TechLaw

Ninth Circuit: Obscenity in E-Mail Messages Judged by National Community Standards

The U.S. Court of Appeals for the Ninth Circuit decided United States v. Kilbride a couple days ago, producing an opinion that interpreted criminal provisions in the CAN-SPAM Act and also discussed at length whether in a prosecution for transmission of allegedly obscene e-mail messages the contemporary community standard should be a local or national one.

Community Standards and E-Mail Communications

In a nutshell, the defendants used spam to promote adult websites.

The court ruled that the appropriate standard for e-mailed obscenity is a national community standard, due in large part to the fact that e-mail senders lack the ability to control which communities will receive their messages. The court reached this result by threading through the five opinions written in the U.S. Supreme Court's decision in Ashcroft v. ACLU, 535 U.S. 564 (2002), a case involving the constitutionality of a federal statute prohibiting the commercial online transmission of indecent speech. The problem, of course, is that subjecting e-mail speech to the community standards of the least tolerant community in the country may have an unconstitutional chilling effect on protected speech.

The Ninth Circuit wrote that, in light of Ashcroft, the application of a local community standard to e-mail speech was unconstitutional. However, the Ninth Circuit added, the application of a national community standard may also present constitutional problems. What? In a footnote, the court remarked that the application of local community standards "raises grave constitutional doubts" whereas the application of national community standards "does not raise grave constitutional doubts." Just to make sure that the reader understood that the court was not putting a stamp of approval on a national community standard, the court added that a First Amendment challenge to a national community standard will not necessarily be found meritless. Figure that one out, First Amendment lawyers.

(Personally, and this is probably an embarrassing confession of ignorance, but I have trouble understanding how a juror can determine what a "national community standard" looks like. Presumably, different communities have different sensibilities about artistic expression and obscene speech. How does a person deduce a national standard from a collection of varying local standards? Take an average? That can't be right. It's like asking, "What color is a rainbow?" A rainbow can't be reduced to a single color, can it. Same thing with community standards.)

Along the way, the court rejected the government's argument that e-mail speech is not entitled to the same First Amendment protection as the Internet communications at issue in Reno v. ACLU, 521 U.S. 844 (1997). "[F]or purposes of the First Amendment concerns raised by Defendants, Defendants' email communications are analogous to other Internet communications," the Ninth Circuit wrote.

Meaning of `Materially Falsifies' in CAN-SPAM Act

To carry out their spam operations, the defendants created several nonsense domain names, fake originating e-mail addresses, and fictitious names for e-mail senders. They also supplied false information when they registered their domain names. They argued on appeal that the definition of "materially falsified" in the criminal liability portion of the CAN-SPAM Act, 18 U.S.C. 1037(a)(4), was unconstitutionally vague -- raising both facial and as-applied challenges.

The court rebuffed these challenges. However, as it did so, the court remarked that domain name registrants who use private registration services that conceal the registrant's true identity have materially falsified their registration information. The court wrote:

[P]rivate registration is a service that allows registration of a domain name in a manner that conceals the actual registrant’s identity from the public absent a subpoena. We fail to perceive any vagueness on this point. Based on the plain meaning of the relevant terms discussed above, private registration for the purpose of concealing the actual registrant’s identity would constitute “material falsification.” Defendants assert that many innocent people who privately register without the requisite intent may be subject to investigation for violation of § 1037 until their intent can be determined, allowing for abuse by enforcement authorities. This may be so, but it does not make the statute unconstitutionally vague.

It is important to note that the CAN-SPAM Act requires proof "material falsification" plus an intent to send unlawful spam messages. Nevertheless, this court's belief that use of privacy-enhancing domain registration services -- a very common practice -- is a "material falsification" that helps create criminal liability is something e-mail senders should be aware of.

Craigslist Eludes Sheriff Dart, Thanks to CDA Section 230 Immunity

A federal district court in Chicago yesterday summarily dismissed Cook County Sheriff Thomas Dart's lawsuit alleging that online classified ad service Craigslist facilitated prostitution and created a public nuisance through the operation of the "adult" (formerly "erotic") services section of its website.

The court held that the sheriff's claim was barred by Section 230 of the Communications Decency Act. The court said that the sheriff's claim essentially sought to hold Craigslist liable as a publisher or speaker of third-party online content -- the kind of claim for which CDA Section 230 gives broad immunity to online publishers.

