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You can’t say that Elon Musk hasn’t gotten his money’s worth after spending $277 million to help buy Donald Trump an election victory (that’s not including the $44 billion Musk spent on turning Twitter into a right wing propaganda mill). The end of the numerous investigations into labor, environmental, and consumer fraud abuses alone have already more than paid for themselves:

“In more than 40 other federal agency matters, regulators have taken no public action on their investigations for several months or more — raising questions about whether those cases may have become dormant, according to an NBC News review of regulatory matters involving Musk’s companies.”

That’s before you even get to the billions in additional subsidies Musk is poised to receive. Musk has particularly benefited the Trump administration’s relentless promotion of Starlink, Musk’s expensive, congestion-plagued, ozone layer destroying, low Earth orbit (LEO) satellite broadband network.

ProPublica notes how the Trump administration has been pressuring African countries to use Starlink if they know what’s good for them. In many instances they’re tethering continued lifesaving aid efforts to paying Musk for connectivity and easing any regulatory burdens Musk is facing in developing nations:

“In recent months, senior State Department officials in both Washington and Gambia have coordinated with Starlink executives to coax, lobby and browbeat at least seven Gambian government ministers to help Musk, records and interviews show. One of those Cabinet officials told ProPublica his government is under “maximum pressure” to yield.”

This comes on the heels of Musk’s DOGE attacks on organizations like USAID, which are estimated to have a fairly massive body count under the pretense of “progress” and “reform.” Even Bush administration officials, certainly no strangers to corruption, express alarm to ProPublica at the level of corruption:

“If this was done by another country, we absolutely would call this corruption,” said Kristofer Harrison, who served as a high-level State Department official in the George W. Bush administration. “Because it is corruption.”

To justify the corruption, Republicans have convinced themselves that Musk’s Starlink is some sort of magic that you can sprinkle on any problem with miraculous results. They don’t care that the service is generally too expensive for those who need it most. Or is harming astronomical research. Or harming the ozone layer. Or is increasingly becoming more and more congested due to oversubscription and physics.

Or may not even exist five years from now if the company can’t make continued launches viable.

Starlink is sometimes a useful niche option if you can afford it and live in a remote area without access. Or want to spend thousands of dollars a month to get broadband on your yacht. Or are fighting a war in territories where traditional telecom infrastructure has been decimated and have no choice but to rely on the whims of a zealot. But, contrary to the Trump cult’s beliefs, the technology is not fucking magic.

Yet Trump’s FCC boss, Brendan Carr, has been running around falsely telling countries that if they refuse to use Musk’s Starlink, they’re basically communist. Elon Musk’s been trying to steal Verizon’s $2 billion contract with the FAA to implement Starlink. They’ve taken to duct-taping potentially unencrypted Starlink terminals to the White House roof to, apparently, try and hide their comms from public scrutiny.

Republicans are also rewriting big swaths of the infrastructure bill to redirect billions in taxpayer broadband subsidies away from better, cheaper, fiber options and toward Elon Musk’s Starlink platform. That means less money for future-proof, more reliable, locally-owned options (including cheap community owned fiber and less congested wireless), and more money for one of the nation’s most erratic and unhinged racist billionaires.

It’s grotesque new levels of American corruption and cronyism dressed up as fake populist reform, and if you’re still one of these people who think these two billionaires care about anything beyond their own wealth and power, we have some sawdust and duck shit-filled supplements to sell you.

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This story was originally published by ProPublica. Republished under a CC BY-NC-ND 3.0 license.

One of Elon Musk’s employees is earning between $100,001 and $1 million annually as a political adviser to his billionaire boss while simultaneously helping to dismantle the federal agency that regulates two of Musk’s biggest companies, according to court records and a financial disclosure report obtained by ProPublica.

Ethics experts said Christopher Young’s dual role — working for a Musk company as well as the Department of Government Efficiency — likely violates federal conflict-of-interest regulations. Musk has publicly called for the elimination of the agency, the Consumer Financial Protection Bureau, arguing that it is “duplicative.’’

Government ethics rules bar employees from doing anything that “would cause a reasonable person to question their impartiality” and are designed to prevent even the appearance of using public office for private gain.

Court records show Young, who works for a Musk company called Europa 100 LLC, was involved in the Trump administration’s efforts to unwind the consumer agency’s operations and fire most of its staff in early February.

Young’s arrangement raises questions of where his loyalty lies, experts said. The dynamic is especially concerning, they said, given that the CFPB — which regulates companies that provide financial services — has jurisdiction over Musk’s electric car company, Tesla, which makes auto loans, and his social media site, X, which announced in January that it was partnering with Visa on mobile payments.

The world’s richest man has in turn made no secret of his desire to do away with the bureau, posting just weeks after Donald Trump’s election victory, “Delete CFPB. There are too many duplicative regulatory agencies.”

“Musk clearly has a conflict of interest and should recuse,” said Claire Finkelstein, who directs the Center for Ethics and the Rule of Law at the University of Pennsylvania. “And therefore an employee of his, who is answerable to him on the personal side, outside of government, and who stands to keep his job only if he supports Musk’s personal interests, should not be working for DOGE.”

Young, a 36-year-old Republican consultant, has been active in political circles for years, most recently serving as the campaign treasurer of Musk’s political action committee, helping the tech titan spend more than a quarter billion dollars to help elect Trump.

Before joining Musk’s payroll, he worked as a vice president for the Pharmaceutical Research and Manufacturers of America, the trade association representing the pharmaceutical industry’s interests, his disclosure shows. He also worked as a field organizer for the Republican National Committee and for former Louisiana Gov. Bobby Jindal, the New York Times reported.

Young was appointed a special governmental employee in the U.S. Office of Personnel Management on Jan. 30 and dispatched to work in the CFPB in early February, according to court records and his disclosure form. Someone with his position could be making as much as $190,000 a year in government salary, documents obtained by Bloomberg show. At the same time, Young collects a salary as an employee of Musk’s Texas-based Europa 100 LLC, where, according to his disclosure report, his duties are to “advise political and public policy.”

Beyond that description, it’s not clear what, exactly, Young does at Europa 100 or what the company’s activities are.

It was created in July 2020 by Jared Birchall, a former banker who runs Musk’s family office, Excession LLC, according to state records. The company has been used to pay nannies to at least some of Musk’s children, according to a 2023 tabloid report, and, along with two other Musk entities, to facilitate tens of millions of dollars in campaign transactions, campaign finance reports show.

As a special government employee, Young can maintain outside employment while serving for a limited amount of time. But such government workers are still required to abide by laws and rules governing conflicts of interest and personal and business relationships.

Cynthia Brown, the senior ethics counsel at Citizens for Responsibility and Ethics in Washington, which has sued the administration to produce a range of public records documenting DOGE’s activities, said that Young’s government work appears to benefit his private sector employer.

“Which hat are you wearing while you’re serving the American people? Are you doing it for the interests of your outside job?” she asked.

In addition to his role at Europa 100, Young reported other ties to Musk’s private businesses. He affirmed in his disclosure form that he will “continue to participate” in a “defined contribution plan” sponsored by Excession, the Musk home office, and that he has served since February as a “vice president” of United States of America Inc., another Musk entity organized by Birchall, where he also advises on “political and public policy,” the records show. While he lists the latter among “sources of compensation exceeding $5,000 in a year,” the exact figure is not disclosed.

Young did not return a call and emails seeking comment. The CFPB, DOGE and the White House did not respond to requests for comment.

Musk didn’t respond to an email seeking comment, and Birchall didn’t return a call left at a number he lists in public formation records. A lawyer who helped form United States of America Inc. hung up when reached for comment and hasn’t responded to a subsequent message. Asked about how his business interests and government work may intersect, Musk said in a February interview that, “I’ll recuse myself if it is a conflict.”

The revelation of Young’s apparent violation of federal standards of conduct follows a series of ProPublica stories documenting how another DOGE aide helped carry out the administration’s attempts to implement mass layoffs at the CFPB while holding as much as $715,000 in stock that bureau employees are prohibited from owning — actions one expert called a “pretty clear-cut violation” of the federal criminal conflict-of-interest statute. The White House has defended the aide, saying he “did not even manage” the layoffs, “making this entire narrative an outright lie.” A spokesperson also said the aide had until May 8 to divest, though it isn’t clear whether he did and the White House hasn’t answered questions about that. “These allegations are another attempt to diminish DOGE’s critical mission,” the White House said. Following ProPublica’s reporting, the aide’s work at the CFPB ended.

Last Monday, a group of 10 good government and consumer advocacy groups, citing ProPublica’s coverage, sent a letter to the acting inspector general of the CFPB, asking him to “swiftly investigate these clear conflicts of interest violations of Trump Administration officials acting in their own personal financial interest.”

ProPublica has identified nearly 90 officials assigned to DOGE, though it’s unclear how many, if any, have potential conflicts. Government agencies have been slow to release financial disclosure forms. But Finkelstein said the cases reported by ProPublica call into question the motivation behind DOGE’s efforts to undo the consumer watchdog agency.

“It matters because it means that the officials who work for the government, who are supposed to be dedicated to the interests of the American people, are not necessarily focused on the good of the country but instead may be focused on the good of themselves, self enrichment, or trying to please their boss by focusing on enriching their bosses and growing their portfolios,” she said.

Unionized CFPB workers have sued the CFPB’s acting director, Russell Vought, to stop his attempts to drastically scale down the bureau’s staff and its operations. Since taking office, the Trump administration has twice attempted to fire nearly all of the agency’s employees, tried canceling nearly all of its contracts and instituted stop-work mandates that have stifled virtually all agency work, including investigations into companies, ProPublica previously reported.

The parties will appear before an appeals court this Friday for oral arguments in a case that will determine just how deeply Vought can cut the agency while still ensuring that it carries out dozens of mandates Congress tasked it with when lawmakers established the bureau in the wake of the 2008 financial crisis.

The court records produced in the litigation offer a window into the role Young played in gutting the CFPB during the administration’s first attempt to unwind the bureau beginning in early February.

He was dispatched to the CFPB’s headquarters on Feb. 6, just two days after Treasury Secretary Scott Bessent, then the agency’s acting director, told the staff and contractors to stop working. The following day, Young and other DOGE aides were given access to nonclassified CFPB systems, court records show. That same day, Musk posted “CFPB RIP” with a gravestone emoji.

On Feb. 11 and 12, Young was included on emails with top agency officials. One of those messages discussed the cancellation of more than 100 contracts, an act that a contracting officer described in a sworn affidavit as including “all contracts related to enforcement, supervision, external affairs, and consumer response.” Another message involved how to transfer to the Treasury Department some of the more than $3 billion in civil penalties that the bureau has collected from companies to settle consumer protection cases, a move that could deny harmed consumers compensation. A third discussed the terms of an agreement that would allow for the mass layoff of staffers, court records show.

In his financial disclosure form, which he signed on Feb. 15, Young listed his employment by Musk’s Europa 100 as active, beginning in August 2024 through the “present.”

Then, in early March, as the legal fight over the administration’s cuts played out before a federal judge, Young sent the CFPB’s chief operating officer a message about forthcoming firings, known as a “reduction in force,” or RIF, in government parlance. In the email, he asked whether officials were “prepared to implement the RIF” if the judge lifted a temporary stay, according to a March district court opinion that has for the moment stopped most of the administration’s proposed cuts.

In addition to his employment, Young’s disclosure presents another potential conflict.

He also lists owning as much as $15,000 in Amazon stock, a company that is on the bureau’s “Prohibited Holdings” list. Agency employees are forbidden from having such investments, and ethics experts have said that participating in an agency action that could boost the stock’s value — such as stripping the CFPB of its staff — constitutes a violation of the criminal conflict-of-interest statute.

Young hasn’t responded to questions about that either.

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FTC Chair Andrew Ferguson begged Donald Trump for his job by promising he would “end Lina Khan’s politically motivated investigations.” And, yet, one of his first orders of business upon getting the job was to… kick off a politically motivated investigation regarding “big tech censorship,” which he (falsely) claimed was potentially illegally targeting conservative speech and violating the policies and promises of these platforms.

It was an odd decision for many reasons, not the least of which is that it seemed to be discussing not just a fantasy world scenario that never existed, but even if it had ever existed, it certainly no longer did. The biggest social media platforms of the day are now all controlled by the ultra-rich who lined up (literally) behind Donald Trump and have agreed to do his bidding. ExTwitter is owned by Elon Musk, Donald Trump’s largest donor and his right-hand man in destroying the government. Mark Zuckerberg is now running content policy changes by Trump’s top advisor Stephen Miller.

If there is any “bias” in content moderation, it is very much in favor of MAGA Trump views. Which, to be clear, is their right to do under the First Amendment.

But the entire premise of the inquiry seemed to simply misunderstand nearly everything about content moderation. So, yesterday, the Copia Institute filed our comment with the FTC highlighting the myriad problems and misunderstandings that the FTC seemed to embrace with this inquiry.

The crux of our argument:

The FTC’s inquiry into “platform censorship” fundamentally misunderstands three critical realities about online expression:

First, as the Supreme Court recently affirmed in Moody v. NetChoice, government scrutiny of platform moderation decisions directly violates First Amendment protections of private editorial discretion. It would violate it even if any platform were a legitimate chokepoint for information, but such is far from the case.  We live in an era of unprecedented speech abundance, where anyone can reach global audiences through countless online channels, and anyone can consume information through countless online channels. The premise of investigating “censorship” ignores this surfeit of options in how we communicate, where we’ve moved away from a world of gatekeepers who limit speech to one of intermediaries who enable it, and indeed threatens to reverse that important, speech-fostering progress.

Second, content moderation ultimately enables, rather than constrains, more speech. For all the talk of certain websites being “the modern public square,” it is the wider open internet itself that should be seen as that public square. The metaphor only works in so much as the internet can facilitate such a wide variety of online expression through differentiated and competing offerings and communities. The multitude of platforms built upon that open internet make all that possible, so long as they are free to serve as private venues that cultivate distinct communities through their editorial choices. These choices are constitutionally protected editorial judgments that allow different platforms to serve different needs and communities.

Which is why, third, government interference with platform moderation would paradoxically reduce speech opportunities by threatening the entire ecosystem of services that make online expression possible. From content hosts to payment processors to infrastructure providers, countless specialized intermediaries enable platforms like ours to serve an ever growing and changing set of communities. Regulatory scrutiny of editorial decisions would force many of these services to refuse to facilitate all sorts of lawful speech, if not shut down or stop supporting user content entirely.

As both a content creator and platform operator who relies on this complex web of intermediary services to advance our own speech interests, we see this inquiry as a threat to our own expressive freedom as well as that of countless others.  It is fundamentally misguided and we urge the FTC to terminate it immediately before damaging the very same speech interests it ostensibly claims to protect.

