Internet Law Commons^™

Breaking Algorithmic Immunity: Why Section 230 Immunity May Not Extend To Recommendation Algorithms, Max Del Real

Washington Law Review Online

In the mid-1990s, internet experiences were underwhelming by today’s standards, despite the breakthrough technologies at their core. When a person logged on to the internet, they were met with a static experience. No matter who you were, where you were, or how you accessed a particular website, it rendered a consistent page. Today, internet experiences are personalized, dynamic, and vast—a far cry from the digital landscape of just a few decades ago. While today’s internet is unrecognizable compared with its early predecessors, many of its governing laws remain materially unaltered. In particular, section 230 of the Communications Act, which passed …

Section 230 As Civil Rights Statute, Enrique Armijo

University of Cincinnati Law Review

Many of our most pressing discussions about justice, progress, and civil rights have moved online. Activists advocating for social change no longer need to be in the same physical space to connect with others who share their challenges and aspirations. But the convergence of mobility, connectivity, and technology is not the only reason why. Thanks to Section 230 of the Communications Decency Act’s (“Section 230”) immunity for online platforms, websites, and their hosts, speakers can engage in speech about protest, equality, and dissent without fear of collateral censorship from governments, authorities, and others in power who hope to silence them. …

Blockchain Safe Harbor? Applying The Lessons Learned From Early Internet Regulation, Amy Cyphert, Sam Perl

Marquette Law Review

It has been more than a quarter century since Congress enacted twin safe harbor provisions to help protect and encourage the growth of a nascent internet by removing some liability and regulatory uncertainty. Today, there are calls for a similar safe harbor provision for blockchain, the technology behind cryptocurrencies and smart contracts. What lessons have we learned from the implementation of the internet safe harbor provisions, Section 230 of the Communications Decency Act, and Section 512 of the Digital Millennium Copyright Act? This Article charts the history of those provisions and their judicial construction over the decades. It also examines …

Sex, Drugs, And Rock & Roll: Effectively And Equitably Moderating Vice And Illegal Content Online, Elise N. Blegen

Vanderbilt Law Review

The modern internet is vast, with more than 2.5 quintillion bytes of data created every day. Content is created, uploaded, downloaded, and shared across an increasingly large number of platforms. Most of this content is legal; however, some is illegal, including hate speech, child sexual abuse material, and content that violates intellectual property rights. Section 230 of the Communications Decency Act ("CDA") provides that websites are not liable for content posted to their platform by third parties. Instead, websites determine their own content moderation policies, and the law assumes that they will do just that (given that exposure to graphic …

Tinder Love And Care: Proposing An Industry Self-Regulation Policy Implementing Safety Procedures For Dating App Companies, Marissa Meredith

Indiana Law Journal

Online dating companies have monetized and capitalized on the idea of finding love, creating a billion-dollar industry matching individuals with their “soul mates.” With its perks and benefits, the online love industry is not without risk. Despite some dating companies limiting user eligibility in their terms and conditions to those without felony and sexual offense convictions, there is no actual screening process established by these companies. Furthermore, there are no uniform safety protocols among dating app companies. This lack of uniformity coupled with access to all, including violent offenders, allows repeat offenders to engage in “delightful” conversations with unsuspecting strangers …

Privatizing Copyright, Xiyin Tang

Michigan Law Review

Much has been written, and much is understood, about how and why digital platforms regulate free expression on the internet. Much less has been written— and even much less is understood—about how and why digital platforms regulate creative expression on the internet—expression that makes use of others’ copyrighted content. While § 512 of the Digital Millennium Copyright Act regulates user-generated content incorporating copyrighted works, just as § 230 of the Communications Decency Act regulates other user speech on the internet, it is, in fact, rarely used by the largest internet platforms—Facebook and YouTube. Instead, as this Article details, creative speech …

A 180 On Section 230: State Efforts To Erode Social Media Immunity, Leslie Y. Garfield Tenzer, Hayley Margulis

Pepperdine Law Review

The turmoil of the 2020 presidential election renewed controversy surrounding 47 U.S.C § 230. The law, adopted as part of the 1996 Communications Decency Act (CDA), shields Interactive Computer Services (ICS) from civil liability for third-party material posted on their Platforms—no matter how heinous and regardless of whether the material enjoys constitutional protection. Consequently, any ICS, which is broadly defined to include Internet service providers (ISPs) and social media platforms (Platforms), can police its own postings but remains free from government intervention or retribution. In 2022, members of the Texas and Florida legislatures passed laws aiming to limit the scope …

