Secret Sorority Handshakes, Questionable Lawsuits, Free Speech, The Right To Be Forgotten And Section 230

from the a-little-bit-of-everything dept

Late last week (beyond filing a new document in the lawsuit against us), we also filed an amicus brief, put together by Stanford's IP law clinic and Paul Levy at Public Citizen regarding a terrible and dangerous ruling for free speech in California. We wrote about it last summer and how dangerous it is -- but let's hold off on the details of the case right now.

Instead, I'd like to go back one more year to May of 2015, when we wrote about a bizarre case in which the Phi Sigma Sigma sorority was officially suing a "Jane Doe" former member, who had apparently posted the sorority's super secret handshake to the Penny Arcade forums.

Phi Sigma Sigma (PSS) secretly stands for Philanthropic Social Society. However, this is never written down or recorded (until now) because it is so "sacred". The Handshake consists of a series of motions. Member A first begins with the pointer finger and the thumb surrounding Member B's pointer finger and thumb. This is the "Phi". Then Member A wraps the remaining fingers, middle, ring and pinky around the hand as a symbol of the "Sigma". Depending on who is the senior member, the pinky finger is wrapped around the older member's hand. Next is the hand knock. It goes Knock. Pause. Knock. Pause. Knock, knock, knock. The meetings are set up usually with the President, VP and other officers sitting at the front. The President wears a yellow or gold robe and the officers wear royal blue robes. The remaining members sit across from the officers in a pyramid formation with the base closest to the officers and the apex farthest from the officers. Members are seated by class order, then by alphabetical order. The table at which the President and Vice President are seated consists of candles on each side. Two gold candles and one blue at each corner of the table. Members usually recite an oath, "We, the members of Phi Sigma Sigma, promise to keep secret and sacred all of our proceedings." The way to enter the pyramid is by using the hand knock to notify the members you are wanting to enter the room. The President will respond back with her gavel by repeating the knock. The person will enter then travel to the apex of the pyramid formation. The President will say the secret and sacred words "Remove the Veil" and then the member will respond back with the Chapter's name, example, "Zeta Eta." The Gold and King Blue symbolize "Perpetuity" and "Sincerity". At initiation, blue "veils" (tulle from the local fabric store) are placed on the heads of the potential new members and are later removed to symbolize some sort of occult transformation and that they are full-fledged members.

Bizarrely, the post with the secret handshake was posted years after the thread had started, and it was unlikely that many people were looking at it. Well, that is until the sorority decided to go legal about it. First, Phi Sigma Sigma had a lawyer come up with the bright (note: not actually very bright) idea to send a bogus DMCA notice on Penny Arcade arguing that the post needed to come down because it violated the sorority's "trade secrets." That's funny, because the "C" in DMCA stands for "Copyright" and not "Ctrade secrets" and it's highly unlikely the secret handshake is, in any way, a "trade secret" in the first place. The lawyers followed this up by suing the "Jane Doe" in King County Superior Court in Washington. Why King County? There's no indication that Jane Doe is from that area, but that does cover where Penny Arcade is based -- and perhaps if you want to pressure a website to remove some content, you figure it'll be more amenable to seeing something from a local court even if (and this is kind of key) Penny Arcade was never a party to the lawsuit.

For whatever it's worth, Phi Sigma Sigma "won" the lawsuit because "Jane Doe" apparently was never properly identified and served, and thus Phi Sigma Sigma won a default judgment last fall, which is effectively meaningless. Except, with that "order" in hand, Phi Sigma Sigma's lawyers have been going around asking people to take down the handshake -- including us here at Techdirt. To be fair, at least with us, there was no clear threat involved if we refused -- as we have -- but as we've seen multiple times in the past year or so, many sites will immediately take stuff down after receiving a court order like that. Indeed, it appears that Penny Arcade chose (for whatever reason) to take down that thread themselves.

