Defendants Sheehan (hereafter defendants) respectfully request that this Court consider this over-length brief. Plaintiffs Motion presents numerous and complex issues of law and fact which cannot be adequately addressed in twelve pages.

Defendants Sheehan respectfully request that the Court deny the preliminary and permanent injunctions sought by the Plaintiffs.

For the limited purpose of responding to the City's Motion, defendants admit that individual defendants William A. Sheehan and Aaron Rosenstein operate and publish a political internet web site at www.justicefiles.org. This web site contains political information, some of which is critical of law enforcement agencies. The purpose of the web site is to demand greater public accountability for police officers and agencies. Sheehan Dec., Exh. A.

The web site includes identifying information about Kirkland police officers and city officials, including social security numbers (SSNs), home addresses, and home phone numbers. Sheehan Dec., Exh. A. Plaintiffs' conclusory characterization of this information as "private" or "confidential" information is factually disputed. For the convenience of the Court, defendants will refer to this information as the "Identifying Information." It is important to note that the plaintiffs do not contend that the identifying information on the web site is not accurate.

As the plaintiffs point out, the information available at the web site is available to everyone at no charge. This key fact establishes that the web-site serves no commercial purpose. Unlike numerous other persons and businesses that provide the same information for commercial purposes, defendants are engaged in pure constitutionally-protected political speech.

Plaintiffs claim that "every day that sensitive Private Information about [plaintiffs] remains accessible on the Internet, City employees are subjected to an increased risk of harassment, violence, stalking, and identity theft." Plaintiffs' Motion at 10. That claim is disputed. But plaintiffs' motion – indeed plaintiffs' entire case – simply ignores the larger, undisputed fact that, in the Information Age, the Identifying Information is widely available to anyone with a computer. Such information is collected, posted, transmitted, and sold over the internet, in the U.S. Mail, and by the government every single day. Sheehan Dec., ¶¶ 4 and 5, Exh. B, Belec Decl. ¶ 9.

Furthermore, the City present no evidence that the defendants obtained any of the Identifying Information illegally. In fact, it is undisputed that all of the information that the plaintiffs seek to enjoin can be legally obtained from public and private commercial sources. Sheehan Dec., ¶ 3, Belec Dec. ¶ 9. Indeed, when the public controversy surrounding the web site began, this fact was independently corroborated by Wired Magazine:

Dec. William A. Sheehan, Exh. C.

Plaintiffs contend their identifying information was "confidential" and "private." But the very existence of the defendants' web site proves that the plaintiffs' contention is false. The plaintiffs, like most normal people, might prefer that this information be private. But it isn't. Like most of us, the plaintiffs may have made some effort to keep their identifying information private. But they have not succeeded. Like most people, plaintiffs have made their personal identifying information available to countless friends, relatives, employers, clubs, organizations, magazines, credit card companies, banks, businesses, and government agencies. In turn, these sources have made the information available to the public.

In the year 2001, plaintiffs' "private information" is simply not private anymore. Defendants do not dispute the obvious fact that there are some people who will misuse any information available on the internet. But the plaintiffs' suggestion that the defendants' web site has endangered the plaintiffs and made them vulnerable to identity theft is unsupportable. The information is widely available. With or without the site, the plaintiffs face the unfortunate risks of modern life.

It is simply a fact that anyone who wants to obtain personal information about a police officer in order to harm that officer can get that information on the internet. Anyone dangerous and determined enough to commit a crime against a law enforcement officer will able to easily obtain this information even if the Court completely shuts down www.justicefiles.org.

The plaintiffs' suggestion that the defendants' web site has made the plaintiffs more vulnerable to identify theft is equally unsupportable. Clearly, everyone in America who has a credit card is already vulnerable to the 21st century crime of identity theft. But this crime did not start and will not end with the defendants' web site. In fact, the web site does not release banking and credit card information, the starting point of most identity theft. Belec Declaration, ¶ 12. In any event, persons engaged in identity theft are unlikely to target police officers, given that police officers are far better able to protect themselves and apprehend perpetrators than the other hundreds of millions of other potential victims. Id.

Not surprisingly, the plaintiffs have offered no evidence that police officers have become victims of identity theft or that the defendants' web site was used by the perpetrators.

The evidence of other perils faced by the plaintiffs is so weak as to be de minimus. Debra Drain complains of an "unusual number of 'hang-up' calls." Phil Goguen states he has received "a dozen hang-up calls." Drain Declaration, ¶ 5, Goguen Declaration, ¶ 5. Their subjective reports of feeling endangered by the site are nowhere supported by evidence of actual harm.

Finally, plaintiffs have ignored the undisputed fact that plaintiffs are public officials, and the public has legitimate interests in the identifying information posted on the defendants' web site and available elsewhere on the internet.