Analysis Of Section 230 Under A Theory Of Premises Liability: A Focus On Herrick V.Grindr And Daniel V. Armslist, Kassandra C. Cabrera

University of Miami Business Law Review

Section 230 of the Communications Decency Act (“CDA”) has been held to give online service providers acting as interactive computer services sweeping immunity for content posted on their platforms. The intention behind the creation of Section 230 was not to immunize online service providers from all liability. Rather, Section 230 was enacted to protect online intermediaries acting as “Good Samaritans” – those who made “good faith” efforts to restrict unlawful or harmful content, but due to the breadth of the internet and advancements in technology over or under-filtered content on their platforms. This note outlines an approach for courts to …

Section 230 Immunity: How The Trump Era Has Exposed The Current Conflict Between The First Amendment And The Good Samaritan Clause In The Modern Public Square, Brandon Salter, Dhillon Ramkhelawn

University of Arkansas at Little Rock Law Review

No abstract provided.

Reaching Through The “Ghost Doxer:” An Argument For Imposing Secondary Liability On Online Intermediaries, Natalia Homchick

Washington and Lee Law Review

Imagine you have decided to run for office, to speak out publicly against an injustice, to enter the job market, or even to join a new online forum. Now, imagine after starting your chosen endeavor, you go online to discover that someone who disagrees with your position posted your personal information on the internet and called for others to harass you. To make matters worse, you realize that you cannot determine who posted your personal data. You have been doxed. Because you cannot identify the person who posted your information, where can you turn for recourse? The next logical party …

The Indecency Of The Communications Decency Act § 230: Unjust Immunity For Monstrous Social Media Platforms, Natalie Annette Pagano

Pace Law Review

The line between First Amendment protection and the innovation of social media platforms is hazy at best. Not only do these platforms increasingly encompass the lives of many individuals, but they provide incredible new opportunities to interact from near and far, through sharing photographs, videos, and memories. The Internet provides countless outlets that are available at the tip of users’ fingers: thriving forums to communicate nearly whenever and wherever desired. Users effortlessly interact on these platforms and are consistently exposed to numerous forms of speech, including messages through posts, chat room discussions, videos, polls, and shared statements. From 2010 to …

From Innovation To Abuse: Does The Internet Still Need Section 230 Immunity?, Benjamin Volpe

Catholic University Law Review

In 1996, Congress passed the Communications Decency Act to allow the screening of offensive material from the internet, while preserving the continued development of the internet economy without burdensome regulation. However, for years, online intermediaries have successfully used the Act as a shield from liability when third parties use their online services to commit tortious or criminal acts. This Comment argues that a wholly-unregulated internet is no longer necessary to preserve the once-fledgling internet economy. After evaluating various approaches to intermediary liability, this Comment also argues that Congress should take a more comprehensive look at consumer protection online and establish …

Trafficking Technology: A Look At Different Approaches To Ending Technology-Facilitated Human Trafficking, David Barney

Pepperdine Law Review

In 2018, many believe that slavery is an antiquated concept. But as with anything else, if it has not become extinct, it has evolved with time. Human trafficking is no different. Each year, millions of men, women and children are trafficked in the United States, and internationally, and forced to work against their will. Through the rise of technology and an increasingly globalized world, traffickers have learned to use technology as a tool to help facilitate the trafficking of persons and to sell those victims to others they never could have reached before. But what are we doing about it? …

The Save Act Of 2015: Congress' Attempt To Reprioritize Online Child Sex Trafficking, Ashley A. Cardenas

St. John's Law Review

(Excerpt)

This Note argues that the SAVE Act will not achieve Congress’ goal of prosecuting website operators and stopping the influx of online child sex trafficking advertisements. However, the potential pitfalls of this legislation does not mean the Act should be thrown out in its entirety. Instead, the Act should be rewritten to include well-crafted, yet informative definitions of online child sex trafficking, while also lowering the mens rea requirement and requiring website operators to engage in more due diligence.

