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Five Years Ago

This week in 2020, there was something of a spat between Donald Trump and Twitter. Trump announced a panel to study “anti-conservative bias” on social media, and went on some crazy Twitter tirades that raised complicated content moderation questions, and we wrote about what a mess the whole thing was. Then, Trump released a draft of an executive order about social media that was legally meaningless, and didn’t get any better in the official version. Mark Zuckerberg made some ridiculously wrong and self-serving statements about Twitter fact checking, and we explained why fact checking the president is not evidence of anti-conservative bias.

Ten Years Ago

This week in 2015, a disappointing Supreme Court ruling sided with patent trolls, while the Obama administration filed a totally clueless argument in another case about software copyrights. A judge in Ohio was getting fed up with Malibu Media, Richard Prince’s latest art project continued pushing the boundaries of copyright law, and Cox was facing a lawsuit from Rightscorp that they called “extortionate”. The UK government was going Full Orwell with its suppression of free speech, while a UN report came out strongly in defense of encryption and anonymity online. This was also the week that Silk Road mastermind Ross Ulbricht was sentenced to life in prison.

Fifteen Years Ago

This week in 2010, Lady Gaga joined the ranks of musicians who weren’t freaking out about piracy, while James Murdoch was giving confused lectures about copyright. We wondered why politicians kept using unlicensed music in their commercials, and why customs officers should be in charge of determining what counts as a copyright circumvention device. Infamous copyright trolls were out in force, with US Copyright Group threatening ISPs that refuse to cough up user names and commencing its mass lawsuit program for the producers of Hurt Locker, while ACS:Law was trying to get people who deny infringement to incriminate themselves. And one bizarre copyright fight broke out over the millennia old Tao Te Ching.

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There’s a great deal that is absurd about copyright law in America, but its most basic absurdity remains the length of time for which the copyright monopoly applies. The length of copyright protection a work gets depends on a number of factors. Was the work published before or after 1978? Was it renewed, if the former? Was it published anonymously or by a named individual? Was it work for hire? The answer to all of these impact the term length of copyright for an individual work. Keep that preamble in mind as we go through the rest of this conversation.

Fanin County High School in northern Georgia had scheduled a two day, two play production of The Crucible, the famed play by Arthur Miller which tells the story of the Salem Witch Trials as an allegory for McCarthyism. The school canceled the second day’s production, however, due to what it said is a copyright issue.

In a statement released by the high school, Principal Dr. Scott Ramsey and other school leaders said they’d “received several complaints as to an unauthorized change in the script of the play.”

While the changes themselves were not detailed, and Channel 2 Action News has reached out for more information, school officials said the copyright violation from their license of the play made their decision for them.

“Upon investigation, we learned that the performance did not reflect the original script. These alterations were not approved by the licensing company or administration. The performance contract for The Crucible does not allow modifications without prior written approval. Failing to follow the proper licensing approval process for additions led to a breach in our contract with the play’s publisher,” school officials said. “The infraction resulted in an automatic termination of the licensing agreement. The second performance of The Crucible could not occur because we were no longer covered by a copyright agreement.”

Unfortunately some key details here are hidden behind the school’s vague statements. What were the changes? That seems important, as it would be good to know just how substantial these changes were. Who discovered the changes and raised the alarm over the licensing? Was a member of the licensor really in the audience during the first performance and blew the whistle? Did the school do this proactively, indicating some sort of chilling effect?

While those are all valid questions, let’s really take a step back to get a sense of how absurd this is. A school made apparently some material performance changes to a play and that violated its licensing agreement such that performances would then violate the play’s copyright. A play, mind you, that was first published in 1953 and the author for which died in 2005. So, in a world where The Crucible is 72 years old, 23 years from its copyright expiration, and the creator dead for two decades… a group of high school children can’t put on the play they worked so hard to prepare for because of vague changes to the performance?

In what world would we call that copyright sanity?

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When NPR sued Donald Trump Tuesday, it had an easy argument to go with. Normally, in First Amendment retaliation cases against the government, you have to pull together a bunch of disparate strands to prove the retaliatory intent of the actions. But as NPR noted in its filing, and as Justice Scalia once wrote about obvious constitutional violations: “this wolf comes as a wolf.” Trump’s executive order cutting public media funding doesn’t even pretend to hide its retaliatory nature — it literally calls NPR and PBS “biased media” in the title.

Republicans have been gunning for public media for decades, but historically, every time Congress tries to cut funding, outcry from their constituents is so overwhelming that nothing ever happens. It turns out tons of people (including Republican voters) actually like NPR and PBS. But Trump skipped Congress entirely and simply declared that public media wouldn’t be receiving any more federal funding — because he thinks their coverage hurts his feelings.

Federal funding for public media is already a bit confusing because very little of it actually goes directly to NPR and PBS. The funding mostly goes to local affiliates, many of which then do use it to purchase syndicated programming from NPR and PBS.

NPR’s complaint is refreshingly straightforward: this is textbook viewpoint discrimination that violates the First Amendment, separation of powers, and due process. As the lawsuit notes, the Supreme Court made clear just last year (in the Moody v. NetChoice case) that “it is no job for government to decide what counts as the right balance of private expression — to ‘un-bias’ what it thinks biased.”

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox” in matters of politics or opinion. West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). As the Supreme Court reiterated just last year, “it is no job for government to decide what counts as the right balance of private expression— to ‘un-bias’ what it thinks biased, rather than to leave such judgments to speakers and their audiences.” Moody v. NetChoice, LLC, 603 U.S. 707, 719 (2024). These fundamental First Amendment principles apply in full force in the context of public media and doom Executive Order 14290, which expressly aims to punish and control Plaintiffs’ news coverage and other speech the Administration deems “biased.” The Order also violates due process, the Separation of Powers and the Spending Clause of the Constitution. See U.S. Const. Art. I, § 8, cl. 1. It cannot stand.

What makes this case so obvious is that Trump hasn’t even tried to hide the retaliatory motive (because he doesn’t realize it’s unconstitutional and doesn’t much care about that). The executive order and accompanying materials openly attack NPR’s editorial choices:

On May 1, 2025, President Trump issued Executive Order 14290, entitled “Ending Taxpayer Subsidization of Biased Media” (the Order), 90 Fed. Reg. 19415, which contradicts these statutory precepts and violates the Constitution. Contrary to Congress’s intent to support an independent public radio and television system, and statutory requirements that expressly shield the Corporation and entities like Plaintiffs from governmental interference, the Order directs federal agencies as well as the Corporation to withhold all federal funding from NPR and the Public Broadcasting Service (PBS). The Order further directs the Corporation to “cease indirect funding to NPR and PBS” by mandating that local radio and television stations that receive grants from CPB, like the Local Member Stations, not use those federal funds to acquire NPR or PBS programming, and by revising existing grant agreements to prohibit grantees “from funding NPR or PBS.”…

It is not always obvious when the government has acted with a retaliatory purpose in violation of the First Amendment. “But this wolf comes as a wolf.” Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting). The Order targets NPR and PBS expressly because, in the President’s view, their news and other content is not “fair, accurate, or unbiased.” Order § 1. And the “Fact Sheet” and press release accompanying the Order, which echo prior statements by President Trump and members of his Administration, only drive home the Order’s overt retaliatory purpose. They deride NPR’s content as “left-wing propaganda,” and underline the President’s antipathy toward NPR’s news coverage and its editorial choices. See “Fact Sheet: President Donald J. Trump Ends Taxpayer Subsidization of Biased Media” (May 1, 2025) (asserting that NPR published articles “insist[ing] COVID-19 did not originate in a lab” and “refused to cover the Hunter Biden laptop story”); 1 Press Release, “President Trump Finally Ends the Madness of NPR, PBS” (May 2, 2025) (asserting that NPR “apologized for calling illegal immigrants ‘illegal’”).

It’s a bit surprising that PBS and NPR aren’t suing together, though the news side of NPR reports that PBS is looking into suing:

PBS is not a party to the lawsuit. The television network issued a statement Tuesday morning saying, “PBS is considering every option, including taking legal action, to allow our organization to continue to provide essential programming and services to member stations and all Americans.”

NPR also notes that the case has been assigned to the same judge, Randolph Moss, who is handling a different, but similar lawsuit, in which the Corporation for Public Broadcasting had sued Trump after he tried to fire a bunch of its board members.

Look, you can argue the federal government shouldn’t fund any media (though that would devastate rural communities that rely on public broadcasting). But even if that’s your position, such decisions belong to Congress, not a president with hurt feelings. And they absolutely cannot be made based on viewpoint discrimination.

Trump managed to violate both principles simultaneously — casually torching separation of powers while engaging in the kind of obvious retaliation against media that would be more fitting in authoritarian countries with dictators Trump admires. NPR’s lawsuit should be a slam dunk, assuming we still have courts willing to enforce the Constitution when it’s inconvenient for presidents.

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Elon Musk may claim he’s leaving the government, but regardless of whether he or anyone DOGE leaves the damage has been done, and their potential legal exposure to it remains.  And with this decision earlier this week, some of the litigation pursuing it made headway.

As we’ve written before, Judge Chutkan has had Musk and DOGE’s number for months, noting early on in this case, New Mexico v. Musk, one of the first challenges brought directly against them, that it appeared they had been acting without constitutional authority as it vandalized the federal government. Nevertheless, despite these suspicions she declined to enjoin them because it was then not clear that the states could plead adequate irreparable harm. And then her award of expedited discovery was overturned on appeal because the government’s motion to dismiss was still pending. There is now a ruling on that motion, and in a brand new decision she has allowed the case against them to continue.

It is an important ruling in an important case, although at this point maybe not in the way it originally seemed when first filed. It was first filed as a vehicle to get DOGE out of the government altogether, and before they had the chance to do much more damage. Unfortunately the TRO was denied. Nevertheless, the dicta in the decision denying it observed that DOGE was probably acting unlawfully, and that language may have helped judges addressing other, more agency-specific cases challenging Musk and DOGE issue orders constraining what DOGE can do. However, none have managed to remove the DOGE blight completely, which has still been rampaging across the government (and even beyond!) breaking things, which then all require separate lawsuits to address and only after plenty of damage has already been done (and likely unlawfully). And this decision, at such an early stage, will not remove it either, although it does move us all one step closer to its potential eradication (even if Musk or anyone DOGE leaves under their own power, it might not be enough to contain the scourge without a court ensuring that the door is locked behind them adjudicating relief from the mess they’ve already made).

And it is notable in at least two other ways. One relates the issue of “ratification,” which has been confounding courts. It comes up when DOGE has done something destructive within an agency but then the agency personnel legitimately endowed with power make it seem like what DOGE did was actually their doing. Courts are still struggling to figure out what to do with all this wrongfulness, because there may be a slight but important legal difference between DOGE causing damage with absolutely no lawful authority versus agency officials causing damage by misusing the authority they do lawfully have. (This is why it appears that hybrid cases suing both DOGE and the agency officials may be the most successful because they target both actors.)

This case, however, targets only Musk and DOGE (and Trump initially, although this decision did dismiss him). But it is still useful and important. Not only because, if DOGE were squashed, there would then be no DOGE actions for any agency official to ratify. But it may also bear on the ratification issue because courts are starting to realize that if DOGE is acting unlawfully then it would be impossible for any agency official to legitimately ratify what it has done. Unfortunately the DC Circuit has yet to see things that way, but in this decision Judge Chutkan explained how an earlier case where it had accepted ratification as a way of excusing DOGE was inapplicable here. First she explains what happened in that case:

Alternatively, Defendants argue that, even if Musk directed others to take the “complained-of-actions,” States fail to establish that the actions “were not formally approved by a relevant agency actor with proper authority.” MTD at 23. Defendants insist Andrade v. Regnery, 824 F.2d 1253 (D.C. Cir. 1987) thus bars States’ claim. MTD at 24.

In Andrade, the D.C. Circuit held that the termination or demotion of federal employees under a reduction in force (RIF) program did not violate the Appointments Clause because a duly appointed officer with the statutory responsibility for demoting or firing employees ratified all actions taken in connection with the RIF before it went into effect. 824 F.2d at 1255–57. Even though unappointed staff planned and largely executed the RIF, it “did not abridge the requirements of the Appointments Clause” because a duly appointed official had “final authority” on the day it took effect and was “the legal architect” of the RIF. Id. at 1257. The D.C. Circuit explained that “it is an everyday occurrence in the operation of government for staff members to conceive and even carry out policies for which duly appointed or elected officials take official responsibility.”

But even if the government were correct, that ratification should sink this case because it would explain and legitimize all the complained-of harm, it couldn’t be grounds for dismissing the case yet:

The D.C. Circuit made that determination following summary judgment proceedings and with the benefit of a factual record that clearly established a duly appointed official ratified the contested actions. Id. at 1255–56. At this juncture, the court lacks a factual record and must accept States’ allegations as true. Iqbal, 556 U.S. at 678. States allege that Musk and DOGE personnel, not a relevant agency actor with proper authority, took the challenged actions. Compl. ¶¶ 60, 64–225. The court cannot accept Defendants’ contrary claim that agency actors signed off on all decisions.

But then she made a separate and likely more important point about how far ratification could actually go to exonerate DOGE’s offenses:

Moreover, Defendants improperly invert Andrade’s holding. They read Andrade to hold that Musk can lawfully direct actions by agency actors, so long as those actors were duly appointed. MTD at 22–23. But Andrade addressed the “everyday occurrence” of “staff members” carrying out policies adopted by “duly appointed or elected officials.” 824 F.2d at 1257. The apt analogy would be an appointed agency head directing Musk to carry out a policy, not the opposite. States allege that, rather than subordinate himself to duly appointed officials, Musk “reports only to President Trump,” Compl. ¶ 71, removes agency officials that stand in his way, id. ¶¶ 84–85, 137–38, or obtains compliance through threats and intimidation, id. ¶ 95. Andrade did not resolve whether an individual who has not been duly appointed may direct the actions of appointed officials, and extending its holding to encompass that scenario would be particularly inappropriate in the face of allegations that agency actors obeyed Musk’s directions to avoid legal action or termination.

The issue remains unresolved, and this language is also likely dicta, but it makes an important point. Agency officials have a lot of legitimate power but statutes, like the APA and other more agency-specific statutes, constrain that power, so there’s a limit to what they could do on their own volition (like, for instance, not close down their own agency). But the record seems to be showing that they are making these moves not of their own volition but at Musk and DOGE’s direction, and our constitutional order prevents them from legitimizing what Musk and DOGE have done via that path. The agency-specific cases will address that there was no lawful way to impose the harms that have ensued, but this case is about Musk and DOGE having tried to wield unlawful power to cause it. Those efforts are still wrongful even if they are not the only thing wrongful that happened to lead to the harm. And what the court seems to be suggesting here is that because the APA (etc.) forbade these actions, and yet they happened anyway, it helps show that Musk and DOGE were indeed the cause.

