Fullerton: Double-Clicking is a Federal Crime!


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On a personal note, I’ve been trying to stay out of the business of political commentary.  It’s exhausting.  One need not go beyond Anaheim to see just how difficult it is to get and keep good folks in office.  The ability of unprincipled people to profit by injecting their business interests into the guaranteed revenue stream of taxation is just too overwhelming.  One of us “ankle-biters” dedicating two or three hours a week will never overcome a political hack who makes $50/hr to make Harry Sidhu look like not an assclown a natural leader, fit for unchallenged autocracy over OC’s biggest city!  

In today’s era of two second impressions driving public opinion, investing my spare time returns only frustration.  The needle will not move.  There are just too many people with real money to lose.  If Sidhu can put on an olive drab jumpsuit and ride in the back of a Humvee during a veteran’s parade after telling the Board of Supervisors he wants to put county clerk offices in near-earth orbit (both true) and still get elected, this is all a waste of time.

Moreover, it now seems pretty darn clear that blogging will inevitably get me sued.  I have no desire to put my family at risk because I used a document to support an argument.

Yet, try as I might, my conscience keeps pulling me back in.  Some sins are just too big to be swept under the rug of apathy and resentment.  I started writing seven years ago because the beating of an unarmed-mentally-disabled-man to death was one of those sins.  The road to that moment was paved by so many, including myself, who let little liberties die without making a sound.  A little homeless roust here, a little abuse of authority to search there, that’s how Joseph Wolfe and Manny Ramos got started.  The idea that Kelly Thomas’s death appeared out of the blue and that there weren’t warning signs isn’t just naive, it’s willful ignorance of the crystal clear truth: Bad apples rot from disease over time, not overnight.

Maybe this is all just wasted time, but at least it’s cheaper than golf.  So, once more into the breech good friends.  It’s our time to waste, but hopefully this is my last one.  Risks are just too high and the willingness to retaliate against journalists and opinion makers seems quite real.

I served as a Commissioner in the City of Fullerton for over six years.  In that time, I witnessed officers from the City Attorney do some really stupid things.  Of course, I’ve also seen competent and courteous work from the same office, but in the case of legal affairs, “good” some of the time doesn’t excuse piss poor or just plain EVIL work at others.  Got an attorney doing evil things?  Ain’t nobody got time for that.

Evil?  Strong word, right?  I shouldn’t be casually tossing that around.  Evil.  That really means something.

[To the attorneys I’ve worked with at Jones and Mayer that have done competent and courteous work, and you should know who you are, I’m sorry for what’s below.  Two members of your staff and your boss negatively impact your reputation, which you don’t deserve, but you need to find an alternative legal house in which to reside.]

“Having a harmful effect on people.  Morally bad.” — Oxford

Not much there to chew on.  Man shoots puppy for sport.  OK, evil.  That hardly feels like critical thought.

“There is no possible source of evil except good.” — St. Augustine

Oh, that’s better.  Much better.  That’s “The road to hell is paved with good intentions” kinda stuff.  Let’s take that one out for a spin:

Good: Acting to protect the privacy of your past and current employees.

Evil: Labeling two citizens in your town as “criminals” because they aired your dirty laundry that you created and put out for the whole world to see.

Good: Following the direction of your City Council.

Evil: Breaking the law to follow the direction of your City Council.

Good: Communicating to the public who you’re suing and why.

Evil: Purposely suing people to get another party fired.

See what I mean about Augustine?  Evil isn’t always as simple as running around with a hatchet trying to chop people’s arms off.  Evil is vaulting ambition, Lady MacBeth kind of stuff.  Evil is win-at-all-costs.  Evil is trying to fix a mistake by leveraging pride against ignorance.  Evil is justifying wrecking lives because you’ve convinced yourself of your own righteousness. Evil is compounding one bad decision with another because it’s easier to pass blame than it is to ask for forgiveness.  Ladies and gents, that’s evil!

