It was just last month that Brett Kavanaugh gave his explanation for why it was perfectly okay for Homeland Security goons to profile brown people and detain them based on nothing more than the color of their skin. While his cowardly colleagues in the majority on that shadow docket decision refused to explain their thinking, Kavanaugh actually wrote a concurrence that was so out of touch with reality as to be embarrassing. But at least it was an explanation.
The key bit from him that has stood out is this:
Importantly, reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status.If the person is a U. S. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter. Only if the person is illegally in the United States may the stop lead to further immigration proceedings.
It’s this weird, privileged, out-of-touch statement that if ICE or CBP stop you for being brown, they’ll let you go as soon as you show them that you’re an American citizen. Of course, we knew at the time that wasn’t true. Hell, there were details that Kavanaugh ignored in that very lawsuit, which Justice Sotomayor called out in her dissent. But literally in this very lawsuit was the documentation of how it wasn’t so simple:
To give just one example,Plaintiff Jason Brian Gavidia is a U.S. citizen who was born and raised in East Los Angelesand identifies as Latino. On the afternoon of June 12, he stepped onto the sidewalk outside of a tow yard in Montebello, California, where he saw agents carrying handguns and military-style rifles. One agent ordered him to “Stop right there” while another “ran towards [him].”The agents repeatedly asked Gavidia whether he is American—and they repeatedly ignored his answer: “I am an American.”The agents asked Gavidia what hospital he was born in—and he explained that he did not know which hospital. “The agents forcefully pushed [Gavidia] up against the metal gated fence, put [his] hands behind [his] back, and twisted [his] arm.” An agent asked again, “What hospital were you born in?” Gavidia again explained that he did not know which hospital and said “East L.A.”He then told the agents he could show them his Real ID. The agents took Gavidia’s ID and his phone and kept his phone for 20 minutes. They never returned his ID.
Drexel law professor Anil Kalhan quickly dubbed these bullshit pretextual stops of US citizens as “Kavanaugh stops” and the name has stuck.
While there is an effort to challenge these further in court, for now the goon squad known as ICE is unleashed even more than usual. We now know that there are at least 170 US citizens who have been held by immigration officials, and there are probably even more not yet accounted for.
It feels like every day we hear about another few:
ICE violently detain father & son walking to school—teenage boy had to be rushed to hospital."I was just going to school," kid cries out. "I'm underage!"The 16-year-old star athlete is a U.S. citizen—agents sent him to the hospital with severe injuries to his back & neck.Houston, Texas.
These Kavanaugh stops are a stain on the American concept of civil liberties and due process, and they should be a stain on Brett Kavanaugh’s legacy. Legal journalist Chris Geidner just ran a piece on 50 days of Kavanaugh stops, and what a shameful moment this is of American bigotry.
Geidner has directly submitted questions to Kavanaugh to see how he feels about all of these Kavanaugh stops that show his claim of “brief encounters” with law enforcement were bullshit:
I asked Justice Kavanaugh on October 14, “Do you have any comment on the ICE stop of Maria Greeley, a U.S. citizen, who was reportedly stopped, ziptied, and told she didn’t ‘look like’ a ‘Greeley’ despite being a U.S. citizen?“
On both occasions, I also asked Kavanaugh whether he still thinks he was correct when he wrote that these stops are “typically brief” and that all of this is fine because “individuals may promptly go free after making clear to the immigration officers that they are U. S. citizens or otherwise legally in the United States.”
Finally, I asked Kavanaugh if he was aware of the “Kavanaugh stop” terminology and whether he had any comment on it.
[….]
So, I asked Justice Kavanaugh on October 16, “Do you have any comment on the Pro Publica report that found ‘more than 50 Americans who were held after [immigration] agents questioned their citizenship’ during 2025. ‘They were almost all Latino,’ per the report.“
In addition to the other questions previously raised, I also asked Kavanaugh whether “the possibility of after-the-fact ‘excessive force’ claims” is “a sufficient answer to this ongoing, regularly occurring problem?”
Did you guess what happened? Of course you did!
I have not received a response from him or his chambers.
You can already see the horrific legacy that is forming around the concept of Kavanaugh stops. This is a legacy that doesn’t go away easily. It’s like the Dred Scott decision, the Korematsu decision, or Buck v. Bell. Supreme Court decisions that nearly everyone now looks back on in horror.
These are all horrible, hateful decisions by out-of-touch bigots, who can’t even fathom a world in which those less fortunate themselves even matter, and thus their rights and dignity are barely given a second thought.
The Supreme Court still has a chance to fix this, since Kavanaugh stops were only defined by Justice Kavanaugh in a shadow docket concurrence. While those other cases all took decades for everyone to realize how fucked up they were, this one we can see in real time what a stain it is for anyone who believes that America respects basic civil liberties like due process and concepts like probable cause.
But, for now at least, that stain should stick to Brett Kavanaugh. He’s justified this. He’s insisted these kinds of stops are no big deal, even as there was evidence then, and even with more mounting evidence now, that immigration officials don’t give a shit if you are an American citizen. If you’re darker skinned, they can treat you like shit, lock you up, beat you up, ignore your protestations and even evidence of American citizenship.
It is a deep, dark stain on America as a supposed land of freedom, and it should be tied up with Brett Kavanaugh’s legacy forever.
When Immigration and Customs Enforcement officers stormed through Santa Ana, California, in June, panicked calls flooded into the city’s emergency response system.
Recordings of those calls, obtained by ProPublica, captured some of the terror residents felt as they watched masked men ambush people and force them into unmarked cars. In some cases, the men wore plain clothes and refused to identify themselves. There was no way to confirm whether they were immigration agents or imposters. In six of the calls to Santa Ana police, residents described what they were seeing as kidnappings.
“He’s bleeding,” one caller said about a person he saw yanked from a car wash lot and beaten. “They dumped him into a white van. It doesn’t say ICE.”
One woman’s voice shook as she asked, “What kind of police go around without license plates?”
And then this from another: “Should we just run from them?”
During a tense public meeting days later, Mayor Valerie Amezcua and the City Council asked their police chief whether there was anything they could do to rein in the federal agents — even if only to ban the use of masks. The answer was a resounding no. Plus, filing complaints with the Department of Homeland Security was likely to go nowhere because the office that once handled them had been dismantled. There was little chance of holding individual agents accountable for alleged abuses because, among other hurdles, there was no way to reliably learn their identities.
Since then, Amezcua, 58, said she has reluctantly accepted the reality: There are virtually no limits on what federal agents can do to achieve President Donald Trump’s goal of mass deportations. Santa Ana has proven to be a template for much larger raids and even more violent arrests in Chicago and elsewhere. “It’s almost like he tries it out in this county and says, ‘It worked there, so now let me send them there,’” Amezcua said.
Current and former national security officials share the mayor’s concerns. They describe the legions of masked immigration officers operating in near-total anonymity on the orders of the president as the crossing of a line that had long set the United States apart from the world’s most repressive regimes. ICE, in their view, has become an unfettered and unaccountable national police force. The transformation, the officials say, unfolded rapidly and in plain sight. Trump’s DHS appointees swiftly dismantled civil rights guardrails, encouraged agents to wear masks, threatened groups and state governments that stood in their way, and then made so many arrests that the influx overwhelmed lawyers trying to defend immigrants taken out of state or out of the country.
