Yes, A Billionaire Looking To Destroy A Media Organization Through Lawsuits Is A Big Deal Even If You Don't Like The Media Organization

from the slapp dept

So I had thought that our post yesterday about Peter Thiel allegedly financing Hulk Hogan's lawsuit against Gawker would be the only time we posted about that story, but a few things have happened that seem to merit a further post. First, Thiel has admitted to it, and insisted that he views it as "philanthropy." There are a number of claims that Thiel makes that are quite troubling. First, he admits that he didn't just back Hogan, but rather gave lawyers money to go hunting for anyone who might want to sue Gawker, directly out of spite.

He said that he hired a legal team several years ago to look for cases that he could help financially support. “Without going into all the details, we would get in touch with the plaintiffs who otherwise would have accepted a pittance for a settlement, and they were obviously quite happy to have this sort of support,” he said. “In a way very similar to how a plaintiff’s lawyer on contingency would do it.” Mr. Thiel declined to disclose what other cases he had supported but there are at least two current cases against Gawker.

Later on he admits: "It's safe to say this is not the only [case]."

This also seems ethically dubious, even if it's perfectly legal. I, frankly, don't have a huge concern over people funding others' lawsuits. While it can be abused, you can also see where it could be helpful for people who otherwise couldn't afford the legal costs. That said, specifically funding lawyers to go hunting for plaintiffs with the deliberate intent of killing a media publication? That's problematic. And that's true no matter how terrible you think Gawker is as a media property.

Incredibly, Thiel, who has given a large amount of money to the Committee to Protect Journalists, and who has claimed to be a big supporter of freedom of expression and freedom of the press, pulled a classic "I support freedom of speech, but..." line in response to questions along those lines, basically saying that he doesn't think Gawker counts.

He said he did not believe his actions were contradictory. “I refuse to believe that journalism means massive privacy violations,” he said. “I think much more highly of journalists than that. It’s precisely because I respect journalists that I do not believe they are endangered by fighting back against Gawker.”

He continued, “It’s not like it is some sort of speaking truth to power or something going on here. The way I’ve thought about this is that Gawker has been a singularly terrible bully. In a way, if I didn’t think Gawker was unique, I wouldn’t have done any of this. If the entire media was more or less like this, this would be like trying to boil the ocean.” Mr. Thiel said he had not targeted any other media companies.

And this brings me to the second reason I'm posting more on this story: a surprising number of people (to me) keep supporting Thiel in this, and arguing that because what Gawker did was so horrible that this vendetta against them is okay. This is dangerous thinking. And I wanted to dig in on why it's so dangerous. First, there's the obvious: freedom of expression is supposed to protect the speech you dislike the most. Otherwise, we wouldn't need it. Carving it out because he thinks they're "bullies" is the kind of stuff that the First Amendment doesn't allow.

Second, the idea that this won't impact other journalism organizations is hogwash. As Felix Salmon wrote, this gives other billionaires a "dangerous blueprint" to be vindictive against any publication they dislike. Basically, he notes that publications are always extra careful about writing about notoriously litigious billionaires. But Thiel's plan is much more dubious: just have lawyers watching for anyone else who may be aggrieved, where a publication maybe wasn't quite as careful, and then mount a series of lawsuits, some perhaps more dubious than others (hold that thought...) to bury the company in legal expenses. Salmon points out that this opens up a huge number of possibilities for others:

If Thiel’s strategy works against Gawker, it could be used by any billionaire against any media organization. Sheldon Adelson, Donald Trump, the list goes on and on. Up until now, they’ve mostly been content suing news organizations as plaintiffs, over stories which name them. But Thiel has shown them how to go thermonuclear: bankroll other lawsuits, as many as it takes, and bankrupt the news organization that way. Very few companies have the legal wherewithal to withstand such a barrage.

Both Sheldon Adelson and Donald Trump have done vindictive SLAPP suits against news publications that have said things they didn't appreciate. And then there was the infamous case of billionaire Frank VanderSloot who waged a years long SLAPP legal campaign against Mother Jones over reporting he didn't like.

Josh Marshall, over at Talking Points Memo also does a good job of showing why this is so concerning:

Regardless of his politics, this news should disturb everyone. People talk a lot about the dominance of the 1% or in this case more like a tiny fraction of the 1%. But being able to give massive political contributions actually pales in comparison to the impact of being able to destroy a publication you don't like by combining the machinery of the courts with anonymity and unlimited funds to bleed a publication dry.

We don't have to go any further than Donald Trump to know that the incredibly rich often use frivolous litigation to intimidate critics and bludgeon enemies. Mother Jones had a lawsuit like this, clearly intended to bleed them dry through endless legal expenses. They won, though at a steep cost. But when bully plutocrats do so in their own name there is at least a self-correcting dynamic at work. A plaintiff in a libel suit opens him or herself up to reputational harm and highly intrusive legal discovery which is often enough to scare people away. (Remember, when Trump sued Tim O'Brien for publishing Trump insiders' claims that Trump was worth less than $250 million dollars, Trump was eventually forced to show O'Brien's lawyers his tax returns.) In some ways, this lines up with something I noted in my 'Brittle Grip' series of posts: growing calls from the extremely rich to not only be able to use their money without limit to shape the political process but to do so anonymously to avoid being "intimidated" or "vilified".

And even if you still think it's okay because (1) Gawker is awful or (2) "publishing a sex tape shouldn't be protected," consider, again, that Thiel has admitted that he's funding more lawsuits against Gawker. I currently know of at least four other lawsuits against Gawker -- with at least three of them using the same lawyer as Hogan used. And those lawsuits are ridiculous. We've written about both the Shiva Ayyadurai lawsuit (with the same lawyer) in which he's mad that Gawker accurately pointed out that Ayyadurai did not invent email, and the laugh out loud bad lawsuit by Chuck Johnson against Gawker. For what it's worth, Ayyadurai denies knowledge "of any behind-the-scenes financial arrangements involving my attorneys and anyone else." So perhaps Thiel is not funding his lawsuit, but with Thiel admitting to funding others, there aren't that many other choices.

Taken as a whole, this takes SLAPP (Strategic Lawsuits Against Public Participation) to entirely new levels. Flooding the zone with lawsuits, even if some have validity, with the sole admitted purpose of trying to destroy a publication you don't like has tremendous chilling effects on the press. Wired, with its tongue firmly in cheek, made this point fantastically with an article entitled How Can We Make You Happy Today, Peter Thiel? which is paragraph after paragraph of this kind of thing:

If you don’t know who Peter Thiel is, set your swoon-sockets to Stun, because Peter Thiel is the best—just an awesome, handsome, awesome guy—and we would never want to give the impression that we think otherwise. See how happy he is in this picture below? That’s how we want him to look every time he thinks about his ol’ buddies at Wired: “Great, great team. Total pros. Definitely not gonna get mad and team up with a former wrestler to secretly bankroll a lawsuit against them, and all because I didn’t like what they said about me.”

Three cheers for Peter Thiel!

