Sunday Morning Hot Tea - No. 16
Teaching Without Teaching and the Legal Ramifications of Hunting Lawbreakers Online
Welcome to Sunday Morning Hot Tea where I write about a little something up top then answer a legal question for you down below. This week – teaching without teaching and the legal ramifications of looking people up online.
In this edition
Topic of the Week – Vocal Coach
Legal Question – A Crime for a Crime
TOPIC THIS WEEK: Vocal Coach
I promise this newsletter is not all about people who die. However, this week is going to be about another person who has died. We lost my high school speech teacher, Coach Copeland, this week. He was a mainstay in my hometown. A beloved football coach. A family man. And a damn fine comedian.
I only had him for one semester. I don’t even know if he would have recognized me if we would have seen each other again. Doesn’t matter to me if he would have remembered me or not. I remembered him.
He started every class with this poem that he recited from memory. If I’m not mistaken, I believe he even had the saying stitched onto a throw pillow which he kept in his classroom. It went:
“This is the beginning of a new day.
God has given me this day to use as I will.
I can waste it or use it for good.
What I do today is very important because I am exchanging a day of my life for it.
When tomorrow comes, this day will be gone forever, leaving something in its place I have traded for it.
I want it to be a gain, not a loss.
Good not evil.
Success, not failure, in order that I shall not regret the price I paid for it.”
It was cheesy at the time, but it really stuck with me. I mean really stuck. Every single one of those words live in my brain to this day. I cannot remember where I put my keys or what I had for dinner. I constantly forget to reply to texts. I will forget people’s birthdays and my own age. But somehow, I can remember every word to this poem from my tenth-grade speech class from 2003. When I heard Coach died this week, I wanted to know more about the source of this mantra, this prayer, that began each of our classes.
Growing up in the conservative Christian town of Mesquite, Texas, I assumed this refrain was from the Bible. If not, I figured it was at least Bible-adjacent. Turns out that assumption was incorrect. It is the words to a poem formerly called, “A Salesman’s Prayer” – later renamed “A New Day” by a Texan accountant/car salesman named Heartsill Wilson. Because of course it was.
Even if the words weren’t from the Bible, I have absorbed them like gospel. I think about them when I’ve lied lazily on the sofa for a full day, or when I’ve spent eight hours helping clients. I’ve traded a day of my life for this day – was it worth it? In both cases, yes. I think sofa-lying time is just as important as productivity time. Self-care, baby!
Coach Copeland was also the first person to share with me this Teddy Roosevelt quote:
“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.”
Again, I remember most of this quote verbatim, yet I couldn’t remember the route I took on my walk earlier today. It meant that much to me. Whenever I am faced with criticism, which as the podcast grows, is becoming more frequent, I plan to turn back to this quote. Not just the words, but the person who taught it to me.
Coach Copeland was, to put it plainly, a real hoot. He had a leather face with deep crevices cut into it from decades squinting his striking blue eyes toward a football field. He had a laugh that sounded wicked but pure. When something got him tickled, his cheeks and eyebrows would draw up, and he would wheeze from deep in his belly.
My career is lawyering, but my passion is storytelling – on the show, in writing, with friends and family. I love a funny story well told. The semester I spent in Coach Copeland’s class was less a speech class and more a masterclass in storytelling.
In addition to his inspirational quotes, he captivated us with his Vaudeville-style pun stories. He once told what I have learned is called “the longest joke in the world.” It involves a talking snake and a lever that could bring about the end of the world. He told the whole, long-ass thing and held everyone’s attention to the very end. He got a laugh, too. Not an easy feat with a crowd full of high schoolers.
These long stories would’ve been completely obnoxious except for that infectious laugh that got even a room full of teenagers on his side. Side note: I don’t know how teachers do it. Kids and teenagers are scary to me. But Coach Copeland came in with cool confidence. A man like that, with his polo shirt and a face open and kind but weathered, you just knew. He had seen some shit. He wasn’t afraid of our dumbasses. He commanded respect, and he commanded the room. He also seemed to get a real kick out of us, too.