I don’t want to run around the internet calling people evil.  It doesn’t exactly feel comfortable.  Fortunately, I’m not in the business of wrecking lives.  Those with the power to do exactly that ought to have the constitution to tolerate that label, especially when it’s true.  Don’t want to be considered evil?  Think that’s unfair?  Great.  Then don’t do evil things.

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This past Tuesday, the City of Fullerton laid out an explanation for its lawsuit against David Curlee, Joshua Ferguson, and the Friends for Fullerton’s Future blog.  Kim Barlow, deputy City Attorney, gave an update on the case, which you can view below.  After listening to this trainwreck, I can’t avoid the crystal clear truth that Fullerton needs a new City Attorney.  The Council should request bids immediately and also fire Jones and Mayer by the end of the year.  Fullerton can’t fix potholes when it’s paying its attorney $350/hr to spout evil garbage.

Let’s break it down.  Ms. Barlow?

Okay, now let’s lay this out:

Good: Acting to protect the privacy of your past and current employees.

Evil: Labeling two citizens in your town as “criminals” because they aired your dirty laundry that YOU created and put out for the whole world to see.

The argument laid out by Ms. Barlow stems from a famous case in the 1970’s known as The Pentagon Papers.  The famous case makes it clear the media can publish whatever government files it receives, so long as it did not use criminal means to obtain the material.  Ms. Barlow accuses Curlee and Ferguson of a federal crime for unauthorized access within Fullerton’s Dropbox Account.

What’s “unauthorized access to a Dropbox Account,” according to Ms. Barlow?  Well, it’s actually pretty simple.  Dropbox functions a lot like your PC.  It uses an internet browser to display folders, which contain other folders or files.

Now the City’s theory is so ridiculously stupid, I have to put this into pictures.

The City provided a link to its dropbox account to Curlee, Ferguson, and others.  Anyone accessing the link provided by the City would see something like this:

The City’s claim states it gave permission to someone (Curlee, Ferguson, whoever– me in this example) to open File No2 and download the contents within it.  They also claim that double clicking on ANY OTHER FILE, despite the city doing absolutely nothing to impair your ability to double-click on any other file, even the one with my name on it, is a federal cyber-crime.

I’m not kidding.  The City believes it’s a federal crime to double-click on a file folder that they sent you a link to view.  The implied legal theory here, as I understand it, is that every single file posted to the internet requires express permission from its owner to access, and failing to secure permission before double clicking on the publically available internet is a federal crime.  In this case, File No1, File No2, File No3, File No4, and File RCantorPR have the exact same security profiles and are accessible by every computer connected to the internet on the entire planet.  You click, you lose, go directly to jail, do not pass GO, do not collect $200.

** NB: After drafting this Wednesday night, Joshua Ferguson posted a copy of the Reporter’s Committee On Press Freedom’s Amicus Brief, which I encourage you to read.  It echos a lot of what I wrote here, but you know– it’s from an actual competent authority, which probably means something to some of you. **

Not only is this a dramatic expansion of federal cyber-crime laws, as far as I can tell it’s never been upheld by any appeals court anywhere  in the world ever.  (China, maybe.)

Don’t have any precedent to support your insane legal theory?  Nevermind!  Run around screaming CRIMINAL CRIMINAL CRIMINAL to the press and every judge you see.  Say it enough, someone will believe it.

I know what you’re thinking.  Nobody is seriously stupid enough to claim that browsing the internet and downloading files is a crime, particularly since that’s literally the purpose of the internet.  What aren’t you telling me, Ryan?  You have to have gotten something wrong.

Maybe I did get something wrong, but to me it sure looks like what the city wants you and the court to believe is that because the alleged criminals used a virtual private network to obscure their IP address, that somehow this manufactured malicious intent magically makes double clicking file available to download from anywhere in the world a crime.  News flash: Virtual Private Networks (VPN) and other tools of anonymous browsing are not illegal to use.  In fact, they’re recommended as basic privacy tools by PC Mag and even sold as a consumer product by Internet Security giants Norton and McAfee.  Classic red herring argument.

