If you’ve spent any time in my Section 230 myth-debunking guide, you know that most bad takes on the law come from people who haven’t read it. But lately I keep running into a different kind of bad take—one that often comes from people who have read the law, understand the basics passably well, and still say: “Sure, keep 230 as is, but carve out algorithmically recommended content.”

Unlike the usual nonsense, this one is often (though not always) offered in good faith. That makes it worth engaging with seriously.

It’s still wrong.

Let’s start with the basics: as we’ve described at great length, the real benefits of Section 230 are its procedural protections, which make it so that vexatious cases get tossed out at the earliest (i.e., cheapest) stage. That makes it possible for sites that host third party content to do so in a way that they won’t get sued out of existence any time anyone has a complaint about someone else’s content being on the site. This important distinction gets lost in almost every 230 debate, but it’s important. Because if the lawsuits that removing 230 protections would enable would still eventually win on First Amendment grounds, the only thing you’re doing in removing 230 protections is making lawsuits impossibly expensive for individuals and smaller providers, without doing any real damage to large companies, who can survive those lawsuits easily.

And that takes us to the key point: removing Section 230 for algorithmic recommendations would only lead to vexatious lawsuits that will fail.

But what about [specific bad thing]?

Before diving into the legal analysis, let’s engage with the strongest version of this argument. Proponents of carving out algorithmic recommendations typically aren’t imagining ordinary defamation suits. They’re worried about something more specific: cases where an algorithm itself arguably causes harm through its recommendation patterns—radicalization pipelines, engagement-driven amplification of dangerous content, recommendation systems that push vulnerable users toward self-harm.

The theory goes something like this: maybe the underlying content is protected speech, but the act of recommending it—especially when the algorithm was designed to maximize engagement and the company knew this could cause harm—should create liability, usually as some sort of “products liability” type complaint.

It’s a more sophisticated argument than “platforms are publishers.” But it still fails, for reasons I’ll explain below. The short version: a recommendation is an opinion, opinions are protected speech, and the First Amendment doesn’t carve out “opinions expressed via algorithm” as a special category.

A short history of algorithmic feeds

To understand why removing 230 from algorithmic recommendations would be such a mistake, it helps to remember the apparently forgotten history of how we got here. In the pre-social media 2000s, “information overload” was the panic of the moment. Much of the discussion centered on the “new” technology of RSS feeds, and there were plenty of articles decrying too much information flooding into our feed readers. People weren’t worried about algorithms—they were desperate for them. Articles breathlessly anticipated magical new filtering systems that might finally surface what you actually wanted to see.

The most prominent example was Netflix, back when it was still shipping DVDs. Because there were so many movies you could rent, Netflix built one of the first truly useful recommendation algorithms—one that would take your rental history and suggest things you might like. The entire internet now looks like that, but in the mid-2000s, this was revolutionary.

Netflix’s approach was so novel that they famously offered $1 million to anyone who could improve their algorithm by 10%. We followed that contest for years as it twisted and turned until a winner was finally announced in 2009. Incredibly, Netflix never actually implemented the winning algorithm—but the broader lesson was clear: recommendation algorithms were valuable, and people wanted them.

As social media grew, the “information overload” panic of the blog+RSS era faded, precisely because platforms added recommendation algorithms to surface content users were most likely to enjoy. The algorithms weren’t imposed on users against their will—they were the answer to users’ prayers.

Public opinion only seemed to shift on “algorithms” after Donald Trump was elected in 2016. Many people wanted something to blame, and “social media algorithms” was a convenient excuse.

Algorithmic feeds: good or bad?

Many people claim they just want a chronological feed, but studies consistently show the vast majority of people prefer algorithmic recommendations, because they surface more of what users actually want, compared to chronological feeds.

That said, it’s not as simple as “algorithms good.” There’s evidence that algorithms optimized purely for engagement can push emotionally charged political content that users don’t actually want (something Elon Musk might take notice of). But there’s also evidence that chronological feeds expose users to more untrustworthy content, because algorithms often filter out garbage.

So, algorithms can be good or bad depending on what they’re optimized for and who controls them. That’s the real question: will any given regulatory approach give more power to users, to companies, or to the government?

Keep that frame in mind. Because removing 230 protections for algorithmic recommendations shifts power away from users and toward incumbents and litigants.

The First Amendment still exists

As mentioned up top, the real role of Section 230 is providing a procedural benefit to get vexatious lawsuits tossed well before (and at much lower cost) they would get tossed anyway, under the First Amendment. With Section 230, you can get a case dismissed for somewhere in the range of $50k to $100k (maybe up to $250k with appeals and such). If you have to rely on the First Amendment, it’s up in the millions of dollars (probably $5 to $10 million).

And, the crux of this is that any online service sued over an algorithmic recommendation, even for something horrible, would almost certainly win on First Amendment grounds.

Because here’s the key point: a recommendation feed is a website’s opinion of what they think you want to see. And an opinion is protected speech. Even if you think it’s a bad or dangerous opinion. One thing that the US has been pretty clear on is that opinions are protected speech.

