Legal Considerations of Posting on the Internet

[Frank Ettin]

Regarding the new Sticky here, Legal Considerations of Posting on the Internet:

The question is often asked whether a person's postings on the an Internet forum have been used against him in court. I've just found a case in which they have.

One Leonard Embody (better known on gun forums as Kwikrnu) was detained when openly carrying a gun through a city park in Tennessee. He was detained and ultimately found to be conducting himself legally. He sued charging violations of his civil rights. He lost on the defendants' motion for summary judgment.

Here is his deposition in that case. Appended to his deposition as exhibits are hard copies of a number of his postings on Internet gun forums.

 

[Owen Sparks]

How long after his initial arrest was it before his computer was siezed?

 

[Impureclient]

In camo , carrying a AK-47 hand gun in a park to get attention and found it. So he was looking for a situation to happen and found it.
Not only that but he posted on here and elsewhere that he had intentions to do this to instigate something. I read through half of the depo
and he comes across as what he intended to be, a troublemaker. I think there was much more against him other than his tough guy internet talk.
Case closed and now back to complain on Tacticalninjakiller.com about how the man is keeping him down. This is what happens when the line
between Call of Duty on the Xbox and real life begins to blur.

 

[Frank Ettin]

How long after his initial arrest was it before his computer was siezed?

This was a civil case. Embody was not arrested, and his computer was not seized. His forum postings were no doubt found through other investigative and discovery means.

 

[Impureclient]

Another member in here was playing along and posted this after he was detained and was ranting about it:

kwikrnu, I think you need to get an "adventure buddy". Alone you seem to be an idiot
magnet.

That is comedy gold right there,

 

[BleysAhrens]

I know this is not highroad, but that guy is a real retard...

 

[Frank Ettin]

I know this is not highroad, but that guy is a real retard...

That's another matter. And he has managed to get himself banned on pretty much every gun forum he's joined -- on Calguns just this morning -- as well as a golden retriever forum.

But the point is that he filed a suit and his postings on Internet forums helped get that suit decided against him.

 

[Nico Testosteros]

Got himself banned on a forum about golden retrievers? Real winner .

 

[Kleanbore]

Well, this should enlighten some of the doubters.

Before the digital age I saw stacks of memoranda gathered in response to criminal and civil subpoenas, topped by reports that listed and cross referenced excerpts that the attorneys thought relevant and important. That can get one's adrenaline pumping, depending upon the implications. What you see is undeniable evidence, sorted, distilled, and powerful.

Later on, I saw the same kind of thing gathered from the medium of email.

I've seen bits in the news about investigations and trials that depended in part upon posts in social networks, right here in town and in other jurisdictions.

But though I knew of the possibility, to actually see a long list of statements taken directly from THR postings and set out out in chronological order by themselves for use in a legal proceeding is a new one for me.

It has long been the case that anything relevant to a civil suit, or to a criminal investigation or trial, can be brought to bear unless it was originally created under attorney-client privilege. What has changed, I think, in addition to the proliferation of such information in the digital age, is the ease with which such data can be found and retrieved.

The attachment in the OP really underscores the following from our new sticky:

First, everyone should understand that if one posts in a public forum on the Internet for anyone in the world with Internet access to read, or when one sends a company email for that matter, one can have no expectation of privacy. Second, electronic postings can be and have been traced back to the originator, authenticated, and used both to facilitate further investigations and as evidence.

Thanks, fiddletown, for finding this and sharing it with us.

 

[Kliegl]

Yeah, the days of the internet being free are done. The government has caught up with it. Gone are the days of anonymous posting, software freely exchanged, and everyone on there being somewhat intelligent in the technical area.

Now every woman is a man, and every child is an FBI agent.

