1995 :: Feb. 1 :: Sen. Exon Introduces the Communications Decency Act

On February 1, 1995, Senator James Exon (D-Neb.) attempted to do what had never been done before--regulate speech on the Internet. Introducing the Communications Decency Amendment (CDA), Senator Exon declared a danger to society: Barbarian pornographers are at the gate and they are using the Internet to gain access to the youth of America. Senator Exon proclaimed:

The information superhighway should not become a red light district. This legislation will keep that from happening and extend the standards of decency which have protected telephone users to new telecommunications devices.

Once passed, our children and families will be better protected from those who would electronically cruise the digital world to engage children in inappropriate communications and introductions. The Decency Act will also clearly protect citizens from electronic stalking and protect the sanctuary of the home from uninvited indecencies.

In a year of deregulation, Senator Exon called for more regulation. In the year when Speaker of the House Newt Gingrich placed the House of Representatives on the Internet, praising it as a landmark for democracy, Senator Exon warned America that the Internet was filled with dark places from which we needed government protection. In a year where Internet users were proclaiming the infinite utility of the World Wide Web, Senator Exon, who has apparently no Internet experience, declared a danger.

The Communications Decency Act would be passed one year later as an amendment to the Telecommunications Act of 1996.  It was struck down by a unanimous Supreme Court as a violation of the First Amendment.

For the full history of the Communications Decency Act, see The Legislative History of Senator Exon's Communications Decency Act:Regulating Barbarians on the Information Superhighway

⚖ Silver v Quora, 10th Cir. Nov. 23, 2016 :: Plaintiff Cause of Action for Defamation Against Quora Dismissed Pursuant to 47 USC 230(c)

FACTS: "Silver is an investment banker, venture capitalist, and author of 33 books on entrepreneurship and finance who resides in New Mexico."

"Quora operates a question-and-answer website at www.quora.com that allows registered users to ask and answer questions on any topic."

"This lawsuit stems from a question on the website that solicited feedback on Silver: “Has anyone worked with or heard of David Silver at Santa Fe Capital?”... Silver claims two false, disparaging posts in response to this question damaged his reputation and caused him to lose potential clients and book publishers: 

• On September 7, 2012, Tessa Salton responded, “Your instincts are correct. He is not licensed or accredited any longer. A fraud.” Id. Her post included a link to an article in The Chicago Tribune, which reports on a $23 million damages award against Silver in an investment case. Id. 
• On October 16, 2013, Neil MacAskill responded, “You are better off buying lottery tickets. One of our checks to him supposedly got lost so we sent him another. Then he cashed both and never did a thing for us. Said he built a business development plan but never delivered it. Save your money.” Id.

"Silver filed this lawsuit, which asserts a state-law claim for libel and defamation and seeks millions of dollars in compensatory and punitive damages"

RULE:  "Section 230 “creates a federal immunity to any state law cause of action that would hold computer service providers liable for information originating with a third party.” Ben Ezra, Weinstein, & Co. v. Am. Online Inc., 206 F.3d 980, 984-85 (10th Cir. 2000). It does so through the interplay of two key provisions. Under § 230(c)(1), “[n]o provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). And under § 230(e)(3), “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Id. § 230(e)(3)."

ANALYSIS: "[T]he CDA bars Silver’s libel and defamation claims against Quora. ... 'The prototypical service qualifying for this statutory immunity' [is] 'an online messaging board (or bulletin board) on which Internet subscribers post comments and respond to comments posted by others.' Quora fits squarely within this prototype."

Silver v Quora, 10th Cir. Nov. 23, 2016 

See also QUORA GETS EASY SECTION 230 WIN IN TENTH CIRCUIT–SILVER V. QUORA November 28, 2016 · by Eric Goldman Technology & Marketing Law Blog (Goldman has a screen capture of the Quora discussion)

You Cant Tell Your Customers to 'Shut Up' Anymore :: Consumer Review Fairness Act Signed into Law

Bad idea: Set up a business and provide poor goods or services; receive bad reviews online for your poor goods or services.

