Florida Governor Responds To Lawsuit Over Coronavirus Infection Documents By Pressuring Newspaper's Law Firm To Drop The Suit

from the yes-more-opacity-will-definitely-flatten-the-curve dept

We're at a time when we need more transparency from our government officials than ever. And, of course, we're not getting it. The White House ordered federal health officials to designate documents from top-level coronavirus meetings as classified, keeping them away from FOIA requesters. The nation's other coronavirus task force -- headed by Jared Kushner -- is carrying out its official business using private email accounts.

Things aren't much better at the state level. The Miami Herald filed a public records request seeking information about nursing homes in the state affected by the virus. The governor has repeatedly refused to release this information, which is putting healthcare workers and nursing home residents at risk. So, the Miami Herald sued. It notified Governor Ron DeSantis' counsel that it would be filing suit, as is required by the state's litigation process. The governor's lawyers responded by telling the Herald's legal rep to drop the case.

Florida Gov. Ron DeSantis’ general counsel called a representative of the Miami Herald’s law firm seeking to quash a public records lawsuit that would force the state to divulge the names of all elder-care facilities that have had a positive test for the coronavirus.

The back-door pressure — through an attorney that had no involvement in the case — paid off.

The law firm, Holland & Knight, told Sanford Bohrer, a senior partner with decades of representing the Miami Herald, to stand down and abandon the lawsuit.

The newspaper will not be abandoning its lawsuit. It has found another law firm to take up its case. But there's already a chill in the air, thanks to these actions.

It appears the governor's office spoke to a different partner in the firm, rather than the lawyer representing the paper. Conveniently, this member of the law firm has represented the state in other matters, making it that much easier to persuade the law firm to drop the Herald as a client in this case.

General Counsel Joe Jacquot sought to short-circuit the litigation. He didn’t call the lawyer who drafted the lawsuit and had sent the letter, but rather another Holland & Knight lawyer, George Meros.

Meros has represented the state on numerous matters, including its recent efforts to defend legislation that undermines the intent of Amendment 4, the ballot measure — passed overwhelmingly — that gives felons the right to vote after they have served their sentences.

Meros has represented a long list of state agencies during his career as an attorney. And his employer apparently felt the best step to take was to direct the paper to drop its lawsuit.

The governor is claiming his office did nothing wrong. His office's spokesperson says contacting a law firm to dissuade them from filing a lawsuit is just a normal pre-litigation tactic used to "avoid unnecessary litigation." That would make sense if the governor's office had called to settle or offer to turn over the records the paper is seeking. But it didn't do that. The governor's lawyer instead leaned on a law firm employee with a long history of defending the state in lawsuits and the firm obliged by "advising" the paper to drop the lawsuit.

There's enough plausible deniability built into this that the blame may lie with the law firm, rather than the governor's office. If the law firm wanted to pass on the lawsuit due to possible conflicts of interest, it could have said as much. And if the governor's office wanted to discuss the lawsuit during the five-day waiting period, it could have spoken to the paper's rep, rather than an attorney that had frequently defended the government in the past. None of that happened, and the paper was forced to hire a new legal rep to continue seeking information the governor's office should have been willing to release in the first place.

Filed Under: florida, foia, george meros, law firms, litigation, pressure, public records, ron desantis, sanford bohrer, threats, transparency
Companies: holland & knight, miami herald

Volunteers 3D-Print Unobtainable $11,000 Valve For $1 To Keep Covid-19 Patients Alive; Original Manufacturer Threatens To Sue

from the patents-are-more-important-than-patients dept

Update: One of the people who helped 3D-print the valve in Brescia says that they didn't receive a legal threat from the original manufacturer, Intersurgical, according to a new report in The Verge. Another person who helped make things happen, Massimo Temporelli, who earlier said they received legal threats for alleged patent infringement, is quoted as saying: "The group we asked for the files refused and said it was illegal". Intersurgical also denies threatening to sue. It states that it could not supply details for the valve because of "medical manufacturing regulations". Another news item says the official list price was not as high as the original Italian report suggested, but without giving a revised figure.

