Guns

Armslist Not Liable for Allowing Searches for Private-Seller Gun Ads

So the Wisconsin Supreme Court held yesterday, reversing a Wisconsin Court of Appeals decision.

|The Volokh Conspiracy |

Can a web site be liable for things its users post? No, the federal 47 U.S.C. § 230 statute generally provides, whether the posts are libelous, emotionally distressing, crime-promoting, or whatever else (with some exceptions, such as for federal intellectual property laws). But the sites are responsible for their own speech, and their own decisions that themselves create actionable speech.

To give an example from one leading case, the Ninth Circuit Roommates.com decision:

  • A web site that features ads for roommates isn't liable when users themselves post ads that contain discriminatory roommate preferences (even if the law can bar such discrimination in roommate selection, which is a separate question). That's just the users' own choice, for which they and only they can be held liable.
  • But the site can be liable if it expressly requires subscribers to state such preferences, since then it is itself "develop[ing]" the legally punishable material.

Now say that a web site lets users post ads for gun transactions. Under § 230, it can't be liable simply because some ad that users posted leads to an illegal transaction. But can it be liable on the theory that some of its design features, such as the ability to search for ads by private sellers, especially facilitate crimes? (Under federal law, private sellers, unlike professional gun dealers, don't have to do a background check on their buyers; ads from such sellers might thus be especially useful to felons and others who would fail such a check.)

In Daniel v. Armlist, plaintiffs, the Wisconsin Court of Appeals, and one Justice of the Wisconsin Supreme Court (Ann Walsh Bradley), said the site could indeed be liable for this. But the majority disagreed, and said there was no liability. First, the facts and the plaintiff's theory:

[Plaintiff Yasmeen] Daniel's tort action [for negligence, negligent infliction of emotional distress, civil conspiracy, aiding and abetting tortious conduct, public nuisance, and wrongful death] arose from a mass shooting in a Brookfield, Wisconsin spa that killed four people, including Daniel's mother Zina Daniel Haughton. Daniel alleged that the shooter, Radcliffe Haughton, illegally purchased the firearm after responding to private seller Devin Linn's post on Armslist's firearm advertising website, armslist.com….

We disagree …. [Title] 47 U.S.C. § 230(c)(1) prohibits claims that treat Armslist, an interactive computer service provider, as the publisher or speaker of information posted by a third party on its website. Because all of Daniel's claims for relief require Armslist to be treated as the publisher or speaker of information posted by third parties on armslist.com, her claims are barred by § 230(c)(1)….

Armslist.com is a classified advertising website similar to Craigslist. Prospective sellers may post advertisements for firearms and firearm-related products they wish to sell, prospective buyers may post "want advertisements" describing the firearms they wish to buy. Buyers and sellers may contact one another either through personal contact information they provide on the website, or by using armslist.com's "contact" tool…. [T]here is no allegation that Armslist itself participates in the purchase and sale of firearms beyond allowing users to post and view advertisements and contact information on armslist.com.

According to Daniel's allegations, Radcliffe shopped for the murder weapon exclusively on armslist.com because he recognized that the website's design features made it easier for prohibited purchasers like him to illegally purchase firearms. Armslist.com allows potential buyers to use a "seller" search filter to specify that they want to buy firearms only from private sellers, rather than from federally licensed dealers. Private sellers, as opposed to federally licensed gun dealers, are not required to conduct background checks in Wisconsin. The website also does not require buyers or sellers to create accounts, which encourages anonymity, and displays next to each advertisement whether the account is registered or unregistered.

Armslist.com allows users to flag content for a number of different reasons, including "scam," "miscategorized," and "overpriced," and uses these flags to delete certain posts. However, it does not allow users to flag content as "criminal" or "illegal" and does not take action to delete illegal content. The website contains no restrictions on who may create an account, or who may view or publish firearm advertisements using its website. The website's lack of restrictions allows buyers to avoid state-mandated waiting periods and other requirements. Armslist does not provide private sellers with legal guidance as to federal and state laws governing the sale of firearms.