Yes, it's exaggerated for comedic purposes, but the chilling effect can be very, very real. Publications that don't want to face such a vindictive campaign are going to stay silent. And that's a serious concern.

Meanwhile, Elizabeth Spiers highlights another point on all of this, focusing mainly on the fact that Thiel's response is massively out of proportion to any actual harm. Her focus is on whether or not this activity coming to light should worry entrepreneurs who work with Thiel, suggesting "I have no sense of proportionality, and might go completely apeshit on you for the slight infraction, or if godforbid we just have a simple misunderstanding."

Or, as a way of summing it up, if you think that it's okay for Thiel to do this because you think that Gawker consists of a bunch of jackasses, be afraid, because there's someone out there who thinks you're a jackass too. And just hope they're not a billionaire who has the free resources to wait for any attempt to destroy you... and then call it "philanthropy."

Hate on Gawker all you want. But this blueprint of trying to bury a company in legal fees, just out of spite, should worry everyone if you believe in freedom of the press. There's a reason that we're so concerned with typical SLAPP suits, and why we keep asking for stronger state anti-SLAPP laws and a federal anti-SLAPP law. Thiel's actions make this even more important today than ever before.

Filed Under: billionaires, chuck johnson, free press, hulk hogan, lawsuits, peter thiel, shiva ayyadurai, slapp, threats
Companies: gawker

At The Behest Of Big Pharma, US Threatens Colombia Over Compulsory Licensing Of Swiss Drug

from the destroying-lives,-destroying-peace dept

As Techdirt readers well know, Big Pharma really hates compulsory licensing of its patented drugs, where a country steps in and allows an expensive drug to be made more cheaply in order to provide wider access for its people. Such massive pressure is applied to nations contemplating this move, that even global giants like India quail. A new story is unfolding that reveals just how far companies are prepared to go in order to prevent it from happening. It concerns Colombia's possible use of a compulsory license for the drug imatinib, sold under the name Glivec, and used to treat leukemia. Despite the fact that the company holding patents on the drug, Novartis, is Swiss, the US has started to lean heavily on Colombia in order to persuade it not to go ahead with the move.

KEI has obtained a copy of a letter from Andrés Floréz at the Embassy of Colombia in Washington, DC, to the Minister of Health in Colombia, reporting on a meeting between embassy officials and Everett Eissenstat. He's the Chief International Trade Counsel for the US Senate Committee on Finance, under Senator Orrin Hatch. Apparently, Eissenstat conveyed quite forcefully his views on the negative consequences for Colombia if it decided to issue a compulsory license on the cancer drug Glivec:

Eissenstat mentioned that although Novartis is not an American company, the US pharmaceutical industry was very worried about the possibility that the case would become a precedent that could be applied to any patent in any industry which, according to him, could lead to the reputation of our country's respect for intellectual property rights being viewed as impaired and Colombia becoming one among those countries that would have special treatment...

Einssenstat also mentioned that, if the Ministry of Health does not correct this situation, the US pharmaceutical industry and related interest groups could become very vocal and interfere with other interests that Colombia could have in the US.

Nice little country you have there -- be a shame if something happened to it. Stat News mentioned a couple of forms that "special treatment" might take:

A free-trade treaty between the two countries went into effect four years ago, which obligates Colombia to comply with various international trade laws. Florez also cautioned that issuing a compulsory license for the Novartis drug may "weaken support" for bringing Colombia into the Trans-Pacific Partnership, a trade pact between 12 countries in the Asia and Pacific regions that must still be approved by Congress.

But the most extraordinary threat is the following, reported here by KEI:

Senator Hatch was so opposed to the idea of a compulsory license on the patent for a $40+ Billion cancer drug made by a Swiss company that he was willing to find an extremely sensitive area for the Colombian people and use it as leverage. The [Paz Colombia] peace process in question is the hopeful conclusion to decades of fighting in the country with guerrilla rebels that has led to hundreds of thousands of deaths.

The US is willing to jeopardize the entire "Paz Colombia" peace plan, all because Big Pharma is outraged a developing country might dare to use its international right to issue a compulsory license. As KEI Director James Love commented:

The use of these back channel methods of conveying threats and pressure is common, and the leak of these two letters provides insight into why governments that have the right to issue compulsory licenses rarely do. The fact that after meeting with Eissenstat, the Colombian Embassy connects the patent dispute to the funding of the Colombian peace process illustrates how the United States can link health and national security together in ways that a harmful to both.

It can surely only be a matter of time before Colombia obediently toes the line, and recognizes that Big Pharma's patents and profits are much more important than the health and lives of its people.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: colombia, compulsory licensing, everett eissenstat, glivec, health, orrin hatch, threats, trade agreements
Companies: novartis

Namespaces, Intellectual Property, Dependencies And A Big Giant Mess

from the yikes dept

There's been a bit of a mess in the programming world, the past few days, that you may have missed if you don't pay close attention to certain circles of the internet, but it's fascinating on a number of different levels. The mess began when people at the messenger app Kik, realized that someone else, a guy named Azer Koculu, had a module on NPM named "kik." Some background: NPM stands for Node Package Manager -- and that's exactly what it is: a package manager/repository for programmers to share and reuse javascript code, useful for folks using node.js (a server side javascript environment). This is a good thing as it allows for fairly easy opportunities to share code and build on the work of others without having to reinvent the wheel.

However, a "patent agent" (not a lawyer) at Kik then reached out to Koculu about the possibility of changing the name of his "kik" module, saying:

Azer: We’re reaching out to you as we’d very much like to use our name “kik” for an important package that we are going to release soon. Unfortunately, your use of kik (and kik-starter) mean that we can’t and our users will be confused and/or unable to find our package.

Can we get you to rename your kik package?

Bob Stratton

kik Interactive

Azer saw that the request came from a "patent agent" and, believing it was an intellectual property lawyer, told him he had no interest in changing the name:

Sorry, I’m building an open source project with that name.

It appears that there were a few initial misunderstandings already here. Both in whether it was a lawyer making the request and with respect to the nature of the request (and that Kik is looking to release its own open source code on npm, rather than just acting like an all-too-typical trademark bully). And it gets worse almost immediately as Stratton responds in exactly the wrong way, by moving to a pretty clearly implied legal threat:

We don’t mean to be a dick about it, but it’s a registered Trademark in most countries around the world and if you actually release an open source project called kik, our trademark lawyers are going to be banging on your door and taking down your accounts and stuff like that — and we’d have no choice but to do all that because you have to enforce trademarks or you lose them.

Can we not come to some sort of a compromise to get you to change the name without involving lawyers? Is there something we could do for you in compensation to get you to change the name?

Bob Stratton

kik Interactive

Bringing up trademark and trademark lawyers at this point is stupid, but depending on how you read this you could see how Stratton actually meant it to be more explanatory, as in "Hey, let's talk about this," but it pretty clearly comes off as "Hey, give me what I want... or else big mean lawyers." And the latter is exactly how Koculu took it, responding: "hahah, you’re actually being a dick. so, fuck you. don’t e-mail me back."

