Judge Wants To Know Who's Behind Devin Nunes' Cow's And Mom's Twitter Account

from the but-does-he-need-to? dept

A new twist in the first of Devin Nunes' SLAPP suits: the judge has asked Twitter to reveal to him who is behind the two satirical Twitter accounts that Devin Nunes is suing over. According to the Fresno Bee:

A Virginia judge has asked Twitter to provide more information about the authors of two anonymous parody accounts that heckle California Republican Rep. Devin Nunes before deciding whether to dismiss the congressman’s lawsuit against the social media company.

Judge John Marshall is weighing a request from San Francisco-based Twitter to dismiss Nunes’ lawsuit on the grounds that it does not belong in Virginia.

Marshall asked Twitter to provide the names and addresses of the anonymous authors behind the two accounts, the gross amount of revenue for Twitter in 2018 and the first half of 2019 and the number of Twitter accounts in Virginia.

The issue, right now, is whether or not the cases should be thrown out for improper venue / jurisdiction shopping. Political consultant Liz Mair (who was also sued) and Twitter have both told the court that the case belongs in California -- and suggested (reasonably) that Nunes only filed in Virginia to avoid California's anti-SLAPP law (which would make him liable for their legal expenses).

So you can kind of understand why the judge wants to know where the still anonymous account holders live, as that could play into the venue question. However, it still seems like Judge Marshall's request is overly broad. He could have just asked for information, should Twitter even have it, of where the account holders reside (I'm not even sure if Twitter has such info). But there's no reason at all for the judge to need to know the names of the account holders, even if he promises not to reveal them, if the goal is to figure out what is the proper venue.

For what it's worth, both of the account holders deny being Virginia residents.

Since this is a request to Twitter, it's that company that is now on the hook here. Twitter has a pretty long history of pushing back on attempts to unmask anonymous or pseudonymous users by courts. It doesn't always succeed, but there are important issues at stake here. There are lots of times when angry recipients of parody accounts have tried to unmask who is mocking them. We see it all too often, and it's obviously an intimidation technique by thin-skinned public officials.

And, relatedly, the Supreme Court has ruled that anonymity itself is protected by the 1st Amendment, so these Twitter account holders shouldn't be forced to give that up just because a judge is curious, let alone because Devin Nunes' fragile ego is offended. While the judge can claim that he needs to know in order to determine if the case is in the proper venue, it seems that rather than requiring the names, merely knowing the general location (zip code?) of the account holders would seem to be a much more reasonable -- and Constitutional -- method of doing so.

Filed Under: anonymity, california, devin nunes, devin nunes cow, devin nunes mom, fishing expedition, parody, venue, virginia
Companies: twitter

Devin Nunes Discovery Requests Against Twitter, A Fake Cow, And Liz Mair Show Just How Much A Fishing Expedition He's On

from the oh-come-on dept

We've written a few times now about Devin Nunes' ridiculous lawsuit against Twitter, two parody Twitter accounts, and political strategist Liz Mair. In a news interview back in April, Nunes more or less admitted that these lawsuits were fishing expeditions to reveal journalists' sources on articles about himself that he didn't like. Meanwhile, both Twitter and Mair filed motions in the case saying that a Virginia state court is the wrong venue.

The court held a hearing on those motions today, and while the judge has not ruled, the Fresno Bee's article about the hearing lists out Nunes' discovery requests, which show just how much of a fishing expedition this case is. From the Fresno Bee (which is being sued by Nunes in a separate lawsuit):

His discovery requests are extensive, and include:

• The identity of anyone Twitter has done business with in Virginia since 2014
• Any time a Twitter employee has been present in Virginia since 2014
• Any telephone calls by Twitter employees to somewhere in Virginia since 2014
• All emails and text messages of Twitter employees or any of the defendants that mention Nunes
• All information related to the parody accounts @DevinCow and @DevinNunesMom, including phone numbers and all their tweets, messages, likes and retweets
• Everyone who donated to a political fundraising group called Swamp Accountability Project, which bought radio ads against Nunes, from Jan. 1, 2018 to March 18
• Mair’s tax returns dating back to 2016 and a report of her assets and liabilities
• Any communications between Mair or her company that mention Nunes

I mean, almost any one of those is crazy. The identity of anyone Twitter has done business with in Virginia since 2014? Any time a Twitter employee has been present in Virginia? Come on. Obviously, some of those are incredibly weak attempts to show why the case deserves to be in Virginia, but that's not how any of this is supposed to work.

