The never-ending limits of (section) 230: extending ISP immunity to the sexual exploitation of children.

• Author: Noeth, Katy
• Position: Internet service providers

1. SECTION 230 IMMUNITY A. Congress's Intent in Enacting [section] 230 B. The Seminal [section] 230 Case and Its Enduring Effects II. A CASE FOR CHANGING THE [section] 230 LEGAL REGIME TO PROTECT MINORS ONLINE A. The Current State of the Law Under [section] 230 B. A Multi-Faceted Approach III. FOUR WAYS TO CURB THE EXTENSION OF [section] 230 IMMUNITY IN CASES WHERE ISPS KNOWINGLY ALLOW THE SEXUAL EXPLOITATION OF CHILDREN ON THEIR SITES A. A Congressional Amendment to [section] 230 B. Courts Should Distinguish Zeran and Refuse to Apply its Defamation Rationale to Child Sexual Exploitation Claims C. Courts Should Recognize that Extending Immunity to ISPs in Child Sexual Exploitation Cases Produces a Result that is Inconsistent with the Original Policy Objectives of Congress in Enacting [section] 230 1. Imposing the Proposed Liability Will Not Squelch the Growth of the Interact or Create Disincentives for Its Development 2. Imposing the Proposed Liability Will Not Result in an Infeasible Policing of the Internet 3. Imposing the Proposed Liability Will Not Inundate the ISPs with Lawsuits D. Courts Should Not Extend [section] 230 Immunity to a Civil Claim Based on a Violation off [section] 2252A " 1. The Exception to [section] 230 Immunity Provided by [section] 230(e)(1) and Title 18 U.S.C. [section] 2252A 2. Plaintiffs' Unsuccessful Attempt in Doe v. Bates to Bring a Civil Claim Under [section] 230 Based on an Alleged Violation of Title 18 U.S.C. [section] 2252A IV. CONCLUSION I. SECTION 230 IMMUNITY

   Minors are not safe on the Internet under the current legal regime. Society's obligation to protect its children from sexual predators, wherever they operate, (1) has been hindered by recent judicial determinations, which have held that certain Internet sites are not liable for failing to protect minors from sexual exploitation (2) or assault. (3) These judicial interpretations have rendered Internet Service Providers (ISPs) virtually judgment proof even when they knowingly allow the sexual exploitation of children on their sites.

   Section 230 of the Communications Decency Act (CDA) provides immunity (4) to ISPs. (5) It bars claims against ISPs based on the publication of third-party content. Defendants are immune from liability from state law claims if:

   (1) [They are] a "provider or user of an interactive computer service";

   (2) the claim is based on "information provided by another information content provider"; and (3) the claim would treat [the Defendants] "as publisher or speaker" of that information. (6)

   There is, however, an exception to this immunity given in [section] 230(e). (7) It provides: "[n]othing in this section shall be construed to impair the enforcement of section 223 or 231 of this Act, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, United States Code, or any other Federal criminal statute." (8)

   If civil liability is imposed on Web sites such as Yahoo!, [section] 230 immunity provides that it must be imposed on the individual posters of content. (9) Courts have typically held that [section] 230 grants ISPs complete immunity from both publisher and distributor liability. (10) As a result, ISPs including Web sites such as Yahoo!, Google, and MySpace enjoy a "robust" immunity from civil liability under [section] 230 of the CDA. (11) The extension of CDA immunity under [section] 230 in recent judicial decisions has served to protect ISPs at the expense of the safety of minors. Courts have missed an opportunity to finally curb the extension of [section] 230 immunity, and instead, further extended immunity to ISPs who knowingly violate criminal law. As a result, the so-called "decency act" has "been transformed from an appropriate shield into a sword of harm and extreme danger which places technology buzz words and economic considerations above the safety and general welfare of our people." (12)

   Under this Note's proposed changes, ISPs such as Yahoo! should be held liable for knowingly allowing the sexual exploitation of children on their sites. This Note will discuss the background of [section] 230 immunity and several recent judicial developments. It will then explain why a change to the current law is needed and how to effectuate such a change.

