The Case Of Glassdoor And The Grand Jury Subpoena, And How Courts Are Messing With Online Speech In Secret

from the it-ain't-so-grand dept

In my last post, I discussed why it is so important for platforms to be able to speak about the discovery demands they receive, seeking to unmask their anonymous users. That candor is crucially important in ensuring that unmasking demands can't damage the key constitutional right to speak anonymously, without some sort of check against their abuse.

The earlier post rolled together several different types of discovery instruments (subpoenas, warrants, NSLs, etc.) because to a certain extent it doesn't matter which one is used to unmask an anonymous user. The issue raised by all of them is that if their power to unmask an anonymous user is too unfettered, then it will chill all sorts of legitimate speech. And, as noted in the last post, the ability for a platform receiving an unmasking demand to tell others it has received it is a critical check against unworthy demands seeking to unmask the speakers behind lawful speech.

The details of each type of unmasking instrument do matter, though, because each one has different interests to balance and, accordingly, different rules governing how to balance them. Unfortunately, the rules that have evolved for any particular one are not always adequately protective of the important speech interests any unmasking demand necessarily affects. As is the case for the type of unmasking demand at issue in this post: a federal grand jury subpoena.

Grand jury subpoenas are very powerful discovery instruments, and with good reason: the government needs a powerful weapon to be able to investigate serious crimes. There are also important constitutional reasons for why we equip grand juries with strong investigatory power, because if charges are to be brought against people, it's important for due process reasons that they have been brought by the grand jury, as opposed to a more arbitrary exercise of government power. Grand juries are, however, largely at the disposal of government prosecutors, and thus a grand jury subpoena essentially functions as a government unmasking demand. The ability to compel information via a grand jury subpoena is therefore not a power we can allow to exist unchecked.

Which brings us to the story of the grand jury subpoena served on Glassdoor, which Paul Levy and Ars Technica wrote about earlier this year. It's a story that raises three interrelated issues: (1) a poor balancing of the relevant interests, (2) a poor structural model that prevented a better balancing, and (3) a gag that has made it extraordinarily difficult to create a better rule governing how grand jury subpoenas should be balanced against important online speech rights.

Glassdoor is a platform focused on hosting user-provided information about employers. Much of the speech it hosts is necessarily contributed anonymously so that the speakers can avoid any fallout from their candor. This is the sort of fallout that, if they had to incur it, would discourage them from contributing information others might find valuable. The seriousness of these sorts of consequences is why the district court decision denying Glassdoor's attempts to resist the grand jury subpoena seeking to unmask their users reflects such a poor balancing of the relevant interests. Perhaps if the subpoena had been intended to unmask people the government believed were themselves guilty of the crime being investigated, the balance might have tipped more in favor of enforcing it. But the people who the subpoena was seeking to unmask were simply suspected as possibly knowing something about the crime that others were apparently committing. It is not unreasonable for the government to want to be able to talk to witnesses, but that desire to talk to them is not the only interest present here. These are people who were simply availing themselves of their right to speak anonymously, and who, if this subpoena is enforced, are going to be shocked to suddenly find the government on their doorstep wanting to talk to them.

This sort of unmasking is chilling to them and anyone else who might want to speak anonymously because it means that there's no way they ever will be able to speak should their speech happen to ever somehow relate (however tangentially) to someone else's criminal behavior. It is also inconsistent with the purported goal of fighting crime because it will prevent criminal behavior from coming to light in the first place, for few will want to offer up information if it will only tempt trouble for them at some point in the future.

This mis-balancing of interests is almost a peripheral issue in this case, however. The more significant structural concern is why such a weak balancing test was used. As discussed previously, in order to protect the ability to speak anonymously online, it is important for a platform to be able to resist demands to unmask their users in cases where the reason for the unmasking does not substantially outweigh the need to protect people's right to speak anonymously online. But the district court denied Glassdoor's attempt to resist the subpoena when it chose to apply the test from Branzburg v. Hayes, a Supreme Court case focused on the ability to resist a grand jury subpoena. Branzburg, however, has nothing to do with the Internet or Internet platforms. It is a case from the 1970s that was solely focused on whether the First Amendment gave journalists the right to resist a grand jury subpoena. Ultimately it decided that they generally had no such right, at least so long as the government was not shown to be acting in bad faith, which, while not nothing, is not a standard that is particularly protective of anonymity. It also barely even addressed the interests of the confidential sources themselves, dismissing their interest in maintaining anonymity as a mere "preference," and one the Court presumed was being sought only to shield themselves from prosecution for their own criminal culpability.

The upshot of Branzburg is that the journalist, as an intermediary for a source's information, had no right to resist a grand jury subpoena. Unfortunately, Branzburg simply can't be extended to the online world where, for better or worse, essentially all speech must be intermediated by some sort of platform or service in order to happen. The need to let the platforms resist grand jury subpoenas therefore has less to do with whether an intermediary itself has a right to resist them and everything to do with the the right of their users to speak anonymously, which, far from being a preference, is an affirmative right the Supreme Court, after Branzburg, subsequently recognized.

