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Copyright Information
"MINOR" ONLINE SEXUAL HARASSMENT AND THE CDA
§ 230 DEFENSE: NEW DIRECTIONS FOR INTERNET
SERVICE PROVIDER LIABILITY

KrisAnn Norby-Jahner*

1. INTRODUCTION 208

II. BACKGROUND 211


A. SEXUAL HARASSMENTAT WORK AND SCHOOL: EMPLOYER
AND SCHOOL LIABILITY FOR "HOSTILE ENVIRONMENTS" 211
B. CREATING A HOSTILE ENVIRONMENT IN A NEW FORUM:
ONLINE SEXUAL HARASSMENT 215
1. HOSTILE ENVIRONMENTS IN THE ONLINE FORUM 216
2. FORMS OF SEXUAL HARASSMENT IN THE ONLINE FORUM 217
3. DANGERS OF SEXUAL HARASSMENT IN THE ONLINE
FORUM VS. IN-PERSON 219
4. INJURY TO THE TEEN VICTIM OF ONLINE SEXUAL
HARASSMENT 223
5. AN EFFECTUAL LACK OF LEGAL REDRESS FOR ONLINE
SEXUAL HARASSMENT 226
a. HARASSER LIABILITY 228
b. PARENT LiABILITY 228
c.
SCHOOL LIABILITY 229
d. INTERNET SERVICE PROVIDER ("ISP") LIABILITY 230
C. COMMUNICATIONS DECENCYACT AND THE § 230 DEFENSE 232
1. PRE-COMMUNICATIONS DECENCY ACT 234
2. COMMUNICATiONS DECENCYACT IN EFFECT: CASE LAW 235
3. NEW DIRECTIONS IN CASE LAW 239

Im. ANALYSIS 242


A. LEGAL REDRESS FOR ONLINE SEXUAL HARASSMENT 243
B. CDA § 230 REINTERPRETED:ISP BROAD IMMUNITY
UNREASONABLE 247
1. Two POSSIBLE INTERPRETATIONS 247
2. LEGISLATIVE HISTORY CLARIFIES AMBIGUITY IN § 230 249
3. FREE SPEECH NOT LIMITED BY ISP LIABILITY 253
4. NEW DIRECTIONS IN CASE LAW FOR ISP LIABILITY 255
C. CONGRESSIONAL ACTION NEEDED 257

Candidate for Juris Doctor, Hamline University School of Law, May 2010. The
author would like to thank the Hamline Law Review editors and staff, especially Michael
Goodwin and Rebecca Robison for their valuable guidance. The author also thanks Doug
Jahner for his endless encouragement and patience throughout the writing process.
HAMLINE LAW REVIEW [Vol. 32:207

1. STATUTORY REMEDY FOR ONLINE SEXUAL HARASSMENT 257


2. LEGISLATIVE REFORM IS NEEDED TO CURE THE AMBIGUITY
IN § 230 259
3. PRACTICAL IMPLICATIONS OF § 230 REFORM AND ISP
LIABILITY 260

IV. CONCLUSION 262

I. INTRODUCTION

Bullying takes on new forms as teenagers harass one another online


with sexually explicit comments and images at alarming rates.' A 16-year-
old girl is harassed and humiliated when her contact information is posted on
sex-orientated websites and blogs. 2 A 15-year-old girl is devastated when a
website is created just to show people "how gay" she is, and sexually explicit
messages are sent to others from those purporting to be her.3 A 14-year-old
girl feels helpless when she begins receiving instant messages with sexually
offensive words, sent over and over again.4 A seventh grade class is
victimized by a "Hot or Not" mass e-mail with pictures of female classmates,
asking students to vote.5 On separate occasions, a 13-year-old girl and 13-
year-old boy commit suicide after being harassed by their classmates on
social networking sites. 6
The commonalities that these teenagers share is that each has been
sexually harassed online and each has had limited legal remedy for the harm
caused.7 Sexual harassment has moved beyond the workplace and schools

See infra notes 94-98 and accompanying text (noting the high frequency of
occurrence of sexual harassment among peers); see also infra notes 111-115 and
accompanying text (discussing the permanency and continuous nature of online sexual
harassment that causes victimization to become global and inescapable).
2 See Paris S. Strom & Robert D. Strom, When Teens Turn Cyberbullies,
EDUCATIONAL FORUM, Dec. 2005, at 35, 37 (detailing how 16-year-old Denise was sexually
harassed online by her ex-boyfriend).
3 See Stacy M. Chaffin, The New Playground Bullies of Cyberspace: Online
Peer Sexual Harassment, 51 HOWARD L.J. 773, 774 (2008) (detailing the extreme online
harassment Kylie Kenney faced from her classmates).
4 See Juli S. Charkes, Cracking Down on the Cyberbully, N.Y. TIMES, Mar. 30,
2008, at WEI, available at http:llwww.nytimes.coml2008/03/30/nyregionlnyregion
special2/30bullyingwe.html?pagewanted=1 &_r=1&sq=cracking%20down%20on%20the%20
cyberbully&st=cse&scp=1.
5 Cindy Long, Silencing Cyberbullies, NEATODAY, May 2008, at 28.
6 See John Halligan, In Memory of Ryan Patrick Halligan,
http://www.ryanpatrickhalligan.org (last visited Sept. 3, 2008) (detailing Ryan Halligan's
online harassment and subsequent suicide); Scott Michels, MySpace Suicide Hoax Mom Says
Messages Not Hers, ABC NEWS, Dec. 7, 2007, http://abcnews.go.comlTheLaw/Story?id=
3970339&page=l (detailing Megan Meier's online harassment and subsequent suicide).
7 See infra notes 58-93 and accompanying text (detailing the online
environments and types of sexual harassment that teenagers face); see also infra notes 152-
2009] THE CDA § 230 DEFENSE

and into a new online environment.8 Although the activity is the same
(sexual harassment among peers) and the hostile environment that is created
is the same (analogous to hostile workplaces and schools), legal redress is
lacking. 9 Title VII of the Civil Rights Act of 1964 protects employees from
facing sexual harassment in a hostile work environment,' 1 and Title IX
protects students from facing sexual harassment in a hostile school
environment." However, nothing in the Civil Rights Act protects teenagers
from facing sexual harassment online via a hostile online environment that
diminishes their self-worth and threatens their ability to succeed in school, in
social groups, and in the workforce. 2 Therefore, online sexual harassment
victims are left to pursue legal redress under common-law theories, such as
negligence, fraud, and defamation-none of which adequately 3
address the
extent of the harm suffered as a result of sexual harassment.

200 and accompanying text (detailing the lack of legal redress for teenage online sexual
harassment victims).
8 See infra notes 53-67 and accompanying text (discussing the creation of hostile
environments in the online forum through the posting and distribution of sexually harassing
material).
9 See infra notes 68-93 and accompanying text (detailing the forms of sexual
harassment in online forums); see also infra notes 58-67 and accompanying text (discussing
the hostile environments that are created in online forums); infra notes 152-200 and
accompanying text (discussing the lack of legal redress for online sexual harassment).
o See Henson v. Dundee, 682 F.2d 897, 902 (11 th Cir. 1982) (holding that Title
VII is violated if a plaintiff proves that she was discriminated against and sexually harassed
based on a "hostile or offensive [workplace] atmosphere"); see also Vinson v. Merit One
Savings Bank, 477 U.S. 57, 64 (1986) (affirming that Title VII protects a victim against
unwanted sexual advances that create an offensive or hostile working environment, according
to the EEOC guidelines). Vinson established the standard for concluding that Congress
intended Title VII to hold employers liable for hostile environments in some situations.
Vinson, 577 U.S. at 72-73.
11 See Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999) (holding that
in-school hostile environment sexual harassment is legally redressable under Title IX).
12 It is important to note that, although monetary damages for sexual harassment
differ under Title VII and Title IX, similar standards are applied in defining "sexual
harassment." See, e.g., Alexander v. Yale Univ., 459 F. Supp. 1, 4 (D. Conn. 1977), affd 631
F.2d 178 (2d Cir. 1980) (determining that quid pro quo sexual harassment is legally
redressable under Title VII and Title IX); see also U.S. Dept. of Justice, Civil Rights Division,
TITLE IX LEGAL MANUAL (2001), availableat http://www.usdoj.gov/crt/cor/coord/ixlegal.htm
#D.%20Sexual%20Harassment (noting that "as the body of Title IX sex harassment law has
evolved, the definitions of what conduct constitutes sexual harassment have remained largely
the same under Title IX and Title VII") [hereinafter TITLE IX LEGAL MANUAL]; infra notes 44-
52 and accompanying text (discussing the similar ways that courts treat workplace and school
hostile environments and employer and school liability). If the legislature passed a statute that
protected online users from discrimination, based on "race, color, religion, sex, or national
origin," then online sexual harassment would become legally redressable under the Civil
Rights Act. See infra notes 407-415 and accompanying text (proposing the creation of a
statute similar to Title VII or Title IX that protects online sexual harassment victims).
13 See, e.g., Doe v. MySpace, 474 F. Supp. 2d 843, 848 (W.D. Tex. 2007), aff'd
528 F.3d 413, 416-17 (5th Cir. 2008) (filing unsuccessful fraud and negligence claims, on the
basis that (1) the Internet Service Provider ("ISP") purported its site to be safe for teens and
(2) the ISP breached a legal duty to protect teenage users by allowing third-parties to have
HAMLINE LAW REVIEW [Vol. 32:207

Even when victims pursue a claim under a common-law theory of


liability, their chances of realizing legal redress are diminished. 14 Schools
cannot be held liable when the online activity occurs off-campus.15 Harassers
and parents cannot be held liable when the third-party harassers cannot be
identified. 16 Internet Service Providers ("ISPs") cannot be held liable because
of § 230 of the Communications Decency Act ("the CDA"), which has been
interpreted to give ISPs "blanket immunity" from claims. 17 The result?
Teenagers sexually harass each other online at continually alarming rates,
and the victims have essentially no legal redress for the harms they suffer .18
This comment argues that online sexual harassment perpetrated by
teenagers requires legal redress and that ISPs should be held liable for the
harm when they create, contribute to, or knowingly fail to remove material
that creates a hostile environment online. Part II of this comment provides

sexually explicit communication and contact with minors); Doe v. America Online, Inc., 783
So. 2d 1010, 1011-12, 1018 (Fla. 2001) (filing unsuccessful negligence claims against AOL
on the basis that (1) the ISP allowed a third-party to distribute sexual photographs of a minor
on its website and (2) the ISP should have acted because it knew or should have known about
the images); Lunney v. Prodigy Servs., 723 N.E.2d 539, 540 (N.Y. 1999) (filing unsuccessful
defamation and negligence claims against Prodigy for allowing a third-party to open accounts
in a minor's name and post sexually explicit comments and send sexually explicit e-mails
from that account); see also Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir.
2003) (filing unsuccessful defamation, negligence, invasion of privacy, and misappropriation
of the right of publicity claims against Metrosplash.com for allowing a third-party to create a
sexually offensive dating profile on an adult victim's behalf); Doe v. Friendfinder Network,
Inc., 540 F. Supp. 2d 288, 293 (D.N.H. 2008) (filing unsuccessful defamation, invasion of
privacy, and intentional infliction of emotional distress claims against Friendfinder for
allowing a third-party to create an account in her name and advertise her as a sexually
promiscuous "swinger"). All of the previous claims were barred by § 230 of the
Communications Decency Act, 47 U.S.C. § 230.
Note that most case law regarding online sexual harassing behavior has historically
involved sexual predators or adults. This is because teenage victims of online sexual
harassment rarely file lawsuits. See, e.g., supra notes 2-6 and infra notes 75-76, 81, and 84,
and accompanying text (detailing instances where teenagers were sexually harassed online,
but did not file lawsuits). Compare Prickett v. Infousa, Inc., 561 F. Supp. 2d 646 (E.D. Tex.
2006) (detailing a case where an adult couple filed an unsuccessful lawsuit (based on
defamation, negligence, intentional infliction of emotional distress, invasion of privacy, etc.)
against an ISP that allowed a third-party to post their names and contact information on an
adult entertainment website), with Strom & Strom, supra note 2, at 37 (detailing a case where
a teenager did not file a lawsuit against an ISP that allowed a third-party to post her name and
contact information on a sex-oriented website).
14 See infra notes 152-200 and accompanying text (discussing the overall lack of
legal redress for online sexual harassment victims).
15 See infra notes 171-185 and accompanying text (discussing the challenges of
school liability for online sexual harassment).
16 See infra notes 160-170 and accompanying text (discussing the challenges of
harasser and parent liability for online sexual harassment).
17 See infra notes 186-200 and accompanying text (discussing the CDA § 230
defense used by ISPs to shield themselves from liability).
18 See infra notes 94-98 and accompanying text (discussing the high frequency of
peer-sexual-harassment incidents); see also infra notes 152-200 and accompanying text
(discussing the lack of legal redress for online sexual harassment).
2009] THE CDA § 230 DEFENSE

background regarding the development of sexual harassment law in


workplace and school environments. 19 Part II also provides background on
the movement of sexual harassment into new online environments,2 ° with an
overview of hostile environments that are created online, 21 the forms of
online sexual harassment,22 the increased dangers of online sexual
harassment,2 3 the legally redressable injuries of online sexual harassment, 24
and the lack of legal redress available. 25 Finally, Part I describes the CDA
§ 230 defense that has been interpreted by courts as providing ISPs with
blanket immunity from online legal claims.26 Part I of this comment argues
that online sexual harassment is analogous to workplace and school sexual
harassment, and victims, therefore, should be afforded legal redress for their
harm.27 Part 1I asserts that the legislature needs to enact a statute, similar to
Title VII and Title IX, that provides legal redress to victims of online sexual
harassment.28 Furthermore, this comment asserts in Part III that courts need
to reinterpret § 230 of the CDA as not giving ISPs blanket immunity from
legal claims. 29 Two recent federal appellate court cases that provide such
reinterpretation are a step in the right direction .30 However, further legislative
reform is needed in order to remedy the ambiguous language in
§ 230.31 This comment recommends specific statutory revisions that would
impose liability when an ISP contributes to or develops the harassing
material and hostile environment, or if the ISP knew or should 32 have known
that the harassing material was posted and failed to remove it.

II. BACKGROUND

A. Sexual Harassmentat Work and School: Employer and School Liability


for "Hostile Environments"

Sexual harassment has been an important issue in the workplace and


school since the early 1970s when activists, such as Catharine MacKinnon,
Lin Farley, and Andrea Dworkin, 3 began lobbying for legislation and

19 See infra notes 33-52 and accompanying text.


20 See infra notes 53-57 and accompanying text.
21 See infra notes 58-67 and accompanying text.
22 See
See infra
infra notes
notes 68-93
94-130and
andaccompanying
accompanyingtext.
23 text.
24 See infra notes 131-151 and accompanying text.
25 See infra notes 152-200 and accompanying text.
26 See infra notes 201-272 and accompanying text.
27 See infra notes 284-319 and accompanying text.
28 See infra notes 407-415 and accompanying text.
29 See infra notes 320-385 and accompanying text.
30 See infra notes 386-406 and accompanying text.
31 See infra notes 416-419 and accompanying text.
32 See infra notes 416-419 and accompanying text.
33 See LIN FARLEY, SEXUAL SHAKEDOWN: THE SEXUAL HARASSMENT OF WOMEN
ON THE JOB 90 (1978) (arguing that sexual harassment functions to keep women out of
HAMLINE LAW REVIEW [Vol. 32:207

encouraging attorneys to bring sexual harassment claims under Title VII of


the Civil Rights Act of 1964. 34 The efforts made by MacKinnon, a
Minnesota-based attorney, finally led courts and legislatures across the
country to accept that sexual harassment was sex discrimination within the
meaning of Title VII. 35 Since 1977, courts have consistently held that victims
of sexual harassment are entitled to the protection of Title VII, which
"prohibits discrimination on the basis of race or sex 'in terms, conditions,
and privileges of employment.,, 36 In addition, the Equal Employment
Opportunity Commission ("EEOC") issued guidelines consistent with
MacKinnon's position that outline sexual harassment as illegal workplace
conduct. 37 Generally, sexual harassment has been defined as any

nontraditional female job roles and in traditional job roles); CATHARINE MACKINNON, SEXUAL
HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION 174-75 (1979) (arguing
that sexual harassment keeps women down in the labor market by requiring them "to
exchange sexual services for material survival"); Andrea Dworkin, What Feminist
JurisprudenceMeans to Me, in 43 DIRECTIONS INSEXUAL HARASSMENT LAW 44-46 (Catharine
MacKinnon & Reva Siegel eds., 2004) (arguing that sexual harassment law should function to
undermine male dominance and destroy hierarchies that are upheld on the premise that women
are sexually available). The term "sexual harassment" developed in a 1974 consciousness-
raising session that Professor Lin Farley held in order to examine a female employment
pattern that indicated that women were being treated unequally in the workplace. FARLEY,
supra, at 14-15. In her ground-breaking book, SEXUAL SHAKEDOWN: THE SEXUAL
HARASSMENT OF WOMEN ON THE JOB, Farley defined sexual harassment as the "unsolicited
nonreciprocal male behavior that asserts a woman's sex role over her function as a worker."
Id.
34 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) (2006). Title VII
prohibits discrimination in the workplace based on "race, color, religion, sex, or national
origin." Id.
35 Reva Siegel, A Short History of Sexual Harassment, in 1 DIRECTIONS IN
SEXUAL HARASSMENT LAW 11 (Catharine MacKinnon & Reva Siegel eds., 2004). MacKinnon
convinced courts and legislatures that sexual harassment is banned under Title VII because
sexual harassment is "discrimination 'based on sex' within the social meaning of sex."
MACKINNON, supra note 33, at 178.
36 SEXUAL SUBORDINATION AND STATE INTERVENTION 101 (R. Amy Elman ed.,
1996); see, e.g., Vinson v. Merit One Savings Bank, 477 U.S. 57, 64 (1986) (affirming that
Title VII protects against a victim receiving unwanted sexual advances that create an offensive
or hostile working environment, according to the EEOC guidelines); Henson v. Dundee, 682
F.2d 897, 901 (1 1th Cir. 1982) (holding that Title VII is violated if a plaintiff proves that she
was discriminated against and sexually harassed based on a "hostile or offensive [workplace]
environment").
37 SEXUAL HARASSMENT IN THE WORKPLACE: PERSPECTIVES, FRONTIERS, AND
RESPONSE STRATEGIES xiii (Margaret Stockdale ed., 1996); see also EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, SEXUAL HARASSMENT (2008), available at
http://www.eeoc.gov/types/sexualharassment.html. The EEOC defines "sexual harassment"
as "sex discrimination that violates Title VII" and includes but is not limited to the following
circumstances:
[1] The victim as well as the harasser may be a woman or a man. The
victim does not have to be of the opposite sex. [2] The harasser can be the
victim's supervisor, an agent of the employer, a supervisor in another area,
a co-worker, or a non-employee. [3] The victim does not have to be the
person harassed but could be anyone affected by the offensive conduct. [4]
20091 THE CDA § 230 DEFENSE

