Recent Developments under Section 230

of the Communications Decency Act

Boston Bar Association

April 29, 2009

Lee T. Gesmer, Esq.

Gesmer Updegrove LLP
40 Broad Street
Boston, MA 02109
------------------------------
lee.gesmer@gesmer.com
http://www.gesmer.com
http://www.MassLawBlog.com

My thanks to Leon Schwartz, Northeastern

University School of Law ’10, for his assistance
in preparing these materials.
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I. The State of the Law Before CDA Section 230

Section 230 of Title 47 of the United States Code (47 U.S.C. Section 230)
provides website operators broad legal immunity for third-party content.

Before Section 230 was enacted in 1996 the courts were divided on website
liability for user generated content. In the 1995 Stratton Oakmont case, the plaintiffs
sued Prodigy (an interactive computer service similar to that operated by America
Online) for defamatory comments made by an unidentified party on one of Prodigy’s
bulletin boards. The court held Prodigy to the strict liability standard typically applied to
original publishers of defamatory statements (e.g. books, magazines and newspapers),
rejecting Prodigy’s claims that it should be held to the lower “knew or should have
known” liability standard usually reserved for distributors. The court reasoned that
Prodigy had acted more like an original publisher than a distributor, both because it had
advertised its practice of controlling content on its service and because it had actively
screened and edited messages posted on its bulletin boards.

The Stratton Oakmont case threatened to put online service providers in the
awkward position of taking a hands-off policy to avoid liability for third-party content
posted on their sites until notified of a possibly illegal posting, and then having to
assess the validity of a complaint and respond promptly and reasonably to avoid liability.

Stratton Oakmont was viewed as a threat to the growth of the Internet, and
enactment of Section 230 was in large part a legislative reaction to this case, and
concern that other courts would rule similarly if federal legislation wasn't used to provide
immunity.

See Stratton Oakmont Inc. v. Prodigy Services Co., 1995 N.Y. Misc. Lexis 229
(Nassau Co., N.Y., Sup. Ct. 1995)(Internet service provider (ISP) could be held
liable for defamation as a publisher if it retained control over the postings on its
site, even though it did not create or assist in the creation of the allegedly
defamatory statements; Prodigy had screened/edited content); see also Cubby,
Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991)(treating ISP as
conduit, not publisher, and therefore refusing to impose liability for third-party
content).

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II. The Key Provisions of Section 230

The two key provisions of Section 230 are presented below. The effect of the law
has been for the courts to treat web sites that published third-party content as “conduits”
of that information (such as a telephone/common carrier had traditionally been treated),
rather than a distributor (to which a “knew or should have known” standard would apply)
or a publisher (to which strict liability would apply).

The second provision, (c)(2), is commonly referred to as the “good Samaritan”

provision, since is allows a web site to take down offensive content, without that action
converting the web site from a conduit into a publisher or distributor. In effect, it allows
a web site to exercise the privileges of a publisher without risking the strict liability that
accompanies that status for traditional publishers (subject to constitutional defenses in the
case of public figures).

Section 230(c)(1) –

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. (key terms bolded)

Section 230(c)(2) –

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

III. The Meaning of "Interactive Computer Services" Under Section 230

The term “interactive computer services” has been interpreted very broadly by the
courts. The courts have repeatedly rejected attempts to limit the reach of Section 230 to

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“traditional” internet service providers (ISPs), instead adopting a very broad definition of
the term “interactive computer service.”

Representative Cases:

Stoner v. eBay, Inc., 56 U.S.P.Q.2d 1852 (Cal. Sup. S.F. Cty. 2000) (eBay is an
interactive computer service)

Barrett v. Clark, 2001 WL 881259 (Cal. Sup. Ct. 2001)(court rejected the
plaintiff’s argument that Section 230 should not apply to protect Web site hosts
that do not enable access to the Internet)

Barrett v. Fonorow, 799 N.E.2d 916, 922 (Ill. App. Ct. 2d Dist. 2003) (“We reject
the suggestion that Intelisoft is not a "provider or user of an interactive computer
service" merely because it does not provide Internet access”)

