It still amazes me that there are people out there who think that Donald Trump is a supporter of free speech. It has never been true. Anyone who looks will note that the Trump administration regularly engages in clearly unconstitutional attempts to suppress speech. But because he and his supporters like to claim he’s a free speech supporter, they believe it.

But here’s yet another story showing how that’s bullshit. The Wall Street Journal has a detailed report on how Trump’s personal secret police militia, ICE, is actively investigating, intimidating, and silencing people who criticize them online.

In recent months, ICE has deployed a round-the-clock digital dragnet to scour the public internet—from Facebook to Instagram to X—for speech that could endanger the agency’s mission. The government has paid millions to private contractors to surface everything from potential threats to agents to activities that could disrupt ICE’s operations, according to federal documents, contractors and former Homeland Security Investigations agents.

The program has ensnared U.S. citizens and activist groups that alert community members about ICE activity. Contractors prepare daily reports and dossiers on threat actors, identifying the poster’s name, location, date of birth, workplace, Social Security number, vehicle registration and criminal history when possible. 

To unmask anonymous online critics, DHS has sent hundreds of subpoenas to social-media companies, according to people familiar with the matter. Its agents have tracked down Americans at work and on the road, asking them to sign letters acknowledging their online speech about ICE “may” be a crime.

Criticizing ICE online is not a crime. It’s protected speech under the First Amendment. I’d point out that all of this clearly violates Trump’s early executive order on free speech, but did anyone ever take any of that seriously? It was always just red meat to throw out to his cultish base, rather than anything real.

Indeed, you can see that in the fact that the very same MAGA trolls who falsely insisted that the Biden admin was actively “censoring” people on social media will be quick to defend what ICE is doing here, even though it’s way more clearly an attack on the First Amendment rights of ICE’s critics.

DHS sent administrative subpoenas to Reddit for the information of 11 accounts that had posted “content critical of federal actions” between July and December of last year, the company’s most recent transparency reporting period, according to a person familiar with the matter.

While the article notes that Reddit (thankfully) pushed back on these requests, this is still quite different from the reports the Biden administration occasionally sent to social media companies, which tended to be much more “does this violate your rules?” not “reveal who these critics are.”

The article notes that these attacks on free speech appear to be ratcheting up as ICE and Trump grow more desperate to control the narrative around their secret police activities. That escalation now includes seeking grand jury subpoenas for critics’ information. And now that Trump gave ICE a lot more money, they’re investing millions in surveillance tech to track down online critics:

In the past year, OPR spearheaded an initiative to dramatically expand the agency’s ability to monitor online critics and potential threats, according to contractors, federal documents and former HSI agents.

Teams of contractors now scour the internet using sophisticated surveillance tools to find commentary that the agency regards as potentially dangerous.

ICE spending on surveillance technology and consultants has surged, reaching $258 million during Trump’s first full year back in the White House, a 57% increase from the same period a year prior, according to the Journal’s analysis.

ICE has inked at least six contracts that involve scanning public records for “threats,” paying out nearly $50 million since 2020. More than half those funds were obligated since last January, and another award potentially worth up to $50 million the agency continues to extend. The most recent awards call for contractors to help the agency geolocate individuals labeled as “extremists,” compile reports on individuals and cross-reference information with government databases, contracting documents show.

Of course, MAGA folks will claim they have to track down “threats,” but much of the content doesn’t sound threatening at all. For example:

… a New York poll worker named Paigelynne Gonyea received a voicemail from a man identifying himself as an agent with Homeland Security. 

“We were just calling you in reference to a post that we believe you made on Instagram where you doxxed an ICE agent back in January,” said the caller. 

Shortly after, two agents from ICE OPR arrived at the voting site where she was working. 

They held printed screenshots from her account, she said, including the post in question. The agents flipped by it quickly, she said, but she caught one thing: The post included a photo of Ross, the immigration officer who killed Good.

The file that agents were holding also contained Gonyea’s address, date of birth and what looked like a picture of her taken at airport security, she said. They told her to take down the post and asked her to sign a letter acknowledging she had been informed that she “may” have violated federal law with her social-media account.

Gonyea said she was only able to find one post that spoke about a specific ICE agent:  ”I think today is a great day for Jonathan Ross to be indicted!” the 40-year-old influencer and author had written in the post, referencing the Minnesota Star Tribune article that first named him. 

All of this is textbook behavior for thin-skinned authoritarians unwilling to tolerate even the mildest criticism. But in America, we’re supposed to have rights, including the right to free speech. But somehow all the people who claimed that Biden was suppressing speech have gone completely silent about stories like this one. Trump claiming to be the free speech president and claiming to outlaw anyone in the government from suppressing free speech means absolutely nothing as activities like the ones described here continue to happen daily.

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The easiest way to tell that Flock Safety doesn’t really care that its massive network of ALPR (automatic license plate reader) cameras is being abused by cops to stalk their exes and harass residents is to judge it by its actions. When confronted with court case after court case detailing these allegations (and those are just the cops who actually got caught!), the company says two things: first, we’re not personally responsible for the actions of “bad apples” and second, some vague “fixes” are on the way at some indeterminate point in the future.

The other way you can tell Flock doesn’t care about anything but future profitability is this: when cities pull the plug on Flock systems due to local backlash, Flock has — one more than one occasion! — decided to to simply turn the cameras back on.

Dayton, Ohio ended its contract with Flock following public complaints and some apparently forbidden sharing of data with federal immigration officers. But the city had to resort to covering Flock cameras with garbage bags to prevent further recordings since even the PD seemed unsure of whether or not it could actually control this function and Flock itself remained deliberately vague about when (or if!) it would be showing up to remove the recording equipment that contractually still belonged to it.

Dayton’s government had good reason to be concerned about Flock:

Last week, for example, the mayor of Menominee, Wisconsin said that Flock cameras in the city “have been activated without city council approval.”  

[…]

[Evanston, Illinois] previously ordered Flock to shut down 19 cameras (18 stationary and one flex camera that can be attached to a squad car) provided by the company and put its contract with Flock on a 30-day termination notice on Aug. 26. The company took down 15 of the 18 stationary cameras by Sept. 8, only to reinstall all of them by Tuesday. 

Neat, huh? That’s on top of an audit performed by the South Carolina Secretary of Transportation that found more than 200 unpermitted Flock cameras operating on public roads.

Now, we can add Littleton, Massachusetts to the growing list of Flock’s ALPR+DGAF activities:

Like in dozens of communities across the country, many Littleton residents were displeased to learn about the installation of Flock Safety’s automatic license plate-reading cameras earlier this year. In May, following backlash, town officials voted to shut down the six cameras on public roads.

Last week, police discovered Flock had restored power to the cameras without notifying the town.

The discovery, detailed in a Littleton Police Department notice this week, led the department to order the cameras remotely powered down, disable system login access for officers, and confirm a Flockwork order was in place to remove the cameras from utility poles “as soon as possible.”

