Wikileaks updates

Here are two up to the minute posts, one at Declan McCullagh’s “the iconoclast” blog, the other at Wired’s Threat Level blog, both indicating that will soon be back online.

I may update this post at a later time/date, particularly when the Court enters a written ruling.

3/4/08 UPDATE: Here is Judge White’s order, entered last Friday, dissolving the permanent injunction.

3/6/08 UPDATE: According to the EFF, the plaintiff has asked the Court to dismiss its case.


Developments in lawsuit

I finally got around to looking over a New York Times article that my law partner Ron Teeple recently shared with me. The article describes, essentially, as inept, an attempt earlier this month by U.S. District Judge Jeffrey S. White to shut down, a website that encourages people to post “leaked” information for the purported purpose of deterring corporate and governmental misbehavior. According to the article, the site has previously posted some particularly sensitive military documents and other closely-held materials.

Judge White’s shut down order (the permanent injunction) was directed at the website’s domain name registrar, defendant Dynadot, and not the website itself, and is apparently full of workarounds for determined fans of the site. The Court also entered a temporary restraining order pertaining to the specific documents at issue in the lawsuit.

Earlier today I came across this article in the Los Angeles Times, highlighting efforts to persuade Judge White to reconsider his prior orders. Counsel for the Electronic Frontier Foundation is described in the article as expressing disappointment with Dynadot’s actions, noting that Section 230 protects the company from the plaintiffs’ claims here. Beyond simply complying with a court order (an order which clearly does more than just provide for the preservation of evidence), it would appear that Dynadot first entered into a stipulation with the plaintiff (the proposed order referred to in Paragraph 4 thereof, a/k/a the permanent injunction, was entered by the Court on February 15th and is linked to above), then became bound by the court’s permanent injunction, and, finally, was voluntarily dismissed from the case this past Monday. It would be interesting to know whether the Court would have entered the permanent injunction if Dynadot had not first stipulated to its terms.

We should know more about where this case is headed after a hearing scheduled for this Friday. In the meantime, here’s a copy of the plaintiffs’ six count complaint, filed earlier this month in the Northern District of California (link does not include exhibits).

On a related note, does anybody know whether the Second Circuit has ruled yet on the defendant’s appeal in a somewhat similar dispute involving

 See my 2/29/08 Update post

Court: Section 230 is an affirmative defense, thus it’s (generally) not an appropriate basis for a Motion to Dismiss

Erik Curran, who apparently served in combat (Iraq? Afghanistan?) as part of the West Virginia National Guard, filed a two count complaint for invasion of right of publicity and invasion of right of privacy against several defendants, among them Café, Inc. (“CafePress”). Curran alleged that his image appeared, without his consent, on a book cover and related t-shirts, toys and dolls. CafePress sells t-shirts which have Curran’s image printed on them, and includes his image on its website.

Last week District Judge John T. Copenhaver Jr. of the Southern District of West Virginia ruled on several motions to dismiss filed in the case, Curran v., et al. CafePress asserted in its motion that Section 230 grants it federal immunity from tort liability and preempts both counts of the complaint. In response, Curran argued that Section 230 is an affirmative defense, and “is not an appropriate basis for dismissal on a Rule 12(b)(6) motion.” The Court agreed that CafePress was asserting an affirmative defense, which the plaintiff is not obligated to plead around. However, Judge Copenhaver devoted most of his Section 230 discussion to the issue of whether CafePress could nonetheless proceed with the Section 230 defense at this stage of the litigation.

The Court referred to cases where “either the parties did not dispute that the defendant was an interactive computer service or there were allegations in the complaint upon which the court could reasonably conclude that the defendants were interactive computer services.” Noting that no such consensus exists here, and that the complaint “states merely that CaféPress sold t-shirts featuring plaintiff’s likeness,” the Court was left to consider CafePress’s assertion that it own terms of service agreement, posted on its website, demonstrates its ICS status.

