Posts Tagged ‘Internet

08
Jun
17

Don’t Lose Your Designated DMCA Agent

On December 1, 2016, the U.S. Copyright Office went live with its new DMCA Agent database, and revamped the procedures for designating an agent for receipt of copyright infringement notices. For any reader who does not know about the benefits of designating a DMCA Agent, or which sites should take advantage of this procedure, the author’s previous article covering those topics can be found here: http://www.firstamendment.com/dmca-agent/. This article focuses on the recent changes to the procedures and the consequences of failing to comply with the new requirements for designating a DMCA Agent.

First, and most importantly, all website operators or online service providers (“Service Providers”) who might want to claim DMCA safe harbor defenses relating to user-generated content must designate a DMCA Agent using the new automated filing system (“New System”) by December 31, 2017. This includes anyone who has already designated a DMCA Agent in the old, manual filing system (“Old System”) which ceased accepting new filings as of December 1, 2016. Failure to designate an agent in the New System by the deadline (even if you already filed a Designation in the Old System) means your business is left without a DMCA Agent, and without any legal basis for claiming safe harbor protection in response to a copyright infringement claim. Instructions about how to use the New System, and the phasing out of the Old System, can be found here: https://www.copyright.gov/dmca-directory/

Why are they doing this? Supposedly, it comes down to efficiency and accuracy of the database records. The new automated, online agent designation system is superior to the Old System, since submission of the DMCA Agent information to the Copyright Office, and payment of the fee, now take place electronically – and rather quickly. Requiring updated information and renewals will keep the information contained in the Designations more current and accurate – more about that later.

With the Old System, anyone seeking to designate an agent would need to fill out a .pdf form containing all the contact information and associated domain names, which would be sent to the Copyright Office – along with a paper check – and then scanned into the database by a human being who would then manually associate the Service Provider’s corporate name with any and all domains, mobile applications, or other “alternative names” used by the Service Provider in business. That information would be uploaded into an antiquated database with limited search capabilities.

Filing a Designation in the Old System would often take weeks, and the online database was littered with errors given its reliance on human data input. Domains would often be misspelled, overlooked, and/or duplicated. Each posting would need to be carefully reviewed by the Service Provider (or its attorney) for quality control, and errors would often take weeks (or months) to fix. In fairness to the governmental employee previously responsible for overseeing the Old System, she was given a virtually impossible task, with outdated technology and minimal support staff. That person is no longer with the U.S. Copyright Office, and given the automated nature of the New System, it appears that no individual will be responsible for overseeing it.

The Old System was actually being phased out months before the New System went online in December, 2016. Widespread reports have indicated that Designations of Agent sent to the U.S. Copyright Office in the months leading up to the launch of the New System have been uniformly ignored, and not posted in any database. Notably, the filing fee checks were cashed by the government, but many Designations have not been processed or posted online. This may result in some dramatic consequences for any Service Providers who believe they have submitted valid Designations during this ‘doughnut hole’ between the end of the Old System, and the launch of the New System. If you recently filed a Designation in the Old System database, but it does not appear in this database: https://www.copyright.gov/onlinesp/list/a_agents.html, it may be gone for good. The best solution is to immediately file a fresh Designation in the New System, and confirm that the information is posted here; https://dmca.copyright.gov/osp/search.html?key=exposedonth.net&action=search. Any Designation submitted to the Old System will become invalid anyway, as of December 31, 2017, so a new Designation submitted in the automated system will be required by the end of the year for all Service Providers. Instead of wasting time trying to track down the status of a Designation filed in the Old System, simply file one in the New System and move on.

The one piece of good news in all of this chaos is that the filing fee for submitting Designations has gone down from a minimum fee of $135 to a flat fee of $6. That’s a substantial drop, but reflects the lack of any real human involvement in the process. The bad news is that Designations are no longer permanent like they were in the Old System. Again, all Old System Designations will expire on December 31, 2017. All New System Designations must be renewed every 3 years by filing a renewed Designation. If you amend a Designation on file in the New System, the 3 year renewal period starts over. Apparently, the U.S. Copyright Office will send out reminders of any impending renewal deadline to the email address of record, but separate calendaring of this filing deadline by the Service Provider (or its attorney) is highly recommended. It is difficult to predict how the system will work in 3 years.

One other change in the procedures is the requirement that Service Providers submit a telephone number and email address when submitting a Designation. Previously, that information was not required. Notably, the telephone number and email address will not be posted in the database, but will be maintained in the internal records of the Copyright Office.
Some practical problems are bound to arise from this transition. As noted above, some Service Providers will understandably believe that they have a current Designation on file, but that Designation may never be posted if it was submitted in the latter part of 2016. Individuals trying to locate a Service Provider’s DMCA Agent may not understand the obligation to check two independent DMCA Agent databases – either of which could have relevant information about a Service Provider’s agent. Some Service Providers will have conflicting Designations filed in each database directory. Filing a Designation in the New System may not override or cancel out the Designations filed in the Old System. Some websites may have more than one Service Provider associated with them, according to one or the other databases. Some domains may be overlooked and not included in the new Designations, and will thus lose any safe harbor protection.

