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| Does the "press" have the right to possess personal identification information, in contravention to state statutes, when such information neither serves the public interest nor is a public record? |
Escambia County's case against Gannett, Jonathan Owens, and Alex Arduini moved forward yesterday with a show cause hearing on Zoom that lasted about two hours.
The county presented its case and called a number of witnesses. I was first, and I testified truthfully. Jonathan Owens was called to testify and through his lawyer, he took the 5th amendment and did not testify. Alex Arduini, initially advised by his own lawyer to also take the 5th amendment actually did answer questions and testified that he has never seen the text file nor has he ever possessed it. That was his testimony under oath. Not one (1) person from the PNJ bothered to show up to testify. Their lawyer informed the court they would not testify and that they would be shielded from testifying about the identity of their anonymous source that gave them their files via a Florida law that protects the media.
The judge was very methodical and allowed all attorneys present to speak and present their cases.
I was allowed to testify to the fact that several of my family members have endured fraud on their accounts in the last 8 months, and I was given space to describe the circumstances under which I needed to have my phone's contents backed up to preserve county records.
At the end of the day where this case goes next is entirely up to Judge Schlechter. I believe the county presented rational arguments for the return of the stolen files from those who possess it currently. I believe the county presented rational arguments for the case to continue to discovery so that the county can depose individuals to learn more about who has the files, how such files were obtained, and to whom files have been shared. This case is much larger than just me. There are a lot of innocent, unaffiliated individuals who now have their private medical information out in the public--including current and former county employees---due to no fault of their own. These files were in the care and custody of the county's IT department and we believe it is wholly appropriate for the county to work through the courts to retrieve these stolen county files.
And to the defense the attorney for Gannett put forward, at some point some court, somewhere, will need to rule on this to answer this very important question: Where is the line for what the media can and cannot do because of the protections they enjoy under the 1st Amendment. Where is the line? And when I ask that, rhetorically speaking, I mean--does press freedom and legal precedents from last century allow the media to transcend and violate existing state law?
The PNJ readily admit they possess the files at issue here, which files contain the personal identification information on more than a dozen local citizens. The mere possession of data like this is a felony under state law 817.5685. How does the media's possession of my daughter's bank account number, my son's tax form and my other son's social security number serve a public purpose or the public interest? Answer: it doesn't. So if the folks that possess stolen personal information are given leave by the courts to keep such data in contravention to state law---doesn't that serve to encourage more folks to engage in the nefarious conduct of stealing and possessing others' personal identification information?
Really--where is the line for the "press's" immunity? Could they have child porn on their computers if they were using such disgusting information for a story? Could they protect a source if that source admitted committing murder? Where is the line the press can't cross---and does state law trump the press's right to hold data unlawfully?
Maybe, just maybe, this little case might start to provide an answer to this question. We will see.
14 comments:
Jacqueline Aimee Rogers
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JUST FOR FUN ...
If you watched the Replevin/Conversion hearing on Thurs, Feb. 15, 2024, for the lawsuit filed by Escambia County on behalf of Jeff Bergosh in an attempt to retrieve the contents of his personal phone (that he had put on the public County server so County IT staff could work overtime trying to "jailbreak" his phone) and to silence anyone from discussing what his texts revealed ...
Then you might have heard Jeff Bergosh testify that he *knew* Defendant Alex Arduini had a copy of his phone contents (Alex doesn't) because of a screenshot someone (who?) sent Bergosh of a post on ECW.
(I'll link to some audio and analysis of the hearing in the comments.)
UNDER OATH, Bergosh said that the screenshots came from Escambia Citizens Watch, a social media page that nobody reads and "only had about 15 people in the group."
UPON CROSS EXAMINATION, when asked about the screenshots again, Bergosh quickly modified his answer to say that ECW had a "membership of 10,000" he thought, but "only the same 15 people participate"
He wishes. 🤣🤣🤣
In fact the entire County Administration wishes that the citizens were insignificant and easily ignored. 😎
The reality is that OUR VOICE IS GROWING!
By crowdsourcing public records and information, and discussing topics of public interest, the Citizens of Escambia County and beyond are well positioned to understand what our public officials are doing and not doing, and what they are hiding.
*** And ECW is not the only watch dog group!***
Commissioners may control the standard media.