And although they are reluctant to predict the future, the current and former officials worry that this force assembled from federal agents across the country could eventually be turned against any groups the administration labels a threat.
One former senior DHS official who was involved in oversight said that what is happening on American streets today “gives me goosebumps.”
Speaking on condition of anonymity for fear of retaliation, the official rattled off scenes that once would’ve triggered investigations: “Accosting people outside of their immigration court hearings where they’re showing up and trying to do the right thing and then hauling them off to an immigration jail in the middle of the country where they can’t access loved ones or speak to counsel. Bands of masked men apprehending people in broad daylight in the streets and hauling them off. Disappearing people to a third country, to a prison where there’s a documented record of serious torture and human rights abuse.”
The former official paused. “We’re at an inflection point in history right now and it’s frightening.”
Although ICE is conducting itself out in the open, even inviting conservative social media influencers to accompany its agents on high-profile raids, the agency operates in darkness. The identities of DHS officers, their salaries and their operations have long been withheld for security reasons and generally exempted from disclosure under the Freedom of Information Act. However, there were offices within DHS created to hold agents and their supervisors accountable for their actions on the job. The Office for Civil Rights and Civil Liberties, created by Congress and led largely by lawyers, investigated allegations of rape and unlawful searches from both the public and within DHS ranks, for instance. Egregious conduct was referred to the Justice Department.
The CRCL office had limited powers; former staffers say their job was to protect DHS by ensuring personnel followed the law and addressed civil rights concerns. Still, it was effective in stalling rushed deportations or ensuring detainees had access to phones and lawyers. And even when its investigations didn’t fix problems, CRCL provided an accounting of allegations and a measure of transparency for Congress and the public.
The office processed thousands of complaints — 3,000 in fiscal year 2023 alone — ranging from allegations of lack of access to medical treatment to reports of sexual assault at detention centers. Former staffers said around 600 complaints were open when work was suspended.
The administration has gutted most of the office. What’s left of it was led, at least for a while, by a 29-year-old White House appointee who helped craft Project 2025, the right-wing blueprint that broadly calls for the curtailment of civil rights enforcement.
Meanwhile, ICE is enjoying a windfall in resources. On top of its annual operating budget of $10 billion a year, the so-called One Big Beautiful Bill included an added $7.5 billion a year for the next four years for recruiting and retention alone. As part of its hiring blitz, the agency has dropped age, training and education standards and has offered recruits signing bonuses as high as $50,000.
“Supercharging this law enforcement agency and at the same time you have oversight being eliminated?” said the former DHS official. “This is very scary.”
Michelle Brané, a longtime human rights attorney who directed DHS’ ombudsman office during the Biden administration, said Trump’s adherence to “the authoritarian playbook is not even subtle.”
“ICE, their secret police, is their tool,” Brané said. “Once they have that power, which they have now, there’s nothing stopping them from using it against citizens.”
Tricia McLaughlin, the DHS assistant secretary for public affairs, refuted descriptions of ICE as a secret police force. She called such comparisons the kind of “smears and demonization” that led to the recent attack on an ICE facility in Texas, in which a gunman targeted an ICE transport van and shot three detained migrants, two of them fatally, before killing himself.
In a written response to ProPublica, McLaughlin dismissed the current and former national security officials and scholars interviewed by ProPublica as “far-left champagne socialists” who haven’t seen ICE enforcement up close.
“If they had,” she wrote, “they would know when our heroic law enforcement officers conduct operations, they clearly identify themselves as law enforcement while wearing masks to protect themselves from being targeted by highly sophisticated gangs” and other criminals.
McLaughlin said the recruiting blitz is not compromising standards. She wrote that the Federal Law Enforcement Training Center is ready for 11,000 new hires by the beginning of next year and that training has been streamlined and boosted by technology. “Our workforce never stops learning,” McLaughlin wrote.
White House spokesperson Abigail Jackson also praised ICE conduct and accused Democrats of making “dangerous, untrue smears.”
“ICE officers act heroically to enforce the law, arrest criminal illegal aliens and protect American communities with the utmost professionalism,” Jackson said. “Anyone pointing the finger at law enforcement officers instead of the criminals are simply doing the bidding of criminal illegal aliens and fueling false narratives that lead to violence.”
Homeland Security Secretary Kristi Noem, the Trump pick who fired nearly the entire civil rights oversight staff, said the move was in response to CRCL functioning “as internal adversaries that slow down operations,” according to a DHS spokesperson.
Trump also eliminated the department’s Office of the Citizenship and Immigration Services Ombudsman, which was charged with flagging inhumane conditions at ICE detention facilities where many of the apprehended immigrants are held. The office was resurrected after a lawsuit and court order, though it’s sparsely staffed.
The hobbling of the office comes as the White House embarks on an aggressive expansion of detention sites with an eye toward repurposing old jails or building new ones with names that telegraph harsh conditions: “Alligator Alcatraz” in the Florida Everglades, built by the state and operated in partnership with DHS, or the “Cornhusker Clink” in Nebraska.
“It is a shocking situation to be in that I don’t think anybody anticipated a year ago,” said Erica Frantz, a political scientist at Michigan State University who studies authoritarianism. “We might’ve thought that we were going to see a slide, but I don’t think anybody anticipated how quickly it would transpire, and now people at all levels are scrambling to figure out how to push back.”
“Authoritarian Playbook”
Frantz and other scholars who study anti-democratic political systems in other countries said there are numerous examples in which ICE’s activities appear cut from an authoritarian playbook. Among them was the detention of Tufts University doctoral student Rümeysa Öztürk, who was apprehended after co-writing an op-ed for the campus paper that criticized the school’s response to the war in Gaza. ICE held her incommunicado for 24 hours and then shuffled her through three states before jailing her in Louisiana.
“The thing that got me into the topic of ‘maybe ICE is a secret police force’?” said Lee Morgenbesser, an Australian political science professor who studies authoritarianism. “It was that daylight snatching of the Tufts student.”
Morgenbesser was also struck by the high-profile instances of ICE detaining elected officials who attempted to stand in their way. Among them, New York City Comptroller Brad Lander was detained for demanding a judicial warrant from ICE, and U.S. Sen. Alex Padilla was forcibly removed from a DHS press conference.
And David Sklansky, a Stanford Law School professor who researches policing and democracy, said it appears that ICE’s agents are allowed to operate with complete anonymity. “It’s not just that people can’t see faces of the officers,” Sklansky said. “The officers aren’t wearing shoulder insignia or name tags.”
U.S. District Judge William G. Young, a Ronald Reagan appointee, recently pointed out that use of masked law enforcement officers had long been considered anathema to American ideals. In a blistering ruling against the administration’s arrests of pro-Palestinian protesters, he wrote, “To us, masks are associated with cowardly desperados and the despised Ku Klux Klan. In all our history we have never tolerated an armed masked secret police.” The Trump administration has said it will appeal that ruling.
