E-Commerce Law Week, Issue 423

Court Beats CDA Shield into Sword

Section 230 of the Communications Decency Act (CDA) has heretofore been used exclusively as a defensive measure, protecting service providers from liability for "any information provided by another information content provider."  But, according to a federal court in Pennsylvania, when combined with 42 U.S.C. § 1983, the CDA also permits service providers to go on the attack. Specifically, the court held that section 230 creates a right to be free from "state action that would hold [providers] accountable for information posted by others," and that this right is enforceable under 42 U.S.C. Section 1983, which provides for a "[c]ivil action for deprivation of rights." Should the ruling stand, it could be a boon to providers (and users) of interactive computer services worried about being held liable -- civilly or criminally -- for the speech of others, allowing them to take affirmative action to protect themselves rather than waiting to sued or prosecuted.

DoJ Continues Push for Mandatory Data Retention

In testimony before the Senate Banking Committee on September 19, Attorney General Alberto Gonzales urged lawmakers to pass legislation requiring communications service providers to retain non-content records in order to help the Department of Justice investigate child pornography offenses.  The DoJ is seeking the retention of records "for a reasonable amount of time" and in a manner "consistent with the legitimate privacy rights of Americans." Gonzales' prepared testimony simply noted that he established a working group at DoJ to look into the data retention issue. But in his oral testimony, Gonzales went further, saying he agreed with 49 state attorneys general who wrote to Congress in June expressing their support for federal data retention legislation. He also stated: "This is a national problem that requires federal legislation. . . .  We need to figure out a way to have Internet service providers retain data for a sufficient period of time, that allows us to go back and retrieve it through a legal process in connection with an investigation into someone who is harming a child."

Disabilities Act Applies to Websites of Brick-and-Mortar Retailers, Court Rules

Does the Americans with Disabilities Act ("ADA") require companies' websites to be accessible to persons with disabilities? The answer may depend on which court you ask and how a company sells its good or services.  Title III of the ADA provides that "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods [or] services . . . of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation." 42 U.S.C. § 12182(a). Courts in the Ninth and Eleventh Circuits have held that "places of public accommodation" are "actual, physical places", as have courts in the Fourth Circuit in the context of discrimination under the Civil Rights Act. These rulings suggest that the ADA is inapplicable to websites.  The First and Seventh Circuits, however, have suggested a more expansive reading.  But even in the Ninth Circuit, where public accommodations have been limited to physical places, a district court has recently accepted a new theory advanced by disability advocates that could require companies to comply with the ADA when they use their websites as a "gateway" or "extension" of their brick-and-mortar stores to sell goods and services.

Questions and comments about E-Commerce Law Week are always welcome. Please send your feedback to Sally Albertazzie.