Warman Examined
Charlie Gillis writes an interesting and somewhat revealing article in Macleans on the Warman effect.
Gillis quotes the testimony of Dean Stacey in the Lemire matter:
Then there’s the matter of best practices, which at the commission appear pretty far from best. In testimony at the Lemire hearing, Steacy admitted there were no guidelines telling what he could and couldn’t do while surfing, no rules governing how he identified himself, no boss putting his covert musings on hate sites to any sort of ethical smell test. When asked about adopting online pseudonyms, his response could have been mistaken for a mantra for the whole investigative operation: “No one told me I couldn’t do it.” macleans
In a sense this idea that if no one told the CHRC investigators they couldn’t do something they were free to do whatever they wanted frames the entire CHRC/Warman matter. It is the Cheka Charter especially when coupled with an “informal” proceedure and an in house complainant.
Bouquets of Gray puts up a rather interesting dissection of the claim that Warman was the only possible author of the “Anne Cools” message. His conclusion is that literally any Rogers’ subscriber is just as likely – on the tech – to have been the poster. It is something to be considered in the framing of the the responses to the Warman libel actions.
However, as the Gillis piece makes clear, in the overall context of the unsupervised, investigative excesses of the CHRC, this sort of “bait post” makes a certain perverse sense. The objective was to entrap the “haters” by whatever means possible so long as no one had been told expressly not to do something. Warman’s Statement of Claim has been framed very narrowly, he seeks limited damages in the hope of using an expedited procedure to avoid Discovery.
The challenge for the defendants is to expand the scope of the issues before the Court. Critically, the practices and proceedures (such as they were) of the CHRC need to be exposed to scruitiny.
And, once again, in all of this we have to ask – where is the CPC, where’s Harper? I don’t contribute to the CPC but, if I did, I would switch my contributions to the PayPal accounts of Kathy, Kate, Ezra and Free Dominion.
Update: Buckets of Gray is being cited as having put paid to the tech side of the anti-Warman case. Has he? Here is what I posted on his blog as a complete non-tech guy. perhaps my tech friends can set me straight here.
You raise good point Buckets. As I pointed out in my post linking you the Statement(s) of Defense are going to have to come to grips with what you are saying.However, I am a bit confused about one matter: cache servers, as I understand it, store the pages users access “locally” so that the lag time can be reduced.
Thus, if I commonly go to SDA or the Lying Jackal Kinsella’s pages a copy of those pages will be stored on the cache server.
What I don’t quite get is how, if my understanding is correct, the cache status of the server matters one way or another in terms of Warman’s alleged activities.
Assume for the moment that Warman had (as we know he had) accessed Stormfront before. The cache server saved the page. The alleged Warman computer was hot to post a little screed on Senator Cools and called the page. It got the page from the cache server and then posted the filth. Which was passed on from the cache server.
Nothing abnormal about the tech. And nothing in the least bit exculpatory as to the post.
But, as I say, I am not that tech savvy or network knowledgeable.” comment, bouquets of gray
Bouquets of Gray also makes this comment about the provenace of Klatts evidence:
buckets said…
“Mark. There are some details in Klatt’s testimony that seem to me to point towards the basic reliability of the information. He mentions, for example, a shift back and forth between 66.185.84.200 and 204. In light of what I’ve posted here over the coming weeks, that is believable, and not something that he could make up, even if he were inclined to do so.”
Food for thought.
I’m in no position to deny Klatt’s reliability, only to raise the issue as a rational one to discuss. As the quote from Buckets to me above indicates, Buckets thinks it’s legit data. That good enough for me.
Where’s Harper? He’s suing the Official Opposition for printing contents of Question Period which was already broadcast and printed all over the country by the media. It is torts like Harper’s which have lead every other English-Speaking country to reform their libel laws away from their British aristocratic roots.
Yes, the CHRC practices are beyond anything reasonable. I explained these tactics to a lawyer friend who nearly fainted after they were convinced I wasn’t having them on.
Unfortunately, it seems very likely to me that, based what buckets has said and advice from people whose legal opinion I value, your pals have a problem ( Kate less so ). They stand a good chance of loosing.
Also, it seems unlikely that this particular legal battle will provide the opportunity to “expand the scope of the issues”.
