Libel

Hunter Biden Laptop Repairman Sues Twitter for Labeling the Documents "Hacked"

Twitter's labeling, John Paul Mac Isaac contends, implicitly accused him of being a hacker, and was therefore libel.

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From Mac Isaac v. Twitter, Inc., filed today in federal court (S.D. Fla.):

[25.] Defendant's false and negligent statements about Plaintiff include: …

[b.] Posting the reason for the [New York Post account being locked] as it being in violation of Defendant's "hacked material" rules ….

[26.] Defendant's Distribution of Hacked Materials Policy … defines a "hack" as "an intrusion or access of a computer, network, or electronic device that was unauthorized or exceeded authorized access.["]

[27.] The Hacked Materials Policy further defines "hacked materials" as "information obtained through a hack."

[28.] Defendant's actions and statements had the specific intent to communicate to the world that Plaintiff is a hacker.

[29.] According to Meriam-Webster, a "hacker" is "a person who illegally gains access to and sometimes tampers with information in a computer system." …

[31.] Plaintiff is not a hacker and the information obtained from the computer does not [constitute] hacked materials because Plaintiff lawfully gained access to the computer, first with the permission of its owner, BIDEN, and then, after BIDEN failed to retrieve the hard drive despite Plaintiff's requests, in accordance with the Mac Shop's abandoned property policy.

[32.] Plaintiff, as a direct result of Defendant's actions and statements, is now widely considered a hacker and, on the same day Defendant categorized the Plaintiff as a hacker, Plaintiff began to receive negative reviews of his business as well as threats to his person and property….

[36.] Defendant … has made false statements that the materials obtained by NY POST from GIULIANI, which originally came from the Plaintiff, constitutes hacked materials thereby categorizing the Plaintiff as a hacker.

Mac Isaac also alleges that the New York Post story "published a photo of Plaintiff's business thereby notifying the public where BIDEN had dropped off his laptop."

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  1. Rules for discussing Hackers:
    1) Hack or Hacker must be capitalized.
    2) Only people who identify as Hackers may call others Hackers
    3) Hack lives matter. We affirm the lives of Hack queer and trans folks, disabled folks, undocumented folks, folks with records, women, and all Hack lives along the gender spectrum
    4) Hack or Hacker may never be considered to be a pejorative term

    1. to people who know what they’re talking about, a “hacker” is someone who understands computer technology at an expert level.
      There is no possibility that anyone using the terminology correctly believes plaintiff to be in any way “a hacker”.

  2. None of that matters.
    He said bad things about a Biden, and deserves everything he gets.
    Narrative uber alles.

    1. First confirmed sighting in the wild of Biden Derangement Syndrome. [Trademark!!!]

      (Sadly, BDS has been used for years, for other things. So, gotta go with the full spelling. Or . . . is it all a true conspiracy, and we Jews are behind Biden’s landslide over Trump . . . ? Does my BDS connect to earlier uses of BDS??? [cue ominous music] )

      1. Once Biden gets >95% negative media coverage and conservatives whine about him at 1/10th the volume leftists whined about Trump then I might allow that there is some equivalence.

        1. Do you actually imagine anyone might care what you’d allow?

          1. Well, some type of DS is evident in the methinks thou dost protest too much department.

          2. English, learn it.

            1. The only thing worse that correcting someone by providing incorrect information is correcting a mistake that didn’t happen.

      2. No, BDS is something completely different.

        It’s when Biden says something so absurd, nuts, or crazy that people think Biden must be deranged….but then go “Oh, that’s just Joe being Joe”

      3. Pretty bizarre to call 45,000 votes out of nearly 160 million a “landslide”.

        1. Yeah, I thought it was weird when Trump did something similar in 2016 as well.

        2. ed
          I had thought about using ironic quotes around “landslide,” since it was idiotic when Trump called his 2016 victory a landslide. (Although, in terms of the electoral college, it was a decisive win. Balanced against losing the popular vote by millions.).

          My real point was that no one who supported Trump’s victory being described as a landslide (Losing the popular vote by millions, winning 3 states by well under 100,000, total of 306 electoral votes) could possibly make a good-faith objection to Biden (exact same electoral votes, wining 3 states by even fewer votes, but winning popular vote by millions and millions) using the same terms to describe the victory.

          1. The only votes that count are the ones in the EC, so if 306 was a landslide in 2016 then it is in 2020, as well. There’s a reason that Republicans keep not talking about winning the popular vote, and that reason is that they rarely win the popular vote. Still, it’s enough of a mandate to justify cutting taxes on wealthy people.

    2. Has anyone said this?
      Or are you of the belief that no one can think this is a silly case without being a knee-jerk Bidenist?

  3. Most defamation cases are easy losers but this one might have a chance. Not spelled out in the article above but critical to the case, I think, is that hacking is explicitly a crime. Twitter has, therefore, accused him of being a criminal. The questions, therefore, will be 1) is that accusation true and 2) did the company know or should have known that it was false?

    1. Incidentally, I generally have a great deal of sympathy for those accused of defamation but Twitter gets none from me. That’s a dumb tag and they should never have implemented it. It’s a logical fallacy, the inverse of the appeal to authority. The Pentagon Papers were no less relevant or true for being distributed through questionable means.

      1. The Pentagon Papers were stolen, while he was in legal ownership of this computer.

        Now does ownership of the machine include ownership of the data on it — IANAL, but it’s a stronger case than Daniel Ellsberg had to claim a right to release the Rand study…

        1. That’s my point, Dr Ed. Applying Twitter’s rules to prior cases results in absurd results. They would, in my example, have required tagging, and by implication, discredited the release of the Pentagon Papers yet that release is now near-universally recognized as a social good. And as you point out, that case was even more clearly criminal that the current example.

          Attacking (or supporting) an idea based on its source is a logical fallacy. The very idea of Twitter’s “hacked materials” tag is stupid.

          1. Forget the Pentagon Papers. What about Trump’s tax returns? Did Twitter suppress all mention of those?! Of course it didn’t. And yet there can be no doubt that whoever made them public obtained them illegally.

      2. I assume all the hacked and presumptively hacked stuff of Assange and the others would be blocked nowadays, even though it had nothing to do with Trum…ha…haha…hahahahaha.

        I’m sorry, I can’t write that with a straight face.

        Facebook and twitter are threatened with billions in stock losses by section 230 changes, unless they censor harrassment, immediately used to demand silencing of their political opponentz’ “harrassing tweets”.

        Which was done.

        Before Trump goes to jail, can we send every Democrat in the debates to jail, including both the electees, and dozens from congress of both parties, for such grotesque violations of the First Amendment?

        1. “Facebook and twitter are threatened with billions in stock losses by section 230 changes, unless they censor harrassment”

          ahem
          the person presently pushing for section 230 changes is exactly the one whining about censoring.

          Of course, if censoring is what you want, repealing section 230 is the fastest way to ensure it.

