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.