5/20. Craigslist, Inc. filed a complaint [34 pages in PDF] in U.S. District Court (DSCar) against Henry McMaster (in his capacity as Attorney General of the state of South Carolina), and other state officials, seeking declaratory and injunctive relief.

The complaint alleges that McMaster has threatened Craigslist with criminal prosecution in connection with users' postings of advertisements for sexual prostitution services on the Craigslist web site.

Craigslist also filed a Motion for Temporary Restraining Order [37 pages in PDF].

The complaint and TRO motion request that the District Court block the filing of criminal charges against Craigslist or its management for the postings of third parties.

The complaint states that McMaster "has recently made, and is continuing to make, direct and public threats to criminally prosecute craigslist and its management based on the alleged presence on the craigslist website of third-party ads or notices that, according to Defendant McMaster, solicit prostitution or other unlawful activity or contain pornographic images."

Section 230 Immunity. First, the complaint alleges that criminal prosecution would violate 47 U.S.C. § 230, which provides immunity to interactive computer services for the postings of others.

47 U.S.C. § 230 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".

Craigslist has previously successfully asserted Section 230. In Chicago Lawyers v. Craigslist, attorneys filed a lawsuit seeking to impose liability under civil rights laws upon Craigslist for the statements of the web sites' users regarding roommates, apartments, and housing. The 7th Circuit held that Section 230 immunizes Craigslist. See, March 14, 2008, opinion [10 pages in PDF] of the U.S. Court of Appeals (7thCir), and story titled "7th Circuit Applies Section 230 Immunity in Craigslist Case" in TLJ Daily E-Mail Alert No. 1,731, March 17, 2008.

First Amendment. The complaint also alleges that criminal prosecution would violate the First Amendment.

42 U.S.C. § 1983 provides a private right of action against states that violate civil rights. It provides, in part, that "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."

Federal Courts have held that it gives rise to a right of action for violation of First Amendment rights. See, for example, El Dia v. Rosello, 165 F.3d 106 (1st Cir, 1999).

Craigslist's TRO motion contains a detailed First Amendment analysis.

Dormant Commerce Clause. The complaint also alleges that criminal prosecution would violate the dormant commerce clause, "because it seeks to apply South Carolina law to regulate commercial transactions that take place wholly outside of the State of South Carolina."

Article I, Section 8, of the Constitution provides that "The Congress shall have Power ... to regulate Commerce with foreign Nations, and among the several States ..." The dormant commerce clause is the judicial concept that the Constitution, by delegating certain authority to the Congress to regulate commerce, thereby bars the states from legislating on certain matters that affect interstate commerce, even in the absence of Congressional legislation. It is applied to block states from regulating in a way that materially burdens or discriminates against interstate commerce.

See, Gibbons v. Ogden, 22 U.S. 1 (1824), and Cooley v. Board of Wardens, 53 U.S. 299 (1851). More recent treatments of the concept include Healy v. The Beer Institute, 491 U.S. 324 (1989), and CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987).

Reaction. John Morris, of the Center for Democracy and Technology (CDT), wrote a short piece on May 15, 2009, regarding threats by McMaster and others. Morris wrote that "Over the last few weeks, numerous state Attorneys General (and the Cook County Sheriff) have been tossing around threats against Craigslist, the online classified ad forum. The AGs were claiming that Craigslist is responsible for ``erotic services´´ ads placed by Craigslist users. The AGs were demanding that Craigslist shut down parts of its service and/or censor postings made by its users. At least one AG -- in South Carolina -- said that he will bring criminal charges against Craigslist if it fails to eliminate any content to which that AG objects." (Parentheses in original.)

Morris continued that "These threatened charges both violate the U.S. Constitution and directly conflict with federal law. Federal law is crystal clear that Craigslist has no liability under state law for content posted by users. If a prostitute advertises illegal services on Craigslist and then commits a crime, the prostitute may be guilty, but Craigslist is not. In 1996, Congress passed a law -- known as ``Section 230´´ -- for the very reason that it wanted to leave sites like Craigslist free to adopt remedial measures against unsavory content -- as Craigslist has done -- without fear of becoming liable as the publisher of the content posted by users."

