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.