I believe Buckets concedes that individual users may home in on certain IPs, so it might not be that each Rogers subscriber is “equally likely” (from a technical point of view) to be the Cools poster. Still the technical side is much softer than many of us had assumed, unless some incriminating records emerge from Rogers. The non-technical side? I’m not confident in taking a position.
Now here’s a interesting conundrum. Suppose a HRC Operative (“name… rank… I have neither”) posts something rude about gays/ Jews/ Black people/ Muslims, on a right-wing website. If asked by Shirlene McGovern “What was your intent?”, our intrepid hero can reply that s/he’s got the purest of motives – to reveal to Canada, nay, to the world entire, what hatred lurks in the hearts of the regulars on these sites. But what if I read the post and – being unaware that the author is in fact a correct-thinking progressive whose goal is to build a better world, one censored IP at a time – am swayed by it into thinking less of gays/ Jews/ Black people/ Muslims as a result? Suppose I read one of Comr. Warman’s opuses at Stormfront and conclude, “Hmmm, y’know, I was previously undecided about this whole rights for gays thing, but this ‘jadewarr’ hits the nail on the head – they really are a ‘cancer’!”
Because given the eloquence and indisputable logic that left-wingers can call upon at will, their ersatz hate speech is probably likely to win over more converts than the inarticulate gruntings of the typical right-winger. A left-winger sock puppet, unidentified as such, would do more damage to Canada’s social fabric than a barely literate wall-graffitist like Sheyn or Staidle.
In other words, is hate speech an offence of strict liability or is pureness of motive an exculpation?
If someone posts to Stormfront through the proxy, that post would bear the IP of the proxy, not the IP of their personal computer. Thats the point, Jay. The IP in question is not Warman’s; its the proxy’s, and any of 800,000 Rogers subscibers might have been using that proxy.
And IP, you’re talking about a different issue than the proxy server one. EVEN if the IP in question were not a proxy server, due to the fact that Rogers dynamically assigns IP addresses, it would be very hard to pin the IP on Warman, although the pool of possible posters to Stormfront would be alot smaller.
I have suggested here
http://bigcitylib.blogspot.com/2008/04/lance-retracts.html#links
that Jay in particular should begin to back down from some of the nonsense he has posted and offer a few apologies to Warman and the blogosophere in general. Otherwise he will spend the rest of his life having been played for a fool by Neo Nazis.
In other words, is hate speech an offense of strict liability or is pureness of motive an exculpation?
My question exactly. Moreover, how does one extract a single motive from the range of potential motivations, not the least of which could be “the filthy”, and then feel confident in pronouncing it pure?
I have had a difficult time explaining to my children that just because something was not intentional (i.e. an accident), it does not mean that nobody is at fault. I am only just beginning to make headway in this regard. I would see the above as a real set back.
The Gilles quote focuses on one of the more intriguing aspects of this matter, more intriguing and important perhaps than the Warman or Lemire cases themselves. Despite the growing brouhaha that is earning the Commission more and more criticism from the mainstream—-PEN, CCLA, Mercer, Martin, MacLean’s etc, the Commission seems to be taking a dear-in-the-headlights response. All it can think of doing to defend itself is to take the Kinsella approach—i.e. forget the higher principles, just stuff in everyone’s faces the scurrilous language from flyers, bathroom walls, blogs, etc. of the nasties on the fringe they live to silence. I don’t share the view that they are dishonest KGB wannabees. I think they all sincerely believe they are decent folks sitting on the right hand side of God. However they are bureaucrats and they aren’t acting like typical bureaucrats, who generally understand damage control and cutting loses as much as they understand anything. If they wanted to save their mandate and S 13, surely they would have seen by now that they have to address investigative techniques, legal costs and profitable sequential complaints from the same individual. By now I would have expected a flurry of announcements of “internal reviews”, tightened supervisory procedures, requests to Cabinet for legal tweaking here and there, etc. Any experienced bureaucrat would tell them how important such would be to assuage the concerns of a middle mainstream that has suddenly started to become wary of that they used to applaud unreservedly, and also to deflect shots from individual M.P.s before they are organized enough to really put them under the microscope. But, no, they have drawn a line in the sand on everything and refuse absolutely to sit back and see that part of their racket that any first year law student would recognize in five minutes as corrupted.
Not only does this speak to the size of the gulf between the two sides, it presumably shows how the Commission and the “human rights” network that supports it have become a very isolated elite that talks a great deal to one another but to no one else. They definitely should get out more.
