# Section 230: An Overview > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR46751 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** January 4, 2024 - **Citation:** R46751 ## Text Section 230: An Overview Updated January 4, 2024 Congressional Research Service https://crsreports.congress.gov 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 I 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 1 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): (c) PROTECTION FOR “GOOD SAMARITAN” BLOCKING AND SCREENING OF OFFENSIVE 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 2 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”). 33 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 3 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 (C) any charge in a criminal prosecution brought under State law if the conduct 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 4 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). 46 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 5 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). 60 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. Congressional Research Service 6 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 . . . .”). Congressional Research Service 7 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). Congressional Research Service 8 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.” Congressional Research Service 9 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. Congressional Research Service 10 Section 230: An Overview 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. Congressional Research Service 11 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.”). Congressional Research Service 12 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...) Congressional Research Service 13 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. Congressional Research Service 14 Section 230: An Overview 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. Congressional Research Service 15 Section 230: An Overview 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. Congressional Research Service 16 Section 230: An Overview 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. Congressional Research Service 17 Section 230: An Overview 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). Congressional Research Service 18 Section 230: An Overview 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...) Congressional Research Service 19 Section 230: An Overview 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. Congressional Research Service 20 Section 230: An Overview 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). Congressional Research Service 21 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 terms of service, but is in fact motivated by some other reason, the provider may be acting in bad 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). Congressional Research Service 22 Section 230: An Overview 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). Congressional Research Service 23 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”). Congressional Research Service 24 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. Congressional Research Service 25 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). Congressional Research Service 26 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...) Congressional Research Service 27 Section 230: An Overview for laws “pertaining to intellectual property” allows, for example, suits for copyright and trademark infringem [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR46751. Public record. Not legal advice.