Daniel's complaint also suggests several simple measures Armslist could have taken in order to reduce the known risk of illegal firearm sales to dangerous prohibited purchasers. Daniel alleges that Armslist could have required buyers to create accounts and provide information such as their name, address, and phone number. In states similar to Wisconsin, where there is online access to an individual's criminal history, Armslist could have required potential buyers to upload their criminal history before their accounts were approved. She alleges Armslist could have allowed users to flag potentially illegal firearm sales. It could have prohibited users from obtaining one another's contact information until Armslist confirmed their legal eligibility to buy and sell firearms. According to the complaint, all these measures would have reduced the risk of firearm sales to persons prohibited from owning a firearm.

Based on all these features and omissions, Daniel's complaint alleges that Armslist knew or should have known that its website would put firearms in the hands of dangerous, prohibited purchasers, and that Armslist specifically designed its website to facilitate illegal transactions….

The court reviewed various § 230 precedents from other jurisdictions, and concluded that Armslist was immune from liability. Under § 230, the court held, Armslist could only be liable under state law for posts on its site to the extent that it actually "develop[ed] the content" of the posts by creating them or at least "materially contribut[ing]" to their illegality—and Armslist did not do so:

The concept of "neutral tools" provides a helpful analytical framework for figuring out whether a website's design features materially contribute to the unlawfulness of third-party content. A "neutral tool" in the CDA context is a feature provided by an interactive computer service provider that can "be utilized for proper or improper purposes." A defendant who provides a neutral tool that is subsequently used by a third party to create unlawful content will generally not be considered to have contributed to the content's unlawfulness.

Examples of such neutral tools include a blank text box for users to describe what they are looking for in a roommate, a rating system that allows consumers to award businesses between one and five stars and write reviews, and a social media website that allows groups to create profile pages and invite members. All of these features can be used for lawful purposes, so the CDA immunizes interactive computer service providers from liability when these neutral tools are used for unlawful purposes.

This is true even when an interactive computer service provider knows, or should know, that its neutral tools are being used for illegal purposes…. [T]he difference between a neutral design feature and the development of unlawful content is the potential for lawful use…. [I]f a website's design features can be used for lawful purposes, the CDA immunizes the website operator from liability when third parties use them for unlawful purposes. …

Daniel's argument is based primarily on the assertion that Armslist's design features make it easier for prohibited purchasers to illegally obtain firearms. She asserts that Armslist should have known, actually knew, or even intended that its website would facilitate illegal firearm sales to dangerous persons…. [But under § 230(c)(1),] the issue is not whether Armslist knew, or should have known, that its site would be used by third parties for illegal purposes. Instead, the issue is whether Armslist was an information content provider [and not solely a platform provider] with respect to Linn's advertisement.

Armslist.com's provision of an advertising forum and the related search functions are all "neutral tools" that can be used for lawful purposes. Sales of firearms by private sellers are lawful in Wisconsin. Further, private sellers in Wisconsin are not required to conduct background checks, and private sales are not subject to any mandatory waiting period. Accordingly, the option to search for offers from private sellers is a tool that may be used for lawful purposes.

The remainder of the design features referenced in Daniel's complaint—lack of a "flag" option for illegal activity, failing to require users to create an account, failure to create restrictions on who may post or view advertisements, and failing to provide sufficient legal guidance to sellers—are voluntary precautions that the CDA permits but does not require. Whether or not Armslist knew illegal content was being posted on its site, it did not materially contribute to the content's illegality.

Daniel attempts to evade the CDA by asserting that creators of armslist.com intended for the website to make illegal firearm sales easier. This is an attempt to distinguish this case from the litany of cases dismissing suits against website operators who failed to screen unlawful content. As the First Circuit has recognized, however, the allegation of intent is "a distinction without a difference" and does not affect CDA immunity….

