Traverse Internet Law: Internet Lawyers

Both Sides of Section 230 Immunity

Traverse Internet Law is a private law firm, not a public interest group. So we get to argue both sides of issues since we represent clients-not causes.

In Federal Court in New York we are arguing that our client deserves Section 230 immunity from liability for third party content. And at the same time, in Federal Court in Florida we are arguing that the Defendant is not entitled to Section 230 immunity for liability arising from third party content.

It is critically important to have a balanced perspective on legal matters, and the process of framing legal arguments starts with anticipating and then understanding what the other side is going to argue. Seeing it from both sides makes our job easier. If you cannot argue the other side's case effectively, you cannot deal with your own client's positions most effectively. So when clients wonder whose side we are on, probably thinking we have a pre-defined bias like Public Citizen, the Electronic Frontier Foundation, and the ACLU, the answer is that we are on the side of our client. Whoever that client may be and whatever their thoughts or beliefs may be. At Dozier Internet Law, we don't cloud our vision of vigorously representing the best interests of our clients with our own personal beliefs. We just focus on doing the best job possible for our clients...whoever and wherever they might be.

Traverse Internet Law: Section 230 Protections Eroding

First, we previously commented on the suggestion by a Harvard professor that Section 230 changes should be considered.  Then ran headlong into a free speech debate about whether the new Federal Trade Commission guidelines creating liability for false advertising could be an exception to Section 230 immunity. The fact that Section 230 "scholars" disagree is enough to convince me that the FTC may just not like the limitations it arguably (albeit not convincingly) must abide by in enforcing online consumer fraud.

Now comes a new bill filed by Rep. Paul Kanjorski, a Dem. from Pa., which would flat out amend Section 230 immunity in cases in which an ISP knows or should know of financial securities misrepresentations by someone using its services and make ISPs liable for all resulting damages incurred by the Securities Investor Protection Corporation. 

There is clearly a move afoot. Is it that we are just realizing how overly broad Section 230 really is? 

I can hear it now...in the hearing rooms, offices and halls of Congress, when they finally realize the grossly overbroad scope of the immunity granted by Congress to scofflaws and crooks and miscreants.  

These Congressmen and Congressmadams will look at their legal counsel, tilt their head, and ask innocently and inquisitively the following:

"We did what?" 

Internet Lawyer: Domino's Pizza Video Outrage

Every Internet lawyer has a take on the video some Domino's Pizza employees made in which they were tainting food for customer consumption. Public Citizen and Paul Alan Levy are at it again, this time criticizing the legal tool used to get it off the web. Public Citizen believes it should stay up for "fair use" reasons, once again ignoring the property rights of a business and failing to understand the basics of product disparagement and defamation. 

The video is another sad example of harm a couple of derelicts can cause in the online world. While Public Citizen calls for a repeal of the DMCA, which is the copyright law used to get the video off of Youtube, as an Internet lawyer and not a biased, free speech expansionist, I suggest this is just another example of the out of control influence individual scofflaws can assert. Domino's has been harmed to the tune of hundreds of millions of dollars in all likelihood.

Amend Section 230 of the Communications Decency Act today. You can read about my thoughts on this issue of Section 230 changes in my upcoming book set to be released soon...."Google Bomb".

Internet Law: Amend Section 230 Immunity Today

Dozier Internet Law has to often remind la  wyers that there is no absolute right to online anonymity. The courts have long recognized the need to unmask those who hide behind false identities on the Internet. Those who defame, those who spam, those who hack, and in some circumstances those who use commercial speech…their anonymity is rarely protected. Legal subpoenas to a website will net the IP address of the offender, and a follow up subpoena to the ISP will identify the user of the IP address at the time of the “anonymous speech”. This usually works well when Dozier Internet Law takes this approach.

 

But ISPs usually only hold onto their records for short periods of time. And log files may get destroyed. Log files contain the IP addresses of those posting. The virtual "disappearance" of the records used to identify thieves, crooks and scofflaws is openly encouraged on the free speech organization websites of the Electronic Frontier Foundation and Public Citizen through Paul Allen Levy, a First Amendment lawyer:

 

Levy says: Another approach to preserve anonymity of posters is to adopt a “no-logging” policy, whereby storage of identifying information about visitors to the web site (and about posted(sic) to online discussions) is kept to a minimum. Technical advice effecting such limitations can be found on EFF’s web site at …

 

An amendment to Section 230 of the Communications Decency Act would seem to be in order. Let's ask Congress to require log file record retention in order for an interactive service provider to avail itself of the immunity. That seems particularly reasonable given the advice to destroy the records. By the way, the EFF guidance is even grosser than Levy's comments.