Retailers:
Schneider v. Amazon.com, Inc., 31 P.3d 37, 40 (Wash. Ct. App. 2001) (“Amazon
is an interactive computer service - Amazon website enables visitors to the site to
comment about authors and their work, thus providing an information service that
necessarily enables access by multiple users to a server”)

Social Networking:
Doe v. MySpace Inc., 528 F.3d 413, 418 (5th Cir. 2008) (MySpace immune under
Section 230 because "[c]ourts have construed the immunity provisions in Section
230 broadly in all cases arising from the publication of user-generated content")

Classifieds:
Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157, 1162 n.6 (9th Cir.
2008) (Today, the most common interactive computer services are websites.
[Appellants] do not dispute that Roommate's website is an interactive computer
service)

Chicago Lawyers' Comm. for Civ. Rights Under Law, Inc. v. Craigslist, Inc., 519
F.3d 666, 671 (7th Cir. 2008) (Craigslist immune from liability under the Fair
Housing Act in regards to discriminatory housing postings)

Message boards:

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Universal Communication Systems v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir.
2007) (“we have no trouble finding that Lycos's conduct in operating the Raging
Bull web site fits comfortably within the immunity intended by Congress”)

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IV. Application of the Term “User” in the Statute

Section 230 provides immunity for “users” of interactive computer services, as

well as the services themselves (“No provider or user”). This has resulted in immunity
far beyond just website operators.

An important and illustrative case on “user” immunity is Barrett v. Rosenthal, 40

Cal.4th 33 (2006). In this case the plaintiffs alleged that the defendant had reposted a
defamatory article about them to an internet newsgroup. Because the defendant was not
the author of the post, she argued that she was protected under Section 230 as a “user.”
The California Supreme Court held that Section 230's protection applied to the defendant,
whether she knew or should have known of the defamatory nature of the material posted.

In effect, Barrett v. Rosenthal provides immunity for anyone who redistributes

defamatory statements on the Internet without modification, intentionally or otherwise,
except in cases specifically exempted by the statute – intellectual property, federal
criminal law and the Electronic Communications Privacy Act (ECPA), or where they
modify the content to such an extent that they become content providers.

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V. Determining When a “Computer Service” Becomes a “Content Provider” By

Reason Of Selection Or Editorial Control

A website will lose immunity if it acts as a “content provider. Cases have held
that simply choosing or selecting the content will not affect immunity. However, this
consequence of the law has proven controversial, and many commentators endorse the
position expressed by the dissent in Batzel v. Smith, below.

If a website chooses to edit third party content or change the meaning of the
information, at some point the website will lose the protection of Section 230. However,
there is no “bright line” test where the threshold between permissible and impermissible
editorial control is crossed. For example, two cases in the Eleventh Circuit suggest that
even the relatively minor editing of content could deprive the provider or user of Section
230 immunity.

In Whitney Information Network, Inc. v. Xcentric Ventures, L.L.C., 2006 WL

2243041 (11th Cir. 2006), the United States Court of Appeals for the Eleventh Circuit
indicated that simply inserting a word, which may add emphasis to the online text
without altering the meaning, might be enough to remove the provider or user of an
interactive computer service from Section 230 immunity.

In Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir. 2006), the Eleventh
Circuit appeared to define the line between service provider and content provider by
examining whether the provider filters or censors the information, in addition to
analyzing the role of the provider or user in editing third-party content.

Outside of the Eleventh Circuit, websites have been shown much more latitude
before their position changes from a service to a provider, resulting in a loss of immunity.

Cases:
Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157, 1163 (9th Cir.
2008) (“Congress sought to [allow interactive computer services] to perform some
editing on user-generated content without thereby becoming liable for all
defamatory or otherwise unlawful messages that they didn't edit or delete”)

Blumenthal v. Drudge, 992 F.Supp. 44, 49 (D.D.C.1998)(section 230 immunity

when reactive service provider has an active, even aggressive role in making
available content prepared by others; note: this case is considered wrongly
decided by many commentators)

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Batzel v. Smith, 333 F.3d 1018, 1032 (9th Cir. 2003)(Section 230 immunity
where offending third-party content was contained in an email whose author
never intended it to be distributed on the defendant's service and which the
defendant consciously selected for republication; dissent: Section 230 should not
protect where material actively selected for publication)

MCW, Inc. v. badbusinessbureau.com, L.L.C., 2004 WL 833595 (N.D. Tex.

