On November 3, 2022, the United States Court of Appeals for the Fourth Circuit agreed with an amicus brief filed in 2021 by the Lowenstein Center for the Public Interest on behalf of the Lawyers’ Committee for Civil Rights Under Law and the National Fair Housing Alliance by ruling that an online aggregator of public records cannot claim protection from liability under Section 230 of the Communications Decency Act when it violates the Fair Credit Reporting Act by posting inaccurate credit reports online.
In the underlying case, Tyrone Henderson Sr. et al. v. The Source for Public Data LP, plaintiffs sued several defendants linked to a website, PublicData.com, that provided background-check reports; plaintiffs alleged that the site failed to adhere to accuracy and disclosure requirements in violation of the Fair Credit Reporting Act (“FCRA”). The Eastern District of Virginia dismissed plaintiffs’ complaint because it found that defendants’ alleged conduct was immune under Section 230 of the Communications Decency Act (“Section 230”). Plaintiffs then appealed the dismissal to the Fourth Circuit.
Lowenstein’s amicus brief argued that the District Court’s opinion improperly expanded Section 230’s protections and opened the door for online companies to escape liability for otherwise unlawful activities, noting that such an expansion would be particularly troubling because it could immunize online companies against civil rights, voting rights, and other discriminatory conduct claims stemming from their online actions. The amicus brief sought to protect the rights conferred by federal statutes—including, for example, the Fair Credit Reporting Act, the Voting Rights Act, the Fair Housing Act, The Civil Rights Act, the Ku Klux Klan Act, and Equal Credit Opportunity Act—in the online context and to ensure that violations of such laws online would not be protected under Section 230.
As reported in Law360, the Fourth Circuit reversed and remanded the case (thus reviving the credit reporting class action), holding that online companies should be held liable for discriminatory conduct; and that the improper expansion of Section 230 of the Communications Decency Act—which shields platforms like Twitter and Facebook from liability for content created by third parties—would immunize online companies simply because the unlawful activities took place online rather than in person.
The decision by a panel of three justices held: "Section 230 provides protection to interactive computer services. But it does not insulate a company from liability for all conduct that happens to be transmitted through the internet."
This interpretation of Section 230 is likely to have far-reaching implications, well beyond the parties to the case and FCRA. Other amici in the case included the Consumer Financial Protection Bureau and Federal Trade Commission.
The mission of both of the center’s nonprofit clients in this matter is the prevention of online discrimination and unfair data practices. The Lawyers’ Committee’s Digital Justice Initiative seeks to combat online discrimination and deceptive data practices targeting Black Americans and other communities of color. The Lawyers’ Committee had an interest in this case because, as stated in the amicus brief, “the scope of Section 230 of the Communications Decency Act cannot be allowed to substantially and adversely impact the manner and extent to which civil rights laws can be enforced against discriminatory practices occurring through the Internet.”
The National Fair Housing Alliance (“NFHA”) is a consortium of approximately 167 private, non-profit, fair housing organizations, state and local civil rights groups, and other organizations dedicated to fair housing. Relying on the Fair Housing Act and other civil rights laws, NFHA undertakes important enforcement initiatives in cities and states across the country and participates as amicus to further its goal of achieving equal housing opportunities for all. NFHA has long had an interest in ensuring that Section 230 of the Communications Decency Act poses no barrier to the effective enforcement of the Fair Housing Act and other civil rights laws.
Zarema A. Jaramillo, Sydney J. Kaplan, Joshua E. Morris, Mary J. Hildebrand, and David Leit were members of the Lowenstein pro bono team.
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