Texas Revenge Porn Laws Loses Battle With First Amendment

from the do-it-right-or-you-might-as-well-not-do-it-at-all dept

Texas attorney Mark Bennett -- instrumental in getting an unconstitutional "peeping tom" law tossed in 2014 -- has scored another win for the First Amendment by getting an unconstitutional revenge porn law tossed. It's not that anyone (except revenge porn purveyors) wants to see revenge porn go unchecked. It's that there's plenty of laws on the books already to address the problem and those written to target revenge porn tend to do collateral damage to the Constitution.

Mark Bennett began this fight back in 2015, right after the law went into effect. As Scott Greenfield reports, Bennett has secured a win in the 12th District Court of Appeals, reversing the lower court's finding the law was First Amendment-compliant.

As has been argued from the day Mary Anne Franks began her efforts to create a criminal revenge porn statute, it clearly implicated the First Amendment’s prohibition against laws infringing on free expression, to which she merely screamed her denials and did her best to deflect by creating a fantasy interpretation of the First Amendment. The court made swift work of it.

In the instant case, Section 21.16(b) proscribes the disclosure of certain visual material, including any film, photograph, or videotape in various formats. Because the photographs and visual recordings are inherently expressive and the First Amendment applies to the distribution of such expressive media in the same way it applies to their creation, we conclude that the right to freedom of speech is implicated in this case.

As the court notes, the restriction on revenge porn is content-based. Content-based restrictions require greater scrutiny to adhere to the Constitution and Texas' law cannot hold up to this level of scrutiny. From the decision [PDF]:

In the instant case, the State conceded at oral argument that Section 21.16(b) properly is subject to strict scrutiny analysis. We agree. Here, Section 21.16(b)(1) does not penalize all intentional disclosure of visual material depicting another person. See TEX. PENAL CODE ANN. § 21.16(b)(1). Rather, Section 21.16(b)(1) penalizes only a subset of disclosed images, those which depict another person with the person’s intimate parts exposed or engaged in sexual conduct. See id. § 21.16(a)(1), (3), (b)(1). Therefore, we conclude that Section 21.16(b)(1) discriminates on the basis of content.

The state tried to claim revenge porn is always obscene material. As the court points out, the state cannot make this determination on its own. It needs the court's help and, further than that, courts need a jury's help to determine whether or not disputed content is actually obscene.

Then it points out the obvious flaw in this argument -- one the state should have caught before arguing a new, unconstitutional law was needed to regulate obscenity.

Here, Section 21.16 does not include language that would permit a trier of fact to determine that the visual material disclosed is obscene. Moreover, if, as the State argues, any visual material disclosed under Section 21.16(b) is obscene, the statute is wholly redundant in light of Texas’s obscenity statutes.

Having dispensed with the state's attempts to salvage a redundant law, the court gives it this send off -- a light kick to ass of legislators and the state's legal counsel: DO BETTER.

At the very least, Section 21.16(b)(2) could be narrowed by requiring that the disclosing person have knowledge of the circumstances giving rise to the depicted person’s privacy expectation. But because Section 21.16(b) does not use the least restrictive means of achieving what we have assumed to be the compelling government interest of preventing the intolerable invasion of a substantial privacy interest, it is an invalid content-based restriction in violation of the First Amendment.

Once again, it's not that revenge porn should be ignored. It's that it's almost impossible to craft a law targeting revenge porn without doing damage to the First Amendment. As multiple prosecutions have shown, revenge porn purveyors tend to break plenty of existing laws. Prosecutors and regulators have had little problem shutting down sites using laws not specifically created to target revenge porn. The problem is most legislators like to appear to be doing something about societal issues, but often have little interest in ensuring their proposed statutes are Constitutionally-sound before pushing them across governors' desks. As the court points out here, a little care taken during the crafting process would have gone a long way towards keeping this law alive.

Filed Under: constitution, first amendment, mark bennett, revenge porn, texas

We Have The 'Criminal Charges' Patrick Zarrelli Claims He Filed Against Our Writer, And They're Not What He Thinks

from the that's-not-a-criminal-case dept

Earlier this week, we noted that "website reputation management" dude, Patrick Zarrelli had sent us a large packet of papers claiming that he had "filed criminal charges and bar complaints in seven states" against a group of people, including our own Tim Cushing, because Tim had written a blog post making fun of Zarrelli for a spectacular failure in trying to get certain articles about the lawyer Gary Ostrow removed from the internet. You can read all the details at previous posts, but Zarrelli claimed that he was filing "criminal charges and bar complaints" against Cushing and a small group of lawyers -- Scott Greenfield, Mark Bennett, Brian Tannebaum and Sam Glover -- who had all made fun of Zarrelli's ridiculous claims.

