2nd amendment – Techdirt (original) (raw)

The $1M Question: Is Elon Musk’s ‘Petition’ Drive Actually Legal?

from the just-flip-the-parties dept

Remember a few weeks ago when Elon Musk misleadingly claimed that George Soros was secretly “buying a propaganda machine to influence how you think”? Can you imagine the kind of shitstorm that would be playing out on ExTwitter and Fox News if George Soros were out there offering $1 million per day to people to sign a petition and encouraging them to vote?

It would be pandemonium.

But, it’s actually Elon Musk who is doing it and the press coverage seems pretty muted. Over the last few weeks, Elon has been offering smaller payments to get people to sign a petition the PAC he created was pushing. Originally, he was offering 47toanyoneinaswingstateiftheyreferredafriendtosignhispetition.Thenheuppedthatofferto47 to anyone in a swing state if they referred a friend to sign his petition. Then he upped that offer to 47toanyoneinaswingstateiftheyreferredafriendtosignhispetition.Thenheuppedthatofferto100 to anyone in Pennsylvania.

Over the weekend, though, he got a lot more attention by promising to give away $1 million each day until the election to a “random” signatory of the petition. Each day the giveaway will be in a different battleground area:

He claims he’s doing this to “maximize awareness of our petition to support The Constitution.”

The “petition” itself is a joke. There’s no “petition” at all. It just says that it’s a “petition in favor of free speech and the right to bear arms.” But there is no indication of who the petition is for. There is no further text of the petition beyond what I quoted. It’s literally just the following:

The First and Second Amendments guarantee freedom of speech and the right to bear arms. By signing below, I am pledging my support for the First and Second Amendments.

The idea that Elon Musk supports the First Amendment is laughable, given that he has regularly acted in ways that suppress free speech, including suing multiple critics for their free speech. He remains actively engaged in at least three cases where he sued people and organizations over their speech.

But, more to the point, this isn’t an actual “petition.” It’s a scammy “get out the vote” effort at a time when the Trump campaign has handed a large portion of its “get out the vote” effort to Elon, and that’s reportedly been flailing. Again, nothing is being done with the petition except that it is being used to collect names, addresses, and email addresses which Elon’s team can use to push people to vote:

It’s traditional list building. By framing it as being about “the First and Second Amendment,” they’re expecting to find likely Trump voters (though it’s possible that the $1 million lottery might incentivize non-Trump supporters to sign just for the hell of it, polluting the list). The fact that you have to be “registered to vote” in a swing state to receive the payout makes it clear that this is a petition about voting, and that appears to make it illegal.

On Saturday, Rick Hasen, one of the leading election law experts in the world, wrote that it was clear this violates election law designed to stop vote buying, as the law applies to paying people to entice them to register:

Though maybe some of the other things Musk was doing were of murky legality, this one is clearly illegal. See 52 U.S.C. 10307(c): “Whoever knowingly or willfully gives false information as to his name, address or period of residence in the voting district for the purpose of establishing his eligibility to register or vote, or conspires with another individual for the purpose of encouraging his false registration to vote or illegal voting, or pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years, or both…” (Emphasis added.)

See also the DOJ Election Crimes Manual at 44: “The bribe may be anything having monetary value, including cash, liquor, lottery chances, and welfare benefits such as food stamps. Garcia, 719 F.2d at 102. However, offering free rides to the polls or providing employees paid leave while they vote are not prohibited. United States v. Lewin, 467 F.2d 1132, 1136 (7th Cir.1972). Such things are given to make it easier for people to vote, not to induce them to do so. This distinction is important. For an offer or a payment to violate Section 10307(c), i t must have been intended to induce or reward the voter for engaging in one or more acts necessary to cast a ballot.… Moreover, payments made for some purpose other than to induceor reward voting activity, such as remuneration for campaign work, do not violate this statute. See United States v. Canales 744 F.2d 413, 423 (5th Cir. 1984) (upholding conviction because jury justified in inferring that payments were for voting, not campaign work). Similarly, Section 10307(c) does not apply to payments made to signature-gatherers for voter registrations such individuals may obtain. However, such payments become actionable under Section 10307(c) if they are shared with the person being registered.” (Emphases added.)

Another legal expert, campaign finance lawyer Brendan Fischer, told the NY Times that this was “alarming”:

“I thought the initial arrangement was lawful because the PAC was just paying one person who referred another person to sign a petition that itself made no reference to registration or voting. The latest version of this plan comes much closer to the legal line,” he said. “There would be few doubts about the legality if every Pennsylvania-based petition signer were eligible, but conditioning the payments on registration arguably violates the law, which prohibits giving anything of value to induce or reward a person for registering to vote.”

I am sure that Musk, Trump, and their supporters will insist that this isn’t vote buying, since it’s not about voting, just about “awareness of the petition.” But the only purpose behind the petition is to build a list for get out the vote efforts. And the inclusion of the voter registration in a swing state to be eligible for a payout kinda gives away the game.

Again, I challenge literally anyone who supports this to say they’d be totally fine with George Soros doing the same thing. If they won’t respond affirmatively to that, they are admitting they are full of shit.

While the fines for violating this law are small ($10,000), they can also include up to five years in prison. I doubt Musk is seriously facing time behind bars (he’s rich, the law doesn’t apply to him), it is notable.

Just a few weeks ago, Musk made one of his conspiracy theory nonsense claims about how if Harris won the election, she might throw him in jail. That was such a stupid claim at the time, because that’s not how any of this works. And, if Harris is (as Musk & crew assert) just a continuation of Joe Biden’s administration, the Biden admin has not only not thrown Musk in jail, they’ve given him billions of dollars in contracts.

But maybe what Elon really meant was that he was going to break the law as much as possible to try to support Trump and that’s why he would end up in jail if Harris won…

Filed Under: 1st amendment, 2nd amendment, campaign finance, donald trump, elon musk, list building, lottery, paying people to vote, petition, rick hasen, swing states

2nd Circuit To Cop: Someone Observing All The Laws Is Not ‘Probable Cause’ For A Search

from the any-excuse-for-a-rights-violation dept

It’s about the stupidest thing anyone could claim in defense of an unlawful detention and search, but Waterbury, CT police office Nicholas Andrzejewski did it anyway. He actually told a court (twice!) that someone respecting every single law applicable to them at the point of this unwelcome interaction was at least reasonable suspicion for a search, if not actual probable cause.