    2. The issue may be with Mr. Mac Isaac’s choice of dictionary. Google, for examples, cites the OED as defining “hacking” as gaining “unauthorized access to data,” which drops the question of legality and substitutes data for computer. Dictionary.com also says that illegality isn’t required.

      This is the more expansive definition I’m used to… in which case the term would seem much more applicable.

      1. He was authorized by the disk’s lawful owner, i.e. himself.

        1. The repair agreement does not purport to transfer title to the store in this situation.

          1. No, but the abandoned equipment policy likely does.

            Say you drop your laptop off at a store to be repaired. They repair it, spending time and money. But you then forget about it, and never pay for the repairs.

            Are they going to hold onto it forever? No. At some point, it’s considered “abandoned property”, and the title does transfer to the store, as according to the policy and repair agreement. Then the store can try to make back the money that it put into the repairs.

            1. You’ve made a couple of unstated assumptions.
              1) ownership of the device implies ownership of the data contained on the device.
              17 USC 1201 et seq. argue against this assumption.

              2) the previous owner of the device had authorization to access the data on the device.
              (this assumption is necessary for your hypothetical “abandoned property” policy to transfer a right to access that data to the shop and its proprietor.)

          2. Yes, it did. It specified that anything not picked up for 90 days would become the store’s property.

            1. What is your source for that? The copy of the agreement attached to the complaint says that such property would be “treated as abandoned” and that the store would not be liable for “any damage or loss of property”, not that the store would take title to it/

              1. Guess what, in general, abandoned property can legally be claimed by anyone. Once it’s “treated as abandoned” the store can claimed title to it.

                1. Not Milhouse’s thesis.

                  Also not established by the facts, as of yet.

                2. “Guess what, in general, abandoned property can legally be claimed by anyone. Once it’s “treated as abandoned” the store can claimed title to it.”

                  Not true. if something is stolen, you can’t grant yourself a title to it by awarding yourself power to “treat as abandoned”.

                  In law school, you get to spend a week of your first year learning the rules in property law. “finder’s keepers” is only one of the rules, and it doesn’t cover the general case. It’s a complicated subject, which is why it takes a week to work through.

    3. Hacking is a federal crime, in violation of these laws.

      The Computer Fraud and Abuse Act (CFAA);
      The Stored Communications Act (SCA);
      The Electronic Communications Privacy Act (ECPA); and
      The Defend Trade Secrets Act (DTSA).

      1. True – Hacking is a federal crime –

        However, the computer store owned the laptop at the time of the “alleged Hack”

        By statutory definition, you cant hack a computer you own.

        1. “By statutory definition, you cant hack a computer you own. ”

          You might want to take a look-see at the Digital Millenium Copyright Act. It doesn’t work the way you imagine it does.

          See, e.g. 17 USC 1201(a)(1)(A) which expressly forbids circumventing technological protections for copyrighted works. Many of the files on a computer system are protected by copyright, and modern operating systems provide technological protections against accessing files.

          Next, consult the provision that exempts devices you own, which will be difficult because there isn’t one.

    4. Not spelled out in the article above but critical to the case, I think, is that hacking is explicitly a crime.

      That doesn’t seem correct to me. There is certainly some conduct that could be described has “hacking” that would constitute a crime, but that’s not the name of an actual offense. And even if it were, just doesn’t necessarily mean that the use of the word is automatically an accusation of committing a crime, just as defendants are not per se liable for using the words of actual crimes, like “extortion” or “robbery”.

      More to the point, Twitter didn’t accuse the plaintiff of hacking, or call him a hacker—it said that the New York Post story contained “hacked material”.

      1. And who is supposed to have “hacked” it, if not him?
        (Using the term “hack” in a pejorative sense under protest, because the whole case is about Twitter having used it in that same sense.)

      2. I don’t think that’s right, Noscitur. As I read the case above, Twitter locked NY Post’s account. In doing so, they gave the reason as “distribution of hacked materials” and connected the reason to the material in question. Twitter did not accuse the NY Post of hacking (because they couldn’t – based on the information available, NY Post never had access to the computer) but they did accuse the NY Post’s source of hacking. Since Mac Isaac was clearly identified as that source, Twitter was effectively accusing Mac Isaac of hacking.

        It’s also worth noting that while common usage of “hacking” sometimes includes non-criminal activity, Twitter’s published definition very closely mirrors the criminal elements defined in the CFAA. Do you have any reason to believe they would have used an informal definition of hacking rather than the one published in their own policies when making this determination?

        1. If Mac Isaac was the source of hacked material, that doesn’t mean that Mac Isaac did the hacking. The files could have been obtained by hacking and placed on the laptop before Mac Isaac ever saw it.

          1. Yes, I suppose you could rationalize it, IF they had suggested anything of the sort. Which they didn’t.

          2. Huh? Hunter Biden’s email was not on his laptop, but was “hacked” from some other place, and secretly planted on his laptop, while it was still in his possession?! Are you serious?!

            1. If your assertion that the laptop was in Hunter Biden’s possession is based on the fact that the laptop contained what appear to be Hunter Biden’s emails, your argument is circular. You are in essence assuming that the emails were placed on the the laptop by Hunter Biden and using that assumption to rule out the possibility that they were placed there by someone else.

              If your assertion is based on the claim that an unidentified individual told the repair shop owner that the laptop belonged to Hunter Biden, I have to turn your question around and ask, are you serious? The internet is filled with assertions made by unidentified individuals. Do you believe everything you read on the internet?

            2. “Huh? Hunter Biden’s email was not on his laptop, but was “hacked” from some other place, and secretly planted on his laptop, while it was still in his possession?!”

              You’re assuming that this device was ever in Hunter Biden’s possession, which is a fact not in evidence.

    5. One question is whether mac Issac became a public figure (quasi public figure) when he disclosed the data on the laptop. The defamation occurred after the the point in time he became a public figure (24-48 hours later) Granted a public figure for only a few days.

      compare and contrast with Nick Sandmann who became quasi public figure as a result of the defamation where as Mac Issac became quasi public figure due to the disclosure of the contents of the laptop.

      1. That’s a reasonable question. I don’t think Mac Isaac became a public figure because of the way he disclosed the information. According to the complaint, it was provided to the FBI and to Guiliani’s attorney. Mac Isaac took none of the steps usually associated with intentionally putting oneself in the public eye. Nor does he meet any of the usual involuntary reasons to be considered a public figure (crime boss, etc).

        I’d like to see a factual determination on that point but my initial take is that Twitter would have a very hard time arguing that he counted as a public figure. At least, based on what we know so far.

        1. On subsequent review of the facts & timeline, it would seem your take on the facts is correct, Therefore I would conclude he did not become a public figure prior to the defamation. (nor can the defamation of a private figure create a public figure).

          FWIW, the purpose of my question was to address whether the public figure was an issue. I concur it is not in this case.

        2. ” Mac Isaac took none of the steps usually associated with intentionally putting oneself in the public eye.”

          Taking his story at face value, he came forward as a witness to a crime, which is indeed one way to become a public figure.