Ultimately, the confusion and inconsistencies will be corrected due to the passage of time, and the elimination of the Old System at the end of 2017. For now, it is essential for Service Providers to carefully review their Designations for accuracy and continued validity. Multiple calendaring systems should be implemented to ensure that renewal Designations are filed on a timely basis. Given the importance of correctly filing and maintaining a DMCA Agent Designation, many Service Providers chose to have an attorney act as their DMCA Agent, and oversee the process. While filing the Designation of Agent in the New System is not rocket science, attorneys tend to be meticulous with filing procedures and deadlines. Moreover, since a website’s DMCA contact form or email address is often used by third parties for a wide variety of legal notices, claims, subpoenas, search warrants, and preservation notices, a licensed attorney will be able to quickly escalate any non-routine legal correspondence, and ensure timely compliance with legal obligations. Regardless of your choice of DMCA Agent, it is essential to remain up to date on the changing legal requirements for filing and renewal of DMCA Agent Designations with the U.S. Copyright Office.

07
May
13

Dangerous Intersections

Could a webcam model also be a paid escort and an active member of a “hookup” dating site?  Naturally, the answer is “yes,” but at what costs?  Blurring the lines between these adult-themed user categories creates an uncharted hybrid of legal exposure, for both, the individual model/escort and those operating the associated websites.  However, more and more frequently, we’re seeing this sort of crossover in the live webcam, escort, and casual dating industries.  Historically, escort sites have legally operated on the basis that their advertisers do not engage in sexual activity for hire, but simply offer paid companionship services.  Live webcam operators routinely engage in sexual activity on cam, but are typically prohibited from any “real world” meetings with users, so as to avoid concerns with prostitution and solicitation.  Finally, adult dating sites have avoided prostitution-related issues based on the fact that they merely serve as a forum for social interaction, and should any sexual activity occur between users, it is not in exchange for money or anything of value. However, when the same individual acts as a webcam performer, an escort, and a hookup site user, these important legal distinctions and assumptions can start to break down.

Importantly, no law prohibits an escort from having a normal, romantic dating life, complete with sexual activity.  Similarly, live webcam models are not legally prohibited from offering companionship escort services, or submitting profiles to casual dating sites in search ofan occasional tryst.  The legal danger arises in the not-so-rare scenario, linking all of these activities together in some way. For example, escorts who provide sexually explicit performances via webcam must be careful to separate any discussion of escort activities or reference to online escort profiles, to avoid sending the wrong message to users.  Without clearly distinguishing between the webcam and escorting activities, the government will likely argue that any explicit webcam activity is indicative of the services the model might provide when acting as a paid escort.  Whether such argument would be successful in a court of law is another matter, but the risk exists.  Escorts should be similarly cautious when linking to any dating site profiles that reference sexual activity, so as to avoid conveying any misconception regarding the limited, non-sexual nature of the activities that the escort is willing to engage in during a paid session.

While compelling legal arguments can be made in support of the legality of live webcam sites, escort sites, and hookup sites, those legal arguments can be negatively impacted by linking such activities together in some manner. In a perfect world, escorts would never engage in sexual activity, webcam models would never meet users offline, and adult dating site participants would never be compensated for anything having to do with erotic interaction.  Unfortunately, however, reality is messy.  Escorts and webcam models do have social lives, and are entitled to engage in healthy sex lives, just like anyone else.  But as the escort, webcam, and adult dating business models become more popular and profitable, site operators will be forced to make difficult but important decisions regarding the extent to which any co-mingling of activity will be permitted or referenced on the site.

In the immortal words of The Offspring: “You gotta keep ‘em separated.”  But with many operators permitting posting of user generated content with limited or no pre-publication review, along with real-time social network feeds, the ability of a site operator to control the intersection of these three areas of online adult entertainment can be challenging.  That said, pre-publication review of user posts/profiles creates its own set of complications, and may negatively impact the legal protections afforded to online service providers under federal statutes like Section 230, the DMCA, and Section 2257.  Thus, actively attempting to control linkage of these various activities could impact the site operator’s legal defenses to claims arising from the publication of this third-party content. Coherent operating policies should be adopted in connection with the publication of any such material, taking into consideration all of the factors.  However, given the serious legal consequences attached to the promotion of sexual activity for hire in the United States, site operators, escorts, and performers should be forewarned regarding these dangerous intersections. 

