Rail Line Can’t Force Web Site to Reveal Critics

Rail Line Can’t Force Web Site to Reveal Critics, Public Citizen Argues

Texas Court Urged to Dismiss Suit Filed Against Internet Message Board Host

WASHINGTON, D.C. - A Texas railway company that is suing to identify people who posted critical parodies on an Internet message board has no right to demand that the Web hosting company identify the posters just because the rail line finds the material offensive, Public Citizen told the court in a motion filed Friday.

The District Court in Tarrant County, Texas should dismiss the suit against Network54 Corp., the hosting company, said Public Citizen, which is representing Network54 Corp, along with local counsel David Broiles of Fort Worth. BNSF Railway Company’s suit does not provide any legitimate reasons for Network54 to provide information that would identify the authors.

BNSF, a Fort Worth company, filed the suit after two parody news articles appeared on an Internet forum hosted by Network54 Corp. Both of the anonymous posts make fun of controversial railroad union issues. The suit names Network54 and two John Does.

However, the Texas court has no jurisdiction in the matter because
Network54 is a California company and has no offices, employees or any other physical presence in Texas, Public Citizen told the court.
Additionally, Network54’s terms of use for its forums clearly states that the host is not responsible for the accuracy or legitimacy of items posted on its site.

“Apparently the people who run this railroad need a refresher course in American civics, particularly the part where they discuss the First Amendment and freedom of speech,” said Paul Alan Levy, a Public Citizen attorney. “This is just another example of a company trying to use the courts to censor and intimidate its critics.”

To read the motion, go to
http://www.citizen.org/documents/TexasMotiontoDismiss.pdf.

N54/Steven Roussey/My Weblog

Photoshop/Illustrator jockey?

If you are fast and furious with Photoshop and/or Illustrator, and want to help with v3, shoot me an email...

N54/Steven Roussey/My Weblog

Railroad Company Can't Force Message Board Host to ID Posters, Public Citizen Tells Court

Railroad Company Can't Force Message Board Host to ID Posters, Public Citizen Tells Court

BNSFs Subpoena Derails Free Speech, Lacks Evidence of Harm and Fails to Follow Basic Procedural Rules

WASHINGTON, D.C. A Texas railroad company is way off track in thinking it can force an Internet provider to uncover the names of posters on an industry message board, Public Citizen said in a brief filed today in the Superior Court of Los Angeles County, Calif.

Public Citizen opposed Burlington Northern Santa Fe Railways (BNSF) motion to compel Network54, a California-based Internet host, to reveal the identity of two posters on its United Underground Railroad Message Board.

In the brief filed today on behalf of Network54 and one of the posters, Paul Alan Levy, an attorney for Public Citizen and lead counsel in the case, argued that BNSFs motion to compel be denied on the basis of First Amendment protections.

The two communications in question, which mock labor relationships within the railroad industry, were posted on United Underground Railroad Message Board, an unofficial site popular among railroad workers hosted by Network54. Public Citizen maintains that because the postings are a parody and not defamatory, they are protected free speech. Furthermore, Network54s own First Amendment rights allow it to keep the names of its users anonymous

In BNSF Railway Co. vs. Network54, the railroad company, claiming that it needs the names to pursue a defamation case, issued a subpoena in Fort Worth, Texas, to compel Network54 to identify the posters. Network54, however, is based in California. Los Angeles Superior Court Judge Gregory Alarcon pulled the switch on BNSF at the first hearing, dismissing its petition for pre-litigation discovery because of procedural flaws.

In its motion to compel compliance with the subpoena, BNSF is now arguing it needs the information not to sue the two John Doe posters, but to decide whether it should sue them. Either way, California law doesnt permit discovery for the purpose of identifying defendants in a possible suit that has not yet been filed, Public Citizen said in its brief. Network54 has posted the subpoena, and related legal correspondence, on the message board but is refusing to identify posters who wrote about BNSF. However, the boards climate already has showed signs of a chilling effect, as BNSF-related messages have dwindled.

Public Citizen opposes the motion to compel on the grounds that BNSF has not fixed the procedural flaws or presented any evidence that harm done to the company outweighs the posters First Amendment rights. Furthermore, BNSF is seeking discovery not permitted by California law and jeopardizes the established right to anonymous free speech without any evidence that the protected speech is defamatory, false or any way actionable.

The reaction to these posts on the message board itself suggests that nobody took these parody posts seriously except railroad supervisors who apparently have no sense of humor, said Levy. The right of anonymous speech demands protection against frivolous claims of defamation like this one.

Local counsel for Network54 and John Doe is Yvonne Renfrew, a Los Angeles lawyer.

READ Public Citizens brief.

LEARN MORE. Public Citizen has a record of defending the First Amendment rights of Internet users.

N54/Steven Roussey/My Weblog

Some things are such a waste of time...

For example. Thanks to Public Citizen for dealing with these things!!

N54/Steven Roussey/My Weblog

No more Jury Duty

Who knew both Chris and I would get called to Jury Duty on the same week. Then add in the 4th, and its not been the most productive last 10 days... sigh.

N54/Steven Roussey/My Weblog

CSS 101

We are going to work with some very small test groups next month, broadening them each week. We are going to start with the most technically advanced first, as we want to cut to the chase, as it were.