    6. I’m not sure Twitter is at risk here.

      Multiple media outlets (including Fox News) turned down the story because they thought it was fishy, even at the NY Post multiple writers refused to have their names attached to it because they didn’t trust it.

      Therefore, I think Twitter was well justified in believing there were serious issues with the story.

      Now, as to the specific accusation of “hacking”. In the context provided I could see multiple uses of the term:

      1) It’s a “weird” story. Hunter Biden dropping off and abandoning his laptop that contained a bunch of damning information, and dropping it off at the repair-shop of a Trump-loving blind repairman no less.

      There’s a lot of reasonable expectation that the repair shop owner was a patsy, that the laptop was loaded up with incriminating hacked info by Russian or someone supporting Trump and given to a repairman who could be trusted to leak it.

      That’s a reasonable and legal definition of “hacked materials”.

      2) Lets assume the shop owners story was fully accurate. Hunter Biden gave him a laptop with the intent of retrieving information, instead that information was given to Trump’s lawyer. That also smells like the public understanding of “hacking” to me.

      Yeah, there’s the small print in the contract about the shop owner gaining ownership of the laptop after 90 days, but that wouldn’t grant him ownership of the IP, and I suspect a court would find serious limitations with what he could do with info on the laptops.

      And frankly, digging around the customer’s files like that, well that’s not something an ethical IT person would do. The fact he closed up might be related to the fact that he turned over the hard drive of a customer to a Lawyer who was on a mission to defame that customer.

      I sure wouldn’t give him my computer.

      1. Well there is the kiddie porn that was also on the laptop.

        1. Ed, please stop lying. I know it’s like breathing to you, but just for a moment, stop. There was no child pornography on the laptop.

      2. Having issues with the story is not the issue at hand, however. It is specifically the aim that the info was hacked material and the shop owners assertion that this was an intentionally implied reference to him as a hacker.

        Is it a slam dunk case? No, but those who seek to defend Twitter seem to keep focusing on an irrelevant issue… which indicates the weakness of their actual defense. Their decision to publish or not is not at all relevant to the controversy. It is the implied behavior of the shopkeeper that is included in their statement about not publishing. Had they said “We are publishing this hacked information” the shop keep’s claim would still be the exact same.

        1. Twitter also took down the label a day later.

          And the guy is suing for $500 million.

          Frankly, this suit is starting to look frivolous to me. I think it’s more likely a publicity stunt to try and get on the right wing speaking tour.

        2. “Is it a slam dunk case? No”

          It’s pretty close. Truth is an absolute defense to a defamation case.

          Now, if Hunter Biden were to appear, and testify under oath “this was my laptop, and it contains my data, and I authorized disclosure of all its contents” then things would be different.

    7. critical to the case, I think, is that hacking is explicitly a crime.

      Hacking is a media term, not a crime. There are certainly crimes that could be called hacking — ask Prof. Kerr! — but that does not mean that everything that could be called hacking is a crime.

      Twitter has, therefore, accused him of being a criminal.

      Well, no. Twitter didn’t say that this guy did any hacking. At most Twitter said that the material was hacked by someone.

    8. “hacking is explicitly a crime.”

      So not even close, yet so clueless.

      hacking is not a crime.
      Buy the t-shirt
      https://www.redbubble.com/i/t-shirt/HACKING-IS-NOT-A-CRIME-by-dknelson/12660717.NL9AC

  4. Question: Did Twitter itself use the term “Hacker” or did Twitter users use the term? Makes a big difference. Too lazy to read the actual complaint.

    If the latter, sec 230 makes nuisance lawsuits subject to summary judgement. And the point of the suit is to give whiners more ammunition to whine about sec 230 after it gets tossed.

    1. It’s the former.

      1. Citation needed.

        1. The thing you were too lazy to read.

          1. I did read it. No actual quotes from Twitter. Perhaps you could give an example?

            1. “I did read it. No actual quotes from Twitter.”

              Read it again.

    2. Ok, I’ve now read the complaint.

      Allegedly, Twitter took down a post made by the NY Post about the Hunter Biden laptop story because they thought it might violate their “hacked materials” policy. That’s the basis of the complaint.

      Twitter didn’t call him a “hacker” by any stretch of the imagination. It is possible that he accessed and shared the material on the hard drive illegally, or maybe not. Twitter being cautious about this does not raise it to the level of defamation, and sec 230 should make short work of this suit.

      1. Allegedly, Twitter took down a post made by the NY Post about the Hunter Biden laptop story because they thought it might violate their “hacked materials” policy.

        “Allegedly”? Apparently there are a whole lot of things you’re too lazy to read — this was never even vaguely in dispute. See, e.g., this account right from the horse’s mouth.

        1. Thanks. That’s exactly what I was asking for – what, exactly, Twitter had to say. The relevant quote is “As noted this morning, we also currently view materials included in the articles as violations of our Hacked Materials Policy.”

          That’s the basis for the defamation suit. Seems to be quite weak tea, although others are right to correct me about the relevance of sec 230 here.

      2. Section 230 doesn’t apply really. Because Twitter itself was making the claim, rather than one of Twitter’s posters.

        1. This. Section 230 only protects them from stuff written by *other people*, not themselves.

        2. Correct. 230 has nothing to do with this.

        3. What sec 230 says:

          No provider or user of an interactive computer service shall be held liable on account of—
          (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected…

          The suit is attempting to hold twitter liable for restricting access to material that is “otherwise objectionable”. Seems relevant to me. I’ll be very surprised if Twitter’s attorneys don’t cite this as part of their defense.

          1. The suit is attempting to hold twitter liable for the announcement they put out about why they were restricting access to it, not the fact that they restricted access to it. It’s a loser for other reasons, but not for the one you describe.

  5. A question for those actually expert in defamation law: If the case proceeds, would the plaintiff have to provide evidence supporting the provenance of the laptop, or is it sufficient for the plaintiff to show that Twitter had no justification for labeling the information as “hacked”?

    1. I’m not a lawyer, and certainly not an expert.

      But the apt analogy would be if you posted a picture of a child in the bathtub on some social media site and they removed it on the basis that it might violate their child pornography policy, you don’t get to sue them for calling you a child pornographer. Ok, you can sue, but you won’t win.

      Same thing here. Twitter has a policy about “hacked material”. They don’t have to be right about it to remove posts, just some perhaps plausible possibility is enough.

      The plaintiff proving that the material was accessed legally is not enough to prove Twitter defamed the plaintiff, so that is probably irrelevant to the disposition of the case. Proving Twitter had “no justification” would be difficult and probably insufficient given the broad language of sec 230.

      Expect summary judgement. There’s no case here. Like so many others recently, it’s a publicity stunt, not a serious legal question.

      1. You used the word “might” there. That’s legal room.

        Twitter didn’t appear to do that. They called it “Hacked”. Not “might be hacked materials”. And Twitter fairly quickly changed their policy on hacked materials…but after this Tweet and hacking labelling.

