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Protecting Voters’ Right to Privacy

Overview

Three Americans sued the Trump Campaign for violating their privacy and civil rights.

The plaintiffs are a Reagan-era foreign service officer who grew increasingly worried about the direction of our national politics, a staffer who was making good on a lifelong dream to work in Washington, DC for causes he believed in, and a lottery winner who became a philanthropist to spend his winnings for the greater good.

The complaint alleges that, after Russian hackers stole Democratic National Committee emails, their private information was published to the world as part of a calculated political strategy in which the Trump campaign played a central role. The complaint further alleges that the result was a gross violation of their rights under federal civil rights law, which prohibits conspiracies to injure Americans because of their participation in a Presidential election.

No American should fear that the consequence of participating in our democracy is that their identity would be stolen or their personal, private information plastered on the Internet for all to see.

FAQ

Q: Didn’t President Trump claim he’d already won this case?

A: He did, but as numerous reporters pointed out, he was mistaken. The plaintiffs first filed this case in the United States District Court for the District of Columbia in July 2017. On July 3, 2018, that court dismissed the case on jurisdictional grounds, holding that the District of Columbia was “the wrong forum for plaintiffs’ lawsuit.” The Judge went out of her way in issuing that ruling to state: “it bears emphasizing that this Court’s ruling is not based on a finding that there was no collusion between defendants and Russia during the 2016 presidential election.” Protect Democracy disagreed with that ruling, but has now filed the case in the United States District Court for the Eastern District of Virginia, where the Trump Campaign is incorporated and where therefore the court unquestionably has jurisdiction.

Q. If some of the leaked information was newsworthy, doesn’t the First Amendment apply to the entire release of emails?

A. No. Courts have explained that “to properly balance freedom of the press against the right of privacy, every private fact disclosed in an otherwise truthful, newsworthy publication must have some substantial relevance to a matter of legitimate public interest.” Gilbert v. Med. Econ. Co., 665 F.2d  305, 308 (10th Cir. 1981). This rule makes perfect sense in practice. Someone who writes an article about a matter of paramount interest to the public is not entitled to include a social security number in the article (except in the exceedingly rare circumstance that the social security number itself is relevant to the public). A contrary rule would allow anyone to dump on the Internet the contents of the email account of almost anyone engaged in activity of interest to the public, because they could be confident that at least some of the information would be newsworthy.

Q. Could your case limit First Amendment protections for journalists?

A. No. The First Amendment will continue to protect the press because the First Amendment protects the publication of truthful, newsworthy information. A journalist who receives information that is of public interest has the constitutional right to publish that information, even if the journalist’s source obtained it through unlawful means.

Q. What if a journalist publishes information that she deems newsworthy, but a court disagrees? Would she then be liable?

A. Almost certainly not. Courts are appropriately reluctant to impose liability on journalists who are simply doing their job. That is why they are enormously deferential to the media’s judgment about what is newsworthy and what is not. This deference ensures that the media has “the breathing space needed . . . for the exercise of effective editorial judgment.” Virgil v. Time, Inc., 527 F.2d 1122, 1129 (9th Cir. 1975).

Q. Would a journalist be liable for publishing newsworthy information that she received from a political campaign in order to harm the campaign’s opponent? 

A. No. As long as the information is newsworthy, the First Amendment protects the right to publish it, regardless of the motives of the source—or even of the journalist. This is what the Supreme Court held in Bartnicki v. Vopper, 532 U.S. 514 (2001).

Q. What if the information was stolen by hackers?

A. Again, the First Amendment would protect the journalist as long as the information is newsworthy. Of course, if the journalist participated in the hacking or paid the hackers to obtain information the journalist knew had been stolen, she could be liable for participating in the hacking. As journalists know, the First Amendment is not a license to violate generally applicable laws. But as long as the journalist was not involved in the illegal conduct, she is protected by the First Amendment.

What the Experts Are Saying

John McKay, Former Bush-appointed U.S. Attorney, now Partner at Davis Wright Tremaine

“These plaintiffs allege direct harm caused by having their hacked private data published to the world. They make plausible allegations of conspiracy and are entitled to prove these claims. In my experience most conspiracy cases begin with circumstantial evidence just like this case. Investigation and discovery often proves it is true.”

