Reporter Sues DOJ To See If It Is Trying To Help Devin Nunes Unmask @DevinCow Twitter Account

from the is-the-fbi-investigating-a-satirical-cow? dept

As I'm pretty sure most of you know, Rep. Devin Nunes has been filing a ton of blatant SLAPP lawsuits trying to silence criticism and mockery of him, as well as critical reporting. Kind of ironic for a guy who co-sponsored a bill to discourage frivolous lawsuits and who has regularly presented himself as a free speech supporter. What kicked off those lawsuits, somewhat incredibly, was a satirical Twitter account, @DevinCow (mocking Devin Nunes for repeatedly holding himself out as a "dairy farmer" from Tulare California when it turns out his family farm moved to Iowa years ago).

You may also know that at the time Nunes sued the satirical cow for making fun of him online, the @DevinCow account had a grand total of 1,204 followers. Within a couple days, @DevinCow had 400k followers and had surpassed Nunes' himself. Today the Cow has 772k followers and is one of the most interesting Twitter accounts online, with a huge pasture of followers. Pretty incredible.

What a lot of people don't realize is that the case against the cow is still going on, and Nunes and his lawyer, Steven Biss, have constantly gone to fairly extreme lengths just try to figure out who is behind the Cow account. The craziest of all was that Biss used a totally unrelated case, that did not involve Nunes, and then abused his subpoena powers to ask Twitter to reveal who was behind @DevinCow, despite the Cow being totally unrelated to the case. Biss and Nunes made up some nonsense about how the cow was connected, but it was clearly ridiculous, and a judge rejected it.

Of course, that raised lots of concerns about whether or not Nunes might abuse other methods to try to uncover the cow. Freelance journalist Shawn Musgrave filed a FOIA request with the Justice Department and the FBI to see if Nunes might have sought to use either organization to try to uncover the Cow's identity. After all, Nunes was (incredibly) the chair of the House Intelligence Committee and would have greater access to the FBI and its surveillance tools than just about any other Congressional Representative. Musgrave made it abundantly clear in his FOIA that he was not seeking to identify the Cow and did not want any information that might reveal the Cow's identity. He just wanted to know if the DOJ or the FBI had sought to uncover the Cow's identity.

However, the DOJ and FBI have failed to comply, so now Musgrave is suing the DOJ to try to get them to actually properly respond to the FOIA request.

As a result of the repeated efforts by Cong. Nunes and his legal team to unmask @DevinCow—of which the above instances are merely examples—Musgrave filed two FOIA requests—with the permission of @DevinCow’s owner—to ascertain the degree to which FBI and DOJ—with or without Cong. Nunes’s involvement—have attempted to identify the anonymous owner of the @DevinCow Twitter account.

The lawsuit explains what the FOIA request sought:

On 9 November 2020, Musgrave submitted to FBI a request for five categories of records: (1) all main file records about the @DevinCow Twitter account; (2) all cross-references in the Central Records System about the @DevinCow Twitter account; (3) all internal emails or other correspondence records created or maintained by the Office of Congressional Affairs mentioning the @DevinCow Twitter account; (4) all emails in the FBI email system(s) or personal email folders on personal computers used by the Washington Field Office and San Francisco Field Office mentioning the @DevinCow Twitter account; and (5) all emails in the FBI email system(s) or personal email folders on personal computers used by the Criminal, Cyber, Response, and Services Branch mentioning the @DevinCow Twitter account.

Musgrave added, “Please note that we do not wish to know the identity of the owner of the @DevinCow account, so the FBI should automatically redact any personally identifying information about that individual while releasing the contextual information which would show that PII was redacted. We are only interested in records discussing the account and/or the possible identification of its owner, not in the identity itself.”

Just a week later (which is insanely fast for FBI FOIA requests), the FBI was giving a Glomar response that it can "neither confirm nor deny" the existence of such records, and also claiming it was doing so to protect the privacy of third party individuals. But, of course, that's nonsense, since the request made it abundantly clear that the FBI should redact any such information. Musgrave appealed:

“It is nonsensical to issue a (b)(6) Glomar response to a request for records about an anonymous Twitter account, especially when the request has formally indicated that we have no interest in learning the identity of the user.”

On February 1st, the FBI rejected the appeal and stuck with its Glomar response.

