Despite widespread beliefs to the contrary, patents are not a measure of innovation, nor are they needed for companies to thrive — something even Elon Musk understands. But one aspect of patents that is rarely considered is their morality. The European Patent Office’s Board of Appeal wrestled with this issue in an interesting case involving the plant extract simalikalactone E and its use to treat malaria. As the patent admits: “simalikalactone E (SkE) was isolated from Quassia amara (Simaroubaceae), a medicinal plant widely used in the Amazon for the treatment of malaria.” In other words, the use of the plant extract to treat malaria was already known among Amazonian peoples, who naturally did not try to patent it. Related to this, an objection was raised to the patent, on the grounds that it was contrary to “morality”, as defined by Article 53 of the European Patent Convention:
European patents shall not be granted in respect of:
(a) inventions the commercial exploitation of which would be contrary to “ordre public” or morality; such exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States;
the Opponent argued that the invention represented “biopiracy” on behalf of the patentee against the indigenous people involved in the original research. Specifically, the Opponent submitted that the interactions with the indigenous communities had been conducted in an immoral fashion, involving deception and an abuse of trust. According to the Opponent, the members of the communities involved had not been fully and transparently informed of the nature of the research project, its objectives, the filing of the patent, and other risks and benefits of the project to community members and their knowledge. As such, the Opponent argued, the IP rights of the communities over their traditional knowledge had been violated. The Opponent submitted that the deception and breach of trust displayed was contrary to ordre public and would jeopardize relations between indigenous and local communities and researchers.
However, the EPO’s Board of Appeal rejected this argument for an interesting reason:
The exclusion to patentability provided for in Article 53(a) EPC requires the stated offense to morality to reside in the “commercial exploitation” of the claimed invention. The claims of the patent were directed to the formula of the antimalarial, a process of manufacturing the antimalarial and its use in therapy. Given the dire need for effective antimalarial medication, the Board of Appeal found that the commercial exploitation of these inventions would not be contrary to public morality (on the contrary, they would be beneficial to society). Specifically, the Board of Appeal made a clear distinction between the morality of the commercial exploitation of an invention, and the morality of how the invention itself occurred (r.2.14).
That is, patents can be excluded if their commercial exploitation would be immoral, but it doesn’t matter if the way the invention claimed in the patent was made turned out to be immoral. European patent law simply doesn’t care about that aspect. Fortunately, that’s not the end of this particular story, as the IPKat post explains:
Questions over the morality of scientific discovery must therefore be dealt with in a different forum than the patent office. In this case, despite the decision of the Board of Appeal, the European patent in question appears to have lapsed on all member states due to failure to pay renewal fees. The US case has similarly been abandoned. It thus appears that the substantial political pressures on the [patent-holder, the French Institute for Development Research] outside the patent system have impacted their desire and/or ability to commercialise the invention.
It’s good that this kind of pressure works, but it would be better if the patent world cared more about the morality of inventors’ actions in the first place.
We’re going to go slow on this one, because there’s a lot of background and details and nuance to get into in Friday’s 5th Circuit appeals court ruling in the Missouri v. Biden case that initially resulted in a batshit crazy 4th of July ruling regarding the US government “jawboning” social media companies. The reporting on the 5th Circuit ruling has been kinda atrocious, perhaps because the end result of the ruling is this:
The district court’s judgment is AFFIRMED with respect to the White House, the Surgeon General, the CDC, and the FBI, and REVERSED as to all other officials. The preliminary injunction is VACATED except for prohibition number six, which is MODIFIED as set forth herein. The Appellants’ motion for a stay pending appeal is DENIED as moot. The Appellants’ request to extend the administrative stay for ten days following the date hereof pending an application to the Supreme Court of the United States is GRANTED, and the matter is STAYED.
Affirmed, reversed, vacated, modified, denied, granted, and stayed. All in one. There’s… a lot going on in there, and a lot of reporters aren’t familiar enough with the details, the history, or the law to figure out what’s going on. Thus, they report just on the bottom line, which is that the court is still limiting the White House. But it’s at a much, much, much lower level than the district court did, and this time it’s way more consistent with the 1st Amendment.
The real summary is this: the appeals court ditched nine out of the ten “prohibitions” that the district court put on the government, and massively narrowed the only remaining one, bringing it down to a reasonable level (telling the U.S. government that it cannot coerce social media companies, which, uh, yes, that’s exactly correct).
But then in applying its own (perhaps surprisingly, very good) analysis, the 5th Circuit did so in a slightly weird way. And then also seems to contradict the [checks notes] 5th Circuit in a different case. But we’ll get to that in another post.
Much of the reporting on this suggests it was a big loss for the Biden administration. The reality is that it’s a mostly appropriate slap on the wrist that hopefully will keep the administration from straying too close to the 1st Amendment line again. It basically threw out 9.5 out of 10 “prohibitions” placed by the lower court, and even on the half a prohibition it left, it said it didn’t apply to the parts of the government that the GOP keeps insisting were the centerpieces of the giant conspiracy they made up in their minds. The court finds that CISA, Anthony Fauci’s NIAID, and the State Department did not do anything wrong and are no longer subject to any prohibitions.
The details: the state Attorneys General of Missouri and Louisiana sued the Biden administration with some bizarrely stupid theories about the government forcing websites to take down content they disagreed with. The case was brought in a federal court district with a single Trump-appointed judge. The case was allowed to move forward by that judge, turning it into a giant fishing expedition into all sorts of government communications to the social media companies, which were then presented to the judge out of context and in a misleading manner. The original nonsense theories were mostly discarded (because they were nonsense), but by quoting some emails out of context, the states (and a few nonsense peddlers they added as plaintiffs to have standing), were able to convince the judges that something bad was going on.
As we noted in our analysis of the original ruling, they did turn up a few questionable emails from White House officials who were stupidly trying to act tough about disinformation on social media. But even then, things were taken out of context. For example, I highlighted this quote from the original ruling and called it out as obviously inappropriate by the White House:
Things apparently became tense between the White House and Facebook after that, culminating in Flaherty’s July 15, 2021 email to Facebook, in which Flaherty stated: “Are you guys fucking serious? I want an answer on what happened here and I want it today.”