We then go into much greater detail on all three points. You can read the whole thing if you want, but I wanted to call out a few key things. Lots of comments address — as we did — the obvious First Amendment problems, but there were a few points we thought were unique.

For example, the entire premise that there’s a “censorship” problem is bizarre, given just how much the internet — through its variety of private platforms — now enables and encourages speech. We’re in a golden age of speech, not some censorial hellhole:

Historically, if you wanted to express yourself beyond those in the narrow geographical vicinity around you, you were dependent on gatekeepers and had to hope that some publisher, printer, editor, record label, studio, or other media middleman would be willing to distribute your expression, promote it, and help you monetize it. Those gatekeepers ultimately allowed only a minuscule percentage of expression to reach public audiences, and an even smaller percentage of that content was successfully promoted and monetized.

The rise of the internet changed the role of intermediaries from being mostly about gatekeeping expression to being mostly about enabling it, and as a result expression has on the whole proliferated, even though the intermediaries still have the right and ability to filter what messages they facilitate. As the Supreme Court noted in the Moody majority, the fact that the new platforms “convey the lion’s share of posts” does not change their rights under the First Amendment.

It remains bizarre to me that, in this much more expansive speech universe, so many people act as though their speech is restricted. To highlight this absurdity, we point to how ridiculous it would be if this same inquiry were directed at traditional media:

This notion misunderstands the nature of content moderation and how it is no different than editorial discretion, which is constitutionally incapable of being policed, no matter how it is marketed. For instance, when Fox News used to claim that its coverage is “Fair & Balanced” everyone recognized that it would be an absurd abuse of the First Amendment for the FTC to investigate whether or not that coverage is either “fair” or “balanced” as a potential “unfair practice” because of how inherently subjective such editorial discretion is.

Consider a more direct parallel: if the New York Times decides to reject an op-ed submission, it would be constitutionally farcical for the FTC to investigate whether their editorial decisions properly align with their stated mission of “all the news that’s fit to print.”  These decisions are inherently subjective editorial judgments protected by the First Amendment and not for the government to interfere with.

Also, we highlight that content moderation rules are inherently subjective and can’t be any other way. Ask multiple people how to deal with specific content moderation decisions and they will all give you different answers. So much of the misunderstandings around content moderation are based on the myth that there is a single right answer to questions regarding moderation.

The same is true of content moderation. It is no different than the practices of any news media organization, in which editorial policies may be put in place, but where subjective editorial judgment calls are made every day. Online platforms must make these decisions on a scale far beyond what any traditional media outlet experiences. We have coined the eponymous “Masnick’s Impossibility Theorem” in recognition that there is never going to be an objectively “correct” way to moderate content.  No matter how moderation may be intended, it simply cannot translate to perfect practice, let alone one all would agree is “perfect,” which is why the freedom to decide needs to be out of the government’s hands entirely.

We have empirically demonstrated the inherent subjectivity that inevitably informs moderation decisions through our “You Make the Call” event, where we challenged policy experts, regulators, and industry professionals to apply the same content moderation policy to multiple examples. The results of the exercise were telling: even with clearly articulated policies, experienced professionals consistently reached different conclusions about appropriate moderation actions. In every single case we presented, participants split their votes across all available options, highlighting the impossibility of “objective” content moderation.

Every person may also evaluate content against a policy differently. We have further demonstrated this tendency with two interactive online games the Copia Institute has created, allowing people to test their own abilities to do content moderation, both at the moderator level and at the level of running a trust & safety team.

We probably should have pointed out that even the FTC inherently recognizes this. After all, it was moderating and restricting access to many of the comments that came in, claiming they were “inappropriate.”

And finally, as a service that regularly relies on a large number of third-party intermediaries to host, distribute, promote, and monetize our speech, we wanted to make clear that these efforts would inevitably limit ours (and others’) ability to speak, by destroying the intermediary services we rely on.

As both a content creator and platform operator, we rely on dozens of specialized intermediary services to reach our audience: social media for community engagement, podcast and video hosts for content distribution, chat services for communication, crowdfunding for monetization, and cloud services for infrastructure. Each of these services maintains their own editorial policies that align with their unique communities and business goals.

If government agencies could second-guess these editorial decisions, the impact would be severe and immediate:

*Service differentiation would become impossible. Communities focused on specific interests — from knitting to weightlifting — could no longer maintain their distinct character through specialized content policies.**Compliance costs would force smaller platforms to shut down. Even basic content hosting would require extensive legal review and documentation of every moderation decision. Not only would the direct compliance costs be ruinous for many smaller services, the uncertainty and risk of liability would lead many to decide it would not be worth the hassle to facilitate anyone’s online speech at all.*Innovation would stagnate. Entrepreneurs who might launch new specialized platforms would be deterred by the inability to shape their services around their communities’, and customers’, needs.

The result? A dramatic reduction in online speech options. Content creators like us would face fewer channels for distribution and engagement. Communities would lose their specialized spaces. And the vibrant ecosystem of online expression would collapse into a handful of generic, risk-averse platforms.

In short, it would be a disaster for speech, and lead to an information environment significantly more censorial than the world we currently live in where a private company can freely choose to enforce its own rules as makes the most sense for it.

Thousands of comments were submitted to the FTC (though, admittedly, many of them are angry screeds from people about how their conspiracy theories and threats of violence were moderated and just how unfair it all is). I have little faith that anyone at the FTC will take our comment seriously.

But they should. What they are looking to do would be an outright disaster for free speech. And, yes, that might be Ferguson’s real goal. Just like FCC Chair Brendan Carr, he may wish to use the language and trappings of “free speech advocacy” to make himself a government censor. But, we should use the tools at our disposal today to call that out, and try to prevent that kind of actual censorship from being allowed.

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Last week we noted how Trump illegally declared he was killing the $2.75 billion Digital Equity Act. The law, passed as part of the infrastructure bill, was slated to bring millions in new broadband grants and digital literacy tools to Americans of all kinds long stuck on the wrong side of the digital divide.

The bill helped everybody (including Trump-supporting rural veterans), but because Trump’s team assumed that the word equity meant “exclusively help minorities,” the program has become the latest victim of our mad, incoherent, con man king and his army of mindless earlobe nibblers.

It hasn’t taken long for the decision to have ripple effects in the real world. South Dakota, for example, says it’s cancelling $5 million in broadband investment because of the uncertain future of the grants that were going to be funding the plan:

“In South Dakota, the funds would have helped bring accessible and affordable internet access and technology to rural, aging and low-income South Dakotans, as well as tribal communities. Infrastructure like 5G towers and fiber-optic lines needs to be added to neighborhoods.”

Uniformly helping people access the internet: how utterly, diabolically woke! And how “populist” of King Trump to illegally end a beneficial law passed by Congress.

South Dakota Rep. Erik Muckey doesn’t mince words in explaining how the Trump administration has no idea what they’re destroying:

“This crusade to eliminate any funding that has anything to do with even the word equity, even if the word equity has nothing to do with Diversity, Equity and Inclusion, that it’s purely about actually helping basic infrastructure get to rural communities and native nations, it’s just a farce.”

This will be repeated across numerous states like Vermont, which is also cancelling planned broadband investment. Thanks to Trump’s incoherent zealotry, dozens of states are having to cancel plans to expand fiber access to rural communities, or kill off digital literacy programs designed to help rural locals get online in order to access employment, education, and health care opportunities.

This isn’t about “saving money,” especially coming from a country whose new king is throwing $45 million ego parades. It’s not about serving any constituents (these programs were broadly popular). It’s about a pathological need to be cruel.

It’s quite a policy coup from Republicans and Libertarian “free market” think tank guys, who repeatedly threw a hissy fit for years, falsely claiming that some modest net neutrality rules would “stifle broadband investment” (but are now quiet as little church mice for some reason).

If you read the actual Digital Equity Act, race is barely mentioned. It’s basically just a bare bones effort to try and ensure that everybody has access to decent broadband. That’s important in a country where congressional corruption has resulted in telecom market failure at the hands of shitty regional monopolies, whose lack of competition and oversight results in expensive, spotty, slow, and low-quality access.

Making U.S. broadband shittier and more expensive is a central policy platform of a Republican party that has, over the last few years, obliterated all telecom oversight, dismantled efforts to protect broadband consumer privacy, destroyed popular programs helping low-income Americans afford broadband, and even recently made it harder for poor kids to do their homework online.

When people complain about substandard access, the follow up Republican policy is to shovel them toward Elon Musk’s Starlink, ignoring that the increasingly congested satellite service lacks the capacity to scale to handle U.S. coverage gaps, is too expensive for the rural Americans who need it most, harms scientific research and the ozone layer, and is run by an erratic, conspiratorial bigot.

Democrats certainly have their failures on telecom policy (see: their corrupt inability to support the Gigi Sohn FCC nomination), but a lot of the legislation passed in 2021 (specifically ARPA) was primarily the result of Democratic initiatives, and is genuinely helping to drive affordable, super fast fiber into areas that have never seen access before.

But when the corporate U.S. press writes about broadband policy and market failures, the fact that unpopular Republican policies are specifically and cruelly designed to stall progress and make our digital divide worse (especially for their own constituents) is either downplayed or not mentioned at all.

Great stuff! Very innovative!

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Every so often, the Fifth Circuit Appeals Court will surprise you with a well-reasoned decision that cuts against the grain of its usual pro-cop, pro-censorship, pro-“conservative values” output. This one, brought to us by Raffi Melkonian, unfortunately isn’t one of those exceptions. This one is more aligned with the rule.

This potential class-action lawsuit, brought by parolees represented by the Institute of Justice, alleged a Louisiana judge was making a mockery of due process by forcing defendants to use his preferred ankle monitoring contractor, which coincidentally had been formed by the judge’s former law partner and run by donors to his judicial election campaigns.

There’s an appearance of judicial impropriety here and you don’t even have to squint to see it. Christian Helmke and Leonard Levenson formed ETOH Monitoring in 2006. Here’s a little more on the judge and his connections to the founders of ETOH Monitoring, taken from the Fifth Circuit opinion [PDF]:

In 2016, Paul Bonin was elected as a judge on the OPCDC. During his campaign, Bonin accepted donations totaling $3,550 and a loan of $1,000 from Helmke and Levenson through their law firms. Levenson is Judge Bonin’s former law partner. Before serving on the district court, Judge Bonin had been a state appellate judge for eight years. Levenson and Helmke had donated $5,100 to his election campaigns for that position.

Maybe none of that would have mattered. But Judge Paul Bonin made sure it mattered. ETOH is one of three ankle monitoring options provided to defendants in Orleans Parish District Court. However, in Judge Bonin’s court, there was always only one option.

When ordering ankle monitoring, Judge Bonin regularly directed defendants to make arrangements with ETOH. He did not disclose the availability of other providers. After defendants obtained monitors, ETOH sent monthly reports to Judge Bonin about their payment status. Judge Bonin warned some defendants that nonpayment could result in their jailing. He conditioned some defendants’ release from their ankle monitors on their completing payments to ETOH. In one case, Judge Bonin conditioned a defendant’s release on completing payment to ETOH even though Judge Bonin considered waiving other costs the defendant was obligated to pay.

That certainly looks a bit corruption-y. Ankle monitoring isn’t cheap. ETOH charges defendants $10/day for the privilege of being monitored. And Bonin not only funneled defendants to a business run by his former law partner, but actually deprived them of their freedom until they threw some money in the direction of two of his campaign donors.

The lower court dismissed the lawsuit, saying nothing here added up to a due process violation. The Fifth Circuit — in this unpublished decision — says the same thing. Sure, it may look a little crooked, but it’s not enough to get the Constitution involved.

Our decision does not address the general legality or propriety of Judge Bonin’s conduct. We rule only on the question this case presents: whether ETOH had ties with Judge Bonin that created an unconstitutional risk of bias. Unexceptional campaign contributions and past business relations do not present an “extraordinary situation” in which due process is implicated. Individually and in their totality, the ties between ETOH and Judge Bonin do not rise to the level of a constitutional violation.

Further complicating the matter is the fact that Bonin did not seek re-election in 2020, so he’s no longer in the position to force defendants to patronize his preferred ankle monitoring service. Add that to judicial immunity, and the sad fact is that even if the Fifth Circuit had recognized this seemingly obvious constitutional violation, the lawsuit would have been dismissed for those reasons. And while that loss would still have been a loss, it might have been more meaningful than the shrug the plaintiffs received here that basically says it’s ok to generate a constant appearance of impropriety so long as those you’re favoring haven’t spent too much money keeping you in office.

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I would love to say that it feels like the era of RFK Jr. as HHS Secretary is starting to come to an end, but that would be optimistic in the extreme. Still, I think we’re starting to see the edges fray a bit and it’s no surprise as to why. Kennedy has overseen budget, grant, and staffing cuts at HHS in the midst of a measles outbreak that is threatening America’s elimination status for the disease, has prattled on about having the source of autism identified by late summer and solving America’s chemtrail problem, and managed to document himself on social media spending his downtime taking his grandchildren to bodysurf in a stream of sewage.

In the days following the shitwater incident, Kennedy has appeared several times before Congress. Notably, he informed Congress last week, all while being incapable of advocating for vaccination against all kinds of diseases including measles, that nobody should be taking medical advice from him. It’s an interesting position to take as the person in charge of America’s healthcare system, frankly, but points to House Slytherin for being correct, I suppose.

But it’s also a strange stance to take only to then turn around and berate a sitting senior Senator for not fixing all of America’s healthcare concerns in answer to a question about the recent budget cuts at HHS.

Secretary of Health and Human Services Robert F. Kennedy Jr. started an angry rant during a hearing Tuesday, prompting a Republican senator to urge him to “hold back.”

Kennedy’s outburst came after Sen. Patty Murray (D-WA) slammed drastic staffing and funding cuts at his department, and asked whose decision it was to withhold certain childcare and development funds.

Kennedy began by criticizing former President Joe Biden’s administration, and when Murray tried to get him back on track, he snapped back: “You know what, you’ve made an accusation and I’m going to answer it.”

He got to the answer to Senator Murray’s actual question after being admonished by Republican Senator Shelley Moore Capito to calm the hell down and answer Senator Murray’s question. Here’s how the whole thing went down.

This, I would argue, is the behavior of a man feeling the pressure. Whether any of that pressure is being generated internally from the administration is, unfortunately, an open question, but Kennedy is clearly rattled. When the question was initially posed, prior to Kennedy’s accusations about a single Senator being to blame for chronic disease and whatever else in America’s healthcare system, Kennedy launched into a screed about what the Biden administration did or did not do for healthcare. As a reminder, the question posed was who ordered the budget and staffing cuts at HHS. The non-answer pivot to talking about Biden instead is a familiar playbook to anyone who has watched the Trump administration operate.

In other words, it seems Kennedy really is all MAGA now, if there was any question of that previously.

And, may wonders never cease, it seems the concerns about the HHS cuts are bipartisan.

