Craiglist discriminatory housing suit dismissed: CDA to the rescue!

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Back in February, the Chicago Lawyers Committee for Civil Rights Under Law (CLC) dismissed. Amusingly, the law under which the law was dismissed was the Communications Decency Act, which was widely despised by net libertarians. The relevant section here is the safe harbor provision of Section 230: (c) Protection for "Good Samaritan" blocking and screening of offensive material
(1) Treatment of publisher or speaker

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.

(2) Civil liability No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

The ruling makes interesting reading. As I understand the issues (IANAL, etc.), the safe harbor provision is a grant of immunity from civil action under some conditions, which are disputed. There seem to be two views:

  • This is a broad grant of immunity from civil suit if you don't source the content. See the 4th Circuit decision in Zeran v. America Online, which addresses but doesn't displose of the issue.
  • This is a narrow grant of immunity for things you do when you do some filtering.

This section clearly isn't very well written and S 1 seems to conflict with 2(A) and 2(B).) Even in Zeran, the court recognizes that something is messy here in that Congress clearly wanted to encourage filtering but that the blanket immunity grant would discourage it (always easier to do nothing). This ruling appears to endorse the second theory but dismisses the CLC lawsuit on the grounds that the FHA creates liability for publishers and that S 1 clearly indicates that Craiglist shouldn't be treated as a publisher since they just distributed third party material. This seems like the right outcome but also to leave open the possibility that Craigslist would be liable under some theory that didn't require them to be a "publisher".

This issue, like the issues of pornography, falls into the generic question of the status of sites which are basically caches for third-party content. People are used to thinking of Web sites as something like books or newspapers that's actually produced by the operator 1. But that intuition doesn't apply to sites like Craigslist or YouTube, which are just a big Web server (or servers) attached to a data store and a fat pipe. The only reason it's possible to run sites like that is that no actual manpower is required to manage each individual piece of content. Any rule which creates significant affirmative duties on the operator which scale with the number of items posted is likely to make the cost of running such a site prohibitive.

1. Though if you have any familiarity with book publishing you know that the publisher only has a modest amount of contact with the actual content.

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It's interesting and perhaps somewhat non-obvious that we would have sites like MySpace, Craigslist, Youtube, eBay and others that mostly just aggregate user content. You could imagine a decentralized system (with appropriate caches) that accomplished the same thing. People could publish content on their own computers, or maybe on ones provided by their ISPs, and some kind of P2P system with integrated search engine could find and display the same kind of information that all those sites above display. I wonder if the reasons we don't have this is more due to business or technical considerations.

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