FBI Ignores Internal Guidelines To Target Readers Of Reporting On The Shooting Of FBI Agents (Updated)

from the WTF-FBI dept

For some reason, the FBI is targeting readers of reporting on a shooting of FBI agents -- something that's both inexplicable and an oblique assault on the First Amendment rights of those targeted. The news service is fighting back, as Josh Gerstein reports for Politico.

Newspaper publisher Gannett is fighting an effort by the FBI to try to determine who read a specific USA Today story about a deadly shooting in February near Fort Lauderdale, Fla., that left two FBI agents dead and three wounded.

The subpoena, served on Gannett in April, seeks information about who accessed the news article online during a 35-minute window starting just after 8 p.m. on the day of the shootings. The demand — signed by a senior FBI agent in Maryland — does not appear to ask for the names of those who read the story, if the news outlet has such information. Instead, the subpoena seeks internet addresses and mobile phone information that could lead to the identities of the readers.

The FBI says the information is needed for an ongoing "investigation." It's unclear what's being investigated since the shooter was killed by FBI agents after an hours-long standoff. Touching on another bit of Techdirt subject matter, the shooter -- who was being served a warrant for child porn possession -- may have been tipped off by his doorbell camera, perhaps prompting his violent response.

The information sought targets readers who accessed the story several hours after it was published and after the suspect had already been killed. The subpoena [PDF] served by the government shows Gannett immediately raised objections after being served with it, pointing out the FBI appeared to be skirting the DOJ's guidelines for seeking information from new sources, whether it involves journalists or readers.

Since the FBI refused to withdraw the subpoena, Gannett has taken this up with the court directly. The motion to quash [PDF] points out courts have repeatedly upheld protections for news readers, something that has helped American citizens sidestep the government's worst intentions, including the targeting of alleged Communists during the McCarthy-era "Red Scare."

Here's what the Supreme Court said more than 50 years ago:

A requirement that a publisher disclose the identity of those who buy his books, pamphlets, or papers is indeed the beginning of the surveillance of the press… The finger of the government leveled against the press is ominous. Once the government can demand of a publisher the names of purchasers of his publications, the free press as we know it disappears.

The same concerns are raised here, both by the FBI's actions and Gannett's response. While the FBI isn't technically seeking the disclosure of readers' identities (which may or may not be known by USA Today), it is seeking information that will allow the FBI to possibly identify readers. It's pretty much the same thing as telling Gannett to name names, even if the government is too intellectually dishonest to be upfront about it.

And, again, it's unclear what the FBI hopes to accomplish with this subpoena. It seems unlikely readers accessing the story hours after publication and a half-day after the shooter was killed had anything to do with the criminal acts the story covers. Not only that, but the agent issuing the subpoena works for the FBI's Child Exploitation Operational Unit -- content USA Today was very definitely not making available at its site. The whole thing is baffling which makes the constitutional concerns that much more severe. And the lack of immediately apparent investigative importance makes it that much more likely the DOJ's guidelines for targeting protected First Amendment activity were ignored.

UPDATE: The DOJ has withdrawn the subpoena, claiming it was able to identify the "child sexual exploitation offender by other means." While this is good news for Gannett and its readers, it still doesn't answer why the FBI thought the readers of this particular bit of reporting on an event that was covered across the nation included the suspect it was seeking.

Filed Under: 1st amendment, fbi, subpoena, usa today
Companies: gannett

DOJ Dropped Its Subpoena For NunesAlt Twitter Account One Week After Twitter Called Bullshit On Its Demands

from the so-long-and-thanks-for-all-the-wasted-tax-dollars-and-goodwill dept

Well, that was fast. I mean, this all actually happened a few months ago but the unsealing process makes this all seem very sudden.

Yesterday, it was revealed that the Trump DOJ sent a subpoena to Twitter demanding personal information related to the NunesAlt account -- one of several Rep. Devin Nunes has unsuccessfully tried to sue for defamation. It seemed very strange that the DOJ would be involved, but Nunes developed a close relationship with Trump over the past four years and it certainly appeared that this was some prime White House backscratching.

