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09 Jul 21:51

Biden's Executive Order On Competition Has... Lots Of Really Good Ideas? Though, Potential Overreaches On Executive Power

by Mike Masnick

Given how many discussions on antitrust these days are mind bogglingly bad, I was nervous when it was announced that the Biden Administration would be releasing an executive order on competition. Now that it's out however, I have to admit that I'm very surprised. The executive order is actually full of mostly good ideas. I was... not expecting that. I do think, however, that in some areas it probably (unfortunately) over-stretches executive authority, which should be concerning. But on the whole, there are a bunch of ideas in here to actually deal with anti-competitive problems.

On labor markets, the executive order encourages the FTC to take some positive steps:

  • Encourages the FTC to ban or limit non-compete agreements.
  • Encourages the FTC to ban unnecessary occupational licensing restrictions that impede economic mobility.
  • Encourages the FTC and DOJ to strengthen antitrust guidance to prevent employers from collaborating to suppress wages or reduce benefits by sharing wage and benefit information with one another.
  • We've talked about all three of these issues extensively in the past, and just how damaging they are. Occupational licensing is massively damaging, in that it's used to exclude people from jobs, limit competition, and drive up costs to consumers, all based on often completely bogus claims about "safety and security." I've talked in great detail about how noncompete agreements suppress innovation, and that there is extremely compelling evidence that a key reason why Silicon Valley became Silicon Valley is because noncompetes are not enforceable in California (and, relatedly, that the downfall of Detroit was in Michigan making noncompetes enforceable in the early 1980s). Indeed, I've long advocated that every state should follow California's lead and ban noncompetes. And, for all the talk about how "evil" big tech companies are, one area where I have strong agreement is how they colluded to keep wages down a decade ago.

    So these three things all sound... really great? However, I'm not entirely sure that the President can actually do things this way. Yes, the executive order just says that he's "encouraging" the FTC to take these steps, but the FTC is supposed to be an independent agency, and we should all be at least somewhat hesitant to embrace the President pushing independent agencies. Also, it's not entirely clear to me that the FTC has the authority to follow these suggestions. They are all good suggestions and ideas, and I support the goals. I just worry that taking a shortcut by executive order via the FTC (under potentially dubious authority) could undermine the value of these moves.

    The moves regarding healthcare are also interesting and mostly good ideas:

  • Directs the Food and Drug Administration to work with states and tribes to safely import prescription drugs from Canada, pursuant to the Medicare Modernization Act of 2003.
  • Directs the Health and Human Services Administration (HHS) to increase support for generic and biosimilar drugs, which provide low-cost options for patients.
  • Directs HHS to issue a comprehensive plan within 45 days to combat high prescription drug prices and price gouging
  • Encourages the FTC to ban “pay for delay” and similar agreements by rule.
  • We've talked about much of this before as well, especially the ability to import drugs from Canada and the pure, unadulterated evil of the pay for delay scam. What's missing, though, is a recognition that the problem with every single one of the items listed above is really in the patent system beneath it. Every one of these issues wouldn't be an issue at all if we fixed our broken patent system and how it handled pharmaceutical patents. But, because doing that requires (1) Congress, and (2) an impossible fight that the Pharma lobbyists would kill immediately... we instead have to dance around the real problem with again, executive order-driven nudging.

    That's not to say patents are ignored in the executive order. There's a really nice bit in which it asks the DOJ and Commerce Department to "re-evaluate" its stance on allowing patents in standards:

    To avoid the potential for anticompetitive extension of market power beyond the scope of granted patents, and to protect standard-setting processes from abuse, the Attorney General and the Secretary of Commerce are encouraged to consider whether to revise their position on the intersection of the intellectual property and antitrust laws, including by considering whether to revise the Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments issued jointly by the Department of Justice, the United States Patent and Trademark Office, and the National Institute of Standards and Technology on December 19, 2019.

    There are some other items in the healthcare proposal that are beyond typical Techdirt scope, but certainly sound reasonable: such as more hospital transparency and limiting hospital mergers. Back in 2013, we wrote about how healthcare is a giant economic scam, mostly driven by the hospitals (everyone blames the insurance companies, who are complicit, but if you look at the details, it's often the hospitals themselves that are the real scams).

    More specific to tech, there are some new items regarding the FCC and the telco broadband space, which Karl will cover in a separate post. I will note that many of the ideas do seem reasonable -- but again, I worry about executive overreach regarding an independent agency, and a failure to address the actual issues.

    Regarding "big tech" the executive order pushes for greater scrutiny of mergers -- and, especially, acquisitions by the "big" companies. While many people in tech policy I know disagree with this take, I actually don't have a problem with it in concept. We should scrutinize carefully when very large companies buy smaller companies to see what the impact on competition and consumer welfare should be. What we should not do is automatically rule out all such mergers and acquisitions, because that would create a bunch of consequences that would actually be bad for innovation -- such as discouraging investment in startups or limiting acquisitions that actually are additive. But, conceptually, yes, we should scrutinize such mergers carefully. As expected, it also encourages the FTC to make rules barring restrictions on independent repair and DIY repair. Again, the FTC may be somewhat limited in what it can do, but this is a huge step forward for the important right to repair movement.

    There is also a part about rules on the collection of user data and how it's used. That's... potentially good and potentially bad depending on how it plays out. It asks the FTC to explore:

    unfair data collection and surveillance practices that may damage competition, consumer autonomy, and consumer privacy;

    In theory that's good. And there are many companies engaged in sketchy practices with data. But there are also lots of important, and useful uses of data. And I worry that an overly aggressive FTC could conflate the two. I'd much prefer working on proposals to unlock our data by providing more transparency and control to end users, so we don't have to trust companies that don't have our best interests in mind.

    There's also a bit about "unfair competition in major Internet marketplaces," which seems to be aimed specifically at Amazon selling its own branded products. To be honest, I've never really understood why this is a problem. A ton of retailers have done this going back basically forever. And, it's not clear that the supposed "data advantage" that Amazon has really exists or is meaningful.

    Overall, there really are a lot of good ideas in here. I just wish most of them were taken up by Congress, rather than being nudged through executive order.

    09 Jul 17:36

    Amid criticism, FDA narrows use of $56K Alzheimer’s drug, calls for probe [Updated]

    by Beth Mole
    Words and symbols adorn a large outdoor sign.

    Enlarge / The Food and Drug Administration headquarters in White Oak, Maryland. (credit: Getty | Congressional Quarterly)

    Update 7/9/2021, 2:35 pm ET: The Acting Commissioner of the Food and Drug Administration sent a letter to the Office of the Inspector General Friday calling for an independent review of the agency's controversial approval of the Alzheimer's drug Aduhelm.

    "I believe that it is critical that the events at issue be reviewed by an independent body such as the Office of the Inspector General in order to determine whether any interactions that occurred between Biogen and FDA review staff were inconsistent with FDA policies and procedures," Acting Commissioner Janet Woodcock wrote in the letter, which was addressed to acting Inspector General Christi Grimm.

    In explaining the call for the investigation, Woodcock cited the "significant attention" and concerns raised by the agency's decision to approve the drug. It is "inevitable" that some FDA decisions lead to controversy, she wrote, and "I have tremendous confidence in the integrity of the staff and leadership" involved in the decision. But, a review is necessary, she added, because the mounting concerns could "undermine the public's confidence in the FDA's decision."

    Read 13 remaining paragraphs | Comments

    08 Jul 23:37

    Elon Musk wants to dig a tunnel in Florida. What could go wrong?

    by Rebecca Heilweil
    A car driving into a tunnel.
    In Fort Lauderdale, city officials want to build a tunnel connecting the beach to the city’s downtown. | Ethan Miller/Getty Images

    Experts say that such a tunnel could be feasible.

    Fort Lauderdale is interested in using a tunnel to ease traffic on one of its busiest roads, and Elon Musk wants to build it. This week, Ford Lauderdale’s city government accepted a proposal from Musk’s urban tunnel-digging outfit, the Boring Company, to carve out an underground passageway that will deliver people from downtown to the beach via self-driving Teslas.

    “These cars would go from downtown Fort Lauderdale to the beach and back with a stop along Las Olas, which is our main restaurant-business boulevard,” Ben Sorensen, Fort Lauderdale’s city commissioner, told Recode. Now that the proposal has been accepted, other firms have 45 days to submit their own ideas for a tunnel.

    Fort Lauderdale is just the latest place where local government officials have explored the idea of underground traffic tunnels filled with Teslas. But as other cities have struggled to get their Boring Company tunnels off (or rather, under) the ground, the beginnings of a plan to build this infrastructure in Fort Lauderdale is already raising concerns that the Boring Company’s past problems could repeat themselves — not to mention the added challenge of overcoming Florida’s rising sea levels.

    Regardless, Fort Lauderdale and the Boring Company are confident in the tunnel plan, which has been percolating since the end of last year, Sorensen said. Government officials have already met with engineers, visited the Boring Company’s loop in Las Vegas, and even requested state support for the project’s expansion. At the same time, the mayor has become something of an Elon fan, praising Musk and the Boring company in his newsletter.

    Concerns that the project is ill-advised cropped up soon after it was announced. Some fear that the tunnel might be a flood risk, given the city’s proximity to the ocean and rising sea levels spurred by climate change. Another worry is that the Boring Company has promised lower costs and faster construction times, despite engineering and tunnel industry experts saying the firm doesn’t offer any particularly novel way of building tunnels. Others have suggested that greater investment into public transportation might be a better solution to the city’s traffic congestion problem.

    “It’s worth investigating whether that’s feasible from a structural and engineering perspective,” Lily Elefteriadou, the director of the University of Florida’s Transportation Institute, told Recode. “From a transportation systems perspective, it makes sense to look into alternatives to get people out of private vehicles and see if that might work.”

    Tunnels are expensive, Elefteriadou explained, and a dedicated lane or a rail line might do the trick, depending on the land, funding available, and expected ridership.

    If the tunnel plan does go through, experts told Recode that water issues, including those exacerbated by climate change, will impact what kinds of features engineers will need to consider.

    “The designers will look at what are all the loads and situations that could conceivably exist over that 100- to 150-year time period,” said Michael Mooney, a professor at the Colorado School of Mines who focuses on underground construction and tunnels. “They’ll look at rising sea level, they’ll look at what the design-hurricane event will be, and then they’ll design accordingly.”

    Water problems could impact how high a tunnel’s two ends are built, and the specifics of the tunnel’s water-pumping system, Mooney added.

    Of course, water is not unfamiliar territory to tunnel engineers, and engineers have waterproofed tunnels in the past. Consider a nearby example: the recently constructed Port of Miami Tunnel, an undersea tunnel the city built to connect two islands off the mainland. This project also had to take into account the risks of storm surge and other water challenges. With the Fort Lauderdale tunnel, engineers will have to consider the area’s soil conditions, including sandy soil and limestone, according to University of Central Florida civil engineering professor Luis Arboleda Monsalve.

    “We have done all kinds of tunnels in very, very difficult ground,” Monsalve said.

    But there are still potential unknowns. “We have a better idea of what can happen in the next 30 years. In 100 years, there are many more uncertainties,” Shimon Wdowinski, an earth and environment professor at Florida International University, told Recode. “As everybody knows, sea level is rising.”

    Fort Lauderdale is not the only city in Florida whose local government is being wooed by Musk’s company. Florida Gov. Ron DeSantis has already spoken with Musk, and the mayor of Miami, Francis Suarez, wants a road tunnel in his city too.

    But there’s still reason to be skeptical. Several of the Boring Company’s tunnel proposals never took off. One plan to build a tunnel connecting Chicago’s downtown Loop and its O’Hare Airport didn’t pan out, and the company also seems to have stalled its plans to build a loop tunnel between DC and Baltimore. Meanwhile, the tunnels the Boring Company has built have yet to meet the firm’s original expectations, and the company’s test tunnel in Los Angeles was a far cry from the futuristic designs the company originally proposed.

    Sorensen, the Fort Lauderdale city commissioner, told Recode that the city hoped to be able to transport 4,000 people on the loop and have cars run entirely autonomously. But in the Las Vegas tunnel, self-driving cars still haven’t arrived (the Teslas are driven by humans), and, due to fire regulations, the system is still struggling to boost the loop’s capacity to 4,000.

    Fort Lauderdale is still waiting to see if any other companies will offer their own proposals to build this tunnel, though none have expressed interest yet. Otherwise, it seems as though the city plans to move forward, despite the concerns.

    “It needs to be taken into account that for 30 years, it may work, but maybe afterward not,” Wdowinski said. “This is up to the decision-maker to decide.”

    08 Jul 19:40

    How big tech grew by acquiring small tech

    by Nathan Yau

    Big tech — Amazon, Apple, Google, and Facebook — got big and then got bigger with acquisitions of smaller companies. The Washington Post took a comprehensive look at all of the acquisitions over the years:

    They all followed a similar pattern. First, they became dominant in their original business, like e-commerce for Amazon and search for Google. Then they grew tentacles, making acquisitions in new sectors to add revenue streams and outflank competitors.

    Tags: acquisition, tech, Washington Post

    08 Jul 16:52

    Google Facing Yet Another Antitrust Lawsuit Over Its App Store Practices, Even Though Android Is Quite Permissive

    by Mike Masnick

    Another day, another antitrust lawsuit against Google. This one, filed by 36 states and Washington DC, says that the company's practices regarding its Android app store violate antitrust law. This is now the fourth antitrust lawsuit filed by various governments in the US against Google. There's the DOJ lawsuit, one from nine state AGs, another from 10 state AGs, and now this new one. I get that everyone wants to hate on the big tech companies these days, and they also want to throw a bunch of things at the wall, but would it really have been that difficult to go through all of this in one single lawsuit?

    As with the previous lawsuits, this one leaves me scratching my head. I kept expecting there to be some bombshell or some smoking gun. But, once again, this lawsuit seems to take things that were done for perfectly reasonable reasons and attack them as anti-competitive.

    The oddest thing, of course, is that of any "app store" out there, Android is the most permissive around. Apple's iOS is much more restrictive. You can't get apps onto an iPhone without first getting them approved by Apple. Ditto for other proprietary platforms like video game consoles. Google, on the other hand, allows users to sideload apps and also to install alternative app stores entirely. For example, Amazon has long had its own Android app store (and, notably, in the new version of Windows, users will be able to install Android apps on their desktop machines via Amazon's app store). That's a lot more open than most similarly situated platforms.

    The complaint makes a big deal about how Google "discourages" people from sideloading apps or using alternative app stores:

    Although Google leaves open the technical possibility for Android consumers to acquire some apps without using the Play Store, this can only be accomplished through a competing app store installed on the device (either through preloading by an OEM or through the user sideloading the store), or through sideloading of individual apps. Google takes various steps to discourage OEMs from directly competing or sponsoring any app store competition. Google makes the sideloading process unnecessarily cumbersome and impractical by adding superfluous, misleading, and discouraging security warnings and by deterring users by requiring them to grant permission multiple times for a single app installation (discussed in more detail in Sections I.C. and I.D. below). The effect of Google’s conduct is to practically eliminate competition in Android app distribution.

    But, uh, this kinda leaves out some of the details here -- which is that earlier, when Google was much more permissive about sideloading apps, there were lots of complaints about the dangers of sideloading and third party app stores. Indeed, some device makers used to refer to Android allowing sideloading as creating a "chaotic cesspool" of security problems and piracy.

    In response, Google did get more serious about making sure users really understood the risks and really wanted to install 3rd party apps. But, again, it still does allow this -- much more readily than others. And yes, it's true that this probably makes it more difficult for third party app stores to survive, but if Google didn't do this it would also be slammed left, right, and center by everyone for not "policing" its phones and allowing security risks and piracy to run rampant. It's a damned if you do, damned if you don't situation.

    I don't disagree that it would be nice if Google were more open to 3rd party app stores, and didn't necessarily make you jump through so many hoops, but is that seriously an antitrust violation? Even the market definition (the key to any antitrust case) is... weird. Obviously, how you define the market will show whether or not there's a monopoly -- and if you define the market as "the products that only this company makes" then of course that's a monopoly. But that's not really relevant for a question of whether or not there is anti-competitive behavior. But here, these states have come up with a market definition that is basically just Android. They're not even doing the "mobile operating system" market. Instead, they claim that the relevant market is specifically "the licensable mobile OS market" -- meaning that Apple iOS (which is not licensable from Apple) is excluded.

    The licensable mobile OS market also excludes OSs that are unsuitable for mobile devices, such as OSs for simple cell phones, “flip phones,” or feature phones, or for other electronic devices (such as laptop computers, desktop computers, and gaming consoles, e.g., Nintendo DS, Xbox, PlayStation) that are not mobile devices.

    If I'm reading this right, they're actually suggesting that if Google had decided not to license its OS, and not to let competing device manufacturers build their own competing phones, then they would have less of an antitrust case against Google. And that seems... weird? And kind of nonsensical.

    Maybe I'm missing something here, but it seems like Apple's control of iOS is a lot more strict, ditto for Nintendo, Microsoft with Xbox, and Sony with the PlayStation. Google's decision to license its OS and enable much wider competition, as well as allowing some sideloading and 3rd party app stores, seems a hell of a lot more competitive than all those other services -- and yet that's all being used against Google, but not the others?

