There’s a famous Mitchell & Webb sketch where two SS officers, mid-conversation on the Eastern Front, suddenly notice something troubling about their uniforms. “Hans,” one asks, peering at his cap, “are we the baddies?” The skulls had been there the whole time. The skulls are kind of a giveaway. But it took a while for the question to surface. You’ve probably seen it:

I thought about that sketch reading Wired’s reporting on the internal turmoil at Palantir, where both current and former employees are starting to ask that question of their own work:

Around that time, two former employees reconnected by phone. Right as they picked up the call, one of them asked, “Are you tracking Palantir’s descent into fascism?”

“That was their greeting,” the other former employee says. “There’s this feeling not of ‘Oh, this is unpopular and hard,’ but ‘This feels wrong.’”

Two weeks ago, we wrote about Palantir going mask-off for fascism, specifically about CEO Alex Karp’s company posting a 22-point manifesto that included some genuinely ugly stuff about how “certain cultures” are “regressive and harmful” and how pluralism is a “shallow temptation.” I argued that this kind of public ideological positioning was both morally bankrupt and strategically suicidal. The moral bankruptcy part should be obvious (if it’s not, go do some soul-searching). But doing so at a time when American-style fascism is historically unpopular basically everywhere, including within the US, just seems like you’ve bet on the losing team at a time when it’s clear they have no chance of coming back to win.

That’s quite a decision for the company, given that Palantir is supposed to be in the business of using technology to predict how strategic decisions will play out.

It turns out a lot of Palantir employees agree that maybe it’s not so good for them or the company to be picking the morally bankrupt, historically unpopular position. Better late than never, I suppose.

There’s a “well, duh” element to all of this that we shouldn’t gloss over. Palantir has been Palantir for two decades. The company is named after the corrupting all-seeing surveillance orb from Lord of the Rings. Its initial venture capital came from the CIA. Peter Thiel co-founded it. The entire pitch has always been mass data aggregation in service of authoritarian state power. If you took a job there at any point in the last twenty years, the skulls were sitting right on top of the cap, plainly visible, and people were pointing at them constantly.

So in one sense, the current employee soul-searching is just the sort of late-to-the-party realization that deserves to be called out. Where, exactly, did people think this was going?

But it’s also a sign of how far Karp is willing to go — stripping away the plausible deniability that let employees tell themselves they were just building tools, not endorsing a worldview. Palantir didn’t just keep doing what it had always been doing. Karp made a deliberate choice to escalate, both in what the company is building and in how openly it’s announcing what it’s building it for.

The Wired piece documents the various moments where things began shifting internally: the deepening ICE deportation infrastructure work, the death of nurse Alex Pretti during anti-ICE protests, the questions about whether Palantir’s Maven targeting system was used in the missile strike on an Iranian elementary school that killed more than 120 children. And then, to top it all off, Karp published a manifesto telling employees and customers and the entire world that the company now believes pluralism itself is a civilizational error.

The most damning revelation in the Wired piece comes from a Palantir privacy and civil liberties (PCL) employee in a recorded internal AMA — and it shows that the entire concept of a PCL team at the company is window dressing, there so Karp and others in management can pretend they’re not quite as authoritarian as they actually are.

At least one of these AMAs was organized independently of PCL leadership by two team leads, including one who worked directly on the ICE contract for a period of time. “This was very rogue,” a PCL employee who worked on the ICE contract said in a February AMA, a recording of which was obtained by WIRED. “Courtney [Bowman, head of the privacy and civil liberties team] doesn’t know that I’m spending three hours this week talking to IMPLs [Palantir terminology for its client-facing product teams], but I think this is the only real way to start going in the right direction.”

Throughout the lengthy call, employees working on a variety of Palantir’s defense projects posed hard questions. Could ICE agents delete audit logs in Palantir’s software? Could agents create harmful workflows on their own without the company’s help? What is the most malicious thing that could come out of this work?

Answering these questions, the PCL employee who worked on the ICE contract said that “a sufficiently malicious customer is, like, basically impossible to prevent at the moment” and could only be controlled through “auditing to prove what happened” and legal action after the fact if the customer breached the company’s contract.

And then the big (if unsurprising) reveal that Karp doesn’t seem to think much of civil liberties and these employees are basically forced to see if they can distract the dictator-wanna-be at the top (does this sound familiar?):

At one point during the call, one of the employees tried to level with the group, explaining that Palantir’s work with ICE was a priority for Karp and something that likely wouldn’t change any time soon.

“Karp really wants to do this and continuously wants this,” they said. “We’re largely at the role of trying to give him suggestions and trying to redirect him, but it was largely unsuccessful and we seem to be on a very sharp path of continuing to expand this workflow.”

So the internal civil liberties function has been reduced to politely suggesting that maybe the CEO not do the worst version of the worst thing, and getting overruled.

Cool cool cool.

What seems to have finally broken the dam, though, was not the deportation work or the missile strike — it was the manifesto. As one employee posted internally after the company published its 22-point screed:

“I’m curious why this had to be posted. Especially on the company account. On the practical level every time stuff like that gets posted it gets harder for us to sell the software outside of the US (for sure in the current political climate), and I doubt we need this in the US?” wrote one frustrated employee. The message received more than 50 “+1” emojis.

The actual harms — the deportations, the surveillance infrastructure, the dead children — generated internal Slack threads and uncomfortable AMAs. The branding embarrassment generated more of a revolt.

The skulls were always on that hat. People only really started pointing at them when management decided to put the hats on billboards.

Two things are worth calling out separately:

Workers who take jobs at companies like Palantir have an obligation to think harder about what they’re building before they build it. The “I was just writing code” defense has always been weak, and it gets weaker the more obvious the application becomes. We wrote recently about how the “bring your whole self to work” era has pretty much ended, and how workers in a tighter labor market are increasingly going to find themselves at companies whose values they can’t fully stomach. That’s part of what’s happening in a labor market where management has way more leverage. But it’s also true that some companies have been waving very large red flags for a very long time, and “hey, I needed a job” excuse only goes so far when the job is building deportation infrastructure and missile targeting software that ends up blowing up schoolchildren. That shit sticks to people. And it should.

