A few weeks ago as an afterthought to discussing the Spamhaus amicus filed by Matthew Prince I noted that Spamhaus could potentially take advantage of Section 230 because it provided the "technical means" to restrict access to objectionable content (spam).  A recent unpublished California Court of Appeal decision supported Spamhaus on this point:  Pallorium, Inc. v. Jared, No. G036124, 2007 Cal. App. Unpub. LEXIS 241 (Cal. Ct. App. Jan. 11, 2007). 

Pallorium, Inc. (the plaintiff – the one not aligned with Spamhaus's position) filed a Petition for Review – access the 4074 word pdf here: 

Congress did not assist the public by defining the term "technical means."  The issue before this Court, which seems to be one of first impression, is whether the distribution of a list fits the meaning of the term "technical means."  A review of federal decisional authorities using the term "technical means" suggests that something more than a list is required.

As Pallorium notes, there's not much out there on this issue.  On the one hand, given the structure of section 230 and seemingly lackluster drafting it makes sense to not get overly specific with the term "technical means."  On the other hand, Congress should be held to what it passes.  Why the addition of the word "technical"?  It seems to convey that there are many possible "means" that an immunized entity could make available to block objectionable content – only the "technical" means are off limits under this provision. 

(There's also a separate argument as to whether the blocking was done on the basis of content at all, but I think this misses the mark.  People want to block spam based on its content.  Plain and simple.  If blacklisted domain names are used as a proxy for bad content this should not alter the analysis of whether content is being blocked.)

You can access the Answer to Petition here [pdf].  [Thanks to The Spam Diaries for the pointer.]