The Volokh Conspiracy

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Phi Sigma Sigma sorority wins its secret handshake case, gets details of handshake removed from many (but not all) sites


Back in 2015, the sorority Phi Sigma Sigma sued over a comment that revealed its secret handshake. (No kidding.) You can see more on this here—it made Cosmo, USA Today and more.

Well, last fall, the sorority actually won its lawsuit in Washington state court—by default order, since the post was anonymous, and no one came forward to claim the post and defend the case. The legal theory was that the comment was a breach of contract (on the theory that the anonymous commenter had been a sorority member who had promised to keep the secret); a breach of a duty of confidentiality (basically duplicative of the breach of contract theory in this case, I think); a misuse of confidential information (likewise duplicative of the breach of contract theory in this instance); and an invasion of privacy (an unsound claim, since organizations don't have privacy rights: there's a Washington case on that). The court accepted the plaintiff's theory, which is unsurprising given that the defendant didn't show up.

And late last month, it submitted the order to Google, which apparently removed the comment from the Blogger site that had hosted it. (Google owns Blogger.) The cover letter reports that many other sites had also removed the secret handshake. But not all did; and indeed, while the sorority's theory works well against commenters who are thought to have gotten the information on promise of confidentiality, it wouldn't work as to third parties that had reposted the information (which some had done when commenting on the lawsuit).

For more on the controversy, see this TechDirt post (by Mike Masnick).