Which is another reason why this case is important, because Musk and DOGE ultimately need to be held personally liable for the resulting harm of how they exercised their lawless power. The decision summarizes much of it what they have done to date:

*Controlling Expenditures and Disbursements of Public Funds: States allege that DOGE obtained “full access” to payment systems at multiple agencies and used that access to halt payments. Id. ¶¶ 78–79, 85, 127–30. For instance, after the acting-Secretary at U.S. Department of Treasury refused to “halt” payments, DOGE personnel threatened the acting Secretary with “legal risk [] if he did not comply with DOGE.” Id. ¶ 84. Then, on February 2, DOGE obtained “full access” to Treasury’s Bureau of the Fiscal Services payment systems, which disburses funds for social security benefits, veteran’s benefits, childcare tax credits, Medicaid and Medicare reimbursements, federal employee wages, federal tax refunds, and facilitates state recovery of delinquent state income taxes. Id. ¶¶ 78–79, 85. That day, Musk posted on X that “[t]he @DOGE team is rapidly shutting down these illegal payments,” in response to a post by a non-profit organization receiving funds pursuant to government contracts. Id. ¶ 86.**Terminating Federal Contracts and Exercising Control over Federal Property: States allege that Musk and DOGE asserted responsibility for terminating federal contracts across the Executive Branch. Id. ¶ 203–04. DOGE reported the cancellation of “104 contracts related to diversity, equity, inclusion and accessibility (DEIA) at more than a dozen federal agencies” on January 31, id. ¶ 205; of “thirty-six contracts across six agencies” on February 3, id. ¶ 206; of “twelve contracts in the GSA and the Department of Education” on February 4, id. ¶ 207; and “cuts of $250 million through the termination of 199 contracts” on February 7, id. ¶ 208. States also allege that DOGE and Musk exercise control over federal property by demanding access to secure facilities and threatening intervention by U.S. Marshals when agency officials refuse, id. ¶¶ 94–95; by “push[ing]” high-ranking officials out of their offices at agency headquarters, id. ¶¶ 164–66, by terminating leases for federal property, id. ¶ 206, and by announcing plans to “liquidate as much as half of the federal government’s nonmilitary real estate holdings,” id. ¶ 160.**Binding the Government to Future Financial Commitments without Congressional Authorization: States point to the Fork in the Road Email, which offered federal employees pay and benefits through September 2025 if they resigned by February 6, as entering into binding financial commitments. Id. ¶¶ 116–20, 212.**Eliminating Agency Regulations and Entire Agencies and Departments: States allege that DOGE personnel took steps to dismantle USAID and CFPB. On February 3, DOGE personnel allegedly “handed” USAID’s acting leadership “a list of 58 people, almost all senior career officials, to put on administrative leave.” Id. ¶ 102. The next day, USAID placed “nearly its entire workforce on administrative leave.” Id. ¶ 103. When “USAID contract officers emailed agency higher-ups” for authorization to cancel programs, DOGE personnel responded directly. Id. ¶ 101. Musk posted on X “CFBP RIP” on the same day that Musk’s aides “set up shop . . . at CFPB’s headquarters” and CFPB’s website was taken down. Id. ¶¶ 146–47. Three days later, CFPB’s acting Director Russell Vought told all employees to “[s]tand down from performing any work task” and “not come into the office.” Id. ¶ 148.**Directing Action by Agencies: States allege that Musk and DOGE obtain compliance from agency officials and employees by threatening action by U.S. Marshals, legal risks, or termination. Id. ¶ 84 (threatening acting-Treasury Secretary with “legal risk”); id. ¶ 95 (threatening USAID personnel blocking access to facility with action by U.S. Marshals); id. ¶¶ 176–178 (DOL employees told to comply or “face termination”). States claim that if agency officials object or raise concerns, Musk and DOGE ignore or override the agency and place on administrative leave or otherwise remove non-compliant individuals. Id. ¶¶ 84–85 (acting-Treasury Secretary “placed on administrative leave” after refusing to halt payments); id. ¶ 110 (DOGE “gained full and unfettered access to OPM systems over the existing CIO’s objection”); id. ¶¶ 137–38 (DOGE representative was “installed” as the Department of Energy’s (“DOE”) “chief information officer” after DOE’s general counsel’s office and chief information office opposed DOGE’s access to DOE’s IT system); id. ¶ 166 (DOGE personnel “pushed” the “highest-ranking officials” at the Department of Education (“ED”) “out of their own offices”).**Acting as a Principal Officer Unsupervised by Heads of Departments: States allege that Musk acts and directs DOGE’s conduct without supervision by agency heads. For instance, States allege that Musk and his team sent the Fork in the Road Email “via a custom-built email system . . . withot consultation with other advisers to the President or OMB officials,” id. ¶ 120; that DOGE personnel at agencies do not “interact at all with anyone who is not part of their team,” id. ¶ 165; and that Musk “reports only to President Trump,” id. ¶ 71.*Obtaining Unauthorized Access to Secure Databases and Sensitive Information: States allege that Musk and DOGE personnel obtained access to secure databases and systems at Treasury, id. ¶ 85, USAID, id. ¶ 95, OPM, id. ¶ 110, the Department of Health and Human Services, id. ¶ 127, DOE, id. ¶ 137, ED, id. ¶¶ 164, 167, DOL, id. ¶¶ 177–78, National Oceanic and Atmospheric Administration, id. ¶ 190, Federal Emergency Management Agency, id. ¶ 194, and Small Business Association, id. ¶ 198.

While it would have been nice if personal liability could have been pursued earlier, to at least scare the minions away from helping Trump and Musk complete their destructive mission, the litigation that will eventually pursue it may be stronger with a judicial finding that Musk and DOGE’s actions were indeed illegal. And not something that any of them can escape even if they voluntarily stop – while it’s great if Musk or any DOGErs give up their access to government systems and services and stop causing even more harm, they should still be liable for the harm they have already caused.

And this decision in this case gets us one significant step closer to that day where they may have to pay.

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Any bit of data that isn’t nailed down by court precedent will apparently find its way into the hands of the US government.

For years, the DEA has been data mining traveler data in hopes of finding people carrying around “too much” cash. This effort has been such a windfall for the DOJ that the DEA has paid hundreds of thousands in rewards to airline and Amtrak employees that tip them off to travelers they might think might be boarding planes and trains with cash to seize.

For some employees of travel entities, it’s a viable side hustle they can engage in while still showing up for their day jobs.

[A]mtrak’s inspector general revealed that agents had paid a secretary $854,460 over nearly two decades in exchange for passenger information.

There’s doubtlessly a mercenary angle to this latest news on data purchases by federal law enforcement agencies, first reported by Edward Hasbrouck for Papers, Please!

A company you’ve probably never heard of is selling copies of every airline ticket issued by a travel agency in the US to the US Department of Homeland Security (DHS) and a plethora of other Federal law enforcement and immigration agencies — and who knows who else.

Records of all airline tickets issued by travel agencies in the US are being sold to US Immigration and Customs Enforcement (ICE) and other Federal law enforcement agencies, according to an ICE procurement document posted yesterday on a US government contract website and uncovered in a major scoop today by Katya Schwenk of Lever News.

According to the document found by Ms. Schwenk on SAM.gov, ICE is entering into a no-bid contract with theAirlines Reporting Corporation (ARC) “to procure, on a sole source basis, licenses for Travel Intelligence Program (TIP)… The vendor listed is the only company that can provide the required software licenses.”

If you’re using a third party to purchase airline tickets, odds are your data is running through ARC. It’s almost unavoidable. That means any sharing of data with ARC isn’t “voluntary,” at least not in the traditional sense. It’s the voluntary nature of the exchange that gives the Third Party Doctrine its power. Or at least it should be. Of course, that particular facet of this opportunistic sale of traveler data will get buried under the government’s protests that it’s entitled to obtain third party data without having to bother with warrants (or even subpoenas).

It’s the same reason ICE and others are buying location data from third party data brokers. It’s cheap, easy, and doesn’t create a publicly-observable paper trail the way search warrants do.

ARC has plenty to say on its site about the positive aspects of its data-sharing agreements with private companies like Expedia and its competitors. Nowhere on its site will you find any direct mention of its sale of this same ticket data to federal law enforcement agencies.

While travelers may understand they’re sharing information with the third party travel agents they’re doing business with, it’s highly unlikely they understand there’s yet another third party harvesting all of this information and providing it in bulk to the US government.

ARC doesn’t really want airline passengers to know it exists. And it certainly doesn’t want any of them to know its selling their ticket data to government agencies. While it’s unlikely to cause much of a constitutional issue here in the United States thanks to the courts’ very liberal interpretations of the Third Party Doctrine, the clearinghouse may be violating other countries’ laws by collecting, storing, and re-selling this information.

We’ve never heard of the “Travel Intelligence Portal” through which ARC offers access to ticket records before now. TIP isn’t mentioned anywhere on ARC’s website, in ARC’s privacy policy, or in the privacy policy of any airline or travel agency we’ve reviewed.  Travelers and ticket purchasers who don’t know that ARC exists aren’t likely to ask what it has done with their data. We don’t know whether TIP is a service offered by ARC exclusively to Federal agencies, or if it has other government or commercial users in the US and/or abroad.

The previously unnoticed ARC contracts with ICE and other US government agencies also raise substantial doubt as to whether travel agencies or airlines — including foreign airlines that process payments for their ticket sales in the US through ARC, and travel agencies that act as their agents in the US — are complying with foreign laws including PIPEDA in Canada and the GDPR in Europe.

Hiding this program from passengers makes it clear ARC doesn’t feel it would be well-received by those affected by it. Letting it run in the background while cluttering its front page with articles and press releases that suggest ARC is just dealing in aggregate data (i.e., total number of travelers and ticket prices per quarter, etc.) is, at best, deliberately misleading.

Like any other company with access to a ton of third party data, ARC has found plenty of willing buyers in government agencies. These agencies are similarly uninterested in informing the public about the sources they buy from and what data they’re obtaining with the public’s tax dollars. While this collection probably isn’t much help in finding travelers with cash in their pockets, it’s yet another way the government is collecting more information than it truly needs just because it can.

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Remember “Liberation Day”? The day when Trump launched those apparently freedom-loving taxes on all Americans by declaring war on global commerce so hard that we were even planning on taxing penguins on uninhabited islands? Well, some of you might recall that the Constitution distributes power, and doesn’t give it all to the President. And Trump’s tariffs are supposedly based on “emergency” powers. The president can impose certain regulations on foreign countries during emergencies, Congress said — you know, like if Canada nukes us or something. Trump looked at this law and thought: “Perfect! Americans buying stuff from other countries is clearly an emergency.”

His theory (to the extent it can be called a “theory”) goes something like this: trade deficits are an “unusual and extraordinary threat” to America, so the president can declare a perpetual national emergency about… international commerce existing. Every purchase of a Toyota is basically another Pearl Harbor.

Anyway, two courts looked at this theory this week and had some thoughts.

First up: the US Court of International Trade, which is exactly what it sounds like — the court that deals with trade stuff. They took one look at Trump’s tariffs and said, essentially, “The Constitution gives Congress the power to impose tariffs, not the president. This isn’t complicated.”

Now, Congress did pass a law saying the president can “regulate a variety of economic transactions” during emergencies. But here’s the thing: The court noted that declaring every trading relationship with every country to be an emergency is… not really how emergencies work.

The court’s reasoning was pretty straightforward:

IEEPA does not authorize any of the Worldwide, Retaliatory, or Trafficking Tariff Orders. The Worldwide and Retaliatory Tariff Orders exceed any authority granted to the President by IEEPA to regulate importation by means of tariffs. The Trafficking Tariffs fail because they do not deal with the threats set forth in those orders.

Translation: You can’t just declare everything an emergency and use emergency powers forever.

But wait! There’s more. Yesterday, a regular federal court in DC also blocked the tariffs. Judge Rudolph Contreras was equally unimpressed with Trump’s legal theory:

This case is not about tariffs qua tariffs. It is about whether IEEPA enables the President to unilaterally impose, revoke, pause, reinstate, and adjust tariffs to reorder the global economy. The Court agrees with Plaintiffs that it does not

The judge made some pretty devastating points about why Trump’s theory falls apart. First, there’s the basic constitutional problem:

The Court agrees with Plaintiffs that the power to regulate is not the power to tax… The Constitution recognizes and perpetuates this distinction. Clause 1 of Article I, Section 8 provides Congress with the “Power To lay and collect Taxes, Duties, Imposts and Excises.” Clause 3 of Article I, Section 8 empowers Congress “To regulate Commerce with foreign Nations.”

In other words, the Constitution specifically separates the power to tax from the power to regulate trade and gives both to Congress. If Trump could just call tariffs “regulation,” then that whole separation becomes meaningless.

Congress has also been careful when delegating tariff authority to presidents. Every other law giving the president tariff powers comes with “express procedural, substantive, and temporal limits.” But Trump’s reading of the emergency law would “eviscerate” all those careful limits:

Those comprehensive statutory limitations would be eviscerated if the President could invoke a virtually unrestricted tariffing power under IEEPA…. The Court will not assume that, in enacting IEEPA, Congress repealed by implication every extant limitation on the President’s tariffing authority….

Even worse, if the court were willing to accept Trump’s interpretation of the IEEPA, then that would make the IEEPA unconstitutional. Oops!

Defendants’ interpretation could render IEEPA unconstitutional. IEEPA provides that the President may “regulate . . . importation or exportation.” … The Constitution prohibits export taxes. See U.S. Const. art. I, § 9, cl. 5 (“No Tax or Duty shall be laid on Articles exported from any State.”). If the term “regulate” were construed to encompass the power to impose tariffs, it would necessarily empower the President to tariff exports, too. The Court cannot interpret a statute as unconstitutional when any other reasonable construction is available.

Finally, the court notes that in the fifty years since this emergency law was passed, literally no president has ever used it to impose tariffs. That’s… probably relevant.

And, of course, the markets loved this news. Global stock futures jumped when the courts blocked the tariffs, which tells you everything you need to know about how seriously financial markets take Trump’s trade policies.

The White House press secretary, Karoline Leavitt, responded by claiming that courts have no authority to review presidential tariffs at all, which is… an interesting constitutional theory. If you squint, it almost sounds like she’s arguing that federal judges have absolutely no role overseeing executive uses of power, which might come as news to the Supreme Court. Or anyone who is familiar with how the three branches of government work.

Leavitt: The courts should have no role here. There is a troubling & dangerous trend of unelected judges inserting themselves into the presidential decision making process. America cannot function if President Trump has his sensitive diplomatic or trade negotiations railroaded by activist judges.

— Aaron Rupar (@atrupar.com) 2025-05-29T17:23:41.527Z

Leavitt spews this constitutional nonsense with such conviction that you’d almost think she believes it. But despite her protests about “unelected… activist judges” (some of whom were appointed by Trump himself), it remains a simple fact: Donald Trump is no king, and multiple courts keep ruling to that effect.