Saying that an internet service can be held liable for giving its opinion on “what we think you’d like to see” would be earth shatteringly problematic. As partly discussed above, the modern internet today relies heavily on algorithms recommending stuff, giving opinions. Every search result is just that, an opinion.

This is why the “algorithms are different” argument fails. Yes, there’s a computer involved. Yes, the recommendation emerges from machine learning rather than a human editor’s conscious decision. But the output is still an expression of judgment: “Based on what we know, we think you’ll want to see this.” That’s an opinion. The First Amendment doesn’t distinguish between opinions formed by editorial meetings and opinions formed by trained models.

In the earlier internet era, there were companies that sued Google because they didn’t like how their own sites appeared (or didn’t appear) in Google search results. The E-Ventures v. Google case here is instructive. Google determined that E-Venture’s “SEO” techniques were spammy, and de-indexed all its sites. E-Ventures sued. Google (rightly) raised a 230 defense which (surprisingly!) a court rejected.

But the case went on longer, and after lots more money on lawyers was spent, Google did prevail on First Amendment grounds.

This is exactly what we’re discussing here. Google search ranking is an algorithmic recommendation engine, and in this one case a court (initially) rejected a 230 defense, causing everyone to spend more money… to get to the same basic result in the long run. The First Amendment protects a website using algorithms to express an opinion over what it thinks you’ll want… or not want.

Who has agency?

This brings us back to the steelman argument I mentioned above: what about cases where an algorithm recommends something genuinely dangerous?

Our legal system has a clear answer, and it’s grounded in agency. A recommendation feed is not hypnotic. If an algorithm surfaces content suggesting you do something illegal or dangerous, you still have to make the choice to do the illegal or dangerous thing. The algorithm doesn’t control you. You have agency.

But there’s a stronger legal foundation here too. Courts have consistently found that recommending something dangerous is still protected by the First Amendment, particularly when the recommender lacks specific knowledge that what they’re recommending is harmful.

The Winter v. GP Putnam’s Sons case is instructive here. The publisher of a mushroom encyclopedia included recommendations to eat mushrooms that turned out to be poisonous—very dangerous! But the court found the publisher wasn’t liable because they didn’t have specific knowledge of the dangerous recommendation. And crucially, the court noted that the “gentle tug of the First Amendment” would block any “duty of care” that would require publishers to verify the safety of everything they publish:

The plaintiffs urge this court that the publisher had a duty to investigate the accuracy of The Encyclopedia of Mushrooms’ contents. We conclude that the defendants have no duty to investigate the accuracy of the contents of the books it publishes. A publisher may of course assume such a burden, but there is nothing inherent in the role of publisher or the surrounding legal doctrines to suggest that such a duty should be imposed on publishers. Indeed the cases uniformly refuse to impose such a duty. Were we tempted to create this duty, the gentle tug of the First Amendment and the values embodied therein would remind us of the social costs.

Now, I should acknowledge that Winter was a products liability case involving a physical book, not a defamation or tortious speech case involving an algorithm, but almost all of the current cases challenging social media are self-styled as product liability cases to try (usually without success) to avoid the First Amendment. And that’s all they would be regarding algorithms as well.

The underlying principle remains the same whether you call it a products liability case or one officially about speech: the First Amendment bars requirements that publishing intermediaries must “investigate” whether everything they distribute is accurate or safe. The reason is obvious—such liability would prevent all sorts of things from getting published in the first place, putting a massive damper on speech.

Apply that principle to algorithmic recommendations, and the answer is clear. If a book publisher can’t be required to verify that every mushroom recommendation is safe, a platform can’t be required to verify that every algorithmically surfaced piece of content won’t lead someone to harm.

The end result?

So what would it mean if we somehow “removed 230 from algorithmic recommendations”?

Practically, it means that if companies have to rely on the First Amendment to win these cases, only the biggest companies can afford to do so. The Googles and Metas of the world can absorb $5-10 million in litigation costs. For smaller companies, those costs are existential. They’d either exit the market entirely or become hyper-aggressive about blocking content at the first hint of legal threat—not because the content is harmful, but because they can’t afford to find out in court.

The end result would be that the First Amendment still protects algorithmic recommendations—but only for the very biggest companies that can afford to defend that speech in court.

That means less competition. Fewer services that can recommend content at all. More consolidation of power in the hands of incumbents who already dominate the market.

Remember the frame from earlier: does this give more power to users, companies, or the government? Removing 230 from algorithmic recommendations doesn’t empower users. It doesn’t make platforms more “responsible.” It just makes it vastly harder for anyone other than the giant platforms to exist while also giving more power to governments, like the one currently run by Donald Trump, to define what things an algorithm can, and cannot, recommend.

Rather than diminishing the power of billionaires and incumbents, this would massively entrench it. The people pushing for this carve-out often think they’re fighting Big Tech. In reality, they’re fighting to build Big Tech a new moat.

Eight million ways to die.

According to AdWeek, the price for a 30-second commercial during Super Bowl LX has soared to $8 million, after NBC opened in the summer by offering spots for $7 million. As AdWeek notes, “due to demand, the company has already reached its cap for the number of spots that were available for advertisers to buy during the upfront season.”

