Free Speech

Hunter Biden Laptop Repairman's Federal Libel Lawsuit Against Twitter Dismissed

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Mac Isaac v. Twitter, Inc., decided yesterday by Judge Beth Bloom (S.D. Fla.), stems from Twitter's blocking Tweets of the New York Post's stories about information gotten from Hunter Biden's laptop, which had apparently been abandoned at John Paul Mac Isaac's computer repair shop (after it was dropped off so he could "recover information from damaged Mac computers owned by Hunter Biden").

Mac Isaac apparently passed the computer or copies of the material from the computer to the FBI and to Rudy Giuliani's lawyer; from there it made its way to the New York Post, but when the Post wrote about it, Twitter blocked the Post's Tweets on the grounds that they supposedly came from "hacked material." ("Pursuant to [Twitter's] Hacked Materials Policy, a 'hack' is defined as 'an intrusion or access of a computer, network, or electronic device that was unauthorized or exceeded authorized access.'")

Mac Isaac sued for libel, but the judge concluded that the statement didn't sufficiently identify Isaac (though later press accounts did identify him):

Plaintiff alleges that the Explanations are defamatory per se because they created the belief among members of the community that Plaintiff: (1) committed a crime— hacking; (2) was subject to hatred, ridicule, contempt, or disgrace—threats of harm and negative business reviews; and (3) was injured to his trade or business as a result—closed his business….

Specifically, Defendant first argues that Plaintiff's defamation claim fails as a matter of law because the Explanations "do not name Plaintiff or his business" or even "permit an 'ascertainable implication' that they were about Plaintiff.", however, maintains that the Explanations themselves need not specifically identify Plaintiff to be defamatory and Plaintiff is permitted to present extrinsic evidence in the form of the NY Post Article to demonstrate that the Explanations referred to him….

Florida courts have long held that if a defamed person is not named in the defamatory publication, "the communication as a whole [must] contain[ ] sufficient facts or references from which the injured person may be determined by the persons receiving the communication." The relevant inquiry is whether "the average person upon reading [the] statements could reasonably have concluded that the plaintiff [ ] was implicated[.]"

Here, while the Amended Complaint alleges that the NY Post "published a photo of the Repair Authorization … without blurring the business name thereby notifying the public where Biden had dropped off his laptop[,]" the Explanations did not include the subject photo. Nor did the Explanations mention Plaintiff, the Mac Shop, or provide any other descriptive information identifying Plaintiff as a purported "hacker."

In his submissions, Plaintiff seemingly concedes that the Explanations did not reveal his identity, but nonetheless avers that the Explanations "should not be evaluated in a vacuum and extrinsic evidence such as the NY Post article should be considered in order to show that the [Explanations] were referring to Plaintiff as a 'hacker' and/or the source of the confidential information." As such, Plaintiff seeks to impose liability upon Defendant based upon external facts and statements attributed not to Defendant, but rather unaffiliated third parties. However, Plaintiff's extrinsic evidence theory is flawed for several reasons.

First, the law in Florida dictates that defamation per se must be "actionable on its face" and does not "require[ ] additional explanation of the words used to show that they have a defamatory meaning or that the person defamed is the plaintiff." For example, in Scobie v. Taylor (S.D. Fla. 2013), the court explained that defamation claims can be proven in either of the following ways: (1) defamation per quod, which "requires an additional explanation of, or an interpretation of innuendo suggested by the words used to demonstrate the defamatory meaning or that the plaintiff is the subject of the statement[,]" or (2) defamation per se, which "does not require any additional explanation in order to prove the defamatory nature of the statement." The critical distinction between these actions is that in per se cases, "consideration is given only to the 'four corners' of the publication and 'the injurious nature of the statement' " must be apparent from the words of the publication itself. Thus, because Plaintiff has asserted a claim for defamation per se, looking outside the four corners of the Explanations to show that "the person defamed is plaintiff" would run afoul the very nature of a per se action….

