When it comes to copyright enforcement, there is always this tension between protection against true copying of expression of content or characters and the benefits of having wider attention paid to the original content. This tension is perhaps most distinctly exhibited when it comes to works and activities done and enjoyed by fans. Fan-fiction, fan-art, fan-made games: these all tend to ride the gray zone between cost and benefit to original creators such that the reactions to them by copyright holders tend to be all over the place. Some creators recognize that most of this expression is a net benefit, while others go the full protectionist route.

Cosplay is in this same boat. As with the above examples, there is nuance when it comes to cosplay. Most cosplay is pure fandom, labors of love enjoyed by participants and viewers alike. In other cases, cosplayers can make serious money from cosplaying. And it's for the latter that the Japanese government appears to think new copyright laws are needed.

Currently, anyone in Japan is free to dress as their favorite characters. But it might not stay free for them to do so. The Japanese government is proposing big copyright law changes for those who make money from cosplaying—and possibly, even for those who don’t.

As writer and translator Matt Alt points out, the Japanese government is currently considering changing the country’s copyright laws, so that professional cosplayers would pay for use of characters.

Where to begin? To be clear, this all targeting only cosplayers who are making money off of character costumes for characters created by other parties. The idea appears to be that those original creators should be getting some kind of a cut, through a license, for the cosplayers ability to dress like the character and make money from doing so.

That may sound reasonable to you, but this is also opening the door to yet another encroachment on fan-created works. The long-tail of this is almost certainly further restrictions on cosplayers, on what is defined as "professional" cosplaying, and on what will or won't require such a license. If you think Nintendo, for instance, isn't eyeing this discussion while drooling, you just haven't been paying attention.

And why are these conversations always so one-sided? Sure, one can argue that cosplayers dressing up as famous characters are getting some value from those original works. That's certainly true. But it works in reverse as well. Widespread interest and participation in cosplaying certainly drives some value back towards the original creator! That's how expression and enjoyment among fans work. So why is there never any discussion about that value?

The answer is that, for basically ever, the world has operated just fine calling the whole thing a wash and letting cosplayers, professional or otherwise, do their thing. Put another way: what is the marginal value any individual manga, anime, or video game creator is providing to the average individual cosplayer? Whatever that number is in dollar value, I can promise you it will be less than the cost of any of these licenses.

Besides, where permission from original authors makes sense, it's already happening.

On Twitter (via SoraNews), Enako discussed the issue, explaining that when she goes on television or appears at paid events, she dresses as original characters to avoid copyright infringement. Moreover, she adds that she also gets permission when she cosplays as characters created by others.

So why is Japan amending copyright law to codify what's already happening organically? And especially in a way that is almost certainly going to drive more protectionism and less cosplay culture as a result.

How does something horrific become an epidemic? Well, if you ignore any problem long enough, it's pretty much guaranteed to get worse.

Early last year, the DOJ released its report [PDF] on New Jersey's Edna Mahan Correctional Facility. The facility houses around 400 female inmates and is overseen by a little over 400 employees. Years of complaints from inmates prompted the DOJ to open an investigation in 2018. It found a pattern of rights violations, pointing out that five corrections officers had been convicted of sexual abuse charges from October 2016 to November 2019, including these three:

In May 2018, an Edna Mahan correction officer was found guilty of five counts of sexually abusing prisoners. According to the sentencing judge, the “pervasive culture” at Edna Mahan allowed this correction officer to abuse his “position of authority to indulge in [his] own sexual stimulation.”

In July 2018, another Edna Mahan correction officer pled guilty to three counts of official misconduct after he admitted sexually abusing three separate prisoners.

In January 2019, another correction officer pled guilty to official misconduct charges after admitting that he repeatedly sexually abused two Edna Mahan prisoners over a period of several years. In sentencing him, the New Jersey court concluded that the officer had “sexually assaulted a vulnerable population.”

