Thanks for your comments. The drafters expect federal action on this issue very shortly.
When that federal action finally arrives it would be better to have a state law cause of action ready to go than on the drawing board. In the meantime, it is certainly no secret to us that the FSIA is a huge hurdle to get over - we did go to law school, after all, and I am litigating a case in D.C. on this exact issue against the UK's Ofcom in which Ofcom raised sovereign immunity as a defense - but it is not an impervious shield, and given the right fact pattern it can be overcome.
FSIA is also not the first and only hurdle a lawsuit against a foreign censor needs to get over. Your first hurdle in filing a lawsuit over foreign censorship is that you need a cause of action, and this bill creates one.
On the damages point, $1 million statutory damages was tailored to the scale of damages awards one can sometimes see in IP infringement cases. (My original proposal was $10 million but it was scaled down to address the exact concern you identified.)
In the foreign censorship cases the GRANITE Act is designed to address, the threatened fines from foreign states that seek to enforce their censorship laws in the U.S. are routinely in the millions - for failing to provide a report on its moderation practices to the UK, 4chan, for example, was threatened with criminal charges and statutory damages not to exceed 10% of its global worldwide turnover or £18 million (approx $24 million), whichever is greater. This mechanism is replicated by the EU Digital Services Act. GRANITE is designed to provide a damages award equal to the amount of the threatened foreign penalty, thus making the foreign penalty economically non-viable to enforce.
On the M2 point, nation-states do not buy bread at U.S. grocery stores. CPI is not the appropriate inflation measure. The intended effect of the "sword" provisions is to deter foreign censorship attempts. If foreign states will simply respect Americans' civil rights and stop sending letters to U.S. companies threatening their staff with jail time for constitutionally protected speech and conduct, there's no reason they should ever have a problem with a GRANITE-type law.
Finally, I'm not a lobbyist. I have been representing every target of foreign censorship laws who needs a defense, pro bono. My day to day work focuses on commercial contracts advice and commercial litigation, not political stuff.
We look forward to seeing what our friends in Congress are cooking up very soon.
Credit where credit’s due - I did not expect a response, much less a reasonable rebuttal. I appreciate it, so I’ll be a bit more measured in mine.
First, I’m genuinely interested to see if the DC court (who is … not exactly what I’d call a safe space for preemption / supremacy arguments) sides with you on the Ofcom case. Who knows, with this administration, in this climate…
And as I wrote, I agree that some laws are so broad and censorious that they legitimately chill speech. I have no love for the age-assurance/’think of the children’ laws any more than you. On this, we are on the same page.
That said, I still think this law is going to be an absolute clownshow/spectacle and not an actual bulwark against censorship and overreach.
First, let’s talk about damages.
The damages language in the GRANITE Act is not just $1M / 10% per claim but the greater of the two per violation. And it’s 10% of the sovereign country’s annual US revenueper violation, since it’s whichever is larger and you’re not really going after Tuvalu’s censorship laws here.
And I get that no court will award such an amount, just as no company has yet been fined 2% or 4% or 6% etc., of annual worldwide turnover under the GDPR or DSA. But that isn’t the real concern I have. I’m worried about the type of litigants who will pour in from all over America thinking that they’ll get 10% of Brazil or the UK’s annual US revenues.
As written, the CoA in the GRANITE Act is basically:
a) do you feel like some foreign country’s government, official, or an intergovernmental organization expressed concern about your speech on the internet (‘threatened to enforce’)
b) is that speech hosted in a data center somewhere in Wyoming? (1-44-105(a)(iv))
c) No? Well, can you buy some server space in a colo in Wyoming?
That isn’t injury in fact, it’s vibes + and a very thin skin. If you were actually going for something with a chance of being effective, the language should have been limited to actions brought on behalf of a party by a State AG. Surely, Elon or Zuck, or even 4Chan with a decent GoFundMe could wrangle up enough money to bribe/convince the Wyoming AG to sue on behalf of protecting the First Amendment.
Instead, this law creates a free-for-all for any Neo-Nazi who thinks he should get to scream Heil Hitler while in Germany, record it and post it on Twitter, and then turn around and say ‘Yeah, but Twitter was hosted in Wyoming, so foreign censorship law, and you threatened me online, so give me $10B plz’
I get that this may be good press for a certain class of litigators, but that doesn’t make for good law. it makes for spectacle. Ditto for the fact that SoP can be done via website. I mean… Preston… C’mon.
And while I agree that sovereign countries don’t buy bread at US grocery stores, true, but inflation in litigation is still usually measured against CPI because it’s less volatile. But I’ll let that go, because I’m skeptical that the law will ever succeed to a point where this becomes an issue.
That said, I apologize for labeling you as a lobbyist, that was unfair. Bombastic Twitter poster (who occasionally says things I do agree with) is probably more accurate.
Thanks for your comments. The drafters expect federal action on this issue very shortly.
