This op-ed post by Sean L. Harrington provides opinions that do not necessarily reflect the positions of the Minnesota State Bar Association or its other constituents.
The media and blogosphere is abuzz with news that Barry Ardolf, the disgruntled neighbor who “hacked” in the WEP-secured wireless network of his neighbor and Minnesota lawyer, Matt Kostolnik. Last week, Ardolf was sentenced to eighteen years. See, e.g., Martha Neil, “Neighbor Gets 18 Years for Hacking Lawyer’s Wi-Fi Account, Using His ID to Harass Others,” ABA Journal, July 13, 2011.
There are at least a few lessons to learn from this case: (1) Don’t use WEP to secure your wireless network (it can be hacked in as little as four to ten minutes), (2) law firms benefit from having good working relationships with competent digital forensics investigators, and the most obvious: (3) check with your local police department or lawyer before you act ib any brainy ideas about hacking into your neighbor’s computer network in an effort to frame him for possessing child pornography and threatening the Vice President (or any other purpose).
But that’s not really what this comment is about. Rather, the comment focuses, in part, on whether Internet users could bear defamation liability for statements (in blogs and comments) based upon uncharged conduct contained in a Government court filing, and whether the Government should use more restraint in discussing uncharged conduct that may give rise to various unintended consequences.
Almost as interesting as the underlying facts is the story behind how those facts were uncovered. The Anoka County Sherriff deputy who worked on the case recently provided a case study for the Minnesota chapter of the HTCIA (http://mn-htcia.org). He was joined by cybersleuth Scott Johnson, whose methodical investigation ultimately produced the probable cause evidence needed to obtain a search warrant for Ardolf’s residence. In addition, one of the Minnesota FBI cybercrime unit’s special agents, who participated in the Government’s investigation, provided a separate case study. Attending those case studies and conversing with the presenters has provided additional insight into the case than what has been publicly reported.
The short version of the facts is this: On August 2, 2008, just one day after Kostolnik and his family moved into their Blaine, Minnesota, neighborhood, their then 4–year-old son wandered on or near Ardolf’s property. Ardolf returned the boy, but not before allegedly kissing him on the lips.1 The father confronted Ardolf about the incident. According to Ardolf:
He was upset and demanded that I never go on his property, never to talk to him, his wife, or any of his children under any circumstances. I felt powerless, humiliated, and victimized. That summer, neighbors who had previously invited me to dinner shunned me.2
The boy’s parents reported the incident to police. According to the police report, the mother's perceptions regarding the manner of Ardolf's contact with her son caused her great distress.
In response to the Kostolnik’s reporting of the incident to police, Ardolf engaged in conduct that the Government described as “a calculated campaign to terrorize his neighbors, doing whatever he could to destroy the careers and professional reputations of Matt and Bethany Kostolnik, to damage the Kostolniks’ marriage, and to generally wreak havoc on their lives.” 3 Among other things, Ardolf intruded into the Kostolniks’ wireless account; intercepted their mail; sent fraudulent e-mails to Kostolnik’s colleagues; and in one e-mail (in Kostolnik’s name), threatened the Vice President, Governor Pawlenty, and other officials. In addition, Ardolf planted an image of child pornography into an e-mail and a MySpace page — both in Kostolnik’s name.
Eventually, through the efforts of the private investigator (Johnson, retained privately) and the Anoka County Sheriff, Ardolf was identified as the culprit. The subsequent search of his home yielded the Kostolniks' intercepted mail, numerous computer-hacking books, and compact disks containing hacking software. Several computers were seized, which contained voluminous inculpatory evidence, including evidence of the network intrusion, identity theft, and eight child pornography files (all derivatives of the same image), which Ardolf has used in his campaign, and which files formed the basis of those counts against him.4
It has been reported that Ardolf has no prior criminal record, although the police report (mentioned above) states Ardolf had, at that time, a “Suspense File for domestic assault.” According to both the indictment and the Government’s Presentencing Memorandum, Ardolf’s actions in this case continued a pattern of previous conduct involving another victim.5 The prior criminal conduct would not have been discovered but for the search warrant executed in this case.6
During the trial, Ardolf fired two lawyers in succession, and proceeded pro se. The trial court nevertheless appointed stand-by counsel. Ardolf reportedly withdrew from a plea deal that would have resulted in only two years’ imprisonment, and proceeded to trial. In December 2010 — only three days into the jury trial — Ardolf threw in the towel and inexplicably pleaded guilty to all counts and, as a result, the charges were not put to a jury. Subsequently, he contended in a hand-written memorandum to the judge that his attorney coerced him into doing so.7 Finally, Ardolf coached his children to appeal to the judge’s emotions in granting Ardolf leniency and to conform to Ardolf’s version of events regarding the Kostolnik’s 4–year old boy.8
The result: Ardolf was sentenced to 18 years imprisonment (followed by 20 years’ probation), a $10,600 fine, and forfeiture to the Government under 18 U.S.C. § 2253(a) of the computer equipment and of the Blaine home (which, upon information and belief, has no mortgage and is worth $290,000). The court recommended defendant be excluded from any computer-based activities or technical training during the term of his incarceration. Further, during the 20 years of supervised release, Ardolf must register as a sex offender, may have no contact with persons under the age of 18 (except in limited circumstances), may not be engaged in any computer-related employment, may not "possess or use a computer or have access to any on-line service without the prior approval ofthe U.S. Probation Office," and must obtain gainful employment if possible or, alternatively, work twenty hours of community service.