2004)(even if badbusinessbureau.com had not actually created or developed the
information, it was still “responsible” because it directed the disgruntled
consumer to take certain photos (e.g., of the consumer in front of plaintiff’s office
building holding a copy of a “Rip-off Report”) to include in his online posting)

Prickett v. InfoUSA, Inc., No. 4:05-CV-10, 2006 U.S. Dist. LEXIS 21867 (E.D.
Tex. 2006)
<http://www.internetlibrary.com/pdf/Prickett-InfoUSA-ED-Texas.pdf>
(fact that some of the content was formulated in response to the defendant’s
prompts does not alter the defendant’s status)

Zeran v. America Online, 129 F.3d 327, 331 (4th Cir. 1997)(simply exercising the
traditional editing functions, such as deciding whether to publish, withdraw,
postpone or alter content, is not enough to transform an individual from a provider
or user of a service to a content provider)

Ben Ezra, Weinstein & Co. v. America Online Inc., 206 F.3d 980, 986 (10th Cir.
2000)(even though AOL occasionally corrected errors in stock quotations that
appeared on its proprietary network, AOL did not contribute to the “development
or creation of the stock quotation information”)

VI. Interactive Computer Services Are Not Obligated to "Take Down" Illegal
Content

Under the Digital Millennium Copyright Act (“DMCA”) websites that publish
copyrighted material posted by third parties are subject to a rigorous “notice and take
down” regime. Section 230, in contrast, does not require that illegal content posted by
third parties be removed, even if the website is aware of the illegal nature of the material.

The so-called "good Samaritan" provision of Section 230 allows a website to

exercise the privileges of publishers and censor material without the risk of being held

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liable for the censorship or losing immunity under Section 230. Section 230 also protects
interactive computer service providers to establish a policy of monitoring for offensive
material and then disregard it, as allowing claims in such situations would treat the
provider as a publisher.

Knowledge of illegality:
Doe v. GTE Corp., 347 F.3d 665 (7th Cir. 2003)(immunity for web-hosting
service provider as to claim brought by plaintiffs/college athletes complaining of
unconsented nude videos compiled into tapes and sold on web)
Beyond Sys. v. Keynetics, Inc., 422 F.Supp.2d 253, 536 (D. Md. 2006) (stressing
that “CDA immunity applies even where an ISP knew of its customers’
potentially illegal activity”)

Chicago Lawyers' Committee for Civil Rights Under Law v. Craigslist, Inc., 2008
WL 681168 (7th Cir. 2008)( online bulletin board did not violate the Fair Housing
Act by providing “an electronic meeting place” that hosted illegally
discriminatory housing advertisements)

Good Samaritan screening:

Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997) (“Section 230
forbids the imposition of publisher liability on a service provider for the exercise
of its editorial and self-regulatory functions”)

Contractual/promised editing activity:

Barnes v. Yahoo!, Inc., 2005 U.S. Dist. LEXIS 28061, 10-11 (D. Or. 2005) (A
claim for failing to fulfill a promise to remove unauthorized profiles is barred by
immunity provided by Section 230)

Schneider v. Amazon.com, Inc., 31 P.3d 37, 42 (Wash. Ct. App. 2001) (A claim
for failure to live up to a promise to remove offensive material necessarily
involves editorial discretion and therefore would treat the defendant as a
publisher, which is barred by Section 230)

Knowledge that statements are libelous/offensive:

Barrett v. Rosenthal, 40 Cal. 4th 33 (Cal. 2006) (because Section 230 prohibits
liability for "distributors" of information, even proven knowledge of libelous
content does not require removal)

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Doe v. Friendfinder Network, Inc., 540 F.Supp.2d 288, 299 (D.N.H. 2008) (“That
the defendants allegedly learned that the profile was false and unauthorized before
reposting it does not bring their conduct outside the protections of the Act”)

VII. Statutory Carve-Outs to Immunity

There are three statutory carve-outs: "federal criminal law", "intellectual property
law" and the ECPA.

