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March 17, 2008, Alert No. 1,731.
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7th Circuit Applies Section 230 Immunity in Craigslist Case

3/14. The U.S. Court of Appeals (7thCir) issued its opinion [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, opinion and TLJ summary of Zeran v. AOL. This arguably leaves the 9th Circuit's recent opinion [23 pages in PDF] in FHCSFV v. isolated and in conflict with other circuits. See, story titled "9th Circuit Holds 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 in original.)

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 42 U.S.C. §3604(a), which bans housing discrimination based upon race, religion, sex, or family status.

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.

The just issued 7th Circuit opinion does not reference the 9th Circuit's 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, story 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.

Frank EasterbrookJudge Frank 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 unlawful discrimination."

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 [LOC | WW], 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 | WW], 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, Roll 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, voted present.

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 statement after 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 responsibly".

The Center for Democracy and Technology (CDT) wrote a letter [PDF] 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 2008 calendar [4.25 MB PDF].

The Senate will begin its March recess. See, Senate 2008 calendar.

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 Pages 2437-2440.

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 text [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 brief [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 [PDF]. Location: 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 Ave., NW.

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) International 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 6547. Location?

TIME? The National Institute of Standards and Technology (NIST) will host a closed conference titled "FIPS 140-3: Software Security Workshop". See, notice. Location: 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 (NAF). See, 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

Good Friday.

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 8910-8911.

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 release.

More News

3/13. The U.S. District Court (SDFl) issued its final 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 release 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 release.

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