(See WEAR TV's station manager, Randy Wood 's frequent interaction in the Bergosh texts and think about how that affected Channel 3's news coverage! And look at campaign advertising revenue from Barry to NorthEscambia and do the same.)
But they DON'T CONTROL SOCIAL MEDIA and that bothers them!
Escambia Citizens Watch (ECW) is not perfect and sometimes it is messy because it is made up of HUMANS with all types of backgrounds and perspectives and foibles.
Numbers never really mattered to me and we've never pursued advertising (we get enough free publicity from the Fab Four Fanboys and girls complaining about our free speech to their idols in public venues ... Thanks, y'all! 🥀)
But after hearing so many untruths (perjury?) in the hearing, I was curious why Comm. Bergosh and Wes Moreno are so bothered by ECW so I looked up the latest stats.
Going into our 12th year, somehow we have managed to shed some light on public interest issues and educate ourselves in the process.
Accountability and Transparency only frighten those who are doing bad things.
True leaders want the citizens to know and understand what they are doing on their behalf,
and they DON'T GASLIGHT the public and their own employees and tell them that what they see with their own eyes and experience in their daily lives is a figment of their imagination!
We can do better. We must do better!
In the meantime, to the Mighty "15", I say, Carry on!
Educate yourselves and your neighbors and vote wisely.
wow this lady never stops
So let me get this straight, you were the one that voluntarily gave your entire phone and all of its contents to the county.
You were the one in fact using your phone for county business. You were the one that turned your “personal” cell phone into a county phone and you gave the county all of this personal sensitive information. It’s no different that you using your county computer and storing your personal and confidential information on it.
Maybe it’s time for you to take some personal accountability for once and stop wasting the county’s resources on this personal vendetta of yours.
The one who took the text files have the vendetta not Jeff Bergosh
It was done to cause him and his family grief and aggravation
Its mighty sad when you cant trust the dept that retrieves text messages I am sure some one
had it out for Jeff. It is very clear they dont care who they hurt.
This is an interesting situation. On one side, when Trump asks hackers to get DNC materials, people whine that’s wrong or, on the other side, they like the spilt tea. Any way you see it, your either outraged or happy depending on who’s side your on. When it happens locally, same thing. I am concerned someone could steal this information from a county server. Sine you’re not a high ranking politician, this can only mean it’s an inside job. Someone in IT, or the Clerk’s office, or Doug Underhill as he’s a cyber computer guy stole it from the county. Of course Owens got it, as he and Doug hated you and he ran against you. I guess he won’t now as he’s drawn too much attention from FBI, has taken the 5th during this case and has his ethics issues to deal with (and it’s weird how Andrew McKay fails to mention this on his morning show info on this, I guess he dislikes you and spins the news like all the media today).But it concerns me about the state of security at the county and employee information. I don’t care if you or anyone uses your personal phone for work/business, that’s the world we live in, work 24/7. I’m glad you work a lot. I hope the FBI solves this for the sake of all citizens and all our private information. I guess this is lost on Andrew McKay , but probably not , he’s smarter than that. He’s putting his hatred of you ahead of real journalism. Probably why he’s had to leave other locals and change his name. Probably CAT Country should tell him to report it straight before it ruins their legitimate reputation. Maybe they don’t care.
Correct. Even a monkey understands the consequences to his actions more than this Commissioner. If he was so worried about his daughter’s bank account why didn’t he protect her? He could have easily brought his phone to a repair shop. Hopefully he gets a SLAPP suit ruling from this judge. Little men like Commissioner Bergosh are the ones who puff up biggest and throw smashed up bananas against the walls of the cages they made for themselves.
After watching the hearing, I waited for things to settle in my brain to make sure my first impressions coming away from it stuck. For what it's worth, which is very little, here's some armchair commentary from someone whose personal property was stolen along with Commissioner Bergosh's, and who isn't looking for any personal, material win, but hoping for the best, right, fairest, least personal, and apolitical outcomes according to my personal beliefs, understanding, and principles (which of course nobody has to agree with).
1. It won't be a shock if the judge rules the County doesn't have standing. Although I hope the judge accepts the County's argument on standing so that depositions might reveal more about the theft than any investigations have so far, I don't feel any differently about my feeling that this would have been better brought by Jeff Bergosh as a private citizen whose property was stolen than Commissioner Bergosh who had justifiably redactable public record content stolen. Or perhaps better said, it should be brought in addition to a personal suit. Because the intersection of content that is sensitive information about County employees that would never constitute public record squarely puts the County in ownership of that content. Just don't know if the judge is going to buy the whole kit and caboodle argument, regardless of the byzantine nightmare of separating all that out.
