California Case Against Backpage Moves Forward Over Money Laundering Claims

from the why-do-we-need-to-change-cda-230? dept

Late last year, we wrote about ridiculous charges by California's then Attorney General, Kamala Harris, against Backpage.com for "pimping." As we pointed out at the time, Harris clearly knew the case was a loser. It completely exaggerated what Backpage had done, and Harris herself had earlier admitted that she had no authority to go after an internet platform for how people used it. A judge quickly threw out the charges against Backpage... and Harris turned around and filed even more charges against Backpage's execs, including repeating the pimping charge and adding in "money laundering."

As we noted at the time, the money laundering charges seemed pretty questionable. It's based on the fact that Backpage had set up a separate (and separately named operation) to handle billing. The complaint argues that this was a form of money laundering, to hide from credit card companies that the money was being spent on prostitution. That leaves out, of course, that part of the reason why Backpage likely had to set up such a structure was because Cook County Sheriff Thomas Dart had threatened credit card companies if they didn't stop working with Backpage -- a move that was later deemed to be a clear First Amendment violation against the company by Sheriff Dart.

In a new ruling in the case in California, the court has thrown out nearly all of the charges -- including the "pimping" charges that were already previously thrown out. But they are allowing the money laundering charge to go forward -- though it does appear the court recognizes that the state will have a hard time winning it's case.

This Court agrees the complaint is not a model of clarity. However, the nature of the charges and theories of prosecution are ascertainable from the amended charging instrument. Specifically, the People now allege that Defendants conspired to orchestrate a bank fraud by misrepresenting to credit payment processors that they were not processing transactions from Backpage, and this misrepresentation would trigger a release of funds from banks. The overt acts alleged clarify that Defendants created multiple classified websites, and when applying for (at least one) merchant account, Defendant Ferrer omitted any reference to Backpage, despite intending to process Backpage transactions through the account. The People allege that credit payment processors, along with American Express, would not have knowingly processed the payments for Backpage and the banks would not have released funds absent Defendants’ trickery.

These allegations provide sufficient notice for Defendants to understand the nature of the charges and prepare a defense. Essentially, either Defendants did - or did not - materially represent to credit payment processors in a scheme to fraudulently obtain money from banks. If Defendants did so, this may form the basis for a money laundering charge. (Cf. United States v. Mason (9th Cir. 1990) 902 F.2d 1434, 14431 [federal money laundering conviction supported by evidence that bank would not have opened a merchant account had it known it was laundering credit charges for prostitution; the false representation to the credit processor influenced the bank’s release of funds].) The factual resolution to that question, however, is not at issue here. What is at issue is whether the First Amended Complaint has been sufficiently pled to meet statutory and due process requirements.

The ruling goes on to note that California prosecutors "must show that the profits came solely from that underlying criminal activity" which may be difficult, given that it's repeatedly failed to show any underlying criminal activity done by Backpage itself (rather than Backpage's users -- many of whom may, in fact, be engaged in criminal behavior). The court also does toss out some of the money laundering charges: the ones based on the completely bogus "pimping" charges.

Of course, it's important to note that this case continues against the backdrop of Congress rushing headlong towards trying to amend CDA 230 to allow states, like California, to bring charges against companies like Backpage (and to allow individuals to sue in civil court as well).

As we've discussed, that bill, called "SESTA," will almost certainly do a lot more harm than good for the victims of sex trafficking. However, it is important to note that when the bill was introduced, it was clearly designed to target one company in particular: Backpage. Just read the quotes from various Senators co-sponsoring the bill, who make it clear that the bill is to take down Backpage:

Senator Portman: “Stopping trafficking is one of the great humanitarian and human rights causes of the 21st century. Our bipartisan investigation showed that Backpage knowingly facilitated sex trafficking on its website to increase its own profits, all at the expense of vulnerable women and young girls. For too long, courts around the country have ruled that Backpage can continue to facilitate illegal sex trafficking online with no repercussions. The Communications Decency Act is a well-intentioned law, but it was never intended to help protect sex traffickers who prey on the most innocent and vulnerable among us. This bipartisan, narrowly-crafted bill will help protect vulnerable women and young girls from these horrific crimes.”

Senator Blumenthal: “Our narrowly tailored legislation would give victims of sex trafficking their day in court. For too long, countless young people have been victims of prostitution, human trafficking, and horrendous violence through ads on websites like Backpage.com. This is not an abstract debate: these advertisements come with a real, unconscionable human cost.”

Senator McCain: “For years, Backpage.com has knowingly facilitated online sex trafficking and child exploitation, destroying the lives of innocent young women and girls,” said Senator McCain. “It is disgraceful that the law as written has protected Backpage from being held liable for enabling these horrific crimes. Our legislation would eliminate these legal protections and ensure companies like Backpage are brought to justice for violating the rights of the most innocent among us.”

Senator McCaskill: “Until our investigation showed Backpage was actively facilitating sex trafficking, the company had repeatedly used the federal law that protects online platforms to escape accountability for the disgusting crimes it aided. But even as we’ve helped deny Backpage its legal shield in these cases, we need a broader effort to stop the next Backpage, before it starts. And that’s what this bipartisan bill is all about—better protecting Missouri’s families from sex trafficking by making clear to any company considering going into business with sexual predators, that the law won’t protect them from responsibility.”

Senator Heitkamp: “For too long, websites like Backpage.com have profited from knowingly facilitating the sex trafficking of minors and others through the use of their online platform – in many instances, helping traffickers skirt law enforcement and their own standards to advertise minors for sex. And what’s worse: they’ve been able to continue doing this without penalty by claiming protection under the First Amendment. That’s a disgusting and cowardly invocation of one of our nation’s most cherished freedoms – neither the First Amendment nor the Communications Decency Act was written to shield those who help enslave and sell children for sex. It’s past time to hold websites that make money from sex trafficking accountable, just as our laws already do for traffickers, for the enslavement and abuse of men, women, and even children – who have been reportedly trafficked at a near 850 percent increase since 2010 largely because of the anonymity internet sales provide – and our bipartisan bill would work to do that by cracking down on these horrific crimes online.”

Senator Klobuchar: “Websites like Backpage.com facilitate sex trafficking across Minnesota and our country. But shutting down these sites isn’t enough, we need to stop protecting perpetrators and ensure victims are able to seek the justice they deserve. The bipartisan Stop Enabling Sex Traffickers Act is another step forward to putting an end to these crimes once and for all.”

Senator Lankford: “Heinous crimes like sex trafficking deserve to be met with the fullest extent of the law. We must eliminate loopholes to prevent any entity from avoiding the justice they deserve. This legislation is needed to help protect vulnerable people from modern-day slavery, which unfortunately has been facilitated more and more online. I’m proud to work with my colleagues on the PSI Subcommittee to not only investigate Backpage, but to address the urgent, moral issue of human trafficking.”