Except… if you look at it in context, the email has nothing to do with content moderation. The White House had noticed that the @potus Instagram account was having some issues, and Meta told the company that “the technical issues that had been affecting follower growth on @potus have been resolved.” A WH person received this and asked for more details. Meta responded with “it was an internal technical issue that we can’t get into, but it’s now resolved and should not happen again.” Someone then cc’d Rob Flaherty, and the quote above was in response to that. That is, it was about a technical issue that had prevented the @potus account from getting more followers, and he wanted details about how that happened.
So… look, I’d still argue that Flaherty was totally out of line here, and his response was entirely inappropriate from a professional standpoint. But it had literally nothing to do with content moderation issues or pressuring the company to remove disinformation. So it’s hard to see how it was a 1st Amendment violation. Yet, Judge Terry Doughty presented it in his ruling as if that line was about the removal of COVID disinfo. It is true that Flaherty had, months earlier, asked Facebook for more details about how the company was handling COVID disinfo, but those messages do not come across as threatening in any way, just asking for info.
The only way to make them seem threatening was to then include Flaherty’s angry message from months later, eliding entirely what it was about, and pretending that it was actually a continuation of the earlier conversation about COVID disinfo. Except that it wasn’t. Did Doughty not know this? Or did he pretend? I have no idea.
Doughty somehow framed this and a few other questionably out of context things as “a far-reaching and widespread censorship campaign.” As we noted in our original post, he literally inserted words that did not exist in a quote by Renee DiResta to make this argument. He claimed the following:
According to DiResta, the EIP was designed to “get around unclear legal authorities, including very real First Amendment questions” that would arise if CISA or other government agencies were to monitor and flag information for censorship on social media.
Except, if you read DiResta’s quote, “get around” does not actually show up anywhere. Doughty just added that out of thin air, which makes me think that perhaps he also knew he was misrepresenting the context of Flaherty’s comment.
Either way, Doughty’s quote from DiResta is a judicial fiction. He inserted words she never used to change the meaning of what was said. What DiResta is actually saying is that they set up EIP as a way to help facilitate information sharing, not to “get around” the “very real First Amendment questions,” and also not to encourage removal of information, but to help social media companies and governments counter and respond to disinformation around elections (which they did for things like misleading election procedures). That is, the quote here is about respecting the 1st Amendment, not “getting around” it. Yet, Doughty added “get around” to pretend otherwise.
He then issued a wide-ranging list of 10 prohibitions that were so broad I heard from multiple people within tech companies that the federal government canceled meetings with them on important cybersecurity issues, because they were afraid that any such meeting might violate the injunction.
So the DOJ appealed, and the case went to the 5th Circuit, which has a history of going… nutty. However, this ruling is mostly not nutty. It’s actually a very thorough and careful analysis of the standards for when the government steps over over the line in violating the 1st Amendment rights by pressuring speech suppression. As we’ve detailed for years, the line is whether or not the government was being coercive. The government is very much allowed to use its own voice to persuade. But when it is coercive, it steps over the line.
The appeals court analysis on this is very thorough and right on, as it borrows the important and useful precedents from other circuits that we’ve talked about for years, agreeing with all of them. Where is the line between persuasion and coercion?
Next, we take coercion—a separate and distinct means of satisfying the close nexus test. Generally speaking, if the government compels the private party’s decision, the result will be considered a state action. Blum, 457 U.S. at 1004. So, what is coercion? We know that simply “being regulated by the State does not make one a state actor.” Halleck, 139 S. Ct. at 1932. Coercion, too, must be something more. But, distinguishing coercion from persuasion is a more nuanced task than doing the same for encouragement. Encouragement is evidenced by an exercise of active, meaningful control, whether by entanglement in the party’s decision-making process or direct involvement in carrying out the decision itself. Therefore, it may be more noticeable and, consequently, more distinguishable from persuasion. Coercion, on the other hand, may be more subtle. After all, the state may advocate—even forcefully—on behalf of its positions
It points to the key case that all of these cases always lead back to, the important Bantam Books v. Sullivan case that is generally seen as the original case on “jawboning” (government coercion to suppress speech):
That is not to say that coercion is always difficult to identify. Sometimes, coercion is obvious. Take Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). There, the Rhode Island Commission to Encourage Morality—a state-created entity—sought to stop the distribution of obscene books to kids. Id. at 59. So, it sent a letter to a book distributor with a list of verboten books and requested that they be taken off the shelves. Id. at 61–64. That request conveniently noted that compliance would “eliminate the necessity of our recommending prosecution to the Attorney General’s department.” Id. at 62 n.5. Per the Commission’s request, police officers followed up to make sure the books were removed. Id. at 68. The Court concluded that this “system of informal censorship,” which was “clearly [meant] to intimidate” the recipients through “threat of [] legal sanctions and other means of coercion” rendered the distributors’ decision to remove the books a state action. Id. at 64, 67, 71–72. Given Bantam Books, not-so subtle asks accompanied by a “system” of pressure (e.g., threats and followups) are clearly coercive.
But, the panel notes, that level of coercion is not always present, but it doesn’t mean that other actions aren’t more subtly coercive. Since the 5th Circuit doesn’t currently have a test for figuring out if speech is coercive, it adopts the same tests that were recently used in the 2nd Circuit with the NRA v. Vullo case, where the NRA went after a NY state official who encouraged insurance companies to reconsider issuing NRA-endorsed insurance policies. The 2nd Circuit ran through a test and found that this urging was an attempt at persuasion and not coercive. The 5th Circuit also cites the 9th Circuit, which even more recently tossed out a case claiming that Elizabeth Warren’s comments to Amazon regarding an anti-vaxxer’s book were coercive, ruling they were merely an attempt to persuade. Both cases take a pretty thoughtful approach to determining where the line is, so it’s good to see the 5th Circuit adopt a similar test.
For coercion, we ask if the government compelled the decision by, through threats or otherwise, intimating that some form of punishment will follow a failure to comply. Vullo, 49 F.4th at 715. Sometimes, that is obvious from the facts. See, e.g., Bantam Books, 372 U.S. at 62–63 (a mafiosi-style threat of referral to the Attorney General accompanied with persistent pressure and follow-ups). But, more often, it is not. So, to help distinguish permissible persuasion from impermissible coercion, we turn to the Second (and Ninth) Circuit’s four-factor test. Again, honing in on whether the government “intimat[ed] that some form of punishment” will follow a “failure to accede,” we parse the speaker’s messages to assess the (1) word choice and tone, including the overall “tenor” of the parties’ relationship; (2) the recipient’s perception; (3) the presence of authority, which includes whether it is reasonable to fear retaliation; and (4) whether the speaker refers to adverse consequences. Vullo, 49 F.4th at 715; see also Warren, 66 F.4th at 1207.