The subpoena was delivered to Twitter last November. On March 10, Twitter filed its motion to quash, noting Nunes' multiple attempts to sue satirical Twitter accounts, his lack of success in doing so, and his apparent attempts to use federal law enforcement resources to engage in discovery for him.

It also noted the DOJ's subpoena made no mention as to why Twitter should turn over this information. It wasn't until Twitter called the AUSA who signed the subpoena that it was provided answers. The answers were incomplete. The DOJ claimed it was part of an investigation into threats allegedly made by the account. But the DOJ refused to show Twitter the alleged threats, much less answer any of its other questions.

A week later (but only one day later for us, thanks to a gag order being tossed into the spacetime continuum), the DOJ dropped its request [PDF] for this Twitter users' info. As was the case with the subpoena sent to Twitter, there's not a whole lot of information in the DOJ's withdrawal of its information demand.

The United States of America, by and through its undersigned counsel, respectfully submits under seal this memorandum in opposition to Twitter, Inc.’s motion to quash grand jury subpoena and to vacate non-disclosure order.

On March 17, 2021, counsel for the United States informed counsel for Twitter, Inc. that the grand jury subpoena at issue is withdrawn. The term of the nondisclosure order has ended. As there is no dispute between the parties, Twitter, Inc.’s motion should be denied as moot.

Given this swift dismissal of its demand for info -- one supposedly tied to a super-serious investigation into "threatening communications in interstate commerce" (a complicated way of saying the internet was involved) -- it's difficult to believe this was anything other than a fishing expedition performed on behalf of Devin Nunes, who has had zero success talking courts into compelling the unmasking of his critics. If the DOJ really had anything worth investigating, it wouldn't have abandoned its efforts at the first sign of resistance.

And we can't let this whole thing pass by without noting how gag orders disrupt the justice system and keep the public from learning what's being done with their tax dollars. Finding out about something like this six months after it was initiated and two months after the DOJ called it quits is ridiculous. The only thing protected here was the DOJ's shoddy reputation as a mere extension of President Trump's will while he and Bill Barr were still in control. That the DOJ refused to show Twitter the alleged threats strongly suggests it was attempting to turn heated (but protected) speech into a criminal act to help Devin Nunes out with his defamation lawsuits.

Filed Under: devin nunes, doj, intimidation, nunesalt, satire, subpoena
Companies: twitter

FBI Got Access To Sci-Hub Founder's Apple Account

from the how-dare-people-get-academic-papers-without-paying! dept

The war against educating people without paying huge sums of money continues without pause. Over the last few years, we've written a bunch about Sci-Hub and its founder, Alexandra Elbakyan, including the fact that academic publishers have convinced the DOJ to investigate Elbakyan, claiming that this effort to (*checks notes*) give more academics free access to academic articles is... tied to Russian intelligence. The whole thing seemed bizarre. Sure, fine, people can make arguments about copyright -- but saying that it's connected to Russian intelligence seems like quite a conspiracy theory.

Either way, it appears that the "investigation" continues along. TorrentFreak alerts us that Apple has informed Elbakyan that the FBI now has access to her Apple account. She tweeted about the notification recently:

It does seem notable that the FBI subpoena to Apple took place back in early 2019 and Apple is only just now telling Elbakyan about it. At the very least, that suggests that the subpoena came with a fairly typical gag order not to alert the person being investigated. The fact that Apple now is free to alert her would seem to suggest that whatever gag order has ended. What that means for the investigation, though, is not at all clear (though, normally, you wouldn't think that the FBI would give up the gag order before the investigation ended).

It's also unclear what might be in that Apple account -- and what the FBI might have access too. While Apple regularly touts the (important) encryption on the phone, that does not mean that everything backed up to an iCloud account is encrypted. Much of it may not be.

If there actually was credible evidence of involvement with Russian intelligence, it wouldn't be that surprising that this subpoena happened, but without more information, it also looks like the FBI working over time for greedy private publishers who still can't stand that people might want academic papers without having to pay their extortionate prices.

