From America Online to America, Online: Reassessing Section 230 Immunity in a New Internet Landscape
| Publication year | 2023 |
From America Online to America, Online: Reassessing Section 230 Immunity in a New Internet Landscape
Madeleine E. Blair
University of Georgia School of Law, jwt74222@uga.edu
From America Online to America, Online: Reassessing Section 230 Immunity in a New Internet Landscape
Cover Page Footnote
J.D. Candidate, 2024, University of Georgia School of Law. Sincere thanks to all the friends, family and mentors who offered their support while writing this Note.
[Page 305]
FROM AMERICA ONLINE TO AMERICA, ONLINE: REASSESSING SECTION 230 IMMUNITY IN A NEW INTERNET LANDSCAPE
Madeleine Blair*
[Page 306]
I. Introduction...............................................................................................307
II. Background.................................................................................................308
A. An Overview of Section 230 of the Communications Decency Act.....................................................................................308
B. Responses to Section 230's Immunity Provisions..............309
C. A New Way Around Section 230: The Snap and Omegle Decisions............................................................................................312
III. Analysis..........................................................................................................314
A. Assessing Section 230 In Light of the Snap and Omegle Decisions............................................................................................314
B. Section 230's (Mis) conception of Online Spaces..............315
C. A Way Forward: Synthesizing Snap, Omegle, and Intellectual Property Principles to Reassess Section 230 321
IV. Conclusion...................................................................................................322
[Page 307]
Congress enacted the Communications Decency Act in 1996 to regulate the new world of internet activities and internet providers.1 Section 230 of the Act has garnered recent scrutiny due to a provision that immunizes website providers and tech companies from liability for their users' conduct.2 Because of Section 230, holding online providers directly accountable for online harms has been beyond the reach of private plaintiffs for the better part of the internet's history.3
The first part of this Note discusses Section 230 and the debate surrounding its application. Many parties have attempted to circumvent Section 230's immunity provisions, and two recent successes in that endeavor provide useful insight into the nature of Section 230's drawbacks—and potential solutions.
The second part of this Note examines those two cases, Lemmon v. Snap, Inc.4 and A.M. v. Omegle.com, LLC,5 and diagnoses the shortcomings inherent in Section 230's immunity provisions— namely that the statute's conception of the internet is obsolete and must be discarded.
The final part of this Note identifies in the cases a parallel to intellectual property principles that may prove useful in solving the problems Section 230 creates.
Page 308
A. An Overview of Section 230 of the Communications Decency Act
An understanding of Section 230's function begins with its language. Section 230(a) couches the legal provisions of the statute within a set of sociocultural findings, noting the "extraordinary advance" in information availability provided by "interactive computer services" and the internet.6 Also among these findings is the observation that the internet up until enactment of the statute had "flourished, to the benefit of all Americans, with a minimum of government regulation,"7 and a note about the increasing dependence on "interactive media" for information and entertainment services.8
Section 230(b) further contextualizes the statute by explicitly providing its policy reasoning.9 Taken together, these policy bases lay out a thematic framework based on balancing free speech against consumer and free market protection. Among the notable policy reasons enumerated are the "continued development of the internet and other interactive computer services,"10 "[preservation of] the vibrant and competitive free market . . . for the internet and other interactive computer services,"11 and "[removal of] disincentives" for and "[encouraging] the development of mechanisms which maximize user control over what they see and interact with online.12 In short, Section 230 looks to foster technological development towards maximum user control over content exposure and consumption in a competitive free market of products and progressive ideas.