The second is that better-late-than-never still matters. The PCL employees pushing back internally, the Slack threads demanding accountability, the rogue AMAs organized without leadership’s blessing — this is the kind of pressure that has, in the past, gotten Google to drop Project Maven (which the amoral Palantir, naturally, swooped in to take over). Internal dissent is one of the only mechanisms that actually constrains what companies like this do. When employees stop accepting the rationalizations, things change. Sometimes the company changes. Sometimes the employees leave and build something better. Either one is better than just letting things continue as they are.

You can argue that Palantir taking on Project Maven when Google dropped it means that internal protest is fruitless, but that’s simply not true. Internal protest makes it more expensive and difficult for companies to get away with doing bad things. It may not stop them all, but it adds real friction. And if, as now, we start to add some real social baggage for being the software devs who were “just coding for a paycheck,” it can definitely make a bigger difference over time.

Which brings us back to why Karp’s manifesto might end up being a strategic disaster even setting aside the moral question. Palantir’s value proposition has always rested on a kind of plausible deniability: yes, we build surveillance tools, but we have a civil liberties team, we care about safeguards, we’re the responsible adults in the room. The manifesto torched that framing on purpose. And now the company’s own engineers are saying, in writing, that the post is making it harder to sell software, harder to recruit, harder to defend the work to friends and family.

These kinds of things should be costly. That’s how society prevents people from just going along with enabling horrendous human rights violations because the pay and perks are decent.

And at Palantir, the skulls are on the cap. Some people are finally noticing.

Hans, are we the baddies? Yeah. You probably are. So, are you going to keep wearing those skulls?

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Not that ICE was ever that great about taking care of all the people it detains. It certainly wasn’t during Trump’s first term. The DHS Inspector General released a report that said there were numerous problems in a single detention facility. Not only that but what was contained in the report was incomplete because the inspectors were both unwilling and unable to dig deep into the issues. ICE officers and officials were far from compliant and inspectors made it worse by questioning detainees about conditions in public areas often containing… you guessed it: ICE officers.

They’re certainly not any better now. Detentions are way up and this iteration of immigration enforcement officials cares even less about the rights and well-being of detained migrants than those employed during Trump 1.0. Not for nothing, but there’s a very obvious reason DHS is doing everything it can to prevent congressional members from inspecting detention centers. We know what it is. Congressional reps know what it is. And for damn sure the people keeping them out of detention centers know what it is.

If the ignition point is the indiscriminate ejection of non-white people from the United States, overseen by ghoulish MAGA acolytes with white Christian nationalist leanings, and carried out by roving bands of masked kidnappers.

The inevitable outcome of everything listed above is this:

The number of immigrants who have died while in Immigration and Customs Enforcement custody has reached an all-time high this fiscal year.

Twenty-nine people have died in ICE custody since October, the start of the federal government’s fiscal year, already surpassing 2004’s toll of 28, the previous record, according to government data.

The latest death in custody has been, of course, conveniently blamed on the victim.

The most recent death was  of 27-year-old Aled Damien Carbonell-Betancourt, a Cuban man held in ICE custody in Miami, Florida. According to an initial report released by ICE on the evening of April 16, Carbonell-Betancourt was found unresponsive in his cell on the morning of April 12. The report lists the cause of death as a “presumed suicide,” but the official cause remains under investigation.

Since it appears the government will be investigating itself, we can safely assume “presumed” will be removed from the cause of death as soon as the DHS makes the cause official.

And, of course, ICE (via its acting director) said this was exactly what we should expect from it:

During a congressional hearing also on Thursday, acting ICE Director Todd Lyons said there are a high number of deaths this fiscal year “because we do have the highest amount in detention that ICE has ever had since its inception in 2003.” 

Not a great excuse. While it’s obviously true that increases in one thing might lead to increases in related things, it’s not guaranteed. And it’s not a great look to tell Congress of course more people are dying. More people are being detained.

You’re supposed to keep the numbers down on the death side, no matter how many people you decide absolutely can’t be allowed to go un-detained for the (allegedly) engaging in civil violations. And while (now former) acting director Lyons goes on to say “We don’t want anyone to die in custody,” I kind of don’t believe him?

He also said this:

“I hope that’s a policy of anyone that has to be tasked with detaining someone.”

You hope? You set the policies. You enforce them. You’re not allowed to hope.

More deaths are happening where most migrants are being sent: Texas. Texas is in the Fifth Circuit, which has been incredibly receptive of every new awfulness this administration engages in. Consequently, as many migrants as possible are sent there as soon as possible, no matter where they’re initially detained. Those deaths include one that has been ruled a homicide: the killing of Geraldo Luna Campos, who the DHS initially claimed had been placed in segregation after he allegedly became “disruptive” while waiting in line for medication. That narrative has since been replaced with something far closer to the truth.

[T]he El Paso Medical Examiner’s Office ruled his death a homicide due to “asphyxia due to neck and torso compression.” The FBI is now investigating the death.

This won’t be the last homicide. The DHS only has the most minimal interest in protecting and caring for the thousands of people federal officers have detained. ICE is completely unwilling to police itself. And the administration overseeing all of this could not care less about the people they’ve decided are unworthy of residing in this country. And the fiscal year isn’t even over yet. There are still five months to go. A ghastly record is going to be set by this administration. Hopefully, it will never be broken.

More than 4,000 Hollywood insiders recently signed a letter blasting Paramount’s planned $111 billion merger with Warner Brothers, noting that the massive consolidation will be very harmful to labor, consumers, and creatives.

As we saw with the AT&T Warner deal, history generally supports this; these debt-riddled deals are broadly, uniformly harmful. Companies that take on this kind of debt always try to address it by cutting corners, raising prices, and firing thousands of people. With the debt from both the CBS and Warner deals (and over-leverage into AI), the Ellison’s media buying spree has the potential to be extra ugly.