$8 million for 30 seconds sometimes means turning a niche product into a national phenomena. The 30 seconds purchased by Ring went the other way. If you want to see how $8 million can be used to promote mass surveillance enabled by consumer products, here you go:

Sure, it looks pretty innocuous. And what could be better than turning Ring and Flock Safety’s network of cameras into a digital proxy for posting “LOST DOG” signs all over the neighborhood? Well, as it turns out, pretty much everyone saw how problematic this offering was, especially considering what’s already known about Ring, Flock Safety, and both companies’ rather cavalier attitude towards privacy and other aspects of the Fourth Amendment.

To begin with, the “Search Party” feature that allows people to access recordings and images captured by other people’s cameras is already on, which likely comes as a surprise to owners of these devices. Here’s what The Verge’s Jennifer Tuohy discovered last October, shortly after Ring announced its partnership with Flock Safety — a company best known for allowing cops to hunt down people seeking abortions and/or allowing federal officers to perform nationwide searches for whoever they might be looking for (which, of course, would be anyone looking kinda like an immigrant).

[I]t turns out that Search Party is enabled by default. In an email to customers this week, Siminoff wrote that the feature is rolling out to Ring outdoor cameras in November and noted, “You can always turn off Search Party.”

I checked my cameras this morning, and they were all automatically set to enable Search Party. And I’m not alone; Ring users on Reddit have also reported that their cameras have been enabled for Search Party. 

This under-reported “feature” was exposed by Ring’s Super Bowl ad, which resulted in enough backlash that Flock Safety no longer has a Ring to wear. Back to Jennifer Tuohy and The Verge:

In a statement published on Ring’s blog and provided to The Verge ahead of publication, the company said: “Following a comprehensive review, we determined the planned Flock Safety integration would require significantly more time and resources than anticipated. We therefore made the joint decision to cancel the integration and continue with our current partners … The integration never launched, so no Ring customer videos were ever sent to Flock Safety.”

While that last sentence may be true, it appears sharing was on by default when it came to Ring’s own cameras. That Flock Safety never got a chance to participate is good to know, but “Search Party” has apparently been active since its implementation last year, even if it was limited to Ring devices.

And while Ring claims the Search Party feature can’t be used to search for “human biometrics,” that’s hardly comforting when it appears Ring definitely wants to add more of this kind of thing to its existing cameras.

On top of this, the company recently launched a new facial recognition feature, Familiar Faces. Combined with Search Party, the technological leap to using neighborhood cameras to search for people through a mass-surveillance network suddenly seems very small.

Ring insists this is not another mass surveillance tool, but rather something that attempts to recognize who’s at any user’s door when sending alerts, in order to differentiate friends and family members from strangers who might be within camera range. Again, there’s some utility to this offering, but the tech lends itself to surveillance abuses, especially when law enforcement may only be a subpoena away from accessing images and recordings captured by privately-owned devices.

Finally, the statement given by Ring only states that this won’t be happening right now, which is a wise choice considering its unpopularity at the moment. But that doesn’t mean Ring and Flock won’t seek to consummate this marriage of surveillance tech, albeit in a more private fashion that doesn’t involve alarming hundreds of millions of sports viewers simultaneously.

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Debates on how the media should be covering what Donald Trump says have been going on for over a decade now. A few months ago, we wrote about the regularity with which the mainstream media “sanewashes” his more ridiculous statements, taking the incoherent ramblings of a madman and pretending to translate them into actual policy goals. In those cases, the media downplays the things he says, while playing up what they pretend he wanted to say.

But there’s another version of this same problem. The mainstream media also loves to take some random statement he makes, that everyone knows he’s lying (or at least misleading) about, and pretends that he means it earnestly and that it should be reported on as fact.

Both of these failures stem from the same underlying instinct: a desperate need to make Trump fit within conventional political norms. Whether that means cleaning up his incomprehensible gibberish to sound like real policy, or treating his obvious lies as sincere declarations, the effect is identical. The media keeps trying to avoid reporting on just how far outside conventional—and sane—bounds Trump is in how he runs this government.

Margaret Sullivan, who has been one of the sharpest media critics around, has a piece in her newsletter that lays out this side of the problem with depressing clarity:

Are these statements worth reporting? Certainly. Do they require extra dollops of skepticism and context? Even more certainly. But too often, they don’t get that treatment.

The specific examples she highlights are instructive.

On Sunday, as if on cue, federal agents were out in two blue cities in New Jersey, detaining people on their way to work.

“Right now, (ICE) is coming for migrants,” one frightened Hoboken resident, Ernest Boyd, told CBS News. “It’s going to come for all of us.” Jersey City was another target — yes, the same weekend that Trump suggested to reporters on Air Force One that a softer approach was in the offing.

Or even pay attention to what’s happening in Minneapolis. Just as we predicted, despite headlines misleadingly reporting that there was a “new approach” there, we’re still seeing stories every day of ICE and CBP harassing people at schools and dragging away neighbors.

Or take the Greenland situation.

