As Old West gunslingers and a lost generation of Russian idealists might have said about anarchy, enjoy it while it lasts. Sooner rather than later, law and order is going to muscle in.
The exhilarating thing about the Internet, in the minds of so many of those who call it home, is the wide-open nature of the territory. It’s not just the news that wants to be free there but every self-indulgent human impulse. But while browsers blissfully graze, the forces of restraint gather and organize. Newspaper barons slipped into Chicago two weeks ago to discuss business models that would impose corporate economics on the Internet. Meanwhile, our federal courts have been seeking to impose law.
For now, what law there is allows proprietors of Web sites to maintain any sort of establishment they choose to run. If they order patrons to kick off their boots and unbuckle their guns, that’s swell; but if they turn a blind eye to the clientele’s donnybrooks, that’s OK too. In short, pretty much anything goes. But many signs suggest the courts aren’t happy with this state of affairs, and Web hosts don’t expect it to last.
Consider: the law that gives them the freedom to ignore indecent behavior is Section 230 of what’s called the 1996 Communications Decency Act. The centerpiece of Section 230 is its so-called Good Samaritan provision.
Courts don’t care for laws that send mixed messages. Addressing the contradictions that drip from Section 230, Frank Easterbrook, chief justice of the Court of Appeals for the Seventh Circuit here in Chicago, has strongly suggested on more than one occasion that the courts should take a rag to it and wipe it clean.
Back in 2003 Easterbrook heard a case called Doe v. GTE, which involved the marketing of videos of naked college athletes surreptitiously recorded in their locker rooms. In addition to the marketers, the jocks sued GTE Corporation and a couple of other companies that had provided the marketers with Internet access and Web-hosting services. A federal judge dismissed the claims against the Web hosts; a three-judge panel heard the appeal and Easterbrook wrote the unanimous opinion. Observing that the plaintiffs were in “pursuit of the deep pockets,” he showed little sympathy for their case. But it interested him that the district court had ruled against the plaintiffs on grounds that the Web hosts were protected by Section 230 of the CDA. Easterbrook had a few things he wanted to say about that law, and he took the opportunity.
Section 230 contains two key clauses: §230(c)(1) says, “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.” The key word there is publisher. Publishers can be sued for what they publish, even if it’s a letter to the editor. Courts have reasoned that if a mere provider of a communications service—be it GTE Corporation or your telephone company or the post office—cannot be regarded as a publisher, it cannot be held liable for what gets communicated under its roof the way a publisher can. Easterbrook conceded that every appellate court that had considered 230 read it this way. “This approach has the support of four circuits,” he wrote. “No appellate decision is to the contrary.”
The second key clause is §230(c)(2), the Good Samaritan clause. It says that a service provider has the right to try to keep a clean house and can’t be sued on First Amendment grounds for what it removes. It says explicitly that no provider “shall be held liable . . . on account of any action voluntarily taken in good faith” to limit offensive material, regardless of whether “such material is constitutionally protected.” And another clause in Section 230 makes it clear that no liability means “no liability may be imposed under any State or local law.”
So as Easterbrook marveled six years ago, Web hosts get to have it both ways: if they censor material the public tries to post on their sites the Good Samaritan provision protects them; if they decide to let even the most blatant calumnies stand, they’re protected by the courts’ interpretation of §230(c)(1).
If Web hosts aren’t damned if they do and aren’t damned if they don’t, Easterbook figured, then they won’t, because “precautions are costly, not only in direct outlay but also in lost revenue from the filtered customers.” So here, in his view, was a so-called decency act that encouraged indecency. To take care of that, Easterbrook volunteered a fresh way of reading the law.
Bear in mind, the hosts who don’t patrol their sites are not some tawdry Internet demimonde. Readers of any forum, the Reader‘s site included, know that public comments flow hot and heavy; but monitoring them draws resources away from other tasks, like news gathering. And Craigslist transformed classified advertising by offering itself as a passive and mostly free online bulletin board. Without a shield against litigation, none of us could function as we do now.
