You stroll into your favorite food-jobber, looking to pick up a few things on your way home from work. Lots of people are on their way home from work. There are lines at every register and someone is in the self-checkout with $600-worth of groceries, beginning what will eventually become a 30-minute stop-start process that could have been handled in a five minutes by even the most incompetent cashier.

That’s when you start considering your options. Do you take the slightly shorter line manned by yet another interchangeable teen who is only working a register because the manager scrambled help to the front — one who would otherwise just be at the back of the store milking the clock while pretending to stock the milk? Do you head towards a more reliable cashier of a much more advanced age, but one you know will ultimately annoy you with a blend of weather and politics small talk during what you hoped would be a quick in-out to restock a few consumables? Or do you go to the cashier you know can handle it all — someone who not only values your business but your time, and can infer from context whether you’re up for a bit of chatting during the transaction or just want to get out and go on with what’s left of your day?

Well, the bad news is that some tech firm wants to convert the relationship you’ve built with your favorite cashiers into something inherently suspicious. And it wants to do this because retailers are claiming people engaged in theft generally head towards employees willing to help them engage in theft. And while the latter is undoubtedly true, the suspicification (yes, it’s now a word) of normal interactions between long-term employees and regular customers will undoubtedly result in customers finding somewhere else to shop and great employees finding somewhere else to work. Of course, facial recognition tech is involved, because it always is.

Here’s Todd Feathers with the details (what there are of them at this point) for Gizmodo:

About a month ago, Israel-based Corsight AI began offering its global clients access to a new service aimed at rooting out what the retail industry calls “sweethearting,”—instances of store employees giving people they know discounts or free items.

Traditional facial recognition systems, which have proliferated in the retail industry thanks to companies like Corsight, flag people entering stores who are on designated blacklists of shoplifters. The new sweethearting detection system takes the monitoring a step further by tracking how each customer interacts with different employees over long periods of time.

I don’t doubt that “sweethearting” is a problem. Whether it’s a problem worth dumping money into unproven tech and even more specious assumptions about whose spending too much time with which employees is far more speculative. And there’s no better way to tell the CEO of Corsight (Shai Toren) doesn’t do that much shopping of his own than by reading the statement he provided to Gizmodo.

“If you go into a shop and you pick up a few groceries, usually you would pick any of the cashiers that is around and you go scan your goods,” he said. “When someone is planning a sweethearting theft, they will always go to the same cashier, which is most of the time a relative of theirs, and this is an anomaly in the behavior compared to the other customers. Our system is able to identify this anomaly and alert on that.”

But that’s not what actually happens, especially when someone is a frequent customer. Frequent shoppers know which employees are fast and efficient and which ones will just slow things down for them. Someone going to the same cashier may indicate theft is in the offing. But just as often, it may only indicate regular shoppers know where to go first for the best service.

On top of that, there’s no evidence this is something that can’t be handled by existing technology. It has been decades since I’ve been in a store that doesn’t have a camera aimed directly at each and every register. If that tech can’t stop “sweethearting,” it’s unlikely that expanding surveillance to treat each and every shopper as equally suspicious is going to improve anything. And it’s guaranteed to chase away frequent shoppers, who are bound to be pulled aside by loss prevention staff at some point and questioned about their “suspicious” desire to interact only with certain employees. It’s also going to result in the loss of these companies’ best front-line employees, who won’t like being treated like criminals just because so many regulars seek them out during their shopping trips.

A union representing lots of retail workers also raises another good point: when commissions are part of the pay structure, maintaining nearly-exclusive relationships with repeat customers is essential to these workers’ income. Shoving this tech where it’s not needed will just punish retail workers for being good at their jobs.

“We have a lot of concerns about this type of technology given that a lot of our members work on commission so the idea is that you are building a book of business based on relationships with customers,” said Chelsea Connor, communications director for the Retail, Wholesale, and Department Store Union (RWDSU). “Whether or not they work on commission, [stores] push sales people to develop those relationships because that’s what brings people back to brick and mortar as opposed to buying online.”

All of these are compelling points that make it clear shoehorning even more surveillance into the retail “experience” will mostly produce negative outcomes. Then there’s the tech itself, which is still terrible at capably identifying people who aren’t white and male and now is being expected to make assumptions about human behavior based on little more than their preference in cashiers.

Any retailer that decides to buy into Corsight’s bullshit deserves every hit to the bottom line it takes because of this. It’s not going to stop the theft it claims it will stop — at least not to the extent that it will offset losses caused by people deciding to take their business elsewhere because they don’t feel like being treated as presumptive criminals just because they patronize the same businesses and employees repeatedly. Worse, they’re going to lose their best employees — the ones capable of building relationships with long-term customers — and replace them with a revolving door of disinterested replacements overseen by tech that says it can recognize faces while pretending it can also generate meaningful information about human relationships in a retail environment.

Not only is Corsight misleading its potential customers with its overstatements, it’s deluding itself into believing this is a service retailers consider so essential they’ll continue to spend money on it even after it fails to justify its ongoing existence.

It remains incredible to me that we sometimes have to rely on the nutty Fifth Circuit to correct the even nuttier “MAGA favorite” judges who issue the stupidest decisions in court cases. But now they’ve done it again, as the Fifth Circuit has pointed out that, no, RFK Jr. does not appear to have standing to sue Joe Biden because Facebook moderated some of his anti-vax nonsense.

This will take some background coverage to get to where we are.

If you’ll recall, Missouri and Louisiana sued Joe Biden, falsely claiming that the White House engaged in a campaign to censor conservatives on social media. They filed this in a federal court where they knew they’d get Trump appointee Judge Terry Doughty, who appeared to deliberately wait until July 4th (a day the courts are closed) to issue a truly wacky opinion, who also took a bunch of nonsense, lies, and conjecture as proof of a grand conspiracy to censor conservatives.

