Kevin Bollaert, Operator of Revenge Porn Site YouGotPosted Arrested, Charged With Extortion

The California Attorney General’s office today announced that Kevin Bollaert, one of the operators of now-defunct revenge porn site YouGotPosted, was arrested and charged in a San Diego state court with thirty-one felony counts of identity theft and extortion.  The complaint is here, but the arrest warrant contains much greater detail linking Bollaert to the site and its extortionate companion, “ChangeMyReputation.com”.  I wrote in some detail about the ties between Bollaert, YouGotPosted, and the “independent takedown” website “ChangeMyReputation” last December.

These are first criminal charges filed against the operator of a revenge porn site in the United States.  On first blush, although criminal law is by no means my forte, the complaint against Bollaert will be difficult to sustain: the Communications Decency Act bars certain state-level criminal charges against the operators of a website, assuming the identity theft charges treat Bollaert as the speaker (as opposed to the persons who provided the nude photos to him).  Whether the extortion charges are barred by the CDA is a more complicated question.

Notably, the complaint repeatedly references a co-conspirator, and the arrest warrant notes that the site’s other proprietor, Eric Chanson, asked that Bollaert not associate Chanson’s name with the site in July of 2013.  In August, Chanson told a Federal court that he had sold his share in the YouGotPosted enterprise to Bollaert in March. I am unaware of any information publicly available in July 2013 that would tie Chanson to the site, so it’s unclear why he would send such an email unless he were still somehow involved.

This is only the summit of Bollaert’s legal woes.  In September, Bollaert and his company, Blue Mist Media, were hit with a $300,000 default judgment by a Federal court in Michigan.

More on this story as it develops and I have time to analyze the complaint against Bollaert.

 

Call a Spade a Spade: Mugshot Sites and Revenge Porn Sites are Extortion

The New York Times published this excellent roundup on the rash of online ‘mugshot’ sites, which scrape and publish mugshots, then charge the persons pictured varying amounts of ‘service’ fees to remove the photos, which quickly rise to the top of Google search queries for the person’s name.

This practice has been picked up by revenge porn sites. The first to do so was Craig Brittain, whose IsAnybodyDown site posted nude photos purloined using fake people on Craigslist personals ads, then used a fictional lawyer (“David Blade III”) to ‘negotiate’ with the site to take the photos down — for $250. (Brittain, to his credit, shut down his site and renounced the revenge porn business, although he’s never admitted to being David Blade.) Brittain’s efforts were replicated by UGotPosted.com, operated by Eric Chanson and Kevin Bollaert, who interposed a fictional company (“Change My Reputation”) to negotiate with their site to remove nude photos. After somebody tipped off PayPal to this scheme, “Change My Reputation” began soliciting payment by way of Amazon.com giftcards before shutting down entirely in September.

Today, a revenge porn site (which I will not name because it’s still active) demands that victims send $500 via Western Union to an individual in the South Pacific who likely acts as a middleman for the true operators of the website, while DMCA.com — otherwise a legitimate site — openly processes an “administration fee” to take down content for a site commonly used for revenge porn.

While credit card operators and Google are jointly evaluating their roles in unintentionally enabling these extortionate practices, the sites — deprived of the easiest methods of processing payments — will follow the revenge porn sites and begin using new methods of soliciting payment. While the larger sites may abandon the practice entirely (one would hope), scraping mug shots is not a difficult feat. The practice will continue so long as a single owner can continue finding new ways to process payments, even if for a short period of time, playing a long game of whack-a-mole while the larger competitors throw in the towel.

There are two simple solutions:

1. Police departments should stop posting mugshots publicly. The content largely derives from police departments posting booking photos en masse, whether the individual is later convicted, wholly innocent, or ever charged at all. Rather, the photos are published as a warning: don’t get arrested, because even if you’re not convicted, we’ll embarrass you. There’s little utility in publishing the photos: police could share the photos only with law enforcement officers as a means of identifying suspects. To sate the public interest, departments could continue to provide mugshots to media outlets or any member of the public willing to pony up a modest fee, creating a barrier to wanton scraping of free content by mugshot sites. To mugshot sites, even a modest fee would be cost-prohibitive to their business model, even if they could find a way to automate the process. Deprived of free content, mugshot sites will perish.

