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You may recall that after he had won the 2024 Presidential election, the sorest winner in the history of sore winners, Donald Trump sued retiring pollster Ann Selzer and the Des Moines Register for… having reported the — admittedly surprising and, in retrospect, wildly off — poll results suggesting that Kamala Harris actually had a chance to win over Donald Trump in Iowa. As we pointed out at the time, this was utter nonsense for multiple fairly obvious reasons. Poll data isn’t defamatory. It’s just the result of a poll. Also, what fucking damages could he possibly argue, given that he won?

Anyway, an Iowa state judge has now dismissed the case, while calling out what kind of chilling effects allowing it to proceed would have had on speech. The ruling is pretty thorough and fairly obvious, even if it sucks that Selzer had to deal with it for the past two years.

This case sets a President, a member of Congress, and a former state senator against a pollster and a newspaper, and it arises out of an election. A case of that kind invites the reader to look for a political result. The Court’s role is narrower. It is to sit as an impartial arbiter, to apply the law without passion or prejudice, and to rule without regard to the politics of the day. As such, the only question before the Court is whether the Petition states a claim the law recognizes. At its core, the Plaintiffs’ Petition seeks to stretch both Iowa statutory and common law beyond their current bounds, turning speech that enjoys the highest category of First Amendment protection into a liability. After considering the parties’ arguments, the Court must conclude that the protection is too great and the reach is too far. The case must therefore be dismissed.

We had previously covered some of the extremely shady procedural maneuvers that Trump’s lawyers had made in the course of the case, including dropping the federal case and refiling in state court in an attempt to dodge Iowa’s new anti-SLAPP law. But the state case was dead on arrival as well, even as Trump’s lawyers did a ridiculous “there’s no First Amendment implication here at all” shrug:

Plaintiffs’ initial argument is that the First Amendment has no relevance to this case. They say this litigation has nothing to do with a government attempt to chill private speech; no claim involves government suppression; and that Defendants’ argument over the absence of a general government power to punish political falsehoods is beside the point, because the parties on both sides are private. If Plaintiffs were right about this, the rest of this Part would be unnecessary. They are not right.

Under First Amendment principles, the identity of the party seeking the court to sanction speech is irrelevant. What matters is whether state law, applied by a state court’s judgment, will be used to do so. That principle was set in New York Times Co. v. Sullivan, which was itself a private tort action between private parties. In that case, the Supreme Court set the precedent that what a State may not constitutionally accomplish through a criminal statute is likewise prohibited in its civil law, and the prospect of damage awards may inhibit speech more effectively than the threat of prosecution. It makes no difference that a State is acting solely through its judicial branch, because the Constitution asks a court to scrutinize the application of state power.

This point has been applied to tort claims in the decades since, and it is clear that the Free Speech Clause may serve as a defense in state tort suits.

We occasionally hear this kind of nonsense from internet trolls, arguing that “defamation has nothing to do with the First Amendment, because it’s between two private parties, not the government.” But as the judge explains here, that’s not how any of it works. What matters is that the state, through its courts, is being asked to punish speech. That’s why NYT v. Sullivan (itself a lawsuit between private parties) made it clear that the First Amendment is quite relevant to any defamation claim.

In response to this case law, the Plaintiffs cite no authority for the contrary proposition, and the Court is aware of none. The rules are simple. Just because a private party rather than a prosecutor seeks the sanction does not remove the constitutional protection.

The First Amendment clearly applies in this case.

The fact that the polls turned out to be “false” also doesn’t change things, because the Supreme Court has made it clear that the vast majority of false speech is still protected by the First Amendment, with only a few narrow categories of false speech (like defamation and fraud) carved out. And, you should want it that way, because otherwise, any time anyone is aggrieved about someone’s speech, they could take them to court and spend years and millions of dollars fighting over truth vs. falsity. It would be a recipe for non-stop SLAPP suits.

In particular, this case turns on the principle that falsity alone does not create a category of unprotected speech. The Supreme Court has never recognized that false statements by themselves are not entitled to First Amendment protection, and it refused to do so when squarely presented with the opportunity. The Eighth Circuit held that even knowingly false campaign speech is not excluded from the Amendment’s protection.

Plaintiffs attempt to rebut this authority on falsity with a listing of statements from decisions in other contexts as support for the proposition that there is no constitutional value in false statements of fact, and that false speech is not protected for its sake.

This line of argument is unpersuasive because the Supreme Court has considered those very statements and explained that they do not support the conclusion that false statements are, generally, outside the Constitution’s protection. The passages Plaintiffs cite were written in the context of an area of speech that is unprotected for its own sake, and they do not stand for the general proposition that falsity is unprotected.

But, even more importantly, a poll isn’t the kind of thing that can be “true” or “false” in the first place. It’s an estimate, a snapshot of what a sample of people said at one moment, with a margin of error, about an event that hasn’t happened yet. It’s no more “false” when the result differs than a weather forecast is “false” when it doesn’t rain, which the judge notes:

A poll is simply an estimate. A poll reports responses from a sample of voters and includes a reported margin of error. It is based on a known methodology, and concerns an event that has not yet happened. Things of that nature are not the sort of things that can be said to be true or false in the manner required by the fraud exception. Opinion polls of random samples of voters are snapshots with margins of error, and campaigns are dynamic. A statement of conjecture about a future state of affairs is not provably false, even when the speaker is alleged to have known better. Ratings, forecasts, and predictions that reflect a subjective weighing of objective data points are not sufficiently factual to be susceptible to proof, and predicting uncertain future events is not an exact science for which a publisher may be held to account.

Honestly, this ruling by Judge Scott J. Beattie does a really excellent job cleanly and clearly explaining basic First Amendment principles. Too often in First Amendment cases, the judges get caught up in the details and legalese, which often makes it harder for lay people to understand the basic concepts. But Judge Beattie’s writing is very direct and on point regarding how the First Amendment actually works.

Is there actual malice? Of course not. Actual malice means they published it knowing it was false, or with reckless disregard for whether it was, meaning they actually had serious doubts about its truth. Trump, as per usual, presented zero evidence of actual malice:

Plaintiffs are public figures, and the Iowa Poll dealt with a matter of public concern. The privilege which bars defamation actions thus applies to Plaintiffs’ claims, and Plaintiffs must allege that Defendants published the poll knowing it to be false, or with reckless disregard as to the truth of the poll.91 Reckless disregard is not whether a reasonably prudent publisher would investigate further; it must be supported by facts that a publisher actually had serious doubts as to the truth of the publication.

The Petition does not contain such facts of actual malice. Although Plaintiffs have asserted that manipulation and falsification occurred in their pleadings and at oral argument, the Petition alleges no facts that support the notion that samples were manipulated, responses falsified, or the questionnaire slanted. What it alleges is that the result proved badly wrong and that Defendants harbored political animosity toward the Plaintiffs. Neither suggests the required state of mind. A published estimate that proves to be inaccurate is evidence only of error; ill will directed at the subject of a publication is not evidence of doubt as to its truth.

Would granting the injunction Trump sought against future “false polls” be an unconstitutional prior restraint? Certainly:

Plaintiffs seek an injunction against Defendants’ further publication of any false polls. The threat of prior restraint on publication is the gravest and least attractive encroachment on the First Amendment and is subject to a strong presumption of unconstitutionality. The scope of the relief sought would require this Court to determine the accuracy of unmeasured polls and to prevent the publication of speech yet to be made. Other courts asked to provide such relief have refused, and this Court would refuse.

Would applying the Iowa Consumer Fraud Act to the publishing of this poll violate the First Amendment under “strict scrutiny” (the standard required for the suppression of speech in a context like this)? Abso-fucking-lutely:

The Press Defendants argue, as to Count I alone, that Plaintiffs’ construction of the Iowa Consumer Fraud Act could not survive strict scrutiny. The Court agrees. The Plaintiffs’ construction of the Act would have subjected a pollster to liability for publishing an estimate that turned out to be inaccurate. Such a construction would constitute content-based regulation of core political speech, and the State would have the nearly impossible burden of justifying it. Although protection of the integrity of elections is a compelling interest properly considered in the abstract, the State must demonstrate that the particular restriction it seeks to impose is narrowly tailored to advance that interest. The Eighth Circuit has held that punishing false political speech is not permissible because the remedy for false speech is true speech. Plaintiffs’ construction would not meet that narrowly tailored test.

Basically, no matter how you look at it, no matter which standard you use, this whole mess of a censorial lawsuit was clearly designed to chill speech. As the judge points out, there’s effectively zero limit to Trump’s argument here:

The Court put the consequence of the Plaintiffs’ theory to their counsel directly. Asked whether the theory would expose meteorologists and sports commentators to liability to anyone who acted on a forecast or a prediction, counsel answered that it would not, “as proven by the fact that you don’t see those cases being brought.” The absence of such suits is not a limiting principle. It is the reason a limiting principle has not yet been needed.

Basically, the reason we don’t see such cases is because they’re obviously bullshit. And yet Trump, then the president-elect, brought his anyway, and kept pushing it as the sitting president. Solely because he wanted vengeance and pain brought on someone who issued a poll (speech) he didn’t like.

Unfortunately, though, the court refused to issue sanctions on Trump and his lawyers for bringing such a bullshit lawsuit in the first place, saying that even though Trump asked the court to extend existing law into new realms, it will give him the benefit of the doubt that the request was done in good faith. The court did leave the door open, though: a separate motion arguing the case was brought “for an improper purpose” might fare better. That question just isn’t ripe yet.

We’ve covered dozens upon dozens upon dozens of examples of Donald Trump’s anti-free speech actions over the years. It’s nice to see a court clearly call bullshit on this one.

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Guantanamo Bay has always been shorthand for disappearing people. It’s a place where people cease to exist, along with any rights they may have been afforded if they’d been imprisoned inside the United States. Its name is synonymous with torture and indefinite detention. And the excuse has always been the same: it’s impossible to secure the nation without becoming just like our enemies.

What’s happening now is far more terrifying. It’s no longer just a dumping ground for suspected terrorists. As this report from Mother Jones explains, it’s now just another place to dump deportees in hopes of denying them anything resembling due process. This isn’t exactly new, as Amanda Moore’s report points out:

For years, ICE has operated its own, separate facility at Guantanamo called the Migrant Operations Center, which, according to a 2024 report by the International Refugee Assistance Project, was used to confine refugees apprehended at sea in “prison-like conditions.”

What is new is Trump’s actions during his second term. He ordered the Pentagon to “expand” its detention operations to handle an expected influx of migrants, merging ICE’s operations with the military’s Gitmo detention center.