Filed Under: academic research, alexandra elbakyan, apple account, fbi, subpoena
Companies: apple

DOJ Sent A Grand Jury Subpoena To Twitter Demanding The Unmasking Of A Twitter User Being Sued By Devin Nunes

from the lots-of-wtf-going-on-here dept

For the past couple of years, Devin Nunes has been suing Twitter users over obviously satirical accounts that use his name, the most famous of which is "Devin Nunes' Cow." He has yet to succeed, but he has managed to clutter the courts with a bunch of vexatious litigation that, so far, has only proved Devin's skin is mighty thin and that he should definitely make better choices when it comes to choosing legal representation.

I suppose if Nunes wants to blow money on lawsuits that are doomed to fail, that's his business. Unfortunately, the victims of his bullshit lawsuits are having their time and money sucked away by a man so apparently powerless he cannot handle criticism without getting the courts involved.

But there's a new wrinkle and some new dollars being spent. This latest development -- a few months delayed thanks to a gag order -- involves the expenditure of money contributed by a whole lot of non-parties: US taxpayers. One of the last things the Trump DOJ did before it became Biden's DOJ was send Twitter a grand jury subpoena demanding identifying information from one of the Twitter accounts being sued by Nunes. (h/t Kevin Poulsen)

Given Nunes was suing individuals in civil suits, it's hard to see how or why the Department of Justice got involved, much less why this is a grand jury issue. Sure, Nunes may have made wild allegations about RICO violations and illegal impersonation, but no one has made any credible allegations about actual criminal activity, much less federal crimes.

And yet, here we are, looking at the DOJ's (granted) request [PDF] to keep Twitter from talking about this subpoena (dated November 23, 2020) and Twitter's motion [PDF] to quash the ridiculous, First Amendment threatening demand for account information.

The only thing that can be confirmed about the DOJ's (apparently ongoing) investigation is that the government believes the NunesAlt account said something threatening to someone (presumably Nunes) at some point in time. Not that the DOJ bothered to explain any of this in its subpoena.

The Gag Order prohibits Twitter from “disclos[ing] the existence of the Subpoena to any other person (except attorneys for PROVIDER for the purpose of receiving legal advice) for a period of 90 days (commencing on the date of this Order)” because it finds “reasonable grounds to believe that such disclosure will result in flight from prosecution, destruction of or tampering with evidence, intimidation of potential witnesses, and serious jeopardy to the investigation.” Schottlaender Decl., Ex. B. The Gag Order does not describe the basis for this finding, and Twitter has not received any information from the government about the “reasonable grounds” upon which the Gag Order was based.

Twitter had to approach the DOJ to get clarification. It got some, but not much.

Twitter’s counsel asked whether the government could offer any information about its investigation that may alleviate Twitter’s concerns. Counsel for the government stated that he understood Twitter’s concerns and would attempt to learn more about the investigation and about what he could share with Twitter. Shortly thereafter, the government stated that it was investigating “potential violations of 18 U.S.C. Section 875(c) (threatening communications in interstate commerce).” Twitter asked whether the government could share the threatening communications at issue, or otherwise state whether those threats had been directed to Congressman Nunes. The government replied that it would not provide any additional information about its investigation.

That's the basis for the grand jury. And without more, it seems like a pretty specious use of federal resources. Plus, as Twitter points out in its motion to dump the subpoena, this seems to be more about making critics of Nunes feel threatened than about any threats Nunes (or someone else) received.

It appears to Twitter that the Subpoena may be related to Congressman Devin Nunes’s repeated efforts to unmask individuals behind parody accounts critical of him. His efforts to suppress critical speech are as well-publicized as they are unsuccessful. He recently sued Twitter, attempting to hold it liable for speech by the parody Twitter accounts @DevinCow, @DevinNunesMom, @fireDevinNunes, and @DevinGrapes, and asking the court in that case to order Twitter to disclose information identifying those accounts. Each of these accounts were engaged in anonymous political speech critical of Congressman Nunes. That suit was dismissed against Twitter in June 2020 because Twitter cannot be liable for information originating with a third-party user of its service, but it appears to still be an active lawsuit against the Twitter users @DevinCow and @DevinNunesMom. Shortly thereafter, Twitter received the Subpoena. Public Tweets posted by the Account indicate that it may be operated by the same user as @DevinNunesMom. Congressman Nunes’s attorney also sought third-party discovery from Twitter to unmask the @DevinCow account in an entirely unrelated case.

