Last month, we discussed a crazy lawsuit brought by Alan Rupp, owner of Kern's Kitchen and the trademark for the fairly famous "Derby Pie." Rupp has a reputation for policing his trademark aggressively, having gone after a myriad of online publications and blogs for publishing their own recipes, leading to the EFF at one point posting its own recipe for a "censorship pie."

But threatening blogs is one thing. Going after an established newspaper like the Louisville Courier-Journal is something quite different. Especially when that paper's only actions were, (1) publishing its own recipe for a "derby pie" that differed from that of Kern's Kitchen and, (2) reporting on the existence of other storefronts that sold derby-pie-flavored things. The paper had very clear First Amendment protections for its writings, not to mention that it wasn't using the mark in any kind of commerce. The courts have now agreed, with the latest appeal being tossed.

The Louisville Courier-Journal’s use of the words “derby pie” in a recipe and article featuring variations of the dessert did not infringe on a bakery owner’s trademark rights, the Sixth Circuit ruled. An unpublished decision released Monday by the Cincinnati-based appeals court found the 2017 articles used the term in a non-trademark fashion and therefore did not violate the Derby Pie trademark owned by Alan Rupp.

As far as the court's reasoning, it never even got to the First Amendment questions before tossing this thing in the trash. Instead, the unanimous ruling simply pointed out that the LCJ wasn't using the mark in a commercial fashion and therefore wasn't infringing on Rupp's mark. Going further, the courts pointed out that the manner in which the paper used the term resulted in no reasonable chance that anyone would be confused as to any source of goods or associations to Rupp or his bakery. In the below, Siler is the judge who wrote the opinion.

The first article included a recipe for derby pie, but Siler emphasized the article “does not denote the recipe for the Derby-Pie but a recipe for a ‘Derby pie’ … and simply informs the reader of the type of pie – a chocolate-walnut pie – that the reader can make from the recipe provided.” Siler also pointed out the article identified the Captain’s Quarters restaurant as the source of the recipe on at least two occasions, and the recipe in question was substantially different from the Rupp family recipe in that it included bourbon and excluded vanilla.

“No reader,” the judge wrote, “could possibly think that a so-called ‘Derby pie’ containing bourbon and no vanilla came from the company or companies associated with Derby-Pie.”

The opinion goes on to note that the article about how other companies were selling similar items, but not pies, could "not possibly" come to think that any of those companies were related to Rupp or Kern's Kitchen.

Again, the court never even got to the First Amendment protections the LCJ has in all of this, which would have been yet another reason to toss this case in the trash. In the end, Rupp's lawsuit was always a longshot that very few would have bet on. Now that it's dead, hopefully it will find its way to the glue factory for good.

Here's an interesting decision [PDF] by the Eighth Circuit Court of Appeals. On one hand, it says cops can possibly hassle people for filming them if they can find almost any reason at all to justify it. On the other hand, it says they definitely cannot take people's property (cameras, phones) just because their nearly unjustified hassling gave them the opportunity to seize it.

Here's the setup for the multiple rights violations, courtesy of the Appeals Court:

Daniel Robbins was recording illegally parked vehicles from a public sidewalk adjacent to the Des Moines Police Station when officers approached him and asked him what he was doing. Robbins was uncooperative, and the officers temporarily seized him and his camera and cell phone.

This probably would have gone unhassled if it hadn't occurred near a police station. When citizens record officers on their home turf, they become inordinately defensive. Claims of terrorist attacks or the War On Cops™ often arise, even though -- as officers should be painfully aware -- anything they do on public property is observable by the public. The presence of recording equipment shouldn't change a thing.

Nevertheless, the Des Moines police officers decided to make it a thing. Someone referred to here as a "detective" decided to (inadvertently) make a federal case about a citizen recording illegally-parked cars and cops going to and from the station. He had reasons.

While walking towards his car, Detective Youngblut observed Robbins recording vehicles as well as officers and civilian employees entering and leaving the police station. Because he was aware that vehicles had recently been stolen from and vandalized in that area, and because he was aware of a previous incident in which two officers had been murdered by a person with a history of filming the police, Detective Youngblut approached Robbins to make an inquiry.

LOL. OK. Well, let's just ground all the planes and hassle every passenger because one time people flew planes into buildings, killing a few thousand people. While this "suspicion" may have justified a quick, consensual Q&A with Robbins, "Detective" [these scare quotes will be even more justified in a moment…] Youngblut decided to go further.

Other officers -- apparently similarly offended by this reckless display of First Amendment rights -- got to Robbins first. And they applied pressure.

Robbins refused to identify himself or respond to law enforcement inquiries, explaining “I’m taking pictures because it’s perfectly legal for me to do so.” Lieutenant Leo initiated physical contact when he lifted the back of Robbins’s shirt, grabbed his forearm and placed it above his head, and patted him down. Robbins repeatedly asked what about his conduct was illegal, and the officers responded that while he was not doing anything illegal, he was suspicious.

Ah. Not illegal. Just worth getting uptight about. The officers ordered Robbins to leave. He refused. So they got even stupider. They demanded Robbins ID himself. This was also wrong. Iowa has no law requiring citizens to ID themselves when interacting with police officers.

But it wouldn't have mattered for Robbins. Why? Because the man with all the investigative skills -- Detective Youngblut -- told the officers to just make something up.

Detective Youngblut suggested that the officers “just make a suspicious activity case . . . [and] confiscate the camera until we have a reason for what we’re doing.”

Swell. If you don't have a REAL reason for doing something, just find ANY reason.

Robbins asked if he was under arrest and being detained against his will. The answer to both questions was yes, provided by the detective who said to make something up. At that point, the illegality started to pile up.

The officers seized Robbins’s cell phone and camera. Detective Youngblut photographed Robbins for his file and then told him that he was free to go. The encounter lasted approximately twelve minutes.

The "encounter" may have lasted 12 minutes, but the seizure of Robbins' phone and camera lasted 12 days. Robbins lost both on May 10. It wasn't until his lawyer spoke to the police department that his items were returned.