At that point Kik and Stratton reached out directly to NPM (though along with one more attempt to reach out to Koculu, including offering to compensate him for changing the name -- which is actually a reasonable request, if it had come prior to threatening with lawyers), and after reviewing the exchange NPM did something something surprising to many: it decided that Kik was in the right, and handed over the kik name to the company. Here was their email:

Hi, Azer.

I hear your frustration. The desire to continue to use the kik and kik-starter package names, is clear.

Our goal is to make publishing and installing packages as frictionless as possible. In this case, we believe that most users who would come across a kik package, would reasonably expect it to be related to kik.com. In this context, transferring ownership of these two package names achieves that goal. I understand that you’ve committed time and energy to the packages already, and we don’t take that lightly. I’m hopeful that you’ll be able to republish this project with a new name.

Bob,

Can you provide an npm account to transfer the name to?

Thank you both for your patience and understanding.

Some of this could have been avoided if whatever "arbitration" process there was over handling name conflicts was more out in the open. A lot of people are discussing the trademark law question here, and that seems... premature. Stratton shouldn't have brought up trademark law in his email, and there's a reasonable argument that there's not much of a trademark conflict here, but it's not totally cut and dried. Either way, there should have been a way to settle it much more amicably, including a more open arbitration process where both sides were able to make their cases, and the process and its possible outcomes were clear. Instead, NPM just sided with Kik and away things went.

Koculu, reasonably upset by this move, removed everything that he had from NPM:

This situation made me realize that NPM is someone’s private land where corporate is more powerful than the people, and I do open source because, Power To The People.

Summary; NPM is no longer a place that I’ll share my open source work at, so, I’ve just unpublished all my modules.

This is not a knee-jerk action. I love open source and believe that open source community will eventually create a truly free alternative for NPM.

The problem came from the fact that a ton of systems relied, either directly or indirectly, on another bit of code by Koculu, called left-pad, and then basically... a ton of stuff on the internet broke. Basically a variety of services either rely directly on the 11-lines of code that is left-pad, or rely on other modules that in turn rely on left-pad. Remove those 11 lines of code and apparently a whole lot of the internet breaks. Koculu did move the code elsewhere, and by just pointing dependencies elsewhere most of this could have been fixed. Or, since it was open source, someone could just... replace left-pad. And that's what someone did. Another NPM user, Cameron Westland, apparently replaced left-pad, with a higher version number, which is allowed when a project has been unpublished. However, since some of the dependencies directly pointed to the specific version number of left-pad, things were still broken and NPM took the "unprecedented" step of giving the new left-pad back the old version number (0.0.3) and stuff stopped breaking (for now).

And since then... everyone's been yelling at each other. Some more reasonably than others. So, a few thoughts on all of this:

1. The trademark thing: Lots of people are focusing on this, but it's kind of a red herring. No trademark lawyers were ever actually involved. However, to me, it's much more a condemnation of the idiotic ways in which trademark law (not to mention copyright and patent law) are so frequently abused in the tech space and beyond. So many in the tech community are quite reasonably primed to be outraged at stupid trademark bullying because it happens all the time, that it's no surprise that Koculu's instinctual reaction is that this was what was happening to him. The fact that Kik had a patent agent (why?!?) contact him, and then that patent agent brought up trademark in a threatening way, only confirmed Koculu's initial reaction. Kik should have handled that much better.
2. NPM's dispute process: Since it operates the platform, it has every right to make decisions on how the platform is used and how it handles namespaces. However, with that power comes plenty of responsibility, if it wishes to maintain the trust and support of the developers who use it. Making decisions with little transparency or without a clear and open process is going to lead to results like this. NPM didn't appear to attempt to arbitrate the dispute or to even calm down the initial exchange. It just decided one way with very minimal explanation and no indication that the process could be appealed or disputed.
3. On "code stealing": Some have argued that NPM "stole" Koculu's code or that it just gave it to another person to maintain, but that's wrong. The code was open sourced, so it could be reused. The only question was around allowing that code to have the original version number, which again gets back to a trust issue. As Sven Slootweg pointed out, the implications here could seriously undermine trust:

   Then the next disaster struck, once people realized that not only could Kik (the company) push whatever code they wanted as a patch version to existing users of the kik library... but anybody could register any of the other now-removed NPM packages, and do the same thing.

   This is a security issue so significant, that I can't believe it even happened. Had a malware author scooped up left-pad, for example, they could have infected potentially thousands to millions of users with a single publish. In fact, that still might happen - because who is nj48 anyway?

   This really cannot ever, ever, ever be allowed. Global namespace or not, once an identifier has been used and removed, it should not ever be possible to reassign it to anything else.

   Another potential solution for this, which should be perfectly legitimate with open source code is that if you're publishing it as a package that can be a dependency, it can't be removed. The developer can abandon it or move on, but they shouldn't be able to delete the code. That, alone, was a big part of the problem here.
4. Careful who you depend on: Really, the biggest thing that stood out to me in all of this is the house of cards of different dependencies that creates layers upon layers of interdependencies that many people don't even realize exist. Pulling one little 11-line bit of code out of a package manager could bring parts of the internet to its knees. That's ridiculous on multiple levels. David Haney had a great post on all of this asking if people had forgotten how to code that they're now relying on dependencies for very simple functions like left-pad:

   ...even if the package’s logic is correct, I can’t help but be amazed by the fact that developers are taking on dependencies for single line functions that they should be able to write with their eyes closed. In my opinion, if you cannot write a left-pad, is-positive-integer, or isArray function in 5 minutes flat (including the time you spend Googling), then you don’t actually know how to code. Hell, any of these would make a great code screening interview question to determine whether or not a candidate can code.
   
   Finally, stringing APIs together and calling it programming doesn’t make it programming. It’s some crazy form of dependency hacking that involves the cloud, over-engineering things, and complexity far beyond what’s actually needed.
   
   What’s worse is that if any of your code (or the 3rd party library code) has a bug or breaks, you won’t know how to debug or fix it if you don’t know how to program.

   He's right that people "outsourcing" such simple functions to packages seems ridiculous, but to me the bigger issue is why so many did so as a dependency. I'm less concerned about people reusing code (which can be a good thing), than the fact that so many set these things up to be dependent on other code they had no control over. I get the value of modular systems and the ability to string together stuff, but when important code is totally reliant on layers upon layers of third parties, that seems ridiculous. If you want to reuse the code, why not just bring the code into your program, rather than making a dependency on something so basic? Obviously, many of the systems that relied on left-pad didn't even realize they were doing so, as they relied on other systems that had a dependency on left-pad, so the problem was "downstream," so to speak. But, still, if you're going to rely on dependencies, it seems like you should recognize just how fragile the house of cards you're relying on may be.

The open source world is great and powerful, and the rise of package managers and code repositories is also great. But people should be aware of what they're relying on when they build their systems, and how quickly it might fall apart. Oh, and trademark bullying is lame.

