The Tumblr 500

It’s impossible to blame Daniel Szalkiewicz for doing what was in his client’s best interests. And from the description, what happened to his Jane Doe sounds horrible.

A 27-year-old Bronx woman sued the blogging site in Manhattan Supreme Court last week after a tape of her having sex with her boyfriend 10 years ago, when she was just 17, was posted in December and shared 1,200 times.

The post included the woman’s name and a link to her Facebook page.

She only learned that the private X-rated video was on the site when strange men started contacting her through Facebook with obscene messages such as, “Did you like the way his c–k felt? Sure looks like you did.”

Nice, guy. This is why you spend your time on Tumblr, because lines like this don’t endear you to actual living women. But as Julia Marsh at the New York Post explains, she didn’t take it lying down.

A victim of online “revenge porn” will get her own chance at retribution — going after more than 500 Tumblr viewers who got their kicks watching the non-consensual video.

The first-of-its-kind ruling, handed down by a Manhattan judge Wednesday, ordered the social networking platform to disclose the personal information of the hundreds of people who have shared the sex video — which featured the victim when she was an underage teenager — so she can sue the users over the privacy breach.

“I’m directing Tumblr to disclose to petitioner all the account registration information concerning each individual account that re-blogged the images and videos that are at issue here,” said Manhattan Supreme Court Justice David Cohen.

Szalkiewicz went after Tumblr to compel the disclosure of the identities of viewers. Not the person who uploaded the video, but the people who watched it. And Justice Cohen granted the application. On what basis?

Szalkiewicz said Tumblr hasn’t taken the matter seriously.

“Tumblr’s office is 1.5 miles away and they haven’t even bothered to show up today,” he said in court.

That’s right, Tumblr was sued, presumably served, and its response was the big shrug. It didn’t bother to respond. It didn’t show up. Justice Cohen granted the motion on default, so if you happen to be one of those 500 viewers who watched the video, and whose identity has now been ordered disclosed, it’s not as if anybody lifted a finger to oppose the motion. Tumblr doesn’t care about you any more than it cares about Jane Doe.

Beyond those involved in this bit of botchery, is there any significance to this order? Out trot the “experts” to seize the moment.

Experts say the ruling could have far-reaching privacy implications.

“I’ve never seen anything quite like this before,” said Darius Maxwell Fisher, head of the reputation management firm Status Labs. “This could be the first of many issues like this where your anonymity is stripped from you.”

Does this mean he’s never seen a default judgment, or he’s never seen an internet company like Tumblr completely ignore efforts to reveal the identities of its users? And, not to get too uppity, but by what stretch of reason does a guy at a reputation management biz enjoy the characterization of “expert”? It’s not like he’s a lawyer.

On the other hand, what does a lawyer have to say?

Reps for Tumblr did not return messages seeking comment, but Ohio attorney Aaron Minc, who specializes in internet law, said the company will likely appeal the order.

“It seems really overbroad. If I were Tumblr I might object to it just on the basis that producing all that information within five days for 500 people seems a bit burdensome and unreasonable,” Minc said.

But he added that the merits of the ruling would probably survive an appeal.

“Are the identities of people who re-blog this stuff relevant? I would say yes,” Minc concluded.

If you’re asking the same question as any knowledgeable lawyer, then who the hell is Aaron Minc and why would he say anything so idiotic? His website, Defamation Removal Law, explains a lot.

Aaron Minc is a nationally recognized leader in the specialized area of Internet defamation. His work is on the technological forefront of removing damaging content from the Internet, combating cyber-attacks, and uncovering identities of anonymous Internet users. Aaron has developed a cost-effective cutting edge legal solutions for his clients’ most pressing and damaging online problems. He is the go-to attorney in his industry or “fixer” for the most malicious and hard to solve internet defamation crises.

He’s a “fixer,” which should clear up any doubts about his expertise. Then again, where’s the “cause” organization’s assessment of the efficacy of this default order, the other “go-to” defender of online privacy?

Courts in the Netherlands and Japan have issued similar rulings in the past. In the US, federal courts routinely sign off on orders unmasking users accused of copyright violations, according to Alan Butler, senior counsel at the Electronic Privacy Information Center.

Did EPIC Senior Counsel Butler* really say that federal courts “routinely” allow “unmasking” orders? And what do rulings from the Netherlands and Japan have to do with anything, anyway?