Where the Fallout is Felt
The fallout is being felt in places like Hays County, Texas, not far from Austin, where ICE apprehended 47 people, including nine children, during a birthday celebration in the early morning of April 1.
The agency’s only disclosure about the raid in Dripping Springs describes the operation as part of a yearlong investigation targeting “members and associates believed to be part of the Venezuelan transnational gang, Tren de Aragua.”
Six months later, the county’s top elected official told ProPublica the federal government has ignored his attempts to get answers.
“We’re not told why they took them, and we’re not told where they took them,” said County Judge Ruben Becerra, a Democrat. “By definition, that’s a kidnapping.”
In the raid, a Texas trooper secured a search warrant that allowed law enforcement officers to breach the home, an Airbnb rental on a vast stretch of land in the Hill Country. Becerra told ProPublica he believes the suspicion of drugs at the party was a pretense to pull people out of the house so ICE officers who lacked a warrant could take them into custody. The Texas Department of Public Safety did not respond to a request for comment.
The Trump administration has yet to produce evidence supporting claims of gang involvement, said Karen Muñoz, a civil rights attorney helping families track down their relatives who were jailed or deported. While some court documents are sealed, nothing in the public record verifies the gang affiliation DHS cited as the cause for the birthday party raid.
“There’s no evidence released at all that any person kidnapped at that party was a member of any organized criminal group,” Muñoz said.
McLaughlin, the DHS spokesperson, did not respond to questions about Hays County and other raids where families and attorneys allege a lack of transparency and due process.
In Plain Sight
Months after ICE’s widely publicized raids, fear continues to envelop Santa Ana, a majority-Hispanic city with a large immigrant population. Amezcua, the mayor, said the raids have complicated local policing and rendered parents afraid to pick up their children from school. The city manager, a California-born citizen and Latino, carries with him three government IDs, including a passport.
Raids of car washes and apartment buildings continue, but the community has started to “push back,” Amezcua said. “Like many other communities, the neighbors come out. People stop in the middle of traffic.”
With so few institutional checks on ICE’s powers, citizens are increasingly relying on themselves. On at least one occasion in nearby Downey, a citizen’s intervention had some effect.
On June 12, Melyssa Rivas had just started her workday when a colleague burst into her office with urgent news: “ICE is here.”
The commotion was around the corner in Rivas’ hometown, a Los Angeles suburb locals call “Mexican Beverly Hills” for its stately houses and affluent Hispanic families. Rivas, 31, the daughter of Mexican immigrants, belongs to Facebook groups where residents share updates about cultural festivals, church programs and, these days, the presence of Trump’s deportation foot soldiers.
Rivas had seen posts about ICE officers sweeping through LA and figured Downey’s turn had come. She and her co-worker rushed toward the sound of screaming at a nearby intersection. Rivas hit “record” on her phone as a semicircle of trucks and vans came into view. She filmed at least half a dozen masked men in camouflage vests encircling a Hispanic man on his knees.
Her unease deepened as she registered details that “didn’t seem right,” Rivas recalled in an interview. She said the parked vans had out-of-state plates or no tags. The armed men wore only generic “police” patches, and most were in street clothes. No visible insignia identified them as state or federal — or even legal authorities at all.
“When is it that we just decided to do things a different way? There’s due process, there’s a legal way, and it just doesn’t seem to matter anymore,” Rivas said. “Where are human rights?”
Video footage shows Rivas and others berating the officers for complicity in what they called a “kidnapping.” Local news channels later reported that the vehicles had chased the man after a raid at a nearby car wash.
“I know half of you guys know this is fucked up,” Rivas was recorded telling the officers.
Moments later, the scene took a turn. As suddenly as they’d arrived, the officers returned to their vehicles and left, with no apology and no explanation to the distraught man they left on the sidewalk.
Through a mask, one of them said, “Have a good day.”
There was a colloquy at oral argument earlier this year in the Free Speech Coalition v. Paxton case between Justice Kavanaugh and FSC that raised the unsettling prospect that at least several of the Supreme Court justices did not understand what preliminary injunctions are for. In that case, the bad Texas law had already been enjoined by the district court (correctly) applying strict scrutiny, but then the Fifth Circuit had dumped the injunction by using a rational basis standard instead. As Justice Sotomayor kept reminding, the only issue before the Supreme Court then was whether the Fifth Circuit used the wrong standard to decide whether the injunction should be kept in force.
JUSTICE KAVANAUGH: — to restore a preliminary injunction by this Court, we would have to find that you have a likelihood of success on how whatever level of scrutiny is applied, correct? [p.52]
No, the lawyer for FSC reminded justices. All they had to decide was that district court had not abused its discretion when it was interpreting the nascent record only just starting to get built while using the correct strict scrutiny standard. Future stages of the litigation would provide the opportunity for a finer-tuned result on the merits. But preliminary injunctions are for the district court’s best guess at that early stage that an injury is likely to occur if not stopped because, at this stage, we care more about not letting a potentially illegal harm accrue than being 100% correct that it’s illegal when it is too soon to know. And the only question on appeal after one has been issued—even at the Supreme Court—is whether that best guess did something conspicuously wrong, like applying the wrong legal standard or seriously misunderstanding the facts as the early record showed them.
Ultimately SCOTUS (somehow) concluded that the legal standard both lower courts used was wrong, deciding that the “correct” standard was the flimsier intermediate scrutiny, even though this pronouncement ignored precedent to make a new (and constitutionally dubious) rule out of thin air. And it then applied it in a way as to greenlight the law itself, even though such an analysis effectively jumped to the merits prematurely given that the district court itself had not even finished making its own final determination under any standard. The SCOTUS decision essentially produced a “game over” litigation result, abrogating a freedom everyone thought they had up to that point even while the litigation defending that freedom was still very much game on.
Meanwhile, in addition to upending settled First Amendment law, particularly with regard to age-gating, nothing that SCOTUS has done since then has done anything to dispel the concern that it understands the importance of injunctions to protect people from unlawful if not also unconstitutional incursions on their rights. Its habit of dissolving them via administrative stays on the shadow docket has had the effect of making everyone vulnerable to whatever abuse of power the government has been able to exercise and obviated the previous power of the courts to ensure that no unconstitutional injury could be incurred unless and until it is finally shown, via a developed record of facts and law, that none will result from the challenged action.
Furthermore, it did so once again in a law involving age verification and the First Amendment. The “good” news is that, at least this time, Justice Kavanaugh included a concurrence suggesting that Mississippi’s law would ultimately be found unconstitutional on the merits.