Hopefully the judge sees this for what it is and dumps the whole thing.

For what it's worth, the article does note that the two parody accounts, Devin Nunes' Cow (@DevinCow) and Devin Nunes' Mom (@DevinNunesMom) are both unrepresented in the case:

The parody accounts did not have legal representation, though about 20 people sat in the courtroom in support of @DevinCow, sporting cow shirts, signs, stuffed animals and, in one case, a pair of cow ears.

It's possible that Nunes hasn't even served the two parody accounts yet, which could explain why they don't have lawyers in court yet.

Either way, one hopes that the judge recognizes this case for what it is: a frivolous, speech suppressing, unconstitutional fishing expedition by an apparently hypocritical, thin-skinned Rep. Devin Nunes -- who pretends to be in favor of free speech and against frivolous lawsuits -- and throws out the case entirely.

Filed Under: california, defamation, devin nunes, devin nunes cow, devin nunes mom, discovery, fishing expedition, liz mair, nunes cow, parody, virginia
Companies: twitter

Virginia Prosecutor 'Reform' Efforts Include Nailing Sexting Teens With Child Porn Charges And Screwing Defense Lawyers

from the you-misspelled-'reactionary' dept

Virginia has a mixed history when it comes to handling teens and sexting. For the most part, these cases have been handled with maximum vindictiveness, resulting in teens being charged with child porn production and possession. In rare cases, prosecutors have exercised more discretion, allowing these experiences to be educational rather than punitive. But default mode is still to use the law like a weapon, rather than a tool, as if justice were somehow achieved by ruining teens' lives forever for some stupid indiscretions.

A parent's firsthand experience with this has resulted in him calling out Theo Stamos, Arlington County Commonwealth's Attorney, for her attempt to portray herself as a reformer in her run for reelection. Jeff Edmeades' son was railroaded by Stamos for possessing intimate photos of a teen sent to him by fellow students. Exercising her vaunted discretion, Stamos decided to force his son into a plea bargain by hitting him with the harshest charges she could.

As she does in adult cases it seems, she essentially forced a plea deal by threatening to charge him with the maximum possible charges – one felony for possession of child pornography per image. That took defending him in court off the table

The resulting plea agreement was far from ideal. His son was sentenced to supervised probation and does not have the option to have his record expunged after he's done his time. Edmeades' letter to the editor points out it's actions like these that undermine Stamos' claims that she is fixing a broken justice system from the inside.

In many places, these issues are left to the parents and/or schools to resolve. Notwithstanding this recommendation, Stamos has, on multiple occasions, chosen to prosecute these cases – not because she had to, but rather because she chose to.

Once we were in the juvenile-justice system, which is in theory oriented towards education and rehabilitation rather than punishment, we found that Stamos was very comfortable using the full power of the legal system and the ambiguity around the law in this case to pressure us into accepting a plea deal.

If this is how Ms. Stamos treats children, is it any wonder that she uses the legal system as a blunt-force instrument of punishment with adults? She can say whatever she wants about how her goal is to improve communities and be fair, but her actions speak louder than her words.

It's not just the opinion of a parent who saw his son treated like a child pornographer for possessing photos of someone roughly his own age. It's also the state's defense lawyers, who have witnessed Stamos interpret "discretion" the same way she did in Edmeades' case: maximum charges brought to ensure a steady flow of plea deals. Their letter says Stamos' tactics make a mockery of a process that is supposed to recognize defendants' right to a fair trial.

We are concerned that nearly 98% of felony convictions in Arlington are the result of the defendant pleading guilty, exceeding the rate in all local jurisdictions (Alexandria: 91%; Fairfax/Loudoun: 93%) and even in the federal courts (97%). We are concerned that the low incidence of trials in Arlington is mainly due to overcharging and the fear of harsh consequences if a defendant does not accept a plea bargain.