   1. Congress's Intent in Enacting [section] 230

      The legislative purpose behind enacting [section] 230 in 1996 was to ensure that the threat of litigation would not discourage the growth and development of the Internet and other online services. (13) The legislative history surrounding Congress's creation of [section] 230 reflects the desire to protect online intermediaries from liability for unlawful third-party content. (14) Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect. (15) Congress found that:

      (1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.

      (2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.

      (3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

      (4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.

      (5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services. (16)

      Congress reasoned that any liability would threaten development of the online industry as a medium for new forms of mass communication and would simultaneously create disincentives for self-regulation by service providers. (17) Congress enacted [section] 230 to prevent this unwanted result.

   2. The Seminal [section] 230 Case and Its Enduring Effects

      The seminal case on [section] 230 immunity is Zeran v. America Online, Inc. (18) The case arose when America Online (AOL) failed to remove a defamatory posting on its site. (19) The plaintiff, Zeran, contended that once he had notified AOL of the defamatory posting, AOL had a "duty to remove the defamatory posting promptly, to notify its subscribers of the message's false nature, and to effectively screen future defamatory material." (20) The Fourth Circuit Court of Appeals disagreed with Zeran and found that [section] 230 barred his claim. (21)

      The court held that [section] 230 "creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." (22) It explained that, "both the negligent communication of a defamatory statement and the failure to remove such a statement when first communicated by another party ... constitute publication." (23) In so finding, the Fourth Circuit extended [section] 230 immunity to ISPs (here, AOL) that failed to withdraw content despite having prior notice of the content's unlawful nature. (24) The court reasoned that the decision to publish, withdraw, postpone, or alter content is a traditional editorial function of a publisher, the exercise of which cannot be a basis for liability under the CDA. (25)

      This rationale has endured and has played a critical role in courts' decisions in subsequent CDA cases. Courts have extended the Zeran court's rationale for granting immunity to non-defamation claims related to the publication of third-party content and the harms resulting from such publication. (26) As a result of these courts' decisions, ISPs have "no obligation to remove tortious materials, to prevent the reposting of objectionable materials, or to help victims track down the primary wrongdoers." (27) The effect of these expansive judicial interpretations of [section] 230 "has been the emergence of a comprehensive immunity from suit for ISPs so long as the suits are based on content not authored by the ISP." (28) In sum, the "judiciary's inflated interpretation of [section] 230 has created a legal environment that is ideal for injury and difficult for redress." (29) The end result is that courts have expanded [section] 230 to immunize ISPs from virtually every tort action. (30)

2. A CASE FOR CHANGING THE [section] 230 LEGAL REGIME TO PROTECT MINORS ONLINE

   1. The Current State of the Law Under [section] 230

      The trend of broadening [section] 230 immunity continues in a new line of cases. The heart of the plaintiffs' claims in each ease is the protection of minors. (31) Protecting ISPs' freedom on the Internet has reached a high point with several recent court decisions, each finding that [section] 230 shields an ISP from civil liability regardless of whether it attempted to remove the offending material or whether it knew the material existed on its site. (32)

      In December 2006, U.S. District Judge David Folsom decided the ease Doe v. Bates, (33) consistent with Magistrate Judge Caroline Craven's recommendation. The decision extended the immunity of [section] 230 so that Yahoo! could not be sued for knowingly profiting from a site where members exchanged sexually explicit photos of minors. (34) In this case, a young boy's photographs were featured on an illegal pornography e-group (35) called Candyman that was hosted and operated by Yahoo!. (36) The Candyman e-group allowed members to exchange messages and was "a forum for sharing, posting, e-mailing, and transmitting hard-core, illegal child pornography." (37) The plaintiffs (the parents of the child) alleged that Yahoo! knowingly hosted illegal child pornography on its e-group and they contended that it should have prevented, removed, and/or blocked the illegal child pornography from its Web...