Court Says Twitter Must Unmask User Whose Bogus Document Jumpstarted Seth Rich Conspiracy Theory

from the anonymous-speech-is-still-worth-protecting,-judge dept

Lawsuits related to false reports about the murder of Seth Rich — a DNC staffer conspiracy theorists have continually tried to link to the leak of DNC emails to DCLeaks and WikiLeaks back in 2016 — continue to make their way through the court system. Seth Rich’s brother, Aaron, has been pursuing a defamation suit against several parties (including conspiracy theorist/Fox New commentator [but I repeat myself…] Ed Butowsky, who has engaged in some litigation of his own).

Currently, the lawsuit is at somewhat of a standstill. Aaron Rich has been seeking information about a Twitter account that allegedly “leaked” a forged FBI document to the sued parties, resulting in some actual fake news that “linked” Seth Rich to the DNC hack.

After several subpoenas and rounds of discovery, Aaron Rich has gotten no closer to unmasking the person behind the @whyspertech account that supplied the document that appeared to give credence to the fevered rantings of conspiracy theorists around the nation.

As NPR reports (cautiously, I assume, since it’s being sued for defamation itself by Butowsky), a federal judge has decided there’s enough in Rich’s lawsuit to justify the unmasking of the user behind @whyspertech.

A federal judge in California has ordered that Twitter reveal the identity of an anonymous user who allegedly fabricated an FBI document to spread a conspiracy theory about the killing of Seth Rich, the Democratic National Committee staffer who died in 2016.

[…]

While Twitter fought to keep the user’s identity secret, U.S. Magistrate Judge Donna Ryu in Oakland, Calif., ordered on Tuesday that the tech company must turn over the information to attorneys representing Rich’s family in a defamation suit by Oct. 20.

The ruling [PDF] cautiously sides with Rich, rejecting Twitter’s challenge of the subpoena demanding identifying info. The court says this subpoena is narrowly-crafted, seeking only what’s needed to determine whether the person behind the account could have credibly had access to actual FBI documents.

Here, unlike in 2TheMart.com where the subpoena was “extremely broad,” the Subpoena is narrowly tailored to exclude any personal communications made by the Account user. Additionally, Rich has shown that Defendants will likely rely on the affirmative defense of truth with regard to the FBI Report, which weighs in favor of a finding of good faith.

That’s the defense the alleged defamers will use: that they had no reason to believe the document handed to them by this account was bogus. Unfortunately for the defendants, that’s not going to be an easy sale. Previous discovery uncovered messages between a Butowsky associate and a [cough] “reporter” for InfoWars indicating they felt the document was highly questionable, as was its source.

The court moves past Twitter’s assertions that releasing this information about an anonymous user (and their anonymous speech) will result in damage to the First Amendment by stating that a protective order forbidding the public release of the account user’s info will mitigate potential Constitutional injuries.

[T]he Protective Order is sufficient to prevent the harm contemplated by Twitter. The Protective Order allows any producing party to designate discovery materials as “Highly Confidential.” Under this designation, disclosure is limited to individuals involved in the case and the information cannot be used for any other purpose other than the action. Thus, the Protective Order provides adequate safeguards against Rich’s ability to publicize the user information for inappropriate reasons.

The court follows a four-point checklist erected by the Ninth Circuit ruling cited by Twitter to come to this conclusion: because the core claim of Rich’s lawsuit is defamation and Rich expects the defendants to claim they acted in good faith by relying on an FBI document handed to them by a Twitter account they honestly believed was a credible source, Twitter should be forced to turn over information on this anonymous account.

There’s some chill to be felt here. The Twitter account is not a party to this lawsuit. While its input may prove to be of value to the plaintiff (or the defendants), at this point it’s only the origin point of a questionable document others referenced while publicly entertaining their conspiracy theories. Forcing Twitter to unmask a non-party to allow a lawsuit to proceed against other defendants doesn’t do much for the First Amendment as Twitter pointed out in its objection. The damage here may end up being minimal but a ruling like this will encourage litigants operating in far worse faith to pursue the unmasking of anonymous internet users only tangentially related to the case at hand.