        1. What Twitter actually said: “As noted this morning, we also currently view materials included in the articles as violations of our Hacked Materials Policy.”

          My understanding is using a phrase like “we view” is also legal room.

          1. We view is akin to saying “We say they are.” That is a statement of fact (or at least an attempt at one, it could be erroneous but the phrasing implies that the truthful nature does not originate merely put of Twitter’s believing it).

            1. “We view” is objectively stating an opinion, and opinions are not defamation unless they meet some very specific conditions.

              This case is a Trump-level loser.

      2. ah Clem

        Your comment suggests you don’t know anything at all about defamation, and even less about Section 230.

        John R. Ellis

        The answer to your question is that the plaintiff must show Twitter was at least negligent or worse, in making a damaging false statement. My guess is that evidence supporting the provenance of the laptop would be useful to establish the “falsity” element, but might not be necessary to make the prima facie case of falsity. If Twitter pursues truth as a defense by providing evidence that their statement was true, then you will have more of a focus on the issue of whether the statement was true or false.

      3. But, at least in the child porn example there is the picture as evidence. I’ve never seen any evidence of hacking in this case, just a conspiracy theory that there was hacking supported by…??? Wild speculation?

        1. Having possession of something that someone else would have wanted to conceal supports an inference of unauthorized access. This isn’t a legally-unrebuttable presumption, but neither is it unreasonable, absent a showing of lawful access.

  6. Repair techs last I heard are required by law to turn in people who have child porn on their machines. Are these guys evil hackers? Are the jurisdictions that passed these laws guilty of mandating people become evil hackers?

    1. No, and no,

      But no social media site is required to serve as a soapbox for any and everything that anybody wants to post.

      So, suppose for the sake of the argument, that a tech found child porn on a computer. They report it to the authorities, fine. They post it on Twitter, and Twitter says “wait a sec, is this OK? Let’s be cautious and delete it”. And Twitter gets sued for this?

      Are your fucking kidding me?

      1. They don’t have the right — absent some proprietorial gag order — to say they were “good citizens” who turned in a perp, and for what?

        That’s BS — it’s like saying that if I dial 911 when I see a bunch of hooded klansmen chasing a Black guy, I can’t brag about being the person who made the phone call that saved his life?!?

        No, “good citizens” have the right to brag about being “good citizens.”

      2. That’s pretty much … nothing at all like the situation in this case.

        Twitter had every right to delete your hypothetical post (or the NY Post’s post) for any reason or none. But they went beyond mere deletion and made comments about why. And in those comments, they made explicit statements that they can be held accountable for.

        So back to your example:
        – deleting a picture of your infant in the bathtub because someone might consider it kiddy porn? Completely within your rights.
        – publicly accusing you of being a child pornographer because of that picture? Probably defamation.

        1. “publicly accusing you of being a child pornographer because of that picture? Probably defamation.”

          Except not “probably defamation” because opinion isn’t defamation.

      3. the claim that there is child pornography on the device creates a problem or two for the shop owner. Since the shop is claiming ownership of the device, they now own the hypothetical child porn, which is a criminal offense.
        Second, by the shop owner’s testimony, the data was given to law enforcement, which creates a potential safe harbor on the possession charge for the shop owner, but the data was backed up and also given to Rudy, which creates a distribution charge (and a potential possession charge against Rudy).

        Assuming there WAS child porn on the device.

    2. I would think that a big part of it is about authorization when the law requires something that means they are per se authorized. Not and apples to apples comparison to this case.

      1. A big problem for the plaintiff is that they aren’t showing any actual defamation.

  7. Part of the complaint was the issue of a pix of the store where Biden took the laptop to be fixed resulting in the complaint being at least pseudo doxed. Seems to be solid evidence that there were phony reviews of the business and enough threats the owner shut it down. Also solid evidence that the owner was getting death threads from peeps who self identified as Biden supporters.

    As an aside the term hacker use to be a compliment. Back in the day the PDPs at MIT had very limited storage and memory and programmers would review code and “hack” out unnecessary stuff and were described as hackers.

  8. I’d like to hear Orin’s thoughts on this from the definitional side. “Exceeds authorized access” has been a muddy phrase for quite a while with no clear delineation (I believe there is a SCOTUS case currently pending that at least may touch on it). If someone is given limited authority to copy for a specific purpose does it exceed if they use it for another? Does it matter that what they accessed was within authorization but then used it in a way that exceeds a stated limited purpose on which they’ve been authorized. Do we need to get into contract and property law to determine the respective property interests Biden and the store owner have?

    And from a defamation standpoint does the very nature of how muddled the phrase is essentially answer the “malice” prong in that since it could be argued to exceed authorized access it wasn’t known to be a false statement or with reckless disregard for the truth (I think we can all agree it’s a matter of public concern)? I think the answer is probably yes, but am open to argument. Especially since even though their language tracks the language in the CFAA it is still it’s own policy and can give it its own definition even strengthening their argument.

    1. The “exceeding authorized access” has been tortured to include violating terms of service, but I believe it was originally intended to apply to violating technical measures to restrict access. It’s still murkey what it actually means.

      1. “I believe it was originally intended to apply to violating technical measures to restrict access.”

        Originally, no.

        Start with analogy. “unauthorized access” is a component to a number of property crimes. Consider an ordinary motor vehicle. One of the ways to show that your access was unauthorized is to show that the doors were locked and you didn’t have a key to fit the lock. This is not entirely dispositive since sometimes an authorized person doesn’t have possession of a key, like when the AAA person is dispatched to help you get into your car after you’ve locked your keys inside it. That’s not an unauthorized access because you authorized it when you asked them to open the door for you. There are also times when you indirectly authorize access, and times when something else authorizes it. Say, you owe money on your car and haven’t made payment, so the finance company authorizes their agent to repossess the car. Next, there’s the case where you’ve parked your car in someone else’s parking space and that someone has ordered a tow. The tow operator arrives and starts to tow, then decides that to avoid damage to the vehicle, the parking brake needs to be released. So they open the car and release the brakes, then tow it.

    2. The purpose of the abandoned property clause is presumably to ensure that the shop owner doesn’t have to store repaired but unclaimed equipment indefinitely. It authorizes the shop to dispose of the laptop after 90 days, which solves the shop’s problem. I don’t think most non-lawyers would read the policy and think they were authorizing the shop to search the laptop for embarrassing personal information and provide that information to the national media. It seems safe to assume that the shop was either explicitly or implicitly authorized to access the contents of the laptop as necessary to performing the contracted work, but that that authorization expired when the work was completed.

      As you note, the “exceeds authorized access” language in Twitter’s policy doesn’t necessarily have exactly the same meaning as the corresponding language in the CFAA. It seems to me that if Twitter had asserted that Mac Isaac had exceeded his authorized access, that would be an opinion rather than a statement of fact.

