from the phew dept
A little over a year ago we wrote about a truly ridiculous lawsuit filed by the Democratic National Committee against the country of Russia, Wikileaks, the GRU, Julian Assange, the Donald Trump campaign, and a long list of Donald Trump associates, including Paul Manafort, Roger Stone, Jared Kushner, Donald Trump Jr. and more. As we discussed in great detail, this was a pro se-level lawsuit full of absolutely crazy legal theories that stood no chance in court, ostensibly over the hacking of the DNC's computers that occurred during the 2016 election. The complaint was mostly a conspiracy theory wrapped in a legal complaint, tossing in absolutely silly CFAA claims, SCA claims, DMCA claims and (because why not?) a RICO claim, despite the fact that it's never RICO.
We predicted that this lawsuit would go nowhere fast, and separately noted that many of the theories the DNC put into the lawsuit represented a very real threat to basic press freedoms. Thankfully, though not surprisingly, federal Judge John Koeltl, has dismissed the case. The order runs over 80 pages, but the judge does a nice job summarizing the many, many faults of the complaint upfront. Let's start with suing Russia. That's not how any of this works.
The primary wrongdoer in this alleged criminal enterprise
is undoubtably the Russian Federation, the first named defendant
in the case and the entity that surreptitiously and illegally
hacked into the computers and thereafter disseminated the
results of its theft. But, as explained below, under the
Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq. ("FISA"),
the Russian Federation cannot be sued in the courts of
the United States for governmental actions, subject to certain
limited exceptions not present in this case, just as the United
States government generally cannot be sued in courts abroad for
its actions. The remedies for hostile actions by foreign
governments are state actions, including sanctions imposed by
the executive and legislative branches of government.
I mean, this seems like basic lawyering 101. You can't just randomly sue foreign governments in the US for state actions. How about all those other defendants? Well, they're not the ones who did anything. And the things they did -- publishing or sharing documents -- is so obviously protected under the First Amendment:
The DNC seeks to hold the second-level participants in this
alleged activity -- the Campaign, the Campaign defendants,
WikiLeaks, Assange, the Agalarovs, Mifsud, and Stone -- liable
for dissemination of the stolen materials. But, as also
explained below, the First Amendment prevents such liability in
the same way it would preclude liability for press outlets that
publish materials of public interest despite defects in the way
the materials were obtained so long as the disseminator did not
participate in any wrongdoing in obtaining the materials in the
first place. The plausible allegations against the remaining
defendants are insufficient to hold them liable for the
illegality that occurred in obtaining the materials from the
DNC. Therefore, for the reasons explained below, the
defendants' motion to dismiss the Second Amended Complaint is
granted.
The judge did reject a request by the Trump Campaign for Rule 11 sanctions against the DNC's lawyers, and even if this was obviously a frivolous lawsuit, courts are very, very reluctant to ever issue Rule 11 sanctions unless the activity is incredibly egregious. This dumb lawsuit was just everyday egregious.
The judge here clearly understood all of the myriad problems with the lawsuit, and the long ruling is a masterclass in pointing out how each of the DNC's theories is crazy. Let's start with the First Amendment/freedom of the press issues. It seems clear that the court understood how dangerous this kind of precedent would be. The judge cites the key cases on this issue which are pretty damn well established: the NYTimes v. the United States, which decided that it was protected by the 1st Amendment for the Times to publish the Pentagon Papers, and the more recent Bartnicki v. Vopper, which made it clear that even illegally obtained materials can be released by journalists, so long as the journalists did not participate in the illegal activities to obtain the materials. As the court notes:
As Bartnicki makes clear, there is a significant legal
distinction between stealing documents and disclosing documents
that someone else had stolen previously.
The DNC tried to get around this by playing the "but RICO!" card, and arguing that there was a grand conspiracy at work, that magically meant that the Trump Campaign and all the associates did participate in the "stealing" of documents. The judge points out this is... not a sound legal theory.