To be clear, NetChoice has, in my view, demonstrated that it is likely to succeed on the merits—namely, that enforcement of the Mississippi law would likely violate its members’ First Amendment rights under this Court’s precedents. See Moody v. NetChoice, LLC, 603 U. S. 707 (2024); Brown v. Entertainment Merchants Assn., 564 U. S. 786 (2011); cf. Free Speech Coalition, Inc. v. Paxton, 606 U. S. ___ (2025). Given those precedents, it is no surprise that the District Court in this case enjoined enforcement of the Mississippi law and that seven other Federal District Courts have likewise enjoined enforcement of similar state laws. See No. 1:24–cv–170 (SD Miss., June 18, 2025); NetChoice, LLC v. Yost, 716 F. Supp. 3d 539 (SD Ohio 2024); Computer & Communications Industry Assn. v. Paxton, 747 F. Supp. 3d 1011 (WD Tex. 2024); NetChoice, LLC v. Reyes, 748 F. Supp. 3d 1105 (Utah 2024); NetChoice, LLC v. Bonta, 770 F. Supp. 3d 1164 (ND Cal. 2025); NetChoice, LLC v. Griffin, No. 5:23–cv–5105 (WD Ark., Mar. 31, 2025); Computer & Communications Industry Assn. v. Uthmeier, ___ F. Supp. 3d ___, No. 4:24–cv–438 (ND Fla., June 3, 2025); NetChoice v. Carr, ___ F. Supp. 3d ___, No. 1:25–cv–2422 (ND Ga., June 26, 2025). In short, under this Court’s case law as it currently stands, the Mississippi law is likely unconstitutional.
And yet, by denying this emergency shadow docket petition to lift the stay of the well-earned injunction the district court had granted of this very likely unconstitutional law, SCOTUS, including Justice Kavanaugh, has allowed it to go into its unconstitutional effect.
This indifference to constitutional injury is itself unprecedented. SCOTUS has long since recognized it to be intolerable. In Elrod v. Burns it explicitly declared it as such in the First Amendment context:
The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.
But here we are, with that irreparable injury now being welcomed by a majority of SCOTUS justices, for whom the ancient judicial tool of preliminary injunctive relief is apparently no longer a thing, and because it is the result of yet another unsigned shadow docket maneuver we’ll still never know why.
The 2024 elections in India are widely regarded as the largest in history, with nearly a billion people eligible to cast a vote. Alongside the sheer human scale, there’s another aspect of the Indian elections that is surprising for its magnitude. This is the use of millions of deepfakes by Indian politicians in an attempt to sway voters, a topic on the most recent Ctrl-Alt-Speech podcast. As Mike noted during the discussions there, it’s a relatively benign kind of deepfake compared to some of the more nefarious uses that seek to deceive and trick people. But an article on the Rest of the World site points out that the use of deepfakes by Indian politicians is pushing ethical boundaries in other ways:
In January this year, M. Karunanidhi, the patriarch of politics in the southern state of Tamil Nadu, first appeared in an AI video at a conference for his party’s youth wing. In the clip, he wore the look for which he is best remembered: a luminous yellow scarf and oversized dark glasses. Even his head was tilted, just slightly to one side, to replicate a familiar stance from real life. Two days later, he made another appearance at the book launch of a colleague’s memoirs.
Karunanidhi died in 2018.
“The idea is to enthuse party cadres,” Salem Dharanidharan, a spokesperson for the Dravida Munnetra Kazhagam (DMK) — the party that Karunanidhi led till his death — told me. “It excites older voters among whom Kalaignar [“Man of Letters,” as Karunanidhi was popularly called] already has a following. It spreads his ideals among younger voters who have not seen enough of him. And it also has an entertainment factor — to recreate a popular leader who is dead.”
A Wired article on the topic of political deepfakes, discussed on the Ctrl-Alt-Speech podcast, mentions another Tamil Nadu politician who was resurrected using AI technology:
In the southern Indian state of Tamil Nadu, a company called IndiaSpeaks Research Lab contacted voters with calls from dead politician J. Jayalalithaa, endorsing a candidate, and deployed 250,000 personalized AI calls in the voice of a former chief minister. (They had permission from Jayalalithaa’s party, but not from her family.)
That raises the issue of who is able to approve the use of audio and video deepfakes of dead people. In India, it seems that some political parties have no qualms about deploying the technology, regardless of what the politician’s family might think. Should the dead have rights here, perhaps laid down in their wills? If not, who should be in control of their post-death activities? As more political parties turn to deepfakes of the dead for campaigning and other purposes, these are questions that will be asked more often, and which need to be answered.
With the Supreme Court poised to rip away a constitutional right that’s been the law of the land for nearly half a century by overturning Roe v. Wade, it’s time for the gloves to come off in the encryption debate. For a quarter of a century, it has been an unspoken prerequisite for “serious” discussion that American laws and law enforcement must be given a default presumption of legitimacy, respect, and deference. That was always bullshit, the end of Roe confirms it, andI’m not playing that game anymore.
Weirdly, there are a lot of similarities between encryption and abortion. Encryption is a standard cybersecurity measure, just like abortion is a standard medical procedure. Encryption is just one component of a comprehensive data privacy and security program, just like abortion is just one component of reproductive health care. They both save lives. They both support human dignity. They’re both deeply bound up with the right to autonomy privacy, no matter what a hard-right Supreme Court says. (Ironically, the way things are going, the Supreme Court’s position will soon be that we have more privacy rights in our phones than in our own bodies.) And finally, both encryption and abortion keep being framed as something “controversial” rather than something that you and I have every damn right to – something that should be ubiquitously available without encumbrance.
It would be nice if both of these things were settled questions, but as we’ve seen in both cases, the opponents of each will never let them be. The opponents of bodily autonomy are about to score a victory they’ve been working towards for decades. The immediate result will be total bans and criminalization of abortion in large swaths of the United States. We absolutely cannot afford for the opponents of encryption to prevail as well, whether in the U.S., the EU, its member states, or anywhere else.
The only reason there’s still any “debate” over encryption is because law enforcement refuses to let it drop. For over a quarter of a century, they’ve constantly insisted on the primacy of their interests. They demand to be centered in every discussion about encryption. They frame encryption as a danger to public safety and position themselves as having a monopoly on protecting public safety. They’ve insisted that all other considerations – cybersecurity, privacy, free expression, personal safety – must be made subordinate to their priorities. They expect everyone else to make trade-offs in the name of their interests but refuse to make trade-offs themselves. Nothing trumps the investigation of crime.
Why should law enforcement’s interests outweigh everything else? Because they’re “the good guys.” In debates about whether law enforcement should get “exceptional access” (i.e., a backdoor) to our encrypted communications and files, we pretend that American (and other Western democracies’) law enforcement are “the good guys,” positioned in contrast to “the bad guys”: criminals, hackers, foreign adversaries. When encryption advocates talk about how encryption is vital for protecting people from the threat posed by abusive, oppressive governments, we engage in the polite fiction that we’re talking about “that other country, over there.” It’s China, or Russia, or Ethiopia, not the U.S. If we talk about the threats posed by U.S.-based law enforcement at all, it’s the “a few bad apples” framing: we hypothesize about the occasional rogue cop who’d abuse an encryption backdoor in order to steal money or stalk his ex-wife.