Unfortunately, the court says all of this bullshit -- including the detective suggesting someone just make something up -- isn't a violation of Robbins' First Amendment rights. According to the Eighth Circuit, there was enough non-made-up suspicion to justify the rousting of Robbins.

Here, law enforcement officers observed Robbins recording both vehicles near the police station and officers and civilian employees entering and leaving the police station. The officers also possessed other significant information: they were aware of recent criminal activity involving cars parked in the area, and they were aware of a previous filming and stalking incident that escalated into the murder of two officers. Armed with this knowledge, Officer Youngblut approached Robbins and asked him what he was doing. Robbins was non-responsive, evasive, and confrontational. Officer Youngblut reasonably found Robbins’s behavior suspicious.

Robbins’ behavior that went beyond any constitutionally protected recording activity when combined with the officers’ knowledge about vehicles being stolen and vandalized in the area and the previous filming that led to officers being murdered could cause an objectively reasonable person in the officers’ position to suspect Robbins was up to more than simply recording the police. Under these circumstances, we can neither say that the officers’ conduct was objectively unreasonable under clearly established law, nor in violation of the First Amendment.

According to the court, Robbins' filming of police was suspicious enough to justify this interaction. But it was not suspicious enough to justify the seizing of his recording equipment. And definitely not enough to justify holding onto it for 12 days.

The officers argued they never arrested Robbins, therefore the court should bypass analysis of the seizure of Robbins himself. The court says it's pretty clear Robbins was arrested, even if momentarily. That much was made clear by Detective Youngblut, who told Robbins he was both arrested and detained.

Having failed to sway the court with this "non-arrest" argument, the officers went fishing for arrest reasons. One theory was "loitering." Wrong, says the court.

Viewing the facts in a light most favorable to Robbins, a reasonable officer would not have believed he had probable cause to arrest Robbins for loitering because there is no evidence Robbins was blocking the sidewalk or disrupting the activity of the police station.

The other theory was Robbins providing officers with a false name when hassled: "John Doe." Wrong again, says the court. This fake name wasn't presented until after Robbins was already under arrest. It's impossible to arrest someone for something they didn't do until after they were arrested.

Despite there being a clear warrant requirement for search and seizure of cellphones following the Riley decision, the cops argued their seizure of Robbins' recording equipment fell into a "narrow exception'' that covers "brief detentions" of personal property that are "minimally invasive." But the officers could not explain how a 12-day seizure was "brief," even if it was "minimally invasive." GTFO, says the Eighth.

The Supreme Court concluded that a ninety-minute detention of a suspect’s luggage based only on reasonable suspicion was unreasonable.Regardless of whether the Place exception applies to personal effects such as cell phones and cameras, the duration of the seizure – twelve days – was unreasonable.

The refusal to return the property to Robbins made it worse. And it shows Detective Youngblut really hasn't earned that title.

In addition, the officers did not tell Robbins with any precision when or how he would get his property back. Rather, Detective Youngblut told Robbins he was investigating a homicide and would apply for a search warrant “at some point.” Detective Youngblut disposed of his suspicions and the need for a search warrant after discovering Robbins had a YouTube page dedicated to illegally-parked vehicles. Even so, Detective Youngblut continued to detain Robbins’s property until his counsel demanded its return.

Owning a fishing rod doesn't automatically make you a great fisherman. And it sure as shit doesn't make you a good detective. This was a punitive seizure and Youngblut couldn't even be bothered to come up with a credible excuse for separating Robbins from his phone and camera for 12 days.

The court says being a jerk isn't a crime. None of this was justified.

Under the facts of this case, the governmental interest, presumably to dispel whatever suspicion the officers had about Robbins, does not outweigh the intrusion to Robbins. The seizure was unreasonable in the absence of arguable probable cause. See Place, 462 U.S. at 707–10.

The defendants alternatively argue that Robbins’s uncooperativeness gave them probable cause to seize his property. This argument fails for the reasons stated above. The defendant officers violated Robbins’s clearly established right to be free of unreasonable seizures of his property, see id., and are not entitled to qualified immunity.

The case heads back to the district court. The officers -- including this so-called "detective" -- will have to take their chances on a jury finding illegal arrest and follow-up seizure were somehow justified. This seems unlikely. Chances are Robbins will receive a settlement before a jury has a chance to receive instructions from a federal judge. The officers may have had their reasons to approach a man filming a police station, but nothing they did after they approached him was Constitutional.

There's a warrant requirement for cellphone searches, thanks to the Supreme Court's Riley decision. But not every search is, um, warranted, even when officers have a search warrant in hand.

A case [PDF] recently handled by the Fifth Circuit Court of Appeals makes this point clearly and effectively. It's the "effective" part that matters the most. A search that went outside the boundaries of the affidavit's stated purpose has resulted in a vacated child porn conviction.

It all started with a traffic stop -- one that first led officers to believe they'd made a drug bust.

Brian Matthew Morton was stopped for speeding near Palo Pinto, Texas. After the officers smelled marijuana, he gave consent to search his van. Officers found sixteen ecstasy pills, one small bag of marijuana, and a glass pipe.

Then things got a little weird.

When, however, they discovered children’s school supplies, a lollipop, 14 sex toys, and 100 pairs of women’s underwear in the vehicle, they became more concerned that Morton might be a pedophile.

But the arrest was for drug possession, since the rest of the items, while concerning, were not illegal to possess. Texas Dept. of Public Safety Trooper Burt Blue applied for a warrant to search three cellphones found in the van. But if the trooper had suspicions about possible child porn production/possession, he didn't bother to add that to the search warrant affidavit.

Trooper Blue’s affidavits for the search warrants mentioned no concerns about child exploitation; instead, the warrants purported to seek more evidence of Morton’s criminal drug activity based on Trooper Blue’s training and experience—fourteen years in law enforcement and eight years as a “DRE-Drug Recognition Expert”—as well as the drugs found in Morton’s possession and his admission that the drugs were in fact marijuana and ecstasy.

