As one US trade war – that with China – enters a fragile truce, another trade war is about to make a dramatic return.
A little under three months after the US announced in early April that it would seek tariffs on roughly $21 billion of European goods over EU subsidies to Airbus aircraft, and which in turn was followed almost immediately by European threats of $12 billion in retaliatory tariffs on US products such as Ketchup, Orange Juice and Tobacco, moments ago the US trade representative proposed a supplemental list of products that could potentially be subject to additional duties in order to enforce U.S. rights in the WTO dispute against the European subsidies airplane
This supplemental list adds 89 “tariff subheadings” with a trade value of $4 billion to the initial list published on April 12, which had an approximate trade value of $21 billion. USTR is adding to the initial list with the supplemental list in response to public comments and additional analysis.
In the event the Arbitrator issues its decision prior to completion of the public comment process on the supplemental list, the USTR may immediately impose increased duties on the products included in the initial list, and take further possible actions with respect to products on the supplemental list.
The supplemental list, as well as the schedule for a public hearing and written comments, are set out in a notice that will be published shortly in the Federal Register.
And now we wait as Europe counters with its own expanded list of tariffs on US imports, sending the market surging on “hopes of an imminent trade war deal/ceasefire” between the US and Europe.
via ZeroHedge News https://ift.tt/2XmbT9S Tyler Durden
Facebook’s Libra cryptocurrency is generating an immense amount of hype. Some hail it as the beginning of the end of sovereign fiat currencies. Others believe it will draw people into the cryptocurrency world, leading them inexorably to place their faith in the One True Cryptocurrency, Bitcoin. And others worry about the effect on central bank monetary policy and the possibility that a run on Libra could trigger another financial crisis.
I think this is all massively overblown. But there is one aspect that should worry everyone – and almost nobody is talking about.
Firstly, let’s look at the claim that Libra could replace sovereign currencies. This is fundamentally nonsense. Sovereign currencies are the vehicle in which governments accept taxes. Unless foolhardy governments accept Libra as an alternative to their own currencies (believe me, this is not a good idea), people will always need sovereign currency. And no, governments are not about to disappear and taxes come to an end. Dream on, crypto-libertarians.
What about Libra replacing sovereign currencies for day-to-day transactions? Facebook says:
In time, we hope to offer additional services for people and businesses, like paying bills with the push of a button, buying a cup of coffee with the scan of a code or riding your local public transit without needing to carry cash or a metro pass.
“In time?” Dear oh dear. I can pay bills with a few keystrokes on my smartphone, buy a coffee by scanning a contactless card or QR code on my phone, and touch in and out with a contactless card on London’s Tube. I can transact using contactless cards or a smartphone all over Europe and in many countries outside Europe too. The Americans who wrote the whitepaper really should get out more.
More importantly, these are not the sort of payments that really matter to people. They are “discretionary spending” – what people do with the money they have left over after they have paid taxes, rent and essential bills. Until landlords, utility companies and grocery stores accept Libra, Libra has no chance whatsoever of replacing sovereign currencies.
To be fair, replacing sovereign currencies is not in Facebook’s interests. It is relying on them to maintain Libra’s value. Libra will be pegged to a basket of major sovereign currencies. If there were a run on one or more of those currencies, Libra would become unstable. So the last thing Facebook wants is people to abandon the sovereign currencies that back Libra. Killing off the dollar and the euro is not on its agenda.
Libra won’t pay interest on its tokens, and they won’t be backed by deposit insurance. So it is difficult to see why anyone would want to hold significant quantities of Libra for transaction purposes. And it’s also uninteresting as an investment. Since Libra will be pegged to a basket of currencies and backed 100% by assets denominated in those currencies, investors would effectively be buying shares in an index tracker fund. Like we’ve never seen those before.
Perhaps the idea is that Facebook (and WhatsApp and Instagram) users would hold small quantities of Libra so they can buy the odd coffee or pay for cinema tickets. But buying Libra exposes them to FX risk. If the values of the currencies in the basket changed, so would the value of their Libra in their own currency. Surely it is much better to keep their money in an insured bank deposit account with a contactless card and a mobile payments facility?
Of course, there are people who don’t have access to banks. Facebook’s marketing documentation makes much of the “unbanked:”
In developed countries, people who don’t have access to banks are typically people with very bad credit histories, people who don’t have permanent addresses, people who don’t have identification (e.g. illegal immigrants), people with criminal records. They are unable to meet banks’ “know your customer” requirements, which are intended to prevent fraud and money laundering. Some of these people already use pre-paid cards as an alternative to bank accounts. They load the cards with cash at ATMs, then gradually spend the balance down. This is safer and less cumbersome than carrying cash.
In theory, Libra could be an alternative to a pre-paid card. But Facebook says Libra will comply with KYC/AML requirements. If it does, then it can’t be an alternative to cash or pre-paid cards for people who fail KYC checks. If it doesn’t, it will get shut down. Either way, it can’t help the unbanked in developed countries.
However, in developing countries where banks are few and far between, but everyone has a smartphone, Libra could be a safer alternative to cash – though even in developing countries, the need to comply with KYC/AML regulations could rain on Libra’s parade. But since the poor don’t have much in the way of discretionary spending power, and generally aren’t interested in making international payments, Libra would need to be very widely adopted to be of much use to them. In effect it would need to replace the sovereign currency for transactions. M-Pesa has achieved this in Kenya – but not elsewhere. Has Facebook considered that the governments of developing countries might put up barriers to adoption of private sector currencies created by rich white men in Silicon Valley?
Libra would, however, make it much quicker and cheaper to exchange emerging-market currencies for dollars. This is not a bad thing, but unless exchanges are efficient, honest (a rarity in crypto markets) and widely available, people could find their money becoming trapped on the Libra platform. And this brings me to a third problem with Libra.