18
Mar
13

Feminism or Fascism: Iceland’s Stunning Ban on Pornography May Be Spreading

Iceland recently made headlines with the latest project on its allegedly progressive agenda: a nation-wide ban on pornography.  No stranger to proscribing activities related to commercializing sex, Iceland has already passed laws banning printed pornography, prostitution and stripping, and has done so all in the name of feminism.  Rattling off the standard laundry list of the evils of porn, the Icelandic Parliament noticeably lingered on the “damaging effects” adult material has on the children who view it and the women who participate in it.  Iceland’s Office of the Interior Minister defended the ban by stating that Icelandic citizens deserve to live and develop in a non-violent environment, therefore, the resulting law is “not anti-sex, but anti-violence.”  What’s potentially more concerning is that this feminist backlash against commercial sexualization is gaining serious momentum throughout Europe, as evidenced by the European Union’s recent parliamentary vote on a blanket pornography ban.  Taking a page from the Nordic view on feminism, the EU claims the ban will foster gender equality and combat sexual stereotypes by sanctioning individuals and businesses “promoting the sexualization of girls.”  With Parliament disclosing very little about the potential ban, most Europeans are looking to the recent path blazed by Iceland for some guidance on what’s to come.*  So what is the likelihood of Iceland being the first democratic state to successfully ban pornography?  The answer to that question probably depends on your definition of success…

Given that Iceland is expected to implement similar blocking filters to those used in China and Iran, it stands to reason that Iceland would enjoy comparable success in restricting online content.  However, the environmental and temporal differences between Iceland’s efforts and that of middle and far east authoritarian regimes, shouldn’t be so easily dismissed.  Countries like China and North Korea limited citizens’ access to online content, but such restrictions have been in effect practically since the Internet’s inception.  Any armchair psychologist will tell you – and any parent of a toddler will confirm – it’s human nature to want what you can’t have.  And if whatever you can’t have, is something that was in your possession but was taken from you, well that ups the ante even more.  Like most citizens across the globe, Iceland’s people have had unfettered access to online adult material.  To put it bluntly, it doesn’t matter how inherently progressive a country is, when you confiscate a piece of personal autonomy, there’s bound to be consequences.

Even if the Icelandic government seamlessly weathers whatever discontent that’s thrown its way, there’s still the matter of enforcement.  Logistically speaking, Iceland will employ filters barring citizens from accessing flagged websites, and fire walls prohibiting Icelandic credit cards from purchasing adult content.  But what about the tangible transport of digital pornography?  Streaming, downloading and cloud access aren’t the only ways to retrieve digital content.  What’s stopping someone located in another jurisdiction from entering Iceland’s borders with a pornographic DVD?  With so many vehicles capable of transporting digital content, common sense says that it would be impossible to inspect each and every tablet, flash drive, laptop, and Smartphone that crosses Iceland’s borders.  As long as there’s been contraband, people have been smuggling contraband – the digitization of such contraband has only made it that much easier.

The ability to control infiltration of the banned content leads directly to the next hurdle – the black market.  We live in the Internet Age; every technological restriction is met with a response circumventing that restriction.  Whether it’s a scrubbing tool used to mask IP address identification or software that scrambles collected geo-location location, there are countless techniques enabling the average Internet user to evade government-imposed limitations.

Without getting too high up on the First Amendment soap-box, this type of regulation tends to invoke the constitutional scholar in all of us.  If Iceland wants to completely ban pornography, exactly what kind of material is considered “pornography”?  Without careful and meticulous drafting, any such law will inevitably encompass content as innocuous as the mere display of genitals.  Some reports say that the ban would only include “violent or degrading content.”  As admirable as that is, we’re still left with the subjectivity surrounding the definitions of “violent” or “degrading.”  Another variable to throw into the mix in determining what would constitute pornography is the intended purpose of the material in question.  Specifically, was the content created for private consumption or commercial use?  If Iceland’s chief concern is to prevent the commercialized sexualization of women and children, logically, only material disseminated commercially would violate the ban and any application of the law beyond that specific scope would be a flagrant infringement on privacy rights.  Given the widespread creation and sharing of private erotica, a substantial amount of pornographic material would presumably be unaffected by the legislation.

In a very short time, Iceland will undoubtedly find itself at the age-old prohibition impasse, asking which holds more clout: a government imposed ban or the tenacity of those looking to circumvent that ban?  As shown with most government-sanctioned goods or services, a black market develops; those participating eventually monopolize the marketplace; a consistent profit is generated; and ultimately standard supply and demand principles are used to exploit and perpetuate a marketplace devoid of legislative supervision.  Government-imposed prohibitions might change behavior, but a behavioral change does not prove that the problem was solved; only that it has been forced underground.  On that note, one must question whether the “problem” existed in the first place.  One person’s degrading porn, is another’s…you know the rest.  Ultimately, Iceland is unlikely to become a porn free zone irrespective of the pending legislation.  If history has taught us anything, it’s if there’s a will, there’s a way.

 

*As this post went to press, the EU Parliament voted against the anti-porn proposal due to censorship concerns: “Language that would ban online pornography has been dropped from a report approved by the European Parliament.”

02
Jan
13

2012 in Review: Internet Censorship & the Acronyms We Love to Hate

With the new year upon us, two things become painfully apparent in concluding 2012 sans post-apocalyptic bedlam: 1) the Mayans seem to have preferred tequila breaks over finishing their calendaring duties, and 2) there are no more excuses justifying willful blindness to any of the damage done during the last twelve months.  No, we’re not talking about the 10 lbs. you packed on since Thanksgiving, but more along the lines of extremist legislative proposals by lawmakers across the globe, particularly in the area of Internet regulation.

