Section 230: An Overview

Congressional research reportJan 4, 2024

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R46751

SUMMARY

Section 230: An Overview

Section 230 of the Communications Act of 1934, enacted as part of the Communications

Decency Act of 1996, provides limited federal immunity to providers and users of interactive

computer services. The statute generally precludes providers and users from being held liable—

that is, legally responsible—for information provided by another person, but does not prevent

them from being held legally responsible for information that they have developed or for

activities unrelated to third-party content. Courts have interpreted Section 230 to foreclose a wide

variety of lawsuits and to preempt laws that would make providers and users liable for third-party

content. For example, the law has been applied to protect online service providers like social

media companies from lawsuits based on their decisions to transmit or take down user-generated

content.

R46751

January 4, 2024

Valerie C. Brannon

Legislative Attorney

Eric N. Holmes

Attorney-Adviser

(Constitution Annotated)

Two provisions of Section 230 are the primary framework for this immunity. First, Section 230(c)(1) specifies that service

providers and users may not “be treated as the publisher or speaker of any information provided by another information

content provider.” In Zeran v. America Online, Inc., an influential case interpreting this provision, a federal appeals court said

that Section 230(c)(1) bars “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional

editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.” Second, Section 230(c)(2)

states that service providers and users may not be held liable for voluntarily acting in good faith to restrict access to “obscene,

lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” material. Section 230(c)(2) is thus more

limited: it applies only to good-faith takedowns of objectionable material, while courts have interpreted Section 230(c)(1) to

apply to both distribution and takedown decisions.

Section 230 contains statutory exceptions. This federal immunity generally will not apply to suits brought under federal

criminal law, intellectual property law, any state law “consistent” with Section 230, certain privacy laws applicable to

electronic communications, or certain federal and state laws relating to sex trafficking.

Government officials and outside commentators have debated the proper scope of Section 230. While the law has a number

of defenders, others have argued that courts have interpreted Section 230 immunity too broadly. Recent Congresses have

seen a number of bills that would have amended the scope of Section 230 immunity. These proposals ranged from outright

repeal, to placing certain conditions on immunity, to creating narrower exceptions allowing certain types of lawsuits. Some

bills sought to amend the scope of Section 230(c)(1), limiting “publisher” immunity in an attempt to encourage sites to take

down certain types of undesirable content. Others sought to encourage sites to host more content by narrowing immunity for

certain types of takedown decisions.

Proposals to amend Section 230 may raise two distinct types of First Amendment issues. The first issue is whether any given

proposal infringes the constitutionally protected speech of either providers or users. This concern may be especially acute if a

proposal restricts providers’ editorial discretion or creates content- or viewpoint-based distinctions. The second issue is

whether, if Section 230 is repealed in whole or in part, the First Amendment may nonetheless prevent private parties or the

government from holding providers liable for publishing content. The First Amendment might prevent some claims premised

on decisions to host or restrict others’ speech, but its protections are likely less extensive than the current scope of Section

230 immunity.

Congressional Research Service

Section 230: An Overview

Contents

Text and Legislative History ........................................................................................................... 1

Section 104: Online Family Empowerment .............................................................................. 5

Stratton Oakmont, Inc. v. Prodigy Services Co. ........................................................................ 6

Judicial Interpretation ...................................................................................................................... 8

Section 230(c)(1): Publisher Activity ........................................................................................ 9

Early Interpretations: Zeran v. America Online, Inc. .......................................................... 9

Service Provider Role as Publisher .................................................................................... 11

Information Provided by Another Information Content Provider ..................................... 16

Algorithmic Sorting and Promotion.................................................................................. 19

Section 230(c)(2)(A): Restricting Access to Objectionable Material...................................... 21

Good Faith ........................................................................................................................ 22

Objectionable Material...................................................................................................... 23

Section 230(c)(2)(B): Enabling Access Restriction ................................................................ 24

Section 230(e): Exceptions ..................................................................................................... 26

Federal Criminal Law ....................................................................................................... 27

Intellectual Property Law.................................................................................................. 27

State Law .......................................................................................................................... 29

Electronic Communications Privacy Act of 1986 ............................................................. 30

Sex Trafficking Law (FOSTA).......................................................................................... 30

Reform Proposals and Considerations for Congress ..................................................................... 32

Overview of Reform Proposals and Select Legal Considerations .......................................... 32

Liability for Hosting Content ............................................................................................ 34

Liability for Restricting Content ....................................................................................... 37

Free Speech Considerations .................................................................................................... 39

Background Principles ...................................................................................................... 40

First Amendment Issues with Reform Proposals .............................................................. 43

Comparing the Operation of First Amendment and Section 230 Protections ................... 49

Contacts

Author Information........................................................................................................................ 51

Congressional Research Service

Section 230: An Overview

n 1996, Congress passed a suite of measures to amend the Communications Act of 1934 in

order to protect children on the internet. The new measures were known collectively as the

Communications Decency Act (CDA).1 Some portions of the CDA directly imposed liability

for transmitting obscene or harassing material online,2 including two provisions that the Supreme

Court struck down as unconstitutional in 1997.3 The CDA’s new Section 230 of the

Communications Act4 took a different approach.5 It sought to allow users and providers of

“interactive computer services” to make their own content moderation decisions, while still

permitting liability in certain limited contexts.6

Since its passage, federal courts have interpreted Section 230 as creating expansive immunity for

claims based on third-party content that appears online.7 Consequently, internet companies and

users frequently rely on Section 230’s protections to avoid liability in federal and state litigation.

But in recent years, commentators and jurists have expressed concern that the broad immunity

courts have recognized under Section 230 is beyond the law’s intended scope.8

This report explores the origins, current application, and future of Section 230. It first discusses

the history and passage of Section 230 and the CDA. The report then analyzes how courts have

applied Section 230 in litigation. The report concludes with a discussion of proposed reforms to

Section 230 and legal considerations relevant to reform efforts.

This report focuses on Section 230 protections from liability and does not more broadly address

the potential liability other laws may impose for hosting or restricting others’ content.9 This report

also does not discuss the possible international trade implications of amending Section 230.10

Text and Legislative History

Congress enacted the CDA as part of the Telecommunications Act of 1996.11 According to the

conference report, the CDA as a whole was intended to “modernize the existing protections

1 Pub. L. No. 104-104, Tit. V, 110 Stat. 133 (1996).

2 E.g., 47 U.S.C. § 223(d).

3 Reno v. ACLU, 521 U.S. 844, 882 (1997).

4 47 U.S.C. § 230. Although Section 230 is sometimes referred to as “Section 230 of the CDA” or “CDA Section 230,”

“Section 230” more accurately refers to the statute’s place in the Communications Act.

5 141 CONG. REC. H8470 (daily ed. Aug. 4, 1995) (statement of Rep. Ron Wyden) (noting that the approach of Section

230 stands “in sharp contrast to the work of the other body,” which sought “to try to put in place the Government rather

than the private sector about this task of trying to define indecent communications and protecting our kids”).

6 See 47 U.S.C. § 230(b) (expressing a deregulatory policy goal); id. § 230(e) (providing limited exceptions).

7 See, e.g., Zeran v. Am. Online, Inc. 129 F.3d 327, 330–31 (4th Cir. 1997).

8 See, e.g., Force v. Facebook, Inc., 934 F.3d 53, 84 (2d Cir. 2019) (Katzmann, J., concurring in part) (opining that

Section 230 as applied creates “extensive immunity . . . for activities that were undreamt of in 1996” and “[i]t therefore

may be time for Congress to reconsider the scope of § 230”); Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC,

141 S. Ct. 13, 14–15 (2020) (Thomas, J., statement respecting the denial of certiorari) (positing that the “modest

understanding” of what Section 230 is meant to do based on its text “is a far cry from what has prevailed in court”); 1

R. SMOLLA, LAW OF DEFAMATION § 4.86 (2d ed. 2019) (“[C]ourts have extended the immunity in § 230 far beyond

anything that plausibly could have been intended by Congress.”).

9 See, e.g., Twitter, Inc. v. Taamneh, 143 S. Ct. 1206 (2023) (holding that social media platform was not liable for

claims brought under the Anti-Terrorism Act irrespective of whether the platform was eligible for protection under

Section 230). Whether a plaintiff has stated a legally actionable claim will depend on the particular claim alleged and

the facts present in each case—issues that are outside the scope of this report.

10 The legal aspects of this issue are discussed briefly in CRS Legal Sidebar LSB10484, UPDATE: Section 230 and the

Executive Order on Preventing Online Censorship, by Valerie C. Brannon et al.

11 Pub. L. No. 104-104, § 501, 110 Stat. 133–43 (1996).

Congressional Research Service

Section 230: An Overview

against obscene, lewd, indecent or harassing uses of a telephone.”12 Since its enactment in 1996,13

Section 230 has been amended twice: once to add a new obligation for interactive computer

services to notify customers about parental control protections,14 and once to create an exception

for certain civil and criminal cases involving prostitution or sex trafficking.15

Section 230 contains findings16 and policy statements,17 expressing, among other things, that

Congress sought to promote the free development of the internet, while also “remov[ing]

disincentives” to implement “blocking and filtering technologies” that restrict “children’s access

to . . . inappropriate online material”18 and “ensur[ing] vigorous enforcement of Federal criminal

laws to deter and punish trafficking in obscenity, stalking, and harassment” online.19 The heart of

Section 230, however, is arguably the immunity created in subsection (c):

MATERIAL.—

(1) TREATMENT OF PUBLISHER OR SPEAKER.—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.

(2) CIVIL LIABILITY.—No provider or user of an interactive computer service shall be

held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability

of material that the provider or user considers to be obscene, lewd, lascivious, filthy,

excessively violent, harassing, or otherwise objectionable, whether or not such

material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers

or others the technical means to restrict access to material described in [subparagraph

(A)].20

Thus, Section 230(c) contains two distinct provisions that together create a broad immunity from

suit for a “provider or user of an interactive computer service.” Section 230(c)(1) specifies that

service providers may not “be treated as the publisher or speaker of any information provided by

12 S. REP. NO. 104-23, at 59 (1995); see also id. (“The decency provisions increase the penalties for obscene, indecent,

harassing or other wrongful uses of telecommunications facilities; protect privacy; protect families from uninvited and

unwanted cable programming which is unsuitable for children and give cable operators authority to refuse to transmit

programs or portions of programs on public or leased access channels which contain obscenity, indecency, or nudity.”).

The Supreme Court struck down some of these provisions as unconstitutional in Reno v. ACLU, 521 U.S. 844, 882

(1997).

13 Pub. L. No. 104-104, § 509, 110 Stat. 137–39 (1996).

14 Pub. L. No. 105-277, § 1404, 112 Stat. 2681-739 (1998). This 1998 law also amended 47 U.S.C. § 230(e)(1) to

clarify that Section 230 should not be construed to impair the enforcement of 47 U.S.C. § 231, a new provision created

by the 1998 law. Id.

15 Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA), Pub. L. No. 115-164, § 4, 132 Stat.

1253 (2018). FOSTA also created criminal and civil liability for owning, managing, or operating an interactive

computer service “with the intent to promote or facilitate the prostitution of another person . . . .” Id. § 3.

16 47 U.S.C. § 230(a).

17 Id. § 230(b).

18 Id. § 230(b)(4).

19 Id. § 230(b)(5).

20 Id. § 230(c). Courts have read 47 U.S.C. § 230(c)(2)(B)’s reference to “paragraph (1)” to mean § 230(c)(2)(A). E.g.

Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1173 n.5 (9th Cir. 2009) (“We take it that the reference to the

‘material described in paragraph (1)’ is a typographical error, and that instead the reference should be to paragraph (A),

i.e., § 230(c)(2)(A). . . . Paragraph (1) pertains to the treatment of a publisher or speaker and has nothing to do with

‘material,’ whereas subparagraph (A) pertains to and describes material.”) (citation omitted).

Congressional Research Service

Section 230: An Overview

another information content provider,”21 while Section 230(c)(2) ensures that service providers

may not be held liable for voluntarily acting to restrict access to objectionable material.22

Both “interactive computer service” and “information content provider” are statutorily defined

terms.23 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.”24 In a

computer network, a server is generally the hardware or software that provides a service, such as

transmitting information, to another piece of hardware or software called the client. Courts have

accordingly interpreted “interactive computer service” broadly.25 They have considered online

service providers such as Google,26 Facebook,27 Amazon,28 and Craigslist29 to be “interactive

computer service” providers.30 Given the breadth of this definition, courts have also concluded

that it extends to companies that provide broadband internet access31 or web hosting.32 Most

litigation has focused on online service providers, but the definition can include services

providing access to private servers33 and brick-and-mortar entities such as libraries34 or

employers35 who provide computer access.36

21 47 U.S.C. § 230(c)(1).

22 Id. § 230(c)(2).

23 Id. § 230(f). For more information on “online platforms” more generally, see CRS Report R47662, Defining and

Regulating Online Platforms, coordinated by Clare Y. Cho.

24 47 U.S.C. § 230(f)(2).

25 See, e.g., Ricci v. Teamsters Union Local 456, 781 F.3d 25, 27–28 (2d Cir. 2015) (observing that the definition of

interactive computer service “has been construed broadly to effectuate the statute’s speech-protective purpose”);

Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003) (observing that reviewing courts have

“adopt[ed] a relatively expansive definition of ‘interactive computer service’”); IAN C. BALLON, 4 E-COMMERCE &

INTERNET LAW 37.05[2] (2020 update) (“[A]lmost any networked computer service would qualify as an interactive

computer service, as would an access software provider.”).

26 E.g., Marshall’s Locksmith Serv. v. Google, LLC, 925 F.3d 1263, 1268 (D.C. Cir. 2019).

27 E.g., Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014).

28 E.g., Erie Ins. Co. v. Amazon.com, Inc., 925 F.3d 135, 139 (4th Cir. 2019).

29 Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008).

30 See also Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007) (“Providing access to the

Internet is . . . not the only way to be an interactive computer service provider.”).

31 See e360Insight, LLC v. Comcast Corp., 546 F. Supp. 2d 605, 607 (N.D. Ill. 2008); see also, e.g., Winter v. Bassett,

No. 1:02CV00382, 2003 WL 27382038, at *6 (M.D.N.C. Aug. 22, 2003) (concluding Section 230 protects Verizon and

AT&T as interactive computer service providers).

32 Ricci v. Teamsters Union Local 456, 781 F.3d 25, 28 (2d Cir. 2015); see also, e.g., Gucci Am., Inc. v. Hall &

Assocs., 135 F. Supp. 2d 409, 412 (S.D.N.Y. 2001) (describing Mindspring, a web hosting service, as an “interactive

computer service”).

Cf., e.g., Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1175 (9th Cir. 2009) (rejecting argument that definition

includes only services that enable “people to access the Internet or access content found on the Internet”); In re Zoom

Video Commc’ns Privacy Litig., 525 F. Supp. 3d 1017, 1030 (N.D. Cal. 2021) (ruling the definition “does not

recognize a public/private distinction”).

34 The statute specifically provides that the definition includes “such systems operated or services offered by libraries

or educational institutions.” 47 U.S.C. § 230(f)(2). See, e.g., Kathleen R. v. City of Livermore, 104 Cal. Rptr. 2d 772,

777 (Cal. Ct. App. 2001) (“Respondent provides an ‘interactive computer service’ in this case because its library

computers enable multiple users to access the Internet.”).

35 E.g., Miller v. Fed. Express Corp., 6 N.E.3d 1006, 1017 (Ct. App. Ind. 2014).

36 Section 230 applies to both providers and users of interactive computer services. Some courts have opined that

website operators are themselves users of interactive computer services (such as internet access service) and therefore

are entitled to Section 230’s protection regardless of whether the website in question provides an interactive computer

service. See, e.g., Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003).

Congressional Research Service

Section 230: An Overview

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.”37 Thus, Section 230 distinguishes those who create content from

those who provide access to that content, providing immunity from suit to the latter group.38 An

entity may be both an “interactive computer service” provider and an “information content

provider,” but the critical inquiry for applying Section 230’s immunity provisions is whether the

service provider developed the content that is the basis for liability.39

Section 230(e) contains “exceptions” to the law’s immunity provision:40

(e) EFFECT ON OTHER LAWS.—

(1) NO EFFECT ON CRIMINAL LAW.—Nothing in this section shall be construed to

impair the enforcement of section 223 or 231 of this title, 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.

(2) NO EFFECT ON INTELLECTUAL PROPERTY LAW.—Nothing in this section shall be

construed to limit or expand any law pertaining to intellectual property.

(3) STATE LAW.—Nothing in this section shall be construed to prevent any State from

enforcing any State law that is consistent with this section. No cause of action may be

brought and no liability may be imposed under any State or local law that is inconsistent

with this section.41

(4) NO EFFECT ON COMMUNICATIONS PRIVACY LAW.—Nothing in this section shall

be construed to limit the application of the Electronic Communications Privacy Act of 1986

or any of the amendments made by such Act, or any similar State law.

(5) NO EFFECT ON SEX TRAFFICKING LAW.—Nothing in this section (other than

subsection (c)(2)(A)) shall be construed to impair or limit:

(A) any claim in a civil action brought under section 1595 of Title 18, if the

conduct underlying the claim constitutes a violation of section 1591 of that title;

(B) any charge in a criminal prosecution brought under State law if the conduct

underlying the charge would constitute a violation of section 1591 of Title 18; or

underlying the charge would constitute a violation of section 2421A of Title 18, and

promotion or facilitation of prostitution is illegal in the jurisdiction where the

defendant's promotion or facilitation of prostitution was targeted. 42

Courts have interpreted the language providing that Section 230 will not “limit” or “impair the

enforcement of” other laws as creating “exceptions” to Section 230.43 As one court reasoned, if

intellectual property laws would impose liability on a provider, then applying Section 230 to bar

that lawsuit “would ‘limit’ the laws pertaining to intellectual property in contravention of

37 47 U.S.C. § 230(f)(3).