If we accept the Court’s supposition (which it backs up with several citations) that establishing ICS status is a prerequisite to ruling on a Section 230 affirmative defense in this procedural posture, I’m not sure what the problem is. Is there any dispute that, an Internet website, is, at the least, a provider of an Interactive Computer Service? Perhaps its role as such is irrelevant here, and/or perhaps CafePress acted in more than one capacity here. But if ruling today on the Section 230 issue necessitates an initial finding that CafePress is an ICS/provider of an ICS, what’s the hold up? I’m curious whether the Court is under the impression that one is either an ICS or an Information Content Provider, but one cannot be both, and that such determination is outcome determinative. Note the following paragraph taken from the opinion:

Section 230 of the CDA creates a distinction between “interactive computer services,” which merely transmit information and “information content providers” that create or develop, in whole or in part, information eventually transmitted. See 47 U.S.C. § 230(f)(2) and (3). The former may be exempt from tort liability by the CDA, whereas the latter is not. See id. §§ 230(c)(1), (e)(3), (f)(2) and (3).

Regardless, after considering caselaw on the procedural point of whether the Court may properly consider CafePress’s TOS agreement on this issue, the Court declined to so consider it. Instead the Court directed that “CDA immunity is a question awaiting discovery and exploration, though plaintiff faces an uphill battle given the broad grant of immunity conferred by § 230, as interpreted in the seminal case of” Zeran.

It is not clear to me that Section 230 is even applicable in this case, but if it is, it sounds like the plaintiff is in for a fight. wins one in Florida

You may recall the 11th Circuit’s 2006 ruling in Whitney Information Network, Inc. v. Xcentric Ventures, LLC, et al, wherein the panel held that the defendants had not adequately rebutted WIN’s allegations that the defendants themselves were involved with certain postings on the (“ROR”) website. The Court concluded that the defendants failed to demonstrate they were entitled to Section 230 protection, and remanded to the district court for a determination of whether personal jurisdiction over the defendants was appropriate.

Last week, as previously noted by Eric Goldman and Ryan Dohrn, District Judge Marcia Morales Howard granted (after previously determining that personal jurisdiction was appropriate) the defendants’ motion for summary judgment as to WIN’s single claim of defamation per se of business reputation.

Judge Morales Howard initially considered whether defendant Ed Magedson himself is a provider or user of an interactive computer service. Noting that Magedson had declared that “he is the founder and managing member of Xcentric, the operator of the ROR website,” and that Magedson’s declaration also “establishes that even if Magedson did not qualify as a provider of an interactive computer service, Magedson, himself and as the managing member of Xcentric, is certainly a user of an interactive computer service, namely, the ROR website,” the court concluded that “Magedson is a provider or user of an interactive computer service as that term is defined by the CDA.” This reasoning seems to broaden what I would argue is the traditional understanding of the terms “provider” and “user” in this context. However, I suppose a contrary ruling may have had the effect of encouraging some future plaintiffs to target inappropriate officers and/or other natural persons actively involved with ICSs.

Next, the Court examined “whether the individuals submitting posts to the ROR website were the sole information content providers of the postings about WIN, or whether Defendants were responsible, in whole or in part, for the creation or development of the information contained in these postings.” On this issue, plaintiff noted that the defendants had created category names such as “con artists” and “corrupt companies.” The Court was not persuaded:

The plaintiff “has not presented any evidence demonstrating that Defendants participated in any way in the selection of these categories to describe WIN. . . . the mere fact that Xcentric provides categories from which a poster must make a selection in order to submit a report on the ROR website is not sufficient to treat Defendants as information content providers of the reports about WIN that contain the “con artists”, “corrupt companies”, and “false TV advertisements” categories . . . [r]ather, the authors of the postings made the decision to select these categories to describe WIN. . . . [m]oreover, Xcentric did not solely provide posters with a selection of categories that were negative and/or defamatory in nature.”

Kind of makes me wonder whether plaintiff alleged in its complaint that the category names themselves were defamatory.

Plaintiff’s also offered other Kozinskiesque-like arguments (no, the Ninth Circuit has not yet issued its en banc ruling in the case) that defendants were not eligible for Section 230 protections (i.e., “Defendants actively solicit visitors to post reports about companies that rip-off consumers,” and “Defendants take an active role in shaping the content of the postings on the ROR website by providing guidance to users regarding what to think about in preparing their reports and what type of reports are selected as “Top Rip Off Reports.”)