Whatever the details, the episode underlines why the 3D files of these kind of devices should be made available routinely to hospitals. That would allow them print in cases of urgent need, regardless of any claimed patents, so that this kind of situation doesn't arise at all, and lives are not put at risk. Original story follows:

Techdirt has just written about the extraordinary legal action taken against a company producing Covid-19 tests. Sadly, it's not the only example of some individuals putting profits before people. Here's a story from Italy, which is currently seeing more new coronavirus cases and deaths than anywhere else in the world. Last Thursday, a hospital in Brescia, in the north of Italy, needed supplies of special valves in order to use breathing equipment to help keep Covid-19 patients alive in intensive care (original in Italian). The manufacturer was unable to provide them because of the demand for this particular valve. The Metro site explains what happened next:

With the help of the editor of a local newspaper Giornale di Brescia and tech expert Massimo Temporelli, doctors launched a search for a 3D printer -- a devise that produces three dimensional objects from computer designs.

Word soon reached Fracassi, a pharmaceutical company boss in possession of the coveted machine. He immediately brought his device to the hospital and, in just a few hours, redesigned and then produced the missing piece.

Actually, it wasn't quite as simple as that suggests. Business Insider Italia explains that even though the original manufacturer was unable to supply the part, it refused to share the relevant 3D file with Fracassi to help him print the valve. It even went so far as to threaten him for patent infringement if he tried to do so on his own. Since lives were at stake, he went ahead anyway, creating the 3D file from scratch. According to the Metro article, he produced an initial batch of ten, and then 100 more, all for free. Fracassi admits that his 3D-printed versions might not be very durable or re-usable. But when it's possible to make replacements so cheaply -- each 3D-printed part costs just one euro, or roughly a dollar -- that isn't a problem. At least it wouldn't be, except for that threat of legal action, which is also why Fracassi doesn't dare share his 3D file with other hospitals, despite their desperate need for these valves.

And if you're wondering why the original manufacturer would risk what is bound to be awful publicity for its actions, over something that only costs one euro to make, a detail in the Business Insider Italia article provides an explanation: the official list price for a single valve is 10,000 euros -- about $11,000. This is a perfect example of how granting an intellectual monopoly in the form of a patent allows almost arbitrarily high prices to be charged, and quite legally. That would be bad enough in any situation, but when lives are at stake, and Italian hospitals struggle to buy even basic equipment like face masks, demanding such a sum is even worse. And when a pandemic is raging out of control, for a company to threaten those selflessly trying to save lives in this way is completely beyond the pale.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: 3d printer, italy, threats, ventilators

Group Promoting 'Religious Freedom' Around Vaccines Appears To Want To Stifle Free Expression Of Critics

from the not-a-good-look dept

As should be evident by the fact that our post from last fall about content moderation dealing with ignorant anti-vaxxers has amassed over 1700 comments (and more keep coming in), the anti-vax community seems to really like to flood the zone with bullshit, and keep talking until people debunking their nonsense are just completely worn out (and, yes, all of their nonsense has been debunked countless times). However, it appears that for all their talk of individual "freedom" sometimes they seek to silence others.

The latest example comes via a letter sent by lawyer Jay Wolman, in response to a cease-and-desist letter sent by the group CT Freedom Alliance LLC, which is a Connecticut-based group that has been actively fighting against a plan in Connecticut to remove broad religious exemptions for vaccinations. Brian Festa, the lawyer for the group (who is quoted extensively in the linked article) sent a cease-and-desist to someone, accusing them of defamation regarding CT Freedom Alliance and one of its co-founders, Dawn Jolly.

The letter from Wolman is worth reading in full. It starts out by noting that the lawyer, Brian Festa, appears not to be too familiar with defamation/1st Amendment law:

As we see your primary occupation is with the CT CHRO, our presumption is that defamation law is outside your usual practice. Allow us, then, to explain why your letter is deficient and what the most likely judicial outcome would be.

And while I would normally go through the letter in order, for this one, I think it's worth first jumping to the conclusion of the letter, labeled as "Section 3":

3.0 Stop This Nonsense

Your client states, on its website "[w]e pledge to never engage in censorship, groupthink or controlled messaging." ... Similarly, on November 22, 2019, your client stated on Facebook that it is "the arch nemesis of censorship and deception." And on November 8, 2019, your client stated that it is an organization "where every voice is heard, and not one is louder than the others." Your threat directly contradicts these statements. It is an attempt, through bullying, to censor our clients. It is an attempt to control messaging, to thwart the ability of anyone who disagrees with your client to be heard. It promotes but a single ideology, which necessitates groupthink.

