But two pages in and plaintiff has already seemingly misrepresented to the court: where does Tor's website show that they are aware of either this particular hidden service, or this site?
There most certainly cannot be any "conspiracy" with someone they don't know about, or any "meeting of the minds" without evidence they've even spoken! That's just plain clear old-fashioned bullshit.
I've never heard of it before and there are no indications that they found the "pinkmeth.com" site hard to serve at all: it's a .com.
Tor should be discharged as a party: they are completely irrelevant to this case.
I'm not familiar with Texas civil procedure, but assuming they follow the federal rules on this point, the complaint as to Tor is probably underspecified. In a complaint, a plaintiff does not have to make out her full factual case, but does need to make sufficient factual allegations to raise a cognizable claim.
To make out a case for civil conspiracy in Texas, you have to show: 1) a combination of two or more persons; 2) an unlawful purpose; 3) a meeting of minds as to the purpose; 4) one or more overt, unlawful, acts; 5) damages.[1]
The plaintiff here alleges that Pinkmeth and Tor had a "meeting of the minds" but it is insufficient to simply parrot one of the elements of the claim. The plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). For example, the plaintiff must allege that someone affiliated with the Tor project provided Pinkmeth with technical support, from which we might infer a "meeting of the minds" as to the unlawful purpose. If the plaintiff can't make such an allegation, the complaint is probably going to get dismissed as to Tor.
> The plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Yes, Texas courts may indeed be starting to follow the federal Twombly/Iqbal doctrine in view of a statutory change a couple of years ago. Recently, in a similar case, GoDaddy.com successfully persuaded a state appellate court to overturn a trial court's refusal to dismiss the plaintiff's complaint on that ground [1].
I think it's incorrect, but I don't think it's "outrageous." The percentage of Tor traffic that involves unlawful activity is, I'd bet, far higher than for the other technologies involved. Moreover, this particular very invasive violation of privacy did not just incidentally involve Tor, but was facilitated by the unique properties of the Tor network. It's like guns: you have a right to have a gun, guns have lots of legitimate uses that must be protected, but gun manufacturers and dealers don't get to hold themselves above all scrutiny.
Fair points -- just to counter, if a gun manufacturer makes guns, and an individual uses a gun to kill someone, the manufacturer is not held responsible... it was the user of the gun who facilitated and carried out the act.
Furthermore, the Tor network is not moderated, nor managed by the Tor project. The Tor project is more-or-less unrelated to the Tor network, and it certainly does not provide any "services" to users. The Tor Project is literally a software project, not a service or platform.
The Tor project simply develops on and provides the Tor core library, from which, other users have taken and made products like TorBrowser.
I think gun manufacturers only get into trouble when they incorrectly make a gun... something that jams and explodes and kills you when you fire it. Obviously not to specifications.
I guess if the TOR network went around and randomly blew up machines that connected over it that would be different...
Simply suing them because someone used the TOR network to hide their website is absolutely ridiculous.
> The Tor project simply develops on and provides the Tor core library, from which, other users have taken and made products like TorBrowser.
Note that this is not exactly true: Tor Browser is developed by the Tor Project (developed by tp.o's (the organization at torproject.org, which is incorporated as "Tor Project") people.)
At least my take on it is that the core network daemon "tor" is one of the things that tp.o people develop, but it's not the only thing/program.
These and others comprise the broader ecosystem of Tor software. Many of the programs are (to use your word) (for all intents and purposes) "managed" by Tor Project (not only the core daemon.)
I heard the state of Texas is also bringing a suit against itself, as well as the inventor of roads, because roads are becomming more of a factor in crimes committed by criminals everywhere.
Yeah, but the suit has been raised in Texas, and plain clear old-fashioned bullshit seems to fly just fine there, going by patent/IP cases and the like.
I think this is going to be interesting - as I think the plaintiff will win in Texas against both parties, and this could end up being a significant tort case, if it ends up in higher courts.
Yes, the Eastern District of Texas is internationally renowned for spurious decisions in patent cases, in particular.