That's only the tip of this iceberg. The Wikipedia page for the corrections facility lists seventeen instances of corrections officers being convicted, charged, or fired for sexual misconduct, rape, or sexual assault. The list dates back to 1994, showing this to be an ongoing problem that the New Jersey Department of Corrections has yet to bring under control.

This failure to address the problem made it systemic. Here's the conclusion reached by the DOJ following its two-year investigation:

The Department’s investigation has uncovered facts that provide reasonable cause to conclude that Edna Mahan (1) fails to protect women prisoners from sexual abuse by staff in violation of the Eighth Amendment; and (2) exposes women prisoners to substantial risk of serious harm from sexual abuse in violation of the Eighth Amendment. Systemic failures in Edna Mahan’s policies and practices discourage reporting of sexual abuse; do not provide an adequate response to and investigations of allegations of prisoner sexual abuse; and result in inadequate supervision that provides opportunities for further sexual abuse.

The details in the report are extremely disturbing.

Substantiated incidents of staff sexual abuse of prisoners at Edna Mahan are varied and disturbing. Some staff abused prisoners through unwanted and coerced “sexual contact” or “sexual penetration.” In other instances, prisoners were forced to perform fellatio on or touch the “intimate body part” of staff. In still other instances, staff required prisoners to undress or masturbate in their cells—or even engage in sexual acts with other prisoners—while staff watched. In at least one instance, a correction officer forced a prisoner to keep watch as he sexually abused her to prevent detection of his crimes.

And it gets worse:

Similarly, numerous prisoners report that, during unnecessarily close contact with male correction officers, some correction officers “rub” or “press themselves” – that is, their clothed genitals – against prisoners. Others report being strip searched with several other women at the same time or while male correction officers watched. In one instance, a prisoner reported that a male officer watched as she inserted a tampon. In another instance, it was reported that a group of officers had “viewing parties” of a prisoner with mental illness on suicide watch who believed she was a male and would follow officers’ instructions to dance and show her “penis” while undressed.

Much worse:

Correction officers and staff at Edna Mahan routinely refer to prisoners as “bitches,” “hoes,” “assholes,” “dyke,” “stripper,” “faggot-assed bitch,” “motherfuckers,” and “whores.” They graphically comment on prisoners’ physical appearance or remark about their perceived sexual inclinations and histories.

Prisoners reporting sexual abuse by corrections officers were retaliated against, sent to solitary confinement after being shackled and placed on a Body Orifice Security Scanner, supposedly to check for evidence of assault. (Even if true, these examinations could be performed without shackling prisoners to a chair and subjecting them to a device that searches for hidden contraband, rather than evidence of rape.) Additional privileges were also stripped from those reporting assaults by officers, with some of them losing personal possessions or work opportunities.

In addition, the reporting system was inadequate to handle complaints. And investigations by the prison were deliberately less than thorough, resulting in unearned exonerations and abandoned cases.

Almost a year after the release of this damning report, the trickle of disciplined corrections officers has become a deluge. Following these horrifying allegations, heads have finally begun to roll en masse.

One woman, Ajila Nelson, told NJ.com that officers at the Edna Mahan Correctional Facility on Jan. 11 handcuffed her and others, before punching, kicking, stripping and dragging her to a shower, after which she says an unidentified male officer got on top of her and groped and sexually assaulted her.

And there's more:

Prisoners have told family members and advocates that at least three women at the Edna Mahan Correctional Facility were hurt by officers Jan. 11, including one inmate who now has a broken eye socket and a transgender woman beaten so badly she cannot walk and is now in a wheelchair.

That got the attention of state lawmakers. And with their attention engaged, the NJ Department of Corrections finally decided -- almost a year after the DOJ released its report -- to start taking the problem seriously.

Thirty-one staff members at the Edna Mahan Correctional Facility, New Jersey’s only women’s state prison, have been suspended following reports of inmate abuse by prison guards.

The New York Times reports 22 guards, nine supervisors and the prison’s top administrator have all been suspended. The New Jersey attorney general’s office has opened an investigation into the matter and the State Assembly announced it will be holding hearings to look into the accounts of abuse.