The Court rejected these arguments as well, noting that, as part of the submission process, the defendants require posters to “acknowledge that a report is valid”, “advise[s] users that reports should be honest, factual, and impartial” and “do not charge users a fee to post a report.” Thus “WIN simply has not provided the Court with any evidence to create a genuine issue of fact as to whether Defendants played a role in creating or developing the postings regarding WIN that are the subject of the instant action. . . . Defendants are entitled to immunity under the CDA from the instant action.”

It will be interesting to see whether the plaintiff decides to appeal this decision.

*     *    *

Interested in efforts to mediate consumer disputes online? Check out this article from today’s New York Times.

Seventh Circuit considers whether Section 230 protects Craigslist from Fair Housing Act claims

Earlier today the U.S. Court of Appeals for the Seventh Circuit, based here in Chicago, heard oral arguments in the plaintiff’s appeal of Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. (“CLC”) v. Craigslist Inc. (“Craigslist”). CLC, as you may recall, is appealing District Judge St. Eve’s ruling that Section 230 protects Craigslist from liability for housing ads placed on the site by third parties that allegedly violated the federal Fair Housing Act (“FHA”). The case, the last one scheduled for the week, was clearly the most popular one of the day, with at least forty people in attendance in the gallery (none of whom left early notwithstanding an ominous, overhead announcement that interrupted the arguments, advising that a fire had been reported in another part of the twenty-seven story building, but that an evacuation was unnecessary). It apparently was a false alarm, but given I arguably risked my life to hear the arguments in their entirety, which took place on the 27th floor mind you, please show me some love and let me know where you think this case is headed (and/or if you think I’m a moron for sticking around to the end).

The three judge panel consisted of Judges Frank H. Easterbrook, Diane P. Wood and Terence T. Evans. You may recall that both Judges Easterbrook and Wood were on the panel that heard Doe v. GTE Corp. in 2003, the only other Section 230 case argued before the Seventh Circuit. Attorney Stephen D. Libowsky argued on behalf of CLC, and Attorney Patrick Carome argued on behalf of Craigslist. Each attorney was allotted fifteen minutes (with appellant CLC going first), and CLC’s counsel was offered an additional one minute for rebuttal. Of course the case was fully briefed before today’s arguments.

Judge Wood didn’t waste any time. Sure, Congress, when it enacted Section 230, did not want online services to be penalized for filtering objectionable content. But does it follow, she asked, that Congress wanted to make life more difficult for online services that do not employ blocking technologies? She asked CLC’s counsel why is it that a service that takes a neutral position regarding filtering is subject to liability?

CLC’s counsel’s response seemed to be that, like it or not, this is what the statute provides. In some cases where an online service employs filtering, it may be immune pursuant to 230(c)(2). But if such immunity does not apply, there is no protection for the online service under Section 230. In other words, CLC’s position seems to be that Section 230(c)(1) does not offer any protection for an online service that does not employ any filtering mechanisms. This of course flies in the face of over a dozen federal appellate decisions ruling to the contrary.

Judge Easterbrook – who wrote the court’s opinion in Doe v. GTE, which was heavy on dictum and suggested that Section 230(c)(1) indeed may only be definitional and not substantive – followed up, asking whether liability here boils down to whether Craigslist is a publisher (in other words, if liability requires treating Craigslist as a publisher, there can be no liability per Section 230). CLC’s counsel disagreed, asserting that under the FHA all Craigslist has to be is a “causer” of certain prohibited conduct. Judge Easterbrook acknowledged cases where newspapers were found liable (presumably under the FHA), such papers being the publishers of certain materials. But CLC’s counsel countered that those courts did not specify the basis for liability, and that in one case the court referred to a newspaper as having “carried” an ad. CLC’s counsel acknowledged, however, that such phrase does not appear in the FHA.

