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April 2020
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Anti-Vaxxer Sues Facebook, In The Middle Of A Pandemic, For 'In Excess' Of $5 Billion For Shutting Down His Account

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When I write about this new lawsuit, filed on behalf of "retired MMA fighter" Nick Catone, against Facebook for removing his account over his anti-vaccine posts, you may expect that it was filed pro se. However, somewhat shockingly, there's an actual lawyer, James Mermigis, who filed this dumpster fire of an awful complaint. Mermigis does not appear to have any experience in internet law, and boy does it show. His various profiles online list his experience in divorce law, real estate law, and personal injury law. His own Twitter feed is basically all just wacky anti-vax nonsense, and, late last year, he was quoted as representing people trying to block a NY law removing a religious exemption for vaccines. We've gone over this many times before, but spewing junk science and angry rants that are literally putting tons of people in danger is no way to go through life, and it's certainly no way to file a lawsuit. Especially not in the midst of a pandemic where a vaccine sure would be nice.But, alas.The filing is bad, and Catone and Mermigis should feel bad about it. It will be quickly dismissed under CDA 230, even though (hilariously) it claims that Facebook's moderation of Catone's account "violates" CDA 230 (which is not a thing, as you cannot "violate" CDA 230). This lawsuit is like a collection of misunderstood tropes about internet law. It starts with this:

