Judge orders Twitter to reveal identity of user whose alleged FBI forgery fueled Seth Rich conspiracy

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A federal judge ruled that Twitter must reveal the identity of the person behind an anonymous account in response to a subpoena from slain Democratic National Committee staffer Seth Rich’s brother, Aaron, who alleged in a defamation lawsuit that the unnamed user may have forged an FBI document to help fuel a conspiracy theory about his brother.

U.S. Magistrate Judge Donna Ryu of the U.S. District Court of the Northern District of California issued a 10-page order on Tuesday in response to Twitter’s monthslong efforts in court attempting to block the subpoena that was issued as part of Aaron Rich’s Washington, D.C.-based lawsuit filed in 2018 against former Fox News guest Edward Butowsky, right-wing activist Matthew Couch and his America First Media company, and the conservative leaning Washington Times. Twitter has been ordered to provide the identity of the Twitter user to Aaron Rich’s legal team later this month.

Seth Rich was killed the morning of July 10, 2016, in what authorities say was a botched robbery. Conspiracy theorists seized on Rich’s death and spread the rumor that he was the source of the stolen DNC emails obtained by WikiLeaks. Julian Assange, the WikiLeaks founder who is now facing extradition to the United States for a host of charges, helped promote the conspiracy theory. The U.S. government concluded, however, that the DNC emails were stolen by Russian military intelligence, and there’s no credible evidence pointing to Rich’s involvement.

“The facts here are straightforward. Hiding behind the @whysprtech Twitter handle, an anonymous user disseminated a forged Federal Bureau of Investigation report and provided other false information regarding Seth Rich. The forged FBI report disseminated by @whysprtech came on the heels of an infamous and retracted Fox News May 16, 2017, article alleging that an FBI report existed linking deceased Democratic National Committee staffer Seth Rich to DNC documents that were published by WikiLeaks in the summer of 2016,” Aaron Rich’s lawyer Benedict Hur told the court in May. “Despite the fact that this report was obviously forged (as even a cursory glance at it would reveal), the forged FBI report may well have been the ‘report’ that was referenced in the retracted Fox News article. Further, defendants in the D.C. Litigation — Edward Butowsky, Matthew Couch, and his nonprofit organization America First Media — appear to have relied upon it to spread false information about Plaintiff and his family in support of a growing conspiracy theory.”

Rich’s parents, Joel and Mary, filed a lawsuit against Fox News in the Southern District of New York in March 2018, alleging employees of Fox News swept them up in a deceitful scheme to promote the conspiracy theory and that Fox News let it happen. The lawsuit alleged that Butowsky and Fox News reporter Malia Zimmerman “induced” Rich’s parents to hire investigator Rod Wheeler to help “solve” their son’s murder and that the three colluded “to pursue and develop a fiction” that painted Rich as the DNC leaker. Fox News published an article in 2017 titled Slain DNC Staffer Had Contact with WikiLeaks Say Multiple Sources. The story promoted baseless claims that Rich was involved in stealing the DNC emails. Fox News retracted the piece, saying it “was not initially subjected to the high degree of editorial scrutiny we require for all our reporting.”

Rich’s brother filed a separate 2018 defamation lawsuit in the nation’s capital, and Twitter, Assange, and others have received subpoenas. The Washington Times had published an article in 2018 by retired Adm. James Lyons claiming that “it is well known in the intelligence circles that Seth Rich and his brother, Aaron Rich, downloaded the DNC emails and was paid by WikiLeaks for that information” but admitted in its retraction that it “now does not have any basis to believe any part of that statement to be true.”

Twitter asked the court to block Rich’s subpoena in April, arguing through its lawyer Julie Schwartz that the subpoena “seeks identifying information to potentially unmask a Twitter account holder who engaged in anonymous speech on Twitter’s platform” and claiming that “Twitter’s primary goal is to ensure that the Subpoena not be used to chill anonymous speech that does not rise to the level of defamation.” Twitter said it asked that the subpoena “be quashed or modified” so that Rich “receives identifying information for the Twitter account at issue only if Plaintiff has satisfied the First Amendment to the U.S. Constitution’s requirements for unmasking anonymous speakers.”

But Rich’s attorney responded in May, saying the subpoena was “targeted solely at information necessary to permit Plaintiff to identify the individual using the @whysprtech user-handle in order to pursue demonstrably relevant discovery from him or her directly” and noting that the subpoena requested “all user and account information concerning the Twitter account @whysprtech that was in use on May 29, 2017 or had the UID 868729045881696256” but specifically “excluding the contents of any and all communications sent to or from the @whysprtech account.”

The magistrate judge sided with Aaron Rich this week, noting that she applied a four-prong test to the subpoena — whether it was seeking information issued in good faith, whether the information sought relates to a core claim, whether the identifying information would be directly relevant to that claim, and whether information needed to establish that claim cannot be obtained from another source — and concluded that “all four of the … factors favor Rich.” Ryu said that “it is reasonable to infer that information relating to the account will be relevant to the claims and defenses in the D.C. Litigation, negating an inference of bad faith,” and so Twitter was ordered to respond to the subpoena by Oct. 20.

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