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Libel Lawsuit Has A Bunch Of Crazy Ideas About How Section 230 Immunity Works

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If you want a masterclass in misunderstanding pretty much everything about Section 230 of the CDA, this libel lawsuit -- filed by a massage business owner against a Redditor, Reddit, and a few board members -- will fill this really weird hole in your life. I won't judge. But I will ask questions. Judgmental questions. (h/t Eric Goldman)Also, it's a RICO lawsuit.There's a lot to unpack here, so we'll start at the top. The plaintiffs claim someone known as "DiggDejected" on Reddit libeled their massage business by claiming… well, the claims aren't exactly clear. The lawsuit claims the disputed content is "libel per-se," but never actually details the content of the disputed posts other than say one of them suggested the its spa parties for kids "gave kids diseases."The complaint [PDF] complains Reddit has never removed the posts the plaintiffs claim are "illegal" defamation. It also asks the court to ignore the fact that the statute of limitations has run out on some of the content they're suing about. It's that kind of a lawsuit.The RICO allegations are as bad as you'd expect. Possibly even worse. First, the plaintiffs claim the Redditor, Reddit board members, and the site itself are conspiring to keep this libelous content on the site. That's only part of it, though. There's also a conspiracy theory (in the Alex Jones way, not the "actionable tort" way) presented that says the members of Reddit's board being sued are also involved with Y Combinator, the famous startup accelerator.Apparently, Y Combinator funded a mobile on-demand startup called "UnwindMe." The plaintiffs claim this company is in direct competition with their company, which also provides on-call massages. This startup is now dead -- the one directly funded by Y Combindator. It was then acquired by Soothe, Inc., another competitor not linked with the defendants, but the lawsuit imagines whatever compensation they obtained from the sale of UnwindMe motivated Reddit's refusal to take down derogatory posts about the plaintiffs and their massage company.After delivering several paragraphs detailing this highly-attenuated conspiracy theory (and doing irreversible damage to readers' brain cells and patience), the plaintiffs arrive at this conclusion.

The above statements establish that there was a financial and racketeering motive for the maintenance of this post. This could have easily been at the request of Justin Bassett, Alexis Ohanian, or Samuel Altman, or anyone else who was invested in Soothe, in order to prevent our success as a major competing brand to Soothe, Inc. It is quite possible and, in fact, likely, that the other founders of Reddit are also invested in Soothe, Inc., with the potential for racketeering profits hanging in the balance of the success or failure of our competing company.
So... that's the RICO end of it, summarized but probably not clarified. I'm sorry. I tried.Here's the Section 230 end of it, which has to be read to be believed. And by "believed," I mean proof exists that people are failing to comprehend Section 230 immunity in new and exciting ways.The first way is to claim that Section 230 immunity for social media platforms shouldn't exist because it prevents plaintiffs from suing platforms for content they didn't create. Seriously.
The purpose of our court system is providing a lawful forum for the redress of grievances. Section 230 of the Communications Decency Act should not, then, be read, in such a manner, that a libeled, or otherwise illegally and unlawfully violated, person, persons, business, or service provided by a business, cannot find suitable legal remedy for provable crimes of libel, and others, with no means of having such harmful statements deleted, retracted, or have anyone whatsoever, held liable for various damages arising from violations of various rules and laws.
Just to be clear: at the federal level, libel is not a crime. Just to be even clearer, Section 230 immunity only prevents plaintiffs like these from suing Reddit over content created by third party users. It does not prevent them from suing the person who posted it. All these plaintiffs have to do is remove every defendant but the one that actually posted the supposed libel and all these "problems" with Section 230 will simply melt away.But no. There's more wrong to be had. The plaintiffs are right the CDA was enacted to help protect children from online pornography. But everything else is just wrong. The lawsuit actually claims FOSTA and its Section 230 collateral damage was not just instrumental, but essential, to the shutdown and prosecution of Backpage and its owners.
In addition, a more recent law has removed many of the protections afforded by Section 230, in giving specific redresses to persons who have been violated by certain forum type websites. In fact, BackPage.com was literally shut down (actually seized by the federal government "as part of an enforcement action by the [FBI], the [USPIS], and the [IRS] Criminal Investigation Division", without warning, upon passage of the FOSTA act) over third party posting of content to their site on the basis of the newly enacted FOSTA Bill. This bill removes the legal shield for websites that post content created by others, and enables states and victims to obtain redress and recover damages.This law, specifically, caused the shutdown and seizure of the website backpage.com, which was a known advertising forum for prostitution, human trafficking, and sex slavery, while hiding behind the shield of Section 230. Just as in that instance, the laws should be interpreted as they were designed to be interpreted, and, as stated before, should not allow perpetrators of real crimes to hide behind laws that were never meant to protect them from prosecution for true criminal acts.
This is wrong. Just completely wrong.The other stuff in there, I assume, alludes to the RICO, but it's impossible to tell since the plaintiffs fervently believe libel is also a criminal act -- something evidenced by all the FBI raids targeting suspected defamers.Building on the premise that the CDA was meant to protect children, the plaintiffs say Section 230 immunity should be ignored by the court and replaced with some sort of Section 230 protection for the plaintiffs. I can't try to understand this for you. You're on your own.
PROTECTION UNDER SECTION 230 FOR PLANTIFFS, RATHER THAN DEFENDANTS. A Child who has gone to our parties, or a classmate, or friend, of a kid who has attended our parties, may see the post and (wrongly ) believe they, themselves, or their fnend who attended, has contracted a disease. Such is not beyond reasonable,as we host Kids Galleries that the children visit, and we've had thousands of attendees. Such would clearly be traumatic and stress-producing, possibly causing social stigma, and is clearly within purview of the main intent of Section 230. So rather than Defendants being protected. Plaintiffs assert that we, Donn Albano, Heather Miller, Mountainside Diversified,and our brands. Mobile kids Spa Parties and Mountainside Diversified, and websites NJmassages.com, and NJmassage.info, are in fact, the protected parties in this instance.
I guess I can get behind this. I agree the plaintiffs shouldn't be sued for derogatory content posted by Redditors.The lawsuit ends on a hopeful note though. Well, it actually goes on for a few more paragraphs, including demands for $1 million, immediate and permanent removal of "hateful and harassing statements," and for the judge to order this removal even if it finds Section 230 immunizes Reddit against this lawsuit. But the hopeful note is exactly that: the airing of a wishlist, following the airing of grievances.
It is my hope that this court will understand that there is a lot more going on in this particular case than simply a case of a third party posting a random statement on Reddit, and that this particular case actually seems to involve collusion and conspiracy, in violation of multiple federal laws and statutes, and that even smaller businesses should be protected from predatory companies, whether they are social media sites or other types of sites. Section 230 should not be broadly interpreted in this instance, as it does not apply when conspiracy, as demonstrated herein, has occurred. The CDA was not drafted to serve as a blanket immunity against redress, or a nullification of legal due process.
Ok, then. The "understand" part of this wish is going to need a hell of a lot of hope. This lawsuit, like many other lawsuits (pretty much all other lawsuits, actually) is simply asking for the court to find in favor of its legal theories and punish/reward appropriately. That's fine. But you can't win if you're so completely wrong about the law, as these plaintiffs are.