      (All Twitter actually said was that the Post story violated it’s policy on hacked materials, and the complaint doesn’t even try to explain why someone reading this would conclude that the alleged hacking was done by Mac Isaac rather than whoever gave Mac Isaac the laptop.)

      1. Whatever they were authorized to do before the 90 days elapsed, after the 90s days the store became the legal owner of the laptop and everything on it. Which gives them the right, at that point, to go through all the files on it and dispose of them as they see fit, because that’s what ownership means.

        1. According to the complaint the repair agreement said after 90 days property would be “treated as abandoned”, not that title would transfer. Absent an agreement otherwise, in Delaware passing title to abandoned personal property requires a court order.

          1. If you can’t take title to property abandoned within your premises, what does “treat as abandoned” do? Create a bailment? Is Hunter going to show up at the 11th hour, claim the device was his all along, and sue the store owner for not properly safeguarding it?

        2. ” Which gives them the right, at that point, to go through all the files on it and dispose of them as they see fit, because that’s what ownership means.”

          Except that’s NOT what ownership means. You have to own the intellectual property to make copies to transfer them to third parties who are not law-enforcement. If you lose your phone, and it has your collection of nude selfies your significant other has transmitted to you? Somebody finding your phone does not have legal authority to publish all those photos, even if they have a valid claim of owning the device, because the copyrights remain with the creator(s) of the original works. You also might run afoul of privacy statutes, since some states criminalize publishing nude photos of people who have not consented to such publication.

      2. Does a mechanic’s abandoned property policy give the repair shop the right to look in the glove box before they sell the car? Of course, it does. Ownership is ownership. And can the mechanic turn the drugs he finds in the glove box over to the police? Or to anyone else? Again, of course.

        Now, could the mechanic take your registration from the glove box and use the information on it to commit identity theft? No. But only because that is a crime separate from the ownership of the information.

        1. “can the mechanic turn the drugs he finds in the glove box over to the police? Or to anyone else?”

          the “or anyone else” isn’t helping you. You can’t go out and sell drugs you found in a car abandoned on your property, because selling illegal drugs is a crime. simply possession them is also a crime. You can alert police to their presence to effectively end your possession, but they didn’t become legally yours because they aren’t legal for anyone.

          And your analogy is poor because intellectual property works differently than real property, anyway.
          If you become the lawful owner of a photograph, this does not mean you can do anything you want with it, because photographs are subject to copyright and may invoke privacy laws, as well.

      3. “The purpose of the abandoned property clause is presumably to ensure that the shop owner doesn’t have to store repaired but unclaimed equipment indefinitely. ”

        The purpose is probably also to allow the owner to re-sell the equipment to recoup the losses from the unpaid for repair bill. This requires accessing the memory of the devices to, at the very least, perform a factory reset. And once you are at that point there is no real distinction between that and any other access such as searching for bitcoin keys (for the $$$), illegal materials (to report to authorities), etc.

        1. The distinction is that resetting the device (and erasing any data on the device) is part of selling the equipment. Disclosing the data on the device to third parties, on the other hand, is not part of selling the device.

        2. “This requires accessing the memory of the devices to, at the very least, perform a factory reset.”

          You don’t need to snoop the device to reset it to factory defaults. And being able to snoop the device doesn’t give you a property interest in the data you recover.

      4. “As you note, the “exceeds authorized access” language in Twitter’s policy doesn’t necessarily have exactly the same meaning as the corresponding language in the CFAA.”

        CFAA only applies to “covered computers”, of which there are none in this story, so CFAA is entirely irrelevant.

  9. This….could work.

    A lot of this is going to depend on the abandoned property policy of John Paul Mac Isaac’s shop.

    At this point it seems pretty clear Hunter brought in the laptop to get repaired. And then forgot about it. (At least he hasn’t denied it, despite being given repeated opportunities to). Hunter never paid for the repairs that were done and never picked up the laptop. This was all back in early 2019.

    At that point, in order to recover the funds spent repairing the laptop, the abandoned property policy kicks in. Presumably Hunter signed “something” when he handed over the laptop. And that would have a rider for the abandoned property policy, which would give the shop the right own the equipment and to go through the data on the equipment. At that point, it’s actually authorized access….it’s the shop’s equipment and laptop.

    So, calling it a “hack” is libel. And the resulting negative reviews are evidence of damages….

    1. I wonder if there is general law that covers abandoned property.

      1. No.

        Many folks are shocked to learn salvage laws are quite different depending on jurisdiction. Florida is what is called a title state. If you find an abandon boat you can’t claim it. The Cliff’s Notes version is you first report it to the LEOs who you have to pay to do an investigation and attempt to find the owner (can cost $US500+ and take six months+); next if no one claims it you have to get all the paper work and apply for a title from the DMV which also costs money. Also have to pay taxes unless you get out of Dodge in a hurry, but then you are open to the tax laws of the jurisdiction you move to. In other jurisdictions you simply can claim it with little or no effort; and there are what I call middle of the road level effort required in some places.

        Still not sure how there could be any restrictions on the use of a computer that was abandoned. Kinda like the LEOs can go through you trash can and use what ever you throw out.

        1. I wasn’t clear, a state law would suffice to set a legal framework, even if it was different than other states. I was also wondering whether a small print clause on the back of a form really has much legal force.

          For example I know many states have “Inkeeper Laws” that allow an “Inkeeper” to hold a guests possessions for payment and eventually dispose of them.

        2. “Still not sure how there could be any restrictions on the use of a computer that was abandoned.”

          Depends on what information is being accessed and who had authority to authorize access to it. Copyrighted material is protected by copyright no matter how and where it is stored, for example.

          If the device was a MacIntosh, then it has a copy of the MacOS on it. If the device is abandoned, this doesn’t give whoever possesses it a right to duplicate and sell copies of MacOS. If the person who owned a device was a private investigator who investigates marital infidelity cases, and there’s photographs proving infidelity of clients’ spouses, you still might run into revenge-porn liability for publishing the photos, even if they were lawfully made. If the device had documents describing trade secrets, then you could have liability for disclosing trade secrets if you publish the documents to the public.
          It is not the case that anyone who has possession of a device is authorized to do whatever they want with data they recover from the device.

    2. “At this point it seems pretty clear Hunter brought in the laptop to get repaired. And then forgot about it.”

      At least, that’s the wishful-thinking interpretation.

      “Presumably Hunter signed ‘something’ when he handed over the laptop.”

      If, and it’s a big if, it was Hunter who brought in the laptop, and if Hunter had authorization to allow access to everything on it, then there’s a possibility that he signed off on authorizing anyone else to access. that’s a lot of unsupported assumptions that have to line up.

      “And the resulting negative reviews are evidence of damages…

      Or they’re reflective of a poorly-run shop. Smart people aren’t going to want to patronize a computer shop that snoops its customers’ devices.

  10. A controversial back story that it was indeed Biden who dropped off the computer is doing a lot of tacit work among folks who say it’s a good defamation claim. Absent that assumption, what posture is the publisher of the story in? Seems like it is in the position of not rushing to conclude what it doesn’t know first-hand—which is anything concrete about where the data came from, or even, if I remember correctly, whether the data alleged exists at all. In short, admirable caution from a responsible publisher.

