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Should Blogs Enjoy the Same First Amendment Rights as Traditional Press?

Aaron Krowne, Founder of the Mortgage Lender Implode-o-Meter, posted the following article yesterday.

New Hampshire Judge Orders ML-Implode To Divulge Identities of Anonymous Posters

Questions:

1)  Should blogs/consumer advocacy websites enjoy the same First Amendment protections as traditional press?

2)  Does Justice McHugh’s decision disturb you as much as it disturbs me?

3)  On the other hand, how is a company like The Mortgage Specialists  (innocent until proven otherwise) protected against an insider leaking confidential documents, the validity of which is yet to be substantiated?

I am a proponent of the ML-Implode-O-Meter and a believer in Aaron Krowne.  So I’m afraid I could be biased here.  However, if you share my opinion regarding the sanctity of the First Amendment:

a)  Aaron has created a few advocacy groups on Facebook so please look him up if interested.

b)  Here’s a list of volunteers helping Aaron.

Perhaps Aaron himself puts it best:

“If the order stands, a flood of similar lawsuits filed by corporations against ‘whistleblower’ and consumer advocacy web sites could appear across the country”

More negative coverage of “The Mortgage Specialists” can be found here.  I actually called them prior to publishing this article – fully expecting for the phones to be disconnected.  Instead, my call was taken on the first ring.  During our 2-minute conversation, the TMS employee told me that “all that had been taken care of”, it was a “compliance issue, not fraud”, and that the guilty parties were no longer with the company.

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  • 12 comments

    12 Comments so far

    1. Brian Brady April 2nd, 2009 8:13 pm

      Shouldn’t “The Mortgage Specialists” have a right to face its accusers, Mark? There is a reason for newspapers to demand the names and addresses from the “Letters to the Editor”.

    2. Mark Green April 3rd, 2009 7:01 am

      Brian, I do agree to a certain extent, per #3 of my questions. Interestingly, I didn’t notice anything that disputed the accuracy/validity of the leaked document(s). Nor did TMS or the judge ever prove that the leaked document was libelous (which actually should have been step #1 of the lawsuit). This is a very tricky subject, with no clear answer.

      When the police conduct a “line-up”, there’s a reason why it’s through a one-way pane of glass. Whistleblowers typically have little or nothing to gain but a lot to lose. In this case, the informant would likely need to hire an attorney at several hundred dollars per hour just to defend themselves from TMS. Most of us don’t have the coin for that.

      Clearly, something shady was going on at TMS. Signatures were allegedly forged. Incriminating documents were destroyed. Did this informant help reveal injustice and contribute to the common good? My initial reaction is “yes”.

      OJ proved that it’s often not about who is right or wrong, but who has the deeper pocketbooks.

    3. Brian Brady April 3rd, 2009 8:21 am

      “Interestingly, I didn’t notice anything that disputed the accuracy/validity of the leaked document(s.”

      Is the internet an appropriate place to discuss a dispute with a regulator?

    4. [...] Posted an item Joe Spake: BloodhoundBlog.com | Should Blogs Enjoy the Same First Amendment Rights as Traditional Pr… [...]

    5. Sean Purcell April 4th, 2009 10:55 am

      There is a reason for newspapers to demand the names and addresses from the “Letters to the Editor”

      Yes, but the more appropriate analogy here would be the investigative reporting – wherein the articles often site anonymous sources and reporters are sometimes jailed for contempt of court in disputes over 1st amendment limits.

      Did this informant help reveal injustice and contribute to the common good?

      In our legal system, the ends do not justify the means. You may have come to the right conclusion, but if you committed fraud in order to get there, you still broke the law. I believe defense lawyers rely on jury nullification tactics when their clients are guilty of a crime for which there is symphathy or a net positive outcome. Still, the client was charged with a crime.

