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Internet Defamation with Kenton Hutcherson

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With the sense of anonymity, people often post false claims, lies, and private information that can impact a person’s livelihood. Illegal content such as copyright infringement, invasion of privacy, and defamation are on the rise on the internet. But there is something to be done about it. 

Today’s guest is Kenton Hutcherson. Kenton is an attorney and owner of Hutcherson Law. He and his team focus on a very specific niche of law: helping people, professionals, and businesses who have been attacked on the internet. 

Show Notes:

  • [1:11] – Kenton explains the three types of cases he works with – internet defamation, copyright infringement, and invasion of privacy.
  • [2:20] – Kenton shares his background and journey as an educator and lawyer.
  • [4:15] – The pandemic in particular caused a lot of interesting problems that Kenton has worked to solve.
  • [5:36] – Defamation encompasses libel and slander. Kenton explains the difference.
  • [7:00] – Written posts on the internet can harm people many years later.
  • [8:27] – When does it make sense to see a lawyer for internet defamation?
  • [9:50] – Is the damage being caused worth the cost of a lawyer? Kenton describes the clients that usually merit hiring a lawyer.
  • [11:57] – Sometimes a bad situation is to cut your losses and move on.
  • [13:20] – You want a better life, not a better lawsuit. Be a kind and respectful person.
  • [14:46] – Extortion by defamation is unfortunately common by consumers.
  • [15:43] – Not all reviews are true and accurate.
  • [16:56] – The Communications Decency Act has created safety for review sites themselves because it is user generated content.
  • [18:53] – Google has stepped in and will remove some sites and reviews from searches when review sites refuse to take down a false review.
  • [20:50] – Kenton has worked with Yelp previously. He shares Yelp’s policy for defamation.
  • [23:01] – Sometimes people will use throw away accounts that they can’t access again in order to change their review or post.
  • [24:01] – You can also hire a reputation manager who can help bury negative false claims.
  • [25:01] – Kenton shares an example of a case and client he has had.
  • [29:03] – The case Kenton shares demonstrates how people can truly destroy a business.
  • [31:12] – In this case, the convict broke out of prison. He did not stop pursuing Kenton’s client.
  • [32:55] – Kenton’s team contacts Google, Yahoo, Bing, and other search engines to take down posts and reviews for their clients.
  • [34:09] – Simply express your opinion. Do not post false assertions of facts.
  • [35:50] – For both sides, a lawsuit can damage their lives.
  • [36:32] – If you are sued, you cannot discharge this with bankruptcy.
  • [39:05] – Defamation is approached a bit differently if it is a competitor.
  • [40:08] – Kenton describes how an internet lawyer unmasks defamation.
  • [41:56] – You need to have enough materials and content to analyze.

Thanks for joining us on Easy Prey. Be sure to subscribe to our podcast on iTunes and leave a nice review. 

Transcript:

Can you tell me and the audience a little bit about who you are and why you chose to do what you do?

Sure. I’m an internet lawyer based in Dallas, Texas. I grew up in Dallas. As an internet lawyer, it’s a very small niche. There aren’t that many attorneys across the country that handle what we do, at least, focus on that type of law. There are three main areas that we handle. The first and probably the largest is internet defamation, which happens all the time. People, when they’re behind a keyboard, think that they’re invincible and they’ll never be caught.  They go on and say things on the internet that normally they would never do. That causes a lot of problems.

The second area is copyright infringement, which people steal content on the internet all the time and just put it on their website. That’s illegal.

Then the third is invasion of privacy. More specifically, what that relates to is this area of what’s called revenge porn, which is when you have a couple that shares intimate photos or videos with each other. They break up. Then to get revenge, one of the members of the couple, publishes that content on the internet. That’s a very growing problem. Certain states have implemented laws specifically targeting that. Texas, certainly, fortunately, has done that. California has as well. There’s a few other states that have specific laws related to that.