We don’t confront the truth: that law enforcement in the U.S. is rife with institutional rot. Law enforcement does not have a monopoly on protecting public safety. In fact, they’re often its biggest threat. When encryption advocates play along with framing law enforcement as “the good guys,” we’re agreeing to avert our eyes from the fact that one-third of all Americans killed by strangers are killed by police, the fact that police kill three Americans a day, and the staggering rates of domestic violence by cops. When actual horrific crimes get reported to them – the very crimes they say they need encryption backdoors to investigate – they turn a blind eye and slander the victims. Law enforcement is a scourge on Americans’ personal safety. The same is true of our privacy as well: as a brand-new report from Georgetown underscores, law enforcement agencies don’t hesitate to flout the law with impunity in the pursuit of their perfect surveillance state.
U.S. law enforcement officers and agencies have shown us with their own actions that they don’t deserve any deference whatsoever in discussions about encryption policy. They aren’t entitled to any presumption of legitimacy. They are just another one of the threats that encryption protects people from. With the demise of Roe, we can no longer ignore that the same is also true of American laws.
Of course, this has always been the case. “Crimes” are whatever a group of lawmakers at some point in time decide they are, and “criminals” are whoever law enforcement selectively decides to enforce those laws against: Black and brown people, undocumented immigrants, homeless people, sex workers, parents of trans kids, drug users. Now that we’re rolling back the clock on social progress by half a century, “criminals” once again will include people who have abortions (which, don’t you ever forget, does not just mean cisgender women) and those who provide them. Already, some deeply conservative states are plotting for using contraception to make you a criminal again too. People in consensual same-sex relationships or interracial marriages may be next. All of these “crimes” are what should come to your mind whenever you hear somebody tout “fighting crime” as a reason to outlaw strong encryption.
If you’re an encryption advocate in the United States, it’s time to stop pretending that encryption’s protection against oppressive governments is only about Uighurs in Xinjiang or gay people in Uganda. Americans also need strong encryption to protect ourselves from our own domestic governments and their abominable laws. The impending end of Roe has laid that bare. The threat is coming from inside the house. “China” was really a euphemism for “Alabama” this whole time. Encryption advocates in the U.S. just usually aren’t willing to say so.
Why not? Because we’ve internalized that unless we treat American laws (and the people who enforce them) as unimpeachably legitimate and supreme, we won’t be treated as “serious.” We’ll be derided as “zealots” and “absolutists” who aren’t willing to have a “mature conversation” about “finding a balance” and “working together” to find a “middle-ground solution” on encryption. Our views and demands will be dismissed out of hand. We won’t get invited anymore to events put on by universities and foundations. We won’t get to talk in endless circles while sitting in fancy conference rooms far away from the jailhouses where Purvi Patel and Lizelle Herrera were held.
The loss of Roe will unavoidably usher in a new phase of the encryption debate in the U.S., because Roe has been the law of the land throughout the entire time that strong encryption has been generally available. Roe was decided in 1973, and the landmark Diffie/Hellman paper “New Directions in Cryptography” didn’t come out until 1976. In the decades since, strong encryption went from a niche concern of the military and banks to being in widespread use by average consumers – while, simultaneously, the constitutional right to abortion was slowly and systematically chipped away. Nevertheless, Roe still stood. In all the years since 1976, encryption policy discussions about “balancing” privacy rights and criminal enforcement have never had to seriously grapple with what it means for abortion to be a crime rather than a right. That’s about to change.
Encryption advocates: It’s time to stop playing along with U.S. law enforcement’s poisonous expectation to exempt them from the threat model. The next time you’re at yet another fruitless roundtable event to “debate” encryption and some guy from the FBI complains that law enforcement must always be the star of the show, ask him to defend his position now that abortion will be against the law across much of the country. If he whines that that’s states’ laws, not federal, ask him what the FBI is going to do once a tide of investigators from those states start asking the FBI for help unlocking the phones of people being prosecuted for seeking, having, or performing an abortion.
Tech companies: Do you want to help put your users behind bars by handing over the data you hold about them in response to legal demands by law enforcement? Do you not really care if they go to prison, but do care about the bad PR you’ll get if the public finds out about it? Then start planning now for what you’re going to do when – not if – those demands start coming in. Data minimization and end-to-end-encryption are more important than ever. And start worrying about internal access controls and insider threats, too: don’t assume that none of your employees would ever dream of quietly digging through users’ data looking for people they could dox to the police in anti-abortion jurisdictions. Protecting your users is already so hard, and it’s going to get a lot harder. Update your threat models.
Lawmakers: You can no longer be both pro-choice and anti-encryption. The treasure troves of Americans’ digital data are about to be weaponized against us by law enforcement to imprison people for having abortions, stillbirths, and miscarriages. If you believe that Americans are entitled to bodily autonomy and decisional privacy, if you believe that abortion is a right and not a crime, then I don’t want to hear you advocate ever again for giving law enforcement the ability to read everyone’s communications and unlock anyone’s phone. Whether or not you manage to codify Roe or to crack down on data brokers that sell information about abortion clinic visitors, you need to stop talking out of both sides of your mouth by claiming you care about privacy and abortion rights while also voting for bills like the EARN IT Act that would weaken encryption. The midterms are coming, and we are watching.
As I wrote recently for Brookings, encryption protects our privacy where the law falls short. Once Roe is overturned, the law will fall short for tens of millions of people. We no longer have the luxury of indulging in American exceptionalism. The enforcement of American laws isn’t a justification for weakening encryption. It’s an urgent argument in favor of strengthening it.
No less than the highest court in the land said the off-campus speech of students is subject to the First Amendment, not the whims of school administrators who feel ways about online stuff. A cheerleader expressing her displeasure with school related activities posted a litany of f-bomb-laden complaints to Instagram, resulting in her being summarily dismissed from the cheer team. The Supreme Court said “fuck cheer” is protected speech, no matter how school administrators felt about it.
Students’ constitutional rights don’t disappear just because they’re students. This point has been driven home several times by courts, most famously by the Supreme Court’s 1969 Tinker decision, which stated:
It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.
And yet schools continue to argue otherwise. But these arguments are unavailing, as this recent Pennsylvania state court decision [PDF] points out. Penncrest High School expelled G.S. (a minor referred to only by their initials) for posting a band’s lyrics to Snapchat. Despite the fact G.S. did this off-campus during non-school hours, the school felt compelled to punish him for it.
Here’s how the school’s stupidity began, as recounted by the Pennsylvania court.
On April 1, 2018, G.S. used his personal smartphone to post the following on Snapchat, where he had 60 to 65 followers, including 4 or 5 other School District students:
Everyone, I despise everyone! Fuck you, eat shit, Blackout, the world is a graveyard! All of you, I will fucking kill off all of you! This is me, this is my, snap!
As attuned as schools are to the neverending threat of shootings, it’s understandable the school might have been concerned by this post, which — taken at face value — appears to threaten fellow students with death. Context matters, but all context was apparently ignored by the school.
Though G.S. did not tag his post as such, the words it contained were copied from “Snap,” a song by the death metal band Spite. The only alteration G.S. made in his post to the excerpted lyrics was to add several exclamation points. G.S. did not direct this post toward any particular person or group and did not tag any other Snapchat users in it, nor did he put up this post at a time when he was involved in school-related activities. Rather, he posted while at an Easter Sunday celebration with his extended family in New Jersey.
