Graydon Head

Blog: Jack "Out of the Box"

Welcome to Jack "Out of the Box." This is a spin-off of the Firm's InfoLaw Newsletter, much like "CSI: Miami" is a spin-off from "CSI." Except without all the corpses. I plan to update the blog at least weekly. Really. It's not like when I used to promise my mom to clean my room once a week. I'm more mature now. And of course, the InfoLaw Newsletter will continue every two weeks. The blog will feature shorter pieces, and ideally, reader feedback. Should be fun. Oh yeah, and informative.

  • The CDA - A Better Shield Than Sword

    Aug 27, 2015
    Section 230 of the federal Communications Decency Act is a tremendously effective shield.  Web site operators have used it for years now to fend off suits seeking to treat the operator like the publisher of third party content.  Xcentric Ventures – the company that operates the Ripoff Report have thrived under this law.  Disgruntled consumers can post on the site at will listing their grievances against any business.  And while Ripoff Report allows the subject business to post a rebuttal, it removes content only after an arbitration process that requires a $2000 filing fee.  Some people consider that approach a form of extortion.  

    The CDA is a major part of the Ripoff Report business model.  So much so, that the Ripoff Report site contains this proclamation:

    Thinking of suing Rip-off Report? 

    If you are considering filing a lawsuit against Rip-off Report, click here for important information about applicable federal law. Do you really want to sue Rip-off Report? really need to read this link.

    But for all its utility as a defensive mechanism, the CDA is not as useful as a sword as Ripoff Report recently discovered courtesy of a Ninth Circuit Court of Appeals decision.  Xcentric had prevailed in a case filed by a lawyer named Lisa Borodkin on behalf of her clients Raymond Mobrez and Iliana Llaneras. Borodkin’s clients claimed Xcentric extorted money from them in the course of its business. The trial court dismissed those claims at the inception of the case.  It found that Borodkin’s clients had no claim as a matter of law.  The CDA played a large role in the court’s decision.

    Not satisfied with merely winning the case, Xcentric went in for the kill, alleging that Borodkin was liable to it for “malicious prosecution” – essentially bringing a case that had no legal or factual basis.  Xcentric argued that the CDA was so clear that Borodkin couldn’t have had any good faith basis in prosecuting the suit.   The appellate court affirmed a trial court’s finding that Xcentric failed to establish a malicious prosecution claim.  It noted that included in Borodkin’s complaint were allegations that Ripoff Reports own words may have led to the claim against it.  The CDA offers no protection for content supplied by the Web site operator itself.  And to the extent the complaint alleged Xcentric misrepresented the nature of its site. 

    So Xcentric had to be content with merely winning the original lawsuit.  The CDA proved to be the Dennis Rodman of federal law – great on defense, not such an offensive threat. 
    Go comment!
  • Maybe Now People Will Take Cyber Security Seriously

    Aug 26, 2015
    It is easy to make jokes about the Ashley Madison data breach.  But it’s not a laughing matter.   Certainly not for Ashley Madison, who is facing massive brand damage.  Think about it.  A site that facilitates infidelity relies on confidentiality almost as much as it relies on desperate housewives (and husbands --  apparently 70% of Ashley Madison customers were men).   So the minute the site isn’t secure its business model falls apart.  Imagine if Federal Express announced it could no longer make overnight deliveries. It’s kind of like that.   

    And the brand damage is only part of it.  Count on court cases springing up all over the place.  So what’s Ashley Madison’s exposure?  Well, the most likely liability will be in the form of breach of contract and/or fraud.  The most obvious claim is that customers submitted personal data based on Ashley Madison’s promise it would be maintained on the down low.  That didn’t exactly pan out.  And it appears that data about former users is included in the hacked data.  That’s a problem for Ashley Madison because it offered a service where for a fee it would remove any trace of a customer from its site.  It’s bad enough that the business model sounds like extortion, but it’s even worse if Ashely Madison took the money without wiping out the data.  That sounds like class action material.   

