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Notes -
NRA v. Vullo drops:
[Past discussions here, here, and here. Also, someone pick up the phone, because I called it.]
Perhaps Justice Jackson's retaliation theory would have survived, if only the NRA were prescient enough to bring it --
Nope.
Well, are there any protections for rights beyond 'don't do exactly this twice in a row', when this case had to go up to SCOTUS and took the better part of a decade to produce a case that 'clearly establish' matters in the first place?
How low is the standard here?
Remember, that's for a case where SCOTUS -- in an opinion written by Sotomayor -- slapped down the Second Circuit. Here, over a year later, the Second Circuit instead motions to circuit precedent holding that "vigorous dissent" or "a petition for rehearing en banc [that] was denied over the objection of five circuit judges" is sufficient. A cynic might notice that the 2nd Circuit covers land where state judges make arguments like "Do not bring the Second Amendment into this courtroom. It doesn’t exist here.", and ponder whether even that would be sufficient.
The more damning revelation is that all of this is still the motion to dismiss phase. The NRA alleges quite a lot of bad behavior by Mrs. Vullo and the broader NYDFS. Long-extant circuit precedents "generally prefer lower courts to resolve qualified immunity defenses at the summary judgment stage"; we didn't get that. Discovery might well have established far more of the harm, or at least proven rather than merely alleged the bizarre array of Vullo's retaliatory behavior. It was also too deep a cut for the Second Circuit's vaunted interest in due process to let survive.
Steam Bends The Knee
On a slightly more lighthearted topic, Valve has now updated its acceptable content list, specifically forbidding:
Steam has long had an awkward relationship with adult media, and not just because you might not want to tell your entire friends list when you first start up Giant Melons Simulator 3000. Valve is a big business, and a business mostly consisting of credit card transactions with a nontrivial chargeback rate. Even if it could afford a temporary disruption from a bank it operates with, or for that matter an eyebrow raised from one, it would cost the business orders of magnitude more than all adult video game sales would in a much longer period.
At the same time, Valve is an ideological company, and it has long committed to not being the taste police. While that commitment has had fuzzy edges even before it was written down, most of those exceptions and exclusions were at least arguably in the spirit of the original thesis. This one? There's not much but the payment processors.
In the short term, there's no shortage of other locales selling games, including adult-themed games, and other ways to make a living making games... though all are likely to get hit by the same pressures over time and sometimes already have the same sort of motions toward content provider rules. There are other ways to make a living making games, without necessarily selling the output. There are other ways to get a story out.
There's a fair argument that these sort of games shouldn't be monetizable, or shouldn't exist. I wouldn't agree to most of them, but I will admit few games banned so far are those I'd consider unique or unusual in their innovation or message. There's no cultural touchstones falling, yet, even among subcultures that go through astounding amounts of kleenex.
But it's also not clear that's what's actually banned, and that's the more damning bit. There is not, in fact, some clear list of what Steam's payment processors find acceptable; attempts to read through itch.io's list of payment processor guidelines point to a ban on porn entirely, and even a glance through those competitors will give seemingly-obvious differences from the letter of those rules. Looking through the list of removed games gives some common themes, but also some clear outliers (including one game that apparently wasn't adult, it just had a stupid name?).
Well, we can't ask Visa or Mastercard (or Wells Fargo) directly (and expect to get an answer), but can we look at the people who pushed them in turn?
Like most pornapocalypses, there's a bit of a bootleggers-and-Baptists activism involved between social conservatives and feminists, but one of the big actors is NCOSE, who spent the last week panicked over Grok's 'Ani' companion, previously wrote terrified fanfic about Frozen II porn, and tried to get a dating-sim-Bejeweled clone pulled. They're not likely to get everything they want; there are some fundamental disagreements in what content should be banned, even between NCOSE and other parts of this coalition. Indeed, it's hard to tell whether Steam's even seriously engaging with their rules here, or just trying to get them to go away. But to the entire coalition, the fight is clearly not done.
There's a common defense of these restrictions from a perspective of free speech, pointing to the difference between government and business coercion. No private merchant has to sell a specific product; no private credit card processor has to work with every possible client; a private bank gets a little more complicated legally but it's not a free speech question. It's only when the government leans on these groups to do that it becomes a clear-cut constitutional violation (or when Rehnquist likes you).
But we do know that happens, at least in some few other cases! It got lost in the rest of the politics, but Operation Choke Point specifically included smut in its list of suspect goods. And we only found out because of several whistleblowers, administrators so certain in their impunity that they spread documentation across multiple federal offices, and literal years of Congressional investigation.