Meanwhile, late Thursday, Trump himself blew up at the CIT judges and used it to take a surprising swipe at the Federalist Society and Leonard Leo:

If you can’t see that screenshot, here is the jumbo-sized word salad for you:

The U.S. Court of International Trade incredibly ruled against the United States of America on desperately needed Tariffs but, fortunately, the full 11 Judge Panel on the U.S. Court of Appeals for the Federal Circuit Court has just stayed the order by the Manhattan-based Court of International Trade. Where do these initial three Judges come from? How is it possible for them to have potentially done such damage to the United States of America? Is it purely a hatred of “TRUMP?” What other reason could it be?

I was new to Washington, and it was suggested that I use The Federalist Society as a recommending source on Judges. I did so, openly and freely, but then realized that they were under the thumb of a real “sleazebag” named Leonard Leo, a bad person who, in his own way, probably hates America, and obviously has his own separate ambitions. He openly brags how he controls Judges, and even Justices of the United States Supreme Court — I hope that is not so, and don’t believe it is! In any event, Leo left The Federalist Society to do his own “thing.” I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations. This is something that cannot be forgotten!

With all of that being said, I am very proud of many of our picks, but very disappointed in others. They always must do what’s right for the Country! In this case, it is only because of my successful use of Tariffs that many Trillions of Dollars have already begun pouring into the U.S.A. from other Countries, money that, without these Tariffs, we would not be able to get. It is the difference between having a rich, prosperous, and successful United States of America, and quite the opposite.

The ruling by the U.S. Court of International Trade is so wrong, and so political! Hopefully, the Supreme Court will reverse this horrible, Country threatening decision, QUICKLY and DECISIVELY. Backroom “hustlers” must not be allowed to destroy our Nation!

The horrific decision stated that I would have to get the approval of Congress for these Tariffs. In other words, hundreds of politicians would sit around D.C. for weeks, and even months, trying to come to a conclusion as to what to charge other Countries that are treating us unfairly. If allowed to stand, this would completely destroy Presidential Power — The Presidency would never be the same!

This decision is being hailed all over the World by every Country, other than the United States of America. Radical Left Judges, together with some very bad people, are destroying America. Under this decision, Trillions of Dollars would be lost by our Country, money that will, MAKE AMERICA GREAT AGAIN. It would be the harshest financial ruling ever leveled on us as a Sovereign Nation. The President of the United States must be allowed to protect America against those that are doing it Economic and Financial harm. Thank you for your attention to this matter!

Since I don’t hate you quite as much as Trump does, I broke up his nonsensical spew into paragraphs to make it marginally more readable.

But there are a few notable points in here: first, Trump believes that any judge that rules against him is somehow bad and hates America. And if they were appointed by him, he’ll now blame Leonard Leo and the Federalist Society. That’s pretty incredible, since the rise of Trump was very, very much enabled by Leo and the Federalist Society, and their efforts to pack the courts with partisan ideological lackeys who would push Christian nationalism and GOP politics forward.

It’s no surprise but is yet another data point confirming Trump’s view that anyone telling him he broke the law must be anti-American. It’s a dangerous authoritarian stance, but not a new one.

Second, Trump, who positions himself as the world’s greatest dealmaker, effectively admits that he can’t get a Republican Congress to actually approve these tariffs.

Third, Trump is the fucking President. Pretending he’s some poor little victim of the Federalist Society ramming through judges he doesn’t like is so stupid. Trump is basically admitting he was played like a fiddle by Leo, which just demonstrates how weak and unqualified he is as President.

Unfortunately, as Trump noted, the Court of Appeals for the Federal Circuit already put the first ruling on hold while they figure out how to handle it and related cases. But, honestly? The legal reasoning in both rulings is quite solid. Trump’s emergency powers don’t extend to “I don’t like trade deficits” any more than they extend to “I don’t like Mondays.” He may never realize that, but the rest of us must retain that basic reality.

This seems likely to reach the Supreme Court fairly quickly, at which point it’s anyone’s guess how those “unelected activist judges” will rule. But for now, we have two federal courts saying the same thing: the Constitution still applies, even to Trump’s economic theories. It may make Trump sad, but it certainly doesn’t make him right.

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Hey, if we have to be fair (and we don’t), we can trace some of this intranational movement to policies that predate the current shitshow we’re somehow expected to believe is the host to the Leader of the Free World.

A patchwork of marijuana legalization laws has led directly to law enforcement camping out on the borders of weed-friendly states, hoping to bust (but hoping even more to steal money from) people entering those states for the sole purpose of enjoying a substance that’s currently illegal in their own state.

After the Supreme Court decided Roe v. Wade was no longer good law, a new form of awfulness began. Law enforcement and local prosecutors starting arresting and bringing criminal charges against people who traveled to states where abortion was legal, rather than subject themselves to local laws outlawing their bodily autonomy.

It keeps getting worse. Florida has enacted new immigration laws that are even more draconian than Trump’s all-out war on anyone who looks less than full-on Caucasian. Those laws may have been blocked by courts, but that’s not stopping Florida from treating migrants entering the state like migrants illegally crossing US borders.

Florida, Texas, Idaho, New Hampshire: these are the main players in a recent article by The Guardian that details the experiences of people who find themselves refugees from their own former US states.

We’ll start with the story of a teacher who abandoned New Hampshire for Vermont because of the state’s efforts to erase critical race theory and other things that might inform students that white doesn’t always mean right.

John Dube, a high school teacher with 35 years of teaching under his belt, went up against local lawmakers’ attempts to ban CRT theory from being discussed in public schools. This put him in the crosshairs of far right activists, who engaged in a campaign of harassment so worrisome federal and local law enforcement stopped by to warn the teacher of what they had observed online..

The backlash was instant. Granite Grok, a local rightwing website, posted the names of all New Hampshire signatories, and within hours of that Dube received a Facebook message that read: “Whats up homo? I heard your teaching Marxist commie CRT in your classrooms. You can fuck right off you garbage human.”

Dube calmly replied that he would not be intimidated.

Within days, police officers turned up at his house, having been dispatched by the FBI. Dube’s name was circulating on obscure chatrooms frequented by violent militia members. He was urged to install security cameras at home, but when he asked why the police didn’t arrest the perpetrators of the threats, he was told that was impossible on free speech grounds.

So much for the “Live Free or Die” state. It’s now just the “Fuck Off and Die” state, heavily populated by people who believe your rights (and possibly, your life) end where their beliefs begin.

Dube has since relocated to Vermont to teach. He’s not the only one fleeing persecution and/or prosecution in his former home state due to legislation passed by Trump sycophant’s or the disturbing actions of those who support Trump and his rampant destruction of constitutional rights.

The Guardian article also tells the story of two women who left Idaho because of its draconian abortion ban. It’s not just women affected by the ban, though. The article points out two-thirds of Idaho’s fetal medicine specialists have left the state because continuing to provide the care they have for years puts them in danger of being prosecuted under the state’s abortion law.

And another person left Texas to protect their trans teen from harassment and prosecution enabled by the state’s many attacks on trans rights and LGBTQ+ speech. And it isn’t just the simple matter of relocating a family. “Sandra” (the pseudonym used by The Guardian to protect this parent from prosecution or harassment) also had to shut their business and somehow hope it can continue to provide income for their family when (or if) they manage to re-open it.

There are more anecdotes in the Guardian article, ranging from people leaving California to escape wild fires President Trump refuses to provide aid to fight or protect against to pulling up stakes to avoid being subjected to censorship efforts that target not only what content students have access to in libraries to what they’re able to learn about while in class.

If you choose to believe this is nothing more than a few people over-reacting to local policies, you are, of course, free to continue entertaining this delusion. But this is something we simply don’t expect to be happening in the United States. Sure, some people may move to find better schools or better jobs, but they rarely pull up stakes because they feel they’re local government poses a tangible, ongoing threat to their beliefs, rights, and ongoing existence.

And don’t even pretend there aren’t a lot of legislators and state leaders secretly wishing they could just throw up Berlin Walls on their borders to prevent people who disagree with their politics from seeking somewhere else to live. This is all about control of everyone, not just those who simply adore the cool touch of a boot heel to their neck. They want the people who reject their impositions to suffer the most.

Florida has already tried to create a virtual border within the United States with its law that creates new criminal charges for any undocumented immigrant entering Florida from another state. Drug warriors have long pretended the US isn’t contiguous when it comes to selective enforcement of drug laws. And as long as cops and prosecutors are trying to hunt down scofflaws who leave the state to partake of legal goods and services offered in other states, there will always be a latent desire to set up “papers, please” checkpoints on state borders. The only difference now is there are people in power who are willing to explore that option.

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So you might recall that Republicans recently have been making a gigantic stink about how the $42.5 billion in broadband grants included in the infrastructure bill hadn’t actually connected anybody yet. I pointed out in detail why things have been admittedly slow; a big reason being that we had to completely remap broadband access after decades of corruption and incompetence.

After whining endlessly about the slow cadence of this particular broadband grant program (the Broadband Equity, Deployment, and Access program, or BEAD), Republicans, earlier this year, began making changes to it that largely helped giant telecoms and Elon Musk.

They’re eliminating requirements that resulting broadband be affordable for poor people. They’re eliminating already fairly decorative labor and climate build requirements. And most importantly, they’re rewriting the language so less money goes to local, high-capacity fiber ISPs, and more money goes to Elon Musk’s congested, expensive, Ozone-layer-depleting Starlink satellite broadband service.

The changes are, ironically enough, likely to cause some major additional delays in people actually getting broadband as states are forced to retool their compliance strategies after years of planning. One organization, the Benton Institute for Broadband and Society, estimates that the changes could result in up to a two year additional delay in people getting broadband:

“Mandated changes—if they come from either Congress or the U.S. Department of Commerce—could force states to rerun their entire BEAD sub-grantee selection processes. The resulting delays will cost ISPs across the country hundreds of millions of dollars in time and resources to plan for the new program guidelines and reapply for awards.”

Again, very ironic that Republicans would spend much of the last year complaining about delays in this program, only to introduce massive new delays. And not delays that are actually beneficial to the public, but delays that mostly help their buddies at AT&T/Comcast/Verizon and Elon Musk.

Apparently under the belief he was helping matters, Ezra Klein recently jumped into the broadband debate to make the unoriginal observation that government should make big promises and deliver on them. But his analysis of broadband was simplistically puerile; most of it seemed based on Republican angst, and ignored the real progress made on affordable fiber via ARPA and other initiatives.

Klein also ignored that a major reason BEAD moved slowly was due to corruption and telecom lobbyists trying to weaken and change the bill to their direct benefit (softening speed definitions, weakening map coverage, preventing competitors from getting grants). Corruption is something Klein’s new book tends to downplay as a primary issue of concern, despite its starring role in U.S. dysfunction.

BEAD was never going to win any awards for government efficiency. The bill was passed in 2021, yet states were only just starting to finalize deployment plans. But again there were some good reasons for this; creating a vast coalition of federal and local governments tasked with completely remapping broadband access, then vetting applicants to ensure they could deliver — takes a little time.

The great irony is that most of these delays were the direct result of government not wanting to repeat mistakes in past broadband government subsidy programs. Such as the FCC’s Rural Deployment Opportunity Fund, which was a giant boondoggle under the first Trump administration because the government didn’t do its homework on broadband mapping, or grant applicant credibility.

BEAD’s slower cadence was a direct result of fighting corruption and trying (with mixed results) to do things the right way. It was on the cusp of delivering real-world affordable fiber when Republicans showed up to fix things. By, again, making the resulting, reconstituted program take longer and deliver less. Ingenious. We are truly living in the golden age of populist abundance.

Republican (and Ezra Klein’s) angst over the slow speed of the BEAD broadband grant managed to get the press all hot and bothered for months. I’d wager that this angst curiously won’t be repeated now that pointless new delays were introduced by Republicans to the direct benefit of Elon Musk.

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We recently talked about Donald Trump’s foray into medicine when he declared, sans any actual evidence of course, that autism cannot possibly be caused by anything other than some external source. It was an admittedly odd stance to take for someone who seems to care so deeply about genetics in other areas, but Donald Trump being an inconsistent mess is not remotely newsworthy. The comments were made during a Department of Health and Human Services (HHS) event that unveiled RFK Jr.’s “Make America Healthy Again” MAHA report on American health. That report, which RFK Jr. touted as a result of “gold standard” science, identified four major causes of deficiencies in health in America.

The MAHA Commission event unveiled the group’s new report, which pointed to four key factors it says are hurting U.S. children: ultraprocessed foods, environmental chemicals, digital behavior and “overmedicalization.” The report identifies pesticides and other chemicals as potentially having harmful health impacts, but it stops short of recommending actions to limit them.

And, hey, I can get on board with some of that. Though I’ve made a habit of righteously slapping around Kennedy and his HHS Department as of late, not every idea the man has is completely stupid. Do ultra-processed foods probably suck for our health? I can imagine that being the case. Chemicals in our environment and/or food? Sure, that sounds like something worth studying. Digital behavior issues and the vague reference to “overmedicalization” have my spidey-sense tingling, I will admit, but neither strike me as particularly unworthy of attention at first glance.

But the problem is that when you tout your report as “gold standard” medicine and then I later learn that this report’s citations read like an AI hallucination, well, now I have to question everything once more.

Health Secretary Robert F. Kennedy Jr. says his “Make America Healthy Again” Commission report harnesses “gold-standard” science, citing more than 500 studies and other sources to back up its claims. Those citations, though, are rife with errors, from broken links to misstated conclusions.

Seven of the cited sources don’t appear to exist at all.

The post over at NOTUS goes into details. The broken links are probably just a result of human error, I suppose. The misinterpretations of other studies could be the result of, well, flat incompetence. But the studies and citations within specific papers and journals that don’t appear to exist? Someone is either flat out lying in this report, or else it was constructed with the help of AI. It’s not like we haven’t seen that sort of thing in the academic and legal realms before.

Katherine Keyes is one author of a supposed study the MAHA report referenced.

Epidemiologist Katherine Keyes is listed in the MAHA report as the first author of a study on anxiety in adolescents. When NOTUS reached out to her this week, she was surprised to hear of the citation. She does study mental health and substance use, she said. But she didn’t write the paper listed.

“The paper cited is not a real paper that I or my colleagues were involved with,” Keyes told NOTUS via email. “We’ve certainly done research on this topic, but did not publish a paper in JAMA Pediatrics on this topic with that co-author group, or with that title.”

It’s not clear that anyone wrote the study cited in the MAHA report. The citation refers to a study titled, “Changes in mental health and substance abuse among US adolescents during the COVID-19 pandemic,” along with a nonfunctional link to the study’s digital object identifier. While the citation claims that the study appeared in the 12th issue of the 176th edition of the journal JAMA Pediatrics, that issue didn’t include a study with that title.