McMaster wrote in the South Carolina Attorney General web site, after the filing of the complaint, that "The defensive legal action craigslist has taken against the solicitors and my office is good news. It shows that craigslist is taking the matter seriously for the first time."

He added that "More importantly, overnight they have removed the erotic services section from their website, as we asked them to do. And they are now taking responsibility for the content of their future advertisements. If they keep their word, this is a victory for law enforcement and for the people of South Carolina."

This case is Craigslist, Inc. v. Henry McMaster, et al., U.S. District Court for the District of South Carolina, Charleston Division, D.C. No. 2:09-cv-1308-CWH.

5/19. President Obama nominated Phil Verveer to be Deputy Assistant Secretary of State for International Communications and Information Policy, and U.S. Coordinator for International Communications and Information Policy. See, White House news office release.

Verveer has expertise in communications and antitrust matters, representing clients before the Federal Communications Commission (FCC), National Telecommunications and Information Administration (NTIA), Office of the U.S. Trade Representative (OUSTR), Antitrust Division of the Department of Justice, and Committee on Foreign Investments in the U.S.

Verveer is of counsel in the Washington DC office of the law firm of Jenner & Block. However, until February of 2009 he was a long time partner in the Washington DC office of the law firm of Willkie Farr & Gallagher.

David Gross, who is now a partner at the law firm of Wiley Rein, held the position throughout the Bush administration.

Phil Verveer is married to Melanne Verveer. She is already the State Department's Ambassador at Large for Global Women's Issues. She was previously Chief of Staff to First Lady Hillary Clinton, who is now Secretary of State.

5/20. President Obama nominated Alejandro Mayorkas to be Director of U.S. Citizenship and Immigration Services at the Department of Homeland Security (DHS). See, White House news office release.

5/16. President Obama nominated Jon Huntsman to be Ambassador to the People's Republic of China. He is the Governor of the state of Utah, and a Republican. He speaks Mandarin Chinese. See, White House news office release.

5/15. President Obama announced his intent to nominate six persons to be U.S. Attorneys: Preet Bharara (for the Southern District of New York), Tristram Coffin (District of Vermont), Jenny Durkan (Western District of Washington), Paul Fishman (District of New Jersey), John Paul Kacavas (District of New Hampshire), and Joyce Vance (Northern District of Alabama). See, White House news office release. Bharara has worked for Sen. Charles Schumer (D-NY) and the Senate Judiciary Committee's (SJC) Subcommittee on Administrative Oversight and the Courts.

5/15. The Securities and Exchange Commission (SEC) announced that William Schulz, Director of Legislative and Intergovernmental Affairs, will leave the SEC. He came to the SEC with former Chairman Chris Cox. See, SEC release.

5/14. President Obama nominated Aneesh Chopra to be an Associate Director of the Office of Science and Technology Policy (OSTP). See, White House news office release.

5/13.The Federal Communications Commission (FCC) named Thomas Pugh to be member of the Federal-State Joint Board on Jurisdictional Separations. Pugh is a Commissioner on the Minnesota Public Utilities Commission. He replaces Mark Johnson, a Commissioner on the Regulatory Commission of Alaska. See, FCC Order [PDF].

5/12. President Obama nominated William Wilkins to be Chief Counsel for the Internal Revenue Service (IRS) and an Assistant General Counsel in the Department of the Treasury. See, White House news office release.

5/12. President Obama nominated Jeffrey Zients be Deputy Director for Management in the Office of Management and Budget (OMB). See, White House news office release.

5/11. President Obama nominated Stephen Preston to be General Counsel of the Central Intelligence Agency (CIA). See, White House news office release. He is a partner in the Washington DC office of the law firm of Wilmer Hale. He worked at the Department of Justice and Department of Defense during the Clinton administration. He represented Lucent during the Committee on Foreign Investments in the U.S.'s review of its merger with Alcatel.

This issue contains the following items:
 • Craigslist Files Section 230 Declaratory Judgment Action
 • Obama Nominates Verveer for State Department Communications Position

The House will meet at 10:00 AM. The agenda the day includes a vote on HR 1676 [LOC | WW], the "Prevent All Cigarette Trafficking Act of 2009" or "PACT Act". See, Rep. Hoyer's schedule for week of May 18, and schedule for May 21.