But we're not going to get that, here. Congress doesn't and won't care. Even in the unlikely case that NCOSE and the modern-day-Sarkeesians get everything they want, Congress won't care. There's no insurance executive here who believed in the mission and will provide testimony to individual businesses at the sharp end of the stick, demonstrably. Without that support, or equivalents, there may be no serious way to actually find out what happened in any other case, including this one. There's no cause of action a game developer would have against Steam that would survive a motion to dismiss, and even in a world where multiple different government agencies were involved in pressuring someone here, those developers wouldn't even know who to sue, nevermind have a method with any chance of success.
Except...
Bank Pause Letters: Electric Boogaloo
[disclosure: while there are some technically interesting components to
ponzigpucoins and there are some things like distributed DNS that I hope eventually work out, the entire field has enough scammers that I recoil from it. As a result, there may be (more) errors in the general discussion than I normally aim for. Corrections are appreciated, as always.]In February of this year, Patio11 over at
XTwitter commented on a court transcript:The transcript is a fascinating (if dry) read, and if anything Patio11 is giving his trademark understatement. The rest of the history doesn't look much better. To summarize, Coinbase believed that a handful of government agencies had pressured a large variety of banks to stop taking in new ccoin-related business, and decrease existing accounts as a percentage of total business.
Here, there was a known set of agencies that could have been making the regulatory decisions. There was a very specific timeline that those regulations could have actually come down in. "History Associates", the org used as a FOIA plaintiff, was unusually well-funded, and had several organizational protections making both the initial FOIA and the lawsuit going after the agency violating FOIA more viable. There were very specific terms, and to the extent the exact rules weren't known to the plaintiffs, they could make some very specific guesses about the language the regulatory agencies would use.
(TBF, they have also gotten a whistleblower from the FDIC, although given that he seems to be coming across to the court as a bit of a nutjob, not sure if that's helpful or otherwise. But as much of a nut as he seems, he also has alleged that the FDIC was destroying data, and the FDIC admitted that it did not issue a command to preserve that data.)
If all of that helped, it wasn't sufficient. Even before the January 2025 court hearing, the FDIC has been abusing FOIA exceptions to illegitimately hide the extent these organizations were targetted and had rewritten the FOIA request in a way that we now know changed it from dozens of documents to a mere two. The SEC, involved in determining whether ETH was a security or not, had its chair publicly claim that the change from proof-of-work to proof-of-stake could impact something somewhat, and then never publicly saying how, avoided having any court hearings turn as embarrassing as the FDIC's. But it's not done much better -- starting out by declaring no responsive documents existed, then that over a hundred thousand did but were temporarily blanket-exempted, and then ten months after the initial rejection announcing that not only did they not prepare for after that exemption inevitably ended, but that they wouldn't even know what the timeline for a Vaughn index to explain what documents could be exempted for other reasons would be.
But the results, damning as they are, don't actually mean anything. It looks like the claims of a 15% rule weren't probably made up, but it's also not explicitly in the documents, and even if it were in one it wouldn't mean it was actually being applied as a consistent rule. Even today, I wouldn't want to bet monopoly money on it. In the unlikely case that these particular lawsuits ever actually resolve, they're still FOIA lawsuits; the best "History Associates" can hope for are some damning documents and some relatively-small monetary awards. Actually achieving any concrete policy changes would require either overtures toward the public (good luck) or toward senators (gfl) or filing further lawsuits (hah).
Thankfully, we have at least one alternative. There's been a long-running joke about coup-complete problems, as a disparaging way to describe issues that can't be resolved short of having complete control over a government. Unusually for such jokes, we have what the current president's political opponents might call a test case. For various reasons, that President does not like (some) debanking. There has been some regulatory movement, and even some legislative woolgathering (uh, if you can avoid laughing at the name). Whatever results from that might not be worth the toilet paper it was written on, but lawsuits have the same problem and didn't have to filed in 2018 to get a no today, unlike Vullo.
Of course, in neither case will we ever find out what the actual rules are.
Maybe that short term is shorter than I thought:
Several people on the forums report not being able to access games that they'd already bought. I haven't yet seen a good list of what titles were hit.
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As a side note, I should add that both Ani and Bad Rudi have been removed from Grok’s iOS app as of this morning. No real public info on why, or if that’s temporary or permanent.
