Section 230 immunity for case-based identity/reputation systems?

Section 230 immunity for case-based identity/reputation systems?

Summary: As an example of someone who thinks he owns his reputation data, here's lawyer John Henry Browne, threatening to sue new lawyer rating service Avvo over a rating he says is unjustifiably low.

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TOPICS: Legal
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As an example of someone who thinks he owns his reputation data, here's lawyer John Henry Browne, threatening to sue new lawyer rating service Avvo over a rating he says is unjustifiably low. That link comes via Joe Andrieu on the Project VRM list, who earlier this week had these musings about reputation as case-based identity:

Perhaps considering reputation as case-based identity, we can start to outline the components required for such case-based systems to work:

* transaction data (potentially including opinions of others) * algorithmic evaluation * refutation process

These may not be the definitive requirements for a reputation system, but they seem to be present in the working systems I know of and are perhaps a good starting point.

For the record, I think it is an even bet as to whether or not personal opinions can be effectively integrated as "transaction history" in a case-based identity system, given the challenges of emotions, grudges, slander, and the non-provability of opinions.

It is also a near certainty that for certain types of case-based identity that the user will never be able to actually fully control the data-set. For example, I could significantly improve my credit score if I had read-write control over that data-set. Unfortunately, that would render the current system completely ineffective. Perhaps a new one could emerge, but there are other domains, such as criminal records, etc., where an authoritative reputation requires a data-set with limited or heavily moderated user control–otherwise everyone would erase those pesky traffic violations.

Against this context, the kind of ownership and control over one's reputation data attorney Browne and others are threatening to enforce in court may find itself running up against Section 230 of the Communications Decency Act, which shields providers of interactive computer services from liability for simply filtering and/or distilling information provided by others. Though a California district court recently skirted the issue of whether Section 230 immunizes search engines for the reputational consequences of their ranking and placement algorithms, the situation is analogous. It's interesting that unlike the search engine cases, these attorneys aren't complaining about reputational slippage; they're saying Avvo's rating system has harmed them from the get-go.

What's not clear from the lawyers' demand letter is the legal basis for the threatened lawsuit. Defamation I assume, but what's defamatory? Individual components of the rating or the rating itself? Avvo says it merely synthesizes data from third party sources, including the subject lawyers if they choose to participate in the process (e.g., by claiming and editing "unlocked" portions of their profiles or reporting incorrect data). The key question for Section 230 purposes will be whether Avvo and other reputational ranking systems are embellishing or enhancing third party material (or creating new material) by virtue of the way it is collected, processed, and displayed. (See Professor Eric Goldman's excellent post on the recent Ninth Circuit decision/"hairball" that is Fair Housing Counsel v. Roommates.com.)

[Update:] Declan McCullagh has a good piece on Avvo, particularly the section on the difficulty of rating lawyers. Declan points to some of the more eye-opening ratings for folks like U.S. Supreme Court Justices: "When asked about Justice Ginsburg's lackluster rating, [Avvo CEO Mark Britton] replied, 'Arguably, her rating is a bit less efficient.'" Arguably. Arguably, things like peer endorsements and client ratings should operate, um, differently when it comes to jurists or legal scholars.

Speaking of which, my own unedited, uncontributed-to rating is 6.3 — the same as Larry Lessig's, and just two clicks below Justices Ginsburg and Alito (that we all have the same "experience" rating — 3 — is nothing short of comical; Avvo also has my location wrong, which tells me their last poll of CA bar information was several months ago).

Adding to Declan's thoughts on the slippery nature of this kind of reputation ranking, it will be interesting to see whether and how Avvo will attempt to police the inevitable gaming of its peer endorsement and client rating components. I haven't yet heard of LinkedIn (which also has an endorsement mechanism) having to contend with this issue, but there are some key differences: people choose to be in LinkedIn (lawyers are in Avvo whether they like it or not, and there doesn't appear to be an opt-out), and LinkedIn isn't rating anybody, or attempting to tell would-be clients or customers "how well" a member could handle a piece of work.

[Update, 6/14]: The suit has been filed, see John Cook's coverage and Regina Mullen's discussion/analysis of the complaint.

[Update, 6/18]: Santa Clara law professor Eric Goldman weighs in on the Avvo case, Section 230, and Roommates.com:

Let's put all of this aside and focus on the doctrinal issue that seems preeminent: 47 USC 230. To the extent that the plaintiffs seek to hold Avvo liable under state consumer protection laws for third party content, this lawsuit should be cleanly preempted by 47 USC 230. As an example, I'm reasonably confident that eBay would argue vociferously that its numerical feedback rating is protected by 230 (among other doctrines).

But it's hardly clear that Avvo gets the benefit of the statute. First, arguably, the lawsuit is based on the word choices that Avvo made in describing/characterizing the data and the output, not the underlying third party data. Second, this case goes straight to the doctrinal murkiness of the Roommates.com case. Recall Reinhardt's reformulation that Roommates.com lost 230 protection because "Roommate categorizes, channels and limits the distribution of information, thereby creating another layer of information." Isn't this exactly what Avvo does too? I sure hope the Ninth Circuit cleans up the Roommates.com hairball before cases like this test its limits.

Also, Carolyn Elefant and I joined the named plaintiff John Henry Browne on the Lawyer2Lawyer show to discuss the case (MP3; feed). Carolyn made some great points about how the legal profession and its institutions (particularly state bar associations) have dropped the ball on making this kind of information accessible (implying I believe that even a system that may be less than perfect/still getting the kinks out is better than nothing).

Topic: Legal

Denise Howell

About Denise Howell

Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law.

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