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The Internet Will Not Break: Denying Bad Samaritans Section 230 Immunity

24 Pages Posted: 27 Jul 2017  

Danielle Keats Citron

University of Maryland Francis King Carey School of Law; Yale University - Yale Information Society Project; Stanford Law School Center for Internet and Society

Benjamin Wittes

Brookings Institution

Date Written: July 24, 2017

Abstract

What do a revenge pornographer, gossip-site curator, and platform pairing predators with young people in one-on-one chats have in common? Blanket immunity from liability, thanks to lower courts’ interpretation of section 230 of the Communications Decency Act (CDA) beyond what the text, context, and purpose support. The CDA was part of a campaign — rather ironically in retrospect — to restrict access to sexually explicit material online. Lawmakers thought they were devising a safe harbor for online providers engaged in self-regulation. The CDA’s origins in the censorship of “offensive” material are inconsistent with outlandishly broad interpretations that have served to immunize from liability platforms dedicated to abuse and or those that deliberately tolerate illegality.

In contrast to a strike-oriented view of the CDA’s safe harbor, its modest revision will not break the “Internet.” Whether this would have been true at the time of its passage two decades ago, it would not be true today. Conditioning immunity from liability on reasonable efforts to address unlawful activity would not end innovation or free expression as we know it. The current environment of perfect impunity for platforms deliberately facilitating online abuse is not a win for free speech because harassers speak unhindered while the harassed withdraw from online interactions. With modest adjustments to section 230, either through judicial interpretation or legislation, we can have a robust culture of free speech online without shielding from liability platforms designed to host illegality or who deliberately host illegal content.

Keywords: Section 230, Communications Decency Act, Cyberharassment, Social Media, Internet Regulation, Platform Liability, Section 230 Immunity, First Amendment, Revenge Porn

Suggested Citation

Citron, Danielle Keats and Wittes, Benjamin, The Internet Will Not Break: Denying Bad Samaritans Section 230 Immunity (July 24, 2017). Fordham Law Review, Forthcoming; U of Maryland Legal Studies Research Paper No. 2017-22. Available at SSRN: https://ssrn.com/abstract=3007720

Danielle Citron (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

Yale University - Yale Information Society Project

127 Wall Street
New Haven, CT 06511
United States

Stanford Law School Center for Internet and Society

Palo Alto, CA
United States

Benjamin Wittes

Brookings Institution ( email )

1775 Massachusetts Ave, NW
Washington, DC 20036
United States

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