Recently, the United Nations’ International Telecommunications Union (“ITU”) culminated its World Conference on International Telecommunications (“WCIT”) in Dubai.  The WCIT, comprised of almost 200 nations, was called for sole purpose of ratifying the ITU’s Telecommunications Regulations, which were drafted in 1988 to address interconnection between international telephone/telegraph networks.  This year’s update, however, went off the rails a bit when some world leaders viewed the conference as an opportunity to gain government control over Internet operations.  Countries like China, Russia and Middle Eastern nations lobbied for proposals that would allow member countries to regulate a broad range of Internet governance options that are currently under the authority of international third party NGO’s.  One proposal went so far as to call for all signatory governments to have “equal rights to manage the Internet,” ranging from technical operations to actual content review.  The U.S., along with Canada and the U.K., argued that greater government involvement in overseeing the Web would inevitably act as a gateway for countries already censoring the Internet within their respective borders to justify even more restrictions and invasive monitoring.  Standing firm against the WCIT’s potential chilling effect on the world’s largest communication medium, the U.S. and its backers staged a walkout during the final vote on the WCIT’s revised Internet treaty.

Almost 90 countries signed the newly ratified regulation which, among other things, gives participants the unilateral and unrestrained ability to access private telecommunications services and block allegedly harmful commercial communication transmissions.  Those countries that refused to sign the revised treaty are under no obligation to abide by it, and will only be bound by the language of the original 1988 agreement.  As you can see, the situation still fosters a global epidemic of confusion, as about half the countries involved in the summit are now playing by an entirely new set of self-serving regulations with a colossal potential for abuse.

Whether or not we have a digital Cold War ahead of us remains to be seen.  That said, before we start congratulating each other on the staunch free speech principles of our esteemed U.S. ambassadors in Dubai, we might want to make sure those ideologies still hold true in our own backyards.  The U.S.’s rejection of the ITU telecom proposal was a critical step in the right direction.  However, that effort doesn’t negate, or even lessen, the blow felt from similar regulations proposed by U.S. lawmakers just a few short months ago.

Under the guises of such noble causes as consumer protection, reducing unemployment and even battling terrorism, the U.S. government allowed censorship to rear its ugly head in 2012 with the likes of SOPA, PIPA, CISPA, and ACTASOPA, the bill thought to have had the most momentum out of the lot, would have given the U.S. government almost total control in blocking access to foreign websites – sans due process – exhibiting the slightest hint of infringing activity.  Fortunately, the public fought back with a world-wide Internet blackout campaign, wherein hundreds of service providers – ranging from Google to Wikipedia – went dark or posted “CENSORED” messages on their sites.  After January’s historic public backlash, SOPA (and its sister bill, PIPA) were removed from the House and Senate calendars indefinitely, but hopefully for good.  This prior attempt at overzealous domestic regulation doesn’t quite resolve with the U.S.’s current position as the WCIT’s problem child.  Such contradictory actions beg the question: How is the U.S. government any different from the countries it chastised at the WCIT?  And even more so: How can we as Americans look at Chinese officials with disgust or Russian citizens with pity, when the U.S. Legislature ambushed its people with similar Draconian directives on domestic soil?

So often we hear the war-cry of grass roots movements, reminding us that all citizens have a voice; activism starts at home.  The unfortunate reality is that although it’s true that activism starts at home, so does sanctimonious complacency.  Given the series of disturbing events in the U.S. over the last few months, we’re seeing the relatively ‘kumbaya’ American disposition that often appears in the wake of national tragedies and natural disasters.  As important as solidarity is in times of tribulation, it’s easy to forget that the legislative machine doesn’t stop rolling.  If anything, such devastating events act as the shiny objects diverting citizens from yesterday’s cause.  In today’s over-stimulated Information Age, the inadvertent label of ‘old news’ would be the kiss of death for any anti-censorship movement.  If the ‘out of sight, out of mind’ adage has proven true with anything, it’s with the American people and the activity of their lawmakers.  Legislative Internet censorship is a very real concept; a concept, that if dismissed by citizens, will undoubtedly find itself buried within the folds of yet another massive bill aimed at pulling on heart strings – whether in the form of protecting children, or giving hope to the unemployed via economically-friendly rhetoric.

Earlier this year anti-censorship activists rallied in an exhibition of civil unrest, the likes of which never seen by the so called “Internet Generation.”  One would think that with the U.S. drawing a line in the sand on a global scale, additional censorship regulations disguised by muddying acronyms in the coming year would be highly unlikely.  One would think…  That said, the WCIT is just one battle in the constant war between government regulation and the free exchange of ideas.  The U.S. has taken a significant global position on Internet freedom, but before our free speech piety gets the best of us, let’s make sure our government maintains that position in leading its own people first.

