Computer Ethics, Summer 2010

Batzel v Cremers, continued

The appellate case was heard by the Ninth Circuit (Federal Appellate court in CA, other western states); a copy is at http://cs.luc.edu/pld/ethics/BatzelvCremers.pdf.  (Page numbers in the sequal are as_printed/relative).

Judge Berzon:

[Opening (8431/4)] There is no reason inherent in the technological features of cyberspace why First Amendment and defamation law should apply differently in cyberspace than in the brick and mortar world. Congress, however, has chosen for policy reasons to immunize from liability for defamatory or obscene speech "providers and users of interactive computer services" when the defamatory or obscene material is "provided" by someone else.

Note the up-front recognition that this is due to Congress.

Section 230 was first offered as an amendment by Representatives Christopher Cox (R-Cal.) and Ron Wyden (D-Ore.). (8442/15)

Congress made this legislative choice for two primary reasons. First, Congress wanted to encourage the unfettered and unregulated development of free speech on the Internet, and to promote the development of e-commerce. (8443/16) ...

(Top of 8445/18) The second reason for enacting § 230(c) was to encourage interactive computer services and users of such services to self-police the Internet for obscenity and other offensive material

[extensive references to congressional record]

(8447/20): In particular, Congress adopted § 230(c) to overrule the decision of a New York state court in Stratton Oakmont, 1995

Regarding question of why a pro-free-speech clause was included in an anti-free-speech law (or, more precisely, addressing the suggestion that §230 shouldn't be interpreted as broadly pro-free-speech simply because the overall law was anti-free-speech):

(8445/18, end of 1st paragraph): Tension within statutes is often not a defect but an indication that the legislature was doing its job.

The District court limited this to ISPs. The Circuit court argued that (a) Cremers was a provider of a computer service, and (b) that didn't matter because he was unquestionably a USER.

8450/23, at [12] Critically, however, § 230 limits immunity to information "provided by another information content provider."

Here's one question: was Smith "another content provider"? You can link and host all you want, provided others have created the material for online use. But if Smith wasn't a content provider, then Cremers becomes the originator.

The other question is whether Cremers was in fact partly the "provider", by virtue of his editing. Note, though, that the whole point of §230 is to allow (family-friendly) editing.

Answer to first question:

8450/23, 3rd paragraph: Obviously, Cremers did not create Smith's e-mail. Smith composed the e-mail entirely on his own. 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 for inclusion in the listserv) rise to the level of "development."

More generally, the idea here is that there is simply no way to extend immunity to Stratton-Oakmont-type editing, or to removing profanity, while failing to extend immunity "all the way".

Is that actually true? [class discussion]

[end of Tuesday class]

The Court considers some other partial interpretations of §230, but finds they are unworkable.

Second point (here the judge reins in an even-more-expansive potential interpretation)

8584/27, 3rd paragraph Smith's confusion, even if legitimate, does not matter, Cremers maintains, because the §230(c)(1) immunity should be available simply because Smith was the author of the e-mail, without more. We disagree. Under Cremers's broad interpretation of §230(c), users and providers of interactive computer services could with impunity intentionally post material they knew was never meant to be put on the Internet. At the same time, the creator or developer of the information presumably could not be held liable for unforeseeable publication of his material to huge numbers of people with whom he had no intention to communicate. The result would be nearly limitless immunity for speech never meant to be broadcast over the Internet. [emphasis added]

The case was sent back to district court to determine this point (which it did, in Cremer's favor).

8457/30, at [19] We therefore ... remand to the district court for further proceedings to develop the facts under this newly announced standard and to evaluate what Cremers should have reasonably concluded at the time he received Smith's e-mail. If Cremers should have reasonably concluded,  for example, that because Smith's e-mail arrived via a different e-mail address it was not provided to him for possible posting on the listserv, then Cremers cannot take advantage of the §230(c) immunities.

Judge Gould partial dissent in Batzel v Cremers:

Quotes:

The majority gives the phrase "information provided by another" an incorrect and unworkable meaning that extends CDA immunity far beyond what Congress intended.

(1) the defendant must be a provider or user of an "interactive computer service"; (2) the asserted claims must treat the defendant as a publisher or speaker of information; and (3) the challenged communication must be "information provided by another information content provider."2 The majority and I agree on the importance of the CDA and on the proper interpretation of the first and second elements. We disagree only over the third element.3

Majority: part (3) is met if the defendant believes this was the author's intention. Gould: This is convoluted! Why does the author's intention matter?