What’s also new is who the administration has decided to send to this migrant-focused joint Gitmo operation. It’s exactly the sort of people you’d expect Trump to want to be treated the worst: Somalis. Trump has frequently referred to Somalia as a “shithole country.” And the large Somali population in Minneapolis, Minnesota became the instant focus of Trump’s anti-blue state surge efforts in that state.

Late last month, ICE put 12 Somali men on a plane and told them they were being deported to Somalia, according to interviews with community leaders, friends, and family members who are in touch with the detainees. Instead, they arrived at the notorious US military base in Cuba, where seven or eight of them remain. Since then, the men have said, they have been subjected to frigid temperatures, and they are shackled at all times.

It hasn’t been a complete disappearance of these Somali men, although I imagine the administration would have preferred none of them were ever heard from again. The detainees have been given some phone call privileges, which is likely the only reason anyone outside of the administration is aware that this is happening.

Given the history of the Gitmo facility, you might assume the people being sent there now are somehow more dangerous than the thousands of migrants with no criminal records being arrested by ICE officers. Certainly, the DHS would prefer you to believe this:

In an email, a DHS spokesperson claimed that the Somalis flown to Guantanamo in late August “included some of the worst of the worst, with criminal histories including aggravated assaults, weapons offenses, robbery, multiple larcenies, police obstruction, possession of burglary tools, receiving stolen property, trespassing, unauthorized use of a vehicle, multiple drug charges, and DUIs.”

Ah, the “worst of the worst.” Of course. That old thing. And the statement goes on to claim everyone sent to Gitmo after being told they were being deported to their homeland was given “due process” and were subject to final orders of removal.

But the pretense doesn’t hold up because it never does. While Mother Jones can’t speak for all of the people sent to Gitmo, it’s safe to believe this has more to do with them being Somali than it has to do with them being criminals so dangerous they needed to be removed from the country (but still held in US territory) until… whatever ICE decides to do with them next.

It’s far more likely that none of these people have ever been accused, much less convicted, of committing a violent crime.

At least some of the detainees have told people they have spoken to that they are not criminals and have not been charged with crimes. MPR reported last week that one of the men, Adam Abdullah, had received two parking tickets but had no criminal record. Several of the men at Guantanamo were applying for asylum and had work authorization…

That’s just what’s been discovered by other reporting. Moore’s investigative work for Mother Jones did not come across any criminal records for two other Gitmo detainees who arrived on the same supposed deportation flight. Assuming the worst, at best maybe half of the seven or eight remaining detainees had some sort of criminal record. This could, of course, all be cleared up by the DHS releasing criminal records pertaining to the Somalis sent to Gitmo. But it hasn’t, which is extremely telling, since ICE and DHS officials are always posting stuff to Facebook and X about arrestees if they can find any dirt at all on someone now in ICE custody.

The Trump administration still has a couple of years to go before it runs out of Trump. This is a leading indicator, rather than the belated accounting of a temporary effort the administration no longer considers viable. The faster the moves and the further the distance, the less likely it is that detainees can make their case in court. This robs them of jurisdiction and the distance makes it all but impossible to make personal appearances in court. It also allows the government to pretend the burdens of returning detainees to the US outweighs whatever harms courts declare to be supportive of ongoing litigation.

The administration can’t win without cheating. A nearly unanimous majority of court decisions have sided with migrants and their due process rights. In response to the legal reality, we should expect the administration to do more of this: the “disappearance” of migrants to off-shore detention centers before their cases can be heard.

After burning $80 billion on the failed metaverse pivot — and billions more on desperate “me too” offerings in the AI space — Meta is looking to leverage its massive ad dominance to colonize the agentic AI (or personal assistant) market. So they recently introduced Muse, an AI agent represented by cutesy and personalized avatars, capable of doing semi-complex tasks like booking appointments and shopping.

The capabilities and novelty of the agent, as usual, tend to overshadow the potential privacy threats of giving unethical companies access to even more personal accounts and data. And right on cue, security researchers found a massive zero-day flaw in Muse that allowed any app or terminal command to gain access to the authentication token linking users to their Muse account. 

That not only created potential access to the Muse account (and everything it had access to in turn), it allowed for user surveillance that wasn’t transparent to the Muse user. Great stuff!

Meta marketing had spent a lot of time claiming they’d kept security and privacy at the forefront of Muse’s design so it was a bit of an embarrassing launch. And it certainly didn’t assuage fears about giving big companies like Meta access to even more personal information and login data:

“To me, the bar is infinitely higher in terms of the security of these apps. They don’t have to be perfect, but when you take a look at Muse, it’s like they didn’t, in my opinion, think about security, which is really worrisome,” Wardle said. “At the very least, they should be thinking about security from the very start, and they are just not.”

Meta’s adventure in mass-appeal agentic AI also ran into a roadblock when Amazon announced it was banning the agent from shopping on Amazon. Amazon’s announcement, made about 12-hours before Wardle discovered the vulnerability, claimed Muse was an “unauthorized AI agent” that “violates Amazon’s Conditions of Use:”

“We think it’s fairly straightforward that third-party applications that offer to make purchases on behalf of customers from other businesses should operate openly and respect service provider decisions about whether or not to participate. This helps ensure a safe, secure, and reliable customer experience, and it is how others operate including food delivery apps and the restaurants they take orders for, delivery services apps and the stores they shop from, and online travel agencies and the airlines they book tickets with for customers. Agentic third-party applications such as Muse have the same obligations, and we’ve requested that Meta remove Amazon from the experience.”

Amazon had already sued Perplexity over its comet browser (though unsuccessfully so far), and taken steps to block shopping agents from both Google and OpenAI. You can see how this could steadily devolve into an annoying walled-garden arms race that erodes the functionality of everybody’s agents.

There’s obviously interesting potential in agentic AI (aka software), but like so many other arenas, our failure to enforce antitrust law, and obsession with lobotomizing our regulators, means the market is likely to be dominated by the biggest companies. Companies that already spent the last decade making it clear they have very little ethics. And are keen to anti-competitively ratfuck their way to market domination.

Which is to say that Amazon’s blockade of Muse is likely only the beginning. In that sense, the future is going to, in a lot of ways, look very much like the past. It’s also another reason why you’d like to see the sector disrupted by cheaper, on-device, open source, open weighted AI alternatives where ideally the end user gets more transparency, better potential security, and more control.

Instead, I suspect 2027 is going to be heavily dominated by companies like Meta (and Amazon) scaring the government about China, resulting in terrible, protectionist, new AI legislation ghost written by its own lawyers.

What if all this time, we have completely misunderstood RFK Jr.’s obsession with keeping children from being vaccinated? What if the notion that he was a true anti-vaxxer, or was ignorant and confused on how this whole science things works, was completely wrong? What if he just hates children, particularly black and brown children, and wants less of them to exist?

It’s a weird premise, I know. But then you learn that Kennedy has exploded the budget for his own personal security to three-times the historical amount and he paid for it by grabbing funds meant for the Office of Minority Health.

According to a Wall Street Journal article published on Tuesday, the Department of Health and Human Services told congressional appropriators earlier this year that it was shifting about $12 million from its Office of Minority Health to help pay for Kennedy’s protection. The Journal cited people familiar with the matter and a document it reviewed.

According to The Journal’s sources, Kennedy’s security costs rose from roughly $10 million in fiscal 2025 to $17 million in fiscal 2026. Those sources said protection for previous HHS secretaries ran about $5 million a year.

The Office of Minority Health was created under Reagan when people bothered to notice that black infants in America had a survival rate well below that of their white counterparts. It has an annual budget of $74 million, meaning that Kennedy yoinked away nearly a quarter of its funding. You may also have noticed that Kennedy’s security costs rose $7 million, yet he took $12 million from OMH. Why? According to HHS, the answer is because HHS has been hit by large funding cuts. Cuts that this administration, and Kennedy, put in place.

So, to summarize, Kennedy has a security budget for himself that is over 3 times the historical budget for his position, he took more money than that security actually costs from a tiny agency in government meant to protect the health of black and brown people, mostly babies, and HHS essentially blamed all of this on itself. Black children must die so that Kennedy can feel more safe, apparently.

Oh, and it seems Kennedy may not have even needed that money in the first place.

The sources also told The Journal that the secretary’s office had a large pool of discretionary money it could have used instead. 

Now, I’m not saying that Kennedy definitely wants black and brown children to die at a higher rate. I’m saying he clearly doesn’t care that they may die at a higher rate, so long as he feels more safe. After all, sociopaths don’t really want others to die or be in pain; they just don’t care if that happens so long as they benefit.

Hopefully the rest of us not dealing with that affliction can agree that this is very gross.

In what was a severely belated response to acts of violence by immigration enforcement officers, “Border Czar” (who seems far more interested in raiding inland cities than patrolling the border) Tom Homan assured the nation that all ICE officers would soon be wearing body cameras. The only holdup, he said, was a lack of funding.

It was almost hilarious, or would have been if it hadn’t been uttered by one of the least funny people on the planet. Several months prior, Trump’s budget bill had made ICE the most well-funded federal law enforcement agency. And yet here was the “Czar” pretending it needed to scrape together some cash before it could make this purchase.

Nevertheless, Tom Homan claimed all ICE officers would be wearing cameras by the end of August. Then he said it would be sometime in September before the agency could engage in full roll-out. Then he said vague stuff about training which strongly suggested we’d be lucky to see our tax dollars spent on these quasi-accountability devices.

Well before the roll-out that seems to always be in progress, ICE installed a footage release policy that strongly favored withholding footage, especially in the cases where the public’s interest would be highest… like, you know, the murder of US citizens and residents by immigration officers.

The clock continues to move forward. And ICE continues to move backwards. Homan seems a bit recused at the moment, so DHS Secretary Markwayne Mullin is now delivering the dithering, now that ICE has blown past one deadline and seems intent on blowing past the next one.

Homeland Security Secretary Markwayne Mullin’s update this week on when all Immigration and Customs Enforcement officers will be equipped with body cameras left many inside the agency confused.

“By the end of September, I’m pretty sure we will be there,” Mullin told reporters in New York on Tuesday.

Yet every ICE field office in the country has had enough body cameras for all of its employees tasked with making arrests since the end of August, according to a senior Trump administration official and a Department of Homeland Security official with knowledge of ICE’s body camera policy. ICE officers are being trained on how to use them, they said.

So, what’s the hold up? Well, somehow ICE is trying to spend money on microphones for the cameras, despite the fact that cameras already purchased from Axon already come equipped with mics. For reasons Mullin will never fully explain, the agency is securing a second contract for the sole purpose of adding a second-party mic to a first-party product that already has one.

