Thu, 08 Nov 2018

CDA 230 Doesn't Support Habeus Petition by 'Revenge Pornographer'

Furnished content.


As you may recall, Kevin Bollaert ran UGotPosted, which published third-party submitted nonconsensual pornography, and ChangeMyReputation.com, which offered depicted individuals a "pay-to-remove" option. Bollaert appeared multiple times in my inventory of nonconsensual pornography enforcement actions. Bollaert's conduct was disgusting, and I have zero sympathy for him. Nevertheless, I also didn't love the path prosecutors took to bust him. The lower court convicted him of 24 counts of identity theft and 7 counts of extortion and sentenced him to 8 years in jail and 10 years of supervised release. Pay-to-remove sites are not inherently extortive, and identity theft crimes often overreach to cover distantly related activities.Worse, the appeals court affirmed the convictions despite a significant Section 230 defense. The opinion contorted Section 230 law, relying on outmoded legal theories from Roommates.com. Fortunately, I haven't seen many citations to the appellate court's misinterpretation of Section 230, so the doctrinal damage to Section 230 hasn't spread too much (yet). However, that still leaves open whether Bollaert's conviction was correct.Bollaert raised that issue by filing a habeus corpus petition in federal court. Such petitions are commonly filed and almost never granted, so Bollaert's petition had minimal odds of success as a matter of math. Not surprisingly, his petition fails.The district court says that Section 230's application to Bollaert's circumstance does not meet the rigorous standard of "clearly established federal law":

In this case, the Supreme Court has never recognized that the CDA applies in state criminal actions. The Supreme Court has never indicated circumstances that would qualify a state criminal defendant for CDA immunity. Absence of applicable Supreme Court precedent defeats the contention that Petitioner is entitled to CDA immunity under clearly established federal law...federal circuits have not applied CDA immunity in state criminal actions or indicated circumstances that would qualify a state criminal defendant for CDA immunity. Petitioner cannot satisfy 2254(d)(1) with district court opinions applying CDA immunity in state criminal actions.

the California Court of Appeal performed an exhaustive and comprehensive analysis of the applicable circuit court decisions before concluding Petitioner is an information content provider under Roommates. The state court reasonably interpreted Roommates and Jones, and reasonably concluded that Petitioner "developed, at least in part, the offensive content on his Web site by requiring users to input private and personal information as a condition of posting the victims' pictures, making him an information content provider within the meaning of the CDA."

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