AuthorEleey, Alison

The Communications Decency Act ("CDA") regulates the content of technology companies, including social media platforms. (1) The CDA has come under immense scrutiny, particularly regarding social media's role in facilitating attacks by terrorist organizations. (2) In Force v. Facebook, Inc., (3) the United States Court of Appeals for the Second Circuit decided whether the CDA provided Facebook with immunity from claims that Facebook provided a platform for the terrorist organization, Hamas, to carry out various attacks. (4) The court held that Facebook was considered a "publisher" for purposes of the CDA, and was therefore immune from liability. (5)

Hamas is a Palestinian terrorist organization that has committed thousands of attacks in Israel, including five attacks against Americans between 2014 and 2016. (6) During these attacks, Hamas terrorists kidnapped and killed a teenager walking home from school, drove a car into a crowd and killed a 3-month-old baby, and stabbed three victims. (7) Hamas operatives carried out all of these attacks. (8) Hamas used Facebook to encourage attacks, celebrate the success of these attacks, and propagate their political views. (9) The Plaintiffs in Force, therefore, claimed that Facebook enabled Hamas to carry out the terrorist attacks and should be held liable for their role in aiding such attacks. (10)

Facebook is an "online social network platform and communications service" where users join the network and populate their pages with their own content. (11) Facebook does not review the content its users post, however, it does have a department focused on anti-terrorism. (12) These "counterterrorism specialists" use various techniques to identify terrorist activity and remove concerning posts to the best of their ability. (13) Nevertheless, Facebook is unable to identify and remove all terrorist activity on its platform. (14)

The Plaintiffs' first complaint alleged that Facebook was civilly liable under the Anti-Terrorism Act for aiding and abetting international terrorist activities. (15) The district court dismissed the Plaintiffs' first complaint under 47 U.S.C. [section] 230(c)(1) because the Plaintiffs treated Facebook as a publisher. (16) The Plaintiffs then filed an amended complaint that kept the original allegations, but added an additional claim that Facebook "concealed its alleged material support to Hamas." (17) However, the district court again denied their motion under 47 U.S.C. [section] 230(c)(1), to which the Plaintiffs appealed. (18) The Second Circuit Court affirmed the judgment of the lower court, and held that Facebook is a publisher and therefore immune under [section] 230(c)(1) of the CDA. (19)

Before the enactment of the CDA, common law regulated the internet and its liability for third parties. (20) This common-law-focused model forced courts to determine which category the internet service provider ("ISP") fell under, which resulted in conflicting decisions among various jurisdictions. (21) The courts found that either: (1) ISPs would not regulate any of their content for fear of liability, or (2) ISPs overcensored the internet, which in turn inhibited free speech. (22) In Cubby, Inc. v. CompuServe, Inc., the district court held that a computer-database owner was a distributor, and therefore not liable for a third party's defamatory statements because they neither knew nor had reason to know about the statements. (23) A few years later, in a case with facts similar to Cubby, the court in Stratton Oakmont v. Prodigy Servs. Co. held that an online service provider was liable for a third party statement because it attempted to filter its content. (24) The conflicting holdings of these cases worried Congress, which led to the formation of the CDA. (25)

In 1996, Congress passed the CDA in an effort to "control and limit the exposure of children to indecent and obscene material online." (26) One year later, the Supreme Court struck down most of the CDA because it exposed internet providers to too much liability, which consequently prompted the addition of [section] 230. (27) Section 230 of the CDA provides immunity for internet providers who are treated as publishers of third-party content. (28) The purpose of this immunity was largely to continue the development of the internet and "to preserve the vibrant and competitive free market ... for the Internet and other interactive computer services" without Federal or State regulation. (29) Moreover, there are three requirements for immunity under [section] 230 of the CDA: "(1) the defendant must be a provider or user of an 'interactive computer service'; (2) the asserted claims must treat the defendant as a publisher or speaker of information; and (3) the challenged communication must be 'information provided by another information content provider.'" (30)

In Zeran v. America Online, Inc., the United States Court of Appeals for the Fourth Circuit became the first court to interpret the CDA and subsequently set the precedent of broad immunity for internet service providers. (31) The court stated that "lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions--such as deciding whether to publish, withdraw, postpone or alter content--are barred." (32) With the exception of the Ninth Circuit, most courts have followed the Zeran precedent, holding that [section] 230 provides broad immunity to internet providers in the interest of cultivating a dynamic and open-internet system. (33) In Fair Housing Council of San Fernando Valley v., LLC, the Ninth Circuit limited [section] 230 and held that an ISP should not be afforded immunity because "it created and designed its registration process around questions and answers that it provided to prospective subscribers, which made analogous to an information content provider." (34) The Seventh Circuit also provided language against a broad application of the CDA, but ultimately gave immunity to the ISP. (35)

In Force, the court started its analysis by emphasizing the precedent courts' findings that [section] 230 provides broad immunity. (36) The court then implemented an ordinary meaning of the word "publisher" and categorized Facebook as such. (37) The court rejected the Plaintiffs' argument that Facebook should be liable for providing Hamas a platform to organize and reasoned that Facebook's conduct "falls within the heartland of what it means to be the 'publisher' of information under Section 230(c)(1)." (38) Furthermore, Facebook's use of algorithms and "matchmaking" tools to connect Hamas supporters did not disqualify Facebook from being considered a publisher. (39) The court stated that the bulk of an interactive computer service's job is to decide what content to display and noted there is no precedent that denied [section] 230 immunity based on "matchmaking." (40)

Next, the court addressed whether Facebook was a developer or creator because, if Facebook fell within either category, it would not have immunity under [section] 230. (41) The court rejected the Plaintiffs' argument that Facebook developed Hamas's content by directing the content to people interested in it. (42) The court reasoned that Facebook is not responsible for nor does it edit the content Hamas provides. (43) According to the court, Facebook is classified as a neutral party because the social media platform merely takes objective information from its users to "match" them with other users. (44) Facebook's act of making content more visible or available to users is part of the traditional role of a publisher and is not considered "developing" for the purposes of [section] 230. (45) In this instance, the court joined the majority of circuits in its broad interpretation of both [section] 230 of the CDA and the meaning of the word "publisher." (46)

Whether an internet provider is immune from liability for allegedly aiding a terrorist organization depends solely on the interperative mechanisms of the CDA. (47) However, courts have struggled to interpret the CDA due to the statute's lack of clearly defined terms. (48) Most circuit courts applied a broad interpretation of the CDA, and the Second Ciruit in Force was not an exception to this majority rule. (49) The strength of the CDA's immunity shield is highlighted in Doe v., where the court did not morally agree with providing immunity to the defendant, but felt that the CDA required them to do so. (50) Therefore, the Force decision will perpetuate broad immunity under the CDA for internet providers, making it difficult for future plaintiffs to successfully sue on these grounds. (51)

Future practicioners seeking to hold internet providers liable for their actions with third-parties may find it helpful to focus on categorizing internet providers as developers. (52) If an internet provider is classified as a content developer, they fall outside of the CDA...

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