Tag: posts

“Trump Was Kicked Off Twitter. Who’s Next?”

This is a new op-ed of mine in the N.Y. Times tonight (note that, as usual, the headline and the subhead were written by the editors, not by me). An excerpt:

Recall the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, which held that corporations and unions have the First Amendment right to speak about political candidates. I happen to agree with the court’s decision in that case, but four justices and a legion of commentators didn’t. Many were concerned that by using their wealth, corporations would undermine democracy and unduly influence elections and sway elected officials.

Yet Citizens United was just about whether corporations could spend money to convey their views. Now we have a few huge corporations actually blocking someone’s ability to convey his views. Plus, such blocking affects not just the speaker; it also affects the millions of people who use Facebook and Twitter to hear what their elected officials have to say.

And what happens once is likely to happen again. After this, there’ll be pressure to get Facebook, Twitter and other companies to suppress other speech, such as fiery rhetoric against the police or oil companies or world trade authorities. People will demand: If you blocked A, why aren’t you blocking B? Aren’t you being hypocritical or discriminatory? …

Companies, moreover, are run by humans, subject to normal human failings. Mr. Trump’s suspension may have been motivated by a sincere desire to resist efforts “to undermine the peaceful and lawful transition of power,” as Facebook’s chief executive, Mark Zuckerberg, put it. But other politicians might be suspended because their policies are bad for corporate profits or contrary to the owners’ political ideologies.

The standard Times op-ed deal doesn’t let me post the whole piece until 30 days after I publish it. (As you know, we moved here to Reason in part because the Washington Post was putting us behind a hard paywall; but while I don’t like having most of my stuff behind a paywall, I’m OK with having <0.1% of my items there.) But if you have N.Y. Times access, I hope you read the whole thing.

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Antifa Demands Powell’s Stop Selling Andy Ngo’s Book, Forces Store To Close Early

Screen Shot 2021-01-11 at 9.57.19 PM

Far-left activists surrounded Powell’s Books in Portland on Monday and demanded the store stop selling Unmasked: Inside Antifa’s Radical Plan to Destroy Democracy, a book about antifa written by Andy Ngo. The protests forced the store to close early.

Powell’s announced that it would not carry the book in its physical store, though it will still be available for purchase online.

“This book will not be on our store shelves, and we will not promote it,” said Powell’s in a statement. “That said, it will remain in our online catalogue. We carry books that we find anywhere from simply distasteful or badly written, to execrable, as well as those that we treasure. We believe it is the work of bookselling to do so.”

Ngo, who has documented antifa’s tactics for various conservative news websites and was once attacked by the group, tweeted video footage of the protesters. One such protester claimed that disrupting the book’s dissemination was akin to “stopping the historical publication of Hitler’s ‘Mein Kampf.'”

Powell’s noted that the store is committed to free speech, and previously received “credible bomb threats” for selling books by Salman Rushdie, whose 1988 book The Satanic Verses made the author a target of Islamic extremists:

There are books in our stores and online inventory that contain ideas that run counter to our company’s and our employees’ values of safety, equality, and justice. However, many of us also read these books to inform ourselves about events; learn about local and global history; and to understand the arguments of people and groups with whom we disagree. While we understand that our decision to carry such books upsets some customers and staff members, we do not want to create an echo chamber of preapproved voices and ideas. It is not our mission or inclination to decide to whom our customers should listen.

The store’s owners are entirely correct to assert their right to sell books on a wide range of subjects, even if some of these books do not meet with the approval of far-left activists. Antifa takes the view that no one should be allowed to report critically on its activities. Despite their benign-sounding moniker (which is short for “antifascism”), people associated with antifa deliberately practice illiberalism: They wish to deny free speech protections to the far-right and its enablers, a group of enemies that antifa defines very broadly. Indeed, in this case, the enablers of fascism evidently include a book store that isn’t even carrying the objectionable tome on its shelves.

Few acts of censorship are as overt as a mob deciding which books other people should be allowed to read. The authoritarian behavior of Portland’s progressive activist community is a subject well worth exploring in book form.

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“Trump Was Kicked Off Twitter. Who’s Next?”

This is a new op-ed of mine in the N.Y. Times tonight (note that, as usual, the headline and the subhead were written by the editors, not by me). An excerpt:

Recall the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, which held that corporations and unions have the First Amendment right to speak about political candidates. I happen to agree with the court’s decision in that case, but four justices and a legion of commentators didn’t. Many were concerned that by using their wealth, corporations would undermine democracy and unduly influence elections and sway elected officials.