    And there could be even more esoteric claims.   Some states actually still recognize a tort called “alienation of affection” – it allows a jilted spouse to sue the “other” woman/man for breaking up a marriage.  It’s a stretch, but could Ashley Madison face alienation claims in those states that still recognize the tort?  Maybe less of a stretch could be wrongful death claims from survivors of suicide victims.   And what of folks who lose jobs as a result of the outing?  It’s not completely unrealistic to believe that an employee who lost a well-paying gig might seek damages.   

    And even aside from having to be a defendant, Ashley Madison could get really busy responding to subpoenas.  Apparently, Ashley Madison didn’t verify e-mail addresses.  So anyone could sign someone else up with the other person’s e-mail.  No doubt millions of husbands will claim this is what happened to them.  Several may actually be telling the truth.  And those unfortunate souls may want to sue the folks who signed them up.  That would mean a slew of subpoenas issued to Ashley Madison to begin the chain leading back to the culprit.      

    Perhaps the broad message here is to not set up a Web site to help people cheat.  The more narrow, but equally important lesson is to make sure your data security is as tight as can be.  To paraphrase Ashley Madison’s campaign – “Life is Short – Don’t be a Class Action Defendant.”
    Go comment!
  • ESPN 1, SPARTY 0

    Aug 19, 2015
    If ESPN’s Sports Center had a “Top 10” for judicial decisions, this one would be on it for sure.   An appellate court in Michigan earlier this week ruled that ESPN is entitled to the names of Michigan State University student-athletes who were listed as suspects in incident reports.  For a public access advocate like me, the decision is a no brainer.  But the court’s rationale is a valuable response to those folks who feel the media is merely out to sensationalize information.   

    In September 2014, ESPN submitted a request to MSU under Michigan’s freedom of information act asking it to provide incident reports involving a list of student-athletes over a specific period of time. The University produced two sets of records, but redacted the names and identifying information of the suspects, victims, and witnesses.  MSU contended that the information was “of a personal nature” and its disclosure would “constitute a clearly unwarranted invasion of an individual’s privacy.”  

    Both the trial court and the appellate court sided with ESPN.  In the appellate court’s view, even conceding the dubious contention that criminal incident reports contain information of a “personal nature” the release of the names simply did not constitute an unwarranted invasion of any individual’s privacy.  And this is why:  

    The disclosure of the names of the student-athletes who were identified as suspects in the reports serves the public understanding of the operation of the University’s police department. ESPN seeks the information to learn whether policing standards are consistent and uniform at a public institution of higher learning. The disclosure of the names is necessary to this purpose. In order to determine whether the student-athletes were treated differently from the general student population or from each other on the basis of the student-athlete’s participation in a particular sport or the renown of the student-athlete, it is necessary to know the student-athlete’s name and the nature of the allegations involved in the investigation. Only then can ESPN compare and contrast the information within the requested reports to both other incident reports and other cases disclosed via news media. Further, ESPN requires the student-athletes’ names in order to facilitate further investigation into whether other governmental agencies agreed with the University’s handling of a particular student-athlete’s case. Consequently, even if revealing the names of the student-athletes in the context of the reports amounts to the revelation of information of a personal nature, that revelation is not unwarranted. . . . Under the circumstances, the public’s interest in government accountability must prevail “over an individual’s, or a group of individuals’, expectation of privacy.” 

    There is a tendency among some high volume social media commenters to assume that the media seeks information for no purpose other than to sensationalize events or embarrass the subjects of the report.  And that is simply not true.  Investigative journalism requires investigation.  And an investigation means looking at information and testing theories.  How a state university (and potentially other state officials higher up) deals with criminal conduct among student athletes is a worthwhile issue to investigate.  This decision wisely recognizes that point. 
    Go comment!
  • Two Little Words Lead to Big Litigation

    Aug 18, 2015
    How much trouble can two words cause exactly?  It probably depends on the words.  But the words “actually yes” have led to federal litigation in Minnesota and a court decision that may impact school discipline across the country.  All of which begs for some background.  