20
Jun
09

The Craigslist Case; the First Amendment Implications

Introduction

Operators of user generated content websites, including social networks, ‘tube’ sites, and online adult classified operations, may be substantially implicated by the outcome of the litigation involving Craigslist.com.  This case implicates everything from the scope of Section 230 immunity for user-posted material, to the constitutional prohibition on prior restraint of speech.  Whether intentionally or otherwise, Craigslist has taken on a battle that may shape the user generated content business model for decades to come.

Craigslist, of course, has become the best known online classified site of our time.  Its (generally) free classified ad posting service attracts over 50 million users per month – both buyers and sellers.[1] Well before the recent dustup involving the state attorneys general – in November, 2008 – Craigslist became concerned with its own “erotic services” ads, and began requiring users to submit personally-identifying information, including phone numbers and credit card numbers prior to placing ads.[2] This allowed the company to identify the posters of these ads, and provide better cooperation with law enforcement, if necessary.   Not satisfied with this adjustment to company policy, a few months later, a Chicago-area sheriff sued Craigslist for facilitating prostitution.[3]

Unfortunately for Craigslist, things really heated up the following month, when a Boston man utilized the website to meet a masseuse in a local hotel, where he later allegedly murdered her.[4] His arrest on April 20, 2009, caused a public outcry against the widespread availability of thinly-veiled ads for prostitution on Craigslist.com

In response to mounting public pressure, Attorney Generals from several states demanded the closure of the “erotic services” section of Craigslist the following month.[5] Ultimately, Craigslist agreed to close the controversial section on May 13, 2009, and to replace it with a closely-monitored “adult” section.[6] However, that substantial concession was not enough for South Carolina Attorney General Henry McMaster, who demanded that Craigslist block all of the ads relating to prostitution or pornography from South Carolina resident’s view.[7] In that regard, he publicly stated: “The only agreement we could have is they block everything (sexually explicit) in South Carolina.”  McMaster then penned a letter, which was prominently displayed on the Attorney General’s website, threatening the filing of criminal charges in the event Craigslist did not remove all offending material by 5:00 pm Friday, May 15, 2009.[8]

That no-so-subtle threat turned out to be “a bridge too far” for McMaster in his battle with Craigslist.  The ultimatum provided Craigslist with the opportunity to sue South Carolina law enforcement officials, and seek a federal injunction preventing McMaster from carrying out his threat.[9] Craigslist’s lawsuit resulted in substantial negative publicity for South Carolina’s Attorney General, as the press began to pick up on the critical First Amendment concerns generated by law enforcement’s demand for censorship of Craigslist.com.  The flap also generated some important public discussion of the protections afforded to user generated content websites under federal law; specifically Section 230 of the Communications Decency Act, which provides a safe harbor for websites that allow third party postings.  Had McMaster done even the slightest bit of homework on the issue, he would have undoubtedly concluded that his demand – requiring a complete ban on access to constitutionally-protected, erotic material – was actionable under the First Amendment.  The aggressive litigation response by the site required some fancy backpedaling by McMaster, as he tried to spin this as a victory for South Carolina, and take credit for the elimination of the erotic services category from Craigslist.  Unfortunately for McMaster, Craigslist had removed the disputed classified section even before he submitted the ultimatum, and that point was not lost on the local and national media covering the dispute.[10]

Shortly after filing the lawsuit, McMaster’s legal team wisely consented to the issuance of a temporary restraining order, preventing his office from initiating any criminal charges as a result of Craigslist’s classified ads.[11] In the end, McMaster agreed not to file the threatened criminal charges against Craigslist, thereby resolving that issue in the lawsuit.[12] Had McMaster not backed down, the court would have almost certainly enjoined the threatened criminal prosecution on its own.

The legal arguments advanced by Craigslist in this lawsuit are of significant importance to adult webmasters operating any type of user generated content site or community forum.  Given the widespread popularity of this business model, and its many permutations, an analysis of the legal issues raised by the Craigslist case is important to the industry as a whole.

First Amendment – Prior Restraint Issues

The most compelling argument that can be advanced by Craigslist in this case is premised on the First Amendment’s protection of free expression.  Not only does Craigslist have the right to publish its ads, its users have a right to receive the information found on the website.[13] Important in the First Amendment analysis is the fact that Craigslist does not (and from a practical standpoint, cannot) review or approve each advertisement before it is published on the website.  Given the sheer number of ads appearing throughout this classified mega-site, any review or approval requirement would likely put the Company out of business.  Accordingly, even if McMaster is correct about the legality of the advertisements at issue, Craigslist is not in control of the content of its classified ads, and therefore would not likely possess the requisite scienter or criminal intent to violate either prostitution or obscenity laws.