That’s pretty fucked up. That’s Flock saying that not only is the customer never right but the customer shouldn’t be allowed to make their own decisions. It’s Flock unilaterally deciding that the rest of the nation’s users of Flock’s ALPR systems shouldn’t be deprived of access to Littleton’s cameras just because the entity paying for its services decided it no longer wanted to do business with Flock.

The Littleton PD did everything it could to abide by the vote and the town’s wishes. Flock, however, went the other way seemingly simply because it could. While PD officials have said this might have been the result of some miscommunication between the PD and Flock, it would seem an existing Flock work order to remove cameras would not have honestly resulted in this:

According to the statement, Littleton Police Chief Douglas Landry met with a Flock technician following the incident, and that “given the volume of vandalism and tampering incidents the company has dealt with nationally, it would not necessarily be treated as unusual on [Flock’s] end” to have a camera need to be turned back on unexpectedly.

Do what now? Flock was told to remove the cameras. Instead, Flock decided this meant it could flip the on/off switch as often as it wanted to until it actually got around to removing the cameras, due to vague concerns about backlash Flock has absolutely earned.

And I can guarantee you whatever things Flock is saying at this point, it’s only saying because it got caught. I have yet to see an incident where Flock has informed cities or PDs of inadvertent activation or illegal access. In every case, it’s always Flock making excuses after the fact for things it could have done more of to prevent (illegal access) or abusive things it did itself (re-activating/re-installing cameras) that contradicted the intent of city residents and their governments. These are not the actions of a trustworthy tech provider. These are the actions of a company that clearly believes it cannot be fucked with because it has managed to corner this market.

One obvious byproduct of letting what’s left of U.S. journalism consolidate in the hands of a bunch of giant corporations is the end result winds up being a feckless mess. Generally corporations don’t want to upset advertisers, ownership (usually Conservative, white, and male), event sponsors, or potential advertising targets, so their journalism winds up being hollow, performative, and toothless.

One end result of this is something I affectionately call “CEO said a thing!” journalism, which kind of looks like journalism, but generally involves mindlessly parroting whatever a wealthy executive (or politician) says without context, correction, or even third-party objective analysis.

You’ll endlessly see this in corporate press coverage of corporations and tech. But it’s more generally reflected in their coverage of all rich men. Especially guys like Elon Musk or Donald Trump, who have found it incredibly easy to manipulate what’s left of our press into parroting every brain fart they have, regardless of whether there’s any useful new information or meaningful tether to factual reality.

This has been on particularly proud display when it comes to Trump and his unpopular and pointless war in Iran, with each week bringing a new headline of a plan that doesn’t exist, a pivot that never happened, or a strategy that isn’t coherent — or even real. The U.S. press, with occasional refreshing exception, endlessly just repeats whatever Trump says, regardless of whether what he’s saying is useful, real, or true.

Media critic Dan Froomkin has it right when he calls for a moratorium on “Trump says” headlines where every statement by our mad idiot king is mindlessly repeated without context or correction:

“It’s simple: Newsroom leaders should ban headlines based on what Trump says if there is legitimate reason to suspect that he may not be relating truthful, accurate, and durable information.

I’m only a tiny bit more tolerant of the Trump “claims”, “maintains”, “blames”, and “insists” headlines, but at least those impart an iota of doubt.”

The problem is this has been going on for generations. We’re more than ten years into Trump authoritarianism and propaganda. There’s no more room for giving meaningful credence to the idea that newsrooms and top editors are doing this simply because they don’t know any better.

They do this because corporate consolidated media isn’t interested in truth-telling journalism, they’re interesting in journalistic simulacrum and infotainment kayfabe that props up the interests and values of the extraction class. The public interest, hard-nosed journalism, and a properly informed electorate is the last thing on these gentlemen’s minds.

This isn’t some funny accident and it’s not subtle. Republicans and most rich white men are treated with kid gloves by 75% of the U.S. press because the corporations that own what’s left of these companies don’t want to rock the boat. They want their latest giant shitty merger approved. Their ownership likes tax cuts. Journalism that tells the truth isn’t what they’re here for.

Froomkin remains hopeful all the same:

“Surely our top newsroom leaders don’t see themselves as being in the business of spreading disinformation. But that’s what happens when they use the headlines and the tops of their articles to tell us what “Trump says” without caveats or pushback — when their headlines and leads should instead be devoted primarily to those caveats and pushbacks.”

Froomkin is right, though I’d argue this isn’t something that a compelling letter to the editor can fix. This sort of abject cowardice is systemic and by design. And while there’s still great journalism that can occur at many modern media companies, it’s increasingly becoming the exception, not the rule. We’re not debating our way out of this. The fix is massive structural reform.

The fixes are obvious and have always been there, and they involve things large media company owners don’t like: like reforged media consolidation limits, real antitrust enforcement, media ownership diversity requirements, improved media literacy and education standards (an informed audience that demands more of our journalistic institutions can shape coverage), a restoration of U.S. public media, and creative new funding models for real independent, worker-owned (and inevitably unionized) journalism.

We’re way past the point where we can assume this isn’t intentional, or can believe that simply asking better of these companies will result in the outcomes we’re all looking for.

The Buc-ee’s trademark bullying saga continues! The company, once best known for building ridiculously enormous gas station and convenience store combinations has more recently become nearly as infamous for its bullying and litigious behavior. Buc-ee’s has a habit of suing all kinds of other businesses for trademark infringement, so long as those other businesses use cartoon animals in their logos, or have any kind of reference to beavers in their name and branding. John Oliver and his crew on Last Week Tonight recently caught wind of all of this and decided to poke the beaver in the eye, spinning up their own store featuring clothing with its anthropomorphic squirrel mascot on it and text that reads “Buc Off!”, and closed that segment begging Buc-ee’s to file suit over it all.

The company didn’t do so. Instead, they continued their trademark bullying ways and sued a small convenience store in Beavercreek, Ohio, called Beaver’s Mini Mart. Notably, that store has been doing business for many years and Buc-ee’s only recently opened a location 16 miles or so away.

If you thought this would somehow escape Oliver and his team, you were wrong. Oliver once again closed his latest show with the same topic.

But in Last Week Tonight’s Aug. 9 episode, Oliver doubled down, extending the timeline of Buc-Off merch sales in response to Buc-ee’s suing Beaver’s Mini Mart in Ohio.

“The good news is we’ve raised almost half a million dollars for Hunger Free America so far,” Oliver said. “The bad news is it doesn’t seem Buc-ee’s got the message, because apparently they’re at it again. Yep, turns out, they’re still filing lawsuits,” Oliver continued. “You might be trying to name the Buc-ee’s beaver Mitch McConnell, because it seems this b—h will not quit.”

You can see the clip below if you have an HBO subscription (the link is for the whole episode, but it should start at the 31 minute mark).

Oliver recounts several details why this latest lawsuit is so stupid. The name of the town. The way the company is pissing off the local residents and causing them to rally around the local convenience store. The bad press. And, lastly, drawing the continued ire of Last Week Tonight, which seems dedicated to continuing to point out just how shitty Buc-ee’s is being in all of this.