Yet Citizens United was just about whether corporations could spend money to convey their views. Now we have a few huge corporations actually blocking someone’s ability to convey his views. Plus, such blocking affects not just the speaker; it also affects the millions of people who use Facebook and Twitter to hear what their elected officials have to say.

And what happens once is likely to happen again. After this, there’ll be pressure to get Facebook, Twitter and other companies to suppress other speech, such as fiery rhetoric against the police or oil companies or world trade authorities. People will demand: If you blocked A, why aren’t you blocking B? Aren’t you being hypocritical or discriminatory? …

Companies, moreover, are run by humans, subject to normal human failings. Mr. Trump’s suspension may have been motivated by a sincere desire to resist efforts “to undermine the peaceful and lawful transition of power,” as Facebook’s chief executive, Mark Zuckerberg, put it. But other politicians might be suspended because their policies are bad for corporate profits or contrary to the owners’ political ideologies.

The standard Times op-ed deal doesn’t let me post the whole piece until 30 days after I publish it. (As you know, we moved here to Reason in part because the Washington Post was putting us behind a hard paywall; but while I don’t like having most of my stuff behind a paywall, I’m OK with having <0.1% of my items there.) But if you have N.Y. Times access, I hope you read the whole thing.

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Antifa Demands Powell’s Stop Selling Andy Ngo’s Book, Forces Store To Close Early

Screen Shot 2021-01-11 at 9.57.19 PM

Far-left activists surrounded Powell’s Books in Portland on Monday and demanded the store stop selling Unmasked: Inside Antifa’s Radical Plan to Destroy Democracy, a book about antifa written by Andy Ngo. The protests forced the store to close early.

Powell’s announced that it would not carry the book in its physical store, though it will still be available for purchase online.

“This book will not be on our store shelves, and we will not promote it,” said Powell’s in a statement. “That said, it will remain in our online catalogue. We carry books that we find anywhere from simply distasteful or badly written, to execrable, as well as those that we treasure. We believe it is the work of bookselling to do so.”

Ngo, who has documented antifa’s tactics for various conservative news websites and was once attacked by the group, tweeted video footage of the protesters. One such protester claimed that disrupting the book’s dissemination was akin to “stopping the historical publication of Hitler’s ‘Mein Kampf.'”

Powell’s noted that the store is committed to free speech, and previously received “credible bomb threats” for selling books by Salman Rushdie, whose 1988 book The Satanic Verses made the author a target of Islamic extremists:

There are books in our stores and online inventory that contain ideas that run counter to our company’s and our employees’ values of safety, equality, and justice. However, many of us also read these books to inform ourselves about events; learn about local and global history; and to understand the arguments of people and groups with whom we disagree. While we understand that our decision to carry such books upsets some customers and staff members, we do not want to create an echo chamber of preapproved voices and ideas. It is not our mission or inclination to decide to whom our customers should listen.

The store’s owners are entirely correct to assert their right to sell books on a wide range of subjects, even if some of these books do not meet with the approval of far-left activists. Antifa takes the view that no one should be allowed to report critically on its activities. Despite their benign-sounding moniker (which is short for “antifascism”), people associated with antifa deliberately practice illiberalism: They wish to deny free speech protections to the far-right and its enablers, a group of enemies that antifa defines very broadly. Indeed, in this case, the enablers of fascism evidently include a book store that isn’t even carrying the objectionable tome on its shelves.

Few acts of censorship are as overt as a mob deciding which books other people should be allowed to read. The authoritarian behavior of Portland’s progressive activist community is a subject well worth exploring in book form.

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A Wilderness of Mirror Imaging

In this episode, I interview Zach Dorfman about his excellent reports in Foreign Policy about US-China intelligence competition in the last decade. Zach is a well-regarded national security journalist, a Senior Staff Writer at the Aspen Institute’s Cyber and Technology program, and a Senior Fellow at the Carnegie Council for Ethics in International Affairs. We dive deep into his tale of how the CIA achieved remarkable penetration of the Chinese government and then lost it, inspiring China to mirror-image the Agency’s techniques and build a far more professional and formidable global intelligence network.

In the news roundup, we touch on the disgraceful demonstration-cum-riot at the Capitol this week and the equally disgraceful Silicon Valley rush to score points on the right in a way they never did with the BLM demonstrations-cum-riots last summer. Nate Jones has a different take, but we manage to successfully predict Parler’s shift from platform to (antitrust) plaintiff and to bond over my proposal to impose heavy taxes on social media platforms with more than ten million users. Really, why spend three years in court trying to break ’em up when you can get them to do it themselves and raise money to boot?

