Topic: Legal

Legal side of Reputation Management

Narrow Definition of “Personally Identifiable Information” Kills VPPA Case–Eichenberger v. ESPN 0

Screen Shot 2017-12-13 at 8.56.07 AMThis is a Video Privacy Protection Act case. Plaintiff downloaded the WatchESPN channel on his Roku device and used it to watch videos. When he watched a video, ESPN disclosed the plaintiff’s device serial number and video title to Adobe Analytics. Plaintiff alleged that Adobe used the information to “identify specific consumers” by connecting the data shared with existing data in Adobe’s database. Adobe obtained the information in its database (used to identify consumers) from sources other than ESPN. Adobe gives the data it derives back to ESPN in an aggregated form, and ESPN “in turn provides advertisers with aggregate information about its users’ demographics.”

Plaintiff alleged Adobe used the data ESPN provided to identify him as having watched specific videos. He asserted that ESPN’s disclosure violated his rights under the VPPA. The district court dismissed, and the Ninth Circuit affirmed.

Standing: The Ninth Circuit first tackles standing under Spokeo and has no trouble concluding that plaintiff satisfies Article III standing. Spokeo dealt with “bare procedural violations” and held that in some circumstances, these violations could be sufficient to satisfy standing. However, plaintiff alleged the violation of a restriction on disclosure, and unlike a procedural rule, every violation of this restriction “offends the interests that the statute protects.” The court also cites to Congressional judgment as supporting this interpretation. The statute was intended to give consumers greater control over their personal information. Similarly, privacy torts don’t require actual harm (beyond the disclosure) to be legally sufficient. Finally, the court looks to the VPPA’s history and says that the disclosure of Judge Bork’s viewing records were not themselves harmful (they were “decidedly commonplace”). Under ESPN’s interpretation–that he needed to have been “aggrieved” beyond the disclosure–the VPPA would not have even provided him with recourse.

“Personally Identifiable Information”: The court says “personally identifiable information” extends beyond actual viewing or rental records, and covers some information that “can be used” to identify an individual. But it’s unclear precisely what the definition encompasses. The key question is whether the statute embodies a purely subjective or a foreseeability-type standard. Some courts have said that if information would be reasonably likely to reveal a person’s identity, then it’s personally identifiable information (Yershov). Others have looked to the perspective of the disclosing party (Nickelodeon), and the Ninth Circuit adheres to this view:

the statute views disclosure from the perspective of the disclosing party. It looks to what information a video service provider discloses, not what the recipient of that information decides to do with it.

The court follows the Third Circuit and adopts a subjective, “ordinary person” test.

The court says this interpretation “fits most neatly” with the regime Congress must have had in mind in 1988. In that time, a video store clerk would know:  if he or she disclosed someone’s name and viewing history that they were violating the statute. But if they merely described the person in more generic terms, there would be no violation. The court says the Roku device serial number is more like the latter scenario: “It created a sizeable ‘pool’ of possible viewers . . . ” The court notes that technological changes have undoubtedly altered the ability of companies to derive identity information using data but

the advent of the internet did not change the disclosing-party focus of the statute.

__

It would be really interesting to see data on how the numerous VPPA class actions have panned out. There have been many!

The court’s test, like many other Ninth Circuit tests, leaves you with a lot of questions. The court says that some information beyond conventional identity information still constitutes personally identifiable information, but it never provides any meaningful examples. Nor does it provide any scenario in which disclosure of this other category of information that can be used to derive identity would trigger the statute.

As to the subjective test, does this mean that the disclosing party has to know that the recipient can use the information to de-identify? Would contractual assurances from the receiving party help insulate the disclosing party’s conduct? The court’s concerns about liability being imposed by something outside of the disclosing party’s control resonate, but the test it articulates seems to leave a lot of room for workarounds. And ultimately, perhaps the court’s decision is driven by the fact that there’s no human reviewing the de-identified records, and it all occurs as part of a large-scale data transaction between companies.

The court describes what looks like a mild circuit split. I wonder if there’s any chance the Supreme Court could take up a case presenting this question?

Eric’s Comments

1) We’ve occasionally blogged on privacy concerns about analytics services (e.g., Garcia v. Zimride). This case raised the issue squarely, and it worked out for the defendants this time. However, if you are running an analytics service, you’re probably increasingly nervous about the wide range of potential privacy risks you face. And if you are a publisher using an analytics service, this case highlights the potential exposure you might face from your analytics provider’s activities.

