One common criticism lodged by constructionist judges against some of their judicial brethren is that, in their quest for “fair” results, they often misinterpret or outright ignore the plain text of a statute. The majority of a Tenth Circuit panel seems to have fallen into this trap in a recent case involving section 230 of the Communications Decency Act (“Section 230”), despite the admonitions of a fellow panel member in a carefully constructed concurrence.
Section 230 immunizes an interactive computer service (ICS) from liability as "the publisher or speaker" of any information provided by another information content provider (ICP). 47 U.S.C. § 230(c)(1). Section 230 defines an ICP as one who "is responsible, in whole or in part, for the creation or development of information provided." 47 U.S.C. § 230(f)(3).
The case at issue is FTC v. Accusearch Inc., No. 08-8003, 2009 U.S. App. LEXIS 14480 (10th Cir. June 29, 2009), in which the FTC brought claims for unfair business practices under the Federal Trade Communications Act against Accusearch for soliciting third-party “researchers” to obtain confidential phone records and then selling those records through its website, Abika.com. On cross-motions for summary judgement, Accusearch asserted Section 230 as a defense to the FTC's claims, styling itself as “an interactive person-to-person search engine” that should not be responsible for publishing phone records provided by third parties, but the Wyoming District Court would have none of that.
Although the district court determined that Accusearch was an ICS under Section 230, it decided that the FTC’s claim did not rest upon treating Accusearch as a "publisher or speaker," making Section 230 inapplicable. Although this finding was sufficient to end the Section 230 analysis, District Court Judge William F. Downes went on to state that “by soliciting requests for such phone records and purchasing them for resale, Defendants ‘participat[ed] in the creation or development of [the] information, and thus [do] not qualify for § 230 Immunity,’” despite the fact that they neither created nor in any way modified the phone records at issue. FTC v. Accusearch, Inc., No. 06-CV-105, 2007 U.S. Dist. LEXIS 74905, at *16 (D. Wyo. Sept. 28, 2007) (quoting Ben Ezra, Weinstein, & Co. v. Am. Online, Inc., 206 F.3d 980, 985, n. 4 (10th Cir. 2000)).
On appeal, the Tenth Circuit had the option of disposing of Accusearch's Section 230 defense on the first grounds reached by the district court, namely the question of whether Accusearch was being treated as a "publisher or speaker." The panel declined to base its rejection of Accusearch's Section 230 defense on these grounds, asserting instead that “Accusearch would not have violated the [Federal Trade Commission Act] had it not ‘published’ the confidential telephone information that it had improperly acquired.” 2009 U.S. App. LEXIS 14480 at *21. Yet, as the concurrence rightly points out, the FTC sought to hold Accusearch liable for its conduct in acquiring the phone records, not the supposed “publication” of those records, accusing Accusearch of “surreptitiously obtain[ing] and s[elling] confidential customer phone records without the customer’s knowledge or authorization.” Id. at *44–47. In case further clarification of the point was necessary, Judge Tymkovich notes that “[w]hile Internet publication of the confidential phone data, by itself, may very well be protected by the CDA, the CDA does not immunize, expressly or implicitly, the manner in which Accusearch conducted its business.” Id. at *49.
By refusing to dispose of Accusearch's Section 230 defense on the issue of publisher liability, the majority had no choice but to resolve the matter by adopting the District Court’s tortured logic that Accusearch was an ICP because it “participat[ed] in the creation or development” of the phone records, and thus was not entitled to immunity. Since the plain meaning of those words precludes such a bizarre interpretation, the court was forced to engage in lexicographic jujutsu, writing a brief thesis on the definition of “development” that harkens back to its etymological origins in the Old French word desveloper (which apparently means “to unwrap”). Based upon the majority’s observation that “dictionary definitions for develop . . . revolve around the act of drawing something out, making it ‘visible,’ ‘active,’ or ‘usable,’” it concluded that “when confidential telephone information was exposed to public view through Abika.com, that information was ‘developed.’” 2009 U.S. App. LEXIS 14480 at *24–25. Presumably, it would thus be equally correct to state that a flasher is “developing” his naked body when he “expose[s] [it] to public view.”
The court then addresses the word “responsible” from the definition of ICP, explicitly adding a normative component to Section 230’s neutral definition by concluding that an ICP is “responsible” for developing offensive content “only if it in some way specifically encourages development of what is offensive about the content.” 2009 U.S. App. LEXIS 14480 at *27. This “clarification,” however, is unnecessary, as the plain language of 47 U.S.C. § 230(c)(1) already provides for it – should a third-party ICP post offensive information, the ICS is immune from publisher liability; and if the ICS itself posts non-offensive material, there are no grounds for a suit in the first place. Courts have understood this, denying Section 230 immunity for ICS providers only when they have been integral in co-creating the offensive content. While it may seem innocuous to merely clarify an existing standard by explicitly defining an arguably ambiguous term, the law of unintended consequences suggests that the Tenth Circuit’s “clarification” may cause real problems down the road.
While statutory interpretation may be required in situations of actual ambiguity, it should not be a court’s first response. Although the Tenth Circuit reached the correct result in this case, it did so through pernicious means. By eschewing the principle of parsimony, the court has needlessly added more fuel to the constructionists’ fire.
(Lee Baker is a rising second-year law student at Harvard Law School and a CMLP legal intern.)
