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WILSON v. SLATALLA

June 18, 1997

ALLEN WILSON
v.
MICHELLE SLATALLA, et al.



The opinion of the court was delivered by: RUETER

 THOMAS J. RUETER

 United States Magistrate Judge

 June 18, 1997

 Presently before the court are defendants' motion for summary judgment and plaintiff's response thereto. For the reasons that follow, this court orders that defendants' motion for summary judgment be granted in part and denied in part.

 Plaintiff, Allen Wilson, filed this claim against defendants Michelle Slatalla, Joshua Quittner, and HarperCollins Publishers, Inc. In his Complaint, plaintiff alleges that defendants Slatalla and Quittner made a number of defamatory statements about him in a non-fiction book entitled Masters of Deception: The Gang That Ruled Cyberspace (the "Book"), *fn1" which they co-authored. (Complaint, at Counts I and II). Plaintiff further avers that defendant HarperCollins defamed him by publishing and distributing the Book. (Complaint, at Counts III and IV). Defendants moved for summary judgment in this matter, with affidavits and exhibits in support thereof, claiming that the statements in the Book concerning the plaintiff are not capable of defaming plaintiff, are not defamatory because they are substantially true, and, even if defamatory, some of the statements are covered by the fair report privilege. (Document No. 14). For the reasons that follow, defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART.

 I. BACKGROUND

 A. Facts

 Plaintiff claims that the Book severely tarnished his reputation. Although he is not one of the main characters of the Book, plaintiff is referenced on numerous occasions throughout the Book in connection with the activities of MOD and its members. The alleged defamatory statements relate to plaintiff's participation in the computer-related activities of the group, and the government investigation of plaintiff's involvement in the group. (Pl. Resp., at 2).

 B. The Alleged Defamatory Statements

 In his Complaint, plaintiff alleged that the following passages were defamatory in nature. (Complaint, at P 13). For organizational purposes, the court will utilize the defendants' categorization of these statements.

 
1. Statements Relating to the Eye Center Computer ("Passage No. 1")
 
The "worthwhile project" that Paul and Allen had undertaken was this: they were invading a private computer and programming it to find long-distance calling card numbers. It seemed victimless to them. They needed the numbers to fund calls to further their education. Who was being hurt? Not the person whose calling card number got used, because that person would dispute the bill and never have to pay. Not the phone company, because the filched phone calls emanated from a reservoir of limitless capacity. It was like riding the rails. The trains were running anyway, and a hobo wouldn't displace any cargo in the boxcar.
 
This is how the hack worked. Allen procured the phone number for a computer in the back room of the Eye Center, which stores and updates computer records. And if you must know, it's where he gets his glasses. Paul doesn't ask Allen how he got the number.
 
(pp. 73-74).
 
* * *
 
Paul and Allen needed calling card numbers because they did a lot of long-distance dialing. To each other, for starters. A call from Queens to Pennsylvania is a long-distance call, and who can afford that twice a night? They called out-of-state bulletin boards as well.
 
This went on for months, through the summer and fall of 1989. Paul and Allen shared their "side-benefits" with Eli and other friends. In all, the Eye Center computer found about 150 valid calling card numbers. That was a lot of free long-distance calls you could make. That was thousands of dollars' worth of service that ITT wouldn't collect a penny for. The boys in MOD didn't stop to think about it, really, but there were people who might say this was more than just a prank.
 
The Eye Center hack got so sophisticated that the boys rigged Allen's computer to dial Eli's beeper with each new ITT number.
 
(pp. 74-75).
 
2. Statements Relating to the Crash of the Learning Link Computer ("Passage No. 2")
 
A day or so later, Allen and Eli have a three-way phone call with Paul at college. They tell him what happened.
 
(p. 96).
 
3. Statements Relating to the January, 1990 Searches of MOD Members' Homes ("Passage No. 3")
 
Days later they had gone to meet The Wing, which wasn't able to talk for too long since he was too busy. He had been anticipating this little visit for a while, though. His dad didn't exactly like the idea of their presence and kicked their lack-of-warrant asses out before they got a chance to put to use their years of interrogation techniques classes. Seems they think he showed his teacher a credit report or something. . . .
 
(p. 122).
 
4. Statements Relating to the 2600 Meeting and the Tower Book Store Incident ("Passage No. 4")
 
It's the first Friday of the month, and most of the MOD boys are at the 2600 meeting. Allen's here, visiting for a few days. . . . Suddenly, the hackers rush the pay phones in Citicorp, and in each little carrel, they launch a mass attack. Everyone dials the same Texas phone number: Comsec's 800 line.
 
(p. 161).
 
* * *
 
After eating, the boys wander across Third Avenue to Tower Books, where they flip through the endless shelves of hardcovers. Allen sees a phone receiver hanging on the wall and starts fiddling. It's the store's internal intercom system, and it can't make calls outside the building. But with a device he happens to carry, Allen coaxes a dial tone out of the receiver and immediately places a call to a friend in Pennsylvania. The device he uses is a tone dialer, which emits a noise that simulates the sound a pay phone would recognize as coins dropping into a slot. It works like a bird call for computers. It was a pretty good hack, you'd have to admit, until all of a sudden a security guard comes over. He starts hassling them, wondering why some scruffy kid is fooling around with the store's phone. At that point, things take on the flavor of a segment from the Keystone Kops. Hackers scramble for the store's exit, more security guards appear from nowhere, and Allen is right in the middle of it. Then another hacker gets this bright idea to spray a Mace-like substance into the air as if it is air freshener. The hackers are pumped now, and they rush out into the New York City night. Nobody gets caught. They have a good laugh about it.
 
(p. 162).
 
5. Statements Relating to the Dot-Annoy Computer Program ("Passage No.5")
 
First, log on to Allen's Unix computer. Then leapfrog over to the Apple computer that's hooked up to it.
 
Next, pick a lamer who deserves a taste of dot-annoy.
 
Find his name in the database.
 
Call up the lamer's entry and execute the dot-annoy program. It's easy. This will instruct the Apple computer to follow the simple software program that Allen wrote.
 
(pp. 162-63).
 
* * *
 
The MOD boys could get really cute and add refinements to the torture. One twist is called "Mr. Ed." Invoke Mr. Ed, and Allen's computer would call the target and speak directly to him. Allen's computer, which has audio capability, would blare out, "Hel-l-l-l-o, Wil-l-l-l-l-bur!" over and over.
 
(p. 164).
 
6. Statements Relating to Unauthorized Access of Computer Systems of Credit Reporting Services ("Passage No. 6")
 
John, Julio, Allen, and Eli have become fascinated by the possibilities of TRWnet for reasons that ...

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