Laurence Tr​ibe, Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School

“This powerful new lawsuit offers an excellent prospect of holding the Trump campaign accountable for the severe damage it did to many people’s lives by colluding with the Kremlin to invade and compromise their privacy. The complaints factual allegations are deeply researched and impressively current and the legal theories underlying it are ironclad.”

Erwin Chemerinsky, Dean of Berkeley Law

“A civil case only needs to present plausible allegations of harm and a violation of law. That entitles the plaintiffs to discovery to obtain the evidence to prove their claim. The Protect Democracy lawsuit clearly meets these requirements and indeed presents strong claims of wrongdoing.”

Benjamin Wittes, editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution, the author of several books, and co-chair of the Hoover Institution’s Working Group on National Security, Technology, and Law

“[T]he case is clearly justiciable and is unlikely to be dismissed on standing grounds. Unlike plaintiffs in a number of other litigations facing Trump right now, there’s no serious standing issue here. The plaintiffs clearly allege that they had their personal information stolen and released and that they suffered real consequences as a result. There’s just no question that this complaint alleges injury in fact or that it seeks relief of a type courts normally grant. What’s more, the case does not present in any sense a political question or a matter that courts are likely to duck.”

Vanita Gupta, President and Chief Executive Officer of The Leadership Conference on Civil and Human Rights, former Acting Assistant Attorney General for Civil Rights

“Federal civil rights laws have played a key role in protecting Americans’ right to freely engage in our democracy for decades. This case is a perfect application of how they should also play a critical role as bulwarks against the kind of voter abuses we’re now facing in the 21st Century. Kudos to Protect Democracy for bringing this important case.”

John Nockleby, Professor of Law & Director of the Civil Justice Program at Loyola Law School

“This lawsuit might succeed where others haven’t yet in exposing the Trump campaign’s alleged involvement in disseminating the emails hacked from the servers of the Democratic National Committee… If the lawsuit survives the inevitable motions to dismiss – and it seems to have presented more than enough circumstantial evidence to do so – we may have a window into whether, and if so, exactly how, Trump’s campaign and advisers worked with the government of Russia to sabotage the Clinton campaign, support the Russian government’s agenda, and cause harm to these individual plaintiffs.

Andy Wright, Associate Professor at Savannah Law School

“While there are many hurdles to be cleared, this litigation could eventually become a vehicle for discovery of documents and evidence in a judicial proceeding driven by private litigants. That means that a life-tenured federal judge will make determinations based on the Federal Rules of Civil Procedure and relevant substantive law without the potential political chokepoints presented by a partisan Congress and compromised Executive.”

Jacob W. Buchdahl, Partner at Susman Godfrey L.L.P. and former federal prosecutor in the Southern District of New York’s public corruption unit

“[I]t’s a circumstantial case, but a compelling one, in light of (a) the numerous contacts between representatives of Russia and the Trump campaign; (b) the repeated falsehoods spread by the Trump campaign regarding those contacts; (c) the accounts (and now-public emails) describing offers of assistance by Russian actors to the Trump campaign; (d) the pro-Russia policy changes advocated by the Trump campaign; and (e) the established involvement by Russia in the hack itself. No plaintiff at the beginning of a lawsuit can point to a written document setting forth the conspirators’ agreement—but what plaintiffs have here is the next best thing.”

Jed Shugerman, Professor at Fordham University School of Law

“In Cockrum et al. v. Donald Trump for President, the plaintiffs have solid standing and a firm foundation in a statutory claim: long-standing civil rights law protecting voting rights and privacy from intimidation and harm… Each plaintiff has a compelling story of harm, because the hacking conspiracy released deeply private information or sensitive financial and contact information. The complaint sets out step-by-step the facts suggesting the coordination between Russian hackers and the Trump campaign, and it is actually a riveting weaving of many strands and events over the past year.”

Norman Eisen, Chair and Co-Founder, Citizens for Responsibility and Ethics in Washington (CREW), former Ambassador the Czech Republic, and Special Counsel to President Obama for Ethics and Government Reform

“This important case seeks justice for ordinary people who were injured in concrete ways by the Russian attack on our democracy. I applaud the plaintiffs for stepping forward to litigate this matter, and their counsel for representing them. I believe the matter will easily survive a motion to dismiss and therefore allow discovery regarding these critically important matters, and I look forward to that.”

Case Documents

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