Judge Finds No One To Like In Lawsuit Brought By Ripoff Report Against Overreaching State Prosecutor

from the Section-230-but-an-afterthought dept

Ripoff Report has always been targeted by some very creative legal efforts, thanks to its aggressive use of its Section 230 protections. Forced to find other ways to remove allegedly defamatory content, plaintiffs have tried everything from questionable copyright lawsuits to extortion allegations. Not much of it has stuck.

Ripoff Report not only plays Section 230 hardball, but it often brings lawsuits against those who have attempted to remove third-party content through dubious legal means. In this case, covered by Eric Goldman, Xcentric (Ripoff Report's host/parent company) is seeking a preliminary injunction against Iowa county prosecutor Ben Smith, who has relentlessly pursued the company in hopes of finding a link between certain third party contributors and the company itself.

The judge presiding over the lawsuit isn't impressed with either side. In the course of this opinion, which partially grants Xcentric's demand for an injunction, there are no winners: just two brutish louts engaged in questionable tactics.

Goldman notes there is a Section 230 nexus, but it's only a small part of the overall lawsuit -- one that Xcentric has deployed as an offensive weapon to head off further harassment by Ben Smith. (Goldman compares it to Google's lawsuit against Mississippi attorney general Jim Hood).

Xcentric raises a very questionable CDA claim, arguing that the protections grant it "immunity" from further prosecutorial actions related to content contributed by someone named "Meade." The judge finds that to be a bit of a stretch.

Plaintiffs argue that they are entitled to immunity under the CDA because – despite their financial relationship with Meade – they were not information content providers with regard to any of the allegedly-unlawful posts about the state’s witnesses. At this stage of the case, however, they have failed to demonstrate a likelihood of success on their claim that the CDA protects them from criminal liability for any potential violation of Iowa Code Section 720.4. This is because there is substantial evidence suggesting that the plaintiffs materially contributed to the alleged illegality of the information at issue.

[...]

I am not fully convinced of Magedson’s credibility on this issue. Xcentric paid Meade a large amount of money and Magedson has strong feelings about Richter’s case. I simply do not believe that he was blissfully unaware of what Meade was planning to post.

As Goldman notes, this sort of relationship is much "closer" than most other cases where Section 230 protections are invoked.

This isn't the only thing the judge finds questionable about Xcentric's claims and tactics. There's more criticism contained elsewhere in the opinion. While he does find its First Amendment claims credible, its assertions of Fourth and Sixth Amendment violations are less convincing.

[P]laintiffs contend that Smith violated their rights under the Fourth Amendment. According to their briefs, this argument is based on Smith’s application for, and execution of, a search warrant. The only evidence of record concerning a search warrant is the application and warrant concerning Anna Richter’s home… [Richter was charged with first-degree murder by Ben Smith, something a Ripoff Report review claimed was a bogus charge.]

Even if the plaintiffs had strong arguments on the substantive merits of this claim (and I am hardly convinced that they do), they did not address the crucial issue of standing. Fourth Amendment rights are personal and cannot be asserted vicariously. In order to have standing to complain about an allegedly-unreasonable search, a party must have a reasonable expectation of privacy in the area searched…

Plaintiffs have made no effort to show that they had a reasonable expectation of privacy with regard to Anna Richter’s home or any of the items seized from that home.

Xcentric's Sixth Amendment claims are even weaker.

Citing no authority, plaintiffs contend Smith violated their Sixth Amendment rights by obtaining and reviewing communications subject to the attorney-client privilege and by filing an ethics complaint against their counsel.

Plaintiffs’ failure to reference supporting authority is a major clue about the merits of this claim. I have not, through independent research, located any case law that might support the claim, as currently framed. Among other things, it is undisputed that Smith has not yet charged plaintiffs with any offense. But see Texas v. Cobb, 532 U.S. 162, 172 (2001) (Sixth Amendment right to counsel attaches only to charged offenses).

Perhaps there is a non-frivolous Sixth Amendment argument to be made, but plaintiffs have not taken the trouble to make it.

And circling back to Xcentric's First Amendment claims, Judge Leonard Strand finds its demand for an injunction to be more than a little hypocritical.

I also find plaintiffs’ proposed item I (enjoining Smith from “[t]hreatening, intimidating, accusing or otherwise stating that plaintiffs’ lawyers are violating any laws in representing plaintiffs”) to be inappropriate and sadly ironic. After loudly championing the importance of First Amendment freedoms in this case, plaintiffs have proposed a gag order that would restrain Smith’s speech.

But Smith is far from blameless. The judge also smacks the prosecutor around for his obsessive harassment of Xcentric, prompted by criticism of him hosted at Ripoff Report -- all of which was done supposedly to "protect" state's witnesses.