As the United States Supreme Court noted in Packingham v. North Carolina.... Facebook is part of the "vast democratic forum of the Internet." Packingham extended the concept of a quintessential public forum from parks and physical spaces to cyberspace.
Packingham is kind of the go to citation from bad lawyers trying to argue that having your content moderated on Facebook violates the 1st Amendment. It's been tried many, many times, and it has always failed because Packingham does not say what these people want it to say. Packingham said that the state cannot pass a law that kicks people off of the internet. It says nothing about private social media companies removing idiots spewing misinformation from their own sites.Indeed, an even more recent Supreme Court ruling, in Manhattan Community Access v. Halleck, not only shoots down the idea that content moderation on private social media websites is subject to the 1st Amendment, it spells it out in big flashing letters that it's a bad idea to even try to make that argument because private companies are not the state. Packingham only applies to the state.But that's not going to stop Mermigis. He goes on for a while about how big Facebook is, then rewrites history to suggest Facebook really only started doing content moderation after people were upset about... Cambridge Analytica and the 2016 election? Of course, the Cambridge Analytica issue wasn't a content moderation issue, so much as a privacy and data sharing issue, but hey, someone's trying to make a case out of very, very little. I'll just include this paragraph and point out that Facebook's community standards and content policy team dates back many, many, many years before 2016:
To assuage an angry public and ultimately to protect its own financial interests, Facebook announced plans to create and enforce so-called "community standards" for content published on its site. These standards are directed toward speech that Facebook regards as inimical to a "safe environment."
So, again, that's not when or why Facebook put in place community standards. Also, the final sentence of this paragraph basically admits that Facebook's moderation efforts are in good faith, which makes this an even easier CDA 230 dismissal than most.Even more hilarious, the complaint whines that Facebook's community standards are too vague. But, uh, yeah. That's the point. When you have multiple billions of people posting content on your site, the rules need to be vague, because every day there are millions of "edge" cases that need to be looked at and have decisions made on whether or not the content is appropriate. That's why CDA 230 lets sites decide for themselves how to moderate. The complaint is literally making the case for why it should be thrown out on 230 grounds.
Among the content that Facebook finds "objectionable" is bullying and harassment. Facebook does not provide a definition for what bullying or harassment is. However it does provide a broad definition that may cover almost anything: "Bullying and harassment happen in many places and come in many different forms, from making threats to releasing personally identifiable information, to sending threatening messages, and making unwanted malicious contact."
[....]The standards is hopelessly vague. As Facebook itself notes "[c]ontext and intent matter, and we allow people to share and reshare posts if its clear that something was shared in order to condemn or draw attention to bullying and harassment."Facebook reserves the right to remove the "offensive" posts without notifying the user or giving the user an opportunity to clarify or edit his post. Moreover, Facebook reserves the right either temporarily or permanently to disable an account for violation of its "community standards" policy.
Uh, yeah. It reserves that right. And it has every right to, and if you don't like it, don't use Facebook. But not only did Catone use Facebook, it appears that he tried to build a local gym business based entirely on Facebook. There is a bit of a tragic backstory here, in that Catone lost an infant son, and seems to believe that vaccines had something to do with it, and thus sometimes posts typical anti-vax content. That's what appears to have lead to the suspension of his account -- especially since Facebook has ramped up its removals of anti-vax nonsense in the last few months.The problem here is that Catone (1) seemed to rely solely on Facebook for building up business for his new gym, and (2) mixed that account with posting his anti-vax screeds. So now he's blaming the fact that he was (reasonably, and well within Facebook's rights) banned from the site for trouble getting business going to his gym.
Plaintiff, Nick Catone MMA & Fitness, has used Facebook as the main way to grow and advertise the fitness center. In 2019, Plaintiff spent $15,564.17 in advertising. Plaintiff is currently spending $1800-2000 per month advertising with Facebook.Plaintiff purchased a 32,000 square foot building for his fitness center in 2018 and Facebook has been a huge part of his financial growth. Plaintiff needs Facebook to showcase his fitness center.
Uh, yeah, that's not how any of this works. I need Facebook to give me a pony, but the pony just ain't showing up. Unless Catone signed some sort of contract with Facebook in which Facebook promised to "showcase" his fitness center, he has no rights to speak of here. Catone, it appears, made the poor business decision to exclusively focus on using Facebook to build his business. Incredibly, it appears that Catone failed to set up an alternative means of running his business, relying entirely on Facebook, according to the lawsuit:
As a direct and proximate result of the acts and omissions of the Defendants, Plaintiff can no longer operate his business. Plaintiff cannot check messages, reply to posts or access his business page. The censorship threatens his livelihood as he invests $30,000 per month to run his business and has no access to run his business as he runs it through Facebook....If Facebook does not immediately reinstate Plaintiff's account and access to this account, Plaintiff stands to lose an unconscionable amount of money and may lose his business that he has invested millions of dollars in.
Nick, I think I see the root of your problem, and it ain't Facebook. If you set up your entire business there, didn't set up your own website or email or alternative way to get in touch with you... that seems to be indicative of your own bad business decisions. And you don't get to sue others over those. That's not how any of this works.Also fun is the way in which Catone's posts that got his account in trouble are described:
Like many of his fellow citizens, the Plaintiff, Nick Catone is a thinker who, regardless of whether he is right or wrong, loves to share his thoughts and hear the thoughts of others. He regularly posts on Facebook about his deceased infant son and the vaccines that contributed to the death of his son, seeking to engage in debate the community of friends whose respect he has gained.The Plaintiff, Nick Catone, used Facebook for open discussion regarding the safety and effectiveness of vaccines. Plaintiff felt that should be and [sic] open discussion to debating the merits of this serious public question.
Nick may think that, but that doesn't mean Facebook needs to host it.Also, Nick, Mark Zuckerberg didn't personally decide to censor your to "deflect attention" from Facebook scandals, even if your lawsuit claims that's what's going on:
Upon information and belief, Mr. Zuckerberg harbors political ambitions beyond his role as principal of Facebook. His decision to categorically censor the speech of concerned citizens including that of Nick Catone is intentional and is inspired by ill-will, malice, and a desire to deflect attention from himself and Facebook's practice of surreptitiously mining data for profit from consumers who believe they are receiving a free service devoted primarily to their welfare.
I'm sitting here trying to figure out the galaxy brain explanation for how "censoring" "thinkers" as part of an apparently malicious campaign, deflects attention from totally unrelated Facebook scandals or somehow helps his apparent political ambitions. I guess I'm not a "thinker" because I just don't see it.Anyway, claims. We've got 'em. They're not good, but they exist. According to the lawsuit it violates Section 230 of the CDA if you moderate:
The Communications Decency Act provides immunity from civil liability for materials published on interactive computer service sites. The provision of immunity was intended to avoid "content-based" chilling of freedom of speech in the "new and burgeoning Internet medium." Section 230 was enacted, in part, to preserve the robust nature of speech on the Internet. These principles were clear articulated in Zeran v. America Online....
Yeah, Mermigis, you gotta keep reading beyond that, because the way in which CDA 230 protects free speech online is by not allowing you to sue them for their moderation choices, because such dumb lawsuits would chill the ability to host any content online. I mean, dammit, you're a lawyer, at least read part (c)(2) of CDA 230 where it outright explains that you can't sue an internet company over its moderation choices -- which you admitted earlier were clearly in good faith.The next bit is just nonsense. I know there are other lawsuits out there (mostly those stupidly claiming "bias" in takedowns) but they all fail and this one will too, because this is not the law. It's the opposite of what the law says and no court has ever come close to this interpretation in dozens upon dozens of cases involving CDA 230.
Facebook enjoys immunity from suit under Section 230 of the CDA as a Congressionally mandated means of ensuring free and robust speech on the Internet. The privileged status necessary entails a corresponding responsibility to achieve the very goal for which Congress granted immunity: to wit, the preservation of free speech on a quintessential public forum.
No. That's not what the law says, not what it intended, not what it means, and no court has ever interpreted it that way because the law actually explicitly states the reverse -- that in order to support family friendly spaces on the internet, platforms face no liability for the moderation choices they make -- including booting off people spewing pseudo-science hogwash that puts people in harms way.
Facebook's enjoyment of immunity from civil liability for the material it transmits on the Internet transforms its editorial decision-making process into management of a constructive public trust.