We are concerned that Arlington convicts defendants of felonies at more than twice the rate of neighboring jurisdictions, despite its very low crime rate. We are worried that this reflects a culture of overcriminalization.

That's only one of the ways Stamos puts her finger on the scales of justice. The letter also notes she's hampering defense efforts by making it as difficult as possible to obtain documents via discovery.

We are concerned that the Arlington County Commonwealth’s Attorney’s discovery policy, which prohibits the use of technology to obtain copies of police reports and other documents, places unique and arbitrary restrictions on the discovery process, making it needlessly difficult for defense attorneys to be prepared for trial. We believe that real open file discovery would make the process more fair for defendants and make the criminal process much more reliable and efficient.

Currently, defense lawyers must head to the court during courtroom hours and manually copy files handed over during discovery. Stamos claims this process protects the privacy of crime victims, but it's difficult to believe details about crime victims are somehow more protected by a process that pretends it's not actually 2019.

Theo Stamos is the only one who believes these are the practices of a criminal justice system reformer. It starts with screwing teens who made mistakes and ends with screwing their lawyers when they try to mount a defense against these trumped-up charges.

Filed Under: arlington county, plea bargain, prosecutorial discretion, sexting, theo stamos, virginia

Twitter And Liz Mair Explain Why Devin Nunes' Lawsuit Doesn't Belong In Virginia

from the because-it-is dept

As you'll recall, Rep. Devin Nunes (R-Snowflake) has sued some online critics and Twitter. While most of the attention has been focused on the satirical "Devin Nunes Cow" Twitter account named in the first lawsuit, he also sued political consultant Liz Mair. The fact that he sued Mair in two separate lawsuits suggested a bit part of his intent with these lawsuits was to stifle her free speech.

Last month, both Mair and Twitter filed to have the lawsuit dismissed (it's not clear if the Cow has filed anything, and because it's in a state court, it's a pain in the ass to get those records). Both filings are worth reading, though both focus on pretty basic procedural arguments for why the case should be tossed. As we noted when the cases were first filed, it seemed fairly obvious that Nunes chose to file them in Virginia state court, rather than California (where he's from and where Twitter is based) to avoid California's strong anti-SLAPP law that would likely leave him on the hook for the defendants' legal fees. Virginia, in contrast, has a terrible anti-SLAPP law, which is missing nearly all of the important procedural elements of a good anti-SLAPP law to protect defendants from being bled dry through legal process.

Mair's filing argues that the case clearly belongs in California, and basically says that the court should toss it and if Nunes really wants to sue, he should be forced to refile in California (which he is unlikely to do):

Under well-settled principles of forum non conveniens, this case belongs in California, not Virginia. The Plaintiff, Devin Nunes, represents a congressional district in California and has no particular connection to Virginia. He lodges most of his claims, and levels most of his factual allegations, against Twitter, a California-based company. The evidence and witnesses necessary to evaluate these allegations are located almost entirely in California, far beyond the scope of this Court's power of compulsory process. Under Virginia choice of law rules, California will govern many or all of Mr. Nunes's claims. Further, the primary injury of which he complains--a more challenging re-election campaign in 2019 for his congressional seat in California--occurred entirely in California and evokes distinctly Californian interests.

While Mair does live in Virginia, the filing notes that it appears she was included in part just to have a thin veneer of an excuse to file the case in Virginia, pointing out that filing in Virginia state court seems to be little more than forum shopping. The filing also directly calls out the anti-SLAPP issue:

We can only assume that Mr. Nunes filed this case in Virginia because of his (mistaken) belief that if he filed in Virginia, its statute limiting strategic lawsuits against public participation (a.k.a. its anti-SLAPP statute)... would apply and the Virginia statute offers less protection to defendants in defamation suits than does the analogous anti-SLAPP statute in California.

Twitter's filing similarly questions the venue choice, making some of the same arguments, but with the added legal heft of Twitter's terms of service requiring any such lawsuit be brought in California.

