Discussion(CL)

I. What is the Internet? Who Regulates It? This book is about Internet Law. But is it possible to distinguish between “the Internet” and “not the Internet”? What defines this boundary? From a policy and regulatory standpoint, why does this boundary matter? Defining the Internet The Internet is an electronic communication network. There are many other electronic networks, including wired and wireless telephony and radio and television broadcast, all of which have historical roots that differ greatly from the Internet. We generally consider those networks as distinct from the Internet, even though those networks can carry Internet traffic, and even though the Internet makes it possible to replicate telephony, radio, and television functions. So what distinguishes the Internet from other electronic communications networks? There is no single well-accepted answer to this question. Perhaps most distinctively, the Internet uses “packet switching.” To understand packet switching, it helps to understand a bit about Internet history. The following explanation comes from American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996): 5. The Internet had its origins in 1969 as an experimental project of the Advanced Research Project Agency (“ARPA”), and was called ARPANET. This network linked computers and computer networks owned by the military, defense contractors, and university laboratories conducting defenserelated research. The network later allowed researchers across the country to access directly and to use extremely powerful supercomputers located at a few key universities and laboratories. As it evolved far beyond its research origins in the United States to encompass universities, corporations, and people around the world, the ARPANET came to be called the “DARPA Internet,” and finally just the “Internet.” 6. From its inception, the network was designed to be a decentralized, selfmaintaining series of redundant links between computers and computer networks, capable of rapidly transmitting communications without direct human involvement or control, and with the automatic ability to re-route communications if one or more individual links were damaged or otherwise unavailable. Among other goals, this redundant system of linked computers was designed to allow vital research and communications to continue even if portions of the network were damaged, say, in a war. 7. To achieve this resilient nationwide (and ultimately global) communications medium, the ARPANET encouraged the creation of multiple links to and from each computer (or computer network) on the network. Thus, a computer located in Washington, D.C., might be linked (usually using dedicated telephone lines) to other computers in neighboring states or on the Eastern seaboard. Each of those computers could in turn be linked to other computers, which themselves would be linked to other computers. 2. 8. A communication sent over this redundant series of linked computers could travel any of a number of routes to its destination. Thus, a message sent from a computer in Washington, D.C., to a computer in Palo Alto, California, might first be sent to a computer in Philadelphia, and then be forwarded to a computer in Pittsburgh, and then to Chicago, Denver, and Salt Lake City, before finally reaching Palo Alto. If the message could not travel along that path (because of military attack, simple technical malfunction, or other reason), the message would automatically (without human intervention or even knowledge) be re-routed, perhaps, from Washington, D.C. to Richmond, and then to Atlanta, New Orleans, Dallas, Albuquerque, Los Angeles, and finally to Palo Alto. This type of transmission, and re-routing, would likely occur in a matter of seconds. 9. Messages between computers on the Internet do not necessarily travel entirely along the same path. The Internet uses “packet switching” communication protocols that allow individual messages to be subdivided into smaller “packets” that are then sent independently to the destination, and are then automatically reassembled by the receiving computer. While all packets of a given message often travel along the same path to the destination, if computers along the route become overloaded, then packets can be re-routed to less loaded computers. Statutory definitions of the “Internet” often reference packet switching or its enabling protocol called Transmission Control Protocol/Internet Protocol (TCP/IP). For example, in the United States Code, you’ll find two alternative definitions of “Internet”: “the international computer network of interoperable packet switched data networks” (e.g., 31 U.SC. § 5362; 47 U.S.C. § 230). “collectively the myriad of computer and telecommunications facilities, including equipment and operating software, which comprise the interconnected world-wide network of networks that employ the Transmission Control Protocol/Internet Protocol, or any predecessor [or] successor protocols to such protocol, to communicate information of all kinds by wire or radio” (e.g., the Children’s Online Privacy Protection Act, 15 U.S.C. § 6555; the now-defunct Internet Tax Freedom Act, 47 U.S.C. § 151 note). Historically, the Internet has been perceived as a virtual space. However, the emergence of the “Internet-of-Things” has further blurred the boundaries between “the Internet” and “not the Internet.” Physical items are now routinely Internet-enabled, including cars, thermostats, juicers (the Juicero), and adult toys (the “We-Vibe”). As the Internet pervades physical items in the “offline” world, is there a coherent border between “the Internet” and “not the Internet”? Accessing the Internet Internet access providers (IAP) are the service providers that get users and services online. IAPs are sometimes called “Internet Service Providers” or “ISPs,” but that term is also 3. sometimes confusingly used to describe websites as well. To reduce semantic ambiguity, never use the term “ISP;” use the term “IAP” when referring to Internet access. Some of the primary ways that we access the Internet: At home, most people obtain Internet access from their telephony or cable provider, such as AT&T or Comcast. Most people also access the Internet on their smartphones through their cellular service provider or third-party wi-fi services. Employers and schools routinely provide Internet access to their employees/students. Businesses routinely provide wi-fi Internet access to their customers. What Can We Do on the Internet? There are many communication modalities on the Internet, including email, chat, message boards, social media, web publishing and more. The Internet enables individuals to create their own personal website or blog. More typically, people