The prison that refused to properly investigate itself is now under two new microscopes. And it has responded by suspending 7 percent of its staff. That's huge. And there will likely be more names added to the list before these concurrent investigations are concluded.

As a nation, we claim to believe in justice: the payment of debt for wrongs against society. But what we're really doing is handing human beings to people who don't believe those in their charge are anything more than receptacles for abuse. It's not enough to take their freedom away. They must also be stripped of their humanity and agency. And when crime goes down we applaud the improvement. But the criminal acts that occur in prisons and jails go ignored because it's easier to believe whatever happens to incarcerated citizens is something they're obligated to endure.

It's this attitude that allows behavior like this to fester and expand until it can no longer be ignored. Edna Mahan isn't an anomaly. It's just the way things are. Most of it flies under the radar. Every so often, the ugliness pokes its head out of the ground and it's no longer able to be ignored. The NJ Department of Corrections had years to address this and it chose not to. That it's doing it now is better than nothing. But any agency that gives a damn about the people it's overseeing would have dumped these abusers and enablers years ago -- not just when faced with a bunch of bad press and government investigations.

The most important point we've repeatedly made about content moderation is that it's not simple, and there are always trade-offs — but this doesn't mean "do nothing" is a viable option. There are no perfect solutions, and that's why experimentation and innovation is important, especially when it comes to pressing moderation questions like those around abuse and harassment. This week we're joined by Tracy Chou, who is doing just this kind of innovation with her app Block Party, to talk about building new tools for fighting abuse and harassment online.

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If you haven't read it yet, I highly recommend Kash Hill's incredible NY Times story about a clearly disturbed individual, who admits to "suffering from severe mental health illnesses," who filled the web with horribly defamatory information about a random guy and everyone in his family. It turned out that the reason appeared to be that nearly 30 years ago, the guy's father had fired the woman from her job in a real estate office. The story is all too familiar to anyone who has experienced harassment online. One of the tactics used was posting completely made up information on a variety of "gripe sites," many of which do very little moderation, or will only take down information if you pay. These sites often fill up with garbage, and certain people have learned to abuse those sites. Indeed, there seem to be a few people who regularly attack everyone they feel has wronged them using such sites.

The article focuses mainly on Ripoff Report, a site we've written about many times in the past, in part because of its various court cases that have often created good Section 230 law. That's not to say Ripoff Report is a good player in the space. Other stories have revealed some highly questionable behavior and the company's position regarding how it handles content moderation is one that I think is short sighted and extremely unhelpful. There are, also, other sites in the space with a wide variety of policies, some much better than Ripoff Report, some much worse.

The article does mention Section 230, and suggests that it is somehow to blame for the problems experienced by the victims of the person in the story. However, I am perplexed about why and what it has to do with this story in any way. The abuser is Canadian. Most of the woman's victims are from Canada and the UK, not the US. The woman doing the abuse was identified and sued for defamation, and a Canadian court deemed her a vexatious litigant and ordered her to stop attacking people online. When it continued, she was held in contempt of court and sentenced to prison.

And even the main site listed in the story, Ripoff Report, notes that it responded to lawyers from some of the victims and took down the stories at issue.

So, we're talking about a non-US abuser and non-US victims, and a US website that actually took down the content. It did take more time than they had hoped, but the system still did work.

Or, some might argue, the problem is Google, that shows these sites way up the listings on searches on your names. Except... that's not true either. As the article notes, Google has increasingly downranked these kinds of sites:

Now Google will remove other harmful content, including revenge porn and private medical information. At the end of 2019, it introduced a new category of information it will take out of your results: “sites with exploitative removal practices.” Google also started down-ranking some of the “complaint” sites, including Ripoff Report.

And yet, some people are running around saying that this article proves that Section 230 or anonymity is a problem. Except that in this case the abuser was not anonymous (or, at the very least, victims figured out who it was relatively quickly, and others seemed to know right away). Anonymity wasn't the issue here. And it's not clear how 230 was the problem either.