Here's what the affidavits claimed -- that Trooper Burt would be searching for evidence of drug possession.

It is the belief of affiant that suspected party was in possession of and is concealing in [the cellphones] . . . [e]vidence of the offense of Possession of [ecstasy], possession of marijuana and other criminal activity; to wit telephone numbers, address books; call logs, contacts, recently called numbers, recently received calls; recently missed calls; text messages (both SMS messages and MMS messages); photographs, digital images, or multimedia files in furtherance of narcotics trafficking or possession.

That's a weird thing to search phones for, especially when the suspect was arrested because of the drugs he had in his possession. The affidavits claimed the phones would be searched for evidence of "other criminal activity," and asked for blanket permission to search almost everything on the phones for more evidence. But the final part of this statement narrowed the scope back to a pinpoint, indicating exactly what Trooper Blue would be searching the phones for: evidence of "narcotics trafficking or possession."

Once investigators got into the phones, they completely forgot they were supposed to be looking for evidence of drug possession and trafficking.

While searching the phones’ photographs, Trooper Blue and another officer came across sexually explicit images of children. The officers then sought and received another set of warrants to further search the phones for child pornography, ultimately finding 19,270 images of sexually exploited minors. The government then indicted Morton for a violation of 18 U.S.C. § 2252(a)(2) for the child pornography found on his three cellphones. The subject of drugs had vaporized.

Brian Morton attempted to suppress the original warrants -- the ones seeking evidence of drug possession -- claiming they were not supported by probable cause. The trial court ruled in favor of the government and Morton was sentenced to nine years in prison on child porn possession charges.

On appeal, the government admitted it needed separate probable cause to search each category of information targeted by warrants. A warrant to search a phone is not a blanket permission slip. Since phones carry more personal information than most people's houses at this point, the Fourth Amendment bar is raised.

The government still believes it should be able to use the good faith exception to excuse any lack of specific probable cause to search the phones for evidence of drug crimes. The court isn't willing to give the government a pass on this. While probable cause may have supported a search of text messages, IMs, and phone contacts (because to buy drugs, a person generally has to communicate with a dealer), it did not support the search of the photos that led to Morton's conviction on child porn charges.

[T]he affidavits also asserted probable cause to believe that the photographs on Morton’s phones contained evidence of other drug crimes, and on this claim, they fail the test of probable cause as related to the crime of possession. That is, they fall short of raising a “substantial chance” that the photographs on Morton’s phones would contain evidence pertinent to his crime of simple drug possession.

Trooper Blue may have "fourteen years of experience" as a drug warrior, but his assertion photos on the phones would contain further evidence of drug possession is highly flawed. It presupposes something not inherent in the amount of drugs found in Morton's van.

The syllogism that Trooper Blue offers to gain access to Morton’s photographs does not provide adequate grounds for the extensive search. In short, the syllogism is (1) Morton was found with personal-use quantities of drugs; and (2) drug dealers often take photos of drugs, cash, and co-conspirators; it therefore follows that (3) the photographs on Morton’s phones will provide evidence of Morton’s relationship to drug trafficking. The fallacy of this syllogism is that it relies on a premise that cannot be established, namely that Morton was dealing drugs. And here, Trooper Blue disregarded key facts that show that the evidence did not support probable cause that Morton was a drug dealer.

The trooper only found a single, small bag of marijuana and a few ecstasy pills. He did not find anything that would have suggested Morton was a dealer, like scales, packaging, or weapons. Also, as the court points out, Morton was originally charged with "possession," not "trafficking." This further indicates the trooper did not actually believe Morton was a dealer.

And that nullifies the searches of Morton's photos -- the ones that took the investigation in an entirely new direction.

Since it seems that no evidence supported probable cause to believe that Morton was dealing in drugs, the affidavit leaves us with only the allegations that (1) Morton was found with drugs so (2) it therefore follows that the photographs on Morton’s phones will provide evidence of Morton’s crime of drug possession. With only this bare factual support that Morton possessed drugs, the affidavits contain nothing to link Morton’s marijuana and ecstasy with the photographs on his phones. The affidavits thus do not create a “fair probability” or a “substantial chance” that evidence of the crime of drug possession will be found in the photographs on Morton’s cellphones. Therefore, under these facts and based on the specific language in these affidavits, we hold that probable cause was lacking to search Morton’s photographs for proof of his illegal drug possession.

The government gets no "good faith" award for relying on faulty warrants. Just because a judge signed off on the requests does not mean the requests were justified, even if they ultimately resulted in issued warrants.

Here, even giving the magistrate’s determination the deference due, we hold that the magistrate did not have a substantial basis for determining that probable cause existed to extend the search to the photographs on the cellphones. Even if the warrants provided probable cause to search some of the phones’ “drawers” or “file cabinets,” the photographs “file cabinet” could not be searched because the information in the officer’s affidavits supporting a search of the cellphones only related to drug trafficking, not simple possession of drugs. There was thus no substantial basis for the magistrate’s conclusion that probable cause existed to search Morton’s photographs, and the search is not saved by the magistrate’s authority. The search was unconstitutional, not subject to any exceptions, and the evidence must be suppressed as inadmissible.

And, since the initial searches weren't based on probable cause, the subsequent searches following the discovery of child porn are irrevocably tainted. The evidence is thrown out and, without the thousands of child porn photos, the government has nothing left but some sex toys, women's panties, and a lollipop. That might be a little creepy in this context, but there's no law forbidding people from driving around with unusual items in their vehicles.

Lots of folks are reporting on the news that German Chancellor Angela Merkel has now said that she finds Twitter's decision to ban Donald Trump "problematic."

German Chancellor Angela Merkel blasted Twitter’s decision to ban U.S. President Donald Trump.

“The right to freedom of opinion is of fundamental importance,” Steffen Seibert, Merkel’s chief spokesman, told reporters in Berlin on Monday, according to Reuters.

