Your Kids’ Facebook Activities Can Subject You to Liability (But See 47 U.S.C. § 230?)

October 16, 2014

As a general rule, parents are not liable for their childrens’ actions simply by virtue of the fact that they are the kid’s parents. (I wish it were different, as that might put a leash on our idiocracy devolution, but sigh).

That all aside, the Georgia Court of Appeals just held that parents can be liable for their children’s activities online, most specifically on Facebook. See Boston v. Athearn (Ga. Ct. App. 2014).

The facts are pretty standard fare. Some kids decided to bully another kid. They set up a fake Facebook account dedicated to that mission. The Facebook page was apparently racist and defamatory. (Op. at 3).

During the 11 months the unauthorized profile and page could be viewed, the Athearns [the Parents] made no attempt to view the unauthorized page, and they took no action to determine the content of the false, profane, and ethnically offensive information that Dustin [their son] was charged with electronically distributing. They did not attempt to learn to whom Dustin had distributed the false and offensive information or whether the distribution was ongoing. They did not tell Dustin to delete the page. Furthermore, they made no attempt to determine whether the false and offensive information Dustin was charged with distributing could be corrected, deleted, or retracted. (Op. at 5).

Georgia follows the general rule that parents are not automatically liable for the sins of their children. But, they “may be held directly liable, however, for their own negligence in failing to supervise or control their child with regard to conduct which poses an unreasonable risk of harming others. (Op. at 6-7).

The Georgia court found that the child used a computer and access to an Internet account “improperly, in a way likely to cause harm, and with malicious intent.” (Op. at 11). The parents argued that they could not have anticipated the child’s actions until after the child’s school brought it to their attention. But, the Georgia court brushed this off, stating “The Ahearns’ argument does not take into account that, as Dustin’s parents, they continued to be responsible for supervising Dustin’s use of the computer and Internet after learning that he had created the unauthorized Facebook profile.” (Op. at 11).

Logically, this all makes sense. Parents have a duty to control their kid. They breach the duty. The breach causes harm. They pay. Classic negligence theory.

But, it seems that nobody raised the issue of 47 U.S.C. § 230, which provides immunity from such claims.(1)

The Communications Decency Act (CDA) provides, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). The CDA goes on, “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Id. § 230(e)(3).

This decision holds the parents accountable as it would a publisher or speaker of the information in question, thus the claim should be barred by 47 U.S.C. § 230.

CDA immunity requires that “(1) the defendant be a provider or user of an interactive computer service; (2) the cause of action treat the defendant as a publisher or speaker of information; and (3) the information at issue be provided by another information content provider.” Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 830 (2002)

This claim attempts to treat the parents as a liable participants in the tortious conduct. The CDA provides immunity when a plaintiff seeks to hold a defendant liable for tortious conduct based on the fact that the defendant provided the Internet instrumentalities used to commit the tort. See, e.g., Almeida v. Amazon, 456 F.3d 327 (11th Cir. 2006).

In Delfino v. Agilent Techns. Inc., 145 Cal. App. 4th 790, 806 (2006), the California court of appeals found that when an employee used the employer’s computer network to send threatening messages, the employer was not liable. In that case, the court held that although the defendant-employer merely acted as the provider of the computer system, the plaintiff’s tort claims in essence sought to hold the employer liable for the publication of the threatening messages. Id. Therefore, the employer was immune under § 230.

The Georgia Court of Appeals had its first § 230 case this summer. Internet Brands, Inc. v. Jape, 328 Ga. App. 272 (Ga. Ct. App.2014). “The CDA “precludes plaintiffs from holding interactive computer service providers liable for the publication of information created and developed by others.” Id. at 274-75. And, in that case, it recognized (like all other courts before it) that § 230 protection is broad. “[C]ourts have consistently … held that § 230 provides a ‘robust’ immunity, and that all doubts must be resolved in favor of immunity.” Id. at 276 (citations and quote marks omitted).

In this case, the plaintiff does not bring a direct claim of defamation against the parents for creating the content. But, the claims appear to have the same effect as treating them as the publisher of the information based solely upon their role as the provider of the account and hardware for the tortious communications. It is without dispute that the content was provided by another person, namely the son. The son, therefore, is the liable party – not the parents – and under the CDA, any claim to the contrary appears to be barred.

UPDATE: If CDA immunity applied, it would certainly be the first time it applied in precisely this kind of scenario. But see footnote 1, below.