2. Call it as it lies: demanding payment to take down mugshots (or revenge porn) is extortion. The FBI has already taken the first step in identifying this practice as “extortion” and seeking victims, potentially the first step towards prosecution. To be sure, the application of extortion statutes (see, e.g., 18 USC § 875) is unclear in the internet context: is it extortion to solicit payment under penalty of continued publication of embarassing photos, once the cat is already out of the bag? I think so: even if I’ve already told Jim about your midnight rendezvous with your secretary, it’s still extortion if I offer to stop telling others who might be more invested, like your wife. Further, sites which create fake middlemen to ‘negotiate’ are likely engaging in wire fraud.

Until police departments stem the steady stream of mugshots in an extortionate attempt to get people to stop being arrested for petty crimes, these sites will continue to thrive, notwithstanding pressure from Google and legitimate credit card processors. In the meantime, law enforcement has plenty of tools to deter these extortionate sites.

Maybe the webmasters’ photos will even wind up on one of their former competitors’ sites.

Oh, Deer: Orange County, CA High School Forces Student to Remove NRA T-Shirt

CBS Los Angeles reports that Haley Bullwinkle, a sophomore at Canyon High School in Orange County, California, was ordered to remove a t-shirt promoting the National Rifle Association and depicting “a buck, an American flag and a hunter’s silhouette.”  The school took the action pursuant to its ridiculously overbroad dress code, ((This isn’t the first time Canyon High School has run into trouble with its students’ clothing.  In August of 2012, it nixed “Señiores and Señoritas Day”, an annual (and apparently officially-sanctioned) event during seniors’ week wherein students, as high school students are wont to do, often dressed in patently-offensive stereotypes.  I wager that the development and rigid enforcement of its dress code is an overreaction to that event.)) which prohibits, among other things:

Clothing or Jewelry that promotes or depicts: gang, drugs, alcohol, tobacco, violence, criminal activity, obscenity, the degrading of cultures, ethnicity, gender, religion and/or ethnic values. (In general, anything that is divisive or offensive to a staff member).

Canyon High’s principal emailed Bullwinkle’s father, stating, in part, that “The shirt had a gun on it, which is not allowed by school police.”  Note that the principal invokes, ominously, the authority of the school police – it’s the police, not administrators, who are enforcing this rule!  Nevermind that administrators wrote the dress code and that the principal, according to CBS, enforced it.  Pass the buck on the shirt about shooting bucks, if you will.

This dress code — and its application to prohibit a shirt promoting the NRA — cannot pass muster under either the First Amendment or California statutory protections for student speech. ((Notably, the dress code cites “Board Regulation #51321″ as the regulatory basis for its enactment.  That policy, if it exists, can’t be found among the online Orange County Unified School District Board Policies.  Perhaps the dress code meant to refer to BP 5132, which provides two options to OCUSD schools: require uniforms or ban gang-related apparel.  Unless a wildly expansive policy was enacted and is not online, Canyon High School’s dress code is outside the First Amendment, outside of the California Education Code, and outside even the OCUSD board’s policies concerning student apparel.))

While current First Amendment jurisprudence provides high school administrators some leeway in restricting student speech where it interferes with the educational process, it does not provide administrators an unrestricted ability to ban “anything that is divisive or offensive to a staff member.”  As Eugene Volokh pointed out when a West Virginia school overreacted to a similar NRA t-shirt in April, the Fourth Circuit Court of Appeals has held that a dress code banning “messages on clothing [...] that relate to [...] violence” likely ran afoul of the First Amendment.  To be sure, a prohibition against messages promoting violence (as in Canyon High School’s case) may be distinguishable from messages relating to violence (as in the Fourth Circuit case), although Canyon High’s dress code prohibits both depiction and promotion of violence.