Technically, the way you can track it is that you have a dynamic IP address from your ISP, which, even though it's dynamic, doesn't change all that much, if ever. Then the law will go to the company hosting the forum, and demand the IP addresses of the users. If the company has no guts, they give the entire list over, and violate everyone's privacy. If they have SOME guts, they give just the one IP address over. If that matches the IP address of the guy they want (which they go to the ISP for, and they always cave on that one) then they can prove that someone at that residence DID type those things.

The one good thing about it is that the people who "do the internet for a living" can always figure out ways to keep ahead of things. Now, I'm just a simple engineer, not an IT guy, but even I know proxies.

 

[Kleanbore]

Posted by Kliegle: If that matches the IP address of the guy they want (which they go to the ISP for, and they always cave on that one)...

I'm not sure that it is proper to characterize complying with a court order as "caving".

I do hope that the example posted by fiddletown provides a greater appreciation of the fact that the what people post is neither private nor anonymous.

The actions and communications that ultimately led to the case at hand have been discussed here before, and many of us have seen the posts in question before while logged in to THR.

Seeing them recovered, collated and set forth in response to a court order for purposes of a legal proceeding should heighten our awareness of the issue.

 

[cbrgator]

If he hadn't posted about his misadventures in such a way that he could be identified by someone familiar with his actual conduct, how would anybody have known that he was Kwikrnu?

If I was arrested and some investigator or attorney was viewing this forum, unless I have divulged information specific enough to identify myself to a person who knows me personally, or at least knows of my actions in the real world, how would anyone know I am cbrgator?

 

[Kleanbore]

Posted by cbrgator: If I was arrested and some investigator or attorney was viewing this forum, unless I have divulged information specific enough to identify myself to a person who knows me personally, or at least knows of my actions in the real world, how would anyone know I am cbrgator?

Are you simply interested in finding out something about the techniques, or are you under the impression that they will not know that?

If you read what fiddletown posted about the example at hand, Mr. Embody was served with a court order demanding that he provide a list of all of the user names that he had used on various fora.

He complied; his alternative was to be found in contempt of court.

Wisely, he said that there may have been others that he could not remember.

It may well be that there are several other ways.

The subpoena part of it is not new. People have been instructed to supply information regarding aliases, bank accounts, investment accounts, job titles, telephone numbers, home and business addresses, post office box numbers, and so on and so on for a very long time indeed.

Again, what is new is how much more easily evidence can be retrieved. What once required a lot of leg work, telephone calls, and interviews can now be done with key strokes.

And once again, what is important to understand here is, this stuff is neither private nor anonymous.

 

[cbrgator]

Are you simply interested in finding out something about the techniques, or are you under the impression that they will not know that?

If you read what fiddletown posted about the example at hand, Mr. Embody was served with a court order demanding that he provide a list of all of the user names that he had used on various fora.

He complied; his alternative was to be found in contempt of court.

I am not looking for, nor hiding from anyone. I was merely curious.

His case is unique in that he posted numerous times and in great detail about his actions, which would have made him readily identifiable to anyone familiar with him in the real world.

But what I am asking about, purely hypothetically, is what about someone else who only posted generic comments which would not readily identify him, and they failed to comply with a subpoena. How would the people looking for that information find it on their own?

I am proficient in a computer's normal uses but I don't know that much about the underlying technology. I am just curious as to how somebody could find that information themselves without demanding he turn it over. It seems like that would be difficult, but obviously there is a lot I don't know.

 

[Frank Ettin]

...Then the law will go to the company hosting the forum, and demand the IP addresses of the users. If the company has no guts, they give the entire list over,...

It's not a matter of "guts." The guy hosting the forum doesn't have a dog in your fight. If you'd really think he'd put up with a bunch of legal hassles and expense to keep your information secret, you're deluding yourself.

...His case is unique in that he posted numerous times and in great detail about his actions, which would have made him readily identifiable to anyone familiar with him in the real world....

I'm not sure how unique Embody's situation in that regard really is. A lot of folks on various boards post a lot of information. Maybe it's theoretically possible for someone to have covered his tracks sufficiently. But who wants to count on his having done so?

