.
.
.
On a personal note, I’ve been trying to stay out of the business of political commentary. It’s exhausting. One need not go beyond Anaheim to see just how difficult it is to get and keep good folks in office. The ability of unprincipled people to profit by injecting their business interests into the guaranteed revenue stream of taxation is just too overwhelming. One of us “ankle-biters” dedicating two or three hours a week will never overcome a political hack who makes $50/hr to make Harry Sidhu look like not an assclown a natural leader, fit for unchallenged autocracy over OC’s biggest city!
In today’s era of two second impressions driving public opinion, investing my spare time returns only frustration. The needle will not move. There are just too many people with real money to lose. If Sidhu can put on an olive drab jumpsuit and ride in the back of a Humvee during a veteran’s parade after telling the Board of Supervisors he wants to put county clerk offices in near-earth orbit (both true) and still get elected, this is all a waste of time.
Moreover, it now seems pretty darn clear that blogging will inevitably get me sued. I have no desire to put my family at risk because I used a document to support an argument.
Yet, try as I might, my conscience keeps pulling me back in. Some sins are just too big to be swept under the rug of apathy and resentment. I started writing seven years ago because the beating of an unarmed-mentally-disabled-man to death was one of those sins. The road to that moment was paved by so many, including myself, who let little liberties die without making a sound. A little homeless roust here, a little abuse of authority to search there, that’s how Joseph Wolfe and Manny Ramos got started. The idea that Kelly Thomas’s death appeared out of the blue and that there weren’t warning signs isn’t just naive, it’s willful ignorance of the crystal clear truth: Bad apples rot from disease over time, not overnight.
Maybe this is all just wasted time, but at least it’s cheaper than golf. So, once more into the breech good friends. It’s our time to waste, but hopefully this is my last one. Risks are just too high and the willingness to retaliate against journalists and opinion makers seems quite real.
I served as a Commissioner in the City of Fullerton for over six years. In that time, I witnessed officers from the City Attorney do some really stupid things. Of course, I’ve also seen competent and courteous work from the same office, but in the case of legal affairs, “good” some of the time doesn’t excuse piss poor or just plain EVIL work at others. Got an attorney doing evil things? Ain’t nobody got time for that.
Evil? Strong word, right? I shouldn’t be casually tossing that around. Evil. That really means something.
[To the attorneys I’ve worked with at Jones and Mayer that have done competent and courteous work, and you should know who you are, I’m sorry for what’s below. Two members of your staff and your boss negatively impact your reputation, which you don’t deserve, but you need to find an alternative legal house in which to reside.]
“Having a harmful effect on people. Morally bad.” — Oxford
Not much there to chew on. Man shoots puppy for sport. OK, evil. That hardly feels like critical thought.
“There is no possible source of evil except good.” — St. Augustine
Oh, that’s better. Much better. That’s “The road to hell is paved with good intentions” kinda stuff. Let’s take that one out for a spin:
Good: Acting to protect the privacy of your past and current employees.
Evil: Labeling two citizens in your town as “criminals” because they aired your dirty laundry that you created and put out for the whole world to see.
Good: Following the direction of your City Council.
Evil: Breaking the law to follow the direction of your City Council.
Good: Communicating to the public who you’re suing and why.
Evil: Purposely suing people to get another party fired.
See what I mean about Augustine? Evil isn’t always as simple as running around with a hatchet trying to chop people’s arms off. Evil is vaulting ambition, Lady MacBeth kind of stuff. Evil is win-at-all-costs. Evil is trying to fix a mistake by leveraging pride against ignorance. Evil is justifying wrecking lives because you’ve convinced yourself of your own righteousness. Evil is compounding one bad decision with another because it’s easier to pass blame than it is to ask for forgiveness. Ladies and gents, that’s evil!
I don’t want to run around the internet calling people evil. It doesn’t exactly feel comfortable. Fortunately, I’m not in the business of wrecking lives. Those with the power to do exactly that ought to have the constitution to tolerate that label, especially when it’s true. Don’t want to be considered evil? Think that’s unfair? Great. Then don’t do evil things.
************
This past Tuesday, the City of Fullerton laid out an explanation for its lawsuit against David Curlee, Joshua Ferguson, and the Friends for Fullerton’s Future blog. Kim Barlow, deputy City Attorney, gave an update on the case, which you can view below. After listening to this trainwreck, I can’t avoid the crystal clear truth that Fullerton needs a new City Attorney. The Council should request bids immediately and also fire Jones and Mayer by the end of the year. Fullerton can’t fix potholes when it’s paying its attorney $350/hr to spout evil garbage.