Aside from those two quotes and a few of the pun stories, I don’t remember a single thing I learned in that class, not from the books anyway. Everything Coach Copeland taught us was by virtue of his presence. I learned to be a great speaker because I got to hear him speak. His comedic timing, delivery, and unshakable commitment to the bit all stuck with me.
I’m sure we also had to do speeches in there. That was the name of the class after all. I just can’t remember any of them. What we learned the most was from just listening, which is a lesson in itself.
Miss you, Coach.
QUESTION FROM ME! – Online Vigilantes
This week’s question comes from me scrolling through TikTok. I got to wondering:
“A woman on TikTok tracks down people who she thinks are trying to illegally obtain COVID vaccine cards or others who threaten violence against women. She then contacts their employers, licensing authorities, and family members using publicly available data. Is this legal?”
Excellent question, me! I love answering questions from you, but just like you, I also have a curious mind and couldn’t stop thinking about this situation.
I was inspired by a new TikToker I found named Savannah. She’s a pharmacist, lactation consultant, and web sleuth who was tracking down wrongdoers and reporting them to their employers, their family members, or the authorities. She worked with other TikTok detectives who used open source investigation to find people possibly violating the law or just generally acting like gross assholes.
** EDIT - She has since deleted the videos at issue and posted an update video. In the update, she states, “I am not sorry for the videos that I made. I am not sorry for the people being held accountable, and I will continue to hold people accountable as it pertains to public health and patient safety.” She cites the credible threats made against her and her family’s safety as her reason for removing the videos. **
KIDNAPPING JOKE
One male TikTok user (TikToker? TikTaker??) “dueted” one of Savannah’s videos. If you’re not familiar with TikTok, when one user makes a video, another can choose to “duet” the original video. The second creator will react to the original video side-by-side. Savannah’s video showed all the ways she and other female runners must prepare themselves to go on a run safely – for example, by taking ID, carrying pepper spray, and only wearing one AirPod.
The male user who dueted her video included captions indicating the ways he would “disarm” her tactics, with the underlying “joke” being that he was learning how to effectively abduct a woman, I think?? I’m not a professional comedian or anything… oh wait, yes, I am. That’s a bad joke, if it can be considered a joke at all.
Savannah found this user’s Facebook, and from there tracked down family members. She messaged them privately and let them know their family member made these unsettling remarks in his publicly available TikTok video. One sibling responded saying she would take care of it and asked that Savannah not reach out to other family members. Savannah obliged. Not sure what “take care of it” entailed, as another sister and a cousin later reached out to Savannah, threatening legal action. Unedited excerpts from their messages appear below:
“Defamation is real and court is too!”
“Not only did you harass my ENTIRE family you defamed his name. We would like the video to be taking down ASAP or we will have no other choice but to bring this to court.”
Savannah did not take the video down.
FAKING VACCINE CARDS
In another set of videos, a user found a comment on a COVID vaccine post that read, “I work at a pharmacy and grabbed blank [COVID vaccine cards] for me and my hubby 😜 😜.” Beneath that comment, another user asked, “Can I pay you to ship a couple to me 🤣”
Based on what seemed to be a fairly cursory internet search, Savannah was able to locate the initial poster and identify her as a pharmacy technician in Illinois. This pharmacy tech had actually posted her entire pharmacy license renewal form on TikTok. Yikes.
The second commenter asking to pay for the cards was a nurse. Again, a pretty easy search (beginning with the Instagram profile linked in her TikTok profile) turned up the where the nurse worked and that she was indeed licensed in Texas. Savannah then made a report to the Texas Nursing Board of the incident.
A several other videos on TikTok shared by Savannah involved people – some of whom are licensed medical professionals – asking for blank or fake vaccine cards.