    In 2014, Reid Sagehorn was a senior at Rogers High School in Minnesota.   He was an honor student, a member of the National Honor Society and a captain of the basketball, football and baseball teams.  Pretty much exactly like my high school experience except for, you know, the academic awards and the athletic achievement.  Sagehorn had a clean disciplinary record and had previously obtained early admission to North Dakota State University.   

    On January 26, 2014, an anonymous poster wrote the following on a Web site entitled “Roger confessions”:  did @R_Sagehorn3 actually make out with [name of female teacher* at Rogers High School]?”
    *editor’s note – the court apparently deleted the name of the teacher.  As a joke, Sagehorn responded “actually yes.”  And that is when the trouble began.  Apparently, student teacher make out sessions are no laughing matter in Minnesota.   

    Despite the fact that Sagehorn delivered his response after school hours, off school property and at a time when he was not engaged in any school sponsored activity,  when a parent complained about the posts, the Rogers disciplinary process shifted into overdrive.   Principal Roman Pierskalla summoned Sagehorn to his office.  Also present for the meeting, in full uniform, was Officer Stephen Sarazin, a police officer with the local police department.    Initially, Pierskalla suspended Sagehorn for five days, claiming that Sagehorn’s post violated school policy prohibiting “threatening, intimidating, or assault of a teacher, administrator, or staff member.”  Eventually, Pierskalla decided that an expulsion was in order.  That put the Sagehorns in a bind, since an expulsion would likely have resulted in North Dakota State revoking its early acceptance.  Faced with the rock and hard place dilemma, the Sagehorn voluntarily withdrew from Rogers.   

    But the school was not the only party overreacting.  Rogers Police Chief Jeffery Beahen, who was not present at any meetings with Sagehorn, talked to local media and informed them that Sagehorn had committed a crime and “could face felony charges.”  Despite the fact that Sagehorn was a juvenile, Beahen freely gave his name to the local media.  The County Attorney’s office, apparently the only adult in the vicinity, wisely determined there as insufficient evidence to charge Sagehorn with a crime.  Much to Beahen’s surprise there is no felony bragging on the Minnesota books.   

    Subscribing to the “don’t get mad, get even” philosophy, Sagehorn and his parents filed a federal suit against the school and Chief Beahen for violating his constitutional rights and defamation.  The school and Beahen each moved for “judgment on the pleadings.”  The school claimed that it did not violate  Sagehorn’s constitutional rights, as it was permitted to discipline him for his speech, notwithstanding the First Amendment.  The court disagreed. While a public school may discipline a student based on the content of the student’s speech, it may do so only to prevent a “substantial disruption” or if the speech is obscene, lewd vulgar or harassing.  Sagehorn’s two word response was none of the above.   

    Police Chief Beahen  argued that Sagehorn failed to identify specific defamatory comments.  The court disagreed, noting Sagehorn’s complaint set out several specific, actionable statements.  And the court flatly rejected Beahen’s contention that he never mentioned Sagehorn by name.  The court noted that this defense fails when the subject of the comments is clearly identifiable.  Given the context of Beahen’s comments, there was no doubt as to whom he was referring.  

    The case is a warning to public school districts.  Kids do indeed say the darndest things.  And these days, they say them on social media platforms.  It is probably a good idea not to overreact when it happens.     
    Go comment!
  • Devil in the Details

    Aug 13, 2015
    A plaintiff named Keyonna Ferrell recently failed in her efforts to hold Google and Yahoo liable for defamation.  There were many reasons why she failed, but the most glaringly obvious one is that she simply failed to allege that Yahoo or Google said anything about her that was false.  And she failed in pretty much record time.  She filed her complaint on June 2, and the court tossed it on July 31.  That is the judicial equivalent of a nanosecond.   

    In fact, neither search engine really said anything at all.  Ferrell claimed she was defamed because images of her that she’d removed from Pinterest continued to be accessible via Google and Yahoo after she had removed the images from Pinterest.   But Ferrell never alleged that the images conveyed any false information.  And that doomed her case.  

