Text

Naffe v. Frey

Date: 

10/02/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Patrick Frey; Christi Frey; Steve Cooley; County of Los Angeles

Type of Party: 

Individual

Type of Party: 

Individual
Government

Court Type: 

Federal

Court Name: 

U.S. District Court for the Central District of California; U.S. Court of Appeals for the Ninth Circuit

Case Number: 

CV 12-8443-GW (District Court); No. 13-55666 (Court of Appeals)

Legal Counsel: 

Kenneth P. White; Paul B. Beach

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

Nadia Naffe accused a colleague of sexual assault and filed a criminal harassment complaint. John Patrick Frey, a Deputy District Attorney in Los Angeles County, raised questions about plaintiff's allegations on his blog and Twitter account which he maintained in his personal capacity. Naffe sued Frey, his wife, the former District Attorney for Los Angeles County and Los Angeles County under the theory that the defendant was acting in his official capacity as Deputy District Attorney while writing on his private blog, and that his actions violated her First Amendment and due process rights.

In a complaint filed in the U.S. District Court for the Central District of California, Naffe asserted the following causes of action:

1. violations of 42 U.S.C. § 1983
2. public disclosure invasion of privacy
3. false light invasion of privacy
4. defamation
5. intentional infliction of emotional distress
6. negligence
7. negligent supervision

Naffe subsequently filed a First Amended Complaint naming only Frey and the County as defendant. Frey moved to dismiss the First Amended Complaint, both for failure to state a claim (as to counts 1-6) and for a lack of subject matter jurisdiction over the state law claims (counts 2-7); the County filed its own motion to dismiss and also joined Frey's motions. Frey also filed a special motion to dismiss the state law claims under California's anti-SLAPP law. Naffe opposed all four motions.

In a tentative ruling (later confirmed), the district court found that it did not have independent subject matter jurisdiction over Naffe's state law claims because she had not sufficiently demonstrated a claim for relief exceeding the sum of $75,000. Accordingly, the court focused on whether Naffe had properly asserted a claim under 42 U.S.C. § 1983.

The court held that to state a claim under Section 1983, Naffe was required to allege facts sufficient to show that Frey's action related in some meaningful way either to his governmental status or to the performance of his duties, but found that Naffe had merely offered allegations that were conclusory or speculative. The court further held that merely "mentioning the fact that [Frey] [wa]s a deputy district attorney or prosecutor... does not transform everything he says on his blog or on Twitter into state action." Accordingly, the court dismissed Naffe's Section 1983 claim without leave to amend and dismissed her state law claims without prejudice. The court did not address the merits of Frey's anti-SLAPP motion.

Naffe appealed the ruling to the United States Court of Appeals for the Ninth Circuit. In her appellate brief, Naffe focused on a comment Frey had made on his twitter account, in which he states: "@NadiaNaffe My first task is learning what criminal statutes, if any, you have admitted violating." Naffe interprets this tweet to be a threat by a state prosecutor to investigate her for alleged criminal violations and offers it as evidence that her allegations are not merely speculative. Frey, in his appellee's brief, responded that such musings could not be deemed an official act, and that the factual context proves that the comment had nothing to do with anything over which a Los Angeles County Deputy District Attorney such as Frey could have jurisdiction.

The Digital Media Law Project ("DMLP") filed an amicus brief in support of Frey arguing that there are over 20 million Americans working for the government and that, even when those individuals speak on matters that relate to government activity, their ability to speak in their personal capacities must be preserved in order to ensure that these individuals' valuable viewpoints are part of public discussion.

Content Type: 

Jurisdiction: 

Subject Area: 

Yelp, Inc. v. Hadeed Carpet Cleaning, Inc.

Date: 

07/02/2012

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Yelp, Inc.

Type of Party: 

Organization

Type of Party: 

Organization

Court Type: 

State

Court Name: 

Circuit Court for the City of Alexandria

Case Number: 

Trial: 12003401; Appeal: 0116-13-4

Verdict or Settlement Amount: 

$1,500.00

Legal Counsel: 

Paul Alan Levy and Scott Michelman (Public Citizen Litigation Group), and Raymond D. Battocchi (Raymond D. Battocchi, P.C.)

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Concluded

Disposition: 

Subpoena Enforced

Description: 

On July 2, 2012, Hadeed Carpet Cleaning, Inc., a Virginia rug cleaning company, filed a complaint for defamation and conspiracy to defame against seven anonymous Yelp reviewers in the Circuit Court for the City of Alexandria.

Hadeed claimed these users' reviews were false and defamatory because it "had no record that the negative reviewers were ever Hadeed Carpet customers." Additionally, Hadeed noted that many of the negative reviews contained similar "themes" (for example, that Hadeed had doubled the price) and that one of the reviewers was from an area where Hadeed does not do business. Based on this evidence, Hadeed alleged that the authors of the negative reviews "acted together for the purpose of willfully and maliciously injuring Hadeed Carpet's reputation." Hadeed requested $1.1 million in punitive and compensatory damages, attorney's fees and costs, and a permanent injunction.

On July 3, 2012, Hadeed issued a subpoena duces tecum to Yelp seeking information identifying the anonymous commenters.

Yelp responded with a written objection to the subpoena on July 19, 2012. It contended: (1) that Hadeed had not complied with Virginia's procedure for subpoenas to identify anonymous Internet users, Code § 8.01-407.1, because it did not list the allegedly defamatory comments with adequate specificity; (2) that the First Amendment prevented disclosure of the defendants' identities because Hadeed had failed to present a prima facie case that their speech was defamatory; and (3) that the subpoena could not be enforced against a foreign non-party company.

On July 30, 2012, Hadeed filed a renewed subpoena that complied with the procedural requirements of Code § 8.01-407.1 by attaching documents allegedly establishing the basis for Hadeed's belief that the challenged posts were actionable. In its accompanying Notice of Filing Supporting Material, Hadeed asserted that "determining whether or not Defendants were customers of Hadeed is centrally necessary for Hadeed to advance any defamation claim."

Yelp filed written objections to the renewed subpoena on September 5, 2012. Yelp again asserted that Hadeed had failed to meet the appropriate legal test for obtaining identifying information about anonymous speakers because it had not "produce[d] evidence sufficient to make out a prima facie case" of defamation. Yelp noted that numerous appellate courts, most notably in Dendrite v. Doe and Doe v. Cahill, had held that that this was the proper test under the First Amendment, and argued that to the extent that Virginia had set a more permissive standard than Dendrite, Virginia should "join the national consensus standard on this issue." Yelp also asserted that it was not subject to personal jurisdiction in Virginia because it had no property there, and because Hadeed had consented to exclusive jurisdiction in California by agreeing to Yelp's terms of service when it chose to advertise on Yelp. Finally, Yelp argued that the subpoena was overbroad because Hadeed sought all documents Yelp possessed for the users that "relate[d] in any way" to Hadeed, which could encompass private communications subject to other legal protections or not reasonably accessible to Yelp.

On September 26, 2012, Hadeed moved to overrule the objections and enforce the subpoena. Hadeed argued that the proper legal standard for obtaining information about Yelp's anonymous users came from Virginia Code § 8.01-407.1 and was satisfied by its good faith claim that "it reviewed its own detailed customer files and c[ould] find no evidence that these specific seven persons were ever Hadeed customers." Hadeed also claimed that its attempts to obtain those identities through publicly available information or through discussions with Yelp had been unsuccessful. Hadeed also maintained that it had properly subpoenaed Yelp's records by serving the subpoena on Yelp's registered agent for service of process in Virginia, and argued that "Yelp conducts business over the internet in Virginia, and is present in Virginia through its registered agent." Further, Hadeed argued, it had not waived jurisdiction in Virgina, claiming that Yelp's terms of service only pertained to disputes arising out of the advertising relationship. Finally, Hadeed argued that the subpoena was not overbroad, as it only requested "postings" relating to Hadeed, not "communications," and Yelp's objection that the subpoena might encompass private communications was therefore unfounded.