use third-party publishing tools, such as social media, which expedite the content distribution process and provide exposure to an existing audience. Many of these content publication options are free; others are relatively low cost. The ACLU v. Reno court said in 1996, “the Internet provides an easy and inexpensive way for a speaker to reach a large audience, potentially of millions. The start-up and operating costs entailed by communication on the Internet are significantly lower than those associated with use of other forms of mass communication, such as television, radio, newspapers, and magazines.” This low cost has led to an explosion of content unprecedented in human history, with a virtually infinite diversity of content (for better and for worse). As the ACLU v. Reno court wrote in 1996, “It is no exaggeration to conclude that the content on the Internet is as diverse as human thought.” There are two other distinctive aspects of the Internet as a content publication platform. First, the Internet makes it seamless to browse content from diverse sources due to abundant and easy-to-use links. As the ACLU v. Reno court wrote in 1996, “[Hyper]links from one computer to another, from one document to another across the Internet, are what unify the Web into a single body of knowledge, and what makes the Web unique…The power of the Web stems from the ability of a link to point to any document, regardless of its status or physical location.” Second, we routinely flip between being consumers and producers of online content, often without thinking about that transition. As the ACLU v. Reno court wrote in 1996: 79. Because of the different forms of Internet communication, a user of the Internet may speak or listen interchangeably, blurring the distinction between “speakers” and “listeners” on the Internet. Chat rooms, e-mail, and newsgroups are interactive forms of communication, providing the user with the opportunity both to speak and to listen. 4. 80. It follows that unlike traditional media, the barriers to entry as a speaker on the Internet do not differ significantly from the barriers to entry as a listener. Once one has entered cyberspace, one may engage in the dialogue that occurs there. In the argot of the medium, the receiver can and does become the content provider, and vice-versa. 81. The Internet is therefore a unique and wholly new medium of worldwide human communication. Mobile Devices as Computers. As further evidence of the degradation of the boundaries between the Internet and not-the-Internet, most people carry a mobile computer—with Internet access—around with them at virtually all times. From Riley v. California, 573 U.S. 373 (2014): The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick rather than a container the size of the cigarette package in Robinson. But the possible intrusion on privacy is not physically limited in the same way when it comes to cell phones. The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos. Cell phones couple that capacity with the ability to store many different types of information: Even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand-entry phone book, and so on. We expect that the gulf between physical practicability and digital capacity will only continue to widen in the future. The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video— that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved 5. ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone. Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower. A decade ago police officers searching an arrestee might have occasionally stumbled across a highly personal item such as a diary. But those discoveries were likely to be few and far between. Today, by contrast, it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate. Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case. Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building. Mobile application software on a cell phone, or “apps,” offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase “there’s an app for that” is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life. In 1926, Learned Hand observed that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” If his pockets contain a 6. cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is. Who Controls the Internet? In the 1990s, many people referred to the Internet as the ultimate disintermediator; some technologists even thought it would make centralized control of the communication network impossible. From the 1996 ACLU v. Reno opinion: 11. No single entity—academic, corporate, governmental, or non-profit— administers the Internet. It exists and functions as a result of the fact that hundreds of thousands of separate operators of computers and computer networks independently decided to use common data transfer protocols to exchange communications and information with other computers (which in turn exchange communications and information with still other computers). There is no centralized storage location, control point, or communications channel for the Internet, and it would not be technically feasible for a single entity to control all of the information conveyed on the Internet…. 46. A distributed system with no centralized control. Running on tens of thousands of individual computers on the Internet, the Web is what is known as a distributed system. The Web was designed so that organizations with computers containing information can become part of the Web simply by attaching their computers to the Internet and running appropriate World Wide Web software. No single organization controls any membership in the Web, nor is there any single centralized point from which individual Web sites or services can be blocked from the Web. From a user’s perspective, it may appear to be a single, integrated system, but in reality it has no centralized control point. This might still be true in a literal sense. However, as technology has developed new communication innovations, governments have counter-innovated ways of controlling those communications. Some “chokepoints” that governments have targeted: Internet access providers determine what their users can do on the Internet. In many countries, there are a small number of IAPs; and the government licenses IAPs or otherwise exercises substantial control over their businesses. In extreme cases, a government can require all of a country’s IAPs to shut down and take the country off the Internet entirely. The domain name system and IP address systems are targetable chokepoints. For example, turning off a domain name makes the associated service functionally invisible. Website blocking orders, which block domain names of illegal activity, have become increasingly