    It also seems like this lawsuit may run into the same problem that resulted in various states' lawsuits against Facebook to get tossed: why now? Android has acted this way for years, and why are these state AGs suddenly deciding it's a problem?

    I'm all for having more competition at every level of the stack, but I'm confused as to how this is a legitimate antitrust claim.

    08 Jul 14:47

    I’ve Always Suspected “Cat Person” Was Based on My Life. Now I Know It Was.

    One night in December of 2017, I saw Call Me by Your Name for the second time, alone, at the Alamo Drafthouse in a mall in Downtown Brooklyn. When I emerged from the theater after lingering for a moment to let my tears dry, I checked my phone. I had dozens of text messages—some from close friends, but many from old co-workers, classmates, and people I hadn’t spoken to in years. Most of them contained a link to a New Yorker short story. I recognized the photo that accompanied the piece because I’d idly flipped past it in the magazine earlier that day and remembered being a bit grossed out by the image: a close-up of two pairs of lips.

    “Is this about you?” the text messages read. “Did you write this under a pen name? Did Charles?” My stomach dropped. Charles and I had broken up two years prior, and though we were still in touch on occasion, I’d distanced myself from the relationship. (I’ve chosen to use a pseudonym for him here.) Seeing his name in these messages was jarring. I shoved my phone in my pocket and made my way down the escalator and toward the A train. Once aboard, I clicked the link again and started reading.

    Kristen Roupenian’s “Cat Person” is a fictional story that follows its protagonist, Margot, a college sophomore, as she navigates a relationship with an older man named Robert. They meet when he flirts with her at the local theater where she works concessions—he orders Red Vines—and they text for a while before going on a date. Throughout their time together, Margot vacillates between feeling disgusted by him and wanting more. Eventually, when they sleep together, Margot finds herself repulsed, creating an imaginary boyfriend in her head to laugh about the awful sex with later. In the following weeks, as she attempts to ghost him, Robert sends Margot texts that become increasingly aggressive, culminating in an encounter at a campus bar that leads him to text her: “Whore.”

    “Cat Person” was published at the height of the #MeToo movement, at a time when many women were reassessing past relationships through a new lens, and it clearly resonated with readers. Roupenian’s story was the first work of short fiction to ever go viral; as the Guardian put it, “Cat Person” “sent the internet into meltdown.” Now it’s being made into a movie starring Nicholas Braun, who plays Cousin Greg on Succession. But for me, the experience of reading it was particularly uncanny. I remember that, as I scrolled, I had to sit down on the train instead of leaning against the door as usual because I needed the added stability.

    Some of the most pivotal scenes—the sexual encounter and the hostile text messages—were unfamiliar to me. But the similarities to my own life were eerie: The protagonist was a girl from my small hometown who lived in the dorms at my college and worked at the art house theater where I’d worked and dated a man in his 30s, as I had. I recognized the man in the story, too. His appearance (tall, slightly overweight, with a tattoo on his shoulder). His attire (rabbit fur hat, vintage coat). His home (fairy lights over the porch, a large board game collection, framed posters). It was a vivid description of Charles. But that felt impossible. Could it be a wild coincidence? Or did Roupenian, a person I’d never met, somehow know about me?

    I met Charles my senior year of high school at a burger restaurant in a strip mall. He was a server; I was a host. He was older than I was—I’d pegged him as in his late 20s. At the time, I was waiting to hear about my pending acceptance to the University of Michigan. Having recently returned to his home state after breaking off an engagement with a woman in Los Angeles, Charles was applying to work in the U of M biology labs.

    Among a cast of 20-to-40-year-olds that included an Iraq war veteran and a waiter who unrelentingly tried to convince me to play Dungeons & Dragons, Charles stood out. I watched him scroll through Instagram—this was 2012, and he was the oldest person I’d ever seen use the app—and laughed when he successfully convinced the manager to let him print a goofy nickname on his nametag. We talked about climate change, the board games we played instead of making small talk with our families, and my cat, which happened to look like his roommate’s.

    “Is this about you?” the text messages read, as the story was going viral. “Did you write this under a pen name?”

    He wrote the names of songs on receipt paper and handed them to me between his trips to deliver burgers to tables. I stuffed them in my apron, then took them out when I got home, creating a playlist that began with Real Estate’s “Beach Comber.” He drew me a map to his favorite hole-in-the-wall taco place on the back of a “build your own burger” sheet. I taped it to my bedroom wall between my friends’ senior photos and drove there with a classmate after our AP calculus test. I asked him to buy me vodka from Target. Later, drunk with my friends for one of the first few times in my life, I texted him. We made Vine accounts at the same time, and I started recording six-second snippets of my life and imagined him watching them.

    That spring, we went to see Baz Luhrmann’s The Great Gatsby at the multiplex. He didn’t have a car—for environmental reasons, he vowed to never own one—so I drove us there after our shift. We didn’t touch, but it was clearly a date. He started burning me CDs: Beach House, Panda Bear, Oasis. He borrowed Party Down on DVD for me from the library. Talking to Charles felt exciting, like a peek into my future. Finally, someone who cared about the things I was talking about. Finally, someone I could learn from.

    “How old are you?” I asked him after we kissed for the first time. His answer, a hesitant “33,” didn’t scare me. I felt empowered by my ability to attract a fully formed adult and enticed by the forbidden nature of our potential relationship. I smiled and kissed him again.

    Soon he got the lab job, left the restaurant, and moved into a house with a porch on Ann Arbor’s Old West Side, where, I learned, the cool grad students lived. At my college orientation, I imagined myself passing him on campus between classes, meeting up to share iced coffees on the steps of Angell Hall. By July, we were official.

    “I’m on antidepressants,” he told me one day, avoiding eye contact. No one had ever told me they were on antidepressants before. We walked to the river and ate snacks from Trader Joe’s. “I am never this happy,” he said.

    In August, I moved into a dorm with a friend from high school who didn’t approve of my relationship’s 15-year age gap. I rode the city bus to Charles’, where he read my essays and student newspaper op-eds while we drank Dark ’n’ Stormies. We painted the rooms of his house together. He picked out a bike for me, and we rode around town, falling in love. When he sent me a Craigslist post for a job at the local art house movie theater, I applied and was hired.

    On his way home from work, Charles would wait in the box office line to drop off baked goods for me. After my shifts, I biked straight to his house. I made plans to rent an apartment with some girls from my econ class the following year, but they told me they’d changed their minds when they found out about my older boyfriend.

    Every time I had to tell someone about Charles I got nervous—I assumed each potential new friendship would end the second they found out about us. Every few months we would ride the Amtrak to Chicago for a weekend in a city where no one would recognize us.

    Out of a series of board game nights Charles organized at a local brewery, we began making friends together. One of them, David, moved in with him. For the seven months he lived there, we felt like a family. When he moved away, Charles and I adopted two cats from the humane society—Mochi and Apricot. We gave them each one of our last names. “I’m growing up too fast because I fell in love with you,” I wrote in my journal. “It scares me that I want to be with you forever.”

    With Charles’ encouragement, I applied to a program to spend a semester studying in Detroit at the end of my sophomore year. Suddenly an hour away from Ann Arbor and unable to rely on Charles for constant guidance and validation, I began making friends my own age. When I returned, he accused me of all but forgetting he existed while I was gone. I couldn’t argue with him: I had finally found community, and I was happier than I’d been in years.

    Our breakup was drawn out over months. Finally, in the summer of 2015, we called it quits and started seeing other people. He seemed bruised but understood. In any case, we never cut each other off entirely. When I graduated college, he left a book, bike socks, and a card in a bag on my porch. Before I moved to New York, I stopped by to see the cats one last time.

    I wasn’t sure whether Roupenian would deny everything, or whether she’d answer me at all.

    About half of “Cat Person” is a sex scene. In it, Roupenian depicts a type of bad sex that is easy for readers to relate to: not explicitly harmful or abusive but toeing the line of consent and leaving Margot feeling repulsed afterward. This is where the story diverges completely from my reality. Aside from the fact that, like Margot, it was my first time not having to sneak around in suburban basements to hook up, the latter half of “Cat Person” does not mirror my relationship with Charles. In Roupenian’s story, Margot laughs when Robert asks if she’s had sex before. The first time Charles and I hooked up, he was surprised when I told him I never had. In “Cat Person,” Margot is turned off by Robert’s aggression and embarrassed by his vulnerability. Roupenian spends a good portion of the story describing just how disgusting of a person he is. Of course, I know nothing about how Charles was with other women; I can only speak for myself. With me, at least, he was careful, patient, and gentle—it was the first time someone asked if they could kiss me instead of just doing it.

    But so much of the central dynamic in the story rang true to me: Charles’ cryptic communication style; the way I had to work to impress him; the joke rapport we created between our cats early on—him sending a picture of his roommate’s cat captioned “watching u sleep,” and me responding with a picture of my family’s cat with a bird in its mouth captioned “brought u breakfast.” Roupenian even knew the location of our first date: the multiplex outside of town, Quality 16. In “Cat Person,” the characters didn’t touch during their first date, either.

    After I read the story, I sent Charles the link. At that point, we weren’t in regular communication, but we still texted occasionally. “It seems like we’ve been stalked,” I joked. He texted me as he was reading:

    “this is weird!”
    “it is very disparaging to the guy, am I a slimeball”

    I’d assured him that with me, he wasn’t. Eventually, he changed the subject. Later, I Googled Roupenian and discovered that she was getting her MFA in the University of Michigan’s English department; I was friendly with some grad students in her program and remember thinking that maybe one of them had found my relationship strange and mentioned it to her. Looking back, it’s hard to say why I never asked Charles whether he knew her. Maybe I didn’t really want to know. At that point, I was trying to avoid probing personal topics with him in order to distance myself. I was hoping not to encourage him to rely on me.

    Three years later, I found out Charles had died via an Instagram DM from his mom that I opened at midnight on a Friday. It was November 2020—five years since we broke up, and five months since we last texted, when he’d been furloughed from his job due to COVID and I’d posted on Instagram that I was collecting money for Black Lives Matter–related orgs. “Something aggressive [fist emoji] not milquetoast neoliberal,” he labeled his Venmo to me. I texted him the receipt.

    He passed away suddenly, his mom said. I spent that night lying awake and the next day in a trance. The following evening, I texted David—who had remained one of Charles’ closest friends—to ask if he’d heard from Charles’ family. When he said no, I called to break the news. (David is a pseudonym, too, at his request.) About an hour into a conversation full of attempts to articulate just how special Charles was, he brought up “Cat Person.” “He was always so upset that she brought you into it,” he said. I paused, taking in what this might mean. I’d spent the past three years trying to convince myself that it was just some crazy coincidence.

    “Did Charles know her?” I asked. Yes, David told me. He did.

    When I first got off the phone with David, I felt oddly giddy. In the midst of my grief, I realized for the first time that my suspicions had been true—I could finally say for sure that “Cat Person” was about me. As the night wore on, my chest tightened. Within hours, the strange thrill I’d felt was replaced by disgust, then anger. I imagined Roupenian scrolling through my social media accounts, gathering details about me. I felt invaded.

    By the time I went to bed, I was brainstorming ways of getting in contact with Roupenian. I wanted to yell at her. But when I tried to imagine what I actually wanted to say, I wasn’t sure.

    When asked in interviews what inspired “Cat Person,” Roupenian has said it came out of an experience she had in her mid-30s with a man she met online. But she’s also insisted, repeatedly, on its fictionality. “It’s not autobiographical; though many of the details and emotional notes come from life,” she told the New York Times. The story feels so intimate and naturalistic that it’s easy to see why Roupenian has wanted to draw a line here, especially given how quick many readers have been to assume that the plot is taken from her life.

    “Cat Person,” and the cultural reception to it, feels connected to the broader literary debate over “autofiction”—writing that, in its raw and confessional style, seems to blur the boundaries between the real and the invented. Susan Choi’s 2019 bestseller Trust Exercise was partly a coming-of-age story about a performing arts high school and partly a pointed commentary on the idea of autofiction itself: specifically, on the question of “who owns a story,” as Katy Waldman put it a New Yorker essay. In a recent New York Times Book Review essay titled “Our Autofiction Fixation,” novelist Jessica Winter writes about the confidence with which strangers assume that her fiction describes her own life. “The expectation that fiction is autobiographical is understandable for the simple reason that so much of it is,” she writes. But she adds: “There is something backhanded about using authors’ personal statements as a Captcha tool for verifying the emotional resonance of their work.” Female authors tend to attract these assumptions from readers with special frequency. It’s clear that Roupenian knows this firsthand.

    I felt angry that someone who knows what it’s like to watch your readers misconstrue fiction as autobiography had dragged others into that discomfort.

    I’ve wondered a lot about the line between fiction and nonfiction, and what license is actually bestowed by the act of labeling something as fiction. I’ve asked myself why Roupenian might have chosen not to change even a few key details about me and Charles—my workplace, my hometown, his appearance, the location of our first date. At times I’ve convinced myself that she wanted us to know it was about us. But then I remind myself that when she wrote “Cat Person,” she was still in her MFA program. No one knew her name. Submitting a story to the New Yorker was a long shot, and a piece of literary short fiction had never gone viral in this way.

    It wasn’t until six months after Charles’ death that I finally gained the courage to email Roupenian. I wasn’t sure whether she’d deny everything, or whether she’d be angry, or whether she’d answer me at all. From what I understood from David, she and Charles hadn’t kept in touch, so I assumed she didn’t know about his death. After my editor reached out first, letting her know about this essay, I wrote a brief message asking if she’d be willing to talk on the phone. She replied to say that she wanted to take some time to think and would reach out again soon. Then came a longer note.

    “Dear Alexis,” she began. “I’ve spent the past several days struggling with the question of how to balance what is right for me with what I owe you.”

    When I was living in Ann Arbor, I had an encounter with a man. I later learned, from social media, that this man previously had a much younger girlfriend. I also learned a handful of facts about her: that she worked in a movie theater, that she was from a town adjacent to Ann Arbor, and that she was an undergrad at the same school I attended as a grad student. Using those facts as a jumping-off point, I then wrote a story that was primarily a work of the imagination, but which also drew on my own personal experiences, both past and present. In retrospect, I was wrong not to go back and remove those biographical details, especially the name of the town. Not doing so was careless.

    She went on to emphasize that she’d never had access to any information about my personal life beyond that. She clarified that she didn’t think it was fair to characterize the character of Margot as fully based on me. But she continued:

    I can absolutely see why the inclusion of those details in the story would cause you significant pain and confusion, and I can’t tell you how sorry I am about that. I hope it goes without saying that was never my intention, and I will do what I can to rectify any harm it caused. I was not prepared for the amount of attention the story received, and I have not always known how to handle the consequences of it, both for myself and other people. … It has always been important for my own well-being to draw a bright line, in public, between my personal life and my fiction. This is a matter not only of privacy but of personal safety. When “Cat Person” came out, I was the target of an immense amount of anger on the part of male readers who felt that the character of Robert had been treated unfairly. I have always felt that my insistence that the story was entirely fiction, and that I was not accusing any real-life individual of behaving badly, was all that stood between me and an outpouring of not only rage but potentially violence.

    It took me a few days to fully process what she’d written. I appreciated that she was sorry. I could understand how unprepared and overwhelmed she felt by just how much attention “Cat Person” received. But I was also frustrated. I could sense in her email that she hoped I might feel guilty about potentially encouraging the misdirected rage of her male readers. And I was angry, still—that someone who knows so intensely about what it’s like to watch your readers misconstrue fiction as autobiography would have dragged others, without their knowledge, into that discomfort.

    More than anything, it shocked me to see that Roupenian also felt nervous. Reading her note, I realized for the first time that I wasn’t as helpless in all of this as I’d thought. I’d spent the past several months feeling, frankly, too scared—of her fame and her story’s dedicated fan base—to consider speaking publicly about my own experience. But it turned out she was struggling, too. (After she emailed, I reached out to her again to tell her that Charles had died, since I wanted to make sure she didn’t learn it from reading this essay; Roupenian asked to keep that phone conversation off the record.)

    We are all unreliable narrators. Sometimes, to my own disappointment, I find myself inclined to trust Roupenian over myself. Had Charles actually been pathetic and exploitative, and I simply hadn’t understood it because I, like Margot, was young and naïve? Had he become vengeful and possessive after we broke up, but I’d just blocked it out in order to move on with my life? The story is so confident and sure, helping the reader to see things Margot herself does not. In December, David told me that Charles kept his old iPhone even after he got a new one so that he could look back at his old messages with Kristen from time to time to see whether he had actually been an asshole. Sometimes it feels easier to believe the story that everyone knows than the one they don’t.

    I’m not sure how Roupenian gleaned so much information from social media alone, nor am I sure whether Charles told her anything about me, but she got a lot of things right. She captured the way Charles winced when made fun of, the way he couldn’t stand being laughed at. How sensitive he was. The way we both worried the other was ashamed of the relationship, and how we avoided places where I might run into classmates and ended up running into my TAs instead. She guessed correctly at the way I was intimidated by my colleagues at the Michigan Theater, afraid I wasn’t smart enough to express my opinions to them. She repeatedly mentioned the dining hall and dorms (things Charles and I pretended weren’t central to my life) in order to emphasize the age difference. Most importantly, she got that the power dynamic went both ways: Charles was my point of access to an entirely new world of culture and an escape from a life where I didn’t fit in, but with my youth—the way I had my whole life ahead of me—I held power over him, too.

