The Deposition

Sun, 30 May 2010

A little over a week ago, I spent more than two and half hours with lawyers.

I don’t have a habit of hanging out with attorneys. If I had my druthers, I’d have been doing something else that morning, like spending time with my wife, or even doing some needed yardwork. However, I had been "commanded to appear before a person authorized to take depositions". I’d been served with a subpoena naming me, which gave me little choice in the matter.

I had better things I could do with my time, but the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida wasn’t about to let me ignore this just because I wanted to do something else. I showed up like a good citizen and affirmed that I would be telling the truth, while a court reporter duly noted all that was said. Fun.

I had only the most peripheral involvement in the case, styled Richard Terry vs. Armor Correctional Health Services. In fact, I couldn’t care less about this case, were it not for one small detail: An earlier subpoena had been drafted, naming the Florida Progressive Coalition, which sought information regarding anonymous comment authors on an article published to the FPC blog.

Through some as yet to be determined method, the FPC was made aware of this subpoena without actually being served with it. When I first saw it, I failed to notice something rather important. That subpoena naming the FPC was neither signed, nor dated. Strange thing, that.

Regarding the issue of outing an anonymous comment author, I must say that no subpoena, (legally served or not), could have persuaded me to give up information without first seeking legal advice. I am intransigent in my conviction that the First Amendment protects anonymous speech. When Kenneth Quinnell, Executive Director of the FPC, failed to answer my urgent objections regarding the need to consult legal counsel, I tendered my resignation from the organization. I thought that had ended my involvement with this mess.

Yet the very act of making public my resignation over this matter triggered a deeper involvement in the case. It’s worth noting that walking away is what got me dragged back into it. A copy of the blog post in which I made public my resignation from the FPC was received by the plaintiff’s attorney. He contacted me with some questions and after a few emails, I was eventually served with my own subpoena.

So instead of cultivating blisters by digging holes for some fruit trees and bushes I’d recently picked up at the nursery, I spent a beautiful, sunny Friday morning in a hotel conference room, talking myself hoarse.

Despite the formality of the deposition, there was a level of genuine human interaction that I had not expected to encounter. I would never have chosen to become involved in a legal proceeding like this one, but as a life experience, I am glad to have had it.

I was able to articulate, for the record, my absolute belief that the First Amendment protects anonymous speech; and that it was the intent of Founders to protect not only formal journalists, but all forms of the press, including pamphleteers and rabble-rousers. I consider myself a sometimes journalist, an occasional pamphleteer, and a full-time rabble-rouser. I blog without hiding behind the shield of a pseudonym, but I understand the reasons one might decide to write anonymously and will always respect the rights of those who do so.

There is a small chance that I may be called to testify in court at some point during this case. I hope I won’t be, as I have better things I could do with the time.

To fellow bloggers who find themselves facing a deposition because of their online activities, I would like to share a few words of advice, (while making it clear that I am not a lawyer and that this is not to be considered any sort of legal advice):

  • Consider seeking legal counsel when you are served with a subpoena. You can’t be certain of your legal rights if you go it alone. The last thing you want to do is incriminate yourself somehow, or admit liability to something actionable. (That said, I trusted in my own ability to navigate my way through this deposition, though I wouldn’t recommend that course for anyone else.)
  • Show up early for the deposition. Get adequate directions and leave early so that you can show up on time, even if traffic is heavy. If you make allowances for any unexpected delays you might encounter, you will have time to compose yourself and relax prior to the ordeal.
  • Come prepared. Gather and sort out any requested or otherwise relevant documents well beforehand. Organization allows you to fully respond to document requests. Reviewing the material and referring to documentation during the deposition will help you respond accurately to any questions.
  • Keep a good attitude throughout the deposition. Even in an adversarial situation, having a pleasant and professional demeanor will allow you to remain relaxed and confident.
  • Try not to interrupt the lawyer’s questions. The court reporter cannot easily transcribe any crosstalk. The questions are usually formulated beforehand and if you interrupt, the lawyer will likely start over and repeat the question, which will waste time.
  • Be articulate and direct in framing your responses. Don’t dither or beat around the bush. Get to the point and don’t allow yourself to get sidetracked. Only use words you understand. If your answer requires you to use jargon, (e.g. a word or phrase specific to some field of knowledge), include a short parenthetical definition of the jargon within the response.
  • Relax and be yourself. Getting nervous or tense won’t help you answer questions. Remaining calm reduces mental distraction and will help you stay focused. Speak as you normally would in any professional setting. Avoid verbal affectations intended to make you sound smart, as they will often hint toward the opposite conclusion.