“Given that, the chancellor considers it problematic that the president’s accounts have been permanently suspended.”

Of course, this totally leaves out the fact that Germany is among the countries leading the charge in forcing internet companies to remove "dangerous" or "terrorist" content. I mean, it was only three years ago when the infamous NetzDG law went into effect, giving social media companies 24 hours to remove "obviously illegal" content, with threats of fines up to €5 million for employees of these companies if they magically fail to delete such content.

As we've pointed out, this is an impossible standard to meet, and it's likely to get worse. The law has been a total dumpster fire with websites rushing to remove all sorts of content (including criticism of Angela Merkel...), to avoid facing penalties under the law.

On top of this, Germany has been among those pushing for new rules, such as the Terrorist Content Regulation that would give companies only an hour to remove "terrorist content."

So it seems a bit rich for Merkel to now whine when Twitter shuts down Trump's account. Of course, I've heard two semi-defenses of Merkel's statement here. The first is that she's distinguishing between removing specific tweets and shutting down the full account. And the second is that in the EU, they distrust corporate power, but are more trusting of government power. So they're okay if the government decides to block certain content, but not comfortable with companies doing the same.

Indeed, the next part of Merkels' statement seems to highlight that both of those claims explain this weird cognitive dissonance:

Seibert said that, while Twitter was right to flag Trump’s inaccurate tweets about the 2020 U.S. election, banning his account altogether was a step too far. He added that governments, not private companies, should decide on any limitations to freedom of speech.

But... that doesn't hold up to any amount of serious scrutiny at all. After all, even if it is the government that passed the NetzDG law, and is working on other laws like the Digital Services Act and the Terrorist Content Regulation, every one of those laws then basically hands off the decision making to those companies. They never pick and choose which content is bad, they just tell the companies that if they mess up, they may face huge fines and/or criminal prosecution. That leads to massive over-censorship.

Indeed, it creates such a liability for companies that they will frequently overblock to avoid that liability. It's just not worth it.

So, the whole thing is ridiculous. It's yet another version of the "nerd harder" response from politicians, claiming that this kind of blocking is a bridge too far, but that other kind of blocking is fine, and if you mess it up in either direction (blocking too much or too little) you'll get in trouble.

This is what's so frustrating in all of this. People who have no idea how all of this works seem to expect that there's some magic way to do the perfectly correct amount of moderation. They're wrong. There's always, always, always, going to be disagreements about the proper amount of moderation, and Merkel's been part of the problem in pressuring companies to take down too much. It's quite ridiculous for her now to complain that companies are doing what she and her government have been demanding all along.

Background

First of all, corporations enjoy First Amendment protections, among other constitutional protections. Although some of my friends decry that proposition, given the Supreme Court's current composition, that is not going to change during my lifetime. And the First Amendment protects the right to refuse to associate with speech one does not like. There is only so much that legislation could do to prevent companies like Twitter from controlling the speech that they allow.

Second, withdrawing or adapting the section 230 liability shield is one way to impose limits on platform's adoption or implementation of their content control policies, perhaps, but there is no reason to think that any withdrawal that is likely to pass, and that would be constitutional (because it does not involve viewpoint discrimination), would be better than the current state of affairs. Moreover, that would be a very blunt instrument that could not easily be calibrated. I strongly support the principles of section 230, which allow online platforms to decide what speech they will allow on their platforms by protecting them against liability for speech that they carry (with very limited exceptions). They are not common carriers, like USPS or the PSTN’s. (Thus, Apple and Google could cabin Parler by threatening to deny it access to the App and Play Stores, and Amazon could deny Parler web hosting services, all on the ground that Parler failed to successfully enforce rules against advocacy of political violence. I find it mind-boggling that people who call themselves “conservative” are railing about the plug being pulled on a platform for the stated reason that it allegedly fails to block calls for political violence). And they are not government bodies, which are (largely) forbidden to engage in content discrimination, and especially viewpoint discrimination, in allowing or suppressing speech. Section 230, both as a legal principle but also as a social principle, not only allows platforms to tolerate speech that I find abhorrent, but also allows them to exclude speech that I detest, or speech that I adore.

Third, the drafters of section 230 recognized that platforms would have content policies, and considered it desirable for them to have content policies. Indeed, you can’t run a platform without content policies. Anybody who has ever tried to moderate a discussion group will fully appreciate these considerations. And content moderation is HARD. The periodic “COMO” sessions addressing “Content Moderation at Scale” explored the difficulties through a series of hypotheticals. What became clear is that people of good will, even those with relatively common policy perspectives, trying to apply even the best of content policies, will get it wrong sometimes – and that is even if they have lots of time to evaluate a single statement.

It is inevitable that different platforms will take different stances about what speech they will tolerate and what speech they will exclude—in part because of the audiences at which they aim.

The Reasons for Banning Trump

Turning to Twitter, and to Trump in particular: Twitter has for many years had a variety of rules about speech that may and may not be posted to Twitter, which they call their trust and safety guidelines. This includes a ban on speech glorifying or promoting violence; it also includes a ban on false statements about the election. (Many years ago I was asked if I would be willing to be on their outside trust and safety council; I decided it would not be appropriate for me to do that for a number of reasons).

I have never been a fan of social media companies trying to assess the truth or falsity of factual statements, or the hurtfulness of opinions and rhetoric deployed there. The assumption of such a role is likely to lead to the suppression of voices that criticize the rich and powerful (that is, those who can afford to hire lawyers to file baseless lawsuits, or who can deploy government power to attack their critics), or on abusive law enforcement officials themselves. But Trump’s misuse of Twitter and other platforms to foment a violent attack on democratic elections has taken matters to another level.

In the weeks leading up to the attack by a mob of Trump supporters on the Congress, Trump used both tweets and other public communications to try to steal the election from his victorious opponents. At the same time, he tried to use his connections with officials in several states where he had lost to induce them to overturn his losses in those states. Then, with his campaign of frivolous litigation and threats to state election officials having come to naught, he and his mouthpieces escalated heir attack on democratic elections, encouraging his supporters to engage in a physical confrontation with members of Congress in an apparent effort to delay the certification of his electoral college loss. There is every reason to believe that many of the supporters who tried to storm the Capitol believed that they were acting at Trump’s behest, and some analyses suggest that Trump’s language was carefully calculated to encourage the supporters to use violence. My reading of the language leads me to conclude that the calls for violence were insufficiently expressed to make them indictable under the standards set forth in Brandenburg v. Ohio, 395 U.S. 444 (1969), just as my view is that his threats to Georgia state election officials, on a recording, fell short of criminal threats or incitement.

Assuming, as I do, Trump cannot be held legally responsible for inciting the riot, he was still morally responsible for it. And even assuming, as I do, that he cannot be convicted for these communications, that doesn’t mean that a private company, unbound by First Amendment standards, would be unjustified in deeming them a gross violation of its policies against advocating or glorifying violence, and hence treating them as a proper basis for denying him a platform. Platforms are expected to withdraw the accounts of members of the public who repeatedly abuse their access to infringe copyright—indeed, the DMCA gives them a powerful legal incentive to do so. (In my legal practice, I have had to deal with web hosting services that were considering removal of consumer-friendly platforms that were receiving bogus claims othat my clients were hosting defamation or other tortious speech. Despite their section 230 protection, they often simply did not want to deal with the trouble).

In that context, it is no surprise that a platform cancelled the account of a politician who repeatedly abused his access to foment a riot. And Trump, after all, is wealthy enough, and remains powerful enough, to use other means to amplify his speech. Indeed, he has one mainstream news channel and several smaller ones that are dying to carry his speech.

But, at the same time, Twitter has allowed exceptions to those rules, and one very prominent exception is that senior government officials, particularly heads of state, are given more leeway on the theory that there is public interest in letting the public know what such people are saying. As a practical matter, Trump has had almost complete immunity from the sorts of restrictions that constrained other Twitter users. Much of what he has posted was a gross violation of Twitter’s rules, but he was allowed to get away with it. Note that Trump’s hold on the special exception is due to expire on January 20.

What I think has really happened is that, for a variety of reasons, Twitter decided to take away Trump’s special exception, and his ban — based on a range of past conduct — was the inevitable result of that change of position. Twitter has both taken away the special exception a few days early, and made its decision retroactive. Considering the way in which Trump managed to use his bully pulpit to incite a violent attack on Congress that was aimed at overturning a democratic election in which he was defeated, that seems to me to be within the range of understandable reaction.

Twitter’s Obfuscation

But the reasons that Twitter gave for its decision strike me as laughable – recall he was suspended for 24 hours, then allowed back on the condition that he delete certain tweets and stop violating the rules. He did delete the tweets in question, and to my mind nothing he did after being reinstated violated their rules. He gave appearance of trying to satisfy them.

Twitter’s blog post explaining the Trump ban, asserted that two Trump tweets violated their rules against glorifying violence. But the two posts they quoted did nothing to “glorify" violence” What this comes down to is that Twitter says Trump has been banned because some of his supporters (in unspecified instances) are allegedly reading his post-suspension tweets in various dangerous ways. And misreading what he said, I might add.

One of the tweets praised his supporters — the 75,000,000 voters who supported him. He called them patriots. He said they should be respected and should continue to have a loud voice. That does not encourage violence.

The other tweet said he won't be at the inauguration. Yes, a break with tradition, but maybe the best response is, good riddance!

Twitter says (and some other reports have echoed these concerns) that there are plans for armed protests and another attack on the Capitol. That is of great concern. But Twitter does not say that Trump is involved in that planning or that he tweeted anything about them. I did notice in passing a report that, after his initial 12-hour suspension was lifted, Trump had retweeted some of those statements. But the report also said that Twitter had cited those retweets in its decision and plainly it has not, so the fact-checking of the report is suspect. I have not been able to locate the report. And, because the Twitter account has been deleted in its entirety, I can’t verify the report (and I have not been able to find any screenshots).

Now, when Twitter justifies its decisions by relying on tweets that do not, in actuality, violate its rules, it just tends to suggest that what it has done is arbitrary. And that is not useful.

What May Really Be the Reasons

It appears to me that Twitter’s official views on Trump’s status evolved very quickly in the past week. Although top executives felt that so long as he was president he should continue to enjoy his special exception, Twitter staff apparently were very much of a different opinion, and forcefully so. There was apparently a staff petition, and then a large intra-staff meeting, in which Twitter’s top executives were raked over the coals by their staff for their inaction against the Trump account. That may well have mattered.

Additionally, Twitter was facing intense pressure on Capitol Hill and in the public arena to be more forceful about Trump’s incitement of the attach on the Capitol, and I believe they were genuinely concerned that, left with his Twitter account, he might well have used it to incite further violence on January 17 (Q being the 17th letter of the alphabet) and January 20. Not because the two tweets did that, but because the guy is out of control. The explanatory blog post refers to the covert planning for January 17 and January 20 repeat attacks, and I think it is quite possible that Twitter was worried that Trump might abuse his privileges. I wish the company had just said that (comparable to Facebook’s explanation) and said that, in retrospect, they had decided that its initial sanction for Trump’s previous violations of its rules was not sufficiently severe.

Perhaps More Cynical Explanations

First: Both Twitter and Facebook have cut back on Trump knowing that he is not going to have the powers of the presidency much longer, and that, indeed, both the White House and, soon, both Houses of Congress are going to be in Democratic hands. Just as they went out of their way to propitiate conservatives who claim (falsely) that social media companies discriminate disproportionately against conservatives, while those conservatives ran the Senate and the White House, these companies don’t want to be adverse to the new power in DC.