38 See id. § 230(c), (f).

39 See, e.g., Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1174 (9th Cir. 2008) (en banc).

40 E.g., Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007) (“[Plaintiff] has attempted to

plead around that immunity . . . by asserting causes of action that purportedly fall into one of the statutory exceptions to

Section 230 immunity.” (emphasis added)).

41 In contrast to the exceptions created by most of subsection (e), courts have read the second sentence of Section

230(e)(3) to “preempt contrary state law.” E.g., Doe v. GTE Corp., 347 F.3d 655, 658 (7th Cir. 2003).

42 47 U.S.C. § 230(e).

43 See, e.g., Universal Commc’n Sys., Inc., 478 F.3d at 418.

Congressional Research Service

Section 230: An Overview

§ 230(e)(2).”44 Accordingly, Section 230 immunity generally will not apply to suits brought under

federal criminal law,45 intellectual property law,46 any state law “consistent” with Section 230,47

certain electronic communications privacy laws,48 or certain federal and state laws relating to sex

trafficking.49

Section 104: Online Family Empowerment

Representatives Cox and Wyden offered the provision that would become Section 230 as Section

104 of House Bill 1555,50 an amendment to the House version of the CDA titled “Online Family

Empowerment.”51 Representative Cox stated that Section 104 would serve two purposes:

First, it will protect computer Good Samaritans, online service providers, anyone who

provides a front end to the Internet, let us say, who takes steps to screen indecency and

offensive material for their customers. It will protect them from taking on liability . . . .

Second, it will establish as the policy of the United States that we do not wish to have

content regulation by the Federal Government of what is on the Internet . . . .52

Many of those who spoke in favor of this amendment on the floor of the House argued that it

would allow private parties, in the form of parents and internet service providers, to regulate

offensive content, rather than the FCC.53 In particular, then-Representative Wyden emphasized

that “parents and families are better suited to guard the portals of cyberspace and protect our

44 Gucci Am., Inc. v. Hall & Assocs., 135 F. Supp. 2d 409, 413 (S.D.N.Y. 2001).

45 47 U.S.C. § 230(e)(1).

Id. § 230(e)(2). As discussed in more detail below, courts have disagreed about whether this exception includes only

federal laws, or state laws as well. Infra “Intellectual Property Law.”

47 47 U.S.C. § 230(e)(3).

48 Id. § 230(e)(4).

49 Id. § 230(e)(5).

50 H.R. 1555, 104th Cong. (1995).

51 See 141 CONG. REC. H8468 (daily ed. Aug. 4, 1995).

52 See Id. (statement of Rep. Christopher Cox). See also, e.g., Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122

(9th Cir. 2003) (“Congress enacted this provision as part of the Communications Decency Act of 1996 for two basic

policy reasons: to promote the free exchange of information and ideas over the Internet and to encourage voluntary

monitoring for offensive or obscene material.”); Zeran v. Am. Online, Inc., 129 F.3d 327, 330–31 (4th Cir. 1997)

(“Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep

government interference in the medium to a minimum. . . . Another important purpose of § 230 was to encourage

service providers to self-regulate the dissemination of offensive material over their services.”).

53 See 141 CONG. REC. H8470 (daily ed. Aug. 4, 1995) (statement of Rep. Christopher Cox) (“[W]e do not wish to have

a Federal Computer Commission with an army of bureaucrats regulating the Internet because frankly the Internet has

grown up to be what it is without that kind of help from the Government.”); id. at H8470 (statement of Rep. Joe

Barton) (arguing this amendment provides “a reasonable way to . . . help [service providers] self-regulate . . . without

penalty of law”); id. at H8471 (statement of Rep. Rick White) (arguing the responsibility for “protect[ing children]

from the wrong influences on the Internet” should lie with parents instead of federal government); id. at H8471

(statement of Rep. Zoe Lofgren) (arguing that amendment should be adopted to “preserve . . . open systems on the

Net”); id. at H8471 (statement of Rep. Bob Goodlatte) (“The Cox-Wyden amendment is a thoughtful approach to keep

smut off the net without government censorship.”). Some have questioned whether the text of the amendment, in fact,

prevented the federal government from regulating the Internet. See Robert Cannon, The Legislative History of Senator

Exon’s Communications Decency Act: Regulating Barbarians on the Information Superhighway, 49 FED. COMM. L.J.

51, 68 (1996) (“The opposition [to the Senate version of the CDA] proclaimed that the Cox/Wyden Amendment

forbade FCC regulation of the Internet; it did not. The opposition claimed that it preempted state regulation of the

Internet; it did not.”) (citations omitted).

Congressional Research Service

Section 230: An Overview

children than our Government bureaucrats,” and argued against federal censorship of the

Internet.54

The conference report echoed these concerns:

This section provides “Good Samaritan” protections from civil liability for providers or

users of an interactive computer service for actions to restrict or to enable restriction of

access to objectionable online material. One of the specific purposes of this section is to

overrule Stratton-Oakmont v. Prodigy and any other similar decisions which have treated

such providers and users as publishers or speakers of content that is not their own because

they have restricted access to objectionable material. The conferees believe that such

decisions create serious obstacles to the important federal policy of empowering parents to

determine the content of communications their children receive through interactive

computer services.55

As originally introduced and passed by the House, Section 104 also contained a section stating

that the CDA should not be construed “to grant any jurisdiction or authority” to the Federal

Communications Commission (FCC) to regulate the Internet.56 However, this language was

removed during the conference committee on the bill.57

Stratton Oakmont, Inc. v. Prodigy Services Co.

As observed on the floor of the House58 and in the conference report,59 the amendment that would

become Section 230 sought to overturn the result in Stratton Oakmont, Inc. v. Prodigy Services

Co., a 1995 New York state trial court decision.60 The plaintiff in that case had sued Prodigy for

libel—that is, defamation in written form.61 Although Prodigy, an internet service provider,62 had

not itself made the allegedly libelous statements, the plaintiff alleged that Prodigy was legally

responsible for publishing those statements because it hosted the message boards on which the

statements were posted.63 Prodigy’s liability depended on a determination that the company was a

“publisher,” because under ordinary principles of defamation law, a publisher like a newspaper

“who repeats or otherwise republishes a libel is subject to liability as if he had originally

54 141 CONG. REC. H8470 (daily ed. Aug 4, 1995) (statement of Rep. Ron Wyden).

55 S. REP. NO. 104-230, at 194 (1996).

56 See H.R. REP. NO. 104-223, at 29 (1995); 141 CONG. REC. H8469 (daily ed. Aug. 4, 1995); 141 CONG. REC. H9988

(daily ed. Oct. 12, 1995).

57 See S. REP. NO. 104-230, at 86–87 (1996). For more information on conference committees, see CRS Report 98-696,

Resolving Legislative Differences in Congress: Conference Committees and Amendments Between the Houses, by

Elizabeth Rybicki.

58 141 CONG. REC. H8469–70 (daily ed. Aug. 4, 1995) (statement of Rep. Christopher Cox).

59 S. REP. NO. 104-230, at 194 (1996).

Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995). In

contrast, Representative Cox noted approvingly a federal trial court decision holding that CompuServe could not be

held liable for allegedly defamatory statements that were posted on an internet forum over which it exercised no

editorial control. 141 CONG. REC. H8469 (daily ed. Aug. 4, 1995) (statement of Rep. Christopher Cox); Cubby, Inc. v.

CompuServe, Inc., 776 F. Supp. 135, 140 (S.D.N.Y. 1991).

61 Stratton Oakmont, Inc., 1995 WL 323710, at *1.

62 Prodigy was “a consumer-oriented online service” that allowed users to “trade emails, participate in online message

board discussions, read the daily news, shop for mail-order items, check the weather, stocks, sports scores, play games,

and more.” Benj Edwards, Where Online Services Go When They Die, THE ATLANTIC (July 12, 2014),

https://www.theatlantic.com/technology/archive/2014/07/where-online-services-go-when-they-die/374099. “It was

very much like a microcosm of the modern Internet—if the entire World Wide Web was published by a single

company.” Id.

63 See Stratton Oakmont, Inc., 1995 WL 323710, at *2.

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Section 230: An Overview

published it.”64 By contrast, speech “distributors” such as libraries or newsstands may be held

liable for circulating publications that contain defamatory statements only if they know or have

reason to know of the defamatory statements.65 A 1991 decision from a federal trial court, Cubby

v. CompuServe, Inc., applied this notice-based distributor liability to another early internet service

provider, CompuServe, that the court determined was sufficiently similar to a newsstand.66

The plaintiffs in Stratton Oakmont argued that Prodigy should be considered a publisher rather

than a distributor because it “held itself out as an online service that exercised editorial control

over the content of messages posted on its computer bulletin boards.”67 Prodigy argued in

response that it was more like a bookstore or newsstand than a newspaper, citing Cubby and

claiming that it did not exercise “sufficient editorial control over its computer bulletin boards to

render it a publisher” of the allegedly unlawful material.68 Prodigy pointed out that it did not—

and could not—manually review “all messages prior to posting” them.69

The court concluded that Prodigy was a publisher of the alleged libel because it controlled the

content of its message boards through an “automatic software screening program” and “Board

Leaders” who removed messages that violated Prodigy’s guidelines.70 The court held that “[b]y

actively utilizing technology and manpower to delete notes from its computer bulletin boards on

the basis of offensiveness and ‘bad taste,’ for example, [Prodigy] is clearly making decisions as to

content . . . , and such decisions constitute editorial control.”71 The court emphasized that it was

Prodigy’s “conscious choice” to exercise editorial control, implemented through “policies,

technology and staffing decisions,” that had “opened it up to a greater liability.”72

One of the sponsors of Section 104 argued on the floor of the House that the ruling against

Prodigy was “backward.”73 Representative Cox argued that Congress should be encouraging

internet service providers “like Prodigy, like CompuServe, like America Online, like the new

Microsoft network, to do everything possible for us, the customer, to help us control, at the

portals of our computer, at the front door of our house, what comes in and what our children

see.”74 It was to this end, Representative Cox contended, that Section 104 sought to protect

“computer Good Samaritans,” protecting them “from taking on liability such as occurred in the

64 Id. at *3.

65 Id.

66 Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 140–41 (S.D.N.Y. 1991). See id. at 140 (“A computerized

database is the functional equivalent of a more traditional news vendor, and the inconsistent application of a lower

standard of liability to an electronic news distributor such as CompuServe than that which is applied to a public library,

book store, or newsstand would impose an undue burden on the free flow of information.”).

67 Stratton Oakmont, Inc., 1995 WL 323710, at *2.

68 Id. at *3.

69 Id.

70 Id. at *4.

71 Id. (citation omitted).

72 Id. at *5. Cf. Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 140 (S.D.N.Y. 1991) (“[A third party] uploads the

text of Rumorville into CompuServe’s data banks and makes it available to approved . . . subscribers [to CompuServe’s

publishing service] instantaneously. CompuServe has no more editorial control over such a publication than does a

public library, book store, or newsstand, and it would be no more feasible for CompuServe to examine every

publication it carries for potentially defamatory statements than it would be for any other distributor to do so.”); id. at

140–41 (holding CompuServe could not be held liable unless “it knew or had reason to know of the allegedly

defamatory Rumorville statements”).

73 141 CONG. REC. H8470 (daily ed. Aug. 4, 1995) (statement of Rep. Christopher Cox).

74 Id. See also id. at H8471 (statement of Rep. Ron Wyden) (“Under our approach and the speed at which these

technologies are advancing, the marketplace is going to give parents the tools they need . . . .”).

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Section 230: An Overview

Prodigy case in New York that they should not face for helping us and for helping us solve this

problem.”75 Ultimately, Section 104 made it into the CDA, largely unchanged, as Section 230.76

Judicial Interpretation

Courts have interpreted Section 230 as creating broad immunity that allows the early dismissal of

many legal claims against interactive computer service providers,77 preempting lawsuits and

statutes that would impose liability based on third-party content.78 Courts have generally

interpreted Section 230(c)’s two separate provisions as creating two distinct liability shields.

Section 230(c)(1) states that interactive computer service providers and users may not “be treated

as the publisher or speaker of any information provided by another” person.79 Section 230(c)(2)

provides that interactive computer service providers and users may not be “held liable” for any

voluntary, “good faith” action “to restrict access to or availability of material that the provider or

user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise

objectionable.”80 One conception of these two provisions is that Section 230(c)(1) applies to

claims for content that is “left up,” while Section 230(c)(2) applies to claims for content that is

“taken down.”81 In practice, however, courts have also applied Section 230(c)(1) to “take down”

claims, and courts sometimes collapse Section 230’s two provisions into a single liability shield

or do not distinguish between the two provisions.82 A defendant’s chosen statutory basis for

immunity under Section 230 is consequential: Section 230(c)(2) includes a good faith

requirement absent from Section 230(c)(1), while Section 230(c)(1) is limited to claims based on

another’s content.83

Section 230’s provisions apply to users and providers of “interactive computer services,” a

defined term discussed above.84 Under this definition, courts have recognized that a website

operated by a print or broadcast media provider may be an interactive computer service.85 Thus, a

“traditional” media outlet could receive protection under Section 230 for material posted on its

75 Id. at H8470 (statement of Rep. Christopher Cox).

76 See S. REP. NO. 104-230, at 86–87 (1996).

77 But see G.G. v. Salesforce.com, Inc., 76 F.4th 544, 566 (7th Cir. 2023) (saying Section 230(c)(1) does not create

“immunity” but functions as an affirmative defense).

78 See, e.g., David S. Ardia, Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary

Immunity under Section 230 of the Communications Decency Act, 43 LOY. L.A. L. REV. 373, 438–39 (2010) (reporting

that almost all unreversed federal decisions involving invocations of Section 230 between Section 230’s passage and

September 30, 2009, happened at the motion to dismiss or summary judgment stage).

79 47 U.S.C. § 230(c)(1).

80 Id. § 230(c)(2).

81 E.g., Doe v. GTE Corp. 347 F.3d 655, 659 (7th Cir. 2003); cf. Malwarebytes, Inc. v. Enigma Software Grp. USA,

LLC, 141 S. Ct. 13, 15 (2020) (Thomas, J., statement respecting the denial of certiorari) (articulating this view of

Section 230 before positing that “[t]his modest understanding is a far cry from what has prevailed in court”).

82 E.g., Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1103 (9th Cir. 2009) (saying that imposing liability for removing

content would treat a party as “a publisher” under Section 230(c)(1)); Malwarebytes, 141 S. Ct. at 17 (Thomas, J.,

statement respecting the denial of certiorari) (collecting cases).

83 Although Section 230(c)(1) refers to content created by “another information content provider,” there is not judicial

agreement about whether Section 230(c)(1) applies when a plaintiff’s own content is at issue—in other words, courts

are divided as to whether a plaintiff itself may be “another information content provider” under Section 230(c)(1). For

more discussion of this issue, see infra note 166.

84 47 U.S.C. § 230(c); see supra “Text and Legislative History.”

85 See, e.g., Straw v. Streamwood Chamber of Commerce, Inc., No. 1-14-3094, 2015 IL App (1st) 143094-U, at *8 (Ill.

App. Ct. Sept. 29, 2015) (applying Section 230 to a letter to the editor published on a newspaper’s website).

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Section 230: An Overview

website while facing a different standard for material it prints or broadcasts.86 That said, courts

may deny Section 230’s protections without determining whether a party claiming its protections

is a provider or user of an interactive computer service, as detailed below.87

Section 230(c)(1): Publisher Activity

Section 230(c)(1) states that a provider or user of an interactive computer service will not be

considered a publisher or speaker of content “provided by another information content

provider.”88 Courts asked to apply Section 230(c)(1) to dismiss legal claims therefore ask three

questions89:

1. Is the defendant a provider or user of an interactive computer service?90

2. Does the plaintiff seek to hold the defendant liable as a publisher or speaker?

3. Does the plaintiff’s claim arise from information provided by another

information content provider?

If the answer to any of these questions is “no,” Section 230(c)(1) will not bar liability.

As discussed above, courts have construed the definition of “interactive computer service”

broadly.91 Cases thus often turn on the answers to the other two questions, which depend on the

legal claims’ specific facts: an entity may act as an information content provider for certain

content, but still be entitled to protection under Section 230(c)(1) for other content.92 This section

will first summarize Section 230(c)(1) case law before probing specific judicial interpretations of

when a service provider is acting as a publisher of another’s information or an information

content provider.

Early Interpretations: Zeran v. America Online, Inc.

While the legislative history of Section 230 reflects, among other things, an intent to overturn the

result in Stratton Oakmont, as discussed above,93 courts have applied Section 230(c)(1) broadly to

cover other circumstances. The first federal court of appeals decision to examine the scope of

86 Cf. Blumenthal v. Drudge, 992 F. Supp. 44, 49 (D.D.C. 1998) (“Congress decided not to treat providers of interactive

computer services like other information providers such as newspapers, magazines or television and radio stations[.]”).

87 See, e.g., FTC v. Leadclick Media, LLC, 838 F.3d 158, 176 (2d Cir. 2016) (ruling that claims were based on

information developed by defendant); FTC v. Accusearch, Inc., 570 F.3d 1187, 1197–98 (10th Cir. 2009) (reaching the

same conclusion and leaving the question of whether defendant is an interactive computer service “to another day”).

88 47 U.S.C. § 230(c)(1).

89 See, e.g., Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007); Jones v. Dirty World

Entm’t Recordings LLC, 755 F.3d 398, 409 (6th Cir. 2014).