The extraordinary facts of this case (including both defendant’s conduct and the case outcome), coupled with incomplete media coverage, warrant further discussion.
Ardolf’s presentencing memorandum discloses that his wife died unexpectedly in 2000, and he has been a widower and single parent to three children for the past 11 years.9 As a result of Ardolf's incarceration, the children will be deprived of any meaningful contact with their only surviving parent (as Ardolf himself noted in his Acceptance of Responsibility Statement (“I am leaving my children with no parent”)).10
Moreover, because Minnesota is not a community property state, the decedent-wife’s property (including any contributions toward the paid-for home) may have gone entirely to Ardolf, and all of Ardolf’s assets (which defendant’s memorandum suggest were tied up in the value of the home) now go to the Government. This may mean that the three children will also be deprived not only of their mother’s estate (which they presumably had been receiving by way of a continuing measure of support from the father, or would eventually receive from their father in the future), but also of their father’s income for food, shelter, school books, clothes, and college tuition.
The Government, however, did propose an alternative to forfeiture of the Blaine home: Because "the Government's overriding goal is the removal of defendant from the Alamo Circle neighborhood in Blaine, Minnesota, to provide for the safety of the victims . . . the Government had offered to allow defendant to sell the house and to put the money in a trust to benefit his three children."11 The offer was conveyed both to defendant's current counsel, as well as to his previous counsel immediately after entered his guilty plea. Upon information and belief, Ardolf declined the Government's offer both times yet, had he agreed, the Government would not have sought an Order of Forfeiture.
Notwithstanding that defendant inexplicibly rejected the offer, the Government contended that it would not act on the Order of Forfeiture if the defendant, through counsel, arranged to have the proceeds placed in a trust administered by a neutral trustee to provide for the three children. The trial judge noted, during the six-hour sentencing hearing, that the Government's offer in this regard was unprecedented in his experience. Upon information and belief, Ardolf might now be taking steps to accept the Government's offer, although his standyby counsel was unable to corroborate this for lack of authorization to comment on this or other facts of the case.
Additionally, although Ardolf’s presentencing memorandum contains the obligatory apologies to the court and the victims, it also maintains Ardolf’s continuing objection to assertions contained in the Presentence Investigation Report (referenced in Defendant’s Position Paper as to Sentencing Factors)12 that his contact with the neighbors’ boy was inappropriate, which incident gave rise to the dispute. Although the police report was closed with the notation that no criminal sexual conduct was found (and Ardolf was therefore not charged in connection with the same), News outlets worldwide13 have reproduced a quoted statement contained in the Government’s pre-sentencing memorandum referring to Ardolf as a pedophile.14
As a result of the widely-published but uncharged conduct, several Web sites and forum posts (e.g., http://www.sodahead.com/united-states/man-gets-18–years-in-prison-for-hacking-neighbors-wifi-fair-or-foul/question-1970305/) now freely characterize Ardolf as a “pedophile,” and “child molester.” Many anonymous posters have expressed satisfaction about what other prisoners will likely do to Ardolf as a putative pedophile. Id. Indeed, “Such offenders . . . often are placed into protective custody with other prisoners seen to be under a threat. ‘Once their crime has become known, they usually don’t make it’ without protective custody.” 15
Aside from the collateral consequence, this raises the academic question of whether repeating a statement that is defamatory per se relating to uncharged conduct, which statement and uncharged conduct is memorialized in the Government’s presentence memorandum, may give rise to liability. The Minnesota Court of Appeals has held that, “[I]n almost every circumstance a reasonable listener would believe that calling a person a pedophile imputes serious sexual misconduct or criminal activity to that person. It is, therefore, defamatory per se.” 16
To begin this analysis, one must assume that Ardolf's conduct does not fit within the meaning of “pedophile,” since a defense of “truthfulness” is dispositive. And it is well-settled that one spouse’s statement to the other —even a statement that is defamatory per se— is absolutely privileged.17 Further, unless it falls within the so-called “sham exception,” such a statement contained in any petitioning (such as statement filed with the police) would be entitled to SLAPP immunity.18 Likewise, most states recognize an absolute privilege for defamatory communications preliminary to, or in the course of a judicial proceeding if the communication has "some relation" to the proceeding.19 But a republication of that statement could only qualify for the narrow Fair Report privilege if the republisher relied upon an official public document for the allegedly defamatory information, made clear that the document or statement was the source, and fairly and accurately used the source.
