Reform Section 230 of CDA

Section 230 of the Communications Decency Act is a landmark piece of Internet legislation.  By virtue of the law that was passed in 1996, websites are immune from liability for the content posted on them by third-parties, no matter how defamatory or abusive the content may be.

Section 230 was borne out of a reaction to the legal decision in Stratton Oakmont v. Prodigy Services.  In that case, the Court held that Prodigy (an Internet Service Provider) was liable for the content posted on its service by a third-party.  The Court reasoned that liability against Prodigy was appropriate since Prodigy exercised editorial control over content that had been posted to its website.  Congress became concerned that, after the Stratton Oakmont decision, websites would stop monitoring, blocking, and screening objectionable content posted onto their sites, most notably pornography, to avoid potential liability.

Congress reacted to the Stratton Oakmont decision by immunizing Internet Service Providers, including websites, from all liability for the content posted on them by their users. The Internet has developed in ways never imagined in 1996.  Similarly, the ways in which the immunity afforded by Section 230 of the Communications Decency Act has been invoked were inconceivable to the legislators who enacted the law.  Nowadays, Section 230 has been successfully cited to protect websites from liability associated with defamatory posts, cyber harassment, human-trafficking, e-impersonation and terroristic speech.

The problem with Section 230 is that it creates a self-governing system that relies upon the good faith cooperation of websites to remove harmful or abusive online content.  When websites fail to cooperate, however, individuals and businesses aggrieved by the third-party content have few options at their disposal.  Undoubtedly, Section 230 has its place.  The law is largely responsible for the development of the social media industry and is important for ensuring continued innovation in cyberspace.  That being said, the privileges afforded by Section 230 immunity should not be so easily earned.  Websites should be required to observe certain conditions in order to receive immunity.  Such conditions should include:

  1. Websites must honor court orders that compel the removal of third-party content.
  2. Websites must have notice and take down procedures to address e-personation.
  3. Websites accessible to American Internet users must have a United States address for service of subpoenas.
  4. Websites cannot require that subpoenas to unmask anonymous posters be localized prior to being served upon the website.
  5. Websites must provide an avenue to appeal decisions to remove or not remove content based upon a website’s terms of service policy.

Other jurisdictions, including Canada, the United Kingdom and the European Union, condition their publisher immunity upon the observance of certain requirements, such as the honoring of court orders.  In those jurisdictions, the Internet continues to thrive.  If Congress attached limited strings on Section 230 immunity in the United States, the Internet would survive, albeit more safe and fair.