Oliver noted that while the Buc-Off online store was supposed to close Sept. 8, it is “staying f–king open” for as long as Buc-ee’s is suing Beaver’s Mini Mart. Chron has reached out to Buc-ee’s legal counsel for comment. 

Before the episode ended, Last Week Tonight mascot Mr. Nutterbutter made an appearance in a Beaver’s Mini Mart T-shirt. When the mascot made a sad gesture, Oliver asked if he was disappointed that the travel stop still hadn’t sued them. When Mr. Nutterbutter said yes, Oliver had words of reassurance for the giant squirrel. 

“It could still happen,” Oliver said. “Especially because our store is still open.”

I can only hope that Buc-ee’s’ plan to wait for Oliver to get bored of all of this doesn’t work.

I’ve been presenting at UC Law San Francisco Lexlab Law and AI certificate program its past several sessions, as well as some law school classes, on whether lawyers’ use of AI complies with the rules of professional conduct governing how lawyers must comport themselves or risk losing their licenses. The legal industry is keen to reap many of the benefits AI promises, such as streamlining some of the more arduous parts of the job and potentially making legal representation more affordable and/or profitable. And tech vendors are keen to profit from selling their AI systems to this market.

But neither constituency can benefit unless the way AI is used is consistent with those ethical rules. They exist for a reason—to make sure clients’ interests are prioritized and protected—and nothing about AI obviates their need or applicability. As lawyers start to roll these tools into their practice they need to make sure it’s not in a way that violates those rules, and for those vendors eager to sell their tools to the legal profession, they are going to need to make sure they are designed in a way where their use does not.

And we are not yet at a place where compliance can be presumed when AI tools are used. AI use by lawyers remains highly problematic for at least two big reasons: the current unreliability of AI outputs, and the tendency for AI to consume, store, and reuse data it is exposed to, even if that data needs to remain private. With regard to the former issue, the reliability concerns go beyond just the problem of hallucinated citations appearing in legal briefs; it is still the case that clients hire lawyers for their judgment, which so far AI still cannot replace. Maybe someday if AI has developed into something truly autonomous we could simply demand that it take the bar and be accountable to clients like human lawyers currently are, but since that day is not yet here it is critically important that lawyers not abdicate their own judgment in favor of whatever an AI tool might produce. Clients are depending on them, their lawyers, and they remain fully accountable to serve them as the profession requires.

And with regard to the data protection issue, it remains true for any tool lawyers use, AI-based or not: lawyers need to make sure that the tool use does not compromise client information, which they have a duty to protect because really bad things can happen to the client when privacy is not preserved. But AI tools in particular are notoriously greedy about collecting, retaining, and reusing whatever information they can access, unless they are specifically designed not to do so. It is thus critically important for lawyers to make sure that whatever tool they use—including and especially an AI tool—does not have the ability to mishandle or misappropriate client data to which it is exposed.

Each of these major issues then reverberates in a number of the specific ethical rules governing lawyers that they need to abide by. What follows is a closer examination of some of the ways they do.

There are a few things to note at the outset. First, there are more rules governing lawyers than what have been included in the analysis here, such as those relating to the duty to uphold the reputation of the profession, or those relating to advertising, which AI can also implicate. But the ones included are some of the major ones and examples of how AI use can rule afoul of them.

It’s also important to note that the rules can work together, and sometimes are in tension. The duty of zealous advocacy, for instance, can sometimes be at odds with the duty of candor. But AI does not itself resolve those ethical questions. Instead what is important to realize is that an AI use might implicate more than one rule.

As for the rules themselves, although they are rooted in some longstanding principles, what governs lawyers today are a set of model rules the American Bar Association promulgated in 1983 and pretty much every state has since adopted in some form. Because they can vary somewhat in how they were adopted by each state, lawyers need to consult the specific language their state has used to know how the rules apply to them, along with any other guidance and commentary their state’s lawyer regulators have produced. In fact, many states are also busy updating this guidance in order to specifically apply it to lawyer AI use (as is the ABA). But the basic gist of each rule is largely the same for all lawyers and based on the model language articulated by the ABA originally.

These rules also apply to all lawyers and not just litigators. Even transactional, or deal-making, lawyers need to follow them, and so do in-house counsel, who still have clients they owe duties towards, even if it is just one client. So when they declare, on behalf of their client—as, alarmingly, many have—that they will only hire law firms that use AI it is fair to question whether such a priority is indeed consistent with their ethical duties. Perhaps in individual circumstances such an AI-using firm might be preferable, but it won’t be universal; it will depends on the task the lawyers are being engaged to help with and what specific tools they are using. It would after all be contrary to the client’s interests to engage a firm that used an AI tool that compromised the confidentiality of the client’s sensitive information. Plus there remains the question of whether the AI tool being used is really one that can help the job get done in a way that can be trusted, let alone with the savings the client is hoping to see, given the time needed to verify its output.

Rule 1.1: Competence. If you are going to be engaged as a lawyer, you must make sure you know how to do the job, however you find yourself called to do it. Traditionally the duty of competence has, for example, meant that a lawyer could not take on a matter in an unfamiliar area of law, like criminal defense when they were an estate planner (or vice versa), but the rule is not limited to just those situations. Case hallucinations strike at the heart of it, for instance. If you are advocating for a client, you need to know the law relevant to the client’s situation, and if you are submitting hallucinated cases that don’t exist, it strongly suggests that you do not, or else you would have known they were imagined. Which is one reason AI cannot suddenly expand the types of matters a lawyer can take on—it’s simply not reliable enough on its own. The lawyer will still need to know when it is giving good answers and when it is not, but if the lawyer does not already have that competence themselves, then they won’t be able to make that determination.

There is also a related concept that is becoming more and more important to the legal profession: technical competence. Do you know how to effectively use the tools you are using? The answer needs to be yes, particularly to ensure that your tool use is not creating problems you were not aware of, especially with respect to protecting client data. As discussed further below, lawyers have a duty to protect client information, which means they need to know how to use their digital tools properly to ensure it remains protected. Concerns about technical competency predate AI, given the risk of potential hacker exfiltration, but they apply just as readily to an AI system exposed to client data that may then train on it.

Rule 1.3: Diligence. This duty goes hand in hand with the duty of competency but requires a bit more. It’s a lawyer’s job to do the job. And the whole job, not just the bits of the job they like best. One supposed promise of AI is that it can increase the volume of matters a lawyer can take on. But can it actually? Because on each matter it will still be the lawyer’s judgment on the line. So while AI might offer some time savings on certain tasks associated with a representation, and that might seem to create capacity to take on more matters, the lawyer will still need to have the bandwidth to competently provide any representation they’ve been engaged to provide. There are physical limits to what one lawyer can do, even with the help of AI, and especially given that they still need to be able to review whatever results an AI tool might give them to help along the way and that supervisory function will also require time.

