Chicago Lawyers� Committee for Civil Rights Under Law Inc. v. craigslist Inc.

THE FACTS
The issue: How broad and deep is the Section 230 safe harbor protecting interactive computer services from liability for third-party postings? More specifically, is the safe harbor available only in those cases where publishing is an element of the cause of action?

The parties: The Chicago Lawyers� Committee for Civil Rights Under Law is a consortium of 45 law firms that promote civil rights. craigslist Inc. is the Internet provider that hosts an estimated 2 million new classified housing ads per month.

District court ruling: The Section 230 safe harbor applies only where publishing is an element of the cause of action; craigslist is within the safe harbor because the Fair Housing Act's prohibition against discriminatory housing ads has publishing as an element.

OVERVIEW

This case pits civil rights against a robust debate on the Web. But the legal issues are more important to the future of business and debate on the Internet than to the future of civil rights. The contours of the Section 230 safe harbor affect Internet providers in all sorts of cases, not just civil rights suits.

For a decade, federal appeals courts have broadly construed the breadth and depth of the Section 230 safe harbor from liability that interactive computer service providers enjoy under the Communications Decency Act of 1996. The decision in this case by U.S. District Judge Amy J. St. Eve would make the harbor much shallower by opening up Internet service providers to negligence suits for statements posted on their sites by third parties.

Craigslist and amici argue that Judge St. Eve�s interpretation of the law would harm the viability of online business and the vitality of online media. The ONA brief states, "The success and viability of these companies "online businesses" and the vitality of online media generally significantly depend on their ability to avoid the potential for liability in cases in which it is alleged that one of their millions of users has misused an interactive service to create and disseminate unlawful content."

THE CASE

The Chicago Lawyers Committee sued craigslist for violating the Fair Housing Act by publishing discriminatory housing ads written by third parties seeking to sell or rent housing. Some examples cited in the decision were: "NO MINORITIES," "Non-Women of Color NEED NOT APPLY," and "looking for gay latino." The civil rights group sued for injunctive relief and money damages.

Craigslist argued that it was protected from liability by the Section 230 safe harbor. That safe harbor has been broadly construed since Zeran v. America Online Inc., 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998). The 4th Circuit held in Zeran that Section 230 �creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.�

Judge St. Eve's noted that the 7th Circuit Court of Appeals, her home circuit, had given Section 230 a narrower interpretation in dicta in Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003). Judge St. Eve adopted that dicta, holding that the immunity applies not to "any cause of action," but only to causes of action where publishing is a necessary element of the case.

The two conflicting interpretations involve the relationship between two sections of Section 230(c), which reads as follows:

(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 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.

Judge St. Eve, following the lead of the 7th Circuit opinion in Doe, held the title of the statute "encouraging Good Samaritan" efforts to remove offensive material from the Internet does not make sense if (c)(1) is interpreted as a separate and unlimited grant of immunity. Businesses are not going to spend the money to edit third-party postings for offensive language if they are protected from liability if they do nothing. Instead, she writes, (c)(1) should be interpreted as definitional only, providing no separate grant of immunity, but rather determining which interactive computer service providers can avail themselves of the immunity in (c)(2). In other words, if an ICS takes it upon itself to remove offensive material, thereby acting as a publisher, then it is entitled to the immunity in (c)(2).

Judge St. Eve wrote that this interpretation best fits the history of Section 230, which was written to overturn a 1995 decision "Stratton-Oakmont v. Prodigy" which held that Internet sites became publishers of material if they edited out offensive passages; as publishers they became liable to suit. Section 230 was to protect them from that liability and to encourage them to remove offensive material.

Finally Judge St. Eve held that because the Fair Housing Act makes it illegal to "publish" a discriminatory housing ad, the law treats craigslist as a publisher who is therefore entitled to the Section 230 safe harbor.

CRAIGSLIST�S ARGUMENT

Craigslist and the amici supporting it argue that the plain language of Section 230 has been correctly interpreted for a decade to provide two separate grants of immunity. Section (c)(1) protects the provider from liability for the postings of third parties. Section (c)(2) protects providers from lawsuits when they decide to edit offensive content from the postings. The ONA brief puts it this way: "Congress passed Section 230 for two key reasons: to promote the continued development of vibrant and diverse online media and services, and to provide service providers with breathing room to engage in voluntary self-regulation."

The broader interpretation of the Section 230 safe harbor is most consistent with the text of the statute, craigslist and the amici argue. In addition, when Congress passed the "Dot Kids Implementation and Efficiency Act," it explicitly endorsed the courts� broader interpretation of the safe harbor. Congressional reports cited in the ONA brief stated that "[t]he courts have correctly interpreted section 230(c)."

The ONA brief rebuts the lawyers' group's argument that there is no difference between traditional and new media in the ability to screen harmful information and that the online media should be subject to the same liability as the traditional media. That argument would go farther than Judge St. Eve�s decision in subjecting online sites to all manner of traditional lawsuits, including defamation actions.

The ONA brief states, "Congress recognized that interactive computer services even those owned or operated by traditional media companies are fundamentally different than traditional media in this crucial respect. Rather than operating as a centralized "publisher," online services make it possible for millions of users to publish material directly and often instantaneously. The sheer volume of third-party communications carried by many of the Amici illustrates the obstacles that online intermediaries would face if they were subject to liability for all third-party content."

IMPACT FOR ONLINE JOURNALISTS

If Judge St. Eve's reading of the Section 230 safe harbor were to become the law of the land, Internet providers could be subject to lawsuits for third-party postings if the cause of action did not have publishing as an element of proof. Defamation suits, which require publication, would not be permitted. But the ONA brief points out that providers would be subject to simple negligence suits. It argues that this interpretation of the law would encourage "artful pleading" of cases, transforming a defamation suit into a negligence action, for example.

If Internet providers faced potential liability for the millions of postings on line every day, they could be forced into self-censorship that would rob the Internet of its vitality. The ONA brief states that the lawyers' committee's theory would force providers "to familiarize themselves with every federal or state law or regulation that might apply to any type of content a user might decide to post, and then institute some form of screening mechanism that would, somehow, block all communications that may run afoul of such regulations."

It adds that Internet services "have revolutionized how people buy and sell goods, make friends, learn facts and opinions, obtain and give feedback, locate services, find housing, or otherwise make connections in ways that are very different from traditional media. Section 230(c)(1), as consistently interpreted by courts across the country, has played and continues to play a critical role in keeping these services viable."