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 ChangeMyReputation.com, 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 Roommates.com. 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 Roommates.com, 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


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  • This comment has been flagged by the community. Click here to show it
    identicon
    O.H. Well, 8 Nov 2018 @ 3:10pm

    So Section 230 isn't an absolute shield.

    News for Techdirt, I guess.

    Neither too, is the notion that Section 230 empowers "platforms" to arbitrarily subvert the very purpose of Section 230 -- giving The Public easy access for free speech without tending to mechanical details -- yet "clearly established federal law". And after a couple more cases percolate through, it'll be clearly held that "platforms" are for The Public to make use of the Internet without either gov't OR corporate control.

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

    • icon
      Stephen T. Stone (profile), 8 Nov 2018 @ 4:32pm

      Section 230 isn't an absolute shield.

      Neither is the First Amendment. What’s your point?

      the very purpose of Section 230 -- giving The Public easy access for free speech without tending to mechanical details

      The true twin purposes of Section 230, if you could be bothered to comprehend words, are to shield platforms and their owners/operators from legal liability for third-party content that said platform owners/operators played no part in creating or helping to publish, and to give those owners/operators the right of platform moderation without facing legal liability for any given moderation choices. 230 has absolutely nothing to do with protecting “free speech” from being “censored”, at least in the way you claim it does.

      it'll be clearly held that "platforms" are for The Public to make use of the Internet without either gov't OR corporate control

      What law, statute, or court precedent says the public has an absolute right to force a privately owned and operated platform (e.g., Twitter) into giving the public unfettered and unlimited access to that platform? What do you believe qualifies as such a platform, and how does your belief change the law surrounding privately-owned platforms? For what reason should the right of the public to speak freely overrule the right of association held by the owners and operators of a privately owned platform—i.e., why should Twitter be forced to host the speech of Alex Jones?

      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, 8 Nov 2018 @ 5:10pm

        Re:

        The doctrine is "state actor" where a private company is performing a state function. Many of these "private" companies get public money or are government contractors who are considered state actors if they do $50,000 a year or more in business with the federal government.

        If the internet is a utility, then it becomes a common carrier.

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

        • identicon
          Anonymous Coward, 8 Nov 2018 @ 5:45pm

          Re: Re:

          lol

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

        • icon
          Stephen T. Stone (profile), 8 Nov 2018 @ 6:02pm

          Twitter is not the Internet. Tumblr is not the Internet. 4chan, 8chan, 420chan—not the Internet, three times over. Even if the Internet were regulated as a utility, no website on the Internet would qualify as a “common carrier”, regardless of how much you might want to force them into hosting your speech.

          And ultimately, trying to reclassify Twitter, Tumblr, etc. as “state actors” is an attempt to circumvent the First Amendment rights granted to those platforms. You would sacrifice the rights of those companies for your own speech—in which case, you would end up sacrificing your own rights if you were to ever own and operate a blog with an open comments section.

          You have the right to speak your mind without government interference; you do not have the right to force someone into giving you an audience for your speech. If this general principle has been undone by a law or a court ruling enacted within the past half-hour or so, I have yet to hear about it.

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

        • identicon
          Anonymous Coward, 8 Nov 2018 @ 8:15pm

          Re: Re:

          And if your aunt had a cock she’s be your uncle.

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

        • identicon
          Anonymous Coward, 8 Nov 2018 @ 10:53pm

          Re: Re:member when you left.

          Cite a source. Really. One source. But you can’t. Because there isn’t one. And you know it as well as I do. Do it though. Cite one real source and I will agree to never darken your door ever again.

          Do
          It
          Pussy

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    John Smith, 8 Nov 2018 @ 4:13pm

    In related news, Yelp (whose entire business model depends on Section 230) stock is down 28 percent after-hours, after a nightmarish earnings report in which it said that business owners were not as "receptive" to their calls soliciting advertising.

    As I noted before, if the platforms are immune to false-advertising lawsuits, no one can trust their advertising (or reviews). Capitalism and the free market are doing their thing as they send Yelp towards bankruptcy.

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

    • icon
      Killercool (profile), 8 Nov 2018 @ 4:25pm

      Re:

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

      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.

