Intermediary Design Duties
74 Pages Posted: 6 Jul 2017 Last revised: 29 May 2018
Date Written: March 1, 2018
Online social networking applications and marketplaces enable users to discover ideas, people, places, and products. The companies behind these services purport to be little more than the conduits through which users socialize and transact business. It is on this premise that, pursuant to the Communications Decency Act (CDA), courts are reluctant to impose liability on intermediaries for their users’ illegal online conduct. In spite of language in the statute that would limit the safe harbor to intermediaries that voluntarily moderate users’ content and behavior, courts today refrain from granting immunity only in cases in which intermediaries “materially contribute” to illegal online conduct. This has proven to be a very high juridical bar for plaintiffs to clear and a very generous protection for defendant providers.
This doctrine rests on an outdated view of how most online intermediaries do business. Today, the largest online companies do not merely host and relay messages, uninterested in what their users say or do. They use behavioral and content data to engineer online experiences in ways that are unrelated to the charming interest in making connections. Some of the most successful companies, moreover, collect, analyze, sort, and repackage user data for publication in ancillary and secondary markets. This is how the CDA immunity doctrine, first developed by the courts two decades ago, is ill-suited to the world today. Online intermediaries are now aggressively exploiting user content in ways that the doctrine does not fully acknowledge, leaving public law priorities and consumer protections underenforced. Vulnerable people and historically subordinated groups have the most to lose under this approach.
This Article proposes a reform that is adapted to online intermediaries’ outsized influence today. It proposes that courts scrutinize the manner in which providers in each case elicit user content and the extent to which they exploit that data in secondary or ancillary markets. Following this more searching approach, courts will return the doctrine to its roots in the language and purpose of the CDA: to shield intermediaries from liability for third-party online conduct only to the extent they operate as true conduits of user content.
Keywords: cda, communications decency act, online intermediaries, intermediary immunity, discrimination, passive conduit, material contribution, roommates.com
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