As a blogger and online activist, I have little doubt that we who contribute to New Media will occasionally find ourselves involved in what we write about. At times, that involvement will drag us into legal proceedings. Hopefully, I won’t have any further involvement in this or any other legal proceeding, but it served to remind me that our online activities have consequences in the real world.

Contributing to a blog, in itself, conveys little gravitas, because so many everyday people are now contributing to online discourse. It is important that we remember that choosing to contribute to a blog is not a light decision. Sometimes what we create will affect the lives of those in our audience. Occasionally, we will be confronted with the real life consequences of what we have created.

» Link: / florida / politics / The Deposition

Why I resigned from the Florida Progressive Coalition

Mon, 22 Mar 2010

I recently resigned from the Florida Progressive Coalition. While I have detailed reasons for leaving the group in my resignation letter to Kenneth Quinnell, I also feel it necessary to air some of the reasons in a public forum, here in my blog.

As one of the founding members of the FPC, it was a very difficult decision for me to resign from my position as a manager. I was actively involved in the development of the group for four years, and many of my suggestions were key in making the group as successful as we were.

As the technical consultant for the group, I spent a great deal of time and effort on projects that were not obvious to the general membership. Few others, beyond Kenneth, ever knew how many hours I spent to ensure that the blog and wiki remained functional, spam-free, and secure from hacking attempts. I learned a great deal about the platforms we relied upon, and I appreciated the challenges that I was presented with. I found the work to be intellectually rewarding and enjoyable. Very little of what I accomplished was publicly recognized, but a core group of people, (whom I respect greatly), were aware and appreciative of my efforts.

Whatever successes the FPC enjoyed, they were due to a relatively small group of content providers and active managers. Kenneth’s leadership was indispensable; Without Kenny, the FPC would never have been. Operating on a shoestring budget, the group created an incredible amount of content that was of great use to our audience. I think we did amazing work, considering the meager resources we had to work with. I am proud to have been a part of this noble effort, and humbled to have had the opportunity to work alongside this team of exceptional people.

I want to thank all the people who contributed to the Florida Progressive Coalition.

Yet, despite my admiration for the people I worked with, I decided that the time had come for me to move on. Real life concerns often interfere with our on-line lives, and it had become increasingly difficult for me to work with no renumeration. Other of the FPC managers had also found it hard to maintain sufficient engagement with the project to ensure its continued success. When Kenneth’s personal and professional life began to interfere with his ability to contribute material to the blog and erode his effectiveness in leading the group, we lost hard-gained momentum. The FPC was coasting to a halt.

Months ago, I tendered my resignation from FPC management, because family obligations were limiting the amount of time I could devote to the position. Kenneth declined to accept my resignation at that time, as he was willing to have me stay on despite my diminished ability to perform.

Because many of the managers were similarly distracted, there arose a couple of occasions where Kenneth felt pressed to make unitary decisions, when such matters should have required a consensus among the managers. I do not fault him for this, but I was left feeling that I had little power to shape policy within the organization.

The event that ultimately led to my resignation came in the form of a subpoena, where a demand was made for information regarding comments to a post at the FPC blog. I am a great believer in free speech, and I feel that the ability to blog or comment anonymously is essential to maintaining that freedom. I recall that many of the Founders of this great nation chose to write anonymously, and recognizing that tradition, I am persuaded that it was the intent of our Founders to protect such anonymity. I objected to any disclosure of information that might be used to expose the identity of the comment author.

However, my objection came too late. Rather than seeking legal advice on how we might object to such a subpoena under First Amendment protections, Kenneth had already supplied the information to the court, even before informing the managers that we had been served. Compounding this, though two weeks passed, he failed to reply to two emails regarding the matter, leaving me in the dark about his preemptive compliance with the subpoena. Only when I wrote a resignation letter did I receive a reply and an explanation of how he had handled the subpoena.

The FPC simply outed the authors of comments to its blog, without first asking for any legal advice. When presented with a First Amendment challenge, rather than stand up, it rolled over.

Kenneth didn’t know any better. He did not understand that the subpoena could be challenged.

In my view, the outing of an anonymous comment author is a cowardly and perfidious action. It is with shame and regret that I admit to being unable to stop this from happening.

I was left out-of-the-loop on this matter of great importance. I was not consulted. I lacked the authority required to exercise the responsibilities of management within the FPC. Therefore, for reasons of principle, I have chosen to distance myself from the organization and have resigned from its management.

I hold no ill will toward the FPC and I wish them success in their future endeavors, but they will have to continue without my not-inconsiderable help and guidance.

