Adam Steinbaugh's

After a few mostly-wrong and very-bad blog posts, and a half-million visitors here (!), the rabblerousers over at Popehat.com have been so kind as to invite me to join them as a contributing blogger there.  I’ll be posting much of the same nonsense that I’ve posted here over the last few years, and I hope my massive online audience will follow me over there.  So I hope to see both of you there.

I’ll probably continue to post minor updates on some particular cases here, and will probably use this to post things that you don’t care about, like my weird music interests and pictures of my cat.

As always, you can also follow me on twitter dot com, and please send tips (especially crazy or free-speech-related lawsuits!) via email.

Well, time to eat a little crow here.  I predicted that Chuck Johnson, a self-described “First Amendment absolutist”  widely reviled for his racist-leaning tirades (among other things), would never file a libel lawsuit after threatening (and failing) to sue half of the western internet for libel.

But now he’s actually done it, filing a lawsuit in… a county court in Missouri?… over several pieces documenting his shenanigans on Gawker.  The complaint (“leaked” to one of Johnson’s friends, so it’s possible that it hasn’t been filed at all) is below.

Chuck, a resident of California, also tells the Daily Caller that he’s going to be suing CNN and a CNN reporter for characterizing a tweet as an assassination threat (which is not defamatory because it’s a statement based on disclosed evidence), as well as Politico for this piece, and Charles Johnson. ¹

But wait, let’s get back to the Missouri thing.  Johnson — a California resident whose website’s corporation is also incorporated in California — tells the Daily Caller that he is suing “first in Missouri and then in Fresno.”  This will not go well.

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This is out of left field.  Charlie Evens, who was charged in federal court in Los Angeles with hacking email accounts in search of nude photographs — and being paid by internet arch-nemesis Hunter Moore for doing so — has pleaded guilty to state charges.

The complaint, below, is brusque, alleging that Evens accessed eleven email accounts within one month in 2013.  The press release alleges that Evens accessed three hundred Facebook or email accounts by befriending people on Facebook and tricking them into providing him with access codes to their email accounts, after which he would log into the users’ Facebook accounts and repeat the process with their friends. In other words, he was playing social engineering leap-frog.

Evens was charged with eleven counts under California Penal Code 502(c)(4), which applies where one:

Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network.

Evens ran afoul of this statute because he (apparently) changed the passwords to the accounts after he accessed them, which is likely sufficient to meet the “alters” requirement.

The complaint, below, was filed one week ago and Evens entered a guilty plea today, indicating that a plea agreement was reached before he was formally charged.

Evens previously confessed to a CNN reporter that he had accessed others’ email accounts in search of nude photos, which is a very bad idea when you don’t yet have a plea agreement in place.  Indeed, Evens still faces a trial next month in the federal case.

A brief (if overdue) update on the ACLU of Arizona’s case concerning Arizona’s revenge porn statute (Antigone Books LLC v. Brnovich [State of Arizona]):

On May 19, a federal court in Arizona approved an agreement between the plaintiffs and the state, under which Ariz. Rev. Stat. § 13-1425 — commonly known as Arizona’s revenge porn law — is not to be enforced pending resolution of a motion for a preliminary injunction.  The plaintiffs, represented by the ACLU of Arizona, include booksellers, a newspaper conglomerate, and other publishers.

Their argument in the motion, below, is that while Arizona has legitimate goals in combating revenge porn, the law is an overbroad, content-based regulation — and thus runs afoul of the First Amendment — in that it could apply, if read literally, to a wide variety of images that are most assuredly not within the realm of “revenge porn.”  That’s because, plaintiffs (rightly) argue, the law lacks .  So, for example, if the Arizona law were being enforced (and assuming Arizona had some jurisdiction over me), I could a felon for publishing the Napalm Girl photo: ¹

The plaintiffs cite, among other things, several alleged defects which prevent the law from being narrowly tailored to suit its intended purpose (preventing the use of nude images to harass):

