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.
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 Callerthat 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 Callerthat he is suing “first in Missouri and then in Fresno.” This will not go well.
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.
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):
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.
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.
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.
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. Read more
Perhaps, anyway. Phan Thi Kim Phúc, the woman pictured in the photo, has long since started a foundation to assist child victims of war, and I’d be surprised if she objected to the public display of the photo. So this may not be the best example. But had Arizona’s law been enacted in 1972, when the photo was first published, the question of whether the publisher “knows or should have known” that she did not consent to its disclosure. For a more recent example, the plaintiffs cite the Abu Ghraib photos. In any event, Arizona’s failure to include a newsworthiness exception to the law significantly weakens its viability the First Amendment. ↩
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.
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.
So there’s no confusion, my reporting did not, as far as I’m aware, play any role in his arrest, as the criminal investigation started before my post ↩
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.
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.