In response to a commenter

Last month I noticed a lurking commenter on this site that also commented on one of Jeff Breinholt’s posts over at Mormon Matters. (Jeff is a DoJ attorney with a superb series of legal posts. If you haven’t read his stuff, I highly recommend it.) The commenter identifies himself as Frank Fox, who Jeff named as one of the pro se litigants who has filed multiple spurious lawsuits against the Mormon Church.

I got curious about these cases, and found several opinions dismissing two of Fox’s previous lawsuits. The first lawsuit, Fox v. Hawk, was dismissed sua sponte under F.R.C.P. 12(b)(6). (Cases filed pro se and in pauperis can be reviewed sua sponte under Hall v. Bellmon.) The Utah District Court gave Fox a chance to amend his Complaint, but the Amended Complaint still failed to state a claim and the case was ultimately dismissed on May 9, 2008.

Fox filed another pro se suit on February 27 of this year in the case Fox v. Eyring. Fox identified Henry B. Eyring as the leader of the Mormon Church, and alleged various claims, including that Eyring and the Church had violated his civil rights under 42 U.S.C. §1983 and §1985 and had cyberstalked him. Acting sue sponte, the Utah District Court again found Fox’s claims to be baseless and dismissed  the suit for failure to state a claim.

Not easily deterred, Frank G. Fox filed a new case in his home state of Louisiana a mere week after the dismissal of the Eyring case. In Fox v. Tippetts he again alleges civil rights violations by the Church of Jesus Christ of Latter-day Saints. Fox says that the Church hasn’t yet responded to the lawsuit, and I haven’t seen any of the filings. However, unless Fox’s pleadings have improved significantly since Eyring, this case may be doomed to a swift dismissal as well.

My guess is that almost any large institution or public figure continually face spurious lawsuits. In fact, Jeff Breinholt’s research seems to show that the Mormon Church faces more than it’s fair share of frivolous litigation. But these aren’t the sorts of cases that keep the Church Legal Department up at night.

Hackers hijack the LDS Church News Twitter Account

LDS Church News revealed that hackers hijacked the Church News Twitter account last weekend. Twitter staffers took down the site because the infiltrators had gained total control over the feed.

Charlie Crane, director of interactive media for the Deseret News, said he realized Sunday night that the Church News account had been compromised. “We tried to get it back,” he said, but he soon realized that the hacker had even been able to change the password and lock him out. “I don’t know how they got the password,” Crane said. “I’m very skeptical (of Twitter) now.” He expressed concern for other Twitter accounts the Deseret News operates.

Crane said the hacker posted some anti-Mormon material on the site earlier this week. The Church News and Deseret News are owned by The Church of Jesus Christ of Latter-day Saints through Deseret Management Corp. There’s no indication yet when the feed will be up again, but Twitter administrators said they would be contacting the Deseret News later today about restoring the Church News account.

Other Twitter accounts have been hacked into recently, including that of the New York Times and baseball coach Tony LaRussa. Unlike many online accounts, like those for Facebook, Twitter does not send a confirmation e-mail when a user changes a password, Crane said. We commented on this problem several months ago after someone had set up a Twitter account to impersonate President Thomas S. Monson. Twitter needs to come up with some solution to this problem or they may find themselves in a lawsuit or alienating their users.

I want everyone to sleep well tonight, the Mormon Lawyers Twitter account has not been hijacked.

Utah Senate Pres. threatens CAN-SPAM against Jack Thompson

Last month we posted about Utah Governor Jon Huntsman’s veto of an ineffectual bill that purported to prevent the sale of M-rated video games to minors. The driving force behind that bill was Jack Thompson, a now disbarred lawyer from Florida who is controversial for the tactics he uses in his campaign against violence and sex in video games. The Salt Lake Tribune is now reporting that Thompson is being threatened with legal action under the federal CAN-SPAM Act for unwanted emails sent to Utah State Senate President Michael Waddoups. Apparently Waddoups was on Thompson’s mailing list and asked to be removed, but Thompson refused. The Senate Site blog, which calls itself “The Unofficial Voice of the Utah Senate Majority,” provides some clarification with an email exchange between Thompson and Waddoups. Apparently Thompson sent an email out that highlighted certain images that were not particularly safe for work, which was the impetus for Waddoups’ removal request.

