and lots of fear), because in the midst of all of this, a USPS patent application for blockchain-based mail-in ballots has been released. Applied for back in February, but just now revealed, the patent application first noticed by Jamie Love is for:

A voting system that can use the security of blockchain and the mail to provide a reliable voting system. A registered voter receives a computer readable code in the mail and confirms identity and confirms correct ballot information in an election. The system separates voter identification and votes to ensure vote anonymity, and stores votes on a distributed ledger in a blockchain.

Of course, as we've highlighted in the past, while some people keep pushing for blockchain-based voting it solves none of the problems of actual online voting, and leverages none of the benefits of the blockchain. Indeed, basically every blockchain-based voting system to date has been a dumpster fire of security concerns and, given everything else discussed above, you can bet the same would be true for any USPS-based blockchain voting system.

Even so, the timing of this release of this patent, in the midst of everything else going on with the USPS and efforts to suppress mail-in ballots (well, at least from those who don't support the President) is the kind of coincidental timing that even the worst Hollywood writers would reject as just too on the nose. Alas...

Summary: After an investigation by BuzzFeed uncovered several accounts trafficking in paid access to "decks" -- Tweetdeck accounts from which buyers could mass-retweet their own tweets to make them go "viral" -- Twitter acted to shut down the abusive accounts.

Most of the accounts were run by teens who leveraged the tools provided by Twitter-owned Tweetdeck to provide mass exposure to tweets for paying customers. Until Twitter acted, users who saw their tweets go viral under other users' names tried to police the problem by naming paid accounts and putting them on blocklists.

Twitter's Rules expressly forbid users from "artificially inflating account interactions”. But most accounts were apparently removed under Twitter's anti-spam policy -- one it beefed up after BuzzFeed published its investigation. The biggest change was the removal of the ability to simultaneously retweet tweets from several different accounts, rendering these "decks" built by "Tweetdeckers" mostly useless. Tweetdeckers responded by taking a manual approach to faux virality, sending direct messages requesting mutual retweets of posted content.

Unlike other corrective actions taken by Twitter in response to mass abuse, this cleanup process appears to have resulted in almost no collateral damage. Some users complained their follower counts had dropped, but this was likely the result of near-simultaneous moderation efforts targeting bot accounts.

Decisions to be made by Twitter:

• Do additional moderation efforts -- AI or otherwise -- need to be deployed to detect abuse of Twitter Rules?
• How often do these efforts mistakenly target legitimately "viral" content?
• Will altering Tweetdeck features harm users who aren't engaged in the buying and selling of "engagement?"
• Will power users or those seeking to abuse the rules move to other third-party offerings to avoid moderation efforts?
• Is there any way to neutralize "retweet for retweet" requests in direct messages without raising concerns about user privacy?

Questions and policy implications to consider:

• Does targeting spam more aggressively risk alienating advertisers who rely on repetitive/scheduled posts and active user engagement?
• Does spam (in whatever form -- including the manufactured virality seen above) still provide some value for Twitter as a company, considering it relies on active users and engagement to secure funding and/or sell ad space to companies?
• Do viral posts still add value for Twitter users, even if the source of the virality is illegitimate?
• Will increased moderation of spam reduce user engagement during events where advertising efforts and user engagement are routinely expected to increase (elections, sporting events, etc.)?  

Resolution: Twitter moved quickly to disable and delete accounts linked to the marketing of user engagement. It chose to use its anti-spam rules as justification for account removals, even though users were allegedly engaged in other violations of the terms of service. The buying and selling of Twitter followers -- along with retweets and likes -- continues to be a problem, but Twitter clearly has a toolset in place that is effective against the behavior seen here. Due to the reliance on spam rules, the alterations to Tweetdeck -- a favorite of Twitter power users -- appear to have done minimal damage to legitimate users who enjoy the advantages of this expanded product.

Clearview -- the facial recognition company selling law enforcement agencies (and others) access to billions of photos and personal info scraped from the web -- is facing lawsuits over its business model, which appears to violate some states' data privacy laws. It's also been hit with cease-and-desist requests from a number of companies whose data has been scraped.

What was once a toy for billionaires has become a toy for cops, who are encouraged to test out the software by running searches on friends and family members. Clearview claims it's been instrumental in fighting crime, but evidence of this remains nonexistent.