Again, I cannot say for sure that AI was used in this report, but it has all the hallmarks of your typical AI hallucination, where it attempts to build a plausible response to a prompt based on whatever datapoints it can find on the internet. For instance, Keyes does study topics such as in the fictional citation. And Keyes has in fact published work within JAMA Pediatrics. But the specifics here appear to be completely fabricated.

She’s not alone.

A section describing the “corporate capture of media” highlights two studies that it says are “broadly illustrative” of how a rise in direct-to-consumer drug advertisements has led to more prescriptions being written for ADHD medications and antidepressants for kids.

Those articles don’t appear in the table of contents for the journals listed in their citations. A spokesperson for Virginia Commonwealth University, where psychiatric researcher Robert L. Findling currently teaches, confirmed to NOTUS that he never authored such an article. The author of the first study doesn’t appear to be a real ADHD researcher at all — at least, not one with a Google Scholar profile.

In another section titled, “American Children are on Too Much Medicine – A Recent and Emerging Crisis,” the report claims that 25% to 40% of mild cases of asthma are overprescribed. But searching Google for the exact title of the paper it cites to back up that figure — “Overprescribing of oral corticosteroids for children with asthma” — leads to only one result: the MAHA report.

There is more, with cited authors confirming to NOTUS that they never authored the studies or articles in other citations. In other cases, the report simply takes small, targeted studies and broadens them to become nationwide evidence of the very theories Kennedy has been pushing for years and years.

Can we confirm for sure that someone, or multiple someones, used generative AI to produce this report? No, we can’t, but I say that with as much of a literary wink as I can muster through the written word.

But even if that ends up not being the case, a report full of fictionalized and misinterpreted scientific studies is many things, but it sure as shit is not “gold standard science.”

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Ctrl-Alt-Speech is a weekly podcast about the latest news in online speech, from Mike Masnick and Everything in Moderation‘s Ben Whitelaw.

Subscribe now on Apple Podcasts, Overcast, Spotify, Pocket Casts, YouTube, or your podcast app of choice — or go straight to the RSS feed.

In this week’s roundup of the latest news in online speech, content moderation and internet regulation, Mike is joined by guest host Zeve Sanderson, the founding Executive Director of the NYU Center for Social Media & Politics. Together, they cover:

If algorithms radicalize a mass shooter, are companies to blame? (The Verge)Large Language Models Are More Persuasive Than Incentivized Human Persuaders (Arxiv)A dangerous plan to ‘win’ the AI race is circulating (Washington Post)Texas governor signs law to enforce age verification on Apple, Google app stores (Reuters)AB 853: California AI Transparency Act.(CalMatters)Regulators Are Investigating Whether Media Matters Colluded With Advertisers (NY Times)Anthropic’s new AI model turns to blackmail when engineers try to take it offline (TechCrunch)Why Anthropic’s New AI Model Sometimes Tries to ‘Snitch’ (Wired)

This episode is brought to you with financial support from the Future of Online Trust & Safety Fund, and by our sponsor Modulate. In our Bonus Chat, we speak with Modulate CTO Carter Huffman about how their voice technology can actually detect fraud.

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What the fuck is going on at the Pentagon? We’ve talked about Defense Secretary Pete Hegseth’s apparent penchant for exposing attack plans over unsecure, easily hacked messaging apps. But there was also a bit of a scandal in April, when three of his top aides were fired as part of a “leak” investigation.

And now, the Guardian broke a story claiming that Hegseth’s lawyer told other Trump admin officials they uncovered those aides were leaking… by using illegal warrantless NSA surveillance techniques. Then, as even Trump admin officials started freaking out about potential constitutional violations, they were told — whoops! — none of it was true.

The White House has lost confidence in a Pentagon leak investigation that Pete Hegseth used to justify firing three top aides last month, after advisers were told that the aides had supposedly been outed by an illegal warrantless National Security Agency (NSA) wiretap.

The extraordinary explanation alarmed the advisers, who also raised it with people close to JD Vance, because such a wiretap would almost certainly be unconstitutional and an even bigger scandal than a number of leaks.

But the advisers found the claim to be untrue and complained that they were being fed dubious information by Hegseth’s personal lawyer, Tim Parlatore, who had been tasked with overseeing the investigation.

So we’re left with two equally damning possibilities: either the Pentagon actually conducted warrantless surveillance on American government officials (a massive Fourth Amendment violation that would make the FBI’s FISA abuses look quaint), or Hegseth’s personal lawyer fabricated claims about illegal surveillance to justify firing people.

The fact that we can’t tell which nightmare scenario is real pretty much captures everything wrong with this administration’s approach to national security.

And, I guess, the most unbelievable bit of all of this is that anyone in the Trump administration actually would be concerned about constitutional violations in an administration that seems to rack up such violations by the dozen.

Apparently, things got so dumb that Hegseth’s lawyer denied telling admin folks something they claimed he had, in fact, told them:

The advisers were stunned again when Parlatore denied having told anyone about an illegal NSA wiretap himself and maintained that any information he had was passed on to him by others at the Pentagon.

This is where the story gets particularly absurd. Either Parlatore is lying about what he told people, or multiple Trump administration officials are collectively hallucinating the same conversation about illegal surveillance. Neither explanation inspires confidence in the people running our defense apparatus.

The end result:

a breakdown in trust between the Pentagon and the White House, where the Trump advisers tracking the investigation have privately suggested they no longer have any idea about who or what to believe*.*

Yeah, join the club.

But here’s what should worry everyone: this isn’t just garden-variety incompetence. If the Pentagon is actually having the NSA conduct warrantless surveillance on government officials, that’s yet another constitutional crisis to add to the pile. If they’re just claiming they did to cover for arbitrary firings, then that’s authoritarian theater designed to chill dissent through fear of imaginary surveillance.

Both scenarios represent terrible abuses of power. The only question is whether the abuse is real or performative.

Either way, seems like a real tight run ship over there at the Defense Department. Who could possibly imagine that the guy whose entire managerial experience was effectively destroying two tiny non-profits was ill-prepared to manage the largest military in the world?

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That summation greatly oversimplifies things, but if all you’re going to read is a headline, it will have to do.

We’ll dig in deeper into the Fifth Circuit’s second attempt to handle content moderation vis-a-vis public libraries, but first, we’ll take a look back to what happened last year.

In middle of book ban bills hitting multiple state legislatures — several of which created new civil avenues for private citizens to demand book removals and/or sue public libraries/librarians directly for being offended by books they found on library shelves, the Fifth Circuit handled a challenge brought by the ACLU after a few local right wingers tried to get a bunch of books removed from a Llano County public library.

These were the books that were removed by the library, working from a list provided by allegedly aggrieved county resident Bonnie Wallace and seconded by state rep Matt Krause and his own list of “objectionable material,” which included several more titles referred to by Krause as “pornographic filth.”

Seven “butt and fart” books, with titles like I Broke My Butt! and Larry the Farting Leprechaun;

Four young adult books touching on sexuality and homosexuality, such as Gabi, a Girl in Pieces;

Being Jazz: My Life as a (Transgender) Teen and Freakboy, both centering on gender identity and dysphoria;

Caste and They Called Themselves the K.K.K., two books about the history of racism in the United States;

Well-known picture book, In the Night Kitchen by Maurice Sendak, which contains cartoon drawings of a naked child; and

It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health.

Pretty much everyone acting to get these books removed worked for some branch of the local government, ranging from two county judges, to the state rep, to the library board the local government handpicked to replace the less-than-obsequious board it disbanded after it refused to let Bonnie Wallace run the library.

While some of the Fifth Circuit judges recognized that declaring library content curation “government speech” meant prematurely terminating legitimate First Amendment challenges, the court ultimately decided libraries should be allowed to handle their own content moderation. After all, to do otherwise would mean being forced to carry racist tomes and bigoted creative works. If that meant citizens could cleanse libraries of content they personally don’t like, it was just acceptable collateral damage for refusing to protect the First Amendment right to access content, even if others think you shouldn’t have access to it.

Roughly a month later, the Fifth Circuit said it would take another look at this case, having apparently realized it had enabled censorship while claiming to be protecting librarians’ rights to curate content of the libraries they oversee.

It shouldn’t have bothered. Its first decision was a mess, but at least it held back from actively blessing proxy censorship of protected First Amendment expression by authors and content creators. This review goes further, giving the government free rein to censor content it doesn’t like under the guise of “curation.”

The latest ruling [PDF], which sets precedent for the entire Fifth Circuit and its grouping of overwhelmingly right wing states, says there’s simply no way to solve this problem in a way that makes everyone — including fans of civil liberties — happy. So, if anyone is going to suffer, it’s going to be the citizens, rather than the government.

[P]laintiffs cannot invoke a right to receive information to challenge a library’s removal of books. Yes, Supreme Court precedent sometimes protects one’s right to receive someone else’s speech. But plaintiffs would transform that precedent into a brave new right to receive information from the government in the form of taxpayer-funded library books. The First Amendment acknowledges no such right.

That is a relief, because trying to apply it would be a nightmare. How would judges decide when removing a book is forbidden? No one in this case—not plaintiffs, nor the district court, nor the panel—can agree on a standard. May a library remove a book because it dislikes its ideas? Because it finds the book vulgar? Sexist? Inaccurate? Outdated? Poorly written? Heaven knows. The panel majority itself disagreed over whether half of the 17 books could be removed. For their part, plaintiffs took the baffling view that libraries cannot even remove books that espouse racism.

There’s no room for nuance here, apparently. Either librarians can remove anything they want to or they can’t remove anything. But this isn’t a win for librarians. Librarians tend to actually care about expanding knowledge and minds. Library boards — those run by local governments — are more interested in pushing their own viewpoints at the expense of library patrons. But library boards get the win here because… well, who could possibly want the government to be forced to pay for books that espouse racism?

Only racists really want that. But they can’t actually get that, so they do the next best thing. They disband library boards and re-stock them with sympathizers and then set about removing books that detail the United States’ long history of racism (along with some harmless books containing fart jokes).

Not a problem, says the Fifth Circuit, even if it’s obviously a problem. But what the Fifth Circuit can’t logically (or lawfully) argue away, it chooses to belittle. This is some truly shameful writing from a court that can’t even attempt to hide its disdain for the plaintiffs challenging the quasi-book ban urged on by a state rep that definitely wants to engage in censorship on behalf of a single complainant who wants to remove any content she personally doesn’t like.

Finally, we note with amusement (and some dismay) the unusually over-caffeinated arguments made in this case. Judging from the rhetoric in the briefs, one would think Llano County had planned to stage a book burning in front of the library. Plaintiffs and amici warn of “book bans,” “pyres of burned books,” “totalitarian regimes,” and the “Index librorum prohibitorum.” One amicus intones: “Where they burn books, they will ultimately burn people.”

Take a deep breath, everyone. No one is banning (or burning) books. If a disappointed patron can’t find a book in the library, he can order it online, buy it from a bookstore, or borrow it from a friend. All Llano County has done here is what libraries have been doing for two centuries: decide which books they want in their collections. That is what it means to be a library—to make judgments about which books are worth reading and which are not, which ideas belong on the shelves and which do not.

If you doubt that, next time you visit the library ask the librarian to direct you to the Holocaust Denial Section.

Well, why have a library at all then? Maybe taxpayers would be better off just buying or borrowing (from friends) anything they want to read? Why burden, say, Bonnie Wallace, with the extremely minor tax burden of paying for the occasional book of fart jokes or a treatise on racism in America? In fact, why not just shut down newspapers, radio stations, and news broadcasters? If people want to know what’s happening, surely they can just ask their neighbors or call up relatives living elsewhere in the nation? Who needs public records requests? Surely, anyone interested in the inner workings of their government can just politely ask government employees to answer their questions in person?

This is an extremely specious response to a serious concern, one that has only become more serious in recent years as hundreds of legislators and an entire political party has decided to get into the censorship business.

Only the dissent contains anything worth taking to heart. Written by Judge Stephen Higginson, it calls out the majority’s bullshit take on the First Amendment and the right to information it contains:

Public libraries have long kept the people well informed by giving them access to works expressing a broad range of information and ideas. But this case concerns the politically motivated removal of books from the Llano County public library system by government officials in order to deny public access to disfavored ideas. In an effort to ratify this official abridgment of free speech, the majority overturns decades of settled First Amendment law, disparaging its free speech protections as a “nightmare” to apply.

There it is: not only does the majority decide to give the government an on-ramp for censorship via libraries, it wraps up its refusal to honestly wrestle with this difficult issue by belittling the people who raised it. Everyone in the Fifth Circuit is worse off for it. And this abysmal take on free speech is only going to encourage more of what happened in this case. It gives would-be censors all the permission they need to start ridding public libraries of content they don’t like and the quasi-legal cover for their definitively anti-American actions.

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Secretary of State Marco Rubio announced this week that he’s barring visas for foreign nationals who “censor Americans,” declaring that “free speech is among the most cherished rights we enjoy as Americans.”

This is yet another example of the most censorial administration falsely wrapping itself in the cloak of “free speech warriors” to defend censorship. Rubio has spent his tenure as Secretary of State conducting the most aggressive authoritarian censorship campaign in recent American history — literally having students kidnapped off the street for their speech and moved around the country to hide them from the courts. He’s declared foreign students “lunatics” for their opinions and yanked their visas without warning or due process.

So when Rubio positions himself as a free speech champion, it’s worth examining what he’s actually doing versus what he’s claiming to oppose.

The New Visa Policy: Extremely Selective “Anti-Censorship”

Wednesday’s announcement targets foreign officials who “censor” Americans:

Free speech is among the most cherished rights we enjoy as Americans. This right, legally enshrined in our constitution, has set us apart as a beacon of freedom around the world. Even as we take action to reject censorship at home, we see troubling instances of foreign governments and foreign officials picking up the slack. In some instances, foreign officials have taken flagrant censorship actions against U.S. tech companies and U.S. citizens and residents when they have no authority to do so.

Today, I am announcing a new visa restriction policy that will apply to foreign nationals who are responsible for censorship of protected expression in the United States. It is unacceptable for foreign officials to issue or threaten arrest warrants on U.S. citizens or U.S. residents for social media posts on American platforms while physically present on U.S. soil. It is similarly unacceptable for foreign officials to demand that American tech platforms adopt global content moderation policies or engage in censorship activity that reaches beyond their authority and into the United States. We will not tolerate encroachments upon American sovereignty, especially when such encroachments undermine the exercise of our fundamental right to free speech.

In isolation, protecting Americans’ speech rights might be worth considering. But this isn’t happening in isolation — it’s coming from the most censorial administration in recent memory.

The real tell is what constitutes “censorship” in Rubio’s framework. The policy specifically targets demands that “American tech platforms adopt global content moderation policies.” Translation: this is about protecting platforms like ExTwitter from having to follow rules in places like the EU or Brazil that Elon Musk doesn’t like. Meanwhile, Rubio’s own government is literally disappearing people for their speech.

