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.
No worries and no apologies needed, it's the Internet. It happens.
The law has two provisions - a "shield" and a "sword."
The "shield" piece states that Wyoming courts and executive branch agencies won't assist in the enforcement of foreign orders that violate the 1A. I think this should be pretty controversial and it prevents the situation we encountered, and continue to encounter, in the 4chan v. Ofcom case, where Ofcom asserted contrary to good sense (and settled law) that it had jurisdiction over my client when it very obviously does not. Pointing to a statute makes a target's lawyer's job a lot easier, and makes the defense a lot cheaper.
On the "sword" piece, there are some pretty significant limitations. First, the main categories of prospective plaintiffs are Wyoming citizens, residents, corporations, and persons physically present in Wyoming when the order is served. The bit about server colo applies only if the prospective plaintiff is a "U.S. person," which is defined as a U.S. natural person or U.S. corporate entity who has the relevant Wyoming nexus, which is defined by reference to either the speech in question being hosted in Wyoming or originating in Wyoming. A foreign citizen, not being a U.S. person, is not an eligible plaintiff.
On the damages, although the OSA/DSA haven't imposed the maximum fines (yet), if we look to analogues from other EU regulatory regimes which operate in a similar fashion (namely their competition regime) we will see the European Commission is not shy about imposing titanic fines when there's the political will to do so.
To get the benefit of both components to the maximum possible extent, you really need to be in Wyoming. It would in practice be very difficult for a random X user to make out a claim as they'd have to first prove that the speech was in Wyoming and X isn't going to give them access to their internal logs without a subpoena (and might not do it even then). If someone decides they want to colo in Wyoming, well, Wyoming's legislature is entitled to decide that speech in Wyoming is not to be targeted by foreign censorship orders.
If foreign censors need to worry that a prospective enforcement target has a server in Wyoming, and that prevents them from attempting to chill constitutionally protected speech, in my book that's a pretty good thing. If they want to do censorship they can stop threatening Americans, call up their own domestic ISPs and do it themselves, owning fully the political consequences of doing so.
The idea here isn't to create a lucrative litigation practice. The idea is to force foreign legal requests back into treaty channels, where they belong and where the U.S. Department of State, DOJ, and, ultimately, an American court can assess them for constitutional compliance before they are transmitted onward to American recipients, instead of by e-mail harassment outside of treaty channels, where there is no supervision by the U.S. legal system at all. This is why the federal law savings provisions ensure that if the U.S. is complying with a foreign mutual assistance treaty in serving a notice on a U.S. person, that won't trigger a cause of action under the "sword."
Most foreign criminal cooperation requests run through treaty channels. Only with foreign censorship, where the foreign governments know the treaty channel won't work, are these channels ignored and the extraterritoriality doctrines created (over there) in an attempt to purport to have authority to control American speech on American soil.
On the D.C. case I of course have a great many thoughts on how that might go but as the litigation is still continuing I am rather constrained in what I can say on the topic. When the case is over it'd be great to pick it back up!
I should have added U.S. Neo-Nazi, not just an unqualified Neo-Nazi. But there are plenty of those, and many of them like to attend various 'unite the right in X Country' protests/events. My specific scenario was poorly conveyed -- What I meant to say was say it's a Wyoming Neo-Nazi, who rocks over to Munich to attend the latest pro-Hitler rally and drink some mas steins. He puts a few back, begins HH-ing in the biergarten, waves around his Mein Kampf, and fucks off back to the US after he sobers up. He then receives a letter 'threatening' him under Germany's Holocaust denial/Nazi support laws. IMHO, that isn't a foreign censorship law -- it's an enforcement action seeking extradition based on actions done in the foreign jurisdiction where the law was violated.
Now turn it around -- imagine it's 2027, and Texas finally passes its draconian ban on 'providing information on how to obtain an abortion'. A Dutch abortion activist comes over to the US to speak at a seminar on the benefits of safe and legal abortions in Holland. They're speaking in California (where it's legal) but they include advertisements for the seminar and the slides giving instructions on how to obtain abortion in Holland to anyone in the US. The activist returns to Holland before Texas can execute an arrest, so the State AG files extradition order.