As we noted in our original post, the cover letter made these (typo-riddled) claims, but the large packets of paper, showed no details, no explanation of any laws broken, no legal filings, no lawsuit, no "criminal charges" and no "bar complaints." All that it included were stacks and stacks of paper printouts of screenshots of blog posts, blog comments, tweets, Facebook comments and a few profile pages. I hadn't had them scanned originally, but after a bunch of people asked for them, I had a poor, overworked colleague of mine here at Techdirt scan them all in. And, then, the good folks over at PINAC were kind enough to reach out to the Ft. Lauderdale police and get a copy of the "Incident/Investigation Report" that it had on the matter.

In my original post earlier this week, I noted that "it sounds like he may have just whined to some law enforcement folks in Florida who probably filed it in the garbage file where it belongs" and indeed that appears to be the case. These are not "criminal charges." These are Patrick Zarrelli wandered into the Fort Lauderdale Police Department and told someone in the lobby basically "but people on the internet are being mean to me!" and they wrote it all down (not even spelling Zarrelli's name correctly) and almost certainly then did absolutely nothing with it. The filing also spells Tim Cushing's name as Tim Lushing. Here's the crux of it:

Contact was made with the reportee Patrick Zayrelli in the FLPD lobby. Mr. Zayrelli advised that he works for Dependable Website Management which is a cyber bullying and reputation management company. He says that his client Attorney Gary Ostrow hired him because a group of attorney`s were attacking his character and tarnishing him reputation on line due to an incident that occurred with him years ago.

Mr. Zayrelli stated that his company contacts the parties and ask them to take their posts down, which is what he said he did when he called all the listed attorneys but each one of them became defensive and started cursing at him. He was especially concerned because according to him, one of the attorneys Brian Tannebaum who practices in Miami told him that he would have BSO deputies arrest him.

Mr. Zayrelli said that the next day after he called the attorney`s all of his social media accounts (facebook,twitter) were all filled with negative posts about him by all of the attorneys and some had even posted pornographic material on his facebook

The report itself lists Zarrelli's client, Gary Ostrow, along with all of the previously named folks, and one more: a lawyer named Dan Hull, whom we hadn't previously seen connected to all of this, but there he is. Notably, the report says there are "0 Victims" and doesn't list anyone's name as a victim (probably because there was no crime). Hell, it lists Ostrow in the same part as with all of the people Zarrelli was complaining about.

There's not much of a story here other than confirming what we originally suspected: there are no "criminal charges." Whether or not there are "bar complaints" I imagine we'll have to wait to find out. And, again, if Zarrelli is seriously contemplating filing a civil suit in Florida, as he had claimed, he really ought to familiarize himself with Florida's anti-SLAPP statute, because I can assure you that every one of the people he is threatening are deeply familiar with it, and will certainly make use of it to get Zarrelli to pay any of their legal fees for filing a bogus lawsuit.

Anyway, the complaint and all of the contents of the envelope that was sent to us are embedded below. Zarrelli appears to have made a horrible "reputation management" person, and an even worse internet lawyer.

Filed Under: brian tannebaum, dan hull, first amendment, free speech, gary ostrow, mark bennett, patrick zarrelli, police, reputation management, sam glover, scott greenfield

Patrick Zarrelli Claims He's Filing Criminal Charges Against Us Because He Doesn't Like Our Post About Him

from the dude:-do-you-even-first-amendment? dept

So... a week and a half ago, we published an article, written by Tim Cushing, discussing the rather poor decisions of a self-proclaimed "reputation management" guy named Patrick Zarrelli. Zarrelli, it appeared, had been hired by Florida attorney Gary Ostrow, to improve his reputation, but instead, Zarrelli proceeded on a course that seemed more likely to destroy his own reputation, and potentially drag Ostrow further down with him.

The background: Ostrow, back in 2012, put out a ridiculous press release, claiming that he was "taking on all celebrity criminal cases in Florida." The press release was so ridiculous and silly that it resulted in mocking and scorn from lawyers online, including Scott Greenfield and Mark Bennett. Apparently, three years later, Ostrow decided he wanted those posts to disappear from the internet. As we've seen, trying to make things disappear from the internet is generally a bad idea that has a history of backfiring spectacularly, often generating renewed interest in that which you wish to delete.

