Communications Decency Act

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Communications Decency Act
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Conduit / Intermediary Issue

• Duty of care issue
• Bottleneck issue

Injured
3d party
ISP Info Service
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Section 230

• (c) Protection for "good samaritan" blocking and
  screening of offensive material
  
• (1) Treatment of publisher or speaker No
  provider or user of an interactive computer
  service shall be treated as the publisher or
  speaker of any information provided by another
  information content provider.
• (2) Civil liability No provider or user of an
  interactive computer service shall be held liable
  on account of--
  
• (A) any action voluntarily taken in good faith
  to restrict access to or availability of material
  that the provider or user considers to be
  obscene, lewd, harassing, or otherwise
  objectionable, whether or not such material is
  constitutionally protected

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Policy basis?

• Libel claim against an ICS based on filtering and
  right to delete content
  
• Statutory preamble
• (1) to promote the continued development of the
  Internet
  
• (2) to preserve the vibrant free market for
  interactive computer services, unfettered by
  regulation
  
• (3) to encourage the development of technologies
  which maximize user control over what information
  is received
  
• (4) to remove disincentives for utilization of
  blocking and filtering technologies to restrict
  children's access to objectionable online
  material and
• (5) to ensure vigorous enforcement of Federal
  criminal laws re trafficking in obscenity,
  stalking, and harassment by means of computer

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Section 230

• (c) Protection for "good samaritan" blocking and
  screening of offensive material
  
• (1) Treatment of publisher or speaker No
  provider or user of an interactive computer
  service shall be treated as the publisher or
  speaker of any information provided by another
  information content provider.
• (2) Civil liability No provider or user of an
  interactive computer service shall be held liable
  on account of--
  
• (A) any action voluntarily taken in good faith
  to restrict access to or availability of material
  that the provider or user considers to be
  obscene, lewd, harassing, or otherwise
  objectionable, whether or not such material is
  constitutionally protected

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Who/ what ICS?

• The term "interactive computer service" means any
  information service, system, or access software
  provider that provides or enables computer access
  by multiple users to a computer server, including
  specifically a service or system that provides
  access to the Internet
• The term "information content provider" means any
  person or entity that is responsible, in whole or
  in part, for the creation or development of
  information provided through the Internet or any
  other interactive computer service.

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Gentry v. eBay

• Defendants trick eBay system to create high
  positive feedback ratings that mislead buyers of
  sport autographed things
  
• California law requires certificate and assurance
  of authenticity
  
• eBay not a dealer
• Preemption issue re eBay warranty, statute breach
  claim, negligence
  
• Is eBay an ICS?

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Gentry continued

• Is this claim covered?
• (c) (1) Treatment of publisher or speaker No
  provider or user of an interactive computer
  service shall be treated as the publisher or
  speaker of any information provided by another
  information content provider.

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Gentry continued

• Is eBay a content providers or an interactive
  service?
  
• Appellants' negligence claim is based on the
  assertion that the information is false or
  misleading because it has been manipulated by the
  individual defendants or other co- conspiring
  parties. Based on these allegations, enforcing
  appellants' negligence claim would place
  liability on eBay for simply compiling false
  and/or misleading content created by the
  individual defendants and other coconspirators.
  We do not see such activities transforming eBay
  into an information content provider with respect
  to the representations targeted by appellants as
  it did not create or develop the underlying
  misinformation.

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Carafano case

• Dating service online bad guy creates a false
  image of victim an actress.
  
• Sues for invasion privacy, defamation, and
  negligence
  
• This is assumed to be a type of operation that
  qualifies under 230. Why?
  
• Question is it the content provider?

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Doe v GTE

• Locker room videos
• GTE provides web hosting services where videos
  are sold
  
• GTE conduct not correspond to ordinary
  understanding of aiding and abetting
  
• Just as the telephone company is not liable as
  an aider and abettor for tapes or narcotics sold
  by phone, and the Postal Service is not liable
  for tapes sold (and delivered) by mail, so a web
  host cannot be classified as an aider and abettor
  of criminal activities conducted through access
  to the Internet. Congress is free to oblige web
  hosts to withhold services from criminals (to the
  extent legally required screening for content may
  be consistent with the first amendment), but
  neither 2511(a) nor 2520 can be understood as
  such a statute.
• Does Section 230 apply?

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Batzel case

• Email claiming Batzel is related to Nazi and has
  stolen art
  
• Selected for posting by defendant on a list
  serve.
  
• Is service a type of activity that is an ICS?
• Not limited to Internet access providers
• Focuses on user concept

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Batzel continued

• Was this information provided by another
  information content provider?
  
• An "information content provider" is "any
  person or entity that is responsible, in whole or
  in part, for the creation or development of
  information Obviously, Cremers did not create
  Smith's e-mail. Nor do Cremers's minor
  alterations of Smith's e- mail prior to its
  posting or his choice to publish the e-mail
  (while rejecting other e-mails) rise to the level
  of "development." As we have seen, a central
  purpose of the Act was to protect from liability
  service providers and users who take some
  affirmative steps to edit the material posted.
  Also, the exclusion of "publisher" liability
  necessarily precludes liability for exercising
  the usual prerogative of publishers to choose
  among proffered material and to edit the material
  published while retaining its basic form and
  message. The "development of information"
  therefore means something more substantial than
  merely editing portions of an e-mail and
  selecting material for publication.

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• Client runs a match-making service online. It
  advertises nationally on television. The service
  claims to match men and women who are their
  compatible, soul-mates. The system works by
  having a client fill out a ten-page questionnaire
  online and provide a photograph. The Clients
  system matches compatible people, giving each the
  contact information for the other. Focusing
  solely on the issues we have discussed and on the
  following material, what legal risk does Client
  have?

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• END