|9th Circuit Considers
§ 230's Good Samaritan Clause and Blocking of
6/25. The U.S. Court of Appeals
(9thCir) issued its
opinion [PDF] in Zango v. Kaspersky Lab, affirming the
District Court's summary judgment
for a security software maker that blocked adware on the grounds that it has
Section 230's good Samaritan clause.
Section 230(c) provides two types of immunity. Paragraph (1) is the publisher
immunity clause. It 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."
However, this case involves paragraph (2), the second type of immunity, which
the statute identifies as "Good Samaritan" blocking or screening.
that "No provider or user of an interactive computer service shall be held
liable on account of (A) any action voluntarily taken in
good faith to restrict access to or availability of material that the provider
or user considers to be obscene, lewd, lascivious, filthy, excessively violent,
harassing, or otherwise objectionable, whether or not such material is
constitutionally protected; or (B) any action taken to enable or make available
to information content providers or others the technical means to restrict
access to material described in paragraph (1)."
Good Samaritan is a Biblical allusion. See, Luke, Chapter 10, Verses 25-37.
The Court of Appeals wrote that Kaspersky makes software that "helps filter
and block unwanted malicious software, known as ``malware,´´ that can compromise
the security and functionality of a computer. Malware works by, for example,
compromising a user's privacy, damaging computer files, stealing identities, or
spontaneously opening Internet links to unwanted websites, including
It continued that Kaspersky's software "classifies Zango's programs
as adware, a type of malware. Once installed on a user’s computer, adware
monitors a user’s Internet browsing habits and causes ``pop-up ads´´ to
appear on a computer screen while the user browses the Internet. Adware can
also open links to websites and computer servers that host malware and
expose users' computers to infection, and can swamp a computer’s memory and
slow down computer speed and performance. For these reasons, pop-up ads and
adware are unpopular among computer users, and consumers often install
security software specifically to block adware."
In 2006, the Federal Trade Commission
(FTC) filed and settled an administrative
[5 pages PDF] against Zango, Inc., Keith Smith and Daniel Todd alleging unfair
or deceptive trade practices in violation of Section 5 of the FTC Act in
connection with their adware distribution practices. See, story titled "FTC
Files Administrative Complaint Against Deceptive Adware Distributor" in
TLJ Daily E-Mail
Alert No. 1,483, November 6, 2006.
In the present case, Zango filed a complaint in state court in Washington against Kaspersky
alleging tortious interference with contractual rights, violation of the
Washington Consumer Protection Act, trade libel, and unjust enrichment. It
sought injunctive relief. Kaspersky removed the action to the
U.S. District Court (WDWash).
The District Court granted summary judgment to Kaspersky on the ground that
it is entitled to immunity under § 230(c)(2)(B).
Zango brought the present appeal.
The Anti-Spyware Coalition, Business Software Alliance (BSA), Coalition
Against Unsolicited Commercial E-Mail (CAUCE),
Center for Democracy & Technology (CDT), Electronic Frontier
Foundation (EFF), McAfee, PC Tools, and Sunbelt Software filed an
curiae brief [PDF] urging affirmance.
The Court of Appeals affirmed.
It concluded that "The district court correctly held that Kaspersky is a
provider of an ``interactive computer service´´ as defined in the Communications
Decency Act of 1996. We conclude that a provider of access tools that filter,
screen, allow, or disallow
content that the provider or user considers obscene, lewd, lascivious, filthy,
excessively violent, harassing, or otherwise objectionable is protected from
liability by 47 U.S.C. § 230(c)(2)(B) for any action taken to make available to
others the technical means to restrict access to that material. As its software
qualifies, Kaspersky is entitled to good samaritan immunity."
Judge Fisher wrote a concurring opinion. He argued that good Samaritan
blocking immunity is broad, and could be abused for anti-competitive purposes.
He wrote that "extending immunity beyond the facts of this case could pose
serious problems if providers of blocking software were to be given free license
to unilaterally block the dissemination of material by content providers
under the literal terms of § 230(c)(2)(A)."
