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California community blog subpoenaed in ongoing lawsuit

March 13, 2020

The City of Fullerton, California, filed three deposition orders for testimony and documents from Friends for Fullerton’s Future, a community blog, and two of its journalists on March 13, 2020, as part of its ongoing suit accusing them of violating state and federal anti-hacking laws.

The city’s complaint, filed Oct. 24, 2019, concerns more than a dozen documents that it alleges were illegally downloaded from the city’s account on the file hosting and sharing service Dropbox. The depositions were filed one day after a district judge granted the city a preliminary injunction, barring the blog from publishing, sharing or deleting any of the contested files. The prior restraint was stayed, or paused, fewer than two weeks later.

Joshua Ferguson and David Curlee, two of the blog’s journalists, each received a deposition subpoena ordering them to appear for questioning on March 23 and 24, respectively. A third deposition ordered that the “person most knowledgeable for defendant Friends for Fullerton’s Future” appear for questioning on March 26. The order said topics of discussion would include the structure of the blog, who its contributors are and the sources of all city documents posted to the blog.

Ferguson told the U.S. Press Freedom Tracker that no such individual exists.

“Nobody runs this blog, it’s a blog,” he said. “We do do journalistic work insofar as we report on stories — we do break stories, we do have people that we talk to — but we don’t have an official structure: I don’t have an editor.”

The blog’s attorney, Kelly Aviles, told the Tracker that a deposition order such as this is standard legal procedure when seeking information from an entity. She also said that all three orders were invalid because they were improperly filed after the city had received notice of her clients’ appeal, which stays, or pauses, all pending matters.

Kimberly Hall Barlow, attorney for the City of Fullerton, told the Tracker the orders were filed properly and that they will continue to pursue the depositions as part of the discovery process.

The deposition orders, reviewed by the Tracker, demand that the individual bring numerous documents and communications related to the city’s allegations, including around the use or possession of nearly two dozen files from the city’s Dropbox, the IP addresses for all its computers and electronic devices, Dropbox activity logs and private browser use.

They also command the production of all documents, including communications, relating to the blog’s argument that the city’s Dropbox was accessible to the public at large, and that accessing it was part of routine newsgathering.

The depositions also focus on communications around 15 public records requests, six of which were filed by Ferguson and one by Curlee. Many of the remaining requests were filed by individuals associated with Air Combat USA, Inc., a private company which has sued the city for breach of contract. The subpoenas also request copies of all communications between the blog or its staff and anyone affiliated with the corporation.

Ferguson told the Tracker that the city, essentially, wants to know everything about the blog.

“They want to know IP addresses, who accesses it, how you share data, who you talk to, all of stuff that is absolutely covered under the reporter shield laws… because they’re arguing that we’re a blog, ergo, not a news site,” he said.

Hall Barlow told the Tracker that the city’s intent is not to be punitive or suppress the press, but to retrieve the confidential documents containing the private information of multiple individuals that were downloaded from the Dropbox account.

The subpoenas request an amount of invasive information not typically seen outside of national security cases, said Aviles. The attempt to subvert California’s shield law and reporter’s privilege protections are concerning, she said.

“Not only is the entire case so outrageous that a government agency would come after an organization that was reporting on it in this fashion, claiming that they committed crimes by accessing documents that the city put on a website without any kind of protection, but then all of these procedural maneuverings by the city that have just tried to make it more difficult for the journalists — I think that is especially troubling.”

Aviles told the Tracker that she hopes all filings in the appeal will be complete in the next two to three months.

The U.S. Press Freedom Tracker catalogues press freedom violations in the United States. Email tips to [email protected]

May 12, 2021 Update

The City of Fullerton reached a settlement agreement with local blog Friends for Fullerton’s Future and two of its reporters on May 12, 2021.

The city had alleged in 2019 that FFFF and journalists Joshua Ferguson and David Curlee violated state and federal anti-hacking laws by illegally accessing and downloading city files that had been uploaded to the city’s Dropbox account. Ferguson and Curlee, who were given the link to the file hosting service by the city, maintain that the account was accessible by the general public and that retrieving the documents was part of normal newsgathering activities.

“Based on the City’s additional investigation and through discussions with Mr. Ferguson and Mr. Curlee, the City now understands that documents were not stolen or illegally taken from the shared file account as the City previously believed and asserted,” the settlement agreement reads. “Rather, the documents were made inadvertently available by the City in response to [Public Records Act] requests.”

According to the settlement agreement, Ferguson and Curlee agreed to return or delete the remaining copies of the documents they determined were not newsworthy. The city agreed to then publish a statement on its website acknowledging the error and pay both reporters $60,000 in damages and cover $230,000 of their attorneys’ fees.

Kelly Aviles, the attorney who represented Ferguson and Curlee, told the Voice of OC that the settlement exonerated her clients.

“They [the City of Fullerton] admitted that they were wrong, that my clients never did anything wrong,” Aviles said. “But more importantly they admit exactly what happened, which is the city’s error. They put documents online without having proper access controls.”

While the lawsuit against FFFF was pending, two Orange County Superior Court judges issued separate rulings barring the blog from publishing documents obtained from the city’s Dropbox account. Both prior restraints were ultimately struck down by the 4th District Court of Appeals, Voice of OC reported.

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