SolarWinds keep blowing. Sultan Meghji and Zach Dorfman give us the latest on the attribution to Russia, the fine difference between attack and espionage, and the likelihood of new direct or indirect cybersecurity regulation.

Pete Jeydel and Sultan cover the latest round of penalties imposed by the rapidly dwindling Trump administration on Chinese companies.

Nate dehypes the UK High Court decision supposedly ruling mass hacking illegal. He previews some Biden appointments, and we talk about the surprising rise of career talent in the new administration and why that might be happening. Nate also critiques DNI Grenell after accusations of politicization of intelligence. I’m kinder. But not when I condemn Distributed Denial of Services for joining forces with ransomware gangs to punish victims;  it’s hard to believe that anyone could make Julian Assange and Wikileaks look responsible, but DDOS does. Speaking of Julian, he’s won another Pyrrhic victory in court – likely extending his imprisonment with another temporizing win.

Download the 344th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. 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 their institutions, clients, friends, families, or pets.

 

 

 

 

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A Wilderness of Mirror Imaging

In this episode, I interview Zach Dorfman about his excellent reports in Foreign Policy about US-China intelligence competition in the last decade. Zach is a well-regarded national security journalist, a Senior Staff Writer at the Aspen Institute’s Cyber and Technology program, and a Senior Fellow at the Carnegie Council for Ethics in International Affairs. We dive deep into his tale of how the CIA achieved remarkable penetration of the Chinese government and then lost it, inspiring China to mirror-image the Agency’s techniques and build a far more professional and formidable global intelligence network.

In the news roundup, we touch on the disgraceful demonstration-cum-riot at the Capitol this week and the equally disgraceful Silicon Valley rush to score points on the right in a way they never did with the BLM demonstrations-cum-riots last summer. Nate Jones has a different take, but we manage to successfully predict Parler’s shift from platform to (antitrust) plaintiff and to bond over my proposal to impose heavy taxes on social media platforms with more than ten million users. Really, why spend three years in court trying to break ’em up when you can get them to do it themselves and raise money to boot?

SolarWinds keep blowing. Sultan Meghji and Zach Dorfman give us the latest on the attribution to Russia, the fine difference between attack and espionage, and the likelihood of new direct or indirect cybersecurity regulation.

Pete Jeydel and Sultan cover the latest round of penalties imposed by the rapidly dwindling Trump administration on Chinese companies.

Nate dehypes the UK High Court decision supposedly ruling mass hacking illegal. He previews some Biden appointments, and we talk about the surprising rise of career talent in the new administration and why that might be happening. Nate also critiques DNI Grenell after accusations of politicization of intelligence. I’m kinder. But not when I condemn Distributed Denial of Services for joining forces with ransomware gangs to punish victims;  it’s hard to believe that anyone could make Julian Assange and Wikileaks look responsible, but DDOS does. Speaking of Julian, he’s won another Pyrrhic victory in court – likely extending his imprisonment with another temporizing win.

Download the 344th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. 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 their institutions, clients, friends, families, or pets.

 

 

 

 

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via IFTTT

National Injunctions and the Erasure of the Plaintiff/Nonplaintiff Line

A few days ago the Fourth Circuit decided Hias, Inc. v. Trump, a case about an executive order regulating the resettlement of refugees (h/t How Appealing). In doing so, the court upheld a national injunction. Here is the entirety of the court’s analysis of the remedy question:

Finally, the government argues that the district court abused its discretion in issuing a nationwide injunction that encompasses the six non-party resettlement agencies as well as the plaintiffs. The government argues that the injunction is overbroad, because these non-party resettlement agencies could have, but did not, challenge the Order and Notice. We disagree with the government’s position.

District courts have broad discretion to craft remedies based on the circumstances of a case, but likewise must ensure that “a preliminary injunction is no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Roe v. Dep’t of Def., 947 F.3d 207, 231 (4th Cir. 2020) (citations and internal quotation marks omitted). A district court may issue a nationwide injunction so long as the court “mold[s] its decree to meet the exigencies of the particular case.” Id. (quoting Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017)). And a nationwide injunction may be appropriate when the government relies on a “categorical policy,” and when the facts would not require different relief for others similarly situated to the plaintiffs. Id. at 232- 33.

We conclude that the district court did not abuse its discretion in issuing a nationwide injunction. The refugee resettlement program by its nature impacts refugees assigned to all nine resettlement agencies, which place refugees throughout the country. Enjoining the Order and Notice only as to the plaintiff resettlement agencies would cause inequitable treatment of refugees and undermine the very national consistency that the Refugee Act is designed to protect.