The federal criminal law and ECPA exceptions have not been controversial (there
have been no ECPA cases at all), but the “intellectual property law” exception has led to
some interesting decisions. Section 230(e)(2) of the CDA provides that

“[n]othing in this section shall be construed to limit or expand any law pertaining
to intellectual property."

However, the CDA does not define the term “intellectual property” and the courts
are divided in their application of this term, with the Ninth Circuit being the outlier.

The Ninth Circuit has held that “intellectual property” within Section 230(e)(2)
should be read to mean “federal intellectual property” and that state intellectual property
claims that fall under the statute are entitled to immunity. Perfect 10, Inc. v. CCBill
LLC, 488 F.3d 1102, 1119 (9th Cir.2007), cert. denied, ___ U.S. ___, 128 S.Ct. 709
(2007)(term “intellectual property” in the CDA means federal intellectual property; state
law publicity right is IP claim preempted by Section 230).

In other words, in the Ninth Circuit a website that publishes illegal third-party
content that qualifies as “intellectual property” is immune from liability if the illegality is
based upon a claim of state intellectual property law. If the claim is based on federal
intellectual property law, the website is not immune.

Under the Ninth Circuit interpretation of Section 230 state IP law claims would
include the right of publicity, state trademark infringement claims and trade secret claims.
For example, a plaintiff harmed by a third-party publication of its trade secrets on a
website would not be able to obtain a TRO or injunction against the website hosting that
content.

The Ninth Circuit stands alone in this reading of Section 230. Federal district
courts in New Hampshire and the Southern District of New York have read the statute

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literally, and held that the carve-out to immunity applies to both federal and state
intellectual property laws. Doe v. Friendfinder Network, Inc., 540 F.Supp.2d 288, 299
(D.N.H. 2008) (rejecting the Ninth Circuit's decision in Perfect 10 and holding that
“[c]onsistent with its text, Section 230(e)(2) applies simply to ‘any law pertaining to
intellectual property,’ not just federal law'”).

See also Atl. Recording Corp. v. Project Playlist, Inc., 2009 U.S. Dist. LEXIS
24912 (S.D.N.Y. Mar. 25, 2009)(while Section 230(e)(2) uses “any law,” surrounding
statutory language uses “federal” and “state” qualifiers, showing that Congress “knew
how to make [limiting language] clear,” but chose not to); see also Universal Commun.
Sys. v. Lycos, Inc., 478 F.3d 413, 423 (1st Cir. 2007)( dicta that state claims based on
intellectual property are not subject to Section 230 immunity).

The Ninth Circuit's reading of the statute has been criticized, and it is difficult to
justify; however, litigants in the states covered by the Ninth Circuit must live with this
interpretation of the law until the Ninth Circuit overrules itself, Congress passes new
legislation, or the Supreme Court clarifies the statute.

VIII. Conduct That "Crosses the Line" and Makes the Interactive Computer
Service a Content Provider

It has been difficult for plaintiffs to succeed on the argument that an interactive
computer service has crossed over the line and acted as a content provider (the Eleventh
Circuit being an exception, as discussed above). However, one case in which the
plaintiffs succeeded has received a great deal of attention. This case is Fair Housing
Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir.2008)(en banc). And,
Roomates.com has been compared against Chicago Lawyer’s Committee for Civil Rights
Under Law v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008), which involved similar, but
different facts.

The defendant in Roomates.com operates a website designed to match people

looking for housing with those who have spare rooms. In order to search listings or post
housing on the website, users must create profiles which require them to provide both
basic information, such as their name, location, and email address, as well as
information about their gender, sexual orientation, and the presence of children. Users
are further required to provide their preferences in a roommate’s gender, sexual
orientation, and the presence of children based on drop-down choices. The website also
provides an optional “Additional Comments” section inviting users to describe

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themselves and their desired roommate in a “free text” manner. Roommates.com

compiles this information into a searchable profile page and sends out emails alerting
subscribers to new matches based on the criteria provided during registration. The Fair
Housing Council sued Roommate in the United States District Court, Central District of
California, under the Fair Housing Act (FHA).