Worse idea: Instead of treating your customers' feedback as free expert advice and listening to their suggestions on how to improve your business, sue your customers - experience the Streisand Effect - resulting in increased media coverage highlighting your lousy goods, service, and treatment of customers.  Ensure that negatives reviews of your business get the widest exposure possible.

Worser Idea:  Attempt to solve this problem by telling your customers to shut-up. Insert a gag-clause in your terms of service so that it is a breach of contract for your customers to provide negative reviews of your service.

Jennifer Kulas Palmer testified before Congress about her negative experience with online business KlearGear.com.  According to Palmer, in 2008 her husband ordered about $20 worth of Christmas gifts from KlearGear.  When it did not arrive, they attempted to reach out to the company, but to no avail.  Like so many consumers who have had a bad experience, they wrote a negative online review.  Three years later, Palmer heard from KlearGear, claiming that Palmer had violated their Terms of Sale and that Palmer owed KlearGear $3500. Attorneys from Public Citizen represented the Palmers and filed a successful lawsuit against KlearGear. See Chris Morran, “KlearGear.com Ordered To Pay $306K To Couple Who Wrote Negative Review,” Consumerist, June 26, 2014; KlearGear must pay $306,750 to couple that left negative review Lawyer: CYRUS FARIVAR - 6/25/2014 Ars Technica; Jon Brodkin, It will soon be illegal to punish customers who criticize businesses online Ars Technica 11/29/2016.

If there was any doubt that this type of thing is a bad idea, in this year of divided and partisan politics, Congress unanimously voted to end attempts to silence customer reviews. The Consumer Review Fairness Act was signed into law by President Obama on December 14th.

According to the new law, 'form contracts' (those terms of service or standard forms shoved in front of customers to sign without ability to negotiate individual terms) are void if they prohibit customer reviews.  Any such gag provisions are unlawful and are subject to enforcement by the Federal Trade Commission or the states. The Federal Trade Commission will be publishing best practices on how to comply with the Consumer Review Fairness Act.

All of this comes about in the context of the Good Samaritan provisions of the Communications Decency Act, 47 USC 230(c), which says that an online services are not liable for the third party content.  This means that Yelp, TripAdvisor, Amazon, Google, and all the other review sites can encourage people to provide reviews of goods and services - without those online services becoming liable for those reviews. 47 USC 230(c) legally set the foundation for the interactive web where many third parties contribute without the host becoming liable for every utterance.

The Consumer Review Fairness Act establishes that you cannot tell consumers to shut up - it does not, however, protect consumers from liability for what they say.  Businesses can, for example, still seek redress for defamatory reviews. Consumers can review but they may still be held responsible for their words.   

Sen. Thune's Statement During Senate Hearing
"Zero Stars: How Gagging Honest Reviews Harms Consumers and the Economy."

⚖ Pagan v. Google, DNH 2016 :: Defamation Cause of Action Dismissed per 47 USC 230(c)

FACTS: "Pagan's complaint names "Google Corporation" as the defendant and asserts that Google defamed him by publishing false information regarding his criminal record. Specifically, he states that Google published false information labeling him as a convicted sex offender for three counts of rape in New Hampshire. Pagan asserts that the information is incorrect, and he attributes the error to a communication problem in the New Hampshire courts."

RULE: "Google is afforded immunity under the Communications Decency Act of 1996 ("CDA"), 47 U.S.C. § 230, for the publication of defamatory content prepared or posted by others. O'Kroley v. Fastcase, Inc., 831 F.3d 352, 354-55 (6th Cir. 2016). The CDA provides that "[n]o cause of action may be brought" and "no liability may be imposed under any State or local law," 47 U.S.C. § 230(e)(3), for any claim that would treat a provider of an "interactive computer service" as the "publisher or speaker of any information provided" by someone else, 47 U.S.C. § 230(c)(1). See O'Kroley, 831 F.3d at 354-55 (claims against Google for third party content properly dismissed under CDA); Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014) (claims against Facebook properly dismissed under CDA)."

