Libel Takedown Litigation

Someone Trying to Vanish My Post About Someone Trying to Vanish Another Post

In March, I wrote about a forged court order that someone was using to try to get Google to de-index online criticism of a New Britain, Conn. community activist (and volunteer city commissioner); now, someone has asked Google to de-index my post, plus a TechDirt post on the same subject.

|The Volokh Conspiracy |

Ken Haas is a volunteer member of a New Britain (Conn.) city commission, the Commission on Conservation, appointed by Mayor Erin Stewart; he also seems to be, more broadly, a bit of a community activist: For instance, he is involved in organizing a New Britain gay pride parade. According to a Google cache of the Twitter feed, @KenHaasCT, he is "An influencer of better environmental policies for the New Britain, Conn. watershed lands and aquifers."

In late 2016, Haas got into a public controversy with local activist Robert Berriault: Allegedly, when someone got in a Facebook political spat with Haas, Haas responded by writing, "You do know I have access to ALL city records, including criminal and civil, right???" Berriault took that to be a threat that Haas would misuse that access for political purposes and wrote about this on the New Britain Independent site, as well as in a not-much-noticed change.org petition calling for Haas's removal. Haas then called the police to complain about Berriault's posts, but the police officer reported that he "advised Haas that this was not a criminal act and that Berriault had every right to voice his opinion …. [W]hen you choose a career in politics that harsh cnticism comes with the territory."

And then things got really interesting: In March 2017, someone asked Google to deindex the New Britain Progressive article and the petition, and the request was accompanied with what looked like a court order in Haas v. Berriault. The order purported to be in a libel and false light invasion of privacy lawsuit and closed with:

Plaintiff is granted damages for all counts as to Defendant Robert Berriault. Defendant must also remove and retract statements made referencing Plaintiff Haas.

The trouble is that there is no such case. There is no such court order. There is no Connecticut Superior Court Judge named John W. Darrah.

There was, however, a federal district judge in Illinois named John W. Darrah, who presided over a federal case that bears the same case number as that in the ostensible Haas v. Berriault; one of the documents in that case shares some of the legalese as well. (He died very shortly after the order was submitted.) The purported Haas v. Berriault order seems to copy some parts of the real Darrah order, including the case number, the general format of the title, some of the language and Darrah's signature. (The original federal case, by the way, is Duffy v. Godfread, one of the Prenda Law porno-trolling collective cases, though of course it's a public document and anyone could have cut and pasted from it.)

Who submitted the forged order to Google? Commissioner Haas seems the likeliest intended beneficiary of the forgery and the takedown request, and his name (spelled as Ken Hass) was used on the takedown request. But it is of course possible that this was done by someone else, whether someone hired by Haas (with or without knowledge of what would be done) or someone else. I called Haas back in March to ask about what happened here, but he told me he had no comment.

Then I wrote about this on the blog, hosted at the time at the Washington Post; TechDirt covered it as well. The New Britain Progressive covered it as well, and then mentioned the incident again in December, as part of its "Top 10 of 2017" retrospective.

A week later, someone submitted a deindexing request to Google asking it to vanish my original Washington Post item and the TechDirt piece

In 1979, the U.S. Supreme Court recognized an individual interest in the "practical obscurity" of certain personal information. The case was DOJ v. Reporters Committee for a Free Press. As well, this information is harmful to me as it concerns unfounded information which never resulted in prosecution. Not only has the dissemination of this information never been legitimate, but its internet referencing is clearly harmful to my reputation as my professional and personal surroundings can access it by typing my first and last names on the Internet.

(Thanks to Dean Sterling Jones (Shooting the Messenger) for spotting the request, and, as always, to the Lumen Database for its invaluable role as an archive for these submissions.)

Now the submission doesn't explain how the "information" in my original post is "unfounded." It's true that it didn't result in prosecution, but the purported order submitted to Google in March is indubitably a forgery, whether the Connecticut prosecutor's office wants to try to act on that or not. Nor does the submission explain how "the dissemination of this information [has] never been legitimate"—I would think that writing about forgeries of court orders, especially (but not only) those that seem to benefit local officials and community activists, would be quite "legitimate."

DOJ v. Reporters Committee for Freedom of the Press holds that the federal government has no statutory obligation, under the Freedom of Information Act, to reveal "criminal identification records" to people who request them. But that doesn't affect all of our First Amendment rights to discuss crimes that we ourselves know about, and note who would have benefited from those crimes. (Tim Cushing (TechDirt) has also written about this incident.)

