As Walled Culture the book (free digital versions) details, for decades the copyright industry has lobbied consistently (and successfully) for more and harsher laws targeting alleged infringement. Against that background, it is hardly surprising that these laws are used on a massive scale every day. But some companies take this to extremes. Here, for example, is a story on Ars Technica from earlier this year:
In an attempt to prove that RCN (now known as Astound Broadband) turned a blind eye to customers illegally downloading copyrighted movies, the [film] studios subpoenaed Reddit seeking identifying information for specific users who commented in piracy-related threads. While some of the comments were posted in 2022, other comments were made in 2009 and 2014.
The lawsuit was originally filed in 2021, which means that the studios were demanding the names of people for posting a comment anonymously more than a decade ago. Fortunately, the judge quashed the subpoena, for reasons discussed in the Ars Technica post. Despite that clear defeat, the same film studios are back demanding:
“Basic account information including IP address registration and logs from 1/1/2016 to present, name, email address and other account registration information” for six users who wrote comments on Reddit threads in 2011 and 2018.
Once again, the film studios are obsessing about something somebody wrote 12 years ago. Aside from the fact that the studios are repeating an argument they have already lost before, it is absurd for them to be wasting people’s time and money on something that was written this long ago, that may or may not have some tenuous connection to alleged copyright infringement.
This level of obsession with a tiny and most likely irrelevant post that took a few seconds to write over a decade ago, borders on the pathological. It is another demonstration of how copyright not only distorts technology, markets and the law, but has also warped the minds of some people.
People are finding cool new (probably illegal) ways to unmask people they want to sue. In this case, it’s a guy who didn’t like some things said about him. But in order to get a libel lawsuit going, the plaintiff needs to have a defendant to sue. Here’s where all the bad faith begins, as uncovered (and reported) by Paul Levy of Public Citizen.
Frederic Eshelman, a pharmaceutical magnate, resents being criticized by an anonymous gmail user who called him a “piece of shit” and urged companies to stop collaborating with Eshelman for, among other things, “abusing police resources” when he used his political influence to secure the arrest and prosecution of hunters who “corner-crossed” his hunting reserve to get from one bit of public land to another. To move forward a defamation claim, he would have to get a subpoena to Google enforced in a California court, and those courts have protected the First Amendment right to speak anonymously by requiring plaintiffs to present complaints that state valid defamation claims, and to present evidence in support of that claim. And Eshelman’s supposed defamation claim is more than a little bit fanciful.
“Fanciful” is putting it kindly. There’s no valid defamation claim here, even if Eshelman manages to convince a court he’s not a public figure. (That’s going to be tough to claim, since he’s already made headlines at the Washington Post.) But we’re not even at that point yet. Eshelman wants to unmask the Doe he wants to sue, and he appears to be twisting the truth in hopes of keeping his subpoena to Google from being blocked.
So, instead of just filing a suit for defamation in his home state of North Carolina and domesticating a subpoena to Google in California, he went straight to the federal court there, invoking 28 U.S.C. § 1782, a procedure enacted to enable litigants in proceedings outside the United States to obtain needed discovery from US courts. Eshelman doesn’t actually have any lawsuits pending abroad – his excuse for using this procedure is that, among the recipients of the critical email was a company in India (SEE UPDATE BELOW) and a company in Germany (although as far as I can tell, the company he claims is in Germany is really in California).
The update Levy has added to this post comes from Google — the recipient of the questionable subpoena. Google dug around a bit on 6 Degree PR’s website and discovered the CEO of the company actually lives in the Philadelphia area, which means every entity Eshelman wished to exploit to bypass the First Amendment is actually a US entity or resident. The First Amendment applies.
Eshelman’s use of this loophole to bypass First Amendment scrutiny would be problematic enough if it was his idea. But it wasn’t. As Levy notes, it was likely his lawyer’s idea.
Eshelman’s counsel, from the well-known libel litigation boutique Clare Locke, told me that he has used the section 1782 procedure several times before, always successfully.
Now, that doesn’t necessarily mean every Section 1782 action filed by this firm has ultimately involved US-based entities. But it does suggest the firm has played a little loose with the facts to acquire subpoenas to unmask litigation targets.
