First Amendment Challenge to Child Online Protection Act

Earlier this year Judge Reed of the Eastern District of Pennsylvania ruled that the Child Online Protection Act (“COPA”) is facially violative of the First and Fifth Amendments, and permanently enjoined the Attorney General from “enforcing or prosecuting matters premised upon COPA at any time for any conduct.” The government appealed.

Yesterday amici curiae filed a brief with the Third Circuit, expressing their concern “about Congress’ attempt to censor what this Court has recognized to be a ‘dynamic, multifaceted category of communication’ – the Internet – by transforming it into a ‘child-proof’ medium whose ‘level of discourse’ would be reduced to that ‘suitable for a sandbox.’ The First Amendment does not allow such sanitizing of public discourse, however well intentioned.” The Center for Democracy and Technology, one of the eighteen amici, includes a link to the brief on its website.

Plaintiffs/Appellees include American Civil Liberties Union; Androgyny Books, Inc., d/b/a A Different Light Bookstores; American Booksellers Foundation for Free Expression; Addazi, Inc., d/b/a Condomania; Electronic Frontier Foundation; Electronic Privacy Information Center; Free Speech Media; Philadelphia Gay News; Powell’s Bookstores; Salon Media Group, Inc.; Planetout, Inc.; Heather Corinna; Nerve.Com, Inc.; Aaron Peckham, d/b/a Urban Dictionary; Public Communicators, Inc.; Dan Savage; and Sexual Health Network.

Amici curiae that filed yesterday’s brief include American Society of Newspaper Editors; Association of American Publishers, Inc.; Center for Democracy & Technology; Comic Book Legal Defense Fund; Computer & Communications Industry Association; Freedom To Read Foundation; Information Technology Association of America; Internet Alliance; Media Access Project; National Association of Recording Merchandisers; National Cable Television Association; Net Coalition; Newspaper Association of America; Online Publishers Association; People for the American Way Foundation; PMA, The Independent Book Publishers Association; Society of Professional Journalists; and United States Internet Service Provider Association.


Internet-Ordained Clergy, Online Gambling, and the Regulation of Online Video

A few items that caught my eye last week-

  • According to the National Law Journal, “Internet-ordained ministers are legal in all 50 states, except for certain counties in Virginia, Pennsylvania and North Carolina, where the practice has faced legal challenges in the past decade.” I wonder how those counties feel about weddings officiated by Rolling Stone-ordained clergy. Anyway, check out this NLJ article highlighting some of the risks presented by Internet ministers.
  • CNET’s News Blog featured a detailed post on the ins and outs of online gambling, including the 2006 Unlawful Internet Gambling Enforcement Act, lobbying efforts to scale back the law, and the purported benefits of playing poker.
  • The Progress & Freedom Foundation’s Adam Thierer shares his concerns relating to some current attitudes toward the regulation of online video, as evidenced by a recent 463 Communications/Zogby International survey. Adam’s post links to the survey, which includes a number of other ‘interesting’ findings.

Website (search engine?) not entitled to Section 230 protection for FTC Act violation

If the title of this post didn’t really grab you, how about the fact that I’m reviewing a recent decision handed down in the District of Wyoming? Yep, Wyoming, which as you may know (I didn’t) sits within the friendly confines of the Tenth Circuit.

Here are the undisputed, relevant facts as I understand them. The opinion is a little thin on the inner workings of the subject website during the relevant time period. If anybody has some additional insights and/or has explored the docket closer than I have, please jump in.

Prior to the January 2006 enactment of the federal Telephone Records and Privacy Protection Act (which criminalized the sale, transfer, purchase and receipt of confidential phone record information), Accusearch, Inc. (“in the business of information brokering”), by means of its website, advertised the availability of, and accepted orders for, consumer phone records, which even before the TRPPA was passed were deemed confidential under federal law. So somebody interested in who I called in 2005 from my landline (or cell), how long we talked, etc., and who doesn’t think that I’d voluntarily share that information with a stranger (safe bet), could apparently submit an order at and obtain the sought after information via the website (for a fee, of course, paid to Accusearch).

To fill its orders Accusearch paid third parties to procure the requested information. Given the nature of the data, the third parties utilized illegal methods to obtain same. These “wholesale” dealings were apparently via email, and Accusearch paid the third parties for their services.