Skills in HTML, CSS, and graphic design go to the top of the list. Knowing the group dynamics of a big forum helps a lot too!

Anyway, for those interested in the upcoming limited tests, and want to advance themselves on the list, I suggest getting to know CSS. Just to get you started, I found this CSS No Crap Primer. It is a start. You can advance from there...

N54/Steven Roussey/My Weblog

800,000,000

File Lawsuit First, Ask Questions Later

This week, our president, Chris Moser, is in Washington D.C. with the US Chamber of Commerce at congressional hearings about lawsuit abuse. We have experienced such "shoot first" abuse. When it is a lawyer, its "File Lawsuit First, ask questions later." Never mind the damage...

In a nutshell, someone posted a message on a bank related forum that is hosted with us that listed the strawberry farmer as someone not to deal with, in particular, relating to the buying and selling of gold bonds. So he sued us for "damaging" his name. No call, no letter, no email. Just a lawsuit before Christmas. And when combined, it ended up at about $800,000,000.

All sorts of things get posted when you have over 5,000,000 people using such a service as ours. We very much try to accommodate people that have been hurt by what others say, within reason. The nicer the request, the more accommodating we are. The nasty legalese letters generally have the opposite effect, and the messages get left up. No need for us to be subpoenaed if the message is still there for all sides of a potential lawsuit to see.

What about our liability that these, and other lawyers claim? What is the liability of AT&T when someone says something bad about someone else on the telephone? Do they get sued? Does a judge sign an injunction that would require AT&T to monitor all phone calls to make sure that so-and-so does say that bad thing about such-and-such? Well, back in the early days, it was a real question. So common carrier laws were created. In the same vein, the CDA section 230 provides us the same protection as the common carrier laws protect AT&T.

So the whole point of the lawsuit wouldn't pass muster in the first place. And these attorneys (Frederick Lowe, Edward Fagan) would have and should have known that. Of course, in their haste to sue before Christmas, they made lots of mistakes.

5.231.54. I guess the whole copy and paste thing was just too complex. Who is at that address? A small branch of John Hancock, which was left wondering how they ever got pulled into a lawsuit where they were also being sued for $800M. To plaintiffs, it was obviously a conspiracy in the financial industry to sully their prospects at winning billions of dollars. With John Hancock owning this Network54 thing, it was obviously part of this grand conspiracy with CommerzBank and the government of Germany. Suing the wrong company is not new to Mr. Fagan.

Which brings out story back to Hitler. Hmm, why do these things seem to always come back to Hitler? Why am I now connected in some bizarre way to Hitler?

Seems that some gold bonds from after the first World War were issued by Germany for reconstruction. Eventually Hitler declared them worthless. Then another World War. Then a final treaty to deal with all these things like the bonds. So some Florida farmer got a hold of some of these and decided to sue someone. Everyone it seems.

Sounds just up Mr. Fagan's alley. Whether it is suing 20th Century Fox over the movie Borat, the US National Oceanic and Atmospheric Administration for German tourists hit by the tsunami in Thailand, South Africa over apartheid, or Swiss banks over the Holocaust, if there is sighting of a multi-billion-dollar lawsuit, he seems to be there.

After being informed of their mistakes (we didn't write the message, we didn't read and publish it, we didn't even know about it, we aren't a subsidiary of some branch office of another company in Florida, in fact we are a California company, so you should sue us here, etc.), they still kept up the battle. One of the things that they eagerly wanted was the IP address of the poster. The irony is that the forum owner had the "Show IP Address" option active, and as such, they already had the IP - months before when they originally filed the lawsuit. In fact, since they printed and copied the message into the original complaint, they proved that they had it all along. Their internet "experts" were that good.

So what happened? All motions were denied by the judge. Mr. Fagan was removed from this case. Mr. Lowe tried to get out of it as well. Mr. Fagan has since seen disbarment hearings, the result of which I don't know, and possible bankruptcy. He should watch "My Name is Earl." Might learn something about karma. The poster was never identified. The forum owner still doesn't know that he was also being sued for $800,000,000 (we got him dropped). Fulwood did not drop the case against us until we filed our motion to dismiss, then it came fast and furious to drop all claims before the judge had time to rule on it. I really wanted to push sanctions on the attorneys for filing frivolous lawsuits, and countersue Fulwood.

At that point though, we had already diverted so much of our attention for a long period of time, and continuing to do so, with little chance of seeing cash payback in the end was not the right choice of action. For a three person company, that was already seven months of our time. Being distracted. No more.

Still wish we could get back all those attorney fees we paid in two states (our attorneys were fantastic, by the way). And the time. We really want that time back. And we are still spending some time on this. Chris is in Washington D.C. right now helping to change things, and I'm writing this blog entry.

You can help too. Talk to your elected officials about the waste and damage brought on by frivolous lawsuits. And pass the word about our story. Hit the Digg button. Email your friends.

N54/Steven Roussey/My Weblog

Their "experts" in the internet field stated that employees of Network54 must be the ones posting since it was on our domain name. If they looked at the home page, they would understand that we are a forum hosting company. Maybe I overrate their intelligence. They were so smart as to figure out our IP address for network54.com as well! Its 205.134.231.54. So they wrote down 205.13