This Week in 2016

• Supreme Court Asks White House To Weigh In On Dancing Baby Fair Use Case
• My Talk At Wikimedia: Copyright Impacts Everything
• Copyright Office Fucks Over Thousands Of Sites With Plans To Remove Their DMCA Safe Harbors
• Hey, You Can Hack Your Car Without Violating Copyright Law (For A Little While)
• Finally Come The Calls In Major Media To Rethink Canada’s ‘Notice And Notice’ Copyright System
• Adobe Asked Google To Censor Techdirt’s Story On How Adobe’s DRM Got Cracked

This Week in 2011

• Go Daddy Supports E-PARASITE Legislation Even Though Its Own Site Is Dedicated To Theft Of Property Under Terms Of The Bill
• Do The Authors Of The Felony Streaming Bills Even Know What The Details Of Their Own Bills Mean?
• Content Industry Insists E-PARASITE Won’t Rewrite DMCA, But Co-Author Of The Bill Admits That’s The Plan
• The Article On The E-PARASITE Act That You Need To Read
• Joe Biden On The Internet: ‘If It Ain’t Broke, Don’t Fix It… Unless Hollywood Asks You To’
• Fight The Power: Chuck D Sues Universal Music For Hundreds Of Millions In Unpaid Royalties

This Week in 2006

• Greece Still Having Trouble Figuring Out The Internet: Arrests Blog Aggregator For Aggregating Content It Doesn’t Like
• Record Labels Not Planning On Sharing YouTube Windfall With Musicians
• NY Times Comes Out Against The Broken Patent System
• Internet Bill Of Useless Rights Proposed
• Remember How Shutting Down The Pirate Bay Was A Huge Victory For The Entertainment Industry?
• If HTML Were Invented Today, Someone Would Try To Patent It

The national embarrassment that is America’s measles problem continues to have devastating effects. While the federal government generally, and RFK Jr. specifically, blissfully ignores the thousands getting sick from a disease that was declared eradicated more than two decades ago, it all continues to get worse and worse. We have the tools at our disposal that would have precluded all of this sick and suffering, of course, but we’re currently being governed by ignorant anti-vaxxers that have spent decades driving down vaccination rates. Only days ago, we learned that a 7th person died just this year from measles.

If you thought this was purely an East Coast problem, you were wrong. The country now has its 8th fatality from measles this year, this time in Wisconsin. The anti-vaxxer movement puts everyone in danger, not just the unvaccinated. If you need a reminder of that, well, this latest fatality in Wisconsin was that of an infant, too young to be vaccinated.

An infant in Wisconsin has died of measles, the state health department said Thursday — the third measles-related death reported in the U.S. this week. It’s Wisconsin’s first measles-related death since 1990, the Health Service Department said, adding that a coroner had listed measles as the infant’s immediate cause of death.

None of the eight people who have died were vaccinated, according to state health departments; some were ineligible because of their age or health status. Typically, the first dose of the vaccine is administered around a child’s first birthday.

The deaths of every one of these people is on the heads of the anti-vaxxer movement. But there is a special flavor of anger that should be reserved for infants — infants! — who are dying as blameless victims, killed before they could be vaccinated. That this is occurring is abhorrent. That the current administration is staring down the deaths of children and doing nothing about it is criminal. We went 30 years without a measles death in the entire country. Now we have 8 so far in one year, along with thousands of confirmed infections and climbing.

Around 85% of kindergartners in Wisconsin have been vaccinated against measles — below the national average of 92%. Experts say 95% is the threshold needed to keep the population protected.

“We can actually eliminate transmission of measles in the community by getting enough people vaccinated,” said Dr. Ryan Westergaard, the state epidemiologist for communicable diseases. “We have the opportunity to take a disease that could affect everybody and essentially make it go away.”

Go away again. Damn it, we did this already. Fire or impeach RFK Jr. and show the country that you’re serious about fixing this.

In the past two years, the federal government has unlawfully consolidated data exposing our private information. 

This consolidation has been chaotic but generally came in three rolling waves: It started with DOGE, moved to agency-to-agency data sharing with ICE, and then attempted data-driven purges of state voter rolls.

We all deserve to live in a world where the data we use to pay our taxes, receive benefits, and vote is not combined and weaponized against us. The amalgamation of data leads to mistakes, abuses, and a lack of trust in institutions meant to protect us. Overall, it can chill our participation in society. This is particularly true for groups disfavored by this administration—especially immigrants and protesters.

Congress highlighted similar abuses—including the creation of enemies lists and snooping on activists and federal employees—following the McCarthy and Watergate eras. And the increasing use of computers to magnify those harms led Congress to pass a slate of protections like the federal Privacy Act of 1974.

The good news is that many people have stepped forward to resist the federal government’s unprecedented and unlawful data consolidations. Many groups, including EFF, have filed lawsuits to enforce our data privacy laws, and many states have, too. Legislators at the federal and state levels have worked to expose and oppose these surveillance programs. And many people have protested for their right to data privacy.

Existing data privacy protections have been essential in the past two years, but they can be improved. This should include: narrowing loopholes and increasing enforcement in existing laws, limiting the government’s purchase of data on the commercial market, and passing a comprehensive consumer privacy law.