Given Congressman Nunes’s numerous attempts to unmask his anonymous critics on Twitter—described in detail herein—Twitter is concerned that this Subpoena is but another mechanism to attack its users’ First Amendment rights. Recent litigation also alleges that Congressman Nunes may be using the government to unmask his critics. See Declaration of Hayden Schottlaender (“Schottlaender Decl.”), Ex. D. Twitter respectfully asks the Court to determine whether the government has a “compelling interest” in obtaining the Account’s basic subscriber information, or, on the other hand, is endeavoring to unmask someone merely for engaging in speech critical of Congressman Nunes.

That's really what appears to be happening here. The DOJ decided to work on the behalf of Devin Nunes, using unproven claims of issued threats as the foundation for demands for personal info. Sure, it may just be a coincidence that the DOJ is targeting one of Nunes' critics (and lawsuit defendants), but it's asking a lot from everyone to believe this coincidence had nothing to do with the Congressman's tireless support of Donald Trump and the DOJ's own obeisance to Number 45 during Bill Barr's tenure as the Attorney General.

Twitter's concern is plausible: the DOJ was mobilized to target a critic of a powerful lawmaker over what is likely protected speech. The DOJ needs to act in utmost caution in cases like this. And maybe it did. But even if it's completely in the right, Nunes and his constant suing of critics make it difficult to see this as anything other than the federal government getting into the business of keeping Devin from having his feelings hurt.

Filed Under: 1st amendment, devin nunes, doj, donald trump, intimidation, parody, satire, subpoena, unmasking, william barr
Companies: twitter

ICE Withdraws Demand For Journalists' Sources After Having Its Unconstitutional Demand Outed By BuzzFeed

from the government-is-kindly-invited-to-go-fuck-itself dept

They say "sunshine is the best disinfectant." Sometimes, though, sunshine is the best RAID. When you've got government cockroaches (feel free to pronounce it like Tony Montana) trying to crawl all over your stuff, the best thing you can do is point all the wattage/candlepower you can on its indiscretions.

Earlier this month, ICE tried to pull some fucked up shit. It sent a subpoena -- one issued by its office, not a judge -- to BuzzFeed. It asked the journalists there to turn over information on their sources, apparently in hopes of closing the loop on internal investigations into leaked documents.

BuzzFeed refused. Even better, BuzzFeed posted the bullshit "request" ICE made -- one that asked the site's journalists to remain silent in the face of government overreach. The subpoena came with this request appended;

“You are requested not to disclose the existence of this summons for an indefinite period of time. Any such disclosure will impede this investigation and thereby interfere with the enforcement of federal law.”

BuzzFeed ignored this, along with the rest of the subpoena. Which it should. This was just internal paperwork masquerading as a government-sanctioned order. ICE has no legal right to demand information on BuzzFeed's sources. It seems highly unlikely any court would allow this incursion on First Amendment protections. Bypassing the court by issuing its own paperwork shouldn't be allowed. But somehow it is. Journalistic concerns know these requests are worth less than the paper they're printed on. The problem is that not everyone knows that and degenerates like ICE are counting on people being ignorant of their Constitutional rights and protections.

BuzzFeed knows what the government can and can't do without judicial blessing. So it published its refusal along with ICE's faux "demand" it remain silent about the agency's attempted Constitutional bypass. In response to its garbage being made public domain, ICE has rescinded its attempt to turn confidential sources into government witnesses/prosecution targets.

Immigration and Customs Enforcement officials said Wednesday that it would not enforce a subpoena issued last week demanding BuzzFeed News identify its sources, a retreat from its earlier, stunning attempt to interfere with a news outlet operating under the protections of the First Amendment.

By "won't," ICE means "can't." It would be the rare judge that would approve of ICE violating long-held First Amendment protections for journalists and their sources. Even if they found a compliant judicial pawn, any challenge by BuzzFeed would see this bogus subpoena tossed onto the trash heap of ICE's trash history by the next judge down the line.