This lawsuit does not belong in a Virginia court. The sole Plaintiff is Congressman Devin Nunes, a California resident and the representative for California's 22nd Congressional District. He filed this lawsuit over allegedly defamatory Tweets from several Twitter users--including two farcically posing as his "Cow" and his "Mom"--that he says cost him votes in his last election in California and interfered with his official work in Washington, D.C. He asserts claims against Twitter, Inc., a company headquartered in California and incorporated in Delaware, based on actions Twitter allegedly took or failed to take in California or elsewhere but that did not occur in or target Virginia at all. And he has asserted those claims in a Virginia court despite having agreed, as a Twitter user himself, to file any such claims solely in state or federal court in California.

Neither filing at this stage gets to the merits (or total lack thereof) because it's not necessary at this stage of the lawsuit. One hopes that the court makes quick work of this and dismisses the case. Nunes, who has since admitted that he's filed this case to go fishing for journalists' sources, seems unlikely to actually file suit in California and all the case has served to do is elevate the status of the Devin Nunes' Cow account, and demonstrate to the world what incredibly thin skin Devin Nunes has, and his willingness to abuse the legal process to go after people who make fun of him. For someone who once co-sponsored the Discouraging Frivolous Lawsuits Act, it's a pretty bad look.

Filed Under: anti-slapp, defamation, devin nunes, devin nunes cow', jurisdiction, liz mair, slapp, virginia
Companies: twitter

Court Says Virginia PD's Use Of Automatic Plate Readers Violates State's Data Privacy Law

from the why-no-officer-wants-to-be-an-expert-on-relevant-statutes dept

The ACLU has secured a win for privacy in Virginia after taking on the state law enforcement and their many, many automatic license plate readers.

The state's ALPR track record isn't great. Law enforcement and other government agencies love the tech, even if they have a considerable amount of trouble showing that plate readers do anything more useful than catch property tax cheats. Law enforcement agencies have turned their plate readers on political rally attendees, raising First Amendment issues along with the usual privacy concerns.

The ACLU attacked the state's use of plate readers using one of the state's own laws. According to the "Government Data Collection and Dissemination Act," the long-term collection of untargeted plate data was illegal. The state's attorney general even issued an official opinion to this end, pointing out that active collections seeking targeted plates was permissible, but passive collections with no end date and unrelated to ongoing investigations wasn't.

That opinion -- issued in 2013 -- did nothing to alter law enforcement ALPR operations. A lawsuit followed when records requests showed plenty of passive collection was still taking place. The ACLU pointed out (again) these collections violated state law. Fairfax County Circuit Court judge Robert J. Smith agreed.

In his 5-page opinion [PDF] granting the ACLU an injunction blocking the Fairfax County Police Department from engaging in passive, untargeted collections, the County Court agrees with the state Supreme Court's findings: the ALPRs are subject to the state data privacy law and the ALPRs -- despite law enforcement protests to the contrary -- collect protected personal info.

The FCPD argued the passive license plate collection did not automatically connect plates to car owners. The additional steps officers needed to perform somehow exempted this collection from the state's data privacy law. The court disagrees, pointing to the part of the state law the FCPD decided to ignore when crafting its argument.

If the only issue before the Court was whether the link must be automatic to be found invalid, the defendant's position might well carry the day. However, the Data Act defines "information system" as:

The total components and operations of a record-keeping process, including information collected or managed by means of computer networks and the Internet, whether automated or manual, containing personal information and the name, personal number, or other identifying particulars of a data subject. Va. Code §2.2-3801 (emphasis added).

The methodology here requires no less than two computer programs and three passwords. Such requirements, while perhaps cumbersome, do not necessarily preclude an establishment of a sufficient link under the Supreme Court's analysis and the Data Act.

According to the court, these steps link the mass collections to individual people. While the plate readers may only collect plate and location info, the fact that this database is tied to others containing identifying info is enough to make the collection subject to privacy protections guaranteed by the state.

After reviewing the evidence presented at trial, I find that the ALPR system provides a means through which a link to the identity of a vehicle's owner can be readily made. The Police Department's "passive use" of the ALPR system therefore violates the Data Act. Accordingly, the petition for injunction is granted.

This may only prevent the FCPD from passive ALPR collections but the state Supreme Court's ruling should have some effect on law enforcement's use of the tech across the state. No one else has been blocked from letting their ALPRs run day-and-night with no nexus to ongoing investigations, but that day will be coming. It might take a lawsuit to force the issue, but unless law enforcement lobbyists can pressure legislators into rolling back these privacy protections, the courts have made it clear ALPRs collect personal data in an indiscriminate fashion.