The Selective Enforcement Game

Expect this policy to be applied with surgical precision against countries whose content policies displease the administration — likely targeting EU officials, Brazilian judges, and Australian regulators who’ve pressured social media companies. And, yes, those all have done things we consider problematic, but banning them from the US entirely seems ridiculous and an attack on foreign sovereignty. We may disagree with their policies, but this is the US meddling in those policies elsewhere.

Meanwhile, will the visa ban apply to Recep Erdogan of Turkey? Narendra Modi of India? Vladimir Putin? All regularly engage in actual social media censorship, but somehow I doubt they’ll face visa restrictions.

The tell here is that Rubio chose to announce this through an “exclusive” article from Michael Shellenberger, one of the leading voices in the “censorship industrial complex” mythology — who is now employed as a “professor” at a “university” that espouses “academic freedom” but fires people who post on social media in a way that challenges a funder’s ideology. Shellenberger has spent years misrepresenting basic content moderation concepts while claiming private companies enforcing their own rules constitutes government censorship. Now, faced with an administration literally kidnapping people for speech, he’s writing puff pieces celebrating their “anti-censorship” efforts.

To show just how upside-down this has become, in this article (which I’m not linking to, because fuck that) celebrating Rubio’s announcement as pro-free speech, Shellenberger closed by also celebrating Trump’s decision to revoke the security clearance of Chris Krebs. According to Shellenberger’s fantasy, Krebs was fired for “demanding” social media company’s censor content — a thing that never happened. Krebs was the CISA director who accurately pointed out that the 2020 election was secure — and was fired for that speech, and is now being further retaliated against for that speech. Stripping security clearance from someone for contradicting your preferred narrative is textbook retaliation for speech, the exact kind of government censorship Shellenberger supposedly opposes.

The Same-Day Contradiction

As if to underscore the hypocrisy, on the very same day Rubio announced his anti-censorship visa policy, he also announced he’s revoking visas for Chinese students:

Under President Trump’s leadership, the U.S. State Department will work with the Department of Homeland Security to aggressively revoke visas for Chinese students, including those with connections to the Chinese Communist Party or studying in critical fields. We will also revise visa criteria to enhance scrutiny of all future visa applications from the People’s Republic of China and Hong Kong.

Notice the language: “including those with connections” suggests that’s just a subset of all Chinese student visas being canceled. What constitutes “critical fields”? The administration won’t say, because the point is arbitrary power to punish anyone they want.

So on the same day Rubio claims to defend free speech, he’s revoking student visas based on nationality and academic interests. That’s not protecting speech — that’s targeting it.

The capstone came when Education Secretary Linda McMahon announced that universities should only receive federal funds if their research is “in sync with the administration.”

Linda McMahon: "Universities should continue to be able to do research as long as they're abiding by the laws and in sync, I think, with the administration and what the administration is trying to accomplish."

— Aaron Rupar (@atrupar.com) 2025-05-28T14:54:10.483Z

This is the opposite of everything conservatives claimed to stand for regarding academic freedom. It’s a direct assault on the First Amendment’s protection of intellectual inquiry.

The Real Pattern

The pattern here isn’t about protecting free speech — it’s about protecting the speech the administration likes while silencing the speech it doesn’t. When foreign students write op-eds critical of US policy, they get kidnapped. When foreign officials pressure US tech companies in ways that displease Musk, they get visa bans. When universities pursue research the administration dislikes, they lose funding.

But when Rubio wants to position himself as a free speech champion, he can count on useful idiots in the “free speech” movement to cheer him on, even as he’s conducting the most systematic attack on speech rights in recent American history.

If Rubio truly believed “free speech is among the most cherished rights we enjoy as Americans,” he’d stop being the biggest threat to that right in the US government.

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The critics are out there, saying things like “Techdirt is alarmist!” and “Trump stuff is normal!” and “Tim Cushing’s posts have too many typos!” Well, here’s some news for the haters: everything I said a month ago is actually true, except now it has the weight of the gold standard of identification dragging it down, down, down into the progressively deeper hellhole that is Trump’s second administration.

For years, the federal government has been threatening/warning that American citizens would no longer be free to move about the country unless they got a brand new ID card that carried the US government stamp of approval on it. State ID cards were simply no longer good enough, even though we were still a united set of states despite Texas’s constant promises to leave the rest of us alone.

Things have changed with Trump’s return to office. The long- and multiply-delayed “REAL ID” is now actually for real. And, even though the latest deadline for compliance has been extended yet again, officials are warning you’re not getting on that plane unless you carry the new, federally required piece of plastic.

And sure, pretty much everyone is still putting off the pain of acquiring the federally branded ID until the federal government actually makes it impossible to live life without one. But early adopters aren’t faring any better than those of us choosing the path of least resistance.

Remember what I said about Trump being just as willing to detain, deport, or jail US citizens? I wasn’t kidding. And it’s a conclusion anyone willing to think a half-second about the current mass deportation effort would have arrived at. What makes you a US citizen when you’re confronted by an ICE pack? Well, it’s certainly not the documents you carry. It’s whether or not ICE chooses to recognize those documents as proof of your citizenship.

Here’s how one US citizen was repaid for doing the government a solid by getting in on the REAL ID scam on the ground floor, as reported by Suzanne Gamboa for NBC News:

A U.S.-born citizen who was wrestled into the dirt, handcuffed and detained in a vehicle as part of an immigration raid had a REAL ID on him that was dismissed as fake, the man’s cousin said Friday.

Video of the arrest, aired by Noticias Telemundo, showed authorities grabbing Leonardo Garcia Venegas, 25, while at a job site in Foley, Alabama, on Wednesday and bending his arms behind him. Someone off-camera can be heard yelling, “He’s a citizen.”

Garcia told Noticias Telemundo that authorities took his ID from his wallet and told him it was fake before handcuffing him.

That’s it. That’s the whole game. Carry all the documents you want, but all it takes is federal agents claiming they don’t believe you to undercut the supposedly inherent power of the identification documents you carry. That’s the massive disconnect — one that also applies to regular law enforcement — between our assumptions of how law and order works, and how law enforcement officers actually work.

The good news is only “good” in comparison to the much worse news Trump’s deportation efforts are generating daily. Garcia was eventually released by immigration officers once he provided them with his Social Security number, but that was after he was assaulted, pinned to the ground, handcuffed, and placed in a law enforcement vehicle.

And, of course, the government is going to get away with this because it almost always has and the nation’s top court has insisted via precedential rulings it almost always will.

She said they have been trying to find a lawyer but local ones have told them that it is nearly impossible to sue a federal agent.

This is true. And while it’s tough to hear, at least these local lawyers didn’t make things worse by offering false hope or offering to take up a case they couldn’t possibly win.

Now that another US citizen has been arrested — however briefly — by federal agents who’ve been instructed to see red when they see brown, the DHS has stepped up to claim (without facts in evidence) that this arrest wasn’t about Garcia looking kinda foreign and everything to do with him reacting to being treated like an illegal immigrant even though he’s a full-blown REAL ID card-carrying US citizen:

“He physically got in between agents and the subject they were attempting to arrest and refused to comply with numerous verbal commands,” said Tricia McLaughlin, DHS assistant secretary. “Anyone who actively obstructs law enforcement in the performance of their sworn duties, including U.S. citizens, will of course face consequences which include arrest.”

Pics or it didn’t happen. Just kidding. Federal officers are no longer wearing body cameras thanks to Trump and for damn sure they’re not even wearing agency identification, thanks to their desire to avoid any accountability whatsoever. This is all about race. It has nothing to do with hunting down violent criminals or repeat offenders and just grabbing anyone who doesn’t look white enough to “belong” in a nation run by a bunch of bigots.

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U.S. wireless providers are, it should go without saying, very shitty when it comes to consumer privacy and security. After decades of mindless deregulation and competition-killing consolidation, there’s less serious regulatory oversight or competitive pressure than ever for these companies to try harder.

As a result, companies like T-Mobile have been hacked five times in an eight year span. Telecoms and app makers routinely over-collect sensitive behavior and location data, then sell access to any random idiot with a few nickels to rub together. And, more recently, wireless providers experienced the worst hack in U.S. telecom history after Chinese hackers exploited lax security and weak U.S. regulatory oversight to spy on high-profile targets.

Driving that point home, Senator Ron Wyden recently compiled a new report detailing how U.S. wireless providers, unlike many tech companies, routinely fail to notify their customers about government surveillance, even when that surveillance breaks the law.

In a press announcement and accompanying letter to his Senate colleagues, Wyden points out that almost all of the major wireless phone providers failed to alert even senators when their personal communications were spied on during a DOJ inquiry during the first Trump administration:

“Wyden learned that the largest phone companies — Verizon, AT&T, and T-Mobile — failed to establish systems to notify senators about government surveillance requests in violation of their contracts with the Senate. He urged senators and staff to consider switching mobile carriers for their campaign and personal phones to carriers that will notify them about government surveillance demands.”

A convenient, accompanying infographic by Wyden’s office makes it clear most carriers suck:

Of the three wireless providers that do inform customers about government surveillance, two are small fringe players (Cape launched last year with a promise to have a focus on privacy), and the third (Google Fi) heavily leans on existing, larger wireless networks. So even this infographic is a bit generous in terms of your actual choices.

Again, this is a direct result of stuff like mindless merger approval by government (see: Sprint T-Mobile), which has generally resulted in a decrease of any effort to try on compete on price, privacy, or anything else. It’s also a direct result of the steady obliteration of consumer protection standards at the hands of revolving door regulators and an increasingly corrupt Congress.

And it’s getting worse. Trump-stocked courts are making it harder than ever to fine wireless carriers for even the most egregious of privacy violations (see the recent 5th Circuit decision vacating fines for AT&T for spying on user location data). The Trump administration is also taking a hatchet to agencies like the FCC, making it harder than ever to hold wireless carriers to account.

With neither competent federal oversight nor real wireless market competition, nothing improves and the door opens wider to scandals that will make past controversies seem quaint. We’ve been talking about these issues for decades and we continue to head in the complete opposite direction of even the most basic of accountability for these notoriously unethical, nosy companies.

We are a comically corrupt, incompetent country seemingly incapable of the most basic efforts to protect the public from government or corporate power run amok.

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As HHS and RFK Jr. continue to bumble their way towards making America less healthy, while saying they’re doing the opposite of course, measles cases are still on the rise. The rate of new cases appears to be slowing somewhat, assuming we think the data coming out of the CDC these days is accurate. Given the staff and budget cuts HHS has implemented, I think that is very much an open question.

In the meantime, Kennedy also committed about a month ago to “knowing the cause of autism” by September of this year. The claim would be absurd coming from anyone, given the research and science indicating that there are a number of factors likely at play rather than a single “cause,” but from noted anti-vaccine advocate Kennedy the claim takes on a more sinister tone. Kennedy has already walked back the ETA for his eureka on autism moment, but it seems overwhelmingly obvious where this is going.

Making matters worse, because the fish rots from the head down, Donald Trump recently remarked that the cause of autism must be from an external source. He, to the shock of exactly nobody, provided zero reasoning or evidence for this claim.

President Trumpsaid Thursday that autism must not occur naturally, citing figures inflating the spike in autism and suggesting the administration’s Make America Healthy Again (MAHA) Commission could provide answers.

“When you hear 10,000, it was 1 in 10,000, and now it’s 1 in 31 for autism, I think that’s just a terrible thing. It has to be something on the outside, has to be artificially induced, has to be,” Trump said at a MAHA Commission event. “And we will not allow our public health system to be captured by the very industries it’s supposed to oversee. So we’re demanding the answers, the public is demanding the answers and that’s why we’re here.”

Because this is Donald Trump, even his cited numbers are wrong. Autism spectrum diagnoses 25 years ago were in the 1 in 150 children range. Today they are 1 in 36. That is still a sizable jump and if you can’t be bothered to have a nuanced thought about it, it might freak you out. But medicine on new diseases changes, as does how we classify certain conditions. A ton of awareness and outreach has been done both with doctors and among the public when it comes to autism. With that education comes more diagnosed incidents as doctors and the public begin to recognize the symptoms for what they are.

But most medical professionals seem to agree that genetics and family history play a role in autism prevalence that ranges somewhere between being very important to being the primary cause. That would be directly contradictory to Trump’s claim that the disorder must be externally caused.

The main question now appears to be whether Kennedy is influencing Trump’s views on autism, or the other way around.

Ahead of Kennedy’s confirmation vote in the Senate, Trump also shared figures questioning the autism rate.

“20 years ago, Autism in children was 1 in 10,000. NOW IT’S 1 in 34. WOW! Something’s really wrong. We need BOBBY!!! Thank You! DJT,” Trump wrote on Truth Social at the time.

This isn’t some conversation happening in a vacuum. Policy decisions will be made based Trump’s and Kennedy’s misguided views on autism spectrum disorder. Neither of these men are doctors. One of them insisted that the American people shouldn’t take medical advice from him, despite his holding the highest office in the land when it comes to American health and healthcare.

Already HHS is paring back authorization for some vaccines, such as the COVID vaccine. Kennedy is implementing secretive changes to how vaccines get approved in the future as well.

All of this happening on Donald Trump’s watch and the damage that is likely to be done will take decades to unwind.

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When your local police department buys one piece of surveillance equipment, you can easily expect that the company that sold it will try to upsell them on additional tools and upgrades.

At the end of the day, public safety vendors are tech companies, and their representatives are salespeople using all the tricks from the marketing playbook. But these companies aren’t just after public money—they also want data.

And each new bit of data that police collect contributes to a pool of information to which the company can attach other services: storage, data processing, cross-referencing tools, inter-agency networking, and AI analysis. The companies may even want the data to train their own AI model. The landscape of the police tech industry is changing, and companies that once specialized in a single technology (such as hardware products like automated license plate readers (ALPRs) or gunshot detection sensors) have developed new capabilities or bought up other tech companies and law enforcement data brokers—all in service of becoming the corporate giant that serves as a one-stop shop for police surveillance needs.

One of the most alarming trends in policing is that companies are regularly pushing police to buy more than they need. Vendors regularly pressure police departments to lock in the price now for a whole bundle of features and tools in the name of “cost savings,” often claiming that the cost à la carte for any of these tools will be higher than the cost of a package, which they warn will also be priced more expensively in the future. Market analysts have touted the benefits of creating“moats” between these surveillance ecosystems and any possible competitors. By making it harder to switch service providers due to integrated features, these companies can lock their cop customers into multi-year subscriptions and long-term dependence.

Think your local police are just getting body-worn cameras (BWCs) to help with public trust or ALPRs to aid their hunt for stolen vehicles? Don’t assume that’s the end of it. If there’s already a relationship between a company and a department, that department is much more likely to get access to a free trial of whatever other device or software that company hopes the department will put on its shopping list.

These vendors also regularly help police departments apply for grants and waivers, and provide other assistance to find funding, so that as soon as there’s money available for a public safety initiative, those funds can make their way directly to their business.

