“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.

Link to the case: Barnes v. Yahoo

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