Below, when we get to threatening speech, we will see that the issue there is not the author's intention so much as a reasonable recipient's understanding.

The problems caused by the majority's rule would all vanish if we focused our inquiry not on the author's [Smith's] intent, but on the defendant's [Cremers'] acts [pld: emphasis added here and in sequel]

So far so good. But then Gould shifts direction radically:

We should hold that the CDA immunizes a defendant only when the defendant took no active role in selecting the questionable information for publication.

How does this help Prodigy with family-friendly editing or Stratton-Oakmont non-editing? Why not interpret (3) so the defendant is immunized if the author did intend publication on internet?

Gould: A person's decision to select particular information for distribution on the Internet changes that information in a subtle but important way: it adds the person's imprimatur to it

No doubt about that part. But Congress said that chat rooms, discussion boards, and listservs do have special needs.

And why then add the "and users" lanuage to the bill? These aren't users.

Gould: If Cremers made a mistake, we should not hold that he may escape all accountability just because he made that mistake on the Internet.

Should this liability be there, in light of §230? Does §230 mean that a company cannot be found liable as publisher or speaker for email created by employees?

Arguably, the main issue here is a "hostile work environment", which is a none-of-the-above in terms of publisher, author, or distributor liability. This is an important point regarding the extent of §230 immunity. Companies are not being found liable as publisher or author, but rather for "tolerating" the authorship.

Since this case, there have been MANY others decided by application of this decision. See eff.org's section on Free Speech, http://www.eff.org/issues/free-speech.

There have also been many attacks on §230 immunity. Some limitations may come, someday.

Publisher liability (except when eliminated by §230) exists even without knowledge of defamatory material's inclusion:

Distributor liability is not exempted by §230. It is liability for knowingly distributing defamatory material. However, in Zeran v AOL (below), the courts found that prior notice doesn't automatically make for distributor liability.

Most likely approach to attack §230 immunity (2007): distributor liability.

§230 odds and ends

There is still some question though about what happens if you do actively select the material. Cremers played a very limited editorial role. What if you go looking for criticism of someone and simply quote all that? And what if you're a respected blogger and the original sources were just Usenet bigmouths?

EFF: One court has limited §230 immunity to situations in which the originator "furnished it to the provider or user under circumstances in which a reasonable person...would conclude that the information was provided for publication on the Internet...."

Be wary, too, of editing that changes the meaning. Simply deleting some statements that you thought were irrelevant but which the plaintiff thought were mitigating could get you in trouble!

Zeran v AOL

This was a §230 case that expanded the rules to include at least some distributor liability.

Someone posted a fake ad for T-shirts with tasteless slogans related to the Oklahoma City bombing, listing Kenneth Zeran's home number. Zeran had nothing to do with the post (although it is not clear whether the actual poster used Zeran's phone intentionally). For a while Zeran was getting hostile, threatening phone calls at the rate of 30 per hour.

 Zeran lost his initial lawsuit against AOL.

Zeran appealed to the 4th circuit, arguing that §230 leaves intact "distributor" liability for interactive computer service providers who possess notice of defamatory material posted through their services.

Publisher liability: liability even without knowledge of defamatory material's inclusion:

Distributor liability: liability for knowingly distributing defamatory material

Zeran argued that AOL had distributor liability once he notified them of the defamatory material.

Zeran lost. In part because he "fails to understand the practicalimplications of notice liabililty in the interactive-computer-service context"; note that the court here once again tried to understand the reality of the internet. The court also apparently felt that AOL was still acting more as publisher than distributor, at least as far as §230 was concerned.

Still to be resolved: what if I quote other defamatory speakers on my blog in order to "prove my point"? Batzel v Cremers doesn't entirely settle this; it's pretty much agreed Cremers did not intend to defame Batzel.

There's also the distributor-liability issue left only partly settled in Zeran.

Barrett v. Rosenthal, Nov. 20, 2006: California supreme court affirms core §230 ruling

Rosenthal posted statements on Internet newsgroups about two doctors who operated Web sites aimed at exposing fraud in alternative medicine. Her posts quoted an allegation by Tim Bolen that one of the doctors engaged in "stalking".