90 Although many cases involving Section 230(c)(1) are brought against providers of interactive computer services,

Section 230(c)(1) also provides protection to users of interactive computer services. See, e.g., Barrett v. Rosenthal, 146

P.3d 510, 526–27 (Cal. 2006) (applying Section 230(c)(1) to an individual who posted a third-party article on a

message board); see also Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003) (opining that a website’s operator is a

“user” of interactive computer services, such as internet access service, and is therefore entitled to protection under

Section 230(c)(1)).

91 See supra “Text and Legislative History.”

92 See, e.g., Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc) (observing

that a website may avoid liability under Section 230(c)(1) for “passively display[ing] content that is created by third

parties,” but such website could be subject to liability for “content that it creates itself”).

93 See supra “Stratton Oakmont, Inc. v. Prodigy Services Co.”

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Section 230: An Overview

Section 230(c)(1) was the Fourth Circuit’s 1997 decision in Zeran v. America Online, Inc.,94 a

case with several differences from Stratton Oakmont. Since its publication, other courts of

appeals have largely adopted Zeran’s reasoning and broadly construed Section 230(c)(1),95

although some more recent cases have signaled a potential retreat from Zeran.96

In Zeran, an unidentified user on an America Online (AOL) bulletin board posted an

advertisement for T-shirts featuring slogans celebrating the bombing of the Alfred P. Murrah

Federal Building in Oklahoma City.97 The user invited AOL subscribers interested in purchasing

these shirts to call the plaintiff, Kenneth Zeran, at his home phone number and “ask for Ken”

upon calling.98 Despite this invitation, Zeran did not post the ad himself, nor did he direct anyone

to post the ad on his behalf.99 Zeran received harassing and threatening calls, and consequently he

contacted AOL and asked the company to remove the ad.100 An AOL employee assured Zeran that

AOL would take down the ad, but after AOL removed the ad, a similar ad took its place.101 Zeran

brought negligence claims against AOL on the theory that once Zeran notified AOL of the ads,

AOL had a duty to remove the ads, notify users that the ads were deceptive, and screen for similar

postings.102

Zeran premised his claim against AOL on a theory of “distributor” liability.103 At common law, as

discussed above,104 vendors and distributors of defamatory publications are liable for the content

of those publications if they know or have reason to know of the illegal or tortious content.105

Central to Zeran’s theory was the notion that, although Section 230(c)(1) prohibited the court

from holding AOL liable as a “publisher” of the defamatory statements, as the court treated

Prodigy in Stratton Oakmont,106 it did not eliminate notice-based distributor liability. In support

of this argument, Zeran noted that Section 230 specifically uses the term “publisher.”107

94 Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997). For purposes of brevity, references to a particular circuit in

this report (e.g., the Fourth Circuit) refer to the U.S. Court of Appeals for that particular circuit (e.g., the U.S. Court of

Appeals for the Fourth Circuit).

95 See Ben Ezra, Weinstein, & Co., Inc. v. Am. Online, Inc., 206 F.3d 980 (10th Cir. 2000); Green v. Am. Online

(AOL), 318 F.3d 465 (3d Cir. 2003); Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003); Universal Commc’n Sys., Inc. v.

Lycos, Inc., 478 F.3d 413 (1st Cir. 2007); Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008); Johnson v. Arden, 614

F.3d 785 (8th Cir. 2010); Klayman v. Zuckerberg, 753 F.3d 1354 (D.C. Cir. 2014); Jones v. Dirty World Entm’t

Recordings LLC, 755 F.3d 398 (6th Cir. 2014); Ricci v. Teamsters Union Local 456, 781 F.3d 25 (2d Cir. 2015); see

also Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir. 2006) (recognizing agreement among other courts of

appeals but reaching a decision on other grounds); cf. Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v.

Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008) (partially rejecting the reasoning in Zeran but nonetheless finding that

Section 230 barred Fair Housing Act claims against online service provider).

96 See, e.g., Henderson v. Source for Pub. Data, L.P., 53 F.4th 110, 121–22 (4th Cir. 2022) (discussing the definition of

“publisher”).

97 Zeran, 129 F.3d at 329.

98 Id.

99 Zeran v. Am. Online, Inc., 958 F. Supp. 1124, 1126 (E.D. Va. 1997).

100 Zeran, 129 F.3d at 329.

101 Id.

102 Id. at 330.

103 Though Zeran characterized his claims as stemming from America Online’s negligence, the Fourth Circuit noted

that the claims were “indistinguishable from a garden variety defamation action.” Id. at 332.

104 See supra “Stratton Oakmont, Inc. v. Prodigy Services Co.”

105 See Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 139–40 (S.D.N.Y. 1991). This limitation on distributor

liability is rooted in the First Amendment. Id. (citing Smith v. California, 361 U.S. 147, 152–53 (1959)).

106 Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710, at *4 (N.Y. Sup. Ct. May 24, 1995).

107 See Zeran, 129 F.3d at 331–32.

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The Fourth Circuit rejected this argument. Writing for a unanimous panel, Chief Judge Wilkinson

posited that “distributor” liability depends on a distributor’s publication of tortious material, and a

distributor is therefore a publisher.108 Judge Wilkinson therefore reasoned that both at common

law and in Section 230, the use of the term “publisher” includes original publishers as well as

distributors.109 The court suggested that subjecting a computer service provider to liability based

on the provider’s knowledge would “reinforce[] service providers’ incentives to restrict speech

and abstain from self-regulation” and “deter service providers from regulating the dissemination

of offensive material over their own services.”110 Chief Judge Wilkinson therefore concluded that

reading Section 230(c)(1) to leave notice-based distributor liability intact would conflict with

Section 230’s purposes.111

As discussed below, Zeran has informed the approach of a vast number of courts interpreting

Section 230(c)(1). As one commentator has noted, “the rule of Zeran [barring distributor liability]

has been uniformly applied by every federal circuit court to consider it and by numerous state

courts.”112 Even so, some jurists have expressed skepticism about the Fourth Circuit’s approach.

In a statement written to accompany a denial of certiorari in a Section 230 case, U.S. Supreme

Court Justice Clarence Thomas suggested, contrary to the holding in Zeran, that Section

230(c)(1) might not limit distributor liability.113 Two federal appellate judges concurring in

separate Section 230 cases also questioned whether Zeran’s definition of “publisher” interpreted

Section 230(c)(1) beyond its intended scope.114 In addition to the skepticism expressed by

individual jurists, a 2022 Fourth Circuit opinion appeared to narrow Zeran’s conception of

“publisher” activity without disturbing its basic ruling on distributor liability.115 This decision is

discussed below.116

Service Provider Role as Publisher

While Zeran may be understood as addressing Section 230(c)(1)’s general scope, the case also

addressed how courts may determine whether a claim treats a defendant as a “publisher or

speaker” of another’s content.117 The Zeran court determined that the provision bars “lawsuits

seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial

functions—such as deciding whether to publish, withdraw, postpone, or alter content.”118 More

108 Id. at 332 (citing W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 113, at 803 (5th ed. 1984)).

109 Id. at 333–34.

110 Id. at 333.

111 Id.

112 Ian C. Ballon, Zeran v. AOL and Its Inconsistent Legacy, LAW JOURNAL NEWSLETTERS (Dec. 2017),

https://www.lawjournalnewsletters.com/sites/lawjournalnewsletters/2017/12/01/zeran-v-aol-and-its-inconsistentlegacy/?slreturn=20201103124726 (noting, though, that different federal appeals courts apply Zeran differently).

113 Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC, 141 S. Ct. 13, 15–16 (2020) (Thomas, J., statement

respecting the denial of certiorari) (arguing that the imposition of distributor liability elsewhere in the CDA and the use

of terms different from those used in Stratton Oakmont might suggest that Section 230 was not meant to limit

distributor liability).

114 E.g., Force v. Facebook, Inc., 934 F.3d 53, 84 (2d Cir. 2019) (Katzmann, J., concurring in part) (opining that

Section 230 as applied creates “extensive immunity . . . for activities that were undreamt of in 1996”); Gonzalez v.

Google, LLC, 2 F.4th 871, 915 (9th Cir. 2021) (Berzon, J., concurring) (arguing that the legislative history of Section

230 does not support a broad reading of publisher functions).

115 Henderson v. Source for Public Data, L.P., 53 F.4th 110, 121 n.12 (4th Cir. 2022).

116 Infra text accompanying notes 146 to 150.

117 See generally Force v. Facebook, Inc., 934 F.3d 53, 64 n.18 (2d Cir. 2019) (discussing the scope of “publisher

liability”).

118 Zeran, 129 F.3d at 330.

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Section 230: An Overview

generally, the Fourth Circuit interpreted Section 230(c)(1) as “creat[ing] a federal immunity to

any cause of action that would make service providers liable for information originating with a

third-party user of the service.”119 This interpretation would apply beyond the defamation claims

brought in Zeran and Stratton Oakmont, and courts of appeals have barred many claims on the

theory that the defendant computer service is being treated as a publisher or speaker.120 Many

courts have used this “traditional editorial functions”121 standard to interpret the scope of

“publisher” immunity under Section 230.122

For instance, the D.C. Circuit affirmed the dismissal of a lawsuit claiming Facebook acted

negligently in failing to promptly remove an allegedly threatening page, saying that deciding

“whether to print or retract a given piece of content” constitutes “the very essence of

publishing.”123 A number of courts have held that Section 230 not only bars lawsuits seeking

monetary damages, but also bars suits for injunctive relief that would require sites to take specific

actions with respect to third-party content.124 For example, in Hassell v. Bird, the California

Supreme Court said that Section 230 required the dismissal of a claim that sought to enforce a

court order against Yelp.125 The plaintiffs had sued the author of allegedly defamatory statements

posted about their business on Yelp and obtained a default judgment in their favor after the

defendant failed to respond to the lawsuit.126 The plaintiff then attempted to enforce that judgment

against Yelp, who was not originally a party to the litigation, asking the court to enter an

injunction requiring Yelp to take down the defamatory statements.127 In the state court’s view, the

lawsuit sought “to overrule Yelp’s decision to publish the three challenged reviews,”

impermissibly treating it as a publisher of third-party information.128 The court said that allowing

injunctions could “impose substantial burdens” on internet intermediaries, contrary to Section

119 Id.

120 See, e.g., Doe v. Backpage.com, LLC, 817 F.3d 12, 18–24 (1st Cir. 2016) (applying Section 230(c)(1) to claims

brought under federal and state sex trafficking statutes); Doe v. MySpace, Inc., 528 F.3d 413, 420 (5th Cir. 2008)

(rejecting negligence liability for a service provider when an adult user used the service to meet and allegedly abuse

minor children); Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 668–69 (7th

Cir. 2008) (affirming dismissal of a federal housing discrimination claim); Force v. Facebook, Inc., 934 F.3d 53, 65–68

(2d Cir. 2019) (applying Section 230(c)(1) to federal civil claims based on terrorist attacks encouraged and coordinated

by users of a service); Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 422 (1st Cir. 2007) (affirming

dismissal of claims brought under state securities and cyberstalking laws).

121 Zeran, 129 F.3d at 330.

122 See, e.g., Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398, 407 (6th Cir. 2014); Barnes v. Yahoo! Inc.,

570 F.3d 1096, 1102 (9th Cir. 2009); Shiamili v Real Estate Grp. of N.Y., Inc., 952 N.E.2d 1011, 1019 (N.Y. 2011).

123 Klayman v. Zuckerberg, 753 F.3d 1354, 1355 (D.C. Cir. 2014).

124 See, e.g., Hassell v. Bird, 420 P.3d 776, 788 (Cal. 2018) (plurality opinion); id. at 794 (Kruger, J., concurring); see

also Noah v. AOL Time Warner Inc., 261 F. Supp. 2d 532, 539–540 (E.D. Va. 2003) (collecting Section 230 cases

dismissing claims for injunctive relief and concluding that the “continuing authority” of a 1998 trial court case holding

that Section 230 did not bar injunctive relief was “questionable”); Republican Nat’l Comm. v. Google, Inc., No. 2:22cv-01904, 2023 WL 5487311, at *8 (E.D. Cal. Aug. 24, 2023) (concluding injunctive relief was also barred under

Section 230(c)(2)).

125 Hassell, 420 P.3d at 778–79 (plurality opinion); id. at 794 (Kruger, J., concurring).

126 Id. at 780–81 (plurality opinion).

127 Id. at 781–82.

128 Id. at 789; accord id. at 794 (Kruger, J., concurring). See also id. at 790 (plurality opinion) (“The duty that plaintiffs

would impose on Yelp, in all material respects, wholly owes to and coincides with the company’s continuing role as a

publisher of third party online content.”).

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Section 230: An Overview

230’s goal of “spar[ing] republishers of online content . . . from this sort of ongoing entanglement

with the courts.”129

In limited circumstances, courts have concluded that a particular claim does not treat a defendant

as a publisher or speaker and is thus not barred by Section 230. One such case decided by the

Ninth Circuit, Doe v. Internet Brands, Inc., involved a negligent failure to warn claim against a

service provider, arguing that under state law, the provider had a duty to warn users that third

parties had used its site to target and lure victims in a “rape scheme.”130 The court held that

Section 230 did not bar the claim because the alleged duty resulted from information the service

provider acquired offline, rather than from user content generated on the provider’s website, and

the service provider could satisfy this duty to warn without removing any user content or

changing how it monitored user content.131

Similarly, the Ninth Circuit refused to bar a state contract law claim based on a provider’s

promise to remove third-party content.132 The court said that liability for the “promissory

estoppel” claim came “not from [the provider’s] publishing conduct, but from [the provider’s]

manifest intention to be legally obligated to do something, which happens to be removal of

material from publication.”133 Another case decided by the Seventh Circuit involved a claim

against a provider of customer relationship management software based on the provider’s alleged

knowing participation in sex trafficking undertaken by one of its clients, a website that used its

software.134 The court held that this claim depended on the provider’s offering of business support

to its client, rather than its publication of any particular content.135

Claims founded on economic regulations of online services have also survived Section 230(c)(1)

preemption. For example, in City of Chicago v. Stubhub!, Inc., the Seventh Circuit declined to

apply Section 230(c)(1) to bar collection of a city amusement tax from an online ticket resale

platform, noting that the tax “does not depend on who ‘publishes’ any information or is a

‘speaker.’”136 Likewise, the Ninth Circuit held that Section 230(c)(1) did not preempt a local

ordinance regulating short-term property rentals, as applied to websites that hosted listings of

such rentals.137 In the Ninth Circuit’s view, the ordinance merely required platforms to monitor

booking transactions listed in a city-run registry of rental properties and did not require platforms

to police the content of third-party listings.138 The court thus did not believe that the ordinance

would impermissibly treat the platforms as publishers of third-party content.139 Courts have also

129 Id. at 791 (plurality opinion). See also Noah, 261 F. Supp. 2d at 540 (“[G]iven that the purpose of § 230 is to shield

service providers from legal responsibility for the statements of third parties, § 230 should not be read to permit claims

that request only injunctive relief. After all, in some circumstances injunctive relief will be at least as burdensome to

the service provider as damages, and is typically more intrusive.”).

130 Doe v. Internet Brands, Inc., 824 F.3d 846, 849 (9th Cir. 2016).

131 Id. at 851.

132 Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1107 (9th Cir. 2009).

133 Id. See also, e.g., Darnaa, LLC v. Google, Inc., No. 15-cv-03221-RMW, 2016 WL 6540452, at *8 (N.D. Cal. Nov.

2, 2016) (“Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing . . . is not precluded by

§ 230(c)(1) because it seeks to hold defendants liable for breach of defendants’ good faith contractual obligation to

plaintiff, rather than defendants’ publisher status.”).

134 G.G. v. Salesforce.com, Inc., 76 F.4th 544, 548 (7th Cir. 2023).

135 Id. at 567.

136 City of Chicago v. Stubhub!, Inc., 624 F.3d 363, 366 (7th Cir. 2010).

137 HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676 (9th Cir. 2019).

138 Id. at 682.

139 Id. at 682–83; see also In re Zoom Video Commc’ns Privacy Litig., 525 F. Supp. 3d 1017, 1033 (N.D. Cal. 2021)

(continued...)

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Section 230: An Overview

sometimes found claims arising from an online marketplace’s role as a seller of a defective

product to fall outside of Section 230’s protection.140

Federal courts have also declined to apply Section 230(c)(1) to lawsuits brought by the Federal

Trade Commission (FTC) against service providers alleging violations of Section 5 of the Federal

Trade Commission Act.141 The first Court of Appeals to address this issue was the Tenth Circuit in

FTC v. Accusearch, Inc.142 The majority opinion in Accusearch did not decide whether the

defendant was being treated as a publisher or speaker, instead concluding that Section 230 did not

bar the suit because the defendant had contributed to the allegedly unlawful content.143 However,

Judge Tymkovich wrote in a concurring opinion that the cause of action sought to hold the

defendant liable for its own conduct, rather than for third-party content, and thus the defendant

was not being treated as a publisher or speaker.144 In FTC v. Leadclick Media, LLC, the Second

Circuit agreed with Judge Tymkovich’s concurrence and determined that a claim brought under

Section 5 of the FTC Act depended on the defendant’s own deceptive acts or practices and

therefore did not treat the defendant as a publisher or speaker.145

One recent decision signals an approach that may define publisher activity more narrowly than

some courts previously applied Zeran. In Henderson v. Source for Public Data, L.P., the Fourth

Circuit held that to treat a service provider as a publisher or speaker, a claim must hold a service

provider liable based on the improper content of the disseminated information.146 The court drew

this requirement from defamation law, under which a defendant’s liability as a publisher depends

on the improper, “false and defamatory” nature of the material published.147 Under this view,

Section 230 did not bar claims alleging that a website had failed to comply with the Fair Credit

Reporting Act.148 Although the claims would have held the site liable for improperly

disseminating information, they did not depend on the information’s content being improper.149

The opinion cited and purported to apply Zeran, but Henderson appeared to add a new

requirement given that Zeran made no reference to the content of information.150 Several

subsequent decisions from state and federal courts outside of the Fourth Circuit have declined to

(characterizing this as “content-neutral liability”). Cf. Airbnb, Inc. v. City of Boston, 386 F. Supp. 3d 113, 120–24 (D.