Mullin further fueled confusion within DHS when he added that he’s in talks with Motorola about the company providing microphones for the body cameras.

What is even going on here? First impressions suggest some sort of graft that quid pro quos Motorola for, I don’t know, increasing the funds in Trump’s definitely-not-blind trusts. Or it’s just a thing the DHS wants to do because it will delay the deployment of cameras for just a bit longer, which buys a bit more time for officers who want to kill, maim, or run over people while on the clock.

No one really wants to explain what’s happening here. Mullin remains extremely vague with his comments and the two contractors involved have refused to comment at all on this turn of events. What is known is that ICE already agreed to pay $13 million to Axon to outfit every arresting officer with a camera. As for any bullshit about “training” delays, most ICE officers are already familiar with Axon’s products since Axon has been providing cameras to ICE since Biden was still in office.

It’s probably a combination of all of these things. ICE officers aren’t really thrilled to be wearing cameras. Mullin would probably prefer this whole camera thing never happens. And if you’re wondering about Motorola’s sudden appearance on the scene, well…

Records show Motorola has spent over $1 million in lobbying efforts this year aimed in part at DHS and other appropriations bills.

Adding this all up makes it clear we won’t be seeing ICE officers wearing cameras any time soon. The fuckery going on here indicates September will come and go before we see the promised roll-out. And the more time that passes, the less likely it is that ICE will ever live up to half-assed promises it made to its oversight and the general public that keeps it funded.

You may have seen the headlines about a Microsoft employee calling AI scraping “the largest theft of labor in human history.” It made the rounds on social media, with plenty of people insisting it was a slam dunk admission of criminality. I think I saw this gif applied to it multiple times:

It certainly doesn’t look great. But does it actually matter? An exec’s statement doesn’t change the underlying facts: fair use isn’t copyright infringement, and even when something is infringement, it still isn’t theft. That someone colloquially calls it theft isn’t supposed to change the legal analysis, no matter how emotionally satisfying it feels.

For basically all of Techdirt’s history, we’ve explained that copyright infringement is not “theft,” and that using that term is misleading in dangerous ways. It’s been a few years since we last mentioned it, but the Supreme Court’s ruling in Dowling vs. the US has always been the clearest legal statement on this point.

Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple “goods, wares, [or] merchandise,” interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright, nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.

That’s not to say that infringement is necessarily okay. But it’s a distinct issue from “theft.”

For years, most of the internet seemed to agree. But the arrival of generative AI has triggered a remarkable amount of backsliding, as people rush to (incorrectly) label training as “theft.” That’s wrong on two levels. First, if it were infringement, it still wouldn’t be “theft.” Theft removes something from someone’s possession. Copyright infringement doesn’t. It makes a copy without a license. Those are not the same things. At all.

But there’s an even bigger issue when it comes to AI training, which is that there’s a fairly strong argument that training is fair use. And at least one judge in one of the (many) cases exploring this issue has agreed. As Judge William Alsup noted:

To summarize the analysis that now follows, the use of the books at issue to train Claude and its precursors was exceedingly transformative and was a fair use under Section 107 of the Copyright Act. And, the digitization of the books purchased in print form by Anthropic was also a fair use but not for the same reason as applies to the training copies. Instead, it was a fair use because all Anthropic did was replace the print copies it had purchased for its central library with more convenient space-saving and searchable digital copies for its central library — without adding new copies, creating new works, or redistributing existing copies.

And here, too, the law is clear. Fair use is not a “defense” to infringement. Rather, a fair use “is not an infringement of copyright” at all. That doesn’t mean that there can’t be some aspects that are infringing and are punishable: indeed, in that very case where Alsup determined that Anthropic’s training was fair use, he also dinged them for widespread mass infringement for creating and storing “pirate libraries” of content without a license.

The point is that Alsup actually looked at the specifics of each use. An AI data scientist firing off an emotional internal message is not legal analysis, nor is it someone who understands the elements of either copyright infringement or fair use, let alone “theft” in the legal sense.

Of course, for decades now, the large copyright interests have polluted the discourse on this by deliberately equating infringement to theft (and simultaneously minimizing, dismissing, or demonizing fair use). Hollywood and others (including Microsoft!) spent years poisoning the language around copyright until calling infringement “theft” became the default, and “fair use” got treated as a grudging loophole or limited defense, rather than the public’s actual right.

Bill Patry, who knows more about the modern history of copyright law than maybe anyone, wrote a wonderful book about how the large copyright players used the language of “theft” and “piracy” to influence policy discussions.

Given all that as background, it’s somewhat hilarious that people are acting like it’s a huge deal that a Microsoft employee called AI training “theft.” This came out in a recently unredacted filing from the NY Times in its case against OpenAI.

This case is about, as Microsoft’s Director of Applied Science put it, “an astonishing theft of unprecedented proportions”; SF1437, perhaps the “largest theft of labor in human history.” SF1652. Defendants repeatedly copied millions of Plaintiffs’ copyrighted articles in their entirety without permission to produce substitutive commercial AI products.

The NY Times is trying to win a copyright lawsuit, so of course it has every interest in portraying these quotes as damning. The rest of the media doesn’t have to accept that framing — especially when it’s not how copyright law actually works. Just because a random employee of one company colloquially calls it “theft” doesn’t magically make it so, either legally or morally.

And, yes, that same filing goes after the fair use argument by quoting an OpenAI employee calling AI an “existential threat” to publishers, then insisting that this “undermines” any fair use claim. Notably, the filing quotes so little of the surrounding context that it’s not even clear what the person was referring to, but just because one employee makes such a statement doesn’t make fair use disappear. That’s not how fair use is determined.

There’s also a more basic problem with the “existential threat” argument. Lots of things can be “existential threats” to companies that refuse to adapt and change. That doesn’t make their competitors illegal. It’s just how competition itself works. This is also true of the “doom loop” quote from the filing:

A Microsoft document recognizes that nobody wins that contest: “Our AI content strategy has started a ‘doom loop’ that will hurt the performance of our models and the entire web at the same time: It is highly unusual that an end-product threatens the economic foundations of its essential suppliers, but that is the situation we have created for our LLM business with respect to its ‘content supply chain.’”

Read the full filing, though, and the Times’ lawyers seem to be playing a neat bit of sleight of hand here, conflating statements about search results that give users the facts they were looking for (rather than driving them to a separate website) with the claim that chatbot output is a substitute for news. Those are two separate things. Take the Satya Nadella testimony the filing leans on. He’s talking about chatbots answering questions a user has, not about anyone going to ChatGPT and asking it to replace the NY Times:

Microsoft’s CEO Satya Nadella agreed under oath that conversing with chatbots “has substituted … giving you the information right there on the website on the AI platform versus needing to go to the underlying source.”

And, in the end, what matters most is what users actually want, because that’s what they’re going to do regardless. The NY Times might not like that someone looking for a quick answer doesn’t want to read a long article, but that’s not the fault of an AI system. It’s how people work: the AI tools (or the search results) may simply be meeting that reader’s needs in that moment better than a long-form article does.

As an entity engaged in long-form reporting ourselves, that certainly represents a challenge for us, but we try to respond to that by providing something that can’t be replaced merely by a straight answer to a question. Instead, we focus on providing more value that makes it worthwhile to read our full commentary.

Why does the NY Times think it can’t do that? Does it really value what it does so little that it can’t compete with a word generator?

The courts still have a long way to go on the copyright questions around training, but the rush to wave a few cherry-picked quotes from the NY Times filing around as “evidence” that AI training broke the law is getting silly.

Fair use isn’t infringement. And if it is infringement, it’s not “theft.” And even if a use competes with you, competition doesn’t make it illegal. Indeed, the “effect of the use upon the potential market” is just one of four factors, and it isn’t supposed to let ordinary competition swallow the entire fair use analysis. That these employees (who are not, themselves, copyright experts) said random things does not change the actual underlying analysis of fair use. Or, at least, it shouldn’t.

This story was originally published by ProPublica and the Texas Tribune. Republished under a CC BY-NC-ND 3.0 license.

In the final weeks of 2019, a top fundraiser for Sen. Susan Collins walked into a perilous meeting at a Corner Bakery in Washington, D.C.

For the first time in her two-decade Senate career, the Republican lawmaker from Maine was in danger of losing her seat. President Donald Trump’s dismal approval ratings were dragging her down in the polls, and she was falling behind her likely 2020 Democratic challenger in fundraising.

Scott Reed, head of the Collins super PAC, was on a mission to close that gap. Reed was meeting that day with three executives from a Hawaiian defense contractor, Navatek. A year earlier, Collins had helped their company land a multimillion-dollar Navy research contract in Maine. Now, seated at a coffee shop not far from the U.S. Capitol, Reed asked them for a $500,000 donation.

Government contractors are banned from making political contributions. More consequentially, for the company to offer donations to Collins in exchange for an official action, or for Collins to accept, would constitute criminal bribery.

But the company did have such a proposal: Navatek was hungry for more government contracts in Maine. If they cut a big check, the CEO told Reed, Navatek wanted Collins to guarantee tens of millions of dollars in additional federal funding.

To skirt campaign finance laws and conceal the source of the funds, Navatek planned to funnel the donation through a shell company. The CEO wanted assurance that Collins would know where the money came from. Reed confirmed that she would, the executive said — and that Navatek would get its government contracts.

After the Corner Bakery meeting, Navatek’s CEO, Martin Kao, sent an initial $150,000 to the Collins super PAC using the shell company. Two months later, he told Navatek executives that Collins committed to getting the company $32 million in naval contracts, according to an internal company email reviewed by ProPublica.

Three years later, Kao holed up in a conference room to recount the Corner Bakery meeting to a group of four FBI agents and federal prosecutors. The FBI had seen through his shell company ruse, and in 2022 a grand jury indicted him for making illegal campaign contributions. No one working for Collins was charged.

Facing years in prison, Kao hoped to do less time by revealing the entire scheme.

What he told them has never before become public. The Corner Bakery meeting, he asserted, was just one episode in a sprawling pay-to-play operation that embroiled some of the most powerful figures in Congress.

Over three days at the U.S. attorney’s office in Honolulu, Kao laid out in devastating detail how his operation worked. He gave agents a 50-page document naming dozens of lobbyists, congressional staffers and members of Congress who he said helped him trade cash for contracts. Kao and his close associates had donated nearly $900,000 to dozens of politicians, allowing Navatek to establish operations in half a dozen states with over $40 million a year in government funding.

Most damningly, Kao told FBI agents and prosecutors, the company’s work for the government was of no real value. Navatek’s research under his stewardship never resulted in products the military wanted to buy, ProPublica found.