So, the 5th Circuit adopts a strong test to say when a government employee oversteps the line, and then looks to apply it. I’m a little surprised that the court then finds that some defendants probably did cross that line, mainly the White House and the Surgeon General’s office. I’m not completely surprised by this, as it did appear that both had certainly walked way too close to the line, and we had called out the White House for stupidly doing so. But… if that’s the case, the 5th Circuit should really show how they did so, and it does not do a very good job. It admits that the White House and the Surgeon General are free to talk to platforms about misinformation and even to advocate for positions:
Generally speaking, officials from the White House and the Surgeon General’s office had extensive, organized communications with platforms. They met regularly, traded information and reports, and worked together on a wide range of efforts. That working relationship was, at times, sweeping. Still, those facts alone likely are not problematic from a First-Amendment perspective.
So where does it go over the line? When the White House threatened to hit the companies with Section 230 reform if they didn’t clean up their sites! The ruling notes that even pressuring companies to remove content in strong language might not cross the line. But threatening regulatory reforms could:
That alone may be enough for us to find coercion. Like in Bantam Books, the officials here set about to force the platforms to remove metaphorical books from their shelves. It is uncontested that, between the White House and the Surgeon General’s office, government officials asked the platforms to remove undesirable posts and users from their platforms, sent follow-up messages of condemnation when they did not, and publicly called on the platforms to act. When the officials’ demands were not met, the platforms received promises of legal regime changes, enforcement actions, and other unspoken threats. That was likely coercive
Still… here the ruling is kinda weak. The panel notes that even with what’s said above the “officials’ demeanor” matters, and that includes their “tone.” To show that the tone was “threatening,” the panel… again quotes Flaherty’s demand for answers “immediately,” repeating Doughty’s false idea that that comment was about content moderation. It was not. The court does cite to some other “tone” issues, but again provides no context for them, and I’m not going to track down every single one.
Next, the court says we can tell that the White House’s statements were coercive because: “When officials asked for content to be removed, the platforms took it down.” Except, as we’ve reported before, that’s just not true. The transparency reports from the companies show how they regularly ignored requests from the government. And the EIP reporting system that was at the center of the lawsuit, and which many have insisted was the smoking gun, showed that the tech companies “took action” on only 35% of items. And even that number is too high, because TikTok was the most aggressive company covered, and they took action on 64% of reported URLs, meaning Facebook, Twitter, etc., took action on way less than 35%. And even that exaggerates the amount of influence because “take action” did not just mean “take down.” Indeed, the report said that only 13% of reported content was “removed.”
So, um, how does the 5th Circuit claim that “when officials asked for content to be removed, the platforms took it down”? The data simply doesn’t support that claim, unless they’re talking about some other set of requests.
One area where the court does make some good points is calling out — as we ourselves did — just how stupid it was for Joe Biden to claim that the websites were “killing people.” Of course, the court leaves out that three days later, Biden himself admitted that his original words were too strong, and that “Facebook isn’t killing people.” Somehow, only the first quote (which was admittedly stupid and wrong) makes it into the 5th Circuit opinion:
Here, the officials made express threats and, at the very least, leaned into the inherent authority of the President’s office. The officials made inflammatory accusations, such as saying that the platforms were “poison[ing]” the public, and “killing people.”
So… I’m a bit torn here. I wasn’t happy with the White House making these statements and said so at the time. But they didn’t strike me as anywhere near going over the coercive line. This court sees it differently, but seems to take a lot of commentary out of context to do so.
The concern about the FBI is similar. The court seems to read things totally out of context:
Fourth, the platforms clearly perceived the FBI’s messages as threats. For example, right before the 2022 congressional election, the FBI warned the platforms of “hack and dump” operations from “state-sponsored actors” that would spread misinformation through their sites. In doing so, the FBI officials leaned into their inherent authority. So, the platforms reacted as expected—by taking down content, including posts and accounts that originated from the United States, in direct compliance with the request.
But… that is not how anyone has described those discussions. I’ve seen multiple transcripts and interviews of people at the platforms who were in the meetings where “hack and dump” were discussed, and the tenor was more “be aware of this, as it may come from a foreign effort to spread disinfo about the election,” coming with no threat or coercion — just simply “be on the lookout” for this. It’s classic information sharing.
And the platforms had reason to be on the lookout for such things anyway. If the FBI came to Twitter and said “we’ve learned of a zero day hack that can allow hackers into your back end,” and Twitter responded by properly locking down their systems… would that be Twitter “perceiving the messages as threats,” or Twitter taking useful information from the FBI and acting accordingly? Everything I’ve seen suggests the latter.
Even stranger is the claim that the CDC was coercive. The CDC has literally zero power over the platforms. It has no regulatory power over them and now law enforcement power. So I can’t see how it was coercive at all. Here, the 5th Circuit just kinda wings it. After admitting that the CDC lacked any sort of power over the sites, it basically says “but the sites relied on info from the CDC, so it must have been coercive.”
Specifically, CDC officials directly impacted the platforms’ moderation policies. For example, in meetings with the CDC, the platforms actively sought to “get into [] policy stuff” and run their moderation policies by the CDC to determine whether the platforms’ standards were “in the right place.” Ultimately, the platforms came to heavily rely on the CDC. They adopted rule changes meant to implement the CDC’s guidance. As one platform said, they “were able to make [changes to the ‘misinfo policies’] based on the conversation [they] had last week with the CDC,” and they “immediately updated [their] policies globally” following another meeting. And, those adoptions led the platforms to make moderation decisions based entirely on the CDC’s say-so—“[t]here are several claims that we will be able to remove as soon as the CDC debunks them; until then, we are unable to remove them.” That dependence, at times, was total. For example, one platform asked the CDC how it should approach certain content and even asked the CDC to double check and proofread its proposed labels.
So… one interpretation of that is that the CDC was controlling site moderation practices. But another, more charitable (and frankly, from conversations I’ve had, way more accurate) interpretation was that we were in the middle of a fucking pandemic where there was no good info, and many websites decided (correctly) that they didn’t have epidemiologists on staff, and therefore it made sense to ask the experts what information was legit and what was not, based on what they knew at the time.