Filed Under: azer koculu, dependencies, kik, left-pad, modules, namespaces, node.js, npm, open source, threats, trademark
Companies: kik, npm

Google Threatens 9to5Google Over Trademark, Rescinds Threat, Leaves Everyone Frightened

from the just-a-little-evil dept

If you correct for company size, Google is generally pretty decent on intellectual property matters. But, hey, I guess no corporation is perfect. The company whose motto is "don't be evil" is, of course, very big. And they certainly have a very big legal team. I think it might be time for that legal team to get a quick primer on the wider culture at Google and do a quick review on the company motto, because those lawyers apparently suddenly decided that a news site, called 9to5Google, was suddenly violating Google's trademark after a scant five full years in operation.

The threat device Google decided to employ in this case was the news site's use of Google's Doubleclick/Ad Exchange network, which the site claims is a decent profit center for 9to5Google. There had apparently been occasional blips of the network not working in the past, all of which had been quickly resolved. Not the case this time, however.

But this time was different. We have learned that Google's Public Policy Team has decided that, after 5 years of publishing under the 9to5Google name, we have been violating their trademark. Sure we're on Google+, News, Apps, Ads and just about everything else Google as 9to5Google but I guess something changed.

We are a news site dedicated to covering Google, not trying to masquerade as Google, so we're appealing this decision (and if you know anyone at Google please have them run this up the ladder). But there is a big chance we'll have to change our name. Obviously we'll do a redirect so you can enter 9to5google.com in your browser and shouldn't have to update your bookmarks feeds or Twitter or anything.

The post notes that there was never any real hostility between them and Google in the past, so it seems pretty clear this was the legal team suddenly becoming aware of something that was not and had never been a problem in the past, and then making it a problem for whatever reason. It seems clear that the news site had never attempted to pass itself off as a wing of Google and it's difficult to think of another name for a news site that specifically covers Google that wouldn't include Google's name.

Fortunately, it appears the Google Gods changed their minds.

Update: A Google rep now tells us: Our Policy Team has taken another look at this and decided to reinstate ad serving to your site. No further action is needed. Please reach out if you still have any issues with ads on your site.

So we're back..for now – but obviously we're exposed and it might make sense to make a change anyway. Stay tuned.

And that's where the harm and the tad bit of evil comes in: just the threat of exposure of a trademark issue between a massive company like Google and a small news site is likely going to result in the news site changing its name, even as the company walks back the threat. I can completely understand how this happens, but I can also understand the chill that must still be working its way down the spines of the folks running 9to5Google. And that sucks.

Filed Under: 9to5google, advertising, reporting, threats, trademark
Companies: google

'Credible' Email Bomb Threat Shuts Down LA Schools... Sent From 'madbomber@cock.li'

from the that's-credible? dept

As you may have heard, Los Angeles closed all of its public schools today based on a bomb threat that the district deemed to be "credible." Later in the day, New York City's school district announced that it had received the same, or a similar, bomb threat, and had deemed it not credible and kept its schools open. Later in the day, it was reported that the bomb threats appeared to be a hoax.

Now, rather than deeming them "credible" or "not credible" perhaps a better term would be "incredible."

That's because it now appears that both bomb threats were sent from the throwaway email address "madbomber@cock.li." "cock.li" is an anonymous emailer service, whose website I wouldn't necessarily recommend visiting -- especially if you're not a fan of autoplay videos. Either way, the guy who operates cock.li -- Vincent Canfield -- posted to Twitter that both threats were sent via the "meme" emailer, and that he had received subpoenas trying to find out who was behind the "madbomber" account.

Canfield has posted the details of his contact with law enforcement over all of this, including two phone calls with police where he asks about the gag clause in the subpoena and is told that it's a "request" rather than an order. The first phone call was a bit more confrontational.

The releases also include the emails sent by the NYPD:

Good Morning,

Attached is a subpoena requesting subscriber, IP logs and other user information pertaining to a Cock.li email address, which used to send a threatening email to the superintendent of the NYC Public schools. We are requesting that these results be expedited do to the severity of this threat, thank you for your attention in this matter and have a nice day.

Detective Michael Arena

NYPD Intelligence Bureau

It does seem that that New York City made the right call in judging the threats to be non-credible, though a little ridiculous in originally pretending that Canfield was gagged over discussing them. And, it does appear that the LA Unified School District over-reacted in shutting down all of its schools (which it did without even talking to the LAPD) -- though, to some extent, you can understand why such a decision was made.

Still, it seems that a bomb threat coming from "madbomber@cock.li" probably should have raised a few eyebrows...

Filed Under: cock.li, lapd, lausd, memes, nypd, schools, shut down, threats, vincent canfield

Appeals Court Issues Fantastic 1st Amendment Ruling Against Censorious Sheriff Thomas Dart In His Crusade Against The Internet

from the go-away dept

We've written about Cook County Sheriff Thomas Dart and his desire to censor the internet for a few years now. Back in 2009, he sued Craigslist because he claimed it was "the single largest source of prostitution in the nation." As we noted at the time, Craigslist was just a platform, and suing it made no sense at all -- especially given that the company was more than willing to cooperate closely with law enforcement and help them track down people who were breaking the law online. In other words, whereas a sheriff who was actually interested in stopping law breaking might embrace the site and work with it to track down law breakers, Dart chose to sue the toolmaker. That lawsuit failed miserably, but Sheriff Dart never gave up his quixotic quest to blame internet companies for prostitution.

Over the past few years, Backpage.com has taken over the boogeyman reputation previously held by Craigslist when it comes to online prostitution. Back in July of this year, Dart proudly announced that he had scared Visa and Mastercard out of working with Backpage after he sent them a misleading letter effectively threatening them if they did not stop working with Backpage. Backpage quickly sued Dart and within weeks received a temporary restraining order, with the court wasting no time claiming that Dart's actions in getting Visa and Mastercard to stop doing business with Backpage was unconstitutional prior restraint. However, the court later appeared to change its mind and refused to issue an injunction, saying that while Dart's letter could be construed as a threat, it wasn't censorship since he had no legal authority over the payment companies.

Backpage quickly appealed to the Seventh Circuit appeals court -- which has now absolutely trashed Dart in a decision written by Judge Richard Posner. The entire ruling is well worth reading, but here are a few excerpts. Posner does not find the lower court's reasoning convincing at all, quoting Okwedy v. Molinari to explain why:

“The fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff’s message, is not necessarily dispositive … . What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.”

Posner is well aware of Dart's previous failed attempt to sue Craigslist and notes the obvious intention of the letter to payment companies:

The suit against Craigslist having failed, the sheriff decided to proceed against Backpage not by litigation but instead by suffocation, depriving the company of ad revenues by scaring off its payments-service providers. The analogy is to killing a person by cutting off his oxygen supply rather than by shooting him. Still, if all the sheriff were doing to crush Backpage was done in his capacity as a private citizen rather than as a government official (and a powerful government official at that), he would be within his rights. But he is using the power of his office to threaten legal sanctions against the credit-card companies for facilitating future speech, and by doing so he is violating the First Amendment unless there is no constitutionally protected speech in the ads on Backpage’s website—and no one is claiming that. The First Amendment forbids a public official to attempt to suppress the protected speech of private persons by threatening that legal sanctions will at his urging be imposed unless there is compliance with his demands....