How about his supposed “deal” over Greenland, which his administration was threatening to acquire by “unstoppable force” if necessary? At the World Economic Forum in Davos, he made some remarks about how he could do just that, but wouldn’t do it right now, after all.

The headlines and push alerts, as usual, played it just as he would have liked: “Trump said the U.S. won’t use force to take Greenland” was a typical one from the Wall Street Journal.

“If you only read those headlines,” wrote Parker Molloy on her Substack newsletter, The Present Age, “you’d think the president made some kind of conciliatory gesture.” But, she added, that’s not the core of what happened in that room: Rather, Trump “reminded everyone of his capacity for violence, made clear that resistance would be futile and then offered them a chance to surrender peacefully,” she wrote. His saying he wouldn’t use force “is misdirection, and the coverage fell for it.”

Then there was all kinds of bluster — and coverage — about a supposed “framework for a deal” over Greenland that was again reported as serious breaking news.

“Trump announces ‘framework’ for a future deal on Greenland, drops NATO tariff threat,” was the ABC News take, a typical one.

Sullivan points out the exception that proves the general rule: CNN’s Aaron Blake was one of the few who provided the context that should have been in every headline: “Trump’s Greenland framework sounds a lot like an already existing 1951 deal.” That’s the kind of journalism that actually informs readers.

But for most of the mainstream media, the old pattern holds: Trump threatens something outrageous. Then he backs off slightly from the outrageous thing. The media reports the backing-off as if it’s the story, rather than the fact that the outrageous threat was made in the first place. It’s like praising someone for only punching you once instead of twice.

Part of this is about the fundamental architecture of how news gets consumed:

As always, headlines and news alerts are important. All the nuance in the world in the 12th paragraph doesn’t help much if the headline creates a completely different impression.

This is the core problem. Most people don’t read past the headline. Push alerts are consumed in seconds. The sophisticated context that journalists might include deep in the story is irrelevant if the headline and lede have already painted a misleading picture.

Sullivan offers some practical suggestions that really shouldn’t be revolutionary but apparently are:

First, use words that convey skepticism, not credulity. Instead of a headline that says “Trump orders ICE to ease up…”, try this: “Trump claims a new approach, even as ICE continues arrests.”

Crazy idea: maybe don’t write headlines that treat Trump’s words as equivalent to reality when a decade of evidence suggests they’re often the opposite.

And, to some extent, you can understand why the media keeps doing this. For decades now, the GOP has been “working the refs,” insisting that they got unfair treatment. That the “liberal media” covered them in unfair ways. This was never particularly accurate. The mainstream media has always had a corporatist-bent rather than one that focused on any political ideology.

But, the end result of all that yelling and screaming about “liberal media bias” means that they go out of their way to avoid accurate reporting on just how ridiculous President Trump is. Sometimes that means taking his word salad pronouncements and hopelessly trying to map them to the kinds of things any normal political leader might say. And sometimes, it means taking the untrue things he says as truth, just to pretend there’s some level of normalcy.

The media’s learned helplessness on this issue is its own kind of institutional failure. These are smart people at major news organizations. They have editors. They have fact-checkers. They have a decade of experience covering this specific individual. And still, the default mode is to treat his utterances as newsworthy declarations rather than what they often are: strategic noise designed to generate exactly the coverage it gets.

The press isn’t supposed to be stenographers. They’re supposed to help people understand what’s actually happening. And what’s actually happening is that Trump keeps saying things and the press keeps trying to mold those things from where they really are—way outside political, cultural, reality norms—and presents them in a manner that downplays the reality, cleans up the crazy, and just generally misleads the public.

As the old journalism saw says, if someone says it’s raining, and someone else says it isn’t, a reporter’s job is not to report on what they said, but to look out the damn window and report on what’s actually happening.

It’s raining. It’s been raining for a decade. Now would be as good a time as any for reporters to look out the damn window and report on what’s actually happening.

You might recall that a central pillar of the Trump administration during the last election season was that a second Trump term would “take aim at big tech,” protect the little guy, rein in corporate power, and even “continue the legacy of antitrust enforcers like Lina Khan.” The press was filled with endless stories credibly parroting these sorts of claims, all day, everyday.

More than a year later and it’s nothing but corruption and cronyism as far as the eye can see.

The Trump administration and its courts have effectively destroyed regulatory independence, federal consumer protection, U.S. cybersecurity standards, and public safety oversight. Massive, terrible mergers are rubber stamped with reckless abandon, provided companies show authoritarian leadership they’re racist and feckless enough.

A 2025 report by nonprofit consumer advocacy firm Public Citizen calculated that the Trump administration has frozen regulatory action for at least 165 corporations under investigation for a wide variety of abuses, crimes, and fraud. And a more recent study by the nonprofit watchdog Environmental Integrity Project has found that EPA environmental protection has effectively ground to a halt:

“By analyzing a range of federal court and administrative data, the nonprofit Environmental Integrity Project found that civil lawsuits filed by the US Department of Justice in cases referred by the Environmental Protection Agency dropped to just 16 in the first 12 months after Trump’s inauguration on Jan. 20, 2025. That is 76 percent less than in the first year of the Biden administration.”

