CDA Section 230: An Indecent Compromise

The Precap:

  1. CDA Section 230 provides that internet service providers and website operators can not be held liable for content originating with a third-party.
  2. This protection has encouraged free speech and innovation because it allows online providers like social networks, blogging platforms, review sites and even search engines to distribute, host, or locate speech created by others without fear that they could be held liable for the content of that speech.
  3. However, exempting online providers from liability for content created by a third-party has also created a legal haven where websites proliferating revenge porn, malicious gossip, and ads for prostitution can not only host this content with impunity, but profit from its existence.
  4. Section 230 should be amended to exclude websites that are specifically designed to encourage or induce the development or distribution of illegal content or speech that bullies, harasses or defames other private citizens. This standard can preserve free speech and online innovation, while also restricting web operators’ ability to harm others by exploiting Section 230’s protection.

Perhaps no law exemplifies the struggle to find an appropriate balance between free speech, privacy, and innovation more than Section 230 of the Communications Decency Act.

Providing that internet service providers and website operators can not be held liable for content originating with a third-party, CDA Section 230 helps assure that free speech & the free flow of information continue uninhibited online by allowing content hosts, blogging platforms, and social networks to host user-generated content without fear of crushing liability. A measure that has become all the more important in an era where online media is replacing print publications and social networks reign supreme, Section 230 has played such a vital role in the creation of the robust online communities which we engage with today that it is commonly championed as the“cornerstone of Internet freedom.”

However, a champion not without an achilles heel, the protection for which Section 230 receives its acclaim has also proven to be ripe for exploit. In providing ISPs and website operators with what is characterized as an immunity from liability for the acts of its users, it has become increasingly clear to the likes of revenge porn king Hunter Moore that websites need only take a hands-off approach to developing their content to be free from all derivative liability. Able to be used as a safe harbor for websites that choose to provide a forum for harassing and defamatory material, Section 230 has begun to garner the Communication Decency Act’s title more jeers than cheers, and victims left without any way to repair or protect their reputation are demanding reform.

Despite the fact that these demands are neither new, nor novel, progress towards amending Section 230 is all but nonexistent because a coalition of opponents to reform ranging from the ACLU to a who’s-who of internet leaders (Amazon, eBay, Facebook, Google, Yahoo, etc.) have successfully framed any attempt to limit its heralded protection as a threat to the continued existence of the internet itself. Yet, in one hand desiring innovation, and in the other resistant to change, I do not think that these internet exceptionalists should have it both ways.

Currently amounting to a legislative compromise of our right to be free from harassment and defamation in exchange for unfettered protection of innovation and our freedom of expression, it is time to revisit the negotiating table and challenge the status quo. I believe CDA Section 230 can be structured in a way to protect free speech and innovation, while also providing society an avenue to repair and prevent the harms caused by our country’s more nefarious web operators. However, before I explain how that is possible, I want to briefly explain why Section 230 is so essential to the internet’s operation and also how it has left many victims feeling helpless.

Our Internet, Absent Immunity

To see why ISPs and web operators need to receive some level of immunity from liability for third-party content, it is important to understand that the Internet is built upon hundreds to thousands of privately-owned intermediaries that enables persons to communicate and share information. Search engines like Google and Bing serve as an intermediary that enable us to locate and access content created by a third party relating to a search query. Blogging platforms like WordPress and Medium serve as an intermediary that provide writers a publishing platform that enables them to share their views on just about any topic. Social networks like Facebook and Twitter serve as an intermediary that enables billions of people to connect with each other across the world. At their core, each of these online intermediaries acts as a conduit that either distributes, hosts, or locates content created by others.

Once the Internet is properly viewed as a network of these intermediaries, it is easier to grasp why opponents say limiting Section 230’s protection can jeopardize innovation and free speech: social networks, blogging platforms, and even search engines would likely not be able to exist or operate as they do today if operators of these intermediaries risked liability every time they distributed, hosted, or located content provided by others. This is because repealing intermediary immunity can be expected to produce the following effects:

  1. Innovative communication & information platforms like Facebook and Wikipedia will not be created because developing them would subject their operators to an enormous amount of liability simply due to the sheer volume and diversity of information that passes through their servers.
  2. Any website still willing to host user-generated content will be required to engage in an expensive and time-consuming system to review each user submission that will severely restrict the amount and variety of content they can make available.
  3. Free speech on the internet will be strictly circumscribed by ISPs and web operators who avoid liability by limiting opportunities for open dialogue and censoring any controversial material.

