Washington State Court Confused By Section 230, Says Backpage May Be Liable For User Posts
from the because-we-said-so dept
What is it about state courts where they seem much more confused by the law than federal courts? The latest is a horrifically confused ruling out of Washington State's Supreme Court, basically handwaving its way past nearly all caselaw on Section 230 of the CDA. That law makes it clear that online service providers are not liable for actions/content of their users. This was a key purpose behind the law, which Congress passed to make sure that people couldn't file frivolous lawsuits targeting service providers, rather than the actual users who broke the law. It's a good and extremely important law in the development of the internet, having helped stop numerous frivolous lawsuits, but more importantly, for providing strong protections that made it possible for many internet services to exist in the first place. And, yet, every once in a while, a court seems to miss all of this, and today that court is the Washington State Supreme Court, ruling that Backpage.com may be directly liable for the fact that one of its users used the service to engage in sex trafficking with young girls.Let's start by making one thing clear: the trafficking of these girls is horrific and one hopes that all legal recourse is being used against those who actually were engaged in the trafficking. But targeting Backpage makes no more sense than targeting Ford because one of its cars was used as the getaway vehicle in a bank robbery. And yet... the court rules otherwise. And it doesn't give any good reason at all, other than because it said so. The court doesn't ignore Section 230. It properly notes that Section 230 protects service providers, but not those who develop the content. And then it decides that Backpage may have created rules that "induce sex trafficking," and thus it could be seen as developing the content. Here's the key part of the ruling:
Viewing J.S. 's allegations in the light most favorable to J.S., as we must at this stage, J.S. alleged facts that, if proved true, would show that Backpage did more than simply maintain neutral policies prohibiting or limiting certain content. Those allegations include that (1) "Backpage.com ... has intentionally developed its website to require information that allows and encourages ... illegal trade to occur through its website, including the illegal trafficking of underage girls," (2) "Backpage.com has developed content requirements that it knows will allow pimps and prostitutes to evade law enforcement," (3) "Backpage.com knows that the foregoing content requirements are a fraud and a ruse that is aimed at helping pimps, prostitutes, and Backpage.com evade law enforcement by giving the [false] appearance that Backpage.com does not allow sex trafficking on its website," (4) "the content requirements are nothing more than a method developed by Backpage.com to allow pimps, prostitutes, and Backpage.com to evade law enforcement for illegal sex trafficking, including the trafficking of minors for sex," ( 5) Backpage' s "content requirements are specifically designed to control the nature and context of those advertisements so that pimps can continue to use Backpage.com to traffic in sex, including the trafficking of children, and so Backpage.com can continue to profit from those advertisements," and (6) Backpage has a "substantial role in creating the content and context of the advertisements on its website." ... According to J.S., Backpage' s advertisement posting rules were not simply neutral policies prohibiting or limiting certain content but were instead ~'specifically designed ... so that pimps can continue to use Backpage.com to traffic in sex." ...In short, because the plaintiffs claim that -- even though Backpage's terms of service directly state that you are not allowed to use the service for illegal activities such as trafficking or prostitution -- because they believe Backpage really wants that, it means that it's somehow crossed the line and helped to "develop" the content. That's bizarre and legally wrong. I imagine this will reach a federal court which will destroy this decision.
Given J. S. 's allegations, it does not appear "'beyond a reasonable doubt that no facts exist that would justify recovery"' in this case, and, therefore, dismissal of J.S.'s claims under CR 12(b)(6) is not appropriate.... It is important to ascertain whether in fact Backpage designed its posting rules to induce sex trafficking to determine whether Backpage is subject to suit under the CDA because "a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct." ... Fact-finding on this issue is warranted.
There's a concurring ruling from Justice Charles Wiggins that is even more confused and completely misreads Section 230 and the volumes of caselaw that make it clear that 230 grants full immunity to service providers. Wiggins insists that's not true. Because he's wrong.
