EFF Heads To Court To Fight Off Smart Grid Company That Can't Wrap Its Mind Around Section 230 Protections

from the internal-logic-failure dept

Apparently the legal battle between a bunch of contractors providing "smart meter" equipment to the city of Seattle and FOIA clearinghouse MuckRock isn't over. The last time we checked in, a judge had overturned his own hastily-granted injunction, relieving MuckRock of the impossible demands placed on it by miffed tech provider Landis+Gyr -- which included handing over the details of everyone who might have seen Landis+Gyr's documents and "retrieving protected information that may have been downloaded" from the site.

MuckRock was allowed to reinstate the documents and Landis+Gyr walked away from a debacle of its own making. Another contractor utilized by Seattle Power and Light (Ericsson) had pursued a similar injunction but dropped MuckRock from its complaint, following Landis+Gyr into battle against the entity that had released the documents to requester Phil Mocek: the city of Seattle.

But there's still one company pursuing a case against MuckRock. The EFF, on its way back into court to fight the tenacious litigant, points out that Elster Solutions, LLC is still hoping to hold MuckRock accountable for publishing documents received from the city of Seattle. But it's impossible to ascertain why it's going after MuckRock.

First off, Section 230 shields MuckRock from this sort of litigation.

Section 230 provides broad protections for online platforms such as MuckRock, shielding them from liability based on the activities of users who post content to their websites. Given that broad immunity, MuckRock cannot be sued for hosting public records sought by one of its users regardless of whether they contain trade secrets.

MuckRock isn't the correct target because it only hosts the documents. It did not demand them itself, nor did it actively participate in the posting of the documents. MuckRock's system is automated. Default user settings will, without addtional input or control, post all correspondence and responsive documents pertaining to public records requests routed through the site. This makes Mocek's request and published documents third party, user-generated content.

The other reason why Elster's decision to name MuckRock as a defendant is completely misguided is this simple fact:

MuckRock currently does not host any documents from the company, Elster Solutions, LLC, that are subject to the public records request.

Even if MuckRock were able to obtain these documents, it wouldn't be doing so directly -- which is exactly what Elster claims has happened or might possibly happen. It wants to prevent the release of unredacted documents to the site (via requester Phil Mocek), but its litigious attention should be solely focused on the entity releasing them, rather than the site hosting them. At this point, MuckRock doesn't have anything Elster wants to argue about, and yet, it's doing so anyway. Its complaint is not only seemingly unfamiliar with Section 230 protections, but also severely deficient. From the EFF's motion to dismiss [PDF]

The Court should dismiss MuckRock from the lawsuit due to the obvious deficiencies in in Elster’s allegations in the Complaint. With respect to MuckRock, the Complaint contains precisely the type of bare, conclusory, or formulaic allegations the Court said were insufficient in Iqbal. See Yates, 2014 U.S. Dist. LEXIS 71077, at *8 (“[b]are, conclusory and formulaic allegations of involvement do not state a claim for relief against a particular defendant”). The Complaint mentions MuckRock in only three paragraphs, and in all three instances fails to specify any conduct by MuckRock that underlies any purported claim against it. (See Complaint ¶¶ 2, 6, 18.) Paragraph 6 references MuckRock’s domicile and state of incorporation. Paragraph 18 merely recites that Phil Mocek made a request for certain documents. And paragraph 2 is an introductory paragraph vaguely alleging that Mocek “and/or” MuckRock submitted a records request.

This lawsuit shouldn't last for much longer. What's surprising is that it's lasted this long already.

Filed Under: cda 230, documents, foia, hosting, seattle, section 230, smart meter
Companies: eff, elster solutions, landis+gyr, muckrock


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  • icon
    That Anonymous Coward (profile), 22 Sep 2016 @ 1:33pm

    Its a shame we have to many lawyers who need to pay off the loans for school. Some overreach to inflate their fees in having to try and defend the undefendable on the clients dime.