    My relationship with Charles was full of shame brought on by people who assumed the worst—a predatory man asserting his power over an innocent girl. But those who knew Charles well knew how respectful and caring he could be. On a Zoom memorial following his death, half a dozen people around the country said something to the effect of “I was in a dark place, then Charles said, ‘Hey, come live with me,’ and it turned things around.” Despite his social anxieties and insecurities, the Charles I knew made space for people. He was most in his element when showing someone new around town, or patiently teaching a group how to play a board game, having studied the rules in advance.

    What’s difficult about having your relationship rewritten and memorialized in the most viral short story of all time is the sensation that millions of people now know that relationship as described by a stranger. Meanwhile, I’m alone with my memories of what really happened—just like any death leaves you burdened with the responsibility of holding onto the parts of a person that only you knew.

    08 Jul 14:31

    Everything feels more expensive because it is

    by Rani Molla
    An aerial view of a kitchen island covered with a variety of consumer goods and food. | Rani Molla/Vox

    Why are prices going up? Used cars, gas, and groceries seem more expensive because they are.

    You’re not imagining it — many items are more expensive than they used to be. Some by a little, others by a lot. The United States isn’t in runaway inflation territory right now, but we’re definitely seeing some unusually pricey consumer goods.

    If you haven’t noticed it in your day-to-day life, you’ve at least seen it in the headlines: From flights to lumber to chicken wings, prices are higher for many goods and services across the economy. Some people are pointing to these and other price increases as signs that worrisome inflation is on the horizon, arguing that the situation could soon rival what happened in the United States in the 1970s — a period of “stagflation” when the US saw high inflation coupled with slow economic growth and high unemployment.

    But many economists and policymakers, including the chair of the Federal Reserve, think it’s likely transitory and that the economy might just be running a little hot right now. They say it will likely cool down as some of the post-pandemic bottlenecks and imbalances work themselves out. It looks like it’s already starting to happen in lumber. It’s also worth noting that last year we saw deflation in some areas of the economy, meaning prices went down, and so it makes sense that they would rebound.

    Still, the inflation debate isn’t going to resolve itself anytime soon.

    So what’s happening right now? Consumer prices were up 5 percent from the previous year in May, according to the Bureau of Labor Statistics’ Consumer Price Index, which looks at prices for goods across the economy to get an idea of inflation. It’s a level of increase we haven’t seen since 2008, and one that we’ve only seen a handful of times since the early 1980s. Typically, the Fed targets a 2 percent inflation rate over the long term, though inflation has actually been running below that in recent years.

    Prices went up by 0.6 percent in May alone. It’s quite a break from recent history: In the years following the Great Recession, the question many economists have been asking themselves is why inflation was so low.

    What’s perhaps more interesting than the topline number, though, is what’s underneath it. Sometimes, major price increases or decreases in one specific area can sort of throw the overall picture out of whack. (That’s why you hear people talk about “core” inflation, meaning prices excluding food and energy, which can be volatile because of factors like weather and oil supply.) Recently, one area is causing a stir: used cars, whose price went up 7.3 percent in May, after going up 10 percent in April. Used car prices are now up nearly 30 percent since last year. If you take them out of the equation, the situation can look a little bit different.

    To be sure, used cars aren’t the only story. The prices of plenty of items have crept up over the past year. Gas prices are up significantly over the past year due to a variety of factors including higher oil prices, a shortage of truck drivers, and a big increase in demand as people start driving and flying again. Gas prices fell significantly at the start of the pandemic, too, which is part of what makes the current increase seem so eye-popping.

    Your overall life might be a little more expensive right now

    The price of the stuff we buy changes all the time for a variety of factors, from supply chain issues to our changing habits.

    The pandemic, of course, meant a disruption in supply chains and habits. All of a sudden, millions of Americans were stuck at home, hoarding toilet paper and clearing grocery store shelves. Items we might have once purchased at restaurants, we tried to recreate at home with ingredients from the supermarket. And it became increasingly important to give our homes, where we spent a disproportionate amount of our time, an update to make them more livable. Our demand led to shortages in everything from pasta to couches. Covid-19 wreaked havoc on the supply side as well, as the virus spread among employees at meat plants and garment factories alike.

    To look at what’s happened to prices for a number of goods, we assembled our own little shopping basket. For the most part, prices went up, according to consumer price data from NielsenIQ, which tracks US checkout prices at a wide variety of retailers, as well as supplementary data from the Bureau of Labor Statistics.

    After toilet paper became readily available and people stopped stockpiling it as much, its price only rose about 3 percent from last year. Staples like milk and bread rose just slightly, 1.6 percent and 1.3 percent, respectively.

    Meanwhile, some prices rose dramatically. As mentioned, used car prices are up nearly 30 percent, due to supply chain disruptions in the new car market, including a global shortage of semiconductor computer chips. Prices for some fruits, like strawberries and blueberries, are up 27 and 16 percent, respectively, as demand for the fruits surged during the pandemic and outpaced supply. Produce prices are always subject to high volatility since there are so many variables with planting and harvesting.

    The cost of kitchen and living room furniture, due to a mix of supply chain bottlenecks and demand to fix up our personal spaces during the pandemic, is up about 10 percent since last year. Dog treat prices are up 5 percent, perhaps as a result of increased demand from the large number of pet adoptions during lockdown. Takeout prices were up 6 percent.

    While the price changes of cheese varied widely by type (Brie down 6 percent, cheddar up 0.4 percent), overall the average unit price of cheese rose about 4 percent in the past year. That growth reflects the fact that many people bought more premium cheeses at home since they couldn’t get them out, according to NielsenIQ.

    There were a few notable exceptions where prices actually declined since last year. The average cost per unit of flour and yeast, the ingredients to make last year’s ubiquitous homemade bread, fell 1 percent and 4 percent respectively. That doesn’t necessarily mean they’re getting less expensive, but rather that people are more likely to wait for sales than they were in spring 2020, when, if people could find staples in stock, they’d buy them regardless of price. Similarly, the price of eggs went down 4 percent. Prices for hard seltzer, the unofficial summer drink of 2019, declined nearly 6 percent, perhaps reflecting the increased selection available, with everyone from Budweiser to Topo Chico getting in on the action.

    The price of many consumer goods grew substantially in the last year Rani Molla

    Lumber mania: An update

    One of the biggest price surge stories of the year thus far has been lumber. (Vox has a full explainer on it here.) The lumber industry struggled in the years following the Great Recession, and production slowed accordingly. When Covid-19 hit, many in the industry assumed that the situation was only about to get worse, so they dialed back production even more. In the case of many mills and yards, economic shutdowns wouldn’t let them work anyway.

    “They really dialed back, thinking that demand would fall, and the reality is that demand never slowed,” Dustin Jalbert, senior economist and lumber industry specialist at Fastmarkets RISI, told Vox in the spring.

    It turns out lots of people stuck at home had the same idea to undertake home renovation and remodeling projects. They built out decks and garages and offices and found ways to make the houses they were stuck in 24/7 more pleasant. Others went looking for new homes, snapping up preexisting ones and starting to build.

    The supply-demand imbalance threw much of the industry out of whack, and lumber prices soared. In the summer of 2019, 1,000 board feet of lumber (one board foot is 12x12x1 inches) out of a sawmill would have run somewhere in the $300 range, according to data from Fastmarket Random Lengths. In May, the same amount of wood was going for more than $1,500 at some points.

    Now prices have begun to come down, falling back below $1,000. It could be a sign that the supply chain is starting to balance itself out and that the demand side, in the face of high prices, has taken a breath that’s allowed some of the supply side to catch up.

    This is what some economists say is likely to happen across the economy as some of the post-pandemic kinks get worked out. The supply side will catch up with the demand side as supply chains normalize, and in some cases, pent-up demand will ease, too. “The prices that are driving that higher inflation are from categories that are being directly affected by the recovery from the pandemic and the reopening of the economy,” Federal Reserve Chair Jay Powell said at a press conference in June. He specifically invoked lumber: “The thought is that prices like that have moved up really quickly because of the shortages and bottlenecks and the like. They should stop going up and at some point, in some cases should actually go down. And we did see that in the case of lumber.”

    The big question mark right now is how long this will last

    There is no denying that some prices are rising at a quicker clip than they have in recent years; the big unknown right now is how long this will go on. The Fed and the White House are betting that the current level of inflation is transitory, meaning this is a temporary bump as the economy rebounds from the pandemic, and soon things will settle back down.

    In testimony before Congress in June, Powell laid out the factors contributing to recent inflation increases, including falling prices at the start of the pandemic, supply bottlenecks, the pass-through of oil and energy prices, and increased consumer spending accompanying reopening. “I will say that these effects have been larger than we expected, and they may turn out to be more persistent than we’ve expected, but the incoming data are very much consistent with the view that these are factors that will wane over time and then inflation will then move down toward our goals,” he said.

    The personal consumption expenditure (PCE) price index, which the Fed uses as its main gauge of inflation, ticked up slightly less in May than economists expected, which could be a signal that the pace of price increases is slowing. However, it’s too early to tell.

    The big fear among some economists is that the US will see a repeat of the 1970s, when the country saw a sustained period of high inflation that was only brought to an end when the Fed took harsh measures and pushed the economy into a recession in the early 1980s. If inflation takes off and jobs and wages don’t go with it, then everyday items can become prohibitively expensive for many people. In the ’70s, for example, beef became super pricey. Sustained inflation can also reduce the value of savings.

    Some more extreme corners even warn that the US could see runaway hyperinflation like what’s happened in places such as Argentina and Venezuela, where the value of their currencies has declined rapidly and it’s nearly impossible for people’s paychecks to keep up with skyrocketing prices.

    Amid those concerns, it’s important to remember that the Fed is paying attention to inflation. If the economy really doesn’t settle down, the Fed has tools to fight it, such as raising interest rates. Fed officials have already moved up their expected timeline for increasing interest rates to 2023 from 2024, though forecasts can always change.

    It’s understandable to worry about inflation — a scenario where prices go up and paychecks don’t isn’t one the country wants to see. But is it time to start hoarding gold under your mattress? Probably not. That post-pandemic vacation you wanted to take is probably going to run you a little more than you thought it would, at least for now. The good news is, compared to a year ago, it’s much safer in the US to take a vacation at all.

    08 Jul 12:00

    mRNA vaccine technology moves to flu: Moderna says trial has begun

    by Beth Mole
    mRNA vaccine technology moves to flu: Moderna says trial has begun

    Enlarge (credit: Getty | Tom Williams)

    Moderna has given out the first doses of an mRNA-based influenza vaccine to participants in an early-phase clinical trial, the company announced Wednesday.

    Moderna ultimately plans to test the vaccine on about 180 people in the Phase I/II randomized, stratified, observer-blind trial. The trial will look at safety, different doses, and immune responses.

    The vaccine, called mRNA-1010, is designed to target four lineages of influenza viruses that circulate seasonally each year, just like the current quadrivalent flu vaccines on the market. The four virus lineages are those identified by the World Health Organization as the ones to target for disease prevention each year—seasonal influenza type A lineages H1N1 and H3N2 as well as influenza type B lineages Yamagata and Victoria. If mRNA-1010 is shown to be effective against the yearly plague in later-stage trials, Moderna aims to eventually bundle it with three other mRNA-based vaccines to create a yearly one-stop shot.

    Read 14 remaining paragraphs | Comments

    08 Jul 12:00

    Fourth Circuit Appeals Court Says Right To Access Court Documents Begins When The Documents Are Filed

    by Tim Cushing

    Courthouse News Service has obtained a significant win in its lawsuit against court clerks in Virginia -- one that soundly affirms the First Amendment right to access court documents. This isn't the only place CNS is fighting for its First Amendment rights, but this decision affects everything in the Fourth Circuit, which covers Maryland, North Carolina, South Carolina, and Virginia.

    Here's the battle Courthouse News Service has been fighting on several fronts, assisted by several other news agencies and First Amendment activists.

    The right of access at the core of the legal slug fest, which included attempts by the clerks to hide evidence of delay, is a tradition that goes far back in time. When cases were filed in paper form, news reporters traditionally checked the new civil complaints at the clerk’s counter where they were usually gathered in a box or tray.

    That stack of new complaints regularly contained news about major legal disputes in the community covered by the court, ranging from financial wrongdoing to environmental disputes to accidents and disasters.

    The intake clerk placed new paper cases in the box when they crossed the counter — in other words, contemporaneously with their filing.

    That tradition was carried forward into the electronic age by federal courts and a long list of state courts in Hawaii, California, Nevada, Utah, Georgia, Alabama, New York and Connecticut.

    But a similar list of courts broke with tradition. They took advantage of the switch to e-filing and pushed the press and public behind clerical functions that, in St. Louis for example, took between a week and two weeks to complete. Those delayers include courts in Maine, Vermont, Oregon, North Carolina and Texas.

    In this particular case, court clerks in Norfolk and Prince William County (both Virginia) decided they no longer needed to provide prompt access to filed lawsuits, claiming the move to electronic filing justified delays that were sometimes measured in weeks. Courthouse News said this was ridiculous. Also, unconstitutional. The district court agreed. The clerks appealed, and now have established precedent [PDF] that forces them to speed up processing of filed lawsuits.

    Here's how things were going before CNS filed its lawsuit:

    [I]n May 2018, the City of Norfolk court made only 19% of the complaints available on the day of filing, and 22% of the complaints were not available until two or more court days after filing. Similarly, in July 2018, the Prince William County court only made 42.4% of the complaints available on the day of filing and 41.5% of the complaints were not available until two or more court days after filing.

    And here's what it looked like after its lawsuit was filed:

    [B]oth Clerks significantly improved access to documents in their courts without hiring any new employees or changing employee or court hours. By the end of November 2018, the Norfolk City court made 92.3% of newly filed civil complaints available on the day of filing and 100% of complaints available within one court day of filing. Similarly, for the last three months of the tracking period, the Prince William County court made at least 88.1% of the complaints available on the day of filing and approximately 96.5% of complaints were available within one day of filing.

    So much for the argument that the intricacies of modern day electronics made it impossible to provide same-day service. Given this new alacrity -- one apparently instigated by litigation -- the lower court said clerks must make newly-filed complaints available on the same day of filing. Minor deviations were acceptable "due to extraordinary circumstances," but the baseline was as close to "contemporaneous" as possible.

    The Clerks appealed. They raised several procedural arguments, but the Fourth Circuit doesn't like any of them. To begin with, the case certainly isn't moot, not without the clerks' offices not making a formal change in policy that instructs clerks to make filings available the same day they're filed.

    While the Clerks’ improvements in rates of access are commendable, absent the relief Courthouse News sought, “nothing bars [them] from reverting” to the allegedly unconstitutional rates of access in the future. Porter v. Clarke, 852 F.3d 358, 365 (4th Cir. 2017). The case is thus not moot.

    They also argued the district court had overstepped by meddling in a case involving city and county officials. Wrong again, says the court. No injunction was granted so the court isn't setting policy for local officials. Instead, this court -- like the court before it -- is handing down a declaratory judgment that sets the standard for constitutionality, which even state and local officials must follow.

    The clerks also argued that, while there is a presumption of access to court documents, this presumption doesn't override the clerks' right to take their time making documents available. According to the clerks, the First Amendment right of access doesn't attach until a judge takes action in a case. You could not be more wrong, says the Appeals Court.

    That argument misreads precedent — the analytical approach complements the experience and logic test without supplanting it. Of course, a First Amendment right of access exists as to some documents “submitted in conjunction with judicial proceedings that themselves would trigger the right to access.” Id.; see also In re Wash. Post Co., 807 F.2d 383, 390 (4th Cir. 1986). But that does not mean that the First Amendment right of access to a document never exists independent of and prior to a related judicial proceeding. Rather, the experience and logic test can and sometimes does independently furnish the basis for a First Amendment right of access to a judicial document or to judicial proceedings. See, e.g., In re United States, 707 F.3d 283 (applying the experience and logic test to § 2703(d) orders); Baltimore Sun Co v. Goetz, 886 F.2d 60 (4th Cir. 1989) (same, to search warrant affidavits). And as in a similar case recently decided by the Ninth Circuit, nothing in the record before us demonstrates that the tradition of access to complaints “conditions [that] access on judicial action.” Courthouse News Serv. v. Planet, 947 F.3d 581, 592 (9th Cir. 2020) (“Planet III”). In sum, the experience prong supports a First Amendment right of access to civil complaints, even before any judicial action in the case.

    The court holds that in this judicial district, the First Amendment attaches as soon as lawsuits are filed. Excessive delays in making them available is unconstitutional.

    The press and public enjoy a First Amendment right of access to newly filed civil complaints. This right requires courts to make newly filed civil complaints available as expeditiously as possible. After considering all of the evidence offered at trial, the district court found that the facts of this case demonstrate that the Clerks did not do so, and so violated the First Amendment.

    After months of being jerked around by clerks who obviously had the capability to make filings available nearly immediately, Courthouse News walks away with an affirmed win and some handy precedent that should make its other legal battles run a bit more smoothly.

    08 Jul 11:58

    Google is facing yet another major antitrust lawsuit

    by Sara Morrison
    New York Attorney General Letitia James stands next to the state seal while holding a binder.
    New York Attorney General Letitia James, who is co-leading a new antitrust lawsuit against Google. | Drew Angerer/Getty Images

    Dozens of attorneys general filed a suit accusing Google Play of anti-competitive practices.