Part I outlines the background of Internet sex trafficking in general. Section A discusses the parties involved in online child …

Cyberspace…The Final Frontier: How The Communications Decency Act Allows Entrepreneurs To Boldly Go Where No Blog Has Gone Before, Aaron Jackson

Oklahoma Journal of Law and Technology

No abstract provided.

Amend The Communications Decency Act To Protect Victims Of Sexual Exploitation, Samantha Vardaman

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Taming The Internet Pitchfork Mob: Online Public Shaming, The Viral Media Age, And The Communications Decency Act, Kristine L. Gallardo

Vanderbilt Journal of Entertainment & Technology Law

Accompanying the explosive growth of the Internet, one lamentable trend is the rise of online public shaming. While online public shaming may positively incentivize individuals to modify their behavior in accordance with socially acceptable norms, there has also been the emergence of an online "pitchfork mob" that can have a real impact on individuals' livelihoods and overall well being. Due to the lack of legal remedies available to victims of certain types of online shaming, this Note suggests that web hosts are empowered by the expansive protections of the Communications Decency Act to develop and implement policies to curb the …

Section 230 Of The Communications Decency Act: The True Culprit Of Internet Defamation, Heather Saint

Loyola of Los Angeles Entertainment Law Review

This Note highlights the growing concern of Internet defamation and the lack of viable legal remedies available to its victims. Internet defamation is internet speech with the purpose to disparage another’s reputation. At common law, a victim of alleged defamation has the right to file suit against not only the original speaker of the defamatory statements, but the person or entity to give that statement further publication as well. In certain cases even the distributor, such as a newspaper stand, can be held liable for a defamation claim. However, liability due to defamatory speech on the Internet is quite different. …

Cyberspace: The Final Frontier, For Regulation?, Jay Krasovec

Akron Law Review

This article will discuss the concept of anonymity on the Internet and argue for its protection. Part II provides background information on the Internet and illustrates the prominence the Internet has in today's global society. Part III discusses the concept of anonymity and its importance in our daily communications and how these principles necessarily extend to online communication. Part IV outlines the purported justifications for regulating Internet content, which is followed by Part V discussing current and attempted regulations of the Internet. This article then argues for the full protection of online anonymous speech as mandated by fundamental principles of …

The Communication Decency Act Gone Wild: A Case For Renewing The Presumption Against Preemption, Ryan J.P. Dyer

Seattle University Law Review

Since its inception, the Internet has disseminated the most vital commodity known to man—information. But not all information is societally desirable. In fact, much of what the Internet serves to disseminate is demonstrably criminal. Nevertheless, in the effort to unbind the “vibrant and competitive free market” of ideas on the Internet, Congress enacted section 230 of the Communications Decency Act, which essentially grants immunity to interactive computer service providers from liability for information provided by a third party. This Comment suggests that, in certain contexts, courts applying section 230 immunity should reexamine the preemptive effect Congress intended section 230 to …

It’S Time For Revenge Porn To Get A Taste Of Its Own Medicine: An Argument For The Federal Criminalization Of Revenge Porn, Taylor Linkous

Richmond Journal of Law & Technology

Throughout history, pornography and technology have enjoyed a symbiotic relationship, each playing a significant role in the growth and widespread success of the other. From the VCR and camcorders to the Polaroid camera and the Internet, the pornography industry has always accelerated the growth of new technologies, paving the way for these new services to be introduced into mainstream society. Most of these new technologies were appealing to creators and consumers of pornography because the new technologies brought an increased sense of privacy. For example, much of the success of the Polaroid camera is said to come from the fact …

Busting Blocks: Revisiting 47 U.S.C. § 230 To Address The Lack Of Effective Legal Recourse For Wrongful Inclusion In Spam Filters, Jonathan I. Ezor

Richmond Journal of Law & Technology

Consider a company that uses e-mail to conduct a majority of its business, including customer and vendor communication, marketing, and filing official documents. After conducting business in this manner for several years, one day the company discovers that its most recent e-mails were not delivered to recipients using a major Internet Service Provider (“ISP”) because the company was recently listed on an automated block list as a sender of unwanted bulk commercial e-mail (“spam”).

