The Court's Own Words: Life Without Title II Has Online Discrimination, Paid Prioritization, Exclusive Deals, And Maybe Blocking

from the it's-not-like-it's-secret dept

To hear Tom Wheeler and most of the big broadband players explain the net neutrality situation, the appeals court decision back in February laid out a "roadmap" for the FCC to continue to use Section 706 for its open internet rules. But that's not actually true. It's a clear misrepresentation of what the court actually said.

The language of the Verizon decision by the DC Circuit court is pretty clear: unless the FCC rests its rules in Title II of the Communications Act, the FCC must permit the carriers to engage in discrimination, charge access fees, cut exclusive deals, and perhaps block websites. Despite this, the FCC is proposing to use Section 706 (again), rather than Title II, and the court already ruled that Section 706 does not authorize network neutrality in January.

To begin, without Title II, the FCC cannot treat broadband providers as "common carriers."

We think it obvious that the Commission would violate the Communications Act were it to regulate broadband providers as common carriers. Given the Commission's still-binding decision to classify broadband providers not as providers of “telecommunications services” [under Title II] but instead as providers of “information services,” … such treatment would run afoul of section 153(51): “A telecommunications carrier shall be treated as a common carrier under this [Act] only to the extent that it is engaged in providing telecommunications services.”

So, what does it mean to regulate broadband providers as common carriers? It means to impose any rule against discrimination or requiring providers to charge similar prices to similarly situated parties.

“[I]f a carrier is forced to offer service indiscriminately and on general terms, then that carrier is being relegated to common carrier status.” … Given these principles, we concluded that [a specific earlier rule concerning data roaming] imposed no per se common carriage requirements because it left “substantial room for individualized bargaining and discrimination in terms.”

If the FCC must permit "substantial room for … discrimination in terms" without Title II, then it cannot ban unreasonable discrimination.

The Court also said that the FCC cannot ban paid prioritization under Section 706. That’s because, under any provisions other than Title II, the FCC cannot require the broadband providers to effectively charge websites the same price of zero not to be blocked.

[W]ith respect to broadband providers’ potential negotiations with edge providers, the [2010] Order ominously declares: “it is unlikely that pay for priority would satisfy the ‘no unreasonable discrimination’ standard.” … If the Commission will likely bar broadband providers from charging edge providers for using their service, thus forcing them to sell this service to all who ask at a price of $0, we see no room at all for “individualized bargaining.”

Remember, "substantial" room, not "no room at all," is required when imposed on a carrier not subject to Title II. Therefore, under Section 706, without Title II, the FCC cannot ban access fees imposed by cable and phone companies.

Moreover, Section 706 also requires exclusive deals.

For example, Verizon might … charge an edge provider like Netflix for high-speed, priority access while limiting all other edge providers to a more standard service. In theory, moreover, not only could Verizon negotiate separate agreements with each individual edge provider regarding the level of service provided, but it could also charge similarly-situated edge providers completely different prices for the same service. The FCC might not even be able to ban blocking under Section 706.

The Verizon decision said: "Whether the [2010] Order's anti-blocking rules, applicable to both fixed and mobile broadband providers, likewise establish per se common carrier obligations is somewhat less clear [than the anti-discrimination rule]." But it still struck down the anti-blocking rule. The decision merely stated that the FCC may have tried to defend the anti-blocking rule on other grounds, but said "whatever the merits of that view," it did not need to address it. So the anti-blocking rule may not be permissible under Section 706. The FCC called this discussion a "roadmap," when in reality it is not even what lawyers call "dicta," because the court did not have to consider the argument, and passed no judgment on it.

Yes, the court already said you can't do network neutrality under Section 706 and need Title II.

Why is the FCC still trying?

Tim Wu noticed similar facts unfolding in 2010, under the previous FCC Chairman Genachowski:

Genachowski grounded the rules in what is called—in legal jargon—the agency’s “auxiliary authority.” If the F.C.C. were a battleship, this would be the equivalent of quieting the seventeen-inch-inch guns and relying on the fire hoses.

