WP, I really wish you would take the kids' pics and surnames down.
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Yes, particularly since the site's "Terms of Service" gives the site that right to remove the content at issue, it almost becomes an obligation, no? At this point, Fornits is clearly participating in this event; they're no longer a pure publisher / distributor.
Consider: Getting access to the forum requires one to enter into a contractual arrangement with fornits.com. You've got to acknowledge the following: "You agree not to post any abusive, obscene, vulgar, slanderous, hateful, threatening, sexually-orientated or any other material that may violate any laws be it of your country, the country where “Fornits Home for Wayward Web Fora” is hosted or International Law...You agree that “Fornits Home for Wayward Web Fora” have the right to remove, edit, move or close any topic at any time should we see fit." This language, which every poster has to accept before being allowed to post, means this site has the unquestioned right and ability to remove the items; it's codified in the legally binding contract one has to acknowledge before posting. Oh, and yes, that is a contract; sorry the claim that you were too inept to edit the boilerplate language everybody has to acknowledge before posting on the site does not make this any less of a contract. The TOS clearly states that the site has the right -- and, a court might say, given the nature of the events at issue, both a moral and legal obligation -- to remove posts specifically designed to incite others to threatening, stalking, and similar assaults on third parties.
You may be under the impression that the Communications Decency Act immunizes the site and its operators from adverse legal judgments so long as the site's operators make no attempt to edit content (assuming this winds up in a US court, which, believe me, is not at all a sure thing; did you know there's no First Amendment protection in Canada, which is where the server for this site is allegedly in situ? Here's a tip: When you're trying to immunize yourself against legal action in your own country, put your stuff someplace where legal protections are *stronger* than where you live; Canada has a long and glorious history of sending people to jail for saying things Canadians don't like, such as denying the Holocaust occurred). The operator immunity offered by the CDA is generally true and its a very good and important thing for our society, but there are some very straightforward exceptions The CDA protection ceases to exist when the site operator is fully informed of the offending material -- illegally distributed intellectual property, for example, such as, I don't know, private treatment records -- and does nothing to mitigate the situation. Likewise with material that's illegal on its face, like child pornography. And likewise, material that has been posted here which is obviously designed specifically to violate privacy, incite harassment and stalking, and cause pain and mental anguish to children in the facility upon their release, as well as their parents and siblings. (Siblings. Seriously. There are people who are members of this forum who have posted information designed to be used to harass / stalk the siblings of those children who have been placed in a facility. And the site won't stop it. This is, in a word, indefensible.) The CDA is most especially not applicable *when the Terms of Service explicitly state the that CDA protections do not apply*. Get it? Yes, I understand your argument that you don't enforce the TOS; unfortunately the fact that they are present in your current enforceable contract doesn't give you any place to hide on this issue. Talk to your lawyer. Be sure and mention the multiple postings from site operators clearly demonstrating that they are fully aware of the material at issue and that they have thus far simply refused to remove the material, thereby inviting continued abuse and harassment upon completely innocent third parties, such as the siblings of the children identified in postings.
So if you're not deleting the material at issue out of misplaced concern that doing so will eliminate your safe harbor protection under the CDA, you are most seriously wrong. Talk to your lawyer. Like, now.
Oh, and that bit about no laws being broken since the files were allegedly obtained because an account lacked a password? Really? No laws at all? Not even the federal Computer Fraud and Abuse Act? I ask because the feds bring thousands -- literally thousands -- of charges every year under exactly the circumstances described, because unauthorized access to a US computer system, whether its authentication mechanisms are implemented properly or not, is a federal felony baby. No lie. Hell, under the Computer Fraud and Abuse Act a Los Angeles jury last year found a woman guilty of two felonies for setting up a MySpace account under a false name ; it's an extremely broad statue. The poster is basically trying to argue that because security wasn't implemented properly on the site there can never be a crime with regard to any external interaction with those computers; it's basically arguing that because I left the door to my house unlocked you have every right in the world to stroll in and watch a DVD; you can make a claim like that, but it's not going to be a successful one. And because the operators of this site have been informed that this information was obtained in the commission of a felony, well, that's on them too.
I know many of the people here are effectively judgment proof; they have no significant assets to seize. Still, it's gonna be painful if you wind up handing over ten percent of whatever you've got to the court for the next five years. And that's just a civil action; even assuming you don't get some huge fine, you'll be forced to hire a defense attorney (and good luck finding somebody to handle a case like this without a five-figure retainer; there's a big difference between suing somebody and being sued in terms of your up front costs). But, hey, lets not worry about civil action right now: You're looking at a federal felony conviction (prosecutors aren't likely to pursue this unless somebody actually gets hurt as a result of this, but if that happens, well, you're done). The good news there is at least you can get free legal representation for your criminal trial; you might even be able to stay out on bail until the trial starts a year or two down the road, assuming you can raise the necessary cash. Oh, and if you think it costs the other side out of pocket money for that civil suit, think again: They've got liability insurers who will throw money at very high-priced talent, since getting a judgment against you will help immunize them against future claims against them and will of course be used as prima facie evidence in any criminal case. You're the low hanging fruit here that everybody involved would like to crush, ferment, and get blitzed thereupon. The truth is, you've never been this popular: everybody wants to be the first to nail your asses to the wall, because it either burnishes their claim or improves their defense.
If you don't act, this is going to end very badly.
Note that I'm not associated with any of these programs. I have no idea if any of these programs are any good (I gather from the comments that few people here think any of them are). I was asked to examine this situation by a third party (pro bono) and provide a framework for action, which I've done. I have no dog in this fight, which is why I felt comfortable weighing in here. I make my living catching Bad Guys (really, really bad guys). I feel very good about it and I make a decent living. I can't tell you how many of them work behind international proxies and think they're fine. Or they use encrypted email and think nobody can read it. Here's a tip: Every single commercial version of encryption software available in the United States has an implementation flaw in it. All of them. Seriously. And that's when it's used perfectly; how many people do that? You really need to transmit code, you've got to go with the only things that work: One time pads. Proxies are typically only as effective as the type of speech they're being used to protect. Which is to say, in this case they're not likely to be very effective, particularly if one of the people in a facility or a member of their family comes to harm as result of these postings.
My point is: I don't think you're bad guys. I think you have a point. I also think you are in a bind, since the rules you operate under have allowed someone to expose you to significant liability. And, rest assured, if you don't demonstrate your rejection of this behavior with some alacrity, you will be held accountable. Since I'm (relatively) neutral here, and would just like to see this resolved in an equitable fashion, perhaps you'll take some advice from a stranger: Take the stuff down, then argue about whether to put it back up. Doing it the way you're doing it now guarantees a negative outcome.