2) The court’s approach to reidentification is interesting: the disclosing publisher isn’t responsible for an analytics service’s potential or actual reidentification unless the publisher discloses information that readily permits an “ordinary person” to identify a particular individual as having watched certain videos. This is a defendant-favorable definition of reidentification, and it will be interesting to see if courts similarly do not hold publishers accountable for the reidentification capacities of third parties in non-VPPA contexts.

Case citation: Eichenberger v. ESPN, Inc., 2017 WL 5762817 (9th Cir. Nov. 29, 2017)

Related news:

Netflix recently tweeted the following and predictably came under fire for it:

Related posts:

VPPA Still Doesn’t Protect App Downloaders–Perry v. CNN

Important and Troubling Video Privacy Protection Act (VPPA) Ruling From First Circuit–Yershov v. Gannett

App Users Aren’t “Subscribers” Under the VPPA–Ellis v. Cartoon Network

9th Circuit Rejects VPPA Claims Against Netflix For Intra-Household Disclosures

Court Rejects VPPA Claim Against Viacom and Google Based on Failure to Disclose Identity

Court Says Plaintiff Lacks Standing to Pursue Failure-to-Purge Claim Under the VPPA – Sterk v. Best Buy

Judge Dismisses Claims Against Pandora for Violating Michigan’s Version of the VPPA – Deacon v. Pandora Media

Disney Not Liable For Disclosing Device IDs And Viewing Habits

Ninth Circuit Rejects Video Privacy Protection Act Claims Against Sony

AARP Defeats Lawsuit for Sharing Information With Facebook and Adobe

Lawsuit Fails Over Ridesharing Service’s Disclosures To Its Analytics Service–Garcia v. Zimride

Android ID Isn’t Personally Identifiable Information Under the Video Privacy Protection Act

Minors’ Privacy Claims Against Viacom and Google Over Disclosure of Video Viewing Habits Dismissed

Hulu Unable to Shake Video Privacy Protection Act Claims


Source: Eric Goldman Legal

Facebook Defeats Lawsuit Over Tracking Logged-Out Users–In re Facebook Internet Tracking 0

Screen Shot 2017-12-12 at 7.18.12 AMFacebook allegedly improperly tracked the activity of logged-out Facebook users on third party websites. Plaintiffs asserted claims based on common law rights and based on federal and state statutes, but the court previously rejected those. In the latest ruling, the court dismisses Plaintiffs’ claims based on breach of contract and breach of the duty of good faith.

Plaintiffs argued that Facebook promised not to track logged out users, but these promises were contained in documents other than Facebook’s terms of service (its “Statement of Rights and Responsibilities”).

Plaintiffs cited to language from Facebook’s “data use policy” stating that Facebook receives data from the websites that users visit, including “if [a user is] logged into Facebook” the user ID. The key question was whether this language was incorporated by reference into the terms of use. The court says no, because the version of the privacy policy plaintiffs point to was not in existence at the time of the relevant versions of the terms of use plaintiffs allegedly relied on. In fact, Facebook changed the title of its privacy policy to a “data use policy,” and the terms of service plaintiffs relied on did not reference a “data use policy” at all.

Plaintiffs also pointed to certain “help center pages” but the court says none of those are referenced in the privacy policy. Even to the extent the terms incorporate the privacy policy, this doesn’t help plaintiffs. Plaintiffs in response argued that all of the various help center pages are part of a “single broader document” but the court says this argument has no factual basis. The various pages have different URLs and were attached by plaintiffs as different exhibits. Moreover:

[n]o evidence suggests that a Facebook user who reads one Help Center page has also read, or is even aware of, any of the others.

Plaintiffs also relied on a breach of the duty of good faith but the court says that this duty has to be anchored to a specific contractual provision and plaintiffs cannot point to one here.

__

Ouch. As the court notes, this lawsuit has been through several rounds of motion practice. It was whittled down until it was extinguished by the most recent order. Plaintiffs have yet to file a notice of appeal, although their appeal deadline has not yet run.

That websites have not given consumers meaningful choice on being tracked while logged out is one of the great failures of modern U.S. privacy laws. This seems like a basic privacy practice that a website should make obvious to a user and allow the user to opt-out from. Yet, as this case illustrates, no rule exists to force websites to do this.