What could possibly have convinced the agency to pursue a legal strategy that any law student could see was dubious? As in any big mistake, there were compounding errors. Members of Congress threatened to strip the F.C.C. of some of its powers if it enacted the rules with the full weight of its legal authority. (Indeed, Congress tried and failed to overturn the Open Internet Order.) A.T. & T. warned that it would cancel its ongoing effort to become a cable company, threatening to tar the agency with job losses. One senior F.C.C. staffer told me that it would have unduly affected the stock prices of the telecom firms. The agency also had a Kool-Aid-drinking problem; it started to believe its own legal arguments, however weak. Altogether, it was a cowardly reaction to empty political threats.

If the current FCC doesn't change course and pursue Title II, Wu could write the same paragraphs a few years from now about the current Chairman, Wheeler.

Filed Under: blocking, court, discrimination, fcc, net neutrality, open internet, paid prioritization, section 706, title ii, tom wheeler
Companies: verizon

EFF Changes Position On Net Neutrality: Recognizes FCC Must Act, But Narrowly

from the makes-sense dept

For years, the EFF has pushed back against the FCC's attempts to preserve net neutrality, reasonably worrying that it might open the door to the FCC further meddling in the internet where it had no real mandate. We here at Techdirt have been similarly concerned. As we've noted, net neutrality itself is important, but we were wary of FCC attempts to regulate it creating serious unintended consequences. However, over the past few years, the growth in power of the key broadband internet access providers, and their ability to degrade the internet for profit, has made it quite clear that other options aren't working.

Thus, the EFF has -- quite significantly -- announced that it has changed its position on the FCC's role in net neutrality, starting with Title II reclassification, combined with a strong forbearance, which effectively blocks the FCC from claiming too much power to regulate other aspects of the internet:

We want to be very, very clear: the FCC’s regulatory role should be narrow and firmly bounded. Network neutrality rules should be limited to specific prohibitions—such as blocking, discrimination among applications and prohibiting special access fees—potentially combined with a renewed “open access” requirement that would foster local competition, and no more.

Luckily, the FCC has a way to bind itself and thereby limit its own regulatory reach. It’s called “forbearance.” While forbearance doesn’t set the limits on the regulatory agency in stone as Congress could, it does require the FCC to make a public commitment that is difficult to reverse.  If it ever wants to change course, it has to engage in a contentious and tedious public process of notice and comment. We’ll have more to say about these very basic regulations in our comments on the FCC’s proposed rules, which we will also unpack in upcoming posts.

To get to a place where it can actually enforce neutrality rules and do nothing further, however, the FCC first needs to do one important thing: reverse its 2002 decision to treat broadband as an “information service” rather than a “telecommunications service.” This is what’s known as Title II reclassification. 

Part of the problem with the net neutrality fight is that there's a lot of nuance and technicalities involved. Many -- especially in the telco world -- point to the fact that Title II reclassification would grant the FCC much greater ability to regulate all parts of the internet, but they ignore the fact that basically everyone pushing for reclassification is doing so with the forbearance process in mind. And, yes, the whole forbearance process opens up a whole new avenue for potential game playing and abuse, but as the EFF is recognizing, this seems like the only real near-term solution to the current situation in which the big broadband companies are looking to hold the rest of the internet hostage.

It's worth noting that this is, in no way, an "ideal" solution. There's a tremendous amount of details and nuances involved in all of these decisions -- almost none of which you'll read about in the press (and, of course, good luck finding anything about net neutrality on TV news). The reality is that this is what we're left with after a decade or more of failed broadband policy, which has brought us to the situation today where the broadband access providers have basically set themselves up as being able to set up toll booths to doublecharge, not because of any innovation or improved service on their part, but solely by nature of themselves getting so big that they can make life difficult for internet services.

There's one other key point in the EFF's "change of heart," which is the response to anyone who claims Title II grants too much power to the FCC (leaving aside the question of forbearance). And that's that under the appeals court ruling back in February, it was made clear that the FCC already has tremendously broad powers to regulate other aspects of the internet under Section 706. As some noted after that ruling came out, while many people were talking about how the court rejected net neutrality, they may have missed how much the court broadened the FCC's powers under Section 706. The end result is that we should be equally worried about the FCC abusing 706, where its powers are dangerous and also ineffective at protecting net neutrality, while focusing on putting in place a better regime under Title II with a strong forbearance plan:

Some have said that reclassification would give the FCC too much power to regulate the Internet. That very concern is why forbearance is so important. Nor is it the case that the FCC has very limited power now—the D.C. Circuit affirmed that the FCC has broad powers to “promote competition” which could be just as vulnerable to misuse by a future FCC as any regulatory authority granted via a “common carrier” reclassification. More important than the potential breadth of power, however, is the fact that the powers that the FCC has now don’t match the real goal: protecting the neutral Internet we expect and need to flourish. Reclassification, combined as it must be with a commitment to forbear from imposing aspects of Title II that were originally drafted for 20th century telephone services and that don't make sense for the Internet, can give the FCC the right tool for the job without giving it regulatory tools it doesn’t need and may dangerously misapply.

