Libel Takedown Litigation

Attempted Vanishing of Online Posts, All the Way Down

Don Lichterman was convicted of forgery; I wrote about it. Someone using his name tried to get Google to vanish my article; I wrote about that. Now someone is trying to get Google to vanish that later article -- and to vanish online court records that refer to Mr. Lichterman's case.

|The Volokh Conspiracy |

Back in April 2017, I blogged about a federal forgery prosecution (here's the Reason paywall-free version of the original Washington Post blog post):

Don Lichterman, who runs some small independent music labels (Sunset Recordings and some related companies), was sued for copyright infringement (Abshier v. Sunset Recordings)—and got so upset about what he saw to be libelous statements about him made as a result of the lawsuit that he forged a libel takedown order to send to WordPress, which hosted the blog that contained the statements. Lichterman was caught and prosecuted for forgery (U.S. v. Lichterman), and eventually pleaded guilty.

Earlier this month, I learned that someone has been trying to get Google to deindex that very post (i.e., keep it from showing up in search results, for instance when someone is Googling "Don Lichterman"), so I blogged about it. Now I see that someone, again using Lichterman's name, is trying to deindex my original Washington Post blog post, the Reason archives copy of that post, and my new Reason post (see this Lumen Database copy of the takedown request). Indeed, that person is also trying to deindex three online copies of court dockets, at PacerMonitor, CourtListener, and PlainSite; two refer to Lichterman's forgery prosecution, and one to the Abshier case that indirectly led to the forgery. (See also this takedown request.)

Now what could be the basis for this request? It's not a court order requiring the removal of various pages; such an order would be unconstitutional, but in any case no such order exists. Rather, it's an order from the forgery case that states, in relevant part,

The Court has received the attached letter from the defendant. The letter states that certain documents should be filed under seal, but notes that the sentencing transcript is not filed under seal.

The Court was never asked to, and did not, file the sentencing transcript under seal. In any event, there was no basis to seal the sentencing transcript.

The Court did order the Pre-Sentence Report, and the Sentencing submissions fron the parties to the Court, to be filed under seal, and they were so filed.

The Court also told the parties to file their submissions in the record not under seal after redacting any personal identifying information.

The record reflects that the Government submission was so filed. Defense counsel should also ensure that its subnission is filed in the record not under seal, after redacting any personal identifying information.

There is no basis for any other action by the Court.

And the "explanation of court order" accompanying the deindexing request says,

deletion or redaction of 'all personal identifying information' (Don Lichterman) and therefore the name itself must be stricken from all documents and from your network.

But of course the court order says nothing about deleting or redacting "all personal identifying information" generally: Rather, it notes that the prosecution and the defense were ordered to file their "Sentencing submissions" (the referent of the word "submissions" in the next paragraph) "after redacting any personal identifying information."

Nothing orders anyone, whether the parties, the court, or anyone else, to redact Mr. Lichterman's name or other information from any other document. Indeed, the Criminal Complaint to which I linked in my posts remains unsealed and unredacted in the court records (because it's not one of the sentencing submissions). Likewise, the dockets at PacerMonitor, CourtListener, and PlainSite are drawn from court dockets that continue to include Mr. Lichterman's name. The order offers no basis for deindexing anything, either as a matter of legal obligation or as a matter of respect for a court's legal or factual ruling. (Google sometimes deindexes pages that have been found by a court to be libelous or otherwise legally actionable, but there is no such finding here.)

The Google people understand this, I think; they haven't deindexed any of this material, and I expect that they won't. But someone seems to be pushing the contrary view. If you ever get takedown requests or deindexing requests based on theories like this, be skeptical.

UPDATE: Tim Cushing (TechDirt) also wrote on this matter.

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20 responses to “Attempted Vanishing of Online Posts, All the Way Down

  1. What’s the general remedy for something like this? Will the courts and other federal employees ignore this until it rises to the level of forgery? Could a private individual investigate and pass it off to come federal criminal prosecutor? It certainly seems aimed at a perversion of justice (in my IANAL understanding of that phrase). If victim prosecution were possible, are there federal laws which would make victim prosecution scary enough to deter repeats?

    1. I think this sort of deindexing request falls in the category of a bad argument that Google and others should refuse to go along with — it’s not itself a forgery or otherwise fraudulent.