A better test, and one that respects the need to maintain this critical speech right, is therefore needed, which is why Glassdoor appealed the district court's ruling. Unfortunately, its appeal has raised a third issue: while there is often a lot of secrecy surrounding a grand jury investigation, in part because it makes sense to keep the subject of an investigation in the dark, preserving that level of secrecy does not necessarily require keeping absolutely everything related to the subpoena under seal. Fortunately the district court (and the DOJ, who agreed to this) recognized that some information could safely be released, particularly related to Glassdoor's challenge of the subpoena's enforcement generally, and thanks to that limited unsealing we can tell that the case involved a misapplication of Branzburg to an Internet platform.

Unfortunately the Ninth Circuit didn't agree to this limited disclosure and sealed the entirety of Glassdoor's appeal, even the parts that were already made public. The effects of this sealing included that it became impossible for potential amici to weigh in in support of Glassdoor and to argue for a better rule that would allow platforms to better protect the speech rights of their users. While Glassdoor had been ably litigating the case, the point of amicus briefs is to help the court see the full implications of a particular ruling on interests beyond those immediately before it, which is a hard thing for the party directly litigating to do itself. The reality is that Glassdoor is not the first, and will not be the last, platform to get a grand jury subpoena, but unless the rules governing platforms' ability to resist are stronger than what's afforded by Branzburg, the privacy protection speakers have depended on will continue to evaporate should their speech ever happen to capture the interest of a federal prosecutor with access to grand jury.

For all we know, of course, the Ninth Circuit might have seen its point and quashed the subpoena. Or maybe it upheld it and maybe the FBI has now unpleasantly surprised those Glassdoor users. We may never know, just as we may never know if there are other occasions where courts have used specious reasoning to allow grand jury subpoenas to strip speakers of their anonymity. Even if the Ninth Circuit indeed fixed the problems with this questionable attempt at unmasking, by doing it in secret it's missed an important opportunity to provide guidance to lower courts to help ensure that they don't allow other questionable attempts to keep happening to speakers in the future.

Filed Under: anonymity, gag orders, sealed dockets, subpoenas, warrants
Companies: glassdoor

Some Thoughts On Gag Rules And Government Unmasking Demands

from the dissent-dies-in-the-dark dept

The news about the DOJ trying to subpoena Twitter calls to mind an another egregious example of the government trying to unmask an anonymous speaker earlier this year. Remember when the federal government tried to compel Twitter to divulge the identity of a user who had been critical of the Trump administration? This incident was troubling enough on its face: there’s no place in a free society for a government to come after a critic of it. But largely overlooked in the worthy outrage over the bald-faced attempt to punish a dissenting voice was the government’s simultaneous attempt to prevent Twitter from telling anyone that the government was demanding this information. Because Twitter refused to comply with that demand, the affected user was able to get counsel and the world was able to know how the government was abusing its authority. As the saying goes, sunlight is the best disinfectant, and by shining a light on the government's abusive behavior it was able to be stopped.

That storm may have blown over, but the general issues raised by the incident continue to affect Internet platforms – and by extension their users and their speech. A significant problem we keep having to contend with is not only what happens when the government demands information about users from platforms, but what happens when it then compels the same platforms to keep those demands a secret. These secrecy demands are often called different things and are born from separate statutory mechanisms, but they all boil down to being some form of gag over the platform’s ability to speak, with the same equally troubling implications. We've talked before about how important it is that platforms be able to protect their users' right to speak anonymously. That right is part and parcel of the First Amendment because there are many people who would not be able to speak if they were forced to reveal their identities in order to do so. Public discourse, and the benefit the public gets from it, would then suffer in the absence of their contributions. But it's one thing to say that people have the right to speak anonymously; it's another to make that right meaningful. If civil plaintiffs, or, worse, the government, can too easily force anonymous speakers to be unmasked then the right to speak anonymously will only be illusory. For it to be something speakers can depend on to enable them to speak freely there have to be effective barriers preventing that anonymity from too casually being stripped by unjust demands.

One key way to prevent illegitimate unmasking demands is to fight back against them. But no one can fight back against what they are unaware of. Platforms are thus increasingly pushing back against the gags preventing them from disclosing that they have received discovery demands as a way to protect their communities of users.

While each type of demand varies in its particulars (for instance a civil subpoena is different from a grand jury subpoena, which is different than an NSL, which is different from the 19 USC Section 1509 summons that was used against Twitter in the quest to discover the Trump critic), as well as the rationale for why the demanding party might have sought to preserve the secrecy around the demand with some sort of gag, all of these unmasking demands still ultimately challenge the durability of an online speaker's right to remain anonymous. Which is why rulings that preserve, or, worse, even strengthen, gag rules are so troubling because they make it all the more difficult, if not outright impossible, to protect legitimate speech from illegitimate unmasking demands.

And that matters. Returning to the example about the fishing expedition to unmask a critic, while it's great that in this particular case the government quickly dropped its demand on Twitter, questions remain. Was Twitter the only platform the government went after? Perhaps, but how would we know? How would we know if this was the only speech it had chosen to investigate, or the 1509 summons the only unmasking instrument it had used to try to identify the speaker? If the other platforms it demanded information from were, quite reasonably, cowed by an accompanying demand for secrecy (the sanctions for violating such an order can be serious), we might never know the answers to these questions. The government could be continuing its attacks on its apparently no-longer-anonymous critics unabated, and speakers who depended on anonymity would unknowingly be putting themselves at risk when they continued to speak.