Let’s break it down. Ms. Barlow?
Okay, now let’s lay this out:
Good: Acting to protect the privacy of your past and current employees.
Evil: Labeling two citizens in your town as “criminals” because they aired your dirty laundry that YOU created and put out for the whole world to see.
The argument laid out by Ms. Barlow stems from a famous case in the 1970’s known as The Pentagon Papers. The famous case makes it clear the media can publish whatever government files it receives, so long as it did not use criminal means to obtain the material. Ms. Barlow accuses Curlee and Ferguson of a federal crime for unauthorized access within Fullerton’s Dropbox Account.
What’s “unauthorized access to a Dropbox Account,” according to Ms. Barlow? Well, it’s actually pretty simple. Dropbox functions a lot like your PC. It uses an internet browser to display folders, which contain other folders or files.
Now the City’s theory is so ridiculously stupid, I have to put this into pictures.
The City provided a link to its dropbox account to Curlee, Ferguson, and others. Anyone accessing the link provided by the City would see something like this:
The City’s claim states it gave permission to someone (Curlee, Ferguson, whoever– me in this example) to open File No2 and download the contents within it. They also claim that double clicking on ANY OTHER FILE, despite the city doing absolutely nothing to impair your ability to double-click on any other file, even the one with my name on it, is a federal cyber-crime.
I’m not kidding. The City believes it’s a federal crime to double-click on a file folder that they sent you a link to view. The implied legal theory here, as I understand it, is that every single file posted to the internet requires express permission from its owner to access, and failing to secure permission before double clicking on the publically available internet is a federal crime. In this case, File No1, File No2, File No3, File No4, and File RCantorPR have the exact same security profiles and are accessible by every computer connected to the internet on the entire planet. You click, you lose, go directly to jail, do not pass GO, do not collect $200.
** NB: After drafting this Wednesday night, Joshua Ferguson posted a copy of the Reporter’s Committee On Press Freedom’s Amicus Brief, which I encourage you to read. It echos a lot of what I wrote here, but you know– it’s from an actual competent authority, which probably means something to some of you. **
Not only is this a dramatic expansion of federal cyber-crime laws, as far as I can tell it’s never been upheld by any appeals court anywhere in the world ever. (China, maybe.)
Don’t have any precedent to support your insane legal theory? Nevermind! Run around screaming CRIMINAL CRIMINAL CRIMINAL to the press and every judge you see. Say it enough, someone will believe it.
I know what you’re thinking. Nobody is seriously stupid enough to claim that browsing the internet and downloading files is a crime, particularly since that’s literally the purpose of the internet. What aren’t you telling me, Ryan? You have to have gotten something wrong.
Maybe I did get something wrong, but to me it sure looks like what the city wants you and the court to believe is that because the alleged criminals used a virtual private network to obscure their IP address, that somehow this manufactured malicious intent magically makes double clicking file available to download from anywhere in the world a crime. News flash: Virtual Private Networks (VPN) and other tools of anonymous browsing are not illegal to use. In fact, they’re recommended as basic privacy tools by PC Mag and even sold as a consumer product by Internet Security giants Norton and McAfee. Classic red herring argument.
The fact remains that browsing the public internet, even anonymously, and downloading files is legal. That’s what the internet is for. This looks and smells like garbage made up to pawn off to the public as actual real documented truth of law. It’s not, and four members of Fullerton’s City Council actually buy this theory (Gawd, I hope it’s because their attorney said they had no choice, cause this looks really poorly conceived) and are spending your tax dollars to promote it. You’re paying for this.
** From RCOPF’s Amicus: “When an entity chooses to make information available to the public on the internet, without a technical access restriction like a password, that information can legally be accessed by anyone. Were that not the case, websites could trigger criminal or civil liability by fiat, through changes in the terms of use of the website, which is exactly what the City is attempting to do here.” **
In other words, RCOPF agrees with my assertion that the Fullerton City Attorney attempts to “break the internet” by making it a real world version of Red-Light-Green-Light, except no one tells you there’s a red light and you go to federal prison if you don’t stop browsing after receiving supernatural instructions not to double-click. It’s absurd. Double-clicking is not a crime and Fullerton shouldn’t break the entire freaking internet because its City Attorney screwed up confidential files that the Council finds embarrassing.