I write separately to emphasize that this holding implies that the plaintiffs' claims do not treat Backpage.com as the publisher or speaker of another's information under the Communications Decency Act of 1996 (CDA), 47 U.S.C. § 230(c). The dissent misreads this statute to provide "immunity" to '"interactive service providers.'" Dissent at 1. This reading is irreconcilable with the actual language of the statute, which does not include the term or any synonym of "immunity." Subsection 230(c)(1) instead provides a narrower protection from liability: the plain language of the statute creates a defense when there is (1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker of information (3) that is provided by another information content provider.This is just wrong. It's a really twisted reading of Section 230 that no court has made before. Wiggins is trying to argue that they're not blaming Backpage for the sex trafficking, but merely for the rules that induce sex trafficking (even though the company goes way beyond what's legally necessary to insist that no sex trafficking is allowed on the platform). Basically, he's arguing that if people think you mean one thing, but say another, Section 230 safe harbors might no longer apply to you. Because.
Thus, when the cause of action does not treat an intermediary as a publisher or speaker, subsection 230(c)(1) cannot be read to protect that intermediary from liability. Plaintiffs' claims that Backpage.com created ucontent rules" specifically designed to induce sex trafficking and evade law enforcement do not treat Backpage.com as the publisher or speaker of another's information. Accordingly, I join the majority opinion.
There's a strong dissent from Justice Sheryl Gordon McCloud pointing out how ridiculous it is that things got this far.
The majority holds that J.S.'s complaint would support a claim that Backpage functions as an "information content provider" because it alleged that Backpage maintains content requirements for advertisements posted on its website that surreptitiously guide pimps on how to post illegal, exploitative ads. But J.S.'s complaint clearly alleges that another content provider, not Backpage, provided the content for the advertisements. J.S. thus seeks to hold Backpage liable as a publisher or speaker of that information. Subsection 230(c)(l) therefore bars J.S.'s claims.That dissent also trashes Wiggins' attempt to parse a difference between "immunity" and a more limited liability protection:
Given the allegations in this particular case, the difference in terminology is irrelevant. The question is how far the subsection 230( c )(1) protection reaches, and courts interpreting subsection 230(c)(1)'s language uniformly hold that its protection for publishers is "quite robust." They apply an expansive definition of '"interactive computer service provider"' and a rather restrictive definition of "information content provider." Carafano v. Metrosplash.com .... They hold that the law provides immunity if the plaintiff alleges that the defendant violated a duty deriving from the defendant's status or conduct as a publisher or speaker. Barnes v. Yahoo!... As long as a third party "'willingly provides the essential published content, the interactive service provider receives full immunity regardless of the specific editing or selection process."' Corbis Corp. v. Amazon.com.... The inquiry is whether the defendant "function[ed] as an 'information content provider' for the portion of the statement or publication at issue." Carafano...; see also Nemet Chevrolet, Ltd. v. Consumeraffairs.com ... (affirming district court's dismissal of complaint where plaintiff failed to show that defendant "was responsible for the creation or development. of the allegedly defamatory content at issue").The dissent further notes that the majority decision mistakenly takes J.S.'s assertions that Backpage is the developer of content as true, even though it's clearly not the case under the law:
This allegation-that Backpage designed its posting rules to induce sex trafficking-might prove true. Indeed, we presume it is true when evaluating the sufficiency of J. S. 's complaint. But adopting such posting rules still does not make Backpage a "content provider" within the meaning of the CDA, even under the Ninth Circuit case upon which J.S., the majority, and the concurrence place principal reliance....It seems highly likely that Backpage will appeal and will win.
In fact, courts have consistently rejected the contention that defendants "develop" content by maintaining neutral policies prohibiting or limiting certain content. For example, in Dart v. Craigslist... which the majority cites at 7, the plaintiff claimed that even though Craigslist, an Internet classifieds service, prohibited illegal content on its website, users frequently posted ads promising sex for money.... Consequently, the plaintiff asserted that Craigslist "ma[de] it easier for prostitutes, pimps, and patrons to conduct business." ... A federal court in Illinois dismissed the claims... explaining, "Plaintiffs argument that Craigslist causes or induces illegal content is further undercut by the fact that Craigslist repeatedly warns users not to post such content. While we accept as true for the purposes of this motion plaintiffs allegation that users routinely flout Craigslist's guidelines, it is not because Craigslist has caused them to do so. Or if it has, it is only 'in the sense that no one could post [unlawful content] if craigslist did not offer a forum."' ... see also Chi. Lawyers'... ("Nothing in the service craigslist offers induces anyone to post any particular listing."); Roommates, ... ("To be sure, the website provided neutral tools, which the anonymous dastard used to publish the libel, but the website did absolutely nothing to encourage the posting of defamatory content-indeed, the defamatory posting was contrary to the website's express policies.")....