"Focusing for the moment on anticompetitive blocking, I am
concerned that blocking software providers who flout users’ choices by blocking
competitors’ content could hide behind § 230(c)(2)(B) when the competitor seeks
to recover damages." For example, wrote Fisher, "a
web browser configured by its provider to filter third-party search engine
results so they would never yield websites critical of the browser company or
favorable to its competitors."
He concluded that "It would be an abuse of this immunity to
apply it to blocking activity of the kind I have hypothesized here.
Nevertheless, until Congress clarifies the statute or a future litigant
makes the case for a possible limitation, I agree that Kaspersky qualifies
for immunity under this broadly worded statute."
This case is Zango, Inc. v. Kaspersky Lab, Inc., U.S. Court of
Appeals for the 9th Circuit, App. Ct. No. 07-35800, an appeal from the U.S.
District Court for the Western District of Washington, D.C. No.
CV-07-00807-JCC, Judge John Coughenour presiding. Judge Pam Rymer wrote the
opinion of the Court of Appeals, in which Judge Betty Fletcher joined.
Judge Raymond Fisher wrote a concurring opinion.
|9th Circuit Again
Rejects Section 230 Defense
6/22. The U.S. Court of Appeals
(9thCir) issued its
[PDF] in Barnes v. Yahoo, a Section 230 interactive computer
service immunity case. The 9th Circuit continued its trend of denying Section
230 motions. The Court of Appeals also denied petitions for rehearing and rehearing en
banc. The case goes back to the District Court.
Introduction. Section 230 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."
Interactive computer services have a long record of successful assertion of
Section 230 immunity. However, the 9th Circuit has recently begun to reject
Section 230 assertions. In some cases, the opinions of the 9th Circuit reflect
an affinity with the plaintiffs trial bar, and a disregard for the language of
statutes, and the holdings of the other courts.
Recently, a three judge panel, and an en banc panel, of the 9th Circuit
created an inducement to speak exception to Section 230 immunity. See, April 3,
2008 divided en banc
opinion in FHCSFV v. Roommates.com,
521 F.3d 1157.
See also, stories 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; "9th Circuit to Rehear
Section 230 Case En Banc" in
TLJ Daily E-Mail
Alert No. 1,657, September 18, 2007; and "En Banc 9th Circuit Panel Rejects
Section 230 Immunity in Roommates.com Case" in
TLJ Daily E-Mail
Alert No. 1,741, April 2, 2008.
The opinion in the present case recognizes a contract theory of promissory estoppel.
Proceedings Below. For the purposes of the appeal, the Court of
Appeals accepted as true the facts alleged in the complaint and construed them
in the light most favorable to the plaintiff, Cecilia Barnes.
She alleged that she broke up with her boyfriend, who is not a
party to this action. He then created and published profiles of Barnes in web
sites operated by Yahoo. He published nude images, and sexual solicitations. He
also published her contact information. He also published statements in chat
rooms. Men contacted Barnes.
Barnes contacted Yahoo to request removal of the profiles. While Yahoo said that
it would, after two months, it had not.
From the perspective of plaintiff's tort lawyers, large companies like Yahoo
are deep pocket defendants, capable of paying large settlements or judgments,
while few internet posters are deep pocket defendants.
Barnes filed a complaint in Oregon
state court against Yahoo alleging two state law causes of action, negligence
and breach of contract.
The negligence claim is in the nature of negligent undertaking to provide
services. Barnes alleges that it is based upon Section 323 of the Restatement
(Second) of Torts
As for the contract claim, Barnes did not allege the existence of a contract.
It could not; among other things, consideration is required for the formation of
a contract, and there was no consideration. Rather, she alleged that
Yahoo made a promise to remove the profiles, and she relied upon those promises
to her detriment.
Yahoo removed the action to the U.S. District Court (DOre), and moved to
dismiss for failure to state a claim upon which relief can be granted on the
grounds that 47 U.S.C. § 230 provides it immunity. The District Court
dismissed the complaint. Barnes brought the present appeal.
Court of Appeals. The Court of Appeals reversed on the contract claim,
and remanded to the District Court.