However, the DNC has not alleged that any defendant other
than the Russian Federation participated in the hack of the
computers or theft of the DNC's documents. The DNC argues
that the various meetings and conversations between the
defendants in this case and with persons connected to the
Russian government during the time that Russian GRU agents were
stealing the information show that the defendants
conspired with the Russian Federation to steal and disseminate
the materials.... That argument is
entirely divorced from the facts actually alleged in the Second
Amended Complaint.
The judge further points out that just showing certain people met with one another or worked with one another doesn't automatically establish either a conspiracy or anything suggesting that they participated in the illegal obtaining of the DNC's content.
For example, the DNC argues in its opposition to the
current motions that the conspiracy between the Russian
Federation and the other defendants to hack the computers
and steal its electronic information began in March 2016.... However, the only events alleged to have
taken place in March 2016 are that Manafort was hired as the
Campaign's convention manager, Papadopoulos was hired as a
foreign policy advisor, and Papadopoulos met with Mifsud on
March 14 and 24. The entirety of the allegations
regarding the March meetings between Mifsud and Papadopoulos are
that "[o]n March 14, 2016, Mifsud met with Papadopoulos in
Italy," and "[o]n March 24, 2016, Mifsud met again with
Papadopoulos, this time bringing along a Russian national who
was introduced as a relative of Putin." ...
Papadoponlos reported back to the Campaign that "his
conversation was to arrange a meeting between us and the Russian
leadership to discuss U.S.-Russia ties under President Trump."
These vague references to
meetings between Papadopoulos, a foreign policy advisor to the
Campaign, and Mifsud, a London-based academic not officially
affiliated with the Russian Federation, do not raise a plausible
inference that the defendants agreed to participate with the
Russian Federation in hacking the computers and stealing
its documents.... To the contrary, Mifsud is alleged to have told Papadapoulos about emails
harmful to the Hillary Clinton
campaign only after the Russian Federation had hacked the DNC
and had those emails in its possession.
The section on Wikileaks shows just how awful the DNC's case really was -- as their own complaint undermined their own argument.
The DNC also repeatedly argues in its brief that WikiLeaks
participated in the theft of the DNC documents.... But in the
Second Amended Complaint the DNC alleges that WikiLeaks first
requested stolen DNC materials from Guccifer 2.0 only after the
Russian Federation had already stolen them and after Russian
agents began disseminating them through Guccifer 2.0.... The Second Amended Complaint does not allege that
WikiLeaks agreed to participate in the theft or that it had any
advance knowledge that the Russian Federation was planning to
hack the DNC.
The court also points out that the infamous "meeting at Trump Tower" that has been subject to much speculation, happened after the DNC hacking had already occurred, meaning that it couldn't possibly have been held to establish a conspiracy to hack the DNC (and, of course, the DNC has no evidence to suggest, and thus, no allegations, to say that there was any discussion at that meeting of hacking the DNC). In other areas the judge points out that allegations "are even more threadbare." As we said, this is a conspiracy theory disguised as a legal complaint.
In short, the DNC raises a number of connections and
communications between the defendants and with people loosely
connected to the Russian Federation, but at no point does the
DNC allege any facts in the Second Amended Complaint to show
that any of the defendants other than the Russian
Federation participated in the theft of the
information. Nor does the DNC allege that the defendants ever
agreed to help the Russian Federation steal the documents.
Indeed, the DNC does not raise a factual allegation that
suggests that any of the defendants were even aware that the
Russian Federation was planning to hack the DNC's computers
until after it had already done so. At most, the DNC has
alleged that after the Russian Federation stole the
documents, Mifsud and the Agalarovs told campaign members about
the stolen documents (although it is unclear whether the
communications were about stolen DNC documents or generally
about documents harmful to Hillary Clinton), WikiLeaks requested
the stolen documents and published them, and some of the other
defendants welcomed the publication of the documents at times
helpful to the Campaign.
