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Ex Parte TROs — Exceptional, Unless You’re A “Hacker”

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Battelle Energy Alliance LLC v. Southfork Sec. Inc. By Corey Omer — Edited by Abhilasha Nautiyal Battelle Energy Alliance LLC v. Southfork Sec. Inc., No. 4:13-cv-00442-BLW (D. Idaho Oct. 15, 2013). Court Order, hosted by DocumentCloud [caption id="attachment_3841" align="alignleft" width="150"] Photo By: Frank Kovalchek - CC BY 2.0[/caption] Last month, the U.S. District Court for the District of Idaho issued a rare ex parte temporary restraining order (“TRO”) against a software developer, Corey Thuen, his company and 10 Does, enjoining them from releasing software code as open source and ordering that Thuen’s computer be seized and its contents copied. Battelle Energy Alliance LLC v. Southfork Sec. Inc., No. 4:13-cv-00442-BLW (D. Idaho Oct. 15, 2013) (“Battelle Energy”). What made this case one of the “very few circumstances justifying the issuance of an ex parte TRO”? Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006). The determinative consideration for the court was that Thuen is a self-described “hacker”. His company, Southfork — which is in the business of testing system security for its clients by “hacking” their systems and exposing weaknesses — states on its website, “[w]e like hacking things and we don’t want to stop.” Battelle Energy at 4. Judge Lynn Winmill reasoned that because Thuen was a “hacker” — and therefore had “the necessary computer skills and intent to simultaneously release the code publicly and conceal [his] role in that act” — the ex parte seizure order was justified. Id. at 12. The Complaint, Court Order, and Thuen’s Declaration provide an overview of the case. Tim Cushing of TechDirt criticizes the complaint, and the resulting decision, as submitting to two government propagated fallacies: first, that “open source is dangerous,” and, second, that all “hackers are bad”. ComputerWorld and TechNewsWorld also feature thorough analyses of the decision. The plaintiff in the case is Thuen’s former employer, Battelle, a government contractor. Battelle at 2. While working at Battelle, Thuen assisted in developing “Sophia”, a U.S. Department of Energy funded computer program “aimed at protecting the United States’ critical energy infrastructure (oil, gas, chemical and electrical companies) from cyber attacks.” Id. at 2-3. Thuen has since left Battelle to work for his own company, Southfork, and has developed a competing application — Visdom, which he intends to release as an open-source product. Id. at 3. Battelle alleged eight claims against Thuen and Southfork, id. at 4, but the TRO was issued based on the first of these: copyright infringement. In brief, the court found that Battelle had demonstrated a likelihood of success on the merits of its copyright infringement claim on the basis of five of Battelle’s allegations: (1) Thuen described Visdom in nearly identical language as was used to describe Sophia; (2) Thuen used the same demonstration videos to showcase Visdom’s functionality as he did for Sophia; (3) Thuen admitted to copying parts of Sophia; (4) Given the short amount of time it took Thuen to develop Visdom, he must have copied a substantial part of Sophia’s code; and, (5) Sophia was the Greek goddess of wisdom, and Visdom sounds like wisdom. Id. at 7. Evidently, Thuen was not present to refute these allegations, but both he and TechDirt have since presented many arguments to rebut them. The more surprising aspect of the case, however, is the court’s decision to issue a TRO under Federal Rule of Civil Procedure 65 ex parte — without notice to the defense. As the court itself observes, such orders should be granted only in “extremely limited” circumstances, reflecting “the fact that our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute.” Id. at 9-10 (citing Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 438-39 (1974)). Explaining its decision to forgo notice, the court highlighted that Thuen had stated that he intends to release the open source code “shortly” and that he had previously defied his employer by widely releasing a video demonstration of Sophia. Id. at 10. It is clear, however, that the court’s willingness to make an ex parte order hinged on Thuen’s self-identification as a “hacker.” The court appeared oblivious to the fact that the term “hacker” is not always synonymous with the surreptitious theft and dissemination of others’ data (“White Hat”, anyone?). As Hanni Fakhouri, a staff attorney at the Electronic Frontier Foundation, told TechNewsWorld: “[t]he biggest problem” with the decision “is that the court authorized the seizure of the devices by relying on stereotypes and hyperbole about hackers", and “misunderstanding and hyperbole” about open source. Update: In a subsequent decision on a motion for preliminary injunctive relief, Battelle Energy Alliance LLC v. Southfork Sec. Inc., No. 4:13-cv-00442-BLW (D. Idaho Oct. 29, 2013), the court refused to issue a preliminary injunction and dissolved the TRO to the extent that it restrained the defendants from posting Visdom’s source code on the Internet. Indeed, the software had been available as open source on since July 2013. Nevertheless, the court decided to "continue to retain the images of defendants’ computer hard drives during the pendency of th[e] action, pending further input from the parties.” Id. at 21. Corey Omer is an LL.M. Candidate and Frank Knox Fellow at Harvard Law School, and a Submissions Manager at the Harvard Journal of Law & Technology.