________________________________
(1) I oughta know. A few years back, I raised the theory that if you provide an open wifi connection, you should be liable for torts committed over that open wifi. Since I raised it in a copyright context, the courts I raised it before dismissed it on a pre-emption claim. But, other courts have since ruled that even if that theory was not pre-empted, it would be barred by Section 230. See AF Holdings, LLC v. Doe, 104 U.S.P.Q.2D (BNA) 1182, 2012 U.S. Dist. LEXIS 125306, 2012 WL 3835102 (N.D. Cal.Sept. 4, 2012); AF Hodlings, LLC v. Doe, 2012 U.S. Dist. LEXIS 143484, 2012 WL 4747170 (N.D. Cal.Oct. 3, 2012).


Flori-duh. Thank you, again.

October 16, 2014

Governor Rick Scott refused to debate Charlie Crist (at least for a while) because Crist had a fan in the podium.

Depending on who you believe, Scott cited a rule that prohibited “electronics” in the podium, or there was a rule that was much more specific, which referred specifically to “fans.”

Just speculating here, but I would imagine that debate rules would prohibit “electronics,” as I could see a candidate getting an unfair advantage with an iPad or cell phone in front of him. To have a rule prohibiting “fans,” just doesn’t make much sense.

If anyone finds a copy of the rules, I would love to see them. In the meantime, feast your eyes on this. One of the worst political blunders I’ve ever seen.

But, this being Flori-duh, I’d imagine that Scott is the one who scored more points with it. Rational people would say that Scott looks petty and stupid. His base in Flori-duh? I’m sure that Larry the Cable Guy and his clones were hollerin’ “Yew stand yer ground, Ricky!


I am Sarkeesian

October 15, 2014

I don’t imagine that I would agree with much Anita Sarkeesian has to say.

I admit that don’t know much of what she has to say, because I don’t give a shit. The Guardian describes her as “best known for her YouTube series ‘Tropes v Women in Video Games’, assessing various anti-feminist trends in gaming.”

In other words, she’s a perfect storm of subjects that I give no fucks about. Video games and post-modern academic feminism. Both seem like a complete waste of time to me. I got bored with video games back when “Missile Command” was still a thing. And, I think that post-modern academic feminism is a bigger waste of time than playing Missile Command every day for 10 years. But, hey, if either one is your thing – enjoy it.

I watched one of Sarkeesian’s videos. As soon as she used the term “weaponized pornography,” I realized that there wasn’t much that could follow that statement, which could be of any real value to my day. Click.

Despite all that, consider me to be an Anita Skarkeesian-ista. If for no other reason than NOW I want to hear what she has to say. NOW, I want everyone to hear what she has to say.

Y’see, she was supposed to speak at Utah State University. But, someone didn’t like her perspective, so they wrote this:

“I have at my disposal a semi-automatic rifle, multiple pistols, and a collection of pipe bombs,” the letter said. “This will be the deadliest school shooting in American history and I’m giving you a chance to stop it.”

“You have 24 hours to cancel Sarkeesian’s talk … Anita Sarkeesian is everything wrong with the feminist woman, and she is going to die screaming like the craven little whore that she is if you let her come to USU. I will write my manifesto in her spilled blood, and you will all bear witness to what feminist lies and poison have done to the men of America.”

Sarkeesian initially didn’t let it bother her, but after she figured out that USU would not ban guns at the event, she cancelled her speech. (source) I don’t necessarily applaud this. She seems to be blaming the venue for its unwillingness to violate the Second Amendment. But, I’m not the one getting death threats, so I won’t pretend to be an authority on what she should do.

You know what I am an authority on? Fucking asshats.

Fucking asshats who think that silencing the other side through intimidation or interruption is how you debate.

I want to stand next to her and yell “I AM SPARTACUS!” I’m sure that she would think that is totally weird. I’m also sure that she wouldn’t really care if “the likes of me” wanted to support her. But I don’t need to agree with her to want to stand with her — because she has a RIGHT to speak. And some cowardly little nitwit made an anonymous threat, and now MY marketplace of ideas loses Sarkeesian’s wares?

Some little douchebag was so threatened by feminist theory in the context of video games that he threatened to kill people if she got to speak?

First of all, dude, if you’re gonna commit – commit over something that actually matters.

Second of all, you now turned it into something that actually matters.

Sarkeesian has a right to participate in the marketplace of ideas, and the marketplace has a right to have her.

And lest anyone start with the trope “this is what happens when women speak out,” go fuck yourself in advance. This is not a feminist issue. A men’s rights conference in Detroit suffered the same kind of threats. (source). You know how many feminists spoke up against that?

Exactly.

Why is that a problem?

