from the anonymity-wins dept

A quick update on a story we mentioned earlier this month. Much of the attention in the whole Bricks & Minifigs saga has focused on Reckless Ben and his attempts to expose sketchy behavior by the company, but the fight has also put a lot more scrutiny on Bricks & Minifigs Corporate (BAM), including the creation of a very useful site called The BAM Map, which has been chronicling basically everything terrible that BAM has been up to since all of this went down.

But at the end of the last month, BAM filed a lawsuit against the “John Does” behind The BAM Map and took steps to have them identified, claiming that franchisees and other insiders had violated confidentiality agreements by leaking internal documents that ended up on the site. As we noted at the time, there are protections for anonymity under the First Amendment, and we hoped that the recipients of the subpoena that a magistrate judge approved — in this case GoDaddy and Vercel — would at least inform the operators of the site, and allow them to go to court to try to make sure their rights were protected.

Soon afterwards, lawyer and well-known legal YouTuber Leonard French moved to appear (via local counsel Eric Allen) on behalf of the site’s operator. French then took steps to make sure that the operator of the site could proceed anonymously, followed quickly by a motion to quash the subpoenas, in part by claiming the operator of the site is a non-party to the lawsuit as just the publisher of the site, not a franchisee. That matters because BAM’s whole theory is that contract-bound insiders leaked the documents, and its own complaint describes the site operator as a third party who received them, not as a defendant. As the motion lays it out:

The grounds are these. The Ex Parte Order authorizes discovery to identify the defendants so that BAM may serve them. BAM’s Complaint pleads that the defendants are franchisees and other insiders bound by confidentiality agreements, and it identifies the website operator as a third party that received information, not as a defendant. BAM also pleads that it already has evidence, in its own systems, identifying a suspected source. Unmasking an anonymous publisher on a matter of public concern, and through the publisher its sources, requires First Amendment balancing that BAM’s ex parte motion never presented. And the subpoenas reach beyond identity to the contents of stored communications, which the Stored Communications Act bars.

Finally, French filed a motion to stay the discovery on behalf of the operator of the site, asking the court to halt production while it considers the motion to quash, so that the operator, whom BAM seems desperate to unmask, isn’t outed in the meantime. As French points out, outing the operator of the site could irrevocably harm that individual, since anonymous speech is supposed to be protected:

The harm is irreversible. The Emergency Motion seeks to prevent the unwarranted disclosure of the Publisher’s identity and, through account and upload records, the identity of the website’s sources. If production occurs before the Emergency Motion is decided, the Emergency Motion will be moot in substance. Anonymity, once lost, cannot be restored by a later ruling

As the filing notes, if it later turns out that there actually are grounds to unmask the operator of the site, that can be done at a later time with no real harm to BAM.

Not surprisingly, BAM pushed back on all this, claiming it really, really, really badly needs those records.

Those measures would leave the records BAM needs solely in the hands of third parties while the disclosures that prompted this action continue and delay production of documents and information held by third-party website hosts who do not retain records indefinitely. As such, BAM respectfully requests that the Court deny the Motion to Stay as proposed

All that paperwork seems to have made the court aware of the anonymity interests at stake, and the magistrate has granted an “interim” stay of production so that nothing is revealed before these issues are more fully resolved. The court orders that GoDaddy and Vercel should not produce the info in the subpoena, that BAM can’t serve any additional subpoenas, and if they somehow have received some information in response to the subpoenas, they will sequester that info, not look at it, and not disclose anything that’s in it.

That removes the immediate risk that one of The BAM Map’s hosting companies hands over the operator’s identity before a court has even weighed the First Amendment questions. BAM’s response to the motion to quash is due October 23, with a reply due October 30. Crisis averted… for now. Also, it’s good to see French representing the site operator here, so we know whoever it is is in good legal hands.

Filed Under: anonymity, free speech, leonard french
Companies: bam, bricks & minifigs