Libra is what we call a “closed-loop” system. You can only spend it on things available for sale through Facebook and its associated apps. If you want to buy something through another platform, you must convert your Libra back into another currency. If it were Amazon that had created this currency, we might not regard this as a major problem. But Facebook is not (yet) a sales platform on the scale of Amazon. Yes, it promotes ads, and businesses have marketing pages. But it has a long way to go to match Amazon or Alibaba for sheer ubiquity. Although Facebook seems to be hoping that lots of new entrants will use Libra’s scripting language to design smart contracts for goods and services to be sold through its platform, the fact that Facebook is so far behind Amazon and Alibaba as a sales platform seriously diminishes Libra’s usefulness.
Some people seem to think that it is not Alibaba that Facebook is trying to compete with, but WeChat. That’s possibly true, but if so, this is a fundamental mistake. The economic world does not run on people pinging money to each other through chat groups (though WeChat would like to think that it does), it runs on merchants selling goods and services, and people buying what those merchants have to offer.
What about the threat Libra could pose to financial stability, or monetary policy? There is a not insignificant risk that in the event of a run on Libra, it will prove not to have the 100% reserve backing that it claims. If that happened, then people would not be able to recover some or all of their money. But that wouldn’t necessarily mean central banks or governments would have to intervene. Those shouting about risks to financial stability seem to think that Libra would be so huge that central banks would be obliged to bail it out. The Eurodollar market on steroids.
The Eurodollar market’s collapse in 2008 nearly brought down the global financial system. But it was a wholesale financial market made up of giant banks and corporations moving trillions of dollars around. Libra would be a retail market consisting of people and merchants buying goods and services. Even if they are very large, retail markets don’t have the potential to wreck financial stability in the way that wholesale markets do. Regulators should take an interest, of course: financial crises always start in the unregulated sector, and Libra will be in effect a giant shadow bank. But if regulators are concerned about Libra’s effect on financial stability, they already have a solution. Force Facebook to become a regulated bank, subject to capital and liquidity requirements like all other banks. After all, Goldman Sachs had to become a regulated bank in order to gain legitimate access to Fed liquidity. Why should Facebook be different?
The underlying issue here is the unspoken assumption that Facebook is too big to regulate, too big to bail, and too big to fail. Why does everyone think governments will allow Facebook to rule the world?
And this brings me to my real concern about the Libra project. Facebook’s business model since its inception has been to harvest and monetize data. I see no reason to assume that this has changed. So when I find, buried in Libra’s whitepaper, two sentences that imply Facebook’s real aim in creating Libra is to set the standard for global digital identities, my hair stands on end. As Dave Birch, director of Consult Hyperion and an expert on digital identity, puts it:
There are no throwaway remarks in a Facebook white paper that has taken a year to put together. It’s in there for a reason.
[Facebook] are actually going to try and fix the identity problem.
Dave seems fairly sanguine about Facebook’s intention. But I am not. We now know just how damaging Facebook’s data harvesting can be. If Facebook became the standard setter for digital identities, it could gain access to all personal data. And that is what it wants. Not control of finance, control of data. And if you think your personal data would be digitally secure from harvesting simply because Facebook said so, you are the biggest sucker in the world.
From a financial perspective, Libra seems fairly harmless. Even if all 2bn of Facebook’s users adopted Libra for some transactions, and all 90m of its small businesses used Libra for purchases and sales, it is not going to pose a major threat to the financial system, let alone replace sovereign currencies. But Libra is in reality a vehicle for bringing about Facebook’s wider aim of becoming the standard setter for digital identity. And that is a much, much bigger issue. Facebook is the last organization on earth that should have anything to do with digital identity or standards setting. For that reason, Libra must be stopped.
via ZeroHedge News https://ift.tt/2xqt8Ys Tyler Durden
Plaintiffs are an individual attorney and his law firm, who previously represented defendant Halana Richardson in a personal injury action she brought following a rear-end collision that occurred on September 17, 2002. That trial concluded on January 23, 2008 with a jury verdict against Richardson. Despite the adverse jury verdict, plaintiffs claim that they obtained a $20,000 settlement for Richardson.
After the settlement, the relationship between the parties ceased until June 14, 2017, when Richardson posted an unfavorable review of plaintiffs on Yelp.com …. Specifically, it is asserted that the review claimed that the attorney had lied about his fee, called an unrelated party to the witness stand in Richardson’s action, and that he is a thief and a liar and a scam artist. Further the review criticized the attorney’s height, compared him to a rodent, and called for his disbarment. While Yelp representatives removed it from the website, as well as a second review Richardson posted, plaintiffs assert that defendant went on to publish more unfavorable, allegedly defamatory reviews on Yelp, Facebook.com, internetcheaters.com, and pissedconsumer.com.
In another review posted on August 1, 2018, Richardson stated that plaintiffs sabotaged her lawsuit and “fixed” the pleadings in her case so as to claim that someone other than the driver of the other vehicle had struck her vehicle, and that plaintiffs were corrupt and were working with the adversary and cannot be trusted. While this review was deleted on Yelp it remains as a post on Richardson’s Facebook page. In additional online statements, Richardson accuses plaintiffs of taking bribes from the opposing party in the personal injury case, intentionally losing the trial by putting an unrelated witness on the stand who falsely claimed to have been the driver of the other vehicle, and attempting to sue her for nonpayment, among other things. She goes on to repeatedly attack P.D.’s professional character as an attorney, criticize his height, and compare him to a squirrel….
[P]laintiffs [argue they have been libeled,] seek an order (1) restraining defendant from publishing any statements on any website concerning plaintiffs and plaintiffs’ employees, (2) directing defendant to remove certain online posts — which plaintiffs refer to as a “takedown order” — and (3) sealing the instant case record. In support of their motion, plaintiffs contend that defendant’s statements inflicted irreparable harm to their reputations as attorneys by targeting their internet presence, on which they rely to retain new clients….
Use of Pseudonymous Caption
Preliminarily, this Court must address plaintiffs’ unilateral adoption of a caption that does not state their names. “In a summons, a complaint or a judgment the title shall include the names of all parties” … “[T]he trial court should not pro forma approve an anonymous caption, but should exercise its discretion to limit the public nature of judicial proceedings sparingly and then, only when unusual circumstances necessitate it.” If a litigant seeks to employ any means of identification other than his or her name, such relief may be sought by order to show cause when commencing an action.