    Editor’s note, September 6, 2023: Google and the states have agreed to settle their lawsuit. The terms were not immediately disclosed, but it does take one major antitrust lawsuit off Google’s plate the week before another one goes to trial. The original story, which was published July 7, 2021, continues below.

    Attorneys general from 36 states and one district are suing Google for alleged anti-competitive practices — this time, over its Google Play app store.

    The suit turns up the heat on Big Tech companies, which are also facing a growing pile of antitrust suits, fending off bipartisan antitrust legislation from the House of Representatives, and preparing for more intense scrutiny from the Federal Trade Commission now that it’s headed by antitrust expert and Big Tech critic Lina Khan.

    The new suit filed on Wednesday accuses Google of making it difficult for app developers to distribute Android apps anywhere besides its Google Play store, where they are subject to rules and fees that benefit Google. It also says Google has, or has tried, to make agreements with Android device manufacturers like Samsung and mobile network operators like Verizon to preload Google apps on their devices and to not open their own competing app stores. The suit alleges that Google also discourages Android device owners from using other app stores by showing them warning messages that say apps from those stores could contain malware and by forcing users to bypass confusing security messages when they try to download apps not from the Play store.

    These practices, the suit alleges, make it exceedingly difficult for companies to compete with the Play store and hurt consumers and companies alike — except, of course, Google.

    “Once again, we are seeing Google use its dominance to illegally quash competition and profit to the tune of billions,” New York Attorney General Letitia James said in a statement. “Through its illegal conduct, the company has ensured that hundreds of millions of Android users turn to Google, and only Google, for the millions of applications they may choose to download to their phones and tablets. Worse yet, Google is squeezing the lifeblood out of millions of small businesses that are only seeking to compete. We are filing this lawsuit to end Google’s illegal monopoly power and finally give voice to millions of consumers and business owners.”

    James and the attorneys general of North Carolina, Tennessee, and Utah are the co-leads on the case, which is joined by 32 other states and Washington, DC.

    The suit expresses complaints similar to those that have been lobbed against Apple’s App Store, which is being investigated by European regulators and was the subject of a still-undecided lawsuit from Epic Games. Developers must go through the App Store and agree to its terms of service to put their apps on Apple’s mobile devices, and they must also give Apple a considerable cut of subscription fees and in-app purchases. Google has avoided some of this scrutiny because it is possible to download certain apps on Android devices without going through Google Play. Now it seems that most of the attorneys general in the US are trying to make the case that it’s not good enough.

    “It’s strange that a group of state attorneys general chose to file a lawsuit attacking a system that provides more openness and choice than others,” Google’s senior director of public policy Wilson White said in a blog post addressing the suit. “This complaint mimics a similarly meritless lawsuit filed by the large app developer Epic Games, which has benefitted from Android’s openness by distributing its Fortnite app outside of Google Play.”

    Google’s attorneys will be very busy for the foreseeable future. The company was sued in 2020 by 38 state attorneys general (co-led by James) over anti-competitive practices in its search results and search ads; the Department of Justice had filed a similar suit that year as well. Ten state attorneys general also filed an anti-competition lawsuit last year over Google’s ad tech practices.

    Those lawsuits are winding their way through the courts, but there is a possible bright spot for Google: Antitrust complaints against fellow tech giant Facebook filed by 48 state attorneys general (co-led by — you guessed it — James) and the FTC were dismissed at the end of June, with a judge saying that the attorneys generals’ complaint came too late and that the FTC’s didn’t establish that Facebook was a monopoly. The FTC can refile an amended complaint within 30 days.

    But even if this complaint ends the same way the attorneys generals’ complaint against Facebook did, Google will not be out of the woods. Many legislators and regulators are itching to take on Big Tech over antitrust concerns. Sen. Amy Klobuchar (D-MN), who has made antitrust enforcement and breaking up Big Tech a focus, issued a statement on Wednesday evening applauding the latest lawsuit and warning that antitrust actions wouldn’t stop there.

    “I commend these Attorneys General for taking action,” she said. “The case for sweeping antitrust reform is clear, and I will continue to fight in Washington to reinvigorate competition policy so our economy can thrive and consumers can get the fair treatment they deserve.”

    07 Jul 20:30

    The Strongest

    by Reza
    07 Jul 16:53

    Biden Executive Order Will Try To Address Some 'Right To Repair' Harms

    by Karl Bode

    Back in 2015, frustration at John Deere's ham-fisted repair restrictions and draconian tractor DRM helped birth a grassroots tech movement dubbed "right to repair." The company's crackdown on "unauthorized repairs" turned countless ordinary citizens into technology policy activists, after onerous restrictions not only significantly drove up repair costs, but forced owners to often haul their equipment hundreds or thousands of miles to an authorized repair location.

    John Deere's multi-year promise to do a better job providing access to tools, documentation, and repair options simply never materialized. And of course John Deere is just one of numerous companies engaged in this kind of behavior across numerous sectors, driving major public support for proposed legislation in more than a dozen states that would put a major dent in technology repair monopolies.

    In a small win for farmers and right to repair advocates, Biden is apparently planning to include some right to repair mandates in an upcoming executive order on competition. The order itself will urge the FTC to craft tighter rules to address the problem:

    "U.S. President Joe Biden wants the Federal Trade Commission to limit the ability of farm equipment manufacturers to restrict tractor owners from using independent repair shops or complete some repairs on their own, a source briefed on the matter told Reuters Tuesday. Biden's planned executive order on competition, expected to be released in the coming days, will encourage the FTC to address the issue, the source said. Some tractor manufacturers like Deere & Co use proprietary repair tools and software to prevent third parties from performing some repairs. Deere and the FTC did not immediately comment.

    The problem is that the FTC's rule creation and enforcement authority is arguably narrow under the FTC Act (not to mention limited by funding and staffing constraints). Most of the agency's enforcement authority rests on whether something is clearly "unfair and deceptive." But most repair monopolies, like Apple, obfuscate their greed by insisting onerous repair restrictions are necessary to protect consumer safety and security. Ideally you'd prefer clear and well crafted state and federal laws, but companies like Apple have worked overtime to insist such legislation would also harm the public.

    In 2017, Apple insisted that passing a right to repair law in Nebraska would turn the state into a "mecca for hackers." More recently, the auto industry tried to claim that expanding Massachusetts' existing consumer tech law, to make sure that independent garages could access tools and diagnostic gear, would result in a "boom in sexual predators." Sony, Microsoft, and others eager to monopolize repair options for their game consoles can routinely be found making the same or similar arguments about how better consumer protection would create a parade of unforeseen horribles.

    But a recent bipartisan FTC report found that the majority of the claims coming from companies like Apple were false (the company bullies independent repair shop owners to protect revenues, not out of some broad altruism). The report went on to note that stricter state and federal laws and tougher antitrust enforcement would go a long way toward addressing this kind of behavior. In other words, even the FTC acknowledges it's going to take more than just an EO punting the problem to the FTC if right to repair reform is to be taken seriously.

    06 Jul 19:48

    “Broadcom is a monopolist”: FTC orders chipmaker to stop illegal tactics

    by Jon Brodkin
    A Broadcom sign outside one of its offices.

    Enlarge / A sign in front of a Broadcom office on June 03, 2021, in San Jose, California. (credit: Getty Images | Justin Sullivan )

    The Federal Trade Commission on Friday said it charged Broadcom "with illegally monopolizing markets for semiconductor components used to deliver television and broadband Internet services" by preventing customers from purchasing from other vendors. The FTC simultaneously announced that it reached a settlement with Broadcom that requires the company to "stop requiring its customers to source components from Broadcom on an exclusive or near-exclusive basis."

    The FTC said that "Broadcom is a monopolist in the sale of three types of semiconductor components, or chips, used in devices that deliver television and broadband Internet services" and that "Broadcom illegally maintained its power in the three monopolized markets by entering long-term agreements with both OEMs and service providers that prevented these customers from purchasing chips from Broadcom's competitors." The contracts required customers to purchase and use "Broadcom's chips on an exclusive or near-exclusive basis," the FTC said. "Broadcom entered these exclusivity and loyalty agreements with at least ten OEMs, including those with the most extensive engineering and design capabilities and the strongest ties to service providers."

    Broadcom imposed similar contract requirements on TV and broadband providers, the FTC said. "By entering exclusivity and loyalty agreements with key customers at two levels of the supply chain [device makers and service providers], Broadcom created insurmountable barriers for companies trying to compete with Broadcom," the FTC said. The service providers that use devices with Broadcom chips include AT&T, Charter, Comcast, Dish, and Verizon, the FTC said.

    Read 13 remaining paragraphs | Comments

    06 Jul 17:41

    Law Enforcement Officer Openly Admits He's Playing Copyrighted Music To Prevent Citizen's Recording From Being Uploaded To YouTube

    by Tim Cushing

    Law enforcement officers are no longer pretending they're such big fans of recorded music they can't help but start playing their favorite tracks while interacting with citizens who are recording them.

    Earlier this year, police accountability activists noticed a new trend: officers were playing tracks by IP big hitters like Taylor Swift and the Beatles when being filmed, apparently in hopes of triggering copyright strikes that would prevent the videos from being uploaded, if not shut down these activists' accounts completely.

    The officers never admitted this was the reason for the spontaneous tune playing. At least not until now. Sergeant D. Shelby of the Alameda County (CA) Sheriff's Department started playing a track by Taylor Swift while being recorded by members of the Anti Police-Terror Project. And he admitted this was exactly why he was playing this track.

    Here's a description of what can be observed in the embedded video below, courtesy of Zoe Schiffer and Adi Robertson of The Verge.

    A confrontation Tuesday between a police sergeant and member of the public didn’t start out unusually. James Burch, policy director of the Anti Police-Terror Project (APTP), was standing outside the Alameda Courthouse in Oakland, California when an officer approached him and asked him to move a banner. As the two argued, the sergeant noticed he was being filmed. Then, he pulled out his phone and started playing “Blank Space” by Taylor Swift — in an apparent play to exploit copyright takedowns and keep the video off social media.

    Here's the recording:

    As you can see, this doesn't always work. The video -- with Taylor Swift's song audible in the background -- is still live on YouTube. That this one snuck past the copyright protection algorithms isn't necessarily a sign the system being reverse-engineered by cops scared of accountability doesn't work. It probably does. But YouTube has gotten a little better at handling DMCA takedown requests and has made some efforts to respect fair use of copyrighted material.

    But if sixty-percent of the time it works every time, it will be enough for garbage law enforcement officers like Sergeant Shelby. This is an officer who confidently told activists the sole reason he was playing music was to keep the public from witnessing his encounter with police accountability activists.

    Unfortunately for Sergeant Shelby, none of this worked. Not only did the video make its way to YouTube intact, he's now under investigation for being a fuckhead (paraphrasing here).

    An Alameda County sheriff's sergeant who played Taylor Swift on the courthouse steps in Oakland will be investigated by higher-ups because it appears as though he was trying to avoid having his interactions recorded and uploaded to social media platforms.

    Sgt. Ray Kelly, a department spokesman, said the actions of the sergeant, identified on the video as Sgt. Shelby, "is not something we condone or approve. We have a code of conduct all officers must follow," adding that the matter will be sent to Internal Affairs.

    According to Ray Kelly, the sergeant was also instructed to stop doing this while being filmed. We'll see if that works. It seems the best way to keep Sgt. Shelby from doing this again would be to can him and let him see if his zero personal accountability attitude will fly in the private sector. At the very least, the department should give him an unpaid vacation and a demotion. He knew what he was doing and he was so sure it would work that he said it out loud while on camera.

    06 Jul 14:57

    Meet the Switch Pro: $350 “OLED Model” launches on October 8

    by Kyle Orland
    • Welcome to the family. [credit: Nintendo ]

    After months of rumors and reports of a coming "Switch Pro," Nintendo has finally and officially revealed the upgraded version of its core Switch hardware. The "OLED Model" as Nintendo is calling it, will be available October 8 for an MSRP of $349.99.

    As the name implies, the most immediately noticeable improvement is in the screen, which uses pricier OLED technology instead of the more common standard LCD found in previous Switch models. This should provide deeper blacks, better color display, and less motion blurring than existing Switch systems, if existing OLED TVs are anything to go by.

    The OLED Model also expands the Switch's screen to 7", up from the 6.2" of the original Switch and 5.5" of the Switch Lite. This is accomplished without substantially increasing the size of the standard Switch unit itself; the OLED Model is just 0.1" wider than the original Switch, with the same height and depth. The increase in screen real estate is thanks to a reduction in the space used for the black bezel around the tablet screen.

    Read 5 remaining paragraphs | Comments

    03 Jul 22:30

    Elvis Costello Doesn't Care That A Pop Star Copied His Riffs; Says Every Musician Does That

    by Mike Masnick

    Is there any cooler musician than Elvis Costello? Honestly, one of the more annoying things about writing about the ins-and-outs of copyright law and creativity is realizing just how many of my artistic (music, filmmaking, writing, etc.) heroes turns out to have absolutely dreadful opinions about creativity and inspiration, often ignoring how they got to where they got, and instead focusing on pulling up the ladder behind them and squeezing as much cash as possible out of others. So I'm always concerned when I learn about musician I like opining on these issues -- especially over the last few years. You had the Marvin Gaye Estate cash in on a pop song that didn't copy any Gaye song, but just had a similar "feel." And that opened the doors to a whole bunch of similar lawsuits of aging rockers (or their estates) demanding money from newer artists.

    But Elvis Costello apparently has decided to take the much more sane, much more creative, and much more supportive route. A few different artists have started whining about a new album by Olivia Rodrigo. It started with Courtney Love complaining about the promo artwork on Rodrigo's new album being somewhat similar to Hole's album "Live Through This."

    To be fair, Love didn't get that upset, admitting "It happens all the time to me," but she did call it "stealing" and saying that "not asking permission is rude" and "bad form." I don't think it's any of those things. At most it seems like an homage. It might also be kind of an accident. The two sets of images are not really that close. And this is disappointing to see from Love, who twenty years ago famously wrote up one of the greatest screeds mocking record labels and the RIAA for their reaction to the internet.

    But, then someone noticed that Rodrigo's music also seemed to have homages in it. Billy Edwards said that her song "Brutal" seemed to be a "direct lift" from Elvis Costello's "Pump it Up." Listening to one after the other, you can definitely hear the similarities in the guitar riff, even though the songs themselves are extremely different.

    But... rather than freak out about it, Elvis Costello stepped in on Twitter to make it clear that (1) he's fine with it, and (2) this is how music works. Indeed, he points out that it's how he wrote some of his own songs as well -- "you take the broken pieces of another thrill and make a brand new toy."

    In fact, with the hashtags on that tweet, Costello notes that Pump It Up is itself a kind of remix of Bob Dylan's famous Subterranean Homesick Blues, which itself was inspired by Chuck Berry's Too Much Monkey Business.

    As Costello rightly notes, this is how music works. Artists build on ideas of what's come before. It's homage, and how creativity works. You take ideas and inspiration from those who came before, and then you make your own thing out of it. And, in the long run, everyone does benefit. New fans learn the new songs -- and as they get deeper into it it also helps them rediscover the pieces on which it was built as well. Only foolish people think that creativity springs forth disconnected from all else -- or that every single inspiration must get a piece of whatever successful ideas newer artists come up with.

    So, kudos to Elvis Costello for being quite clear in recognizing the nature of creativity, inspiration, and homage.

    02 Jul 15:53

    Scan Your LEGO With This App to Figure Out What to Build

    by Rachel Fairbank

    LEGOs are all about the possible: When handed a full box, what can you build? I spent a good chunk of my childhood rummaging through our LEGO collection at home, building all sorts of gadgets and contraptions. My older brother, when he wasn’t beating me up, would sometimes join in, and we’d spend hours building…

    Read more...

    02 Jul 14:26

    LA Court Abusing Copyright Law To Take Down (Unauthorized) Recording Of Britney Spears Hearing

    by Mike Masnick

    First up, let me be clear: if a courthouse makes it clear that no recording is allowed of a hearing you should not record it. I do think that those policies -- which are quite common in many courthouses -- are bad policy. I think recordings of hearings should be more widely available. But defying court rules is a very, very bad idea. As you may have heard, last week Britney Spears gave an impassioned plea to a court to end a conservatorship that allows her father to more or less control her life. The speech was, apparently, ineffective as the judge denied the request (though the fallout from this mess continues to spiral).

    Soon after reports of the speech came out, a recording of the hearing showed up on YouTube -- in violation of the court's rules. If you go to the link now, it says the recording was taken down due to "a copyright claim by Superior Court of California, County of Los Angeles" (takedown first spotted by the Twitter account @beka_valentine).

    Also, the court has announced that it's shutting down its remote audio program because someone recorded the hearing:

    “Effective June 28, the Court will no longer offer the Remote Audio Attendance Program (RAAP) to listen remotely to courtroom proceedings,” read the announcement, which also detailed the rolling back of other COVID-19 protocols. “The Court implemented this temporary program during the pandemic recognizing there may be abuses of the Court’s orders prohibiting recording, filming, and distribution of proceedings. Widespread breaches by the public in a recent court proceeding highlighted the need to return to in person, open courtroom proceedings, which is a welcome development.”

