EFF reprimands Judge Hurley and APEX for internet censorship

EFF reprimands Judge Hurley and APEX for internet censorship

Date: Sunday, January 10, 2010 10:31 PM


<<<<< JOB DESTRUCTION NEWSLETTER No. 2071 -- 1/10/2010 >>>>>


The Electronic Frontier Foundation (EFF) weighed in on the APEX vs Tunnel Rat
case. They strongly criticized Judge James Hurley for issuing orders to shut
down three websites and to reveal the identities of the webmasters. On the EFF
website a page titled: "Order to Shut Down Websites Critical of Apex
Technology Group is Dangerous and Wrong". provides a strong opening paragraph
that leaves no doubt where the problem lies:

Over the holidays, a New Jersey court issued an order requiring
upstream providers to shut down three anti-H1-B websites that
is deeply dangerous and wrong. The order not only tries to
remove allegedly defamatory messages but also requires a
complete shutdown of the websites and even purports to require
the cooperation of the hosting companies and domain registrars
of the websites to do so and for other service providers to
identify anonymous speakers.

Thoughtful arguments made on that EFF page could be used as material for
anyone who is interested in writing a letter of complaint against the Superior
Court of New Jersey and Judge James Hurley [link below].

The EFF probably issued the statement in order to offer APEX and its
president, Sarvesh Kumar Dharayan, a chance to save face by backing off before
legal action is taken. APEX and Dharayan would do well to heed the warning
because the EFF has an impressive list of victories in cases that are very
similar to this one. Perhaps it s a coincidence but a recent victory involved
another case in New Jersey (What s with these NJ courts?). In this one,
another New Jersey judge tried to trample on the 1st Amendment to free speech
in the case of Manalapan v. Moskovitz:

One blogger who was particularly critical of the Township, of this
and other decisions, was Blogspot blogger "datruthsquad".
Inexplicably, attorneys for the Township issued a subpoena to
Google (owner of Blogspot) demanding that the identity of this
anonymous critic be turned over, along with datruthsquad s contact
information, blog drafts, e-mails, and "any and all information
related to the blog."

What s happens next is difficult to predict. Kurt Opsahl, a senior staff
attorney at EFF, didn t give a hint whether EFF would get further involved in
this case if APEX continues their folly. Patrick Thibodeau of Computerworld
asked Kurt Opsahl what the next step would be for EFF but there was no clear
commitment if EFF would be willing to escalate the case by taking legal action
if APEX continues their attack on the Constitution of the USA.

"The order has troubling implications about the longstanding
constitutional right to anonymous speech," Opsahl said in his
analysis.

In an interview, he said he doesn t know if the EFF will get
directly involved in the case. "It is something that is definitely
of interest, but whether we would take it up as a case remains to
be seen," Opsahl said.


Hopefully Judge James P. Hurley will do the honorable thing before his
retirement in February.

NOTE: The Programmer s Guild has an archive of legal documents pertaining to
the APEX case for those who want to do further research.



IMPORTANT LINKS:


http://blog.vdare.com/archives/2010/01/10/eff-reprimands-judge-hurley-and-apex-for-internet-censorship/
web version of newsletter


http://www.eff.org/
Electronic Frontier Foundation


http://www.vdare.com/sanchez/091227_tunnel_rat.htm
H-1B Bodyshop vs. U.S. First Amendment: The Case Of "Tunnel Rat"


http://blog.vdare.com/archives/2010/01/04/apex-vs-john-does/
APEX vs John Does


http://www.judiciary.state.nj.us/acjc/how_to_file_complaint.htm
How to File Complaint About a New Jersey Judge


http://www.mcbalaw.com/associations/7471/files/hurleyretirement_feb10.pdf
Hon. James Hurley retirement party invitation


http://www.programmersguild.org/apex/
Archive of court documents


ARTICLES FEATURED BELOW:

http://www.eff.org/deeplinks/2010/01/order-shut-down-websites-critical-apex-technology-
Order to Shut Down Websites Critical of Apex Technology Group is Dangerous and
Wrong Legal Analysis by Kurt Opsahl


http://www.computerworld.com/s/article/9143559/Court_shut_down_of_H_1B_sites_deeply_dangerous_
Court shut-down of H-1B sites 'deeply dangerous'
EFF warns of broader implications to state court's order to national Web
hosting services


+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.eff.org/deeplinks/2010/01/order-shut-down-websites-critical-apex-technology-

January 7th, 2010
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Down Websites Critical of Apex Technology Group is Dangerous and Wrong Legal
Analysis by Kurt Opsahl


Over the holidays, a New Jersey court issued an order requiring upstream
providers to shut down three anti-H1-B websites that is deeply dangerous and
wrong. The order not only tries to remove allegedly defamatory messages but
also requires a complete shutdown of the websites and even purports to require
the cooperation of the hosting companies and domain registrars of the websites
to do so and for other service providers to identify anonymous speakers.