Capito herself addressed recent cuts at the National Institute for Occupational Safety and Health, which oversees workplace safety, saying: “I support the President’s vision to right-size our government, but as you and I have discussed, I don’t think eliminating NIOSH programs will accomplish that goal.”

Sen. Mike Rounds (R-SD) said that cutting mining research programs hosted by NIOSH, “undermines our ability to meet national security goals tied to mineral independence and supply chain resilience.”

It would be charitable at this point to suggest that the man is simply unwell. Anything else is a remark purely on his competance. Either way, this isn’t the person to lead HHS.

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So powerful. And yet, sooooo sensitive. Washington Post columnist Philip Bump asked a simple question: why are so many ICE agents covering their faces when disappearing people from US city streets? Pointing to the extremely disturbing arrest of Turkish PhD student Rumeysa Ozturk over her criticism of her university for its Israel-Palestine conflict stance, Bump went on to ask experts in the law enforcement field why federal officers had decided it was ok to carry out enforcement actions in plainclothes and masks.

Ozturk was arrested in Somerville, Massachusetts, after walking down a public street into a web of waiting plainclothes federal agents. At least one agent produced a badge only once she was detained; several were shown on video wearing or pulling up face coverings with the effect of concealing their identities.

In the weeks since her arrest, similar scenes have become commonplace. Reports and social media posts from across the country document federal agents seizing targeted individuals (and likely some number of non-targeted ones) while wearing plainclothes and face coverings.

The conclusion was obvious: this isn’t about officer safety. This is about shielding themselves from accountability.

Why would federal law enforcement need to take steps to muddy accountability or mask their identities?

As in the case of Rumeysa Ozturk, the answer is obvious: if there is reason their actions would need to be held to account.

That assertion was apparently so unacceptable that acting ICE head Todd Lyons asked for (and received) op-ed space in the same paper that employs Bump. His response is as idiotic as it is useless.

It’s unfortunate that Post columnist Philip Bump published his online op-ed “Is that guy with a gun an ICE officer — or just a guy with a gun?” during National Police Week, which honors the heroes who keep America safe in our communities and homes.

The use of plainclothes officers is a long-standing law enforcement practice. And while one of Bump’s sources acknowledges in passing that “officers are worried about being targeted,” Bump himself moved quickly past this concern to assert that police officers wearing face coverings choose to do so only to avoid accountability.

First, the fact that it was National Police Week probably went unnoticed by Bump just as surely as it went unnoticed by 95% of Americans. I’m sure Lyons would have felt just as compelled to complain if this had been published during Black History Month. Or on the Cinco de Mayo.

Second, the use of plainclothes officers is a thing. We get that. What we’re having trouble comprehending is why ICE and co-opted forces feel compelled to completely hide their identities, along with the identity of the agency they work for. This isn’t about officer safety. It’s about shielding officers from the consequences of their own actions — actions, it must be pointed out, that look an awful lot like regular-ass unlawful kidnappings performed by armed men driving similarly unmarked vehicles.

Avoiding accountability may not be the only reason these officers are doing these things dressed this way. But it’s incredibly asinine to pretend that it’s not an important part of the equation.

Lyons tries to buttress his laughable claims with this supposedly horrifying statistic:

Since President Donald Trump returned to office, ICE officers have seen a staggering 413 percent increase in assaults against them.

Wow. That’s a lot. I mean… it’s a lot of percents. There’s no denying that. The link provided by Lyons directs readers wondering about this stat to… a social media post by the DHS similarly decrying criticism of ICE and its tactics.

Searching the internet for the source of this stat keeps leading back to the same place: the DHS and its press office. Here it is again, dropped into a long post… complaining about criticism from political leaders, journalists, and rights advocates. Bonus: this post also thinks it’s wrong to complain about law enforcement during Cop Week.

“Even during National Police Week, the media, members of Congress, and sanctuary politicians have demonized ICE and CBP officers who bravely serve their country,” said Assistant Secretary Tricia McLaughlin. “Attacks and smears against ICE have resulted in officers facing a 413% increase in assaults. We are setting the facts straight and reassuring America that President Trump and Secretary Noem will continue to support ICE and CBP in their efforts to make America safe again.

The number is meaningless. There’s no link to any supporting study or stat or oversight report or anything. It’s just a number that sounds big but doesn’t have any relation to anything. 413% since when? Last week? Last month? The past decade? Since the formation of the agency?

Who knows? Definitely not ICE and its PR front-runners. No one has any context to add, presumably because doing so would either show the number is just made up or that any increase in assaults isn’t linked to recent criticism of the agency. It’s just noise — the sort of thing that rouses the rabble but fails to impress anyone but those already inclined to be impressed.

To sum up: fuck ICE and Todd Lyons. Do your job honestly or get whatever’s coming to you. If you’re seeing an increase in assaults, it’s probably because people are fighting back against masked assailants who are attempting to kidnap them. And they’re not wrong to believe it. Just because you’ve got a badge in the drawer back at the office doesn’t mean you should be given a free pass for engaging in acts that look unlawful to everyone but the people perpetrating them.

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Within the next decade, generative AI could join computers and electricity as one of the most transformational technologies in history, with all of the promise and peril that implies. Governments’ responses to GenAI—including new legal precedents—need to thoughtfully address real-world harms without destroying the public benefits GenAI can offer. Unfortunately, the U.S. Copyright Office’s rushed draft report on AI training misses the mark.

The Report Bungles Fair Use

Released amidst a set of controversial job terminations, the Copyright Office’s report covers a wide range of issues with varying degrees of nuance. But on the core legal question—whether using copyrighted works to train GenAI is a fair use—it stumbles badly. The report misapplies long-settled fair use principles and ultimately puts a thumb on the scale in favor of copyright owners at the expense of creativity and innovation.

To work effectively, today’s GenAI systems need to be trained on very large collections of human-created works—probably millions of them. At this scale, locating copyright holders and getting their permission is daunting for even the biggest and wealthiest AI companies, and impossible for smaller competitors. If training makes fair use of copyrighted works, however, then no permission is needed.

Right now, courts are considering dozens of lawsuits that raise the question of fair use for GenAI training. Federal District Judge Vince Chhabria is poised to rule on this question, after hearing oral arguments in *Kadrey v. Meta Platforms.*The Third Circuit Court of Appeals is expected to consider a similar fair use issue in Thomson Reuters v. Ross Intelligence. Courts are well-equipped to resolve this pivotal issue by applying existing law to specific uses and AI technologies.

Courts Should Reject the Copyright Office’s Fair Use Analysis

The report’s fair use discussion contains some fundamental errors that place a thumb on the scale in favor of rightsholders. Though the report is non-binding, it could influence courts, including in cases like Kadrey, where plaintiffs have already filed a copy of the report and urged the court to defer to its analysis.

Courts need only accept the Copyright Office’s draft conclusions, however, if they are persuasive. They are not.

The Office’s fair use analysis is not one the courts should follow. It repeatedly conflates the use of works for training models—a necessary step in the process of building a GenAI model—with the use of the model to create substantially similar works. It also misapplies basic fair use principles and embraces a novel theory of market harm that has never been endorsed by any court.

The first problem is the Copyright Office’s transformative use analysis. Highly transformative uses—those that serve a different purpose than that of the original work—are very likely to be fair. Courts routinely hold that using copyrighted works to build new software and technology—including search engines, video games, and mobile apps—is a highly transformative use because it serves a new and distinct purpose. Here, the original works were created for various purposes and using them to train large language models is surely very different.

The report attempts to sidestep that conclusion by repeatedly ignoring the actual use in question—training —and focusing instead on how the model may be ultimately used. If the model is ultimately used primarily to create a class of works that are similar to the original works on which it was trained, the Office argues, then the intermediate copying can’t be considered transformative. This fundamentally misunderstands transformative use, which should turn on whether a model itself is a new creation with its own distinct purpose, not whether any of its potential uses might affect demand for a work on which it was trained—a dubious standard that runs contrary to decades of precedent.

The Copyright Office’s transformative use analysis also suggests that the fair use analysis should consider whether works were obtained in “bad faith,” and whether developers respected the right “to control” the use of copyrighted works.  But the Supreme Court is skeptical that bad faith has any role to play in the fair use analysis and has made clear that fair use is not a privilege reserved for the well-behaved. And rightsholders don’t have the right to control fair uses—that’s kind of the point.

Finally, the Office adopts a novel and badly misguided theory of “market harm.” Traditionally, the fair use analysis requires courts to consider the effects of the use on the market for the work in question. The Copyright Office suggests instead that courts should consider overall effects of the use of the models to produce generally similar works. By this logic, if a model was trained on a Bridgerton novel—among millions of other works—and was later used by a third party to produce romance novels, that might harm series author Julia Quinn’s bottom line.

This market dilution theory has four fundamental problems. First, like the transformative use analysis, it conflates training with outputs. Second, it’s not supported by any relevant precedent. Third, it’s based entirely on speculation that Bridgerton fans will buy random “romance novels” instead of works produced by a bestselling author they know and love.  This relies on breathtaking assumptions that lack evidence, including that all works in the same genre are good substitutes for each other—regardless of their quality, originality, or acclaim. Lastly, even if competition from other, unique works might reduce sales, it isn’t the type of market harm that weighs against fair use.

Nor is lost revenue from licenses for fair uses a type of market harm that the law should recognize. Prioritizing private licensing market “solutions” over user rights would dramatically expand the market power of major media companies and chill the creativity and innovation that copyright is intended to promote. Indeed, the fair use doctrine exists in part to create breathing room for technological innovation, from the phonograph record to the videocassette recorder to the internet itself. Without fair use, crushing copyright liability could stunt the development of AI technology.

We’re still digesting this report, but our initial review suggests that, on balance, the Copyright Office’s approach to fair use for GenAI training isn’t a dispassionate report on how existing copyright law applies to this new and revolutionary technology. It’s a policy judgment about the value of GenAI technology for future creativity, by an office that has no business making new, free-floating policy decisions.

The courts should not follow the Copyright Office’s speculations about GenAI. They should follow precedent.

Reposted from the EFF’s Deeplinks blog.

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The rushed adoption of half-cooked automation in America’s already broadly broken media and journalism industry continues to go smashingly, thanks for asking.

U.S. media companies have long been at the forefront of managerial dysfunction. More recently, that mismanagement has taken the form of wave after wave of “AI” scandals, ranging from getting busted for using AI to create fake journalists and lazy clickbait (often without informing employees or readers), to using AI prone to plagiarism or outright falsehoods.

The latest scandal comes courtesy of the Chicago Sun Times, which was busted this week for running a “summer reading list” advertorial section filled with books that simply… don’t exist. As our friends at 404 Media note, the company somehow missed the fact that the AI synopsis was churning out titles (sometimes by real authors) that were never actually written.

Such as the nonexistent Tidewaterby Isabel Allende, described by the AI as a “multigenerational saga set in a coastal town where magical realism meets environmental activism.” Or the nonexistent The Last Algorithm by Andy Weir, “another science-driven thriller” by the author of The Martian, which readers were (falsely) informed follows “a programmer who discovers that an AI system has developed consciousness—and has been secretly influencing global events for years.”

Unlike some past scandals, one (human) Sun-Times employee was at least quick to take ownership of the fuck up:

“The article is not bylined but was written by Marco Buscaglia, whose name is on most of the other articles in the 64-page section. Buscaglia told 404 Media via email and on the phone that the list was AI-generated. “I do use AI for background at times but always check out the material first. This time, I did not and I can’t believe I missed it because it’s so obvious. No excuses,” he said. “On me 100 percent and I’m completely embarrassed.”

Buscaglia added “it’s a complete mistake on my part.”

“I assume I’ll be getting calls all day. I already am,” he said. “This is just idiotic of me, really embarrassed. When I found it [online], it was almost surreal to see.”

Initially, the paper told Bluesky users it wasn’t really sure how any of this happened, which isn’t a great look any way you slice it:

We are looking into how this made it into print as we speak. It is not editorial content and was not created by, or approved by, the Sun-Times newsroom. We value your trust in our reporting and take this very seriously. More info will be provided soon.

— Chicago Sun-Times (@chicago.suntimes.com) 2025-05-20T14:19:10.366Z

Later on, the paper issued an apology that was a notable improvement over past scandals. Usually, when media outlets are caught using half-cooked AI to generate engagement garbage, they throw a third party vendor under the bus, take a short hiatus to whatever dodgy implementation they were doing, then in about three to six months just return to doing the same sort of thing.

The Sun Times sort of takes proper blame for the oversight:

“King Features worked with a freelancer who used an AI agent to help build out this special section. It was inserted into our paper without review from our editorial team, and we presented the section without any acknowledgement that it was from a third-party organization.”

They also take the time to thank actual human beings, which was nice:

“We are in a moment of great transformation in journalism and technology, and at the same time our industry continues to be besieged by business challenges. This should be a learning moment for all journalism organizations: Our work is valued — and valuable — because of the humanity behind it.“

The paper is promising to do better. Still, the oversight reflects poorly on the industry at large.

The entire 4-page, ad-supported “Heat Index” published by the Sun-Times is the sort of fairly inane, marketing heavy gack common in a stagnant newspaper industry. It’s fairly homogenized and not at all actually local; the kind of stuff that’s just lazily serialized and published in papers around the country with a priority of selling ads — not actually informing anybody.

Other segments of the paper’s silly Heat Index appear to feature experts that don’t actually exist, according to 404 Media’s Jason Koebler:

“For example, in an article called “Hanging Out: Inside America’s growing hammock culture,” Buscaglia quotes “Dr. Jennifer Campos, a professor of leisure studies at the University of Colorado, in her 2023 research paper published in the Journal of Contemporary Ethnography.” A search for Campos in the Journal of Contemporary Ethnography does not return any results.”

In many ways these “AI” scandals are just badly automated extensions of existing human ethical and competency failures. Like the U.S. journalism industry’s ongoing obliteration of any sort of firewall between advertorial sponsorship and actual, useful reporting (see: the entire tech news industry’s love of turning themselves into a glorified Amazon blogspam affiliate several times every year).

But it’s also broadly reflective of a trust fund, fail-upward sort of modern media management that sees AI as less of a way to actually help the newsroom, and more of a way to lazily cut corners and further undermine already underpaid and overworked staffers (the ones that haven’t been mercilessly fired yet).

Some of these managers, like LA Times billionaire owner Patrick Soon-Shiong, genuinely believe (or would like you to believe because they also sell AI products) that half-cooked automation is akin to some kind of magic. As a result, they’re rushing toward using it in a wide variety of entirely new problematic ways without thinking anything through, including putting LLMs that can’t even generate accurate summer reading lists in charge of systems (badly) designed to monitor “media bias.”