Now, the company appears to be going on the offensive. Clearview has already argued -- through its legal rep, Tor Ekelund -- that Section 230 of the CDA insulates it against lawsuits over its use of third-party content. It's a novel argument, considering Clearview isn't actually the third party. That would be the original hosts of the content. Clearview is something else and it's not clear Section 230 applies to these lawsuits, which are about what Clearview does with the content, rather than over the content itself.

The New York Times reports Clearview has hired a prominent First Amendment lawyer -- one that has defended the paper in the past -- to make the argument that selling government agencies data scraped from the web is protected speech.

Floyd Abrams, one of the most prominent First Amendment lawyers in the country, has a new client: the facial recognition company Clearview AI.

[...]

“Floyd Abrams is without peer as the nation’s pre-eminent First Amendment attorney, and it is clear that there are potentially groundbreaking First Amendment issues relating to the cases involving Clearview AI,” said Lisa Linden, a spokeswoman for the company.

Abrams is the lawyer who gave us the Citizens United decision -- the one that allows companies and other "non-persons" to express their political beliefs through unrestricted campaign donations. If the arguments fall along these lines, Abrams will be claiming that Clearview has the First Amendment right to "talk" about other people to government agencies and private customers. If people want to talk about themselves on the open web, Clearview can't be prevented from "discussing" what it's observed with anyone who asks questions about who these people are. Of course, Abrams was also a lawyer for Hollywood who insisted that copyright being used to take down websites, while possibly censoring speech, wasn't really a 1st Amendment concern, which has always raised questions about how committed he is to the 1st Amendment as opposed to just supporting the interests of his clients.

Abrams was unaware of Clearview before being asked to represent it. The Times notes the lawyer doesn't even own a smartphone. But he's willing to push a First Amendment argument that roughly aligns with those made by other law enforcement tech companies: that collecting data en masse from public places and selling access to this data to the government is protected speech.

Mr. Abrams said that in his view, while the technology involved was novel, the premise of the cases was a company’s right to create and disseminate information.

This may be protected under the First Amendment, but it's not all that useful to its Section 230 arguments. The lawsuits it's facing deal with what Clearview does with the content it scrapes, not the content itself, so the Section 230 argument seems pointless. The First Amendment question is far more interesting. And, as odious as the company is, limiting its right to gather and disseminate data by trimming back the First Amendment would likely result in a lot of unpleasant collateral damage.

Conservative criticism of social media content moderation is often characterized by misinformation and unfounded allegations. Factually unsupported assertions that federal law requires firms such as Facebook and Twitter to choose whether they are “platforms” and “publishers” — and dubious claims that “Big Tech” is engaged in a concerted anti-conservative campaign are prominent — but they’re not the most interesting feature of the present content moderation debate.

More interesting is the lack of imagination that seems to dominate the discourse. Rather than exploring different content moderation regimes, conservatives have focused on shaping the rules of established companies through regulation and legislation. The ironic result of this narrow thinking could be the entrenchment of market incumbents.

Conservative complaints about Silicon Valley censorship are often based on poor methodological study and collections of anecdotes. Although conclusive evidence that Silicon Valley is engaged in an anti-conservative campaign is lacking, many Republican lawmakers have used claims of bias as the basis for legislative proposals that would radically change how the Internet is regulated and governed.

Conservative critics of the most prominent social media companies are correct to note that content moderation at Facebook, Twitter, and YouTube (owned by Google) is centralized, with human content moderators and machine learning tools tasked with implementing a single governing set of content guidelines. This centralized system is far from perfect, and in an environment where Twitter users post half a billion tweets a day and YouTube account holders upload about 500 hours of video a minute false positives and false negatives should be expected.

In addition, speech intended for specific audiences may be misunderstood by moderators from different backgrounds, but at scale, firms simply lack the time or resources to provide boutique, culturally-aware governance.

Centralized content moderation also suffers from a perceived lack of transparency and process, with Silicon Valley behemoths considered by many to be secretive, distant institutions with few incentives to care about an individual case when their empires include millions or billions.

Republican responses to allegations of political bias have focused on Section 230 of the Communications Decency Act, the law that shields owners of interactive computer services such as social media companies, newspaper comments sections, university and library websites, and others from being held liable for the vast majority of content posted by third party users.

