Physician’s online harassment case is a warning to all internet users, particularly whistleblowers

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Dr. Murtagh reports that others, including AIDS patients, have been harmed by the defendants. He alleges invasions of privacy via techniques like “spoofing” and “pinging” to obtain information about the doctor’s location, and hacks of his email and websites to obtain access to personal photos, financial records and other private information. Personal and confidential emails, psychiatric records and “materials determined by this Court to be protected by my attorney-client privilege,” were posted online, Murtagh complains. [Complaint, February 18, 2015]

An order issued last week by Judge Sherry Bluebond US Bankruptcy Court, Central District of California, Los Angeles Division looks like a major legal victory for Dr. Murtaugh. Judge Bluebond on February 19 ordered defendant Clark Baker to “Show Cause re Contempt” at a hearing scheduled for April 2.  The order references a prior order (September 28) that found “Baker’s failure to comply with prior orders of this court compelling discovery was not substantially justified” and awarded Murtagh “reasonable attorneys fees and costs incurred in bringing discovery motions.” 

Judge Bluebond ordered Baker to appear on April 2 and “show cause” why the Court should not “hold him in contempt for having failed to comply with prior orders of this court” and recommend to the District Court that he “be held in criminal contempt and incarcerated for a period of not less than 90 days” for failing to comply with previous orders.” The judge also threatens “a criminal referral to the U.S. Attorney based on one or more of the following crimes,” among them “spoliation of evidence” and “making false statements in declarations filed in bankruptcy proceeding.” Judge Bluebond further proposes to “enter judgment for Murtagh for damages and injunctive relief in this action as a further sanction” for failing to comply.

The Order refers to multiple instances of “wrongful conduct and violations of its orders” by Baker that include reducing his Hushmail [email] account to 9 Megabytes (MB) from 155 MB of data after the Court issued an order requiring Baker to provide Murtagh’s expert with access to the data. The Court notes that Baker provided “the username, password and other access information for  jamesmurtaghmdtruth.com” as ordered but afterward changed the username and/or password, an action that “violated the implicit purpose of the Order.” Another, jaw-dropping, charge is creating “a Protonmail email account in the name of Sheri Bluebond” (the judge) and intending to “create a website in Judge Sheri Bluebond’s name.” Notably, ProntonMail is based in Switzerland and advertises “user data is protected by strict Swiss privacy laws.”

The online harassment alleged by Dr. Murtagh is a warning to all internet users that someone with an ax to grind can do tremendous harm that currently is very costly and difficult to stop. The threat is greatest for whistleblowers (who routinely experience reprisals) and for organizations that aid whistleblowing and other causes unpopular with powerful entities.

In the digital age, a host of appliances as well as internet and phone devices potentially allow others to conduct surveillance. Organizations like the Privacy Rights Clearinghouse offer guidance on topics like cyber-stalking and maintaining privacy. See our previously published article for an overview of pitfalls that confront whistleblowers trying to preserve anonymity.

Anonymous whistleblowers face daunting security challenges