    A defamation plaintiff has to establish that information published about him or her is, first and foremost, untrue.  We can say whatever terrible things we wish about someone and be free from liability so long as our facts are straight.  Ferrell seemed to gloss over this detail.  In short, she made it easy for the court to toss her suit.   

    But even if she had alleged that the Pinterest images were somehow “false” it’s pretty clear that Yahoo and Google would not have been liable.  Section 230 of the federal Communications Decency Act provides that interactive computer service providers (Yahoo and Google qualify) are not considered publishers of content supplied by third parties.  So I can’t see how Ferrell could have prevailed in any event.  

    What Ferrell really seemed to want was a court ruling that she had a “right to be forgotten” – that is, once she took the information down, she was entitled to be free from it.  But no one is entitled to such relief.  The court did the right thing in kicking this case out almost as soon as it was filed.  
    Go comment!
  • Muddy Waters in Planned Parenthood Video Controversy

    Aug 10, 2015
    Ask anyone who’s seen the undercover videos of Planned Parenthood staffers discussing the donation of fetal tissue.  Somebody did something awful.  But what was awful and who did it depends on who you talk to.   

    The folks who are horrified by the practices of Planned Parenthood no doubt think the awful act is selling the fetal tissue.  And in this view of the world, the organization engaged in that awful act is Planned Parenthood.  

    But there are two sides to the story.  And other folks think the awful act is the surreptitious recording itself.  And that would make The Center for Medical Progress guilty of the awful act.  And that begs the question whether the Center for Medical Progress violated any law.  And the answer is not entirely clear.  The answer depends in part on where the filing took place.  Most states permit a conversation to be recorded so long as one party to the conversation consents.  And the consenting party is allowed to be party recording the conversation. So here, at least in those “single consent” states, the Center for Medical Progress is probably off the hook.  

    But there’s also a question about potential liability for fraud and trespass.  And that depends on what the Center for Medical Progress folks told Planned Parenthood.  If they lied about who they were and why they were there.  It’s conceivable that they could be liable for fraud and even trespass.  A key question is whether the videographers gained access to places where the public was otherwise not permitted to be.  If they lied to get access to some part of the premises not generally available to the public, they may have trespassed.  But if they entered an area open to the public and lied about why they were, they probably didn’t.  The case of  Desnick v. ABC offers the best discussion of this distinction.  And in the Desnick case, the court found ABC had not trespassed when it had producers enter an ophthalmologist’s office and expose his fraudulent practices.    

    Assuming the ends don’t justify the means, then it matters a lot about how The Center for Medical Progress went about its investigation.  We will no doubt hear more on this in the days to come.  In the meantime, here’s an interesting discussion on the medical and journalistic ethics it raises.  
    Go comment!
  • Religious Freedom and Gay Marriage Meet on the Gridiron

    Aug 06, 2015
    The tension between gay rights and religious freedom has spilled over into the world of sports broadcasting thanks to a lawsuit filed by former SMU and NFL running back Craig James.  James, who along with Eric Dickerson formed the “Pony Express” at SMU, lost his job with Fox Sports allegedly based on comments James made condemning gay marriage.  For James, the issue is one of religious discrimination.   The ultimate decision in the case may provide some insight into how courts will resolve this tension going forward.  

    James had a 14 year career as a college football analyst with ESPN. But he left the network in 2012 to run in a primary for the Republican nomination for the U.S. Senate.  James lost the election to Ted Cruz.  In August, 2013 Fox Sports Southwest announced it had hired James as a college football studio analyst.  And that gig lasted until September 1, 2013 when Fox terminated James.  

    According to James, Fox fired him due to statements James made during the Senate campaign.  Apparently, Tom Leppert, a candidate for the nomination participated in a gay pride parade.  In a debate, Ted Cruz criticized Leppert’s decision and an audience member then asked James about his views on gay marriage.  James responded: “I’m a guy that believes in a man and a woman . . . Adam and Eve—and what the Bible says.”  He concluded by emphasizing, that “as Christians we’ve got to stand up” regarding marriage.  