The one outlier § 230 precedent is J.S. v. Village Voice Media Holdings, LLC (Wash. 2015), but the Wisconsin Supreme Court rejected it:

In J.S., which involved claims against the operator of backpage.com on substantially the same facts as in Jane Doe No. 1 v. Backpage.com, LLC (1st Cir. 2016), the plaintiffs made the same argument as the Jane Doe No. 1 plaintiffs, asserting that backpage.com was deliberately designed to facilitate sex trafficking. The Washington Supreme Court concluded that the plaintiffs' allegation of intent was enough to escape the reach of the CDA…. [But] the Washington Supreme Court ignored the text of the CDA, and the overwhelming majority of cases interpreting it, by inserting an intent exception into § 230(c)(1)….

Sounds right to me. (Disclosure: My students and I filed an amicus brief on the losing side in J.S.)

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61 responses to “Armslist Not Liable for Allowing Searches for Private-Seller Gun Ads

  1. Sounds like the plaintiff, having been unable to ban private sales of firearms, is attempting to prevent those private sellers from letting anyone know they have a firearm for sale. You can’t list them in the local paper, you can’t list them on craigslist or ebay, there pretty much isn’t anywhere to communicate with potential buyers. Armslist and Gunbroker come along and promptly get sued. The ultimate goal is pretty clear.

    Good for the court.

    1. I doubt the Court was really thinking of protecting the right to keep and bear arms as a first priority, but what implications there would be if websites were held liable for the posts or comments of their users.

      1. “what implications there would be if websites were held liable for the posts or comments of their users.”
        We better ask the Reverend – – –

        1. My understanding (God rest his soul) was that the Rev was the death that was the subject of discussion in that autoerotic asphyxiation post on the 29th. 😉

          1. You should be careful, mad_kalak. I have been reliably informed that Prof. Volokh insists on a higher caliber of comment than this.

            1. If that were true, you wouldn’t be here.

              1. ’tis true that Prof. Volokh banned Artie Ray Lee Wayne Jim-Bob Kirkland for being too — was it for being too liberal, or for being too conservative? — well, anyway, the Volokh Conspiracy Censorship Board banned Artie Ray, and has warned Arthur about being liberal inadequately civil, but has not yet banned Arthur.

    2. Which is why we need to make it clear that any lawsuits against the gun industry will be punished with fines and fees very harshly. PLCA and Sec. 230 could not be more clear.

  2. Prof, could you do a post as well about how the Protection of Lawful Commerce in Arms act is being disregarded in CT?

    1. New York and New Jersey disregard the transport provision of FOPA. Why should PLCA be any different?

      1. How many sock puppets do you have? Anyway, I appreciate your comments, even if a bit edgy.

        1. Not sure what you mean, but thanks.

  3. 2nd Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    Judges ignoring that all gun laws are unconstitutional violations of the People’s right to keep and bear Arms.

    These laws would violate a 1st Amendment protection to post ads and a 2A right to sell Arms to other adults.

    1. You seem to think that what is in the constitution has any impact on the US court system.
      Clearly you have confused the rule of law with justice.

      1. Isn’t it somewhere in the penumbras or something?

        1. Not in the penumbras themselves, but the emanations of those penumbras.

  4. As an underlying factual matter, is it actually established that it was illegal for Linn to sell to Haughton? Or is that still merely an allegation by Daniel?

    1. The Wikipedia article on the shooting makes no reference to the killer, (I refuse to call killers “shooters”, I’m a shooter every time I visit the range.) Radcliffe Franklin Haughton, being a prohibited person. But in another account I find that he was temporarily prohibited due to being under a domestic violence injunction.

      In either event, while it would be illegal for Haughton to buy the gun, it would not be illegal for a private citizen to sell him the gun unless they knew of the injunction. People can be under all sorts of injunctions that might prohibit them from owning this or that, and this doesn’t make it illegal for people who aren’t parties to the injunction to sell it to them, or require them to make an effort to confirm the absence of such an injunction before proceeding with the sale.