Why are you paying for this? I understand the City wants to protect its former and current employees, that’s good, but what the City needs to do is to protect the public and employees from itself. The City Attorney clearly prefers blaming, pointing, screaming criminal, and never admitting anything to anyone.
And that my friends, is evil. That’s not even getting into the content of what’s actually been published, which is pretty horrific itself. The City Attorney signed off on all of that, too. Why isn’t Jones and Mayer’s head on the chopping block to pay for a problem they created and then made worse? Why are Fullerton taxpayers continuing to pay billable hours to this firm?
Good: Following the direction of your City Council.
Evil: BREAKING THE LAW to follow the direction of your City Council.
Ugh. Personally, I find this one even worse than Jones and Mayer’s attempt to make the intended use of the internet a federal crime. Federal Cyber Crime laws aren’t their core competency. Keeping the City compliant with state law is supposed to be.
The last time I wrote a blog post was shortly after busting Fullerton for illegally removing Bruce Whitaker and illegally appointing Ahmad Zahra to the Orange County Water District. The City violated the Brown act, blatantly, while the City Attorney sat there on the dais and did nothing. You’ll note that particular blog post is loaded with negativity, just like this one– which is why I don’t want to do this anymore. This evil garbage never stops.
This past Tuesday the City Attorney finally admitted the Council gave unanimous (really Bruce Whitaker?) direction to sue some people and a blog on September 17, 2019 in closed session. Here’s the supposed item from the agenda from that meeting.
Government Code Section 54956.9(d)(2). Super. What’s that? Well, let’s look at CA GC SS 54956.9.
“A point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency.”
Hm. That’s interesting. Significant exposure to litigation against the local agency. The Brown Act allows the Council to meet in closed session to discuss a narrow range of topics, and by this citation, the Council is only allowed to discuss anticipated litigation against Fullerton. How is initiating a lawsuit against a few people and a blog exposure to litigation against Fullerton?
Oh wait, it isn’t. It’s just that the City Attorney sucks.
The applicable GC section is actually 54956.9(d)(4).
“Based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation.”
Why is that important? Because GC section 54957.1 requires the City Attorney to “publicly report any action taken in closed session and the vote or abstention on that action of every member present when . . . (wait for it, my emphasis)
Approval given to its legal counsel to defend, or seek or refrain from seeking appellate review or relief, or to enter as an amicus curiae in any form of litigation as the result of a consultation under Section 54956.9 shall be reported in open session at the public meeting during which the closed session is held. The report shall identify, if known, the adverse party or parties and the substance of the litigation. In the case of approval given to initiate or intervene in an action, the announcement need not identify the action, the defendants, or other particulars, but shall specify that the direction to initiate or intervene in an action has been given and that the action, the defendants, and the other particulars shall, once formally commenced, be disclosed to any person upon inquiry, unless to do so would jeopardize the agency’s ability to effectuate service of process on one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage.
Why? Because you have the right to know when your City Council votes to sue someone with your tax dollars, why they’re suing, and who voted for it. Let’s take a look at the minutes for September 17, 2019.
Anyone see the required disclosure concerning initiating a lawsuit, including the vote of each Councilmember authorizing the lawsuit? Anyone? Anyone at all?
No?
No one? No one sees where the City Attorney lawfully complied with its requirements under CA Government Code Section 54957.1(a)(2)? I don’t see it either. Maybe I need my eyes checked. Maybe we all do.
Again, I know what you’re thinking. “Ryan, did the Fullerton City Attorney seriously break an actual law to initiate a lawsuit that falsely accuses other people of breaking the law? Did you just bust them for the second time this year when you’re really not even paying that much attention?”
Well, sure looks like yes and yes. In that case, Fullerton commited a crime by failing to comply with CA GC Section 54957.1(a)(2). Is there a consequence for this? Yes. Yes there is.
Assuming that’s right, the City gets no safe harbor provision under CA GC Section 54954.5 because they did not include the required information related to “Initiation of litigation pursuant to paragraph (4) of subdivision (d) of Section 54956.9.
“Blah blah blah, Ryan. Means nothing. What are those consequences? In plain language, please.”
Well, for starters, particularly since this looks like the second violation that I’ve actually caught, meaning there might be a whole lot more, the District Attorney could order all closed sessions in Fullerton to be recorded and preserved. That should happen immediately. Clearly the Fullerton City Attorney needs a freaking chaperone and it ain’t gonna be me.
Second, technically, someone could void Fullerton’s illegal action to sue someone according to 54960.1.