This diligence rule also incorporates the general lawyer duty of zealous advocacy. Before relying too heavily on an AI tool, one needs to ask whether an AI can actually itself deliver zealous advocacy. Can it deliver all the strategic thinking needed to look out for the client and their objectives in evolving circumstances? And would whatever it recommended also comport with the rest of the ethical rules? If the AI can’t meet all those requirements—and it’s doubtful whether any truly can right now—the lawyer will still need to.

There is also a new wrinkle developing with respect to this rule and case hallucinations: increasingly courts are imposing a duty on litigators to police their opponents’ briefs for false citations. If they do not, they may not be able to recover fees for litigating against the fiction once they are finally brought to the court’s attention. Diligence appears to now require that sort of review (although in some instances it is framed as part of the duty of competence).

Rule 1.4: Communications. Clients are entitled to be kept apprised of how things are going with their representation and be able to contribute to it. On the one hand, if AI does create some time savings for lawyers, it may help ensure they have more time to communicate with clients. But if AI is used in a way that replaces lawyer judgment, and, worse, is applied to tasks where it performs them in a way that lacks adequate transparency, then clients won’t be given enough information such that they can assist with their own representation. The lack of transparency is especially an issue for agentic AI, where instead of manually working with an AI a step at the time the lawyer is trusting the AI to do a more complex task, because the AI may not even realize that it needs to report out what it has already done and be able to get more input before proceeding.

Furthermore, applying AI to client communications themselves also raises the risk of exposing confidential client information. Such a task would inevitably require the AI to learn about the client in order to know what to tell them, but if what it learns does not stay local to the law firm then its confidentiality is no longer protected.

Rule 1.5: Fees. This rule requires lawyer fees to be reasonable, which some have suggested may require using AI. The thinking is that if technology makes some lawyer tasks more efficient, it would be unreasonable to bill for the time taken to perform the tasks without the technology. And as a general proposition this view may be correct: we may, for instance, no longer consider it reasonable to bill for the time needed to research in a law library when so much information is now digitized. But it does not follow that using AI is similarly necessary to use, especially not when there are so many issues still associated with its use. Indeed, it’s even questionable whether it can provide true savings given that lawyers must still take the time to review anything resulting from an AI tool before it is relied upon. Perhaps in some in some situations there can be a savings, but, given the current state of the technology, the savings are not nearly certain enough at this point to support the inference that AI use is something that must be implicitly required.

There also is a side issue of when the costs associated with AI use can be passed through to a client. The answer may depend on guidance from the specific state regulating the lawyer, but there is some precedent, from the period when lawyers started regularly adopting Lexis and Westlaw research tools, and on fixed subscription rates, that technology services that are paid at a flat rate cannot be pro-rated among clients, and only costs directly associated with a client’s representation can be passed through to the client on their bill, at least not without the client’s prior written consent.

And it should not need to be said, but apparently, given some known cases it must be: if the AI use does in fact result in a time savings, then the client gets the benefit of those savings. Lawyers cannot bill for the time it would have taken to perform the task without the AI, only the time it did take, even if it went faster thanks to the AI.

Rule 1.6: Confidentiality of Information. This rule, in many ways, is the ballgame. If a technical tool, including AI, cannot protect the confidentiality of client communications, then it cannot be used by lawyers.

This rule is broader than attorney-client privilege, although AI that doesn’t protect client confidentiality may fail to protect attorney-client privilege as well. The principle behind this rule is that clients can’t get effective representation from their lawyers unless they can be candid with them. Which means that lawyers end up as vessels for all sorts of sensitive information that clients need to feel safe divulging. This rule helps make it safe for them to divulge it. It also applies to any information a client divulges, including their identity. If any such information is going to be shared with an AI, it can only be with an AI tool that can be trusted to maintain its secrecy, which means likely not uploading it anywhere and certainly not using it for any later purpose that won’t be local, such as training.

Which right away means that general purpose, freely available AI tools more than likely are unsuitable for legal work. There has already been at least one judicial ruling finding that the terms of service of one such tool dispelled any reasonable belief that confidentiality would be protected. It is incumbent on lawyers—including as part of their technical competency—to review the terms of service and privacy policy of whatever AI tool they want to use to understand if there’s any danger of information associated with the client’s representation leaving the control of the lawyer. It will also likely necessitate lawyers using only paid versions of AI products in order avail themselves of ones with terms of service that are adequately protective—and it will need to be only the right paid product, as there can be critical differences in privacy practices even among one vendor’s family of paid products. Which does unfortunately raise the issue that it may be only large law firms who will be able to afford using AI products that provide adequate assurance on an enterprise level, and smaller firms only able to afford “business” packages will be left out of being able to use AI.

There is also the unfortunate situation that clients may already be inadvertently waiving their own potential attorney client privilege by uploading information to AI systems—especially free ones—to ask them questions or even just have them collate their information into a more usable form. In addition to the issues associated with relying on the AI’s output, it means their private business may have just been absorbed into the larger system and now be discoverable by others. This ship may be sailing before clients engage their lawyers, but once engaged lawyers may have an obligation to educate their clients not to use AI this way because it risks losing attorney-client and work product protection, and as a practical matter may make information findable by an adversary. In fact, consider whether as part of a lawyer’s zealous advocacy they might have the obligation to ask AI about their opponent’s business, to see what information has already been revealed. On the other hand, lawyers should be aware that courts are considering whether their own AI prompts may be discoverable. Perhaps not, as work product or privileged, but it is an evolving area.

Rules 1.7-1:11: Conflict of Interest. Conflicts of interest are of serious concern to the lawyering profession. We need to make sure that lawyers are committed to zealously advocating for their clients and not pull their punches out of a sense of loyalty to someone else or some other interest. How AI may implicate these rules is something still developing, but one way to be aware of again relates to protecting client confidentiality, because it is conceivably possible that if an AI trains on client information, it may learn sensitive information about that client that later AI use may reveal, possibly in a context adverse to them.

Rule 3.3: Candor toward the Tribunal. This rule is about the integrity of the legal process. We’ve built a system where the idea is that with all the facts and law on the table, we’ll be able to reach a just conclusion. Reality may or may not be so simple, but this rule is about making sure the process has the best quality of facts and law available to it.

On the facts front, concerns are coming up more often, such as in the context of AI-generated police reports, and we’ve even had occasions where expert reports ended up with hallucinations, and another occasion where a lawyer was just trying to get AI to format a citation, and instead the AI went ahead and hallucinated a whole cited source. There is also a report from Brazil where a lawyer wrote a brief with hidden white-on-white text intended to do an injection prompt on any AI system the brief was run through. The court deemed it an act “offensive to the dignity of justice” and the lawyers were sanctioned.

And then there is the question of hallucinated law, which seems to be an epidemic. Note that the issue here is not just invented citations for fake cases but bad summaries of holdings from actual cases, or otherwise invented quotes. Even taking AI off the table this rule about candor already obligates a lawyer to disclose to the court adverse authority. This obligation persists even in the face of the duty for zealous advocacy, although it can provide an opportunity for effective advocacy to be so candid because if that adverse authority is out there, the opponent might dig it up, so the duty to be candid gives the lawyer the ethical space to get out in front of it and try to minimize its effect. But the point of this rule is to make sure the court has the benefit of all the law it needs to consider in reaching a just result, which is why it would violate it to give it hallucinated law that at best obscures applicable law, if not outright deceives the court.