CONCLUSION: "[B]ased on the facts alleged in the complaint[, Google is] immune from plaintiff's defamation claims under the CDA, and, accordingly, those defamation claims should be dismissed."

Pagan v. GOOGLE CORPORATION, Dist. Court, D. New Hampshire 2016

The Sharing Economy and Sec. 230(c) of the Communications Decency Act

The sharing economy is a challenge for local communities. On the good, it creates economic opportunity and reduces price. On the bad, it circumvents public safety and welfare protection.

Such is the clash between Airbnb and local jurisdictions. San Francisco implemented a local ordinance that permits short-term rentals on the condition that the rental property is registered. In order to register the property, the resident must provide proof of liability insurance and compliance with local code, usage reporting, tax payments, and a few other things. San Francisco then enacted another ordinance that makes it a misdemeanor crime to collect a booking fee for unregistered properties.

Airbnb and Homeaway sued arguing that plaintiffs' businesses are protected by 47 U.S.C. § 230(c) of the Communications Decency Act (and some other arguments ignored here). EFF, CDT, The Internet Association and some other usual suspects intervened ~ this case is attracting lots of attention. AIRBNB, INC. v. City and County of San Francisco, Dist. Court, ND California 2016.

Before delving into the application of the law to this case, let's review a few key facts. Airbnb is a website where property owners can list available rentals, and guests can arrange for accommodations. Airbnb does not own the properties in question. Airbnb makes its money by charging a service fee to the property owner and the guest.

Sec. 230(c) protects interactive computer services from liability for third party content. Specifically, "[n]o 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." 

Plaintiffs sued, arguing that the San Francisco regulation is preempted by Sec. 230(c).

Plaintiffs lost, and it's surprising because plaintiff is here being held accountable for the actions of a third party. But listen to the rational of the court, which reflects careful crafting by San Francisco.

First, plaintiffs are not being held liable for a third party's speech. If a property owner publishes an advertisement for a property, that is perfectly fine. The property owner can do sue, and plaintiffs have no liability. Plaintiffs are not being called on to "monitor, edit, withdraw, or block" any listings. Hosting of those rental announcements, in and of itself, is not actionable.

It's the next step that plaintiffs cannot do. Having received the content and hosted it, plaintiffs themselves cannot take the action of collecting a booking fee for an unregistered property. That is something the plaintiffs are doing, not the third party. The regulation is placing an obligation on the plaintiffs to confirm that the properties are registered. The compliance of plaintiffs is what is actionable, not the content of the property owners' listings.

Plaintiffs and intervenors scramble and cite to the long litany of caselaw that establish that Sec. 230(c) provides broad immunity. Sec. 230(c) is the favorite go-to statute for establishing that online services cannot be held liable for what other people say. The problem, according to the Court, is that in each of those cited cases, the website is being held liable for its role as a publisher of third party content. There is something illegal, offensive, or problematic with the content, and the solution of the government, or the plaintiff who believed that he or she was being defamed, was to make the website liable for the third-party content. But that is exactly the type of liability Sec. 230(c) was enacted to prevent. Online services are interactive manifestations of the engagements of multiple sources, including the host and third-parties. Sec. 230(c) establishes that interactive computer services are not liable for third-party content.

In this case, an obligation is placed on plaintiffs to confirm that rental properties are registered, and only collect booking fees from those properties that are registered. Plaintiffs can host any third party content they want.

America Income Life Ins Co v Google NDAL :: Dismissed Per Sec. 230(c) :: Case Summary

AMERICAN INCOME LIFE INSURANCE COMPANY v. GOOGLE, INC., Dist. Court, ND Alabama 2014

Facts Plaintiffs American Income Life Insurance Company and Scott Sonnenberg (collectively "plaintiffs") filed this action in the Circuit Court of Jefferson County, Bessemer Division, against Google and "X and Y, fictitious parties operating websites Google, Inc., chooses to reward with prominent placement in all its search engine results, known only to Plaintiff[s] as operators of `pissedconsumer.com' and `scam.com.'" Specifically, plaintiffs allege: The Fictitious Defendants' banners and content, broadcast via Defendant Google, Inc.'s search engine throughout Alabama, via hundreds of thousands of computer terminals, violates the Alabama Deceptive Trade Practices Act by falsely asserting that "American Income Life is a Scam."