Few (if any) of the news stories, blog posts, or comments have clearly attributed the “pedophile” statement to the Government’s court filing. Nevertheless, there is still the constitutional limitation for matters of public concern, which requires a libel plaintiff to prove that the publisher or broadcaster either knew that the allegedly-defamatory statement was false, was reckless as to truth, or was negligent as to its falsity.20
Significantly, some courts have held that there can be no defamation where plaintiff had no reputation to injure (as may appear to be the case with Ardolf, at the time of this writing).21 But even if so, should Ardolf’s reputation be measured at the time the statement was uttered (when his reputation was not yet lowered by his own conduct)? At the time it was published to a third party (presumably, when the victims were interviewed by the Government)? At the time of the republication? Or at the time of the libel suit? If Ardolf’s reputation is properly measured as of today (lowered by reason of his conviction), would Ardolf nevertheless have a viable cause of action because his current reputation is lowered not by reason of charges and/or convictions relating to the alleged inappropriate contact?
If so, would anonymous posters on Sodahead.com and other sites have reason for concern? In some other countries, the answer seems to be yes: Recently, Google was held by a Brazilian court to have defamed a priest by allowing an anonymous Internet user’s post on Orkut (a Google-owned social networking site), which called the priest a “pedophile.” And a U.S. state court recently ordered the Indianapolis Star to turn over the identities of anonymous posters who made defamatory comments.22 An amicus brief filed by PublicCitizen.org on appeal contends such an outcome is permissible if five standards are satisfied: (1) Give Notice: Courts require the plaintiff (and sometimes the Internet Service Provider) to provide reasonable notice to the potential defendants and an opportunity for them to defend their anonymity before issuance of any subpoena. (2) Require Specificity: Courts require the plaintiff to allege with specificity the speech or conduct that has allegedly violated its rights. (3) Ensure Facial Validity: Courts review each claim in the complaint to ensure that it states a cause of action upon which relief may be granted based on each statement and against each defendant. (4) Require an Evidentiary Showing: Courts require the plaintiff to produce evidence supporting each element of its claims. (5) Balance the Equities: Weigh the potential harm (if any) to the plaintiff from being unable to proceed against the harm to the defendant from losing the First Amendment right to anonymity.23
The issue, therefore, is whether the legitimate purposes to be served by the Government's inclusion of this scandalous matter outweighed the risk of prejudicial effects or unintended consequences, such as those mentioned above.
Ordinarily, a sentencing judge may conduct a broad inquiry, largely unlimited either as to the kind of information he may consider, or the source from which it may come.24 The commentary in the U.S. Sentencing Guidelines Manual expressly permits “reliable” hearsay evidence at sentencing, and courts have concluded hearsay is admissible in sentencing as long as it bears some indicia of reliability.25 On the other hand, in United States v. Booker, 26 the Supreme Court held that insofar as the federal Sentencing Guidelines required a judge to increase a sentence based on facts found by the judge using a preponderance of the evidence standard, they violated the Sixth Amendment right of a criminal defendant to be tried by a jury and to have every element of an offense proved by the Government beyond a reasonable doubt.27 It is this author's understanding that the trial court made a thorough and contemplative assessment of the sentencing guidelines and the statutory sentencing factors, and explicated its decision therefor in detail, which can be confirmed when the sentencing transcript is made available to the public.
Nevertheless, because the defendant in this case was neither charged with, nor convicted of, any crimes relating to the August 2, 2008 incident, there was little utility in its inclusion in presentencing filings. In addition to the prejudicial effect on the judicial process,28 the inclusion of these statements has brought the victims further unwanted publicity. And, although the Government’s presentment is afforded prosecutorial immunity, it has now become the basis for defendant to be (arguably, perhaps) libeled, subjecting the defendant to public scorn and ridicule beyond the moral disapprobation that members of society expect Ardolf's convictions to express.29 Not only may this endanger defendant in the prison population (thereby exacerbating the Government’s obligations and expense in incarcerating defendant for years to come), but it also risks eroding the public’s confidence in the justice system.
1 Government’s pre-sentencing memorandum (Dist. Minn., No. 10–cr-00159, Document 109 at 4 (“With her back to Ardolf, [the mother] heard him plant a wet kiss on [the child]”).