That’s kind of what I do. As far as my background, I grew up in Dallas, Texas. I went to college at the University of Texas at Austin. I majored in economics and philosophy. I also had a third major—it’s kind of a unique major. It’s called Plan II. It’s a special honors program. After that, I taught English in Japan for a year, which was awesome. I went to law school at the University of Chicago. After that, I came back to Dallas and I worked for a litigation firm in Dallas doing complex commercial litigation, very high-stakes litigation. After three years, I started my own practice.

As far as the internet, when I started my practice, we touted ourselves as a technology-focused law firm. The very first day, my very first client had an internet defamation issue. It ended up being a very large issue and we had some success with them. Once you figure out a very unique problem, you start getting more clients. They find you because you’re the person that knows how to solve the problem. That grew and now we handle cases all over the country. I’d say less than half of our practice is based in Texas, but we’re all over the place. Next thing you know we’re focused on the internet.

I assume during the pandemic and during political times, there are all sorts of crazy stuff going online that lead to clients for you?

Yes, that is definitely true. In the pandemic, people have been working at home and they’ve been isolated more. The internet has been an avenue of just social interaction and outreach for them so more illegal conduct has occurred because of that, which is unfortunate. Political, I can’t say too much about that. We get a lot of calls for cases that we end up not taking, that have political components to them. Those are interesting.

During the campaign, we had a client come to us that was one of the major candidates, and we ended up not taking because they wanted us to do it for free. We’re like, “Yeah, that’s nice, but no.”

We have bills to pay here.

Right.

So let’s talk about online defamation. For laypeople who are not lawyers, but who has watched a lot of television law programs, I hear libel, slander, and defamation, in my mind, used interchangeably. Can you clarify what the difference is between each of those?

Sure. Defamation covers the entire category. There’s defamation as a whole, which is essentially making a false statement about somebody that has damaged the reputation that causes them damage, like financial damage in some way. Libel and slander are two separate subsets of defamation. Libel is defamation in written context. Most internet defamation is libel. Slander is oral defamation.

Got you.

That is just verbally saying something. I think that they’ve evolved separately because the elements and everything is largely similar. But most of the libel or defamation law that we have was centered around if you make an oral statement that’s slander. That doesn’t have the same impact, typically, as a written statement.

The defamation laws are really written around statements appearing in the newspaper or magazines where they have a very short shelf life because the statute of limitations for defamation is very, very short. It’s usually one year in most states, whereas if it’s on the internet, it’s there forever. It’s not the same as a newspaper. The laws need to catch up in that respect because they will continue to damage you 10 years down the road. Whereas if it’s in the newspaper, 10 years down the road, nobody’s going to care.

A lot of times, when I’m talking to people where there’s the intersection of law or policy on the internet, there seems to be a fairly trailing gap between what reality is and law when it comes to…

Yes, that’s definitely the case. Congress has been struggling to update the laws, and most of these are actually state laws. Defamation is a state law and so statutes of limitations are based on the states. They need to be updated. That is definitely something that Congress or the various state legislators need to address because it is not in step with the times.

Got you. Often people approach me saying, “Hey, if someone said something bad about me online, what can I do? Can I talk to a lawyer? What should I do about it?” At what point does it cross from where it actually makes sense to get a lawyer involved and where it doesn’t make sense to get a lawyer involved?

The biggest thing is how much damage is it causing you or will it likely cause you? We get calls every day. Somebody says something defamatory about somebody, but it doesn’t actually affect them or their business. It upsets them, but it doesn’t rise to the level of causing them financial harm, loss of sales, loss of business, or loss of a job.

In those situations, we’re like, “OK, look, we can file a case, but you do need to understand that unless it’s what’s considered defamation per se, which is where you accuse somebody of committing criminal conduct or having a loathsome disease or sexual impropriety, that’s considered defamation per se, which means that it’s presumed that you’ve been damaged so you don’t have to prove that you’ve been damaged.”

If it’s not that, then you have to prove that you’ve been specifically damaged by the defamation in order to establish a claim in the first place. If you can’t, your claim just fails. A lot of this is a cost-benefit analysis. Hiring a lawyer and paying $30,000, $50,000, $100,000 or more to file a lawsuit and litigate it, is the damage that’s occurring really worth it?

