Some Thoughts on Section 230 and Recent Criminal Arrests

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3 Responses

  1. “unless they co-developed or co-created the allegedly criminal/tortious content, such as by paying for the illegal content and reselling it…”

    Is there a consensus that paying for content is codeveloping it? I thought that ship sailed with Blumenthal v. Drudge. I know there are a couple of cases that intimate otherwise, but I see this as a very open (and mostly settled in the other direction) question. Not asking from a normative point of view – just wondering if I’m missing something in the case law.

  2. Danielle Citron says:

    Yes, check out FTC v. Accusearch–there, the site operator paid for third parties to illegally obtain phone records and then sold those records. The court found that the site operator did not enjoy immunity because it materially contributed to the illegal content by soliciting third parties to get it and paying for the illegal records. I take your point in Drudge, as Blumenthal similarly argued that AOL was an information content provider by paying Drudge to write for him. But the payment was like any publisher and writer. In Accusearch, the payment was for illegal content. The line is not clear, but that is the recent case.

  3. Thanks – I knew about Accusearch. I just wonder whether it is an outlier. I’m hoping not, but I also wonder where you draw the line. If, for example, the solicitation was more general rather than for something illegal, or even if it was a solicitation for something defamatory, but not illegal, I’m not convinced a court would follow Accusearch.