The government cannot do this. And the government knows this. That ICE even tried indicates it's been huffing whatever the Trump administration has been shoving into its paper bags. Just because the outgoing Prez has a hard-on for booting brown people out of the country doesn't change the Constitutional calculus.

Filed Under: dhs, ice, journalism, protecting sources, sources, subpoena
Companies: buzzfeed

ICE Sends Subpoena To BuzzFeed, Hoping To Force It To Turn Over Its Sources

from the going-nowhere-with-this-but-still-a-problem dept

Four years of Trump was more than enough time to weaponize federal agencies against journalists. The administration has routinely condemned critical press outlets as "fake news" and Trump's fervent embrace of border patrolling made it easier for the DHS and its agencies to abuse their power.

The Constitution doesn't seem to matter much to those "securing" the nation. The CBP put a bunch of journalists, activists, and immigration lawyers on a watchlist, subjecting them to additional intrusive searches at border crossings and airports. The DHS tried to top this by compiling dossiers on journalists who covered anti-police brutality protests in Oregon, as well as journalists who had published leaked DHS documents.

The assault on the Constitution continues, with another DHS component deciding the protections given to journalists aren't nearly as important as figuring out who's leaking government documents.

Immigration and Customs Enforcement investigators issued a subpoena this week demanding BuzzFeed News identify its sources — an extraordinary attempt by the government to interfere with a news outlet acting under the protections of the First Amendment, and a move that the agency’s former chief lambasted as “embarrassing.”

[...]

The subpoena, issued on Dec. 1 by an agent with the ICE Office of Professional Responsibility, concerns emails sent to ICE attorneys on a fast-track deportation program and plans to fine certain undocumented immigrants. It demands that BuzzFeed News “provide all documentation including, but not limited to: (1) date of receipt, (2) method of receipt, (3) source of document, and (4) contact information for the source of the document.”

BuzzFeed has refused to comply with this subpoena. It has also apparently ignored the gag order ICE attached to its demand for info. Not that it was much of a gag order. It "requested" BuzzFeed not disclose the contents of the subpoena but, like the subpoena itself, it's pretty much unenforceable.

A court didn't issue this request. ICE did. It can write its own subpoenas but it really can't make anyone comply without getting a court involved. And it seems unlikely ICE will get a court involved because very few courts are going to sign off on obvious First Amendment violations.

But even if it's useless, it's still a problem. ICE could try to get courts involved and turn journalists into extensions of internal investigations. It could mass mail subpoenas to as many press outlets as it can, hoping for a hit. The problematic part isn't how badly it's being done, but that it's being done at all.

Filed Under: 1st amendment, freedom of the press, ice, intimidation, journalism, source protection, sources, subpoena
Companies: buzzfeed

Ted Cruz Once Insisted That Net Neutrality Was The Gov't Takeover Of The Internet; Now Demands That Twitter Host All Nonsense

from the that's-not-how-any-of-this-works dept

I guess Senator Ted Cruz was getting jealous of Senator Josh Hawley for monopolizing the "I'm a constitutional lawyer who doesn't understand the 1st Amendment when it comes to internet content moderation" space, and has jumped in as well. He has announced that he's going to issue a subpoena to get Jack Dorsey to come justify what he falsely claims is "election interference."

Let's be clear here. Like Senator Hawley yesterday, Senator Cruz is full of shit. And, like Hawley, Cruz is a constitutional lawyer who knows this is bullshit. Like Hawley, Cruz has now sent silly, laughable letters to Twitter and Facebook.

And, of course, it really was not that long ago when I remember this very same Ted Cruz screaming about the evils of the "government takeover of the internet." To him, the idea of net neutrality was "Obamacare for the internet" and he decried:

Washington politicians want the money, and they want more and more control over our speech.

That... describes Ted Cruz trying to punish a company for its editorial decisions. That same article has some other choice quotes that can now be thrown back at him:

[W]e must promote growth in the technological sector, a consistent bright spot for the U.S. economy. But we won’t realize more of that dynamic growth unless we keep the Internet free from the kind of unnecessary regulation that is strangling our health-care, energy and banking industries.

And yet, here he is threatening regulations to strangle growth of the technology sector.