Heather Burns, from the Open Rights Group in the UK notes that the real lesson of this story is that so many other systems failed -- and people magically and wrongly expect intermediary liability laws to pick up and carry the weight of all those other failures:

That says:

My takeaway from this awful saga - and January, for that matter - is that intermediary liability law is now expected to carry the weight where social safety nets, mental health services, and criminal law enforcement have failed. That's not what it's for.

And that's exactly right. There are many large societal issues which need fixing in this world, including safety nets, mental health systems, both criminal and civil law procedures and enforcement. And if all those systems fail, blaming intermediary liability laws for not magically fixing them all seems incredibly misplaced. As for bad websites, there is no easy fix there, and changing Section 230 isn't going to fix any of it. As the article itself notes, after Ripoff Report did take down the defamatory posts, the abuser simply increased the posting to other sites and started attacking Ripoff Report too. This is a common practice. The abusive person clearly has mental health issues, and we should be focusing the blame on the system that failed her and her continued abuse -- not blaming the law in a different country because not every site deleted the content that she just kept posting anyway.

Another constitutional challenge to FOSTA has failed, at least for the time being. The bill no one in law enforcement thought would actually help combat sex trafficking became law in early 2018. Since then, it has had zero effect on sex trafficking. And the impetus for its creation -- the prosecution of Backpage execs -- proceeded right along without the law in place.

FOSTA's constitutionality has been challenged before. Last summer, the DC Court of Appeals revived a challenge after the plaintiffs were shot down at the district level. The Appeals Court said the law was littered with broad language that could be construed to target legal actions and behavior. It particularly had a problem with the terms "promote" and "facilitate" when used in conjunction with the law's sex trafficking language.

Andrews has established an Article III injury-in-fact because she has alleged “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Her alleged conduct is “arguably affected with a constitutional interest,” because Andrews’ intended future conduct involves speech. Andrews operates a website that allows sex workers to share information. Her conduct is “arguably proscribed” by FOSTA because it is a crime to own, manage, or operate an “interactive computer service[]” with the intent to “promote or facilitate the prostitution of another person,” 18 U.S.C. § 2421A(a). FOSTA does not define “promote” or “facilitate,” nor does it specify what constitutes “prostitution,” a term undefined by federal law. Nor are these terms limited by a string of adjacent verbs (such as advertises, distributes, or solicits) that would convey “a transactional connotation” that might narrow the statute’s reach.

Not narrow enough, said the Appeals Court. Unfortunately, a federal court in Texas has come to the opposite conclusion about the same terms. (via Eric Goldman)

Its decision says the terms "promote" and "facilitate" are narrow enough to limit collateral damage to free speech and other protected activity. This challenge was filed by Wilhan Martono -- the operator of CityXGuide, someone the DOJ finally used FOSTA against more than two years after it was signed into law.

The Texas court says the language is narrow, targeting only the facilitation of the prostituting of someone else. It does not target prostitution in general. That being said, sex workers who moved to CityXGuide after the shutdown of Backpage were nonetheless collateral damage, even if the law is supposedly in place to punish sex trafficking, not consensual sex work.

Here's the court's rationale for its Constitutional call:

In this case, "promotes" and "facilitates" are not two terms of many in a list. However, these two terms do not stand alone and without context. FOSTA specifically criminalizes owning, managing, or operating a computer service with the intent to promote the prostitution of another person or the intent to facilitate the prostitution of another person.

Most importantly, FOSTA connects both promotion and facilitation to the prostitution of another person. FOSTA does not obviously criminalize speech promoting prostitution generally. Instead, it prohibits an individual from committing certain acts with the intent to promote the prostitution of another person or the intent to facilitate the prostitution of another person. In this context the word "facilitates" is most clearly read as referring to conduct that aids or assists in the prostitution of another person. Thus, the use of the word "facilitates" in FOSTA does not appear substantially to restrict protected speech relative to the scope of the law's plainly legitimate application.