routine in Europe. Alternatively, blocking an IP address makes the associated computer(s) invisible to other parts of the Internet. In extreme cases, a government can force all of the country’s IAPs to block a domain name or IP address. For example, Turkey regularly blocks YouTube. To get around these blocks, people in the country might use “VPNs.” VPN services allow users to “rent” an IP 7. address from them. Using such services can allow a user to appear to third party websites as if they are coming from a different country than the user’s actual country. For example, if the BBC tries to restrict its online content only to viewers in the United Kingdom, people in other countries can rent an IP address from a UKbased VPN service and gain access BBC’s content by appearing to be located in the UK. This creates a cat-and-mouse game, as governments then seek to block or restrict access to VPNs. Search engines are often a key chokepoint because they affect what people see. For example, governments can mandate that search engines do not “auto-complete” certain queries, implicitly obscuring the search results associated with those queries. Browser software manufacturers are a chokepoint because their settings and functionality often dictate what users can do online. The major social media services can become a chokepoint when they control a large portion of the desired audience. Governments have other techniques to assert control over Internet actors. First, they can require that any service available in their country have a physical presence there. Some geographic-specific domain names, such as “.eu,” require a local physical presence. That physical presence makes it easier for governments to target any associated physical assets or employees, including the threat of jailing the personnel. Second, many countries have gone further and required that Internet services must store all personal information from the country’s residents in the country (called “data localization” requirements). In addition to giving the government more assets to target, the requirement facilitates the government’s censorship of that data because it can forcibly suppress the data stored in its territory. At its most extreme, Russia has developed its own country-specific Internet (the “Runet”) that can be disconnected from the rest of the Internet for purposes of “Internet sovereignty” or “national security.” Jane Wakefield, Russia 'Successfully Tests' Its Unplugged Internet, BBC, Dec. 24, 2019, https://www.bbc.com/news/technology-50902496. Such a system has unlimited potential for censorship by ensuring that the only content available to Russian citizens on the “Internet” comes from publishers and services that the Russian government can control. We will revisit ways that governments can subject Internet actors to legal consequences in the jurisdiction module. Authenticating User Attributes on the Internet You may be familiar with this iconic 1993 New Yorker cartoon: 8. In the optimistic period of the 1990s, this cartoon stood for the proposition that people could be someone different on the Internet. In particular, on the Internet, people could interact with other people without displaying—and, in theory, without being judged based on—their visible physical characteristics such as age, gender, or race. It also meant people could engage in role-playing and experience what life is like for people with different attributes. Later, the New Yorker cartoon took on an unexpectedly ironic meaning. Extensive data gathering by Internet companies that they knew virtually everything about Internet users—perhaps more than the users know about themselves. Some folks on the Internet may not know you’re a dog, but Google and Facebook do. Authenticating users’ ages has been a perennial authentication challenge. In 1995, a cyberpanic swept through Congress because minors could find pornography online. However, the First Amendment protects the availability of pornography to adults, so Congress could not categorically ban pornography online. Nevertheless, Congress passed the Communications Decency Act, which led to a legal battle covered in the Reno v. ACLU opinion later in this book. In the mid-1990s, it was not feasible to distinguish minors from adults online. To work around that technological limitation, the Communications Decency Act created a safe harbor for treating users as adults if they presented a valid credit card number. There are a number of problems with this approach, including the now-dubious assumption that minors don’t have access to a valid credit card number. Remarkably, age authentication technologies have not materially improved in the past quarter-century. Some social media services “age-gate” by blocking minors’ access to some material on their services, but the efficacy of such age-gating depends on whether the user self-reported his/her age accurately in the first place. Otherwise, most forms of online communication—ranging from web publishers to email correspondents—still lack an effective way of reliably and accurately distinguishing minors from adults. Nowadays, the privacy-invasive implications of age authentication seemingly conflict with consumers’ increasing desire for privacy online. Have We Fallen Out of Love With the Internet? The Internet is a major advance in human technology, and it enables functionality that truly would have seemed like science fiction to people before the Internet. That’s why most people still love the Internet. Yet, over time, the Internet’s brand has been degrading: 9. Americans have grown somewhat more ambivalent about the impact of digital connectivity on society as a whole. A sizable majority of online adults (70%) continue to believe the internet has been a good thing for society. Yet the share of online adults saying this has declined by a modest but still significant 6 percentage points since early 2014, when the Center first asked the question…. Those who think the internet has had a good impact on society tended to focus on two key issues, according to follow-up items which allowed respondents to explain their views in their own words. Most (62% of those with a positive view) mentioned how the internet makes information much easier and faster to access. Meanwhile, 23% of this group mentioned the ability to connect with other people, or the ways in which the internet helps them keep more closely in touch with friends and family. By contrast, those who think the internet is a bad thing for society gave a wider range of reasons for their opinions, with no single issue standing out. The most common theme (mentioned by 25% of these respondents) was that the internet isolates people from each other or encourages them to spend too much time with their devices. These responses also included references to the spread and prevalence of fake news or other types of false information: 16% mentioned this issue. Some 14% of those who think the internet’s impact is negative cited specific concerns about its effect on children, while 13% argued that it encourages illegal activity. A small share (5%) expressed privacy concerns or worries about sensitive personal information being available online. Declining Majority of Online Adults Say the Internet Has Been Good for Society, Pew Research Center, Apr. 30, 2018, http://www.pewinternet.org/2018/04/30/decliningmajority-of-online-adults-say-the-internet-has-been-good-for-society/. Government regulators routinely take a much dimmer view of the Internet than the average consumer. 