In May 2006 the Federal Trade Commission filed suit against Accusearch and Jay Patel, its sole officer and director, accusing the defendants of an “unfair business practice” in violation of the Federal Trade Commission Act (here’s the accompanying press release). The FTC did not, however, name any of Accusearch’s third party procurers, or seek to hold defendants liable for their wholesalers’ illegal conduct. Instead the FTC’s beef was that “[e]ach time the Defendants placed an order for phone records, they caused others to use false pretenses and other fraudulent means to obtain confidential consumer phone records.” In other words, “the ‘unfair business practice’ relied upon by the FTC is Defendants’ obtaining and selling of confidential consumer phone records where that practice was necessarily accomplished through illegal means.” (emphasis added).

Late last month Judge William F. Downes granted the FTC’s motion for summary judgment, having found that “Defendants’ practice of selling consumer phone records constitutes an unfair business practice within the meaning of” 15 USC 45(a). But not before Accusearch’s counsel argued that functioned as an “interactive person to person search engine,” merely an intermediary between “searchers” and “independent researchers” and thus was entitled to Section 230 protection, given that the FTC’s core allegations, according to the defendants, were that the defendants “disclosed, made available or sold information.” The court’s order covers both FTC Act liability and the applicability of Section 230.

On the Section 230 point, the FTC countered that any “publication” here by “is not the type of publication contemplated by Section 230 of the CDA. The FTC . . . seeks to hold Defendants liable not for ‘publishing’ anything, but instead for committing acts in the course of trade or commerce, i.e., buying and selling.”

The court zeroed in on two key issues impacting whether Section 230 immunity would apply. First, did the FTC seek to treat the defendants as publishers? The court quickly concluded that such statutory requirement was “ambiguous.” (understandable in my opinion, particularly in this context). Seeking evidence of congressional intent for guidance, the court looked to Zeran, which pointed to the threat of tort-based lawsuits, and desire to encourage self-regulation of offensive material. With that the court concluded without a great deal of analysis (but after expressing skepticism about defendants’ search engine claim) that the FTC’s claims here do not “seek to treat Defendants as a publisher within the meaning of the CDA.”

The second (now moot?) question was whether participated in the creation or development of the subject consumer phone records. On this point the court stated that

[w]hile Defendants made admittedly few changes to the records themselves, the Court finds that by soliciting requests for such phone records and purchasing them for resale Defendants ‘participated in the creation or development of the information, and thus do not qualify for §230 immunity.

Thus the District Court presumably had in mind, but did not cite, the Ninth Circuit’s decision. Several weeks later of course the Ninth Circuit agreed to rehear en banc. Regardless, in light of the more reasoned analysis of the publication issue, I imagine many people will consider the above language dicta.

Concluding that the defendants’ “strained interpretation” would “expand Section 230 immunity well beyond its intended scope,” the court denied the defendants’ Section 230-based motions for summary judgment. An evidentiary hearing will be held to ascertain appropriate injunctive and equitable relief, which may include rescission of contracts, restitution, disgorgement of ill-gotten gains by the defendants, and notifying all consumers whose phone records were distributed by the defendants.

An interesting case and decision which I’m still kicking around in my head.

One preliminary observation is that perhaps the order doesn’t say much about how the website operated because, upon reflection, it really wasn’t relevant. The FTC persuaded the court that it was targeting defendants’ supply-side activities – the purchase for resale of confidential consumer phone records which could only be procured by the defendants’ wholesalers via illicit means. The case thus did not turn on the defendants’ delivery mechanism to their customers –, seemingly rendering the content and functionality of the website, and, thus, Section 230, irrelevant here.

As for whether was/is a search engine, here’s what the company presently has to say on the issue.

Xcentric sued in Nebraska for alleged defamation, RICO violations, etc.

Apparently the folks at Xcentric won’t be able to celebrate their recent victory for very long. Yesterday J. Paul Ottis – allegedly “well known throughout the entertainment complex” – filed a forty-four page verified complaint in Nebraska federal court against Xcentric Ventures LLC, its manager Edward Magedson, the company’s attorney Maria Crimi Speth, Ms. Speth’s Arizona law firm Jaburg and Wilk PC, and Does 1-10 (who allegedly served as agents of each of the other defendants).

Plaintiff alleges defamation, defamation per se, interference with business relationships, business disparagement, civil conspiracy, and RICO violations. He also claims that the defendants are not immunized by Section 230 because “Magedson creates and authors the content he places on his web sites.” Plaintiff further asserts that “[o]n information and belief, Defendants create most of the content of the reports for the purposes of posting them on the RipoffReport webpage. These reports are not provided by third party consumers but by the defendants themselves.” Perhaps we’ll see some limited discovery in this one.