Note that in the paragraph above, the one that the 5th Circuit uses to claim that the platform polices were controlled by the CDC, it admits that the sites were reaching out to the CDC themselves, asking them for info. That… doesn’t sound coercive. That sounds like trust & safety teams recognizing that they’re not the experts in a very serious and rapidly changing crisis… and asking the experts.
Now, there were perhaps reasons that websites should have been less willing to just go with the CDC’s recommendations, but would you rather ask expert epidemiologists, or the team who most recently was trying to stop spam on your platform? It seems, kinda logical to ask the CDC, and wait until they confirmed that something was false before taking action. But alas.
Still, even with those three parts of the administration being deemed as crossing the line, most of the rest of the opinion is good. Despite all of the nonsense conspiracy theories about CISA, which were at the center of the case according to many, the 5th Circuit finds no evidence of any coercion there, and releases them from any of the restrictions.
Finally, although CISA flagged content for social-media platforms as part of its switchboarding operations, based on this record, its conduct falls on the “attempts to convince,” not “attempts to coerce,” side of the line. See Okwedy, 333 F.3d at 344; O’Handley, 62 F.4th at 1158. There is not sufficient evidence that CISA made threats of adverse consequences— explicit or implicit—to the platforms for refusing to act on the content it flagged. See Warren, 66 F.4th at 1208–11 (finding that senator’s communication was a “request rather than a command” where it did not “suggest[] that compliance was the only realistic option” or reference potential “adverse consequences”). Nor is there any indication CISA had power over the platforms in any capacity, or that their requests were threatening in tone or manner. Similarly, on this record, their requests— although certainly amounting to a non-trivial level of involvement—do not equate to meaningful control. There is no plain evidence that content was actually moderated per CISA’s requests or that any such moderation was done subject to non-independent standards.
Ditto for Fauci’s NIAID and the State Department (both of which were part of nonsense conspiracy theories). The Court says they didn’t cross the line either.
So I think the test the 5th Circuit used is correct (and matches other circuits). I find its application of the test to the White House kinda questionable, but it actually doesn’t bother me that much. With the FBI, the justification seems really weak, but frankly, the FBI should not be involved in any content moderation issues anyway, so… not a huge deal. The CDC part is the only part that seems super ridiculous as opposed to just borderline.
But saying CISA, NIAID and the State Department didn’t cross the line is good to see.
And then, even for the parts the court said did cross the line, the 5th Circuit so incredibly waters down the injunction from the massive, overbroad list of 10 “prohibited activities,” that… I don’t mind it. The court immediately kicks out 9 out of the 10 prohibited activities:
The preliminary injunction here is both vague and broader than necessary to remedy the Plaintiffs’ injuries, as shown at this preliminary juncture. As an initial matter, it is axiomatic that an injunction is overbroad if it enjoins a defendant from engaging in legal conduct. Nine of the preliminary injunction’s ten prohibitions risk doing just that. Moreover, many of the provisions are duplicative of each other and thus unnecessary.
Prohibitions one, two, three, four, five, and seven prohibit the officials from engaging in, essentially, any action “for the purpose of urging, encouraging, pressuring, or inducing” content moderation. But “urging, encouraging, pressuring” or even “inducing” action does not violate the Constitution unless and until such conduct crosses the line into coercion or significant encouragement. Compare Walker, 576 U.S. at 208 (“[A]s a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position.”), Finley, 524 U.S. at 598 (Scalia, J., concurring in judgment) (“It is the very business of government to favor and disfavor points of view . . . .”), and Vullo, 49 F.4th at 717 (holding statements “encouraging” companies to evaluate risk of doing business with the plaintiff did not violate the Constitution where the statements did not “intimate that some form of punishment or adverse regulatory action would follow the failure to accede to the request”), with Blum, 457 U.S. at 1004, and O’Handley, 62 F.4th at 1158 (“In deciding whether the government may urge a private party to remove (or refrain from engaging in) protected speech, we have drawn a sharp distinction between attempts to convince and attempts to coerce.”). These provisions also tend to overlap with each other, barring various actions that may cross the line into coercion. There is no need to try to spell out every activity that the government could possibly engage in that may run afoul of the Plaintiffs’ First Amendment rights as long the unlawful conduct is prohibited.
The eighth, ninth, and tenth provisions likewise may be unnecessary to ensure Plaintiffs’ relief. A government actor generally does not violate the First Amendment by simply “following up with social-media companies” about content-moderation, “requesting content reports from social-media companies” concerning their content-moderation, or asking social media companies to “Be on The Lookout” for certain posts.23 Plaintiffs have not carried their burden to show that these activities must be enjoined to afford Plaintiffs full relief.
The 5th Circuit, thankfully, calls for an extra special smackdown Judge Doughty’s ridiculous prohibition on any officials collaborating with the researchers at Stanford and the University of Washington who study disinformation, noting that this prohibition itself likely violates the 1st Amendment:
Finally, the fifth prohibition—which bars the officials from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group” to engage in the same activities the officials are proscribed from doing on their own— may implicate private, third-party actors that are not parties in this case and that may be entitled to their own First Amendment protections. Because the provision fails to identify the specific parties that are subject to the prohibitions, see Scott, 826 F.3d at 209, 213, and “exceeds the scope of the parties’ presentation,” OCA-Greater Houston v. Texas, 867 F.3d 604, 616 (5th Cir. 2017), Plaintiffs have not shown that the inclusion of these third parties is necessary to remedy their injury. So, this provision cannot stand at this juncture
That leaves just a single prohibition. Prohibition six, which barred “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” But, the court rightly notes that even that one remaining prohibition clearly goes too far and would suppress protected speech, and thus cuts it back even further:
That leaves provision six, which bars the officials from “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” But, those terms could also capture otherwise legal speech. So, the injunction’s language must be further tailored to exclusively target illegal conduct and provide the officials with additional guidance or instruction on what behavior is prohibited.
So, the 5th Circuit changes that one prohibition to be significantly limited. The new version reads:
Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.
And that’s… good? I mean, it’s really good. It’s basically restating exactly what all the courts have been saying all along: the government can’t coerce companies regarding their content moderation practices.
The court also makes it clear that CISA, NIAID, and the State Department are excluded from this injunction, though I’d argue that the 1st Amendment already precludes the behavior in that injunction anyway, so they already can’t do those things (and there remains no evidence that they did).
