1H 2021 Quick Links, Part 2 (Section 230 and More)
* EFF: President Biden Revokes Unconstitutional Executive Order Retaliating Against Online Platforms
* U.S. v. $1,546,076.35 In Bank Funds Seized from Republic Bank of Arizona Account 1889, 2020 WL 8172984 (C.D. Cal. Dec. 20, 2020):
the Government sufficiently alleges that Backpage was responsible, in part, for the development of the trafficking ads that were posted on Backpage’s website. The FACMC alleges that Backpage employees, with the knowledge of certain Backpage Operators and as a matter of policy, actively worked to facilitate prostitution by concealing it from law enforcement through Backpage’s “moderation” practices. As an example of Backpage’s ad moderation, the Government alleges that in 2010, Ferrer (a co-creator and onetime CEO of Backpage) received an email from law enforcement expressing concern about ads containing the term “amber alert.” Ferrer acknowledged that the term might be “some kind of bizarre new code word for an underaged person.” He then instructed Backpage employees to remove the term “amber alert” from subsequent ads, but he did not instruct them to block the ads themselves or to report them.
As another example, the Government alleges that on October 16, 2010, a Backpage manager sent a PowerPoint presentation that displayed a series of 38 nude and partially nude photographs to a large number of Backpage employees. Some of the photographs depicted graphic sex acts. “Next to each picture was an instruction as to whether it should be approved or disapproved [for inclusion in ads] by a Backpage moderator. These instructions included ‘Approve. Nude rear shots are okay as long the model is not exposing her anus or genitalia.’ and ‘Approve. Rear shot okay. Transparent wet panties okay.” ’ The Government further alleges that on October 25, 2010, Ferrer sent an email to Padilla (Backpage’s operations manager) explaining that after “sex act pic[ture]s are removed” from ads, the “ad text may stay.” These allegations give rise to a plausible inference that Backpage, through editing and moderation of ads, willfully assisted in concealing child prostitution from law enforcement. Had Backpage done nothing, law enforcement could have monitored its site for ads using the term “amber alert” and sexually explicit images. Had Backpage deleted ads containing the term amber alert and “sex act pictures,” it would have denied sex traffickers a forum for their operations. What Backpage is accused of doing instead, however, is editing the ads with the purpose of concealing the illegal trafficking. This activity is illegal in itself, and therefore it is outside the CDA’s grant of immunity. In short, the Government alleges that Backpage was “directly involved in the alleged illegality, and thus is not immune.”…
The Court therefore finds that the Government’s allegations give rise to a plausible inference that Backpage edited the trafficking ads in a manner that contributed to their alleged illegality. Thus, under the Ninth Circuit’s decision in Roommates, Backpage is alleged to have developed in part the trafficking ads. Claimants therefore have failed to demonstrate that the Government’s claims are barred by Section 230.
* Swain v. Weinstein, 2020 WL 8575175 (S.D. Ga. Oct. 23, 2020):
Swain’s only claim against Kiwi Farms centers on its unwillingness to remove a thread of comments containing allegedly personal or defamatory information. Kiwi Farms is an online forum and plaintiff makes no suggestion that the posts in question were created by the website’s operators. As such, the Communications Decency Act (CDA) shields Kiwi Farms from liability. Under the act, “[n]o 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.” 47 U.S.C. § 230(c)(1). This effectively establishes “a general rule that providers of interactive computer services are liable only for speech that is properly attributable to them.” Plaintiff has not suggested that Kiwi Farms “is responsible, in whole or in part, for the creation or development” of the relevant posts.
* Mizrachi v. Abdullaev, 2021 U.S. Dist. LEXIS 69576 (C.D. Cal. April 9, 2021). “Plaintiffs’ only cause of action which purportedly arises under federal law is their first, which they title ‘Violations of 47 U.S.C. § 230.’ But Section 230 does not provide a private right of action—it provides a defense of immunity in certain situations.”
* Mosha v. Facebook Inc., 2021 U.S. Dist. LEXIS 12306 (SDNY Jan. 22, 2021). Facebook, Namecheap and GoDaddy win a Section 230 dismissal of a defamation claim.
* State v. Peters, 2021 WL 1957594 (Wash. Ct. App. May 10, 2021):
At trial, evidence was presented that Peters referred sex buyers to specific sex workers and agencies, scheduled appointments for sex buyers, vouched for would-be customers, and gave them detailed instructions about how to get through screening processes. Peters also advised enterprise owners with regard to specific apartment complexes to use and connected individual sex workers with bookers and agencies. In addition, Peters created and ran a website on which agencies and individual sex workers could post advertisements.
From this evidence, a reasonable finder of fact could determine that Peters knowingly advanced prostitution, regardless of his personal sex-purchasing behaviors. These acts could be determined by a rational finder of fact to advance prostitution even if Peters had never personally purchased sexual activity, and they are not immunized under the law merely because he was also a customer…..
Peters’ speech—detailed reviews meant to serve as advertisements and referrals to specific sex workers—was intended to and was likely to produce imminent violation of prostitution laws. Because Peters’ speech was both intended to produce and likely to produce unlawful activity, prosecution based on this speech does not violate the First Amendment….
an ordinary person would understand that the conduct here at issue—writing detailed reviews including booking information, recommending specific sex workers to customers, making appointments for other customers, advising new customers with regard to agency screening processes, introducing sex workers to agencies, and creating advertising and review platforms—was prohibited.
* Comcast of Maine/New Hampshire v. Mills, No. 20-1104 (1st Cir. Feb. 24, 2021):
Even if Turner I’s very broad statement (i.e., that laws that single out the media are always subject to heightened scrutiny) is not true in all instances, the state’s reasons for withholding heightened scrutiny in this case are unpersuasive, given that Chapter 308 targets cable operators but leaves similarly situated internet- and satellite-based operators untouched….
we detect no basis here for departing from the Supreme Court’s explicit statement in Turner I that laws singling out one segment of the press for “special treatment . . . are always subject to at least some degree of heightened First Amendment scrutiny.” Chapter 308 expressly treats cable operators differently from some of their direct competitors (like satellite-based Dish TV and DirectTV). Cable operators alone must adopt an á la carte system, while their competitors remain free to offer content in traditional tiers and packages. That unique treatment amounts to singling out under Turner I and triggers heightened scrutiny under the First Amendment.
* DJ Lincoln Enterprises, Inc. v. Google, LLC, 2021 WL 184527 (S.D. Fla. Jan. 19, 2021). Google deindexing a site isn’t RICO.
* Moates v. Facebook, Inc., 2021 WL 229484 (E.D. Tex. Jan. 22, 2021). Terminated Facebook user can’t establish a Sherman Act claim against Facebook.
* King v. Facebook, Inc., 2021 WL 1697038 (9th Cir. April 29, 2021). Not even close. Prior blog post.
* Hoang v. BBC (Cal. Superior Ct. Dec. 6, 2018). Section 230 applies to a freelancer blog post to the BBC’s Vietnamese Facebook page.
* Advance Tuner Warehouse v. Amazon Com, 2018 Cal. Super. LEXIS 24679 (Cal Superior Ct. April 16, 2018): Section 230 preempts claim that “Amazon knowingly allows counterfeit versions of plaintiff’s products to be sold on its website.”
* Colin Crowell, Reflections on the 25th Anniversary of the Telecommunications Act of 1996, Part III — “Section 230”