Plaintiff seeks treble damages and permanent injunctive relief, including an order barring defendants from “publishing false, misleading, disparaging and/or defamatory words and comments” relating to plaintiff, requiring defendants to remove “false, misleading disparaging and/or defamatory words and comments” relating to plaintiff, including his confidential IP and trade secrets, and prohibiting further postings relating to plaintiff without first providing him the opportunity to respond privately. And there’s more (check out the complaint).

It’s probably safe to say that plaintiff’s counsel, if he hasn’t already, is on his way to Judge Urbom’s chambers to press for the ex parte TRO requested in the complaint. Xcentric will presumably be gearing up for another fight. Stay tuned.

Ninth Circuit: Website not liable for anonymously written, posted emails

Pamela Roskowski, former police chief of Corvallis, Oregon, sued the Corvallis Police Officers’ Association (“CPOA”) and the International Brotherhood of Teamsters, Local 223, alleging libel, false light, and intentional infliction of emotional distress. Among many, MANY other things, Roskowski claimed that the defendants published numerous false and defamatory statements on a website created by CPOA. Magistrate Judge Donald C. Ashmanskas found that the website “allowed, if not encouraged, the public to post messages about Plaintiff. The website was advertised in the local newspaper and was intended to be used as a public forum for discussion about Plaintiff and her service as chief of police.” Roskowski challenged the publication of “unverified” anonymous e-mail on CPOA’s website:

The information complained about is the anonymous e-mails critical of Plaintiff’s performance as chief of police that were made available through the website. Defendants claim that each of these e-mails was posted directly to the website by the anonymous author and that Defendants had no control over who posted or what was posted on the website. Plaintiff has offered no evidence to the contrary. All of the e-mails presented to the court were addressed to the mayor, members of the Corvallis city council and/or radio talk show host Lars Larson and were written by individuals under fictitious names. There is no evidence that the e-mails were forwarded to Defendants prior to being posted to the website or that Defendants had any control over the information contained in the e-mails that were posted on the website. The information complained about by Plaintiff was provided solely by an information content provider other than Defendants.

Playing right into the defendants’ hands, Roskowski asserted that the Defendants were liable for “publishing” the emails. Not unexpectedly, Magistrate Judge Ashmanskas rightfully concluded that “[p]laintiff is clearly treating Defendants as publishers or speakers of the information. Defendants qualify for protection under [Section 230] and can not be held liable for any defamatory information posted by others on its website.”

In a memorandum opinion filed last week (designated as not appropriate for publication/non-precedential), a Ninth Circuit panel affirmed Judge Anna Brown’s grant of summary judgment in favor of the defendants (which was granted after Judge Brown adopted Magistrate Ashmanskas’ Findings and Recommendation quoted from above). Citing Section 230 and several Ninth Circuit decisions, the panel ruled that Roskowski did not demonstrate that CPOA itself made the subject postings, thus, “she cannot hold CPOA liable for the content of the postings.”

No surprises here. However, some of the language in the Magistrate’s F&C (which was left untouched by the District Court and the Ninth Circuit) concerns me. In fact, it would seem that with a few different (but innocuous) facts, this case could have gone the other way.

First, why is a federal magistrate relying upon a 2001 Washington state appellate court decision when reciting the Section 230 immunity framework?

Second, the F&C states that “[t]o qualify for protection under the Act, the interactive computer service . . . can not control the information provided in any way” (emphasis added). I think this is an overstatement. See, uh, Section 230 case law.

Third, in support of the aforementioned quotation, the F&C cites the district court decision in Carafano. While that opinion was affirmed by the Ninth Circuit, it was done so on other grounds, and contrary to the Ninth Circuit’s opinion, concluded that Section 230 immunity did not apply to the subject website. Why is the F&C citing this ruling?

Fourth, and perhaps most disconcerting, the F&C states that “[t]here is no evidence that the e-mails were forwarded to Defendants prior to being posted to the website or that Defendants had any control over the information contained in the e-mails that were posted on the website.” I already made my point about the ‘control’ issue, so I won’t address that again. But as for how the e-mails came to be published on the CPOA website, would it have made a difference if the emails had been faxed to the website owner, and then posted by the website owner on the website? I’m reminded of the Ninth’s Circuit Batzel decision, which was issued well before the Magistrate ruled here. Because in my example the emails would have been provided to CPOA in its role as a provider of an interactive computer service, I tend to think this indirect transmission route would not have made a difference for immunity purposes. Yet the F&C makes no reference to Batzel, and in fact suggests a different outcome would be appropriate under my example.

Bottom line, had CPOA posted material intended for the website, but that it had received via regular mail, or edited materials posted on the website to, say, remove the names of private citizens, it’s possible this case (at least as far as the Magistrate is concerned) would have come out differently.