The Communication Decency Act Gone Wild: a Case for Renewing the Presumption Against Preemption

• Jurisdiction: United States,Federal
• Citation: Vol. 37 No. 02
• Publication year: 2013

SEATTLE UNIVERSITY LAW REVIEWVolume 37, No. 2, Winter 2014

The Communication Decency Act Gone Wild: A Case for Renewing the Presumption Against Preemption

Ryan J.P. Dyer(fn*)

"The Communications Decency Act was not meant to create a lawless no-man's-land on the Internet."(fn1)

I. INTRODUCTION

Few things in history have expanded the reach of human enterprise like the Internet. Since its inception, the Internet has disseminated the most vital commodity known to man-information. But not all information is societally desirable. In fact, much of what the Internet serves to disseminate is demonstrably criminal. Nevertheless, in the effort to unbind the "vibrant and competitive free market" of ideas on the Internet, Congress enacted section 230 of the Communications Decency Act (CDA).(fn2) In essence, section 230 of the CDA grants immunity to "interactive computer service providers"(fn3) (ICSPs) from liability for information provided by a third party.(fn4) Courts have broadly applied section 230's grant of immunity to bar plaintiffs seeking to hold ICSPs liable for third party content posted to their websites.(fn5) However, as the Internet permeates deeper into modern society, an increasing amount of criminal activity is finding refuge behind outdated and obtuse constructions of section 230's immunity provisions.(fn6) Consequently, state and local governments are faced with a diminishing capacity to properly confront the widening array of criminal activity perpetrated via the Internet.(fn7)

Section 230 has garnered significant attention since its enactment, and many commentators have noted the sweeping impunity it has bestowed upon websites that host third-party content.(fn8) The initial scope of immunity provided by courts applying section 230, as well as the practical consequences of its continued construction, is well documented.(fn9) This Comment strives to explain why courts applying section 230 today-over fifteen years after its enactment and in the face of flagrantly criminal complicity on the part of websites-continue to accept the preemptive scope established by early courts. More specifically, this Comment suggests that, in certain contexts, courts applying section 230 immunity should reexamine the preemptive effect Congress intended section 230 to have on traditional state police powers.(fn10) Doing so would not only reveal the unwarranted scope of activities currently deemed immune under section 230, but would also redeem the ability of state and local authorities to combat the increasing amount of criminal activity on the Internet.(fn11)

Part II of this Comment outlines the legislative history and intent of section 230, as well as the evolution of judicial construction and application of the statute's immunity-granting provision. Part III discusses how early courts' over-expansive interpretation of section 230, coupled with the current proliferation of cybercrime, is increasingly paralyzing states' efforts to combat crime perpetrated via the Internet. Part IV identifies the locus of continued misconstruction by courts applying section 230 as the failure to reevaluate Congress's preemptive intent in light of the changing dynamic on the Internet. Part V analyzes the several judicial and legislative solutions that could alleviate the strain that section 230 immunity puts on state and local efforts to deal with criminal activity perpetrated via the Internet. Finally, Part VI offers a brief conclusion.

II. THE CONCEPTION & APPLICATION OF SECTION 230

Section 230's inclusion as part of the CDA represented Congress's desire to remove the disincentives for online intermediaries to police activity on their websites. The new provision arrived with a splash as early courts gave section 230's scope of immunity expansive effect.(fn12) Originally, the provision was intended to encourage the removal of offensive content; instead, it has developed into a broad grant of immunity for websites that host offensive and criminal content.

A. A Brief History

The Communications Decency Act of 1996 was enacted at the height of a national struggle between explosive growth in the telecommunications industry (fn13) and resurgent social conservatism. (fn14) Senator James Exon from Nebraska spearheaded the legislation, intending to combat the danger posed to the youth of America(fn15) by "barbarian por-nographers."(fn16) Several CDA provisions were widely scrutinized for their questionable constitutionality.(fn17) Eventually, in Reno v. ACLU, the Supreme Court struck down portions of the Act that criminalized the transmission of indecent material accessible to minors.(fn18) Yet most of the Act still remained intact, including section 230.