This state of affairs is an affront to the First Amendment. The First Amendment was intended in large part to enable people to speak truth to power, but when we make it too hard for platforms to be partners in protecting that right it entrenches that power. There are a lot of ways that platforms should have the ability to be that partner, but one of them must be the basic ability to tell us when that right is under threat.

Filed Under: anonymity, free speech, gag orders, gag rules, governments, nsls, subpoenas, unmasking, warrants

UK's Terrorism Law Reviewer Says Tech Companies Shouldn't Offer Encryption To Anonymous Users

from the nothing-to-hide,-everything-to-fear dept

Once again, someone's suggesting the best way to combat the spread of terrorist-related communications online is to make the tech companies do it, have them foot the bill, and do it all without being legislated into submission or making impudent comments like "That's not how any of this works."

Traveling beyond the groundwork of "necessary hashtags" and constant threats to bludgeon tech companies into mandatory, worldwide speech policing, the UK's independent reviewer of terrorism laws -- former key terrorism prosecutor Max Hill QC -- suggests the better route lies not through legislation, but through some sort of tech wizardry.

[C]ooperation with tech giants such as Google and Facebook offered the best way forward, including the potential introduction of “verification” checks on social media users.

“A discussion I have had with some of the tech companies is whether it is possible to withhold encryption pending positive identification of the internet user,” said Mr Hill.

“If the technology would permit that sort of perusal, identification and verification, prior to posting that would form a very good solution… and would not involve wholesale infringement on free speech use of the internet.

“I’m talking about a nano-second.”

Yes, Hill is calling for encryption to be withheld from anonymous or pseudonymous users -- often the very users (dissidents, journalists, whistleblowers) for whom the added protection is key to survival. This pitch takes "nothing to hide/nothing to fear" to its illogical extremes, suggesting protected communications be limited to those who have made their personal information available to tech companies -- who then, in turn, can be forced to hand it over to various governments with a minimum of paperwork.

Hill is correct -- beating tech companies over the head with broadly-written legislative sledgehammers is unlikely to end well. But his "fix" isn't any better. In fact, the thing he thinks can be done in a "nano-second" may not even be possible. And that's by his own admission.

Mr Hill conceded that experts were divided as to whether such checks were feasible but that it was a debate “worth having”.

Something everyone can agree on -- "independent" or not -- is that tech companies should pay for whatever measures they're being forced to undertake for the government.

He added: “The vast sums of money that tech companies generate … means that we should all be looking to those companies to recycle some of those profits into the fight to take down extreme material.”

So, let's attempt to add this all up:

Hill thinks "sledgehammer legislation" would backfire. He also thinks tech companies should be able to flip switches somewhere to encrypt/decrypt communications as needed (million-dollar switches perhaps, but "recycle" those "profits!"). He also concedes no one has said these "nano-second" switch flips are actually possible. Finally, he believes tech companies will implement these measures and pay for them without being forced to by "sledgehammer legislation."

Hill has assembled a handful of logical flaws and presented them as a plan -- one whose impossibilities can be surmounted if everyone involved just talks about it for awhile. These are the words of a former prosecutor who has mistaken daydreaming out loud with acting as an independent overseer of terrorism-related legislation.

Filed Under: anonymity, encryption, going dark, identification, max hill, privacy, uk

Should Tumblr Be Forced To Reveal 500 People Who Reblogged A Sex Tape?

from the bad-cases-make-bad-law dept

What were we just saying about how it's important to defend Section 230 of the CDA even when it's hard? Well, here's a hard case in New York City where the situation is very unfortunate. It appears that a woman discovered that an old sex tape of hers had surfaced online from 10 years earlier when she was 17. Someone had posted it to Tumblr, where over 1,000 people apparently viewed it -- and somewhere around 500 "reblogged" it or commented on it in some manner. This is, undoubtedly, traumatic for the woman. She appears to believe that "an angry ex" posted it to Tumblr originally, which would make this a classic "revenge porn" situation.

But... rather than go after that ex, her lawyer is going after everyone who reblogged it on Tumblr and somehow got a judge to agree to force Tumblr to cough up identifying information on all of them. So let's be clear: this is clearly a horrifying story and an awful thing for the woman to live through. And, on top of that, the people who not only viewed, but further shared the video are awful human beings who should feel bad about their choices in life.

But... there are all sorts of legal questions here that should raise concerns. First up: Section 230. That should have kept Tumblr from being liable if it fails to hand over this info, as it's not supposed to be held liable for the actions of its users. And that's even -- as noted by Scott Greenfield -- after Tumblr failed to show up in court and the judge gave the plaintiff a default ruling. Second issue: protecting anonymity online. As we've detailed many times before, and as the Supreme Court has stated, the right to speak anonymously is also protected by the First Amendment. There are standards for revealing identifying information on anonymous speech, but it requires those in court clear a pretty high bar in proving why it's necessary to strip that right of anonymity. It does not appear that any such high bar was met in this case. Third issue: on Tumblr, "reblogging" something is basically a click of a button and is often the functional equivalent of a "retweet" for those more familiar with Twitter. That is, it does not signal endorsement -- but really just a way of marking something that you saw.