On October 22, 2012, Yelp filed a memo in support of its objections to the subpoena and opposing Hadeed's motion to compel discovery. Yelp reiterated that the First Amendment "provides special protections for anonymity on the Internet," and argued that the court should apply the Dendrite test. The subpoena could not be enforced under this test, Yelp argued, because Hadeed had "failed to produce any evidence that any of the statements made about it are false." Yelp also continued to assert that it was not subject to jurisdiction. It argued that "predicating personal jurisdiction on the mere fact that Yelp enables its users to make statements accessible in Virginia through the Internet offends traditional principles of state sovereignty."

Hadeed responded to Yelp's objections on Oct. 31, 2012, reiterating its previous arguments.

The trial court held oral arguments on November 14, 2012, and enforced the subpoena on November 19, 2012. According to the court, it had jurisdiction over the motion based on service of the subpoena on Yelp's registered agent. The court added, however, that "even if a registered agent alone was an insufficient basis for jurisdiction," the court had jurisdiction "in light of Yelp's conduct directing electronic activity in Virginia and business relationships with Virginia companies and residents." The advertising agreement between the parties, the court held, did not deprive the court of jurisdiction, because the motion to compel was not a dispute between Hadeed and Yelp but rather a dispute between Hadeed and the anonymous reviewers, parties not governed by the agreement.

Finally, the trial court held that the proper standard for compelling the identity of anonymous speakers was laid out in Virginia Code § 8.01-407.1, which requires a showing that the statements "may be tortious" and that the speaker's identity is "important" or "relates to a core claim." Hadeed had met the statutory standard, the court held, because "the statements [we]re tortious if not made by customers" and "the identity of the communicators [w]as essential to maintain a suit for defamation." The court found no constitutional problem with this result. Although the court "recognize[d] that anonymous speech and even false speech is entitled to protection under the First Amendment," it stated that such speech is "not entitled to the same level of protection as truthful or political speech." Without citing Dendrite or Cahill, the court therefore ordered Yelp to produce information identifying the anonymous speakers.

Yelp refused to enforce the subpoena and, on January 9, 2013, the court held Yelp in contempt and imposed a $500 fine and $1000 in attorney fees. The sanctions were stayed pending appeal.

Yelp appealed to the Court of Appeals of Virginia and filed its opening brief on May 7, 2013. Yelp argued that the circuit court violated the First Amendment by ordering Yelp to identify the defendants, because Hadeed should have been required to do more than articulate a good faith belief that the speech "may be tortious." Indeed, Yelp asserted, the constitution requires "a factual showing, . . . that the statements are actionable and that there is an evidentiary basis for the prima facie elements of the claim." Yelp also argued that the court erred in concluding that the speech at issue did not warrant First Amendment protection because it was defamatory, because that argument begged the question by relying on the defamatory nature of the speech to compel evidence to prove its defamatory nature. Yelp also pointed to the constitutional requirement of proof of fault in defamation cases.

Yelp next argued that, even if Hadeed had made a sufficient showing that the reviewers were not Hadeed customers, the statements were not actionable. The parts of the reviews that Hadeed alleged were false -- the identities of the reviewers -- were not the parts of the reviews that could negatively impact Hadeed's reputation. Under Fourth Circuit precedent, Yelp claimed, "the falsity of a statement and the defamatory ‘sting' of the publication must coincide" for a statement to constitute defamation. And in this case, "Hadeed never allege[d] that the substantive problems set forth in the reviews, such as charging twice the advertised price, [we]re themselves false." Additionally, Yelp argued that Hadeed was libel-proof and could not sue for defamation because, in light of the large number of negative Yelp reviews of Hadeed that were not included in the lawsuit, a few more negative comments "would [not] cause Hadeed any incremental harm."

Yelp finally argued that, if the statements could be actionable, Hadeed had not presented a sufficient factual basis for the subpoena. When a party is "seeking discovery of information protected by the First Amendment," Yelp claimed, it should be required to show that "there is reason to believe that the information sought will, in fact, help its case." Hadeed had failed to make this showing, Yelp stated.

On May 8, 2013, the Reporters Committee for Freedom of the Press, the American Society of News Editors, Gannett Co., and The Washington Post filed a brief in support of Yelp. They argued that: the court should recognize "a heightened standard for compelled disclosure of identities" consistent with a consensus that has developed in the courts; allowing plaintiffs to compel the identity of authors "of any speech that ‘may be tortious' simply based on an unsupported allegation is inconsistent with the First Amendment"; and a "heightened standard is important to news organizations and other Internet publishers in creating a meaningful exchange of ideas on their web sites."

Hadeed filed its appellee's brief on May 30, 2013, arguing that the Virginia statute "clearly meets the minimal constitutional protections required under the First Amendment." But even if the Dendrite test were constitutionally required, Hadeed contended that the test had been satisfied because its complaint had "provided the actual statements, and if the posters are not customers, their statements are defamatory per se." Even under Dendrite, Hadeed argued, it was not required to present "all evidence necessary to survive a tough cross examination, summary judgment, or even . . . a jury verdict." Hadeed claimed it could not present more detailed information rebutting the Yelp reviews because it "serves 35,000 customers per year and its staff encounters all variety of circumstances," and the experiences of its thousands of other customers would not be relevant to "whether one specific person was defrauded through a bait and switch." Hadeed also contested Yelp's argument that it was libel proof, arguing that the many other negative Yelp reviews were not reliable.

Yelp filed a reply brief on June 27, 2013. It asserted that "even apart from the fact that a state statute cannot overrule the requirements of the First Amendment, there is no inconsistency between section 8.01-407.1 and the Dendrite-Cahill line of cases." Under the statute, Yelp claimed, it "is not enough for the plaintiff to show good faith; it must have a ‘legitimate' basis for claiming that the speech was tortious." Yelp argued that Hadeed had "alleged defamation, but ha[d] of yet proved nothing," and pointed out that Hadeed had not filed an affidavit from any employee actually denying that Hadeed engaged in the misconduct alleged in the Yelp reviews.

The Court of Appeals of Virginia, by a vote of two to one, affirmed the trial court's decision on January 7, 2014.

First, the court stated that although anonymous speech is protected by the First Amendment, "defamatory speech is not entitled to constitutional protection." Therefore, the court stated, "if the reviews are unlawful in that they are defamatory, then the [reviewers'] veil of anonymity may be pierced." Further, the court found that the speech at issue was commercial speech, as it was "expression related solely to the economic interests of the speaker and its audience." Because courts have recognized a lower level of First Amendment protection for commercial speech," the court held that the anonymous reviewers' "right to anonymity is subject to a substantial governmental interest in disclosure." In contrast, the court stated, a "business's reputation is a precious commodity."

The court also rejected the argument that the reviews were non-actionable opinion. "Generally," the court stated, "a Yelp review is entitled to First Amendment protection because it is a person's opinion." However, the court explained, this protection "relies upon an underlying assumption of fact: that the reviewer was a customer of the specific company and he posted his review based on his personal experience with the business. If this underlying assumption of fact proves false, . . . then the review is not an opinion; instead, the review is based on a false statement of fact."

The court next turned to Virginia law. It held that Virginia Code § 8.01-407.1 provided the proper test for uncovering the identity of an anonymous Internet communicator. The court noted that it was "reluctant to declare legislative acts unconstitutional" and ultimately refused to do so, because there was no constitutional infirmity that was "clear, palpable, and practically free from doubt." The court also refused to "adopt persuasive authority from other states," including Dendrite and Cahill, noting that the Virginia legislature had considered that authority and ultimately made its own policy decisions.

In applying the Virginia statute, the court held that Hadeed presented sufficient evidence to show that the reviews were or may have been defamatory by "indicating that it made a thorough review of its customer database" and could not match the defendants' reviews with customers. Further, the court believed that Hadeed acted on a "legitimate, good faith belief that the Doe defendants were not former customers," and "took reasonable efforts to identify the anonymous communicators." Finally, according to the court, the reviewers' identities were "not only important," but "necessary" because "without the identity of the Doe defendants, Hadeed cannot move forward with its defamation lawsuit."