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Comments on “Court Says Twitter Must Unmask User Whose Bogus Document Jumpstarted Seth Rich Conspiracy Theory”

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25 Comments
Anonymous Coward says:

and Rich expects the defendants to claim they acted in good faith by relying on an FBI document handed to them by a Twitter account they honestly believed was a credible source, Twitter should be forced to turn over information on this anonymous account.

If they believed an anonymous source was creditable, they can explain why without unmasking the source, otherwise they hoping that hindsight will make the source creditable.

James Burkhardt (profile) says:

Re: Re:

The journalists, the defendents, are not trying to unmask the source. Aaron rich, the plaintiff, is attempting to unmask the twitter user. He is hoping that identity will support a claim that the journalists did not vet the information before publication and/or would force them to make a more through accounting of the vetting process given the identity of the ‘leaker’.

PaulT (profile) says:

Re: Re: Re:

Well, there’s a couple of sides here. First, anonymity should not mean that you can just spread dangerous misinformation without fear of reprisal. The point of section 230 protection is that Twitter can’t be held liable for things they didn’t do, and if supposedly anonymous users can do whatever they want in defiance of the law and society, then we face the danger that the law will be changed to hold innocent 3rd parties accountable as the actual perpetrators cannot be caught.

On the other hand, setting up a Twitter account requires zero personal information. If the account holder used a VPN and a disposable email account, there’s no way of Twitter providing the actual identity of the poster. If the choice is then between identifying a sloppy conspiracy theorist who has caused actual damage to a murder victim’s family and letting someone get away with said damage, I’m not sure I have a problem with Twitter saying who the perpetrator was according to their records.

PaulT (profile) says:

Re: Re: Re:2 Re:

"rather those involved in the case want to unmask them for their own reasons"

The reason seems to be quite clear, although I understand the desire to have the procedure in unmasking them to be done via a direct lawsuit. Although, the complaint I was responding to was about anonymity itself, not the legal channels being followed.

The point is, presumed anonymity online is not carte blanche to do whatever harmful activity you want online, and identifying a person who has done harm is far more preferable than simply making the platform liable for anything an unrelated 3rd party does.

Anonymous Coward says:

Re: Re: Re: Re:

First, anonymity should not mean that you can just spread dangerous misinformation without fear of reprisal.

It absolutely, one hundred percent should mean that – and the reason why is that "dangerous misinformation" is not something that any government body should have the ability to define. There are several nations in the world where "dangerous misinformation" includes all manner of feminist philosophy (I’m sure Dubai or Saudi Arabia would be very eager to tell you about how dangerous it is to the social fabric).

And even outside those extreme cases, who do you think would have this power in the modern US? I’m sure Donald J. Trump would absolutely LOVE the idea that he can classify something as misinformation (like anything he’s referred to as ‘fake news’) and have the government prevent people from spreading it. Even before Trump, the government would have doubtless loved the idea that they could call any documents proving that Iraq didn’t have any WMDs "dangerous misinformation" and prevent people from saying it.

Khym Chanur (profile) says:

Additionally, Rich has shown that Defendants will likely rely on the affirmative defense of truth with regard to the FBI Report, which weighs in favor of a finding of good faith.

So the defendants are going to claim not just that they thought the report was true, but that the report is true, so the plaintiff is trying to prove that the report can’t be true because the owner of the anonymous Twitter account isn’t with the FBI and thus had no means of acquiring genuine FBI reports?

James Burkhardt (profile) says:

Re: Re:

SO there is an actual question of liability here. The key is the proximate cause or the ‘but for’ test.

It could be argued that the reputational damage (the harm the suit seeks to cure) actually came from the random twitter post. The damage arguably came from the national publication of claims in the report as published by the Journalists in question, which fueled conspiracy theories around Seth Rich’s death.