Then the court goes further, equating the hosting of ads for sex work with the act of pimping.

FOSTA explicitly prohibits individuals from performing certain acts with the intent to promote prostitution of another person. It does not prohibit promoting prostitution more generally. In this context, "promotes" can most reasonably be interpreted as "to pander" or "pimp" as the Government suggests.

Even the government didn't argue Martono was engaged in the act of pimping. There are no charges related to that. Instead, his prosecution rests on FOSTA and the "facilitate/promote" language that Martono (unsuccessfully) challenged.

On more logical footing, the court finds the terms "jurisdiction" and "prostitution" adequately defined. But it still says the broad terms that turn hosting into pimping don't threaten protected speech or other legal activities. And since Martono's indictment hinges on FOSTA, the indictment is also good and legal.

The Court holds here that FOSTA is neither unconstitutionally vague nor overbroad. Further, the Court determines that the indictment against Martono was sufficient. Because FOSTA is not unconstitutionally vague or overbroad and the indictment against Martono is sufficient, the Court denies Martono's motion to dismiss.

Martono is sure to appeal this. But he'll be doing it in a circuit that tends to sympathize with law enforcement and isn't exactly known as the bastion of free speech. If it's taken up by the Fifth Circuit, perhaps the Appeals Court will find the DC Appeals Court's reasoning persuasive. Until then, FOSTA is still technically Constitutional. And it will continue to never be used to round up actual sex traffickers.

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You may recall, last summer, there was a big dustup regarding a letter published in Harper's Magazine about cancel culture (though it didn't use that term). I pointed out the irony of a bunch of very famous writers whining about being silenced and even took a shot at what a much better letter could have said. Harper's even asked me to pen a response to the letter which it published (though, it only gave me a limited amount of space, and complained about some of what I originally submitted, which I -- at least -- found amusingly ironic).

Since then these debates have continued to flare up, as people keep screaming "cancel culture" in many situations where it simply does not apply. There are some who argue that there is no such thing as "cancel culture," which possibly takes things too far. I do think what can be said is that there are some cases where someone loses their job for questionable reasons, often having to do with a bunch of people online overreacting. And it's reasonable to point out those cases and to highlight the unfair response. However, the focus on "cancel culture" and the willingness to expand that phrase to cover just about any consequences is very much being abused by the powerful to try to shield themselves from consequences.

Two recent pieces help drive this home. The always insightful and brilliant Margaret Sullivan at the Washington Post has an excellent piece about how being held accountable is not "cancel culture." This article drove home a key point for me: even if there are cases of cancel culture, the people who are whining most loudly about it are really trying to use those few legitimate stories of overreaction as a whitewash shield to argue that they should never be held accountable for their own behavior or assholish behavior.

As Sullivan points out, most of what people are complaining about as "cancel culture" is really people exercising their 1st Amendment rights to call out bad behavior and ridiculous arguments. And that's a good thing. We should want bad behavior and ridiculous arguments to be called out. And, yes, we should recognize that sometimes people overreact. And sometimes there's more nuance and the bad behavior maybe isn't bad, or the ridiculous arguments aren't so ridiculous. But often they are. And that's where people speaking out and debating these things makes sense. As Sullivan notes, having people push back on nonsense is a good thing. It's called responsibility:

It would help if journalists pushed back more effectively. CNN’s Pamela Brown gave a master class in her devastating interview with Madison Cawthorn, a Republican congressman from North Carolina. By the end, he had no defense left for his election denialism.

But, even if that sort of pushback becomes the norm, news organizations should be wary of handing these charlatans a megaphone.

You can call that cancel culture if you want. I call it responsibility.

The good news is that, in America, we get to argue about it.

The other piece comes from Will Wilkinson, who was recently let go from a job he had at the Niskanen Center, after a very disingenuous Trumpist online troll took what was an obvious joke from Wilkinson and pretended it was not a joke, trying to whip up faux outrage and comparing it to outrage that was more legitimate (I'm not going to get into the specifics, because it's really stupid). Unfortunately, the Niskanen Center (whose work I often appreciate) decided to get away from the controversy and let Wilkinson go. And then some people turned up a tweet he had made from last year suggesting that cancel culture isn't real. This resulted in a bunch of "well, what do you think now?" kind of takes.