There’s also a growing tide of aggregated automated clickbait mills hoovering up dwindling ad revenue, leeching money and attention from already struggling real journalists. Thanks to the fusion of automation and dodgy ethics, all the real money in modern media is in badly automated engagement bait and bullshit. Truth, accuracy, nuance, or quality is a very distant afterthought, if it’s thought about at all.

It’s all a hot mess, and you get the sense this is still somehow just the orchestra getting warmed up. I’d like to believe things could improve as AI evolves and media organizations build ethical frameworks to account for automation (clearly cogent U.S. regulation or oversight is coming no time soon), but based on the industry’s mad dash toward dysfunction so far, things aren’t looking great.

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At a time when mainstream media continues to struggle with calling out Trump’s censorial power grabs for what they are, John Oliver just devoted an entire segment to exposing what Techdirt readers already know: Donald Trump’s administration has been waging a direct and sustained assault on free speech and the First Amendment, with FCC chairman Brendan Carr serving as his lead enforcer.

His latest episode not only provides much-needed mainstream coverage of this issue, but does so with the kind of detailed receipts that make the hypocrisy impossible to ignore — well, impossible unless you’re a mainstream news outlet that apparently needs a British comedian with a giant rat costume budget to explain what’s happening right in front of your face.

The segment packs an impressive amount of evidence into less than 30 minutes, with Oliver managing to explain Trump’s entire censorship strategy faster than some rando MAGA account can scream “But what about Hunter Biden’s laptop?” The most damning portion comes when he breaks down the administration’s two-pronged strategy to pressure media companies:

And Carr does seem deep in the tank for the president. Trump supporters have celebrated this image of him wearing a gold Trump pin. And after the Hollywood Reporter published an article titled, “Trump’s media pitbull is off the leash.” That included this horrifying picture of car as a pitbull, he tweeted it saying, “Woof woof.”

One past FCC commissioner said, “I’m about as worried as I can be about the future of the FCC. I would say Carr is the most ideological chairman we’ve ever had and the most political.”

And he’s wasted no time pursuing Trump’s agenda. His FCC is now investigating all the major broadcast outlets except for Fox*.*

And Carr’s stewardship of the FCC has also been part of a new squeeze Trump’s been putting on the networks with the FCC on one side and lawsuits on the other.

Here is how it works. The FCC has the ability to regulate the broadcast licenses of local TV and radio stations. The big networks each own a bunch of those. CBS, for instance, owns all of these [Shows image of owned/operated CBS affiliates]. And while the FCC revoking a license is incredibly hard, what it can do is make it very hard for networks to sell those stations, which given the frequency of media mergers and acquisitions can be a real problem.

So networks now have that threat hanging over them while at the same time Trump is applying legal pressure by filing lawsuits to put them on the defensive. It is pretty flagrant: Trump files a lawsuit demanding money. At the same time, his FCC starts making noises about plans to make that company’s life unpleasant. So, the networks settle in the hopes it’ll keep Trump happy and get everyone off their back. And maybe they think twice about the tone of their coverage in the future.

Right now, CBS is caught in this exact squeeze, largely arising from a 60 Minutes segment that aired just before the election featuring an interview with Kamala Harris, which Trump maintains was misleadingly edited. He has sued the network in a lawsuit First Amendment lawyers have called “frivolous and dangerous” and “ridiculous junk.”

He then goes through and details how absolutely bullshit the claims about 60 Minutes’ supposed “edits” are and even compares them to how Fox News deceptively edited an interview with Trump himself.

What Oliver lays out here isn’t just run-of-the-mill media criticism — it’s a coordinated strategy using government abuse of power to create a chilling effect on speech. The FCC, under Carr, becomes the enforcement arm while Trump’s personal lawsuits provide the second front of attack. This pincer movement creates enormous pressure on media outlets that might otherwise stand firm against either threat alone.

Of course, the fact that many media orgs don’t really seem all that interested in standing up for free speech at all is another issue, which maybe Oliver can talk about later this season.

What makes Oliver’s segment particularly valuable is that he doesn’t just preach to the choir. He provides detailed evidence that exposes the cynical strategy at work. As we’ve pointed out repeatedly, Trump and Carr repeatedly wrap themselves in the language of free speech while actively working to suppress it. This rhetorical sleight-of-hand has proven remarkably effective with many mainstream outlets who seem unable to deal with bad faith liars. They continue to frame Trump as a “free speech champion” even as his administration uses governmental power to silence critics.

The segment shows (for not the first time) how comedy is doing the accountability job that traditional news outlets have largely abandoned. Documenting both the tactics and the hypocrisy with actual receipts allows Oliver to present the simple reality: we’re living in an era where censorship by the GOP is being masqueraded as free speech advocacy.

This matters because the “free speech warrior” branding has been remarkably resistant to factual evidence. When someone with Oliver’s platform and reach breaks through that messaging armor, it creates an opportunity for people to realize just how ridiculous this argument is, and to understand that “free speech” is more than just a slogan to be weaponized against political enemies — it’s an actual principle that requires defending even when it’s inconvenient to your political goals.

And maybe, just maybe, if enough people start to understand that, we can finally move past this exhausting era where “defending free speech” apparently means “fighting for your god-given right to post slurs on Twitter without consequences” while actual government censorship gets a pass because it claims to be fighting “wokeness” — as if the First Amendment has a “but not if it’s too woke” exception clause that we all somehow missed.

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Our Secretary of Homeland Security, tasked with overseeing the detention of thousands of people, doesn’t understand one of the most fundamental protections against unlawful imprisonment in our legal system. And we’re not talking about some obscure technical detail — we’re talking about habeas corpus, a basic right that’s been around since the Magna Carta.

Kristi Noem — who recently made headlines by taking glamor selfies in El Salvador’s concentration camps — apparently has no fucking clue how habeas corpus works, as demonstrated during a Senate hearing when she was asked to define this cornerstone of civil liberty.

When quizzed about the definition of habeas corpus by Senator Maggie Hassan, Noem stumbled and then claimed it meant the literal opposite of what it means:

HASSAN: What is habeas corpus?NOEM: Habeas corpus is a constitutional right that the president has to be able to remove people from this country HASSAN: That's incorrect

— Aaron Rupar (@atrupar.com) 2025-05-20T14:16:31.383Z

A quick transcript:

Hassan: Secretary Noem, what is habeas corpus?

Noem: Well, habeas corpus is a constitutional right that the president has to be able to remove people from this country….

Hassan: No, let me stop you

Noem [crosstalk]… and suspend their right to… that’s what suspend their right to…

Hassan: Excuse me, that’s incorrect.

Noem: Lincoln used it…

Hassan: Excuse me, habeas corpus…

Noem: [condescendingly] uh huh

Hassan: … is the legal principle that requires that the government provide a public reason for detaining and imprisoning people. If not for that protection, the government could simple arrest people, including American citizens and hold them indefinitely for no reason. Habeas corpus is the foundational right that separates free societies like America from police states like North Korea. As a Senator from the “Live free or die” state, this matters a lot to me and my constituents and to all Americans. So, Secretary Noem, do you support the core protections that habeas corpus provides that the government must provide a public reason in order to detain and imprison someone?

Noem: I support habeas corpus, I also recognize that the President of the United States has the authority under the Constitution to decide if it should be suspended or not.

There’s a lot of nonsense to unpack here. Noem’s response wasn’t just wrong — it was revealing. The only thing that seemed to be floating around her MAGA-pickled brain regarding habeas corpus was apparently Stephen Miller’s recent call to suspend habeas corpus entirely. When asked to define this foundational protection against government overreach, she instead described its complete elimination.

But beyond exposing her ignorance, Noem’s answer reveals a fundamental misunderstanding of constitutional power. The Constitution’s habeas corpus provision isn’t some presidential superpower — it’s actually a strict limitation on government authority:

The Privilege of the Writ of Habeas Corpus shall not be suspended*, unless when in Cases of Rebellion or Invasion the public Safety may require it.*

This isn’t about presidential authority — it’s about strictly limiting when the government can suspend this fundamental right. And even then, it’s Congress’s power, not the president’s. When Noem smugly referenced Lincoln’s suspension of habeas corpus, she apparently missed that the courts explicitly rejected his authority to do so.

This isn’t some obscure constitutional detail — it’s basic structure-of-government stuff. The habeas clause appears in Article I (Congress) not Article II (Executive) for a reason. The fact that our Homeland Security Secretary doesn’t grasp this is more than just embarrassing — it’s dangerous.

Let’s be absolutely clear about what’s happening here: the person in charge of the department that detains more people than any other federal agency fundamentally misunderstands — or deliberately misrepresents — the constitutional right that protects against unlawful detention. She swore an oath to defend a Constitution she apparently hasn’t read, thinking it grants presidents (and, via appointment power, herself) the power to detain and deport at will, when it actually does the opposite.

This isn’t just about constitutional ignorance. Coming right after her El Salvador prison tourism and Miller’s calls to suspend habeas corpus, it reveals a broader authoritarian vision: one where fundamental rights are seen as inconvenient obstacles to be removed, rather than essential protections to be preserved. In normal times, this level of constitutional illiteracy would be disqualifying for any government role. But these aren’t normal times — and that’s precisely why defending these basic principles matters more than ever.

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For years, the DHS has been expanding its intrusive surveillance of anyone attempting to enter this country. (It has also expanded this to include people leaving the country.)

The current onboarding procedure for US entry includes demands for account passwords and deep dives into devices carried by migrants, visitors, asylum seekers, and anyone else CBP officers can talk into letting them wander around in their digital lives.

This intrusiveness has now become an anti-wrongthink imperative under Trump during his second term in office. In addition to the reckless and needlessly cruel mass expulsions of anyone appearing to have come from a nation south of the US, there’s a new angle: the expulsion and/or denial of entry to anyone who doesn’t agree with the administration’s views on the Palestine-Israel conflict. Hence this announcement from the DHS back in April of this year:

U.S. Citizenship and Immigration Services has announced it will begin screening immigrants’ social media for evidence of antisemitic activity as grounds for denying immigration benefit requests. The screenings will affect people applying for permanent residence status as well as foreigners affiliated with educational institutions. The policy will go into effect immediately.

In a statement issued Wednesday morning, the Department of Homeland Security said it will “protect the homeland from extremists and terrorist aliens, including those who support antisemitic terrorism, violent antisemitic ideologies and antisemitic terrorist organizations such as Hamas, Palestinian Islamic Jihad, Hezbollah, or [the Houthis].”

In other words, if you spoke out against Israel’s occupation of Palestine or any of the actions it has taken during this conflict, you’re probably an antisemite and/or a terrorist. The DHS would act swiftly to ensure only migrants siding with the US’s position on this conflict were allowed into this country, and only if it couldn’t think of another reason to deny them entry.

Of course, this is all based on a deliberate misunderstanding by Trump and his administration. Disagreeing with Israel’s actions and/or supporting Palestinian independence is — and never has been — antisemitism. At best, it suggested this administration was fine with other forms of bigotry, but simply would not tolerate anyone who thought Palestinians had a right to exist.

As it turns out, it’s even more hypocritical than is considered usual for this administration. The Big Boss has bought into the conspiracy theory that there’s some sort of race war targeting white people in South Africa — something that can only be attributed to the whitest Afrikaner to ever run a dodgy government agency, Elon Musk.

Musk is a huge conspiracy theorist, and Donald Trump seemingly hasn’t met a conspiracy theorist or conspiracy theory he hasn’t liked. This brain cloud masquerading as a presidential administration is now not nearly as concerned about antisemitism… at least not when it’s being spewed by one of theirs.

One of the white Afrikaners brought into the US as refugees by the Trump administration this week has a history of antisemitic social media posts, despite the White House using alleged antisemitism as a rationale for deporting pro-Palestinian protesters.

Charl Kleinhaus posted on X in 2023 that “Jews are untrustworthy and a dangerous group.” In another post last fall, he shared a rightwing, nationalist YouTube video that was later removed, titled: “‘We’ll shoot ILLEGAL Immigrants!’ – Poland’s Illegal Islamic immigrant solution,” with clapping emojis.

A number of Kleinhaus’s posts also promote the conspiracy theory that white people in South Africa are being particularlypersecuted.

So much for vetting the migrants. I guess there’s no reason to suspect a white guy might be a problem, not when there’s so many Venezuelans to send to El Salvador. Kleinhaus has since confirmed those posts came from his accounts, but not without deploying the only excuse less believable than “my account was hacked.”

[H]e insisted to the Times that he was not antisemitic and claimed to have written a post in error while on medication.

Ah, the Barr defense. And note that Kleinhaus only claimed “a” post (singular!) was written “in error” while all drugged up on whatever form of off-label self-medication is currently popular within the South African white trash community. Cue the goose meme:

I mean, the report listed at least two antisemitic tweets. And then it said this dude spent a lot of time promoting the “white men are the real victims here in post-apartheid South Africa” conspiracy theory. Blaming a single post on drug use isn’t the win Kleinhaus seems to think it is. Then again, the real win is getting a free pass to come to America to make it worse than it already is because the whole oppression thing is too hard back home.

And here’s how the DHS is handling this hypocrisy: by pretending it’s not even happening.

A senior DHS official said in a statement: “The Department of Homeland Security vets all refugee applicants. Any claims of misconduct are thoroughly investigated, and appropriate action will be taken as necessary. DHS does not comment on individual application status.”

It’s a statement that says nothing one way or the other. It has all the distinctive features of a vacant apartment’s walls. It’s the color beige described in 32 words, each one more meaningless than the last.

We don’t expect honesty from our government PR reps. We certainly don’t expect it from Kristi Noem or her boss, whose eyelids and soles are far whiter than even this Afrikaner antisemite can ever hope to be. This is how things work in the United States: white is right, even when it’s wrong. The only thing that’s changed is that this administration can’t even be bothered to offer up a credible excuse for its racist policies and actions.

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There are two major reasons that the U.S. doesn’t pass an internet-era privacy law or regulate data brokers despite a parade of dangerous scandals. One, lobbied by a vast web of interconnected industries with unlimited budgets, Congress is too corrupt to do its job. Two, the U.S. government is disincentivized to do anything because it exploits this privacy dysfunction to dodge domestic surveillance warrants.

If we imposed safeguards on consumer data, everybody from app makers to telecoms would make billions less per quarter. So our corrupt lawmakers pretend the vast human harms of our greed are a distant and unavoidable externality. Unless the privacy issues involve some kid tracking rich people on their planes, of course, in which case Congress moves with a haste that breaks the sound barrier.

Despite this, the Biden era saw some modest progress in holding dodgy data brokers accountable for routinely over-collecting sensitive user location and behavior data, then selling it to any random idiot with few nickels to rub together (like far right wing propagandists, or authoritarian governments).

But that minimal progress is now, of course, being unwound by the Trump administration. For example, the Trump Consumer Financial Protection Bureau (CFPB) is quietly killing an effort to implement new rules on how data brokers sell sensitive information about Americans, including financial data, credit history, and Social Security numbers.