      For instance, you might be under a court order not to leave town. This wouldn’t make it illegal for a bus company to sell you a ticket and transport you out of town in violation of the order. Just illegal for YOU to board the buss.

      1. I agree that’s the theory behind my question. Has a court actually decided that yet? Your first paragraph where you say “Radcliffe Franklin Haughton, being a prohibited person” implies some of the underlying facts but has a court decided that question yet? Was Linn even charged with making an illegal sale?

        1. That’s the point: It being illegal for you to buy a gun doesn’t make it a crime for somebody else to sell one to you, if they don’t know. So, why would Linn be charged with anything?

  5. “Under federal law, private sellers, unlike professional gun dealers, don’t have to do a background check on their buyers; ads from such sellers might thus be especially useful to felons and others who would fail such a check.”

    Actually, not only does current law not require private sellers to do the required background check, the existing systems in practice make it impossible for a private seller to do the type of background check required under federal law without going through a licensed gun dealer.

    1. That’s intentional, IMO. They wanted to keep gun dealers as a bottleneck for purchases to the maximum extent possible.

      1. Which is why, starting in the Clinton Administration, they made the regulatory burden for FFAs such that there was an enormous, from about 245k in the 1990s to about 50k or so today (though it’s climbing again as I understand it).

        1. Yes. Most gun dealers were working out of their homes. The Clinton administration promulgated a rule requiring that you have a separate place of business in order to have a federal firearms dealer’s licence. No statutory basis for this, as I recall. About 80% of gun dealers, mostly part-time, went out of business.

          Maybe we should petition the Trump administration to reverse that.

          1. It is really not a big enough concern that I would want him to do it and have material against him for a stupid 2020 attack ad. As much gun buying and selling has moved online, with the FFA just a transactional relationship for the NICS check, FFLs these days are more like an ATM rather than a bank teller, so FFL numbers would never jump up to 250k ever again anyway.

            1. A lot of people got FFL’s so that they could buy guns across state lines. That’s what really needs to change. It’s one of those regulations that only slightly made any legal sense back when the government wasn’t admitting that gun ownership really was a civil liberty.

              Since Heller it makes about as much constitutional sense as requiring somebody to be a licensed book store, (I could stop right there!) in order to buy books across state lines.

              1. That is a better idea, Congress could use its power to regulate interstate commerce to make it so a person could buy and sell guns across state lines as long as they passed the federal NICS background check. States with harder restrictions than that federal floor will be pissed, but the sword cuts both ways. Suddenly we’d see liberal states and people be newfound defenders of federalism.

                1. Not happening any time soon, and not just because the Democrats control the House. Too many Republican members are secretly anti-gun for that positive of legislation to pass.

                  “Sue and settle” would be a more likely route to that.

                  1. Well, we can hope that Trump’s coattails bring along the House, and this time they don’t waste a majority on tax cuts nobody cares about.

              2. An FFL also allows you to own/possess full auto firearms. I wonder how many of the 250K were just for that?

                1. “An FFL also allows you to own/possess full auto firearms.”

                  I think that’s a dangerous oversimplification. Here is my understanding (corrections welcome): there are many kinds of FFLs, who can do different things. The most common are 01 (your basic gun store) and 03 (Curio and Relic).

                  Messing around with NFA items requires additional hoops, called ‘SOT class’. So if you have an 07 (Manufacturers) FFL and a Class 2 SOT, you can muck about with NFA items, subject to a myriad of other rules. Or an 01/Class 3, etc.

                  But if Billy at Billy’s Gun Emporium with just a normal 01 FFL license wants a machine gun he has to apply for the tax stamp like anyone else.

                  Again, corrections welcomed. Given the penalties involved, it’s not an area of the law you want to be casual about.

                  1. If I recall correctly, the rule is that you can only purchase full autos made post 1986 without the stamp if you sell to police departments that want them. You can buy “dealer samples.”