However, it affirmed as to the negligence claim.
The Section 230 defense protects interactive computer services. It is not
disputed that Yahoo is an interactive computer service. Rather, Barnes argued
that in her complaint she did not treat Yahoo as the publisher or speaker of any
information published on the Yahoo web site by Barnes' former boyfriend.
The Court noted that many previous successful assertions of Section 230 have
involved defamation claims.
The Court of Appeals wrote that "what matters is not the name of
the cause of action -- defamation versus negligence versus intentional
infliction of emotional distress -- what matters is whether the cause of
action inherently requires the court to treat the defendant as the
``publisher or speaker´´ of content provided by another. To put it another
way, courts must ask whether the duty that the plaintiff alleges the
defendant violated derives from the defendant’s status or conduct as a
``publisher or speaker.´´ If it does, section 230(c)(1) precludes
The Court then examined the nature of promissory estoppel. Citing Oregon
precedent (this is a diversity case to which the contract law of Oregon
applies), the Court of Appeals wrote that there is a promissory estoppel when
there is "(1) a promise[;] (2) which the promisor,
as a reasonable person, could foresee would induce conduct of the kind which
occurred[;] (3) actual reliance on the promise[;] (4) resulting in a substantial
change in position.".
Barnes alleged a promise. However, the opinion
ignores the questions of how or whether Yahoo foresaw inducement as a result of
its alleged promise, how or whether Barnes relied on the alleged promised, and
how or whether Barnes changed her position.
The Court wrote that the contract theory of
promissory estoppel does not treat an interactive computer service that promises
to remove the content of others as a publisher of that content.
Online publishers make decisions, and make use
of their facilities, to publish content online. They also make decisions, and
use their control over their facilities, to unpublish or remove content from
their web sites. So, why then is Yahoo not being treated by the Court as a
publisher under a theory of liability that alleges its failure to unpublish
The Court of Appeals reasoned that while
unpublishing or removing content is the act of a publisher, promising to
unpublish or remove content is not. Hence, Barnes, under the theory of promisory
estoppel, does not treat Yahoo as a publisher of the boyfriend's statements, and
Yahoo is therefore not entitled to Section 230 immunity.
This opinion's application of the theory of promissory estoppel might be viewed as a results oriented distortion long standing
Consequences. This opinion holds that an interactive web site
operator, such as Yahoo, can be held liable, notwithstanding Section 230
immunity, for the postings of others under the theory that is has promised to
remove offensive or defamatory material.
The opinion exposes web site operators to a greater likelihood of being held
liable for providing interactive features -- especially when they attempt to
respond to requests to remove defamatory material.
But, the Congress added Section 230 in part to give web site operators the
incentive to undertake to remove this sort of content. This opinion takes away
that incentive. That is, if Yahoo had had a policy of never removing defamatory
content, and had refused any request from Barnes to remove content, it could not
be held liable under the 9th Circuit's theory of promissory estoppel.
And of course, this opinion undermines the main purpose of Section 230, to
incent the creation and use of interactive web sites.
For example, the Congress wrote in its findings that
"The Internet and other interactive computer services offer a forum for a true
diversity of political discourse, unique opportunities for cultural development,
and myriad avenues for intellectual activity" and "Americans are relying on
interactive media for a variety of political, educational, cultural, and
entertainment services". This opinion, like the Roommates.com opinion,
will tend to undermine all of this.
This case is Celia Barnes v. Yahoo, Inc., U.S. Court of Appeals for
the 9th Circuit, App. Ct. No. 05-36189, an appeal from the U.S. District
Court for the District of Oregon, Judge Ann Aiken presiding. Judge Diarmuid
O'Scannlain wrote the opinion of the Court of Appeals, in which Judges
Susan Graber and Consuelo Callahan joined.
|Time Warner and Comcast
Announce Principles for Online Video Programming
6/24. Time Warner and Comcast announced in a
release some details of an online video programming trial. Comcast's cable
TV subscribers will be able to view video programming, on demand, at no
additional charge, via computers and other internet protocol based devices.