It tends to be even worse when you attempt to delete the content in the most ham-fisted manner possible, which appears to have been Zarrelli's strategy. He called up Greenfield and Bennett, and did a weird passive-aggressive combination of threatening them with totally baseless legal threats, and a weird sort of "hey we're all buddies, let's just take this content down" ridiculousness. If you haven't, you really need to listen to the voicemail that Zarrelli left Greenfield. I could describe it, but no description could do that voicemail justice. It includes a bunch of nonsense legal terms ("hot news exemption"?), a bizarre attempt to "trade" website design if Greenfield will take down the article ("let us improve your blog for you"), threats ("it's not going to be fun for you") and a bizarre listing of his family tree of "high-end lawyers."

All this resulted in more blog posts from Bennett and Greenfield. Another attorney, Brian Tannebaum, apparently also was on the receiving end of ridiculous threats from Zarrelli.

Throughout it all, Zarrelli kept publicly (on Facebook and Twitter) putting up a show of bravado, and a few times suggested that the reason that everyone was pissed at him was because of some sort of "lawyerly bravado" that he felt they believed they needed to show before capitulating -- rather than the truth: which is that these lawyers know Zarrelli has no legal basis for his claims, and they have little time for censorious jerks who are threatening them with bogus legal threats.

Now we get to the rule of holes: when you're in one, stop digging.

We had thought that, as with many such cases, Zarrelli might calm down, get a little perspective and move on with his life -- possibly in a different business than "reputation management." But, apparently, he (unwisely) chose plan B.

Yesterday afternoon a large envelope stuffed with hundreds of pages of paper showed up at my office, which appears to be a hilariously stupid threat that he's suing basically everyone who made fun of him. If you can't read that "cover page," here's what it says:

Dear Tech Dirt [sic] Team,

A writer of yours named Tim Cushings [sic] is using your website to harass, stalk, libel, and cyber bully me online. We have filed criminal charges and bar complaints in seven states. We are now in the process of filling [sic] a federal lawsuit in Florida. Due to your companies [sic] high page rank, there [sic] attack articles about me dominate the search results. They are even above my own Facebook page.

Thank you,

Patrick Zarrelli

And, as you can see, there are large packets for the lawyers mentioned above -- Scott Greenfield, Mark Bennett and Brian Tannebaum, as well as one for Tim Cushing, who is listed together with Sam Glover (I have no idea why). Each "cover page" lists a "criminal case #": "Criminal Case #15-172076FLPD." I can't wait to see what criminal law it violates to "rank better than my Facebook page in search results," but I get the feeling that the Florida police won't be doing much with this.

Beyond the misspellings, the cover letter is just ridiculous. It doesn't actually make any request to us. It doesn't say that anything has actually been filed against us, or Tim directly, despite the clear attempt to imply as much. There is no effort to (as you're kinda required to do) name what actual statements constitute violations of the law (he can keep looking, 'cause he's not going to find any). Also, "harass, stalk, libel, and cyber bully." Dude, he wrote an article about you fucking up. That's not harassing, stalking, libeling or cyber bullying. That's called reporting, and it's damn well protected by the First Amendment. Whatever "criminal charges" he thinks he's filed are not what he seems to think they are. Individuals don't file "criminal charges." That's law enforcement's job. It sounds like he may have just whined to some law enforcement folks in Florida who probably filed it in the garbage file where it belongs. Obviously, he's not filing "bar complaints" against us or Cushing, since Cushing isn't a lawyer. He very well may have against the lawyers listed, but those will all go nowhere fast.

If he's seriously contemplating "filling [sic] a federal lawsuit in Florida" -- well, then he should have had his lawyer contact us, rather than himself -- and he might want to acquaint himself carefully with Florida's brand new anti-SLAPP law, which we would almost certainly make use of in seeking legal fees for filing a bogus lawsuit whose sole purpose was an attempt to stifle Constitutionally protected speech.

Oh, and you might wonder what's in all the pages in those packets. It is not -- as you might think from the cover pages -- any actual lawsuit or bar complaint or anything of the sort. It is not any actual demands or explanation of what laws he thinks we broke. Rather, each packet is just pages upon pages of screenshot printouts of the articles that we wrote, the comments on those articles, and comments found on Twitter and Facebook where people were mocking Zarrelli.

Dude: let it go. You messed up and people made fun of you for it. There's nothing illegal about that (in either the criminal or the civil sense).