Here’s how this started, taken from the Second Circuit Appeals Court’s rejection [PDF] of the officer’s attempt to walk away from this civil rights suit:

At approximately 8:43 p.m. on November 12, 2018, Basel Soukaneh stopped his car with the engine running on the side of a street in Waterbury, Connecticut. Soukaneh’s iPhone GPS, located in a holder mounted to the car’s dashboard, was frozen, and he stopped his car to fix it. The area “was dark and [known as] a high crime area well known for prostitution, drug transactions and other criminal activity.”

Ah. The old boilerplate. These assertions about dark, high crime, drug area, blah blah blah presumably autofill whenever a cop starts a sentence explaining their reasonable suspicions on their incident report. It’s so overused and so devoid of actual facts that it’s become a parody of itself. Here’s Scott Greenfield’s take on this part of the officer’s narrative:

Was there articulable suspicion that a crime was being committed because Souhaneh stopped his car on the street? It was dark, as nights tend to be. It was in a high crime area, as is every area in pretty much any city anywhere. And yet, the court saw no problem with Andrzejewski demanding his license, for doing exactly what drivers are instructed to do by pulling over rather than driving while their attention is focused elsewhere.

Any reasonable person will read this and realize that this self-proclaimed reasonable cop’s narrative has at least a couple of strikes against it. And that’s well before Officer Andrzejewski decided to convert this truly unnecessary non-stop into a full blown invasion of the interior of Soukaneh’s car and a constantly escalating series of rights violations.

Within seconds after Soukaneh stopped his car, Officer Nicholas Andrzejewski approached the vehicle, knocked on the driver’s side window, and according to Soukaneh, loudly demanded Soukaneh’s driver’s license. The interior vehicle light was on, so although the area was dark, Andrzejewski could see the activity inside of the car when he approached the window. As Soukaneh complied and handed his license over, he also provided Andrzejewski with a facially valid firearms permit. While doing so, Soukaneh also disclosed to Andrzejewski that, per the permit, he was in lawful possession of a pistol that was located in the driver’s side door compartment.

That this is being recounted in a court decision means the officer didn’t just take a look at the permit and wish Soukaneh a good evening. No, it went the other way. And it’s the sort of thing you need to shove directly in the eyeballs of every bootlicking person, police union rep, politician, and law enforcement official who claims police brutality only exists because people “don’t comply” and should just stop “breaking the law.” All laws were followed. Soukaneh did better than simply comply, he volunteered information. And this is what he got for being a model law-abiding citizen.

Following that exchange, Andrzejewski ordered Soukaneh out of the vehicle. According to Soukaneh’s description, Andrzejewski then violently “dragged [him] out of the car,” pushed him to the ground, yelled and screamed at him, handcuffed him, and pat-searched his person, recovering neither a weapon nor contraband. Andrzejewski then “shoved [Soukaneh] into the rear area of [Andrzejewski’s police] cruiser,” and left Soukaneh “bent over and partially on the floor of the vehicle.” Soukaneh remained “in that position, facing down and unable to see, until another police officer came along several minutes later and helped him sit up.”

Once the other officer repositioned Soukaneh in the cruiser, Soukaneh saw Andrzejewski search his “entire car, both front and rear,” as well as the car’s trunk. After the search, Andrzejewski returned to the cruiser and kept Soukaneh handcuffed and detained in it for an additional half hour, during which time “a group of seven to ten police officers gathered.” Id. At one point, Andrzejewski began writing on his onboard computer and turned to a fellow officer who had arrived at the scene and asked, “What should I write him up for?” The other officer laughed and the sergeant, who had also since arrived, told Andrzejewski what to write.

Unsurprisingly, the lower court rejected the officer’s request for immunity, pointing out that while the initial encounter may have been justified, nothing that followed that (pulling Soukaneh from the car, handcuffing him, searching his vehicle, detaining him for another half-hour while trying to figure out what to cite him with) was supported by probable cause.

The Second Circuit comes to the same conclusion. Simply being made aware Soukaneh possessed an item millions of Americans also own legally is not probable cause for anything the officer did past that point.

On the facts before us, Andrzejewski does not provide an articulable reason why he, or any other reasonable officer, could conclude that there was probable cause to believe that Soukaneh possessed his firearm unlawfully in violation of Section 29-38(a). To find otherwise would consign those validly carrying firearms pursuant to a license to automatic detention because it would effectively presume that gun permits are invalid until proven valid, or that lawfully owned guns are per se contraband until proven otherwise. Such a finding would effectively render armed individuals’ Fourth Amendment rights meaningless when they are lawfully carrying firearms.

The same goes for the officer’s attempt to invoke qualified immunity by claiming no case on point would have made him aware he was not allowed to so thoroughly and lengthily violate this person’s rights. The Second Circuit says it’s not even sure why it’s spending so much time discussing this because it’s blatantly clear what happened here isn’t permissible under the Fourth Amendment.

This is not a close case, about which reasonable officers could differ. The law as it stood at the time of the events in question left no doubt that a person in possession of a firearm and a facially valid permit for that firearm had a clearly established right to be free from the kind of forcible and prolonged detention to which Soukaneh was subjected, absent any objective reason to suspect that the permit was forged or otherwise invalid.

That covers the forcible removal of Soukaneh from his car, his handcuffing, the search of his car, and his extended detention while the officer tried to come up with something to justify his actions after the fact.

It goes back to the lower court. But I imagine it will only be there briefly before Soukaneh is offered a settlement. Hopefully, that settlement will come hand-in-hand with the firing of Officer Andrzejewski. If this is the one time he got caught, just imagine what he’s gotten away with.