While Smith contends he is acting solely for the benefit of various witnesses who have been targeted on Ripoff Report, I find that he has acted, at least in part, for retaliatory reasons. For starters, I am amazed that Smith offered no direct evidence, such as copies, of any Ripoff Report posts that have allegedly harassed or defamed any witnesses who testified against Richter. Instead, he chose to provide only his own characterizations of the statements at issue...

If Smith’s investigatory tactics have truly been motivated by a desire to protect the State’s witnesses from harassing or defamatory posts on Ripoff Report, it would have been a fine idea for him to offer those statements into evidence.

The judge finds Smith's actions to be -- at least in part -- clearly retaliatory. The opinion lists several examples of how Smith's handling of Xcentric varied greatly from his pursuit of any other entity facing similar charges.

Smith admits that he has worked over a thousand hours and has issued over one hundred subpoenas during his investigation into Ripoff Report. Smith presented no evidence that in his role of Sac County Attorney, he has devoted similar time and resources into other investigations of potential misdemeanor offenses.

[...]

He wrote a 119-page, singled-spaced affidavit in support of an application to obtain a search warrant, relying on avowed enemies of Ripoff Report for substantial portions of its contents. He then filed the application as public record, rather than sealing it as is his usual practice. This allowed him, in effect, to publicly air his allegations about the plaintiffs before filing any charges.

[...]

More troubling, and what I find to be most persuasive, is what Smith did with privileged and confidential information after obtaining it by his myriad of subpoenas. Upon obtaining communications that clearly appear to be between Xcentric and its own counsel (e.g., Ex. 8), Smith did nothing to advise Xcentric of this fact. Nor did Smith do anything to preserve their confidentiality. Instead, he put at least one such communication (Ex. 8) into evidence in a proceeding and provided other presumably privileged communications to third-parties, including various enemies of Ripoff Report. He also disclosed Xcentric’s financial and banking information to third-parties, thus allowing that information to become public. While disclosing privileged and confidential information to others, Smith did not require those individuals to enter into non-disclosure agreements. He has provided no legal justification for this.

It's ugly all over, and Judge Strand is only willing to grant Xcentric some of what it requested. The injunction issued prevents prosecutor Ben Smith from doing the following:

A. Bringing criminal charges against Xcentric or Magedson related to any postings related to criticisms of the State or its evidence presented in State v. Richter.

B. Continuing the investigation of Xcentric and Magedson such as sending search warrants or subpoenas to their banks, email providers and other service providers.

C. Reading Xcentric’s privileged attorney-client communications.

D. Disclosing Xcentric’s attorney-client privileged communications to others.

E. Disclosing Xcentric’s financial and banking records to others.

F. Disclosing Magedson’s personal and private communications to others.

G. Disclosing any communications or information obtained through investigation of Xcentric or Magedson.

It would seem items C-F shouldn't need an injunction. These are things a prosecutor shouldn't be doing in the first place. Unfortunately, Smith's past actions prove he's severely in need of outside guidance. As for Xcentric, it may have a solid First Amendment claim, but its invocation of Section 230 protections is less sturdy than it would normally be, thanks to its for-pay relationship with a contributor.

Filed Under: ben smith, iowa county, meade, section 230, vindictive
Companies: ripoff report, xcentric

Barrett Brown Loses Email Access For A Year After Using Email To Complain About Prison

from the that's-ridiculous dept

Last week, whistleblower Chelsea Manning was able to start tweeting from prison, while at nearly the same time reporter Barrett Brown lost his email access for an entire year for daring to email a journalist about bad prison conditions. If you don't recall, Barrett Brown is the reporter who was recently sentenced to more than five years in jail for reporting on the hacking actions of Anonymous. Bizarrely, the length of the sentence hinged on Brown's sharing a link in a chat room, even though the Justice Department dropped that particular charge. We also found it ridiculous that during the course of his trial, Brown was ordered by the court not to talk to journalists.

It appears that, once again, that was a part of the problem here. The judicial and correctional systems apparently really don't like it when you talk to journalists:

An hour or so after having used the system to contact a journalist about potential BOP [Bureau of Prisons] wrongdoing, Barrett Brown’s access to the TRULINCS prisoner e-mail system was restricted, for a full year until April 2016, without explanation.

This is contrary to the BOP’s own policy on several points, as noted in their 2009 documentation — the administration is only allowed to remove access to TRULINCS for thirty days pending an investigation of any potential misuse, and the inmate is supposed to be informed in writing of the reason for that.