Update: After a bunch of requests, we've scanned in the full packets. You can see them below:

Filed Under: anti-slapp, brian tannebaum, criminal charges, defamation, free speech, gary ostrow, mark bennett, patrick zarrelli, reputation management, sam glover, scott greenfield, threats

Reputation Management Bro Destroys His, And His Client's, Reputation With Threatening Phone Calls To Defense Lawyers

from the 'I'll-kill-us-both-or-die-trying!' dept

I have to assume the so-called "reputation management" business is working for someone, but so far all we have to go on are the spectacular flaming wreckage left behind by fools who insist on punching above their weight.

Late in 2012, Florida attorney Gary Ostrow ostentatiously announced he was now willing to represent as many criminally-charged celebrities as would have him. Shortly thereafter, he was mocked by other attorneys who were far less narcissistic or needy.

Months passed and Ostrow was forgotten, as the world does not suffer from a lack of litigation-related stupidity. Unfortunately, it appears Ostrow refused to quit picking at the scab covering his self-inflicted Google wound. Unless Patrick Zarrelli is performing some pro bono work, Ostrow hired this motormouth to clean up his search results. (From Zarrelli's Twitter profile.)

What persuaded Ostrow to hire Zarrelli cannot easily be determined by examining his reputation management "firm's" website. Despite claiming to be for businesses which "only accept the best," the company claims to offer "management plans... renowned for their well roundness, effectiveness, and tech savvy," custom-fit rep management solutions for "just about any budget even for charity’s and start-ups," and -- to ensure it's not duped by botnets -- a free quote with a captcha that requires potential customers to prove "Your a human."

(Zarrelli -- despite his extensive, unproven background in web design, SEO wizardry and reputation management -- still seems to find the subtle differences between "your" and "you're" have eluded his otherwise pristine business acumen. [Also "to/too," "hear/here" and pretty much every other homonym he banged out on his keyboard during his Facebook ranting/Twitter self-emasculation.)

On top of that, his rep management skills skillz seem to include the creation of fake positive reviews.

Combative management takes steps to fight back against poor reviews by flooding the internet with positive reviews of your company. Even though negative statements cannot be erased, we can make them almost impossible to find, buried under glowing positivity and reviews that will bring customers flocking to you. We’ll push those negative results straight from the first page of search results into places that no one will ever look.

This is Gary Ostrow's savior.

YOU'LL FULLY BELIEVE WHAT HAPPENS NEXT.

Apparently believing himself to be the first person to walk the internet, Zarrelli began calling up lawyers who had written pieces critical of Ostrow's celebrity legal services and making a bunch of vague, but completely stupid threats. The first person he called was New York defense attorney Scott Greenfield, who -- like everyone else he contacted -- knows his way around the First Amendment and bogus threats.

When Zarrelli called and launched into his pitch of his mad internet skillz and how I would have to take down posts about Ostrow or face his wrath, a bar discipline complaint, I told him to “go for it, asswipe.” My tolerance for stupid is limited these days.

Zarrelli is nothing if not persistent. Unwilling to take "go for it, asswipe" for an answer, he called up other lawyers who had written about Ostrow -- again, lawyers who also had limited tolerance for idiots and idiotic threats.

Apparently, after I hung up on him, he called Dan Hull (who called to share his fun trolling this kid, who informed Hull that he was going to destroy his firm) and Mark Bennett, threatening him as well with a grievance if he didn’t succumb to Zarrelli’s overwhelming power.

Greenfield has the recording of Zarrelli's long-winded threats posted to his site. It's definitely worth a listen, especially as he claims his websites have "25 million views" and name-drops relatives like anyone cares. (Also, "my family is riddled with high-end lawyers." [?])

Bennett, however, was First to Post.

Well, actually second. In a breather between threatening phone calls, Zarrelli took to Facebook to air his complaints to a more receptive audience. The full thing is worth a read, but here are some of the better bits.

Never encountered such a rude, unethical shady bunch of attorneys in my life. These guys literally wrote a negative article about a colleagues press release, just so they could tag in an arrest from his past to it, in an attempt to enter his search results and steal his business.

[...]

The thing that's interesting about attorneys like this, is that they think they understand the internet and its laws, even though what they actually know about the internet could fit into a thimble. The truth is they were out of law school before the internet was even invented!

[...]

[I[n the real world they have a better understand of our complex laws and can use that to their advantage to bully people.