Data Consolidation by DOGE

Starting on January 20, 2025, President Trump created DOGE—essentially renaming an existing agency originally meant to modernize government technology. Rather than engage in modernization, DOGE quickly obtained high-level access to sensitive databases across the government that store millions of people’s personal records—including at the Office of Personnel Management (OPM), the Social Security Administration, and the Treasury Department.

DOGE was staffed with people with little government or cybersecurity knowledge and who often had conflicts of interest. DOGE’s early aim was not always clear, aside from gaining “prompt access to all unclassified agency records” and the “sharing and consolidation” of those records.

The result? The indiscriminate firing of government employees and the decimation of important agencies that focused on consumer protection and foreign aid. It also resulted in clear misuses of data. For example, while working with DOGE at the Social Security Administration, one individual signed an outside agreement with an advocacy group with the aim of using SSA data to find evidence of alleged voter fraud and “overturn election results in certain States.”

DOGE’s data access and consolidation violated the federal Privacy Act, which limits the sharing and consolidation of government databases. Many groups stepped in to sue. For example, EFF and our co-counsel at Lex Lumina LLC and Democracy Defenders Fund, on behalf of two public employee unions (AFGE and AALJ), sued the OPM for unlawfully disclosing federal workers’ information to DOGE. After EFF and others secured early victories, the government sought to end the lawsuits by firing many DOGE agents and removing their access to records. A great deal of damage remains in need of a judicial remedy.

Data Consolidation by the Department of Homeland Security (DHS)

Even as DOGE’s influence diminished, federal agencies have attempted to share, compare, and seize large databases, in order to target immigrants. In some cases, they have succeeded. This happened with tax records at the IRS, Medicaid data from the Department of Health and Human Services (HHS), and public housing data from the Department of Housing and Urban Development. The Department of Agriculture also sought to collect databases regarding Supplemental Nutrition Assistance Programs (SNAP) from states.

Many groups have filed lawsuits to block this anti-immigrant-motivated data consolidation, alleging it violates privacy protection laws. EFF filed amicus briefs in support of two of these lawsuits: Centro de Trabajadores v. Bessent, which concerns IRS data; and California v. HHS, which concerns Medicaid data (and where we teamed up with EPIC and Protect Democracy). Most recently, states have stepped up to challenge the federal government’s attempted seizure, for immigration enforcement purposes, of state commercial driver’s license data held by the American Association of Motor Vehicle Administrators, a non-profit organization.

This data consolidation for immigration enforcement has also included government purchase of commercial products. This includes ICE’s purchase of commercial location data without a warrant, and its interest in “Big Data and Ad Tech providers.” ICE also has contracts with companies like Palantir, which help organize all the datasets the agency collects.

Data Consolidation for Voter Purges

The right to vote is fundamental to every democracy. That’s why EFF has long advocated for cybersecurity in voting systems, to make sure every vote is properly counted.

Voter purges are a longstanding threat to the right to vote. State and local officials regularly delete people from the voter registration rolls, often for bad reasons and without adequate notice. This has a disparate impact against people of color.

Now the federal government is trying to purge voters, too. To do so, it has consolidated our data in three ways. First, it is using an old data system called SAVE for a new purpose: checking voter eligibility. Second, it has seized voter information from states. Third, it has created a federal list of eligible voters.

As a direct result, people with a right to vote will be purged from voter rolls because of erroneous data. Others will be intimidated from voting or registering. And all registered voters suffer a violation of their data privacy rights: information collected for one purpose is being used against them for another purpose.

Expansion of SAVE

Since 1986, the federal government has operated SAVE, which stands for Systematic Alien Verification for Entitlements. It is not a database, but it facilitates easy access to databases. It is used to determine whether immigrants and naturalized citizens are eligible for various government benefits, such as food stamps.

In 2025, the federal government started using SAVE for a new purpose: checking voters’ eligibility. Further, SAVE now provides access to new databases and allows bulk searches. More than 60 million voters have been run through SAVE, and 21,000 were flagged as potential noncitizens who are ineligible to vote. Erroneous flags have caused purges of lawful voters – such as Anthony Nell.

A case called League of Women Voters v. DHS challenges this expansion of SAVE. The plaintiffs are represented by CREW, Democracy Forward, the Fair Elections Center, and EPIC. A federal judge held this program unlawful and set it aside. DHS appealed and asked for a stay of this order, and a federal appellate court denied the stay. Unfortunately, the U.S. Supreme Court granted the stay, exercising its controversial “shadow docket” authority by a six-to-three vote.

Federal employees in DHS’s “Fraud Detection and National Security Unit,” which ordinarily investigates alleged immigration fraud, have been re-assigned to examine voter eligibility. A whistleblower alleges that employees have been directed to go to state election agency websites, enter some of a voter’s personal information, and thereby access more of it. This may violate state laws requiring a person, before accessing a voter’s information, to attest they are that voter or have that voter’s authorization.

Federal Seizure of States’ Voter Information

Since 2025, the federal government has demanded that at least 48 states hand over their voter information. At least 16 states have complied. The federal government is running this information through SAVE, searching for voters to purge.