If the journalists took an unverified report from an anonymous twitter source and published it without verification that could reach the bar of reckless disregard for the truth of their claims. And one step in proving that the report was unverified and really should have been vetted would be to show that the source was unlikely to have access to internal FBI reports. Since a journalist is unlikely to give up that identity given the principle pf source confidentiality and since the twitter handle of that source is known, you seek to reveal that identity in a limited fashion.

James Burkhardt (profile) says:

Re: Re:

As it stands right now, the defendants, who are journalists, could in theory claim confidentiality of sources to withhold the identity of the supposed leaker while claiming they vetted the source and the material was likely genuine, establishing an affirmative defense of truth without actually having to show their work.

This subpoena bypasses that attempt by identifying the source without compelling the journalists to give up their sources. This would force the defendants to establish how they might have confirmed the veracity of the document without impuning the very important jurisprudence that we not expose confidential sources which are important to the role of journalism to speak truth to power.

Pixelation says:

From the order...

"The information sought is also materially relevant to the defense of truth because the original source maybe able to provide what facts, if any, formed the basis for the various assertions about Rich.3 Additionally, the user information for the Account could lead to an essential witness for Rich and/or Defendants."

Seems like this logic could be used to unmask any anonymous source. A slippery slope.

James Burkhardt (profile) says:

Re: Re: Re: From the order...

Anytime a 1st amendment lawsuit results in a ruling on first amendment jurisprudence there are lots of cases filed that will read the case as saying whatever they want it to say. There are still cases being filed that cite the POTUS twitter blacking case as justification for barring moderation by twitter. Fear of bad faith litigants when making a good but nuanced ruling is nothing more than the [slippery slope fallacy] at work.

If the goal is for no new lawsuits that misinterpret case law for financial gain, the only way to play is not to win. Thats not to say that there isn’t any concern, but pinning it down to that one quote from a case where all the other factors are also met is not a solid argument

Get off my cyber-lawn! (profile) says:

Not suing all the responsible parties

  1. Should be suing the twitter user for Forging & Distributing fake document – there is no valid 1st Amendment argument supporting a criminal act like that

  2. Should sue the other parties – dependent upon ability to prove they either knew or should have reasonably known material was fake AND that they intended harm

Not saying the court would agree with both arguments but at least that would be the correct way to approach the suit – IMO

James Burkhardt (profile) says:

Re: Not suing all the responsible parties

There is no Tort for ‘Forging & Distributing fake document’. In fact, many lies are protected rhetoric or parody. The tort in question is Libel. Liability for a tort follows the "But for" standard. The twitter account in question wasn’t considered big or reputable when they release this information. If it didn’t get much play, the harm caused by the libel would be minimal, if any.

It was the seperate publication in a big paper, the Washington times, that catapulted the claims into the public eye. Under this theory, the But for standard is fulfilled by the journalists, not the tweet. If the new york times publishes a story, the reputational damage by any libelous claims are much higher than the same claims made by the Weekly world news.

Not sure what the second line is about. It looks like the actual malice standard, but of course that is what the subpeona is about – proving that the Washington Times and its reporter should have known the information was suspect and place the burden on the Times to reveal what vetting they did do.

This comment has been flagged by the community. Click here to show it.

restless94110 (profile) says:

Conspiracy

Those who fling around the word conspiracy are discredited. The term conspiracy theory was promulgated by the CIA in 1967 to tamp down on JFK questions (later proved true by the Church Commission 10 years later). Anyone who uses that phrase is a tool.

Ask yourself, what’s the problem with questioning an unmotivated murder? A victim that Julian Assange put out a reward for solving it?
Questioning strange things that make no sense is now not OK in your version of America?

It is pieces like this that you write that cause me to question what has happened to you. Question Seth’s murder. It’s what Americans do.

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