Mass. 2019) (ruling that a similar regulation was not preempted by Section 230, but concluding Section 230 likely did

preempt portions of the regulation requiring a “booking agent” to remove improper listings).

140 See, e.g., Lee v. Amazon.com, Inc., 291 Cal. Rptr. 3d 332, 378–79 (Cal. Ct. App. 2022); Erie Ins. Co. v.

Amazon.com, Inc., 925 F.3d 135, 139–40 (4th Cir. 2019). As discussed, the unavailability of Section 230 in cases

brought against online marketplaces does not necessarily mean the marketplace will face liability. See, e.g., Erie Ins.

Co., 925 F.3d at 142 (holding that Amazon was not liable for sale of a defective product).

141 15 U.S.C. § 45.

142 FTC v. Accusearch, Inc., 570 F.3d 1187, 1197 (10th Cir. 2009).

143 Id.

144 Id. at 1204 (Tymkovich, J., concurring). For more discussion of Accusearch, see infra “Subsequent Developments in

Material Contribution Analysis.”

145 FTC v. Leadclick Media, LLC, 838 F.3d 158, 176–77 (2d Cir. 2016).

146 Henderson v. Source for Public Data, L.P., 53 F.4th 110, 122 (4th Cir. 2022).

147 Id. (citing RESTATEMENT (SECOND) OF TORTS § 558(a) (AM. L. INST. 1965)).

148 Id. at 117.

149 Id. at 123–24.

150 See Zeran v. Am. Online, Inc. 129 F.3d 327, 330 (4th Cir. 1997) (referencing the exercise of “traditional editorial

functions” without reference to the content of information). Because the material at issue in Zeran was allegedly

defamatory, see id., the Fourth Circuit’s decision in Henderson does not call into question the outcome of Zeran.

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follow Henderson, reasoning that the decision conflicts with binding precedent in their

jurisdictions that reads Section 230(c)(1) more broadly.151

Product Design Claims

Courts have seen a rise in suits alleging, often as product liability claims,152 that online services

were designed negligently.153 Some opinions have held that Section 230(c)(1) barred claims

seeking to hold sites liable for failing to adopt safety features that plaintiffs claim would have

prevented violence.154 To take one example, in Doe v. MySpace, Inc., the Fifth Circuit affirmed

the dismissal of a lawsuit alleging that MySpace acted negligently in failing “to implement basic

safety measures to prevent sexual predators from communicating with minors on its Web site.”155

The plaintiff, a minor, had used the site to meet and communicate with an older teenager who

later sexually assaulted her at an in-person meeting.156 The plaintiff argued that her negligence

claims depended on “MySpace’s failure to implement basic safety measures” and therefore would

not treat the site as a publisher.157 The Fifth Circuit disagreed, saying the allegations were “merely

another way of claiming that MySpace was liable for publishing the communications.”158 In the

court’s view, the negligence claims hinged on MySpace’s publisher functions: its decisions

relating to the “monitoring, screening, and deletion” of third-party content.159 As a result, Section

230(c)(1) barred liability.160

In contrast, the Ninth Circuit determined more recently that claims brought against the maker of

Snapchat for negligently designing its platform to include a “speed filter” that encouraged users

to drive at recklessly high speeds would not be barred by Section 230(c)(1).161 The Ninth Circuit

determined that the claims based on Snapchat’s speed filter did not treat the platform as a

“publisher or speaker,” because the claims “treat[ed] Snap as a products manufacturer, accusing it

of negligently designing a product (Snapchat) with a defect.”162 Citing Internet Brands, the failure

to warn case discussed above, the court observed that “Snap could have satisfied” the alleged

obligation to design a better product “without altering the content that Snapchat’s users

151 E.g., Divino Grp. LLC v. Google LLC, No. 19-04749, 2023 WL 218966, at *2 (N.D. Cal. Jan. 17, 2023)

(“Henderson is not binding on this Court; and . . . the Fourth Circuit’s narrow construction of Section 230(c)(1) appears

to be at odds with Ninth Circuit decisions indicating that the scope of the statute’s protection is much broader.”); Prager

Univ. v. Google LLC, 85 Cal. App. 5th 1022, 1033 n.4 (Cal. Ct. App. 2022) (“Henderson’s narrow interpretation of

section 230(c)(1) is in tension with the California Supreme Court’s broader view, which we follow, absent a contrary

ruling by the United States Supreme Court.”).

152 For a discussion of products liability claims, see CRS In Focus IF11291, Introduction to Tort Law, by Andreas

Kuersten.

153 See generally, e.g., Peter Karalis & Golriz Chrostowski, Analysis: Product Claims Spike as SCOTUS Ponders

Section 230 Fix, BLOOMBERG LAW (Mar. 2, 2023), https://news.bloomberglaw.com/bloomberg-law-analysis/analysisproduct-claims-spike-as-scotus-ponders-section-230-fix.

154 E.g., Herrick v. Grindr LLC, 765 F. App’x 586, 590–91 (2d Cir. 2019) (affirming dismissal of product liability,

negligence, and infliction of emotional distress claims alleging Grindr should have adopted safety features that would

have protected a user from an ex-boyfriend’s “campaign of harassment” conducted on the service).

155 Doe v. MySpace, Inc., 528 F.3d 413, 416 (5th Cir. 2008).

156 Id. The suit was brought by the minor and her mother under the aliases Jane and Julie Doe. See id. at 415–16. This

report refers to a singular plaintiff for convenience.

157 Id. at 419.

158 Id. at 420.

159 See id. (quoting Green v. Am. Online (AOL), 318 F.3d 465, 471 (3rd Cir. 2003)).

160 Id. at 422.

161 Lemmon v. Snap, Inc., 995 F.3d 1085, 1091–94 (9th Cir. 2021).

162 Id. at 1092.

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generate.”163 A state court in Georgia reached a similar conclusion, holding that claims based on

Snapchat’s speed filter did “not seek to hold Snapchat liable for publishing” and therefore could

proceed.164

Information Provided by Another Information Content Provider

Section 230(c)(1)’s protections extend only to claims that would hold a defendant liable for

“information provided by another information content provider.”165 Put another way, Section

230(c)(1) does not protect defendants from claims arising from their own content.166 For example,

Section 230(c)(1) would not bar a defamation claim against a social media website based on the

content of a label or disclaimer added by the website to third-party content.167 But as recognized

in Zeran and other cases, Section 230(c)(1) does allow a defendant to make some editorial

adjustments to third-party content without being considered the provider of that content.168

Whether a defendant is being treated as the publisher of information provided by “another

information content provider” depends in part on whether the defendant is an information content

provider itself.169 As defined in Section 230, 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.”170 When a case involves

third-party content, courts routinely focus on the defendant’s role in the “creation or

development” of the content.171

163 Id.; see supra text accompanying notes 130 to 131.

164 Maynard v. Snapchat, Inc., 816 S.E.2d 77, 81 (Ga. Ct. App. 2018). The court emphasized that the alleged liability

stemmed from actions taken before a third party had posted any content. Id. at 80.

165 47 U.S.C. § 230(c)(1) (emphasis added).

166 A separate but related question is whether a plaintiff bringing claims based on their own content is “another

information content provider” under Section 230(c)(1). Some courts have declined to apply Section 230(c)(1) to

content created by a plaintiff, reasoning that allowing Section 230(c)(1) to cover such content would render Section

230(c)(2) superfluous. See, e.g., e-ventures Worldwide, LLC v. Google, Inc., No. 2:14-cv-646-FtM-PAM-CM, 2017

WL 2210029, at *3 (M.D. Fla. Feb. 8, 2017) (declining to apply Section 230(c)(1) to unfair competition claims based

on Google’s removal of plaintiff’s advertising material). Other courts have applied Section 230(c)(1) to such claims.

See, e.g., Riggs v. MySpace, Inc., 444 F. App’x 986, 987 (9th Cir. 2011) (affirming dismissal under Section 230(c)(1)

of claims based on removal of plaintiff-created profile pages); Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc., 144 F.

Supp. 3d 1088, 1093–94 (N.D. Cal. 2015) (applying Section 230(c)(1) to dismiss claims based on blocking access to

plaintiff-created page), aff’d, 697 F. App’x 526 (9th Cir. 2017); cf. Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir.

2003) (interpreting Section 230(c)(1)’s reference to “another information content provider” to “distinguish[] the

circumstance in which the interactive computer service itself meets the definition of ‘information content provider’

with respect to the information in question”).

167 Cf. Maffick, LLC v. Facebook, Inc., No. 20-05222, 2020 WL 5257853, at *1 (N.D. Cal. Sept. 3, 2020) (ignoring

Section 230 entirely in a case based on Facebook’s labeling of user accounts as “Russia state-controlled media”).

168 Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); see Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir.

2003) (making minor alterations to email before posting email to listserv did not render defendant liable for third-party

content); Ben Ezra, Weinstein, & Co. v. America Online, Inc., 206 F.3d 980, 985–86 (10th Cir. 2000) (deleting

erroneous information from a database containing third-party content did not render defendant liable for third-party

content); Blumenthal v. Drudge, 992 F. Supp. 44, 51–52 (D.D.C. 1998) (reserving right to “require reasonable

changes” to content did not render service provider liable for content).

169 See 47 U.S.C. § 230(c)(1).

170 Id. § 230(f)(3).

171 See, e.g., Batzel, 333 F.3d at 1031; Ben Ezra, Weinstein, & Co., 206 F.3d at 985.

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Fair Housing Council v. Roommates.com, LLC

A foundational case on this issue is the Ninth Circuit’s decision in Fair Housing Council v.

Roommates.com, LLC (Roommates).172 In Roommates, housing agencies in San Diego and the

San Fernando Valley sued the operators of the website Roommates.com,173 a website that allows

individuals to locate prospective roommates.174 New Roommates.com users were required to

complete a questionnaire that included the user’s preferences for a roommate’s age, gender,

sexual orientation, and number of children.175 Roommates.com then displayed the answers to

these questions in personal profiles, which users of the site could search and view.176 The housing

agencies alleged that Roommates.com had violated a provision of the Fair Housing Act that

prohibits publishing advertisements for the sale or rental of a dwelling that indicate any

preference based on sex, familial status, or other protected characteristics.177 In defense,

Roommates.com argued that the housing agencies were seeking to hold Roommates.com liable

for content generated by individual users, and therefore Section 230(c)(1) would bar liability.178

In an en banc ruling, the Ninth Circuit rejected this contention, saying that Roommates.com’s

required questionnaire “induce[d] third parties to express illegal preferences.”179 According to the

court, because this questionnaire was created by Roommates.com and not its users, Section

230(c)(1) did not apply.180

Addressing Roommates.com’s liability for displaying its user’s preferences on personal profiles,

the court acknowledged that the “illegal preferences” at issue were pieces of information

provided by information content providers other than Roommates.com.181 But the Ninth Circuit

noted that Roommates.com may still have “develop[ed] . . . in part” this information, such that

Roommates.com could be considered the “information content provider” of the information.182

The court determined that by requiring users to answer its questionnaire, Roommates.com had at

least in part developed the information.183 The Ninth Circuit cabined the reach of its holding by

specifying that “passive conduits” or “neutral tools,” such as a search engine that filters content

only by user-generated criteria, would not be responsible for developing content.184 The court also

concluded that Section 230(c)(1) did bar liability for user comments made in an “Additional

172 Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc).

173 The defendant’s corporate name in Roommates is the singular Roommate.com, LLC. However, the domain of the

website operated by the defendant is the plural roommates.com. This linguistic mismatch resulted in the party being

named as “Roommates.com” in the Ninth Circuit case. Cf. Fair Hous. Council v. Roommate.com, LLC, No. 03-09386,

2004 WL 3799488 (C.D. Cal. Sept. 30, 2004). For clarity, this report will refer to the defendant website operator as

“Roommates.com.”

174

Roommates, 521 F.3d at 1162.

175 Id. at 1161.

176 Id.

177 42 U.S.C. § 3604(c).

178 Roommates, 521 F.3d at 1162.

179 Id. at 1165.

180 Id.

181 Id.

182 Id.; see 47 U.S.C. § 230(c)(1) (applying only to information provided by “another information content provider”).

183 Roommates, 521 F.3d at 1166.

184 Id. at 1167–69.

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Comments” section of user profiles, a blank box where users could post text with no

constraints.185

Writing for the majority, Chief Judge Kozinski summarized the Roommates court’s holding: “a

website helps to develop unlawful content . . . if it contributes materially to the alleged illegality

of the conduct.”186 In a later Ninth Circuit opinion, the court clarified that this “material

contribution” test “draw[s] the line at ‘the crucial distinction between, on the one hand, taking

actions (traditional to publishers) that are necessary to the display of unwelcome and actionable

content and, on the other hand, responsibility for what makes the displayed content illegal or

actionable.’”187

Subsequent Developments in Material Contribution Analysis

Since the Ninth Circuit’s decision in Roommates, other federal courts of appeals and state courts

have adopted variations on Roommates’ “material contribution” analysis in determining whether a

defendant is the information content provider of the information at issue. The next federal appeals

court to consider Roommates was the Tenth Circuit in FTC v. Accusearch, Inc., which adopted—

and possibly expanded upon—the Ninth Circuit’s reasoning in Roommates.188 At issue in

Accusearch was whether a website that sold information contained in telephone records could

claim Section 230 protection from an FTC enforcement action when the operator acquired these

records from third parties.189 Accusearch argued that it did not add anything to the information

after receiving it and thus was not an information content provider of the information.190 In an

opinion written by Judge Hartz, the Tenth Circuit held that a defendant’s solicitation of and

payment for telephone records rendered the defendant an information content provider of these

records.191

The Tenth Circuit focused on whether the defendant had played any role in “developing” the

information. Judge Hartz opined that the inclusion of two terms—“creation” and

“development”—in Section 230’s definition of “information content provider” suggested that the

two terms had distinct meanings.192 Unwilling to adopt a redundant definition of “development,”

the court turned to dictionary definitions of the term and determined that information may be

“developed” when the information is made “‘visible,’ ‘active,’ or ‘usable.’”193 The Tenth Circuit

therefore concluded that by making telephone records public on its website, the defendant had

“developed” those records.194 Noting that Section 230 defines an information content provider as

one “responsible, in whole or in part” for the creation or development of content,195 the

Accusearch court followed Roommates in holding that a party is “responsible” for content only

185 Id. at 1173–75; see also Chi. Lawyers’ Comm. for Civil Rights Under Law v. Craigslist, Inc., 519 F.3d 666, 671

(2008) (concluding Section 230(c)(1) barred a similar Fair Housing Act case brought against website that hosted

apartment listings, but listings were written entirely by users).

186 Roommates, 521 F.3d at 1168.

187 Kimzey v. Yelp! Inc., 836 F.3d 1263, 1269 n.4 (9th Cir. 2016) (quoting Jones v. Dirty World Entmt. Recordings

LLC, 755 F.3d 398, 413–14 (6th Cir. 2014).

188 FTC v. Accusearch, Inc., 570 F.3d 1187, 1198 (10th Cir. 2009).

189 Id. at 1190.

190 Id. at 1197–98.

191 Id. at 1200.

192 Id. at 1198.

193 Id. (quoting WEBSTER’S THIRD NEW INT’L DICTIONARY 618 (2002)).

194 Id.

195 47 U.S.C. § 230(f)(3).

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when the party “in some way specifically encourages development of what is offensive about the

content.”196 To the Tenth Circuit, what was “offensive” about the information at issue was that it

had been publicly exposed: as the court observed, federal law generally prohibits the disclosure of

telephone records to third parties.197 Judge Hartz noted that Accusearch had “affirmatively

solicited” telephone records from its paid researchers and “knowingly sought to transform

virtually unknown information into a publicly available commodity,” and was therefore

responsible for the records being made public.198

Courts interpreting Roommates and Accusearch have attempted to define the contours of when a

defendant has or has not “materially contributed” to content. A North Carolina appellate court

held that “a website must effectively control the content . . . or take other actions which

essentially ensure the creation of unlawful content” to be considered an information content

provider.199 The Sixth Circuit has emphasized that mere encouragement does not rise to the level

of material contribution, asserting that holding otherwise “would inflate the meaning of

‘development’ to the point of eclipsing the immunity from publisher-liability that Congress

established.”200 Even the Ninth Circuit has cautioned against the broad application of Roommates,

declining to hold, for example, that a defendant materially contributed to content when the

defendant did not “require[] users to post specific content,” as Roommates.com did by requiring

users to complete its questionnaire.201 In one of the few instances where a court has recognized

material contribution, a California Court of Appeal decision applying Roommates held that a

social media platform’s advertising tools, which required advertisers to select a target age range

and gender, materially contributed to the alleged proliferation of discriminatory advertisements

on the platform.202

Algorithmic Sorting and Promotion

A recurring issue in Section 230 cases is whether Section 230(c)(1) immunizes the use of

algorithms to filter and sort content in a particular way—a common feature on social media

websites and search engines.203 Claims brought against websites for their use of algorithms often

cast a website’s use of algorithms either as “development” of third-party content, much like the

theories of Roommates and Accusearch, or as nonpublisher activity to which Section 230(c)(1)

would not apply. Federal courts of appeals that have considered this issue thus far have uniformly

rejected these theories.204 For a more detailed discussion of these cases and recent developments,

see CRS Report R47753, Liability for Algorithmic Recommendations, by Eric N. Holmes.