10. In the next case, the court legally distinguishes an online chatroom from an offline restaurant. Do you agree? Noah v. AOL Time Warner Inc., 261 F. Supp. 2d 532 (E.D. Va. 2003) Plaintiff, on behalf of himself and a class of those similarly situated, sues his Internet service provider (ISP)* for damages and injunctive relief, claiming that the ISP wrongfully refused to prevent participants in an online chat room from posting or submitting harassing comments that blasphemed and defamed plaintiff’s Islamic religion and his co-religionists. Specifically, plaintiff claims his ISP’s failure to prevent chat room participants from using the ISP’s chat room to publish the harassing and defamatory comments constitutes a breach of the ISP’s customer agreement with plaintiff and a violation of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq. At issue on a threshold dismissal motion are (i) the now familiar and well-litigated question whether a claim, like plaintiff’s, which seeks to hold an ISP civilly liable as a publisher of third party statements is barred by the immunity granted ISP’s by the Communications Decency Act of 1996, 47 U.S.C. § 230, (ii) the less familiar, indeed novel question whether an online chat room is a “place of public accommodation” under Title II, and (iii) the rather prosaic question whether plaintiff’s breach of contract claim is barred by the very contract on which he relies, namely the Member Agreement contract. For the reasons that follow, plaintiff’s claims do not survive threshold inspection and must therefore be dismissed. I. Plaintiff Saad Noah, a Muslim, is a resident of Illinois and was a subscriber of defendant America Online, Inc. (“AOL”)’s Internet service until he cancelled the service in July of 2000. AOL, which is located in the Eastern District of Virginia, is, according to the complaint, the world’s largest Internet service provider, with more than 30 million subscribers, or “members,” worldwide. Defendant AOL Time Warner Inc. is the parent company of AOL. Among the many services AOL provides its members are what are popularly known as “chat rooms.” These occur where, as AOL does here, an ISP allows its participants to use its facilities to engage in real-time electronic conversations. Chat room participants type in their comments or observations, which are then read by other chat room participants, who may then type in their responses. Conversations in a chat room unfold in real time; the submitted comments appear transiently on participants’ screens and then scroll off the screen as the conversation progresses. AOL chat rooms are typically set up for the * [Editor’s note: even though this court did, please don’t use the term ISP.] 11. discussion of a particular topic or area of interest, and any AOL member who wishes to join a conversation in a public chat room may do so. Two AOL chat rooms are the focus of plaintiff’s claims: the “Beliefs Islam” chat room and the “Koran” chat room. It is in these chat rooms that plaintiff alleges that he and other Muslims have been harassed, insulted, threatened, ridiculed and slandered by other AOL members due to their religious beliefs. The complaint lists dozens of harassing statements made by other AOL members in these chat rooms on specified dates, all of which plaintiff alleges he brought to AOL’s attention together with requests that AOL take action to enforce its member guidelines and halt promulgation of the harassing statements. The statements span a period of two and one-half years, from January 10, 1998 to July 1, 2000, and are attributable to various AOL chat room participants only by virtue of a screen name. A representative sample of the reported offensive comments follows: (i) On January 10, 1998 the AOL Member with the screen name “Aristotlee” wrote “islam is meaniglessssss thought,” “allahsdick cut offfffffff,” “dumballah bastard,” “allah assssshole,” “allajs dick is in holy dick place hey.” “FUCK ALLAH,” etc. (ii) On April 26, 1998, “Twotoneleg” wrote “I HATE MUSLIMS,” “THE KORAN SUCKS,” etc., and “BOSS30269” wrote “I LIKE SHOOTING MUSLIMS,” “I WILL BOMB THE MIDDLE EAST,” and “FUCK ISLAM.” (iii) On November 4, 1998, “Hefedehefe” wrote “SMELLY TOWEL HEADS” and “MUSLIM TOWEL HEADS.” (iv) On July 11, 1999, “Jzingher” wrote “The Koran and Islam are creations of Satan to distract people from the true faith which is Judaism. Mohammed was merely a huckster who found a simple people he could manipulate.” (v) On July 18, 1999 “SARGON I” wrote “Qura’n lies about everything—a Satan made verses of darkness and destruction!”, “Mohammed was no shit, only a killer, thief, a liar and a adulterer!”, and “BYE STUPID MUSLIMS....ALL GO TO HELL.” (vi) On July 1, 2000, “DXfina3000 wrote “muslims suck,” “they suck ass,” “korans is use to wipe ass,” “fuckin muslins,” and “well allah can suck my dick you peice of ass.” Plaintiff understandably complained about these offensive, obnoxious, and indecent statements, initially through the channels provided by AOL for such complaints and eventually through emails sent directly to AOL’s CEO Steve Case. Plaintiff alleges that although he reported every one of the alleged violations to AOL, AOL refused to exercise its power to eliminate the harassment in the “Beliefs Islam” and “Koran” chat rooms. Moreover, plaintiff contends that AOL gave a “green light” to the harassment of Muslims in these forums, claiming that such harassment was not tolerated in chat rooms dealing with other subjects and faiths. In protest, plaintiff cancelled his AOL account in July 2000. Plaintiff further alleges that other Muslim members of AOL have also complained to AOL about similar harassing statements. 