However on the internet, this means absolutely nothing, since the internet essentially is governed by no one. Moreover the internet is one of the most well documented places on the planet, and if you know how to read the code you can track and map out anything.

The internet's innate ability to thoroughly document stuff is coming back to bite Zarrelli. He's nuked his Facebook post, but it has been archived and screenshotted. His threatening phone calls have been posted to a blog with a high page rank, as well as Soundcloud. Everything is indeed well-documented -- something Zarrelli clearly overlooked when "engaging" others on behalf of his client.

Anyway, Mark Bennett took to his blog to detail his "discussion" with Zarrelli. His words were no kinder than Greenfield's.

I don't play well with extortionists, so I told Zarrelli to go ahead and file his grievance. I may have dropped an f-bomb or two—Gary, don't you hate it when people threaten to do stupid things instead of just doing them? I know I do.

Anyway, Gary, I thought you'd like to know that some stupid asshole calling himself Patrick Zarrelli is going around trying to fuck up your reputation while claiming to be your agent. Despite the judgment errors in your past (which are legion—we all make mistakes), I doubt that you are dumb enough to hire this Zarrelli character to try to push me around.

Zarrelli also called attorney Brian Tannebaum, offering up the same litany of vague threats and stupidity. Then, he briefly engaged with his critics on Twitter, offering more threats, some half-hearted braggadocio and -- finally -- something that sounded like a playground bully suddenly realizing his supposed victims aren't actually scared of him.

to late millions have seen it im suing you tomorrow. your a bad lawyer and person. leave me alone!!!!

Bennett has also published a follow-up post that's going to do little to change Bennett's reputation as a "bad person" who should just leave the person who picked the fight "alone."

You are not a "professional." You are a born loser trying to muddle by, a socially retarded 36-year-old man-child with a string of failures who is still trying to figure out why the world has stopped handing things to him on a silver platter.

A professional in the reputation management business might have performed a little due diligence before threatening lawyers who a) know the law and b) are used to being threatened by stupid people. Someone who claims to know the SEO world inside and out might have realized attacking influential blogs and websites is about the worst thing you can do for a client's "reputation."

Greenfield wrote a blog post about you this morning. One post. The only time he has mentioned your name. He published two hours ago. When I google your name—just "Patrick Zarrelli" —Greenfield's posts comes up in the #5 slot, after your carefully cultivated social-media pages. When I google "Patrick Zarrelli reputation management" it's the first hit. Nobody had to do any SEO to make that happen; I hadn’t linked to it until just now.

It's just Scott's blog, which Google absolutely loves.

Scott's blog has Google Pagerank 6. You do not have anything that compares. His post about you will be at the top of Google search results by the end of the day, and it will stay there for as long as you want to keep playing.

Zarrelli is finished in the reputation management business. I wouldn't shed any tears, though. He clearly didn't belong in it. Ostrow's reputation has also taken another hit, despite (presumably) paying Zarrelli to patch it up. Instead of helping his client, Zarrelli burned both of their reputations to the ground with a few short phone calls and utilized the power of social media to salt the earth. Well done, Mr. Zarrelli. Time to switch to Career Path B.

Filed Under: gary ostrow, lawyers, mark bennett, patrick zarrelli, reputation management, scott greenfield, threats
Companies: dependable website management

Here's The Ridiculous Texas Law That Allows Law Enforcement To Pretend A Digital Clock Is A Hoax Bomb

from the everything's-bigger-in-Texas,-including-overbroad-wording dept

There may be some method behind the zero tolerance, racially-tinged madness of the Irving, Texas, police department. The department perp-walked fourteen-year-old Ahmed Mohamed out of school and into its welcoming arms for the crime of not building a bomb. It was a clock, but because it had wires and a circuit board and was contained in a metal case and was on school grounds and Ahmed Mohamed's name is Ahmed Mohamed, the police decided that if it wasn't a bomb, it was the next best thing: a "bomb hoax."

So, after handcuffing him "for his safety" (ACTUAL QUOTE) and holding the non-bomb "as evidence" of a crime that wasn't committed, the department has dropped all charges. It isn't very repentant, however, despite everyone else -- including the President of the United States -- expressing support for the student. It still claims everything about the horrendous debacle was by the book. And, sadly enough, it probably was.

Mark W. Bennett, a Houston (TX) criminal-defense lawyer, pointed out that the state's "hoax bomb" statute is not just the regular kind of Texas-sized overbroad, but perhaps unconstitutionally overbroad. In a series of tweets, he broke down just how insanely stupid the law is.