But Easterbrook wondered why the courts had all read §230(c)(1) as if it granted Web sites immunity. Why not read it as a simple “definitional clause” stating that a provider is not a publisher, he asked. If the courts do that, he reasoned, a Web host acting as a good Samaritan and a Web host running a bawdy house would both remain protected from libel and defamation suits, but the bawdy house operators could be brought to heel by their states. Easterbrook suggested some ways. He proposed “state laws or common-law doctrines that induce or require [a host] to protect the interests of third parties, such as the spied-on plaintiffs.” He suggested that a state unhappy with the swill its Web hosts were permitting might regulate them “in their capacity as intermediaries.”
If the plaintiffs had cited such a state regulation and argued that the Web hosts violated it, Easterbrook might have been ready right then and there to overturn the lower court. But the plaintiffs hadn’t, and he didn’t. Yet he had shown tomorrow’s plaintiffs and judges the way.
Time passed. Three years ago the Chicago Lawyers’ Committee for Civil Rights Under Law (CLC) sued Craigslist, alleging that the site allowed real estate ads that violated the federal Fair Housing Act. Craigslist argued that it was protected by §230(c)(1); the CLC argued that if §230(c)(1) were read the way Easterbrook’s 2003 opinion said it should be read, Craigslist wasn’t.
Easterbrook had blazed a trail, and District Court judge Amy St. Eve followed it. She allowed that “near unanimous case law holds that Section 230(c) affords immunity to [Internet connection sharers] against suits that seek to hold an ICS liable for third-party content.” She called Zeran v. America Online, a 1997 case, the “fountainhead of this uniform authority,” and she granted that “virtually all subsequent courts” have concluded that §230(c)(1) “offers ICSs a ‘broad,’ ‘robust’ immunity.”
But like Easterbrook before her, St. Eve was in no mood to honor precedents she didn’t agree with. “Given the . . . overbreadth, internal inconsistency, and problematic applications,” she said, “the Court respectfully declines to follow Zeran‘s lead.”
Craigslist wanted St. Eve to dismiss the suit because §230(c)(1) barred “any cause of action” against it. No, said St. Eve, it bars only actions that treat Craigslist as a publisher of third-party material. In the end she decided the CLC suit was such an action and dismissed it—but in the course of finding for Craigslist she drilled holes through its claim of blanket immunity.
The CLC appealed to the Seventh Circuit, where guess who was waiting. In her decision, St. Eve had quoted at length from Easterbrook’s 2003 opinion. Affirming her decision for a unanimous three-judge panel, Easterbrook quoted at length from it and used the occasion to make his own older argument even stronger. In MGM Studios v. Grokster in 2005, a unanimous Supreme Court had overruled two lower courts and held that companies marketing file-sharing software could be sued for copyright infringement by the creators of entertainment materials being copied. “Grokster,” Easterbrook asserted, “is incompatible with treating §230(c)(1) as a grant of comprehensive immunity from civil liability for content provided by a third party.” Grokster, like Craigslist, had merely provided an online service, but it couldn’t dissociate itself from the ends to which the service was put.
Easterbrook made it clear in his Craigslist opinion that he understood the burden that would be placed on Craigslist if it had to hire staff to vet the “more than 30 million notices” posted on its system each month. And I sense a whiff of impatience with the legal hairsplitting he seemed to think the CLC was asking for. He wrote, “One of the ads to which the Lawyers’ Committee objects contains the phrase ‘Catholic Church and beautiful Buddhist Temple within one block.’ The Committee sees this as a signal of religious preference; Craigslist sees it as a description of the neighborhood, helping people zero in on properties most attractive to their preferences and no more implying exclusion than ‘elementary school within five minutes’ walk’ implies that the landlord won’t rent to childless couples.”
But what about the next time Craigslist found itself in the dock? We know the answer to that. Last year Craigslist received a letter from the attorneys general of 40 states demanding that it clean up its “erotic services” section, and in April a Boston woman who advertised massage services on it was murdered. Rather than wage a Section 230 defense, Craigslist caved, cleaned up the site, and promised to police it.
There the matter rests—for now. An attorney I know who specializes in media law tells me the various cases that have included successful Section 230 defenses have one thing in common: judges who said the law gave them no choice but they wished it did. (Congress has big ears.) And if you’re inclined to shrug off Easterbrook as a conservative Republican, consider that both his opinions were signed by Judge Diane Wood, who recently made President Obama’s short list for appointment to the Supreme Court.
How far away is the kind of Internet regulation that Easterbrook says federal law should permit? I have no idea. But if you think none is coming, dream on.