Keeping the internet anonymous and private!

Case: Netchoice v Wilson, 3:26-cv-00543, (D.S.C.)

Netchoice's litigation page: Netchoice v Wilson

Netchoice filed the motion for preliminary injunction on March 9. It isn't available on the docket in RECAP yet (and I'm over my threshold for PACER fees that will get refunded for the quarter, or else I'd put it there!) but it is available on Netchoice's litigation page: Motion for Preliminary Injunction. They haven't included the declarations, but here's Dreamwidth's declaration as filed, authored by yours truly. Because of the wild incoherence of so many of the provisions of this law, many of which were new because a lot of states have switched to using different model legislation, I had to write almost all of our declaration for this one from scratch (while recovering from a lumbar puncture, lying flat on my back in bed: never let it be said I am not completely extra about the lengths to which I will go to fight against this bullshit), so much less of it will look familiar than usual, but boy was I mad.

We'll let you know when the judge makes a ruling on the PI! And three cheers as always for the Netchoice team and for the outside litigation counsel team, who is Lehotsky Keller Cohn for this one and who put in massively heroic effort to get this filed as fast as possible thanks to the law taking immediate effect.

On Friday, the judge hearing our VA case issued a preliminary injunction preventing the state from enforcing Virginia's SB 854 against any Netchoice member (which means us!) while the lawsuit proceeds. Judge Giles's ruling is a little technical in places and covers a number of legal issues that I keep meaning to get around to explaining someday so folks can have a better grasp on the kind of things they'll see argued in cases like these, like strict scrutiny and associational standing, but the end result is still pretty clear, I think: the judge agrees Netchoice has made a strong enough showing right from the start that the law is unconstitutional to block the state from doing anything to enforce it until the full case can be heard.

This is only the beginning of that particular fight and we still have a ways to go, but it's great news for us, for all our users from Virginia, and for the internet as a whole. Three cheers for the Netchoice team and the outside litigation counsel, who are Clement & Murphy for this one! The full docket in RECAP: NetChoice v. Jason S. Miyares, 1:25-cv-02067, (E.D. Va.).

Cross off another entry on the "states we have helped to sue" map!

The case: NetChoice v. Skrmetti (3:24-cv-01191) M.D. Tennessee
The law: Tennessee's HB 1891, the "Protecting Children from Social Media Act"
The filings: The documents aren't in RECAP yet, but you can read them on Netchoice's page for the lawsuit.
The issues and how they affect you: In addition to the standard "a website can't treat minors and adults differently unless they know who's a minor and who's an adult, and the only way to do that to the standards required by these laws is to forcibly deanonymize and age-verify everyone who visits the site" issue that all of these laws have, and in addition to the problems of accurately and conclusively establishing who's a minor user's actual parent and which person has legal decisionmaking authority over them, TN HB 1891 includes some fun (and unconstitutional!) wrinkles. Like several other laws that Netchoice is challenging, HB 1891 requires sites to provide parents with "supervisory" authority over the accounts of minors to change settings and control who can contact them -- but also to "set daily time restrictions and implement breaks during which the minor cannot access the account".

As I covered in our declaration: we have absolutely no idea how much time you spend on the site daily. We don't track it, we don't want to track it, and the technology that would be required to track it accurately (as opposed to just estimatating) would be massively and horribly intrusive, especially given that people can post novel-length entries that can take some people hours to read. The provision about letting parents specify hours during which a minor can't access the account also runs into the time problem: ask any programmer about how hard it is to accurately determine a) what time it is right now; b) what time it is where the user is located; and c) how much time has elapsed between two events, and you're likely to get a hollow, despairing laugh. (I tried to get Netchoice's outside counsel to let me embed xkcd 2867, "DateTime" in my declaration, but alas, courts have no sense of humor.) As I said to one of the lawyers we were working with on this, I'd rather take a job doing nothing but verifying reports of the most horrible content you can imagine posted to the internet than a job that involved maintaining datetime systems, even at half the salary.

If this law is allowed to go into effect, not only would TN residents have to upload their government identification in order to access the site, we'd also have to build awful intrusive and privacy-destroying systems that would track how much time you spent active on the site daily. (And since there's a billion ways around all the easy ways of tracking that kind of information, when I say 'intrusive', I mean intrusive, probably down to the level of capturing keystrokes and cursor movements in order to determine whether someone was actively in front of the keyboard, which means the risk of capturing all kinds of other input as well whenever you have a tab open to DW.) And even with all that, there's still a chance a TN minor could work around anything we put into place and a court would hold us liable for it, no matter how much work we put into preventing it. Like all of these other lawsuits we've contributed to, that's a bad law.

You can read the motion for preliminary injunction, which covers a bunch of the things that make this law unconstitutional very neatly. We'll keep you updated on events that happen!