Further, Canyon’s dress code is ridiculously overbroad, banning anything that offends any staff member and essentially granting officials unchecked authority to punish students for views they dislike. ((The principal’s justification that a t-shirt endorsing a particular political view (that gun owners have a right to bear arms) may be banned because it “promotes” gun violence may also be viewpoint discrimination.  I doubt that a t-shirt endorsing the view that guns should be outright banned would not be seen as ‘promoting’ gun violence, although it may well be prohibited under the dress code because it ‘depicts’ gun violence.  Perhaps this school is populated by other overly-sensitive staff members, ones who might be dedicated NRA members who would be happy to boot a teenager wearing an anti-gun shirt.  Such is the danger of subjective I-know-it-when-it-hurts-my-feelings policies addressing speech: any view can be silenced.))

Moreover, California provides statutory protection to student speech, beyond that provided to high school students by the First Amendment.  Education Code § 48950 provides, in part:

School districts operating one or more high schools and private secondary schools shall not make or enforce a rule subjecting a high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment [or the California Constitution].

The legislature, in enacting this law, specifically declared an intent that “a student shall have the same right to exercise his or her right to free speech on campus as he or she enjoys when off campus.”  There are some exceptions laid out in Education Code § 48907, but these largely track with well-defined exceptions to the First Amendment in general: obscenity, defamation, incitement to violence, and substantial disruption of a school’s orderly operation.  Wearing an NRA t-shirt approaches none of these boundaries.

In short, if you can wear an NRA t-shirt off-campus without a police officer measuring your wrists with shiny, uncomfortable metal, you can wear it on-campus without interference from overly sensitive high school administrators.

Farewell, Charles Carreon

As the Charles Carreon saga draws to an apparent close (as he has dismissed his appeal of the attorneys’ fees awarded against him in the Satirical Chas case), I was going to commemorate the occasion by expounding at length about the lessons of this yearlong affair.  After all, it was the careening Carreon mess that inspired me to start blogging in the first place.  I won’t, however, because Mike Masnick nailed it.  Go read it — I endorse every rage-inducing word.

But, because this blog started as a means to cover the Carreon saga, it should at least mark its end.  So, below, is Carreon’s dismissal, and likely one of his few statements on the affair that don’t originate on a blog that compares his critics to rapists.  The only thing I would add is the following, from a post in December that was, perhaps, premature:

“What is important is the strong message this will send to the censorious.  If you trumpet trumped-up threats of litigation against your critics, people like Ken White will put up the Popehat Signal seeking assistance for those in need, and attorneys like Paul Alan Levy and Cathy Gellis will answer its call.  If you leave your threat hanging in the air, there are people who will clear the air.  They won’t wait for you to file suit; they’ll force you to defend your censorious threats.  And you will wind up paying with more than your reputation*.

Charles Carreon Dismisses Appeal in Satirical Chas Case by Adam Steinbaugh

Modesto is Not That Sweet: Junior College’s Free Speech Zone Prone to Abuse

California’s public Modesto Junior College has drawn some uncomfortable attention after it unironically told a student that he could not pass out copies of the Constitution on Constitution Day.  According to a Modesto JC campus security officer and administrator, the student could only pass out constitution-like literature if he reserved, in advance, a spot on a tiny concrete slab.  And he could only do so if nobody else was using the patio for their own speech, so good luck having any competing speech to further a debate that might educate anyone by contrasting ideas.

Modesto JC's free speech zone (can you see it?), courtesy of FIRE

Modesto JC’s free speech zone (can you see it?), courtesy of FIRE

Today, Modesto JC took to Facebook to issue this statement:

“The Yosemite Community College District’s (YCCD) colleges have free speech areas on campus for activities such as distributing materials on campus. In addition, people can distribute material in the areas generally available to students and the community as long as they don’t “disrupt the orderly operation of the college.” In the case of the YouTube video, it did not appear that the student was disrupting the orderly operation of the college. Therefore, we are looking into the matter. The administration of the YCCD supports the peaceful distribution of the Constitution and other materials on campus, which is why our colleges support Constitution Day with activities each year.”