"unwelcome attention of a sexual nature, occurring through verbal and/or


38
physical interaction.
The movement against sexual harassment in the workplace quickly
moved to the classroom in order to combat sex-based discrimination that
students were facing at school. 39 As the movement against sexual harassment
in the workplace became a prominent public issue, critics and courts began to
focus on sexual harassment in schools that inhibited female education. 40 In
1972, Senator Birch Bayh introduced Title IX, with the intended purpose of
combating the continued unjustified discrimination against women in
education. 41 Title IX, 42 like Title VII, was enacted under the Civil Rights Act
to protect parties from discrimination, in part, based on sex.4 3
Sexual harassment claims on school grounds directly align with
those in the workplace. 44 Employees and students can both file legal claims
when sexual harassment causes the workplace or school to become a "hostile
environment., 45 Hostile environment sexual harassment occurs when an

Unlawful sexual harassment may occur without economic injury to or


discharge of the victim. [5] The harasser's conduct must be unwelcome.
Id.
38 Kate Fogarty, Teens and Sexual Harassment, EDUCATION.COM, 2008,
http://www.education.comlreference/article/Ref TeensSexuall (arguing that any type of
unwanted sexual attention is defined as "sexual harassment" regardless of whether it occurs at
school or on the Internet).
39 Susan Fineran & Larry Bennett, Teenage Peer Sexual Harassment:
Implicationsfor Social Work Practicein Education,43 SOC. WORK 57 (1998).
4 TITLE IX LEGAL MANUAL, supra note 12.
41 118 Cong. Rec. 5803 (1972). Senator Bayh argued that economic inequalities
were rooted in educational inequalities, and sex-based discrimination could not be combated
unless legal protection was extended to the school environment. Id. at 5806-07.
42 Title IX of the Civil Rights Act of 1964, 20 U.S.C. § 1681 (2006). In sexual
harassment cases, courts turn to the language: "No person ... shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination
under any education program or activity .. "
43 TITLE IX LEGAL MANUAL, supra note 12. Congress wanted to "ensure that
public funds derived from all the people are not utilized in ways that encourage, subsidize,
permit, or result in prohibited discrimination." Id; see also Davis v. Monroe County Bd. of
Educ., 526 U.S. 629, 638 (1999) (holding that sexual harassment that is present through a
"hostile environment" is legally redressable under Title IX).
44 See infra notes 45-52 and accompanying text (discussing how school and
workplace sexual harassment align).
45 Hostile environment harassment is one type of sexual harassment. Fineran &
Bennett, supra note 39, at 57. The second type of sexual harassment is defined as quid pro
quo (occurring when a superior makes sexual demands on an inferior in return for some type
of advancement). Id. Quid pro quo is less common among teenagers because the
superior/inferior relationship is lacking. Id. Hostile environment is more common among
teenagers when the perpetrator's behavior causes victims and bystanders to feel intimidated,
offended, and distracted. Id.; see also Department of Education, Office for Civil Rights,
Sexual HarassmentGuidance: Harassmentof Students by School Employees, Other Students,
or ThirdParties, in 62 Fed. Reg. 12034, 12038 (1997). The Department of Education defines a
hostile environment as:
[U]nwelcome sexual advances, requests for sexual favors, and other
verbal, nonverbal, or physical conduct of a sexual nature by an employee,
HAMLINE LAW REVIEW [Vol. 32:207

individual causes the workplace or school "to become hostile, intimidating,


or offensive and unreasonably interferes with an employee's or student's
work. 4 6 Teenagers, like adults, use sexual harassment as a way to gain
power and dominance over their peers, creating a hostile environment where
all students, victims and bystanders, feel intimidated and unsafe. 47 Second,
like in the workplace where employers are responsible for the hostile
environments created by their employees,4 8 schools are responsible for the
hostile environments created by their students. 49 The U.S. Supreme Court has

by another student, or by a third party, that is sufficiently severe,


persistent, or pervasive to limit a student's ability to participate in or
benefit from an educational program or activity, or to create a hostile or
abusive education environment.
Id.
46 Fineran & Bennett, supra note 39, at 57; see, e.g., Davis v. Monroe County Bd.
of Educ., 526 U.S. 629, 639-49 (1999) (holding that, under Title IX, an individual has a cause
of action against a school board for student-on-student sexual harassment if the school has
actual knowledge of the harassment and is deliberately indifferent to it); Harris v. Forklift
Sys., Inc., 510 U.S. 17, 23 (1993) (holding that a hostile environment should be determined by
objective and subjective measures that take into account all of the circumstances, including
frequency, severity, and interference with work performance); Meritor Savings Bank v.
Vinson, 477 U.S. 57, 64-67 (1986) (holding that Title VII is violated when a workplace
becomes hostile as evidenced by "discriminatory intimidation, ridicule, and insult" that alters
the conditions of a victim's employment and creates "an abusive working environment").
47 S. STRAUSS & P. ESPELAND, SEXUAL HARASSMENT AND TEENS 7 (1992). The
genesis of the term "sexual harassment" is rooted in the concept of "subordination" and the
curtailing of equal opportunities. Kathryn Abrams, Subordination and Agency in Sexual
Harassment Law, in 111 DIRECTIONS IN SEXUAL HARASSMENT LAW 114 (Catharine
MacKinnon & Reva Siegel eds., 2004). In a leading study conducted by the American
Association of University Women Educational Foundation, students reported that one reason
they harassed other students was because "[they] wanted the person to think [they] had some
sort of power over them." AMERICAN ASSOCIATION OF UNIVERSITY WOMEN EDUCATIONAL
FOUNDATION, HOSTILE HALLWAYS: THE AAUW SURVEY ON SEXUAL HARASSMENT IN
AMERICA'S SCHOOLS 7, 13 (1993) [hereinafter AAUW].
In addition, both adults and teenagers use sexual harassment as a way to establish a
hierarchy and maintain position. In the workplace, adults degrade co-workers in order to make
it more difficult to compete for position and advancement. WILLIAM PETROCELLI & BARBARA
KATE REPA, SEXUAL HARASSMENT ON THE JOB 1/9 (2d ed. 2000). Likewise, peers demean
potential competitors, particularly in online environments. Connie Goddard, H8 @ skul:
Cyber World Bullying, EDUC. DIG., Mar. 2008, at 4. They use social networking sites to
increase social status and connect with those higher up on the "social ladder." Del Stover,
Treating Cyberbullying as a School Violence Issue, EDUC. DIG., Dec. 2006, at 40, 41.
Teenagers try to connect online with the dominant in order to become more dominant
themselves by denigrating and excluding others. Id.
48 See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) (holding that
an employer is liable for the sexual harassment by supervisors of employees); Faragher v. City
of Boca Raton, 524 U.S. 775 (1998) (holding that employer liability depends on (1) whether
the employer reasonably tried to prevent the sexual harassment and (2) whether the employer
immediately tried to stop the sexual harassment upon notification).
49 See, e.g., Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 648 (1999)
(holding that a school will face liability for peer sexual harassment if it remains "deliberately
indifferent" to the harassment and its lack of response is "clearly unreasonable in light of the
known circumstances"); see also King v. Northeast Sec. Inc., 790 N.E.2d 474,486 (Ind. 2003)
2009] THE CDA § 230 DEFENSE

held that if a school is aware of peer sexual harassment and fails to respond,
then it can face liability.5 ° When sexual harassment occurs at school, the
school is not held liable for the actions of the harassers, but rather the school
is held liable for "its own decision to remain idle in the face of known
student-on-student harassment in its schools.' Courts hold employers and
schools liable for their failure to prevent or remedy the damaging hostile
environment that has been created.52

B. Creatinga Hostile Environmentin a New Forum: Online Sexual


Harassment

With the rise of technology and the escalated number of teenagers


using computers and the Internet on a daily basis, peer sexual harassment is
entering a new environment-cyberspace.5 3 The concept of harassment and
bullying might now be ancient, but its presence in cyberspace presents new
challenges for school systems and sexual harassment law. 54 With the
expanding use of online environments comes new problems; and schools and
researchers alike differ in the ways that they define student e-mails, blogs,
posts, and instant messages that are of a sexual nature and target other
students. 55 "Cyberbullying," "cyber harassment," and sexual harassment are
all phrases that have been used to refer to the extension of harassment in the
traditional work and school forums to the online environment.56 Despite

(holding that schools can be liable for not protecting students who are threatened and harassed
by other students); Cynthia Gomey, Teaching Johnny the Appropriate Way to Flirt, N.Y.
TIMEs, June 13, 1999, (Magazine), at 42, available at http://www.users.muohio.edu/
shermalw/SEXHARRASSMENT-NYT6-99.html (discussing the Lyle v. Independent School
District 709 settlement that required a Minnesota school district to pay damages and
implement sexual harassment policies after a 15-year-old student was sexually harassed by
graffiti on a boys' bathroom stall); Monica L. Sherer, No Longer Just Child's Play: School
Liability Under Title IX for Peer Sexual Harassment, 141 U. PA. L. REv. 2119, 2146
(discussing the Mutziger v. Independent School District 272 settlement that required a
Minnesota school district to pay damages to the youngest sexual harassment claimant in
American history-7-year-old Cheltzie Hentz).
50 See supra note 49 and accompanying text.
51 Davis, 526 U.S. at 641.
52 Id. at 646. The Supreme Court found that because schools retain "substantial
control over the context in which the harassment occurs," and over the harasser, liability is
appropriate. Id.
53 See ROBIN M. KOwALSKI, CYBER BULLYING: BULLYING IN THE DIGITAL AGE
182 (2008) (reporting that 90% of preteens and teens have Internet access).
54 Goddard, supra note 47, at 4.
55 See infra notes 60-62 and accompanying text (discussing the large number of
teenagers who use the Internet for social networking); see also infra notes 132-138 and
accompanying text (discussing the large number of schools that require teenagers to use the
Internet as5 part
6 of the curriculum).
See, e.g., BARBARA COLOROSO, THE BULLY, THE BULLIED, AND THE
BYSTANDER: FROM PRESCHOOL TO HIGH SCHOOL-How PARENTS AND TEACHERS CAN HELP
BREAK THE CYCLE OF VIOLENCE 13 (2004) (defining cyberbulling as "conscious, willful, and
deliberate hostile activity intended to harm, induce fear through the threat of further
HAMLINE LAW REVIEW [Vol. 32:207

which term is used to describe the harassing behavior that occurs online
among pre-teens and teens, the stories cited all remain the same-tales of
teenagers using sexual words to degrade and destroy the reputations, self-
esteem, and lives of their peers.57

1. Hostile Environments in the Online Forum

Online sexual harassment occurs in numerous technological


environments, including e-mail, instant message, text message, websites,
weblogs, chat rooms, and social networking sites.58 Social networking sites,
such as MySpace, Facebook, Xanga, LiveJournal, and Friendster are
especially popular among teenagers who want to keep an online journal,
comment on one another's pages, or connect with friends. 59 According to a
2007 study, 50% of American teenagers (ages 12 to 17) have a social
networking account.6° Social networking sites generally allow any teenager
with an e-mail address to create a profile and begin posting comments and
sharing information with the public and/or their "friends.",6' Similar to social
networking sites, trash polling sites or forum sites, such as juicycampus.com,

aggression, and create terror"); Fogarty, supra note 38 (defining sexual harassment among
teenagers as "unwelcome attention of a sexual nature, occurring through verbal and/or
physical interaction," whether it occurs at school or on the Internet); Strom & Strom, supra
note 2, at 35 (defining cyber harassment as harassment that "involves using an electronic
medium to threaten or harm others").
57 See Chaffin, supra note 3, at 774 (describing a 15-year-old who was harassed
on a website devoted to showing "people how gay" she was and detailing a 13-year-old's
suicide after being harassed online by a group of girls about his "small stature"); Halligan,
supra note 6 (detailing the tragic suicide of a teenager who was tormented with sexual
preference accusations); Strom & Strom, supra note 2, at 37 (detailing a 16-year-old who was
sexually harassed when her ex-boyfriend posted her contact numbers on sex-oriented websites
and blogs).
58 See KOWALSKI, supra note 53, at 182 (identifying e-mail, postings, and social
networking sites as primary environments for online harassment); Chaffin, supra note 3, at
784-86 (defining "social networking" as "having an online journal or being an amateur
commentator" or "finding friends and connecting with them," and defining "instant
messaging" as "real-time conversation online"); Mark Franek, Foiling Cyberbullies in the
New Wild West, 63 EDUC. LEADERSHIP 39 (Dec. 2005/Jan. 2006) (identifying e-mails, instant
messages, text messages, and website posts as environments that often host "inappropriate and
hurtful rumors or threats").
59 Chaffin, supra note 3, at 784; see also DANIEL J. SOLOVE, THE FUTURE OF
REPUTATION: Gossip, RUMOR, AND PRIVACY ON THE INTERNET 24 (2007) (noting that there are
more than 200 social networking sites, which people use to share personal information in an
online environment).
60 Carol Brydolf, Minding MySpace: Balancing the Benefits and Risks of
Students' Online Social Networks, EDUC. DIG., Oct. 2007, at 4, 5.
61 See Chaffin, supra note 3, at 784; see also Cheryl J. Eisner, Note, MySpace in
a Post-Grokster World: Digital Finger Pointingfor Offenses PerpetratedThrough Use of
Social Networking Sites After MGM v. Grokster, 6 CARDOzO PuB. L. POL'Y & ETIcs J. 467,
472 (2008); The Facebook, www.thefacebook.com (last visited Sept. 6, 2008); MySpace.com,
www.MySpace.com (last visited Sept. 6, 2008).
2009] THE CDA § 230 DEFENSE

schoolscandal.com, and ihateher.com, invite individuals to identify 62 and


comment on other people's sexual preference and sexual promiscuity.
Online environments become hostile when teenagers sexually harass
their peers by distributing gossip that may or may not be true and most often
is blatantly false.63 This hostility is magnified through the swiftness with
which sexually derogatory comments travel online. 64 Through the use of cell
phones and personal digital assistants ("PDAs"), harassers can type messages
and target their peers within seconds.65 Cingular recently announced a 2008
partnership with MySpace that will allow users to log in to their MySpace
accounts from their cell phones.66 Because online sexual harassment is often
more aggressive and vulgar, the ease with which comments are posted
contributes to the hostility of the online environment.67

2. Forms of Sexual Harassmentin the Online Forum

One of the most popular forms of online sexual harassment among


peers includes posting inappropriate sexual remarks or questions online.68
Teenagers often use online environments as spaces where they can post and
send messages about one another in order to "inflict humiliation, fear, and a
sense of helplessness" to peers who cannot control what the harassers write
and distribute.69 Peers might sexually harass a peer by sending a sexually
offensive e-mail to that individual or by distributing an e-mail that makes
sexually offensive claims about that individual.7 ° In one seventh grade
computer class, a "Hot or Not" mass e-mail was distributed among
classmates that featured pictures of female classmates and asked students to
vote.71 Harassers might also send instant messages, such as in the case where
eighth grader Sonya Sackner-Bernstein received messages with sexual
comments and inappropriate language.72 Teenagers might also find

62 See Strom & Strom, supra note 2, at 38.


63 Chaffin, supra note 3, at 786.
64 See infra notes 111-115 and accompanying text (identifying the quickness with
which sexually harassing material can be distributed to global audiences).
65 KOWALSKI, supra note 53, at 182.
66 Id. Critics fear that linking MySpace to the largest provider of cell phone
service in the United States will allow teenagers to more easily target their peers through
posting comments on MySpace in addition to text messaging throughout the day. Id. at 183.
67 Chaffin, supra note 3, at 783; see infra notes 99-110 and accompanying text
(discussing the aggressiveness and vulgarity of online sexual harassment because of
dehuamization and deindividuation).
68 Fogarty, supra note 38, at 2.
69 See Strom & Strom, supra note 2, at 35.
70 See Long, supra note 5, at 28. Users can sexually harass their peers by
distributing gossip that might or might not be true, and, unfortunately, most often is blatantly
untrue. Chaffin, supra note 3, at 786.
71 Chaffin, supra note 3, at 786.
72 Charkes, supra note 4.
HAMLINE LAW REVIEW [Vol. 32:207

themselves the victims of sexual solicitation, which occurs when a harasser


tries to seduce a peer into sexual acts.73
Another form of online sexual harassment occurs when teenagers
post sexually defamatory comments or sensitive private information on
social networking sites or weblogs. 74 A 16-year-old girl was sexually
harassed by her ex-boyfriend when he posted her e-mail address, cell phone
number, and street address, on several sex-oriented websites and blogs.75 As
a result, the teenager was left helpless and embarrassed when she began
receiving numerous instant messages and prank calls, and people honked
their car horns as they drove by her house.76 Sexual identity is a sensitive
issue for teenagers, and sexual harassment that focuses on a person's sexual
promiscuity can be extremely damaging.77 Comments that focus on a
person's sexual orientation can be equally harmful. 78 When analyzing in-
person sexual harassment, the American Association of University Women
("AAUW") found that "86% of all students surveyed say they would be
'very upset' if they were called gay or lesbian. . .. No other type of
harassment-including actual physical abuse-provoked a reaction this
strong among boys.,, 79 Similar reactions have been reported in online sexual
harassment situations. 80 For example, when peers spread rumors via instant
message and chat rooms that Ryan Halligan was gay, the harassment caused
such pain and humiliation that the 13-year-old committed suicide.8 1
Posting and sending sexually offensive photographs is another form
of sexual harassment that teenagers sometimes use.82 As critic Cynthia
Wagner notes, all a harasser has to do is post a comment and a photo-
shopped photograph, claiming that a peer is "secretly a pole-dancer," and her
reputation may be irreparably damaged.83 At one middle school, a "popular
girl" took a picture of an unpopular girl going to the bathroom and shared the
image with others.84 With the advance of technology and the ease with which
teenagers can post photographs online from their camera phones, nastier stuff

73 Fogarty, supra note 38, at 1.


74 See Strom & Strom, supra note 2, at 37.
75 Id.
76 Id.
77 Id.
78 See AAUW, supra note 47, at 20.
79 Id.
80 See supra note 57 and infra note 81 and accompanying text (discussing a
teenage boy's suicide after being harassed online about his sexuality).
81 Halligan, supra note 6.
82 See Francine Dehue, Catherine Bolman & Trijntje Vollink, Cyberbullying:
Youngsters' Experiences andParentalPerception, 11 CYBERPSYCHOLOGY & BEHAv. 217, 218
(2008) (explaining that it is sexual harassment when someone's picture is posted online
without permission).
83 Cynthia G. Wagner, Beating the Cyberbullies, THE FUTURIST, Sept.-Oct. 2008,
at 14.
84 Long, supra note 5, at 28.
20091 THE CDA § 230 DEFENSE 219

is starting to emerge.85 Teenagers can take a picture of anyone, anywhere and


post that photo in a manner of seconds, allowing it to be viewed,
downloaded, and archived around the world.86
The final form of online peer sexual harassment occurs when a
harasser creates a sexually defamatory profile of another on a social
networking site or weblog. 87 A harasser can steal (or create) an e-mail or
instant message account on behalf of another, and then create an entire
website or profile in that person's name. 88 Eighth grader Sonya Sackner-
Bernstein thought she was corresponding online with a close friend that she
could trust. 89 She shared many intimate details before learning that the friend
she thought she was corresponding with was actually another classmate who
had intentionally created a screen name nearly identical to that of her
friend. 90 Sonya was mortified.9 1 In a more publicly reported incident, a
mother helped her daughter create a MySpace profile that depicted her as a
16-year-old boy in order to lure 13-year-old Megan Meier into believing that
this boy liked her.92 After receiving
93
cruel messages from the false MySpace
profile, Megan hanged herself.