Filed Under: alpr, data protection, license plates, privacy, virginia

Virginia Supreme Court Says License Plate Readers Collect Personal Data; Suggests Use Violates State Law

from the but-then-again,-no-one-expects-cops-to-have-much-legal-knowledge... dept

A resident of Virginia, with the ACLU's help, has won at least a partial victory against the mass collection of license plate/location info by automatic license plate readers (ALPRs). The question of whether or not mass collections of this data violated state privacy law has been answered, which may mean significant changes to the way state law enforcement deploys them.

Virginia's history of ALPR use is questionable, to say the least. Some towns in the state obtained ALPRs by claiming a need to swiftly capture the worst of the worst criminals, but decided to put them to use locating people behind on their property taxes. In 2013, state police were discovered to be using ALPRs to troll parking lots at political rallies, giving law enforcement a convenient way to connect drivers to their political leanings. Many of these devices were deployed without public comment or oversight. And law enforcement agencies drew a blank when asked for documentation of the devices' crime-fighting effectiveness.

This passive collection violated the state's "Government Data Collection and Dissemination Act," which forbids collection of personal information without a "clearly established need" to do so. The law prevents codification of abusive practices by requiring agencies looking to harvest personal information to seek approval first, rather than ask for forgiveness later.

This law -- and law enforcement's apparent inability to follow it -- prompted this lawsuit.

In 2013, the (conservative) former Virginia attorney general Ken Cuccinelli issued a strong official advisory opinion stating that under the law, “active” use of an ALPR to identify vehicles that were already involved in wrongdoing was permissible, but that “passive” use of the devices to sweep up raw location data about Virginia residents was not permissible. Nevertheless, in 2014 Harrison Neal, a Virginia resident, found that the Fairfax County Police Department was doing just that, and asked the ACLU of Virginia to file suit challenging the practice on his behalf.

The PD argued nothing "personal" was collected by its ALPRs. It claimed that it represented a vehicle only -- one that could be driven by any number of different drivers. While this is true, most vehicles are driven by one driver a large percentage of the time.

There are 268 million registered vehicles in the United States, but only 221 million licensed drivers, which strongly supports the common sense observation that most vehicles, most of the time, are driven by the same person, or at most a handful of family members.

This rolling database of license plate/location records provides a pretty good depiction of the main driver's life. All plate shots collected by the Fairfax PD are retained for 364 days, allowing officers to track people by proxy for an entire year.

The claim license plates can't be linked to people is disingenuous, at best. Even if the ALPR database is siloed (and it seemingly isn't), police also have access to vehicle registration records which link license plates to vehicle owners. Combine this with other law enforcement databases (biometric, criminal, etc.) and a license plate is as good as an entire person, even if there's a small chance someone else was driving during a few of the passive photoshoots.

The state's supreme court overturns [PDF] the lower court's finding that license plate photos aren't "personal info." The judges here note that would likely be true if all the devices captured were photos of license plates.

The images of the vehicle, its license plate, and the vehicle’s immediate surroundings, along with the GPS location, time, and date when the image was captured “afford a basis for inferring personal characteristics, such as . . . things done by or to” the individual who owns the vehicle, as well as a basis for inferring the presence of the individual who owns the vehicle in a certain location at a certain time. Code § 2.2-3801. The conclusion that the picture and associated data is “personal information” is consistent with the legislature’s intent to remedy the potential mischief posed by “the extensive collection, maintenance, use and dissemination of personal information” and the potential for misuse of such information.

But it's not a complete victory… yet. The court was unable to determine how ALPR software handled license plate data. The case has been remanded to the lower court to perform some fact-finding on law enforcement ALPR data use. If ALPR data is siloed off completely, it may technically be legal under the privacy law. If the police can easily link plate numbers to vehicle owners via registration databases (and from there to other law enforcement collections), the devices violate the law.

If such a means exists, then the Police Department’s “passive use” of ALPRs is not exempt from the operation of the Data Act under the law enforcement exception of Code § 2.2- 3802(7), because the Police Department collected and retained personal information without any suspicion of criminal activity at any level of abstraction, and thus created an information system that does not “deal with investigations and intelligence gathering related to criminal activity.”