In other words, while there are dangers of giving the FCC too much power under Title II, those can be dealt with via forbearance, while at the same time actually allowing it to protect net neutrality. Under the current system, we have the worst of both worlds. Section 706 has now been interpreted such that the FCC has powers that are too broad in regulating a variety of aspects of the internet... but without the power to actually protect net neutrality!

Given that reality, it does seem that the best path forward has to be reclassification under Title II, with clear forbearance that limits the FCC's powers under Title II to just the situations where it can prevent net neutrality abuses.

Filed Under: broadband access, competition, discrimination, fcc, forbearance, net neutrality, open internet, reclassification, title ii
Companies: at&t, comcast, eff, verizon

Chile Bans Free Delivery Of Social Media Services To Uphold Net Neutrality

from the tricky-stuff dept

Net neutrality is a hot topic on both sides of the Atlantic, but it's not only in those regions that governments are trying to formulate policies that will keep the Internet fair and open for innovation. One country at the forefront of this field is Chile, which passed its net neutrality law in 2010. Here's how how Global Voices summarized the legislation:

The reform implies, among other things, that Internet Service Providers will not be able to arbitrarily block, interfere, discriminate, hinder or restrict content, applications or legal services that users perform on their networks.

That's a pretty standard framing for net neutrality, with a prohibition on discrimination -- and that includes positive discrimination. As GigaOM reports, Chile has now taken action against this kind of preferential treatment online:

The Chilean telecommunications regulator Subtel has banned mobile operators from offering so-called zero-rated social media apps -- services like Twitter and Facebook that, through deals with the carriers, can be used without having to pay for mobile data. Subtel says such practices are illegal under Chilean net neutrality law.

That might seem perverse, since it means that Chilean mobile users must now pay to access those services, but it is nonetheless exactly what governments that have mandated net neutrality need to do. That's because providing these services for free makes it much harder for newcomers -- specifically new services from local startups -- to compete with established ones that are provided free. Indeed, it's striking how Facebook, for example, has kept its head down during the net neutrality debates -- doubtless conscious that it has benefitted hugely from these schemes that run counter to net neutrality principles. As Vox wrote recently:

One factor in Facebook's growing global popularlity is Facebook Zero. Under this program, Facebook pays the data charges for users who log into a stripped down version of Facebook from their mobile phones. The program has made Facebook accessible to millions of users who wouldn't otherwise be able to afford it.

That's clearly anti-competitive. But what about this from 2012?

Orange has struck a deal with Wikipedia to make its digital encyclopaedia available free of data charges to millions of mobile phone users across the Middle East and Africa.

Although that breaks net neutrality in the same way as Facebook Zero, Wikipedia sees it as something that should be encouraged:

Sue Gardner, executive director of the Wikimedia Foundation, the non-profit organisation that runs Wikipedia, said: "Wikipedia is an important service, a public good, and so we want people to be able to access it for free, regardless of what device they're using. This partnership with Orange will enable millions of people to read Wikipedia who previously couldn't."

That's certainly true, so perhaps there should be an exception to net neutrality for non-profits. But that would still produce the same tilting of the playing field in favor of one supplier, making it hard for a new rival to Wikipedia, say, to compete. Tricky stuff this net neutrality....

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: chile, discrimination, mobile, net neutrality, preferential treatment, zero fee, zero rated
Companies: facebook

BitTorrent Shows You What The Internet Looks Like Without Net Neutrality; Suggests A Better Way

from the change-things-around dept

If you've been following the whole net neutrality fight for a while, the following graphic may be familiar to you -- showing what a potential "cable-ized" world the internet would become without strong protections for net neutrality: At some point, someone created a similar version, that was specific to AT&T: A little while ago, however, someone took the joke even further, and set up a website for a fake broadband provider, asking people to Join the Fastlane!, and it was pretty dead on in terms of what such a site might look like: I particularly like this bit: It's now come out that this campaign (along with some associated billboards) has been put together by BitTorrent Inc., not all that different than the company's billboard campaign against the NSA. Along with this, BitTorrent has put out a blog post explaining, in part, how we got here, but more importantly how we need to start thinking about a better way to handle internet traffic to avoid the kind of future described above.

