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DEAR LAWYER, PLEASE AMEND YOUR PETITION AGAINST …

Revenge Porn

DEAR LAWYER, PLEASE AMEND YOUR PETITION AGAINST PINKMETH AND TOR

July 11, 2014

 [UPDATE:  Rumor on the Tweet-street is that claims against Tor are being dropped.  See @meantxlawyer]

On June 24, 2014 a lawsuit was filed in the District Court of Denton County, TX against Pinkmeth.com and The Tor Project, Inc.  The cause of action relates to nonconsensual pornography that was published on the revenge porn site Pinkmeth.com.  The plaintiff – presumably at the advice of her counsel — is treading on very shaky ground with her selection of defendants and claims.

The plaintiff is represented by the polarizing Jason Van Dyke, Esq. The claim is for $1million in damages against the defendants.   This is not the first standoff between this exact plaintiff-attorney duo against Pink Meth.

As an attorney who represents and advocates for victims of nonconsensual pornography and other tech-related sexual privacy invasions, I have some recommendations that, if taken, could improve Van Dyke’s chances of success and/or minimize the potential for bad precedent that would worsen things for revenge porn victims.  It’s not too late to overhaul your petition!

This post relies on the facts provided in the petition only — and not all the doxxing of the law firm and plaintiff available on line.  The judge reading this complaint won’t be doxxing.

Claims against Pink Meth:

1)    Intrusion of seclusion

2)  Public Disclosure of Private Facts

3)   Alternative Theory – Intentional Infliction of Emotional Distress” with exemplary damages

Claims against Tor:

1)  Civil Conspiracy (not sure why this claim isn’t also against Pink Meth since the claim is that these two companies conspired)

The claim also seeks temporary and permanent injunctive relief to do the following:

1) [O]bliterate” Pink Meth

2) Restrain all registrar and hosting companies from providing internet-related services to Pinkmeth

3) Require that all search engines remove Pink Meth and pornographic images of the victim from their search engine results

4) Restrain all social media websites from permitting “Defendant” to utilize their services.  (I assume he’s talking about Pinkmeth Defendant.)

SO THESE ARE MY RECOMMENDATIONS TO MR. VAN DYKE

I.  DEMAND INJUNCTIVE RELIEF FOR PERMANENT REMOVAL OF THE PICTURES

In all cases permanent removal of the images is the victim’s highest priority.   It’s totally bizarre to me that this relief is never requested.  Because it wasn’t requested I mistakenly assumed that the pictures must have been taken down after the 2012 lawsuit.  However I was recently informed that they ARE still up. The complaint seeks exclusion of the pics from search engines, but never demands they be removed from the website immediately and permanently.

II.  INCLUDE FACTS

There’s no information about the images, who took them, who received them, who uploaded them, how many there were, how many views there were, how long they were up, the date they were removed, how they came to be up in the first place, the comments, if any that the pictures generated, description of the pics (vague is fine), metrics about the number of Pinkmeth consumers who contacted her, the type of contacts (e.g. Twitter? Facebook? Email?), quotes from those contacts, the harm caused to her romantic relationships, education, online and offline existence, emotional and physical health, family relationships, friendships; details about the relationship between Pinkmeth and the victim, the victim and Tor, Pinkmeth and Tor.

III. INCLUDE A VICTIM

The victim is all but absent in the complaint too.  Almost to the point that it like she’s a mere vehicle for this attorney’s wishful heroics. There is no information about her besides one line to establish jurisdiction and another that says where she goes to school.  Oh, and that she has a gun.  These cases rely on harm to the victims.  She ghosted in this petition though.   And the conclusory language about her suffering isn’t likely going to withstand a motion to dismiss if this case gets litigated.  Nor is the language about her expected future harms (i.e. difficulty in finding employment in criminal justice) adequate to support a claim of intentional infliction of emotional distress.

IV.  INCLUDE THE ORIGINAL DISTRIBUTOR AS A DEFENDANT BECAUSE THE CDA IMMUNIZES EVERBODY ELSE

Clearly the attorneys’ vendetta is to demolish Pink Meth.  There’s no pretense about that.  He says he needs “an all-encompassing order designed specifically to cripple Pinkmeth.”  However, just to keep up appearances, sue the original distributor too.  That’s what sparked everything.  That guy – yes, I’m assuming he’s male — is never even referenced.  In Jane Doe v Myspace, (528 F. 3d 413 (2008)) the fifth circuit bristled hard when the plaintiff didn’t include as a defendant the party who actually posted the content.  Embracing the fourth circuit case of Zeran v Am. Online Inc. (129 F.3d 237(1997)) the fifth circuit says:

“Parties complaining that they were harmed by a Web site’s publication of user-generated content have recourse; they may sue the third-party user who generated the content, but not the interactive computer service that enabled them to publish the content online.  See [Zeran] At 330-331 (‘None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. . . .Congress made a policy choise, however, not to deter harmful speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.’).”