This final paragraph also suggests it may not matter if the ALPR data isn't linked to other law enforcement databases. As noted earlier in the decision, a wealth information is collected with every plate photo, which would still be in violation of the law, even if cops have to access a different database to link plates to people. If so, ALPRs may be put on ice until their collection method is modified. At present, non-hit photos are kept along with everything else for 364 days. To comply with the law, the PD is probably going to have to immediately discard non-hit photos, since only those matching law enforcement hotlists will fulfill the requirement that collections like this be used only for "needs clearly established in advance."

Filed Under: 4th amendment, alpr, license plate readers, privacy, virginia

Co-Head Of Virginia's FOIA Council Introduces Bill To Make State's Court System Even More Opaque

from the I'm-from-the-government-and-I'm-here-to-help...-the-government dept

As the result of a public records battle with a local newspaper over court records, two Virginia politicians have decided to address the issue with legislation. One hopes to further open court records to the public.

Del. Mike Mullin, D-Newport News, filed House Bill 4, which would require the case management system maintained by the Office of the Executive Secretary to be open to the public. The bill was filed in November.

The other politician involved has, unsurprisingly, offered up a competing bill that would take public records laws in the opposite direction.

Sen. Richard Stuart, R-Stafford, has a different idea. He filed Senate Bill 727 this week, which would exempt all courts in Virginia from the Freedom of Information Act.

This would add to the large pile of exemptions the state government already benefits from. To the detriment of residents, state agencies and employees have nearly 175 FOIA exemptions available to them. The addition of court docket data would further separate the Virginian government from transparency and accountability.

There's nothing surprising about a politician angling for more opacity. What is surprising is Sen. Stuart's stance, which is diametrically opposed to his position.

Open-government advocates said they were stunned that Stuart would file such a bill without consulting the Virginia Freedom of Information Advisory Council — of which he is vice chair.

“It appears that he’s suggesting that an entire branch of government — one of the three branches of government — be removed from the Freedom of Information Act,” said Betsy Edwards, executive director of the Virginia Press Association.

Of course, it could be very cynically argued that Stuart is doing exactly what the state wants, while holding an insider position on a council meant to provide some form of public advocacy for greater transparency. Stuart feels the court system should be able to craft its own exemptions and pick and choose what it wants to release to the unwashed voting bloc. This would just be more of the same from vice chair of the FOIA Advisory Council.

In 2016, he sponsored a bill that would have exempted disclosure of salaries of many state employees and forbid release of government employee databases with names of the employees if their salaries were also listed. A House subcommittee on FOIA killed it.

Stuart's stated identity theft as the reason for exempting this information from public release -- something that no one has ever alleged has occurred because of official releases of salary information. (Personally-identifiable information is redacted in Virigina's release of salary data.) He also threw a little shade towards the First Amendment, claiming newspapers would be unhappy if the bill passed because they profit off the publication of public records.

Just to be very honest with everybody in here, the newspapers are not going to like it if you vote for this bill. I don't want you to be disillusioned. It bothers me a little bit because what the newspapers do is they get this big database from the state and then they republish this online. And it helps them gain subscribers to their newspaper to search that information. And so, they are very unhappy with me and I suspect if you vote for this bill they will be very unhappy with you. And I want to be very honest about that. But I think we have an obligation to protect our state employees from suffering from identity theft.

Then again, Sen. Stuart isn't so much the vice chair of the FOIA Advisory Council as he is an absentee landlord.

Although Stuart is the vice chairman, he rarely attends meetings. He missed nine of 10 meetings of the council in the past two years.

It appears Sen. Stuart likes the power that comes with political office, but none of the obligations to the public that come with it. Stuart blamed scheduling conflicts for being unable to attend meetings that occur roughly every sixty days. He's adding zero value to the Council and spends more of his time in the legislature actively thwarting it. It may be tough to remove Stuart from office, but there's certainly no reason the FOIA Advisory Council needs to continue posting his name to its masthead and inviting him to meetings he just not going to attend.

Filed Under: foia, mike mullin, richard stuart, transparency, virginia