So, again, this is one of those cases where it certainly feels very difficult to defend the other side here. I have nothing good to say about the people who watched or reblogged the video. But getting Tumblr to reveal their identities so that she can proceed to sue them is a bad idea fraught with all sorts of problems.

Filed Under: anonymity, liability, manhattan, reblogging, revenge porn, section 230
Companies: tumblr

Cyberbullying Bill Would Grant Power To Strip Online Anonymity Before Legal Proceedings Begin

from the chilling-students'-speech...-for-the-children dept

The Texas legislature's proposed cyberbullying bill is gathering more opposition. As we covered here last month, the "for the children" bill was meeting resistance from groups actually concerned about the welfare of the state's children.

According to the Texas branch of the National Association of Social Workers, the bill would put more students in harm's way by trimming back counseling and other resources in favor of dumping the problem in the lap of law enforcement. Not only that, but the bill would expand the jurisdiction of school disciplinary procedures to cover actions taken by students off-campus.

The bill has additional problems that need to be addressed before it's passed, as the EFF points out. One of the more dangerous aspects of the proposed legislation is its presumptive stripping of anonymity. Rather than let a court decide whether the party bringing charges has earned the right to uncover the identity of an online commenter, the law hands that power to the aggrieved person before any legal proceedings have commenced.

The bill authorizes subpoenas to investigate potential legal claims arising from any undefined “injury” to a minor before a lawsuit is ever filed. This new process would threaten the First Amendment right to communicate anonymously on the Internet. This right is especially important for people who belong to unpopular groups or who express unpopular messages, who might otherwise stay silent rather than risk retaliation.

In the hypothetical above, suppose the second student anonymously blogged about the classroom comments of the first student, and concluded, “only a jerk would say this in class.” The first student might try to use the bill’s pre-suit subpoena process to unmask the anonymous blogger, based on the pretext of a highly dubious defamation claim. The risk of unmasking would silence many anonymous speakers.

Courts have allowed these efforts to proceed, but this has usually happened after the injured party has made its case for unmasking. This is the "for the children" aspect of the proposal getting in its own way. By presuming the normal legalities of pursuing the identity of anonymous speakers don't apply when the victim is a minor, the law's unintended consequences would harm a greater number of minors who would either be unmasked prematurely or discouraged from participating in online speech.

The EFF has sent a letter [PDF] to the state's legislature opposing the bill as written. It points out other flaws in the bill's language that would either chill speech or severely damage the future of minors caught up in its broad language. If the bill passes unaltered, it's highly unlikely it would survive a constitutional challenge. Too much is left to the discretion of administrators and law enforcement officers employed by schools. The bill says vague things about "rights," but gives these entities the power to decide whose rights are more equal than others.

The Texas bill would expand the power of school officials to discipline youths for “cyberbullying.” The bill’s vague and overbroad definition of that term would include a single email from one student to another that “infringes on the rights of the victim at school.” Those “rights” are not defined.

School officials might use this new power to silence unpopular speech by the very students that some legislators may wish to protect. Suppose that in a current events class, one student said they oppose gay marriage or Black Lives Matter protesters. Suppose further that in response, the leader of that school’s Gay-Straight Alliance or NAACP chapter sent the first student a critical email that concluded, “I wish you would keep your opinion to yourself.” School officials might determine that the second student’s email infringed on the first student’s right to speak in class, and thus impose discipline for sending the email.

Those who support this sort of legislation like to believe no one involved in enforcing the law would interpret the language in such a ridiculous fashion. But as we've seen time and time again, far too many school administrators are capable of interpreting policies and laws in the most unreasonable way possible.

Filed Under: anonymity, cyberbullying, first amendment, free speech, offensive, texas

Windows DRM: Now An (Unwitting) Ally In Efforts To Expose Anonymous Tor Users

from the press-'play'-to-decloak dept

In case you were wondering what other misery DRM could contribute to, Hacker House security researchers have an answer for you:

HackerHouse have been investigating social engineering attacks performed with Digital Rights Management (DRM) protected media content. Attackers have been performing these attacks in the wild to spread fake codec installers since Microsoft introduced DRM to it’s proprietary media formats.

Improperly-licensed media files will produce a pop-up, asking the user if they want to visit the originating site to obtain the rights to play the file. This popup also warns users that this is great way to pick up malware if they're not careful. In these cases, computer users will likely be deterred from following through on the risky click.

But that only happens if it's not licensed properly. If it is -- an expensive process that runs about $10,000 -- then no warning appears, leaving users open to attack by malicious fake codec installers. What would be the point of these fake installers? One possible use for the exploitation of Windows DRM is the exposure of Tor users' information.

As these “signed WMV” files do not present any alert to a user before opening them they can be used quite effectively to decloak users of the popular privacy tool TorBrowser with very little warning. For such an attack to work your target candidate must be running TorBrowser on Windows. When opening/downloading files, TorBrowser does warn you that 3rd party files can expose your IP address and should be accessed in tails.

The $10k price tag for proper licensing is a deterrent to small-time malware purveyors. But it would only be a drop in the bucket for a well-funded government agency and/or any NGOs they employ. It's basically the Network Investigative Technique the FBI deployed in the Playpen cases -- only one able to be buried inside media files which could be scattered around like mini-honeypots.