The plaintiff in the lawsuit, Apex Technology Group, is a staffing and
consulting services company. Apex describes itself as "delivering
sophisticated technology-enabled solutions to maximize complex business
needs." The dispute apparently started when someone uploaded a document
purporting to be an Apex employment agreement to docstoc.com, and noted
several terms the poster considered unfair to H1-B workers (copy of original
post). The H-1B is a non-immigrant visa that allows U.S. employers to
temporarily employ foreign workers in specialty occupations. The defendant
websites allegedly linked to this post and document, and Apex demanded its
removal. Curiously, Apex simultaneously claimed that the document defamed them
and that they were its copyright owners. This is unusual, since people rarely
defame themselves with their own copyrighted works.

The document and the surrounding controversy prompted further heated
discussion in which the websites allegedly accused Apex of being a "bodyshop"
that engaged in bad practices while employing H1-B visa workers from India.
According to papers Apex filed with the court, at least one website claimed
that its members provided evidence of widespread visa and labor fraud by Apex,
which they apparently reported to the government. Apex denies any wrongdoing.

Rather than responding to the substance of the criticisms, Apex took the
matter to court to try to remove them from the internet. On December 23, Judge
James Hurley issued a prior restraint against endh1b.com, itgrunt.com and
guestworkerfraud.com, ordering the websites to remove all postings about Apex
Technology Group or its President, Sarvesh Kumar Dharayan, until further order
of the court. The court also ordered the sites ISPs/domain name registrars
(DiscountASP.NET, GoDaddy.com, Domains By Proxy and Network
Solutions) to stop hosting and "immediately shut down and disable" the
websites. Finally, the order requires the ISPs to provide identity information
about their customers.

This order dangerously overreaches. By restricting access to entire websites,
it places a prior restraint on all of the speech on the websites, even if that
speech is unrelated to Apex or Mr. Dharayan. Imagine if a court could order
Amazon.com or Yelp.com shut down because of a disparaging review of a single
product.

Prior restraints are improper in cases such as this due to the obvious First
Amendment problems they pose. Courts limit such injunction to the rare
circumstances when (1) the activity to be restrained poses either a clear and
present danger or a serious and imminent threat to a protected competing
interest, (2) the order is narrowly drawn and (3) less restrictive
alternatives are not available. Instead, damages are the preferred sanction
for defamatory speech. Here, Apex says it is not even seeking damages. And
even if Apex had a valid defamation claim, the wholesale shutdown of a website
is not a narrow remedy for a few allegedly defamatory postings.

The New Jersey court s overreaching order shutting down these websites also is
inconsistent with federal law to the extent that it holds service providers to
account for user posts. Among other claims, Apex complains about several
postings by a anonymous posters that were "allowed to remain public" on Apex s
comment sections. Yet, section 230 of the federal Communications Decency Act
protects websites that host content posted by users, providing immunity for a
website from state law claims (like
defamation) based on the publication of "information provided by another
information content provider."

Additionally, the order has troubling implications about the longstanding
constitutional right to anonymous speech. In fact, New Jersey was one of the
first jurisdictions to apply the right to anonymous speech to the Internet,
rendering a decision that has been widely followed over the last decade.
Nevertheless, the court ordered Comcast, Yahoo and Facebook to provide
identifying information on the anonymous speakers despite the fact that
neither the speakers nor the service providers where present at the hearing.
Comcast, which is covered by the Cable Privacy Act, was to provide
14 days for the user to challenge the order, while Yahoo and Facebook were
ordered to provide the information in 5 days (over the Christmas weekend),
without a provision for challenging the order. Facebook has stood up to the
order and has not provided the requested information.

Ordinarily, in order to safeguard this First Amendment right, a litigant
seeking to unmask an anonymous speaker would need to obtain a subpoena from an
appropriate court (i.e. Santa Clara county in California for Yahoo) and serve
the service provider. Then the service provider would provide adequate notice
to the user, and the user could move to quash the subpoena, asserting whatever
defenses the user may have. These procedures are vital to protecting speech
rights, and it was inappropriate and unnecessary for the New Jersey court to
short-cut that process, especially over a holiday period when its is all the
more difficult to obtain emergency legal assistance.