That is, programming that is being provided via television will also become
available via the internet. Comcast will commence a "national technical
trial of its ``On Demand Online´´ service in July carrying programming from
Time Warner’s Turner networks TNT and TBS". The companies also use the
term "TV Everywhere".
The two companies also announced a set of "principles".
One of these is that "Video subscribers can watch programming from
their favorite TV networks online for no additional charge." Persons who
have not paid for cable TV subscriptions will not have access.
Another principle is that "Video subscribers can access this content
using any broadband connection." The companies did not elaborate in
this release. This may indicate that while one must purchase a cable TV
subscription to watch TV programming via the internet, one need not also
subscribe to the cable operator's broadband internet access service. That is,
there is no video and broadband tying. So for example, if this is the companies'
intent, one could pay for Comcast cable TV service, but no broadband service,
and then use Verizon broadband to view TV programming, with user authentication.
Cable and phone companies are already offering bundled discounts for
combinations of video, voice and broadband. No antitrust regulator has yet
challenged these offerings. By not tying video and broadband, Comcast and Time
Warner have eliminated one possible allegation of anti-competitive conduct.
Another of the just announced principles is that "TV Everywhere is
open and non-exclusive; cable, satellite or telco video distributors can
enter into similar agreements with other programmers."
Nevertheless, Washington DC based interests groups that have a history of
opposing the business practices of the large cable and phone companies, have
already complained about this program.
Gigi Sohn, head of the Public
Knowledge, stated in a
release that this "raises substantial anti-competitive issues by restricting
the availability of programming to the favored distribution methods".
She also argued that "this program violates the open
nature of the Internet. By adding this additional toll lane, Comcast and Time
Warner want to create their own `managed channel´ within the Internet and turn
the Internet into their own private cable channel".
Finally, she said that "We ask the Federal Communications Commission, Federal
Trade Commission and Justice Department to examine this arrangement closely not
only for potential violations of not only Internet openness principles but as a
generally anti-competitive and anti-consumer practice."
However, she did not announce the filing of any complaints or other documents
with any of these agencies.
Similarly, Parul Desai of the Media
Access Project (MAP), stated in a
release that "These new initiatives raise serious legal and policy
questions. Putting content behind a paid wall threatens the wide open model
which has made the Internet innovative and diverse. Until now, users have been
in control, but the ``experiment´´ announced today appears to limit customer
choice. The American public must be attentive whenever choice, innovation and
diversity are threatened."
Actually, restriction of access to web content, including TV shows, has long
been a feature of the internet. As one example, Amazon sells TV programs via
online downloads and short term video on demand.
Brian Roberts, Ch/CEO of Comcast said that "Today's announcement is
all about giving our customers exponentially more free content, more choice and
more HD programming online as well as on TV. We have been working for a year to
bring more TV and movie content to our customers online and we are thrilled that
Time Warner is joining us in our national technical trial. Ultimately, our goal
is to make TV content available to our customers on all platforms."
|This issue contains the following items:
• 9th Circuit Considers § 230's Good Samaritan Clause and
Blocking of Adware
• 9th Circuit Again Rejects Section 230 Defense
• Time Warner and Comcast Announce Principles for Online Video
• OUSTR and Department of Commerce Write PRC Regarding Green
• 7th Circuit Comments on Chevron Deference
• Update on FTC Scareware Case
New items are highlighted in
The House will not meet the week
of June 29 through July 3. It will next meet on July 7,
2009, at 2:00 PM.
The Senate will not meet the week
of June 29 through July 3. It will next meet on July 6,
2009, at 2:00 PM. See, Senate
Deadline to submit reply comments to the Federal Communications
Commission (FCC) in response to its
public notice regarding commercial
programming on school buses. This public notice is DA 09-913 in
MB Docket No. 09-68.
10:00 AM. The Center
for Democracy and Technology (CDT) will host a news briefing titled "The
Emerging Privacy Landscape: Will Congress Enact Broad-based Consumer Privacy
Legislation This Year?". The speakers will include Leslie Harris, Ari
Schwartz, and Alissa Cooper of the CDT. To participate by phone, call
800-377-8846; the participant code is 92874158#. Breakfast will be served.