The facts in Dart are analogous to the facts here. J.S. alleges that pimps-not Backpage-created and uploaded the ads at issue... ("adult pimps ... posted advertisements for the girls") ... ("adult pimps ... create[ d] ... and then uploaded [the] advertisements of S.L. onto . . . Backpage.com"). Nothing in Backpage's policies obligated users to flout Backpage's express content requirements or to post unlawful content. J. S. 's allegations indicate that the pimps chose the content ultimately used in the advertisements.... The actual "information" at issue consisted of the particular wording and photos that the pimps provided....
Thus, holding Backpage liable would punish it for publishing third party content, and the CDA prohibits such liability.
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Filed Under: cda, immunity, liability, safe harbors, section 230, trafficking, washington
Companies: backpage, backpage.com
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"ruling that Backpage.com may be directly liable" -- So, your position is NO possible facts could make that "may be" an IS?
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Re: "ruling that Backpage.com may be directly liable" -- So, your position is NO possible facts could make that "may be" an IS?
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Re: Re: "ruling that Backpage.com may be directly liable" -- So, your position is NO possible facts could make that "may be" an IS?
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Thnink about it
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Re: "ruling that Backpage.com may be directly liable" -- So, your position is NO possible facts could make that "may be" an IS?
Do you have a citation for that involving information services?
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Re: "ruling that Backpage.com may be directly liable" -- So, your position is NO possible facts could make that "may be" an IS?
"and of not seeing comments the fanboys have censored?"
And if trolling behaviour is OBVIOUS, businesses (even Techdirt) have a positive duty to act as police and put an end to the trolling. We don't want Techdirt to fail to act on trolling behaviour now do we. RIGHT.
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Re:
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The dissent states that courts have consistently rejected the contention that defendants "develop" content by maintaining neutral policies prohibiting or limiting certain content.
But that's not what the plaintiff is alleging. And unlike the craigslist case referenced, they're not alleging that Backpage ignores people who violate their policy. They're alleging that Backpage's policies aren't neutral but were written specifically with the intent of encouraging sex trafficking. And the court is obligated to accept this as true in an application like this, where a defendant is trying to get claims thrown out before a trial and before any evidence has been submitted.
I don't think Backpage's policies ARE written with that intent, and I have every confidence Backpage will win on the merits, but I don't think the court was wrong to find as they did in this application.
With that said, I also don't understand what point Wiggins was trying to make with his bit about the use of the word "immunity".
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Re:
One little extra "h" can really change a sentence.
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Immunity [was Re: ]
Now Justice Wiggins says, a little bit earlier in his opinion:
What it looks like he's missing is 47 U.S.C. 230(e)(3)(Emphasis added again.)
Scanning quickly back through the first page of the dissent, it doesn't look like Justice McCloud brings up (e)(3) there, either.
I'm just finishing up my first reading through the briefs, and I've only really read the opinions about one-and-a-quarter times. I'm not quite sure yet whether it's that the Justices apparently focused on (c) to the exclusion of (e), or whether it's appellant's argument that does that.
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Re: Immunity [was Re: ]
Interestingly, Justice Wiggins begins his concurrence with:But that's not how I'm (preliminarily) reading things. He's agreeing with their result, but I don't see how he's agreeing with their holding.
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Re: Re: Immunity [was Re: ]
Maybe he agrees with the majority that the scope of CDA immunity controls the whether appellee's complaint should be dismissed on a C.R. 12(b)(6) motion. But he then turns around and says that the plain words of § 230 provide no “immunity” whatsoever, so therefore appellant's 12(b)(6) motion was properly denied in the Superior Court.
But, I'm still not quite sure that's really reconcilable with the rest of the majority opinion.
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Re: Immunity [was Re: ]
Justice Wiggins: But § 230(e)(3)(Emphasis added in another place.)
When the courts read a statute, the courts attempt to give effect to all of the statute. The courts presumes that Congress does not include superfluous words or phrases.