For us, we see professionals like doctors, lawyers, any sort of individual professional, small- and medium-sized businesses that rely heavily on their reputation. Those are the clients that typically merit filing a lawsuit.

Got you. For a moment, let’s talk about what are the things that we do that put us at risk of someone hiring you and going after us?

Sure.

And then we’ll talk about the other side of it.

This saying can be abused.

Sure. A few things I can say. If you’re in business, there’s the old saying that the customer is always right. That can be abused in a very significant way. Some people deliberately abuse that by making outlandish demands on businesses that sell them things claiming that they’ve been ripped off and stuff like that in some way. So from that perspective, you need to understand that we’re in a different world than we were 20 years ago.

There was that Simpsons episode where Marge writes a letter to the Itchy & Scratchy company about how she didn’t like all the violence in the program. Itchy & Scratchy’s response was, “Thank you, but you’re just one individual. Nobody cares.” She then led this protest and actually got a lot of attention, which is unusual.

Now it’s very easy for anybody out there to go online and cause some real damage to a company, which they didn’t have that avenue of causing damage before. From that perspective, you need to realize that sometimes we just have bad situations. The best thing to do is to cut your losses, make that one person happy in some way, and move on. That’s the first thing I can say is to evaluate it more from a cost-benefit perspective. Your reputation is much more fragile than it used to be.

Then number two is to be a nice person. We’ve had some clients where their personality is very acrimonious, and the reason why they’re being defamed is people just do not like them and how they’ve been treated. In those situations, defamation occurs where somebody is unhappy with how they’ve been treated because somebody, just personality-wise, they’re acrimonious and the person that’s unhappy goes beyond what’s actually happened. They start saying things that are not true.

The drawback to that is working with those clients also can be troublesome in certain respects. But all to say, be nice to people. Treat people with respect. Don’t belittle people. Things will come back to bite you. You want a better life, not a better lawsuit.Don’t belittle people. Things will come back to bite you. You want a better life, not a better lawsuit. -Kenton HutchersonCLICK TO TWEET

Somebody is upset at you and they come in and just say all these terrible nasty things about you. Some of them may be false and you can have a great lawsuit, but a lot of times these individuals that defame you or what we call judgment-proof, don’t have any money. If it’s just a consumer, chances are they don’t have anything. When a judgment against them is for a million dollars for the damage that they’ve caused, they may have $500 in the checking account. So it’s just not really worth it from that perspective.

From the consumer’s perspective, what are people doing that is causing the defamation? Is it that they’re going on Yelp and misrepresenting a situation, or what kind of things are you seeing of what the consumer is doing, which is making them have a client of yours?

We do see situations where it’s almost extortion by defamation. We’ve seen that a lot where you have a consumer that’s unhappy. They’re like, “Look, you have to pay me X amount of money or I’m going to defame you online.” Unfortunately, that happens and there’s really not much you can do. Once they do defame you then you can go after them.

There was a situation a number of years ago where somebody was a pet sitter. Somebody said, “I hired them and they killed my fish.” It was a Yelp review that they’ve posted. They filed a suit against them and tried to get information from Yelp. Yelp posted this big warning on that company’s reviews saying they sue consumers. We haven’t seen nearly that so much.

But the concern is these are disputes. Whenever you have a review system, you are going to have people that abuse that and post false reviews. You shouldn’t take the position that anything goes and that the consumer is always right because that opens the door to abuse, to defamation, and to extortion.

The way that we, as a society, have to deal with these issues is the court system. That’s how we deal with civil disputes. That’s how it’s done responsibly and professionally in a civilized manner, as opposed to uncivil ways of resolving disputes. If they’re not able to resolve amicably out of court, there’s a legal system there to deal with it. Companies, websites, and review sites ought to respect the legal process and the rulings of courts.

I don’t know how much your practice is dealing with the review sites. Do the review sites get in the middle of it, or are you actually going after the review site and the consumer?

We don’t go after the review sites typically. There’s a federal law called the Communications Decency Act, which was passed, I want to say, in 1996. What that says is that if you’re a website and somebody posts content on your site, it’s what’s called user-generated content. As a website, you’re not liable for that content. If it’s defamatory, for example, you can’t sue the website. If the website’s involved in creating the content, then they can be held liable.