With respect to obscenity, it must be noted that all sexually-explicit materials appearing on the Internet are presumed to be protected by the First Amendment, unless and until they are found obscene by the trier of fact.[14] Accordingly, law enforcement cannot constitutionally issue a blanket demand that Craigslist prevent any obscene material from appearing on the website, since Craigslist cannot know, in advance, which materials might be found obscene by a judge or jury at some place and time in the future.[15]

McMaster is not the first law enforcement official to use the heavy hand of possible obscenity prosecution as a tool to accomplish censorship of erotic materials.  In the 1970’s, law enforcement would routinely harass retailers selling erotic publications such as Penthouse magazine, with the intent to force the magazine off the shelves.[16] The Fifth Circuit Court of Appeal affirmed the issuance of an injunction prohibiting this sort of bad faith harassment and prosecution of the retailers, finding the activity to be an unconstitutional prior restraint on speech.  In a similar case, an anti-pornography campaign was put to an end by the Ninth Circuit Court of Appeal which found the effort to be unconstitutional.[17] There, the Mayor of Phoenix, Arizona even went so far as to suggest that the owners and clerks working in newsstands and bookstores selling sexually-explicit material were involved in the Mafia.[18] As the court explained: “[This sort of activity] can put the plaintiffs out of business without ever convicting any of them of anything.”[19] Numerous other bad faith prosecutions, in retaliation for the exercise of First Amendment rights, have been enjoined by the courts, over the years.[20]

McMaster appears to be particularly concerned about the availability of “pornography” to South Carolina residents.[21] However, the only way to ensure that this state’s residents will not be exposed to such material would be to block the entire website, including all its categories, from the State of South Carolina.  Again, Craigslist cannot control the nature of the content appearing in its classified ads, and therefore complete censorship is the only way to comply with South Carolina’s demands.  Needless to say, the demand to block pornography from South Carolina is, itself, blatantly unconstitutional, given the First Amendment protections afforded to sexually-explicit speech.[22] Accordingly, it appears that Craigslist would be successful in its claim that compliance with McMaster’s ultimatum constitutes an illegal prior restraint on protected speech.

Section 230 Issues

Sites like Craigslist are protected not only by the First Amendment, but also by specific provisions of federal law.  When enacting the Communications Decency Act,[23] Congress wisely recognized the practical problems that would result from any attempt to impose liability on website operators for the speech or communications of third parties.  If such liability were permitted, Internet service providers could be held responsible for the content of each and every website hosted on their servers, and search engines could be held responsible for the content of all of the search results provided by their services.  To alleviate this concern, Congress included Section 230 in the Communications Decency Act, which provides: “No provider…of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[24] This “safe harbor” language has been given broad scope and effect by the courts.[25] Websites that allow third party content have been found to be immune from a wide variety of civil claims ranging from housing discrimination suits, to negligence, to civil rights.[26] Federal intellectual property claims are excluded from the scope of Section 230 immunity; however another federal statute, the Digital Millennium Copyright Act,[27] provides its own similar safe harbor for copyright claims, if certain conditions are met.[28]

So what about criminal prosecution?  That is the big, unanswered question in this area of law.  Thus far, a website service provider has never been found to be immune from criminal prosecution as a result of Section 230 immunity.  While all of the reported cases interpreting this section have arisen in the context of a civil claim, the statute, itself, does not appear to be limited to civil liability protection.  Instead, the law broadly states: “…no liability may be imposed under any state or local law that is inconsistent with this section.”[29] South Carolina obscenity and prostitution laws may well be inconsistent with Section 230 immunity if they are imposed against a website operator, and based on the communications posted by third parties.  Accordingly, the Craigslist case may be the first to squarely confront the scope of Section 230 immunity, in the context of criminal prosecution.

A ruling in favor of Craigslist would be a game changer for user generated content websites, as it would open the door for extremely broad legal protections to be afforded to these websites.  It may be, however, that in order for the state or local law to be considered “inconsistent” with Section 230 that it would have to deal with a substantive criminal offense that is similar to conduct addressed in the Communications Decency Act (“CDA”).  The CDA imposes criminal liability on individuals who transmit obscene materials via the Internet.[30] Under the more narrow interpretation, only state level obscenity laws would be preempted by Section 230.  This would still benefit Craigslist, since at least a portion of McMaster’s threats were premised upon prosecution for pornographic and/or obscene images.  However, the prostitution charges may survive the safe harbor, under this analysis.

The only case, of which this author is aware, where the argument regarding Section 230’s applicability to criminal prosecution was raised, was in the highly-publicized obscenity prosecution by Polk County, Florida against Christopher M. Wilson.[31] There, the Defendant argued in his pretrial Motion to Dismiss that Florida’s obscenity law was preempted by Section 230, since the images forming the basis for the obscenity allegations were posted by third parties on his user generated content site, over which he exercised no content control.  Fortunately for Wilson, a higher court intervened in the case, issuing a writ of habeas corpus, finding the Defendant’s pretrial detention to be illegal, thereby clearing the way for a favorable resolution of the case involving no felony conviction and no jail time.[32] As a result, a decision was never issued on the merits of the argument, so the issue has yet to be addressed by the courts.

User generated content sites of all makes and models will be carefully watching the outcome of the Craigslist litigation, given the important Section 230 issues at stake.

