We still haven't seen an end to the fallout resulting from a botched (and bogus) drug raid in Houston that ended with two residents killed by police officers. It also ended with five officers wounded -- one of them paralyzed. The raid was predicated on false statements made by Officer Gerald Goines, who secured permission from a judge to perform a no-knock raid, claiming the residents were armed and selling heroin.

While guns were recovered, no heroin was. Indeed, no evidence of drug dealing was recovered -- just personal amounts of marijuana and cocaine. The informant that supposedly made the heroin buy never existed and the supposed result of this controlled buy was actually heroin pulled from an officer's squad car. All of Goines' lies led to two deaths and five injured officers. Goines is currently facing a slew of charges, including two counts of felony murder.

Other participants in the raid are facing charges as well. KHOU reports six more Houston PD officers have been indicted for their involvement in the raid or for other criminal acts they engaged in while working in the department's narcotics unit.

On Monday, a Harris County grand jury indicted another officer for murder and five others for engaging in criminal activity.

The six officers indicted Monday are in addition to the six officers who have already been indicted.

Felix Gallegos, the officer charged with murder, fired the shot that killed Dennis Tuttle, according to court documents.

That's 12 officers, all under indictment, and all involved in the drug raid. Following the ill-fated raid, the Houston PD investigated its own narcotics unit, "discovering" that it had been given free rein for years. Paperwork routinely went unreviewed and unapproved. And that's when there was any case-related paperwork to be found. In some cases, no warrants were filed. In others, supporting documents were missing. Multiple discrepancies in evidence and expense reporting were also uncovered. This hands-off approach is directly responsible for the travesty the Houston PD calls a "narcotics unit."

And it's this hands-off approach that's led to the charges facing five of these recently indicted officers -- all accused of falsifying records to obtain pay for overtime hours they apparently didn't work. Some of this has been going on for a long time, which means the resulting sentences will be longer, too. Three officers are facing hefty felony charges for this time theft, ones that carry with them a maximum sentence of life in prison:

Oscar Pardo – (HPD) Engaging in Organized Criminal Activity, to wit: Aggregate Theft by a Public Servant ($30,000 or more but less than $150,000) and Tampering with a Governmental Record (1st degree)

Cedell Lovings – (Status Unclear) Engaging in Organized Criminal Activity, to wit: Aggregate Theft by a Public Servant ($30,000 or more but less than $150,000) and Tampering with a Governmental Record (1st degree)

Nadeem Ashraf – (HPD) Engaging in Organized Criminal Activity, to wit: Aggregate Theft by a Public Servant ($30,000 or more but less than $150,000) and Tampering with a Governmental Record (1st degree)

Two more officers -- Clemente Reyna and Thomas Wood -- have had identical theft charges added to the charges they're already facing for their participation in the drug raid.

And another two officers are facing lesser theft charges, but ones that still carry potential 20-year sentences. Five of these officers retired as soon as it became clear they might face criminal charges. The other seven are apparently still employed, though that will likely change now that they're under indictment.

There was a lot of trust to go around in the Houston Police Department. Not a lot of verification, though. It took the senseless killing of two harmless Houston residents to force the PD to take a look at what its officers were doing. And it's probably going to take several criminal trials to force the PD to actually care about officer accountability so it doesn't get to the point of felony murder charges and hundreds of thousands of dollars of illegally obtained paychecks before the PD can be bothered to police its own.

This isn't the final postscript on this horrific incident. There will certainly be more to come, what with a dozen officers facing the possibility of a trial and the PD forced to provide what will certainly be damning information in response to discovery requests.

A few days ago, a friend asked if I'd ever heard of the "Digital Creators Coalition," an apparently new group that claimed to be representing independent artists. I was unfamiliar with it, and its website provided basically no information about who was actually behind it, beyond this vague statement on its "who we are" page:

The Digital Creators Coalition (DCC) is a group of associations, companies and organizations that represent individual creators, independent producers, small-and-medium-size enterprises (SMEs), large businesses, and labor organizations from the American creative communities. We contribute significantly to U.S. GDP, exports and employment – collectively employing or representing millions of American creators, and contributing billions of dollars to the U.S. economy.

Right... but... uh... who? There's no named staff. There's nothing that shows who these associations, companies, and organizations actually are. Though, if you click through on the website to their "comments" page, it takes you to two separate letters that were sent nearly a year ago to negotiators trying to sort out a US-UK trade agreement, asking for the most extreme versions of copyright possible, including copyright term extension, secondary liability on websites that host content, no language on "balance" or "fair use" (yes, they explicitly say neither term should be mentioned). It's insanity.

Of course, that letter also reveals who they are, and it's a who's who of industry associations that lobby for the interests of the largest gatekeepers, and not, as the organization's website suggests, small and independent creators:

I mean, you've got basically all the copyright maximalist extremist groups there: the RIAA, the MPA, the Author's Guild, Creative Future, the Recording Academy, ASCAP, SoundExchange, NMPA, the IIPA. Not surprisingly, but incredibly disappointing is that the News Media Alliance is there. The News Media Alliance used to be the Newspaper Association of America, and, as such, you'd think would be supportive of free speech and the 1st Amendment. Considering how much newspapers rely on fair use, you'd think it would be odd that they're now against fair use. But, over the past few years, the leaders of the News Media Alliance have become so obsessed and infatuated with "GOOGLE BAD!" that apparently they have no problem throwing their lot in with copyright maximalists against their own members' interests. The organization literally came out against fair use a few years ago, and has since become just as bad (in some ways worse!) than some of the other organizations here.

