Sunday, September 09, 2007

The Communications Decency Act is Dead; Long Live the Communications Decency Act! :: Zango v. Kaspersky Labs :: Good Samaritans

The Communications Decency Act (CDA) was Congress’ first attempt to censor the Internet. This new law plummeted to earth in a flame of glory, struck down as unconstitutional by a unanimous Supreme Court.

And by struck down, we mean, of course, the legislation is alive and well, having tremendous impact over the evolution of the Internet, and who gets sued for what.

The CDA was tremendously unpopular – by those few at the time who had a clue about the Internet and technology. Of course, back in 1995 the Internet was still essentially a military secret that most Americans (including members of Congress) knew little about. Sen. Exon, the sponsor of the CDA, stood on the Senate floor, holding a folder filled with pornography from the Internet for any Member of Congress to peruse. Of course, he reportedly had no idea where the material came from, whether it came from a US server or one from the land of Foo. He also had no idea how to access or download the material; news reports indicated that he had never himself been online.

Members of Congress were, at that early era, confronted with a choice: they could defend the liberty and freedom of cyberspace (for all 12 of their constituents who happened to be online at that time) or they could take a stand against smut! The choice was simple: Members of Congress had to be seen as standing against the barbarian pornographers and voting for the CDA.

There were, however, a few members of congress who had a clue (and by clue, I mean, they represented some part of the country like Berkley or Silicon Valley – and their constituents suggested to them that the CDA was dumb). A compromised was therefore worked out between the CDA and its opponents; the CDA would pass (as a part of the Telecommunications Act of 1996) but it would be amended with things like (1) the Good Samaritan provision which protected internet service providers from liability for third party content, (2) it would be the policy of the USA to keep the Internet “unfettered from state and federal legislation” (whatever “unfettered” might mean); and (3) any good soldier fighting the battle against the barbarian pornographers would likewise be immune from liability.

The DOA CDA got reincarnated as the Good Samaritan provisions. Interactive services have been protected from liability from third party remarks over and over again. The immunity has been interpreted broadly, even though ambitious litigants have tried attempt after attempt at getting big bucks out of service providers.

The Good Samaritan provisions have been vital for the Internet we know today. It has allowed ISPs to advance business plans without exposed liability. It has permitted Web2.0. It has permitted blogs, and wikis, and third-party reviews, and comments. It has permitted interactive services filled with third party content, for which the provider of the service has not be held liable.

Which brings us to today’s lucky contestant. According to the videotape (Zango v Kaspersky Lab, Inc., Case No. C07-0807-JCC (WDWA Aug 28, 2007)), plaintiff Zango is a company that provides free stuff online. Defendant Kaspersky Lab sells malware detection and protection software, that identified Zango’s free stuff as “potentially harmful or malicious” and blocks its use. Zango took offense at being labeled “potentially harmful” and sued.

Defendant Kaspersky said, “not so fast, the unconstitutional ill-fated CDA protects me from liability.” 47 USC § 230(c)(2)(B) says that an interactive computer service that provides a means of avoiding objectionable stuff is not liable on account of that good deed. Try as it may, plaintiff did not persuade the court that 230(c)(2) did not apply to Kaspersky. The court noted that this level of immunity has been interpreted very broadly, and concluded “There is no question that [defendant] Kaspersky USA considers [plaintiff's] software to be objectionable.”

Congressed made clear that it likes service providers that seek to protect us from the barbarians at the gate – whoever or whatever those barbarians might be. The CDA might be dead, but the immunity of Sec. 230 lives on. Defendant motion for summary judgment is granted and the case against it was dismissed.

Let’s spin the Wheel of Morality and learn the lesson of today’s post! “Wheel of Morality, turn, turn, turn - Tell us what lesson we should learn.” [Whirl, Click, Click, Clock]. “Senator Exon was the Father of Web 2.0!”

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