But despite all of that, prison officials don't seem to care. They made it clear they just wanted to shut up Brown:

Barrett spoke to a supervisor this morning who told him that he lost his e-mail access because he was “using it for the wrong thing”. This refers to his contacts with the press. A review of his e-mail activity had been made, Barrett was also told by this person that he “wasn’t supposed to have” e-mail, when there’s been no such order or determination that we’re aware of.

Apparently, Brown had been talking to Glenn Greenwald about writing some articles for The Intercept, and that's what set off the Bureau of Prisons into a full-fledged lockdown on Brown's email account. Brown himself was later able to provide more details, suggesting a completely arbitrary process by a prison official:

Failing to find Mr. Coleman, I met that afternoon with Unit Manger Ivory, who checked my files but could find no reason why my access should have suddenly been suspended and also advised me to meet with Mr. Coleman. At some point that day, my attempts to log in started to prompt a different message stating: “This account is on suspension until 4/1/2016 11:59:59 pm (from portal 16)”. At the next lunch period on Thursday, April 2nd, I was unable to locate Mr. Coleman, but laid out my problem to the associate warden who told me to return in five minutes, when Mr. Coleman would be present.

I did so, and when I asked another group of prison officials if they knew where I could find Mr. Coleman, another individual came up to me and said that he was the person I was looking for. He pulled me aside and told me that he was the one who had cut off my email, as I wasn’t supposed to have access to it in the first place due to my charges. I noted that I had three charges and asked which one precluded me from using the email service. He told me to list my charges and I did so. He then added that he had done a review of my email correspondence and found that I had “been using it for the wrong thing.” I replied that I had simply been using it to communicate with the press. He confirmed that “that was the wrong thing.” I asked him his name, which he gave as “Moore”.

Yes, when you go to prison, you have given up a lot of your rights and freedoms. But this seems like a purely arbitrary decision to punish Brown for criticizing the prison system. And, it appears to be backfiring, only driving that much more attention to the issue.

Filed Under: barrett brown, bureau of prisons, email, glenn greenwald, journalism, prison, vindictive

Journalists Attack Obama Administration For Being Ridiculously Secretive And Vindictive

from the most-transparent-administration-in-history dept

Earlier this year, then NY Times Executive Editor Jill Abramson called out the Obama administration for being the most secretive in history, despite the claims of Obama himself that his would be "the most transparent administration in history." Not only has this administration used the Espionage Act to go after whistleblowers more times than every other administration in history combined, it's currently fighting a legal battle to put NYT journalist Jim Risen in jail for refusing to reveal a source. It's also denied more FOIA requests than any other administration in history. The White House has ridiculously tried to defend its "most transparent in history" claims by pointing to the fact that unlike previous administrations, this one releases visitor logs. Whoop. De. Doo.

At a big journalism confab in Chicago, apparently anger about the administration's unprecedented level of secrecy boiled over as journalists vehemently criticized the lengths to which this administration will go to block journalists and to create significant chilling effects.

"The White House push to limit access and reduce transparency has essentially served as the secrecy road map for all kinds of organizations — from local and state governments to universities and even sporting events," Brian Carovillano, AP managing editor for U.S. news, said during a panel discussion.

Reporters noted that sources are now afraid to talk to them, given the crackdown on leaks -- though, again, it only happens on leaks the administration doesn't like. When the leaks make the White House look good, no investigations, hounding or prosecutions happen. However, if you leak something the administration doesn't like -- such as blowing the whistle on corrupt government practices, the administration has an official policy that you are "aiding the enemy."

And while some might claim (incorrectly, usually) that there's a legitimate argument there when it comes to leaks involving national security, the crackdown goes way beyond that:

The AP's Washington chief of bureau, Sally Buzbee, said the Obama administration's efforts to control information extend even to agencies not directly involved in intelligence gathering. Some sources, she said, have reportedly been warned they could be fired for even talking to a reporter.

"Day-to-day intimidation of sources is also extremely chilling," she said.

Buzbee said she's frequently asked if the Obama administration, when it comes to transparency, is worse than the administration of President George W. Bush.

"Bush was not fantastic," she said. She added, "The (Obama) administration is significantly worse than previous administrations."

We tend to agree that the following statement is a ridiculous one in most situations, but since government officials seem to use it all the time, it seems worth asking: if they've done nothing wrong, what do they have to hide?

Filed Under: chilling effects, journalism, obama administration, secrecy, sources, transparency, vindictive, whistleblowers

State Department Pulls Top Secret Security Clearance From Diplomat Who Linked To Publicly Available Info

from the head-in-the-sand dept

A few weeks ago, we wrote about the obviously vindictive investigation of long term State Department diplomat Peter Van Buren. Van Buren, who recently published a book that was critical of the US's efforts in Iraq (which he was a part of), wrote a blog post on his own website that merely linked to a leaked State Department cable on the Wikileaks site.