    Shortly after the firing, a Fox VP for communications told the Dallas Morning News,  “We just asked ourselves how Craig’s statements would play in our human resources department. He couldn’t say those things here.”  

    In his lawsuit, James claims a breach of contract, but in addition, he contends Fox discriminated against him based on his Christianity.  The complaint characterizes the damages as “irreparable” in that he has been unable to find work in the industry and endorsement deals have evaporated.    And so here we are.  On the one hand, an employer would prefer not to offend a sizable segment of the population and on the other hand, a television personality thinks he should be able to exercise his religion.  And his ability to exercise that right presumably includes the right to proclaim his beliefs.  I asked some colleagues who practice employment law for their thoughts.  

    They noted that Fox will argue that it had a legitimate, non-discriminatory reason for terminating Craig’s employment. But they also pointed out that Fox may have a tough set of facts.  Here’s the problem.  It’s pretty clear that firing an employee based on his religious beliefs constitutes discrimination. Firing an employee for acting on those beliefs, though, may be lawful.  For example, if an employee insists on aggressively proselytizing in the workplace, the employer can order it to stop and fire the employee if it doesn’t.   

    What does that mean for Craig James and Fox Sports?  From the complaint, it appears Fox decided to fire James for comments he made before he was hired, far away from the Fox studio.  So does that mean Fox terminated James because he disclosed his religious beliefs? And if so, that kind of sounds like they fired him not for any particular conduct, but rather for his beliefs. That may sound like a fine distinction, but it could be critical.  

    At this point, we are at the kickoff stage.  The lawyers will engage in discovery, file motions and advance their legal arguments.  It’s way too soon to predict an outcome.  But it seems clear that courts will deal with this type of conundrum for years to come. 
    Go comment!
  • Roseanne Barr Off The Hook

    Jul 31, 2015
    The parents of George Zimmerman saw a Florida judge throw out their case against Roseanne Barr.  That is certainly the correct decision, but it doesn’t mean I have to be happy about it.  The First Amendment is the First Amendment and it apparently allows people to be stupid.  And obnoxious too.  

    Back in March of 2012, Roseanne sent out a number of tweets, several of which identified the home address of Gladys and Robert Zimmerman, the parents of George Zimmerman.  In one message she tweeted “If Zimmerman isn’t arrested I’ll rt (re-tweet) his address again – maybe go 2 his house myself.”    

    The Zimmermans filed suit claiming Barr’s tweets caused them emotional harm and infringed on their privacy rights.  The court’s decision to toss the suit ended the legal journey, at least pending appeal.     

    The problem for the Zimmermans was the simple fact that their address was a matter of public record.  And it’s just not possible to sue someone for disclosing information that’s already publicly available.  I suppose an argument could be made that exposing the address to the world (they call it the worldwide web for a reason) takes matters to a whole new level, and therefore creates a cause of action.  But I’m not aware of a case that says that.  

    While the court didn’t explain its ruling in any detail, Barr’s lawyers also argued that the Zimmermans interjected themselves into the controversy – by publicly defending their son -- and therefore sacrificed their privacy interest.  While we’ll never know why the court ruled the way it did there’s a part of me that hopes this wasn’t the case.  Seems like a pretty tough choice for a parent – either follow your instincts and protect your son or retain some semblance of normalcy.   

    I agree that publishing a publicly available address simply doesn’t equal invasion of privacy or infliction of emotional distress.  I have a tougher time agreeing that being a parent makes you fair game for a vindictive idiot like Roseanne.   
    Go comment!
  • Truly Stupid Laws

    Jul 28, 2015
    I was not aware of this fact until I began writing this post, but there are Web sites dedicated to highlighting “dumb laws.”  These sites tend to list obscure laws that were enacted at one time and never repealed.  So, for example, in Ohio it is illegal for more than five women to live in a house.  Having grown up with five older sisters and a mom, it now appears I came into this world in a criminal enterprise.  But ideally the statute of limitations has run on this one, so I assume I’m safe.  