Kao’s tell-all interviews with the FBI lasted into late 2024. His confessions opened up an entirely new phase of the investigation. Agents sifted through hundreds of thousands of records seized during Kao’s arrest and found that many were consistent with his account of widespread influence peddling.

Kao had credibility issues. He was now a felon trying to avoid a lengthy prison sentence. And there were other challenges. Building a corruption case against elected officials requires extraordinary proof of a quid pro quo arrangement, in part because the Supreme Court has narrowed what counts as bribery.

Even so, by the end of 2024, the agents had enough evidence to pursue a sweeping bribery probe that could ensnare top lawmakers of both political parties. They asked their supervisors to approve a new investigation and contemplated using undercover operatives to gather more evidence. Although their effort was in its early stages, and it was unclear where it would lead, FBI agents asked Kao extensive questions about his dealings with Collins and her office.

Then Trump returned to the White House. Consumed by a campaign of vengeance, he stacked the Department of Justice with his personal lawyers and demanded a purge of anyone who had ever investigated him.

The specialized FBI and DOJ teams handling public corruption investigations, some of which were involved in Trump-related cases, were eviscerated. One of the agents who had taken Kao’s confession was pushed out as retribution for her role in investigating Trump’s attempt to overturn the 2020 election. Dozens of agents and prosecutors quit amid the department’s destruction, including the career attorney assigned to Kao’s case.

Trump’s Justice Department no longer takes on public corruption in any meaningful fashion, former officials said. The investigation sparked by Kao’s revelations is dead. And the government is no longer talking to an informant who had offered a road map to corruption in Congress.

The White House referred ProPublica to the FBI.

FBI spokesperson Ben Williamson said the agency had investigated claims against Collins years ago “and ultimately found nothing implicating Senator Collins or Senator Collins’ campaign. Any suggestion otherwise is totally false.” Williamson said the Trump administration has removed agents only “if they have been found to have acted unethically, undermined the mission, or engaged in weaponization of law enforcement.”

Williamson did not respond to questions about the new investigation launched in 2024 based on Kao’s previously unreported cooperation with the FBI.

ProPublica is revealing the existence of the case for the first time. We reviewed a trove of evidence gathered by the FBI and thousands of pages of legal records, and interviewed dozens of people familiar with Navatek, its Washington operations, and the FBI inquiry to conduct our own investigation. We independently corroborated much of Kao’s account. Whether or not Kao’s dealings with politicians amount to criminal bribery, the Trump Justice Department has little interest in finding out, and his sheer success reveals how easily influence is purchased in Washington today. This is the first in a series of stories drawn from our reporting.

Of all the politicians Navatek courted under Kao’s leadership, Collins was its most important patron. The senator’s office steered government contracts worth millions toward the company while her campaign was pumping Kao and his network for donations, according to emails seen by ProPublica. Sometimes they cut checks within 24 hours of the annual defense spending bill, which funds military contracts, clearing a key Senate hurdle.

Collins’ office did not specifically address questions about the Corner Bakery meeting, the senator’s relationship with Kao and the millions she helped appropriate for Navatek.

Annie Clark, Collins’ deputy chief of staff, told ProPublica in an email that Collins’ office “vigorously” denies allegations of bribery and pay-for-play made by Kao, calling his claims “outlandish.” Collins’ campaign was not part of the discussions between Kao and the super PAC, and her office “fully cooperated” with the FBI investigation, Clark said.

“The fact that the FBI and Biden-led Department of Justice thoroughly examined the Navatek matter demonstrates this,” Clark wrote. “These issues were resolved in 2021 and concluded when the Collins campaign disgorged the illegal contributions that Martin Kao had made without our knowledge.”

Collins is once again fighting to keep her seat, in a race that could determine control of the Senate. On the campaign trail, she spotlights the funding she directs to Maine while leading the appropriations committee, which she calls “the most powerful committee in the Senate.”

She demonstrated that power with Navatek. After the budgets became law, Collins’ office pushed the Navy to award specific contracts to Navatek, emails seen by ProPublica show, even though awards are supposed to be competitive.

“I spoke with Sen. Collins office regarding the $8M,” a naval official wrote in an email on Feb. 6, 2019. “The interested company is Navatek.”

In a meeting with Collins and two campaign officials, Kao said, the officials told him the senator expected his ongoing support. Collins told him: “You’ve seen me deliver,” Kao said.

Reed knew Kao was behind the $150,000 anonymous donation, emails showed, because Kao told Reed he planned to donate through a shell company. “Very smart,” Reed replied in an email viewed by ProPublica.

Reed did not respond to detailed questions about the Corner Bakery meeting, the $150,000 donation and Kao’s allegations. “I understand Martin Kao is now sitting in federal prison,” Reed wrote in a brief email. “I never had any communications with Senator Collins [or] her staff about Martin Kao and/or Navatek.”

But an email seen by ProPublica suggests that someone must have relayed the news of Kao’s donation to Collins, just like Reed promised to do in Kao’s recounting of the Corner Bakery meeting.

Seven days after the super PAC cashed the check from Kao’s shell company, one of Reed’s subordinates emailed a Navatek lobbyist asking for Kao’s phone number: “Senator Collins would like to call Martin to thank him.”

The Navatek Method

Before Kao’s doomed reign as CEO, Navatek was a sleepy Hawaiian engineering company with a few dozen employees. It was founded in 1978 by Steven Loui, a talented engineer and scion of a powerful Hawaiian shipping family. Navatek was not a profit center but a vehicle for Loui’s passion projects, like an experimental catamaran for navigating Hawaii’s choppy waters.

The company benefited from the largesse of the legendary Hawaii Sen. Daniel Inouye, multiple former Navatek executives and employees said, whose family had been close to the Loui family for generations. Inouye was a master of earmarks, a practice that allowed lawmakers to insert funding for specific companies by name in the federal budget. The self-styled “King of Pork” steered hundreds of millions in federal dollars to Hawaii. Former Navatek employees say he was affectionately referred to as “Uncle Dan.” “Before Inouye took an interest, Congress didn’t even know our companies existed,” a longtime Loui lieutenant wrote in a 1998 op-ed.

In response to ProPublica questions, Loui said that money appropriated by Inouye made up “a minority” of Navatek’s revenue.

Inouye’s death in 2012 made the company’s future uncertain. Not only was Navatek’s direct line to Capitol Hill gone, but Congress was doing away with the abuse-riddled earmark process. Now companies would nominally have to compete on the merits for government contracts.

Kao joined Navatek in 2008 as its chief financial officer. Loui charged him with replacing Navatek’s rainmaker and eventually named Kao CEO. He sold Kao the company in return for a share of the profits.

Kao was an unusual figure among the company’s low-key naval engineers and boat aficionados. He seemed to be aping a Wall Street tycoon, telling employees they could either be “a beast or a bitch,” a former executive said. He drove to work in a Ferrari and abruptly fired subordinates who displeased him — one time, in the middle of the night. “He had very little interest in the technology,” one former employee recalled. “Martin was only interested in dollar signs.”

Kao also exaggerated and lied. He told different people he had stepbrothers whose parents died in a fishing accident or an avalanche, a former employee recalled. He lied to Loui about having law degrees from both the University of California, Los Angeles and New York University. He once told a lobbyist who raised quarter horses that he owned a herd of polo ponies, just to one-up him.

Despite his erratic behavior, former employees agree Kao hit upon an effective way to replace the lost earmarks. If the company could not rely on a benefactor like Inouye, it would develop a stable of them.

Navatek targeted the powerful members who sat on the House and Senate appropriations committees. These members could no longer earmark money for specific military contractors. But they retained the power to budget millions of dollars for equipment or bespoke research and development. Because Pentagon budgets run thousands of pages and are largely prepared in secret, it is easy for appropriators to add a line item intended for a contractor like Navatek without leaving any fingerprints.

Soon, Kao had refined a playbook. Navatek would concoct a research project in partnership with a university in a member’s district or home state, and Kao would make a large initial campaign donation. Working with a team of pricey, well-connected lobbyists, Navatek would get meetings on Capitol Hill to pitch the research to congressional staff. Navatek kept spreadsheets, reviewed by ProPublica, that listed members of Congress as the “specialty” of certain lobbyists.

Separately, Kao later told the FBI, there would be a meeting of just the key players. One engineer, who traveled with Kao to D.C. to explain the technical side of a project, recalled being sent out of the room once the subject of money came up. Sometimes in these smaller meetings, members of Congress directly asked Kao for donations, he told the FBI. In other cases, he said, Navatek’s lobbyists would relay a request from an intermediary for a specific dollar amount.

Kao told the FBI that the lawmakers, lobbyists and Navatek brass understood these donations were bribes and that the payments were essential to the entire scheme. Kao believed he was buying Navatek’s way into the annual defense budget, not winning over members with innovative engineering proposals.

“I’m not red or blue, I’m green,” he would tell congressional staffers, a former Navatek employee recalled.

While a deal was being struck, Navatek and congressional staffers worked closely on the legislative process. Every year, Congress prefaces the defense budget with massive reports describing the purpose of inscrutable line items. Staffers would include a project description so specific that Navatek would be the only logical pick.

Often, Navatek composed language that ended up, word for word, in Senate funding requests, former employees said. In 2019, for example, Navatek’s priorities were tucked into page 185 of the 307-page report released by the Senate Appropriations Committee. The committee set aside $21.5 million for “hybrid composite structures research for enhanced mobility,” “electric propulsion for military craft and advanced planing hulls” and a “test bed for autonomous ship systems.” Although Navatek’s name does not appear on the page, these were all projects the company requested, according to internal documents and interviews with former employees.

Once the budget passed, lawmakers’ staff leaned on Navy officials to award Navatek the money. Former contracting officers told ProPublica they felt pressure to go along because money from those contracts funded their office — and because members of Congress had confronted dissenting naval officials in the past. “There’s only so many battles you can fight,” one said. So Congress sometimes got its way even when Navatek’s projects made little sense.

Inside Navatek, employees referred to this strategy as “the method.” And it enabled the company to string together tens of millions of dollars in contracts. The result was the same as getting earmarks: a reliable, growing revenue stream bankrolled by U.S. taxpayers.

“It was a simple enough play. Let’s find the small states that have complementary universities … [and] let’s get access to their senators,” Eric Schiff, a former Navatek executive, told ProPublica. “I’ve met Susan Collins. You can get access to Susan Collins. Once we got the first things working with Maine, then we said, ‘Well, let’s keep reaching.’ And so we did.”

In a statement to ProPublica, Navatek founder Loui said Kao’s “unethical and illegal method of winning contracts” was a departure from how he operated the company prior to Kao’s ownership.