Section 230, titled "Protection for Private Blocking and Screening of Offensive Material," was created "to promote the continued development of the Internet."(fn19) At the time of the CDA's creation, Congress doubted certain CDA provisions would survive constitutional scrutiny(fn20) and thus enacted section 230 as a "complementary backstop" to the Act's more dubious provisions.(fn21) Congress was also motivated to override a recent decision of a New York trial court in Stratton Oakmont, Inc. v. Prodigy Services.(fn22)

In Stratton Oakmont, an ICSP was held liable for a third party's li-belous statements posted on its computer bulletin boards.(fn23) The ICSP exercised some editorial control over the content posted on its interactive user bulletin boards and touted itself as a family-oriented computer net-work.(fn24) The court held that because the ICSP had exercised some editorial control over its bulletin boards, it could be held liable under a publisher theory of liability just like a brick-and-mortar newspaper or maga-zine.(fn25)

Concerned that the decision in Stratton Oakmont would serve as a disincentive for ICSPs to exercise any editorial control over third-party content posted to their sites lest they incur full publisher liability, Congress responded by including section 230 in the CDA.(fn26) Specifically, Representatives Christopher Cox and Ron Wyden proposed an amendment to the draft CDA (the Cox-Wyden Proposal).(fn27) The Cox-Wyden Proposal sought to address the dilemma Stratton Oakmont created by removing traditional forms of publisher liability for ICSPs who acted in good faith to restrict access to offensive content.(fn28) However, unlike the provisions Senator Exon advocated,(fn29) the Cox-Wyden Proposal did not affirmatively require ICSPs to make good faith efforts to qualify for immunity.(fn30) Nevertheless, both the Exon and Cox-Wyden Proposals were enacted as part of the CDA.

The immunity-granting provision of section 230 provides as follows:(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.(fn31)

Section 230 expansively defines an "interactive computer service" to include all online service providers and websites;(fn32) an "information content provider" is "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."(fn33) Congress attempted to limit the scope of immunity by stating that section 230 would have no effect on federal criminal statutes, intellectual property law, communications privacy law, or "any State law that is consistent with this section."(fn34) However, subsection (c) has unintentionally become the most impactful language within the entire CDA controlling virtually every cause of action against ICSPs.(fn35)

B. Judicial Treatment

Generally, courts broadly interpret section 230 and the immunity it provides ICSPs. As discussed below, early courts benefited from factual circumstances mirroring the context in which section 230(c) was meant to apply. However, the first courts to interpret and apply section 230 went "further than was necessary to effectuate the congressional goals" of the statute's immunity-granting provision.(fn36) Although unapparent at first, this over-expansive reading of section 230(c) laid the groundwork for broad applications of immunity by future courts in contexts blatantly incommensurate with the statutes intended scope and effect.

The first major case interpreting section 230 was the Fourth Circuit's decision in Zeran v. America Online, Inc.(fn37) Plaintiff Zeran was the subject of a hoax in which an unidentified person advertised t-shirts displaying offensive slogans related to the recent Oklahoma City bomb-ing.(fn38) The posted advertisement appeared on America Online's (AOL) public message boards and listed Zeran's phone number, urging viewers to contact Zeran for more information.(fn39) Zeran was quickly inundated with threatening phone calls from viewers of the ad, and the next day he called AOL to complain.(fn40) AOL agreed to remove the ad but did not issue a retraction, and shortly after, similar ads continued to appear.(fn41) Ze-ran filed suit claiming that once AOL received notice of the fallacious postings, it had a duty to remove the postings, issue a retraction, and prevent a reoccurrence.(fn42)

In an attempt to give far-reaching effect to Congress's intent to overrule Stratton Oakmont, the Fourth Circuit broadly interpreted...