Cause of Action: The substance of plaintiffs' Complaint is that certain business practices by defendants violate the Alabama Deceptive Trade Practices Act. Defendant moves to dismiss pursuant to 47 U.S.C. § 230(c), The Good Samaritan Provision of the Communications Decency Act.

Rule: "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." 47 U.S.C. § 230(c)(1).

Analysis "Google cannot be held liable for search results that yield content created by a third party."

[T]he only allegations in the Complaint about actions taken by Google in support of the conclusory allegation that Google "intentionally disparaged the goods, services, or business of Plaintiff by false and/or misleading representations of fact" are that Google "offer[s] dozens of product and services, including various forms of advertising and web applications," "determine[s] which [web pages] offer `content of value,'" "assess[es] the importance of every web page," "touts its patented `Page Rank' algorithm," "analyze[s] which sites are the `best sources of information across the web' for its seller-assisted marketing plan," "afford[s] prominent placement in its search engine broadcasting to the Fictitious Defendants," and "broadcast[s]" the "fictitious defendants' banners and content." After careful review of the Complaint, the court finds that plaintiffs clearly allege that Google is an interactive computer service, but not an information content provider because there are no allegations that Google originated, developed, or modified the disputed content. Instead, the face of the Complaint alleges that Google assesses the value of content across the internet and "broadcasts" the content provided by scam.com and pissedconsumer.com via its search engine. Without allegations that Google creates the disputed information, specifically the alleged false and misleading representations, plaintiffs' efforts to treat Google as the publisher of those representations fail under § 230. See [47 U.S.C.] § 230(f)(3).

The Complaint contains no allegation that Google created any content that represented American Income Life as a scam. Although the gripe sites's content was broadcast and/or returned as a result of keyword searches of "American Income Life" on Google's website, the Complaint does not allege that Google created or otherwise developed any content stating that American Income Life is a scam.

No Private Right of Action for Communications Decency Act :: Ashland Hospital v. Intl Bro of Electrical Workers 575 (Case Summary)

Background: Plaintiff Ashland Hospital Corporation d/b/a King's Daughters Medical Center (KDMC) filed suit against International Brotherhood of Electrical Workers Local 575 (IBEW),  asserting a "harassment" count citing the Communications Decency Act of 1996 (CDA), 47 U.S.C. § 223 et seq Plaintiff also filed suit against other parties and brought other causes of action (we are just interested in the CDA).

The IBEW decided to "forge a broad grass-roots community based coalition to amplify its message" that KDMC should hire locally. The IBEW launched a robocall campaign against KDMC beginning in June 2010 continuing through the first week of July. The robocall script read

Hello, my name is Kelly and I am confused by King's Daughters Medical Center and the choices they are making here in Scioto County. King's Daughters' CEO Fred Jackson has received bids from several contractors, including one that will put local people to work. Sadly, for the price of a few medical procedures, it appears that KDMC CEO Fred Jackson is going to bring in out-of-town companies and workers to build their new facility. Southern Ohio Medical Center has always committed to using local businesses and local workers, so how can we support a hospital that won't make the same commitment? Please press 1 now to leave a message for Fred Jackson, who received more than $1,150,000 in yearly compensation, and ask him why he would expect you to spend our hard-earned dollars at King's Daughters while he spends his out of town. Thank you.

Calls were allegedly made to residents of Southern Ohio and Northern Kentucky who could then choose whether to connect to Fred Jackson or Howard Harrison at KDMC. Thousands of the Ohio and Kentucky residents contacted opted to connect directly to KDMC in the months of June and July 2010. KDMC alleges that this activity "tied up multiple incoming telephone lines at KDMC's hospital facility."

