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Craigslist ruling: Why the EFF is right to be pissed

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Silicon Justice Is this the dawning of the age of the defamation take-down notice?

The Electronic Frontier Foundation seems to think so, based on its reaction to a decision last week absolving Craigslist.com from liability for discriminatory housing postings.

Huh, you might ask? The EFF's side won (gasp!), and they're still bitching? Indeed they are, but for potentially good cause.

The case involved claims by an Illinois civil rights group that Craigslist violated the Fair Housing Act by publishing housing postings expressing discriminatory preferences based on race, religion, ethnicity, etc. Craigslist argued that Section 230 of the Communications Decency Act granted them immunity from the suit, and moved to have the case dismissed. The district court - the lowest spot in the totem pole of US federal courts - granted Craigslist's motion, but did so while adopting a new, limited interpretation of Section 230's scope.

Until recently, all courts that have dealt with issues involving the liability of "interactive computer services" for information posted by others have followed an earlier case. That previous case read Section 230 as granting a broad federal immunity from liability for information posted on sites by users.

That began to change when the 7th Circuit - the middle spot on the federal court totem pole, and the appellate circuit responsible for Illinois - opined in a non-binding portion of an opinion (what we lawyers pompously call dicta) that Section 230 does not create a broad grant of immunity at all. Instead, the court argued, it only exempted sites from liability for claims that required a publication element. Thus, the sites would remain immune from suits over defamation, discriminatory housings postings or other similar claims, but would remain liable for everything else.

The district court, tipping its hat to its big appellate brother, chose to adopt this interpetation. This allowed it to dismiss the suit against Craiglist, while still advocating a narrow view of Section 230.

At first glance, this seems fairly unimportant, since all the sites in question do is publish information provided by others, and the court's interpretation would still grant them immunity for any claims arising out of that activity. When you get down to the nitty-gritty, however, this new interpretation opens up the possibility of new regulations that would establish cumbersome rules for interactive websites. Moreover, these rules would be at the state level, and sites could potentially have to deal with 50 different sets of regulations and requirements.

A broad grant of nearly absolute immunity in Section 230 prevents individual states from enacting laws protecting the interests of third-parties (eg, defamed individuals, or the subject of privacy-invading candid cameras), since any such law would conflict with the immunity and run afoul of Section 230's preemption clause. That clause prevents states from enacting any laws that are inconsistent with Section 230. Under the previous reading of the statute, a state law creating any type of liability would be inconsistent with the broad grant of immunity, thus a big no-no.

Under the district court's interpretation of Section 230, states can now require sites to filter out content, mandate take-downs of any content that a user claims is defamatory or violates the right to privacy, or do anything else that doesn't revolve around an element of publication. Liability in these cases would result from the sites' failure to protect the rights of others before or after publication, and not from the actual publication itself.

If this seems highly technical and confusing, that's because it is. To condense: the court here has gone against the weight of precedent in order to reduce the freedoms that websites currently enjoy under Section 230. Now do you see why the EFF is so pissed?

The EFF may be crying wolf here, though. As we mentioned, this decision goes against the precedent of four appellate circuits, which makes it essentially worthless standing on its own. It's unlikely that this single decision will dramatically alter the internet liability landscape.

Where it might get tricky is with the plaintiffs' appeal to the 7th Circuit. If that court chooses to affirm the dicta in its earlier case, it would create a conflict between the circuits, which would open up the possibility of a review by the Supreme Court.

And at that point, it's anything goes, folks. ®

Kevin Fayle is an attorney, web editor and writer in San Francisco. He keeps a close eye on IP and International Law issues.

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