So now, Musgrave has sued (with some very good FOIA lawyers) to try to force the FBI/DOJ to actually respond to the FOIA request for real. Should be an interesting case to follow.

Filed Under: devin nunes, devincow, doj, fbi, foia, free speech, satire, shawn musgrave, transparency

Devin Nunes' Lawyer Tells Judge To Ignore Section 230, Because Twitter Is Anti-Devin Nunes

from the this-is-not-a-winning-strategy dept

Twitter and Steven Biss (Devin Nunes' rather busy, but still terrible, lawyer) were in court on Friday to continue Nunes' frivolous SLAPP suit against a satirical internet cow who makes fun of Nunes. The current issue remains Twitter's unwillingness to reveal who is behind the @DevinCow account. Twitter, correctly, continues to point out that it doesn't need to give up the account info, that it's protected from doing so under Section 230, that the Cow has engaged in 1st Amendment protected speech, and more. And Biss's response appears to be... "but Twitter's mean to us, so it's not fair, it's not, it's not, it's not."

Needless to say, this is not a very good argument.

Nunes’ attorney Steven Biss said that Twitter should not qualify for immunity under the law, known as Section 230, contending it treats Nunes unfairly.

“They’re doing more than allowing Liz Mair, the cow and the mom to post a tweet,” Biss said. “They’re censoring, they’re promoting an anti-Nunes agenda, they’re banning conservative accounts and they’re knowingly encouraging it.”

Again, there's no evidence that Twitter is "banning conservative accounts" or "knowingly encouraging" anything involving an "anti-Nunes agenda," but even if they were, that's explicitly allowed (even encouraged) under Section 230, which flat out says that sites cannot be held liable for the moderation of constitutionally protected speech. At least the judge seems to recognize how faulty Biss' argument is:

“I don’t know of any requirement in the law that says these sites have to be neutral,” Marshall said. “Just because you don’t like it and asked to have them take it down, doesn’t mean they’re liable if they don’t take it down.”

Patrick Carome, an attorney for Twitter, argued that Biss wanted Marshall to carve out an exception for Twitter in the law, which is up to Congress, not the courts.

“Mr. Biss is asking the court to enact a new law,” Carome said. “And if he wants a new law, well, Mr. Nunes is a congressman.”

As an aside, Twitter's lawyer, Patrick Carome is not just "an attorney for Twitter," he was the lawyer who won the first big case about Section 230 that made it clear that it protected websites from liability for their moderation decisions. He understands the law inside and out. Biss... not so much.

According to Courthouse News, the judge even pointed out that Trump's silly executive order shows pretty clearly that Twitter's interpretation of 230 is correct:

“Doesn’t the existence of the executive order, which isn’t law, suggest the law can do what Twitter says it can?” the judge opined.

Biss also claimed that he was at a "dead end" in trying to determine the identity of who is behind the Cow account, which is kind of funny given the revelations that Biss tried to use subpoenas in wholly unrelated cases to try to unmask the account on the sly. Also, as Twitter pointed out, Nunes/Biss had not actually explored all legal avenues:

Carome listed the steps the congressman could take to get the identities revealed. They include filing subpoenas in Virginia and California and going through numerous steps to overcome each state’s unmasking laws.

“I don’t know why Nunes has been sitting on his hands,” Twitter’s lawyer said, pointing to the congressman’s original requests for the identities when the complaint was first filed over a year ago. “He’s wasted a lot of time.”

Of course, the reason that Biss hasn't done that is because he probably recognizes that he'll never overcome the bar to unmasking who is behind the Cow, because everything the Cow has said is protected speech, and the right to speak anonymously remains protected by the 1st Amendment as well.

That said, the judge (who had refused to dismiss the case earlier when he had the chance) pushed back on Twitter somewhat as well. Again, from the Courthouse News report:

But much like the first hearing in the case, Judge Marshall expressed some doubts about Twitter’s arguments as well. He pointed to a procedural issue involving the company’s failure to respond to numerous offenses Nunes alleges the company committed, ranging from shadow banning conservatives to acts of illegal defamation.

But Carome argued that procedurally, Twitter didn’t have to answer questions at this point in the case, while Marshall said state law might suggest otherwise.

The judge also expressed discontent at Twitter’s efforts to dismiss the case so early.

“The Supreme Court of Virginia doesn’t want us to short-circuit cases. I’m reminded by lawyers of it frequently,” he said to some chuckles in the court.