A separate post would be required to dissect every Republican Section 230 proposal, but it is fair to say that most take aim at Section 230 with the intent of reforming social media companies’ content moderation rules. Proposals include conditioning Section 230 protections on “politically neutral” content moderation policies.

But while the modern debate on social media has focused on Twitter, Facebook, YouTube, and other household name companies, Republican lawmakers should remember that the centralized content moderation model is not a necessary feature of social media and that there are other models that offer solutions “big tech” critics across the political spectrum seek.

Although not household names, there are social media services that implement more permissive content moderation policies. Facebook, Twitter, and YouTube are hardly alone in the social media universe. The Internet is full of social media sites. Indeed, some of these sites – such as Gab and Parler – emerged as centralized alternatives to Twitter, with their creators citing concerns about big tech bias.

There are social media sites that reject centralization altogether. Mastodon is an example of a social media service that embraces a governance structure very different from those seen in big tech social media. It is open source and allows users to host their own nodes.

Diaspora is another social media service that rejects the centralized governance of Facebook, Twitter, and YouTube. It is a non-profit and based on the principles of decentralization, privacy, and freedom to alter and tweak source code. There are also LBRY and the InterPlanetary File System; peer-to-peer decentralized protocols that allow users to share content absent any central governing authority.

Conservatives who want a social media service where they can form their own communities, find like-minded users, and build content moderation rules consistent with their values have plenty of options available.

Nonetheless, conservatives concerned about big tech bias seem unaware of the plethora of options available. It has never been easier for conservatives to build their own communities, share ideas, and seek to convince others of their ideology. Sadly, rather than embrace competition and innovation, many conservative activists and lawmakers have turned to government.

The risks are difficult to overstate. Powerful market incumbents may oppose regulation, but once the writing is on the wall, they will take steps to ensure that they, and not smaller competitors, are able to comply with new regulations. The result will be the entrenchment of the companies conservative activists criticize. When conservative lawmakers and activists claim that Section 230 is a big tech subsidy, they are engaged in misleading rhetoric that is precisely the opposite of the truth. If anything, Section 230 should be considered a subsidy for big tech competitors. It ensures that they do not need to hire teams of lawmakers, saving them startup costs.

An unintended consequence of Section 230 reforms and legislation motivated by weak claims of anti-conservative bias could be big tech getting bigger, with Facebook, Google, and Twitter continuing to dominate American speech online.

We are still in the early years of online speech, yet activists and lawmakers seem to have forgotten much of its short history. Firms that at one time seem to dominate online speech, online search, and online entertainment have been displaced in the past. AskJeeves, AOL instant messenger, MySpace, and many others have fallen into obscurity or disappeared altogether. Facebook, Twitter, and Google may be dominant today, but their continued success is not an axiom of history.

Conservatives convinced of big tech’s anti-conservative bias ought to consider the numerous platforms and competing content moderation models available. The future of online speech does not have to be centralized and dominated by a handful of firms, but continued calls for regulation in the name of content moderation risks further empowering market incumbents.

Matthew Feeney is the director of Cato’s Project on Emerging Technologies, where he works on issues concerning the intersection of new technologies and civil liberties. Before coming to Cato, Matthew worked at Reason magazine as assistant editor of Reason​.com. He has also worked at The American Conservative, the Liberal Democrats, and the Institute of Economic Affairs. His writing has appeared in The New York Times, The Washington Post, HuffPost, The Hill, the San Francisco Chronicle, the Washington Examiner, City A.M., and others. He also contributed a chapter to libertarianism.org’s Visions of Liberty. Matthew received both his B.A and M.A in philosophy from the University of Reading.

Back in June, we wrote about how a judge had sided with Twitter in the very first of Rep. Devin Nunes' long series of frivolous SLAPP suits, saying that the company was clearly protected from lawsuit by Section 230 and that it did not need to reveal the identity of the two satirical Twitter accounts who had mocked Devin Nunes so mercilessly that he decided to ignore his oath to protect the Constitution (which, last I checked, still includes the 1st Amendment) and sued.

