> In fact, Cubby v. Compuserve applies as it found just that. If the list
> owner doesn't "edit" the list, they are immune from action. Just the
> opposite was found in Stratton v. Prodigy in which Prodigy had a system
> of editing messages, so they were subject to suit.
>
> Section 230 of the Comm Decency Act grants immunity to publishers of
> email lists, I don't believe that this section has been tested.
There is an even more relevant precedent in case anyone else ever gets in trouble: Truelove v. L-Soft et al., which we won based on section 230 of the CDA. The judgment is a bit messy because the plaintiff kept adding defendants and new allegations as he went on, but L-Soft's defense remained focused on the CDA and we let everyone else deal with the issues relating to the plaintiff's minor daughter, which to be honest I never even understood as she had no participation whatsoever in the events at hand. The plaintiff's original beef vs. L-Soft was that he wrote to a LISTSERV list hosted at L-Soft to say that people of a certain skin color had lower IQ and/or inferior genes or something along these lines; he was promptly flamed, sorry I mean unfairly defamed, and sued L-Soft, as well as L-Soft's customer and every ISP that ever touched the message in any way. Quoting from the judgment (emphasis added):
Section 230 of the CDA states that "[n]o provider ... of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c) (1) .(3) Accordingly, any lawsuit attempting to hold "service providers liable for information originating with a third party user of the service" is barred. Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 118 S.Ct. 2341 (1998) ("By its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service").
The Fourth Circuit has also held that § 230 precludes courts from entertaining lawsuits that seek to hold an interactiVe [sic] computer service liable for failure to exercise traditional editorial functions of a publisher such as deciding "whether to publish, withdraw, postpone or alter content." Id. When enacting § 230, Congress made a policy choice not to attempt to deter harmful or defamatory online speech by imposing tort liability on interactive computer services. Id. at 330-31. In essence "[Congress] made the legislative judgment to effectively immunize providers of interactive computer services from civil liability in tort with respect to material disseminated by them but created by others." Blumenthal v. Drudge, 992 F. Supp. 44, 49 (D.D.C. 1998). Section 230, on the other hand, in no way restricts the accountability of the party who posted the defamatory messages in the first place.
IV.
Plaintiffs concede that L-Soft is an "interactive computer service" under § 230. It provides a list mailing service through its computer hardware and software, enabling many people to access the Internet. Information provided by others passes through
L-Soft's equipment and software [sic] without any intervention by L-Soft or its personnel. L-Soft exerts no control over material posted through its services, nor does it determine who may subscribe to the lists provided by their equipment. In the instant case, for example, it was the Mensa organizations that controlled posting and subscribing to the L-Soft List.
That, quite simply, is the end of the matter. As an "interactive computer service" under § 230, L-Soft is immune from precisely the type of liability Plaintiffs seek to impose here. Plaintiffs' claims against L-Soft, however they may be styled, must fail.
V.
For the foregoing reasons, the Court will GRANT Defendant L-Soft's Motion to Dismiss.
But we did not get attorneys' fees and this victory was expensive. It would have been far cheaper to settle as the plaintiff only wanted a copy of the list and I forgot what else, but no hard cash. I refused to give in to this, and I also wanted to create a precedent to make people feel safe in running mailing lists because we are in fact immune as a matter of law as long as we do not censor.
> The conservative approach is to follow Cubby.
I generally agree. I am not a lawyer, but I doubt a court would sanction the removal of harmful viruses as a result of discovering that viruses are being spread from your server. This would put companies in the position of having to choose between knowingly continuing to infect people's computers (and being potentially liable for resulting damages), and losing their CDA immunity. This would clearly not serve the public interest. Nobody has ever said that phone operators would lose their immunity if they allowed technicians to make changes to the system to protect it from harm. I think there is a strong case for showing that viruses are harmful to the infrastructure itself and need to be blocked because they are self-propagating and will shut down the infrastructure if left unchecked.
A further argument is that products like LISTSERV will automatically block viruses or mailing loops from hitting the list. I would argue that these are technical steps rather than the "traditional editorial functions of a publisher." We tech people run defragment passes and virus scan passes as a matter of course. It is not moderation, it is purely technical, even in the occasional cases where one needs to take manual action to remove a virus.
The case for spam is similar - spam filters automatically "censor" spam. It is a little more tenuous in that spam is not dangerous per se, but on the other hand, spam links usually point to pages delivering viruses to visitors so that their credit card or online banking information may be compromised. If there is reasonable cause to believe that the page is harmful, it needs to be handled like a virus.
Eric
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