Filed Under: 2nd amendment, 2nd circuit, 4th amendment, basel soukaneh, connecticut, nicholas andrzejewski, police misconduct, qualified immunity, waterbury pd

Rep. Thomas Massie Seems To Have Skipped Over The 1st Amendment In His Rush To 'Defend' The 2nd

from the unblock-people dept

This weekend, Representative Thomas Massie got an awful lot of attention for tweeting a picture of what I guess is his family holding a bunch of guns. It generated a bunch of outrage, which is exactly why Massie did it. When the culture war and “owning” your ideological opponents is more important than actually doing your job, you get things like that. Some might find it a vaguely inappropriate to show off your arsenal of weaponry just days after yet another school shooting, in which the teenager who shot up a school similarly paraded his weapon on social media before killing multiple classmates, but if that’s the kind of message that Massie wants to send, the 1st Amendment and the 2nd Amendment allow him to reveal himself as just that kind of person.

However, as someone who continually presents himself as “a strict constitutionalist,” it’s odd that Massie seems to skip over the 1st Amendment in his rush to fetishize the 2nd. That’s why the Knight First Amendment Institute at Columbia University has now sent a letter on my behalf to Rep. Massie letting him know that he is violating the 1st Amendment in blocking me and many others on Twitter.

To be honest, I had avoided tweeting about Massie’s armory family portrait, because the whole thing was just such a blatant cry for attention. But then I saw that some other users on Twitter were highlighting that Massie was blocking them — in some cases because they had tweeted at Massie a remixed version of the portrait, replacing the guns with penises. I made no comment on his photo, or his desperately pathetic desire to “own the libs” or whatever he thought he was doing. But I did tweet at him to inform him that under Knight v. Trump, he appeared to be violating the 1st amendment rights of those he was blocking.

He appears to meet the conditions laid out in that and other rulings on this issue. Massie is a government official, who uses his Twitter account for conducting official government business, and who is then blocking users based on their viewpoints.

In response to me pointing out that it violates the 1st Amendment for him to block people in this way… Rep. Massie blocked me.

Seems a bit ironic for a “strict Constitutionalist” to block someone for merely pointing out that public officials blocking someone via their official government accounts violates the 1st Amendment. But, I guess that’s the kind of “strict Constitutionalist” that Rep. Thomas Massie is. One who will support just the rights he wants to support, and will quickly give up the other ones, so long as he can be seen to be winning whatever culture war he thinks he’s waging.

This is pretty unfortunate. For all of Massie’s other nonsense, he has actually been quite good in defending the 4th Amendment rights of the American public against surveillance. Perhaps he only believes in the even-numbered Amendments?

Either way, our letter points out that his actions appear to violate the 1st Amendment, and asks that he unblocks me and everyone else that he has chosen to block.

Multiple courts have held that public officials? social media accounts constitute public forums when they are used in the way that you use the @RepThomasMassie account, and they have made clear that public officials violate the First Amendment when they block users from these fora on the basis of viewpoint. For example, the U.S. Court of Appeals for the Second Circuit reached this conclusion in Knight Institute v. Trump, and the U.S. Court of Appeals for the Fourth Circuit reached this conclusion in Davison v. Randall. The principles articulated in these cases apply here. In both of these cases, and in many others, courts have held that the First Amendment binds public officials who use their social media accounts in furtherance of official duties, and that public officials act unconstitutionally when they block individuals from these accounts on the basis of viewpoint.

Again, we ask that you unblock the Twitter account @mmasnick and any other Twitter accounts that have been blocked by you or your staff from the @RepThomasMassie account based on viewpoint.

Filed Under: 1st amendment, 2nd amendment, blocking, social media, thomas massie
Companies: knight 1st amendment institute

Joe Biden Yells A Dumb Anti-Free Speech Trope In An Uncrowded Congress

from the don't-support-censorship-joe dept

Joe Biden has never been a particularly big free speech supporter. For years, as a Senator, he consistently sided with the entertainment industry in their never-ending quest to have the government help attack free speech on the internet via aggressive and oppressive copyright laws. Throughout his campaign he railed against protected speech online that he disliked. And last night, during his first full address to Congress, he trotted out the very dangerous “fire in a crowded theater” trope:

He did it in a very dumb way too. In talking about his push for gun control, he pushed back against the idea that things like background checks and certain limitations on firearms would violate the 2nd Amendment… using the trope about the 1st Amendment:

This shouldn’t be a red or blue issue. And no amendment to the Constitution is absolute. You can’t yell fire in a crowded theater.

This is unfortunately not the first time Biden has used that line in his push for gun control.

For a decade now, we’ve been explaining why this is not a good thing to say, but apparently people need a big refresher. So, here we go.

First off, the “shouting fire” line was first said by Supreme Court Justice Oliver Wendell Holmes in Schenk v. United States. It was not a precedential statement, but rather what’s known as dicta, basically a judicial aside. Schenk was not about fires in theaters. It was about jailing someone who was morally opposed to war for handing out anti-draft brochures during World War I. If anything the statement should be seen as an example of why and how we need to better protect free speech rights, because when we don’t, and we let people aimlessly say things like “you can’t falsely shout fire in a crowded theater” it leads to jailing people for protesting war — something today we recognize as quintessential protected speech. If people knew the actual history behind the statement, it’s unlikely they’d use it.

It never had any precedential value as dicta, but even if it did, the Schenk case is no longer good law. In fact, just months later, Oliver Wendell Holmes basically changed his mind. A few years back, Thomas Healy wrote an entire book about how a bunch of his free speech supporting friends more or less convinced him that he was very, very wrong in Schenk (and a couple of other similar cases), so in the very next term, Holmes suddenly started crafting our modern concepts of 1st Amendment law, in which most speech is absolutely protected. Initially in a set of dissenting opinions (in which his colleagues on the bench continued with the original line Holmes created), Holmes realized that he was totally wrong in Schenk and began saying things like:

I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

Decades later, the ruling in Brandenburg v. Ohio effectively overruled Schenk, and began to establish the extremely limited and narrowly defined exceptions to the 1st Amendment.