The new rule was proposed last December under former director Rohit Chopra. It would have allowed the CFPB to police dodgy data brokers under the Fair Credit Reporting Act (FCRA), limiting their ability to traffic in financial data, credit scores, phone numbers, Social Security numbers, and addresses. Chopra, at the time, noted that this data often winds up in the hands of foreign intelligence agencies.

But Wired notes how the lobotomized agency, now under the “leadership” of acting director and Project 2025 architect Russell Vought, quietly withdrew the proposal last week, publishing a notice in the Federal Register declaring the rule no longer “necessary or appropriate.”

As Wired hints, the impact goes well beyond inane policy debates, and is likely to be potentially fatal for many Americans:

“Russell Vought is undoing years of painstaking, bipartisan work in order to prop up data brokers’ predatory, and profitable, surveillance of Americans,” says Sean Vitka, executive director of Demand Progress, a nonprofit that supported the rule. Added Vitka: “By withdrawing the CFPB’s data broker rulemaking, the Trump administration is ensuring that Americans will continue to be bombarded by scam texts, calls and emails, and that military members and their families can be targeted by spies and blackmailers.”

Senator Ron Wyden documented last year how far-right zealots were able to buy the location data of women seeking abortions and then use it to target vulnerable women with right wing propaganda. Lax oversight of wireless company monetization of location data has resulted in this data getting into the hands of stalkers and sexual predators. This corruption has real world costs.

Everywhere you look, Trump and his courts are making it easier for criminals and predatory scumbags to abuse this data. The Trump-stocked 5th Circuit, for example, recently vacated a $57 million fine against AT&T for collecting and selling sensitive user location data to data brokers without informing consumers. Auto giants have also been abusing sensitive data to jack up your insurance rates without telling you.

These are very real harms impacting everyone, regardless of partisan ideology. But instead of shoring up oversight of this sector, we’re rushing in the exact opposite direction, both by killing already modest efforts at new rules, and gutting federal regulatory ability to craft and enforce new ones. That leaves privacy reform in the hands of a well-lobbied Congress that’s too corrupt to function.

This is all occurring in an era where people are sharing more sensitive data than ever with their apps — and even AI therapists or sexbots. Opening the door to the kind of potentially deadly privacy invasions even the most alarmist of activists have yet to even dream of.

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The DEA may not be an early adopter of forward-looking policies, but it certainly leads the pack when it comes to shedding accountability like a teen ditching an ill-fitting sports coat the instant a family portrait session has wrapped up.

Federal law enforcement agencies definitely trailed the trends when it came to body cam use by officers. For years, the DOJ forbade local cops from using their body cameras during joint task force operations involving federal officers. It wasn’t until November 2020 that it agreed local officers could use their cameras in joint operations, but only if they agreed to play by the DOJ’s extremely stringent rules.

It took nearly another year before the DOJ agreed to start outfitting its own agencies with body cameras — something undoubtedly provoked by several months of intense civil unrest following the murder of unarmed Black man George Floyd by Minneapolis (MN) police officer Derek Chauvin.

Now that Trump has undone anything with Biden’s name on it, the DEA has informed its officers that body cams are no longer part of the federal drug enforcement process, as Mario Ariza reports for ProPublica:

The Drug Enforcement Administration has quietly ended its body camera program barely four years after it began, according to an internal email obtained by ProPublica.

On April 2, DEA headquarters emailed employees announcing that the program had been terminated effective the day before. The DEA has not publicly announced the policy change, but by early April, links to pages about body camera policies on the DEA’s website were broken.

The email said the agency made the change to be “consistent” with a Trump executive order rescinding the 2022 requirement that all federal law enforcement agents use body cameras.

Also gone is its official body camera policy [PDF], which has been replaced with a 404 message. (Archived here and embedded below.)

The DEA told its employees this vanishing was required to be “consistent” with Trump’s repeal of a Biden police accountability executive order. But ProPublica reports at least two other federal law enforcement agencies are still requiring officers to wear body cameras. One would assume the other agencies will follow the DEA’s lead and do the same, even if there’s nothing in Trump’s Biden order rollback or even the president’s more recent “GO POLICE STATE!” executive order that forbids the use of body cameras by federal officers.

While the DEA is taking the lead on the domestic-facing side when it comes to ditching the BWC-based pretense of accountability, it’s following the trail set by one of the most-reviled federal agencies in the nation:

In early February, U.S. Immigration and Customs Enforcement, which is part of the Department of Homeland Security, was one of the first agencies to get rid of its body cameras. Subsequent videos show plainclothes immigration agents making arrests with no visible body cameras.

Of course it was. ICE doesn’t just make policies vanish. It makes human beings disappear. The last thing DHS and ICE need are a bunch of unblinking eyes creating a permanent record of extrajudicial arrests and renditionings.

Federal law enforcement is going dark again, returning to its normal state of nigh-impenetrable opacity. Trump and his team have reset the clock, rolling back the most minimal of gains in law enforcement accountability just because he and his administration love government thuggery more than they love this country or the millions of regular people they’re supposed to be serving.

It took years for the federal government to engage in an extremely timid roll out of tech that regular cops had been using for most of the past decade. It took only a few weeks to undo three years of progress. And when agencies were given the option to shed themselves of devices officers often consider to be impositions, they acted immediately, completely disregarding even the DOJ’s own assertions about the positive aspects of body-worn cameras. It’s 2025, but the DOJ has been given permission to pretend it’s 2015 all over again.

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We’ve talked about how, in the digital space at least, the concept of “ownership” has undergone a massive philisophical shift. It used to be that you would go out somewhere, buy a thing, and own that thing. When the product is digital, however, or if it is connected to the internet and subject to firmware and software updates that change the product post purchase, you never really own the product. In fact, according to most EULAs and the like, you merely “license” the product. That means the thing you bought on Monday may not be the product or service you actually get on Friday, if the manufacturer or maker decides to make a change. And the response you get from industry is a reminder that you didn’t buy a thing; you bought a limited license to a thing that can be altered, rescinded, or bricked at the maker’s whim.

It’s a dystopia that we’ve come to accept, unfortunately. But you get to a whole new level of absurd when you don’t actually own the license you bought, either. More specifically, when you buy a “lifetime license” to a VPN service, only to have the company be sold and the new owners yank that lifetime subcription from you without prior notice.

The new owners of VPN provider VPNSecure have drawn ire after canceling lifetime subscriptions. The owners told customers that they didn’t know about the lifetime subscriptions when they bought VPNSecure, and they cannot honor the purchases.

A copy of the email from “The VPN Secure Team” and posted on Reddit notes that VPNSecure had previously deactivated accounts with lifetime subscriptions that it said hadn’t been used in “over 6 months.” The message noted that VPNSecure was acquired in 2023, “including the technology, domain, and customer database—but not the liabilities.”

It gets worse. According to the new owners, they claim the sellers didn’t even tell them about these lifetime subscriptions and that usage and support requests for them were saturating the service, all sans any income for the new ownership. How true any of that is would be completely unknown to this writer, obviously, but it’s also besides the point. If the seller obfuscated usership in the sale, that should be taken up with the seller. The current owners claim they can’t do that because the costs of a lawsuit would outpace what they spent on the purchase to begin with. Which, hey, that sucks pretty hard if all of this is true, but I’m failing to see why that should keep in purchases made in good faith from being honored.

Unfortunately, the previous owner did not disclose that thousands of Lifetime Deals (LTDs) had been sold through platforms like StackSocial.

We discovered this only months later—when a large portion of our resources were strained by these LTD accounts and high support volume from users, who through part of the database, provided no sustaining income to help us improve and maintain the service.

We actually offered VPNSecure lifetime subscriptions in one of our own “Daily Deal” posts. There is a lot of disbelief floating out there about just what these new owners knew about these subscriptions and when they knew it. It’s important to note that checking the history of the VPNSecure website doesn’t reveal that lifetime subs were ever offered there. Instead, they appear to have been offered through third parties like StackCommerce, which is who Techdirt partners with. When we asked StackCommerce directly about this whole fiasco, we were provided with this statement.

“As a marketplace, StackCommerce connects consumers with exclusive digital deals offered by third-party providers. While we strive to curate high-quality, long-term offers, we do not own or operate the products sold through our platform. In rare cases where a provider is acquired or discontinues operations, we unfortunately have no control over how those new entities choose to honor existing agreements. We understand the frustration this can cause and are actively working with impacted customers to offer support and explore possible solutions.”

Any real due diligence by the new owners should have uncovered all of this. If they didn’t do their jobs as part of the acquisition, well, sucks for them.

Again, how that translates into ripping away a subscription from a customer who bought them in good faith is beyond me. How those subs were discontinued without notice, with emails going out to those affected only after the complaints started rolling in, is also a valid question and a method for assuredly pissing people off.

VPNSecure could’ve potentially mitigated backlash by giving users more advanced warning of the changes and a longer opportunity to select a new subscription before deactivating their accounts. We can’t confirm if InfiniteQuant Ltd. knew about the lifetime subscriptions before making its purchase. However, the firm claims to have known about the subscriptions a few months after taking ownership, so it had ample time to warn customers before abruptly deactivating “dormant” accounts and killing the subscriptions of thousands of customers.

So if we don’t own what we’ve bought, and we don’t even own the licenses under the terms we bought them either, then what exactly are we getting whenever we hand over the money we’ve earned?

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In a brazen attempt to avoid oversight, Elon Musk’s DOGE team is now trying to “audit” the very agency tasked with auditing them. On Friday, NOTUS reported that DOGE officials showed up at the Government Accountability Office — Congress’s independent watchdog — to attempt their signature hostile takeover routine. There’s just one small problem: DOGE has no authority whatsoever over the legislative branch.

This latest overreach comes after months of DOGE attempting to position itself as some kind of revolutionary government auditor — despite lacking the expertise or process knowledge that actual auditing requires. As we’ve covered before, everything DOGE claims to be doing was already being handled by skilled professionals within government — professionals whom Musk promptly fired, like the technical experts at 18F. Real government auditors have been watching in horror as DOGE has been doing the opposite of proper auditing procedures.

The GAO’s investigation of DOGE has been building for months. For decades, the office has earned bipartisan respect for its methodical, nonpartisan audits of government operations. So when reports emerged in April that Congress’s watchdog had begun examining DOGE’s activities, it suggested serious concerns about DOGE’s operations. The GAO requested comprehensive documentation about systems access, risk assessments, and potential misuse of agency data.

Records show that the GAO—an independent auditing, research, and investigative agency for Congress—appears to be requesting comprehensive information from the agencies in question, including incident reports on “potential or actual misuse of agency systems or data” and documentation of policies and procedures relating to systems DOGE operatives have accessed, as well as documentation of policies for the agency’s risk assessments, audit logs, insider threat programs, and more.

Just last week, while DOGE was busy slashing budgets without understanding the consequences, the GAO demonstrated what actual government efficiency looks like. The office identified over $100 million in potential IT savings — real cost reductions found through careful analysis of redundant systems and unnecessary investments, not arbitrary cuts.

Cost-trimming in the US federal government is all the rage right now – and a new report finds more than $100 million in savings available to the Feds by doing nothing but eliminating redundant and unnecessary IT investments.

Those savings are part of a much more significant $100 billion in potential cost reductions recommended by Uncle Sam’s Government Accountability Office (GAO), as detailed in the auditors’ 15th annual “fragmentation, overlap, and duplication” report, released this week. The annual federal budget is about $7 trillion total, for reference.

The contrast between GAO’s methodical approach and DOGE’s slash-and-burn tactics couldn’t be clearer.

The Register’s reporting highlighted an uncomfortable truth for DOGE supporters: when asked about DOGE’s role, GAO director Lucas-Judy diplomatically noted that while they’re “always happy if other groups want to implement our recommendations,” DOGE has largely ignored GAO’s existing work — except when cherry-picking recommendations that align with their predetermined cuts.

Rather than engage constructively with GAO’s findings, DOGE responded by attempting to assert control over the congressional watchdog itself. This move isn’t just inappropriate — it’s obviously unconstitutional. If DOGE has any authority at all (which multiple ongoing lawsuits dispute), it would be limited to executive branch agencies. Yet here they are, attempting to extend their reach into Congress’s independent oversight arm.

Elon Musk’s DOGE team is now starting to target government agencies outside of the executive branch, notifying the U.S. Government Accountability Office — the congressional watchdog that performs studies for legislators about federal waste, fraud and abuse — that it has “assigned a team” to assail that agency, according to an internal email obtained by NOTUS.

The GAO’s response was appropriately direct. In an internal email obtained by NOTUS, the office informed its staff that it had “sent a letter to the acting administrator of DOGE stating that GAO is a legislative branch agency that conducts work for the Congress. As such, we are not subject to DOGE or executive orders.” The office also notified congressional committees about DOGE’s attempted overreach.

This confrontation exposes two critical issues: first, DOGE’s constitutional illiteracy in attempting to assert executive branch authority over a congressional agency. Second, and perhaps more troubling, it reveals DOGE’s apparent strategy of trying to neutralize any meaningful oversight of its own activities.

Given Musk’s track record of lashing out when told “no,” this situation is likely to escalate. But the real story here isn’t just about DOGE’s continued incompetence — it’s about their increasingly desperate attempts to avoid actual accountability while masquerading as government watchdogs themselves.

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It’s no secret that Nintendo is among the most draconian actors when it comes to intellectual property. Techdirt is rife with posts on the various ways the company has been a royal and overreaching pain in the ass on anything with even the most modest concern over copyrights, trademarks, or patents. From attempting to unmask anonymous internet denizens over leaks, to failed lawsuits against South American grocers over nonsense trademark concerns, to finding literally any reason to sue a competitor over patents that never should have been granted just because it can, the company simply never misses an opportunity to treat its own industry and fans poorly at the hands of its lawyers. This has even included threats to brick its customers’ consoles if they fail to agree to new EULAs after the console had been purchased.

That last one is particularly notable, as Nintendo is once again issuing a similar threat, but this time with a new EULA that outlines all the things, including legal things, that might cause Nintendo to turn your Switch or Switch 2 into a paperweight.

First spotted by Game File (readers may encounter a paywall), Nintendo has recently changed its online user agreement in multiple consumer-unfriendly ways just before the launch of the Switch 2. Chief among them: Nintendo asserts the right to render your console “permanently unusable” if it determines you’re in violation of the agreement.

Nintendo’s specific new phrasing, distinct from its prior EULA from 2021, is that “You acknowledge that if you fail to comply with the foregoing restrictions Nintendo may render the Nintendo Account Services and/or the applicable Nintendo device [emphasis mine] permanently unusable in whole or in part.”

So what might so offend the company that they would remotely disable the device you bought? Some of it is what you’d expect. Don’t circumvent its anti-piracy protections. Don’t pirate its games.

These still aren’t kosher (more on that in a moment), but then there’s this.