Of course, this didn’t just begin with Trumpism. For the better part of the last fifty years years “free market Libertarians” and Republicans (often with help from corrupt Democrats) have waged a brutal war on the regulatory state, insisting repeatedly that the path toward innovative utopia in all industries required that we defund, understaff, and legally undermine regulators at every turn.

It’s worth noting the majority of these folks weren’t arguing for reasonable and modest regulation, they were arguing, repeatedly, for no meaningful oversight of corporate power whatsoever (see: telecom). When the reality of that unpopular policy choice surfaces in the form of mass suffering, financial hardship, and death, a lot of these very vocal opinion havers routinely get mysteriously fucking quiet.

When it comes to most regulatory agencies, including the EPA, the assault has been multi-pronged. Numerous rulings (like Loper Bright) by the extremist U.S. Supreme Court have utterly demolished regulatory autonomy. And if an enforcement action against a corporation for predatory behavior somehow is brought, Republicans at the 5th and 6th Circuits ensure it can’t go anywhere.

At the same time, you have clowns like Elon Musk waging open war on essential government employees under the pretense of innovative efficiencies, ensuring that agencies don’t have the staff to do their job even if they wanted to:

“Part of the decline in lawsuits against polluters could be due to the lack of staff to carry them out, experts say. According to an analysis from E&E News, at least a third of lawyers in the Justice Department’s environment division have left in the past year. Meanwhile, the EPA in 2025 laid off hundreds of employees who monitored pollution that could hurt human health.”

While authoritarians have taken this all to an entirely new level, the path to this point was paved by no limit of anti-governance propaganda by countless U.S. Libertarian “free market” types, who, from my vantage point, have faced zero reputational or financial harm from leading the country down the path to what will be some extremely bloody and ugly outcomes.

It’s not really possible to fathom the real-world impact of the complete collapse of the federal regulatory state across labor, consumer protection, environmental enforcement, and public safety is going to have in the decades to come. But fortunately for the individuals and companies that made all of this possible, our corporate press really doesn’t seem all that interested in covering the story with any zeal.

Even outlets that do cover this story tend to downplay the impact of the destruction of regulatory oversight structures that took generations to build, with explanations that lull the reader into a deep fucking slumber long before any serious point is made.

It will take decades to repair the damage this era of open corruption has caused, if we ever do. Some state enforcement will attempt to step in and fill the void, but that will prove erratic at best, and nonexistent in many MAGA-dominated states.

Even if we can dislodge ourselves from Trumpism, I suspect many of the most likely candidates for a Democratic Presidency (Gavin Newsom, Mark Kelly) somehow won’t find the time to ensure that restoring regulatory integrity is as big of a priority as restoring corporate research grants. Forcing boxed-in, understaffed, and underfunded regulators to take action on piecemeal issues only after large swaths of people have avoidably died in, once again, completely avoidable and terrible ways.

That’s all depressing as hell, but I’m bored of people normalizing or downplaying the real-world impact of some of the worst corruption this country has ever seen (which is truly saying something).

This week, our first place winner on the insightful side is MrWilson (who racked up a lot of wins this week) with a comment about the Twitter Files crew staying quiet when there are real attacks on free speech:

“Free speech absolutists”: “You’re absolutely free to shut up and listen to my speech. Also, your speech is a violent assault on me.”

In second place, it’s an anonymous comment about where things go from here:

Unfortunately, the only way out might be to the bottom and through.

Provoking Trump to use the Insurrection Act won’t take much but it will also be the only way that either he gets convicted on impeachment by the current Senate or a subsequent Democratic one with 60 (likely needing 65) votes.

Short of that everyone is content to just piss, moan and wait out the clock which isn’t the appropriate action here, and street protesting has its limits.

You have an entire Overton Window to revert to pre-2016, trillions of dollars to snatch and grab from billionaires and an entire political party to crush, and no one seems to be writing a Project 2026 to do that, both a public half with the policy changes and machinery to govern and the unitary executive fiat reversions of a hundred years of conservative jurisprudence, followed by the hidden half that requires convincing the remaining regional military leadership to coup the GOP out of existence plus logistics for disasters and conflict zones that you hope never to have to need.

A Democratic Presidential Candidate is going to need a menu of options and priorities to pursue hitting the ground running on or prior to 2028 because they are going to have to use the same powers written and unwritten Trump claimed to restore democracy, it’s going to be messy, and it sure as shit won’t follow rule of law or allow 77.5 million Trump voters to walk free once voter rolls are examined for the last 3 or 4 election cycles within this plan (If the GOP wants to try to seize them then the responsibility should be to follow through and use it on them first).

For editor’s choice on the insightful side, we start out with a comment from Arianity about the FTC’s threat of an “investigation” into Apple’s supposed liberal news bias:

Part of fascism is weaponizing things others care about. If they know you care about free speech, they use the trappings of free speech to help push fascism.