Of course, this certainly opens up the possibility of censorious mischief. Almost exactly a year ago, we wrote one of the first articles detailing an apparent "reputation management" scam that involved posting possibly defamatory comments on certain stories, followed by defamation lawsuits being filed against the John Doe commenters, only to have (miraculously!) a signed admission show up a couple of days later, allowing a tidy "settlement" to be reached, complete with a court order that can then be shopped around to various sites asking them to take down the content. A few months later, Paul Levy and Eugene Volokh tracked down a number of similar cases that were clearly being used to take down content someone didn't like, and abusing the court system to do so.

That does not mean that's what Phi Sigma Sigma was up to here, but a recently turned up FAQ about the lawsuit for members of Phi Sigma Sigma, while making it clear the sorority is not suing the websites, certainly suggests that the intent of the lawsuits is to obtain legal pressure to get sites to remove the content:

If you can't see those images, they are 3 questions and answers (numbers 5, 7 and 9) from a longer document, each of which has answers claiming the goal of these lawsuits is to get this content off the web. "We hope that through this lawsuit, we will have the authority to have any remaining and future posts also removed." "We are hopeful that through this legal action, they will be required to take down the post" and "Our ultimate goal is to have all posts related to our ritual removed as soon as possible." That last one is in response to a question specifically about "the outcome of this lawsuit." That certainly suggests that, contrary to other statements about identifying the individual responsible, or getting an injunction against them, the true intent is to get sites to delete information.

With Phi Sigma Sigma we have refused, as we should have every right to do (and, we might also state our opinion that it seems like a fairly poor decision on the part of the sorority and its legal team to make this effort that seems to serve only to call more attention to the content it wishes hidden from view). We also won't even bother to dig into how, elsewhere, the FAQ falsely claims that Phi Sigma Sigma has to take this action or it risks "losing" its intellectual property. First, this isn't true of copyrights at all (and there doesn't even appear to be any copyright issue here in the first place, questionable DMCA notice notwithstanding). Second, it only applies very narrowly to certain situations involving trademarks becoming declared "generic." That is not -- at all -- the situation with people posting the details of a secret handshake clearly identified as coming from Phi Sigma Sigma (and, once again, raises questions about the quality of the legal advice Phi Sigma Sigma is getting).

Now that brings us back around to the amicus brief that we filed Friday along with Public Citizen. It is in the case of Hassell v. Bird, that we wrote about last summer, in which -- contrary to nearly all Section 230 case law -- non-party Yelp was ordered to remove a review. The details of the case involve a lawyer, Dawn Hassell, who sued a former client, Ava Bird, for posting a negative review of Hassell's work on Yelp. Bird did not respond to the case, and thus the court granted a default judgment, as is standard. But here's where the court went a step too far: it then ordered Yelp to remove the posts. Yelp was not a party to the lawsuit, and basically all of Section 230 law says that it should not be obligated to remove the content (it can choose to do so, but Section 230 is clear that it should be immune from legal liability over its decision).

In the amicus brief, we explain how this runs counter to basically all Section 230 caselaw, but, perhaps more importantly, further point out examples (including our current discussions with the lawyers for Phi Sigma Sigma) where this kind of ruling could lead to abuse, and the forced removal of First Amendment protected speech -- whether under good intentions or ill intentions. Specifically, we note that, if the ruling in Hassell v. Bird stands, then an entity such as Phi Sigma Sigma, could potentially follow the same path as Hassell to force us to remove the details of that handshake, despite there being perfectly good First Amendment-protected reasons for leaving it posted. As Eric Goldman wrote when this ruling first came out, if it stands, it creates a de facto right to be forgotten in the US that could (and would) be widely abused to force sites to take down all sorts of content. We hope that the California Supreme Court will overturn the lower court's ruling.