1/ A hoax bomb includes a device that by its design causes reaction of any type by an official of a public safety agency.

— Mark W. Bennett (@MarkWBennett) September 16, 2015

2/ Possessing a hoax bomb with intent to use it to cause reaction by an official of a public safety agency is a crime.

— Mark W. Bennett (@MarkWBennett) September 16, 2015

3/ A telephone is designed to call other telephones, making them ring, causing a reaction.

— Mark W. Bennett (@MarkWBennett) September 16, 2015

4/ So possessing a telephone with the intent to call the cops is a violation of Texas’s “hoax bomb” statute.

— Mark W. Bennett (@MarkWBennett) September 16, 2015

5/ Lesson: statute titles don’t mean anything.

— Mark W. Bennett (@MarkWBennett) September 16, 2015

In case you can't see the embed, it says the following:

1/ A hoax bomb includes a device that by its design causes reaction of any type by an official of a public safety agency.

2/ Possessing a hoax bomb with intent to use it to cause reaction by an official of a public safety agency is a crime.

3/ A telephone is designed to call other telephones, making them ring, causing a reaction.

4/ So possessing a telephone with the intent to call the cops is a violation of Texas’s “hoax bomb” statute.

5/ Lesson: statute titles don’t mean anything.

Here's the actual language of the statute, which shows Bennett wasn't exaggerating.

Sec. 46.08. HOAX BOMBS.

(a) A person commits an offense if the person knowingly manufactures, sells, purchases, transports, or possesses a hoax bomb with intent to use the hoax bomb to:

(1) make another believe that the hoax bomb is an explosive or incendiary device; or

(2) cause alarm or reaction of any type by an official of a public safety agency or volunteer agency organized to deal with emergencies.

Well, Mohamed didn't pretend the clock was a bomb. Far from it. But that doesn't matter because of subsection (2), which takes away anything involving intent and puts it all in the fearful minds of nearly any government official. "Alarm or reaction of ANY type." How does one avoid causing an alarm or reaction in others, especially others that seem particularly easily alarmed? It's impossible.

Mohamed's science teacher wasn't alarmed, but he did remark that maybe Ahmed shouldn't show this project to anyone else. Mohamed didn't plan to, but the clock started beeping during another class and shortly thereafter, his English teacher started panicking. (But in the controlled sort of panic where a person demands someone hand over a bomb -- something no rational person would do if they actually thought the device in question was a bomb.)

Now, if we're going to play along with this statute's wordings, a whole lot of everyday items suddenly become much more "dangerous." Road flares, cell phones, batteries, a box full of wires, a vibrator, a doorbell, a power inverter… basically anything someone might feel could explode or could trigger an explosion would fall under the enormous shadow this statute casts.

But if we're going to play along with the police and the stupid law they used to defend their actions, we have to ask why several school officials -- including the English teacher who reported Mohamed to them -- weren't arrested as well. After all, they very likely knew they didn't have an actual "explosive or incendiary device" in their hands, and yet they approached the police department with claims that they did. This very definitely provoked a reaction and, at that point, the device was in the possession of school personnel. That's subsection (2).

By claiming a bomb was on the school's premises (when they likely knew it wasn't a bomb -- see also: no evacuation of the school, no warning sent to parents, etc.), they also violated subsection (1) of the statute:

make another believe that the hoax bomb is an explosive or incendiary device

Perp walking a few school officials out of the building and into squad cars would certainly teach them not to waste valuable law enforcement resources with stupid, fearful bullshit. But these actions would only be taken by a police department not so inclined to waste its own time investigating bombs that aren't bombs and arresting students who aren't criminals. And, as can clearly be seen, the Irving PD does not meet these standards.

Filed Under: ahmed mohamed, hoax bomb, laws, mark bennett, regulations, texas

Federal Revenge Porn Bill Will Look To Criminalize Websites

from the dangerous-step dept

My own representative in Congress, Jackie Speier, has apparently decided to introduce a federal "revenge porn" bill, which is being drafted, in part, by Prof. Mary Anne Franks, who has flat out admitted that her goal is to undermine Section 230 protections for websites (protecting them from liability of actions by third parties) to make them liable for others' actions. Now, I've never written about Franks before, but the last time I linked to a story about her in a different post, she went ballistic on Twitter, attacking me in all sorts of misleading ways. So, let me just be very clear about this. Here's what she has said:

"The impact [of a federal law] for victims would be immediate," Franks said. "If it became a federal criminal law that you can't engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations."