But that's all procedural nonsense. The key point is this: Devin Nunes is filing a vexatious, frivolous suit (one of many) against some online critics who were making fun of him (some of them anonymously). He has no legitimate claim, and as such no legitimate reason to unmask the people behind the satirical accounts.

Filed Under: 1st amendment, anonymity, cda 230, devin nunes, devin nunes' cow, devincow, pat carome, section 230, steven biss, unmasking
Companies: twitter

Public Citizen Weighs In On Why Court Should Protect @DevinCow's Information Under The 1st Amendment

from the satirical-cows-get-free-speech-protection-too dept

As lawyer Steven Biss continues to use one lawsuit to seek to identify the person or people behind a satirical internet cow that he's trying to unmask in another case, Public Citizen's Paul Levy has now filed an amicus brief arguing that identifying who is behind the @DevinCow account (along with two other pseudonymous accounts) would violate the 1st Amendment. While the brief makes a nod towards the point that the @DevinCow account seems entirely unrelated to the case at hand -- between PR guy Trevor FitzGibbon and lawyer Jesselyn Radack -- its arguments focus on the fact that, even if @DevinCow had communicated with Radack, the subpoena that Biss sent to Twitter on behalf of FitzGibbon would violate 1st Amendment protections for anonymity.

Full First Amendment protection applies to communications on the Internet, and longstanding precedent recognizes that speakers have a First Amendment right to communicate anonymously, so long as they do not violate the law in doing so. Thus, when discovery seeks to identify an anonymous speaker, courts must balance the right to obtain redress from alleged perpetrators of civil wrongs against the right to anonymity of those who have done no wrong – and when the discovery targets are third-party witnesses, they are, by definition, speakers who have done no wrong. In cases such as this one, these rights come into conflict when a plaintiff seeks an order compelling disclosure of a speaker’s identity, which, if successful, would irreparably destroy the speaker’s First Amendment right to remain anonymous.

In such cases, identifying an unknown speaker is not merely the first step toward establishing a defendant’s liability for damages. Identifying the speaker gives the plaintiff immediate relief as well as a powerful new weapon, because it enables him to employ extra-judicial self-help measures to counteract both the speech and the speaker. It also creates a substantial risk of harm to the speaker, who forever loses the right to remain anonymous, not only on the speech at issue, but with respect to all speech posted with the same pseudonym. Moreover, the unmasked speaker is exposed to efforts to punish or deter his speech. For example, an employer might discharge a whistleblower, or a public official might use influence to retaliate against the speaker. Indeed, given the tenor of many online conversations, public exposure might lead a given individual to become the target of threats, doxxing and the like. Similar cases across the country, and advice openly given by lawyers to potential clients, demonstrate that access to identifying information to enable extra-judicial action may, in many cases, be the only reason plaintiffs bring many such lawsuits at all.

As Levy lays out in the brief, under no existing legal standard, should the court have Twitter identify @DevinCow and the other account holders.

Fitzgibbon’s subpoena cannot meet this standard. First, the aspect of the subpoena that seeks identifying information for @DevinCow strongly suggests bad faith. @DevinCow is a Twitter account holder who is a defendant in a different lawsuit, now pending in state court, in which a different plaintiff, also represented by Stephen Biss, counsel for plaintiff Fitzgibbon in this case, has been frustrated in his efforts to use Virginia state subpoenas to compel the identification of that defendant. The subpoenas have not succeeded, in part because Mr. Biss has not complied with Virginia’s statutory procedure for such subpoenas—which do not apply in federal court—but also in part because he has not met the First Amendment standard for identifying anonymous speakers who have been sued for their speech. The justifications set forth in Fitzgibbon’s opposition to the motion to quash do not come close to showing any basis for believing that @DevinCow has had any involvement in making any false statements about Fitzgibbon or of that she has any evidence bearing on the claims by or against Fitzgibbon; the use of the subpoena in this case to identify @DevinCow is a transparent ruse. The significant indications of bad faith infect the validity of the entire subpoena, not just the aspect seeking to identify @DevinCow.

