Germany Officially Gives Up On Free Speech: Will Fine Internet Companies That Don't Delete 'Bad' Speech
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Yeah, yeah, before you rush to the comments and start justifying this by saying that Europe doesn't respect free expression in the same way the US does, let's just say while that may be true, this is still bad: Germany has moved forward with a plan to fine internet companies which don't quickly censor the internet. Censor what, though? Three loosely defined (and easily abused) categories: hate speech, criminal material and fake news.Social media companies face fines of up to €50m (£43m) if they persistently fail to remove illegal content from their sites under a new law passed in GermanyThe German parliament on Friday approved the bill aimed at cracking down on hate speech, criminal material and fake news on social networks - but critics warn it could have drastic consequences for free speech online. And, yes, again Europe has very different standards for free expression -- and Germany, in particular, has a long history of trying to suppress what it considers "bad" speech regarding some of its historical actions (Godwin'd!). Even so, this is dangerous and will be abused to stifle all sorts of important expression:The German justice minister, Heiko Maas, who was the driving force behind the bill, said: Freedom of speech ends where the criminal law begins. Maas said official figures showed the number of hate crimes in Germany increased by more than 300% in the last two years. Even accepting that free speech ends where criminal law begins, that doesn't justify fining the platforms. If people are posting "illegal" content, go after them for breaking the law. Don't go after the tools they use. By putting massive liability risks on platforms, those platforms will almost certainly overcompensate and over censor to avoid any risk of liability. That means a tremendous amount of what should be protected speech gets silence, just because these companies don't want to get fined. Even worse, the big platforms can maybe hire people to handle this. The littler platforms? They basically can't risk operating in Germany any more. Berlin is a hotbed of startups, but this is going to seriously harm many of them.The new law also has an even weirder provision, putting liability not just on the platforms, but on individual employees at online platforms who are designated the Chief Censors for that platform:Aside from the hefty fine for companies, the law also provides for fines of up to €5m for the person each company designates to deal with the complaints procedure if it doesn't meet requirements. Who the hell is going to want that job? Make one mistake in failing to censor something, and you may be bankrupted.Just a little while ago we wrote about how difficult it can be for a platform to be calling the shots on what's worth censoring and what's not. Since there's so much content, the analysis of each piece of content needs to be standardized in a manner that tends to be absurd. It appears that those supporting this law don't have any interest in the realities involved, but think that by passing this legislation, they've waved a magic wand. Yes, putting liability onto platforms (and employees) will likely lead to greater suppression of speech people dislike -- but also of important and necessary speech. There appears to have been no effort to consider how dangerous that might turn out to be.
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posted at: 12:00am on 01-Jul-2017
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Lawyer Deploys Faulty Subpoena Demanding Evidence Preservation, Fails To Impress Lawyer Receiving It
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When a lawyer sends a demand to another lawyer, the one doing the sending had better be on top of their law game. Otherwise, things will go badly. And when they go badly, they end up being discussed here.Conservative blogger (and lawyer) Scott Johnson got hit with a subpoena ordering him to preserve evidence possibly relevant to a legal challenge of Trump's travel ban from a courtroom halfway across the country. The advance subpoena informed Johnson of his pending obligation to preserve (with production expected later) certain notes pertaining to certain blog posts pertaining to his attendance of a reception for conservative writers held by Trump at the White House.The problem with the proposed subpoena and evidentiary preservation demands is they weren't actually, you know, legal.On June 10, I was served with a letter and draft subpoena from Tana Lin of the Keller Rohrback law firm’s Seattle office alerting me to my “document preservation obligations with respect to documents that are relevant or potentially relevant to this litigation.” Lin represents plaintiffs in Doe v.Trump, venued before Judge James Robart in the federal district court for the Western District of Washington.Though the lawsuit had been stayed, pending a recently issued ruling from the Ninth Circuit in the parallel Hawaii v. Trump “travel ban” case, Judge Robart authorized Lin to notify me of the lawsuit and seek my confirmation by June 15 that I would preserve potentially relevant documents until such time as she sends me a formal subpoena or the lawsuit is formally resolved. The "potentially relevant documents" included any notes Johnson might have taken during this meeting and specifically referenced the same notebook Johnson referenced in his detailed post about the reception. To wit:Although there was some degree of difficulty writing while standing, I took notes on the questions and Trump’s answers in my new notebook from CVS. Johnson -- who knows a few things about federal procedures -- immediately fired a letter back to Tana Lin, telling her she had the wrong statute.The final sentence of your letter in bold type cites Rule 34(a) of the Federal Rules of Civil Procedure. Rule 34(a) applies to a “party” to litigation. I am not a party. I am a “nonparty.” As such, Rule 34(c) would apply to me. Unless I am missing something, I find your instruction to me that I am “required” to do anything under Rule 34(a) highly misleading. He also informed her the correct statute wasn't going to be of much help either.Rule 34(c) cross references Rule 45. As a distant nonparty to the litigation, Rule 45 gives me certain rights once you serve me with a valid subpoena. Yet the draft subpoena you have served on me is a nullity.[...]Once I have objected to the subpoena under Rule 45, the rule would require you to seek an order enforcing compliance in the United States District Court for the District of Minnesota. I understand that Minnesota Attorney General Lori Swanson has joined you in the litigation. Perhaps you can assign enforcement of the subpoena to Ms. Swanson. I’m sure Minnesota taxpayers would enjoy the opportunity to see up close and personal how she is expending the resources of her office to hound a journalist for his utterly superfluous notes in the service of your litigation. Lin called the reference to the wrong statute a "typo," but it really makes no difference which statute was cited: Johnson is a private individual who just happened to be invited to a reception thrown by the president. It's not like he had some preexisting obligation to retain the notebook for X number of years just in case someone might need it for future litigation. As he points out, he's not a government agency. He took notes for a planned blog post. He had no "duty" to preserve them then and there's not much in the proposed subpoena showing any legal reason why he can't throw them out now.What's concerning about this -- no matter which side of the travel ban you come down on -- is that litigants fighting an executive order somehow feel private non-parties should be compelled to turn over their private notes on the off-chance there might be something damning hidden in them. Johnson calls it "harassment" and he's not wrong. This is no different than anyone in any situation using the weight of the government to compel journalists to produce information about sources and contacts when they're not party to ongoing lawsuits or expected to serve as witnesses.Beneath it all is a lawyer who slid a subpoena request past an inattentive judge, citing statutes that don't say what she thinks they say. That's a lot of power to be wielding badly, considering it's mostly bad things that wait for those who reject a judge's advances.
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