Did you catch that? Modesto JC has a free speech area within a free speech area.  There is, apparently, no definition or policy to delineate when speech should take place in the “free speech area” and when it’s okay for students or faculty to express themselves outside of the “free speech area.”  In fact, the standard by which Modesto JC expects to limit student speech outside the “free speech area” — conduct which disrupts the orderly operation of the college — is, more or less, the legal standard by which public colleges may limit speech activities.

If that standard applies to the broader campus (as it should), what, then, is the purpose of the free speech area? Certainly Modesto JC doesn’t believe that students within the “free speech area” will be able to engage in speech that does disrupt the orderly operation of the college, so long as it takes place on a miniscule concrete patio.

Speech policies, and applied concepts of the First Amendment, aren’t easy to understand, whether by lawyers, administrators, or students unfamiliar with their rights.  Blanket policies applied by people without an intricate understanding of student speech rights will be misunderstood and misapplied.  At times, it’s a good idea to work with student speakers — protesters, pamphleteers, and the like — in order to facilitate student speech while minimizing disruption of education or necessary campus administration. But setting aside in advance a “free speech area”, a box into which all student speech shall disappear, can only lead to unnecessary administrative interference or, worse, the suppression of speech administrators might find annoying or contemptible.  The silencing effect may not be the result of malicious intent, but of adherence to enforcing unnecessary policy for the sake of policy.

Modesto JC’s “free speech area” is superfluous. Designating certain areas of campus as a “free speech area” without regard to the circumstances — the type of conduct at issue or whether the students in the “area” will be able to have their message heard by their intended audience — is a policy that can only lead to abuse, as it did at Modesto JC.  If a college is to impose any policy impacting student speech — aside from “student speech is welcome on any part of campus so long as it does not significantly interfere with routine educational operations of the college” — the college bears the burden of actively training its administrators to facilitate as much student speech as possible.  That is, administrators must be educated to further their students’ education, in or out of the classroom.

If it cannot afford to provide such guidance to administrators, then a college has no business leaving them to their own devices.  Unless they want to wind up in the news or in a Federal court, of course.

Judge Orders Twitter to Unmask Parody of City Councilman for Criminal ‘Impersonation’

Via The Dispatch of Starkville, Mississippi, a local judge has apparently ordered Twitter to reveal account information relating to a parody account of David Little, an Alderman (city councilman to us west-coasters) for the city of Starkville.  If the order by Judge Jim Kitchens is as reported by the Dispatch, I doubt the order can withstand First Amendment scrutiny, and perhaps opens those pursuing it to civil liability.

(While I focus on dry legal analysis here, the Dispatch article is worthwhile for raising this fun question: why is someone pretending to be a journalist and giving the cell phone number of a detective investigating the case to one of the parody account users?)

The Dispatch reports:

The order is related to a Starkville Police Department criminal investigation into the satirical @DavidLittleBOA Twitter account, which documents show was later changed to @DavidLittleFake.

No charges had been filed in the case as of Tuesday.

The order, signed by Judge Jim Kitchens, cites Miss. Code Annotated 97-7-43[.]

The cited statute reads:

Whoever falsely and willfully assumes or pretends to be an officer or employee acting under the authority of the State of Mississippi or any department, agency or officer thereof; or of any county, municipality or any other subdivision of the State of Mississippi, or of any department, agency or officer of such county, municipality or subdivision, shall be guilty of a misdemeanor and punished for each separate such offense by a fine of not more than five hundred dollars ($500.00) or by imprisonment of not more than six (6) months in jail, or by both such fine and imprisonment.

As written, the statute is substantially overbroad, depending on how “acting under the authority of” is interpreted.  In many cases, this won’t be an issue: the defendant might be suspected of pretending to be a police officer, for example, in an attempt to induce others to rely on his status as a police officer (or other official).  That is not the case with a parody account on Twitter: the intent is to impugn and assail the official, not to convince the public that he’s issuing edicts on Twitter.  How, exactly, can an alderman act under the authority of the state on Twitter?