This default judgment is of no precedential value, by definition, and it’s from a New York State court, such that it would be inapplicable to any other state or federal court. New York already has a test for the disclosure of anon users, but it would require Tumblr to appear in court, oppose disclosure and make its case.

Tumblr couldn’t be bothered. It’s going to suck to be one of the 500 disclosed, though few will cry sad tears for the misery it may cause you given the misery the video caused Jane Doe. Still, this isn’t the law, and shouldn’t have happened. At least not this way.

Blame Tumblr, for both its hypocrisy toward keeping its own home clean as well as protecting the identity of its users. And if you watched the vid to get your rocks off, your hands are unclean as well.

*Butler is senior counsel to EPIC, the Electronic Privacy Information Center, which is dedicated to pretending to protect women from “revenge porn” rather than protecting the privacy of internet users, like the EFF.

H/T Jim Tyre

35 thoughts on “The Tumblr 500

  1. B. McLeod

    Experts. “Well, we haven’t seen this before. It could be something, something.” I love it.

  2. PDB

    Given that Tumbler blew off responding to the petition, are they likely to actually respond with the identities? Would a contempt order have any significant adverse affect on them?

    1. SHG Post author

      At some point, they will either move to vacate the default, oppose the motion for contempt or comply. If held in contempt, there will be a cost.

  3. Dan

    I’m not a lawyer, so forgive me if this misses some obvious things, but it seems as if the Post story conflates clicking “play” on the video (“going after more than 500 people who watched it”) with clicking “reblog” on it. It sounds like the 500 she’s seeking to identify are in the latter camp—that is, they personally redistributed and republished the video (Tumblr’s interface allows them to do this with one click, but it’s still clear to Tumblr users that this is what they’re doing). Is there a legal distinction between the person who originally uploads the video to the internet and someone who chooses, upon discovery of it, to post it to a new forum?

    Is the issue that the burden of notifying these 500 users is on the plaintiff under New York law, regardless of who uploaded the video, and this ruling instead put that burden on Tumblr (who ignored it)? I’m just hoping to understand if the analysis changes if “watch” and “reblog” aren’t conflated as in the Post piece.

    1. SHG Post author

      No, you didn’t misunderstand anything. It’s unclear what these 500 did, and the language appears to do exactly as you say, conflate the two. There is no detail to suggest that they “reblogged,” meaning reposted the video on other sites, so while the word is used, there is nothing to suggest it’s been used accurately. And it would be extremely surprising and highly unusual if 500 people reposted a video on other sites. There’s just no point to it.

      As to the analysis changing, the answer is no, but not because these aren’t vastly different things, to view versus reblog. The reason is neither should be the target of a disclosure order under existing law.

      1. Joseph

        To “reblog” something on Tumblr specifically means to have it show up on your own Tumblr page, much like retweeting it. This doesn’t fall into the category of “other sites”, but as I understand it you are considered the publisher of material that appears on your blog even if it is hosted by Tumblr.

        This hasn’t been said anywhere in any of the articles, but given that the woman in question was a minor at the time, would that not make the video child pornography? The laws about it don’t seem to make age distinctions other than using “under 18” as the catch-all.

        1. SHG Post author

          My lack of familiarity with Tumblr is showing. That said, it changes nothing in the analysis, though (as noted above) the age would seem to matter as to child porn.

    2. Dan T.

      Given how sites these days do a lot of shoving of content at people (including auto-playing videos) in the name of promoting greater “engagement”, it’s greatly problematic that somebody might incur liability for merely viewing something, when they might not have even been trying to do so in the first place.

      1. TheHaywardFault

        To my shame, I am a Tumblr User, and I am here to inform. Videos on tumblr that are hosted by tumblr (as in, not embedded videos hosted on youtube or vimeo) do in fact auto play on normal web-browsers, but they do so with the sound muted by default. You have to turn that on yourself. I usually don’t even bother turning on the sound of tumblr videos because they usually don’t need it and often don’t have it.

        However, you will note that the quote from the Judge mentioned that only users who had “reblogged” (equivalent to re-tweeting something on twitter) the images and/or video in question will be exposed to a privacy violation. Merely scrolling past the video or images is not enough to get your info snarfled. You are safe. Probably.

        I am of course assuming that the quoted statement implicitly excludes people who were merely exposed to it, and who did not take action to “reblog” it. Given that I am not a lawyer and have not seen the actual legal whatsit, I cannot say with anything more than reasonable certainty.

