Excellent news, two part article
Fourth Circuit Goes On The Attack Against Section 230 In A Lawsuit Over Publication Of Third Party Data
1 of 2
Legal Issues
from the immunity-applies,-unless-the-judge-doesn't-like-Section-230 dept
Mon, Nov 7th 2022 09:35am - Tim Cushing
Prior to the turn of the century, the Fourth Circuit Court of Appeals handed down a formative decision that helped craft the contours of Section 230 immunity. The case — Zeran v. America Online — dealt with a tricky question: whether or not a platform’s failure to moderate content (in this case, posts that contained Zeran’s phone number and oblique accusations he approved of the Oklahoma City federal building bombing) made the platform liable for the user-generated content.
The Appeals Court didn’t have much to work with at that point. Section 230 of the Communications Decency Act was less than a year old at the time Kenneth Zeran filed his lawsuit against AOL. Nevertheless, the court recognized AOL’s immunity from the suit. And it did this by applying the new CDA clause retroactively to apply to alleged wrongs against Zeran that were committed nearly a year before the CDA went into effect.
Flash-forward more than a quarter century, and the Fourth Circuit Court of Appeals has delivered another potentially groundbreaking decision [PDF], albeit one that goes the other direction to hold a website directly responsible for content posted by others.
In this case, the plaintiffs and their class action lawsuit sought to hold Public Data, LLC directly responsible for content it gathers from other sources and republishes on its own platforms. The data collected by Public Data (the name the court uses to collectively refer to the multiple parties collecting and disseminating this data) comes from public records. This includes civil and criminal court proceedings, voting records, driver data, professional licensing information, and anything else generated by government agencies Public Data can hoover up.
It then consolidates the data to make it more user-friendly, reformatting raw documents to deliver snapshots of people Public Data’s customers wish to obtain info about. The plaintiffs allege this process often removes exonerative data about criminal charges and reduces criminal background info to little more than a list of charges (with no data on whether these charges resulted in a conviction). Making things worse, Public Data’s summaries apparently include “glib statements” that misrepresent the entirety of the data collected from public sources. Public Data makes it clear to users that it is not responsible for any inaccuracies in the raw data it collects and collates. It also refuses to correct incorrect data or remove any inaccurate information it has scraped from public records databases.
The value of this information — no matter how inaccurate or incomplete — is undeniable. The plaintiffs note that Public Data has nearly 50 million customers. And presumably few of those customers take the repackaging of scraped data — with or without Public Data’s commentary — with a grain of salt, despite the cautionary statements issued by Public Data.
This all sounds like the collection and republication of data generated by third-parties. What is or isn’t passed onto users sounds pretty much like content moderation, something that’s not only protected by Section 230 immunity, but the First Amendment as well. Since those are the most obvious impediments to the lawsuit, the plaintiffs have chosen to frame this repackaging of data (and Public Data’s editorial decisions) as violations of the Fair Credit Reporting Act (FCRA).
The Appeals Court should have recognized this tactic for what it was. Instead, it decides the acts the lawsuit is predicated on are somehow exempt from Section 230 immunity. Eric Goldman, who has a long history of covering Section 230 cases and advocating for its continued existence, saw this disturbing decision coming a long time ago, back when the lower court decided Section 230 immunity applied but did so in a way that invited novel interpretations of this protection…
https://www.techdirt.com/2022/11/07/fourth-circuit-goes-on-the-attack-against-section-230-in-a-lawsuit-over-publication-of-third-party-data/
https://twitter.com/JasonFyk/status/1597995430910230529?s=20&t=GWjSE9AsIxL7ZF3fXkECUg