From www.gannett.com/go/newswatch/2006/november/nw1130-3.htm

In the case before the California Supreme Court, the doctor [Barrett] claimed that by warning Rosenthal that Bolen's article was defamatory, she "knew or had reason to know" that there was defamatory content in the publication. Under traditional distributor liability law, therefore, Rosenthal should therefore be responsible for the substance of Bolen's statements, the doctor claimed. The court rejected the doctor's interpretation, saying that the statute rejects the traditional distinction between publishers and distributors, and shields any provider or user who republishes information online. The court acknowledged that such "broad immunity for defamatory republications on the Internet has some troubling consequences," but it concluded that plaintiffs who allege "they were defamed in an Internet posting may only seek recovery from the original source of the statement."

Barrett could still sue Bolen. But Bolen might not have had any money, and Barrett would have to prove that Bolen's original email, as distributed by Bolen, was defamatory. If Bolen sent it privately, or with limited circulation, that might be difficult.

See also wikipedia article http://en.wikipedia.org/wiki/Barrett_v._Rosenthal

Rosenthal was arguably even more of an Ordinary User than Ton Cremers.

In Donato [v Moldow], two members of the Emerson Borough Council [New Jersey] sued a Web site operator and numerous individuals after they used pseudonyms when posting on the Web site for "defamation, harassment, and intentional infliction of emotional distress." (74) The appellants argued that Stephen Moldow, the website operator, was liable for the damages because he was the publisher of the website. (75) Much to their chagrin, the trial judge found that Moldow was immune from liability under the Communications Decency Act, (76) and the appellate court agreed. (77) The court reasoned that:

The allegation that the anonymous format encourages defamatory and otherwise objectionable messages 'because users may state their innermost thoughts and vicious statements free from civil recourse by their victims' does not pierce the immunity for two reasons: (1) the allegation is an unfounded conclusory statement, not a statement of fact; and (2) the allegation misstates the law; the anonymous posters are not immune from liability, and procedures are available, upon a proper showing, to ascertain their identities. (78)

Craigslist and Prostitution

Jane Doe acting on behalf of Julie Doe, her minor daughter She was 13 when she created a myspace page, 14 when she went on a date with someone age 19 who then assaulted her. On the face of it, Doe claims that the suit is about MySpace failing to protect children, or for failing to do SOMETHING. But the court held that it's really about lack of liability for Julie Doe's posting. Note that this isn't libel law at all. The court argued that:

It is quite obvious that the underlying basis of Plaintiff's claims is that, through postings on MySpace, *** and Julie Doe met and exchanged personal information which eventually led to ... the sexual assault.

Therefore the case is in fact about publication, and therefore MySpace is immune under Section 230.

Criminal Libel

Google Conviction in Italy

• BBC: google execs convicted in Italy
• google blog: http://googleblog.blogspot.com/2010/02/serious-threat-to-web-in-italy.html
• New York Times: http://www.nytimes.com/2010/02/25/technology/companies/25google.html
  

spam

1996: aol v Cyber Promotions (Baase, p 161)
Note that CP sued aol for blocking CP's spam! Eventually AOL sued CP.

Intel-Hamidi case: Ken Hamidi sent email to 30,000 intel employees. Intel sued. It eventually reached the California Supreme Court, who ruled in Hamidi's favor.

Harris Interactive sued the Mail Abuse Prevention System, for blocking their opinion-poll email. One interesting claim by Harris is that they were "turned in" to MAPS by a competitor. Harris dropped the suit.

CAN-SPAM act

People have a right to send email. Sort of. Maybe not companies, though.

Regulated classes of speech

All these categories are things that, once upon a time, private individuals seldom if ever got caught up in.

p 166: Commodity-Futures Trading Commission (CFTC): they required that, if you wrote about commodity futures, you needed a license. The regs were originally intended to cover traders, but CFTC applied them to newsletters too, and then the web. (These latter rules were deleted in 2000.)

New York State outlawed not only the direct sale of wine from out-of-state-wineries to New Yorkers, but also the advertising. What about web pages?

p 176: political campaign laws. Anything you do that is "coordinated" with a political campaign is considered to be a contribution. These are subject to limitations, and to reporting requirements.

McCain-Feingold: you cannot even mentioning a candidate's name or face within 60 days of an election.

In 2004, the Federal Election Commission was ordered by a judge to write rules extending the McCain-Feingold rules to the Internet.

