Trump Campaign Tries To Defend Itself With Section 230, Manages To Potentially Make Things Worse For Itself

from the just-one-more-wafer-thin-defense dept

It isn't unusual or unwarranted for Section 230 to show up as a defense in situations where some might not expect it. Its basic principles may apply to more situations than may necessarily be readily apparent. But to appear as a defense in the Cockrum v. Campaign for Donald Trump case is pretty unexpected. From page 37 of the campaign's motion to dismiss the case against it, the following two paragraphs are what the campaign slipped in on the subject:

Plaintiffs likewise cannot establish vicarious liability by alleging that the Campaign conspired with WikiLeaks. Under section 230 of the Communications Decency Act (47 U.S.C. § 230), a website that provides a forum where “third parties can post information” is not liable for the third party’s posted information. Klayman v. Zuckerberg, 753 F.3d 1354, 1358 (D.C. Cir. 2014). That is so even when even when the website performs “editorial functions” “such as deciding whether to publish.” Id. at 1359. Since WikiLeaks provided a forum for a third party (the unnamed “Russian actors”) to publish content developed by that third party (the hacked emails), it cannot be held liable for the publication.

That defeats the conspiracy claim. A conspiracy is an agreement to commit “an unlawful act.” Paul v. Howard University, 754 A.2d 297, 310 (D.C. 2000). Since WikiLeaks’ posting of emails was not an unlawful act, an alleged agreement that it should publish those emails could not have been a conspiracy.

This is the case brought against the campaign for allegedly colluding with Wikileaks and the Russians to disclose the plaintiffs’ private information as part of the DNC email trove that ended up on Wikileaks. Like Eric Goldman, who has an excellent post on the subject, I'm not going to go into the relative merits of the lawsuit itself, but I would note that it is worth consideration. Even if it's true that the Trump campaign and Wikileaks were somehow in cahoots to hack the DNC and publish the data taken from it, whether and how the consequences of that disclosure can be recognized by law is a serious issue, as is whether this particular lawsuit by these particular plaintiffs with these particular claims is one that the law can permit to go forward without causing collateral effects to other expressive endeavors, including whistleblower journalism generally. On these points there may or may not be issues with the campaign's motion to dismiss overall. But the shoehorning of a Section 230 argument into its defensive strategy seems sufficiently weird and counterproductive to be worth commenting on in and of itself.

For one thing, it's not a defense that belongs to the campaign. It's a defense that belongs to a platform, if it belongs to anyone, and the campaign was not a platform. Meanwhile the question of whether Wikileaks is a platform able to claim a Section 230 defense with regard to the content at issue is not entirely clear; like most legal questions, the answer is, "It depends," and it can depend on the particular relationship the site had with the hosting of any particular content. True, to the extent that Wikileaks is just a site hosting material others have provided the answer is more likely to be yes – although even then there is an important caveat: as Eric pointed out, Section 230 doesn't magically make content be "legal." It's simply an immunity from liability for certain types of claims. It's not even all claims. There's no limitation, for instance, on liability for claims asserting violations of another's intellectual property, nor is there any limit to liability for claims arising from violations of federal criminal law. While the Cockrum plaintiffs are bringing forward tort claims, which are the sorts of claims that Section 230 generally insulates platforms from, Section 230 would do nothing to shield the exact same platform from a federal prosecution arising from its hosting of the exact same information.

But the bigger issue is whether Wikileaks is just a platform merely hosting information others have provided, particularly with respect to the DNC emails. If it had too much agency in the creation of the information that ended up hosted on it, it might not be a Section 230-immune "interactive computer service provider" and instead might be found to be a potentially liable "information content provider." The Trump campaign is correct that a platform can exert quite a bit of editorial discretion over the information that appears on it without being considered an information content provider, but at a certain point courts become unwilling to regard the platform's interaction as editorial and instead find it to be authorial. There are reasons to champion drawing the line on what counts as editorial expansively, but it is naïve to pretend that courts will deem all interaction between a platform and the content appearing on it to be so. There is simply far too much caselaw to the contrary.

In fact, a great deal of the caselaw suggests that courts are often particularly unwilling to simply assume that a platform lacked creative agency in the content at issue in cases where the optics surrounding the platform and the content at issue are poor. As Eric has noted in previous posts, this reluctance is problematic, because forcing a platform to go through discovery in order to satisfy the court that there is no evidence of the platform's authorship of the content at issue, which would disqualify the platform from Section 230's protection, raises the costs of being a platform to the sort of crippling level that Section 230 is supposed to forestall. There is reason to worry that the optics surrounding this case may potentially encourage courts to create unpleasant precedent that will make it harder for other platforms to raise Section 230 as a defense in order to quickly end expensive, Section 230-barred lawsuits against them in the future.