The key issue: building a more decentralized internet:

Many smart researchers are already thinking about this problem. Broadly speaking, this re-imagined Internet is often called Content Centric Networking. The closest working example we have to a Content Centric Network today is BitTorrent. What if heavy bandwidth users, say, Netflix, for example, worked more like BitTorrent?

If they did, each stream — each piece of content — would have a unique address, and would be streamed peer-to-peer. That means that Netflix traffic would no longer be coming from one or two places that are easy to block. Instead, it would be coming from everywhere, all at once; from addresses that were not easily identified as Netflix addresses — from addresses all across the Internet.

To the ISP, they are simply zeroes and ones.

All equal.

There's obviously a lot more to this, but it's good to see more and more people realizing that one of the fundamental problems that got us here is the fact that so much of the internet has become centralized -- and, as such, can be easily targeted for discrimination. Making the internet much more decentralized is a big step in making it so that discrimination and breaking net neutrality aren't even on the table.

Filed Under: centralized, decentralized, discrimination, fast lane, innovation, net neutrality, open internet, spoof
Companies: bittorrent

How The FCC Plans Neuter The Net, Even As The FCC Insists Everyone's Got It All Wrong

from the from-net-neutrality-to-a-neutered-net dept

So, we already wrote about why Tom Wheeler's "open internet" proposal is problematic, but Wheeler and the FCC are hitting back on everyone who's arguing that -- telling everyone to calm down, insisting that nothing has changed, and that they're actually trying to preserve the old "open internet" rules from 2010 that a court tossed out earlier this year.

The problem is that this is absolutely misleading -- and either the FCC doesn't realize this or it's not being honest. And, I'm not sure which one is more bizarre. Wheeler is, indeed, correct in saying that under the court ruling from earlier this year, in order to be able to do anything under Section 706 of the Telecom Act, they had to shift from talking about "unreasonable discrimination" (which they can't regulate under 706) to "commercially reasonable" activities (which they can regulate). So, in effect, Wheeler is trying to argue that by basically shifting the basis for the rules and substituting in the "commercially reasonable" standard as opposed to blocking "unreasonable discrimination" (which can be done under common carrier rules, but since the FCC reclassified broadband service as not being a telco service, that's not available), they're now back in proper legal territory under the law.

Perhaps Wheeler and his friends at the FCC think that this subtle shift in phrases to abide by the blueprint the court set out really does leave the existing rules in place. But, it's not that simple. As Stacy Higginbotham points out, even if the FCC doesn't want to destroy net neutrality, this subtle shift will do so anyway. To understand why, the best article to read is the one by Marvin Ammori, who has been fighting this fight for years. He argues that, unlike the CNET article above that says to "calm down," we should actually be even more worried. Because even if the FCC thinks it can stop net neutrality violations, companies are still going to get screwed. Basically, the FCC can only act after the fact, and then it's going to come down to a fight between a big telcos' lawyers... and a tiny startups' lawyers. Guess who wins?

The FCC will propose an incredibly vague and complicated multifactor test, one that takes into account the market conditions, technology, alternatives available to each side, competitive dynamics. This is the kind of stuff that requires very expensive expert witnesses in very expensive legal proceedings. There may be up to 16 factors listed, plus a catch-all for "other factors."

So, according to the FCC, when Verizon discriminates against a startup, we shouldn't be alarmed, because (while being discriminated against), this startup can hire a lot of expensive lawyers and expert witnesses and meet Verizon (a company worth more than $100 billion) at the FCC and litigate this issue out, with no certainty as to the rule. The startup will almost certainly lose either at the FCC or on appeal to a higher court, after bleeding money on lawyers.

He's not basing this on some theoretical crystal ball. It's already happened -- and it's obvious from the Court's ruling earlier this year:

Back in January, the D.C. Circuit struck down the FCC’s last attempt at net neutrality, saying that Section 706 does not permit the commission to stop nondiscrimination. It pointed to another legal decision, concerning data roaming, in which the FCC adopted a 16-factor test like the one I explained above. Based on an earlier case, the FCC can probably ban one or two specific practices, such as blocking certain websites or applications. That’s about it.