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  • identicon
    Anonymous Coward, 17 Apr 2017 @ 12:09pm

    Weird. That was the same exact handshake me and my friends used as kids to identify who was allowed into the tree fort or not.

    reply to this | link to this | view in chronology ]

  • icon
    Berenerd (profile), 17 Apr 2017 @ 12:27pm

    What kind of handshake is that? Seems like a handshake someone would put on their luggage!

    reply to this | link to this | view in chronology ]

  • icon
    Berenerd (profile), 17 Apr 2017 @ 12:28pm

    If this goes through, Donald Trump would be able to pull back all of his stupid tweets and pictures of him and his small hands!

    reply to this | link to this | view in chronology ]

  • identicon
    Jordan Chandler, 17 Apr 2017 @ 12:34pm

    Sororities

    This confirms what I've always known: If you join a sorority or fraternity you're a bad person that should feel bad.

    Look at their idiotic rituals...

    reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 17 Apr 2017 @ 12:36pm

    If we don't actively protect our ritual now, we may lost the rights to claim the ritual as ours...

    Well sure...

    Member A first begins with the pointer finger and the thumb surrounding Member B's pointer finger and thumb. This is the "Phi". Then Member A wraps the remaining fingers, middle, ring and pinky around the hand as a symbol of the "Sigma". Depending on who is the senior member, the pinky finger is wrapped around the older member's hand. Next is the hand knock. It goes Knock. Pause. Knock. Pause. Knock, knock, knock.

    Because someone might try to copyright it as a Yoga move. Or something that Apple Watch owners do to exchange contacts. Or a roadside sobriety test. Or a cheat code using the new Oculus hand controllers.

    Heck, it was already the Pon Faar ritual in Star Trek III.

    reply to this | link to this | view in chronology ]

  • identicon
    Richard Hershberger, 17 Apr 2017 @ 1:00pm

    "Phi Sigma Sigma "won" the lawsuit because "Jane Doe" apparently was never properly identified and served, and thus Phi Sigma Sigma won a default judgment last fall..."

    Wait, what? No service means no jurisdiction, which means no judgment. Something has gotten confused here.

    reply to this | link to this | view in chronology ]

  • icon
    TKnarr (profile), 17 Apr 2017 @ 1:18pm

    Seems there'd be multiple grounds to argue that there's no case:

    1. The handshake and knock aren't trade secrets. Trade secrets require some economic value to their secrecy, and there seems to be no economic value in knowing how to access a PSS meeting or identify a PSS member.

    2. The information wasn't known to be acquired by improper means. PSS itself couldn't identify the source as a member, and they haven't identified a member the source could have gotten the information from. They assert that it could only have come from one of their members, but it's on them to prove that and they haven't.

    3. The information wasn't secret. They don't appear to make any assertion that the handshake and knock are never ever used in public. If they're used in public, there's a myriad of ways to acquire them without doing anything improper, eg. observing someone you know is a PSS member using them to identify themselves to someone else.

    reply to this | link to this | view in chronology ]

  • icon
    Jinxed (profile), 17 Apr 2017 @ 1:26pm

    Matter of interpretation

    "Phi Sigma Sigma (PSS) secretly stands for Philanthropic Social Society."
    "Pretty Stupid Sorority" is more accurate for not using a Non-Disclosure Agreement rather than the DMCA.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 17 Apr 2017 @ 2:02pm

    You'd think college educated people would know enough about life to understand when 10 lawyers say LOLWUT to your complaint, and you find one who says This is horrible I can help... they are getting screwed.

    Our rituals are sacred.
    You are not a church. Your history isn't that long. You are wasting any monies collected from your membership.

    Philanthropy doesn't mean making lawyers rich.
    Shame on your leadership and any of your members who are actual lawyers who haven't told you to stop this.

    In closing, might I suggest you seek out Tiffany of Tiffany VS Twitter fame for your next round of wasting money.

    reply to this | link to this | view in chronology ]

  • icon
    Atkray (profile), 17 Apr 2017 @ 2:04pm

    Unintended consequences strike again.