The court also concluded that the trial court properly exercised subpoena jurisdiction over Yelp because Virginia statutes "explicitly allow for service on a registered agent of a foreign corporation that is authorized to do business in the Commonwealth."

Senior Judge James Haley dissented. Judge Haley agreed that Virginia Code § 8.01-407 provided the proper framework for analysis, and stated that correct analysis under the statutory framework properly "balances the First Amendment protection of an anonymous speaker and the right of redress for defamation." However, he concluded that, in this case, "the balance envisioned by [the statute] should weigh for the protection afforded by" the U.S. and Virginia constitutions. Judge Haley noted that Hadeed had not "claimed that any of the substantive statements [we]re false," and, at oral argument, "candidly admitted that it [could] not say the John Doe defendants are not customers." By arguing that the reviewers "may not have been customers, and, if they were not, the substantive statements may be tortious," Hadeed failed to provide sufficient supporting material to justify the subpoena, he asserted. Instead, Judge Haley said, Hadeed's claim was merely "a self-serving argument -- one that proceed[ed] from a premise the argument [wa]s supposed to prove."

Content Type: 

Jurisdiction: 

Subject Area: 

United States v. Brown

Threat Type: 

Criminal Charge

Date: 

09/12/2012

Party Receiving Legal Threat: 

Barrett Brown

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of Texas: Dallas Division

Case Number: 

3:12-cr-00317-L; 3:12-CR-413-L; 3:13-CR-030-L

Legal Counsel: 

Douglas A Morris (Federal Public Defender - Dallas); Ahmed Ghappour (University of Texas Law School), Charles D. Swift (Swift & McDonald, PC), Marlo P Cadeddu (Law Office of Marlo P Cadeddu)

Publication Medium: 

Forum
Social Network

Relevant Documents: 

Status: 

Pending

Description: 

The U.S. government filed three indictments, consisting of seventeen charges, against Barrett Brown, an independent journalist. The charges arose out of Brown's online publication of a link to data obtained by hacktivist collective Anonymous and his alleged subsequent conduct.

Anonymous hacked Stratfor, a global intelligence firm, in December 2011, obtaining millions of e-mails, some of which included credit card and personal identity data. WikiLeaks published a large collection of these emails in February 2012, and Brown linked to a zip file of the leaked data on his IRC (Internet Relay Chat) channel, #ProjectPM. In response to these events, in March and September 2012, the FBI raided Brown and his mother's residences. Brown responded with YouTube videos, including one entitled "Why I'm Going to Destory FBI Agent [RS]," and similar commentary on Twitter. 

The federal government filed a complaint against Brown in the U.S. District Court for the Northern District of Texas on September 12, 2012. According to the docket, the complaint alleged that Brown "knowingly counseled, commanded, and induced other individuals to make restricted personal information about a Special Agent (SA) of the Federal Bureau of Investigation (FBI) publically available with the intent to threaten, intimidate, and incite the commission of a crime of violence against that SA, in violation of 18 U.S.C. §§ 2 and 119." (The full text of this complaint is not available.) The first indictment included counts related to Brown's responses to the FBI raids on his social media accounts (on Twitter and YouTube), which the government alleged to be threatening the FBI Agent and exposing private information. Specifically, the three counts were: Internet threats under 18 U.S.C. § 875(c); conspiracy to make publically available restricted personal information of an employee of the United States under 18 U.S.C. § 371; and retaliation against a federal law enforcement officer under 18 U.S.C. §§ 115(a)(1)(B) and (b)(4). Brown pled not guilty to all three counts on November 15, 2012. 

The government filed a second indictment, case number 3:12-cr-00413-B, on December 4, 2012, arising out of the hyperlink to the leaked Stratfor data that Brown posted on his IRC channel. The government asserted that sharing this link constituted a transfer the credit card account information contained therein; accordingly, Brown was charged with: traffic in stolen authentication features under 18 U.S.C. §§ 1028(a)(2), (b)(1)(B), and (c)(3)(A); access device fraud under 18 U.S.C. §§ 1029(a)(3) and (c)(1)(A)(i); and ten counts of aggravated identity theft under 18 U.S.C. § 1028A(a)(1). On December 17, 2012, Brown made a plea of not guilty to all of these charges. This second indictment was replaced by a superseding indictment on July 2, 2013, which made no substantive changes to the charges. 

During the 2012 FBI raids, Brown denied the presence of any laptops at his or his mother's residences, though two were later found. For this, he was charged with obstruction of justice in a third indictment on January 23, 2013 (case number 3:13-cr-00030-B). The indictment included two counts: concealment of evidence under 18 U.S.C. § 1519; and corruptly concealing evidence under 18 U.S.C. § 1512(c)(1). According to the case docket, Brown entered a not guilty plea on January 30, 2013. 

On January 30, 2013, the court held a hearing to determine Brown's competency to stand trial in his criminal cases, focusing on his mental health. In an order filed February 4, 2013, the court declared Brown competent to stand trial in all three pending cases.

On August 7, 2013, in the course of opposing a motion by Brown for a continuance of his trial date, the government asserted that Brown had repeatedly solicited "the services of the media or media-types to discuss his cases," and thereby demonstrated an "intent to continue to manipulate the public through press and social media comments, in defiance of the admonishment by the United States Magistrate Judge." Asserting that such "extrajudicial commentary" would undermine a fair trial, the government asked the court "to instruct the parties to refrain from making "any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record."

Brown opposed the government's request for a gag order in pleadings filed on August 9 and September 4, 2013, arguing that the government had not established a need for a gag order or that less restrictive measures were not available to responf to pretrial publicity. The defense pointed out that since appointment of counsel on his behalf, Brown had made no statements to the press, his counsel had made no statements except with respect to matters in the public record, and any statements made by associates of Brown could not be attributed to Brown himself. The defense further argued that cases supporting gag orders required evidence of statements by the defendant, and not merely a claim that the defense had condoned or attempted to coordinate media coverage. The defense also objected to the government's attempt to rely, as a basis for a gag order, on Brown's own journalistic work product unrelated to the pending charges against him. 

On September 4, 2013, the court entered an "Agreed Order Re: Extrajudicial Statements" signed by the judge and by counsel for Brown and the government. The order prohibits Brown and all attorneys for the government and the defense from making

any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record, that could interfere witha fair trial or otherwise prejudice Defendant, the Government, or the administration of justice, except that counsel for the Defendant may consult with Mr. Kevin Gallagher regarding the finances needed for Mr. Barrett Brown's defense.

The parties are further prohibited by the order from avoiding its effect through indirect, but deliberate, means. The order states that Brown is permitted continue to make statements and publish on topics not related to the counts on which he was indicted.

Two trials are set in the case. The first trial, relating to the threats allegedly made by Brown, is set to begin on April 28, 2014. The second trial, relating to the charges regarding hyperlinking to stolen data and obstruction of justice, was set to begin on May 19, 2014; however, on March 5, 2014, the Department of Justice voluntarily moved to dismiss the hyperlinking charges.  It is not clear whether this will affect the schedule of the second trial.

Content Type: 

Subject Area: 

Jurisdiction: 

Massachusetts Bay Transportation Authority v. Anderson

Date: 

08/08/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Zack Anderson; RJ Ryan; Alessanro Chiesa; the Massachusetts Institute of Technology

Type of Party: 

Large Organization

Type of Party: 

Individual
School

Court Type: 

Federal

Court Name: 

United States District Court for the District of Massachusetts

Case Number: 

08-cv-11364

Legal Counsel: 

Cindy Cohn, Jennifer Granick, Marcia Hoffman, and Emily Berger, Electronic Frontier Foundation (for MIT undergraduate defendants); Lawrence K. Kolodney and Adam J. Kessel, Fish & Richardson P.C. (for MIT undergraduate defendats); John Reinstein (for

Publication Medium: 

Forum
Print
Website
Other

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Denied
Withdrawn

Description: 

According to the complaint, Zack Anderson, RJ Ryan, and Alessandro Chiesa were undergraduate students at the Massachusetts Institute of Technology (MIT). The students claimed to have discovered a vulnerability in the "CharlieCard" and "CharlieTicket" automated fare collection systems used by the Massachusetts Bay Transportation Authority (MBTA) for Boston area public transit. The students planned to share their research at the DEFCON computer security conference on August 10, 2008. Their description of the presentation, as quoted in the complaint, was as follows:

Want free subway rides for life? In this talk we go over weaknesses in common subway fare collection systems. We focus on the Boston T subway, and show how we reverse engineered the data on magstripe card [sic], we present several attacks to completely break the CharlieCard, a MIFARE Classic smartcard used in many subway systems around the world, and we discuss physical security problems. We will discuss practical brute force attacks using FPGAs and how to use software-radio to read RFID cards. We go over social engineering attacks we executed on employees, and we present a novel new method of hacking WiFi: WARCARTING. We will release several open source tools we wrote to perform these attacks. With live demos, we will demonstrate how we broke these systems.