Senator Lee: “The Communications Decency Act was never meant to provide immunity to websites like Backpage.com. Today’s legislation will deter others from facilitating sex trafficking and allow victims the possibility of restitution, while preserving the core protections of Section 230.”

Senator Rubio: “Perpetrators of human trafficking and websites like Backpage.com that knowingly facilitate sex trafficking of children must be held accountable. Sex trafficking is an ongoing issue in Florida and across our nation, and this legislation is an important step forward in ensuring that those engaging in and helping to facilitate these crimes are held responsible and all victims receive the justice they deserve.”

And yet, as we pointed out, nothing in CDA prevents the DOJ from going after Backpage if it actually engaged in prostitution or sex trafficking. Indeed, it's been widely reported that the DOJ has been investigating Backpage. The fact that no charges have been brought by the DOJ is at least worth noting. It's possible that more investigation is needed, or it's possible that there actually isn't a violation that the DOJ could find.

But, either way, this latest ruling, allowing at least some of the money laundering charges to move forward raises the question of why we need to rush forward with this new bill, that will have massive and much wider consequences for the internet. Law professor Eric Goldman has a thoughtful analysis of this latest ruling, in which he suggests this shows that calling out Backpage by all those Senators has likely always been a smokescreen for attacking the underpinnings of the internet:

This ruling has potentially important consequences for the pending bills to amend Section 230. Much of the rhetoric about the bills has specifically targeted and called out Backpage–and only Backpage. A key assumption for the bills is that Backpage needs to be crushed and existing law isn’t getting the job done because of Section 230. As this ruling shows, existing law may in fact be sufficient to crush Backpage irrespective of Section 230. As a result, there is no need–and certainly no urgency–to rush through amendments to Section 230, with potentially major consequences for the entire Internet, while courts are still resolving the matter. (Indeed, that would be true even without this ruling because of the pending grand jury investigation into Backpage in Phoenix that may use the SAVE Act, the anti-Backpage law Congress just enacted in 2015).

However, it’s possible that, despite the anti-Backpage rhetoric, the advocates supporting the pending bills aren’t really targeting just Backpage but have larger objectives to undermine or eviscerate Section 230. I expect this ruling will expose the advocates’ true agendas. Because a state prosecution of Backpage is making progress without any changes to Section 230, those advocates should be willing to acknowledge that amendments to Section 230 aren’t essential to achieve their anti-Backpage goal. More likely, I expect the bill supporters to shift the rhetoric about the need for the bills to deemphasize Backpage as the target. If so, this would highlight that Backpage was only a surrogate target–and other Internet entities are also in the bills’ target sights. Once that rhetorical shift occurs, I think we deserve clear answers about who else the proponents expect will be affected by the bills–and how.

Again, SESTA is a huge threat to the way the internet works today -- and in a way that will actually do great harm to actual victims of sex trafficking. It's really depressing that those whose true aims are to undermine the internet are so coldly hiding behind false claims of protecting victims of sex trafficking just to attacking the internet.

Filed Under: california, cda 230, intermediary liability, kamala harris, money laundering, section 230, sesta
Companies: backpage, backpage.com

Appeals Court Mostly Fixes Bad CDA 230 Ruling Over Publicity Rights

from the dodge-one-bullet dept

The attacks on Section 230 of the CDA are coming in all directions these days, unfortunately. Last year, we wrote about a series of troubling rulings in California that opened up the possibility of chipping away at 230's important protections of internet services. If you're new here, Section 230 says you can't blame an internet service for what a user does with that service. This should be common sense, but because people like to sue the big companies rather than the actual people doing stuff, it's necessary to stop bogus lawsuits. A little over a year ago, we wrote about one of these troubling rulings in California, where a judge ruled that publicity rights aren't covered by CDA 230.

The case is pretty complex, but the very simplified version is that a "country rap" musician named Jason Cross, who uses the stage name Mikel Knight, has made a name for himself with a weird "street team" operation that travels around the country aggressively trying to get people to buy his CDs. Some of the people who were part of the street team (or possibly who knew them) weren't happy with the way Cross treated them and set up a Facebook group: "Families Against Mike Knight and the MDRST" (MDRST = Maverick Dirt Road Street Team -- which is what Cross calls the street team). Cross sued in Tennessee to try to find out who was behind the group and demand the page get taken down. He then also sued Facebook in California because why not?

Facebook hit back with an anti-SLAPP motion, pointing appropriately to CDA 230. The court accepted those arguments on some of the claims, but rejected it on the publicity rights claims from Cross, saying that publicity rights are "intellectual property" and intellectual property is exempt from CDA 230. That's... wrong, basically. And the 9th Circuit has clearly said that CDA 230's exemption of intellectual property only applies to federal intellectual property law. Publicity rights are state law.

Thankfully, as Eric Goldman lets us know, the California state appeals court has rejected the lower court's ruling, though for other reasons than that the lower court misunderstood CDA 230. Instead, the court ruled (also correctly) that publicity rights weren't even at issue in this case. It notes that California's publicity rights law requires the party (in this case, Facebook) to have "used" the plaintiff's identity. But that didn't happen here. In fact, the only thing argued is that Facebook put ads on these pages. That's not a publicity rights issue.

Nowhere does Knight demonstrate that the advertisements appearing next to the pages used his name or likeness, or that any of the advertisements were created by, or advertised, Facebook. All he claims is that Facebook displayed advertisements next to pages created by third parties who were using Knight‘s name and likeness to critique his business practices—and their allegedly fatal consequences. While Knight claims that ―Facebook continues to place ads on all the unauthorized Facebook pages, he necessarily concedes that his name and likeness appear not in the ads themselves, but in the content posted to Facebook by third parties.

[....]

The gravamen of Knight‘s complaint is that Facebook displayed unrelated ads from Facebook advertisers adjacent to the content that allegedly used Knight‘s name and likeness—content, Knight concedes, created by third-party users. He has not, and cannot, offer any evidence that Facebook used his name or likeness in any way.

[....]

In sum, the evidence demonstrates that Facebook has not used Knight‘s identity, and any right of publicity claims fail for this reason alone. Likewise for failure to show appropriation.

The court still isn't done:

Knight has not even alleged—let alone shown—that any advertiser used his name or likeness. He thus cannot establish that anyone, let alone Facebook, obtained an advantage through use of his identity. Indeed, the evidence Knight submitted below demonstrated either that no advertisements appeared alongside the pages at issue, or that the advertisements that did appear adjacent to the content posted by third parties made no use of his name or likeness. At most, Knight has shown that Facebook allowed unrelated third-party advertisements to run adjacent to pages containing users‘ comments about Knight and his business practices. This is insufficient.

