An interesting post from Prof. Howard Friedman (Religion Clause) on a recent decision:
In Council on American-Islamic Relations v. Gaubatz, (D DC, Nov. 3, 2009), the U.S. District Court for the District of Columbia granted a temporary restraining order to CAIR to prevent the use by defendants of various documents and e-mails that were surreptitously taken from CAIR’s offices. Defendant Paul Gabautz publishes a blog devoted to “exposing Islamic terrorist operations in America.” A number of postings on the blog accuse CAIR, a Muslim advocacy group, of being a front for the Muslim Brotherhood and of supporting Al Qaeda. Paul Gabautz implemented a plan to get his son, Chris, hired as an intern at CAIR under an assumed name. Chris copied or removed various documents and recorded various meetings and conversations at CAIR. Many of the materials were either posted on Paul’s blog, or included in a book co-authored by Paul that was published last month titled Muslim Mafia: Inside the Secret Underworld That’s Conspiring to Islamize America. Among the blog postings were lists of CAIR employees and donors (with personal contact information). The TRO, along with its broader bans, specifically ordered removal of these and return of the lists to CAIR. Here is an account of the decision and background on it from World Net Daily that published Gaubautz’s book and is defending the Gaubautz’s in the lawsuit.
I haven’t read the decision myself yet, but I thought the item was worth passing along; to see the underlying documents, go to the Religion Clause post for links.
Steve says:
The underlying facts are certainly interesting, but the legal decision sounds unremarkable. If you take a customer list or an employee directory or whatever from your place of work without authorization, you’re probably going to have to give that back.
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November 5, 2009, 4:46 pmtroll_dc2 says:
But if it is out in the public, what does giving it back mean?
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November 5, 2009, 5:01 pmegd says:
Curious why these individuals didn’t post the information to Wikileaks.
While I disagree with the site’s existence and purpose, it’s hard to argue that it’s not effective in disseminating information and dodging take down attempts.
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November 5, 2009, 5:19 pmThe Democrat Coup D’etat, Health Care, Cap And Trade, Climate Bill, Marches On Regardless Of Support « Moonbat Patrol says:
[...] CAIR Gets TRO Forcing Return of Purloined Documents The Volokh Conspiracy [...]
Ariel says:
Isn’t this sort of similar to the Pentagon Papers case? The government cannot block the printing of papers that were inappropriately stolen, right?
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November 5, 2009, 10:03 pmSteve says:
I don’t think publishing the stolen employee directory of a private organization would be analyzed quite the same way as the Pentagon Papers. Since the book has already been published, though, I’m not sure there’s much recourse except money damages.
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November 5, 2009, 10:37 pmneurodoc says:
I’m surprised no one has mentioned CAIR v Whitehead, in which CAIR sued another of its antagonists for libel, only to turn tail and run rather than turn over what the defense sought from them in discovery.
In CAIR v Gaubitz, is the plaintiff seeking more than simply the return of whatever they allege this defendant improperly took? Is CAIR suing for libel again, seeking monetary damages rather than just a permanent injunction, and if so, what will CAIR do when they must prove the falsity of whatever was published and damage to their reputation? Does the claim of improperly obtained materials change things so CAIR v Guabitz does not amount to CAIR v Whitehead redux? If Whitehead were to agree to waive confidentiality, something I expect he might gladly do, might CAIR be forced to disclose the terms of the settlement agreement they entered into with Whitehead to shut down that litigation to avoid embarrassing disclosures or fold once again?
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November 5, 2009, 11:20 pmneurodoc says:
There are ways other than through Wikileaks to find the information in cyberspace once it has been put there, aren’t there?
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November 5, 2009, 11:23 pmAriel says:
Steve, that’s what I meant — the only recourse is probably going to be money damages, not an injunction. There may be some privacy issues that would allow suppression of the directory, but I’m not sure that’s the case for a lot of their other internal documents.
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November 5, 2009, 11:34 pmneurodoc says:
Suppose one comes into possession of purloined materials, prints up 5,000 copies and distributes 3,000 before being hauled into court by the rightful owner who seeks injunctive relief, asking the court to order the destruction of the 2,000 copies not yet distributed, all feasible efforts to recall as many of the 3,000 already distribute copies as can be gathered up, and no further copying and distribution of the materials. The court cannot grant such relief because the damage has already been done and it cannot be completely undone, the only remedy being an award of monetary damages? There can’t be both a permanent injunction and a monetary award? If the materials have no commercial value either in the hands of the rightful owner of them, nor in anyone else’s hands, then what would be the measure of any monetary damages other than harm to reputation or privacy rights, and wouldn’t that make it a libel action or something very much like a libel action, which CAIR didn’t want to go through with the last time?
