Ofcom seems to be pivoting away at light speed from smaller targets and going after the U.S. majors, like Google.
I had wondered why I got 65 hits on my site last night from Council Bluffs, and today we know: Ofcom and the UK Information Commissioner’s Office opened new files on Facebook, Instagram, Snapchat, TikTok, YouTube, Roblox and X.
One company wasted no time trying to throw my clients, Ofcom’s current targets, under the bus:
I am amazed that the Eye of Sauron finally turned to Google and the first thing Google said was "wait, you guys should be going after 4chan!"
Don't you guys get it? Ofcom was *always* going to come after Google. 4chan was just in the way.
That wall is actually pretty easy to use: Ofcom can threaten an American company all it wants, but the record shows that threats cannot translate into enforcement across America’s borders. Using the wall is as simple as saying “no.”
We are treating Ofcom’s officious censorship demands accordingly:
"Last time Ofcom fined 4chan, we replied with a hamster joke. Ofcom has advised us that it provisionally intends to issue a giant fine to 4chan.
"Accordingly, this time, we are planning to send Ofcom a joke about a giant hamster." https://t.co/rWZPyFl6sg
The First Amendment is sitting there on the ground, waiting for American technology companies to pick it up and wield it. Will they have the courage to do so?
Our experience in Wyoming – getting the full GRANITE Act passed by the Wyoming House of Representatives 46-12 – made us want to get a version of a censorship shield that would pass 62-0.
Accordingly, the team amended HB 70 to remove provisions that some members found problematic. We have supplied this version to legislators in New Hampshire, and will be discussing with Wyoming legislators whether they’ll want to advance this version in 2027 instead of the original.
Here’s what changed and why.
What’s gone in Diet GRANITE
The private cause of action against foreign censors is out. The original bill let Wyoming residents sue foreign states and international organizations directly in Wyoming courts. Statutory damages of $1 million per violation or 10% of US-related revenue, whichever was greater. Joint and several liability. The works. The Senate Judiciary Committee had concerns about how a state-level bill interacts with the Foreign Sovereign Immunities Act and the Commerce Clause. Fair concerns, as only Congress can amend the FSIA, but in my view not the legislature’s problem – that’s an issue to be sorted out in the courtroom, so normally I’d say just leave that to pro bono civil liberties litigators like me.
Ideally, Congress will thread that needle with an expected federal bill, but I think states will be reluctant to move forward with their own bills containing “sword” provisions until Congress does. America does, however, need censorship shields. And the Wyoming experience shows that removing the “sword” will remove a major source of opposition to enacting those shields. So, the “sword” is out.
The civil penalty against state employees is out. The original bill imposed personal liability on any state employee who knowingly helped enforce a foreign censorship order. Up to $10,000 per violation, no qualified immunity, no indemnification. This was the provision designed to ensure state officials took the non-cooperation mandate seriously. That was not received well in committee. Accordingly, it’s gone.
The legislative findings are out. The long preamble documenting Ofcom, the DSA, the Brazilian enforcement, and the specific threat to Wyoming’s digital economy is removed. Findings are nice to have but they’re not operative text. Everyone knows foreign censorship is a problem anyway, and the bill is leaner without them.
What remains in Diet GRANITE
Enough to ruin a foreign censor’s week.
Non-recognition. Wyoming courts shall not recognize, enforce, or give effect to any foreign judgment based on constitutionally protected expression. Ofcom’s fines are legally invisible in Wyoming. Their orders are unenforceable. Their penalties are uncollectible. This is the core shield and it’s intact.
Non-cooperation. The state, its political subdivisions, and its employees shall not provide assistance or cooperation in enforcing foreign censorship judgments. The anti-commandeering backbone of the bill. Wyoming will not help foreign censors do their dirty work.
Criminal judgment non-recognition. Wyoming courts shall not recognize foreign criminal convictions, sentences, or warrants based on protected expression. If the UK decides to criminally prosecute an American for running a legal website, Wyoming will not give effect to the prosecution.
Extradition blocking. Wyoming shall not arrest, detain, or surrender any person pursuant to a foreign extradition request based on protected expression. Nobody is getting extradited from Wyoming for posting or hosting.
Declaratory judgment action against the state. Any person subject to a foreign censorship order can go to a Wyoming court and get a declaratory judgment that the order is unenforceable, or an injunction prohibiting anyone from enforcing it. This is how you make the shield work in practice: you go to a judge, you show the judge Ofcom’s fine, and the judge formally declares it void in Wyoming.
The trade-off of Diet GRANITE
Same great deterrence, half the federal preemption issues calories.
Diet GRANITE is a pure shield, no sword. The shield is comprehensive. The shield protects any person or entity in Wyoming from every instrument in a foreign censor’s toolkit: civil fines, criminal prosecution, extradition, evidence demands, you name it. The shield is real and the shield works.
But the shield doesn’t deter threats as well as sword does. It might not have to; its existence on a state’s statute books will communicate to a foreign censor that trying to invade the United States is a waste of time and money. It does not, however, impose real costs and allow Americans targeted by these orders to punch back. The sword, if we get one, will likely have to be a federal move and one where Congress leads and the states follow, rather than the other way around.
As we’ve seen, foreign censors will dare to try to boss Americans around and then run for the cover of sovereign immunity the second they’re haled into court. America shouldn’t allow that, as a country. Congress should pass a full-fat GRANITE that allows Americans to bring titanic lawsuits in response to titanic European and UK censorship fines. But Congress is really the enabler there.
While we wait for federal action, we recommend that states proceed building shields. The sword, if we’re to get one, will arrive when Congress amends the FSIA and gives American trial lawyers the ability to make foreign censorship the most expensive regulatory mistake a foreign government can make.
(Although, given that Ofcom has spent half a billion dollars and half a decade to build an apparatus to go after my clients, and so far hasn’t gotten a penny out of any of them, one could argue trying to censor Americans is already the most expensive mistake a foreign government can make.)
Recommendations to Congress
Split GRANITE Classic in two and move two bills: one “shield” bill and one “sword” bill.