1. A lack of specific intent: the law imposes a negligence standard (“knew or should have known” of the depicted person’s lack of consent), which the plaintiffs argue is impermissible under the First Amendment because whether someone consented to a photo’s publication  is often difficult to tell in the absence of explicit consent.  Indeed, the law would apply even where it’s impossible to tell who the photo depicts at all.
2. No requirement that it be shown that harm resulted:  Such an exception might draw the law closer to the harm it seeks to address: the use of nude photos to harass.  Many advocates argue that such a requirement would do further harm to victims by forcing them to recount their experience to a court, which may deter victims from reporting the crime or cooperating with a prosecution.  While this is true, society requires as much from victims of far more heinous and destructive acts, and such a requirement would prevent use of the law where no harm resulted.
3. No exception for “valuable or newsworthy” events:  This is the “Anthony Weiner” exception.  However, even if the law had such an exception, it may be difficult to draft with acceptable precision.  Whether something is “valuable” or “newsworthy” is an inherently subjective determination.  Some might argue that publishing Anthony Weiner’s nude photos is not, itself, newsworthy — it’s just as newsworthy to state that the photos exist without publishing them, and little benefit is derived from actually publishing the photos.  For another recent example: were photos of celebrities “newsworthy” after they had been leaked online?  There has to be a line somewhere, but it may be impossible to draw it without being impermissibly vague.

Facing these problems, Arizona threw in the towel at the outset, agreeing not to enforce the law while the legislature went back to re-work it.  Arizona’s House diligently drafted an amended law which largely addressed these issues.  The Senate then took a look at the law, thought the amendments sounded like a good idea, and then promptly went home without passing the law.  

The law will remain unenforced until at least August 31, when the court is set to hear oral arguments.  Briefing will be completed by the end of July.  Unless Arizona’s legislature convenes a special session — as its next regulation session won’t begin until next January — the state’s revenge porn law is likely to be struck down.
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Casey Meyering’s booking photo, courtesy KTVU.

Casey Meyering, a Tulsa-Oklahoma man who operated WinByState.com, was sentenced to three years in jail by a Sonoma County, California court today.  Meyering had pleaded no-contest to one count of extortion, three counts of attempted extortion, and one count of conspiracy.

In June of 2013, I documented how Meyering had ripped off an extortion scheme pioneered by another revenge porn site operator, Craig Brittain.  Meyering created Takedownhammer.info, copying Brittain’s Takedownhammer.com (word for word), and solicited payments to this “independent” service using a Google Wallet account clearly linked to Meyering’s drum-lessons business.

When Meyering was arrested in February of 2014 ¹, he was found in a Tulsa hotel room, drunk.  He subsequently told the court he was homeless, bankrupt, and had nobody to ask for financial assistance to hire an attorney.

Meyering’s three-year sentence — much of which he has already served following his arrest in July of 2014 — pales in comparison to that of Kevin Bollaert, who is currently serving 18 years in a San Diego jail on similar charges.  Bollaert is currently appealing his conviction, and I expect that briefing will be completed sometime this fall.  Meyering, having taken a no-contest plea, will be unable to appeal.

Craig Brittain, the inspiration for Meyering’s removal service, has never been criminally charged.  In January, he settled with the Federal Trade Commission, promising to never again run a revenge porn site he had already shuttered.

Meyering could be imprisoned until around Valentine’s Day in 2017.

After utilizing Twitter as a vehicle to dispatch largely-frivolous threats to sue his critics for libel (a boy-cries-libelwolf pattern that has spawned this amusing site), what is Chuck C. Johnson to do after Twitter gives him the heave-ho?

Threaten to sue, of course.  Like his libel threats, this threat isn’t likely to lead to an actual lawsuit.  Either (a) Twitter will prefer to avoid costly litigation by giving Johnson the low-cost alternative he demands (i.e., reinstatement of his account); or (b) Johnson won’t file such a lawsuit; or (c) Johnson will file a lawsuit and lose.

Here’s why.

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Kevin Bollaert was sentenced by a San Diego court to 18 years in prison following his February conviction on twenty-seven counts of extortion and identity theft.  Bollaert was the chief operator of YouGotPosted.com (later uGotPosted.com), which published the nude photos of over ten thousand men and women, almost uniformly without their permission.

Bollaert, with his partner Eric Chanson ¹, monetized his site with both advertisements and a more devious plan.  He launched ChangeMyReputation.com, which ‘advertised’ on YouGotPosted as an independent service which could remove the photos from YouGotPosted in exchange for a few hundred dollars.  I wrote about Bollaert’s site before his arrest, demonstrating that he operated both YouGotPosted and ChangeMyReputation.com.