          1. TheHaywardFault

            No more than a retweet on twitter would be. Tumblr is just twitter without arbitrary character limits.

      1. wilbur

        Sometimes the jokes write themselves.

        And that’s OK. There is still the art of presenting them. It’s why the straight man in vaudeville got top billing and 60%.

  4. maz

    Admittedly off-topic, but I’m somewhat surprised there hasn’t been an appearance yet by a headline-hungry prosecutor with an armful of freshly printed indictments for production and distribution of child pornography — all ready to go, except for the name….

    1. SHG Post author

      Given that she was 17 at the time, that’s true. It gives rise to a very different issue than revenge porn.

    2. Patrick Maupin

      Maybe the headline-hungry prosecutor is at least smart enough to get his ducks in a row before he goes public, and Tumbler hasn’t responded to the civil litigation yet because they’re still dancing for the prosecutor.

  5. BJC

    Since, like a previous commenter, I found myself questioning whether the NY Post had accurately stated the suit or the order, I tried to look it up on the public NY Supreme Court database iScroll. If it’s the Jane Doe v. Tumblr that’s index no. 153709-2017E (filed on the right date and the lawyer matches), it’s sealed.

    So, has anyone in the NY Post article other than the plaintiff’s attorney actually seen the complaint or the order? Did the attorney seal a case to protect a client and then distribute sealed documents about his client’s case to the press? Did the NY Post then pass those documents on to their experts?

    If so, nobody seems to really care about the client’s privacy. If not, the Post and/or all the quoted experts are playing telephone with how the plaintiff’s attorney described the case.

  6. Scarlet Pimpernel

    “That’s right, Tumblr was sued, presumably served, and its response was the big shrug. It didn’t bother to respond.”

    Did Tumbler get sued? From reading the article it sounded more like it was a lawsuit against Does 1-500, with an ex-parte motion for expedited discovery from a third party (Tumbler).

      1. the other rob

        It’s almost as if Tumblr assumed that this was a S230 CDA liability case and didn’t notice that it was being asked to disclose.

        But even that doesn’t make sense, as somebody would still have to turn up to argue that immunity applied.

        Surely it can’t be in such dire financial straits that, having decided to throw the (admittedly unsympathetic) users under the bus, it chose to allow a default judgment rather than pay somebody to say nolo contendere?

  7. The Guy Who Knows

    Everyone has the facts all wrong. It’s kind of funny.

    The case is a pre-lawsuit discovery action to try and find out the identity of the person who posted the video.

    Tumblr wasn’t sued. That’s why they didn’t show up. They don’t care, they get subpoenaed all the time.

    The lawyer asked for an order not just to disclose the OP’s information, but also the people who shared the post or re-blogged or “re-tumbld” it. It’s basically like pressing the “share” button on facebook or re-tweet on twitter. But with Revenge Porn video’s, on Tumblr. He’s going to try and sue them for IIED. Clearly, the people who shared the video are not liable (easily immune under CDA S230).

    The NYpost reporter failed miserably trying to describe the legal aspects of the case in the article, which is why likely all the quotes from experts and the article seem idiotic as well.

    Kind of makes this whole discussion a waste.

    1. SHG Post author

      The discovery action against Tumblr is suing Tumblr, but for discovery rather than damages. I don’t think that was confusing. On how Tumblr works, I defer, since I have no clue, but your analogy to RTs helps. Whether the CDA safe harbor will protect the sharers from liability isn’t the issue, yet, but that their identities will be disclosed for sharing a sex tape of a 17 year old, and being sued for IIED such that they will be embarrassed and forced to defend. But this is the point:

      Tumblr wasn’t sued. That’s why they didn’t show up. They don’t care, they get subpoenaed all the time.

      They weren’t but they were. They get subpoenaed by law enforcement, but not by litigants for disclosure. The usual course would be for Tumblr to oppose, whether as a matter of policy or public relations, or notify the affected users to give them an opportunity to oppose anonymously. They did neither.

      What they don’t care about here is the order compelling disclosure, which means that their users will know that their identities won’t be protected, so don’t use Tumblr unless you want Tumblr to hang you out to dry. This makes the discussion worthwhile.

      1. The Guy Who Knows

        Not quite Scott. The Order against Tumblr is unremarkable. People have information disclosed like this in defamation cases or Copyright cases from Tumblr all the time. Tumblr gets subpoenaed civilly all the time. This is an everyday occurence to them and they could care less. It’s not the same thing as being sued at all. They are nothing more than a nominal third party with no liability being subpoened for records.