The court chooses not to address the more basic issue of publicity rights under CDA 230.

The rest of the ruling is interesting in its own right, as Cross had also appealed the parts upholding Facebook's anti-SLAPP motion, but fails badly. The court notes that it's fairly obvious that the issue involves a topic of public interest, despite Cross's claims to the contrary. And then there are some weird claims attempting to piggyback on the Barnes v. Yahoo case from years back, in which Yahoo lost its 230 immunity because an employee directly promised to remove certain content. Cross tried to argue that Facebook's terms of service promise it, too, will remove content. But... that's very different, and not what Facebook's terms of service actually say. Separately, Cross claims (to make Barnes more applicable) that Facebook privately did communicate to him that it would remove content. The court's not buying it (neither did the lower court):

Contrary to Knight‘s assertions, the complaint does not arise from "private" statements or promises made to Knight in Facebook's terms. Indeed, similar arguments made by other plaintiffs against Facebook have been rejected by district courts, in language directly applicable here: "while Facebook‘s Terms of Service 'place restrictions on users‘ behavior,' they 'do not create affirmative obligations‘ " on Facebook....

Plaintiffs' brief states that "As a requirement to signing up for Facebook, Mr. Knight had to accept Facebook's Terms of Service. Among other things, the Terms of Service—along with certain 'supplemental terms' specifically incorporated by reference—prohibited harassing and violent speech against Facebook users. These supplemental terms also made an explicit promise to Knight: 'We remove credible threats of physical harm to individuals.' Facebook also stated that '[w]e want people to feel safe when using Facebook,' and agreed to 'remove content, disable accounts, and work with law enforcement when we believe there is a genuine risk of physical harm or direct threats to public safety.'"

As will be seen, there was much language in Facebook's terms and conditions providing for Facebook's discretion vis-a-vis content on its pages. But even if statements in Facebook's terms could be construed as obligating Facebook to remove the pages—which plaintiffs have not demonstrated—it would not alter the reality that the source of Knight's alleged injuries, the basis for his claim, is the content of the pages and Facebook's decision not to remove them, an act "in furtherance of the . . . right of petition or free speech."

The court also dings Cross for claiming that Facebook's terms say stuff they do not:

...even if Facebook's terms and community standards were the relevant statements or conduct at issue here, Knight has not identified any "representation of fact" that Facebook would remove any objectionable content. Indeed, the actual terms are to the contrary, providing in essence that Facebook has the discretion to remove content that violates Facebook policies. By way of illustration, the terms include that: "We can remove any content or information you post on Facebook if we believe that it violates this Statement or our policies." The terms also make clear that Facebook is not responsible for "the content or information users transmit or share on Facebook," for "any offensive, inappropriate, obscene, unlawful or otherwise objectionable content or information you may encounter on Facebook," or for "the conduct, whether online or offline, of any user of Facebook." As Facebook sums it up, "We do our best to keep Facebook safe, but we cannot guarantee it."

So, in the end, this is a good result, tossing out last year's bad ruling, though skipping over the CDA 230 question. And, as Eric Goldman notes, that keeps things at least a little murky:

Publicity rights law is a doctrinal mess. Courts routinely struggle with how to apply publicity rights laws to ad-supported editorial content that references or depicts a plaintiff. The appellate court got to the right place, but I don’t have much faith that future courts will do the same.

Filed Under: anti-slapp, california, cda 230, jason cross, mikel knight, publicity rights, section 230, slapp, street team
Companies: facebook

EFF Highlights How ISPs Are Lying To Californians To Try And Kill New Broadband Privacy Protections

from the trust-us,-we're-the-phone-company dept

When AT&T, Verizon and Comcast convinced lawmakers to kill broadband consumer privacy rules earlier this year, everybody in this chain of campaign-cash dysfunction got notably more than they bargained for. As with net neutrality, the relatively-modest privacy protections had broad bipartisan consumer support (our collective disdain for Comcast magically bridges the partisan divide). As a result, when the FCC's rules died, more than a dozen states rushed in to craft their own privacy rules that largely mirror the discarded FCC protections.

And while that creates the problem of multiple, potentially discordant (or just plain bad) state laws, that's probably something the broadband industry should have thought about before paying Congress to axe the FCC's privacy rules.

Obviously worried that states would step up and protect consumers where the FCC will not, ISP allies like Marsha Blackburn quickly got to work trying to pass new federal regulation that pretends to address privacy concerns, but is being designed primarily to pre-empt state efforts on this front. FCC boss Ajit Pai, who has previously defended protectionist ISP-written state laws as a "states rights" issue, suddenly turned on a dime here, stating he would be exploring ways to use FCC authority to keep states from protecting consumer privacy in the wake of repealing the FCC's privacy rules.

In California, Assemblyman Ed Chau introduced AB 375 (pdf) earlier this year. AB 375 mirrors the FCC proposal in that it requires that ISPs transparently disclose what private data is being collected and sold, while requiring ISPs provide working opt out tools. In some ways it goes further than the FCC's proposal, in that it specifically bans ISPs from charging broadband subscribers more money to protect their privacy -- something both AT&T and Comcast have flirted with. Needless to say, large ISP lobbyists are desperate to prevent this law from taking root.

The EFF has been documenting this week all of the misleading claims being made by ISP lobbyists as they attempt to scuttle the legislation. The ISPs, with their rich history of violating consumer trust on this subject, are telling the California legislature that privacy protections aren't necessary because ISPs have done nothing wrong. That ignores how Verizon was caught covertly modifying packets to track users around the internet, how ISPs have hijacked search queries for financial gain, how AT&T and Comcast made efforts to charge more for privacy, and how ISPs made efforts to use credit data to offer lower quality customer service to less affluent customers.

Again, these behaviors are all symptoms of a broader disease that nobody in either political party really wants to fix for fear of upsetting powerful campaign contributors: a lack of broadband competition. And while these regulatory patches certainly aren't ideal, until we actually decide to do something about a lack of competition -- these protections are/were the only thing standing between your family and Comcast's ability to nickel and dime the living hell out of you in a rotating array of creative new ways.

The EFF notes that in addition to ignoring obvious, documented history (not even mentioning AT&T's cozy relationship with the NSA), AT&T lobbyists are also pushing the narrative that the state law isn't necessary because FTC authority over broadband providers is plenty good enough moving forward:

"To California’s Legislature, AT&T right now is saying the following:

"AT&T and other major Internet service providers have committed to legally enforceable Privacy Principles that are consistent with the privacy framework developed by the FTC over the past twenty years."

In essence, there is no need to pass a state law because the Federal Trade Commission can enforce the law on us.