So here's the issue: the old rules were incredibly weak and nearly pointless in the first place. They didn't apply to wireless (nor, apparently, will the new rules) and they didn't really protect net neutrality. They were crafted, in part by the telcos, through a long-drawn out process, in which the former FCC boss tried to keep everyone happy and ended up pleasing no one. That's why we were a little perplexed at the outrage over those rules being thrown out earlier this year in the first place. Those rules were nothing great.

The problem is that this new proposal isn't just "those same old rules" as the FCC would like you to believe. Instead, they're the same old rules, made weaker at the critical juncture by the necessary legalese change to "commercially reasonable" and by the clear nature of what the court says the FCC is able to do under Section 706. And while some think the answer is to shift broadband back under Title II and put them under common carrier rules, that's almost certainly a political impossibility -- which is why Wheeler is trying to thread this needle.

As we've said for a decade now, the underlying problem is a lack of competition. These kinds of rules, including things like transparency into the crap that the telcos are pulling only matter if you have options. When you don't, then they can be transparent as to how they're screwing you over, and there's really just not much you can do. And that's kind of the situation we're in today. Wheeler claims this is no change and people are overreacting, but what they're realizing is that the existing rules in 2010 were kind of a joke anyway, and what little power they had to keep the internet open and non-discriminatory back then is now pretty much gone with this new wording. So, Wheeler may not want to be killing off the open internet, but the end result may be exactly that.

Filed Under: commercially reasonable, discrimination, fcc, net neutrality, open internet, tom wheeler

Legacy Recording Industry Claims Pandora Is Playing A 'Sick Joke' In Seeking The Same Rates Others Pay

from the really-now? dept

The ability of the record labels and RIAA front groups to flat out lie about the internet is really quite incredible. There's been some buzz recently about the crazy fact that Pandora just bought a small terrestrial radio station in South Dakota. Now, you might wonder, why would an innovative company that basically seems to be focused on making terrestrial radio stations obsolete need to own such a station... and Pandora is rather upfront in its answer: because the music collections societies, like ASCAP and BMI discriminate against internet companies, in direct violation of an antitrust agreement that ASCAP signed. Furthermore, ASCAP not only won't offer Pandora the same rights, but it engaged in highly questionable negotiation practices, such as refusing to tell Pandora what songs it was pulling the rights to, such that Pandora risked huge statutory awards for copyright infringement:

During negotiations, ASCAP and the publisher increased the pressure by refusing to provide Pandora the list of tracks that were being withdrawn, exposing Pandora to copyright infringement liability of up to $150,000 per work. At Pandora’s scale, such liability would be enormous. Faced with such potential liability, Pandora negotiated an agreement that resulted in increased rates. Shortly thereafter, additional major publishers took steps to withdraw their catalogs from ASCAP, again with respect to Pandora.

ASCAP created additional ways to circumvent its antitrust consent decree. Our motion also describes how ASCAP refused to provide Pandora a license under the same terms as the iHeartRadio service, for only one reason: iHeartRadio is owned by a terrestrial broadcaster.

All of this is in direct violation of the antitrust agreement ASCAP has with the DOJ, in which it's supposed to make sure that ASCAP can't use its monopoly power over compositions to discriminate against certain players. Yet, ASCAP is clearly trying to discriminate against internet streaming services, by charging them significantly higher rates.

So, Pandora has bought the station in order to get the same rates as other streaming radio stations that are owned by terrestrial stations. As Public Knowledge points out:

This is a perfect example of the twisted incentives and strange results we get from a music licensing system that is based on who wants a license instead of just what they want to do with the music they’re using. This makes no sense. The law should treat like uses alike. Regardless of how high or low you think performance royalty rates for webcasting should ultimately be, there is no logical reason to give preferential rates to certain companies just because they arrived at the negotiation table first.

And this is only about composition rates, not even getting into the rates that Pandora has to pay for sound recordings, which is infinitely higher than terrestrial radio. Buying the radio station won't help on that front, because the internet streams are charged differently than terrestrial radio no matter who owns it, but just the fact that it's paying different rates than everyone else seems ridiculous.