Companies like Axon have been particularly successful at using their relationships and leveraging the ability to combine equipment into receiving “sole source” designations. Typically, government agencies must conduct a bidding process when buying a new product, be it toilet paper, computers, or vehicles. For a company to be designated a sole-source provider, it is supposed to provide a product that no other vendor can provide. If a company can get this designation, it can essentially eliminate any possible competition for particular government contracts. When Axon is under consideration as a vendor for equipment like BWCs, for which there are multiple possible other providers, it’s not uncommon to see a police department arguing for a sole-source procurement for Axon BWCs based on the company’s ability to directly connect their cameras to the Fusus system, another Axon product.

Here are a few of the big players positioning themselves to collect your movements, analyze your actions, and make you—the taxpayer—bear the cost for the whole bundle of privacy invasions.

Axon Enterprise’s ‘Suite’

Axon expects to have yet another year of $2 billion-plus in revenue in 2025. The company first got its hooks into police departments through the Taser, the electric stun gun. Axon then plunged into the BWC market amidst Obama-era outrage at police brutality and the flood of grant money flowing from the federal government to local police departments for BWCs, which were widely promoted as a police accountability tool. Axon parlayed its relationships with hundreds of police departments and capture and storage of growing terabytes of police footage into a menu of new technological offerings.

In its annual year-end securities filing, Axon told investors it was “building the public safety operating system of the future” through its suite of “cloud-hosted digital evidence management solutions, productivity and real-time operations software, body cameras, in-car cameras, TASER energy devices, robotic security and training solutions” to cater to agencies in the federal, corrections, justice, and security sectors.”

Axon controls an estimated 85 percent of the police body-worn camera market. Its Evidence.com platform, once a trial add-on for BWC customers, is now also one of the biggest records management systems used by police. Its other tools and services include record management, video storage in the cloud, drones, connected private cameras, analysis tools, virtual reality training, and real-time crime centers.

An image from the Quarter 4 2024 slide deck for investors, which describes different levels of the “Officer Safety Plan” (OSP) product package and highlights how 95% of Axon customers are tied to a subscription plan.

Axon has been adding AI to its repertoire, and it now features a whole “AI Era” bundle plan. One recent offering is Draft One, which connects to Axon’s body-worn cameras (BWCs) and uses AI to generate police reports based on the audio captured in the BWC footage. While use of the tool may start off as a free trial, Axon sees Draft One as another key product for capturing new customers, despite widespread skepticism of the accuracy of the reports, the inability to determine which reports have been drafted using the system, and the liability they could bring to prosecutions.

In 2024, Axon acquired a company called Fusus, a platform that combines the growing stores of data that police departments collect—notifications from gunshot detection and automated license plate reader (ALPR) systems; footage from BWCs, drones, public cameras, and sometimes private cameras; and dispatch information—to create “real-time crime centers.” The company now claims that Fusus is being used by more than 250 different policing agencies.

Fusus claims to bring the power of the real-time crime center to police departments of all sizes, which includes the ability to help police access and use live footage from both public and private cameras through an add-on service that requires a recurring subscription. It also claims to integrate nicely with surveillance tools from other providers. Recently, it has been cutting ties, most notably with Flock Safety, as it starts to envelop some of the options its frenemies had offered.

In the middle of April, Axon announced that it would begin offering fixed ALPR, a key feature of the Flock Safety catalogue, and an AI Assistant, which has been a core offering of Truleo, another Axon competitor.

Flock Safety’s Bundles and FlockOS

Flock Safety is another major police technology company that has expanded its focus from one primary technology to a whole package of equipment and software services.

Flock Safety started with ALPRs. These tools use a camera to read vehicle license plates, collecting the make, model, location, and other details which can be used for what Flock calls “Vehicle Fingerprinting.” The details are stored in a database that sometimes finds a match among a “hot list” provided by police officers, but otherwise just stores and shares data on how, where, and when everyone is driving and parking their vehicles.

Founded in 2017, Flock Safety has been working to expand its camera-based offerings, and it now claims to have a presence in more than 5,000 jurisdictions around the country, including through law enforcement and neighborhood association customers.

A list of FlockOS features proposed to Brookhaven Police Department in Georgia.

Among its tools are now the drone-as-first-responder system, gunshot detection, and a software platform meant to combine all of them. Flock also sells an option for businesses to use ALPRs to “optimize” marketing efforts and for analyzing traffic patterns to segment their patrons. Flock Safety offers the ability to integrate private camera systems as well.

A price proposal for the FlockSafety platform made to Palatine, IL

Much of what Flock Safety does now comes together in their FlockOS system, which claims to bring together various surveillance feeds and facilitate real-time “situational awareness.”

Flock is optimistic about its future, recently opening a massive new manufacturing facility in Georgia.

Motorola Solutions’ “Ecosystem”

When you think of Motorola, you may think of phones—but there’s a good chance that you missed the moment in 2011 when the phone side of the company, Motorola Mobility, split off from Motorola Solutions, which is now a big player in police surveillance.

On its website, Motorola Solutions claims that departments are better off using a whole list of equipment from the same ecosystem, boasting the tagline, “Technology that’s exponentially more powerful, together.” Motorola describes this as an “ecosystem of safety and security technologies” in its securities filings. In 2024, the company also reported $2 billion in sales, but unlike Axon, its customer base is not exclusively law enforcement and includes private entities like sports stadiums, schools, and hospitals.

Motorola’s technology includes 911 services, radio, BWCs, in-car cameras, ALPRs, drones, face recognition, crime mapping, and software that supposedly unifies it all. Notably, video can also come with artificial intelligence analysis, in some cases allowing law enforcement to search video and track individuals across cameras.

A screenshot from Motorola Solutions webpage on law enforcement technology.

In January 2019, Motorola Solutions acquired Vigilant Solutions, one of the big players in the ALPR market, as part of its takeover of Vaas International Holdings. Now the company (under the subsidiary DRN Data) claims to have billions of scans saved from police departments and private ALPR cameras around the country. Marketing language for its Vehicle Manager system highlights that “data is overwhelming,” because the amount of data being collected is “a lot.” It’s a similar claim made by other companies: Now that you’ve bought so many surveillance tools to collect so much data, you’re finding that it is too much data, so you now need more surveillance tools to organize and make sense of it.

SoundThinking’s ‘SafetySmart Platform’

SoundThinking began as ShotSpotter, a so-called gunshot detection tool that uses microphones placed around a city to identify and locate sounds of gunshots. As news reports of the tool’s inaccuracy and criticisms have grown, the company has rebranded as SoundThinking, adding to its offerings ALPRs, case management, and weapons detection. The company is now marketing its SafetySmart platform, which claims to integrate different stores of data and apply AI analytics.

In 2024, SoundThinking laid out its whole scheme in its annual report, referring to it as the “cross-sell” component of their sales strategy.

The “cross-sell” component of our strategy is designed to leverage our established relationships and understanding of the customer environs by introducing other capabilities on the SafetySmart platform that can solve other customer challenges. We are in the early stages of the upsell/cross-sell strategy, but it is promising – particularly around bundled sales such as ShotSpotter + ResourceRouter and CaseBuilder +CrimeTracer. Newport News, VA, Rocky Mount, NC, Reno, NV and others have embraced this strategy and recognized the value of utilizing multiple SafetySmart products to manage the entire life cycle of gun crime…. We will seek to drive more of this sales activity as it not only enhances our system’s effectiveness but also deepens our penetration within existing customer relationships and is a proof point that our solutions are essential for creating comprehensive public safety outcomes. Importantly, this strategy also increases the average revenue per customer and makes our customer relationships even stickier.

Many of SoundThinking’s new tools rely on a push toward “data integration” and artificial intelligence. ALPRs can be integrated with ShotSpotter. ShotSpotter can be integrated with the CaseBuilder records management system, and CaseBuilder can be integrated with CrimeTracer. CrimeTracer, once known as COPLINK X, is a platform that SoundThinking describes as a “powerful law enforcement search engine and information platform that enables law enforcement to search data from agencies across the U.S.” EFF tracks this type of tool in the Atlas of Surveillance as a third-party investigative platform: software tools that combine open-source intelligence data, police records, and other data sources, including even those found on the dark web, to generate leads or conduct analyses.

SoundThinking, like a lot of surveillance, can be costly for departments, but the company seems to see the value in fostering its existing police department relationships even if they’re not getting paid right now. In Baton Rouge, budget cuts recently resulted in the elimination of the $400,000 annual contract for ShotSpotter, but the city continues to use it.

“They have agreed to continue that service without accepting any money from us for now, while we look for possible other funding sources. It was a decision that it’s extremely expensive and kind of cost-prohibitive to move the sensors to other parts of the city,” Baton Rouge Police Department Chief Thomas Morse told a local news outlet, WBRZ.

Beware the Bundle

Government surveillance is big business. The companies that provide surveillance and police data tools know that it’s lucrative to cultivate police departments as loyal customers. They’re jockeying for monopolization of the state surveillance market that they’re helping to build. While they may be marketing public safety in their pitches for products, from ALPRs to records management to investigatory analysis to AI everything, these companies are mostly beholden to their shareholders and bottom lines.

The next time you come across BWCs or another piece of tech on your city council’s agenda or police department’s budget, take a closer look to see what other strings and surveillance tools might be attached. You are not just looking at one line item on the sheet—it’s probably an ongoing subscription to a whole package of equipment designed to challenge your privacy, and no sort of discount makes that a price worth paying.

To learn more about what surveillance tools your local agencies are using, take a look at EFF’s Atlas of Surveillance and our Street-Level Surveillance Hub.

Republished from the EFF’s Deeplinks blog.

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The destructive force that is DOGE still somehow manages to exist, despite it not being (depending on which claim is made and when) an official federal agency and/or overseen by anyone specifically identifiable as the head of DOGE.

Until recently, everyone — including Donald Trump — knew (and said as much in public) that DOGE was both a government agency and headed by Elon Musk. When the lawsuits started flying, the backtracking began by the administration, which apparently thought it could cover its tracks by walking backwards in its golf-cleated clown shows.

Trump’s love for DOGE has managed to undercut the protections DOGE hoped it would be able to avail itself of when the FOIA requests began pouring in and the discovery demands started hitting federal dockets.

The administration is now attempting a Hail Mary play, albeit one that hails Thomas and Alito (and possibly, Roberts), rather than the patron saint it’s named after. Given the makeup of this current court, it probably has a far better chance of success than simply hurling the ball into the air and hoping someone on their own team manages to come down with it. (And, indeed, it has already scored a temporary stay, thanks to an emergency order issued by Chief Justice John Roberts.)

Citizens for Responsibility and Ethics in Washington (CREW) has been suing DOGE ever since it rejected its FOIA requests for the agency’s operational documents. The Trump Administration is now fighting back, albeit with at least one hand inadvertently tied behind its back, as Josh Gerstein and Kyle Cheney report for Politico:

The Justice Department filed an emergency appeal Wednesday urging the high court to put a hold on a judge’s orders giving a watchdog group access to documents detailing firings, grant terminations and other actions proposed by the so-called Department of Government Efficiency, which was overseen by Tesla and SpaceX founder Elon Musk.

Solicitor General John Sauer is also asking the Supreme Court to block a deposition of the obscure official the Trump administration has identified as the leader of the budget-cutting drive: DOGE administrator Amy Gleason.

The crux of the administration’s opacity argument [PDF] is this: DOGE is nothing more than an advisory entity that lacks the power to make independent decisions. Obviously, everything about DOGE says otherwise, as it has propelled massive staffing and funding cuts across multiple agencies, participated in extremely careless (and possibly illegal) data exfiltration, and done pretty much whatever it wants since it materialized as the barely-sentient wet dream of a guy who insists on wearing a baseball cap to every Oval Office meeting.

But that has been undercut by Trump himself, who has stated the agency definitely can do everything the administration is now claiming in court it can’t do, as well as thrown someone under the DOGE bus to act as the recipient for the negative attention (and FOIA requests, and deposition demands) Trump managed to successfully shield his fascist-saluting man-child from since his return to the Oval Office.

This trouble has been brewing for a few months:

U.S. District Judge Christopher Cooper found there were strong indications that DOGE was actually directing cuts and layoffs at numerous federal agencies. That substantive operational role suggests DOGE’s activities fall under the Freedom of Information Act, the judge wrote.

Now that a judge is saying stuff we’ve all been able to clearly observe since DOGE’s inception, the administration now wants the Supreme Court to declare that the public (and multiple litigants) shouldn’t be allowed to believe their own eyes.

Making matters worse for the administration’s anti-transparency efforts is the fact that it has finally decided to put someone’s name on the top of the department’s letterhead: DOGE administrator Amy Gleason. (From what’s known about Gleason, it seems clear she’s being used to catch bullets meant for Trump/Musk, rather than actually direct DOGE operations.)

While this will probably keep Musk and his mouth out of court, it does make it clear that DOGE not only acts on its own impulses (rather than just offer mass termination “guidance”) but that someone will ultimately have to answer questions about DOGE’s actions in court, should discovery requests manage to secure some depositions.

Obviously, the normal court processes and determinations in litigation against DOGE cannot be allowed to stand. That’s why the administration wants the judges it bought to give it a free pass on destroying the federal government while simultaneously preventing the public from learning anything more about the salt-the-earth tactics being spearheaded by DOGE. And it really doesn’t matter whose name is currently at the top of the org chart in terms of destruction. But it does matter when it comes to FOIA litigation and the administration’s insistence DOGE is limited to simply suggesting moves the administration might want to make.

There’s no telling how this desperation move will work out. The Supreme Court has played both sides of the encroaching fascism line in recent weeks, giving Trump some free passes while occasionally shutting down the administration’s efforts to vanish constitutional rights into the anti-immigration cornfield.

Let’s hope this will end up being one of the latter. What’s already known about DOGE and its operations is extremely disturbing. Perhaps the exposure of more internal information will help more people realize the government they chose to elect is actively trying to destroy many of the things they still hold dear and propel some opposition from citizens who never thought they’d be #NeverTrump. We can only hope.

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Federal judges don’t normally punctuate their rulings with multiple exclamation points while invoking the Founding Fathers. But then again, no president before has issued executive orders targeting law firms for the clients they represent and the cases they take. In the last week, two George W. Bush-appointed conservative judges delivered brutal constitutional smackdowns of Trump’s law firm death warrants — making clear that these aren’t just bad legal tactics, they’re attacks on the core principle of an independent bar willing to challenge government power.

Last week, Judge John Bates, well known as a traditional conservative judge, blasted the Trump admin for its executive order against the law firm Jenner & Block.

In our constitutional order, few stars are as fixed as the principle that no official “can prescribe what shall be orthodox in politics.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). And in our constitutional order, few actors are as central to fixing that star as lawyers.

