Good Samaritan Reference 47 USC § 230
- Good Samaritan Defense
- 3rd Party Content
- Internet Access Liability
- Foreign Judgments
- 1st Amend
- Child Porn
- Child Porn, Reporting
- Protect Act
- - Notification
- V Chip
- Good Samaritan Defense
141 Cong. Rec. H8469- H8470 (daily ed. Aug. 4, 1995):
"I will give you two quick examples: A Federal court in New York, in a case involving CompuServe, one of our on-line service providers, held that CompuServe would not be liable in a defamation case because it was not the publisher or editor of the material. It just let everything come onto your computer without, in any way, trying to screen it or control it.
"But another New York court, the New York Supreme Court, held that Prodigy, CompuServe's competitor, could be held liable in a $200 million defamation case because someone had posted on one of their bulletin boards, a financial bulletin board, some remarks that apparently were untrue about an investment bank, that the investment bank would go out of business and was run by crooks.
"Prodigy said, 'No, no; just like CompuServe, we did not control or edit that information, nor could we, frankly. We have over 60,000 of these messages each day, we have over 2 million subscribers, and so you cannot proceed with this kind of a case against us.'
"The court said, 'No, no, no, no, you are different; you are different than CompuServe because you are a family-friendly network. You advertise yourself as such. You employ screening and blocking software that keeps obscenity off of your network. You have people who are hired to exercise an emergency delete function to keep that kind of material away from your subscribers. You don't permit nudity on your system. You have content guidelines. You, therefore, are going to face higher, stric[t]er liability because you tried to exercise some control over offensive material.'
"Mr. Chairman, that is backward. We want to encourage people like Prodigy, like CompuServe, like America Online, like the new Microsoft network, to do everything possible for us, the customer, to help us control, at the portals of our computer, at the front door of our house, what comes in and what our children see. This technology is very quickly becoming available, and in fact every one of us will be able to tailor what we see to our own tastes. . . .
"Mr. Chairman, our amendment will do two basic things: First, it will protect computer Good Samaritans, online service providers, anyone who provides a front end to the Internet, let us say, who takes steps to screen indecency and offensive material for their customers. It will protect them from taking on liability such as occurred in the Prodigy case in New York that they should not face for helping us and for helping us solve this problem. Second, it will establish as the policy of the United States that we do not wish to have content regulation by the Federal Government of what is on the Internet . . . ."
Backpage.com & InternetArchive.com
New Hampshire Attorneys General to Backpage.com: Prove You Are Fighting Human Trafficing, New Hampshire Department of Justice Office of Attorney General, August 31, 2011 New Jersey BACKPAGE. COM, LLC. v. Hoffman, Dist. Court, D. New Jersey 2013 (grating plaintiff's restraining order against against NJ law that would have made them liable for third party content; state law is inconsistent with Sec. 230 and unconstitutional violation of the First Amendment) "The Act in question is likely inconsistent with and therefore expressly preempted by Section 230 as Section 230 prohibits "treat[ing]" a "provider or user of an interactive computer service" as the "publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230. Both Backpage and Internet Archive are providers of an interactive computer service within the meaning of CDA Section 230. See 47 U.S.C. § 230(0(2) (defining an interactive computer service as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.). Section 12(b)(1) of the Act runs afoul of Section 230 by imposing liability on Plaintiffs for information created by third parties— namely ads for commercial sex acts depicting minors—so long as it "knows" that it is publishing, disseminating, displaying, or causing to be published, disseminated, or displayed such information. See Almeida v. Amazon.com, Inc., 456 F. 3d 1316, 1321 (11th Cir. 2006) (quoting Zeran v. Am. Online Inc., 129 F. 3d 327, 330 (4th Cir. 1997) ("The majority of federal circuits have interpreted [Section 230] to establish broad federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.") (internal citations omitted); Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101-02 (9th Cir. 2009) ("[w]hat matters is not the name of the cause of action . . . [but] whether [it] inherently requires the court to treat the defendant as the `publisher or speaker' of content provided by another.").