This is not one of those, and it's in Denton County, Texas - I don't know about their reputation otherwise or the geography.
In any case, it is simply wrong: the Tor Project most definitely do not host or provide domain name services to this site (and hidden service descriptors are not domain names but keys - the Tor software project has no control over them).
Cloudflare are the forward proxies to the hosting and would have knowledge of the real host (Tor do not), and their domain name registrar are OnlineNic.com, as 10 seconds of robtex.com lookup can easily show you! 10 seconds this lawyer didn't take.
I can appreciate the plaintiff is upset - rightfully so, in my opinion - if nude pictures of her have been uploaded to Pinkmeth.com without her permission. But the Tor project are software developers and don't have anything to do with the hosting of that site. Her lawyer has, to be polite, made a grave error of judgment.
Her lawyer has, to be polite, made a grave error of judgment.
Meh. The Tor people will spend a couple thousand dollars hiring a Texas lawyer to explain it to them and then they can file again. The plaintiff hasn't lost anything and will gain some free technical advice at the expense of a third party. Maybe the Tor people will even pay them a little cash to make them go away.
And this is why the modern legal system in most countries, but particularly the US, is completely broken.
I guess it is because it is a for profit business, now. Since you can have your lawyer randomly sue people, have them spend thousands in lawyers to defend it, and end up settling anyway because the costs of lawyers over an exacerbated court case with an ignorant judge who will rule however the fuck they want can cost way more.
And honestly, the only way I can think to solve it is the public subsidy of lawyers in general, except in cases between the state and private individuals. In cases like this one, where its between two private parties, you should get at least free legal council, and even then you should be reimbursed for your time in court because it is wasting everyones time.
If the gov't wants to make an overbearing insane "justice" system that allows wanton abuse that creates a legal market as large as most useful commodity markets, they should pay for it. Which means we all pay for it. But at least then people can complain about the insane tax rates to pay for millions of lawyers and judges over literal bullshit.
IMHO, if you bring suit and it comes up short due to lack of homework and/or understanding, you should be fined (and responsible for the other party's legal fees).
I'm tired of people suing the wrong company because their own personal knowledge of a domain is minute, and their fundamental lack of understanding (and sometimes refusal to understand) is the catalyst for the suit.
> TOR also provides services that permit users, such as Pinkmeth, to "publish web sites and other services without needing to reveal the location of the site."
Perhaps they mean a user can use TOR to publish to Pinkmeth.com anonymously?
Sadly, in the US it's common to sue everybody who has some relationship to a case. The idea is that somebody must have deep pockets, and will either settle or you might get lucky to have the court declare the liability "joint and several," i.e., the full responsibility of all of the people getting sued (see, for instance, http://www.coyoteblog.com/coyote_blog/2009/05/the-state-of-t... ).
There are a lot of flaws in this suit ... another is calling whitehouse.com a cyber-squatter. They may be attempting to profit via "misdirection", but they set up a site and business around that domain name.
For those brave enough to visit the site, they have a 'reading' section.
It seems this litigation has been going on since at least 2012 and Jason Van Dyke is still handling it with general attempts at litigating anyone and everyone who can be 'connected' in some way via 'the internet'.
I don't know if that's a common approach for Texas lawyers (one place I've never been) but it looks like this is some sort of ongoing 'war' against pinkmeth by Jason/Shelby. The tweets claiming to be from Jason are all pretty aggressive/out there and searches on Shelby Conklin are inconclusive even though it's a fairly unusual name. I wasn't even completely convinced she exists as described as the person in these papers.
Could this be some sort of publicity stunt ? Or am I just too suspicious ?
IANAL either, but the lawsuit doesn't say that TOR knows specifically about Pinkmeth. Instead the weasel words of "knowingly assists websites such as Pinkmeth (in committing torts)." (Page 3 of 30, or page 5 of the PDF). So not really a lie, but more just a paper-thin excuse that (again, IANAL) I wouldn't expect to really tie the TOR project to it, especially as TOR couldn't stop it if it wanted to.