12. The relationship between AOL and each of its subscribing members is governed by the Terms of Service (“TOS”), which include a Member Agreement and the Community Guidelines. The Member Agreement is a “legal document that details [a member’s] rights and obligations as an AOL member,” and it requires, inter alia, that AOL members adhere to AOL’s standards for online speech, as set forth in the Community Guidelines. These Guidelines state, in pertinent part, that ... You will be considered in violation of the Terms of Service if you (or others using your account) do any of the following: .... * Harass, threaten, embarrass, or do anything else to another member that is unwanted. This means: ... don’t attack their race, heritage, etc.... * Transmit or facilitate distribution of content that is harmful, abusive, racially or ethnically offensive, vulgar, sexually explicit, or in a reasonable person’s view, objectionable. Community standards may vary, but there is no place on the service where hate speech is tolerated. * Disrupt the flow of chat in chat rooms with vulgar language, abusiveness, ... The Member Agreement states that AOL has the right to enforce these Community Guidelines “in its sole discretion.” In response to a violation, “AOL may take action against your account,” ranging from “issuance of a warning about a violation to termination of your account.” AOL’s Community Action Team is responsible for enforcing the content and conduct standards and members are encouraged to notify AOL of violations they observe online. Importantly, however, the Member Agreement states that AOL members “... also understand and agree that the AOL Community Guidelines and the AOL Privacy Policy, including AOL’s enforcement of those policies, are not intended to confer, and do not confer, any rights or remedies upon any person.”… IV. Plaintiff’s Title II claim fails for two alternate and independent reasons. First, plaintiff’s claim against AOL is barred because of the immunity granted AOL, as an interactive computer service provider, by the Communications Decency Act of 1996, 47 U.S.C. § 230. Second, plaintiff’s claim fails because a chat room is not a “place of public accommodation” as defined by Title II, 42 U.S.C. § 2000a(b). Each dismissal ground is separately addressed…. [Editor’s note: after studying Section 230, you might revisit this case to think about why Section 230 applied to Noah’s claims.] B. Even assuming, arguendo, that plaintiff’s Title II claim is not barred by § 230, it must nonetheless be dismissed for failure to state a claim because AOL’s chat rooms and other online services do not constitute a “place of public accommodation” under Title II. 13. Title II provides that “[a]ll persons shall be entitled to full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.” 42 U.S.C. § 2000a(a). Title II defines a “place of public accommodation” as follows: Each of the following establishments which serves the public is a place of public accommodation within the meaning of this subchapter ... (1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence; (2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gas station; (3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and (4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment. 42 U.S.C. § 2000a(b). The theory of plaintiff’s Title II claim is that he was denied the right of equal enjoyment of AOL’s chat rooms because of AOL’s alleged failure to take steps to stop the harassing comments and because of AOL’s warnings to plaintiff and brief termination of plaintiff’s service. In this regard, plaintiff contends that the chat rooms are “place[s] of ... entertainment” and thus within the public accommodation definition. Yet, as the relevant case law and an examination the statute’s exhaustive definition make clear, “places of public accommodation” are limited to actual, physical places and structures, and thus cannot include chat rooms, which are not actual physical facilities but instead are virtual forums for communication provided by AOL to its members. Title II’s definition of “places of public accommodation” provides a list of “establishments” that qualify as such places. This list, without exception, consists of actual physical structures; namely any “inn, hotel, motel, ... restaurant, cafeteria, lunchroom, lunch counter, soda fountain, ... gasoline station ... motion picture house, theater, concert hall, sports arena [or] stadium.” In addition, § 2000a(b)(4) emphasizes the importance of physical presence by referring to any “establishment ... which is physically located within” an establishment otherwise covered, or “within ... which” an otherwise covered establishment “is physically located.” (emphasis added) Thus, in interpreting the catchall phrase “other place of exhibition or entertainment” on which plaintiff relies, the statute’s consistent 14. reference to actual physical structures points convincingly to the conclusion that the phrase does not include forums for entertainment that are not physical structures or locations. As the Supreme Court has held, § 2000a(b)(3) should be read broadly to give effect to the statute’s purpose, namely to eliminate the “daily affront and humiliation” caused by “discriminatory denials of access to facilities ostensibly open to the general public.” (emphasis added). This broad coverage stems from a “natural reading of [the statute’s] language,” which should be “given full effect according to its generally accepted meaning.” As such, it is clear that the reach of Title II, however broad, cannot extend beyond actual physical facilities. Given Title II’s sharp focus on actual physical facilities, such as inns, motels, restaurants, gas stations, theaters, and stadiums, it is clear that Congress intended the statute to reach only the listed facilities and other similar physical structures, not to “regulate a wide spectrum of consensual human relationships.” This emphasis on actual physical facilities is reinforced by the cases rejecting Title II claims against membership organizations. In Welsh, the plaintiffs, who were atheists, claimed that the Boy Scouts of America violated Title II in denying them membership, arguing that the Boy Scouts were a “place of ... entertainment.” The majority of the Seventh Circuit panel in Welsh concluded that the Boy Scouts of America is not a “place of public accommodation” under Title II because it is not “closely connected to a particular facility.” In doing so, the Welsh majority distinguished the Boy Scouts from membership organizations in which membership “functions as a ‘ticket’ to admission to a facility or location,” that have been consistently held to be places of public accommodation under Title II. Similarly, the Ninth Circuit in Clegg held that the Cult Awareness Network, a nonprofit organization that provides information to the public concerning cults and supports former cult members, was not a “place of public accommodation” because it had “no affiliation with any public facility.” In