One now-deleted video by Savannah viewed over 9 million times showed the Instagram, Facebook, and place of employment for a woman I’ll call Kari. A self-described “pediatric trauma RN,” Kari initially posted a TikTok video of herself selfie-style lip-synching to the song “Big Gangsta” by Kevin Gates. Cringey though that may be in and of itself, the worst part is the caption that reads, “Screw a fake ID. I need a fake vaccination card now.”
After Savannah’s post, concerned TikTok users contacted the hospital listed as Kari’s employer in her Facebook profile. Faced with comments and phone calls, the hospital released a statement that they were aware of the video, but that the nurse in question, Kari, had not worked for the hospital since August 2020.
Savannah left up the video naming the hospital as the woman’s employer, drawing ire from other users. She later posted a follow up video with the correction, but still kept the original video with the incorrect information up. She finally deleted it after being threatened by what she called “far right TikTok.”
There’s a lot swirling in my mind here. Let’s take the issues one by one. First, we’ll talk about the people on the receiving end of Savannah’s videos then move on to what Savannah is doing in response.
CAN YOU JOKE ABOUT FAKING COVID VACCINE CARDS?
Generally, yeah, jokes are protected speech. The government can’t lock you up for joking about something. But free speech is only between you and the government. Your employer can make whatever choices they want about how to respond to your joke.
Fake vaccination cards are a real thing. According to Fortune, advertisements for fake vaccination documentation are up 300% since January on the dark web, a hidden part of the internet that isn't visible to Google. I suppose not having access to the dark web, these folks had to post their requests for obtaining vaccine cards openly on TikTok.
But aren’t the comments just a joke? The addition of a 🤣 or a 😜 may mean the comments were insincere. Or was the wink indicating that the pharmacy tech did something illegal already? Or was it just a joke all along?
Emojis are being used by courts to interpret people’s intent in both civil and criminal cases. For instance, does a kissy-face emoji in response to a sexual advance indicate that you welcome the advance? Does adding an “LOL” emoji after asking someone to do crime with you make it a joke?
In a sentence that sounds very 2020, the intrinsic meaning of an emoji and its intent in relation to a sentence would be up to the interpretation of a judge or a jury. Generally they’ll look at things like the accepted use of the emoji (e.g., 🍆) and the context of the words around it.
For instance, these two emoji uses have very different interpretations:
Let’s cook dinner at home tonight. Trying to be healthy 🍆
versus
i’ve got something for you to eat 🍆
LET’S JUST SAY IT WASN’T A JOKE. IS IT UNETHICAL TO FAKE VACCINE CARDS?
For sure.
The pharmacist tech who said she stole COVID vaccine cards from her employer is possibly in violation of the pharmacist rules of her home state of Illinois. One of the requirements for a pharmacy tech is that they must be “of good moral character.”
Savannah mentioned that as a pharmacist, she had an obligation to report the actions. This same rule applies to lawyers. We have an ethical duty to report conduct that violates our rules. Yeah, we’re mandated snitches. It’s part of the deal when you sign up to be a professional.
The Texas nurse who asked to buy the blank cards is regulated by the Texas Board of Nursing. Is asking to buy a stolen, blank vaccine card a violation of the Board of Nursing rules? Looks like the nurse would have to actually be arrested for a “crime involving moral turpitude” for it to be actionable. I’m not sure simply asking for the fake document, when accompanied by a “laugh till you cry” emoji would qualify.
Then again, this is an evolving situation impacting public health, and lying about one’s vaccinated status may put patients in jeopardy. In that case, it could be a violation. Even so, it would likely require more action that a comment on TikTok.
IS IT ILLEGAL TO FAKE VACCINE CARDS?
Yeahhhh, most likely. There’s a pretty broad federal law at 18 U.S.C. § 1001 that makes it a federal felony to:
falsify, conceal, or cover up by any trick, scheme, or device a material fact;
make any materially false, fictitious, or fraudulent statement or representation; or
make or use any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry
to the government.