Kao boosted Navatek’s annual revenue from $10 million around the time Loui sold him the company to almost $40 million when he was arrested in 2020. In the second half of 2019 alone, Navatek paid a roster of five lobbying shops more than $500,000.

Even Navatek’s executives were surprised at how far their money went in D.C. “It was eye-opening for me, frankly. ‘Oh my God, all of it is for sale. It’s all for sale,’” Schiff said.

The key players in Kao’s pay-to-play deals went to great lengths to meet in person and leave no trace of an actual quid pro quo, he told agents. “That is why I literally had to fly to D.C. almost every week,” Kao later told the FBI. “Sometimes for a 15-minute meeting.”

But the FBI compiled emails, which ProPublica reviewed, that were suggestive of illegal bargains. Navatek executives and lobbyists spoke openly as if they were buying lawmakers’ assistance. In one back-and-forth, a lobbyist and a company executive described another senator as “fundamentally transactional” and having “a reputation as a pay-to-play office.”

In another message, Andy Winer, who former executives said was Navatek’s chief strategist, reminded Kao to budget money for political contributions based on how much the company wanted in congressional funding the following year.

Winer was his guide to the political underbelly, Kao said. A consummate insider, Winer had parlayed six years as chief of staff to Democratic Sen. Brian Schatz of Hawaii into a lucrative lobbying career with a firm called Strategies 360. One of Winer’s former colleagues compared him to the slick lobbyist on the Netflix show “House of Cards” who toggles between the political and corporate worlds.

In another email exchange scrutinized by the FBI, Kao asked Winer about making a $5,600 donation to nudge along a senator who seemed keen to work with Navatek: “Would that ‘help?’”

Winer, who had already donated himself, replied, “With my contribution, I think it sends the right message.” He suggested Kao split up his donation to be “less conspicuous.”

The method didn’t always work. Once, Kao complained that a senator had reneged on a deal and he ought to get his donations back.

“You should not feel aggrieved nor should you ever put that in writing,” Todd Webster, another lobbyist Navatek hired, replied. Webster did not respond to detailed questions.

Winer said he stopped working with Navatek following Kao’s arrest. “The political contributions I discussed with Kao were understood by me to be lawful political contributions. I never participated in, witnessed, or had knowledge of any illegal political contribution, bribe, or agreement to exchange a political contribution for an appropriation, contract, or other official action,” Winer said in an email to ProPublica. “I never advised Kao to make a contribution in exchange for official action.”

Strategies 360 has new ownership that did not oversee Winer while he represented Navatek, its CEO, John Oceguera, said.

Navatek employees began to notice members of Congress visiting their East Coast offices. “You would be like, ‘Oh, there’s this senator walking around,’ and we would get a picture with them,” one engineer recalled.

While some projects involved potentially meaningful research, Navatek’s bread and butter was R&D that went nowhere. As a slideshow prepared by an executive explained, “We thrive in the valley of death,” the term for the bureaucratic gap where research languishes without being developed into a product. The slideshow noted that none of the technology had ever actually been deployed.

The Office of Naval Research did not respond to a request for comment.

In Maine, Navatek was studying ways to modify small boats to reduce the “slamming” impact felt by passengers at high speeds. With the help of the University of Maine’s giant 3D printer, Navatek made a prototype and unveiled it at a press conference where a Guinness World Records representative declared it the world’s largest 3D-printed boat. But Navatek executives knew the Navy had no plans to use the new design, former employees said.

“[The work] got rolled into a few PowerPoint slides and a white paper, and that was the deliverable,” recalled one who worked on the project. “The boats weren’t delivered to the Navy — the Navy didn’t even want them.”

Kao to Collins: “Here to Help”

The first time Kao came face-to-face with Collins, in 2018, he told the FBI, he had to pay for the privilege.

Collins would not meet unless he agreed to donate to her campaign, he said. While it is not illegal for politicians to exchange face time for contributions — in this case, just a few thousand dollars — it was not the last time Collins would seek Kao’s support.

Navatek had been eager to expand beyond Hawaii, and Maine was a perfect beachhead — a small, coastal state hungry for high-tech jobs that happened to be represented by a senior member of the Senate Appropriations Committee. Collins, more than most appropriators, likes to trumpet the dollars she brings home.

To work with Collins, Navatek hired a lobbyist, Glen Mandigo, who also lobbied for the University of Maine and was tight with her office. Mandigo asked how much Navatek wanted in funding and how much Kao was willing to support Collins, Kao told the FBI. The University of Maine did not reply to a request for comment.

In that first meeting with Collins and her staff, Kao pitched an $8 million boat hull research project for Navatek and the university. Collins seemed supportive. Not long after, Mandigo called Kao and said Collins wanted him to bundle tens of thousands of dollars for her reelection, suggesting Navatek throw a fundraiser, Kao said.

In an email to ProPublica, Mandigo denied taking part in a pay-to-play arrangement.

“I did not advise Navatek officials, nor would I advise any client, that support from Sen. Collins was contingent on campaign donations,” Mandigo wrote. He said that in his 25 years of working with Collins and the Maine delegation, “I never saw or heard of such behavior from the Senator or her staff.” Clark, Collins’ deputy chief of staff, told ProPublica it was “wholly inaccurate” to say Mandigo was close to their office.

FBI agents had collected voluminous corporate records and email correspondence between Navatek and Collins’ inner circle. Much of that evidence aligned with the story they were now getting directly from Kao.

The FBI had spotted his out-of-the-blue donations in the summer of 2018, just before Collins included $8 million for Navatek’s proposal in the defense budget. Emails showed her staff made it clear to the Navy that it should send the money to Navatek. FBI agents also had evidence of Kao and Mandigo planning a fundraiser starting in April 2019. Their emails — with her scheduler and her campaign’s finance director — freely mixed talk of Navatek’s Collins-backed contract with plans to raise money for her.

The principals settled on hosting Collins for a publicity event at Navatek’s Maine headquarters in August 2019, where she posed for pictures with Kao and a model of the company’s experimental boat. Behind the scenes, the FBI saw in emails and company records, Kao orchestrated over $40,000 in donations from extended family in advance of the event. To avoid the legal cap on individual campaign contributions, the emails show, he told Collins’ team to reallocate his excess contributions to his father — which an agent highlighted and noted is against election law in a presentation to prosecutors — and sent them his father’s full name and address.

“This is perfect,” Amy Abbott, the reelection campaign finance director, emailed Kao after discussing his father’s contribution. “We are so grateful for ALL the Kao support!”

Before the event, Kao said, Collins, Abbott and another staffer met with him in private. One of the staffers told Kao the campaign expected more donations. It was in this meeting that Collins said, “You’ve seen me deliver,” he told the FBI.

Less than one month after the event, the Senate released a draft of the defense budget containing $21.5 million for Navatek’s pet projects in Maine. Kao emailed a Collins campaign fundraiser — who would in theory have nothing to do with a government contract — four days later, saying, “Thanks again for all the support from Sen Collins.”

“I’ve been involved in many tight races in the past and understand last minute ‘needs’ come up,” he continued. “We are here to help anyway we can … financially or whatever.”

Kao’s desire to donate even more money led to the fateful Corner Bakery meeting with the head of the Collins super PAC, called the 1820 PAC, Kao told the FBI. Unlike Collins’ campaign, which could accept only $5,600 per election from individuals, the super PAC could accept unlimited contributions.

The super PAC emailed Kao a memo before the meeting stressing the need to raise money with “urgency.” At the meeting, Kao and Reed, the super PAC’s chair, hammered out a deal for a six-figure donation, Kao told the FBI. Over email, Kao informed Reed of his shell company scheme, saying he had cleared it with his lawyer. “They are super vague and very difficult to get any background info on,” Kao reassured him. “Thanks for doing this,” Reed replied.

Emails Between Martin Kao and Scott Reed, Discussing Contributions to the Susan Collins Super PAC, 1820 PAC

“Hi Scott: Had a chance to discuss 1820 with my CFO and attorney last night. They are suggesting setting up a separate new LLC to make the donations. Name of new LLC: Society of Young Women Scientists and Engineers.

In my personal real estate investments, we often use LLCs that can be set up to “facilitate” transactions. They are super vague and very difficult to get any background info on. Totally legal and typically used in real estate transactions to conceal the identity of buyer/seller. Wanted to get your thoughts/concerns.”
—email from Martin Kao to Scott Reed, Nov. 22, 2019

“Very smart and glad your counsel understands. Thanks for doing this.”
—email from Scott Reed to Martin Kao, Nov. 22, 2019

“Great! We will proceed on getting this set up ASAP. Have a nice weekend.”
—email from Martin Kao to Scott Reed, Nov. 22, 2019

The FBI spoke to the other Navatek executives at Corner Bakery, who confirmed the meeting took place. One, David Kring, the company’s top scientist, told ProPublica he had no memory of what was discussed.

The other, Duke Hartman, told an FBI agent it was just “a get to know you meeting” with the chair of the super PAC and they did not discuss the “particulars of a donation.” Agents, records show, came to believe Hartman was lying about his role in Kao’s pay-to-play operation and would name him as a formal subject of a future investigation. Hartman was not charged. He did not respond to a detailed request for comment.

A few weeks after the $150,000 check to the Collins super PAC cleared, in February 2020, Kao and his team met with Collins’ office and secured a new round of funding.

“We were very warmly received,” Kao reported to his colleagues in an email obtained by the FBI. “Excellent meeting. Total of $32M will be supported.” Records show the Senate allocated at least $10 million that year based on Navatek’s proposals.

Navatek’s ambitions peaked in mid-2020. As the company waited to see if Collins would survive her reelection campaign, executives prepared to ask their champion on the appropriations committee for even more funding the following spring, internal documents show.

Other documents from that time show the company was courting senators from seven additional states and gunning for more than $200 million in new appropriations. Navatek expected to have offices in more than a dozen states by the end of the following year, including a new 15,000-square-foot facility in the Portland, Maine, harbor.

Kao, meanwhile, closed on a $4.5 million beachside home in an exclusive Honolulu neighborhood; the backyard pool had a waterfall feature. He renamed the company Martin Defense Group after himself, joking that it would simplify his future takeover of Lockheed Martin.

“It was working well, and it would have continued to work well,” said Schiff, the former executive. “Martin got greedy. Just got damn greedy.”

Downfall, Cover-up

In early 2020, the Campaign Legal Center, a nonprofit good government group, noticed something strange in the public filings for the Collins super PAC. The PAC had received a $150,000 donation from a newly created LLC with a typo in its name: the Society of Young Women Scientist and Engineers, with no S at the end of “Scientist.”