The case is Dart v. Craigslist Inc., No. 09-1385 (N.D. Ill., Oct. 20, 2009).

More later certainly.

Sixth Circuit Says Man Who Paid to Download Child Porn Probably Did So

From the Sixth Circuit yesterday, United States v. Frechette, No. 08-2191 (6th Cir., Oct. 8, 2009): government evidence that a suspect paid a one-month subscription fee to access a child porn website created probable cause to believe that he did in fact access the website and that evidence of crime could be found on the suspect's computer.

This ruling drew a dissent arguing that the majority's probable cause standard was too lax.

Jurisdiction Setback Apparently Won't Derail Privacy Action Against NebuAd

Plaintiffs in a privacy rights lawsuit against behavioral targeting technology provider NebuAd Inc. and six Internet service providers who shared their users' data with NebuAd have told the trial court they will press on even in the wake of the court's ruling that none of the ISP defendants are subject to suit in California. The court's Oct. 6 ruling left California-based NebuAd as the only defendant in the case, a complication because NebuAd liquidated its assets and went out of business in May 2009.

According to the court's opinion allowing NebuAd's current counsel to withdraw, also issued on Oct. 6, the plaintiffs believe that "NebuAd is not really going anywhere," and that NebuAd "is simply restarting with a new name," based out of the United Kingdom.

NebuAd's attorneys say they are owed $500,000 in legal fees by NebuAd and its insurers. The court permitted the attorneys to withdraw, but declined their additional request to stay the proceedings against NebuAd until new counsel could be retained.

The plaintiffs are alleging violations of the Electronic Communications Privacy Act, the California Computer Crime Law, the federal Computer Fraud and Abuse Act, and the California Invasion of Privacy Act.

The ISPs who were dismissed from the case are Bresnan Communications, CenturyTel Communications Inc., Embarq Inc., Knology Inc., WideOpen West Finance LLC, and Cable One. None of the ISPs is based in California. The trial court ruled that the ISPs' dealings with NebuAd was not a sufficient and constitutionally reasonable basis for a California court to assert jurisdiction over them.

The case is Valentine v. NebuAd Inc., No. 08-5113 (N.D. Cal.).

Ninth Circuit Declines to Read Common Law Loyalty Obligations Into CFAA

No language in the CFAA supports LVRC's argument that authorization to use a computer ceases when an employee resolves to use the computer contrary to the employer's interest.

And with that remark the Ninth Circuit today parted company with International Airport Centers LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006), a Seventh Circuit decision holding that an employee's computer use becomes unauthorized under the Computer Fraud and Abuse Act, 18 U.S.C. 1030, when the employee uses the computer in a manner contrary to the employee's common law duty of loyalty to the employer.

The case involved an ex-employee who e-mailed allegedly confidential information from his work computer to his personal computer shortly before he left the company. A typical scenario. In today's opinion, LVRC Holdings LLC v. Brekka, No. 07-17116 (9th Cir., Sept. 15, 2009), the court firmly rejected Citrin, holding instead that computer access becomes unauthorized when an employee contravenes employer-placed limits on use of a computer. Computer use does not become unauthorized, the court said, at the point when an employee's mental state switches from "loyal employee" to "disloyal competitor."

There is work for lawyers to do in the wake of this opinion. The court specifically noted that the employer did not have an employment agreement with the employee nor did the employer have in place guidelines that prohibited employees from e-mailing company information to their personal computers. So the employer here missed two opportunities to define the scope of authorized computer use by its employees, either of which might have turned the case its way.

Web site, Website, web site, Internet, internet

En route to setting aside Lori Drew's conviction for a misdemeanor violation of the Computer Fraud and Abuse Act, Judge George Wu paused briefly to ponder a pair of style problems. Should the terms "internet" and "website" be capitalized? Should "website" should be written as one word ("website") or two ("web site")?

Judge Wu decided in favor of "Internet" by resorting to case precedent, noting that the term appears capitalized "most often" in U.S. Supreme Court opinions. The judge never explained his thinking on the Web site/website/web site trilemma, though he elected to use "website" throughout his opinion.