Is that a 'Foreign Censorship Law' against the Dutch citizen? Would you approve of a similar 'sword' used against the Texas AG by the Dutch citizen?
As for the MLAT provision, either your savings clause nullifies 1-44-108(f)(iii) in its entirety, or it's circular. A MLAT, as I said in my post, is a treaty, independently signed or done as part of larger treaty negotiations. It's binding federal law. So, what 1-44-108(f)(iii) is saying is either a) ignore binding federal law or b) pretend you can ignore binding federal law, but don't really because it's binding federal law.
I doubt I'll persuade you, but I do think these are rather sizable gaps in your legislative drafting process. That said, the US runs high on grievance and is currently in denial about the entire concept of the rule of law right now, so you might prevail anyway.
As to the German hypo, an extradition request from Germany would have to go through the US-Germany extradition treaty, which requires dual criminality. This law is designed to address situations where the treaty procedure procedure is not used, such as with known attempted enforcements of the NetzDG or the UK Online Safety Act has been used to threaten American websites with fines or arrest and no treaty procedure has been employed.
As to the Texas hypo,this would not be covered by this law as it only applies to foreign states and international organizations. As to whether I would approve of a similar Dutch rule, that is a matter for the Dutch to decide. Countries can make such rules as they please, and they do.
As to the MLAT comment, I think you may have misunderstood my point. What is happening now is that MLATs are *not* being used to serve foreign censorship orders - they're just sending letters, because the MLAT procedure involves American consent to serve the order and that consent will not be given for a foreign censorship order or extradition request based on protected speech in the United States.
They're just sending threats, by air mail, by courier and by email. This bill says that if you send that threat, the victim can respond with a lawsuit. That's what would happen if the USG pulled a stunt like that; it's only fair that foreign governments who try to get away with it receive the same treatment.
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.
No worries and no apologies needed, it's the Internet. It happens.
The law has two provisions - a "shield" and a "sword."
The "shield" piece states that Wyoming courts and executive branch agencies won't assist in the enforcement of foreign orders that violate the 1A. I think this should be pretty controversial and it prevents the situation we encountered, and continue to encounter, in the 4chan v. Ofcom case, where Ofcom asserted contrary to good sense (and settled law) that it had jurisdiction over my client when it very obviously does not. Pointing to a statute makes a target's lawyer's job a lot easier, and makes the defense a lot cheaper.
On the "sword" piece, there are some pretty significant limitations. First, the main categories of prospective plaintiffs are Wyoming citizens, residents, corporations, and persons physically present in Wyoming when the order is served. The bit about server colo applies only if the prospective plaintiff is a "U.S. person," which is defined as a U.S. natural person or U.S. corporate entity who has the relevant Wyoming nexus, which is defined by reference to either the speech in question being hosted in Wyoming or originating in Wyoming. A foreign citizen, not being a U.S. person, is not an eligible plaintiff.
On the damages, although the OSA/DSA haven't imposed the maximum fines (yet), if we look to analogues from other EU regulatory regimes which operate in a similar fashion (namely their competition regime) we will see the European Commission is not shy about imposing titanic fines when there's the political will to do so.
To get the benefit of both components to the maximum possible extent, you really need to be in Wyoming. It would in practice be very difficult for a random X user to make out a claim as they'd have to first prove that the speech was in Wyoming and X isn't going to give them access to their internal logs without a subpoena (and might not do it even then). If someone decides they want to colo in Wyoming, well, Wyoming's legislature is entitled to decide that speech in Wyoming is not to be targeted by foreign censorship orders.
If foreign censors need to worry that a prospective enforcement target has a server in Wyoming, and that prevents them from attempting to chill constitutionally protected speech, in my book that's a pretty good thing. If they want to do censorship they can stop threatening Americans, call up their own domestic ISPs and do it themselves, owning fully the political consequences of doing so.