These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. . . . A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.

Since then a very small number of exceptions have been determined by the courts, but they are very, very, limited. And while someone could craft a scenario in which falsely yelling fire in a crowded theater could potentially fall into one of those buckets, it is extremely unlikely and would be extremely context dependent. In general, saying “you can’t yell fire in a crowded theater” is false.

Almost universally, any time someone uses that line, they are endorsing unconstitutional suppression of speech, and trying to pretend it might be constitutional because “not all speech is constitutional.” As Ken White rightly notes, that’s what makes the use of this phrase so pernicious:

It’s an old tool, but still useful, versatile enough to be invoked as a generic argument for censorship whenever one is needed. But it’s null-content, because all it says is some speech can be banned ? which… is not controversial. The phrase does not advance a discussion of which speech falls outside of the protection of the First Amendment.

[….]

The observation “not all speech is protected” adds nothing to a discussion because it offers no mechanism for determining whether the speech at issue falls into a traditional exception or not.

In other words, the main function of using the “fire in a crowded theater” line, including in Biden’s speech last night, is to say “I’m not going to explain to you why what I want to do is Constitutional, because I can just say the Constitution doesn’t limit everything that I’d want to do.” It’s not only a meaningless statement in that it avoids the important heavy lifting of explaining why what you want to do isn’t unconstitutional, but it brushes that very issue under the rug and says “let’s not explore the issue of Constitutionality, because we can ignore it.”

And doing that while at the very same time effectively defending the jailing of someone for protesting war is shameful and certainly un-Presidential.

For what it’s worth, it appears that the “fire in a crowded theater” line was a stupid improvisation from Biden. It did not appear in the transcript the White House released prior to the speech:

One hopes that someone in the administration who understands the history and problems with that line will tell him to stop using it because it’s extremely problematic, not just in the context of the 2nd Amendment, but very much so in the context of the 1st.

Anyway… if you care about the 1st Amendment and have feelings about this line, have we got a t-shirt (and other gear) for you:

Filed Under: 1st amendment, 2nd amendment, fire, fire in a crowded theater, joe biden

Bad Analogy: Comparing Social Media To Guns

from the no,-no,-no dept

We’ve been seeing all sorts of really dumb analogies lately as people try to complain about social media. During the recent Senate hearing about social media and content moderation, Senators from both parties compared social media to cigarette smoking, somehow ignoring the fact that in that analogy the “tobacco” is “1st Amendment protected speech.” But Reuters decided to one up that and compare social media companies to gunmakers. And, if that sounds incredibly stupid as a concept, reading the actual article makes it worse. Much worse.

Guns and social networks have several things in common. Many people enjoy them responsibly, but in the wrong hands they?re dangerous. Yet both enjoy an unfair subsidy in the form of legal protections that shield them from the actions of their users. That can?t last forever.

I mean… what? The article argues that Section 230 is an “unfair subsidy” in the same way that the Protection of Lawful Commerce in Arms Act is an “unfair subsidy” to gunmakers. But, in both cases, these laws aren’t a subsidy. They’re both laws that properly apply liability to those committing the crimes, and in doing so, creating rules that help protect key Constitutional rights.

Without these shields, both industries would change radically. Gun-rights supporters claim that without PLCAA, a sector with 47,000 workers would go bust. That?s probably hyperbole. But lawsuits and safety features would impose legal costs and make guns more expensive to produce. For social media, more active moderation would mean more employees. Users would have to get more used to the idea that their Facebook or Twitter posts aren?t free.

I don’t know how changing the PLCAA would impact gun makers, but this article takes a huge fucking leap in assuming that removing 230 would “mean more employees” and “more active moderation.” After all, pre-230, the courts seemed to be zeroing in on using traditional distributor liability concepts, which would mean that there was a knowledge standard to create liability. And thus, without 230, you’d be likely to see the opposite in many cases: fewer moderators, fewer employees, and less moderation. More lawyers, though.

Or you’d get the other extreme: a few specialized sites, with very, very heavy handed moderation, which would effectively be true gatekeepers for speech, and not the open arenas for discussion we see today.

Facebook and Twitter have an edge over gunsmiths. They know their legal impunity is threatened and are trying to get ahead of the problem. Dorsey and Zuckerberg have welcomed Section 230 changes. That?s sensible, because they can help reset the rules. Compared with gunmakers, they?ll then be better equipped to survive when their magical armor is taken away.

What? Dorsey and Zuckerberg support narrowly tailored reform (mainly around transparency reporting) in part because they know that they can handle the regulatory burden to deal with the increased liability. All the smaller companies and individual websites could not.

Bad analogies are not useful in understanding how free speech works online — and comparing social media to gunmakers is particularly ridiculous. And, how does it compare to guns? In this analogy, with guns people get killed. In social media… people say dumb stuff? And that needs to somehow be regulated? Really?

It’s really not that difficult to understand how Section 230 works, and the kinds of things that would happen if it were removed. You’d think that a media organization like Reuters would at least make sure the stories its publishing would understand basic concepts. After all, as a publisher, they’re “liable” for whatever they publish.

Filed Under: 1st amendment, 2nd amendment, free speech, guns, liability, plcaa, section 230, social media, subsidy

Beto O'Rourke Joins The Silly Parade Of Confused Politicians Looking To Destroy Section 230

from the the-cult-of-what-cow,-now? dept

Earlier this year it was revealed that Presidential candidate Beto O’Rourke was a member of the Cult of the Dead Cow when he was a kid. To lots of folks in the tech world, this was a big deal. cDc was the original “hacking group.” And while it doesn’t sound like o’Rourke actually did that much hacking while in cDc, at the very least, it suggested that he was tech savvy and might actually understand the internet. Apparently not. On Friday, Beto revealed his plan to deal with gun violence — and apparently, that plan is to take away Section 230 protections from large internet companies.