Amusingly, as they gun for regulatory approval, the Ellisons are apparently trying to circulate the claim that all of the recent negative press about the merger is somehow Netflix’s fault. Paramount insiders have been trying to seed the idea in outlets like Puck News that the Hollywood campaign is some sort of Netflix op:

“But I’m also hearing that there’s some suspicion inside Paramount and beyond that Netflix is astroturfing the glitzy campaign as a way to either delay the deal—remember, the Ellisons have to pay WBD shareholders a ticking fee of roughly $650 million per quarter if the closing drags past September 30—or kill it outright.”

There’s absolutely no evidence this is actually true. The organizers of the letter, including Democracy Defenders Fund (which denied any Netflix involvement to Puck), the Committee for the First Amendment, and the Future Film Coalition, are opposing it because it will be a labor bloodbath for an already reeling Hollywood.

Puck goes on to note that Netflix is hiring policy folks to oppose the deal as it faces regulatory approval challenges (most likely among state AGs), but that’s not particularly surprising:

“So is this groundswell as organic as it looks? The Democracy Defenders Fund, run by veteran Washington operative Norm Eisen, strenuously denies that Netflix is meddling backstage—and Netflix also insists it has nothing to do with the letter or protest. That said, I’ve heard Netflix has been quietly shopping for public affairs operatives to help oppose the deal, and has retained economist Nicholas Hill—a former D.O.J. Antitrust Division official who testified for the plaintiffs in the Live Nation trial—to engage with regulators about the Paramount–WBD merger.”

You’ll recall that Netflix’s $82.7 billion offer was beaten out by Paramount’s $111 billion proposal.

No mergers would have been the ideal outcome in a country with functional antitrust enforcement. If you had to choose one, the Netflix offer was likely the better one for Hollywood.

Netflix and Warner Brothers had far less structural redundancies, which likely meant fewer overall layoffs. Netflix was willing to pay mostly cash, whereas Paramount is backing the deal with a bunch of Saudi and Chinese investment, which raises influence concerns. Oh, and Larry Ellison has been an open and enthusiastic supporter of authoritarianism.

That said, if history is any indication, Netflix doesn’t have to do much of anything. There’s serious potential this could make stuff like Yahoo, Tumblr, or Quibi seem extremely competent.

Every Warner Brothers transaction to date has been a disaster, and there’s very little indication this deal will be any exception. Should Paramount executives stumble in execution to remain competitive and manage the debt load (and there’s very good evidence to suggest that’s already happening), all Netflix has to do is sit back, watch Paramount/Warner collapse, then buy it for half the price (or less) a few years from now.

You’re all sick of me saying we need to have more nuance in the discussion about AI use in the gaming industry. I get it. I’m also not going to stop. And I hope you will have noticed that I have called for nuance in both directions. While I’m more optimistic than many in our community that there is a place for this technology in the industry, and that it could actually have some net positive effects therein, I’m also not blind to the potential negative consequences. Concerns about industry jobs are a very real thing. A desire to protect the artistic intent of game makers is a worthy enterprise. Quality of output is paramount.

That’s why I’ve been repeating over and over again that we should be talking about how AI will be used in games, not if. The “if” question has already been answered in the affirmative, at least for some portion of the industry. Now we need to build very real guardrails around the “how.”

And, to be frank, comments such as those from Fallout co-creator Tim Cain are wildly unhelpful in the opposite direction.

Fallout co-creator Tim Cain says a world where AI generates games, TV shows, and even doctor’s appointments is inevitable, and he’s even “looking forward” to that future.

In arguably the veteran game developer’s saddest “fun Friday” video ever, Cain envisions a world in which dead MMOs come back to life with AI-generated players mimicking real-life personalities, where generative AI makes Joey from Friends a lawyer instead of a struggling actor, and where you take vacations in VR. Yes, really.

He goes way, way beyond even that. He talks at some length about using AI to create more episodes of retired shows that people still hunger for. As a massive fan of Firefly, I can’t tell you how ecstatic I’ve been these past several weeks with Nathan Fillion’s announcement that the show would be coming back in an animated form to build on the story that was infamously canceled by Fox after only 1 season. If that announcement was instead made by the rightsholder and said the new episodes would be created whole cloth using AI and that they would be customizable and tailored to my desires, my reaction would have been horror, not excitement.

AI needs to be a tool on the perimeter, not the creative force itself. I don’t want the pen telling me the story of Odysseus; I want the writer to use the pen to do so. And if the pen turns into a typewriter, which then turns into a word processor, that all works. There is still a human being telling the story.

Even Cain’s remarks tailored specifically for the gaming industry ring super hollow.

Cain goes on to say this will be especially handy for MMO players, in particular those who miss being able to play games that aren’t active anymore. “Have an AI make a local server,” he proposes. “Great, now you can play it again. Oh, it’s empty? Fill it with AI players. Have it watch videos of people who have played that game and just fill it up with players, and it mimics their personalities.”

Look, Cain is a veteran of the industry who was instrumental to one of the most beloved video game IPs of all time, but with all due respect, the idea of playing Ultima Online with AI-generated players designed to mimic the personalities of my friends who I used to play with… is genuinely one of the grimmest, most dire, dystopian realities I can possibly fathom. Likewise, my heart sinks at the thought of playing AI-generated stories with AI-generated characters that I can change however I want. That sounds like it would entirely rob a game, or any work of art, of its artistic intent. But alas, Cain reckons this is all inevitable, so get ready.

This is what the AI detractors are worried about. And when you hear an industry veteran speak so glowingly about gamers operating within these soulless arenas designed merely to mimic the authentic fun that these games produced, it’s easy to understand the concern. This isn’t helpful. Pretending to not understand that the very fucking point of MMOs is to play with other human beings in a single realm, not ginned-up robots pretending to be human, is incredibly frustrating.

And Cain, oddly enough, seems completely unconcerned with artistic intent at all. There is no reason why his example of requesting changes to a TV show wouldn’t translate into a video game. And if people can just customize games not through mods, but through fundamental changes driven by AI requests, then there is no game anymore. There is merely a shell of a game where the player is then free to remix it to extents that transform the intent of the maker completely.

I had to search around a lot to see if Cain was being sarcastic or making a fake attempt at over the top AI evangelism purely to make a point. Everything I have seen and read indicates that’s not what this was. And, again, that makes all of this very unhelpful if you want to get into some real discussions about where this technology should be used and where it shouldn’t.