short, it is clear from the cases considering membership organizations that status as a place of public accommodation under Title II requires some connection to some specific physical facility or structure. As noted in Welsh and Clegg, to ignore this requirement is to ignore the plain language of the statute and to render the list of example facilities provided by the statute superfluous. In arguing that places of public accommodation are not limited to actual physical facilities under Title II, plaintiff turns to the case law interpreting the analogous “place of public accommodation” provision under Title III of the Americans With Disability Act (ADA). While the case law concerning places of public accommodation under the ADA is more abundant than that under Title II, it is not entirely uniform. Yet, a detour into the parallel ADA cases is instructive and ultimately supports the conclusion that “places of public accommodation” must consist of, or have a clear connection to, actual physical facilities or structures. The circuits are split regarding the essential question whether a place of public accommodation under the ADA must be an actual concrete physical structure. On the one hand, as plaintiff notes, the First Circuit has held that “places of public accommodation” under Title III of the ADA are not limited to actual physical facilities. See Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Assoc. of New England, Inc., 37 F.3d 12, 18-20 (1st Cir. 1994) (holding that a trade association which administers a health insurance program, without any connection to a physical facility, can be a “place of public 15. accommodation”).9 On the other hand, the Third, Sixth and Ninth Circuits, in similar cases involving health insurance programs, followed the logic of Welsh and Clegg in holding that places of public accommodation under Title III of the ADA must be physical places. Thus, it appears that the weight of authority endorses the “actual physical structure” requirement in the ADA context as well. Most significantly, two more recent ADA cases involving fact situations much closer to those at bar reaffirm the principle that a “places of public accommodation,” even under the ADA’s broader definition, must be actual, physical facilities. In one case, the plaintiffs claimed that Southwest Airlines was in violation of the ADA because its “southwest.com” web site was incompatible with “screen reader” programs and thus inaccessible to blind persons. See Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312, 1316 (S.D. Fla. 2002). Thus, the question presented was whether the airline’s web site, which serves as an online ticket counter, constitutes a “place of public accommodation” under the ADA. The Access Now court held that places of public accommodation under the ADA are limited to “physical concrete structures,” and that the web site was not an actual physical structure. Rejecting the invitation to endorse the Carparts approach and apply the ADA to Internet web sites despite their lack of physical presence, the Access Now court concluded that “[t]o expand the ADA to cover ‘virtual’ spaces would create new rights without well-defined standards.” 11 Similarly, in another case, plaintiff contended that the defendant’s digital cable system was in violation of the ADA because its on-screen channel guide was not accessible to the visually impaired. Here too, the district court rejected the notion that the digital cable system was a “place of public accommodation,” because “in no way does viewing the system’s images require the plaintiff to gain access to any actual physical public place,” Furthermore, the Torres court sensibly concluded that the mere fact that the digital cable system relied on physical facilities to support and transmit its services did not convert the cable service into a “physical public place.” In sum, whether one relies on the Title II case law or looks to the broader ADA definition of public place of accommodation, it is clear that the logic of the statute and the weight of authority indicate that “places of entertainment” must be actual physical facilities. With this principle firmly established, it is clear that AOL’s online chat rooms cannot be construed as “places of public accommodation” under Title II. An online chat room may arguably be a “place of entertainment,” but it is not a physical structure to which a member of the public may be granted or denied access, and as such is fundamentally different from a “motion picture house, theater, concert hall, sports arena, [or] stadium.” Although a chat 9 In reaching this conclusion, the First Circuit in Carparts relied on the ADA’s more expansive definition of “place of public accommodation,” in particular its inclusion of a “travel service,” “insurance office,” and “other service establishments” as places of public accommodation. Focusing on these terms, the First Circuit concluded that “Congress clearly contemplated that ‘service establishments’ include providers of services which do not require a person to physically enter an actual physical structure,” and thus that the Title III of the ADA is not limited to “physical structures which person must enter to obtain goods and services.” Simply put, the Carparts court found it irrational to conclude that Title III of the ADA reaches those who enter an office to purchase insurance services, but not those who purchase them over the mail or by telephone. Notably, Title II of the Civil Rights Act does not include a “travel service,” “insurance office,” or “other service establishments” in its definition, making the relevance of Carparts and its progeny to Title II questionable, at best. 11 But see Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (citing Carparts approvingly and stating, in dicta, that Title III of the ADA reaches “the owner or operator of a store, hotel, restaurant, dentist’s office, travel agency, theater, Web site, or other facility (whether in physical space or in electronic space)”) (emphasis added) (citation omitted). 