The case reached the Ninth Circuit sitting en banc. The court found that because
“Roommate created the questions and choice of answers, ” Roommate is
“undoubtedly the ‘information content provider’ and can claim no immunity” under
the CDA. However, with respect to the “Additional Comments” section the Ninth
Circuit found that because Roommates.com “publishes these comments as written” and
“does not provide any specific guidance as to what the essay should contain, nor does it
urge subscribers to input discriminatory preferences,” “[t]his is precisely the kind of
situation for which section 230 was designed to provide immunity.”
The take-away from the majority opinion in Roommates.com is that in the Ninth
Circuit (at least), websites should be careful of “structured searches” of user supplied
content. At least for now, structured searches are the “thin ice” of Section 230. More
generally, websites should be careful not to “help to develop unlawful content … if it
contributes materially to the alleged illegality of the conduct.” As the court stated, “if
you don’t encourage illegal content, or design your website to require users to
input illegal content, you will be immune.”

The dissent by Judge McKeown in this case is worth noting. The dissent found the
majority’s result “driven by the distaste for housing discrimination” rather than a clear
application of Section 230. The dissent observed that the “entire opinion links
Roommate’s ostensibly reprehensible conduct (and that of its users) with an
unprecedented interpretation of the CDA’s immunity provision.” This distaste, the
dissent argued, resulted in an immunity analysis that “is built on substantive liability.”
Instead, the dissent argued, the “issue of user liability for allegedly discriminatory
preferences is a separate question” from Roommate.com's liability as an ‘information
content provider’ under Section 230, stating “it would be nonsense to claim to be immune
only from the innocuous.” The dissent found that the majority opinion conflated liability
with immunity, an “upside-down approach” which requires a finding of “liability in order
to decide whether immunity is available.”

It's also worth noting that in this case the Ninth Circuit expressly narrowed its
holding in Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003). In that case
the court found a dating service automatically immune under Section 230 for a fraudulent

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profile created by an unknown subscriber; the Ninth Circuit held that a website operator
could never be liable for user-created profile content because “no [dating] profile has any
content until a user actively creates it.” In Roomates.com the court stated that “[w]e
disavow any suggestion that Carafano holds an information content provider
automatically immune so long as the content originated with another” because, under the
clarified definition of development, “a website operator may still contribute to the
content’s illegality and thus be liable as a developer.”

As stated above, the Seventh Circuit's decision in Chicago Lawyer’s Committee

for Civil Rights Under Law v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008) bears
similarities, but also critical differences, with Roomates.com. In Craigslist the
Craigslist website was also sued for alleged violation of the FHA; however, unlike
Roomates.com, any discrimination is communicated in a blank text box entitled
“Posting Description.”

The Seventh Circuit, upholding a motion to dismiss by Craigslist, rejected the

Lawyers’ Committee’s arguments that the CDA does not apply to the FHA because
Congress did not contemplate discriminatory housing advertisements when it enacted
the CDA and that Section 230 is restricted to the blocking and screening of sexual
explicit information (“publisher or speaker of information”). The court noted that the
proper remedy was to pursue those who post the discriminatory ads, not Craigslist,
which lacked the staff to examine every listing.

Although both Craigslist and Roommates.com allowed users to post notices of

available housing and search those notices, the fact that the Ninth Circuit denied
Section 230 protection to Roommates.com, while the Seventh Circuit granted it to
Craigslist, is not inconsistent. While Craigslist provided blank text boxes for users to
describe their available housing, Roommates.com created drop-down menus of pre-
determined answers to allow users to identify information prohibited by the FHA.
Roommates.com allowed users to search its database of available housing and create
targeted emails based on these same criteria. Craigslist’s search function, in contrast,
was based on user-defined search terms entered into a generic data field. Craigslist
service lacked the features that the Ninth Circuit found problematic in
Roommates.com. Craigslist operated like Roommate’s “Additional Comments”
section, which the Ninth Circuit found protected by the CDA.