“The determination of whether to allow a plaintiff to proceed anonymously requires the court to use its discretion in balancing plaintiff’s privacy interest against the presumption in favor of open trials and against any potential prejudice to defendant.” An action may not properly be brought pseudonymously if the plaintiffs have not “alleged a matter implicating a privacy right so substantial as to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings.”
Some trial-level courts of this State have considered the showing necessary for a pseudonymous caption. “[C]ourts have discretion in determining the issue and do so by balancing the privacy interests of the party seeking anonymity against the general presumption favoring open trials and the risk of prejudice to the opposing party.” “Embarrassment or economic harm to the plaintiffs is insufficient, but factors to consider as to whether plaintiffs’ situation is compelling, involving highly sensitive matters including social stigmatization, or ‘where the injury litigated against would occur as a result of the disclosure of the plaintiff’s identity.'”
Plaintiffs suggest that the professional embarrassment and injury to their reputation warrants the pseudonymous caption. However, notwithstanding their desire to preserve their privacy, and to prevent further dissemination of defendant’s criticisms and claims against them, this matter does not involve the type of truly sensitive and highly personal claims that create a “privacy right so substantial as to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings.”
It has been suggested [by a New York trial court] that “allowing plaintiff to proceed under a pseudonym does not significantly hamper the public’s interest in open trials because the public will still have access to the court records for [the] case.” Nevertheless, the failure to satisfy the controlling rule requiring “a privacy right so substantial as to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings” precludes a pseudonymous caption here.
Sealing the Court File
Plaintiffs also seek a sealing order, on the ground that the statements contained in the complaint are devastating to their reputation. A court may only order the sealing of court records upon a finding of good cause. “In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties.” “The party seeking to seal court records must demonstrate compelling circumstances,” and the court must then balance that compelling interest in preventing public access to the documents at issue against the presumption in favor of open trials. The mere potential for embarrassment, damage to reputation, or the general desire for privacy does not constitute good cause to seal court records.
Plaintiffs have merely established embarrassment and alleged damage to their reputation, and have therefore failed to demonstrate grounds to seal the court file in this matter.
Preliminary Injunction
The injunctive relief plaintiffs seek on this motion includes an order restraining the defendant from creating, publishing, and/or disseminating any statements concerning plaintiffs on any websites including, but not limited to, Yelp.com, Facebook.com, Internetcheaters.com, and pissedconsumer.com, for the purpose of defaming, denigrating, threatening, harassing, or attempting to injure plaintiffs in any way, including by attempting to cause plaintiffs emotional distress; they further seek a direction that defendant remove specifically named posts on Facebook, Yelp, pissedconsumer.com and internetcheaters.com….
The heightened standard for mandatory preliminary injunctions requiring the removal of posted materials from on-line platforms is discussed in Garcia v Google, Inc. (9th Cir. 2015). There, the plaintiff sought an order requiring Google to remove from all its platforms, including YouTube, a film called Innocence of Muslims, which included a five-second clip of a performance by the plaintiff for which the plaintiff claimed copyright protection. The Court explained that “this relief is treated as a mandatory injunction, because it orders a responsible party to take action, [and] as we have cautioned, a mandatory injunction goes well beyond simply maintaining the status quo pendente lite [and] is particularly disfavored.” It elaborated that “[t]emporary restraining orders and permanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints” and that “[p]rior restraints pose the most serious and the least tolerable infringement on First Amendment rights.”
The particular concerns that arise with requests to enjoin a party from the on-line posting of highly critical statements about another party were recently addressed by … Brummer v Wey (N.Y. App. Div. 2018). There, the Court reversed a motion court’s grant of the plaintiff’s motion for a preliminary injunction order both enjoining the defendants from posting articles about him on line, and requiring the defendants to remove all articles they had posted about him. The Court initially observed that “[p]rior restraints on speech are the most serious and the least tolerable infringement on First Amendment rights, and any imposition of prior restraint, whatever the form, bears a heavy presumption against its constitutional validity.” Because “to obtain such a restraint … [the applicant] must show that the speech sought to be restrained is ‘likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest’ [such as] an intent to commit an act of unlawful violence to a particular individual or group of individuals,” even highly offensive, repulsive and inflammatory speech does not meet this exacting constitutional standard.
Importantly, the Court in Brummer v Wey emphasized that “although it may ultimately be determined that defendants have libeled plaintiff, “[p]rior restraints are not permissible … merely to enjoin the publication of libel.”
In addition, while published statements that “charg[e] plaintiffs with a serious crime” or “tend to injure another in his or her trade, business or profession” constitute libel per se, the circumstances and context of the publication is important in determining whether a statement is actionable… “[T]he culture of Internet communications, as distinct from that of print media such as newspapers and magazines, has been characterized as encouraging a ‘freewheeling, anything goes writing style.'” In the context of on-line sites such as Yelp, Facebook, and pissedconsumer.com, where users post criticisms of professional services, even such assertions as calling a person a thief, a liar, dishonest, corrupt and a scam artist may be found to “amount to the opinions and beliefs of dissatisfied clients about their attorney’s work.”
While the portions of defendant’s posted statements that use the words “law firm takes bribes” read as defamation per se, and while this Court does not question plaintiffs’ professionalism, the falsity of the statement may not be assumed, but rather, must still be proved for it to constitute defamation. The same holds true for defendant’s assertion that “the lawyer knew the individual rear ended me and did put someone else on the stand instead of the individual that rear ended me,” which has the indicia of actionable mixed opinion that “implies that it is based upon facts which justify the opinion.” Without a hearing, plaintiffs’ denials of the asserted misconduct, in papers submitted at the commencement of the action on a motion for a preliminary injunction, even though unopposed, do not establish the truth of their assertions so as to justify a “takedown” order at this time.