16. room may serve as a virtual forum through which AOL members can meet and converse in cyberspace, it is not an “establishment,” under the plain meaning of that term as defined by the statute. Unlike a theater, concert hall, arena, or any of the other “places of entertainment” specifically listed in § 2000a(b), a chat room does not exist in a particular physical location, indeed it can be accessed almost anywhere, including from homes, schools, cybercafes and libraries. In sum, although a chat room or other online forum might be referred to metaphorically as a “location” or “place,” it lacks the physical presence necessary to constitute a place of public accommodation under Title II. Accordingly, even if plaintiff’s Title II claim were not barred by § 230’s grant of immunity to service providers, it would be fail [sic] on the independent ground that AOL’s chat rooms are not places of public accommodation…. [The court rejected Noah’s breach of contract claim based on various limitations in the contract terms. The court also rejected Noah’s First Amendment claims because AOL is not a state actor.] NOTES AND QUESTIONS For a more recent case involving very similar issues, see Ebeid v. Facebook, Inc., 2019 WL 2059662 (N.D. Cal. 2019) (reaching the same outcome). The Race and Religious Dimensions of this Case. How do you think Noah’s race and religion affected AOL’s dealings with him? Why do you think AOL didn’t enforce its TOS more aggressively? Do you think Noah’s race and religion played a role in the court’s opinion? If civil rights laws protect against online services’ discrimination based on a person’s characteristics, they may equally protect the interests of people with majority characteristics. If Noah won this case against AOL, would a Christian user be able to force AOL to remove any Muslim-advocacy chatrooms because any criticisms of Christianity in the chatrooms discriminate against him? Cf. Wilson v. Twitter, 2020 WL 3410349 (S.D.W.V. 2020) (a Christian heterosexual unsuccessfully sued Twitter for discrimination because it removed his pro-Christian and pro-heterosexual content); Lewis v. Google LLC, 2020 WL 2745253 (N.D. Cal. 2020) (the plaintiff claimed national origin discrimination by YouTube because he “is a patriotic American citizen who promotes Constitutional rights of Americans, Christian beliefs and American laws and culture”); Domen v. Vimeo, Inc., 433 F. Supp. 3d 592 (SDNY 2020) (the plaintiff claimed Vimeo discriminated against him based on his sexual orientation because it removed his videos lauding conversion therapy). Questioning AOL’s Choices. What do you think should AOL do differently? Some options: AOL could remove posts that users complain about. In other words, Noah could send takedown notices for posts that offend him. That solution would be after-the-fact, so offending posts would still cause some harm before removal. Further, do you agree that all of the posts highlighted by Noah should be removed? Some posts are unquestionably offensive and stupid, but they are likely First Amendment-protected speech (which doesn’t apply to AOL, but it does indicate their “legality”), and other comments might be bona fide, if misguided, contributions to an actual debate. Because everyone in their chatroom will have idiosyncratic standards for they think 17. is acceptable content, how can an intermediary like AOL successfully navigate its chatroom users’ different and possibly constantly shifting standards? To avoid acting after-the-fact, AOL could prescreen all chatroom submissions. Even if AOL could do a perfect job of prescreening, the time-delay would turn the chatroom into an asynchronous message board. If the prescreening costs or liability risks are too great, AOL could decide chatrooms aren’t worth it and shut them down entirely. Do you prefer any of these options over the approach AOL actually deployed? Can you think of any options not mentioned above that will make some people better off without making anyone worse off? Or can you think of other options that will benefit some people and disadvantage others? In the latter case, who should decide which groups to privilege and which to disadvantage? We will revisit the balancing act faced by intermediaries when we talk about intermediary liability later in the book, especially with respect to Section 512 and Section 230. Internet Exceptionalism. “Internet exceptionalism” means regulating the Internet differently than other media. In some cases, the Internet is sufficiently different from other media that we can justify Internet exceptionalist regulation. In other cases, the differences between the Internet and other media are exaggerated, making the different legal treatment impossible to justify. Internet exceptionalism can cut both ways—we could give legal preferences to Internet actors (like 47 U.S.C. §230, discussed later in the book), or we could burden Internet actors more than other media actors. More commonly, as part of a “techno-panic,” regulators overreact to emerging Internet technologies and seek to burden the new development because it’s new and scary, not because the legal distinctions are analytically justifiable. Is Internet exceptionalism justified? In 2017, Justice Kennedy wrote: While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow. Packingham v. North Carolina, 137 S. Ct. 1730 (2017). In a concurrence, Justice Alito added: “Cyberspace is different from the physical world.” A November 2017 online survey asked: “Should the federal government regulate large social media platforms (eg Facebook/Twitter) that display, but don't produce, content in the way the government regulates media companies?” Respondents answered yes 34% and no 62%. (see https://drive.google.com/file/d/0B-OW6-tDrcdMN0h4THpwUnJadFE/view). But did respondents favor more, or less, regulation of social media platforms compared to offline media? 18. In support of Internet exceptionalism, consider some categories of activity that do not exist in the offline world: Consumer review websites like Yelp, where consumers can share their opinions about businesses with strangers. Consumer-to-consumer marketplaces like eBay Peer-posted free-to-access “how-to” videos on YouTube. (And cat videos). Wikipedia Can you think of other examples of content and services that exist only online? Also, recall the ACLU v. Reno discussion about some of the ways that the Internet differs from other media. Social Media Exceptionalism. In exploring social media exceptionalism (we’ll define and discuss “social media” later) as a subset of Internet exceptionalism, researcher danah boyd identified four key attributes of social media: • persistence: the durability of online expressions and content; • visibility: the potential audience who can bear witness; • spreadability: the ease with which content can be shared; • and searchability: the ability to find content. DANAH BOYD, IT’S COMPLICATED: THE SOCIAL LIVES OF NETWORKED TEENS (2014). She adds that these attributes “are not in and of themselves new….What is new is the way in which social media alters and amplifies social situations by offering technical features that people can use to engage in these well-established practices.” What do you think of this? Cyber-Bullying. Was Noah “cyber-bullied” or “cyber-harassed” (based on whatever those terms mean to you)? Have you ever experienced similar online remarks directed towards you? If you’re not Muslim, do you think