If the statute is not interpreted to encompass a requirement of proof of either some cognizable harm or an intent to induce harm, it likely runs afoul of the recent United States v. Alvarez, wherein a plurality of the Supreme Court struck down the Stolen Valor Act, which prohibited false statements that the speaker had been awarded various military honors.  There, as here, the law did not require any proof of an intent to induce some harm or a showing of actual harm.  Simply because a statement is false does not mean it is unprotected speech.  Sometimes, as in parody assailing an elected official, the false statement is deserves protection because it is false.

It may very well be that the parody account made some objectively false and defamatory statement about Alderman Little.  We don’t know because the account was deleted after the criminal investigation began.  If there were such false statements, made with malice, that damaged Little, he could certainly ask the court to unmask the parody account in a civil action.

But that might require application of the Dendrite approach to determining whether an anonymous online user should be revealed by judicial process.  That approach requires, among other things, notice to the prospective defendant, specifying what act the defendant engaged in, and weighing whether the plaintiff’s claims outweigh the speaker’s interest in remaining anonymous.

I doubt anything like that standard was followed in the criminal proceedings, given the absurdity of using the impersonation statute as a basis for unmasking the parodist.  I am, however, attempting to obtain a copy of the documents and court order, and have sought comment from Alderman Little.  I’ll update this post should either be forthcoming.

Revenge Porn’s Hunter Moore Ordered to Pay $30,103.39 to Storage Wars Star Brandi Passante

In June, reality television star Brandi Passante won a default judgment against Hunter Moore for, among other things, trademark infringement and defamation.  Moore, who bears a heavy crown as most hated person on the internet for attempting to legitimize revenge porn, had responded to the lawsuit only by — you don’t want to click this link at work or anywhere else — sending Passante’s lawyer a picture of his dick.  And, of course, quietly removing what he had claimed was a nude video of Passante (it wasn’t) after the judge suggested that the U.S. Marshals intervene.

After Moore ignored the lawsuit and lost by default — a curious legal strategy for a self-proclaimed millionaire — the judge awarded Passante $750, a sum Gawker labeled “paltry,” on the basis that Passante hadn’t demonstrated her actual damages.   The court also awarded Passante attorneys’ fees and suggested that she submit a declaration substantiating her actual damages.

While it remains to be seen whether Passante will describe how much the court should really give her, she did seek an order that Moore reimburse her for the attorneys’ fees.

The court obliged, awarding Passante $30,103.39 — the order after the jump.  Based on some rough calculations, that means Moore has now been ordered by various courts to pay $294,022.89, the lion’s share of resulting from James McGibney’s defamation lawsuit against Moore.

It’s unlikely that Moore has many assets, given that he can’t seem to find a lawyer to respond to any of these lawsuits.  Nevertheless, happy hunting, judgment creditors.

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Comcast Claims Copyright Over Prenda-Related Subpoena

Excerpted from a recent Comcast staff meeting held, inexplicably, in a public n IRC chat room:

<comcast_rulez36> you guys been paying attention to the Prenda case?

<Comcastaway> dude

<Comcastaway> I heard Mark Lutz didn’t even show up for his deposition today

I lost track after Popehat went off the radar.  Is he in jail or something?

<comcast_rulez36> No man, he just posted an update

<comcast_rulez36> But we just got to nail ‘em.  You know how we usually make it difficult for copyright trolls to get subscriber information? Well, when I got a subpoena for John Steele, lol.

<TimeWarnerSUX> wait, why does his IP matter?

<comcast_rulez36> Because it shows that Prenda was torrenting its clients’ obscure porn movies so that it could sue them.

Wow..  That’s insane.  But a pretty good way to fight piracy is to encourage piracy amirite?

<comcast_rulez36> I know.  Can this get any more bizarre?

<TimeWarnerSUX> I just got the craziest idea dude

You guys wanna try to jump the sharkmp4?

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Prenda ‘Client’ AF Holdings Hit With More Sanctions Over ‘Frivolous’ Copyright Claims and ‘Coercive’ Tactics

In the Northern District, Prenda’s “AF Holdings” client has been hit with $22,531.93 in sanctions for bringing a frivolous copyright claim, with a goal of deterring future abuse of copyright law to coerce settlements.