As numerous posts on this blog have emphasised, the underlying idea of open access (OA) – allowing anyone to read and share published academic research for free – is great in principle, but in practice has failed in important ways. That’s because traditional academic publishers have subverted the open access model to such an extent that the costs for research institutions of publishing in OA journals have barely changed at all. And yet one of the other key aims of open access was to save money while widening availability. Against that background, a natural question to ask is: if open access has failed to deliver savings, why bother supporting it? Cancer Research UK, the world’s leading cancer charity, has evidently asked itself that question and come up with an answer, which it explains in a post entitled “Why we won’t be funding open access publishing any more”:

We need efficient scholarly communications to spread scientific ideas via a fair economic model. We currently don’t have that. The open access movement was bold and promising, but ultimately disappointing. Now is the time to stop and call for a new way to make publishing work…

…

Ceasing to fund open access in the way we currently do will save us £5.2m of donors’ money over the next three years. That’s a substantial amount which can be put towards cancer research.

The post by Dan Burkwood, Director of Research Operations and Communications at Cancer Research UK, explains what exactly the problem is:

We currently fund open access publishing for our researchers in a number of ways. Despite hopes that this would enable a flourishing of open access dissemination of science, most of the growth has occurred in hybrid journals. These are publications that combine OA articles with those behind a paywall – this means the publishers will still charge for university and institute libraries to access them, even though researchers have paid for their work to be published. For us, this means we currently use donated money to fund our researchers, institutes and centres to publish OA research articles, yet they still have to pay to access the majority of journals in which those articles appear. The publishers are – so to speak – having their cake whilst also eating it.

These so-called “hybrid models” are discussed at length in Chapter 3 of Walled Culture the book (free digital versions available). They were presented as a transitional approach towards journals that were fully open access, but in many cases that transition hasn’t happened, not least because the hybrid model is so profitable for publishers, who therefore have little incentive to move to fully open access titles. Burkwood rightly points to a key reason why academic publishers continue to wield such power: the academic world’s insistence on using published articles in prestigious titles as a metric of success.

Cancer Research UK are working to widen the way we evaluate research in order to mitigate the heavy focus on publication outputs. It’s clear to us that a broader view of an applicant’s career is vital to gauge potential success. By signing up to DORA (San Francisco Declaration on Research Assessment), we encourage our reviewers to assess the quality and impact of research through means other than just journal impact factor. Additionally, we invite applicants to submit a narrative CV, allowing a more holistic view of their track record, research outputs and career progression.

But as he acknowledges, “Despite our, and others, attempts to limit the emphasis of the ‘publish-or-perish’ mindset, it will take time for the culture to change.” In the meantime, he suggests:

If researchers have no access to publishing funds they can publish their work for open access at no cost, but the publication will sit behind a paywall for 6 months (under embargo) before being deposited on Europe PMC open access – this is known as green open access.

Green open access provides full and free access to papers, but only after an embargo period, typically six months, but sometimes longer (gold open access provides instant access, but requires payment by researchers’ institutions.) That makes green OA a poor substitute for real, immediate open access.

The problem here is that such embargo periods have long been accepted as the norm, but that is only because a terrible blunder was made over two decades ago by the Research Councils UK (RCUK). In 2005, the RCUK stipulated that the work it funded would require open access publication. However, when the final version of the RCUK’s policy appeared in June 2006, it had a significant flaw, expressed in the following provision: ‘Full implementation of these requirements must be undertaken such that current copyright and licensing policies, for example embargo periods or provisions limiting the use of deposited content to non-commercial purposes, are respected by authors.’ As the leading open access scholar Peter Suber wrote at the time, this was a completely unnecessary concession:

Researchers sign funding contracts with the research councils long before they sign copyright transfer agreements with publishers. Funders have a right to dictate terms, such as mandated open access, precisely because they are upstream from publishers. If one condition of the funding contract is that the grantee will deposit the peer-reviewed version of any resulting publication in an open-access repository [immediately], then publishers have no right to intervene.

At the root of the issue of embargoes lies copyright. If researchers retained full control of the copyright of their articles, rather than assigning it to publishers, they could prevent any embargoes being applied to them.

Cancer Research UK’s decision is regrettable but understandable. The fear has to be that others will follow suit. While the hybrid model is not universal, it is widespread enough to undermine the open access idea. Until researchers refuse to publish in such hybrid titles, publishers will continue to profit from them. Given the unnecessary embargoes imposed on articles released under green open access, that leaves alternatives such as diamond open access, where there are no charges for anyone, an approach that has long been espoused on this blog.

Follow me @glynmoody on Mastodon and on Bluesky. Originally posted to Walled Culture.

Raids and arrests around the nation by federal immigration officers all feature the same thing: a bunch of people in masks shoving people into unmarked vehicles. What’s happening under Trump during his second term doesn’t feel like America. And it certainly doesn’t look like America. Instead, it looks like the actions of paramilitary jump-out squads, roaming US streets looking for people to “disappear.”

DHS and ICE officials have repeatedly tried to justify this level of person-by-person obfuscation as being essential to the safety of federal officers. But we all know what this is really about: protecting these officers from the consequences of their own actions. If safety was so paramount, the ICE officers sent to airports to… well, mainly just stand around… would have been wearing masks. But they weren’t. So the context (like detaining children or straight up murdering people on the streets) matters.

California’s legislature passed a law banning federal officers from wearing masks while carrying out their mass deportation efforts in the state. Governor Gavin Newsom signed it, triggering an immediate round of apoplectic responses from federal officials.

The law, however, didn’t last long.

A federal judge blocked the mask ban in February, ruling that it discriminated against the federal government because it did not apply to state troopers. The law made exceptions for undercover agents, protective equipment like N95 respirators or tactical gear, and other situations where not wearing a mask would jeopardize the operation. That judge let the ID law stand.

The state of California appealed this decision. Unfortunately for Californians and government accountability in general, the Ninth Circuit Appeals Court has upheld the lower court’s ruling.