Facebook’s terms of service and related documents are voluminous, and the court appears to employ a fairly technical reading in determining whether certain help page documents form a part of the contract. You should not need to be a lawyer to figure this stuff out.

Facebook is under a 20 year consent decree with the FTC. Perhaps this activity does not come under the scope of the consent decree, because it doesn’t involve any affirmative misrepresentations or over-riding of expressed consumer preferences? Either way, this seems like the type of thing a regulator may be well suited (or perhaps better suited than the plaintiffs’ bar) to address, and which may be falling through the cracks.

Case citation: In re Facebook Internet Tracking Litig., 2017 U.S. Dist. LEXIS 190819 (N.D. Cal. Nov. 17, 2017) [pdf]

Related posts:

Facebook Scores Initial Win Against Privacy Plaintiffs Over Data Leakage Claims — In re Facebook Privacy Litigation

Facebook Privacy Class Action Filed by Lanier Firm Voluntarily Dismissed — Melkonian v. Facebook

Facebook Gets Bad Ruling In Face-Scanning Privacy Case–In re Facebook Biometric Information Privacy Litigation

Facebook Beats Privacy Lawsuit Alleging Persistent Tracking

The “I Didn’t Understand Facebook’s Privacy Settings” Argument Isn’t Persuasive to Judges–Sumien v. CareFlite

Facebook and Zynga Privacy Litigation Dismissed With Prejudice [Catch up Post]


Source: Eric Goldman Legal

New House Bill (Substitute FOSTA) Has More Promising Approach to Regulating Online Sex Trafficking 0

drudge sirenTomorrow, the House Judiciary Committee will markup the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (abbreviated to “FOSTA”). It appears a new substitute version of FOSTA will be marked up, not the bill as introduced. This makes a total of four bill versions: SESTA as introduced, SESTA as amended, FOSTA as introduced, and the new substitute FOSTA. This post recaps this complicated situation.

While I continue to believe that none of the bills are good policy, the substitute FOSTA version is better than SESTA as amended and FOSTA as introduced. Thus, compared to the existing options, I prefer substitute FOSTA. However, it needs some changes that I discuss below.

[Note: a few weeks ago, I testified at the House Energy & Commerce Committee against FOSTA as introduced. I didn’t get a chance to post my testimony here, so I encourage you to check it out as part of reviewing this post.]

Overview of the Substitute FOSTA

The substitute FOSTA has the following main provisions:

  • declarations that Section 230 wasn’t designed to facilitate online prostitution, and sites have been reckless about their impacts on sex trafficking victims.
  • a new crime, 18 USC 2421A, for intentionally promoting or facilitating prostitution.
  • criminal enhancements to 2421A if the defendant (1) promotes or facilitates the prostitution of 5+ victims, or (2) “acts in reckless disregard of the fact that such conduct contributed to sex trafficking in violation of” the federal anti-sex trafficking statute, 18 USC 1591(a).
  • a civil claim for violations of the 2421A enhancements.
  • mandatory restitution for criminal violations.
  • a Section 230 exclusion for state criminal laws that govern behavior that violates 2421A or 1591(a).

Comparing the Substitute FOSTA With SESTA as Amended and FOSTA as Introduced

Intent Standard for Criminality. Opponents of FOSTA/SESTA have regularly objected to online service liability for knowledge or recklessness towards third party content. These scienter standards set up a moderator’s dilemma: if services are liable for what they know about third party content, they may rationally choose to do less policing work as a way of reducing liability-creating knowledge. In contrast, the substitute FOSTA requires intent to promote or facilitate illegal activity (prostitution), which avoids the moderator’s dilemma.

Shifted Emphasis to Online Prostitution. Substitute FOSTA regulates online prostitution, a larger category of activity than sex trafficking, which is defined as compelled or underage prostitution. Prostitution is generally illegal in the US (and the bill contains a safe harbor for the limited circumstances where it’s legal), so the bill “narrowly” criminalizes the defendant’s intent to promote or facilitate illegal activity. However, because prostitution generates so much activity online, this law potentially affects the entire Internet community, including all “legitimate” online services.