    As that Hollywood Reporter article notes, California courts have rules against recording, and you can face a variety of legal consequences for disobeying:

    Under California state and local court rules, no recordings of court hearings are allowed (including by members of the press) without advance permission from the judge in the form of a written order. According to the 2019 California Rules of Court, “Any violation of this rule or an order made under this rule is an unlawful interference with the proceedings of the court and may be the basis for an order terminating media coverage, a citation for contempt of court, or an order imposing monetary or other sanctions as provided by law.”

    When asked what is the court’s general policy is on taking action if a proceeding is recorded without permission, L.A. County Superior Court Communications Director Ann E. Donlan said only: “Parties who publish unauthorized recordings of court proceedings in violation of a court order are subject to sanctions and other potential liability pursuant to California Code of Civil Procedure section 1209 and other applicable law.”

    But... notice what is not included in the list of potential liabilities? Copyright. That's because there is no legitimate copyright claim by the courts in these recordings. First, as a government entity, it's difficult to think that they can make a legitimate copyright claim. While, technically, the US Copyright Act's prohibition on the government claiming copyright on works it creates only applies to the federal government, other courts have interpreted the prohibition to apply more broadly to other governments as well.

    On top of that, it's hard to argue that either there is a legitimate copyright here or that if there were one, that the court itself could claim it. The speech was by Britney Spears, not the court. On top of that -- even with the prohibition on recording -- in the copyright context, there would be a strong fair use defense.

    And so I understand why the court doesn't want the recording up there. And I agree that whoever recorded it likely broke the law and could face significant legal liability (if they were tracked down). But, that does not mean that the court can then step in and falsely claim copyright to take the video down. That's copyfraud and abuse of copyright. Just because it gets to the ends that may feel more legit doesn't mean you just get to magically invoke a copyright in a work that you have no legitimate copyright over.

    02 Jul 11:19

    Georgia Supreme Court Overturns Computer Crime Conviction For Man Who Copied Himself On Emails Sent To His Boss

    by Tim Cushing

    It's not just the CFAA that can be abused. This law -- recently trimmed a bit by the US Supreme Court -- has been abused for years to go after web scrapers, researchers, and information-wants-to-be-free activists. The recent ruling does narrow the scope of that law a bit, but the CFAA still has the potential to do serious damage when wielded carelessly or vengefully.

    The state of Georgia has its own set of computer crime laws and they're just as capable of being interpreted by prosecutors to criminalize acts that shouldn't be criminal offenses. Fortunately, a state court has made a sensible reading of the law to overturn a conviction for computer trespass -- one that saw a former Norcross (GA) city employee hit with felony charges. (h/t Andrew Fleischman)

    Jereno Kinslow was a city IT employee who had some problems with his new boss, Greg Cothran. Cothran criticized Kinslow's work performance, leading to a "loud outburst" from Kinslow. This apparently made Cothran concerned Kinslow might sabotage the city's network. Certain "safety measures" were put in place and Kinslow was eventually fired.

    Before Kinslow was let go, he utilized his administrator-level access to forward copies of emails sent to Cothran to his own personal email account. This was discovered by Cothran months later when he received a bounce notification specifying Kinslow's email account. This alleged "criminal trespass" formed the basis for charges that resulted in Kinslow being convicted of a felony and sentenced to ten years of probation.

    Kinslow challenged his conviction under this statute, claiming prosecutors did not present evidence that he had actually violated the law. The Georgia Supreme Court agrees [PDF] with Kinslow.

    OCGA § 16-9-93 (b)(2) defines the offense of computer trespass, in relevant part, as “us[ing] a computer or computer network with knowledge that such use is without authority and with the intention of . . . [o]bstructing, interrupting, or in any way interfering with the use of a computer program or data.” Kinslow was charged with committing computer trespass by “us[ing] a computer network with knowledge that such use was without authority and with the intention of obstructing and interfering with data from a computer, by copying Greg Cothran’s e-mails and causing them to be forwarded to his own private e-mail account.”

    The State thus was required to prove that Kinslow used a computer network knowingly without authority with the intention of obstructing or interfering with the use of data.We conclude that the evidence presented at trial was insufficient to prove that Kinslow’s use was done with the intention of obstructing or interfering with the use of data.

    The court says the facts don't fit the charged crime. There was no "obstruction" of data when Kinslow intercepted copies of Cothran's emails.

    Contrary to the State’s suggestion, the State presented no evidence that Kinslow’s e-mail forwarding scheme “blocked” or even “hindered” the flow of data in the form of e-mails to Cothran, who continued to receive those e-mails intended for him. Rather, the evidence showed only that Kinslow’s actions created an additional flow of data to another account.

    There you have it: copying is not theft obstruction.

    But wait, said the state, maybe it's an [re-reads statute]... um… "interruption?"

    Nope, says the court:

    “Interrupt” carries a similar definition of stopping or hindering, although “interrupt” often denotes a more temporary stoppage than “obstruct,” such as “to make a break in the continuity of.” Again, the State presented no evidence that Kinslow’s actions hindered the flow of e-mails to Cothran, either permanently or temporarily.

    Making copies also doesn't "interfere" with the flow of data, the court decides. The flow of data was so unobstructed, uninterrupted, and un-interfered with that Kinslow's supervisor didn't even know it was happening until one of the emails bounced.

    It's a short, solid ruling that forces the state to accept the fact that words have meanings, and those meanings cannot be distended to encompass the actions seen here.

    The dissent, however, thinks the court should have broadened the law to encompass all sorts of innocuous behavior by using the very loosest definitions of the word "interfere."

    Webster’s New Twentieth Century Dictionary (2d ed. 1983); “to interpose in a way that hinders or impedes: come into collision or be in opposition . . . to enter into or take a part in the concerns of others,” Webster’s Ninth New Collegiate Dictionary (9th ed. 1985); and “to come between so as to be a hindrance or an obstacle . . . to intervene or intrude in the affairs of others; meddle.” The American Heritage Dictionary of the English Language (3d ed. 1992). Black’s Law Dictionary (11th ed. 2019) primarily defines “interfere” as “[t]he act or process of obstructing normal operations or intervening or meddling in the affairs of others.”

    So, under these definitions, shoulder-surfing someone else's Facebook account would be a criminal act. Sure, probably no one would attempt to criminally charge anyone for doing this, but that's the expansive reading the Chief Justice of this court thinks is correct.

    This is a good ruling that clearly delineates what is or isn't covered by this computer crime law. And while Kinslow's actions may have been cheap, dishonest, and all-around lousy, they weren't criminal.

    02 Jul 10:21

    Former Trump Aide Launches Twitter Clone, That Seems To Yank A Ton Of Data Right Out Of Twitter; Already Has First Content Moderation Crisis

    by Mike Masnick

    Just as more news of what Trump wanted from Parler breaks, comes the news that his somewhat infamous former aide, Jason Miller, has launched a social media site called GETTR. It should be noted that through all of the rumors about Trump starting his own social network, it was usually Jason Miller who was claiming that it was on the way.

    Apparently, though, Miller stepped down from his role as Trump spokesperson to run GETTR -- and there are reports claiming that the originator of GETTR is someone trying to build "an important link between China and the West" with GETTR and a series of related apps.

    Separately, a Bloomberg White House reporter says Trump isn't planning on joining GETTR and is still planning yet another social network. So... we'll see.

    Of course, like every single social media site, while this one claims it's all about free speech, its terms of service make it clear it can kick you off the platform for any reason whatsoever:

    GETTR holds freedom of speech as its core value and does not wish to censor your opinions. Nonetheless, GETTR may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your UGC, and GETTR may, in its sole discretion, reject, delete, move, re-format, remove, or refuse to post or otherwise make use of UGC without notice or any liability to you or any third-party in connection with our operation of UGC venues in an appropriate manner, such as to enhance accessibility of UGC, address copyright infringement, and protect Users from harmful UGC. Without limitation, we may, but do not commit to, do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, pornographic, violent, harassing, threatening, abusive, illegal, or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms. For example, this may include content identified as personal bullying, sexual abuse of a child, attacking any religion or race, or content containing video or depictions of beheadings. Such UGC submitted by you or others need not be maintained on the Service by us for any period of time, and you will not have the right, once submitted, to access, archive, maintain, change, remove, or otherwise use such UGC on the Service or elsewhere, except that certain users may have certain additional rights as provided for in the Privacy Policy.

    I like how they take phrases directly from Section 230 and insert it there. Though it's also amusing that they add "inappropriate" to "otherwise objectionable," seeing as Trumpworld has been trying to delete "otherwise objectionable" from 230 entirely, and limiting 230 to just a specific list of "bad" stuff. Yet, GETTR seems to be claiming even broader rights to moderate.

    And, not surprisingly, the company is already, on its first day, dealing with some moderation issues as it appears that people trolling the site are flooding it with junk:

    It turns out that every social media site, so as not to be filled with garbage, has to do some moderation. Though it'll be fun to square the views of people who insist that social media sites shouldn't do any such moderation with the need to clear out the "lewd anime pics and the "pig poop balls" meme" from the #QAnon tag.

    But there are some other concerns as well. People are noticing that not only does GETTR look remarkably similar to Twitter (with a slightly larger character limit -- 777 characters), but that it seems to be grabbing a bunch of data directly from Twitter. Indeed, in what appears like a move to "boost" user numbers, reports say that if you use your own Twitter account name, GETTR will "import" all your followers -- apparently by creating fake ghost accounts for all of those accounts.

    GETTR’s app also claims to offer new users the ability to “import copies of your content from Twitter to GETTR.” And evidence on the site indicates that the new platform is also allowing users to import their actual Twitter followers — who somehow end up with GETTR accounts of their own.

    For example, Republican Senate candidate Sean Parnell in Pennsylvania, had over 175,000 followers on GETTR as of Thursday afternoon, despite only joining the platform Thursday. His follower count on GETTR is identical to his follower count on Twitter.

    The same goes for Murtaugh, Trump’s former 2020 communications director, who had amassed over 220,000 followers on both GETTR and Twitter as of Thursday afternoon.

    “Tweets are up to the point you join, it won’t continuously suck them in. The idea is we want people to move from Twitter to Gettr,” said the person involved with the app. The person added that the app does not harvest the users current Twitter followers for the app, and again noted it is in Beta.

    I do wonder how Twitter will feel about that. Of course, to some extent, this is somewhat like the vision Twitter has for Bluesky, but that hasn't been implemented yet. And just pulling out all of someone else's data raises... quite a few questions. It does seem worth mentioning that the ACCESS bill that was introduced in Congress recently would require Twitter and others to allow such exporting of data to other services.

    But GETTR seems to be going, well, to a fairly extreme level. To get images from Twitter... it's hotlinking images DIRECTLY FROM TWITTER. In other words, it's not grabbing those images, it's just displaying them as hosted by Twitter. That's... bold. In some ways it's just reskinning Twitter.

    I don't necessarily think this is a bad thing. As I've discussed for years, being able to let users snarf their own data out of one service and into another is a good thing for competition. But... it can also raise a bunch of other questions regarding privacy, data control, possibly copyright, and (under the decision in the Facebook/Power case), possible CFAA violations. That is to say, I hope GETTR has some good lawyers lined up. The fact that they apparently fucked up their DMCA registration doesn't bode well on that front.

    Anyway, I guess we're now going to see if GETTR gets to speed run the content moderation learning curve the same way Parler did -- and how it deals with content moderation and (better yet) questions around Section 230.

    02 Jul 00:06

    SCOTUS just made Citizens United even worse

    by Ian Millhiser
    Then-President Donald Trump speaks to Chief Justice John Roberts during the State of the Union address in the chamber of the US House of Representatives on February 4, 2020, in Washington, DC. | Mark Wilson/Getty Images

    It’s a great day for dark money.

    In its infamous decision in Citizens United v. FEC (2010), the Supreme Court tossed a bone to lawmakers seeking to regulate money in politics. With a few exceptions, Citizens United stripped the government of its power to limit the amount of spending on elections, especially by corporations. But the decision also gave the Court’s blessing to nearly all laws requiring campaigns and political organizations to disclose their donors.

    They’ve now stripped most of the lingering meat off that bone.

    On Thursday, the Court handed down a 6-3 decision in Americans for Prosperity Foundation v. Bonta, which flips Citizens United’s approach to disclosure laws on its head.

    Before Thursday, the Court treated most disclosure laws as valid, and it typically only allowed plaintiffs who objected to such a law to seek an exemption from it — not to seek a court order striking down the law altogether. After Americans for Prosperity, there is now a presumption that all such laws are unconstitutional — although this presumption might be rebuttable in some cases.

    As Justice Sonia Sotomayor writes in a dissenting opinion, “today’s analysis marks reporting and disclosure requirements with a bull’s-eye.” The upshot is that wealthy donors now have far more ability to shape American politics in secret — and that ability is only likely to grow as judges rely on the decision in Americans for Prosperity to strike down other donor disclosure laws.

    Americans for Prosperity was brought by two conservative organizations — the Americans for Prosperity Foundation, a conservative advocacy group closely associated with the billionaire Koch brothers; and the Thomas More Law Center, a conservative law firm that claims it was formed to promote “America’s Judeo-Christian heritage” — against a California regulation requiring charities that wish to raise tax-deductible funds in California to disclose their largest contributors to the state attorney general’s office. So the actual law at issue in this case is fairly far afield from actual campaigns for political office.

    But Chief Justice John Roberts’s opinion for himself and his fellow conservative justices has broad implications for all donor disclosure laws. It writes a new legal standard that will allow many future challenges to those laws to succeed, and that also will likely lead to sweeping victories for many of the plaintiffs in such suits.

    Americans for Prosperity destroys a consensus that used to exist between liberal and conservative justices

    Not that long ago, there was broad consensus that disclosure laws aren’t just permissible but essential in a democracy. As Justice Antonin Scalia wrote in a 2010 opinion:

    Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously ... and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

    That consensus is now dead. Much of the Court’s right flank spent the oral argument in Americans for Prosperity rejecting Scalia’s “civic courage” in favor of a kind of paranoia over cancel culture. Justice Neil Gorsuch warned that the government could demand to see your “Christmas card lists” or to disclose your “dating history” to state regulators. Justice Samuel Alito spoke of “vandalism, death threats, physical violence, economic reprisals, [and] harassment in the workplace” directed against donors to an anti-LGBTQ campaign.

    Under the previous consensus — the one announced in Citizens United — disclosure laws would be upheld so long as there is “a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.” Moreover, while some disclosure laws might be vulnerable to challenge, the Court typically only permitted “as applied” challenges, meaning that the plaintiff could seek an exemption from a particular disclosure law, but the law would still apply to other individuals or organizations. In other words, most disclosure laws were valid, and the onus was on the donors who wanted secrecy to prove they individually deserved it.

    The Court’s previous decisions, moreover, suggested that the bar for bringing such an as-applied challenge is fairly high. The seminal decision establishing that some organizations must be exempted from disclosure laws is NAACP v. Alabama ex rel. Patterson (1958), which was an attempt by the state of Alabama to force the NAACP — then the nation’s preeminent civil rights organization — to disclose its membership.

    Had the NAACP done so, Alabama could have turned those names over to the Ku Klux Klan, among other things.

    The plaintiffs in Americans for Prosperity do allege that they were the victims of death threats and other sorts of inexcusable activity — Roberts points a statement from someone working in the same building as the AFP Foundation, who said that he could “easily walk into [the CEO’s] office and slit his throat” — but nothing that even approaches the constant threat of terroristic violence that civil rights activists faced in the Jim Crow South.

    In any event, as Sotomayor writes in her dissent, she “would be sympathetic” to a decision that “simply granted as-applied relief” to these plaintiffs, because of the threats they’ve faced. But the Court goes much further, striking down California’s disclosure rules on their face — meaning that they are now invalid for everyone.

    The Court rewrites the legal standard governing disclosure laws

    As mentioned above, Citizens United held that disclosure laws would be upheld so long as there is “a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.” Roberts’s opinion abandons that standard, holding that disclosure laws must be “narrowly tailored” to advance the government’s interest in requiring disclosure.

    Most first-year law students will immediately recognize the significance of these two words, “narrowly tailored,” as it is part of the test the Supreme Court applies when it wishes to impose a very high presumption that certain laws are unconstitutional. The Court, for example, imposes a narrow tailoring requirement on laws that discriminate on the basis of race.

    Though Americans for Prosperity does not go quite as far as it could have — it does not apply a test known as “strict scrutiny,” the most skeptical test the Court applies in constitutional challenges — it comes pretty damn close.

    When the Court applies a narrow tailoring requirement, it signals that a law will typically be struck down if the government could have advanced its goal in some other way. The practical impact of Americans for Prosperity is that all disclosure laws, including campaign disclosure laws, are now vulnerable if a plaintiff can think of some other hypothetical way that the government might have fostered the goal of transparency.

    Roberts justified such a result because he claims that “disclosure requirements can chill association ‘[e]ven if there [is] no disclosure to the general public.’” He fears, in other words, a world in which donors will choose not to donate to groups like the Americans for Prosperity Foundation, out of fear that their names will be disclosed.

    And then, of course, there is the shift from as-applied to facial challenges. Rather than simply doling out exemptions to disclosure laws, courts are now much more likely to strike them down in their entirety.

