The Never-Ending Limits of (Section) 230: Extending ISP Immunity to the Sexual Exploitation of Children

Article excerpt

I.   SECTION 230 IMMUNITY
     A. Congress's Intent in Enacting [section] 230
     B. The Seminal [section] 230 Case and Its Enduring Effects
II.  A CASE FOR CHANGING THE [section] 230 LEGAL REGIME TO
     PROTECT MINORS ONLINE
     A. The Current State of the Law Under [section] 230
     B. A Multi-Faceted Approach
III. FOUR WAYS TO CURB THE EXTENSION OF [section] 230 IMMUNITY
     IN CASES WHERE ISPS KNOWINGLY ALLOW THE SEXUAL
     EXPLOITATION OF CHILDREN ON THEIR SITES
     A. A Congressional Amendment to [section] 230
     B. Courts Should Distinguish Zeran and Refuse to Apply
        its Defamation Rationale to Child Sexual Exploitation
        Claims
     C. Courts Should Recognize that Extending Immunity to
        ISPs in Child Sexual Exploitation Cases Produces a
        Result that is Inconsistent with the Original Policy
        Objectives of Congress in Enacting [section] 230
        1. Imposing the Proposed Liability Will Not Squelch
           the Growth of the Interact or Create Disincentives
           for Its Development
        2. Imposing the Proposed Liability Will Not Result
           in an Infeasible Policing of the Internet
        3. Imposing the Proposed Liability Will Not
           Inundate the ISPs with Lawsuits
     D. Courts Should Not Extend [section] 230 Immunity to a Civil
        Claim Based on a Violation off [section] 2252A            "
        1. The Exception to [section] 230 Immunity Provided by [section]
           230(e)(1) and Title 18 U.S.C. [section] 2252A
        2. Plaintiffs' Unsuccessful Attempt in Doe v. Bates
           to Bring a Civil Claim Under [section] 230 Based on an
           Alleged Violation of Title 18 U.S.C. [section] 2252A
IV.  CONCLUSION

I. SECTION 230 IMMUNITY

Minors are not safe on the Internet under the current legal regime. Society's obligation to protect its children from sexual predators, wherever they operate, (1) has been hindered by recent judicial determinations, which have held that certain Internet sites are not liable for failing to protect minors from sexual exploitation (2) or assault. (3) These judicial interpretations have rendered Internet Service Providers (ISPs) virtually judgment proof even when they knowingly allow the sexual exploitation of children on their sites.

Section 230 of the Communications Decency Act (CDA) provides immunity (4) to ISPs. (5) It bars claims against ISPs based on the publication of third-party content. Defendants are immune from liability from state law claims if:

(1) [They are] a "provider or user of an interactive computer service";

(2) the claim is based on "information provided by another information content provider"; and (3) the claim would treat [the Defendants] "as publisher or speaker" of that information. (6)

There is, however, an exception to this immunity given in [section] 230(e). (7) It provides: "[n]othing in this section shall be construed to impair the enforcement of section 223 or 231 of this Act, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, United States Code, or any other Federal criminal statute." (8)

If civil liability is imposed on Web sites such as Yahoo!, [section] 230 immunity provides that it must be imposed on the individual posters of content. (9) Courts have typically held that [section] 230 grants ISPs complete immunity from both publisher and distributor liability. (10) As a result, ISPs including Web sites such as Yahoo!, Google, and MySpace enjoy a "robust" immunity from civil liability under [section] 230 of the CDA. (11) The extension of CDA immunity under [section] 230 in recent judicial decisions has served to protect ISPs at the expense of the safety of minors. Courts have missed an opportunity to finally curb the extension of [section] 230 immunity, and instead, further extended immunity to ISPs who knowingly violate criminal law. …