Second, and this is a related point: Trump liked to talk about how much benefit he derived from his Twitter account, but the converse is also true: Twitter has profited enormously from Trump’s account, which creates enormous controversy and hence draws many eyes to Twitter where they will see ads. A number of people in the tech sector have been saying that the situation has simply evolved to the point where the benefits that Twitter was getting from hosting @realDonaldTrump were getting to be greatly exceeded by the costs.

Third: One exception to section 230 immunity is for speech that violates the federal criminal laws. Some people have suggested that federal law enforcement officials may have reached out to Twitter to warn that if its facilities are used to incite more riots in Washington DC, such as on January 17 and January 20, it might face grand jury scrutiny. Now, to my mind the First Amendment’s Brandenburg standard would likely bar prosecution for mere passive hosting of prosecutable incitement; the Brandenburg standard requires not just incitement of imminent lawless conduct, but intent to incite imminent lawless conduct, and passive hosting of speech of which the host is not aware does not involve intent. But the possible exposure without section 230 immunity, and needing to rely only on the First Amendment, might well have been a chastening factor.

Paul Alan Levy is a free speech litigator in Washington DC

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Every year a few days after New Years we post some stats about traffic and comments to effectively close the books on the year. I know that lots of sites do this prior to the end of the year, but we always wait until the new year is really here to make sure we have all the actual stats. I had meant to do this last week, but last week was a bit crazy and it kept me a bit busier than the average "first week of January." So, we're running a bit late here. If you'd like to see all such previous posts, they are here: 2019, 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011 and 2010.

Also... a bit of an announcement. In all likelihood this will be the last year that we use Google Analytics for these stats. Over the last few months, we've been experimenting with a variety of analytics platforms that are more privacy focused, and we are likely to switch over entirely to them in the coming weeks. I don't know for sure, but it's likely we will turn off Google Analytics on this site relatively soon. As we've always said, though, nearly all analytics and traffic numbers are complete garbage, as they cannot distinguish between bots and real people, and many people chose to block analytics programs (especially Google). That's why we stopped reporting absolute numbers in these posts, because we knew they were not accurate. Instead, we do use them to tell relative numbers about which stories got the most traffic overall.

We'll start, as per usual, with where people are coming from. The top of this list tends to stay pretty much the same year in and year out. The majority of our traffic is from the US, not surprisingly. It's almost always between 67% and 70% of our traffic. This year, it was 69.6% of our traffic. The UK was second at 6.1%. Canada was next at 5.1%, then Australia, India, Germany, France, China, the Netherlands and Finland. The surprise here... is China. We've noted in past years how little traffic we get from China, and have received reports of being blocked there. However, it seems like we got a decent amount of traffic from there this year (about 0.8% of overall traffic). I'm not sure why. We did have a bunch of stories about TikTok, so perhaps that has something to do with it. China's entry seems to have pushed Sweden out of the top 10.

Chrome remains the main browser people use to visit the site, but once again that percentage is dropping (it did that last year too). In 2018 it was about 50% of our visitors came via Chrome. Last year it was 45%. This year it's down to 40%. Interesting... interesting... interesting. Safari has picked up much of the slack, jumping from 17% in 2018 to 22% last year and 28% this year. Seems like a trend worth watching. The next two browser listings are interesting: it's Android webview (12%) and Safari In-App at 7%. Arguably you could lump those with Chrome and Safari, but those are both the versions that people see on their mobile phone when they come across our story in another app, like Nuzzel or something. Firefox is hanging in there at 4.5% (down from 6% last year and 10% the year before). Internet Explorer usage continues to dwindle and now it's close to 1%. Microsoft Edge isn't really picking up the slack as it's at 1.8%. And I see Opera hanging in there at 0.5%.

On the operating system side, iOS now dominates, with 32% of our traffic coming from iOS devices. Another 31% is from Android. Those two have been neck-and-neck for years -- but always came below Windows. However, the era of mobile Techdirt has really taken over, and now Windows comes in 3rd with 23% of our traffic, and MacOS is at exactly 10%. Linux lovers are still there at 2.5%, and Chromes OS at just a bit under 1%. A small, but still surprising, amount of visits came from BlackBerry, Playstation 4, and Xbox.

As you can tell from the previous paragraph, mobile continues to grow. Last year was the first year we had more mobile visits that desktop, going from 39% to 55% from 2018 to 2019. In 2020 it was up to 64% (61% phone and 3% tablet). It's really quite amazing how quickly and how massively that shift has occurred. By device, the iPhone dominated the mobile traffic, which isn't surprising. The iPad was second. And from there a looooooong list of Samsung devices with a few Google Pixels thrown in along the way.

Every year we highlight this chart on the source of our traffic (next year's will likely look different, since our new analytics systems don't seem to have an exactly equivalent chart, but I should be able to piece together something similar). What's interesting to me is how similar this one is to last year's. Direct traffic is exactly the same as a percentage. Search traffic went down a bit, while social traffic went up a bit. But, as I always say, our focus has never been playing the games most other sites play to get traffic from social, and we prefer to build up loyal readers, and so the percentage of people coming direct has always been the most important to me. Those are our true supporters and fans. Indeed, people who come directly to the site spend significantly more time on the site and visit more pages than those coming from search, and especially social. People coming via social spend the least amount of time on our site, and visit the fewest pages.

In terms of outside sites that do send us traffic, we have a new one atop the leaderboard -- and this was a surprise to me as I've never even really been aware of it: SmartNews, which is a mobile news aggregator, sent the most (non-search) traffic to our site last year. Huh. If you read Techdirt via SmartNews, tell us about it. I was unaware it was even a thing. After that comes Twitter (with almost as much traffic as SmartNews), then Reddit, followed by Facebook, HackerNews, and the Drudge Report (?!?). In terms of search traffic, Google obviously provides the most, but DuckDuckGo and Bing both provide a surprising amount (and sent almost identical amounts of traffic to us last year).