Central to Backpage’s case is a letter of June 29 of this year that Sheriff Dart sent both to MasterCard’s CEO and Board of Directors and to the corresponding personnel of Visa. The letter is on stationery captioned “Office of the Sheriff,” and begins: “As the Sheriff of Cook County, a father and a caring citizen, I write to request that your institution immediately cease and desist from allowing your credit cards to be used to place ads on websites like Backpage. com.” Notice that he is sheriff first, father and citizen second; notice his use of the legal term “cease and desist”; notice that he calls MasterCard “your institution,” implying that the same letter is going to other “institutions”—namely other credit card companies—in other words that he is organizing a boycott. And notice that he doesn’t demand that “your institution” refuse to allow “your credit cards” to be used to pay just for ads on Backpage’s website that promote illegal products or services—he demands that “your institution” cease and desist from placing any ads “on websites like Backpage.com” (and a fortiori on Backpage’s own website) even though “adult” ads are only one of eleven types of classified ad published on the website. Visa and MasterCard got the message and cut all their ties to Backpage.

The letter goes on to state that “it has become increasingly indefensible for any corporation to continue to willfully play a central role in an industry that reaps its cash from the victimization of women and girls across the world.” The implication, given whom the letter is addressed to, is that credit card companies, such as MasterCard and Visa, “willfully play a central role” in a criminal activity (emphases added)—so they had better stop! Indeed, the letter goes on to say, those companies are “key” to the “growth” of sex trafficking in the United States. (Actually, as explained in an amicus curiae brief filed by the Cato Institute, Reason Foundation, and DKT Liberty Project, citing voluminous governmental and academic studies, there are no reliable statistics on which Sheriff Dart could base a judgment that sex trafficking has been increasing in the United States.) He is intimating that two of the world’s largest credit card companies may be criminal accomplices.

“Financial institutions,” the letter continues, “have the legal duty to file ‘Suspicious Activity Reports’ to authorities in cases of human trafficking and sexual exploitation of minors.” The letter cites the federal money-laundering statute, 18 U.S.C. § 1956, thereby intimating that the credit card companies could be prosecuted for processing payments made by purchasers of the ads on Backpage that promote unlawful sexual activity, such as prostitution. And “make no mistake,” the letter thunders: “Your [credit] cards have and will continue to be used to buy ads that sell children for sex on sites like Backpage.com. … The use of credit cards in this violent industry implies an undeserved credibility and sense of normalcy to such illicit transactions and only serves to increase demand.” And then, Posner notes, Dart makes his threat pretty damn clear:

And here’s the kicker: “Within the next week, please provide me with contact information for an individual within your organization that I can work with [harass, pester] on this issue.” The “I” is Sheriff Dart, not private citizen Dart— the letter was signed by “Thomas Dart, Cook County Sheriff.” And the letter was not merely an expression of Sheriff Dart’s opinion. It was designed to compel the credit card companies to act by inserting Dart into the discussion; he’ll be chatting them up. Further insight into the purpose and likely effect of such a letter is provided by a strategy memo written by a member of the sheriff’s staff in advance of the letter. The memo suggested approaching the credit card companies (whether by phone, mail, email, or a visit in person) with threats in the form of “reminders” of “their own potential liability for allowing suspected illegal transactions to continue to take place” and their potential susceptibility to “money laundering prosecutions … and/or hefty fines.” Allusion to that “susceptibility” was the culminating and most ominous threat in the letter.

Posner further notes that if an ordinary citizen had sent a letter with similar requests, and without the "demands," the payment companies likely would have been "discarded or filed away." Posner gets down to the truth of the matter:

Visa and MasterCard were victims of government coercion aimed at shutting up or shutting down Backpage’s adult section (more likely aimed at bankrupting Backpage--lest the ads that the sheriff doesn’t like simply migrate to other sections of the website), when it is unclear that Backpage is engaged in illegal activity, and if it is not then the credit card companies cannot be accomplices and should not be threatened as accomplices by the sheriff and his staff.

Posner points out that Section 230 protects Backpage from liability and the hints that Mastercard and Visa might be liable for federal crimes (which are exempt from Section 230) are ludicrous. He also knocks Dart for suggesting that all ads in the adult section of Backpage are illegal themselves, noting that plenty of it is perfectly legal, including fetishism and phone sex.

And thus:

As a citizen or father, or in any other private capacity, Sheriff Dart can denounce Backpage to his heart’s content. He is in good company; many people are disturbed or revolted by the kind of sex ads found on Backpage’s website. And even in his official capacity the sheriff can express his distaste for Backpage and its look-alikes; that is, he can exercise what is called “[freedom of] government speech.”... A government entity, including therefore the Cook County Sheriff’s Office, is entitled to say what it wants to say—but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens. “[A] government’s ability to express itself is [not] without restriction. … [T]he Free Speech Clause itself may constrain the government’s speech.”

Posner clearly notes the potential slippery slope:

For where would such official bullying end, were it permitted to begin? Some public officials doubtless disapprove of bars, or pets and therefore pet supplies, or yard sales, or lawyers, or “plug the band” (a listing of music performances that includes such dubious offerings as “SUPERCELL Rocks Halloween at The Matchbox Bar & Grill”), or men dating men or women dating women—but ads for all these things can be found in non-adult sections of Backpage and it would be a clear abuse of power for public officials to try to eliminate them not by expressing an opinion but by threatening credit card companies or other suppliers of payment services utilized by customers of Backpage, or other third parties, with legal or other coercive governmental action.

Finally, Judge Posner rejects the lower court's claims that issuing an injunction would hurt Dart's own First Amendment rights:

The judge was further mistaken when he said that “the Sheriff’s own First Amendment rights are at stake in this case and the Court must therefore also consider the risk that erroneously entering an injunction would chill Dart’s own right to speak out on issues of public concern. Sheriff Dart has a First Amendment right to publicly criticize the credit card companies for any connection to illegal activity, as long as he stops short of threats” (emphasis added). But the judge himself, in the passages we quoted earlier, had been emphatic that Dart had not stopped short of threats. Those threats were not protected by the First Amendment; they were violations of the First Amendment.

This ruling has lots of great quotes that may be quite useful elsewhere. Over the years we've seen many politicians make similar threats -- often to similar results. Remember when former Senator Joe Lieberman pressured Amazon to stop hosting Wikileaks? And similar pressure led Mastercard and Visa to stop accepting donations for Wikileaks as well -- apparently in a deal with US diplomats. Lieberman (that guy again?!?) also famously put pressure on Google to censor websites that he deemed as promoting "terrorism" and similarly pressured Twitter to silence the feeds of people he didn't like. He also threatened the NY Times for publishing Wikileaks' documents.

