Flawed but fixable: section 230 of the Communications Decency Act at 20.

• Jurisdiction: United States
• Author: Bolson, Andrew P.
• Date: 22 March 2016

1. INTRODUCTION II. ORIGINS OF SECTION 230 OF THE COMMUNICATION DECENCY ACT III. IMPLICATIONS OF SECTION 230 OF THE COMMUNICATIONS DECENCY ACT IV. PROPOSALS TO FIX SECTION 230 V. CONCLUSION I. INTRODUCTION

   2016 marks the twentieth anniversary of Section 230 of the Communications Decency Act ("CDA"), one of the most significant and controversial laws of the Internet Age. (1) This law has profoundly shaped the landscape of the Internet by offering liability protection to websites for the third-party content posted on their sites. The goal of the law was to protect the public's interest in monitoring, blocking, and screening objectionable content on the Internet while ensuring that Internet companies would grow without burdensome regulation and the fear of constant litigation.

   Much has changed since Section 230 became law in 1996. It is hard to believe, but in 1996 there were only approximately 77.5 million Internet users and 257,500 websites in the world. (2) As of 2014, the Internet has grown to nearly 3 billion users and 1 billion websites. (3) Once the frontier of technology, the Internet now facilitates and empowers our interconnected society. While the Internet has evolved, Section 230 has not.

   This article examines Section 230 of the Communication Decency Act's origins, its significant implications, and provides several proposals on how to fix some of the flaws in the existing statutory framework.

2. ORIGINS OF SECTION 230 OF THE COMMUNICATION DECENCY ACT

   Section 230 of the CDA reads, in part, as follows:

   (a) Findings. The Congress finds the following:

   (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.

   (b) Policy. It is the policy of the United States--

   (1) to promote the continued development of the Internet and other interactive computer devices and other interactive media;

   (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

   (3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;

   (4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material; and

   (5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

   (c) Protection for "Good Samaritan" blocking and screening of offensive material.

   (1) Treatment of publisher or speaker. 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.

   (2) Civil liability. No provider or user of an interactive computer service shall be held liable on account of--

   (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

   (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1) [subparagraph (A)]. (4)

   Section 230 was born out of a response to a Supreme Court of New York decision issued on May 24, 1995.5 In Stratton Oakmont, a securities investment-banking firm sued Prodigy Services Company for statements posted on Prodigy's "Money Talk" computer bulletin board. (6) The statements included the following:

   (a) Stratton Oakmont, Inc. ("Stratton"), a securities investment banking firm, and Daniel Porush, Stratton's president, committed criminal and fraudulent acts in connection with the initial public offering of stock of Solomon-Page Ltd.;

   (b) The Solomon-Page was a "major criminal fraud" and " 100% criminal fraud";

   (c) Porush was "soon to be proven criminal"; and

   (d) Stratton was a "cult of brokers who either lie for a living or get fired." (7)

   The court analyzed Prodigy's liability vis-a-vis the editorial control that Prodigy exercised over the content posted on its site. (8) According to the court, "Prodigy held itself out to the public and its members as controlling the content of its computer bulletin boards." (9) In addition, the court noted that,

   Prodigy implemented this control through its automatic software screening program, and the Guidelines which Board Leaders are required to enforce. By actively utilizing technology and manpower to delete notes from its computer bulletin boards on the basis of offensiveness and 'bad taste', for example, Prodigy is clearly making decisions as to content, and such decisions constitute editorial control. (10) The court determined that Prodigy's conscious decision to exercise editorial control over third-party content opened the company to greater liability as a publisher. (11)

   The Stratton Oakmont decision marked a departure from existing precedent established in Cubby, Inc. v. CompuServe, Inc., which held that liability for online distributors would be no different than traditional content distributors, such as "news vendors, book stores, and libraries." (12) In Cubby, CompuServe was sued for allegedly defamatory statements that were published on a forum available through its online service, Rumorville. (13) Traditionally, liability for content distributors applied only if the content distributor knew or had reason to know of the allegedly defamatory statements that it distributed. (14) Applying these traditional principles, the court found that because CompuServe had no knowledge of or reason to know of the allegedly defamatory statements, it was not liable for any statements posted on its site. (15)

   By refusing to follow Cubby's precedent, the Stratton Oakmont decision opened the door for online content distributor liability based upon the level of the distributor's editorial control of the material posted on their websites or online forums. (16) The potential for distributor liability imposed by Stratton Oakmont raised concerns that Internet companies would stop monitoring content in order to avoid potential liability. (17) To alleviate this concern, Representatives Christopher Cox and Ron Wyden sponsored a bill entitled, "Protection for Private Blocking and Screening of Offensive Material." (18) Barely two months after Stratton Oakmont was decided, on August 4, 1995, Congressman Cox spoke on the floor of the House of Representatives and provided his rationale for the legislation that would eventually become Section 230.19 Congressman Cox stated:

   Mr. Chairman, I wish to begin by thanking my colleague, the gentleman from Oregon [Mr. Wyden], who has worked so hard and so diligently on this effort with all of our colleagues. We are talking about the Internet now, not about television or radios, not about cable TV, not about broadcasting, but in technological terms and historical terms an absolutely brand-new technology. The Internet is a fascinating place and many of us have recently become acquainted with all that it holds for us in terms of education and political discourse. We want to make sure that everyone in America has an open invitation and feels welcome to participate in the Internet. But as you know, there is some reason for people to be wary because, as a Time Magazine cover story recently highlighted, there is in this vast world of computer information, a literal computer library, some offensive material, some things in the bookstore, if you will, that our children ought not to see. As a parent of two, I want to make sure that my children have access to this future and that I do not have to worry about what they might be running into on line. I would like to keep that out of my house and off my computer. How should we do this? Some have suggested, Mr. Chairman, that we take the Federal Communications Commission and turn it into the Federal Computer Commission, that we hire even more bureaucrats and more regulators who will attempt, either civilly or criminally, to punish people by catching them in the act of putting something into cyberspace. Frankly, there is just too much going on on the Internet for that to be effective. No matter how big the army of bureaucrats, it is not going to protect my kids because I do not think the Federal Government will get there in time. Certainly, criminal enforcement of our obscenity laws as an adjunct is a useful way of punishing the truly guilty. Mr. Chairman, what we want are results. We want to make sure we do something that actually works. Ironically, the existing legal system provides a massive disincentive for the people who might best help us control the Internet to do so. I will give you two quick examples: A federal court in New York, in a case involving CompuServe, one of our on-line service providers, held that CompuServe would not be liable in a...