Some assumed that this was the end of the lawsuit. It was not. First of all, the lawsuit against the two satirical accounts (one claiming to be Devin Nunes' cow and one claiming to be Devin Nunes' Mom) along with political consultant Liz Mair, were still alive and kicking unfortunately. But also, Nunes is still attempting to bring Twitter back into the case. He has filed a proposed amended complaint that his lawyer -- the ever ridiculous Steven Biss -- argues should get around Section 230 and make Twitter a party to the lawsuit. And... just as I originally finished writing this story, Judge John Marshall rejected that attempt. At around the same time, Liz Mair has filed her attempt to get the case against her dismissed in both this case, as well as in the second case Nunes filed against her.

Let's start by looking at the proposed amended complaint. As "amended complaints" go, following a judge completely dismantling your legal arguments, this is... not very amended. Indeed, I scrolled through both the original and the amended complaint and they appear to be identical, page for page (if there are any changes, they are so minor as to be cosmetic, and I couldn't see any), right up until the very, very end. While the original complaint had five claims (negligence, defamation per se, insulting words, common law conspiracy, and injunction), the new one has... six. After it includes the identical (as far as I can tell) first five claims, it adds in a sixth: "aiding and abetting." This is Biss's weak ass attempt to bring Twitter back into the case and get around Section 230:

Twitter aided and abetted the defamation of Nunes, the violations of § 8.01-45 of the Code, and the conspiracy by Mair, Mair Strategies, @DevinNunesMom and @DevinCow. It is, therefore, jointly liable for those torts....

Twitter actively participated in, aided and abetted Mair, Mair Strategies, @DevinNunesMom and @DevinCow’s intentional torts by (a) knowingly hosting and monetizing the abusive, hateful and defamatory content – providing both a voice, exposure to a massive audience and financial incentive to the defamers – thereby material contributing to the defamation, (b) using its algorithms and targeting capabilities to surreptitiously and deceptively shadow-ban Nunes, impeding his speech, and, thereby, amplifying the defamation of Mair, Mair Strategies, @DevinNunesMom, @DevinCow and others, (c) intentionally abandoning and refusing to enforce its Terms of Service and Twitter Rules against Mair, Mair Strategies, @DevinNunesMom, @DevinCow and others who post defamatory statements about Nunes with the express purpose to facilitate the defamation, (d) completely ignoring lawful complaints about offensive content and by allowing that content to remain accessible to the public and to be republished, (e) by permitting its platform to be populated and used by bots whose sole purpose it was/is to republish the false and defamatory statements by Mair, Mair Strategies, @DevinNunesMom, @DevinCow and others who post defamatory statements about Nunes, (f) by selectively encouraging defamation of Nunes in order to further a left-wing political agenda, to undermine public confidence in Nunes and to benefit his opponents and opponents of the Republican Party. In this case, Twitter contributed materially to the illegal conduct of defamers Mair, @DevinNunesMom and @DevinCow. Twitter provided a “public square” for these Democratic political operatives. Twitter intended to generate and proliferate the false and defamatory statements about Nunes in order to influence the outcome of the 2018 Congressional election and to intimidate Nunes and interfere with his important investigation of Russian involvement in the 2016 Presidential Election. Twitter used its platform, including its proprietary algorithms, selectively to convey its corporate/institutional viewpoint, its position on issues and candidates for office, such as Nunes, to influence the outcome of elections, such as the 2018 election for California’s 22nd Congressional District, and as a dumping ground for opposition research.

This is... not how any of this works. At all. You can't just ignore Section 230 by claiming a website "aided and abetted" the bogus other claims you're arguing.

And thus it did not take long for Judge Marshall to reject this in a short letter -- not even getting at the ridiculous amended complaint, but rather pointing out that Biss is just bad at his job and filed his request for leave to amend way too late:

The Plaintiff in oral argument on the motion to dismiss referenced leave to amend to file an amended complaint even though there was no notice of hearing filed for that to be heard on June 12, 2020. The Plaintiff did not file a motion for leave to amend to add a count against Twitter until July 28 four days after the order had been entered dismissing Twitter from the case and over a month after Plaintiff had been notified of the dismissal of Twitter by the court's opinion letter.

The court denies Plaintiff's request for leave to amend as the dismissal of Twitter as a defendant occurred prior to the filing of a motion for leave to amend.

In other words, as will be no surprise to regular readers of this saga, Steven Biss is bad at his job.

As for Mair, she is trying to (quite rightly) get out of both of the nonsense SLAPP suits that Nunes has filed against her, and her arguments in both cases is the legal equivalent of "WTF is this, I don't even..." but in legalese.