        Here is just another example of a court ordering disclosure in another case that I found from one Google search in a copyright case:

        They aren’t showing up because Tumblr has standard internal procedures for handling these types of matters. And it doesn’t include showing up. I guarantee that they will alert all of their users and give them time to show up and contest. At least a couple weeks. That’s what every big social media and company like it does. They won’t care at all about the timeline and will completely disregard it and there truly isn’t a thing the lawyer will be able to do about it. It’s going to take them months to produce. If any of the users object to having their information disclosed they will appear and object to the order anonymously through counsel. If the Plaintiffs seek a contempt order Tumblr will simply say, sorry, doing our best, thanks for your patience.

        So all is not wrong with the world.

        The issue, however, is that these users are being identified not because they had something to do with publishing or recording the child porn or have any liability under any theory of law for re-blogging something, but because the stupid Plaintiffs lawyer is trying to use the toxicity of being sharing a revenge porn video on Tumblr to likely force settlements to not be named in a frivolous lawsuit. Or maybe he’s bone-headed enough to actual believes they are liable.

        Regardless, it’s nothing more than a shakedown.

        That’s wrong and worth writing about. Unfortunately, this blog article misses the point and the facts making the discussion points above a wast of time. Although the source was inaccurate, so not your fault.

        1. SHG Post author

          Having been through this with Facebook and Twitter in the past, where they appeared and opposed, as well as notified the targets, I’m not persuaded that this laissez faire approach to default should be shrugged off so easily. And the DMCA takedown notice is a very different animal. I appreciate your view that the default is no big thing, and that it will be fleshed out in the execution and subsequent notification to the targets, but even if it happens more than I’m aware, it remains an issue worth noting, as does the plaintiff’s overreaching to try to bring in the rebloggers.

          As for the source being inaccurate, that’s pretty much a given in this biz, but it’s all there is to go on. Nonetheless, if I write about it, I’m to blame.

        2. Jim Tyre

          I hesitate to challenge anything from someone who is clearly The Guy Who Knows, and I’ll not repeat what SHG has said already. However:

          I guarantee that they will alert all of their users and give them time to show up and contest. At least a couple weeks.

          First, how exactly do you offer that guarantee? Second, about that “a couple of weeks” thing, the articles states clearly that Tumblr was given 5 days to comply with the order. If the article is correct on that point, how do you square 5 days with a couple of weeks?

  8. The Guy Who Knows

    As to Scott’s response, I wonder whether he has subpoened these companies he references in civil cases or criminal cases. If its the later he then has no idea how these companies handle these things in civil matters (as I have zero clues about criminal case subpoenas). I’m assuming this is the case.

    As an attorney who has subpoened the companies he references and others, including Tumblr, dozens and dozens of times (probably 100+ by now), I have never once had a company appear and object in court, ever. They shift that onus on their users unless the information being requested is unlawful (for example subject to the SCA or EPCA, etc.), then they object. Notice of 14 days is always given (if not more) except in the rarest of cases if there is no contact information available to give notice.

    Further, I didn’t give you an example of a “takedown notice”. It’s a 512(h) subpoena. It’s a real subpoena. Not a takedown notice. Don’t be confused by the fact that it’s a subpoena under the DMCA statute. Not meant as an insult as I’d be out of my league talking about a hell of a lot of things, but you are making it readily apparent that you have zero experience or knowledge in these matters. The case from the link I sent was federal, so becausue there was no identified defendant the subpoena was requested to be ordered no different than in this RP NYC case (although the court just formally ordered the production in this Tumblr porn case with no subpoena vs. instead authorizing and ordering a subpoena to be issued in the link, but effect is 100% the same, it’s an uncontested subpoena request ordered by the court on a third party). Take in mind though in most cases no court would be involved in a third party subpoena. Especially most all state court proceedings or federal where the Defendant is identified). A party would just sign and send. Which is “equivalent” to a default you continue gripe about for some reason, as there is no contest or notification as you keep desiring in third party subpoenas.

    The fact that you keep harping on a “default” is pointless and the issue is completely irrelevant. As I mentioned above this is really no different than a third party subpoena which are issued by an large uncontested (or as you identify, by default). This entire issue is of zero consequence. It’s a regular everyday occurrence in these matters.