We conclude that § 10 of the No Vigilantes Act attempts to directly regulate the United States in its performance of governmental functions. The Supremacy Clause forbids the State from enforcing such legislation.

While the lower court did suggest the California law might find its way around the Supremacy Clause issue by rewriting it to cover all law enforcement officers, not just federal officers, the Appeals Court wasn’t nearly as receptive to this argument. The legislature already has a bill prepped to do exactly this, but it seems unlikely to survive a federal court review following this ruling.

The district court asked the wrong question. By looking to the degree § 10 interfered with the activities of the United States, the district court applied a standard pertaining to States’ regulation of federal contractors and third-party employers, not the standard applicable to direct regulation of governmental activities of the United States.

[…]

The district court also misunderstood Clifton v. Cox, 549 F.2d 722 (9th Cir. 1977). There, in concluding that California could not criminally prosecute a federal officer despite allegations that he “exceeded his express authority” under federal law, we asked “whether the [officer’s] conduct was necessary and proper under the circumstances.” That standard is inapplicable here because § 10 of the No Vigilantes Act directly regulates inherently governmental conduct of federal officers carrying out their duties under federal authority.

Finally — and perhaps most distressingly — the Ninth Circuit completely sidesteps the public safety concerns that were the basis for this bill. The concerns weren’t theoretical. They were echoed by Trump’s own FBI, which issued a memo to law enforcement informing them that masked criminals posing as law enforcement officers had committed robberies, kidnappings, and sexual assaults.

None of that matters to the Ninth Circuit, which says it doesn’t even need to discuss the kind of public safety concern law enforcement generally uses to justify police misconduct or repeated rights violations.

California nonetheless contends that even if we determined that § 10 of the No Vigilantes Act likely violates the Supremacy Clause, we would still need to balance the equities. California specifically urges us to consider the public safety concerns which spurred the Act’s enactment. We decline to do so. Because the United States has shown a likelihood that the Act violates the Supremacy Clause, it has also shown that both the public interest and balance of the equities tip “decisively in . . . favor” of a preliminary injunction.

Oh, well. The masks stay on. And if it failed in this circuit, similar efforts are likely to fail in other appellate jurisdictions. The administration gets another “win” by arguing against the interests of the public it’s supposed to be serving.

James Comey is not exactly someone we’ve ever been a fan of on Techdirt. He was a terrible FBI director in so many ways. We’ve spent years criticizing the man — for his crusade against encryption, his supporting the FBI’s ridiculously aggressive impersonation of reporters, his embrace of the FBI’s program to coerce and entrap people down on their luck into fake terrorist plots, and much more. And, while the impact has been exaggerated, it is true that he took multiple actions violating DOJ procedures that likely helped get Donald Trump elected in 2016. So it’s not like I’m rushing to support the guy. He’s a bad cop and has been for some time.

But the indictment the Department of Justice handed down against James Comey on Tuesday is a truly embarrassing legal document, and everyone involved in producing it should be professionally radioactive for the rest of their careers. I would have said it’s one of the most embarrassing legal documents that this DOJ has produced, but remember, just a day earlier they filed a legal brief that was indistinguishable from a Truth Social post.

The charge, in its entirety, concerns this Instagram post from May 2025:

If you can’t see that, it’s an Instagram post from Comey showing some shells on some sand with the shells spelling out 8647 and the caption on the post saying:

Cool shell formation on my beach walk

For this — for posting a photo of arranged seashells in a slightly sassy pattern and posting it to Instagram — Comey has been charged with two federal felonies: threatening the President under 18 U.S.C. § 871, and transmitting a threat in interstate commerce under 18 U.S.C. § 875(c). (For what it’s worth Comey has claimed he didn’t arrange the sea shells, but just found them. It’s unclear if that makes much of a difference, it’s protected speech either way).

Ken “Popehat” White, who has perhaps done more than any other lawyer in America to explain First Amendment doctrine to laypeople, didn’t mince words about what this is:

The charge is preposterous and no competent or honest prosecutor would bring it. It represents a betrayal of the professional and ethical obligations of every U.S. Department of Justice attorney involved, and reflects the complete collapse of the Department’s credibility and independence in favor of a cultish and cretinous devotion to Donald Trump.

He’s right, and the way to understand just how right he is requires understanding the path that brought us here.

Because this is the second time the Trump DOJ has tried to indict Comey. The first attempt collapsed in spectacular fashion last year, after Trump — in what was apparently supposed to be a private direct message but accidentally went out as a public Truth Social post — demanded that Pam Bondi install Lindsey Halligan, a former insurance lawyer with no relevant experience, as a U.S. Attorney specifically because she had promised to indict Comey. The problem: Halligan wasn’t legally appointed. The entire indictment got tossed before the court could dismiss it for being ridiculous (which would have happened) because the person who filed it wasn’t allowed to file it.

As we noted at the time, this pattern of procedural self-sabotage is a recurring feature of an administration that treats legal procedure as an inconvenience rather than the actual point of having a justice system.

So how did the DOJ respond to that humiliation? By coming back with something substantively even worse. In theory, they tried fixing the “wrong person filed it” problem by having an actually legally appointed person file something… even if that something has no legal basis whatsoever. Progress! Sort of?

The seashell indictment was filed by W. Ellis Boyle, the U.S. Attorney for the Eastern District of North Carolina, with Assistant U.S. Attorney Matthew R. Petracca listed as the prosecuting attorney. Remember those names. They put their signatures on this. Boyle is listed as the U.S. Attorney for the Eastern District of North Carolina, but he’s serving in an acting capacity — Trump has nominated him multiple times, yet the Senate has still refused to confirm him.

The legal problem with the indictment is pretty easy to spot: to convict someone under either of the threat statutes the DOJ is invoking, the government has to prove the communication constituted a “true threat.” Under controlling Fourth Circuit precedent (this case is in North Carolina), a true threat is something “an ordinary, reasonable recipient who is familiar with the context in which the statement is made would interpret as a serious expression of an intent to do harm.”

As Ken White noted, the Supreme Court established this framework in Watts v. United States, a 1969 case involving an 18-year-old draft protester who said:

They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.