Reduced Civil Exposure. Substitute FOSTA creates a new civil claim when a defendant intended to promote or facilitate prostitution AND either (a) involved 5+ victims, or (b) reckless disregarded how its conduct violated the federal anti-sex trafficking statute 1591(a). The civil claim remains subject to Section 230, and the draft has this unusual provision:

Consistent with section 230 of the Communications Act of 1934 (47 8 U.S.C. 230), a defendant may be held liable, under this subsection, where promotion or facilitation of prostitution activity includes responsibility for the creation or development of all or part of the information or content provided through any interactive computer service.

This language reinforces Section 230’s existing statutory definitions of “information content provider,” which says that a party is an information content provider for any content they create or develop in whole or in part. (I just did a lengthy blog post about the develop-in-part language). All of this is confusing because I’m not sure how the intent requirement intersects with Section 230, i.e., if the defendant has the requisite intent, isn’t that first-party liability? I’ll revisit this odd provision shortly.

National Standards. FOSTA and SESTA as introduced allowed for state law variations of online service regulation without any Section 230 limits. In particular, FOSTA as introduced would have authorized an infinite number of existing and new state crimes that could vary widely across jurisdictions. Substitute FOSTA bases liability only on the federal crime standards, creating a uniform national minimum standard for liability. (States could still pass idiosyncratic laws that add extra elements, but that would make things harder for law enforcement).

How the Substitute FOSTA Could Be Improved

Thus, there are several reasons to prefer substitute FOSTA over the alternatives: its scienter standard avoids the moderator’s dilemma, it sets a single national standard of liability rather than allowing for state law variations, and it directly links any civil liability to the federal crime. Substitute FOSTA can be further improved with these changes:

The 5+ Prostitutes Standard. The enhancement for 5+ prostitutes seems to collapse the lower crime with the enhancement. Any online service that publishes third party prostitution ads necessarily “promotes or facilitates the prostitution of 5 or more persons.” Once the threshold “intent” is established, online service defendants will routinely satisfy the enhancement.

This creates avoidable risk of authorizing dubious investigations. Consider how this could play out for giants like Google or Facebook. Despite their best efforts, surely both networks have some online prostitution activity. Let’s hypothesize that 0.01% of their site usage relates to online prostitution. Across a billion-member userbase, a 0.01% online prostitution usage converts to 100,000 users. So even if Google and Facebook get it 99.99% right, state and local prosecutors could still point to tens of thousands of online prostitution incidents as circumstantial evidence of the services’ “intent” to promote or facilitate online prostitution. And the statutory baseline of 5+ prostitutes frames the issue to make the online giants look like hotbeds of prostitution activity. So even if a prosecutor’s case will fail in court, substitute FOSTA would give state and local prosecutors a lot of juice to go after the Internet giants.

We can’t easily eliminate the risk of bogus state and local investigations due to substitute FOSTA, but we can blunt the 5+ language. Something like “promotes or facilitates the prostitution of 5 or more persons HIMSELF OR HERSELF (NOT CONSIDERING THE ACTS OR CONTENT OF ANY THIRD PARTIES).” This change would not treat third party promotions as part of the enhancement, and it would take some wind out of the sails of overeager prosecutors who can find many more than 5+ ads on a site.

I’d welcome other thoughts about how we might curb overzealous state and local investigations.

Section 230 Discussion. As mentioned, the civil claim says:

Consistent with section 230 of the Communications Act of 1934 (47 U.S.C. 230), a defendant may be held liable, under this subsection, where promotion or facilitation of prostitution activity includes responsibility for the creation or development of all or part of the information or content provided through any interactive computer service.

This language is more like a statement of intent than compulsory language. At minimum, it should be removed from the bill and put into legislative history.

As drafted, it seems to say that if an online service is responsible for ANY content on its site, it is responsible for ALL content, including all third party content. I don’t think that’s what was intended; and it’s certainly far beyond the law today. The Roommates.com case is quite clear that responsibility for third party content attaches only when the defendant creates or develops what made the content illegal. Thus, I would rephrase this:

A defendant may be held liable, under this subsection, WHEN THE DEFENDANT PROMOTES OR FACILITATES prostitution activity BY CREATING OR DEVELOPING all or part of WHAT MAKES the information or content provided through ITS interactive computer service ILLEGAL.