In short, this law makes it a crime to lie to the federal government. If you steal the blank cards and write fake information on them, that seems to be a pretty clear case of using a false document knowing that it contains a fraudulent entry.
Since the COVID vaccine is so new, there aren’t yet laws that address the vaccine cards specifically. A state legislator in New York has proposed a bill that would prohibit the falsification of COVID-19 vaccination records. If the bill passes, a non-medical professional who falsified COVID vaccine records could be charged with a Class A misdemeanor punishable by up to 364 days in jail and/or a $1,000 fine. For medical providers, it would be a Class E felony punishable by up to four years in jail.
But even without these specific laws, there is possibly a law on the books in these folks’ jurisdictions that make falsifying the records a crime. I’m more familiar with Texas law and § 37.10 of the Penal Code, which makes it a crime to falsify, sell, or alter a “government record.” Given that the vaccine card is issued by the CDC, a government entity, sounds like a “government record” to me.
This law could easily apply to stealing, selling, or using blank vaccine cards. The law includes a whole list of prohibited actions including: altering a government record, presenting/using a false record with the intent that it be taken as genuine, or possessing, selling or offering to sell a blank document with the intent that it be used unlawfully.
Pretty much covers the stealing-blank-cards scam and would cover selling them, too. If you mailed them across state lines or used the internet to sell them, you would be eligible for a federal charges as well (it’s all about that interstate commerce!)
Now that we’ve established that what these folks have done is at best icky and unethical, and at worst, illegal, what about the actions Savannah has been taking? Is it doxxing? Defamation? Illegal? Let’s walk through it.
FIRST: WHAT IS DOXXING?
A shortened version of “dropping docs” or personal documents, the dictionary definition of dox is “to publicly identify or publish private information about (someone) especially as a form of punishment or revenge.” Examples of “private information” that can be used to dox someone include “addresses, phone numbers, and even Social Security numbers.”
Doxxing is the act of revealing private information about someone in a public way. This happened when Lou Dobbs, the now-cancelled Fox News host, shared the home address and phone number of a woman who accused former president Donald Trump of sexual assault. Her phone number and address were not publicly available, but he shared them from a random Twitter account.
Doxxing is different from open source investigations, which is where a web sleuth uses public data available on the internet to help identify perpetrators of crime. A recent example of a successful open source investigation is the capitol insurrection that happened in January 2021 (why did I feel the need to give you the date? How many capitol insurrections have we lived through? One too many, that’s how many.)
John Scott-Railton, senior researcher at the University of Toronto’s Citizen Lab, took to Twitter after seeing the photo of an insurrectionist toting a shit load of zip ties in the Senate chamber. People on Twitter began referring to the man as Zip Tie Guy because human beings love a good nickname.
Fearing a public safety concern, Scott-Railton and other Twitter users attempted to identify Zip Tie Guy. In an interview with GQ, Scott-Railton described the process wherein he and other Twitter users “surface[d] details and use[d] them to identify a person.”
Using patches on Zip Tie Guy’s gear, the gear itself, and other photos and videos published publicly on social media, the online detectives managed identify the Zip Tie Guy. Another insurrectionist was also identified by the military insignia he wore on his helmet which linked him to a specific service unit in Texas. Once he was sure they got the right people, Scott-Railton took his identifications to the FBI.
He also warned his followers not to announce perpetrators publicly until the authorities had confirmed their identities. In his interview with GQ, Scott-Railton said, “It was not far from my mind that there have been efforts like these that have gotten wrong, and that can have lasting consequences.”
He may have been referring to the Reddit vigilantes who, in the wake of the Boston Marathon bombing, mistakenly named an unrelated missing student as the bomber. The student was totally uninvolved. The general manager of Reddit later apologized for the “online witch hunts and dangerous speculation” that happened in the case.
Remember, doxxing is the public sharing of private information. Open source investigations use publicly available information to identify someone and then report it privately to authorities.
Publishing it publicly? That’s a dangerous line to toe, and can lead to situations like the hospital in this case being bombarded with calls about a nurse that no longer works there.