And, of course, the incumbents try to twist all of this. First up, we see that BMI has sued Pandora for buying the radio station. I'm not joking. I can't see on what possible grounds a lawsuit would make sense. Are they saying it's illegal for a company to seek to get the same rates that BMI offers radio stations?

But, even worse than that is the reaction of the RIAA front group, MusicFirst, a lobbying group set up by the RIAA and SoundExchange solely for the purpose of lobbying against internet companies and seeking ever higher rates for those companies, to make sure no internet music company can stay in business. That this is short-sighted and stupid never seems to occur to MusicFirst, who is always quick with a blog post arguing that internet companies are up to no good. In this case, it accuses Pandora of playing a "sick joke" in making this purchase:

This has to be some kind of sick joke. Pandora bought an FM radio station to game the system in order to pay songwriters less?

Pandora continues to find new ways to give artists and songwriters a raw deal from the bottom of the deck. In their race to the bottom to see how little they can pay music creators, they have stooped to misleading legislation, bait and switch petitions, and now fronting as an FM radio station.

Oh really now? It's a "sick joke" to try to get the same license rate that ASCAP and BMI offer terrestrial radio stations? How so? It's a "sick joke" that the company doesn't think it's fair for ASCAP and BMI to discriminate against internet streaming radio services? The only "sick joke" is MusicFirst pretending to represent artists as it seeks to kill off new and innovative internet services that are helping artists build bigger fan bases. No wonder the RIAA-funded MusicFirst has to resort to silly claims like this. The RIAA has never wanted to adapt to an internet world, and is, once again, looking to spread completely bogus propaganda in an attempt to stifle internet progress, which tends to help independent artists, such that they don't need the RIAA labels any more. What's incredible is that the RIAA, which set up MusicFirst, has it pretend to represent the interests of "artists" when it's never been anything more than a big-label front group. If there's any "sick joke" it would be MusicFirst's pretend concern for artist's rights, that just so happen to align entirely with the interests of the big labels.

Meanwhile, David Israelite, the lobbyist for the music publishers has piled on as well, claiming that this is about Pandora "going to war with songwriters."

David Israelite, CEO of the National Music Publishers Association (NMPA), tonight interrupted his state-of-the-industry speech at the group's annual meeting in Manhattan to lash out at Pandora's decision to acquire a radio station in South Dakota. "Pandora is going to pursue lawsuits and gimmicks," Israelite told the hundreds of songwriters and composers in attendance. "Pandora is hoping to fraudulently sneak in the back door. Any shred of credibility that Pandora had is gone. They are at war with songwriters "

Once again... huh? Asking for the same rates that radio pays to stream music online is "going to war"? How does that compute? It's as if the music publishers, collection societies and the RIAA can't help but lie because they have such distaste for Pandora actually figuring out a service that people like online, when they've spent so many years trying to ensure that online services fail. If there's any "war" going on here, it's the legacy recording industry against online services that fans seem to love.

Filed Under: discrimination, licensing, lobbyists, music publishers, radio, recording industry, royalties, streaming
Companies: ascap, bmi, musicfirst, nmpa, pandora, riaa

Turns Out It's Not Sex Discrimination To Get Fired For Looking At Porn Sites

from the who-knew? dept

Eric Goldman alerts us to an appeals court ruling finding against a guy who claims that his firing was gender discrimination after the hospital he worked for found that he had been surfing porn and "hacking" sites. The guy's entire case seems like a huge stretch. In the department he worked for, there was one computer shared between 7 people, with this guy, David Farr, being the only guy. While each employee had a separate login, apparently whoever logged in first usually just stayed logged in all day. When it was discovered that a number of porn sites were listed in the favorites, the hospital did what sounds like a decently thorough investigation, and found it quite likely that it was Farr who visited the sites (one of the days the activity occurred was a Saturday where he was the only one there). He eventually admitted to visiting 17 of the 31 sites in question, but then later claimed that he had visited sites that installed malware on the computer that added the bookmarks to the porn sites. But then... when confronted again, admitted to visiting the 17 sites.

He claimed that it was gender discrimination, since he was the only guy, there was an automatic assumption that he had visited the porn sites. Yet, the court points out that (1) he failed to show that a female employee wouldn't have been treated in the same way and (2) the hospital was incredibly thorough in investigating the issue, especially after he denied visiting some of the sites. They didn't just jump to a conclusion and fire him, but apparently went into quite a lot of detail in making sure that he had actually been visiting those sites. On top of that, the court notes that his employment was at-will, so the hospital had every right to fire him. It's difficult to see how he thought a gender discrimination claim would get very far given that he admitted to visiting some of the sites, as well as the amount of investigation that was done by the hospital. But, these days, people seem to think that anything they don't like that happens to them must be against the law.