If you’re thinking, “wait, what does Section 230 have to do with gun violence?” well, you’re correct. But apparently Beto hasn’t figured that out yet. The plan, in true Beto fashion, is quite short on details. Here’s what it says:

Hold Internet Companies Accountable for Hosting and Allowing for the Amplification of Hate Speech and Domestic Terrorism

* Block terrorist content online. The New York Times reports that, since 2011, a third of white extremists responsible for attacks were inspired by others who had carried out similar attacks. Yet the internet continues to serve as a breeding ground for the rise of domestic terrorists and white supremacists. Beto is calling on internet hosting companies to follow Cloudflare?s lead to not allow 8chan back online and supports the closure of 8chan, Stormfront and other white nationalist communities housed on social media platforms like Facebook and Twitter. * Require large social media platforms to create systems designed to remove hateful activities on their sites. Beto would require large internet platforms to adopt terms of service to ban hateful activities, defined as those that incite or engage in violence, intimidation, harassment, threats, or defamation targeting an individual or group based on their actual or perceived race, color, religion, national origin, ethnicity, immigration status, gender, gender identity, sexual orientation or disability. These companies also would be required to put in place systems designed to identify and act on content violating the terms of service. Platforms must be transparent when they block content and provide for an appeal process in order to guard against abuse. * Amend Section 230 of the Communications Decency Act. Beto supports amending Section 230 of the CDA to remove legal immunity from lawsuits for large social media platforms that fail to change their terms of service and put in place systems as described above. Informational service providers of all sizes, including domain name servers and social media platforms, also would be held liable where they are found to knowingly promote content that incites violence.

In short, this is exactly what I noted a few weeks ago, in which our first response to mass shootings… seems to be people focusing on stripping 1st Amendment rights. Which is just weird.

Nothing in Beto’s plan makes any sense. Let’s go through it one by one.

“Blocking terrorist content online” sounds good if you’ve got no idea what you’re talking about. As we’ve discussed, historical efforts to “block terrorist content” online has really only served to delete evidence of war crimes, including stopping researchers and archivists from tracking important information. Remember how the EU told the Internet Archive that the entire Project Gutenberg was terrorist content? I’m sure Beto’s buddies in cDc would be flabbergasted that he killed Project Gutenberg.

Furthermore, a recent study showed that taking down terrorist content wasn’t helping win the war on terrorism, but was often making it much more difficult for law enforcement to use open source intelligence to track, find and stop terrorists. How the hell is that going to help stop gun violence?

Finally, any non-government person can certainly express their opinion that platforms shouldn’t host sites like 8chan or Stormfront, but both of those host mostly 1st Amendment protected content, and thus a Presidential campaign really should not be saying that, because as President you literally cannot have a policy that silences 1st Amendment protected speech. That’s how the 1st Amendment works.

And, arguably, it’s not that difficult to trace a pretty direct lineage from Cult of the Dead Cow to 8chan — and, if anyone, Beto should know that.

“Require large social media platforms to create systems designed to remove hateful activities on their sites.” Are there any “large” social media platforms that don’t already ban hateful activities in their terms and have systems designed to remove that content? The answer is no. This is a pointless, meaningless policy demanding something that’s already been done.

The only thing in here that’s interesting is that it also says platforms should be transparent in why they block content and should have an appeals process. And, sure, that’s a good thing, but it’s also not exactly the government’s job to tell them how to do all of that. And while I’ve been a loud support of more transparent content moderation policies, I can guarantee you that government mandated transparency here would be a disaster, because it would not allow for the kind of experimentation and differential approaches that various platforms take. It also doesn’t seem to realize that, on certain platforms, when done poorly, “transparency” is just a guidebook for assholes on how to troll.

“Amend CDA 230.” This part also makes no sense. Removing liability for “large social media platforms” that don’t put in place the tools above. Um. They all do already, so what’s the point of this? And, really, I don’t think sites like 8chan would count as “large” anyway, so what’s he getting at here? Even worse, Beto commits the cardinal sin of not just confusing infrastructure providers and edge service providers, he deliberately lumps them together with this line:

Informational service providers of all sizes, including domain name servers and social media platforms, also would be held liable where they are found to knowingly promote content that incites violence.

There’s a lot to unpack there and the vagueness is a problem. If he’s only talking about content that is already outside the scope of 1st Amendment (which would be speech that incites imminent violence — he leaves out the important imminent part), then, that’s already not protected by 230 anyway. Federal criminal laws have always been exempted from 230. So, this is dumb? But if he’s trying to expand the classification of what would get internet platforms in trouble, he’s going to run into yet another 1st Amendment issue really, really quickly.

As we’ve noted previously, both Republicans and Democrats are gunning for Section 230, but (often without realizing it) for the opposite reasons. Senator Josh Hawley’s ridiculous anti-230 bill would block companies from being able to moderate at all. While Beto’s bill here would attempt to pressure them into moderating much more stringently. It’s unclear how you could possibly reconcile these two approaches — both of which are almost certainly unconstitutional.

Destroying Section 230 because you’re ignorant of how the internet works is not a partisan past time. Both of the major political parties seem to be embracing this nonsense.

Filed Under: 1st amendment, 2nd amendment, beto o'rourke, cda 230, guns, intermediary liability, platform liability, section 230, violence

Someone Impersonated New Jersey's Attorney General To Demand Cloudflare Takedown 3d Printed Gun Instructions

from the faking-takedowns dept

Buckle in, folks. Here’s a crazy one involving 3D printed guns, angry lawsuits and an apparently forged letter from the New Jersey Attorney General.

Over the past few years, we’ve been highlighting a whole bunch of stories concerning the lengths that some people will go to in an effort to block certain content online. One version that we’ve seen quite a bit in the past few years is forging takedown demands, including forged court orders. However, now we’ve seen it expand to a different arena — touching on another issue we’ve written about before. Last year (not for the first time) we wrote about the moral panic and hysteria around 3D printed guns that had resulted in a few states claiming the right to order 3D files offline.

Not much had seemed to happen on that front, until a week or so ago when various 2nd Amendment groups, including the somewhat infamous Defense Distributed (makers of 3D printer files for firearm components) filed a lawsuit, seeking an injunction against New Jersey’s Attorney General, Gurbir Grewal, arguing that he had sent an unconstitutional takedown letter to Cloudflare, which was the CDN service that Defense Distributed was using for its website CodeIsFreeSpeech.com.