The strange thing though is that it apparently needs to be said that not only should lawyers not deceive courts by submitting briefs with hallucinated citations, but, once called out for it, the solution is not to double-down and submit even more hallucinations in briefs arguing why the lawyer should not be sanctioned for the first hallucinations. Oddly, such behavior seems to be happening a lot, and these cases are where the resulting sanctions have so far been most severe.

Rule 3.4: Fairness to Opposing Party and Counsel. This rule joins the duty of candor to also help make sure our adversarial system can function. But it applies to more than just legal filings; it is intended to discourage obstructive strategy altogether, including by not depriving opponents of evidence they are entitled to.

Which matters, because one use of AI is in support of document review and production. Quicker and more cost-effective document review is a white whale many hope AI can finally slay, but there is a danger in presuming that it has already replaced the need for human review. It may be able to make it more efficient by clumping up documents based on the likelihood of them being relevant or privileged, but there are consequences to not getting attorney judgment to make the final call, including potentially waiving privilege, overproducing, or under-producing and ending up subject to sanctions. And the risk remains: as the AI is learning, what is happening to the client information it is learning?

Rule 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers. It is not enough for a lawyer to just be ethical on their own; they are also responsible for the ethical conduct of those who work with and for them. Courts are increasingly sanctioning not just lawyers who have submitted briefs with hallucinated citations but also their bosses and law firms, as well as co-counsel. Law firms need to have policies about what AI use is acceptable and make sure everyone is trained on it, which also means that if someone wants to use a new tool, it has to be vetted first to make sure it can be trusted by any lawyer at the firm. Furthermore, lawyers need to be judicious about what other lawyers they co-counsel with or sponsor for pro hac admission to their local court, because any name on a brief will be responsible for its content.

This supervision obligation is also why lawyers cannot simply rely on output an AI tool generates; they must verify it. And they must use non-AI systems to do it, so that if bad information has corrupted the original AI tool, the system that’s used to verify the results won’t be vulnerable to the same corruption.

Rule 5.3: Responsibilities Regarding Nonlawyer Assistance. Supervisory duties do not just involve other lawyers; lawyer are also responsible for non-lawyers who work with and for them. For instance, if a firm secretary steals client funds, the lawyers are on the hook, because it is there duty to make sure such things don’t happen. It also means they need to manage vendors that they would outsource any work to, such as printers and document review vendors, as well as any technology vendors, including AI vendors, all of whom need to be vetted to see if they can be trusted with the sensitive material they will inevitably work with.

Rule 5.4: Professional Independence of a Lawyer. There’s also a rule that law firms can’t be owned by non-lawyers. The reason for this rule is the same as the reason for the conflicts of interest rules: it is critically important that lawyers have no incentive to do anything but zealously advocate for their clients. The fear is that, if firms could be owned by non-lawyers, then the profit pressures felt by owners without these other ethical concerns would overtake that client-first orientation. But especially in periods, like now, where there’s a gold rush to invest in certain technology and offer equity and other financial incentives to underwrite it, there ends up being a lot of pressure put on this rule, with lawyers being tempted to sell equity stakes in their firms, and non-lawyers being keen to buy them. But the rule exists for a reason. Legal representation is so important to liberty and due process that a right to it is enshrined in the Constitution. Whereas no one is owed the profession as a profit center, nor could society afford for it to be recast as a normal profit-seeking business, which would come at the expense of the critical constitutional purpose we need it to serve.

Rule 5.5: Unauthorized Practice of Law. The unauthorized practice of law is ultimately defined mostly by local law, but the model rules themselves say that only those with licenses and subject to bar regulation are entitled to practice law. There have already been instances with some AI vendors trying to be hired to advise and litigate cases, in pretty clear contravention of this rule and associated local law. Plus there are states trying to pass bills preventing chatbots from dispensing legal advice.

The tricky thing is that it’s not always clear what is meant by dispensing legal advice. And there is some tension between these rules and access to justice concerns—in some situations it may perhaps be better to have a non-lawyer with some relevant expertise help people, rather than them potentially going without any support at all. But non-lawyers could get clients into a lot of trouble with ill-informed advice, and the same danger exists with AI. Some of these new tools, especially when well-designed for the legal realm, may be useful. But some, especially those of general purpose, are frequently terrible, and yet people still try to use them for legal advice and depend on unreliable if not completely wrong advice—in addition to risking the disclosure of private information in ways that may also tempt trouble.

In any case, lawyers certainly shouldn’t be letting AI tools dispense legal advice through their practice. When they get output from an AI they need to make sure it is output that is appropriate to rely on. Which is why the idea of AI providing significant savings seems such a dubious proposition, because either the lawyer is spending the time researching themselves, for instance, or, consistent with their supervisory duties, they are spending the time reviewing the research the AI produced, and in a system that itself is not AI and thus subject to the same information corruption issues.

AI is not yet in any sort of fit state where anyone can afford to rely on what it produces as the final, correct word on anything. Maybe someday it will be, but until we are sure that day has arrived, the ethical rules governing lawyers prevent clients from being unwilling beta testers. Even when lawyers get knowing, written consent from clients to use AI—which would be a best practice anyway—there are still pitfalls everywhere. And even if AI use is something clients may think they want, it may still be something lawyers are obligated to advise against.

The reaction to Mark Zuckerberg’s 6,500 word AI manifesto, “The Future is for Everyone,” has been all over the map. Given the messenger and the topic, there’s plenty of reasonable skepticism. 404 Media called it “deranged.” TechCrunch pointed out that Zuck’s manifesto is “exactly why people don’t like AI.” But then you have groups like Fight for the Future (certainly no fans of Zuck) pointing out that Zuck is right about the importance of open source AI and the perils of centralization.

And they can all be right. As with any 6,500 word manifesto, there are plenty of things in the screed that are silly or out of touch. But there are a few important things, including on decentralization and open source. Ignoring the silly framing of “superintelligence” (a marketing term doing a lot of load-bearing work for tools that are, so far, getting pretty good at automating certain tasks, and still really bad at lots of other stuff), he repeatedly calls out his concerns about having these new tools be too centralized:

The notion that AI is so dangerous that the only safe path is an extreme concentration of power seems inherently problematic. Historically, hoping that an absolute power will benevolently provide for humanity if sufficiently enlightened has not led to safe or positive outcomes.

And, sure. I mean I’ve written a lot about this exact thing recently. But, um, it’s Zuckerberg and Meta that I was warning about.

Because in the social media realm, Mark Zuckerberg is the guy who is most responsible for taking us from an open, decentralized web where anyone could build to a closed, centralized data silo where if you tried to build on top of it, he’d sue you out of business.