This case arises from one of a series of executive orders targeting law firms that, in one way or another, did not bow to the current presidential administration’s political orthodoxy. Like the others in the series, this order—which takes aim at the global law firm Jenner & Block— makes no bones about why it chose its target: it picked Jenner because of the causes Jenner champions, the clients Jenner represents, and a lawyer Jenner once employed. Going after law firms in this way is doubly violative of the Constitution. Most obviously, retaliating against firms for the views embodied in their legal work—and thereby seeking to muzzle them going forward—violates the First Amendment’s central command that government may not “use the power of the State to punish or suppress disfavored expression.” Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 188 (2024). More subtle but perhaps more pernicious is the message the order sends to the lawyers whose unalloyed advocacy protects against governmental viewpoint becoming government-imposed orthodoxy. This order, like the others, seeks to chill legal representation the administration doesn’t like, thereby insulating the Executive Branch from the judicial check fundamental to the separation of powers. It thus violates the Constitution and the Court will enjoin its operation in full.

Then on Tuesday, another extremely conservative judge, Richard Leon, delivered an even more forceful rebuke in the WilmerHale case.

The cornerstone of the American system of justice is an independent judiciary and an independent bar willing to tackle unpopular cases, however daunting. The Founding Fathers knew this! Accordingly, they took pains to enshrine in the Constitution certain rights that would serve as the foundation for that independence. Little wonder that in the nearly 250 years since the Constitution was adopted no Executive Order has been issued challenging these fundamental rights. Now, however, several Executive Orders have been issued directly challenging these rights and that independence. One of these Orders is the subject of this case. For the reasons set forth below, I have concluded that this Order must be struck down in its entirety as unconstitutional. Indeed, to rule otherwise would be unfaithful to the judgment and vision of the Founding Fathers!

Exclamation points! So many of them!

Either way, between Bates and Leon, MAGA cultists can no longer claim it’s just “radical leftist judges” ruling against them on these law firm executive warrants (not that anyone actually believed that in the first place).

While these judges are forcefully defending constitutional principles, their opinions also call out the thing that many of us find equally disturbing: the firms that chose capitulation over principle have handed Trump exactly what he wanted. Judge Bates pointedly included Trump’s own boasting about these surrenders:

Other firms skipped straight to negotiations. Without ever receiving an executive order, these firms preemptively bargained with the administration and struck deals sparing them. The deals largely mirror Paul Weiss’s, though the price continues to rise: instead of $40 million, these firms have pledged $100 million or more in pro bono legal services the administration has a hand in choosing. And in public statements, the President has floated the prospect of deploying the firms to work on the administration’s own projects, rather than traditional pro bono causes, while acknowledging the firms’ lack of wrongdoing: “I agree, they’ve done nothing wrong,” the President said at a recent event. “[B]ut what the hell, they give me a lot of money considering they’ve done nothing wrong.”

The consequences of this surrender are already playing out. At Paul Weiss — the first major firm to cave to Trump’s demands — some top partners have already jumped ship to start their own firm rather than be associated with the capitulation.

Meanwhile, the law firms that caved (including Paul Weiss) are suddenly finding that MAGA cultists are expecting the hundreds of millions worth of free legal services to start flowing immediately:

One of them is the Oversight Project, a conservative group affiliated with the Heritage Foundation. The group has sent letters to dozens of big law firms, including some that settled with the White House, asking each of them to provide up to $10 million in pro bono legal work to support litigation brought by conservative groups.

In that case, it’s at least a non-profit group. But the article also details a bunch of random MAGA fans who seem to think they should just be able to call up these firms and get free legal support.

Some veterans have viewed the deals as an open invitation to ask for free legal work*. In recent months, several have called Paul Weiss’s pro bono department asking for help on a range of issues, including their rental leases and medical benefits, two people with knowledge of the requests said.*

The pattern here should make everyone wonder why any firm caved in the first place. The court rulings make clear the executive orders were unconstitutional garbage from day one. But beyond being legally unnecessary, the capitulation has left these firms drowning in exactly the kind of bad faith exploitation any competent lawyer should have seen coming.

Which brings us to the most damning indictment of all: Law firms that can’t even advocate successfully on their own behalf have no business advocating for anyone else.

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The useful lie that alleged Tren de Aragua (TdA) gang members are engaging in coordinated violence inside the United States at the direction of the Venezuelan government has been debunked so often it’s hardly worth rehashing. Oddly enough, the debunking has come from the federal government, rather than investigative journalists or transparency groups or any of the usual suspects.

Intelligence assessments performed by intelligence agencies have found no definitive link between TdA gang members and the Venezuelan government. This is bullshit the Trump administration relies on to prop up its Alien Enemies Act declarations, which are being made for the sole purpose of denying due process to migrants the US government is deporting to literally any country that will take them.

This bullshit relies on further bullshit: the so-called “gang assessment” scorecards are being tallied up by people whose ongoing income relies on them declaring as many migrants to be TdA gang members as possible. Ex-cops working for privately-run detention centers, federal officers seeking to meet nearly impossible demands for daily expulsions, and hateful bigots in positions of power who prefer quantity to quality when it comes to ridding the nation of people who might not vote for them in upcoming elections.

With the lie now exposed multiple times, the ODNI (Office of the Director of National Intelligence) is seeking to reclaim control of the narrative. That has led to a top advisor to DNI Tulsi Gabbard telling the DNI rank-and-file that facts don’t actually matter here. What matters is how the administration feels about the people it wants to deport.

In the email, according to a person familiar with the matter and confirmed by a second source, Gabbard’s acting chief of staff Joe Kent asked for a “rethink” of an intelligence assessment contradicting the administration’s argument that Venezuela is responsible for the U.S. activities of Tren de Aragua gang members.

“I would like to understand how any IC (intelligence community) element arrived at the conclusion that the Venezuelan government doesn’t support and did not orchestrate TDA operating in the U.S.,” Kent said in the email, referring to Tren de Aragua.

Actually, Kent doesn’t want to “understand” how the IC arrived at the conclusion that TdA is not being directed by the Venezuelan government. What he really wants is for the IC to ignore the facts it has gathered and just work backwards from Trump’s AEA-enabling assumptions.

“When Biden announced that the border was open I think we let a quest for … direct links between the Venezuelan government and TDA obstruct basic common sense,” he wrote, adding that the National Intelligence Council needed to start “looking at getting a new assessment written on TDA and their relationship with the government of Venezuela that reflects basic common sense.”

Common sense would, of course, be what has already happened: a reliance on established facts and inferences drawn from a wide swath of intelligence community reporting. Common sense in Kent’s hands means something else: rewriting reports to align with the administration’s preferred fiction. And, of course, Kent none-too-subtly suggests that those adhering to facts will seem to be aligning themselves with ex-president Biden, which isn’t the sort of thing you want to do if you value your IC job.

There’s more to this than just working backwards from a false assumption to generate semi-plausible “intelligence” that supports the president’s mass ejection desires. Kent also wants to make sure those at the top still have the plausible deniability to avoid being trapped by tough questions like “why are you lying?” or “why does this sound like it was rewritten simply because it didn’t agree with DOJ and DHS allegations and assertions?”

In subsequent emails with ODNI officials, Kent also said that Gabbard needs to be “protected” in the rewriting process, according to two people familiar with the matter.

The New York Times late Tuesday reported that in one email, Kent ordered analysts to “do some rewriting” of the assessment and more analytical work so that “this document is not used against” Gabbard or Trump.

Sure, this form of intelligence isn’t the same sort intelligence that separates the smart people from the stupid. But for intelligence (of this sort) to be useful, it has to be factual, rather than merely reflective of current administration vibes. This is a key member of the ODNI telling everyone to not only be stupider, but to throw themselves under the bus if need be to protect Gabbard and Trump from any blowback.

This is undeniably ugly. Sadly, it’s just more of the same from Trump’s enablers — people who clearly prefer to serve an autocrat rather than the nation they’re selling out to keep themselves in the good graces of a moody, would-be tyrant who’s just going to fire them the moment they cease to be useful and/or when he forgets who they are. I’d call it shameful but that would assume a capacity to feel shame. Even if their consciences are empty husks, that doesn’t mean they can’t be held accountable for their actions. Hopefully, this nation will remain intact long enough to see that happen.

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The Trump administration has managed to achieve a remarkable legal double standard: ask a court for a specific remedy to address your own violations of an injunction, get exactly what you asked for, then ask for a do-over, and when you don’t get it, immediately run to the Supreme Court claiming that remedy is an unconscionable burden on executive power.

That’s precisely what’s happening with DHS’s emergency petition to the Supreme Court over a group of men the government tried to ship to South Sudan without due process.

Last Friday, we covered how the US government attempted to rendition a group of people to South Sudan — a country the State Department warns Americans not to visit due to safety concerns. As we noted, district court Judge Brian Murphy had called out that putting these folks on a plane without due process had defied earlier orders in the case, and after the government requested it (this becomes important in a moment), the court ordered the US to hold the men in Djibouti, and offer them basic due process in the form of “reasonable fear” interviews, including with their lawyers present.

Late on Friday, the government got snippy in response and asked Judge Murphy to reconsider the issue, claiming that it was apparently a pain in the ass to hold these men in Djibouti.

Defendants request that this Court reconsider its order finding that Defendants violated the preliminary injunction and its extraordinary follow-on orders imposing on Defendants additional and highly burdensome requirements…. Because of this Court’s Orders, Defendants are currently detaining dangerous criminals in a sensitive location without clear knowledge of when, how, or where this Court will tolerate their release…. This development has put impermissible, burdensome constraints on the President’s ability to carry out his Article II powers*, including his powers to command the military, manage relations with foreign nations, and execute our nation’s immigration authorities.*

As Judge Murphy pointed out in response on Monday, the US government made this very mess by ignoring his earlier injunction and putting these men on a plane, and the irony of complaining about the trouble they themselves created is not lost on him:

Defendants have mischaracterized this Court’s order, while at the same time manufacturing the very chaos they decry*. By racing to get six class members onto a plane to unstable South Sudan, clearly in breach of the law and this Court’s order, Defendants gave this Court no choice but to find that they were in violation of the Preliminary Injunction.*

On top of that, he points out that this was the remedy the DOJ itself presented:

Even after finding that violation, however, the Court stayed its hand and did not require Defendants to bring the individuals back to the United States, as requested by Plaintiffs. Instead, the Court accepted Defendants’ own suggestion that they be allowed to keep the individuals out of the country and finish their process abroad. In the interest of full transparency, the Court quotes at length from the hearing transcript:

THE COURT: [Plaintiffs’ counsel] is suggesting that the only remedy is for the plane to return here so that these individuals be given an opportunity to raise any objections they have to being sent to South Sudan. Do you have another suggestion as to what a remedy that would allow these people to have the process that they are due might be?

MR. ENSIGN: If I may, we think any remedy should be narrowly tailored to the violation. And so, you know, if Your Honor believes they weren’t given a meaningful opportunity to express a fear under CAT [Convention Against Torture], that the remedy should first be limited to giving them such a meaningful opportunity. If they were to do so, then they would be given that reasonable fear interview*. But bringing them back would be a much broader remedy than necessary because this Court only requires compliance with procedures and, to the extent that Your Honor believes those procedures were not followed, the Government should be allowed to provide those procedures, and that should satisfy the due process as interpreted by this Court.*

THE COURT: Thank you, Mr. Ensign. So let’s say that — I agree with you that I want to make the most narrowly tailored order to address the violation of my preliminary injunction that is possible. What you’re suggesting is that they can have a reasonable fear interview where they are now*. Is that a practical possibility?*

MR. ENSIGN: Your Honor, I don’t know. I’d have to speak to my client, but I think that would need to be at least one of the compliance options that’s presented, because that would be a much more narrowly tailored remedy that is actually tailored to the violation that Your Honor has found*.*

The judge gave Ensign time to talk to the government and find out that it was possible, and was told that it was. According to someone from ICE: “I know it’s possible and the Department can work it out. We’ve been working on it for the last couple of hours to make sure that we can do it, and it is possible to do it.”

Judge Murphy is not at all happy that they’re claiming this thing they asked for and said they could do is now a problem:

Since that hearing, merely five days ago, Defendants have changed their tune. It turns out that having immigration proceedings on another continent is harder and more logistically cumbersome than Defendants anticipated. However, the Court never said that Defendants had to convert their foreign military base into an immigration facility; it only left that as an option, again, at Defendants’ request*. The other option, of course, has always been to simply return to the status quo of roughly one week ago, or else choose any other location to complete the required process.*

Judge Murphy is also not persuaded by the Trump admin playbook of claiming “but these guys are, like, really bad.” As the court notes, that’s when due process matters most.

To be clear, the Court recognizes that the class members at issue here have criminal histories. But that does not change due process*. “The history of American freedom is, in no small measure, the history of procedure.” Malinski v. New York, 324 U.S. 401, 414 (1945) (Frankfurter, J., concurring). “It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law.” Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 179 (1951) (Douglas, J., concurring). The Court treats its obligation to these principles with the seriousness that anyone committed to the rule of law should understand.*

It appears that the Trump Justice Department is not at all happy about this. Rather than appeal to the First Circuit, as would normally be the next stage of the process, it has gone straight to the Supreme Court’s shadow docket, demanding emergency relief. The framing is predictable: this is about “removing dangerous criminals to protect Americans,” not about the government’s own procedural violations.

More striking is how the DOJ characterizes Judge Murphy’s decision to grant their own requested remedy as judicial overreach:

Those judicially created procedures are currently wreaking havoc on the third-country removal process. In addition to usurping the Executive’s authority over immigration policy, the injunction disrupts sensitive diplomatic, foreign-policy, and national-security efforts. Recent events vividly illustrate the injunction’s pathologies. Last week, the district court required the government to halt the ongoing third-country removal of the aforementioned criminal aliens to South Sudan. The court did so by exploiting an open-ended term in its injunction, holding that the government did not give them a “meaningful opportunity” to raise a fear of torture in that country— notwithstanding that they were all notified they were going to be removed there, and that none expressed any fear at the time, or even that day. Having slammed on the brakes while these aliens were literally mid-flight—thus forcing the government to detain them at a military base in Djibouti not designed or equipped to hold such criminals—the court then retroactively “clarified” its injunction to impose an additional set of intrusive and onerous procedures on DHS. As a result, the United States has been put to the intolerable choice of holding these aliens for additional proceedings at a military facility on foreign soil—where each day of their continued confinement risks grave harm to American foreign policy—or bringing these convicted criminals back to America. Most telling: The injunction creates such a diplomatic and logistical morass that the Secretaries of State and Defense both submitted declarations in the district court last Friday to stress the “significant and irreparable” harm that its orders impose.

Notably absent from this breathless description of judicial tyranny: any mention that the DOJ specifically requested this remedy and assured the court it was feasible.

The Trump administration is, once again, making it clear that basic things like “the rule of law” and “due process” are inconveniences that get in the way of them getting away with whatever they want to do, and they will whine and complain about any attempts by judges to actually follow the law.