The federal government has sued 30 states for refusing to comply. So far, courts have dismissed 25 of these suits. There’s also a lawsuit against this data grab, titled Common Cause v. DOJ, brought by CREW, Protect Democracy, and the ACLU.

The New Federal Voter Eligibility List

In March 2026, President Trump issued an executive order requiring DHS to create a list of people who are U.S. citizens, aged 18 or older, and residents of the state. The order also requires DOJ to prosecute anyone, including state and local officials, who provides a ballot to a person who is not eligible to vote in federal elections.

In California v. Trump, 24 states allege that this executive order violates the Constitution’s separation of powers. A federal judge enjoined this program, and an appellate court denied a stay. But the U.S. Supreme Court by a six-to-three vote granted a stay, which allows the program to move forward. (By a seven-to-two vote, the Court denied a stay of an injunction against a different part of the same executive order, which concerned mail-in ballots.) Another legal challenge, titled EPIC v. USCIS, alleges that the new federal voter eligibility list violates the Privacy Act as well as the separation of powers.

Next Steps

It is encouraging to see so many people, groups, and states step forward to protect our data privacy from these unlawful waves of federal data consolidations. Still, more work remains. For example:

• The Privacy Act of 1974 has proven a critical bulwark. But after a half century, it could use a refresh. For example, Congress should close its loopholes and expand its enforceability.
• Law enforcement agencies must be prohibited from avoiding the Constitution’s warrant requirement by buying our personal data from brokers. For example, Congress should pass the “Fourth Amendment Is Not For Sale Act.”
• We need a comprehensive consumer data privacy law, among other reasons to reduce the flood of our personal data that corporations provide to law enforcement agencies. Legislators should check out EFF’s “privacy first” framework.

In the meantime, there’s no time like the present to practice surveillance self-defense, like using strong passwords and disabling your phone’s ad identification.

Republished from the EFF’s Deeplinks blog.

Last year when Donald Trump sued Rupert Murdoch over the WSJ’s article revealing the… um… birthday card he sent Jeffrey Epstein, we pointed out that it was a pure SLAPP suit (and also that it was against a guy who, you could argue, is one of the main reasons he ever got elected). Trump insisted, both publicly and in the lawsuit, that the letter was “a fake thing” and that he never wrote it. So, of course, after the lawsuit was filed, the birthday card was released by the House Oversight Committee that had subpoenaed the Epstein Estate. You’ve seen it by now in all its creepiness.

As we pointed out, the lawyer who brought the suit, Alejandro Brito (who has become the latest of Trump’s go-to lawyers) didn’t seem to have much experience with defamation law, and it shows. Earlier this year, the judge in the case, Darrin Gayles, dismissed the lawsuit while pointing out its many faults. But he gave Trump leave to file an amended complaint, and Trump (of course) took it.

But, no more. Last week Gayles dismissed the lawsuit — with prejudice this time, making sure Trump can’t refile — and the order makes clear that Gayles absolutely knows this lawsuit is bullshit. He opens with a Justice Brandeis quote (from his 1927 concurrence in Whitney v. California) that the Supreme Court leaned on in NY Times v. Sullivan, the 1964 ruling that established our modern-day understanding of how the First Amendment and defamation law work:

Those who won our independence believed * * * that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Famously, the Sullivan case (which includes this quote of the earlier Brandeis concurrence) established the “actual malice” standard for defaming public figures. And, as we repeat every time “actual malice” comes up, it does not mean what people think it means in plain English. Actual malice means that the content was published knowing that it was false or with “reckless disregard” for whether or not it was false — which, in practice, means they had to have entertained serious doubts about whether what they were publishing was true. Judge Gayles had explained the actual malice standard to Brito in the original dismissal, noting that the complaint “comes nowhere close” to meeting the actual malice standard.

Brito, it appears, learned little in his second attempt.

As Judge Gayles notes, the amended complaint still fails to show actual malice:

Here, the Amended Complaint falls short of pleading actual malice. Indeed, the allegations regarding malice are conclusory, vague, sometimes inconsistent with the Article, and often irrelevant to whether Defendants knew or should have known that the statements in the Article were purportedly false.

As the court points out, just claiming that the WSJ “should have known” the content was false is not enough for actual malice. Similarly, the fact that Trump told the WSJ that the story wasn’t true doesn’t make it actual malice. This comes up in all sorts of defamation cases. The plaintiff claims “well I told them it was false, and therefore it’s actual malice.” But that’s not how it works, because people often deny true things.

In effect, President Trump argues that once he declared the Letter a “fake,” Defendants should have disregarded everything else they learned in their investigation and not published the story. But that is not what the actual malice standard requires and runs afoul of the First Amendment. Indeed, were that the law, any time a public figure or his team denies an accusation, journalists would be immediately blocked from publishing negative or contradictory press—a result that flies in the face of the “American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions[.]” Sullivan, 376 U.S. at 269 (quoting Bridges v. California, 314 U.S. 252, 270 (1941)). Moreover, the Article did not ignore or minimize President Trump’s denial. Rather, it informed readers that President Trump decried the Letter as a fake and denied writing it. By “allowing readers to decide for themselves what to conclude from the [Article], . . . any allegation of actual malice [is] less plausible.” Turner, 879 F.3d at 1274; see also Michel, 816 F.3d at 703 (holding that “reporting perspectives contrary to the publisher’s own should be interpreted as helping to rebut, not establish, the presence of actual malice”).