Because we need to realize that no matter whose ox is being gored, all of our oxes are being ass-raped when someone gets to shut down debate.

The more you disagree with Sarkeesian, the more you should stand up to support her today. Maybe, just maybe, that will start a cycle of respect for expression, even expression that you disagree with.

And before any idiot says “well, what about the free speech of the guy who threatened her” … threats and extortion are not free speech. Look it up.

Will those who disagree with Sarkeesian see that there is something greater at stake here? Is what Sarkeesian has to say so threatening to anyone that everyone won’t stand up to support her? You can criticize her in the next breath. Call her the dumbest waste of space and breath since Jack Thompson, if you like.

But not today.

Today, I want to speak directly to her detractors. The greater principle here is that she has a right to speak, and some asshole took that away from her. Further, we have a right to hear her, and that asshole took that away from us.

I don’t care if you despise her. What happened here is wrong. Even if you disagree with her, stand up and say “I am Sarkeesian.”

And to the little shit who issued the threat: If you want to threaten her, you threaten all of us. And I guarantee you, she could probably kick your ass just fine, as the rest of us stand around and laugh. But, if she’d rather not get her hands dirty, I’ll volunteer to do it for her. (Although, I’d rather have a girl beat you up).

And if Sarkeesian wants to give her speech in Las Vegas, I will personally pay for a security detail to ensure her safety.

I am Sarkeesian.

I’ve never tried to coin a hashtag, but I’m going to today. Show Sarkeesian and those who would try to silence her that there are more of us than they could have imagined. #iamsarkeesian


Stay away from the fat kid!

October 14, 2014

Screen Shot 2014-10-14 at 10.58.57 AM

Wow…. seriously?

I only have five and a half years of experience as a parent, but I can honestly say that I’ve never considered the body mass index of another kid as a metric of, well, anything. I most certainly would not bring it up when trying to decide who my kids should play with.

On the other hand, I might avoid having my kids hang out with kids whose parents are vapid, vacuous, total fucking assholes.


The Ellora’s Cave case

October 12, 2014

I don’t want to write a blog post about this case (yet), since I’m counsel for the defendant. But, here’s a pretty good article on it that someone else wrote.

And another good one here, from Techdirt.


How to cite to Walter Sobchak

October 11, 2014

If you don’t know what the deal is with prior restraint, here, watch:

There. Simple. Right?

THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!

I wish I could just submit that clip to the next judge who even considers granting one. Just hold up a chromebook with that on it, play it, drop it on the floor, and walk out.

Dudeists have known this since 1998, and even most Dudeists were a bit late to the party.

I suppose that should not complain about misguided souls trying to get prior restraints.

If they stopped, I might actually have to find a less enjoyable way to make a living than being able to stand there with my arm around the Constitution, channelling Walter Sobchak. There is not much more career-choice-affirming than that.

Nevertheless, one after the other, they keep on coming — defamation plaintiffs who think that they’ve found the magic bullet that gets them a prior restraint. Hell, sometimes they even convince judges to grant them – which is even more awesome, because it then gets me a chance to get an appellate decision slapping it down.

In fact, I secretly hope that I will lose every prior restraint argument before the trial court. In 99% of those cases, the judge should look at the plaintiff and say “are you out of your fucking mind? Your motion is denied. THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!”

Well what fun is that? I guess it would be fun as all hell if the judge actually did that.

But, when they get slapped down for being dumb, it helps get the word around to other judges who haven’t heard about this new thing called The First Amendment. I Each time a judge gets reversed for granting a prior restraint – which is exactly every fucking time unless the speech is about secret troop movements, it could help the next dumbass who managed to get elected to the bench. It could also help lawyers with this other new thing called “client control.”

I, myself, represent an occasional defamation plaintiff or two. Plaintiff’s side cases can be fun. But, they always start with the discussion about prior restraint.

The conversation that goes sorta like this:

Client: “I want a preliminary injunction in my defamation case.”

Me: “Wrong country, dude.”

Client: “Come on, at least try

Me: “FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT! So, no. No. No. No. I’m not even gonna fucking try. You know why? Because it is stupid. Stupid. Stupid. Stupid. I may not be the smartest lawyer in the world, but I’m not stupid enough to seek a prior restraint. You want an injunction, go hire another lawyer who is willing to look like an idiot and waste your money. After he gets his ass handed to him, come back and I’ll handle your case competently, not like the fuckwit that you finally arrive at after you get to the bottom of the barrel, and then dig your way through the wood to the other fucking side of the barrel, now shut the fuck up about an injunction or get out of my fucking office and take your retainer check with you!

