Casting doubt on Zeran
There's a fascinating decision [warning: enormous pdf] out of a federal district court in Chicago about craiglist's liability for fair housing act claims. Spoiler: craigslist is not liable for what posters say in their advertisements for roommates (”Christian single straight female needed”). I think the court gets to the right result, but the opinion contains some dicta (language not essential to the holding) that isn't helpful.
The judge finds that 47 U.S.C. 230 shields craigslist from liability under the Fair Housing Act (look at section (c)), which bars everyone from taking the following steps:
To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.
The advertisements posted by craigslist users may violate this statute, but craigslist is an Interactive Computer Service under Section 230:
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.
Starting with the Fourth Circuit's 1997 Zeran decision (described here), an enormous number of courts have found that Section 230 provides immunity from claims under federal law (except, generally, intellectual property claims) to online service providers of all kinds. The Zeran court noted that making entities or people who don't originate online material liable for it would have staggering effects:
It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive service providers might choose to severely limit the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect.
Many companies have relied on Section 230 and the cases construing this statute to assure their investors that they won't be liable for claims that have to do with third party content.
The craigslist opinion (from a lower court, not an appellate court, but noting dicta in a 7th circuit opinion) in dicta disagrees with the traditional Zeran reading of Section 230 in a couple of crucial respects. First, the court asserts that sites/services are protected by the statute only for claims that would treat them like a “professional” publisher — like someone who edits and chooses what to post. Claims that have to do with the site's role in simply making available the material are not barred, in this court's view.
That's strange, because the universe of claims that have as one of their elements a fingerpointing assertion that “you are an editor” is small. (Indeed, the fair housing claim in this case is one of the few. Plus defamation.) This reading of Section 230 narrows its immunity function substantially.
Second, the craigslist court opines that if a site actually alters material that is then made available (and the altered material sparks a legal claim), then the site shouldn't be immune under Section 230. This is a big deal, because mere editing and selection so far hasn't been enough to make the site liable as an “information content provider”. The court hastens to note that the alterations would have to be part of the challenged material, but this really muddies the waters.
The important takeaway here is that this new decision asserts that the immunity function of Section 230 is limited to claims that specifically include “publishing” as an element. There aren't many claims like that. Now, it may not really matter, because the court does use the statute to protect craigslist. This is all dicta.
I think Congress intended Section 230 to do much more work than this court's crabbed reading would suggest. The Preamble suggests as much:
(b) Policy
It is the policy of the United States -
(1) to promote the continued development of the Internet and
other interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that
presently exists for the Internet and other interactive computer
services, unfettered by Federal or State regulation;
If the goal was just to shield sites from defamation and fair housing act claims, we wouldn't have needed that preamble. The deal struck in Section 230 was to provide broad immunity, and the term “publisher” didn't just mean editing — it meant not holding the site liable to the extent it made material from third parties available.
This case isn't the last word or even (arguably) an important word on online liability. Zeran is still the circuit court opinion that courts will defer to, and the 7th Circuit doubt is dicta; yesterday's opinion came from a lower court within the 7th Circuit and its narrow reading is itself dicta. But if another federal appellate court reads Section 230 differently than the Fourth Circuit did in Zeran, and if the Supreme Court decides that this circuit split is worthy of attention, then we may someday get an opinion from them about this that will give different guidance.
[Updated to make the “dicta” point a few more times]