I've seen some smart, IT-savvy private investigators find out a lot starting with relatively little. It's often a matter of one little bit of information leading to another little bit of information leading to yet another bit of information, etc., until one has a complete and detailed picture. Remember, with one screen name on one board, a subpoena gets me one or more email addresses and one or more IP addresses; and that's a good start. I can't do it myself, but I have some good ideas about who to call to find someone who can do it for me.

...they failed to comply with a subpoena...

Attempting to thwart discovery is a high risk enterprise. The other side has a variety of remedies if your actions are found out. And if you have legal counsel, don't expect him to help you; that would be a good way for him to lose his license and livelihood.

Will the other side find out? Would you want to count on him not finding out?

The way it works in investigation and litigation, civil or criminal, is that you gather an enormous amount of information and you review and analyze that information closely. You use that information to suggest further questions. And you look for inconsistencies and probe those inconsistencies.

I've seen some pretty smart and devious people tripped up through steady, detailed and relentless probing.

 

[Kliegl]

Sorry, Kleanboree, should have clarified. They should need a warrant to get that info, but oftentimes, the ISPs just give it up freely. These are the same companies that monitor what you download...it's supposed to be private, like a phone call, but they don't get that.

Also, I believe you can take the Fifth on giving up information. Not sure though.

 

[Frank Ettin]

...They should need a warrant to get that info, but oftentimes, the ISPs just give it up freely...

Or a subpoena. There's no warrant issued in a civil case. And a warrant, in a criminal case, or a subpoena in a civil case, isn't all that hard to get.

...These are the same companies that monitor what you download...it's supposed to be private,...

Why do you think that information is supposed to be private?

...I believe you can take the Fifth on giving up information...

Nope, you may not claim the Fifth Amendment privilege against self-incrimination with respect to information you have voluntarily communicate to someone else, not does it apply in a civil matter.

 

[shiftyer1]

What it boils down to is that computers and the internet are very powerful tools. I've seen some talented people do very amazing things with a computer that the general person doesn't even know is possible. If you post it and someone wants to find it....they will.

 

[Jim K]

Let's be realistic, guys. Posting on an internet forum is not like yakking with your buds in the rec room over some brews. It is more like going on Larry King Live with a megaphone. Millions of people can potentially read this very post (although the sponsor would probably be happy with a few hundred). And finding someone is not hard at all even without a warrant for the site owner.

Anyone who thinks the "privacy" of someone like the "gentleman" in Norway will be respected better think again.

Jim

 

[9mmepiphany]

it's supposed to be private, like a phone call, but they don't get that.

Also, I believe you can take the Fifth on giving up information. Not sure though.

While you may expect that it is private, there really is no legal expectation of privacy on the internet.

As already stated, there are no 5th Amendment protections in a civil case, there is no such thing as self incrimination as there is not allegation of a crime...only wrong doing/action

 

[Owen Sparks]

If for whatever reason you shot an intruder in a non-CD state and were cleared of any criminal wrong doing, would you not have plenty of time to move your computer a friend or relitives house if you thought you might be sued? It is not a crime to "loan" a computer to your brother is it? Besides, if you got it off the property before the suit was filed you did not know you were going to be sued. Nothing illegal there is it? And even if it is how can they find it if you refuse to talk or claim it crashed and you threw it in the trash? This whole thing sounds far fetched to me.

 

[Kliegl]

There's no legal expectation of privacy on the internet YET.

I'm sure most of you, including me, are too young to remember party lines, but, once the phone got going, it became a matter of poor manners, then law, for Mabel the operator to listen in on your phone calls.

Same thing with ISPs and the internet. I have a right to my privacy, the Bill of Rights is not waived at my router, nor is it waived behind the steering wheel of my vehicle, nor is it waived at a security checkpoint in an airport. As soon as citizens get riled enough, it will be changed; the government only has the powers we let it have. Anyone who accepts a lack of privacy on the internet as ok and fine is part of the problem.