But we've noted already how AT&T lawyers are currently suing the FTC to try and ensure the agency has no authority over AT&T businesses whatsoever. We've also noted how this is all part of an ISP lobbying plan to gut FCC authority over broadband providers by rolling back Title II (net neutrality being just a small part of this), then shovel all remaining authority to an FTC that lacks the resources, authority, or funding to police duopoly ISP behavior. The goal is really quite simple: little to no actual oversight of some of the least competitive and least-liked companies in America.

And, as the death of privacy and looming death of net neutrality rules can attest, so far this plan is going swimmingly for ISPs. Except for the dozen or so states actually interested in standing up for their citizens' privacy rights.

While the EFF had previously warned that killing the FCC rules would cause a wave of less-ideal state-level laws, they're supporting AB 375 as they feel it's a good template for other states to follow for some consistency on this front:

"EFF supports states responding to the demands of the public for privacy protections, particularly in light of Congress having failed to do so. It has become even more important as the Federal Communications Commission itself is actively undermining consumer protections on behalf of Comcast, AT&T, and Verizon. It should surprise no one that state legislators who care about consumer privacy will act and ultimately having as many state laws on the books as possible to protect personal information is a superior outcome to having no clear protections at all.

And if A.B. 375 becomes law, we hope it would serve as the model for states across the country to avoid a patchwork problem, but again this problem was created by the ISP lobby repealing the federal rules in the first place."

So far ISP efforts to derail California's proposal (including having former FTC boss Jon Leibowitz pen misleading op/eds lobbying for ISPs against privacy protections) have seen mixed results, with the bill passing the first of several hurdles in the California legislature earlier this week. But again, California's fight is far from over. And it's just a microcosm of ISP attempts to remove already fairly-tepid oversight of the telecom sector, under the pretense that zero accountability for uncompetitive duopolists like AT&T and Comcast somehow magically results in connectivity Utopia.

Filed Under: broadband, california, competition, fcc, ftc, privacy
Companies: at&t, comcast, verizon

California's Anti-SLAPP Law Saves Another News Publication From Bogus Lawsuit

from the good-to-see dept

In March we wrote about the unfortunate situation of two news publications in nearby Santa Clara, California in court in what appeared to be a clear SLAPP suit. The more established publication, "Santa Clara Weekly" and its publisher Miles Barber, had sued a new upstart, "Santa Clara News Online" and its publisher Robert Haugh. It seemed fairly clear that Barber didn't like the fact that Haugh had been criticizing the Weekly, and the lawsuit was just filed to make a nuisance for Haugh. It was notable that the complaint didn't cite a single blog post by Haugh or even quote him. It just paraphrased (badly) a bunch of clearly opinion statements from Haugh. Haugh got assistance from Ken "Popehat" White, who asked the court to strike the lawsuit for violating California's anti-SLAPP law.

Thankfully, the judge in that case has agreed and dumped the case, and has denied Barber's request to file an amended complaint on top of that. As of yet, there does not appear to be a full ruling on this, but congrats to Ken White and Robert Haugh for succeeding here. And, once again, this is a reminder of the need for strong anti-SLAPP laws. They help get rid of frivolous, censorious cases quickly, and they make the plaintiff pay the legal fees of the defendant (which also helps to deter other such frivolous cases).

Filed Under: anti-slapp, california, defamation, free speech, miles barber, robert haugh, santa clara, santa clara news online, santa clara weekly

Public Defenders Continue To Fight Back Against California's Broken Case Management Software

from the CRIMINAL-JUSTICE-SYSTEM-has-crashed.-Restore-from-backup? dept

In California, the future of criminal case management is now. But the future appears to be broken, and "now" is looking much worse than the recent past. Odyssey is the state's buggy new case management software -- one that's been keeping people from being released, putting people with dismissed charges in jail, and otherwise making the criminal justice system even more horrible than usual. Tyler Technologies, the creator of the software, has called this transition "challenging." (It's also called this rolling cockup a "transition," so…)

Public defenders -- already overworked when things are normal -- are the ones being tasked with sorting out a long stream of erroneous computations and attempting to make things right for the human beings on the receiving end. This is an additional workload public defenders didn't need.

Since [December 2016], the public defender’s office has filed approximately 2,000 motions informing the court that, due to its reportedly imperfect software, many of its clients have been forced to serve unnecessary jail time, be improperly arrested, or even wrongly registered as sex offenders.

The court's response to multiple pleas by public defenders to force someone in the Californian government to clean up this mess? Shit happens. Deal with it.

Although the court recognizes that Odyssey has resulted in unlawful arrests and searches, clerical errors that affect a defendant's Fourth Amendment right to privacy will occur regardless of the case management system used by the court.

Understandably, this non-redress of grievances failed to satisfy public defenders. Cyrus Farivar reports they're headed back to court to appeal the court's do-nothing order.

“These delays and errors violate Government Code § 69844’s express requirement that Superior Court clerks enter judicial orders ‘forthwith,’ as well as the constitutional right to a complete and accurate record on appeal and the Fourth Amendment prohibition upon unlawful arrests and illegal searches,” Charles Denton, an assistant public defender, wrote in his April 10 brief.

The more significant point of the filing [PDF] is this: without pressure from the courts, the problems created (and exacerbated) by the new case management software's rollout will continue to snowball.

For, as we have noted, respondent’s staff concedes that, without a change in software or staffing, it will never be able to “provide a complete and fully accurate record of court proceedings”... The numbers bear this out. The bottleneck in processing commitment orders for the more than 100 state prisoners languishing in county jail is months long, and, seven months after Odyssey’s rollout, there is an ever-growing backlog of more than 12,000 “paperless” files that are missing minute orders, filings, and transcripts.

At this point, being booked in Alameda County is to be forcibly subjected to a malfunctioning criminal justice slot machine. Maybe it will pay off for a few people, but the odds are still on the house. A system that's already largely broken doesn't need assistance from outside vendors' buggy software.

Filed Under: california, case management, criminal justice, public defenders
Companies: tyler technologies

Legislators, School Administrators Back Off Cellphone Search Bill After Running Into ACLU Opposition

from the shocked-SHOCKED dept

Legislators working with the Association of California School Administrators are backing away slowly from a bill aiming to separate schoolchildren from their phones and their privacy. The bill would have created an exception in California's privacy law, allowing teachers and school administrators to search the contents of students' phones. Courthouse News' Nick Cahill has more details:

While short in length, the bill has stature. Its 130 words would exempt students from the California Electronic Communications Privacy Act, CalECPA, which was passed in 2015 with overwhelming bipartisan support in the Legislature.

“That law also specifies the conditions under which a government entity may access electronic device information by means of physical interaction or electronic communication with the device, such as pursuant to a search warrant, wiretap order, or consent of the owner of the device,” the new bill states.