Additionally the Act is inconsistent with Section 230 of the CDA because it criminalizes the "knowing" publication, dissemination, or display of specified content. As Judge Martinez found in McKenna, "in doing so, it creates an incentive for online service providers not to monitor the content that passes through its channels. This was precisely the situation that the CDA was enacted to remedy." McKenna, 881 F. Supp. 2d at 1273 (internal citations omitted)."
Tennessee Backpage.com v Robert E. Cooper, No. 3:12-cv-00654, Order, MDTN Jan. 3, 2013 "In May 2012, the two houses of the Tennessee general assembly respectively passed similar legislation creating the felony crime of "advertising commercial sex with a minor." The legislation closely tracked the first draft of the Washington law. The governor signed the legislation on Ma 21, 2012, making it a felony to "knowingly sell or offer[ ] to sell an advertisement that would appear to a reasonable person to be for the purpose of engaging in what would be a commercial sex act . . . with a minor." See Tenn. Code Ann. § 39-13-315. The Tennessee law was scheduled to take effect July 1, 2012.
On June 27, 2012, Backpage.com brought suit to enjoin the law in the U.S. District Court of the Middle District of Tennessee. The defendants (the Tennessee AG and the district attorneys for each of the state's 31 judicial districts) stipulated they would not enforce the Tennessee law pending resolution of Backpage.com's challenges. After extended briefing and a hearing, the court entered a preliminary injunction on January 3, 2013. Like McKenna. the Tennessee federal court issued a thorough opinion, invalidating the Tennessee statute on all the grounds urged by Backpage.com. See Backpage.com. LLC v. Cooper, No. 3:12-cv-00654, 2013 WL 1558785 (M.D. Tenn. Jan. 3, 2013). The Court wrote:The Constitution tells us that when freedom of speech hangs in the balance—the state may not use a butcher knife on a problem that requires a scalpel to fix. Nor may a state enforce a law that flatly conflicts with federal law. Yet, this appears to be what the Tennessee legislature has done in passing the law at issue.
Cooper, 2013 WL 1558785 at *1. As in Washington, the defendants in Cooper declined to further defend the Tennessee law after the court's preliminary injunction order. On March 19, 2013, the court granted Backpage.com's unopposed motion to convert the preliminary injunction into a permanent injunction and entered final judgment invalidating the Tennessee law." - Backpage.com v. Hoffman, DNJ Aug. 20 2013
Washington Backpage.com, LLC v. McKenna, 881 F. Supp. 1262 (W.D. Wash. 2012) Eric Goldman, Overzealous Legislative Effort Against Online Child Prostitution Ads at Backbpage Fails, Providing Big Win for User Generated Content, Forbes July 30 2012 ("Last week, in Backpage and Internet Archive v. McKenna, 2:12-cv-00954-RSM (W.D. Wash. July 27, 2012), a federal judge rejected the Washington legislature’s efforts, turning the case into a major victory for Section 230 and user-generated content.") "In January 2012, Washington state legislators introduced a bill to address "advertising commercial sexual abuse of a minor." After being enacted by the Washington legislature and signed into law by Washington's governor, the law was set to go into effect on June 7, 2012. See WASH. REN. CODE ANN. § 9.68A.104 (2012).
On June 4, 2012, Backpage.com filed suit in the U.S. District Court `for the Western District of Washington, seeking a temporary restraining order ("TRO"), preliminary and permanent injunctive relief, and a declaration that the new law was unconstitutional and violated the Communications Decency Act of 1996, 47 U.S.C. § 230 ("CDA"). The Court granted Backpage.com's request for a TRO the next day. After full briefing and argument, on July 27, 2012, the Court entered a preliminary injunction, enjoining enforcement of the la on all six of the grounds asserted by Backpage.com and the Internet Archive (which joined as a co-plaintiff)—the same challenges raised here. See Backpage.com, LLC v. McKenna, 881 F. Supp. 1262 (W.D. Wash. 2012).
Thereafter, the defendants in McKenna (the Washington AG and the county prosecutors) conceded they would not continue to defend the law, and on December 10, 2012, stipulated to a final judgment permanently enjoining its enforcement and awarding Backpage.com attorneys' fees. The Washington AG also agreed to work with the state legislature to repeal the Washington statute, and the legislature has since enacted a measure to repeal the law effective July 28, 2013. " - Backpage.com v. Hoffman, DNJ Aug. 20 2013