Fortunately, Google has not deindexed TechDirt's or my posts in response to this request, and I'm confident that it won't. But I thought it was worth noting that there has been indeed an attempt to vanish this story.

UPDATE: I slightly updated the paragraph about Judge Darrah, to note that he has died recently.

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37 responses to “Someone Trying to Vanish My Post About Someone Trying to Vanish Another Post

  1. Funny stuff. If he were slightly more clever about things, Ken Haas might have a bright future in politics. Maybe he’ll learn to keep compromising things more private, and when all else fails just smash with a hammer.

  2. You should see if you can get a copy of the new order from Google to see if it’s as obvious a forgery as the first one.

    1. There’s no order attached — it’s just a request to Google that it remove the material for the reasons given in the text that I quote.

  3. I can only scratch my head at the stupidity of someone who picks a fight with one of the most well known and respected law professors in the country. At least the second time he had the sense not to forge a court document. Actually, I am not scratching my head at the stupidity of Ken Haas, but the voters who elected him.

    1. Note that Haas is a volunteer mayoral appointee to the Conservation Commission, not an elected official.

  4. Maybe he will try to make THIS post vanish. That would be a triple-level vanishing act.

    1. “Anything you can do, I can do meta.”

      1. Shouldn’t that be, “Anything you can do, I can undo meta.”?

        Either way, in before the vanishing.

      2. Ah, good old Annie Get Your Court Order.

  5. The trouble is that there is no such case. There is no such court order. There is no Connecticut Superior Court Judge named John W. Darrah … copy some parts of the real Darrah order, including the case number, the general format of the title, some of the language and Darrah’s signature.

    Whew. I don’t know much, but I think that’s a really, really stupid thing to do. His initial petty threat wasn’t all that damning. Mr. Haas done goofed.

  6. So, here’s a question, how much proof of identity from the submitter can/should Google require when receiving a takedown notice pursuant to a judgment/settlement?

    1. If the order includes deindexing (and you subscribe to the validity of such 3rd party orders) then I don’t know that Google’s obligation to comply depends on who notified Google of the existence of the order. If the order doesn’t specify deindexing then Google has no obligation, again no matter who made the request.

      1. First, in most libel/slander cases Google is not a party and is not bound by the court order. Rather, as a courtesy, Google sometimes voluntarily removes material on request from the prevailing party in a civil suit even if they are not named.

        Second, the question isn’t about validity. It’s about whether they should establish the provenance of the request should it later turn out to be fraudulent.

    2. Google is a large corporation with its own in-house legal department. It even has a “global head of employment law,” for crying out loud. Its lawyers should be more than capable of checking whether a purported Connecticut court order was signed by a Connecticut judge who actually exists.

      1. Which is true but entirely besides the point of my actual question.

    3. In an ideal world, the public, including Google would be able to download copies of any legal notice directly from the Court’s server. It is then up to the Court to verify identities. The public, including Google, would need a way to find a Court’s server, given the legal description of the Court.

      The existing mechanism for notifying legal entities could continue to be used to notify entities to look for such notices, and provide credentials for accessing orders that shouldn’t be visible to the public at large.

      Obviously, this would involve significant infrastructure upgrades for the court systems in the US. This would pay for itself relatively quickly, because it would streamline access to legal proceedings.

  7. Has it ever been decisively proven that The First Law of Holes applies to the internet? Maybe somehow physics works differently in cyberspace, so if he keeps digging he’s not going to keep ending up in a deeper hole.

    1. Interesting thought. I believe the First Law of Holes still applies, even in quantum physics. đŸ˜‰

  8. I love it – recursive vanishing!

  9. I’ve said a lot of stupid shit in my day. Maybe I’m just paranoid, but I would tend to believe once any of my comments hits a server, it’s immediately copied to 10’s of government and private databases all over the globe where it lives forever. Somehow, my mouth remains undeterred. All I can do is delete the post, or reply that I wish I could take the comment back, as stupid as that might seem.

  10. Well, that certainly is a bunch of ________. You can’t just go around destroying records on the I_______, that would be ______ __.

  11. If you want to read about fake news, you could always tackle this story about a fake homeowner association filing real liens for fake debts.