This attempt to further limit students' Constitutional rights and legal protections ran into the ACLU's opposition, which noted the exception would "sledgehammer" the Fourth Amendment. Apparently, the backers of the bill thought it would sail through with a minimum of public resistance. Having failed to foresee the expected, supporters are rebranding their civil liberties sledgehammer.

“We’re making it a two-year bill, which means it’s not going to be heard next week. But the conversations are going to continue,” said Laura Preston, lobbyist for the school administrators.

Ah, the classic "wait until the noise dies down and try again" approach. It's just crazy enough it might work. I doubt the legislation itself will be rethought. More likely, the sales pitch will be altered to make the bill appear less sledgehammer-y.

Considering California is pretty much Protest Central, it's a bit stunning to read a legislator was "stunned" by collective opposition to a privacy-threatening bill. But that's exactly how the bill's author, Jim Cooper, described his reaction. The lobbyist for the schools, Laura Preston, went even further, utilizing the post-Godwin Nuclear Option rhetorical device:

“We introduced the bill to try and pull schools out of CalECPA, and you might as well have thought that we started World War III,” Preston said of the reaction.

Supporters of the bill claim the lack of an exception to the privacy law leaves administrators powerless. True, a school administrator can't seek a warrant to access the contents of a student's phone, but there are options schools can use rather than exempt every California student from the state's privacy law.

Most schools have electronic device policies that tie search consent to school attendance, which usually includes personal electronic devices along with vehicles parked on school grounds and lockers. A consensual search -- even if performed under an "implied consent" standard rather than a more affirmative version -- is still a "clean" search, though possibly one less likely to survive a courtroom challenge. Many schools also have police officers on staff. Whether or not these officers can seek warrants to access phone contents is unclear, but in cases of suspected criminal conduct, this would be turned over to law enforcement anyway.

Supporters undercut their Homeroom Apocalypse arguments with their own statements, though.

Since CalECPA was enacted, students have been refusing to hand over their cellphones to teachers and administrators, Preston said. She said teachers usually want access to cellphones to prevent cyberbullying and cheating on tests, not to delve into social media or text messages for criminal content.

I'd really like to hear how paging through some kid's phone "prevents cyberbullying." It may be used to find evidence of ongoing cyberbullying, but it's not going to head it off. If it's really bullying, there are a variety of school policies and law enforcement options available to school administrators that don't involve digging through a student's phone -- a device that will contain far, far more personal info than should be sought by administrators with zero law enforcement training or acumen.

Cheating on tests can be resolved simply by requiring phones to be secured somewhere away from the testing area, like in students' lockers or in instructors' possession until testing is complete. Digging through someone's phone might expose a cheater, but it really seems like overkill considering the privacy issues at stake. It's also not something that should involve any on-site law enforcement officers, even if their powers are slightly limited.

What is clear is "stunned" politicians and school administrators haven't given up on their dream of crushing students' Fourth Amendment protections. No doubt the ACLU -- and others -- will be keeping an eye out for Sledgehammer 2.0 later this year.

Filed Under: 4th amendment, california, mobile phones, privacy, schools, searches
Companies: aclu

The Teddy Bear And Toaster Act Is Device Regulation Done Wrong

from the not-the-right-approach dept

Should government to protect us from snooping teddy bears and untrustworthy toasters? The California State Senate seems to think so.

With traditional devices on the decline, laptop and desktop computers now account for less than 25 percent of internet network traffic. Indeed, American households now use, on average, seven connected devices every day. As this so-called “internet of things” continues to expand, an array of connected objects—from toasters to lightbulbs to dishwashers—now include embedded microprocessors, multiplying the number of potential threat vectors for data breaches and cyberattacks.

Notably, security researchers revealed recently that CloudPets, a company that sells connected stuffed animal toys with voice-recording capabilities, had a security vulnerability that leaked the information of more than 500,000 people. In response to accounts like these and concerns about data collection by internet-of-things devices, California is considering S.B. 327, legislation that would require certain security and privacy features for any connected devices sold in the Golden State.

Device insecurity is a real threat and it's encouraging to see legislators thinking about consumer privacy and security. But this bill, facetiously called the “teddy bear and toaster act” by its critics, would create more problems than it solves. These concerns do not merit a heavy-handed and wide-reaching legislative response.

First introduced in February, the bill targets a broad range of products that include “any device, sensor, or other physical object that is capable of connecting to the internet, directly or indirectly, or to another connected device.” It would require that their manufacturers “equip the device with reasonable security features.”

The scope and scale of that definition would appear to cover everything from smartphones to cars to tweet-happy toasters. Sweeping such a broad range of connected devices under its rules ignores that all of these items have unique functions, capabilities, and vulnerabilities. What constitutes a “reasonable security feature” for one might be completely unreasonable for another. This one-size-fits-all regulatory approach threatens to chill innovation, as companies from a host of different sectors expend resources just to make sense of the rules.

Should the bill move forward, we should also expect a range of consumer items will be equipped to blink and buzz and beep in ways more annoying than informative. The bill decrees that: “a manufacturer that sells or offers to sell a connected device in this state shall design the device to indicate through visual, auditory, or other means when it is collecting information.”

For some types of devices—such as virtual and augmented reality systems and autonomous vehicles—this requirement is simply infeasible. These devices use sensors to collect data constantly in order to perform their core functions. For always-on devices like IP security cameras, Amazon Alexa or connected cars, an indicator would just be synonymous with an “on” button. Many of these indicators will be superfluous, misunderstood and costly to implement—costs that disproportionately would hit smaller businesses.

Other provisions of the bill urge sellers of connected devices to notify consumers at checkout where they can find the item's privacy policy and information about security patches and updates. This is valuable information, but the point-of-sale may not be the best time to communicate it. For many devices, a verbal or web-based tutorial likely would be more effective. Companies need the flexibility to figure out the best ways to inform their customers, while these design requirements would remove that flexibility.

In an interconnected world, balancing privacy rights and security is a hugely difficult undertaking. Enshrining that balance in law requires a nuanced and targeted approach. Policymakers at both the state and federal levels should focus their efforts on provable privacy or security harms, while empowering consumers with baseline information, where appropriate. Applying design requirements and compliance tasks in a haphazard way, as S.B. 327 does, will harm innovation without meaningfully improving data security.

Anne Hobson is technology policy fellow with the R Street Institute.

Filed Under: california, iot, mandates, security, teddy bear, toaster

Secret Sorority Handshakes, Questionable Lawsuits, Free Speech, The Right To Be Forgotten And Section 230

from the a-little-bit-of-everything dept

Late last week (beyond filing a new document in the lawsuit against us), we also filed an amicus brief, put together by Stanford's IP law clinic and Paul Levy at Public Citizen regarding a terrible and dangerous ruling for free speech in California. We wrote about it last summer and how dangerous it is -- but let's hold off on the details of the case right now.

