E-Commerce Law Week, Issue 457

Ninth Circuit Finds Chinks in Websites' CDA Armor.  Will They Become Gaping Holes?

Section 230(c)(1) of  the Communications Decency Act (CDA) has long been one of websites' most reliable legal defenses.  This provision has been interpreted as giving a "provider" (or "user") of an "interactive computer service" broad immunity from suits based on content provided by a third party.  But the Ninth Circuit recently decided that websites' CDA protection has real limits.  In Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, the court ruled that a website that "categoriz[es], channel[s] and limit[s] the distribution" of user-supplied data thereby "provides an additional layer of information," for which it cannot claim CDA immunity.  Though seemingly narrow, this ruling could become a significant problem for search engines and web portals; after all, the booming businesses of web search and online advertising are based on developing better ways of categorizing and channeling information supplied by others.  This decision thus could become the exception that swallows the rule of CDA immunity for third-party content.  The Ninth Circuit also suggested that CDA immunity might not be available for websites that "actively encourage, solicit, and profit from the tortious and unlawful communications of others."  Again, in an era where "user-generated" content is all the rage, this rationale -- if applied broadly -- could eviscerate the CDA's protection.  Search engines, web-advertising companies, portals, and other websites that publish user-generated content will want to consider how best to reverse -- or contain the damage from -- this decision.

Another Court Pours Salt in Websites' Wounds

As if the Ninth Circuit's decision in the Roommate.com case, wasn't bad enough, on April 19, a federal court in Connecticut further limited the protection afforded to websites by Section 230 of the Communications Decency Act.  In Doctor's Associates, Inc. v. QIP Holders, LLC, the court held that Section 230 creates an affirmative defense which cannot be decided on a motion to dismiss.  Instead, it must be addressed in a motion for summary judgment, and normally after discovery.  Though not as big a blow to websites as the Roommate.com decision, this ruling could mean that websites will need to spend more time (and money) making out a CDA defense, and may have to endure at least some discovery by plaintiffs.  And if the Roommate.com decision is upheld, plaintiffs will undoubtedly use such discovery to look for evidence that website defendants encouraged, solicited, and profited from third-party content.

FBI:  Now that CALEA is free, what else shall we include in it?

On May 15, 2007 -- just one day after the deadline for broadband Internet access and interconnected VoIP providers to comply with the Communications Assistance for Law Enforcement Act ("CALEA") -- the Department of Justice filed a petition with the Federal Communications Commission alleging that the recently published CALEA standard J-STD-025-B is deficient by failing to include (1) packet activity reporting; (2) time stamps for call-identifying information messages for the packet mode services covered by the standard; (3) all reasonably available location information for mobile handsets at the beginning and end of mobile calls; and (4) security, performance and reliability standards for carriers' CALEA solutions (including secure delivery and packet-loss and bit-error performance standards).  The petition also requests a 12-month implementation period.  Comments on the petition are due by June 22, 2007.

Steptoe & Johnson LLP Teleconference:  The Implications of KSR v. Teleflex

Eleven months ago, the Supreme Court of the United States agreed to consider what circumstances make the disclosures of two or more prior art references combinable, to support a judgment of patent invalidity for obviousness.  On April 30, the Court delivered its much anticipated ruling.  Please join Steptoe partner Roger W. Parkhurst and a distinguished panel on June 5 at 2:00 p.m. EDT for a discussion of the implications of this important decision for U.S. patents and their owners.  The teleconference is toll-free, and there is no charge to participate.

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