A tribute to Section 230: “No other sentence in the U.S. Code, I would assert, has been responsible for the creation of more value than that one; if you have other candidates for that honor you think more worthy, please do share them.” — David Post on the fateful, intermediary-immunizing “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This bar to liability, Post writes, helped make possible “virtually every successful online venture that emerged after 1996 — including all the usual suspects, viz. Google, Facebook, Tumblr, Twitter, Reddit, Craigslist, YouTube, Instagram, eBay, Amazon.”
New York attorney Todd C. Bank “sued Uber Technologies Inc. over its robocall campaign attacking New York Mayor Bill de Blasio over his proposal to limit the number of drivers.” Mr. Bank bills himself as the “Annoyance Lawyer.” Isn’t that term generic by now? [Bloomberg]
Lawyers continue to craft class actions (here, here, etc.) demanding hundreds of millions or billions of dollars from businesses over what are often inadvertent or gray-area violations of the Telephone Consumer Protection Act, which bans unsolicited phone communication. Consumerist Ellen Taverna of NACA, the National Association of Consumer Advocates, finds talk of abuse “ridiculous” since at the same time phone users continue to report a large volume of (often patently unlawful and TCPA-flouting) call activity. Because how could there simultaneously be the one and the other? [Alison Frankel, Reuters] Unrelatedly, class actions over TCPA have found an especially ironic target: “The American Association of Justice, the national trade association that lobbies on behalf of plaintiffs’ lawyers seeking new ways to sue, itself got sued under the TCPA – by some of its own members. The AAJ was named in a class action lawsuit related to a blast fax sent to its members by a third-party vendor.” [Bryan Quigley, U.S. Chamber Institute for Legal Reform]
“The Buffalo Bills have agreed to pay up to $3 million – largely in the form of debit cards redeemable only at the team store – to settle a class-action lawsuit that accused the team of sending too many alerts to fans who signed up for a text-messaging service.” Plaintiff Jerry Wojcik contended “that the team violated the terms of its text service by sending him 13 messages over two weeks when it promised to send no more than five per week. … He claimed in his suit that the extra texts violated the federal Telephone Consumer Protection Act, and he sought statutory damages of $500 per excessive message for negligent violations and up to $1,500 per message for willful violations.” His lawyers will pocket $562,500. [Buffalo News]
- Claimed prison guard punched him in face: “Man convicted in Chicago-area mass murder awarded $500,000” [WHAS, ABA Journal]
- Ken White “immediately repulsed and enraged” by Mayer-Brown-repped suit seeking removal of Glendale, Calif. “comfort women” memorial [Popehat]
- “Las Vegas: Man Sues Casino After $500k Loss ‘While Drunk'” [Sky News]
- Regulators blame everyone but selves: “Drug Shortages Continue to Vex Doctors” [Sabrina Tavernese, NYT on GAO report, earlier here, here, etc., etc.]
- Former Virginia attorney general Ken Cuccinelli to speak tomorrow on “dereliction of duty” of AGs who decline to defend laws deemed unconstitutional, hope someone brings up this and this [more background; and his successor Mark Herring’s view]
- Oregon: “Portland State University will pay $161,500 to settle a lawsuit claiming it discriminated against disabled students who have service animals.” [AP/KOIN] Laws make it dangerous for business owners to draw line between legitimate, fake service dogs [L.A. Times]
- Not The Onion: Canada telecoms regulator pushes XX cable channels to run more Canadian content [CBC, National Post]
Many firms are being sued for contacting their own customers via cell.
In 2001, Ms. Wahlquist [defense lawyer Becca Wahlquist of Manatt, Phelps] was involved in a class-action fax-telemarketing case against DirecTV that awarded a year of free service as part of the settlement. In 2004, when the court-appointed class administrator sent fax notices about the award to the class, DirecTV was sued again on the ground those notices violated the TCPA as well.
DirecTV won the case, but Ms. Wahlquist was shocked. “Everyone is sitting ducks,” she said.