When the MBTA learned of their planned presentation, they arranged a meeting with the MIT students and MIT Professor Ronald Rivest, who specializes in network security. According to the court records, the students met with the MBTA on August 5, but refused to provide the MBTA with materials they planned to present, and instead agreed to provide a three-page summary of the vulnerabilities they found. The students also modified their event description to remove the reference to "free subway rides for life," and made other small alterations to the event description.

On August 8, 2008 the MBTA filed a complaint and motion for a temporary restraining order against the students and MIT. The complaint alleged that the students committed a violation of the Computer Fraud and Abuse Act (CFAA) by transmitting information that caused damage to computers. The complaint also alleged that the students committed the common law torts of conversion and trespass to chattels by intercepting MBTA rider fares, that MIT negligently supervised the students by failing to instruct the students to "responsibly disclose information concerning perceived security flaws," and that all four defendants committed a violation of Massachusetts's unfair and deceptive trade practices statute, M.G.L. Ch. 93A § 11.

The complaint sought an order preventing the students from "offering to provide software tools or demonstrations to allow others to duplicate the attacks referenced," from "providing information or materials that would assist another in any material way to circumvent the security of the" CharlieCard system, from "publicly stating or indicating that the security or integrity" of the system "has been compromised," from "further circulating" the conference panel announcement, from suggesting that "MIT endorses or approves of the activities" described, and from "declining to provide the MBTA and its vendors with information sufficient to replicate, test, and repair the purported security flaws."

On Saturday, August 9, 2008, U.S. District Court Judge Douglas Woodlock (acting as duty judge covering court matters over the weekend) issued a temporary restraining order forbidding the students from "providing program, information, software code, or command that would assist another in a material way to circumvent or otherwise attack the security of" the MBTA fare system. Per the Federal Rules of Civil Procedure in effect at that time, the injunction was scheduled to last for ten days. At oral argument, Judge Woodlock stated that the planned DEFCON presentation would constitute"transmission" of a program, and that the possible harm to MBTA fare collection constituted "damage," for CFAA purposes. The court also indicated that if someone were to use this information to evade fare collection the students would be aiders and abettors of that crime.

The court noted a possible First Amendment issue with the order, but stated "there's a balance that has to be drawn at various points," and that "we can't expect people in their early 20s to have sufficient judgment or experience to avoid causing those clashes of interest between something as broad and as important as the First Amendment and the need to avoid actual criminal conduct of which words are the constituent elements." The students argued that they had met with the MBTA and provided a report addressing their discovered vulnerabilities and what they planned to present at DEFCON, but the court found that insufficient to remove the risk of irreparable harm.

On August 11, the MBTA filed a motion to modify the terms of the restraining order, to clarify that the injunction only applies to "non-public" information related to the fare collection system. On August 12, the students responded, opposing the modification of the order and moving to have the court reconsider the restraining order altogether. The students argued that the order was an unconstitutional prior restraint on speech, as it prohibited the students' speech without a showing of an intent to induce any unlawful activity, or any other state interest of the highest order. The students further argued that the MBTA failed to show a likelihood of success on the merits of their CFAA claim, as the legislative history and statutory interpretation of the relevant section of the CFAA suggested that it applied only when a person actually transmits code to a protected computer, and not one's mere description of vulnerabilities. The students also noted that the MBTA's disclosure of the students' presentation slides in a public filing in the current action undermined their claim that an injunction was necessary.

On August 14, 2008, the MBTA responded to the students' motion. The MBTA argued that while some of the material related to their fare system was now public in light of the disclosure of the DEFCON slides, there remained non-public information that the students might share, including the source code of the program they used to read and alter the fare cards. The MBTA further argued that the CFAA's language extends to transmitting damaging "information," and not just software, and that the students' planned speech would advocate violation of the law, and would thus be unprotected by the First Amendment under Brandenburg v. Ohio. Finally, the MBTA argued that the presentation was not "research," but was instead commercial speech, and that the students failed to follow industry standards for responsible disclosure of a data breach. 

In a reply filed on August 18, the students argued that the factual record contradicted the claim that the students planned to share anything beyond what was already in the public docket of this court case. The students further argued that the MBTA failed the basic standard for injunctive relief as there was no immediate risk of harm. They also argued that adherence to industry standards for responsible disclosure was not required by law and, if compelled, would lead to censorship of important public information. (To support this, the students also provided a letter from eleven computer science professors and computer scientists discussing responsible disclosure.) The reply also argued that the students were discussing matters of policy and not engaging in commercial speech, as evidenced by the use of the student's research in numerous news articles addressing the data security of the CharlieCard system.

On August 14, Judge George O'Toole, the assigned judge for the case, held a hearing to determine whether the temporary restraining order should remain in effect for the full ten days that it was issued.  Judge O'Toole allowed the restraining order to remain in place, and granted the MBTA's motion for limited discovery against the students in preparation of the MBTA's motion to convert the restraining order into a preliminary injunction. The court allowed the MBTA to obtain: written correspondence, as well as "permissions, waivers, and other agreements" between the students and the DEFCON organizers; a copy of a MIT class paper that the students wrote, which served the basis of the presentation; copies of all software tools the students intended to distribute as part of the DEFCON presentation; and copies of any other materials the students planned to distribute.

On August 17, 2008, the students filed a motion for reconsideration of the court's discovery order as it applied to the the class paper and planned presentation software and materials. The students argued that such material is exempt from disclosure under the First Circuit's decision in Cusumano v. Microsoft, which protects certain academic sources and work product from disclosure. The students argued that the MBTA, a governmental agency, was seeking impermissible pre-publication review of academic work product.

On August 18, the MBTA filed a motion for a preliminary injunction. In its supporting memorandum, in addition to the arguments made previously, the MBTA argued that there remained information that the students had yet to disclose to the MBTA and the court about their planned presentation, including the software they planned to share. The MBTA also included a declaration from Systems Project Manager Scott Henderson, who stated that some of the cards used in the presentation had been used on the MBTA system illegally, based on the MBTA's own audit. The MBTA sought an injunction against the dissemination of this information for five months, in order to give them time to implement security upgrades to the system.

At a hearing on August 19, 2008 the court denied the preliminary injunction and dissolved the temporary restraining order. The court found that the MBTA had failed to show a likelihood of success on the merits of their CFAA claim, indicating that discussion of security topics is not likely to be not be "transmission" of code, commands, or information under the CFAA, as the statute's terms suggest that such transmission would need to be technical instead of informational in order for the statute to apply. The court also raised doubts as to whether the required $5000 of loss under the CFAA had be sufficiently demonstrated, finding the possible loss of future MBTA revenue as "a matter of possibility but [not] sufficiently established to support the injunction requested." The court noted that it was "mak[ing] that point in the first instance without reference to the First Amendment, what it may or may not guarantee under these circumstances," but also noted the valid public interest in such disclosures and discussions.

On October 7, 2008, the MBTA and student defendants filed a stipulation of dismissal, dismissing the claims against the students with prejudice and without costs. On December 22, 2008 the Electronic Frontier Foundation released a statement indicating that the MBTA and MIT students are now working together to improve the data security of the MBTA system. The claims against MIT were dismissed on February 3, 2009.