On top of that, the court points out that merely claiming the reporters didn’t do enough investigation is not enough to show actual malice:

As detailed above, a failure to investigate, without more, does not establish actual malice. Id. Rather, “a plaintiff must show the defendant deliberately avoided investigating the veracity of the statement in order to evade learning the truth.” Reed, 2025 WL 1874638, at *3. The Amended Complaint comes nowhere close to this standard. Indeed, the Article details a thoughtful and detailed investigation. Before running the story, Defendants contacted President Trump and his team, Justice Department officials, and the FBI for comment. President Trump and his team responded with his denial, the Justice Department did not respond at all, and the FBI declined to comment. Defendants also attempted to speak with Maxwell; she did not respond to their request and her attorney stated that she was focused on her case before the Supreme Court. In addition, Defendants reached out to other individuals named in the Birthday Book, including Leslie Wexner and Alan Dershowitz, and to individuals involved in binding the Birthday Book, who confirmed that Weitz put the book together. In short, President Trump’s allegation that Defendants failed to conduct an adequate investigation is rebutted by the Article and is insufficient to establish actual malice

The judge accuses Trump and his lawyers of “grasping at straws” to “manufacture flaws with the investigation” but again points out that none of that meets the actual malice standard:

Grasping at straws, the Amended Complaint attempts to manufacture flaws with the investigation. First, it alleges that the investigation was lacking because Defendants only reviewed the Letter but did not have a copy in their possession. The Court cannot discern any substantive difference—and certainly not one that would establish actual malice—between Defendants reviewing the Letter before publication and obtaining a copy of the Letter. Defendants reviewed the Letter and later reported on its contents. Nothing in the law suggests that Defendants needed to obtain, retain, or publish a copy.

Also, when the judge has already made clear that your lawsuit is bullshit, maybe don’t play games like pretending the WSJ didn’t report on Trump’s denial when they actually did:

Finally, the allegation that Defendants intentionally omitted President Trump’s denial that he signed the Letter or a discussion on whether the signature on the Letter is authentic, [ECF No. 67 ¶¶ 57-60], is belied by the Article. It states, multiple times, that President Trump denies writing the Letter and that “[i]t isn’t clear how the letter with Trump’s signature was prepared.” [ECF No. 68-2]. This is more than sufficient to encompass any denial that he “signed” the Letter or that the signature on the Letter is authentic.

While Murdoch and the WSJ asked for fees under either Florida or New York’s anti-SLAPP laws, Judge Gayles says it’s unclear which state’s laws apply to the claims here, and that matters, given that they have very different procedural postures. So he reserves that issue to explore separately.

Of course, Donald Trump and Alejandro Brito are not one to give up lightly. They’ve already told the judge they’re appealing to the Eleventh Circuit. Good luck finding an Eleventh Circuit panel that sees actual malice in a complaint this thin.

Meanwhile, Brito, who is also representing Trump in Trump’s even more disastrous lawsuit against the BBC, might want to spend a bit more time focusing on that case? The BBC turned around and decided to use the discovery process to demand all sorts of info on Trump’s businesses and he’s been running and hiding, even backing out of a scheduled deposition citing “other matters of national importance” on a day he spent at a political rally and Mar-a-Lago. But the magistrate judge in that case, Enjolique Lett, has said that Trump has until December 11th to give a deposition or he could face consequences. And the DOJ is also running around trying to block former special counsel Jack Smith from testifying as well.

So, while the bullshit SLAPP suit against Murdoch and the WSJ is dead (pending an appeal that looks doomed), the one against the BBC seems to be blowing up in Trump’s (and Brito’s) face spectacularly.

And this is why we don’t file SLAPP suits.

It’s also why we need more and stronger anti-SLAPP laws in every state and at the federal level. The very fact that this court can’t even deal with the attorney’s fees issue at this point, because of the complex interplay of different state anti-SLAPP laws (and how they work in federal court) is all the more reason to fix our anti-SLAPP laws across the entire country. And maybe, with this new incoming Congress, we can finally get that.

All good things come to those who wait? Maybe. Maybe not. Sometimes, you need to take action to make good things happen. Other times, you just have to hang back and wait for the slow-moving wheels of justice to do their thing.

It’s the latter here. Last month, an ICE officer deliberately (allegedly) ran over a fleeing person with their ICE-mobile. The whole thing was caught on camera, albeit not by any of the cameras ICE officers are supposed to be wearing. Instead, it was caught by a CCTV camera operated by a local business.

ICE claimed migrant Miguel Parra-Hernandez “ran in front of an ICE vehicle,” which resulted in the severe injuries one might associate with being run over by an SUV. This narrative lasted less than a day before CCTV footage showed an ICE vehicle crossing a street and accelerating through a parking lot before accelerating through Miguel Parra-Hernandez. (It also showed ICE officers moving crime scene evidence — the vehicle Parra-Hernandez exited — from the street where it stopped to the parking lot where he was run over.)

A refresher course:

As anyone can see from the footage, the ICE vehicle swung in and took the man down, even though there was no “public safety” reason that might possibly justify running over some random fleeing person.

Local Houston (TX) prosecutors felt the same way, especially after it was revealed that the person ICE was actually hunting had likely been dead for nearly a decade. They moved forward with criminal charges, resulting in a grand jury indictment of ICE officer Mario Alberto Morales. This indictment was especially unique, given where it happened.

The agent, Mario Alberto Morales, 33, is facing state charges of aggravated assault with a deadly weapon, said Sean Teare, the district attorney in Harris County, which includes Houston. He added that Mr. Morales has not surrendered. Efforts to reach Mr. Morales were not successful, and it was unclear whether he had legal representation.

Mr. Morales is the first federal agent to face charges in Texas as part of President Trump’s immigration crackdown. 

Things have changed since this October 30th report from the New York Times. Mr. Morales has now surrendered, as NBC News reports:

ICE officer Mario Alberto Morales turned himself in Monday after being indicted last week in connection with running over a man who was on foot. 

“In connection” is an extremely generous interpretation of the incident caught on tape by an entity ICE officers apparently didn’t expect to be engaged in always-on recording. For now, though, Officer Morales remains more free than the man he (allegedly) ran over, who is presumably still recovering from multiple surgeries to repair his crushed legs. Morales was hit with a $30,000 bond, but has reportedly bonded out, which puts him back on the streets, but presumably not back in an ICE uniform.

More digging into this officer’s time as an ICE goon has managed to highlight pretty much everything that’s wrong with ICE’s current hire-now-worry-about-it-later surge that began shortly after Trump took office for a second time.

Training has been minimized and hiring standards have been lowered. Morales was part of that surge, hired by ICE in August 2025. Texas prosecutors highlighted this lack of experience and presumed lack of training during their statements following the indictment. Morales is represented by an idiot, which doesn’t mean he’s representing himself. Instead, he’s represented by an actual idiot, who thinks actions by red state prosecutors are politically motivated — a wild-ass claim buttressed by even more wild-assed claims about what Morales was doing when he (apparently and [still] allegedly) decided to run over a fleeing person.

“This Democratic district attorney has great issues with the conservative Republican Party government’s ICE agenda, and he’s trying to pick a fight with them, but he’s smashing this individual to do so,” [David] Lindenmuth said.

Lindenmuth said the car strike was accidental and happened as Morales reacted to avoid hitting a car that was in front of him.

I’m not sure what “smashing this individual” means in this context. I assume it’s a Freudian slip that refers to his client “smashing” an “individual” — an act that led to his client being indicted on vehicular assault charges.

As to the rest of his statement — that his client was just trying to avoid hitting another car in the parking lot — well, let’s go back to the recording and let it speak for itself:

Then there’s this new fact, which was not captured by the CCTV camera: Morales not only didn’t care what happened to the person he decided to deliberately/allegedly strike with his vehicle, but he also didn’t care about the other detained migrants that were involuntary passengers when he decided to turn his car into a guided missile:

According to the DA’s office, Morales had two handcuffed arrestees sitting in the back of his car without seat belts when the vehicle hit Parra. 

According to public records and other information obtained by prosecutors, Morales’s law enforcement experience is limited to a stint as a military police officer (less than 2 years) and seven months as a prison guard. Those seven months mean even less than the less-than-illustrious career that saw Morales exit the military with pretty much the same rank he entered it with (Private First Class).

Here’s the upshot of the seven months Morales spent as a Texas correctional officer:

He resigned in 2018 while on probation with the agency for falsification of records, specifically documenting security rounds as completed when they had not been conducted…

That apparently led to seven years of unrelated employment. No wonder Morales took a shot at ICE’s $50,000 signing bonus, especially when he had a few years of law enforcement-adjacent “experience,” even if that experience was vastly overshadowed by his inability to do his job honestly and/or remain employed in the law enforcement field.

Morales isn’t a poster boy for ICE misconduct. He’s just another contributor, which makes him as unique as an involuntary reflex. The only thing that’s different is that he got caught. Now, we just have to hope that it sticks.

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You may have heard some talk in the last week or so regarding a criminal case against two former FBI agents, supposedly having something to do with Hunter Biden’s infamous “laptop.” On Monday, a magistrate judge dismissed the case, noting that it was pure political hackery.

A federal judge on Monday tossed out a criminal case ​accusing two former senior FBI officials of lying about their involvement in an investigation of former President Joe Biden’s son ‌Hunter, excoriating the Justice Department for bringing what he said was a political prosecution before Tuesday’s midterm elections.

US Magistrate Judge Zia Faruqui threw out the case at a remarkably early stage, finding that prosecutors had not shown sufficient evidence that the two officials, Nikki Floris and Bradley Benavides, both former high-ranking FBI counterintelligence officials, had knowingly made false statements.

“What has transpired here cannot be described as anything other than weaponization” of federal law enforcement, Faruqui said during a court hearing.

But the reason behind the actual case is so stupid, and so convoluted, that it’s difficult for most people to follow. Indeed, MS Now’s Steve Benen put up a post correctly calling the case “dumb,” but even he got the details wrong, claiming that the FBI agents “worked on the Hunter Biden laptop case.“

But part of what makes this case so dumb is that the two agents in question did not work on the Hunter Biden case at all, even if most of the media coverage suggests otherwise. They were working on something entirely different. They were arrested because, years later, they were asked during a congressional interview about their knowledge of the laptop, and both answered that they didn’t really know much about the laptop (which, again, was not something they were directly working on), and that was the “lie to Congress” the DOJ went after them for.

Part of this actually has to do with the never ending MAGA fantasy that “Hunter Biden’s Laptop” was the scandal of the century. In the past, I’ve dealt with the complete fabrications regarding the false claims that the FBI told Twitter to censor the story about the laptop. That did not happen. But some of the conspiracy theories about this revolve around the claim that the store owner where Biden had brought some computer equipment in for repair had delivered hard drives to the FBI a year or so earlier.

It is clear that the FBI did get access to some computer equipment that once belonged to Hunter Biden in late 2019. Though, it appears that this material was somewhat different than what became the source material for the infamous NY Post story in October 2020. At issue was that there were multiple copies of the data in question. There was a laptop and an external hard drive. There was data that the repair shop owner (John Paul Mac Isaac) copied from the laptop in the spring of 2019 to the hard drive as part of his attempt to repair (both machines were then never picked up).

The FBI was alerted to this leftover equipment and eventually got a subpoena and picked up the machines in late 2019. Mac Isaac apparently made a backup copy of all the data, and in 2020 got some information from the backup to Rudy Giuliani through a colleague of Giuliani, who then got it to the NY Post, who published their story about it.

The FBI team that picked up the computer equipment in late 2019 were investigating Biden for a few things, including financial impropriety. There is little indication that there was anything all that important on either the laptop or the hard drive. But, because “the laptop” looms so large in the minds of MAGA conspiracy theorists, they are also convinced that it was a HUGE priority of everyone in the FBI in 2019 and 2020. They are positive that basically every FBI agent was intimately familiar with the laptop and how important it was.

And that means that they assumed that when the NY Post story broke in October of 2020, everyone at the FBI immediately knew that the story was “legit” because the FBI already had possession of one copy of the data. That’s part of the reason they claim it was so damning that the FBI told Twitter to take down the story (which, again, the FBI never actually did).

The confusion (or, really, the confirmation bias) came from conspiracy theorists mashing that together with an entirely separate story: FBI folks who worked on “foreign interference” had given very general warnings to social media platforms to watch out for foreign agents, including the Russians, launching misinformation campaigns targeting high profile figures in US politics. People from Twitter and Facebook have said (sometimes under oath) that FBI agents gave them general briefings to watch for Russians leaking “hacked data” and for content targeting key political figures. Reports are mixed on whether Hunter Biden’s name ever came up, and if it did, it was likely in passing, as one example in a longer list.

The conspiracy theorists believe — with no evidence — that the reason Hunter Biden may have been briefly, incidentally, mentioned in these discussions was because the traitors in the FBI were trying to suppress the eventual leak of the “laptop” which “THE FBI ALREADY POSSESSED!!!” But, again, the more likely explanation was just that the agents working on foreign influence had no idea about the laptop (which was part of a financial crimes investigation) and were generally mentioning the kinds of people who might be targeted, which would likely include anyone in and around the Biden family (and likely also the Obamas, the Clintons, and Kamala Harris).

It’s worth restating, because you need to understand this chain of weak connections to understand how this case was eventually brought: the nutjobs believed that the FBI got the laptop and hard drive in 2019, knew it was full of damning stuff, then collaborated with social media companies to eventually suppress the bombshell reporting on it, because they wanted Biden to win. That’s the scandal in a nutshell. The problem is that none of that is true.

So, that takes us to this year. Back in July, Donald Trump gave a rambling speech blaming China for the 2020 election, even though the “evidence” he released showed that everyone agreed that Russia had, in fact, tried to meddle in the 2020 election while China had decided to sit it out. In that speech, Trump whined that “rogue bureaucrats” had suppressed information about Chinese meddling and kept it from him.

They seemed to concentrate on Floris in particular because she had convinced the FBI to retract an initial report that the Albany office had released, based on a highly questionable Chinese source about potential interference in the election. But the sourcing was sketchy (he claimed China was building bunkers in Republican states). So Floris convinced the FBI to pull back that report — which Trump now claims was an attempt to hide from him that China was interfering in the election.

However, as a part of Floris getting that report retracted, she made a joke, saying she was “running a shadow government” within the FBI.

Because of her frustration with the shoddy report coming out of Albany, she pushed to have all FBI offices releasing any reports regarding foreign interference in the election go through her office handling Foreign Influence campaigns since they’d have a better sense of what’s real. In explaining that effort to a colleague, she jokingly texted “i’m basically running a shadow government across the FBI at this point.”

But, of course, Donald Trump and Kash Patel misread that to mean that she was part of “the deep state” running a “shadow government” in the US. Indeed, they dropped the “across the FBI” part of her quote, making it sound like she was running a shadow US government. Trump mentioned it in his big “China interfered!” speech.

One email among intelligence analysts admitted that they had, quote, deliberately massaged the presidential daily briefing to withhold information regarding Chinese activities related to the election. Another official inside the FBI wrote that she was running, quote, a shadow government, unquote, to keep intelligence about China’s election meddling from becoming known and to keep it away from the honorable press.

That’s… not at all what she said or implied. But, Kash Patel had been given his orders and immediately ordered an investigation. Patel highlighted the very out of context “shadow government” quote in his triumphant tweet about the arrest of Floris and Benavides, while also accusing them of lying about their (non-existent) involvement in the Hunter Biden case.

According to testimony at last week’s three-day preliminary hearing (aptly covered by Anna Bower at Lawfare), the very next day after the speech, Kash Patel directly tasked an FBI agent (something that agent testified was unprecedented in his 24-year career) to investigate former FBI agents for apparently not telling Trump enough about China’s (non-existent) attempts to interfere in the 2020 election.

Special Agent Bryan Witt (or possibly Special Agent Byron Militello — we’ll get to that) apparently then just combed through everything Floris and Benavides did to try to find something to charge them with. When the original assignment (that recalled report from the FBI’s Albany office on Chinese interference) turned up nothing chargeable, investigators shifted to the most technical of technicalities.

In 2023 (nearly three years after the NY Post story about the laptop) both Floris and Benavides were called before a congressional committee that was fully down the conspiracy theory rabbit hole that the FBI tried to suppress the story of the laptop. So they asked those two FBI agents about their knowledge of the laptop and both basically said “yo, that wasn’t our job, didn’t really know much about it, we were focused on actual foreign influence campaigns.”

But, the FBI then went back to their communications from when the NY Post story came out, and showed that Floris and Benavides had been curious about whether or not the FBI had the laptop in question, and had asked around to find out more info about it. The complaint makes a big deal of the fact that the FBI criminal team that got the laptop had met with Benavides and Floris in August of 2020 (before the NY Post story came out) as part of preparations for some “defensive briefings” (basically warning people that they may be targets of foreign influence campaigns) given to some Republican Senators (Chuck Grassley and Ron Johnson). The affidavit is vague on this point, hinting (without strong evidence) that FITF prepared to discuss Hunter Biden as a potential target during that defensive briefing.

When the NY Post story came out, Benavides was asking around about whether the FBI actually had the laptop, which suggests he didn’t know they had it:

So, that indicates that he didn’t know about the laptop and was just curious if the FBI had a copy. Benavides and Floris then worked with others at the FBI to figure out how to answer questions — including from Senator Mark Warner — regarding their own estimation of whether or not the files the NY Post revealed were real or if they were a part of a foreign influence campaign, as some suspected. Benavides basically pointed out that they should say that “the FBI has not made that determination in this specific instance and… won’t comment on investigations or investigative actions.”

Basically, the foreign influence side of the FBI was pretty much in the dark as well and didn’t want to say too much.

After sending that out, he kept digging with other folks at the FBI to find out about the laptop:

Benavides left the FBI in November of that year, but the complaint details that Floris had a few more conversations about Hunter Biden over random emails at the end of 2020 and throughout 2021. It cites… seven whole emails over a period of 10 months, but makes it seem like that number of emails meant that it was “a regular topic between FLORIS and her FITF subordinates.”

Three years later, in 2023, Rep. Jim Jordan had the House Judiciary Committee on a basically never ending quest to accuse the “deep state” of “conspiring” with Twitter to suppress this story. As part of that, he hauled both Floris and Benavides in for questioning. During that questioning, both of them were quizzed repeatedly about “the Hunter Biden laptop” and both said — accurately — that it wasn’t something they were investigating, because it wasn’t. Remember, they were focused on foreign influence campaigns, and the only place that crossed over was some early questions about whether or not the NY Post story was the result of just such a campaign, which it turned out not to be.

Floris repeatedly points out that her work had nothing really to do with Biden’s laptop. Benavides claims that he remembers some of the hubbub about the laptop when the NY Post story was published, but didn’t recall any of the details until he reviewed the Wikipedia page days before the Jim Jordan hearing.

From this… the DOJ claims that Floris and Benavides lied to Congress.

That’s literally it.

Because when the NY Post story came out, the two had brief discussions about it (effectively crossing t’s and dotting i’s since it wasn’t really within their purview). Then, three years later, Jim Jordan hauled them in while trying to gin up a fake controversy that the FBI suppressed info about the laptop, and they accurately said it wasn’t their thing. And then, three years after that, because Donald Trump demanded Kash Patel find some scalps, the FBI went hunting for literally anything they could find.

Meanwhile, the DOJ continued its track record of absolute incompetence in this case. They filed a complaint that includes a statement of facts signed by Special Agent Byron Militello which made some pretty big claims. Oddly, they did not go to a grand jury to try to get an indictment first. It’s possible they realized just how weak the case was and knew they’d never get an indictment (at least not before the midterms, which is what they clearly wanted). So they just filed the complaint without it, which is odd. But that also entitled the defendants to a preliminary hearing, which meant someone from the FBI would have to answer questions on the stand about all of it.