But it's the discovery issue that makes the campaign's raising of Section 230 as a defense seem so odd: on page 1 of the motion to dismiss they complain the lawsuit was brought as "a vehicle for discovery of documents and evidence," but by raising Section 230 as a defense it only invites more of it. If any of the plaintiffs' claims were to go forward there would already be plenty of discovery demands to explore the relationship between the campaign and Wikileaks, which the campaign would appear to not want. The objective of the campaign should therefore be nothing more than making the case go away as quickly and quietly as possible. But by gratuitously throwing in Section 230 as a defense, one in which Wikileaks' authorship role is inherently in question and potentially contingent on its relationship with the campaign, rather than provide a basis for dismissal, the campaign has instead provided the court with a reason for why the case should continue to the discovery stage. It seems like a tactical error and one that does not appear to understand the jurisprudence surrounding Section 230. It glibly presumes that Section 230 applies to any situation involving a platform hosting content, and that simply isn't correct. While we have encouraged it to be liberally applied to platform situations, it obviously is not always, and sometimes even for good reason.


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  • icon
    Stephen T. Stone (profile), 27 Oct 2017 @ 1:51pm

    Trump Campaign Manages To Make Things Worse

    Fixed that for you.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 27 Oct 2017 @ 2:17pm

    Campaign states Wikileaks cannot be in conspiracy because both lawful and legal.

    That seems nailed down. This person tries to dodge implications on the point, but has to allow it'll carry.

    I move on to: "But the bigger issue is whether Wikileaks is just a platform merely hosting information others have provided," -- because I have an ax for that grindstone. I've often made that point with regard to Techdirt, which is a partisan blog. It's been ignored / contradicted.

    and: "but at a certain point courts become unwilling to regard the platform's interaction as editorial and instead find it to be authorial." -- As I've also stated.

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 27 Oct 2017 @ 2:18pm

      Re: Campaign states Wikileaks cannot be in conspiracy because both lawful and legal.

      Techdirt not only lacks "good faith" in (I euphemize for minimum contention) hampering critics by blocking their home IP addresses and allowing its fanboys to harass and insult dissenters, explicitly dismissing vile attacks as "a joke", but it's explicitly -- ardently -- partisan.

      However, I do note that of late, NO problems getting my comments in. I can't tell whether Techdirt is desperate for comments or has adopted less stringent blocking.

      And being partisan, Techdirt won't offer me any place to set a hook. I won't get least admission of having been right yet again (with this person stating exactly what I have), but this will all be forgotten tomorrow, and back to asserting that Techdirt / Google / Facebook can exercise total and arbitrary control over "platforms", and that users have no First Amendment Right.


      Now: "relationship between the campaign and Wikileaks, which the campaign would appear to not want" -- Assumes there IS some relationship. My bet is NONE. If there's TOTAL separation, then the campaign doesn't care beans, see? Like the Trump-Russia allegations (that were echoed here for months), the only evidence is assertions from outsiders who are utterly biased against Trump and just WISH could find some basis for it.

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

      • icon
        Stephen T. Stone (profile), 27 Oct 2017 @ 2:40pm

        Re: Re: Campaign states Wikileaks cannot be in conspiracy because both lawful and legal.

        Save for Techdirt staff, none of us are owed a space in these comments. Quit whining about the unfairness of it all and try contributing to a mature, reasoned, insult-free conversation for once.

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

      • identicon
        Anonymous Coward, 27 Oct 2017 @ 3:54pm

        Re: Re: Campaign states Wikileaks cannot be in conspiracy because both lawful and legal.

        You think you're far more important than you are. Let me help you out:

        There are roughly 3.8 million active internet users*. You represent 0.0000263157895% of that total. Nobody gives a rat's severed glutes about you or your ideas. Nobody here (or likely anywhere else) is out to get you. Nobody is scheming to deprive you of your voice.

        Stick to the facts and someone might start to care. Until then you're just a bag of noise with a hole in it.

        * https://www.statista.com/statistics/617136/digital-population-worldwide/

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

      • identicon
        Anonymous Coward, 27 Oct 2017 @ 6:47pm

        Re: Re: Campaign states Wikileaks cannot be in conspiracy because both lawful and legal.

        Your fellow troll, who whines on your behalf, believes that Trump is in fact Russia's candidate. He claimed as much when whining over the fact that Russia's site-blocking department happened to be corrupt. What, can't you anti-Techdirters get your stories straight or something? At least try to feign some level of competence, seriously.

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

      • identicon
        Isma'il, 29 Oct 2017 @ 12:01pm

        Re: Re: Campaign states Wikileaks cannot be in conspiracy because both lawful and legal.

        And I suppose that Special Prosecutor Mueller was just coincidentally appointed to investigate Trump's shenanigans because the only evidence for malfeasance is, "assertions from 'outsiders' who are utterly biased against Trump?"

        Sorry, but that's not how criminal investigations work, fella. There has to be evidence to support the appointment of Mueller to investigate this stuff, and Trump's admissions in the past via Twitter (firing Comey to stop his investigations, and the "weighing in" about Trump Jr's explanation of the meeting with a Russian lawyer last June are just a couple examples) certainly don't help Trump to try to clear his name.