No Monitoring Obligation. To address the moderator’s dilemma in SESTA, I proposed a new Section 230 addition that emphasizes defendants wouldn’t be punished for trying to police anti-social content. Substitute FOSTA bypasses the moderator’s dilemma, so that provision is less urgent. However, reinforcing that monitoring and filtering is good, not bad, would still help with assertions of intent based on circumstantial evidence. So I reiterate my proposal for a new Section 230(g):

The fact that a provider or user of an interactive computer service has undertaken any efforts (including monitoring and filtering) to identify, restrict access to, or remove, material it considers objectionable shall not be considered in determining its liability for any material that it has not removed or restricted access to.

How Do I Feel About Substitute FOSTA? I continue to believe that Congress does not need to pass any bill: the SAVE Act did the work Congress wanted it to do; the Rentboy and MyRedbook prosecutions show the DOJ has effective legal tools (recall that both involved a prosecution for online prostitution, not sex trafficking, so they cover very similar ground to substitute FOSTA); Congress has other anti-sex trafficking initiatives in queue that may be more helpful; and it’s not empirically clear that efforts to extinguish online prostitution ads will protect victims. So here’s how I’d rank my priorities:

1) best outcome: no legislative changes.

2) second-best outcome (a distant second): substitute FOSTA due to the intent scienter, national legal standard and tight linkage between civil and state law enforcement claims and the federal crime.

3) third-best outcome (substantially behind substitute FOSTA): SESTA as amended, which fixed some of SESTA’s roughest edges but still retained its core imposition of the moderator’s dilemma.

4) fourth-best outcome: FOSTA as introduced. That version is probably already defunct. At least, I hope so.

What Happens Next

Will the Substitute FOSTA Pass the House? At the House E&C hearing, Rep. Wagner didn’t discuss the substitute and mostly spoke against SESTA as amended. This left me unclear where she stands regarding the substitute. However, I have received many indications that Rep. Wagner backs the substitute. As a result, I believe substitute FOSTA supplants FOSTA as introduced–bringing along the 170+ current co-sponsors of the bill.

Most Internet companies will prefer substitute FOSTA over other options. I expect tech advocacy groups will publicly line up behind substitute FOSTA.

However, “tech” support for substitute FOSTA will not be uniform. First, the Internet Association already endorsed SESTA as amended, so they are effectively blocked from embracing substitute FOSTA. Second, some so-called “tech” companies came out in favor of SESTA, and they may continue to support it, especially to score more brownie points with the sponsoring senators. For example, check out this tweet from IBM from Thursday (before substitute FOSTA got publicly posted):

ibm tweet

[It says :”IBM remains a strong supporter of . Our view: “ substitute bill” does not go nearly far enough to hold accountable those who enable criminal activity. We urge the House to adopt & quickly pass the Senate’s bill. “] I’m sure IBM did this tweet totally on its own initiative, without any prompting from Sen. Portman’s office, and based on its vast expertise in managing content online.

Victims groups may prefer SESTA as amended over substitute FOSTA. At minimum, the “I Am Jane Doe” crowd is on SESTA’s side and against substitute FOSTA (the Twitter chatter over the past few days isn’t voluminous, but it is revealing). At the House E&C Committee hearing, Rep. Blackburn supported FOSTA as introduced, and I’m not sure how she’ll feel about the substitute or if/when the House E&C committee will do its own markup.

So here’s how things look: if Reps. Goodlatte and Wagner are united, even if uneasily, and the Internet community favors or doesn’t oppose substitute FOSTA, there’s a significant chance that substitute FOSTA will pass the House (perhaps with some amendments).

House/Senate Conflicts. SESTA has 52 co-sponsors plus the support of the Internet Association; plus some victim advocacy groups will support SESTA 100%. The main thing slowing down SESTA is Sen. Wyden’s hold on the bill.

Sen. Wyden has softer words for substitute FOSTA over SESTA. On Friday, he said: “This is a smarter, more effective approach to go after criminal sex traffickers and prevent these heinous crimes. I’ve pushed to build on my record of giving law enforcement effective tools to put criminals behind bars, without undermining the foundations of the Internet.” In theory, he could place a hold on substitute FOSTA, but more likely he’ll use his SESTA hold to prioritize the Senate’s consideration of substitute FOSTA.

If SESTA passes the Senate (over Wyden’s hold) and substitute FOSTA passes the House, what happens then? One chamber could acquiesce to the other, the bills could be reconciled in conference (not an easy task, and goofy things could happen there), or there’s a very remote chance of paralysis that results in no bill passing Congress.