Judge Wu, I think, was only half-right. "Internet" is an acceptable choice, but "internet" is the right choice. "Internet" is a brown suit, "internet" is charcoal grey. Who wears brown suits anymore?

Words Matter, a Little

Lawyers rarely sweat the style stuff. Here in the publishing industry, however, style is a Big Deal. Consistency in prose style creates the appearance of a professional and well-made information product, and reduces the linguistic white noise that can distract a reader from the writer's message. And every publisher is blessed to count among its employees a person or two whose fervor for announcing and enforcing the One True and Correct Way makes the Spanish Inquisition seem like a pot party in comparison.

Style is fluid, not locked in time, subject to fashion and excess. Many hyphenated words begin life as coinage, the product of serendipitous, creative conjunction, then pass into common usage, shedding their hyphens along the way. On-line to online, cyber-security to cybersecurity, and soon e-mail to email.

With capitalization, familiarity breeds minusculization. Or so it seems. The clear modern trend is toward less capitalization, as Bryan Garner noted in his The Redbook: A Manual on Legal Style (West Group 2002). "Downstyle is easier to read: only words that require emphasis, according to standards set by rule, get emphasized. In legal writing, there is an unfortunate tendency toward contagious capitalization. It is a reversible condition." Well said. Here at BNA, we've been taking the high and mighty down a peg for years. We write attorney general, the president, and the court, meaning no disrespect at all, but rather in tacit fealty to higher stylistic authorities.

Lowercasing a word can be useful for striking a modern pose. To write "I looked up her number in my Personal Digital Assistant" is to reveal a pitiable unfamiliarity with tech gadgetry. "PDA" is better, "pda" better yet. I don't think e.e. cummings was the first writer to strike a disaffected, self-conscious, modern pose by dressing his verse in lowercase garb, but he certainly made the technique safe for mass adoption. Way back in 1996, editors at the str3nuously hiP Wired magazine published Wired Style: Principles of English Usage in the Digital Age, pea-green-paged content for the printosphere declaring that "Internet," "Web," and "Web site" were the correct way to "speak the culture" and "be elite." But times changed, the Web became commonplace, and Wired was caught with its stylistic pants down. So in 2004, Wired belatedly re-joined by cultured digital elite by changing to lowercase spellings of "internet" and "website."

Law Looks Backward, Language Forward

When it comes to word choice and style, the legal profession is faced with a conundrum. The law looks backward, language looks forward. The common law slowly picks its way into the future, navigating with a rearview mirror, while language leaps forward, poked and prodded by changed circumstances and our appetite for novelty.

In the Drew case, Judge Wu exhibited the legal profession's traditional approach. He looked backward. How do other courts spell these words? He cited the U.S. Supreme Court's opinion in Pacific Bell Telephone Co. v. Linkline Communications Inc., No. 07-512 (U.S., Feb. 25, 2009), where Chief Justice John Roberts consistently used "Internet" to describe the network of networks. Twelve years earlier, Justice John Paul Stevens, in ACLU v. Reno, 521 U.S. 844 (1997), the great granddaddy of cyberlaw cases, capitalized "Internet" and "Web site," both prevailing usages of the time.

The statute at issue in ACLU v. Reno, the Communications Decency Act (1996), employed the same style convention:

The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.

In 1998, Congress employed the more modern formulation of "website" in the Children's Online Privacy Protection Act:

The term "operator" ... means any person who operates a website located on the Internet or an online service and who collects or maintains personal information from or about the users of or visitors to such website or online service, or on whose behalf such information is collected or maintained, where such website or online service is operated for commercial purposes, including any person offering products or services for sale through that website or online service, involving commerce ....

In 2003, the CAN-SPAM Act retained the same style conventions ("Internet" and "website"):

Many senders of bulk unsolicited commercial electronic mail use computer programs to gather large numbers of electronic mail addresses on an automated basis from Internet websites or online services where users must post their addresses in order to make full use of the website or service.

So, as far as enacted legislation, Congress has spoken. "Internet" and "website" are the law of the land.