But, just as if to prove that this group has nothing to do with small and independent creators, and is just a front for the big gatekeepers who screw over small and independent creators, the RIAA itself put out a press release announcing this group's official launch. Oh, and in case there was any doubt who is really behind this group, a simple whois lookup on who registered the website reveals all:

Yup. This organization set up to supposedly support small and independent artists... was literally set up by the RIAA itself.

This would be the same RIAA whose chairman and CEO's key claim to fame is that while he was a Congressional staffer, he snuck four words into an unrelated bill that literally would take the copyrights from artists and give them to record labels. No one realized he had done this until after it was passed and became law, at which point, the RIAA immediately hired him, and where he's moved up the ranks until he was in charge. This move set off a huge fight with tons of artists screaming about how the RIAA had actually "stolen" their copyrights out from under them, and Congress had to go in and fix this.

That's who's protecting the interests of small and independent creators? Don't make me laugh.

This is also the same RIAA made up of the major labels who have a long and detailed history of screwing over some of its biggest artists through creative accounting (the only thing the RIAA really does that is creative) to make sure it never needs to pay artists and to keep them tied to the system. These are not the friends of independent artists.

Notice who is not a part of this coalition? Any of the companies who have made it possible for actual small and independent artists to make, distribute, promote, build an audience, and make a living these days. No Apple. No YouTube. No TikTok. No Kickstarter. No Patreon. No Spotify. No Bandcamp. No Substack. Odd, isn't it? Then again, maybe not.

But seeing as this group is now officially "launched" you can expect to see a bunch of bullshit quotes from them that gullible reporters will repeat without question, saying that it's a group to support artists. Don't believe them. This is an organization to support the copyright maximalism of groups that have spent decades screwing over independent artists.

During the runup to the presidential election, through the election, past the election, past the Electoral College vote, past the states' certification of votes, multiple recounts and investigations, all the way up until VP Mike Pence was due to certify the vote, Donald Trump and his squad of sycophants claimed -- without evidence -- the election was fraudulent.

These claims -- buttressed by public statements, heated tweets, and multiple baseless lawsuits -- lit a fuse that triggered a January 6th explosion when Trump supporters stormed the Capitol building in a futile attempt to overturn the results of the presidential election.

Roughly a week after the insurrection, Dominion Voting Systems -- accused of being a tool of the corrupt Venezuelan government -- sued one of the more batshit extensions of Trump's legal army, Sidney Powell. The defamation suit accused Powell of lying about pretty much everything related to Dominion.

Unfortunately for Dominion, it is a public figure so it's going to have to prove deliberately false statements were made by people who knew the claims were false when they made them. Powell might be able to walk away from this suit, despite all of her false statements. Some were made in court which makes those claims immune from lawsuits. But others were made in public and those might end up costing her some money. Truth is the absolute defense to immunity but being a living, breathing caricature who embraces every galaxy brain conspiracy theory that floats by in the internet flotsam is also a defense. And that defense is "no one takes me seriously so it's unlikely any reasonable people took my wild-ass lying claims about Dominion seriously either." If Alex Jones can use it, so can Sidney Powell.

Dominion's next target is Rudy Giuliani, someone who echoed a bunch of Powell's wild claims and continued to do so as the Trump campaign (and other pro-Trumpers) lost lawsuit after lawsuit attempting to overturn election results.

Giuliani's escapades as Trump's legal rep have made it possible for him to make the same claim in his defense: that he's so devoid of credibility no reasonable person would take his claims seriously. But Dominion's lawsuit [PDF] makes a good case for a finding of actual malice by pointing out certain actions taken (or not taken) by Giuliani that strongly suggest he knew his public anti-Dominion statements were false.

The opening paragraph spells it out succinctly:

During a court hearing contesting the results of the 2020 election in Pennsylvania, Rudy Giuliani admitted that the Trump Campaign "doesn't plead fraud" and that "this is not a fraud case." Although he was unwilling to make false election fraud claims about Dominion and its voting machines in a court of law because he knew those allegations were false, he and his allies manufactured and disseminated the "Big Lie," which foreseeably went viral and deceived millions of people into believing that Dominion has stolen their votes and fixed the election.

The lawsuit runs 107 pages, but that's the crux of it. Giuliani made a lot of false public statements about Dominion, but he refused to make those claims in court. When lawsuits were filed, Giuliani wasn't about to turn his press conference ravings into sworn statements. That's a pretty solid indicator Giuliani had his doubts about some of the things he was saying publicly about Dominion. But it didn't stop him from saying these things publicly. It didn't stop him from making an alleged $20,000/day as Trump's legal rep. And it didn't stop him from shilling products on his podcasts and YouTube videos, where he repeated his false claims.

And there's a strong argument for damages. Almost anything Trump, Giuliani, and other pro-Trump litigators said about stolen elections and Dominion's involvement went viral. Dominion's reputation has certainly been harmed. There's a whole subset of Americans out there who fervently believe Dominion voting machines run on software developed by a company allegedly run by deceased dictator Hugo Chavez -- software apparently created solely for the purpose of stealing votes and elections. No part of this allegation is true and Dominion uses no software created by this company. But thousands -- if not millions -- of people still believe this, even though no evidence has surfaced to back these claims.

And, despite this lack of evidence, Giuliani has refused to retract any of his false claims. If Dominion can surmount the "actual malice" bar in this case, the former New York mayor (and current MAGA madman) could be out of a whole lot of his $20k/day money. Dominion is asking for $1.3 billion in damages. It will certainly not be awarded this amount even if it wins, but the damages will still be sizable and it may be able to recover its legal fees on top of it.