IS DOXXING A CRIME?
Federal Law
There are a few laws that relate to doxxing. The first and most relevant may be the federal law that makes it a crime to reveal the personal information of a small group of “covered persons” under 18 U.S.C. § 119. It only applies to a really narrow group of people including:
government employees/officers, including military personnel;
any juror, witness, or other officer of any court of the United States;
an informant or witness in a Federal criminal investigation or prosecution; or
a State or local officer or employee whose restricted personal information is made publicly available because of the participation in, or assistance provided to, a Federal criminal investigation by that officer or employee.
If the victim of doxxing is not one of those narrow categories listed above, then there isn’t exactly a law against doxxing. However, federal or local stalking laws may apply depending on the doxxer’s behavior.
A doxxer could face charges under federal law at 18 U.S.C. § 2261A, which makes it a crime to stalk. Proving that someone is stalking you under this law requires proving the “elements” listed below.
Intent – the stalker must have the “intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person.”
Use the Mail or Internet – For the federal government to regulate criminal conduct, the criminal conduct must be connected to “interstate commerce.” Otherwise, the states are tasked with regulating criminal conduct.
Engage in a course of conduct that — (1) Places the victim in reasonable fear of the death of or serious bodily injury; or (2) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person.
This law covers a victim, their immediate family members, their spouse or intimate partner, or their pet, service animal, emotional support animal, or horse. Yes, you can sleep easy. Your horse is safe from stalking.
A key element here is “intent” – would you be able to prove that an open source investigation that involves reporting someone to the authorities and posting publicly is done with the intent to “kill, injure, harass, or intimidate” someone? It may be intended to harass or intimidate. Would publicly posting reporting someone’s bad behavior “cause substantial emotional distress” to a person? What if they person had already publicly posted it themselves?
I’m not a federal judge (YET!) or a member of a jury (YET!) so I can’t say for sure. It would depend on the facts of each case. I know – “it depends” is such an annoying lawyery answer.
State Law
There are also state laws against cyberbullying and stalking. Since Savannah is in Mississippi (by her own public admission – not trying to dox anyone here!), we’ll look at Mississippi law.
The Mississippi law on cyberbullying only covers actions by kids at school, so it’s not relevant to this situation
The most relevant statute is probably Mississippi’s law against cyberstalking. The law makes it a crime to “use in electronic mail or electronic communication any words or language threatening to inflict bodily harm to any person or to that person's child, sibling, spouse or dependent, or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person.”
Of the now-deleted videos I watched, at no point did Savannah threaten bodily injury to anyone, threaten their property, or attempt to extort them. Indeed, quite the opposite. She has apparently received multiple threats of physical violence not only against herself but also very graphic threats of violence against her young daughter which caused her to delete the original posts.
Mississippi also has a law against stalking. Under that law, stalking is defined as purposefully “engaging in a course of conduct directed at a specific person” or “making a credible threat” by a person “who knows or should know that the conduct would cause a reasonable person to fear for his or her own safety, to fear for the safety of another person, or to fear damage or destruction of his or her property.” Course of conduct is defined as two or more acts.
When Savannah reposted publicly available information – such as someone’s name, employer, or general city location – would that have been sufficient to cause a “reasonable person” to fear for their safety?
Again, I’m not a Mississippi judge (PROBABLY WON’T EVER BE!) or a person on a Mississippi jury (WHO KNOWS? MAYBE SOME DAY!) so I couldn’t tell you. I will say if I were on a jury, I would like to see a little more action than simply sharing open source information, like possibly sharing the exact military base where someone lives and the person’s phone number …
I say that last part because users who seem to take umbrage at what Savannah was doing have shared the base on which Savannah lives, her exact address, and her phone number. Couple that with the direct threats of physical violence she has also received, and it’s shaping up to be possible violations of these Mississippi criminal statutes.