In theory, this was setting up an important potential 1st Amendment case. But, on Tuesday, something unexpected happened. The State of New Jersey showed up in court to say no one there actually sent the takedown — and that they believed it was forged, and sent via a proxy service in the Slovak Republic. Really.

The Attorney General?s Division of Criminal Justice (DCJ) has concluded that a key document supporting Plaintiff?s TRO application?a ?takedown notice? purportedly sent by DCJ to CloudFlare, Inc., which hosts one of the plaintiff?s websites, CodeIsFreeSpeech.com?was not in fact issued by DCJ, and appears to have been issued by some entity impersonating the Attorney General?s Office.

The filing recognizes that New Jersey’s legislature did pass a law late last year restricting the distribution of such 3D printed instructions, but that the state’s law enforcement arm has yet to do anything to enforce it, and most certainly did not send the letter in question.

As noted, we have no reason to believe the Attorney General?s Office filed this takedown notice with Cloudflare, and our investigation thus far demonstrates the office did not do so. We have conferred with all relevant parties within the Attorney General?s Office?including DCJ and the New Jersey State Police?and there is no evidence that anyone within the Office authorized its filing. In an effort to determine who, in fact, issued the notice, DCJ assigned two investigators to review the matter, who obtained the IP address of the device used to submit the notice to Cloudflare, and learned that the IP address is associated with a server located in the Slovak Republic. This IP address is not connected to DCJ, nor would DCJ use this type of proxy server for routine communications with third parties.

Intrigue.

Cloudflare has similarly posted a blog post giving its side of the story, noting that there were some oddities with the notice, but considering that it doesn’t actually host the content in question, it followed its standard operating procedures of filing the notice along to the actual host. But then they started to notice some oddities:

A few days after we forwarded the complaint, we saw news reports indicating that the website operator and a number of other entities had sued the State of New Jersey over the complaint we had forwarded. That lawsuit prompted us to take a closer look at the complaint. We immediately noticed a few anomalies with the complaint.

First, when law enforcement agencies contact us, they typically reach out directly, through a dedicated email line. Indeed, we specifically encourage law enforcement to contact us directly on our abuse page, because it facilitates a personalized review and response. The NJ-related request did not come in through this channel, but was instead submitted through our general abuse form. This was one data point that raised our skepticism as to the legitimacy of this report.

Second, the IP address linked to the complaint was geo-located to the Slovak Republic, which seemed like an unlikely location for the New Jersey Attorney General to be submitting an abuse report from. This particular data point was a strong indicator that this might be a fraudulent report.

Third, while the contact information provided in the complaint appeared to be a legitimate, publicly available email address operated by the State of NJ, it was one intended for public reporting of tips of criminal misconduct, as advertised here. It seems unlikely that a state attorney general would use such an email to threaten criminal prosecution. On occasion, we see this technique used when an individual would like to have Cloudflare?s response to an abuse report sent to some type of presumably interested party. The person filing this misattributed abuse report likely hopes that the party who controls that email address will then initiate some type of investigation or action based on that abuse report.

Cloudflare further notes that, having learned that this notice was forged, it has now found “other abuse reports submitted from this IP address” and established “a clear pattern of fake abuse reports,” such that abuse reports from that IP will no longer be allowed.

There are, of course, some larger issues here. As we’ve noted for years and years and years — mainly with regard to the DMCA notice-and-takedown process — when you have a process that allows for notice and takedown it will get abused. Widely and continuously. Expanding notice and takedown to other arenas only means it will get abused more and more, and the abuse will become increasingly sophisticated.

We should be especially concerned about things like the EU’s Terrorist Content Regulation, which will not only deputize random law enforcement officials to send such takedowns to various platforms, but also mandate that platforms takedown any such content within one hour of the notice being sent. If you don’t believe that process won’t be abused in a similar manner to what we see above, you have not been paying attention. Giving people tools for censorship will lead to censorship, and often it will be done in very surreptitious ways.

We should be extra careful about enabling more such activity under the false belief that only the “good guys” will use such powers, and that they will only use them for good.

Filed Under: 1st amendment, 2nd amendment, 3d printed guns, 3d printing, forgery, gurbir grewal, impersonation, new jersey, takedowns
Companies: cloudflare, defense distributed

New York Lawmakers Want Social Media History To Be Included In Gun Background Checks

from the get-you-a-constitutional-violation-that-can-do-both dept

Legislation arising from tragedies is almost uniformly bad. One need only look at the domestic surveillance growth industry kick started by the Patriot Act to see that fear-based legislation works out very badly for constituents.

A few New York lawmakers are reacting to the horrific Tree of Life synagogue shooting in Pittsburgh, Pennsylvania with a gun control bill that makes zero sense. Expanding on criminal background checks, these legislators are hoping to give law enforcement the opportunity to dig through gun buyers’ online history.

Eric Adams, the president of Brooklyn Borough, and state Senator Kevin Palmer are currently writing the proposed legislation, which would give law enforcement authorities the power to check up to three years of an individual’s social media accounts and internet search history before they are allowed to buy a gun, WCBS Newsradio 880 reported. One of the main aims is to identify any hate speech shared by the users, as the politicians noted that such offensive comments are generally only discovered after mass shootings occur.

The facile explanation for this ridiculous piece of legislation is this: somehow the Pittsburgh shooter might have been prevented from buying a gun because he posted anti-Semitic content to a social media platform.

This premise will only make sense to those incapable of giving it more than a superficial examination. First off, gun ownership is Constitutionally-protected, whether these legislators like it or not. It doesn’t make sense to abridge someone’s rights over social media posts, even if the posts contain bigoted speech. That speech is also protected by the Constitution, so combining the two simply doubles the chance the law will be struck down as unconstitutional. Plenty of people engage in ignorant bigotry. Not all of them are would-be criminals.