A visitor to the Library of Congress's Thomas website will discover that the term "website" (found in S. 800 and 88 other bills) is vastly preferred over "Web site" (H.R. 149 and just two other bills) among introduced legislation. In the case of "Internet" versus "internet," I could find only a single instance of lowercase "internet" among the 164 bills returned by my query for the term.

internet and website, Obviously

Congressional guidance notwithstanding, my personal preference is for "internet" and "website." I make no claim to digital elitism nor do I believe my grammatical choice has any cultural significance. Rather, this is where the language seems to be going, this is what the style schoolmarms demand, and it looks good too. (I also like it that "internet" suggests to the reader that I know what the internet is and that, in 2009, I am no longer golly-gee-whiz impressed by it and that I, heaven forbid, do not think it is a system of tubes.) Unfortunately, when I looked just now for external validation from the cool kids on campus, I found a dissatisfying disparity of opinion. A sampling some recent books by cyberlaw gurus revealed a mixed bag, inconclusive both for the fact that the style preferences among these authors are not consistent and for the fact that the usages I found in these books could well have been the decision of inhouse editors rather than the authors. (But what accounts for "website" in the Goldsmith/Wu title and the dowdy "Web site" three years later in Prof. Patry's book? Each was published by Oxford.)

• Goldsmith and Wu, Who Controls the Internet? (Oxford University Press 2006). Internet and website. "The Internet's design was unprecedented because it was open, minimalist,and neutral."
• Patry, Moral Panics and the Copyright Wars (Oxford University Press 2009). Internet and Web site. "Through the [Reuters] API, bloggers and other noncommercial Web sites can copy Reuters news content, create applications around it, or incorporate it into blogs and Web sites."
• Lessig, Code Verson 2.0 (Basic Books 2006). Internet and website. "Why should a website know anything about me if I go to that site to view certain content? You don’t have to be a criminal to appreciate the value in anonymous browsing."
• Zittrain, The Future of the Internet and How to Stop It (Yale University Press 2008). Internet and Web site. "Even with some ongoing human oversight, the blacklists of objectionable Web sites maintained by commercial filtering programs are consistently overbroad, erroneously placing Web sites into categories to which they do not belong."
• Mueller, Ruling the Root (MIT Press 2002). Internet and Web site. "The hierarchy to the right of the domain name could be as shallow or as deep as the owner of the Web site wanted."

Finally, and changing gears a little bit, the Financial Times website is running a story today noting that television broadcasters are opting for "video" rather than "television" to describe their wares. This change reflects brand positioning, most likely, rather than language usage. Note however that FT is validating my style choice using both "website" and "internet" in the piece. Which makes me feel better. That's another thing about publishers and journalists: There's a herd mentality within our industy, but it's a cool herd. We think so anyhow.

Update: I neglected to mention that Profs. Bellia, Berman and Post were early adopters of the lowercase "internet," using it in their Cyberlaw: Problems of Policy and Jurisprudence in the Information Age (West Group 2003) casebook. "We must be acutely aware of the metaphors that lawyers and judges employ when thinking about internet legal issues." Also "web site," however.

Ten Interesting Things I Read This Week

This post is a collection of links to materials I've been reading this week, really just trying to catch up on old news and re-engage myself in subjects that I spent most of my summer trying to forget while on vacation. I made supplications to the Muse all morning in the hope she would favor me with a catchy title, something that might yield one of those tragically sardonic acronyms like CAN-SPAM or SPY Act, but no, nothing, and now it's time to get back to work and all I have is Ten Interesting Things I Read This Week (TITIRTW):

1. Cleveland Plain Dealer: Idea for protecting newspapers draws national spotlight, bloggers' ire

2. Media & Communications Policy: More on Newspapers and Aggregators

At this point management at most of the leading newspapers have let go of the notion that "parasitic aggregators" are a significant source of their business problems. Yet here is a respected attorney (and counsel to the Cleveland Plain Dealer) making an argument that parasitic aggregators who are free-riding on newspaper content should be stopped. Stopped by reviving the common law doctrine of "hot news" misappropriation. He believes that the Copyright Act should be amended so that it no longer preempts state-law misappropriation claims. The attorney writes: "If the legal principles that we advocate in this analysis were the law, the newspaper publisher would have a legal right to enjoin temporarily or otherwise impede the business of an aggregator that commercially exploits the publisher's news reports in direct competition with the publisher." I don't want to "Go Pundit" here, but this is a solution to a problem that just does not exist.