The Fifth Circuit rejected a lot of Doughty’s nonsensical injunction, but did leave some of it in place (at one point, bizarrely, reissuing its decision and saying that one part of the government, CISA, that it initially said hadn’t done anything wrong, had in fact done something wrong, but the Court chose not to tell us what).

Eventually, the case made its way to the Supreme Court (under the name Murthy v. Missouri), where both lower court rulings were effectively tossed out. The majority, led by Justice Amy Coney Barrett, made it clear that the plaintiffs had no standing, particularly because they couldn’t show that any content moderation efforts by the social media companies had anything to do with actions by the federal government. As the Supreme Court said:

The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation. The District Court made none. Nor did the Fifth Circuit, which approached standing at a high level of generality. The platforms, it reasoned, “have engaged in censorship of certain viewpoints on key issues,” while “the government has engaged in a yearslong pressure campaign” to ensure that the platforms suppress those viewpoints. 83 F. 4th, at 370. The platforms’ “censorship decisions”—including those affecting the plaintiffs—were thus “likely attributable at least in part to the platforms’ reluctance to risk” the consequences of refusing to “adhere to the government’s directives.” Ibid.

We reject this overly broad assertion. As already discussed, the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct. In fact, the platforms, acting independently, had strengthened their pre-existing content-moderation policies before the Government defendants got involved.

Meanwhile, while all of this was going on, pretend-free speech supporter RFK Jr. had been running around to multiple courts trying to sue over the fact that Meta had moderated some RFK Jr. related content. Those cases (there are multiple ones) haven’t gone well at all. Perhaps seeing an opportunity to piggyback on the Missouri/Louisiana case, he filed a similar case in the same district and tried to connect the cases. Judge Doughty put that effort on hold until the Supreme Court process played out.

Once that was done, RFK Jr.’s lawyers insisted that any plain reading of the Murthy ruling was that while maybe the others in the case didn’t have standing, clearly he did. His explanation for this was complete and utter nonsense, but in Judge Doughty’s court, that’s enough. A few months back, Judge Doughty insisted that RFK Jr. had done enough to show standing and his case against the Biden admin could proceed.

As I noted in my writeup of this ruling, Judge Doughty came to this by completely misrepresenting a ton of information regarding how the world works.

Thankfully, the Fifth Circuit has now stepped in to vacate that decision, slap Doughty on the wrist, and suggest he try again.

RFK Jr. relied heavily on two declarations: one from Mary Holland, the head of RFK’s anti-vax organization Children’s Health Defense (CHD) and one from Brigid Rasmussen, the chief of staff for his doomed political campaign. The court notes that the Supreme Court had clearly instructed lower courts in the Murthy ruling that they need to show pretty clear “traceability” of actual government actions leading to private companies’ decisions to moderate.

While Doughty skipped over the details and said “sure thing, looks like censorship to me,” the three-judge panel here (Higginbotham, Stewart, and Haynes) realize that RFK’s claims are just as weak as everyone else’s involved in this case. Neither of the new depositions show anything approximating traceability. Indeed, the court notes that the deposition seems pretty similar to declarations that the Supreme Court already rejected in this very case.

The Court in Missouri explained that “the vast majority of [the White House’s] public and private engagement with the platforms occurred in 2021, when the pandemic was still in full swing” and that “the frequent, intense communications that took place in 2021 had considerably subsided by 2022.” Id. at 1994. The Court also noted that, “in April 2023, President Biden signed a joint resolution that ended the national COVID–19 emergency” and “[t]he next month, the White House disbanded its COVID–19 Response Team, which was responsible for many of the challenged communications in this case.” Id. at 1995. Regarding the CDC, the Court concluded that “the risk of future harm traceable to the CDC is minimal” because “[t]he CDC stopped meeting with the platforms in March 2022.” Id. at 1994. Although “the platforms sporadically asked the CDC to verify or debunk several claims about vaccines,” “the agency has not received any such message since the summer of 2022.”

Plaintiffs argue that because the CDC and Kennedy continue to be censored, their situation is distinguishable from Missouri. Missouri demonstrates the flaw in that argument. There, “the plaintiffs and the dissent suggest[ed] that the platforms continue to suppress their speech according to policies initially adopted under Government pressure.” Id. at 1995. The Court responded as follows:

[T]he plaintiffs have a redressability problem. . . . The requested judicial relief . . . is an injunction stopping certain Government agencies and employees from coercing or encouraging the platforms to suppress speech. A court could prevent these Government defendants from interfering with the platforms’ independent application of their policies. But without evidence of continued pressure from the defendants, it appears that the platforms remain free to enforce, or not to enforce, those policies—even those tainted by initial governmental coercion

Plaintiffs here have the same redressability problem.

We therefore conclude that the Holland declaration does not establish standing

As for the Rasmussen declaration, she’s got the same problem:

Rasmussen describes a series of content-moderation actions taken by social-media platforms against the Kennedy campaign and its supporters. But she does not trace any of the platforms’ content-moderation actions against Kennedy back to the government.

All of this was obvious when it was presented to Judge Doughty. The Justice Department explained this to Judge Doughty, but he ignored it. Now he has to find out about it from the Fifth Circuit. How embarrassing.

RFK tried to make a bigger deal by trying to argue that he had standing since he was a political candidate for president (sorta) and the White House was trying to suppress his campaign (a thing they were not actually doing). Again, the judges are not impressed:

Here, the only new election-related evidence is the Rasmussen declaration. But the declaration does not cure the traceability problem from Missouri because it does not allege any government action that is responsible for suppression of Kennedy’s campaign content. Kennedy must therefore rely on the same “speculative chain of possibilities” as Hoft in Missouri. Id. (quoting Clapper, 568 U.S. at 414). That chain does not become any less speculative if the FBI states that it will continue to communicate with platforms regarding election misinformation. If anything, Kennedy’s chain of possibilities might be even more speculative now that he has suspended his presidential campaign, a fact of which we may take judicial notice.