First, as the plaintiffs admit, everyone has the constitutional right to criticize the performance and actions of public officials, including police officers. Indeed, police misconduct is a widely discussed political issue. Sheehan Dec. Exh. E. But in a world that contains thousands of people named "Mark Johnson" or "Maria Gonzalez," additional identifying information is needed to make sure that public criticism is actually directed at the right person. Social security numbers are widely used by businesses and government agencies precisely because identification based on social security numbers is virtually infallible.

Second, residential addresses and names of spouses are of legitimate interest to the public. Names of spouses and family members help to uncover nepotism, and to discover potential conflicts of interest among officers, lawyers, clerks and judges. Residential addresses allow people to know whether their police officers live in the communities they patrol.

Third, it is a common and entirely lawful practice to conduct background investigations on persons involved in legal proceedings as either parties or witnesses. Other legal uses of Identifying Information include, but are not limited to, finding lost heirs, family members and witnesses; checking credit; collecting on judgments and serving process. Belec Dec., ¶ 10.

Of the aforementioned legal uses, serving police officers with process and subpoenas is of particular note. Police officers routinely use their position and power to evade service of subpoenas and process. Belec Dec., ¶¶ 4 - 7. This is a serious problem for defendants who seek to compel the testimony of officers at their trials. Indeed, only ten days ago, process server Ron Belec used information found on www.justicefiles.org in an attempt to serve Kirkland Detective Riley, who actively attempted to evade service. Belec Dec. ¶ 6. The abusive practice of refusing to accept service is one of the accountability issues highlighted by the defendants' web site. William A. Sheehan Dec., Exhibit A.

1. Whether the identifying information on the defendants' web site was publicly available before the information was posted on the web site.

2. Whether plaintiffs can show that the requested injunction would actually provide an effective remedy for any invasion of the plaintiffs' privacy.

3. Whether defendants have the constitutional right to collect and disseminate truthful information about public officials that is of legitimate interest to the public.

4. Whether the requested injunction is impermissibly content-based and/or not tailored to achieve a compelling government interest.

This response is based on the Declaration of William A. Sheehan, the Declaration of Ron Belec, the attached exhibits, and the files and records herein.

The plaintiffs' request for a permanent injunction at this early stage is premature. This case was only recently filed, and the defendants have had only a few days to address the numerous legal and factual issues raised by plaintiffs' motion. No discovery has been conducted. Additional parties may be joined. Trial in this action is more than a year away. Plaintiffs have cited no legal authority to support their request for a permanent injunction.

This Court may only issue a preliminary injunction if the Plaintiffs establish (1) a clear and equitable legal right; (2) a well-grounded fear of immediate invasion of that right; and (3) that the acts complained of will result in actual and substantial injury. Kucera v. State, 140 Wn.2d 200, 209, 995 P.2d 63 (2000).

Plaintiffs base their claim on invasion of privacy. This tort consists of three elements: (i) that defendants publicized private facts about the plaintiffs, (ii) that the facts publicized would be highly offensive to a reasonable person, and (iii) that the facts are not of legitimate concern to the public. Reid v. Pierce County, 136 Wn.2d 195, 205, 961 P.2d 333 (1998) (citing Restatement (Second) of Torts § 652D (1977)).

Plaintiffs' legal argument is focused on only the issue of whether disclosure of identifying information would be highly offensive to a reasonable person. In light of the widespread use of such information in the year 2001, this contention is debatable, particularly with respect to spouse's names, addresses, and phone numbers. But the Court need not reach this issue because the plaintiffs have completely failed to establish as a matter of fact that either (i) the identifying information on the web site was actually private before it was posted on the site or (ii) the information is not of legitimate concern to the public.

No invasion of privacy can be shown where the alleged "private" information was in the public domain or a matter of public before the information was publicized by the defendant:

77 C.J.S. Right of Privacy and Publicity § 27 at 523-24; see LaMon v. City of Westport, 44 Wn. App. 664, 669, 723 P.2d 470 (1986) (no invasion of privacy where allegedly private material was a matter of public record).

It is well-established that information ceases to be "private" when it is publicly available, even where the person asserting the privacy interest did not originally make it available In this case, the undisputed facts establish that all the Identifying Information on the site was culled from sources available to the public. The authors of the web site did not find Plaintiff Markle's social security number by peering through his bedroom window. They found it in federal bankruptcy records, which are available on the internet. Sheehan Dec. ¶ 7.

Furthermore, there is no invasion of privacy where personal information is of legitimate concern to the public. Near East Side Com. Organization v. Hair, 555 N.E.2d 1324, 1335 (Ind. App. 1990) (addresses and value of landlord's rental properties, including his personal address, were a matter of public record and of public interest). The information posted on the defendants' web site is of legitimate interest to the public for the reasons set forth in §II G of this brief.