                    1. I’ve heard that, too. But you have to be wealthier than I am to actually play around with a machine gun in full auto, even if the gun itself weren’t any more expensive.

                    2. “I’ve heard that, too. But you have to be wealthier than I am to actually play around with a machine gun in full auto”

                      It’s probably significantly less expensive when you can buy ammo at wholesale prices / quantities.

          2. The lack of private seller access to NICS is the real problem. Liberals fought this tooth and nail because the PURPOSE of private sale background checks is to make private sales expensive and inconvenient. Nothing more, nothing less.

            In any case, the interstate handgun sales rule is moronic. At the very least, if a permit from one state is honored by another, there’s no reason a holder shouldn’t be allowed to buy a gun in that state too.

            1. I wasn’t paying attention at the time, but during the creation of the Brady Bill, this (no private access to the NICS) was specifically discussed? Not that I don’t believe you, but do you have a source?

              1. I don’t know about that, but Senator Coburn proposed opening NICS up to private sellers, and the Democrats blocked it on the grounds that it wouldn’t require record keeping. In other words, they want a back-door registry, not background checks.

                1. I remember when the ATF was caught keeping NICS data, makes sense.

                  1. They aren’t supposed to keep the NICS data, but they are explicitly allowed to keep dealer sales records basically forever. This was the reason for requiring private transfers to go through an FFL, not only so the FFL could do the NICS check, but the proposals also required the FFL to keep records on the transfer as if they had sold the gun them selves. And FFL holders are required to keep those records essentially until they die and the ATF can go through them without a warrant at any time.

                    1. They aren’t supposed to keep the NICS data, but what mad_kalak is referring to is that they were caught keeping it anyway. Supposedly for site maintenance purposes, but they were deliberately holding onto it long enough for it to be caught by routine backups and archived.

                      They seem to have stopped after this was exposed.

                      They were also routinely shutting the system down “for maintenance” on the weekends of big gun shows, so that people couldn’t buy guns at them. Once Clinton was out of office, the next administration mysteriously found it possible to maintain the site without doing that.

                    2. I’m not saying they weren’t keeping the NCIS data when they weren’t supposed to.

                      However, the proposals to require private transfers weren’t about the government having the NCIS data. Many if not most of those proposals explicitly required the dealers to keep records on the private transfers as if it was a dealer sale. Those are the records the proposals looking to force all private transfers through a licensed dealer were about.

            2. “Liberals fought this tooth and nail because the PURPOSE of private sale background checks is to make private sales expensive and inconvenient.”

              In point of fact most of the proposals from the gun control advocates were not just about requiring a background check for private transfers (not just sales), but they explicitly required all private transfers to go through a licensed dealer.

              1. Right. Requiring a trip to a store and a payment of $50 (in some places) basically makes private sales untenable. Doubly so for trades as it would require two background checks and transfers.

                1. IIRC, the recent Democratic proposal to mandate background checks for private purchases actually set a floor on what the dealers could charge, not a ceiling.

                  1. Right, which makes absolutely no sense. If the government is going to mandate background checks, they have to be done by the government, for free, at offices that operate 24/7.

                    Where I live now, you can get a private sale background check done for $15, but in some places, it’s $50 or more. The only thing that keeps fees down in many places is that a lot of FFLs (not all) actually treasure the RKBA, and thus only charge a nominal amount that barely is worth their time, out of commitment to the cause.

                    1. Private gun sale background check in my home state is $30.
                      The fee does discourage private sales with a background check.
                      It does not discourage private sales/swaps.

                      Virginia State Police was recently running NICS BG checks for private buyers at Virginia gun shows for less than $5. Check out the fees for states with the Bloomberg Everytown Universal Background Checks. $55? That is a punitive sin tax.

                      I am aware of 1985, 1991, 1997, and 2004 DoJ surveys on large representative samples of prison inmates who carried or used a gun. Google NIJ Firearms Use by Offenders. In the 2004 survey less than 12% acquired guns from commercial sources which would include FFLs. About 44% from family or friends which (includes fellow criminals) and about 44%.
                      from theft, burglary, fences, drug dealers, street dealers, black marketeers and other non-commercial sources. Background checks are hardly a burden on gun criminals.

