In a recent Hot Type column I discussed the privilege Web hosts now enjoy to run a bawdy house. Thanks to the way the courts have interpreted Section 230 of the Communications Decency Act -- ironically named under the circumstances -- Web hosts that passively allow the public to post any comments they please, even ones that are libelous and defamatory, bear no legal responsibility for them.
Web hosts, enjoy it while you got it. Seventh Circuit appellate judge Frank Easterbrook has already gone off on tangents in a couple of opinions to argue that Section 230 has been wrongly interpreted. If Easterbrook gets his way, blanket legal immunity will disappear, and states will become free to coerce Web hosts into cleaning up their sites by stringently regulating them.
And if the goal's to bring those sites to heel, it appears a legal reinterpretation of Section 230 isn't the only way to skin the cat.
On May 26 the Las Vegas Review-Journal carried an article on an ongoing tax-evasion trial in the local federal courts. The paper described the accused as "a self-made entrepreneur [who] paid his workers in gold and silver coin, and said they could go by the coins' face value -- rather than the much higher market value of their precious metal content -- for federal tax purposes."
This scheme -- if scheme is the right word -- struck some readers as plenty cool, kind of Robin Hood-ish. Making their feelings known on the paper's Web site, one reader called the prosecutor "evil incarnate and everything that is against the American justice system." Another said that if the jurors found the defendant guilty they "should be hung." A third was willing to bet "quatloos" -- that's what money was called on the planet of Triskelion in a second-season episode of Star Trek -- that a certain prosecutor wouldn't live to see his next birthday.
According to a June 7 column by Thomas Mitchell, editor of the Review-Journal, the U.S. attorney reacted to the outburst by serving the paper with a grand jury subpoena. There'd been 100-some postings, and the grand jury demanded every piece of information the newspaper had about all of them -- such as "full name, date of birth, physical address, gender, ZIP code, password prompts, security questions, telephone numbers and other identifiers," including IP addresses.
Mitchell commented, "There was no indication what they were looking for or what crime, if any, was being investigated, just a blank subpoena for voluminous and detailed records on every private citizen who dared to speak about a federal tax case."
Mitchell conceded that "a grand jury can subpoena just about anyone for any reason. . . . But what time, effort and tax-funded expenses are being expended by the U.S. attorney's office to track down a bunch of posturing blowhards squandering their Fifth Amendment right against self-incrimination? My first instinct is to fight the subpoena tooth and nail. . . . On the other hand, if someone were to confess to a real and specific crime on our Web site, I'd give him up at the drop of a hat.
"Bottom line: We could fight the federal subpoena, at considerable expense, and lose. Our attorneys are now trying to see if we can limit the scope of the information sought."
Most of what the government was asking for the paper didn't even have, Mitchell observed. "We don't require registration. A person could use a fictitious name and e-mail address, and most do. We have no addresses or phone numbers." Mitchell seemed to think the prosecutors didn't realize that.
But isn't it just as likely that the prosecutors did? Perhaps a message was being sent: Section 230 notwithstanding, we have ways of making your life miserable.
Ten days later the Review-Journal published a progress report. A revised subpoena had arrived. Now the grand jury wanted information on only two of the commenters -- the one who said the jurors should be hanged and the one predicting a prosecutor wouldn't live to his next birthday. And the paper intended to comply.
After all, Mitchell was quoted as saying, "I'd hate to be the guy who refused to tell the feds Timothy McVeigh was buying fertilizer."
Message sent; message received. And the Nevada ACLU, distressed by the Review-Journal's new mood of acquiescence, was filing a motion of its own to quash the second subpoena.