» Link: / florida / politics / Why I resigned from the Florida Progressive Coalition

Interview with Jason Steele regarding RPOF Twitter-gate

Mon, 16 Nov 2009

In a previous post, I asked: Is a Twitter impostor really a criminal? Brevard County Republican Chairman Jason Steele decided to provide an answer to that and other questions raised in my post. Following an informal, off-the-record phone chat, he consented to an email interview.

The Florida statute by which BCSO justifies the investigation and subsequent subpoenas is FSS 817.568 Criminal use of personal identification information: "(4) Any person who willfully and without authorization possesses, uses, or attempts to use personal identification information concerning an individual without first obtaining that individual’s consent, and who does so for the purpose of harassing that individual, commits the offense of harassment by use of personal identification information, which is a misdemeanor of the first degree..."

Interview follows, (emphasis in original):

Q: As I understand the situation, your criticism of early endorsements of primary candidates by Greer and other state party bosses, (specifically, the RPOF leadership backing Crist over Rubio in the Republican primary race for U.S. Senate), has triggered a backlash, in which the state party leadership has aligned itself against you. You seem to be taking the position that Greer and the RPOF leadership should remain neutral in the primaries, and allow Republican voters to decide which candidates should prevail. Is this essentially correct?

A: YES. The Florida primary election process puts the decision making power in making partisan nominations in the hands of Republican voters, and the Republican Party has an obligation to respect that process.

Q: A party grievance was filed against you, charging that you violated your Republican loyalty oath, and a subsequent grievance committee hearing placed you on probation within the RPOF. I’ve seen a number of pundits, (notably among them, Doug Guetzloe), describe this action as part of a "Florida Republican Party purge". Do you believe that state party leaders are seeking to purge vocal conservative critics from the party?

A: I certainly believe that there are those at the state party who think the party would be better off without the more vocal conservative elements. I am not one of these, obviously. Quite contrary to this belief, I would like to see our party accept that our conservative roots are the real strength of the Republican Party.

Q: The BCSO investigated a fake Twitter account that impersonated you. The account posted messages that could have been seen as damaging to your reputation. Such impostors are common on Twitter, and public figures such as politicians are often the target of fake accounts. Twitter has simple procedures in place for shutting down impostor accounts. What made you feel it was necessary to instigate a criminal investigation, rather than pursuing a civil case to resolve the matter?

A: Because something is common place, does not mean it is acceptable. It is particular unacceptable when this behavior is engaged in by a professional political operative. We need to send a message to those who would accept this behavior as the norm, by prosecuting these crimes to the fullest extent allowed by law. Also, because this identity theft took place in the political arena, I think it is important that the prosecution go forward. It is very disillusioning to worthy young people who will not enter public service because of this sort of "dirty politics." This sort of behavior that I was the victim of must stop.

Q: In the U.S., public figures who bring an action for libel have the additional legal requirement to prove "actual malice". It is often difficult to prove actual malice. Was this a consideration in foregoing a civil resolution to the matter?

A: No. The fact of this matter is that the very nature of several of the posts establish a clear malice. It is my belief that action for this belongs in the purview of law enforcement, not personal gain. This fraudulent behavior needs to be addressed, but litigation cannot restore the damage to my reputation or the embarrassment and humiliation that my family has suffered. Let’s focus on fixing the problem!

Q: Often, these impostor accounts are intended as parody and satire of public figures. Do you feel that this impersonation was something more egregious than that? If so, do you think it rose to the level of a malicious libel?

A: I do. I can respect a parody. If properly disclaimed, and understood to be a political satire, then while I find it sometimes distasteful, it is a form of free speech. In this case, the author of this account clearly wanted his audience to believe that it was me. I think the anonymous nature of the account speaks clearly to that intent. Saturday Night Live is usually pretty clear that they are making fun of someone, this account was not like that.

Q: What crime did you think may have taken place when you asked BCSO to investigate the fake account? More specifically, what alleged crime could have been committed that might justify BCSO serving subpoenas to Twitter and Nungesser’s ISP?

A: Given the use of both my name and photograph, I believe it could be identity theft. Also, I am neither a law enforcement expert nor a lawyer but there could be other serious crimes that are implicated.

Q: Do you believe there were other individuals within the RPOF, beyond Nungesser, involved with the creation and maintenance of this impostor account? If so, and if a crime is alleged to have taken place, do you think that this warrants a further investigation into possible charges of conspiracy?

A: Yes. We know from conversations we have already had, that others at RPOF knew of this and at the very least implied approval by not insisting the sight be taken down. If it is proven that these RPOF employees had an active hand in this, then each and everyone involved should be subject to a full accounting under the law.