This was the $150,000 Kao donated after the Corner Bakery meeting. The money had come from Navatek’s account, not Kao’s, violating a ban on government contractors making donations.

The center suspected the society was not a real group but a pass-through to hide the identity of a major political donor. It filed a complaint with the Federal Election Commission. It took only a few days for a Hawaii journalist to discover Kao’s wife’s name on the society’s paperwork, linking the shell company to Navatek.

Inside Navatek, Kao shifted into damage control mode. He spoke to Reed and the super PAC’s lawyer, Cleta Mitchell, and began to hatch a cover-up. In an email released in civil litigation, Mitchell suggested the society make charitable donations — preferably in Maine — which would make it seem like a legitimate nonprofit. “I want to be sure that the LLC proceeds with the ideas we discussed — giving scholarships and recognition to women in engineering, etc.,” wrote Mitchell. “That would help both of us, I think.”

Mitchell added, “We should develop a plan and timetable, so there are some scholarships given over the next several months, and particularly, perhaps in Maine, where the bad press was.”

Mitchell, who later played a major role in Trump’s attempts to overturn the results of the 2020 election, did not respond to requests for comment.

Kao and his team settled on donating scholarships to women in STEM. They offered between $5,000 and $25,000 apiece to state universities where they were angling to win government contracts — that way, the cover-up would benefit them politically, too.

But Navatek’s and Kao’s problems were just beginning. Undeterred by scrutiny from the FEC, Kao defrauded the COVID-era Paycheck Protection Program newly passed by Congress. He inflated Navatek’s payroll to amass loans of $13 million, according to a federal indictment. The Navatek founder, Loui, had long since soured on his chosen successor. This was the final straw. He reported Kao to federal authorities.

“This is not how Navatek behaved or conducted business before I sold the company to Martin Kao,” Loui wrote to ProPublica. He said Navatek was successful before Kao’s ownership and had many sources of government funding. After Kao’s arrest, he added, the company fully cooperated with law enforcement.

Loui has since regained control of the company and renamed it PacMar. He is dedicated to restoring its reputation and ability to execute government contracts, he continued. Loui said he fired employees hired during Kao’s tenure who were “not capable of performing quality, professional engineering and science tasks.”

“The company received no Collins-supported funding after Martin Kao’s arrest, nor should it,” Loui added. “What Martin Kao and his cabal did was wrong.”

On Sept. 30, 2020, law enforcement raided Navatek’s Honolulu offices and arrested Kao for fraud. Federal agents in windbreakers seized his laptop and ordered the company’s IT staff to copy the company’s internal servers.

Navatek’s public flameout attracted the attention of Michelle Ball and Kevin Gounaud, two experienced agents in the FBI’s elite anti-corruption unit. Gounaud was a 20-year FBI veteran who had worked on elaborate undercover operations. Ball had made a name for herself taking on politically sensitive cases. In 2018, she led the investigation into Maria Butina, the Russian agent convicted of infiltrating the National Rifle Association in an attempt to influence the Trump campaign.

The agents began digging through thousands of records for details of Navatek’s lobbying operation, donation strategy and ties to politicians.

They zeroed in on Kao’s relationship with Collins. In a 60-slide presentation agents prepared for prosecutors, they highlighted contributions that Kao and his wife made to the senator in 2018, right before Collins placed the $8 million in research funding into the federal budget. Kao had also given Navatek money to various relatives to donate to Collins in 2019, sending her around $33,000 through these illegal straw donors, the indictment said. Kao’s wife and father did not reply to requests for comment.

The government charged Kao in two separate cases: one for defrauding the loan program and another for his campaign finance crimes. His love of talking like a wheeler-dealer — including over email — was a gift to investigators. In one email, he all but admitted the scholarships to young women were a diversion. “Whatever… just a pack of bitches getting free $,” he wrote.

In the face of overwhelming evidence, Kao pleaded guilty in both cases in the fall of 2022. Navatek by then was under court-ordered new management. Awaiting sentencing, Kao worked as a line cook at a Cheesecake Factory.

He began meeting with the same FBI agents and prosecutors who brought him down. For the agents, he was a rare witness: a contractor with deep ties to elected officials saying he would speak candidly about how Washington works.

Kao faced nearly a decade in prison. “My world and life imploded,” he would later recall in a letter to the Hawaii U.S. District Court. “I was fooled and foolish enough to believe that the power elected officials wielded, and [were] actively willing to sell to anyone wealthy enough to pay, was….‘smart business.’”

Over the next two years, Kao sat with agents for at least three dayslong interviews. He told them that politicians, Collins in particular, had been willing participants in his scheme. “It takes two to tangle,” he told them.

Taxpayers funded Navatek’s entire political operation, Kao said. “Most companies of our size do not have the resources to endlessly hire expensive lobbyists and make political donations,” he told the FBI. Navatek solved this by using money from government contracts to hire lobbyists and make campaign contributions, according to interviews, court testimony and internal company records. Diverting money from contracts for lobbying and political donations can be illegal.

For their final meeting, in September 2024, Kao handed the FBI the 50-page document detailing Navatek’s dealings with more than a dozen members of Congress and their staff. It was not only a confession but a road map, with the email addresses and phone numbers of people Kao thought agents ought to subpoena.

Last year, Kao was sentenced to 87 months in prison. The judge in his case offered no leniency based on his cooperation with the FBI. Loui is battling Kao in court to recover the millions he contends Kao stole from the company.

Both Scott Reed and Amy Abbott remain in Collins’ inner circle. Abbott is the finance director for her 2026 reelection effort, and Reed again chairs the main Collins super PAC. Abbott, who is married to Collins’ campaign manager, referred questions to the senator’s communications staff. Clark told ProPublica that Abbott and other campaign staff were interviewed by the FBI and that the campaign was never a target of the investigation.

Earlier this year, Kao agreed to meet a ProPublica reporter at the Federal Prison Camp in Yankton, South Dakota, where he is incarcerated. But on two occasions when guards summoned Kao over the intercom, he refused to enter the visitation room. Over email, he said he was no longer willing to meet, citing the ongoing litigation. He declined through his lawyer to respond to detailed questions.

By late 2024, Ball and Gounaud, the FBI agents, had come to believe there was enough evidence to warrant a broader investigation into bribery of members of Congress, according to a memo seen by ProPublica.

Before they could embark on their new mission, however, they became casualties of Trump’s retribution campaign.

Ball and Gounaud worked for the FBI’s elite anti-corruption unit known as CR-15, which specialized in investigating misconduct by elected officials. When Trump retook power, his new FBI director, Kash Patel, purged the unit agent by agent.

Ball was targeted for her work on the special counsel investigation of Trump’s failed bid to overturn the 2020 election. She was fired in October 2025 in a one-page letter stating she had “weaponized” the Justice Department. She is challenging her firing in a lawsuit. Gounaud was pushed out in early 2026. Both agents declined to comment through their attorney.

Trump also targeted the Justice Department attorneys who worked with CR-15. The team, known as the Public Integrity Section, collapsed spectacularly in February 2025 after staff were ordered to drop a case against New York City Mayor Eric Adams, a Trump ally. The unit’s leadership quit en masse. Trump appointees ordered the remaining prosecutors to halt new corruption cases, just months after Kao made his detailed confession.

Before Ball was fired, however, she managed to take a key step forward.

Based on all the evidence, she persuaded her supervisors to approve a new investigation. It centered on South Carolina, one of the states Navatek eyed for a rapid expansion. The FBI had questions about a steak dinner Kao shared with Sen. Lindsey Graham.

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The true nature of hastily erected ICE detention facilities — especially the so-called “Alligator Alcatraz” erected in Trump buddy Ron DeSantis’s home state — was called out by Mike Masnick shortly after its debut last June:

There’s no way to look at what the US government is doing here and not think of it more as Auschwitz than Alcatraz. The parallels are unmistakable: hastily constructed camps in remote locations, euphemistic naming designed to obscure their true purpose, and—most tellingly—officials proudly touring the facilities while discussing plans to build “a system” of such camps nationwide.

All of that is indisputably true of this detention facility, which was very belatedly “retired” roughly a year after its opening. While those arguing in bad faith will strive to point out the differences between Alligator Alcatraz and concentration camps run by other fascists over the years, most people will generally understand the comparison and not get hung up about the lack of gas chambers, hard labor sites, or mass graves.

This detention center was nothing more than a bunch of “tents” (generously speaking — much of it more resembled portable car ports than actual tents) housing a bunch of metal cages. Detainees were exposed to heat, humidity, swarms of insects, and routine abuse/neglect by the people hired by ICE to “manage” their detainment.

The official name for the facility is far more humane-sounding than the nickname routinely used by Trump, members of his administration, and Florida governor Ron DeSantis. “Alligator Alcatraz” was MAGA marketing. According the DHS Office of the Inspector General (OIG), the official name was “Florida Soft-Sided Facility” or FSSF.

FSSF was established by the state to better serve Trump’s mass detainment/deportation desires. The Florida Division of Emergency Management was somehow tasked with running this facility via a third-party contractor. While the DHS did not directly oversee this facility, the housing of federal arrestees for alleged immigration violations made it a de facto part of ICE operations — something aided and abetted by “several operative 287(g) agreements” with local agencies.

This likely explains the OIG’s decision to step into the breach and its ability to actually perform an unannounced inspection of “Alligator Alcatraz.” It started poorly, before getting much, much worse. From the OIG report [PDF]:

At the time of our inspection, FSSF staff could not clearly identify which detention standards they used for holding detainees on immigration-related charges. The absence of well-defined standards at detention facilities increases the risk that detainees may not receive appropriate care. When we asked the warden and staff which standards they used, we received inconsistent answers.

[…]

FSSF did not provide any written policy, procedure, agreement, or contract specifying the standards it followed, which undermines accountability and consistent application of detention standards.

What it looks like is what it is. Lowest-bidder plus zero standards or accountability. No one from the Trump or DeSantis administration was ever going to object to anything that happened there, so there was never any impetus to be better than the worst people imaginable.

This is what was done in our name by the Trump administration and its Florida-based enablers:

FSSF did not provide detainees with sufficient living space — less than half of what is required — creating cramped conditions for detainees who spent most of their time in their housing units.

And this:

We observed that there were no TVs or playing cards available, and reading materials were limited to religious texts, further restricting detainees’ ability to meaningfully occupy their time. One detainee in administrative segregation reported being held for 8 days in the SMU [Special Management Unit] without any opportunity for recreation.

And this:

FSSF leadership confirmed this limitation to legal materials, stating detainees could request escorts for scheduled legal appointments, but detainees could not access or retain legal materials otherwise. One detainee reported he did not have access to a telephone to speak with his attorney or ICE case officer during his 8 days in the SMU. FSSF had installed SMU telephones shortly before our inspection, but they were inoperable at the time of the inspection.