    The decision is, simply put, a disaster for anyone hoping to know how wealthy donors influence American politics.

    02 Jul 00:01

    Judge Don Willett Calls Out Appeals Court For Saying Setting A Suicidal Man On Fire Didn't Violate His Rights

    by Tim Cushing

    Earlier this year, the Fifth Circuit Court of Appeals granted qualified immunity to cops who responded to a call about a suicidal man by setting him on fire and killing him. The man, who had just finished pouring gasoline over himself, was tased by two officers, causing him to burst into flames, which soon spread to the house around him. They tased him despite knowing two things: the man was covered in gas and that the manufacturer of their [extremely-dark lol] "less-lethal" devices specifically warned against deploying them around flammable substances.

    This is from the decision in which the Fifth saw nothing unjustifiable about these actions:

    Upon entering, Officer Guadarrama detected the odor of gasoline. A woman directed the officers to a corner bedroom on the east side of the house. There they found Gabriel Eduardo Olivas (“Olivas”) leaning against a wall and holding a red gas can. After turning his flashlight on Olivas, Officer Elliott allegedly shouted to Sergeant Jefferson and Officer Guadarrama, “If we tase him, he is going to light on fire.

    That's exactly what happened:

    Guadarrama and Elliott, at least, and maybe Jefferson as well, noticed that Olivas was holding some object that appeared as though it might be a lighter. Guadarrama, followed in short succession by Jefferson, fired his taser at the gasoline-soaked man, causing him to burst into flames. Corporal Ray and Officer Scott arrived at the scene at about this time. When they entered the house, they found Olivas engulfed in flames.

    The fire spread from Olivas to the walls of the bedroom, and the house eventually burned to the ground. The officers at the scene were able to evacuate the family members who had remained in the house, but Olivas was badly burned and later died from his injuries.

    The court looked past this and said the man posed a risk to himself and others. The risk was that he might set himself on fire and possibly the house as well. Before the cops intervened, it was only a risk. Once they did decide to act, it became a reality. Qualified immunity was awarded.

    The plaintiffs asked the court to reconsider. It has decided it won't rethink its decision. But its denial [PDF] of an en banc hearing contains an incredibly angry dissent written by Judge Don Willett, who criticized the doctrine of qualified immunity as a rigged game the government always wins in another blistering dissent back in 2018.

    Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

    That's the way the Supreme Court has set up federal courts to fail the public. It has made it extremely difficult for judges to actually set precedent declaring the actions before them as clear violations of rights. Instead of reaching these decisions, the courts find ways to excuse law enforcement officers for their actions.

    The Supreme Court seems to have reconsidered this approach in recent months. It has rejected two Fifth Circuit qualified immunity decisions and sent them back for reconsideration. These are noted in Willett's dissent, along with the absurdity of this particular decision. As Willett sees it, refusing to reconsider it now just means the court will be dealing with it later.

    In recent months, the Court has signaled a subtle, perhaps significant, shift regarding qualified immunity, pruning the doctrine’s worst excesses. The Justices delivered that message in back-to-back cases, both from this circuit and both involving obvious, conscience-shocking constitutional violations. This case is of a piece—yet more troubling. Whereas the Supreme Court’s two summary dispositions checked us for holding, on summary judgment, that there was no violation of “clearly established” law, despite obvious constitutional violations, here we held, on a motion to dismiss, that there was no violation of law whatsoever, despite an obvious constitutional violation. By giving a premature pass to egregious behavior, we have provided the Supreme Court yet another message-sending opportunity.

    Willett says the court decided to -- without explaining why -- ignore the allegations as pleaded, something it's supposed to do when the plaintiff is the non-moving party. The district court had denied immunity, resulting in the officers' appeal. Courts are supposed to consider all the facts and place it in front of a jury if needed. Qualified immunity bypasses all of this -- at least the way it's interpreted by too many courts -- and allows officers' claims that their actions were justified to be all the facts they need.

    These are the facts of the case:

    Gabriel Eduardo Olivas was burned alive. According to the facts alleged in the complaint—which we must accept as true—and drawing all reasonable inferences in Plaintiffs’ favor, two police officers tased the suicidal Olivas, despite:

    1. knowing that he was soaked in gasoline

    2. knowing from recent training that tasers ignite gasoline, and

    3. knowing from a fellow officer’s explicit warning in that instant, “If we tase him, he’s going to light on fire!”

    They fired their tasers anyway, knowing full well that using a taser was tantamount to using a flamethrower. Olivas burst into flames and later died.

    Those facts were ignored by the Fifth Circuit.

    The panel opinion, however, invoked something resembling summary-judgment review, hesitating over “disputed facts,” crediting the officers’ allegations instead of Plaintiffs’, and speculating about what non-lethal options the officers had—declaring that Officer Guadarrama fired first and had a “readily apparent justification for use of his taser” and that Officer Jefferson fired second and “had good reason” to tase an already ignited Olivas.

    The Fifth Circuit decided to give these officers a pass because they could see no other way to prevent a man from setting himself on fire other than setting him on fire, and no way to save a house from being burned down than to start a fire that eventually burned the house down. Willett says this conclusion is mind-boggling in its absurdity.

    The complaint alleges a plausible Fourth Amendment violation, and an obvious one at that. How is it reasonable—more accurately, not plausibly unreasonable—to set someone on fire to prevent him from setting himself on fire? To my mind, it is unfathomable to conclude with zero discovery, yet 100% finality, that no facially plausible argument exists that these officers acted unreasonably. Perhaps discovery would have supplied crucial facts that cut the officers’ way. But we have stumbled through the looking glass when we conclude—as a matter of constitutional law at the motion-to-dismiss stage—that government officials can burn someone alive and not even be troubled with discovery.

    Deciding the case ends here -- with a determination no reasonable person in the same situation would have set a man on fire -- not only ignores the evidentiary standard needed to move a case forward (plausible allegations) but it allows future rights violations to be considered gray areas where no "reasonable" cop would know to act differently. Without knowing more, the court is acting in willful ignorance that provides nothing approaching justice.

    Well, what should these officers have done? After all, this was a suicidal man drenched in gasoline experiencing a severe mental health crisis. A perfectly sensible question—but a premature one. Perhaps the panel is correct that “the officers had no apparent options.” Perhaps, as Plaintiffs allege, there were options galore, with the officers picking the one measure of force that was obviously off limits—a flamethrower. I cannot predict, at this stage, whether discovery will substantiate the existence of superior alternatives. But exploring that vital question is precisely why discovery exists.

    That officers face difficult decisions in difficult situations is not a free pass for them to behave recklessly or to deploy excessive force. These difficult questions demand thorough answers, not early exits from lawsuits simply because the answers don't immediately present themselves.

    These officers faced a harrowing, fast-moving situation, no question. But we cannot dispense with discovery as to the reasonableness of officers’ actions whenever circumstances are difficult. This is not second-guessing what the officers did. It’s simply, and unremarkably, recognizing that facts matter—in fact, facts are all that matter—and we must actually gather some in order to determine if these officers acted unreasonably.

    Being an escape hatch for wrongdoing is the side effect of the Supreme Court's continuous alteration of its self-created legal doctrine. But the two recent decisions sent back to the Fifth Circuit by the Supreme Court indicate a course correction by the nation's top court. And it's sending a message to every federal court, even though it's the Fifth Circuit that has been the recipient of its two most recent qualified immunity rejections. The procedural aspects of the doctrine are changing, Willet warns, and the Fifth Circuit's willingness to ignore the pointed rejections doesn't reflect well on it.

    These two orders make clear that the Court is earnest about reining in qualified immunity’s severest applications. This doctrinal clarification may not amount to sweeping reexamination, but the upshot is plain: In cases with “particularly egregious facts,” courts must not strain to absolve constitutional violations. Even if the precise fact pattern is novel, there is no need for a prior case exactly on point where the violation is obvious.

    [...]

    The principle uniting these recent rebukes is that the qualified immunity doctrine does not require judicial blindness. Courts need not be oblivious to the obvious.

    If Willett is right -- and every judge voting against a rehearing is wrong -- the Supreme Court will be sending this case back to the Fifth to correct at some point in the future. Allowing this decision to stand makes it that much easier for cops to kill people they're supposed to be saving.

    01 Jul 19:16

    Trump Allegedly Demanded Parler Kick Off His Critics If It Wanted Him On The Platform

    by Mike Masnick

    There has been a lot of speculation regarding whether or not Donald Trump would set up his own social network or if he'd just join one of the struggling social networks which only seem to exist in order to cater to Trump's most fervent supporters. Parler, obviously, gets a lot of attention and earlier this year there were reports that, while Trump was still President, he had entered into negotiations to take an equity stake in Parler and then embrace the platform as his preferred social network. As we noted back then, "for whatever reasons, the agreement did not materialize."

    A new book by Michael Wolff suggests one possible reason. It claims that Trump demanded that Parler had to block Trump's critics from its platform:

    One curious point of consideration for the [Trump] family [the morning of January 6th] — prescient of the events that would shortly unfold — was a follow-up to a discussion initiated some months before by aides and family. Trump representatives, working with Trump-family members, had approached Parler, the social network backed by Bob Mercer and his daughter Rebekah, far-right exponents and large Trump contributors. They had floated a proposition that Trump, after he left office, become an active member of Parler, moving much of his social-media activity there from Twitter. In return, Trump would receive 40 percent of Parler’s gross revenues and the service would ban anyone who spoke negatively about him.

    Parler was balking only at this last condition.

    Of course, this is absolutely hilarious for so many reasons. For years, Trump has been whining about how social media shouldn't be allowed to ban him and his friends, and couched it in (false) claims of supporting "free speech." Yet, here he was apparently making it clear that he not only wanted active content moderation on Parler, but that the moderation had to be directed at anyone who criticized him.

    How very free speechy of him.

    Of course, if Parler decided it did want to do this, it could. The 1st Amendment would protect such a decision, and with it, Section 230 would protect it from being sued for such decisions.

    I do wonder if this was some kind of reaction to the Knight Institute case that established that, while he was President, Trump couldn't block followers from accounts he used for conducting official Presidential business. You could see how he (and his associates) might think that a neat workaround to this 1st Amendment conundrum would be an agreement to have the platform do the blocking instead (of course, if Trump were still President, that would present another set of 1st Amendment issues, but thankfully we don't have to deal with those now).

    I am, however, quite excited to see what the crew of Trump-loving folks who show up in our comments think about this. After all, they regularly insist that they really just want social media companies to never ban anyone.

    01 Jul 14:10

    Wireless Carrier Injects Ads Into Two-Factor Authentication Texts

    by Karl Bode

    Not only are countless systems and services not secure, security itself often isn't treated with the respect it deserves. And tools that are supposed to protect you from malicious actors are often monetized in self-serving ways. Like that time Facebook advertised a "privacy protecting VPN" that was effectively just spyware used to track Facebook users when they weren't on Zuckerberg's platform. Or that time Twitter was hit with a $250 million fine after it chose to use the phone numbers provided by users for two-factor authentication for marketing purposes (something Facebook was also busted for).

    SMS verification ads themselves are also now being exploited as a marketing opportunity. Developer Chris Lacy was recently taken aback after an SMS two-factor authentication code from Google was injected with an SMS ad:

    Google confirmed to 9to5Google they didn't inject the ads, and that this was done by Lacy's wireless carrier (which he refused to reveal for privacy purposes). I've never seen a wireless carrier attempt this, and my guess is that (assuming he's in the States) this isn't one of the major three (AT&T, T-Mobile, and Sprint). It's most likely a smaller prepaid operator which, even in the wake of a more feckless FCC, faces some notable fines should the behavior get widespread attention. Both Google and Lacy say they're working with the anonymous carrier in question.

    Needless to say, security experts like Kenn White weren't particularly impressed:

    Ironically the ad was for VPN services, which themselves promise layers of security and privacy that often don't exist. Sent over an SMS system that security researchers are increasingly warning isn't secure enough for two-factor authentication or much of anything else. We live in an era where we prioritize monetization, but pay empty lip service to security and privacy. What could possibly go wrong in a climate like that?

    01 Jul 11:06

    As Expected: Judge Grants Injunction Blocking Florida's Unconstitutional Social Media Law

    by Mike Masnick

    I'm sorry, but those of you looking forward to riding the Friend Feed Flume at Zuckland or the Search Engine Shuffle at GooglePark are probably out of luck. Florida's new social media law (and its theme park owner exemption) is not going to become law.

    We've written a few times about Florida's blatantly corrupt and unconstitutional social media content moderation law -- complete with its special carveout for Disney*. The legal challenge to the bill had a hearing in court on Monday, and as we expected, Florida's arguments in favor of the bill were not well received. I listened to the entire hearing and, to put it mildly, the judge was not impressed by Florida's arguments. At one point, he literally asked the lawyer defending the bill if he had ever come across a more poorly drafted piece of legislation. That's generally not a good sign.

    And, now, with just hours to go until the law was supposed to go into effect, the judge has granted the preliminary injunction blocking the bill, and the ruling makes it pretty clear that this bill is not going to survive. Of course, Florida will likely appeal the ruling, and it'll be up to the Appeals Court to go into more depth. During the hearing, the judge, Robert Hinkle, more or less admitted this would be the case, and said that his ruling wouldn't go that deep, because what the Appeals Court says will be more important in the long run. Even so, the ruling is worth exploring, as it smashes the law to bits in a variety of ways.

    The State of Florida has adopted legislation that imposes sweeping requirements on some but not all social-media providers. The legislation applies only to large providers, not otherwise-identical but smaller providers, and explicitly exempts providers under common ownership with any large Florida theme park. The legislation compels providers to host speech that violates their standards—speech they otherwise would not host—and forbids providers from speaking as they otherwise would. The Governor’s signing statement and numerous remarks of legislators show rather clearly that the legislation is viewpoint-based. And parts contravene a federal statute. This order preliminarily enjoins enforcement of the parts of the legislation that are preempted or violate the First Amendment.

    So, let's start with ye olde 1st Amendment. As we predicted, it's pretty clear that this law violates it. The judge agrees. For all the talk of how the law supposedly "protects" the 1st Amendment, the judge recognized it absolutely does the opposite. I've tried to highlight the key bits if you want to skim:

    First, the State has asserted it is on the side of the First Amendment; the plaintiffs are not. It is perhaps a nice sound bite. But the assertion is wholly at odds with accepted constitutional principles. The First Amendment says “Congress” shall make no law abridging the freedom of speech or of the press. The Fourteenth Amendment extended this prohibition to state and local governments. The First Amendment does not restrict the rights of private entities not performing traditional, exclusive public functions. See, e.g., Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). So whatever else may be said of the providers’ actions, they do not violate the First Amendment.

    Second, the First Amendment applies to speech over the internet, just as it applies to more traditional forms of communication. See, e.g., Reno v. ACLU, 521 U.S. 844, 870 (1997) (stating that prior cases, including those allowing greater regulation of broadcast media, “provide no basis for qualifying the level of First Amendment scrutiny that should be applied” to the internet).

    Third, state authority to regulate speech has not increased even if, as Florida argued nearly 50 years ago and is again arguing today, one or a few powerful entities have gained a monopoly in the marketplace of ideas, reducing the means available to candidates or other individuals to communicate on matters of public interest. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the Court rejected just such an argument, striking down a Florida statute requiring a newspaper to print a candidate’s reply to the newspaper’s unfavorable assertions. A similar argument about undue concentration of power was commonplace as the social-media restrictions now at issue advanced through the Florida Legislature. But here, as in Tornillo, the argument is wrong on the law; the concentration of market power among large social-media providers does not change the governing First Amendment principles. And the argument is also wrong on the facts. Whatever might be said of the largest providers’ monopolistic conduct, the internet provides a greater opportunity for individuals to publish their views—and for candidates to communicate directly with voters—than existed before the internet arrived. To its credit, the State does not assert that the dominance of large providers renders the First Amendment inapplicable.

    The court then explores various precedential cases regarding the ability of the government to compel a private company to host speech and finds that the arguments of Florida are lacking. Since there are speech issues at stake, the law must be subject to strict scrutiny -- and as such it fails the 1st Amendment test. Indeed, public statements made by Florida's governor Ron DeSantis, grandstanding about this bill, are part of what helped to sink it (it would have been sunk anyway, but it's amusing to see his public statements used by the judge here):

    The plaintiffs assert, too, with substantial factual support, that the actual motivation for this legislation was hostility to the social media platforms’ perceived liberal viewpoint. Thus, for example, the Governor’s signing statement quoted the bill’s sponsor in the House of Representatives: “Day in and day out, our freedom of speech as conservatives is under attack by the ‘big tech’ oligarchs in Silicon Valley. But in Florida, we said this egregious example of biased silencing will not be tolerated.” Similarly, in another passage quoted by the Governor, the Lieutenant Governor said, “What we’ve been seeing across the U.S. is an effort to silence, intimidate, and wipe out dissenting voices by the leftist media and big corporations. . . . Thankfully in Florida we have a Governor that fights against big tech oligarchs that contrive, manipulate, and censor if you voice views that run contrary to their radical leftist narrative.” This viewpoint-based motivation, without more, subjects the legislation to strict scrutiny, root and branch. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) (“The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”) (citing Perry Ed. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)).

