|7th Circuit Applies Section 230 Immunity
in Craigslist Case
3/14. The U.S. Court of Appeals (7thCir) issued
[10 pages in PDF] in Chicago Lawyers v. Craigslist, a Section 230 interactive
computer service immunity case. The Court of Appeals affirmed the summary judgment of the
District Court for Craigslist on Section 230 grounds.
This opinion is consistent with Zeran v. America Online, 129 F.3d 327 (4th Cir.
1997), and its progeny. See,
TLJ summary of Zeran v. AOL. This arguably leaves the 9th Circuit's recent
opinion [23 pages in PDF] in FHCSFV v. Roommates.com isolated and in
conflict with other circuits. See,
story titled "9th Circuit Holds Roommates.com May be Liable for Speech of Users"
in TLJ Daily E-Mail
Alert No. 1,581, May 15, 2007.
The defendant, Craiglist, Inc., is a corporation that operates a web site named
Craigslist. It is named for its founder, Craig Newmark.
The Court of Appeals wrote that it "provides an electronic meeting place for those who want
to buy, sell, or rent housing (and many other goods and services)". (Parentheses
It is an interactive computer service within the meaning of
47 U.S.C. § 230. This section provides that "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."
It defines "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".
The statute also defines "information content provider" as "any person or
entity that is responsible, in whole or in part, for the creation or development of information
provided through the Internet or any other interactive computer service".
Third parties who publish notices of items for sale or lease in the
Craigslist web site advertise, among
other things, houses and apartments for sale or rent. Some of these people
reference race, religion, sex, or family status.
The plaintiff, the Chicago Lawyers' Committee for Civil Rights Under Law, Inc. (Chicago
Lawyers), filed a complaint in U.S. District Court
(NDIll) against Craigslist alleging violation of
U.S.C. §3604(a), which bans housing discrimination based upon race, religion, sex, or family
The District Court held that Craigslist is
protected by Section 230 immunity. The Court of Appeals affirmed.
This case would have been just another in a long series of straightforward applications of
Section 230 to interactive computer services, but for two circumstances.
First, this Court of Appeals issued an opinion in 2003 that suggested that it might depart
from other circuits. See, Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003).
Second, the 9th Circuit recently issued an opinion that departs from other
circuits; moreover, it did so in a housing discrimination case. See, May 15, 2007,
opinion [23 pages in PDF] of the U.S.
Court of Appeals (9thCir) in FHCSFV v. Roommates.com.
The just issued 7th Circuit opinion does not reference the 9th Circuit's Roommates.com
opinion. It does, however, cite Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), which
extended Section 230 immunity to the defendant. See, June 24, 2003,
opinion [41 pages in PDF]. See also,
titled "9th Circuit Construes Section 230 Immunity in Suit Against Listserv
Operator" in TLJ
Daily E-Mail Alert No. 687, June 25, 2003; story titled "9th Circuit Denies
Petition for Rehearing En Banc in Section 230 Immunity Case" in
TLJ Daily E-Mail
Alert No. 792, December 4, 2003; and story titled "Supreme Court Denies
Certiorari in Section 230 Immunity Case" in
TLJ Daily E-Mail
Alert No. 913, June 8, 2004.
Easterbrook (at right) wrote the just released opinion of the Court of Appeals.
He reasoned that "What §230(c)(1) says is that an online
information system must not ``be treated as the publisher or speaker of any
information provided by´´ someone else. Yet only in a capacity as publisher
could craigslist be liable under §3604(c). It is not the author of the ads and
could not be treated as the “speaker” of the posters’ words, given §230(a)(1)."
He noted that that the Chicago Lawyers argued that "nothing in §230’s text or
history suggests that Congress meant to immunize an ISP from liability under the
Fair Housing Act. In fact, Congress did not even remotely contemplate
discriminatory housing advertisements when it passed §230."
Easterbrook responded that "That's true enough, but the reason a legislature writes
a general statute is to avoid any need to traipse through the United States Code
and consider all potential sources of liability, one at a time. The question is
not whether Congress gave any thought to the Fair Housing Act, but whether it
excluded §3604(c) from the reach of §230(c)(1)."
"Section 230(c)(1) is general". Easterbrook continued that it "covers ads
for housing, auctions of paintings that may have been stolen by Nazis, biting comments about
steroids in baseball, efforts to verify the truth of politicians' promises, and everything
else that third parties may post on a web site; ``information´´ is the stock in
trade of online service providers."