    With all the "crack downs" over on campus binge drinking apparently this sorority has chosen to use its budget on legal pursuits instead of parties.

    reply to this | link to this | view in chronology ]

  • identicon
    SpaceLifeForm, 17 Apr 2017 @ 2:14pm

    Obviously, one member was not...

    Barbara Streisand.

    Note: the Mason handshake is
    much easier.

    reply to this | link to this | view in chronology ]

  • identicon
    Whoever, 17 Apr 2017 @ 2:28pm

    WTF judge?

    Surely it can't be good law to give a default judgement when the defendant has not been identified, let alone served?

    What was this judge thinking?

    reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 17 Apr 2017 @ 2:56pm

      Re: WTF judge?

      "Tradition."

      The robo-signing scandals over the last decade led to default judgements against a great many people who didn't actually owe any money.

      The default judgements often happening because defendants were simply never informed. "Wrong address" and whatnot. The first they hear is when their wages or property gets seized. With the court case having already come and gone, it's too late to fight it.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Apr 2017 @ 3:43pm

    Section 230 shouldn't stop tge coirts from being able order tge posts removed. With a judgementin hand even a default judgement has legal value.

    While not specific party to tge case the site is not different from a public place bulletin board. If a court can order an item removed there then the online world should be no different.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Apr 2017 @ 8:19pm

      Re:

      "While not specific party to tge case the site is not different from a public place bulletin board. If a court can order an item removed there then the online world should be no different."

      A court can't order an item removed from a bulletin board. First Amendment and all. So, no. Your point is wrong. You don't know what you're talking about.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Apr 2017 @ 5:47pm

    I'm going to DMCA this...

    The "secret handshake" for jokes... Knock, Knock....

    /s

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Apr 2017 @ 5:50pm

    Again, the foundations of civilizations shudder, and only the government can save us. Clearly, for the defense of our homeland it will be necessary to monitor handshakes and check IDs to make sure that boyz, or anybody else with cooties, can use the secret handshake. It will, of course, be necessary to produce manuals and course materials to train DHS agents to recognize the handshake under any weather conditions; and to make it a crime for boyz or persons with cooties to approach any person to within range of a handshake in any location not monitored by DHS agents. All persons owning property where such meetings occur must be required to monitor their premises for the presence of BOPWC and remove them forthwith.

    The DHS should be required to review, every two years, the rules regarding real estate to see if any additional requirements should be imposed.

    Why should copyright holders have all the rights, and kindergarten cliques have no recourse but whining and pulling hair?

    reply to this | link to this | view in chronology ]

  • icon
    Advance Fee Fraud (profile), 17 Apr 2017 @ 11:49pm

    Article - Defamation Attorney Removal Shenigans

    This is great information. I have a case just like it where the attorneys served me via publication ( I was using a knickname withoug trying to supoena my blog or contact me via email which was clearly visiable, then just decided I lived in Ohio to get jurisdiction. I had to take it up on appeal. Ohio Trial # A1407210 & Appeal # C150598. After I filed my opening brief they dismissed it. I have a sanction motion pending now. I would like to get a copy of the Sorority Girl suit.

    reply to this | link to this | view in chronology ]

  • icon
    JustMe (profile), 18 Apr 2017 @ 7:41am

    Secret knock

    "Next is the hand knock. It goes Knock. Pause. Knock. Pause. Knock, knock, knock."

    How'd they get my secret knock?? I copyrighted that thing so NOBODY can use it.

    :P

    reply to this | link to this | view in chronology ]

  • identicon
    Anon, 18 Apr 2017 @ 8:09am

    Whenever I hear stuff like this...

    Whenever I hear stuff like this, or Shriners or Masons, or Scientologists, I think of Fred Flintstone and the Loyal Order of the Water Buffalo. Glad to hear that older girls too like to play dress-up to get away from the spouse for a while... another blow (?) for women's equality.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Apr 2017 @ 8:32am

    I can see why they want to keep that a secret.

    What a bunch of idiots.

    reply to this | link to this | view in chronology ]


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