Civil Procedure Fun!

March 7, 2011

For those of you who are not lawyers, you can play too.

A plaintiff files a defamation lawsuit. The plaintiff lives in California. The defendant lives in California too — in fact, just a few miles from the plaintiff. Where do you file the suit?

A) California
B) California, because you are not an imbecile
C) California, because you are not an imbecile, and you have ethics
D) Virginia

If you answered D, you are “Internet defamation lawyer” Domingo J. Rivera!!!! (Or a reasonable facsimile).

Okay, so what am I talking about?

Public Citizen reports:

Usha Rajagopal, a San Francisco cosmetic surgeon, has tried to use cosmetic surgery of a legal sort to improve the appearance of her online reviews. She is under discipline by the California Medical Board because of the sloppy administration of anesthesia that put one of her patients in a vegetative state. She was also the subject of a devastating article in the San Francisco Weekly which explained that glowing reviews that helped give Rajagopal a favorable ranking on Google search for plastic surgeons in San Francisco, with five stars suggesting that her patients love her, are the product of her having hired a firm that wrote phony reviews.

Not satisfied by adding favorable reviews, Dr. Rajagopal is apparently intent on extirpating negative reviews as well. After several members of the public placed comments on Google maps about her situation, Rajagopal sued the commenters as Doe defendants, alleging defamation, in an apparent effort to remove the negative comments from her public profile. (source)

Public Citizen filed a motion to quash Rajagopal’s attempt to unmask her anonymous critics.  Here’s the Complaint in the case.

This is why I give money to Public Citizen, and you should too.

Twitter looks out for leakers

January 11, 2011

By J. DeVoy

A common feature of criminal and civil actions against unknown defendants is the need for subpoenas, warrants, or other court orders to ascertain John (or Jane) Doe’s true identity.  For a long time, these have gone unchallenged by companies seeking to mind their own business, avoid the cost and consequences of litigation – or taking a position in general – and the burden of self-defense has fallen onto individual speakers.  Twitter, however, is one of few firms to stand up for its users.

In civil cases, subpoenas to entities with identifying information such as Google, Yahoo, Microsoft (hotmail) and other sites with users’ real names and contact data can result in the notification of a targeted user.  When Google receives a subpoena for information about a gmail or blogger user, Google can inform him or her that it has received a subpoena for his or her information.  This allows the targeted individual to file a motion to quash the subpoena in the district from which it originates, preserving his or her anonymity.

In criminal matters, though, court orders for this data is often accompanied by a gag order.  Because of the more pressing concerns entailed in criminal matters, the concern is that any notification to the target may compromise the investigation.  As a result, the gag order keeps the court order’s recipient from telling the target that it has received a legal request for his or her information.

Recently, Twitter was contacted by federal authorities seeking information about a variety of users connected to Wikileaks, including founder Julian Assange, accused leaker Pfc. Bradley Manning, ex-WikiLeaks spokeswoman Birgitta Jonsdottir and WikiLeaks activist Jacob Appelbaum.  This order for information was accompanied by an above-described gag order, which Twitter challenged.  Twitter won.  This victory enabled twitter to inform individual speakers about the government’s orders for information and move to quash them on their own.

While Twitter could have moved to quash the orders in tis own, this is still a victory for the WikiLeaks crowd.  In an environment where Bank of America, Visa, Mastercard and PayPal have turned against them, Twitter did something to protect their interests.  Even if this legal intervention is saved for special occasions, Twitter’s willingness to step into the legal arena is heartening — especially for an unprofitable service.

Likely Backlash Against Assange’s Self-Righteous Crusade

December 17, 2010

by Charles Platt

I’m getting an uneasy feeling when I watch Julian Assange using pretentious phrases such as “my philosophy” and “my work.” (See his latest interview, here.) It’s the same feeling I had when I saw the World Trade Center going down. A feeling that I am watching a golden opportunity for people in power to take away some of my freedoms.

Assange’s self-righteous crusade is sufficiently defiant, and is being done in such a pompous style, some kind of retaliation seems inevitable. Already the UN is on record as wanting to “harmonize” efforts to regulate the Internet, in response to Wikileaks. (See this news item.)

I am old enough to remember how publishers got rid of US laws regarding pornography. They fought a carefully executed, incremental campaign. Freedoms tend to be won this way, slowly but relentlessly, in small steps. Media whores who make grand gestures are not useful in this process. They just provide more fuel for backlash.

We enjoy freedoms online because resourceful groups such as ACLU and EFF fought and won test cases. How unfortunate it would be to see those freedoms squashed because of a prima-donna whose “philosophy” and “work” have been of negligible value so far. It’s important to remember that he is really just another content aggregator, and the material that he has revealed has not been of critical significance. Certainly not important enough to justify a battle that we are likely to lose.

Anonymity takes center stage at TED

October 28, 2010

By J. DeVoy

Chistopher “m00t” Poole, founder of the site that shall not be named, discusses the value added by Anonymous internet use.