[Foonote:] … New York courts have granted preliminary injunctions removing and precluding allegedly libelous internet postings (see Dae Hyun Chung v Google, Inc. (App. Div. 2017); Dennis v Napoli, (App. Div. 2017)). However, the Dae Hyun Chung case was decided solely on procedural grounds, and contains no discussion of constitutional concerns. The ruling in Dennis v Napoli is distinguishable from the instant matter, in that the information used by the defendant there to harass and defame the plaintiff had been improperly obtained through an intrusion into the plaintiff’s own work email account and personnel file; moreover, there was no merit to the defendant’s constitutional argument that “her unsolicited communications to plaintiff’s professional colleagues, friends, and family about plaintiff’s alleged sexual proclivities are constitutionally protected speech.”
None of the foregoing precludes a determination that defendant’s statements are defamatory. It merely precludes a grant of the preliminary injunction “takedown order” plaintiffs seek….
Plaintiffs are an individual attorney and his law firm, who previously represented defendant Halana Richardson in a personal injury action she brought following a rear-end collision that occurred on September 17, 2002. That trial concluded on January 23, 2008 with a jury verdict against Richardson. Despite the adverse jury verdict, plaintiffs claim that they obtained a $20,000 settlement for Richardson.
After the settlement, the relationship between the parties ceased until June 14, 2017, when Richardson posted an unfavorable review of plaintiffs on Yelp.com …. Specifically, it is asserted that the review claimed that the attorney had lied about his fee, called an unrelated party to the witness stand in Richardson’s action, and that he is a thief and a liar and a scam artist. Further the review criticized the attorney’s height, compared him to a rodent, and called for his disbarment. While Yelp representatives removed it from the website, as well as a second review Richardson posted, plaintiffs assert that defendant went on to publish more unfavorable, allegedly defamatory reviews on Yelp, Facebook.com, internetcheaters.com, and pissedconsumer.com.
In another review posted on August 1, 2018, Richardson stated that plaintiffs sabotaged her lawsuit and “fixed” the pleadings in her case so as to claim that someone other than the driver of the other vehicle had struck her vehicle, and that plaintiffs were corrupt and were working with the adversary and cannot be trusted. While this review was deleted on Yelp it remains as a post on Richardson’s Facebook page. In additional online statements, Richardson accuses plaintiffs of taking bribes from the opposing party in the personal injury case, intentionally losing the trial by putting an unrelated witness on the stand who falsely claimed to have been the driver of the other vehicle, and attempting to sue her for nonpayment, among other things. She goes on to repeatedly attack P.D.’s professional character as an attorney, criticize his height, and compare him to a squirrel….
[P]laintiffs [argue they have been libeled,] seek an order (1) restraining defendant from publishing any statements on any website concerning plaintiffs and plaintiffs’ employees, (2) directing defendant to remove certain online posts — which plaintiffs refer to as a “takedown order” — and (3) sealing the instant case record. In support of their motion, plaintiffs contend that defendant’s statements inflicted irreparable harm to their reputations as attorneys by targeting their internet presence, on which they rely to retain new clients….
Use of Pseudonymous Caption
Preliminarily, this Court must address plaintiffs’ unilateral adoption of a caption that does not state their names. “In a summons, a complaint or a judgment the title shall include the names of all parties” … “[T]he trial court should not pro forma approve an anonymous caption, but should exercise its discretion to limit the public nature of judicial proceedings sparingly and then, only when unusual circumstances necessitate it.” If a litigant seeks to employ any means of identification other than his or her name, such relief may be sought by order to show cause when commencing an action.
“The determination of whether to allow a plaintiff to proceed anonymously requires the court to use its discretion in balancing plaintiff’s privacy interest against the presumption in favor of open trials and against any potential prejudice to defendant.” An action may not properly be brought pseudonymously if the plaintiffs have not “alleged a matter implicating a privacy right so substantial as to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings.”
Some trial-level courts of this State have considered the showing necessary for a pseudonymous caption. “[C]ourts have discretion in determining the issue and do so by balancing the privacy interests of the party seeking anonymity against the general presumption favoring open trials and the risk of prejudice to the opposing party.” “Embarrassment or economic harm to the plaintiffs is insufficient, but factors to consider as to whether plaintiffs’ situation is compelling, involving highly sensitive matters including social stigmatization, or ‘where the injury litigated against would occur as a result of the disclosure of the plaintiff’s identity.'”
Plaintiffs suggest that the professional embarrassment and injury to their reputation warrants the pseudonymous caption. However, notwithstanding their desire to preserve their privacy, and to prevent further dissemination of defendant’s criticisms and claims against them, this matter does not involve the type of truly sensitive and highly personal claims that create a “privacy right so substantial as to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings.”
It has been suggested [by a New York trial court] that “allowing plaintiff to proceed under a pseudonym does not significantly hamper the public’s interest in open trials because the public will still have access to the court records for [the] case.” Nevertheless, the failure to satisfy the controlling rule requiring “a privacy right so substantial as to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings” precludes a pseudonymous caption here.
Sealing the Court File
Plaintiffs also seek a sealing order, on the ground that the statements contained in the complaint are devastating to their reputation. A court may only order the sealing of court records upon a finding of good cause. “In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties.” “The party seeking to seal court records must demonstrate compelling circumstances,” and the court must then balance that compelling interest in preventing public access to the documents at issue against the presumption in favor of open trials. The mere potential for embarrassment, damage to reputation, or the general desire for privacy does not constitute good cause to seal court records.
Plaintiffs have merely established embarrassment and alleged damage to their reputation, and have therefore failed to demonstrate grounds to seal the court file in this matter.
Preliminary Injunction
The injunctive relief plaintiffs seek on this motion includes an order restraining the defendant from creating, publishing, and/or disseminating any statements concerning plaintiffs on any websites including, but not limited to, Yelp.com, Facebook.com, Internetcheaters.com, and pissedconsumer.com, for the purpose of defaming, denigrating, threatening, harassing, or attempting to injure plaintiffs in any way, including by attempting to cause plaintiffs emotional distress; they further seek a direction that defendant remove specifically named posts on Facebook, Yelp, pissedconsumer.com and internetcheaters.com….