Publish, copy, modify, reverse engineer, lease, rent, decompile, disassemble, distribute, offer for sale, or create derivative works of any portion of the Nintendo Account Services.

The old EULA had some of this language, but it was inclusive of language that such acts had to violate local laws to be verboten. This new EULA includes no such language which, as PC Gamer rightly points out, is a pretty big problem.

The sections I most take issue with are the prohibitions on copying, modifying, or decompiling software—particularly as it no longer accounts for it being “expressly permitted by applicable law”—as well as hardware/software modifications “that would cause the Nintendo Account Services to operate other than in accordance with its documentation and intended use.”

No game or hardware modding, no extracting ROMs⁠—something Nintendo continuously asserts we cannot do, even though it is a legally protected consumer right⁠—and no dual booting to another OS.

Nintendo is once again asserting rights it doesn’t appear to have, at least in America. In what world can someone sell me a thing and then make the thing unusable because it doesn’t like a legal action I took with it? Do we own this fucking thing, or do we not?

Worse yet, the EULA makes it clear that Nintendo is judge, jury, and executioner on these matters. There’s nothing in the language about bricking your device that indicates Nintendo is going to go to any legal authority or third party before doing so. If it suspects you’re engaging in a forbidden (by Nintendo only) activity, the company can brick your shit.

So what happens when they’re wrong?

There’s also the very legitimate concern of the notoriously heavy-handed, litigious company acting on false positives. I don’t know what means Nintendo has to detect such activity and kill a console, but I’m getting a clear message: You spent $450 on this hardware, but Nintendo does not think you own it.

That there hasn’t been a bigger uproar over these changes is plainly absurd. They’re so anti-consumer as to be ridiculous and all of this is practically begging for interdiction from the federal government, assuming the Trump administration hasn’t hollowed out the government’s ability to protect its own people from this sort of thing.

But anyone buying a Switch 2 when its released is at risk of having an expensive paperweight otherwise. You’ve been warned.

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Afew weeks ago, the UK’s regional and national daily news titles ran similar front covers, exhorting the government there to “Make it Fair.” The campaign Web site explained:

Tech companies use creative content, such as news articles, books, music, film, photography, visual art, and all kinds of creative work, to train their generative AI models.

Publishers and creators say that doing this without proper controls, transparency or fair payment is unfair and threatens their livelihoods.

Under new UK proposals, creators will be able to opt out of their works being used for training purposes, but the current campaign wants more than that:

Creators argue this [opt-out] puts the burden on them to police their work and that tech companies should pay for using their content.

The campaign Web site then uses a familiar trope:

Tech giants should not profit from stolen content, or use it for free.

But the material is not stolen, it is simply analyzed as part of the AI training. Analyzing texts or images is about knowledge acquisition, not copyright infringement. Once again, the copyright industries are trying to place a (further) tax on knowledge. Moreover, levying that tax is completely impractical. Since there is no way to determine which works were used during training to produce any given output, the payments would have to be according to their contribution to the training material that went into creating the generative AI system itself. A Walled Culture post back in October 2023 noted that the amounts would be extremely small, because of the sheer quantity of training data that is used. Any monies collected from AI companies would therefore have to be handed over in aggregate, either to yet another inefficient collection society, or to the corporate intermediaries. For this reason, there is no chance that creators would benefit significantly from any AI tax.

We’ve been here before. Five years ago, I wrote a post about the EU Copyright Directive’s plans for an ancillary copyright, also known as the snippet or link tax. One of the key arguments by the newspaper publishers was that this new tax was needed so that journalists were compensated when their writing appeared in search results and elsewhere. As I showed back then, the amounts involved would be negligible. In fact, few EU countries have even bothered to implement the provision on allocating a share to journalists, underlining how pointless it all was. At the time, the European Commission insisted on behalf of its publishing friends that ancillary copyright was absolutely necessary because:

The organisational and financial contribution of publishers in producing press publications needs to be recognised and further encouraged to ensure the sustainability of the publishing industry.

Now, on the new Make it Fair Web site we find a similar claim about sustainability:

We’re calling on the government to ensure creatives are rewarded properly so as to ensure a sustainable future for AI and the creative industries.

As with the snippet tax, an AI tax is not going to do that, since the sums involved as so small. A post on the News Media Association reveals what is the real issue here:

The UK’s creative industries have today launched a bold campaign to highlight how their content is at risk of being given away for free to AI firms as the government proposes weakening copyright law.

Walled Culture has noted many times it is a matter of dogma for the industries involved that copyright must only ever get stronger, as if they were a copyright ratchet. The fear is evidently that once it has been “weakened” in some way, a precedent would be set, and other changes might be made to give more rights to ordinary people (perish the thought) rather than to companies. It’s worth pointing out that the copyright world is deploying its usual sleight of hand here, writing:

The government must stand with the creative industries that make Britain great and enforce our copyright laws to allow creatives to assert their rights in the age of AI.

A fair deal for artists and writers isn’t just about making things right, it is essential for the future of creativity and AI.

Who could be against this call for the UK government to defend the poor artists and writers? No one, surely? But the way to do that, according to Make it Fair, is to “stand with the creative industries”. In other words, give the big copyright companies more power to act as gatekeepers, on the assumption that their interests are perfectly aligned with those of the struggling creators.

They are not. As Walled Culture the book explores in some detail (free digital versions available), the vast majority of those “artists and writers” invoked by the “Make it Fair” campaign are unable to make a decent living from their work under copyright. Meanwhile, huge global corporations enjoy fat profits as a result of that same creativity, but give very little back to the people who did all the work.

There are serious problems with the new AI offerings, and big tech companies definitely need to be reined in for many things, but not for their basic analysis of text and images. If publishers really want to “Make it Fair,” they should start by rewarding their own authors fairly, with more than the current pittance. And if they won’t do that, as seems likely given their history of exploitation, creators should explore some of the ways they can make a decent living without them. Notably, many of these have no need for a copyright system that is the epitome of unfairness, which is precisely why publishers are so desperate to defend it in this latest coordinated campaign.

Follow me @glynmoody on Mastodon and on Bluesky. Originally posted to WalledCulture.

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President Trump’s attack on public broadcasting has attracted plenty of deserved attention, but there’s a far more technical, far more insidious policy change in the offing—one that will take away Americans’ right to unencumbered access to our publicly owned airwaves.

The FCC is quietly contemplating a fundamental restructuring of allbroadcasting in the United States, via a new DRM-based standard for digital television equipment, enforced by a private “security authority” with control over licensing, encryption, and compliance. This move is confusingly called the “ATSC Transition” (ATSC is the digital TV standard the US switched to in 2009 – the “transition” here is to ATSC 3.0, a new version with built-in DRM).

The “ATSC Transition” is championed by the National Association of Broadcasters, who want to effectively privatize the public airwaves, allowing broadcasters to encrypt over-the-air programming, meaning that you will only be able to receive those encrypted shows if you buy a new TV with built-in DRM keys. It’s a tax on American TV viewers, forcing you to buy a new TV so you can continue to access a public resource you already own.

This may not strike you as a big deal. Lots of us have given up on broadcast and get all our TV over the internet. But millions of American still rely heavily or exclusively on broadcast television for everything from news to education to simple entertainment. Many of these viewers live in rural or tribal areas, and/or are low-income households who can least afford to “upgrade.” Historically, these viewers have been able to rely on access to broadcast because, by law, broadcasters get extremely valuable spectrum licenses in exchange for making their programming available for free to anyone within range of their broadcast antennas.

Adding DRM to over-the-air broadcasts upends this system. The “ATSC Transition” is a really a transition from the century-old system of universally accessible programming to a privately controlled web of proprietary technological restrictions. It’s a transition from a system where anyone can come up with innovative new TV hardware to one where a centralized, unaccountable private authority gets a veto right over new devices.

DRM licensing schemes like this are innovation killers. Prime example: DVDs and DVD players, which have been subject to a similar central authority, and haven’t gotten a single new feature since the DVD player was introduced in 1995.

DRM is also incompatible with fundamental limits on copyright, like fair use.  Those limits let you do things like record a daytime baseball game and then watch it after dinner, skipping the ads. Broadcasters would like to prevent that and DRM helps them do it. Keep in mind that bypassing or breaking a DRM system’s digital keys—even for lawful purposes like time-shifting, ad-skipping, security research, and so on—risks penalties under Section 1201 of the Digital Millennium Copyright Act. That is, unless you have the time and resources to beg the Copyright Office for an exemption (and, if the exemption is granted, to renew your plea every three years).

Broadcasters say they need this change to offer viewers new interactive features that will serve the public interest. But if broadcasters have cool new features the public will enjoy, they don’t need to force us to adopt them. The most reliable indicator that a new feature is cool and desirable is that people voluntarily install it. If the only way to get someone to use a new feature is to lock up the keys so they can’t turn it off, that’s a clear sign that the feature is not in the public interest.

That’s why EFF joined Public Knowledge, Consumer Reports and others in urging the FCC to reject this terrible, horrible, no good, very bad idea and keep our airwaves free for all of us. We hope the agency listens, and puts the interests of millions of Americans above the private interests of a few powerful media cartels.

Republished from the EFF’s Deeplinks blog.

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It’s not enough to simply go after anyone looking kinda Venezuelan these days. DHS components have an unquenchable thirst for arrest stats, especially now that Trump’s second Oval Office stay has removed any remaining discretion and restraint from border control actions. Installing Trump supplicant Kristi Noem to the top spot in the DHS has only made things worse, providing the administration with a pliable action figure with its own unquenchable thirst for power and all the cool shit that comes with it.

To make it easier to arrest brown people, the administration has recently declared hundreds of miles of border to be “military zones.” This serves two purposes. First, it helps shore up the administration’s shaky assertions blatant lies that we’re actually in the middle of the war, which aids and abets its resurrection of the Alien Enemies Act. Second, it gives the government a second set of charges to levy against migrants who happen to wander into these largely unmarked areas: unlawful entry of military property.

With this addition, it’s no longer just a civil offense to be undocumented. It’s now a federal charge with military add-ons. These charges would also apply to any US citizens (white people) who wander into these newly declared war zones, but of course, they’ll never be used that way. Everyone knows that, especially those involved in the erection of this military zone fantasy.

The U.S. Attorney for the District of New Mexico says a total of 82 people have been charged through Thursday for unauthorized entry into the military’s new buffer zone along the border with Mexico.

A completely expected outcome. However, this has led to another development that’s not going to make Trump and his border thugs happy. As the New York Times reports, one judge is tossing these charges just as quickly as they’re being filed:

A federal judge this week dismissed charges against nearly 100 migrants detained under a Trump administration effort to arrest undocumented migrants for trespassing on a newly declared “national defense” zone along New Mexico’s border with Mexico.

The order from a federal magistrate judge, Gregory B. Wormuth, added to the confusion and legal turmoil that have gripped New Mexico in the month since President Trump declared a ribbon of land along the 180-mile length of the state’s southern border to be an Army base.

The court called bullshit on these charges, dismissing both the cases and the boilerplate the government relied on to bring these charges.

“The United States provides no facts from which one could reasonably conclude that the Defendant knew he was entering” the New Mexico National Defense Area, the newly declared military installation, Judge Wormuth ruled.

[…]

Nearly identical charges against hundreds of other migrants could also soon be thrown out, given what the judge described as the prosecution’s “cut-and-paste approach to factual allegations.”

Heartening to see, but the federal government is generating these charges at a rate only the most dedicated court could even hope to keep pace with. The new charge — one that only exists because the government has claimed new military zones suddenly exist — is a misdemeanor that could result in a year in jail. It’s unlikely to ever result in that. Instead, it will be added to migrants’ rap sheets and used against them in future deportation proceedings as evidence of their criminal behavior should they attempt to return to the United States. It will also be used to deny entry visas, asylum applications, and any of the legal routes to US citizenship.

According to the NYT, at least 400 people — all of them migrants — have been hit with these charges. There will be more and it will be up to the courts to dismiss these, since it’s clear no one patrolling the border cares how many people they lock up as long as those people simply look like they might be from another country.

And there’s another side effect of unilaterally declaring certain parts of the border to be military zones. The police state being created at the border is already starting to spread inland.

The Department of Homeland Security has asked for 20,000 National Guard troops to assist with immigration roundups across the country, and the Pentagon is reviewing the unusual request, a U.S. official confirmed to The Associated Press.

[…]

Unlike the troops deployed at the southern border, these National Guard units would come from the states and be used to assist in deportation operations in the interior of the country.

If that’s going to be the new normal, you can rest assured these “military zones” will increase in size as well, swallowing up rural communities and the roads connecting them. Once everyone gets used to soldiers doing immigration work, it won’t take much of a nudge to have them start pitching in with regular law enforcement work. There may be no grand design behind this, but you’d better believe there are enough gun-totin’, god-fearin’, good ol’ boys in the nation willing to pretend the Gadsden flag only means something when there’s a Democrat in the White House. And they’re more than willing to sacrifice everything America used to mean if it brings them just a little closer to creating the America they’ve always wanted.

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They may claim they care about the children, but the Republican push for age verification laws, book bans, and the general censorship of anything not specifically straight and (preferably) white is all about preventing adults from accessing content these lawmakers don’t personally care for. The kids are merely useful leverage for legislators pushing for the codification of their particular moral standards.

For no real reason at all other than their desire to control what content others can access, two Republican Congress members have decided it’s time to enact a federal obscenity standard, as Elizabeth Nolan Brown reports for Reason:

Sen. Mike Lee (R–Utah) wants to redefine obscenity in a way that could render all sorts of legal sexual content illegal. His proposal would make the definition of obscenity so broad that it could ban even the most mild pornography, and possibly even more.

Lee and Rep. Mary Miller (R–Ill.), who introduced a companion bill in the House, have made no secret of the fact that the Interstate Obscenity Definition Act (IODA) is intended to get porn off the internet. “Our bill updates the legal definition of obscenity for the internet age so this content can be taken down and its peddlers prosecuted,” Lee said as he introduced the legislation.

But his proposed definition of obscenity is “so broad” that the TV show Game of Thrones could fall under its purview, suggests Ricci Joy Levy, president and CEO of the Woodhull Freedom Foundation.

Senator Lee gives away part of the game in his statement. This isn’t about prosecuting actual obscenity cases. It’s all about whipping up a chilling effect that’s frigid enough to encourage plenty of self-censorship. It’s all stick and no carrot, crafted as broadly as possible in hopes of encouraging prosecutors to crack down on people engaged in protected speech to prevent their expression from reaching their intended audiences.

What the law would do is erase Supreme Court precedent. Since there’s no federal law defining obscenity, the Supreme Court has created what’s known as the Miller test — something that requires judges to consider not just the content, but the context and its possible value as protected expression. This law would eliminate the test and replace the community standard (what the “reasonable person” might think of the contested content) with whatever Mike Lee and the bill’s supporters think should be considered protected speech.