Interactive Computer Service Liability For User-Generated Content After Roommates.Com, Bradley M. Smyer

University of Michigan Journal of Law Reform

This Note explores the future of interactive computer service provider (ICSP) liability for user-generated content under the Communications Decency Act (CDA) after Roommates.com II. Roommates.com II held that a housing website was not entitled to immunity under § 230 of the CDA from federal Fair Housing Act claims, in part because providing preselected answers to a mandatory questionnaire rendered the site an "information content provider" at least partially responsible for creation or development of answers. After examining the historical and legislative origins of ICSP immunity for user-generated content under 47 U.S. C. § 230, this Note argues that courts …

Constitutionality Of Cyberbullying Laws: Keeping The Online Playground Safe For Both Teens And Free Speech, Alison V. King

Vanderbilt Law Review

The Internet is a blessing and a curse. Along with the manifold benefits the Internet provides-electronic research, instantaneous news, social networking, online shopping, to name a few-comes a host of dangers: online harassment and cyberbullying, hacking, voyeurism, identity theft, phishing, and perhaps still more perils that have yet to appear. The Internet creates a virtual world that can result in very real consequences for people's lives. This creates a challenge for parents, schools, and policymakers attempting to keep pace with rapidly developing technologies and to provide adequate protections for children. The even greater challenge, however, is to balance these vital …

Communication Indecency: Why The Communications Decency Act, And The Judicial Interpretation Of It, Has Led To A Lawless Internet In The Area Of Defamation, Colby Ferris

Barry Law Review

First, this article explores how law of defamation has been applied in the brick and mortar world, and how those same principles were applied to the cyber world. Next it looks at Congress’s legislation of defamation law on the Internet, and how that legislation has been applied in court. Finally, it evaluates the changing attitude toward that legislation, and changes Congress should consider making.

The Never-Ending Limits Of § 230: Extending Isp Immunity To The Sexual Exploitation Of Children, Katy Noeth

Federal Communications Law Journal

In 2006, the U.S. District Court for the Eastern District of Texas extended civil liability to Yahoo! under § 230 of the Communications Decency Act so that it could not be sued for knowingly profiting from a Web site where members exchanged sexually explicit pictures of minors. The court found that the reasoning of the seminal § 230 case, Zeran v. AOL, was analogous and that policy considerations mandated its holding.

This Note argues that a multifaceted approach is needed to prevent future courts from following that decision, including an amendment to § 230 that would impose civil liability upon …

Rethinking The Communications Decency Act: Eliminating Statutory Protections Of Discriminatory Housing Advertisements On The Internet, James D. Shanahan

Federal Communications Law Journal

The recent decision in Craigslist signals a drastic reduction in the effectiveness of the prohibition on discriminatory housing advertisements under the Fair Housing Act ("FHA"). Section 230 of the Communications Decency Act gives blanket immunity to Internet Content Providers from publisher liability for content originating from third parties. One of the effects of this immunity is the creation of a monopoly for discriminatory advertisements otherwise proscribed by the FHA. This Note argues that the simplest solution for Congress is to adjust the language of § 230 by adding the FHA to the list of exceptions to statutory immunity.

Bigger Phish To Fry: Californias Anti- Phishing Statute And Its Potential Imposition Of Secondary Liability On Internet Service Providers, Camille Calman

Richmond Journal of Law & Technology

The incidence of phishing, a form of internet fraud, has increased dramatically since 2003. Identity thieves searching for vulnerabilities in internet security have realized that customers are the weak link. Using mass e-mailings and websites purporting to be those of well-known and trusted corporations, “phishers” trick customers into revealing personal and financial information.

Internet Libel And The Communications Decency Act: How The Courts Erroneously Interpreted Congressional Intent With Regard To Liability Of Internet Service Providers, Emily K. Fritts

Kentucky Law Journal

No abstract provided.

Toward A Constitutional Regulation Of Minors' Access To Harmful Internet Speech, Dawn C. Nunziato

Chicago-Kent Law Review

In this Article, Prof. Nunziato scrutinizes Congress's recent efforts to regulate access to sexually-themed Internet speech. The first such effort, embodied in the Communications Decency Act, failed to take into account the Supreme Court's carefully-honed obscenity and obscenity-for-minors jurisprudence. The second, embodied in the Child Online Protection Act, attended carefully to Supreme Court precedent, but failed to account for the geographic variability in definitions of obscene speech. Finally, the recently-enacted Children's Internet Protection Act apparently remedies the constitutional deficiencies identified in these two prior legislative efforts, but runs the risk of being implemented in a manner that fails to protect …