The heightened standard for mandatory preliminary injunctions requiring the removal of posted materials from on-line platforms is discussed in Garcia v Google, Inc. (9th Cir. 2015). There, the plaintiff sought an order requiring Google to remove from all its platforms, including YouTube, a film called Innocence of Muslims, which included a five-second clip of a performance by the plaintiff for which the plaintiff claimed copyright protection. The Court explained that “this relief is treated as a mandatory injunction, because it orders a responsible party to take action, [and] as we have cautioned, a mandatory injunction goes well beyond simply maintaining the status quo pendente lite [and] is particularly disfavored.” It elaborated that “[t]emporary restraining orders and permanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints” and that “[p]rior restraints pose the most serious and the least tolerable infringement on First Amendment rights.”
The particular concerns that arise with requests to enjoin a party from the on-line posting of highly critical statements about another party were recently addressed by … Brummer v Wey (N.Y. App. Div. 2018). There, the Court reversed a motion court’s grant of the plaintiff’s motion for a preliminary injunction order both enjoining the defendants from posting articles about him on line, and requiring the defendants to remove all articles they had posted about him. The Court initially observed that “[p]rior restraints on speech are the most serious and the least tolerable infringement on First Amendment rights, and any imposition of prior restraint, whatever the form, bears a heavy presumption against its constitutional validity.” Because “to obtain such a restraint … [the applicant] must show that the speech sought to be restrained is ‘likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest’ [such as] an intent to commit an act of unlawful violence to a particular individual or group of individuals,” even highly offensive, repulsive and inflammatory speech does not meet this exacting constitutional standard.
Importantly, the Court in Brummer v Wey emphasized that “although it may ultimately be determined that defendants have libeled plaintiff, “[p]rior restraints are not permissible … merely to enjoin the publication of libel.”
In addition, while published statements that “charg[e] plaintiffs with a serious crime” or “tend to injure another in his or her trade, business or profession” constitute libel per se, the circumstances and context of the publication is important in determining whether a statement is actionable… “[T]he culture of Internet communications, as distinct from that of print media such as newspapers and magazines, has been characterized as encouraging a ‘freewheeling, anything goes writing style.'” In the context of on-line sites such as Yelp, Facebook, and pissedconsumer.com, where users post criticisms of professional services, even such assertions as calling a person a thief, a liar, dishonest, corrupt and a scam artist may be found to “amount to the opinions and beliefs of dissatisfied clients about their attorney’s work.”
While the portions of defendant’s posted statements that use the words “law firm takes bribes” read as defamation per se, and while this Court does not question plaintiffs’ professionalism, the falsity of the statement may not be assumed, but rather, must still be proved for it to constitute defamation. The same holds true for defendant’s assertion that “the lawyer knew the individual rear ended me and did put someone else on the stand instead of the individual that rear ended me,” which has the indicia of actionable mixed opinion that “implies that it is based upon facts which justify the opinion.” Without a hearing, plaintiffs’ denials of the asserted misconduct, in papers submitted at the commencement of the action on a motion for a preliminary injunction, even though unopposed, do not establish the truth of their assertions so as to justify a “takedown” order at this time.
[Foonote:] … New York courts have granted preliminary injunctions removing and precluding allegedly libelous internet postings (see Dae Hyun Chung v Google, Inc. (App. Div. 2017); Dennis v Napoli, (App. Div. 2017)). However, the Dae Hyun Chung case was decided solely on procedural grounds, and contains no discussion of constitutional concerns. The ruling in Dennis v Napoli is distinguishable from the instant matter, in that the information used by the defendant there to harass and defame the plaintiff had been improperly obtained through an intrusion into the plaintiff’s own work email account and personnel file; moreover, there was no merit to the defendant’s constitutional argument that “her unsolicited communications to plaintiff’s professional colleagues, friends, and family about plaintiff’s alleged sexual proclivities are constitutionally protected speech.”
None of the foregoing precludes a determination that defendant’s statements are defamatory. It merely precludes a grant of the preliminary injunction “takedown order” plaintiffs seek….
The theme this week is China’s growing confidence in using cyberweapons in new and sophisticated ways, and the US struggle to find an answer to China’s growing ambition in this sphere. Our interview guest, Chris Bing of Reuters, talks about his story on Chinese penetration of managed service providers like HP Enterprise – a penetration that allowed APT10 access to hundreds of other companies that rely on managed service providers for most of their IT. Most chilling for the customers are strong suggestions that the providers often didn’t provide notice of the intrusions to their customers – or, worse, that the providers’ contracts may have prevented their customers from launching quick and thorough investigations when their own security systems detected anomalous behavior originating with the providers. After this episode, a lot of CISOs will be rereading their managed service contracts. Chris also tells the story of an apparent “Five Eyes” intrusion into Yandex, the big Russian search engine.
Returning to China, in our News Roundup Nate Jones covers the latest in the US-China trade war before diving into a Wall Street Journal article (by Kate O’Keeffe) that I call the Rosetta Stone for the last two years of cyber policymaking. Looking for the unifying theme in the lobbying fight over FIRRMA, the president’s executive orders on cyber, and sanctions on companies like Sugon? Look no further than AMD, particularly its accommodation of China’s ambitions in chip manufacture and the Pentagon’s desperate effort to thwart its plans. Nate and I also consider a possible new US requirement that domestic 5G equipment be made outside China.
Speaking of metadata, David Kris explains why Congress is more exercised over NSA’s access to American phone metadata than China’s. Congress took the view that NSA should not collect the metadata of innocent Americans, even if it only searched the data when it had a legal basis for doing so. Instead, Congress constructed a new Section 215 program that depended on each telco to do searches of data that remained in its hands. Unsurprisingly, the telcos have done that badly, sending the wrong data to NSA on more than one occasion. Naturally, Congress now blames NSA for “overcollecting.” Don’t hold your breath waiting for an apology from the Congressional cranks who got us into this mess.