196 Accusearch, 570 F.3d at 1199.

197 Id.; see 47 U.S.C. § 222.

198 Accusearch, 570 F.3d at 1200.

199 Hill v. Stubhub, Inc., 727 S.E.2d 550, 561 (N.C. App. 2012).

200 Jones v. Dirty World Entmt. Recordings LLC, 755 F.3d 398, 414 (6th Cir. 2014); see Fair Hous. Council v.

Roommates.com, LLC, 521 F.3d 1157, 1161 n.19 (9th Cir. 2008) (en banc) (noting that Roommates.com “does much

more than encourage or solicit”).

201 Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1099 (9th Cir. 2019).

202 Liapes v. Facebook, Inc., 313 Cal. Rptr. 3d 330, 346 (Cal. Ct. App. 2023).

203 For more information on content recommendation and moderation algorithms, see CRS In Focus IF12462, Social

Media Algorithms: Content Recommendation, Moderation, and Congressional Considerations, by Kristen E. Busch.

204 E.g., Dyroff, 934 F.3d at 1098–99 (opining that plaintiffs could not frame “website features as content” and that the

site’s recommendation and notification functions did not materially contribute to alleged unlawfulness of content);

Force v. Facebook, Inc., 934 F.3d 53, 66–69 (2d Cir. 2019) (rejecting theories that algorithmic sorting rendered website

a nonpublisher or materially contributed to development of content); Marshall’s Locksmith Serv., Inc. v. Google, LLC,

(continued...)

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A thorough examination of the relationship between algorithmic content and Section 230 is the

Second Circuit’s opinion in Force v. Facebook, Inc., a case brought by victims of terrorist attacks

allegedly coordinated and encouraged on Facebook by individual users.205 In Force, the plaintiffs

contended that Facebook’s use of algorithms to display personalized content and friend

suggestions was nonpublisher activity outside Section 230’s scope or, alternatively, materially

contributed to the development of user content by “mak[ing] that content more visible, available,

and usable.”206 The Second Circuit declined to endorse either of these arguments and instead held

that Section 230 barred the plaintiffs’ claims.207 Addressing the first argument, the court decided

that how and where to display content is a quintessential editorial decision protected under

Section 230, and therefore plaintiffs sought to hold Facebook liable as a publisher.208 The Second

Circuit likewise held that Facebook had not developed user content when its algorithms “take the

information provided by Facebook users and ‘match’ it to other users—again, materially

unaltered—based on objective factors applicable to any content.”209

The Force court’s treatment of algorithmic sorting applies the “neutral tools” language first

appearing in Roommates.210 Several earlier cases adopt a similar approach to such neutral tools

that, though originating with this language from Roommates, slightly diverges from Roommates’

material contribution analysis. In an early case on the issue, the D.C. Circuit held that “a website

does not create or develop content when it merely provides a neutral means by which third parties

can post information of their own independent choosing online.”211 Both the D.C. Circuit and the

Second Circuit have elaborated on particular features that may make a website’s tools “neutral.”

In Marshall’s Locksmith Service, Inc. v. Google, a case involving search engines that

automatically converted addresses provided by third parties into “pinpoints” appearing on the

search engines’ mapping websites, the D.C. Circuit emphasized that the search engines’ tools did

“not distinguish” between different types of user content.212 Instead, the algorithm translated all

types of information, both legitimate and scam information, in the same manner.213 The Second

Circuit in Force characterized Facebook’s involvement in user content as “neutral” when

Facebook did not require users to provide more than “basic identifying information” and its

sorting algorithms used “objective factors” that applied in the same way “to any content.”214

925 F.3d 1263, 1271 (D.C. Cir. 2019) (declining to treat search engines’ conversion of fraudulent addresses from

webpages into “map pinpoints” as developing content).

205 Force, 934 F.3d at 57.

206 Id. at 70 (internal quotations omitted); id. at 65–66.

207 Id. at 71. In a partially dissenting opinion, Chief Judge Katzmann wrote that he would not apply Section 230(c)(1),

reasoning that claims based on Facebook’s friend and content suggestion systems did not treat Facebook as a publisher

of another’s content. Id. at 76–89 (Katzmann, J., concurring in part and dissenting in part).

208 Id. at 66–67 (majority opinion); see Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1124–25 (9th Cir. 2003)

(applying Section 230 to a website’s “decision to structure the information provided by users”); Marshall’s Locksmith

Serv., 925 F.3d at 1269 (holding that “the choice of presentation” is a publisher function protected by Section 230); cf.

O’Kroley v. Fastcase, Inc., 831 F.3d 352, 355 (6th Cir. 2016) (applying Section 230 to “automated editorial acts”).

209 Force, 934 F.3d at 70.

210 Id. at 66 (“[W]e find no basis . . . for concluding that an interactive computer service is not the ‘publisher’ of thirdparty information when it uses tools such as algorithms that are designed to match that information with a consumer’s

interests.”) (citing Fair Hous. Council v. Roommates.com, Inc., 521 F.3d 1157, 1172 (9th Cir. 2008) (en banc)).

211 Klayman v. Zuckerberg, 753 F.3d 1354, 1358 (D.C. Cir. 2014); accord Kimzey v. Yelp! Inc., 836 F.3d 1263, 1270

(9th Cir. 2016) (characterizing a rating system based on third-party input as a “neutral tool”).

212 Marshall’s Locksmith Serv., 925 F.3d at 1271.

213 Id.

214 Force, 934 F.3d at 70.

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The Ninth Circuit reached a similar conclusion in a since-vacated decision in Gonzalez v. Google

LLC, which also involved claims brought by victims of terrorist attacks against social media

providers.215 As in Force, two members of the three-judge panel held that Section 230 would bar

these claims because they sought to impose liability based on a decision not to remove terrorist

content and because Google’s algorithms applied to terrorist content no differently than they

applied to other content.216 The Supreme Court granted certiorari in Gonzalez, but vacated the

Ninth Circuit’s judgment without addressing Section 230.217

Section 230(c)(2)(A): Restricting Access to Objectionable Material

Section 230(c)(2)(A) states that service providers and users may not “be held liable” for

voluntary, “good faith” actions “to restrict access to or availability of material that the provider or

user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise

objectionable, whether or not such material is constitutionally protected.”218 This provision is

more limited than Section 230(c)(1) in a few ways. First, as discussed above,219 while a number

of courts have held that Section 230(c)(1) shields decisions both to distribute and to restrict

others’ content, Section 230(c)(2) applies only to decisions to restrict content. For example,

providers have successfully invoked Section 230(c)(2) in claims challenging decisions to restrict

user videos,220 suspend accounts,221 prevent unsolicited bulk emails,222 or not to run certain ads.223

In addition, unlike Section 230(c)(1), Section 230(c)(2) applies only to voluntary, good-faith

actions, and it applies only to the listed categories of “objectionable” material.224 These limits on

Section 230(c)(2) immunity have been litigated in the courts and have led courts to conclude, in

some circumstances, that providers cannot claim Section 230 immunity.225

215

Gonzalez v. Google LLC, 2 F.4th 871 (9th Cir. 2021), vacated, 598 U.S. 617 (2023) (per curiam).

216 Id. at 892, 896.

217 Gonzalez v. Google LLC, 598 U.S. 617, 621 (2023) (per curiam) (ruling the complaint failed to state a claim for

aiding and abetting an act of international terrorism).

218 47 U.S.C. § 230(c)(2)(A).

219 Supra note 82 and accompanying text.

220 E.g., Divino Grp. LLC v. Google LLC, No. 19-cv-04749-VKD, 2022 WL 4625076, at *18 (N.D. Cal. Sept. 30,

2022) (involving state discrimination and unfair competition claims).

221 E.g., Berenson v. Twitter, Inc., No. 21-09818, 2022 WL 1289049, at *2 (N.D. Cal. Apr. 29, 2022) (involving,

among others, federal and state unfair competition laws and state common carrier law); Dipp-Paz v. Facebook, No. 18CV-9037, 2019 WL 3205842, at *3 (S.D.N.Y. July 12, 2019) (involving constitutional free speech claims).

222 E.g., Green v. Am. Online (AOL), 318 F.3d 465, 473 (3rd Cir. 2003) (involving negligence, breach of contract,

constitutional free speech, and consumer fraud claims); Holomaxx Techs. v. Microsoft Corp., 783 F. Supp. 2d 1097,

1105 (N.D. Cal. 2011) (involving, among others, intentional interference with contract and intentional interference with

prospective business advantage claims); e360Insight, LLC v. Comcast Corp., 546 F. Supp. 2d 605, 607 (N.D. Ill. 2008)

(involving federal Computer Fraud and Abuse Act, constitutional free speech, tortious interference with prospective

economic advantage, and consumer fraud claims).

223 E.g., Langdon v. Google, Inc., 474 F. Supp. 2d 622, 630–31 (D. Del. 2007) (involving free speech, fraud, breach of

contract, deceptive business practices, and “public calling” claims).

224 See 47 U.S.C. § 230(c). See also, e.g., Fyk v. Facebook, Inc., 808 Fed. App’x 597, 598 (9th Cir. 2020) (“Unlike 47

U.S.C. § 230(c)(2)(A), nothing in § 230(c)(1) turns on the alleged motives underlying the editorial decisions of the

provider of an interactive computer service.”). As discussed below, some courts have interpreted these categories

broadly. See infra “Objectionable Material.”

225 See, e.g., Enhanced Athlete Inc. v. Google LLC, No. 19-cv-08260-HSG, 2020 WL 4732209, at *4 (N.D. Cal. Aug.

14, 2020); e-ventures Worldwide, LLC v. Google, Inc., No. 2:14-cv-646-FtM-PAM-CM, 2017 WL 2210029, at *3

(M.D. Fla. Feb. 8, 2017); Darnaa, LLC v. Google, Inc., No. 15-cv-03221-RMW, 2016 WL 6540452, at *8 (N.D. Cal.

Nov. 2, 2016).

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Section 230: An Overview

Good Faith

Providers or users may claim immunity under Section 230(c)(2)(A) only if they act in “good

faith.”226 The statute does not itself define what it means to act in good faith, and courts have

applied a few different understandings of the term. Some trial court decisions have denied

immunity and allowed claims to proceed where the plaintiff alleged that a service provider acted

with an anticompetitive motive.227 For example, one court declined to dismiss a lawsuit alleging

that Google had engaged in unfair competition by removing a company’s websites from its search

results.228 Although Google said it had removed the results because they were “webspam” that

violated its guidelines, the plaintiff claimed that Google actually had acted with an

anticompetitive motive, because the plaintiff, which specialized in search engine optimization,

“was cutting into Google’s revenues.”229 The court ruled that the plaintiff had presented enough

evidence “to raise a genuine issue of fact” as to whether Google acted in good faith, preventing

the court from dismissing the claim under Section 230.230 To take another example, a different

court allowed a claim to proceed where the plaintiff alleged that YouTube removed her video to

punish her for working with a competitor rather than buying Google’s advertising services.231

In evaluating whether a provider acted in good faith, courts have also looked to whether the

provider’s rationale for restricting content is “pretextual.”232 As one trial court put it, for a

removal to be made in good faith, “the provider must actually believe that the material is

objectionable for the reasons it gives.”233 Under this view, if a provider says it is enforcing its

faith.234 Another trial court concluded that a service provider could be seen as acting in bad faith

when the provider “failed to respond to [the user’s] repeated requests for an explanation.”235

In comparison, one trial court suggested that “selective enforcement” of a policy alone would not

be enough to demonstrate bad faith.236 A mere mistake may be similarly insufficient.237 One trial

court rejected allegations that Google acted in bad faith by sending emails from the Republican

226 47 U.S.C. § 230(c)(2)(A).

227 See Darnaa, 2016 WL 6540452, at *8–9 (involving allegation that Google removed plaintiff’s video from YouTube

because the plaintiff refused to allow Google to embed advertising in the video). Cf. Spy Phone Labs LLC v. Google

Inc., No. 15-cv-03756-KAW, 2016 WL 6025469, at *8 (N.D. Cal. Oct. 14, 2016) (involving allegation that Google was

retaliating against plaintiff for submitting a trademark infringement complaint against another app).

228 e-ventures Worldwide, LLC, 2017 WL 2210029, at *1–2. Specifically, the lawsuit involved claims of “unfair

competition under the Lanham Act, 15 U.S.C. § 1125(a); violation of Florida’s Deceptive and Unfair Trade Practices

Act; and tortious interference with contractual relationships.” Id. at *2.

229 Id. at *1.

230 Id. at *3.

231 Darnaa, 2016 WL 6540452, at *8–9.

232 Spy Phone Labs LLC, 2016 WL 6025469, at *8; accord GCM Partners, LLC v. Hipaaline Ltd., No. 20 C 6401, 2020

WL 6867207, at *13 (N.D. Ill. Nov. 23, 2020).

233 Darnaa, 2016 WL 6540452, at *8.

234 Id.; Spy Phone Labs, 2016 WL 6025469, at *8. But see Langdon v. Google, Inc., 474 F. Supp. 2d 622, 631 (D. Del.

2007) (rejecting plaintiff’s assertion that the provider acted in bad faith because it gave false reasons for declining to

run his ads, on the grounds that the provider must have permissibly concluded they were “otherwise objectionable”).

235 Smith v. Trusted Universal Standards in Elec. Transactions, Inc., No. 09-4567, 2011 WL 900096, at *9 (D.N.J. Mar.

15, 2011).

236 Spy Phone Labs, 2016 WL 6025469, at *8. See also e360Insight, LLC v. Comcast Corp., 546 F. Supp. 2d 605, 609

(N.D. Ill. 2008) (ruling that plaintiff did not sufficiently plead an “absence of good faith” even though the plaintiff

claimed the provider “singl[ed] out” the plaintiff).

237 e360Insight, LLC, 546 F. Supp. 2d at 609; Deutsch v. Microsoft Corp., No. 22-2904, 2023 WL 2966947, at *6

(D.N.J. Apr. 17, 2023).

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National Committee (RNC) to users’ spam folders.238 The RNC proffered a study allegedly

showing that Gmail labeled Republican campaign emails as spam at a significantly higher rate

than Democratic emails.239 The court held this study alone did not demonstrate bad faith.240

Among other factors, the court observed that the study did not attribute any motive to Google,

that Google had worked with the RNC to reduce its spam rate, and that the RNC conducted an

internal test suggesting technical features rather than content affected the spam rate.241

Objectionable Material

The second important limitation on Section 230(c)(2)(A) immunity is that it applies only when

providers or users restrict the listed types of content: “material that the provider or user considers

to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise

objectionable.”242 Although this list includes only specific types of content, it can still be

interpreted relatively broadly. In particular, some courts have interpreted the catch-all phrase

“otherwise objectionable” broadly because Section 230(c)(2)(A) states that the provider or user is

the one who determines whether the content is objectionable.243 As one court noted, the statute’s

text injects “a subjective element” into this inquiry, by asking whether “the provider or user

considers” the content to be objectionable.244 Thus, some courts have concluded that material

classified as spam or malware can be considered “harassing” or “objectionable” under Section

230(c)(2)(A).245 In some cases, courts have looked to providers’ policies to determine whether the

providers considered the restricted material objectionable.246

In 2009, one Ninth Circuit judge expressed concern about interpreting “otherwise objectionable”

too broadly, cautioning that “the literal terms of” Section 230(c)(2)(A) could be read to grant

providers “free license to unilaterally block the dissemination of material by content

providers.”247 While the “good faith” provision discussed above limits providers’ discretion,248

some courts have concluded that “otherwise objectionable” should also be read more narrowly to

238 Republican Nat’l Comm. v. Google, Inc., No. 2:22-cv-01904, 2023 WL 5487311, at *6 (E.D. Cal. Aug. 24, 2023).

239 Id.

240 Id.

241 Id.

242 47 U.S.C. § 230(c)(2)(A).

243 See, e.g., e360Insight, 546 F. Supp. 2d at 607–08.

244 Id. at 608. See also, e.g., Zango, Inc. v Kaspersky Lab, Inc., No. 07-0807-JCC, 2007 WL 5189857, at *4 (W.D.

Wash. Aug. 28, 2007) (“Section 230(c)(2)(A), which provides the definition of the relevant material described in

Section 230(c)(2)(B), does not require that the material actually be objectionable; rather, it affords protection for

blocking material ‘that the provider or user considers to be’ objectionable.” (quoting 47 U.S.C. § 230(c)(2)(A))), aff’d,

568 F.3d 1169 (9th Cir. 2009). Cf. Holomaxx Techs. v. Microsoft Corp., 783 F. Supp. 2d 1097, 1104 (N.D. Cal. 2011)

(“No court has articulated specific, objective criteria to be used in assessing . . . a provider’s subjective determination

of what is ‘objectionable’ . . . . Here, however, it is clear . . . that Microsoft reasonably could conclude that Holomaxx’s

emails were ‘harassing’ and thus ‘otherwise objectionable.’” (emphasis added)).

245 E.g., e-ventures Worldwide, LLC v. Google, Inc., No. 2:14-cv-646-FtM-PAM-CM, 2017 WL 2210029, at *3 (M.D.

Fla. Feb. 8, 2017) (“[S]pam is undoubtedly ‘harassing’ or ‘objectionable’ content for purposes of the CDA.”). See also

Zango, 2007 WL 5189857, at *4 (“There is no question that [the provider] considers the software to be objectionable

[as malware].”); Langdon v. Google, Inc., 474 F. Supp. 2d 622, 631 (D. Del. 2007) (concluding implicitly, without

discussion, that Section 230 barred plaintiff’s lawsuit because Google considered his ads “otherwise objectionable”).

246 E.g., e360Insight, 546 F. Supp. 2d at 608.

247 Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1178 (9th Cir. 2009) (Fisher, J., concurring).