First, many (if the "statements" addressed in the Complaint consist only of hyperlinks or editorialized descriptions, rather than the exact words of the alleged defamatory statement. Count II must be dismissed as to each and every one of these statements: "Good pleading requires that the exact words spoken or written must be set out in the declaration in knee verba. Indeed, the pleading must go further--that is, it must purport to give the exact words." ... Particularly in a case brought by an elected official against private citizens who dared to challenge his qualifications for office, the core requirements of defamation law must be respected.

Then her lawyer points out that even if Nunes had shown defamatory statements by Mair, which he has not, he hasn't shown actual malice (which means that Mair knew they were false, or said them with reckless disregard to whether or not they were true), which is the required standard for defamation of a public figure. The actual malice standard -- for very good reason -- is where many vexatious SLAPP suits go to die:

As the Virginia Supreme Court has recognized, "the burden of proving 'actual malice' is upon the plaintiff[,] who must demonstrate by clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubt as to the truth of his statement."... This demanding standard applies with full force even where criticism "include[s] vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."...

The Complaint fails that standard. Its allegations of "actual malice" are conclusory and thus inadequate.... This deficiency is not cured by Rep. Nunes's repeated allegations that Mair harbored "hate[]," "disdain," and "ill will" towards him...

In fact, the Complaint's non-conclusory allegations defeat an inference of actual malice.... Most of Mair's allegedly defamatory statements were based directly on news reports and court filings whose truth Mair had no reason to doubt.... There is thus no valid basis to infer that she acted with a "high degree of awareness of probable falsity."

And then, of course, there's the other reason why most SLAPP suits from angry, insecure, brats tend to fail: what they got mad about is usually someone's opinion. As it was here.

Here, many of the alleged defamatory statements by Mair rank as opinions. Those include (but are not limited to) declaring that Rep. Nunes is "a clown with big league ethical issues," calling him "Dirty Devin," deeming controversial use of PAC funds to be "a legal problem, not just an ethical or optics-related one," stating that Rep. Nunes should be held accountable for "having voted for warrantless wiretapping and unlimited surveillance of Americans' emails ([including] Carter Page's)," and stating that Congress should "prioritize review of Rep. Nunes' investment and involvement in the Alpha Omega Winery, and the facts reported by the Fresno Bee." None of these statements can be described as objectively "true" or "false." Each is a subjective opinion and thus shielded by the First Amendment.

That conclusion is confirmed by context. Mair was commenting in the political arena about the news of the day, and "[p]otentially defamatory statements" that are "made during the course of an ongoing public controversy" are "likely to be understood to be rhetorical opinion" rather than "assertions of fact." Judge Robert D. Sack, 1 Sack on Defamation: Libel, Slander, and Related Problems.... If Rep. Nunes is allowed to hold citizens liable for expressing political opinions, then Americans throughout the Nation will face legal peril as they engage in democracy.

There's a lot more in the response but those are the key points on the defamation claims. The other claims are just silly add-ons that are just attempts to add emphasis and try to get around the obviously bogus defamation claims. I will note the dismantling of the "conspiracy" claims is particularly fun:

In his efforts to establish a conspiratorial agreement, Rep. Nunes relies mainly on allegations that three of the Defendants tweeted about similar subjects and occasionally retweeted or liked each other's tweets.... But if that were the standard, millions of Americans would be shocked to learn that they are enmeshed in all manner of conspiracies. It would not comport with the First Amendment of the US. Constitution--or Article I, Section 12 of the Virginia Constitution--to treat routine political speech on social media as a coordinated plot.

Mair does try to make use of Virginia's (unfortunately weak, though hopefully soon to change) anti-SLAPP law. The argument in the satirical tweets lawsuit also includes the fact that Nunes appears to have sued Mair over the same basic points in his second SLAPP lawsuit (the one against McClatchy and Mair) saying that he's trying to get two shots at this same issue in separate courts -- and says it's "improper claim splitting."

In the filing to get out of that other case, Mair notes that this time she's only being sued for an alleged conspiracy, which is also utter nonsense:

This lawsuit is a direct assault on the freedom of speech. Devin Nunes (a Member of Congress) has sued Liz Mair (a private citizen) for tweeting articles critical of his conduct while in public office--and for sharing an opinion critical of him with a reporter at McClatchy.