Illinois appellate court unmasks anonymous commenters

August 17, 2010

By J. DeVoy

The Illinois Appellate Court’s 3d District recently overturned the LaSalle County circuit court’s decision to preserve online anonymity for two commenters.  In the comments section of an Ottowa Times’ online article, the anonymous parties accused the plaintiffs, a local couple, of making bribes in order to secure favorable zoning treatment for land they owned.

The dispute’s subject matter raises interesting questions of public importance and privilege for the commenters’ statements.  Still, the commenters’ accusations of the officials’ corruption through accepting bribes calls for a more nuanced argument than merely claiming the statements were mere opinion.  The Tribune and other news organizations filed amicus briefs in the case, arguing in favor of commenter anonymity for the sake of freer, more open discourse.

If appealed further, Illinois will have a chance to weigh in on the standard for unmasking anonymous internet commenters.  Many states have followed the Delaware Supreme Court’s standard in Cahill v. Doe, which requires a plaintiff to present evidence that could defeat a defendant’s motion for summary judgment in order for the court to issue a subpoena that would unmask a Doe defendant.  Though a higher standard than bare “good cause,” all that is required to oppose a motion for summary judgment is an issue as to some material fact.  While some facts are required under this standard, and it prevents devious plaintiffs from baselessly denuding defendants of their anonymity, it is not a particularly high threshold to meet.

Cahill is not the undisputed measuring stick for determining whether anonymity should be preserved or stripped from an internet commenter, though.  In Dendrite International v. Does, the New Jersey Appellate Court set forth a five-factor balancing test for compelling an ISP to unmask an anonymous poster.  The factors considered are:

1) The plaintiff must make efforts to notify the anonymous poster and allow a reasonable time for him or her to respond;

2) Plaintiff must identify the exact defamatory statements made by the poster;

3) The complaint must set forth a prima facie cause of action;

4) The plaintiff must bring forth sufficient evidence for each element of its claim; and

5) the presiding court must balance the defendant’s First Amendment right of anonymous free speech against the strength of the plaintiff’s prima facie case and the necessity for the disclosure of the defendant’s identity.

There is evidence that the multi-factor Dendrite case is becoming the favored standard for evaluating subpoenas that would unmask anonymous defendants.  The Arizona Appellate Court remanded the case in Mobilisa v. Doe to the trial court with specific instructions to apply the Dendrite test, as its application of the Cahill standard was improper.

Assuming further litigation arises in this case, it would be an ideal time for Illinois to adopt the Dendrite test or reinforce that standard’s primacy within the state if it has only scant support.  The Cahill test isn’t bad, per se, but lacks the refinement and explicit First Amendment considerations found in Dendrite’s multifaceted evaluation of the subpoena and its consequences.

The scenario that everyone should fear is the Illinois court bucking the nation and fashioning its own standard, creating yet another test to be evaluated by courts that have yet to decide this issue on their own.  While the Illinois courts would be within their discretion to create such new tests, it is unnecessary; the current tests work fine, even if one is superior to the other.  For Illinois to create a new standard for the sake of demonstrating its own perceived legal significance – at least relative to New Jersey and Arizona – hundreds of truly innocent defendants would pay the cost of divining which standard should apply — a particularly cruel fate for the SLAPPed.

Coalition Requests Inquiry into Hate Speech

June 1, 2010

by Charles Platt

The National Hispanic Media Coalition, which contains groups with harmless or even benign-sounding names such as Free Press, the Media Access Project, Common Cause, and the Prometheus Radio Project, renewed its demands earlier this month for the FCC to investigate “hate speech” and “misinformation” in the media.

“Hate has developed as a profit-model for syndicated radio and cable television programs masquerading as ‘news’,” they write. And as for the Internet, it “gives the illusion that news sources have increased, but in fact there are fewer journalists employed now than before . . . . Moreover, on the Internet, speakers can hide in the cloak of anonymity, emboldened to say things that they may not say in the public eye.” Well, obviously we can’t have THAT. Anonymity was okay in the Federalist Papers, but–not here, apparently (you can access their document here).

Meanwhile the FTC has released a “staff discussion draft” of ideas to “save” print journalism by innovative strategies such as exempting newspapers from antitrust regulations or funding them with a tax on consumer electronics. This is all very tentative, of course–for now.

The man-hating crowd’s blood lust strikes again

January 12, 2010

By J. DeVoy

I have no issue with feminists.  In this classic case of taking it too far, however, certain women have descended upon bloggers I frequently read and link to here — Ferdinand Bardamu and Roissy — and are harassing them for promoting “anti-woman” views.  This is correlated with Roissy’s (brief, thankfully) cessation of writing and closely timed with Bardamu taking a step back from daily blogging.  Hopefully it isn’t causative, though it seems unrelated to Bardamu’s slowdown.  Worse, this probably isn’t the first time something in this vein has happened, but I’m noticing it only because it affects blogs I liked.

This attack seems to have two prongs.  First, a jilted commenter from Roissy’s blog has started a campaign to out him; the efficacy of these efforts is unknown.  Because outing anonymous or psuedononymous people is uncool, these materials won’t be directly linked to here, but intrepid readers can easily find them from other web sites referenced in this piece.  Second, and with greater reach, Denise A. Romano, M.A., Ed.M., has been harassing other bloggers with the old vanguard of illogical attacks, shame.  I will not be half surprised if she finds her way to this blog’s comment section, though I hope she does not.  I question whether other Ed.M. holders who read this blog share Romano’s views and appreciate her methods, but I digress.