    Moreover, these statements are consistent with the statutory definition of “social media platform,” which extends only to, and thus makes the legislation applicable only to, large entities—those with $100 million in revenues or 100 million monthly participants. As the Supreme Court has recognized, discrimination between speakers is often a tell for content discrimination. See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010) (“Speech restrictions based on the identity of the speaker are all too often simply a means to control content.”). That is the case here. The state has suggested no other basis for imposing these restrictions only on the largest providers. And even without evidence of an improper motive, the application of these requirements to only a small subset of social-media entities would be sufficient, standing alone, to subject these statutes to strict scrutiny. See, e.g., Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 591 (1983); Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 229 (1987).

    And, yeah, the Disney carveout is seen as a tell as well:

    Finally, the same is true of the exclusion for social-media providers under common ownership with a large Florida theme park. The State asserted in its brief that the provision could survive intermediate scrutiny, but the proper level of scrutiny is strict, and in any event, when asked at oral argument, the State could suggest no theory under which the exclusion could survive even intermediate scrutiny. The State says this means only that the exclusion fails, but that is at least questionable. Despite the obvious constitutional issue posed by the exclusion, the Legislature adopted it, apparently unwilling to subject favored Florida businesses to the statutes’ onerous regulatory burdens. It is a stretch to say the severability clause allows a court to impose these burdens on the statutorily excluded entities when the Legislature has not passed, and the Governor has not signed, a statute subjecting these entities to these requirements.

    The judge then goes even further, by noting that even if you applied intermediate scrutiny (a lower standard) the bill still wouldn't live up to 1st Amendment requirements:

    The provisions at issue here do not meet the narrow-tailoring requirement. Indeed, some of the disclosure provisions seem designed not to achieve any governmental interest but to impose the maximum available burden on the social media platforms

    The judge also follows up on his comments during the hearing about how poorly drafted the law is to note the many problems in the law for being vague and open to wildly different interpretations, but notes that given the other reasons to block the law, he doesn't need to use the vagueness issue for the injunction.

    In the end, the court recognizes that this bill was really all about punishing a few companies, and that's not how the law is supposed to work:

    The legislation now at issue was an effort to rein in social-media providers deemed too large and too liberal. Balancing the exchange of ideas among private speakers is not a legitimate governmental interest. And even aside from the actual motivation for this legislation, it is plainly content-based and subject to strict scrutiny. It is also subject to strict scrutiny because it discriminates on its face among otherwise-identical speakers: between social-media providers that do or do not meet the legislation’s size requirements and are or are not under common ownership with a theme park. The legislation does not survive strict scrutiny.

    There is also, extremely briefly, a recognition that the law is likely pre-empted by Section 230, basically highlighting that the law clearly violates 230's prohibitions on allowing platforms to moderate as they see fit:

    Florida Statutes § 106.072 prohibits a social media platform from deplatforming a candidate for office and imposes substantial fines: $250,000 per day for a statewide office and $25,000 per day for any other office. But deplatforming a candidate restricts access to material the platform plainly considers objectionable within the meaning of 47 U.S.C. § 230(c)(2). If this is done in good faith—as can happen—the Florida provision imposing daily fines is preempted by § 230(e)(3). Good faith, for this purpose, is determined by federal law, not state law. Removing a candidate from a platform based on otherwiselegitimate, generally applicable standards—those applicable to individuals who are not candidates—easily meets the good-faith requirement. Indeed, even a mistaken application of standards may occur in good faith.

    The federal statute also preempts the parts of Florida Statutes § 501.2041 that purport to impose liability for other decisions to remove or restrict access to content. See Fla. Stat. § 501.2041(6) (creating a private right of action for damages for violations of § 501.2041(2)(b) and (2)(d)1; id. § 501.2041(2)(b) (requiring a social media platform to apply censorship, deplatforming, and shadow banning standards in a consistent manner); id. § 501.2041(2)(d)1 (prohibiting a social media platform from deplatforming a user or censoring or shadow banning a user’s content without notifying the user); § 501.2041(2) (making any violation of that subsection an unfair or deceptive act or practice within the meaning of § 501.204—and thus providing a private right of action for damages under § 501.211).

    Claims based on alleged inconsistency of a platform’s removal of some posts but not others are preempted.

    That last line needs to be repeated over and over again for every state considering these kinds of laws.

    Anyway, Florida is almost certainly going to waste more taxpayer dollars and appeal this ruling, but it's really difficult to see how the law survives. It was a garbage unconstitutional bill from the very beginning -- a point that many, many people made clear to both Governor DeSantis and the legislators who pushed this bill. But, of course, the goal was never to get this bill into actual law. It was all a big theater production -- to let them pretend to be culture warriors against "the libs" who they claim run social media platforms. It's just unfortunate that they get to throw away taxpayer money on their theatrical grandstanding.

    * By the way, if you'd like to see a fun moment in the Florida legislature during the debate over the bill, check out this fairly incredible video of the discussion between Rep. Blaise Ingoglia -- who inserted the Disney carveout -- and Rep. Anna Eskamani who wants to get him on record explaining why. Ingoglia flat out admits that it's to protect Disney, though his argument is so hilariously dumb it's hard to believe it's real. He argues that they need to protect Disney+ reviews (Disney+ doesn't currently have reviews) and that it shouldn't apply to other sites, because Disney creates its own content. This ignores, of course, that the entire bill is about the moderation of 3rd party content (such as, uh, reviews, which are not created by Disney). It's almost as if he doesn't understand what all of this means, and is just making sure to do a favor to Disney, just because.

    30 Jun 23:50

    Supreme Court Says Patent Review Judges Are Unconstitutional, But It Can Be Fixed If USPTO Director Can Overrule Their Decisions

    by Mike Masnick

    As you may recall, a few weeks ago I wrote about how Congress was asking the GAO to investigate whether the director of the US Patent & Trademark Office had been interfering in determinations made by the Patent Trial and Appeal Board (PTAB). I'm not going to go into all of the background again (please read the original for that), but under the America Invents Act, a process for reviewing patents after they were granted was set up, known as the Inter Partes Review (IPR) process. This was important, because the granting of patents is a non-adversarial process, where patent examiners are not given very much time to actually review everything. So the IPR process allowed those (especially those with prior art) to kick off a process by which the PTAB would recheck to see if the original examiner made a mistake in granting a 20 year monopoly to someone.

    Unfortunately, because the members of the PTAB are designated as Administrative Patent Judges (APJs), there was the question of whether or not they needed to be appointed by the President with Senate confirmation to abide by the Appointments Clause of the Constitution. That question has been hanging out in the Supreme Court for many months -- with the decision finally coming down this week. In arguing against this notion, the USPTO itself had claimed that the APJs were "interior officers" that don't need Senate confirmation, and part of their "proof" was that the Director of the PTO could review their decisions. This raised some alarms in Congress, because it certainly wasn't their intention (from everything stated so far) to allow the Director of the PTO to put their finger on the scale of what is and what is not patentable.

    The full opinion from the Supreme Court is a bit of a mess -- with different Justices signing onto different parts. But the key bits to pull out of this are that the Supreme Court found that the APJs are (or have been) "Principal Officers" meaning they should have been appointed by the President and confirmed by the Senate.

    History reinforces the conclusion that the unreviewable executive power exercised by APJs is incompatible with their status as inferior officers. Since the founding, principal officers have directed the decisions of inferior officers on matters of law as well as policy. Hamilton articulated the principle of constitutional accountability underlying such supervision in a 1792 Treasury circular. Writing as Secretary of the Treasury to the customs officials under his charge, he warned that any deviations from his instructions “would be subversive of uniformity in the execution of the laws.” 3 Works of Alexander Hamilton 557 (J. Hamilton ed. 1850). “The power to superintend,” he explained, “must imply a right to judge and direct,” thereby ensuring that “the responsibility for a wrong construction rests with the head of the department, when it proceeds from him.”

    However, in then immediately inserts its own remedy, saying that everything is fixable if the Patent Office Director actually can review the IPR decisions.

    In sum, we hold that 35 U. S. C. §6(c) is unenforceable as applied to the Director insofar as it prevents the Director from reviewing the decisions of the PTAB on his own. The Director may engage in such review and reach his own decision. When reviewing such a decision by the Director, a court must decide the case “conformably to the constitution, disregarding the law” placing restrictions on his review authority in violation of Article II

    So, the good news here is that the important PTAB/IPR process remains alive. But it does seem quite worrisome that the end result is that any Director of the Patent Office can now step in and overrule the PTAB. One would hope that the political ramifications of doing so would prevent it, but it does seem that it's now possible that a Director who just doesn't like the whole IPR/PTAB process (and there are many patent system fans who hate it) could just automatically deny every single IPR.

    And that seems very worrisome. Of course, all of this could be solved by making the APJs Senate confirmable, but apparently no one wants to bother with doing that. Alternatively, we could rethink the entire patent approval process altogether, so that it doesn't need to go back and realize it granted 20 year monopolies for no good reasons... but, you know, that would take actual effort.

    30 Jun 23:45

    Historians: Trump Was Only the Fourth-Worst President of All Time

    by Rosa Cartagena
    Today, C-SPAN released its Presidential Historians Survey of Presidential Leadership, which asks historians and professional presidential observers to rate commanders-in-chief on a scale of one to 10, focusing on 10 key leadership areas, like moral authority, vision, economic management, and more. At the top is Abraham Lincoln, George Washington, and Franklin D. Roosevelt. At the […]
    30 Jun 23:43

    The court decision freeing Bill Cosby, explained as best we can

    by Ian Millhiser
    Bill Cosby arrives at the Montgomery County Courthouse on the first day of sentencing in his sexual assault trial on September 24, 2018, in Norristown, Pennsylvania. | Mark Makela/Getty Images

    The court decision freeing Bill Cosby is a train wreck. It’s also probably correct.

    Bill Cosby, the disgraced comedian who was convicted of sexual assault in 2018, is no longer in prison, due to a state supreme court decision in Commonwealth v. Cosby.

    The circumstances that freed him involve a stunning display of prosecutorial incompetence, a divided Pennsylvania Supreme Court that split three ways on what should become of Cosby, and a long, rambling judicial opinion that is often difficult to parse.

    The thrust of that opinion is that, even though then-Montgomery County District Attorney Bruce Castor never reached a formal agreement with Cosby that granted him immunity from prosecution, a press release that Castor sent out in 2005 — combined with Cosby’s later, incriminating testimony in a civil lawsuit — had the same effect as a formal immunity deal.

    That decision — which, again, attaches a simply astonishing amount of legal weight to a 16-year-old press release — is less ridiculous than it sounds. It does not exonerate Cosby; it merely strikes down his conviction on constitutional grounds. Justice David Wecht’s majority opinion is poorly organized and, at times, quite difficult to follow. But it is rooted in basic principles of contract law that will be familiar to most first-year law students.

    The court owed the public, and especially victims of sexual assault, a clearer explanation of why it decided to free Cosby. Though accusations against the former entertainer came to light before the Me Too movement began, he was, as Vox’s Anna North explained, “one of the first high-profile men to face criminal consequences for sexual misconduct” since the movement gained steam. The court’s often-confounding opinion muddies this case’s place in history and may contribute to sexual assault victims’ sense that reporting the crimes against them won’t lead to justice.

    But that doesn’t necessarily mean the court’s decision was wrong as a matter of law. Six members of the seven-justice Pennsylvania Supreme Court agreed that Cosby’s conviction must be tossed out, although only Wecht and three other justices agreed that the state should not be allowed to retry Cosby.

     Mark Makela/Getty Images
    Bill Cosby walking the halls of the Montgomery County Courthouse after being sentenced after his sexual assault retrial on September 25, 2018, in Norristown, Pennsylvania.

    Sixty women accused Cosby of sexual assault, but he was ultimately convicted of assaulting just one of those women, Andrea Constand.

    It’s possible that some other prosecutor will pursue a case involving one of Cosby’s 59 other accusers. But, barring an unlikely intervention by the US Supreme Court, Wecht is likely to have the final word on Cosby’s conviction for assaulting Constand.

    That conviction is now dead, and likely to remain so.

    Cosby was convicted of sexually assaulting Constand after drugging her

    Andrea Constand is a former professional basketball player who formed a personal relationship with Cosby while she was directing Temple University’s women’s basketball program. Cosby invited her to his home, invited her family to his standup performances, and offered to help Constand launch a career in sports broadcasting. As P.R. Lockhart reported for Vox in 2018, “In 2004, Constand alleged that Cosby drugged and molested her during an incident at his home. The accusations were the subject of a civil lawsuit in 2005 and a criminal trial in 2017.”

    Per the suits, during a visit to Cosby’s home in 2004, Cosby convinced Constand to take three pills containing some sort of sedative (Cosby claims that the pills were Benadryl). Shortly thereafter, Constand became weak and unable to move or speak. She also started slipping in and out of consciousness.

    Then, while Constand was unable to tell Cosby “no” or physically attempt to stop him, he touched her breasts and inserted his fingers into her vagina. Cosby also used Constand’s hand to masturbate himself.

    This incident also fit a pattern. At the criminal trial where Cosby was convicted of assaulting Constand, five other women testified that Cosby had also sexually assaulted them. Several of them testified that Cosby offered to mentor them or otherwise indicated that he could help their careers. And all of them testified that he gave them drugs, alcohol, or both to prevent them from resisting when he attacked them.

    Prosecutors did not bring charges against Cosby until 2015, however, more than a decade after he assaulted Constand. Part of the reason is that Constand did not come forward with her allegations against Cosby until 2005, about a year after she was assaulted.

    But an even more significant reason is that Castor, the district attorney, did not believe he could secure a conviction if he’d brought charges against Cosby in 2005.

    Castor’s ill-conceived press release, and its aftermath

    After a month-long investigation into Constand’s allegations against Cosby, Castor decided not to bring charges. Yet, according to Wecht’s majority opinion, Castor still “contemplated an alternative course of action that could place Constand on a path to some form of justice.”

    That path: civil court.

    Under the Fifth Amendment, no one may be “compelled in any criminal case to be a witness against himself.” But if a potential criminal defendant is given immunity from prosecution, they may be compelled to testify against themselves in a civil trial. So, as Castor later explained, he decided “that Mr. Cosby would not be prosecuted no matter what,” thinking Constand would have a better shot at justice in civil court. With the threat of prosecution removed, “that then made it so that [Cosby] could not take the Fifth Amendment ever as a matter of law.”

    But Castor never reached a formal immunity agreement with Cosby, and Pennsylvania law typically requires a district attorney to “request an immunity order from any judge of a designated court” before such an agreement is finalized.

     David Maialetti/Pool/AFP via Getty Images
    Andrea Constand arrives at the sentencing hearing of Bill Cosby’s sexual assault trial at the Montgomery County Courthouse in Norristown, Pennsylvania.

    Instead, Castor sent a press release in February 2005 announcing that “the District Attorney finds insufficient credible and admissible evidence exists upon which any charge against Mr. Cosby could be sustained beyond a reasonable doubt.” The press release claimed that “a conviction under the circumstances of this case would be unattainable.”

    Less than a month later, Constand filed a civil suit against Cosby, which she eventually settled for $3.38 million. But Cosby and Castor didn’t reach a formal immunity agreement during the year and a half while this case was being litigated either. During that suit, Cosby sat for four depositions and testified about his interactions with Constand. He also admitted that, in the past, he’d given Quaaludes, a sedative drug, to women with whom he wanted to have sex.

    According to Wecht, “From the perspective of Cosby’s attorneys, the district attorney’s decision legally deprived Cosby of any right or ability to invoke the Fifth Amendment,” and “not once during the four depositions did Cosby invoke the Fifth Amendment or even mention it.”

    Castor stepped down as district attorney in 2008 following his election to another office (Castor is a prominent Pennsylvania Republican, who briefly served as the state’s acting attorney general in 2016 and eventually represented then-President Donald Trump at his second impeachment trial), and his successor, Risa Vetri Ferman, decided to reopen the Cosby investigation in 2015.

    Significantly, Ferman made the decision to reopen the investigation after a federal judge unsealed Cosby’s depositions, suggesting she may have based that decision on information Cosby revealed while testifying during the civil trial. Moreover, as Justice Kevin Dougherty notes in a partial dissent, Ferman’s office used “the evidence obtained in the civil case concerning Cosby’s ‘use of drugs to facilitate his sexual exploits’” against Cosby at his criminal trial.

    And that brings us to the legal reason the state supreme court eventually tossed out Cosby’s conviction.

    Wecht’s opinion is rooted in the idea that prosecutors must be bound by their own promises

    In order to understand Wecht’s opinion, it’s helpful to understand a few basic contract law principles.

    Ordinarily, in order for two parties to be bound by a contract, certain elements must be present. One party has to make the other an offer, and the other party needs to accept that offer. There also must be “consideration,” meaning each party has to agree to give something up to the other one. Under a doctrine known as “promissory estoppel,” however, a court will sometimes dispense with these requirements if one party makes a promise to the other, and the second party relies on that promise to their detriment.

    Here’s a fairly basic example of how promissory estoppel works: When I started law school, a school official told the incoming class that the university would not enforce parking restrictions during the first week of classes. I relied on this promise, parked in a lot that I was ordinarily not allowed to park in, and received a ticket. After I complained to the university, they rescinded the ticket, because I’d relied on the university’s promise and suffered as a result.