Given that, there have been a number of lawsuits against review websites. Most of those have failed miserably unless they can show that the review website was involved in some way in the creation of the defamatory content. You’re left with going after the individual. There’s actually been an evolution. I started my firm in 2007. When I started my practice, there were websites that would refuse to remove any sort of review, regardless if it was false and defamatory, regardless of whether a court said that it was false, defamatory, and illegal. They would refuse to remove it.

The way that we will deal with that is we get a court order against the individual who made the review. Then we would send it to Google. Google would honor the court order and remove the web page that contained the review from their search index, which was very helpful. That’s really where the damage happens, somebody does a Google search for your name, right? That lasted for a very long time.

A few years ago, Google kind of finally gave in because there were a lot of concerns from the internet marketing community about why they allow certain websites to appear. Unlawful content was appearing all the time. They have started to basically say, “Hey, look, if you’re engaged in these practices where you refuse to remove illegal content, we’re not going to keep you in the rankings anymore.” That was a very big deterrent.

A lot of these websites were formed, which is a good thing. Google also created this page where if you find out about some website that is essentially engaging in a protection racket. These websites, often, that host these reviews, you can pay them a lot of money to get them removed, to get them modified, or other things going on. They’re basically abusing their place on Google to make money and also the protection under the federal law. Google said, “Look, we’re tighter. That’s not good practice. If you see that, let us know and we’ll deal with it.” At least, in terms of the rankings and all that. That’s done a lot to clean up the internet.

Since most people are familiar with Yelp, let’s say someone posts a defamatory review on Yelp. You go to court, and you win in court. You’re able to prove that it’s defamatory. How does that review on Yelp get removed? Is it that you’re making the person who posted it remove it, or that you can get a court order to go to Yelp and say, “Here, we’ve proven that this is defamatory. Yelp, you must take this down.”

Firstly, I need to give you a disclaimer, which is that I have represented Yelp in the past. It was a small matter. I was local counsel for them for a matter here in Dallas. It was only one matter. I worked with the legal counsel for Yelp, the in-house legal counsel. They’re good people.

What I can say about Yelp’s policy on that is if there is a reviewer that has made false defamatory content, you can sue them for defamation. You can obtain a court order called an injunction that mandates them to take action. You can have the court order say they are mandated to remove the review from Yelp or wherever it is on the internet. Yelp’s position is that, all right, so you get this court order. The person who doesn’t remove it, you can file a motion to have it held in contempt because it’s a violation of the court order if they don’t honor it.

For contempt, you can have somebody thrown in jail until they comply with the terms of the court order and then also fined to a certain extent. Yelp does not want to take the position or at least, the last time I interacted with them, that they won’t remove the review. They are basically saying, “Look, the order is against the person that made the review. They are the ones that need to comply with it.”

That generally is what you’re left with. You get the order, they don’t comply, you have to file a motion to have them held in contempt. Then they either remove it or potentially can be held in contempt and thrown in jail.

The problem is when the person created the Yelp review using a throwaway email account, they forgot all the login information, and can’t get back into the email because it was a burner email account. So they’re like, “Look, I don’t know how to remove it. Yeah, I created it, I put it up there. But all the login credentials are gone. If I go into Yelp to try to log in and to reset my password, it sends an email to the email account, which is no longer active and that’s a problem.”

When those sorts of situations happen, let’s exclude Yelp from this. It’s nasty reviews about businesses we don’t like that don’t exist. At some point, can the person who’s been defamed go against the platform? Or are they pretty much…

Unfortunately, no, they can’t. The Communications Decency Act gives the platforms pretty, pretty strong immunity. So in that situation, the victim essentially doesn’t have a remedy.

Other than doing whatever techniques they can to bury that review and get right there.

That’s called reputation management where you hire an internet marketer. They try to promote positive things about you on the internet to hopefully bury the negative content. You also can get a monetary damage award for defamation. The problem is most of those awards are worthless because the individuals who are doing it don’t have any money, to begin with.

What’s the most unusual case you’ve run across or that you can talk about?