While this drama goes on, I think it’s important to note that you almost never see the CAN-SPAM Act enforced on a single spammer. The CAN-SPAM Act of 2003 governs commercial emails and prohibits false or misleading header information (To: and From: fields, etc.) and deceptive subject lines. There are also specific requirements that email advertisements be identified as such. Most relevant to this situation is the requirement that email recipients be given an opt-out method. Thompson apparently is refusing to let Waddoups opt out of the emails, thus violating that part of the Act.*

If you are a competent Internet user and have an email account, you have likely noticed that your junk mail folder regularly receives emails that violate these rules. This is due in large part to the fact that the CAN-SPAM Act provides no private cause of action against spammers. It can only be enforced by parties such as the Federal Trade Commission, the Department of Justice, or specific internet service providers. People like you and me can’t sue for the email spam we receive. I don’t know if this is a good thing or a bad thing, but that’s how the Act is written.

For the most part, only flagrant or notorious spammers are sued or prosecuted under the CAN-SPAM Act. However, a defiant and disreputable character like Jack Thompson going up against the head of a state senate seems like one of the few situations in which an individual case of spamming might be enforced, either through FTC fines or by criminal prosecution by the DoJ. However, the email must first be considered commercial in order to fall under the CAN-SPAM Act. I doubt CAN-SPAM applies to an email sent to a legislator advocating a particular issue or viewpoint, as this email seems to have done. We’ll wait and see what happens next.
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* The CAN-SPAM Act also has specific provisions applying to sexually explicit commercial emails, but I don’t think that applies here because accroding to The Senate Site blog, the communication at issue is probably not sexually explicit.

Does the Mormon Church have a position on Internet filtering?

Over the weekend I ran across an article, awkwardly entitled “Mormons demand ICANN plugs net smut hole.” Curious, I clicked on the link, but I almost closed it again when I saw that the article was from The Register. Fortunately, I kept reading and found some interesting tidbits. The article talked about how ICANN, the non-profit organization that controls much of the structure of the Internet, has received a petition (PDF) from a group called CyberSafety Constituency. The organization hopes to be accepted as the newest constituency recognized by ICANN, with the purpose of representing the interests of “families, children, consumers, victims of cybercrime, religions, and cultures.” This is mostly a policy issue, but as is often the case, it is hard to separate law from policy. I realized that ICANN policies are not technically laws — they might even be illegal, since ICANN was not created to make policy decisions — but inasmuch as it controls the architecture of the Internet, ICANN’s word is law.

Kevin Murphy, the author of the article, doesn’t do a particularly good job explaining the situation. He apparently concludes that this is a Mormon initiative becuase the proposal is being led by Ralph Yarro III, a well known (and sometimes controversial) Internet and technology figure who is CEO of the Utah-based SCO Group, Inc. The proposal was authored by Cheryl Preston, attorney for CP80, a Utah-based group that proposes “zoning” online adult content to certain ports. Murphy further points out that many of the commenters in the public comment phase have cited their location as Utah. And as he points out, Utah is 58% Mormon. Boom! It must be a Mormon initiative. (Murphy also throws in a superfluous jab against the Mormon church, citing a recent study (PDF) that found that Utah led the nation in online adult content consumption.)

Kevin Murphy did not mention that Cheryl Preston, the CyberSafety Constituency petitioner, is also a BYU law professor. I think this is probably the strongest argument that this ICANN petition is Mormon-supported, although it still isn’t dispositive — individual Mormons are active in a broad array of organizations or causes. To my knowledge, the LDS Church has never taken a position on how the Internet should be governed, or what architecture mechanisms should be used. Even if the Mormon Church supported some sort of protocol that facilitated content filtering, it isn’t clear what level of filtering it would advocate. One the one hand, the Church generally opposes pornography, but it also has vested interest in maintaining strong First Amendment rights for its own free exercise of religion. I don’t believe there is an official Mormon position on how that balance should be maintained.

For my part, I am reluctant to alter current architecture in the way CP80 proposes. I can see the value in adopting mechanisms that would make it easier for parents to control the content or security threats exposed to their children. But all of these proposals run up against a definitional problem. Even if a functional filtering process is put into place, who decides what content belongs in what “channel”? It’s a problem reminiscent of Justice Potter Stewart’s famous concurrence in Jacobellis v. Ohio, calling it “trying to define what may be indefinable.” I also have some reservations about the proposed CyberSafety Constituency’s purpose and scope, because the purpose cited in the petition is colossally broad and potentially contradictory. But the bottom line is that this initiative is not supported by the Mormon Church. Not all Mormons would support it, and most Mormons have probably never heard of any of the proposed constituency or its supporting organizations.