Except, Will then responded and pointed out that what he experienced is not cancel culture, and rightly notes how the phrase is not just meaningless, but it collapses any of the important nuances and arguments into a mindless slogan (which is what allows dishonest brokers and assholes to hide behind it):

In my experience, tendentious question-begging is the point. Slogans like “cancel culture” and “political correctness” are used again and again to short-circuit debate, avoid the underlying substantive controversy, and shift the entire burden of justification onto advocates of the rival position. The person who believes that the transgression is serious enough to merit severe consequences isn’t given a fair chance to make her case for this position. Instead, she’s forced to earn the right to make the case by acquitting herself of the implicit charge that she is a petty tyrant policing mind-crimes in the name of stultifying ideological conformity. Good-faith discussion of the gravity of racist jokes never gets off the ground.

That’s why “cancel culture” tends to strike me as more of an evasive maneuver than a coherent idea with determinate content.

And that's exactly right. The phrase rarely seems to be used by those who actually are a victim of true overreaction. Even when unfair, they seem to recognize the nuances and uniqueness of their own scenario. Instead, those who scream about cancel culture the loudest seem to be the very type of people who are most afraid of any consequences for being an asshole.

Let's put it this way. Bad judgment doesn't call into question good judgment. The prevalence of unjust and unmerited censure, sanction, and ostracism should not suggest to us that censure, sanction and ostracism, as such, need a hard second look. The problem is the imposition of undeserved or disproportionate penalties. Penalizing people for flouting rules, norms or the terms of agreements is no more worrying than rewarding those who faithfully hew to them. Without the distribution of approbation and disapprobation, without a functioning economy of esteem, human civilization would crumble to dust and blow away.

People should get what they deserve. Duh. But what do people deserve? We’re never ever ever going to agree about that. We will always disagree about the bounds of acceptable speech and behavior. Even when we can manage to agree that somebody's crossed what we agree is the line, we may nevertheless differ sharply about the gravity of the transgression and the price they ought to pay for it. Pluralism is hard. But we should steer into these disagreements, the real ones, and not evade them by fighting over the application of a dumb catchy term somebody made up six months ago to shut down constructive debate about whether the social opprobrium they’re trying to shield themselves and their friends from is deserved.

Exactly that.

You'd be hard pressed to find a sector that has benefited more from the Trump era than telecom. In the last four years, telecom monopolies not only received billions in tax cuts (AT&T nabbed an estimated $42 billion in tax breaks alone), they convinced the Trump administration to effectively neuter the FCC's consumer protection authority, a move arguably worth countless billions more. In both instances these perks were doled out under the auspices that this would drive hiring and network investment. In reality, not only did that not happen, but the opposite happened.

Reports this week indicate that AT&T and Verizon alone have laid of 95,000 employees in just the last five years alone:

"After AT&T slashed headcount by more than 13,000 in the first nine months of 2020, the final tally was always going to be ugly. Results published this week show another 3,870 jobs disappeared in the fourth quarter. More than 50,000 have gone in just five years – about 18% of AT&T's headcount at the end of 2015.

Verizon has pruned with similar zeal. Only 1,000 jobs were cut from the total in the final three months of 2020, and just 2,800 over the entire year. But 45,500 have vanished since 2015, an alarming 26% of that year's count. The combined losses are roughly equal to the entire workforce at Vodafone, a UK-based operator with international operations.

Some losses were expected for these companies as the pivoted from aging landlines to wireless. At the same time, both companies promised that deregulation and tax breaks would immediately translate into thousands of new, high paying jobs, a promise that, by any metric, never materialized. Not only did both companies fire employees by the tens of thousands, giants like AT&T and Comcast reduced overall network investment. Killing net neutrality and the FCC's authority was supposed to create a boom in network investment. And despite former FCC boss Ajit Pai repeatedly pretending that was true, it simply wasn't.