We’ve seen a lot of different crazy things. My associates that work with me say, when they come work for us, when they go to cocktail parties with other attorneys, their stories are the ones that stand out. Most people are just, “Yeah, I’m working on these mergers and acquisitions or getting documents and it’s tons of fun.” Whereas our cases are much more engaging.

One case we had with a client that is a medium-sized business. For defamation, the victims tend not to be large businesses. They tend to be smaller, medium-sized businesses. If somebody has a negative review about Walmart, well, you already have an image of Walmart in your head. You’re like, “OK, somebody just had a bad experience, but I know what Walmart’s like.” It’s not really going to affect your decision to shop at Walmart that much.

Whereas if you are an unknown business and you hear that this business is defrauding people, they just take your money, and they don’t do anything. Well, that’s going to be a pretty big red flag for you and you’re going to go to their competitor. Particularly if it’s a very significant transaction, why would you risk doing that?

We had a client whose reputation was very important to them. From that kind of perspective where they weren’t a household name, they had a very high price point for what they did, and so reputation is extremely important for their business. They were constantly engaging in internet marketing. They had been defamed a number of times by some people and really hurt their business. They’ve gotten through a lot of that but they continue to invest in internet marketing.

There was this one guy that they hired who said, “Look, I can do all these things to improve your marketing, your reputation, and your search engine optimization online. They said, “Great.” So they hired him and started paying him. Then after a few months, he comes back and says, “OK, well, I know your reputation is super important to you. Pay me a whole bunch of money or I’m going to go online and just destroy your reputation.” Turns out, the guy was living in Eastern Europe.

They contacted me, and I was like, “Holy crap, I know who that guy is.” I’m in these circles. I deal with bad people on the internet all the time. We were always going against them, but I know some of the really bad ones. I’m like, “This guy is the real deal. He will destroy your business. Hands down, he can do it over night.” They ended up paying him a lot of money. He came back and, at this point, they got the FBI involved because it was a lot of money. This guy actually had been doing it to a number of people.

He comes back and demands more money. He was from Texas. The FBI gets him on recordings making all these extortion threats. The guy comes back. He flies into Houston, and while he’s in customs, he gets arrested by the FBI at the airport. They go through and there’s a criminal proceeding. At this point, we’re just advising our client.

He ends up doing a deal where he’s supposed to—I can’t remember what the term was, but it’s supposed to be like three or four years in prison. He ends up getting out within a year going to home confinement. He stays with a family member. What does he do? Right when he gets out, he’s in his home confinement, he defames my client all over the internet to the point that they’re losing millions of dollars.

We’re then brought in, so we bring a civil suit against the guy and also people that were helping him. He gets arrested by the FBI for violating the conditions of home confinement and also for retaliating against the victim or witness. This time, he will not settle. He won’t do a plea agreement with the authorities. So it goes all the way, it goes to a trial. He loses. Then there’s a sentencing that takes about a year after the verdict.

During that time period, we’re engaged in our case. He walks into court for the sentencing, and he has a tattoo on his forehead that says “censored” in block letters. Then on the back of his head—I guess he was bald)—he had a portion of the Constitution written saying, “Congress shall make no law abridging the freedom of speech” written in all fancy constitutional letters. He does that. He basically is telling the judge like, “I have no contrition.” He gets a maximum sentence of seven years. We’re like, “OK, finally. This guy is an existential threat to our client’s business. This is good. He’s finally going to be gone for a while.”

We’re continuing with our civil case, which there are various reasons for continuing with the case. It turns out a month later, he breaks out from prison. We’re just like, “Oh my God, this guy just will not stop.” He keeps going after my client. He’s determined on just destroying them. We’re like, “Look, this is a big problem.” This actually made the news because a prison convict has escaped, and he’s easy to spot because he has this tattoo right on his forehead. That makes the news and he ends up getting caught the next day, which is good.