Next, it’s Stephen T. Stone with a thought about where the claims of bias come from:

And the algorithm probably leans toward citing left-leaning sources (or sources perceived to be left-leaning) because those sources have far more credibility in re: reporting actual facts. I’m sure that pisses off the MAGA crowd.

Over on the funny side, both top comments come from MrWilson again. In first place, it’s a comment about Trump’s apparent belief that he’s an absolute ruler:

Well, I mean, he was in fact elected in the biggliest landslide victory of 600% of the electoral vote and over 1000% of the popular vote because he’s the…look, nobody understands nuclear like he does, and the Chinese are just ripping us off, so you just have to raise tariffs on the Swiss Prime Minister because she’s just nasty and prices are down everywhere like you’ve never seen and all the experts are saying he should have won the Olympic Gold medal in everything but they cheated him out of it because they’re just awful people like you’ve never seen and everybody knows and windmills cause cancer and have you seen his ratings because they’re the best ever, everyone loves him except fake people. Thank you for your attention to this.

In second place, it’s a comment about how so many high-ranking Trump loyalists are incompetent and stupid:

Apply Dunning-Kruger directly to forehead.

For editor’s choice on the funny side, we start out with a reply from Scott_in_MI to the assertion that Brett Kavanaugh knows the law better than his critics:

Objection – assumes facts not in evidence.

Finally, it’s Thad invoking a well-known image in response to our description of how the DOGE grant review process operated:

That’s that butterfly meme, right?

That’s all for this week, folks!

Five Years Ago

This week in 2021, we looked at how state laws around community broadband were harming communities during the pandemic, just as one Congressional representative introduced a new such law to do so nationwide. Minneapolis joined the list of cities banning facial recognition tech, while it was revealed that CBP’s use of the technology identified fewer than 300 imposters after gathering 50 million face photos. We also wrote about how history shows Section 230 isn’t just for startups, while North Dakota was considering an anti-230 bill that would let people sue you for reporting their content to Twitter.

Ten Years Ago

This week in 2016, a California judge worryingly ordered Apple to create a new iPhone backdoor following the San Bernardino shooting. Apple responded to the order, and soon after we wrote about how the new backdoor would work on modern iPhones too. A lot of people were extremely confused about what exactly the order would do, including many lawmakers and nearly all the presidential candidates, and we dismantled a lot of the myths going around including the false notion that Apple had done this 70 times before. Also, a footnote in the DOJ motion to compel Apple revealed that the whole mess was caused by the San Bernardino health department resetting Syed Farook’s password.

Fifteen Years Ago

This week in 2011, evidence suggested that major film studios were uploading movie clips to YouTube and pretending they were pirated, a CBS reporter uploaded footage of the Grammys to YouTube only to have CBS send a takedown notice, and the target of one of Liberty Media’s mass infringement lawsuits was fighting back. We dug deeper into why DHS’s domain name seizures were almost certainly illegal, while DHS was being cagey about whether or not it seized Mooo.com and took down 84,000 sites in the process. Meanwhile, Congress was getting ready to reintroduce COICA and Ron Wyden was speaking out against it.

The Trump administration’s project for erasing the parts of American history they find inconvenient continues unabated. But that doesn’t mean it doesn’t hit the occasional roadblock.

In January, the administration removed portions of an exhibit at the former Philadelphia home of George Washington that made reference to 9 slaves he owned that spent time at the house. That Washington owned slaves is not a matter of opinion. He did. That he also rotated those slaves in and out of the home, moving them elsewhere for short periods of time, all to get around laws in Pennsylvania that slaves within its borders for a certain period of continuous time would be automatically freed, is also uncontroversial to state. He did that. One of our founding fathers that brought “freedom” to America was also a slave owner. He wasn’t alone.

The Trump administration doesn’t like being reminded of that history. It also prefers that younger generations never learn of that history. I’d call it jingoism, but that doesn’t feel sufficient. This rings as something far more dastardly, fit for the musings of George Orwell.

Well, the city sued to have the exhibit restored and it appears the Judge in the case, a George W. Bush appointee, agrees with my assessment. You can read as much in her blistering opening in her ruling, in which she also orders the government to restore the exhibit to its previous state.

As if the Ministry of Truth in George Orwell’s 1984 now existed, with its motto ‘Ignorance is Strength,’ this Court is now asked to determine whether the federal government has the power it claims — to dissemble and disassemble historical truths when it has some domain over historical facts. It does not.

The ruling, which you can read embedded below, is actually quite technical. It turns out that the agreements, under which these specific sites operate, are shared between the city and federal governments, and they are both old and complicate the government’s efforts.

The layman’s version of this is that several historical sites in Philadelphia were created by an act of Congress in the 1940s. Ownership of the site is retained by the city, while curation of the exhibits are maintained only under the agreement of both the federal government and city government. Adding to the complication is that a 2006 updated agreement between both parties had a short term attached to it, but there is also a survivabilty clause, which states that the expiration of the term of the agreement doesn’t mean that the city loses its rights to agreement on the curation of the exhibits.