“The district attorney or any interested person may commence an action by mandamus or injunction for the purpose of obtaining a judicial determination that an action taken by a legislative body of a local agency in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956, or 54956.5 is null and void under this section. Nothing in this chapter shall be construed to prevent a legislative body from curing or correcting an action challenged pursuant to this section.”
Am I going to do that? No. I’m too scared Kim Barlow is going to turn my life inside-out by claiming I illegally used the internet to download code citations without the expressed written permission of the State of California and therefore I’m a criminal. What I did do is contact the City Manager, express my obvious displeasure with the City Attorney and Fullerton violating the Brown Act again, which is why the public received the information it did this past Tuesday. That was Fullerton’s attempt to cure their illegal action based on my complaint, while not admitting anything.
Was it good enough? I have no idea. Honestly, I don’t really care. What I do care about is why the City Attorney is continuing to get paid by Fullertonians. Some jackass like myself shouldn’t be schoolin’ them multiple times a year, not on case law, but on literal recitation of the code they’re required to follow. This is ridiculous. I’d imagine Todd Spitzer has plenty to do down at his new office, but if you want to give him a call and let him know what’s going on with Fullerton’s closed sessions, be my guest.
The problem here is we have absolutely no idea what was said in closed session and by whom. That’s obviously the point of closed session, but for that to work we have to have trust. The real problem is we’re left to assume the Fullerton City Council unanimously voted to sue people (again, really Bruce Whitaker?) after consideration of several options presented by their attorney. Did that occur or did the City Attorney purposely paint the Council into a box because this lawsuit attempts to shift blame from the City Attorney’s office (where it belongs) to members of the public? I dunno. Neither do you, but it sure feels like a conflict of interest to me.
In any case, let’s assume the Council ordered the City Attorney to launch a secret lawsuit to get the big bad bloggers. The City Attorney following orders is okay. The City Attorney breaking the law (sure looks like they did to me, but that’s up to Todd Spitzer) to file said secret lawsuit is evil. Again, why Fullerton taxpayers continue to tolerate billable hours from Jones and Mayer is absolutely beyond my limited comprehension.
Good: Communicating to the public who you’re suing and why
Evil: Purposely suing people to get another party fired
Alright, so, we’ve got falsely labeling people criminals to cover your own ass, and breaking the law to falsely accuse others of breaking the law, why am I adding this gem to the pile of evil garbage spewed out by Jones and Mayer?
Getting people fired because of their politics, or in this case because they made you look bad, is shooting puppies for fun kind of evil. Children deserve a home, they deserve a meal, they deserve a happy birthday. Going out into the world and purposely depriving the dependents of political opponents of sustenance is flat out always wrong. I’ve had it done to me, it sucks, and I hope there’s a special circle of hell for people who do this sort of thing.
I’ve witnessed members and close confidants of Fullerton’s City Council malign both David Curlee and Joshua Ferguson as malcontents. Maybe they are malcontents, I dunno, but it’s not a nice thing to say about someone and demonstrates appreciable bias from decision makers initiating this lawsuit. David is a pretty quiet and level-headed guy in my experience, certainly more respected in Fullerton than I am; on the other hand I’ve openly disagreed with Joshua publically, repeatedly, and sometimes with vulgarity. My experience with either of them doesn’t determine if they’ve done anything illegal or evil.
Let’s take a look at Fullerton’s original (again, filed in violation of the Brown Act) lawsuit:
I’m sorry, but who the hell is that guy in highlight? Every single time someone does an internet search on this guy, this lawsuit is going to show up, so I’m not going to add to that pile of evil garbage by typing his name into this blog post. Council did the right thing on Tuesday and removed this party from the suit on a 5-0 vote, a month after it was filed.
Are you freaking kidding me? You couldn’t call this guy before filing the suit to see what he knew and when? You had to go and make this a permanent part of his life in a lawsuit accusing people of cyber-crimes? That, that right there, that is straight up evil. It just is. That’s reckless disregard for ruining lives and a wild abuse of government authority.
This certainly begs the question of why this is here in the first place. Since the Council and their City Attorney failed to disclose their lawsuit when they voted to proceed as required by law, I have to rely on the City Attorney’s press release discussing the topic.
The City accused this dude of committing cyber-crime, then turned around a month and a half later, saying sorriez, we didn’t mean it? WOW. Ready, fire, aim much?