3. Dangersof Sexual Harassmentin the Online Forum vs. In-Person

There are numerous dangers associated with sexual harassment,


whether it occurs online or in-person, because of its high frequency of
occurrence. 94 The AAUW reported that in-person peer sexual harassment
occurs at an alarming rate-79% of students have been harassed by current
or former students at school (86% of girls and 71% of boys).95 In addition,
statistics have been reported to be as high as 97% in some junior high
schools.9 6 When it comes to online sexual harassment, studies report that

85 Franek, supra note 58, at 39.


86 Id.
87 See Chaffin, supra note 3, at 789 (arguing that "pseudonymity can be just as
dangerous as anonymity because cyberbullies can easily take on the persona of their victim or
their victim's friends and create new avenues of harassment").
88 KoWALsKI, supra note 53, at 182.
89 Charkes, supra note 4.
90 Id.
91 Id.
92 Michels, supra note 6; see also Jennifer Steinhauer, Woman Indicted in
MySpace Suicide Case, N.Y. TIMEs, May 16, 2008, available at
http://www.nytimes.com/2008/05/16/us/l6myspace.html?hp(reporting that because the adult
mother actually participated in the online activity, she was charged with "one count of
conspiracy and three counts of accessing a computer without authorization and via interstate
commerce to obtain information to inflict emotional distress").
93 See Michels, supra note 6.
94 See infra notes 95-98 and accompanying text (discussing the high frequency of
occurrence of peer sexual harassment).
95 AAUW, supra note 47, at 11.
96 id.
HAMLINE LAW REVIEW [Vol. 32:207

anywhere from 20% to 40% of teenagers have been harassed.97 While the
frequency of occurrence for online sexual harassment seems much less than
in-person sexual harassment, online harassment is increasing in frequency at
an alarming rate. 98
There is, however, an increased danger when the harassment occurs
online instead of in-person because the harasser/harassee relationship
becomes dehumanized in the online environment. 99 Cathy Smith, a
Pennsylvania seventh-grade computer teacher, shows students a video clip
that demonstrates that teens would not say in person many of the things that
they post online. 00 Smith reports that after watching this video, students are
able to observe that the words they use in online environments are much
more cruel and aggressive than the words they would choose when
physically facing a classmate. 101 The dehumanization of the online peer
relationship eliminates physical and social cues of the victim's reaction to the
harassment, and the harassers do not have to face the consequences of their
behavior. 10 2 With online sexual harassment, the victim becomes "faceless...
literally dehumanized to nothing more than an entity on a computer
screen.' 1 3 One teenage boy reported that he did not realize that rating his
female classmates on a "Hot or Not" site would be so hurtful: "He was
dismayed to see some of the girls crying about it the next day, but he was

97 Stover, supra note 47, at 41; see also Fogarty, supra note 38 (reporting that a
Girl Scout Research Institute study found that 30% of girls who used the Internet had been
harassed while in a chat room); Long, supra note 5, at 28 (reporting that 32% of teenagers
report being harassed online, including having "embarrassing [pictures] posted or rumors
about them spread online").
98 See Charkes, supra note 4 (providing a report conducted by the Journal of
Adolescent Health, sponsored by the Centers for Disease Control and Prevention, which
showed that the number of adolescents who had reported being harassed online increased by
50% between 2000 and 2005).
99 See infra notes 100-105 and accompanying text (discussing the dehumanization
that occurs in the online environment, causing online sexual harassment to be more cruel and
aggressive).
100 Long, supra note 5, at 29. The video shows the following:
[Flour middle school girls sit down together at school. After saying hello
cheerfully, one looks over at her classmate and says matter-of-factly,
"Megan, you're a tramp. Ryan Fitch told me you made out. Everyone
knows. He says your breath smells like garbage . . . . You're the most
desperate girl he knows, besides your mom. How many boyfriends does
she have?" After several more cruel comments, the girl finally stops her
insults, the screen goes black, and a sentence appears: "If you wouldn't
say it in person, why say it online?"
Id.
101 Id. Harassers who do not have to physically confront their victims often "feel
emboldened and uninhibited, making their messages more vicious than they would be in a
personal confrontation." KATHLEEN CONN, BULLYING AND HARASSMENT: A LEGAL GUIDE FOR
EDUCATORS 164 (2004). Not being able to see the victim's response also leads harassers to
make more attacks, which can come more quickly with the ease of technology. Id.
102 See Dehue et al., supra note 82, at 217.
103 Chaffin, supra note 3, at 793.
2009] THE CDA § 230 DEFENSE

most distressed to find out his younger sister had been added to the site...'' °4
'She was crying when I got home and wouldn't even look at me.
Because technology has minimized the reflection time that once existed
between planning a prank and committing the deed, teenagers are more
likely to sexually harass their peers online when they normally would not do
so in person.' 05
Similarly, another increased danger of online sexual harassment
when compared with in-person sexual harassment is the element of
"deindividuation."'' °6 "Deindividuation" occurs when people in groups
choose to act as a group, which can often cause a demonstration of "more
aggressive, deviant, antinormative, or socially unacceptable behaviors."' 0 7
Unlike sexual harassment in the workplace or school room, where there is
more likely to be a single harasser in a given incident, online sexual
harassment gives rise to group harassment, where multiple harassers act at
once.10 8 There is a group mentality among harassers that causes them to
harass together, until the victim feels like everyone is against him or her. 1 9
Because the harassment is deindividuized, teenage
0
perpetrators are also more
likely to find the harassment entertaining."
Online harassment is more permanent and continuous, so the victim
may feel even more violated when text or photographs are communicated to
a large audience in a short time."' Rather than information staying within a
small, private group, a permanent record of the harassment is created in4
print.'' The victimization is ongoing" and it becomes global in reach."
3

Harassers can capture indecent and embarrassing images or video via their
cell phone and broadcast the footage to the entire school, community, or
nation. 15
Finally, unlike in-person harassment, online attacks that could be
considered less intrusive are less likely to be viewed by the public as "sexual
104 Long, supra note 5, at 29.
105 Franek, supra note 58, at 39-40.
106 Bernard Guerin, Social Behaviors as Determined by Different Arrangements of
Social Consequence: Social Loafing, Social Facilitation,Deindividuation, and a Modified
Social Loafing, 49 PSYCHOL. REc. 565, 566 (1999).
"07 id.
108 Long, supra note 5, at 29.
109 Id. (quoting Caitlin Johnson, editor of bNetS@vvy.com, a newsletter that is
designed to help kids be safe online).
110 Nancy Willard, Schools Should Enact Cyberbullying Policies, in SCHOOL
PoucIEs 184, 186 (Jamuna Carroll ed., 2008).
"1 See Strom & Strom, supra note 2, at 36; see also supra notes 64-67 and
accompanying text (noting that the hostility of online environments is magnified when
harassers can use cell phones and PDAs in addition to their computers to send sexually
harassing material globally within a matter of seconds).
112 See Strom & Strom, supra note 2, at 36.
113 Willard, supra note 110, at 188.
114 Wagner, supra note 83, at 14; see also Willard, supra note 110, at 188 (noting
that "material can be distributed world-wide and is often irretrievable").
115 Long, supra note 5, at 28.
HAMLINE LAW REVIEW [Vol. 32:207

harassment."' 1 6 When sexually explicit statements were written on a


bathroom stall about a 15-year-old high school student in Duluth, Minnesota,
the Minnesota Department of Human Rights and the Office for Civil Rights
of the U.S. Department of Education were quick to recognize an occurrence
of sexual harassment, and the student was compensated. 1 7 However, when
sexually explicit statements were posted on a webpage about a 15-year-old
girl in South Burlington, Vermont, not only was the high school sophomore
unable to file a sexual harassment claim, but she eventually felt that she had
no escape but to be home-schooled. 1 8 Online harassing behaviors are less
likely to be regarded as sexual harassment because they are considered to be
less intrusive, merely because they are non-physical." 9
Online harassment is also less likely to be considered "sexual
harassment" because some believe that it might be protected as free speech
by the First Amendment. 20 As students begin to interact more and more
online, schools sometimes feel torn between providing a safe environment
and allowing students their right to free speech.' 21 When principal Donn
Harris suspended a student for harassing another student on MySpace, he
decided to put his job as a school administrator in front of free speech. 122 He
doubted that his decision would hold up in a court of law. 123 However, Harris
would find supporters in those who argue that low value speech is not
afforded the protections of free speech. 124 In Chaplinsky v. New Hampshire,
the Supreme Court held that there is no First Amendment protection for the
"lewd and obscene, the profane, the libelous, and the insulting or 'fighting'
words.' 25
When analyzing free speech in school environments, the Supreme
Court has found that students have limited rights. 126 In Tinker v. Des Moines,
the Court considered (1) what message the students intended to convey and
whether the speech would normally be protected under the First Amendment;
116 See Cheryl Terrance, Amie Logan & Douglas Peters, Perceptions of Peer
Sexual Harassment Among High School Students, SEx ROLES: J. OF RES. (Oct. 2004),
available at http://findarticles.com/p/articles/nilm22941is_51/ai-n9484008 (arguing that
"less intrusive" behaviors are less likely to be viewed as sexual harassment).
117 See Gorney, supra note 49.
118 Chaffin, supra note 3, at 774.
119 Terrance et al., supra note 116, at 2.
120 See Brydolf, supra note 60, at 5.
121 See id.
122 Id. at 4.
123 Id. at5.
124 See Chaffin, supra note 3, at 800.
125 Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). The court reasoned
that "such utterances are no essential part of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality." Id. (citing ZECHARIAH CHAFEE JR.,
FREE SPEECH IN THE UNITED STATES 149 (1941)).
126 See, e.g., Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Bethel Sch.
Dist. No. 403 v. Fraser, 478 U.S. 675 (1986); Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
393 U.S. 503 (1969).
2009] THE CDA § 230 DEFENSE

and (2) whether the speech causes "substantial disruption of or material


interference with school activities."1' 27 Even if a student's speech is protected
by the First Amendment, if it causes "substantial disruption," then the school
can regulate it. 128 Thomas Wheeler, a board member on the National School
Boards Association Council of School Attorneys, argues that the Tinker
standards apply directly to online student speech, so that "if the statement is
a true threat, obscene, defamatory, fighting words, or insightful, it is not
protected speech regardless of whether it is uttered in school, in a poem at
home, or in cyberspace."'' 29 Therefore, schools can regulate protected online
speech if they can show that the speech was likely to create a "substantial130
or
material disruption at school" and the website was accessed at school.

4. Injury to the Teen Victim of Online Sexual Harassment

Victims of online sexual harassment suffer numerous injuries,


including: (1) the inability to escape an environment where they are often
required to be; (2) the hindered ability to succeed in school and future
careers; and (3) skewed views of sexual and social relationships, leading to
potentially dysfunctional adult relationships.' 31 First, with the increased need
to be online for social interaction, school research, and homework
assignments, victims often feel helpless and unable to escape the ongoing
harassment. 32 Since the 1990s, schools have been using online education as
a way to supplement teaching and learning and to create online communities
that stimulate educational growth. 13 3 Now, in the twenty-first century,
education often requires students to be online both in school and out of
school on a regular basis. 34 For example, many high school economics

127 See Tinker, 393 U.S. at 513-14.


128 Id.; see also Fraser, 478 U.S. at 685 (holding that a "sexually explicit
monologue" is not protected student speech because it is "vulgar and lewd," and it
"undernine[s] the school's basic educational mission"); Hazelwood, 484 U.S. at 272-73
(holding that the school can regulate student speech and refuse to "lend its name and resources
to the dissemination of student expression" if the school has "legitimate pedagogical
concerns").
129 Thomas E. Wheeler II, Slamming in Cyberspace, AM. SCH. BOARD J., Jan.
2005, at 30.
130 id.
131 See infra notes 132-151 and accompanying text (discussing the injuries
suffered by victims of online sexual harassment).
132 See CONN, supra note 101, at 164.
133 See, e.g., JtM CUMMINS & DENNIS SAYERS, BRAVE NEW SCHOOLS:

CHALLENGING CULTURAL ILLITERACY THROUGH GLOBAL LEARNING NETWORKS ix (1995);


ONLINE EDUCATION: PERSPECTIVES ON A NEW ENVIRONMENT xvii (Linda Harasim, ed., 1990).
134 See, e.g., Luciana Bazzini, From Grounding Metaphors to Technological

Devices: A Call for Legitimacy in School Mathematics, 47 EDUC. STUD. MATHEMATICS 259
(2001) (promoting the use of technology in mathematic education in order to enhance
cognitive understanding); William 1. Bauer, Sam Reese & Peter A. McAllister, Transforming
Music Teaching via Technology: The Role of Professional Development, 51 J. RES. MusIc
EDUC. 289 (2003) (promoting the use of technology in music education in K-12); Julie Coiro
HAMLINE LA W REVIEW [Vol. 32:207

teachers assign online stock market simulation projects. 35 Further, the state
of Michigan now requires an online class as a high school graduation pre-
requisite, 36 and some educational institutions offer "virtual school" systems,
where classes are conducted completely online.t37 Online school instruction
increases student online activity to the point where teenagers spend so much
time online that the online environment becomes a normal part of both their
educational and social lives-thus,
13
making escape from online sexual
harassment extremely difficult.
Second, as a result of sexual harassment (whether online or in-
person) teenage victims demonstrate a hindered ability to succeed in school
and future careers. 139 Many report having difficulty succeeding in school
because online harassment distracts "victims, bystanders, and perpetrators
from concentrating on schoolwork."'' 40 This lack of focus causes students to
skip school, perform poorly, and miss out on important future
opportunities.14 Victims of sexual harassment are at a greater risk of losing
scholarships and recommendations for awards, colleges, or jobs, all of which
can lead to decreased career opportunities.1 42 Further roadblocks to future
success include self-blame, lack of confidence, and depression, which many
victims experience. 143 Nearly 50% of students that have been sexually

& Elizabeth Dobler, Exploring the Online Reading Comprehension Strategies Used by Sixth-
GradeSkilled Readers to Searchfor andLocate Information on the Internet,42 READING RES.
Q. 214 (2007) (promoting online reading strategies and activities to enhance reading
comprehension among sixth-graders); Margaret C. Hagood, New Media and Online
Literacies: No Age Left Behind, 38 READING RES. Q. 387 (2003) (arguing that the reality of
twenty-first century education is that teachers have to consider online tools in their
instruction); Mark Warschauer, A Developmental Perspective on Technology in Language
Education, 36 TESOL Q. 453 (2002) (promoting technology incorporation into language
education).
135 Jane Lopus & Dennis Placone, Online Stock Market Gamesfor High Schools,
33 J. ECON. EDUC. 192 (2002).
136 Ken Fisher, Michigan to Require "Online Courses" for High School
Graduation, ARS TECHNICA, Apr. 23, 2006, available at http://arstechnica.coml
news.ars/post/20060423 -6657.htmi.
137 Blake Melnick, Virtual Schools: The Changing Face of Education?,91 ENG. J.
85, 85-88 (2002).
138 See supra note 118 and accompanying text (reporting the case of a high school
sophomore who felt she had no escape from online sexual harassment at school); see also
supra notes 11I-115 and accompanying text (noting the permanent and continuous nature of
online sexual harassment). In addition, online assignments might bring teenagers to the online
environment, but once there, some might spend more time socializing than doing homework.
See Wagner, supra note 83, at 14. Among girls ages 12 to 18, nearly 75% reported spending
more time in "chat rooms, on message boards, or IMing" than completing homework. Id.
139 See infra notes 140-146 and accompanying text (discussing the negative effects
sexual harassment has on victims' school and career performance).
140 Wagner, supra note 83, at 14.
141 Stover, supra note 47, at 41 (noting that victims who are harassed could be
"more likely to skip school, have declining academic performance, and be depressed").
142 Fineran & Bennett, supra note 39, at 55.
143 See Fogarty, supra note 38, at 4-5 (detailing the self-blame that victims often
suffer from and the skewed view that the sexual harassment is their fault).
2009] THE CDA § 230 DEFENSE

harassed in any environment suffer from embarrassment and feel self-


conscious, less confident, and scared. 44 Some victims experience deeper
feelings of depression and hopelessness, causing them to withdraw and
completely avoid school or social 146settings altogether. 145 Others engage in
violence, or worse, commit suicide.
Third, as a result of sexual harassment (whether online or in-person),
teenagers suffer from skewed views about social and sexual relationships,
leading to potentially dysfunctional adult relationships. 47 Because online
sexual harassment occurs so frequently and is so often accepted as normal
teenage behavior, victims and perpetrators alike view harassment as
"normal.' 48 When sexual harassment becomes acceptable, learned behavior,
teenagers develop unhealthy and unrealistic perspectives of sexuality.149
Teens' sexual integrity becomes threatened and their present and future peer
relationships become based on unhealthy sexual standards. 5 ° Many are at
risk of developing dysfunctional adult relationships, and some even report
that they doubt they could have any sort of positive intimate relationship
after being sexually harassed.151

