CDA Section 230

Aiding and Abetting Prostitution? Wa?! I’m an Internet Executive – I Sure Hope My Mom Doesn’t Read That!

May 21, 2009

“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…

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File Under "Hell Hath No Fury" or, "If You’re Protected By CDA 230, Don’t Waive Your Protection"

May 8, 2009

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…

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Boston Bar Association CLE: Hot Issues in Internet Law, CDA Section 230

May 2, 2009

We had a great CLE at the BBA on Wednesday evening. The lucky folks who attended received three hours of (almost) nonstop legal info, and we barely scratched the surface of the topics. I spoke on CDA Section 230, which has seen a great deal of activity lately, and there are no signs it’s slowing down. Below, via scribd.com, are the slides and paper that I prepared for the program. CDA Section 230 Article, BBA April 2009

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Judge Gants Holds StubHub Not Protected by CDA Section 230 (relying on Roommates.com Decision)

April 24, 2009

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…

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