User:Stabotage/Milgram

Purpose
I'm using this page to collect my notes, sources, and draft versions of an upcoming article about Milgram v. Orbitz, a case applying § 230 of the Communications Decency Act, which I am writing for WikiProject Cyberlaw.

Statutes/Regulations

 * - Cornell's US Code page for 47 U.S.C. § 230
 * Wikipedia article about 47 U.S.C. § 230
 * Note: The above WP article introduces § 230 in a sentence reading: "Section 230 of the Communications Decency Act of 1996 (a common name for Title V of the Telecommunications Act of 1996) . . . codified at ."
 * On one hand, the Telecommunications Act portion may be overkill/unnecessary, but on the other hand it may help the article look better-sourced and more professional
 * Administrative Rules of the Division of Consumer Affairs, promulgated under NJ Consumer Fraud Act (PDF)
 * Advertising regulations (subchapter 9) begin on page 45A-16.0.4

Opinion

 * Order granting summary judgment and letter opinion
 * Above link is cited on Eric Goldman's blog (linked below) as "Milgram v. Orbitz Worldwide, LLC, ESX-C-142-09 (N.J. Super. Ct. Aug. 26, 2010)"
 * It would be nice to represent the above in a Wikipedia court citation template, but that page's instructions seem to only support citations that have been reported, rather than those referenced only by docket number
 * Attempt to wikicode a link similar to the functionality provided by the template: Milgram v. Orbitz Worldwide, LLC, ESX-C-142-09 (N.J. Super. Ct. Aug. 26, 2010)

Press Coverage

 * Judge throws out N.J. lawsuit against Bruce Springsteen ticket resellers (NJ.com, posted by "Star-Ledger Staff," apparently staff of the local newspaper)
 * AG Milgram quoted as calling the sites' practices "plain fraud. . . . You can’t tell consumers that you have a ticket to sell when in fact you do not have that ticket."
 * Peter Harvey, former NJ AG and counsel for defendant TicketNetwork: "The question was, if a ticket seller makes a mistake in the description of the item being sold, does the provider have liability for that, and the answer is no."
 * Two of the three other ticket resellers sued at the same time agreed to settle for $5,000

Blog Posts

 * Online Ticket Resellers Get Significant 47 USC 230 Win--Milgram v. Orbitz (Technology & Marketing Law Blog, from an associate law professor at Santa Clara University named Eric Goldman)
 * Mentions "[t]he court does not cite many of the cases upholding a publisher's 230 eligibility for advertising" before linking another post of his discussing several such cases
 * Consumer protection agency angle: "Further, consumer protection agencies usually win if they get into court. Judges are very sympathetic to consumer protection issues when the government raises them. Here, the clear-thinking judge recognized that NJ's enforcement action was not necessarily in the consumers' best interests."
 * Distinguishes a case called FTC v. Accusearch, which some commentators thought meant that e-commerce sites would have little or no protection under § 230, by pointing out that the Accusearch defendant "actually fulfilled the purchase," while the defendants here hosted listings and provided guarantees for what were still third-party sales.
 * Online Ticket Resellers Immune Under the Communications Decency Act (The IP Law Blog, from Weintraub Genshlea Chediak Law Corporation, by attorney Jeffrey Pietsch)
 * Mentions the CDA's roots as indecency/obscenity regulation, smackdown in Stratton Oakmont, and addition of § 230
 * Phrases the first-party/third-party distinction vs. Accusearch mentioned in Eric Goldman blog post as: "The defendants served as a conduit for information provided by another information content provider and, therefore, are afforded the broad immunity under the CDA."
 * Top Internet Law Developments of 2010 (informIT, "the online presence of the family of information technology publishers and brands of Pearson, the world's largest learning company," article written by Eric Goldman of the blog post mentioned above)
 * Mention of Milgram v. Orbitz as "[t]he biggest defense win of the year" in 47 U.S.C. § 230 litigation

Related Cases

 * Zeran v. America Online, early case applying § 230 to find provider immunity
 * , binding NJ § 230 precedent cited in opinion
 * , 9th Circuit case applying § 230 immunity to provider of a commercial service
 * Carafano v. Metrosplash.com, a 9th Circuit case where control over the type of content that users could post did not render the host an information content provider
 * , 9th Circuit case distinguished because web site required users to provide certain information that violated anti-discrimination laws in order to join

Other

 * Orbitz, defendant
 * New Jersey Division of Consumer Affairs, office employing the non-AG plaintiff
 * home page
 * Office of Consumer Protection home page ("The main responsibility of the OCP is to enforce the Consumer Fraud Act and its regulations")

Factual Background

 * Defendants and their services
 * NJ fraud concerns

Legal Background

 * NJ fraud laws
 * Investigation
 * Claims
 * CDA immunity

Defendant an Interactive Computer Service?

 * Long enough for a full section, or mention briefly in introduction of this section?

Defendant an Information Content Provider?

 * Donato and Carafano
 * Defendants' exercise of control
 * Supplier/Conduit?