Although the 2006 Agreement, as updated by the Third Amendment, ceased as of May 1, 2010,94 the terms in its Project Development Plan remained effective under the Third Amendment Survival Clause. The Survival Clause states that “provisions which, by themselves or their nature are reasonably expected to be performed after the expiration or termination of this Third Amendment shall survive.”95 Because the President’s House project was not contemplated to be completed by the expiration of the Third Amendment, it was reasonably expected that terms relating to the Project Development Plan would remain in effect to ensure that the commemorative exhibit was realized in accordance with the parties’ initial plan. While the Third Amendment granted NPS the right to interpret the exhibit after it was completed, it is the Project Development Plan that established the interpretive framework that NPS would employ. Profound alterations to that framework, seen here in the effort to remove all references to slavery, AfricanAmerican Philadelphia, and the move to freedom for the enslaved, would, under the Project Development Plan, require the written approval of both the City and NPS.

Whoops.

Now, this doesn’t mean that this judge spared words of disgust at the general plan that the federal government is attempting to carry out.

Defendants have completely ignored their legislatively imposed duties. They have disregarded statutory authority, compelled by Congress, by taking unilateral action without seeking agreement from the City of Philadelphia. An agency, part of the Executive branch, is not entitled to act solely as it wishes. Rather, it is the Legislative branch which authorizes agency action, and the Executive branch must comply with that direction.

There’s a lot more in there, but it’s largely legally technical in nature. What is obvious from the analysis in the ruling is that, at least in this one case, the federal government acted outside of its authority due to agreements struck as a result of legislation from Congress that are in good standing. I fully expect the Trump administration to waste time and resources by appealing this decision, but this is fairly straightforward stuff.

Trump, no matter how hard he pretends, is not a king. He does not have as much power as he desires. He cannot change history. In far too many places, he is hiding that history, but he can’t change it.

And, at least in this case, at this moment, he has found the limits to his power.

We are calling on technology companies like Meta and Google to stand up for their users by resisting the Department of Homeland Security’s (DHS) lawless administrative subpoenas for user data. 

In the past year, DHS has consistently targeted people engaged in First Amendment activity. Among other things, the agency has issued subpoenas to technology companies to unmask or locate people who have documented ICE’s activities in their community, criticized the government, or attended protests.   

These subpoenas are unlawful, and the government knows it. When a handful of users challenged a few of them in court with the help of ACLU affiliates in Northern California and Pennsylvania, DHS withdrew them rather than waiting for a decision. 

But it is difficult for the average user to fight back on their own. Quashing a subpoena is a fast-moving process that requires lawyers and resources. Not everyone can afford a lawyer on a moment’s notice, and non-profits and pro-bono attorneys have already been stretched to near capacity during the Trump administration.  

 That is why we, joined by the ACLU of Northern California, have asked several large tech platforms to do more to protect their users, including: 

1.  Insist on court intervention and an order before complying with a DHS subpoena, because the agency has already proved that its legal process is often unlawful and unconstitutional;  
2. Give users as much notice as possible when they are the target of a subpoena, so the user can seek help. While many companies have already made this promise, there are high-profile examples of it not happening—ultimately stripping users of their day in court;  
3. Resist gag orders that would prevent companies from notifying their users that they are a target of a subpoena. 

 We sent the letter to Amazon, Apple, Discord, Google, Meta, Microsoft, Reddit, SNAP, TikTok, and X.  

Recipients are not legally compelled to comply with administrative subpoenas absent a court order 

 An administrative subpoena is an investigative tool available to federal agencies like DHS. Many times, these are sent to technology companies to obtain user data. A subpoena cannot be used to obtain the content of communications, but they have been used to try and obtain some basic subscriber information like name, address, IP address, length of service, and session times.  

Unlike a search warrant, an administrative subpoena is not approved by a judge. If a technology company refuses to comply, an agency’s only recourse is to drop it or go to court and try to convince a judge that the request is lawful. That is what we are asking companies to do—simply require court intervention and not obey in advance. 

It is unclear how many administrative subpoenas DHS has issued in the past year. Subpoenas can come from many places—including civil courts, grand juries, criminal trials, and administrative agencies like DHS. Altogether, Google received 28,622 and Meta received 14,520 subpoenas in the first half of 2025, according to their transparency reports. The numbers are not broken out by type.   

DHS is abusing its authority to issue subpoenas 

In the past year, DHS has used these subpoenas to target protected speech. The following are just a few of the known examples. 

On April 1, 2025, DHS sent a subpoena to Google in an attempt to locate a Cornell PhD student in the United States on a student visa. The student was likely targeted because of his brief attendance at a protest the year before. Google complied with the subpoena without giving the student an opportunity to challenge it. While Google promises to give users prior notice, it sometimes breaks that promise to avoid delay. This must stop.   

In September 2025, DHS sent a subpoena and summons to Meta to try to unmask anonymous users behind Instagram accounts that tracked ICE activity in communities in California and Pennsylvania. The users—with the help of the ACLU and its state affiliates— challenged the subpoenas in court, and DHS withdrew the subpoenas before a court could make a ruling. In the Pennsylvania case, DHS tried to use legal authority that its own inspector general had already criticized in a lengthy report.  