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VIII. If You've Got It, Flaunt It (or, So Sue Me) - RipOffReport.com, Poster
Child for Section 230

Do you really want to sue Ripoff Report?

You should read this information before filing a lawsuit against Ripoff Report or
the Founder ED Magedson. . . . .

. . . we never remove reports even when they are claimed to contain defamatory
statements, and even if the original author requests it.

. . . Ripoff Report is not liable for statements posted by a third party, and it has
never lost a case involving such statements, so it will not remove complaints even
if you sue.

Filing a lawsuit will, however, guarantee the removal of one thing -- a LOT of
money from your wallet and into an attorney's pocket.

<http://ripoffreport.com/wantToSueRipoffReport.asp>

See, e.g., Global Royalties, Ltd. v. Xcentric Ventures, L.L.C., 2007 WL 2949002
(D.Ariz. Oct. 10, 2007) (holding Section 230 barred claims against Ripoff Report based
on statements posted by a third party user of the site); Whitney Info. Network, Inc. v.
Xcentric Ventures, LLC, 2008 U.S. Dist. LEXIS 11632 (M.D.Fla. Feb. 15, 2008) (Ripoff
Report granted summary judgment based on Section 230 protection).

For a running list of cases against RipOffReport.com (17 as of this writing), see:

<http://www.seomoz.org/blog/the-anatomy-of-a-ripoff-report-lawsuit>

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Appendix
TITLE 47 - TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
CHAPTER 5 - WIRE OR RADIO COMMUNICATION
SUBCHAPTER II - COMMON CARRIERS
Part I - Common Carrier Regulation

Section 230. Protection for private blocking and screening of offensive material

(a) Findings

The Congress finds the following:

(1) The rapidly developing array of Internet and other interactive computer
services available to individual Americans represent an extraordinary advance in
the availability of educational and informational resources to our citizens.
(2) These services offer users a great degree of control over the information that
they receive, as well as the potential for even greater control in the future as
technology develops.
(3) The Internet and other interactive computer services offer a forum for a true
diversity of political discourse, unique opportunities for cultural development, and
myriad avenues for intellectual activity.
(4) The Internet and other interactive computer services have flourished, to the
benefit of all
Americans, with a minimum of government regulation.
(5) Increasingly Americans are relying on interactive media for a variety of
political, educational, cultural, and entertainment services.

(b) Policy

It is the policy of the United States—

(1) to promote the continued development of the Internet and other interactive
computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for
the Internet and other interactive computer services, unfettered by Federal or State
regulation;

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(3) to encourage the development of technologies which maximize user control

over what information is received by individuals, families, and schools who use
the Internet and other interactive computer services;
(4) to remove disincentives for the development and utilization of blocking and
filtering technologies that empower parents to restrict their children’s access to
objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish
trafficking in obscenity, stalking, and harassment by means of computer.

(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 paragraph (1).

(d) Obligations of interactive computer service

A provider of interactive computer service shall, at the time of entering an

agreement with a customer for the provision of interactive computer service and
in a manner deemed appropriate by the provider, notify such customer that
parental control protections (such as computer hardware, software, or filtering

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services) are commercially available that may assist the customer in limiting
access to material that is harmful to minors. Such notice shall identify, or provide
the customer with access to information identifying, current providers of such
protections.

(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, 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.

(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.

(f) Definitions

As used in this section:

(1) Internet

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The term “Internet” means the international computer network of both Federal
and non-Federal interoperable packet switched data networks.

(2) Interactive computer service

The term “interactive computer service” means any information service, system,
or access software provider that provides or enables computer access by multiple
users to a computer server, including specifically a service or system that provides
access to the Internet and such systems operated or services offered by libraries or
educational institutions.

(3) Information content provider

The term “information content provider” means 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.

(4) Access software provider

The term “access software provider” means a provider of software (including

client or server software), or enabling tools that do any one or more of the
following:

(A) filter, screen, allow, or disallow content;

(B) pick, choose, analyze, or digest content; or
(C) transmit, receive, display, forward, cache, search, subset,
organize, reorganize, or translate content.

Boston Bar Association, April 29, 2009

Recent Developments under Section 230
of the Communications Decency Act