Commerce Clause Issues

Craigslist also raises the important question of whether McMaster’s threatened state law prosecution triggers potential Commerce Clause concerns.  While issues surrounding the dormant Commerce Clause of the United States Constitution are somewhat esoteric for the average adult webmaster, they may prove to be critically important for Craigslist and user generated content sites throughout the nation.

In its most basic form, the argument goes like this: The individual states should not be permitted to impose a hodgepodge of inconsistent state laws on national (or international) commercial activities.  Such activities can only be regulated at the federal level.  This makes good sense, since little issues like the mandatory width of railroad tracks need to be uniform throughout the fifty states so trains can stay on the tracks when crossing state lines.  Similarly, restrictions on commercial airlines, importation of foreign goods, and telecommunication systems all need to be regulated at the federal level, for our country to successfully function as a cohesive collection of individual states.

This Commerce Clause argument has been accepted in the context of Internet commerce on numerous occasions, where the states have attempted to impose restrictions on the transmission of sexually explicit materials via the Internet.[33] In every case where that issue has been raised, the state statute was declared unconstitutional in violation of the dormant Commerce Clause.  Any attempt to impose state obscenity or prostitution laws on websites implicates similar commerce clause concerns.  Each statute, and each case is different, and legitimate distinctions may exist with respect to regulation of targeted classified ads focusing on specific geographic areas.  Moreover, the Commerce Clause analysis is nuanced and complex, often making the outcome unpredictable.  But Craigslist has raised a legitimate and important issue of constitutional law in response to South Carolina’s attempt to impose state law restrictions on Internet communications.  Even if the dormant Commerce Clause is found to be inapplicable to geo-targeted online classified ads, other user generated sites may have more compelling and successful arguments in future cases.

The Court of Public Opinion

McMaster has taken quite a bit of heat for his ham-fisted approach to law enforcement against such a popular and widely used website as Craigslist.  But the Internet industry should be thankful for his bumbling, in some respects.  Because he went too far in demanding censorship of Craigslist.com, the public discourse has turned away from prostitution, pornography, and decency, to First Amendment censorship and Section 230 protection.  Many law enforcement officials, who might have made the same freshman mistake as McMaster, have now been educated regarding the unique protections afforded to user generated content sites, and may be more hesitant to take action if they see something questionable on one of these websites.  If the target of the investigation had been a fetish tube site, the public discussion of the issue may have been quite different and more supportive of the Attorney General’s tactics.  But since the target was Craigslist, which is used by employers, friends, and family throughout the nation, the public was decidedly more sympathetic.  If law is to be made in this area, it is better that Craigslist bring the case to court as opposed to some other plaintiff with less public acceptance.  While Lady Justice is blind, she has been known to have x-ray vision on occasion, with legal decisions sometimes being influenced by the identities of the parties.

Without a doubt, McMaster stepped in a large pile of excrement with his overzealous bullying tactics.  But the rest of us can sit back and enjoy the show as the courts of law and public opinion sort out just how much protection user generated content websites should enjoy when the next bully with a badge decides to impose an agenda of Internet censorship.

Lawrence G. Walters, Esquire, is a partner with the law firm of Weston, Garrou, Walters & Mooney, with offices in Orlando, Los Angeles, Salt Lake City, and San Diego.  Mr. Walters represents clients involved in all aspects of the adult industry and has practiced law for two decades. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 45 years.  All statements made in the above article are matters of opinion only, and should not be considered legal advice.  Please consult your own attorney on specific legal matters.  You can reach Lawrence Walters at Larry@FirstAmendment.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”


[1] S. Kirshner, “Craigslist CEO Needs Help on His Soundbites,” Boston.com (April 27, 2009), found at: http://www.boston.com/business/technology/articles/2009/04/27/craigslist_ceo_needs_help_on_his_sound_bites/.

[2] J. Skillings, “Craigslist sues So. Carolina attorney general,” CNET News (May 20, 2009), found at: http://news.cnet.com/8301-1023_3-10245380-93.html.

[3] “Sheriff sues Craigslist as ‘largest source’ of prostitution,” Chicago Breaking News Center (March 5, 2009), found at: http://www.chicagobreakingnews.com/2009/03/sheriffs-lawsuit-says-craiglist-largest-source-of-prostitution.html.

[4] “Med Student Arrested In Craigslist Murder,” CBS News (April 20, 2009), found at: http://www.cbsnews.com/stories/2009/04/20/national/main4958272.shtml.

[5] A. Johnson, “Authorities seek to crack down on Craigslist,” NBC Washington (May 6, 2009), found at: http://www.nbcwashington.com/around_town/the_scene/Authorities_seek_to_crack_down_on_Craigslist.html.

[6] G. Sandoval, “Craigslist to remove ‘erotic services’ section,” CNet News (May 13, 2009), found at: http://news.cnet.com/8301-1023_3-10239610-93.html?part=rss&subj=news&tag=2547-1023_3-0-5.

[7] C. LeBlanc, “McMaster says no to Craigslist deal,” The State (May 14, 2009), found at: http://www.thestate.com/local/story/785877.html.

