Why We Advocated For A Convicted Forger

We recently took the unusual step of advocating for an admitted forger by way of submitting an amicus curiae brief to the court prior to the sentencing phase. If you closely followed the news around online reputation management issues, you may have heard of the jewelry company CEO who was caught forging court orders in order to submit them to Google in order to get negative web contents deindexed from Google.

Michael Arnstein – CEO of Jewelry Company Attacked by Extortionist

A number of news and commentary sites posted pieces on this case, but the majority of articles were quite shallow and did not scratch the surface to reveal the egregious string of tragic events that lead up to the CEO pleading guilty to forging a court document.

Backstory

The short version of the story is that this third-generation jewelry company had outsourced its website development to a vendor in India. At some point after their ecommerce jewelry catalog was selling products effectively, the company decided to sever the relationship with the overseas development contractor. However, the contractor then began to try to keep this from happening, and then moved on to deploying serious attacks upon the jewelry company.

The unethical contractor stole one of the company’s backup domain names

and set up a website designed to harm their reputation. They also sabotaged the website, changing prices of products, deleting photos, executed through backdoor access. They also took a copy of the database information and emailed customers to tell them that the jewelry company had compromised their credit card information. They also executed a click attack upon the company’s search engine ads (each click costs money), running up their costs without bringing in sales. And, they deployed numbers of false complaints and negative reviews throughout the internet to harm the company. The malicious attacker attempted to blackmail the company, offering to desist attacking them in return for a large amount of money.

Naturally, the jewelry company attempted to enlist the help of policing agencies and government authorities, but ultimately this was ineffective since U.S. authorities could not achieve extradition in order to bring the responsible party(s) to justice.

The jewelry CEO eventually gave up and set up an agreement to make monthly payments to the extortionist in return for the attacks stopping. Based upon this agreement, the jewelry company’s attorneys were able to sue in court to obtain a default judgment, legally declaring the reputation-damaging materials to be fraudulent and defamatory. They sent a copy of the court order to Google, petitioning the search engine to remove the listed items.

However, the search engine delayed past the point where any amended court order could be obtained without initiating a new, separate court case. Google removed some of the URLs requested, but not others.

Having been sapped by the depredations of the extortionist, the jewelry company and its CEO were now short on funds and could not readily afford further rounds of lawsuits. Tipped by bad advice, the CEO began to make convincing copies of the court order, changing the date and adding in further URLs in order to submit more removal requests to Google. Google became aware of the fraud, and alerted the Justice Department which then arrested the CEO and charged him with forging a judge’s signature.

The CEO plead guilty to the charges.

Why We Advocated

Here’s the deal: This entire situation really should not have occurred.

Online defamation victims — whether they are individuals, companies or both — ought to be able to get relief from their attackers, period.

Yes, the overseas contractor is the one who committed the crime, but he was and is essentially operating outside of our legal system, and we’re unable to reach him. BUT, the attacker made use of publishing systems to execute his attacks on this little family company. Those “publishing systems” include the major search engines of Google and Microsoft’s Bing, as well as online reviews websites like Yelp, and also websites that help foment false complaints against companies, such as Ripoff Report. If those companies did not facilitate these sorts of attacks so easily, then it could be more difficult for false items to impact companies so visibly.

In the offline world, publishers can be partly responsible for the materials from authors that they publish. They can be sometimes compelled to help remove defamation, and assist victims by trying to retrieve content that has been published. (Yes, I’m aware that in the online world some people would say that search engines may be categorized as merely “distributors” and therefore should not be held liable for content passing through them. I would answer that online is a very different paradigm that mixes the categories by large degree — there is no perfect one-to-one metaphor to match up offline categories with online ones, and the law must evolve to treat online similarly to imperfect equivalents from the offline world in some instances like this.)

In the online world, publishers/distributors of third-party content cannot be made legally liable for the stuff that others post via their services. (EXCEPT that they are liable if it’s copyright-infringing, or if it involves sex trafficking.)

However, the law clearly needs to be modified. The platforms used to launch and distribute defamation attacks need to be made liable, since defamation is not supposed to be protected language. Having defamatory content appearing prominently can have serious impact upon companies and individuals.

The large online search engines, social media sites, reviews sites and other forums need to be made liable in instances where content is extremely harassing or defamatory. It would be nice if a victim could simply petition those platforms directly, instead of having to go through an expensive court process in order to obtain relief. But, at the very least, if one has a court order declaring some content to be false and defamatory, the companies hosting that content should be compelled to remove it in a timely manner.

Google has been good to often voluntarily remove defamation when presented with court orders, but even they are not always removing things when they disagree with the court orders. Further, the nature of the internet is such that content often gets replicated in many places, and Google could easily go a lot further in eliminating copies without requiring victims to perform sophisticated monitoring and reporting of the content to them. It’s really time for defamation relief to hit the modern age, and for these “innovative” companies to put some of their best and brightest to work for a few minutes on helping suppress one of the toxic mechanisms that is dogging the internet.

If more support mechanisms were in place, then the CEO of the jewelry company could have obtained some relief from his attacker more easily, and he likely would not have felt the desparation that online defamation victims experience when they cannot seem to obtain relief in justice. In an internet less hostile to defamation victims, he could have presented one court order to Google and then no more fake hostile content would be appearing when his company’s name was searched upon.

For these reasons, we wrote an amicus brief to the court, urging for leniency. The text of the brief is included below. (One minor section has been redacted in order to not interfere with a current, ongoing investigation.)

The CEO absolutely should not have copied and modified his own court orders.

However, the desparation to return to a normal, fairer life is common to many of the defamation victims we have worked with. If your family business was unfairly attacked, you might go to a lot of lengths to try to halt the attack and reverse the damage. Keep in mind that this attack had multiple victims, including the CEO’s family, the business’s employees, and even consumers who were denied a potential vendor when they were comparing companies with similar products.

It’s Not Over Yet

While the U.S. Justice Department’s prosecutor crowed over the “victory” of convicting a victim of criminals that the same Justice Department was impotent to prosecute, the true story was lost in the gloating soundbite. The conviction and sentence are beating up a man who is only guilty of repeatedly pushing to get Google to give him what the original court order intended to provide: removal of false defamation levied against his company.

The judge presided over the CEO’s sentencing did listen to the character witnesses as well as the amicus brief we provided, and he did show significant leniency to the CEO, deciding upon a prison sentence that was three months less than the low end of the range of time that the prosecution pushed-for. The judge reportedly felt it was necessary to require some time in jail in order to make a clear deterrent for the forgery of court documents.

While this case is an extreme one, the plight of defamation victims is all too common. Many thousands of people are enduring impacts upon their personal lives, relationships, careers and business income due to false negative statements made about them online. All of these people really need relief that is frequently outside their reach.

The law involved is Section 230 of the Communciations Decency Act which immunizes many online companies from being compelled to do anything about the content published through their services. Human decency cries out for a change to this law, enabling defamation victims to get highly visible negative contents to be removed permanently and comprehensively.

Amicus Brief – United State… by on Scribd