144 Fogarty, supra note 38, at 3-4 (detailing sexual harassment that occurs both in
school and on the Internet); see also AAUW, supra note 47, at 16-17 (detailing sexual
harassment that occurs in schools).
145 See Strom & Strom, supra note 2, at 38.
146 See Long, supra note 5, at 29 (noting that victims often become depressed and

may completely avoid school, engage in school violence, or commit suicide); see also
Halligan, supra note 6 (reporting suicide of teenager Ryan Halligan); Michels, supra note 6
(reporting suicide of 13-year-old Megan Meier).
147 See Fogarty, supra note 38, at 4-5.
48 Terrance et al., supra note 116, at 3. Social power hierarchies become
reinforced by teenage online sexual harassment that serves as a training ground where sexual
harassment becomes normalized and dismissed. Fogarty, supra note 38, at 2; see also Davis v.
Monroe County Bd. of Educ., 526 U.S. 629, 651-52 (1999) (finding that sexual harassment
can be even more pervasive among teenage peers who are "still learning how to interact
appropriately." The Court stated that for student-on-student harassment, damages are only
available "where the behavior is so severe, pervasive, and objectively offensive."). Note also
the case of 7-year-old Cheltzie Hentz from Eden Prairie, Minnesota, the youngest sexual
harassment claimant in American history. Sherer, supra note 49, at 2146. Cheltzie
demonstrated her perception of sexual harassment as "normal" when she concluded that the
boys on her school bus were calling her obscene names because "that's just how boys are
supposed to talk to girls .... "Id.
149 Terrance et al., supra note 116, at 1-3. Not only does the "normalization" of
peer sexual harassment affect teenagers, but it also affects society as a whole. See generally
id. Once sexual harassment becomes normalized among teenagers, it also becomes
institutionalized as acceptable behavior in society. Id.
150 Fogarty, supra note 38, at 2 (noting that "sexual harassment harms the sexual

integrity of teens in their peer relationships").


151 AAUW, supra note 47, at 17. Note that the AAUW study focused on in-person
sexual harassment, but the harm reported remains consistent with other parallel online and in-
person harms. See supra notes 94-130 and accompanying text.
The harasser also suffers similar injury through the act of harassing, such as an
increased risk in adulthood of "bullying [his or her] own children, failing at interpersonal
relationships, losing jobs, and ending up in jail." COLOROSO, supra note 56, at xvi. In
226 HAMLINE LAW REVIEW [Vol. 32:207

5. An Effectual Lack of Legal Redress for Online Sexual Harassment

Although there are numerous organizations and researchers which


advocate "prevention" as the appropriate way to handle any type of peer
sexual harassment, 152 once the harm has been suffered, a teenager can choose
to file a legal claim.1 53 The problem with filing a claim for sexual harassment
that occurs in an online environment is that the Civil Rights Act of 1964 does
not provide a statutory remedy for online peer sexual harassment. 154 Teenage
sexual harassment victims could pursue legal redress for their harm under
common-law theories, such as negligence, intentional infliction of emotional
distress, or defamation. 155 Teenage victims of sexual harassment rarely file

addition, because online sexual harassment prevents harassers from having face-to-face
contact with their victims, harassers become desensitized and lack the appropriate
compassion. See Chaffin, supra note 3, at 793 (arguing that online harassers lack compassion
because their victim is dehumanized); Strom & Strom, supra note 2, at 36 (arguing that online
harassers lack compassion). Harassers are less likely to feel "regret, sympathy, or compassion
toward the victim" because their online victim does not seem real. Id. at 36. Such lack of
empathy becomes even more pronounced when harassers act in groups, where they receive
praise for their behavior and reinforcements from other harassers who behave the same way.
Chaffin, supra note 3, at 793; see also Long, supra note 5, at 29 (arguing that many kids get
involved in online harassment because they "get roped in by the bullies"). Sexual harassment
seems "normal" to online harassers, and they do not realize the severity of their actions. Id.
152 See, e.g., GENEVIEVE FRAZIER BRYANT ET AL., SEXUAL HARASSMENT IN THE
SCHOOLS: AVOIDING LIABILITY (Kristina M. Whimpenny ed., 2000); MICHELE ANTOINETTE
PALUDI, SEXUAL HARASSMENT, WORK, AND EDUCATION: A RESOURCE MANUAL FOR
PREVENTION (1998); No ROOM FOR BULLIES: FROM THE CLASSROOM TO CYBERSPACE (Jose
Bolton & Stan Graeve eds., 2005).
153 Researchers who advocate legal redress argue that "cyber harassment is a crime
that resembles other forms of unlawful behavior and is subject to prosecution." Strom &
Strom, supra note 2, at 36. Generally, sexual harassment claims that teenagers might file for
in-person harassment would be covered under Title IX of the Civil Rights Act. See Davis v.
Monroe County Bd. of Educ., 526 U.S. 629, 633, 650-51 (1999) (holding that peer sexual
harassment is covered under Title IX of the Education Amendments Act of 1972 and
claimants can receive damages from schools if the schools acted with "deliberate
indifference" and the harassment interfered with equal access to education).
154 See supra notes 12, 33-52 and accompanying text (explaining that Title VII
provides a legal remedy for sexual harassment in the work environment and Title IX provides
a legal remedy for sexual harassment in the school environment).
155 See, e.g., Doe v. MySpace, 474 F. Supp. 2d 843, 848 (W.D. Tex. 2007), affd
528 F.3d 413, 416-17 (5th Cir. 2008) (filing unsuccessful negligence claims (barred by CDA
§ 230) on the basis that (1) the ISP purported its site to be safe for teens; and (2)(a) the ISP
had a legal duty to protect minor users and (b) the ISP breached this duty by allowing third-
parties to have sexually explicit communication and contact with minors); Doe v. America
Online, 783 So. 2d 1010, 1011-12, 1018 (Fla. 2001) (filing unsuccessful negligence claims
(barred by CDA § 230) against AOL on the basis that (1) the ISP allowed a third-party to
distribute sexual photographs a minor on its website and (2) the ISP should have acted
because it knew or should have known about the images); Lunney v. Prodigy Servs., 723
N.E.2d 539, 540 (N.Y. 1999) (filing unsuccessful defamation and negligence claims against
Prodigy for allowing a third-party to open accounts in a minor's name, post sexually explicit
comments, and send sexually explicit e-mails from that account); see also Carafano v.
Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir. 2003) (filing unsuccessful defamation,
2009] THE CDA § 230 DEFENSE

lawsuits at all, however,1 56 perhaps because online sexual harassment is


typically not viewed as a legally redressable harm, 157 or because common-
law theories do not seem adequate to address the harms the victims have
suffered. 158 Furthermore, a legal solution to online peer sexual harassment is
complicated by the technological environment in which it occurs, making it
difficult to file a claim against the proper defendant.1 59 The question
therefore arises-who should be prosecuted?

negligence, invasion of privacy, and misappropriation of the right of publicity claims (barred
by CDA § 230) against Metrosplash.com for allowing a third-party to create a sexually
offensive dating profile on an adult victim's behalf); Doe v. Friendfinder Network, Inc., 540
F. Supp. 2d 288, 291-93 (D.N.H. 2008) (filing unsuccessful defamation, invasion of privacy,
intentional infliction of emotional distress claims (barred by CDA § 230) against Friendfinder
for allowing a third-party to create an account in her name and advertise her as a sexually
promiscuous "swinger").
156 Very few of the examples discussed in this comment relate a story where a teen
victim brought legal action. See supra notes 6 and 81 and accompanying text (detailing Ryan
Halligan's sexual harassment and eventual suicide); see also supra note 84 and accompanying
text (detailing the harassment suffered by a teenager after a picture of her going to the
bathroom was distributed online); supra notes 89-93 and accompanying text (detailing two
accounts of online profile theft and impersonation and the subsequent harassment of two
teenage girls); supra notes 197-199 and accompanying text (detailing how ISPs refused to
remove sexually offensive comments about a teenage girl who was being falsely identified as
a rape victim).
Compare Prickett v. Infousa, Inc., 561 F. Supp. 2d 646, 648 (E.D. Tex. 2006)
(detailing a case where an adult couple filed an unsuccessful lawsuit (based on defamation,
negligence, intentional infliction of emotional distress, invasion of privacy, etc.) against an
ISP that allowed a third-party to post their names and contact information on an adult
entertainment website), with Strom & Strom, supra note 2, at 37 (detailing a case where a
teenager did not file a lawsuit against an ISP that allowed a third-party to post her name and
contact information on a sex-oriented website).
157 See supra notes 116-130 and accompanying text (noting that online sexual

harassment is often not viewed as "sexual harassment" because it occurs in an online


environment and because people presume that such speech is protected online).
158 Legal redress under a sexual harassment claim aims to protect victims from

sex-based discriminatory practices that cause victims to feel intimidated and deprived of equal
access within the environment in which the harassment occurs. See TITLE IX LEGAL MANUAL,
supra note 12, at § H (2001). Legal redress under defamation aims to protect victims from
feeling harmed by printed words, RESTATEMENT (SECOND) OF TORTS § 568 (1977). Legal
redress under negligence aims to protect victims from being harmed by the intentional act of a
party who owes the victim a legal duty. See RESTATEMENT (THIRD) OF TORTS § 3 (2005).
"9 See Rachel Kurth, Striking a Balance Between Protecting Civil Rights and
Free Speech on the Internet: The Fair Housing Act vs. The CommunicationsDecency Act, 25
CARDozo ARTS & ENT. L.J. 805, 828 (2007) (arguing that victims face a great challenge in
taking legal action "[blecause the Internet allows users to post anonymously, and § 230
purports to shield host Web sites from liability for publishing content of users, [so] an injured
party may be left not knowing whom to sue").
HAMLINE LAW REVIEW [Vol. 32:207

a. HarasserLiability

The primary limitation when prosecuting a teenager who sexually


harasses a peer online is that online harassers are often anonymous.' 6°
Because online harassers are difficult to trace, they can avoid liability, as
well as the fear of getting caught or being punished. 16 1 Some researchers
argue that "everyone leaves footprints in cyberspace," and parents and
teachers can trace the origins of sexually offensive comments by contacting
the ISPs who host the Internet environment. 162 Yet, others argue that online
harassers remain untraceable because even if ISPs could track down the
individual, they are not required to reveal any verifiable information about
the user because of privacy issues. 163 Another limitation with prosecuting the
teenage harasser is that the victim might suffer backlash.' 64 Researchers
disagree about whether victims of online harassment should react or not
react, but both positions acknowledge that the harassment 65is likely to get
worse instead of better once a harasser has been confronted.1

b. ParentLiability

In some cases, teenagers have tried to file a claim against the online
harasser's parents. 166 Some courts have held that parents can be held
responsible for their children's actions if the child "engages in wrongdoing

160 Strom & Strom, supra note 2, at 36.


161 Id.
162 Goddard, supra note 47, at 8. Note that legal scholars who research and write
about Internet crime generally use the term "Internet Service Provider" to refer to the website
operator, host, or the company that owns the website, rather than the company that provides
access to the Internet. See, e.g., Chaffin, supra note 3; Emily K. Fritts, Internet Libel and the
Communications Decency Act: How the Courts Erroneously Interpreted CongressionalIntent
with Regard to Liability of Internet Service Providers, 93 KY. L.J. 765, 774-75 (2004/2005);
SOLOVE, supra note 59; see also Walter Stillwell, Carafano v. Metrosplash.com: An
Expansion of Tort Immunity for Web Service Providers Under 47 U.S.C. 230, Even When
They Take a Greater Editorial Role in Publishing Material from Third Parties, 6 TUL. J.
TECH. & INTELL. PROP. 307, 311-12 (2004) (explaining that courts have broadened the
definition of "ISPs" to a "wide range of cyberspace services," including entities that provide
Internet access, entities that host websites, and entities that host message boards, auction sites,
e-mail listservs, and Internet dating services); infra notes 187-188 (discussing the ways in
which courts have broadened the definition of ISPs to include numerous entities that host
Internet activities).
163 Franek, supra note 58, at 40.
164 See Wagner, supra note 83, at 15 (arguing that if a victim turns in a harasser to
the school or police, "'[the harasser] will hate [the victim] and want to be even meaner to [the
victim]"'); see also KowALsri, supra note 53, at 99 (arguing that "unfortunately," the victim
will "[add] fuel to the fire" by confronting the harasser).
165 See Fogarty, supra note 38, at 5 (arguing that victims should not "ignore what
is happening" because sexual harassment is wrong).
i,,'KOwALSKi, supra note 53, at 105.
2009] THE CDA § 230 DEFENSE

that is a result of parental lack of supervision. ' ' 167 One limitation with
parental liability is, again, because harassers themselves are often masked 16in
anonymity, it is likewise difficult to discover the harasser's parents. 1
Another limitation is that parents do not often know what their children are
doing online. 169 In fact, Ron Wenkart, a U.S. Department of Education
general counsel who addresses Internet issues with parents and teenagers on
a regular basis, notes that if parents
170 knew what their kids were really doing
online, many would be horrified.

c. School Liability

Although schools can be held liable for peer sexual harassment that
occurs on school grounds, schools are extremely limited as defendants for
peer sexual harassment that occurs online. 17 When dealing with school
liability for online sexual harassment, courts have focused on where the posts
and webpages were accessed, rather than where they were created. 172 In J.S.
v. Bethlehem Area School District, a student created an offensive "Teacher
Sux" website that harassed a teacher.173 Although the student created the
website off-campus, the court focused on the "access" point and the fact that
the student was targeting "the specific audience of students. 174 The court
held that "where speech that is aimed at a specific school and/or its personnel
is brought onto school campus or accessed at school by its originator,the
speech will be considered on-campus speech."1 75 However, it is not always
easy to prove that the access point of the offensive Internet activity occurred
on-campus. 176 In Beussink v. Woodland R-IV, a student created an offensive
website that targeted the principal, but the only proven access point on
campus occurred when administrators viewed the website. 177 Therefore, the
court held that the school did not demonstrate that the speech occurred on

167 Id.; see also Steinhauer, supra note 92 (noting that parents can face liability if

they actually participate in the online harassment; however, those situations are outside the
scope of this article).
168 Stover, supra note 47, at 40.
169 Brydolf, supra note 60, at 8.
170 Id. (quoting Ron Wenkart, a U.S. Department of Education general counsel).
171 See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 649 (1999) (holding
that schools are liable for peer sexual harassment that is "severe, pervasive, and objectively
offensive" and interferes with equal access to education); see also Stover, supra note 47, at 41
(noting that the "greater challenge" occurs when the harassment occurs "totally off-campus").
172 See infra notes 173-175 and accompanying text (detailing specific cases on this
point).
173 J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 851 (Pa. 2002).
174 Id. at 865.