This isn't a slam dunk case but it's still going to be very difficult for Giuliani to get this one dismissed. A man who beclowned himself for Trump and his base is going to have a hard time talking himself out of this one.

Another day, another completely ridiculous, wrong, and painful op-ed in a major newspaper that gets all of the details about Section 230 wrong. And this one is particularly ridiculous because it's coming from a law professor. Professor Philip Hamburger wrote an op-ed for the WSJ that is so bad, so wrong, so clueless, that if I handed it in in one of his classes, I'd deserve a failing grade. The only thing that this piece gets is that, while I'd thought I'd seen every style of bad Section 230 takes, this one is creatively bad in new and more ridiculous ways than I'd seen before. It's titled: The Constitution Can Crack Section 230, which already seems like a weird way to kick off. Cracks... what?

Section numbers of federal statutes rarely stir the soul, but one of them, 230, stirs up much fear, for it has seemed to justify censorship. Relying on it, tech companies including Google and Twitter increasingly pull the plug on disfavored posts, websites and even people. Online moderation can be valuable, but this censorship is different. It harms Americans’ livelihoods, muzzles them in the increasingly electronic public square, distorts political and cultural conversations, influences elections, and limits our freedom to sort out the truth for ourselves.

So, first of all, how is this moderation (the bad kind) different from that moderation (the good kind that you say is valuable)? Hamburger makes no effort, and seems to think that, like obscenity, he knows it when he sees it. But, even if we go by what little information he provides here, you might already notice the problem. He claims that this moderation "distorts political and cultural conversations" and "influences elections" but... that's also the exact same argument that people who are mad about too little moderation make.

And, of course, you could easily say that Fox News. Or CNN. Or... the Wall Street Journal has been known to "distort political and cultural conversations" and "influence elections." But I don't see Prof. Hamburger flipping out about that.

But does the 1996 Communications Decency Act really justify Big Tech censorship? The key language, Section 230(c)(2), provides: “No provider or user of an interactive computer service shall be held liable on account of . . . any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” The companies take this as a license to censor with impunity.

That understanding is questionable. Law is rarely as clear-cut as a binary switch. To be sure, courts emphasize the breadth of Section 230’s immunity for website operators. But there is little if any federal appellate precedent upholding censorship by the big tech companies. The question therefore comes down to the statute itself. The answers should give pause to the companies and courage to those they’ve censored.

If I were grading this as a paper, I would circle this line in red ink: "But there is little if any federal appellate precedent upholding censorship by the big tech companies." Professor, just because you failed to some fairly basic research, doesn't mean it doesn't exist. There are dozens of cases regarding content removal out there, and every one of them has been tossed out frequently on Section 230 grounds. While not many of them actually go up on appeal, the ones that have, have also been rejected. And here's the thing, many of them have been rejected on 1st Amendment grounds, meaning that Section 230 isn't even the issue here.

There was the PragerU case that made it clear that YouTube can restrict videos however it sees fit on 1st Amendment grounds, not even getting to the 230 issue:

PragerU’s claim that YouTube censored PragerU’s speech faces a formidable threshold hurdle: YouTube is a private entity. The Free Speech Clause of the First Amendment prohibits the government—not a private party—from abridging speech. See Halleck, 139 S.Ct. at 1928 (the Free Speech Clause “prohibits only governmental abridgment of speech,” and “does not prohibit private abridgment of speech”); Hudgens v. NLRB, 424 U.S. 507, 513 (1976) (“the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state”). PragerU does not dispute that YouTube is a private entity that operates its platform without any state involvement.

These are not antiquated principles that have lost their vitality in the digital age. In Halleck the Supreme Court considered whether a private entity that operates a public access channel on a cable system is a state actor. 139 S. Ct. at 1926. The plaintiffs tested a theory that resembled PragerU’s approach, claiming that a private entity becomes a state actor through its “operation” of the private property as “a public forum for speech.” Id. at 1930. The Court rejected this argument. Such a rule would eviscerate the state action doctrine’s distinction between government and private entities because “all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints.” Id. at 1930–31. Instead, the Court reaffirmed that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Id. at 1930.

Importantly, private property does not “lose its private character merely because the public is generally invited to use it for designated purposes.” Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). YouTube may be a paradigmatic public square on the Internet, but it is “not transformed” into a state actor solely by “provid[ing] a forum for speech.” Halleck, 129 S. Ct. at 1930, 1934.

Seems kind of important, but Prof. Hamburger has some fantasyland ideas about how the Commerce Clause means... that Section 230 cannot be used to take down content. It... makes no sense.

Originally, the Constitution’s broadest protection for free expression lay in Congress’s limited power. James Wilson reassured Americans in 1787—four years before the First Amendment’s ratification—that “a power similar to that which has been granted for the regulation of commerce” was not “granted to regulate literary publications,” and thus “the proposed system possesses no influence whatever upon the press.”

The expansion of the commerce power to include regulation of speech is therefore worrisome. This is not to dispute whether communication and information are “commerce,” but rather to recognize the constitutional reality of lost freedom. The expansion of the commerce power endangers Americans’ liberty to speak and publish.