That makes it clear her intent is to undermine Section 230 and make third parties -- like "Google, any website, Verizon... face liability."

Now, her retort to all of this is likely that she's not seeking to undermine Section 230 in any way. Rather, she's attempting to do something of an end-run around it. Section 230 has never protected sites from liability of federal crimes -- just civil infractions and state crimes. So her goal is to make the amorphous concept of "revenge porn" a "federal crime" thereby suddenly making third-party websites liable. She will argue that does nothing to undermine Section 230. A more reasoned and thoughtful look at the issue, however, shows how this effort is fraught with dangerous consequences and potential First Amendment problems.

Taking a step back, though, let's be clear: revenge porn -- the practice of posting naked pictures of someone (who likely took those photos for an individual or themselves, rather than the public) along with that person's identifying information -- is odious. Those who are involved in the practice are morally repugnant individuals. And yet, what we've seen is that there do appear to be ways to deal with them. One of the most well-known creators of revenge porn, Hunter Moore, was recently arrested on charges that he conspired with another person to hack into email accounts to get more photos. Often, those engaged in revenge porn are also engaged in extortion over those images or other crimes on which they can be charged. Some revenge porn sites have been hit with lawsuits for copyright infringement -- though that creates a whole different set of problems.

Meanwhile, amazing folks like Adam Steinbaugh have been diligently tracking down and exposing the details of people who operate revenge porn sites, which can sometimes be an effective (if slightly ironic) way to get them to go away. But that's an example where more speech is often a better result than censoring speech by increasing liability.

Still, you can see why there's a temptation to create a new anti-revenge porn statute. The whole concept of revenge porn is itself repugnant, so it's tempting (especially as a lawmaker) to pull out that old hammer and create some regulations. But the dangers of regulating based on reacting to the odiousness of those sites may obscure the way such laws will inevitably -- as Prof. Franks herself admits -- impact companies that are clearly not engaged in revenge porn.

In the article about the legislation, EFF's Matt Zimmerman (who, actually, just left EFF) points out that using criminal law here is "dangerous" because it would likely lead lots of companies to reflexively delete all sorts of content, including plenty of perfectly legal and legitimate content, to avoid the sort of liability Franks describes. And that's the huge problem here. By spreading liability, you guarantee over-censorship. It's easy for people who are narrowly focused on a single issue to not recognize the wider impact that issue may have. Trying to accurately describe what "revenge porn" is for the sake of criminalizing its posting, will almost certainly have chilling effects on third parties and undermine the very intent of the CDA's Section 230.

People who don't think through the details seem to assume that it must be easy to define what is "revenge porn," but the deeper you go, the more difficult it becomes to define -- and the more risks there are of both over-criminalizing and creating serious First Amendment issues. For example, you could say that sites should be forced to take down photos of individuals where those individuals insist that the photos are problematic. But then you'd have to deal with situations, like with Ranaan Katz, where he went after a blogger and Google (using civil copyright law) for posting an "unflattering" photo. Do we really want to bring criminal law into that arena?

And the First Amendment issue is not easy to get around. At all. As lawyer Mark Bennett discussed in trying to create a First Amendment-compliant anti-revenge-porn statute, it's not an easy challenge:

The First Amendment problem we face is that “posting nude or explicit images of former lovers online” is speech; a statute focused on such posting is a content-based regulation of speech; content-based regulations of speech are presumed to be invalid (that is, speech is presumed to be protected); and the Supreme Court in U.S. v. Stevens expressly rejected a balancing test for content-based criminal laws, instead applying a categorical test.

At best, Bennett tries, as an exercise, to see if it would be possible to extend obscenity laws to cover "revenge porn," but that would massively expand obscenity laws, again in potentially dangerous ways. The problem here is that pretty much everyone agrees that revenge porn is a really horrible thing -- but any attempt to criminalize it will have serious implications way beyond the targeted issue.

Instead of following Franks down that dangerous road, it would be wise to focus on ways to use existing laws to go after those who are clearly engaged in related questionable behaviors. Changing the laws to put the burden on third parties is only going to create significant new problems. I'm disappointed that my own Representative in Congress, Jackie Speier, appears to not realize this, and I will be contacting her office to express my concerns about the bill.