Other students noticed the post and tagged in the school student body while reposting screenshots of the Snapchat message. Then parents got involved, notifying the Pennsylvania State Police, visiting the barracks to talk directly with troopers as well as sending emails to PSP officers. Not long after that, G.S. was visited by state troopers. His parents weren’t home so the troopers left and approached the assistant district attorney, seeking permission to arrest G.S. for issuing terrorist threats. Troopers called school administrators and informed them they were looking to bring charges against G.S.
Finally, G.S.’s parents were contacted and informed of the criminal proceedings. G.S. and his parents voluntarily went to the State Police barracks so G.S. could be questioned. G.S. admitted to making the post but told troopers it was just a quote from a band and not intended to threaten or harm anyone. None of that mattered. The DA told troopers to move forward with criminal charges. G.S. was arrested and taken to a juvenile detention center.
Meanwhile, school officials continued to receive reports about the post. A district-wide message was sent out by the school, notifying parents that law enforcement was investigating a threat by a student.
This had an immediate effect. Despite being short on facts — namely, the “threat” in G.S.’s post being copied from a band’s song lyrics — the missive from the school resulted in roughly a quarter of the student body being absent the following day. Those who did show up appeared “anxious and upset.”
Outside of school, G.S. underwent a court-ordered psychological evaluation. That evaluation cleared G.S.
His [Snapchat post] is a duplication of emotionally charged lyrics found in a . . . song that, while disturbing in content and audio, represent a low level of threat to the community. Specifically, [G.S.] does not have the resources, motivation, or intent to carry out the threat. […] His level of risk for future violent behavior is [l]ow.
G.S. was released and placed on house arrest. School administrators sent a letter to his parents informing them he would be suspended for ten days. Another letter followed, extending the suspension for three more days and stating criminal charges were being sought. Six days later, the school informed G.S.’s parents the district was seeking to expel him. Those proceedings proceeded, ignoring the facts that the post was composed of song lyrics, was not posted to threaten anyone, and G.S being cleared by a court-ordered psychiatrist.
The minor has the First Amendment and Pennsylvania’s constitution on his side. The school has measurable disruption and potential criminal charges on its side. The court comes down on the side of the student.
First of all, it points out, the school is no longer welcome to argue the Snapchat post was a “true threat.” It abandoned that argument during the expulsion proceedings.
Initially, we note that much of the School District’s argumentation is based upon its position that G.S.’ post constituted a true threat, as well as that it was both legally proper and factually justified for it to expel G.S. on that basis. […] These positions, however, misapprehend the actual reasoning employed by the School District’s hearing officer in his August 13, 2018 report. As we have already mentioned, the hearing officer declined the opportunity to decide whether the offending post was a true threat; indeed, the hearing officer remarked that “it is not necessary in this matter to make [that] determination[.]” Instead, the hearing officer reasoned that the charges against G.S. should be and G.S. should be expelled, as well as that the School District could do so without violating G.S.’ free speech rights, because his post “materially disrupted class work, involved substantial disorder[,] and invaded the rights of others.”
So, it’s down to “substantial disruption” versus the free speech rights of students who aren’t on campus or engaged in school activities. And on that prong of free speech examination, the school has no case.
In this instance, G.S. did not explicitly target specific Penncrest students, let alone the broader School District community, and he posted at a time when he was neither at Penncrest nor engaged in school-related activities. Thus, G.S.’ post was unambiguously off-campus speech, regarding which the School District’s disciplinary reach was sharply circumscribed by both the First Amendment and Article I, Section 7. Given this, and no matter how objectionable the content of G.S.’ post may have been, it is evident that the School District markedly failed to clear the extremely high bar set by these constitutional provisions and, thus, could not punish him for the disruptions that occurred at Penncrest.
The school’s arguments are bad, the court said. The school wants speech judged by its reaction, rather than its intent. That’s not the way the law works.
Thus, the School District would have us evaluate the constitutional sanctity of disciplining students for disruptions caused by off-campus speech through an analytical framework that would assign great value to the societal response to such speech, but disregard the context in which it was uttered, as well as the intent of the speaker. We decline to accept the School District’s deeply problematic suggestion. Were we to do otherwise, the result would be to imbue public schools with the power to discipline their students for publicly expressing interests or sentiments that school administrators, faculty, or members of polite society considered execrable or simply did not understand, regardless of how, when, where, or why that expressive conduct occurred.
Public schools would consequently become de facto full-time censors, preventing children from making their own decisions about what aspects of popular culture are worthy of consumption or what beliefs should be held, and interfering with parental authority, through a constant potential for punishment that would hang over students like the Sword of Damocles. Such an expansion of governmental authority would do great harm to the expressive rights of individuals still “in the formative years…”
The expulsion and suspension are reversed. The First Amendment prevails and G.S.’s record will be stripped of the district’s unconstitutional add-ons. Even minors have free speech rights and the school should have known this, given there’s plenty of precedent on the books at all levels of the judicial system affirming these rights. The school fully earned this loss. Hopefully, it will accept this ruling and stop wasting the public’s money attempting to undermine free speech rights.
As courts seemingly have to remind school administrators (and their partners in unconstitutional crime, school police officers), students — even minors — still have constitutional rights. The First and Fourth Amendments are the most frequently violated, despite there being no lack of precedent upholding students’ rights.
This latest rebuke of law enforcement overreach comes via the Colorado Court of Appeals (and via FourthAmendment.com). In this case, a Denver, Colorado student had his backpack warrantlessly searched by school security officers. This search resulted in the discovery of marijuana and paraphernalia, which led to juvenile charges against the minor, referred to in the opinion [PDF] as “C.C-S.”
The reason the search was unconstitutional has a lot to do with how the school officers got it into their heads that C.C-S. should be detained and searched. The state of Colorado maintains an anonymous tip line called “Safe2Tell” which allows students and faculty to report suspicious activity or behavior to school officials.
The Safe2Tell tip that initiated this chain of unconstitutional events was old news by the time it was forwarded to DPS (Denver Public Schools) officials and, because of its origin, could not be corroborated.
A school security officer employed by Denver Public Schools (DPS) received a report that C.C-S., a student at a DPS high school, had been seen in a Snapchat video shooting a firearm out of a car window.
[…]
By the time the Snapchat video showing C.C-S. was reported to Safe2Tell on February 25, 2018, it was about one month old. At that point, no one was able to review the footage because videos posted on Snapchat automatically disappear from the platform after twenty-four hours, unless they are saved.
Nevertheless, school officials decided to act, relying on little more than this and another unsubstantiated (and unrelated) allegation.
Although unable to review the Snapchat video, the dean of C.C-S.’s school told the school security officer that C.C-S. had a history of “bringing things to school that he shouldn’t, such as drugs and things like that.”
“Drugs and things.” Leaves a lot open to the imagination, which is what was exercised by school security officers, who took two uncorroborated reports and combined them into a search unsupported by probable cause.