248 Cf. id. at 1179 (expressing concern that Section 230(c)(2)(B) does not contain a good faith limitation).

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Section 230: An Overview

avoid giving providers this free license.249 For example, one trial court denied Section 230

immunity to YouTube in a case challenging YouTube’s decision to remove a video because its

view count had allegedly been artificially inflated.250 The court noted that the ordinary meaning

of “objectionable” could include anything a provider finds undesirable, but ultimately concluded

that such a broad definition was inconsistent with “the context, history, and purpose” of Section

230.251 Looking to the list of adjectives preceding “otherwise objectionable,” the court believed

that Congress was focused on “potentially offensive materials, not simply any materials

undesirable to a content provider or user.”252 Consequently, the court said that “it is hard to

imagine that the phrase includes . . . the allegedly artificially inflated view count.”253

Similarly looking to congressional intent, the Ninth Circuit held in a 2019 case that the term

“otherwise objectionable” should be interpreted to exclude anticompetitive conduct.254 At the

same time, however, the court emphasized the “breadth of the term” and concluded it should be

read more broadly than the specific categories preceding the “catchall phrase.”255 This Ninth

Circuit ruling interpreted Section 230(c)(2)(B) and is discussed in more detail below. 256

Section 230(c)(2)(B): Enabling Access Restriction

Section 230(c)(2)(B) provides that service providers and users may not “be held liable” for

actions “taken to enable or make available to . . . others the technical means to restrict access to

material” that falls within the specific categories listed in Section 230(c)(2)(A).257 Accordingly,

Section 230(c)(2)(B) focuses on enabling others to restrict access to objectionable material, and

offers immunity to, for example, “providers of programs that filter adware and malware,”258 as

well as services that enable the filtering of spam email.259 Courts have concluded that companies

249 See, e.g., Enigma Software Grp. USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040, 1050 (9th Cir. 2019); Song Fi

Inc. v. Google, Inc., 108 F. Supp. 3d 876, 884 (N.D. Cal. 2015); Darnaa, LLC v. Google, Inc., No. 15-cv-03221-RMW,

2016 WL 6540452, at *8 (N.D. Cal. Nov. 2, 2016).

250 Song Fi, 108 F. Supp. 3d at 882.

251 Id. at 882, 884.

252 Id. See also Darnaa, 2016 WL 6540452, at *8 (“The context of § 230(c)(2) appears to limit the term [objectionable]

to that which the provider or user considers sexually offensive, violent, or harassing in content.”).

253 Song Fi, 108 F. Supp. 3d at 883.

254 Enigma Software Grp. USA, 946 F.3d at 1045 (“[T]he phrase ‘otherwise objectionable’ does not include software

that the provider finds objectionable for anticompetitive reasons.”); id. at 1051 (“Congress wanted to encourage the

development of filtration technologies, not to enable software developers to drive each other out of business.”).

255 Id. at 1051; see also id. at 1052 (“We think that the catchall was more likely intended to encapsulate forms of

unwanted online content that Congress could not identify in the 1990s.”). See also, e.g., Word of God Fellowship, Inc.

v. Vimeo, Inc., 166 N.Y.S.3d 3, 7–8 (N.Y. App. Div. 2022) (rejecting a narrow reading of “objectionable” given the

differences in the categories and concluding “vaccine misinformation may be ‘otherwise objectionable’ content that

providers are entitled to remove”).

256 Infra notes 271 to 277 and accompanying text.

257 47 U.S.C. § 230(c)(2)(B). Although Section 230(c)(2)(B) refers to “material described in paragraph (1),” a note in

the United States Code indicates that this is likely meant to reference “subparagraph (A)” instead. Id. n.1.

258 Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1174 (9th Cir. 2009). See generally, e.g., Russell A. Miller, The

Legal Fate of Internet Ad-Blocking, 24 B.U. J. SCI. & TECH. L. 301, 358–60 (2018) (discussing how Section

230(c)(2)(B) might protect ad-blocking firms from liability).

259 Smith v. Trusted Universal Standards in Elec. Transactions, Inc., No. 09-4567, 2011 WL 900096, at *6 (D.N.J. Mar.

15, 2011) (granting Section 230(c)(2)(B) immunity to service that investigated and provided information about IP

addresses, “help[ing] information content providers restrict access to spam email”); id. at *8 (granting Section

230(c)(2)(B) immunity to software that “provide[d] Comcast with a means to restrict access to harassing spam email”).

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Section 230: An Overview

like Facebook are also eligible for Section 230(c)(2)(B) immunity, to the extent they provide

users with tools to hide or otherwise restrict their own access to content.260

The fact that a company provides users with the choice to opt out of receiving certain content,

however, may not always be sufficient to gain Section 230(c)(2)(B) immunity.261 In one case, a

plaintiff sued Yahoo! for sending automated text message notifications about messages the

plaintiff had received on Yahoo! Messenger.262 Yahoo! claimed that the suit was barred by Section

230(c)(2)(B) because the text message “include[d] a link to a help page which . . . contain[ed]

instructions on how to block further messages,” and accordingly, made “available the ‘technical

means to restrict access’ to messages which plaintiff might deem ‘objectionable.’”263 The trial

court rejected this claim, noting that because the text message notifications were sent

automatically, “neither Yahoo! nor the mobile phone user ha[d] the opportunity to determine

whether the third party message” was objectionable.264 Accordingly, the court held that Yahoo!

could not claim Section 230(c)(2)(B) immunity where it “did not engage in any form of content

analysis of the subject text to identify material that was offensive or harmful prior to the

automatic sending of a notification message.”265

Because Section 230(c)(2)(B) applies only to actions restricting the types of content listed in

Section 230(c)(2)(A),266 it implicates the same interpretive questions discussed above regarding

whether the provider or user considered the restricted material “to be obscene, lewd, lascivious,

filthy, excessively violent, harassing, or otherwise objectionable.”267 However, unlike Section

230(c)(2)(A), Section 230(c)(2)(B) does not contain an explicit requirement for the provider or

user to act in good faith.268 Thus, one Ninth Circuit judge expressed concern that Section

230(c)(2)(B) could be read to grant immunity to bad faith conduct, including “covert,

anticompetitive blocking” of competitors.269 The judge believed it was “very likely” that

Congress “did not intend to immunize” such conduct.270

In a 2019 decision, Enigma Software Group USA, LLC v. Malwarebytes, Inc., the Ninth Circuit

held that Section 230(c)(2)(B) did not block a suit alleging anticompetitive conduct.271 A

company that sold computer security software sued a competitor after the competitor began

flagging some of the plaintiff’s programs as “potentially unwanted programs.”272 The plaintiff

260 Fehrenbach v. Zeldin, No. 17-CV-5282, 2018 WL 4242452, at *5 (E.D.N.Y. Aug. 6, 2018) (holding that Section

230(c)(2)(B) immunized Facebook from a complaint premised on the fact that Facebook allows users to hide

comments).

261 Sherman v. Yahoo! Inc., 997 F. Supp. 2d 1129, 1138 (S.D. Cal. 2014).

262 Id. at 1130.

263 Id. at 1137 (quoting 47 U.S.C. § 230(c)(2)).

264 Id. at 1138.

265 Id.

266

47 U.S.C. § 230(c)(2)(B).

267 Id. § 230(c)(2)(A); supra “Objectionable Material.”

268 47 U.S.C. § 230(c)(2). See also, e.g., Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1177 (9th Cir. 2009)

(holding that allegations that provider acted in bad faith did not preclude dismissal of suit under Section 230(c)(2)(B)

because this subparagraph “has no good faith language,” and noting that the plaintiff waived any argument that the

provision “should be construed implicitly to have a good faith component”).

269 Zango, 568 F.3d at 1179 (Fisher, J., concurring).

270 Id.; see also id. at 1179 n.3 (“[T]he legislative history the parties cite is not helpful in determining the exact

boundaries of what Congress intended to immunize. Whatever those exact boundaries, I doubt Congress intended to

leave victims of malicious or anticompetitive blocking without a cause of action . . . .”).

271 Enigma Software Grp. USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040, 1045 (9th Cir. 2019).

272 Id. at 1047–48.

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Section 230: An Overview

argued that this characterization served “as a ‘guise’ for anticompetitive conduct.”273 In evaluating

the competitor’s attempt to claim immunity under Section 230(c)(2)(B), the Ninth Circuit looked

to Section 230’s purpose, concluding that “Congress wanted to encourage the development of

filtration technologies, not to enable software developers to drive each other out of business.”274

Accordingly, the court rejected the idea that the competitor could claim immunity “regardless of

anticompetitive purpose.”275 The court believed that the term “objectionable” is not limited only

to “material that is sexual or violent in nature,” and can encompass other “forms of unwanted

online content that Congress could not identify in the 1990s.”276 But “if a provider’s basis for

objecting to and seeking to block materials is because those materials benefit a competitor,” the

court held that the provider could not claim Section 230 immunity.277

This decision was appealed to the Supreme Court, and although the Court declined the appeal, the

case garnered a number of amicus briefs from parties interested in the case, as well as a separate

statement from Justice Thomas respecting the denial of certiorari.278 Interest groups argued that

the Ninth Circuit’s decision improperly imported a “good faith” requirement into Section

230(c)(2)(B), even though the text did not contain such a limitation.279 In an opinion concurring

in the Court’s decision to deny certiorari, Justice Thomas argued that the Ninth Circuit decision—

and other decisions interpreting Section 230—improperly “relied on purpose and policy” rather

than textual arguments, creating “questionable precedent.”280 It remains to be seen whether courts

outside the Ninth Circuit will agree with its ruling.

Section 230(e): Exceptions

As detailed above, Section 230(e) outlines five exceptions to the immunity created by Section

230.281 A defendant cannot claim Section 230 immunity as a basis to dismiss a federal criminal

prosecution or any lawsuit brought under intellectual property laws, state laws that are consistent

with Section 230, certain electronic communications privacy laws, or certain sex trafficking

laws.282 Outside of these exceptions, courts have generally held that Section 230 will bar

inconsistent liability even under later-enacted federal civil laws.283

273 Id. at 1048. Specifically, the complaint alleged both state law causes of action—deceptive business practices and

tortious interference with business and contractual relations—and a federal claim under the Lanham Act. Id. The Ninth

Circuit also considered whether the Lanham Act claim fell within the Section 230 exception for intellectual property

claims, holding that it did not. Id. at 1045.

274 Id. at 1051.

275 Id.

276 Id. at 1051–52.

277 Id. at 1052. However, the court noted that the defendant provider disputed whether it did engage in “anticompetitive

blocking” and claimed instead that it found the plaintiff’s “programs ‘objectionable’ for legitimate reasons based on the

programs’ content.” Id. The court suggested this factual dispute could be resolved on remand to the lower court. Id.

278 See Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC, 141 S. Ct. 13 (2020).

279 See, e.g., Brief of Electronic Frontier Foundation as Amicus Curiae in Support of Petitioner at 4, Malwarebytes, Inc.,

208 L. Ed. 2d 197 (No. 19-1284); Brief of TechFreedom as Amicus Curiae in Support of Petitioner at 5, Malwarebytes,

Inc., 208 L. Ed. 2d 197 (No. 19-1284).

280 Malwarebytes, Inc., 141 S. Ct. at 13–14 (Thomas, J., statement respecting the denial of certiorari).

281 Supra notes 40 to 49 and accompanying text.

282 See 47 U.S.C. § 230(e).

283 For example, two federal courts of appeals concluded that the Justice Against Sponsors of Terrorism Act, adopted in

2016, did not implicitly repeal Section 230, and Section 230 would therefore bar any inconsistent liability. Gonzalez v.

Google LLC, 2 F.4th 871, 889 (9th Cir. 2021), vacated, 598 U.S. 617 (2023) (ruling on the merits of the claims and

declining to address the application of Section 230); Force v. Facebook, Inc., 934 F.3d 53, 72 (2d Cir. 2019).

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Section 230: An Overview

Federal Criminal Law

The first exception to Section 230 immunity is for “any . . . Federal criminal statute,” meaning

that any defendant in a federal criminal prosecution cannot claim Section 230 immunity.284 For

example, Section 230 does not bar prosecution under federal statutes that prohibit the knowing

distribution of obscene materials online.285 Neither did Section 230 bar the federal prosecution of

Backpage.com corporate entities for conspiracy to engage in money laundering.286 This exception

does not include state criminal laws, and courts have read Section 230 to preempt inconsistent

state criminal prosecutions.287

Most courts to consider the issue have interpreted Section 230(e)(1) to allow only criminal

prosecutions, not civil lawsuits based on violations of federal criminal laws.288 A number of

plaintiffs have argued that, particularly where federal law creates criminal and civil liability for

the same conduct, applying Section 230 to bar suits under a civil enforcement provision would

“impair the enforcement” of the criminal law.289 Several courts have rejected those arguments,290

noting the traditional distinction between criminal and civil liability and concluding that, by

referring only to “criminal” statutes in Section 230(e)(1), Congress intended to exclude civil

suits.291

Intellectual Property Law

The second exception to Section 230 immunity is for “any law pertaining to intellectual

property.”292 This phrase is somewhat ambiguous,293 but courts have concluded that this exception

284 47 U.S.C. § 230(e)(1).

285 See, e.g., 18 U.S.C. § 1462 (making it a crime to “knowingly use[] any . . . interactive computer service . . . for

carriage in interstate or foreign commerce—(a) any obscene, lewd, lascivious, or filthy . . . picture, motion-picture film,

. . . writing, print, or other matter of indecent character; or (b) any obscene, lewd, lascivious, or filthy . . . electrical

transcription, or other article or thing capable of producing sound”).

286 See Press Release, U.S. Dep’t of Justice, Backpage’s Co-founder and CEO, As Well As Several Backpage-Related

Corporate Entities, Enter Guilty Pleas (Apr. 12, 2018), https://www.justice.gov/opa/pr/backpage-s-co-founder-and-ceowell-several-backpage-related-corporate-entities-enter-guilty.

287 See generally, e.g., Voicenet Commc’ns, Inc. v. Corbett, No. 04-1318, 2006 WL 2506318, at *3 (E.D. Pa. Aug. 30,

2006) (interpreting Section 230(e)(1) not to include state criminal laws); see also, e.g., Universal Commc’n Sys., Inc. v.

Lycos, Inc., 478 F.3d 413, 422 (1st Cir. 2007) (dismissing suit under state cyberstalking law because defendant’s

“liability would depend on treating it as the publisher of those postings”); Backpage.com, LLC v. McKenna, 881 F.

Supp. 2d 1262, 1273 (W.D. Wash. 2012) (concluding proposed state legislation “is likely inconsistent with and

therefore expressly preempted by [47 U.S.C. § 230]” because it imposes “liability on Backpage.com and [Internet

Archive] for information created by third parties—namely ads for commercial sex acts depicting minors—so long as it

‘knows’ that it is publishing, disseminating, displaying . . . such information”).

288 See, e.g., Yuksel v. Twitter, Inc., No. 22-cv-05415-TSH, 2022 WL 16748612, at *5 (N.D. Cal. Nov. 7, 2022); but

see Doe #1 v. MG Freesites, Ltd., No. 7:21-cv-00220-LSC, 2022 WL 407147, at *22 (N.D. Ala. Feb. 9, 2022)

(indicating Section 230 did not bar claims under certain civil provisions contained in Title 18); Nieman v. Versuslaw,

Inc., No. 12-3104, 2012 WL 3201931, at *9 (C.D. Ill. Aug. 3, 2012) (saying in dicta that “arguably, § 230 of the CDA

may not be used to bar a civil RICO claim because that would impair the enforcement of a Federal criminal statute”).

Other exceptions do allow specific federal civil claims; for example, civil suits based on certain federal sex trafficking

offenses may be permitted under a different exception. See infra “Sex Trafficking Law (FOSTA).”

289 E.g., Force v. Facebook, Inc., 934 F.3d 53, 71 (2d Cir. 2019); Doe v. Backpage.com, LLC, 817 F.3d 12, 23 (1st Cir.

2016); Doe v. Bates, No. 5:05CV91, 2006 WL 8440858, at *13 (E.D. Tex. Jan. 18, 2006).

290 E.g., Force, 934 F.3d at 72; Backpage.com, 817 F.3d at 23; Bates, 2006 WL 8440858, at *14.

291 See, e.g., Force, 934 F.3d at 71; Backpage.com, 817 F.3d at 23.

292 47 U.S.C. § 230(e)(2).

293 See Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1119 (9th Cir. 2007) (“The CDA does not contain an express

(continued...)

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Section 230: An Overview

for laws “pertaining to intellectual property” allows, for example, suits for copyright and

trademark infringement.294 In evaluating whether Section 230(e)(2) applies, courts have

sometimes looked not only to whether the plaintiff is suing under a law that generally involves

intellectual property issues, but more specifically, whether the plaintiff’s claim itself involves an

intellectual property right.295

For example, the Ninth Circuit ruled in 2019 that a false advertising claim brought under the

Lanham Act did not fall within the Section 230(e)(2) exception.296 The court noted that the

Lanham Act, a federal law, “contains two parts, one governing trademark infringement and

another governing false designations of origin, false descriptions, and dilution.”297 Noting that

Congress intended to provide broad immunity in Section 230, the Ninth Circuit construed the

intellectual property exception narrowly, to include only “claims pertaining to an established

intellectual property right . . . like those inherent in a patent, copyright, or trademark.”298 Because

the false advertising claim did not “relate to or involve trademark rights or any other intellectual

property rights,” the court held that the intellectual property exception did not apply.299 Somewhat

similarly, a New Hampshire trial court held in one case that three “right of privacy” torts—

intrusion upon seclusion, publication of private facts, and casting in a false light—involved rights

that could not be considered property rights.300 Accordingly, the court concluded that the claims

did “not sound in ‘law pertaining to intellectual property’” and Section 230 barred the claims.301

Courts have disagreed about whether Section 230(e)(2) includes state law claims such as the right

to publicity,302 a cause of action that essentially allows plaintiffs to sue for the improper

commercial use of their identity.303 Some courts, including the Third Circuit, have held that the

exception does include state intellectual property claims, allowing, for example, state law claims

for copyright infringement, misappropriation and unfair competition, and right of publicity to

definition of ‘intellectual property,’ and there are many types of claims in both state and federal law which may—or

may not—be characterized as ‘intellectual property’ claims.”).