When that federal action finally arrives it would be better to have a state law cause of action ready to go than on the drawing board. In the meantime, it is certainly no secret to us that the FSIA is a huge hurdle to get over - we did go to law school, after all, and I am litigating a case in D.C. on this exact issue against the UK's Ofcom in which Ofcom raised sovereign immunity as a defense - but it is not an impervious shield, and given the right fact pattern it can be overcome.
FSIA is also not the first and only hurdle a lawsuit against a foreign censor needs to get over. Your first hurdle in filing a lawsuit over foreign censorship is that you need a cause of action, and this bill creates one.
On the damages point, $1 million statutory damages was tailored to the scale of damages awards one can sometimes see in IP infringement cases. (My original proposal was $10 million but it was scaled down to address the exact concern you identified.)
In the foreign censorship cases the GRANITE Act is designed to address, the threatened fines from foreign states that seek to enforce their censorship laws in the U.S. are routinely in the millions - for failing to provide a report on its moderation practices to the UK, 4chan, for example, was threatened with criminal charges and statutory damages not to exceed 10% of its global worldwide turnover or £18 million (approx $24 million), whichever is greater. This mechanism is replicated by the EU Digital Services Act. GRANITE is designed to provide a damages award equal to the amount of the threatened foreign penalty, thus making the foreign penalty economically non-viable to enforce.
On the M2 point, nation-states do not buy bread at U.S. grocery stores. CPI is not the appropriate inflation measure. The intended effect of the "sword" provisions is to deter foreign censorship attempts. If foreign states will simply respect Americans' civil rights and stop sending letters to U.S. companies threatening their staff with jail time for constitutionally protected speech and conduct, there's no reason they should ever have a problem with a GRANITE-type law.
Finally, I'm not a lobbyist. I have been representing every target of foreign censorship laws who needs a defense, pro bono. My day to day work focuses on commercial contracts advice and commercial litigation, not political stuff.
We look forward to seeing what our friends in Congress are cooking up very soon.
Credit where credit’s due - I did not expect a response, much less a reasonable rebuttal. I appreciate it, so I’ll be a bit more measured in mine.
First, I’m genuinely interested to see if the DC court (who is … not exactly what I’d call a safe space for preemption / supremacy arguments) sides with you on the Ofcom case. Who knows, with this administration, in this climate…
And as I wrote, I agree that some laws are so broad and censorious that they legitimately chill speech. I have no love for the age-assurance/’think of the children’ laws any more than you. On this, we are on the same page.
That said, I still think this law is going to be an absolute clownshow/spectacle and not an actual bulwark against censorship and overreach.
First, let’s talk about damages.
The damages language in the GRANITE Act is not just $1M / 10% per claim but the greater of the two per violation. And it’s 10% of the sovereign country’s annual US revenueper violation, since it’s whichever is larger and you’re not really going after Tuvalu’s censorship laws here.
And I get that no court will award such an amount, just as no company has yet been fined 2% or 4% or 6% etc., of annual worldwide turnover under the GDPR or DSA. But that isn’t the real concern I have. I’m worried about the type of litigants who will pour in from all over America thinking that they’ll get 10% of Brazil or the UK’s annual US revenues.
As written, the CoA in the GRANITE Act is basically:
a) do you feel like some foreign country’s government, official, or an intergovernmental organization expressed concern about your speech on the internet (‘threatened to enforce’)
b) is that speech hosted in a data center somewhere in Wyoming? (1-44-105(a)(iv))
c) No? Well, can you buy some server space in a colo in Wyoming?
That isn’t injury in fact, it’s vibes + and a very thin skin. If you were actually going for something with a chance of being effective, the language should have been limited to actions brought on behalf of a party by a State AG. Surely, Elon or Zuck, or even 4Chan with a decent GoFundMe could wrangle up enough money to bribe/convince the Wyoming AG to sue on behalf of protecting the First Amendment.
Instead, this law creates a free-for-all for any Neo-Nazi who thinks he should get to scream Heil Hitler while in Germany, record it and post it on Twitter, and then turn around and say ‘Yeah, but Twitter was hosted in Wyoming, so foreign censorship law, and you threatened me online, so give me $10B plz’
I get that this may be good press for a certain class of litigators, but that doesn’t make for good law. it makes for spectacle. Ditto for the fact that SoP can be done via website. I mean… Preston… C’mon.
And while I agree that sovereign countries don’t buy bread at US grocery stores, true, but inflation in litigation is still usually measured against CPI because it’s less volatile. But I’ll let that go, because I’m skeptical that the law will ever succeed to a point where this becomes an issue.
That said, I apologize for labeling you as a lobbyist, that was unfair. Bombastic Twitter poster (who occasionally says things I do agree with) is probably more accurate.
I’m not sure this trash bill deserved your careful evisceration…but thank you! 🙏❤️
It didn't, but sometimes when something is so dumb, the muse comes to me and I just write.
Can’t argue with the muse! 😂
Great takedown. And good to get some clarification about the background for this mysterious proposed bill