Two things are striking here. One is that the court treats the scope of the remedy as uncontroversial. Not only is it controversial, and not only has the Supreme Court stayed national injunctions (apparently) because of their scope, but in another decision of the Fourth Circuit a few months ago, Judge Wilkinson laid out a strong case against national injunctions (see pp. 56-70 here). There are precedents of the Fourth Circuit in both directions on fundamental questions about remedial scope. But one would not know that from this opinion.

The other striking point is more important. The court’s justification for the national injunction is sufficient to justify a national injunction in every case in which someone challenges the enforcement of a federal order, rule, or statute. To ground the need for a national injunction in the fact that without the injunction, there would be differential treatment between plaintiffs and non-plaintiffs, erases the line between who is and who is not in a lawsuit. It becomes a point of no significance whether someone is represented by a plaintiff, as long as the legal norm being challenged is “categorical”–which is almost definitionally true of law.

There is certainly a logic to this. But it is the logic of thinking of litigation not so much as the resolution of a dispute between the parties, as the resolution of a dispute between a party and a legal norm (i.e., an order, rule, or statute). One could say it’s what Frothingham v. Mellon warned us about.

The case is thus a reminder that there are not just two positions–yes, national injunctions are permissible; no, they are not–but also a division in the “yes” position between those who give rationales that try to make the national injunction unusual (e.g., immigration is different) and those who give rationales that would make it typical (e.g., plaintiffs and non-plaintiffs shouldn’t be treated differently).

All three of these positions on the national injunction–”yes-typical”; “yes-unusual”; “no”–have been taken in recent decisions of the federal courts. (As I’ve argued before, I think “yes-unusual” collapses rather quickly into “yes-typical,” but I am recognizing that some courts, like some scholars, try to treat the national injunction as a permitted remedy for unusual cases.) Although I disagree with it, the Fourth Circuit’s opinion states with helpful clarity and brevity what could be called the “yes-typical” basis for a national injunction.

The choice between these positions will eventually have to be made by the Supreme Court (if not by Congress). Although the administration of President Biden will undoubtedly bring a change in refugee policy, and the political valence of the national injunction is about to shift, the question of proper remedial scope is not going away.

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National Injunctions and the Erasure of the Plaintiff/Nonplaintiff Line

A few days ago the Fourth Circuit decided Hias, Inc. v. Trump, a case about an executive order regulating the resettlement of refugees (h/t How Appealing). In doing so, the court upheld a national injunction. Here is the entirety of the court’s analysis of the remedy question:

Finally, the government argues that the district court abused its discretion in issuing a nationwide injunction that encompasses the six non-party resettlement agencies as well as the plaintiffs. The government argues that the injunction is overbroad, because these non-party resettlement agencies could have, but did not, challenge the Order and Notice. We disagree with the government’s position.

District courts have broad discretion to craft remedies based on the circumstances of a case, but likewise must ensure that “a preliminary injunction is no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Roe v. Dep’t of Def., 947 F.3d 207, 231 (4th Cir. 2020) (citations and internal quotation marks omitted). A district court may issue a nationwide injunction so long as the court “mold[s] its decree to meet the exigencies of the particular case.” Id. (quoting Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017)). And a nationwide injunction may be appropriate when the government relies on a “categorical policy,” and when the facts would not require different relief for others similarly situated to the plaintiffs. Id. at 232- 33.

We conclude that the district court did not abuse its discretion in issuing a nationwide injunction. The refugee resettlement program by its nature impacts refugees assigned to all nine resettlement agencies, which place refugees throughout the country. Enjoining the Order and Notice only as to the plaintiff resettlement agencies would cause inequitable treatment of refugees and undermine the very national consistency that the Refugee Act is designed to protect.

Two things are striking here. One is that the court treats the scope of the remedy as uncontroversial. Not only is it controversial, and not only has the Supreme Court stayed national injunctions (apparently) because of their scope, but in another decision of the Fourth Circuit a few months ago, Judge Wilkinson laid out a strong case against national injunctions (see pp. 56-70 here). There are precedents of the Fourth Circuit in both directions on fundamental questions about remedial scope. But one would not know that from this opinion.

The other striking point is more important. The court’s justification for the national injunction is sufficient to justify a national injunction in every case in which someone challenges the enforcement of a federal order, rule, or statute. To ground the need for a national injunction in the fact that without the injunction, there would be differential treatment between plaintiffs and non-plaintiffs, erases the line between who is and who is not in a lawsuit. It becomes a point of no significance whether someone is represented by a plaintiff, as long as the legal norm being challenged is “categorical”–which is almost definitionally true of law.

