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.
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.
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.)
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.
I’m drawing some big black lines lines in a gray area here, of course. Some sites may provide the same anonymous mass audience, which perpetrators may utilize to impersonate their victims and harness strangers to do their stalking or harassment for them. See, for example, the case against David Elam, who is alleged to have impersonated an ex-girlfriend on Craigslist and OKCupid to solicit strangers to visit her home. ↩
The violation of the CFAA — commonly referred to as ‘hacking’ — carries a minimum two year sentence, and Moore faces up to seven years in prison. It’s incredibly unlikely that Moore will receive the full seven years. More also faces fines which may reach as high as $500,000.
Moore’s charges stem from allegations, which he has admitted, that he solicited and paid co-defendant Charlie Evens to access e-mail accounts and search for nude photos, which Moore would then post on his website, IsAnyoneUp.
Evens still faces trial in March. There is no plea agreement with Evens that has been made public, if one exists, and Moore’s agreement does not include any indication that he has agreed to testify against Evens.
Last month, Ares Rights found itself the subject of renewed media attention asking whether the government of Ecuador employs the peculiar Spanish firm to deploy bogus copyright notices in an effort to censor or harass political dissidents.
(For background, you can read my original summary how Ares Rights has purported — for years – to act forf governments and officials of Ecuador and Argentina, to abuse American copyright law to remove criticism — including this very website.)
I’d begun to suspect that Ares Rights had decided to lay low for awhile, or perhaps that its ties to the government had been severed altogether — if they existed at all, anyway, as the rare statements by their purported ‘clients’ have been to deny that a contractual relationship exists. Comedic satirist John Oliver’s absolutely brutal takedown of Correa’s live-on-television doxing of his Twitter and Facebook critics only added fuel to criticism of Correa’s intolerance of dissent. (Curiously, HBO’s re-run of the episode was broadcast throughout South America –except Ecuador.)
But now, Ares Rights is back. In DMCA notices sent to YouTube, Ares Rights once again purports to act on behalf of Ecuadorian president Rafael Correa (who, to my knowledge, has never denied hiring Ares Rights, even when addressing the issue), Ecuador’s state-funded television outlet ECTV (which has denied having a contractual relationship with Ares Rights), and Correa’s official television broadcasts. One of the DMCA notices sent to YouTube by Ares Rights is below.
The YouTube videos targeted by Ares Rights consist of a documentary criticizing journalistic freedom under Correa’s government. A few short clips of Correa’s televised addresses on his official program on ECTV are interwoven among interviews with various free speech advocates. In any nation with a remotely sane copyright law or a modicum of respect for the freedom of political speech, these would be fair uses exempt from claims of copyright. When the words of a politician can be subject to copyright, then the politician need only seek the removal of his own words when they’re used to criticize him.
In addition to the few clips of Correa’s speeches — which, with his handheld microphone, look more like televised sermons — the only other clip which originates from Correa’s government or television network is an advertisement, apparently produced by the communications arm of Ecuador’s government, which should be in any respectable documentary about freedom of speech in Ecuador, because it is alarming and has no place in a coherent democracy. In the ad, a woman and her son are appalled when they gather around the breakfast table and read a newspaper headline declaring, “Drunk woman crashes with her young lover.” The son says, “but mom, that’s a photo of you driving me to school.” Then the words literally start attacking the woman, and the son tells the viewer that a new communications law is needed to protect freedom of speech, as opposed to freedom of ‘distortion':
The above clip is identified in Ares Rights’ takedown notice as infringing on its putative clients’ rights. Critics of Ecuador can’t even reprint its official government propaganda in the context of criticizing it, because copyright. The government’s words, whether from the mouth of Correa or in the form of a slick public ‘service’ announcement, must come from “authorized official channels”, per Ares Rights’ claim.