Fortunately, this bogus attempt to unmask a critic is likely to go nowhere. Both Public Citizen [PDF] and Google [PDF] have filed motions asking the judge to quash the illicitly obtained subpoena. Both make the same point: this is bad faith litigation wholly unsupported by the known facts. This is from Public Citizen’s motion:
On January 13, 2023, Eshelman filed an Ex Parte Application for an Order Pursuant to 28 U.S.C. § 1782 against Google LLC, seeking subpoenas to learn from Google the identity of an anonymous American citizen who criticized him in a single email. […] As grounds for the request, Eshelman purportedly intends to file two defamation actions against Doe in foreign courts, claiming that the email was sent to “two international business contacts.” Neither the application nor Eshelman’s supporting declaration alleges that Eshelman suffered any injury to his reputation in either of the two foreign countries, Germany and India.
Google’s take:
The Application appears to be an attempt to circumvent the policies of the United States. The U.S. has a policy of protecting speech and public debate under the First Amendment. See, e.g., Bigelow v. Virginia, 421 U.S. 809, 829 (1975) (“The policy of the First Amendment favors dissemination of information and opinion”). There is evidence demonstrating that this matter involves a U.S. citizen or resident who sent an email to U.S. recipients, implicating the First Amendment. The Anonymous Speaker’s statement is plainly an opinion based on disclosed facts. This statement would not be actionable in U.S. courts, evidencing an intent to evade the protections of the First Amendment.
[…]
Applicant does not appear to have any basis to bring claims under Indian or German law, and he has not shown that his possible claims are actionable or that foreign proceedings are even viable. Instead, this appears to be a purely domestic dispute without a clear connection to foreign countries.
There’s basically no chance this ends up going Eshelman’s way. These are shady tactics in service of a libel lawsuit Eshelman has zero chance of winning in a US court. Hopefully, the court will quash the subpoena and force Eshelman to play by the (US) rules. And, if he has to do that, hopefully he’ll realize moving forward with a lawsuit is only going to net him another loss. If Eshelman’s smart (and there’s nothing here that suggests that he is), he’ll quit while he’s only this far behind.
Back in March, we discussed a fairly silly request, made by several film producers who are suing RCN for not being their copyright police, that the court subpoena Reddit to unmask 9 users of that site. There were several aspects of the request that made it all very dumb: half the Reddit users never mentioned RCN, most referenced Comcast being their ISP, most of the remaining users never mentioned anything about piracy, and the one user who did mention RCN and piracy in context together had done so nearly a decade prior to the lawsuit. Given the First Amendment implications and hurdles involved in a request like this, the desire for the subpoena seemed doomed to fail.
Reddit doesn’t have to identify eight anonymous users who wrote comments in piracy-related threads, a judge in the US District Court for the Northern District of California ruled on Friday. US Magistrate Judge Laurel Beeler quashed a subpoena issued by film studios in an order that agrees with Reddit that the First Amendment protects the users’ right to speak anonymously online.
Reddit has no involvement in the underlying case, which is a copyright lawsuit in a different federal court against cable Internet service provider RCN. Bodyguard Productions, Millennium Media, and other film companies sued RCN in the US District Court in New Jersey over RCN customers’ alleged downloads of 34 movies such as Hellboy, Rambo: Last Blood, Tesla, and The Hitman’s Bodyguard.
It’s the right decision, to be sure. While the studios’ assertions were questionable generally, the standard the court applied in this instance was weighing essentially whether the anonymous comments, and commenters by extension, served as a primary or only source of the information they sought for the RCN trial. The court then goes through on a user by user basis to analyze whether that was the case, finding in all instances that it was not. Below is one example.
The user “compypaq” said that RCN would sometimes remotely reset his modem. The plaintiffs contend that this comment helps show that RCN can monitor and control its customers’ conduct, because the ability to reset a modem implies the ability to turn off a modem. This argument only reinforces that the plaintiffs can obtain the information they seek from RCN. It isn’t necessary to subpoena the identities of RCN customers from a third party to determine whether RCN can disable its customers’ internet access.
In other words, the request only makes sense as a fishing expedition, in which the plaintiffs aren’t actually after the information they claim to be. And because of that, the court quashed the subpoena.
If those plaintiffs want the actual information they sought to enter into evidence from these Reddit users, they will have to get it through the normal discovery process at the RCN trial.
Readers of this site will know by now that Nintendo polices its intellectual property in an extremely draconian fashion. However, there are still differences in the instances in which the company does so. In many cases, Nintendo goes after people or groups in a fashion that stretches, if not breaks, any legitimate intellectual property concerns. Other times, Nintendo’s actions are well within its rights, but those actions often times appear to do far more harm to the company than whatever IP concern is doing to it. This is probably one of those latter stories.
