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Shenanigans (Internet Takedown Edition) Utah Law Review Volume 2021 Number 2 Article 1 8-2021 Shenanigans (Internet Takedown Edition) Eugene Volokh UCLA School of Law, [email protected] Follow this and additional works at: https://dc.law.utah.edu/ulr Part of the Communications Law Commons, and the Computer Law Commons Recommended Citation 2021 ULR 237 (2021) This Article is brought to you for free and open access by Utah Law Digital Commons. It has been accepted for inclusion in Utah Law Review by an authorized editor of Utah Law Digital Commons. For more information, please contact [email protected]. SHENANIGANS (INTERNET TAKEDOWN EDITION) Eugene Volokh* TABLE OF CONTENTS I. INTRODUCTION .................................................................................................. 238 II. FORGERIES ....................................................................................................... 244 III. STIPULATED INJUNCTIONS INVOLVING APPARENTLY FAKE DEFENDANTS ... 252 IV. STIPULATED INJUNCTIONS INVOLVING FAKE NOTARIZATIONS .................... 259 V. INJUNCTIONS AGAINST A REAL DEFENDANT WHO IS NOT THE REAL AUTHOR ............................................................................................... 261 VI. DEFAULT JUDGMENTS OBTAINED WITHOUT GENUINE ATTEMPTS ............... 263 AT LOCATING DEFENDANTS ................................................................................. 263 VII. WAG THE DOG INJUNCTIONS: SUING THE COMMENTER, NOT THE AUTHOR ................................................................................................. 267 VIII. BURIED-URL INJUNCTIONS ......................................................................... 271 A. Government Documents .............................................................................. 271 B. Media Articles ............................................................................................. 274 IX. LYING THEN OR LYING NOW? ....................................................................... 276 X. IMPLICATIONS: DESIGNING SYSTEMS IN A FALLEN WORLD ........................... 279 A. Preventing Fraud Through Verification ...................................................... 280 1. Consumers of Orders ............................................................................... 280 (a) Vigilance Generally ............................................................................ 280 (b) Notice to Affected Parties ................................................................... 281 2. Courts ....................................................................................................... 282 (a) Verifying Authenticity of Orders ........................................................ 282 (b) Verifying Authenticity of Sealed Orders ............................................. 283 3. Lawyers .................................................................................................... 284 B. Preventing Fraud Through Deterrence ....................................................... 285 1. Government .............................................................................................. 285 2. Search Engines and Web Site Operators ................................................. 287 C. Preventing and Exposing Fraud Through Public Scrutiny ......................... 288 1. Ordinary Court Files ............................................................................... 288 2. The Lumen Database ............................................................................... 291 3. Text-Searchable Dockets ......................................................................... 291 * © 2021 Eugene Volokh. Gary T. Schwartz Professor of Law, UCLA School of Law ([email protected]). Many thanks to Giles Miller of Lynx Investigations for his pro bono detectIve work on the orders discussed In Part III; Adam Holland and Wendy Seltzer of the Lumen Database, my source for many of the unpublIshed and unappealed InjunctIons that I cite In this ArtIcle; Paul Alan Levy (PublIc CItIzen); KrIsten EIchensehr, Daphne Keller, DavId Marcus, Richard Re, and Joanna Schwartz; Matthew Chan; and Kyle Kaufman. Thanks also to UCLA School of Law students Alexandra GIanellI, KrIstIn HalsIng, and Ashford KneItel, who worked under my dIrectIon on an early draft of what became an amIcus brIef on my own behalf (In Hassell v. Bird, 420 P.3d 776 (Cal. 2018)), which I eventually turned into this Article. 237 238 UTAH LAW REVIEW [NO. 2 4. PACER ..................................................................................................... 291 D. Minimizing the Harm of Fraud ................................................................... 292 1. Search Engines and Web Site Operators: More Information Rather ...... 