At that point, the school security officer decided to search C.C-S., based on the Safe2Tell firearm tip, the dean’s comment, and the security officer’s policy of searching every student and their backpack when he received a Safe2Tell report that the student had either drugs or weapons. Once C.C-S. arrived at school, he was taken to an office for questioning by the school security officer, as well as a campus security officer, who was also employed by DPS but was stationed at C.C-S.’s school. With the door closed, the DPS officers told C.C-S. about the information they had received from the Safe2Tell tip and told him they were going to search his backpack.
C.C-S. refused to consent to a search and, after further discussion, attempted to leave the office. The DPS officers would not allow him to leave, instead reiterating that they were going to search his backpack. After the campus security officer asked C.C-S. whether he was refusing to allow the search because he had drugs in his backpack, C.C-S. confessed that he had drugs in his backpack and handed it over to the officers to be searched.
That’s not consent. That’s the implication that a search is going to take place, with or without cooperation. Keeping someone in a room and refusing to let them leave pretty much takes consent out of the equation. That only makes things worse for the school officers and the case they thought they had built against C.C-S.
Rights are rights, and while they are limited on school campuses, they are not nonexistent. The officers needed at least reasonable suspicion to approach and search C.C-S. and they didn’t even have that.
[W]e conclude that the Safe2Tell tip was insufficient to provide reasonable suspicion. We reach this conclusion for four reasons. First, as noted above, the tip was anonymous. Second, the information provided in the tip was stale. Third, because it was anonymous and stale, the limited information in the Safe2Tell tip did not provide reasonable suspicion that C.C-S. had committed or was about to commit a crime. And, fourth, the information about C.C-S.’s past behavior at school did not corroborate the Safe2Tell weapons tip.
Information about someone seen on SnapChat a month ago isn’t a good tip, or an actionable tip, or even a somewhat fresh tip. It may prompt some additional “keeping an eye on” by administrators but it cannot justify a seizure and a search, even on school grounds, and even with the district’s apparently unconstitutional policy of searching every student that has been reported via a Safe2Tell tip.
The school dean’s “tip” was no better and created no additional reasonable suspicion. The tip mentioned drugs, not weapons, and there was no information given that implied or stated the student had brought weapons onto campus before.
The state argued that this was asking too much from the Safe2Tell program, which guarantees students’ anonymity. Au contraire, says the court. This program may be useful and aid in public safety efforts, but it cannot summarily revoke students’ rights for these reasons or by its mere existence.
While we recognize the importance of Safe2Tell’s role in preventing school violence, investigations based on Safe2Tell tips by DPS security officers and other school officials must occur within the bounds of students’ Fourth Amendment rights.
As for the supposed “consent” to a search, the court says there was no consent.
[W]e conclude that the uncorroborated Safe2Tell tip did not justify detaining C.C-S. Because he was unreasonably detained, we may not rely on his admissions made during that unlawful detention to uphold the search of his backpack.
The state also argued that the exclusionary rule does not apply to juvenile cases or school security officers. Wrong again, says the court. The rule applies to government employees and their actions, which encompasses school administrators and school security officers.
We conclude that applying the exclusionary rule in school searches conducted by DPS security officers would deter Fourth Amendment violations. Those security officers perform quasi-law enforcement functions, inasmuch as the evidence they collect is often used in juvenile delinquency adjudications such as this one.
[…]
To apply the Fourth Amendment’s exclusionary rule to school searches is therefore a logical extension of Supreme Court precedent. Its application here is especially appropriate since school security officers, whether acting in concert with the police or not, are governmental actors.
There goes the evidence obtained during the illegal search… which would be all of the evidence. Without it, all the government has is C.C-S., who may or may not have been the person seen by some student in some Snapchat video officers never viewed and which had vanished from the service long before the tip was sent in. The state has nothing to prosecute with. But maybe it has at least learned it can’t treat students like detainees following extraordinary rendition. Students have rights and the government — at least in this case — gains nothing by ignoring them.
Disney, of course, has quite the reputation as a copyright maximalist. It has been accused of being the leading company in always pushing for more draconian copyright laws. And then, of course, there’s the infamous Mickey Mouse curve, first designated a decade ago by Tom Bell, highlighting how copyright term extensions seemed to always happen just as Mickey Mouse was set to go into the public domain (though, hopefully that’s about to end):
Whether accurate or not, Disney is synonymous with maximizing copyright law, which the company and its lobbyists always justify with bullshit claims of how they do it “for the artist.”
Except that it appears that Disney is not paying artists. While the details are a bit fuzzy, yesterday the Science Fiction & Fantasy Writers of America (SFWA) and famed author Alan Dean Foster announced that Disney was no longer paying him royalties for the various Star Wars books he wrote (including the novelization of the very first film back in 1976), along with his novelizations of the Aliens movies. He claims he’d always received royalties before, but they suddenly disappeared.
Foster wrote a letter (amusingly addressed to “Mickey”) in which he lays out his side of the argument, more or less saying that as Disney has gobbled up various other companies and rights, it just stopped paying royalties:
When you purchased Lucasfilm you acquired the rights to some books I wrote. STAR WARS, the novelization of the very first film. SPLINTER OF THE MIND?S EYE, the first sequel novel. You owe me royalties on these books. You stopped paying them.
When you purchased 20th Century Fox, you eventually acquired the rights to other books I had written. The novelizations of ALIEN, ALIENS, and ALIEN 3. You?ve never paid royalties on any of these, or even issued royalty statements for them.
All these books are all still very much in print. They still earn money. For you. When one company buys another, they acquire its liabilities as well as its assets. You?re certainly reaping the benefits of the assets. I?d very much like my miniscule (though it?s not small to me) share.
You want me to sign an NDA (Non-disclosure agreement) before even talking. I?ve signed a lot of NDAs in my 50-year career. Never once did anyone ever ask me to sign one prior to negotiations. For the obvious reason that once you sign, you can no longer talk about the matter at hand. Every one of my representatives in this matter, with many, many decades of experience in such business, echo my bewilderment.
You continue to ignore requests from my agents. You continue to ignore queries from SFWA, the Science Fiction and Fantasy Writers of America. You continue to ignore my legal representatives. I know this is what gargantuan corporations often do. Ignore requests and inquiries hoping the petitioner will simply go away. Or possibly die. But I?m still here, and I am still entitled to what you owe me. Including not to be ignored, just because I?m only one lone writer. How many other writers and artists out there are you similarly ignoring?
In a video press conference, Foster and SFWA (while admitting that no one on the call were lawyers) said that Disney is claiming that it purchased “the rights but not the obligations” to these works. That’s… weird. And I wish there was a lawyer on the call. Because that doesn’t make much sense.
As SFWA notes, if it is possible to purchase rights without the obligations, then any company could just do a sham sale of the rights without the obligations and get out of paying any royalties ever.
Of course, the details here matter, and we only have one side (and not their lawyers). There may be something very weird in these contracts (and this is, basically, a contract dispute, not a copyright one). But just at a fundamental facts of the situation look disgusting on Disney’s part. If you owe royalties, you pay the royalties. Considering how aggressive Disney is with its own copyrights, you’d think its lawyers would understand that.