There’s a new Zelda game coming out in a few weeks on the Switch: The Legend of Zelda: Tears of the Kingdom. As with any rabid fanbase, fans of the series have been gobbling up literally any information they can find about the unreleased game. It was therefore unsurprising that there was a ton of interest in a leaked art book that would accompany its release. It is also not a shock that Nintendo DMCA’d the leaks and discussion of the leaks that occurred on Discord, even though that almost certainly brought even more attention to the leaks in a classic Streisand Effect.
The posts include images from the 204-page artbook that will come with the collector’s edition of the game. They quickly spread to other Discord servers, various subreddits, and beyond. While a ton of original art for the game was in the leak, it didn’t end up revealing much about the mysteries surrounding Tears of the Kingdom players have spent months speculating about. There was no real developer commentary in the leak, and barely any spoilers outside of some minor enemy reveals.
But now Nintendo is also seeking to get a subpoena to unmask the leaker, ostensibly to “protect its rights”, which will almost certainly involve going after the leaker with every legal tactic the company can muster. This despite the all of that context above about what was and was not included in the leak.
Now, I can certainly understand why Nintendo is upset about the leak. It has a book to sell and scans from that book showing up on the internet is irritating. I would argue that those scans in no way replace a 204 page physical artbook, and frankly might serve to actually generate more interest in the book and drive sales, but I can understand why the company might not see it that way.
In which case seeking to bury the links and content via the DMCA is the proper move, even if I think that only serves to generate more interest in the leaks themselves. The only real point of unmasking the leaker is to go after that individual. While Nintendo may still be within its rights to do so, that certainly feels like overkill to say the least.
Referencing the notices sent to Discord in respect of the “copyright-protected and unreleased special edition art book for The Legend of Zelda: Tears of the Kingdom” the company highlights a Discord channel and a specific user.
“[Nintendo of America] is requesting the attached proposed subpoena that would order Discord Inc. …to disclose the identity, including the name(s), address(es), telephone number(s), and e-mail addresses(es) of the user Julien#2743, who is responsible for posting infringing content that appeared at the following channel Discord channel Zelda: Tears of the Kingdom..[..].
As we’ve said in the past, unmasking anonymous speakers on the internet ought to come with a very high bar over which the requester should need to jump. Do some scans from an artbook temporarily appearing on the internet really warrant this unmasking? Is there real, demonstrable harm here? Especially when this appears to be something of a fishing expedition?
Information available on other platforms, Reddit in particular, suggests that the person Nintendo is hoping to identify is the operator of the Discord channel and, at least potentially, the person who leaked the original content.
A two-month-old comment on the origin of the leak suggests the source was “a long time friend.” A comment in response questioned why someone would get a friend “fired for internet brownie points?”
There are an awful lot of qualifiers in there. And if this is just Nintendo fishing for a leaker for which it has no other evidence, then the request for the subpoena should be declined by the court.
There’s something about some government agencies that make them revolt against the notion of checks and balances. Some federal agencies have extra privileges that make it much, much easier. A large number of agencies can issue their own subpoenas, demanding data, recordings, and other information from their targets — self-issued documents that bypass the court system entirely.
The FBI does this literally all the time. If it feels demands for info might not be completely constitutional, it will just issue its own National Security Letter (NSL). This letter is always accompanied by a gag order. And these gag orders are often indefinite, preventing recipients from discussing the existence of the letter, much less its content. The FBI writes the letter and sends it off. No court needed.
Wired obtained a copy of ICE’s subpoena database via a FOIA request. This contains data on ICE’s Section 1509 subpoenas, which are supposed to be limited to investigations relating to illegal imports or unpaid customs fees. An analysis of the database found ICE had issued 170,000 of these 1509 subpoenas from 2016 to the middle of 2022. Most of those sought the “normal” kind of data. And by “normal,” I mean “normal” as defined by the Third Party Doctrine, which says nearly anything shared with third parties can be forcibly “shared” with the government without the use of warrant.
Most of the 170,000 subpoenas do what’s expected: seek data and info from phone companies, money transfer services, and utility companies. (Even that last one is controversial. ICE recently lost warrantless access to this data.)
Then there are the exceptions to the ~170,000 rule — the sort of thing that’s seriously alarming given the targets and given the supposed investigative purpose of these 1509 subpoenas. Customs Enforcement is supposed to be the purpose. Who knows what the fuck is going on here.
The outlier cases include custom summonses that sought records from a youth soccer league in Texas; surveillance video from a major abortion provider in Illinois; student records from an elementary school in Georgia; health records from a major state university’s student health services; data from three boards of elections or election departments; and data from a Lutheran organization that provides refugees with humanitarian and housing support.
In at least two instances, agents at ICE used the custom summons to pressure news organizations to reveal information about their sources.
