A funny thing happened on the way to censoring the Internet – ISPs were given immunity from liability related to third party content. Senator Exon
, in 1996, set out on his crusade to stop the barbarians at the gate of the Internet. He successfully introduced the Communications Decency Act which attempted to criminalize offensive content. What he ended up doing was protecting ISPs and users from certain third party liability.
To understand what Congress was up to, you have to step back a few years to a lawsuit called Stratton Oakmont v. Prodigy. Stratton Oakmont was a financial institution that, at the time, was reportedly experiencing a degree of difficulty. One of the difficulties was that someone in a Prodigy chat room had posted some material allegedly defamatory to Stratton Oakmont’s good name.
There were two problems. First, the poster of the material could not be found. Second, Prodigy was engaged in the practice of monitoring and filtering the chat rooms for material that was offensive to children. It was part of their sales pitch that their services were kid friendly.
Stratton Oakmont, feeling defamed and seeking damages, filed a lawsuit. Of course, they could not sue the anonymous poster, so they sued the next best thing; they sued Prodigy. Prodigy’s defense was elegant – Prodigy said “get outta here – were just an ISP – we do not have any control over what is posted to our system nor is it technically feasible for us to exert control.” But Stratton Oakmont argued back that Prodigy was not merely an online service; Prodigy had become a publisher. By filtering the chat rooms for content offensive to children, Prodigy had exercised editorial control over what would and would not be published, and therefore had the liability of a publisher. And if a publisher publishes defamatory remarks, that publisher can be liable. [Donato]
The Court bought it. Congress did not. Congress was appalled by the thought that - here Sen. Exon was telling us about this threat to the youth of American, and here Prodigy was acting the good citizen and fighting the filth – and Prodigy ends up getting slammed for something completely unrelated.
So Congress included in the Communications Decency Act the Good Samaritan defenses. These provisions hold that ISPs are not publishers of third party content and cannot be held liable as publishers for this content. Furthermore, ISPs can not be found to be liable under any law for actions taken to protect children from filth. According to the Act:
(1) 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.
(2) No provider or user of an interactive computer service shall be held liable on account of –
- (A) Any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be
- obscene,
- lewd,
- lascivious,
- filthy,
- excessively violent,
- harassing, or
- otherwise objectionable,
whether or not such material is constitutionally protected; or
- (B) Any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph ([A]). [Zango slip 6 (defendant malware detecting company immune where it identifies certain programs as potentially malware)]
[47 U.S.C. § 230(c)] This immunity has been interpreted broadly. [Carafano] [Batzel n 19] [Zango] Potential state causes of action, inconsistent with this section, are preempted. [47 U.S.C. § 230(e)(3)]
This provision, however, has no effect on intellectual property law [47 U.S.C. § 230(e)(2)] or on the Electronic Communications Privacy Act. [47 U.S.C. § 230(e)(4)]
Congress was directly reacting against the situation where an ISP was making decisions in a chat room about what could and could not be posted. Even where the service provider takes an active role, much like a publisher, it shall not be held liable as a publisher. Liability shall rest solely on the actual content producers and enforcement shall be emphasized.
Good faith: 230(c)(2)(A) has a good faith requirement; 230(c)(2)(B) has no good faith requirement. [Zango slip 7]
Notice: Unlike the DMCA, providing notice to an ISP does not create an obligation to take down the content nor does it defeat the immunity from liability. [Eckert] The Court in Zeran stated "[i]n light of the vast amount of speech communicated through interactive computer services, these notices could produce an impossible burden for service providers, who would be faced with ceaseless choices of suppressing controversial speech or sustaining prohibitive liability." [Zeran p 333]
Who is protected? It's not just the ISPs that are protected. An "interactive computer service" has been interpreted broadly, [Batzel p 1030] [Zango (230 protects malware filter as an "access software provider" 230(f)(4)(a))]; users of the service are likewise protected. This has taken on renewed importance in the age of Web2.0, where authors are quoting and commenting on content. This has also been important for moderators of discussion groups. Bloggers [DiMeo], owners of chat rooms [Green], and moderators have been found to be covered under the Good Samaritan Defense. [Barrett]
CDA Score Card: If you are keeping a score card, this is where all these situations have ended up. The Stratton Oakmont decision was appealed by Prodigy. Stratton Oakmont then thought it might be a good idea to settle, and did, relieving Prodigy of all liability. [NYTimes] The Communications Decency Act, at least those portions of the act criminalizing filth on the Internet, was declared unconstitutional by unanimous Supreme Court. And the Good Samaritan Defenses are still standing and remain good law.
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