New exception to intermediaries' immunities under CDA 230
The Allow States and Victims to Fight Online Sex Trafficking Act is the first amendment since 1996 to one of the US’s core Internet laws, Communications Decency Act Section 230 (CDA 230). (The bill is commonly referred to as FOSTA, based a title from an earlier draft, and was also at one point known as SESTA.) CDA 230 broadly immunizes intermediaries from liability for content posted by users, with the important exceptions of intellectual property claims and federal criminal claims. FOSTA adds a new exception for claims involving prostitution and sex trafficking. FOSTA amends CDA 230 itself, and also amends existing federal criminal laws covering prostitution (18 USC 2421A) and trafficking (18 USC 1591 and 1595). It exposes intermediaries to two new categories of lawsuits. One is civil claims brought by private parties...
Center for Democracy & Technology, Intermediary Liability, https://cdt.org/issue/free-expression/intermediary-liability Electronic Frontier Foundation, https://www.eff.org Eric Goldman's Technology and Marketing Law Blog, blog.ericgoldman.org including a discussion of all Section 230 cases so far decided Stanford CIS, Intermediary Liability, https://cyberlaw.stanford.edu/focus-areas/intermediary-liability The Takedown Project, http://takedownproject.org/
SESTA and FOSTA SESTA (in the Senate) and FOSTA (in the House) are both bills that would amend Communications Decency Act Section 230 (CDA 230) to create new liability for intermediaries in sex trafficking cases. Both are responses to judicial victories by Backpage, a classified advertising site that includes adult services listings. After Backpage successfully relied on CDA 230 immunities, new facts came to light, including claims that Backpage employees worked directly with sex traffickers to help draft advertisements. At least one case, Doe v. Backpage, is ongoing and may lead to a different result under CDA 230. SESTA, the Stop Enabling Sex Traffickers Act, would create new civil and criminal claims in sex trafficking cases. It would expand federal criminal law, which applies to platforms regardless of CDA 230. In...
New questions about framing after ten years of peace under the "server test"
This case asks whether in-line linking or framing of an image can violate the public display right under US copyright law. Diverging from long-standing precedent known as the “server test” under Perfect 10 v. Amazon and other cases outside its Circuit, the District Court here held that framing is an actionable public display. The lower court ruling caused considerable consternation among academics and civil society. Assuming the case is appealed, it will presumably draw amicus briefs and more commentary.
This is one of several cases seeking to hold Internet platforms civilly liable under US statutes barring material support of terrorism. The first instance court rejected plaintiff’s claim on several grounds, including Twitter’s intermediary immunity under Communications Decency Act Section 230 (CDA 230). On appeal, the Ninth Circuit Court of Appeal rejected plaintiff’s claims without reaching the CDA 230 issues. It based its analysis on the causation requirement of the civil material support statute. Material support claims raise a few questions under CDA 230 -- none entirely novel, but all important. One is whether the existence of a federal criminal statute on material support means that plaintiffs’ federal civil claims -- which would otherwise be barred by CDA 230 -- somehow fit in under the statute’s exemption for...
EFF's US court challenge to Global Equity's Australian injunction
This case began when US digital civil liberties organization Electronic Frontier Foundation (EFF) featured defendant Global Equity in its "Stupid Patent of the Month" blog series. EFF said Global Equity “seems to be a classic patent troll,” and called for patent law reform. Global Equity demanded that EFF retract the post, then sued for defamation in its home forum, South Australia. EFF did not appear, and the Australian court issued an injunction ordering EFF to remove the post and cease publishing on the topic of Global Equity's intellectual property. EFF did not remove the article, saying that it consisted of “substantially true facts, protected opinion, and rhetorical hyperbole,” but said that it felt chilled from publishing further on the topic. EFF sought declaratory relief, in the form of an order declaring the...