But especially this, which seems more Auschwitz than Alcatraz:

Between July 17, 2025, and January 18, 2026, FSSF confined 79 detainees in small metal enclosures — each offering about 18 square feet of floor space — for periods ranging from several minutes to nearly 2 hours, a practice unlike any OIG team has observed in ICE facilities. The use of such restrictive spaces is highly unconventional and does not align with standards for humane treatment.

If you’re not sure what 18 square feet looks like, the OIG has provided photos of cages that wouldn’t have looked out of place at the Hanoi Hilton:

Yeah, that’s fucked up. And the statements made by FSSF only make it worse:

Staff also reported that time spent in the small metal enclosures is closely monitored, and detainees are not locked in, even though we observed locking mechanisms on the enclosures.

And then there’s this, which is just psychopathic:

The purpose of a Holding Cell Space is to provide a safe and secure place in general population for detainees to reflect on their behavior choices, manage their emotions, reduce stress, and practice self-directed behavior.

This was posted on each “holding cell,” not only to make detainees feel like its was their own fault that they were locked in FSSF’s version of “tiger cages,” but to make those overseeing their detention comfortable with their decision to subject detainees to this particular form of torture. While the OIG did note that the average detention time was less than half of the posted two-hour maximum, it only does so after making it clear that it has never seen anything quite as fucked up as this in any of its other ICE detainment center inspections… ever.

And that’s on top of everything else that’s only the bare minimum expected when housing humans, like providing clean drinking water (nope), storing refrigerated food properly to prevent spoilage (nope), regular access to showers and other hygiene options (nope), and preventing insect infestations in cells, showers, and common areas (nope). If all of this doesn’t add up to a concentration camp, I don’t know what people actually think the baseline should be. It’s apparently far higher than I’m willing to accept. And it should be unacceptable to every American, even if they firmly believe we need tighter immigration standards.

Earlier this week we noted how California Democrats fecklessly folded to Paramount’s demands and settled the 12-state antitrust lawsuit against Paramount’s $111 billion merger with Warner Bros. We also noted how the conditions affixed to the deal are largely pathetic, and generally consist of a lot of performative fluff Paramount itself recommended and California AG Rob Bonta had previously laughed off.

But Bonta is thinking politically about not just Paramount’s lobbying influence, but any future relationships with potential presidential candidate Gavin Newsom or potential future California governor Xavier Becerra (both of whom rushed to pushing for settlement).

None of the conditions meaningfully protect consumers, labor, and markets from what’s coming, but they clearly spent a lot of time designing conditions that let them pretend otherwise.

That includes a purported “independent CBS and CNN oversight board” that’s supposed to prevent Larry Ellison from degrading CNN and CBS’ editorial mission even further. That’s something Paramount itself first floated last August, largely because it knows it will be able to safely ignore it (just as Rupert Murdoch did when he struck a similar deal after the acquisition of the Wall Street Journal).

And sure enough; as details leak out it’s clear the board is largely decorative. Insiders have already noted how the “independent” board will consist of journalists that have at least ten years experience in journalism, but they’ll be hand picked by Paramount:

“According to the terms of the settlement, the board must be established within 180 days of the closing of the deal. It will be composed of five current or former journalists with at least 10 years of experience each and will be appointed by the board of the company for three-year terms.”

That’s just profoundly embarrassing. There’s absolutely zero chance that Paramount is going to appoint the kind of folks capable of pointing out that Ellison, and underlings like Bari Weiss, are actively working to convert CNN and CBS into corporation and oligarch-friendly agitprop. And there’s really nothing preventing Paramount from tap-dancing around the requirements.

I’m sure, like a stopped clock, this board will occasionally and initially make a useful decision to give the impression it’s a real entity. But historically this stuff is designed to prevent real oversight, particularly by government. Former and current insiders at the network simply aren’t impressed:

“There is no way that is going to work,” former CNN anchor Jim Acosta said. “They will start to fire anchors and certain folks to send a message, and the rest will either have to fall in line or leave. This was a colossal mistake.”

CNN and CBS were already pockmarked with a lot of weak-kneed corporation-friendly journalism. Now that Ellison’s involved, both will indisputably begin to look more and more like other right wing propaganda outlets like the New York Post and Fox News.

These kinds of conditions are designed to make it look like responsible people are doing something about media consolidation — without actually doing anything about media consolidation. You protect consumers, labor, and markets by actively enforcing antitrust law; not by endlessly designing half-cooked half-measures that state regulators then fail to consistently enforce.

What’s extra embarrassing is that Democrats like Bonta, Karen Bass, and Newsom had an opportunity here to demonstrate that Democrats had backbone and actually care about subjects like media reform, media consolidation, and the rise of right wing propaganda and disinformation.

Instead they immediately buckled to Ellison’s threat that he’d move Paramount out of California, and are now patting themselves on the back for “saving jobs” — when the end outcome of these deals is always thousands of layoffs as the bigger company offloads merger debt to labor and consumers.

One nice thing about antitrust: if U.S. politicians were to actually enforce the law, we’d have markets more heavily peppered with the kind of small and mid-sized companies that lack the scale and political influence to threaten government when it tries to enforce the law.

Throughout this whole process Paramount (and by proxy a consolidated press) have made it sound like the 12 states were engaged in “radical leftism” simply by enforcing existing antitrust law. It’s important to remember how little Newsom, Bonta, Bass, and Becerra cared about standing up to corporate power the next time you’re in the voting booth.

A theme going on many years here at Techdirt has been the idea that separating content and advertising, as was the traditional model, makes far less sense in the modern era. Audiences are no longer captive in the way they used to be, with many ways to skip advertising. Entertainment vectors are far more plentiful then they used to be, with more options for how we spend our entertainment time. Eyeballs are the currency of the day, which has led to far, far more things competing for our attention.

Given all of that, content is always some form of advertisement, intentional or otherwise, and advertising definitely better include good content or it will be ignored. On the advertising side, this means creating ads of one sort or another that are engaging and interesting. That itself can take many forms, but absurdity and humor are a common method for achieving this.

And if you want absurdity and humor, allow me to introduce you to Ikea’s approach, which was to create a Skyrim mod.

Ikea, the Swedish furniture-and-stuff giant, has released a mod for Skyrim called Kallax Storageborn: A new companion who is also a shelf, who is also voiced by Matt Berry. If you think that sounds weird, it gets weirder, because this mod doesn’t just add a companion, it includes an entirely new questline built around the character. Becoming encumbered in the game, as will inevitably happen eventually, will give you the opportunity to visit an abandoned dwemer emporium, where you’ll embark upon a quest to “unravel the origins of a mysterious master.”

During this quest, you’ll assemble Kallax Storageborn, a companion “with unfathomable storage capacity,” who can be summoned with a newly-added Thu’um—Skyrim’s famous voice of power—even when he’s not your active companion. Your ultimate goal: Tidy up the clutter plaguing the realm of Nords and Dragonborn.

There’s more. You can acquire the Allenblade, which is, yes, a sword styled after an Allen wrench, a common tool shipped with Ikea furniture. There’s also a helmet that is made from a meatball, a nod towards Ikea’s famous in-store Swedish meatballs.

You can see the announcement video here for yourself.

This whole thing is incredibly dumb, and I mean that in the most endearing, praising way possible, because it’s also quite smart. It’s a creative way to advertise a brand and, yes, a specific model of shelving from a furniture store. The delivery is done with Monty Python-esque silliness, a motif which fits quite comfortably in the realm of Skyrim, an otherwise very serious game. The voice production is a nice touch. It doesn’t in any way take itself seriously.

And, if you’ve played Skyrim yourself for more than an hour, you’ll know that encumbrance and inventory capacity are major, and to some annoying, challenges within the game.

So, this is advertising on a relatively low budget in a game still widely played and modded to this day, with a mod that actually addresses something some players find annoying, and does so with absurd humor and self-deprecation. And a meatball helmet.

Whatever else you think of this advertising, there’s no denying that it’s also content.

Since its integration into our digital world, social media has played a pivotal role in youth organizing and social mobilization. Yet, people’s access to these platforms is increasingly coming under threat from courts and legislatures under the guise of protecting young people online—presenting a significant hindrance to youth organizing.  

In a major recent example, Meta settled in a lawsuit with 52 states and territories regarding the use of Instagram and Facebook by young people. The settlement will require Meta, and pressure other non-Meta owned platforms like TikTok and YouTube, to embed age gating practices into every product while also requiring restrictions on the accounts of people under-18, such as a two-hour daily time limit and content restrictions.   

Youth Power on Social Media 

Young people have been using social media for political advocacy and community organizing for more than a decade. From organizing protests speaking out against police brutality, to organizing nationwide school walkouts demanding safety in schools from gun violence, and striking to demand lawmakers take action to protect the climate, social media has become an instrumental tool for youth to both speak out and connect with other young activists.  

Instagram has become especially useful for activism online by young people. The features on the app make it a helpful tool for being able to efficiently and quickly spread awareness, which is especially important when people need to share real-time information. For example, 17-year-old Darnella Frazier’s video on Facebook showed the world the murder of George Floyd. 

The impact of youth activism online is also evident on non-Meta owned platforms, with services like TikTok and YouTube being particularly prevalent spaces for young people to share their stories, build movements, and amplify collective engagement.

However, in a digital world operating under the settlement’s new guidelines, young people risk not being able to read crucial news due to the content being labeled as “age-inappropriate,” which has already happened for teenagers in Australia under its social media ban.  

A two-hour daily time limit and a block on Meta’s apps between midnight and 6am leaves little room for young activists to organize rapid response efforts. Being unable to see likes on a post will make it difficult to gauge the effectiveness of their campaigns.   

Add to this what we already know about Meta’s content policies which claim to “protect children” and keep sites “family-friendly” but instead label content like LGBTQ+ content as “adult” or “harmful,” youth will be left with no choice in what content they see once the ‘age-appropriate’ content filter is turned on by default. One recent report noted that Meta had hidden posts that reference LGBTQ+ hashtags like #lesbian, #bisexual, #gay, #trans, and #queer for users with the sensitive content filter on. This would specifically curtail the efforts of young activists doing work on comprehensive sex education.   

Global Trends 

Measures like this are being discussed across the globe, but not all courts have taken such a short-sighted approach. In August, the French Constitutional Council got a lot right in its decision to strike down the country’s legislation banning under-15s from social media for infringing free expression and communication for everyone online, not just young people.  

The French Court also called attention to its infringement on privacy as the legislation would have forced people of all ages to hand over government IDs, face scans, and other sensitive information to prove their age and access online content.  