Post-Congressional Enactment. SESTA/FOSTA will not be Congress’ last review of Section 230. Congress already addressed online sex trafficking in the 2015 SAVE Act and has revisited the topic a scant 2 years later. Surely the advocates will be back a third time and more. So whatever “wins” the Internet community secures in the SESTA/FOSTA text may be short-lived.

Meanwhile, other victims advocacy groups will be targeting Section 230. We’ve repeatedly identified the terrorist victim group as the next logical advocates. The substitute FOSTA draft, with its high scienter bar, restricted civil claims, and national legal standard, will provide a better starting point for the inevitable clone-and-revise discussions.

Other Comments on Substitute FOSTA

CDT
EFF
NetChoice
R Street Institute
Techdirt
TechFreedom

More SESTA-Related Posts:

* My testimony at the House Energy & Commerce Committee: Balancing Section 230 and Anti-Sex Trafficking Initiatives
How SESTA Undermines Section 230’s Good Samaritan Provisions
Manager’s Amendment for SESTA Slightly Improves a Still-Terrible Bill
Another Human Trafficking Expert Raises Concerns About SESTA (Guest Blog Post)
Another SESTA Linkwrap (Week of October 30)
Recent SESTA Developments (A Linkwrap)
Section 230’s Applicability to ‘Inconsistent’ State Laws (Guest Blog Post)
An Overview of Congress’ Pending Legislation on Sex Trafficking (Guest Blog Post)
The DOJ’s Busts of MyRedbook & Rentboy Show How Backpage Might Be Prosecuted (Guest Blog Post)
Problems With SESTA’s Retroactivity Provision (Guest Blog Post)
My Senate Testimony on SESTA + SESTA Hearing Linkwrap
Debunking Some Myths About Section 230 and Sex Trafficking (Guest Blog Post)
Congress Is About To Ruin Its Online Free Speech Masterpiece (Cross-Post)
Backpage Executives Must Face Money Laundering Charges Despite Section 230–People v. Ferrer
How Section 230 Helps Sex Trafficking Victims (and SESTA Would Hurt Them) (guest blog post)
Sen. Portman Says SESTA Doesn’t Affect the Good Samaritan Defense. He’s Wrong
Senate’s “Stop Enabling Sex Traffickers Act of 2017”–and Section 230’s Imminent Evisceration
The “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” Bill Would Be Bad News for Section 230
WARNING: Draft “No Immunity for Sex Traffickers Online Act” Bill Poses Major Threat to Section 230
The Implications of Excluding State Crimes from 47 U.S.C. § 230’s Immunity

Fourth Judge Says Social Media Sites Aren’t Liable for Supporting Terrorists–Pennie v. Twitter 0

[It’s impossible to blog about Section 230 without reminding you that it remains highly imperiled.]

This is one of the multitudinous 1-800-LAW-FIRM lawsuits against social media services for allegedly providing material support to terrorists. It has filed at least two new cases in the last few days. This particular case involves a 2016 shooting of five Dallas police officers by Micah Johnson, who allegedly was radicalized by online content from the terrorist group Hamas.

Three prior courts have rejected the suits, principally on Section 230 grounds but also with causation concerns. See Fields v. Twitter, Cohen v. Facebook, and Gonzalez v. Facebook. Like the others, the court dismisses the claims.

Lack of Causation

Of the four rulings, this opinion is probably the clearest and most emphatic about the lack of causation. The court says: “Plaintiffs do not meaningfully allege that Hamas itself carried out the attack, or even that it intended for such an attack to occur.” Instead, the complaint tries to bridge the gap by describing “contacts between African American and Palestinian organizations with no apparent relevance to this case.” Thus, the court summarizes, “Plaintiffs seek to [impose] liability for an attack by a person who had engaged on social media with groups that arguably shared an ideological affiliation with groups that received expressions of solidarity from groups that shared an ideological affiliation with a designated foreign terrorist organization to which Defendants provided support.” (Read that sentence a few times and you might conclude the judge meant to be a little tart).