Turns out this individual was a (former) co-worker of Mr. Ferguson. Mr. Ferguson now no longer has a job. Given the City Council’s nearly immediate removal of this individual from the lawsuit after Mr. Ferguson had already lost his job, the City Attorney’s intent seems is highly questionable. They’d really love nothing more than to play The Grinch this holiday season? Of course, if you’re a Fullerton taxpayer, you’re bankrolling said Grinch who wants to steal Christmas from kids connected to “malcontents”. Voting to sue some guy one month and removing him the next after he signs a document supporting your case and after one of the guys you’re suing loses his job is not a good way to let the public know your intentions are true and honorable.
Why are you bankrolling these people? I honestly have no idea. I don’t think Fullerton should employ people who do things like this. This was fix-with-a-phone-call easy.
WHERE DO WE GO FROM HERE?
This is ridiculous and I don’t want to do this anymore. Running around the county screaming people you’ve labeled as “malcontents” are really criminals after violating state law and purposely trying to get people fired? Nope. None of it. I want nothing to do with any of this. It’s wrong, no one on the Council or any other body with actual authority is going to do anything about it, and it’s sickening. I don’t want to be the guy who lets little liberties die, but that task falls to Jesus Silva, Jennifer Fitzgerald, Ahmad Zahra, Bruce Whitaker, and Jan Flory. A 3800-word blog post won’t do much, and apparently I can get sued if three people get pissy. Just not worth it.
Fullerton has many, many, many problems. Nothing is ever going to get better if the City Council isn’t willing to make hard choices. Right now, what’s readily in front of them, is a giant obvious problem at the City Attorney’s Office. They need a new attorney and that firm should be in place by January 1, 2020. This kind of crap has to stop. It won’t until Fullerton gets a new attorney. In the meantime, people who are willing to openly criticize their government will become fewer and quieter. Count me as a minus one.
Unfortunately, the city councilmembers are either a) vindictive, b) lazy and stupid, c) ignorant and pusillanimous, or d) some combination of the above.
Jones has NEVER given anybody sound legal advice when it mattered. He did what his boss (the city manager) wanted. Period.
P.S. What in the world has happened to Whitaker?
VOC reports that it was NOT unanimous, but 4-1, with Whitaker dissenting.
Heh. Another boner.
Try reading the article again “counselor.”
You’re being quite vague. As what you think you’ve discovered may be a minor and immaterial point, I see no reason to go on your snipe hunt.
Sorry. I meant to say “Wrong. Again.”
P.P.S. Apparently the Appeals Court has put a stay on the prior restraint issued by the lower court’s know-nothing judge.
That they did.
I imagine there’s more to come.
Yeah, Ryan told me that earlier today. The problem is that that’s impossible. Based on what I heard, the court gave signs that it was going to decide in favor of FFFF, but gave the city ten days to file a supplemental brief. During that time, FFFF is STILL under prior constraint when it comes to these documents.. I don’t think that that’s such a big deal — this isn’t a quickly unfolding story — and FFFF can survive the stay pretty much unharmed. But it hasn’t won the case yet.
I don’t know if the court made a dispositive ruling that can be appealed, but if so then it’s also giving Fullerton some time to appeal that ruling to the California Supreme Court, because once the TRO is lifted then FFFF can publish and render everything but the damages moot.
Yeah, no it isn’t.
STAY means stay, Dr D.
What is being stayed, Ryan? In effect, it is their ability to publish that is being “stayed” — i.e., restrained prior to publishing.
It’s not a huge deal, but it is literally still “prior restraint” — now with (temporary) judicial approval. Call it a draw, for now. After the ten days, it may be a win. Or not.
The order to prevent publishing has been stayed.
Still wrong.
So they can publish them right now if they want.
Why haven’t they, then?
Wrong.
I’ll ask you the same thing I asked Ryan, with less hope for a useful answer:
If they can thus publish them right now if they want, and if they’re so sure about the law, why haven’t they published, then?
You could ask.
This question is pertinent to nothing and evidence of nothing. Are you sure you’re really a lawyer?
Ryan: I really don’t have time.
Zenger, yes, I’m sure. I was going to fling that question back at you, but I only got as far as “Are you sure you’re really …” before I realized that people don’t seem to know what you’re even supposed to be now.
The order was very clear. The TRO is stayed.
Also, Jones & Mayer shouldn’t just be fired. They should be fired and sued for malpractice for risking taxpayer dollars in a lawsuit that was designed to cover up their own negligent conduct in connection with the failure to secure these files in the first place. It was a clear conflict of interest for them to handle this case, meaning they should have recused themselves outright. This makes their conduct far worse than just giving the City bad advice in recommending a lawsuit they couldn’t win. Moreover, by the time this case is resolved the inevitable attorney fee award for prevailing on the SLAPP motion is going to be substantial, given the lengths they have forced Ferguson and Curlee’s attorney to go to protect their First Amendment rights, so the taxpayers will be substantially damaged by their conduct.