The idea here isn't to create a lucrative litigation practice. The idea is to force foreign legal requests back into treaty channels, where they belong and where the U.S. Department of State, DOJ, and, ultimately, an American court can assess them for constitutional compliance before they are transmitted onward to American recipients, instead of by e-mail harassment outside of treaty channels, where there is no supervision by the U.S. legal system at all. This is why the federal law savings provisions ensure that if the U.S. is complying with a foreign mutual assistance treaty in serving a notice on a U.S. person, that won't trigger a cause of action under the "sword."
Most foreign criminal cooperation requests run through treaty channels. Only with foreign censorship, where the foreign governments know the treaty channel won't work, are these channels ignored and the extraterritoriality doctrines created (over there) in an attempt to purport to have authority to control American speech on American soil.
On the D.C. case I of course have a great many thoughts on how that might go but as the litigation is still continuing I am rather constrained in what I can say on the topic. When the case is over it'd be great to pick it back up!
I should have added U.S. Neo-Nazi, not just an unqualified Neo-Nazi. But there are plenty of those, and many of them like to attend various 'unite the right in X Country' protests/events. My specific scenario was poorly conveyed -- What I meant to say was say it's a Wyoming Neo-Nazi, who rocks over to Munich to attend the latest pro-Hitler rally and drink some mas steins. He puts a few back, begins HH-ing in the biergarten, waves around his Mein Kampf, and fucks off back to the US after he sobers up. He then receives a letter 'threatening' him under Germany's Holocaust denial/Nazi support laws. IMHO, that isn't a foreign censorship law -- it's an enforcement action seeking extradition based on actions done in the foreign jurisdiction where the law was violated.
Now turn it around -- imagine it's 2027, and Texas finally passes its draconian ban on 'providing information on how to obtain an abortion'. A Dutch abortion activist comes over to the US to speak at a seminar on the benefits of safe and legal abortions in Holland. They're speaking in California (where it's legal) but they include advertisements for the seminar and the slides giving instructions on how to obtain abortion in Holland to anyone in the US. The activist returns to Holland before Texas can execute an arrest, so the State AG files extradition order.
https://www.eff.org/deeplinks/2025/04/texass-war-abortion-now-war-free-speech
Is that a 'Foreign Censorship Law' against the Dutch citizen? Would you approve of a similar 'sword' used against the Texas AG by the Dutch citizen?
As for the MLAT provision, either your savings clause nullifies 1-44-108(f)(iii) in its entirety, or it's circular. A MLAT, as I said in my post, is a treaty, independently signed or done as part of larger treaty negotiations. It's binding federal law. So, what 1-44-108(f)(iii) is saying is either a) ignore binding federal law or b) pretend you can ignore binding federal law, but don't really because it's binding federal law.
I doubt I'll persuade you, but I do think these are rather sizable gaps in your legislative drafting process. That said, the US runs high on grievance and is currently in denial about the entire concept of the rule of law right now, so you might prevail anyway.
As to the German hypo, an extradition request from Germany would have to go through the US-Germany extradition treaty, which requires dual criminality. This law is designed to address situations where the treaty procedure procedure is not used, such as with known attempted enforcements of the NetzDG or the UK Online Safety Act has been used to threaten American websites with fines or arrest and no treaty procedure has been employed.
As to the Texas hypo,this would not be covered by this law as it only applies to foreign states and international organizations. As to whether I would approve of a similar Dutch rule, that is a matter for the Dutch to decide. Countries can make such rules as they please, and they do.
As to the MLAT comment, I think you may have misunderstood my point. What is happening now is that MLATs are *not* being used to serve foreign censorship orders - they're just sending letters, because the MLAT procedure involves American consent to serve the order and that consent will not be given for a foreign censorship order or extradition request based on protected speech in the United States.
They're just sending threats, by air mail, by courier and by email. This bill says that if you send that threat, the victim can respond with a lawsuit. That's what would happen if the USG pulled a stunt like that; it's only fair that foreign governments who try to get away with it receive the same treatment.
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