Are you a conservative comforting yourself with the idea that Silicon Valley censorship is just a creature of platform monopoly that can be cured by more competition? Guess again. Two more conservative-hostile moves by Silicon Valley show that competition isn’t likely to end virtue signaling in the Valley. After Google banned Project Veritas’s video exposé of YouTube for, uh, privacy – that’s it, privacy – violations, its distant No. 2 competitor Vimeo responded to the competitive opportunity by also banning the video for, uh, defamation or something. And when Twitter competitor Parler offered a home to conservatives, Apple reportedly threatened (at least briefly) not to distribute the app unless it kicked some unspecified bad actors off the service.
Meanwhile, two Silicon Valley platforms that really do depend on at least a few conservative voices were singing that famous C&W song, “I hate you. I need you. And I hate that I need you.” (Okay, I made that up, but there really should be a Taylor Swift song with those lyrics.) Anyway, the needy haters of Silicon Valley have been searching for ways to show their contempt for people they’re afraid to shut down completely, and now they’ve found it. Reddit “quarantined” their wildly popular subreddit, r/the_donald, over posts the moderators said they’d never seen and had never been reported to them. And Twitter announced that it planned to salve its SJW conscience while still profiting from Trump’s tweets by attaching disapproving labels to them. Nate tries to hose me down, but it’s too late.
Finally, in breaking news from 1993, David reports that the Trump Administration is considering an encryption crackdown but can’t choose between a toothless statement of principles and a feckless proposal of legislation that will not pass. I offer the suggestion that the statement of principles could be enough to undercut Silicon Valley’s campaign to stop encryption controls in countries like Australia, the UK, and Germany. That’s where controls will eventually come from, David and I agree. If so, I’m looking forward to hearing all those folks who told us that GDPR was just the voice of civilization calling across the Atlantic say the same about European encryption mandates.
As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!
The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.
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The theme this week is China’s growing confidence in using cyberweapons in new and sophisticated ways, and the US struggle to find an answer to China’s growing ambition in this sphere. Our interview guest, Chris Bing of Reuters, talks about his story on Chinese penetration of managed service providers like HP Enterprise – a penetration that allowed APT10 access to hundreds of other companies that rely on managed service providers for most of their IT. Most chilling for the customers are strong suggestions that the providers often didn’t provide notice of the intrusions to their customers – or, worse, that the providers’ contracts may have prevented their customers from launching quick and thorough investigations when their own security systems detected anomalous behavior originating with the providers. After this episode, a lot of CISOs will be rereading their managed service contracts. Chris also tells the story of an apparent “Five Eyes” intrusion into Yandex, the big Russian search engine.
Returning to China, in our News Roundup Nate Jones covers the latest in the US-China trade war before diving into a Wall Street Journal article (by Kate O’Keeffe) that I call the Rosetta Stone for the last two years of cyber policymaking. Looking for the unifying theme in the lobbying fight over FIRRMA, the president’s executive orders on cyber, and sanctions on companies like Sugon? Look no further than AMD, particularly its accommodation of China’s ambitions in chip manufacture and the Pentagon’s desperate effort to thwart its plans. Nate and I also consider a possible new US requirement that domestic 5G equipment be made outside China.
Speaking of metadata, David Kris explains why Congress is more exercised over NSA’s access to American phone metadata than China’s. Congress took the view that NSA should not collect the metadata of innocent Americans, even if it only searched the data when it had a legal basis for doing so. Instead, Congress constructed a new Section 215 program that depended on each telco to do searches of data that remained in its hands. Unsurprisingly, the telcos have done that badly, sending the wrong data to NSA on more than one occasion. Naturally, Congress now blames NSA for “overcollecting.” Don’t hold your breath waiting for an apology from the Congressional cranks who got us into this mess.
Are you a conservative comforting yourself with the idea that Silicon Valley censorship is just a creature of platform monopoly that can be cured by more competition? Guess again. Two more conservative-hostile moves by Silicon Valley show that competition isn’t likely to end virtue signaling in the Valley. After Google banned Project Veritas’s video exposé of YouTube for, uh, privacy – that’s it, privacy – violations, its distant No. 2 competitor Vimeo responded to the competitive opportunity by also banning the video for, uh, defamation or something. And when Twitter competitor Parler offered a home to conservatives, Apple reportedly threatened (at least briefly) not to distribute the app unless it kicked some unspecified bad actors off the service.
Meanwhile, two Silicon Valley platforms that really do depend on at least a few conservative voices were singing that famous C&W song, “I hate you. I need you. And I hate that I need you.” (Okay, I made that up, but there really should be a Taylor Swift song with those lyrics.) Anyway, the needy haters of Silicon Valley have been searching for ways to show their contempt for people they’re afraid to shut down completely, and now they’ve found it. Reddit “quarantined” their wildly popular subreddit, r/the_donald, over posts the moderators said they’d never seen and had never been reported to them. And Twitter announced that it planned to salve its SJW conscience while still profiting from Trump’s tweets by attaching disapproving labels to them. Nate tries to hose me down, but it’s too late.
Finally, in breaking news from 1993, David reports that the Trump Administration is considering an encryption crackdown but can’t choose between a toothless statement of principles and a feckless proposal of legislation that will not pass. I offer the suggestion that the statement of principles could be enough to undercut Silicon Valley’s campaign to stop encryption controls in countries like Australia, the UK, and Germany. That’s where controls will eventually come from, David and I agree. If so, I’m looking forward to hearing all those folks who told us that GDPR was just the voice of civilization calling across the Atlantic say the same about European encryption mandates.
As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!
The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.
from Latest – Reason.com https://ift.tt/2KSAnBi
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Former Vice President Joe Biden’s sure-shot lead over his 2020 Democratic competitors just suffered a major blow, according to a new HuffPost/YouGov poll reported by the Huffington Post‘s Ariel Edwards-Levy.