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Bill Introduced To Create A Warrant Requirement For Border Device Searches

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With a great deal of luck, we may finally get a bit more respect for Constitutional rights at the border. The Supreme Court may have ruled that searches of cellphones require warrants, but that ruling doesn't apply within 100 miles of any US border (that includes international airports). Warrantless device searches happen regularly and with increasing frequency.So far, courts have been hesitant to push back against the government's assertions that border security is more important than the rights guaranteed by the Constitution. And if the courts do feel something should be done to protect US citizens and foreign visitors, they feel it should be done by Congress, not by them.So, it's good to see Congress may actually do something about this. Jack Corrigan of Nextgov has the details:

Sens. Ron Wyden, D-Ore., and Rand Paul, R-Ky., on Wednesday introduced legislation that would increase digital privacy protections for U.S. residents crossing the border and limit the situations in which agents could legally seize their devices. If enacted, the Protecting Data at the Border Act would curb law enforcement’s extensive authority over electronic information at the border.Rep. Ted Lieu, D-Calif., introduced a companion bill in the House.
The bill [PDF] would institute a warrant requirement for border device searches, which is a really weird sentence to type considering the Supreme Court of the United States of America instituted a warrant requirement for device searches five years ago. But there it is: an attempt to codify a SCOTUS decision so it's respected by US government agencies.It also prevents border agents from denying entry to anyone refusing to disclose passwords or unlock devices during screening. It also blocks them from detaining anyone for more than four hours in hopes of turning denials into consensual searches.Unfortunately, there are some loopholes. And one of those is sizable. "Emergency situations" allow border agents to bypass the Constitutional niceties. One of those is an old -- and super-vague -- favorite:
[c]onspiratorial activities threatening the national security interest of the United States
That's the catch-22. The law can't pass without this exception and it's this exception that will be abused the most. But the institution of a warrant requirement will force the government to put a little more effort into its "national security" hand-waving if it hopes to use evidence pulled from devices in court.Also important is the institution of documentation procedures for consent searches. It won't be enough for officers to claim detainees volunteered passwords or otherwise agreed to have their devices searched. They'll need to have the whole thing documented and the form signed by the detainee. Every device search must be documented as well, whether or not a forensic search was performed.It's a good bill, national security exception notwithstanding. But it's being lobbed into an unwelcoming political arena. President Trump is still demanding a wall and has declared a national emergency simply because he wants to discourage immigrants from coming to this country. Border security is national security, according to this administration, even when there's little evidence showing immigrants are more likely to commit acts of terrorism, never mind regular crime. This administration and those backing it (and they are many) are more than happy to suspend the Bill of Rights at the border for as long as they're in power. That's the reality of the situation.While this bill would bring border agencies into alignment with Supreme Court precedent, it's highly unlikely this won't be rejected by the President if it even manages to make it that far.

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