        Fact of the matter is that Trump, through ignorance or stupid bravado, has stepped on his own genitalia repeatedly on Twitter and other media so much that the White House is continually in damage-control mode.

        Hate to burst your bubble, fella, but sometimes the truth hurts.

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

    • identicon
      Cowardly Lion, 27 Oct 2017 @ 2:45pm

      Re: Campaign states Wikileaks cannot be in conspiracy because both lawful and legal.

      "I've often made that point with regard to Techdirt, which is a partisan blog. It's been ignored / contradicted."

      I have to take issue with your view; I just don't see that kind of bias in the stories posted here. You could possibly argue that the spread of commentors lean a particular way, but that of course is not Techdirt, just it's audience.

      Also, I post here from many, many ip's, VPNs & proxies. Only via ToR do I sometimes see my comments held for moderation. Never have I been blocked.

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

      • identicon
        Thad, 27 Oct 2017 @ 3:07pm

        Re: Re: Campaign states Wikileaks cannot be in conspiracy because both lawful and legal.

        Don't try to reason with him. It doesn't work. Flag and move on.

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

    • icon
      Mike Masnick (profile), 28 Oct 2017 @ 1:01am

      Re: Campaign states Wikileaks cannot be in conspiracy because both lawful and legal.

      I've often made that point with regard to Techdirt, which is a partisan blog.

      Ok, ok, I'll bite. Which "party" do you think we're partisan to?

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

  • identicon
    Anonymous Coward, 27 Oct 2017 @ 2:26pm

    Trumpers hate section 230...

    except when they want it to apply to them.

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

  • icon
    That One Guy (profile), 27 Oct 2017 @ 4:44pm

    Wait a tic...

    Are you saying that loudly yelling 'Don't look behind that curtain!' isn't the best way to get people to not investigate further?

    Learn something new every day here on TD it seems.

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

  • identicon
    Personanongrata, 27 Oct 2017 @ 6:31pm

    Diving Deeper Down the Rabbit Hole

    This is the case brought against the campaign for allegedly colluding with Wikileaks and the Russians to disclose the plaintiffs’ private information as part of the DNC email trove that ended up on Wikileaks

    Has there been any evidence presented to back the allegations of collusion between the Trump campaign, Wikileaks and Russia?

    The so-called investigation is over a year old without one iota of evidence that has been uncovered.

    Feinstein: No Evidence Of Russian Collusion With Trump Campaign, But There Are Rumors

    https://www.realclearpolitics.com/video/2017/05/19/feinstein_no_evidence_of_russian_collusion _with_trump_campaign_but_there_are_rumors.html

    James Clapper: Still no evidence of any Russian collusion with Trump campaign

    http://www.washingtonexaminer.com/james-clapper-still-no-evidence-of-any-russian-collusion- with-trump-campaign/article/2622452

    There Remains No Evidence Of Trump-Russia Collusion

    https://www.forbes.com/sites/paulroderickgregory/2017/05/23/there-remains-no-evidence-of-t rump-russia-collusion/#1ba2a26e242c

    Manchin: No Evidence of Collusion Between Trump Campaign, Russia

    http://freebeacon.com/national-security/manchin-no-evidence-collusion-between-trump-russia/

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

    • identicon
      Anonymous Coward, 27 Oct 2017 @ 8:54pm

      Re: Diving Deeper Down the Rabbit Hole

      Seems like a hunt where people want to find something badly.

      Trump's an idiot who's managed to bungle a lot of his business deals (including casinos, somehow), and yet still managed to come out of them with some kind of money.

      But I still don't think it was him who conspired to discredit a presidential candidate. If it were interests on the other side who rigged the election... and it still failed because of the electoral college and not the popular vote... I'd probably do the same thing everyone else is now: bringing the idea of Russian conspiracy out into the open so that the well of ideas is already poisoned towards the other guy.

      I don't think any kind of politicians or political influencers are above anything.

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

    • identicon
      Anonymous Coward, 27 Oct 2017 @ 11:31pm

      Re: Diving Deeper Down the Rabbit Hole

      Oops looks like you spoke too soon. I’d say you were a paid troll, but if you are they aren’t getting their money’s worrh.

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

      • identicon
        Anonymous Coward, 28 Oct 2017 @ 2:51pm

        Re: Re: Diving Deeper Down the Rabbit Hole

        No, good sir, I poison my own brain with Trump-o-Love! Get yours today!

        ... Can't a person not be totally left or totally right and think all politicians are idiots parroting the same shit? :P

        I'm not anywhere near that smart or stupid to get paid for this.

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

        • identicon
          Anonymous Coward, 28 Oct 2017 @ 4:41pm

          Re: Re: Re: Diving Deeper Down the Rabbit Hole

          "Can't a person not be totally left or totally right and think "

          I sure hope so, need more people to think.

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

    • identicon
      Thad, 30 Oct 2017 @ 2:55pm

      Re: Diving Deeper Down the Rabbit Hole

      Three days later...

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


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