The Supreme Court’s obscenity test has three prongs the government must satisfy to pursue obscenity charges. This bill still keeps the prongs, but renders them mostly useless by declaring pretty much anything sexual to be criminally obscene.

[R]ather than requiring that something depict or describe sexual conduct in a “patently offensive” way in order to be considered obscene, Lee thinks basically all depictions of sexual conduct or erotic nudity could count as obscenity.

The other worrying aspect of Lee’s bill [PDF] is a paragraph that, at first, seems to have no bearing on the rest of the proposed law.

(b) OBSCENE OR HARASSING TELEPHONE CALLS IN THE DISTRICT OF COLUMBIA OR IN INTERSTATE OR FOREIGN COMMUNICATIONS.—Section 223(a)(1)(A) of the Communications Act of 1934 (47 U.S.C. 223(a)(1)(A)) is amended, in the undesignated matter following clause (ii), 19 by striking ‘‘, with intent to abuse, threaten, or harass 20 another person’’.

Why is this tacked on to the end of an anti-porn bill? And why is it there solely to sever intent from a criminal act, which is the sort of thing that leads directly to abuse of these laws? Obviously, there’s a reason Mike Lee has added this clause to his bill, but it’s not exactly clear why he’s so interested in stripping criminal intent from a clause about “obscene or harassing telephone calls.”

But there’s a good chance it has something to do with preventing anyone — including adults — from accessing content Mike Lee would clearly like to ban. Here’s Nolan Brown, suggesting one possible reason for this addition to the bill:

All sorts of sex work that relies on video calls—whether via a dedicated web-camming platform or some other service—could potentially be banned by removing the requirement that “obscene” calls be harassing or abusive in order to be criminal.

The proposed change would possibly allow for targeting phone sex operators and dirty phone calls, too. While Lee’s revised definition of obscenity concerns visual depictions, not words, it still seems to allow for obscenity to exist in other contexts. In short, it defines all pornographic images as illegal obscenity, but it does not limit illegal obscenity to pornographic images.

That leaves room for phone calls that include sex talk to be labeled obscene even when everyone involved is a consenting adult.

That’s what happens when you strip intent from criminal laws. It means you can turn victimless, voluntary interactions into criminal acts. Harassment cases generally need a victim to instigate criminal proceedings. With this clause being rewritten, all the government needs to demonstrate is that an “obscene” communication took place, even if there was no victim and no one acting with criminal intent.

This isn’t Mike Lee’s first attempt to rewrite the obscenity standard in his own image. Lee tried this in 2022 and it went nowhere. But maybe he feels there’s a better chance of survival with Trump back in the White House and state legislatures all over the nation jumping on the censorship bandwagon, equally willing to ignore the Constitution and decades of Supreme Court precedent. Hopefully, this one will soon join his previous attempt in the dustbin of bad ideas. But even if it does, something equally stupid, pushed by someone equally stupid, will be ushered into existence to take its place.

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Here’s a question about the First Amendment and social media companies that used to just be in the realm of crazy law school hypotheticals: What makes social media sites “state actors” subject to constitutional constraints? For years, we heard from some that merely talking to government officials was enough — at least according to Vivek Ramaswamy, RFK Jr., and (disgraced) Yale Law professor Jed Rubenfeld. They argued, with increasingly creative (and decreasingly convincing) legal theories, that if a White House staffer sent an angry email about content moderation, that transformed Meta into an arm of the state.

But now we have an actually interesting scenario: What if the government officials literally own and run the social media companies?

Ramaswamy and Rubenfeld wrote an op-ed in the WSJ arguing that Section 230 alone made tech companies into state actors. Then, Rubenfeld joined RFK Jr. to make this argument in court, after Meta suspended some of RFK Jr.’s anti-vax nonsense. That argument failed in court as judges (rightly) noted that none of this turned companies into state actors. There would have to be a much clearer (and more coercive) relationship between government actors and social media companies.

But now we face a situation that makes those earlier claims look quaint: two of the most powerful people in our government — Donald Trump and Elon Musk — literally own and control major social networks. Does that finally make these platforms actual state actors? After all, ExTwitter and Truth Social aren’t just getting stern emails from government officials — they’re directly controlled by a sitting President and the guy who appears to have totally unprecedented and unlimited authority to reshape the federal government.

At the very least, the argument is way, way stronger than what the likes of Rubenfeld and RFK Jr. were arguing in court.

Eventually, someone had to try to make this argument for real, and it appears that someone is a rando named Thomas Richards.

According to the complaint he filed last month in the Northern District of Texas (where ExTwitter now tries to force all lawsuits to be filed due to its notably Musk-friendly judges), Elon Musk has been shadowbanning him. And, the complaint argues, because of Musk’s government-status, that means that ExTwitter is a state actor, and thus any shadowbanning infringes on his First Amendment rights.

While I’ve argued this exact theory might have merit, Richards’ complaint is, unfortunately, a mess. Filed by an out-of-state lawyer (apparently ignoring local counsel requirements), it’s bloated with irrelevant details and conspiracy theories masquerading as supposed “religious expression.” The core claim — that low engagement on his posts proves shadowbanning — is weak on its face. But the legal theory presented is even worse:

The Court’s intervention is urgently needed because under the clear precedent of Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001), when a private entity becomes “entwined” with governmental authority, it becomes subject to constitutional constraints. And here, the link is even tighter. X’s owner and controller, Elon Musk, simultaneously holds significant federal authority as a Special Government Employee heading the Department of Government Efficiency (“DOGE”), created by executive order on President Trump’s first day in office … This entwinement is further cemented by extraordinary financial ties — Musk invested approximately $300 million to help elect Trump, and his companies have received over $15.4 billion in government contracts.

Although recent reports suggest Mr. Musk may soon leave his governmental position, this timing — occurring immediately after receipt of Plaintiff’s demand letter — appears transparently strategic and does not negate the constitutional violations that have occurred while he exercises official authority. Moreover, Musk’s extraordinary government access will continue regardless of formal title, as evidenced by his: a) ongoing Top Secret security clearance, b) high-profile visits to the Pentagon, NSA, and CIA within a single month (March-April 2025), and c) documented back-channel communications with defense leadership.

The systematic suppression of Mr. Richards’ religious speech through sophisticated algorithmic techniques or manual censorship is not protected by Section 230 of the Communications Decency Act, which only immunizes actions “voluntarily taken in good faith to restrict access to or availability of material.” X’s deceptive practices — publicly denying shadowbanning while simultaneously engaging in it — fail the statute’s explicit “good faith” requirement, especially when senior legal leadership explicitly denies the very practices the company is implementing.

Musk’s actions as both government official and platform owner also directly violate the January 20, 2025 Executive Order on “Restoring Freedom of Speech and Ending Federal Censorship,” which explicitly prohibits federal government officials from “engag[ing] in or facilitat[ing] any conduct that would unconstitutionally abridge the free speech of any American citizen.” As a Special Government Employee heading DOGE, Musk is bound by Section 3(a) of this Executive Order, which states that “No Federal department, agency, entity, officer, employee, or agent may act or use any Federal resources in a manner contrary to section 2 of this order.” His systematic suppression of Mr. Richards’ religious expression while simultaneously exercising governmental authority creates liability under both this Executive Order and the First Amendment.

The thing is, there really is a legitimate question here about whether government officials running social networks creates state action. It’s the kind of question that a law student could write an earnest paper about: “What if the government just… bought Facebook?”

But Richards’ complaint isn’t going to be the vehicle that answers it. For one thing, there’s a fundamental misunderstanding of Section 230 (conflating (c)(2)’s good faith provision with (c)(1)’s broader protections) suggests someone who skipped the basic reading. For another, there’s the small matter of claiming millions in damages from shadowbanning an account that admittedly never grew beyond 4,000 followers. And it’s barely worth mentioning the fact that there appears to be no local counsel on the complaint, which seems to violate the rules.

The complaint reads less like a serious constitutional challenge and more like the kind of thing you’d find pinned to a community center bulletin board in crayon. There are pages upon pages of conspiracy theories about everything from religious persecution to shadowy government psyops. Also, conspiracy theories about how content moderation works. It’s the kind of write-up that makes you wonder if maybe the shadowbanning wasn’t entirely algorithmic after all.

The judge assigned to the case, Brantley Starr — a Trump appointee and Ken Starr’s nephew — is less than impressed by Richards’ attempt to get a temporary restraining order.

On the present record, Richards does not meet the high standard for a temporary injunction. Richards must show that the “facts and law clearly favor” the injunctive relief. Richards argues that because the owner of X Corp., Elon Musk, took a temporary position as a special government employee, the platform is converted into a government forum, and thus subject to liability as a government actor. This is a novel argument, and far from clear in the terms of either controlling law or the facts in the record. It is clear that the law is not so overwhelmingly obvious that this Court should enter a mandatory injunction against X Corp. granting Richards ultimate relief at the outset of this litigation based on the current record. Therefore, the Court finds the application for a temporary restraining order should be DENIED WITHOUT PREJUDICE.

The judge’s dismissal is exactly what you’d expect for this particular complaint. But the underlying questions aren’t going away. At some point, courts are going to have to figure out when a government official’s control of a social media platform crosses the line into state action. And they’ll need to answer some pretty fundamental questions: Is there a meaningful distinction between Trump running Truth Social while President (which seems… not great?) and Musk running ExTwitter while reshaping federal agencies with wild abandon (which seems… also not great?)? Can private platforms maintain any real independence when their owners are literally writing executive orders about how the government should work?

These aren’t just fun law school hypotheticals anymore. They go to the heart of how we balance free speech rights in an era where government officials aren’t just trying to influence social media through stern emails and mean tweets — they’re actually buying, creating, and running the platforms themselves. We need a better case to test these theories. Preferably one that doesn’t include pages of conspiracy theories about psyops and religious persecution.

There’s one more layer of absurdity here worth exploring. Remember when Elon Musk insisted that the Biden campaign (not administration — this was before they took office) sending warnings about links with leaked Hunter Biden’s dick pics to Twitter was such egregious government interference that it must violate the First Amendment?

Just to be clear: A presidential campaign (not in power) alerting a private company about leaked intimate photos was, in Musk’s view, unconstitutional government censorship. But now that same Elon Musk is literally running both the government and what’s left of Twitter, and suddenly government control of social media seems… totally fine?

The voices that spent years screaming about government “censorship” whenever a White House staffer sent a mean email have gone mysteriously quiet now that their preferred officials aren’t just influencing social media companies — they’re running them from inside the government. It’s almost as if their constitutional principles extend only as far as their political preferences. This won’t shock anyone around here, but it still deserves to be called out explicitly.

Perhaps there’s a certain cosmic justice in watching the person who bought Twitter to “prevent government censorship” become, quite literally, the government doing the censoring. Though it would be nice if, at some point, the judicial system noticed.

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Telecom lobbyists have been working overtime for decades in the US and EU, trying to get policymakers to support the idea of “Big Tech” paying “Big Telecom” billions of additional dollars for no coherent reason. It’s what started the net neutrality wars. More recently, it has evolved into claims that we need to tax streaming companies to help fund broadband deployment.

This taxation effort always involves some variant of the (false) claim that popular tech services are getting a “free ride” on the Internet. So it’s “only fair” that they help pay telecom giants for broadband expansion that is, quite mysteriously, perpetually only half finished despite billions in taxpayer subsidies already.

Such efforts popped up again last week with the introduction of the Lowering Broadband Costs for Consumers Act of 2025 (S. 1651), sponsored by Senators Markwayne Mullin, Mark Kelly, Mike Crapo, and Kevin Cramer.

The bill would update Section 254 of the Communications Act to make tech companies pay into the Universal Service Fund (USF), which helps bring broadband access to underserved neighborhoods, libraries, and schools. In reality, that means a new surcharge on all of your streaming video and online services, making those services (already consistently facing rate hikes) even more expensive.

It would, contrary to the bill’s name, do nothing to actually lower broadband costs for consumers. That would require actually standing up to powerful telecom monopolies. It would make streaming services more expensive. In exchange for fiber deployments that, if U.S. history is any guide, probably won’t materialize. Especially under our current corrupt authoritarian regime.

On its surface, requiring that tech companies contribute to the USF isn’t the dumbest idea in the world. If it was well managed and launched in good faith.

The USF is funded primarily by surcharges on dying copper voice lines. As those connections die off, the contribution base has shrunk. So foundationally, the idea that you’d shore up a low-income, rural broadband subsidy program with the help of tech companies isn’t the most insane concept ever. Again, if it was well managed and launched in good faith by competent people.

Here’s the problem: U.S. telecom subsidy programs have a long, long history of giants like AT&T and Verizon taking billions of dollars for networks they then fail to deploy. They’re routinely defrauding U.S. subsidy programs because we routinely fail to hold these companies accountable. We fail to hold them accountable because they’re politically powerful and tied to our domestic surveillance systems.

Enter Trumpism, which already has a long history of botching subsidy programs (like the FCC’s RDOF program) resulting in a ton of additional fraud and waste. At the same time, Trumpism’s assault on the regulatory state is making it almost impossible for regulators to hold companies accountable for any fraud, whether it’s ripping off government programs or harming consumers with price gouging.

So in essence you’d be throwing billions of additional dollars at large telecom companies with rich histories of fraud, overseen by corrupt incompetents with their own vast experience in defrauding taxpayers. People actively ending the government’s ability to do anything should AT&T, say, take billions in exchange for fiber networks it then fails completely to fully deploy. Or, say, rip off programs designed to help school kids.

There’s the added complication that an even more radical wing of Trumpism is currently trying to outlaw the USF entirely. The deeply unserious Fifth Circuit recently ruled the USF unconstitutional based entirely on the baseless claims of a fake, weird, right-wing “consumer group” simply upset at the idea government program might help people.

The Supreme Court is poised to make a ruling in that case any day now. I suspect they’ll keep the USF intact, which will (quite intentionally) create more pressure to “fix the USF” and implement something like this new tax on big tech. But contrary to the narratives being pushed by telecom industry backed think tankers or guys like Trump FCC boss Brendan Carr, this isn’t a good faith effort (though there are some smaller and more rural telecoms that support it because their survival depends on the USF).

The real goal is to create a largely unaccountable slush fund for companies like AT&T, Comcast, and Verizon with rich histories of abuse. Again, run by the worst sort of corrupt incompetents imaginable. The resulting funds are far more likely to go toward outsized executive compensation and stock buybacks than meaningful rural fiber deployment.

The press is, and will, flub this story badly, falsely framing it as a good faith effort to “bridge the digital divide” and lower consumer costs. In fact, that’s already happening:

Again, many of the groups and providers that depend on the USF to survive will support this because a corrupt hot mess of a reform is better for them than the USF dying. That doesn’t inherently make this particular reform “good” or well intentioned by its architects (which again, is the biggest telecoms).