Again, it’s pretty incredible how much bullshit Judge Doughty was willing to rubber-stamp, even to the point that an entire three-judge panel at the Fifth would issue a per curiam “nah, dawg, that’s not how it works” ruling.

End result:

We therefore conclude that Kennedy lacks standing to seek a preliminary injunction for his claims concerning election-related content.

Because Plaintiffs lack standing to seek a preliminary injunction against Defendants, we VACATE the preliminary injunction and REMAND to the district court.

It will not surprise me at all if Judge Doughty comes up with some other method to keep this case going. He really seems to love ignoring reality to bless a fantasy world, made-up, nonsense case in which the Biden administration is actively telling social media sites who to censor and those social media sites are eagerly complying (again, something that has not happened).

But, at least for now, RFK Jr. is back sitting on the outside looking in. Something he should get used to.

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This is tentatively welcome news. I mean, it can’t result in anything worse than the original decision the Fourth Circuit handed down in the Chatrie case, which said there’s nothing constitutionally wrong with searching every Google user’s location info in hopes of finding the suspect law enforcement is actually looking for. (via FourthAmendment.com)

The Appeals Court took the Supreme Court’s Carpenter decision that created a warrant requirement for obtaining cell site location info over a long period of time and took that to mean that the location info law enforcement eventually obtained in the Chatrie case wasn’t worthy of Fourth Amendment protections.

[W]e find that the government did not conduct a Fourth Amendment search when it obtained two hours’ worth of Chatrie’s location information, since he voluntarily exposed this information to Google.

So, the lynchpin here was the length of time, even if the court expressed its reservations about the use of warrants that treat everyone in Google’s location database as a criminal suspect until proven otherwise, something the dissent pointed out in the court’s July 2024 decision:

[G]eofence intrusions are even broader than the intrusion in Carpenter because there is no limit on the number of users police can include in a geofence. With CSLI, police at least had to provide a specific phone number to search, so they had to identify a criminal suspect before they could pry into his or her historical CSLI data. By stark contrast, geofence intrusions permit police to rummage through the historical data of an unlimited number of individuals, none of whom the police previously identified nor suspected of any wrongdoing. Indeed, the very point of the geofence intrusion is to identify persons whose existence was unknown to police before the search.

In the end, though, the majority thought the intrusion in Chatrie’s movements was limited enough, it didn’t raise further constitutional issues. What was never really up for discussion was the constitutionality of the geofence warrants themselves, which allow the government to treat everyone as a suspect while trying to back into the probable cause needed to target only specific suspects.

This unexpected en banc rehearing is likely due to a more recent appellate decision — one handed down by the Fifth Circuit (yeah ikr?) in August, which said geofence warrants are themselves unconstitutional. These warrants are the “general rummaging” that was directly addressed by the Fourth Amendment. Just because it’s a warrant doesn’t mean it’s a lawful warrant, especially not when they’re deployed this way:

When law enforcement submits a geofence warrant to Google, Step 1 forces the company to search through its entire database to provide a new dataset that is derived from its entire Sensorvault. In other words, law enforcement cannot obtain its requested location data unless Google searches through the entirety of its Sensorvault—all 592 million individual accounts— for all of their locations at a given point in time. Moreover, this search is occurring while law enforcement officials have no idea who they are looking for, or whether the search will even turn up a result. Indeed, the quintessential problem with these warrants is that they never include a specific user to be identified, only a temporal and geographic location where any given user may turn up post-search. That is constitutionally insufficient.

Given the timing, there can be little doubt the Fifth Circuit’s take on this issue is forcing the Fourth Circuit to reconsider its own take. The Fourth Circuit limited itself to considering whether the data eventually obtained with a warrant constituted a Fourth Amendment violation.

The Fifth Circuit’s decision, on the other hand, makes it clear the end point of vague, exploratory and, yes, “general” warrants isn’t where the constitutional conversation should start. It should actually begin at the point the government commences its investigatory work: the first geofence warrant delivered to Google that requires it to search its entire database of location data under the shaky legal theory that there’s probable cause to believe Google may possibly discover location data investigators can use to create a list of suspects.

If the Fourth Circuit rolls back its inquiry to match the Fifth Circuit’s starting point, it’s hard to see how it will arrive at the decision that geofence warrants are constitutional. If it decides the rest of this inquiry isn’t worthy of discussion, it’s just going to end up back where it started, only with a lot more wasted time and effort. At worst, nothing changes. But at best, it could generate precedent that the Supreme Court won’t be able to ignore (for better or worse).

Recent Supreme Court rulings have thrown most U.S. regulatory enforcement into operational and legal chaos. The dismantling of Chevron, with the Loper Bright ruling in particular, now dictates that regulators can’t implement new rules or reforms without the explicit approval of Congress.

Two problems: one, regulators ideally have very specific subject expertise Congress doesn’t have (think about Ted Cruz trying to craft new rules managing wireless spectrum). Two, Congress has been lobbied into corrupt dysfunction, ensuring these theoretical, better, clearer laws and reforms never actually arrive.

Corporations (and the various policy tendrils employed to parrot them) have dressed Chevron up as some noble rebalancing of institutional power. In reality they’ve just taken a hatchet to what’s left of U.S. corporate oversight. Corporate lawyers know they’ve effectively lobotomized Congress. Now they want to dismantle what’s left of federal regulatory oversight. When that’s done, they’ll take aim at state power.

It gets dressed up as some sort of sophisticated ethos, but the goal for corporations has always been the absolute unchecked accumulation of unlimited wealth, free of any government intervention, regardless of the market, labor, or human cost. A lot of ink gets spilled pretending otherwise.

It’s with that backdrop that ISPs and the FCC have started squaring off in court in the latest skirmish over net neutrality. You’ll recall the Republican-stocked 6th circuit put the FCC’s restored net neutrality rules on ice last August. Last week, ISPs and the FCC started having their arguments probed by a three court panel comprised of one Trump appointee and two George W Bush appointees.