175 Id. (emphasis added).


176 See infra notes 177-178 and accompanying text (detailing an example where an
on-campus access point could not be proven).
177 Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175, 1177-80 (E.D.
Mo. 1998).
HAMLINE LAW REVIEW [Vol. 32:207

campus or that the


178
speech "materially and substantially interfere[d] with
school discipline."'
Schools are likely to face liability in situations where a student uses
a cell phone camera to photograph a naked peer or uses a school computer to
sexually harass a peer. 179 These access points are more easily traceable and
defined as "on campus."'' 80 However, for Internet activities that originate off-
campus, it is more difficult to trace whether the activity continued on school
grounds. 18' It is for this reason that Thomas Hutton, staff attorney for the
National School Boards Association, encourages schools not to become
involved in any way with off-campus Internet activity. 182 Once schools
assume any sort of responsibility for policing the activity, then they may face
a lawsuit for failing to intervene. 18 3 Yet, according to case law, whether
schools intervene or not, they are unlikely to face liability unless it can be
proven that the offensive posts or websites were accessed on campus. 184 This
seems correct to Hutton, who argues that "[tihe well-being of students is at
1 85
stake, but school districts are not the arbitrators of the Internet."

d. Internet Service Provider("ISP") Liability

Another possible arbitrator of online hostile environments is the ISP,


which hosts and services the online environments where online sexual
harassment occurs. 86 When the Internet first emerged, "ISP" referred only to
the companies that actually provided access to the Internet, like a telephone
company. 187 However, in the twenty-first century, courts have broadened the
definition of ISPs to include "entities that host websites, and entities that host
message boards, auction sites, e-mail listservs, and Internet dating
services."' 88 When peer sexual harassment occurs in an online environment,

178 Id. at 1181; see also Emmett v. Kent Sch. Dist. No. 415, 92 F. Supp. 2d 1088,
1090 (W.D. Wash. 2000) (finding that the offensive website targeting administration was
accessed "entirely" off-campus and the site did not substantially interfere with anyone's
education).
179 Stover, supra note 47, at 41.
180 Id.
181 Id.
182 Id.
183 id.
184 See supra notes 172-178 and accompanying text.
185 Stover, supra note 47, at 41.
186 See supra notes 187-200 and accompanying text.
187 See Stillwell, supra note 162, at 311-12.
188 Id.; see also supra note 162 and accompanying text (noting that legal scholars
and courts both generally use the term ISP to refer to website operators, hosts, or companies
that own and service the website rather than the company that provides access to the Internet).
Courts regularly use the phrase "ISP" to refer to a wide range of Internet hosts. See
Batzel v. Smith, 333 F.3d 1018, 1028-30, 1028 n.12 (9th Cir. 2003) (broadly defining an ISP
as an entity that "provides access to the Internet," but then noting that the term "ISP" includes
"other providers and users of services on the Internet"); Carafano v. Metrosplash.com, Inc.,
339 F.3d 1119, 1124 (9th Cir. 2003) (supplementing the term "interactive service provider" in
20091 THE CDA § 230 DEFENSE

some critics argue that it is the ISPs' responsibility to foster a positive


climate and to face liability if they fail to do so. 18 9 Some ISPs have taken
precautions to foster a positive climate and prevent online sexual harassment
by allowing users to block others from viewing their profile, contacting
them, or posting comments about them. 19° If a threatening website or profile
has been set up, a user can request that the ISP remove that site.' 91 In
addition, ISPs, such92 as MySpace, have also tried to promote safe Internet use
among their users.
Despite new safety techniques employed by some ISPs, however,
deficiencies remain that contribute to the creation of a hostile online
environment. 193 Both social networking sites and long-standing ISPs, such as
Microsoft, Yahoo!, and AOL, let users access their websites and set up
profiles without asking for any verifiable information, such as age. 194
MySpace might deny access to users younger than 13 and allow only private
profile access to users younger than 17, but users' ages are not verified.1 95 In

place of the term "Internet service provider" (even when citing to cases that use the term ISP)
to refer to the host of a matchmaking service website); Barrett v. Rosenthal, 146 P.3d 510, 523
(Cal. 2006) (using the term ISP in reference to those who host Internet discussion groups).
Some entities, such as Google, deny the term ISP when discussing the traditional notion of
providing customer access to the Internet. See Eli Milchman, Google Denies ISP Rumors,
WIRED, June 30, 2006, available at http://www.wired.com/techbiz/it/news/2006/06nl293.
However, as demonstrated above, when discussing legal liability online, courts and legal
scholars use a more expansive definition of ISP.
189 See Chaffin, supra note 3, at 813 (arguing that ISPs should be held liable for

Internet sexual harassment when "(1) they are notified of harassing content on their web-sites
and (2) they refuse or delay in taking the offensive conduct down"). Compare with school
liability for a hostile environment. See Fineran & Bennett, supra note 39, at 61.
190 KowALsri, supra note 53, at 99; see also Chaffin, supra note 3, at 785-86
(detailing the privacy functions now available at sites, such as MySpace and American Instant
Messaging); Paul Lehman & Tom Lowry, The Marshal of MySpace: How Hemanshu Nigam
is Trying to Keep the Site's "Friends" Safe from Predatorsand Bullies, Bus. WK., Apr. 23,
2007, at 88, availableat http://www.businessweek.com/magazine/content/07_17/b4031092.
htm (reporting that MySpace has recently hired a former Justice Department attorney, has
restricted access to younger users, and has created a "report abuse" button).
191 KowALSKI, supra note 53, at 99.
192 See Norman Oder, ILA, MySpace Join to Promote Web Safety, 132 LIBR. J. 18,
18 (2007) (reporting that MySpace has partnered with the Illinois Library Association to
distribute "Internet safety bookmarks" about blogging, cyberbullying, and social networking).
193 See infra notes 194-200 and accompanying text (examining the deficiencies in
ISP regulation efforts).
194 Franek, supra note 58, at 40; see also Laura Ascione, "Safe" Social
Networking Sites Emerge: Companies Launch More Secure, Educational Alternatives to
MySpace and Friendster,ESCHOOL NEws, June 12, 2006, http://www.eschoolnews.com/news/
top-news/index.cfm?i=37032&page=4 (noting that social networking sites, such as Whyville
(targeting children 8 to 15), predicates registration on a parent's e-mail address, a signed
signature slip that is mailed or faxed in (suspicious signatures are denied), and the site blocks
all "foul language" that will lead to "inappropriate conversations" and requires children to
pass a "chat license" test).
195 Chaffin, supra note 3, at 816; see also Doe v. MySpace, 474 F. Supp. 2d 843
(W.D. Tex. 2007) (exemplifying a case where a 13-year-old girl created a MySpace account
HAMLINE LAW REVIEW [Vol. 32:207

addition, although most ISPs have policies that prohibit users from posting
offensive comments, ISPs do not generally remove the comments, unless the
messages involve actual physical threats. 196 An 18-year-old girl's reputation
was ruined when online harassers posted offensive comments and spread 197
rumors that she had accused NBA basketball star Kobe Bryant of rape.
Although her mother contacted several ISPs and requested that the untrue,
offensive comments be removed, many ignored her request. 198 One ISP
responded, "In this day [and] age, there is no privacy."' 99 And when it comes
to bringing claims against ISPs for online sexual harassment that occurs in
their hostile environments, victims find themselves at a loss because ISPs
can use the § 230(c) defense-a defense that gives ISPs blanket immunity
from liability for content created by third parties.2 °°

C. CommunicationsDecency Act and the § 230 Defense

Congress passed the Communications Decency Act of 1996 in an


attempt to regulate material that could be posted on the Internet. 20 1 When
Senator James Exon introduced the CDA, he was specifically concerned
about pornography that was too easily accessible online.2 °2 He intended for

and was sexually assaulted by a 19-year-old "friend" that she met on MySpace);
MySpace.com, Terms and Conditions, http://www.myspace.com/index.cfm?fuseaction=misc.
terms (last visited Jan. 8, 2008). MySpace.com describes its eligibility requirements as
follows:
Use of the MySpace Services and registration to be a Member for the
MySpace Services ("Membership") is void where prohibited. By using
the MySpace Services, you represent and warrant that (a) all registration
information you submit is truthful and accurate; (b) you will maintain the
accuracy of such information; (c) you are 13 years of age or older; and (d)
your use of the MySpace Services does not violate any applicable law or
regulation. Your profile may be deleted and your Membership may be
terminated without warning, if we believe that you are under 13 years of
age, if we believe that you are under 18 years of age and you represent
yourself as 18 or older, or if we believe you are over 18 and represent
yourself as under 18.
Id. Note also that social networking sites often allow users to post very personal information.
Myspace provides users with pre-made answers for marital status, relationship status, sexual
orientation, children, body type, "here for," etc. MySpace.com, supra note 61. Facebook
provides users with pre-made answers for sex, relationship status, "looking for," etc. The
Facebook, supra note 61. Other information in "About Me" sections, for example, is
completely developed by the user. Id.
196 See CoNN, supra note 101, at 164.
197 SOLOVE, supra note 59, at 37.
198 Id.
199 Id.
200 See David L. Hudson Jr., Taming the Gossipmongers,94 ABA J. 19, 19 (2008).
201 See Robert Cannon, The Legislative History of Senator Exon 's
Communications Decency Act: Regulating Barbarianson the Information Superhighway, 49
FED. COMM. L.J. 51, 52 (1996).
202 Id. at 53.
2009] THE CDA § 230 DEFENSE

the CDA to protect children and families from predators and inappropriate
communications.2 °3 Congress reported that it intended for the CDA to
promote freedom of speech in the new Internet medium and to allow ISPs to
self-regulate without fear of liability.2°4 At the same time, Congress also
wanted to "ensure vigorous enforcement of Federal criminal laws to deter
and punish trafficking in obscenity, stalking, and harassment by means of
computer. ''205 But it wanted to do so while keeping government interference
at a minimum. 20 6 In light of these intentions, once passed, the CDA had two
effects: (1) it regulated harassment, indecency, and obscenity online and (2)
it determined that operators of online services would not be held liable for
illegal conduct in the process of self-regulation.2 7
Section 230(c) of the CDA-labeled "Protection for the 'Good
Samaritan' Blocking and Screening of Offensive Material"-speaks to the
second effect of the CDA. 20 8 This section indicates that ISPs will not be
"treated as the publisher or speaker of any information provided by another
information content provider. ' '20 9 In addition, no such party will be held

203 Id.
204 See 47 U.S.C § 230(b) (2000); see also Cannon, supra note 201, at 53 (noting
that Senator James Exon was concerned about online pornography and pedophilia and
introduced the CDA with the intention of protecting "our children and families ... from those
who would electronically cruise the digital world to engage children in inappropriate
communications and introductions"); Fritts, supra note 162, at 774-75 (providing evidence
from the Senate Conference Report and congressional statements that the sole intention in
passing the Communications Decency Act was to overrule Stratton and to allow ISPs to self-
regulate without fear of facing "publisher liability").
205 47 U.S.C. § 230(b). Congress specifically laid out the policies to be promoted
by § 230:
(1) [T]o 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; (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.
Id.
206 SOLOVE, supra note 59, at 152.
207 Id. at 152-54.
208 See infra note 209 and accompanying text.
209 47 U.S.C. § 230(c)(1). Subsection (c)(1) reads in full:
(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.
HAMLINE LAW REVIEW [Vol. 32:207

liable for "voluntarily" self-regulating objectionable material on its website


"in good faith. 2 10 The effect of § 230 is that no website host or ISP will be
held liable as a "publisher" of any information that is posted on its site by
another "information content provider., 21' Essentially, § 230 works as a
defense by removing publishing responsibility from ISPs and placing it onto
other persons or entities who post material on the website.1 2 Attorney and
blogger David Hudson notes, "With gossip, rumor, discriminatory
preferences and intrusions on privacy running rampant on the Internet, more
and more213websites are wielding § 230(c) to protect themselves from
liability.

1. Pre-CommunicationsDecency Act

Before the CDA was enacted, courts had to deal with legal claims in
the Internet medium without legislative guidance. 214 Using common-law
principles, the courts applied publishing and distributing standards to online
claims. 215 Under common law, (1) primary publishers (those with "editorial
control over the publication") could be held liable if found to be "negligent
during the publishing and distribution process"; (2) distributors (those who
"deliver or transmit material published by a third party") could be held liable

§ 230(c)(1).
210 47 U.S.C. § 230(c)(2). Subsection (c)(2) reads:
(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).
§ 230(c)(2).
211 47 U.S.C. § 230(f)(3). Subsection (f)(3) reads:
(f)Definitions
(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.
§ 230(f)(3).
212 See Karen Alexander Horowitz, When is § 230 Immunity Lost?: The
Transformationfrom Website Owner to Information Content Provider,3 SHIDLER J.L. COM. &
TECH. 14, 16 (2007) (noting that § 230 immunity "is based on the defendant's status as a
provider ...[and] is generally seen as an absolute privilege against liability for third-party
speech").
213 Hudson, supra note 200, at 19.
214 See Cara J. Ottenweller, Cyberbullying: The Interactive PlaygroundCriesfor a

Clarificationof the CommunicationsDecency Act, 41 VAL. U. L. REv. 1285, 1297 (2007).


215 See id.
2009] THE CDA § 230 DEFENSE

if they knew about the offensive material and took no action to remove it;
and (3) conduits could not be held liable because they do not control the
material being published and distributed.2 16
Based on a distributor theory of liability in Cubby v. CompuServe,
the court held that the ISP was not liable for defamatory statements made on
its sites because CompuServe was merely a distributor of the material and
not the primary publisher.21 7 The court found that as a distributor, an ISP
cannot be held liable if it does not know or have reason to know of the
defamatory statements.21 8 On the other hand, based on a publisher theory of
liability in Stratton v. ProdigyServices, the court found that the ISP did have
editorial control over the posted comments, which made it more like a
newspaper-i.e., a primary publisher. 2 9 Although the court found that the
"distributor" standard normally should apply in Internet situations, if an ISP
retained editorial control over its content, then it became a primary
publisher.22 ° Many legal scholars criticized Stratton for creating tougher
liability standards for ISPs that tried to regulate content, and less stringent
standards for ISPs that did not regulate content at all. 22 ' As a result, Congress
responded with the 1996 CDA, overruling Stratton.222 Section 230(c) of the
CDA had clear effects on ISP liability: (1) ISPs would not be treated as
primary publishers of content posted by third parties and (2) ISPs would
have immunity from being seen as primary publishers if they chose to restrict
content posted by third parties.223

2. CommunicationsDecency Act in Effect: Case Law

Once the CDA was put into effect, courts interpreted it as giving
ISPs complete immunity from online legal claims.224 Zeran v. America
Online was a landmark case in making § 230(c) an absolute immunity
defense.225 In Zeran, someone posted an advertisement on American Online

216 Id. at 1297-98. Examples of primary publishers include book publishers,


newspapers, and magazine companies. Id. Examples of distributors include bookstores and
libraries. Id. Examples of conduits include telephone or cable companies. Id.
217 Cubby, Inc. v. Compuserve, Inc., 776 F. Supp. 135, 141 (S.D.N.Y. 1991).
218 Id.
219 Stratton Oakmont v. Prodigy Serv., No. 31063/94, 1995 N.Y. Misc. LEXIS

229, at *12-13 (N.Y. Sup. Ct. May 25, 1995).


220 Id.
221 Andrea L. Julian, Freedom of Libel: How an Expansive Interpretation of 47
U.S.C. § 230 Affects the Defamation Victim in the Ninth Circuit, 40 IDAHO L. REv. 509, 516
(2004).
222 Ottenweller, supra note 214, at 1298.
223 See Fritts, supra note 162, at 773 (noting that Congress was clear that § 230
made publisher liability inappropriate for ISPs and that the section would protect ISPs that
chose to edit material on their sites).
224 See infra notes 225-238 (explaining the Zeran decision and the subsequent,
continual application of a broad immunity interpretation of § 230).
2 Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).
236 HAMLINE LA W REVIEW [Vol. 32:207

("AOL") titled "Naughty Oklahoma T-shirts," encouraging people to order


shirts from Kenneth Zeran. 226 When AOL refused to remove the
advertisement, Zeran sued the ISP for its negligence in failing to remove the
offensive comments after being notified of their existence.227 The court held
that AOL was immune from the suit because under § 230(c) AOL was not
the primary publisher of the information, and while the Act allows an ISP to
regulate content, it is not required to do so. 22 8 Zeran set precedent that even
when an ISP fails to remove content after being notified that the content is
harmful, it does not face liability. 229 Legal scholars criticize Zeran for failing
to take Cubby's "distributor liability" into account when concluding that
ISPs have no notice-based liability.2 30 Rather, the Zeran court focused on the
potential negative effects that would occur if ISPs faced any liability,
including the possibilities that: (1) ISPs would feel forced to remove
messages immediately without having a chance to evaluate their
offensiveness-thus, chilling free speech online; (2) ISPs would be deterred
from regulating content because increased regulation would lead to increased
liability; and (3) third parties would be able to manufacture claims, cost-
free.23'
Based on Zeran, courts have consistently refused to impose notice-
based liability.232 For example, in Doe v. America Online, a mother sued
AOL, claiming that it was liable for offensive photographs that another party
posted of her son in a chat room when AOL refused to remove the content.233
The court did not go through a primary publisher versus distributor analysis
when it held that § 230(c) gave AOL immunity from the mother's action.234
Likewise, the district court dismissed Doe v. MySpace, on the basis of

226 Id. at 329. The t-shirts featured "offensive and tasteless slogans" in connection
with the recent Oklahoma City bombing. Id.
227 Id. at 328. Essentially, Zeran argued that AOL should face "distributor

liability" (notice-based liability) because CDA only applies to "publisher liability" and does
not preempt distributor liability. Id. at 331.
228 Zeran, 129 F.3d at 332. The court reasoned that notice-liability, which
would
be required for "distributors," does not apply here because the CDA applies to both publishers
and distributors online. Id. Congress expressly wrote "publisher," but it intended to include
"distributor": "[Distributor] liability is merely a subset, or a species, of publisher liability." Id.
229 See id. at 332 (reasoning that Zeran "attaches too much importance to the
presence of the distinct notice element" because "notice" does not turn a publisher into a
distributor).
230 See Fritts, supra note 162, at 778 (arguing that "[§] 230 does nothing to
overrule Cubby and other traditional distributor cases which should have been persuasive to
the outcome in Zeran"); David R. Sheridan, Zeran v. AOL and the Effect of Section 230 of the
Communications Decency Act Upon Liabilityfor Defamation on the Internet, 61 ALB. L. REv.
147, 168 (1997) (arguing that Congress knew the difference between "publisher" and
"distributor," and if it intended for CDA to apply to distributors, it would have expressly said
so).
231 Zeran, 129 F.3d at 333.
232 See infra notes 233-238 and accompanying text.
233 Doe v. America Online, Inc., 783 So. 2d 1010, 1012 (Fla. 2001).
234 Id. at 1110-12, 1017-18.
20091 THE CDA § 230 DEFENSE

§ 230(c), which involved a 13-year-old girl who was sexually assaulted by a


19-year-old man who solicited her on the site.235 The plaintiff claimed that
236
MySpace was on notice of third-party predator activity on its site.
However, the court found that imposing a legal duty on ISPs to act on such
notice would place too great a burden on ISPs, which would likely result in
ISPs having to shut down communications-the exact opposite of
Congress's intention to promote Internet speech.231 Courts across the country
have therefore consistently held that ISPs are not liable for illegal activity
that occurs on their sites, regardless of whether or not the ISP had notice.238239
In essence, ISPs have thrived under § 230's "broad immunity.'
Some critics argue that this is a direct misinterpretation of § 230(c) and the
legislative intent that defined it. 24° Congress did not intend for § 230(c) to
give ISPs the automatic immunity that is being granted across the country.241

