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.    

No comments: