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[l] at 7/2/20 4:30am

The law enforcement agency involved with the first reported false arrest linked to facial recognition software is talking about its software. The Detroit Police Department -- acting on a facial recognition "match" handed to it by State Police investigators -- arrested resident Robert Williams for allegedly shoplifting watches from an upscale boutique.

Williams did not commit this robbery. He even had an alibi. But the investigators weren't interested in his answers or his questions. They had a lo-res screen grab from the store's CCTV camera -- one that software provided by DataWorks Plus said matched Williams' drivers license photo. Thirty hours later, Williams was cut loose by investigators, one of which said "I guess the computer screwed up" after rewatching the camera footage with Williams present.

The officers ignored the bold letters on top of the "match" delivered by the software. The writing said "This document is not a positive identification." It also said the non-match was not "probable cause for arrest." Unfortunately for the misidentified Michigan resident, the cops who arrested him treated the printout as both: positive identification and probable cause.

The policies governing law enforcement's use of this tech have changed since Williams' arrest in January. Under the current policy, lo-res images like the one that led to this arrest are no longer allowed to be submitted to the facial recognition system. That fixes a very small part of the problem. The larger problem is that the tech is mostly good at being bad. This isn't a complaint from critics. This comes directly from the top of the DPD.

In a public meeting Monday, Detroit Police Chief James Craig admitted that the technology, developed by a company called DataWorks Plus, almost never brings back a direct match and almost always misidentifies people.

“If we would use the software only [to identify subjects], we would not solve the case 95-97 percent of the time,” Craig said. “That’s if we relied totally on the software, which would be against our current policy … If we were just to use the technology by itself, to identify someone, I would say 96 percent of the time it would misidentify."

So, it's a bad idea to rely on the software and nothing else when attempting to identify criminal suspects. What happened to Robert Williams supposedly should never happen again… according to policy. But there's the question of why the PD still uses the software if it's not adding much value to the investigative process. It seems officers don't care much for the tech and yet it's still in use. The police chief thinks it's still worth keeping around, even if it has yet to show any positive results.

Craig and his colleague, Captain Ariq Tosqui, said that they want to continue using facial recognition because they say it can be a tool to assist investigators even if it doesn’t often lead to arrest. But even when someone isn’t falsely arrested, their misidentification through facial recognition can often lead to an investigator questioning them, which is an inconvenience at best and a potentially deadly situation at worst. According to Tosqui, the technology has been used on a total of 185 cases throughout the years. “The majority of the cases the detective reported back that [the software] was not useful.”

What it can do, apparently, is add another layer of surveillance on top of what's already in place. And it will do what most law enforcement surveillance creep does: put more eyes on Black residents. Part of the mild reforms Detroit enacted -- rather than implement a facial recognition ban -- mandate the publication [PDF] of facial recognition data by the department. Since the beginning of this year, the PD has used the tech 70 times. All but two of those instances involved a Black resident's photos being submitted.

One of the main sources for uploaded photos is the Project Green Light (PGL) network of cameras [PDF]. These are installed in or around businesses that participate in the project. Participation comes at a cost: $1-6,000 for the initial investment and $1,600 a year in video storage fees. The 550 participants' cameras are supposedly monitored 24/7 at the PD's "real time crime center." Incoming footage can be subjected to other surveillance tech, like facial recognition software and automatic license plate readers.

Here's the panopticon the city wanted:

The City of Detroit put forth a Request for Proposals for a contractor to work closely with the city, DPD, and Motorola (Company that help set up the RTCC) to set up a “turn-key” facial recognition system that would work with the already existing infrastructure of the RTCC. They specifically asked that the facial recognition work on at least 100 concurrent real-time video feeds, be integrated into the PGL system, and can be used by officers with a mobile app.

It got the software it needed from DataWorks: a blend of two algorithms known as "Face Plus." It's scary stuff.

Face Plus is capable of automatically searching all faces that enter camera frames against photos in the entity’s database, alerting authorities to any algorithmic matches. Additionally, there is a “watchlist” option where persons of interest can be monitored and alerted for…

According to DataWorks Plus, in 2017, this repository contained 8 million criminal pictures and 32 million “DMV” pictures. As the Free Press reported in March 2019, almost every Michigan resident has a photo of them in this system.

This is the system the police chief calls 96% inaccurate and DPD investigators call useless. Perhaps this false arrest, which has made national news, will put the brakes on the planned expansion of PGL and Face Plus to all public transit stops and vehicles. Or maybe it will convince the city it's paying too much for something that barely works and take facial recognition away from the PD until something better -- and less biased -- comes along.

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[l] at 7/1/20 8:22pm

The NYPD has made internal discipline procedures a loop so closed that even its "independent" oversight -- the Civilian Complaint Review Board -- can't get in the door. The NYPD is effectively its own oversight. Decisions made by the CCRB can be overridden by the Police Commissioner. Even if the Commissioner agrees with the findings, recommended punishments can be departed from or ignored completely.

This story of police misconduct springs from this accountability void. ProPublica journalist Eric Umansky lives in New York City. Last year, while trick-or-treating with their daughter, his wife witnessed an unmarked police car hit a black teen. This happened in full view of several witnesses, including a person who worked at a business near the scene of the accident.

“Yeah, I saw a cop car hit a kid,” a waiter told me. He said he had a clear view of it: A handful of kids were running. One of them jumped out into the street and got hit by the police car, “probably going faster than he should have been.” He saw the boy roll over the hood and fall to the ground: “It sounded like when people hit concrete. It made a horrible sound.”

This eyewitness account agreed with what Umansky's wife had seen. But the end result wasn't a plainclothes officer being cited or disciplined for hitting a kid with his car. Instead, it was just a small part of a full-blown police rollout, where officers swarmed the street to run black teens and pre-teens up against the nearest wall.

Apparently, this is how an investigation unfolds. Officers were responding to a report that a group of teen boys had attacked another teen and stolen his cell phone. One of the officers responding was in plainclothes, driving an unmarked car against traffic. This was the officer that hit one of the running teens. A bunch of other teens who just happened to be on the street were picked up by cops and hauled to the station.

Umansky tried to follow up on this incident. The kids arrested by the officers were all released around one a.m. the next morning. They were given no paperwork on their arrests or the names of their arresting officers. Umansky was at the station the night it happened and couldn't get answers from any NYPD personnel.

He called the next day and talked to the NYPD's spokesman, who happens to be a former journalist. This was a dead end as well. The spokesman, Al Baker, simply said the arrested teens were being charged with resisting arrest. But this was the real kicker: the official word from the NYPD was that this was teen-on-car action, not the other way around.

I spoke to four witnesses, including my wife. All of them said they saw the same thing. When I called Baker back, he told me that my wife and the three others were mistaken. The car hadn’t hit the kid. The kid had hit the car.

As his statement put it: “One unknown male fled the scene and ran across the hood of a stationary police car.”

And that was it. The NYPD declared its own officer free of guilt or responsibility. There's still an investigation open, but there's little chance this will result in discipline of the plainclothes officer. In fact, there's little chance it will ever be resolved at all. At this point, the CCRB has 2,848 open investigations. And, as Umansky's article points out, moving these forward is almost impossible at this point.

Since the pandemic started, officers haven’t allowed CCRB to interview them remotely, meaning investigations have effectively stalled. The police unions had objected to doing it over video.

“We won’t do Zoom,” one union spokesman told The City. The CCRB is re-starting in-person interviews soon. It noted 1,109 investigations are awaiting police officer interviews.

Most CCRB investigations aren’t completed, and not just because of police intransigence. The roughly 100 investigators can only handle so many cases at once.

Thanks to the pandemic, the CCRB's budget has been cut, meaning there's even fewer investigators digging into thousands of cases containing allegations against officers who refuse to speak to them.

Even if the CCRB decides it would rather watch a recording of the alleged incident, rather than deal with a more uncooperative witnesses, it's not going to find anything there either. First off, the NYPD stonewalls CCRB request for camera footage. Then it finds some reason to deny the request. If it can't deny the request, the CCRB will receive the footage -- with any redactions the NYPD feels are necessary -- months after it has asked for it.

More immediate access to footage is possible, but it involves having to travel to the precinct to watch the footage while bound, gagged, and heavily-supervised.

CCRB investigators can now go to a room and watch footage. The agreement stipulates that CCRB staff can only take notes. They cannot record anything or use footage they see of abuse that happens to be different from the specific incident they’re investigating. They must sign a nondisclosure agreement.

With all of these unaccountaiblity practices in place, it comes as no surprise the NYPD would claim a person hit by a car driven by one of their officers was actually just an assault on an innocent police car by a person fleeing the forces of justice.

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[l] at 7/1/20 4:36pm

Last week, we wrote about the president's brother, Robert Trump, suing his (and the president's) niece, Mary Trump to try to block her from publishing her new book that criticizes the president. The initial filing to block the publication failed for being in the wrong court, but the follow up attempt has succeeded, at least temporarily. NY Supreme Court (despite the name, this is the equivalent of the district court in NY) Judge Hal Greenwald doesn't seem to have even bothered to do even a cursory 1st Amendment analysis regarding prior restraint, but agreed to rush out a temporary restraining order, while ordering the the parties to brief the matter before July 10th on whether or not the ban should be made permanent.

This is not how this works. As Walter Sobchek famously explained: "the Supreme Court has roundly rejected prior restraint." Or, as 1st Amendment lawyer Ken "Popehat" White notes:

The judge has likely beclowned themself. Highly unlikely this will survive, even less likely it will prevent widespread distribution of the book. https://t.co/7UyqRYbrQF

— EmbersHat (@Popehat) June 30, 2020

Mary Trump's lawyer, Ted Boutrous (who knows this stuff better than you do) says that they'll be appealing. According to the Courthouse News link above:

“The trial court’s temporary restraining order is only temporary, but it still is a prior restraint on core political speech that flatly violates the First Amendment,” Theodore Boutrous, an attorney for Mary Trump with the firm Gibson Dunn, said in a statement. “We will immediately appeal. This book, which addresses matters of great public concern and importance about a sitting president in election year, should not be suppressed even for one day.”

The lawyer for Robert Trump, Charles Harder (who, yes, once was the lawyer in a case against us), did his usual song-and-dance as well:

“The actions of Mary Trump and Simon & Schuster are truly reprehensible,” Harder said, referring to the book’s publisher.

Publishing a book that reveals important public information about the President of the United States is the opposite of reprehensible. What is "reprehensible" is abusing the law to file censorious SLAPP lawsuits on behalf of the rich and powerful.

He went on:

“We look forward to vigorously litigating this case and will seek the maximum remedies available by law for the enormous damages caused by Mary Trump’s breach of contract and Simon & Schuster’s intentional interference with that contract,” Harder added. “Short of corrective action to immediately cease their egregious conduct, we will pursue this case to the very end.”

Harder and Robert Trump will lose this case and the book will be published. The 1st Amendment and free speech will win, no matter how many times Harder seeks to deny such basic rights to people.

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[l] at 7/1/20 2:35pm

As expected, the EARN IT Act is set to be marked up this week, and today (a day before the markup) Senators Graham and Blumenthal announced a "manager's amendment" that basically rewrites the entire bill. It has some resemblance to the original bill, in that this bill will also create a giant "national commission on online child sexual exploitation prevention" to "develop recommended best practices" that various websites can use to "prevent, reduce, and respond to the online sexual exploitation of children," but then has removed the whole "earn it" part of the "EARN IT" Act in that there seems to be no legal consequences for any site not following these "best practices" (yet). In the original bill, not following the best practices would lose sites their Section 230 protections. Now... not following them is just... not following them. The Commission just gets to shout into the wind.

Of course, we've seen mission creep on things like this before, where "best practices" later get encoded into law, so there remain significant concerns about how this all plays out in the long run, even if they've removed some of the bite from this version.

Instead, the major "change" with this version of EARN IT, is that it basically replicates FOSTA in creating a specific "carve out" for child sexual abuse material (CSAM, or the artist formerly known as "child porn"). It's almost an exact replica of FOSTA, except instead of "sex trafficking and prostitution" they say the same thing about 230 not impacting laws regarding CSAM. This is... weird? And pointless? It's not like there is some long list of cases regarding CSAM where Section 230 got in the way. There are no sites anyone can point to as "hiding behind Section 230" in order to encourage such content. This is all... performative. And, if anything, we're already seeing people realize that FOSTA did nothing to stop sex trafficking, but did have massive unintended consequences.

That said, there are still massive problems with this bill, and that includes significant constitutional concerns. First off, it remains unclear why the government needs to set up this commission. The companies have spent years working with various stakeholders to build out a set of voluntary best practices that have been implemented and have been effective in finding and stopping a huge amount of CSAM. Of course, there remains a lot more out there, and users get ever sneakier in trying to produce and share such content -- but a big part of the problem seems to be that the government is so focused on blaming tech platforms for CSAM that they do little to nothing to stop the people who are actually creating and sharing the material. That's why Senator Wyden tried to call law enforcement's bluff over all of this by putting out a competing bill that basically pushes law enforcement to do its job, which it has mostly been ignoring.

On the encryption front: much of the early concern was that this commission (with Attorney General Bill Barr's hand heavily leaning on the scales) would say that offering end-to-end encryption was not a "best practice" and thus could lead to sites that offered such communication tools losing 230 protections for other parts of their site. This version of EARN IT removes that specific concern... but it's still a threat to encryption, though in a roundabout way. Specifically, in that FOSTA-like carve out, the bill would allow states to enforce federal criminal laws regarding CSAM, and would allow states to set their own laws for what standard counts as the standard necessary to show that a site "knowingly" aided in the "advertisement, promotion, presentation, distribution or solicitation" of CSAM.

And... you could certainly see some states move (perhaps with a nudge from Bill Barr or some other law enforcement) to say that offering end-to-end encryption trips the knowledge standard on something like "distribution." It's roundabout, but it remains a threat to encryption.

Then there are the constitutional concerns. A bunch of people had raised significant 4th Amendment concerns in that if the government was determining the standards for fighting CSAM, that would turn the platforms into "state actors" for the purpose of fighting CSAM -- meaning that 4th Amendment standards would apply to what the companies themselves could do to hunt down and stop those passing around CSAM. That would make it significantly harder to actually track down the stuff. With the rewritten bill, this again is not as clear, and there remain concerns about the interaction with state law. Under this law, a site can be held liable for CSAM if it was "reckless" and there are reasons to believe that state laws might suggest that it's reckless not to do monitoring for CSAM -- which could put us right back into that state actor 4th Amendment issue.

These are not all of the problems with the bill, but frankly, the new version is just... weird? It's like they had that original "earn" 230 idea worked out, and were convinced that couldn't actually work, but were too wedded to the general idea to try to craft a law that actually works. So they just kinda chucked it all and said "recreate FOSTA" despite that not making any sense.

Oh, and they spring this on everybody the day before they mark it up, giving most experts almost no time to review and analyze. This is not how good lawmaking is done. But what do you expect these days?

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[l] at 7/1/20 1:19pm

Brazil's legislature is set to vote on its proposed "fake news" law. This law would criminalize speech the government doesn't like, under the handy theory that anything it doesn't like must be "fake." There was some mobilization on this not-even-legal-yet theory back in 2018, ahead of an election, when the Federal Police announced it would be keeping an eye on the internet during the election process. There are plenty of ways to combat misinformation. Giving this job to people with guns is the worst solution.

The EFF has put together a summary of the worst aspects of the proposed law. And they are the worst. First and foremost, lawmakers have realized a law that targets users the government can't identify is completely worthless. Brazilians will pretty much need a license to communicate with others -- something achieved by turning platforms and app makers into bouncers at the internet nightclub.

[T]he bill (Article 7, paragraph 3) requires “large” social networks and private messaging apps (that offer service in Brazil to more than two million users) to identify every account’s user by requesting their national identity cards. It’s a retroactive and general requirement, meaning that identification must be requested for each and every existing user. Article 7 main provision is not limited to the identification of a user by a court order, also including when there is a complaint about an account’s activity, or when the company finds itself unsure of a user’s identity.

No doubt legislators will say comforting things about protecting anonymous speech as the bill is debated. But those platitudes will be emptier than usual. Users are permitted to use pseudonyms. But they're also required to provide their legal identities to these platforms.

Brazilians can't bypass this identification process by using only phone apps to communicate. SIM card registration has been in place since 2003 and the proposed law expands on that, requiring private messaging apps to delete accounts that are no longer linked to registered phone numbers.

Since the law is triggered when alleged fake news reaches (a very low) critical mass, social networks and messaging apps are required to log pretty much everything users do, just in case. Since it's impossible to predict what will go viral, logging will be continuous.

These obligations are conditioned on virality thresholds and apply when an instance of a message has been forwarded to groups or lists by more than 5 users within 15 days, where a message’s content has reached 1,000 or more users. The service provider is also apparently expected to temporarily retain this data for all forwarded messages during the 15-day period in order to determine whether or not the virality threshold for “massively forwarded” will be met.  

This provision basically makes all users guilty until their inability to find an audience proves them innocent. The safest thing for tech companies to do is log continuously and retain forever, since there's always a chance of sleeper hits reaching a broad audience weeks or months after the content was originally posted. The law mandates a four-month minimum for retention. It does not place a limit on maximum retention length.

The law also mandates that this massive collection of info be available remotely 24/7 for perusal by government regulators. This massively increases the chance of a harmful data breach by expanding the attack surface to every user and every government employee granted access privileges. And if there's an opportunity for abuse by government employees -- and there is -- it will be abused.

This logging and demands for identification from messaging/social media users obviously makes any assurances about respecting users' privacy blatantly false. The proposed law pretty much renders the country's data privacy law -- passed in 2018 -- irrelevant. The law can't protect internet users from careless logging and extended retention of user info -- not when the government's demanding service providers and social media platforms do exactly this to aid in the regulation of third-party content.

Then there's this problem: even if the law fails to pass, the Federal Police have made it clear they're going to punish people for spreading "fake news."

A top police official just yesterday warned that, absent a new law, they will invoke the authorities of one of the dictatorship era’s most repressive laws: the so-called Law of National Security, which contain deliberately vague passages making it a felony to “spread rumors that caused panic.”

The government will be in the censorship business with or without the new law. Since it obviously desires to be more fully involved in the business of censoring, the law will likely pass, since it will give the police (and others) a whole lot of data and PII to work with. The current leader of the country bearing the First Amendment brand declares news he doesn't like to be "fake." We shouldn't expect anything better from other countries which have engaged in open censorship of government criticism in the past, no matter what niceties are said about protecting the public from misinformation.

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[l] at 7/1/20 11:43am

Over the last few weeks Parler has become the talk of Trumpist land, with promises of a social media site that "supports free speech." The front page of the site insists that its content moderation is based on the standards of the FCC and the Supreme Court of the United States:

Of course, that's nonsensical. The FCC's regulations on speech do not apply to the internet, but just to broadcast television and radio over public spectrum. And, of course, the Supreme Court's well-established parameters for 1st Amendment protected speech have been laid out pretty directly over the last century or so, but the way this is written they make it sound like any content to be moderated on Parler will first be reviewed by the Supreme Court, and that's not how any of this works. Indeed, under Supreme Court precedent, very little speech is outside of the 1st Amendment these days, and we pointed out that Parler's terms of service did not reflect much understanding of the nuances of Supreme Court jurisprudence on the 1st Amendment. Rather, it appeared to demonstrate the level of knowledge of a 20-something tech bro skimming a Wikipedia article about exceptions to the 1st Amendment and just grabbing the section headings without bothering to read the details (or talk to a 1st Amendment lawyer).

Besides, as we pointed out, Parler's terms of service allow them to ban users or content for any reason whatsoever -- suggesting they didn't have much conviction behind their "we only moderate based on the FCC and the Supreme Court." Elsewhere, Parler's CEO says that "if you can say it on the street of New York, you can say it on Parler." Or this nugget of nonsense:

“They can make any claim they’d like, but they’re going to be met with a lot of commenters, a lot of people who are going to disagree with them,” Matze said. “That’s how society works, right? If you make a claim, people are going to come and fact check you organically.”

“You don’t need an editorial board of experts to determine what’s true and what’s not,” he added. “The First Amendment was given to us so that we could all talk about issues, not have a single point of authority to determine what is correct and what’s not.”

Ah.

So, anyway, on Monday, we noted that Parler was actually banning a ton of users for a wide variety of reasons -- most of which could be labeled simply as "trolling Parler." People were going on to Parler to see what it would take to get themselves banned. This is trolling. And Parler banned a bunch of them. That resulted in Parler's CEO, John Matze, putting out a statement about other things that are banned on Parler:

This is how the Parler CEO describes their content policies pic.twitter.com/fiPnNCpxgd

— Cristiano Lima (@viaCristiano) June 30, 2020

If you can't read that, here's what he says, with some annotations:

To the people complaining on Twitter about being banned on Parler. Please pay heed:

Literally no one is "complaining" about being banned on Parler. They're mocking Parler for not living up to it's pretend goals of only banning you for speech outside of 1st Amendment protections.

Here are the very few basic rules we need you to follow on Parler. If these are not to your liking, we apologize, but we will enforce:

Good for you. It's important to recognize -- just as we said -- that any website that hosts 3rd party content will eventually have to come up with some plan to enforce some level of content moderation. You claimed you wouldn't do that. Indeed, just days earlier you had said that people could "make any claim they'd like" and also that you were going to follow the Supreme Court's limits on the 1st Amendment, not your own content moderation rules.

When you disagree with someone, posting pictures of your fecal matter in the comment section WILL NOT BE TOLERATED

So, a couple thoughts on this. First of all, I get that Matze is trying to be funny here, but this is not that. All it really does is suggest that he's been owned by a bunch of trolls posting shit pics. Also, um, contractually, this seems to mean it's okay to post pictures of other people's fecal matter. Might want to have a lawyer review this shit, John.

Also, more importantly, I've spent a few hours digging through Supreme Court precedents regarding the 1st Amendment and I've failed to find the ruling that says that posting a picture of your shit violates the 1st Amendment. I mean, I get that it's not nice. But, I was assured by Parler that it was ruled by Supreme Court precedent.

Your Username cannot be obscene like "CumDumpster"

Again, my litany of legal scholars failed to turn up the Supreme Court precedent on this.

No pornography. Doesn't matter who, what, where, when, or in what realm.

Thing is, most pornography is very much protected under the 1st Amendment as interpreted by the Supreme Court of the United States. So again, we see that Parler's rules are not as initially stated.

We will not allow you to spam other people trying to speak, with unrelated comments like "Fuck you" in every comment. It's stupid. It's pointless, Grow up.

I agree that it's stupid and that people should grow up, but this is the kind of thing that every other internet platform either recognizes from the beginning or learns really quickly: you're going to have some immature trolls show up and you need to figure out how you want to deal with them. But those spammers' and trolls' speech is, again (I feel like I'm repeating myself) very much protected by the 1st Amendment.

You cannot threaten to kill anyone in the comment section. Sorry, never ever going to be okay.

Again, this is very context dependent, and, despite Matze saying that he won't employ any of those annoying "experts" to determine what is and what is not allowed, figuring out what is a "true threat" under the Supreme Court's precedent usually requires at least some experts who understand how true threats actually work.

But, honestly, this whole thing is reminiscent of any other website that hosts 3rd party content learning about content moderation. It's just that in Parler's case, because it called attention to the claims that it would not moderate, it's having to go through the learning curve in record time. Remember, in the early days, Twitter called itself "the free speech wing of the free speech party." And then it started filling with spam, abuse, and harassment. And terrorists. And things got tricky. Or, Facebook. As its first content policy person, Dave Willner, said at a conference a few years ago, Facebook's original content moderation policy was "does it make us feel icky?" And if it did, it got taken down. But that doesn't work.

And, of course, as these platforms became bigger and more powerful, the challenges became thornier and more and more complicated. A few years ago, Breitbart went on an extended rampage because Google had created an internal document struggling over the biggest issues in content moderation, in which it included a line about "the good censor". For months afterwards, all of the Trumpist/Breitbart crew was screaming about "the good censor" and how tech believed its job was to censor conservatives (which is not what the document actually said). It was just an analysis of all the varied challenges in content moderation, and how to set up policies that are fair and reasonable.

Parler seems to be going through this growth process in the course of about a week. First it was "hey free speech for everyone." Then they suddenly start realizing that that doesn't actually work -- especially when people start trolling you. So, they start ad libbing. Right now, Parler's policy seems more akin to Facebook's "does it make us feel icky" standard, though tuned more towards its current base: so "does upset the Trumpists who are now celebrating the platform." That's a policy. It's not "we only moderate based on the 1st Amendment." And it's not "free speech supportive." It's also not scaleable.

So people get banned and perhaps for good reason. Here's the single message that got Ed Bott banned:

I don't see how that violates any of the so far stated rules of Parler, but it's violating one of the many unwritten rules: Parler doesn't like it if you make fun of Parler. Which is that company's choice of course. I will note, just in passing, that that is significantly more restrictive than Twitter, which has tons of people mocking Twitter every damn day, and I've yet to hear of a single case of anyone being banned from Twitter for mocking Twitter. Honestly, if you were to compare the two sites, one could make a very strong case that Twitter is way more willing to host speech than Parler is considering its current policies.

Should Parler ever actually grow bigger, it might follow the path of every other social media platform out there and institute more thorough rules, policies, and procedures regarding content moderation. But, of course, that makes it just like every other social media platform out there, though it might draw the lines differently. And, as I've said through all these posts (contrary to the attacks that have been launched at me the last few days), I'm very happy that Parler exists. I want there to be more competition to today's social media sites. I want there to be more experimentation. And I'm truly hopeful that some of them succeed. That's how innovation works.

I just don't like it when they're totally hypocritical. Indeed, it seems that Parler's CEO Matze has now decided that rather than being supportive of the 1st Amendment, and rather than being supportive of what you can say on a NY street (say, in a protest of police brutality), anyone who supports Antifa is not allowed on Parler:

I'm not quite clear on what Parler policy (or 1st Amendment exception) "Antifa supporter" falls under, but hey, I don't make the rules.

In the meantime, it's been fun to watch Parler's small group of rabid supporters try to continue to justify the site's misleading claims. A bunch keep screaming at me the falsehood that Parler supports any 1st Amendment protected free speech. Others insist that "of course" that doesn't apply to assholes (the famed "asshole corollary" to Supreme Court 1A doctrine, I guess). But, honestly, my favorite was this former Fox News reporter who now writes for Mediaite -- who spent a couple days insisting that everyone making fun of Parler's hypocrisy were somehow "mad" at being kicked off Parler -- who decided to just straight up say that Parler is good because it does the right kind of banning. You see, Parler is the good censor:

And, thus, we're right back to "the good censor." Except that when the Google document used that phrase, it used it to discuss the impossible tradeoffs of moderation, not to embrace the role. Yet here, a Parler fan is embracing this role that is entirely opposite of the site's public statements. Somehow, I get the feeling that the Breitbart/Trumpist crew isn't going to react the same way to Parler becoming "the good censor" as it did to a Google document that just highlighted the impossible challenges of content moderation.

And, look, if Parler had come out and said that from the beginning, cool. That's a choice. No one would be pointing out any hypocrisy if they just said that they wanted to create a safe space for aggrieved Trump fans. Instead, the site is trying to have it both ways: still claiming it's supportive of 1st Amendment rules, while simultaneously ramping up its somewhat arbitrary banning process. Of course, what's hilarious is that many of its supporters keep insisting that their real complaint with Twitter is that its content moderation is "arbitrary" or "unevenly applied." The fact that the same thing is now true of Parler seems blocked from entering their brains by the great cosmic cognitive dissonance shield.

The only issue that people are pointing out is that Parler shouldn't have been so cavalier in hanging its entire identity on "we don't moderate, except as required by law." And hopefully it's a lesson to other platforms as well. Content moderation happens. You can't avoid it. Pretending that you can brush it off with vague platitudes about free speech doesn't work. And it's better to understand that from the beginning rather than look as foolish as Parler just as everyone's attention turns your way.

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[l] at 7/1/20 11:38am

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[l] at 7/1/20 10:23am

One of the most frustrating lines that we hear from people criticizing internet website content moderation is the idea that thanks to Section 230 of the Communications Decency Act, websites have no incentive to do any moderation. This is a myth that I consider to be the flip side of the claims by aggrieved conservatives insisting that Section 230 requires "no bias" in moderation decisions. The "no incentive" people are (often lawyers) complaining about too little moderation. For reasons I cannot comprehend, they seem to think that the only motivation for doing anything is if the law requires you to do it. We've tried to debunk this notion multiple times, and yet it comes up again and again. Just a couple weeks ago in a panel about Section 230, a former top Hollywood lobbyist trotted it out.

I've been thinking about that line a bunch over the past few days as a huge number of large companies began pulling ads from Facebook as part of a "Stop Hate for Profit" campaign put together by a bunch of non-profits.

Over 200 companies have said they've joined the campaign and pulled their Facebook ads, including some big names, like Unilever, Verizon, Hershey, The North Face, Clorox, Starbucks, Reebok, Pfizer, Microsoft, Levi's, HP, Honda, Ford, Coca Cola and many, many more. Now, the cynical take on this is that with the current economic conditions and a global pandemic, many were looking to pull back on advertising anyway, and joining this campaign was a way to do so and get a bit of an earned media boost at the same time.

But many of the companies are putting out statements demanding that Facebook change its practices before they'll bring back ads. Here's an open letter from Levi's:

As we near the U.S. election in November and double down on our own efforts to expand voter education and turnout, we are asking Facebook to commit to decisive change. Specifically, we want to see meaningful progress towards ending the amplification of misinformation and hate speech and better addressing of political advertisements and content that contributes to voter suppression. While we appreciate that Facebook announced some steps in this direction today – it’s simply not enough.

That’s why we are joining the #StopHateForProfit campaign, pausing all paid Facebook and Instagram advertising globally and across all our brands to “hit pause on hate.” We will suspend advertising at least through the end of July. When we re-engage will depend on Facebook’s response.

I'm not convinced this campaign is necessarily a good idea, but at the very least it should put an end to people -- especially prominent experts -- claiming that there is "no incentive" for sites to do a better job with their content moderation practices. There are always non-legal incentives, including keeping users happy -- and also keeping advertisers happy.

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[l] at 7/1/20 7:25am

While it required some nudging, major US ISPs announced last March they would be suspending their usage caps and overage fees for 90 days as millions of Americans hunkered down to slow the spread of COVID-19. They also struck an entirely voluntary deal with the FCC to not kick users offline during this period for nonpayment due to financial hardship, though given the fecklessness of the captured Trump FCC, many ISPs ignored these promises and saw no penalty for it.

Despite the fact that the pandemic is seeing explosive growth across most of the U.S. and financial hardship for many won't be ending anytime soon, most ISPs will begin imposing usage caps and surcharges again starting in July:

"Major Internet service providers are scheduled to end their quarantine benefits soon, once again subjecting Americans to data caps and removing protections if they are unable to pay their bills."

The FCC, so far, has made no comment on whether the hiatus on disconnections, late fees, and usage caps will be extended.

The problem with usage caps in particular is that they're not technically or financially necessary in the first place. They're little more than price hikes on captive customers in uncompetitive markets, and claims they were necessary due to congestion were debunked long ago. They're not even helpful as a price differentiator, given that speed tiers and business class-tiers already perform that function.

ISPs crowed repeatedly about their networks performing incredibly well despite caps being suspended. Such limits routinely confuse customers, and the limits can be abused to give incumbent ISPs an unfair advantage in the streaming wars. In short, broadband usage caps are bullshit, and should be eliminated permanently.

Extending a hiatus on all late fees and disconnections is a thornier issue, given many smaller ISPs can't afford to carry the debt for customer nonpayment indefinitely. That said, giant ISPs like Comcast and AT&T not only enjoy natural monopolies that result in sky high prices, they have received billions in subsidies, tax breaks, and regulatory favors during the Trump administration. As such the idea that not kicking struggling users offline during an historic crisis for another 3-6 months is some kind of extreme burden for them is laughable. AT&T received a $42 billion windfall from the Trump tax cuts alone.

It's entirely possible that ISPs have to once again buckle to public outrage and announce an extension. Especially given the COVID-19 flare ups occurring in Florida, Texas, and California, and the chain of looming financial headaches (missed rent payments, the end of federal unemployment and stimulus assistance). But it's also possible so much is going on that ISPs will be able to quickly revert to imposing arbitrary, unnecessary, and punitive surcharges thanks to feckless regulators and geographical monopolies, neither of which US "leaders" want to do much about.

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[l] at 7/1/20 4:23am

California law says all police training materials must be published "conspicuously" on its Peace Officers Standards and Training (POST) website. This is part of the reforms to public records law that finally allowed the public to have access to law enforcement records related to misconduct and use-of-force. This is the law a bunch of cops sued over, as well as a bunch of journalists and activists. The former group is still trying to argue they shouldn't have to fully comply with the law. The latter is arguing cops aren't fully complying with this law.

But there's a federal law getting in the way of public access, as Dave Maass and Naomi Gilens report for the EFF. Unsurprisingly, it's a law we've seen abused time and time again to restrict access to all sorts of things.

[I]f you visit POST’s Open Data hub and try to download the officer training materials relating to face recognition technology or automated license plate readers (ALPRs), or the California Peace Officers Association’s course on use of force, you will receive only a Word document with a single sentence:

The course presenter has claimed copyright for the expanded course outline.

Here's a link to the state's single automated license plate reader document.

And here's what it looks like when you open the document:

The EFF has called bullshit, pointing out copyright law doesn't forbid the public from obtaining copies of documents created by private companies for government agencies. In fact, the EFF has already done this and the "course preventer" never went after it or the state of California for copyright infringement.

This is unlawful, and unacceptable, EFF told POST in a letter submitted today. Under the new California law, SB 978, POST must post law enforcement training materials online if the materials would be available to the public under the California Public Records Act. Copyrighted material is available to the public under the California Public Records Act—in fact, EFF obtained a full, unredacted copy of POST’s ALPR training through a records request just last year.

The abuse of copyright law by the companies providing training is stupid. The state's refusal to publish anything more than course OUTLINES is both inexplicable and infuriating. The law says everything is supposed to be published, not just limited overviews of course materials.

Commencing January 1, 2020, the Commission on Peace Officer Standards and Training and each local law enforcement agency shall conspicuously post on their Internet Web sites all current standards, policies, practices, operating procedures, and education and training materials that would otherwise be available to the public if a request was made pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code).

As the EFF has demonstrated, it can obtain the full course on ALPRs with a public records request. Obviously, this means POST is obligated to make the same course available in full via its web portal. But it hasn't. It has only provided an outline of the training. And the company behind the training, Vigilant Systems, has made the bogus claim that the copyright on its training course supersedes POST's obligations under California law.

The new law was supposed to increase transparency. POST has apparently decided private companies can decide how much transparency is appropriate. And whatever private companies won't remove from public view with bogus copyright claims will be hidden from public view by POST itself, since it's seemingly unwilling to follow the letter of the law, much less the spirit.

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[l] at 6/30/20 9:07pm

Back in 2018, we wrote about the Consorzio di Tutela della Denominazione di Origine Controllata Prosecco, heretofore called only "The Prosecco People" to save my brain, opposing the trademark for a pet treats company over its branded doggy drink "Pawsecco." The EU IPO, in one of the most bizarre trademark rulings I've ever seen, acknowledged that there was almost no chance for any actual customer confusion over the use of "Pawsecco", but found in favor of The Prosecco People anyway, strictly because Prosecco was a well-known thing, and Woof and Brew's pun was referencing a well-known thing. That is simply not the purpose of trademark law. The entire idea is that the public shouldn't be confused in a given market of goods as to the origin of competing products. Pet drinks and Italian knockoffs of champagne seem fairly distinct in the marketplace.

As do alcoholic and non-alcoholic drinks, for that matter, and yet here come The Prosecco People again. This time, they are going after a French wine group that created a non-alcoholic sparkling grape drink and named it "Nosecco."

A French wine group is challenging a decision that its non-alcoholic Nosecco brand unlawfully evoked the protected Italian category Prosecco. Les Grands Chais de France said the name wasn’t meant to rival Prosecco in the U.K., but rather to highlight the lack of alcohol and the sweetness of its own version.

“It’s emphatically saying ‘no’. No to alcohol, it’s no to being dry.” said Denise McFarland, a lawyer for the French group. “It sits there in gold and black,” on the label, she said Friday.

Here we'll have to see just how and when British courts will break from EU precedent given the whole Brexit thing. But, if EU precedent still holds, it feels virtually impossible for the Nosecco people to win over The Prosecco People in this case. If pet drinks aren't distinct enough from alcohol to stave off trademark opposition, non-alcoholic human drinks probably don't stand a chance.

And, yet, you'd have to expect that ruling to carry the same admission over a lack of consumer confusion. After all, the whole point of the Nosecco name is to give a nod towards Prosecco while creating the distinction of the lack of alcohol. Prosecco, mind you, isn't really a brand in and of itself. It's a drink type, like Champagne. That it has protected status in the EU at all is fairly silly, but it's still the case that Nosecco doesn't compete with a single brand, but rather a loose consortium of Prosecco producers.

Even The Prosecco People are pointing to the idea that Nosecco brings "to mind" Prosecco.

The Italian producers said in a legal filing it was “abundantly clear” that the Nosecco brand brought to mind their own wine, which is protected by European Union rules on origin.

Well, yeah. That's the entire point. Sort of like how the entire point of trademark law is to protect from customer confusion, which almost certainly doesn't exist in this case. It would be nice if the courts could keep that in mind this go-round.

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[l] at 6/30/20 4:33pm

Do you have a bit of time? I'd suggest, before digging in here, that you get yourself a nice cup of something warm, and maybe a little snack to go with it. Because there's a lot to read here, and you're not going to want to stop. It goes on for quite a while, but it's all worth it. Every bit of it.

We've written a bunch about copyright trolling lawyer Richard Liebowitz and his long history of having judges yell at and issue monetary sanctions on him, and I'd repeat some examples and link back to them (though you can just click on the link above and see all our stories about him) but why go through all that work when Judge Jesse Furman in the Southern District of NY helpfully has done it for us in his latest opinion involving a Richard Liebowitz case. Let me just say, that when a judge's opinion opens this way, it's (1) going to be a fun read (2) except if your Richard Liebowitz (and his clients).

Richard Liebowitz, who passed the bar in 2015, started filing copyright cases in this District in 2017. Since that time, he has filed more cases in this District than any other lawyer: at last count, about 1,280; he has filed approximately the same number in other districts. In that same period, he has earned another dubious distinction: He has become one of the most frequently sanctioned lawyers, if not the most frequently sanctioned lawyer, in the District. Judges in this District and elsewhere have spent untold hours addressing Mr. Liebowitz’s misconduct, which includes repeated violations of court orders and outright dishonesty, sometimes under oath. He has been called “a copyright troll,” McDermott v. Monday Monday, LLC, No. 17-CV-9230 (DLC), 2018 U.S. Dist. LEXIS 184049, at *9-10 (S.D.N.Y. Oct. 26, 2018); “a clear and present danger to the fair and efficient administration of justice,” Mondragon v. Nosrak LLC, No. 19-CV-1437 (CMA) (NRN), 2020 WL 2395641, at *1, *13 (D. Colo. May 11, 2020); a “legal lamprey[],” Ward v. Consequence Holdings, Inc., No. 18-CV-1734 (NJR), 2020 WL 2219070, at *4 (S.D. Ill. May 7, 2020); and an “example of the worst kind of lawyering,” id. at *3. In scores of cases, he has been repeatedly chastised, warned, ordered to complete ethics courses, fined, and even referred to the Grievance Committee. And but for his penchant for voluntarily dismissing cases upon getting into hot water, the list of cases detailing his misconduct — set forth in an Appendix here — would undoubtedly be longer.

Yeah. That opening does not bode well for Liebowitz. And what seems to confuse both me and Judge Furman is why the fuck does Liebowitz continue to do the same damn thing over and over again, pissing off judges. Especially when he's before a judge who has already called him out, you'd think that young Richard would be extra careful. But that does not appear to be within the skill set of Richard Liebowitz.

One might think that a lawyer with this record would tread carefully, particularly before a judge who had recently sanctioned him. See Rice v. NBCUniversal Media, LLC, No. 19-CV-447 (JMF), 2019 WL 3000808, at *4 (S.D.N.Y. July 10, 2019). But — as this case makes clear — not Mr. Liebowitz. In November of last year, Mr. Liebowitz appeared, in the company of a criminal defense lawyer, before another judge on this Court after being held in contempt for repeatedly lying, including under oath, about the date his own grandfather had died to justify his failure to attend a court conference. See Berger v. Imagina Consulting, Inc., No. 18-CV-8956 (CS), ECF No. 62 (S.D.N.Y. Nov. 13, 2019) (“Berger Tr.”). The very next day, he appeared before the undersigned and — despite an explicit warning to be “very, very, very careful about the representations” he made in court — lied about his compliance with a court Order that had required an in-person mediation. See ECF No. 50 (“Initial Conf. Tr.”), at 7. Making matters worse, Mr. Liebowitz then repeated that lie, over and over, and ultimately under oath during an evidentiary hearing. On top of that, he violated at least six court Orders. And to cap it off, defense counsel discovered only after incurring the expenses of litigating the case that the Complaint Mr. Liebowitz prepared and filed contained a false allegation — namely, that the photograph at issue in this case had previously been registered with the Copyright Office — that would have required dismissal of the lawsuit at its inception.

That's the second paragraph of the opinion. As for where all of this is heading, I'll cut to the chase: Judge Furman is sanctioning Liebowitz. And more.

For the reasons stated below, the Court concludes that sanctions are amply justified, indeed all but required, and orders a mix of substantial monetary and non-monetary sanctions against Mr. Liebowitz and his firm. The Court also refers Mr. Liebowitz to the Court’s Grievance Committee to evaluate whether he should be allowed to continue practicing law in this District.

As for the specifics of what went wrong in this specific case, it's yet another example of Liebowitz doing the Liebowitz thing, which is basically not paying attention to any of the details or requirements involved in practicing law in this manner, and misrepresenting a variety of things to both the court and his client. It's... not good. This case, like the others, is a copyright trolling case, on behalf of a photographer, Arthur Usherson, claiming that an artist management firm, Bandshell, had infringed on a Usherson photo of musician Leon Redborne on its website. The court pushed the case into a mediation program to see if a settlement could be reached without having to waste everyone's time and money. The order for mediation was pretty straightforward, and told the parties to conduct a mediation effort before September 26, 2019. Liebowitz was also told to file proof of service of the complaint as well as some details on the licensing of the photograph. Guess how well he did in following these instructions?

Mr. Liebowitz failed to comply with these mandates. First, although the summons and Complaint were served on Bandshell on September 5, 2019, Mr. Liebowitz did not file proof of that service until September 21, 2019. ECF No. 7. Second, he failed to produce the required discovery by September 19, 2019, fourteen days after service was made. When defense counsel followed up about the missing discovery, Mr. Liebowitz responded on September 20, 2019: “My client is still looking but as of now doesn’t look like any licensing for this photo.” ECF No. 16, at 12. Finally, Mr. Liebowitz failed to participate in mediation by September 26, 2019, two weeks before the initial pretrial conference originally scheduled for October 10, 2019. Instead, more than a week after the deadline passed, Mr. Liebowitz filed a letter in which he suggested that the mediation had not taken place because of a failure on the part of the Mediation Office to assign a mediator. See ECF No. 12. In the same letter, Mr. Liebowitz requested leave to hold a telephonic mediation on October 8, 2019, or an extension of the mediation deadline and adjournment of the initial pretrial conference.

Judge Furman, at this point, pointed out that Liebowitz blaming the Mediation Office for his own failures was not a good look, but gave him a chance to make it right. Let's see how that all went:

In an Order dated October 7, 2019, the Court admonished Mr. Liebowitz for unfairly trying to place blame on the Mediation Office for his own failure to meet the mediation deadline.... The Court nevertheless concluded that “early mediation in the normal course (i.e., in person) makes sense.”... Accordingly, the Court adjourned the initial pretrial conference to November 14, 2019, and ordered, in no uncertain terms, that “[t]he parties shall conduct the in-person mediation no later than October 31, 2019.” ... In an email exchange later that day, Bandshell’s counsel, Brad Newberg, asked Mr. Liebowitz “if any of October 11, 16, 28 or 31 work for the [sic] both of you and Mr. Usherson.” ... Mr. Liebowitz responded that “October 31st at 12pm works.” ... The mediator (the “Mediator”) — a member of this Court’s mediation panel, but recruited by Mr. Liebowitz himself to mediate this particular case — approved the date and scheduled the mediation....

On October 31, 2019, however, neither Mr. Liebowitz nor Mr. Usherson showed up at the mediation. Instead, Mr. Liebowitz sent two associates — James Freeman and Rebecca Liebowitz (Mr. Liebowitz’s sister)... Neither had entered an appearance in this case. In fact, Mr. Liebowitz did not even tell Mr. Freeman about “the existence of this matter” until “about 8:00 p.m. on October 30, 2019,” the night before the mediation.... Ms. Liebowitz, moreover, was a “newly admitted” lawyer who was attending only “to ‘shadow’ Mr. Freeman and learn from the process.” ... Mr. Freeman and Ms. Liebowitz spoke briefly with Mr. Newberg and Bandshell’s principal, who did attend in person, but no settlement was reached. The Mediator later attributed the failure to reach an agreement in part to “the lack of personal appearance[s]” by Mr. Liebowitz and Mr. Usherson.

Yikes! At that point, Bandshell, reasonably requested sanctions against Liebowitz. Now, if you were a betting person, would you think that Liebowitz apologized and promised to do better? Or that he kept digging. Oh, you guessed it right, didn't you? Because you know where this is going:

In response, Mr. Liebowitz asserted — repeatedly — that he and Mr. Usherson had received approval in advance from the Mediator not to appear at the mediation in person. Mr. Liebowitz made this claim first in a joint letter filed shortly before the initial pretrial conference.... In that letter, Mr. Liebowitz claimed that the Mediator had “indicated that Plaintiff was permitted to appear telephonically under Rule 9F of the mediation program.”... Notably, in the same section of the letter, Bandshell responded that “virtually everything in Plaintiff’s statement is false, and Defendant’s counsel has warned Plaintiff against filing a false statement regarding the scheduled mediation with the Court.”...

Mr. Liebowitz doubled down in his next submission: his initial “response” to the sanctions motion, which took the form of a three-page letter (in violation of Local Rule 7.1, which requires that, with limited exceptions inapplicable here, opposition to a motion must be in the form of a memorandum of law).... To the extent relevant here, Mr. Liebowitz asserted in that letter that “[n]othing in the Court order or mediation rules states that lead counsel needs to attend the mediation.” ... Rule 9(c) of the Mediation Program’s Procedures, however, provides explicitly that “[e]ach represented party must be accompanied at mediation by the lawyer who will be primarily responsible for handling the trial of the matter.” Rule 9(c), Procedures of the S.D.N.Y. Mediation Program (Dec. 26, 2018) (“Mediation Rules”).... More significantly for present purposes, Mr. Liebowitz represented that Mr. Usherson had “obtained permission from the assigned mediator . . . to appear at the scheduled mediation by telephone provided that counsel was present in person.” ... (citing Rule 9(f) of the Mediation Rules, which allows “a party” who resides “more than 100 miles from the Courthouse” to participate in a mediation by telephone with the advance approval of the mediator). He further claimed that he had “told [the Mediator] that an associate of Liebowitz Law Firm with knowledge of the facts of the case would appear in-person, and [the Mediator] consented.”

The Judge then points out that this all happened about the same time that Liebowitz was dealing with a situation in another courtroom in the same court having to do with lying about the death of his grandfather to explain his failings in another case. Right after the judge in that case had dressed down Liebowitz and told him to shape up was when this new hearing happened, and Judge Furman was well aware of the situation:

The very next day, appearing at the initial pretrial conference in this case, Mr. Liebowitz claimed that he had sought permission from the Mediator for Mr. Usherson, who lives in Georgia, to appear telephonically at the October 31, 2019 mediation and that the Mediator had “said yes.” Initial Conf. Tr. 6-7. Aware of the proceedings before Judge Seibel, the Court then stopped Mr. Liebowitz and warned him: “I want to caution you that you’re already in a lot of hot water in this Court, and I think you know that. In that regard, I would be very, very, very careful about the representations you make to me. If you prefer to let Mr. Freeman do the speaking, that is one thing, although they are still representations on your behalf.” Id. at 7. The Court then asked when Mr. Liebowitz had advised the Mediator that Mr. Usherson was not going to appear in person at the mediation, and the following colloquy occurred:

Mr. Liebowitz: I don’t know the exact date, but it was before the mediation, and he said yes.
The Court: [By] what means did you do that?
Mr. Liebowitz: It was telephone.
The Court: And you personally advised him?
Mr. Liebowitz: I personally.
The Court: And he said that was okay?
Mr. Liebowitz: He said that was okay.

It's at this moment that things go from bad to worse. The lawyer for the other side points out that Liebowitz filed the lawsuit... over a photograph that did not appear to be registered before the lawsuit was filed -- something the Supreme Court said you cannot do.

Mr. Newberg advised that, the day before the initial conference, he had “discovered that after this case was filed, Mr. Usherson filed a copyright registration, which . . . seems to be on these photographs, so now it is unclear whether the registration in the complaint actually does cover the photograph or if it is the new copyright registration.” Initial Conf. Tr. 17. Recognizing that the case would have to be dismissed if the Photograph had not been registered before the Complaint was filed, Mr. Newberg requested “discovery purely on those aspects early.” Id. Mr. Liebowitz responded: “I don’t know what defense counsel means about other registrations or other photographs. I will have to see what my office did, but this is the correct registration.” Id. at 17-18. Mr. Liebowitz argued against limited discovery or early summary judgment on the registration issue, stating that “the appropriate thing to do at this stage is to just set discovery, set the dates, and let the parties engage and hopefully during that process the parties could eventually get to a settlement number.”

You'd think, at this point, that any reasonable person would recognize that he was in trouble. But this is Richard Liebowitz we're talking about. And so, he did what he does... and made things worse:

Following the initial pretrial conference, the Court ordered Mr. Liebowitz to file a formal opposition to the motion for sanctions and directed both sides to address “whether the court should hold an evidentiary hearing and, if so, what witnesses should be called and how it should be conducted.” ... Mr. Liebowitz filed a formal opposition, but — disregarding the Court’s Order — he failed to address the evidentiary hearing.... Instead, he doubled down again (quadrupled down, perhaps) on his claim that Mr. Usherson had “obtained permission from the assigned mediator . . . to appear at the scheduled mediation by telephone provided that counsel was present in person” and that the Mediator had “consented to” Mr. Liebowitz’s associate appearing instead of Mr. Liebowitz.... In support of his opposition, Mr. Liebowitz submitted a declaration, in which he stated “under penalty of perjury” that “I sought and received approval from . . . the assigned mediator for Mr. Usherson to attend the mediation via telephone and for my associate James Freeman to appear who had full knowledge of the case. I obtained [the Mediator’s] consent via telephone.”

That paragraph above is foreshadowing. Can you guess where this is heading? Of course you can...

Mr. Newberg took issue with Mr. Liebowitz’s claims that he had secured advance approval from the Mediator for Mr. Usherson not to appear in person at the mediation and Mr. Freeman to attend on Mr. Liebowitz’s behalf, citing emails showing that, “even as late as October 30” — the night before the mediation — the Mediator and Mr. Newberg “were under the impression that Mr. Liebowitz (as lead and only admitted counsel) and Mr. Usherson would be at the mediation in person.”... Mr. Newberg noted that, because he was “concerned at what appeared to be false statements being made to the Court by Mr. Liebowitz,” he called the Mediator on November 19, 2019.... According to Mr. Newberg, the Mediator said that there had been “other mediations where he allowed Mr. Liebowitz’s client to appear by phone, but he stated clearly and pointedly . . . that this was not one of them.” (emphasis in original). The Mediator allegedly also said that, on “the night of October 30,” Mr. Liebowitz had “called and informed him (without asking for approval) that Mr. Liebowitz was out of town and that Mr. Liebowitz’s associate would be at the mediation instead.”... In that call, “no mention was made of Mr. Usherson at all.” ... The Mediator “only found out that Mr. Usherson would not be at the mediation” at the mediation itself.

The Judge found this interesting, and asked the Mediator to weigh in directly. You'll never guess what the Mediator said. Oh, what am I talking about? Of course you know what the mediator said. It's why you're still reading this:

The next day, the Mediator submitted a declaration, which stated that, on October 30, 2019, he had “talked to Mr. Liebowitz and was informed that the mediation was on. He did not inform me that he would not personally appear but through an associate. But I have mediated a few prior mediations involving Mr. Liebowitz where on at least one occasion that office appeared by an associate without incident.”... The Mediator further stated: “At no time was I informed that the plaintiff would not personally appear but would be available by telephone. I should say that in a few prior mediations his client appeared by telephone without incident. On this occasion no discussion was had by me as to client appearance.”

So... Liebowitz lied to the court multiple times, after being warned to be careful not to lie to the court. Guess how he responded to being called out on this lie? Did he admit to error? Or did he triple down? Oh, you know. You know.

On December 16, 2019, Mr. Liebowitz filed a letter stating that he “contests certain statements proffered by the Mediator in his declaration.” ... Once again, Mr. Liebowitz asserted that he had “notified the Mediator that Mr. Usherson would be appearing telephonically and that such request was granted.” ... But the December 16th letter also proffered a new line of defense: that the Mediator in this case had a “custom and practice” of granting Mr. Liebowitz’s clients permission to appear telephonically at mediations.... Mr. Liebowitz cited five prior cases in which the Mediator had allegedly granted his clients permission to appear telephonically; in one of these five cases, he maintained, the Mediator also granted Mr. Liebowitz permission to send an associate on his behalf. ... Mr. Liebowitz insisted: “This . . . corroborates Mr. Liebowitz’s testimony and establishes a ‘pattern or practice’ of conduct showing that Mr. Liebowitz harbored a good faith belief that the requisite permissions were granted by the Mediator in this case.”

At this point, the Judge ordered the lawyers and the mediator to show up in his courtroom to discuss this in person. Finally realizing he might possibly be in trouble, Richard Liebowitz tried to do what so many copyright trolls try and do when in this position (though, frankly, Richard seems to realize that the time has come much later than most copyright trolls): he tried to cut and run:

On December 17, 2019, the Court issued an Order scheduling the hearing and directing Mr. Liebowitz, Mr. Newberg, and the Mediator to appear for testimony... Just two days later, Mr. Liebowitz filed a stipulation of voluntary dismissal signed by both parties, providing that the case “should be dismissed with prejudice with each side to bear its own costs and attorney’s fees.”

And, of course, even in that joint stipulation, Liebowitz was misleading, leading the other side's lawyer to feel the need to explain things to the court.

In a letter filed the same day, Mr. Newberg noted that Bandshell had stipulated to Mr. Usherson’s “withdr[awal of] the . . . case with prejudice,” but pointedly noted that he and his client “would not have so stipulated” had his firm “not been representing [Bandshell] pro bono.”

Given that, the judge did dismiss the underlying case, but not the original motion for sanctions from the defendant. That led to a hearing, with both sides and the mediator that went about as well as you would expect for a situation in which Liebowitz has to justify his actions. After first claiming that "it could well be that the mediator simply forgot that he" gave Liebowitz and his client permission to not show up to the mediation, things went even further off the rails:

On the subject of his communications with the Mediator in this case, Mr. Liebowitz claimed that, at about 7:30 to 8:00 p.m. on October 30, 2019, the night before the mediation, he had called the Mediator from Los Angeles, California, and asked for permission for Mr. Usherson to appear by telephone from Georgia and for Mr. Freeman to appear as counsel. ... Mr. Liebowitz testified that the Mediator had approved both requests. ... Mr. Liebowitz acknowledged that he had made no record of the call and, indeed, that there was “[n]othing in writing” at all reflecting that the call had occurred. ... When asked how he suddenly remembered that the telephone call had occurred on October 30th, when he could not remember the relevant date when asked at the November 14, 2019 initial pretrial conference (only two weeks after the events in question), Mr. Liebowitz responded that certain emails had jogged his memory — namely, emails that had been attached to Mr. Newberg’s initial declaration in support of the sanctions motion.... But Mr. Newberg’s initial declaration had been filed before the November 14th conference, and Mr. Liebowitz had actually responded to it in writing. (When pressed on that point, Mr. Liebowitz testified: “I often forget things.” )

I often forget things? That's going to convince the judge... And, of course, his forgetfulness seemed to work to his continuing disadvantage here as well.

More troubling, Mr. Liebowitz’s account is not supported by the email trail. At 6:34 p.m. on October 30, 2019, Mr. Newberg emailed a proposed settlement agreement to the Mediator, and stated that unless Mr. Usherson “sign[ed] the agreement” that night, “we will see Mr. Liebowitz and Mr. Usherson tomorrow . . . at the mediation.”... At 8:15 p.m., the Mediator replied: “Talked to Richard and he has been tied up. He will review tonight and get back to us in the morning. Hopefully we can settle this before need [sic] to go to in person mediation.”... Mr. Newberg responded: “I’m headed to the train station well before 6:00 am. And to be candid, I would have assumed Mr[.] Usherson either flew to NY tonight or is likewise on a very early plane.” ... The Mediator said simply, “I understand.” (email sent at 10:03 p.m.). In addition, at 4:12 a.m. on October 31, 2019, Mr. Liebowitz sent Mr. Newberg an email stating: “Attached please find revisions to the agreement which can be discussed at the mediation.”... Mr. Liebowitz did not mention that he and Mr. Usherson did not plan to attend, let alone that they had the Mediator’s permission not to attend.... At no point, in fact, did Mr. Liebowitz notify opposing counsel that he and Mr. Usherson would not be attending.

Ooops. Could it get worse? Oh, you know it could.

During Mr. Liebowitz’s testimony at the hearing, the Court asked him what he would have done had the Mediator denied his alleged requests on the night of October 30th.... Mr. Liebowitz claimed that he and Mr. Usherson would have attended the mediation the next day in person... But on the night of October 30th, Mr. Liebowitz was in Los Angeles hosting a “networking event” for photographers, and Mr. Usherson was at home in Georgia.... Mr. Liebowitz never booked any flights or checked when the last flight to New York from either location was.... Nevertheless, he claimed that he had been prepared to book flights and fly overnight.... hen pressed about whether he had communicated this alleged plan to Mr. Usherson, Mr. Liebowitz equivocated: “Well, if he — if he — if he didn’t have to appear in person, then — then I would have just called him that day and know that he’s always around.”... It is clear, therefore, that Mr. Liebowitz did not advise Mr. Usherson that he might need to jump on a plane at a moment’s notice and appear in New York. It follows that Mr. Liebowitz had no way of knowing whether Mr. Usherson could have complied if asked to do so.

Oh yeah, also, Liebowitz contradicted his own associate, who had shown up to "represent" him in this matter:

Notably, Mr. Liebowitz’s testimony was in tension, if not direct conflict, with the representations of his own associate, Mr. Freeman. For example, Mr. Liebowitz claimed that he had told Mr. Freeman on October 30th that the Mediator had approved Mr. Liebowitz’s requests. ... But at the initial pretrial conference, Mr. Freeman advised the Court that he had not known what “clearances” were given. ... When confronted with this discrepancy, Mr. Liebowitz responded: “[P]eople forget things.” ... Mr. Liebowitz also claimed that he had spoken with Mr. Freeman about the case on “numerous occasions” before October 30th. ... But, as noted, Mr. Freeman repeatedly confirmed that he did not even know about the “existence” of the case before October 30th — a representation that he had reiterated in his sworn declaration, ... which Mr. Liebowitz himself had filed and even cited in Mr. Usherson’s opposition brief... (Despite that, Mr. Liebowitz claimed that he had not read Mr. Freeman’s declaration before filing the brief. ... )

And worse:

Finally, to the extent relevant here, Mr. Liebowitz also took the position that he was never required to attend the mediation, as it was Mr. Freeman who was “the lawyer who will be primarily responsible for handling the trial of this matter.”... But Mr. Liebowitz acknowledged that Mr. Freeman had not even entered an appearance in this case and that he had never advised the Mediator or Mr. Newberg that Mr. Freeman was principal trial counsel. ... Moreover, he was forced to admit that the Court’s Order scheduling the initial pretrial conference had required “principal trial counsel” to attend “all pretrial conferences” and that he — not Mr. Freeman — had appeared on Mr. Usherson’s behalf at the initial pretrial conference. ... Similarly, Mr. Liebowitz claimed that Mr. Usherson was also never required to attend the mediation because, in Mr. Liebowitz’s view, the Court’s Order requiring “in-person” mediation referred only to the attorneys, “[n]ot parties.” ... When asked why, then, he had bothered to confirm that he and Mr. Usherson could be in New York on October 31st, and later asked the Mediator to excuse his and Mr. Usherson’s attendance, Mr. Liebowitz responded that he “wanted to double — double — you know, just cover myself.”

"He wanted to double -- double -- you know, just cover myself."

Remember, all of this is after he'd already been sanctioned multiple times for lying to the court. This is just two months after a different judge in the same courthouse had ordered him to get some professional training and warned him to stop this kind of thing. But he can't seem to help himself.

After that mess, there was still the matter of the bogus filing of the lawsuit over a photograph that didn't have a registered copyright. Of course, when the case was filed, Liebowitz claimed that it was registered, but (and, in case this is not clear, this is really, really bad) he was misrepresenting that to the court and used a registration on another photo -- and that they hadn't actually registered this one. Again, that's really bad. On top of all the other really bad stuff above.

Mr. Newberg revealed that he had just received the Copyright Office’s deposit files for the 046 Registration and confirmed that the Photograph was not in fact registered under that number. In response, Mr. Freeman admitted that it is the regular practice of the Liebowitz Law Firm to file copyright infringement cases without verifying that the works in question are properly registered, because of the “additional expense.”

Holy shit.

Mr. Freeman stated that “[t]he client will say to us, ‘This photograph is on deposit with this registration.’ And we take them for their word.” ... Mr. Freeman stated that, in this case, Mr. Usherson had “represented to us that he” had registered the Photograph.... Mr. Freeman further stated that, prior to filing the Complaint, the firm had checked on the Copyright Office’s website “that Mr. Usherson was the copyright claimant in that particular case.”

I mean, beyond all the other bad lawyering, what's described here is really bad lawyering. So, that left the judge to order both parties to address this issue, and guess how that worked out?

In his letter, Mr. Liebowitz admitted that “Paragraph 9 of the Complaint” was “inaccurate” because the Photograph was not, in fact, registered “as part of the 046 Registration.”... Mr. Liebowitz disclosed that his firm had registered the Photograph under registration number VAu 1-373-272 (the “272 Registration”), but not until August 22, 2019 — more than a month after the Complaint in this case was filed.... Mr. Liebowitz attributed the false statement in the Complaint to “clerical error,” noted that “administrative mistakes or clerical errors do happen in the copyright registration process,” and insisted that, but for dismissal of the case, Mr. Usherson could have cured the problem by amending the Complaint.

Sure, sure, clerical error. Happens all the time. But...

In Bandshell’s response, Mr. Newberg reminded the Court that, at the initial pretrial conference, Mr. Liebowitz had denied any knowledge of “other registrations or other photographs.”

Oh, right.

Mr. Newberg argued that Mr. Liebowitz’s new explanation thus “defie[d] belief.”

It does, but this is Richard Liebowitz we're talking about, so the bar is pretty low.

Mr. Newberg also pointed out that Mr. Liebowitz had incorrectly asserted that “the failure to obtain a registration prior to filing suit provides grounds to amend the complaint,”... , citing this Court’s decision in Malibu Media holding that premature filing necessitates dismissal.

So, the judge wasn't done yet. He then asked Liebowitz, the photographer Usherson, and the associate/Liebowitz's lawyer, to each give their sides of the "administrative mistake" story. And guess how that worked out?

In his declaration, Mr. Freeman admitted that the Photograph was registered by the Liebowitz Law Firm after the Complaint was filed but claimed that he had “no personal knowledge of this administrative mistake until after the January 8, 2020 hearing.” ... Mr. Freeman explained his representations at the close of the January 8th hearing by saying (not altogether convincingly) that he had been speaking based on his “general knowledge of [the Liebowitz Law Firm’s] custom and practices.” ... Mr. Usherson averred that he had “identifi[ed] the 046 Registration” when he “authorized Mr. Liebowitz to file a copyright infringement action.”... But Mr. Usherson also stated that, before the Complaint was filed, he had provided to the Liebowitz Law Firm a CD-ROM containing all of the photographs in the 046 Registration... The Photograph was not among them. Then, “[s]ometime after” the lawsuit was filed, Mr. Usherson provided the firm with a CD-ROM containing thirty additional photographs, including the Photograph, which the firm registered in the 272 Registration.

And last, and very most least, was Liebowitz's turn to try to dig himself out of the ditch he'd just kept digging. And, finally, he seemed to tell the truth and talk about how totally incompetent he was as a lawyer:

Finally, Mr. Liebowitz admitted that he had conducted no investigation into whether the Photograph was properly registered before filing the Complaint, even though he and his firm “had the ability as of June 2019 to double-check whether the Photograph was part of [the] images that were included on a CD-Rom that Mr. Usherson had previously sent.” ... Instead, Mr. Liebowitz relied solely on an entry in the firm’s internal case-tracking system, which noted that the Photograph was “associated with the 046 Registration.”... This entry was made by “a member of [the firm’s] administrative staff, Zachary Cuff.”... Mr. Liebowitz also stated that he had no role in filing the 272 Registration, which was performed by his firm’s “internal staff at the request of Mr. Cuff.” ... Mr. Liebowitz claimed that he did not realize the Photograph was not properly registered — which he described as a “technical pleading deficiency” — until “subsequent to the January 8, 2020 hearing.”

A technical deficiency? Yikes.

At some point this has to end, and it does with the Judge dropping the hammer:

Applying the foregoing standards here, the Court concludes that a range of substantial monetary and non-monetary sanctions against Mr. Liebowitz and his firm, including referral of Mr. Liebowitz to the Grievance Committee, are amply justified. Sanctions are appropriate for (1) Mr. Liebowitz’s repeated violations of the Court’s Orders; (2) Mr. Liebowitz’s repeated lies to the Court, including under oath, about whether the Mediator granted Mr. Usherson permission to participate in the mediation by telephone; and (3) the false allegation in the Complaint regarding registration of the Photograph and the failure to reasonably investigate the issue, both prior to filing suit and when put on notice about the issue during the litigation.

He then goes on to catalog, one by one, all of the things Liebowitz did which no lawyer should ever do. Friends, it goes on for 19 pages. There are three and a half pages detailing his "repeated violations of the court's orders." The court counts six such failures to follow court orders in this case alone. There are then eight and a half pages talking about Liebowitz's lies to the court. In the midst of discussing all of those, the judge notes that when called out on his lies in other cases, like this one, Liebowitz tries to cut and run:

In both cases, he tried — without success — to make his problems go away by voluntarily dismissing the case before sanctions were imposed. And in both cases, he ultimately sought to excuse his misconduct by invoking his relative youth and inexperience, his hefty caseload, and poor case management practices.

The Judge ain't buying it:

... while Mr. Liebowitz’s failures to obey court orders can arguably be explained (though not justified) by his relative inexperience, heavy caseload, and inadequate case management practices, the same cannot be said for his dishonesty.

And then we get this realization that Liebowitz seems to have a problem. And that problem is that he regularly lies under oath.

The simple fact is that Mr. Liebowitz has a problem: He does not feel constrained by the truth and, when cornered, has no compunction about lying, even under oath. It follows that sanctions should be, and are, imposed.

And then seven more pages, just about one particular lie: that the photograph was registered at the Copyright Office before the lawsuit was filed. Here, the judge notes that Liebowitz had gotten in trouble on this very issue before:

Finally, the evidence clearly and convincingly shows that Mr. Liebowitz brought — and maintained — this case in bad faith by willfully disregarding the fact that the case was fatally flawed from its inception. As noted, under Section 411(a) of the Copyright Act, an infringement action may not be filed “until . . . registration of the copyright claim has been made.” 17 U.S.C. § 411(a); see Rudkowski v. MIC Network, Inc., No. 17-CV-3647 (DAB), 2018 WL 1801307, at *3 (S.D.N.Y. Mar. 23, 2018) (warning Mr. Liebowitz that “possession of a registration certificate is a condition precedent to filing a copyright claim”). Paragraph 9 of the Complaint in this case did allege that the Photograph was registered as part of the 046 Registration. But in the face of irrefutable evidence to the contrary, Mr. Liebowitz now concedes — as he must — that that allegation was false and that the Photograph was not registered until August 22, 2019, almost a month and a half after the lawsuit was filed. Mr. Liebowitz has two responses to this extraordinary revelation. First, he seeks to trivialize it by calling it a “technical pleading deficiency” and suggesting that, but for the voluntary dismissal, he could have cured the problem by amending the Complaint.... Second, throwing his own client and a member of his administrative staff under the proverbial bus, he claims that he did not know about the untimely registration.... Neither response is persuasive

No. Neither response is persuasive at all. The Judge explains why the claim that this could be cured with an amended complaint is wrong, and notes that this wrongness was not just a mistake by Liebowitz but again part of the pattern you may have already noticed:

Notably, there is a strong argument that Mr. Liebowitz’s suggestion that he could have cured the defect through amendment is itself made in bad faith. First, it is hard to believe that he would be unaware of the recent law on that issue. His practice is devoted to copyright infringement cases; in little more than four years, he has filed approximately 2,500 such cases and, at the time of the mediation in this case, his firm had more than 400 such cases pending in federal court. ... But assuming for the sake of argument that Mr. Liebowitz does not keep up on developments in copyright law (which would be inexcusable, but is nevertheless all too plausible), he was explicitly put on notice of the fact that an untimely registration is not curable at the initial pretrial conference in this case, when Mr. Newberg first raised the issue and noted that dismissal would be required if the Photograph was registered after the Complaint was filed, citing Fourth Estate and this Court’s holding in Malibu Media that a premature filing “is a non-curable error.” ... Making matters even worse, Mr. Liebowitz persisted in pressing the point even after Mr. Newberg, in his post-hearing letter, explicitly noted that the suggestion was “incorrect,” citing Malibu Media and other precedent. ... These facts support an inference of bad faith

The court also does not look kindly on Liebowitz trying to blame others for this:

Mr. Liebowitz’s efforts to distance himself from responsibility for the untimely registration and the false allegation in the Complaint, and his attempt to pin blame on either his client or an administrative assistant at his firm, are similarly unavailing. For one thing, the evidence clearly and convincingly shows that Mr. Liebowitz did know about the untimely registration, at least as of August 22, 2019, when his firm registered the Photograph under the 272 Registration, if not earlier. Indeed, as Mr. Freeman explained at the January 8th hearing, the firm increasingly files copyright registration applications itself “[s]o we know for sure it’s on deposit.” And that is what happened here: Sometime after July 10, 2019, when the Complaint in this case was filed, Mr. Usherson sent the firm a CD-ROM containing all of the photographs that he had not yet registered — including the Photograph — and Mr. Liebowitz’s firm proceeded to register them.... The firm thus had knowledge that the Photograph had not been registered prior to the filing of the Complaint. And it is hard to believe that Mr. Liebowitz, as “lead counsel for Plaintiff” and the “founding member of Liebowitz Law Firm,”... was unaware of the fact himself. It is far more plausible — indeed likely — that, upon receiving the Photograph from Mr. Usherson, Mr. Liebowitz realized that it had not yet been registered and sought to quietly take care of the problem, hoping that Bandshell and the Court would be none the wiser and he would escape dismissal.

Indeed, the Judge points out that it's reasonable to infer that Liebowitz tried to get out of the case before all of this came to light:

It is no answer to say, as Mr. Liebowitz does, that he relied on his administrative assistant; Mr. Liebowitz is the lawyer who signed the Complaint containing the affirmatively false allegation. Making matters worse, Mr. Liebowitz and his firm received a second CD-ROM, which would have revealed that the Photograph was not among those registered as part of the 046 Registration, and the firm then registered the Photograph itself. And to top it off, at the initial pretrial conference in November 2019, Mr. Newberg specifically addressed the 272 Registration and raised doubts about whether the Photograph had been timely registered — putting Mr. Liebowitz on notice of what turns out to have been a fatal defect in the Complaint.... Under these circumstances, it was Mr. Liebowitz’s obligation to investigate whether the Photograph was properly registered.

Nevertheless, Mr. Liebowitz and his firm conducted no investigation until after the January 8, 2020 hearing and, even then, did so only because the Court ordered them to file a letter addressing the issue and, when that did not clear things up, declarations.... In fact, Mr. Liebowitz actively stonewalled Mr. Newberg’s request for discovery on the issue at the initial pretrial conference, stating: “I don’t know what defense counsel means about other registrations or other photographs. I will have to see what my office did, but this is the correct registration.”... It is hard to avoid the conclusion that Mr. Liebowitz hoped to settle the case before the truth came to light

It goes on. And on. And on. And the Judge points out that all of these mistakes have also shown up in other Liebowitz cases, so it's not like it's the first time he's been told about this stuff.

Finally, after 45 pages detailing what a terrible lawyer Liebowitz is, the Judge tries to figure out what sanctions are warranted. And he notes, that this is a special case:

If specific deterrence — that is, deterring Mr. Liebowitz from repeating his misconduct — were the sole consideration, it is not clear that any sanction (short of, perhaps, disbarment) would suffice. After all, his first lie in this case occurred only one day after he was dressed down by Judge Seibel for repeatedly lying about his grandfather’s death, and despite a warning from the Court to be “very, very, very careful” about what he said... And thereafter, as in the case before Judge Seibel, he dug his hole even deeper, repeating his lies over and over, including under oath. (In fact, he arguably expanded upon his lies, concocting, after the fact, his “custom and practice” excuse.) Even more troubling, as the discussion above makes clear, Mr. Liebowitz’s misconduct in this case is part of a larger pattern that has led judges on this court — and, as his practice has expanded to other districts, judges on other courts — to chastise him, impose sanctions on him, and require his clients to post bonds to cover future adverse awards of attorney’s fees and costs resulting from his misbehavior. The list of such cases is too long to cite here and, thus, is attached as an Appendix to this Opinion and Order. And even that list is likely not exhaustive. For one thing, there may well be orders imposing sanctions or requiring a bond that are not easily searchable on Westlaw or Lexis. For another, as this case, the case before Judge Seibel, and this Court’s prior decision imposing sanctions in Rice make clear, Mr. Liebowitz frequently drops his cases when the going gets tough and sanctions are on the horizon. ... Undoubtedly there are cases in which that tactic succeeded and Mr. Liebowitz was never held to account. Thus, there may be no sanction short of disbarment that would stop Mr. Liebowitz from further misconduct.

However, the Judge sadly notes, the court cannot disbar a lawyer. It can only send the issue to the Grievance Committee (which the judge absolutely does). So, now we get to the sanctions, which may not sound like much after all that: but he has to pay $103,517.49. This is basically the attorneys' fees and costs from the other side, plus an additional $20,000 (for the filing with the wrong registration). That's a decent amount of money, but not a staggering amount. As the court notes, though, when issuing sanctions they must be "no more severe than reasonably necessary to deter repetition... or comparable conduct by similarly situation persons." And, in theory, such a sanction might deter "similarly situation persons."

But, the real problems for Liebowitz are in the non-monetary arena. Beyond the fact that the court is sending this on to the Grievance Committee, which could lead to Liebowitz being disbarred, there are a few more things he needs to do:

Within thirty days of the date of this Opinion and Order, Mr. Liebowitz and his firm shall serve a copy of this Opinion and Order, either by email or by overnight courier, on every one of the firm’s current clients and Mr. Liebowitz shall file a declaration attesting to such service on ECF

And also:

By the same date, Mr. Liebowitz and his firm shall file a copy of this Opinion and Order on the docket of any currently pending case that was brought by Mr. Liebowitz or his firm and Mr. Liebowitz shall file a declaration attesting to the same on ECF;

And not just current cases, but every case he files in the next year:

In any action that is filed within one year of the date of this Opinion and Order by Mr. Liebowitz or his firm, Mr. Liebowitz and his firm shall file a copy of this Opinion and Order on the docket of the case within two days of filing the complaint or otherwise initiating the case; and

In any action that is filed within one year of the date of this Opinion and Order by Mr. Liebowitz or his firm that involves allegations or claims of copyright infringement, the complaint shall include as an attached exhibit a copy of the deposit files maintained by the U.S. Copyright Office reflecting prior registration of the relevant copyrighted work or works at issue.

Oh, and then after all of that, the Judge includes a lovely appendix detailing 40 other cases in which judges sanctioned or otherwise benchslapped Liebowitz. FORTY CASES. Each one includes a quote of the benchslap in question. It's like a "greatest hits" of benchslaps, but they're all for Richard Liebowitz. It includes some amazing ones I hadn't seen before (hey, there are only so many hours in a day), including:

In re Richard P. Liebowitz, No. 19-MC-80228 (JD), ECF No. 17, at 1-2 (N.D. Cal. June 12, 2020) (finding that Mr. Liebowitz “has falsely held himself out as a member of this Court’s bar on multiple occasions,” even though he “never has been a member”; noting that his “unprofessional and blameworthy conduct” is “consistent with the extensive public record of discipline he has amassed in courts across the United States”; and concluding that there are “good grounds for doubting that Liebowitz should be permitted to practice in this District even on a pro hac vice basis”).

Oof. And this coming right after it:

Geerds v. San Francisco Bay View Inc., No. 19-CV-6465 (JST), ECF No. 29 (N.D. Cal. June 10, 2020) (denying Mr. Liebowitz’s motion for admission pro hac vice in a case he filed in the Northern District on October 8, 2019, one day after he was disbarred in In re Richard P. Liebowitz, No. 19-MC-80228 (JD), ECF No. 3 (N.D. Cal. Oct. 7, 2019)).

And:

Alvarado v. Mother Jones, LLC, No. 19-CV-6417 (JST), ECF No. 25, at 2-4 (N.D. Cal. May 14, 2020) (denying Mr. Liebowitz’s motion to appear pro hac vice after finding that Mr. Liebowitz continues to “regularly” file and litigate cases in the Northern District of California following his order of disbarment in In re Richard P. Liebowitz).

And:

Mondragon v. Nosrak LLC, No. 19-CV-1437 (CMA) (NRN), 2020 WL 2395641, at *1, *14 (D. Colo. May 11, 2020) (concluding that “Mr. Liebowitz’s continued practice of law represents a clear and present danger to the fair and efficient administration of justice, and steps should be taken promptly by appropriate disciplinary authorities to suspend his ability to file new cases unless and until he has demonstrated he has appropriate systems in place to assure regular compliance with court rules and rules of professional conduct,” and requiring that Mr. Liebowitz associate with a Colorado-based attorney with at least five years of experience, who must co-sign any filings in the case, and that Mr. Liebowitz file a copy of the sanctions order in all other cases he has filed in the District of Colorado or files in the following sixth months)

And on and on and on.

I've asked in the past why anyone who can do a basic Google search would hire Richard Liebowitz after being repeatedly sanctioned (again and again and again) over these issues. There are other copyright lawyers out there. There are even other trollish copyright lawyers who will take on most of these cases. But none of them seem to run into these issues so consistently and to so regularly demonstrate their own incompetence at practicing law as Richard Liebowitz.

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[l] at 6/30/20 2:47pm

As the debates about content moderation rage on, it is becoming increasingly clear that most people don't know a whole lot about how large internet platforms actually handle these decisions — namely, that they have teams of people who have been working and studying under the "trust and safety" umbrella for a long time. Recently, an association and related foundation were launched to help bring these experts into the public conversation, and this week we've got two of the founding board members — Adelin Cai and Clara Tsao — joining us on the podcast to discuss the actual process of addressing tough content moderation choices.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

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[l] at 6/30/20 1:00pm

One of the most important privacy cases you’ve never heard of is being litigated right now in a federal district court in Maine. ACA v. Frey is a challenge by the nation’s largest broadband Internet access providers to a Maine law that protects the privacy of the state's broadband Internet users. If the broadband providers prevail, this case could eliminate sector-specific privacy laws across the nation, foreclose national privacy legislation, and have broad implications for broadband regulation generally.

In May 2019, the Maine legislature overwhelmingly passed LD 946, "An Act to Protect the Privacy of Online Consumer Information." The law largely tracks the now-repealed FCC’s 2016 broadband privacy rules, requiring broadband providers to obtain customer consent before disclosing, selling or otherwise using customer personal information. When the Maine bill was being considered, broadband providers complained that the law didn't apply to online companies like Google, Facebook, and Amazon. If everyone was treated the same, they claimed, they would support privacy legislation.

But the industry's lawsuit shows that its true intent is to avoid privacy regulation of any kind. Instead, they claim that giving consumers any control over their own data violates the First Amendment rights of the broadband providers to market goods and services. The industry also claims that by targeting only broadband providers, and not edge providers or any other company, the law is based on their status as a "speaker" and should be subject to "strict scrutiny" under the First Amendment, which requires a law to be "narrowly tailored to serve a compelling state interest."

The court should reject these arguments. Should it accept them, it would set the stage for overturning any and all sector-specific privacy laws as unconstitutional "speaker-based" violations of the First Amendment. If that were the case, then federal and state laws regulating the privacy practices of, among others, hospitals, financial institutions, pharmacies, credit reporting agencies, and libraries would all fall. Maine alone has nearly a dozen sector-specific laws. Now multiply that by 51.

The broadband industry argues that there’s no good reason to regulate it differently than any other company. But their claim that "no special characteristics of ISPs justify that distinction" doesn’t reflect reality. Broadband access providers do have "special characteristics" that other companies—including edge providers—do not.

As the FCC found in 2016, a broadband provider "sits at a privileged place in the network, the bottleneck between the customer and the rest of the network." This gatekeeper position allows broadband providers to see every piece of digital information a customer sends and receives over the Internet while on the network, often including the content of the information. Broadband providers see every website a customer visits, every communication they make, every device they use and, in many cases, every location they have visited.

Despite Big Broadband’s breathless objections, the principles underlying Maine’s broadband privacy law are nothing new. Instead, the law fits within a longstanding tradition of state and federal laws that prohibit those that deliver messages of all kinds—whether paper or electronic—from disclosing any information relating to those packages; in other words, a duty of confidentiality. This "common law" covers everyone from the post office to the telephone company to a broadband provider.

The reasoning is simple: in order to receive service, customers must expose their personal information to those entities. Like the post office or a telephone company, broadband providers shouldn't be allowed to unfairly exploit that information or reveal that information to others for profit. None of these laws violate the First Amendment. If this duty of confidentiality were found to be unconstitutional, all these laws, and those that protect lawyer/client, doctor/patient, and other fiduciary relationships would fall as well.

In any case, the core behavior prohibited by the statute—collecting and selling data—isn't even speech. The First Amendment typically protects "expressive" activity—something meant to convey a message. Instead, the law regulates the commercial exchange of data. Just because the data could potentially transmit information does not make it expressive. My former colleagues at Public Knowledge said it best in a "friend of the court" brief supporting the State of Maine:

Selling a collection of data to be used as a tool to develop products, enhance a search engine or develop marketing strategies is no more "expressive" than selling inside information to enhance a stock trade or selling paper at a retail outlet. The customer data is not commercial speech "proposing a transaction," it is the object of the transaction. [. . . ] No one has ever found that regulation of raw materials – such as marble or paper – that imposes incidental burdens on speakers as well as others raises First Amendment concerns.

While the broadband industry should lose this case, there are never any guarantees. A decision favoring the broadband industry would put every consumer privacy bill and law—including those seeking to regulate the data collection and data protection powers of big technology companies, retailers, banks, hotels, credit reporting agencies and others—at risk, whether or not they are sector specific. Worse, a broad ruling in favor of the industry's First Amendment "rights" could put other regulations at risk, including net neutrality and other efforts to protect consumers and promote competition. While normally a federal district court case in the sparsely populated state of Maine wouldn’t raise much nationwide attention, ACA v. Frey should. The future of consumer privacy protections may depend on it.

Jeff Gary is a project manager at Georgetown Law, where he runs technology-focused educational and training programs for state attorneys general and researches digital advertising. Previously, he worked in congress, federal agencies, and civil society on privacy, content moderation, and data security policy. He is a graduate of Georgetown Law and holds an M.A. in sociology of religion from King's College London.

Gigi Sohn is a Distinguished Fellow at the Georgetown Institute for Technology Law and Policy and a Benton Senior Fellow and Public Advocate. She served as Counselor to Former FCC Chairman from November 2013-December 2016. While at the FCC, she worked on the 2016 Broadband Privacy Rules. She testified before the Joint Committee on Energy, Utilities and Telecommunications of the Maine Legislature on April 24, 2019 in support of the LD 946, Maine’s Broadband Privacy Law.

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[l] at 6/30/20 11:44am

Face masks are now available in the Techdirt store on Threadless »

We've had some requests for this, and now it begins: we're adding face masks as an option for all our gear in the Techdirt store on Threadless. Not just that, we've expanded the Threadless line with our ever-popular Takedown gear and the much-anticipated return of our most successful design ever: Nerd Harder.

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[l] at 6/30/20 11:38am

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[l] at 6/30/20 10:23am

Senator Ted Cruz now loves Parler, the Twitter alternative that a bunch of Trump fans mistakenly believe won't moderate content. We've already shown that's false. However, there's another issue with Parler that some are calling out -- which is that you run a risk if you agree to that site's user agreement, because of the following that is buried as #14 on the user agreement:

You agree to defend and indemnify Parler, as well as any of its officers, directors, employees, and agents, from and against any and all claims, actions, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to all attorneys fees) arising from or relating to your access to and use of the Services. Parler will have the right to conduct its own defense, at your expense, in any action or proceeding covered by this indemnity.

Now, as we've discussed in the past, many social media sites have indemnity clauses, though they're often much more limited (also, in looking now, I'm pleasantly surprised that it looks like a few have removed indemnity clauses altogether -- I can't find one in Twitter or Tumbler's current terms for example). We've also discussed why people should be wary of many indemnity claims.

Parler's indemnity clause was first called out by @TheWolfLawayer on Twitter, and then later by The Verge's Editor in Chief, Nilay Patel, who called it a "reverse 230 clause."

Parler has basically a reverse 230 clause in its terms of service, allowing the company to bill users for legal fees relating to their posts. @jkosseff pic.twitter.com/sR5TKwQDWv

— nilay patel (@reckless) June 25, 2020

I wouldn't quite call it a "reverse 230 clause" and I think that some of the screaming about this clause is a bit overblown (again, many other platforms have similar indemnity clauses, though many are at least a bit more limited to situations where the users actually violated some law).

However, this clause should make Ted Cruz and every other Parler user huge supporters of Section 230. Now, we already know that Cruz hates Section 230, has misinterpreted it frequently, and has supported calls to get rid of it, falsely believing that this will somehow stop content moderation from being used against Nazis or something.

But here's the thing: since Ted Cruz is now on the hook if anyone sues Parler over Ted Cruz's speech on that platform... well, then Ted Cruz might want to become a big supporter of Section 230 right quick. Because it will be Section 230 that gets such a lawsuit tossed out quickly and relatively inexpensively. Without Section 230 -- even if the case is frivolous -- Parler's legal fees (by which, thanks to this legal agreement, we mean Ted Cruz's legal fees) would be much, much higher, because the lack of 230 would create a procedural mess, which would likely extend any court case greatly, and rack up Cruz's legal fees.

This is not to suggest that anyone should or would file such a lawsuit against Parler, but seeing how many misdirected cases we've seen filed against sites like Twitter over users' speech on that platform, it wouldn't be surprising if Parler eventually faces similar such lawsuits. And, if that's the case, any of its users (including Cruz) will then be in deep shit if they don't have 230 helping to reduce their legal liability.

So, Ted, maybe drop the nonsense and the lying about 230, and recognize: Section 230 protects you too, especially given your new favorite social media's excessive terms of service.

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[l] at 6/30/20 7:22am

For years we've noted how the United States has spent billions on broadband subsidies, tax breaks, and regulatory favors for major ISPs, only to receive half-completed networks. That's largely thanks to lobbyists and the captured regulators who love them, resulting in a government that doesn't do a great job tracking where subsidy money is spent, refuses to seriously police fraud, still doesn't really know where broadband is or isn't available, and routinely approves terrible industry consolidating mergers.

The result: the US is mediocre in nearly every major broadband metric that matters -- some 42 million US consumers still can't get any broadband whatsoever, and Americans pay some of the highest prices for broadband in the developed world. To fix this will require a deep look in the mirror, some significant campaign finance reform on the state and federal level, and the elimination of a revolving door regulator system that all but ensures the US broadband monopoly problem is perpetuated. Instead of doing that, we routinely try to thrown even more money at the problem in the hopes that this time will surely be different.

Enter the Accessible, Affordable Internet for All Act (H.R. 7302), which would create an $80 billion fiber infrastructure program run by a new Office of Internet Connectivity and Growth, coordinating the US government's response to our broadband dysfunction. As the Electronic Frontier Foundation notes, the bill is certainly filled with a lot of good ideas, including the elimination of the 19 state laws giant ISPs have lobbied for (and in many cases literally written) that prohibit or hamstring towns and cities looking to build their own broadband networks, even if the private sector has failed them:

"The bill will also free up local governments to pursue community broadband. The removal of state laws advocated by the major national ISPs that ban local communities from building their own broadband access network is long overdue. The public sector has long ago proven essential to the effort to build universal fiber as rural cooperatives, small cities, and townships are building fiber networks in areas long ago skipped by the private sector."

There's a lot of other helpful portions of the bill, including a section that upgrades the standard definition of broadband from 25 Mbps downstream, 4 Mbps upstream, to a more symmetrical 25 Mbps downstream, 25 Mbps upstream. The bill also widely advocates for fiber networks that are "open access," meaning the construction of fiber networks that can then be shared between multiple ISPs, creating a strange concept known as "competition." It would also mandate "dig once" rules that would require laying fiber and fiber conduit alongside any new highway build project.

The problem, of course, is that giants like AT&T, Verizon, Comcast, and Charter Spectrum all but own more than half of the current US Congress and current White House leadership, so it's unlikely to pass in the Senate or be signed into law:

"The big ISPs, which fail to deliver universal access but enjoy comfortable monopolies and charge you prices at 200% to 300% above competitive rates, will resist this effort. Even when it is profitable to deliver fiber, the national ISPs have chosen not to do it in exchange for short-term profits. A massive infrastructure program, the kind that helped countries like South Korea become global leaders in broadband, aren’t just desperately needed in the United States, it is a requirement. No other country on planet Earth has made progress in delivering universal fiber without an infrastructure policy of this type."

As always, we can't pass effective broadband laws or ensure we have consistent regulators armed with policies that promote competition because government has been largely corrupted by lobbying and campaign contributions. And, unfortunately, fixing this isn't likely to happen under the current Congress, even before you get to the whole "raging pandemic and massive pile of resulting debt" thing. Should the bill pass the House, it's all but certain to meet a swift death in the Senate. A bill like this could eventually be approved, but it's going to require a massive shakeup in Congress and campaign finance reform first.

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[l] at 6/30/20 4:23am

Two years ago, the Indiana state Appeals Court ruled residents could not be compelled to unlock devices by law enforcement -- not at the drop of a warrant. To compel the production of a password, law enforcement needs to have a certain amount of information in hand before it can ask courts to hit uncooperative criminal suspects with contempt charges.

The Appeals Court decision raised an interesting point about device encryption. Without decryption, the alleged criminal evidence is nothing more than a scramble of bits and bytes of no use to anyone. With the correct password in place, the data is reintegrated into something usable -- which turns the production of a password into a testimonial act.

In a very real sense, the files do not exist on the phone in any meaningful way until the passcode is entered and the files sought are decrypted. Thus, compelling Seo to unlock her phone goes far beyond the mere production of paper documents at issue in Fisher, Doe, or Hubbell. Because compelling Seo to unlock her phone compels her to literally recreate the information the State is seeking, we consider this recreation of digital information to be more testimonial in nature than the mere production of paper documents.

The state appealed the decision but there's nothing positive waiting for it at Indiana's top court. (via EPIC)

The state Supreme Court says compelling production of passwords violates the Fifth Amendment. The state wanted to rely on the "foregone conclusion" exception, but the court says [PDF] it doesn't have enough information on hand to start bypassing Constitutional protections.

[A] suspect surrendering an unlocked smartphone implicitly communicates, at a minimum, three things: (1) the suspect knows the password; (2) the files on the device exist; and (3) the suspect possessed those files. And, unless the State can show it already knows this information, the communicative aspects of the production fall within the Fifth Amendment’s protection. Otherwise, the suspect’s compelled act will communicate to the State information it did not previously know— precisely what the privilege against self-incrimination is designed to prevent.

The state doesn't have this information. In fact, an investigator admitted during testimony he was hoping to find evidence on the seized phone -- which definitely isn't the same thing as knowing what's contained in the device.

Even if we assume the State has shown that [Katelin] Seo knows the password to her smartphone, the State has failed to demonstrate that any particular files on the device exist or that she possessed those files. Detective Inglis simply confirmed that he would be fishing for “incriminating evidence” from the device. He believed Seo—to carry out the alleged crimes—was using an application or internet program to disguise her phone number. Yet, the detective’s own testimony confirms that he didn’t know which applications or files he was searching for:

"There are numerous, and there’s probably some that I’m not even aware of, numerous entities out there like Google Voice and Pinger and Text Now and Text Me, and I don’t know, I don’t have an all-encompassing list of them, however if I had the phone I could see which ones she had accessed through Google."

Compelling production of passwords without these conclusions in place is pretty much the equivalent of beating a confession out of a suspect. It forces someone to produce testimonial evidence to be used against them in court -- evidence still unknown to investigators.

In sum, law enforcement sought to compel Seo to unlock her iPhone so that it could then scour the device for incriminating information. And Seo’s act of producing her unlocked smartphone would provide the State with information that it does not already know.

The court goes on to explain why compelling phone passwords is not comparable to more analog versions of evidence gathering, much of which revolves around limited sets of paper documents targeted with subpoenas. The quantity of information the average smartphone contains makes these Constitutional protections even more crucial.

Smartphones are everywhere and contain everything. They have become such “a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Riley v. California, 573 U.S. 373, 385 (2014)...

Citing a prior compelled production case, the state court says this about the increasing irrelevance of analog comparisons.

Hubbell further illustrates the considerable difference between complying with a court order to produce an unlocked smartphone and complying with a documentary summons. Recall that, in Hubbell, the Government had not shown that it had any prior knowledge of either the existence or location of 13,120 pages of documents. Though not an insignificant amount of information, it pales in comparison to what can be stored on today’s smartphones. Indeed, the cheapest model of last year’s top-selling smartphone, with a capacity of 64 gigabytes of data, can hold over 4,000,000 pages of documents—more than 300 times the number of pages produced in Hubbell. It is no exaggeration to describe a smartphone’s passcode as “the proverbial ‘key to a man’s kingdom.’”

The court then goes further, suggesting the "foregone conclusion" doctrine may be completely unworkable when applied to smartphones.

Such unbridled access to potential evidence on her iPhone—or any smartphone—raises several complex questions. For example, if officers searching a suspect’s smartphone encounter an application or website protected by another password, will they need a separate motion to compel the suspect to unlock that application or website? And would the foregone conclusion exception apply to that act of production as well? Suppose law enforcement opens an application or website and the password populates automatically. Can officers legally access that information? Or what if a suspect has a cloud-storage service—like iCloud or Dropbox—installed on the device, which could contain hundreds of thousands of files. Can law enforcement look at those documents, even though this windfall would be equivalent to identifying the location of a locked storage facility that officers did not already know existed? Such complexity is neither necessary nor surprising: the foregone conclusion exception is, in this context, a low-tech peg in a cutting-edge hole.

The court says cops have other options -- options that don't bypass Constitutional protections.

At the same time, we emphasize that there are several ways law enforcement can procure evidence from smartphones without infringing on an individual’s Fifth Amendment rights. For example, officers could try to obtain information from third parties under the Stored Communications Act. Alternatively, two companies—Cellebrite and Grayshift—offer law enforcement agencies affordable products that provide access to a locked smartphone. Or officers could seek an order compelling the smartphone’s manufacturer to help bypass the lock screen. And if law enforcement wants to get into a smartphone for reasons other than prosecution, they can offer immunity to the device’s owner. But the State cannot fish for incriminating evidence by forcing Seo to give unfettered access to her iPhone when it has failed to show that any files on Seo’s smartphone exist or that she possessed those files.

This pretty much ends compelled encryption of smartphones in this state. The reasoning delivered here by the state's top court makes it almost impossible to satisfy the "foregone conclusion" standard needed to avoid violating the Fifth Amendment. Law enforcement agencies will have to seek other routes into locked devices. They'll no longer have the threat of indefinite jailing for contempt charges to hold over uncooperative suspects.

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[l] at 6/29/20 8:52pm

On Monday, both Twitch and Reddit ramped up their efforts to deal with various forms of hateful content on their platforms -- and both of them ended up shutting down some forums related to President Trump -- which inevitably (but incorrectly) resulted in people again screaming about "anti-conservative bias." Reddit kicked things off by announcing new content policies (which you can read here). The key change was an expanded rule against communities that "promote hate based on identity or vulnerability."

Based on that, Reddit has permanently shuttered around 2,000 subreddits, including, most notably the r/The_Donald subreddit for Trump fans. However, as if they were expecting the bogus claims of anti-conservative bias to show up in response, Reddit also shut down r/ChapoTrapHouse, which might be considered the flip side to The_Donald subreddit, but from the left end of the traditional political spectrum. Both communities were known for their anger spewing wackos. Reddit painted its decision to suspend both as a way to show that it is applying the rules equally across all its subreddits:

All communities on Reddit must abide by our content policy in good faith. We banned r/The_Donald because it has not done so, despite every opportunity. The community has consistently hosted and upvoted more rule-breaking content than average (Rule 1), antagonized us and other communities (Rules 2 and 8), and its mods have refused to meet our most basic expectations. Until now, we’ve worked in good faith to help them preserve the community as a space for its users—through warnings, mod changes, quarantining, and more.

Though smaller, r/ChapoTrapHouse was banned for similar reasons: They consistently host rule-breaking content and their mods have demonstrated no intention of reining in their community.

To be clear, views across the political spectrum are allowed on Reddit—but all communities must work within our policies and do so in good faith, without exception.

Of course, because content moderation at scale is impossible to do well, I've already seen plenty of complaints about other Reddit forums that the site failed to take down. And I fully expect that at some point a forum will be shut down by overzealous moderators. Because that's the nature of content moderation.

Meanwhile, over on the Twitch side, the site has been coming under increasing attacks for enabling a lot of harassment. Since much of Twitch is live-streaming, it's that much more impossible to monitor. Last week, the company promised to take harassment claims more seriously and began suspending some users. On Monday, that included a temporary ban of the president's campaign account on the site. Apparently, the move was in response to comments made at recent Trump rallies, that Twitch claims violated its policies.

Twitch pointed to comments made at two rallies that led to its decision. At a campaign rally in 2016, which was recently rebroadcast on the platform, Trump said Mexico was sending over its bad actors, such as rapists or drug dealers. Twitch also pointed to Trump’s recent Tulsa rally, where he told a fictional story of a ‘tough hombre’ invading someone’s home.

“Hateful conduct is not allowed on Twitch. In line with our policies, President Trump’s channel has been issued a temporary suspension from Twitch for comments made on stream, and the offending content has been removed,” a Twitch spokesperson told CNBC.

Again, these platforms are in an impossible position -- which we detailed in our post about the content moderation impossibility theorem. If they do nothing, tons of people will call out these platforms for inaction. But in pulling down these accounts, a bunch of other people will now be furious as well. And sooner or later these platforms will pull down other accounts that lots of other people (no matter what they're political leanings) will get upset about as well. This is the nature of content moderation.

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[l] at 6/29/20 4:44pm

So many of the discussions around content moderation have focused on the so-called "edge-providers" (the companies that are more user-facing). We all know the stories about content moderation dealing with Facebook, Twitter, YouTube, Google, etc. But for a while now we've been concerned about how the debate will play out regarding content moderation at the infrastructure layers -- that is the behind-the-scenes providers that people don't always even know exist. This includes hosting companies, DNS providers, domain registrars, CDNs, broadband providers and many, many more.

So we're (in the form of our Copia Institute think tank) are excited to be a part of a new grant to research this issue, with a specific focus on how these infrastructure content moderation issues may impact competition, privacy, and liability. We're planning to do some (virtual, for the time being!) gatherings, and putting together some research about these issues as well.

This is the first time we've worked with the Knight Foundation, and we're excited that they were willing to step up and support such important work.

As of 7/2/20 5:20am. Last new 7/2/20 5:20am.

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