Second, the effort to discover the identities of @DevinCow, @jimmysllama and @Kaidinn, and to obtain location and other potential identifying information about the owners of twenty-two additional Twitter accounts, is not pursued in aid of Fitzgibbon’s core claims, for defamation and breach of contract. Discovery is sought in aid of Fitzgibbon’s claim that Radack is liable for having conspired to defame him with various third parties, who are not named as defendants in this litigation. But under Virginia law, a conspiracy to commit a tort is actionable only if the plaintiff can also succeed on the underlying tort claim, here defamation.... Similarly, under Hustler Magazine v. Falwell, 485 U.S. 46 (1988), and Food Lion v. Capital Cities/ABC, 194 F.3d 505, 522 (4th Cir. 1999), a tort claim that seeks damages for injury to reputation can succeed only if the claim meets First Amendment standards for a defamation claim. In effect, then, Fitzgibbon’s civil conspiracy claim against Radack is one that piggybacks on his defamation claim and may, assuming that Radack has sufficient assets, provide an additional claim for damages. But discovery in aid of additional damages does not pertain to a core claim and hence does not provide a basis for overriding the right to speak anonymously....

Third, Fitzgibbon has not shown that he has exhausted alternate sources of information that would not require imposing on the First Amendment rights of third parties. Other courts have said that “‘an alternative requiring the taking of as many as 60 depositions might be a reasonable prerequisite to compelled disclosure.’” In re Petroleum Products Antitrust Litig., 680 F.2d 5, 9 (2d Cir. 1982), quoting Zerilli v. Smith, 656 F.2d 705, 714 (D.C. Cir.1981). So far as the record reflects, his only discovery efforts to date seeking to obtain Radack’s alleged conspiratorial communications consists of sending her written discovery requests to which, his brief alleges, defendant Radack has refused to respond. His brief further asserts, at 44, 53, 57, without providing admissible evidence to support his contentions, that Radack has been guilty of spoliation and hence cannot be trusted to produce evidence voluntarily. He does not explain why he has not moved to compel discovery from Radack, including, if necessary, pursuing forensic examination of her electronic equipment. Moreover, if Radack has been guilty of spoliation as Fitzgibbon alleges, the sanctions for such spoliation could easily be a sufficient route to establish her liability, making it wholly unnecessary to impose on the free speech rights of innocent third parties. The Eastern District docket sheet does not reflect the filing of any motion to compel discovery or to seek sanctions for alleged spoliation. https://www.courtlistener.com/docket/16048358/fitzgibbon-v-radack/. The very fact that Fitzgibbon has not pursued such alternate means to establish his claims against Radack gives ground to infer that other motives might be afoot.

One hopes that the court already knows and understands this -- but it's good to see Public Citizen and Levy weighing in so clearly. Either way, as Levy reminds us, it's yet another example of how Virginia is a target for libel tourism these days.

Filed Under: 1st amendment, anonymity, devin nunes, devincow, jesselyn radack, steven biss, subpoena, trevor fitzgibbon
Companies: twitter

Twitter Moves To Quash Fishing Expedition Subpoena For Info On Devin Nunes Cow By Devin Nunes' Lawyer In Unrelated Case

from the good-for-them dept

Last week, we wrote about the details of how it appeared that Devin Nunes' lawyer, Steven Biss, appeared to be using his subpoena power to try to unearth the identity of the parody account for "Devin Nunes Cow" in a totally unrelated case. I'm kind of amazed that no one else has really picked up on this story, because it's crazy. Biss has been representing Nunes in his various (highly questionable) defamation lawsuits, including the very first, which was focused on trying to expose a couple parody accounts that mocked Nunes, a Congressional Representative who really needs to grow some thicker skin. We've highlighted how much of Nunes' activity in that case in particular appears to be a fishing expedition to find out the identities of some of his critics.

What was so crazy about the story last week was that this new subpoena, sent to Twitter and seeking out information (including direct messages) from a variety of Twitter accounts, including @DevinCow, was in a totally unrelated case (the details of which are complex, and we tried to cover in that original post). As we highlighted, there were a bunch of questions raised by this -- first, sending a subpoena to Twitter to access someone's DMs is ridiculous. It would violated the Stored Communications Act. Twitter is barred from handing out such communications via civil subpoena. The correct process for Biss, if those communications are so vital to his case, would be to subpoena the users directly. But, of course, that would tip them off. The next big problem was that it appeared that at least two of the names on the list of Twitter accounts that were subpoenaed (and possibly more) had no connection whatsoever with the case at hand, involving a dispute between a well known lawyer and a well known PR executive. But they were relevant to the Devin Nunes suit.