  12. This wunderkind-turned-cyber harassing professor Eugene Volokh, truly believes he is above the law, and the smartest kid in any room. His bed partners are Google, Lumens and Techdirt. Tim Cushing is Volokh’s pet parrot. The two “companies”, Volokh and Cushing are engaged in a big happy orgy! Volokh’s computer addiction, and amicus brief submission penchant smacks of an individual with an extreme egocentric focus – an egomaniac. His condition is psychologically abnormal. You can also use the word to describe anyone like Eugene Volokh who’s also a self-centered jerk.

    1. Lawless: Can you elaborate a little? In this post, and my amicus briefs, I’m trying to report facts, as well as state my opinions about those facts. That is pretty similar to what newspapers, magazines, and briefs have done for centuries. Sometimes I write about particular people, and apparent misconduct that seems to involve them — that’s what newspapers, magazines, and briefs have done as well.

      How exactly is that “cyber harassing” or otherwise illegal (which is what “above the law” suggests)? What definition of “cyber-harassment” are you using that would explain how such reporting and commentary somehow become illegal? I’ve long condemned the label “harassment” as being often far too vague and overbroad; it looks to me like you’re helping prove that.

    2. Does it hurt being that ignorant Lawless?

    3. Don’t feed the trolls.

    4. Sounds like a lot of jibber jabber. Maybe you could turn off the internet, slow down, and 2 hours of PBS Nature every night for the next 3 weeks. If you’re too much in your own head, it won’t end well.

    5. And if you’re not sleeping at night, you definitely need to see a doctor.

    6. FlameCCT: The tenor of Lawless’s comment makes me think that perhaps this isn’t a matter of lack of knowledge — maybe there’s something more personal behind it. Lawless, is there some particular incident that you’re faulting me for? Is it my coverage of the matters involving Ken Haas, or something else? Let us know some more of the details, so we can better understand your criticism.

  13. I hope nobody makes my next post disappear…

  14. I think that forging a court document should be treated as a very serious crime, and should be vigorously prosecuted. I would think that the judge who’s signature was used would be particularly interested in this.

    A lot of this could be reduced if the government would come into the 21st century by using digital signatures backed by digital certificates. There is certainly a possibility that an extremely clever hacker with enormous computational power and lots of time could forge a digitally-signed document, but the knowledge, innovation, effort, and time required would drive this possibility practically to zero.

    I had always thought the USPS should have embraced electronic messaging and public key infrastructure, and provide secure (encrypted), digitally signed messaging for the public and government, as an extension and evolution of its mission, which is, in part, to “provide postal services to bind the Nation together through the personal, educational, literary, and business correspondence of the people.”

    1. (continued):
      (My recent use of the online services of the USPS has been disappointing in the extreme, and it seems they have outsourced the development of these services; they don’t have sense of urgency in resolving issues, and some very basic, obvious features simply don’t exist. For example, it took them 3 weeks to resolve an issue on their end that prevented me from creating Priority Mail labels; and the Click-N-Ship system lacks features that are commonly used in government and legal correspondence, such as including postage-paid return envelopes, addressing items to entities other than first-last name, and so on. Sorry for the long tangent, but it’s an example of how the USPS is not fulfilling their basic mission).

    2. Creating a PKI system for the courts (or the nation as a whole) is a daunting task.

    3. Personally, I would readily to opt in to a public/private partnership digitizing government services, with say Google or Apple using biometric data.

      That my phone unlocks with my fingerprint, and can login to websites with my fingerprint is so worth it.

  15. Dear Judge Darrah:

    I feel you should be aware that some asshole is signing your name to stupid court orders.

    cc Arthur B Modell

  16. Personally, knowing Robert W. Berriault, I wouldn’t be surprised if it was him who was the one behind the de-index attempt. I do know that the New Britain Democratic Town Committee tends to commit actions such as this. For example, they run a local blog, “The New Britain Progressive,” which I’m sure most are aware of in this case, but they will also block people on their various social media pages, therefore not allowing anyone who disagrees with them to express their own views on their articles. It almost seems that this was an attempt to censure you, Mr. Volokh, to protect Mr. Berriault’s image as he is equally a suspect in this case. I would also like to add that the former editor of the New Britain City Journal was recently censored by the New Britain Progressive. That very publication, the N.B.C.J., has been blamed for tarnishing the reputation of former Democratic Mayor Tim O’Brien. In essence, the Democrats in New Britain have been underhanded and continue to do so.

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