294 E.g., Parker v. Google, Inc., 422 F. Supp. 2d 492, 503 n.8 (E.D. Penn. 2006); Gucci Am., Inc. v. Hall & Assocs.,

135 F. Supp. 2d 409, 414 (S.D.N.Y. 2001); Malibu Media, LLC v. Weaver, No. 8:14-cv-1580-T-33TBM, 2016 WL

1394331, at *8 (M.D. Fla. Apr. 8, 2016).

295 Enigma Software Grp. USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040, 1052–53 (9th Cir. 2019). See also, e.g.,

Corker v. Costco Wholesale Corp., No. C19-0290RSL, 2019 WL 5895430, at *6 (W.D. Wash. Nov. 12, 2019)

(concluding Section 230(e)(2) did not apply to a false association claim because the claim did “not involve an

intellectual property right or trademark”); Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 302–03 (D.N.H.

2008) (holding that Section 230(e)(2) did not apply to state right of privacy claims that involved personal rights).

296 Enigma Software Grp. USA, 946 F.3d at 1053. However, the court nonetheless concluded that because the claim

was “based on allegations of [anticompetitive] conduct,” it would not apply Section 230(c)(2) to dismiss the claim. Id.

at 1054. This portion of the opinion is discussed supra “Section 230(c)(2)(B): Enabling Access Restriction.”

297 Enigma Software Grp. USA, 946 F.3d at 1053.

298 Id.

299 Id. at 1053–54.

300 Friendfinder Network, Inc., 540 F. Supp. 2d at 302–03.

301 Id. at 303. See also Ratermann v. Pierre Fabre USA, Inc., No. 22-CV-325, 2023 WL 199533, at *5 (S.D.N.Y. Jan.

17, 2023) (concluding Section 230(e)(2) did not apply to a state law construed as creating “a statutory right to privacy,

not property”).

302 See, e.g., Stayart v. Yahoo! Inc., 651 F. Supp. 2d 873, 888–89 (W.D. Wis. 2009) (noting that a right to publicity

claim “is generally considered an intellectual property claim,” implicating this exception, but further noting the

“disagreement among various federal courts regarding the scope of the intellectual property exception,” and ultimately

dismissing the claim on jurisdictional grounds); see also Friendfinder Network, Inc., 540 F. Supp. 2d at 302 (holding

that a state right of publicity claim “arises out of a ‘law pertaining to intellectual property’ within the meaning of” 47

U.S.C. § 230(e)(2)).

303 See, e.g., ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 928–37 (6th Cir. 2003) (discussing the right of publicity).

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proceed.304 These courts have noted that the exception refers broadly to “any law,”305 and that

other provisions of Section 230 distinguish between state and federal law, suggesting that “any

law” includes both state and federal laws.306

In contrast, the Ninth Circuit has held that Section 230(e)(2) encompasses only federal laws and

that Section 230 bars state intellectual property claims.307 In Perfect 10, Inc. v. CCBill LLC, the

Ninth Circuit looked to Congress’s policy goals and “construe[d] the term ‘intellectual property’

to mean ‘federal intellectual property.’”308 The court observed that state intellectual property laws

“are by no means uniform,” and could subject websites to varied liability schemes.309 In the view

of the court, this outcome “would be contrary to Congress’s expressed goal of insulating the

development of the Internet from the various state-law regimes.”310 The Ninth Circuit did not

discuss the fact that the text of Section 230(e)(2) refers to “any law,” noting only that the term

“intellectual property” was undefined.311

State Law

The third exception provides that Section 230 will not “prevent any State from enforcing any

State law that is consistent with this section,” allowing states to continue enforcing any laws that

are “consistent” with Section 230.312 As one trial court described this provision, “Section

230(e)(3) does not attempt to define what state law is consistent and inconsistent with the CDA;”

in effect, this subsection “provides no substantive content.”313 In evaluating whether a state law,

or a particular application of a state law, is consistent with Section 230 or whether it is instead

inconsistent and preempted, courts have looked to whether the law would violate Section

230(c)(1) by treating service providers or users as the publisher of another person’s content.314

Accordingly, for example, one court concluded that a libel claim that would hold a website

304

Hepp v. Facebook, 14 F.4th 204, 210 (3d Cir. 2021); Atl. Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d.

690, 694, 704 (S.D.N.Y. 2009); Friendfinder Network, Inc., 540 F. Supp. 2d at 302; Albert v. Tinder, Inc., No. 2260496-CIV, 2022 WL 18776124, at *11 (S.D. Fla. Aug. 5, 2022). The First Circuit suggested in one decision that a

state trademark claim was “not subject to Section 230 immunity.” Universal Commc’n Sys., Inc. v. Lycos, Inc., 478

F.3d 413, 422–23 (1st Cir. 2007). Courts have debated whether this conclusion was dicta, given that the First Circuit

ultimately concluded that the claim “would not survive” even if Section 230 did not apply. Id. at 423; compare

Friendfinder Network, Inc., 540 F. Supp. 2d at 299 (describing this statement as dicta), with Hepp, 14 F.4th at 210

(saying the merits discussion “was necessary only because” of the court’s Section 230(e)(2) ruling).

305 47 U.S.C. § 230(e)(2) (emphasis added).

306 Hepp, 14 F.4th at 210–11; Atl. Recording Corp., 603 F. Supp. 2d. at 703–04; Friendfinder Network, Inc., 540 F.

Supp. 2d at 299–300.

307 See, e.g., Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1119 (9th Cir. 2007).

308 Perfect 10, Inc., 488 F.3d at 1118–19.

309 Id. at 1118.

310 Id.

311 See id. at 1119; see also, e.g., Friendfinder Network, Inc., 540 F. Supp. 2d at 299 (“The Ninth Circuit made no

attempt to reckon with the presence of the term ‘any’—or for that matter, the absence of term ‘federal’—in § 230(e)(2)

when limiting it to federal intellectual property laws.”).

312 47 U.S.C. § 230(e)(3).

313 Atl. Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d. 690, 694, 702 (S.D.N.Y. 2009).

314 Compare, e.g., HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676, 683 (9th Cir. 2019) (holding that an

ordinance regulating home rentals “is not ‘inconsistent’ with the CDA” because it would not impose a duty on websites

to monitor third-party content), with, e.g., Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1273 (W.D. Wash.

2012) (holding that a state criminal law “is likely inconsistent with and therefore expressly preempted by Section 230”

because it would impose liability on websites for third-party content). Cf. Dangaard v. Instagram, LLC, No. C 2201101 WHA, 2022 WL 17342198, at *5 (N.D. Cal. Nov. 30, 2022) (citing Section 230(e)(3) and the “policy”

provisions in Section 230(b) as additional support for a ruling that Section 230(c)(1) did not bar certain claims).

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operator “liable for statements he actually authored” was “consistent with” Section 230 and could

proceed.315

Electronic Communications Privacy Act of 1986

The fourth exception to Section 230 immunity is for claims brought under the Electronic

Communications Privacy Act of 1986 (ECPA) “or any similar State law.”316 ECPA is a federal law

that governs wiretapping and electronic eavesdropping.317 ECPA creates a number of criminal

offenses, which would fall within the first exception for federal crimes,318 but also contains civil

liability provisions, which fall within this fourth exception.319 Perhaps most relevant to service

providers that host user-generated content, ECPA makes it unlawful not only to intercept covered

communications intentionally, but also to disclose information intentionally if the person “ha[s]

reason to know that the information was obtained through” an unlawful interception.320 However,

the Seventh Circuit ruled in one case that this exception did not allow a lawsuit against companies

that provided web hosting services to people who sold illegally obtained videos.321 The court said

the plaintiffs had not shown that the web service companies had “disclose[d] any

communication,” declining to impose secondary liability on the web service providers absent

evidence that the companies provided “culpable assistance” to the “wrongdoer.”322

Sex Trafficking Law (FOSTA)

The fifth exception to Section 230 immunity was added in 2018 by the Allow States and Victims

to Fight Online Sex Trafficking Act of 2017 (FOSTA) and relates to certain sex trafficking

offenses.323 Specifically, Section 230(e)(5) provides that Section 230 will not bar (1) federal324

civil actions “brought under” 18 U.S.C. § 1595 “if the conduct underlying the charge would

constitute a violation of” 18 U.S.C. § 1591, which prohibits knowingly engaging in sex

trafficking of minors or in sex trafficking that involves force, fraud, or coercion, or knowingly

benefiting from participation in a venture that engaged in such an act;325 (2) state criminal

315 Cisneros v. Sanchez, 403 F. Supp. 2d 588, 592 (S.D. Tex. 2005) (emphasis added).

316 47 U.S.C. § 230(e)(4). See also, e.g., Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 421 (1st Cir. 2007)

(“We note that liability under the ECPA is specifically exempted from Section 230 immunity.”).

317 See generally CRS Report R41733, Privacy: An Overview of the Electronic Communications Privacy Act, by

Charles Doyle.

318 See 47 U.S.C. § 230(e)(1).

319 See id. § 230(e)(4).

320 18 U.S.C. §§ 2511 (outlining the prohibitions), 2520 (authorizing civil suits).

321 Doe v. GTE Corp., 347 F.3d 655, 662 (7th Cir. 2003).

322 Id. at 658–59.

323 Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No. 115-164, § 4, 132 Stat. 1253,

1254 (2018). One state court described Section 230(e)(5) as a “rule of construction” going beyond a mere exception

applicable to the specified claims. In re Facebook, Inc., 625 S.W.3d 80, 100 (Tex. 2021). A number of federal courts

have described it as an “exception.” E.g., Does v. Reddit, Inc., 51 F.4th 1137, 1140 (9th Cir. 2022); Doe #1 v. MG

Freesites, Ltd., No. 7:21-cv-00220-LSC, 2022 WL 407147, at *10 (N.D. Ala. Feb. 9, 2022).

324 While one state court concluded Section 230(e)(5) also allows state civil suits that are “materially indistinguishable”

from liability under 18 U.S.C. § 1595, a number of federal courts have disagreed with this view, concluding Section

230(e)(5) does not allow state civil lawsuits. Compare In re Facebook, Inc., 625 S.W.3d at 100, with, e.g., Doe v.

Reddit, Inc., No. SACV 21-768 JVS(KESx), 2021 WL 4348731, at *5 (C.D. Cal. July 12, 2021), and J.B. v. G6 Hosp.,

LLC, No. 19-cv-07848-HSG, 2020 WL 4901196, at *7 (N.D. Cal. Aug. 20, 2020).

325 “Participation in a venture” is in turn defined as “knowingly assisting, supporting, or facilitating a violation” of

these provisions. 18 U.S.C. § 1591(e)(4). The D.C. Circuit concluded that this provision prohibits “aiding and abetting

sex trafficking.” Woodhull Freedom Found. v. United States, 72 F.4th 1286, 1298–99 (D.C. Cir. 2023).

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prosecutions where the underlying conduct would violate 18 U.S.C. § 1591; and (3) state criminal

prosecutions where the underlying conduct would violate 18 U.S.C. § 2421A, which prohibits

“operat[ing] an interactive computer service . . . with the intent to promote or facilitate the

prostitution of another person” in jurisdictions where such conduct is illegal.326 There has been

significant litigation over the scope of this exception.

The FOSTA exception will apply only if a private plaintiff or state prosecutor can demonstrate

that the service provider or user violated the specified federal laws.327 A number of early cases

considering the scope of this exception faced disagreements over whether the plaintiff had to

prove a violation of the criminal law, 18 U.S.C. § 1591, or merely a violation of 18 U.S.C.

§ 1595, the provision allowing civil actions.328 This distinction was significant because the two

provisions have slightly distinct elements: most significantly, different mens rea, or mental state,

requirements. As stated by one trial court, while both statutes authorize liability against

“beneficiaries” of a sex trafficking venture, “the criminal statute requires that the defendant have

actual knowledge of sex trafficking at issue while the civil statute allows a plaintiff to plead that

the defendant merely had constructive knowledge.”329

The Ninth Circuit and a number of trial courts have adopted the former reading, requiring

plaintiffs to prove the defendant violated the criminal law in order to avoid Section 230

immunity.330 In Does 1–6 v. Reddit, Inc., for example, the Ninth Circuit considered claims

alleging that the social media platform Reddit had “done little to remove” or prevent sexually

explicit images and videos of minors because such images and videos “drive[] user traffic” and

contribute to “substantial advertising revenue.”331 The plaintiffs alleged the FOSTA exception

applied and Reddit was liable “as a beneficiary of child sex trafficking.”332 To qualify for the

exception, the Ninth Circuit held that the “defendant-website’s own conduct must ‘underl[ie]’ the

claim” and violate the criminal provisions in 18 U.S.C. § 1591.333 Thus, the plaintiff had to prove

the website violated that law “by directly sex trafficking or, with actual knowledge, ‘assisting,

supporting, or facilitating’ trafficking.”334 In addition to requiring beneficiaries to possess actual

knowledge, the Ninth Circuit held that “mere association with sex traffickers” was insufficient to

violate the criminal law “absent some knowing ‘participation’ in the form of assistance, support,

or facilitation.”335 In the case before it, the Ninth Circuit concluded that the plaintiffs had alleged

326 47 U.S.C. § 230(e)(5).

327 See id.

328 See, e.g., Doe #1 v. MG Freesites, Ltd., No. 7:21-cv-00220-LSC, 2022 WL 407147, at *11–15 (N.D. Ala. Feb. 9,

2022) (acknowledging the disagreement and differing judicial resolutions but avoiding the question).

329 Id. at *11. 18 U.S.C. § 1595 provides: “An individual who is a victim of a violation of this chapter may bring a civil

action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from

participation in a venture which that person knew or should have known has engaged in an act in violation of this

chapter) . . . .” (emphasis added).

330 Does 1–6 v. Reddit, Inc., 51 F.4th 1137, 1141 (9th Cir. 2022); see also, e.g., M.H. & J. v. Omegle.com, LLC, No.

8:21-cv-814-VMC-TGW, 2022 WL 93575, at *6 (M.D. Fla. Jan. 10, 2022), appeal filed, No. 22-10338 (11th Cir. Jan.

31, 2022); Doe v. Kik Interactive, Inc., 482 F. Supp. 3d 1242, 1251 (S.D. Fla. 2020).

331 Does 1–6, 51 F.4th at 1139–40.

332 Id. at 1140.

333 Id. at 1143 (quoting 47 U.S.C. § 230(e)(5)(A)).

334 Id. at 1145 (quoting 18 U.S.C. § 1591(e)(4)).

335 Id. In another case, the D.C. Circuit concluded that 18 U.S.C. § 1591(e)(4) prohibits “aiding and abetting sex

trafficking,” or more precisely, “prohibits aiding and abetting a venture that one knows to be engaged in sex trafficking

while knowingly benefiting from that venture.” Woodhull Freedom Found. v. United States, 72 F.4th 1286, 1298–99

(D.C. Cir. 2023).

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“only that Reddit ‘turned a blind eye’ to the unlawful content posted on its platform, not that it

actively participated in sex trafficking.”336

In contrast, the Seventh Circuit allowed broader liability in G.G. v. Salesforce.com, Inc.—

although its ruling did not weigh in on Section 230(e)(5).337 The minor plaintiff in that case was

trafficked on Backpage.com, and she alleged that Salesforce, which generally provides customer

relationship management software, “knowingly benefited from its participation in what it knew or

should have known was Backpage’s sex-trafficking venture.”338 The plaintiff alleged Salesforce

provided Backpage.com with specialized software and support that created a “close business

relationship.”339 The Seventh Circuit held that the allegations involving constructive knowledge

stated a claim under 18 U.S.C. § 1595 and avoided dismissal under Section 230.340 However, the

Seventh Circuit did not consider the scope of the FOSTA exception, instead concluding that

Section 230(c) did not apply on its own terms.341

Reform Proposals and Considerations for Congress

This section of the report discusses various proposals to reform Section 230, as well as some of

the legal considerations implicated by those proposals, including relevant First Amendment

issues. The report focuses primarily on examples of bills introduced in the 116th and 117th

Congresses that would have amended Section 230.342 The report does not discuss bills that would

have directly regulated content moderation practices such as by restricting the use of certain

algorithms or other design features, or imposing disclosure or transparency requirements outside

the Section 230 framework.

Overview of Reform Proposals and Select Legal Considerations

Following the enactment of FOSTA in 2018, Members of Congress introduced a variety of

proposals to further reform Section 230. There have also been a number of reform proposals from

outside commentators and the executive branch.343 While over 25 bills to amend Section 230

were introduced in each of the 116th and 117th Congresses, and Members of the 118th Congress

continued to introduce such proposals, no further amendments have been enacted.344 Although

there have been many proposals to reform Section 230’s immunity shield, some argue either that

336 Does 1–6, 51 F.4th at 1145. See also J.B. v. Craigslist, Inc., No. 22-15290, 2023 WL 3220913, at *1 (9th Cir. May

3, 2023) (mem.) (affirming trial court’s conclusion that Section 230(e)(5) did not allow lawsuit under 18 U.S.C. § 1595

where defendant lacked actual knowledge).

337 G.G. v. Salesforce.com, Inc., 76 F.4th 544, 548 (7th Cir. 2023).

338 Id. The suit was brought by the minor and her mother, but this report refers to a singular plaintiff for convenience.

339 Id.

340 Id. at 548, 555.

341 Id. at 567–68. This aspect of the case is discussed supra note 134 and accompanying text.

342 Some of the bills referenced in this discussion have been introduced in multiple Congresses, but for brevity, the

report generally only discusses one version.