Plaintiffs simply assume, with no argument or evidence whatsoever, that there are no legitimate uses for identifying information about public officials, particularly police officers.

The Public Records Act cases cited by plaintiffs are distinguishable and do not address the issues raised in this case. In PAWS v. University of Washington, 125 Wn.2d 243, 884 P.2d 592 (1995), the court analyzed the statutory exemption for personnel records under the PDA. The court asserted – with no analysis or citation to evidence – that social security numbers constitute private information. PAWS, 125 Wn.2d at 598. The court also noted that employee addresses and phone numbers were exempted from public disclosure by statute. Id.

Neither PAWS nor Woessner involved a private individual's dissemination of identifying information that had already been made public and was obtained from legal sources. There is a significant difference between the government disseminating confidential data about its citizens and a journalist revealing non-confidential data about public officials.

Neither case addressed the issue of whether the particular identifying information has already been made public. Neither case actually analyzed the issue of whether the public has legitimate uses for identifying information about public officials. The holding in PAWS and Woessner that such information is exempt from public disclosure by the state is irrelevant to this case, as are the non-Washington cases cited by plaintiffs – Painting and Drywall v. HUD, 936 F.2d 1300 (D.C. Cir. 1991), FLRA v. Dept. of Defense, 977 F.2d 545 (11th Cir. 1992), and State ex Rel. Beacon Journal Pub. v. Akron, 640 N.E.2d 164 (Ohio 1994). These cases also involve records requests from government agencies and are irrelevant to this case for the same reasons.

Contrary to plaintiffs' argument, the undisputed fact that the information on the defendants' web site was already widely publicized before the web site was created completely absolves defendants' of any liability whatsoever. 77 C.J.S. § 27. The plaintiffs' allegation that they have not voluntarily disclosed this information to the world at large is both false and irrelevant. The issue is whether this information was in fact public before it appeared on the web site.

It is true that Painting Industry v. Dept. of Defense, 26 F.3d 1479 (9th Cir. 1994), and Dept. of Defense v. FLRA, 510 U.S. 487, 114 S. Ct. 1006, ___ L. Ed. 2d ___ (1994) hold that employee records were exempt from disclosure under the Freedom of Information Act (FOIA) even if the same personal information was available from other sources. But neither case addresses the common law rule that there is no invasion of privacy where a private individual disseminates information has already been made public. Quite simply, defendants are not government agencies, and their right to re-publish publicly available information is not limited by cases interpreting FOIA or the Public Records Act.

In sum, the authorities relied on by plaintiffs all involve statutory restrictions on the disclosure of information by government agencies. This case is about whether private citizens have the right to disseminate publicly-available information about government officials. There are no statutory restrictions that apply to the defendants' web site. There is no evidence that any of the information was illegally obtained. And the facts clearly show that the information was not in fact private before the web site was created.

Apart from suing defendants Sheehan and Rosenstein, the plaintiffs have taken no meaningful action to remove their identifying information from the public sources that originally provided the information, including the courts, voter registration records, the county tax assessor's office, Yahoo.com's people search and dozens of free and fee-based internet-based companies and search engines that trade in Identifying Information. Sheehan Dec., ¶¶ 4 and 5, Exh. B, Belec Decl. ¶ 9.

The plaintiffs' allegation that they will suffer an "immediate invasion" of their privacy if the defendants' political web site is not shut down is simply unsupportable. They (like the rest of us) are simply too late to close the floodgates. Whether or not the site stays up or goes down, the plaintiffs' information will still be obtained.

Plaintiffs have not shown and cannot show any injury that has been or will be actually caused by the defendants' web site. The plaintiffs have not submitted evidence showing that defendant's web site has harmed them. They have not established that the web site is the source of any alleged loss of privacy as opposed to any of the numerous other public sources of the same information. And they cannot rely on speculation to support an injunction. RCW 7.40.020, Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir.1999) ("A preliminary injunction may only be granted when the moving party has demonstrated a significant threat of irreparable injury."); Caribbean Marine Services Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir.1988) ("Speculative injury does not constitute irreparable injury sufficient to warrant granting a preliminary injunction.").

Plaintiffs claim that they have no other adequate legal remedy. But the order they propose is also inadequate. The cat is out of the bag. And the defendants didn't let it out. And they certainly can't force it back in.

Restraining orders and injunctions "are classic examples of prior restraints" and are presumed unconstitutional. Alexander v. United States, 509 U.S. 544, 550 (1993). Where a party seeks to suppress speech-- even temporarily--that party has the burden of establishing that the speech will not ultimately be found to be protected:

Vance v. Universal Amusement Co., 445 US 316, n. 13 (1993).

