Free Speech

by Mike Masnick


Filed Under:
cyberstalking, parody, police, renton



Police, City Use Ridiculous 'Cyberstalking' Claim To Try To Identify & Jail Creator Of Mocking Videos

from the police-state? dept

An anonymous reader points us to the absolutely crazy goings on in Renton, Washington, where the police and city prosecutor are seeking jailtime for an anonymous person (or people) who created some Xtranormal videos mocking the Renton police force. Most of the news reports on this story keep calling whoever did this a "cartoonist," but all they really did was use Xtranormal -- a popular tool that wev'e used ourselves -- to create simple animated videos by typing in a script. You can see one of the videos embedded below (assuming it stays up):
Given standard Xtranormal fare, this may be the most boring such video I've seen. But, clearly, it's been created by someone who is an insider, probably on the police force, who is venting about certain administrative decisions and administrators. The police and the city prosecutor then cooked up a search warrant (embedded below) to try to identify the person behind the videos, who variously goes by the name MrFuddlesticks, whothehellispenny or tellinthetruth. That search warrant was obtained by a local news channel, KIROTV, who originally broke this story. It spells out various evidence as to why the videos are clearly about people and incidents involving the Renton police force.

And then, it tries to claim that the whole thing is "cyberstalking." Why? Because apparently some of the people the video is mocking say they're embarrassed about the videos. That seems to be the extent of the cyberstalking. As you read the filing, though, the details of the warrant appear to suggest that many of the references in the videos refer to actual events.

It's extremely difficult to see how anything here raises to the level of cyberstalking. KIROTV asked lawyer Venkat Balasubramani (whose blog posts we regularly link to here) his opinion on the search warrrant, and he noted that:
“The cyberstalking angle doesn't pass the laugh test," Balasubramani told KIRO-TV. "It's a serious stretch and I'd be surprised if somebody looked at it and realistically thought these acts actually fit the statute and we could make somebody criminally liable."

When we asked about the more likely scenario, Balasubramani said, "I think they were trying to get at the speaker and they looked around for a statute that shoehorned their conduct into and sent that to Google and said ‘turn over the information.”

Historically, Google and You-Tube are far more likely to cough up an anonymous animator's real name when there's a criminal case, as opposed to just an internal affairs investigation into some personnel issues.
In fact, from the warrant, it looks like Google just handed over the info upon receipt of the subpoena, without questioning it at all. The city was then trying to get more info from Google about the gmail address that "mrfuddlesticks" was using, in an effort to identify the person.

This seems like a pretty broad overreach. The prosecutor appears to be taking a exceptionally broad interpretation of the cyberstalking law, saying that anything done "with intent to harass... torment, or embarass" is criminal. As Eugene Volokh has pointed out, if the law really allows for such an interpretation, then the law is "clearly unconstitutionally overbroad." Furthermore he notes:
Moreover, the statute would be clearly unconstitutional as applied to this video, and the prosecutor and the judge ought to know this. (The prosecutor is Renton Chief Prosecutor Shawn Arthur; the judge on an earlier warrant was James Cayce, but I don’t know what the affidavit said there, and I don’t know the name of the judge who apparently issued the warrant based on the affidavit included with the KIRO story.) A search warrant can only be issued if there is probable cause to believe that it will uncover evidence of a crime; since the material described in the affidavit can’t be made criminal under the cited statute, given the First Amendment, the warrant ought not have been issued. The government is not permitted to use its coercive power to identify the author of this constitutionally protected video.
This whole thing raises tremendous abuse of power and First Amendment questions. It seems that their entire intent is to try to identify someone who is mocking them publicly by abusing certain laws and procedures to reveal that anonymous parodist.

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  1. identicon
    Anonymous Coward, 5 Aug 2011 @ 4:19pm

    Re:

    So your name is Anonymous Coward?

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