Saturday, July 09, 2016

Bollaert :: "Designed to Solicit Illegal Content" Removes Sec. 230 Immunity #Nope

I like this case.  Every now and then a judge puts it just right.  47 USC s 230 immunity applies, except where a site is "designed to solicit illegal content."  The court states Defendant's "actions were not neutral, but rather materially contributed to the illegality of the content and the privacy invasions suffered by the victims."

Nice. Clean. Wrong.

Okay, before we unpack it, lets go to the videotape:
In 2012, 2013 and 2014, a number of individuals discovered that photographs of themselves, including nude photographs, as well as their names, hometowns, and social media addresses, had been posted without their permission on a Web site, Most of the pictures were taken by or for former significant others or friends. Some of the pictures the victims had taken on their own phones or placed on personal webpages for private viewing by themselves or select others. Some had been taken while the victim was drugged and in a compromised state or otherwise unaware of the photographing. Victims received harassing and vulgar messages from strangers. Many of the victims contacted the Web site administrator at to try to get their photographs and information removed without success. ...The UGotPosted Web site contained a link to another Web site,, where victims were told that for payment of a specified amount of money, their pictures and information would be taken down. Six of the victims paid money to an account on to have their pictures removed from the Web site.
The People brought charges of extortion and unlawful use of personally identifying information.

Defendant claimed immunity under 47 USC s 230.

If you are familiar with the Roommates decision, you know where this is going. In Roommates, defendant created a website which had a survey with required questions and answers.  These required inquiries were used to create a customer's profile.  Unfortunately, some of those questions appeared to have violated the Fair Housing Act.  The court held that yeah, if you requiring that people answer questions with answers that you supplied, you have become an Information Content Provider and are liable for the content you created.

In this instance, the court found that the Defendant was pretty much doing the same thing: Defendant
created so that it forced users to answer a series of questions with the damaging content in order to create an account and post photographs. That content—full names, locations, and Facebook links, as well as the nude photographs themselves—exposed the victims' personal identifying information and violated their privacy rights.
The court then slips: Defendant's
Web site was "designed to solicit"  content that was unlawful, demonstrating that [Defendant's] actions were not neutral, but rather materially contributed to the illegality of the content and the privacy invasions suffered by the victims. In that way, he developed in part the content, taking him outside the scope of CDA immunity. 
Yeah.  No.  Careful.

The court has conflated two questions - and in some ways the conflation does not matter - but in some ways it is important to acknowledge and bloggers need things to quibble about. The two questions:  (A) Is defendant an Information Content Producer and thus does not fall under 230 immunity and (B) Is the content in question legally actionable.

Say it the opposite way.  The fact that "the content was unlawful" did not make Defendant an Information Content Producer.  The whole purpose to 230 is to protect Interactive Computer Services from the bad content created by third parties. Consistently, if a defendant created a perfectly legal survey with required questions and pre-concocted answers - but legal - defendant would still potentially be an Information Content Producer under Roommates and not fall under 230 immunity (there would just be no liability because the content was not actionable). 

Sec. 230 immunity is lost, pursuant to Roommates, not, because the site was designed to solicit unlawful content.  Sec. 230 immunity is lost, pursuant to Roommates, because
By requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-populated answers, Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information. And section 230 provides immunity only if the interactive computer service does not `creat[e] or develop[]' the information `in whole or in part.'
Roommates p. 1166.  

Whether the content is illegal is a different question from whether defendant is immune.

People v. BOLLAERT, Cal: Court of Appeal, 4th Appellate Dist., 1st Div. 2016

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