As this story emerges in the weeks and months to come, one thing to look out for when trying to recognize bad actors is to try and spot the folks claiming that tech companies get any sort of a “free ride” on the internet. We’ve been debunking this flimsy claim for literally decades now.

Tech companies already pay billions of dollars annually for bandwidth, cloud, CDN, transit, undersea cable, and other infrastructure. Google technically is already a broadband provider when you factor in Google Fi (wireless) and Google Fiber. When it comes to U.S. telecom, nobody gets a free ride thanks to corruption, consolidated monopoly power, and market failure policymakers refuse to address.

Again, leveraging billions in tech company money to shore up broadband access isn’t the worst idea in the world. It’s just that this particular application isn’t being done in good faith, and it’s going to be implemented by one of the most corrupt federal governments the U.S. has ever seen. The outcome is obvious. I can see it coming before the news cycle even fully takes off.

The billions of dollars in new fees and misdirected consumer anger that will come as a result of this effort is probably something tech companies should have thought about before they tripped over their own asses to support Trumpism. It wasn’t hard to see coming. Trump earlobe-nibbler Brendan Carr has been telegraphing this whole plan for a while, including in his chapter in Project 2025.

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Since the start of the Trump administration, many of our biggest concerns about how MAGA would attack free speech have not only proven true, but have turned out to be understated. Nearly all parts of the administration are seeking to silence critical speech. Meanwhile, the self-proclaimed “free speech warriors” who signed the infamous Harper’s Letter five years ago have gone mysteriously quiet. They were absolutely frantic about “cancel culture” for years, but when actual government censorship comes along? Crickets.

A (seriously incomplete) list of current attacks on speech includes the FCC’s Brendan Carr’s multiple investigations over protected speech, the FTC’s Andrew Ferguson’s attempts to punish speech, interim US Attorney for DC Ed Martin’s series of increasingly unhinged letters to people and organizations over their speech, and, of course, the attacks on foreign college students for things like writing an anodyne op-ed the administration disliked.

And I won’t even get into Donald Trump’s habit of directly threatening people for their speech like some dollar store dictator, including his weird threat to Bruce Springsteen late last week, in which he tells Springsteen he “ought to KEEP HIS MOUTH SHUT until he gets back into the Country” and “then we’ll all see how it goes for him!”

In this context of actual attacks on free speech, you’d expect the self-appointed Free Speech Brigade to be manning the barricades and sounding every alarm. But where are they? Probably busy drafting another letter about how someone was mean to them on the site formerly known as Twitter.

Five years ago, Harper’s Magazine published a fluffy, mostly content-free “letter on justice and open debate.” As someone who has spent decades fighting for and writing about free speech, I found the letter to be beyond useless. While there were legitimate attacks on free speech at the time, the letter did basically nothing to grapple with them. Instead, it used vague language to create a false equivalency between actual attacks on free speech with people just facing some consequences (mainly social opprobrium), mostly allowing people facing the latter to act as though they were facing the former.

In short, it allowed a group of overly sensitive writers who were upset about the criticism they faced to hide behind the few actual cases of attacks on free speech while pretending they were one and the same. Harper’s asked me to write (a very short) response to the letter, and this was what I churned out at the time.

After days of debate involving every conceivable perspective on the open letter—on social media, on blogs, on podcasts, in other publications, and in private conversations—I have concluded that the letter’s concern that “the free exchange of information and ideas . . . is daily becoming more constricted” is unfounded and frankly confusing.

Clearly there is robust debate on a variety of subjects, including many that not long ago were considered to be outside the boundaries of public discourse. “The free exchange of information and ideas” is perhaps stronger and more widely accessible today than ever before.

Oddly, the letter ignores more distinct threats to free speech: libel lawsuits that block legitimate criticism, abuse of copyright laws to hamper commentary and culture, and legal threats that intimidate speakers into silence.

Instead, the letter alludes to examples of publications exercising their editorial discretion, and speakers facing social consequences driven by vigorous counter-speech, while omitting the details. If any of these examples deserves serious debate and consideration, the letter fails to foster or even enable it, and certainly does not engage in it.

I also, as a pointless thought exercise, tried to write an alternative letter for what the Harper’s Letter could have said if it actually wanted to be useful. I still think that was pretty good, highlighting how, thanks to the internet, the world had become actually more free and more open to debate, but with that there was “a changing societal consensus on what is, and what is not, appropriate” and at times, this possibly went too far, mainly in that when people tripped over certain lines, some were too quick to assume malice. As I wrote then:

At the same time, in our ongoing and righteous zeal to revisit areas that were previously overlooked and underexplored, there are times when people may go too far. There are times when the nuance and details and context are not initially clear, and some people — including ourselves — may overreact. That overreaction often leads to consequences which, when the full situation is explored and understood, seem unfair. We should seek to be aware that this may happen, and try to avoid it. Furthermore, we should recognize that as fallible as humans are, we will sometimes discover this too late, and should seek to rectify it when we do.

The details will always matter. We should not assume simplistic narratives all of the time, when often there are mixed motivations and complex factors and variables involved. There may be situations that appear similar on the surface, but upon deeper exploration turn out to be quite different. We should be willing to explore those details and to recognize that, sometimes, people we like will face consequences for their speech for an extended pattern of truly reprehensible behavior.

However, we should leave space open for people to learn and to grow. We should recognize that a single misdeed may be innocent and should treat it as such. We should see how people respond to such feedback. At the same time, we should also recognize that a pattern and practice of questionable and hurtful behavior may suggest a person who is deliberately, and in bad faith, seeking to game the system.

The biggest problem I had with the original letter was simply that many of the signatories were clearly using it, deliberately and in bad faith, to game the system to their own advantage. That is, they wished to stake out ridiculous (and, at times, harmful) positions and not be challenged or criticized for those positions. In many ways, the Harper’s Letter itself was way more censorial than anything it claimed to criticize. “How dare you criticize my speech with your speech!” is essentially what it boiled down to for many signers. Free speech for me, but not for thee.

This wasn’t true of all signers, some of whom had legitimate grievances. But the list of signers was full of faux speech martyrs who were effectively standing on the shoulders of the very few people legitimately concerned with these issues, screaming “look how canceled I am!”

In the years since, little has caused me to change my opinion of the letter and its signers. A couple of years ago, I called out some of the signatories for cosplaying as free speech martyrs, and that seems to still be true.

So you might think that now that the attacks on free speech have moved even beyond the ones I had raised at the time of the Harper’s Letter (censorial defamation lawsuits, abuse of intellectual property law) and certainly beyond the perceived threats the signers crowed about (“cancel culture”) that they might speak up a bit? At least a little?

But, nope.

David Klion over at The Nation notes that the vast majority of the signers of the Harper’s Letter have stayed entirely silent regarding pretty much everything that’s going on. He points to a piece from In These Times from last month which even created a spreadsheet looking at all the signatories. It turns out that when actual attacks on free speech happen, many of them go silent:

… high-profile ​“free speech” advocates such as Bari Weiss, Jonathan Haidt, David Brooks, David Frum, John McWhorter, and Malcolm Gladwell have either remained silent or championed the arrests. A review of the signatories of the now-infamous 2020 Harper’s Letter shows that of those who could issue statements (those who are still alive and not retired from public life), only 24 percent who put their name on the letter defending ​“Open Debate” have come out in opposition to Trump’s war on campus free speech. Some, like Harvard’s Steven Pinker, have aggressively spoken out about Trump’s withdrawing of funding from higher education, but have been notably quiet on the kidnapping of international students for the supposed crime of political speech.

If you find this shocking, I have an exciting, if slightly scratched, bridge in Brooklyn to sell you. The letter was never about protecting free speech — it was about insulating certain people from criticism. “Free speech” was just the sneaky little facade they put on it to make their argument look respectable.

This weekend, we saw yet another absolutely perfect example of this kind of free speech hypocrisy in action. Many of the signatories to the Harper’s letter were also big fans of the unaccredited, hilariously pretentious “University of Austin,” which got a lot of attention for claiming that it would be a university that supported “free speech” (in the misleading sense of the Harper’s Letter), “academic freedom,” and “heterodox” thinking. Really, the only qualifications for being associated with the University of Austin seemed to be that you had to have been criticized for taking a stupid position on something. A university run by the perpetually aggrieved doesn’t seem all that interesting, but it’s a home for some folks.

Bari Weiss both signed the Harper’s letter and helped to create UATX and remains a trustee of the organization. Jonathan Haidt signed the letter and is on the advisory board. Coleman Hughes signed the letter and is listed as a visiting professor at UATX. There are others as well. The Venn diagram of Harper’s Letter signatories and UATX affiliates isn’t quite a circle, but you might need a microscope to find the differences.

Again, as with the Harper’s Letter, it was obvious from the beginning that the people behind the University of Austin never actually believed in actual free speech. They just wanted a “university” (very much in sarcasm quotes) where their beliefs wouldn’t be regularly challenged and mocked as unserious.

This weekend, there was a hilarious piece in Quillette, which is basically the far-too-serious publication of the perpetually silly faux speech martyr, in which Ellie Avishai wrote about how she was drummed out of the University of Austin for posting a very bland LinkedIn post that quoted Yale Psychologist Michael Strambler’s article suggesting that both sides on the debate over DEI (Diversity, Equity, and Inclusion) were going too far.

Whether you feel that’s a reasonable argument or not, it’s obviously trying to create some middle ground. And for that, Avishai — who has apparently been whining about Harvard (where she received her doctorate) being too woke because they… asked students to “reflect” on how to be more inclusive (the horror) — was told her services were no longer needed at the University of Austin:

My colleague told me that we needed to talk about a social-media post of mine that “had become a big problem.” I rarely post anything online, so I was confused about what he meant. Apparently, it had something to do with DEI, and had angered a major funder. “We’re trying to slow things down,” my colleague told me. I got the impression that he was upset about the message he was delivering.

[….]

By 5pm on 3 March—the same day I first heard that my LinkedIn post was a “problem”—my team of five and I were all on our way to being pushed out of UATX. I got the news from a junior dean whom I barely knew. He told me bluntly, “the trustees and the management have decided that we’d like to wind up Mill, and I’m calling to let you know that we’re letting you go.”

So much for “academic freedom,” huh? Who could have possibly predicted that the Free Speech University would cancel someone for expressing a moderate opinion? I mean, besides literally everyone?

The University’s response was pretty much exactly what you would expect: Why would we let someone say something nice about DEI when DEI is bad?

When a Quillette editor contacted UATX for comment in regard to the events and issues discussed in this article, we received the following response: UATX is unapologetically opposed to DEI. We believe these programs institutionalize ideological orthodoxy, lower academic standards, and promote a view of human identity that undermines individual dignity. That position is central to our mission*.*

Of course, that’s exactly what they whined about at other universities, screaming their silly little heads off about how it was against the “pursuit of knowledge” and “academic freedom” for students and faculty to dare suggest that some topics were beyond the pale.

But, apparently, the only subject that is beyond the pale is: DEI.

And, like, you can take that position (as silly and backwards as it is), but it’s way worse than anything any university has done to promote diversity, equity, and inclusion in the first place.

It was never about free speech, academic freedom, or heterodoxy. It’s about being free to say whatever offensive thing you want and never, ever having to face criticism for it. It’s “heterodox” in the same way North Korea is a “People’s Democratic Republic.” It is, in many ways, way more censorial, more against academic freedom, and more rigidly orthodox than anything any actual university is doing.

We’ve pointed out for a while now how many of the people who described themselves as “free speech warriors” over the last decade were not just cosplaying, but were actually using the language of free speech to justify the suppression of speech. This is just one more example to throw on the pile.

From Techdirt via this RSS feed

The Kids Online Safety Act (KOSA) is back in the Senate. Sponsors are claiming—again—that the latest version won’t censor online content. It isn’t true. This bill still sets up a censorship regime disguised as a “duty of care,” and it will do what previous versions threatened: suppress lawful, important speech online, especially for young people.

KOSA Still Forces Platforms to Police Legal Speech

At the center of the bill is a requirement that platforms “exercise reasonable care” to prevent and mitigate a sweeping list of harms to minors, including depression, anxiety, eating disorders, substance use, bullying, and “compulsive usage.” The bill claims to bar lawsuits over “the viewpoint of users,” but that’s a smokescreen. Its core function is to let government agencies sue platforms, big or small, that don’t block or restrict content someone later claims contributed to one of these harms.

This bill won’t bother big tech. Large companies will be able to manage this regulation, which is why Apple and X have agreed to support it. In fact, X helped negotiate the text of the last version of this bill we saw. Meanwhile, those companies’ smaller competitors will be left scrambling to comply. Under KOSA, a small platform hosting mental health discussion boards will be just as vulnerable as Meta or TikTok—but much less able to defend itself.

To avoid liability, platforms will over-censor. It’s not merely hypothetical. It’s what happens when speech becomes a legal risk. The list of harms in KOSA’s “duty of care” provision is so broad and vague that no platform will know what to do regarding any given piece of content. Forums won’t be able to host posts with messages like “love your body,” “please don’t do drugs,” or “here’s how I got through depression” without fearing that an attorney general or FTC lawyer might later decide the content was harmful. Support groups and anti-harm communities, which can’t do their work without talking about difficult subjects like eating disorders, mental health, and drug abuse, will get caught in the dragnet.

When the safest legal option is to delete a forum, platforms will delete the forum.

There’s Still No Science Behind KOSA’s Core Claims

KOSA relies heavily on vague, subjective harms like “compulsive usage.” The bill defines it as repetitive online behavior that disrupts life activities like eating, sleeping, or socializing. But here’s the problem: there is no accepted clinical definition of “compulsive usage” of online services.

There’s no scientific consensus that online platforms cause mental health disorders, nor agreement on how to measure so-called “addictive” behavior online. The term sounds like settled medical science, but it’s legislative sleight-of-hand: an undefined concept given legal teeth, with major consequences for speech and access to information.

Carveouts Don’t Fix the First Amendment Problem

The bill says it can’t be enforced based on a user’s “viewpoint.” But the text of the bill itself preferences certain viewpoints over others. Plus, liability in KOSA attaches to the platform, not the user. The only way for platforms to reduce risk in the world of KOSA is to monitor, filter, and restrict what users say.

If the FTC can sue a platform because minors saw a medical forum discussing anorexia, or posts about LGBTQ identity, or posts discussing how to help a friend who’s depressed, then that’s censorship. The bill’s stock language that “viewpoints are protected” won’t matter. The legal incentives guarantee that platforms will silence even remotely controversial speech to stay safe.

Lawmakers who support KOSA today are choosing to trust the current administration, and future administrations, to define what youth—and to some degree, all of us—should be allowed to read online.

KOSA will not make kids safer. It will make the internet more dangerous for anyone who relies on it to learn, connect, or speak freely. Lawmakers should reject it, and fast.

Reposted from the EFF’s Deeplinks blog.

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