2 Defendant’s Position Paper as to Sentencing Factors, (Document 108) at 25-25.
3 Document 109 at 5.
4 Defendant’s Position Paper as to Sentencing Factors, Document 108 (“[T]he preliminary pre-sentence report at #25 states: ‘Eight files depicting the complete image or the altered image, which was posted on the Myspace.com page, were found during the search warrant on various computer equipment and hard drives’”).
5 Document 109 at 2.
7 Document 80.
8 Document 109 at 25–27. This author has been informed that, at sentencing, the Court noted that it did not take that event into consideration the Government’s assertions regarding the August 2, 2008 catalyst incident, but the author has not yet been able to confirm this because the sentencing transcript has not yet been released.
9 Document 108 at 19.
10 Id. at 24.
11 Document 110 at 22-23.
12 Id. at 20
13 See, e.g., http://slashdot.org/story/11/07/13/0445224/The-Wi-Fi-Hacking-Neighbor-From-Hell; http://www.twincities.com/north/ci_18458202?nclick_check=1; http://www.wired.com/threatlevel/2011/07/hacking-neighbor-from-hell/; http://www.msnbc.msn.com/id/43744533/ns/technology_and_science-security/t/wi-fi-hacker-sentenced-after-cyberattacks-neighbors/.
14 Government’s pre-sentencing memorandum (Dist. Minn., No. 10–cr-00159, Document 109 at 4-5
15 Michael S. James, “Prison is ‘Living Hell’ for Pedophiles, ABC News (Aug. 26, 2003). http://abcnews.go.com/US/story?id=90004 (last visited July 17, 2011).
16 Longbehn v. Schoenrock, 727 N.W.2d 153, 159 (Minn. Ct. App. 2007).
17 Restatement of Torts, 2d, § 592 (A husband or a wife is absolutely privileged to publish to the other spouse defamatory matter concerning a third person. The confidential character of the relationship of husband and wife is the basis for the privilege stated in this Section. Communications between spouses are so completely protected that under no circumstances can they be made the basis of an action for defamation. This is true although the matter communicated is known to be false and the purpose of the communication is altogether improper).
18 See City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 380 (1991).
19 See Restatement (Second) of Torts 587 (1977) (parties); id. 588 (witnesses); id. 589 (attorneys).
20 Gertz v. Robert Welch, Inc., 680 F.2d 527 (7th Cir. 1982), cert. denied, 459 U.S. 1226 (1983).
21 See, e.g., Kevorkian v. AMA, 237 Mich. App. 1, 12 (Mich. Ct. App. 1999) (“In those instances where an allegedly libelous statement cannot realistically cause impairment of reputation because the person’s reputation is already so low . . . the claim should be dismissed so that the costs of defending against the claim of libel, which can themselves impair vigorous freedom of expression, will be avoided.”), quoting Brooks v Am. Broad. Co Inc., 932 F.2d 495, 501 (CA 6, 1991).
22 Jeffrey M. Miller v. Junior Achievement of Central Indiana, Inc., (In re Indiana Newspaper, Inc.) No. 49D14–1003–PL-014761.
23 Dendrite v. Doe,775 A.2d 756, 760-61.
24 United States v. Wallace, 408 F.3d 1046, 1047-48 (8th Cir., May 23, 2005) (quoting Nichols v. United States, 511 U.S. 738, 747, 128 L. Ed. 2d 745, 114 S. Ct. 1921 (1994)).
26 543 U.S. 220 (2005).
27 Id. at 243-44.
28 See Note, A Proposal to Ensure Accuracy in Presentence Investigation Reports, 91 Yale L.J. 1225, 1228 (1982) (recommending rule amendments to allow challenges to presentence reports for both sentencing and parole); Timothy Bakken, The Continued Failure of Modern Law to Create Fairness and Efficiency: The Presentence Investigation Report and Its Effect on Justice, 40 N.Y.L. Sch. L. Rev. 363, 366 (1996) (“‘[A]vailable data on the federal probation officer’s workload indicates that little, if any, verification of information is possible.’”); Robert Hanlon, Hard Time Lightly Given: The Standard of Persuasion at Sentencing, 54 Brooklyn L. Rev. 465, 493–494 (1988) (“the scope of the information allowed — hearsay testimony, uncorroborated evidence, including that from accomplices, allegations of unproven or even uncharged crimes — is so broad as to create the substantial possibility of inaccurate information being considered. The possibility of prejudicial error is exacerbated when much of the information is derived from sources likely to view the defendant in the most negative light — law enforcement officials and criminal prosecutors. In addition, information obtained from codefendants is more likely to be affected by self-serving interests, such as an attempt to transfer blame or placate prosecutors to obtain favored treatment”).
28 Dan M. Kahan, What’s Really Wrong with Shaming Sanctions, 84 TEX. L. REV. 2075, 2077 (2006).