Historically, precedent has suggested that the FCC has the authority to classify/reclassify ISPs as common carriers or enact/repeal net neutrality provided they do so within the confines of the Telecom Act and use basic, supporting data. As the EFF notes, Post Loper Bright, that’s all out the window, and the goal for industry is to be able to abuse their regional telecom monopoly power without government opposition:

“These companies would love to use their oligopoly power to charge users and websites additional fees for “premium” internet access, which they can create by artificially throttling some connections and prioritizing others.”

As usual, the telecom industry is claiming that the FCC is abusing its authority to restore net neutrality. You’re to ignore that the telecom industry routinely argues that absolutely any effort by the FCC to do absolutely anything is an abuse of power. If the Sixth Court doesn’t accept the industry’s argument, it heads to the Trump-stocked Supreme Court, where they’ll likely get a sympathetic ear.

All the coverage and analysis I see focuses a bit too myopically on net neutrality. To be clear the FCC isn’t just fighting for net neutrality, it’s fighting for the right to be able to engage in consumer protection at all under current law, whether that’s the policing of unfair usage caps, trying to end racial discrimination in broadband deployment, or trying to stop your cable company from ripping you off with shoddy fees.

Post Loper Bright, telecoms are going to argue that any consumer protection effort by the FCC is an abuse of power well outside of any interpretation of the Telecom Act, and with a court system stocked with Trumpists with an active disdain for precedent, they’re likely to win their arguments more often than not. That’s going to create legal chaos, chill federal willingness to protect users, and punt most broadband consumer protection to an inconsistent platter of state consumer protection efforts.

So far the courts have repeatedly ruled that if the federal government abdicates its responsibility to protect broadband consumers, states have the legal authority to fill the void on net neutrality (or anything else). But we’ll see how long those efforts hold up once an industry (that spends $320,000 every day on lobbying) shifts the entirety of its attention to dismantling state authority.

The story playing out with net neutrality isn’t restrained to telecom. Some variant of this is going to be playing out across every consumer protection effort across every industry and issue that touches your lives.

Because consumer protection is generally deemed as boring, and the “regulatory state” has been demonized as useless for a generation, I still don’t think the public, press, or policy folks have fully fleshed out what our new reality means for everything from labor rights to public safety.

But it’s going to be anything but boring when the real-world impact of Trump’s Supreme Court Loper Bright ruling starts having cascading and potentially fatal impacts across the country over the next few years, at which point a lot of people are going to suddenly be wondering how exactly we let it get to this point, and why people didn’t speak up earlier in a bid to stop it.

Those of you who are video game fanatics like me know the feeling. There’s a brand new gaming console on the way and every couple of days you do some googling for updates, release dates, or any kind of news on it. The manufacturers of these consoles often do a drip campaign when it comes to releasing information about the new console, while millions of fans hang on the edge of their seats, desperate for reveals, news, whatever we can get our hands on. And just like me, you’re probably in this headspace right now. You know a new console is coming, but all the news coming out from the source of the console is about unrelated things.

What? The Nintendo Switch 2? That’s what you thought I was talking about?

No, I want to know when the hell I’m going to get the Russian gaming console, one that was to rival PlayStation and Xbox consoles, and one that was supposed to be released over the summer.

See, after the gaming industry of the West largely pulled out of Russia, or at least restricted what Russian citizens could buy and play, Vladimir Putin ordered two Russian companies to produce a Russian rival to Sony and Microsoft gaming consoles by June. Of 2024. And that edict was delivered in April, three months before that due date.

Per a report from the Russian newspaper Kommersant, the order was handed down from the Kremlin to “consider the issue of organizing the production of stationary and portable game consoles and game consoles.” Kommersant’s sources tell the nationally distributed Russian paper that the VK Group, a major Russian tech company behind the similarly named social media service VK, will be largely responsible for the project. The production of consoles will be handled by the GS Group, which was previously known as General Satellite and is the single largest Russian developer of set-top boxes.

In the infamous words of Judge Smailes:

Unless I somehow missed it (I didn’t), Russia has yet to announce the release of the SputnikStation 1 or whatever they would call it. No word on any progress on a console that I can find, mobile or otherwise. No first party titles announced for production. No hardware specs put on display. In fact, it looks for all the world like the two companies tasked by Putin to create these consoles ignored the order all together. That’s not a great look for an iron-fisted dictator, I would think.

What one of the companies in question, VK, managed to get out the door was a website that merely lets Russian players stream Nintendo games illicitly.

The site in question is VK Play, a video game platform run by VKontakte. And VKontakte, also known as VK for short, is a Russian social media website based in St. Petersburg. VK has faced prior controversies from the massive copyright infringement that happens in it. They have subsequently faced legal threats and had to resolve these issues with their own copyright tracker and IP reporting system.

This page, translated by Google from Russian to English, clearly shows, among other things, a link to play [several Nintendo games] in the cloud. So it’s possible what’s happening here is that this website is connected to a server farm with actual Nintendo Switch consoles running these games.

Alternately, they could be running this on a server farm filled with emulators running Switch. The latter scenario might sound like the better option, since they could run Switch games on more powerful hardware. But it runs the risk of compatibility issues.

While we’ve come to expect this from the kleptocracy that is Russia, this hardly delivers on the command from Putin. This is merely more grift from a country that has openly embraced said grift.

I suppose I could continue to wait for whatever this Russian console might be, but somehow I’m having a hard time imagining a console, any console, from coming out anytime soon.

Here’s a final election day story. This time, it’s about an “election integrity” app being used by MAGA folks to spread absolute nonsense about the election, but also to confess their own illegal voter suppression schemes. And thanks to their crap security, it’s now being reported.

At a time when the facts-optional GOP likes to flip everything on its head (calling legitimate reporting they dislike “fake news,” or basic editorial decision making “election interference”), they’re now using “election integrity” as the term to mean “here’s how we best violate free and fair elections.”