I noticed something in the Charlie Gillis article, that I thought didn’t sound quite right.
“As for Warman continuing to file complaints during his tenure at the commission, Fine said that the Ottawa lawyer was not permitted to work on his own or any other Section 13 complaints during his two years at the commission. Any citizen has a legal right to file a complaint, Fine noted, “whether or not they work at the Canadian Human Rights Commission.”
Either Mr. Gillis or Mr. Fine have got the story wrong. It is my understanding that Richard Warman was the investigator who recommended that the Jim Pankiw case go to tribunal.
http://ezralevant.com/2008/03/warman-vs-house-of-commons.html
BCL, if the only basis for the suggestion that Warman posted the Cools post was the IP match up I would agree with you that the cache/proxy IP would be very significant. However, the suspicion rests on rather more than this. First, a pattern of behavior on Warman’s and the CHRC’s “investigators” parts. Second, Warman’s first denying and then admitting he posted under at least one (and, as I recall, several) aliases. Third, the so far unexplained withdrawal of the CHRC’s complaint going to the Cools post when it appeared possible that the Rogers records would be made available. Fourth, Warman’s reported reaction when Rogers announced that it no longer had the records for his account. Fifth the configuration match-up. Sixth the content of the Cools post.
None of these are conclusive in themselves. And, realistically, a direct IP match up would not have been either simply because it would only prove which computer was used rather than who was using it. However, taken collectively and balanced against Warman’s record, I am inclined, on a balance of probabilities, to conclude he posted the material. Apparently Warman and his lawyers think a judge will come to a different conclusion. We’ll see.
More generally, what has become very clear is that the “investigators” at the CHRC operated in a dangerously slapdash and unsupervised manner. They apparently kept no notes of their activities or records of their aliases. They allowed their favorite complainant access to their offices and their computers. Apparently they recognized no rules in their zeal to nail the neo-Nazis they believed are in our midst.
Whether Warman did or did not post the Cools screed is a tiny part of a sinister whole. To expose that whole Canadian journalists and bloggers have taken risks. Happily, the Ontario Court of Appeal has recognized that the public interest and the Charter may limit the scope of libel in situations where an investigation may include defamatory statements.
1) “...Warman’s reported reaction when Rogers announced that it no longer had the records for his account.”
The only account of Warman’s reaction that I have read came from Neo Nazi Mark Lemire, the same guy who thought he had the IP pegged as definitely Warman’s, the same guy who has been legally fighting and losing to Warman for about a decade. Real credible source.
2) “...the so far unexplained withdrawal of the CHRC’s complaint going to the Cools post when it appeared possible that the Rogers records would be made available.”
They dropped it as an unecessary part of the case. It isn’t like its hard to find racist material on sites like Freedomsite. You see this happen in legal cases all the time. Peripheral charges, evidence gets struck. This is just speculating on my part, but the fact that it isn’t uncommon indicates that it probably wasn’t a sinister act. Of course, Mark Lemire interprets it as one, but of course he’s a Neo Nazi who etc. Real credible source.
3)”Second, Warman’s first denying and then admitting he posted under at least one (and, as I recall, several) aliases.”
If you read the entire transcript, Warman had already admitted to posting anonymously on Nazi websites, just not the one in question. Since he’s launched quite a few of these complaints, isn’t the most reasonable explanation that he simply forgot about this one instance?
And of course the PC configuration data whiddles the odds down to one in 100,000 rather one in a 1,000,000.
C’mon Jay, be a man and admit it. You were suckered by Nazis, but now you’ve got better.
BCL, so far Lemire has not, so far as I am aware, been caught lying. As a report of a reaction this seems perfectly consistent.
“They dropped it as an unnecessary part of the case.” How could you possibly know? And the timing was remarkably convenient. Happily, assuming that the Court realizes this is not a proper matter for expedited process we will have testimony from the CHRC as to why that part of the complaint was dropped.
“Since he’s launched quite a few of these complaints, isn’t the most reasonable explanation that he simply forgot about this one instance?” Based on reading various transcripts Warman’s has a memory like a steel sieve. I’m surprised he didn’t post as “Idontrecall”.
Given what we are learning about the procedure – or lack thereof – of the CHRC and its featured complainant/investigator I have to wonder who is suckering who.