So, then, just hours before that hearing was supposed to happen, they tried to file a “superseding criminal complaint” with a declaration that was quite similar to Militello’s (though toned down in some key areas) and this time signed by a different Special Agent, Bryan Witt. But again they fucked up. A complaint needs to be made under oath before a magistrate, but they hadn’t done that. Also, there’s no such thing as a superseding complaint. There are superseding indictments, but that’s different.

The DOJ basically looks like it has no clue what it’s doing.

When called on this by the magistrate judge, Faruqui, the DOJ said that you could do a superseding complaint and that they didn’t need a probable cause finding from the judge because they weren’t seeking a new arrest warrant (that’s not how any of this works). Faruqui (correctly) refused to treat the filing as a complaint.

Then Witt (who signed the later declaration) was put on the stand where he basically had to admit to the differences between his declaration and the original “statement of facts” signed by Militello, effectively admitting that that original complaint was full of some pretty important errors. Also, Witt’s updated version claimed that Benavides was under oath when he testified before Jim Jordan’s committee, but on the stand admitted that was false (kinda a big deal).

Either way, the whole thing turned into a complete joke, mainly because people up and down the DOJ, and MAGA staffers in Congress, so thoroughly believe their own conspiracy theories about Hunter Biden and the deep state that they cooked their own brains into believing that a truthful “we didn’t work on Hunter Biden issues” statement in 2023 to Congress somehow implicated them in “lying to Congress” because in 2020, while working on foreign influence and election issues, they very briefly overlapped as the Hunter Biden story became public — and they sought to figure out if the story was part of an actual foreign influence campaign, and asked around to others at the FBI to see what they knew.

This is the most nothingburger of nothingburger stories, and the judge finally saw it for what it was. Political theater in an attempted “October surprise” before the midterms.

But just the fact that it’s taken me nearly 3,000 words just to explain the nonsense, and even experienced reporters think these two former FBI agents actually did work on the Hunter Biden case should give you some sense of just how ridiculous MAGA conspiracy theories run these days, and the lengths one has to go through to debunk them.

For years I’ve noted that while Elon Musk’s low-Earth-orbit (LEO) Starlink satellite broadband system can be very useful for people with no other options (war zones, RVs, boats, rural Americans), the network has struggled to maintain performance as it grows into more mainstream markets, resulting in not only widespread slowdowns, but also the company socking users with massive “congestion surcharges.”

These surcharges are actively designed to deter use because the network is struggling to handle the load. They started at around $100 a few years ago, then jumped to $750. Then suddenly $1500. And because Musk’s companies historically don’t invest in customer service, calling up to complain doesn’t really help.

Now Musk’s Starlink has jumped on the “dynamic pricing” trend, charging users more money in more congested markets, and ideally less money in less congested areas. But since companies aren’t keen to charge you less and lose money historically, the shift toward such pricing (especially in telecom) generally always involves most people paying more:

“The Missouri-based Reddit user who received the email said their Residential 100 Mbps plan is increasing from $50 per month to $60.50, effective in their next billing cycle on or after Nov. 30. Another user on Facebook, also in Missouri, reported their Residential Max plan increasing to $156 per month, up from $130.”

Many of the users seeing new dynamic pricing increases had just seen price hikes, as Starlink increasingly raises prices and imposes annoying new restrictions on usage. Because we’ve gutted our telecom consumer protection regulators (you know, for innovation), there’s really nobody left to ensure that Starlink’s calculations are consistent or fair.

Last year, a study from researchers at X-Lab showed that Starlink struggles to manage the load as the network grows, making it ill-suited as serious game changer for U.S. access. So as the network scales up, Starlink will be forced to impose more and more limits and restrictions on usage to ensure that most people have an acceptable experience. The laws of physics are kind of annoying like that.

That a niche broadband option gets congestion normally wouldn’t be that big of a deal; the problem is Trump Republicans have hijacked and retooled the $42.5 billion infrastructure bill broadband grant program to throw what could be billions of dollars — and millions of new customers — at Musk’s Starlink as a personal favor to one of the U.S. president’s biggest donors.

This is, to be clear, immense taxpayer subsidization for a satellite network Musk planned to deploy anyway without subsidies. As front-line cheerleaders in the cult of Musk, Republicans genuinely believe that Starlink is akin to some sort of connectivity magic — and can just be sprinkled around generously to quickly fix the entirety of U.S. connectivity woes. It doesn’t work that way.

Musk’s fraud-riddled SpaceX IPO prospectus “predicts” that Starlink is going to quickly grow from its current 13.6 million subscribers to something more akin to 300 million. But the service simply isn’t capable of scaling in this way; and the company’s purported push into trying to compete with cellular wireless with small femtocells is broadly being maligned as a very costly mess (one telecom analyst recently stated it was “one of the top three dumbest ideas in my four decades of being in this industry“).

Musk’s own erratic and treasonous behavior is also heavily incentivizing more LEO competitors to come to market, which will also erode per-subscriber revenues in the years to come as the company is finally forced to try and take pricing seriously.

In the interim, as federally-subsidized users are driven toward Starlink as an illusory quick fix for the U.S. digital divide, the congestion, price hike, and capacity issues will only get worse. And that’s not great news for a country where broadband affordability continues to be the biggest impediment to adoption, and the federal government has completely abandoned any pretense of caring.