                2. Not just private trades and sales. A number of the proposal I saw included gifts and temporary transfers.

                  Say you you are an experienced shooter, even a licensed instructor. Your neighbor Bob has a son (18) who wants to learn how to shoot, so Bob asks you to take his son to a range and teach him.

                  That’s a trip to the nearest gun dealer and the $50 fee just to loan Bob’s son one of your guns for the day.

                  1. And another trip to transfer it back.

  6. *enormous decline

  7. A consequence of this decision is that it should be fairly straightforward to create a primarily crime-facilitating website designed specifically for the purpose, as long as a few liability-avoiding features are included strictly for legal purposes. The site has to be able to be used for legal as well as non-legal purposes, and it might be advisable to make sure a few token people, perhaps ones lawyer, actually do so.

    With that done, it should be just as easy to design a site that facilitates, say, racial discrimination or child sex trafficking as it is to design one to facilitate illegal arms sales.

    The fact that intent is irrelevant makes a huge difference. One need only structure things so that illegal purposes aren’t the only possible things to use the site for. One needn’t even put a lot of effort into the cover legitimate business, as long as one has one sufficient for pretense or plausible deniability purposes.

    1. If you tried to run Armslist while requiring your posters to provide their race, you might run afoul of antidiscrimination laws – race is not relevant to buying or selling a gun.

      On the other hand, private sellers frequently provide cheaper prices since retailers charge a fee for even just facilitating, or a profit for their own sales. Additionally, many private sellers don’t know the market value of their goods, or may be more willing to sell low just to get rid of the gun.

      These are all legitimate reasons to have a feature to limit searches to private sellers, above and beyond the common feeling that “The government has no need to know what I’m buying”.

      1. No problem, Toranth. You don’t require users to list race, you just provide a box where they can list race, and let the users do the rest. This doctrine will license a wholesale return to anti-black discrimination in rentals and hiring. I suspect it’s already happening. Around the Boston area, we have radio ads for online hiring applications which lean really heavily on how they give you customization tools to get exactly the applicants you prefer. Absolutely not illegal to say that, right? But what do you think is going to happen?

        I doubt EV has thought this through.

        1. Let’s assume this is true? I say, so what? There’s no moral right to force a landlord to rent to someone he doesn’t want to.

          1. I’m going to sidestep debating this here because whatever your politics, there’s something out there that you agree should be a crime, AND a way to design a crime-facilitating website to facilitate it while still permitting the website to also be used for something legal (what I’m calling the “cover business.”).

            Slavery? Contract murder? There’s got to be something you’d agreed ought to be a crime.

            Whether should be a crime or not, and whether, if it is a crime, crime-facilitating websites should be liable are analytically two separate questions. Similarly what standard should be used to determine whether crime facilitation is direct enough to make web site operators liable is also a separate issue.

            1. “Similarly what standard should be used to determine whether crime facilitation is direct enough”

              “Slavery? Contract murder?”

              The classified adds section of your local print newspaper could be used for those things, should the newspaper be liable for it?

              My standard for when the web site operator can be liable for “facilitation” is if an only if the website operator is actively and explicitly (in plain language, does not include things that LE decides are “code words” for illegal activity) promoting the illegal transactions.

              Backpage, the site that FOSTA was written to shut down, was not only NOT actively promoting human trafficking / involuntary prostitution/underage prostitution ads, they had been actively cooperating with LE to catch the people posting those adds for years before FOSTA was passed.

    2. Good comment, ReaderY.

  8. If this decision stands, before you know it newspapers will be facilitating car crime by publishing classified ads for cars without screening out subscribers who have suspended licenses.

    1. Next time please provide a warning in the first line of posts such as this so I can read them while standing above my fainting couch!

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