So forgive me for not taking him seriously here. Warning that an “extreme concentration of power” is dangerous, and that hoping such a power “will benevolently provide for humanity if sufficiently enlightened” never ends well, seems like an astounding lack of self-awareness of Zuckerberg’s own role in centralizing the social internet, and positioning himself as society’s benevolent overlord.

It seems the only reason he’s pushing this vision now is… he’s losing the AI race. Badly. Funny how Zuck apparently discovered the perils of concentrated power at almost exactly the moment Meta stopped being the concentration of power that mattered, as the center of gravity shifted from social to AI.

Same with his support of open weight models. I’ve been talking about that as well for quite some time, and agree with basically everything he says here:

It is also important that the US and its allies lead the open source AI ecosystem that will make up a large percent of global AI use.

Foreign labs currently hold several advantages here since American labs have to comply with many additional restrictions on training data. US policy must reduce this additional friction if we want American open source models to lead over time. I do not believe restricting access to foreign open source models is an effective solution. Our goal should be for American open source models to be the best globally. This requires removing the hurdles that make it harder for American open source models to compete. Restricting people and companies from using the leading open source models — wherever they come from — will reduce the quality of AI accessible to them, and centralize AI rather than putting more power in people’s hands.

For the US to lead in open source, we will need to rethink our policies in several areas, including distillation and data use in training. The ability for models to learn from other models is an important principle of how the open source ecosystem works. All AI models are derived from human knowledge. Some have tried to frame distillation as harmful, but I think it is important to protect the principle that you can learn from anything you can observe. This is how the world works, and the US will not be able to lead if we restrict ourselves on this front.

But, again, Zuckerberg is the exact wrong messenger, and clearly not someone you can trust. While Meta has (like any big tech company) released and supported certain open source projects that are widely used today (mainly React and PyTorch), the company’s willingness to support openness almost always seems purely for the sake of market positioning.

Take, for example, Meta’s supposed support of the decentralized ActivityPub standard with Threads, its microblogging platform. The company initially announced that it would be building on the wider open social web and would contribute back to ActivityPub. This was positioned as being done for the good of the wider open social space. The more cynical take was that Meta knew it was way behind some others, and needed a hook to catch up. But as Threads became more successful, the company basically put that whole effort into “maintenance mode,” after the head of Threads gave an interview more or less admitting that ActivityPub integration just wasn’t that important to them any more.

And that’s before we get to the genuinely nutty parts — like the thought experiment where everyone having a superintelligent lawyer produces fairer justice rather than an unprecedented legal arms race, or the section where the answer to communities worried about data centers is a “community compact,” illustrated with $50,000 teacher bonuses in Louisiana.

Is it nice that Zuck is mentioning decentralization, less concentration of power, and open source? Sure. It’s better than the alternative. And, it’s great that Meta is now releasing new open weight models, meaning that both Google and Meta have released decently sophisticated open models that can run locally and that can compete with some of the powerful Chinese open models.

But do I actually think that Zuck cares one bit about those things? We have twenty plus years of data showing he cares about them right up until the moment he can exploit them to concentrate his own power and control.

None of that makes the good parts of his manifesto wrong. Open weights absolutely matter. Distillation restrictions are bad policy. Concentrating this stuff in three or four companies is a terrible idea. But those things were obviously true before Zuckerberg discovered them, and they’ll stay true after he abandons them.

So sure, welcome to the open, decentralized revolution, Mark. But we all know you’ll be the first to switch sides if you have the opportunity. On this stuff, principles matter and you’ve shown you’ve got none.

When Trump FCC Boss Brendan Carr isn’t trampling free speech or harassing major networks for platforming comedians, he’s been illegally taking a hatchet to whatever’s left of media consolidation rules and telecom consumer protection oversight.

While he’s been pretty effective at this, Carr would find it even easier to convene meetings and hold agency votes if he had a full 3 member Republican FCC majority. So last Friday he appointed Danielle Thumann Severs, his own longtime personal legal aide, to fill the empty spot. She’d basically be there to do whatever Carr (and Trump) tell her to do.

Like, say, illegally help broadcasters consolidate. Or undermine the agency’s cybersecurity policies. Or collude with right wing executives to manufacture controversies in order to harass media companies that platform politicians Donald Trump and Trump Republicans are afraid of.

Technically Democrats are supposed to hold two FCC commissioner spots as a sort of counterbalance. But unsurprisingly, Carr has made no moves to appoint lone Democratic FCC Commissioner Anna Gomez (who has been a very vocal critic of Carr’s sloppy censorship efforts) to another five year term, nor fill the second vacant FCC Democratic seat.

Democrats have responded by stomping their feet a little:

“If President Trump wants to fill these positions, he should do them in a bipartisan way,” Sen. Ben Ray Luján (D-N.M.), the top Democrat on Commerce’s telecom subcommittee, told POLITICO. “I would certainly hope my Republican colleagues on the committee want to see some semblance of balance as well. Because who’s going to be the next president?”

Republicans do not, it should go without saying, “want to see some semblance of balance.” Over at the FTC, you might recall Trump illegally fired both Democratic FTC Commissioners, and is now just waiting for his lackey-stacked courts to change the law to suit his authoritarian whims (there are some interesting legal differences between the agencies here you may find useful to read about). And should Democrats regain the presidency, it’s very unlikely they respond with any sort of bare-knuckled political retort.

A fully-stocked Dem majority can’t do much beyond publish the occasional press release, but they can throw some procedural sand in the gears of Carr’s mindless deregulation and censorship efforts, which cumulatively can and do matter.

Ideally what guys like Brendan Carr want is an FCC full of bobble-heads to rubber stamp his censorship and “delete delete delete” agency “modernization” agenda, the latter of which often gets obscured in the press by his ham-fisted assault on journalism and the First Amendment. Prison monopolies, telecom monopolies, right wing broadcasters, and robocall scammers have been big fans of these efforts.

Severs has a tight window for confirmation given the looming midterms, but Republicans have a knack for getting their own terrible commissioners quickly confirmed, while center-right Democrats (like Joe Manchin) help Republicans delay and destroy the nomination of actual, popular reformers that work in the public interest (recall what happened to Gigi Sohn’s appointment to the FCC) via circular firing squad.

Some of the Democrats whining because Carr has failed to seat new Dem Commissioners contributed to that railroading of Sohn, I should point out. So it’s hard to believe these same Dems will respond to Trump and Carr’s illegal appointment blockade with much beyond a stern talking to and ambiguous calls for a return to “bipartisanship.”

Here, as with everywhere else, the Democratic party is in desperate need of a meaningful rebuild.

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The current president continues to self-destruct. Fortunately for us, he insists on doing this publicly.

After handing a donor and an unproven company the massive job of redoing the Lincoln Memorial Reflecting Pool in “American flag blue” in hopes of being able to use it to celebrate himself during America’s 250th birthday, everything went tits tints up. The lining fell apart. And the “American flag blue” was soon replaced by an “Antifa Frog green” influx of algae.