V.  DON’T SUE TOR

Background about Tor:  Tor is a virtual circuit system that enables users to communicate privately and securely on the internet without being tracked.  It’s used by some people and companies to protect their data and not be included in traffic analysis.  It’s used by journalists to connect with whistleblowers and individuals concerned with online privacy intrusions, employees of non-governmental organizations to privately communicate in repressive countries without being tracked, and furnishes chatrooms for people dealing with sensitive topics (e.g. rape, illness), and even the government to spy without having their own IP address available.  It’s also used for extremely dangerous purposes – the exchange of child pornography, as a marketplace for illegally trading in drugs, fire arms, sex.  You can buy hacking services, fake IDs, read fanfiction about sex with felines, etc.

There are a number of reasons not to haphazardly sue Tor, some of which I’ll discuss below. For starters, revenge.  Tor’s army of users and supporters will seek revenge on anybody who tries to sue.  The doxxing and cyber-terrorism will be so deep they’ll report on the contents of the diaper you wore on your second birthday.  They’ll also outlawyer any human being and have the EFF and ACLU behind them.  Lee Rowland, Esq. could flick this case out of court with less effort than a mosquito from her arm.

Secondly, without a doubt Tor is protected by the CDA.  No question.  Black and white.  My dog knows this. Texas has anti-slapp laws.  The plaintiff’s bill will be big.

Even notwithstanding those issues, the claim against Tor won’t work.  The claim against Tor is for civil conspiracy (i.e. Tor conspired with Pinkmeth to carry out its tortious or unlawful conduct).  A civil conspiracy is an agreement together with an overt act to do an unlawful act or lawful act in an unlawful manner.  This uncommon tort is used by plaintiffs to draw into the lawsuit a defendant who doesn’t have a direct relationship with the plaintiff.  Usually the plaintiff is motivated by the deep pockets of the seemingly unassociated defendant.   In this case, the plaintiff seems more motivated by the sole desire to cripple anything that touches Pinkmeth.

As explained by James D. Pagliaro, a civil conspiracy claim is doomed if the plaintiff is not successful with the underlying tort.  “Failure to establish proof of each element of the underlying tort should doom a conspiracy claim based on that same act.”  So, essential to any tort involving civil conspiracy one must “focus the court’s attention to where it properly should be placed, on the underlying act, and not simply the existence of an alleged agreement.”

Van Dyke’s underlying privacy and Intentional Infliction of Emotional Distress (IIED) torts against Pinkmeth aren’t likely to succeed, and on that basis, the conspiracy claim against Tor is doomed.  There also is a shortage of facts relating to a conspiracy.  But even so, rather than focusing on Tor’s role in those underlying torts, though, the complaint says that Tor’s culpability relates to the anonymity Tor fosters which shields Pink Meth from civil and criminal liability.  Yet, no claims in the petition reference this shielding issue.  So the underlying thing he’d have to prove is something that isn’t (nor should be) a claim in his petition.

The anorexic complaint never even states that Tor and Pink Meth were affiliated at the time the cause of action arose.  We can’t know this unless we know whether the pictures are still up and if they remained up when Pinkmeth became accessible through Tor. As background, Pink Meth was sued by this plaintiff and attorney in 2012 and like any pox, it went dormant for awhile before its recent outbreak resurgence, now accessible through Tor.  (Although I haven’t tried hard, I don’t think Pinkmeth is accessible to those who don’t have Tor access.)   I’ve been assuming the pictures have not been up because, as I lamented above, the petition does not seek injunctive relief to have them removed.  However, a dirty friend of mine informed me that they were still up as of July 9, 2014.

VI. APPLY VALID CLAIMS AGAINST PROPER DEFENDANTS.

Let’s look at the claims.

A) INTRUSION UPON SECLUSION (TX)

The tort of unwarranted intrusion upon seclusion is proved by showing: (1) an intentional intrusion, physical or otherwise, upon another’s solitude, seclusion, or private affairs or concerns, (2) the intrusion would be highly offensive to a reasonable person, and (3) the person suffered an injury as a result of the intrusion. Robinson v. Brannon, 313 S.W.3d 860 (Tex. App. Houston 14th Dist. 2010).  59 Tex. Jur. 3d Privacy § 14.