your first-hand experiences might differ from Noah’s? Do the Trump-era anti-Muslim actions by the U.S. government highlight why Muslim-Americans might feel threatened or vulnerable? Cyberspace and “Places of Public Accommodation.” What policy rationales did the court provide in rejecting Noah’s argument that AOL was a place of public accommodation? Because of the court’s ruling, AOL has more favorable legal treatment than certain categories of offline retail establishments. Can you think of persuasive reasons to treat online venues like AOL differently than physical venues like restaurants? As the Noah case indicates, courts will look past the online nomenclature and metaphors that invoke familiar offline concepts. See, e.g., Young v. Facebook, Inc., 790 F. Supp. 2d 1110 (N.D. Cal. 2011): Despite its frequent use of terms such as “posts” and “walls,” Facebook operates only in cyberspace, and is thus is not a “place of public accommodation” as construed by the Ninth Circuit. While Facebook’s physical headquarters obviously is a physical space, it is not a place where the online 19. services to which Young claims she was denied access are offered to the public. Nevertheless, the caselaw is split about the Internet’s physicality. Compare Freedom Watch, Inc. v. Google, Inc., 368 F. Supp. 3d 30 (D.D.C. 2019) (D.C. Human Rights Act only applies to physical places, not Facebook or Twitter speech forums) with Harrington v. Airbnb, Inc., 348 F. Supp. 3d 1085 (D. Ore. 2018) (Airbnb is a “place of public accommodation” because it offers a “service of searching for, finding, and booking an accommodation using its online platform”). In particular, in Americans with Disabilities Act claims (Title III, compared with the Noah court’s analysis of Title II), courts increasingly classify Internet services as places of public accommodation. This has become routine in cases where the defendant has offline retail stores and the website/app relates to those stores, such as the ability to place orders. See, e.g., Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019) (“the ADA mandates that places of public accommodation, like Domino’s, provide auxiliary aids and services to make visual materials available to individuals who are blind. This requirement applies to Domino’s website and app, even though customers predominantly access them away from the physical restaurant”). Some courts have gone further and imposed ADA requirements on online-only defendants. See, e.g., National Association of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012) (Netflix is a place of public accommodation for purposes of the Americans with Disabilities Act); compare National Association of the Deaf v. Harvard University, 377 F. Supp. 3d 49 (D. Mass. 2019) (Section 230—discussed more later in the book—may apply to the ADA claims when applied to third-party videos hosted on Harvard’s network). For a recap of the various majority/minority legal standards in applying the ADA to online services, see Martinez v. San Diego County Credit Union, 2020 WL 3396649 (Cal. App. Ct. June 19, 2020). The “Company Town” Analogy. In traditional government-operated public forums, such as streets and sidewalks, the First Amendment robustly protects citizens’ speech. For this reason, the First Amendment limits the ability of privately owned “company towns” to restrict speech on their streets and sidewalks. Online, some commentators have claimed that the Internet giants own the “virtual streets and sidewalks” and should be similarly required to comply with First Amendment restrictions. These arguments have not fared well in court. See, e.g., Prager University v. Google LLC, 951 F.3d 991 (9th Cir. 2020): YouTube does not perform a public function by inviting public discourse on its property….Unlike the company town in Marsh, YouTube merely operates a platform for user-generated video content; it does not “perform[] all the necessary municipal functions,” nor does it operate a digital business district that has ‘all the characteristics of any other American town.’ In contrast, when the government (including elected officials) runs an online speech forum, such as social media accounts, any restrictions on constituent speech can trigger First Amendment scrutiny. See Knight First Amendment Institute at Columbia University v. 20. Trump, 928 F.3d 226 (2d Cir. 2019) (Pres. Trump’s Twitter account, which he admitted he used for official government purposes, was a public forum, so his blocking of citizens from responding to his Twitter account violated the First Amendment). What Does Physical Presence Mean? In Minnesota, it’s a crime to “engage in masturbation or lewd exhibition of the genitals in the presence of a minor under the age of 16, knowing or having reason to know the minor is present.” Does the statute refer to physical presence, virtual presence (whatever that means), or both? In other words, does texting a dick pic to a minor violate this statute? Compare State v. Decker, 916 N.W.2d 385 (Minn. 2018) with State v. Legassie, 171 A.3d 589 (Me. 2017) (no conviction for Maine’s “indecency” crime). Another scenario: Journalist Kurt Eichenwald has epilepsy, something he’s publicly discussed many times. A Twitter troll knew of Eichenwald’s epilepsy, and the troll tweetreplied to Eichenwald’s Twitter account a strobing animated GIF with the goal—and effect—of triggering an epileptic seizure. Eichenwald brought a civil lawsuit against the troll, including a claim for battery. The legal standard for civil battery: “intentionally, knowingly, or recklessly caus[ing] bodily injury [or] intentionally or knowingly caus[ing] physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.” Did sending the GIF constitute a “battery”? The court rejected a motion to dismiss. “Plaintiff has alleged that light waves emitted from the GIF touched Plaintiff’s retina, generated an electric signal, and caused a seizure. Taking, as the Court must, Plaintiff’s allegations as true, including his characterization of the science and Plaintiff’s physical condition, there was physical contact.” Eichenwald v. Rivello, 318 F. Supp. 3d 766 (D. Md. 2018). The court explained: Defendant here allegedly chose to use the electronic capabilities of a computer as a weapon—as a means of causing physical harm. Defendant’s tweet, activating certain harmful capabilities of the transmitting computer, converted the computer into a weapon to inflict physical injury. The computer and the tweet were no longer merely a mode of communication. Something more, and separate, from mere communication occurred...an offensive touching. If light waves touching a human eyeball constitutes physicality, does that collapse any distinction between the online and offline worlds?