Douglas Walburg faces potential liability of $16-48 million. What heinous acts caused such astronomical damages? A violation of 47 C.F.R. § 16.1200(a)(3)(iv), an FCC regulation that enables lawsuits against senders of unsolicited faxes.
Walburg, however, never sent any unsolicited faxes; he was sued under the regulation by a class of plaintiffs for failing to include opt-out language in faxes sent to those who expressly authorized Walburg to send them the faxes.
The Federal Communications Commission has now taken the position that a federal enactment known as the Hobbs Act “prevents federal courts from considering challenges to the validity of FCC regulations when raised as a defense in a private lawsuit.” The Cato Institute has joined the National Federation of Independent Business in an amicus brief seeking Supreme Court certiorari, supporting Walburg’s position “that the Eighth Circuit was wrong to deny him the right to judicial review without having to initiate a separate (and impossible) administrative review.” [Ilya Shapiro, Cato]
“Prosecutors claim Qwest CEO Joseph Nacchio was guilty of insider trading, and that his prosecution had nothing to do with his refusal to allow spying on his customers without the permission of the Foreign Intelligence Surveillance Court. But to this day, Nacchio insists that his prosecution was retaliation for refusing to break the law on the NSA’s behalf.” [Andrea Peterson, WaPo; earlier here, here]
Also on surveillance: “One NSA analyst was recreationally surveilling women for 5 years, until a girlfriend realized he was wiretapping her.” [Kevin Poulsen, Wired] “To boldly snoop where no snoop has snooped before” [Lowering the Bar on NSA grandiosity] No, it’s not creepy at all for the British government to put up big peeping-eyes posters to remind taxpayers they’re being watched [Telegraph last November]
Yes, “copyright infringement”:
Agencies working to curb drug trafficking, cyberattacks, money laundering, counterfeiting and even copyright infringement complain that their attempts to exploit the [National Security Agency’s] vast resources have often been turned down because their own investigations are not considered a high enough priority, current and former government officials say. …
“It’s a very common complaint about N.S.A.,” said Timothy H. Edgar, a former senior intelligence official at the White House and at the office of the director of national intelligence. “They collect all this information, but it’s difficult for the other agencies to get access to what they want.”
“The other agencies feel they should be bigger players,” said Mr. Edgar, who heard many of the disputes before leaving government this year to become a visiting fellow at Brown University. “They view the N.S.A. — incorrectly, I think — as this big pot of data that they could go get if they were just able to pry it out of them.”
Rep. Justin Amash (R-Mich.) speaks out on NSA bulk surveillance in this new Cato video with Caleb Brown. Earlier on surveillance here, here, and here; earlier on panopticons here. For the use of “money laundering” laws to pursue financial flows having nothing to do with terrorism or drug smuggling, see our reports here, here, here, here, etc.
- “Old crisis creates new leviathan” [Barton Hinkle] Some other things that maybe should happen before Snowden gets prosecuted [Bruce Schneier] “Were they here, my parents might have asked, ‘What happened to America?'” [Nat Hentoff]
- Candidate Obama, meet President Obama; on surveillance, you’ll find you have little in common [graphic courtesy Caleb Brown, Cato at Liberty] Don’t say the president wants to be trusted with complete discretion unfettered by the other branches of government; that’s his assassination program, not his surveillance program [Jacob Sullum]
- A different view: two leading libertarian legal thinkers, Roger Pilon and Richard Epstein, defend the NSA surveillance program [Chicago Tribune]
- How very wrong David Simon is about the NSA’s capabilities [Clay Shirky, Guardian]
- Tracking by advertisers just as bad? No, here’s why state surveillance is worse [Jason Kuznicki, Brian Doherty]
- I’m not the only one wondering whether prosecution of QWest’s Joseph Nacchio relates to his non-cooperation with NSA [Michael Kelly/Business Insider, Scott Shackford/Reason, Greg Campbell/Daily Caller]
- What would it take to bring back a Watergate-era spirit of reform? [Jesse Walker]
- “As the NSA has made all too clear, unless we update our concept of the Fourth Amendment to fit the realities of the Internet Age, those general warrants [despised by colonists] will be back — on a far larger scale, and in secret.” [Julian Sanchez]