Make no mistake, Biden is still in the lead by double digits in most polls – although his popularity has clearly taken a big hit since early May, while candidates Bernie Sanders, Elizabeth Warren, and Kamala Harris saw healthy upticks following last week’s debates.
And according to the HuffPost/YouGov poll, Biden is now far less electable than he was in May, dropping from 70% to 57%. While this still places him above the pack, Warren and Harris appear to be within striking distance.
Here’s, I think, the major finding of this poll. Look how the field on electability has shifted since May from a clear Biden lead to a four-way top tier. (Note this is all Dem/Dem-leaning voters, not debate viewers.)https://t.co/CFj7w3TPdnpic.twitter.com/UsY6G2NmXb
According to those polled, Warren was a sharp debater, while Harris was “very direct” in her vision for the country. One respondent said that Harris “smoked Biden like a cheap cigar.”
Warren, who dominated the opening moments of the first debate, stood out because she “clearly articulated, explained, and defended her policy positions” wrote one Texas woman included in the poll. “She was focused, thoughtful, authoritative, and convincing. She seems to have improved her live performance skills and appeared unflappable. And very capable.”
During the second debate, Harris sliced through her rivals’ crosstalk and challenged Biden on his history with racial issues, such as busing. She was ”[v]ery direct in her plans and outspoken,” wrote another woman, who was polled shortly after that night. “To beat the aggressive president we have now the candidate will have to be just as aggressive.” –HuffPo
Below you can see how Democratic voters’ opinions changed for each candidate following the debates.
Of course, there are a few caveats to polls such as this:
In case people don’t feel like reading screenshots of text, the major caution I have is that none of these are horserace questions — a strong performance in the very first debate isn’t guaranteed to swing vote preference even temporarily, let alone for the actual election.
Just as Alexandria Ocasio-Cortez shared her latest alarming claim about conditions in detention centers for illegal migrants crossing into the US, President Trump insisted on Monday that his administration still plans to carry out the mass ICE raids of migrants who have been given notices to leave the country.
As the controversy balloons over a Facebook group where border patrol agents reportedly shared sexually explicit depictions of AOC – including a cartoon allegedly showing her sucking off a migrant – AOC accused border agents of carrying out “psychological warfare” against detained migrants, whom AOC claimed were forced to drink toilet water.
There are 20,000 TOTAL Customs & Border Patrol agents in the US.
9,500 – almost HALF that number – are in a racist & sexually violent secret CBP Facebook group.
They’re threatening violence on members of Congress. How do you think they’re treating caged children+families? https://t.co/AfDB50cgHQ
After I forced myself into a cell w/ women&began speaking to them, one of them described their treatment at the hands of officers as “psychological warfare” – waking them at odd hours for no reason, calling them wh*res, etc.
Tell me what about that is due to a “lack of funding?”
Now I’m on my way to Clint, where the Trump admin was denying children toothpaste and soap.
This has been horrifying so far. It is hard to understate the enormity of the problem. We’re talking systemic cruelty w/ a dehumanizing culture that treats them like animals.
AOC’s latest twitter rant follows reports that agents used a secret Facebook group to share lewd posts about her another far-left progressive Democrat. CBP said it was aware of the group and was investigating the matter, while Trump said Monday that he was unaware of the situation.
But “Sandy from the Bronx” wasn’t the only Dem to make the salacious claim about migrants drinking from toilets. California Rep. Judy Chu made a similar claim, while Pennsylvania Rep. Madeleine Dean said conditions at the detention centers were “far worse than we ever could have imagined,” according to Bloomberg.
And just as she can take criticism, AOC proved during this trip that she can dish it out, too. According to a reporter from the Washington Examiner, AOC “screamed” at federal law enforcement agents during the trip “in a threatening manner.”
SCOOP: Rep. Alexandria Ocasio-Cortez, D-N.Y., screamed at federal law enforcement agents “in a threatening manner” during a visit to a U.S. Border Patrol facility in El Paso, Texas, Monday afternoon and refused to tour the facility, according to two people who witnessed it.
All three lawmakers traveling with a group organized by the Congressional Hispanic Caucus to visit detention centers in El Paso and Clint, Texas, and do some investigating following a series of reports about the lack of access to “safe and sanitary” conditions in both towns.
During a televised press conference at Clint, AOC was ambushed by Trump supporters.
The uproar has caused border agents in El Paso to warn about the risk of riots by migrants being held in the overcrowded cells. According to Reuters.
Border Patrol agents “remained armed in the holding areas because of their concerns with the overcrowding that potentially could result in volatile situations (riots etc.)” or hunger strikes, the documents attached to the Office of Inspector General report revealed.
Meanwhile, according to CNN, Trump said he expects massive raids to round up migrants who have been issued notices to leave the country will be carried out soon after this weekend’s Fourth of July holiday, which could pair nicely with Trump’s promised but still not fully planned “Salute To America” military parade.
Trump shared his latest thoughts on the crisis at the border during an interview Monday from the Oval Office.
“They spend billions of dollars on the census, and you’re not allowed to ask whether somebody is a citizen?” Trump says on his fight to delay the 2020 census.
“There’s a big difference to me between being a citizen of the U.S. and being an illegal” pic.twitter.com/K61x4yIAvG
In a tweet last weekend, Trump delayed the raids – planned for 10 major American cities – for 2 weeks “at the request of Democrats,” ostensibly to give them time to try and hash out “a solution to the Asylum and Loophole problems” with Republicans.
At the request of Democrats, I have delayed the Illegal Immigration Removal Process (Deportation) for two weeks to see if the Democrats and Republicans can get together and work out a solution to the Asylum and Loophole problems at the Southern Border. If not, Deportations start!
Last week, the House passed a $4.6 billion aid package intended to ease the “humanitarian crisis” at the border, despite opposition from both Nancy Pelosi and Trump.