Nunes does not allege in this case that Mair committed defamation. Instead, he seeks to hold Mair liable for allegedly defamatory statements published by McClatchy. To do so, he posits that Mair somehow entered into an illegal conspiracy with McClatchy. But the most essential element of any conspiracy claim is an agreement--a meeting of the minds--to carry out unlawful acts together. And the Complaint comes nowhere close to adequately alleging the existence of such a conspiratorial agreement: it fails to allege the requisite details about when, where, and how this agreement supposedly came into being; it papers over those defects with conclusory assertions; and it resorts to exceedingly unreasonable inferences from a mere handful of factual allegations. Simply put, sharing political opinions with a newspaper--and then tweeting, retweeting, and liking relevant articles by that newspaper--do not suggest the existence of an illegal conspiracy. They are signs that we live in a democracy where people can express political opinions and criticize elected officials on social media platforms. For good reason, no court has ever upheld a conspiracy theory--based mainly on tweets and retweets--like the one that Nunes has advanced here.

That is reason enough to dismiss the Complaint. Yet there is more: in order to impose liability on Mair for allegedly conspiring with McClatchy to defame him, Nunes must adequately allege that McClatchy actually defamed him. None of the alleged defamatory statements described in the Complaint, however, are actually defamatory: most of them are not pleaded with their exact words and so must be dismissed; Nunes has failed to allege that any of them was published with actual malice; and most of them are categorically non-actionable as a matter of law.

It is ridiculous that these cases have gone on this long and are still continuing. For what it's worth the @DevinCow account has a GoFundMe campaign set up for its legal fees, and Mair is accepting funds via her Swamp Accountability Project page.

One hopes the judges in these two cases recognizes how insane all this is and benchslaps Nunes and Biss.

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Lately so many of our copyright trolling stories have been about Richard Liebowitz or Mathew Higbee, but we shouldn't forget about Malibu Media, which is still out there doing Malibu Media things. The latest, to come out of a court in Connecticut is that the infamous copyright troll has had a default judgment request denied. This is exceptionally rare.

Default judgments are what you get when the other side doesn't even bother to show up. They're almost always granted as a matter of course (though, collecting on a default judgment is not always so easy). However, in this case US District Court judge Jeffrey Meyer isn't buying what Malibu Media is selling. Judge Meyer jumps right in and points out how unfair it is to blame the ISP account holder for actions that may have been done by someone else:

Imagine that someone accesses the internet via a particular internet protocol (“IP”) address and illegally downloads movies. That IP address was assigned by an internet service provider (“ISP”) to one of its subscriber accounts. Is it fair to say that the ISP account subscriber—the person who pays the internet bill—is the individual who must have engaged in the illegal activity and who should pay a large damages award if he or she does not appear in court to deny doing anything wrong? At a time when wireless internet networks and personal electronic devices are ubiquitous, and when network passwords, logins for TV streaming services, and Amazon accounts are freely shared with family, friends, roommates, businesses, and even strangers, I don’t think so.

From there, despite the defendant providing no defense at all, the judge says that Malibu Media "has not alleged plausible grounds" for the case and thus the request must be denied:

Defendant John Doe is the named subscriber to a Cox Communications internet service account that is associated with the IP address that was used to unlawfully download several of Malibu Media’s films. Because Malibu Media does not allege any additional facts beyond Doe’s subscriber status to show that he engaged in the unlawful downloading of Malibu Media films, I conclude that Malibu Media has not alleged plausible grounds for relief and will deny Malibu Media’s motion for default judgment without prejudice.

Again, many judges will just grant a default judgment as a matter of course, and wouldn't even consider whether or not there was a plausible claim in the complaint unless there was a motion to dismiss from the defense.

But, it certainly appears that more and more judges are wising up to copyright trolling tactics. Here, the court makes clear that it has the power to deny a default judgment in a case like this.

A court should not grant a motion for default judgment simply because a plaintiff alleges in a conclusory fashion that a defendant has violated the law. Instead, the factual allegations in support of default judgment must establish plausible grounds for relief. Thus, a court must evaluate whether the factual allegations set forth as a basis for the default judgment motion would survive a challenge by way of a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

And here, the judge appears to really understand that just having an IP address is not the same as knowing who did any infringement:

On the one hand, some courts conclude that, if there has been a copyright infringement traced to a particular IP address, it is plausible to conclude that the subscriber to the ISP account that corresponds to this IP address is the one who engaged in the acts of copyright infringement....