The DRM-based attack certainly wouldn't be limited to law enforcement agencies. It would also be deployed by spy agencies for use against terrorists (who love to share media files) and, unfortunately, by governments every bit as malicious as the software they're deploying. The exploit could just as easily be deployed to target dissidents, journalists, and other "enemies of the state" through booby-trapped, DRM-laden files that strip away anonymity while delivering information these entities might find intriguing/useful.

Underneath it all is Microsoft's apparently misplaced faith in properly-signed media files put together with its development kits. Rather than warn users that the redirect to the codec installer may still be risky despite the proper signature, Windows will automatically open a new browser instance and download the file with no further user interaction.

Here's Hacker House's explanation of the whole process:

Filed Under: anonymity, drm, tor, windows

Confirmed Horrible Person James Woods Continues Being Horrible In 'Winning' Awful Lawsuit To Unmask Deceased Online Critic

from the to-the-bowels-of-hell dept

So... Hollywood actor James Woods continues to make it clear that he's a complete and total asshole. As you may or may not recall, last year, Woods sued an anonymous Twitter user who went by the name Abe List, for mocking Woods on twitter. Specifically, List called Woods "clownboy" and later tweeted: "cocaine addict James Woods still sniffing and spouting." Woods sued Abe List claiming that the "cocaine addict" statement was defamatory, and (the important part) demanding the name and identity of Abe List. The fact that Woods, himself, has a long (long, long, long) history of spouting off similarly incendiary claims to people on Twitter apparently wasn't important. Here is an example of a Woods tweet that seems quite similar to the one he, himself, claimed was defamatory: Ken "Popehat" White agreed to defend Abe List, along with lawyer Lisa Bloom. And while the judge initially (and, in our opinion, correctly) found Woods' lawsuit to be nothing more than a SLAPP suit, the judge eventually changed his mind. The case was moving along... and then something bizarre happened. Abe List (whoever that is) died (unexpectedly, apparently). Woods then took to Twitter to obnoxiously gloat about "winning" the case, leaving out the fact that the case was ending due to the death of the defendant. After people pointed out to Woods how ridiculous it was that he was gloating over a "victory" when someone had died, the ever classy Woods, gloated some more, first saying he hoped that List died "screaming my name. in agony" and then later saying: "Learn this. Libel me, I'll sue you. If you die, I'll follow you to the bowels of Hell. Get it?" Woods later deleted those tweets, but as I said at the time, the whole thing is sickening. Even if Abe List was trolling Woods, happily celebrating someone's death because they once made fun of you on Twitter seems to suggest you deserve to be made fun of on Twitter. Constantly.

To then add insult to death, Woods and his lawyers continued to push forward with the lawsuit, demanding to still uncover the name of Abe List. Woods' lawyers basically tried to argue that because they didn't know Abe List's identity, it was possible that Ken White was lying that List had died. They argued that they needed White to disclose Abe List's real name to prove that List was really dead:

Critically, although White claims that AL is deceased, he has refused to provide any evidence whatsoever substantiating this claim. Moreover, when Woods' counsel reasonably requested that White at least provide the identity of his now-purportedly-deceased client -- a fact which would be necessary in order to confirm AL is actually deceased -- White refused.

Emphasis in the original. And, of course White refused. The whole point of the lawsuit appeared to be to reveal Abe List's real identity, which he has every right to protect under the First Amendment. White was hired to protect that identity, so for Woods' lawyer to pretend that it's so horrific that White would refuse to reveal the name is ridiculous -- but apparently par for the course for Woods and his "to the bowels of hell" ethos. Even more ridiculous, Woods and his lawyers demanded White be sanctioned for refusing to give up the name.

White responded by highlighting how ridiculous all this is, and how it's pretty clear that Woods is just looking to harass and intimidate his critics. In his reply, White even included screenshots of the Tweets above, showing how Woods is gloating about all of this.

When defendant (Abe Doe)... died and his personal representative dismissed his appeal of this Court's denial of his anti-SLAPP motion, Plaintiff James Woods gloated and celebrated his death, expressing his hope that Mr. Doe died "screaming [Woods' name."

Now, Mr. Woods seeks to compel Mr. Doe's attorney, non-party Kenneth P. White ("Mr. White"), to disclose Mr. Doe's identity, and to sanction Mr. White almost $10,000 for asserting the attorney-client privilege in response to his questions.... Mr. Woods asserts that his purpose is legitimate and that he does not seek to harass or abuse Mr. Doe's survivors. But Mr. Woods' own public statements give the lie to that assertion. Mr. Woods wants to do just what he said he wants to do: publicly harass and vilify a dead man and his family.

The Motion is meritless, and is a transparent attempt to abuse the discovery process to exact twisted revenge by harassing Mr. Doe's family. First, contrary to Mr. Woods' arguments, Mr. White expressly premised his refusals to answer questions on one ground -- the attorney-client privilege. That assertion was correct. Because the entire purpose of Mr. White's representation of Mr. Doe was to protect Mr. Doe's identity, and because Mr. White only learned Mr. Doe's identity through confidential communications, Mr. Woods cannot force Mr. White to disclose it.