There is certainly a logic to this. But it is the logic of thinking of litigation not so much as the resolution of a dispute between the parties, as the resolution of a dispute between a party and a legal norm (i.e., an order, rule, or statute). One could say it’s what Frothingham v. Mellon warned us about.

The case is thus a reminder that there are not just two positions–yes, national injunctions are permissible; no, they are not–but also a division in the “yes” position between those who give rationales that try to make the national injunction unusual (e.g., immigration is different) and those who give rationales that would make it typical (e.g., plaintiffs and non-plaintiffs shouldn’t be treated differently).

All three of these positions on the national injunction–”yes-typical”; “yes-unusual”; “no”–have been taken in recent decisions of the federal courts. (As I’ve argued before, I think “yes-unusual” collapses rather quickly into “yes-typical,” but I am recognizing that some courts, like some scholars, try to treat the national injunction as a permitted remedy for unusual cases.) Although I disagree with it, the Fourth Circuit’s opinion states with helpful clarity and brevity what could be called the “yes-typical” basis for a national injunction.

The choice between these positions will eventually have to be made by the Supreme Court (if not by Congress). Although the administration of President Biden will undoubtedly bring a change in refugee policy, and the political valence of the national injunction is about to shift, the question of proper remedial scope is not going away.

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“Decryption Originalism: The Lessons of Burr,” Is Now Out

I’m pleased to say that my article, Decryption Originalism: The Lessons of Burr, has just been published by the Harvard Law Review.  Here’s the abstract:

The Supreme Court is likely to rule soon on how the Fifth Amendment privilege against self-incrimination applies to compelled decryption of a digital device. When the Court rules, the original understanding of the Fifth Amendment may control the outcome. This Article details an extraordinary case that illuminates the original understanding of the privilege and its application to compelled decryption. During the 1807 treason trial of Aaron Burr, with Chief Justice John Marshall presiding, the government asked Burr’s private secretary if he knew the cipher to an encrypted letter Burr had sent to a coconspirator. Burr’s secretary invoked the privilege against self-incrimination, leading to an extensive debate on the meaning of the privilege and an opinion from the Chief Justice.

The Burr dispute presents a remarkable opportunity to unearth the original understanding of the Fifth Amendment and its application to surprisingly modern facts. The lawyers in Burr were celebrated and experienced advocates. The Chief Justice allowed them to argue the Fifth Amendment question in exhaustive detail. And an attorney recorded the entire argument in shorthand, including dozens of legal citations to the specific pages of the authorities the lawyers invoked. The rich materials allow us to reconstruct for the first time precisely how the privilege was understood by leading lawyers and Chief Justice John Marshall soon after the Fifth Amendment’s ratification. The Article presents that reconstruction, and it concludes by applying Burr’s lessons to the modern problem of compelled decryption of digital devices such as cell phones and computers.

 

 

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“Decryption Originalism: The Lessons of Burr,” Is Now Out

I’m pleased to say that my article, Decryption Originalism: The Lessons of Burr, has just been published by the Harvard Law Review.  Here’s the abstract:

The Supreme Court is likely to rule soon on how the Fifth Amendment privilege against self-incrimination applies to compelled decryption of a digital device. When the Court rules, the original understanding of the Fifth Amendment may control the outcome. This Article details an extraordinary case that illuminates the original understanding of the privilege and its application to compelled decryption. During the 1807 treason trial of Aaron Burr, with Chief Justice John Marshall presiding, the government asked Burr’s private secretary if he knew the cipher to an encrypted letter Burr had sent to a coconspirator. Burr’s secretary invoked the privilege against self-incrimination, leading to an extensive debate on the meaning of the privilege and an opinion from the Chief Justice.

The Burr dispute presents a remarkable opportunity to unearth the original understanding of the Fifth Amendment and its application to surprisingly modern facts. The lawyers in Burr were celebrated and experienced advocates. The Chief Justice allowed them to argue the Fifth Amendment question in exhaustive detail. And an attorney recorded the entire argument in shorthand, including dozens of legal citations to the specific pages of the authorities the lawyers invoked. The rich materials allow us to reconstruct for the first time precisely how the privilege was understood by leading lawyers and Chief Justice John Marshall soon after the Fifth Amendment’s ratification. The Article presents that reconstruction, and it concludes by applying Burr’s lessons to the modern problem of compelled decryption of digital devices such as cell phones and computers.

 

 

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