Friday, December 06, 2013
Law journal article ("book") from 2009 on Section 230 immunity looks important now, given recent proposals to weaken it
It may be a little unfair to call this a “book”, but I
thought I would discuss briefly a detailed article by Katy Noeth at the Indiana
University Mauer School of Law, published in the “Federal Communications Law
Journal”, Vol. 1, Iss 3, Article 9, 2009 (20 pages), with the recommended link
here.
The paper can be purchased on Amazon, but can be found
online free.
The author takes the general position that the legal climate
in the United States is not adequate to protect minors in practice from criminal
behavior on the Internet, particularly the possibility of trafficking.
She says quickly that Section 230 of the 1996
Telecommunications Act (the “Communications Decency Act”, the censorship
portions of which were overturned by the Supreme Court in 1997) may prevent the public
from being able to expect supposedly deep-pocketed service providers from
taking precautions to protect vulnerable children, especially those of less well-informed
parents. The general reason for this
exemption is that service providers cannot reasonably review all user content
before posting for possible legal problems.
In this sense, service providers are like utilities rather than
publishers or commercial distributors.
But she quickly points out that there already is an “exception”, when it
comes to enforcing United States Code in criminal matters (like child
pornography). But usually liability
occurs only when the provider knows that the law is being broken in the normal
course of business.
Recently there has been a proposal from the Association of
State Attorneys General to extend the Section 230 exemption to state law.
Noeth traces the immediate aftermath of Section 230, in the
case of Zeran v. America Online. Zeran
had claimed that AOL had a duty to screen all material for defamatory content,
but the Fourth Circuit disagreed (in 1997) because of Section 230.
A more testing case occurred on Yahoo! In 2006 with the
“Candyman” case, where the author notes that Yahoo! apparently knew or strongly
suspected that minors could exploited by a particular customer. Later there would be a case called “Doe v.
MySpace” where apparently the litigation did not even try to claim that MySpace
was a “publisher”.
Noeth recommends several seemingly moderate solutions to the
problem. She thinks that the criminal
exemptions could be more specific (like child pornography or
trafficking {FOSTA}), and that Congress should draw a distinction in the law between child
exploitation and defamation (which is much broader). She specifically says that such a specific
provision would not cause service providers to have to “police” content
generators and account holders. She also says that it would not lead to abusive
litigation.
One point that Noeth stresses is a “knowing” standard. ISP’s or service providers (or bloggers
hosting comments or large forums) would not be responsible for items they did
not know about -- I suppose there could
be a question as to whether a moderator of a large forum could read every
posting and know what is going on. AOL’s
forums back in the 1990s were very large.
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