more bad lawyering about Parler

Mon Jan 11 10:51:18 UTC 2021

On Mon, Jan 11, 2021 at 02:33:08AM -0800, William Herrin wrote:
> On Mon, Jan 11, 2021 at 2:19 AM Danny O'Brien <danny at spesh.com> wrote:
> > On Sun, Jan 10, 2021 at 8:54 PM William Herrin <bill at herrin.us> wrote:
> >> there have been some real post-CDA head scratchers where
> >> a court decided that an online service exercised sufficient control of
> >> the content to have made itself a publisher.
> >
> > You really need to give citations here, because IMHO not only is this *exactly* the scenario that Section 230 was intended to provide legal clarity regarding (and so protect service providers from this kind of moderation double-bind), but as I understand it pretty much all the subsequent caselaw has *strengthened* the ability for providers to moderate and manage content, including user-generated content, without triggering liability.
> 
> Well, for example, Oberdorf v. Amazon.com, No. 18-1041 (3rd Cir. July
> 3, 2019) which found that Amazon was a seller of goods and not merely
> hosting information about a third party's sale, and thus subject to
> product liability law for the product that was sold. But in the Erie
> Insurance case, with similar circumstances, the court found the
> opposite, that section 230 barred the plaintiff from suing Amazon over
> a defective third-party product.

These seem to be examples of situations where Amazon and Erie were
selling things (other than Internet access/services), and were not
merely acting as a service provider. 

I don't think that, back when the CDA was written, the service provider
world ever expected random retailers or other sellers of products and
services to be able to claim section 230 protections just because the
transaction happened to be enabled by the Internet.  It also isn't clear
under what theory 230 protections would take precedence over other
protections such as product liability law.  I don't think that the fact
that you might also sell Internet services creates an umbrella.

Are there examples that do not conflate other areas of the law?

Given the subject here, it seems relevant to want examples closer to
what Parler and service providers providing them services or connectivity
might need to consider.

... JG
-- 
Joe Greco - sol.net Network Services - Milwaukee, WI - http://www.sol.net
"The strain of anti-intellectualism has been a constant thread winding its way
through our political and cultural life, nurtured by the false notion that
democracy means that 'my ignorance is just as good as your knowledge.'"-Asimov