Judge Easterbrook noted that Section 230(c)(1) is not, contrary to what other courts have held, an immunity provision (technically it’s hard to argue with him given the paragraph makes no express reference to immunity). Instead (c)(1) is saying that an ISP cannot be treated as a publisher in some cases. This left me with the impression, when factoring in his line of questioning, that Judge Easterbrook may have had a partial change of heart since he wrote Doe v. GTE Corp., wherein he suggested in dictum that (c)(1) may just be definitional and a lead-in to the immunity provision contained in paragraph (2). Now he seems to be saying that (c)(1) can do some real work (not immunization, mind you). If I had to guess, if CLC, to prove a violation of the FHA, must show that Craigslist published a discriminatory ad, Judge Easterbrook would likely conclude that Section 230(c)(1) shields Craigslist from liability. But he probably wouldn’t use the word “immunize.”

Judge Evans then joined the discussion, asking how could Craigslist, with its 30 million posts per month and 30 employees, possibly be expected to filter each posting. He quickly dismissed CLC’s counsel’s comparison to the responsibility of newspapers, again emphasizing the massive number of postings made on Craigslist. He seemed to disregard CLC’s counsel’s assertions that Craigslist has essentially conceded that filtering is possible, given its purported efforts in this area to date, and that Craigslist could reduce the occurrence of inappropriate ads by employing dropdown menus (for example (mine), one could choose to exclude smokers, but would have no way to indicate a desire to exclude minorities, because that wouldn’t be among the dropdown choices).

Judge Easterbrook similarly did not buy the filtering argument. He offered an example of someone looking to rent out an apartment located near a Buddhist church. Should Craigslist prevent that person from using the word “Buddhist” in describing nearby landmarks, because the term could also be used in a discriminatory fashion? Of course such filtering is technically possible, but does the FHA require Craigslist to do so?

CLC’s counsel’s response was that (c)(1) is not absolute, and that it must be read in conjunction with (c)(2). By that I think CLC is saying that Craigslist – as a carrier or “causer” – is beyond the scope of (c)(1) protection (if any such protection exists), and that (c)(2) immunity is not available here because Craigslist did not filter, or attempt to filter, the allegedly discriminatory ads. CLC’s counsel also referred to Doe v. GTE, seemingly hoping Judge Easterbrook would stand by his suggestions therein that (c)(1) does not in and of itself offer any protection, and that the alternative reading would “gut” (c)(2). From my vantage point I did not get the impression that any of the panelists accepted these arguments.

Next up was Craigslist’s counsel. He directed the panel’s attention to Congressional committee reports prepared in connection with the 2002 Dot Kids statute which expressed approval for the federal courts’ interpretation of Section 230 to date, citing the Zeran decision in particular.

Judge Easterbrook again asked whether there was any way that Craigslist could be liable if it could not (per Section 230) be treated as a publisher. Craigslist’s counsel responded, of course, in the negative. Pressing the issue, Judge Easterbrook returned to the newspaper cases, asking whether the website could somehow be held liable as a carrier. Judge Easterbrook offered the hypothetical of a phone bank being employed to put out discriminatory messages. Would the phone company be liable in such a case for FHA violations? To my surprise, Craigslist’s counsel responded “maybe.” Putting aside for the moment whether it’s appropriate to compare carrier cases to ISP (or, more properly, Interactive Computer Service) cases, I have a hard time conjuring up a scenario where AT&T would be liable for a third party’s use of its phone lines to make calls spewing discriminatory statements.

My overall take? Judge Evans didn’t say much, but what he did volunteer was favorable to Craigslist. Based upon her articulated understanding of the statute, Judge Wood also seems inclined to side with Craigslist. Last, but certainly not least, I’m thinking that Judge Easterbrook was not persuaded by CLC’s arguments. However, and to his credit, he did demonstrate a willingness to consider an alternative basis for liability that would not implicate Section 230 protections. But I don’t think CLC satisfied its burden in this regard.

I expect a unanimous ruling affirming Judge St. Eve’s decision that will relieve concerns website operators may have about some of the four year old dictum in Doe v. GTE. Your thoughts?

UPDATE: Click here to listen to Friday’s oral arguments.