And, of course, in just the last few weeks, we've seen increasing pressure from government entities potentially demanding censorship online of "bad" content in the wake of the Paris attacks. Hopefully, this ruling by Posner will provide a useful tool to combat such censorship. While it technically only applies in the 7th Circuit, Posner's rulings are influential in other circuits as well. Of course, there's a chance that Sheriff Dart will decide to waste more taxpayer money and seek for an en banc rehearing in the 7th Circuit or even ask the Supreme Court to hear the case as well. If so, this could become a key free speech case concerning government coercion to silence online speech.

Filed Under: 7th circuit, adult ads, censorship, first amendment, free speech, richard posner, thomas dart, threats
Companies: backpage, backpage.com, craigslist, mastercard, visa

Saudi Arabia Says It Will Sue Twitter Users Who Compare It To ISIS; Apparently Skips The NY Times

from the can-a-whole-country-do-a-streisand-effect dept

Just about a week ago, the NY Times had a giant article comparing Saudi Arabia to ISIS. It was a rather powerful article that highlights the similarities and connections between the two, while really highlighting the incredibly hypocritical attitude of many Western politicians who freely embrace the Saudi government while claiming that ISIS is barbaric.

Then, just a few days later, Saudi Arabia's Justice Ministry announced that it would sue someone for calling Saudi Arabia "ISIS-like." Of course, it's not the NY Times that the Saudi government is going after, but a Twitter user, who compared a Saudi death sentence for a Palestinian poet to the way ISIS carries out its own "justice" system. The Twitter user in question has not been named. It seems like the strategy here is to scare people away from comparing Saudi Arabia to ISIS, but there's a decent chance that it goes in the other direction. Such a plan is so ridiculous that it seems only likely to draw many more comparisons.

And, really, if your goal is to distance yourself from a group of crazy nutjobs who appear to have a somewhat arbitrary sense of justice and thrive on using the death penalty as a weapon, perhaps announcing plans to go after individuals criticizing you on Twitter isn't the best way to further the distinction.

Filed Under: free speech, isis, saudi arabia, threats

Patrick Zarrelli Claims He's Filing Criminal Charges Against Us Because He Doesn't Like Our Post About Him

from the dude:-do-you-even-first-amendment? dept

So... a week and a half ago, we published an article, written by Tim Cushing, discussing the rather poor decisions of a self-proclaimed "reputation management" guy named Patrick Zarrelli. Zarrelli, it appeared, had been hired by Florida attorney Gary Ostrow, to improve his reputation, but instead, Zarrelli proceeded on a course that seemed more likely to destroy his own reputation, and potentially drag Ostrow further down with him.

The background: Ostrow, back in 2012, put out a ridiculous press release, claiming that he was "taking on all celebrity criminal cases in Florida." The press release was so ridiculous and silly that it resulted in mocking and scorn from lawyers online, including Scott Greenfield and Mark Bennett. Apparently, three years later, Ostrow decided he wanted those posts to disappear from the internet. As we've seen, trying to make things disappear from the internet is generally a bad idea that has a history of backfiring spectacularly, often generating renewed interest in that which you wish to delete.

It tends to be even worse when you attempt to delete the content in the most ham-fisted manner possible, which appears to have been Zarrelli's strategy. He called up Greenfield and Bennett, and did a weird passive-aggressive combination of threatening them with totally baseless legal threats, and a weird sort of "hey we're all buddies, let's just take this content down" ridiculousness. If you haven't, you really need to listen to the voicemail that Zarrelli left Greenfield. I could describe it, but no description could do that voicemail justice. It includes a bunch of nonsense legal terms ("hot news exemption"?), a bizarre attempt to "trade" website design if Greenfield will take down the article ("let us improve your blog for you"), threats ("it's not going to be fun for you") and a bizarre listing of his family tree of "high-end lawyers."

All this resulted in more blog posts from Bennett and Greenfield. Another attorney, Brian Tannebaum, apparently also was on the receiving end of ridiculous threats from Zarrelli.

Throughout it all, Zarrelli kept publicly (on Facebook and Twitter) putting up a show of bravado, and a few times suggested that the reason that everyone was pissed at him was because of some sort of "lawyerly bravado" that he felt they believed they needed to show before capitulating -- rather than the truth: which is that these lawyers know Zarrelli has no legal basis for his claims, and they have little time for censorious jerks who are threatening them with bogus legal threats.

Now we get to the rule of holes: when you're in one, stop digging.

We had thought that, as with many such cases, Zarrelli might calm down, get a little perspective and move on with his life -- possibly in a different business than "reputation management." But, apparently, he (unwisely) chose plan B.

Yesterday afternoon a large envelope stuffed with hundreds of pages of paper showed up at my office, which appears to be a hilariously stupid threat that he's suing basically everyone who made fun of him. If you can't read that "cover page," here's what it says:

Dear Tech Dirt [sic] Team,

A writer of yours named Tim Cushings [sic] is using your website to harass, stalk, libel, and cyber bully me online. We have filed criminal charges and bar complaints in seven states. We are now in the process of filling [sic] a federal lawsuit in Florida. Due to your companies [sic] high page rank, there [sic] attack articles about me dominate the search results. They are even above my own Facebook page.

Thank you,

Patrick Zarrelli

And, as you can see, there are large packets for the lawyers mentioned above -- Scott Greenfield, Mark Bennett and Brian Tannebaum, as well as one for Tim Cushing, who is listed together with Sam Glover (I have no idea why). Each "cover page" lists a "criminal case #": "Criminal Case #15-172076FLPD." I can't wait to see what criminal law it violates to "rank better than my Facebook page in search results," but I get the feeling that the Florida police won't be doing much with this.

Beyond the misspellings, the cover letter is just ridiculous. It doesn't actually make any request to us. It doesn't say that anything has actually been filed against us, or Tim directly, despite the clear attempt to imply as much. There is no effort to (as you're kinda required to do) name what actual statements constitute violations of the law (he can keep looking, 'cause he's not going to find any). Also, "harass, stalk, libel, and cyber bully." Dude, he wrote an article about you fucking up. That's not harassing, stalking, libeling or cyber bullying. That's called reporting, and it's damn well protected by the First Amendment. Whatever "criminal charges" he thinks he's filed are not what he seems to think they are. Individuals don't file "criminal charges." That's law enforcement's job. It sounds like he may have just whined to some law enforcement folks in Florida who probably filed it in the garbage file where it belongs. Obviously, he's not filing "bar complaints" against us or Cushing, since Cushing isn't a lawyer. He very well may have against the lawyers listed, but those will all go nowhere fast.

If he's seriously contemplating "filling [sic] a federal lawsuit in Florida" -- well, then he should have had his lawyer contact us, rather than himself -- and he might want to acquaint himself carefully with Florida's brand new anti-SLAPP law, which we would almost certainly make use of in seeking legal fees for filing a bogus lawsuit whose sole purpose was an attempt to stifle Constitutionally protected speech.