The Chicago Lawyers do have remedies against the persons who have violated federal housing
discrimination laws -- some of the persons who posted notices in the Craigslist web site. Judge
Easterbrook wrote that it "can identify many targets to investigate. It can dispatch
testers and collect damages from any landlord or owner who engages in discrimination. It can
assemble a list of names to send to the Attorney General for prosecution. But given §230(c)(1)
it cannot sue the messenger just because the message reveals a third party’s plan to engage in
This case is Chicago Lawyers’ Committee for
Civil Rights Under Law, Inc. v. Craigslist, Inc., U.S. Court of Appeals, App. Ct. No.
07-1101, an appeal from the U.S. District Court for the Northern District of Illinois, Eastern
Division, D.C. No. 06 C 657, Judge Amy St. Eve presiding. Judge Frank Easterbrook wrote the
opinion of the Court of Appeals, in which Judges Wood and Evans joined.
|Bush and House Democrats Remain Deadlocked
on FISA Reform
3/14. The House approved an amended version of HR 3773
the "Responsible Electronic Surveillance That is Overseen, Reviewed, and
Effective Act of 2007" or "RESTORE Act", by a vote of 213-197. See,
Roll Call No. 145.
The House then commenced a two week recess. The Senate has also started its recess.
President Bush promised to veto the bill on Thursday, March 13. See, story titled "Bush
Announces He Will Veto Latest House Democratic FISA Proposal" in TLJ Daily E-Mail Alert
No. 1,730, March 12, 2008. Bush's staff repeated the veto promise after the House vote.
Bush demands that the House enact the Senate passed FISA reform bill. The Senate approved
its bill, S 2248 [LOC |
the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007", on
February 12 by a vote of 69-29. Twenty Senate Democrats voted for that bill. See,
Call No. 20
In contrast, the March 14 House vote was an almost straight party line vote. Republicans
voted 0-185. Democrats voted 213-12.
The Democrats who voted against the bill are
Rep. Dan Boren (D-OK),
Rep. Mike Capuano (D-MA),
Rep. Christopher Carney (D-PA),
Rep. Jim Cooper (D-TN),
Rep. Bob Filner (D-CA),
Rep. Maurice Hinchey (D-NY),
Rep. Tim Holden (D-PA),
Rep. Dennis Kucinich (D-OH),
Rep. Nick Lampson (D-TX),
Rep. Jim McDermott (D-WA),
Rep. Heath Shuler (D-NC), and
Rep. Peter Welch (D-VT)
Some of the Democrats who voted against the bill are on the left of the House
Democratic leadership on this issue, and oppose the bill on the basis that it
gives the government too much authority and fails to protect the Fourth
Amendment and privacy rights of Americans.
Some Democrats who voted against the bill represent districts that favored
Bush in the 2004 election and/or that have a history of electing Republicans.
These are Blue
Dog Democrats (BDD) -- Boren, Carney, Cooper, Lampson and Shuler -- who have
reason to fear that backing the Democratic leadership on this issue would give
their Republican opponents in the next election a net vote gaining campaign issue.
Rep. Lincoln Davis (D-TN), another BDD,
Rep. Steny Hoyer stated that "This bill is a compromise -- taking the
strengths of the Senate-passed bill and marrying them with the best of the
RESTORE Act, which this House passed last November."
He said that "this bill rejects the Administration's demand that Congress grant blanket,
retroactive immunity to telecommunications companies that assisted with the
President’s warrantless surveillance program".
He also noted that "this bill includes a sunset of December 31, 2009, so that we can
revisit this critical national security legislation and implement lessons learned by the
bipartisan Commission -- which is also proposed in this bill".
Sen. Patrick Leahy (D-VT), who voted against the
Senate's bill, stated after the House vote that "It is a step forward, and a good bill.
The Senate-passed legislation has a number of serious failings and does not adequately protect
the privacy and civil liberties of Americans. The House bill adds several crucial protections
without interfering in any way with this important new surveillance authority".
Tony Fratto, Bush's Deputy Press Secretary, issued a
the House vote. He wrote that "the House bill will be dead on arrival in the Senate and,
in any event, would be vetoed by the President if it ever got to his desk".
Fratto explained that the House "took a significant step backward in
defending our country against terrorism and passed a partisan bill that will
please class-action trial lawyers at the expense of our national security. Their
bill would make it easier for class-action trial lawyers to sue companies whose
only "offense" is that they are alleged to have assisted in efforts to protect
the country after the attacks of September 11."