So to summarize all of this, I’d argue that the 5th Circuit got this mostly right, and corrected most of the long list of terrible things that Judge Doughty put in his original opinion and injunction. The only aspect that’s a little wonky is that it feels like the 5th Circuit applied the test for coercion in a weird way with regards to the White House, the FBI, and the CDC, often by taking things dramatically out of context.
But the “harm” of that somewhat wonky application of the test is basically non-existent, because the court also wiped out all of the problematic prohibitions in the original injunction, leaving only one, which it then modified to basically restate the crux of the 1st Amendment: the government should not coerce companies in their moderation practices. Which is something that I agree with, and which hopefully will teach the Biden administration to stop inching up towards the line of threats and coercion.
That said, this also seems to wholly contradict the very same 5th Circuit’s decision in the NetChoice v. Paxton case, but that’s the subject of my next post. As for this case, I guess it’s possible that either side could seek Supreme Court review. It would be stupid for the DOJ to do so, as this ruling gives them almost everything they really wanted, and the probability that the current Supreme Court could fuck this all up seems… decently high. That said, the plaintiffs might want to ask the Supreme Court to review for just this reason (though, of course, that only reinforces the idea that the headlines that claimed this ruling was a “loss” for the Biden admin are incredibly misleading).
There may be many good reasons to ban Russian state-sponsored media propaganda from a site or a pay TV service. But there is definitely one very bad reason to: because random governments ask you to. And, yet, that’s exactly what Meta/Facebook has done. Former UK politician Nick Clegg, who was recently promoted into the top circle of Meta execs and given full control over policy decisions, posted on Twitter (yes, the Facebook exec was posting on Twitter) that the company had decided to restrict access to Russian state-sponsored propaganda outfits RT and Sputnik because the company had “received requests from a number of Governments and the EU.”
We have received requests from a number of Governments and the EU to take further steps in relation to Russian state controlled media. Given the exceptional nature of the current situation, we will be restricting access to RT and Sputnik across the EU at this time.
This seems incredibly short-sighted. As Emerson Brooking, at the Digital Forensic Research Lab noted, if there’s a reasonable content moderation policy violation that justifies banning those organizations, do that. But saying you’re doing it because a government tells you to is bound to backfire badly.
Because the issue is that by saying you’re doing it because various governments, including the EU, asked you to do this, you’re basically setting a precedent saying that you’ll remove news organizations based on government pressure. Just think about how that will be abused. Even if Meta believes it can stand up to pressure from, say, more authoritarian governments seeking to shut down criticism, Meta has just handed them a wide-open shot to claim that the company is willing to be bullied by governments into censoring speech.
The framing and the reasoning only lends much more credence to the idea that governments can and will instruct Meta what content to allow and what to takedown, rather than its own internal policies. And that’s dangerous.
What’s incredible is that this many years into the content moderation debates, apparently Nick Clegg didn’t understand or predict this. I’m sure that there are others at Meta who recognize how problematic this looks, but the fact that Clegg failed to seems like a massive failure on one of the most central parts of doing his job.
It’s becoming an unfortunate regularity that we keep writing posts highlighting how China is trying to suppress criticism around the globe regarding its terrible handling of the COVID-19 pandemic. As we’ve said over and over again, what the world needs right now is radical transparency regarding the disease and various responses, and instead we’re getting standard operating procedures from the Chinese government which is all about suppressing bad information and denying everything (with a healthy does of spreading more disinfo everywhere — make sure you check the comments here a few hours after we post this, because it seems to show up in a timely manner).
The latest example comes from the EU, where the Chinese government pressured officials in Brussels not to release a report about the Chinese government’s disinformation efforts regarding COVID-19. While the EU did eventually release it, it put it out on a Friday evening (the classic news dump of where you hide stuff) and some of the criticism of China was supposedly “rearranged or removed.”
Four diplomatic sources told Reuters that the report had initially been slated for release on April 21 but was delayed after Chinese officials picked up on a Politico news report hat previewed its findings.
A senior Chinese official contacted European officials in Beijing the same day to tell them that, ?if the report is as described and it is released today it will be very bad for cooperation,? according to EU diplomatic correspondence reviewed by Reuters.
The correspondence quoted senior Chinese foreign ministry official Yang Xiaoguang as saying that publishing the report would make Beijing ?very angry? and accused European officials of trying to please ?someone else? – something the EU diplomats understood to be a reference to Washington.
The four sources said the report had been delayed as a result, and a comparison of the internal version of the report obtained by Reuters and the final version published late Friday showed several differences.
For reasons that are unclear, Reuters, despite breaking this story and it seeming to be an opportune time and place to do so, does not link to the report that was released. You can read it here. It seems to focus mostly on Russian disinfo campaigns, and, while it does include China, suggests that China is less active in such disinformation campaigns. Also, the key parts about China are at the very end of the document, which is apparently not where they were originally.
Once again, I completely understand that this is status quo for the Chinese government, but honestly, you would hope that in the midst of a global pandemic insecure, thin-skinned governments (and yes I’m including my own government in this) would grow up, get over it, and focus on providing the public with real info, rather than spreading nonsense and FUD.
We’re at a time when we need more transparency from our government officials than ever. And, of course, we’re not getting it. The White House ordered federal health officials to designate documents from top-level coronavirus meetings as classified, keeping them away from FOIA requesters. The nation’s other coronavirus task force — headed by Jared Kushner — is carrying out its official business using private email accounts.
Things aren’t much better at the state level. The Miami Herald filed a public records request seeking information about nursing homes in the state affected by the virus. The governor has repeatedly refused to release this information, which is putting healthcare workers and nursing home residents at risk. So, the Miami Herald sued. It notified Governor Ron DeSantis’ counsel that it would be filing suit, as is required by the state’s litigation process. The governor’s lawyers responded by telling the Herald’s legal rep to drop the case.
Florida Gov. Ron DeSantis’ general counsel called a representative of the Miami Herald’s law firm seeking to quash a public records lawsuit that would force the state to divulge the names of all elder-care facilities that have had a positive test for the coronavirus.
The back-door pressure — through an attorney that had no involvement in the case — paid off.
The law firm, Holland & Knight, told Sanford Bohrer, a senior partner with decades of representing the Miami Herald, to stand down and abandon the lawsuit.