Procedure:  Defendant's Motion to Dismiss, Rule 12(b)(6), Plaintiff's Communication Decency Act cause of action, 47 USC 233.

Argument: Defendant seeks dismissal on the basis that the CDA is a criminal statute that does not provide individual plaintiffs a private right of action.

Analysis: The Communications Decency Act is a criminal statute that prohibits the making of "obscene or harassing" telecommunications. 47 U.S.C. § 223(a) ("Whoever. . . makes a telephone call. . . without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number . . . shall be fined under Title 18 or imprisoned not more than two years, or both.") (internal numbering omitted). Although a criminal statute may provide an implied right of action if Congress so intended in enacting the criminal statute, Thompson v. Thompson, 484 U.S. 174, 179 (1988), such will not be the case unless legislative intent can be inferred from the statutory language or elsewhere. It is well settled, however, that the CDA does not authorize a private right of action. Sloan v. Truong, 573 F. Supp. 2d 823, 829 (S.D.N.Y. 2008) (there is no express or implied provision for a private remedy under § 223); see also Osborn v. Salter, No. 5:07CV00016, 2007 WL 1202848, at *1 (W.D. Va. April 23, 2007) ("[T]he authority to enforce the CDA lies with government authorities not with private citizens."); Universal Commc'n Sys., Inc. v. Lycos, Inc., No. 05-11172-REK, 2005 WL 5250032, at *4 (D. Mass. Dec. 21, 2005) ("Section 223 does not . . . provide a private right of action . . . so plaintiffs do not have a claim under this statute."). Where plaintiffs have initiated civil suits under this statute, courts have consistently refused to imply a private right of action. See Croteau v. California, No. 07-CV-588-IEG, 2007 WL 4180831, at *7 (S.D. Cal. Nov. 21, 2007) (no private right of action to recover for damages under 47 U.S.C. § 223); Viola v. A & E Television Networks, 433 F. Supp. 2d 613, 618 (W.D. Pa. 2006) ("[T]he authority to enforce the CDA lies with the proper government authorities and not with a private citizen such as plaintiff.").

Holding: Defendant's Motion to Dismiss Plaintiff's CDA Claim granted.

ASHLAND HOSPITAL CORPORATION v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 575, Dist. Court, ED Kentucky 2011

Caselaw Construing 47 USC 230 Immunity is Surprisingly Scant

At least according to one Arizona Superior Court: Children of America v. Magedson, CV 2007-003720 (AR Superior Court Oct. 31, 2007).

The court's order itself is "surprisingly scant," thus we know little of the facts surrounding this case. What we do know is that once again it involves Ripoffreport.com. Jinkees! The Sec. 230 caselaw for this one defendant is surprisingly robust. Ripoffreport.com must have some well paid attorney on retainer that does little more than mash the print button for the proforma Sec. 230 Motion to Dismiss form... merely taking a bit of time to scrawl in the name of the latest plaintiff.

Of course, if the court's law clerks are too busy researching water rights cases, we are glad to refer them to our "surprisingly scant" list of Sec. 230 cases.

Anyway, we here at Cybertelecom are likewise into automation and have developed our proforma blog post for these Ripoffreport.com cases. Here it is:

Some plaintiff [FILL IN BLANK] got irked by what some disgruntled third party wrote about them at Ripoffreport.com. Ripoffreport.com "is a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals." Ripoffreport.com did not write the disgruntled comment. Ripoffreport.com filed a Rule 12(b)(6) Motion to Dismiss pursuant to 47 USC § 230. The Court granted the motion and dismissed the complaint as against defendant Ripoffreport.com.

Of course it never goes proforma, does it.

Plaintiff apparently alleged that Ripoffreport.com either edited or authored the headline of the disgruntled comment - and that headline could be actionable. The court has to take the facts as alleged by plaintiff as true for a motion to dismiss (the court is merely deciding whether there is a potential claim for which relief can be granted -- it is not deciding the merits of the case as to whether in fact relief should be granted - it's like if I sued you in court for being short - while this may be true, it is not a cause of action for which relief can be granted). Therefore the court dismisses the complaint against Ripoffreport for the disgruntled third party comment, but denies the motion to dismiss with regard to the headline. But the Court made clear, if plaintiff cant prove that Ripoffreport authored the disgruntled headline, then plaintiff will face pretty much the same outcome as the rest of the complaint.