While far from an exhaustive list of the impact Section 230 has on fostering the online environment we interact with today, the foregoing is meant merely to show you what’s at stake in amending Section 230.

The Knock Against CDA Section 230

The problem with Section 230 is that courts have interpreted its provision of immunity in such a way that, once it is determined that the website is a provider of an “interactive computer service” (a bar set so low that any website accepting user submissions can qualify) and that the content at issue was provided by a third party, the court will grant immunity regardless of whether the website’s operator chooses to take it down. This broad immunity has created a legal haven where websites can not only host this content with impunity, but profit from its existence as if defamation of others were a business.

Making the problem worse, courts generally will not find that a website had any role in developing content even if the website actively encourages users to post illegal content or outrageous claims on their website. A vexing conclusion in which I can find no saving grace, this is why an online classified ads website like Backpage can generate $25 million in annual revenue by creating an “adult” ads section that authorities know is used to facilitate underage prostitution. This is also why operators of revenge porn websites are not subject to suits for invasion of privacy when they encourage users to post nude photos of ex-spouses along with links to their Facebook profiles and contact information.

Left free to solicit users to post objectionable material in a forum that it creates, websites trafficking in this content are leaving scores of victims in their wake. Although victims may still hold the persons posting this content responsible, victims generally don’t know how to unmask the typically anonymous poster’s identity and often don’t have the money to hire a lawyer to guide them in subpoenaing a website’s user-IP records (which sites can also decide not to keep). As a result, victims who have unwillingly had false and/or private information broadcasted to millions over the internet often express feelings of helplessness because they find themselves in a situation without any effective legal remedy–where the individual who originally supplied the material cannot be identified, the website who solicited and hosts it cannot be sued, and there is no right to demand that it be taken down.

A Tailored Solution

As I seek to understand the extent to which I accept or reject the compromise Congress made by enacting CDA Section 230, I find myself returning to ask the same, single question: how is that we are permitted to criminalize a specific conduct (like prostitution or revenge porn) while we immunize those that facilitate its very occurrence? Commentators suggest that the answer lies in balancing the harm caused against the cost of deterring it. And I agree that the answer is one of proper distribution. However, now that 15 years have passed since Section 230’s enactment, I think the Internet has changed so much that the scale is unnecessarily tipped the wrong way.

In order to restore balance and stop injustice, the scope of Section 230’s protection should be reconfigured so as to exclude websites that are specifically designed to encourage or induce the development or distribution of illegal content or speech that bullies, harasses or defames other private citizens. By allowing claims to proceed against websites that meet this standard, Section 230 can duck the black eyes it has received for protecting these operators at the expense of its victims, while also retaining the assurances it’s protection from liability uses to foster an environment of innovation. That is because, by allowing courts to infer that, for example, a website with a tagline “Get Revenge! Naked Pics of Your Ex” was created to solicit revenge porn, the same type of material–be it nude photos, defamatory statements, or prostitution ads–will be actionable against a website like UGotPosted, but not against a neutral intermediary like Google or Twitter. Moreover, by limiting the scope of liability for speech to that concerning private citizens, this will also ensure that gossip blogs covering celebrities and other public figures will not be unjustly ensnared.

While many opponents of reform will undoubtedly say that I am pointing the finger at the wrong person when seeking to hold these websites liable, I think that these opponents are just not pointing enough. A man blessed with ten digits, I still point a finger at the original posters to hold them accountable for their actions, but I also simply refuse to not point another finger at these websites’ role in the outcome based on reasoning like “you don’t blame Ford because that was the getaway car in a bank robbery and you don’t blame AT&T because the extortion call was made via an AT&T phone line.” While proper analogies for say the likes of Facebook or WordPress, a more suitable analogy for websites soliciting illegal and injurious content would be that of handing a robber a loaded gun and looking the other way.

AJ Afkari | techlawgic

A.J. Afkari is a Los Angeles attorney who specializes in legal matters related to the Internet, technology, and all things intertwined. He received his B.A. from UCLA, his J.D. from USC, and his A.J. from his mother.

1 Comment Leave a reply

  1. Jonathan Smyth

    Section 230 doesn’t provide blanket immunity, and the ways in which revenge porn hosts distribute content typically bar immunity; creating any exception, however narrow, to Section 230 is a horrible idea.

    Reply

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CDA Section 230: An Indecent Compromise | techlawgic
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