In 2012, those who care about Internet freedom were shocked as bills such as the Stop Online Piracy and Protect IP acts, which would regulate speech on the Internet under the guise of protecting property rights, started gaining popularity in Washington. Thankfully, online activists were quick to mobilize to protect their free-speech rights. But we must remain vigilant. Intellectual property must be defended, but any threat to quell speech on the Internet must be treated seriously and subsequently defeated.

The same activists who were "shocked" by SOPA and PIPA are the ones pointing out that Ted Cruz's attacks on Section 230 are an even bigger threat to quell speech on the internet and need to be treated seriously and defeated. It's just that Ted Cruz is the one now championing these efforts at censorship.

And for anyone trying to defend Ted Cruz right now, here's a basic question: how would you respond if a Democratic Senator stood up and said he or she was going to subpoena the CEOs of Fox News or Breitbart to discuss their "bias" in covering the election? People would be throwing an absolute and total shitfit about how unconstitutional that is. And yet, here we have a Republican Senator threatening a company for its own editorial decisions. Ted Cruz's grandstanding on this issue is, itself, a violation of the 1st Amendment. It is an attempt to punish a private company for its own 1st Amendment protected editorial discretion. And no one should let a grandstanding Cruz get away with this nonsense.

Filed Under: 1st amendment, content moderation, hypocrite, net neutrality, section 230, subpoena, ted cruz

Court Orders Chelsea Manning Released From Jail One Day After Suicide Attempt: Testimony 'No Longer Needed'

from the what-a-waste dept

A year ago, the DOJ subpoenaed Chelsea Manning to appear before a grand jury and provide testimony as it was building its case against Julian Assange, who was subsequently indicted on a very questionable basis. Manning refused to comply with the subpoena, and was put in jail for contempt of court. Many people -- even some supporters of Manning -- seemed split on this move, noting that complying with a lawful subpoena, especially regarding a situation where all information had been previously provided and in which the target is already indicted, is different than being asked to cough up private info. But, given the context of Manning's earlier incarceration and commutation, the whole effort seemed somewhat vindictive.

As reporter Dell Cameron pointed out, the DOJ already has all the details of Manning's conversations with Assange. It's difficult to see what more it needed to get from her. And yet, she sat in jail. And considering her history with possible suicide attempts, it seemed (tragically) that being confined again could be incredibly damaging to her. Indeed, yesterday it was reported that she attempted suicide once again.

Incredibly, just a day later, the court has ordered her released from jail, noting that her appearance "is no longer needed."

Upon consideration of the Court's May 16, 2019 Order, the Motion, and the Court's March 12, 2020 Order discharging Grand Jury 19-3, the Court finds that Ms. Manning's appearance before the Grand Jury is no longer needed, in light of which her detention no longer serves any coercive purpose. The Court further finds that enforcement of the accrued, conditional fines would not be punitive but rather necessary to the coercive purpose of the Court's civil contempt order.

The fact that the grand jury has been disbanded without her testimony -- and given Dell's point earlier about the DOJ already having all the details -- it makes you really question why this whole thing was necessary in the first place, because the answer sure seems to be that it wasn't. And yet, she spent months in jail, and still now faces basically a quarter of a million in fines that the court says is just dandy. What a sham.

Filed Under: chelsea manning, contempt of court, doj, julian assange, subpoena

Public Citizen Weighs In On Why Court Should Protect @DevinCow's Information Under The 1st Amendment

from the satirical-cows-get-free-speech-protection-too dept

As lawyer Steven Biss continues to use one lawsuit to seek to identify the person or people behind a satirical internet cow that he's trying to unmask in another case, Public Citizen's Paul Levy has now filed an amicus brief arguing that identifying who is behind the @DevinCow account (along with two other pseudonymous accounts) would violate the 1st Amendment. While the brief makes a nod towards the point that the @DevinCow account seems entirely unrelated to the case at hand -- between PR guy Trevor FitzGibbon and lawyer Jesselyn Radack -- its arguments focus on the fact that, even if @DevinCow had communicated with Radack, the subpoena that Biss sent to Twitter on behalf of FitzGibbon would violate 1st Amendment protections for anonymity.