The group True the Vote, which has been behind a ton of election conspiracy theories, created an “election integrity app” called “VoteAlert” that they encouraged the MAGA faithful to use to report any fraudulent election activity they came across. True the Vote is the group behind the ridiculously stupid “2000 Mules” conspiracy theory film (you know, the one widely promoted by Trump loyalists, but which its very MAGA publishing company later felt the need to retract, remove, and apologize for?)

Yet, as Wired points out in an article today, the app’s security was so piss poor that it exposed all sorts of private info of those using the app, including emails and the submitted comments by users. That allowed Wired’s excellent security reporter Dhruv Mehrotra to take a look at what people were using the app for, and apparently, “committing actual voter fraud” was on the list:

In a since-deleted VoteAlert post reviewed by WIRED, a user wrote: “I’m probably going to be fired for this but I was hired by the Riverside County Registrar of Voters as an Election Officer in Hemet, CA. Since I’m in charge at this polling center, I’m asking for citizenship ID of anyone that looks suspiciously like they’re not here legally.”

The post went on to suggest that the Riverside County Sheriff’s office wouldn’t intervene in her scheme. “It’s just a drop in the bucket but I’m going to do my part to stop election fraud,” she wrote. “Wish me luck”

WIRED traced the email associated with the post to a California woman who describes herself as a person who is “FED UP with all the bullsh*t,” according to one app profile. “You’re only getting the hard, smack-your-face TRUTH from me.”

That is all very much illegal. You can argue over voter ID laws, but the fact is that California does not have one and it’s against the law to check citizenship status in California. And, no, this does not mean that non-citizens are voting. There are other systems that root that out, and what non-citizen is going to risk their presence in the country to vote?

Once again, it seems that every time we hear about claims of “voter fraud,” they seem to be coming from the MAGA world, accusing the Democrats of engaging in it. However, the very, very, very minimal number of cases of actual voter fraud being discovered almost always show it actually being conducted by MAGA folks who have been lied to and misled by Trump and others into believing the Democrats are doing it, thereby justifying their own illegal activities.

Bad people make good case law. That’s just how our criminal justice system works. And so it is here in this decision, which flows from criminal charges that, in turn, flow from proactive efforts meant to thwart the sharing of child sexual abuse material.

In this case, Ryan Maher was convicted of CSAM possession. Having been informed of the chain of events leading to his arrest, Maher challenged the warrant used by law enforcement, claiming it was tainted by previous unconstitutional intrusions.

Like almost every service provider, Google checks users’ emails for hash values indicating known CSAM images. It passes these hashes on to NCMEC (National Center for Missing and Exploited Children), which then decides whether or not to pass this information on to law enforcement. Google is also welcome to pass on this information on its own — something it informs email users it might do if it detects illegal content.

That’s what happened here, as the Second Circuit recounts at the opening of its decision [PDF]. But the government overstepped when it decided to perform a further search without acquiring a warrant. (h/t Volokh Conspiracy)

No one at Google visually examined the contents of the Maher file before reporting it to the National Center for Missing and Exploited Children (the “NCMEC”) as “apparent child pornography.” Rather, that report was based on a computer-conducted algorithmic search of the Maher file, which identified a match between the hash value for the image contained in the Maher file (the “Maher file image”) and the hash value of an image (the “original file image”) that Google had earlier located in another file (the “original file”). Thus, when law enforcement authorities visually examined the contents of the Maher file, they went beyond the scope of Google’s private algorithmic search in that they learned more than the hash value for the Maher file image; they learned exactly what was depicted in that image.

This extra step prior to obtaining a warrant meant the government couldn’t claim it was just the innocent beneficiary of a private search. Google didn’t actually view the image that matched NCMEC’s hash values. It actually wasn’t viewed by anyone until investigators opened the file to verify its contents.

As the court goes on to note, the original tip might have provided probable cause, but New York State Police investigators should have used this probable cause to obtain a warrant, rather than deciding it didn’t need to obtain a warrant until after it had performed its own search.

In these circumstances, Google’s hash match may well have established probable cause for a warrant to allow police to conduct a visual examination of the Maher file. But, for reasons stated in this opinion, we conclude that neither the private search doctrine relied on by the district court nor the Google Terms of Service agreement cited by the government authorized the police to open the Maher file and to conduct such a visual examination of its contents without a warrant.

Normally, courts will just allow the “private search” assumption to carry the day and refuse to suppress unlawful searches performed by the government. In this case, that argument falls flat, mainly because the government — for whatever reason — chose to attack the suppression motion from a rather novel angle.

The government didn’t argue there was no reasonable expectation of privacy in the contents of Maher’s emails — an argument that would have persuaded no judge anywhere, even if Maher disclaimed ownership of the CSAM image discovered in his email account. Instead, it pitched its own interpretation of the Third Party Doctrine: one that posits that because Google informs users the company might “review content” in Gmail accounts, the government is free to do pretty much the same thing without a warrant.

Not so, says the Appeals Court. What someone may agree to share with a private company to utilize a service is not a blank check for similar intrusion by the government. The court doesn’t go so far as to draw a bright line, but it says enough to indicate the existing lines are bright enough the government should know better than to cross them.

We need not here draw any categorical conclusions about how terms of service affect a user’s
expectation of privacy as against the government. On this appeal, it suffices that we conclude that Google’s particular Terms of Service—which advise that Google “may” review users’ content—did not extinguish Maher’s reasonable expectation of privacy in that content as against the government.

[…]

Nor is a different conclusion compelled by the fact that Google’s Terms of Service also warn users that the company “will share personal information outside of Google if . . . reasonably necessary to[] . . . [m]eet any applicable law.” (emphasis added). As noted supra at 7 n.5, federal law requires electronic service providers such as Google to file a report with the NCMEC when they have “actual knowledge” of child pornography on their platforms. 18 U.S.C. § 2258A(a)(1)(A), (B). But the same law specifically does not require Google “affirmatively [to] search, screen, or scan” for such material. Not surprisingly then, Google does not tell users that it will engage in the sort of content review for illegality that could trigger disclosure obligations under § 2258A(a)(1)(A), (B). Rather, it tells users only that it “may” engage in such review. Indeed, in the next sentence, Google emphasizes that it “does not necessarily . . . review content,” and tells users, “please don’t assume that we do.” (emphasis added). Such qualified language is hardly a per se signal to Google users that they can have no expectation of privacy in their emails, even as against the government.