This is embarrassing. Nothing in Section 230 is "regulating commerce." Nor is it "regulating speech." It's doing the opposite. It's making sure that companies know that they and not the government get to decide what speech they host and associate with. And, no, nothing in 230 "endangers Americans' liberty to speak and publish." They can still express themselves, but they don't have a right to demand that any private company host or promote that speech. Just like I can't demand that the Wall Street Journal publish my op-ed about how Columbia Law students deserve a refund if they had to take classes from Prof. Hamburger. That's not censorship. That's the Wall Street Journal's 1st Amendment editorial rights to reject my editorial (frankly, mine would have been better than Hamburger's, so maybe they should have published mine instead).

That doesn’t necessarily mean Section 230 is unconstitutional. But when a statute regulating speech rests on the power to regulate commerce, there are constitutional dangers, and ambiguities in the statute should be read narrowly.

IT DOESN'T REGULATE SPEECH. How hard is that to understand?

A second constitutional question arises from the First Amendment. The companies brush this aside because they are private and the amendment prohibits only government censorship. Yet one must worry that the government has privatized censorship. If that sounds too dramatic, read Section 230(c)(2) again. It protects tech companies from liability for restricting various material “whether or not such material is constitutionally protected.” Congress makes explicit that it is immunizing companies from liability for speech restrictions that would be unconstitutional if lawmakers themselves imposed them.

This is an embarrassingly amateurish reading of Section 230. It's the type of analysis we normally see on Twitter from people who have just discovered the law and know nothing about how it actually works or what it actually says. In court, content takedowns have almost never relied on (c)(2). They rely on the 1st Amendment or (c)(1). Section (c)(2) is only used in very rare cases and the reason it says "whether or not such material is constitutionally protected" is not because of some sort of state action attempt to censor constitutionally protected speech, but because the law is properly recognizing that companies are not bound by the 1st Amendment and therefore, the companies, being private entities, are not bound by the 1st Amendment and get to decide for themselves which content to associate with.

Any lawyer who actually spent any amount of time understanding Section 230 would know this. I'd expect that a law professor publishing in the Wall Street Journal could take the time to figure it out himself.

Seventeenth-century censorship, which the First Amendment clearly prohibited, was also imposed largely through private entities, such as universities and the Stationers’ Company, England’s printers trade guild. Whereas privatized censorship then was often mandatory, the contemporary version is voluntary. But the tech companies are protected for restricting Congress’s list of disfavored materials, and this means that the government still sets the censorship agenda.

No. It's not. If the law required them to take down certain content -- or even if it limited what the sites could take down -- that would be setting the censorship agenda. But here, the whole point of 230 is to make it clear that websites, as private entities, have the freedom to decide for themselves.

Some of the material that can be restricted under Section 230 is clearly protected speech. Consider its enumeration of “objectionable” material. The vagueness of this term would be enough to make the restriction unconstitutional if Congress directly imposed it. That doesn’t mean the companies are violating the First Amendment, but it does suggest that the government, in working through private companies, is abridging the freedom of speech.

Again, this is misreading and misunderstanding 230. It's focusing on (c)(2) which is the part of the law that is almost never used. (c)(1) and the 1st Amendment have been more than enough to protect against liability for content moderation decisions. More importantly, the list in (c)(2) is not a definitive list. It is not ordering the companies to do anything. It's just making it clear that they have the freedom to moderate however they see fit. That is not, as Hamburger seems to imply, the government "abridging freedom of speech" because no one's free speech is "abridged."

And then... he finally realizes that the 1st Amendment protects the "good" kind of moderation he wants, and tries to twist things around to explain why it doesn't protect the kind of moderation he dislikes.

This constitutional concern doesn’t extend to ordinary websites that moderate commentary and comments; such controls are their right not only under Section 230 but also probably under the First Amendment. Instead, the danger lies in the statutory protection for massive companies that are akin to common carriers and that function as public forums. The First Amendment protects Americans even in privately owned public forums, such as company towns, and the law ordinarily obliges common carriers to serve all customers on terms that are fair, reasonable and nondiscriminatory. Here, however, it is the reverse. Being unable to impose the full breadth of Section 230’s censorship, Congress protects the companies so they can do it.

But... they're not common carriers. They're not public forums. And, as was cited in the PragerU ruling above, which in turn cites the Supreme Court in 2019 in a ruling made by Brett Kavanaugh, social media websites do not even come close to meeting the criteria to be declared public forums. You'd think a law professor would be up on little things like that.

Some Southern sheriffs, long ago, used to assure Klansmen that they would face no repercussions for suppressing the speech of civil-rights marchers. Under the Constitution, government cannot immunize powerful private parties in the hope that they will voluntarily carry out unconstitutional policy.

If you think this is an apt analogy, you are not qualified to discuss this seriously. This is, in no way, analogous. I mean, holy shit, is this a messed up line of thinking. To compare social media companies applying their terms of service in a way to stop the spread of disinformation to... southern sheriffs urging the Klan to attack civil rights marchers? WHO WOULD EVER THINK THAT'S ANALOGOUS?

Perhaps judges can avoid the constitutional problem, but this will be more difficult if they read Section 230(c)(2) broadly. The tech companies can’t have it both ways. If the statute is constitutional, it can’t be as broad as they claim, and if it is that broad, it can’t be constitutional.

What? Again, (c)(2) barely even matters. (c)(1) and the 1st Amendment matter. And it is both constitutional and as broad as they claim. The problem you have, Professor, is that you've read into the law things that are not there.

And then, believe it or not, the op-ed shifts from just wrong, to crazy.

The statute itself also poses problems for Big Tech. The first question is what Section 230(c) means when it protects tech companies from being “held liable” for restricting various sorts of speech. This is widely assumed to mean they can’t be sued. But the word “liable” has two meanings.

What is this, I don't even...