The Court is certainly sympathetic to the events that took place and could envision a plausible claim had the explanations identified the "Mac Shop," "a Delaware repair shop" or even included a photo of the Repair Authorization. However, such is not the case here, and the law will not subject Defendant to liability where it was "meticulous enough" to preserve Plaintiff's anonymity [within the four corners of the Explanations]….

NEXT: Christopher Yoo, "The First Amendment, Common Carriers, and Public Accommodations: Net Neutrality, Digital Platforms, and Privacy"

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  1. I plan to start wiki websites containing information from right to know demands or from discovery.

    1. Don’t talk about it. Do it, tough guy.

  2. And another LOLSuit bites the dust.

  3. The judge seems to have decided that Twitter is entitled to an award of attorneys’ fees and costs under Florida’s anti-SLAPP statute (Order On Motion To Dismiss at 15), but also ordered the clerk to close the case, perhaps planning to address the fee award in connection with entry of a final order.

    The two attorneys listed on the (second) defamation complaint filed for Mr. Isaac, one from Florida and the other from Maryland, appear to be experienced, accomplished . . . tax and estate lawyers.

    Does anyone recall why Mr. Isaac (or his lawyers) chose Florida — whose state law appears to have undone his claim, and precipitated a fee award favoring Twitter — for his litigation against Twitter?

    1. I’ll just note in general terms that the quality of lawyering around this and related topics has perhaps on occasion fallen short of stellar.

      Plaintiffs have appeared to this observer to have been more interested in telling journalists about lawsuits than in the lawsuits themselves, but I’m just a dirty hippy, hardly a galaxy-brain lawtalker like Rudy911, or even a kraken.

      1. Maybe there was a sound reason to lurch toward Florida for this litigation, but Florida statutes have not vindicated that strategy, at least not yet.

        The disaffected clingerverse tends to include and hire lousy lawyers, at least so far. Perhaps Trump Election Litigation: Elite Strike Force will improve with time.

        1. Most of these lolsuits are venued based on the my-lawyer-lives-here provision of § 1391. But in this case he had two, one in Florida and one in Maryland, so I’m not sure what prompted them to pick Florida.

  4. It does seem to be that Mr. Mac Isaac did in fact hack the computer in that he did pass on information when he was not authorized to do so.

    1. It is in fact fairly certain that he didn’t do so, because his repair shop had the standard policy that computers left behind without payment became the property of the shop. Leaving the laptop with him despite this policy constituted authorization.

      1. While the computer would be considered abandoned and therefore the property of the shop, I would question whether that same authorization would apply to the data on the computer. I this case the owner might have wiped the data and then sold the computer. But passing on the data is to my way of thinking a violation and is a hack.

      2. It is in fact fairly certain that he didn’t do so, because his repair shop had the standard policy that computers left behind without payment became the property of the shop.

        What’s your basis for this claim? It’s certainly not reflected in the repair agreement that was attached to the complaint.

        1. Well, Brett’s only half wrong. The agreement says that it “will be treated as abandoned,” which is not in fact the same thing as “becomes the property of the shop.”

          https://storage.courtlistener.com/recap/gov.uscourts.flsd.587211/gov.uscourts.flsd.587211.1.20.pdf

          But… as Moderation4ever says, that the equipment is abandoned would not mean that the shop is entitled to access and disseminate the information on the laptop.

    2. If, as the Plaintiff alleged and pretty much all reports support, the laptop was abandoned, then Mr MacIsaac did indeed have authorization to that information. Your claim that he committed the crime of hacking is supported by precisely no one.

    3. That is not hacking. See the Supreme Court’s recent decision in Van Buren v. United States (2020).
      https://www.supremecourt.gov/opinions/20pdf/19-783_k53l.pdf

      1. Also, the hoi polloi don’t care until their betters tell them to in a process of hurting political opponents.

        Then it becoms a major freaking danged point we are all vested in.

        Without such focus and stripped of that political hurt opponents context, it just returns to q civil liberties and clarity issue.

      2. Interesting case. Justice Barrett did not see Van Buren offense as criminal but did not seem to excuse his actions. So while the action is not a criminal offense it is still and unauthorized use of information. I still think we are talking hack here.