In October 2025, DHS sent Google a subpoena demanding information about a retiree who criticized the agency’s policies. The retiree had sent an email asking the agency to use common sense and decency in a high-profile asylum case. In a shocking turn, federal agents later appeared on that person’s doorstep. The ACLU is currently challenging the subpoena.  

Read the full letter here

Originally posted to the EFF’s Deeplinks blog.

It’s all well and good that we have a system of laws and rules in place. For the most part, the bumpers on the bowling lane help keep a lot of stuff on the field of play (to mix metaphors), even if powerful politicians would rather have the rules apply to everyone else but them.

This simply isn’t working during Trump’s second term in office. The rules and laws (and the oft-referenced “rule of law”) are still in place. But they don’t mean much when there are no meaningful methods of enforcement.

Trump continues to staff the DOJ with prosecutors who have never been subjected to the legally required confirmation process. To be fair, it’s always been a struggle to staff Trump’s DOJ. Those who haven’t quit because they refuse to engage in vindictive prosecutions are being fired because they either won’t engage in vindictive prosecutions or they’re simply not doing it as hard and as fast as Trump would like.

Plenty of people who used to serve Trump personally as his attorneys have been elevated into top-level prosecution roles, despite their complete lack of relevant experience. None of these people have been appointed legally.

Judges have been pushing back, which has led to Trump’s former insurance lawyer, Lindsey Halligan being unceremoniously ousted from her role as a US attorney. Alina Habba spent most of a year generating massive conflicts of interest after being quasi-appointed to the position of US Attorney. She did this while still employed by Trump as his personal lawyer. Last December, she resigned from the position she never held legally and is now just another Trump lawyer who gets to hang around in the West Wing.

John Sarcone — Trump’s former campaign lawyer — was disqualified by a judge in January because he, too, had not been legally appointed to his position because Trump (and AG Pam Bondi) decided anyone who Trump wanted to be a US attorney could be one, even if that meant skipping the confirmation process entirely.

That didn’t bode well for Trump’s revenge fantasies. Sarcone being benched by the bench meant that all of his subpoenas targeting NY state attorney general Letitia James were no longer valid.

If the president decides he doesn’t want to subject his prosecutorial appointees to the confirmation process, that’s fine. But they only get to serve for so long (120 days) before they have to be replaced with a confirmed nominee. If that doesn’t happen, the court system gets to appoint a prosecutor to the now-open position.

The courts did this. And here’s where it gets supremely sticky. It didn’t take, as Brendan Lyons reports for the Times Union:

The White House on Wednesday evening fired a new interim U.S. attorney in New York’s Northern District less than five hours after a panel of federal judges had appointed Donald T. Kinsella to the position.

The swift termination of Kinsella, a former longtime federal prosecutor, underscored the ongoing tensions in federal districts where the administration of President Donald J. Trump has clashed with judges who have declined to appoint his interim appointments of U.S. attorneys who have not been confirmed by the Senate.

That’s insane. It probably took more time to discuss the appointment than it did for Trump to fire Kinsella. Kinsella was the court-appointed placeholder — one that could only be replaced by a nominee confirmed by the Senate.

But that’s not happening here. Not only did the administration fire Kinsella, but it immediately declared John Sarcone was still the acting US Attorney, no matter what the court had declared. And rather than caution the administration against ritually abusing the process to keep former Trump lawyers in positions of government power, Trump’s high-level officials got up on the socials to make sure everyone knew this president is actually a king.

On Wednesday evening, after the Times Union first reported Kinsella’s appointment as well as his subsequent firing by the White House, the U.S. deputy attorney general, Todd Blanche, posted on X: “Judges don’t pick U.S. Attorneys, @POTUS does. See Article II of our Constitution. You are fired, Donald Kinsella.”

Hopefully, the court will just appoint someone else and force the administration to keep showing its autocratic ass until one of the White House bumblefucks says or does something that can’t be walked back. Attrition is the name of the game here. And I think there are more than enough qualified prosecutors available to outlast Trump’s revolving door of personal lawyers willing to accept government positions in lieu of a personal check from Trump.

And let’s not forget that Sarcone was probably picked not just for his allegiance to Trump, but because Trump is always willing to help out a fellow grifter.

Sarcone ran for Westchester County district attorney as a Republican in 2024 but lost to eventual winner Susan Cacace, a Democrat. He was later nominated by the Trump Administration to be U.S. attorney for the Northern District of New York, which covers the Capital region, North Country, Central New York and parts of the Southern Tier and Hudson Valley. But neither the U.S. Senate nor federal judges confirmed him, so the Trump Administration made him a special attorney for the region, devoid of term limits and traditional oversight. 

Questions were eventually raised about his residence, since he had lived and campaigned in Westchester just a year before being named U.S. attorney for the Northern District of New York. The Times Union reported that Sarcone’s listed address was a boarded-up building. Following that report, Sarcone ordered his staff to remove Times Union journalists from the office’s press distribution list.

That’s who Sarcone is. And that’s who he is going to be. If the courts are serious about standing up to abuses of executive power, it might be time to engage in a war of attrition.