On Tuesday, Twitter stepped in a filed a scathing motion to quash the subpoena, noting "a litany of substantive defects."

The Subpoena suffers from a litany of substantive defects and must be quashed. First, the Subpoena seeks identifying information of pseudonymous Twitter accounts without satisfying the established First Amendment requirements for unmasking anonymous online speakers... Second, it violates the federal Stored Communications Act ("SCA")... by commanding Twitter to disclose the contents of communications.... Third, it imposes an undue burden on Twitter by commanding it to produce document that could be obtained from a party to the lawsuit.... Fourth, and finally, the Subpoena imposes an undue burden on Twitter by demanding information that is irrelevant to the underlying action.

That last one is the understated way of pointing out that Biss is trying to subpoena people totally unrelated to this case. The motion makes the issue explicitly clear:

But the Subpoena is not merely defective and unlawful. One of its demands--for identifying information about the Twitter account @DevinCow--also appears to have been made for an improper purpose: to end-run around discovery disputes in an unrelated lawsuit. Nothing about the Fitzgibbon Litigation suggests that the @DevinCow account is in any way relevant to its claims or counterclaims--indeed, no reference to the account appears anywhere in any pleading. The anonymous speaker @DevinCow, however, has been named as Twitter's co-defendant in another, unrelated state-court action in which Fitzgibbon's counsel, Mr. Steven S. Biss, represents a different plaintiff.... Mr Biss has repeatedly sought in that other action, without success, to force Twitter and others to disclose information that might bear on the identity of @DevinCow, i.e. the very same information he is now demanding from Twitter through the Subpoena at issue here. The Subpoena's demand for @DevinCow's account-opening information thus appears to be an attempt to bypass the discovery process in Nunes. Such gamesmanship heightens the need for this Court to swiftly quash the Subpoena.

The motion goes on to detail the many times and many ways in which Biss has tried to unmask @DevinCow throughout the lawsuit.

It also notes that Twitter's lawyer directly raised these issues with Biss and "Mr. Biss refused to withdraw the Subpoena" and that he pointed them to two tweets made by the defendant in this case, lawyer Jesselyn Radack, replying to @DevinCow. However, as Twitter notes, neither of those had anything to do with the plaintiff in this case, Fitzgibbon. And, considering the main points of this case are (fairly questionable) claims that Radack was conspiring with others on Twitter to defame Fitzgibbon, it seems like any such tweets would need to relate to Fitzgibbon in some manner. Later, Biss agreed to narrow the subpoena to get around the Stored Communications Act issue, saying Twitter could black out the details of communications, but he still wanted to see the metadata. And then there's this:

Counsel for Fitzgibbon asserted both that those 17 accounts, including @DevinCow, are "obviously" relevant to the Fitzgibbon Litigation, and that he has evidence indicating that @DevinCow has privately communicated with Radack via the Twitter platform... But he flatly refused Twitter's requests that he substantiate those assertions.

It then goes through all the many other reasons for the subpoena to be quashed, and then says that the court should award Twitter fees and costs.

The awarding of fees and costs is particularly appropriate where, as here, "a party issues a subpoena in bad faith, [or] for an improper purpose."

It will be interesting to watch what comes next. Also, if the court does award fees, I wonder who will be paying them? There have already been questions about who's been funding Nunes' lawsuits. Would Fitzgibbon have to pay the fees because his lawyer tried to use his case to fish for info in another case? Is that the kind of representation that Fitzgibbon wants?

Filed Under: anonymity, devin nunes, devincow, fishing expedition, jesselyn radack, steven biss, subpoenas, trevor fitzgibbon
Companies: twitter

Is Devin Nunes' Lawyer Using Questionable Subpoenas In An Unrelated Case To Seek Info On Satirical @DevinCow Account?

from the what-a-bizarre-case dept

Buckle up, because here's a wild one. Over the weekend, a ton of people sent me a tweet from "The Sparrow Project" that many people took to mean that Rep. Devin Nunes -- the Congressional Representative who spent much of 2019 filing highly questionable SLAPP suits against news organizations, journalists, political operatives, critics, and, most famously, a satirical internet cow -- has issued a highly questionable subpoena for The Sparrow Project's private Twitter DMs.