This law would treat every gun buyer as a suspected criminal who may only take advantage of their guaranteed rights by engaging in government-approved speech. That’s completely the wrong way around. This Brooklyn lawmaker doesn’t seem to understand this inversion even when he directly, if inadvertently, addresses it.

“If the police department is reviewing a gang assault, a robbery, some type of shooting, they go and do a social media profile investigation,” the borough president pointed out.

Yes. But in these cases, a criminal act has occurred and an investigation is warranted. This legislative proposal treats gun buying as a crime and people’s social media history as some weird form of evidence. That’s fucked up, no matter how you might feel about the Second Amendment. Lots of shitposting and venting can look dangerous if viewed solely in the context of finding a reason to deny someone a gun.

Then there’s the still unaddressed question of what law enforcement is supposed to do if it decides someone’s social media posts are worrying enough they should be denied gun ownership. Are officers supposed to head out and arrest this person for being aggressively racist? Is that where this is headed? Are these legislators actually going to enable literal policing of speech?

And how is this supposed to be accomplished? Would potential gun buyers be forced to relinquish account info and passwords to ensure law enforcement is able to see everything purchasers have posted?

These are all worrying questions, none of which anyone involved with this bill seems to have answers for. Sure, it’s still early the legislative process, but these lawmakers are speaking about it publicly using specious reasoning and inapt comparisons. This suggests they like the idea they’ve had, but haven’t really thought about it past the point of “the Pittsburgh shooter posted racist memes, therefore this would definitely work.”

This quote, given to the New York Post, adds more words but no more clarity. And it certainly doesn’t do what Eric Adams claims it does:

Adams said the bills take the First Amendment right to free speech and the Second Amendment right to bear arms into the equation.

“We’re not talking about a person advertising ‘I hate a particular elected official. I hate a policy that’s passed,’” Adams said. “If there’s something that a law enforcement officer of a reasonable mind reviewed that shows this person does not hold the mental capacity to own a gun, then he should not be able to get a permit. We should use the same standard that determines whether a police officer can carry a gun.”

It doesn’t take either of those rights into account. It simply says police will now be allowed to view three years of social media history (along with search history from Google, Yahoo, and Bing) to determine gun ownership eligibility. All Adams says is it won’t be used to punish certain protected speech. (And it will be used to punish this specific protected speech because any law that can be abused by the government will be abused by it.)

To add to surreality of the proposal, Twitter For Bigots Gab won’t be included in the social media monitoring despite this being the site where the Pittsburgh shooter posted the comments these legislators point to as the impetus for this terrible legislation.

No matter how it’s pitched, it all comes down to this: no Second Amendment rights for New Yorkers if they don’t use their First Amendment rights in a way their government approves.

Filed Under: 1st amendment, 2nd amendment, background checks, eric adams, first amendment, kevin palmer, new york, social media

Ignorant Hysteria Over 3D Printed Guns Leads To Courts Ignoring The First Amendment

from the can-we-somehow-add-in-a-3rd-amendment-issue-here dept

A year and a half ago, we wrote about a troubling ruling by the 5th Circuit siding with the US State Department waving a magic “national security” wand to ignore the First Amendment implications of banning the internet distribution of the CAD files for 3D printing components for guns. As we pointed out over five years ago, the hysteria over these 3D printed gun plans was silly. Attempts to ban them from the internet wouldn’t just fail, but would actually draw much more attention to them.

However, in the last few days the hysteria has returned… and much of it is misleading and wrong, and while most people probably want to talk about the 2nd Amendment implications of all of this, it’s the 1st Amendment implications that are a bigger deal. First off, most of what you’ve probably heard about the case is either wrong or misleading. David French has a pretty good post separating fact from fiction. This is not (as some claimed) the Trump administration “legalizing” 3D printed guns. It is already legal to make guns yourself, so long as they are not undetectable. Undetectable guns are already illegal under the Undetectable Firearms Act of 1988 and nothing has changed or is changing on that front.

The issue, again, is whether or not Cody Wilson’s Defense Distributed can post the files to the internet specifically because the State Department claims that this would represent an illegal export of a weapon, violating ITAR, the International Traffic in Arms Regulation. Let’s be clear about this: throughout all of this no one (not even the US government under Obama) argued that detectable 3D printed firearms are illegal in the US. That’s because they’re legal. They have been before this and they still are. The specific issue was that the State Department sought to block the files put up by Wilson/Defense Distributed because of export restrictions outside of the US. This is silly for a variety of reasons, as already stated, because the files are already widely available all over the place, and that’s not going to change.

The 5th Circuit ruling in early 2017 was problematic, because it effectively pushed aside the prior restraint/First Amendment concerns by just saying “well, national security trumps that issue.” But, that’s not how the First Amendment works. There is no “balancing test” for the First Amendment. There is a very small and very limited set of exceptions to the First Amendment, as set forth by the Supreme Court. They do not conduct a balancing test. Indeed, in United States v. Stevens, the court explicitly rejected the idea of a balancing test.

The Government’s proposed test would broadly balance the value of the speech against its societal costs to determine whether the First Amendment even applies. But the First Amendment’s free speech guarantee does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.

So that ruling was already problematic for the 1st Amendment.

What happened here, was that the federal government settled its case with Wilson and Defense Distributed, which would have allowed him to put the files back up on the internet. Once again, to be clear, this did not “legalize” 3D printed guns. 3D printed guns are already legal, so long as they are detectable. If they are undetectable, they’ve been illegal since the Undetectable Firearms Act of 1988.

The only issues here were whether or not a court could prevent putting files (speech) onto the internet out of a fear that those files might be “exported” and turned into a weapon… and whether or not that would violate regulations against weapons trafficking.

But, never underestimate the amount of hysteria that can come from questions around both the 1st Amendment and the 2nd Amendment — and when combined things go into overdrive.