It’s easy to see why ICE went the 1509 subpoena route for these requests. It’s hard to believe a judge would approve a warrant seeking information about journalists’ sources or surveillance footage from an abortion clinic, especially considering the alleged crime in the case of the latter demand.
A major abortion provider in Illinois said that ICE had demanded surveillance video of a man running through their parking lot for a financial investigation.
The subpoenas handed to journalists failed to generate any results fortunately. BuzzFeed was one of the targets, but ICE also sent subpoenas to other news agencies that had covered a leaked ICE memo, apparently in hopes of identifying the source of the leak.
Former DHS deputy chief counsel Robert Dunikoski told Wired the numerous requests sent to schools were probably just ICE trying to combat CSAM. Schools are where the children are, so that might explain why ICE would seek info from schools, but not why it would use self-issued subpoenas under this particular legal authority, which doesn’t say ICE can use these subpoenas for this reason:
(a) Authority In any investigation or inquiry conducted for the purpose of ascertaining the correctness of any entry, for determining the liability of any person for duty, fees and taxes due or duties, fees and taxes which may be due the United States, for determining liability for fines and penalties, or for insuring compliance with the laws of the United States administered by the United States Customs Service…
This doesn’t say ICE can use these to investigate any crime. It limits it to a short list of customs crimes, which CSAM isn’t. Without access to the underlying subpoenas, it’s extremely difficult to find these secondhand assertions by a former DHS lawyer credible, especially when he’s attempting to defend ICE, which has engaged in plenty of surveillance abuses. I’m with the EFF on this one.
The EFF’s [Matthew] Guariglia says it seems “a little far-fetched” to suggest that all these summonses could be issued in CSAM investigations, given ICE’s record of abusing these summonses. “I’d have to see proof they were actually investigating specific harms to children,” he says. “I don’t know why anyone would take ICE at its word given their track record.”
It will probably take another kind of investigation to get to the bottom of this. Hopefully, someone’s already in the process of referring this to the DHS Inspector General. At some point, we may have something that approaches the truth. And by that point, ICE will already be another couple of scandals down the road.
Ever since Elon Musk made his initial bid to buy Twitter, he’s talked about “open sourcing” the algorithm. He mentioned it last April in the first interview he gave, on the TED stage, to talk about his plans with Twitter. And since taking over the company at the end of October, he’s mentioned it over and over again.
Indeed, on February 21st, he promised that Twitter would release its “algorithm” as open source code “next week.”
And then, two weeks ago, he announced that “all code used to recommend tweets” will be released as open source on March 31st (i.e., this Friday).
Who knows if he’ll meet his deadline this time (he has a habit of missing deadlines pretty regularly).
However, over the weekend something vaguely interesting happened, in that it was revealed that someone had already, um, “open sourced” Twitter’s source code for it, by posting a repository of at least some of the code to Github. This was revealed in a DMCA notice that Twitter sent to Github, followed by a DMCA subpoena demanding the identity of the person who posted it along with any one who downloaded it.
Now, I initially wasn’t going to write about this. Leaks happen, and I think it’s perfectly fine for Twitter to issue the DMCA takedown for such a leak. But what caught my attention was the username of the leaker. According to the DMCA notice, the leaker went by “FreeSpeechEnthusiast,” and their account is (at the moment) still up on GitHub showing a single contribution on January 3rd (which makes me wonder if the code was sitting there for anyone to find for a whole month and a half):
That name choice takes this from a garden variety leak operation to an ultimate troll attempt against admitted troll Elon Musk. After all, Musk himself continually (if ridiculously) refers to himself as a “free speech absolutist.”
So, given both Elon’s repeated promises to reveal the source code and his publicly stated (if often violated) commitment to “free speech,” the leak of the source code by someone using the name FreeSpeechEnthusiast seems like it was designed directly as a troll move to Musk, goading him into exposing his own hypocrisy (which is way easier than many people may have thought).
Well played, FreeSpeechEnthusiast, well played.
As for the actual leak, again, it’s not clear how much source code was actually leaked or how problematic it is. As I understand it (and would expect) the full source code for Twitter is cumbersome and complex. Releasing a full dump of it would be difficult even if authorized, so I’m guessing it’s not everything.
And while you can find lots of quotes from “cybersecurity experts” about how this may expose vulnerabilities, my guess is that the risk of that is actually fairly low at first? Given enough time, yes, someone can probably find some messy code and some vulnerabilities, but Twitter had (at one time) lots of engineers who were focused on finding and patching those vulnerabilities themselves, and so whatever remains is likely nothing obvious, and anyone going through the code now would first have to figure out how it all worked, which may be no easy task in the first place.