> “Kinsella approach–i.e. forget the higher principles, just stuff in everyone’s faces the scurrilous language from flyers, bathroom walls…”
So does WK want the HRC to put CCTV inside toilet cubicles in case anyone draws a swastika amidst all the crudely-drawn pictures of genitals?
Aren’t these largely the same crowd who are worrying that Harper will let GW Bush spy on their library borrowings under the PATRIOT Act?
Jay, Lemire has denied being a Nazi. He’s been caught lying.
BCL, I know that Lemire has been characterized as a Nazi (as opposed to those of us who have been characterized as crypto-Nazis but the like of the Lying Jackal Warren Kinsella) but I had not been aware that a) he was one, b) that his denial has been contradicted.
Jay,
You are now straying into the realm of the willfully ignorant. Lemire’s history dates back about two decades, and has been compiled extensively by folks like B’nai Brith, the Stephen Roth Insitute, and websites such as Nizkor. Please, please don’t drag the Conservative side of this debate into Ron Paul territory, okay?
I realize you feel strongly about this issue BCL, but what would prompt you to write such a thing? Have you seen his membership card? Or, was it that he wouldn’t serve soup to George?
Frankly, I have no idea what or what isn’t Marc Lemire, other than a well-motivated defendant at a HRCT, but this “They’re Nazis” thing is getting a bit tiresome.
Like Richard Warman’s denial, on being asked if he posted the Anne Cools message, the man has denied being a Nazi or a neo-Nazi, yet from what I understand the postings of Richard Warman are more pro-Hitler than anything Marc Lemire has ever written.
Actually, I think the technical data exonerates Warman as I’ve just blogged.
If you read Klatt’s testimony, it’s clear that the user agent data was not a match.
I think it’s perfectly appropriate to debate whether Warman’s methods were appropriate. But in my judgement, one would have to be in tin-foil hat territory to assign him the Cools posting any longer.
buckets, I very much admire the work you’ve done here and the knowledge you bring to bear (which is why I linked your post).
I think you have shown that the IP identity between an earlier acknowledged Warman post and the the Cools post is not depositive. However, that does not prove that Warman did not write the post, rather it demonstrates that more evidence is needed to make the connection. Some of that evidence has been gathered, more is needed.
We know that it was an established “investigative” technique for the CHRC investigators to post provocative things to nasty sites to see who’d bite. We have some evidence that this technique was used by Warman. We have Warman’s own words acknowledging that he did indeed post under aliases to various nasty sites.
Is that enough to win the libel action? I honestly don’t know. It will certainly speak to damages.
In a perfect world it would be lovely to be able to prove absolutely that Warman made the Cools post; in the real world the question comes down to convincing a judge that it is more likely than not that he did and that the Canuck-6 took reasonable care in examining the evidence they had before making the claims they did.
I suspect it will be an interesting trial.
However, that does not prove that Warman did not write the post, rather it demonstrates that more evidence is needed to make the connection
More evidence? That would imply that there is any, which I frankly don’t see. Yes, it’s possible to imagine scenarios that could explain the facts—maybe Warman had two computers, one configured slightly differently from the other; maybe Warman had a system crash and had to re-install; etc., etc. But once you’re in this territory, you are writing crime novels, not dealing with the facts that we have. The only reason anyone thought that Warman had posted the Cools message was that they were led to believe that the ‘ballistics’ were a match. They’re not.
(I doubt this will ever come to trial.)
Jay,
If you’re suggesting that Free Dominion and others can rely on the “responsible journalism” defence recently recognized by the Ontario Court of Appeal in Cussan v. Quan, you better think again. Neither the original post regarding the Cools posting, nor those that repeated the allegation took any of the steps necessary to bring this within that defence. For example, nobody thought to ask Warman if he made the post, one of main elements relevant to establishing the defence.
As for circumstantial evidence that you point to, I doubt that it will add up to proof on a balance of probabilities that Warman made the post, particularly if there are 100,000 potential posters of the comment.
I agree, though, that if this gets to trial, it will be interesting. But given that the defendants seem to have only two legal arguments—the post wasn’t defamatory or that, if it was defamatory, it was true—I don’t like their chances.
Jay,
Does being the former leader of the Heritage Front count as being a neo-Nazi? Or are you and the other speech warriors now trying to rehabilitate the Heritage Front through the back door as a merely conservative organzation?