Rather than demand an explanation from the no-bid contractors or simply decide to shift his focus elsewhere, Donald Trump immediately claimed (without evidence!) that this was the work of anti-American vandals. Trump’s claims were immediately echoed by both Interior Department head Doug Burgum and DC US Attorney Jeanine Pirro. While all three insisted there was tons of damning evidence to support their outlandish claims, to date not one of them has produced anything remotely resembling a smoking gun.

Instead, we’ve been (mis)treated to malicious prosecutions that were immediately abandoned after the government’s own star grand jury witness said the damage supposedly caused by vandals was actually the result of shoddy workmanship.

Pirro did the right thing and dismissed charges against the Reflecting Pool defendants, starting with former Olympian David Hearn — the only one of the defendants facing a felony charge. Trump wanted Hearn cuffed and stuffed as a trophy of his ability to beat the truth at its own game.

Pirro went to bat for herself and threw Burgum under the bus following these dismissals. But that didn’t stop both Burgum and Trump from continuing to insist the Reflecting Pool failures were the work of vandals, all while publicly verbally assaulting Pirro for doing the same thing both of these men are doing: trying to save their own asses.

To this day, Trump continues to insist mountains of evidence exist. But the administration’s smoking gun more resembles a weapon purchased on layaway that it has yet to make a payment on. And after several days of being undercut by facts in literal evidence, Trump has finally changed his tune… a bit.

“There was substantial damage to the Reflecting Pool, also but, unfortunately, there is no video or proof, other than the damage, itself,” he wrote on Truth Social. “We are working on the Pool, and it will reopen shortly. As with many jobs, there was also some contractor error done by rushing the job for a July 4th opening, but it was a very small area of this massive Pool, and was relatively inconsequential.”

These are surprising admissions, given the source. Not only does Trump admit (while doing as much downplaying as possible) that some damage might be the result of his no-bid contractors, he has also admitted the government has no evidence to support criminal charges against anyone.

That admission gives credence to Pirro’s claims during the DOJ’s dismissals — that the DOJ had been misled by Doug Burgum and his DOI lackeys to believe evidence existed to support the charges. But that hardly excuses Pirro, who basically insisted that everyone the DOJ had charged was guilty AF during her appearance on Fox News earlier this year.

Whatever Pirro did or didn’t know at the point she decided to start pursuing these investigations may become public knowledge in (hopefully) the near future. Not content to just let Trump, Pirro, and Burgum walk away from a handful of revenge prosecutions performed for the sole purpose of allowing Trump to punish other people for his own failures, members of the House Judiciary Committee are mobilizing the system of checks-and-balances to find out who knew what and when. Greg Sargent has the details for The New Republic:

Democrats on the House Judiciary Committee are set to launch an investigation into the decision to criminally charge Hearn and others over the Reflecting Pool fiasco, I’m told. Although Democrats are in the minority, their probe offers a blueprint for what they’ll pursue with subpoena power if they control the House in six months.

This week, Representative Jamie Raskin—the ranking Democrat on the Judiciary Committee and potentially its future chair—will formally demand that the Justice and Interior Departments turn over a wealth of documents related to the charging decisions made in this case.

While it’s true this will run into considerable opposition from GOP Committee members, it’s not like the minority party has to ask permission to open investigations. However, they will need some Republican support if they want this investigation to be anything more than symbolic.

But that’s not the only pressure the Trump DOJ is facing. David Hearn’s case may have been dismissed (but notably, without prejudice, which means the government can always try again), but his lawyers aren’t quitting. They’ve been demanding grand jury documents for weeks.

Eisen and Hearn’s other lawyers are not letting this drop. For some time now, they’ve been seeking access to full transcripts of the grand jury proceedings—including instructions that prosecutors gave jurors on charging guidelines—to determine whether prosecutors misled them to secure Hearn’s indictment.

Trump obviously wants to keep this thing alive. He may live to regret this decision. The people opposed to him and his actions want the same thing, but for the purpose of pursuing justice, rather than — like Trump and his administration — hoping to pervert it further.

For all the talk of “reforming” or “repealing” Section 230 in Congress, the fact is that the courts over the past three or four years have effectively chipped away so steadily at the law that it’s lost a significant chunk of its usefulness. The latest comes from the Ninth Circuit, which ruled earlier this week that Section 230 is not, in fact, an immunity from lawsuit, but merely a defense against liability. This may sound like a procedural technicality — and, indeed, the coverage of this case from the likes of Reuters covers it as a boring procedural story — but it’s a huge deal.

To get there, the panel had to rewrite the history of Section 230 and wave off a whole stack of its own prior rulings as either sloppy word choice or mere dicta.

To understand why this ruling is such a big deal, you first have to understand Section 230’s true benefit: it would get bogus cases tossed at the earliest moment. This is the entire key to why Section 230 is important. The point of Section 230 is to put the liability on the party actually violating the law — which would be the creator of the content, and not the intermediary tool they use to host/distribute that content. But the mechanism used to protect speech is that it gets the cases against intermediaries dismissed very early (aggrieved parties can still sue the actual speakers).

If it didn’t do this, the vast majority of the benefits of Section 230 would be lost. Indeed, in one of the many early Section 230 cases, the Ninth Circuit’s Alex Kozinski colorfully described why Section 230 immunity was so important in the famous Roommates case:

Websites are complicated enterprises, and there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality. Such close cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged—or at least tacitly assented to—the illegality of third parties…

Every bit of that bolded section is important — and it’s what the court is now ignoring. First, it’s Kozinski not just calling out that Section 230 provides “immunity” but that without it, we would “cut the heart out of Section 230” by “forcing websites to face death by ten thousand duck-bites.” Kozinski was exactly correct, and Section 230’s authors, Ron Wyden and Chris Cox, have said he got it right (I was at a conference years ago where both Cox and Kozinski were present, and when Cox said this interpretation was correct, Kozinski made a joke to the effect that it wasn’t often that a priest got word directly from God that his interpretation of the scriptures was correct).

The operative aspect of 230 is that it’s an immunity that gets rid of those cases early. Because without that, the mere threat of litigation would force many websites to simply remove content to avoid the cost of going through litigation. That’s the duck bites part of this.

And part of what’s important about it being an immunity is that if the district court refuses to dismiss the case on Section 230 grounds, you can immediately appeal that (“an interlocutory appeal”) to the appeals court to say that the district court got this wrong… rather than having to go through the entire litigation process (the thing you’re supposed to be immune from) and then telling an appeals court about the error. By not allowing an interlocutory appeal, it would do away with the element of Section 230 that makes it so effective.

Yet, on Monday, the same Ninth Circuit basically said “eh… nope.” Yes, the ruling was specifically procedural, but it was procedural on that point. Meta and TikTok — and, by extension, every other company facing these suits — have to get pecked to death by ducks first, and only afterwards can they tell an appeals court they never should have been pecked at all. The “procedural” rejection by the Ninth Circuit means that more than 3,000 lawsuits filed against these companies can move forward. It’s not (yet) the full ten thousand duck bites Kozinski warned about, but it’s in the ballpark. And we’re already seeing those duck bites in action.