In the immortal words of Master Yoda, "Stop it Now". Bad Lip Reading, "SEAGULLS! (Stop It Now)" (Nov. 25, 2016) available at https://www.youtube.com/watch?v=U9t-slLl30E

Thank you for your attention to this matter.

More to the point, Wolman points out that Festa's clients have no valid claim of defamation. Jolly and her organization are upset that Wolman's (unnamed) client allegedly "disseminated false information." But as Wolman points out, that claim is substantially true -- and also suggests in the process that Jolly has since deleted the evidence:

Our clients' statements are substantially true. For example, Ms. Jolly shared on Facebook (and has since apparently spoliated) the article [URL Removed], claiming "More effective than your damn flu shot". We have a copy, even though it does not appear currently visible on her public Facebook page. The linked article makes no such claim. Instead it links to an article [URL Removed], where the author of the study at issue actually "insists that those at risk continue to take their flu jabs." Thus, Ms. Jolly has disseminated inaccurate information.

Similarly, in what appears to be another spoliated post, Ms. Jolly shared on Facebook a post purporting to assert that autism is not genetic due to an absence of autistic parents and grandparents. The purported connection between vaccines and autism arise from Andrew Wakefield's discredited 1998 publication in The Lancet, which has been retracted.... Thus, Ms. Jolly uses retracted studies to support her claims.

It goes on from there, calling out that the cease and desist letter did not make clear what statements were defamatory -- which, as Ken "Popehat" White frequently says, is "the hallmark of meritless thuggery."

We have been guessing as to what it is, exactly, that you are claiming is libelous, i.e. the supposedly false information you claim our clients disseminated. You cannot merely present lengthy statements and expect us to determine what it is that you are claiming is false.

And then, in explaining the basics of free speech and the 1st Amendment, Wolman gets to insert a Marc Randazza (whom he works with) favorite from The Big Lebowski.

In brief, there is no reasonable expectation that your claims will be met with any success. There will be no damages awarded. There will be no injunctive relief. And, your threat of a temporary restraining order plainly shows you are unfamiliar with the well-established rule that “THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!”. Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998)).

Separately, just a few years ago, Connecticut joined many other states in adopting an anti-SLAPP law that means that Jolly and the CT Freedom Alliance would likely end up paying the other side's legal fees should it go to court:

Second, your clients will be liable to ours under the Connecticut Anti-SLAPP statute, Conn. Gen. Stat. § 52-196a. Dismissal will be swift. Our clients’ statements were all communications in public fora on public health, a matter of public concern. And, you lack probable cause under law, as set forth above, to bring your threatened libel claim. With those elements met, the statute mandates that our clients will be awarded their costs and reasonable attorneys’ fees. We would be happy to provide you with a list of cases in which we have recovered large fee awards in SLAPP suits so that you may properly advise your clients as to your proposed ill-fated adventure in litigation.

And, hey, even I get a shout out in the letter:

Should you proceed down the path of litigation and actually file suit, you should also advise your clients of their liability. First, they will have the misfortune of incurring the Streisand Effect. See Guttenberg v. Emery, 26 F. Supp. 3d 88, 95 (D.D.C. 2014) (describing “the dilemma faced by plaintiffs in defamation cases, who often end up publicizing defamatory statements much more than if they had not filed a lawsuit.”); see also, Masnick, Michael, “Since When is it Illegal to Just Mention a Trademark Online?” Techdirt (Jan. 5, 2005) available at https://www.techdirt.com/articles/20050105/0132239.shtml (coining the term). It is unlikely your clients have suffered any injury to their reputation on account of our clients’ statements. Your clients are apt to suffer far greater injury to their reputation, to the extent they might not already be libel proof, on account of their own statements and tactics should they turn to litigation and bring the frivolous suit you propose.

It's not often that I get mentioned in a letter alongside Master Yoda and Walter Sobchak. But, it all seems to be for a good purpose -- protecting the right to free speech.