MARK IT ZERO!”

Client: “Ok, ok… just take it easy, man.”

Me: “I’m perfectly calm, dude.”

Client: “Just take it easy.”

Me: “Calmer than you are.”

Now on the other hand, when I get a defense case where there is a prior restraint? Then I get all happy. The first draft of my opposition inevitably has the Walter Sobchak quote in it. But, it always gets taken out. Citing to a fictional character just doesn’t seem like the right call when you’re making a serious point.

The Big Lehrmann

The Big Lehrmann

Not anymore.

Friends, Americans, Dudeists: We have arrived. Justice Debra H. Lehrmann of the Texas Supreme Court gave footnote 7 in Kinney v. Barnes, 57 Tex. Sup. J. 1428 (Tex. 2014).

The U.S. Supreme Court has long recognized that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” … This cornerstone of First Amendment protections has been reaffirmed time and again by the Supreme Court, this Court, Texas courts of appeals, legal treatises, and even popular culture(7). (citations and other footnotes omitted)

And that “7″ brings us to this… get a handkerchief, because you’re gonna weep.

The Big Lebowski (PolyGram Filmed Entertainment & Working Title Films 1998) (“For your information, the Supreme Court has roundly rejected prior restraint.”).

Now, of course, The Big Lehrmann (as she shall now be known) can get away with citing it that way. But, I can’t see a trial court in Muskegon, Des Moines, or even Los Angeleez going for that. But, The Big Lehrmann now gives us the respectability and acceptance that Constantine once gave to the early Christians.

So now, I’ll tell you how to cite this. And before you trot out the bluebook, fuck the bluebook.

The next time you are arguing against a prior restraint, this is how you cite to the wisdom of Sobchak:

Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998).

This affects all of us man.

Our basic freedoms!

—-

UPDATE: I personally use the “small caps” option when citing. But, wordpress does not seem to have that option.

Related: The post that inspired this one, How to cite to Buzz Lightyear.


Pedo Privacy is Important Too

October 9, 2014

No, no, no, you smartass... that's not it at all.  Oh, why do I bother?

No, no, no, you smartass… that’s not it at all. Oh, why do I bother?

by MJR

Stephen Collins, the actor best known for playing dad/pastor in the long-running TV series, “7th Heaven,” finds himself the latest tabloid whipping boy over allegations that he diddled underage girls. It sorta figures that he played a pastor, eh?

With all the rotten eggs being metaphorically hurled at him, it seems like nobody is at all uneasy about how the story came to light in the fist place.

Pedophiles are bad. Exposing them is good. End of story. Because fuck him, that’s why. Right?

No. Wrong.

While the tabloid-consuming dipshits are crowing about the salacious accusations, can I please get one person to put down the Brawndo® and think about the one serious issue here? What about Collins’ privacy?

The whole sordid affair came to light because someone recorded Collins during a therapy session in 2012 while he talked about screwing around with little girls. Yeah. Its pretty goddamned creepy. TMZ got ahold of the tape and published it. Let the games begin.

At this point, we don’t know for sure who made the recording. Collins’s lawyer says that his client’s estranged wife, Faye Grant, leaked it to TMZ. That’s probably what happened, but I really don’t think it matters (at least not for the purposes of this column). When we look at the legal issues, who leaked it is really secondary to who made the recording.

Given the context, the recording could have been made by Grant, the therapist, or some other person who bugged the therapist’s office. It seems pretty obvious that it was Grant, but what the hell, lets walk through the possibilities. It beats talking about dirty old men putting 10 year old girls’ hands on their dicks. I don’t like talking about that at all. Yes, dear readers, something creeps me out.

Under California Penal Code 632, it is illegal to record a conversation without the consent of all parties. So, unless Collins, the therapist, and Grant all consented, someone broke the law.

But wait, there’s more! There is an exception to §632 in California Penal Code § 633.5. Under that provision, a party to a conversation may secretly record it if the recording is made for the purpose of “obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, or any felony involving violence against the person.” “Violence against the person” can mean a lewd or lascivious act with a kid under the age of 14. See Cal Pen Code § 288; (§ 667.5, subd. (b)(6)). In fact, there is a California attorney general opinion right on point.

Not only do lewd acts on a child (§ 288) constitute a “violent felony” under section 667.5, so also do continuous sexual abuse of a child (§ 288.5) and penetration by a foreign or unknown object (§ 289) by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. (§ 667.5, subd. (c)(11), (16).) Based upon Hetherington and Stephenson, we believe that each of these forms of child molestation qualify as “any felony involving violence against the person” (§ 633.5) as defined by the Legislature. (82 Ops. Cal. Atty. Gen. 148)

So, right there, it seems like it was legally permissible to make the recording if the wife made it, and she did it to gather evidence about Collins getting a little grabby with little kids.