In a civil suit, a court must first consider whether the defendant has violated a legal duty or someone else’s right and is therefore legally responsible. If the answer is yes, the court must decide on a remedy, which can include damages, injunctive relief and so forth. The term “held liable” as used in Section 230(c) can fall into either category. Thus, the protection of tech companies from being “held liable” may merely mean they can’t be made to pay damages, not that they can’t be held responsible and subjected to other remedies. The former interpretation seems more plausible, if only because a mere ambiguity seems a weak basis for barring a vast class of plaintiffs from recourse to the courts on a matter as central as their speech.

After protecting tech companies from being held liable, the statute recites: “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” This clause, Section 230(e), may seem to vindicate the companies, but it distinguishes between a “cause of action” and “liability” and thereby clarifies the ambiguity. Evidently, when Section 230(c) protects tech companies from being held liable, it does not generally immunize them from causes of action. It merely protects them from “liability” in the sense of damages.

There are jokes about law professors who think up crazy wacky ideas with no basis in the reality. Those jokes are meant to be about paragraphs like the two above. Held liable means any liability. You can't just say that other remedies don't count as being held liable. That's not how any of this works. And courts have ruled on this very thing, in cases like Hassell v. Bird, where no one was trying to force Yelp into monetary damages, but was about an injunction that would have forced Yelp into removing some content -- and the court held that 230 barred such an injunction. Prof. Hamburger seems to have made up, whole cloth, the idea that "held liable" might only apply to monetary damages.

Honestly, those two paragraphs read like typical Sovereign Citizen rantings, in which they've found a loophole regarding whether or not a flag has a fringe. The arguments presented here are completely disconnected from the way any court has ever looked at these issues.

Another question concerns the “material” that the companies can restrict without fear of being sued for damages. Section 230(c) protects them for “any action voluntarily taken in good faith to restrict access to or availability of material” of various sorts. Even before getting to the enumerated categories of material, it is important to recognize that the statute refers only to “material.” It says nothing about restricting persons or websites.

To be sure, the statute protects the companies for “any action” restricting the relevant material, and if taken literally “any action” could include various nuclear options, such as barring persons and demonetizing or shutting down websites. But the term “any action” can’t be taken to include actions that restrict not only the pertinent material but also other things. ”Any action” has to be focused on such material.

Dude. Come on. Is this a joke?

The statute, moreover, requires that such action be taken “in good faith.” At common law, that can mean not acting with the effect of destroying or injuring the rights of others and, more specifically, not acting disproportionately to terminate relations. The statute thus doesn’t protect the companies when they take disproportionate action against material, let alone when they unnecessarily restrict other things, such as websites and persons.

Again, the good faith part only matters for (c)(2) which doesn't matter. (c)(1) and the 1st Amendment have been deemed to protect content moderation takedowns. Many times. Don't you have law school student helpers who can look this stuff up for you?

What is in good faith for a website may be different from what is in good faith for a tech company that operates like a common carrier or public forum. But at least for such tech companies, the statute’s focus on “material”—combined with the requirement of “good faith”—stands in the way of any categorical protection for suppressing websites, let alone demonetizing them or barring persons.

What does this mean in practice? Even if a company technically can’t bar some material without taking down the entire website, it at least must give the operators an opportunity to remove the objectionable material before suppressing the website altogether. As for demonetizing sites or barring persons, such actions will rarely if ever be necessary for restricting material.

Again, the "good faith" part is meaningless. It's in (c)(2). Almost no one uses (c)(2) but even if they somehow did rely on it, this interpretation that good faith requires giving a user another chance has no basis in reality. It also has no basis in how content moderation works. It is disconnected from reality.

Such is the statute’s text. If you nonetheless want large common-carrier-like companies to go beyond “good faith” actions against “material,” pause to consider a little history, if only as a reality check about the proportionality of your desires. Even the Inquisition gave heretics formal opportunities to recant. And even the Star Chamber required its private censors to bar offensive material, not authors.

Again... what? You're quoting the wrong part of the statute, misunderstanding what it says, ignoring the key parts of the 1st Amendment's role here, saying that they're common carriers when they're not, misstating what the word "material" means in context... and then talking about Star Chambers?

They let you teach? Like... actual students? Ones hoping to become lawyers? Those poor, poor students.

The next question is viewpoint discrimination. Section 230(c) specifies protection for restricting “material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” The companies understand this to include nearly anything to which they object.

But Section 230(c) enumerates only categories of content, not viewpoints. The distinction between content and viewpoint is crucial in free-speech law: Government can’t discriminate against disfavored viewpoints even when regulating unprotected speech such as “fighting words.” It is therefore telling that the list focuses on content. One may protest that “otherwise objectionable” could include objectionable viewpoints. But it is obviously a catchall, and following a list of types of content, it would seem to refer only to additional objectionable content.

Yes. The government cannot discriminate. But these platforms are not "the government." Again, this has been covered. By the Supreme Court. Just recently.

The tech companies could argue that the catchall is still ambiguous. But at stake is viewpoint discrimination by vast companies that are akin to common carriers, whose operations function as public forums, and that are carrying out government speech policy. Are we really to believe that a mere ambiguity should be interpreted to mean something so extraordinary?

And, if my fairy godmother spun around on her toes three times quickly while sprinkling magic fairy dust in the air, maybe I could fly.

Section 230’s text offers the tech companies less shelter than they think. It protects them only from damage claims and not at all when they go beyond a constitutional reading of the statute.

Yes. If they relied on misreading (c)(2) and totally ignored (c)(1) as you did. But they don't. So I don't think they're afraid.