Filed Under: 1st amendment, anti-slapp, anti-vax, brian festa, connecticut, dawn jolly, defamation, free speech, jay wolman, streisand effect, threats, vaccines
Companies: ct freedom alliance

Woman Threatens Rep. Steve King With A Lawsuit For Using A 12-Year-Old Meme On His Facebook Page

from the nothing-more-sincere-than-selective-enforcement dept

No matter what your political leanings are, this is just a very dumb thing to do. (via BentFranklin in the Techdirt Chat window):

The mother of the boy in the iconic "Success Kid" meme has threatened to sue Representative Steve King for using her son's image in his campaign. In a series of tweets Monday, Laney Griner said she never gave his campaign permission to use the meme and called King a "vile man."

Griner claimed King used an infamous copyrighted image of her son Sam, a minor, to raise money in a fundraising campaign without her permission.

Here's the Facebook post by Rep. Steve King that got Griner so upset she's threatening to waste money on a losing lawsuit (via Eric Hananoki):

The post isn't smart or funny and suggests King's supporters can only meme effectively by using other people's money. It's unclear how much money is needed to trigger liberals with bad memes, but the number of emojis deployed suggests it might be a lot.

Griner demanded "immediate removal" of the pictures of her meme son. King's people complied. She also demanded King post an explanation stating that it was used without permission and for all donations resulting from the post be refunded to donors. It's unknown if this has happened.

She's also threatening a lawsuit, which seems like a really bad idea. Griner may not want her son associated with Rep. King (and really, who can blame her) but this also seems to be about something else: money.

"The majority of U.S. consumers reject your political and other views, often vehemently, as they have a right to do," Griner's attorney said in the cease-and-desist letter. "Those people may be repelled by any association with your politics and campaign and, therefore, unwilling to purchase products from legitimate licensees of the 'Success Kid' meme."

I'm not sure what the overlap between Steve King fans and people-who-buy-licensed-meme-goods is, but I'm guessing probably not enough to show any substantial loss in the income column. This is about politics, rather than unlicensed use, as Griner's tweets make perfectly clear.

It's highly unlikely anyone viewed Steve King's post and thought the 11-month-infant (who is now a 13-year-old boy) supports King and his extremely controversial views. Enforcing IP rights selectively is always a bad look -- one that makes rightsholders look opportunistic, rather than truly wronged by whatever incident has prompted the enforcement effort. According to Know Your Meme, there were 66,000 instances of the meme using her copyrighted photo at Quickmeme alone. And that was in 2011. No one's making any noise about these but when Steve King uses it, suddenly it's a whole thing.

This isn't about IP protection. It's about politically-expedient enforcement. Griney could have asked Steve King to take it down and told everyone how displeased she was with this use. But she didn't do that. She hired a lawyer, issued a cease-and-desist, and threatened a lawsuit. Sure, she's well within her rights. But she's not doing anything to erase the perception that copyright is a handy tool for censorship and the silencing of people you just simply don't care for.

Filed Under: copyright, licensing, memes, steve king, success kid, threats

Company Sells Surveillance Cameras Hidden In Tombstones, Threatens Websites For Talking About Its Tombstone Cameras

from the HOT-FIST-ON-TABLE-ACTION dept

Thanks to a FOIA request by Open the Government policy analyst Freddy Martinez, we now know someone's trying to sell cops cameras they can hide in… gravestones?

A surveillance vendor that works with U.S. government agencies, such as the FBI, DEA, and ICE, is marketing spying capabilities to local police departments, including cameras that are hidden inside a tombstone, a baby car seat, and a vacuum cleaner.

The brochure highlights some of the capabilities on offer to law enforcement agencies, from the novel to the sometimes straight-up bizarre.

As Joseph Cox notes, the offerings from Special Services Group run a bit outside the expected assortment of light pole cams and surveillance-in-a-box kits. Starting after 90+ pages [PDF] of webinar announcements from Vigilant, the surveillance tech provider with a logo lifted from American currency, lists a variety of offerings, including this useful item which puts the "family" back in "crime family."

If the criminals you're tracking might find it a bit suspicious to see a child seat in car that never had one before, maybe they can be slyly observed by undercover janitors who follow them from room to room with a vacuum they never actually turn on.

