“Tormented by Cyberstalker, Ropes Partner Drafts New Legislation on Online Libel”

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From Law.com:

Ropes & Gray partner Joan Lukey is no stranger to litigation battles.

As one of The American Lawyer’s Star Laterals of 2008 — she joined Ropes in June after 34 years at crosstown Boston rival Wilmer Cutler Pickering Hale and Dorr — Lukey has tried more than 70 cases and become a renowned First Amendment lawyer.

But now she is trying to silence a cyberstalker, Leslie Sachs. He began targeting her after she obtained a court order against him on behalf of star client and noted crime novelist Patricia Cornwell in 2007.

After threats on Lukey’s life and others at her firm, the 59-year-old litigator is now drafting federal legislation to go after those who make libelous statements on the Internet.

“All of this relates to the fact that the Internet leads people to function anonymously, which in turn means there’s no accountability because you can’t find them,” Lukey says. “That’s what this is about. We just want to stop Leslie Sachs.”

Lukey’s current problems with Sachs stem from an earlier dispute Cornwell had with him nearly a decade ago.

Sachs, whom Lukey says graduated cum laude from Harvard and has obtained a Ph.D. in religious studies from Catholic University of America in Washington, D.C., claimed that Cornwell lifted portions of her 2000 novel “The Last Precinct” from his own self-published book, “The Virginia Ghost Murders.”

Cornwell obtained a permanent injunction and consent decree from a federal court in Richmond, Va. — where the author lived at the time — preventing Sachs from claiming she plagiarized him. But six years later, after repeated personal attacks by Sachs against her on the Web, Cornwell retained Lukey for a libel suit against him.

But they couldn’t find him. Sachs had moved to Europe years earlier and Lukey says he had no intention of participating in court proceedings. So Lukey says she obtained permission from a federal judge — “I think it was only the second time in U.S. history” — to serve Sachs by e-mail.

It didn’t matter. Lukey says Sachs replied by sending an e-mail to U.S. district court Judge Norman Moon telling him to stick any order he entered where the sun doesn’t shine. Moon eventually found Sachs to be in contempt, held that 45 of his statements against Cornwell were libelous, and awarded the author nearly $36,000 in damages.

But Sachs wouldn’t stop with his rhetoric, so Lukey contacted search engines directly. She tried to get them to take down sites where Sachs was posting libelous statements, which aren’t protected by the First Amendment. With the exception of Yahoo, she says all complied.

When Sachs started adopting aliases to avoid the restrictions, Lukey says she became more aggressive in going after him. Lukey says she even went to Belgium, where Sachs claimed to be living, to obtain a court order against him. Soon Lukey started noticing that Sachs was now going after her as well.

“I became his co-equal object of venom along with Patricia,” Lukey says. “And he was clever enough to start posting things in a forum that gets linked to all the legal blogs.”

Some of Sachs’ more outrageous allegations: that Lukey is a CIA agent who has conspired with Cornwell to have him murdered; that Lukey is a rabid anti-Semite who enjoys persecuting Sachs, who is Jewish; that Lukey bribed a Boston Globe reporter to smear Sachs’ name in a story about Cornwell; that Lukey is a close confidant of former President George W. Bush (in fact, Lukey was John Kerry’s finance director); and that Lukey left Wilmer because Cornwell was being investigated by U.S. Attorney Patrick Fitzgerald.

Lukey says that the latter accusation so infuriated her and perplexed Fitzgerald, that he took the unusual step of publicly stating that Lukey and her client were not under investigation.

After Lukey switched firms last summer, she says the vitriol behind Sachs’ attacks against her increased. But it was the e-mail threatening her and other Ropes employees with bodily harm that finally put Lukey over the top.

“In a long e-mail diatribe to [Ropes managing partner John Montgomery] about what an evil person I am, [Sachs] ended it by fantasizing about my death,” Lukey says. “He wrote something to the effect of, ‘You should be worried about someone coming in and blowing her brains out and taking down some of your staff at the same time.’ That’s when people started getting upset.”

Lukey says the statement also highlighted a flaw in federal law. Since Sachs didn’t say that he was going to do it — only that he wished someone would — the statement didn’t rise to the level of a criminal threat.

A forensic psychiatrist hired by the firm determined that Sachs was talking about himself, says Lukey, so extra security measures were put in place at the firm’s Boston headquarters to make sure that no uninvited visitors made their way upstairs. But those measures don’t extend to the public garage where Lukey parks.

“At night when I leave, I sometimes can’t avoid thinking, when I’m the only one down there, about the risks,” she says. “He could always follow me. It’s a nightmare.”

So Lukey says she’s been working on draft legislation to amend two 1996 laws — the Communications Decency Act and Interstate Stalking Act — to close loopholes in civil and criminal law on what individuals can say online.

“On the civil side, we’re offering to search engines, Internet service providers and Web browsers immunity from liability if someone else posts defamatory content,” Lukey says. “But if there’s a court order at the outset of a libel case, they would be required to provide whatever identifying information they can about the poster, particularly the metadata necessary to track the IP address of the computer.”

As the law now stands in the United States, Lukey says that nobody can track an IP address legally unless there’s a criminal complaint pending. Lukey’s bill would allow law enforcement agencies to conduct such a search if a judge finds reasonable cause to believe there are libelous or defamatory postings without a criminal complaint.

Lukey says the ISPs and search engines would then have an obligation to enforce any court order to pull down or block certain material, but that the burden would be on the libeled victim to alert them to libelous speech on certain sites.

“This is a minimal burden on the good corporate citizens like Google who already do this, but there’s currently no legal obligation to do so,” Lukey says. “[My proposed legislation] would make this a legal obligation.”

On the criminal side, Lukey says the little-used Internet Stalking Act was amended several years ago to include conduct on the Internet, but the language is unclear as to how an individual crosses state lines to harass someone. She’s working to clarify the language and expand it to include individuals subjected to threats and intimidation on the Internet, so law enforcement can track an IP address.

Lukey hopes to have her proposed legislation sponsored by two U.S. senators she’s been talking with, but won’t yet name. (Lukey jokes that knowing Kerry personally doesn’t hurt — the two went to law school together — but the Massachusetts senator’s foreign relations committee connections aren’t ideal for getting a domestic bill passed.)

Lukey hopes to have something passed by the time she becomes president of the American College of Trial Lawyers in October, but realizes that timetable is probably unrealistic.

“I know these things take a long time,” Lukey says. “And I don’t think that this will be a pressing interest to anyone unless a tragedy occurs that puts it in the news.”

“Hopefully it’s not me.”

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