Oh, and you might wonder what's in all the pages in those packets. It is not -- as you might think from the cover pages -- any actual lawsuit or bar complaint or anything of the sort. It is not any actual demands or explanation of what laws he thinks we broke. Rather, each packet is just pages upon pages of screenshot printouts of the articles that we wrote, the comments on those articles, and comments found on Twitter and Facebook where people were mocking Zarrelli.

Dude: let it go. You messed up and people made fun of you for it. There's nothing illegal about that (in either the criminal or the civil sense).

Update: After a bunch of requests, we've scanned in the full packets. You can see them below:

Filed Under: anti-slapp, brian tannebaum, criminal charges, defamation, free speech, gary ostrow, mark bennett, patrick zarrelli, reputation management, sam glover, scott greenfield, threats

Reputation Management Bro Destroys His, And His Client's, Reputation With Threatening Phone Calls To Defense Lawyers

from the 'I'll-kill-us-both-or-die-trying!' dept

I have to assume the so-called "reputation management" business is working for someone, but so far all we have to go on are the spectacular flaming wreckage left behind by fools who insist on punching above their weight.

Late in 2012, Florida attorney Gary Ostrow ostentatiously announced he was now willing to represent as many criminally-charged celebrities as would have him. Shortly thereafter, he was mocked by other attorneys who were far less narcissistic or needy.

Months passed and Ostrow was forgotten, as the world does not suffer from a lack of litigation-related stupidity. Unfortunately, it appears Ostrow refused to quit picking at the scab covering his self-inflicted Google wound. Unless Patrick Zarrelli is performing some pro bono work, Ostrow hired this motormouth to clean up his search results. (From Zarrelli's Twitter profile.)

What persuaded Ostrow to hire Zarrelli cannot easily be determined by examining his reputation management "firm's" website. Despite claiming to be for businesses which "only accept the best," the company claims to offer "management plans... renowned for their well roundness, effectiveness, and tech savvy," custom-fit rep management solutions for "just about any budget even for charity’s and start-ups," and -- to ensure it's not duped by botnets -- a free quote with a captcha that requires potential customers to prove "Your a human."

(Zarrelli -- despite his extensive, unproven background in web design, SEO wizardry and reputation management -- still seems to find the subtle differences between "your" and "you're" have eluded his otherwise pristine business acumen. [Also "to/too," "hear/here" and pretty much every other homonym he banged out on his keyboard during his Facebook ranting/Twitter self-emasculation.)

On top of that, his rep management skills skillz seem to include the creation of fake positive reviews.

Combative management takes steps to fight back against poor reviews by flooding the internet with positive reviews of your company. Even though negative statements cannot be erased, we can make them almost impossible to find, buried under glowing positivity and reviews that will bring customers flocking to you. We’ll push those negative results straight from the first page of search results into places that no one will ever look.

This is Gary Ostrow's savior.

YOU'LL FULLY BELIEVE WHAT HAPPENS NEXT.

Apparently believing himself to be the first person to walk the internet, Zarrelli began calling up lawyers who had written pieces critical of Ostrow's celebrity legal services and making a bunch of vague, but completely stupid threats. The first person he called was New York defense attorney Scott Greenfield, who -- like everyone else he contacted -- knows his way around the First Amendment and bogus threats.

When Zarrelli called and launched into his pitch of his mad internet skillz and how I would have to take down posts about Ostrow or face his wrath, a bar discipline complaint, I told him to “go for it, asswipe.” My tolerance for stupid is limited these days.

Zarrelli is nothing if not persistent. Unwilling to take "go for it, asswipe" for an answer, he called up other lawyers who had written about Ostrow -- again, lawyers who also had limited tolerance for idiots and idiotic threats.

Apparently, after I hung up on him, he called Dan Hull (who called to share his fun trolling this kid, who informed Hull that he was going to destroy his firm) and Mark Bennett, threatening him as well with a grievance if he didn’t succumb to Zarrelli’s overwhelming power.

Greenfield has the recording of Zarrelli's long-winded threats posted to his site. It's definitely worth a listen, especially as he claims his websites have "25 million views" and name-drops relatives like anyone cares. (Also, "my family is riddled with high-end lawyers." [?])

Bennett, however, was First to Post.

Well, actually second. In a breather between threatening phone calls, Zarrelli took to Facebook to air his complaints to a more receptive audience. The full thing is worth a read, but here are some of the better bits.

Never encountered such a rude, unethical shady bunch of attorneys in my life. These guys literally wrote a negative article about a colleagues press release, just so they could tag in an arrest from his past to it, in an attempt to enter his search results and steal his business.

[...]

The thing that's interesting about attorneys like this, is that they think they understand the internet and its laws, even though what they actually know about the internet could fit into a thimble. The truth is they were out of law school before the internet was even invented!

[...]

[I[n the real world they have a better understand of our complex laws and can use that to their advantage to bully people.

However on the internet, this means absolutely nothing, since the internet essentially is governed by no one. Moreover the internet is one of the most well documented places on the planet, and if you know how to read the code you can track and map out anything.

The internet's innate ability to thoroughly document stuff is coming back to bite Zarrelli. He's nuked his Facebook post, but it has been archived and screenshotted. His threatening phone calls have been posted to a blog with a high page rank, as well as Soundcloud. Everything is indeed well-documented -- something Zarrelli clearly overlooked when "engaging" others on behalf of his client.

Anyway, Mark Bennett took to his blog to detail his "discussion" with Zarrelli. His words were no kinder than Greenfield's.

I don't play well with extortionists, so I told Zarrelli to go ahead and file his grievance. I may have dropped an f-bomb or two—Gary, don't you hate it when people threaten to do stupid things instead of just doing them? I know I do.

Anyway, Gary, I thought you'd like to know that some stupid asshole calling himself Patrick Zarrelli is going around trying to fuck up your reputation while claiming to be your agent. Despite the judgment errors in your past (which are legion—we all make mistakes), I doubt that you are dumb enough to hire this Zarrelli character to try to push me around.

Zarrelli also called attorney Brian Tannebaum, offering up the same litany of vague threats and stupidity. Then, he briefly engaged with his critics on Twitter, offering more threats, some half-hearted braggadocio and -- finally -- something that sounded like a playground bully suddenly realizing his supposed victims aren't actually scared of him.

to late millions have seen it im suing you tomorrow. your a bad lawyer and person. leave me alone!!!!

Bennett has also published a follow-up post that's going to do little to change Bennett's reputation as a "bad person" who should just leave the person who picked the fight "alone."

You are not a "professional." You are a born loser trying to muddle by, a socially retarded 36-year-old man-child with a string of failures who is still trying to figure out why the world has stopped handing things to him on a silver platter.

A professional in the reputation management business might have performed a little due diligence before threatening lawyers who a) know the law and b) are used to being threatened by stupid people. Someone who claims to know the SEO world inside and out might have realized attacking influential blogs and websites is about the worst thing you can do for a client's "reputation."