But, how do you break out of a prison? Right? Apparently, he just walked through the door, I guess. I don’t know. It’s a federal prison. You shouldn’t be able to break out. I mean, this guy, he knew a lot about computers. I don’t know how you break out of prison. All to say, he was finally caught. That was a crazy case. It was like, “OK, everybody in the firm, we need to have a meeting. The guy that we’ve been suing broke out of prison last night. You all need to be very careful about your safety because he could come out and attack us.” Just knowing that something like that happens, that should not happen.

Yeah, that’s very disturbing. Did you get a phone call that he broke out or did you hear about it on the news first?

We got a phone call. Once he broke out, the authorities contacted our client and was like, “Hey, you all need to know that this happened.” Our client called us. We were like, “Oh, that’s concerning.” Eventually, we got all this stuff off the internet. It was over 2000 different pages. There was a ton of stuff.

That is very prolific.

Yeah. Because he knew what he was doing. That made a tremendous difference for our client. Tremendous difference.

It’s almost one of those if you can’t get it to go away, you have to change the name of your business and start over.

Yeah. We’ve had clients that had to do that, unfortunately. The key thing there is we have to get the court order. A court order of some kind that we can take to Google and all the various other websites and say, “Hey, look, this court has deemed this content to be illegal, please remove it.” Most of them now will do it, but there are some that won’t. You can get it out of Google. Yahoo! and Bing are kind of hit or miss about whether or not they’ll remove stuff or not. You have to find the right people and it has to be on the right day. That also being said, the negative stuff doesn’t rank nearly as high on Yahoo! and Bing as it does on Google.

So much of search traffic is Google. Yahoo! and Bing are just not used to the extent that Google is.

Yup.

Before we wrap up, what are the things as consumers that when we’re dealing with a business and we’re frustrated, when we want to lash out and say something mean, what should we absolutely not be doing? What’s going to make us a target of that defamation lawsuit?

Sure. You need to express your displeasure without making a false assertion of fact  and hopefully not an assertion of fact, just simply express your opinions. That’s the best way to protect yourself. The business comes to me, I look at the statements and I’m like, “OK, where is the false assertion of fact?” If there isn’t one, then you don’t have a case. Typically, people don’t realize when making a negative review, they’re not thinking about what the law is typically. They may try to hide their identity. We have ways of unmasking people, but they’re not thinking about the legal impact of their specific text that they make.

I would advise, number one, anything you say must be absolutely true. Then number two, I would stick to expressing opinions as opposed to statements of fact. If the business that you’re reviewing has the inclination and says that statement of fact is false, then you could be opening yourself up to a lawsuit. It doesn’t mean you’ll lose, but you may have to deal with a lawsuit.

And that’s never fun.

No, it’s not fun to be sued. Not at all.

It’s not cheap for anybody.

No, it is not. It gets very expensive for both sides. For both sides, it can really damage their lives where you’re in a situation where through the plaintiff, you’re fighting to recover your good name and it’s costing you a lot of money. If you’re the defendant, you’re like, “What did I get myself into? It’s going to cost me a ton of money to just defend myself.” If I lose—if we’re suing, you probably are—you’re going to face a monetary judgment that there’s no way that you can even remotely have a chance of paying off.

Scary all the way around.

Yeah. What you should also know is if somebody does sue you for defamation, they win and you lose, and there is a judgment issued against you, you cannot discharge that in bankruptcy. There is an exclusion from discharge meaning that if you file bankruptcy, basically what happens is you say, “Here are all my assets, here are all my debts.” Court says, “All right, we’re going to apply X amount of your money from your assets to pay off your debts, or at least a portion of them. Then whatever’s remaining on the debt side just basically gets discharged. It’s gone. It’s wiped away.”

You can’t discharge damages from intentional torts, which defamation is an intentional tort. The idea being that—let’s say you don’t have any money and you go in and you beat somebody up and put them in the hospital. Then you just file bankruptcy and you’re like, “Haha, you can’t get anything from me.” Court says, “No, you did that intentionally. That’s going to follow you around.” You can’t discharge that in bankruptcy. That will follow you. You have to pay it off. It will follow you until you pay it off. You don’t get the fresh start that bankruptcy promises. People should know that as well. Do not defame people.

Yeah, because if you’re found guilty, it’s going to follow you around for the rest of your life.

Yeah, until you pay it off.