This attenuation is too much for the judge:

The complaint here does not plausibly allege that Hamas “committed, planned, or authorized” the Dallas attack, or that it was “the person who committed” the attack, within any reasonable interpretation of those terms in 18 U.S.C. § 2333(d)….Without some meaningful connection between Hamas and the attack, Defendants ‘ alleged provision of support to Hamas does not meet even Plaintiffs‘ test of proximate cause: absent plausible allegations that Hamas itself was in some way a “substantial factor” in the attack, there is no basis to conclude that any support provided by Defendants to Hamas was a substantial factor.

Section 230

The court says: “the CDA immunizes Defendants from most if not all of Plaintiffs‘ claims, because Plaintiffs‘ theory of liability rests largely on the premise that Defendants should be held responsible for content created and posted by users (here, Hamas and its affiliates) of Defendants‘ interactive computer services.” The court breaks down some detail:

  • The court says the later-enacted federal anti-terrorism statute (JASTA) doesn’t trump or repeal Section 230.
  • The complaint alleged that it wasn’t basing its claims on Hamas’ content but instead on the defendants “allowing Hamas to use their services at all.” The court rightly calls BS on this: “Plaintiffs explicitly base their claims on the content that Hamas allegedly posts, because absent offending content, there would be no basis for even the frivolous causal connection that Plaintiffs have alleged between Defendants‘ services and the Dallas attack”
  • The complaint argued that the social media services should be liable for removing an account and then having the accountholder create a new account. The court rejects this based on Section 230(c)(2) and a cite to Roommates.com that defendants may edit some content without becoming liable for all content. This is the right result, but the judge doesn’t really walk through Section 230(c)(2)’s applicability in detail.
  • Ad targeting doesn’t constitute content development in part.

The assertion that YouTube shares its ad revenue gives the court some pause. The court says “whether, or under what circumstances, the CDA immunizes payments made by interactive service providers to content developers appears to be a novel issue.” Google cited Blumenthal v. Drudge, in which Section 230 applied even though AOL paid Matt Drudge for allegedly defamatory content, but the court distinguishes Blumenthal because it “does not address the question of whether the CDA immunizes payments that otherwise could themselves give rise to liability.” In other words, the legal question isn’t paying for illegal content; it’s the legality of putting any money into these specific pockets. As the court says, “Providing money to Matt Drudge generally is legal; providing money to Hamas generally is not.” Thus, “the Court declines to resolve the question of if or how the CDA applies where an interactive service provider shares advertising revenue with a content developer that has been designated as a foreign terrorist organization.” The court instead rests its dismissal of this point on lack of causation. We can expect the plaintiff’s counsel will revisit this point in its other cases.

What’s Next?

Some predictions:

  • 1-800-LAW-FIRM will keep filing new lawsuits despite its poor track record in court and its loss here.
  • In future cases, it will zero in on social media services’ payments to terrorists. This argument doesn’t help against Twitter or Facebook, but it might give a Section 230 bypass in YouTube’s case. However, I wonder if the plaintiffs can show that YouTube “knew” the accounts were held by terrorists who could not receive payment, and how many such accounts actually got any payments.
  • Other “material support for illegal activity” claims will be litigated in parallel, such as the Dyroff v. Experience Project case involving the online sale of illegal drugs. That ruling cited heavily to the existing “material support to terrorist” opinions, and favorable ruling in the non-terrorist cases will make it even harder for the plaintiffs to win the anti-terrorism cases.
  • Once SESTA (or one of the rival versions) passes, anti-terrorist groups will be asking Congress for a new exclusion to Section 230. While SESTA is a major concern to the online community, a follow-on Section 230 exclusion related to terrorist groups absolutely would be an existential battle over the Internet.

Last week, the Ninth Circuit heard oral arguments in the Fields v. Twitter case. I haven’t heard much about the hearing. Obviously, the Ninth Circuit’s decision has important implications for this entire line of cases.

Case citation: Pennie v. Twitter, Inc., 2017 WL 5992143 (N.D. Cal. Dec. 4, 2017). The complaint.


Source: Eric Goldman Legal

Mugshot Websites: How They Work, And How You Can Protect Yourself From a Career-Ending Embarrassment 0

Introduction After serving time for retail theft, Peter Gabiola had tried hard to turn over a new leaf. He finished a stint on parole and found a job. But a searing story in the Chicago Tribune shows how hard it can be to outrun the past, especially when that past is posted online. On the […]

The post Mugshot Websites: How They Work, And How You Can Protect Yourself From a Career-Ending Embarrassment appeared first on Defamation Removal Law.


Source: Aaron Minc