Unfortunately (and... ridiculously), the court has now ruled that White needs to turn over List's real name (along with the details of where he died and the name of his heirs) within 10 days. The court rejected the request for sanctions against White, and also some other information that White insisted was also protected information (such as whether or not List had other Twitter accounts as well).

This is unfortunate, and a travesty. In response, White provided the following statement:

Sometimes in litigation the bad guys win. This was such a day. I remain very proud to have fought for Abe Doe, and proud to have opposed this vexatious case by James Woods, a petulant bully whose Twitter conduct shows he can dish it out but can’t take it. I’m pleased that the court rejected his demand to compel me to answer several other questions, and that it also rejected his frivolous demand for sanctions.

Woods' lawyer, Michael Weinsten, on the other hand, made the following absolutely ridiculous statement:

This is a significant step forward in our ability to recover the millions in damages caused by John Doe's cowardly Tweet. It also sends a message to others who believe they can hide behind the anonymity of online social media to falsely accuse public figures of heinous behavior without recourse to themselves.

First of all, the idea that List's tweet caused "millions in damages" is so laughable as to make you wonder if Weinsten is also on drugs (note: that's a joke and rhetorical hyperbole...). First off, List's original tweet was a reply to someone else's tweet, meaning that only very, very, very few people saw it, because only those who followed both Abe and Woods would have seen it. Second, it would suggest that such a tweet actually hurt Woods' reputation. And I'd posit that it seems a hell of a lot more likely that Woods' own actions, such as gloating over List's death, did significantly more to harm his own reputation than any silly hyperbolic tweet from an anonymous Twitter user. Finally, List didn't "accuse" Woods of "heinous behavior." He did what people -- including Woods -- regularly do on Twitter, which is make fun of other people. To argue that Woods needs special protection from a Twitter troll makes you wonder what kind of special snowflake Woods thinks he is, that no one should ever be able to mock him on Twitter, while he is apparently free to mock anyone he likes.

And, of course, on Tuesday evening, Woods took to Twitter once again to gloat over the fact that he, that special snowflake whose itty bitty feelings were hurt by someone mocking him on Twitter, is able to stomp on the grave of a dead man. He tweeted a bunch of headlines, declaring "victory" despite the fact his victory spits on the First Amendment, and then made this idiotic analogy: Huh? I recognize that he's trying to argue that you go after "the big dog" so that others won't pester you, or whatever, but he literally went after a no name internet troll -- for doing nearly identical things to things that Woods himself had done. He also tries to defend the "damages" claim by saying that to be a "lead" in a film you have to be insured, and claims of being a drug addict can make you uninsurable. And, sure... but what fucking insurance company uses anonymous trolls tweeting obvious jokes on Twitter to determine if lead actors are drug addicts? The answer? NONE. Woods is full of shit (again: rhetorical hyperbole, James).

This case is an unfortunate travesty of justice. List was, undoubtedly, something of an internet troll himself, regularly pushing many people's buttons (in fact, when List died, White posted about how List regularly attacked White's political beliefs as well). But I don't care how annoyed a troll might make you feel, or how hurt your special feelings are, someone like Woods (who regularly mocks people he calls "snowflakes" online -- a term often used to mock those who can't take any criticism) shouldn't get to stomp all over the grave of someone just because they made him feel bad.

Filed Under: abe list, anonymity, defamation, james woods, ken white, trolls

Actor James Woods Gloats Over Death Of Random Twitter Troll He Sued To Unmask [Updated]

from the stay-classy dept

See the update at the end...

Actor James Woods is an asshole. Let's just put that front and center. As you may recall, a little over a year ago, Woods sued a random Twitter user who went by the pseudonym "Abe List." "List" frequently mocked Woods, including calling him "clown-boy" and a "cocaine addict." Woods then sued for defamation, demanding $10 million, and tried to unmask List. This was ridiculous for any number of reasons, not the least of which is calling much more attention to what a thin-skinned jackass Woods is from anonymous Twitter users. But, more importantly, such hyperbolic statements in an internet forum are not defamation -- rhetorical hyperbole certainly doesn't meet the standard for defamation of a public figure. On top of that, trying to unmask an anonymous speaker is really, really sketchy, and there's a very high bar.

Oh, and did we mention that Woods himself has a long history of similar rhetorical hyperbole on Twitter, including making statements about others smoking crack? California, of course, has a strong anti-SLAPP law, and Abe List, with the help of lawyers Lisa Bloom and Ken "Popehat" White, sought to use it to get the case kicked out. While the judge initially agreed that Woods' lawsuit was a SLAPP suit, he eventually changed his mind, and said that Woods could find out who Abe List really is. List appealed to California's 2nd District Court of Appeal soon after that ruling earlier this year. Since then the case had moved forward with both sides filing opening briefs.

However, apparently "List" just died. There are no details, but List passed away -- and with it, the case is over. The court docket shows that on Thursday, his lawyers filed for the case to be dismissed based on List's death and the court quickly dismissed the case and closed it. No matter what you think of anything, this is not a great situation. Someone died.

And total asshole James Woods decided to not just gloat about it, but to rub everyone's face in it. First, he pretended that the dismissal was because he was going to win the case: That's so obnoxious that you might even overlook the fact that Woods here flat out admits he filed a SLAPP lawsuit.