Parties

 * Alice Milgram, attorney general of New Jersey at the time of filing. At time of decision, plaintiffs were attorney general and director of the New Jersey Division of Consumer Affairs
 * Orbitz Worldwide, LLC, its affiliate Cheaptickets, and similar service TicketNetwork

Nature of Defendants' Services
TicketNetwork operates TicketNetwork Exchange, a service through which third-party sellers can list tickets for sale, and buyers can search for, read listings about, and purchase tickets from the third-party sellers. These sellers consist of both individuals scalping tickets they personally bought and professional ticket resellers. At no point does TicketNetwork possess the actual tickets for sale. Orbitz owned Cheaptickets, a similar site. Orbitz entered into an agreement with TicketNetwork allowing Cheapticket's listings to participate in the TicketNetwork Exchange. Neither network guaranteed the accuracy of ticket listings or the availability of tickets. However, in its "Broker Guidebook," TicketNetworks prohibited the sale of tickets the seller did not currently have in hand (or proof of purchase), and required sellers to accurately list the seat location printed on the tickets for sale. TicketNetworks also guaranteed buyers on its Exchange a row and seat equal or better to the one purchased, and offered a full reimbursement if the tickets did not arrive in time or were not valid.

Investigation
The Division of Consumer Affairs received reports that tickets for an upcoming Bruce Springsteen concert were on sale on ticket vending sites prior to the date that such tickets were on sale to the public. An investigator visited the Cheaptickets site six days before the public on-sale date and purchased two tickets. When the tickets arrived, the issuing authority confirmed that they had been printed and sold several days after the investigator ordered them, on the public on-sale date.

CDA Immunity
47 USC § 230 reads that no provider or user of an "interactive computer service" should be treated as a publisher of information provided by an "information content provider." In effect, the section bars "lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions, such as deciding whether to publish, withdraw, postpone or alter content."

Claims

 * Plaintiffs alleged that defendants' actions constituted deception, fraud, and other violations of New Jersey's Consumer Fraud Act by: falsely implying the seller had possession and control of the tickets; advertising tickets for sale before they were available to the general public; advertising seats that did not physically exist in the stadium
 * Defendants moved to dismiss, arguing that the complaint was pre-empted by 37 U.S.C. § 230
 * Plaintiffs countered that § 230 immunity should not apply because their claims treated defendants as "commercial actors" rather than publishers/speakers, and defendants qualify as "information content providers" because of their non-passive involvement in editing and deleting content

Issues

 * Are defendants providers or users of an interactive computer service?
 * Does the cause of action require the court to treat the defendant as the publisher/speaker of content provided by another?
 * Did defendants' conduct make them information content providers for the particular (allegedly fraudulent) ticket listings in question?

Interactive Computer Service?
Yes. In fact, the court said there was "no issue."

Publisher/Speaker?
Non-defamation causes of action can also be pre-empted by § 230 immunity if "courts must ask whether the duty that the plaintiff alleges the defendant violated derives from the defendant's status as a 'publisher or speaker.'" Plaintiffs argued that defendants are "commercial actors" rather than publishers, but the court held that to be irrelevant. Plaintiffs were seeking to enjoin defendants from posting certain types of information (fraudulent ticket listings) on their site, which falls within the CDA's purview. This is confirmed both by the statutory language explaining that the statute was intended to "promote the development of e-commerce" and the Ninth Circuit holding in Barnes v. Yahoo!.

Information Content Providers?
First, the court discussed two cases: Donato and Carafano. In Donato, the plaintiff argued that the defendant bulletin board operator was an information content provider because he shaped the content of his forum by selectively deleting certain posts. The court found this to be "nothing more than the exercise of a publisher's traditional editorial functions," as well as "the very conduct Congress chose to immunize by § 230. As a result, the court found the defendant immunized by § 230.  Carafano presented similar facts, but the defendant in that case operated a dating website.  To join, members would fill out a standard form to complete their profile, including several multiple-choice questions with pre-selected answers.  The plaintiff argued that this control over the form and even contents of responses meant that defendant participated in the "development" of the information, making him an information content provider.  The court disagreed, finding that a defendant's editing or selection do not render him a provider as long as the "essential" content is provided by a third party.

Next, the court examined the control that defendants exercised over their sites' content. Orbitz's control was largely formal, with requirements as to where Orbitz's name, logos, and other design elements should be located, but Orbitz also retained the ability to insert certain links and request removal of content. TicketNetwork provided payment services, customer service, and confirmation emails, and performed some level of verification of events and brokers.

The court finally concluded that the defendants were not information content providers. In its view, the defendants' actions were "nothing more than the exercise of a publisher's traditional editorial functions," as in Donato and Carafano. The inaccurate/misleading ticket information originated not from defendants, but from third-party sellers. The court distinguished Roommates.com, a case in which the defendant service was NOT granted immunity under § 230, because the defendant in that case was "actively participating in the objectionable content" by requiring users to provide certain information in violation of a state anti-discrimination statute in order to register. Here, the objectionable content complained of (the fraudulent listings) was not supplied, required, or requested by the defendants, who merely provided an interface that in and of itself did not violate any laws. The court also distinguished another case involving online ticket sales, where the trial court had determined that the defendants had "materially contributed to the illegal 'ticket scalping' of its sellers."

Conclusion
The court granted defendants' motions for summary judgment, finding that they "help to create and maintain a vibrant, competitive, market" for consumers of travel and concert tickets shopping online, consistent with Congress's intent in enacting § 230 of the CDA.

To Do

 * Link this article in the "False Information" subsection of the "Court Decisions on Section 230" section of the "Section 230 of the CDA" Wikipedia article
 * Link this article in the "Alleged fraud" subsection of the "Controversies" section of the "Orbitz" Wikipedia article, which already mentions this incident, but not the case name