On the other hand, a growing weight of authority runs to the contrary, with courts concluding that a defendant’s status as subscriber of the ISP account associated with the IP address used to infringe a copyright, standing alone, merely makes it possible—rather than plausible—that it was the defendant who engaged in the acts of unlawful infringement....

What's notable here is how many of the cases the judge cites for both of those arguments are... Malibu Media cases. The judge has done the research it appears:

The Second Circuit has yet to address the issue, but the Ninth Circuit has persuasively explained why a plaintiff like Malibu Media does not state plausible grounds for relief by alleging only that a defendant is the registered owner of the internet subscriber account assigned to the IP address associated with the infringement activity. See Cobbler Nevada LLC v. Gonzalez, 901 F.3d 1142 (9th Cir. 2018). “Although copyright owners can often trace infringement of copyrighted material to an IP address, it is not always easy to pinpoint the particular individual or device engaged in the infringement.” Id. at 1146. “[S]imply establishing an account [that is associated with an IP address] does not mean the subscriber is even accessing the internet, and multiple devices can access the internet under the same IP address.”

The court isn't throwing out the case entirely, giving Malibu Media another chance to make their case, but also won't just rubber stamp a default:

To be sure, I understand that “the technology limitations potentially puts a plaintiff [like Malibu Media] in a difficult position in naming the correct defendant,” but “such limitations do not relieve a plaintiff of alleging sufficient facts so that a court can reasonably infer that the named defendant is the actual infringer.” Malibu Media v. Park, 2019 WL 2960146, at *6. Without additional allegations, “[i]t thus remains just as possible that the IP address was used by family members, roommates, guests, friends, and neighbors.” Malibu Media v. Duncan, 2020 WL 567105, at *6. Accordingly, I will deny the motion for default judgment without prejudice to renewal on the basis of additional allegations to plausibly show that it was Doe who engaged in the alleged infringing activity.

It's good to see more and more courts understanding the games copyright trolls play and not letting them get away with them.

As we've noted a few times, the Trump administration's repeal of net neutrality did a lot more than just kill net neutrality rules. It effectively neutered the FCC's ability to hold giant broadband providers accountable for much of anything, from attempting to charge customers a rental fee for hardware they own, to the litany of bogus fees ISPs use to falsely inflate their advertised rates. So when a select group of folks try to claim that "killing net neutrality must not have mattered because the internet still works," they're advertising their ignorance.

Another problematic aspect of the FCC's net neutrality repeal was that it also attempted to ban states from protecting consumers. The goal of the telecom sector, if you haven't noticed, is a complete and total oversight vacuum of one of the least competitive, and most disliked, business sectors in America. And it's fairly shocking how far along they've gotten in their quest without more people generally pointing out it's kind of a bad idea to let the Comcasts and AT&Ts of the world run amok sans regulator oversight or meaningful competition.

Unfortunately for the telecom sector, its quest to block states from filling the consumer protection void hasn't gone that well. The courts so far have generally ruled that the FCC can't abdicate its authority over consumer protection, then turn around and try to dictate what states can or can't do. That's not stopping the Trump administration or telecom giants, which have continued their lawsuits against states like California on a state by state basis. Last week, the DOJ and ISPs filed amended complaints in California in a bid to scuttle that state's net neutrality rules:

"California will likely point to other portions of the DC Circuit order, which found that the FCC's power to preempt is limited because the commission abandoned its Title II regulatory authority over broadband. "[I]n any area where the Commission lacks the authority to regulate, it equally lacks the power to preempt state law," judges wrote in that case. The FCC's "affirmative" sources of regulatory authority come from Title II, III, and VI of the Communications Act, judges wrote. But Pai's FCC chose to apply Title I to broadband, which contains no such authority."

ISPs (and the various policy wonks under their employ) like to whine that states pursuing their own consumer protections (be they privacy, net neutrality, or anything else) creates a "fractured landscape of discordant state laws." But that ignores the fact that this is a problem created by the telecom sector. It in effect wants to have its cake and eat it too, all the while ignoring the broad consensus of the public and experts that the agency's previous net neutrality rules were little more than a modest effort to keep telecom monopolies from abusing their monopoly power in the streaming video era.