The Court found this was protected political hyperbole, not a true threat. An explicit statement about wanting a President in your rifle sights — protected.

If Watts isn’t damning enough, there’s United States v. Bagdasarian, a much more recent Ninth Circuit case where a man posted online statements about wanting to shoot then-candidate Barack Obama, including some genuinely vile racially explicit language about hoping Obama would be killed. The court held that even that did not constitute a true threat under the relevant statutes.

I’d be curious to hear from anyone defending this indictment whether they think Bagdasarian was wrongly decided. Or do we change the “true threat” standard when the target is Trump?

So the descending ladder of seriousness looks like this:

• Explicit racial language about wanting a President shot: protected
• Telling a crowd you want LBJ in your rifle sights: protected
• Posting a photo of seashells arranged on a beach to spell “86 47”: two federal felonies

Any first-year law student who’s taken a basic First Amendment course could tell you the seashell post is constitutionally protected. Any prosecutor with five minutes of research time would know that Bagdasarian and Watts exist. But, of course, as we’ve seen over and over and over again in the Trump era, the point is not to bring a good case or a winnable case. The point is just to punish Trump’s enemies with vexatious, vindictive prosecutions in hopes of creating a chilling effect among the populace and stopping them from criticizing the President with the thinnest skin possible.

Now, “86” has had various meanings over the years — to “86” something in restaurant slang means to remove it from the menu or get rid of it. The DOJ’s theory is apparently that when used about a person, it means to kill them. No one else believes that. This is the kind of motivated reading that requires ignoring both the dictionary and how actual humans use language.

But fine, let’s grant the absolute most uncharitable reading and say “86 47” means “get rid of the 47th President through killing.” Even granting that — even doing all the work for the prosecution — it’s still obviously protected political expression, and still obviously not a true threat under the controlling case law.

Which brings us to the part that genuinely cannot be explained by anything other than pure vindictiveness. Here is a tweet from Jack Posobiec, a prominent Trump loyalist/conspiracy theorist, posted in January 2022:

That tweet is still up. I just made that screenshot minutes ago. As of this writing, it has been online for nearly four years. No FBI investigation. No federal indictment. No felony counts. Literally no one thought that was an actual threat. Because it’s not. Apparently the DOJ’s theory of criminal threats has a loyalty-based expiration date — the same numerical expression is a felony when arranged in shells by a Trump critic and a perfectly fine tweet when posted by a Trump supporter about a different President.

Indeed, the fact that Posobiec seems to have no issue keeping this tweet up is itself a sign that the MAGA world knows it’s engaged in purely theatrical vindictive prosecution — and wants you to know they know. To them, once again, nothing here is about justice or the rule of law. It’s just “will this make the people I dislike upset.” That is their only motivating factor.

The DOJ has baked the selective prosecution argument directly into its own theory of the case. Comey’s lawyers will surely refresh the selective prosecution motion they filed in the first, dismissed indictment, and the facial absurdity of this one — combined with the existence of identical, ignored expression by Trump allies — makes that motion approximately as easy to support as such motions ever get.

There’s a specific kind of institutional rot in play here, driven entirely by Donald Trump and his minions. Competent authoritarianism is dangerous in obvious ways. Incompetent authoritarianism that keeps trying anyway is dangerous in different ways: it normalizes the use of state power for personal vengeance while demonstrating that the people wielding it will stop at nothing — even on the most facially ridiculous grounds. That’s a chilling effect doubled: a politicized DOJ, staffed by people who can’t pass a First Amendment quiz.

White is right that the indictment is unlikely to survive. Comey’s attorneys can challenge it on its face, arguing that even taking every allegation as true, seashells spelling “86 47” are protected by the First Amendment as a matter of law. The assigned judge was appointed by a Republican but is reportedly not a partisan hack, and the case law here is so clear that it would take extreme judicial bad faith to let this proceed. The selective prosecution motion is also stronger now than it was the first time, with Posobiec’s untouched tweet sitting there as Exhibit A.

But as White notes, surviving the motion to dismiss isn’t actually the point:

The point of the indictment is to demonstrate that the United States Department of Justice is wholly an instrument of Donald Trump’s senescent pique, no more independent of him than a boil on his ass. The point is to show that the administration can, and will, use the Department’s mechanisms to punish enemies. The point is to show that the Department can, and will, punish protected speech. The point is to show that the Department is staffed by committed fanatics willing to do anything, however unethical and unconstitutional, to promote Trump.

The point is to show that in the war between Donald Trump and the U.S. Department of Justice, Trump has won. Now they’re on the field slitting the throats of the wounded and looting bodies.

W. Ellis Boyle and Matthew R. Petracca put their names on this indictment. They will, presumably, lose this case the way the previous Comey case was lost — embarrassingly, on grounds that any competent attorney not engaged in cult-like performative fealty to a wannabe authoritarian could have anticipated. And when this is all over, when there is some accounting for what was done to the Department of Justice in these years, the people who signed the seashell indictment should never be trusted with prosecutorial power, a bar membership, or any position requiring professional judgment ever again.

The shells, for what it’s worth, were on a beach. The tide has presumably long since rearranged them. The Instagram post was taken down fairly quickly when the MAGA world lost their minds over it. The federal felony charges, somehow, remain.

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The administration’s anti-migrant tactics are now months into an indefinite period of continuous escalation. That protest efforts have escalated alongside it apparently means nothing to the officials spearheading this brazen attack on non-white people.

It wasn’t until federal officers began killing people in front of witnesses that the administration decided to dial things back a bit. But did it ever actually do it? Or did it just sideline the most famous faces associated with this wave of violence and unlawfulness?

Punting former DHS head Kristi Noem into the nosebleed section of the federal government didn’t do much to change things, not when “Border Czar” Tom Homan (the guy who more or less said protesters were to blame for the Minneapolis murders) is still hanging around and her replacement, Markwayne Mullin, looks like just another expendable MAGA footsoldier.

Some small sort of de-escalation seems to be happening now, but it’s hard to tell if this is due to policy changes, budget issues, or the natural result of pushing this hard for this long. Sooner or later, things tend to trend towards inertia, no matter how much motivational frothing is being done by those who aren’t actually on the front lines.

