'Skank' blogger to sue Google? Good luck.

Rosemary Port, revealed to be the authoress of the "Skanks in NYC" blog that allegedly defamed model Liskula Cohen, now plans to bring a "$15 million federal lawsuit against" Google for revealing Port's identity, the Daily News reports.

To which I say: good luck.

Here's the legal background. Cohen sought to sue the blogger behind "Skanks in NYC" for defamation. But she didn't know who the blogger was. So she initiated proceedings in New York state court for pre-action discovery under CPLR § 3102(c), asking a judge to order Google, which hosted the blog through its Blogger service, to produce identifying information (e.g., email and IP address) to Cohen. Port (while remaining anonymous), hired attorneys to resist Cohen's demand for information. She argued that the words in the blog were not capable of defamatory meaning, and that the revelation of her identity would violate her constitutional right to speak anonymously.

Google, for its part, sat on the sidelines, submitting "essentially...no substantive opposition" (p. 1) to Cohen's application under section 3102(c). Port told the Daily News, "When I was being defended by attorneys for Google, I thought my right to privacy was being protected." But I think she is seriously mistaken if she thought she "was being defended by attorneys for Google." Again, Google did not resist Cohen's discovery action, and Google's attorneys owe their loyalty to Google, not Port. Google wouldn't turn over the information voluntarily, but as soon as Cohen obtained her court order, Google complied, producing an email address associated with the Blogger account, from which Cohen was quickly able to identify Port.

But now, according to the Daily News, Port will "charge Google 'breached its fiduciary duty to protect her expectation of anonymity,' said her high-powered attorney Salvatore Strazzullo." (Please do make sure to check out the web site of said "high-powered attorney," wherein he boasts that he has been "glorified as an outspoken attorney BY THE INSIDER television show and called 'a cross between a bulldog and Chihuahua' BY NY POST WRITER ANDREA PEYSER.")

No matter how "high-powered" her attorneys, I'm at a loss to see how Port has any sort of claim against Google here. Port's attorneys argued in court to protect her anonymity -- and lost. Is she saying that if Google's attorneys had actively opposed the discovery action, the result would have been different? That seems highly doubtful; the judge fully considered the relevant arguments and precedent, and made a decision that First Amendment expert Sam Bayard of the Citizen Media Law Project concluded is "probably the right call at this stage of the lawsuit." Moreover, Port knew exactly what she was getting into when she signed up for Blogger. Google's privacy policy states that it will reveal information in response to "legal process or enforceable governmental request," which is exactly what happened here. Once the court granted the discovery order, Google had no choice but to comply. Is Port's attorney really going to argue that Google had a "fiduciary duty" to refuse?

Port's attorney Strazzullo says he is "ready to take this all the way to the Supreme Court." I doubt he will find much sympathy there.

UPDATE: Once again demonstrating its inability to get basic legal facts right, Techdirt claims that "Liskula Cohen bizarrely sued Google and an anonymous blogger for putting up a blog...." False, as I first explained last January. Cohen sought pre-action discovery under CPLR § 3102(c), seeking information from Google, but has not sued Google, Port, or anyone else. UPDATE II: Now the author of the Techdirt post says I'm "being nitpicky" because I've "got some weird obsession with trying to make us look bad..." Actually, Techdirt does quite an excellent job at making itself "look bad" when it comes to reporting on legal matters. The lede of the post on Cohen contained two errors: 1) that Cohen "sued Google"; and 2) that Cohen "sued...an anonymous blogger." And rather than correct its errors, it attacks me personally. And its effort to defend itself contains further errors. Techdirt says "for all intents and purposes, [Google] was" sued. Wrong. Google was merely the subject of third-party discovery; it was not remotely "sued." And Techdirt writes, "Cohen went to court, forced Google into court, forced Google to defend itself and a judge ruled against Google and in favor of Cohen." False. As I explained, Google did not "defend itself"; it submitted "essentially...no substantive opposition" (p. 1) to Cohen's application. And the judge did not "rule[] against Google"; it ruled against Port. Why anyone would rely on Techdirt for accurate reporting on legal issues is beyond me. UPDATE III: Goaded by its own commenters, Techdirt finally corrected its error. But it still insists, "In common parlance, the company was sued, which is why pretty much every reporter wrote it up that way." Actually, the real reason some (but certainly not all) reporters made that error is because they're sloppy and don't take the time to make sure they get basic legal concepts right. UPDATE IV: It only gets better. Techdirt is now back to insisting, "She sued." Then why did it correct its post? And citing erroneous newspaper reports for that falsehood does not exactly help its cause.