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.

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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.