[8] Read McMaster’s letter to Craigslist here: http://www.scag.gov/newsroom/pdf/2009/craigslist_letter.pdf.

[9] “Craigslist sues So. Carolina attorney general,” supra.

[10] E.g., M. Arrington, Stand firm, Craig (and Jim), Washington Post (May 18, 2009), found at: http://www.washingtonpost.com/wp-dyn/content/article/2009/05/18/AR2009051800628.html;

Bad Publicity May Backfire, The Independent Mail (May 19, 2009), found at: http://www.independentmail.com/news/2009/may/19/bad-publicity-might-backfire/

[11] Craigslist, Inc. v. Henry D. McMaster, et. al., Civil Action No. 2:09-1308-CWH (May 22, 2009) (Consent Order, Honorable Weston Houck).

[12] “McMaster says no to Craigslist deal,” supra.

[13]Griswold v. Connecticut, 381 U.S. 479, 482 (1965).

[14] Reno v. ACLU, 521 U.S. 844 (1997); Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

[15] Of course, the inability to know, in advance, what materials are illegal should render all obscenity laws unconstitutional, in violation of Due Process rights, in this author’s view, however obscenity laws have inexplicably withstood such challenges over the years.

[16] Penthouse Int’l Ltd. v. McAuliff, 610 F.2d 1353 (5th Cir. 1980), cert. dismissed 447 U.S. 931 (1980).

[17] Krahm v. Graham, 461 F.2d 703 (9th Cir. 1972).

[18] Id. at 705-06.

[19] Id.

[20] E.g. Weston v. McDaniel, 760 F.Supp. 1363, 1371 (N.D. Ga. 1991) (grand jury proceeding against criminal defense attorney enjoined as retaliatory against Plaintiff exercising his right to Freedom of Speech); Entertainment Ventures, Inc. v. Brewer, 306 F.Supp. 802, 822 (N.D. Ala. 1969) (enjoining all state criminal obscenity prosecutions); Daughterty v. City of Eastpoint, 447 F.Supp. 290, 296 (N.D. Ga. 1978) (prosecution under sign ordinance enjoined not withstanding pendency of appeal of criminal action); The Video Store, Inc. v. Holcumb, 729 F.Supp 579 (S.D. Ohio 1990) (state court criminal prosecutions against video store owner enjoined because of bad faith harassment); Empire News, Inc., v. Soloman, 818 F.Supp. 307 (D.Nev. 1993) (adult bookstore licensing law prosecutions against owners of adult bookstore enjoined on First Amendment grounds).

[21] S. Gaudin, “State AG ultimatum to Craigslist: Pull racy ads or face prosecution,” Computerworld (May 6, 2009), found at: http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9132631.

[22] Reno, supra.

[23] 47 U.S.C. § 230(c)(1).

[24] Id., see also Section 230(e)(3): “No cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with this section.”

[25] Chicago Lawyers’ Committee for Civil Rights Under Law, Inc., v. Craigslist, Inc. 519 F.3d 666 (7th Cir. 2008); Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir. 2003); Doe v. AOL, 783 So.2d 1010 (Fla. 2001) cert. den. 534 U.S. 891 (2001)

[26]Chicago Lawyers’ Committee for Civil Rights Under Law, Inc., v. Craigslist, Inc. 519 F.3d 666 (7th Cir. 2008)(fair housing claims) Doe v. AOL, 783 So.2d 1010 (Fla. 2001) cert. den. 534 U.S. 891 (2001)(negligence); Noah v. AOL Time-Warner, Inc., 261 F.Supp.2d 532, 538 (E.D. Va. 2003)(civil rights).

[27] 17 U.S.C. § 512.

[28] Id.

[29] 47 U.S.C. § 230(e)(3) (emphasis added).

[30] The original CDA also included a broad prohibition on any indecent material on the Internet; however those provisions were invalidated by the United States Supreme Court in Reno, supra on First Amendment grounds.

[31] State of Florida v. Christopher M. Wilson; Case No. CF-05-7738 (Fla. 10th Cir. 2006).

[32] See, J. Geary, “Wilson Avoids Jail,” The Ledger (April 22, 2006), found at: http://www.theledger.com/article/20060422/NEWS/604220360?Title=Owner-of-Controversial-Web-Site-Gets-5-years-Probation-.

[33] American Book Sellers Foundation for Free Expression v. Dean, 202 F.Supp.2d 300 (D. Vt. 2002); PSI Net, Inc. v. Chapman, 167 F.Supp. 878 (W.D. Pa. 2001), question certified, 317 F.3d 413 (4th Cir. 2003); Cyberspace Communications, Inc. v. Engler, 142 F.Supp.2d 827 (E.D. Mich. 2001); ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999); American Libraries Association v. Pataki, 969 F.Supp. 160 (S.D.N.Y. 1997); Center for Democracy & Technology v. Pappert, 337 F.Supp.2d 2006 (E.D. PA 2004); Southeast Booksellers Ass’n v. McMaster, 371 F.Supp.2d 773 (D.S.C. 2005).