Indeed, this is why, from the beginning, I’ve said that Elon’s promises to open source the code was mostly meaningless, because there are almost no examples of companies taking large, complex systems in proprietary code, and open sourcing them and finding anything valuable come out of it, because there’s so much baggage and complexity for people to even figuring out what the hell anything really does.
This is also why Musk’s announced plans to fix things that people find in the code he still promises to release this week also seems a bit silly, as there’s a reasonable interpretation of this as: “we fired everyone who understands our code, so we’re going to open it up to get engineers to clean up our code for free for the world’s richest man.”
It’s also why the better approach would have just been to improve the API and to allow more developers to build more tools, services, and features on top of Twitter code, but Elon’s already killed off that whole idea.
In the end, this particular story isn’t likely to be that big a deal, but it seemed worth commenting on solely for the lulz of the epic trolling job whoever leaked the code did in highlighting Musk’s hypocrisy. Again.
Back in the fall we were among the first to highlight that Elon Musk might face a pretty big FTC problem. Twitter, of course, is under a 20 year FTC consent decree over some of its privacy failings. And, less than a year ago (while still under old management), Twitter was hit with a $150 million fine and a revised consent decree. Both of them are specifically regarding how it handles users private data. Musk has made it abundantly clear that he doesn’t care about the FTC, but that seems like a risky move. While I think this FTC has made some serious strategic mistakes in the antitrust world, the FTC tends not to fuck around with privacy consent decrees.
However, now the Wall Street Journal has a big article with some details about the FTC’s ongoing investigation into Elon’s Twitter (based on a now released report from the Republican-led House Judiciary who frames the whole thing as a political battle by the FTC to attack a company Democrats don’t like — despite the evidence included not really showing anything to support that narrative).
The Federal Trade Commission has demanded Twitter Inc. turn over internal communications related to owner Elon Musk, as well as detailed information about layoffs—citing concerns that staff reductions could compromise the company’s ability to protect users, documents viewed by the Wall Street Journal show.
In 12 letters sent to Twitter and its lawyers since Mr. Musk’s Oct. 27 takeover, the FTC also asked the company to “identify all journalists” granted access to company records and to provide information about the launch of the revamped Twitter Blue subscription service, the documents show.
The FTC is also seeking to depose Mr. Musk in connection with the probe.
I will say that some of the demands from the FTC appear to potentially be overbroad, which should be a concern:
The FTC also asked for all internal Twitter communications “related to Elon Musk,” or sent “at the direction of, or received by” Mr. Musk.
I mean… that seems to be asking for way more than is reasonable. I’ve heard some discussion that these requests are an attempt to figure out who Musk is delegating to handle privacy issues at the company (as required in the consent decree), but it seems that such a request can (and should) be more tailored to that point. Otherwise, it appears (and will be spun, as the House Judiciary Committee is doing…) as an overly broad fishing expedition.
Either way, as we predicted in our earlier posts, the FTC seems quite concerned about whether or not Twitter is conducting required privacy reviews before releasing new features.
The FTC also pressed Twitter on whether it was conducting in-depth privacy reviews before implementing product changes such as the new version of Twitter Blue, as required under the 2022 order. The agency sought detailed records on how product changes were communicated to Twitter users.
It asked Twitter to explain how it handled a recently reported leak of Twitter user-profile data, to account for changes made to the way users authenticate their accounts, and to describe how it scrubbed sensitive data from sold office equipment.
Another area that is bound to be controversial (and Matt Taibbi is, in his usual fashion, misleadingly misrepresenting things and whining about it) is that the FTC asked to find out which outside “journalists” had been granted access to Twitter systems:
On Dec. 13, the FTC asked about Twitter’s decision to give journalists access to internal company communications, a project Mr. Musk has dubbed the “Twitter Files” and that he says sheds light on controversial decisions by previous management.
The agency asked Twitter to describe the “nature of access granted each person” and how allowing that access “is consistent with your privacy and information security obligations under the Order.” It asked if Twitter conducted background checks on the journalists, and whether the journalists could access Twitter users’ personal messages.
Given the context, this request actually seems reasonable. The consent decree is pretty explicit about how Twitter needs to place controls on access to private information, and the possibility that Musk gave outside journalists access to private info was a concern that many people raised. Since then, Twitter folks have claimed that it never gave outside journalists full access to internal private information, but rather tasked employees with sharing requested files (this might still raise some questions about private data, but it’s not as free wheeling as some worried initially). If Twitter really did not provide access to internal private data to journalists, then it can respond to that request by showing what kind of access it did provide.