Fratto asserted that the House bill is "not a serious effort" and is
"designed to give the House Democratic leadership cover for their failure to act
The Center for Democracy and Technology (CDT) wrote a
dated March 12, 2008, that expresses and explains its support for House bill.
|Washington Tech Calendar
New items are highlighted in red.
|Monday, March 17
St. Patrick's Day.
The House will begin is two week March recess. See, Rep. Hoyer's
calendar [4.25 MB PDF].
The Senate will begin its March recess. See, Senate
Deadline to submit reply comments to the
Federal Communications Commission (FCC) in response to
its two notice of proposed rulemakings (NPRMs) regarding service rules for the Wireless
Communications Service (WCS) and for terrestrial repeaters used in conjunction with the
Satellite Digital Audio Radio Service (SDARS). These items are FCC 07-215 in WT Docket No.
07-293 and IB Docket No. 95-91. The FCC adopted these items on December 17, 2007, and
released them on December 18, 2007. See,
notice in the Federal Register, January 15, 2008, Vol. 73, No. 10, at
Deadline to submit reply comments to the Federal Communications
Commission (FCC) in response to its Third Further Notice of Proposed Rulemaking regarding
cable carriage of digital television broadcast signals. The FCC adopted this item on
September 11, 2007, and released the
[68 pages in PDF] on November 30, 2007. This item is FCC 07-120 in CS Docket No. 98-120. See,
notice in the Federal Register, February 1, 2008, Vol. 73, No. 22, at Pages 6099-6101,
and story titled "FCC Adopts R&O and Further NPRM Regarding Cable Carriage of Digital
Broadcast TV Signals" in TLJ
Daily E-Mail Alert No. 1,640, September 17, 2007.
Deadline to submit comments or original research to the
Federal Trade Commission (FTC) related to its
workshop titled "Beyond Voice: Mapping the Mobile Marketplace" to be held
on May 6-7, 2008. See, notice.
|Tuesday, March 18
The House will not meet.
The Senate will not meet.
9:30 AM. The U.S. Court of Appeals
(DCCir) will hear oral argument in Sprint Nextel v. FCC, App. Ct. No.
07-1416. Judges Ginsburg, Sentelle and Brown will preside. This is a petition for review
of the Federal Communications Commission's (FCC) Third Memorandum Opinion and Order in its
proceeding titled "Improving Public Safety Communications in the 800 MHz
Band". See, FCC's
[PDF]. Location: Location: 333 Constitution Ave., NW.
12:15 PM. The Federal
Communications Bar Association's (FCBA) Wireless Practice Committee will host a lunch
titled "Reflections on Spectrum Policy: The Licensed vs. Unlicensed Debates".
The speakers will be David Donovan (Association for
Maximum Service Television), Paul Kolodzy,
Jonathan Nuechterlein (Wilmer Hale),
and Ben Scott (Free Press). The price
to attend is $15. Registrations and cancellations are due by 12:00 NOON On
March 14. See, registration form
Sidley Austin, 1501 K St., NW.
12:15 - 1:30 PM. The Federal Communications
Bar Association's (FCBA) Intellectual Property Practice Committee will host a closed
brown bag lunch titled "Intellectual Property Issues on Capitol Hill".
The speakers will be Ryan Triplette (office of Sen.
Arlen Specter (R-PA)),
Jennifer Schneider (office of
Rep. Rick Boucher (D-VA)), David Whitney
(House Subcommittee on Courts, the Internet and Intellectual Property minority staff), Erik
Stallman (office of Rep. Zoe Lofgren (D-CA)), and Aaron Cooper (Senate Judiciary Committee
staff). Location: Dow Lohnes, 1200 New Hampshire
1:00 - 4:00 PM. The Architectural and Transportation Barriers Compliance
Board's (ATBCB) Telecommunications and Electronic and Information Technology
Advisory Committee (TEITAC) will meet by conference call. See,
notice in the Federal Register, January 24, 2008, Vol. 73, No. 16, at Page 4132.