The newspaper will not be abandoning its lawsuit. It has found another law firm to take up its case. But there’s already a chill in the air, thanks to these actions.
It appears the governor’s office spoke to a different partner in the firm, rather than the lawyer representing the paper. Conveniently, this member of the law firm has represented the state in other matters, making it that much easier to persuade the law firm to drop the Herald as a client in this case.
General Counsel Joe Jacquot sought to short-circuit the litigation. He didn’t call the lawyer who drafted the lawsuit and had sent the letter, but rather another Holland & Knight lawyer, George Meros.
Meros has represented the state on numerous matters, including its recent efforts to defend legislation that undermines the intent of Amendment 4, the ballot measure — passed overwhelmingly — that gives felons the right to vote after they have served their sentences.
Meros has represented a long list of state agencies during his career as an attorney. And his employer apparently felt the best step to take was to direct the paper to drop its lawsuit.
The governor is claiming his office did nothing wrong. His office’s spokesperson says contacting a law firm to dissuade them from filing a lawsuit is just a normal pre-litigation tactic used to “avoid unnecessary litigation.” That would make sense if the governor’s office had called to settle or offer to turn over the records the paper is seeking. But it didn’t do that. The governor’s lawyer instead leaned on a law firm employee with a long history of defending the state in lawsuits and the firm obliged by “advising” the paper to drop the lawsuit.
There’s enough plausible deniability built into this that the blame may lie with the law firm, rather than the governor’s office. If the law firm wanted to pass on the lawsuit due to possible conflicts of interest, it could have said as much. And if the governor’s office wanted to discuss the lawsuit during the five-day waiting period, it could have spoken to the paper’s rep, rather than an attorney that had frequently defended the government in the past. None of that happened, and the paper was forced to hire a new legal rep to continue seeking information the governor’s office should have been willing to release in the first place.
As Attorney General William Barr and other law enforcement officials continue to insist (falsely) that Apple refuses to cooperate with them in undermining encryption and security on all iPhones, plenty of people have been pointing out for years that the reality is that most iPhone encryption is effectively meaningless, because if a user has iCloud backups on, Apple retains the key to that data and can (and does!) open it up for legitimate law enforcement requests. In other words, it’s extremely rare that full device encryption actually keeps law enforcement out (and that leaves aside the fact that technological solutions exist for law enforcement to hack into most iPhones anyway). Indeed. as you might recall, during the FBI’s last big fight about encryption with Apple, over San Bernardino shooter Syed Farook’s iPhone, it was revealed that the FBI’s own incompetence resulted in Farook’s backups being wiped out before the FBI had a chance to access them.
For quite some time now, EFF and others have urged Apple to close this loophole and allow for truly encrypted iCloud backups, such that even Apple can’t get in. Apple has toyed with the idea, but as Tim Cook has said a few times, the company chose not to do it this way after weighing the pros and cons from a user’s perspective. The key issue: if something is fully encrypted and Apple doesn’t have the key, if you lose your password, the data is effectively gone. There is no “password reset” if Apple doesn’t retain the key:
There our users have a key and we have one. We do this because some users lose or forget their key and then expect help from us to get their data back.
However, in that same interview, Cook did suggest that Apple would move towards encrypting backups as well:
It is difficult to estimate when we will change this practice. But I think that will be regulated in the future as with the devices. So we will not have a key for it in the future.
I think that there are legitimate user-centric reasons for the decision that Apple made, though it seems clear that many, many people don’t realize that Apple still has the key to their backups. However, a new report from Reuters says that Apple killed plans to offer fully encrypted backups after the FBI got upset about it:
Apple Inc dropped plans to let iPhone users fully encrypt backups of their devices in the company?s iCloud service after the FBI complained that the move would harm investigations, six sources familiar with the matter told Reuters.
The tech giant?s reversal, about two years ago, has not previously been reported. It shows how much Apple has been willing to help U.S. law enforcement and intelligence agencies, despite taking a harder line in high-profile legal disputes with the government and casting itself as a defender of its customers? information.
At the very least, this shows (yet again) that Barr and other law enforcement officials are blatantly lying when they say that Apple does not cooperate with law enforcement or that it doesn’t take the concerns they raise seriously. On the flip side, it is a bad look for Apple, in that it has chosen to avoid a more secure option for its users’ data, going against the company’s long-standing public support for encryption and protecting users’ data.
Again, even if there is a legitimate reason for not encrypting backups — and it’s equally true that if Apple did offer it, there would be public complaints of people no longer having access to their data — it’s troubling that Apple won’t even make this an option (with clear warning statements) for end users, and that they’re doing so because of blatant fearmongering by law enforcement officials.
Of course, the other way one might look at this decision is that if Apple had gone forward with fully encrypting backups, then the DOJ, FBI and other law enforcement would have gone even more ballistic in demanding a regulatory approach that blocks pretty much all real encryption. If you buy that argument, then failing to encrypt backups is a bit of appeasement. Of course, with Barr’s recent attacks on device encryption, it seems reasonable to argue that this “compromise” isn’t enough (and, frankly, probably would never be enough) for authoritarian law enforcement folks like Barr, and thus, it’s silly for Apple to even bother to try to appease them in such a manner.
Indeed, all of this seems like an argument for why Apple should actually cooperate less with law enforcement, rather than more, as the administration keeps asking. Because even when Apple tries to work with law enforcement, it gets attacked as if it has done nothing. It seems like the only reasonable move at this point is to argue that the DOJ is a hostile actor, and Apple should act accordingly.
Earlier this month, President Trump made it explicitly clear that he expects the Jeff Sessions’ DOJ to use its power for political purposes, protecting his friends and going after his enemies:
Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff……
Big story out that the FBI ignored tens of thousands of Crooked Hillary Emails, many of which are REALLY BAD. Also gave false election info. I feel sure that we will soon be getting to the bottom of all of this corruption. At some point I may have to get involved!
And, while the DOJ hasn’t done that concerning indictments of Trump’s friends and cronies, it appears that Sessions may be moving towards it with another “enemy” in the mind of Trump. Over the last few weeks Trump has also made it clear that he (incorrectly) believes that the big internet companies are deliberately targeting conservatives, and has threatened to do something about it.