The fact remains that browsing the public internet, even anonymously, and downloading files is legal. That’s what the internet is for. This looks and smells like garbage made up to pawn off to the public as actual real documented truth of law.  It’s not, and four members of Fullerton’s City Council actually buy this theory (Gawd, I hope it’s because their attorney said they had no choice, cause this looks really poorly conceived) and are spending your tax dollars to promote it.  You’re paying for this.

** From RCOPF’s Amicus: “When an entity chooses to make information available to the public on the internet, without a technical access restriction like a password, that information can legally be accessed by anyone.  Were that not the case, websites could trigger criminal or civil liability by fiat, through changes in the terms of use of the website, which is exactly what the City is attempting to do here.” **

In other words, RCOPF agrees with my assertion that the Fullerton City Attorney attempts to “break the internet” by making it a real world version of Red-Light-Green-Light, except no one tells you there’s a red light and you go to federal prison if you don’t stop browsing after receiving supernatural instructions not to double-click.  It’s absurd.  Double-clicking is not a crime and Fullerton shouldn’t break the entire freaking internet because its City Attorney screwed up confidential files that the Council finds embarrassing.

Why are you paying for this?  I understand the City wants to protect its former and current employees, that’s good, but what the City needs to do is to protect the public and employees from itself.  The City Attorney clearly prefers blaming, pointing, screaming criminal, and never admitting anything to anyone.

And that my friends, is evil.  That’s not even getting into the content of what’s actually been published, which is pretty horrific itself.  The City Attorney signed off on all of that, too.  Why isn’t Jones and Mayer’s head on the chopping block to pay for a problem they created and then made worse?  Why are Fullerton taxpayers continuing to pay billable hours to this firm?

Good: Following the direction of your City Council.

Evil: BREAKING THE LAW to follow the direction of your City Council.

Ugh.  Personally, I find this one even worse than Jones and Mayer’s attempt to make the intended use of the internet a federal crime.  Federal Cyber Crime laws aren’t their core competency.  Keeping the City compliant with state law is supposed to be.

The last time I wrote a blog post was shortly after busting Fullerton for illegally removing Bruce Whitaker and illegally appointing Ahmad Zahra to the Orange County Water District.  The City violated the Brown act, blatantly, while the City Attorney sat there on the dais and did nothing.  You’ll note that particular blog post is loaded with negativity, just like this one– which is why I don’t want to do this anymore.  This evil garbage never stops.

This past Tuesday the City Attorney finally admitted the Council gave unanimous (really Bruce Whitaker?) direction to sue some people and a blog on September 17, 2019 in closed session.  Here’s the supposed item from the agenda from that meeting.

Government Code Section 54956.9(d)(2).  Super.  What’s that?  Well, let’s look at CA GC SS 54956.9.

“A point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency.”

Hm.  That’s interesting.  Significant exposure to litigation against the local agency.  The Brown Act allows the Council to meet in closed session to discuss a narrow range of topics, and by this citation, the Council is only allowed to discuss anticipated litigation against Fullerton.  How is initiating a lawsuit against a few people and a blog exposure to litigation against Fullerton?

Oh wait, it isn’t.  It’s just that the City Attorney sucks.

The applicable GC section is actually 54956.9(d)(4).

“Based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation.”

Why is that important? Because GC section 54957.1 requires the City Attorney to “publicly report any action taken in closed session and the vote or abstention on that action of every member present when . . . (wait for it, my emphasis)

Approval given to its legal counsel to defend, or seek or refrain from seeking appellate review or relief, or to enter as an amicus curiae in any form of litigation as the result of a consultation under Section 54956.9 shall be reported in open session at the public meeting during which the closed session is held. The report shall identify, if known, the adverse party or parties and the substance of the litigation. In the case of approval given to initiate or intervene in an action, the announcement need not identify the action, the defendants, or other particulars, but shall specify that the direction to initiate or intervene in an action has been given and that the action, the defendants, and the other particulars shall, once formally commenced, be disclosed to any person upon inquiry, unless to do so would jeopardize the agency’s ability to effectuate service of process on one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage.