Normally it’s human beings and not anonymous websites that intrude upon one’s seclusion. Claiming that the website intruded upon the victim’s seclusion is wishful, but not sensible lawyering. If the lawyer is going to be so bold as to forge new legal ground claiming that the liability for such an intrusion falls upon the website that hosts the material, he damn well needs to back that up.  Instead, the complaint reads that “Pinkmeth gained unauthorized access to nude photographs constituting the property of Plaintiff and posted them on the world wide web.”  I’m totally confused.  It actually reads as though Pinkmeth obtained the pictures through hacking.  If so, forgive me, Van Dyke.  And I also, retract the part about the absent human being and CDA immunity, if indeed the human being was an employee at Pinkmeth.  However, nowhere else in the complaint mention does it mention unlawfully accessing of the victim’s computer which would surely be a cause of action.  If instead, the complaint is premised upon Pinkmeth being the recipient and gallerist of the nude photos submitted by some other third party (e.g. victim’s ex), it’s basically claiming that the original third party’s conduct (and liability derived therefrom) should be ascribed to the website.  But again that third party is completely absent from the facts.

B)  PUBLIC DISCLOSURE OF PRIVATE FACTS (TX)

“The public disclosure of private facts:  The purpose of the tort is to protect an individual who has a right to be free from public disclosure of embarrassing private facts about him or herself, and against unwarranted publication of those facts.  It is not concerned with the identity of the party making the disclosure, or his or her sources, but merely with whether the information disclosed is both private and intimate or embarrassing, and also not of public concern.  The information disclosed must be confidential, in the sense that it was previously secret and that disclosure would cause harm.  Thus, an action lies to recover damages for the invasion of a right of privacy by the wrongful publicizing of his or her private affairs and activities that are outside the realm of legitimate public concern.  Truth is not a defense to such an action because falsity is not an element.  A person’s right to make public the most private details of their own life is not limited when the information also reveals painful intimacies of other persons.  The right to publish a personal account of one’s family’s tragedy is protected speech under the First Amendment”  59 Tex. Jur. 3d Privacy § 17.

This claim relies upon the judge ruling that Pink Meth is not immune under the Communications Decency Act (CDA) which immunizes online service providers from liability for content that a third party uploads.  This is bold.  Some of our country’s biggest experts on the CDA and free speech admit the CDA’s immunity needs a trim in some capacity.

I’m the first to argue that dedicated Revenge Porn websites should not be immune from liability associated with the content they host since they make revenue from it via ad sales, solicit it, and serve no other purpose but to receive and post nonconsensual nude photos of persons.  If not creating the content, they are “developing” it in my opinion. Many people disagree.  The issue hasn’t gone up the courts vis-a-vis Revenge Porn.

A CDA overhaul probably needs to happen legislatively.  If by court, though, it needs to be thoughtful, in a strategic jurisdiction with a strong complaint abundant in language derived from the CDA and precedent that anticipates the immunity defense.   Here we have none of that.  [I’ll save for another post the topic of why I think case law does not foreclose a ruling that dedicated revenge porn sites are outside CDA immunity.]

One other thought – if this guy has any chance of claiming that PInk Meth created or developed the content, how about claiming that by resurging on the web after a period of absence, Pink Meth itself reintroduced the content on this 2.0 version and thereby created/developed it?

C) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

I’m getting arthritic fingers from typing.  Extremely unlikely that we’ll have intention.  Not enough facts about emotional distress, damages, etc.  Everything in the complaint is conclusory.  Mostly talks about prospective harms — diminished likelihood of obtaining a career in law enforcement

D) CIVIL CONSPIRACY

See above in the section about Tor.

E) INJUNCTIVE RELIEF

Some of it makes sense such as removal of victim’s pics from search engines.  The rest is pretty wishful.  And I can’t overemphasize the stark absence of injunctive relief for permanent removal of the pics.

In conclusion, I hope this victim’s attorney has carefully informed her of the potentially expensive decisions and risks contained in the four corners of the lawsuit she filed.  And I hope I’m totally wrong about all of this, that Pinkmeth dies, and that the death triggers a domino effect among other revenge porn sites.

[Thanks to Adam Massey and Amos Elberg, Esq. for their research.  Their very dissimilar research.] 

[And, yes, I’m aware that literally following my recommendations would prob require refiling and not just amending.  And, yeah, I didn’t touch on jurisdictional issues, international issues, default judgment probability, etc.]

UPDATE:  See the Twitter exchange between Pink Meth and Van Dyke here and Van Dyke’s response to the criticism here.