2. Speaking of nightmare tasks, the fact that the County Attorney's office left so much content in the redacted versions of the public record that clearly and in no uncertain terms is NOT public record, could end up having bad ramifications for the case. I'm guessing they just missed some since it was such a Herculean task, but if the County tries to make any argument that examples such as one of the defense attorneys provided are actually public record, when those instances and so much else in the file clearly aren't public record, that argument could tank the cases.
3. If the County is ruled to have standing, the PNJ--alone--seems to me to have every right to retain the property, and if I'm going to be painfully honest about it, I have to hope they are allowed to do so. Freedom of the press is far more important than the sum total of the private messages on the phone, as horrible as the theft was. And this is hardly the Pentagon Papers. I will fall off my chair if the judge doesn't rule for the PNJ, but then I don't know anything about him or his politics and principles. I'm sure there are a handful of judges out there that would side with republicans trying to rip down freedom of the press and speech in Tallahassee with their wretched defamation bill, as well, and lord knows Clarence Thomas would love to get his hands on an attempt to shut the press up about him. As much as I thought Jim's handling of the texts was trashy, and beneath him (whom I believe in general to be a pretty fair guy the last few years of his reporting, and imagine was under pressure from upstairs to produce), I don't believe the PNJ broke any laws in publishing anything they've published. Just because I can't stand the bias and dishonesty of many writers past and present, and I loathe Gannett allowing a media source to become a puppet for boutique development interest, doesn't mean I want to see the Fourth Estate punished in place of whoever stole the texts and passed them to Johnny Boy. At first it seemed common sense that they shouldn't have stolen material. But it didn't take more than an hour of Googling to be reminded of all the precedent for them being allowed to have it, and why it's so important that they can. I guess if there's some legal way to split the baby and have them turn back over the sensitive security information, that would seem like a fair outcome, but I doubt an HOA gate is going to out-sensitize the Pentagon safes.
(con.)
4. Arduini and Owens have no right to the same legal protections as the PNJ. Arduini's Monty Pythonesque stammering--red, no blue!--at the prompting of (most likely) his wife off camera should be enough to cast doubt on his veracity under oath, even beyond his bullshit answers that would have us believe he speaks in the royal we (now that he knows what the term means). My fear is that, if the judge peels the PNJ off the suit, it will be too tempting just to let that prick off so he doesn't have to deal with his sneering and comical self-importance and it makes for a cleaner case. Hopefully the prospect of social media howling on "HE LETS OFF THE PRESS BUT NOT THE CITIZEN ADVOCATE!!!" won't influence his decision, as Arduini is, in my opinion, nothing but a punk, loser check kiter with a previous history in trafficking in stolen County material. (I wish the County would have provided his previous posts where he was wisecracking about Commissioner Barry's personal information as an exhibit, along with him leaning over Eric's shoulder to take photos of his text messages in chambers, which was a horrendous violation of his privacy, to absolutely no public important of use.) Edler finished up her epic court loss to JJ and me on zoom due to covid, and I never had to have my husband (or anybody else) off screen to prompt me during a hearing. Then again, I don't often have to change a "yes" to a "no" because I'm trying to keep my lies straight. Even if he never physically retained a copy of any portion of them, you can bet he laid eyes on them previous to the redaction.
5. Dennis Green's comment about ECSD deputies all knowing that if they made one business comment from their private phones it "made them discoverable" makes them sound like a bunch of dopes who think that if they don't use their personal phones for ECSD business, they're not discoverable. And that all they have to do is say "no there's nothing" and that protects those phones. His comment about the schizophrenic legal approach would be true enough without the intersection of sensitive info owned by the County--and it's not clear whether he actually understands that.
6. Hopefully the case against Arduini and Owens will be allowed to proceed, and if it does it will be very interesting to see what Jonathan Owens pleading the 5th will yield.
Regarding Paragraph 6, what is the ramification of invoking the 5th Amendment in a civil matter like this?
Its does not surprise me Owens too the fifth.
He pop up and speaks when he wants to attack like he did accusing
Steve Barry of interfering in a investigation. I witnessed him do it
At District 5 town hall. Some people have no class.