As we've noted many times, such info is clearly public now. But the US has a "head in the sand" approach to such things, and pretends that even though anyone with internet access can easily see this document, that it's still really "classified." So it began an "investigation" of Van Buren, which has now resulted in his top secret security clearance being yanked. And, demonstrating what a cowardly, childish and petty action this is, they didn't even fully revoke his clearance -- a move that could be appealed. Instead, they put it on an indefinite "temporary suspension," which can't be appealed.

So, uh, now what? It's not like he revealed anything that he got because of that clearance. He can still sift through the leaked Wikileaks documents like anyone else in the world and point stuff out. What good does the State Department think it has done here, other than making themselves look like completely vindictive idiots who take pointless actions against those who criticize them? This doesn't help protect classified info (at all). If anything, it draws a lot more attention as to what's in that document, and it makes our State Department look foolish. I want a State Department that deals in reality. Punishing someone for linking to public info is a move that is from an organization that lives in a fantasy world. That's scary.

Filed Under: peter van buren, secrecy, state department, vindictive, whistleblowing

State Department Vindictiveness: Using Single Blog Link To Wikileaks To Investigate Employee Who Published Critical Book

from the chilling-effects dept

We've discussed a few times just how ridiculous it is that the US government still pretends that the State Department cables available via Wikileaks are somehow classified and secret. It's a head-in-sand approach, in which government employees have to pretend that information, which the rest of the world knows about, isn't actually known. This makes no sense. In the business world, if you sign a non-disclosure agreement, and content becomes public through other means, you're free to talk about it. The way the government does it is crazy... and opens up the possibility of abuse, such as in the following case.

State Department employee Peter van Buren has written a book that apparently criticizes the US's efforts in Iraq entitled: We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. Not surprisingly, the State Department isn't happy about the book. While it did review the manuscript before it was published, it can't stop the publication.

So, instead, it appears to being coming up with other ways to be vindictive. Such as investigating him for "disclosing classified information." And, no, it's not because of info in the book, which was pre-vetted by the government. It's because he wrote a blog post, where he dares to link to a Wikileaks cable, which is public to the whole world.

But, in the vindictive little minds of folks in the State Department, since such info is still technically "classified," they can go after van Buren for "disclosing classified info." And, making it even better, the investigators who interrogated him over this told him that if he wrote about the interrogation, he could also be charged with "interfering with a government investigation." It makes you wonder if the people involved in this recognize how petty and childish they appear in their actions. No one who can think straight thinks that van Buren linking to a very public document reveals classified information -- and on top of that, speaking publicly about State Department bullying is not, in any way, interfering with a government investigation.

Tragically, this is not an isolated incident. Despite the President's insistence that he wants to see more whistleblowing, every time we see whistleblowing in the federal government it seems like it's followed up by vindictive attacks by the federal government.

Filed Under: peter van buren, secrecy, state department, vindictive, whistleblowing

Vague Law + Vindictive Law Enforcement? Hide Your Veggies!

from the this-is-not-how-things-are-supposed-to-work dept

You may have heard the recent story about Julie Bass, a woman in Oak Park, Michigan, who was facing 93 days in jail... for daring to plant a nice vegetable garden in her front yard. Apparently, the city has a rule that says you can have "decorative planting" in your front yard, but some city officials deemed that the vegetable garden was not decorative. The specific law, of course, is vague. It says: "all unpaved portions of the site shall be planted with grass or ground cover or shrubbery or other suitable live plant material." The problem is in the word "suitable." Many folks, including Bass, believe vegetables are suitable. The city disagrees, and was threatening her with 93 days in jail for not removing the garden.

On Friday, the charges were apparently dismissed. While most reports suggested that officials dropped the case, Bass's own blog claims that a judge dismissed them, though the details were hazy (at best). But, here's where it gets ridiculous. First, the dismissal was "without prejudice," so the charges can be brought again. But... even more crazy is that now the city is going after her for not having licenses for her two dogs, an issue that was brought up earlier, and which she quickly fixed.

As lots of people are saying, it appears that the city is just being vindictive to Bass.

This is why broadly worded laws scare me. This is why the broadly worded definition of what counts as an "infringing site" in PROTECT IP scares me. This is why the vagueness of S.978, the felony streaming bill, scares me. They can easily be abused to put people in jail just for embedding videos. What the Julie Bass story shows is that when law enforcement feels vindictive, there's no law they won't try to twist against people. And we shouldn't be handing law enforcement more ammo by giving them vaguely worded laws that potentially make huge segments of the population into felons.

Jail time for veggie gardens is nothing if they can put you away for embedding a video on your website.

Filed Under: dogs, law enforcement, veggie garden, vindictive