But, Taibbi is living down to his reputation and pretending it’s something different:
At best, Taibbi seems to be conflating two separate requests here. The request for all of Musk’s communications definitely does seem too broad, and it seems like Twitter’s lawyers (assuming any remain, or outside counsel that is still having its bills paid) could easily respond and push back on the extensiveness of the request to narrow it down to communications relevant to the consent decree. That’s… how this process normally works.
As for the claim that which journalists an executive talks to is not the government’s business, that is correct, but lacking context. It becomes the government’s business if part of the conversation with the journalist is to violate the law. And… it’s that point that the FTC is trying to determine. If they didn’t violate the consent decree, then, problem solved.
Thus, the request regarding how much access Musk gave to journalists seems like a legitimate question to determine if the access violated the consent decree. One hopes that Twitter was careful enough in how this was set up that the answer is “no, it did not violate the consent decree, and all access was limited and carefully monitored to protect user data,” but that’s kinda the reason that the investigation is happening in the first place.
Indeed, in the House Judiciary Committee report, in which they try to turn this into a much bigger deal, they do reveal a small snippet of the FTC’s requests to Twitter on this topic that suggest that Taibbi is (yet again) totally misrepresenting things (it’s crazy how often that’s the case with that guy), and their concern is literally to the single point implicated by the consent decree: did Twitter give outside journalists access to internal Twitter systems that might have revealed private data:
I would be concerned if the request actually were (as Taibbi falsely implies) for Musk to reveal every journalist he’s talking to. But the request (as revealed by the Committee) appears to only be about “journalists and other members of the media to whom” Elon has “granted any type of access to the Companies internal communications.” And, given that the entire consent decree is about restricting access to internal systems and others’ communications, that seems directly on point and not, as the Judiciary Committee and Taibbi complain, about an attack on the 1st Amendment.
It remains entirely possible that the FTC finds nothing at all here. Or that if it tries to file claims against Twitter that Twitter wins. Unlike some people, I am not rushing to assume that the FTC is going to bring Twitter to account. But there are some pretty serious questions about whether or not Musk is abiding by the consent decree, and violating a consent decree is just pleading for the FTC to make an expensive example of you.
Bear with me here, because this is going to take some explaining as a matter of throat-clearing for this post, which is actually the entire problem.
Back in 2021, several film studios filed a lawsuit against ISP RCN, accusing it of ignoring piracy conducted by its customers. That suit mostly followed the same bullshit playbook used by studios in the past: copyright infringement was occurring by RCN customers, RCN didn’t do enough to play copyright police, therefore give us a whole bunch of money. But where this gets weird is that the studios wanted to present evidence of RCN’s blind eye towards piracy and, for some reason, decided that comments on Reddit forums going back over a decade ago were just the evidence they needed. As part of that, the studios demanded that Reddit unmask 9 of those users it claimed were involved in the piracy, according to them. Reddit only complied with 1 individual and pushed back on the other 8.
As a result of that, those studios filed a motion in court to try and force Reddit to comply.
The film companies last week filed a motion to compel Reddit to respond to the subpoena in US District Court for the Northern District of California. The latest filing and the ongoing dispute over the subpoena were detailed in a TorrentFreak article published Saturday.
“The evidence Plaintiff requests from Reddit in the Rule 45 subpoena is clearly relevant and proportional to the needs of the case,” the film studios’ motion said. The Reddit users’ comments allegedly “establish that RCN has not reasonably implemented a policy for terminating repeat infringers,” that “RCN controls the conduct of its subscribers and monitors its subscribers’ access,” and “establish that the ability to freely pirate without consequence was a draw to becoming a subscriber of RCN.”
The reason for some of the specific language the studios used is that requests like this come with a very high bar over which they must hurtle. That is because there are rather severe First Amendment implications involved in unmasking an anonymous internet user as a result of their speech.
Reddit’s new motion said the film studios “cannot overcome the Reddit users’ First Amendment rights because the users’ posts Plaintiffs have identified as the basis for this subpoena are completely irrelevant to Plaintiffs’ lawsuit.” Reddit continued:
Four of the seven users at issue do not appear to have ever even mentioned RCN, based on the evidence offered by Plaintiffs. They merely refer to “my provider” or “our ISP.” And those references are all made in a discussion about Comcast, not RCN. Plaintiffs’ argument that the users are “very likely” referring to RCN should be rejected as speculative. Two of the three remaining users did mention RCN, but were discussing issues (such as their customer service experience) unrelated to copyright infringement or Plaintiffs’ allegations. And the final user vaguely mentioned RCN arguably in the context of copyright infringement once nine years ago, well beyond any arguably relevant timeframe for Plaintiffs’ allegations.