Q: What would you consider to be an appropriate resolution to this case? Do you wish to see Nungesser, (or others who may have been involved), prosecuted?

A: This case will not be resolved as simply as the legal prosecution. To really reach an acceptable resolution the Republican Party needs to look long and hard at how we use electronic media, and what kind of behavior is acceptable. We need to set a standard, and that is my primary focus. I also believe strongly that the Republican Party of Florida owes the Brevard Republican Executive Committee a formal apology for its involvement in the false Twitter account as well as for their complicity in the filing of the grievance against me.

Q: Do you think that the BCSO would investigate a Twitter impostor if the complainant was an average citizen of Brevard, rather than someone who holds a powerful position in local Republican party politics?

A: I would certainly hope so. I cannot speak to the policies of the BCSO, but knowing Sheriff Parker, I would bet that he would treat every violation of the rights of our citizens as a top priority for his office.

Q: Do you believe that the cost of the BCSO investigation is justified, given that budgets are limited and that every dollar spent on this investigation is money that won’t be spent investigating violent crimes?

A: Yes. Enforcing the law is the primary focus of our law enforcement agencies, and that includes all laws. It is sad that such crimes occur at all, but when they do it is incumbent upon our law enforcement agencies to investigate. I do agree that times are tough, but that is particularly why we need to crack down on this in order to discourage future crimes of the same nature. Stealing someone’s identity and publishing remarks that ruins or damages a person’s reputation is a serious crime.

» Link: / florida / politics / Interview with Jason Steele regarding RPOF Twitter-gate

Is a Twitter impostor really a criminal?

Fri, 06 Nov 2009

As an early adopter, I’ve been using Twitter since early 2007, and in this time I’ve seen plenty of fake twitter accounts. Deception is no new phenomenon, even in this relatively new form of communication.

Politics is rife with deception. One doesn’t need to be a student of Machiavelli to realize that misinformation often works well in discrediting an enemy. So I’m not surprised to learn of any fake Twitter accounts that were set up for the purpose of smearing politicians. This is just an old game being played out in a new arena.

However, a recent story out of Brevard County caught my attention. Brevard County Republican Chairman Jason Steele was the victim of a fake Twitter account, an impersonation which, (if anyone were to take it seriously), cast the Chairman in a negative light. The perpetrator behind this spoof was revealed to be the recently promoted RPOF Director of Field Operations, (formerly the RPOF Director of Youth Outreach Department), Tim Nungesser. The RPOF terminated Nungesser after a subpoena from the BCSO revealed his connection to the account.

Following are a selection of links to the story:

The news and blog accounts of this story neglect a key question that should have been asked of law enforcement: What alleged crime could have been committed that might justify BCSO serving subpoenas to Twitter and Nungesser’s ISP?

Certainly, criminal acts can and do occur on Twitter. Serious threats, stalking, extortion, and other heinous acts can take place over this, (or any other), electronic medium. There are Twitter Support Guidelines for Law Enforcement in place for the purpose of aiding police in the investigation of criminal acts that might have taken place using Twitter.

Yet I have doubts that these subpoenas could be justifiable in light of the nature of this fake account. I have no direct knowledge of the messages sent from this fake account, but drawing on personal experience reading other twitter fakes, and from reading what few tweets were quoted in various news sources, it appears that Nungesser was guilty only of publishing satire, parody, and hyperbole. A reasonable, intelligent reader would not have accepted the account as genuine.

Again, I must ask: What alleged crime was cited in justifying the issuance of subpoenas in this case?

Was this a purely “political crime”? Is satirizing a politico now illegal? If someone were to impersonate an average citizen of Brevard, using Twitter, could the victim rely on the BCSO to investigate it as thoroughly as was done in this case... Or does the BCSO specialize in acting as a political enforcement arm for Brevard County’s Republican Chairman?

I would like to see the FDLE investigate the appropriateness of these subpoenas. Did political reasons motivate BCSO to abuse subpoena powers as a favor to the Republican Chairman? How many law enforcement hours were devoted to this investigation, and at what cost to Brevard’s taxpayers?

Twitter has a simple procedure for shutting down fake accounts, which are in violation of Twitter’s TOS. Why Steele chose to use law enforcement resources to pursue what was, at most, a civil matter, is a question that should trouble residents of Brevard County. Every dollar spent on this spurious investigation is money that won’t be spent to catch a violent criminal.

Update: Interview with Jason Steele regarding RPOF Twitter-gate

» Link: / florida / politics / Is a Twitter impostor really a criminal?