California crazy meets European crazy in the Mugshots.com case

Episode 218 of the Cyberlaw Podcast

In this episode, Markham Erickson highlights the Mugshots.com prosecution. The site had a loathsome business model, publishing mugshots for free and charging hundreds of bucks to people who wanted the record of their arrests taken down. Now the owners are being prosecuted in a case that combines the worst of European crazy ("surely criminals have a right to be forgotten") and California crazy ("profits are being earned here – surely that calls for a criminal investigation"). Markham explains why this may be a hard case for California to win – and then joins me in expressing schadenfreude for the owners, whose mugshots are even now spread all across the internet.

Meanwhile, the ZTE mess gets messier as Congress moves to block President Trump's proposed sanctions relief. Democrats are joining national security Republicans to move legislation on the topic. Who says President Trump is the divider-in-chief?

Michael Vatis digs into the FBI's latest high-profile problem: it grossly overstated the number of encrypted phones it encountered last year. Was it a mistake or a misrepresentation? Our panel leans toward mistake.

Michael and I also criticize President Trump's decision to dump government security for his phone. Michael reminds us of the President's scathing treatment of Hillary Clinton's insecure email server and asks why an insecure cell phone is different.

And in a new feature that we still haven't made up our mind about, we do a lightning round of stories we couldn't get to:

• GDPR has arrived at last, and typically, the European Parliament isn't ready.
• Suspected CIA leaker Joshua Schulte was busted for kiddie porn but should have been arrested for stone stupidity.
• Kaspersky sets up shop in Switzerland; will that save the business? I'm skeptical.
• Ecuador's budget for protecting Assange ran into the millions of dollars, and it looks as though he may be on the street any minute now. A bad week for hackers and leakers. 😉
• Germany's misbegotten effort to tame hate on Facebook is going to end up censoring what Americans can read. When will Congress act to preserve the first amendment from other governments?
• China's bragging that its social credit system has blocked people from 11 million flights already; when will that system be expanded to everyone in the hacked OPM files?
• In a declassified report, a federal commission treats EMP attacks as a serious threat, not the stuff of an Alex Jones rant, as elite opinion seems to think.
• There's a circuit split regarding border cell phone searches.
• The NTSB has issued a gobsmacking preliminary report on the fatal crash involving Uber's autonomous vehicle.

Download the 218th Episode (mp3).

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Comments

[bernard11]

Michael reminds us of the President's scathing treatment of Hillary Clinton's insecure email server and asks why an insecure cell phone is different.

I'm sure the Trump suckers have an answer. Which will make no sense.

[Longtobefree]

Well, my first guess would be that what's-her-name was trying to hide all of her criminal actions, and everything Trump does on a phone is public record.

[bernard11]

Yeah. I'm sure she was emailing about murdering Vince Foster or Seth Rich. Ask Alex Jones about it. I'm sure he knows.

Everything Trump does is public record? Really?

All his calls are recorded and available to the public? Where do I get the transcripts? And by the way, I don't think it's a very good idea for all the President's calls to be public record. Do you?

[BillyG]

So you're saying it makes no sense that Trump is using a Government Phone?

[bernard11]

Pay attention, Billy.

He is using an insecure phone.

[BillyG]

Insecure.... Reeeeeally.....? What's insecure about a government issued phone designed specifically for the president? It's not like he's using something he bought commercially without telling anyone.

[bernard11]

Please read the news.

It's an insecure phone. Yes. Reeeeeeally.

See here and here for more information.

Are you of the Bellmore School that holds that Trump Can Do No Wrong, and hails his genius daily?

[Frog Legs]

Trump's great because he stands opposed to both the social justice loonies and the cult of muh free markets.

[nonzenze]

I'm pretty sure the 'loathsome business model' amounts to blackmail.

As Eugene has often puzzled over it, it's legal for you to ask me for money, and it's legal for you to publish evidence of my extramarital affair, but threatening to publish unless I pay you can be made criminal by the legislature.

[Dilan Esper]

This may be the world champion dumb position of Baker.

You don't have to be a privacy zealot to oppose extortion as a business model.

[TwelveInchPianist]

IIUC under California law requires that someone threaten to expose a "secret". Is a public arrest record a secret? Especially since the very fact is being published on the aforementioned website? IDK, but it doesn't seem like a slam dunk.

[Dilan Esper]

Whether or not it technology violates California law, the desire to prosecute this isn't privacy zealotry run amok, as Baker says.

[Dilan Esper]

technically i meant

[Frog Legs]

If you look at the statute, there's no way this is extortion. It's not "exposing a secret" to republish information of public record. It's not a secret, and you can't expose what's already in plain sight.

[nonzenze]

So if the LA Times went to Harvey Weinstein and said "We'll bury the coverage of your arrest on page 10 if you pay us $1M", that's not extortion because the arrest is not a 'secret'?

That can't possibly be right.

[ReaderY]

I think the difficulty with Professor Baker's position on the mugshots.com case is that what they are doing looks an awful lot like the traditional crime of blackmail, and blackmail is a classic exception to the First Amendment.

Given this, I think Professor Baker needs to give a reasoned case why the First Amendment protects what they are doing.

Perhaps Professor Baker thinks the blackmail exception shouldn't exist and is itself crazy. Perhaps Professor Baker considers the blackmail exception to be vary narrow. Perhaps he thinks putting something in an office file for inspection of someone specifically asks for it "publicizes" it for constitutional purposes so posting it on the internet doesn't make it any more public so far is the First Amendment is concerned.

Maybe so. But it seems to me, that some who takes the negative of all three of these propositions - the blackmail exception is appropriate, should be construed broadly, and in particular posting something on the internet meaningfully publicizes it even if already more narrowly available - all these positions may be wrong and ultimately not prevail. But they don't strike me as crazy.

[jslinner]

California crazy ("profits are being earned here ? surely that calls for a criminal investigation"

Stewart Baker crazy ("I like to make stuff up.")

[ReaderY]

I recognize that a tendency to casually call people one disagrees with "crazy" as a way to avoid having to reason with them is currently favored by both the left wing of the Supreme Court and the current occupant of the White House.

But I continue to strongly disagree with the practice. It profoundly undermines democracy. It makes the people most blind to what others believe or have to say the most powerful. When one has power, it creates an excuse to ignore or run roughshod over the voice of those who don't, It is a tactic of tyranny, not justice or right.

Even when one is right, the people who are wrong usually have some reason for their position, and are rarely crazy. The civilized person tries to understand what they have to say and construct a reasoned argument against them. Simply those one disagrees with as crazy tends to dehumanize them. It justifies, in ones mind, running roughshod over their rights.