And thus, the actions of the others in passing around or publishing those documents later is quite clearly protected under the 1st Amendment.
The judge does separately deal with the issue of Wikileaks. This was the one that most concerned press freedom advocates, and the judge clearly understands the issues:
The argument for liability is strongest against
WikiLeaks because it is the only defendant other than the
Russian Federation that is alleged to have published the
stolen information. The DNC alleges that WikiLeaks solicited
stolen documents from the GRU and then coordinated with the GRU
and the Campaign defendants to publish the stolen documents at
times helpful to the Trump Campaign. Like the defendant in
Bartnicki, WikiLeaks did not play any role in the theft of the
documents and it is undisputed that the stolen materials involve
matters of public concern. However, the DNC argues that this
case is distinguishable from Bartnicki because WikiLeaks
solicited the documents from the GRU knowing that they were
stolen and coordinated with the GRU and the Campaign to
disseminate the documents at times favorable to the Trump
Campaign. The DNC argues that WikiLeaks should be considered an
after-the-fact coconspirator for the theft based on its
coordination to obtain and distribute the stolen materials.
As an initial matter, it is constitutionally insignificant
that WikiLeaks knew the Russian Federation had stolen the
documents when it published them. Indeed, in Bartnicki the
Supreme Court noted that the radio host either did know, or at
least had reason to know, that the communication at issue was
unlawfully intercepted....
And, contrary to the argument, it is also irrelevant
that WikiLeaks solicited the stolen documents from Russian
agents. A person is entitled publish stolen documents that the
publisher requested from a source so long as the publisher did
not participate in the theft.... Indeed, the DNC acknowledges that this is a common
journalistic practice.
The argument that WikiLeaks can be held liable for
the theft as an after-the-fact coconspirator of the stolen
documents is also unpersuasive. That argument would eviscerate
Bartnicki; such a rule would render any journalist who publishes
an article based on stolen information a coconspirator in the
theft....
WikiLeaks and its amici argue that holding WikiLeaks liable
in this situation would also threaten freedom of the press. The
DNC responds that this case does not threaten freedom of the
press because WikiLeaks did not engage in normal journalistic
practices by, for example, "asking foreign intelligence services
to steal 'new material' from American targets." ... The argument misconstrues its
own allegations in the Second Amended Complaint. In the Second
Amended Complaint, the DNC states that "WikiLeaks sent GRU
operatives using the screenname Guccifer 2.0 a private message,
asking the operatives to "[s]end any new material [stolen from
the DNC] here for us to review.'" ... This was not a solicitation to steal documents
but a request for material that had been stolen. Journalists
are allowed to request documents that have been stolen and to
publish those documents....
Therefore, the DNC cannot hold WikiLeaks or Assange liable for
publishing the information that Russian agents stole.
The court then rejects the DNC's argument that "trade secrets" (by which it meant donor lists) are somehow excluded from Bartnicki, and therefore publishing them is not protected by the 1st Amendment. As the court explains, this is a pretty blatant misreading of Bartnicki, which acknowledged that there could be a different calculus when it involved things like trade secrets -- whereas the DNC pretended that Barnicki outright excluded them. Either way, the court says that in this case, the publishing of donor lists is obviously protected by the 1st Amendment:
In this case it is plain that the conclusory
allegations that "donor lists" and "fundraising strategies" were
among those documents published by WikiLeaks does not provide a
basis to overcome the First Amendment. The interest in
keeping "donor lists" and "fundraising strategies" secret is
dwarfed by the newsworthiness of the documents as whole....
If WikiLeaks could be held liable for publishing documents
concerning the political financial and voter-engagement
strategies simply because the DNC labels them "secret" and trade
secrets, then so could any newspaper or other media outlet. But
that would impermissibly elevate a purely private privacy
interest to override the First Amendment interest in the
publication of matters of the highest public concern. The
published internal communications allowed the American
electorate to look behind the curtain of one of the two major
political parties in the United States during a presidential
election. This type of information is plainly of the type
entitled to the strongest protection that the First Amendment
offers....