    Seems like the folks who are pushing defamation want somehow for the legal system to put to rest all the unresolved controversy and hazy sourcing allegations which cling to what remains a controversial political attack.

    More generally, this kind of dilemma is only possible because Section 230 does not hold online publishers responsible for defamation along with their contributors. Regardless of this case, that is a mistake which congress ought to correct.

    1. “In short, admirable caution from a responsible publisher.”

      Is Twitter a publisher?

      1. By my lights, yes. And tweets come from contributors.

        Some folks think that’s wrong, or controversial. They may insist that Section 230, or other stuff, defined so-called platforms as not-publishers. I think that’s Lincoln’s 5-legged dog. You can say it, but it doesn’t make it true. Problems arise when entities which do substantially the same thing are divided by law into two categories, and privileged differently.

        1. This isn’t really a Lincoln’s 5 legged dog case. Legally, platforms are non-publishers only in regards to user generated content. Twitter’s statements about hacking in this case were not user generated content, Section 230 doesn’t apply.

          1. ” Legally, platforms are non-publishers only in regards to user generated content.”

            Platforms are non-publishers in regard to anything they don’t publish.

        2. On line forums like Facebook and Twitter aren’t publishers in the traditional sense. A newspaper may publish letters to the editor written by a reader but they select the letters to publish and by that action bear some responsibility for the contents. They also often edit the letters for space and other things.

          Twitter on the other hand seldom intervenes in any posting the liability if any belongs to the author. It would require enormous resources to review and fact check every single post for potential defamation. In fact if online forums began to editorialize their members postings in a partisan way the potential to deepen divisions within. We can already see that happening as Mega Media companies take on points of view and draw certain people who agree with them. The same thing seems likely to happen it Twitter or Facebook were to do the same. We already have the phenomenon of Parler.

          1. “On line forums like Facebook and Twitter aren’t publishers in the traditional sense.”

            Depends on your tradition. True, publishing on electrons is different from publishing on dead trees. But on the other hand, publishing isn’t different from publishing.

            “We can already see that happening as Mega Media companies take on points of view and draw certain people who agree with them.”

            You make this sound like a recent innovation. A century ago, every major American city had multiple newspapers, each targeting a different population, and nobody had a Facebook account.

      2. “Is Twitter a publisher?”

        Absolutely. Under what kind of argument would you make that they are not?

    2. The sourcing is actually irrelevant. If the ‘data’ isn’t from Biden, or doesn’t even exist, then it still isn’t hacked. Twitter’s comments on why they took the actions they did were specific that it was hacked materials – not just dubious that the sourcing was accurate. In any of the aforementioned scenarios, that’s still defaming the shop owner.

      1. One theory has it that the data was loaded up with hacked (and possibly fabricated) and given to the repair shop by someone pretending to be Biden.

      2. Squirrelloid, I don’t see it that way. I see it as an opinion, not a factual assertion, about the data, not about the shop owner—who could have been entirely unaware of the ultimate source of the data, whether hacked or not.

        Of course, as an opinion, it is publishable without risk of liability for defamation. That the opinion concerned the validity of content touching on the election might even add a little extra to its protected status.

        1. Whether or not its an opinion is a matter of fact to be decided by a jury. I really don’t have a horse in that race, and don’t care to try to find an archived version of twitter’s comments as they originally appeared to try to assess it (the verbiage initially used could be dispositive). But that’s not a reason to dismiss the suit before a jury can hear it – there’s plausible injury and a statement which is arguably made as one of fact rather than opinion. Whether or not defamation has happened will solely depend on a jury’s fact finding here.

          1. “Whether or not its an opinion is a matter of fact to be decided by a jury.”

            Unless it’s a matter of law to be decided by a duly-appointed judge in a state with jurisdiction.

      3. ” If the ‘data’ isn’t from Biden, or doesn’t even exist, then it still isn’t hacked.”

        You left out a few steps of your logical chain here, and jumped straight to your conclusion.

    3. “A controversial back story that it was indeed Biden who dropped off the computer ”

      I’m not really fond of this tautological definition of “controversial”. If somebody controverts it, it’s controversial, and never mind that there’s no objective basis for the dispute.

      There’s not any actual question that Hunter Biden dropped off the laptop. It was conceded almost instantly by Hunter’s lawyer. Being a drug addled crack head, he’d just forgotten where he dropped it off. Among other related errors of judgement.

      1. There’s not any actual question that Hunter Biden dropped off the laptop. It was conceded almost instantly by Hunter’s lawyer.

        Cite?

      2. Do you have a cite?

        1. Are you trying to make this claim controversial?

      3. “There’s not any actual question that Hunter Biden dropped off the laptop.”

        Because you say so?

    4. ” this kind of dilemma is only possible because Section 230 does not hold online publishers responsible for defamation along with their contributors. Regardless of this case, that is a mistake which congress ought to correct.”

      That’s not a mistake, and doesn’t need any correction. What IS mistaken, and in need of correction, is your “understanding” of what Section 230 does and how it works.

  11. How long before lathered clingers start foaming over the Lifehacker site, birther- and Pizzagate-style?

    1. Not before you can make an issue of a non-issue, apparently.

  12. Let’s review a few important parts of this.

    1. Twitter itself (not a commenter) noted the material as hacked.
    1a. This means section 230 doesn’t apply. Twitter itself is making a statement, not one of its commentors
    1b. Twitter’s “hacked material” policy clearly defines hacked as “illegal” or “unauthorized access”. They don’t leave any ambiguity in their policy. No “might be” “Is likely to be” or “may be” hacked. But “Is hacked”.
    1c. None of this are statements opinion. They are statements of fact.

    2. The computer in question was dropped off by Hunter Biden in 2019 and abandoned.
    2a. Now a lot relies on the abandoned property policy. However, it is likely worded as something like “property left more than 90 days without payment will become property of the store”.
    2b. At this point, any access to the computer and its data would be authorized by the owner…the store.
    2c. As a result, any claims the access was “unauthorized or illegal” would be lies.

    3. Damages are pretty clear in this case, based on the negative reviews and store closing.

    4. Now where Twitter “may” have some leeway is that they called the material hacked. They didn’t directly call the owner a “hacker”.
    4a. This may or may not hold up. For example, if one was describe work that was done (by a store) or firm as “illegal” and that could be directly traced to the store, then it would likely still be classified as libel, even if you’re just calling the “work” a name. Or if one was to call the parts an auto shop used as “defective and failing safety standards” and they weren’t…again. Even though the PARTS were called defective, it traces directly to the store.

    5. The other way Twitter may go is try to claim a “good faith” exemption. IE “We were just trying our best, and made a mistake. We’re sorry”. This would probably fail, since Twitter has a habit of NOT labelling high profile “hacked” materials as “hacked”. IE, Trump’s tax returns.