Content Type: 

Subject Area: 

CMLP Notes: 

Created by AFS

Jurisdiction: 

Boston Police Charge Two Journalists With Felonies For Doing Their Jobs

This is a well-known story to DMLP readers, but it bears repeating today. On October 1, 2007, a lawyer named Simon Glik saw members of the Boston Police arresting a suspect on the Boston Common in a way that he thought was excessive, and began recording the police from several feet away. The police didn't notice him at first, but eventually approached him and asked him if his phone was recording audio along with the video.

Jurisdiction: 

Subject Area: 

Content Type: 

So Close, Yet So Far: FBI Access to Silk Road Bitcoin Fortune May be Blocked by the Fifth Amendment

bitcoinThe government's quest for a password-protected bitcoin fortune from the Silk Road shutdown may lead to a Fifth Amendment battle over whether a constitutional right against self-incrimination can protect the website's founder from compulsion of data.

Jurisdiction: 

Subject Area: 

Content Type: 

The Government Responds to the DMLP Amicus Brief in United States v. Auernheimer

On Friday, the Department of Justice filed its appellee brief before the U.S. Court of Appeals for the Third Circuit in United States v. Auernheimer.

Jurisdiction: 

Subject Area: 

Content Type: 

Instagram: Uncharted Territory for Courts and Journalists

As a Los Angeles Superior Court prepares to break new ground concerning defamation on Instagram, journalists look towards the popular smart phone app as an alternative platform from which they can reach new audiences.

Jurisdiction: 

Subject Area: 

Content Type: 

McGibney v. Moore

Date: 

08/20/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Hunter Moore

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

District Court of Clark County, Nevada

Case Number: 

A-12-667156-C

Verdict or Settlement Amount: 

$263,170.00

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Default Judgment

Description: 

The defendant, Hunter Moore, founded a now-defunct website at the URL IsAnyoneUp.com, which hosted sexually explicit user-submitted photos and videos. The plaintiff, James McGibney, owns a website called BullyVille, which works to counsel people who have been bullied by offering advice from professionals. McGibney bought the domain name for IsAnyoneUp.com from Moore on April 19, 2012. After the purchase, Moore referenced McGibney in tweets sent from his twitter handles @huntermoore and @is_anyone_up.

On August 20, 2012, McGibney filed a complaint against Moore in the District Court of Clark County, Nevada for defamation per se and false light. McGibney's complaint denied assertions made in Moore's tweets. McGibney claimed that Moore's tweets suggested that McGibney was a pedophile, a child abuser, and that McGibney possessed illegal content obtained from IsAnyoneUp.com. (Moore's full tweets can be viewed as exhibits to the complaint.)

On the defamation claim, the complaint alleged that Moore posted the statements intentionally, with the specific malicious intent to harm McGibney's reputation, and with actual malice, as Moore knew the statements were false at the time he tweeted them or else had reckless disregard for the truth. The complaint asserted damages relating to McGibney's business, as Moore's tweets referenced McGibney's connection to BullyVille.

On the false light claim, the complaint stated that Moore portrayed McGibney as a pedophile and child abuser on Moore's twitter account. The complaint said Moore's statements were categorically false, made with actual malice, and highly offensive to any reasonable person. It alleged that, by publishing the "false and harmful statements" to a Twitter following of over 160,000 people, Moore gave publicity to such statements.

The complaint requested: (1) more than $10,000 on the defamation claim for harm to McGibney's reputation; (2) more than $10,000 on the false light claim for resulting mental harm; (3) more than $10,000 for Moore's willful, deliberate, and malicious defamation of McGibney; (4) attorney's fees and related costs; and (5) any additional relief ordered by the Court.

On February 26, 2013, the plaintiff filed affidavits for Colleen Connolly-Ahern and Steven Rohr in support of an application for a default judgment against Moore. Connolly-Ahern, an Associate Professor of Advertising and Public Relations at the Pennsylvania State University, evaluated the McGibney's defamation claim against Moore. Her affidavit stated that because of Moore's "quasi-celebrity status" he will have a "larger-than-normal percentage" of followers who believe his statements about McGibney are truthful. Rohr, a founder and president of a Public Relations organization, confirmed the statements made in Connolly-Ahern's affidavit and added that with the existence of sites like www.archive.org, an Internet Archive, Moore's allegations may follow McGibney for years to come and damage his professional reputation. Rohr also stated that Moore's tweets caused real and tangible "lifetime reputational harm" to McGibney, which justified a judgment of $250,000.

The next day, on February 27, 2013, the plaintiff filed an affidavit of J. Malcolm DeVoy, one of the plaintiff's attorneys. DeVoy's affidavit included a copy of McGibney's redacted billings totaling $8,003.00.

On March 8, 2013, the court entered a default judgment against Moore for defamation and false light. The court held that Moore falsely accused McGibney of serious crimes and offenses that were defamatory per se. The court stated that Moore had been properly served with process and Moore had acknowledged the service on his tweets. The court referenced the affidavits of both Connolly-Ahern and Rohr and specifically addressed Rohr's mention of a $250,000 judgment, stating that the affidavits and Rohr's oral testimony were sufficient to support a judgment of $250,000 against Moore. Accordingly, the court ordered that Moore pay: (1) $250,000 in damages; (2) Interest accruing at 3.25%/month until the judgment is paid in full; (3) $1,588.50 for suit costs; and (4) $11,581.00 in attorney's fees.

On March 12, 2013, a notice of entry of default judgment was filed and on April 19, 2013, a writ of execution was issued to the Constable of Clark County, Nevada for $263,169.50 against Moore, commanding that the judgment be satisfied via Moore's Bank of America checking, savings, or other financial account.

Content Type: 

Jurisdiction: 

Subject Area: 

In re Search of Email Account [Redacted]@gmail.com

Date: 

05/28/2010

Threat Type: 

Criminal Investigation

Party Receiving Legal Threat: 

James Rosen (holder of email account [redacted]@gmail.com on computer servers operated by Google, Inc., headquartered at 1600 Amphitheatre Parkway, Mountain View, CA)

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Columbia

Case Number: 

10-291-M-01

Publication Medium: 

Website

Relevant Documents: 

Description: 

James Rosen is a national news journalist for the Fox News Channel. On June 11, 2009, Rosen published an article on www.foxnews.com entitled "North Korea Intends to Match U.N. Resolution with New Nuclear Test." His Gmail email account is referenced in the case's court documents as "Redacted@gmail.com."

On May 28, 2010, Reginald B. Reyes, a Special Agent for the FBI filed an application for a search warrant for James Rosen's Gmail account, which was maintained by servers located at Google's headquarters in California. The search warrant application stated that the emails concealed information which, under Fed. R. Crim. P. 41(c), contained: (1) evidence of a crime; (2) contraband, fruits of crime, or other items illegally possessed; and (3) property designed for use, intended for use, or used in committing a crime. The warrant application stated that the search was related to a violation of 18 U.S.C. § 793, which governs the "gathering, transmitting or losing defense information."

The search warrant application included an affidavit by Agent Reyes in support of the search warrant. Reyes' affidavit said the warrant was pursuant to 18 U.S.C. § 2703 and 42 U.S.C. § 2000aa and permissible as the U.S. District Court for the District of Columbia has jurisdiction over the offense under investigation. Reyes states that he believes there is probable cause that Rosen violated Section 793(d) as an aider and abettor and/or co-conspirator to Stephen Kim.

That same day, a search and seizure warrant was issued by a U.S. Magistrate Judge to be executed on or before June 11, 2010. The warrant granted the search of electronic e-mails and other electronic data of Rosen's account, and permitted the officer executing the warrant to delay notice to Rosen for 30 days under 18 U.S.C. § 2705. An attachment to the issued warrant stated that Google, Inc. was not permitted to notify "any other person, including the subscriber(s) of Redacted@gmail.com" of the warrant's existence. Google, Inc. was required to make exact duplicates of all information from the email account and send this information to Agent Reyes in overnight mail or facsimile. The attachment asked for any commuications between Rosen's account and 3 other accounts, including anothe Gmail account and two Yahoo! mail accounts; the usernames of all three accounts are also redacted in the public record. The warrant attachment referenced Rosen's connection to Stephen Kim, who was under investigation by the FBI for allegedly telling a reporter that North Korea may test a nuclear bomb.