It may also run afoul of the federal law at 18 U.S.C. § 119 if Savannah’s husband, who is apparently in the military, is also the subject of doxxing.
WHAT ABOUT DEFAMATION?
If what Savannah is doing is not a crime, could it be actionable in a civil court? By that I mean, could someone sue her for what she’s doing?
What do we say, y’all? You can sue anybody for any reason, it’s just whether or not you’ll win. Here, they probably wouldn’t.
To win a case of defamation generally, a person would have to prove:
The defendant (person being sued) published the statement – this includes publishing something online. Check.
The statement is about the plaintiff (the person suing/the target) – this element can be met even without directly naming the plaintiff. If you publish something with sufficient information to identify the plaintiff, this element can be satisfied. Check.
The statement harmed the reputation of the plaintiff – the plaintiff would have to prove that the statement is more than just offensive. It would have to “expose a person to hatred, ridicule or contempt, lower him in the esteem of his peers, cause him to be shunned, or injure him in his business or trade.” This “harm” could include a target being fired from their job. Maybe check.
The statement was published with some level of fault – the level of fault depends on whether someone is a public figure/government official or a private citizen. It’s enough to be negligent if the target is a private citizen. For public officials, the standard is much higher. It is possibly negligent not to confirm where someone worked currently. Or is it reasonable to rely on someone’s social media? Another maybe.
The statement was false – this is a big one. Truth is a defense to defamation. The famous case of New York Times v. Sullivan is the classic case taught in law schools with this lesson: a plaintiff has to prove that a defamatory statement is false in order to prove defamation. Definitely NOT check.
Savannah herself said, “I’m not even good at research. I’m good at clicking links on people’s profiles. It’s more difficult to put in a DoorDash order.” She showed exactly how she finds information, usually with screen recordings and narrations. As far as I have seen, she was not publishing anything that was non-public, and she was not publishing anything false.
Re-posting a TikTok video that someone posted publicly and made available for duet, as she did with the man who made plans how to disarm her in order to kidnap her, would not be a false statement. He is the one who made the video. Not sure what his family was planning on suing her for. Maybe they thought she created a deep fake video showing their brother/cousin as the word “DISARM” appeared on screen beside a video about women’s safety? Somehow I doubt it.
The same goes for the nurses and pharmacists and other folks asking for government documents to falsify. They were the ones lip-syncing that they’re gangsters and putting a call to action in the caption on the video indicating their desire for fake vaccine cards.
Again, Savannah didn’t make the initial videos for them. They made them on their own. Neither did she publish any false statements – she simply shared screenshots of publicly available information.
The one issue she may face, aside from their indignance at being called out, is for using their photos/videos – technically, their intellectual property – on her page. But this thing is already a million words long, so I’m not even going to go there. It’s also an especially weak argument if the videos were duet-able. That is an implicit invitation for people to repost and interact with your content. Plus she’s already deleted the offending content.
Based on the information available, it looks like it is not doxxing, and it is not defamation either.
You can dislike that Savannah or these other online vigilantes were naming folks in public, but the answer definitely is not to publish their address/phone number or physically threaten them or their families in return. See above re: crimes.
For a comprehensive guide on how to use your web sleuthing skills to help law enforcement solve crimes, check out Billy Jensen’s Chase Darkness With Me. An important note, his first rule of crime solving is “Never Name Names in Public” sooo yeah. I’d second that. That’s partially because agree with Billy Jensen on just about everything. It’s also just damn good advice.
I am also going to issue a general warning against faking or stealing COVID vaccine cards or any other government documents or doing other crime. Wow, who ever thought I’d need to say that sentence?
I hope that was interesting for all you to learn as it was for me! Thanks for reading.
Got a question? Submit it here. They can be legal what-if questions, questions on current events, or questions about the legality of actions in TV shows or movies you’ve seen. I never ever want to answer your personal legal questions, so don't send those. Love you, but I don’t do that.
Until next week, that’s the tea, have some wine, don’t post about your crimes online.
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