Nov 042017

The following post originally appeared on Techdirt on 10/27/17.

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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