On May 21, 2013, the government filed a motion to unseal entire docket of Rosen's case, including the application for the search warrant, the attachment to the warrant, Reyes' affidavit, and the granted warrant, with only names and dates of birth redacted for privacy reasons. 

On May 22, 2013, the court granted the government's motion in a memo and order that directed the case to be a matter of public record. The memo detailed clerical errors which stalled the placement of the redacted warrant and related materials into public record. The memo apologized for the administrative errors and instituted the inclusion of a new tab on the Court's website solely for the publication of search warrants. Executed warrants will be part of the public record unless a "separate sealing order is entered to redact all or portions" upon a showing by the government as required by United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) and Washington Post v. Robinson, 935 F.2d 282 (D.C. Cir. 1991).

In a separate order that same day, the court ordered that the Clerk place on the public docket a redacted version of the government's motion to unseal entire docket and that the government produce unredacted versions of all unsealed material to the defense in United States v. Stephen Jin-Woo Kim.

-->

Content Type: 

Subject Area: 

Jurisdiction: 

Metadata Surveillance, Secrecy, and Political Liberty (Part Two)

(This is the second part of a two-part post. In Part One, Bryce Newell examined the implications of government collection and analysis of metadata relating to electronic communications. Today, Bryce picks up from where he left off, considering the implications of government surveillance under different conceptions of freedom.)

Jurisdiction: 

Subject Area: 

Content Type: 

Small Justice LLC et al. v. Xcentric Ventures LLC

Date: 

07/16/2013

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Xcentric Ventures LLC

Type of Party: 

Individual
Organization

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Massachusetts

Case Number: 

1:13-CV-11701

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

This case arose from the judicial transfer of the copyright in a report entitled "Complaint Review: Richard A. Goren" ("the Report") that was posted on consumer reporting website Ripoff Report on January 31, 2012. The copyright transfer was ordered by a justice of the Massachusetts Superior Court in Goren v. Doe.

On July 16, 2013, Goren and Small Justice LLC, a separate entity alleged to have an interest in the copyright of the Report, filed a complaint in the U.S. District Court for the District of Massachusetts against Xcentric Ventures, the owner and operator of Ripoff Report, for copyright infringement. The complaint claimed that after the state court transferred copyright ownership to Goren on May 8, 2013, he served Xcentric Ventures on May 14, 2013, with a demand that the defendant cease infringing on his copyright and remove the Report. The complaint alleged that Goren made the same demand on June 25, 2013, and that on June 27, 2013, Ripoff Report -- which has a strict no-removal policy -- notified Goren of its refusal to remove the Report.

The complaint stated that per a preliminary injunction issued by the state court, Google acquiesced to Goren's request to remove the URLs containing the content specified in the injunction, which appeared in response to searches for "Richard Goren attorney" and "Richard Goren fraud." The plaintiffs alleged that after the removal, however, the Report was re-indexed with different dates from the original and appeared again on a Google search. They alleged that these acts of infringement were willful and intentional and that, unless enjoined, the conduct would continue to cause both plaintiffs "great and irreparable injury that [could not] fully be compensated or measured in money." The plaintiffs sought injunctive relief, statutory and actual damages, and attorney's fees, as well as a jury trial.

Plaintiffs filed a First Amended Complaint on  September 2, 2013, adding "Christian DuPont dba Arabianights-Boston Massachusetts" - alleged to be the creator of the original Ripoff Report entry at issue - as a plaintiff. The new complaint also added three new claims against Xcentric: libel, tortious interference, and unfair and deceptive acts under Massachusetts General Laws chapter 93A. The last claim involved allegations that Xcentric operated a scheme where they refused to remove damaging content while offering those affected an opportunity to pay for "arbitration services" to restore their reputations.

Xcentric moved to dismiss the First Amended Complaint on  September 16, 2013, arguing among other things that: (1) the new claims were barred by Section 230 of the Communications Decency Act because they were based on content created by a third party; and (2) Goren lacked any ownership of the copyrights because  Xcentric owned those copyrights itself under the original author's earlier agreement to the Ripoff Report terms of service, and/or because the state court judge's purported transfer of copyrights to Goren was invalid under the Copyright Act as an involuntary transfer.

The plaintiffs opposed the motion to dismiss, arguing that Section 230 did not apply to Xcentric's content because Xcentric claimed to own the content at issue and affirmatively promoted it.  It further argued that Xcentric's arbitration scheme for damaging content was separately actionable as an unfair trade practice. With respect to copyright standing, the plaintiffs claimed that the alleged transfer of rights to Xcentric was invalid as a matter of contract, and that the transfer of rights by the state court judge was the result of the original author's voluntary decision not to defend against the state court action.  The plaintiffs further sought partial judgment on the pleadings that Xcentric was not protected by Section 230 and could not prove that it had received a transfer of the copyrights at issue.

On March 24, 2014, the district court ruled on the pending motions, as follows: (1) granting the motion to dismiss (and denying plaintiffs' motion) as to the libel, tortious interference, and Chapter 93A claims to the extent they were based on publication of third-party content, finding that these claims were barred by Section 230 regardless of whether Xcentric owned or promoted the content; (2) denying the motion to dismiss as to the Chapter 93A claim to the extent that it was premised on the offering of arbitration services; and (3) denying both Xcentric's motion to dismiss and plaintiffs' motion for judgment on the pleadings as to the copyright issues, finding that the state of copyright ownership could not be determined on the current state of the record. The court did not reach the question of the validity of the state court's purported transfer of the copyright to Goren.

 

Content Type: 

Jurisdiction: 

Subject Area: 

Goren v. Doe

Date: 

11/09/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Doe d/b/a Arabianights-Boston, Massachusetts; Steven DuPont a/k/a Steven Christian DuPont

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court for Suffolk County, Massachusetts

Case Number: 

SUCV2012-04121

Legal Counsel: 

(defendants defaulted without appearance)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Default Judgment
Injunction Issued

Description: 

On November 9, 2012, attorney Richard A. Goren filed a complaint in the Superior Court for Suffolk County against John Doe d/b/a Arabianights-Boston, Massachusetts, and Steven DuPont a/k/a Steven Christian DuPont.

According to the complaint, on January 31, 2012, defendant Doe filed a report entitled "Complaint Review: Richard A. Goren" on the consumer reporting website Ripoff Report. Among other things, the report asserted that "Psycho-Richard Goren" has problems with addiction; commits perjury and fraud; abuses the law; and has a history of child abuse, domestic violence, and bisexuality ("the Report"). The complaint further alleged that an anonymous reply to the Report was posted stating that Steven Christian DuPont was "defaming another person," after which DuPont, under an alias, responded that he was not "guilty of any crimes or 'schemes'" and that the anonymous poster was guilty of many crimes. The complaint stated that Goren had previously represented a plaintiff in a lawsuit filed against DuPont, and that "[u]pon information and belief DuPont is Doe."

The complaint listed three causes of action: libel, equitable and injunctive relief, and intentional interference with prospective contractual relations. Goren claimed that the Report constituted libel per se and was susceptible only of a defamatory meaning, alleging that the defamatory per se publication was first on a Google search for Goren and that he had suffered a loss of income, damage to his reputation, and emotional distress as a direct result of the publication. Under the claim of equitable and injunctive relief, the complaint alleged that the continued republication of the Report on Google, Bing, and other online search engines presented a continuing threat of irreparable harm to Goren, warranting entry of a temporary restraining order, a preliminary injunction, and a permanent injunction enjoining Doe from continuing to publish the Report. The complaint then alleged that Doe's actions constituted intentional interference with Goren's prospective contractual relations and that Goren had suffered damages as a direct and proximate result of this interference.

On November 26, 2012, a justice of the Superior Court entered a preliminary injunction against publishing or republishing the Report. The court held the Report presented a "continuing threat of irreparable harm" to Goren that could not be remedied by an award of damages.