3. Citizen Media Law Blog: Southeastern Conference Sacks Social Media, Then Recovers

A nice account of the Southeastern Conference's attempt to protect the interests of its television broadcast partners by prohibiting fans from blogging, twittering et cetera during football games that reminded me we are still very much at the beginning of the user-generated media era. The article summarizes the state of the law on the "hot news" doctrine, making a nice counterpoint to the "save the newspapers" discussions above. 

4. U.S. Department of Homeland Security: Secretary Napolitano Announces New Directives on Border Searches of Electronic Media

Modest privacy-enhancing protections announced here, though DHS is not giving back an ounce of their authority to search anyone, anything, any time, at the border. Which still includes laptops: "In the course of a border search, with or without individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border."

The American Civil Liberties Union filed a lawsuit this week seeking records relating to searches of electronic devices at the border.

5. The Volokh Conspiracy: How the Ninth Circuit Tried To End Plain View for Computer Searches Without Ending Plain View for Computer Searches

Prof. Orin Kerr ruefully labels the en banc Ninth Circuit's decision in United States v. Comprehensive Drug Testing Inc. as Miranda for computer searches. He writes: "I think the best way to understand today's remarkable Ninth Circuit Fourth Amendment decision in United States v. Comprehensive Drug Testing is that the Ninth Circuit did its best to end the plain view exception for computer searches without formally ending plain view for computer searches. Chief Judge Kozinski's opinion created an elaborate statute-like new regime to make sure the government acts like there is no plain view exception. The decision is a workaround that effectively ends plain view for computer searches by making sure the government will never collect electronic evidence in plain view in the first place."

Sounds a little bitter to me. Judge Kozinski's opinion is a sensational read. And if it really is like Miranda, read it, because it's going to be around for a long time.

6 & 7. Gregg Easterbrook (ESPN): Tuesday Morning Quarterback's AFC preview and TMQ travels back in time to August 2009

A personal favorite, a guilty pleasure, one of the best writers on the Web, reminds me of Tom Wolfe way back when. More than football in here too: smart ruminations on Twitter, the British Humanist Association, and deadly objects from space.

8. Consumer Law & Policy Blog: Official Word from US Courts -- Feel Free to Use RECAP With Our Blessing

The implication here is that the AO's office would naturally have disapproved of RECAP, a Firefox addon that uploads PACER documents to a free repository. But surprise surprise it appears they don't mind at all. Am I the only one who believes the judiciary is the most -- not the least -- open branch of the federal government?

9. Spam Notes: Electronic Communications, Privacy, Data Protection, and More: Gordon v. Virtumundo: 9th Cir Smacks Down Anti-Spammers in Trifecta Defense Win

Ah, August 6, 10 a.m. PST. I was fly-fishing a gentlemanly stretch of the Gallatin River in Yellowstone National Park. Wretched souls like Venkat were slogging through Gordon v. Virtumundo's discussion of CAN-SPAM preemption. He writes: "As far as opinions go, this is as good as it gets." I couldn't agree more. About the fishing, of course.

10. Techdirt: Interview With William Patry: Understanding How The Copyright Debate Got Twisted

Prof. William Patry is coming out with a new book, Moral Panics and the Copyright Wars. Here, a very interesting discussion with Techdirt's Mike Masnick draws out Patry's views on fair use, the file-sharing wars, and copyright politics.

Marketers Make Good on Threat to Challenge Maine Privacy Law

The Progress and Freedom Foundation is reporting that a group of marketers and publishers filed a lawsuit yesterday challenging the constitutionality of Maine's Act to Prevent Predatory Marketing Practices Against Minors, a law that prohibits companies from collecting "health-related information or personal information for marketing purposes from a minor without first obtaining verifiable parental consent of that minor's parent or legal guardian." That's a tall order for marketers, requiring fundamental changes in their operations.

The listed plaintiffs are the Maine Independent Colleges Association, Maine Press Association, NetChoice, and Reed Elsevier Inc.

The law becomes effective Sept. 12.

The lawsuit was reportedly filed in the U.S. District Court for the District of Maine, though it is not yet available on the court's PACER/ECF site. A copy of the plaintiffs' motion for a preliminary injunction distributed by PFF is available here.