292 than Removal of Information ........................................................................ 292 2. Courts: Limiting the Binding Scope of Orders ........................................ 294 E. Systems of Libel Liability and 47 U.S.C. § 230 ........................................... 298 XI. CONCLUSION .................................................................................................. 302 APPENDIX A: APPARENT FORGERIES ................................................................... 302 APPENDIX B: LAWSUITS THAT SHARE BOILERPLATE WITH THE FAKE-DEFENDANT CASES .................................................................... 311 APPENDIX C: OUT-OF-STATE ORDERS WITH CALIFORNIA NOTARIZATIONS ...... 313 APPENDIX D: LEON COUNTY, FLORIDA (TALLAHASSEE) – DEFAULT JUDGMENTS WITH NO APPARENT ATTEMPT TO SUBPOENA ANONYMOUS POSTERS’ IDENTITIES ............................................................................................................ 315 I. INTRODUCTION “A good name is more desirable than great riches; to be esteemed is better than silver or gold.” —Proverbs 22:1 (New International Version) * * * In 2016, Google received a copy of a Miami-Dade County default judgment in MergeworthRX, Inc. v. Ampel, No. 13-13548 CA.1 A certain web page, the judgment said, was libelous: 2. The reports posted on or about December 30, 2014 by Defendant, CE- LIA AMPEL on www.bizjournals.com regarding Plaintiffs, MERGE- WORTHRX, INC. and STEPHEN CICHY (the “Report”), which is aVail- able at http://www.bizjournals.com/southflorida/news/2014/12/30/miami- acquisition-cpmpany-mergeworthrx-to-dissolve.html contains defamatory statements regarding Plaintiffs.2 The submitter, therefore, asked Google to “deindex” that page—remoVe it from Google’s indexes, so that people searching for “mergeworthrx” or “stephen cichy” or “anthony minnuto” (another name mentioned on the page) wouldn’t see it.3 1 See infra note 5. 2 Id. 3 See id. People searching on Google would not see the DaIly BusIness Review artIcle mentIoned In the default judgment even If they searched for other terms—the deindexing was of a page, not by search term—but those are the terms that would have most lIkely led to that page. 2021] SHENANIGANS (INTERNET TAKEDOWN EDITION) 239 Google often acts on such requests, as it did on this one, effectively vanishing the material from the Internet.4 And why not? It’s a service to Google’s users, who presumably want to see true information, not information that’s been found libelous. It’s good for the people who were libeled. It can let people at Google feel that they are doing good. And it’s respectful of the court judgment, eVen though it’s not strictly required by the judgment. Win-win-win-win. Except there was no court order. Case No. 13-13548 CA was a completely dif- ferent case. Celia Ampel, a reporter for the South Florida Daily Business ReView, was neVer sued by MergeworthRX. The supposed judgment submitted to Google was a forgery.5 It was one of over 90 documents submitted to Google (and to other hosting platforms) that I believe to be forgeries.6 Google’s well-meaning deindexing policy has prompted a rash of such apparent forgeries, some seemingly home brewed and some done for money as part of a “reputation management company” business model. Such reputation management, whether fraudulent or legitimate, is big busi- ness.7 And those over 90 items are just the apparent forgeries, which are possible for Google to spot. Google seems to check most of the submissions it gets against court records, many of which are aVailable online (as the Miami-Dade County records 4 See How Can I Remove a URL on My Website from the Google Index?, SISTRIX, https://www.sIstrIx.com/ask-sistrix/google-index-google-bot-crawler/how-can-I-remove-a- url-on-my-websIte-from-the-google-index/ [https://perma.cc/74VK-QPZ8] (last visited Jan. 28, 2020). 5 See Apparently Forged “FInal Judgement [sIc],” Mergeworthrx, Inc. v. Ampel, http://www.lumendatabase.org/notIces/13179239# [https://perma.cc/TKS9-WT6Z] (chang- ing case number and party names, but using much of the same text as Final Judgment, Allied MedIcal Supply, Inc. v. Bryson, Case No. 13-11166 CA 15 (Fla. CIr. Ct., 11th Cir., MiamI- Dade Cty. Dec. 17, 2013)). See Apparently Forged “FInal Judgement [sIc],” Mergeworthrx, Inc. v. Ampel, supra note 1. UnsurprIsIngly, there’s no Bluebook rule for governing the ci- tation of forgeries, so I cite apparently forged orders throughout as “Apparently Forged [pur- ported order tItle], [purported case name], [URL where the apparently forged order can be found on the Lumen Database].” The case number and jurisdiction aren’t included in the citatIon because most forged orders don’t refer to real cases and the case number Is generally fictional. That orders were apparent
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