While CAIR v Gaubitz may not have been framed as a libel action, might it not in the end amount to one, like CAIR v Whitehead, even the plaintiff wants money from the defendant? If you huff and puff about suing for libel, as CAIR has previously, then actually go ahead with a libel action only to give it up when faced with a vigorous defense, as CAIR did after suing Whitehead, do you shoot yourself in the foot by making it harder for yourself to prevail in the future though you might have better facts then, e.g., someone “surreptitiously takes” materials that belong to you and publishes them to cause you embarrassment (Gaubitz?) rather than just uses that which you cannot claim to own for the same purpose (Whitehead?)? If someone falsely maintained that Bernie Madoff was a child molester, would Madoff have any hope of recovery for the libel, or is his reputation such that you could say anything at all about him no matter how false and malicious without the possibility of being liable to him for libel?
[Does anyone know what exactly was in the CAIR documents and email Gaubitz managed to get hold of and publish?]
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November 6, 2009, 12:46 amSteve says:
The court cannot grant such relief because the damage has already been done and it cannot be completely undone, the only remedy being an award of monetary damages? There can’t be both a permanent injunction and a monetary award?
That’s not what I’m saying, surely. I don’t know if it’s what Ariel is saying. I think, though, there is a point at which improperly obtained information becomes so widely disseminated that it’s futile to try and unscramble the egg.
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November 6, 2009, 1:54 amThe Watcher says:
The Watcher recalls, many many years ago, a court decision about the Pentagon Papers...
What did the supreme court say there...prior what?
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November 6, 2009, 8:54 amneurodoc says:
...restraint. But inapt here for a number of reasons, including that the material has already been published, so not prior.
How about my hypothetical with 5,000 printed up, 3,000 distributed, and 2,000 still in the publisher’s hands, would that be “so widely disseminated that it’s futile to try and unscramble the egg”? Is publication via the internet fundamentally different from “traditional” print and broadcast means of publication, because life in cyberspace can be effectively forever? An injunction can be granted requiring that the material be taken down from the website even though that doesn’t mean it will be truly recalled, especially if it has already come to the attention of others and excited their interest, can’t it? If the publisher had only 1 of the 5,000 copies still in his/her hands, they could be required to destroy that lone remaining copy even though the effect would only be a symbolic one, couldn’t they?
Anyway, I think the issue of an injunction, especially a TRO, which means more will follow at a later time, is less interesting than what may follow. If the court agrees with CAIR that it was legally impermissible for Gaubitz to obtain the material in the way that he did and publish it, then does CAIR get monetary damages? If they do, what is the measure of those damages? What injury did CAIR suffer other than perhaps one to reputation? If everything that might damage their reputation is true, then they can’t recover for libel, can they? Individuals have privacy interests, but do organizations? Will CAIR once again be in the position they found themselves in when they undertook to sue Whitehead for libel only to bail out a while later when the time came to put up or shut up?
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November 6, 2009, 9:38 amegd says:
Sure. But websites like blogspot, facebook, or independent hosts all run the risk (?) of complying with a take down notice. If the user posts information to Blogger, and Google is served with a notice to remove the material, it is likely that Google will comply, because they have an interest at stake.
Wikileaks, not so much. Their purpose is to disseminate information and they oppose legal take down notices vigorously, and any notices are difficult to enforce. Not only that, but the site is easily searchable, user friendly, and open to anonymous comments.
My problem with Wikileaks is that, like most international “watchdogs”, they get more information from the US and other western sources because of the ease of acquiring information, and the general lack of death penalty for disseminating state secrets. This causes the appearance that the West houses the most corrupt governments, while real totalitarian regimes get to skate free because of strict control over negative information.
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November 6, 2009, 9:40 amneurodoc says:
So, how exactly does one find whatever Gaubitz put out there in cyberspace before Google gets an order to do whatever it does (“delink”?) to postings of that “purloined” material? Might someone quickly find it and post it to Wikileaks so CAIR can get the publicity it so richly deserves?
[BTW, does “purloined” deserve scare quotes around it here because we need a court to tell us whether Gaubitz obtained the material by illicit means, or under the circumstances is it self-evident that he did so by illicit means, using his son as a mole to infilitrate CAIR? If someone wants to get even with a former employer and publishes an email chain that makes that former employer look bad in the public’s eyes, has the individual “purloined” the material because the employer never would have agreed to its publication? Is “purloined” a word sufficiently precise so as to have legal significance, that which is “purloined” being “illicitly obtained”?]
Do you really think that great numbers of people are seriously mislead on account of the disproportionately greater number of embarrassing leaks from countries with less corrupt and repressive governments than from those with more corrupt and repressive ones? That seems improbable to me. I think it is a different matter, though, when the international “watchdogs” like HRW are selective in who and what they go after, as well as how they go about it, emphasizing the shortcomings of the less flawed over those of their much more flawed enemies, as HRW does. (Kinda like that thing about the mote in one’s eye, the beam in another’s.)
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November 6, 2009, 10:13 amjosh says:
You guys raising Pentagon Papers understand that the government is not a party to the litigation, right?