According to Judge Chen — who is the same judge who sanctioned Charles Carreon for his abusive litigation in the ‘Satirical Chas’ First Amendment case — AF Holdings’ claims were frivolous for a variety of reasons.  (I use “AF Holdings” and “Prenda” interchangeably for obvious reasons.)

First, Chen considered the circumstances surrounding the ‘Alan Cooper’ issue.  Chen dismisses Prenda’s argument that Alan Cooper’s “repudiation” of his signature on various documents was a conspiracy concocted by the EFF and other nefarious social terrorists, saying the argument is “sheer speculation” backed by little (if any) evidence.

Chen also brushes aside Prenda’s alternative argument that, even if Cooper’s signature on copyright assignment documents were forged, it wouldn’t matter because only the assigning party’s signature is needed to have a valid transfer of copyright interest.  Prenda’s argument misses the mark, according to Chen, as the determinative issue is whether AF Holdings had standing to bring a claim in Federal courts at all.   I confess that I don’t quite understand this distinction, but will update this post once I’ve had time to consider it.

Second, Chen follows a number of other courts in concluding that Prenda’s investigation in identifying the alleged BitTorrent user was unreasonable in that Prenda named “the alleged infringer simply because he best fit the demographic that is attracted to its content.”

Third, Chen assailed Prenda’s conduct in litigating the matter, from filing a motion to compel responses when the defendant’s responses weren’t yet due to crying foul over being ordered to post an undertaking.  Chen also suggests that Prenda abused the litigation process in seeking a stay:

AF was likely motivated to file its motion to staydiscovery in February 2013…  in order to keep its 30(b)(6) deposition from going forward; to deprive [the defendant] of evidence needed to oppose AF’s then-anticipated motion to reconsider the undertaking ruling; and to prevent adverse information from being brought to light which could be used against it in the proceeding before Judge Wright of the Central District of California.

Finally, Judge Chen found that AF Holdings was not motivated to protect a legitimate copyright, but to coerce settlements — perhaps even going so far as to upload the files to BitTorrent themselves:

[A]s indicated by the findings made by Judge Wright in his case, AF does not appear to have been motivated to file suit in order to protect the copyrighted work at issue.  Rather, AF’s business model was to sue people for downloading pornography in order to coerce settlements. [...]  [Defendant] has offered evidence – the Neville declarations – which indicate that persons affiliated with AF used the alias “sharkmp4” to post links on the Pirate Bay website to many of the copyrighted works in order to induce users to download the works so that they could then be sued for copyright infringement. This evidence corroborates Judge Wright’s finding that the motivation for this and similar suits is to sue and coerce settlement. [...] [N]otably, what AF has not done is offer any counterevidence such as a declaration from Mr. Steele in which he denies that he is “sharkmp4” or other evidence that AF did not take steps to induce users to download the subject works. This evidence could easily have been offered by AF as a part of its opposition brief. AF’s failure to submit any factual denial under oath is telling.

Prenda’s Steele (Unsurprisingly) Loses ‘Due Process’ Bid

Last week, Prenda’s John Steele faced Judge Wright and found his voice. Steele alleged that opposing counsel Morgan Pietz had purposefully failed to serve him with a series of filings. That hearing did not go well for Steele.

Wright’s order denying Steele’s motion is here. True to form, Wright sardonically informs the self-represented Steele of the resources available in the court’s pro se clinic — a place usually reserved for crazy prople.

The court gave Steele’s initial position short shrift, having denied the original motion out if hand and without explanation. While the Federal Rules of Civil Procedure permit a court, in cases with an “unusually” large number of parties, to order that motions be served only on particular parties to the case, this was not such a case and the court had made no such order.

But Steele did himself no favors by attempting to make a mountain out of a molehill, seeking sanctions for what appeared to have been an oversight with no actual impact on his rights. Stripped of the hyperbole, and with the evidence that Steele was actively involved in coordinating defenses, Steele’s argument was essentially that he didn’t get a paper copy sent to an address that doesn’t exist.

Steele faces sanctions for his motion, and it’s quite clear from Wright’s order that the only dispute will be over the amount ordered.

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