It's very clear that (e)(3) does more than insulate from liability. See that word “and” there? It's necessary to give effect to “[n]o cause of action may be brought”, beyond just providing a defense to imposition of liability. The two sides of the conjunction are not merely redundant.
“Immunity”, especially in the qualified immunity context, is immunity from suit. Just compare “immunity from suit” with “no cause of action may be brought.”
Now, Justice Wiggins did provide a citation for his reading that § 230(c) contains no term or synonym of “immunity”. But his authority is a case where Judge Easterbrook was applying the CDA in the context of a claim brought under the federal Fair Housing Act (42 U.S.C. § 3601 et seq). Do you see where § 230(e)(3) says “State or local law” ? The federal FHA is not state or local law. In the case Easterbrook faced, (e)(3) didn't apply at all.
Do you think Justice Wiggins didn't spot this? Maybe he didn't feel like spotting these points.
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Mental Fails Lead to Bad Responses
Scale
I think the problem many people have with understanding the need and meaning of Section 230 is that they do not grasp the scale of what is happening.
When sites like Craigslist and Backpage are described to these judges and LEOs, they envision newspaper classifieds of yore. In that case, a human employee received the ad and gave it at least a cursory look before publishing. In such a case, spotting an illegal or questionable ad was easy, and other humans reviewed and decided to publish or not. The Internet smashes such a concept with sheer volume. There is almost no way for a human to review the tsunami of ads that are placed. Keyword and phrase filtering can help a little, but the unending reach of euphemism, nuance, and inside code will always be far ahead of any attempts at automated systems.
Judges like these simply cannot believe that there isn't a human somewhere in the bowels of Backpage/Craigslist/etc., that is reading and approving these messages, knowing full well what the content is. It is this failure of understanding that motivates them to try and wrestle the Section 230 to not apply in the case.
Context
When dealing with the above mentioned use of euphemism and code words, the problem of context rears it's head.
When a judge, DA, or LEO is presented with a case of child exploitation, that is their context. Seeing a posting from said exploiter talking about 'fresh product', s/he immediately assumes the meaning of the euphemism, probably correctly. That leads to the accusation that the website should know that 'fresh product' means child prostitutes and act accordingly.
What they fail to do is step out of their world and into the site provider's perspective. For them, they may have 100,000 messages in the last 18 months that reference 'fresh product', and only 100 of them are talking about child prostitutes. With that in mind, how could they possibly pick out that 1 in 1,000 meanings and act upon it with any certainty? Further, if they were to start scrutinizing and/or blocking references to 'fresh product', the exploiters would just start using another euphemism, and the cycle starts all over.
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Washington Supreme Court Case Briefs
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They are a shit hole.
The judges are ridiculous political activists.
You need a good amount of luck to survive them.
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Re: "I feel like none of you know the reality..."
What is the use of your comment past "venting" about some personal unrevealed previous perceived "injury" by the Court? Care to share?
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Re: Re: "I feel like none of you know the reality..."
Then why did you take the time to share yours?
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Why not go after the source
But this is the same mentality that EU officials had when they told Google to "forget" articles. Yet the articles are still there! Why not go to the source of the problems?
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Because they don't care about the source, only themselves
It's easy to go after the site, and brushing the problem under the rug takes only a small amount of trouble while providing plenty of PR opportunities they can use for later about how they're 'tough on crime'. Going after the source of the problem though, that takes work, isn't nearly as quick, and doesn't provide nearly as much PR opportunities.
As a result, in a choice between solving the problem, or brushing it under the rug and claiming to have solved it because it's no longer visible, they will chose the later almost every single time.
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stade courts
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Interesting, he said.
While there are a number of good legal arguments that lead back to section 230, every one of them is based on backpage being only a service provider who has no control over the content. The reality is that Backpage has a specific series of rules and regulations and continues to support and adult section and adult ads. It's reasonable to assume that Backpage knows the types of services being offered. A cursory glance at their adult section is enough to prove that.
That backpage has gone out of their way over the years to support these adult ads, and that they make a significant amount of their total income from them perhaps is also a little bit telling.
I don't think the case will succeed, but it's an interesting swing at the fences. It does perhaps point out that section 230 protects are a bit over broad, and have seemingly expanded to cover all sorts of businesses that might not have been included in the original intent of the law.