However, while that tweet may have implied it was Nunes, it is not. The case merely involves Nunes' lawyer, Steven Biss, who is the lawyer in a separate case. But there are many oddities involved in this subpoena -- and Nunes' cases may be tangentially connected in a manner that seems to raise more questions about Biss' legal strategy. Before we go any further, however, I will say that the case that the subpoena comes from is a messy one. I am not going to go into all of the background here -- hopefully just enough to understand the nature of this subpoena -- but I will note that there are many people on both sides of this case who seem to feel fairly confident about what happened between two people, when the truth is only those two people know what really happened, so I will not take any position on the specific claims underlying the two cases at issue. There are also a bunch of people floating trollish conspiracy theories -- again, on both sides -- and if you want to waste a lot of time around a lot of nonsense, there are some rabbit holes to go down, most of which will frustrate and confuse you. I don't recommend that.

The case stems from accusations that lawyer Jesselyn Radack, who has represented Ed Snowden and other whistleblowers, made regarding Trevor FitzGibbon, who ran a PR firm that represented Wikileaks, Chelsea Manning, The Intercept and some other well known organizations. In 2015, FitzGibbon's PR firm shut down following allegations of sexual harassment and assault. In 2018, after it was reported that no criminal charges would be brought against FitzGibbon, he (with Biss as his attorney) sued Radack, claiming she defamed him in saying that he sexually assaulted her. You can read the (redacted) amended complaint and follow the rest of the docket, but it gets pretty salacious and a lot of accusations are thrown back and forth and you don't really need to know those details to understand the issue we're discussing here, so I won't point you directly to them.

What matters in this instance is that after a fairly contentious process, the two parties settled in May of last year. It is also at least worth noting that the court held Radack in contempt, which highlights at least some of the contentiousness of the proceedings. Separately, because the original complaint (which was later sealed in part because of this) in the original case apparently included somewhat revealing photos that FitzGibbon claimed Radack had sent him (part of his effort to show whatever relationship they had was consensual), Radack separately sued FitzGibbon, claiming that his filing violated Virginia's revenge porn law.

A month after FitzGibbon's first case against Radack was settled, he sued Radack again, claiming that (among other things) she had breached the settlement agreement from the original case, and tacking on new defamation claims. The original settlement agreement appears to have included clauses saying that they wouldn't talk about each other on social media, and also that they wouldn't "direct, request, encourage, entice, procure or otherwise cause any third party..." to post on social media about the other.

In the new case, FitzGibbon (again using Biss as his lawyer), alleges that Radack did use social media to talk about FitzGibbon, and suggests that since many others, including followers of Radack, have tweeted about him, it violates the clause not to encourage (etc.) others to do so. This starts with Radack's very first tweet after settling the case, in which she (as per the settlement) posted a short tweet noting that the original case had been settled and she wanted to "retract and withdraw every allegation and statement I have ever made against Trevor Fitzgibbon." Some supporters of Radack responded to that tweet with statements against FitzGibbon, which the lawsuit argues breaches the settlement agreement.

It also highlights a bunch of other tweets by Radack, some of which it claims are defamatory, even though they seem quite general, don't mention FitzGibbon, and could easily be about someone else entirely. Just a few examples of tweets called out in this follow up lawsuit that seem like a huge stretch:

It seems pretty difficult to argue that those either breach the agreement or that they are defamatory towards FitzGibbon. The complaint does go on to assert "common law conspiracy" claims because other accounts started tweeting things about FitzGibbon that might reach the level of defamation. I won't repost them here, but those tweets do make direct claims about FitzGibbon, and if they are false, and were posted with knowledge of their falsity, might possibly qualify as defamation. Of course, the knowledge of their falsity or making the statements with "reckless disregard for the truth" (the standard for actual malice necessary to make a defamation claim) seem like a pretty high bar that would be difficult to reach.

Radack has asked the judge to dismiss much of the case on jurisdictional grounds and for failure to state a claim (basically saying that even if everything claimed is true, it still doesn't violate the law). Frankly, I find that her argument for the 12(b)(6) failure to state a claim is pretty convincing, and FitzGibbon/Biss' opposition motion to be pretty weak. It spends a lot of time arguing why there are some cases where opinion can be defamatory, and then highlights how some of the tweets from other people appear to be defamatory, but makes little effort to show how that makes her statements defamatory.

