Written By Nicole Macris
BACKGROUND
During the 2016 Presidential Election, an unidentified hacker broke into the Democratic National Convention’s database and stole more than one 100 accounts of donors, staffers, and supporters alike. WikiLeaks later received that information, making it public via its website on July 25, 2016. The hack left of individuals vulnerable and exposed. Three of the affected individuals–Roy Cockrum, Scott Comer, and Eric Schoenberg–have now brought suit to recover for their invasion of privacy.
DISCUSSION
The plaintiffs–two donors and one former DNC staffer– allege that the WikiLeaks disclosures have chilled participation in vital parts of the democratic process, campaign financing, and advocacy. Private identifying information–including social security numbers, dates of birth, addresses, and phone numbers–were made public, and they allege that this now subjects them to a potential lifetime of identity theft and subsequent credit complications.
Moreover, Cockrum’s donations to specific candidates running for public office, state Democratic parties, and the DNC were publicized, which, the Complaint alleges, resulted in a chilling effect with respect to future political contributions. Comer’s emails, discussing his conflicts with colleagues, health issues, and details of his sexual orientation, were also published. The dissemination of their private information and emails, the plaintiffs further allege, resulted in intimidation and fear of using normal technological means of communication for advocacy and financial purposes.
Consequently, on July 12, 2017, the plaintiffs filed suit in the U.S. District Court for the District of Columbia. The allegations set forth in the Complaint assert that the defendants violated the plaintiffs’ privacy rights by disseminating private information about them, in a conspiracy with Russian agents, by way of WikiLeaks, DCLeaks, and Guccifer 2.0, all in violation of 42 U.S.C. § 1985(3). Named as defendants are Donald J. Trump for President, Inc. and Roger Stone, an advisor to the 2016 Trump Campaign.
The Complaint further alleges that the defendants are liable for the public disclosure of private facts, pursuant to D.C. law. In order to prevail on this claim, the plaintiffs must prove “(1) publicity, (2) absent waiver or privilege, (3) given to private facts, (4) in which the public has no legitimate concern (5) and which would be highly offensive to a reasonable person of ordinary sensibilities[.]”
Case law dictates that the dissemination of personal information, such as Social Security numbers and identification information, falls within the “highly offensive” category of private information that should not be made public without waiver. The crux, however, is determining whether disseminating the private information falls within one of the three exceptions, namely, whether it is (1) “crucial to the vitality of democracy,” (2) of public concern regarding current events, public affairs, or (3) information that could protect others or is already of public record. The plaintiffs claim that the information published fails to fall within one of the aforementioned exceptions.
Nevertheless, one crucial question remains: are the defendants culpable for disseminating the plaintiffs’ information and emails? This is where the conspiracy claim comes into play; for without a connection to the third parties, the defendants may not be liable for the published information. Thus, 42 U.S.C. § 1985(3) applies in order to establish the causation of the alleged injuries. The plaintiffs specifically rely on the harm caused by intimidation and injury resulting from supporting one candidate over another, as set forth in the statute:
. . . conspir[acy] to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy . . . .
Despite all of this, the Complaint turns on the connection between the defendants and third parties for the purposes of holding the defendants culpable for the entirety of the lawsuit. Without a finding of the alleged conspiracy, the entire cause of action could fail. Thus, this action depends on plaintiffs establishing their burden of proof with regard to the defendants’ alleged conspired with Russian agents, Gufficer 2.0, DCLeaks, and WikiLeaks.
Several points set forth in the complaint either state or add to the assertion that there was a connection between Trump for President, Inc., Roger Stone, and the aforementioned third parties. While many of the factual allegations set forth in the Complaint have been extensively covered and discussed in the media, the Complaint works to bridge the gap and form the conspiracy relationship by way of logical assertions.
• Paragraphs 9–10, 178, 180: United States government reports conclude that Russia is the culprit of the DNC hacking, and the defendants, thereafter, reaped the benefits;
• Paragraph 11: Trump for President campaign officials had/have ties to Russia, and use these ties to use the information hacked by Russia to their benefit;
• Paragraph 13: The campaign officials entered into agreements with Russia;
• Paragraphs 142–155: Defendants called attention to the hacked, and subsequently published, emails and information, and did so prior to the actual publication by WikiLeaks; and
• Paragraph 182: Defendants (1) denied Russia’s involvement, (2) undermined accountability efforts, and (3) concealed Russian contacts in order to further conceal involvement in the alleged conspiracy.
While this case is in its infancy, it is possible that the discovery, motions, and potential trial may lead to political and constitutional issues overwhelmingly more controversial than the DNC hack or alleged injuries at issue here.
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Sources Cited
Andy Wright, DNC Hack Victims Sue Trump Campaign and Roger Stone, Just Security (July 12, 2017).
Budik v. Howard Univ. Hosp., 986 F. Supp.2d 1 (D.D.C. 2013).
Cockrum, et al. v. Donald J. Trump for President and Stone, Complaint, Case No. 1:17-cv-01370, Dkt. No. 1 (July 12, 2017).
Eric Lichtblau and Eric Schmitt, Hack of Democrats’ Accounts Was Wider Than Believed, Officials Say, N.Y. Times, (Aug. 10, 2016).
Foretich v. Lifetime Cable, 777 F. Supp. 47 (D.D.C. 1991).
Grunseth V. Marriot Corp., 872 F. Supp. 1069 (D.D.C. 1995).
Susan Hennessey and Helen Klein Murillo, Is It A Crime?: Russian Election Meddling and Accomplice Liability Under the Computer Fraud and Abuse Act, Lawfare (July 13, 2017).
Wolf v. Regardie, 553 A.2d 1213, 1220 (D.C. 1989).