When the backlog of potential enforcement actions is 1000x longer than what the agency can handle, enforcement, by definition, is discriminatory. Everybody *could be* in violation of something so the power is in controlling the sort order of the backlog. Who controls the sort?
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I couldn't figure out how the "Twitter-sleuth" evidence of discriminatory SEC behavior could fit into the Ripple case.
So, I re-read the Fox case and found this article on it and... THERE IT WAS.
In a sense, "discriminatory enforcement" IS evidence of lack of Fair Notice.
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