As Old West gunslingers and a lost generation of Russian idealists might have said about anarchy, enjoy it while it lasts. Sooner rather than later, law and order is going to muscle in.
Courts don’t care for laws that send mixed messages. Addressing the contradictions that drip from Section 230, Frank Easterbrook, chief justice of the Court of Appeals for the Seventh Circuit here in Chicago, has strongly suggested on more than one occasion that the courts should take a rag to it and wipe it clean.
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Back in 2003 Easterbrook heard a case called Doe v. GTE, which involved the marketing of videos of naked college athletes surreptitiously recorded in their locker rooms. In addition to the marketers, the jocks sued GTE Corporation and a couple of other companies that had provided the marketers with Internet access and Web-hosting services. A federal judge dismissed the claims against the Web hosts; a three-judge panel heard the appeal and Easterbrook wrote the unanimous opinion. Observing that the plaintiffs were in “pursuit of the deep pockets,” he showed little sympathy for their case. But it interested him that the district court had ruled against the plaintiffs on grounds that the Web hosts were protected by Section 230 of the CDA. Easterbrook had a few things he wanted to say about that law, and he took the opportunity.
If Web hosts aren’t damned if they do and aren’t damned if they don’t, Easterbook figured, then they won’t, because “precautions are costly, not only in direct outlay but also in lost revenue from the filtered customers.” So here, in his view, was a so-called decency act that encouraged indecency. To take care of that, Easterbrook volunteered a fresh way of reading the law.
Easterbrook had blazed a trail, and District Court judge Amy St. Eve followed it. She allowed that “near unanimous case law holds that Section 230(c) affords immunity to [Internet connection sharers] against suits that seek to hold an ICS liable for third-party content.” She called Zeran v. America Online, a 1997 case, the “fountainhead of this uniform authority,” and she granted that “virtually all subsequent courts” have concluded that §230(c)(1) “offers ICSs a ‘broad,’ ‘robust’ immunity.”
But what about the next time Craigslist found itself in the dock? We know the answer to that. Last year Craigslist received a letter from the attorneys general of 40 states demanding that it clean up its “erotic services” section, and in April a Boston woman who advertised massage services on it was murdered. Rather than wage a Section 230 defense, Craigslist caved, cleaned up the site, and promised to police it.