AT&T's layoffs were driven largely by the company's insatiable appetite for mergers that don't make much sense. Said appetites saddled the company with an absolute mountain of debt. That debt was then paid for by the company's employees and customers. Meanwhile, executives like Randall Stephenson, responsible for bungling said mergers and related finances, are now happily retired and napping on giant beds of money.

Every, single time a US telecom monopoly wants something (merger approval, deregulation, subsidies, tax breaks) it promises the Earth, sea and sky. And every, single time, the company fails to deliver and nobody on any level is held accountable. Ever. Nobody, in either party of the U.S. government, has taken any serious steps to thwart this idiotic gravy train (especially those myopically and often performatively focused on "big tech"). Meanwhile, about 90% of the coverage from "he said, she said" media outlets excludes this grift rodeo as essential context.

AT&T receiving countless billions in tax cuts, subsidies, and regulatory FCC favors in exchange for absolutely nothing is the story. Yet any time AT&T's business model is covered, that's simply not mentioned at all by most large outlets. AT&T, tied to the NSA and therefore immune from government accountability, knows it doesn't even have to scrub its website of empty promises because executives know nobody, anywhere, is going to do anything about it.

A Texas immigration lawyer is suing the DHS and CBP over one of its infamous border device searches. His attempt to keep the federal government from accessing privileged attorney-client communications was rebuffed by CBP officers who decided they'd just keep his phone until they were able to access the contents. This is especially problematic considering the lawyer, Adam Malik, is representing clients currently engaged in lawsuits and other legal actions against or involving both the DHS and CBP. (via ABA Journal)

Another troubling aspect of this case is that Malik had already proved his non-terrorist bona fides to the federal government well before CBP officers decided he was in need of some enhanced screening. From the lawsuit [PDF]:

To facilitate his extensive travel, Mr. Malik applied for and received membership in CBP’s Global Entry Trusted Traveler Program (“Global Entry”). DHS approved him for Global Entry on or about November 2014 and approved his renewal in 2019.

To receive membership in Global Entry, Mr. Malik passed a layer of extremely thorough security checks conducted by DHS. Mr. Malik passed a DHS conducted background check against criminal, law enforcement, customs, immigration, agriculture, and terrorist indices, a process that includes fingerprinting. He also passed an in-person interview with a DHS security officer.

Despite being a government-ordained "Trusted Traveler," Malik was detained upon his return from a trip to Costa Rica. During his trip, he had communicated with clients using his law firm issued iPhone. The CBP officers told Malik he had been "randomly selected" for an "eligibility review." Once they had him detained, they questioned him about his personal life, family, and immigration history.

More worryingly, they questioned him about his legal practice and clients, demanding to know who he was representing and which cases he had handled. Obviously, this involved plenty of litigation work involving the same agency now questioning him. Malik refused to answer those questions. That made the CBP unhappy, leading to the incident at the center of this lawsuit.

During interrogation, Officer Sullivan displayed anger to Mr. Malik when Mr. Malik would not reveal Privileged Information. In response to Mr. Malik’s assertion of privilege, Officer Sullivan asked Mr. Malik to place the iPhone on the table. Mr. Malik placed the iPhone on the table.

Officer Sullivan asked Mr. Malik to unlock the iPhone so that the digital contents could be inspected.

Mr. Malik explained to Officer Sullivan that the iPhone contains extensive Privileged Information and allows for the accessing of Privileged Information that is stored remotely. Mr. Malik told Officer Sullivan that he cannot consent to the search of the iPhone.

Texas bar rules prohibit divulging privileged information. Not that it mattered to the CBP officer, who took everything a disturbing step further.