What’s incredible, though, is just how confused the panel is about all of this. Judge Jacqueline Nguyen, writing for the court, starts by getting the history of Section 230 wrong:

The drafting history adds weight to the view that Congress employed a belt and suspenders approach. In the House bill, where section 230 originated, subsection (e)(3) contained only the first sentence. See H.R. 1555, amend. 744, 104th Cong. (1995), 141 Cong. Rec. H8469 (daily ed. Aug. 4, 1995). In reconciling a competing bill, the Senate adopted the House proposal “with minor modifications,” including what is now the second sentence. S. Rep. No. 104-230, at 194 (1996) (Conf. Rep.). It would be surprising if these “minor modifications” included the addition of immunity from suit.

However, as Jeff Kosseff — literally the guy who wrote the very comprehensive book on the history of Section 230 — notes, Judge Nguyen is exactly wrong.

Kosseff notes that his book goes through this, though so does the law review article he published a few years ago, which details how Section 230 changed during the conference committee and how it was, deliberately, about making internet intermediaries immune from lawsuits. He points out that while the initial draft of the law was supposed to prohibit the FCC from regulating the internet, during the reconciliation process, they deliberately “clarified the intention to preempt litigation” by adding in that “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

If it was just about being a defense against liability, they would not have included “no cause of action may be brought.” But the ruling this week claims that Congress was just being superfluous there:

Meta argues that the phrase “[n]o cause of action may be brought” implies immunity from suit because reading it to provide immunity from liability would render the phrase “no liability may be imposed” superfluous. Id. § 230(e)(3). Not necessarily. Congress may have included “cause of action” to encompass suits for injunctive and declaratory relief, since “liability” could be read to encompass only damages. At the same time, Congress may have prohibited the imposition of “liability” to encompass orders by state administrative agencies, which may not involve causes of action. Whatever Congress’s reason for including both phrases, “sometimes the better overall reading of the statute contains some redundancy”

The ruling this week then dismisses all of the many other times that the Ninth Circuit (and other courts) said that 230 was an immunity from suit by basically saying “eh, previous courts were sloppy with language” along with “and when we said that it was never that important.”

It is true that we have used the phrase “immunity” somewhat loosely in our section 230 jurisprudence; although we generally describe it as “immunity from liability,” we sometimes describe it as “immunity from suit.” But none of this usage is binding, because we have never addressed whether the denial of a section 230 defense is a collateral order…

In a footnote, the ruling lists off many (though not all) of the times the same Ninth Circuit has said “immunity from suit.”

See, e.g., Lemmon v. Snap, Inc., 995 F.3d 1085, 1087, 1090 (9th Cir. 2021) (describing section 230(c)(1) as immunity “from . . . suit” and “from liability”); Barnes, 570 F.3d at 1099–1100 (stating that section 230 “protects certain internetbased actors from certain kinds of lawsuits” and that it “protects from liability”); Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1173, 1175 (9th Cir. 2009) (describing the statute as “plainly immuniz[ing] from suit” and providing “protection . . . for civil liability”); Carafano, 339 F.3d at 1122, 1125 (referring to “immunity from liability” and “immunity from suit”).

So, in order to reach this result, the Ninth Circuit needed to reinterpret and dismiss both many prior Ninth Circuit cases, claiming they were just sloppy with their language and the literal text of Section 230, again insisting that the “no cause of action may be brought” was just the drafters being redundant, rather than the much more likely (and as Kosseff’s history has shown, accurate) interpretation that the law was literally written to prevent intermediaries from having to face these kinds of lawsuits entirely.

It is true that the Tenth Circuit (and only the Tenth Circuit) has also ruled this way, but the Ninth Circuit has way more impact because a huge number of internet companies are based in California, which is covered by the Ninth Circuit. And many other circuits have ruled the other way. In Nemet v. ConsumerAffairs, the Fourth Circuit talked about “a sphere of immunity” created by 230 and points out that:

Section 230 immunity, like other forms of immunity, is generally accorded effect at the first logical point in the litigation process. As we have often explained in the qualified immunity context, “immunity is an immunity from suit rather than a mere defense to liability” and “it is effectively lost if a case is erroneously permitted to go to trial.” Brown v. Gilmore, 278 F.3d 362, 366 n.2 (4th Cir. 2002) (quotations omitted) (emphasis in original). We thus aim to resolve the question of § 230 immunity at the earliest possible stage of the case because that immunity protects websites not only from “ultimate liability,” but also from “having to fight costly and protracted legal battles.”

In the Sixth Circuit, in the Dirty World case, the court quotes the Eleventh Circuit’s Almeida v. Amazon ruling to note:

The majority of federal circuits have interpreted the CDA to establish broad “federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.”

So while the Ninth Circuit argues that this is some sort of novel issue… it’s simply not. Other than the Tenth Circuit in that one case, almost every other court (including the Ninth Circuit itself) has always held that Section 230 provides for immunity from suit, which as the record and the authors make clear, was exactly the point.

Technically, the panel isn’t wrong that none of those other cases squarely held that a 230 denial is immediately appealable. Courts aren’t bound by things they assumed rather than decided. But there’s a difference between “no court has ruled on this” and “every court to touch this for thirty years, plus both authors of the statute, absolutely understood it the same way to the point that they never needed to directly say so.” The panel treats three decades of consistent understanding as if it were a typo.

And while this latest ruling notes that this is fine because the court can always “revisit the issue of section 230 immunity at a later stage of the proceedings,” once again that destroys the very point of 230. This new ruling even points out that the district court is skeptical the plaintiffs even have a case here:

The court expressed its “skepticism” about plaintiffs’ ability to proceed on their “novel” failure-to-warn theories in light of section 230 but allowed the claims to proceed “for now” given that the litigation was at an “early juncture” and the law regarding section 230 immunity was “in some flux.”

But, once again, that’s the entire point of Section 230! To end these weak cases early!

Indeed, going all the way back to the Roommates case that we mentioned up top, where Kozinski coined his duck bites line, what was most memorable about that case is that the ruling denied Section 230’s protections to Roommates.com over one feature (though dismissed other claims because of it). And Roommates then had to spend four more years litigating the case… only to still win many years, and many millions of dollars later.

That, on its own, shows how important 230 is in getting rid of cases early. The whole point is that most of these kinds of cases are losers for their plaintiffs in the long run on First Amendment or other grounds. The benefit of Section 230 is that the companies don’t have to waste many years and many millions of dollars to get to that final conclusion. But the Ninth Circuit, apparently no longer caring about death by ten thousand duck bites, now says that such cases are free to proceed without interlocutory review at the very point it matters most.

Now the internet companies have a choice: they can ask the entire Ninth Circuit to review en banc, even as that’s a crapshoot with its current roster. They can ask the Supreme Court to weigh in, when we already know a few of the Justices hate Section 230. Or, they can submit to the first 3,000 duck bites, and see if they survive.

Which is the real irony here: for all the years of congressional threats to gut Section 230, it turns out the courts are the ducks, and there’s less of the law left after every bite.