The implications are far-reaching. As litigation comes before the courts, they will have to decide the limits of Section 230 and the lawfulness of privatized censorship. In the meantime, some state legislatures will probably adopt civil-rights statutes protecting freedom of speech from the tech companies. Recognizing that such legislation isn’t barred by Section 230, lawmakers in several states are already contemplating it. One way or another, Section 230 does not, and will not, bar remedies for government privatization of censorship.

The implications are not far reaching. Litigation has already come before the courts. And those state laws that are being proposed, should they ever become law will be tossed out as unconstitutional under the 1st Amendment.

Columbia Law students, I feel sorry for you.

There have been some very vocal calls for encryption backdoors by the heads of certain law enforcement agencies. And those making the most noise imply every other law enforcement agency that isn't clamoring for worse security supports the clamoring loudmouths demanding mandated backdoors.

Maybe these other agencies do agree with "going dark" proselytizers like Chris Wray and Cy Vance. Maybe these agencies that never speak out are the silent majority. Then again, maybe they recognize the tradeoff for what it is and find other ways to obtain the evidence they need. But one thing is clear, cops are fans of encryption if it benefits them.

Admissions made in a lawsuit brought by a fired Michigan State Police inspector show police officials have been using an encrypted messaging app with a self-destruct feature to engage in official business.

Top officials at the Michigan State Police have been using text messaging encryption devices that can put their internal communications out of the reach of the Freedom of Information Act and legal discovery, according to admissions the MSP made in a civil lawsuit.

Among those who have downloaded the "end-to-end" encryption applications onto their state-issued phones are a lieutenant-colonel, two majors and two first lieutenants, according to court records obtained by the Free Press.

Former inspector Michael Hahn sued the Michigan State Police after he was allegedly fired in retaliation for his vocal opposition to "unlawful racial and gender hiring and promotion preference." Hahn's lawyer, James Fett, suspected something was amiss when his discovery request for text messages from officials involved in Hahn's firing returned hardly any messages. The meager output was at odds with the four-month investigation of Hahn involving numerous MSP officials that occurred prior to his dismissal.

After a motion to compel, the Michigan State Police admitted its officials were using an encrypted app with self-destructing messages that leaves no permanent record on officials' phones or MSP servers.

Fett asked the MSP to admit that Gasper, Hinkley, Lt. Col. Kyle Bowman, Maj. Emmitt McGowan, Maj. Beth Clark, 1st Lt. Brody Boucher, and 1st Lt. Jason Nemecek had each downloaded and used an instant messaging application with end-to-end encryption on their state-issued cellphones.

Assistant Attorney General Mark Donnelly, who is representing the state defendants in the lawsuit, admitted in an Oct. 29 response, obtained by the Free Press, that was true for each of the officials named. But in a corrected filing Thursday, Donnelly said use of the encryption app on state phones was not true for Gasper or Hinkley, though it was true for the others.

The app being used appears to be Signal, according to the fired MSP inspector bringing the lawsuit. Hahn noted that lots of MSP officials' names disappeared from the app after the Detroit Free Press began asking MSP officials to comment on the filing.

While encryption is a great way to protect sensitive communications from malicious hackers and criminals, it's not so great when it's being used to shield public servants from transparency and accountability. By all means, these communications should be encrypted. But they should also be archived and stored somewhere the MSP can retrieve them when sought by public records requesters or court orders. This storage should also be encrypted.

Encryption isn't the problem here. It's the sidestepping of obligations to the public -- something that, in this case, happens to involve encryption. And if this is going to get sorted out, it's probably going to take litigation and nosy journalists to get it done. Because it looks like the department in charge of defining the contours and limits of official communications isn't up to the task.

The Michigan Department of Technology Management and Budget can restrict or forbid use of messaging services that don't create permanent records of official communications. It hasn't. And its conflicting statement to the Detroit Free Press seems to imply it permits the use of self-destructing messages by state employees who are required to preserve their official communications.

Asked whether state employees are permitted to install end-to-end encryption applications on their state-issued phones, Caleb Buhs, a spokesman for DTMB, said that would be allowed only "if the application is for legitimate state business."

Which is fine, but…

Buhs was then asked to give examples of what the Whitmer administration would consider "legitimate state business" that would leave no record of official communications between state employees. He did not respond.

Well, that clears nothing up. Perhaps this will motivate the DTMB to come up with some coherent guidelines and retention mandates. Or perhaps the Department will just find a better spokesperson.

Whatever the end result of this lawsuit, the immediate payoff is confirmation public officials are violating laws and blowing off their obligations to the public. Perhaps some public good will come of this outing of willful destruction of public records, but given the number of times similar things have happened at all levels of government, it's difficult to greet this revelation with optimism, rather than cynicism.

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There's an idea that pops up every so often among people who are upset about misinformation online but don't actually understand the realities of online communities and the dynamics of how it all works: it's the idea that "anonymity" is the root cause of many of the internet's problems. We've spent years debunking this, though it's been nearly a decade since there was a previous focus on this issue -- and it's now coming back.

Unfortunately, part of the reason it's coming back is because a friend of Techdirt, Andy Kessler (who we've even published on Techdirt), wrote a piece for the Wall Street Journal calling for the end of anonymity online. I will note, that a large part of the article is correct: the part that accurately notes that Section 230 is not the problem and reforming or repealing it will do a lot more harm than good. That is exactly right.

But then Andy goes off the rails and decides that getting rid of anonymity is the real solution.

