Appeals Judge: Don’t Bank on Courts for Broad Section 230 Immunity

The “unreasoned and unreasonable decision” of the 4th U.S. Circuit Court of Appeals in Zeran v. America Online in 1997 was followed by many judges, making the Internet a haven for defamation, gambling and pornography, Kline said. “For reasons I find very unpersuasive,” in 2006 the California Supreme Court reversed the opinion he wrote for a unanimous three-judge panel in Barrett v. Rosenthal that a libel suit over republication of someone else’s e-mail message could be pursued despite section 230. “I may be the first, but I'm not going to be the last” judge to challenge the “incivility” and other harm from this wrong-headed court doctrine, Kline said.

Section 230 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.” Individual posters have been treated as “information content providers,” and there are exceptions to the immunity for intellectual-property infringement and violations of federal criminal laws, said Peter Carome of WilmerHale, moderator of the conference panel that Kline was on.

Chief Judge Harvie Wilkinson wrote in the Zeran opinion that distributor liability would “chill free speech” online, Kline said. “I'm not saying he’s wrong about that,” Kline said. “I'm just saying he doesn’t know about that, and I don’t either.” And Wilkinson’s contention that his conclusion carried out congressional intent is “preposterous,” Kline said. “There is nothing in the legislative history” suggesting that Congress wanted the Communications Decency Act to make the Internet safe for indecency. Academics who aren’t in the pay of ISPs and Web sites agree that “Zeran was wrongly decided,” he said.

The Zeran line of cases gives a green light to “lawless behavior that’s shocking,” Kline said. It’s a license to wreck reputations, he said. “This is a scarlet letter. You are defamed on the Internet, this is there forever.” Most victims “are ordinary people whose lives have been destroyed,” Kline said.

Now judges are starting to undo the protections that their colleagues invented, Kline said. As a result, “there’s a lot of conflict and a lot of uncertainty” in the case law, he said. Fair Housing Council v. Roommates.com in the 9th Circuit in San Francisco and Chicago Lawyers’ Committee v. Craigslist in the 7th Circuit in Chicago have undermined the presumed solidity of the immunity, Carome said.

“It’s a mistake for you and your employees to leave this to people like me” -- judges -- “because we don’t understand” the technology business, Kline said. He said he’s almost 70 and wouldn’t be able to use a PC for anything but word processing and e-mail without help from his children: “This ought to be done by Congress.”

Instead, Internet companies are following the advice of their attorneys, who thrive on the legal mess, Kline said: “If there’s one good thing about this immunity, it’s that it has created a lot of work for lawyers and will create a lot more.”

Nicole Wong, Google’s deputy general counsel for products and intellectual property, defended broad immunity under the provision. Section 230 “supplies breathing room for a platform to grow,” she said. “We still need that breathing room. The adult is not always in the room” monitoring the Web “and amazing things are happening because of that… It is the democratization of speech in a way that we have never seen before.”

Google sees how different matters are in many of the countries where the company has operations, Wong said: “If the platform is held liable” for others’ statements, “you end up with less speech.” She had mused publicly earlier in the week about going to Congress to amend section 230 because of the recent decisions (WID May 13 p6), but she didn’t elaborate at this conference.

Alfred Perry, Paramount Pictures’ vice president of business and legal affairs, defended the Zeran line as correctly recognizing that Congress meant section 230 to give the Internet “room to grow and experiment unfettered,” with stated exceptions. He said it was unusual for his company, owned by Viacom, to agree with Google, the owner of YouTube, which Viacom is suing in a major copyright infringement case. “We rely” on the immunity daily at Paramount and elsewhere at Viacom, Perry said. Though judges are narrowing the protection, “there still is that line” for the businesses to judge their activity against, he said. “Take away uncertainty, we feel good.”

Steven Tapia, a Microsoft senior attorney, said he didn’t know whether Zeran was decided correctly. Section 230 and the Digital Millennium Copyright Act’s notice-and- takedown safe harbor for infringement are based on technology assumptions that are “15 years old at least,” Tapia said. They presume “knowledge” and “control” by Internet companies, he said. But now “you have to wonder whether anybody is really in control” online in a way that makes retractions a meaningful remedy and notice-and-takedown a prompt enough way to prevent damage, Tapia said. -- Louis Trager

Legal Frontiers in Digital Media Notebook…

Federal law “at least seems to raise a very serious issue” about Phorm’s deep-packet inspection, done to profile Internet users and serve them targeted ads, an Electronic Frontier Foundation lawyer said Friday. Other marketing companies that make deals with Internet service providers for access to data such as all user Web site visits and search engine queries might be violating the Wiretap Act and the Stored Communications Act -- but too little is known about how they work even to reach a preliminary conclusion, EFF’s Lee Tien told a Stanford University conference. Judges’ evaluation of such information interceptions’ legality vary by case, said Eric Goldman of Santa Clara University’s High Tech Law Institute. The Wiretap Act’s “plain language” indicates Phorm’s system is prohibited, Tien said, conceding that conclusion is “not a slam dunk.” The law bars disclosing or using intercepted information and taking it in the first place, he said. A company would risk trouble “unless they did some very clever architecting,” told Internet users involved of its efforts and, in EFF’s view, made participation opt-in, Tien said. But it’s difficult to say how strictly a court will enforce consent requirements, he said. An ISP might assert the provider’s exception to the Act, but that excuses only interceptions needed to provide service or protect rights or property, he said: “They'd have a hard time of it, based on the case law.” And DoJ “has always tried to keep the provider exception extremely narrow,” Tien said. Deep-packet inspection creates security risks by creating large pots of personal data attractive to intruders, Tien said. Other companies doing deep-packet inspection to target ads are NebuAd and Front Porch, he said. -- LT

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YouTube is considering taking into account, in figuring the chances that an uploaded video infringes copyright, how much of a protected work is being used and how much of the uploaded video it represents, General Counsel Zahavah Levine said Friday. But Internet users shouldn’t have to justify uses of protected works or parts of them, said Anthony Falzone, executive director of the Stanford Center on Internet & Society’s Fair Use Project. The two appeared on a panel at the university’s Legal Frontiers in Digital Media conference. “Natural risk aversion” will lead many users to back down when they have the right not to, he said. Filtering technology becomes a “censor on a chip” if its manner of use means that “content just goes away in the middle of the night” when found to match a protected work, Falzone said. But the software is appropriate if used only to flag questionable material, he said. “Content shouldn’t disappear without human review” by the online platform or the rights holder, Falzone said. “That’s a great theoretical position,” Levin said. “It’s not a practical position… What if an uploaded clip matches 100 percent of a movie?” The panel also reviewed downsides of getting content licenses for material that a licensee may have used fairly. Licensed rights may be narrower than fair use and, unlike it, limited in time, Falzone said. Over time, judges may find that seeking licenses is a standard industry practice, broadening the obligation to do that, said Falzone and Alison Wauk, a CBS assistant general counsel. Video search engines that once relied on fair use to index content now are seeking licenses, Wauk said. Panelists discussed the clashing viewpoints of Silicon Valley and Hollywood. The central question is how quickly entertainment companies will “adapt to the new technology and give consumers the flexibility they're demanding and they're going to have, regardless,” Levine said. Wauk said much of the control that Hollywood requires in new-media distribution deals, and at which technology companies chafe, stems from obligations like union contracts dating to when “no one had any idea that clips would become interesting in and of themselves” commercially. And the TV industry is uncertain and fearful about cannibalizing its conventional business on TV sets, she said.