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Regarding Steam, I think it is fair to say that PC gaming is probably the least restrictive as far as content policing goes. While it hurt me deep in my soul to praise MS, compared to most of the walled gardens which have popped up since 2000, the PC is a rather open platform. Anyone can develop and distribute any game, no matter how disturbing or distasteful."Windows Defender has prevented the execution of Holocaust Simulator 3000.exe because it violates the PC content policy" is not a thing that happens.
For every other platform except the very niche (GNU/Linux) and Android (depending on what the OEM allows), you have exactly one software distributor for your hardware. While I do not own any gaming consoles or iThings, I imagine that Sony, Nintendo, Apple and MS/XBox are likely much more restrictive in what content they will allow than Steam was. For one thing, they are protecting the reputation of the platform. With PCs, there is no reputation to protect, any youth who owns a PC can download free smut games without restriction. (Personally, I would argue that the potential to run software from f95zone is more than offset by the potential to use computers for all sorts of creative tasks from CAD, 3d modelling, software development, game modding, video and audio editing, drawing, writing, and so on, but presumably some parents would disagree.)
Also, the power of the payment processors frankly sucks. If they were competing on a level playing field, I would not worry too much, if Visa rebrands itself as "smut-free" and Mastercard rebrands itself as "smut-friendly", then the market could sort it out and Visa would likely go the way of Betamax.
The problem is that both banks and payment processors are rather regulated, and the government has plenty of leeway to selectively enforce their interpretation of the law on uncooperative entities. So when some government official says off the record "trust us, dealing with porn companies/wikileaks/sex workers/arms dealers/... will be more trouble for you than it is worth", they are making a credible threat.
In theory, this could be solved with creating/enforcing a standard for real-time cashless money transfer, but the very entities which would have to push this are the governments who like to has this additional power without any judicial oversight.
In my opinion, cash transfer without government oversight was the real problem which cryptocurrency was meant to solve, but few except for dark net markets ever used it that way. Instead, the unwashed masses decided that BTC would be a great investment, so you got an endless procession of shitcoins and NFTs instead.
Yeah, it's actually worse than that. Go on a retro journey and you'll find so many files that Windows Defender tries to block. Old official game patches, mods, cd-cracks. Now I'm told the cd-cracks are false positives, but I judge the sketchiness of gamecopyworld's array of mirrors not worth the risk. Side note, I can't believe gamecopyworld still exist, virtually unchanged from the early 00's.
Hard agree, I actually got two separate false positives not too terribly long ago when trying to fix up a copy of Civ 3: Complete that I had bought from GOG. The first false positive was because the original Civ 3: Conquests disc that had the missing scenario that I wanted to be able to play had Gamespy on it, which was unsigned code and the second was that I was attempting to install command-line software that would allow me to unpack the .CAB file to grab the single scenario file from the CD that was missing in my install of Civ 3.
GUH.
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I find this a weird conclusion given that Congress just passed a big series of crypto regulation and specifically of stablecoins which seem like a very clear candidate for an alternative to payment processors.
Now Circle and Tether do still have a sort of similar problem to Visa and MasterCard, but the ground isn't exactly the same as it was then years ago and you ought to acknowledge it.
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Yeah, it's very hard to beat the PC when it comes to running arbitrary code, without going to something like Linux. Steam, in turn, has been one of the (though not the most) less restrictive marketplaces.
The Microsoft App Store is pretty restrictive, and a large part of what has driven Steam toward Linux support in recent years has been concerns about that becoming a more central part of the next Windows operating system, but MS has thankfully not stepped any further toward that since Win8 first came out.
By contrast, Apple has been pushing code signing for a decade now, and have made it increasingly difficult to run unsigned code, and has revoked code signatures before. Their App Store is also a little more heavily integrated, though like Windows it isn't mandatory either.
Android varies heavily on implementation. By default you can run unsigned code, but it's possible to block third-party APKs. I think some Amazon tablets come like that?
... mostly. SmartScreen's actually a bit complicated: you can submit software to Microsoft for free, or buy a license to sign a file, or wait til enough people use a specific application for it to get through their algorithm. Officially, they're not supposed to be looking at anything but the malware analysis. For solo small-audience devs, I can speak (for both adult game and non-adult-game stuff) that options 1 and 3 don't really work in any plausible timeframe.
Yes, largely. Sony actually had a consumer-friendly dev console back in the PS1 era that could run unsigned code, but it was very expensive and intentionally limited to only run smaller programs. Most of the others don't allow third-party unlicensed software, or only allow developers to run things locally, or only are available through hacks.
