“We opened an investigation at 5:01 on Friday, as promised. . . . We are preparing for a prosecution. We are investigating. We are moving forward. . . . . The #1 defendant is Mr. Jim Buckmaster, who is the man in charge of Craigslist.. . . . Craigslist is a big promoter and facilitator of prostitution.”
South Carolina Attorney General, on Sunday, according to the Craigslist Blog.
Hmmm, this is the kind of thing that is protected by Section 230 of the Communications Decency Act, assuming that the South Carolina AG is referring to third party postings. Somehow I doubt that Mr. Buckmaster has become a South Carolina pimp.
Apparently, law enforcement authorities in SC have been particularly aggressive in their comments about Craigslist. Why did Craigslist file this suit? The most obvious reason, from a semi-legal perspective, is to get into federal court in that state, rather than be subject to the whims of a state court judge that may not “get” the CDA. After all, SC is south of Mason Dixon, and these guys in California may have seen My Cousin Vinnie one time too many. And, they be a little unclear on the geography of the American Southeast. Not to mention Easy Rider.
The other reason may just be to fight publicity with publicity, rather than just sit around and take it.
Whether a case like this is procedurally proper, I’m not sure, but I tend to doubt that you can preempt a threatened criminal prosecution that would be brought under state law with a civil action for declaratory relief in federal court.
Cicilia Barnes’ choice in men was worthy of a Darwin Award. After she broke up with her boyfriend, he created fake personal ads for her on Yahoo and impersonated her on online forums. As the Ninth Circuit described it in Barnes v. Yahoo:
Barnes did not authorize her now former boyfriend to post the profiles, which is hardly surprising considering their content. The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the addresses, real and electronic, and telephone number at Barnes’ place of employment. Before long, men whom Barnes did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex.
Barnes demanded that Yahoo take the information down, but Yahoo didn’t do so, despite a policy that it would remove fake profiles if the complaining party supported its request with a drivers license. However, attention from the press did get Yahoo to focus, at least for a short while. Again, from the court:
. . . a local news program was preparing to broadcast a report on the incident. A day before the initial air date of the broadcast, Yahoo broke its silence; its Director of Communications, a Ms. Osako, called Barnes and asked her to fax directly the previous statements she had mailed. Ms. Osako told Barnes that she would “personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it.”
Two months later the profiles were still on Yahoo’s site, and Ms. Barnes filed suit against Yahoo in Oregon state court. At that point, the profiles were at last removed.
To pin liability on Yahoo, Barnes need to get past 17 U.S.C. Section 230 and, like so many that came before her, she tried valiantly but unsuccessfully.
However, sometimes imaginative lawyering pays off, and Barnes argued breach of contract, based on the fact that Yahoo had engaged in discussions with her, promised to remove the material, and then failed to do so. The court:
Subsection 230(c)(1) creates a baseline rule: no liability for publishing or speaking the content of other information service providers. Insofar as Yahoo made a promise with the constructive intent that it be enforceable, it has implicitly agreed to an alteration in such baseline. Therefore, we conclude that, insofar as Barnes alleges a breach of contract claim under the theory of promissory estoppel, subsection 230(c)(1) of the Act does not preclude her cause of action.
The takeaway from this case? If you are an online service provider and someone asks you to remove objectionable material, you have two choices: you can refuse to do so and be pretty confident that Section 230 will provide you with immunity; or, if you say you will remove the material, do so, or risk facing the outcome that Yahoo experienced in this case.
On January 26, 2009, in what may have been Judge Ralph Gants’ last opinion before departing Suffolk Superior Court for the Supreme Judicial Court on January 29, 2009, Judge Gants ruled on a number of issues in the New England Patriots lawsuit against StubHub.com. The claims are based on the fact that StubHub provides an online marketplace for the scalping of Patriot’s tickets, something that really pisses off the Patriots’ owners, who attempt to exercise a high degree of control over their ticket sales. The Patriots’ various causes of action arise out of their claim that the tickets are a “revocable license” with printed terms, and civil claims related to the Massachusetts anti-scalping statute, G. L. c. 140, Section 185A.
The discussion on 47 USC Section 230 is only a small part of the decision (which addresses a number of defensive theories set forth by StubHub on summary judgment, rejecting most of them) is as follows:
CDA immunity “applies only if the interactive computer service provider is not also an ‘information content provider,’ which is defined as someone who is ‘responsible, in whole or in part,’ for the creation or development of the offending content.” Roommates, 521 F.3d at 1162;47 U.S.C. § 230(f)(3). The Ninth Circuit has interpreted the term “development” as “referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.” Roommates, 521 F.3d at 1167-1168. Here, as discussed earlier, there is evidence in the record that StubHub materially contributed to the illegal “ticket scalping” of its sellers. In effect, the same evidence of knowing participation in illegal “ticket scalping” that is sufficient, if proven, to establish improper means is also sufficient to place StubHub outside the immunity provided by the CDA.
The Ninth Circuit Roommates.com decision is, itself, debatable (and the dissent debates it quite credibly). In that case the 9th Circuit (en banc) held that because Roommates.com provided drop down menus that provided choices that violated the Fair Housing Act (children, sexual orientation), Roommates.com had lost immunity under Section 230. The drop down menus, the Ninth Circuit held, turned the web site into the “developer . . . at least in part” of the illegal information.
Although it’s not clear from Judge Gants’ decision, a look at the StubHub site shows that that StubHub fell directly into the Section 230 exception created by the Ninth Circuit. StubHub guides ticket sellers through a series of menu choices (sport/team/date), much in the manner that Rommates.com does. Assuming that the presence of the Patriots in this menu structure induces sellers to engage in illegal conduct by selling the tickets (Judge Gants used the Supreme Court’s copyright infringement decision in Grokster decision to argue inducement), StubHub fell directly under Roommates.com.
One must wonder whether StubHub could obtain immunity under 47 USC Section 230, going forward, by simply eliminating references to the Patriots and allowing sellers to fill in the Patriot’s name in free text. This would be analogous to the “open text box” (as opposed to the drop down menus) that the Ninth Circuit held was protected by Section 230 immunity in Roommates.com. The Patriots would have a difficult time getting past Section 230 if StubHub was purely passive. However, this would be a significant deviation from the system of identifying tickets to sell or buy created by StubHub, and I’m sure would result in fewer sales of Patriot’s tickets.