Location: CDT, 1634 I St., NW.
12:15 - 1:30 PM. The Federal Communications Commission (FCC) will host
a brown bag lunch titled "Bridging the Gap: Transactions 101 -- An
Introduction to Communications Transactions and Related FCC Oversight".
The speakers will be Neil Dellar (FCC Office of the General Counsel) and
Brennan (Hogan & Hartson). For more information, contact Sarah Reisert at
spreisert at hhlaw dot com. The
Federal Communications Bar Association
(FCBA) states that this is a FCBA event. Location:
Hogan & Hartson, 555 13th
Target date for the Office of the U.S.
Trade Representative's (OUSTR) to announce modifications to the list of
articles eligible for duty free treatment under the GSP resulting from the
OUSTR's 2008 Generalized System of Preferences (GSP) Annual Review.
See, notice in
the Federal Register, September 12, 2008, Vol. 73, No 178, at Pages
Deadline to submit comments to the
Office of the U.S. Trade Representative (OUSTR)
regarding the complaints filed with the World
Trade Organization (WTO) by Canada and Mexico regarding U.S. country of
origin labeling requirements. See,
notice in the
Federal Register, May 22, 2009, Vol. 74, No. 98, at Pages 24059-24061.
Deadline to submit initial comments to the Federal
Communications Commission (FCC) in response to its Notice of Inquiry (NOI)
regarding commercial use of a radio audience measurement device developed by
Arbitron named the portable people meter (PPM). The FCC adopted this
NOI on May 15, 2009, and released the text on May 18, 2009. It is FCC 09-43 in
MB Docket No. 08-187. See,
public notice DA 09-1231, and
notice in the
Federal Register, June 1, 2009, Vol. 74, No. 103, at Pages 26235-26241.
Deadline to submit comments to the National
Institute of Standards and Technology's (NIST)
Computer Security Division (CSD) regarding its
SP 800-53 Rev. 3 [220 pages in PDF] titled "Recommended Security
Controls for Federal Information Systems and Organizations".
Deadline to submit comments to the
National Institute of Standards and Technology's
(NIST) Technology Innovation Program Advisory Board in advance of its July 7,
2009, meeting "regarding general policy for the Technology Innovation Program,
its organization, its budget, and its programs within the framework of
applicable national policies as set forth by the President and the Congress".
See, notice in
the Federal Register, June 23, 2009, Vol. 74, No. 119, at Pages 29675-29676.
10:00 AM. The Federal Communications Commission (FCC) may
hold an event titled "Open Meeting". See,
agenda. Location: FCC, Room TW-C305,
445 12th St., NW.
The House will not meet.
10:00 AM. The U.S. Court of
Appeals (FedCir) will consider on the briefs Orenshteyn v. Citrix
Systems, App. Ct. No. 2003-1427. Location: Courtroom 201.
Deadline to submit reply comments to the Federal
Communications Commission (FCC) regarding the March 12, 2009, petition filed
by Denali Spectrum License Sub, LLC asking the FCC to forbear from applying
the unjust enrichment provisions of the FCC's competitive bidding rules. See,
notice in the
Federal Register, June 9, 2009, Vol. 74, No.109, at Pages 27318-27319.
Deadline to submit initial comments to the Federal
Communications Commission (FCC) in response to its public notice regarding
technical specifications for FM digital audio broadcasting (DAB). This
public notice is DA 09-1127 in MM Docket No. 99-325. See,
notice in the
Federal Register, June 12, 2009, Vol. 74, No. 112, at Pages 27985-27988.
|OUSTR and Department of
Commerce Write PRC Regarding Green Dam Mandate
6/24. The Office of the U.S. Trade
Representative (OUSTR) and the Department
of Commerce (DOC) both asserted that Ron Kirk (USTR) and Gary Locke (Secretary
of Commerce) sent a letter to the People's Republic of China's (PRC) Ministry of
Industry and Information Technology (MIIT) and Ministry of Commerce (MOFCOM).
release and DOC
Neither the OUSTR nor the DOC have published a copy of the letter in their
web sites. Both declined TLJ's request for a copy of the letter. The People's
Republic of China did not respond to an e-mail request from TLJ.