2:00 - 4:00 PM. The Department of State's (DOS)
Telecommunication Advisory Committee (ITAC) will hold one of a series of meetings to
discuss the U.S. positions for the March and April 2008 meeting of the ITU-T Study Group 3
and related issues of the international telecommunication regulations. See,
notice in the Federal Register, February 4, 2008, Vol. 73, No. 23, at Page
TIME? The National Institute of
Standards and Technology (NIST) will host a closed conference titled "FIPS
140-3: Software Security Workshop". See,
NIST, Lecture Room B, 100 Bureau Drive, Building 101, Gaithersburg, MD.
|Wednesday, March 19
The House will not meet.
The Senate will not meet.
4:00 - 6:30 PM. The
New America Foundation (NAF) will host a panel
discussion titled "Can Online Investing End Poverty? MicroPlace's Innovative Microfinance
Strategy". The speakers will include Jamie Zimmerman (NAF), Tracey Turner (MicroPlace),
Shari Berenbach (Calvert Foundation), Robert Mosbacher (P/CEO of the Overseas Private
Investment Corporation), Kate McKee (Consultative Group to Assist the Poor), Ellen Seidman
notice. Location: Rotunda, Ronald Reagan Building and International Trade
Center, 1300 Pennsylvania Ave., NW.
|Thursday, March 20
The House will not meet.
The Senate will not meet.
|Friday, March 21
The House will not meet.
The Senate will not meet.
12:15 - 1:30 PM. The Federal
Communications Bar Association's (FCBA) Engineering and Technical Practice Committee
will host a brown bag lunch titled "Understanding Satellite Technology and Spectrum
Allocation". The speakers will be Tom Tycz
(Goldberg Godles) and Bob Nelson (Chief
of the FCC's International Bureau's Satellite Division). For more information,
contact Christy Hammond at chammond at wileyrein dot com or 202-719-7365. Location:
Wiley Rein, 10th floor conference
room, 1750 K St., NW.
5:00 PM. Deadline to submit comments to the
Office of the U.S. Trade Representative (OUSTR) regarding
its negotiation of "an anti-counterfeiting trade agreement to strengthen international
cooperation, enforcement practices, and participants' legal frameworks to address
counterfeiting and piracy". See,
notice in the Federal Register, February 15, 2008, Vol. 73, No. 32, at Pages
|People and Appointments
3/14. President George Bush announced his intent to nominate
Lily Claffee to be General
Counsel of the Department of Commerce (DOC). Claffee,
formerly Fu, is currently Deputy General Counsel of the Department of the Treasury (DOT).
Before that, she was Deputy Associate Attorney General at the
Department of Justice (DOJ). And before that, she worked
for the law firm of Mayer Brown. See, White House
3/13. The U.S. District Court (SDFl) issued its
judgment [35 pages in PDF] in FTC v. Nationwide Connections, a civil
enforcement action, brought under the Federal Trade Commission Act, at 15 U.S.C. §§ 45 and 53(b),
in connection with the fraudulent placement of collect call charges on consumers' telephone
bills, including for lines connected to computers and fax machines. This judgment enjoins
further violations. This case is FTC v. Nationwide Connections, Inc., et al., U.S.
District Court for the Southern District of Florida, D.C. No. 06-80180-RYSKAMP/VITUNAC, Judge
Kenneth Ryskamp presiding.
3/13. AOL announced in a
that it "has entered into an agreement to acquire"
Bebo, which operates a social networking web site.
3/13. The Department of Justice (DOJ) charged
Parthasarathy Sudarshan by a criminal Information with conspiracy "to violate IEEPA and the
EAR by exporting critical electronic components to Entity List organizations in India without
first obtaining licenses from the Department of Commerce" and "to violate AECA and
the ITAR by exporting defense articles on the Munitions List to India without first obtaining
licenses from the Directorate of Defense Trade Controls". The Information alleges that
Sudarshan exported to military agencies of the government of India static random access memory
(SRAM) chips, microprocessors, converters, capacitors, rectifiers, resistors, other electrical
components with applications in missile guidance and firing systems. Sudarshan simultaneously
agreed to plead guilty. The AECA is the Arms Export Control Act, 22 U.S.C. § 2778. The ITAR is
the International Traffic in Arms Regulations, 22 C.F.R. Parts 120-130. The EAA was once the
Export Administration Act. It expired. The EAR is the Export Administration Regulations, 15
C.F.R. Parts 730-774, promulgated pursuant to the EAA. The IEEPA is the International Emergency
Economic Powers Act, 50 U.S.C. §§ 1701-1706. President Bush issues an executive order every
year extending the EAR, under authority of the IEEPA. See also, DOJ
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