235 See Doe v. MySpace, 474 F. Supp. 2d 843, 848 (W.D. Tex. 2007); see also
Doe v. MySpace, 528 F.3d 413 (5th Cir. 2008) (affirming the district court's dismissal). In
MySpace, the victim claimed ISP liability based on fraud (in purporting MySpace to be safe
for teens) and negligence (in having legal duty to protect teen users and in breaching this duty
by allowing predators to contact teens). Id. at 416-17. This case is distinguishable by the fact
that the actual illegal activity (the assault) occurred offline, but similar to other cases, the
appellate court affirmed that the ISP was not liable because the CDA bars the victim's claim.
Id. at 420.
236 See Doe v. MySpace, 474 F. Supp. 2d 843, 848 (W.D. Tex. 2007); see also
Eisner. supra note 61, at 478-79 (explaining that MySpace had notice of illegal activity
because MySpace solicits young users, and four state attorneys general had urged MySpace to
remedy the dangerous environment it had created).
237 Myspace, 474 F. Supp. 2d at 851.
238 See, e.g., Batzel v. Smith, 333 F.3d 1018, 1031-35 (9th Cir. 2003) (holding that
the ISP was not liable for allowing offensive information to be posted on its listserv because
the ISP's allowance did not equate "creation or development" of the information); Carafano v.
Metrosplash.com, Inc., 339 F.3d 1119, 1122-24 (9th Cir. 2003) (holding that an ISP is not
liable when a third-party creates a sexually offensive dating profile on behalf of another, using
the ISP's "pre-prepared" response categories, because the ISP did not create the profile);
Green v. America Online, 318 F.3d 465, 471 (3d Cir. 2003) (holding that the ISP was not
liable for offensive comments because "monitoring, screening and deletion of content" are
publishing functions, and ISPs are immune as publishers under § 230(c)); Ben Ezra,
Weinstein, & Co. v. America Online, 206 F.3d 980, 985-86 (10th Cir. 2000) (holding that an
ISP that has editorial control over third-party content on its site is not a developer of the
information and is immune from liability under § 230); Blumenthal v. Drudge, 992 F. Supp.
44, 55 (D.D.C. 1998) (holding that § 230 gives ISPs immunity for defamatory content posted
by third-party ISPs (American Online in this case) if the other ISP acted as an ICP and was
responsible for the posting); Barrett v. Rosenthal, 146 P.3d 510, 529 (Cal. 2006) (broadening
§ 230 to give ISPs immunity for defamatory content posted by an individual third-party user
rather than an ISP third-party).
239 SOLOVE, supra note 59, at 159.
240 See id.; see also Fritts, supra note 162, at 775 (arguing that "courts have

expanded § 230 beyond what was intended by Congress ...tipping the balance between
protection of reputation and protection of speech").
241 See, e.g., Harvard Law Review Association, Internet Law-Communications

Decency Act-Federal District Court Denies § 230 Immunity to Website that Solicits Illicit
Content-FC v. Accusearch, Inc., No. 06-CV-105, 2007 WL 4356786 (D. Wyo. Sept. 28,
2007), 121 HARV. L. REv. 930, 930 (2008) (arguing that Congress did not intend § 230 to give
HAMLINE LAW REVIEW [Vol. 32:207

Such broad immunity allows free speech on the Internet to be exalted to the
detriment of privacy and reputation, allowing gossip, rumors, and shaming to
run rampant.242 The goal of the CDA to promote free speech and shield ISPs
from publisher liability has been accomplished. 4 3 However, the balance
between protecting an individual's reputation with freedom of speech has
been tipped and is leaving victims with no legal remedy. 24
Justice Lewis, writing for the dissent in Doe v. America Online,
argued that Congress did not intend to "totally exonerate and insulate an ISP
from responsibility where... it is alleged that an ISP has acted as a knowing
distributor., 245 He argued that Congress intended to protect ISPs that choose
to regulate content out of good faith, but Congress did not intend to protect
ISPs that blatantly choose not to regulate content even when they know that
the content is offensive. 246 Likewise, in Barrett v. Rosenthal, the California

ISPs "broad immunity," and doing so frustrates its attempt to "bring this area of the law up to
speed with the modem World Wide Web"); Ottenweller, supra note 214, at 1318-23 (arguing
that Congress's primary purpose in passing the CDA was to promote ISP self-regulation, not
to promote free speech, thus allowing ISPs total immunity); see also Jon M. Garon, Media &
Monopoly in the Information Age: Slowing the Convergence at the Marketplace of Ideas, 17
CARDOZO ARTS & ENT. L.J. 491, 505 (1999) (calling the CDA the result of a "hurried
legislative process, poor drafting, and vague language"); Brandy Jennifer Glad, Determining
What Constitutes Creation or Development of Content Under the Communications Decency
Act, 34 Sw. U. L. REV. 247, 248-49 (2004) (arguing that court interpretations of § 230(c) have
"left plaintiffs without any effective remedy and ISPs with little incentive to screen or block
offensive material").
242 See SOLOVE, supra note 59, at 159; see also Walter Pincus, The Internet
Paradox: Libel, Slander and the FirstAmendment in Cyberspace, 2 GREEN BAG 2d 279, 279
(1999) (noting that if the Washington Post published one of his articles "defaming" a person,
it would liable, but if it published the same article online at washingtonpost.com, it would not
be liable under § 230). On the other hand, critic David R. Sheridan indicates that broad
immunity interpretations by courts like Zeran, are not necessarily wrong based on a publisher
versus distributor analysis. Sheridan, supra note 230, at 167. However, he, like the majority of
critics, goes on to note that the language and legislative history of the CDA do not support
broad immunity. Id. He goes on to note that courts have misinterpreted the CDA to include
distributors: "It would be reasonable to surmise that Congress would say 'distributor' in
addition to 'publisher' if it meant 'distributor' in addition to 'publisher."' Id. at 168.
243 See Fritts, supra note 162, at 785.
244 Id. at 784. Blogger Daniel Solove poses a further question about blogger

liability as an ISP. SOLOVE, supra note 59, at 153-54. When an individual asked him to delete
a comment that someone else had posted about her on his blog, he deleted it. Id. The
commenter re-posted it, she complained again, and he deleted it again. Id. In his opinion,
another party might have posted the information, but he "provided him with the forum in
which to do it," and he takes responsibility for it. Yet, if a court went as far to expand the
definition of an ISP to a blogger, Solove notes that he could "thumb [his] nose at Jane Doe"
because courts give ISPs "blanket immunity for comments posted by others." Id. Others agree
that even though courts have not specifically addressed legal claims on "blogs" yet, trends in
case law indicate that courts would likely extend immunity to bloggers. Melissa A. Troiano,
The New Journalism? Why TraditionalDefamation Laws Should Apply to Internet Blogs, 55
AM. U. L. REv. 1447, 1460-61 (2006).
245 Doe v. America Online, Inc., 783 So. 2d 1010, 1019 (Fla. 2001) (Lewis, J.,
dissenting).
246 Id.
20091 THE CDA § 230 DEFENSE

appellate court argued that it was not likely that Congress intended to
promote free speech in encouraging ISPs to regulate offensive content, and it
doubted that any of the Zeran court's feared consequences would come into
effect. 247 Although overturned by the Supreme Court of California, the
appellate court's stance that § 230(c) should not give automatic exoneration
to ISPs did lead the state supreme court to acknowledge that "recognizing
broad immunity for defamatory
248
republications on the Internet has some
troubling consequences."
Many legal scholars make this very argument-that ISPs will not 2 49
face liability until Congress revises the Communications Decency Act.
Some argue that § 230(c) should be revised to hold ISPs liable when "(1)
they are notified of harassing content on their web-sites, and (2) they refuse
or delay in taking the offensive conduct down. 25 ° Others agree that § 230(c)
should be revised to give immunity from liability "only before the operator
of a website is alerted that something posted there by another violates
somebody's privacy or defames her. 25 l Yet, even those who offer
suggestions for revision fear the effect that notice-based liability might have
on the promotion of free speech on the Internet. 252 Because of these fears,
legal critics, such as Santa Clara University law professor, Eric Goldman,
argue that the harms of "anything-goes" websites are not greater than the
benefits of protecting the large amount of legitimate behavior that occurs
online.253

3. New Directions in Case Law

In the twenty-first century, courts now find themselves in an era


where Internet freedom is well-established, and many legal harms are being
left untreated. 54 Despite the fact that the 1996 CDA has not been revised,
247 Barrett v. Rosenthal, 114 Cal. App. 4th 1379, 1403-05 (Cal. App. 1st Dist.
2004).
248 Barrett v. Rosenthal, 146 P.3d 510, 513 (Cal. 2006).
249 See supra notes 226-238 and accompanying text (discussing demonstrative
cases that indicate that courts are unlikely to break away from Zeran's broad reading of the
CDA § 230 as giving immunity to ISPs).
250 Chaffin, supra note 3, at 813.

25 SOLOVE, supra note 59, at 154; see also Matthew G. Jeweler, The
Communications Decency Act of 1996: Why § 230 is Outdated and Publisher Liability for
Defamation Should be Reinstated Against Internet Service Providers, 8 PGH J. TECH. L. &
POL'Y 3, 20 (2007) (arguing that Congress should completely repeal the CDA and allow
courts to return to a common-law publisher or distributor liability analysis); Ottenweller,
supra note 214, at 1327 (proposing that Congress should add a specific "distributer" 230(c)(3)
subsection that holds ISPs liable if they act as distributers and fall to "remove or restrict
access to or availability of material" that they know or should have reason to know is
offensive).
252 See supra note 251.
253 Hudson, supranote 200, at 20.
254 See supra notes 60-93 and accompanying text (discussing the frequency of
Internet use among teenagers and the ease with which they use technology to harass); see also
240 HAMLINE LAW REVIEW [Vol. 32:207

two recent cases indicate that courts may be ready to re-think Zeran's ISP
"blanket immunity." 255 In Chicago Lawyers' Comm. v. Craigslist,a federal
court of appeals found that an ISP was not liable for discriminatory housing
advertisements posted by third parties.2 56 However, the court made some
important re-interpretations of § 230(c): "Subsection (c)(1) does not mention
'immunity' or any synonym . . . . [A]s a whole [§ 230(c)] cannot be
understood as a general prohibition of civil liability for web-site operators
and other online content hosts. 25 7 In addition, the court noted that § 230(c)
could allow for ISP liability if an ISP played a more direct "causal" role in
the creation of the information.258
Likewise, in Fair Housing Council v. Roommates.com, the court
held that § 230(c) does not provide blanket immunity to ISPs: "This grant of
immunity applies only if the interactive computer service provider is not also
an 'information content provider.', 259 The definition of an information
content provider ("ICP") is "someone who is 'responsible, in whole or in
part, for the creation or development of the offending content., 260 This
means that a website operator is an ISP (and not liable under § 230) if it is
not involved in the creation of material, but it becomes an ICP (and liable
under § 230) if it is even partly responsible in the creation of the material. 26'
In this case, the court found that the ISP had become an ICP and could not
enjoy immunity under the CDA § 230 because: (1) Roommates.com created
the profile questions and choice of answers and designed registration around
them;262 (2) subscribers had to provide personal information according to

supra note 156 (giving examples of incidents of online sexual harassment where victims did
not file legal claims).
255 Hudson, supra note 200, at 19.
256 Chicago Lawyers' Comm. for Civil Rights Under Law v. Craigslist, Inc., 519
F.3d 666, 668 (7th Cir. 2008). Third parties posted advertisements, listing "No Minorities"
and "No Children," and a human rights group filed suit, alleging a violation of the Fair
Housing Act. Id. The court did note that newspapers and other publishers would be held liable
for such postings. Id. The court also noted that other laws, such as copyright infringement, do
hold ISPs liable for third-party actions. Id. at 670.
257 Id. at 669.
258 Id. at 671. The court noted that "causation" in a statute, such as the Fair

Housing Act, "must refer to causing a particular statement to be made, or perhaps the
discriminatory content of a statement. Chicago Lawyers' Comm., 519 F.3d at 671. In this case,
the ISP did not cause the discriminatory statements because it did not "induce anyone to post
any particular listing or express a preference for discrimination." Id. In addition, the court
found that the plaintiffs had many other easily targetable defendants, including the landlords
and owners who posted the advertisements. Id. at 672.
259 Fair Housing Council v. Roommates.com, L.L.C., 521 F.3d 1157, 1162 (9th

Cir. 2008).
260 Id. The court cites to § 230(f)(3), which has been interpreted by other courts as
a section designed to apply to other users of entities who are the Internet content developers.
See also 47 U.S.C. § 230(f).
261 Roommates.com, 521 F.3d at 1163.
262 Id. at 1164. In addition to basic information (name, address, e-mail),

Roommates.com required users to disclose sex, sexual orientation, and parental status and to
answer a preference about those descriptions in another person. Id. at 1161.
20091 THE CDA § 230 DEFENSE

Roommates.com's "pre-populated answers" in order to use the website, so


Roommates.com was in part responsible for the offensive profiles; 263 and (3)
Roommates created a search system that allows users to search "based on the
preferences and personal characteristics that Roommate itself forces
subscribers to disclose. 264 When an ISP creates an online system that
encourages or provides the venue for offensive activity to occur, then it is
liable for any legal claims brought against it.265 Legal scholars argue that
these cases might be a turning point in court interpretation of § 230(c). 266
In addition, it is not unheard of for ISPs to be held liable for the
actions of a third party. 267 In the landmark case, Metro-Goldwyn-Mayer
Studios, Inc. v. Grokster, Ltd., the Supreme Court held that ISPs can be
found contributorily liable for another party's copyright infringements.268
The ISPs involved in that case hosted websites that allowed users to share
files, including copyrighted music and movies. 269 The Court reasoned that
when an ISP "distributes a device with the object of promoting its use to
infringe copyright, as shown by clear expression or other affirmative steps
taken to foster infringement . . . [it] is liable for the resulting acts of
infringement by third parties.' 270 The question has been raised whether
courts should apply the same sort of liability to other civil claims, such as

263 Id. at 1166-67.


264 Id. at 1167. Note that the CDA does not give Roommates.com automatic
immunity, but liability based on each of these issues is determined by the district court on
remand. Id. at 1164. Note also that the court held that Roommates is not liable for any
additional material posted by third-party users in the "Additional Comments" section.
Roommates.corn, 521 F.3d at 1174.
265 Id. at 1175. The court noted that Congress did not intend for § 230 to give ISPs
broad immunity: "[R]ather, it sought to encourage interactive computer services that provide
users neutral tools to post content online to police that content without fear that through their
'good samaritan . . . screening of offensive material,' they would become liable for every
single message posted by third parties on their website." Id.
266 See Hudson, supra note 200, at 19 (noting that these two federal appeals
decisions, Craigslistand Roomates.com, "may signal a change in how courts will interpret the
measure."); see also Whitney Information Network, Inc. v. Xcentric Ventures, L.L.C., 199 F.
App'x 738, 744 (1 lth Cir. 2006) (demonstrating a lesser willingness to interpret § 230 broadly
as evidenced by its finding that the defendant ISP, rather than the plaintiff, should bear the
burden of proving that it is not "partially responsible" for the offensive content). Critics argue
that courts need to move toward the type of reinterpretation that holds ISPs liable when they
have become a distributing agent, akin to a third-party ICP. See, e.g., Glad, supra note 241, at
260 (arguing that if an ISP "is responsible for the creation or development of content," then
courts should view it as an "information content provider"-i.e., equal to a third-party
developer and liable under § 230); Horowitz, supra note 212, at 15 (clarifying that
"information service providers" (ISPs) are protected from liability under § 230, while
"information content providers" are not).
267 See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913
(2005) (holding the ISP liable for a third-party's copyright infringements).
268 Id. at 937.
269 Id. at 919-20.
270 Id. at 936-37.
HAMLINE LAW REVIEW [Vol. 32:207

defamation, discrimination, and sexual harassment.27' If publishers and


distributors can be held liable for other people's and entities'
272 crimes in print,
then can they be held liable for the same crimes online?

I. ANALYSIS

This comment argues that publishers and distributors can be held


liable for online crimes committed by others, particularly sexual
harassment. 273 The fight against sexual harassment in workplace and school
environments has made great progress as Congress has provided legal
redress for the harm, and courts have held employers and school districts
liable. 274 However, teenagers that face sexual harassment in online
environments need a similar type of legal redress.275 When teenagers harass
one another on the Internet, and harassers, parents, and schools cannot be
held liable, this harm goes largely unanswered.27 6 The few victims who have
tried to hold ISPs liable for allowing sexually offensive comments and
images to be posted were unsuccessful due to the CDA § 230 defense.277
However, in enacting the defense, Congress did not intend to provide blanket
immunity to ISPs. 278 Although the language of the statute is somewhat
ambiguous, the case law interpreting § 230 so broadly is in error in light of
the legislative purpose and history of the statute. 279 Recent case law has
correctly reinterpreted § 230 with a more narrow scope. 280 ISPs should face
liability for online sexual harassment claims if they in any way contribute to

271 See generally Eisner, supra note 61.


272 See Hudson, supra note 200, at 20 (pondering the reasoning as to why print
liability and online liability is treated differently).
273 See infra notes 274-435 and accompany text (arguing that internet service
providers should face liability for online sexual harassment).
274 See supra notes 10-11, 33-52 and accompanying text (outlining how courts

interpret Title VII and Title IX as providing legal redress for sexual harassment victims and as
requiring schools and employers to face liability in some instances).
275 See supra notes 94-151 and accompanying text (outlining the dangers of online

sexual harassment and the unique injuries that teenage victims suffer as a result).
276 See supra notes 152-200 and accompanying text (discussing the anonymity and
off-campus issues that make harassers, parents, and schools subpar defendants).
277 See supra notes 13, 155-157 and accompanying text (outlining the common-
law defenses that plaintiffs have tried to use).
278 See infra notes 320-367 and accompanying text (discussing the ambiguity of
§ 230 of the CDA and how legislative history indicates that giving ISPs broad immunity under
the statute is an unreasonable interpretation).
279 See infra notes 318-370 and accompanying text (discussing the ambiguity of
§ 230 and the historical evidence indicating that the legislature did not intend to give ISPs
broad immunity).
280 See supra notes 254-272 (discussing Craigslistand Roomnates.com); see also
infra notes 386-406 and accompanying text (arguing that this case law is a step in the right
direction for applying a more narrow interpretation of § 230 that imposes ISP liability when
an ISP acts as an ICP).
2009] THE CDA § 230 DEFENSE

the development of or knowingly fail to remove the harassing material.2 81


Like school administrators and employers control their respective
environments, ISPs control the online environment and have the ability to
editorially prevent or remedy the harassing material.282 In order to combat
the online sexual harassment occurring among teenagers, Congress should
(1) enact a statute that is similar to Title VII and Title IX and (2) clarify the
current ambiguities in § 230 so that ISPs are held liable as ICPs (information
content providers)
283
when they create or contribute to an online hostile
environment.