Which is precisely what Reddit has been talking about this entire time as it has continuously described this entire thing as a fishing expedition by the studios. They want to find evidence that somehow ties RCN users specifically to discussions about how they can get away with piracy using RCN as an ISP. But if this is the best they can do, then perhaps it would be better to simply drop this entire original lawsuit, because as far as good evidence goes, this ain’t it. In most cases, RCN isn’t even the ISP in question, and it also wasn’t the subject of the Reddit thread for several of the users the studios are seeking to unmask.
The February 2022 thread was started by a user “explaining that they had received a copyright infringement email from Comcast and expressing that they were ‘kinda worried,'” Reddit wrote. “In the year since, there have been over 240 replies in that discussion. Among those hundreds of comments about Comcast’s copyright practices, one mentions RCN.”
Reddit said it provided identifying information for that one user to the plaintiffs. “But the remaining four Comcast Users are now being targeted merely because they happened to post in the Comcast Thread, despite the fact that none of the users were responding or referring to any discussion of RCN, and none mention RCN themselves,” Reddit wrote.
Reddit’s filing goes on with more details. For starters, several of the targets for unmasking that actually were RCN customers… never discussed piracy. Like, at all. The studios also claimed that because one user talked about how RCN had reset their home router, this somehow means that Reddit “monitors and controls” the actual behavior of the customer while on the internet. Which is pretty fucking stupid, because maintaining infrastructure and monitoring web activity are two completely separate things. And then there’s this…
The studios argued that the 2009 post “establishes that RCN has the technical ability [to monitor users]. If RCN had the ability 13 years ago, it certainly still has the ability now.” The post in question said RCN replaced an error page with branded search results. Reddit told the court that the post doesn’t prove what the film studios claim:
This practice is known as NXDOMAIN DNS hijacking, and many ISPs have engaged in it to display advertisements to their customers. It has absolutely nothing to do with copyright infringement or piracy… DNS hijacking does not demonstrate ever-present surveillance or control by an ISP over its users. It instead reflects an ISP’s global policy of routing certain DNS calls to an IP address of their choosing.
You know, it sure would be nice if these film studios, prior to pumping out this motion before the court, could be bothered to actually understand what the hell they were talking about. Almost none of this makes any sense as part of its lawsuit against RCN, it would absolutely violate core First Amendment principles, and is obviously the fishing expedition that Reddit has been claiming it is.
You can read the entire filing embedded below, but hopefully these studios get laughed out of this particular court with speed.
Donald Trump promised to take the social media world by storm with his Truth Social Twitter-clone for the MAGA world. “Free speech!” he claimed as he banned anyone who criticized him. Of course, from the beginning, many suspected that this was all a very sketchy grift, using a SPAC to try to cash in on gullible MAGA folks willing to pump up a shell company stock well beyond what it could possibly be worth.
Except, everything continues to fall apart. Even with Trump himself finally starting to “Truth” it up during the January 6th hearings (which have been quite damning), the site is struggling to remain relevant. It’s even gotten to the point that the ban and block finger is so heavy that he’s blocking some of his biggest fans, and they’re not happy about it.
It’s almost as if it was never about “free speech” after all.
Oh, and also, Reuters has a giant report on how the company is having trouble attracting tech talent, and that other tech companies are steering way clear of partnering with the company as well, because it’s seen as such a toxic asset all around.
Truth Social last summer started recruiting tech talent. Executives sought to find ideologically aligned staffers, in at least one case scanning candidates’ social media and listening to their appearances on podcasts, according to a person familiar with company operations. But the company struggled to woo skilled tech workers, regardless of their politics, according to three people with knowledge of the recruiting efforts.
Those with the company’s preferred conservative politics, or at least a commitment to its stated free-speech mission, were in short supply, they said. And tech workers with liberal or moderate politics usually wanted nothing to do with the Trump company. One person approached by TMTG told Reuters it was an easy offer to refuse. Beyond a distaste for Trump’s politics, this person cited concerns about the former president’s history of business failures – the DWAC filing lists six Trump entities that have filed for bankruptcy – and about TMTG’s financing arrangements.
But, perhaps the bigger threat on the horizon is that the SPAC shell game with Digital World Acquisition Corp. may be in serious doubt. The SEC has ramped up its investigation into what’s going on here.