Plaintiff's allege that the Maine law violates the First Amendment (they allege it should be tested under the rigorous standards applicable to non-commercial speech), the dormant Commerce Clause, and state preemption provisions in the Children's Online Privacy Protection Act, a federal measure applicable to children under age 13.

Justice Sotomayor's Potential Cyberlaw Influence? Not Much

It was pleasant to note the other day that Judge Sonia Sotomayor, President Obama's choice for Associate Supreme Court Justice, has written a few opinions relating to Internet law during her time as judge in the lower federal courts. A first, apparently, and a sign of the centrality of the Internet in our business and personal affairs. From now on, the high court nominee who doesn't have a few cyberlaw decisions on his or her resume will be the remarkable case.

But does a Justice Sotomayor mean anything for the future direction of the laws that regulate online activity? No, not really. Not in the near future.

Consider this:

The Supreme Court has never reviewed a case involving the Computer Fraud and Abuse Act.

The Supreme Court has never reviewed a case involving the Electronic Communications Privacy Act.

The Supreme Court has never reviewed a case involving Section 230 of the Communications Decency Act (which gives interactive computer services immunity from most claims arising from the publication of third-party content), though it did consider, and strike down, the prohibitions against indecent online speech contained in another part of the CDA in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

The Supreme Court has never reviewed a case involving the CAN-SPAM Act or the Digital Millennium Copyright Act.

The Supreme Court has never reviewed a case involving electronic contracting, jurisdiction arising from online activities, cybersquatting or any other domain name-related dispute.

Aside from Doe v. Chao, a case involving standing to sue the federal government under the Privacy Act, the Supreme Court has never taken a case involving online privacy or security (GLB, COPPA, FTC Act, you name it). If you want to count Bartnicki v. Vopper, go ahead, though I don't think that obscure decision in any way undermines the point I am trying to make here.

So that covers that vast majority of what I consider to fall under the general heading of cyberlaw. None of it is even on the Supreme Court's radar. And I don't see that situation changing anytime soon. The Web is a welter of contracts (a state law issue), and all of the afore-mentioned statutes need many more years of intermediate appellate scrutiny before they'll make good candidates for Supreme Court review. Sure, there are plenty of prosecutorial and judicial missteps to feed our blogs. But, as the Supreme Court often reminds us (see Rule 10), the Supreme Court is not in the business of correcting erroneous applications of settled law.

What's left? Copyright, patent, and First Amendment law. The last (and only) time the high court decided a digital copyright case was Metro-Goldwyn-Mayer Studios Inc. v. Grokster, 545 U.S. 913 (2005), a case in which Justice Souter (whom Judge Sotomayor will replace) wrote for a unanimous court that Grokster, a distributor of peer-to-peer file-sharing software, was a secondary infringer of the movie studios' copyrights. Not only did Grokster lose the case, but it inspired the high court to create a new theory of secondary liability -- "inducing" copyright infringement -- along the way. Given the apparently entrenched views already on the court, Judge Sotomayor's ascent to the Supreme Court offers little hope of benefiting copyright fair use advocates anytime soon, if at all.

First Amendment issues have traditionally been a leading source of Supreme Court activity, and it is not too far-fetched to imagine high court review of a case involving a federal government (FCC?) attempt to impose broadcast-style regulation on Internet transmissions. Here alone, I think, we have an area where Judge Sotomayor could exert some influence on cyberlaw issues. Without question, the Internet would be a far different -- and worse -- place if Reno v. American Civil Liberties Union had come out the other way. On First Amendment issues, Judge Sotomayor appears to have a rather unremarkable though liberal-leaning view of the First Amendment. About the same as the departing Justice Souter. No gain or loss for free speech proponents.

That leaves patents. In re Bilski, No. 08-964 (certiorari petition filed Jan. 28, 2009), is an important case in which the Federal Circuit curtailed the patentability of software-implemented business methods. According to SCOTUSBlog, there is a good chance the Supreme Court will grant review of the Bilski decision. Bilski was up for discussion yesterday at the Supreme Court's private cert-consideration conference, so we could know as early as Monday if Judge Sotomayor will have that one facing her in the fall. I have no idea what Judge Sotomayor's views are on the patentability of software-implemented business method patents, and I don't think anyone else does either. The Inventive Step blog unearthed a couple district court decisions. Not much there to go on.

Feel free to e-mail me (as usual) all the cases I've missed!

