An interpretive framework for narrower immunity under section 230 of the Communications Decency Act.

• Author: Dickinson, Gregory M.
• Position: Note

INTRODUCTION I. SECTION 230: TEXT AND BACKGROUND II. ZERAN, DRUDGE, AND THE MAJORITY VIEW III. INTERPRETIVE DIFFICULTIES AND OUTMODED POLICY OBJECTIVES A. Subsections 230(c)(1) and (c)(2): Giving Meaning to "Good Samaritan" B. Subsections 230(c)(1) and (f)(3): Defining Information Content Providers C. Now-Undesirable Policy Outcomes IV. A NARROWER VIEW OF SECTION 230 IMMUNITY A. Pre-Internet Precursors: Ratification and Concert of Action B. A Narrower Interpretation of Section 230 CONCLUSION INTRODUCTION

For well over a decade, courts and commentators have struggled to apply and interpret Section 230 of the Communications Decency Act of 1996 (CDA). Section 230 was designed to accomplish two objectives: First, Congress sought to protect children from Internet pornography by encouraging Internet Service Providers (ISPs) and websites to censor content voluntarily; second, Congress sought to promote freedom of expression on the Internet. To accomplish these two divergent goals, Section 230 grants immunity from tort liability to all websites and ISPs that are not themselves responsible for the creation or development of tortious content. Almost all courts have interpreted Section 230 immunity broadly, covering even publishers who take an active role in the production of controversial content, so long as they are not the authors. Although this broad interpretation effects the basic goals of the statute, it ignores several serious textual difficulties and mistakenly extends protection too far by immunizing even direct participants in tortious conduct. A proper reading of the statute--one that accounts for the background common law principles of vicarious tort liability upon which Section 230 was enacted--would correct both problems.

Part I introduces Section 230's history and purpose. Part II reviews the courts' broad interpretation of the statute. Part III examines several textual difficulties that this broad interpretation raises. Finally, Part W attempts to solve these difficulties by interpreting Section 230 in light of the relationship between two strains of pre-Internet vicarious liability defamation doctrine and Stratton Oakmont, Inc. v. Prodigy Services. Co., the defamation case that prompted Congress to pass Section 230. The analysis indicates that although the immunity provision of Section 230 is broad, Congress did not intend to abrogate traditional common law notions of vicarious liability. Some bases of vicarious liability remain, and their continuing validity both explains the interpretive difficulties and undergirds courts' recent push to narrow Section 230 immunity.

1. SECTION 230: TEXT AND BACKGROUND

   Congress enacted Section 230 of the CDA (1) to achieve two objectives: (2) to address the problem of children accessing pornography and other offensive material on the Internet, (3) and to promote freedom of expression on the Internet, a then-new and potentially fragile communications medium. (4) To accomplish these goals, Section 230 grants immunity from tort liability to computer service providers such as websites and ISPs that provide access to defamatory content created by third parties:

   [section] 230(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;

   ....

   [section] 230(f)(3) Information content provider

   The term "information content provider" means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. (5) It is easy to see how Congress's grant of immunity promotes freedom of speech: Internet-based publishers are enabled to relay and distribute controversial and even defamatory third-party-created content without fear of tort liability. So long as they are not the authors of the material, "information content providers"-websites and other service providers--will not be liable. As a result, Comcast and Verizon can provide unfettered access to the entire Internet, blog-hosting sites such as WordPress and Blogger can make available the enlightening and sometimes lessen-lightening musings of the Internet community at large, and Wikipedia can provide user-authored, encyclopedic coverage of nearly every topic imaginable--all free from the threat of liability should some user-submitted content prove to be defamatory. (6)

   Section 230's effect on children's access to objectionable content is slightly more roundabout. Rather than creating a positive incentive to censor content, the provision operates by removing a major disincentive to censorship: the threat of defamation liability. In Stratton Oakmont, Inc. v. Prodigy Services Co., (7) a New York state court held Prodigy, a then-popular ISP, liable for defamatory content posted by a third party to one of the service's message boards. The court reasoned that because Prodigy held itself out to the public as a family-friendly, carefully controlled and edited Internet provider, and took steps to screen offensive content, the ISP had taken on the role of a newspaper-like publisher rather than a mere distributors and could therefore be held liable. (9) By filtering some objectionable content, the court reasoned, Prodigy had taken ownership of all of it. Congress rejected this line of reasoning in Section 230 and instead immunized computer service providers from liability "on account of any action voluntarily taken ... to restrict access to or availability of [objectionable content]." (10) As a result, censorship of third-party-created content can now proceed freely. Without fear of incurring liability, filtered Internet services can protect homes and workplaces from pornography and other objectionable material, message board administrators can remove obscene or simply off-topic posts from their sites, and bloggers can remove or censor objectionable visitor comments to their postings.

2. ZERAN, DRUDGE, AND THE MAJORITY VIEW

   Section 230 operates straightforwardly: Computer service providers such as ISPs and websites are granted immunity from defamation liability for third-party-created content in order to promote free speech and to allow them to protect children from objectionable content. Courts have struggled, however, to define the precise contours of the statute's immunity provisions. What qualifies as an interactive computer service? Can a business or website simultaneously be both a computer service and a content provider? Can a website or other service provider ever edit content so heavily as to transform itself into a content provider and thereby lose its immunity?

   Courts have, from the beginning, adopted a broad view of Section 230 immunity. (11) In Zeran v. America Online, Inc., (12) the U.S. Court of Appeals for the Fourth Circuit, the first circuit to interpret the statute, held that even if a service provider exercised significant editorial control over the content in question, it was immune so long as it was not the content's author. (13) Later courts gradually expanded Section 230 immunity to cover an increasingly broad range of potential defendants. (14) In Blumenthal v. Drudge, (15) for example, the U.S. District Court for the District of Columbia found an ISP eligible for Section 230 immunity even though it had contracted for the development of the unverified gossip column that was at issue in the suit. (16) Thus, even when defamatory content is developed at a service provider's request, the provider is immune from liability so long as it is not the author of the material.

   Almost all courts considering Section 230's scope have followed Zeran and Drudge, (17) and the Ninth Circuit has formalized the holdings of the cases into a three-part inquiry: (18) (1) is the defendant an "interactive computer service" within the meaning of Section 230; (2) does the plaintiff's cause of action treat the defendant as a publisher; and (3) was the content at issue in the suit "provided by another information content provider?" If a plaintiff's cause of action against a website or other computer service treats that service as a publisher of third-party-created content, the defendant will be immune from liability--end of story.

3. INTERPRETIVE DIFFICULTIES AND OUTMODED POLICY OBJECTIVES

   The prevailing approach to Section 230 serves Congress's dual goals quite well. The broad service provider immunity of Zeran and Drudge promotes freedom of speech on the Internet while simultaneously removing a major disincentive to censorship. Zeran and Drudge, along with later cases, however, failed to resolve several serious interpretive difficulties.

   1. Subsections 230(c)(1) and (c)(2): Giving Meaning to "Good Samaritan"

      Chief among these difficulties is the relationship between subsections (c)(1) and (c)(2). Subsection (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." (19) As noted in Part II above, Zeran and later courts quite reasonably interpreted this language to immunize websites and other service providers from tort liability for any third-party-created content regardless of whether they make any editorial changes to the content. (20) If this reading is proper, however, then subsection (c)(2), which provides immunity to computer service providers that do choose to...