CDA 230 Doesn't Support Habeus Petition by 'Revenge Pornographer'

from the cda-230-still-not-absolute dept

As you may recall, Kevin Bollaert ran UGotPosted, which published third-party submitted nonconsensual pornography, and, which offered depicted individuals a "pay-to-remove" option. Bollaert appeared multiple times in my inventory of nonconsensual pornography enforcement actions. Bollaert's conduct was disgusting, and I have zero sympathy for him. Nevertheless, I also didn't love the path prosecutors took to bust him. The lower court convicted him of 24 counts of identity theft and 7 counts of extortion and sentenced him to 8 years in jail and 10 years of supervised release. Pay-to-remove sites are not inherently extortive, and identity theft crimes often overreach to cover distantly related activities.

Worse, the appeals court affirmed the convictions despite a significant Section 230 defense. The opinion contorted Section 230 law, relying on outmoded legal theories from Fortunately, I haven't seen many citations to the appellate court's misinterpretation of Section 230, so the doctrinal damage to Section 230 hasn't spread too much (yet). However, that still leaves open whether Bollaert's conviction was correct.

Bollaert raised that issue by filing a habeus corpus petition in federal court. Such petitions are commonly filed and almost never granted, so Bollaert's petition had minimal odds of success as a matter of math. Not surprisingly, his petition fails.

The district court says that Section 230's application to Bollaert's circumstance does not meet the rigorous standard of "clearly established federal law":

In this case, the Supreme Court has never recognized that the CDA applies in state criminal actions. The Supreme Court has never indicated circumstances that would qualify a state criminal defendant for CDA immunity. Absence of applicable Supreme Court precedent defeats the contention that Petitioner is entitled to CDA immunity under clearly established federal law...

federal circuits have not applied CDA immunity in state criminal actions or indicated circumstances that would qualify a state criminal defendant for CDA immunity. Petitioner cannot satisfy § 2254(d)(1) with district court opinions applying CDA immunity in state criminal actions.

I've routinely blogged about the application of Section 230 to state criminal prosecutions, and I even wrote a lengthy discourse on why that was a good thing. Still, I can't think of any federal appellate courts that have reached this conclusion, so perhaps the court's factual claim about the jurisprudential absence is correct.

The court adds that even if Section 230 qualified as "clearly established federal law," the appellate court ruling didn't necessarily contravene that law:

the California Court of Appeal performed an exhaustive and comprehensive analysis of the applicable circuit court decisions before concluding Petitioner is an information content provider under Roommates. The state court reasonably interpreted Roommates and Jones, and reasonably concluded that Petitioner "developed, at least in part, the offensive content on his Web site by requiring users to input private and personal information as a condition of posting the victims' pictures, making him an information content provider within the meaning of the CDA."

This passage reinforces the deficiencies of the appellate court's Section 230 discussion. "[R]equiring users to input private and personal information as a condition of posting the victims' pictures" is not the encouragement of illegal content, as referenced by, as that information isn't actually illegal; and the Jones case rejected an "encouragement" exclusion to Section 230 while ruling for the defense. Do those deficiencies support the extraordinary relief of habeus corpus? Apparently not.

Reposted from Eric Goldman's Technology & Marketing Law Blog

Filed Under: cda 230, extortion, kevin bollaert, revenge porn

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  1. This comment has been flagged by the community. Click here to show it
    John Smith, 8 Nov 2018 @ 5:23pm

    Re: Re:

    "Once again, the platforms are immune from these specific lawsuits, the people making the ads are not."

    Not all immunity is statutory: many are judgment-proof (sometimes paid by those who are not), in other countries like Russia, or it's a group that salami-slices the bigger crime into fifty or more posts from all over the world that have to be actioned within the statute of limitations or they wind up archived forever. Eliminating the single-publication rule wouldn't hurt.

    Search engines aren't even required to de-list defamatory archives even with a court order. The original poster can be anonymous and using remailers or "burner" wi-fi.

    "Newspapers are also immune from false advertising charges (if they didn't create the ads), but the company that says their health drink cures cancer is not."

    Citation? Not sure on that one. They are not immune from fair-housing or employment violations. Distributors of defamation offline face a notice-and-takedown scheme.

    One way to curb the damage would be to expand libel laws to include anyone who takes an adverse action based on defamation such as with employment. "Your Honor, we didn't hire this person because someone on 4chan hates him" shouldn't be legal. BTW, landlords and their ex-con contractors are internet-searching tenants and finding DOXes plus they track the love lives of female tenants. The danger or the damage to females who live in big buildings in big cities is not even likely to be recognized. Section 230 is putting people in danger and all some say is "But, Google..." Europe is a half-century ahead of us on "section 230" type laws. T hey have none.

    In India, vigilantes murdered several people based on internet lies. Again, the damage is ignored by th9ose who say "But, the internet..."

    "Ford is immune from charges of robbing the bank, the getaway driver is not."

    If Ford designed a car specifically for drag racing and marketed it as such the immunity would be tested. THey use the law aqs a shield, not a sword. People who hunt down "dirt" and repost it are using Section 230 as a sword.

    It's possible to adapt to Section 230: just use a generic name, move every three months, don't talk to strangers, don't trust anyone, keep all information private, and keep dossiers on literally everyone with whom you cross paths on the internet, deep-diving in cases where people start acting wrong. All defensive. Very easy way to live actually and let the other people get destroyed by risk they don't even see (like female tenants in large apartment buildings in big cities).

    That you might call me paranoid for living this way bothers me not at all, since I've already seen the damage done to people who ignore the risks they can't even comprehend. That's Darwinism weeding out the stupid.

    "Rust-Oleum is immune from charges of vandalism, the person who drew a giant penis on the wall of City Hall is not.
    It's not difficult: the people who actually break the law are the ones at risk, not the person who made the tool."

    Basic product liability is not comparable to how search engines amplify defamation and destroy (or attempt to destroy) individuals.

    How much did the attacks on Tucker Carlson['s home cost the government? Every one of those protestors should be sanctioned, if only with a warning (deterrence is cheaper than punishment). The California shooter was assaulted in a bar in 2015 and probably thought no one cared.

    Perhaps "saying mean things" was a tribute to the First Amendment in the era where those words had a small sphere of influence, but in 2018, with everything global and archived, this no longer applies.

    Section 230 is doomed the moment the "wrong" person is targeted by someone who relies upon it for immunity. This aolready happened with Revenge Porn. People are now calling it the "you can do no wrong law."

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