IANAL myself; but it seems like some form of safe harbor provision applies here at a minimum. Tor (the organization) itself isn't even operating the network; they just write the software that other people then use. It's like suing Adobe in a defamation suit because someone used Photoshop to put your face on a porn star's body.
Edit: After reading the rest of the suit, this is clearly a frivolous suit. The entire filing is pretty unprofessional overall; hopefully the EFF can step in and stop this nonsense.
"Pinkmeth and TOR conspired to and had a meeting of the minds regarding the commission certain torts against Plaintiff more adequately described in paragraphs 5.1 - 5.15 above, as well as certain felony offense described in paragraph 4.8 and 4.9 above. The specific object to be accomplished by the conspiracy was the publication pornographic images of Plaintiff (and other women) on the Pinkmeth website"
I think "conspired" may be a little misguided here.
INAL (but I play on one daytime TV): Their whole claim aginst TOR amounts to:
pp. 2-3
"According to its website, TOR "was originally designed, implemented, and deployed as a third-generation onion routing project of the U.S. Naval Research Laboratory. It was originally developed with the U.S. Navy in mind, for the primary purpose of protecting government communications." The TOR website further states that their products and services are used by individuals "to keep websites from tracking them and their family members, or to connect to news sites, instant messaging services, or the like when these are blocked by their local Internet providers." TOR also provides services that permit users, such as Pinkmeth, to "publish web sites and other services without needing to reveal the location of the site." [...] It is clear from the TOR website that TOR is knowingly assisting websites such as Pinhneth in committing torts against Texas resident..."
p. 5
"However, unscrupulous Internet service companies such as TOR offer "private" or "anonymous" domain name hosting services that allow criminals such as Pinkmeth and its users to escape accountability for their actions. TOR even advertises that with their service "nobody would be able to determine who was offering the site, and nobody who offered the site would know who was posting to it." [...] many unscrupulous companies offer services that allow illegal websites such as Pinkmeth to remain anonymous and difficult for authorities to shut down. Indeed Pinkmeth's Twitter feed advertises its website as being a website "where your state laws don't apply.""
pp. 8-9
"The specific object to be accomplished by the conspiracy was the publication pornographic images of Plaintiff (and other women) on the Pinkmeth website in such a mannner so as to prevent its operators and users from being held civilly and criminally accountable for this unlawful behavior."
This seems to be conflating a few things. The fact that "revenge porn" sites exist outside of anonymous content distribution networks like TOR shows that anonymity wasn't a required component in the tort allegedely commited by Pinkmeth. There are many cases involving sites like that being taken down from public hosting providers. The fact that TOR could allegedly allow defendant to escape prosecution does not equate to a real conspiracy to assist defendant in escaping prosecution. A person hosting a costume party isn't automatically responsible for a murderer taking advantage of the anonymity to commit a crime, without some evidence of collusion.
No evidence the Tor software project knowingly assists 'revenge porn' websites in general in committing torts, either: it publishes software! And see the 'meeting of the minds' part, beyond that, in the actions, p8. Hard to weasel around that. It's specific.
The way I understand the claim, Tor announced "you can do things secretly using our service" and Pinkmeth wanted to secretly do something illegal. The argument is, apparently, that qualifies as a "meeting of the minds." I don't think it will fly, but it's an interesting claim.
State lawyers are well versed in state law. As this is a state case, involving state law, a Texas lawyer would be required to make knowledgable statements on the case. A lawyer of another state or country could likely recognize some similar language, but would not be well versed in Texas law.
This would be like someone commenting on a Java article by saying, "I'm not a programmer, let alone a Java programmer."
But two pages in and plaintiff has already seemingly misrepresented to the court: where does Tor's website show that they are aware of either this particular hidden service, or this site?
There most certainly cannot be any "conspiracy" with someone they don't know about, or any "meeting of the minds" without evidence they've even spoken! That's just plain clear old-fashioned bullshit.
I've never heard of it before and there are no indications that they found the "pinkmeth.com" site hard to serve at all: it's a .com.
Tor should be discharged as a party: they are completely irrelevant to this case.