Kevin Bollaert is the first revenge porn site operator to be convicted and sent to prison.  Hunter Moore, widely viewed as the progenitor of revenge porn sites, will be sentenced in June after taking a plea deal on CFAA charges.  Craig Brittain, the patron saint of harnessing revenge porn as a means of extortion, somehow escaped with only a light bruising on the wrist from the FTC, despite having the most bizarre (and malicious) plot.

During sentencing, four victims testified.  One testified that her parents had disowned her when they saw the photos on the website and that she’s been homeless since.  Another asserted, similarly, that her parents had largely cut contact with her as a result of the photos being posted, and that she had lost her religious faith because of the resulting trauma.  Another, who serves in the armed forces, said he would not re-enlist at the end of his service, due to the embarrassment in front of and harassment from colleagues. One noted that she found out about the posts because she received four hundred Facebook messages.  The victims almost uniformly noted a constant concern that people looking at them in public were doing so because they recognized them from the site — one expressed a constant worry that the people he met had likely seen he and his wife on the site before they even met him.

Bollaert’s parents also spoke, his father struggling to gain composure before reading a prepared statement.  They both noted their embarrassment from what their son had done, and the impact it had on the victims’ lives.  They asked that the judge be lenient, as Bollaert couldn’t begin to recompense his victims from a jail cell, but could get a job with a family business.

Bollaert had a prior conviction for making false statements in connection with the purchase of a firearm.  That prosecution arose out of Bollaert’s purchase of 31 semiautomatic weapons, believing that they could be stored and then sold at a profit if the Obama administration pushed new gun control laws.  The ATF apparently took notice of the large quantity of firearms and saw that Bollaert had filled out a form using his PO Box, when his residential address was required.  Prosecutors used this conviction to paint Bollaert as living off the grid and attempting to create new income streams in gray legal areas.

The prosecution also noted that Bollaert had $20,000 cash in a backpack when he was arrested, apparently the fruit of extortionate payments from the site’s victims.  This, they argued, was an indication that Bollaert knew that his conduct was less-than-lawful, countering the defense’s argument that Bollaert believed that his site was legal — in part, at least, because of Hunter Moore’s crowing about how nobody would stop him and that his site was legal.  (I would have also pointed out that Bollaert hid the fact that he ran both the “ChangeMyReputation” site and the revenge porn site, which indicates that he knew it would look extortionate if he solicited payments directly.)

Bollaert did not testify at trial, nor did he call any witnesses.  His case, I’m told, largely centered on (1) the argument that his conduct did not meet California’s statutory definition of extortion; and (2) a defense under §230 of the Communications Decency Act.  I believe that Bollaert has a fairly strong argument that his conviction is barred by §230.  I discuss his possible arguments after the jump.  (It’s rather boring — and I’m probably wrong, but someone has to raise these issues, even in defense of a revenge porn site extortionist.  Only Nixon could go to China, I suppose.)

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Over the past two months, the so-called “revenge porn” issue has seen a rather dramatic development, as operators of roughly half of the dedicated involuntary porn sites (that is, sites which exist solely to allow people to post nude photos to harm another) have been convicted, will likely be convicted in the next few weeks, accepted plea agreements resulting in prison time, or settled with federal authorities.  While there are a few significant sites remaining, and continued efforts of law enforcement are necessary to shutter them, their days may be numbered.

But the practice is not limited to these sites.  Rather, other forms of social media are co-opted: photos posted on Facebook, Twitter, Tumblr, and so forth are not only increasingly likely, but potentially more damaging.  On a ‘dedicated’ site, an individual would be subjected to an anonymous audience (and usually extortion), but it was somewhat less likely that friends, family members, employers, and other acquaintances would see the photos.  On social media, however, the results are immediate and more personal: the social circle around the victim sees the photos within minutes or hours. ¹

The question, then, becomes one not necessarily of law (i.e., the operators of involuntary porn sites being arrested for peripheral offenses like extortion), but of policy.  How do social media platforms like Facebook and Twitter (which are, like ‘dedicated’ sites, exempt from most liability due to CDA 230) prevent or remedy this type of abuse of their networks?  Of course, as the sites are largely exempt from liability due to CDA 230, they don’t have to do anything at all, but this approach would yield criticism.  As Yahoo!’s CSO recently noted, “[w]e can’t tell people not to take intimate photos. We need to make that safe because that’s how people are using the technology.”

Reddit is taking the right — albeit not perfect – approach.

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