Filed Under: discrimination, porn

Appeals Court Says Roommates.com Doesn't Qualify For Safe Harbors

from the uh-oh dept

Lots of folks were surprised last year when the 9th Circuit court ruled that Roommates.com didn't qualify for section 230 safe harbors. Section 230 of the CDA, as you hopefully know, protects service providers from the actions of their users, and the ruling last May would potentially limit those protections. Until then, courts had generally interpreted the service provider clause quite broadly (reasonably so, in my opinion). Last fall, the court agreed to ditch the original ruling and rehear the case with an 11 judge panel. While that was happening, in a similar case against Craigslist, the 7th Circuit found that Craigslist was covered by the safe harbors and was not responsible for discriminatory housing posts.

However, it looks like the full panel on the 9th Circuit has decided to buck most other courts on this matter and is siding with the original ruling saying that Roommates.com is not immune from liability for discriminatory postings by its users. The reasoning seems to follow along the lines of the earlier ruling, that Roommates.com gave up its immunity by putting checkboxes and pulldown menus that allowed users to choose discriminatory options -- thus, actively taking part. In fact, the ruling makes it clear that by placing these options and effectively asking discriminatory questions, Roommates.com goes past being a service provider and becomes a content creator itself. Three out of eleven judges disagreed and dissented, claiming that this goes against the basic language of section 230. What's clear is that this issue isn't done yet, and there are going to be a lot more cases coming down the road (and some may target this court, seeing it as more "favorable" to these types of cases).

While it's always a little worrisome when a court tries to limit the coverage of these safe harbors, you can understand where the majority opinion comes from. Roommates.com isn't a neutral party, it claims, because: "Roommate does not merely provide a framework that could be utilized for proper or improper purposes; rather, Roommate’s work in developing the discriminatory questions, discriminatory answers and discriminatory search mechanism is directly related to the alleged illegality of the site." However, the dissenting opinion makes some very good points, noting that the majority seems to mix and match two separate issues: (1) is there discrimination and (2) is Roommates.com liable for any discrimination -- and as such, finds the discrimination (which isn't what the lawsuit was about) and then assigns the blame to Roommates.com. Basically, the dissent is saying that the majority got blinded by the discrimination (without making a legal determination if there really is discrimination) and let that confuse them into assigning liability where it doesn't belong.

Filed Under: cda, discrimination, roommates, safe harbors, section 230
Companies: roommates.com

Once Again, Craigslist Isn't Liable For Discriminatory Posts

from the can't-sue-the-messenger dept

A little over two years ago, a civil rights group sued Craigslist, blaming the company for the fact that some of its users were posting discriminatory housing/roommate offers -- which could violate the Fair Housing Act of 1968. However, as plenty of people noted at the time, section 230 of the CDA protects Craigslist as a service provider, not a publisher, meaning that Craigslist isn't the party to sue here. The group could certainly go after the original posters for violating the law, but Craigslist is just the service provider and has no say in the content. That seemed obvious right from the beginning, but the civil rights group pushed forward and lost its case. The judge explained all of this to the lawyers... who filed an appeal anyway. The appeals court has now ruled as well, and (no surprise here) affirmed the original ruling, saying that Craigslist is a service provider, not a publisher, and therefore is not liable for discriminatory posts. As Eric Goldman points out, the ruling (again) makes this quite clear:

"Using the remarkably candid postings on craigslist, the Lawyers' Committee can identify many targets to investigate. It can dispatch testers and collect damages from any landlord or owner who engages in discrimination....It can assemble a list of names to send to the Attorney General for prosecution. But given §230(c)(1) it cannot sue the messenger just because the message reveals a third party's plan to engage in unlawful discrimination."

What will be interesting, however, is to see what happens now in a very similar lawsuit involving Roommates.com that is currently being reviewed in a different Circuit. Hopefully the court there comes to a similar conclusion and we stop getting these types of incorrectly targeted lawsuits.

Filed Under: discrimination, housing, safe harbor, section 230, service provider
Companies: craigslist