And that finally brings us around to the tweet at the top that is the reason for this post. If Biss could show that Radack did, in fact, communicate with others to make public statements about FitzGibbon, then at the very least you could argue that it was a breach of the settlement agreement. And, thus, one could make an argument that there are some reasonable situations in which such communications could be subpoenaed as part of the discovery process, to determine whether or not Radack had, in fact, breached the contract, and somehow encouraged others to say things publicly about FitzGibbon.

But, that possibility of situations existing where it might make sense to seek discovery of such communications is about as far as I'll go in giving Biss any credit here. Because almost every other part of what's been made public so far is problematic. First of all, the subpoena is to Twitter, and not to the individuals involved in any communications:

That's a problem on multiple levels, including that the Stored Communications Act literally forbids this kind of subpoena. While most people know of the SCA as it concerns government requests for communications, it also bars internet service providers from revealing content information to private actors in civil suits. So, even if there were legit reasons to seek these communications, sending a subpoena to Twitter is not how this should be done.

But the more concerning part is that the subpoena targets the communications of 21 different Twitter accounts, and many of them claim to have no connection at all to Radack, and at least two of the accounts in the subpoena that have no known connection to Radack are connected to Nunes' lawsuits. Specifically, the subpoena seeks communications from the now famous @DevinCow account, as well as political strategist @AdamParkhomenko, who was subpoenaed in one of the Nunes' cases, and who made some news by filing quite a motion to quash in that lawsuit.

So.... what the hell are they doing in this subpoena on a totally unrelated lawsuit? As far as I can tell in going through the dockets of both cases: absolutely nothing. Perhaps there's some reason for it somewhere, but in looking through everything I can find no clear connection. Radack and Parkhomenko, for example, seemed to only start communicating after she alerted Parkhomenko to the existence of what appears to be this same subpoena on Christmas. Radack's tweet at the time went mostly unnoticed, though Adam did respond over a week later to her. As for the DevinCow account, there appears to be absolutely no obvious or public connection between Radack and DevinCow, and no reason to include that account here. Indeed, in responding to a question from myself, DevinCow told me that it has "no connection" to Radack and is "not even sure what is behind all of this craziness."

Based on that, it's extremely unclear why those two accounts (and possibly others) are included in the subpoena. And, given that the identity of DevinCow, in particular, is so important in Nunes' case, you can see how the inclusion of that account and some others may raise some eyebrows about just what is going on here. So, while many people may have misinterpreted the original Sparrow Project tweet to suggest it involved a Nunes case, the subpoena in question is technically from a totally different case, not officially involving Nunes. It's just the same lawyer for both cases. But, it should raise some serious questions as to why the (mis-targeted) subpoena in the Radack case is being used to target communications that appear unrelated to the Radack case, but potentially of significant interest to a totally different case involving the same lawyer.

Filed Under: adam parkhomenko, breach of contract, communications, defamation, devin nunes, devincow, direct messages, free speech, jesselyn radack, sca, steven biss, stored communications act, subpoenas, the sparrow project, trevor fitzgibbon
Companies: twitter

As Devin Nunes Threatens More SLAPP Suits, He May Have To Explain Why Cows Can Type In His First SLAPP Suit

from the cows-that-type dept

It has become abundantly clear that Devin Nunes, who once co-sponsored the "Discouraging Frivolous Lawsuits Act," has decided that the best strategy to all of his critics and any reporting that calls him out is to file completely bullshit SLAPP suits against those critics. It started with the lawsuit against a satirical cow and has continued with more lawsuits against reporters, political researchers, newspapers and political strategists. Given that he's gone on all in with that strategy, it's no surprise that he says he's going to sue CNN and the Daily Beast this week, both of whom reported on stories about Nunes that look pretty bad for him.

Because it seems clear that Nunes really doesn't want you to read these stories, you should probably know that the Daily Beast story quotes indicted Rudy Giuliani associate Lev Parnas's lawyer Ed MacMahon saying that Parnas "helped arrange meetings and calls in Europe" for Nunes when he visited there last year, while CNN quoted a different Parnas lawyer saying that, among the meetings set up, was one between Nunes and disgraced former Ukrainian prosecutor Victor Shokin. Let's be clear, if these reports are false, then it's possible Nunes would have a claim against Parnas (or potentially Parnas' lawyers,), but not the news orgs reporting what he said. And it seems telling that when asked whether or not the story was true, Nunes did not deny it:

On Sunday, Bartiromo asked Nunes a very straightforward question — “Were you in Vienna with Shokin?” — but instead of answering, Nunes railed against the media and threatened to get litigious.

