Privacy Advisor

The Internet Has Grown Up, Why Hasn’t the Law? Reexamining Section 230 of the Communications Decency Act

August 26, 2013

By Andrew Bolson, CIPP/US

You never have a second chance to make a first impression, or so the saying goes. Nowadays, first impressions are increasingly made online. The reality of an online identity is often a double-edged sword. On one hand, a person has the ability to develop a positive profile that could enhance a personal brand. On the other hand, the openness of the Internet inhibits the ability of an individual to control content about oneself. While negative reviews, defamatory comments and unflattering photos can be easily posted on the Internet, removing the content often proves much more challenging. Unsurprisingly, poll data reflects society’s increasing concern for reputation management. In a poll performed by the Pew Internet and American Life Project in May 2010, 57 percent of adult Internet users admitted to using search engines to detect information about themselves. The same poll revealed that four percent of online adults have had bad experiences with “embarrassing or inaccurate information…posted about them online.” While this number may seem small, this means that millions of Americans have been negatively impacted by the “openness” of the Internet.

For this reason, the greatest threat to a person’s reputation and online privacy is Section 230 of the Communications Decency Act (CDA). Enacted in 1996, the legislation provides that “[n]o 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.” Section 230 of the CDA also includes a “Good Samaritan” provision, which provides that “no provider or user of an interactive computer service shall be held liable on account of…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.” The impact of Section 230 cannot be overstated. The law immunizes websites for the content published on their sites. More problematic, the law provides no incentive for websites to remove defamatory and harassing content or a mechanism to ensure compliance with takedown orders.

Among the findings and policies supporting its action, Congress finds the following:

  • The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
  • The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.

It is the policy of the United States . . .

  • to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
  • to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
  • to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material.

An important basis for Section 230’s implementation is the idea that the Internet was designed to be unregulated. In the almost 20 years since the law was enacted, the Internet has evolved in ways never first imagined. Although it is possible that Section 230 assisted in the Internet’s growth and development, it seems that the Internet no longer needs to be coddled in order to thrive.

Since the enactment of Section 230, the government has regulated aspects of the Internet. In 1998, Congress passed the Children’s Online Privacy Protection Act (COPPA) to regulate the amount of information that can be collected from children under the age of 13. In 1998, Congress also passed the On-Line Copyright Infringement Liability Limitation Act (OCILLA) as part of the Digital Millennium Copyright Act (DMCA). The law protects Internet service providers from copyright violations created by its users if the Internet providers follow certain procedures. Among the requirements for service providers to obtain “Safe Harbor” protection is to follow take-down notifications. Under the law, Internet providers must remove infringing content upon being notified of the alleged infringement or if the company discovers the infringing content itself. After removing the content, the service provider must notify the individual who posted the allegedly infringing material. If the alleged infringer objects to the content’s removal, the copyright owner must bring a lawsuit in a district court within 10 to 14 days. Otherwise, the content is restored to its location. If an Internet service provider does not follow the law’s procedures, it can be held liable for the copyright infringement of its users.

How could Congress amend Section 230 without infringing upon an individual’s constitutional right to free speech? One approach could be to utilize the framework provided by OCILLA. Under amended legislation, if an individual or company has been harassed or defamed online, they could file an action with a court, likely a state court since harassment and defamation are state actions. In an expedited process, the courts could determine whether the content constitutes harassment or defamation and should be removed. If so, a court would be empowered to order content be taken down. Only if the Internet service provider failed to honor the takedown request would the Internet service provider be liable for the actions of its users. This approach materially differs from the DMCA by mandating that the complainer seek court intervention prior to requiring takedown. However, requiring a court order as a threshold matter would help weed out frivolous claims that would be only filed to chill free speech.

Surely, there are issues with the simple outline of an approach discussed above. Undoubtedly, it would strain resources of the courts that are already stretched. In addition, legal fees and court costs may provide a roadblock to some individuals’ ability to seek redress. However, this solution is certainly better than maintaining the status quo. Anyone who has been affected by Section 230 understands the frustration associated with having Internet service providers immune to liability. Simply, without any incentive to remove content that may have already been deemed defamatory, websites are often unresponsive to takedown requests.

Section 230 of the Communication Decency Act presents a clear danger to Americans’ individual privacy. It impacts the ability for individuals to prevent and stop cyber bullying, cyber harassment and cyber defamation. While the problems of Section 230 have achieved attention, there have been few solutions presented to challenge the status quo. This is unacceptable. As a society, people should have a right to protect their good reputation and to protect themselves from unwarranted invasions of privacy. As a result, amending Section 230 of the CDA should be a priority for privacy professionals, businesses and Congress.

Andrew Bolson, CIPP/US, is an associate with Rubenstein, Meyerson, Fox, Mancinelli & Conte in New Jersey.

Read More by Andrew Bolson:
Maintaining Location Privacy in the Digital Age