There are a great many interesting arguments we tend to have over both the purpose of copyright law and how effectively its current application aligns with that purpose. Still, we are on fairly solid legal footing when we state that the main thrust of copyright was supposed to be to drive more and better content to the public. Much of the disagreement we tend to have with naysayers revolves around whether ever expanding rights coupled with protectionist attitudes truly results in more and better content for the public. We, to a large extent, say the current copyright bargain is horribly one-sided against the public interest. Detractors say, essentially, “nuh-uh!”.
But if one were to distill the problems with the current state of copyright to their most basic forms, you would get No One Lives Forever. The classic PC shooter/spy game was released way back in 2000, times of antiquity in the PC gaming space. It was a critically acclaimed hit, mixing Deus Ex style shooter missions, spycraft, and an aesthetic style built on 1960s classic spy films. And, as RockPaperShotgun reminds us, No One Lives Forevercelebrated its 20th birthday this November.
If you remember the game fondly, or perhaps if you never played it and are curious as to why there’s so much love for the game, you might be thinking about going and getting a copy for yourself to play. Well, too bad. You can’t.
FPS spy romp No One Lives Forever turns 20 today but alas Cate Archer is still confined to her room, unable to come out and play. The secret agent shooter has been tied up in legal gridlock for years. You’ll not find it for sale online aside from second-hand, but that hasn’t stopped RPS singing its praises all this time. A remaster still seems unlikely, but Nightdive Studios say they aren’t done trying to make it happen.
Legal gridlock is being extremely kind. Why you cannot buy this game is one of the most frustrating stories in intellectual property. We discussed much of this back in 2015. Nightdive Studios is a company that buys up the rights to older video games, updates and/or remasters them for modern gaming hardware, and then rereleases them. And we’re talking about a professional operation that has managed to rerelease games like Doom 64, 7th Guest, and System Shock. In other words, these guys are legit and they know what they’re doing.
And they really, really wanted to give No One Lives Forever the treatment. There was just one problem: nobody seems to know who holds the copyright for the game, but everyone independently has told Nightdive that they’ll sue if they make the game. Warner Bros., Activision, and 20th Centry Fox all might own the copyright to the game, except that the paperwork for how the rights all shake out was contrived in a time before such records were digitized. So, someone owns the rights to this game. And Nightdive very much wants to work out an arrangement with whoever that someone is. But none of the three potential owners are willing to go hunt down the paperwork so such a deal could be worked out.
You can get a sense of how each is communicating with Nightdive from our original post on the subject.
“So we went back to Activision and, [after] numerous correspondence going back and forth, they replied that they thought they might have some rights, but that any records predated digital storage. So we’re talking about a contract in a box someplace.” Kuperman laughed. “The image I get is the end of Indiana Jones… somewhere in a box, maybe in the bowels of Activision, maybe it was shipped off to Iron Mountain or somewhere. And they confessed, they didn’t have [their] hands on it. And they weren’t sure that they even had any of those rights.”
And yet Nightdive was also told by all three entities, independently mind you, that they might own some rights and would go find out if Nightdive tried to rerelease the game to see if they could sue over it. The end result is a game that can’t be released legitimately to the public over rights three companies insist are important enough to sue over, but not so important that they should know if they even have those rights to begin with.
Which brings us back to the RPS post, five years later on the 20th birthday of No One Lives Forever, where we find out that essentially zero progress has been made.
As one of the best FPS games on PC, it seems plenty worthy of a remaster or re-release, but efforts on that front have died in the water over the past decade or more. Hit any one of those quoted links to get the evolving story, but the short version is this: Nightdive Studios, who want to modernise No One Lives Forever, don’t own the rights to it. More than one company might have legal claim to it, but none of them are terribly motivated to unearth stacks of paper contracts literally hidden in basements. They’re just sure they don’t want anyone else making money off it without them. So Cate’s all tied up in the super villain’s lair without a Deus Ex Machina to save her.
On that front, Nightdive recently told The Gamer that they aren’t done trying to make it happen. “It is a process that we’re continuing,” said director of business development Larry Kuperman. “We continue on with our mission to unearth and bring back these classic games.”
And so the public is flatly denied legitimate access to content that is a piece of our culture over copyrights nobody can say for sure if they have. I can’t claim to crawl into the founding fathers’ heads to say precisely how they wanted copyright to work, but it sure as shit can’t be like this.
Hong Kong was handed back to China in 1997 with the understanding the Chinese government would not strip away the rights granted to Hong Kong residents prior to the handover. The Chinese government has no intention of honoring that agreement, which has prompted months of protests.
The Hong Kong government has consummated its acquiescence to the Chinese government with the adoption of a harsh law that directly targets dissent and protest under the guise of securing the nation. Hong Kong residents weren’t informed about the contents of the new law until after it was passed and adopted. The BBC runs down the key aspects of the new law — none of which appear to respect the rights supposedly granted to Hong Kong residents.
Crimes of secession, subversion, terrorism and collusion with foreign forces are punishable by a minimum sentence of three years, with the maximum being life
Inciting hatred of China’s central government and Hong Kong’s regional government are now offences under Article 29
Damaging public transport facilities can be considered terrorism
These are all things the Chinese government claims must be implemented to secure the nation. And these are all things that conveniently allow the government to imprison Hong Kong residents. It also allows them to target dissidents and opponents abroad, thanks to the government granting itself extraterritorial reach.
This Law shall apply to offences under this Law committed against the Hong Kong Special Administrative Region from outside the Region by a person who is not a permanent resident of the Region.
The law also says residents found guilty of these crimes cannot run for public office. This seems unnecessary, especially as many vocal anti-government activists have either chosen to go silent or leave the country completely.
The court process for adjudicating these cases has been streamlined to allow the Chinese government to imprison as many protesters and activists as possible. The chief executive of Hong Kong — who has already gone on record as supportive of the “long overdue” law — can appoint judges to oversee these trials. The Chinese government retains the option to take over prosecutions in cases where it feels local prosecutors just aren’t trying hard enough. And decisions made by the newly-formed “national security commission” cannot be challenged in court.
Reactions have been immediate. Pro-democracy books have been pulled from libraries by the Hong Kong government in order to review them for violations of the new law. And protesters are now carrying blank signs, since the law makes the existence of any anti-Chinese government words a potential violation of the new law, possibly putting protesters in line for life in prison.
No one seems to be immune from the new law. The Hong Kong police apparently visited a restaurant to warn it of a violation of the new law. It responded by covering its menu and windows with blank Post It notes.
A girl uses a blank piece of paper yesterday as a protest sign, as she wasn?t sure what constitutes breaking the NatSec Law.
Today, eateries are removing posters and replacing them with blank memo notes after HKPF visited a restaurant in Shau Kei Wan warning of a NSL violation. pic.twitter.com/3TLyfI9JIx
After months of battling a rebellious region, the Chinese government has placed Hong Kong firmly under its control. There will be no more “one country, two systems.” The only system the Chinese government is willing to back is its own. With countries like Australia and the UK opening their doors to Hong Kong citizens wishing to flee, the government may not have nearly as many people to place under its jackboot. But those who choose to stay run the risk of being jailed for years for complaining about a government willing to jail people for complaining.
