Law 360 reports that
an online aggregator of public records sought Tuesday to persuade a skeptical Fourth Circuit panel that it’s entitled to the same liability protections as social media giants, arguing that an effort to revive a credit reporting class action against it risks setting a “truly dangerous” precedent for the internet.
The question before the 4th Circuit is whether Section 230 of the Communications Decency Act — which immunizes an “interactive computer service” from being “treated” as “publisher or speaker” of “information provided by another information content provider,” 47 U.S.C. § 230(c)(1)—protects Public Data from being sued for making public records created by third-party courts available in an online, searchable database.
Law 360 notes that
the suit alleges that PublicData.com creates and sells what are essentially background checks without adhering to the FCRA’s accuracy, disclosure and other requirements for such reports. According to the consumers, their case isn’t barred by Section 230 in part because it’s focused on the site’s conduct as a content creator, not the content itself.
But Misha Tseytlin, an attorney for PublicData.com, argued…that if the panel buys that reasoning, it would be opening the door for others to apply all manner of harsh, ostensibly conduct-based regulations to platforms across the internet.
The case is Henderson et al. v. The Source for Public Data LP et al., U.S.C.A. (4th Cir., No. 21-1678)
The Fourth Circuit panel was U.S. Circuit Judges Quattlebaum, Richardson, and G. Steven Agee. The consumers are represented by Jennifer D. Bennett of Gupta Wessler PLLC. The PublicData.com defendants are represented by Misha Tseytlin of Troutman Pepper. The FTC is represented by its own Theodore (Jack) Metzler. The state amici are represented by Kyle Highful of the Texas Office of the Attorney General.
Numerous amici were filed in support of Henderson:
- A bipartisan collection of eighteen states (Alabama, Arkansas, Connecticut, Georgia, Iowa, Maine, Michigan, Minnesota, Mississippi, Nebraska, Nevada, North Dakota, Ohio, South Carolina, South Dakota, Utah, Vermont, and Virginia)
- The FTC and the CPFB
- The Lawyers’ Committee for Civil Rights Under Law and the National Fair Housing Alliance (NFHA)
- National Consumer Law Center (NCLC), Upturn, American Civil Liberties Union (ACLU), National Low Income Housing Coalition (NLIHC), National Housing Law Project, and the National Employment Law Project (NELP).
- 2021 10 08 – Joint Appendix
- 2021 10 12 – Henderson Opening Brief
- 2022 01 07 – The Source for Public Data Brief
- 2022 03 07 – Henderson Reply Brief
Eric J. Ellman is Senior Vice President for Public Policy and Legal Affairs at the Consumer Data Industry Association (CDIA) in Washington, DC. He also served for eight months as Interim President and CEO of the Association. More