    They take on a client who wants to sue everyone under the sun, smile and tell them sure because if they tell them thats not how any of this works, they will get someone else who will do exactly what they want.

    Its a pity that it seems all of the governing bodies who should punish this sort of thing, are more concerned with protecting the image of the profession by looking away rather than taking action before the coverage is so great that they can no longer look away... and then hand out 'punishments' that are no real deterrent because looking deeper would open the can of worms they just want to ignore.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Sep 2016 @ 1:50pm

    Landis+Gyr...secretly installing microphones and cameras in your smart meter to offer 'better customer service'

    reply to this | link to this | view in chronology ]

  • icon
    Whatever (profile), 22 Sep 2016 @ 11:01pm

    Does 230 come into play with surrogates?

    This situation presents a real problem. While Muckrock in theory does not get the FOIA documents themselves, they do seem to play a significant role beyond blindly hosting them.

    One thing I see is organization and focusing. Does Muchrock (or staff, employees, editors, etc) provide any "aim" or provide a target list? Do they in any way organize people to go and make these requests?

    Another thing I see is curation: Does Muckrock take the posted documents and collate, curate, or otherwise edit them together to "get rid of the blackouts"? In other words, does Muckrock edit and republish the results?

    I ask this because I don't spend time on the site and it's not clear on a cursory glance how they actually work. But it would seem that if any of what I raised is true, then section 230 may not apply (no matter how much EFF wishes it does).

    I also think that this may be the sort of case that leads to changes in the law to stop those who seek to hide bad acts behind section 230. At minimum, Muchrock appears to be encouraging a certain amount of abuse of the FOIA, and that's not good for honest, regular citizens trying to get information. It's like getting stuck at the ATM behind the guy with 11 cars and 120 bills to pay. He ends up hogging all the resources.

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 23 Sep 2016 @ 7:02am

      Re: Does 230 come into play with surrogates?

      FOIA documents are public. And "blindingly hosting" is amusing. That's precisely what CDA protects. In their case they maybe could moderate what goes in their servers but what about hundreds of hours of video every minute in Youtube? Or hundreds of thousands of posts on Facebook per minute? Of course you'll ignore this because you seem to believe there are magic ways of preventing what you think is wrong (note I'm not saying necessarily illegal).

      MurckRock is not abusing the system, it is streamlining and making it easier for people to go for it. Yet another thing you are failing at understanding.

      reply to this | link to this | view in chronology ]

      • icon
        Whatever (profile), 23 Sep 2016 @ 8:20am

        Re: Re: Does 230 come into play with surrogates?

        " And "blindingly hosting" is amusing. That's precisely what CDA protects"

        Exactly my point. The question is simply does Muckrock ONLY host, or are the active participants in the collection, curation, editing, combining, or whatever of the documents collected?

        The metnion of facebook or youtube is a misdirection. It's not about any of that - it's specifically about what Muckrock does or does not do beyond providing hosting.

        See, as an example, Muckrock appears to combine those "user posted content" documents into stories. Those combined stories wouldn't normally be protected by section 230 in and of themselves. The source documents, perhaps, but not the stories written based on them. They would have a better first amendment claim on their stories.

        The other question is that of FOIA abuse. That is where a group of people coordinate to ask for the same or similar documents (different wording for the same thing) hoping to get responsive documents where any blacked out parts might be exposed on another version of the document (different blocked information). Using such an approach to obtain information may be legal, but it would most certainly both break the spirit of the act and provide more than enough reasons for agencies to start denying requests or to provide full redacted documents to avoid any issues.

        Do I think the lawsuit has merit? Nope. I just don't think that section 230 is the answer, and if it is, then section 230 is broken.

        reply to this | link to this | view in chronology ]

  • identicon
    Sok Puppette, 23 Sep 2016 @ 6:28am

    Shouldn't every article like this, as a matter of policy, include a prominent link to the documents in question?

    reply to this | link to this | view in chronology ]


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