  2. This is an inside job!

    I googled Don Lichterman and (at least for the first three pages), there was no entry under Volokh Conspiracy.

    Let’s see. . .who would want to see the VC fail the most?

  3. I wonder if society will eventually come to universally recognize some kind of “right to disappear” much like is in its infancy now in the EU and other jurisdictions. It would seem to me that a broad spectrum of people would support some kind of “expungement” after many years had passed. Either that or the ability to index and search online content, as the data level of it balloons over the next few years, it will naturally become almost impossible to find using current search engine algorithms.

    1. Jimmy the Dane: Can you elaborate, please, on how far you think this should go, especially for books that are searchable online, newspaper articles, blog posts, and the like?

      For instance, my initial post was discussing forgeries, and pointed to three real cases as examples. Presumably people who are interested in learning more about forgeries aimed at removing or deindexing online material might search for such a post, and find it useful when they find it. Would it be proper for the law to require that it be removed, redacted, or made unfindable? What about newspaper articles about more prominent criminal cases; would they too need to be scrubbed?

      1. The answer is I don’t know the extent to which any “right to disappear” might go, hence the rather open ended question. I generally don’t like the idea of information “going down the memory hole” in that it would be completely deleted, redacted, or scrubbed. But, nothing says that information has to be available at the push of a button too, online, and accessible through the world from any device that has internet access.

        I would posit that if society recognized any such right it would probably be restricted mostly to de-indexing, but just as our justice system will expunge criminal records, or place other generally publicly available records under seal, there might be also so mechanism for doing something similar for dated information.

        The manner and speed information can be generally accessed is new to humanity in general and any restrictions on such access, along with the question of how society will expect that to be shaped, is an open question in my opinion.

        1. I’d much rather add a record showing expungement. Anything else looks underhanded to the people who remember, and then you have to start voiding their blogs, and collecting historical physical reminders, and the whole thing is a terrible rabbit hole to begin exploring.

        2. That’s the same argument the EU uses. It baffles me. It is not access to information, it is the ease of access that you object to. I find that incomprehensible.

          Stop and consider that such restrictions, to be effective, will be similarly unprecedented in human history. We need to be very careful to not bring 1984 down on our own heads.

        3. If someone wants the bad stuff that their name is linked to to not show up on Google, they should do enough positive stuff to drown out the bad.

  4. Had a friend give me a call a few years ago. For a few years he maintained a blog on his local government and was quite critical of some expenses the administrative staff were incurring for “professional development” (trips to conferences in resort areas during the right times of the year). He got a certified letter from one person who he essentially accused of fleecing the local taxpayer. It had been about ten years since the incident(s) had occurred. The guy has moved out of state and was seeking employment. He had several final interviews but when a background check was run his conditional offers were pulled. When he demanded a reason he was told it was because of “suspected criminal activity revealed by online searches” (he was never investigated or charged with any criminal acts).

    The letter made a passionate appeal for the voluntary removal of content on the old blog as it was hindering his employment prospects. I told my friend it was up to him and unless the content was liable/slander he was most likely fine. The friend ended up removing the content because he felt the guy shouldn’t be punished 10 years later for something that was, at best, bad faith (non-criminal) use of taxpayer money.

    Wonder what others might think of voluntary requests made to individuals to remove content?

    1. Couple of obstacles:

      1. Any organization getting too many of these for a once-in-a-while part-time distraction for a single employee to handle is probably going to start ignoring them.

      2. Your friend’s actions, while of the best of intentions, relied on the letter sender to be honest. What if the letter sender got a job and bilked his new employer the same way?

      It seems to me that it would be better all round for the prospective employee to come clean during the interview, explain it was ten years ago, be honest up-front.

  5. It might be interesting to see if you can construct some sort of legal theory for a tort claim against the person trying to get your posts taken down that will get you into discovery and get you some subpoena power.

    Because I suspect it will be trivial to determine that the source of the takedown requests is exactly whom you might assume it to be.

    1. “It might be interesting to see if you can construct some sort of legal theory for a tort claim against the person trying to get your posts taken down”

      For someone actually trying to get it taken down (by contacting the webhost), it’s tortious interference with contract. But just trying to get Google to de-index it would not be.