Full First Amendment protection applies to communications on the Internet, and longstanding precedent recognizes that speakers have a First Amendment right to communicate anonymously, so long as they do not violate the law in doing so. Thus, when discovery seeks to identify an anonymous speaker, courts must balance the right to obtain redress from alleged perpetrators of civil wrongs against the right to anonymity of those who have done no wrong – and when the discovery targets are third-party witnesses, they are, by definition, speakers who have done no wrong. In cases such as this one, these rights come into conflict when a plaintiff seeks an order compelling disclosure of a speaker’s identity, which, if successful, would irreparably destroy the speaker’s First Amendment right to remain anonymous.

In such cases, identifying an unknown speaker is not merely the first step toward establishing a defendant’s liability for damages. Identifying the speaker gives the plaintiff immediate relief as well as a powerful new weapon, because it enables him to employ extra-judicial self-help measures to counteract both the speech and the speaker. It also creates a substantial risk of harm to the speaker, who forever loses the right to remain anonymous, not only on the speech at issue, but with respect to all speech posted with the same pseudonym. Moreover, the unmasked speaker is exposed to efforts to punish or deter his speech. For example, an employer might discharge a whistleblower, or a public official might use influence to retaliate against the speaker. Indeed, given the tenor of many online conversations, public exposure might lead a given individual to become the target of threats, doxxing and the like. Similar cases across the country, and advice openly given by lawyers to potential clients, demonstrate that access to identifying information to enable extra-judicial action may, in many cases, be the only reason plaintiffs bring many such lawsuits at all.

As Levy lays out in the brief, under no existing legal standard, should the court have Twitter identify @DevinCow and the other account holders.

Fitzgibbon’s subpoena cannot meet this standard. First, the aspect of the subpoena that seeks identifying information for @DevinCow strongly suggests bad faith. @DevinCow is a Twitter account holder who is a defendant in a different lawsuit, now pending in state court, in which a different plaintiff, also represented by Stephen Biss, counsel for plaintiff Fitzgibbon in this case, has been frustrated in his efforts to use Virginia state subpoenas to compel the identification of that defendant. The subpoenas have not succeeded, in part because Mr. Biss has not complied with Virginia’s statutory procedure for such subpoenas—which do not apply in federal court—but also in part because he has not met the First Amendment standard for identifying anonymous speakers who have been sued for their speech. The justifications set forth in Fitzgibbon’s opposition to the motion to quash do not come close to showing any basis for believing that @DevinCow has had any involvement in making any false statements about Fitzgibbon or of that she has any evidence bearing on the claims by or against Fitzgibbon; the use of the subpoena in this case to identify @DevinCow is a transparent ruse. The significant indications of bad faith infect the validity of the entire subpoena, not just the aspect seeking to identify @DevinCow.

Second, the effort to discover the identities of @DevinCow, @jimmysllama and @Kaidinn, and to obtain location and other potential identifying information about the owners of twenty-two additional Twitter accounts, is not pursued in aid of Fitzgibbon’s core claims, for defamation and breach of contract. Discovery is sought in aid of Fitzgibbon’s claim that Radack is liable for having conspired to defame him with various third parties, who are not named as defendants in this litigation. But under Virginia law, a conspiracy to commit a tort is actionable only if the plaintiff can also succeed on the underlying tort claim, here defamation.... Similarly, under Hustler Magazine v. Falwell, 485 U.S. 46 (1988), and Food Lion v. Capital Cities/ABC, 194 F.3d 505, 522 (4th Cir. 1999), a tort claim that seeks damages for injury to reputation can succeed only if the claim meets First Amendment standards for a defamation claim. In effect, then, Fitzgibbon’s civil conspiracy claim against Radack is one that piggybacks on his defamation claim and may, assuming that Radack has sufficient assets, provide an additional claim for damages. But discovery in aid of additional damages does not pertain to a core claim and hence does not provide a basis for overriding the right to speak anonymously....