Neuro, I wouldn’t simply assume CAIR has the burden of showing falsity. I think truth is an affirmative defense. I don’t recall all my libel law from the bar exam, but I think you have it backwards.
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November 6, 2009, 10:24 amneurodoc says:
Yes, I do.
Two things: i) either the published materials are what they purport to be or they are not. That’s probably not even in doubt, but if it is, it shouldn’t be hard to establish, whoever’s burden it would be to prove it. ii) if Gaubatz relied primarily on CAIR materials, then can publication of those materials be grounds for a “libel” action, or does it become a “privacy” matter? And again, if CAIR is seeking damages, won’t they have to disclose that which they were unwilling to disclose when they sued Whitehead? For the sake of whatever damages CAIR might be able to collect from Gaubatz if successful with their suit against him, would they be willing to make those disclosures even under seal?
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November 6, 2009, 11:23 amjosh says:
neuro
If you understand PP involved state action, why would you (or the other comments. forgive me if i’m attributing other’s comments to you, but you answered) think its legal analysis applies in this case? According to the opinion, CAIR brought five claims: conversion, breach of fiduciary duty, breach of contract (the kid signed a confidentiality agreement), trespass and violations of the electronic communications privacy act.
Setting aside the fact that the defendants did not appear to oppose the motion, despite efforts to reach them by the court itself, i’m wondering what part of the PP case analysis applies here? I’m not familiar with ECPA litigation, but, since it is a statute, I assume the framework is different than the constitutional claims in the PP case. From reading the case, the TRO analysis on this issue seems to focus on the alleged irreparable harm CAIR might suffer from the release of confidential information.
Setting aside the conclusory allegation that CAIR’s information is not confidential, I ask again, what does Pentagon Papers have to do with anything?
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November 6, 2009, 2:22 pmjosh says:
I’d also note that in granting the TRO, the court only analyzed the conversion and breach of contract claims with respect to the TRO elements. It didn’t address the ECPA or other claims.
I’m not sure about the other comments. It appears that CAIR won’t need to disclose anything. The TRO orders the Defendants to remove from their blog what the court rules that CAIR likely will be successful in showing was taken from it (likelihood of success on the merits of the conversion claim). Whether the toothpaste is out of the tube (i.e., someone can get a hold of the stolen documents and repost them elsewhere) doesn’t seem to change the question of whether CAIR was damaged.
This isn’t even a libel case, so truth or falsity isn’t even an issue.
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November 6, 2009, 2:29 pmneurodoc says:
Have a look and you will see that it was The Watcher @8:54 AM, not I, who brought up the Pentagon Papers. I never suggested that that case had any relevance here, and only supplied the word “restraint” in response to The Watcher’s question, “What did the supreme court say there...prior what?”
Thanks for calling my attention to the link to the court order there. I overlooked it before, so didn’t know all that was there, including what claims CAIR made when it went for the TRO. Under the circumstances, I would have been very surprised if CAIR had not gotten the TRO, and I will be surprised if the defendant is not permanently enjoined from doing anything with the materials other than return it to CAIR, with no further publication of them, taking down what is on the website, and probably destruction of whatever books haven’t been sold yet. But I continue to wonder what will be the measure of damages that CAIR might be entitled to on account of the defendant’s tortious conduct, and whether CAIR will want to pursue damages. CAIR may not be suing for libel, as they did in CAIR v Whitehead, but will they be able to keep secret what they want to keep secret while going after the defendant for damages?
How do people (or organizations) with embarrassing secrets they don’t want to come out (CAIR) go about suing for libel, slander or invasion of privacy and prove damages without risking disclosure of those secrets in the course of discovery and proving up their damages? There is no commercial value to what was disclosed, save perhaps discouragement of donors whose names and contact information were published, is there? Do such plaintiffs ask the court to limit discovery and/or place everything under seal, something CAIR couldn’t get in its case against Whitehead?
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November 6, 2009, 5:47 pmChristopher Cooke says:
Neurodoc:
there may be an attorney’s fees clause in the confidentiality agreement, so CAIR could be entitled to those. Also, CAIR could obtain a portion of Graubitz’ profits on his book, if it uses CAIR’s papers without permission, and could obtain as a damages the costs of new security measures it has had to put in place b/c of defendants and, maybe, get punitive damages.
ECPA may have statutory damages provisions (don’t remember).
One fishy thing about CAIR’s papers is that they didn’t submit a signed agreement from the intern, they said it was “missing”. I would play with that fact if I were defendants’ counsel (unless the kid took it).
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November 6, 2009, 6:16 pmSoronel Haetir says:
Put all the libel and PP analogies aside, this looks very similar to the Church of Scientology cases that found their materials were protected under trade secrets doctrine. It would not surprise me at all if the documents at issue here were similarly protected.
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November 8, 2009, 8:43 am