On Wednesday, just after Twitter and Facebook appeared before Congress, the DOJ released a statement saying that it was investigating whether or not actions by the big internet companies was “intentionally stifling the free exchange of ideas.” The full statement was short and to the point:
We listened to today’s Senate Select Committee on Intelligence hearing on Foreign Influence Operations’ Use of Social Media Platforms closely. The Attorney General has convened a meeting with a number of state attorneys general this month to discuss a growing concern that these companies may be hurting competition and intentionally stifling the free exchange of ideas on their platforms.
The competition question is one that the DOJ’s antitrust division clearly has authority over, but alarms should be raised about the DOJ or state AGs arguing that these platforms are “stifling the free exchange of ideas on their platforms.” Because while — on its face — that might sound like it’s supporting free speech, it’s actually an almost certain First Amendment violation by the DOJ and whatever state AGs are involved.
There are lots and lots of cases on the books about this, but government entities aren’t supposed to be in the business of telling private businesses what content they can or cannot host. Cases such as Near v. Minnesota and Bantam Books v. Sullivan have long made it clear that governments can’t be in the business of regulating the speech of private organizations — though those are both about regulations to suppress speech.
But there are related cases on compelled speech. Most famously, perhaps, is West Virginia State Board of Education v. Barnette which said schools’ can’t make kids say the Pledge of Allegiance. In that case, the court ruled:
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 politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
Forcing platforms to carry speech would clearly go against that.
Miami Herald v. Tornillo actually seems even more directly on point. It was in response to a Florida state law demanding “equal space” for political candidates, but the court ruled, pretty definitively, that as private publications, the government could not compel them to host speech they did not want to host. The ruling even discussed the issue of a lack of competition — which Sessions’ statement alludes to — and concludes that’s not an excuse for compelling speech. In CBS v. the Democratic National Committee, the Supreme Court clearly noted:
The power of a privately owned newspaper to advance its own political, social, and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers — and hence advertisers — to assure financial success; and, second, the journalistic integrity of its editors and publishers.
In other words, if a private speech hosting platform is too one-sided, that is for the market to decide, not the government.
So, yeah, there are concerns raised here about freedom of expression… but it’s by Attorney General Jeff Sessions and whichever State Attorneys General decide to participate in this clown show. Oh, and just to put a little more emphasis on why this is clearly a political move designed to suppress free speech rights? So far only Republican Attorneys General have been invited — a point I’m sure any court would take note of.
Here’s quite a scoop from Joe Mullin over at Ars Technica. Apparently, Disney is getting a bit desperate on the whole TPP thing. The company, which has been having a rough go of things because of the next generation not giving a shit about ESPN, decided to take things up a notch. CEO Bob Iger apparently emailed Disney employees asking them to contribute to DisneyPAC, specifically to help Disney pay for lobbyists to push the TPP across the finish line. They even made it so easy that employees can donate directly from their payroll. Here’s the letter, with some commentary (how can I resist?):
As we head into the election year of 2016, the electorate faces significant decisions about the direction of our Nation’s future. Besides choosing a new president, we will once again be electing new senators and representatives. These decisions will have a profound impact on the lives of all Americans. The election will also impact issues that affect our company. As such, we will continue to work with our representatives in Congress to ensure that they understand our perspective on critical issues like trade, intellectual property, tax, and travel policies. I write to urge you to consider supporting the Company’s efforts through a contribution to DisneyPAC. A well funded DisneyPAC is an important tool in our efforts to maintain our positive profile in Washington.
We’re a big giant company, and as such, we’ve stopped innovating. So we need to keep friends in Washington to protect us from innovation and competition. Please consider taking your hard earned money and giving it to us so we can keep doing that kind of thing.
In the past year, we successfully advocated the Company’s position on a number of issues that have a significant impact on our business. We played a major role in ensuring that the “Trade Promotion Authority” legislation set high standards for intellectual property (IP) provisions in our trade negotiations, and we helped get that bill through Congress. We used that language in TPA to advocate successfully for a strong IP chapter in the Trans-Pacific Partnership (TPP) trade negotiations. We also pushed for provisions to promote digital trade and to reduce barriers in media and entertainment sectors. TPP will establish a strong baseline of protection for intellectual property while breaking down trade barriers in the Asia Pacific region. In both TPA and TPP we had to overcome significant efforts to weaken respect for IP, pushed not only by foreign governments but also from within our own Congress and the Administration.
Have you heard about the TPP? It was negotiated in backrooms by special interests — but good news — we’re one of the big special interests! So we helped craft it and it’s got all sorts of goodies for us. Not the public, of course. Or even you workers. But it’s really awesome for Disney bosses.
The fight on these issues is far from over. Last year we spent significant time and effort engaged in a series of government reviews of the state of copyright law in the digital environment.
By the way, did we mention that 18 years ago we successfully extended copyright 20 years to keep Mickey Mouse from reaching the public domain, and we have two years left to do it again. Think of the Mouse, Disney employees. Think of the mouse!
We also continued to defend our right to be compensated for carriage of our programming by cable and satellite carriers as well as by emerging “over-the-top” services. With the support of the US Government we achieved a win in the Supreme Court against Aereo?an Internet service claiming the right to retransmit our broadcast signals without paying copyright or retransmission consent fees. With respect to tax issues, Congress extended certain provisions that provide favorable tax treatment for film and television production in the US. It also extended this treatment to live theatrical productions. Last year we also worked closely with the Administration on important veterans employment issues?an issue of critical importance for the men and women who defend our country and an area in which our company is proud to play a leadership role.
Yes, thanks to our efforts, we were able to destroy innovative technologies that consumers really liked! And now we’re losing customers who are ditching cable. But rather than help us innovate, please contribute more money so that we can shut down other new innovations. Because we’re Disney and thwarting innovation is just what we do these days.
In the coming year, we expect Congress and the Administration to be active on copyright regime issues, efforts to enact legislation to approve and implement the Trans-Pacific Partnership trade agreement, tax reform, and more proposals to weaken retransmission consent, to name a few.
Can you believe those numbskulls in Washington? We already did this once and suddenly they’re back again, talking about the public interest and consumer rights and all that crap again. Please help us put an end to it.
On the trade front, we will also look to build on our achievements in other negotiations this year. 2016 should see significant activity in negotiations between the US and China over a Bilateral Investment Treaty (BIT), continued negotiations with the European Union over the proposed Transatlantic Trade and Investment Partnership agreement, the 50-country Trade in Services Agreement negotiations, and efforts by the US Government to raise IP standards and break down trade barriers through a variety of means.