How would this affect bloggers? Would they be silenced?

Note that the opposing candidates are VERY likely to file complaints.

2006 FEC rules on the internet: it's ok as long as you aren't paid, EVEN IF political activity is "in coordination with" the candidate.

2007: Supreme court struck down the McCain-Feingold restriction on issue ads.

2010: Supreme Court struck down most remaining restrictions on corporate speech

Home selling: if you list your house online, do you need a real-estate license?

Libel and Internet complaints about corporations

A selected few "sucks" sites. Search for (large company name) + "sucks" to find more.

The McLibel case

Unemployed ex-postman Dave Morris and part-time bar worker Helen Steel called McDonald's a multinational corporate menace - abusing animals, workers and the environment and promoting an unhealthy diet.
http://www.organicconsumers.org/mclib.html

[NB: why are Morris & Steel identified above by their occupations?]

They were distributing pamphlets claiming:

• mcDonalds land use led to displacement & hunger for third-world farmers
  
• locals starve while food crops are exported for use as animal feed
  
• rainforest destruction
  
• destruction of tribal lifestyles in rainforest
  
• mcdonalds food is high in fat
  
• encourages overeating
  
• encourages children to think McD's is "normal"
  
• hamburgers are made of dead animals
  
• unions are not allowed

Note that their story had NOTHING to do with the internet!

Morris & Steel raised £35,000 for their defense, most of which apparently went to paying for transcripts.

From mcspotlight.org/case/trial/story.html:

Mr Justice Bell took two hours to read his summary to a packed court room. He ruled that Helen and Dave had not proved the allegations against McDonald's on rainforest destruction, heart disease and cancer, food poisoning, starvation in the Third World and bad working conditions. But they had proved that McDonald's "exploit children" with their advertising, falsely advertise their food as nutritious, risk the health of their most regular, long-term customers, are "culpabably responsible" for cruelty to animals, are "strongly antipathetic" to unions and pay their workers low wages.

And so, Morris & Steel were held liable for £60,000 in damages.

McDonalds had to hire spies to infiltrate London Greenpeace to get names of members involved.

Morris & Steel raised £35,000 for their defense, most of which apparently went to paying for transcripts.

On 15th February 2005, the European Court of Human Rights in Strasbourg declared that the mammoth McLibel case was in breach of the right to a fair trial and right to freedom of expression.

"Libel Terrorism": a play on "libel tourism", the practice of suing for Libel in the UK (or another friendly venue, though it's hard to beat the UK's "defendant must prove truth" doctrine, plus the "plaintiff need not prove malice" part)

New York now has the Libel Terrorism Protection Act.

Case: Sheikh Khalid bin Mahfouz v Rachel Ehrenfeld

Rachel Ehrenfeld wrote Funding Evil, a rather polemical book about how terrorist organizations gain funding through drug trafficking and other illegal strategies. The first edition appeared in 2003. The book apparently alleges that Sheik Khalid bin Mahfouz is a major participant in terrorist fundraising.  Mahfouz sued in England, although the book was not distributed there; however, 23 copies were ordered online from the US. In 2005 the court in England found in Mahfouz's favor, describing Ehrenfeld's defense as "material of a flimsy and unreliable nature" (though some of that may have been related to the costs of mounting a more credible defense, and Ehrenfeld's conviction that no such defense should be necessary), and ordered Ehrenfeld to pay $225,000.

Ehrenfeld filed a lawsuit against Mahfouz in the US, seeking a declaration that the judgement in England could not be enforced here. The case was dismissed because the judge determined that the court lacked jurisdiction over Mahfouz. A second ruling arriving at the same conclusion came in 2007.

In May 2008, New York state passed the Libel Tourism Protection Act, that offers some form of protection against enforcement in New York state of libel claims from other countries. However, Mahfouz has not sought to collect, and probably will not.

gatt.org, and cyberhoaxes

(compare wto.org)

Is this funny? Or serious? Are there legitimate trademark issues?

Note that it keeps changing.

Planned Parenthood v American Coalition of Life Activists

Why would a judge issue rules on what typestyle (eg strikethrough) a website could use? Did the judge in fact issue that ruling, or is that just an exaggeration from the defendants? The actual injunction (from the DC judge ruling link, below) states

That is much more general than just "no strikethrough", though the strikethrough was widely interpreted as a "specific intent to threaten".