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

      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.

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

      • icon
        Stephen T. Stone (profile), 8 Nov 2018 @ 4:33pm

        the platforms are immune from these specific lawsuits, the people making the ads are not

        Unless the people making the ads are the platform operators, in which case you have a Backpage situation on your hands.

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

        • icon
          Killercool (profile), 8 Nov 2018 @ 4:45pm

          Re:

          That's why I said those specific lawsuits. Anything the platform owners do (or solicit others to do) is, and obviously should be, on their own heads.

          And in such a case, it also wouldn't make sense to go after the platform users, which is equivalent to prosecuting the platform owners for things the users did.

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

      • This comment has been flagged by the community. Click here to show it
        identicon
        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."

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

        • identicon
          Anonymous Coward, 8 Nov 2018 @ 6:05pm

          Re: Re: Re:

          And here I thought your magical police investigation was making some headway. Back to making impotent threats again, are we? Found a judge to avenge the great "John Smith"?

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

        • identicon
          Anonymous Coward, 8 Nov 2018 @ 8:17pm

          Re: Re: Re:

          As always the only proof proof you offer is your own impotence.

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

        • identicon
          Anonymous Coward, 8 Nov 2018 @ 9:45pm

          Re: Re: Re:

          You and the word impotent seem to really get along. I wonder why that is? 🤔

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

          • identicon
            Anonymous Coward, 9 Nov 2018 @ 12:21am

            Re: Re: Re: Re:

            It's no mystery. Johnny once claimed to have more influence in Hollywood than most writers there, and yet he can't find a girl to wet his willy. That's why he spends his time on a site that he hates instead of making YouTube clickbait which he opines as making too much money.

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

    • icon
      John Roddy (profile), 8 Nov 2018 @ 4:31pm

      Section 230 does not make anyone immune to false-advertisement lawsuits. It never has, and never will. Please find a different law to complain about. This is just getting old.

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

      • icon
        Anonymous Anonymous Coward (profile), 8 Nov 2018 @ 5:08pm

        Re:

        Expect it to get older. He/they have an agenda (and it appears that that agenda is to cause consternation to Techdirt posters). That their agenda will never get the traction they disire is of no significance. To them, the mantra repeated becomes real. The thing they miss is that it is only real for them.

        Flag and move on. Ignore irrelevance. He/they are irrelevant. Any response to them just puts kindling into the fire and there is no need, or reason, for the fire.

        They just want to tune you up. Don't let them.

        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, 8 Nov 2018 @ 5:25pm

        Re:

        Someone missed the Chicago Housing Authority lawsuit over online ads which were discriminatory, and said to be protected under Section 230.

        Yelp is down 28 percent.

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

        • identicon
          Anonymous Coward, 8 Nov 2018 @ 6:06pm

          Re: Re:

          Ah, the good old "Techdirt's Alexa's rankings are down" argument.

          And yet the fact that this site exists still makes easily triggered misogynist snowflakes like you piss your panties...

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

        • identicon
          Anonymous Coward, 8 Nov 2018 @ 8:20pm

          Re: Re:

          Someone has a full nappy and a complete lack of awareness about the current subject.

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

    • identicon
      Anonymous Coward, 8 Nov 2018 @ 6:00pm

      Re:

      So you finally get back from your 3 day psych hold Johnny?

      Them cyber-ninja-lawyer-orcas still after you?

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

  • identicon
    Anonymous Coward, 8 Nov 2018 @ 6:37pm

    "Pay-to-remove sites are not inherently extortive"

    Not sure I understand the above. In general or a specific case?

    A site obtains photos in a surreptitious manner, of the mark and proceeds to put them on the internet later demanding payment for removal.

    How is this not extortion?

    "Extortion is the crime of obtaining money or property by threat"
    https://criminal.findlaw.com/criminal-charges/extortion.html

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

    • identicon
      Anonymous Coward, 9 Nov 2018 @ 8:00am

      Re:

      Well extortion requires undue influence for the threat. A store can threaten to turn over footage of you shoplifting if you ever return. Demanding that you provide sexual services in exchange for not being arrested would be extortion and rape.