Even if it could be solved without government assistance, there are a lot of regulations that would get involved for a privately-produced easy real-time cashless money transfer tool. That sorta know-your-customer and anti-laundering stuff (along with technical issues) is charitably part of why coins haven't really been able to engage with that outside of darknet markets.
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The Coinbase lawsuits were a hoot. At one point the stock was down 90% from the IPO seemingly on the basis that they'd get bankrupted by federal lawsuits. It was a fun and profitable bet to take the other side of. They had assets on the book worth more than their market cap. I'd had this theory that Coinbase would execute a regulatory capture strategy for crypto in the US, as they'd always played well with regulators and generally licked their boots and did whatever they were asked to do to the consternation of /r/bitcoin. I never counted on the feds just having an insatiatable hardon that verged on a medical condition for destroying them on principle. I especially enjoyed the SEC being hoisted by their own petard when the Bitcoin ETFs were approved, effectively by court order.
Sometimes I do wonder what would have happened if the Biden administration hadn't nakedly antagonized so many interest, and driven them into the arms of Trump not out of affinity, but existential desperation. I guess I can be thankful that this once at least, evil did contain the seeds of it's own destruction.
And to a smaller degree Lina Khan going after tech companies. Blocking acquisitions and saying they need to be broken up. Not an idle threat when the head of the FTC keeps taking companies to court over it. Amongst other anti-big-tech Biden administration actions.
Then after the election I'm listening to Pod Save America and they are outraged that these same tech companies give a million dollars to the Trump inauguration or Bezos commands the Washington Post to not endorse Kamala. Not that they love Trump, but in desperation trying to avoid more punishments from Democrats.
Ok, but what’s the likelihood democrats will won them back? It seems like they’d need Newsom ‘28 to not go after people who donated to his opponents(lol).
In order for Big Tech to rejoin the Democrats, the Democrats would need to make some kind of credible commitment to not backstab Big Tech the second they get back into power. I don't think it's very likely. I wouldn't even trust the Democrats to hold off on the backstab until after they regain power. They're a very stabby people.
Say what you will about Trump but he's capable of playing ball, at least in the short term. If you help him get what he wants then he'll hold off on betraying you for at least a few months. That's not great, but it inspires more loyalty than the Democrats, who will betray any ally at any time if enough activist groups demand it.
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I'm sure FTX also had assets 'on the books' large enough to cover all their liabilities and even lawsuit/regulatory risk if they got targetted.
But the books were cooked, which is seemingly a common factor in crypto exchanges, with insider trading and light fraud showing up with some regularity. Ironically given that one use of crypto is keeping all books open for easy scrutiny at all times.
Mostly joking. Coinbase is, I think, the longest running American Crypto Exchange and has weathered several storms so I'd not be the one betting against them. I've had an account with them since they used to hold private keys printed on physical paper stored in physical lockboxes. But there was definitely a period of time around and after the IPO where it wasn't clear if the Gov't was going to really crack down on exchanges or liberalize the rules.
We're clearly in the liberalizing timeline.
Coinbase has always been more professionally run that other crypto companies. They brought on experienced corporate lawyers, auditors and executives early, and were probably the most serious and normie coded crypto company. I think they are the only one who's been regularly audited by an accredited outside firm as well, something FTX and Binance and others refused to comply with claiming it was impossible.
Yeah, I will say they might literally be the ONLY exchange I know of that was fully expecting, well in advance, the need to navigate regulatory environments and fight off attempts by regulators to bully them, and the plan was more than "ignore it until they're kicking the door in to serve a warrant."
I was in early enough to see what happened to Mt.Gox, so my choice of exchange way back then was very carefully reasoned, and Coinbase seemed like the only one that wasn't grown from tainted seeds (i.e. drugs, gambling, or money laundering).
Would make very little sense to chase 100x gains whilst ignoring the 20-30% chance of your preferred exchange getting fined or sued into oblivion or crashing due to incompetent leadership.
Kraken has been alright to me as well.
...which is sometimes a rational choice, because the penalty for getting caught is frequently less than the gains from crime. Changpeng Zhao seems to be doing alright for himself.
Seriously, more countries need to have the penalty of "all your money are belong to us" on the table for financial criminals and/or actually use it.
No real disagreement from me.
I just think people who do pull these shenanigans will blow themselves up more often than not, for want of knowing when to stop/being able to stop.
I want to identify such folks and be far enough away that the explosion doesn't catch me.
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tfw when all your bitcoin is just in cash app
Not your key, not your coins. Ideal to live by.
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