The true role of Ares Rights remains unclear. Have they been hired by Correa or his government? Or are they acting independently? Until these questions are answered — and perhaps after they’re eventually answered — the content targeted by Ares Rights should be viewed and shared. Someone, whether officially sanctioned or not, doesn’t want them to be seen. Those efforts should — and must — backfire.
The revolving door of attorneys momentarily employed by censorious asshats Roca Labs has now produced this gem: the company wants to amend its complaint in its suit against PissedConsumer.com to allege that it’s defamatory to call them “censorious asshats” (which they are.)
In a complaint so long — clocking in at three hundred and fifty-four paragraphs — and saturated with images that it had to be sent to the court in four separate files, Roca “Censorious Asshats™” Labs is very angry. I’ve stitched the complaint together below, if your computer is capable of handling seventy-four pages of censorious asshattery.
Sometimes the best response to a censorious threat of litigation — especially when the saber-rattler has a lengthy history of filing dumb lawsuits — is to show up first and put them on the defensive.
Roca Labs’ litigation history is fairly extensive for the short period of time in which they’ve made the courts their sandbox, so I won’t repeat it here, but Techdirt’s coverage has been fairly comprehensive and is well worth perusal. In short, Roca Labs is a Florida company which produces a nutritional supplement purporting to allow amazing weight loss, but it’s so amazing that in order to buy it, you have to promise not to criticize the company. Roca has issued threats of defamation lawsuits against many critics and has followed through on some of them, including a series of lawsuits targeting consumer gripe site PissedConsumer.com and reviewers who criticized Roca on that site. These lawsuits are frivolous abuses of the legal system designed to intimidate critics into silence.
Around the time that Roca Labs was losing its quest for a court order mandating that PissedConsumer stop letting people criticize the company, Roca issued a demand under the DMCA, asserting that PissedConsumer was using a thumbnail version of Roca’s logo and a photograph of Roca’s product. Plus, the complaint continued, PissedConsumer was infringing on Roca’s trademark by using its name “in the URL and pages.”
Had Google accepted Roca’s complaint, it likely would have resulted in Google removing the PissedConsumer criticism of Roca Labs from Google’s search results. Of course, this is exactly what Roca is trying to do, as it has gone as far as to file a lawsuit with that explicit goal. And, of course, it didn’t work.
Now PissedConsumer is going on the offensive, filing a lawsuit in the Southern District of Florida under the DMCA. PissedConsumer alleges that Roca Labs knew or should have known that its DMCA takedown notice was frivolous, as the use of the logo was clearly a fair use, rendering Roca Labs liable for damages caused under 512(f). While there are some potential pitfalls for this claim — I won’t help Roca by pointing them out here — there is some support for the notion that a takedown notice issued against clear fair uses runs afoul of 512(f). Plus, PissedConsumer has added a cause of action for Roca Labs’ attempted use of the DMCA to assert a trademark right, which was clearly an inappropriate use of the DMCA takedown mechanism.
PissedConsumer is also seeking declaratory relief that its use of Roca’s name did not infringe on its trademark, as well as declaratory relief that various statements — for example, that “Roca Labs […] believes that it can silence you through fear and intimidation directed at Pissed Consumer” — are not defamatory. Because they aren’t. PissedConsumer also asserts that Roca’s conduct has amounted to an abuse of process. Which it is.
In September, Ares Rights directed three DMCA takedown notices to my web host, demanding removal of an entire post because it contained “private and not public data” — that is, an “address, email and telephone” — and “a document with copyright.” The complaint also implied that the post infringed on a trademark. The post in question, however, had redacted any contact information and the ‘copyright’ in question arose from a composite image created by a newspaper which contained the logo of Ares Rights.
Yesterday, Ares Rights 1 tried its luck again, complaining to Twitter that I had tweeted an image linking Ares Rights to (what appears to be) a DMCA notice to Facebook targeting a critic of Ecuador’s government — a notice purportedly sent on behalf of Ecuador’s state-owned television station ECTV. The complaint cited a violation of Twitter’s “rules regarding posting information or images that the individual claims as private.” Twitter suspended my account until I promised to comply with the rules, then deleted the tweet in question. That tweet and the complaint I received from Twitter are below.