The manner and means by which the defendants have banned the Plaintiff from engaging in free speech on Facebook are a violation of the CDA and constitute a willful and wanton violation of the terms of the constructive public trust.
That's gibberish. It is not what the law says. And, again, dude, CDA 230 is an immunity provision. You can't "violate" it.From there, we get into more gibberish: claiming that Facebook moderation violates the 1st Amendment. Again, this argument has been rejected numerous times, and many of those times the argument was made more competently than it was made here (and it's never been made competently, since it's legally nonsense). Facebook is a private company. It's not the government. Its actions around moderation literally cannot violate the 1st Amendment. To try to get around this, the complaint actually tries to argue that the CDA turns Facebook into a state actor. I only wish I were kidding.
The CDA's grant of immunity is integral to the government's purpose of promoting freedom of speech on the Internet. As such, the symbiosis between Facebook and the United States government transforms Facebook's action into state action under the doctrine enunciated in Burton v. Wilmington Parking Authority....
Uh, no. The Buron case is not even remotely analogous (that involved a government parking lot and a strip of retail stores that the government leased out to a coffee shop to help generate revenue to pay for the parking garage). That, uh, is nothing like a private company moderating its own space. And, honestly, we've got the Manhattan Cable case from literally last year that seems a hell of a lot more on point. Let's quote from the Supreme Court ruling from last summer:
when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine....The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively explained, it is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment.
To argue against that -- that the CDA by itself automatically turns any internet forum into a state actor -- is laughable beyond belief. It's not an argument a lawyer should be making.From there we get some silly add-on claims about "fraud," "implied warranty," "intentional and malicious interference" etc. These are the kind of toss-in extra claims one adds to try to add heft to an already weak complaint. They are not well argued and are barely comprehensible.And how can I leave out the damages request for in excess of $5 billion. Even that is argued in a weird, roundabout way. Rather than just asking for $5 billion like your average complaint, this one spends a bunch of paragraphs talking about totally unrelated things:
In April 2019, Facebook set aside a sum of $5 billion to use to pay an anticipated fine by the Federal Trade Commission involving systematic breaches of consumer privacy. Even so, the Defendants forecast significant profits.
Apparently Mermigis' research failed to find out that after setting aside that sum in April, the FTC went ahead and issued that fine against Facebook in July and Facebook paid up. Crack research there, buddy. Either way, what does that have to do with anything? Apparently, that now sets the floor for any damages for one Mr. Nick Catone:
Punitive damages in a sum sufficient to punish and deter Facebook for violating the First Amendment, the Communications Decency Act, for engaging in fraud, unfair or deceptive trade practices, intentional and malicious interference with prospective economic advantage and breaching the implied warranty of fair dealing. Because a sum of $5 billion appears to be insufficient to deter Facebook, the plaintiffs ask the jury for a sum significantly in excess of that amount.
Good luck, champ. Oh, and for what it's worth, I see that the punitive damages statement includes some for "unfair and deceptive trade practices" but as far as I can tell, they never actually claim that in the lawsuit -- which is a bold strategy. Anyway, this complaint should be a case study in how not to internet law. I assume the courts may be a bit slow to act, seeing as we're dealing with a pandemic, and not have time for a guy who wants to demand that private internet sites host his speech regarding evil vaccines, but this case will be dismissed in time. Perhaps by then we'll have a vaccine for COVID-19. That would be nice.