 

[Frank Ettin]

If for whatever reason you shot an intruder in a non-CD state and were cleared of any criminal wrong doing, would you not have plenty of time to move your computer a friend or relitives house if you thought you might be sued? It is not a crime to "loan" a computer to your brother is it? Besides, if you got it off the property before the suit was filed you did not know you were going to be sued. Nothing illegal there is it? And even if it is how can they find it if you refuse to talk or claim it crashed and you threw it in the trash? ...

And maybe Perry Mason will rise from the grave to defend you. Whatever.

Everyone has an angle. But if people were as good at covering things up as they often seem to think they are, no one would be in jail; and no one would lose lawsuits.

There are often many roads to information. A lot of information on your computer is available elsewhere as well. People say things, even if you think they won't or if they don't intend to. People have a way of saying the wrong things at the wrong times, especially if questions are asked repeatedly in different ways. And most people aren't as good at lying as they think they are.

I've been a part of a number of investigations (involving both civil and criminal matters) and have seen this sort of thing in real life. The art of investigation includes finding out things people don't want you to know.

...I have a right to my privacy, the Bill of Rights is not waived at my router, ...

Would you care to show us exactly where in the Bill of Rights it describes a right of privacy?

In any case, things are as they are. If you think that someday there will be laws recognizing a greater measure of Internet privacy than currently exists, no one can stop you from thinking that. But what do you plan to do in the meantime?

Things may, or may not, be different in the future. But we're currently living in the here and now.

 

[Cop Bob]

Maybe the thread should be titled......

In this morons case..Instead of being titled: "Legal Considerations of Posting on the Internet"

Maybe it should be the "Legal Dangers of Being Stupid on a Global Level"

Rule #1: Nothing on the internet is private..

Rule #2: Nothing on the internet is private..

"Stupid is as stupid does"... Forrest Gump

"If it hurts when you do that... Don't Do That" CopBob

 

[Kleanbore]

Just a thought here.

It seems to me that there are two aspects to the discussion; one concerns privacy and anonymity, and the second concerns retrievability and verifiability.

Though the subject of privacy has been mentioned, we have really been discussing the second aspect, which comes into play in the case of legal proceedings. If a court decides that there is cause to look for something in the course of criminal investigations or criminal or civil legal proceedings, an assumption of a right to privacy is not really the main issue. The take-away points are (1) the fact that if a request for information has been duly authorized, that request carries with it the force of a court order, and (2) that there are ways that the information can be found, verified, and tied to the originator.

The case cited by fiddletown is an eye-opening example of that.

A number of posts on a related thread questioned (2) above, and a couple of posts there have brushed on the "hows" and possible countermeasures. I really do not think that it is fruitful to delve further into the methods and techniques here on THR. It is sufficient to know that methods can be and have been successfully applied. Should one want to find out more about the details, there are other places to look.

The first aspect, which is about privacy and anonymity, can also be very important to our members. While it is not really relevant to the objectives of THR per se, I think we all should understand that if one is applying for a job or for admittance to an educational institution, or if one is under consideration for a promotion, or should one decide to seek public office, any adverse information that becomes known about that person can have a devastating impact upon his or her prospects. And more often than the people involved would like, things seem to have a way of becoming known.

I mention this because it can apply to any of our members; we do not all confine our digital transmittals to THR. One of our members recently sent me a PM about some rather scary incidents that have occurred in his profession.

The fact that that kind of thing happens certainly does not mean that it is right, but it is happening. Whether there is any real risk regarding posts on THR, I do not know, but I advise against testing it too rigorously.

The fact is, once one has hit "send", the electrons are out there, and they do not self destruct.

When I was in the corporate world, we were advised to consider each email message we composed in the light of how it might be perceived if it ended up on the first page of the New York Times. And do you know what? Some of them did.

I do hope this proves helpful.

As the saying goes, let's be careful out there.