Instead, I'd like to go back one more year to May of 2015, when we wrote about a bizarre case in which the Phi Sigma Sigma sorority was officially suing a "Jane Doe" former member, who had apparently posted the sorority's super secret handshake to the Penny Arcade forums.

Phi Sigma Sigma (PSS) secretly stands for Philanthropic Social Society. However, this is never written down or recorded (until now) because it is so "sacred". The Handshake consists of a series of motions. Member A first begins with the pointer finger and the thumb surrounding Member B's pointer finger and thumb. This is the "Phi". Then Member A wraps the remaining fingers, middle, ring and pinky around the hand as a symbol of the "Sigma". Depending on who is the senior member, the pinky finger is wrapped around the older member's hand. Next is the hand knock. It goes Knock. Pause. Knock. Pause. Knock, knock, knock. The meetings are set up usually with the President, VP and other officers sitting at the front. The President wears a yellow or gold robe and the officers wear royal blue robes. The remaining members sit across from the officers in a pyramid formation with the base closest to the officers and the apex farthest from the officers. Members are seated by class order, then by alphabetical order. The table at which the President and Vice President are seated consists of candles on each side. Two gold candles and one blue at each corner of the table. Members usually recite an oath, "We, the members of Phi Sigma Sigma, promise to keep secret and sacred all of our proceedings." The way to enter the pyramid is by using the hand knock to notify the members you are wanting to enter the room. The President will respond back with her gavel by repeating the knock. The person will enter then travel to the apex of the pyramid formation. The President will say the secret and sacred words "Remove the Veil" and then the member will respond back with the Chapter's name, example, "Zeta Eta." The Gold and King Blue symbolize "Perpetuity" and "Sincerity". At initiation, blue "veils" (tulle from the local fabric store) are placed on the heads of the potential new members and are later removed to symbolize some sort of occult transformation and that they are full-fledged members.

Bizarrely, the post with the secret handshake was posted years after the thread had started, and it was unlikely that many people were looking at it. Well, that is until the sorority decided to go legal about it. First, Phi Sigma Sigma had a lawyer come up with the bright (note: not actually very bright) idea to send a bogus DMCA notice on Penny Arcade arguing that the post needed to come down because it violated the sorority's "trade secrets." That's funny, because the "C" in DMCA stands for "Copyright" and not "Ctrade secrets" and it's highly unlikely the secret handshake is, in any way, a "trade secret" in the first place. The lawyers followed this up by suing the "Jane Doe" in King County Superior Court in Washington. Why King County? There's no indication that Jane Doe is from that area, but that does cover where Penny Arcade is based -- and perhaps if you want to pressure a website to remove some content, you figure it'll be more amenable to seeing something from a local court even if (and this is kind of key) Penny Arcade was never a party to the lawsuit.

For whatever it's worth, Phi Sigma Sigma "won" the lawsuit because "Jane Doe" apparently was never properly identified and served, and thus Phi Sigma Sigma won a default judgment last fall, which is effectively meaningless. Except, with that "order" in hand, Phi Sigma Sigma's lawyers have been going around asking people to take down the handshake -- including us here at Techdirt. To be fair, at least with us, there was no clear threat involved if we refused -- as we have -- but as we've seen multiple times in the past year or so, many sites will immediately take stuff down after receiving a court order like that. Indeed, it appears that Penny Arcade chose (for whatever reason) to take down that thread themselves.

Of course, this certainly opens up the possibility of censorious mischief. Almost exactly a year ago, we wrote one of the first articles detailing an apparent "reputation management" scam that involved posting possibly defamatory comments on certain stories, followed by defamation lawsuits being filed against the John Doe commenters, only to have (miraculously!) a signed admission show up a couple of days later, allowing a tidy "settlement" to be reached, complete with a court order that can then be shopped around to various sites asking them to take down the content. A few months later, Paul Levy and Eugene Volokh tracked down a number of similar cases that were clearly being used to take down content someone didn't like, and abusing the court system to do so.

That does not mean that's what Phi Sigma Sigma was up to here, but a recently turned up FAQ about the lawsuit for members of Phi Sigma Sigma, while making it clear the sorority is not suing the websites, certainly suggests that the intent of the lawsuits is to obtain legal pressure to get sites to remove the content:

If you can't see those images, they are 3 questions and answers (numbers 5, 7 and 9) from a longer document, each of which has answers claiming the goal of these lawsuits is to get this content off the web. "We hope that through this lawsuit, we will have the authority to have any remaining and future posts also removed." "We are hopeful that through this legal action, they will be required to take down the post" and "Our ultimate goal is to have all posts related to our ritual removed as soon as possible." That last one is in response to a question specifically about "the outcome of this lawsuit." That certainly suggests that, contrary to other statements about identifying the individual responsible, or getting an injunction against them, the true intent is to get sites to delete information.

With Phi Sigma Sigma we have refused, as we should have every right to do (and, we might also state our opinion that it seems like a fairly poor decision on the part of the sorority and its legal team to make this effort that seems to serve only to call more attention to the content it wishes hidden from view). We also won't even bother to dig into how, elsewhere, the FAQ falsely claims that Phi Sigma Sigma has to take this action or it risks "losing" its intellectual property. First, this isn't true of copyrights at all (and there doesn't even appear to be any copyright issue here in the first place, questionable DMCA notice notwithstanding). Second, it only applies very narrowly to certain situations involving trademarks becoming declared "generic." That is not -- at all -- the situation with people posting the details of a secret handshake clearly identified as coming from Phi Sigma Sigma (and, once again, raises questions about the quality of the legal advice Phi Sigma Sigma is getting).

Now that brings us back around to the amicus brief that we filed Friday along with Public Citizen. It is in the case of Hassell v. Bird, that we wrote about last summer, in which -- contrary to nearly all Section 230 case law -- non-party Yelp was ordered to remove a review. The details of the case involve a lawyer, Dawn Hassell, who sued a former client, Ava Bird, for posting a negative review of Hassell's work on Yelp. Bird did not respond to the case, and thus the court granted a default judgment, as is standard. But here's where the court went a step too far: it then ordered Yelp to remove the posts. Yelp was not a party to the lawsuit, and basically all of Section 230 law says that it should not be obligated to remove the content (it can choose to do so, but Section 230 is clear that it should be immune from legal liability over its decision).