      3. It is far from obvious to me that 1. “Hacking” is synonymous with “conduct that violates the Computer Fraud and Abuse Act” and 2. Mr. Isaac’s conduct did not violate the Computer Fraud and Abuse Act.

        1. Noscitur, I am with you on your point 1, but Bored seems to have the better position on 2. Mac Isaac was engaged to recover data from the damaged laptop, which means he was authorized to access everything on it, and Van Buren held that it is not a CFAA “exceeds authorization” violation to misuse authorized access for an unauthorized purpose. Are you seeing some other angle here?

          1. Perhaps there’s more detail available elsewhere, but it’s not clear to me from the complaint exactly what Hunter Biden hired Mr. Isaac to do, or what authorization (implied or express) he would have had to access the contents of the laptop in order to do it. It’s certainly possible that his conduct wouldn’t satisfy the statute under Van Buren, but it’s not obvious that he’s in the clear either.

    4. ” he did pass on information when he was not authorized to do so.”

      Wow!

      Who knew that the mainstream media is guilty of “hacking” almost daily. At least when voters elect a guy who wants to put America first. LOCK THEM UP!

    5. The computer was his when Hunter failed to pick it up within the expressed period of time to do so.

      So, one cannot hack their own property.

  5. Professor Volokh : “…. Biden’s laptop, which had apparently been abandoned at John Paul Mac Isaac’s computer repair shop …..”

    “Apparently” carries a heavy load in that statement. The blind-Trump-fanatic-computer-repairman cover story still has a fishy reek to my nose.

    1. Hey, drug addled people often forget where they left their property.

      1. And sometimes they become delusional with respect to the provenance of birth certificates . . . or the credibility of claims of election fraud . . . or the prospects for conservatives in the American culture war . . .

    2. So… what do you think actually happened?

    3. So are you still on the secret Russian agent conspiracy theory?

      You may need to double check that your ShareBlue talking point software is updated to the latest version.

      1. U.S. intelligence warned Donald Trump in writing that Rudy Giuliani was seeking Hunter Biden dirt from people the CIA considered Russian intelligence agents. This warning occurred in 2019 and was widely reported in newspapers at the time – long before the laptop story emerged.

        The warnings were based on multiple sources, including intercepted communications that showed Giuliani interacting with people tied to Russian intelligence during a December 2019 trip to Ukraine, where he was gathering information on Joe Biden and his son.

        The warnings led national security adviser Robert O’Brien to caution Trump any information Giuliani brought back from Ukraine should be considered contaminated by Russia.

        But O’Brien emerged from the meeting uncertain he had gotten through to the president. Trump “shrugged his shoulders” at O’Brien’s warning, and dismissed concern about his lawyer’s activities by saying, “That’s Rudy.”

        https://www.washingtonpost.com/national-security/giuliani-biden-ukraine-russian-disinformation/2020/10/15/43158900-0ef5-11eb-b1e8-16b59b92b36d_story.htmlliani

        But – hey – it turns out Rudy didn’t need to do all that wheeling & dealing with Russian agents. By a gosh-darn coincidence the exact same info emerged wholly by chance from a Blind-Trump-Fanatic-Computer-Repairman. And just in time to be an October Surprise!

        Poor ML will need an encyclopedia of talking points to make that coincidence plausible…..

        1. Sorry, I don’t speak conspiracy nut gibberish.

        2. GRB, Hunter admitted he left it there. And literally nobody has disputed anything in it.

          1. Citation, please. I’ll start the popcorn while waiting.

            To be fair, Hunter Biden did tell CBS News in April that he has “no idea whether or not” the laptop belongs to him. “There could be a laptop out there that was stolen from me,” Hunter Biden said in the interview. “It could be that I was hacked”

            He did not (repeat, not) admit he left his laptop at the blind Trump fanatic computer repair shop. Maybe one of your handlers told you otherwise, damikesc, but they regularly lie to you, don’t they? (Kinda strange how that never bothers you, but – hey – your business, not mine)

            So Giuliani spends half a year trolling the sewers of Ukraine for Hunter dirt. The CIA warns the White House that Giuliani is negotiating with Russian agents – and that warning is reported front-page news months before the laptop emerges.