      Ultimately, the best remedyis probably Streisand Effect.

      I suspect that the guilty party may not be the obvious suspect (directly). Somebody may be out there running a scam, claiming to get objectionable (to their customer) information taken off the web for the right $$$. The clumsiness might be intentional… “hey, we never said it was a court order you had to respect. It’s a court order, but it says right on it what it applies to.”

  6. Professor Volokh,

    I respectfully suggest that you misunderstand what the requestor is trying to do here.

    You seem to be under an impression that the requester has some sort of “theory” that “explains” a “reason” for the takedown.

    I suggest the request or has no such concepts in mind. He is simply trying to find a way to hack the Google takedown process by giving them a string of words or codes which if successful will result in the actions he wants being performed, and if unsuccessful won’t send him to jail. He is using words, not skeleton keys or computer codes, because he is trying to manipulate people rather than a lock or a computer. But this difference, so important to you, is of no concern to him. He is simply trying to find the formula that will result in manipulating the object – lock, computer, or people – into doing the thing he wants done.

    He is simply creating the appearance of a plausible request, not the actual existence of one. And he is attentive, this time, to avoiding jail if caught. The request, if you look, actually says that the order doesn’t apply to social media platforms. Perhaps you didn’t notice. He certainly hoped the Google people didn’t.

    Everything in a request like this depends on the recipient not paying very much attention. It depends on their NOT thinking and reasoning. The exhonorating details, which render the document as a whole an absurdity in your eyes, are simply to avoid jail if someone pays attention.

    1. In other words, this is a carefully thought-out document, something legalistic-looking at first impression but which totally falls apart -self-destructs, so it can’t be used to harm its sender – if it gets into the hands of someone who does know.

      You see a single document that doesn’t make sense. But it makes perfect sense.

      Seeing the rationality in what seems to you to be senseless gives you power and options, strategies that you wouldn’t have if you left it at things making no sense.

      I’ve talked a lot about our tendency to think of others as crazy because many of us have lost the ability to ask ourselves why th other person would say or do things the way they did. Here it’s useful.

      On the other hand, perhaps you also suspected similar motives, but are choosing to avoid the issue and limit your post to what you know for certain from the evidence, which is the post’s content doesn’t make legal sense.

      1. Not sure what your point is.

        Lichterman is attempting to game the system (sure, OK, whatever), and Prof. Volokh is calling him out on it.

        It’s a round-peg/square-hole situation.

  7. FWIW, these kinds of things tend to be very easy for us at Free Law Project (the non-profit that runs CourtListener; I’m the executive director).

    We get requests to redact or seal documents or cases. The vast majority of these are legit. It’s some kind of post-publication redaction where the parties in the case have gotten something sealed or redacted *after* it was published. In these cases we will just do whatever the court has done and seal or redact accordingly.

    In other cases, people will get their case sealed on appeal, and try to use that order for the lower court case or vice versa. In that case, we decline to do so.

    I can’t think of any time that we’ve gotten a forged removal request, but it wouldn’t get very far. With PACER content, we always check if it’s still available in PACER. If it is, we don’t seal it because obviously it’s not sealed. Easy-peasy.

    Where things get trickier is GDPR right to be forgotten requests that we’ve now gotten a couple of. One such request demanded that we remove a page from our site, and we responded with a very firm no (see our homepage for more info; can’t post link here). So far that’s holding up, but we’re not thrilled about the junction of EU and US law. Our website is available around the world. Must we follow all laws of all countries?

    Anyway, these situations are kind of business as usual around here (minus the forgery part), and we have a pretty robust system in place to deal with these things.

  8. I suggest that as many of us who have blogs, copy and paste your blog entries so that multiple copies of all of them exist. It will be incredibly hard for him to have them all deindexed.

    1. What AndrewLale said; Streisand Effect it…

  9. Any conspirators familiar with the workings of indexing? It has been my understanding that web pages are indexed according to Google (or another browser’s) algorithm, which if true would make manipulation except by Official Googledom difficult. Question whether that is inaccurate and whether those outside the algorithmic parameters could cause a site to vanish.

    Take down orders, whether judicial or through DMCA, are more familiar ground. Those ought to be obeyed, even if at times they are not.

    Any information which would lead me in the direction of greater knowledge would be greatly appreciated.

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