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Wednesday, May 16, 2012

Contrarian Statutory Interpretation Continued (CDA Edition)

Following my contrarian post about how to read the Computer Fraud and Abuse Act, I thought I would write about the Communication's Decency Act. I've written about the CDA before (hard to believe it has been almost 3 years!), but I'll give a brief summary here.

The CDA provides immunity from the acts of users of online providers. For example, if a user provides defamatory content in a comment, a blog need not remove the comment to be immune, even if the blog receives notice that the content is defamatory, and even if the blog knows the content is defamatory.

I agree with most of my colleagues who believe this statute is a good thing for the internet. Where I part ways from most of my colleagues is how broadly to read  the statute.

Since this is a post about statutory interpretation, I'll include the statute:

Section 230(c)(1) of the CDA states that:

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.

In turn, an interactive computer service is:

any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

Further, an information content provider is:

any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

So, where do I clash with others on this? The primary area is when the operators of the computer service make decisions to publish (or republish) content.  I'll give three examples that courts have determined are immune, but that I think do not fall within the statute:

  1. Web Site A pays Web Site B to republish all of B's content on Site A. Site A is immune.
  2. Web Site A selectively republishes some or all of a story from Web Site B on Site A. Site A is immune.
  3. Web Site A publishes an electronic mail received by a reader on Site A. Site A is immune.

These three examples share a common thread: Site A is immune, despite selectively seeking out and publishing content in a manner that has nothing to do with the computerized processes of the provider. In other words, it is the operator, not the service, that is making publication determinations.

To address these issues, cases have focused on "development" of the information. One case, for example, defines development as a site that "contributes materially to the alleged illegality of the conduct." Here, I agree with my colleagues that development is being defined too broadly to limit immunity. Development should mean that the provider actually creates the content that is displayed. For that reason, I agree with the Roommates.com decision, which held that Roommates developed content by providing pre-filled dropdown lists that allegedly violated the Fair Housing Act. It turns out that the roommate postings were protected speech, but that is a matter of substance, and not immunity. The fact that underlying content is eventually vindicated does not mean that immunity should be expanded. To the extent some think that the development standard is limited only to development of illegal content (something implied by the text of the Roommates.com decision), I believe that is too limiting. The question is the source of the information, not the illegality of it.

The burning issue is why plaintiffs continue to rely on "development" despite its relatively narrow application. The answer is that this is all they currently have to argue, and that is where I disagree with my colleagues. I believe the word "interactive" in the definition must mean something. It means that the receipt of content must be tied to the interactivity of the provider. In other words, receipt of the offending content must be automated or otherwise interactive to be considered for immunity.

Why do I think that this is the right reading? First, there's the word "interactive." It was chosen for a reason. Second, the definition of "information content provider" identifies information "provided through the Internet or any other interactive computer service." (emphasis added). This implies that the provision of information should be based on interactivity or automation.

There is support in the statute for only immunizing information directly provided through interactivity. Section, 230(d), for example, requires interactive service providers to notify their users about content filtering tools. This implies that the information being provided is through the interactive service.  Sections 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.

I think one can read the statute more broadly than I am here. But I also believe that there is no reason to do so. The primary benefit of Section 230 is a cost savings mechanism. There's is no way many service providers can screen all the content on their websites for potentially tortious activity. There's just no filter for that.

Allowing immunity for individualized editorial decisions like paying for syndicated content, picking and choosing among emails, and republishing stories from other web sites runs directly counter to this cost saving purpose.  Complaining that it costs too much to filter interactive user content is a far cry from complaining that it costs to much to determine whether an email is true before making a noninteractive decision to republish it. We should want our service providers to expend some effort before republishing.

Posted by Michael Risch on May 16, 2012 at 04:01 PM in Blogging, Information and Technology | Permalink


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Eric - right. The issue was that access to AOL was not via the internet for most people in 1995 (nor Compu$erve nor Prodigy), so it had to be broader than just website. But that said, even if it were "website" or "online service" I think one can make an argument that AOL selectively picking email and publishing it on its site was not part of the immunization plan. The point was to avoid distributor liability if the provider decided to take one thing down but leave another thing up, not to avoid publisher liability if the provider decided to put something up at its own choice. Reasonable minds can differ on that, obviously. At least I hope so, because I know you are reasonable so I don't know where that leaves me...

As for stirring the pot - I usually guest in April. I don't know what I was thinking signing up for May.

Posted by: Michael Risch | May 16, 2012 5:40:31 PM

What's more fun than stirring the pot on a subject near-and-dear to some of us as a tactic to avoid grading finals?

Only one small comment from me: the term "interactive computer service" comes directly from AOL, which is how it described its online service at the time. Congress could have--and probably should have--used the term "website" or "online service" to describe the immunized entities. Websites existed in 1995, although it still wasn't 100% clear at the time that websites would beat the commercial online services. But because Congress didn't, they used the next available term, "interactive computer service." Ascribing greater semantic import to that terminology choice would be a mistake IMO. Eric.

Posted by: Eric Goldman | May 16, 2012 5:31:49 PM

Bruce - I agree, which is why I can see the other side. However, even with the definition, it need not be read so broadly. The purpose for the statute (which is codified!) talks about use of interactive media and user control over information. Further, the definitions all relate to user provision and control: user access to servers, "access software" that allows users to pick, choose, organize, etc. 230(d) also requires notification of features to limit user access to the interactive service, which implies that content is delivered to and from the users, not via intermediaries by operators.

Posted by: Michael Risch | May 16, 2012 5:08:17 PM

Michael, I like your argument but I'm not sure it works. The only place the word "interactive" appears is in the name of the defined term. It doesn't actually appear in the definition. Although courts are often swayed by the identifier of the definition, I think that's bad practice, as the identifier is just a placeholder. Congress could equally validly have defined "squishy yellow thing" as "any information service, system, or access software provider ..." etc. This wouldn't limit the relevant information service providers to only squishy ones.

Posted by: Bruce Boyden | May 16, 2012 4:27:17 PM

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