And, as basically anyone with a passing familiarity with how RICO works expected, the court also explicitly rejects the whole RICO nonsense:
The allegations
provide no basis to infer either that the alleged AIF members
formed an ongoing organization or that the defendants formed a
coherent entity that was separate and apart from the predicate
acts that allegedly comprise the alleged fraudulent scheme....
This is, in part, because the DNC alleges in conclusory
fashion that various individuals and entities have committed
acts to further the scheme despite not having any apparent
connection to most of the other defendants. The DNC asserts
only that there were scattered contacts between the alleged AIF
members and does not assert any facts suggesting hierarchy or
organization. For example, none of the asserted AIF members are
alleged to have participated in the theft of the documents
with the Russian Federation or to have even been aware that the
Russian Federation was planning such a theft. The Russian
Federation published at least some of the documents via Guccifer
2.0, and there is no allegation that any of the defendants
participated in that publication. WikiLeaks contacted the GRU
to obtain the stolen documents, but there is no indication that
any of the other asserted AIF members were aware of this
contact.
There's also this:
Moreover, the alleged common goal of the AIF enterprise
to get Donald Trump elected is not an unlawful or fraudulent
goal.
The final claims in the complaint are dismissed pretty quickly as well. Wiretapping? Wha...? For it to be wiretapping, it has to involve recording something as it happens ("intercepted contemporaneously with transmission") and that did not happen:
There is no allegation that any of the documents provided
to WikiLeaks contained communications that were intercepted
contemporaneously with transmission. The documents that the
Russian Federation disclosed to WikiLeaks are described as
reports and documents rather than items that would suggest
electronic communications that were recorded simultaneously with
their transmission.... In any event, there is no
allegation that WikiLeaks was aware that any documents it
published were intercepted contemporaneously with transmission.
The Defend Trade Secrets Act claim flops as well. The earlier discussion about publishing trade secrets being protected by the 1st Amendment mostly covers that, but the claim makes even less sense for the other defendants:
The DNC does not allege that any defendant other than the
Russian Federation and WikiLeaks possessed or published its
alleged trade secrets. However, the DNC argues that the
remaining defendants are still liable under the DCUTSA because
they "used" the documents after they had been published by
WikiLeaks and the Russian Federation. This argument is
untenable -- a "trade secret that becomes public knowledge is no
longer a trade secret."... That the
defendants might have used documents that had already been
published by the Russian Federation and WikiLeaks is not an
unlawful or improper use of the documents.
As for the computer hacking claims, again, only the Russians did that, and you can't bring them into a US court. The DNC tried to argue that there was "aiding and abetting" by the others, but (1) they then "failed to allege facts showing any defendant aided or abetted the hack into the DNC computer systems," and (2) it doesn't appear that the Virginia Computer Crimes Act (the local state version of the CFAA) even includes liability for aiding and abetting. But, hey, why would that stop the DNC?
The court doesn't even seem to bother with the rather insane copyright claim, which was based on DMCA 1201 -- the anti-circumvention part of the DMCA, in which the DNC argued that the DMCA 1201 acted as a sort of mini-CFAA, because any activity to get around "technical protection measures" is automatically infringing under 1201. But, that theory is so nuts it looks like the court just skipped right over it.
Again, none of this is surprising, but it's nice to see a clear and decisive ruling on this -- and one hopes the DNC and its lawyers just let this one go rather than trying to appeal (a wish that seems unlikely to be fulfilled). It's possible this case is more about politics than any legal theory (because there is no reasonable legal theory here), but if so that's even more abusive of the federal judicial system.
Filed Under: 1st amendment, conspiracy, donald trump, free speech, freedom of the press, hacking, jared kushner, julian assange, paul manafort, rico, russia
Companies: dnc, wikileaks