Then there’s the DOJ upsetting the administration’s own apple cart by admitting in court that ICE officers were committing illegal arrests by pouncing on migrants attending immigration hearings. Not that ICE officers have necessarily stopped doing this (there’s evidence to suggest at least some of them haven’t), but it does make it clear that continuing to do so is at least a violation of policy, as well as being, you know, actually illegal.

So, when things are being said about further de-escalation, you may as well start ingesting fistfuls of salt. First, here’s the good news, which comes from two unnamed DHS officials who insist things are being calmed down from the top down:

Donald Trump’s administration has reportedly instructed immigration enforcement officers to cut back on arrests inside courthouses and to no longer enter homes without a warrant, backing off two controversial policies that have sparked violent and chaotic scenes in the president’s mass deportation campaign.

Immigration and Customs Enforcement field offices across the country were verbally instructed by their superiors that they should no longer enter homes unless they have a judicial warrant, two Homeland Security officials told NBC News.

That would seem to be the least this administration could do since it would finally align ICE’s actions with the law and its internal policies. However, if these instructions are only be handed out “verbally,” it means the DHS is deliberately avoiding creating a paper trail that might be used against it should it decide to just go back to doing this the old, illegal way.

And that probably explains the immediate, contradictory statement that followed the reporting based on assertions made by two unidentified DHS officials.

A spokesperson for Homeland Security told The Independent that there has been “no change in policy.”

“We will continue to arrest illegal aliens at immigration courts following their proceedings in compliance with the law and any applicable court orders,” the person said. “It is commonsense to take them into custody following the completion of their removal proceedings.”

That’s definitely not the same thing as what was expressed by these DHS officials. And the rest of the statement makes it clear federal officers will continue to arrest people who show up for their scheduled immigration hearings. While it does make sense to arrest people who’ve been issued an order of removal, that’s not actually what ICE has been doing. It has been bringing in DOJ lawyers to dismiss pending cases to immediately make people eligible for removal. And — as has been shown in court — ICE officers have been arresting people not currently under orders of removal and then generating arrest warrants after the fact.

So, it’s not a good news/bad news thing going on here. It’s bad news/worse news, with a balance that constantly shifts depending on what mood the administration is in on any given day. Courts haven’t been able to stop ICE from engaging in illegal arrests. And the growing national opposition to Trump’s anti-migrant actions hasn’t made any discernible dent in the administration’s lust for punishing non-white people simply for existing.

Anonymous insiders tell the access journalists at Semafor that Trump FCC boss Brendan Carr is cooking up a “review” of ABC broadcast licenses after Jimmy Kimmel once again made the President sad.

The FCC clearly leaked word of the inquiry to Semafor in the hopes that Semafor would present it as a serious, big boy sort of inquiry. And Semafor was happy to oblige, with a six paragraph story that can’t bother to mention that the Trump administration has serious credibility issues, ABC doesn’t really have many broadcast licenses, and that none of this is legally supportable:

“The Federal Communications Commission is moving toward a review of Disney’s broadcast licenses, according to people familiar with the matter, a maneuver that would up the pressure on the ABC owner as it faces fierce scrutiny from the administration — again — over a late night monologue.”

We’ve mentioned time and time again that most of these national media giants don’t personally own all that many broadcast licenses to review. Those are generally under the domain of local broadcast affiliates, most of which are increasingly being consolidated in the hands of right wing rich men who already gushingly support the administration (see: NexStar, Tegna, Sinclair).

The licenses ABC does have are limited and not up for renewal anytime soon. There’s eight in total, and while the FCC claims they can just accelerate renewal review, that’s not how any of this works. Stripping them away isn’t quick, or easy. It never really happens. Anna Gomez, the FCC’s lone commissioner (because Republicans refuse to seat any more), made it very clear the purported reviews are illegal:

“This is unprecedented, unlawful, and going nowhere. This political stunt ​won’t stick,” Gomez said. “Companies ​should challenge it ⁠head-on. The First Amendment is on their side.”

If you recall, when one activist media reform group suggested pulling a single Philly Fox News affiliate license for lying repeatedly about election conspiracy theories back in 2023, Carr (and the GOP generally) responded with pure revulsion. These folks are not… ideologically consistent. They’re not even logical.

The threat against “ABC’s broadcast licenses” (because a comedian told a joke) is obvious an illegal assault on the First Amendment (something Semafor can’t bother to make clear). But more generally, it’s designed as an ambiguous threat of costly legal headaches and annoyance if ABC executives don’t help the administration silence voices (journalists or comedians) critical of our unpopular president.

Obviously the last time Brendan Carr illegally abused FCC authority to try and censor Kimmel, it didn’t go well for Brendan Carr (something else Semafor doesn’t mention). Given the mass cancellations to their streaming services, Disney’s decision to temporarily suspend Kimmel didn’t go well for them either (something else Semafor doesn’t think is worth mentioning).

Fighting the deep-pocketed Disney corporation on obvious shaky First Amendment grounds is not something Brendan Carr actually wants. What he wants is for pathetic, feckless executives to pre-emptively bend and quiver at his very serious threats as a very serious big man. But as Trump’s power and health wanes, that’s going to happen less and less, putting Brendan Carr in a sad little box.

Carr’s options as a dutiful little authoritarian lapdog are limited, so he’s increasingly trying to pretend he’s got more leverage and legal authority than he actually does. In addition to vague anonymous threats of broadcast license “inquiries,” he’s also recently leaked word he’s “investigating” Kimmel for his political donations, another hollow effort that’s destined to go nowhere.

Ironically Semafor’s toothless coverage of this is precisely the sort of lazy, pseudo-journalistic cack the administration likes. Fluff that normalizes, elevates, and validates the empty rants and illegal, incoherent acts of unpopular and lame autocrats, but can’t be bothered to mention to readers that the king is not wearing any pants.

We discussed RFK Jr.’s recent appearance before Congress, where he bravely declared that the current measles outbreak in America has absolutely nothing to do with him, despite that definitely not being true. But, unsurprisingly, that wasn’t the only craziness that Kennedy put on display in the hearing.