A. Legal Redressfor Online Sexual Harassment

Similarly to when courts find that sexual harassment in the


workplace or school has created a hostile environment, sexual harassment
online also occurs as the result of a hostile environment.284 The online
environment might be intangible, but in the twenty-first century, cyberspace
285
is a real place where teenagers meet, communicate, work, and learn.
Because schools regularly require teenagers to be online for education and
learning, teenagers are spending as much time in the online environment as
they are in more tangible environments, such as school or work.286 Like
tangible environments where people have a right to work, learn, and socialize
without being sexually harassed, online environments should afford people
the same right.287
Although there is no statutory redress for online sexual harassment
under Title VII and Title IX, when an online environment becomes "hostile"
as a result of sexually offensive comments, posts, or images, victims should
be able to seek legal redress against the host of the online environment-the

281 See infra notes 416419 and accompanying text (proposing legislative reform
that would cure § 230's ambiguity).
282 See infra notes 284-319 and accompanying text (arguing that online sexual
harassment is analogous to workplace and school sexual harassment, and ISPs should be held
liable for hostile online environments just like employers and schools are held liable for
hostile workplace and school environments).
283 See infra notes 407-435 and accompanying text (outlining proposals for (1) an
online sexual harassment statute and (2) a revised § 230 that expressly places liability on ISPs
that act as ICPs).
284 See supra notes 33-52 and accompanying text (discussing employer and school
liability for sexual harassment in the workplace and in schools when a hostile environment has
been created); see also supra notes 58-67 and accompanying text (discussing hostile
environments that are created in online forums).
285 See supra notes 132-138 and accompanying text (discussing the increased
amounts of time that teenagers are required to spend online).
286 See supra notes 132-138 and accompanying text (discussing the amount of
time that teenagers spend online).
287 See supra notes 33-52 and accompanying text (noting that Title VII and Title
IX give people the right to be in workplace and school environments that are hostile-free).
HAMLINE LAW REVIEW [Vol. 32:207

ISP. 288 Employers and school districts can both be held liable for housing
hostile environments and not implementing policies to protect their
employees and students from sexual harassment.2 89 Likewise, ISPs should be
held liable when they house hostile environments online and fail to
implement policies and practices to protect their teenage users who are being
sexually harassed at increasing rates. 290 When sexual harassment occurs in
workplace/school environments, those that house the environments are liable
for failing to remedy or prevent sexual harassment when they knew or should
have known that it was occurring. 29 1 Employers and schools are held to this
kind of standard because they have control over what occurs in the
environment they host.292 Likewise, ISPs should be held liable for sexual
harassment when it occurs in their online environment because they also
have control over what occurs in the environment they host.293 ISPs have the
ability to control who enters their environment2 94 and what occurs within
their environment.29 5 In workplaces and schools, employers and
administrators are required to implement and enforce sound sexual
harassment policies in order to eliminate hostile environments.2 96 ISPs
should not be exempt from such standards and should not be exempt from
liability for sexual harassment claims when they fail to implement such
standards.2 97
It is unlikely that sexual harassment victims would be successful
pursing legal redress against other parties-harassers, parents, or schools-

288 See supra notes 58-67 and accompanying text (discussing the ways in which
online environments become hostile); see also supra notes 33-52 and accompanying text
(noting that courts have interpreted Title VII and Title IX as imposing employer and school
liability in some circumstances).
289 See supra notes 58-67 and accompanying text (discussing employer and school
liability in sexual harassment cases).
290 See supra notes 94-98 and accompanying text (discussing the increased
frequency at which teenagers are sexually harassed).
291 See supra notes 33-52 and accompanying text (discussing employer and school
liability when a "hostile environment" is created at work or school and the employer or school
fails to act).
292 See supra notes 33-52 and accompanying text (discussing employer and school
liability when a "hostile environment" is created and the employer or school fails to act).
293 See supra notes 190-199 and accompanying text (discussing ISPs' ability to
control who accesses their websites and the ways in which their websites are used).
294 See supra notes 194-195 and accompanying text (noting that ISPs have the
ability to impose age limits on user access).
295 See supra notes 196-200 and accompanying text (noting that ISPs have the
ability to remove content, but many refuse to do so).
296 See supra note 48 and accompanying text (outlining cases where school
districts had to implement sexual harassment policies); see also supra notes 49-52 (discussing
employer and school administrators' responsibilities in safeguarding against hostile
environments).
297 See supra notes 285-296 and accompanying text (discussing the reasons that
ISPs are like employers and schools and why ISPs should, therefore, face the same type of
liability for sexual harassment).
2009] THE CDA § 230 DEFENSE

because harassers and parents often remain anonymous, 298 and school
districts are not responsible for online activity that occurs off-campus.2 99 The
anonymity of Internet interaction is a prominent feature that is unlikely to
change.3 °° Therefore, many harassers and parents will remain unidentified.3 °'
Likewise, school districts are not likely to be found liable for students'
Internet activity that occurs off-campus because then they may be held liable
for a range of other off-campus activities that they simply cannot control.30 2
Liability for the creation and/or allowance of a hostile environment should
fall on the patty that hosts the hostile environment.30 3 In the case of online
sexual harassment, it is the ISP, not parents or school districts, which hosts
the hostile environment. 3° Unlike parents and school districts, ISPs have the
necessary control to eliminate online environments by implementing stricter
user policies and ensuring that offensive material is immediately removed.30 5
It is within the control of the ISP to implement preventative measures, and it
is a simple remedy for the ISP to remove the offending content.3 °6
Furthermore, failing to impose ISP liability for hostile environments is an
inadequate resolution because it assumes that market forces will provide
incentive for voluntary remediation of unprotected speech.30 7 But with the

298 See supra notes 160-170 and accompanying text (discussing deficiencies in
harasser and parent liability).
299 See supra notes 171-185 and accompanying text (discussing deficiencies in
school liability).
300 See supra notes 160-170 and accompanying text (noting that a harasser's
anonymity is a drawback in both harasser and parent liability).
301 See supra notes 160-170 (explaining that a harasser's anonymity is a
drawback).
302 See supra notes 171-185 and accompanying text (noting that school attorneys
have advised clients not to discipline students for online behaviors because schools do not
want to face liability for other off-campus activities).
303 See supra notes 33-52 and accompanying text (explaining that employers and
schools are liable for the creation of hostile environments because they control and,
essentially, "host" the workplace and school environments).
304 See supra notes 190-200 and accompanying text (outlining the ways in which
ISPs control who accesses their websites and what kind of material is posted on their
websites).
305 See supra notes 190-200 and accompanying text (outlining the ways in which
ISPs control who accesses their websites and the kind of material that is posted).
306 See supra notes 190-200 and accompanying text (discussing ISPs' editorial
control over the online environments they host). It is likely even easier for ISPs to control
harassing online behavior than it is for schools or employers to control harassing in-person
behavior because ISPs can restrict user-access and postings. See supra notes 190-200 and
accompanying text. It is certainly easier for ISPs to simply remove content than for parents
and/or schools to monitor teen behavior at any number of various sites. See supra notes 190-
200 and accompanying text.
307 See supra notes 208-213 and accompanying text (discussing the "Good
Samaritan" exception to ISP liability that allows ISPs to self-regulate without facing liability).
Congress intended to encourage ISPs to self-regulate voluntarily, but the ambiguous nature of
§ 230 has led to broad ISP immunity and a disincentive for any sort of self-regulation. See
infra notes 320-385 and accompanying text (discussing the ambiguous nature of § 230 and the
legislative history that indicates that broad ISP immunity is unreasonable).
246 HAMLINE LAW REVIEW [Vol. 32:207

increase of online sexual harassment in the last ten years, it is clear that this
incentive is not powerful enough to remedy the harm.3 °8
Online environments are admittedly different from school
environments, since student compliance with mandatory attendance policies
is a matter of state law. However, student use of the Internet and, therefore,
student presence in online environments, is increasingly becoming part of
required course curricula.30 9 In addition, ISPs may be distinguishable from
employers and school administrators in that they are simply providing a
commercial service. 310 However, ISPs are quite simply in the best position to
remove the harm. 311 Neither schools nor parents have any editorial control
over sexually harassing material that is posted online, nor can they
reasonably monitor teen behavior at any number of sites, accessed from
various computers. 1 2 An ISP should be expected to monitor its own domain
and to take measures to prevent and remedy the posting of unprotected
speech.3 13 With these considerations in mind, it is the ISPs who should be
held liable for online sexual harassment
314
that occurs as a result of the hostile
environments that they allow.
In addition, because ISPs face liability in other civil matters,
including copyright infringement, there seems to be no reason that they
should not face liability in sexual harassment claims.3 15 In Grokster, the
Supreme Court allowed an ISP to be held liable when a third-party harmed
individuals by infringing on their copyrights. 316 Even though the third-party
actually committed the copyright infringements, the ISP was liable because it
created a website that would allow and promote the copyright

308 See supra note 98 and accompanying text (noting that teenage online sexual
harassment increased by 50% from 2000 to 2005 alone).
309 See supra notes 132-138 and accompanying text (discussing the requirements
of Internet use in education). Even though online education is a school requirement, much of
this education occurs off-campus, and access points of online sexual harassment are difficult
to prove. See supra notes 171-185 and accompanying text (noting that schools are only liable
for online sexual harassment that occurs on-campus). ISPs are in the best position to remedy
the harm of online sexual harassment because, unlike schools, they can control the online
environment. See supra notes 190-200, 293-297 and accompanying text (discussing editorial
control of ISPs in online environments).
310 See supra notes 162, 187-188 and accompanying text (discussing the definition
of an ISP and its various functions).
311 See supra notes 160-200 and accompanying text (explaining why harassers,
parents, and schools are subpar defendants for online sexual harassment claims).
312 See supra notes 160-200 and accompanying text; see also supra notes 190-199
and accompanying text (outlining ISP editorial control).
3 See supra notes 368-385 and accompanying text (noting that sexually harassing
speech is not protected speech).
314 See supra notes 284-313 and accompanying text (discussing the ways in which
online sexual harassment is analogous to workplace and school sexual harassment, leading to
the conclusion that ISPs should face liability like employers and schools).
315 See supra notes 268-272 and accompanying text (outlining the Grokster case
and ISP liability for copyright infringement).
316 See supra notes 268-272 and accompanying text (outlining the Grokster case).
2009] THE CDA § 230 DEFENSE

infringement. 317 Likewise, even though other entities actually conduct the
sexually harassing activity, an ISP should be held liable when it creates an
online environment that allows and promotes the crime.318 If ISPs can be
held liable for copyright infringement, which causes monetary harm to the
victim, then they should certainly be held liable for sexual harassment, which
causes severe emotional and hysical harm to the victim and harasser as well
as long-term harm to society. ?

B. CDA § 230 Reinterpreted: ISP Broad Immunity Unreasonable

1. Two Possible Interpretations

The single greatest roadblock to ISP liability for online sexual


harassment is courts' misinterpretation of CDA § 230 as giving ISPs broad
immunity for online legal claims. 320 The ambiguous language in § 230 has
caused courts to disagree about the meaning of the section and has resulted in
the majority of courts developing an unreasonable interpretation that allows
ISPs to enjoy broad immunity. 32' This interpretation is not reasonable in light
of legislative intent to protect children and families from offensive online
communications.322
Subsection (c)(1) shifts liability away from ISPs to ICPs
(information content providers), and further removes ISPs from liability
when those ICPs post information that is "obscene, lewd, lascivious, filthy,
excessively violent, harassing, or otherwise objectionable. 32 3 Subsection
(c)(2) lays out liability exceptions for providers and users that choose to self-
regulate.324
Although subsection (f) provides a definition for ICPs, the language
"information content provider" is ambiguous because neither the definition
provided in (f)(3) nor the context of (c)(1) clearly indicates (1) when a
primary provider or user of an interactive computer service becomes an
information content provider (and thus liable) or (2) when another entity or
user of an interactive computer service becomes an information content

317 See supra notes 268-272 and accompanying text (outlining the Grokstercase).
318 See infra notes 416-419 and accompanying text (proposing legislative reform
that will explicitly impose this liability).
3 9 See supra notes 131-151 and accompanying text (outlining the various harms
suffered by victims, harassers, and society).
320 See supra notes 224-253 and accompanying text (discussing how courts have
interpreted and applied the CDA).
321 See supra note 241 and accompanying text (discussing critics' beliefs that the
CDA was hurried, poorly drafted, and left plaintiffs without any legal remedy against ISPs).
322 See supra notes 201-213 and accompanying text (discussing Congress's intent
to regulate inappropriate Internet communications and to protect children and families).
323 See supra note 209 and accompanying text (providing the full text of
§ 230(c)(1)).
324 See supra note 210 and accompanying text (providing the full text of
§ 230(c)(2)).
HAMLINE LA W REVIEW [Vol. 32:207

provider (and thus liable). 325 This clarification is vital to the statute because
without it there is no clear rule delineating when an ISP should be held liable
for online legal offenses and when it should enjoy immunity.326 Two
interpretations are possible: (1) that ISPs never act as information content
providers, and they are therefore never liable because subsection (f) does not
apply to them, or (2) that ISPs do act as information content providers when
they fit the subsection (f) definition and are "responsible, in whole or in part,
for the creation or development of information provided through the Internet
or any other interactive computer service. 327
Courts have chosen to go with the former interpretation-that ISPs
never act as ICPs and thus enjoy broad immunity under the statute.12 ' A
correct interpretation of the statute as a whole, reading subsection (c)(1) in
conjunction with subsection (f), allows for the possibility that an ISP could
be held liable as an information content provider under the statute.329
However, courts tend to forego this analysis and jump directly to subsection
2, thus reading subsection 2 as an isolated provision that provides immunity
for ISPs, without considering that ISPs could also be ICPs. 330 Once Zeran set
the precedent for this interpretation, other courts were quick to follow, giving
ISPs broad immunity from legal claims. 33 1 However, the Zeran court erred in
its interpretation because (c)(1) needs to be read in conjunction with (f)in
order to allow for a complete statutory interpretation. Furthermore, due to the
ambiguity in the language, it is appropriate to look to the legislative history,
which suggests that (c)(1) and (f) were intended to be read together, making
3 32
ISPs liable when they act as ICPs.

325 See supra note 211 and accompanying text (providing the full text of
§ 230(f)(3)).
326 See also supra notes 224-272 and accompanying text (indicating that there is
disagreement between followers of the broad immunity established in Zeran and the new case
law's narrow immunity interpretation).
327 See supra note 211 and accompanying text (providing the full text of
§ 230(f)(3)).
328 See supra notes 224-253 and accompanying text (discussing the CDA in
effect).
329 See supra note 209 and accompanying text (providing the full text of
§ 230(c)(1)); see also supra note 211 and accompanying text (providing the full text of
§ 230(f)(3)).
330 See supra notes 224-253 and accompanying text. The Zeran court, for
example, automatically determined that because the ISP was not a "publisher," it did not face
liability under subsection 2. See supra notes 225-231. The court did not consider the
possibility that a provider of an interactive computer service could be treated as an
information content provider if it fit the definition of subsection (). Id.
331 See supra notes 232-238 and accompanying text (outlining the cases that have
consistently followed the Zeran interpretation of § 230).
332 See supra note 209 and accompanying text (providing the full text of
§ 230(c)(1)); see also supra note 211 and accompanying text (providing the full text of
§ 230(f)(3)).
2009] THE CDA § 230 DEFENSE

2. Legislative History ClarifiesAmbiguity in § 230

The Zeran interpretation is contrary to Congress's true intent, as


evidenced by the legislative history.333 Congress passed § 230 of the CDA to
promote Internet activity and protect ISPs that choose to self-regulate in
good faith.334 In passing the CDA, Congress never intended to give broad
immunity to ISPs from all online legal claims, especially in situations
involving children.335 When Senator James Exon introduced the CDA to
Congress, he wrote that his intention was to protect children and families
from "inappropriate communications" online. 336 Senator Exon was
specifically concerned about child pornography and pedophilia
solicitations.33 7 However, his concerns (that children need to be protected in
online environments and that inappropriate communications exist in online
environments) more broadly apply to the issue of online sexual harassment
among teenagers.338 The interpretation of § 230 as found in Zeran does not
align with a statute that is expressly intended to protect children from
offensive online speech, considering the fact that the statute has been
interpreted to protect ISPs, even when teenagers are the victims of online
sexual harassment.339
In addition, in § 230(b) Congress expressly noted that two of the
policies it intended to promote were the development of "blocking and
filtering technologies" that would "restrict . . . children's access to

333 See supra notes 201-213 and accompanying text (outlining Congress's
intention in enacting § 230); supra notes 225-231 and accompanying text (outlining Zeran's
interpretation of § 230). Note that due to the ambiguous nature of the statutory language, a
discussion of legislative history is appropriate.
334 See supra notes 201-213 and accompanying text (discussing Congress's
intentions in passing § 230 of the CDA).
335 See supra notes 249-253 and accompanying text (positing the various
arguments made by legal scholars and dissenting judges who oppose broad immunity under
§ 230).
336 See supra notes 201-203 and accompanying text (discussing Senator Exon's
intentions in introducing the CDA).
337 See supra notes 201-203 and accompanying text (discussing Senator Exon's
intentions in introducing the CDA); see also supra notes 94-151 and accompanying text
(outlining the dangers and harms of online sexual harassment).
338 See supra notes 201-203 and accompanying text (outlining Senator Exon's
concerns about protecting children); see also supra notes 53-200 (discussing the ways in
which children are not currently being protected online when they are sexually harassed and
how they have no legal remedy). Teenage victims of online sexual harassment need to be
protected from lifelong harms that affect their performance in school, in careers, and in future
relationships. See supra notes 131-151 and accompanying text. When ISPs are immune from
liability, teenagers are left with no protection and no legal redress from online sexual
harassment. See supra notes 152-200 and accompanying text (discussing the effectual lack of
legal redress for teenage victims).
339 See supra notes 225-231 and accompanying text (outlining Zeran's
interpretation and application of broad immunity to ISPs); see also supra notes 201-213 and
accompanying text (outlining Congress's intent); supra notes 131-200 and accompanying text
(outlining the harms suffered by teenage victims who have no legal redress against ISPs).
250 HAMLINE LAW REVIEW [Vol. 32:207

objectionable or inappropriate online material" and the enforcement of


criminal laws in order to "deter and punish trafficking in obscenity, stalking,
and harassment by means of a computer. '3 4 Like Senator Exon, Congress
expressly recognized that "objectionable" and "inappropriate material" is a
danger in online environments and that children need to be protected. 34'
Although Congress envisioned that parents would be the ones empowered to
use the blocking and filtering technologies, ISP cooperation would likely be
required to develop and utilize such blocking and filtering technologies.342
Congress expressly acknowledged that harassing activities occur in online
environments and that such activities need to be deterred, blocked, and
punished.34 3 This acknowledgment makes it unreasonable to interpret the
statute as giving blanket immunity to an entity that developed or contributed
to the creation of harassing material. 34 When ISPs are immune from liability
the online hostile environments that house sexual harassment remain
undeterred, unblocked, and unpunished.34 5
Although Congress intended to grant immunity to "the publisher" of
"information provided by another information content provider," 346 § 230
does not list "distributors" as immune from liability. 347 In Zeran, the court
argued against distributor liability because even though Congress wrote
"publisher," it meant to include "distributor., 348 Therefore, courts have
continually surpassed a "publisher" versus "distributor" analysis and broadly
applied § 230(c) to online publishers and distributors alike. 349 However, this
practice seems erroneous because publisher versus distributor liability was a
well-known differentiation at the time the CDA was drafted, and if Congress