In response to Mr. Malik’s assertion of privilege, Officer Sullivan informed Mr. Malik that DHS was seizing the iPhone and that the digital contents would be searched. Officer Sullivan did not disconnect the iPhone from the internet or the communications network. He failed to take action that would protect the iPhone from accessing the internet or a communications network. Officer Sullivan ordered Mr. Malik to leave the deferred inspection area without the iPhone while the iPhone still was connected to the internet and a communications network.

Neither Officer Sullivan nor any other employee of Defendants asked Mr. Malik to disable connectivity of the iPhone to the internet or to any network. Had Officer Sullivan or any employee of Defendants offered to permit Mr. Malik to place the iPhone in airplane mode upon or after seizure of the iPhone, Mr. Malik would have done so immediately.

As the lawsuit notes, the CBP is given broad discretion on device searches. It can perform basic or in-depth searches of phones without a warrant and with nothing more than reasonable suspicion evidence of a crime may be found on the devices. It also has some national security powers which give it even more leeway. However, there's nothing reasonably suspicious about someone denying access to privileged communications, especially when doing so means they're abiding by their legal obligations as an attorney, rather than shirking them to avoid further border control nastiness from federal officers with too much power and too little oversight.

Despite all this leeway, Malik says the CBP still violated its very permissive directives. It did not attempt to disconnect the phone from any network, which would have allowed it access to data in motion, rather than just data at rest. It did not make any effort to restrict its search to non-privileged information by use of a filter team. Instead, it seized Malik's phone and searched its contents with it connected to the internet and without the aid of anything that would have steered it clear of information it had no business seeing. According to the lawsuit, the CBP is still in possession of the phone, nearly a month after it seized it.

As evidence of the illegal search, Malik states that he received a request for a verification code from FLYP (a call, text, and voicemail app) one day after he was forced to leave his phone in the CBP's possession. This indicated the phone was still connected to the internet and the CBP had unlocked the device.

Two weeks after seizing the phone, the CBP finally got around to getting a filter team together. It sent an email to Malik demanding a list of clients and their contact info. Supposedly this was to identify who his clients were so the CBP wouldn't access those communications. But, as Malik points out, he is forbidden from providing that information. Not only that, but identifying current and future litigants would compromise them and make them more susceptible to adverse actions by agencies opposing them or targeted by litigation.

Plaintiffs are prohibited from identifying such names because the identification for most, if not all the individuals, are connected inextricably with the privileged and confidential purpose for which the clients sought legal advice.

Part of the Privileged Information contained on the iPhone and on the remote servers is identifiable only by a telephone number of the client. Telephone numbers of the clients are privileged and confidential and will lead to exposure of Privileged Information.

Filter team protocols suck when searches are performed by defendants in lawsuits filed by the lawyer whose phone they've seized.

CBP’s proposed filter team as implemented and as articulated in the Directive, creates the appearance of and potential for improprieties. The Directive authorizes CBP officers to rummage through attorney-client communications. The use of the filter team in these circumstances will chill the free flow of information between clients and lawyers.

Malik asserts a number of First and Fourth Amendment violations. The seizure and search of communications and other information protected by the First Amendment ("expressive content, associational information, and private information") without reasonable suspicion of criminal activity is just one of the problems. The same lack of suspicion carries over the Fourth Amendment, which guards against "unreasonable" searches, no matter what their context.

In addition to findings in favor of his Constitutional claims, Malik is also asking for an independent team to be involved in the search of information on the iPhone and to be given the right to challenge any search that may result in privileged communications being accessed by the government. He also wants CBP blocked from searching the phone until his demands are met and a Special Master put in place to oversee the search. Finally, he asks for a permanent injunction blocking the government from searching the phone at all, which, if granted, would make the intermediate demands unnecessary.

From these allegations, it appears the CBP retaliated against the lawyer because he refused to break his code of ethics. And it appears CBP officers were willing to violate long-held ethics itself if this "Trusted Traveler" wouldn't do it for them. This is the unsurprising side effect of giving border control agencies almost complete control over travelers and their possessions. When there are few restraints, very few will act with restraint. Hopefully a lawsuit like this will start nudging our borders back into Constitutional territory.