The top search terms are always bizarre to look at. After variations on "Techdirt" our top search terms for traffic were... Addison Cain, Parler, Shiva Ayyadurai, Who Invented Email, FBI Surveillance Van Wifi, the Social Dilemma, and can you plagiarize yourself. I'll let you make of that what you will.

And now we get to the fun part. The lists!

Top Ten Stories, by unique pageviews, on Techdirt for 2020:

1. Volunteers 3D-Print Unobtainable $11,000 Valve For $1 To Keep Covid-19 Patients Alive; Original Manufacturer Threatens To Sue
2. Trump Promises To Defund The Entire Military, If Congress Won't Let Him Punish The Internet For Being Mean To Him
3. As Predicted: Parler Is Banning Users It Doesn't Like
4. Trump Campaign Gets Laughed Out Of Court For Claiming A Bunch Of Unvetted Webform Submissions Is 'Evidence' Of Voter Fraud
5. President Trump Is So Upset About This Ad Showing His Failed Handling Of COVID-19 That He's Demanding It Be Taken Down
6. Florida State Police Raid Home Of COVID Whistleblower, Point Guns At Her & Her Family, Seize All Her Computer Equipment
7. SoftBank Owned Patent Troll, Using Monkey Selfie Law Firm, Sues To Block Covid-19 Testing, Using Theranos Patents
8. Court Tells Lying Cops That Someone Asserting Their Rights Isn't 'Reasonably Suspicious'
9. Mitch McConnell Using Section 230 Repeal As A Poison Pill To Avoid $2k Stimulus Checks
10. Cable TV Execs Move Past Denial Stage, Now Fully Expect A 'Cord Cutting' Bloodbath

Pretty good mix of stories, though way too many stories about the president out of control. One hopes we'll have fewer such stories this year. I know a lot of people continue to link and send traffic to my you're wrong about Section 230 post, so for those interested, that one came in at number 16 on the year.

2020's Top Ten Stories, by comment volume:

1. As Predicted: Parler Is Banning Users It Doesn't Like: 772 comments.
2. Disney+ Titles Disappear Without Warning, Bringing Confusion To The Streaming Wars: 570 comments
3. DHS Move Ahead With Plan To Harvest DNA Samples From Nearly Everyone Detained By ICE And CBP: 546 comments
4. So Wait, People Really Think The Barr DOJ's Investigation Into Google Is In Good Faith?: 515 comments
5. Copyright In The Modern Era: Fortnite Lets Players Mute Emote To Avoid Auto-Copyright Claims Against YouTubers: 432 comments
6. Harper's Gives Prestigious Platform To Famous Writers So They Can Whine About Being Silenced: 413 comments
7. Trump Campaign Gets Laughed Out Of Court For Claiming A Bunch Of Unvetted Webform Submissions Is 'Evidence' Of Voter Fraud: 342 comments
8. Anti-Vaxxer Sues Facebook, In The Middle Of A Pandemic, For 'In Excess' Of $5 Billion For Shutting Down His Account: 315 comments
9. Joe Biden Can't Tell The Difference Between The 1st Amendment & Section 230; Still Thinks Video Games Cause Violence: 291 comments
10. Mitch McConnell Using Section 230 Repeal As A Poison Pill To Avoid $2k Stimulus Checks: 289 comments

That first story, about Parler's content moderation practices, is amusing -- and I recommend potentially subscribing to the comment feed there. Every few days angry Parler supporters show up to whine and scream at us about how now we (we?) are getting a taste or our own medicine, and how of course Parler has to ban "leftists" because they're not serious -- without any of them ever (not once) recognizing that they're proving our point. Our point was not that Parler shouldn't moderate, but that it would and it would be subject to the same forces that make moderation inevitable (though, obviously over the past few days, that story has blown up in new ways as well).

It looks like we actually have two overlapping stories between the most trafficked and the most commented. And that's rare. Usually there's either none or just one. Also interesting to see that the last one on the list is a post from two days before the end of the year. Don't often see those top the comment charts.

And now the really fun part: the commenting leader boards:

2020 Top Commenters, by comment volume:

1. Scary Devil Monastery: 4099 comments
2. PaulT: 4013 comments
3. Stephen T. Stone: 3697 comments
4. That One Guy: 2768 comments
5. bhull242: 1594 comments
6. Uriel-238: 1216 comments
7. ECA: 1153 comments
8. Toom1275: 849 comments
9. Samuel Abram: 800 comments
10. Thad: 722 comments

By definition, most regular commenter readers should recognize those prolific regulars. I will admit to some surprise that SDM is in the top spot. Just from noticing comments, I would have bet that Stephen T. Stone would have retained the top spot he finally wrestled away from PaulT and That One Guy in previous years... but SDM (who was new to the list last year) leapfrogged all of them, and PaulT even pulled back ahead of Stephen.

Top 10 Most Insightful Commenters, based on how many times they got the light bulb icon: Parentheses shows what percentage of their comments got the lightbulb

1. Stephen T. Stone: 1160 comments (31.4%)
2. PaulT: 1043 comments (26%)
3. That One Guy: 901 comments (32.6%)
4. Scary Devil Monastery: 266 (6.5%)
5. Michael Masnick: 223 comments (42.3%)
6. Uriel-238: 215 comments (17.7%)
7. Thad: 199 comments (27.6%)
8. bhull242: 152 comments (9.5%)
9. Toom1275: 128 comments (15.1%)
10. Anonymous Anonymous Coward: 120 comments (18.1%)

A lot of overlap from the most commented lists, but kudos to everyone for making insightful comments.

Top 10 Funniest Commenters, based on how many times they got the LOL icon: Parentheses shows what percentage of their comments got the LOL icon

1. Stephen T. Stone: 94 comments (2.5%)
2. That One Guy: 57 comments (2.1%)
3. Thad: 40 comments (5.5%)
4. Norahc: 30 comments (9.6%)
5. Toom1275: 16 comments (1.9%)
6. Bloof: 16 comments (5.6%)
7. Koby: 14 comments (3%)
8. PaulT: 14 comments (0.4%)
9. Anonymous Anonymous Coward: 13 comments (2%)
10. Samuel Abram: 12 comments (1.5%)

Again, the community is much more stingy with funny votes than insightful votes (and certainly we see some using the "funny" vote lately as a sort of satirical vote on trollish commenters). Notably, last year we called out NorahC for having, by far, the highest percentage of funny comments of anyone who qualified, and they kept it up this year, and even had a higher percentage while posting more comments. That's impressive.