Bloom, quite reasonably offended, pointed out that her pseudononymous client had died and it's pretty obnoxious to gloat over a default victory like that. Just to put an exclamation point on what a total and complete jackass he is, Woods responded to others pointing out that the client died by gleefully celebrating his death and hoping it was "in agony." He doubled down on that with another person, talking about how he'll follow people "to the bowels of hell." That's sickening. Like, literally. I feel ill. What kind of person would celebrate anyone's death? Even someone they dislike? I have no idea if James Woods is a "cocaine addict" but he sure is an extreme asshole.

Oh, and kinda creepy too. I asked Ken White if he had anything to say about this and he replied:

It was a privilege to represent Abe Doe. He was passionate about many issues and a fierce and incisive debater, not afraid to mix it up with his own attorney. He challenged me just as easily as he challenged others. I was proud to help him fight a contemptible censorious lawsuit, and am very sad about his passing.

Update: And, of course, James Woods has now deleted many of those tweets I have above, but added a new one, attacking the lawyer, Lisa Bloom, for mentioning Abe's death. You know, the one he was gloating over. Another update: According to Eriq Gardner at THResq, despite Abe's death, Woods and his lawyers are going to continue the case to try to unmask who Abe really was.

Filed Under: abe list, anonymity, anti-slapp, asshole, death, defamation, free speech, james woods, james woods is an asshole, slapp

Judge Who Signed 'Criminal Defamation' Warrant For Sheriff's Raid Of Blogger's House Says Warrant Perfectly Fine

from the I-only-sign-the-best-warrants! dept

Nothing's going to stop Louisiana sheriff Jerry Larpenter from defending his good name. If you "print lies" about the sheriff, he'll "come after you." He'll have to use a criminal complaint filed by someone else (insurance agent Tony Alford) and an unconstitutional law to do it... but he's still coming after you.

The "you" in this case is a local police officer who allegedly runs a blog that allegedly made defamatory comments with claims of corruption involving the sheriff, his wife, and the insurance agency she works for.

Defamation isn't normally a criminal offense. Louisiana, for some reason, still has a criminal defamation statute on the books, but it only applies to non-public figures, which the sheriff -- and the parish's insurance agent, Tony Alford -- are not. Alford, who filed the complaint, not only holds two government positions but his agency also secured a no-bid contract to provide insurance services to the parish.

Never mind all that, though. Sheriff Larpenter found an off-duty judge to sign a search warrant and raided Officer Wayne Anderson's home, seeking evidence that he was the author of the posts. Anderson denies having anything to do with the blog posts, not that it matters. Larpenter's deputies have already made off with five electronic devices, including a laptop belonging to the officer's kids.

It would seem that after the initial raid and seizure, cooler judicial heads might prevail. No luck here. Abusing power to oppress speech is something embraced by at least two-thirds of the governmental checks-and-balances system. The judge (Randall Bethancourt) presiding over the case is none other than the judge Larpenter sought to sign his questionable search warrant -- a judge who wasn't on duty for criminal cases when the sheriff pushed his affidavit through.

A Terrebonne Parish judge on Friday stood by his decision to authorize the sheriff's office to seize a Houma police officer's computers earlier this week under the theory they were used to post a blog that may have defamed the sheriff.

I'm sure the judge was in no hurry to invalidate a warrant he signed. Anderson's lawyer argued there was no basis for it because the statute used to obtain it is unconstitutional as applied to the allegedly-defamatory blog posts. Judge Bethancourt, however, feels none of this is really a big deal.

Bethancourt said [the sheriff] had to stay within the "four corners" of the warrant and affidavit and said he couldn't tell if Alford was a public official. Frustrated, Ardoin pointed out that Alford is on the Levee Board, but what's relevant is that the comments in the complaint were about public affairs and should be protected speech.

Apparently, Bethancourt will know whether or not the Constitution applies after the sheriff's office has already examined the devices. And why not, because the statute being used can be interpreted many ways, especially with Bethancourt reading it.

Bethancourt countered that Louisiana’s criminal defamation statute is "pretty broad" and said he would allow the state to "take a look-see at these computers that might have defamatory statements on them."

Gotta love that down-home spin on possible First and Fourth Amendment violations. Law enforcement will just be performing a "look-see" within the "four corners" of a likely-invalid search warrant… all with the blessing of a judge who was apparently in jeans and a T-shirt when approached by someone from the sheriff's office during his day off.

The DA's office isn't much help either, stating that the warrant is "presumed valid" until ruled otherwise and "speaks for itself." The DA did not elaborate on what the warrant said when speaking on its own behalf, but WWLTV notes District Attorney Joe Waitz, Jr. is also mentioned in the blog as being part of a parish-wide web of corruption.

At least one member of the parish government has decided to take the litigation route, as one normally does when confronted with possible defamation.

Alford owns multiple businesses with Parish President Gordon Dove, who, the parish acknowledges, engaged Alford as the parish’s new insurance agent-of-record without any public bid.

Dove told WWL-TV that he is considering suing whoever posted the website, in part because it mentions his daughter, who is married to an assistant district attorney. He also defended the hiring of Alford because his insurance agency is local and would replace an out-of-parish consulting firm.