    6. It’s also important to note that Twitter changed their “Hacked materials policy” very soon after this event. I believe their legal department looked at it, and realized the very large libel problem that it could present

    7. Claims it “might have been hacked material, so it’s OK if Twitter calls it hacked” just aren’t strong enough, unless Twitter can PROVE it is hacked material. The burden is on Twitter here, not the store. This, for example, is like if you were to publish that someone is a murderer. You can’t then argue “they might be a murderer, so it’s OK”

    7. If I was Twitter I would attempt to settle this quietly, with a strong NDA and a nice big settlement. (~$1 million).

    1. 1c. None of this are statements opinion. They are statements of fact.

      I disagree. On my premise that Twitter is a publisher, the “hacked material,” policy ought never to be construed as a statement of fact, lest you deprive the publisher of constitutionally-protected scope for electing to publish, or not to publish, whatever the publisher pleases, based entirely on the publisher’s opinion, and nothing else. I don’t think the 1A affords any power of mandatory publication. You can’t claim legal power to compel publication of anything unless the publisher undertakes a full investigation to show it is not factual. That just gets the publisher’s prerogative backward. But that seems to be your premise.

      To the contrary, the publisher enjoys a prerogative to not publish based on nothing more than opinion that material does not seem factual, and to state that opinion if it wants to. I don’t think expressing that prerogative in terms of policy makes the privilege narrower. If anything, it makes it broader.

      As I said above, support for this libel claim seems to be coming largely from folks who want to use the legal system to shore up a shaky political back-story. As time passes, I begin to wonder what purpose is served by trying to keep that tale alive after political events have bypassed it.

      1. The issue at hand is not Twitter’s decision to publish or not. I doubt you would find anyone here who would argue an imperative to publish against their wishes (but they would rightly be called to task for being hypocritical and biased in their patterns of what they choose to publish or not… but that is not the issue at hand).

        The issue is that in their statement explaining their otherwise legal decision to not publish they made a claim of fact that the material was hacked. It is this claim, and it alone (as opposed to the actual decision to publish or not) that gives rise to this case.

        They say the material was hacked. That requires that there be a hacker, one who has committed the act (often explicitly illegal act, and illegal as by Twitter’s own definitions at the time of their statement) of hacking. The store is then implied to be the provider of hacked material to the Post. Without any further statement then a rational person would conclude that the store is not only the source of the data, but also the hacker that obtained the data illegally. If the laptop is Biden’s and he did drop it off himself (should be provable with store records and receipts) then who possessed it between Hunter holding it and the techie receiving it over the counter that could be the hacker thereby giving Twitter an out by saying “We never ment the store did it!”? That is a bridge too far… that a phantom hack took place as the computer was passed over the counter and placed otherwise non-existent data onto the laptop that was illegally sourced elsewhere?

        C’mon son!

        1. The issue is that in their statement explaining their otherwise legal decision to not publish they made a claim of fact that the material was hacked.

          For the life of me, I cannot understand why it would not be equally justifiable, or more justifiable, to substitute, “statement of opinion,” for, “claim of fact.” Nothing you say in the rest of your comment seems to be a cogent argument to the contrary.

          1. Because if I say you ARE a criminal, that is a statement I am making as though it is a fact claim. Listeners would be inclined to believe there is underlying proof that blacks up that statement and would proceed to accept it as true.

            The listener would behave differently if I said I THINK you are a criminal. They would understand that I, personally, have had exposure to things that lead me to conclude you are a criminal, but there is general uncertainty to the claim among others.

            To do the first, and knowingly or negligently be wrong about it, is the issue here.

            Twitter, it appears, did not do the latter.

            And the rest does make sense. The rest is incoherent precisely because it is the outlandish claim that defenders of Twitter are asking people to believe re: the idea that Twitter didn’t mean that the store owner hacked the material but this apparently convenient “other party” who somehow hacked the material into the laptop while it was still in either Hinter or the store’s posession. If it is hard to follow, then perhaps you shouldn’t offer it up as a likely defense.

            1. To make an opinion into a libel there has to be a suggestion that the speaker has access to undisclosed facts that form the basis of the opinion. That’s what turns “I know what you did last summer, and you are a criminal” into a libel. If I expressly describe which facts lead me to my opinion, my opinion is protected by the first amendment, even if it hurts your feelings.

          2. New York Times refuses to publish a story (well within their rights), but also says they aren’t publishing it because the author is a murderer. Libel or not?

            1. “(hypothetical)
              Libel or not?”

              Depends, Is author a murderer? If he is, you can’t defame him by noting that he is a murderer. In some circumstances, you can’t defame him by calling him a murderer even if he was acquitted of murder charges.

        2. Without any further statement then a rational person would conclude that the store is not only the source of the data, but also the hacker that obtained the data illegally.

          That’s not defamation per se! That defamation by implication.

          And your next sentence is where the implication falls apart:

          If the laptop is Biden’s and he did drop it off himself (should be provable with store records and receipts)

          It’s not. The owner already said he couldn’t identify Biden as the person who dropped it off.

          Incidentally, I do like that the guy is complaining that his business got negative reviews as a result of the situation. The negative reviews weren’t the result of anything Twitter said, and in any case, why would you expect to get anything other than negative reviews if you go around disseminating your customers’ private information?

          1. Well, he gave it to the FBI, because he thought it was possibly criminal. At least as far as I’ve read. Substitute ‘child porn’ for ‘hunter biden’s emails’, and no one would disagree with that decision.

            1. He gave it to Rudy Giuliani. Rudy Giuliani is not the FBI.

              And he didn’t think it was possibly criminal. What about the laptop could he have thought was possibly criminal?

              1. He also gave the laptop to the FBI in 2019.

                1. That’s not at all clear. When the story about the laptop came out, there was a document also posted purporting to show that the FBI had subpoenaed it. If he had given it to them, they would not have had to do that.

                  But it doesn’t change the fact that he gave the laptop to Rudy. He made a copy of it and gave it to Rudy. That is not the behavior of someone who is just innocently reporting a possible crime to the police.

        3. “Without any further statement then a rational person would conclude”

          Don ‘t speak for the rational people.

      2. You are stuck, and wrong. The back-story is not important to the libel charge. Your arguments re compelled publication, et cetera are silly, Twitter has described itself as not being a publisher, and that is all that you need to know -your argument and opinion on the matter fail. Further, Twitter chose to suppress mention of the story via removing user tweets -again, your publishing argument falls through shaky ground, unless it’s driven solely by bias. The argument that is important, is whether or not a suit for libel in regard to the hacked materials policy not being equally enforced has merit. It may, as has been pointed out.

        1. ” Twitter has described itself as not being a publisher”

          If Twitter were authoritative on this whole kerfuffle, they can just describe themselves as not having defamed anyone and we’re done.

