State Attorneys General seek modification of Communications Decency Act to combat child sex trafficking

Nearly every Attorney General in the country has joined in signing a letter to Congress urging the modification of the Communications Decency Act of 1996 (CDA). The change seeks to allow the state prosecution of website owners for hosting user-created advertisements that result in the victimization of children.

Section 230 of the CDA has been held to mean that website owners are not liable for the contents of what third parties post on their websites. For example, a newspaper or social media company like Facebook is not liable for comments posted on their websites by users (see, e.g., Zeran v. AOL, 129 F.3d 327, 330 (4th Cir. 1997)). The immunity extends to all torts including if the content contained defamatory or false information, threats, or sexually explicit content including that of minors (see Doe v. America Online, 783 So. 2d 1010 (Fl. 2001) (holding that marketing of sexually explicit content of minors in an AOL chat room did not subject AOL to claims of negligence).

The recommendation from the National Association of Attorneys General (NAAG) is aimed at allowing states to prosecute website owners for hosting content that facilitates child sex trafficking. "It is ironic that the CDA, which was intended to protect children from indecent material on the internet, is now used as a shield by those who intentionally profit from prostitution and crimes against children." NAAG argues that federal enforcement alone has been "insufficient," and states should be allowed to step in "to investigate and prosecute those who facilitate these horrible crimes."

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Court finds website editor's comment on post does not remove CDA immunity

A federal court recently upheld the "robust" immunity of the Communications Decency Act (CDA) in a case where the website's editor commented on a post referring to the plaintiff with rather crude language. S.C. v. Dirty World, LLC (W.D. Mo. 2012). The case concerned www.TheDirty.com where visitors are given the opportunity to post about a variety of topics. Many people use it to post about cheating significant others or former friends such as this one post about the plaintiff (edited for language and length):

This nasty b**** who was my `friend' started [deleted] my boyfriend in my bed and bringing her nasty a** horse teeth around my son trying to play house. This sl** claims to be a sweet little church girl. She even works for the church! Fugly sl**!

The post, which included a picture, was approved by the website without modification.

The CDA is popularly applied to websites such as newspapers with regard to the commenting feature on websites, immunizing the website for the content posted by visitors. "Courts ... have described CDA immunity as 'broad' and 'robust.'" However, there are situations where a provider will lose the immunity such as when they "are 'responsible, in whole or in part, for the creation or development of'" a defamatory post.

Knowing that under traditional CDA application, no liability would have existed here, the plaintiff focused on the fact that the website chooses which submissions to publish and the editor often comments on the posts as to whether or not he is romantically interested in them. In this case, he responded by making an opinion about the plaintiff's appearance (the case didn't say what was written, but a typical response from the site is "No, her nose hangs like a banana and her calves are elongated.") The court didn't buy the argument, but noted that a statement like "Why are all church girls freaks in the sack?" might have crossed the line.

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CDA claim against Facebook's "Sponsored Stories" feature survives motion to dismiss

When Facebook released its Sponsored Stories feature in January, many users instantly began complaining. Yesterday, a lawsuit concerning the feature survived Facebook's motion to dismiss.

Sponsored Stories connects a Facebook user's likes and check-ins to paid advertising. For example, if a user likes Nike, their name may appear on Nike's website when one of the user's Facebook friends visits the site. Though users can opt-out from being used in Sponsored Stories, it was automatically enabled for all users when released.

In Fraley v. Facebook, Inc., 2011 U.S. Dist. LEXIS 145195 (N.D. Cal. 2011), the plaintiffs allege violations of the Communication Decency Act (CDA), among others. While Facebook argued in its motion to dismiss that the CDA "provides broad immunity" to websites like themselves, the court found that the statute may not extend to Facebook's actions in Sponsored Stories. The plaintiffs allege that that "Facebook creates content by deceptively mistranslating members' actions," making it an information content provider and, thus, not immune under the CDA.

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