At the heart of this debate is “game,” the attraction-building strategy I previously discussed and predicted would be subject to attempted suppression because it’s not politically correct.  Game comes in two broad varieties, namely for men and for women.  At its core, it’s based on evolutionary psychology principles that allow its user to present himself or herself in the most desirable possible light.  It will not, however, change the substance of the user.

Romano and other activists contend that game is a misrepresentation that harms women.  First, how does this harm women?  Sociopaths who use these techniques aren’t hurting women because of game – they’re hurting women because they’re sociopaths.  Game is a tool like a hammer, or a screwdriver, or an alligator, and can be used for good or evil.  Second, game itself doesn’t entail misrepresentation.  I doubt Romano would criticize a woman for trying to make her partner feel like a priority to her and attempting to cook well for him as a relationship-seeking strategy, despite the fact that she may be busy or indisposed to cooking.  A man shouldn’t be penalized for employing strategies with proven effectiveness to make himself more desirable to women so long as he’s not expressly lying about material facts such as his marital status, any STDs he many have, or so on.  Romano’s argument essentially considers all styles of personal presentation a lie, which is beyond asinine.

Tolerance means you shut up.

The second layer of this action, beyond protesting game itself, is the punishment of people who provide information about it.  This should be a realm of intense interest for lawyers, law students and anyone else in a demanding field that consumes all of their time and attention, sucking the marrow out of your personality.  Success in life and particularly with women boils down to being cool and interesting.  Generally speaking, lawyers and law students are not cool and certainly not interesting.  As engrossing as we may think it is to debate the scope of the commerce clause and toothlessness of Fed. R. Civ. P. 11, NOBODY CARES.  It’s not a personal failing or defect — just life.

Since at least the sexual revolution, men have pondered why women “only like jerks and assholes”; most recently, the term “douchebag” has been reflexively attached to men who do better than average with women.  My friends in similar educational and life situations have made identical observations, as women acquaintances who were college graduates would furiously rationalize their decisions to date lesser men.  “Lesser” isn’t some petty and idiosyncratic distinction of attending a crapp(y/ier) school, having bad grades or being poorly traveled, but entails clear demarcators of failure such as having children he didn’t support, a criminal record with at least one felony conviction, repeated and flagrant infidelity, and even physical abuse.  From there, two groups emerged within my acquaintances: Those who chose to do something about it, and bitter losers who thought they would win in the end if they never changed and attributed their failings to the fecklessness of women.

Among the former camp, Roissy was a must-read, as he almost specifically reached out to too-driven educated people who spent all their time in high school, college and beyond racking up resume lines without learning how to date, navigate the sexual marketplace, and get out of their own heads.  Truly, the advice there was instructive for people who thought their accomplishments in life would be sufficient to find a desirable and loyal companion, rather than part of a package of factors — sometimes a troublingly small one.  Learning how to use attraction-building techniques while capitalizing on the prestige of a decent education and upward social mobility it demonstrates — or demonstrated, considering the current economy — gave options to men who previously found relationships of varying enjoyability through personal acquaintances and serendipity.  These skills were also used without falling into the stereotypical category of effete, medallion-wearing “pickup artists” mocked in the media.  Anecdotally, these techniques are even more effective on intelligent women who have the intellectual horsepower to revel in harmless teasing and the challenge of a man who doesn’t reflexively accede to their demands.  Indeed, a woman’s receptiveness to these tactics may be a good proxy for intelligence, making this skill even more important upon leaving the bubble of higher education.

To the extent maintaining civilization is a common concern, this kind of information should be disseminated more freely to men; indeed it should be mandatory at good universities so that our most promising minds aren’t given the run-around by women looking for more than a handout.  Granted, this isn’t representative of all women, but women with options, like men with options, explore them; there are far fewer women with no options than men in that situation.  The engineers, accountants, actuaries, dentists and lawyers this country relies on have no reason to settle for the opposite gender’s table scraps, but many don’t know how to do better.  Now they’re being attacked on both fronts, branded as liars and misogynists for using effective techniques to meet desirable women, while the purveyors of such information are subject to life-ruining character assassination attempts by angry strangers.

Admittedly, this is a lot of information and its consequences seem trivial.  Blogs shutter and people stop writing all the time, often for personal reasons.  The issue is that only a small memorial will result, with no conclusive action taken.  I don’t know what that decisive action would entail, though, beyond educating men about the inherent gender biases in law, especially the family court system, and the importance of resisting intimidation.  I once had faith in the lofty rhetoric of Martin Luther King Jr., plagiarism aside, that the arc of the universe would right these wrongs and bring justice to all.  With age I’ve realized that’s crap.  All too often the individual right to be heard is determined by those with the most popular support.  To their credit, men who care about their gender and its fate have been marshaling evidence and intellectual firepower to support their views on the issues facing them.  Unfortunately, it may be time for them simply to scream louder.