Why?  Because you have the right to know when your City Council votes to sue someone with your tax dollars, why they’re suing, and who voted for it.  Let’s take a look at the minutes for September 17, 2019.

Anyone see the required disclosure concerning initiating a lawsuit, including the vote of each Councilmember authorizing the lawsuit?  Anyone?  Anyone at all?

No?

No one?  No one sees where the City Attorney lawfully complied with its requirements under CA Government Code Section 54957.1(a)(2)?  I don’t see it either.  Maybe I need my eyes checked. Maybe we all do.

Again, I know what you’re thinking.  “Ryan, did the Fullerton City Attorney seriously break an actual law to initiate a lawsuit that falsely accuses other people of breaking the law?  Did you just bust them for the second time this year when you’re really not even paying that much attention?”

Well, sure looks like yes and yes.  In that case, Fullerton commited a crime by failing to comply with CA GC Section 54957.1(a)(2).  Is there a consequence for this?  Yes.  Yes there is.

Assuming that’s right, the City gets no safe harbor provision under CA GC Section 54954.5 because they did not include the required information related to “Initiation of litigation pursuant to paragraph (4) of subdivision (d) of Section 54956.9.

“Blah blah blah, Ryan.  Means nothing.  What are those consequences?  In plain language, please.”

Well, for starters, particularly since this looks like the second violation that I’ve actually caught, meaning there might be a whole lot more, the District Attorney could order all closed sessions in Fullerton to be recorded and preserved.  That should happen immediately.  Clearly the Fullerton City Attorney needs a freaking chaperone and it ain’t gonna be me.

Second, technically, someone could void Fullerton’s illegal action to sue someone according to 54960.1.

“The district attorney or any interested person may commence an action by mandamus or injunction for the purpose of obtaining a judicial determination that an action taken by a legislative body of a local agency in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956, or 54956.5 is null and void under this section. Nothing in this chapter shall be construed to prevent a legislative body from curing or correcting an action challenged pursuant to this section.”

Am I going to do that?  No.  I’m too scared Kim Barlow is going to turn my life inside-out by claiming I illegally used the internet to download code citations without the expressed written permission of the State of California and therefore I’m a criminal.  What I did do is contact the City Manager, express my obvious displeasure with the City Attorney and Fullerton violating the Brown Act again, which is why the public received the information it did this past Tuesday.  That was Fullerton’s attempt to cure their illegal action based on my complaint, while not admitting anything.

Was it good enough?  I have no idea.  Honestly, I don’t really care.  What I do care about is why the City Attorney is continuing to get paid by Fullertonians.  Some jackass like myself shouldn’t be schoolin’ them multiple times a year, not on case law, but on literal recitation of the code they’re required to follow.  This is ridiculous.  I’d imagine Todd Spitzer has plenty to do down at his new office, but if you want to give him a call and let him know what’s going on with Fullerton’s closed sessions, be my guest.

The problem here is we have absolutely no idea what was said in closed session and by whom.  That’s obviously the point of closed session, but for that to work we have to have trust.  The real problem is we’re left to assume the Fullerton City Council unanimously voted to sue people (again, really Bruce Whitaker?) after consideration of several options presented by their attorney.  Did that occur or did the City Attorney purposely paint the Council into a box because this lawsuit attempts to shift blame from the City Attorney’s office (where it belongs) to members of the public?  I dunno.  Neither do you, but it sure feels like a conflict of interest to me.

In any case, let’s assume the Council ordered the City Attorney to launch a secret lawsuit to get the big bad bloggers.  The City Attorney following orders is okay.  The City Attorney breaking the law  (sure looks like they did to me, but that’s up to Todd Spitzer) to file said secret lawsuit is evil.  Again, why Fullerton taxpayers continue to tolerate billable hours from Jones and Mayer is absolutely beyond my limited comprehension.

Good: Communicating to the public who you’re suing and why

Evil: Purposely suing people to get another party fired

Alright, so, we’ve got falsely labeling people criminals to cover your own ass, and breaking the law to falsely accuse others of breaking the law, why am I adding this gem to the pile of evil garbage spewed out by Jones and Mayer?

