Category Archives: Law: Free Speech

I Expect We’ll Get Crap Like this Daily

Donald Trump wants to ‘close up’ the Internet:

In a speech at the U.S.S. Yorktown in Mount Pleasant, South Carolina, on Monday, Trump referenced the use by ISIS of social media as a recruitment tool. He recommended a discussion with Bill Gates to shut off parts of the Internet.

“We’re losing a lot of people because of the Internet,” Trump said. “We have to go see Bill Gates and a lot of different people that really understand what’s happening. We have to talk to them about, maybe in certain areas, closing that Internet up in some way. Somebody will say, ‘Oh freedom of speech, freedom of speech.’ These are foolish people. We have a lot of foolish people.”

Well, count me as one of the foolish I guess. Although not quite so foolish as to think Bill Gates runs parts of the Internet.

PS. To those offended by the headline: what else am I supposed to call it? Bullshit?

Posted in Law: Free Speech, Law: Internet Law, Trump | 5 Comments

Microsoft Sues to Kill or Reduce ECPA Gag Orders

Microsoft filed suit today seeking a judicial declaration that 18 U.S.C. § 2705(b) violates its First Amendment Rights, and the Fourth Amendment rights of the subjects of the orders.

I think this lawsuit is a Big Deal, and Microsoft has the right of it on moral grounds. On legal grounds it has a good arguable case, although the law is not so clear that I can call it a slam dunk. This excellent article by Steve Lohr in the NYT gives the outline, and quotes a soi-disant expert.

Perhaps the most interesting, if disturbing, fact is this one:

From September 2014 to March 2016, Microsoft received 5,624 federal demands in the United States for customer information or data. Nearly half — 2,576 — were accompanied by secrecy orders.

And of those secrecy orders, more than two-thirds contained no fixed end date. I.e. unless Microsoft were to go to court later to challenge them in individual proceedings, they orders would on their own terms last forever.

The text of Microsoft’s complaint is worth reading as it is very well done. Here’s the first paragraph:

Microsoft brings this case because its customers have a right to know when the government obtains a warrant to read their emails, and because Microsoft has a right to tell them. Yet the Electronic Communications Privacy Act (“ECPA”) allows courts to order Microsoft to keep its customers in the dark when the government seeks their email content or other private information, based solely on a “reason to believe” that disclosure might hinder an investigation. Nothing in the statute requires that the “reason to believe” be grounded in the facts of the particular investigation, and the statute contains no limit on the length of time such secrecy orders may be kept in place. 18 U.S.C. § 2705(b). Consequently, as Microsoft’s customers increasingly store their most private and sensitive information in the cloud, the government increasingly seeks (and obtains) secrecy orders under Section 2705(b). This statute violates both the Fourth Amendment, which affords people and businesses the right to know if the government searches or seizes their property, and the First Amendment, which enshrines Microsoft’s rights to talk to its customers and to discuss how the government conducts its investigations—subject only to restraints narrowly tailored to serve compelling government interests. People do not give up their rights when they move their private information from physical storage to the cloud. Microsoft therefore asks the Court to declare that Section 2705(b) is unconstitutional on its face.

Update: For an argument that courts will deny Microsoft’s facial challenge on the grounds that the claims can only be asserted ‘as applied’ — very much an emphasis of recent Supreme Court decisions disfavoring as facial challenges to statutes, see Jennifer Daskal at Just Security, A New Lawsuit from Microsoft: No More Gag Orders!. It’s more pessimistic than I would be, but not implausible.

Update2: Microsoft’s statement.

Posted in Civil Liberties, Law: Constitutional Law, Law: Free Speech, Law: Internet Law, The Media | Leave a comment

Intimidating Critics Is an International Governmental Phenomenon

This British police intimidation of a blogger is much less heavy-handed than the hammer the Mayor of Peoria brought down on a parody Twitter account.

The Cambridge, UK story is, however, creepy insofar as it could be read to suggest that the police support the far-right UKIP party. Then again, the UKIP complainant was a local councillor, so maybe it really is the somewhat-less-unkind UK version of the Peoria story. After all, in Cambridge, no property was damaged or seized or destroyed. And no judges signed off on spurious warrants either.

Posted in Civil Liberties, Law: Free Speech, UK | Leave a comment

Freedom in Action

Two reminders of what freedom in action looks like:

Posted in Civil Liberties, Law: Free Speech | Leave a comment

Interviewed by Slate

I’m quoted a bit in Slate’s Florida almost certainly did not accidentally outlaw computers, which is the contrarian reaction to a bunch of stories yesterday. Katy Waldman sets the scene like this,

Back the truck up, compadres. Florida did not just inadvertently outlaw the 21st century. The Internet lit up Wednesday with reports of a new lawsuit claiming that, in its efforts to crack down on illegal gambling, the state had banned all computers, smartphones, or other devices capable of connecting to the Web. What happened: In April, Gov. Rick Scott signed a bill making illegal slot machines, which the bill defined (in admittedly billowy terms) as “any machine or device or system or network of devices” that requires “an account number, code, or other object or information” to play “games of chance or skill.”

I’m quoted accurately, and I stand by what I said about why two different canons of construction suggest the courts would read the statute narrowly… but Ms. Waldman did leave out the bit where I also said that “the statute is in fact drafted broadly and sloppily, so the suit is not frivolous.”

Update: a fuller version of what I said is at Suit: Internet cafe law also bans computers in the Tampa Bay Tribune.

Posted in Florida, Law: Free Speech, The Media | Leave a comment

Happy Flag Day

Harold Wasserman has a nice Flag Day post, celebrating the 70th anniversary of West Virginia State Bd. of Educ. v. Barnette. He calls it “a high point in U.S. Supreme Court history.”

Posted in Law: Free Speech, Law: The Supremes | Leave a comment