He's wrong, and we'll get into why in a moment. But, tragically, his piece has picked up some supporters in high places. Senator Ron Johnson, one of the key enablers of spreading disinformation in Congress (under his own name, of course), tweeted a link to the article, saying that perhaps we should end anonymity online:

That says:

I'm concerned that Congress’s involvement in Section 230 reform may lead to more harm than good.

One solution may be to end user anonymity on social media platforms. Social media companies need to know who their customers are so bad actors can be held accountable.

The next day, Senator John Kennedy, another famed Senatorial spreader of disinformation under his own name, announced that he was going to introduce legislation to ban anonymity online. Specifically, he said social media companies would have to verify the legal identities of every user, and said that this would "cause a lot of people" to "think about their words."

There are three big problems with this idea:

1. It's unconstitutional.
2. It doesn't work.
3. It creates real harms & puts marginalized and vulnerable people at risk.

Beyond those three things, it's a lovely idea. Did I say lovely? I meant short-sighted and half-baked.

Let's go through it bit by bit.

It's unconstitutional.

Basically, throughout the 20th century, there were a series of cases that reached the Supreme Court on the question of anonymity and whether or not the government could force the revealing of names. The most notable was McIntyre v. Ohio Elections Commission in 1995, where the Supreme Court was pretty explicit:

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority.... It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation--and their ideas from suppression--at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.

Some people might argue that "this is different" thanks to social media, but the details of the McIntyre case suggest that is very much in line with what is happening today. Some may argue that since we're often talking about speech trying to influence an election, it is different. Or what about to stop fraud? Or defamation? Literally all of that is covered in the McIntyre ruling:

The state interest in preventing fraud and libel stands on a different footing. We agree with Ohio's submission that this interest carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large. Ohio does not, however, rely solely on §3599.09(A) to protect that interest. Its Election Code includes detailed and specific prohibitions against making or disseminating false statements during political campaigns. Ohio Rev. Code Ann. §§3599.09.1(B), 3599.09.2(B) (1988). These regulations apply both to candidate elections and to issue driven ballot measures.... Thus, Ohio's prohibition of anonymous leaflets plainly is not its principal weapon against fraud.... Rather, it serves as an aid to enforcement of the specific prohibitions and as a deterrent to the making of false statements by unscrupulous prevaricators. Although these ancillary benefits are assuredly legitimate, we are not persuaded that they justify §3599.09(A)'s extremely broad prohibition.

As this case demonstrates, the prohibition encompasses documents that are not even arguably false or misleading. It applies not only to the activities of candidates and their organized supporters, but also to individuals acting independently and using only their own modest resources. It applies not only to elections of public officers, but also to ballot issues that present neither a substantial risk of libel nor any potential appearance of corrupt advantage. It applies not only to leaflets distributed on the eve of an election, when the opportunity for reply is limited, but also to those distributed months in advance. It applies no matter what the character or strength of the author's interest in anonymity. Moreover, as this case also demonstrates, the absence of the author's name on a document does not necessarily protect either that person or a distributor of a forbidden document from being held responsible for compliance with the election code. Nor has the State explained why it can more easily enforce the direct bans on disseminating false documents against anonymous authors and distributors than against wrongdoers who might use false names and addresses in an attempt to avoid detection. We recognize that a State's enforcement interest might justify a more limited identification requirement, but Ohio has shown scant cause for inhibiting the leafletting at issue here.

Basically all of that would apply to social media as well.

Kessler's WSJ piece suggests that this would be no different than Know Your Customer (KYC) requirements in the financial industry, but that is quite different. That is an explicit rule developed for determining fraud. It is easily distinguishable from what is being demanded here on two key points. First, social media involves tons of 1st Amendment protected speech, so any law attacking anonymity there would require strict scrutiny to make sure that it was narrowly targeted and the only effective way to meet a specific goal (which it is not). Separately, the goal of having a KYC setup for social media is not to stop fraud. As Kennedy himself said (revealing its unconstitutional purpose), it would be to make people "think about their words."

It doesn't work.

Proof? Facebook already requires real names.

I really shouldn't need much more than that, but just to humor you: back in 2016 we wrote about a huge study involving half a million comments online and found that trolls tended to be even worse when using their real names.

Results show that in the context of online firestorms, non-anonymous individuals are more aggressive compared to anonymous individuals. This effect is reinforced if selective incentives are present and if aggressors are intrinsically motivated.

This is not to say all people using their real names are overly aggressive. Or that all anonymous users are lovely. But the idea that anonymity is the problem is just... not supported by the facts.

And, just to point out something important: the storming of the Capitol was pushed for by a ton of people using their real names. They didn't do it thinking they were anonymous.

It creates real harms & puts marginalized and vulnerable people at risk.