The Senate will meet at 9:00 AM. It will resume consideration of HR 2346 [LOC | WW], the supplemental appropriations bill.

8:00 AM. The Federal Aviation Administration's (FAA) Commercial Space Transportation Advisory Committee will meet. See, notice in the Federal Register, April 13, 2009, Vol. 74, No. 69, at Page 16914. Location: FAA Headquarters Building, Bessie Coleman Conference Center, 2nd floor, 800 Independence Ave., SW.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Fiber to the Library: Next Generation Broadband for Next Generation Libraries". The speakers will be Rob Atkinson (ITIF), Don Means (Digital Village Associates), and John Windhausen (Telepoloy). Location: ITIF, Suite 200, 1250 Eye St.,  NW.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda again includes consideration of S 417 [LOC | WW], the "States Secret Protection Act", and HR 985 [LOC | WW] and S 448 [LOC | WW], both titled the "Free Flow of Information Act of 2009". See, stories titled "Senate Judiciary Committee to Consider State Secrets Bill" and "9th Circuit Rules in State Secrets Case" in TLJ Daily E-Mail Alert No. 1,933, April 29, 2009. The agenda also includes consideration of the nominations of David Hamilton to be a Judge of the U.S. Court of Appeals (6thCir), Andre Davis to be a Judge of the U.S. Court of Appeals (4thCir), and Thomas Perez to be Assistant Attorney General in charge of the Civil Rights Division. The SJC rarely follows its published agendas. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "The U.S. - Panama Trade Promotion Agreement". See, notice. Location: Room 215, Dirksen Building.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics (BOE) will host a seminar by Chris Knittel (UC Davis). He is an economist, and co-author of the paper [76 pages in PDF] titled "Estimation of Random Coefficient Demand Models: Challenges, Difficulties and Warnings". Location: FTC Conference Center, 601 New Jersey Ave., NW.

There will be no votes in the House. See, Rep. Hoyer's schedule for week of May 18.

Memorial Day. See, Office of Personnel Management's (OPM) list of 2009 federal holidays.

The House will not meet the week of May 25-29.

The Senate will not meet the week of May 25-29. See, Senate calendar.

9:00 AM - 3:45 PM. The American Enterprise Institute (AEI) will host an event titled "China Since Tiananmen: Power, Party, and Society". There will be five panels, including one on competition, and another on the economy. See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a seminar conducted by Stefan Buehler (University of St. Gallen) on his paper titled "Making Sense of Non-Binding Retail-Price Recommendations". To request permission to attend, contact Patrick Greenlee at 202-307-3745 or atr dot eag at usdoj dot gov. Location: Bicentennial Building, 600 E St., NW.

Deadline to submit initial comments to the Copyright Royalty Judges (CRJ) in response to its Notice of Inquiry (NOI) regarding "the costs of census versus sample reporting to assist the Judges in the revision of the interim regulations for filing notices of use and the delivery of records of use of sound recordings under two statutory licenses of the Copyright Act". See, notice in the Federal Register, April 8, 2009, Vol. 74, No. 66, at Pages 15901-15904. See also, the CRJ's notice in the Federal Register regarding its Notice of Proposed Rulemaking (NPRM), Federal Register, December 30, 2008, Vol. 73, No. 250, at Pages 79727-79734, and the CRJ's web page with hyperlinks to the comments submitted in response to the NPRM.

No events listed.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics (BOE) will host an untitled seminar by Chris Knittel (UC Davis) He is an economist who has written about electricity and energy. Location: FTC Conference Center, 601 New Jersey Ave., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Market Definitions at the FCC -- Theory and Practice". The first panel is titled "How the FCC Defines Markets". The speakers may be John Nakahata (Harris Wiltshire & Grannis), David Lawson (Sidley Austin), and Don Stockdale (Deputy Chief of the FCC's WCB). The second panel is titled "Market Analysis in Practice". The speakers may be David Reitman (CRA International) and Gregory Sidak (Criterion Economics). The price to attend ranges from $25 to $150. Location: Arnold & Porter, 555 12th St., NW.

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