            Then by “Amazing Coincidence” the same dirt emerges right before the election, packaged with the most goofy & inept cover store that any addled alcoholic husk of a former mayor ever devised.

            Because by another “Amazing Coincidence”, Giuliani is right there running the show! Well, I guess you can only get so much mileage out of a blind Trump fanatic computer repairman before HIS handler needs to take over……

  6. Plaintiff’s argument seems to be wrong in another way. Even if Twitter had directly identified the repair shop, it didn’t specify the repair shop owner as the one who had done the hacking. It just said that the material was hacked.

    1. If it’s a sole proprietorship, then libeling the business libels him.

      1. A sole proprietorship can not have an employee, or hire an independent contractor to provide services?

      2. Twitter didn’t say that the repair shop did any hacking either.

    2. That argument is absurd on its face, as is this judgement.
      Accusing a person of a crime while not naming their name is MEANINGLESS when you know their name is being released elsewhere. It’s putting the thinnest veneer of deniability while providing cover equivalent to a pixel of censorship on an 8K screen.

      1. Even assuming that “hacking” is the same thing as a crime, when did Twitter accuse anyone of a crime? Here’s what Twitter said (as pleaded in the complaint itself):

        a. “YOUR ACCOUNT HAS BEEN LOCKED. What happened?

        Violating our rules against distribution of hacked materials.

        We don’t permit the use of services to directly distribute content obtained through hacking that contains private information, may put people in physical harm or danger, or contains trade secrets.”

        b. “We want to provide much needed clarity around the actions we’ve taken this morning with respect to
        two NY Post articles that were first tweeted this morning.”

        c. “The images contained in the articles include personal and private information – like email address and phone numbers – which violate our rules.”

        d. “As noted this morning, we also currently view materials included in the articles as violations of our Hacked Materials Policy. We don’t condone attempts to compromise or infiltrate computer systems for malicious purposes.” (emphasis added)

        Does that say that the computer shop owner, the computer shop, or anyone affiliated with the computer shop did any hacking?

  7. Doesn’t Giuliani have the hard drive that laptop now? You would think if it had all sorts of sordid and explosive information about Hunter he could have released it by now.

    Maybe he can get the Cyber Ninja’s to help.

    1. Fucking hookers, smoking crack, and admitted influence selling is not quite sordid enough for you?

      It’d have been “Explosive” except Big Tech decided it was not really news when, you know, it truly was.

      1. Hilarious. The Hunter Biden dirt was reported in exhaustive detail in newspapers, TV & radio news, internet & magazines. How could anyone have missed a single detail? What exactly do you claim they missed?

        A reminder : The thimbleful of scandal involved amounted to this:

        1. Hunter led a dissolute life – which everyone already knew.

        2. Hunter may have gotten a biz associate a handshake with daddy, which by Washington standards is kindergarten-grade stuff. There was more influence-peddling on a good weekend at Mar-a-Lago during DJT’s presidency than little Hunter managed his entire weaselly career

        3. Hunter may have proposed cutting daddy in on a biz deal after the latter had left office and was a private citizen, The deal went nowhere anyway.

        And that’s all, folks. There was zilch else there. Damp squibs put on better fireworks than all the “scandal” that laptop ever produced. Why do you think Giuliani flirted with claims he had child pornography off the laptop, and then never delivered? Why do you think Tucker Carlson said he would unveil a “shocking new development” from the laptop, then blame his failure to produce on a two-day delay in the mail?

        Carlson had nothing; Giuliani had nothing; the NY Post had nothing. It’s typical Right-wing loser victimhood whining to blame their nothingburger on vast media conspiracies. Everything on the laptop was reported. You’d have to have been deaf, dumb & blind not to notice. There just wasn’t much there there.