Requiring this much data from users puts activists in danger of even more surveillance. Meta has already previously complied with demands from law enforcement to hand over the messages of users. The amount of personal information that will be logged and that could be demanded via a warrant from police to stifle or investigate activists’ actions or plans could cause a chilling effect, forcing advocates to pause or terminate their work.  

This is egregious because these systems misidentify or lock out people of color, people with disabilities, and trans or gender-nonconforming individuals whose IDs may not match their chosen name or align with what the system expects them to look like upon verification. And it’s often these communities that benefit from online organizing the most, especially for marginalized youth as social media can often be the only place to organize and build community. 

What Young People Deserve 

The settlement generates headlines, but it will not solve the core problem. Instead of tackling Meta’s surveillance capitalism business model that turns all online content into potential profit and centers lining the company’s pockets over protecting the speech and privacy of users, this settlement gives the tech giant an opportunity to carve out a new digital world that prioritizes its own needs, not those of young people.  

As we’ve been calling attention to in other contexts, this will force young people into digital isolation—curtailing vital access to news and resources for health and development. It also completely ignores the calls of youths themselves who favor digital literacy and education over surveillance and government control.   

Young people deserve a better internet than one regulated through panic. They deserve better than the government or Big Tech getting to decide how they use social media and what they can or cannot be exposed to or learn about. They deserve better than having their right to free expression minimized. This must not be lost in the pursuit of building a better and safer online ecosystem and environment.   

Republished from the EFF’s Deeplinks blog.

Ever since Trump’s return to office, almost every federal law enforcement agency has been ordered to treat illegal immigration as their first priority. This is why the administration is gutting FEMA to direct more dollars to detention and removal efforts. And that’s why ICE is now the administration’s largest law enforcement budget line item.

To keep up with moving (and ever-increasing) deportation targets, the government has done everything from dismissing pending immigration hearings to stripping temporary protected status from thousands of vulnerable people to the very thing that has been rejected by hundreds of federal judges in thousands of cases.

The administration claims the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA or IRA, depending on which titles judges choose to use) gives it the power to treat any migrant — no matter how long they’ve been in the country — as someone who has been accosted while attempting to cross the border. Migrants who are slated for removal are generally given due process rights if they’re not arrested while attempting border crossings. Trump’s DOJ and DHS have constantly pushed the theory that due process rights do not apply to undocumented immigrants, no matter where they’re arrested or how long they’ve lived in the United States.

As the law stands — at least in terms of how it has been interpreted for the past 30 years — arrested migrants are supposed to receive a bond hearing and be released if they pose no threat of flight or to public safety. The administration goes hard in the other direction, pretending constitutional rights don’t apply to migrants. But it has repeatedly demonstrated it doesn’t even believe its own bullshit. That’s why arrested migrants are swiftly moved from where they’re arrested and shuffled from detention center to detention center to prevent them from filing habeas motions, which must be filed in the jurisdiction in which they were initially arrested.

So far, eight of eleven appellate circuits have ruled in favor of due process rights and against the administration’s desire to pretend the Constitution no longer exists simply because it has expressed a very novel interpretation of the 1996 law.

This loss in the Fourth Circuit brings the total to nine of eleven circuits. And this means the Supreme Court is going to be asked to sort this out, which isn’t exactly heartening. But here are some details on the latest, rather large loss by the Trump administration, as summarized by Politico’s Kyle Cheney:

A federal appeals court on Thursday rejected ICE’s effort to detain millions of people without bond, comparing it to the “historical stain” of Japanese internment during World War II.

“Mass detention of marginalized individuals without due process harkens back to some of the darkest moments in our country’s history,” 4th Circuit Court of Appeals Judge Nicole Berner, a Biden appointee, wrote in a 2-1 majority opinion joined by Judge Barbara Keenan, an Obama appointee.

There it is. The same people who excuse past racism as being a product of a “different time” are doing everything they can to revive this “different time” in the present and make it the “new normal” going forward.

The decision [PDF] notes that this legal action has been brought by two migrants who cannot truly be considered “recent” crossers of the border who were caught in the act of illegal entry. One of the plaintiffs has been here since the law the administration is now deliberately misquoting was first enacted (1996). The other plaintiff is far from a US rookie, having lived here peacefully and productively since 2005.

The government could not be more wrong. And this court isn’t willing to bless a self-serving interpretation that seeks to Make America 1942 Again.

Putting all of our tools of statutory construction to work, we hold that Section 1226, not Section 1225, applies to noncitizens who, like the Petitioners, have been present in the United States for years regardless of how they entered our country. Our holding accords with the text, structure, context, and purpose of the INA [1952’s Immigration and Nationality Act] as well as its universally accepted application for the past three decades. Though the Government’s construction finds some support in the text, it suffers several fatal defects. It renders entire portions of the INA meaningless, calls into question amendments to the statute in the intervening decades, including the recent passage of the Laken Riley Act, and raises significant constitutional concerns.

If we were to agree with the Government’s construction, we would need to conclude that, in passing IIRIRA thirty years ago, Congress intended to direct the single largest mass detention of human beings in our nation’s history. Section 1225 simply “cannot bear the weight of the millions of noncitizens it would potentially subject to detention without bond.”

This administration unabashedly does want courts to agree with its interpretation of the law and it definitely wants to engage in the “single largest mass detention of human beings in our nation’s history.” It doesn’t see this as problematic. Instead, it considers the courts’ nearly-100% rejection of its theories to be the real problem here. In response, it has chosen to directly insult and threaten judges, rather than craft any better arguments in support of its openly racist actions.

While this does put almost every circuit in opposition of the president and his efforts, it does make it clear a showdown in the Supreme Court is all but inevitable. Unfortunately, this iteration of the Supreme Court has repeatedly demonstrated that it believes the president should be able to unilaterally declare how laws should be interpreted, if not able to override them completely by simply issuing an executive order. The conservative majority of the court will undoubtedly do everything it can to prop up decisions delivered by the appellate exceptions to the rule.

When Elon first took over Twitter with grand plans to “bring back free speech,” I tried to help him run through the standard content moderation learning curve that basically every site created by a clueless tech bro runs through. They all start with “we’re the free speech site, we allow everything!” and very quickly someone points out that “everything” includes blatantly illegal child sexual abuse material (CSAM). I’ve since been told by multiple former X employees that Elon definitely saw that article and… absolutely hated it.

Anyway, soon after that Elon announced that “removing child exploitation is priority #1,” though also suggested people point out CSAM in replies to him if they saw it (which is not how that should be done at all, since it would just point more people to CSAM).

There was also little to no evidence that stopping CSAM was actually “priority #1” seeing that he fired most of the trust & safety team so that at one point there were fewer than 10 specialists working on CSAM. This caused X’s attempts at stopping CSAM to completely fall apart, with experts in the space seeing plenty of evidence that the problem was growing on the platform, rather than shrinking. It probably didn’t help that Musk personally intervened to reinstate the banned account of a conspiracy theorist he really liked after that conspiracy theorist posted one of the most infamous, and most horrifying CSAM images known to authorities.

Of course, that was in the early days. One would hope that a few years further up the learning curve, he’d have learned something. But this is Elon we’re talking about. Last year there was a report that one of the major tool providers for CSAM detection, Thorn, had cut off X, because Elon refused to pay the bill. At the time, X responded angrily to anyone asking about the Thorn situation by claiming that they had put in place their own, better technology to spot CSAM.

How’s that going? Not too well, according to the NY Times, which worked with the Canadian Center for Child Protection to scan X for known abuse imagery. The report covers two separate findings, both of which are alarming. First, there have been obviously lots of reports (and a growing number of lawsuits) regarding claims of Grok producing CSAM. Much of the early reporting, though, didn’t clearly distinguish between actual CSAM and images that are still horrifying and problematic, but probably don’t legally qualify as CSAM.

However, the Canadian Center for Child Protection is certainly able to determine what is actual CSAM, and they were able to find dozens of images that Grok created that appeared to qualify:

In December and January, Grok’s X account produced millions of images of people with their clothing removed in response to prompts from users. After a public outcry, X said it would halt the account from producing those images.

Later, the Canadian center found 65 instances in which Grok created sexualized or exploitative images of children before X halted the bot. During that time frame, users also prompted the chatbot to edit clothed photos of known victims of childhood sexual abuse and depict them in lingerie or bikinis.

Equally as concerning, though, was that the NY Times was able to use PhotoDNA, the baseline tool that many web services use to identify known CSAM via hash matching, and found even more examples this year:

The Times conducted its own scan for child sexual abuse material on X by writing an automated computer program that searched for related terms without displaying the images, which are illegal to view. Links to the images were sent to a Microsoft service that checked whether they were included on lists of known abusive material compiled by the National Center for Missing and Exploited Children and other child safety groups. Matches were verified by analysts at the Canadian Center for Child Protection.

The Times found more than 75 images between January and June. The program The Times wrote reported the images to the authorities. The images were removed, but some had been viewed hundreds of times.

This matters because stopping CSAM is a never-ending game of whac-a-mole when it comes to new material. But, for the most part, that’s not true for old material. PhotoDNA and a few similar offerings have gotten quite good at catching the set of “known” images that circulate over and over, and blocking those before they ever hit a site is baseline competency in trust & safety. These images should never have made it to the site, let alone “viewed hundreds of times.”

One explicit photo The Times’s automated program found on X, which has been known to authorities for at least seven years, showed a young girl with fluid on her face being raped orally. The post of the photo, which advertised the sale of similar illegal content, was publicly available for over an hour in March and received 16 likes and nine reposts from other users before The Times found and reported it.

The person depicted in the image, now an adult, said in an interview that she believed X profited from her abuse and further victimized her by not stopping the image from being shared.

“They’re getting benefits from my abuse, and it just feels like it’s never going to stop,” the woman said of X. She spoke on the condition of anonymity because she has been stalked by people who viewed images of her abuse online. “I get angry that I’m still having to go through this decades later, and that there doesn’t seem to be real-life consequences for people.”

The whole joke in that speedrun piece from four years ago was that Level One lasts about five minutes. You announce that anything goes, someone points out that “everything” includes CSAM, and you quickly learn how to start fighting CSAM — because that’s the one bit of content moderation that everyone agrees on. And the easiest version of that, catching the known images via hash-matching, has had obvious battle tested tooling for years. Elon chose not to use them, insisting he’d built something better himself (perhaps with Grok?). Yet, what he built appears to have been outperformed by a NY Times reporter with a script and access to the PhotoDNA API.

Four years in, and Elon still hasn’t cleared Level One of the curve. Yikes.