Difference between revisions of "Legislation"

Revision as of 10:27, 27 January 2009

This is a roundup of major Internet-related legislation that a site such as Dreamwidth must follow, or court decisions that can have a heavy bearing on the operations of a site such as Dreamwidth. Of necessity, it's a high-level overview. For more information on these, Wikipedia generally has excellent writeups; you may also be interested in poking around Chilling Effects, the Electronic Frontier Foundation, and the Stanford Center for Internet and Society.

Obligatory disclaimer: this is not legal advice, and in many cases this is highly simplified. In many other cases, the specific implementation of these laws is hotly debated, or the law's provisions have never been tested in court. I've tried to separate notes on what the law actually says vs. commonly-accepted interpretations of how the law might be enforced wherever possible.

If you're familiar with Internet legislation and Internet case law, please feel free to add to or expand upon anything in here.

Through all of this, we use "OSP" (Online Service Provider) as the term for "website". Dreamwidth is an OSP.

Section 230 of the Communications Decency Act (CDA)

• 47 USC 230
• More information: Wikipedia, EFF Blogger's FAQ

We place this first, because Section 230 immunity is a vital concept for any OSP. While the majority of the CDA was struck down as unconstitutional because it placed overly-broad restriction on protected speech, this part of it remained, and can actually be very beneficial for an OSP seeking to reduce its liability.

Broadly speaking, 43 USC 230 says that no OSP can be treated as the "publisher" of material posted by its users (for the purposes of determination of liability), unless the OSP has made significant enough alterations to the material to cause them to stand as the co-publisher. What this means is that if someone posts something illegal to Dreamwidth, Dreamwidth isn't liable for it, except under certain very narrow circumstances; the liability rests solely with the person who posted it.

The exceptions to this immunity are in the fields of federal criminal law violations, intellectual property law violations, and communications privacy law violations. (More about these in a bit.)

Section 230 was largely influenced by two prior cases; 1991's Cubby v. CompuServe, which held that OSPs weren't responsible for material published by their customers, and Stratton Oakmont, Inc. v. Prodigy Services Co., which held that because Prodigy exercised some restraint on their customers' speech (by employing filtering software and removing certain posts of their own volition), they were therefore responsible for everything that they missed. Stratton Oakmont v. Prodigy was specifically overturned by Section 230, restoring back the immunity that the decision had stripped. (And we all breathed a little easier.)

Two important cases that have helped to refine the concept of Section 230 immunity are Fair Housing Council of San Fernando Valley v. Roommates.com, LLC (9th Cir. May 15, 2007) and Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc. (N.D. Ill. Nov. 14, 2006). Both of these cases had to do with housing law, and revolve around the concept that no one can discriminate on the basis of any one of many "protected characteristics" when it comes to housing. (So you can't write a classified ad for a roommate or a sublet stating a preference for individuals of a certain sex, race, sexual orientation, etc.)

In Chicago Lawyers' Committee v Craigslist, the court held that because Craigslist clearly warned that stating an illegally-discriminatory preference was illegal, did not pre-screen or pre-approve its ads, and offered a way for people to report (and have removed) illegal ads, they were not "co-publishers" of the material, and they therefore held Section 230 immunity against any illegally-discriminatory housing ads posted. In Fair Housing Council v Roommates.com, the court held that because Roommates.com provided a search form for potential landlords/renters that included the ability to search on discriminatory preferences, and because those search parameters could be used to match up housing offers with potential tenants, Roommates.com was facilitating the expression of illegally-discriminatory preferences in housing.

Right now, no one is exactly certain where the lines are drawn when it comes to OSPs making a significant enough contribution to the material posted to their site to be named a co-publisher of the material. This is, however, the #1 reason why a service might step back and refuse to edit or change any material posted to their service. The more an OSP interferes with the content that's posted, the more liability they assume for it.

This is why any smart OSP will avoid editing, policing, or pre-screening any content on its service. The more you mess with it, the greater chance you have of being named liable for it.

The Digital Millennium Copyright Act (DMCA)

• 17 USC 512
• Wikipedia on the DMCA, OCILLA

The DMCA is one of the more controversial pieces of legislation of the last 10 years, especially among internet denizens, as it has many provisions that (many people feel) erode many of the fair-use protections of copyright law and specifically criminalizes behavior that was not criminal before. However, it does include one important provision that affords an OSP some protection. As long as an OSP follows the procedures it sets forth, that OSP is immune from criminal prosecution for that instance of copyright violation.

If Person A violates the copyright of Person B on an OSP, for instance, the DMCA specifies exactly how Person B has to report that violation to the OSP (see: 17 USC 512(c)(3) for the exact format a notification has to take). The law then says that the OSP has to disable access to the allegedly-infringing material within a "reasonable" length of time, and notify Person A that such action has been taken. Person A then has the option of filing a "counter-notification", if they believe that their use of the material is not infringing, as set forth in 17 USC 512(g). This declaration is then forwarded to Person B, who may choose to begin legal proceedings for copyright infringement against Person A. If the OSP is not notified of such legal proceedings within 10 days, access to the material can be restored.

The law specifies that OSPs must deny service to "repeat offenders". It does not, however, define what "repeat offender" might be. Neither is it clear whether or not failure to follow this process in one case means that the OSP loses its safe harbor status for all cases of copyright infringement on the site, instead of just in that one case. (Opinions among the legal community on that are mixed.)

Out of all these laws, the DMCA is probably the one that an OSP will run into most often. OSPs are required to maintain record of a Designated Agent with the US Copyright Office. Dreamwidth has done so.

Children's Online Privacy Protection Act (COPPA)

• 15 USC 91
• Wikipedia, coppa.org

This is the source of much confusion; there was a similarly-named piece of legislation, COPA (the Child Online Protection Act), which was struck down as unconstitutional.

COPPA governs the collection of personal information from children under the age of 13. It states that if a child is under the age of 13, an OSP cannot collect any personal information without verified parental consent, and it sets forth restrictions on how that information can be used (and for what). It also specifies what information an OSP must disclose in its privacy policy.

To avoid tripping the requirements of COPPA, many OSPs won't allow children under the age of 13 to sign up. Dreamwidth has chosen this option.