    2. “2. The computer in question was dropped off by Hunter Biden in 2019 and abandoned.
      2a. Now a lot relies on the abandoned property policy. However, it is likely worded as something like “property left more than 90 days without payment will become property of the store”.
      2b. At this point, any access to the computer and its data would be authorized by the owner…the store.
      2c. As a result, any claims the access was “unauthorized or illegal” would be lies. ”

      A lot of unstated assumptions in there, starting with the assumption that the tentative identification of Hunter Biden is accurate. the shop could clear a lot of that up by showing a photocopy of the state-issued ID of the person who dropped off the device, along with some documentary proof that the person who dropped off the device actually had any authority to access it.
      If the person who dropped off the device didn’t have any authority to authorize access to the device, then they didn’t transfer any authority to access the data on the device to anyone, no matter what the policy of the store is regarding failure to pick up devices.

  13. In the field of cybersecurity there are many hackers. They work at the behest of the company attempting to find ways in which the system might be breached, or to monitor the systems to detect when others might be attempting to breach systems. The term ‘hacker’ or ‘hacked’ is not really intrinsically derogatory anymore. The context of the use matters more than the word itself.

    If what Armchair says about Twitter’s definition is accurate, then their statement of illegality provides the necessary context for the use as derogatory. If the store has the mentioned ‘abandoned property’ clause that includes ownership transferring to the store then I tend to agree with Armchair’s assessment.

    1. Why would the illegality reference be necessary? Wouldn’t the statement “We won’t publish because it’s hacked material,” imply a negative view of the hacking in question, as opposed to the white hat variety?

      And while in the tech world there are white hat hackers… the term to the general public still operates generally off of the black hat idea of a hacker. Thus to the average reader, Twitter can be assumed to be ascribing to someone a nefarious trait.

      1. “Why would the illegality reference be necessary?”

        It might not be strictly necessary, but it certainly helps Mac Isaac’s case, because it defines “Hacked material” in Twitter’s own terms.

        Let’s imagine Twitter’s own definition didn’t exist. Twitter’s lawyers would then argue for alternate definitions of what “hacking” meant. The Merriam Webster definition is common. But you could also use the AVG definition. For example

        “Hacking means compromising computer systems, personal accounts, computer networks, or digital devices. But it’s not necessarily a malicious act — there’s nothing intrinsically criminal baked into the official hacking definition. Another way to define hacking is simply as the use of technology or related knowledge to successfully bypass a challenge.”

        A clear line of defense for Twitter’s lawyers would then be “Yes, that’s what we meant by hacking. And Mac Isaac clearly did that, he used technology to bypass the challenges. That’s all we meant.

        Would that fly? Probably not…but it might introduce enough ambiguity into the claims that in addition to other items, Twitter might escape. But since Twitter did us the benefit of defining “Hacking” a priori, this redefining hacking argument is DOA

      2. ” Thus to the average reader, Twitter can be assumed to be ascribing to someone a nefarious trait.”

        Specifically, that someone is attempting to publish hacked material. Labelling something as “hacked” does not imply that any specific person is the one who “hacked” it. And then the entire libel claim evaporates.

  14. This claim has legs, I would think.

    Twitter may argue that their statement regarding hacked materials did not refer specifically to John Paul Mac Isaac as being the perpetrator of hacking, but only that the materials were hacked. I don’t think this will help them considering how crazy broad “hacking”/computer crime statutes are, broad enough to include all collaborators and maybe even mere possession. But in any event, Twitter was still calling the plaintiff a liar.

    Maybe Twitter can claim they relied on professional advice from the anonymous deep state hacks whose lies they parroted.

    1. IF the store can show that Hunter dis drop off the laptop… who did the hacking and when? How did the material get on the laptop in such a way that it was illegally obtained from somewhere, placed on the laptop while it was either in Hunter or the store’s possession, and placed on the laptop in a way that the store would have come across it legally within the terms of its repair contract/privacy statements?

      On the surface the idea of there being a hacker on the grassy knoll seems like a solid put for Twitter… but upon examination it just doesn’t seem to hold up. The story becomes so fanciful that really you are only left concluding that Twitter thinks the store did the hacking and implied as much.

    2. “Twitter may argue that their statement regarding hacked materials did not refer specifically to John Paul Mac Isaac as being the perpetrator of hacking, but only that the materials were hacked.”

      Pointing out that plaintiff was not actually defamed seems relevant to a defense against a claim of defamation.

  15. ” Mac Isaac also alleges that the New York Post story “published a photo of Plaintiff’s business thereby notifying the public where BIDEN had dropped off his laptop.” ”

    Mac Isaac, the clinger who is reported to have contacted Rudy Giuliani (and ostensibly provided a copy of the hard drive to Giuliani) to try to make political hay of this?

    Mac Isaac, the dumbass who asked the court to award Five Hundred Million Dollars ($500,000,000.00)?

    Mac Isaac, the Trump fan who apparently emulated his hero by getting thrown out of court today?

    Mac Isaac, who aggressively went looking for trouble and now whines about how this story has damaged his business (perhaps because many people consider him an untrustworthy right-wing jerk)?

    Carry on, clingers . . . and be hapless champions for right-wing nuttery, just like Mac Isaac. Your betters are counting on you.

    1. You’re right, he did get his case thrown out of court:

      “Judge Beth Bloom dismissed the lawsuit in the Florida federal court and noted that Mr. Mac Isaac is a Delaware resident and Twitter is a Delaware corporation with offices all around the world. Twitter’s headquarters are in San Francisco, California.”

      https://www.washingtontimes.com/news/2020/dec/29/john-paul-mac-isaac-source-hunter-biden-stories-tw/

      In short, apparently he used the wrong court, according to the judge.

      1. It is astonishing how no Trumpkin can manage to find an attorney who actually passed Civ Pro in law school.

        1. All of the somewhat competent lawyers who are Trump fans became academics and bloggers?

          When Marc Elias clears his throat, does every conservative lawyer flinch?

        2. “It is astonishing how no Trumpkin can manage to find an attorney who actually passed Civ Pro in law school.”

          Civ Pro is hard and you get it at the same time you also get Con Law, Property, Torts, and Contracts.

  16. I hope this makes it to discovery so we can see Twitter’s internal discussions. Anybody know Twitter’s internal retention policy? A former employer destroyed all our email after 90 days to avoid embarrassing company lawyers. (We had antitrust training from a lawyer who asked us to think about his feelings when incriminating words written by employees were displayed in giant print on a chart in front of a jury.)

    1. John F. Carr, corporations cutomarily employ people known as records management specialists, whose job it is to curate the corporate records, and especially to keep deletions of all non-essential records up to date. Their expertise is in understanding what can, and what cannot legally be deleted, on what schedules, and under what circumstances. The objectives in mind certainly include getting rid of documents which might unnecessarily create legal liability. It is utterly routine procedure everywhere.

      1. “customarily”

        1. Email retention policy is one of the most complicated issues the IT staff has to manage.

          It’s rarely the lawyers who cause things to get thrown away, with storage capacity far more often the cause of purging email records.

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