It will be interesting to find out how hard Jonesy himself was pushing this forward as a “must.” That little Ahmad dude seemed to want to make sure everybody knew he had little or no choice, which of course is bullshit.
Flory and Fitzgerald on the other hand are vindictive as hell and this aligns closely with their vitriol against Ferguson and other “malcontents.” Silva is just a spineless tool and will do whatever he’s told.
Sean — so you’re saying that, with the TRO stayed, FFFF can publish right now? Or does something restrain them from doing so prior to the end of the stay?
Even if it’s just the prospect that if they do publish the court will be pissed off and rule against them, it would still be a prior restraint.
Otherwise, why haven’t they already published everything that they’s found?
Well it could be because the Stay was just lifted and it takes a bit of time to put something together, especially when you are trying to work to put a roof over your head (Curlee still has a job) and also deal with other legal issues, such as the SLAPP Motion.
Okay …. but in that case it seems like the TRO might as well have stayed in place. Usually in these prior restraint cases you see a rush to publish once the opportunity arises. I guess here the only use of it is to give Fullerton a chance to appeal it.
Still wrong.
Your opinion would be more meaningful if you knew shit from shinola. But thanks for commenting.
And your opinion would be more meaningful if you could just once admit you were wrong.
And still wrong. And no thanks to you ’til you pull your noggin out of your rectum.
Be quiet while I’m talking to Sean.
The TRO needed to be stayed (or preferably vacated outright) because, you know, First Amendment. Also the Order makes it clear to the Trial court that will be hearing the Motion for Preliminary Injunction that the evidence proffered did not even meet the initial burden of proof as a matter of law, which is a substantial victory for the Defendants.
Vacating it might have made sense; that could have been appealed. But look: in this sort of case, one of the questions at hand is the balancing of equities: a combination of likelihood of prevailing and severity of harm. Having been granted (perhaps temporarily) the right to publish, their NOT doing so suggests that the need to publish is not imminently pressing, and seems to undercut their argument that their should be no preliminary injunction.
I haven’t read the appellate order, but I’m surprised that they dissolved the TRO so quickly prior to additional fact-finding — on, say, whether a reasonable person would have known that they were supposed to limit themselves to certain files. This doesn’t seem like a pure matter of law to me. If it were, it might lay waste to the idea of “security through obscurity.”
It’s a page long.
Maybe you should read it before telling everyone what it says and tossing insults.
Why read when you can bloviate?
Maybe you should have posted a link to the order, Ryan. I don’t see one.
And maybe you should be more even-handed when you criticize only one of two people tossing insults at one another.
I presumed that if the order had really lifted the TRO, and they were not under additional duress from the court, that FFFF would have done what every other publication in this position I know of would have done and posted the files during the window that they could unquestionably legally do so (possibly being subject only to a later tort suit, but not criminal prosecution).
They didn’t, so — lacking access to the order — I presumed that the order must not have said that. If it did, and they’re still sitting on the files, in my opinion it’s going to make it harder to win a later fight against an injunction, because its publication obviously lacks urgency and certainty — but Sean hasn’t given me his opinion on that yet.
As for you, Zenger, we’ll add the definition of “bloviate” to the list of things that you think you know but don’t. I’d ask if “you’re really sure you[re a ________,” but I don’t know how you fill in the blank these days, if at all.
Insult everyone you’d like, Greg. Just read the one page, first.
Chill out.
Where. Is. The Link?
Bottom. Of. The. Page.
https://www.fullertonsfuture.org/2019/fullerton-v-ffff-appeals-court-rules-in-favor-of-ffff/
**sigh** I’ll make it even easier, since Greg did a good post for Manny:
https://www.fullertonsfuture.org/wp-content/uploads/2019/11/G058506-Friends-of-Fullerton-v.-SC-Stay-Prelim-Oppo-Palma-Order.pdf
Seek psychiatric help. Immediately.
Ryan, I believe that this is where you administer a tut-tut to Zenger.
As a rule, I don’t read FFFF. I’m sure that many of our readers don’t. Do presuming that’s I should have read something because it’s on FFFF is sort of like presuming that I must be aware of the latest scandal in Riverside County. Maybe, but post a link anyway.
I’ll not getting in between you two. You’re both adults.