Both the OUSTR and DOC stated that the letter urges "China to revoke a proposed rule (Circular
226) that would mandate that all computers produced and sold in China
pre-install a widely-criticized Chinese Internet filtering program called Green
Dam." (Parentheses in original.)
They added that "the proposed new rule raises fundamental questions regarding
They also wrote in their releases that the policy raises "concerns about
compliance with World Trade Organization (WTO) rules, such as notification
They also stated that the policy raises concerns "about the stability of
the software, the scope and extent of the filtering activities and its security
Locke stated in the release that "China is putting companies in an
untenable position by requiring them, with virtually no public notice, to
pre-install software that appears to have broad-based censorship implications
and network security issues".
Kirk said that "Protecting children from inappropriate content is a
legitimate objective, but this is an inappropriate means and is likely to have a
broader scope. Mandating technically flawed Green Dam software and denying
manufacturers and consumers freedom to select filtering software is an
unnecessary and unjustified means to achieve that objective, and poses a serious
barrier to trade".
Ed Black, head of the Computer and
Communications Industry Association (CCIA) stated in a
release that "US trade officials are right that this requirement for
Web-filtering software by the Chinese could violate terms of China's obligations
under the World Trade Organization."
Black added that "For too long US companies have had insufficient support
from the US government and have had to negotiate directly with other nations' on
requests for technology and support for their efforts to censor or spy on their
citizens. Our government, and those who are committed to democracy, should have
been out there creating the rules of the road when it comes to freedom on the
Black also commented that "the problem is not just with the Chinese. It’s a
|7th Circuit Comments
on Chevron Deference
6/24. The U.S. Court of Appeals
(7thCir) issued an order in Hecker v. Deere & Company, denying
petitions for rehearing and rehearing en banc. This is an Employee Retirement
Income Security Act of 1974 (ERISA) case. However, this order addresses, among
other things, the nature and extent of judicial deference to federal agencies
under Supreme Court's 1984
opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council,
467 U.S. 837.
At issue was deference owed to a Department of Labor interpretation of a
regulation implementing the ERISA. The interpretation came in a footnote to
the preamble to the regulation. The Court of Appeals wrote that "we
cannot agree with the Secretary that the footnote in the preamble is entitled
to full Chevron deference".
Reliance upon Chevron deference is often a key element of the Federal
Communications Commission's (FCC) strategy for sustaining its orders against
This case is Dennis Hecker, et al. v. Deere & Company, et al.,
U.S. Court of Appeals for the 7th Circuit, App. Ct. Nos. 07-3605 and 08-1224,
an appeal from the U.S. District Court for the Western District of Wisconsin,
D.C. No. 06 C 719. See also, February 12, 2009, panel
which does not discuss Chevron.
on FTC Scareware Case
6/23. The U.S. District Court (DMd) entered a stipulated final
[PDF] in FTC v. Innovative Marketing, Inc., a case in which the
Federal Trade Commission (FTC) alleged the
fraudulent sale of scareware products by a large number of parties in violation
of Section 5(a) of the FTC Act.
The order addresses only two of the defendants, James Reno and ByteHosting
Internet Services, LLC. They admitted no wrongdoing.
The order enjoins these two defendants from continuing their conduct. It
also provides a monetary judgment for the FTC in the amount of $1,859,954.93.
It also imposes record keeping requirements, and requires compliance
monitoring and reporting.
The FTC filed its civil
complaint [21 pages in PDF; 7 MB] on December 2, 2008. It obtained a
temporary restraining order (TRO) [21 pages in PDF] on that date.
See, story titled "FTC Shuts Down Scareware Sellers" in
TLJ Daily E-Mail
Alert No. 1,871, December 11, 2008.
This case is FTC v. Innovative Marketing, Inc. et al., U.S. District
Court for the District of Maryland, D.C. No. 08-CV-3233-RDB, Judge Richard
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