Greenfield wrote a blog post about you this morning. One post. The only time he has mentioned your name. He published two hours ago. When I google your name—just "Patrick Zarrelli" —Greenfield's posts comes up in the #5 slot, after your carefully cultivated social-media pages. When I google "Patrick Zarrelli reputation management" it's the first hit. Nobody had to do any SEO to make that happen; I hadn’t linked to it until just now.

It's just Scott's blog, which Google absolutely loves.

Scott's blog has Google Pagerank 6. You do not have anything that compares. His post about you will be at the top of Google search results by the end of the day, and it will stay there for as long as you want to keep playing.

Zarrelli is finished in the reputation management business. I wouldn't shed any tears, though. He clearly didn't belong in it. Ostrow's reputation has also taken another hit, despite (presumably) paying Zarrelli to patch it up. Instead of helping his client, Zarrelli burned both of their reputations to the ground with a few short phone calls and utilized the power of social media to salt the earth. Well done, Mr. Zarrelli. Time to switch to Career Path B.

Filed Under: gary ostrow, lawyers, mark bennett, patrick zarrelli, reputation management, scott greenfield, threats
Companies: dependable website management

Lawyer Threatens Another Lawyer With Defamation Lawsuit If Old Blog Post Loaded With Facts Isn't Removed Immediately

from the libelslander dept

After pretty much vanishing from the public eye, Paul Ceglia's (he of the "I own 50% of Facebook" lawsuit) former attorney, Dean Boland, has resurfaced. Considering his handling of the issue that has prompted his reemergence into the public eye, he would have been better served by staying off the Google radar.

A few years back, Dean Boland made a good point in court, but made it badly.

Attorney Dean Boland purchased innocent pictures of two juvenile girls from a Canadian stock-image website, then digitally modified them to make it appear as if the children were engaged in sexual conduct.

Boland was an expert witness for the defense in a half-dozen child porn cases and made the mock-ups to punctuate his argument that child pornography laws are unconstitutionally overbroad because they could apply to faked photos.

This resulted in a $300,000 judgment against Boland as the result of a lawsuit brought by the two people whose images were used to create the mocked-up child porn. Scott Greenfield offered his commentary on the issue, using the above quotes from a Wired article. He also added additional commentary based on the Sixth Circuit Appeals Court ruling, noting that Boland had entered into a deferred prosecution agreement.

Boland is now objecting to both of these quotes from Greenfield's 2012 article. In an email sent to the lawyer, Boland is demanding the removal of facts under the theory that they're somehow defamatory.

Mr. Greenfield:

Your article at this link contains false and defamatory statements that I am demanding be revised or the entire article removed.

By way of summary, you cite to a Wired article and quote as follows: “Boland was an expert witness for the defense in a half-dozen child porn cases and made the mock-ups to punctuate his argument that child pornography laws are unconstitutionally overbroad because they could apply to faked photos.”

This quoted statement is false. The exhibits were not used for that purpose at all. This statement is false and defamatory and is causing me professional financial harm which is calculable.

This statement in the article is defamatory and false: “As a result, in 2007 he found himself the defendant in a deferred federal child-porn prosecution in Ohio….” I have never been involved in any prosecution, never been a defendant in a criminal matter and have maintained good standing as a lawyer in Ohio with a no discipline record. I did not enter into any agreement called a “deferred prosecution agreement” nor even words to that effect. This statement is false and defamatory and damaging to my professional reputation.

“Given that Boland was prosecuted (even though it resulted in a deferred prosecution)” Again, this is a false statement. I was never prosecuted for any conduct in this case nor any other. I never entered a deferred prosecution agreement with the government. This statement is defamatory and causing me real, financial harm which is calculable.

I am demanding that this article be revised to correct these and other errors or removed entirely within ten days. Please advise as to your decision so that I can proceed accordingly if a satisfactory result is not obtained.

Dean Boland

Greenfield notes that Boland originally approached him earlier and in a much less litigious fashion, asking him to consider removing it because the issue was long since settled. While Greenfield was sympathetic, he pointed out that coverage still existed elsewhere, including at Wired -- the article Greenfield had quoted from.

By approaching me as a human being, rather than a dumbass, I was sympathetic to his problem. But it wasn’t that simple, as mine was only one of a number of posts about him and his child porn problems, including Courthouse News and the ABA Journal. So there was no point in my removing a post (something I’m loath to do) if the others remained.

Apparently, Boland is having no success asking anyone to remove articles pertaining to the 2012 appeals court decision. Perhaps his plan was to threaten the smallest fish in the internet pond first. But going after another attorney isn't the wisest move, even if an individual seems more likely to respond favorably to legal threats than larger entities like Wired and the Wall Street Journal.

Boland's threats, however, have at least two insurmountable problems. First, the supposedly defamatory material in Greenfield's post is actually direct quotes of other sources, including an appeals court decision. But that's just the beginning. Even if Boland had managed to find defamatory material in Greenfield's 2012 blog post, he'd still be out of legal options.

When I received his threat yesterday, I sent it off to Marc Randazza, who was also sympathetic to Boland for having suffered the indignity of his stupidity. He sent a nice, very lawyerly, letter explaining the law to Boland and why his threat was mind-numbingly stupid on every level.

The funny part is that Boland is so clueless that he doesn’t realize that he failed the most basic of all legal issues, that he’s blown the one year Statute of Limitations, even if there was defamation. There isn’t, but his bluff doesn’t pass the smell test of a first year law student.

Protip: Don’t send a threatening email to a lawyer that conclusively proves your incompetence. It rarely ends well.

And that could have been the end of it. If Boland hadn't insisted on doubling-down on his dumbassery, it might have remained between him, Scott Greenfield and Marc Randazza. But he refused to back down, despite his legal threats containing not a single bit of credibility.

Rather than appreciate Randazza’s display of kindness, Boland came back with the sort of response one would expect from someone who gets their legal advice from Reddit, that Randazza’s letter didn’t prove that the statements were true.

"Your prompt response, while detailed about the law, is devoid of evidence that the claims made in the article are in fact accurate or true. This is not surprising since they [sic] statements within the article are not in fact true. As of my notice earlier today, your client is now on notice that the article contains materially false statements. Should he persist in leaving the post online, unedited or corrected to conform the statements to the truth, I will have no choice but to seek court intervention to accomplish that result."

I assume Boland is referring to the very special Internet Court of Moon Law, which generally seems to be receptive to bogus legal arguments predicated on a person's stubborn belief that they are right despite all evidence to the contrary.

Because of this, Boland's connection to a bizarre fake child porn case isn't going to sink to latter pages of Google search results any time soon. It's one thing to ask nicely for a favor. It's quite another to baselessly demand internet denizens bend to your will. The first tactic may rarely result in granted favors, but it's far less likely to result in the mass exhumation of corpses you hoped would stay buried.

Filed Under: child porn, dean boland, defamation, free speech, scott greenfield, threats