Academic journal article Texas Law Review

Posting Personal Information on the Internet: A Case for Changing the Legal Regime Created by § 230 of the Communications Decency Act*

Academic journal article Texas Law Review

Posting Personal Information on the Internet: A Case for Changing the Legal Regime Created by § 230 of the Communications Decency Act*

Article excerpt

I. Introduction

Many people, whether they will admit it or not, have "Googled" somebody in their lifetime-searched for someone's name using the popular Internet search engine Google. The resulting hyperlinks often contain a wealth of personal information-addresses, phone numbers, birth dates, background information, public record information, and even satellite photos of people's homes. Search engines are becoming more sophisticated; some even organize this type of information into basic "digital dossiers."1 But the type of objective personal data contained in these dossiers is generally not protected in the United States.2 The lack of legal protection for this type of data has been hotly debated by numerous commentators.3

At the same time, Web sites that allow users to generate or post4 content are booming, and their range is expanding. These sites allow anyone who signs up, which often requires as little as an email address,5 to post practically anything.6 This trend was recently recognized by Time when it named ordinary users ("You") as Person of the Year for 2006 because they are the ones "seizing the reins of the global media" and "founding and framing the new digital democracy."7 This Note refers to Web sites that allow their users to post content as interactive Web sites (IWs).8 Innovation with respect to IWs promises to give rise to issues regarding protection of personal information available on digital search engines and databases. Imagine Web sites where personal information is supplied by users of the sites-interactive personal information Web sites (IPIWs). Searches of user posts could return private, damaging, or false information. Non-Internet publishers are often deterred from and held accountable for publishing such information by defamation and privacy law.9 As many commentators have noted, these protections are narrow and perhaps inadequate,10 but they reflect the balance our society has struck between freedom of speech and the protection of the reputation and privacy of individuals.

The Internet presents a unique situation. For practical purposes, individuals are rarely held liable for illegal Internet postings of private or defamatory information because it is typically burdensome and impractical to pursue individual posters.11 Additionally, Web sites enjoy broad immunity from liability due to courts' expansive interpretation of § 230 of the Communications Decency Act (CDA).12 This allows for an abundance of uncensored and unregulated communication about individuals over the Internet-almost anyone can post defamatory or private information without the threat of liability. The nature and focus of IPIWs exacerbate this problem.13

Social networking sites like Facebook and MySpace are flourishing,14 but these types of IPIWs are not particularly troubling. IPIWs that display individual's personal information posted by others are also developing.15 Some IPIWs organize posted personal information or associate such information with the type of objective personal data mentioned above16 to essentially create "interactive digital dossiers" (IDDs).17 These types of IPIWs have real potential to expose society to widespread harm.18 Existing law does not appear to address IPIWs and the posting of personal information generally.

Current law could be amended to impose liability or regulate either individual users or the IW intermediaries. Focusing on individual users is currently impractical because of the relative anonymity of Internet users, but imposing liability on IW intermediaries and otherwise regulating IWs is both practical and logical. Commentators on this topic noted the trend toward regulation of other Internet intermediaries with approval.19 A modified notice-based liability scheme similar to the scheme present in the Digital Millennium Copyright Act (DMCA)20 for IWs would have socially desirable results. This Note advocates enacting a notice-based liability scheme for IWs. …

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