And... with that, the 2020 books are closed, and we've already got a huge number of 2021 comments. I ended last year's post by saying I was sure there would be plenty to talk about in 2020, but I, uh, underestimated just how comment worthy 2020 would be. Here's hopefully to a less eventful 2021, even as it's started off with a bang.

If you hadn't noticed yet, the internet of things is a security and privacy shit show. Millions of poorly secured internet-connected devices are now being sold annually, introducing massive new attack vectors and vulnerabilities into home and business networks nationwide. Thanks to IOT companies and evangelists that prioritize gee-whizzery and profits over privacy and security, your refrigerator can now leak your gmail credentials, your kids' Barbie doll can now be used as a surveillance tool, and your "smart" tea kettle can now open your wireless network to attack.

So of course this kind of security and privacy apathy has extended to more creative uses of internet-connected devices. Case in point: last October, security researchers found that the makers of an IOT chastity cage -- a device used to prevent men from being able to have sex -- (this Amazon link has the details) had left an API exposed, giving hackers the ability to take remote control of the devices. And guess what: that's exactly what wound up happening. One victim and device user say he was contacted by a hacker who stated he wouldn't be able to free his genitals from the device unless he ponied up a bitcoin ransom.

Luckily his genitals weren't in the device at the time, though it's not clear other users were as lucky:

"A victim who asked to be identified only as Robert said that he received a message from a hacker demanding a payment of 0.02 Bitcoin (around $750 today) to unlock the device. He realized his cage was definitely "locked," and he "could not gain access to it." "Fortunately I didn’t have this locked on myself while this happened," Robert said in an online chat."

Given the often nonexistent security on internet of things devices, such problems aren't particularly uncommon in devices like not-so-smart thermostats. It's also a major problem in many hospitals where big medical conglomerates haven't been willing to pony up the money necessary to keep lifesaving technology private and secure. That said, "I had to pay some kid in the Ukraine $750 so I could access my own genitals" is a new wrinkle many hadn't seen coming.

It's just yet another reminder that you shouldn't connect everything to the internet just because you can. And you shouldn't endeavor to engage in such innovation unless you're willing to spend the money and take the time to ensure you're adhering to basic security and privacy standards. Whether a heart monitor or a sex toy, most companies still aren't after ten years of headlines like this. And despite some promising headway being made in policy, our response to the security dumpster fire that is the IOT remains a pretty hot, discordant mess.

A couple of weeks ago, Techdirt wrote about an important copyright case in India, where a group of academic publishers is seeking a dynamic injunction to block access to the "shadow libraries" Sci-Hub and Libgen. The person behind Sci-Hub, Alexandra Elbakyan, has written to Techdirt with an update on the situation:

Sci-Hub account with 180K subscribers with almost everyone supporting it got BANNED on Twitter due to "counterfeit goods" policy. It existed for 9 years and it was frozen once, but I resolved it by uploading my passport scan. But now it is banned without the possibility to restore it, as Twitter support replied! And it happened right after Indian scientists revolted against Elsevier and other academic publishers, after Sci-Hub posted on Twitter about danger of being blocked - thousands of people spoke up against this on Twitter.

Now Twitter said to all of them, SHUT UP!

Although it's impossible at this stage to say whether Sci-Hub's Twitter account was closed as a direct result of action by Elsevier and other publishers, it is certainly true that the Indian copyright case has blown up into a major battle. The widely respected Indian SpicyIP site has several posts on the important legal and constitutional issues raised by the legal action. One of these concludes:

It can only be hoped that the court factors in the different considerations of a developing nation like India as against the developed nations where the defendant websites have presently been blocked, for it will have a massive impact on the research potential of the country.

While another goes further, and insists: "The ongoing litigation, therefore, must, on constitutional grounds if not copyright-related grounds, be decided in the favour of the defendants." Further support for Sci-Hub and Libgen has come from 19 senior Indian scientists and three organizations, and the Delhi High Court has agreed to allow them to intervene, as pointed out by TorrentFreak. In their application, the scientists wrote:

copyright is not merely a matter of private interests but an issue that deeply concerns public interest especially when it comes to access to learning materials... If the two websites are blocked it will effectively be killing the lifeline of research and learning in higher education in the country.

An organization called the Breakthrough Science Society has created a petition in favor of the defendants. The petition's statement says:

International publishers like Elsevier have created a business model where they treat knowledge created by academic research funded by taxpayers' money as their private property. Those who produce this knowledge -- the authors and reviewers of research papers -- are not paid and yet these publishers make windfall profit of billions of dollars by selling subscriptions to libraries worldwide at exorbitantly inflated rates which most institutional libraries in India, and even developed countries, cannot afford. Without a subscription, a researcher has to pay between $30 and $50 to download each paper, which most individual Indian researchers cannot afford. Instead of facilitating the flow of research information, these companies are throttling it.

Alexandra Elbakyan of Kazakhstan has taken an effective and widely welcomed step by making research papers, book chapters and similar research-related information freely available through her website Sci-Hub. Libgen (Library Genesis) renders a similar service. We support their initiative which, we contend, does not violate any norm of ethics or intellectual property rights as the research papers are actually intellectual products of the authors and the institutions.

As these comments from academics make clear, the stakes are high in the current legal action against Sci-Hub and Libgen. Against that background, shutting down Sci-Hub's Twitter account is ridiculous, since it is purely informational, and served as a valuable forum for discussing important copyright issues, including the Indian court case. Whatever you might think of the company's decision to suspend certain other accounts, this one is plainly wrong.

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