On March 20, 2013, the court entered a default judgment against the defendants and issued a permanent injunction. The judgment noted that Goren had dismissed his claims for libel and intentional interference with prospective contractual relations, leaving only a claim for equitable and injunctive relief. The court permanently enjoined the defendants -- now referred to as Defendant John Doe d/b/a Arabianights-Boston, Massachusetts, n/k/a Christian DuPont, and Defendant Steven DuPont a/k/a Steven Christian DuPont -- from publishing or republishing the Report. The court ordered Doe to "take any and all necessary steps and action necessary or appropriate" to remove, retract, and/or delete the Report from the website. Further, the court appointed Goren as "attorney-in-fact, coupled with an interest, with the power of substitution, in the name and place of" Doe to take all necessary steps to remove the Report.

On March 25, 2013, Goren filed a motion to amend the default judgment and permanent injunction. The motion proposed that the court add an assignment and transfer of the copyright of the Report to Goren "[t]o achieve the purpose of the Default Judgment."

On May 8, 2013, the court entered a judgment and amended permanent injunction. The judgment added to the previous judgment and injunction, explicitly stating that "all rights in and to ownership of the copyright by the author [Doe] of the [Report] is hereby transferred to [Goren], meaning and intending to convey, transfer and assign by this Order and Judgment the full and exclusive ownership of copyright." The order also added that Goren had the power of attorney in his own name, as well as Doe's, to take any action necessary for the Report's removal.

The copyright transfer from this case resulted in a copyright infringement case, Small Justice LLC et al. v. Xcentric Ventures LLC.

Content Type: 

Jurisdiction: 

Subject Area: 

Massachusetts v. D'Ambrosio

Threat Type: 

Criminal Charge

Date: 

05/01/2013

Party Receiving Legal Threat: 

Cameron D'Ambrosio

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Lawrence District Court (District Court Department of the Trial Court of Massachusetts)

Legal Counsel: 

Geoffrey DuBosque, The Law Offices of Geoffrey DuBosque, PC

Publication Medium: 

Social Network
Other

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

The plaintiff, an 18-year old who aspires to be a rapper, posted lyrics on his Facebook page referencing the Boston Marathon bombings two weeks after the bombings occurred. D'Ambrosio also posted that the White House was a "federal house of horror." While his Facebook page has since been removed, in one line of the rap, D'Ambrosio wrote, "everyone you will see what I am going to do, kill people." D'Ambrosio also recorded a Youtube video and sent text messages that referenced the content of this rap.

On May 1, 2013, D'Ambrosio did not attend school, and at least one student, who had seen the Facebook post, notified school officials, who then notified police. D'Ambrosio was arrested one week after the Facebook post and charged with Communicating a Terrorist Threat under Mass. Gen. Laws c. 269, section 14, a felony charge that can bring up to 20 years in prison. According to Chief Solomon of the Methuen Police Department, D'Ambrosio did not make threats against particular individuals or the school in his rap. Judge Lynn Rooney of Lawrence District Court originally set D'Ambrosio's bail at $1,000,000 but this was subsequently revoked, and D'Ambrosio was held without bail.

On May 2, 2013, D'Ambrosio was arraigned in Lawrence District Court and, represented by his attorney Geoffrey DuBosque, plead not guilty on charges of making a bomb threat.

After D'Ambrosio's arrest, Fight for the Future and the Center for Rights posted a petition on their website entitled "Free Cameron D'Ambrosio!" The website detailed D'Ambrosio's arrest and argued for protection of D'Ambrosio's First Amendment privileges and freedom of speech on the internet. The petition received over 90,000 signatures.

On June 6, 2013, a grand jury refused to indict D'Ambrosio on a charge of making terrorist threats and Judge Rooney ordered that he be released on personal recognizance. On June 27, 2013, the charges against D'Ambrosio were officially dropped.

Content Type: 

Jurisdiction: 

Subject Area: 

Rodriguez v. Widener University

Date: 

03/13/2013

Threat Type: 

Disciplinary Action

Party Receiving Legal Threat: 

Miguel Rodriguez

Type of Party: 

Individual
Government
School

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of Pennsylvania

Case Number: 

2:13-cv-01336-JP

Legal Counsel: 

Lewis P. Hannah, Clinton L. Johnson

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

Miguel Rodriguez is a U.S. Navy veteran, who attended Widener University under the G.I. Bill as a student in the Biology Pre-Med Program, and worked as a tutor and Advisor and Operations Manager at the University. In a complaint filed March 13, 2013 in the Eastern District of Pennsylvania, Rodriguez brought eight causes of action against Widener University, the City of Chester, David Coughlin, Denise Gifford, Patrick Sullivan, and Matthew Donohue, claiming civil rights and privacy violations arising out of events that  transpired after Defendant Sullivan, Widener's Director of Campus Safety, allegedly gained access to and printed images from Rodriguez's Facebook account without authorization on March 16, 2011.

According to the complaint, as a result of the unauthorized access Widener University and Chester Police Officer Matthew Donohue brought Rodriguez in for interrogation and temporarily suspended him. According to Sullivan, he was suspended because "he was perceived to be a threat to the community and . . . displayed weapons on Facebook." At the end of this interrogation, Rodriguez was involuntarily sent to Crozer Chester Medical Center for one week, during which Rodriguez was forced to miss a medical school admissions interview. When he was cleared by the Medical Center, the suspension was continued due to a small amount of marijuana and a knife found when the Chester police searched his book bag during the investigation process. The University then made readmission contingent upon a positive assessment by Dr. Beth Howlett in Widener's Office of Disabilities Services. During this time, David Coughlin, Rodriguez's advisor, allegedly made false statements to the campus and Chester police about Rodriguez, claiming he was restricted from campus and had been making threatening calls. On March 25, 2011, Rodriguez was expelled from Widener University and his employment with the University was terminated.

Rodriguez claimed the Defendants violated the Civil Rights Act, 42 U.S.C. § 1983, arguing that the unwarranted dismissal and termination, as well as interrogation and involuntary admission to the hospital, violated his rights under the Fourth and Fifth Amendment. This claim was accompanied by a § 1985 claim for conspiracy to interfere with civil rights. Rodriguez similarly claimed a violation of his equal protection rights, asserting that the Defendants discriminated against him based upon his disability, race, and/or status as a  "class of one;" and that the Defendants violated the Rehabilitation Act by dismissing Rodriguez as a student and terminating his employment rather than providing accommodations for his mental disability. The complaint also asserted several privacy-related claims, including an invasion of privacy under the Fourth Amendment when the Defendants accessed information on Rodriguez's Facebook page and obtained medical information from the hospitals he was admitted to without his consent. Rodriguez also argued that accessing his emails and Facebook page and using the photos found therein without his authorization constituted a violation of the Electronic Communications Privacy Act and the Stored Communications Act. Lastly, under Pennsylvania's common law, Rodriguez argued that he had a reasonable expectation of privacy with respect to his Facebook account, which was violated by the Defendants' unauthorized access of the account.

In response, the Widener Defendants moved to dismiss the complaint on April 4, 2013. First, the Widener defendants argued that they are not state actors for the purposes of 42 U.S.C. §§ 1983 and 1985 or under the U.S. Constitution, and that therefore the Civil Rights Act, equal protection, and Fourth Amendment-based privacy claims should be dismissed. The Defendants also maintained that Rodriguez could not pursue a cause of action under the Rehabilitation Act as he had never disclosed the disability to the University or sought accommodation for the disability prior to his suspension. Lastly, as Rodriguez's Facebook posts were accessible to the public generally and/or forwarded to the Defendants by concerned students who had been permitted access to his Facebook page, the Defendants moved to dismiss the ECPA and SCA claims, as well as the Pennsylvania privacy claim, as these all rely on improper access.  

On April 25, Rodriguez opposed this motion. First he argued that despite being private parties, the Widener Defendants are state actors, as they "willfully participated in a joint conspiracy with state officials to deprive a person of a constitutional right acts ‘under color of state law'" by bringing in the Chester police. He also alleges that the Defendants were aware of his mental disability, made particularly clear during the interrogation, and perceived Rodriguez as disabled, sufficient to sustain a claim under the Rehabilitation Act. As to those claims that rely on unauthorized access to Rodriguez's Facebook account, Rodriguez reasserted that he did not post them publically, though it remains to be determined how the Defendants obtained the images.  