343 See, e.g., CRS Legal Sidebar LSB10484, UPDATE: Section 230 and the Executive Order on Preventing Online

Censorship, by Valerie C. Brannon et al.; Joe Biden, Republicans and Democrats, Unite Against Big Tech Abuses,

WALL ST. J. (Jan. 11, 2023), https://www.wsj.com/articles/unite-against-big-tech-abuses-social-media-privacycompetition-antitrust-children-algorithm-11673439411.

344 See, e.g., The Telecommunication Act’s “Good Samaritan” Protection: Section 230, DISRUPTIVE COMPETITION

PROJECT, https://www.project-disco.org/featured/section-230/ (last visited Jan. 4, 2024); see also CRS Report R46662,

Social Media: Misinformation and Content Moderation Issues for Congress, by Jason A. Gallo and Clare Y. Cho,

Appendix B (listing bills from the 116th Congress).

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Section 230 should not be changed or that reforms should be modest and carefully considered.345

As commentators have observed, some of the reform proposals may conflict with others and

pursue divergent goals, making it more difficult to predict which of these reform efforts, if any,

may garner sufficient support to be enacted.346

While some Members of Congress have proposed to repeal Section 230 entirely,347 others suggest

more incremental rollbacks, removing immunity only for certain types of claims or certain

providers. Broadly, many proposals to reform Section 230 have pursued one of two distinct goals:

encouraging sites to take down more harmful content, and encouraging sites to take down less

lawful content.348 Some proposals include provisions aimed at both goals, although the goals can

sometimes be in tension depending on what type of content is being targeted. Content seen as

harmful by some may be seen as beneficial by others. The bills that have been introduced have

sought to achieve these goals in a variety of different ways, including by creating new exceptions

to Section 230 or conditioning Section 230 immunity on certain prerequisite actions. Other bills

have focused on procedural aspects of Section 230, such as clarifying that the provision operates

as an “affirmative defense” or does not bar injunctive relief.349

One initial consideration is that proposals to remove Section 230 immunity for either hosting or

taking down certain types of content will not necessarily result in a provider or user being held

liable for that activity. Instead, the result of these proposals is that if a provider would be liable

under some other law, such liability would not be barred by Section 230. Nonetheless, because of

this threat of liability, a service provider may respond to the removal of Section 230 immunity for

specific types of actions by ceasing that action: removing content or no longer engaging in certain

content moderation practices. For example, Craigslist took down its personal ads section in

response to FOSTA, reportedly out of concern that it might face lawsuits based on some of the

activity in that section of its site.350

However, the way any given provider responds to an amendment of Section 230 would depend on

a variety of factors. For instance, if Congress added an exception removing immunity for hosting

certain content, providers might continue to host that content if they believe the benefits of

345 See, e.g., Sen. Ron Wyden, Wyden Remarks at Section 230 Briefing Hosted by EFF (Mar. 8, 2023),

https://www.wyden.senate.gov/news/press-releases/wyden-remarks-at-section-230-briefing-hosted-by-eff; Clyde

Wayne Crews, The Case Against Social Media Content Regulation, COMPETITIVE ENTER. INST. (June 1, 2020),

https://cei.org/issue_analysis/the-case-against-social-media-content-regulation; Eric Goldman, Want to Learn More

About Section 230? A Guide to My Work, TECH. & MKTG. L. BLOG (July 1, 2020),

https://blog.ericgoldman.org/archives/2020/07/want-to-learn-more-about-section-230-a-guide-to-my-work.htm;

Jennifer Huddleston, Does Content Moderation Need Changes to Section 230?, AM. ACTION FORUM (June 18, 2020),

https://www.americanactionforum.org/insight/does-content-moderation-need-changes-to-section-230/.

346 See, e.g., Rebecca Kern, White House Renews Call to ‘Remove’ Section 230 Liability Shield, POLITICO (Sept. 9,

2022), https://www.politico.com/news/2022/09/08/white-house-renews-call-to-remove-section-230-liability-shield00055771; Dean DeChiaro, OK to Change Section 230, Tech CEOs Say, But How Remains Elusive, CONG. Q (Nov. 17,

2020), https://plus.cq.com/doc/news-6052674.

347 E.g., S. 2972, 117th Cong. (2021); H.R. 8896, 116th Cong. (2020). Cf. 21st Century FREE Speech Act, S. 1384,

117th Cong. (2021) (proposing to repeal Section 230 and replace with an altered intermediary liability scheme).

348 Cf. Shaun B. Spencer, The First Amendment and the Regulation of Speech Intermediaries, 106 MAR. L. REV. 1, 8

(2022) (distinguishing “proxy-censor regulations” from “must-carry regulations”).

349 E.g., SAFE TECH Act, S. 299, 117th Cong. § 2(1) (2021).

350 See Brian Feldman, Craigslist’s Legendary Personals Section Shuts Down, N.Y. MAG. (Mar. 23, 2018),

https://nymag.com/intelligencer/2018/03/craigslist-shuts-down-personals-section-because-of-fosta.html. Craigslist

expressly cited FOSTA as the motive for its decision; others speculated that Reddit and Tumblr, among other sites,

made changes to their content policies in response to FOSTA. See, e.g., Paris Martineau, Tumblr’s Porn Ban Reveals

Who Controls What We See Online, WIRED (Dec. 4, 2018), https://www.wired.com/story/tumblrs-porn-ban-revealscontrols-we-see-online.

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Section 230: An Overview

hosting the content outweigh potential litigation costs, particularly if providers believe they are

likely to prevail in any lawsuits or that lawsuits are unlikely. Some have pointed to the outcome in

Stratton Oakmont, Inc., discussed above, to suggest that absent Section 230, sites might stop all

content moderation to attempt to avoid liability.351 Economic and social considerations may also

factor into a provider’s decision about how to respond to Section 230 amendments.352 For

instance, if Congress limited immunity for restricting certain types of content, providers might

continue to restrict it if they believe advertisers or users disfavor that content.

Another general consideration is what type of defendants would be subject to liability under any

given proposal to amend Section 230. As previously discussed, Section 230 is currently available

to any provider or user of an interactive computer service, a broad term referring to any service

that enables multiple users to access a computer server.353 A wholesale exception to Section 230

would remove that federal immunity for all interactive computer service providers and users.

Some proposals to amend Section 230 would instead only limit Section 230 immunity for certain

providers, such as larger providers or providers of certain types of services such as social

media.354 For a discussion of policy considerations in defining “online platforms,” see CRS

Report R47662, Defining and Regulating Online Platforms, coordinated by Clare Y. Cho.

Finally, as discussed in more detail in a later section, proposals to reform Section 230 may also

raise First Amendment considerations.355

Liability for Hosting Content

A number of proposals would have exposed service providers or users to greater liability for

hosting another’s content, with the apparent goal of incentivizing content removal or restriction.

Several bills would have created new exceptions to Section 230 by amending subsection (e) to

carve out certain categories of claims, similar to FOSTA.356 Other bills would have created

exceptions from only Section 230(c)(1) for certain types of claims,357 content,358 or defendants.359

The type of claim or content carved out from Section 230 protections varied. For instance,

multiple bills focused on child sexual exploitation, allowing claims premised on conduct that

violates new or existing laws related to distributing child sexual abuse material.360 Other bills

351 Supra “Stratton Oakmont, Inc. v. Prodigy Services Co.” In Stratton Oakmont, Inc. v. Prodigy Servs. Co., No.

31063/94, 1995 WL 323710, at *4 (N.Y. Sup. Ct. May 24, 1995), a state court held that a message board host could be

subject to liability as the publisher of allegedly defamatory statements in part because it removed other messages.

352 For a discussion of the content recommendation and moderation policies of social media sites, see CRS Report

R46662, Social Media: Misinformation and Content Moderation Issues for Congress, by Jason A. Gallo and Clare Y.

Cho; and CRS In Focus IF12462, Social Media Algorithms: Content Recommendation, Moderation, and Congressional

Considerations, by Kristen E. Busch.

353 47 U.S.C. § 230(f)(2); supra “Text and Legislative History.”

354 E.g., Justice Against Malicious Algorithms Act of 2021, H.R. 5596, 117th Cong. § 2 (2021); Limiting Section 230

Immunity to Good Samaritans Act, H.R. 277, 117th Cong. § 2 (2021). See generally, e.g., Eric Goldman & Jess Miers,

Regulating Internet Services by Size, 2 COMPETITION POL’Y INT’L ANTITRUST CHRON. 24 (2021) (discussing

considerations related to distinguishing internet services based on size).

355 Infra “Free Speech Considerations.”

356 E.g., Civil Rights Modernization Act of 2021, H.R. 3184, 117th Cong. § 2(a) (2021); SAFE TECH Act, S. 299,

117th Cong. § 2(2) (2021); PLAN Act, H.R. 4232, 116th Cong. § 2(b) (2019).

357 E.g., Protecting Americans from Dangerous Algorithms Act, H.R. 8636, 116th Cong. (2020).

358 E.g., Health Misinformation Act of 2021, S. 2448, 117th Cong. (2021).

359 E.g., Accountability for Online Firearms Marketplaces Act, S. 2725, 117th Cong. (2021).

360 E.g., Holding Sexual Predators and Online Enablers Accountable Act, S. 5012, 116th Cong. § 5 (2020); EARN IT

Act of 2020, S. 3398, 116th Cong. § 5 (2020). See also, e.g., STOP CSAM Act of 2023, S. 1199, 118th Cong. § 5(e)

(2023); END CSAM Act, S. 823, 118th Cong. § 5(g) (2023).

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would have created exceptions for certain lawsuits brought under state law, including breach of

contract claims361 or claims relating to property rentals.362 Still other bills would have exempted

claims under federal and state civil rights laws that prohibit discrimination on the basis of a

protected class.363 Some of these bills would have authorized liability only if a service provider

used certain types of algorithms to deliver the specified type of content.364

In addition to proposals that created exceptions for harmful or illegal content, some proposals

would have effectively conditioned immunity on a service provider’s ability to remove harmful or

illegal content. For example, the CASE-IT Act, as introduced in the 116th Congress, stated that a

service provider or user would lose Section 230(c)(1) immunity for a year if they engaged in

activities such as permitting harmful content to be distributed to minors, if the harmful content

was “made readily accessible to minors by the failure of such provider or user to implement a

system designed to effectively screen users who are minors from accessing such content.”365

Apart from these bills focusing on specific claims or content, some bills would have more broadly

limited Section 230(c)(1) immunity.366 For example, some bills would have created new

exceptions for the enforcement of all federal civil laws.367 Other proposals would have exposed

providers to liability for hosting unlawful content if the provider was aware of that content.368 For

example, the Platform Accountability and Consumer Transparency Act (PACT Act), as introduced

in the 117th Congress, would have amended Section 230 so that some providers would lose

immunity under subsection (c)(1) if they were notified about certain illegal content or activity

occurring on their service and did not “remove the illegal content or stop the illegal activity”

within certain time periods.369 The PACT Act would have required written notice that contained,

among other elements, a copy of a court order finding the content or activity illegal.370

361 Limiting Section 230 Immunity to Good Samaritans Act, S. 3983, 116th Cong. § 2 (2020).

362 PLAN Act, H.R. 1107, 117th Cong. § 2(a) (2021).

363 E.g., Civil Rights Modernization Act of 2021, H.R. 3184, 117th Cong. § 2(a) (2021); SAFE TECH Act, S. 299,

117th Cong. § 2(2) (2021).

364 E.g., Health Misinformation Act of 2021, S. 2448, 117th Cong. § 3(a) (2021) (providing that a service provider

“shall be treated as the publisher or speaker of health misinformation” if it uses certain algorithms to promote that

content); Protecting Americans from Dangerous Algorithms Act, H.R. 8636, 116th Cong. § 2 (2020) (providing that

“an interactive computer service shall be considered to be an information content provider” and will not receive Section

230(c)(1) immunity in civil actions brought under 42 U.S.C. §§ 1985, 1986, or 18 U.S.C. § 2333, if the claim involves

the use of certain types of algorithms to deliver the relevant content, with exemptions for certain services).

365 CASE-IT Act, H.R. 8719, 116th Cong. § 2 (2020).

366 See, e.g., Stopping Big Tech’s Censorship Act, S. 4062, 116th Cong. § 2 (2020) (providing that both service

providers and users may only claim immunity under Section 230(c)(1) if a service “takes reasonable steps to prevent or

address the unlawful use” of the service “or the unlawful publication of information on” the service).

367 E.g., PACT Act, S. 4066, 116th Cong. § 7 (2020) (providing that Section 230 does not apply to the enforcement of

federal civil statutes or regulations); Stopping Big Tech’s Censorship Act, S. 4062, 116th Cong. § 2 (2020) (creating a

new exception for civil enforcement actions brought by the federal government arising out of violations of federal law).

368 E.g., See Something, Say Something Online Act of 2020, S. 4758, 116th Cong. § 5 (2020) (providing that a provider

“that fails to report a known suspicious transmission may be held liable as a publisher for the . . . transmission”). Cf.

Stop Shielding Culpable Platforms Act, H.R. 2000, 117th Cong. (2021) (stating that Section 230(c)(1) does not prevent

a provider or user “from being treated as the distributor of information”). The bill’s sponsor explained in a press release

that this was intended to allow liability if an entity “knowingly shares” information. Press Release, Rep. Jim Banks,

Chairman, Republican Study Committee, Banks Statement on the Stop Shielding Culpable Platforms Act (Mar. 22,

2021), https://banks.house.gov/uploadedfiles/stop_shielding_culpable_platforms_act_-_one-pager.pdf.

369 PACT Act, S. 797, 117th Cong. § 6(a) (2021). The bill defines “illegal activity” as content provider activity “that

has been determined by a” court “to violate Federal criminal or civil law.” Id. § 6(b). It defines “illegal content” as

information that a court has determined violates “(A) Federal criminal or civil law; or (B) State defamation law.” Id.

370 Id. § 6(a).

Congressional Research Service

Section 230: An Overview

The notice-and-takedown liability regime of the PACT Act may be compared to the notice-andtakedown procedures of the Digital Millennium Copyright Act (DMCA), enacted in 1998.371 The

DMCA provides a safe harbor to covered providers who remove content after being notified that

it may violate federal copyright law.372 The law protects them from lawsuits premised on hosting

potentially infringing content. While the PACT Act would have required the specified notice to

contain a court order adjudicating the challenged content as illegal, the DMCA essentially leaves

the initial determination of whether content is illegal to private parties. Under the DMCA, the

person notifying a service provider of copyright infringement must provide a good-faith assertion

under penalty of perjury that the use of the allegedly infringing material is unlawful.373 The

notifier thus has the initial burden of determining whether the material violates copyright laws.374

The provider hosting the allegedly infringing content then must decide whether to accept the

notice and expeditiously take down the material, or instead to ignore the notice and risk liability.

The DMCA can therefore incentivize removals by granting immunity to providers that remove

allegedly infringing material, creating the potential that providers will take down lawful material

rather than risk litigation.375 The PACT Act, in contrast, would have incentivized removal after a

court already determined the material violated the law.376 If a proposal to convert Section 230 into

a notice-and-takedown liability scheme instead left it to providers to determine in the first

instance whether activity on their site violated the law, then such a hypothetical proposal could,

like the DMCA, incentivize the removal of at least some lawful content.

Other bills would have effectively conditioned Section 230 immunity on the provider’s content

recommendation and moderation practices. For instance, some bills would have caused providers

to lose Section 230 immunity if they used certain algorithms to distribute content to users or

display behavioral advertising, regardless of whether the algorithmically distributed content or

behavioral advertising formed the basis of the suit.377 One bill would have required certain

371 17 U.S.C. § 512(c). It could also be compared to the notice-based liability imposed on distributors of defamatory

content. See supra notes 64 to 66 and accompanying text; cf., e.g., Barrett v. Rosenthal, 146 P.3d 510, 520 (Cal. 2006)

(comparing the DMCA’s “limited liability” scheme to Section 230, and concluding “that Congress did not intend to

permit notice liability under the CDA”).

372 See generally CRS In Focus IF11478, Digital Millennium Copyright Act (DMCA) Safe Harbor Provisions for

Online Service Providers: A Legal Overview, by Kevin J. Hickey; U.S. COPYRIGHT OFFICE, SECTION 512 OF TITLE 17

373 17 U.S.C. § 512(c)(3).

374 See, e.g., Lenz v. Univ. Music Corp., 815 F.3d 1145, 1151 (9th Cir. 2016) (acknowledging the copyright holder’s

obligation to state that the use is unauthorized and holding that this provision requires the holder to consider whether

the potentially infringing material is authorized as “fair use” of a copyright).

375 17 U.S.C. § 512(g)(1); see also, e.g., Wendy Seltzer, Free Speech Unmoored in Copyright’s Safe Harbor: Chilling

Effects of the DMCA on the First Amendment, 24 HARV. J. LAW & TECH. 171, 175 (2010) (discussing the incentive

structure and arguing that the DMCA results in removal of constitutionally protected speech). The DMCA also

provides a process for the user who posted the allegedly infringing material to challenge the initial notice. 17 U.S.C.

§ 512(g)(2)–(3). If there is such a “counter notification,” the provider may be able to replace the initial post and retain

immunity. Id. § 512(g)(2), (4).

376 See PACT Act, S. 797, 117th Cong. § 6 (2021).

377 E.g., Break Up Big Tech Act of 2020, H.R. 8922, 116th Cong. § 2 (2020) (providing that Section 230 will not apply

if a provider sells targeted advertising and displays the advertising to users who have not opted in, among other

provisions); Don’t Push My Buttons Act, S. 4756, 116th Cong. § 2 (2020) (providing that a provider generally may not

claim Se

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