Third, Fitzgibbon has not shown that he has exhausted alternate sources of information that would not require imposing on the First Amendment rights of third parties. Other courts have said that “‘an alternative requiring the taking of as many as 60 depositions might be a reasonable prerequisite to compelled disclosure.’” In re Petroleum Products Antitrust Litig., 680 F.2d 5, 9 (2d Cir. 1982), quoting Zerilli v. Smith, 656 F.2d 705, 714 (D.C. Cir.1981). So far as the record reflects, his only discovery efforts to date seeking to obtain Radack’s alleged conspiratorial communications consists of sending her written discovery requests to which, his brief alleges, defendant Radack has refused to respond. His brief further asserts, at 44, 53, 57, without providing admissible evidence to support his contentions, that Radack has been guilty of spoliation and hence cannot be trusted to produce evidence voluntarily. He does not explain why he has not moved to compel discovery from Radack, including, if necessary, pursuing forensic examination of her electronic equipment. Moreover, if Radack has been guilty of spoliation as Fitzgibbon alleges, the sanctions for such spoliation could easily be a sufficient route to establish her liability, making it wholly unnecessary to impose on the free speech rights of innocent third parties. The Eastern District docket sheet does not reflect the filing of any motion to compel discovery or to seek sanctions for alleged spoliation. https://www.courtlistener.com/docket/16048358/fitzgibbon-v-radack/. The very fact that Fitzgibbon has not pursued such alternate means to establish his claims against Radack gives ground to infer that other motives might be afoot.

One hopes that the court already knows and understands this -- but it's good to see Public Citizen and Levy weighing in so clearly. Either way, as Levy reminds us, it's yet another example of how Virginia is a target for libel tourism these days.

Filed Under: 1st amendment, anonymity, devin nunes, devincow, jesselyn radack, steven biss, subpoena, trevor fitzgibbon
Companies: twitter

Well Then: Activision Issues DMCA Subpoena To Have Reddit Unmask Whoever Posted That CoD Image Leak

from the the-nuclear-option dept

Well, okay then. We had just been discussing Activision's silly attempt to DMCA to death a leaked image purporting to be the cover art or marketing material for a new Call of Duty game. The whole thing was idiotic in that once word got around that Activision was trying to bury the leak, it immediately caused everyone to think the image was for a real game, rather than some faked pretend leak, which is a thing that sometimes happens. From there, reporting and reproduction of the image in question went mildly viral. In other words, Activision Streisanded the leak it was attempting to bury. Pretty dumb.

But it turns out that Activision isn't screwing around. There were some in our comments who posited that perhaps this was some marketing attempt to create virality of the image. That certainly doesn't appear to be the case, as Activision has issued a subpoena to have Reddit unmask the user who posted the image.

In a filing on February 14, 2020 at a California district court, attorneys acting for Activision requested a DMCA subpoena against Reddit.

“Petitioner, Activision Publishing, Inc. through its undersigned counsel of record, hereby requests that the Clerk of this Court issue a subpoena to Reddit, Inc. to identify alleged infringers at issue, pursuant to the Digital Millennium Copyright Act (‘DMCA’), 17 U.S.C. § 512(h),” the request reads.

“The DMCA Subpoena is directed to Reddit, Inc. Reddit is the service provider to which the subject of the subpoena – Reddit user ‘Assyrian241O’ – posted infringing Activision content.”

At first, it's hard to see how this makes any sense. Yes, it surely must be annoying to a content creator to have any plans for future content to be upended by a leak. On the other hand, first DMCAing that leak in a failed attempt to bury it, and then going to the lengths of unmasking a Reddit poster is surely the nuclear option when it comes to how to handle a leak of game art.

Except, it seems, this might not be about the Reddit post itself so much as where the leak originally came from.

Contrary to the initial claim, that the user “found this image online”, he or she later confessed to it being sent to them by an “inside source”. That raises the question of who Activision is more interested in – the Reddit user or the person who sent them the image, possibly from inside Activision or a related company.

In other words, this is all looking like an attempt to unmask the leaker of the image, not the Reddit user. Still, these are extreme lengths to go to combat a leak that would have barely been noticed had Activision not gone into legal rage mode.

Instead, the company could have chosen to try to use this all as a marketing opportunity, as comments on the previous post thought they had.

Filed Under: call of duty, dmca, dmca subpoena, leaks, subpoena
Companies: activision, reddit