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Tuesday, June 30, 2009

Reinterpreting Section 230

My last post identified several puzzling results of current Section 230 jurisprudence, such as immunity for articles written by freelancers, but not by employees.  A common suggestion to remedy this and other conflicts is to withdraw immunity for any and all publication decisions by provider.  Thus, providers are liable if they reprint an email - they decided to publish.  They are also liable for the freelance article - they hired a contractor to provide content.

This is arguably within the ambit of the statute.  The immunity only extends to "information provided by another information content provider."  An information content provider, in turn, is "any person or entity that is responsible, in whole or in part, for the creation or development of information."

Under this proposal, the decision to publish something (or hiring someone else to provide it) constitutes "responsibility...in part, for the creation or development."  This makes the provider a partial information content provider, and thus the published information is not solely from "another."  This is the theory used in the Roommates.com case to deny immunity where the information users provide is in response to a provider written survey that suggests particular answers.

There's only one problem with this proposal - it's directly contrary to the statute's goals and language. See why after the jump.

As I noted in my first post in this series, Section 230 was enacted to remedy the costs associated with potential liability for editing and publishing decisions. This is reflected in the statute a couple of ways.  First, 230(c)(2)(A) immunizes "any action voluntarily taken in good faith to restrict access to or availability of material..." so that the chooosing whether to publish or not to publish something is immunized.  Further, "access software providers" that have tools to "pick" and "choose" content are immunized.  230(f)(4)(B).  Finally, the core immunization states that no provider shall be treated as a "publisher," and choosing content is exactly what a publisher does.

As a policy matter, I like to use blog comments as an example.  Some blogs allow the provider to deleted comments after they have been posted.  Others hide comments until the provider approves the comment for posting.  The statutory interpretation discussed above would immunize providers that delete after the fact, but not providers that approve comments for publication.  Something seems intuitively wrong with that distinction.  Further, holding those that approve comments liable would impose tremendous investigation costs, the very costs that the statute was written to eliminate.

There is, however, a better way, and the answer lies in a mostly ignored portion of the statute: interactivity.  Only providers (and users) of an interactive computer service are immune.  An interactive computer service "provides or enables computer access by multiple users to a computer server..."  This is, of course, quite broad - the statute specifically includes internet service providers, for example.

However, it stands to reason that the information at issue must be provided pursuant to the interactivity of the service.  The statute does not make this explicit, but to find otherwise would lead to an absurd result.  Newspapers would be immune for things they print because they also have a website, for example. 

There is support in the statute for only immunizing information directly provided through the interactive service. 230(d), for example, requires interactive service providers to notify their users about content filtering tools (I wonder how many sites seeking immunity actually do so). This implies that the information being provided is through the interactive service.  230(a) and (b) describe the findings and policy of Congress, which describe interactive services as new ways for users to control information and for free exchange of ideas.

Focusing on interactivity of the service clears up the conflicts discussed in my last post while still allowing free discourse on the internet. Blog comments are immunized regardless of filtering.  Freelance articles are not immunized, but user provided articles are.  AOL could have been liable for Drudge's statements, but information aggregators that gather news from a variety of sources automatically would be immune. Email listservs would be protected, but selecting a single email (not sent to an automated system) to republish would not be.  ISP's would still be protected for everything, as the "interactivity" of their service is simply providing the access.

I believe that this is how the statute was intended to work, and this is how I think it should work. The cost minimization policy makes great sense when you focus on the purposes of the statute. Providers who choose to republish content outside the auspices of the functioning of their service can do so cheaply - at least as cheaply as offline publishers.  Those who republish content as part of their service, however, are not required to shoulder the additional costs of policing all of the potential contributors to content.

In my next, and last, post in this series, I'll tackle a couple more policy issues that a slightly different interpretation of Section 230 would clear up.

Posted by Michael Risch on June 30, 2009 at 10:28 AM in Legal Theory | Permalink

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