Comments on: ‘Worst of Both Worlds’ FOSTA Signed Into Law, Completing Section 230’s Evisceration

By: Wisconsin Appeals Court Blows Open Big Holes in Section 230–Daniel v. Armslist – Technology & Marketing Law Blog

Wed, 25 Apr 2018 18:23:14 +0000

[…] Congress eviscerated Section 230 via the Worst of Both World FOSTA, but defendants have been doing well with Section 230 defenses over the past year-plus. Then, last week, a Wisconsin appeals court issued a published opinion that massively screws up Section 230 jurisprudence. I don’t know if the timing is a coincidence or a signal of broader common law retrenchment of Section 230 post-FOSTA. Either way, it’s very troubling. […]

By: More Aftermath from the ‘Worst of Both Worlds FOSTA’ – Technology & Marketing Law Blog

Mon, 23 Apr 2018 17:53:02 +0000

[…] my prior post on the Worst of Both Worlds FOSTA, I enumerated three problematic developments that occurred before the bill was […]

By: First Amendment roundup - Overlawyered

First Amendment roundup - Overlawyered — Fri, 20 Apr 2018 10:30:05 +0000

[…] of Both Worlds’ FOSTA Signed Into Law, Completing Section 230’s Evisceration” [Eric Goldman] Among first casualties: Craigslist personals [NPR, Elizabeth Nolan Brown] And Elizabeth Nolan […]

By: Ralph Haygood

Ralph Haygood — Fri, 13 Apr 2018 14:33:00 +0000

“Internet startups now face higher entry costs and a greater risk of personal prosecution, and that will deter new entrepreneurs and new entrants.”: It further deters me. I’d already concluded I shouldn’t launch a public-facing web company in the USA due to the patent troll plague, which is still raging despite a series of incrementally helpful Supreme Court rulings. This latest foolishness strengthens the case against doing so. Other countries have their problems, including murky laws and precedents about the kinds of liability against which Section 230 has shielded American companies, but given it’s practically certain I’d be attacked by patent trolls here, and now this hollowing out of Section 230 on top of that, I’ll take my chances elsewhere.

By: Fight Online Sex Trafficking Act (FOSTA) | Patently-O

Fight Online Sex Trafficking Act (FOSTA) | Patently-O — Thu, 12 Apr 2018 16:38:16 +0000

[…] Professor Goldman calls the law, “The Worst of Both Worlds.” […]

By: David S. Gingras

David S. Gingras — Thu, 12 Apr 2018 16:03:00 +0000

There is no question that the recent changes to the CDA suck. First and foremost — the changes to the law (as Eric notes) weren’t really needed — Backpage could be (and has been) held to fall outside the scope of Section 230 based purely on the facts. If the old version of Section 230 was sufficient to exclude Backpage from protection, then why was any change to the law needed? Clearly, it was not.

But I don’t agree that the sky is falling (yet).

As proof, just look back 10 years and remember what happened with Roommates — the 9th Circuit said some of the defendant’s website wasn’t protected by Section 230. Yikes! This seemed like certain doom for website owners. Based on Kozinski’s crappy 2008 ruling, plaintiffs-side lawyers across the country high-fived each other and popped the champagne — “Roommates is the savior that plaintiffs everywhere have been waiting for! Ha ha!”, they said.

Except it wasn’t.

In the end, the 2008 Roommates decision did very little to help opponents of Section 230. On the contrary, in a 2012 ruling that no one seems to remember or give credit to, the defendant WON, even without the help of Section 230. See Fair Housing Council v. Roommate.com, LLC, 666 F.3d 1216 (9th Cir. 2012) http://cdn.ca9.uscourts.gov/datastore/opinions/2012/02/02/09-55272.pdf

It’s still early, but my guess is that the fallout from FOSTA will be similar to what happened with Roommates. Yes, we’re going to see a few more lawsuits against website owners, and yes, that’s going to cause some minor financial pain for a while. But in the end, as Roommates proved, even without Section 230 a plaintiff is not guaranteed victory. You still need solid facts proving that the defendant broke some law, and that the plaintiff was harmed as a result. That’s not as easy as it sounds.

Honestly, despite a short-term spike in popularity, “sex trafficking” just isn’t something that is going to produce many new lawsuits. I admit I am not an expert on this point, but I just can’t see that many *real* “victims” of sex trafficking coming forward with proof that a website owner somehow KNOWINGLY caused them harm. Instead, I think the vast majority of cases will involve website owners who have never heard of the plaintiff, had no idea the plaintiff as a “victim”, and did not do anything more than simply “allow” the plaintiff to post an ad online. I don’t think most sensible juries are going to say that’s sufficient to impose massive liability on the website owner, especially if the law requires showing that the defendant KNOWINGLY caused harm to the plaintiff.

Bottom line — Section 230 is a great and valuable tool, but we shouldn’t forget that it’s not the only way to win, and it’s often not even necessary. The defendant in Roommates won without Section 230. I’m guessing that will continue to happen, even in a post-FOSTA world.