Section 230's substantive provisions begin with its most problematic, and most hotly debated, statutory language. Section 230(c)(1) provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."13 Courts have interpreted this broadly, essentially providing blanket civil immunity to any website or online service housing user-generated
[Page 309]
content against any action stemming from that content or its effects. 14 Under this broader interpretation, online providers' immunity has stood fast against direct attacks no matter how openly or on what scale the online platform has played venue to harassment or predatory behavior.15
B. Responses to Section 230's Immunity Provisions
Resistance to Section 230 has come from both sides of the political aisle, although for different reasons.16 On the right, much of the push for Section 230 reform stems from concerns that the statute does not adequately preserve free political speech online.17 House Republicans, for example, have taken aim at large tech companies' Section 230 immunity, citing undue user censorship.18 Figures such as Florida governor Ron DeSantis and Texas attorney general Ken Paxton made similar bids for reform at the state level.19
Across these efforts runs a specific concern from right-wing figures that "Big Tech" is censoring and de-platforming users based on political affiliations.20 These censored views typically dovetail into right-wing ideologies,
[Page 310]
one example being the "conservative activist group Project Veritas," whose accounts Twitter suspended in 2021.21
A secondary concern for Section 230's conservative critics lies in the safety and security of children online, as well as the statute's failure to combat sex trafficking.22 The two-prong approach often uses this failure as a contrast point against the censorship of political affiliation. According to Republican Study Chairman and Indiana congressional representative Jim Banks, for example, Donald Trump's social media suspension was as much a symptom of Section 230's flaws as the "blind eye" those same sites supposedly turned to child pornography.23 in a similar vein, Trump himself issued an executive order aiming to block certain operations of Section 230.24
Where the political right believes Section 230 is so restrictive as to enable undue censorship, the political left sees the statute as excessively permissive. Liberal politicians have construed the statute as lacking a meaningful preventive mechanism against hate speech and disinformation.25 The left has also pointed to recurrent incidents of cyberbullying, violent extremism, and online harassment as evidence of Section 230 immunity's overbreadth.26
Like their conservative counterparts, liberal members of Congress have attempted to pass bills that address their concerns by limiting Section 230
[Page 311]
immunity.27 Partisan parallels also extend to the executive branch: President Joe Biden has expressed his strong dislike for the statute based on its allowances for the widespread distribution of falsehoods,28 though he has yet to officially issue an executive order on the subject.
As for tech companies themselves, Silicon Valley's biggest players have generally aligned with the left's view of Section 230 when expressing any discontent with the statute.29 Particularly, Meta CEO Mark Zuckerberg has expressed an openness to altering the immunity provision.30 Outside of the heaviest hitters, however, many online service providers including Pinterest and Reddit are actively lobbying to prevent Section 230 reform.31
Congress has made some bipartisan efforts in recent years to alter Section 230's immunity provisions. One such effort was the Fight Online Sex Trafficking Act ("FOSTA"),32 which aimed to combat online sex trafficking by limiting immunity for sites where such trafficking occurred.33 Two years after FOSTA's 2018 enactment, a bipartisan congressional group introduced the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act ("EARN IT"),34 which sought to reduce child exploitation online through a similar methodology to FOSTA.35 These efforts, however, have not generated widespread
[Page 312]
improvement by either party's measures,36 and Section 230's immunity clause remains an incredibly broad shield mechanism for all kinds of online entities.
C. A New Way Around Section 230: The Snap and Omegle Decisions
While Section 230 significantly hinders individuals' private rights of action against online service providers, it does not entirely foreclose the possibility of provider liability. Demonstrating this fact, recent cases have found a new way to circumvent Section 230 immunity: products liability. Two cases in particular, Lemmon v. Snap, Inc. and A.M. v. Omegle.com, LLC ("Snap" and "Omegle", respectively), exemplify the direction Section 230 is pushing plaintiffs.
Snap, the earlier of the two decisions, concerned the death of two teenage boys involved in a high-speed driving accident.37 In a wrongful death action on behalf of their children, the boys' parents alleged a design defect in the Snapchat app.38 They argued that the speedometer feature of the app, which showed the speed the user was traveling, encouraged reckless driving via an in-app reward for those who clocked in at a...
To continue reading
Request your trial