    But in all of these lists, I’ve never seen any mention of the Tiahrt Amendment.  And that is inexplicable because it is a stunningly stupid law.  I became aware of it recently in my efforts to assist with an open records request for information on guns confiscated in the city of Cincinnati.  

    Since 2014, Cincinnati police have confiscated almost 930 illegal guns.  So one might think it interesting to see where these guns were sold.  Imagine that there was a large number of arrests for underage drinking in some location.  And imagine if you could determine where those kids were buying their booze.  And suppose data indicated a high percentage of the sales to underage drinkers was at one or two stores.  That would probably allow police to target those stores and maybe put a stop to the illegal sales.  Any part of that hypothetical not sound reasonable?  

    Now, instead of 12 packs of Nati Lite, substitute guns that you know, kill people.  Same logic applies, right?  That’s a trick question because logic rarely comes in to play when talking about gun legislation.  The data on gun sales exists.  The Department of Alcohol Firearms and Tobacco requires dealers to report it.  And it would be easy for the public to find the information via a Freedom of Information Act request.  But that’s where the stupid Tiahrt Amendment rears its ugly head.     

    The Tiahrt Amendment, which was originally slid into an ATF spending bill in 2003 essentially puts that data off limits to the public.  And I mean way off limits.   The Amendment prohibited the ATF from spending any money to release any gun trace  or sales data in response to a FOIA request.   Under the Tiahrt Amendment, ATF is prevented from disclosing valuable crime gun data to the press, advocacy organizations, and scholars who are studying the problem of guns and crime.  

    Apparently, that restriction wasn’t enough to satisfy the gun lobby, because later on, the Amendment was expanded so that the data was not subject to subpoena in a civil action, nor could it be used as evidence in any civil action in any state.  Typically, courts are allowed to make their own rules about what evidence can or can’t be introduced into evidence, or discovered in a civil proceeding.  It’s called “separation of powers.”  Our founding fathers adopted this framework for a reason.   But apparently the gun lobby loves the Second Amendment so ardently, they tend to gloss over other parts of The Constitution which they purport to love so much.    

    And let’s be clear.  There is nothing in the Second Amendment that prevents the government from maintaining data on gun sales, nor prevents the public from being informed.  The Tiahrt Amendment is motivated not by principle, but by sheer self-interest and callousness.  It is a law that does not merely seek to rewrite history, but to rewrite reality itself.  And it belongs at the top of any list of dumb laws.    
    Go comment!
  • Bogus Stories - A Coming Thing?

    Jul 17, 2015
    Here’s a Dan Gillmor post from Slate talking about a recent bogus online post reporting the likely sale of Twitter.  The report came from “” and a lot of people naturally assumed that meant the post came from the Bloomberg News Service.  It didn’t.  

    The bogus post apparently caused a brief 8% uptick in Twitter’s stock price, although the share price came back to its previous level before the end of the day.  But the most interesting part of the post for me was the author’s prediction that this type of thing is likely to occur frequently going forward.  And he gives several reasons.  

    First is simply lax reporting.  Media outlets reported on the post without taking any steps to verify its accuracy.  And had they done so, they probably would have spotted some clues.   For instance, the post referred to Dick Costolo as “Costello.”  Sure, mistakes happen, but that’s a pretty big one, and should have been a red flag.   
    Another thing that should have given some pause was the domain name of the poster – “”  Bloomberg’s actual domain is “”  Folks who fell for the bogus post didn’t pay attention to the suffix.  And that is not entirely on them.  As Gillmor points out, ICANN, (the Internet Corporation for Assigned Names and Numbers) is at least partially responsible.  ICANN made the decision to expand “top level domains” and that’s what makes names like available to scammers.  The expanded pool of top level domains means more opportunities for hoaxes.  And, as Gillmor points out, probably means legitimate organizations like Bloomberg may need to buy up an increasing inventory of domains to prevent this kind of abuse.  

    But the lesson from this episode is for all of us to be a little more skeptical of what we read online.  The clues are there, we just need to look for them.   
    Go comment!
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