This county is crazy! Especially the Navy Commissioners. Let me get this straight, Crazy Doug Underhill encourages his aid, Jonathan Owens, to run against you, a sitting commissioner. His guy Owens loses, and Crazy Doug becomes more of a pariah and doesn't run for reelection as he knows he's going to lose due to his antics. Then we get crazy, maybe more goofy and definitely not smart, somewhat simple really, Mike Kohler running the same play(what's up with that Hollywood name, is he related to the toilet magnet Kohlers?)? So, Simple Mike gets his aid to run against you, again a sitting Commissioner, who history shows will lose. What is this Deja Vu all over again. Simple Mike will then be a pariah, not be able to get anything done for his district (just like Crazy Doug because he ran his aid against a fellow sitting commissioner) and then not run for reelection because he can't win after repeating Crazy Doug's weirdo antics. What a disaster District 2 is and has been for almost 20-years. Anyone with half a brain knows you don't run your aid against your peers. What a disaster for his constituents (me). It is a lose/lose no matter what happens. I didn't have to graduate from Lincoln High School and Navy Boot Camp to figure that out.
Actually Mr. Green is correct. The Sheriff would have to get a search warrant for any personal phone not used in county business and the county could not compel the deputy to have his phone searched for public records. So there’s that.
12:32 (and I don't know why I can't respond in line on my laptop but only my phone)
There was sort of a surprise gotcha during the hearing for either a lay person or an unprepared attorney that, in a replevin case, if the defendant pleads the fifth, as a result they give up their right to argue for why they should be able to keep the property, and they have to cough it up. It seemed to me like a baked-in forfeiture of the contested property, which makes sense. It's either stolen or it's not.
That's the best paraphrase that I can make, which probably isn't great, but you get the idea:
--Green says Jonathan is taking the fifth
--Stephen West reminds the court that in that case Jonathan has to cough up what he stole
--Arduini's attorney says Arduini is taking the fifth
--West again reminds the court that doing so will remove the possibility for him to make argument against returned any of the disputed possessions he might hold
--Arduini's lawyer has a second think and the judge offers a 5 minute recess
--When they come back, Arduini testifies but Jonathan stays clammed up.
That's all taken from memory, so please consider it a paraphrase that may include lapses in memory.
Not being a lawyer, I have zero idea what this could result in if the case against him moves forward. The FBI and SAO already know that he possesses and has transmitted stolen property, so it's not like they need him to cough up the goods in order to prosecute him--he has already admitted his guilt publicly, multiple times. It would be interesting to see what version of the stuff he provides back. If he doesn't give it back, I have no clue. Maybe that puts more pressure on the authorities to arrest him. (?)
Either Owens and Green weren't legally prepared, or they are banking on the case not going forward so his pleading the Fifth is moot (or both). If I had to guess, it's the second, because Green didn't seem surprised by this aspect of the law while Arduini's attorney did. Who knows. Seems to me that an attorney sitting there like a stump with all expression drained from his face can be a good or bad thing.
10:14 PM okay, so this is where all the layers get complicated, and I don't pretend to know how they all work legally on their own or together.
But using the sheriff's department as an analogue necessarily confused the issue, because the sheriff has the ability to seize stuff, right? haha see what he did there (I don't know about consciously).
So there's these levels at least:
--HR/company phone: any boss or company has a right to all the contents of any device. With ECSD having the right to all content from any ECSD device.
--Sheriff's right to seize evidence, which sometimes includes a warrant and sometimes doesn't; and
--discovery through a Court proceeding beyond or apart from a search warrant.
And then all the ways those three things can combine, with the additional thing of, just because somebody says they haven't used their personal phone for work communication, there may be good reason and evidence not to believe that.
So all I was saying is that "every deputy knows one business communication from a personal phone makes it discoverable" was a super unhelpful, false, and complicating analogy that really dumbed down all the different legal aspects. It was perhaps a successful political statement, but I doubt it did much for his client legally.
All depends on the judge, as everything always in court. I read about this judge's background and he seems to be super experienced and seen a lot of complicated crap in his time, in both criminal and civil. (He seemed so darn young to me...guess I'm just getting old.)
Studio 850 got the video of the hearing from WEAR TV and posted it for the public on their Facebook site:
https://www.facebook.com/studio850/videos/712973304323298/
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