    As to Jim,

    Tumblr is a business that regularly get requests of these nature everyday. The fact that instead of just subpoenaing the company without court intervention or order… within five days… doesn’t change the fact that the request is business as usual for them. It’s just another request like any other they handle regularly without the court ever getting involved. There is no reason that this particular situation is special. The order is issued. They are then served. And then they process it just like they process every other request the exact same way. It’s a big business they are incapable of responding or acting in any other way.

    I can guarantee all this is the case because I’ve subpoened Tumblr and many others probably hundreds of times by now. It’s laughable that the attorney (or the court for that matter) thinks they will get a response in five days. Tumblr don’t care. They will be lucky if they will even get someone from Tumblr on the phone or to respond by e-mail to acknowledge service within 7 days. Tumblr will then say.. gosh.. that’s a lot of information and not a lot of time. We are going to comply but it’s going to take some time for us to respond to this, is that OK with you? Also, we plan on notifying our users before supplying the information because we always do that. We give them 14 days to appear and object. That’s OK right? In which case it doesn’t matter what the other side says. He can burn time and fees to accomplish nothing and say no I want it NOW.. and litigate the issue for weeks/months while they process nothing and it will still take them weeks/months to respond.. or just suck it and be patient like everyone else and not be stupid. As the lawyer in the article suggested if the request was WAY bigger than usual and burdensome they might request fees before responding. As long as the parties played nice, no one goes to court for any reason.

    I guess I will couch my “guarantee” in that, the users will be notified for the most part but it’s not guaranteed they will receive the notification. Tumblr will automatically send the notification as part of the process. However the notification won’t necessarily always reach them. It will be sent to whatever e-mail the users registered there account with. If it’s no longer valid or they don’t check it, the notice will not be received. That being said, if the information isn’t valid, how valid and valuable is it to the Plaintiff’s attorney to identify them?? identification then becomes a non-issue. Who knows though, they may still get valid IP information

    But regardless, the outrage and complaints in the article are completely misdirected and mis-informed (albeit mostly through fault of the reporter who did a bang up job on the case facts). But my point remains remain the same, especially the one that the default issue is completely irrelevant and a massive waste of ink.

    The real issue is that some schmuck attorney in NYC is treating revenge porn as the next copyright troll litigation strategy, however it’s worse because unlike copyright where the user’s actually have some sort of liability arguably for downloading copyrighted content illegally, and suing them and outing them is just bullying, here all these people did was press the “share” button and this cockroach is going off exposing people and trying to shake them down over a frivolous IIED claim. Hell I’d pay a few grand not to get named in a lawsuit involving child porn, liable or not. But I guess I’ve stated that more than enough now… DEFAULT is clearly the problem and the point.. (smh)

    – TGWK

    1. SHG Post author

      A couple points. First, make your comments much, much shorter and use the reply button. Nobody wants to read a book by you and you don’t get to start new threads with each comment any more than anyone else. Second, you don’t get to claim you’ve done hundreds of these when you’re anon. That’s how anon works. Third, every company doesn’t default. That’s not my experience. Jim’s special counsel at EFF. That’s not his experience.

      So, your experience is different? Fair enough.

      1. Jim Tyre

        It’s hard to take him seriously when he’s anon and speaks with such broad strokes. But yes, real lawyers with real names with the real EFF have dealt with this sort of thing often. Indeed, we’ve counseled many tech companies on best practices, and many follow our counsel. There may be outliers, but most tech companies do not follow the practices that TGWK deems common.

    2. Sgt. Schultz

      Dude, you could have just said “my experience is X” in the first place, instead of being a long-winded pedantic asshole. You’re a bore and likely a phony.

  9. Pingback: Should Tumblr Be Forced To Reveal 500 People Who Reblogged A Sex Tape? – Miller Trades

  10. Ex Tumblr User

    I know nothing of the law, my very big question to all the experts in this discussion is what happens to the blogger(s) if tumblr can’t reach them, that the email is either never visited or deleted.? Does Tumblr then release the account information, email, username, isp etc.. Do they get named to the lawsuit and subpoenaed? What recourse would they have in this “frivolous lawsuit”? From what I’ve read New York does not have a “revenge” law on the books.

    1. SHG Post author

      Sorry, but this isn’t a free legal advice website. If you’re one of the 500, the EFF is coordinating lawyers to defend the users that Tumblr threw under the bus.

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