Which is long way of basically stating what should be considered obvious: that agreeing to share things with private company third parties is not nearly the same thing as agreeing to share the same things with the government at any point the government desires to access content or communications. And yet, that’s pretty much how the Third Party Doctrine operates. Fortunately, it has never been so broadly read to cover private communications, but that definitely appears to be the argument the New York State Police tried to advance while pushing back against this challenge of its warrantless search.

It probably shouldn’t have bothered. The search is saved by the “good faith exception” and the conviction remains in place. But even though none of that does much for Maher, it does at least make it clear to law enforcement operating in the Second Circuit where the Third Party Doctrine ends and the Fourth Amendment begins. And that dividing line can’t simply be ignored because somewhere in the ToS boilerplate users are “informed” (lol) the company they’re entrusting their communications with may occasionally share these with the government.

When it comes to Section 230, we’ve seen a parade of embarrassingly wrong takes over the years, all sharing one consistent theme: the authors confidently opine on the law despite clearly not understanding it. Each time I think we’ve hit bottom with the most ridiculously wrong take, along comes another challenger.

This week’s is a doozy.

I don’t want to come off as harsh in critiquing these articles, but it’s exasperating. It’s very possible for the people writing these articles to actually educate themselves. And in this case in particular, at least two of the authors have published something similar before and have been called out for their factual errors, and have chosen to double down, rather than educate themselves. So if the tone of this piece sounds angry, it’s exasperation that the authors are now deliberately choosing to misrepresent reality.

I’ve written twice about Professor Allison Stanger, both times in regards to her extraordinarily confused misunderstandings about Section 230 and how it intersects with the First Amendment. It appears that she has not taken the opportunity in the interim to learn literally anything about the law. Instead, she is now taking (1) an association with Harvard’s prestigious Kennedy School to further push utter batshit nonsense disconnected from reality, and (2) sullying others’ reputations in the process.

I first wrote about her when she teamed up with infamous (and frequently wrong) curmudgeon Jaron Lanier to write a facts-optional screed against Section 230 in Wired magazine that got so much factually wrong that it was embarrassing. The key point that Stanger/Lanier claimed was that Section 230 somehow gave the internet an ad-based business model, which is not even remotely close to true. Among other things, that article confused Section 230 with the DMCA (two wholly different laws) and then tossed in a bunch of word salad about “data dignity,” a meaningless phrase.

Even weirder, the beginning of that article seems to complain that not enough content is moderated (too much bad content!), but by the end they’re complaining that too much good content is moderated. Somehow, the article suggests, if we got rid of Section 230, exactly the right kinds of content would be moderated, and somehow advertising would no longer be bad and harassment would disappear. Then they say websites should only moderate based on the First Amendment which would forbid sites from moderating a bunch of the things the article said needed moderating. I dunno, man. It made no sense.

Somehow, Stanger leveraged that absolute nonsense into a chance to appear before a congressional committee, where she falsely claimed that decentralized social media apps were the same thing as decentralized autonomous organizations. They’re wholly different things. She also told the committee that Wikipedia wouldn’t be sued without Section 230 because “their editing is done by humans who have first amendment rights.”

Which is quite an incredibly confusing thing to say. Humans with First Amendment rights still get sued all the time.

Anyway, Stanger and Lanier are back with a new article, this time published at the Harvard Kennedy School’s Ash Center for Democratic Governance and Innovation. Once again, they are completely and totally getting Section 230 twisted around to make it unrecognizable from reality.

Unfortunately, this time, they’ve dragged along Audrey Tang as a co-author. I’ve met Tang and I have tremendous respect for her. As digital minister of Taiwan, she did some amazing things to use the internet for good in the world of civic tech. She’s also spoken about the importance of the internet on free speech in Taiwan, and the importance of the open World Wide Web on democracy in Taiwan. She’s very thoughtful about the intersection of technology, speech, and law.

But she is not an expert on Section 230 or the First Amendment, and it shows in this piece.

At least this article starts with a recognition of the First Amendment, but it even gets the very basics of that wrong:

The First Amendment is often misunderstood as permitting unlimited speech. In reality, it has never protected fraud, libel, or incitement to violence. Yet Section 230, in its current form, effectively shields these forms of harmful speech when amplified by algorithmic systems. It serves as both an unprecedented corporate liability shield and a license for technology companies to amplify certain voices while suppressing others. To truly uphold First Amendment freedoms, we must hold accountable the algorithms that drive harmful virality while protecting human expression.

Yes, some people misunderstand the First Amendment that way, but no, Section 230 does not shield “those forms of harmful speech.” Also, the “incitement to violence” is from the Brandenburg Test and is technically “incitement to imminent lawless action” which is not the same thing as “incitement to violence.” To pass the Brandenburg test, the speech has to be “intended to incite or produce imminent lawless action, and likely to incite such action.”

This is an extremely high bar, and nearly all harassment does not cross that bar.

Also, this completely misunderstands Section 230, which does not actually “shield these forms of harmful speech.” If the speech is actually illegal under the First Amendment, Section 230 does absolutely nothing to “shield” it. All 230 does is say that we place the liability on the speaker. If the speech actually does violate the First Amendment (and, as we’ll get to, this piece plays fast and loose with how the First Amendment actually works), then 230 doesn’t stand in the way at all of holding the speaker liable.

Yet, this piece seems to argue that if we got rid of Section 230 and somehow forced websites to only moderate to the Brandenburg standard, it would somehow magically stop harassment.