    According to Wecht, Castor’s 2005 press release functions much like my law school’s promise not to ticket me if I parked in the wrong lot. Cosby, moreover, relied on Castor’s alleged promise not to prosecute him by declining to assert his Fifth Amendment rights during his civil trial. And Cosby relied on that alleged promise very much to his own detriment. Not only did he reveal incriminating information during his civil depositions — testimony that was used against him in a criminal trial — but he also later settled the case for millions of dollars.

    There are a number of weaknesses in Wecht’s arguments. For one thing, as Wecht acknowledges in his opinion, Pennsylvania law typically requires prosecutors to seek a formal order from a judge if they want to grant immunity from prosecution to a particular individual. And the 2005 press release doesn’t exactly contain explicit language to the effect of “I promise that this office will never bring a prosecution against Bill Cosby.”

    As Justice Thomas Saylor writes in a dissenting opinion:

    I read the operative language [of the press release] — “District Attorney Castor declines to authorize the filing of criminal charges in connection with this matter” — as a conventional public announcement of a present exercise of prosecutorial discretion by the temporary occupant of the elected office of district attorney that would in no way be binding upon his own future decision-making processes, let alone those of his successor.

    Wecht, meanwhile, replies that prosecutors must be held to a higher standard. “As prosecutors are vested with such ‘tremendous’ discretion and authority,” he writes in the court’s majority opinion, “our law has long recognized the special weight that must be accorded to their assurances.”

    In any event, Saylor was the sole dissenter on this point. All six other justices agreed that Castor’s press release should be read as a promise. As Dougherty writes in his partial dissent:

    By publicly announcing that appellant William Cosby would not be charged with any crimes related to Andrea Constand — a decision apparently made, in part, to force Cosby to testify in Constand’s future anticipated civil suit — former Montgomery County District Attorney Bruce Castor intended to, and in fact did, force Cosby to give up his Fifth Amendment right against self-incrimination. Then, years later, Castor’s successor used the damaging evidence Cosby turned over in the civil case to convict him of the same criminal offenses he had previously been induced to believe were off the table. I am constrained to agree with the majority that due process does not permit the government to engage in this type of coercive bait-and-switch.

    It should be noted that neither Wecht’s nor Dougherty’s opinion suggests that any statement by a prosecutor who declines to bring a certain prosecution prevents them, or their successor, from changing their mind later. Rather, Cosby prevailed because he relied on Castor’s previous statement and abandoned his Fifth Amendment rights during the civil lawsuit.

    So what’s the remedy?

    One of the weakest parts of Wecht’s majority opinion is the final part of his reasoning, where he concludes that the state is permanently barred from retrying Cosby for assaulting Constand.

    The thrust of this section of Wecht’s opinion is that the state’s treatment of Cosby was so egregious that it demands an extreme remedy. “It bears repeating that D.A. Castor intended his charging decision to induce the waiver of Cosby’s fundamental constitutional right,” Wecht writes. He adds that “under these circumstances, neither our principles of justice, nor society’s expectations, nor our sense of fair play and decency, can tolerate anything short of compelling the Montgomery County District Attorney’s Office to stand by the decision of its former elected head.”

    That decision, of course, was the decision to never bring charges against Cosby.

    Dougherty, meanwhile, sketches out a more moderate approach in his partial dissent. “It is not the mere fact that another district attorney sought to prosecute Cosby after Castor made an unauthorized (and invalid) declaration there would be no such prosecution that resulted in the due process violation,” Dougherty writes. Rather, it was the prosecution’s use of information obtained at the civil trial to convict Cosby.

    Accordingly, the appropriate remedy, according to Dougherty, should be to allow the state to retry Cosby but to also bar the prosecution from using any evidence gleaned from his civil trial. (The court’s decision might also prevent the Montgomery County District Attorney’s Office from using Cosby’s civil testimony to charge him for the alleged assault of his other accusers, although it’s far from clear that the decision would impact other prosecutors.)

     Lucas Jackson-Pool/Getty Images
    Bill Cosby walks with his publicist, Andrew Wyatt (right) at the Montgomery County Courthouse on June 16, 2017 in Norristown, Pennsylvania.

    Given the unusual facts of this case, it’s hard to say who is correct in this dispute. No member of the court doubts that Cosby committed a serious crime, and his release is likely to retraumatize many of his victims. At the same time, it’s not at all clear that Ferman, Castor’s successor, would have agreed to reopen the investigation into Cosby had she not learned what was in his civil depositions.

    If she would not have acted but for Cosby’s belief that his civil testimony could not be used against him, it is much more reasonable to argue that the entire criminal trial was the fruit of a poisoned tree.

    The court owed everyone a better explanation

    Having done my best to explain why Bill Cosby is now a free man, I want to conclude with a few observations about Wecht’s majority opinion. I’ve probably read hundreds, if not thousands, of judicial opinions in my career, and purely as a matter of judicial craftmanship, Wecht’s is one of the worst.

    Wecht’s opinion rambles for 79 pages. It includes long and unnecessary block quotes that take up several pages. It is duplicative, sometimes repeating unimportant facts three or four times, while it simultaneously places little emphasis on essential parts of the case.

    Having now read all the opinions in the Cosby case, I’ve concluded that the majority is likely correct that Cosby’s conviction should be tossed out. The single most important fact in this case, in my opinion, is that prosecutors used Cosby’s civil testimony against him in a criminal proceeding, even after they induced him to testify as if he were immune to prosecution.

    But that fact receives frightfully little attention in Wecht’s opinion. I will confess that I was not even aware of it until I read Dougherty’s partial dissent, which, unlike the majority opinion, emphasizes this crucial fact in its first paragraph.

    The price of living under the rule of law is that the law must apply equally to everyone. If a conviction violates the Constitution, it must be tossed out. The fact that the law protects everyone, even loathsome men like Bill Cosby, is what guarantees each of us that the law will protect us should we ever need it.

    But the rule of law also depends on individual citizens believing that judges are applying the law fairly. When a court issues an unpopular decision, especially in a case as fraught as this one, it needs to explain its reasoning clearly.

    Wecht’s opinion, frankly, does not clear that low bar. He owed us a better opinion.

    30 Jun 18:24

    Did The Supreme Court Just Take A Sledge Hammer To Copyright's Statutory Damages?

    by Mike Masnick

    Last week, in a somewhat controversial decision in the TransUnion v. Ramirez case, the Supreme Court ruled, 5 to 4, that plaintiff's in a class action lawsuit did not have standing to sue under the Fair Credit Reporting Act (FRCA). The issue may seem wholly unrelated from copyright, but in reading through the decision, it's possible it could lead to a vastly different world for copyright going forward, because the same issues that the Court finds fault with in the FRCA also apply to copyright law -- and, indeed, it's the part of copyright law that is most widely abused in lawsuits.

    I should be clear that I think the holding in the TransUnion case is problematic and seems... well... weird. But if what the majority decided is true, then I don't see how copyright's statutory damages can remain constitutional. Let's dig into the case to explore why. The majority opinion, written by Justice Kavanaugh gives the basic overview right upfront:

    To have Article III standing to sue in federal court, plaintiffs must demonstrate, among other things, that they suffered a concrete harm. No concrete harm, no standing. Central to assessing concreteness is whether the asserted harm has a “close relationship” to a harm traditionally recognized as providing a basis for a lawsuit in American courts—such as physical harm, monetary harm, or various intangible harms including (as relevant here) reputational harm.

    The issue in this case involved TransUnion's credit reports damaged people by flagging their reports to say that they might be listed on an Office of Federal Assets Control (OFAC) watchlist. Basically, if TransUnion thought that someone's name matched someone on the OFAC list, it would put that in their credit report. For a lot of people who aren't actually on the OFAC list, that can really suck. That resulted in this lawsuit. The court found that for those on that list who could show actual damage, they had standing. But, for others who were flagged by TransUnion, but could not show any actual harm, they did not have standing to sue.

    In this case, a class of 8,185 individuals sued TransUnion, a credit reporting agency, in federal court under the Fair Credit Reporting Act. The plaintiffs claimed that TransUnion failed to use reasonable procedures to ensure the accuracy of their credit files, as maintained internally by TransUnion. For 1,853 of the class members, TransUnion provided misleading credit reports to third-party businesses. We conclude that those 1,853 class members have demonstrated concrete reputational harm and thus have Article III standing to sue on the reasonable-procedures claim. The internal credit files of the other 6,332 class members were not provided to third-party businesses during the relevant time period. We conclude that those 6,332 class members have not demonstrated concrete harm and thus lack Article III standing to sue on the reasonable-procedures claim.

    The constitutional analysis focuses on the power of the judiciary to deal with actual cases and controversies:

    Therefore, we start with the text of the Constitution. Article III confines the federal judicial power to the resolution of “Cases” and “Controversies.” For there to be a case or controversy under Article III, the plaintiff must have a “‘personal stake’” in the case—in other words, standing. Raines, 521 U. S., at 819. To demonstrate their personal stake, plaintiffs must be able to sufficiently answer the question: “‘What’s it to you?’” Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 882 (1983).

    To answer that question in a way sufficient to establish standing, a plaintiff must show (i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560– 561 (1992). If “the plaintiff does not claim to have suffered an injury that the defendant caused and the court can remedy, there is no case or controversy for the federal court to resolve.” Casillas v. Madison Avenue Assocs., Inc., 926 F. 3d 329, 333 (CA7 2019) (Barrett, J.).

    So, then the open question is whether or not a law that allows a private right of action over something that is a potential, but not concrete, harm meets the standard. And the majority decides it does not. And then, it goes even further, and notes that even if Congress creates a statutory "prohibition or obligation," courts can't just accept that as evidence of a concrete harm:

    Importantly, this Court has rejected the proposition that “a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Spokeo, 578 U. S., at 341. As the Court emphasized in Spokeo, “Article III standing requires a concrete injury even in the context of a statutory violation.” Ibid.

    Congress’s creation of a statutory prohibition or obligation and a cause of action does not relieve courts of their responsibility to independently decide whether a plaintiff has suffered a concrete harm under Article III any more than, for example, Congress’s enactment of a law regulating speech relieves courts of their responsibility to independently decide whether the law violates the First Amendment. Cf. United States v. Eichman, 496 U. S. 310, 317– 318 (1990). As Judge Katsas has rightly stated, “we cannot treat an injury as ‘concrete’ for Article III purposes based only on Congress’s say-so.” Trichell v. Midland Credit Mgmt., Inc., 964 F. 3d 990, 999, n. 2 (CA11 2020) (sitting by designation); see Marbury, 1 Cranch, at 178; see also Raines, 521 U. S., at 820, n. 3; Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 41, n. 22 (1976); Muskrat v. United States, 219 U. S. 346, 361–362 (1911).

    As the Court then says explicitly, just because someone will have claimed to have violated a statutory cause of action that does not automatically mean there is a concrete harm:

    For standing purposes, therefore, an important difference exists between (i) a plaintiff ’s statutory cause of action to sue a defendant over the defendant’s violation of federal law, and (ii) a plaintiff ’s suffering concrete harm because of the defendant’s violation of federal law. Congress may enact legal prohibitions and obligations. And Congress may create causes of action for plaintiffs to sue defendants who violate those legal prohibitions or obligations. But under Article III, an injury in law is not an injury in fact. Only those plaintiffs who have been concretely harmed by a defendant’s statutory violation may sue that private defendant over that violation in federal court.

    Indeed, the majority argues that this is, fundamentally, a separation of powers issue:

    In sum, the concrete-harm requirement is essential to the Constitution’s separation of powers. To be sure, the concrete-harm requirement can be difficult to apply in some cases. Some advocate that the concrete-harm requirement be ditched altogether, on the theory that it would be more efficient or convenient to simply say that a statutory violation and a cause of action suffice to afford a plaintiff standing. But as the Court has often stated, “the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.” Chadha, 462 U. S., at 944. So it is here.

    The main dissent, written by Justice Thomas (it's an ideologically odd pairing: Justice Thomas with the three Justices most commonly found on the other end of the ideological spectrum: Justices Breyer, Sotomayor, and Kagan) is actually fairly compelling regarding the issue of concrete harm:

    The principle that the violation of an individual right gives rise to an actionable harm was widespread at the founding, in early American history, and in many modern cases. See Uzuegbunam, 592 U. S., at ___–___ (slip op., at 5–8) (collecting cases); Havens Realty Corp. v. Coleman, 455 U. S. 363, 373 (1982) (“[T]he actual or threatened injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing” (citing cases; brackets and internal quotation marks omitted)). And this understanding accords proper respect for the power of Congress and other legislatures to define legal rights. No one could seriously dispute, for example, that a violation of property rights is actionable, but as a general matter, “[p]roperty rights are created by the State.” Palazzolo v. Rhode Island, 533 U. S. 606, 626 (2001). In light of this history, tradition, and common practice, our test should be clear: So long as a “statute fixes a minimum of recovery . . . , there would seem to be no doubt of the right of one who establishes a technical ground of action to recover this minimum sum without any specific showing of loss.” T. Cooley, Law of Torts *271.3 While the Court today discusses the supposed failure to show “injury in fact,” courts for centuries held that injury in law to a private right was enough to create a case or controversy.

    Thomas also goes back to the issue of statutory damages in copyright to prove his point:

    The First Congress enacted a law defining copyrights and gave copyright holders the right to sue infringing persons in order to recover statutory damages, even if the holder “could not show monetary loss.” Muransky v. Godiva Chocolatier, Inc., 979 F. 3d 917, 972 (CA11 2020) (Jordan, J., dissenting) (citing Act of May 31, 1790, §2, 1 Stat. 124–125). In the patent context, a defendant challenged an infringement suit brought under a similar law. Along the lines of what TransUnion argues here, the infringer contended that “the making of a machine cannot be an offence, because no action lies, except for actual damage, and there can be no actual damages, or even a rule for damages, for an infringement by making a machine.” Whittemore v. Cutter, 29 F. Cas. 1120, 1121 (No. 17,600) (CC Mass. 1813). Riding circuit, Justice Story rejected that theory, noting that the plaintiff could sue in federal court merely by alleging a violation of a private right: “[W]here the law gives an action for a particular act, the doing of that act imports of itself a damage to the party” because “[e]very violation of a right imports some damage.” Ibid.; cf. Gayler v. Wilder, 10 How. 477, 494 (1851) (patent rights “did not exist at common law”).

    But this example in the dissent now seems to serve the opposite point: and effectively argues that under the majority decision, copyright's statutory damages may not be available at all if a plaintiff cannot show "concrete harm."

    That's a very big deal in the copyright context. For years, we've pointed out the problematic nature of statutory damages in copyright. Under copyright law, if the work is registered before the infringement, statutory damages are available. And the whole theory behind them is that it's supposedly difficult to show the concrete harm of infringement, and therefore, you don't need to show any actual harm to get statutory damages, and those damages are wholly unrelated to any actual harm. As we noted a decade ago, this makes it "too attractive to sue." Basically, the possible payout from statutory damages, without having show any actual harm or damages at all, is massively distortionary.

    And, now, looking at this ruling, it seems that there's an open argument if copyright plaintiffs will now be able to rely on statutory damages if they can't show any harm at all. This wouldn't completely take away statutory damages, but would, at the very least require plaintiffs to show some kind of harm.

    Of course, when it comes to copyright law, one of the things we've noted is that courts seem to ignore every other precedent and treat everything related to copyright as if it's different. And, if this issue ever comes back to the court, I'd predict we'd see that same thing again. Judges will bend over backwards to insist that copyright is somehow "different." And it's possible that the majority ruling has an escape valve for that: it mentions repeatedly that part of the way of judging whether or not there's concrete harm is whether or not the issue is "traditionally recognized as providing a basis of a lawsuit in American courts." And, as the Thomas dissent makes clear, that's definitely been the case for copyright law and statutory damages going back basically to the beginning.

    However, I do wonder if there's another interesting opening here on that: while in the early 2000s, Larry Lessig pushed a variety of failed cases to try to argue that the massive changes brought about by more recent copyright law changes raised constitutional issues. The Supreme Court rejected those arguments (wrongly in my opinion), but I do wonder if this ruling in TransUnion, at the very least, raises questions about statutory damages under the 1976 Copyright Act, since it covers so much more content, for so much longer, than was "traditional" under copyright law for the first two centuries of the country.

    30 Jun 18:05

    Google and Microsoft agree to start suing each other again

    by Tim De Chant
    Google and Microsoft agree to start suing each other again

    Enlarge (credit: Halil Sagirkaya / Anadolu Agency)

    After years of relative calm, Google and Microsoft are tossing out their ceasefire, a move that—perhaps ironically—could bring each company additional antitrust scrutiny.

    The non-aggression pact, signed five years ago, let the two companies set aside their numerous lawsuits. It also created a process by which they could resolve conflicts behind closed doors, requiring Microsoft and Google to follow that process before asking regulators to step in. During this time, the two companies have tussled over a number of issues, including whether search engines should pay news publishers. But Microsoft reached the end of its rope when it felt that Google wasn’t playing fair in ad tech.

    Both companies attempted to solve the impasse through a series of escalating negotiations as laid out in the agreement. The matter ultimately reached the corner office, with CEOs Satya Nadella and Sundar Pichai holding a series of talks that didn’t reach a solution. That lack of a resolution is what apparently led to the agreement’s unraveling, according to a new Bloomberg report.

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