Over three years ago, Judge William Dwyer addressed the same issue presented by this Motion in the case of Sheehan v. King County, Experian, et al. NO. C97-1360WD (1998). In that case, Defendant Experian moved for preliminary injunctive relief enjoining Sheehan from publishing their employees' and agents' addresses, maps to their homes, and social security numbers on his web site. Judge Dwyer denied the motion, noting that in the absence of "evidence that [Sheehan] has published anything that could be deemed an incitement to imminent unlawful action" no restraining order would issue. His decision, based on law that is still good today, is attached to this memorandum.

As a general rule, defendants have a First Amendment right to publish information about public officials unless that information is shown to be recklessly false. New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964). The plaintiffs are public officials, see Richmond v. Thompson, 130 Wash.2d 368, 922 P.2d 1343 (1996), and the plaintiffs have not alleged that the information is false. Indeed, the essence of their Complaint is that the information is true.

The First Amendment prohibits any attempt to punish the publication of lawfully obtained truthful information about a matter of public interest "absent a need to further a state interest of the highest order." The Florida Star v. B.J.F, 491 U.S. 524, 109 S. Ct. 2603, 2609 (1989) (vacating judgment for rape victim whose name was reported in the newspaper). The government's asserted interests in privacy and personal safety are not sufficient under this standard where the government itself has failed to use more limited means to guard against dissemination than punishing truthful speech. 109 S.Ct. at 2611. Furthermore,

The Florida Star, 109 S.Ct. at 2613. In this case, it is undisputed that the truthful information on the defendants' web site was legally obtained from public sources, including government agencies, that the same information is widely available on the internet, and that plaintiffs have made no effort to restrain those other sources. Under Florida Star, the plaintiffs cannot establish a "state interest of the highest order" that would be accomplished by shutting down the defendants' web site where the same information remains widely available elsewhere.

In a failed effort to show that the information on the defendants' web site is not constitutionally protected, the plaintiffs equate the truthful information on defendants' web site with cross burning, R.A.V. v. St. Paul, 503 U.S. 377, 112 S. Ct. 2538 (1992), defamation of a private business, Barlow v. Sipes, 744 N.E.2d 1 (Ind. App. 2001), defamation of a former spouse, Dickson v. Dickson, 12 Wn. App. 183, 529 P.2d 476 (1974), and even nude dancing, City of Erie v. Pap's A.M., 529 U.S. 277, 120 S. Ct. 1382 (2000), Ino Ino v. Bellevue, 132 Wn.2d 103, 937 P.2d 154 (1997). These comparisons are patently absurd. The information on the defendants' web site is truthful, relates to public officials, and is of legitimate interest to the public. As such, the information is constitutionally-protected speech that may not be enjoined.

As plaintiffs point out, an injunction that restrains political speech must be both content neutral and narrowly tailored to serve a compelling state interest. Bering v. SHARE, 106 Wn.2d 212, 234, 721 P.2d 918 (1986). Plaintiffs concede that the defendants' web site is political in nature, and it is undisputed that the web site is not operated for commercial gain. But the plaintiffs have not asked the Court to restrain or shut down any of the other widely available sources of the same information and over which the Court could easily obtain jurisdiction.

The Court is being asked to shut down the only web site that has disseminated identifying information about the plaintiffs for political purposes. The requested injunction is neither content neutral nor narrowly tailored to achieve a compelling state interest. It is "tailored" only insofar as it suppresses the defendants' constitutionally-protected political speech but not identical commercial speech. Political speech is entitled to greater First Amendment protection than commercial speech, not less protection. Retired Persons v. Insurance Comm'r, 120 Wn.2d 101, 114, 838 P.2d 680 (1992). Restrictions on speech that favor commercial speech over similar political speech violate the First Amendment requirement of content neutrality. Collier v. Tacoma, 121 Wn.2d 737, 750, 854 P.2d 1046 (1993). Accordingly, the requested injunction is impermissibly content-based.

Nor can the plaintiffs show that the requested injunction is narrowly tailored to achieve a compelling government interest because the injunction would not apply to any of the countless other public sources of the same information. Whether or not there is a "compelling" state interest in the privacy of public officials, the requested injunction is not tailored to further that interest.

Planned Parenthood v. American Coalition of Life Activists, 2001 WL 293260 (9th Cir. 2000), clearly held that the "Nuremburg Files" anti-abortion web site was protected by the First Amendment, and that injunction issued by the trial court must be dissolved. The court did not consider the issue of whether the personal information on the web site constituted an invasion of privacy because the parties did not raise that issue. Planned Parenthood, 2001 WL at n.10.

This Court must deny plaintiffs' Motion. The law, for better or for worse, protects the defendants against the order proposed by the plaintiffs. The plaintiffs must seek their remedy elsewhere, perhaps by exercising their free speech rights to petition the government for strengthened privacy rights.

RESPECTFULLY SUBMITTED this ____ day of April 2001,

By _______________________________

Elena Luisa Garella WSBA #23577

Attorney for Defendants Sheehan