Filed Under: cda, first amendment, jackie speier, liability, mark bennett, mary anne franks, revenge porn, section 230, speech

Teri Buhl Threatens To Sue Us And Others; Still Seems Confused About The Law

from the some-free-advice dept

I had kind of thought that after we posted our response to Teri Buhl, who got upset about our original article about her whacko claims that her publicly posted tweets could not be quoted, that the story would hopefully fade away. However, this morning, Jim Romenesko, who allowed Buhl to "respond" to us via his blog, has published another story noting that the thanks he received from Buhl is that she is threatening to sue him. Lovely. Oh yeah, and in her communication with Romenesko, she apparently told him she's planning to sue us at Techdirt, too (which, by the way, is the first we've heard of this):

Today, Buhl is threatening to sue me for using the photo from her Twitter page. She says she owns the image and never gave me or others permission to publish it. She adds that she's going to file a small claims suit against Mark Bennett and Techdirt for keeping the photo on their sites after being told to take it down.

"I don't want add you the same list [sic]," she writes. "I'm asking Poynter and Knight to do the same thing today before I file."

My response to her: "Really, Teri?"

She replied:

yes really Jim – I am going to push it. It's a matter a principle I am sick of other publications lifting other jurnos ideas, photos, words etc… and printing them on their publications with out permission or proper credit with links etcc. I think it's an issue that should have been challenged a long time ago. I took the photo I own it etc…

Of course, in our last post on the subject, we suggested that Buhl acquaint herself with fair use rules. It would appear that she has chosen not to do that. We did not "lift" her "ideas, photos, words." We reported on her actions and statements.

It also appears that she has not familiarized herself with the nature of copyright law, and the fact that small claims courts have no jurisdiction over copyright issues. Not that I should be doing the legal work the lawyer she claims to have contacted failed to do, but 28 USC 1338 notes:

The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks. No State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights.

This is kind of basic stuff.

Amusingly, just a few weeks ago, we wrote about the Copyright Office exploring the idea of setting up a small claims court for copyright. But, as of right now, it does not exist.

And, even if we ignored that pesky bit of information, we've still got the fair use hurdle, which she can't get past. She claims "I took the photo I own it etc." Except, it's not that simple. If she took the photo, she might hold the copyright on certain elements of the photo -- but that is not the same as "owning" the entire photo and being able to block any and all uses of it. This is another thing any lawyer would hopefully explain to her. Our use of the photo, to show the key point of contention that led to the story (her claiming via her Twitter profile, incorrectly, that no one could quote her Twitter feed), was clearly for the purpose of reporting on her claims. Suing us, Bennett (a lawyer) or Romenesko would not likely go well for Buhl who seems very focused on bluster, with little legal basis to back it up. We could go through a very, very, very long list of case law and the actual text of copyright law that shows that what we did is absolutely reasonable and protected action, but I guess we'll save it for this "lawsuit" should it ever actually be filed.

Oh, and one more thing. In the comments on the Romenesko post, she makes this rather incredible statement:

how about this - no one who wrote about this little debate has bothered to call an experienced copyright lawyer and get a comment. I did before I wrote Jim.

This is actually wrong on so many levels. The initial story, involving her original claims, included "experienced copyright lawyer" Marc Randazza noting that her claims were "moronic." However, for her edification, this morning I reached out to three more "experienced copyright lawyers" who agreed that she doesn't seem to understand the law, on a whole variety of levels, as we discussed in our response to her many attempts to contact us, and as explained above.

In the meantime, Mark Bennett, who wrote the original post that kicked this whole thing off, has been doing a nice job cataloging the ever-changing legal theories that Buhl keeps tossing out there -- none of which have much basis in reality:

1. That republishing tweets designated "not for publication" can be the basis for a lawsuit.
2. That she hadn't written the tweets I republished ("Mark did you fact check my twitter feed to make sure I tweeted what you published?").
3. That I libeled her.
4. That retweeting "protected" tweets can be the basis for a lawsuit ("I think the question is if tweets are protected are they public").
5. That republishing her tweets violates her copyright.
6. That republishing her background photo violates her copyright.

As he notes: "Changing theories is always a good indication that the person threatening a lawsuit has no good reason to sue: if you have a reason to file suit, you know it."

So, once again, Ms. Buhl might want to think carefully before proceeding with any planned legal action against us or others. Contrary to her stated opinion, these are not unsettled matters, nor is the law in her favor. Similarly, she might want to recognize that, once proven wrong, digging in and making further claims is not a productive course of action. Sometimes it's okay to admit that you were wrong, and to let it go.

Filed Under: copyright, fair use, jim romenesko, mark bennett, reporting, small claims, small claims court, teri buhl, threats