Sean, see my post below about (in part) the Stored Communications Act. I’m interested in your take on that aspect.
The back and forth here is hilarious. What a bunch of losers. The only thing true was the comment about the worthless, spineless Ahmed.
A couple guys are being threatened with federal prison and having property seized, and I get a comment section full of, well, this.
I guess that’s why we can’t have nice things.
Wrong.
(I just wanted you to see how irritating that is.)
I think that you’re making the mistake of only reading a persuasive brief on one side of a legal dispute and thinking that it’s the last word. Last I was seriously involved in CFAA jurisprudence, it was generally agreed that (1) it was murky, in part because (2) they legislation was WAY behind technological advancements and it was unclear to what extent courts could and should do to fix it. (Courts like to say that it’s up to Congress to update it, and let’s all laugh at that notion.)
So when you say that everyone uses VPNs and it should be obvious that someone should be able to use one without running afoul of CFAA, you are — I’m trying to make this sound as non-insulting as possible, because you’re not a lawyer and there’s no strong reason that you should get this — consuming legal writings in an unsophisticated way. The notion that, if something is available on the internet in a way that others aren’t going to just stumble upon it, they can’t require some sort of identification before you get access to it may or may not be right, but it’s not stupid or frivolous. With outdated legislation, courts generally proceed by analytical reasoning: they might ask a question like “at the time that the CFAA was adopted, would it be the case that someone getting access to a file would always have left a “trackable” trace? Is it reasonable to believe that people should be able to depend on such a trace as an implied requirement for getting such access? If so, what rules, if any, would there be expected to be posted for people to know that they should not root around anywhere that they are not explicitly allowed?
If you think that all of the above is settled law, you’re mistaken. You’re writing as if it is because you believe, armed with the brief and a court order, that it’s obvious that they didn’t violate the CFAA. I’d bet a small amount at even odds that you’re right, but I’d neither bet a large amount nor give great odds. If I were in a formal rather than informal setting, I’d probably feel the need to do a lot of research on this before giving an opinion — it seems to me that it’s complicated, but maybe it isn’t! — but for these purposes all I can say is that it doesn’t seem ridiculous that when you intentionally enter a virtual space, either because it’s public or because a part of it is public, you might well NOT be allowed to root around in every file that wasn’t specifically password protected, no matter what admonitions or requirements have been conveyed.
I hope that this comment, even if you disagree, seems less woeful to you.
Marginally less woeful.
At best, it’s wildly inappropriate for the City Attorney to issue a press release labelling these two individuals criminals. At best, it’s speculating.
At worst, it’s defamation.
I think worst is a whole lot closer to the truth given the outright lies in the city’s statements.
Ryan, accusing someone of violating a federal criminal statute IS accusing them of being a criminal. There’s no way around that. I realize that we don’t have the stature of City Attorneys around here, but how often did people here (and on FFFF) accuse the officers who killed Kelly Thomas of being criminals when they had not been, and would not eventually be, convicted of crimes? It’s based on one’s reading of the law and one’s opinion that they violated it — in both cases.
Big, big difference between talking about someone being a murderer who is charged by the district attorney as one and a municipal attorney accusing individuals of committing a federal crime as part of a civil action.
I hope we all see that absurdity.
Can I issue you a gag order. You’d be grateful later.
Here are helpful phrases you might want to learn:
1) I made a mistake
2) I don’t know
3) I’m sorry
Ignoring Zenger’s self-pleasuring:
Ryan, the CFAA, as I recall, provides for private rights of action — like this lawsuit. It has civil and criminal components — much like a law against trespassing (which in most circumstances is state, not federal.). If you sue someone for trespassing on your property, you are accusing them of a criminal act, but if you’re bringing a civil suit you are not calling them a criminal. You’re in essence calling them a tortfeasor.
I’m not going to go back to the original complaint right now, because I’m on my phone while in a break at work, but did the complaint or the press release call them “felons” or “criminals,” or did it just say that they broke a federal law? If so, was the rest your gloss on it? The above distinctions may not mean much to you, but they do to lawyers and judges.
The City attorney has called them criminals publicly several times.
When you have time, watch the video.
Still wrong.
500 words.
Here’s your answer: wrong.
Stupid, but self-impressed.
Even more wrong than ever.
Oh, no — THAT one was dead on.
