Section 230 of the Communications Decency Act, 47 U.S.C. §230 (“Section 230” or the “CDA”), enacted in 1996, is generally viewed as the most important statute supporting the growth of Internet commerce. The key provision of the CDA, Section 230(c)(1)(a), only 26 words long, simply states: “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.” This one sentence has been the source of bedrock service provider immunity for third party content made available through a provider’s infrastructure, thus enabling the growth of a vigorous online ecosystem. Without such immunity, providers would have to face what the Ninth Circuit once termed, “death by ten thousand duck-bites,” in having to fend off claims that they promoted or tacitly assented to objectionable third party content.
The brevity of this provision of the CDA is deceptive, however. The CDA – and the immunity it conveys – is controversial, and those 26 words have been the subject of hundreds, if not thousands, of litigations. Critics of the CDA point to the proliferation of hate speech, revenge porn, defamatory material, disinformation and other objectionable content – in many cases, the sites hosting such third party content (knowingly or unknowingly) are protected by the broad scope of the CDA. Other objections are merely based on unhappiness about the content of the speech, albeit in many cases true, such as comments that are critical of individuals, their businesses or their interests. Litigants upset about such content have sought various CDA workarounds over the past two decades in a mostly unsuccessful attempt to bypass the immunity and reach the underlying service providers.
The back-and-forth debate around the scope and effects of the CDA and the broad discretion afforded online providers regarding content hosting and moderation decisions is not new. However, it was brought into a new focus when the President, vexed at the way some of his more controversial posts were being treated by certain social media platforms, issued a May 20, 2020 Executive Order for the purpose of curtailing legal protections for online providers. The goal was to remedy what the White House believed was the online platforms’ “deceptive or pretextual actions stifling free and open debate by censoring certain viewpoints.”
The Executive Order – which is currently being challenged in court as unconstitutional – directed several federal agencies to undertake certain legislative and regulatory efforts toward CDA reform. Consequently, in June 2020 the DOJ stated “that the time is ripe to realign the scope of Section 230 with the realities of the modern internet” and released a 28-page document with its preliminary recommendations for reform of Section 230. A month later, the Commerce Department submitted a petition requesting that the FCC write rules to limit the scope of CDA immunity and place potentially additional compliance requirements on many providers that host third party content. Then, on September 23, 2020, the DOJ announced that it had sent its legislative proposal for amending the CDA to Congress. The DOJ, in its cover letter to Congress, summed up the need for reform: “The proposed legislation accordingly seeks to align the scope of Section 230 immunities with the realities of the modern internet while ensuring that the internet remains a place for free and vibrant discussion.”