Of course, it will be fascinating to see if Justice Alito agrees with the DOJ here, given that just a few weeks ago he complained about litigants racing to the Supreme Court for an emergency motion before waiting for an Appeals Court to weigh in. Will he do the same this time, when it’s his beloved Trump administration making the request?

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If you’ve been around a while you might recall that Verizon used to be utterly obnoxious when it came to absolutely everything about using your mobile phone. Once upon a time, the company banned you from even using third-party apps (including basics like GPS), forcing you to use extremely shitty Verizon apps. It also used to be absolutely horrendous when it came to unlocking phones, switching carriers, and using the device of your choice on the Verizon network.

Two things changed all that. One, back in 2008 when the company acquired spectrum that came with requirements that users be allowed to use the devices of their choice. And two, as part of merger conditions affixed to its 2021 acquisition of Tracfone. Thanks to those two events Verizon was dragged, kicking and screaming, into a new era of openness that was of huge benefit to the public.

Now, with the Trump administration openly destroying whatever’s left of U.S. federal corporate oversight and consumer protection standards, Verizon sees an opportunity. As Jon Brodkin at Ars Technica notes, Verizon’s attempting to get the Trump administration to kill all unlocking requirements, in a bid to drag everyone back to the dark ages of cellphone use.

Verizon being Verizon, they can’t help but lie about it in a petition to the Trump FCC, claiming that they simply must be allowed to unfairly lock down mobile devices, because doing anything else harms competition and helps criminals:

“The Unlocking Rule applies only to particular providers—mainly Verizon—and distorts the marketplace in a critical US industry,” the Verizon petition said. “The rule has resulted in unintended consequences that harm consumers, competition, and Verizon, while propping up international criminal organizations that profit from fraud, including device trafficking of subsidized devices from the United States. These bad actors target and harm American consumers and US carriers like Verizon for their own profit, by diverting unlocked trafficked devices to consumers in foreign countries.”

Verizon, which quickly folded to Trump administration demands that it wasn’t sexist or racist enough in exchange for Frontier merger approval, has a long history of being completely full of shit on issues relating to consumer rights. And they’re particularly full of shit here.

Historical requirements on this front make it easier for you to bring any device you’d like to the Verizon network (assuming it doesn’t harm network security). Without them, Verizon could revert to only letting you use phones Verizon chooses and sells, jacking up the price for devices. Taking it further, we could easily return to the era where Verizon only lets you use apps approved or sold by Verizon.

These openness requirements are somewhat scattershot across carriers, which is why the Biden FCC had been proposing a uniform rule that would have required that all wireless providers unlock devices within 60 days of purchase.

Not only is that effort dead now thanks to Trump’s election, but Verizon’s pushing to eliminate all such requirements, driving progress violently backward. Verizon’s hoping that such rollbacks can be part of FCC boss Brendan Carr’s “Delete, Delete, Delete” deregulatory bonanza, in which he’s destroying longstanding consumer protection standards under the pretense of government efficiency.

Verizon even name drops Elon Musk’s DOGE efforts in their petition, insisting that longstanding and popular consumer protection standards on wireless devices are “the perfect example of the type of rule that the Commission should eliminate as part of the Department of Government Efficiency’s Deregulatory Initiative.”

Even if the rules aren’t destroyed by the Trump FCC, numerous recent Trump court rulings and executive orders make it all but impossible for regulators to enforce most consumer protection rules. But Verizon, ever a fan of crushing consumer protection standards and competition, wants to make doubly sure.

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Here we go again. Late last year we talked about how revisions Japan made to copyright law within the country, predominantly as a gift to the manga and anime industries, was resulting in some absurd arrests. Specifically, the law was amended to pull copyright issues from the civil realm and into a criminal offense, which is combined with copyright law in Japan being overly protective to begin with. That’s how you get examples such as I linked to above, in which the operators of three sites that are considered “spoiler sites” — meaning that they include very little in the way of directly copied materials, but instead have content such as plot and character summaries. In America, such content is not copyright infringement. In Japan, however, it seems it is, which is very silly.

But it keeps happening. Six individuals operating another spoiler site in Japan have been referred to prosecutors for copyright infringement this past week, though there seems to be some accusation that copyrighted still images of films were on the site along with the spoilers.

A company operating a website that provided detailed spoilers and images of films has been referred to the Sendai District Public Prosecutors Office on suspicion of violating the Copyright Act. Five men and women, including the company manager, were also referred; the Miyagi Prefectural Police Headquarters and the Minamisanriku Police Station handled the investigation. Content Overseas Distribution Association (CODA), a major Japanese anti-piracy organization, reports that there are “very few precedents for a corporation being referred to the prosecutor’s office on suspicion of violating the Copyright Act, making this an extremely rare case.“

The website posted detailed content of films, such as Godzilla Minus One and four other movies copyrighted by Toho, Shin Kamen Rider and two others by Toei, Kubi and one other by KADOKAWA, and Shin Ultraman by Tsuburaya Productions. The site reportedly listed over 8,000 films, describing the names of characters, lines, actions, and scenes.

Now the details of what the “images” are that are referenced actually consist of. If they are still images of copyrighted films or, say, promotional posters or title cards, I suppose that could be copyright infringement in the barest sense of the term. While potentially technically infringing, it would be monumentally silly to turn that sort of thing into a crime. Who would be the victim of that crime? Is CODA and the content creators really suggesting that represents some danger to them?

The answer is generally no. CODA’s commentary on this whole thing makes it clear that it’s the spoiler aspect of the sites that it’s concerned about, not any images.

CODA described these types of sites as malicious, as they allow “visitors to understand the full story of the movie, reducing their willingness to pay a fair price for the content, and may even lead to people not seeing the official movie.” CODA adds that these summaries go beyond the scope of legitimate quotations.

In no sane world should spoilers for content be considered copyright infringement. That should be reserved typically for the direct copying of protected content. Or, at the very least, to content that serves as a replacement for the copyrighted content. While CODA claims that’s the case here, anyone with a couple of brain cells to rub together would have to be very skeptical of that claim.

I knew all about the twist ending in The Sixth Sense back in the day. I still went and saw the movie? Why? Because I heard from the same people that “spoiled” the twist for me that it was also an excellent movie. In fact, there is at least some chance that I went and saw the film because of the conversation that spoiled the twist. Why is CODA so sure that same isn’t occurring with sites like these?

But the basic point here is that turning this sort of thing into a criminal offense is plainly silly.

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Hamilton Vagi, head of Papua New Guinea’s National Cyber Security Centre, apparently never learned the first rule of trying to bury embarrassing information: threatening journalists just makes them dig in harder. And quite often leads to Streisanding the very information you were hoping would go away.

Back in February, DDoSecrets published around a million emails from Papua New Guinea’s Mineral Resources Authority. The response was… crickets. Turns out not many people have burning curiosity about the daily correspondence of Papua New Guinea’s mining bureaucrats, nor the willingness to dig through a million such emails.

But Vagi couldn’t let sleeping dogs lie. Three months later, he sent them a pretty threatening letter about the existence of this collection of emails.

He claims that this data is massively damaging:

The data was unlawfully obtained and poses significant risks to individuals and organizations within Papua New Guinea. It is protected under local laws, including the Digital Government Act 2022 and the National Cyber Security Policy 2021, as well as international cybersecurity regulations such as the Budapest Convention on Cybercrime, to which Papua New Guinea is a signatory. Exposure to this sensitive information could lead to identity theft, financial fraud, and reputational damage.

And, as that paragraph suggests by mentioning the “Budapest Convention on Cybercrime,” Mr. Vagi turned the threat dial up to 11 regarding how he was very much going to call the manager INTERPOL on DDoSecrets.

Given the legal protections governing this data, I urge you to remove it from your platform under both local and international laws. If the data is not removed, we may be forced to escalate this matter through the relevant legal and international channels, including cooperation with INTERPOL

Perhaps it won’t surprise you to learn that DDoSecrets doesn’t take kindly to vexatious, censorial threats. Oh, and they have a lawyer, Stanley Cohen, willing to call out the nonsense. You know that we at Techdirt love a good lawyer smackdown response letter to vexatious threats, and this sure is a good one. It starts out with a quick primer in how journalism works.

Although my clients respect your request, in keeping with age-old tradition and practice as journalists and publishers of information even, at times, sensitive embarrassing information, for use and republication by other journalist’s, DDoSecrets understands well its place and obligation to assist in the growth and protection of a robust and widespread marketplace of ideas…. even one in which controversial, if not painful, political concepts and practices arc exposed, examined and debated among the body politic as a whole.

In that light, I can assure you that my clients are not “hackers” and play no role, direct or otherwise, in identifying, seeking or obtaining information from repositories be they state or private entities concerning information and/or internal communications regarding their activities. ‘That isto say at no time does DDoSecrets identify targets or systems to be breached or the ‘manner and means by which to do so in order to access material from any state or private entity. 0, 100, as journalists living up to the highest of that profession’s age-old standards, DDoSccrets takes all necessary steps to protectredact any and all collateral personal data it might receive that if published could pose a direct threat to individuals and or their families be it personal or economic in nature. Quite frankly, that a person, entity or a state may prove to be embarrassed by virtue of a21% century political expose of their intent and activity is of no dispositive or controlling moment to DDoSecrets or, for that matter, any other journalist or publication … it comes, after all not just with the turf, but the profession.

Then, it challenges the threat to go all legal on the site:

My client is a bit shocked, but not intimidated, by your undisguised threats to retaliate against DDoSecrets for what proved to be the publication by it and others of embarrassing political data retrieved from the Mineral Resources Authority (MRA) of Papua New Guinea (PNG). I can assure you DDoSecrets played no role whatsoever in the manner and means by which the MRA material was obtained and neither requested nor directed others to do so when it was apparently “hacked” more than two years ago. Moreover, that the MRA publication contains political information that falls very clearly within the reach, responsibility and safeguard of DDoSecrets as journalists is beyond dispute.

Then Cohen drops the hammer, pointing out exactly why Vagi might be so eager to make these emails disappear. Buried in those million boring bureaucratic messages are details about the Mineral Resources Authority’s cozy relationship with government-owned mining companies on something called an “involuntary resettlement policy”—a euphemism that would make Orwell proud.

So Cohen calls attention to this in his reply letter, noting that perhaps that’s what’s driving their sudden interest in this?

As uncomfortable to state actors in PNG as it may be, one would be hard-pressed to argue that that the mere publication of data that raise questions concerning the good faith and motivation of entities involved with it constitute a violation of the intended reach of any law. For example, among the PNG related data release was an exchange of 2013-05-06 between “Mineral Government PG” and several dozen others affliated with MRA. Entitled “Consultation Meeting- Involuntary Resettlement Policy”

Seems newsworthy!

But here’s where it gets weird. Cohen reveals this wasn’t the first time Papua New Guinea officials reached out about the emails. Earlier, someone claiming to be an “ISMS consultant” for the Mineral Resources Authority took a completely different tack—asking DDoSecrets to help them figure out if it was an “insider attack.”

“That you now seek to bully DDoSecrets into removing. nay, censoring explosive embarrassing information essential to an informed body politic of the People of Papua New Guinea, regarding the pernicious relationship between the mining industry and, at times, PNG is not just an affront to the role of journalism, but a dramatic about face from an earlier outreach by others holding themselves out to be representative of MRA. Thus, in a series of earlier text messages, one self-identifying as an “ISMS consultant” working for the “Mineral Resources Authority of Papua New Guinea’ focused not on content but carrier. One such exchange is telling:

ISMS: “Either take the data being publicised, down and/or letting us know if it was an insider attack.”

DDoSecrets: “1 mean what would happen to him? Or her?”

ISMS: “Nothing. This is all about ensuring that future risks can be mitigated. We are just interested in making the MRA more secure so this doesn’t happen again”

DDoSecrets: “Ok”

ISMS: “Can you atleast confirm whether it was an insider?”

DDoSecrets: “I don’t know what to say”

ISMS: “if you can confirm it was an insider, then we can strengthen our insider security and our awareness training”

DDoSecrets: “What if don’t?”

ISMS: “IF it wasn’t an inside, then we will spend our efforts securing the perimeter.”

As for Vagi’s threats of criminal referrals and INTERPOL involvement? Cohen basically laughs him out of the room. He methodically demolishes each legal theory Vagi throws around:

Finally, I would like in brief to comment on your red herring of potential state and international criminal exposure by my client for nothing more than publication of politically sensitive material. Preliminarily, to the extent you rely upon the Budapest Convention as the basis to demand that DDoSecrets remove its expose on various protocols and activities of the Mineral Resources Authority (MRA) of Papua New Guinea, as constructed and applied your interpretation is little more than a palpable wishful shout .. an argument here lacking any relevant application as to DDoSecrets. Without analyzing in full the intended reach of the Convention, in relevant part its clear intent is not to silence publication of materials received by journalists and publications who played no role whatsoever in the activity that led to its acquisition, but rather to address “cybercrimes” such as hacking or conspiracy to hack by those who engaged in that very activity. Indeed, on this point, unless I am in need of a stronger reading glasses, I found no part of the Convention which specifically sets forth a lawful basis to prosecute not those who hacked otherwise “secure” data bases of information, but rather those who subsequently published it… here some two years later and only after taking reasonable steps to redact the information in such a way as to safeguard sensitive personal information contained therein.

Likewise, while I have reviewed the Papua New Guinea Digital Government Act 2022 and the National Cyber Security Policy 2021 and found them to reflect a powerful commitment by the state to enter the increasingly interconnected world of the 21st century, at days end neither is on point as to your demand of DDoSecrets. Thus, while these Acts clearly express a strong commitment to the establishment of a proactive and far-reaching strategy to ensure state cybersecurity by, inter alia, safeguarding digital infrastructure each fails to address let alone criminalize, as here, third party publication of embarrassing state information.

So, too, I would note that your threat to seek criminal law intervention and enforcement through various international entities including INTERPOL is likewise a bark without bite. Having litigated and prevailed at INTERPOL on the basis of the “political” exception, I am well aware of what is necessary to obtain a Red Notice against a given identified and criminally charged individual by INTERPOL, as well as its political exemption rule. In this case, your ignored demand of DDoSecrets would, in any event, fail to satisfy the requisite charging predicate for triggering a Red Notice, and most certainly presents activity well within the clear reach and intent of INTERPOL’s political immunity clause.

So what did Vagi’s legal threats accomplish? Well, they guaranteed that a lot more people are now aware of the MRA email dump and its revelations about “involuntary resettlement” policies. Before his letter, these were just boring bureaucratic emails gathering digital dust. Now they’re the subject of international attention and legal drama.

It’s a textbook case of the Streisand Effect, but with a bonus lesson: when your job involves covering up potentially sketchy mining policies, maybe don’t pick a fight with people whose entire business model depends on exposing government wrongdoing. They tend to be pretty good at it.

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