Finally, it was wrong for the court to require the upstream providers to
unplug the website. Under New Jersey law, injunctions should only reach those
who engage in "active concert or participation" with the person who acted
wrongly. There s no indication that the upstream providers or domain name
registrars for the websites even knew about the postings in question, much
less acted in "active concert" with them. Requiring domain name registrars to
turn off websites in litigation about the website is a tactic that has already
been rejected.

The New Jersey court order is therefore wrong in at least four ways: (1) it
creates a prior restraint that takes down too much speech, (2) it wrongly
punishes websites for the speech of their commenters, (3) it wrongly requires
the identification of anonymous speakers without sufficient opportunity to
challenge the disclosure, and (4) it wrongly enlists out-of-jurisdiction
upstream providers who did not act in concert with the websites in taking down
speech. We hope the parties and the upstream and domain name hosts involved
will seek to overturn it.

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.computerworld.com/s/article/9143559/Court_shut_down_of_H_1B_sites_deeply_dangerous_

Court shut-down of H-1B sites 'deeply dangerous'
EFF warns of broader implications to state court's order to national Web
hosting services Patrick Thibodeau


January 8, 2010 (Computerworld) A New Jersey judge's order issued two days
before Christmas to shut down three anti-H-1B visa Web sites is drawing sharp
criticism from an attorney at the Electronic Frontier Foundation.

Kurt Opsahl, a senior staff attorney at EFF, a San Francisco-based
organization that has litigated on issues of bloggers' rights, anonymity, and
file sharing among others, believes the court order to shut down the Web sites
is "deeply dangerous and wrong," in part, because it was aimed at the entire
Web sites and not just the posts or comments in question.

"Imagine if a court could order Amazon.com or Yelp.com shut down because of a
disparaging review of a single product," wrote Opsahl, in an analysis posted
on the EFF's Web site.

The case stems from a lawsuit by Apex Technology Group Inc., an Edison, NJ IT
services firm, over comments and postings that appeared on several blogs it
claims defamed the company. This all may have began sometime this summer when
an Apex employment contract affecting H-1B employees appeared on a Web site
unrelated to those named in the case.

The contract was removed, but eventually comments and posts complaining about
Apex appeared on multiple sites, including ITgrunt.com, EndH1B.com, and
GuestWorkerFraud.com, the three sites named in the lawsuit.

Apex is claiming the accusations made on those sites included wrong
information that was defamatory and hurting business. It demanded the
information be removed and the posters' identity be revealed, which was
evidently refused by the site operators.

In response to Apex's lawsuit, Middlesex County Superior Court Judge James
Hurley ordered domain registrars and hosting providers, including GoDaddy,
Network Solutions, Comcast Cable Communications Inc., DiscountASP.Net, to
disable three sites. Facebook was also ordered to pull a page down from
ITgrunt. ITgrunt.com, EndH1B.com are both offline, but GuestWorkerFraud.com
remains up.

"The order has troubling implications about the longstanding constitutional
right to anonymous speech," Opsahl said in his analysis.

In an interview, he said he doesn't know if the EFF will get directly involved
in the case. "It is something that is definitely of interest, but whether we
would take it up as a case remains to be seen," Opsahl said.

Ordinarily, a litigant seeking to unmask an anonymous speaker would have to
obtain a subpoena in the service provider's state, but the New Jersey court
short-cut that process, especially over a holiday period when it is all the
more difficult to obtain emergency legal assistance," he wrote.

But Patrick Papalia, an attorney at Herten Burstein in New York who
representing Apex, disagreed with the Opsahl's assessment and said legal
standards were met, and that the case record was clear on it. He said the
postings were clearly false, including one that claimed the opponents had
already won the case.

Papalia said Apex isn't pursuing the case for financial reward, and just wants
to stop the false postings about the company. He said it's clear that the
poster "was not willing to abide by the rules and the law."

Opponents see broader implications. Donna Conroy, who heads Bright Future
Jobs, a Chicago-based group that is seeking H-1B reform, said that if the
court order is allowed to stand it "does embolden companies to use this
stealth technique" to shut Web sites, and believes the lawsuit "is about
quashing any nascent movement" to organize on the issue.


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