Federal courts have held for decades that interactive computer services cannot be considered publishers for the purpose of determining liability to users for content published by third parties. This area of the law was developed in the infancy of the internet, and technology has advanced leaps and bounds faster than the law has.

The relevant statute in these cases is 47 U.S.C. § 230 (the Communications Decency Act of 1996), which states that “no provider or use of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In lay terms, online media platforms (think YouTube, Facebook, Twitter, etc.) that host content created and/or shared by third-party users cannot be held liable unless the provider is directly responsible for creating it.

In 2015, the Supreme Court reviewed the case of Michael Kingsley, a pretrial detainee who suffered a brutal assault at the hands of his jailers and sued them for using excessive force in violation of his rights. The Court held in Kingsley v. Hendrickson that claims of excessive force against a pretrial detainee must be evaluated against an objective standard. This means that when a court is determining whether excessive force is used, it must do so from the point of view of the reasonable officer who was present at the time (as opposed to the perspective of the specific officer involved). The Court explained that “the Due Process Clause protects pretrial detainees from excessive force that amounts to punishment,” which can occur when the force at issue is not “reasonably related to the legitimate purpose of holding detainees for trial.”

The 6th Circuit granted habeas relief on the grounds that the Michigan State Court did not show that the shackling did not have a substantial and injurious effect on the jury’s verdict. In doing so, they applied the Brecht test, but not the AEDPA examination of whether the state court’s decision was based on an unreasonable determination of the facts.

What is the appropriate standard of review for a federal court deciding whether to grant habeas relief?

Federal courts have long avoided reading statutes as applicable on foreign soil, except when Congress clearly indicates as such, by using the canon of statutory interpretation known as the presumption against extraterritoriality. Some courts, however, have used a 1922 Supreme Court decision, United States v. Bowman, to justify applying § 1114 outside American borders.

Can 18 USC § 1114 criminalize killing or attempting to kill an officer or employee of the United States outside the territory of the United States?

The Telephone Consumer Protection Act (TCPA) was passed in 1991 to regulate the emerging practice of telemarketing, in which an automatic dialing system or prerecorded voice makes automatic calls to consumers to market products or services. The TCPA also regulates other forms of electronic communication, such as through text messaging and faxing.

Does a defendant have Article III standing under the Telephone Consumer Protection Act even if the alleged injury is a single text message?