You’re very likely not to be ultra wealthy going around defaming people.

Right. That’s true. Most of the people that are defendants do not have very much money. They don’t have assets you can go after. Some of them do. But in our experience, most of them don’t. If you have something to protect, you’re not going to be as cavalier about your statements that can expose you to liability, at least potentially.

In most of the cases that you are working on, your goal is just if you can get monetary damages, that’s good. If they can pay them, that’s even better. Is the real goal just to get the defamatory statements removed?

That depends on the case. In most cases, the value in the case is to stop the bleeding. It’s to get what is out there that’s defamatory off the internet. Depending on the defendant, if the defendant does have resources, then the goal might include to get a monetary damage award.

Also as a competitor, as opposed to just a consumer, that changes the game a little bit. From that perspective, the litigation has more value in pursuing it as opposed to just a consumer that’s upset. If somebody is deliberately trying to damage your business for competitive reasons, there tends to be more money there. They’re making money off of damaging your name. You ought to be able to recover that.

“I’m going to damage the barbershop next to me. That way, I get more customers.” That sort of behavior.

Yeah. It happens. It happens more than you think.

That’s startling.

Yeah. I should also mention the ways that we unmask people, we identify anonymous authors.

Yeah, I would love to hear about that.

Sure. There are three main ways. The first way is the most basic way. You look at contextual clues. If you had a customer that came in and was really upset, was yelling at people, then they leave, and then boom, there’s stuff on the internet. That’s a big clue of who it is. It’s not definitive proof, but it’s a big clue.

Second is where we issue subpoenas to the various websites at issue for IP addresses, email accounts, and things like that. That usually leads to an internet service provider like Verizon Time Warner, Comcast, or whoever. We then subpoena them and we figure out what subscriber had that IP address. That’s going to lead to a location, not necessarily a person. From that, it’s a lot easier to zero in on who the author is.

The third method we use is a lot more exciting, which is we use a forensic linguistics expert, which is how they caught the Unabomber. He published this manifesto in The Washington Post and The New York Times. They sent it out to people and said, “Hey, if this looks like somebody that you know his writing, please let us know.” What they do is they look at known writing samples from certain people, look at emails, articles, papers, memos, or whatever, and they compare them to the defamatory article. They can tell if it’s a match.

The key thing there is you actually have to have writing samples from suspects. If you don’t, they can’t just, say, “Oh, it’s John Smith from Indiana who did this.” You have to have an idea of who might have done it.

Can you get that from Facebook posts? Is there enough material from Facebook posts?

It depends. It’s important that you need to have enough material for the known writing samples as well as the defamatory material, there needs to be enough content for them to analyze. If it’s just a one-sentence thing, that’s going to be pretty hard to match up. But if it’s a paragraph, that’s going to give you context clues for them to match up. The guy that we used is the guy that caught the Unabomber for the FBI.

We had a case where we genuinely did not know who made the posting. We had 20 suspects. We got emails from all 20 of them and sent it to them. He’s like, “It’s not these 19. It’s this one specific person.” We’re like, “Wow, OK.” so we filed a lawsuit and they actually admitted to making the posting and then they had other defenses. But it was really impressive what they’re able to do.

That’s crazy. I guess it makes sense if you’re able to figure out who the Unabomber is, but that was very extensive writing, not a paragraph or two. It’s amazing that based off of a paragraph or two, they can narrow a suspect pool down so small.

It’s really interesting. They’ll look at how you use semicolons, how you use dashes, your word choice. If they look at a writing sample, they can be like, “OK, this person probably is around this age range. They are probably this gender. They probably grew up in this part of the country.” The way that we talk, the way that we write, there’s a linguistic fingerprint to how we operate in that sense. It’s really interesting.

That is truly amazing. If people want to find out more about the services that you offer, where can they find you online?

Sure. Our website is at hutchersonlaw.com and it tells you all about us. Just go there. We have the contact form on there and it has all of our other contact information. Just reach out to us and we’ll be happy to talk.

Great. Thank you so much, Kenton, for coming on the Easy Prey Podcast today.

My pleasure. Thank you.

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