Just over a year ago, the rumormonger—and some would say defamatory—website JuicyCampus.com shut down. At the time, I wrote "there's one (and only one) downer to Juicy Campus' shutdown . . . a lawsuit against Juicy Campus could have served as a very interesting test case for the limits of Section 230 immunity."
Ladies and gentlemen, a new contender has stepped into the ring! Say hello to PleaseRobMe.com!
The premise for this website is brilliant, even if potentially a litigation risk. PleaseRobMe.com ("PRM") aggregates Twitter posts indicating that the Tweeter in question is not at home. The folks at PRM aren't doing anything sneaky or hacker-like—they're just doing a simple Twitter search of anyone using foursquare.com—a site that lets Tweeters post their locations on a street map. The only thing that PRM is adding to the mix is framing content that snarkily suggests that these Tweeters aren't home, and thus, perhaps, would be good targets for robbery.
Lest you get the wrong idea, PRM isn't trying to encourage robbery (technically, we're probably talking burglary). They claim that they're underscoring the danger of blithely putting location information online for all the world to see:
The danger is publicly telling people where you are. This is because it leaves one place you're definitely not... home. So here we are; on one end we're leaving lights on when we're going on a holiday, and on the other we're telling everybody on the internet we're not home. It gets even worse if you have "friends" who want to colonize your house. That means they have to enter your address, to tell everyone where they are. Your address.. on the internet.. Now you know what to do when people reach for their phone as soon as they enter your home. That's right, slap them across the face.
The goal of this website is to raise some awareness on this issue and have people think about how they use services like Foursquare, Brightkite, Google Buzz etc. Because all this site is, is a dressed up Twitter search page. Everybody can get this information.
The fascinating thing for an Internet lawyer, though, is this: what if someone takes PRM up on their "offer" and robs one of these people's houses? Of course, anyone trying to sue PRM would naturally face a big obstacle on any claim—the fact that they voluntarily posted their location, and thus their away-from-home status, where anyone could read it. But suppose some robber admits that he used PRM to hit vacant homes. Could PRM ever be liable, or would it be protected by Section 230 of the Communications Decency Act (“Section 230”)? (Hat tip to Rebecca Tushnet for the question and Mashable for the article on PRM.)
It's a great question. Under the usual reading of Section 230, which protects websites from liability for defamatory and other tortious content created by their users, PRM ought to be safe. The website plays no role in authoring the content. Heck, it doesn't even prompt others to post this information—the oblivious Tweeters do that themselves!
The fact that PRM plays no role in urging creation of its content probably insulates it from one of the tantalizing Section 230 questions that surrounded Juicy Campus. In Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc), the Ninth Circuit made the typical Section 230 analysis somewhat fuzzier by suggesting that websites might—under undefined circumstances—lose Section 230 immunity by "encouraging," "soliciting," or "inducing" users to post illegal content. PRM looks good on this issue because, as noted, it isn't encouraging anyone to produce the potentially damaging information. Quite the opposite, the website is trying to discourage it.
But recall that Roommates also laid out a new definition for when a website can be said to "develop" user content. The court said that "development" refers "not merely to augmenting the content generally, but materially contributing to its alleged unlawfulness." Roommates.com, slip op. at 3462 (emphasis added). Here, there's an argument that PRM's aggregation and framing of otherwise innocent content creates a foreseeable risk of unlawful third-party conduct that didn't previously exist—that is, it materially contributes to that unlawful conduct.
I don't pretend to know how such a case would come out. It would seem very difficult for a plaintiff to causally link PRM to any particular robbery. Heck, I'm not even sure what the underlying legal claim would be, though I suppose negligence comes to mind. (There might, however, be First Amendment issues with imposing liability under these circumstances.) Nevertheless, the potential for a great Section 230 case is back on the board. Hooray!
(Arthur Bright is a third-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at The Christian Science Monitor.)