The Secretary of HHS doesn’t believe in the foundational theory that powers modern medicine.

Read that again. It’s an insane sentence, the sort that should be fiction. What we’re talking about here is the germ theory of disease, which is the accepted science when it comes to how many diseases infect and spread through pathogens. We mentioned in a post last year, which was chiefly about how Kennedy decided to take his grandkids swimming in a creek filled with poop, that he had also written in a 2021 book that he doesn’t believe in germ theory, and instead believes in what he incorrectly labels “miasma theory”.

It’s one thing to write something in a book as we were mired in a global pandemic. But Kennedy both admitted that he doesn’t believe in germ theory, and defended that belief, before Congress.

In the hearing on Wednesday, Sanders called attention to Kennedy’s denial of germ theory while raising one of Kennedy’s shaky arguments for debunking. In opening statements, Sanders warned Kennedy that he wanted to question the “things that you have written which call in doubt the very existence of the germ theory.”

Sanders pointed out a 2024 study led by the World Health Organization and published in The Lancet that found that since 1974, vaccines had saved an estimated 154 million lives, including 146 million children under the age of 5—or, as WHO put it, vaccines saved the equivalent of six lives every minute of every year over the past 50 years.

“My question is a simple one,” Sanders said, “do you still believe that one of the central tenets of the germ theory, that vaccines sharply reduce infant mortality, is quote-unquote simply untrue?”

Kennedy first did what he always does: try to tell you that the experts and studies have no idea what they’re talking about, or are hopelessly corrupted tools of industry. He does this so often that you can set your watch by it. If a study agrees with him, it’s a good study. If it doesn’t, it’s bad. He’s more like Trump than any of us realized.

Then he launched into his own justification and offered up a 2000 study that he claimed demonstrated that it was improved nutrition and sanitation that reduced childhood deaths this century, and explicitly not medicines like vaccines. Unfortunately for Kennedy, Bill Cassidy piped up with a, oh, let’s call it a minor correction.

The study by Guyer notes that sanitation, among other public health strategies introduced in the first half of the 20th century, drove major declines in mortality. But, as Cassidy noted during the hearing, it’s not all that the study found. Cassidy looked up the studies Kennedy raised and read through them during the hearing.

The Guyer study highlighted that vaccination did not become widely used until after the middle of the century, thus it cannot account for mortality declines prior to that. But it concluded, as Cassidy read out loud at the hearing:

The reductions in vaccine-preventable diseases, however, are impressive. In the early 1920s, diphtheria accounted for about 175,000 cases annually and pertussis for nearly 150,000 cases; measles accounted for about half a million annual cases before the introduction of vaccine in the 1960s. Deaths from these diseases have been virtually eliminated, as have deaths from Haemophilus influenzae, tetanus, and poliomyelitis.

Kennedy tried again, with another study, but Cassidy pointed out that it had the same issue as Kennedy’s first: it measured data from the beginning of the century to the early 1970s. Many of the vaccines Kennedy rails against had barely been out during the period the study analyzed, or in many cases hadn’t come out at all. Speaking specifically to the measles vaccine, released in 1963, Cassidy said:

“There’s 3.5 million cases of measles per year before the vaccine came along and about 550 deaths, and then the vaccine took those to less than 100 [cases] and like zero deaths,” Cassidy said. “So a tremendous impact of the vaccination.”

The problem with Cassidy is that he’s acting like he’s trying to convince Kennedy to change his mind on this. He’s not going to. Not ever. He’s made that clear.

So impeach him or convince Trump to make Kennedy his next cabinet firing. That’s all that’s left to do. Because we certainly cannot continue having someone run HHS who doesn’t believe in the very baseline theory for medicine.

There’s still a meaningful effort afoot to implement statewide “right to repair” laws that try to make it cheaper, easier, and environmentally friendlier for you to repair the technology you own. All fifty states have at least flirted with the idea, though only Massachusetts, New York, Texas, Minnesota, Colorado, California, Oregon, and Washington have actually passed laws.

Alaska could be up next. Two versions of a new right to repair law are winding their way through the Alaska state House and Senate. The bills would amend the Alaska Unfair Trade Practices and Consumer Protection Act, requiring tech hardware manufacturers to make parts, tools or software needed for repairs available to independent service providers and consumers.

As is always the case, the proposal has broad, bipartisan support among the actual public:

“In a lot of ways, this is a deeply conservative bill in the sense that for most of the 20th century, you could fix the stuff you bought, and the parts would be available, because it was another revenue stream for the businesses,” said Anchorage Democratic Sen. Forrest Dunbar, the sponsor of the Senate bill.”

As is also always the case, hardware vendors from a variety of sectors (agricultural, medical, tech, consumer hardware) are lobbying against Alaska’s proposal, falsely claiming that easier, more affordable repairs constitute a privacy and security threat to the public.

TechNet (a lobbying coalition that includes Dell, Apple, Amazon, Google, Nvidia, and Verizon), for example, is trying to convince the Alaska state legislature that everything is working fine currently, and that fixing anything would make consumers less safe. Apparently because truly independent repair professionals are too incompetent if they don’t have big corporate oversight:

“TechNet wrote that the bill would erode the current system where manufacturers work with authorized repair service providers, and that these agreements “ensure that technicians have the appropriate training, access to safe repair procedures, and the qualifications necessary to protect both the device and the consumer.”

TechNet is also trying to claim that the Alaska bill is “misaligned with language of right-to-repair bills from other states” such as New York. Granted they would say that, given that after New York passed its bill, tech lobbyists convinced NY Governor Kathy Hochul to water that states’s bill down to the point of uselessness.

The concern now is that lobbyists successfully manage to water the Alaska bill down so badly that it ultimately becomes similarly useless.

Something that’s broadly not mentioned in coverage of right to repair: while eight states have passed right to repair laws in recent years, not one of those states has actually managed to actively enforce it, despite no shortage of bad behavior by companies looking to secure repair monopolies. That’s something that needs to change if the movement is to have any serious impact.