Getting people fired because of their politics, or in this case because they made you look bad, is shooting puppies for fun kind of evil.  Children deserve a home, they deserve a meal, they deserve a happy birthday.  Going out into the world and purposely depriving the dependents of political opponents of sustenance is flat out always wrong.  I’ve had it done to me, it sucks, and I hope there’s a special circle of hell for people who do this sort of thing.

I’ve witnessed members and close confidants of Fullerton’s City Council malign both David Curlee and Joshua Ferguson as malcontents.  Maybe they are malcontents, I dunno, but it’s not a nice thing to say about someone and demonstrates appreciable bias from decision makers initiating this lawsuit.  David is a pretty quiet and level-headed guy in my experience, certainly more respected in Fullerton than I am; on the other hand I’ve openly disagreed with Joshua publically, repeatedly, and sometimes with vulgarity.  My experience with either of them doesn’t determine if they’ve done anything illegal or evil.

Let’s take a look at Fullerton’s original (again, filed in violation of the Brown Act) lawsuit:

I’m sorry, but who the hell is that guy in highlight?  Every single time someone does an internet search on this guy, this lawsuit is going to show up, so I’m not going to add to that pile of evil garbage by typing his name into this blog post.  Council did the right thing on Tuesday and removed this party from the suit on a 5-0 vote, a month after it was filed.

Are you freaking kidding me?  You couldn’t call this guy before filing the suit to see what he knew and when?  You had to go and make this a permanent part of his life in a lawsuit accusing people of cyber-crimes?  That, that right there, that is straight up evil.  It just is.  That’s reckless disregard for ruining lives and a wild abuse of government authority.

This certainly begs the question of why this is here in the first place.  Since the Council and their City Attorney failed to disclose their lawsuit when they voted to proceed as required by law, I have to rely on the City Attorney’s press release discussing the topic.

The City accused this dude of committing cyber-crime, then turned around a month and a half later, saying sorriez, we didn’t mean it?  WOW.  Ready, fire, aim much?

Turns out this individual was a (former) co-worker of Mr. Ferguson.  Mr. Ferguson now no longer has a job.  Given the City Council’s nearly immediate removal of this individual from the lawsuit after Mr. Ferguson had already lost his job, the City Attorney’s intent seems is highly questionable.  They’d really love nothing more than to play The Grinch this holiday season?  Of course, if you’re a Fullerton taxpayer, you’re bankrolling said Grinch who wants to steal Christmas from kids connected to “malcontents”.  Voting to sue some guy one month and removing him the next after he signs a document supporting your case and after one of the guys you’re suing loses his job is not a good way to let the public know your intentions are true and honorable.

Why are you bankrolling these people?  I honestly have no idea.  I don’t think Fullerton should employ people who do things like this.  This was fix-with-a-phone-call easy.

WHERE DO WE GO FROM HERE?

This is ridiculous and I don’t want to do this anymore.  Running around the county screaming people you’ve labeled as “malcontents” are really criminals after violating state law and purposely trying to get people fired?  Nope.  None of it.  I want nothing to do with any of this.  It’s wrong, no one on the Council or any other body with actual authority is going to do anything about it, and it’s sickening.  I don’t want to be the guy who lets little liberties die, but that task falls to Jesus Silva, Jennifer Fitzgerald, Ahmad Zahra, Bruce Whitaker, and Jan Flory.  A 3800-word blog post won’t do much, and apparently I can get sued if three people get pissy.  Just not worth it.

Fullerton has many, many, many problems.   Nothing is ever going to get better if the City Council isn’t willing to make hard choices.  Right now, what’s readily in front of them, is a giant obvious problem at the City Attorney’s Office.  They need a new attorney and that firm should be in place by January 1, 2020.  This kind of crap has to stop.  It won’t until Fullerton gets a new attorney.  In the meantime, people who are willing to openly criticize their government will become fewer and quieter.  Count me as a minus one.


About Ryan Cantor

Our conservative columnist, based in Fullerton, works as a Project Development Analyst and Strategic Planner.