The choice before us is not binary between unchecked viral harassment and heavy-handed censorship. A third path exists: one that curtails viral harassment while preserving the free exchange of ideas. This balanced approach requires careful definition but is achievable, just as we’ve defined limits on viral financial transactions to prevent Ponzi schemes. Current engagement-based optimization amplifies hate and misinformation while discouraging constructive dialogue.

To put it mildly, this is delusional. This “third path” is basically just advocating for dictatorial control over speech.

This is a common stance for people with literally zero experience with the challenges of trust & safety and content moderation. These people seem to think if only they were put in charge of writing the rules, it’s possible to write perfect rules that stop the bad stuff but leave the good stuff.

That’s not possible. And anyone with any experience in a trust & safety role would know that. Which is why it would be great if non-experts stopped cosplaying as if they understand this stuff.

There’s a reason that we created two separate trust & safety and content moderation games to help people like the authors of this piece understand that it’s not so simple. People are complicated. So many things involve subjective calls in murky gray areas, that even experts in the field who have spent years adjudicating these things rarely agree on how best to handle different situations.

Our proposed “repeal and renew” approach would remove the liability shield for social media companies’ algorithmic amplification while protecting citizens’ direct speech. This reform distinguishes between fearless speech—which deserves constitutional protection—and reckless speech that causes demonstrable harm. The evidence of such harm is clear: from the documented mental health impacts of engagement-optimized content to the spread of child sexual abuse material (CSAM) through algorithm-driven networks.

Ah, so your problem is with the First Amendment, not Section 230. The idea that only “fearless speech” deserves constitutional protection is a lovely fantasy for law professors, but it’s not the law. And never has been. You would need to first completely dismantle over a century’s worth of First Amendment jurisprudence before we even get to the question of 230, which wouldn’t do what you want it to do in the first place.

Under the First Amendment, “reckless speech” remains protected, except in some very specific, well-delineated cases. And you can’t just wave your arms and pretend otherwise, even though that’s what Stanger, Lanier, and Tang do here.

That’s not how it works.

And, because the three of them seem to be coming up with simplistically wrong solutions to inherently complex problems, let’s dig in a bit more on the examples they have. First off, CSAM is already extremely illegal and not protected by either the First Amendment or Section 230. So it’s bizarre that it’s even mentioned here (unless you don’t understand how any of this works).

But how about “the documented mental health impacts of engagement-optimized content”? That’s… not actually proven? This has been discussed widely over the last few years, but the vast majority of research finds no such causal links. Yes, you have a few folks who claim it’s proven, but many of the leading researchers in the field, and multiple meta-analyses of the research have found no actual evidence to support a causal link between social media and mental health.

So… then what?

Stanger, Lanier, and Tang seem to take it as given that such harm is there, even as the evidence has disagreed with that claim. Do we wave a magic wand and say “well, because these three non-experts insist that social media is harmful to mental health that we suddenly make such content… no longer protected under the First Amendment?”

That’s not how the First Amendment works, and it’s not how anything works.

Or, how about we take a more specific example, even though it’s not directly raised in the article. One area of content that many people are very concerned about is “eating disorder content.” Based on what’s in this article, I’m pretty sure that Stanger, Lanier, and Tang would argue that, obviously, eating disorder content should be deemed “harmful” and therefore unprotected under the First Amendment (again, this would require a massive change to the First Amendment, but let’s leave that fantasyland in place for a moment.)

Okay, but now what?

Multiple studies have shown that (1) determining what actually is “eating disorder content” is way more difficult than most people think, because the language around it is so ever-changing, to the point that sometimes people argue that photos of gum are “eating disorder content” and (2) perhaps more importantly, simply removing eating disorder content has been shown to make eating disorder issues worse for some users!

Often, this is because eating disorder content is a demand-side issue, where people are looking for it, rather than being driven to eating disorders based on the content. Removing it often just drives those seeking it out into darker corners of the internet where, unlike in the mainstream areas of the internet, they’re less likely to see useful interventions and resources (including help from others who have recovered from eating disorders).

So, what should be done here? Under the Stanger/Lanier/Tang proposal, the answer is to make such content illegal and require websites to block it, even though that likely does even more harm to vulnerable people.

And that’s ignoring the whole First Amendment problem. Repeatedly throughout the article, Stanger/Lanier/Tang handwave around all this by suggesting that you can create a new law that concretely determines what content is allowed (and must be carried) and what content is not.

But that’s not how it works in both directions. The law can no more compel websites to keep up speech they don’t want to host, than it can force them to take down content the three authors think is “harmful” but does not pass the existing tests regarding what is not protected under the First Amendment.

Given its many problems regarding the authors’ understanding of speech, it will not surprise you that they trot out the “fire in a crowded theater” line, which is the screaming siren of “this is written by people unfamiliar with the First Amendment.”

Just as someone shouting “fire” in a crowded theater can be held liable for resulting harm, operators of algorithms that incentivize harassment for engagement should face accountability.

Earlier in the piece, they pointed (incorrectly) to the Brandenburg test on incitement to imminent lawless action. Given that, you might think that someone might have pointed out to them that Brandenburg effectively rejected Schenck, the case in which the “fire in a crowded theater” line was uttered as dicta (i.e., not controlling or meaningful). But, nope. They pretend it’s the law (it’s not), just like they pretend the Brandenburg standard can magically be extended to harassment (it cannot).

The piece concludes with even more nonsense:

Section 230 today inadvertently circumvents the First Amendment’s guarantees of free speech, assembly, and petition. It enables an ad-driven business model and algorithmic moderation that optimize for engagement at the expense of democratic discourse. Algorithmic amplification is a product, not a public service. By sunsetting Section 230 and implementing new legislation that holds proprietary algorithms accountable for demonstrable harm, we can finally extend First Amendment protections to the digital public square, something long overdue.