Ok, I read the appellate court order. I find it confusing. The Appellate court stayed Sections (1)(j) and (1)(k) of the trial court’s TRO, and announces that it is considering issuing a superseding writ with respect to one or both — though, contrary to the sense you’d have gotten here, it doesn’t say on which side it would cone down. This is either a total green light to publish, copy, sell, etc., or it’s a threat that it still may come down with an adverse order, in which case it’s a sort of Trumpian prior restraint, by implication only. I don’t know whether I’d clear them to publish in this circumstance, which makes it quasi-prior restraint, but perhaps without the clock running.
Vern, if you wouldn’t mind posting a link to the original Superior Court order, what I’d like to see is what else it contains. It may be — in fact, it seems fairly likely — that there are some other provisions in that order that might clarify things.
Ok, I’ll toss it back to the amateur law enthusiasts (plus Sean) for now.
Confusing? You could ask a lawyer for clarification.
So, to tidy up loose ends at the end of the year — what happened with this?
No idea, I haven’t seen anything recently.
Last I saw, the TRO banning publication was stayed on appeal.
Quick update 05/13/2021: The Fullerton Observer reports this morning the City of Fullerton finally agreed to settle this case. The settlement includes an acknowledgement the bloggers did absolutely nothing wrong, the issue was caused by City Employees, and awards $120,000 in compensatory damages to the two named bloggers, $250,000 in legal fees for the defendants, and was approved on a 3-2 vote.
I’ll round up and guess that with the city’s own legal costs, Fullerton taxpayers are stuck paying a $1,000,000 bill.
I told you so, I told you so, and I told you so.
$1,000,000, because four elected officials couldn’t understand that literally double-clicking is not a crime. I’m pretty sure that even after $1,000,000 two of them still don’t get it.
I’m not surprised. I drew them a picture and that didn’t work either.
If the picture were connect the dots they still wouldn’t have got it. On the bright side…oh, wait.
Who were the two on the losing side? O’m guessing that at least Jung and Bruce W. voted yes.
If you come across a written opinion, I’d like to read it.
So that female lawyer who hasn’t been around is now around?
Zahra and Silva.
Zahra I can understand. His votes have been vindictive for awhile now.
Silva? I thought he was better than that. I really did. Guess that’s on me.
Silva always seems to be mired deep in a state of confusion.
Huh. Dunlap was the one I couldn’t remember. I also forgot that it’s not an all-male Council.
Do you have the case number? I still want to read the opinion; it will affect my understanding of the relevant laws. (And it doesn’t matter if I criticize it, because they settled!
I think that this might have been a 4-1 vote, but that once Silva knew that Jung was with Whitaker and Dunlap, he didn’t want to leave Zahra out on the limb alone. Sharon’s a party leader, after all, and part of that is avoiding have people’s eyes gouged out. (Unless they’re me, Vern, and some others.)
No, that’s not correct. He left a comment with the Observer that states otherwise.
He either, still, doesn’t understand what happened (he was lied to and hasn’t figured it out, which doesn’t bode well for him) or he knows what happened and still wants to punish innocent people anyway.
Either way, that’s shitty.
No opinion from the appellate court as the settlement took it off the agenda. Every opinion the trial court issued was stayed almost immediately by the appellate court, so you can ignore its garbage.
“I also forgot that it’s not an all-male Council.”
Ahem. What?
Anaheim and Fullerton are both all-male Councils.
You have caught me in an error. Not not.
Vern, I’d love it if you could get an explanation from Jesus on this.
It’s totally ridiculous and owes us more than a sound bite.
Ryan, an explanation? His statement was not only incoherent but it was also the most coherent utterance you’re going to get.
*Got our first article printed in the Fullerton Tribune back in 1957….think it was a take off on the “Ides of March”…..sort of a tongue in cheek take on Julius Caesar and his demise….
sort of miss those days……after reading this stuff.
How about more stuff about Mickey Flynn of the dreaded Anaheim Colonists running back a kick-off for a touchdown against our Sunset League champs back in 1958? Something just plain meaningful perhaps?
Funny how everybody in Fullerton who made this lawsuit happen are now sayin they were against it all along.
Success has a thousand baby daddies, failure has but one baby mama left alone.
This is worth your time.
Jesus Silva and Ahmad Zahra no longer take my calls. If anyone is still in contact, please make sure they watch this.
https://www.fullertonsfuture.org/2021/fullerton-settles-lawsuit-with-us-hackers/
This entire thing is an absolutely hideous and shameful representation of the taxpayers’ interests. There are zero reasons Jones and Mayer should have a job in Fullerton come Monday.
Like I said when this was originally published, evil is the right way to describe this.