It doesn’t appear so, but it’s at least possible that the therapist made the recording. But then the therapist would not have had a right to disclose it unless he or she had permission or did so in order to prevent an imminent lawless act.

If a fourth party made the tape – that is, someone who was not a party to the conversation – then even the exception in Section 633.5 would not apply. The exception does not give every person in California a warrantless wiretap free pass.

So where are we legally? Maybe the therapist violated his professional responsibilities, maybe someone bugged the office. Maybe Grant made the tape to prevent a crime or solve a crime, or maybe she did so to create an advantage in her divorce proceedings. Or, maybe this was some fourth party who clearly broke the law. Most likely, this was a legal, but shitty, maneuver by the wife.

Now lets stop giving a shit if it was legal or not, and start asking some more philosophical questions. Did someone piss on Collins’ expectation of privacy? I think that the response is a resounding “hell yeah!”

Even if it were legal, there is something really twisted about all of this. Collins had an expectation of privacy in that conversation. He was in fucking therapy for chrissakes. Yeah, yeah, I’m sure that the dumpy fucking Fox-News lovers out there are screeching “so what, this is a pedophile, THIS IS ARE COUNTRY! SEPTEMBER 11, NEVAR FORGET!

And ok, even the dumbest of the dumbfucks are sort of right here, aren’t they? Does privacy matter when we are setting out the snare for child molesters?

I say it does. Before we cheer the loss of an accused pedophile’s rights, we should remember that those rights matter. They matter even for child molesters, because if they actually matter for a guy who might have been trying to get a handy from an 11 year old, then they matter for all of us. So yeah, I’m ok giving epic creepy guy some privacy – because I want it.

Now of course, we have varying expectations of privacy depending on where we are. If you’re in the middle of the street, wearing a leather codpiece and blowing a vuvuzela, you have no expectation of privacy in that act. Welcome to the front page and social media fame, weird-leather-clad-vuvuzela guy.

On the other hand, if you pose for an intimate picture for your girlfriend (with a vuvuzela), it is reasonable to expect that the photo will not turn into “revenge porn.” And when you’re at the therapist’s office, you should expect that you can speak freely and frankly without fear that your problems will be divulged to the world. Otherwise, what is the fucking point of therapy? Where else do you have an expectation of privacy than when you’re on the damned divan talking about what a fucking weirdo you are?

When someone pisses on a child molester’s rights, few want to speak up for him. And, I really don’t give two shits about Collins. But, I want to speak up for his rights, again, because I want those rights – and not for any lewd or screwy reason. I want them because I’m a goddamned human being. If that makes me an apologist for a child diddler, while someone crows “what about the children” then so be it.

I will stick up for the diddling creep — because privacy matters. And public approval of privacy violations (or just silence about it) in cases like this just normalizes privacy violations in general. That affects us all. First they come for the diddling creep’s rights, but once you break the seal, do you think that it will ever get re-sealed? No way. That’s not how the cops or google think.

But, you know what? Even if you don’t accept privacy as a fundamental good that we should protect for its own sake, then simply follow me down logic lane. Down at the end of the road, you’ll find that we still need to protect accused pedophiles’ privacy – no matter how much we may despise them.

Consider this: There is such a thing as a “non-practicing pedophile.” Some people feel sexual attraction for children, but they refuse to act upon it. (source) Many of them lack that self-control on their own, so they seek treatment so that they can avoid acting upon their unacceptable desires. (source). Don’t we want them to seek out treatment? If every therapy session is potentially bugged, how many of these creepy characters will simply forego treatment?

Do we want them to do that, or do we want them lying on the sofa, talking it out with the therapist?

Without privacy, therapy becomes something to fear. Patients clam up or avoid seeking help altogether. Where are we safe, if not when speaking to our spouses or our therapists? Is every conversation just so much data for tabloids and search engines to mill into grist for click bait? If that is the case, we’re going to have a lot of untreated pedos. We will drive them into “solitary secrecy,” where they may do the most harm. (source) If you’re a “what about the children” type, then you should realize that this privacy violation just made children less safe.

If you look at this from a simple utilitarian perspective, and not (as I do) from a fundamental belief in a right to privacy, you still should wind up on the same square — this violation of Collins’ privacy is a bad thing for us all. Don’t applaud it.


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