  8. Is there an abandon policy at the store where the PC becomes property of the store?

    1. Yes. That’s been well known since the very beginning

    2. No. The repair agreement only said that after 90 days property would be “treated as abandoned”. Delaware law allows transfer of title after 1 year, with a court order.

      1. Delaware law on abandoned property

        But this does not address the case where the owner has entered into a contractual agreement explicitly declaring a shorter time frame for abandonment, it merely represents a default rule. While I’m open to evidence that this isn’t the case, I would presume the repair agreement stating 90 days would be controlling.

        1. One thing’s certain. An analysis of the 90 day contractual agreement vs. 1 year state law sans such, will be done in a carefully disintersted manner, severed from whether one has decided which way to rule depending on which political opponent one wants to hurt.

          1. Yes, that is how judges operate. Heh.

        2. Brett,
          You haven’t established that “treated as abandoned” transfers title.
          Under some circumstances the common law of bailment would have that effect but the Delaware statute you linked to preempts that result, and it requires a court order that Mac Isaac didn’t get.
          An alternate argument that the treated-as-abandoned provision is a contractual election of the common law rule runs up against Delaware Code title 12 section 1157 which in relevant part reads

          Any provision in a […] contract […] which relates to property that is or may be subject to the provisions of this chapter, […] and which provides that upon the owner’s failure to act or make a claim regarding property in possession of the holder that the property reverts to or becomes the property of the holder is void and unenforceable.

          1. Ouch. Very ouch.

  9. It seems that all that the plaintiff’s lawyers had to do to preserve their case was allege an in quod libel claim in addition to the per se one. Fewer bragging rights and no automatic claim to punitive damages. Perhaps less emotional satisfaction. But a viable claim.

    1. Not on this judgement. The ruling is that no one could identify the shop owner from the article and so no libel is possible. The idea is preposterous and so brazenly false that if was possible for a judge to be guilty of perjury, I would demand he be charged with it.

      1. How have such demands worked out for you so far?

      2. The ruling is that no one could identify the shop owner from the article

        You’re confused. The ruling is that no one could identify the shop owner from twitter’s post explaining why it blocked the NYP’s account.

        1. No extrinsic information?

          So if there’s a big public news report with explosive information which identifies its source, and I say, “that information came from a criminal who has a loathsome disease.” Not actionable, because I didn’t say who it was! Haha!

          Seems a bit too cute. Almost like saying, there’s a guy, I’m not saying who, but it rhymes with Ronald Pump.

          1. Florida has a cause of action for defamation that requires extrinsic information. It’s just not the one pleaded in this case.

    2. Granting the dubious premise that Mr. Isaac would have been able to plausibly plead actual damages, how is it that you think such a claim would have fared any differently?

      1. Yeah; granting everything else, ultimately Mac Isaac would have to show that the alleged damages he suffered came from the fact that Twitter falsely called him a hacker rather than from the fact that he takes laptops that people drop off at his shop and disseminates their contents indiscriminately.

  10. Leftists get away with defamation again.

    1. Clingers just can’t win. You guys should probably quit trying. Your position is hopeless and worthless.

  11. I mention this from time to time. It is only tangentially about this case, but the case has something important to say to folks who publish charges which may be libelous.

    Sometimes, a reporter who is unsure of his story, or maybe just sympathetic to someone involved, faces temptation to report the, “facts,” of some kind of alleged wrongdoing, but omit the name of the perpetrator. There can be a feeling that getting the story out anonymously puts a potentially important, or at least useful, factual picture before the public, while avoiding more rigorous reporting requirements which would attend naming a perpetrator.

    That is always terrible journalistic practice. Far too often, it opens the door to incorrect speculation—especially from people more-distantly involved—about who the unnamed party is. That speculation is not infrequently mistaken by the speculator as certainty, and reported to others as fact, with the apparent link to the reported situation taken as corroboration.

    The correct rule is do not report a story which might implicate wrongdoing unless you are prepared to name the perpetrator in the story, and spell the name right. A reporter who omits to follow that rule risks becoming the source of uncontrollable damage to the reputations of completely innocent people.

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