Back in 2011 we had a post talking about the damage that can be done by requiring people to identify themselves on social media. It included a list from another site of reasons people gave for wanting to use pseudonyms, and you'll realize there are some really good ones. The original link is now gone, but I'll repeat them here:

• I am a high school teacher, privacy is of the utmost importance.
• I publish under my nom de plume, it's printed on my business cards, and all of the thousands of people I know through my social networks know me by my online name.
• I have used this name/account in a work context, my entire family know this name and my friends know this name. It enables me to participate online without being subject to harassment that at one point in time lead to my employer having to change their number so that calls could get through.
• I do not feel safe using my real name online as I have had people track me down from my online presence and had coworkers invade my private life.
• I've been stalked. I'm a rape survivor.
• I work for a private club. I have to carry a card around which states I will not share any element of the club with any sort of media. So, If I want to talk about work (and I do) on the net, I have to use an alias.
• I've been using this name for over 10 years in the "hacking" community. There are a nontrivial amount of people who know me *only* by that name.
• As a former victim of stalking that impacted my family I've used [my nickname] online for about 7 years.
• Under [this name] I am active in a number of areas of sexual difference for which it would not be wise for me to use my flesh legal name.
• My actual real name is utterly non-identifying, as 1) it is the name of a character in a movie, and that overwhelms google search results 2) it's not unique at ALL.
• [this name] is a pseudonym I use to protect myself. My web site can be rather controversial and it has been used against me once.
• I started using [this name] to have at least a little layer of anonymity between me and people who act inappropriately/criminally. I think the "real names" policy hurts women in particular.
• I use the pseudonym to maintain my online anonymity because I am polyamorous and have no desire for professional acquaintances to discover this.
• I enjoy being part of a global and open conversation, but I don't wish for my opinions to offend conservative and religious people I know or am related to. Also I don't want my husband's Govt career impacted by his opinionated wife, or for his staff to feel in any way uncomfortable because of my views.
• I have privacy concerns for being stalked in the past. I'm not going to change my name for [social media]. The price I might pay isn't worth it.
• We get death threats at the blog, so while I'm not all that concerned with, you know, sane people finding me. I just don't overly share information and use a pen name.
• This identity was used to protect my real identity as I am gay and my family live in a small village where if it were openly known that their son was gay they would have problems.
• I go by pseudonym for safety reasons. Being female, I am wary of internet harassment.

Such a list can go on and on. As Danah Boyd has written, requiring people give their real names is itself an abuse of power. And, just to back that up, note that the people now calling for it are the powerful.

The people who most heavily rely on pseudonyms in online spaces are those who are most marginalized by systems of power. “Real names” policies aren’t empowering; they’re an authoritarian assertion of power over vulnerable people.

Boyd notes that in collecting data on teen use of social media, she found that people of color were significantly more likely to use pseudonyms, while white teens were more likely to use their real names.

And, of course, none of this discusses what a total pain this would be for most sites. We've always allowed people to comment anonymously on Techdirt. If we were required to verify every commenter, we'd most likely shut down the comments -- which remain such a key part of the site here. It's also where we learn so much, often from anonymous or pseudonymous commenters. I have no idea the identity of nearly all of our best commenters, and I don't want or need to know.

So, please, can we dump this silly idea? Anonymity doesn't solve the problems you think it would, and it would put people at risk.

When Google Fiber launched back in 2010, it was heralded as a game changer for the broadband industry. Google Fiber, we were told, would revolutionize the industry by taking Silicon Valley money and disrupting the viciously uncompetitive and anti-competitive telecom sector. Initially things worked out well; cities tripped over themselves offering all manner of perks to the company in the hopes of breaking free from the broadband duopoly logjam. And in markets where Google Fiber was deployed, prices dropped thanks to this added competition (fancy that!).

The fun didn't last. In late 2016 Alphabet began getting cold feet about the high costs and slow return of the project, and effectively mothballed the entire thing -- without admitting that's what they were doing. The company blew through several CEOs in just a few months, laid off hundreds of employees, froze any real expansion, and cancelled countless installations for users who had been waiting years. And while Google made a lot of noise about how it would be shifting from fiber to wireless to possibly cut costs, those promises so far appear stuck in neutral as well.

Now another Google broadband disruption play is meeting a similarly uninspiring end. Google Loon, Alphabet's attempt to use coordinated hot air balloons to provide supplemental broadband service to hard to reach areas, is being shuttered after nine years of development. While the company quieted many doubters who didn't think the project would work, it said it was never able to find a sustainable business model:

"While we’ve found a number of willing partners along the way, we haven’t found a way to get the costs low enough to build a long-term, sustainable business. Developing radical new technology is inherently risky, but that doesn’t make breaking this news any easier. Today, I’m sad to share that Loon will be winding down."

Unlike Google Fiber, Loon was less about disruption and more about supplementing existing service. Whereas Google Fiber directly challenged incumbent telecom providers, Loon was supposed to be a tool to work hand in hand with those companies to supplement existing and patchy cellular service, especially in less developed nations. It's fairly clear those companies weren't interested in partnering with a potential competitor in other spaces. And while Loon will be headed to the great project graveyard in the sky, the company hopes some of the coalitions built around the effort persist:

"The Loon team is proud to have catalyzed an ecosystem of organizations working on providing connectivity from the stratosphere. The world needs a layered approach to connectivity — terrestrial, stratospheric, and space-based — because each layer is suited to different parts of the problem."

To be clear, disrupting telecom isn't easy. It's a largely broken sector largely dominated by monopolies that are politically powerful because they're tethered to the nation's intelligence and emergency response infrastructure. And while Google may have not fully succeeded at disruption (in part thanks to dubious behavior by telecom monopolies), projects like Google Fiber certainly did help amplify a lack of US broadband competition, and provided a helpful template for a lot of communities eager to strike public/private partnerships to try and improve regional broadband infrastructure.

At the same time, the ongoing shift away from these moonshots despite a mammoth budget is highly reflective of how Google is a much less interesting and far less creative and courageous company than it was a decade ago. While it's understandable the company wouldn't want to throw a fortune at projects with no returns, the way it has backed away by Google Fiber -- firing employees and mothballing the project without really admitting the project is on ice -- is pretty reflective of a slow but steady culture shift away from the kind of curiosity and integrity that initially made Google so interesting.