This thicket of incestuous business/government intermingling, along with people marrying into the family business (and sometimes the "business" is government) isn't exactly going to persuade outsiders that the blog's allegations of government corruption are likely to be false. From the look of things, it will be almost impossible to find anyone without a conflict of interest to investigate, prosecute, or adjudicate this case.

Meanwhile, Officer Anderson has been suspended indefinitely by the Houma Police Department and his electronics remain in control of the clerk of courts while Bethancourt's assertion of warrant validity is taken up the judicial ladder by his lawyers. And Sheriff Larpenter continues to look like someone who's willing to interpret the laws he's paid to enforce as broadly as needed to silence criticism of him and his office.

Filed Under: anonymity, defamation, jerry larpenter free speech, louisiana, randall bethancourt, wayne anderson

Sheriff Uses Unconstitutional Law To Raid Home And Seize Electronics Belonging To Watchdog Blogger

from the bad-laws-used-most-efficiently-by-bad-people dept

A Louisiana sheriff has just inserted himself into a mess of First and Fourth Amendment violations by using his power to go after an anonymous blogger who claimed he was corrupt. Naomi LaChance of The Intercept has more details.

After a watchdog blog repeatedly linked him and other local officials to corruption and fraud, the Sheriff of Terrebone Parish in Louisiana on Tuesday sent six deputies to raid a police officer’s home to seize computers and other electronic devices.

Sheriff Jerry Larpenter’s deputies submitted affidavits alleging criminal defamation against the anonymous author of the ExposeDAT blog, and obtained search warrants to seize evidence in the officer’s house and from Facebook.

The target of this raid -- supposedly the blog's author (although he denies being behind it) -- is another law enforcement officer. Wayne Anderson works for the Houma Police Department. Taken from his home during the raid were five cell phones and two computers -- including his children's laptop.

Sheriff Larpenter is trying to use Louisiana's criminal defamation law to prosecute Anderson. Unfortunately for the overreaching sheriff, that law isn't going to work.

The Louisiana Supreme Court ruled the criminal defamation law unconstitutional "insofar as it attempts 'to punish public expression and publication concerning public officials, public figures, and private individuals who are engaged in public affairs.’”

Larpenter is trying to get around this by claiming the "investigation" was prompted by a citizen's complaint -- that of Tony Alford, an insurance agent named in the blog's posts. The blog's author alleges impropriety related to Alford's no-bid contract to provide insurance coverage for the parish via the agency he works for, Alford, Staples, Lapeyre & Robichaux. The corruption hook here is that Sheriff Larpenter's wife also works for the same insurance agency.

So, it's not really about Tony Alford. It's about Larpenter and his wife. The blog has also made allegations about improper relationships between the department and the town's most powerful government officials, including District Attorney Joe Waitz, Jr. Unsurprisingly, this is the same DA Larpenter wants to prosecute the case.

When Larpenter was asked whether there is a conflict in him investigating an alleged crime involving himself, he replied, "If you're gonna lie about me and make it under a fictitious name, I'm gonna come after you."

He went on to say that once he finished investigating the blog, he would turn the case over to District Attorney Waitz to determine if Waitz wanted to prosecute it or “hand it off.”

Waitz, to his credit, has recognized the conflict of interest and has chosen to pass it on to another office for possible prosecution. But the charge is unlikely to stick, even with Sheriff Larpenter's maneuvering. Larpenter's comments make it clear this attempted prosecution is personal ("lie about me") and is willing to use an unconstitutional statute to justify a search/seizure of personal electronics. But even his invocation of a supposed "private" individual (the insurance agent) to obtain search warrants isn't going to be enough to salvage this blatant attempt to shut down a critic. As the parish's main insurance provider, Alford is very definitely a "private individual engaged in public affairs." Beyond that, he's a public figure in his own right.

In addition to holding public contracts, Tony Alford is also the acting President of the Terrebonne Parish Levee and Conservation District Board of Commissioners, a public position that requires him to file annual personal financial disclosures with the Louisiana Board of Ethics.

Even the process used to obtain the search warrant to seize Anderson's devices was a bit shady.

The one they used to search Anderson’s home was signed Tuesday by Judge Randall Bethancourt, who was not serving as the on-duty judge for criminal cases that day.

This suggests a bit of magistrate shopping by the Sheriff's Office. Now that the warrant has been executed and devices seized, a motion to quash is in place. But that does little for Officer Wayne Anderson. Not only has he been suspended (with pay) by the Houma Police Department while this farce plays out, but the court is holding onto his computers and phones until a hearing on the motion can take place.

The First Amendment implications of Sheriff Larpenter's raid are clear. That the search warrant -- in pursuit of bogus criminal defamation charges -- has already been carried out means Sheriff Larpenter will be facing Fourth Amendment violations claims as well in the inevitable civil rights lawsuit that will follow this debacle. Sheriff Larpenter should have had no problem fighting speech he didn't like with speech of his own -- especially considering his position as a public figure who holds a powerful office. Instead, he has chosen to abuse his position and power to silence a critic, something that's not exactly helping him look any less corrupt.

Filed Under: 1st amendment, 4th amendment, anonymity, corruption, critics, free speech, jerry larpenter, louisiana, searches, terrebone parish, warrants, wayne anderson