The District Court granted in part and denied in part the Widener Defendants' motion to dismiss in an order on June 17, 2013. The Court dismissed Rodriguez's first four claims, which relied on finding the Widener Defendants to be state actors. The Court concluded that Rodriguez failed to plausibly allege state action, such that the Civil Rights Act and Fourth Amendment claims could not be properly sustained. In addition, the Rehabilitation Act count was dismissed, as the Court held that Rodriguez failed to establish that Widener University should have been aware that he was entitled to any accommodations or that he ever requested such accomdations. Discussing the ECPA and SCA claims together, the Court concluded that to the extent that these statutory claims were based on improper access to Rodriguez's Facebook images, the claims may proceed. Judge Padova's opinion noted that there was no factual basis for the Defendants' assertion that Rodriguez's Facebook images were generally available to the public, whereas the emails in question had been sent by Rodriguez himself to some of the Defendants. With respect to the common law invasion of privacy claim, the Court narrowed the claim down to the two theories of privacy that could possibly be plausible:  publication of private facts and false light. Because Rodriguez failed to allege the elements a privacy claim under either theory, this claim was also dismissed. 

Following the Court's order dismissing most of Rodriguez's claim, on July 2, 2013, the Widener Defendants answered the complaint regarding the surviving SCA and ECPA claims. Their defenses emphasized the public nature of Rodriguez's Facebook postings, arguing that they were generally available to the public, or in alternate, permissbly accessible to third parties who in turn shared the information with the Widener Defendants. 

The City of Chester and Officer Donohue also filed a 12(b)(6) motion to dismiss on July 15, 2013. The parties stipulated that of the many claims made by Rodriguez, the only claim against the Chester Defendants was for false arrest in violation of the Fourth Amendment under 42 U.S.C. § 1983. The Chester Defendants argued that they did not directly cause a constitutional deprivation and that Rodriguez's complaint made no allegation that his constitutional rights were violated by policies or customs of the municipality of Chester or Officer Donohue as its agent. 

Content Type: 

Subject Area: 

Jurisdiction: 

Metadata Surveillance, Secrecy, and Political Liberty (Part One)

(Following on from Rebekah Bradway's post last week regarding government-created metadata as public records, we are pleased to present a two-part post from Bryce Newell on the role of metadata in government surveillance. -- Ed.)

Jurisdiction: 

Subject Area: 

Content Type: 

Ourway Realty, LLC d/b/a Plainridge Racecourse v. Keen

Date: 

06/04/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Thomas Keen

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Commonwealth of Massachusetts, Norfolk County Superior Court Dept.

Case Number: 

2012-00963

Legal Counsel: 

Prince Lobel Tye LLP: Jeffrey J. Pyle; American Civil Liberties Union of Massachusetts: Matthew R. Segal, Sarah Wunsch

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

The plaintiff owns the Plainridge Racecourse, a harness horse-racing track in Plainville, Massachusetts. Thomas Keen maintains the website "NoPlainvilleRacino" which opposes the development of a gaming facility in Plainville, Massachusetts.

On April 20, 2012, Ourway Realty d/b/a Plainridge Racecourse sent a cease and desist letter to Keen which cited a photograph Keen had posted on his NoPlainvilleRacino website. The picture showed an individual who was suspected of breaking and entering into a building on the Plainville Racecourse. Underneath the picture, another user left a comment that said, "I wonder if they checked the racetrack, lol." The cease and desist letter alleged that Keen's posting was "objectionable, unprofessional and actionable" and stated that Keen posted the photo to "associate the alleged crime" with Plainville Racecourse. The letter demanded that Keen remove the posting, refrain from posting "similar damaging material" in the future. The letter also demanded that Keen issue an apology on his website, Facebook, and the Sun Chronicle newspaper.

On June 4, 2012, Ourway filed a complaint against Thomas Keen in the Superior Court in the Commonwealth of Massachusetts for defamation. The complaint stated that the posting "intimates that criminals are clearly associated with the Plaintiff's present operations," and alleged that because of Keen's posting, Ourway suffered severe economic harm. The plaintiff requested damages, injunctive relief to remove "offensive material" from Keen's website, and an order prohibiting future publication of "information similar in nature."

On July 20, 2012, Keen served a Special Motion to Dismiss on Ourway pursuant to Massachusetts' anti-SLAPP statute, G.L. c. 231, § 59H. Keen's memorandum of law in support of the motion asserted that the comment at issue was removed prior to the commencement of litigation and called the plaintiff's action a "class example" of a SLAPP suit. The memorandum cited Keen's right to petition under Massachusetts' anti-SLAPP statute, saying that Keen's website satisfies at least four of the five forms of right to petition protected under the law:

  1. The site contains a "written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding" over whether a "slot parlor would be good for Plainville[,]" an issue that the Plainville Board of Selectmen will negotiate with Ourway under the MA gaming statute.
  2. The site is "reasonably likely to enlist public participation" because it encourages "residents to contact selectpersons and ‘tell them a racino is not in Plainville's best interest.'"
  3. The site is "reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding" because the website elicits readers to contact town officials regarding their stance on the racino.
  4. The site's stance on racino falls under the final definition of § 59H, "any other statement falling within constitutional protection of the right to petition government" as the website was "intended to organize" a community "around an issue of concern."

The memorandum further argued that Ourway could not show by a preponderance of the evidence that the petition caused the plaintiff actual injury or that Keen's right to petition lacked any "reasonable factual support or arguable basis in law." It cited the "lol" from the user's comment, saying that "statements written ‘not for serious effect' are simply not libelous."

Keen also served an affidavit which discussed his opposition to the casino development and his establishment of the NoPlainvilleRacino website. His affidavit detailed the origin of the photograph, which was taken by a webcam of a burglar who broke into Keen's home; that photo was posted by the Plainville Police Department on its Facebook page. An administrator of the No Plainville Racino Facebook page shared the photo on that page, under which a Facebook user posted the comment in question.

On August 17, 2012, Ourway served Keen with an Opposition to Keen's Special Motion to Dismiss. The memo in opposition said that the anti-SLAPP statute was not meant to protect Keen's conduct, as § 59H is not meant to be an "absolute privilege." The memo in opposition uses the example of an "individual [going] onto any website regarding pending legislation and mak[ing] comments or insinuations unassociated with . . . the site, such as baseless accusations of accusing their opponents of a crime or harboring criminals and then hid[ing] behind the statute" as an example of what the statute was not intended to cover.

On September 12, 2012, Keen served a Reply in Support of Special Motion to Dismiss Pursuant to G.L. c. 231 § 59H, saying that Ourway's memo in opposition differed from the complaint's allegations and that Ourway failed to meet its burden of proof.

Keen's anti-SLAPP motion papers, Ourway's opposition, and Keen's reply were filed with the court on September 17, 2012, pursuant to Superior Court Rule 9A, and was docketed by the court on September 19, 2012

On December 13, 2012, the court allowed Keen's Special Motion to Dismiss, finding that the plaintiff's complaint is based on Keen's "petitioning activities" on his website and that Ourway failed to establish that the "petitioning activities were devoid of factual or legal merit." Keen applied for an award of attorneys' fees, and on April 8, 2013, was awarded $24,776.00 in fees and $136.37 in costs.

Ourway initially appealed the court's ruling, but stipulated to dismissal of its appeal on April 30, 2013.

Content Type: 

Jurisdiction: 

Subject Area: 

911, What's Your Emergency? Public Access to 911 Calls in California and Maine

PhoneAs California delays public access to prank celebrity 911 phone call records, a court in Maine has kicked things up a notch, pulling from one of over 500 exceptions to Maine's Freedom of Access Act (“FOAA”) to block public access to a 911 record in connection with an ongoing criminal trial.

Jurisdiction: 

Subject Area: 

Content Type: 

Pages

Subscribe to RSS - Text