Literally every sentence of that paragraph is wrong. Harvard should be ashamed for publishing something that would flunk a first-year Harvard Law class. Section 230 does nothing to “circumvent” the First Amendment. The First Amendment does not guarantee free speech, assembly, and petition on private property. It simply limits the government from suppressing it. Private property owners still have the editorial discretion to do as they wish, which is supported by Section 230.

As for the claim that you can magically apply liability to “algorithmic amplification” and not have that violate the First Amendment, that’s also wrong. We discussed that just last week, so I’m not going to rehash the entire argument. But algorithmic amplification is literally speech as well, and it is very much protected under the First Amendment as an opinion on “we think you’d like this.” You can’t just magically move that outside of the First Amendment. That’s not how it works.

The point is that this piece is not serious. It does not grapple with the realities of the First Amendment. It does not grapple with the impossibilities of content moderation. It does not grapple with the messiness of societal level problems with no easy solution. It ignores the evidence on social media’s supposed harms.

It sets up a fantasyland First Amendment that does not exist, it misrepresents what Section 230 does, it mangles the concept of “harms” in the online speech context, and it punts on what the simple “rules” they think they can write to get around all of that would be.

It’s embarrassing how disconnected from reality the article is.

Yet, Harvard’s Kennedy School was happy to put it out. And that should be embarrassing for everyone involved.

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Like a bunch of other states run by people who hate the people they serve (except for the people who harbor the same hatred), Tennessee has decided it should get into the book-banning business — years after literal Nazis made this sort of thing politically untenable. Or so we thought.

Now, before the pedants step in to criticize the headline, I understand the law doesn’t actually authorize book bans. But it achieves the same end result by creating a long (but vague) list of content that supposedly isn’t appropriate for schoolchildren, no matter what their ages. And then it goes further by requiring schools to maintain and post lists of all books in their libraries, as well as humor “challenges” raised by activist groups that just want to see the immediate removal of content they don’t like.

Unsurprisingly, the books “challenged” the most are ones that contain anything remotely LGBTQ-related, as well as anything that might portray minorities in a positive light and/or white Americans in a negative light, even if the books factually depict historical events.

It’s this blend of vagueness and bigotry that resulted in a Tennessee school completely shuttering its library right as it was reopening for the school year in order to avoid potentially violating the law. And it’s the same law that has resulted in a single school district removing more than 400 books from its school libraries — an effort that has affected authors ranging from Dr. Seuss to Steven King.

At a school board meeting in Wilson County on Thursday, Director of Schools Jeff Luttrell included in his report a full list of 390 books that have been banned by the county. The titles include “The Green Mile” by Steven King, “Bluest Eye” by Toni Morrison, “Slaughterhouse Five” by Kurt Vonnegut, “The Lovely Bones” by Alice Sebold, “Wacky Wednesday” by Dr. Seuss, “Ready Player One” by Ernest Cline, “The Nickel Boys” by Colson Whitehead and more.

390 books is a lot of books. But that’s actually an under-count. Additional reporting says the number of books removed exceeds 400.

Wilson County Schools has removed about 425 book titles from its shelves to comply with new state law that went into effect July 1 prohibiting books and materials with references to sex and violence in public school libraries, according to a new report.

And there may be more to add to that list in the near future, according to the district’s public information officer, Bart Barker.

“This is an ongoing process,” Barker said as librarians continue to meet regularly “to get a collective opinion,” about book titles that should be pulled from schools based on the law.

This is supposedly the full list [PDF] of books removed by Wilson County Schools. A brief scan of the list will make it clear a lot of what’s being removed contains subject matter people with [vomit] “conservative values” which to see erased from public discourse. And the rest of it just appears to be content that fits within the extremely vague, overly-broad list of things the state feels even high school students shouldn’t be allowed to access, even if they do so on a daily basis away from schools.

It’s stupid and abhorrent. And it’s also a very popular thing to do. Full-time censors working for the government have aligned themselves with censorial hobbyists who spend their copious amounts of free time raising book challenges, yelling about stuff at school board meetings, and otherwise doing everything they can to force the government to force other people to comply with their narrow-minded worldview. At this point, we’re only a can of gas and a handful of matches away from government-ordained book burnings. It’s not going to take too many more elections to push this nation over the edge, set it adrift from its free speech moorings, and place us under the heels of people who pretend to be public servants while doing everything they can to keep the public as subservient as possible.

Stop me if you’ve heard this one before: a giant U.S. telecom monopoly has been ripping off a federal program designed to help the country’s low income residents. AT&T last week quietly struck a $2.3 million consent decree with the FCC for falsely inflating the number of people it was helping under a COVID-era program designed to make broadband more affordable for poor people.

During the pandemic, the government created the Emergency Broadband Benefit Program (EBB), which provided a $50 discount off the broadband bills of low-income Americans. AT&T used several different ways to falsely inflate the amount of users actually enrolled in the program to grab extra money it didn’t deserve. Then lied about it.

When contacted by Ars Technica in a bid for comment, AT&T spokespeople would only praise the company for participating in the program:

“When the federal government acted during the COVID-19 pandemic to stand up the Emergency Broadband Benefit program, and then the Affordable Connectivity Program, we quickly implemented both programs to provide more low-cost Internet options for our customers.”

In just the last decade, AT&T has been fined $18.6 million for helping rip off programs for the hearing impaired; fined $10.4 million for ripping off a different program for low-income families; fined $105 million for helping “crammers” by intentionally making such bogus charges more difficult to see on customer bills; and fined $60 million for lying to customers about the definition of “unlimited” data.

There’s also employee allegations the company has been ripping off school subsidy programs for years; allegations I’ve yet to see meaningfully investigated. And earlier this year, AT&T was fined another $23 million after executives were caught bribing Illinois officials to get favorable broadband regulation in the state.

AT&T is one of several companies currently trying to get out of federal obligations attached to infrastructure bill subsides designed to aid poor Americans. And they’re at the forefront of Supreme Court backed efforts to permanently defang what’s left of U.S. regulatory independence and authority. I wonder why?