Some FCC Commissioners, like Jessica Rosenworcel, weren't particularly impressed:

There remains a delusion among a certain subset of tech and telecom policy folks who believe that if you neuter regulatory oversight of an uncompetitive sector like broadband, magic and ponies somehow sprout from the sidewalk. But as U.S. telecom history has made pretty clear by now, when a company like AT&T or Comcast sees neither competition nor meaningful regulatory oversight, they simply double down on the same bad behavior. That means higher prices, worse customer service, patchy availability, and bad privacy and net neutrality practices (you know, like AT&T only excluding its own video services from usage caps).

In Comcast and AT&T's ideal world, nobody, anywhere would be able to do a damn thing as they protect their geographic monopolies from competition and accountability. And shockingly, there's still a small subset of folks (including the Trump administration) who seem to think that's a good idea.

In a little over 15 years, DHS agencies interacted with millions of travelers passing through our nation's airports… and relieved them of over $2 billion in cash. (And that's just agencies like the CBP and ICE. The DEA also lifts cash from airline passengers -- something it loves doing so much it hires TSA agents to look for money, rather than stuff that could threaten transportation security.)

That's just one of several disturbing findings in the Institute for Justice's (IJ) new report [PDF] on the DHS's ability to separate travelers from their money. Utilizing the Treasury Department's forfeiture database, the IJ discovered the DHS is a fan of taking cash and does so more frequently at certain airports. The most popular airport for cash seizures is, by far, Chicago's O'Hare. In 2014, the airport accounted for 34% of all cash seized despite handling only 6% of all air travelers.

More travelers means more opportunities, which explains some of the increase in seizures over the past decade. But as the IJ points out, seizures are outpacing the bump in travel stats.

Between 2000 and 2016, the number of air travelers increased 46%, while the inflation-adjusted value of currency seized at airports by DHS agencies increased 140% and the number of airport currency seizure cases grew 178%.

Any international airport will be patrolled by CBP and ICE agents looking for cash to seize. And they're not looking to catch drug dealers, human traffickers, or any other criminals that might be carrying cash around. No, the most common criminal activity to result in forfeitures is nothing more than a reporting violation.

Federal law requires travelers to declare any currency over $10,000 when traveling into or out of the country. It's pretty easy to get this done when traveling into the US, as arriving visitors will be required to go through Customs and declare anything they're bringing into the country, including cash. Outbound travelers may not realize this applies to them and since they're not required to pass through Customs on the way out, they may have no idea they're violating the law. That's an opportunity DHS agencies are more than happy to capitalize on. Half of all seizures between 2000-2016 were for violating this reporting requirement.

In fact, serious criminal activity is something no one seizing money seems very concerned about. Asset forfeiture isn't about dismantling criminal empires. It's about taking cash from people who have limited means to fight back. If the government has all your cash, it's pretty tough to hire a lawyer and fight an uphill battle against a system that dispenses with the property's former owner completely to engage in litigation against the cash itself.

Overall, 69% of DHS agency airport currency seizure cases were not accompanied by an arrest, regardless of the alleged offense. This means less than a third of the time was an offense egregious enough, or the evidence strong enough, to warrant an arrest.

This isn't just a DHS thing. It's an everybody thing.

In 2017, the DOJ’s Office of the Inspector General conducted an in-depth study of a sample of 100 Drug Enforcement Administration forfeiture cases. The study found that only 44 of those cases advanced or were even related to a criminal investigation. That same year, the Treasury Inspector General for Tax Administration reviewed a sample of 278 cases in which currency was seized under “structuring” laws, which prohibit conducting bank transactions below $10,000 to evade federal reporting requirements. The law is in place to prevent crimes like money laundering, but the study found that in 91% of cases, the seized funds were from a legal source, such as a family-owned business. The study also found that IRS agents were encouraged to conduct “quick hits,” where property was easier to seize, “rather than pursue cases with other criminal activity (such as drug trafficking or money laundering), which are more time-consuming.”

Taking money from people has always been easier than fighting crime. That much has been obvious for years. The IRS said the quiet part loud on accident. This report says everything the government isn't willing to admit to the public, much less itself: the point of forfeiture programs is to enrich those performing the forfeitures. That's it. That's the entire thing. Any reductions in criminal activity are purely coincidental.