We successfully got awesome anti-public / pro-Disney language into the TPP and now we can do it again in other trade deals. Go team! Help us lock up culture even more! And pretend it’s about “free trade.”
In 2016, Congress will further discuss various tax reform proposals. While comprehensive reform is unlikely, activity in the coming year will lay the foundation for what many expect to be a genuine opportunity for reform in early 2017. We have been active educating Members of Congress on the importance of lowering the corporate tax rate to be competitive with the rest of the world. The US has one of the highest marginal and effective tax rates among developed countries, creating a significant competitive impediment to companies headquartered in the US.
Because, yes, we know that you, dear Disney employee, are quite concerned about the tax rates of giant conglomerates like Disney. Please give us money to help us get a tax break! We may give you a free ticket to Disneyland in exchange. But no free music or movies. That’s bad.
Congress will continue to be very active on intellectual property issues… After three years of hearings and testimony from 100 witnesses, we now expect the House Judiciary Committee to turn to legislating. We expect significant attention on legislation to modernize the Copyright Office, a small agency that can have an enormous impact on our interests.
Did you hear about the newly nominated Librarian of Congress? We hear she actually cares about the public and open access, and that’s bad and must be stopped. At the very least, let’s rip the Copyright Office out from under her and put it in the hands of people who understand us better. And by “understand” I mean, will soon accept jobs from us when they “transition” out of government work.
And the Copyright Office has launched several proceedings involving possible changes to laws governing the accountability of online services and the laws protecting technologies used to secure distribution of digital content. These discussions obviously have significant implications for a business like ours that is dependent on copyright policy in the face of ongoing change in technology and the marketplace.
Did I mention our successful efforts in killing innovation? This is the next part of our plan. Like the internet? Fuck you. We’re Disney and we’re going to fuck it up. With your money, hopefully!
We will also need to continue our work to fend off growing and concerted efforts to weaken our ability to freely negotiate the distribution of our broadcast and cable programming. Last year, the FCC teed up several rule makings that could have a significant adverse affect on retransmission consent and how we package and sell our media networks. As the debate becomes much more heated, we will need to remain vigilant.
Did you notice how odd it was that the FCC suddenly seemed to be caring about consumers again? We can’t have that. We CANNOT have that. Please help us destroy the FCC. Sure your cable bills will be higher, and the internet will suck, but we’re Disney. We’ve got a mouse.
With all of the challenges we will face this year, it is important that our PAC be strong. We, therefore, respectfully suggest that you consider making a contribution of [REDACTED]. You may give more or less than the suggested amount (although no contribution can exceed $5000 in any year) and any contribution will be appreciated. As always, 100% of your contribution is used in direct support of candidates and political entities that uphold policies and principles that are consistent with the best interests of our company. DisneyPAC contributes equally to Democrats and Republicans each calendar year. For your convenience, DisneyPAC has implemented a payroll deduction system, through which your contributions to the PAC will be deducted from your weekly paycheck. If you prefer, you may instead make a one-time personal contribution to the PAC. Your contribution is important to all of us, but I want to emphasize that all contributions are voluntary and have no impact on your job status, performance review, compensation, or employment. Any amount given or the decision not to give will not advantage or disadvantage you. You have the right to refuse to contribute without reprisal. Your help is truly appreciated.
We’ll take money straight from your paycheck and put it to work making corporate Disney’s life better. Not yours. Do that with whatever money you have left.
GigaOm points our attention to complaints from some Dutch hosting companies that the government there is increasingly pressuring them to simply remove content claiming that it is “jihadist,” but without any attempt to get a court order or to file criminal charges. We’ve seen this before, of course. The US government effectively forced Wikileaks to scramble for new hosting after pressure caused its hosting providers to pull the plug. Other services are pressured into removing certain types of content as well.
In the story linked above, the Dutch Hosting Provider Association (DHPA) claims that prosecutors are simply going to hosting companies and declaring, without any court order or underlying legal argument, that certain content is jihadist and should be removed. Feeling pressured and threatened, many hosts will simply remove that content. While the content may be incendiary, does that mean that there should be no due process at all? And the very real risk of overblocking doesn’t seem to concern those demanding the content be taken down. The story notes one example of a video of a group of men around a campfire shooting guns — but they note it’s not entirely clear why they’re shooting. And yet, they were told to take the video down.
It’s easy to say “this content is dangerous, take it down,” without recognizing the slippery slope of censorship this creates. No one is defending efforts to recruit people into jihadist groups, but leaping immediately to censorship without due process or any evidence of actual law breaking is not the way to protect a free and open society. It seems very much like the opposite.
On Friday, we wrote briefly about President Obama’s “admission” that “we tortured some folks.” At the time I was going off of the press reports of the conference, but now that I’ve read the full transcript of his statement, it’s much worse than just that brief comment. Here’s the relevant portion:
With respect to the larger point of the RDI report itself, even before I came into office I was very clear that in the immediate aftermath of 9/11 we did some things that were wrong. We did a whole lot of things that were right, but we tortured some folks. We did some things that were contrary to our values.
I understand why it happened. I think it’s important when we look back to recall how afraid people were after the Twin Towers fell and the Pentagon had been hit and the plane in Pennsylvania had fallen, and people did not know whether more attacks were imminent, and there was enormous pressure on our law enforcement and our national security teams to try to deal with this. And it’s important for us not to feel too sanctimonious in retrospect about the tough job that those folks had. And a lot of those folks were working hard under enormous pressure and are real patriots.
It was the “we tortured some folks” that reasonably made headlines, but the following paragraph, in which he tries to brush it off, is what’s really troubling. Imagine any other crime, and think about whether or not you’d have someone say it was okay because there was “enormous pressure” on the people committing the crime. Imagine any other crime, and being told “not to feel too sanctimonious” because of what a “tough job” any other criminal had. I’m sorry, but I don’t care how much pressure anyone was under, plenty of people who are actually “real patriots” know that you don’t torture people. Not only does it not work, it’s morally reprehensible. “You don’t torture” is a pretty straightforward concept — and one that was pretty clearly known and articulated prior to all of this. Nothing that happened on 9/11 or in the aftermath magically made war crimes like torture okay.
Those aren’t “patriots,” and defending them because of the “pressure” they were under is an incredibly cowardly and disgusting move.