“I really want to answer all of these questions ... but because there is criminal activity here, we’re working with the appropriate law enforcement agencies, we’re gonna file all this — everyone is gonna know the truth, everyone is gonna know all the facts — but I think you can understand that I can’t compete by trying to debate this out with the public media, when 90 percent of the media are totally corrupt,” Nunes said.

He continued: “And because this is criminal in nature, and because it’s so bad, it’s so slanderous, we’ve got all the facts on our side, and we’re going to file in federal court, because I’m not gonna sit here and try to compete against the media that I have no chance of winning with. I will win in court, and they’ll have a chance to cooperate, and they’ll have to show how they work with someone who has been indicted, which is likely conspiring to obstruct justice.”

Just to be clear, this is all utter and complete nonsense. Their reporting isn't criminal. It's certainly not "slanderous." This is Nunes throwing shit at the wall rather than responding to a serious journalist's question.

Somewhat hilariously, Nunes also claims that when he sues both media properties, he doesn't think they'll show up in court and he'll have to chase them down.

In that video, talking to Sean Hannity, Nunes says:

I have a bet for you Sean: CNN and the Daily Beast are going to run for cover. They're going to fight this. They're not going to show up in court. They're not going to accept service. But at the end of the day I'm going to track them down, and I'm going to hold them accountable.

If I were Sean Hannity, I'd take that bet and double down. I'd bet a decent sum of money that assuming Nunes actually moves forward with this very dumb legal strategy, that not only will those two media companies accept service and show up in court, they'll show up with lawyers eager to blast these cases to smithereens and make Nunes look like the petty frivolous SLAPP-suit filing loser he is. I'd also imagine that both media operations might actually be willing to jump straight to the discovery process, as I'm sure they'd actually love to let their lawyers depose Nunes.

Meanwhile, back in that very first case, against the satirical Twitter cow, you may recall that Nunes himself admitted that these lawsuits were really fishing expeditions to find out who various journalist sources were, a claim that was made even more obvious in that case when his discovery demands were made public.

Part of the fishing expedition is a subpoena to Adam Parkomenko, a Democratic political strategist, who Nunes appears to think is somehow connected to the satirical accounts. Parkomenko hired lawyer Scott Surovell, who filed one of the most fun legal documents you'll ever read in support of his motion to quash the subpoena. There's the technical stuff -- claiming various process and rules violations regarding how the subpoena was issued, but that's not what has gotten the internet all excited. But then, the memorandum has some fun in explaining why the entire lawsuit is frivolous nonsense, including highlighting the lack of opposable digits from cows:

Both of these anonymous Twitter accounts are blatant parody accounts. No reasonable person would believe that Devin Nunes' cow actually has a Twitter account, or that the hyperbole, satire and cow-related jokes it posts are serious facts. It is self-evident that cows are domesticated livestock animals and do not have the intelligence, language, or opposable digits needed to operate a Twitter account. Moreover, by purporting to be from a cow, with the excessive use ofcow puns and cow imagery, it is plainly evident that it is not a serious news outlet. Defendant "Devin Nunes' Mom" likewise posts satirical patronizing, nagging, mothering comments which ostensibly treat Mr. Nunes as a misbehaving child. In light of the content, a reasonable person, reading the accounts in context, would not take Defendant "Devin Nunes' Cow" or Defendant "Devin Nunes' Mom" to be serious accounts imparting actual facts about Plaintiff. They are parody accounts. As such, the statements at issue in this case lack the defamatory sting necessary to state a cause of action.

Clearly, Mr. Surovell is unfamiliar with the popular children's book Click Clack, Moo; Cows That Type (which is actually a lot of fun), but maybe he doesn't have young kids. I don't think it would change the argument much, either way.

And, of course, all this has really done is opened up yet another opportunity for people to dunk on Nunes and call out questions about his actions. Indeed, Parkhomenko is now raising some questions about who is funding Nunes' legal spree:

If Nunes thought these lawsuits would create chilling effects and silence journalists and his critics, it appears he may be mistaken.

Filed Under: 1st amendment, adam parkomenko, defamation, devin nunes, devin's cow, devincow, free speech, intimidation, lev parnas, slapp, ukraine
Companies: cnn, daily beast