But once the raids happen, imagine how AOC and her band of far-left progressives will react? This could be the push that sends her over the edge in openly calling for revolution.
via ZeroHedge News https://ift.tt/325FKT1 Tyler Durden
Who had school busing in the betting pool for poll-moving Democratic presidential debate controversies? And yet here we are.
Well, if it’s racial discord and school choice that you want to talk about, then that’s exactly what you’ll get on today’s Editors’ Roundtable edition of the Reason Podcast. Katherine Mangu-Ward, Nick Gillespie, Peter Suderman, and Matt Welch talk about their own personal histories with school integration, preferred remedies for helping disadvantaged students receive a better education, and what these debates mean for the modern Democratic Party.
Also under discussion today are shake-ups to the Beltway foreign policy consensus, the beating of Quillette writer Andy Ngo, whether it’s healthy for restaurants to deny service to Trumpites, and why Yoko Ono was the most underrated Beatle.
Losing ‘visibility necessary to attract the attention of college recruiters’
Boys are competing in girls’ track and field events in Connecticut, at the direction of the Connecticut Interscholastic Athletic Conference, so that transgender students don’t feel invalidated.
They are often winning, and the girls are afraid to publicly object for fear of “retaliation,” according to Selina Soule, one of the female competitors.
That’s why Soule and two of her unnamed female peers are asking the U.S. Department of Education to investigate CIAC for Title IX violations.
They contend CIAC’s new policy allows “boys who are male in every biological and physiological respect—including unaltered male hormone levels and musculature—to compete in girls’ athletic competitions if they claim a female gender identity,” according to the Title IX complaint filed on their behalf by the Alliance Defending Freedom.
The decision to let biological males compete has “deprived many girls of opportunities to achieve public recognition, a sense of reward for hard work, opportunities to participate in higher level competition, and the visibility necessary to attract the attention of college recruiters and resulting scholarships,” states the complaint, filed in mid-June.
This policy already has resulted in negative outcomes for Soule and the other unnamed minors in the complaint.
Two biologically male students, Andraya Yearwood and Terry Miller, have dominated the sport since they were allowed to compete against biological females. The two of them together have won as many women’s state championship titles (15) as did 10 girls who identify as girls in 2016, according to the complaint.
Yearwood and Miller have also “taken more than 40 opportunities to participate in higher level competitions from female track athletes in the 2017, 2018, and 2019 seasons alone.”
Soule shared her frustration with The Daily Signal in May. Two biologically male competitors took the spots ahead of her in the 55-meter dash, preventing her from competing in the New England regionals in front of college coaches.
“Everyone is afraid of retaliation from the media, from the kids around their school, from other athletes, coaches, schools, administrators,” said Soule, who alleges official retaliation against her for speaking out in the complaint.
“They don’t want to drag attention [sic] to themselves, and they don’t want to be seen as a target for potential bullying and threats,” she said.
Coach allegedly threatened to badmouth dissident female athlete to recruiters
The CIAC policy on transgender students differs from the NCAA’s, which requires males to take testosterone-suppressing hormones for at least a year before competing in a female sport. The only requirement in CIAC policy is that a student subjectively identify as the opposite sex.
The complaint features more than a dozen tables listing competition results and times for female athletes, and how biologically male athletes affected their placements. It says these are only “examples.”
It notes that Miller did not place in boys’ track competition in 2017 and winter 2018. Miller went on to great success only after competing in female track events starting that spring.
Biological males took first place in 13 out of 14 events for females, and 23 out of 28 when including second-place awards, in seven state-level competitions. They won “51 opportunities to participate in a higher-level state competition,” compared to 31 for girls.
The girls who filed the complaint also allege that the CIAC has participated in intimidation and retaliation against those who oppose the male-inclusive policy.
One of the mothers of the unnamed complainant repeatedly complained to the CIAC about the “discriminatory impact” that the new policy had on her daughter. The CIAC did not provide a “substantive response,” and Connecticut school officials attempted to dissuade her from filing a Title IX complaint, according to the complaint.
Soule contends that her mother’s outspoken opposition to the policy led her coaches to mistreat her.
Her track coach made her perform workouts that are uncommon for short-distance sprinters like her, “and has forbidden her from competing in any high school track and field event unless she completes them,” the complaint reads.
Another coach told Soule and her father that if a college recruiter asked about her, “he would not be able to give a good report about her.”
The complaint cites an anonymous female student quoted in The Daily Signal on her fear of retaliation for speaking out.
“There’s really nothing else you can do except get super frustrated and roll your eyes, because it’s really hard to even come out and talk in public just because … just immediately you’ll just be shut down,” she said.
The feds already approved transgender policy?
The complaint asks the government to forcibly overturn CIAC’s transgender policy, and ban it from letting students compete in girls’ athletics who are “in all physiological and hormonal respects males.”
Soule and the other two complainants also want records of past races to be revised to retroactively disqualify biologically male students from the female events. CIAC should also be ordered by the government to issue a press release giving credit to every female who would have placed if not for the policy.
Finally, the Department of Education should declare that CIAC’s policy violates Title IX. The complainants asked for a quick investigation so girls do not lose any more opportunities to boys in their competitions starting this winter.
CIAC did not respond to The College Fix’s request for comment. But Glenn Lungarini, its executive director, told The Hartford Courant that it discussed the policy language with both the Boston office of the Department of Education’s Office for Civil Rights and Connecticut’s human rights commission.
Yearwood and Miller, the biologically male athletes identified in the complaint, attacked the complainants in a statement to the Courant.
“I am a girl and I am a runner,” Miller said.
“I participate in athletics just like my peers to excel, find community and meaning in my life. It is both unfair and painful that my victories have to be attacked and my hard work ignored.”
Yearwood highlighted the “discrimination that I face as a young black woman who is transgender. … Every day I train hard — I work hard to succeed on the track, to support my teammates, and to make my community proud.”
Miller is also black. Their lawyers at the ACLU emphasized their race, which is objective, as well as their gender identity, which is not, in a statement to the newspaper.
via ZeroHedge News https://ift.tt/2J2Yvid Tyler Durden