So a bunch of states sued to somehow try to stop this whole thing from going forward — though it’s unclear what there is to actually stop. Can states stop the US government from settling a lawsuit? That seems odd. Either way, at least three courts rushed forward to issue injunctions against posting the files, including Washington State, where the judge didn’t even seem to consider the First Amendment issues at hand, and issued a ruling that seems to be a classic case of prior restraint. I mean, the ruling literally doesn’t even discuss the First Amendment concerns. Instead, it argues that there’s a likelihood of success under the Administrative Procedures Act, effectively arguing that because the government is modifying the munitions list, it needs to go through a more thorough administrative process. That… seems weak, especially given the First Amendment issues at play.

Again, no matter how you feel about the 2nd Amendment, guns or gun control… that’s not really the issue here, even if it’s clouding much of the reporting on it. Nothing in this case is about legalizing 3D printed guns. It is entirely about exporting computer files that might be used by people outside of the US to make guns, but which are already widely available in many places on the internet and aren’t going to go away (note that this case only applies specifically to Cody Wilson and his organization, and doesn’t directly impact third parties who are already distributing the files elsewhere).

The real concern here should be about the First Amendment. As we mentioned earlier, in suggesting that there’s some sort of “balancing test” between national security and free speech — and that prior restraint is acceptable when balanced against national security — the courts have opened up a huge Pandora’s box of trouble. Even if you hate guns and think the 2nd Amendment should go away, please think carefully about what the world looks like when the government is allowed to censor speech that it claims is a risk to national security.

Filed Under: 1st amendment, 2nd amendment, 3d printed guns, 3d printing, cody wilson, exports, guns, itar, prior restraint, undetectable firearms
Companies: defense distributed

Congressman's Office Gets High School Student Suspended For Expressing His Displeasure With Congress

from the (202)-225-6155-/-(775)-686-5760 dept

The debate over gun control has reached new heights following the shooting at a high school in Florida. Every mass shooting prompts debate over the Second Amendment and access to guns, but this one, led by students whose classmates were killed, has more momentum than most.

Youth is wasted on the young, people say, as they note the steady decline in voter participation in younger demographics. This seems to imply more students should be involved in social and political issues, but this particular participation has been met with lots of ridicule and anger. In other words, it’s been greeted with hypocrisy, which is pretty much what we expect in heated political debates.

Nothing is more heated than the gun control debate. And everyone with an opinion is wrong. But it’s the youth that are the wrongest, and those bemoaning youthful antipathy aren’t responding very well to this sudden display of activism. Gun control-related walkouts have occurred in schools all over the nation, and students expressing their displeasure with their representatives are finding out firsthand how thin-skinned their representatives are.

A student at a Nevada high school has been punished by his school for comments he made to a Congressman’s office during a personal phone call.

[Noah] Christiansen told the Washington Post that during the walkout, his classmates passed around pieces of paper with phone numbers of legislators to call. Christiansen called the office of Rep. Mark Amodei, a pro-gun Republican, to complain, and reached a staffer in his office.

He told the Post that he said, “I believe bump stocks should be banned, the minimum age should be raised, and Congress people not already asking should get off their fucking asses and do something about gun control.”

Heated topic. Heated words. We’re all adults here, except for the student being punished by adults. Rep. Amodei’s office called the student’s school to complain about his use of the F-word. That should have been the end of it, and the only punishment handed out should have been public mockery of Rep. Amodei and his overly-sensitive staffers.

Of course, that’s not what happened. Christensen’s school responded by suspending him for “disrespectful behavior/language.” That’s just stupid. This language didn’t target the school, its staff, or fellow students. It targeted Congress in general, which is not exactly known for getting off its fucking ass and checking things off its To Do list.

No one except Christiansen comes out of this situation looking good. Rep. Amodei certainly doesn’t. Despite the ACLU’s advocacy on behalf of the wronged student, Amodei is sticking to his unapologetic guns.

Amodei defended his staffer and said no apology is necessary. The congressman said the situation was not a matter of shutting down the student’s First Amendment rights.

“I’m not apologizing because my guy accurately described what happened in the phone call,” he said.

In other words, this isn’t on me or my staffers. This is on the school because it chose to react this way to a completely unnecessary, completely retaliatory phone call made by a staffer who felt he didn’t need to put up with angry, sweary teens. But Amodei’s non-apology gets even worse. He also claims his office is in the right because it didn’t request a small parade of horribles to be inflicted on the student.

“He related the guy was vulgar,” Amodei said in a brief interview Monday. “He didn’t ask [the school] for any specific thing or beat the kid up. He just said ‘I wanted you know that this guy was really vulgar. We had a lot of calls and nobody else was,’ and that was it.”

Well, Amodei likes to dish it out but he sure can’t take it. He used plenty of vulgar language to describe his interactions with the Bureau of Land Management, according to audio obtained by USA Today.

“While I think the world of Mr. Ruhs, I’m not going to try and get between him and your deputy guy, whatever is going on with those two,” Amodei said he told Zinke. “With all due respect, I’ve been to enough rodeos to sense an issue there and let’s just move on.

“Nevada has suffered through a decade of s— BLM leadership,” he continued. “To put a strong successful leader in there for a net 18 months and then, for any reason, ship him, or let him leave to a position in Boise, is absolutely tone deaf.”

Northern Nevada’s lone congressman went on to decry “bulls—” legal provisions he said were cited by a Zinke subordinate in explaining why Amodei wasn’t told of Ruhs’ departure. That explanation, he felt, amounted to Zinke’s office indirectly telling him to “eat s—” over the incident.

That is awful. And to hear it coming from a respected pillar of the political community? It’s almost too much to bear. Someone should probably inform his office that Amodei is running around being “really vulgar.” Staffers shouldn’t be asked to beat up Amodei, probably. That would just make complainants sound as stupid as the Congressman. But his frequent vulgarity, aimed at prominent people in positions of great responsibility, shouldn’t go unnoticed. Neither should he and his office’s hypocrisy on the subject of vulgarities and who’s allowed to use them.

Amodei claims his office’s retaliatory act was meant to show the student words have consequences. They do. And Amodei is hopefully learning quickly that those in power are not immune from the consequences.

Filed Under: 1st amendment, 2nd amendment, free speech, gun control, mark amodei, nevada, noah christiansen, protests