The ‘private’ information consisted of an email address belonging to Ares Rights: a professional address associated with a firm purporting to act on behalf of the government of Ecuador. That email address is easily found on the Chilling Effects database of DMCA notices.
Twitter is, of course, free to establish their own rules and enforce them as they please. Their sandbox, their rules. 2 But Ares Rights’ invocation of ‘privacy’ is a fig leaf. The firm is engaging in a pattern and practice of cynically invoking laws or policies, whether in copyright or privacy, to attempt to harass and intimidate critics of Ares Rights or Ecuador. I’m not the only critic of Ares Rights to be targeted in this manner. Twitter has repeatedly yielded to these demands, so Ares Rights will continue to abuse them.
Ares Rights presumably sent the notice. Twitter does not disclose the identity of the sender. But what are the odds that someone else would be interested in a three-month-old tweet about Ares Rights? And what are the odds that someone else is dedicated enough to do this to multiple critics of Ares Rights? Given Ares’ record of invoking dubious policies to harass critics, I would be surprised if this were not Ares Rights. ↩
While the company has been conducting a scorched-earth litigation campaign against its critics, suing many on much-maligned grounds, it has been quietly facing a class action in California. The case, filed in September in the Los Angeles Superior Court, alleges causes of action for unfair competition, violations of the Consumer Legal Remedies Act, false advertising, and negligent misrepresentation.
His latest foray has been widely ridiculed — and for good reason: even if you disbelieve the allegations of “Jackie” set forth in a trainwreck of an excuse for journalism, it’s off-setting to watch Johnson’s giddy dumpster-dive into Jackie’s social media, as he rises with “BREAKING” news of whichever post he found the previous hour, devoid of context and, often, relevance. 1
So, with irony lost on nobody but Chuck, Gawker’s Deadspin published its own findings from Johnson’s unsecured Facebook profile, wherein he instructed his “resentful” former classmates that they needed to stop contacting him in his newfound days of “notoriety and success.” Johnson responded to an email from Deadspin offering that “the comments about me shitting on the floor were made up.” This tale — that Johnson allegedly defecated on the floor of a dormitory in undergrad — is apparently an old joke tossed about by his detractors at Claremont-McKenna. For what it’s worth, I doubt it’s true.
Deadspin, grasping the irony beyond Johnson’s reach, channeled Johnson’s finesse for speculating wildly from a misinterpretation and satirically asked whether the rather obvious joke was true:
I’d be inclined to believe the guy, or at least give him the benefit of the doubt. But he’s been caught lying many times before, and in the wake of Rolling Stone deputy editor Sean Woods tendering his resignation today, it’s more important than ever to fact check. And so I ask you, dearest readers: Did Chuck Johnson really shit on the floor in college? Please send context, stories, and photos to email@example.com.
If the past is any indication — and if Johnson gets remotely competent legal advice — this will never, ever happen.Read more
Johnson’s great discovery was that “Jackie” had ‘pinned’ posts about being a rape survivor, which Johnson essentially identified as indicia that she’s a lying slut while pointing to Virginia’s criminal defamation statute. Johnson pointed to one photo in particular, of “Jackie” holding a sign. Of course, there was no indication that the posts were made before the alleged assault, and of course a survivor of rape might express herself in this way. Oh, and it wasn’t her in the photo. Oops. So he updated the headline to read that she had “retweeted” the photo, which would be accurate if this were Twitter. It’s Pinterest. ↩
While I do have a J.D., I haven't been licensed quite yet. That means you shouldn't rely on anything I write for anything more than mere amusement. I'm not an attorney. I'm not your attorney. I can't -- and won't -- give you any legal advice, here or anywhere. Even if I did, relying on someone without a license is akin to entrusting your car to a precocious six-year old who has demonstrated a proficiency on his Big Wheels bike. Don't do that.