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Five Post-Roommates.com Decisions Confine Immunity Exception to Narrow Circumstances

When the en banc Ninth Circuit decided Fair Housing Council of San Fernando Valley v. Roommates.com, 521 F.3d (1157 (9th Cir. 2008), a case in which the court held that a Web site could be liable as an "information content provider" of unlawfully discriminatory content that users were required to submit to the site, the prevailing view among publishers' attorneys was that they could live with it.

Speaking at a conference several months after the Roommates.com decision, Barbara W. Wall, vice president and associate general counsel, Gannett Co. Inc., said that she was “heartened” by the Roommates.com decision, rather than seeing it as a “threat” to online publisher protections created by Section 230 of the Communications Decency Act. By requiring answers to its profile-building questions, the Roommates.com Web site "turned your computer into [a Fair Housing Act] violation machine,” Wall said.

Section 230 of the Communications Decency Act gives "interactive computer services" immunity from most claims arising from the publication of content submitted by third-party "information content providers." The problem identified by Roommates.com was that profile-building forms on the Web site required users to express unlawful preferences for potential roommates. This aspect of the Web site's operation made Roommates.com an "information content provider" with respect to the unlawful content supplied by its users, the Ninth Circuit ruled. Thus, the Web site was not entitled to CDA Section 230 immunity from Fair Housing Act liability arising from this content.

Wall's reading of the Roommates.com decision has so far held up, at least in the lower court cases that have considered that aspect of the Roommates.com decision. The five cases decided since Roommates.com all pretty much bear out Wall's view that publishers lose their CDA Section 230 immunity only when they require the submission of unlawful content. In fact, one court took an even narrower view, stating that in Roommates.com it was the Web site's profile-building questions themselves that were unlawful.

In Doe v. MySpace Inc., No. 08-140 (E.D. Texas May 22, 2009), the court held that MySpace was not an "information content provider" of information contained in an online profile supplied by the plaintiff, a crime victim whose sexual assault was allegedly orchestrated through use of the MySpace Web site:

[T]he Plaintiff argues that the Defendant is an information content provider because it developed the information on the profiles which caused Julie Doe’s injuries. However, Roommates.com is not applicable to the instant case. The Ninth Circuit repeatedly stated throughout its en banc opinion that the Roommates.com website required its users to provide certain information as a condition of its use and was, therefore, and information content provider. Here, however, users of MySpace.com are not required to provide any additional information to their profiles identified and later sexually assaulted. ... [A]lthough MySpace.com prompts its users to supplement their profiles with additional information via a list of categories, such conduct is insufficient to hold the Defendant out as an information content provider.

Another decision, Goddard v. Google, Inc., involved allegedly unlawful content that was submitted by a Google Adwords advertiser. The court rejected a Roommates.com-based attack on CDA Section 230 immunity, stating that Roommates.com lost its immunity "only by forcing its users to provide the allegedly discriminatory information as a condition of access."

In GW Equity LLC v. Xcentric Ventures LLC, No. 07-976 (N.D. Texas Jan. 9, 2009), the court said that Roommates.com held that a Web site would not be entitled to CDA Section 230 immunity only in cases in which "a mere question leads to liability." Merely encouraging a Web user to select a category from a broad range of proposed categories did not deprive the Web site operator of immunity for user-supplied unlawful content.

In Atlantic Recording Corp. v. Project Playlist Inc., No. 08-3922 (S.D.N.Y. March 25, 2009), the court offered an even narrower reading of the Roommates.com decision. This court believed that the questions themselves must be unlawful:

The Ninth Circuit's decision was based solely on the fact that the content on the website that was discriminatory was supplied by Roommates.com itself. It was Roommates.com that, in violation of federal and California state housing law, required potential subscribers to identify their sex, sexual orientation, and family status, and to indicate their preferred sex, sexual orientation, and family status in a roommate.

Lastly, in Barnes v. Yahoo! Inc., No. 05-36189 (9th Cir. May 7, 2009), the court described Roommates.com as holding that merely providing "neutral tools to carry out what may be unlawful or illicit" does not make a Web site an information content provider.

Looking at these cases, it's fair to say that while Roommates.com was a loss for one particular online publisher, it is causing very few problems for the rest of the Web.

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