Rethinking the Communications Decency Act: eliminating statutory protections of discriminatory housing advertisements on the Internet.

• Author: Shanahan, James D.

1. INTRODUCTION II. THE COMMUNICATIONS DECENCY ACT A. Pre-CDA B. CDA as Congressional Response C. The CDA and the Internet III. THE FAIR HOUSING ACT IV. CRAIGSLIST A. Decision B. Life After Craigslist V. SUGGESTED CONGRESSIONAL RESPONSE VI. CONCLUSION I. INTRODUCTION

   Congress passed the Communications Decency Act ("CDA") with the intention of supporting and encouraging the proliferation of information on the Internet. (1) The CDA gives Internet service providers immunity to any cause of action in which they might be treated as publishers of content originating from third parties. A significant goal of this legislation was to remove such operators' disincentives to voluntarily provide mechanisms to police the content on their Web sites.

   The 1968 Fair [lousing Act ("FHA") protects the supply of housing for those who may otherwise be discriminated against and functions to reduce overall discrimination in the housing market. (2) The plain language of the statute indicates that it is intended to prevent newspapers and other publishing media from publishing classified advertisements that mention statutorily proscribed preferences in the sale or rental of a dwelling. The FHA holds publishers of discriminatory advertisements legally responsible for content provided by third parties.

   The recent ruling in Chicago Lawyers' Commission for Civil Rights Under the Law, Inc., v. Craigslist, Inc. renews past criticisms of the CDA and foreshadows the unexpected yet nebulous marginalization of the FHA. (3) As individuals seeking to advertise continue to migrate exponentially from traditional print media to Internet bulletin boards and online classified sections, the protections from discriminatory advertisements provided by the FHA will be completely eroded.

   This Note argues that Congress should add the FHA to the list of exceptions to CDA immunity and is organized as follows: Section II is a review of the history of the CDA and the application of [section] 230 immunity during the rapid growth of Internet services; Section III discusses relevant sections of the FHA dealing with housing advertisements; Section IV provides a review and commentary on the recent decision in Craigslist; Section V recommends congressional action; and Section VI concludes the Note.

2. THE COMMUNICATIONS DECENCY ACT

   1. Pre-CDA

      In 1995, Stratton Oakmont, inc., a securities investment firm, brought a defamation suit against Prodigy Services, an Internet company that operated an online bulletin board. (4) An unidentified user of the online bulletin board accused Stratton of criminal and fraudulent acts in connection with an Initial Public Offering ("IPO"). The major issue facing the court was whether Prodigy was the "publisher" of the third party information. (5)

      Stratton argued that Prodigy qualified as the publisher of the defamatory statements found on the online posting because the company exercised editorial control over the forum. They further advocated that Prodigy was liable for the damages resulting from the defamatory statements under common law. (6) In contrast, Prodigy relied on the language from an earlier defamation case where an analogous defendant was treated as "a public library, book store, or newsstand," and not as the publisher of defamatory statements posted by a third party. (7)

      The language on which Prodigy relies is found in an earlier case, Cubby, Inc. v. CompuServe, Inc. In that case, the defendant, CompuServe, operated an online general information service and provided access to a variety of forums for its subscribers. (8) Subscribers had access through a journalism forum to Rumorville USA, a daily newsletter covering developments in the world of journalism. (9) Cubby developed a similar newsletter intended to compete with Rumorville. After the new service was launched, false and defamatory statements regarding the Cubby newsletter were published in Rumorville. (10)

      Cubby brought suit against CompuServe seeking damages for the allegedly defamatory statements. The district court granted summary judgment on the libel claim in favor of CompuServe. The court treated the defendant as a news distributor and held that it "may not be held liable if it neither knew nor had reason to know of the allegedly defamatory Rumorville statements." (11) Based on this holding, Prodigy hoped for the same judicial protection.

      Unfortunately for Prodigy, the court distinguished the earlier claim in Cubby and held that the services it offered qualified the Internet service provider as a publisher. (12) Prodigy, unlike CompuServe, "implemented ... control through its automatic software screening program." (13) It was Prodigy's affirmative action to police or attempt to control content published on its Web site that gave rise to this tort liability. The stark difference between rulings in Cubby and Stratton created the perverse incentive for providers of interactive computer services to keep away from policing third party content in order to avoid liability. Under Stratton, any attempts to monitor the hundreds of thousands of postings could potentially lead to liability for claims in which being defined as a "publisher" is an essential element.

   2. CDA as Congressional Response

      Following the holding in Stratton, Congress was quick to respond. The congressional solution to the dilemma was the Communications Decency Act of 1996. (14) The CDA overruled Stratton and removed the deterrent to "Good Samaritan" blocking. (15) The CDA is meant to further two important policies: to remove the disincentive to police content and to encourage the dissemination of words and ideas on the Internet. The portion of the CDA that has been codified in [section] 230 is the most essential for the purposes of this Note, and it demonstrates congressional intent to further both of these policies.

      The CDA establishes that it is the policy of the United States to "remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their childrens' access to objectionable or inappropriate online material." (16) In fact, as the name suggests, one of the primary purposes of the CDA is "to control the exposure of minors to indecent material." (17) It is [section] 230(c)(1) that eliminates the disincentive to utilize such technologies. This section provides that "no 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." (18)

      The second central policy of the CDA is the preservation of "the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation." (19) Congress, in its findings, commented that "the Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation." (20) Americans are increasingly "relying on interactive media for a variety of political, educational, cultural, and entertainment services." (21) This second objective of the CDA is meant to "avoid the chilling effect upon Internet free speech that would be occasioned by the imposition of ... liability upon companies that do not create potentially harmful messages but are simply intermediaries for their delivery." (22)

      It is the second objective that seems to have been given the most deference in the subsequent case law. The legislature has recognized that the "developing array of Internet and other interactive computer services available ... represent an extraordinary advance in the availability of ... information resources." (23) Immunity under the CDA is essential to the proliferation of information on the Internet because it protects those channels through which such information is supplied. However, this immunity is not absolute. Namely, there are three elements that are required for immunity under the CDA: the defendant must be a provider or user of an "interactive computer service," (24) the asserted claims must treat the defendant as a publisher or speaker of the information, and the information must be provided by another "information content provider." (25) Finally, by specific statutory exclusion, certain causes of action are not proscribed. (26)

   3. The CDA and the Internet

      Internet service providers are treated differently from corresponding publishers in print, television, and radio. (27) This is the result of a congressional realization that civil, primarily tort-based, lawsuits pose a significant threat to the spread of words and ideas in the "new and burgeoning Internet medium." (28)

      One reason that Internet service providers are treated differently is that it is impossible for many of them to screen every posting, police every forum, or monitor all of the content generated by the millions of regular users. (29) "Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted." (30) The policy language of [section] 230 indicates that Congress considered the speech interests implicated by the imposition of liability and determined that immunity for these providers was a solution that would encourage, rather than mute, the development of the Internet.

      Any lawsuit that holds an Internet service provider out as a publisher is prohibited by the statute. "Specifically, Section 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role." (31) Traditional functions of a publisher include decisions "whether to publish, withdraw, postpone or alter content." (32) Additionally, this immunity extends to an Internet service provider that holds itself out as reserving the right to exercise editorial functions, or utilizes terms or conditions in the provision of Internet access. (33)

      While the plain...