      What a strange case. If an employee stole documents or publicized protected materials, even for the greater good, I would suspect that is still a crime. Can the publicizing company be forced to divulge the source? This looks to me like the ongoing news reporter battles with the courts. What’s trickier still is the internet’s play in all of this. Generally speaking, I find New Hampshire to be about as left as the People’s Republic of San Francisco – if you want to avoid extremely interpretive rulings by their courts, don’t do business there. But now the judge is ruling that if something you do can be seen on the internet by a citizen in New Hampshire, they have jurisdiction? That scares me even more than the original ruling.

      The power and the Pandora’s Box of the internet is light years ahead of the law. Is the internet an appropriate place to discuss a dispute with a regulator? I think it is. The internet is like the open outcry trading pits in Chicago: both last bastions of unfiltered information. The fear – as usual – should be efforts to curtail and restrict by the well intentioned but hopelessly ignorant, self-serving entities of our government. The power of the internet is slowly proving, in my humble opinion, to be as important as the sacrosanct right to bear arms in limiting the absolute corruption of absolute power.

    6. Brian Brady April 4th, 2009 11:54 pm

      “The internet is like the open outcry trading pits in Chicago: both last bastions of unfiltered information.”

      No,no,no; it’s not. In the pits, you have verified market participants (only). On the internet, you invite any troll with a username

    7. Mark Green April 5th, 2009 8:04 am

      Great comments Brian/Sean…

      I’ve been reflecting on the issue over the past couple days.

      1) The leak could have been handled better by the informant and by ML-Implode. The way I see it – the document in question is either fair game or it’s not. If was appropriate to post it in the first place, it ought to be on the site today. Because we can’t see what we’re debating about, it’s all speculation.

      2) Obviously, the NH Dept. of Banking was investigating TMS well before this leak occurred. Then again, it appears they also let TMS off the hook with a relative “slap on the wrist” in light of the allegations.

      3) If TMS really is “innocent”, why would they be worried about a leaked document anyhow? I’ve been thinking about all the internal documents our employees have access to. Sure, some of the information is sensitive such as revenue numbers, strategic planning docs, etc… but I can’t think of anything that would set off a firestorm.

      4) I’m coming to realize that sometimes, there just isn’t a solution to a problem. For example: we want laissez faire government but have yet to prove we can self-regulate. We want freedom of speech but have no clear-cut way of defining what is and is not appropriate. Sean, great point about NH claiming jurisdiction here. This just further muddies the water.

      When I stop to consider the ML Implode-O-Meter’s total body of work, I’m extremely grateful for it. My preference is for small government but I also want tangible measures in place to deter, prevent, identify and enforce against fraudulent, unethical and illegal activities. In this particular instance (TMS), I’d argue that the Implode-O-Meter is doing more to protect the public than even the NH and MA Banking Departments! A $300,000 fine in light of tangible evidence of mortgage fraud is an absolute joke. TMS could likely pay that fine with one week’s commissions in this refi boom.

      Aaron’s venue is so very critical to our industry. I imagine that he’s not going to bat 100%. But those of us with nothing to hide ought to stand behind him and other consumer advocate sites. As we’ve seen here, the government is incompetent and toothless – perhaps even corrupt.

    8. Sean Purcell April 5th, 2009 8:19 am

      In the pits, you have verified market participants (only). On the internet, you invite any troll with a username.

      And what exactly does it mean to be “verified?” (That’s a rhetorical question; I’ve been verified.) Having a badge on the floor of a trading pit does not make your opinion or your trades any more legitimate than having a user name and internet access. You can both be very, very wrong or just as right. Beyond the need to verify that a trader has the financial account to back his or her trades, I suppose one could claim that the pricing information is more legitimate because the trader has been verified. But that ignores the reality of open outcry trading: the public (through brokers) is driving the market and there is no verification for them. The analogy could be made that the pit itself is a web site and traders are like the moderators that keep it orderly, but the collective information of the public is there: naked, honest and open for all to see. The similarity here isn’t one of licensing or registration; it’s the open dissemination of information.