So what's cool about all this. I go looking at Ripoffreport.com for a bit of deep research in preparation for this post, and I find a page entitled Want to Sue Ripoff Report? The page states:

If you are considering suing Ripoff Report because of a report which you claim is defamatory, you should be aware that to date, Ripoff Report has never lost such a case. This is because of a federal law called the Communications Decency Act or "CDA", 47 U.S.C. § 230. Because this important law is not well known, we want to take a moment to explain the law, and to also explain that the filing of frivolous lawsuits can have serious consequences for those who file them, both parties and their attorneys. The CDA is part of our federal laws.An excellent Wikipedia article discussing the history of the law can be found here. In short, the CDA provides that when a user writes and posts material on a website such as Ripoff Report, the site itself cannot, in most cases, be held legally responsible for the posted material.

Do the plaintiff's in these cases get to file RipoffReport.com disgruntled comments about their attorneys who advised them to file these pointless complaints?

The Right to Whine :: Global Royalties, Inc., v Xcentric Ventures, LLC, (DAR October 10, 2007)

The Good Samaritan provisions of Sec. 230 the Communications Decency Act hold water over the water – where water means overseas international judgments – and where overseas in this case means the dirt road leading north guarded by Canadian Mounties. Between a Canadian judgment for defamation which involved third party content, and the safeguards of Sec. 230 of the Communications Decency Act, the Good Samaritan wins the smack-down.

So here’s the dirt. This week’s spat is Global Royalties, Inc., v Xcentric Ventures, LLC, No. 07-956-PHX-FJM (DAR October 10, 2007). Defendant Xcentric Ventures runs a whine-website called Ripoff Report. A disgruntled third party visited defendant’s website and expressed disgruntledness in three separate posts. Plaintiff Global Royalties took offense in the disgruntledness and ended up suing defendant and disgruntled party in Canadian court. Defendant never showed up. The court issued an injunction requiring defendant to remove all of disgruntled party’s posts from its website, prohibiting defendant from posting any further comments about plaintiff, and pushed the dispute to trial court for talk about damages.

Plaintiff brought the judgment South-of-the-Border down to Arizona seeking enforcement, and also called defamation on defendant. The court said, wait a minute, we don’t just enforce Canadian-hockey playing court orders as a matter of course. And as to “defamation,” the comments in question were written by a third party and not defendant, and therefore pursuant to the Good Samaritan clause of the CDA, the defendant is not liable. 47 USC § 230.

Wait a minute, argued plaintiff, defendant never took down the comments as ordered by Dudley Do Right, and therefore plaintiff has “adopted” the disgruntled statements.

Sorry, responded the court, but it is well established that notice to a website owner of some problem with someone whining does not morph the whining into the website’s own speech. This aint the DMCA.

Which led the judge to do a little whining of his own: With no risk or liability for third party content, a website owner has no incentive to take down that content where it flusters some plaintiff. “If it was an unintended consequence of the CDA to render plaintiffs helpless against website operators who refuse to remove allegedly defamatory content, the remedy lies with Congress through amendment to the CDA.”

Poor poor helpless plaintiffs (that hire attorneys who haven’t read Sec. 230 case-law).

One of the truly great innovations of the Internet and specifically Web 2.0 is the interactive features that permits disgruntled third party’s to visit review web sites and whine about the failings of their least favorite companies. You can find out how horrible your plumber is, how horrible your teacher is, or how horrible Bruce Willis’ latest movie is (and if you believe every review or comment you read on the Internet, I have a nice investment in Nigeria to recommend to you). International treaties and fear of the Dudley Do-Right cannot thwart this. It’s good to know that your right to whine holds water over the water (even where the water is a frozen hockey pond).

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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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