There is nothing surprising about Friday’s ruling by the U.S. Court of Appeals ruling that Myspace is immune from a lawsuit brought by a parent of a sexually abused child. In Doe v. Myspace, Inc., the Fifth Circuit ruled that the Communications Deceny Act, 47 USC Sec 230 (”CDA”) bars claims against providers like Myspace for damages that arise out of publication by providers of content supplied to the provider. For law geeks keeping score at home, the Court relied on CDA Sec 230(e)(3).

This is the whole preemption thing again. At least this is true preemption that was clearly intended by Congress, rather than a political agenda being pushed by an out-of-control administration.

But that’s not as interesting to me as how this ruling shines a light on censorship by web 2.0 providers like Facebook and Myspace. The CDA protects publishers of content. So why would Facebook remove posts that were critical of Career Education Corp? Facebook couldn’t be required to answer to claims under the CDA. So what gives?

I can’t see any other explanation other than web 2.0 providers play a kind of 3-card Monte with censorship rules. When faced with a liability lawsuit, they rightfully raise the CDA as a complete defense. Fine. That’s how Congress wrote the law. While I have trouble with the result in Doe, it’s about personal beliefs and nothing relating to the correct interpretation of the CDA. But when other interests demand the removal of content–like unflattering posts–the provider should stick to the same position.

To be sure, I’m not a big fan of the CDA’s grant of wide immunity. In pre-web days, publishers like newspapers could be held to answer for harm caused by defamation if they recklessly published untrue information. Personally, I would prefer that model so that web providers take some responsibility for content. But maybe I’m misguided on this particular issue.

Interestingly, there may come a time down the road where web 2.0 providers’ inconsistent actions create a different set of problems. I can foresee that lawyers representing future Doe families will have new and interesting arguments to get around the CDA if Facebook censors for its friends but doesn’t take similar steps for trolling sexual predators. I realize this last thought might be a little obtuse. Apologies. Untangling it would only lead to a long and dense post that would surely bore you to tears. You can thank me for being a self-censoring law geek….

David Sugerman

In an interesting blog on concurringopinion.com, Daniel Solove explores the emerging problem of Facebook censorship. http://www.concurringopinions.com/archives/2008/03/facebook_banish.html

I am taken by both the post and the responses. Mr. Solove relates the experience of David Lat, who was temporarily banished from Facebook.

In investigating a potential consumer class action against Career Education Corp. (CEC) and its subsidiary WCI, Ltd., I found an active Facebook group called IADT Truth Advocates. The group was run by one Charles Hobbs, a gentleman from Tampa who was concerned about widespread complaints by students at various CEC schools throughout North America.

In this brave new Web 2.0 world, I used the IADT page to try to find out more about Western Culinary Institute, a Portland, Or. CEC culinary school that has been the subject of some concern. As with any information source, it was helpful in locating witnesses as we investigated a case on behalf of Western Culinary students.

In the course of those postings in late Feb ‘08, I reviewed postings from Mr. Hobbs indicating that Facebook and CEC were trying to shut down the site and asking for assistance. While I was drawing inferences, it sounded like CEC was threating litigation. There were the usual impassioned responses about the First Amendment. (No go for obvious reasons, as comments on the Solove blog correctly note.)

I recently went back to post an update on the IADT Truth Advocates wall, only to learn that Mr. Hobbs has been removed, and many posts have been deleted. There was a link to a chilling post at the top of the wall from a woman connected with CEC about why Mr. Hobbs was removed and how CEC was trying to answer complaints. It looked as if my prior posts had been purged.

I understand that Facebook and other Web 2.0 sites are not subject to 1st amendment limitations on their own operations because they are private sites. Even so, one has to mourn the fact that such a powerful forum with so much potential is run with a heavy hand. But the bigger problem is whether a private third party should be able to get its way.

I don’t know the facts, but it’s easy to draw inferences–perhaps incorrectly– that CEC pressured Facebook, and Facebook pulled the plug. Assuming that CEC pressured Facebook to purge Hobbs and postings CEC disliked, it would seem that the Facebook terms and conditions might need to be expanded to include that, “Money talks,” and we will flush you if someone of greater import or economic power demands it, regardless of the truth of your speech and your compliance with all our other terms and conditions.

Chilling.

David F. Sugerman

Wow, here’s something cool about how the internet is providing consumers with new tools to fight corporate abuses.

I stumbled on a Facebook group devoted to consumers’ concerns over CEC, the owner of many private trade schools, including Portland’s Western Culinary Institute. The man behind the group is Charles Hobbs. I’m in awe of his energy and organizing ability. While I don’t know his story directly, I’m guessing that he got burned by one of the CEC programs and decided to take action.

Here’s his IADT Truth Advocates facebook page: http://www.facebook.com/group.php?gid=5604847490

And if that’s not enough, the page reports that CBS is coming out with a news piece on CEC and some of the claims made by consumers.

It’s refreshing to see Mr. Hobbs and others using the internet in a constructive way to provide information to consumers. The networking process provides a great tool in fighting those businesses that seem committed to doing things the wrong way. Nothing like good old fashioned information to help consumers make smart choices.

Update: Facebook purged this site, as reported in a later entry. It appears that Mr. Hobbs has been banned from Facebook, in what sounds like a chilling case of corporate-driven web censorship. See the later entry on this important topic: www.pspc.com/2008/03/did-facebook-bow-to-pressure-from-career-education-corp

David F. Sugerman