      Caveat Emptor. People must reacquire the responsibility to gather information, analyze what they read and form opinions based on their experience and intelligence. As a country (world?) we need more personal responsibility, not more restrictions on the flow of information.

    9. Aaron Krowne April 8th, 2009 7:55 am

      I might as well chime in because the above comments seem to have largely gone off on legal principles that aren’t even at issue here.

      The order, as it stands, ASSUMES MoSpec’s allegations of a defamatory comment and secret document. Problem is, those allegations haven’t been proven. Remember “innocent until proven guilty”? Well, some of us think it still applies.

      MoSpec certainly has every right to “face their accusers”, but they should not be able to threaten free speech to do so. They should first have to show that defamation did happen, and/or secrecy was breached by someone.

      However, it is VERY mootable whether either of the above were truly the case. So the order does, in fact, threaten free speech. Most of the information that comes to us is with the request of anonymity, so we cannot give that up lightly.

      In our opinion this lawsuit is what this sort of thing usually is: harassment and intimidation. We are seen as “vulnerable” by being a small shop, “shielding” a person or persons which a corporation would like to get revenge against (for better or worse). Thus, the order is a capitulation that caters to this sort of abuse of the legal system, which sets a very bad precedent.

      One thing I can say for sure: to those want to send particularly sensitive information to us, I strongly recommend doing so through an anonymizer. http://anonymouse.org/ is located in Germany and I recommend offshore remailers for legal “inoculation.” There’s also http://www.hushmail.com/ which is popular, but since it is not offshore I’m not sure I’d be comfortable using it.

    10. Mark Green April 8th, 2009 9:34 am

      Aaron, thanks for commenting… I have a question about your advice regarding “anonymizers”. Isn’t the credibility of a source among your key factors in determining whether or not the information at hand is legitimate and/or accurate?

      What would happen if you anonymously received a sensitive document that was forged/altered, accepted it as the real mccoy, published it… only to find out later that you’ve been had? Doesn’t this put you in an even more precarious position with even more liability?

      Awesome dialogue, I’m loving this topic.

    11. Aaron Krowne April 8th, 2009 10:08 am

      Mark,

      Good questions. When receiving any information in confidence, we approach it as if someone is trying to pull one over on us. The key risk is disgruntled former employees, though the phenomenon is much more rare than disgruntled management going after whistleblowing employees. Still, we always proceed with caution.

      The first check on veracity is whether we are receiving similar or identical information from other sources. Next in line is inquiry with the company in question (if possible, and if they are cooperative). Third is limited circulation on the forums or in the subscriber bulletin to attempt to confirm or disprove the report (which is disclaimed as “rumor”).

      I should emphasize, however, that it is impossible to exhaustively determine the truth BEFORE publication. You do the best you can. The editorial process should just be a sanity check and abuse filter — the whole point of publication is to DETERMINE and UNDERSTAND the truth! While this does apply to the “traditional” press, it applies especially for a forum like ours, which is clearly a venue for deliberation on what is going on — it is not the type of arrangement where we hand down the truth from on high, like some sort of authority.

      In the case that something abusive gets posted, we typically take it down when we find out. In the case that there is a complaint but we cannot prove the claim one way or another, we typically post the complaint and invite a public comment in response.

      Hope that answers your questions.

    12. Aaron Krowne April 8th, 2009 10:14 am

      One more thing, you asked if an anonymous remailer would expose us to greater liability.

      The answer is unambiguously “no”. We cannot even be faced with the disclosure dilemma if the source is truly unknown to us. And that is the main issue in play right now. We would not likely be in this lawsuit if the source(s) were truly anonymous.

      Aside from email, there are also anonymous proxies for web browsing/posting (see the “Tor” software). If we receive clearly abusive posts, we will still take them down — but true whistleblowing won’t be liable, on our part or the poster’s.

      So in a sense, users put us on the horns of a dilemma by demanding anonymity but not using internet tools to truly sieze it for themselves. This needn’t be.