In the amicus brief, we explain how this runs counter to basically all Section 230 caselaw, but, perhaps more importantly, further point out examples (including our current discussions with the lawyers for Phi Sigma Sigma) where this kind of ruling could lead to abuse, and the forced removal of First Amendment protected speech -- whether under good intentions or ill intentions. Specifically, we note that, if the ruling in Hassell v. Bird stands, then an entity such as Phi Sigma Sigma, could potentially follow the same path as Hassell to force us to remove the details of that handshake, despite there being perfectly good First Amendment-protected reasons for leaving it posted. As Eric Goldman wrote when this ruling first came out, if it stands, it creates a de facto right to be forgotten in the US that could (and would) be widely abused to force sites to take down all sorts of content. We hope that the California Supreme Court will overturn the lower court's ruling.

Filed Under: california, defamation, free speech, hassel v bird, protected speech, reviews, section 230, takedowns
Companies: phi sigma sigma, yelp

Court Strikes Probation Restrictions Banning Teen From Using Encryption, Accessing Internet For Personal Reasons

from the not-just-unreasonable,-also-stupid dept

The Appeals Court of California has examined a set of release restrictions imposed on a teen convicted of minor sodomy against his girlfriend. The lower court -- realizing it was being asked to step in and act as a proxy parent for the teen's internet use -- handed down a lengthy list of restrictions supposedly aimed at keeping the teen from committing further criminal acts. This included several restrictions on the teen's internet use, for reasons only apparent to the lower court. (h/t Volokh Conspiracy)

Fortunately, the Appeals Court has struck many of these restrictions, finding most of them overly-broad at best, and unreasonably (and unconstitutionally) restricting at worst. Most of these seem to have stemmed from the teen's admission that he masturbated to internet porn once a week -- something that could be said for a great many US citizens of many ages. That the court connected this to the crime committed appears to be the result of a prudish mindset: one that still believes access to pornography leads to criminal sexual acts, despite a great deal of evidence to the contrary.

Nevertheless, the lower court felt the way to righteousness led through cutting Mike H. (as the court refers to the minor) off from the internet as much as possible. The Appeals Court does some drastic pruning of the lower court's order, starting with bringing the case up to date to establish that the restrictions imposed had very little to do with the criminal act the teen was charged with. From the decision [PDF]:

Mike stated he had anal sex with C.C. because she was his girlfriend; he denied bribing her, telling her not to tell anybody, or keeping her from calling for help. There is no indication Mike used the Internet, a computer, or social media to contact or lure C.C. or otherwise plan his offense. Mike and C.C. communicated by text message, and Mike denied planning or fantasizing about the offense ahead of time.

Afterwards, Mike felt it was the "stupidest thing" he had ever done. The probation officer believed Mike was at "low risk for recidivism"; the psychologist agreed, stating Mike's "[r]isk factors for sexual acting out appear to be low." He had never committed a sex crime before and had not reoffended at the time of sentencing.

This was the "minor sodomy." Mike was 14. His girlfriend was 15. There was some question as to whether the act was wholly consensual, but Mike's plea deal reduced the charges to this single count.

Next, the court addresses the many, many stipulations put in place by the lower court at sentencing. A great many of them are either overly-broad, unconstitutional, or completely ridiculous. All of the restrictions hang on the sheerest of legal connective tissue.

The only connection between Mike's admitted offense of sodomy on a minor and computers or the Internet was Mike's admission to the probation officer he masturbated approximately once per week while viewing Internet pornography on his smartphone. Although the court acknowledged Mike's offense did not involve a computer or the Internet, it found the restrictions warranted because Mike had used his smartphone to access inappropriate websites.

Here are the first four restrictions the Appeals Court found unconstitutional.

Condition 39 prohibits Mike from knowingly accessing the Internet or any online service without supervision by a parent, legal guardian, or teacher. Condition 54 prohibits him from having a social media page or using MySpace, Facebook, or similar social media programs. Condition 58 prohibits Mike from knowingly using any electronic device (such as a computer or smartphone) "for any purpose other than school-related assignments, or legitimate work or personal purposes," as defined by the probation officer, and requires Mike's use of electronic devices to be supervised "by a responsible adult over the age of 21 who is aware that the minor is on probation, is aware of the minor's charges, and is aware of the limits on the minor's computer use." Finally, condition 59 prohibits Mike from using a computer "for any purpose other than school related assignments" and requires supervision of computer use in school and in the common area of his home.

Addressing these in bulk, the court says the restrictions are not only unconstitutional, but serve no purpose whatsoever in terms of rehabilitation and reducing recidivism.

Using a computer or the Internet is not inherently criminal, and the court acknowledged the crime did not involve a computer or the Internet. Mike did not use the Internet, social media, or a computer to communicate with C.C. or otherwise facilitate his offense.

[...]

Here, as in J.B. and Erica R., there is no relationship between the minor's admitted conduct of sodomy of a minor and his use of the Internet or electronic devices. There is little reason to believe broad Internet and electronics use restrictions like the ones imposed here will serve a rehabilitative function by deterring Mike from future criminal activity.

It calls out Condition 59 in particular for being completely unreasonable.

Condition 59 is even more extreme. A blanket restriction forbidding Mike from using a computer for anything other than school-related assignments precludes his extracurricular use of a computer to write letters, create art, use software to learn a foreign language, read the news, check sports scores or movie times, research medical information, and obtain other legitimate information wholly unrelated to his criminal conduct in this case. Such a broad restriction is not narrowly tailored or reasonably related to the state's interest in rehabilitating Mike.

The court also strikes the condition forbidding Mike H. from accessing internet pornography. It notes this imposition plays hell with the First Amendment if not narrowly-crafted. This restriction isn't, so away it goes.

We conclude restrictions on pornography and sexually explicit content are not reasonably related to the state's interest in rehabilitating Mike. There is no apparent connection between the crime and Mike's viewing of Internet pornography or sexually explicit material.

The most ridiculous restriction handed down comes paired with banning Mike H. from creating anonymous social media accounts. The Appeals Court finds the anti-stalking/harassment probation stipulation somewhat justifies preventing Mike H. from obscuring his online identity. But it goes too far when it forbids him from using encryption. As the Appeals Court points out, not only is this stipulation overly-broad, but it's impossible to comply with given the current state of internet-based communications.

Given the ubiquity of encryption technology, condition 45 is overbroad as formulated. As Mike notes, "encryption is standard-issue on every iPhone and Mac, with Google requiring new Android phones to be encrypted; every web page that begins 'https' uses encryption, including, for instance, every page on Netflix.com, every page on Wikipedia, and every page created by the federal government." [...] In recent years, Apple, Google, Facebook, WhatsApp, and Blackberry have all "announced plans to implement end-to-end encryption on a default basis. This means that encryption is applied automatically without a user needing to switch it on."

The Appeals Court points out that banning someone from using encryption is pretty much the same thing as banning them from using the internet… or a smartphone.