And here's the tombstone camera system, which suggests grave robbing is far more prevalent than I thought it was.

SSG also offers other surreptitious recording devices, like an alarm clock/radio that can be inserted into suspected perps' hotel rooms and faux utility boxes that can be placed in non-conspicuous areas (provided no one notices the absence of conduit running to/from the mock box).

There's also scarier stuff in there as well. In addition to a variety of super-small cameras that can be mounted damn near anywhere, there's communication interception software that can apparently be implanted on suspects' phones or used by undercover officers who'd rather carry a phone than wear a wire. For whatever reason, SSG recommends using Samsung phones, but notes helpfully that other Android phones may support the software.

Then there's this: the most inconspicuous mic system yet, but one that looks uncomfortable, if not dangerous, for the person using it.

There's also a faux registration tag that can be placed over the real registration tag on a vehicle's license plate to emit trackable infrared pulses for up to 48 hours. If greater access to the vehicle is possible, the same thing can be accomplished by swapping out tail lamp bulbs for IR-flashing bulbs that allow cops to locate a vehicle using infrared or night-vision gear.

It's all in there: RFID cloning, covert recovery of suspects' PINs from alarm panels, etc., silent drills, door cutter kits, covert audio and video installation tools, and surveillance all-in-one solutions that can be moved easily from car to car to lower the risk of surveillance vehicles being burned by sitting in one place for too long.

Apparently, the release of this catalog was approved by the Irvine Police Department and its counsel. Despite that, SSG is handing out legal threats to everyone who's published the document.

When Motherboard asked Special Services Group for comment, the company did not respond. Shortly later though, a lawyer representing the company wrote a strongly worded legal email, demanding Motherboard not report on the brochure. The lawyer claimed that the brochure was protected under the International Traffic in Arms Regulations (ITAR), a set of rules that regulates the export of munitions, as well as copyright.

It sent a similar legal threat to MuckRock, claiming the publication of the document would put law enforcement at risk and said "recent world events" (Cox speculates this refers to developments in Iran) justified its obviously-baseless legal threats. Anyway, the document is embedded below and will probably bring about World War III if you start at page 93 and continue scrolling. Enjoy!

Filed Under: 1st amendment, export regulations, free speech, hidden cameras, itar, nda, secrecy, surveillance, threats, tombstone cameras, weapons
Companies: special services group, ssg

Alexander Vindman Now Threatens Bogus SLAPP Suit Against Fox News & Laura Ingraham

from the can-we-stop-with-the-slapps dept

SLAPP suits and SLAPP threats are flying back and forth these days. The latest is that Lt. Col. Alex Vindman, who is a key player in the impeachment hearings, is threatening a highly questionable defamation lawsuit against Fox News and Laura Ingraham, because she had on a guest who suggested Vindman was guilty of espionage (he's not). The threat letter was sent by David Pressman, a lawyer who works for Boies Schiller Flexner, a law firm which has a history of sending around bogus threat letters to the media for doing reporting.

Even if you think that Fox News is terrible (it is), that Ingraham is not to be trusted (she's not), and that her guests are fools (they are), this threat is still completely bogus and silly.

During their exchange, Ms. Ingraham said, “Here we have a U.S. national security official who is advising Ukraine, while working inside the White House, apparently against the president’s interest, and usually, they spoke in English. Isn’t that kind of an interesting angle on this story?”

“I found that astounding,” Mr. Yoo replied. “Some people might call that espionage.”

The Mr. Yoo in question is John Yoo, whose biggest claim to fame is writing the legal justifications for torture during the Bush administration. I wouldn't trust him to throw a ball to a dog, let alone opine on matters regarding the administration, but that doesn't mean that what he said was defamatory. As Ken "Popehat" White explained in a Twitter thread, even if everything Yoo and Ingraham said is ridiculous (and it is), there's nothing in there that rises to the level of defamation:

No matter which side of this you stand on, hopefully we can all agree that bogus threats of defamation, and silly cease and desist letters over people stating a (bad and dumb) opinion are not helping anyone.

Filed Under: 1st amendment, alexander vindman, cease and desist, david boies, david pressman, defamation, espionage, free speech, john yoo, lauara ingraham, slapp, threats
Companies: fox news