The SEC investigation continues apace. But in the meantime, DWAC disclosed this morning that the company and its board members had all gotten subpoenas from a federal grand jury in the Justice Department’s office in the Southern District of New York. And that shark tank does not hand out investment capital.
The grand jury is seeking substantially the same information as the SEC, and it has specific questions about Miami investment firm Rocket One Capital. CNBC reports that DWAC board member Bruce Garelick resigned last Wednesday. Garelick is — or perhaps was — the chief strategy officer for Rocket One. We’d check his status, but as of this morning, the company’s website looks like this:
Probably just a coincidence, right?
Oof. Anyway, at the very least, all of this is going to delay the SPAC deal, and it may delay it permanently. The gang that couldn’t shoot straight can’t even pull off the whole cashing out part of the grift for its social media site that barely works, is having trouble attracting a meaningful userbase, and is kicking people off for any kind of wrongspeak.
Remote test-taking spyware company Proctorio has spent months turning itself into an internet villain. It all started when student and security researcher Erik Johnson decided to take a look at the inner workings of Proctorio’s spyware, noting that it tracked everything from eye movement to mouse movement (with plenty in between) in apparent hopes of keeping students from cheating.
For providing this public service, Johnson’s Twitter account was hit with bullshit DMCA takedown requests from Proctorio, which objected to his fair use posting of the extension’s code — code that could easily be examined by anyone who installed the company’s spyware.
Proctorio probably thought it could intimidate Johnson into silence with its bogus DMCA demands. Instead, it poked a bear, leading to it being sued over its DMCA abuse by Johnson, now represented by the EFF. This was a new experience for Proctorio, which was used to being the plaintiff in lawsuits filed to silence critics of its software.
Now that it’s being sued, Proctorio is attempting to inflict misery on other critics of its spyware — even entities that are not a party to the lawsuit filed by Erik Johnson against the company. As Monica Chin reports for The Verge, Proctorio is attempting to drag internal documents and communications belonging to a critical nonprofit into court, seemingly solely for the purpose of discouraging EFF-alikes from continuing to expose the more concerning aspects of its remote education software.
The controversial proctoring platform Proctorio has filed a broad subpoena against the prominent digital rights nonprofit Fight for the Future as part of its legal battle with Miami University student Erik Johnson, in what the group describes as an effort to silence critics through legal maneuvering.
Certainly Proctorio would prefer FFTF to STFU. The nonprofit has been openly critical of Proctorio and other companies selling schools spyware to keep an eye on distance learners. It has also created a website that encourages students to pressure schools into dropping contracts with companies like Proctorio, citing all sorts of privacy issues this kind of intrusive software creates.
Fight for the Future is not a party to this lawsuit. Nonetheless, Proctorio is hoping a subpoena will give it access to a whole bunch of communications it has no right to obtain.
The subpoena requests that FFTF produce “all documents and communications” between itself and EFF, Erik Johnson, and Ian Linkletter, as well as any related to the proctoring software industry.
FFTF is fighting back. It has asked the court to quash the subpoena [PDF], pointing out Proctorio is engaging in a proxy war against its many critics with the obvious intent of silencing them.
Proctorio’s requests are a thinly veiled attempt to appropriate this court’s resources to extract information regarding the internal workings of a non-party advocacy organization with, at best, a tangential connection to the underlying litigation. Moreover, the Subpoena appears to be specifically calculated to chill FTTF’s future advocacy by blunting its speech and deterring association. These factors weigh heavily in favor of quashing the Subpoena.
Proctorio cannot satisfy even the general standard articulated in Rule 45, let alone the heightened standard to which the Subpoena is subject. The portion of the Subpoena in dispute — the request for “all documents and communications related to [Proctorio]” — would produce documents irrelevant to the litigation at hand, imposes an undue burden on FFTF, and is improperly motivated by a desire to access FTTF’s internal strategy. For these reasons, the Subpoena should be quashed or modified.
Proctorio — which cannot ever let anything go — claims this is a fully-justified wielding of proxy government power. It said (in its statement to The Verge) that this is just normal litigation stuff wherein parties being sued toss subpoenas in the general direction of non-parties that may or may not have anything of interest to the defendant. And while that may be true in some cases, Proctorio has made enough enemies it can likely claim every critic possesses some form of information “relevant” to its defense.
But that doesn’t make Proctorio right. And it doesn’t do anything to undermine the common perception that Proctorio is limiting its subpoenas to vocal critics or the objective truth that dragging critical non-parties into litigation has an undeniable chilling effect. Hopefully, the court will reject Proctorio’s critic-centric dragnet and force it to focus on the parties directly involved in the lawsuit.