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Active participation vs Passive participation
I'm not seeing it myself. Providing a platform, and providing rules for the platform doesn't really rise to the level of being an active participant with regards to determining the content on the platform, versus just allowing it to be posted.
If they were shown to accept or decline individual posts, checking them before allowing them to be posted, I could see them being liable for the content posted, as they choose what is being posted essentially.
On the other hand, if they take a passive role, providing the platform, providing the rules for the platform, and only getting involved when informed of someone breaking the rules, I can't see them being realistically liable, as they don't really have any control over the content other than removing it or trying to block certain individuals from posting again.
It's similar to the difference between a phone book and a search engine(ignoring for the moment the matter of scale). One actively chooses what to allow, while the other passively allows everything. One only lists what they have vetted, allowing them to control what's listed, while the other lists everything, and only controls what isn't listed.
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Re: Active participation vs Passive participation
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Re: Active participation vs Passive participation
Stratton Oakmont v Prodigy (N.Y. Sup. Ct. 1995)(Citations omitted.)
That history is briefly sketched in Zeran v AOL (4th Cir. 1997).
In short, you could see a distinction between publisher and distributor liability, based on the party's knowledge and editorial control?
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Re: Interesting, he said.
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Re: Re: Interesting, he said.
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Re: Interesting, he said.
In theory.
Lately, the Washingto state Supreme Court has contempt for the state legislature. Now, I don't believe the justices are quite crazy enough to hold the U.S. Congress in contempt…
But are you saying that it looks to you like the court isn't just deciding this present case on it's peculiar facts? Are they interpreting the CDA —or rewriting it? What kind of “clear attempt” is it again?
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Re: Re: Interesting, he said.
It's not unreasonable to consider that 230 exemptive status wasn't created with the current applications in mind. The Wyden-Cox amendment is sadly very unclear in this area, and as a result, many companies who would otherwise be publishers in the physical world are suddenly exempt in the online world. Backpages may be a computer service, but it's also a publishing system akin to a "free ads" weekly inky.
So the question becomes one of separating out the pure technical service (such as a BBS) from content selected and accepted for publication on a given website, similar to that of printing a newspaper or creating a television show.
I think that the court went a long way (some would suggest too far) down this road to try to create legal distinction, where few seem to have gone before. The "Clear attempt" I mention is them actually dealing with the law and trying to come up with a ruling that defines the difference between two different acts, service providing and publishing.
There is plenty of desire by tech companies to shuck any responsibility and claim only to be an innocent provider. However, I feel that as we move forward, more and more cases will be made where the "real world" and "online world" services will be compared, and the courts will conclude that not everything is just an innocent transparent service provider, and rather a publisher, maintainer, and editor of the content that appears online.
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Re: Re: Re: Interesting, he said.
That said, I've noted appellant's contention (pp.6-7) that appellees misjoined defendant Hopson as a sham to defeat federal diversity jurisdiction. A case that a Pierce County Superior Court judge thinks is “right on the line” under Washington's CR 12(b)(6) standard most probably goes the other way under post-“Twiqbal” FRCP 12(b)(6). But, of course, the federal court's remand is not at issue in this Washington decision. One must presume the matter is properly in the Washington state courts.
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Politics
If Justice Wiggins mis-read § 230 to neglect (e)(3), was that a good-faith mistake? He just flubbed reading beyond (c)? Or did he see that the appellant had perhaps made an omission in their argument, that would allow him in good conscience to spin the decision against “immunity”?
It's premature to conclude that Justice Wiggins reciprocated what he might potentially have seen as appellant's overall bad faith conduct. Indeed, I'm slightly hesitant to even suggest it publicly. But, based on what I've seen so far, that possibility has crossed my mind. In other casees, in other courts, I've certainly seen outcomes that I've strongly suspected were like that.
Is it any good for the law, if a state supreme court justice applies “justice” in that rough-handed fashion?
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Re: Politics
He would then essentially be saying that if appellant is going out in the world, acting in bad faith, then the court can indeed also act in bad faith. But at least he, Justice Charles K. Wiggins, is not going to obscure what the court is doing behind some opinion which may mislead the well-educated readership of the decision.
If that, though, is the case, does it matter that the public, with varying levels of reading sophistication, may be terribly confused?
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