How to Make Your Client Look Bad, in Three Easy Steps

Courtesy of counsel for Newt Gingrich and Saul Anuzis.

1.  Demonstrate a complete failure to understand how the relevant technology works.

The whole dustup started when a Twitter user going by the handle EFCANOW tweeted the following tweet:  "Join @newtgingrich @sanuzis in signing the EFCA Freedom Not Fear petition at http://action.americanright... WSJ." 

As most Twitter users know, use of the "@" symbol followed by someone's Twitter username is a means of directing a particular comment or reply to that user. This feature enables a Twitter user to draw third parties into the conversation. 

In a clear case of "be careful what you wish for," EFCANOW's tweet not only brought Gingrich and Anuzis into the conversation, but also raised the ire of the pair's lawyer. One week after the original tweet, the pair's lawyer fired off a cease and desist letter directed to the owner of the website linked to in EFCANOW's tweet, as well as Tucows, the registrar of the associated domain name.  In a sign of the, um, "creative lawyering" to come, the letter starts off by demanding the removal of the tweet, "which falsely purports to be written by our clients."  Technology 1, Lawyer 0.

2. Demonstrate a complete lack of knowledge regarding Section 230.  

In a move that was likely good for a few laughs around the Tucows legal department, the letter goes on to state that the continued display of the offending tweet "can expose any and all involved parties (including Twitter, and/or TuCows) to substantial ongoing, and even personal liability." Later, the letter increases the stakes even further, threatening liability against "each of you and/or other responsible decision-makers within your organization."

Remember, of course, that Tucows is the registrar for the domain name of the website to which the tweet linked, but does not itself host or otherwise disseminate the tweet itself. Even ignoring the oddity of directing the legal threat to Tucows (while also threatening Twitter, which is included as a cc: under Gingrich, Anuzis and two other lawyers), the letter completely ignores the safeharbor protection that would be available to Twitter (as well as Tucows, if it actually hosted the offending tweet) as an interactive computer service provider under Section 230 of the Communications Decency Act.*

3.  Throw in everything, including the kitchen sink.

So what claims is the intrepid attorney asserting against EPCANOW, Twitter, Tucows, your aunt, your cousin. . .? The list is long: trademark infringement, violation of Gingrich's and Anuzis' publicity rights, false advertising, false designation of origin, tortious interference with prospective economic advantage and contractual relations, common law and computer trespass (could Twitter trespass upon its own computer?), conversion, traditional fraud and wire fraud, breach of contract (i.e., Twitter's terms of service), violation of the Computer Fraud and Abuse Act, and even RICO violations. (Can we come up with a variation of Godwin's Law that applies to allegations of RICO violations?) In short, every cause of action that Gingrich's and Anuzis' lawyer vaguely remembers from first year Contracts and Property, with all of the computer-related causes of action he's ever heard about thrown in for good measure.

Not surprisingly, the Twitter community has taken this kerflufle as an opportunity to have a bit of fun at Gingrich's expense.  Since Doc and David are reportedly working on an updated version of The Cluetrain Manifesto, I'd like to add a couple of suggestions for the nation's politicians:

96.  When you decide to harness new social media platforms to distribute your message, first try to learn the technology and cultural mores of the community into which you are wading.  In short, show that you "get it."

97.  Hire lawyers that also "get it."

While it's all very well and good to indulge in a little schadenfreude at the expense of a McKenna Long & Aldridge partner (who can somewhat be forgiven for his lack of knowledge in the area, since he primarily practices "political law"), the easily dismissed allegations obscure the issue at the heart of the complaint:  What degree of clarity can we (and should we) expect from "gripe" tweets, given the 140 character limit that is hard coded into the medium? (Because, at bottom, EPCANOW's tweet was the Twitter equivalent of a gripe site.)

Although the EFF has helpfully created some guidelines to help gripe sites stay on the right side of any trademark infringement claim, advice like "[h]ave a prominent disclaimer that explains that your target is neither affiliated with nor endorses your site" is likely beyond the capabilities of even the most succinct Twitter user. Of course, there is certainly room for more clarity than ECPANOW's original tweet displayed. But this hasn't been the first, nor will it be the last, legal challenge that comes out of the increasing prominence of Twitter. Expect to see more lawyers and courts wrestle with the question of how to dispel consumer confusion in 140 characters.

* CLARIFICATION: As has been pointed out in the comments below, Section 230 does not preempt trademark (and other intellectual property) claims, but  would apply to many of the other "kitchen sink" claims discussed in point 3.  Of course, the other problem with any trademark claim is that Gingrich would have to show use in commerce, whereas EPCANOW's tweet would likely be considered to fall within the heart of protected, non-commercial speech under the First Amendment.

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