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posted at: 12:00am on 28-Mar-2020
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FBI Says It Will Only Accept Snail Mail FOIA Requests Until Further Notice, Due To Coronavirus Concerns

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With the Coronavirus grinding everything to a halt (except for stock market losses! [sobs in 401(k)]), it's understandable that public services would be affected as well. The unexpected shift to telecommuting means everything is going to slow down as public and private entities figure out how to still serve customers/citizens while still keeping the spread of the virus to a minimum.But none of that explains this completely incomprehensible response from the FBI, which appears to be using the virus as a way to become even more tight-fisted with its stash of FOIA-able files. "FOIA terrorist" Jason Leopold reports the FBI is seeking to serve the public in the worst way possible during this national health crisis.

A message posted on the FBI's Freedom of Information Act website Tuesday says:"Due to the emerging COVID-19 situation, the FBI is not accepting electronic Freedom of Information/Privacy Act requests or sending out electronic responses through the eFOIPA portal at this time. You may still submit a FOIPA request via standard mail. We apologize for this inconvenience and appreciate your understanding."
Left unexplained by the agency is how sending out snail mail -- which could conceivably carry a bit of COVID with it -- is preferable to email requests, which can only infect others if they insist on opening sketchy attachments.This is also against the law, unless the administration decides it's going to suspend FOIA law until the it's declared safe to act sane again. The regulations governing FOIA responses say all federal agencies must have the capability to "receive requests electronically" either via email or their FOIA portals. It appears the FBI has simply chosen to ignore its online portal and its capability to receive emailed requests.Even if lower staffing levels might result in slower responses, the agency's virus response shouldn't be to switch off the online portal and direct everyone to another government service that itself might be negatively affected by the virus in the near future.But there's more to it than this inexplicable explanation for shutting down the internet-friendly side of its FOIA services. Those bothering to send snail mail shouldn't expect responses, either.
Katie Townsend, the legal director for the Reporters Committee for the Freedom of the Press, told BuzzFeed News that in a FOIA case she is litigating, an assistant US attorney filed court papers Tuesday saying the office that handles the FBI's FOIA requests is "closed at least until March 30, 2020 because of the current coronavirus outbreak."
This has been confirmed by other attorneys involved in FOIA litigation with the FBI. The regulation-dodging statement on the FBI's website doesn't inform requesters that the FBI won't be touching any requests for the rest of the month. The FBI -- through its lawyers -- insists this all very logical because FOIA response personnel can't work from home due to security issues. Even if so, encouraging people to climb into an FOIA time machine to take them back before the internet was a thing isn't helping anyone but an agency that would rather not answer FOIA requests at all.

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posted at: 12:00am on 21-Mar-2020
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People In Kashmir Can't Access Coronavirus Information Because The Government Is Crippling The Internet

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As we've been discussing for a while, India's government has blacked out internet access in Kashmir since around August, setting records for one of the longest government-mandated internet blackouts in history. India's Prime Minister Narendra Modi has tried to argue that the blackout is a necessary security precaution in the face of growing unrest in the region stemming from its loss of autonomy earlier this year. Granted, like most government internet censorship efforts, the move has a lot more to do with cowardice and fear of an informed public than any genuine concern about public welfare.Despite the Indian Supreme Court declaring such restrictions illegal last January, the problem persists. And as a pandemic threatens the planet, these restrictions are making it hard for the residents of Kashmir to access essential medical information on COVID-19:

Worse, the government, just this week, actually expanded the existing restrictions until March 26, insisting they were necessary to "prevent misuse of social media applications" in the wake of "recent terror activities":
One local tells Buzzfeed the ham-fisted, counterproductive restrictions have made it difficult if not impossible for locals to access information on the rapid spread of COVID-19:
"I can't open even basic websites that provide information and advice about the pandemic, Nayeem Rather, a freelance writer based in Srinagar, the largest city in the state of Jammu and Kashmir, told BuzzFeed News. Most people in Kashmir don't really have any information about the coronavirus or what is going on in the world right now. It's a crisis."Mir Moien, a medical student from Kupwara, a small town in northern Kashmir, said that the most he's able to do right now is a Google search to find out information about the pandemic. But I can't actually click on any search results to read more, Moien said. On WhatsApp, the Facebook-owned instant messaging app that most Indians use to communicate, most information about the pandemic comes through charts and videos that are impossible to download over the slowed-down 4G networks, according to Moien. It's a catastrophe, he said.
Some authorities have been uploading video alerts to Twitter, but because of the restrictions, most locals can't see them. As a result they're being forced to get all of their information from local news outlets that seem largely interested in artificially inflating the accomplishments of regional politicians. In turn, rumors and dis/misinformation are spreading quickly via Whatsapp and word of mouth, with no ability for citizens to research and confirm the claims. As a result, the local population there doesn't understand the scope of the pandemic threat, and many lack access to information that could protect the region from harm.Governments that engage in such heavy-handed internet censorship and filtering may feel like they're in control, but this is yet another example of how such ham-fisted restrictions actively undermine society as a whole.

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posted at: 12:00am on 19-Mar-2020
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Clearview Was A Toy For Billionaires Before It Became A Toy For Cops

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Clearview's claims that its controversial facial recognition program is only for use by law enforcement agencies continues to be exposed as a lie. Documents obtained by BuzzFeed showed the company has sold its tech to a variety of private companies, including major retailers like Kohl's and Walmart.It's also expanding its reach across the globe, pitching its products to dozens of countries, including those known mostly for their human rights violations. Even when it limits itself to law enforcement agencies, it still can't help lying -- exaggerating its success and assistance in criminal investigations.Before Clearview became a plaything for government agencies and private corporations, it was a toy for the rich and powerful. Kashmir Hill -- who broke the first story about Clearview's problematic image-scraping operation -- has a followup in the New York Times detailing the company's unpleasant origin story.

One Tuesday night in October 2018, John Catsimatidis, the billionaire owner of the Gristedes grocery store chain, was having dinner at Cipriani, an upscale Italian restaurant in Manhattan’s SoHo neighborhood, when his daughter, Andrea, walked in. She was on a date with a man Mr. Catsimatidis didn’t recognize. After the couple sat down at another table, Mr. Catsimatidis asked a waiter to go over and take a photo.Mr. Catsimatidis then uploaded the picture to a facial recognition app, Clearview AI, on his phone. The start-up behind the app has a database of billions of photos, scraped from sites such as Facebook, Twitter and LinkedIn. Within seconds, Mr. Catsimatidis was viewing a collection of photos of the mystery man, along with the web addresses where they appeared: His daughter’s date was a venture capitalist from San Francisco.“I wanted to make sure he wasn’t a charlatan,” said Mr. Catsimatidis, who then texted the man’s bio to his daughter.
That's just one anecdote. There are others. Investors approached by Clearview, like venture capitalist Hal Lambert, explored the power of Clearview's app in pretty irresponsible ways. Lambert allowed his school-aged daughters access to the app. And it appears actor/investor Ashton Kutcher was given access to the app. He described an app that sounds exactly like Clearview when he appeared on the YouTube series "Hot Ones" last September.
“I have an app in my phone in my pocket right now. It’s like a beta app,” Mr. Kutcher said. “It’s a facial recognition app. I can hold it up to anybody’s face here and, like, find exactly who you are, what internet accounts you’re on, what they look like. It’s terrifying.”
It is terrifying. And far more people have had access to it than Clearview has admitted. Plenty of potential investors were given access to the app. It's not clear how many still have access, but it appears their use of the app went unmonitored/uncontrolled by Clearview. Understandably, investors want to know if the thing they're looking to invest in works, but Clearview did nothing to ensure this access was limited or used responsibly. That same attitude has carried over to its pitches to law enforcement, which encourages cops to use friends and family members as guinea pigs for tech it claims should only be used for legitimate law enforcement efforts.Power and responsibility are supposed to go hand-in-hand. There's none of that happening here. Clearview compiled a database by scraping images from hundreds of websites and is now selling this access to pretty much anyone willing to buy it.

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posted at: 12:00am on 17-Mar-2020
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