      Pay to be removed from a list of delinquent borrowers is legal - although you would have a case in turn if you weren't actually delinquent or never took a loan from them in the first place and if they just started listing people in a shakedown it would also be fraud.

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

      • identicon
        Anonymous Coward, 9 Nov 2018 @ 8:16am

        Re: Re:

        ...But, in that very specific case, you're not paying to be removed from the list, you're just paying the debt you owe, and being removed from the list as a consequence. If we let "applying pressure to collect on a debt fairly owed" as extortion, then everyone from banks to collection agencies to the government itself would be considered extortionists.

        However, I fail to see how applying the same pressure to collect on anything other than a debt fairly owed would not be extortion.

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

      • identicon
        Anonymous Coward, 9 Nov 2018 @ 9:50am

        Re: Re:

        "undue influence for the threat"
        - Your nudes published online is somehow not undue influence?

        Shoplifting and delinquent loan payments are not the same as having your nudes posted online, not sure what your point is here but it appears that you are equating things that are not even close.

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

        • identicon
          Anonymous Coward, 11 Nov 2018 @ 12:13am

          Re: Re: Re:

          Thosae are invasions of privacy, not flat-out defamation designed to ostracize someone globally.

          Yelp "won" its Section 230 case before it stock LOST 30 percent in a single session after-hours.

          We're almost at the tipping point where those who believe internet lies (spreading gossip) are as bad as those who originate it.

          When the "original publisher" is in another country or is judgment-proof, and so many moles need to be "whacked" over such a large geographic area in a short period of time, it becomes clear that the human cost of feefding money to Big Tech is too great.

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

          • icon
            Stephen T. Stone (profile), 11 Nov 2018 @ 1:03pm

            I have yet to see you coming up with a solution to the problem that allows any website that allows third-party content to continue allowing it. Forums, social interaction networks, Q&A sites like Quora—all would be shuttered in the wake of nearly any change to, or a flat-out repeal of, 230. The very comment section in which you decry “Big Tech” would be shut down if your apparent dream of repealing 230 were to become a reality.

            If someone posts allegedly defamatory content on Twitter, for what reason should Twitter be legally forced into removing that content without a court having first ruled the content defamatory? For what reason should Twitter be held legally liable for content that no Twitter employee helped create? How willing are you to shut down a large portion of the Internet because you hate the idea of legal liability being placed where it belongs?

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

  • identicon
    Anonymous Coward, 11 Nov 2018 @ 12:10am

    the world is waking up to the horrors of Section 230 thanks to the individual who was recently convicted in the cour4t-order case. The "collateral damage in the name of internet profirts" talking points are wearing thin:

    https://searchengineland.com/verdict-is-in-for-ceo-involved-in-forging-court-order-over-reputat ion-attack-307719

    "Now, there are a number of law commentators, such as Eugene Volokh, and Eric Goldman, that have essentially built a peanut gallery of responses over time in defense of Section 230, largely centered around fairly ivory-tower, academic caselaw arguments touting Section 230 immunity and corporations’ rights of freedom-of-speech. None of these pundits seems to ever also take into account the human cost of not removing false defamatory content — nor the fact that it can render it difficult to establish personal relationships, that it can ruin otherwise exemplary businesses, and that it causes severe psychological and monetary damages that may not be overcome if left unchecked."

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

    • icon
      Stephen T. Stone (profile), 11 Nov 2018 @ 11:06am

      Re:

      None of these pundits seems to ever also take into account the human cost of not removing false defamatory content

      Platforms are under no legal obligation to remove content that may be, but has not yet been ruled as being, defamatory. 230 protects the right of a platform to make that moderation choice without being hammered to hell in a court of law for making that choice. Without 230’s protections, no privately-owned platform would ever open itself to public, third-party submissions.

      The real problem in the case mentioned at that link is not 230. The problem is the person who thought the best course of action for fighting back against an attack on their reputation (regardless of the content of that attack) was to forge a court order.

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

    • identicon
      Anonymous Coward, 12 Nov 2018 @ 5:45pm

      Re:

      You're still not going to convince "females" to dip your brush for you, John.

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


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