Here, the juvenile court may have reasonably sought to prevent Mike from concealing his online activity or electronic communications through encrypted programs or applications. However, as formulated, condition 45 effectively prohibits Mike from using the Internet or a smartphone. By virtue of accessing certain websites or even turning his smartphone on, he would risk violating the condition. As drafted, condition 45 is therefore unconstitutionally overbroad. It is also impermissibly vague, given other probation conditions allowing Internet and smartphone use.

This is the sort of thing that happens when judges (and prosecutors making probation recommendations) don't understand the technology they're dealing with. It only gets worse when the stipulations are predicated on the ridiculous presumption that viewing porn leads to criminal sexual acts. Fortunately, the Appeals Court has eliminated many of the worst probation conditions. What's left in place won't make it much fun to be Mike H. for the next few years, but that's kinda the point. What won't fly are restrictions that stomp all over a person's civil liberties and basically forbid them from accessing the internet.

Filed Under: california, court, encryption, internet, probation, teens

California News Publisher Files SLAPP Suit Against Competing Online Publisher

from the this-is-a-bad-idea dept

In the news and publishing world, there tends to be pretty strong support for protecting free speech and, in particular, strong anti-SLAPP laws. After all, news publishers, are (unfortunately!) frequently targeted in SLAPP suits that are designed solely to shut up a news organization from reporting on something that someone doesn't like. That's why I'm always surprised when publications themselves seem to go after others for speech. But here we are, with a weird legal battle involving two publishers in nearby Santa Clara, California. The lawsuit was filed by Santa Clara Eagle Publishing and its boss Miles Barber against a guy named Robert Haugh, who just recently started an online-only publication called "Santa Clara News Online." Eagle Publisher/Barber, on the other hand, publish the more established "Santa Clara Weekly."

Haugh's Santa Clara News Online appears to be your typical local blog, with Haugh -- a local reporter for over 15 years -- posting news and opinion blog posts about local happenings in Santa Clara. Some of those blog posts criticized Barber and Santa Clara Weekly. And, thus, the lawsuit. Lawyer Ken White -- better known around these parts as Popehat -- is representing Haugh and has filed a lovely anti-SLAPP motion against Barber and Eagle Publishing, noting that it seems quite clear that the intent of the lawsuit was to try to silence Haugh from criticizing Barber and the SCW:

This case presents a classic story – a minor local luminary, incensed at bad press, abuses the legal system to lash out at critics, hoping that the ruinous expense of litigation will crush them even if the claim has no merit. Fortunately, California has a robust remedy: California Code of Civil Procedure § 425.16, the Anti-SLAPP Statute (“Section 425.16”). The Court should employ it to strike the complaint in this case, which is utterly meritless.

Rather tellingly, the complaint by Barber doesn't cite a single blog post by Haugh, nor even quote a single statement. It doesn't attach any of the actual posts, which you would kind of expect. Instead, it appears to paraphrase a bunch of things that Haugh's site posted -- mostly as clearly marked opinion -- and takes it out of context in the lawsuit filing:

Now Plaintiffs sue Mr. Haugh, claiming that he’s used the Site to interfere with the SCW’s relationship with Santa Clara, misappropriated the trade name “Santa Clara News online, defamed it and Mr. Barber, and put them in a false light. Plaintiffs’ Complaint is notably and strategically vague. It complaints of false statements, but does not cite or attach even a single blog post or statement, nor does it quote even one statement on the Site. Instead, Plaintiffs claim that Mr. Haugh made the following vaguely defined categories of statements, which Plaintiffs claim are false:

• “[T]hat the 49’ers had bought out the weekly and that the weekly serves as nothing more than a proxy for the 49’ers business interest,”
• “[T]hat Miles Barber is a misogynist and the Weekly’s criticism of the women of the city council were [sic] based on a desire to remove all women from the council,”
• “[T]hat the Weekly was not authorized to publish legal notices,”
• “[T]hat the Weekly’s advertisers do not see a return on investment,”
• “[T]hat Plaintiff has been skipping publication dates,” and
• “[T]hat numerous facts published by the weekly were not true.”

It turns out there are some problems with these allegations. Mostly in that they are misleading or inaccurate:

These vague assertions mischaracterize the actual content of the Site:

• On the Site, in columns explicitly labeled as opinion, Mr. Haugh identified facts underlying his questions about whether the SCW was “serving the needs of the San Francisco 49ers”: that the SCW had run a large 49ers ad nearly every week since 2010, that an associate editor of SCW promoted the 49ers’ sponsorship of her non-profit arts event, and that a Political Action Committee called BluPac associated with the 49ers reprinted stories printed in the SCW.
• The Site has never called Mr. Barber a “misogynist.” It has criticized him for a column in the SCW (Exh. R) in which he derided female City Council members, saying they could “barely spell their name.”
• Mr. Haugh has not asserted that Plaintiffs are unauthorized to print legal notices. Rather, in a guest letter written by Burt Field, Mr. Field explained that he had written to the City Clerk and City Auditor asking questions about whether the SCW met the requirements for legal notices.
• The Site’s sole reference to advertiser “return on investment” in the SCW came from a column – expressly labeled an opinion – in which Mr. Haugh referred to the fact that most of the candidates who advertised in the SCW in the 2016 local election were not elected.
• Contrary to Plaintiffs’ claim, the Site is not aware of any post asserting that the SCW has skipped publication dates.
• Though the Site has questioned factual claims in the SCW, each time it has done s so in opinion pieces that have expressly stated the basis for the question.

So, uh, yeah. That certainly makes it pretty clear that this is a SLAPP suit. There's also this fairly sketchy behavior:

[Haugh's] Site was initially located at stantaclaranews.wordpress.com until Mr. Haugh registered santaclaranews.org on October 27, 2016.... On November 21, 2017, more than a month after Mr. Haugh began publishing the Site under the name “Santa Clara News Online,” Plaintiffs filed a Fictitious Business Name application purporting to lay claim to that name, and in January 2017 published the claim.

Got that? In October, Haugh started publishing Santa Clara Online News. Less than a month later, Barber filed a fictitious business name application purporting that his company was using that name. Then, in the lawsuit, Barber argued that Haugh was "misappropriating" the name. That's... bad. Really bad.

Also, some of the complained about statements come from letters to the editor, which means that Haugh is easily protected under Section 230. This case has all the hallmarks of a standard SLAPP suit, and hopefully the court makes quick work of it thanks to California's anti-SLAPP law. But, really, the most ridiculous part of all of this is why would a news pulisher file such a lawsuit itself, in an age where a free press is under attack? It's incredibly short sighted to try to undermine press freedoms yourself, just because someone made fun of you a little bit online.

Filed Under: anti-slapp, california, defamation, free speech, journalism, miles barber, robert haugh, santa clara
Companies: eagle publishing, santa clara news online, santa clara weekly