340 See supra note 205 (providing the full text of § 230(b)).
341 See supra note 205 (providing the full text of § 230(b)).
342 See supra note 205 (providing the full text of § 230(b)). Congress lists its
objective in policy number four: "[T]o 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." Supra note 205. It is
likely that Congress intended for the "disincentives" to be aimed at ISPs, who Congress
wanted to encourage to participate in the "development and utilization of blocking and
filtering." See supra note 205.
343 See supra note 205 (providing the full text of § 230(b)).
344 See supra note 205 (providing the full text of § 230(b)); supra note 209
(providing the full text of § 230(c)(1)); see also supra notes 201-213 (discussing Congress's
intention to Protect children and families and to punish offensive and harassing behavior).
34 See supra note 205 (providing the text of § 230(b)(5), which states that
Congress wanted to "ensure vigorous enforcement of Federal criminal laws to deter and
punish trafficking in obscenity, stalking, and harassment by means of computer").
346 See supra note 209 (providing the full text of § 230(c)(1)).
347 See supra note 209 (providing the full text of § 230(c)(1)); supra note 211
(providing the full text of § 230(f)).
348 See supra notes 225-231 and accompanying text (quoting the Zeran court on
this point).
349 See supra notes 233-234 (noting that the court in Doe v. America Online
followed Zeran without conducting a separate "publisher" versus "distributor" liability
analysis).
2009] THE CDA § 230 DEFENSE

intended to give distributors immunity, then it would have expressly included


it in the statute. 350 Under distributor liability, an ISP could be viewed as a
distributor if it "deliver[ed] or transmit[ted] material published by a third
party" and if it "knew about the offensive material and took no action to
remove it."' 351 It seems highly unlikely that, in light of Congress's intention
to protect children from inappropriate and offensive online material and to
deter harassing conduct, Congress would intend to provide ISPs with 352
immunity if they know about the material and refuse to remove it.
Congress's intent to protect ISPs that self-regulate in good faith can still be
accomplished without allowing broad immunity to ISPs who choose not to
regulate at all. 353 Those that self-regulate in good faith would not face
liability under distributor liability if they knew about the material and took
action to remove it.354 In addition, they would not face additional liability for
trying to self-regulate material on their own and then failing to remove
certain material if they were not 35 notified
5
of the material and did not have
reason to know about the material.
Even if courts do not hold ISPs liable when they act as
"distributors," courts should hold ISPs liable if they act as information
content providers.35 6 To interpret the statute otherwise is an unreasonable
reading of the language in light of legislative intent to deter and punish
offensive online communication.357 A "publisher" is not liable for "any
information provided by another information content provider," but if a

350 See supra notes 239-253 and accompanying text (noting arguments made by
some of the critics on this point).
351 See supra note 216 and accompanying text (differentiating "primary
publishers" from "distributors").
352 See supra notes 201-213 and accompanying text (discussing Congress's
intentions in passing § 230 of the CDA); see also supra note 205 and accompanying text
(explicitly outlining Congress's policies).
353 See supra note 209 and accompanying text (providing the full text of
§ 230(c)(1)). The language of subsection (c) explicitly provides for a "Good Samaritan" self-
regulation exception.
354 Compare supra note 209 (providing the full text of § 230(c)(1)) with supra
note 216 (noting the distributor application that is possible in § 230, without disturbing the
good faith self-regulation exception). The "Good Samaritan" exception protecting voluntary
self-regulation is a good policy that should remain in place and is not defeated by a narrow
interpretation of ISP liability.
355 Compare supra note 209 (providing the full text of § 230(c)(1)) with supra
note 216 (noting the distributor application that is possible in § 230, without disturbing the
good faith self-regulation exception). Essentially, this interpretation continues to allow
immunity to ISPs who did not know about offensive material and did not remove it. On the
other hand, those ISPs who did know about the offensive material and failed to remove it
could face liability.
356 See supra note 211 and accompanying text (providing the full text of § 230(f)
and defining an ICP as "any person or entity that is responsible, in whole or in part, for the
creation or development of information").
357 See supra notes 333-345 and accompanying text (explaining why a broad
immunity interpretation of § 230 is unreasonable, and a narrow interpretation is the reasonable
reading according to legislative intent),
HAMLINE LAW REVIEW [Vol. 32:207

publisher becomes an ICP, then it is liable for that information. 358 In


Blumenthal v. Drudge, the court was willing to view an ISP as an ICP when
the case involved one ISP versus another ISP. 359 Because the second ISP was
responsible for posting the defamatory content on the primary ISP's website,
the court viewed the second ISP as an ICP. 360 However, § 230 does not
indicate that the ICP who is "responsible, in whole or in part" has to be an
entity apart from the primary ISP. 36 1 A primary webhost or ISP can just as
easily be viewed as an ICP and be held responsible for the material as
another person or ISP can be.362 Moreover, an ISP is likely to function as an
ICP in various circumstances, such as when an ISP makes registration
contingent on pre-populated questions and answers, requires users to disclose
certain information, or encourages or provides the venue for
communication.36 3 Sections 230(c) and (f) should be read together in order to
induce a reasonable reading of § 230 in its entirety. 364 According to
subsection (c), an ISP should not face liability if the offensive information is
provided by another ICP. 3 65 However, according to subsection (f), an ICP
can be "any person or entity" that is responsible for the offensive material.366
Therefore, if an ISP is in any way responsible for the creation or
development of the hostile environment that houses the sexual harassment
activity, § 230 of the CDA should
367
be read as making the ISP liable for the
online sexual harassment claim.

358 See supra note 209 (providing the full text of § 230(c)(1)); supra note 211
(providing full text of § 230(0).
59 See supra note 238 and accompanying text. The Blumenthal court held that an
ISP was immune from an online claim when another ISP (acting as an ICP under § 230)
posted the defamatory material. See supra note 211 and accompanying text (noting that an
ICP 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") (emphasis added). It is reasonable to view an ISP as an ICP because the statute
indicates that an "entity" can be viewed as an ICP.
360 See supra note 238 and accompanying text (discussing the Blumenthal case).
361 See supra note 209 (providing the full text of § 230(c)(1)); supra note 211
(providing the full text of § 230(0).
362 See supra note 209 (providing the full text of § 230(c)(1)); supra note 211
(providing the full text of § 230(0).
363 See supra notes 254-264 and accompanying text (discussing the circumstances
of the two new federal appellate cases that reinterpreted the statute in this way).
364 See supra note 209 (providing the full text of § 230(c)(1)); supra note 211
(providing the full text of § 230(0).
365 See supra note 209 (providing the full text of § 230(c)(1)).
366 See supra note 211 (providing the full text of § 230(f)).
367 See supra note 326 and accompanying text (quoting subsections (c) and (f) and
indicating that, because there is nothing in the statute that prevents an ISP from being viewed
as an ICP, it is most reasonable to interpret the statute as imposing liability when an ISP acts
as an ICP); see also infra notes 416-419 and accompanying text (proposing legislative reform
that will make this interpretation explicitly clear).
2009] THE CDA § 230 DEFENSE

3. Free Speech Not Limited by ISP Liability

One of the CDA's general purposes was to promote freedom of


speech online and ISP liability does not limit this objective.368 The Supreme
Court has ruled that offensive speech is never considered to be protected
speech.369 Chaplinsky indicates that the First Amendment does not protect
speech that is lewd, obscene, profane, libelous, or insulting. 370 The types of
offensive speech that accompany online sexual harassment certainly fit one
or more of those descriptions, and, therefore, would not be protected by the
First Amendment, whether the speech appears in print or online.371 Speech
that creates a hostile environment would not be protected online if it caused
the environment (the website, blog, social networking space, etc.) to become
"hostile, intimidating, or offensive" and "unreasonably interfere[d]" with the
teenager's use and/or presence in the online environment.372
Some courts and critics fear that online speech will be threatened if
ISPs are required to remove offensive postings and implement stricter
standards.37 3 One fear is that ISPs will be unreasonably burdened when they
have to determine which type of speech is protected on their sites and which
speech is not protected.374 However, this burden is no greater than the burden
that is placed on employers and schools or on distributors who must make
the same determination. 75 Those who have the ability to control an
environment have the responsibility to ensure that the environment remains
free of hostility and devoid of unprotected, harassing speech.376 The ways in

368 See supra notes 201-213 and accompanying text (discussing the legislative
intention in enacting § 230 of the CDA).
369 See supra notes 124-130 and accompanying text (explaining that offensive
speech that creates a hostile environment is not protected by the First Amendment).
370 See supra note 125 and accompanying text (discussing the Chaplinsky
decision).
371 See also supra notes 127-130 and accompanying text (discussing how the
Supreme Court's Tinker standard would also work to prohibit offensive online speech).
372 See supra note 46 and accompanying text (giving the definition of a "hostile
environment"). Note that in typical sexual harassment claims, "unreasonably interferes"
generally refers to an employee's or a student's "work" in that environment. See supra note
46. However, in online environments, interference should be attributed to a student's use of
and/or presence in the online environment. Like the workplace and school environment, every
individual should enjoy the equal right to use and/or be present in the online environment
when that environment is open to the public.
373 See supra notes 120-123 and accompanying text (outlining critics' concerns
about regulating offensive speech).
374 See supra notes 121-123 and accompanying text (discussing a school
administrator's difficulty in determining what is protected as free speech and what is not).
375 See supra notes 121-130 and accompanying text (discussing several key cases
where schools had to determine the difference between protected and unprotected speech in
order to regulate offensive speech that caused a substantial disruption in the school
environment).
376 See supra notes 33-52 and accompanying text (discussing employer and school
liability for hostile environments that are created in the environments they control); supra
notes 194-199 and accompanying text (discussing the ability of ISPs to control user-access
HAMLINE LAW REVIEW [Vol. 32:207

which schools and employers implement specific policies for the prevention
and elimination of sexual harassment and hostile environments provide
guidance for ISPs on how to regulate speech without infringing on protected
speech.377
Another fear is that ISPs will remove too much content for fear of
litigation, thus chilling free speech. 378 It is unlikely that free speech will be
chilled as long as the "Good Samaritan" exception remains, which allows
ISPs who voluntarily self-regulate to avoid liability. 379 If an ISP is trying to
self-regulate in good faith, then a court will likely be deferential if harm does
occur, similar to the deference provided by courts to schools and employers
who have sound sexual harassment policies in place.38 ° Under a CDA
interpretation that provides for ISP liability, an ISP cannot be held liable for
voluntarily self-regulating offensive content and then, in that endeavor,
inadvertently failing to remove content. 38 1 An ISP can only be held liable
when it is responsible, in whole or in part, for the offensive content and then
fails to remove that content.382 ISP liability does not chill protected speech,
but rather it provides an incentive to eliminate unprotected speech.383 Far too
many ISPs do not regulate at all, despite the "Good Samaritan" exception.
As long as ISPs remain protected by the "Good Samaritan" exception, ISPs
will not be encouraged to over-regulate for fear of litigation, but rather they

and postings in their online environments); see also supra notes 292-297 and accompanying
text (arguing that like employers and schools, ISPs should be held responsible for online
environments that they have the ability to control).
377 See supra notes 48-52 and accompanying text (outlining instances in which
workplaces and schools face liability for sexual harassment and the requirements for
implementation of specific sexual harassment policies).
378 See supra note 231 and accompanying text (noting Zeran's concern that ISPs
would feel forced to remove content without evaluating whether it was protected speech).
379 See supra note 209 (providing the full text of § 230(c), the "Good Samaritan"
exception).
380 See supra notes 48-49 and accompanying text (outlining cases in which courts
specifically looked at whether the employers and schools had implemented and enforced
sexual harassment policies).
381 See supra note 209 (providing the full text of § 230(c), the "Good Samaritan"
exception); see also supra notes 353-355 and accompanying text (arguing that ISPs who self-
regulate in good faith will not be held liable even if § 230 is interpreted as imposing liability
when ISPs acts as ICPs).
382 See supra note 209 (providing the full text of § 230(c), the "Good Samaritan"
exception).
383 See supra note 231 and accompanying text (outlining Zeran's concern that free
speech would be chilled by ISP liability). Under Zeran's approach-broad immunity to
ISPs-SPs have no incentive to regulate at all.
384 See supra notes 233-234 and accompanying text (discussing a case in which an
ISP was notified about offensive photographs of a child but refused to remove the material);
see also supra note 244 and accompanying text (noting the perception that § 230 is an
automatic defense that does not require ISPs to remove offensive content even when they
know that it exists in the environment they host).
2009] THE CDA § 230 DEFENSE

will be encouraged to self-regulate and eliminate sexual harassment that


occurs in the online environments for which they are responsible. 385

4. New Directions in Case Law for ISP Liability

The two recent federal appellate court cases, Craigslist and


Roommates.com, indicate that case law may be moving in a new direction by
viewing ISPs as ICPs and holding them liable for online claims if they are
found to be in any way responsible for the creation or development of the
material. 386 The first important movement toward ISP liability was an
express acknowledgement in both cases that § 230 does not give website
operators or ISPs absolute immunity from legal claims. 387 In viewing ISPs as
not automatically immune from liability, the courts moved away from
Zeran's broad immunity interpretation and imposed a narrow immunity
interpretation that is more consistent with legislative intent. 388 Moving away
from Zeran and viewing ISPs as open to liability under § 230 is the first step
toward holding ISPs accountable for failing to eliminate online hostile
environments. 389 Before an ISP can be found liable, courts have to interpret §
230 as imposing liability on ISPs (as the courts in Craigslist and
Roomates.com did).390 The second important movement toward ISP liability
was the courts' reading of § 230(c) in conjunction with § 230(f). 391 This
reading led to a determination that if an ISP is "responsible, in whole or in
part, for the creation or development of the offending content," then it is
liable for that content.392 When subsections (c) and (f) were read more

385 See supra note 209 (providing the full text of § 230(c), the "Good Samaritan"
exception); supra notes 194-199 and notes 292-297 (discussing the ways in which ISPs have
the ability to control the environments that they host and arguing that they should be held
liable when they allow these environments to become hostile).
386 See supra notes 254-272 and accompanying text (outlining the two recent
appellate court decisions).
387 See supra notes 254-272 and accompanying text (explaining that the two courts
acknowledged that § 230 does not give ISPs automatic immunity from liability).
388 See supra notes 225-231 and accompanying text (discussing Zeran's broad
immunity interpretation of § 230).
389 See supra notes 152-200 and accompanying text (noting that teenage victims of

online sexual harassment currently have no effectual legal redress for their harm).
390 See supra notes 320-367 and accompanying text (discussing the vagueness of
§ 230 and the need to move away from a broad immunity interpretation that fails to impose
any liability on ISPs and toward a narrower interpretation that succeeds in imposing liability
on ISPs in certain circumstances).
391 See supra notes 254-272 and accompanying text (discussing the willingness of
both courts to view ISPs as ICPs if the ISP played a direct "causal" role or was directly
responsible for the offensive material).
392 See supra note 260 and accompanying text (quoting the Roommates.com court
in its reading of § 230(c)(1) in conjunction with § 230(0).
HAMLINE LAW REVIEW [Vol. 32:207

narrowly in light of one another, the courts moved away from Zeran's 393
broad
immunity and found that ISPs should face liability if they act as ICPs.
ff other courts were to follow Craigslist's and Roommates.com's
narrow reading of § 230, rather than Zeran's broad reading, then online
sexual harassment claimants would have a much better chance of having
their case heard in court. 394 For example, like Roommates.corn where the ISP
was viewed as an ICP, social networking sites such as MySpace and
Facebook could also be viewed as ICPs. 395 These social network sites
provide users with some preset answers to profile questions, such as
relationship status, sexual orientation, body type, ethnicity, religion, children,
and "here for"/"looking for," etc.396 Preset answers to these particular
questions could allow a teenager to be targeted for sexual harassment.3 97
Furthermore, in more invasive harassment cases, these preset answers could
be used by impersonators to create false profiles of another person and
include answers to questions that would be knowingly offensive to the
victim. 398 Because the ISPs of these sites create the pre-set answers, they
could be held liable as ICPs for sexual harassment. 399 However, these sites
could also be differentiated from the ISP in Roommates.com because both
MySpace and Facebook allow users to voluntarily post information about
themselves in "About Me" categories. 4°° Therefore, if the sexual harassment
occurs 1in these self-created categories, then ISPs would not be found to be
40
ICPs.

393 See supra notes 254-272 and accompanying text (discussing the courts'
interpretation and application of § 230 in Roommates.com and Craigslist).
394 See supra note 13 and accompanying text (outlining cases that all were
dismissed at the summary judgment stage because of the CDA § 230 defense).
395 See supra notes 58-62 and accompanying text (discussing the ways in which
social networking sites become the forums that house hostile environments).
396 See supra note 195 and accompanying text (discussing MySpace features); see
also supra notes 259-266 and accompanying text (discussing Roommates.com features).
397 See supra notes 68-93 and accompanying text (outlining the forms in which
sexual harassment often takes shape online).
398 See supra notes 68-93 and accompanying text (discussing the forms of online
sexual harassment); see also supra 89-93 and accompanying text (outlining instances in which
teenagers have been the victims of profile impersonators).
399 See supra notes 254-266 and accompanying text (outlining how
Roommates.com held that pre-set answers indicated that the ISP was responsible for the
creation of the material, while in Craigslist the absence of pre-set answers indicated that the
ISP was not responsible for the creation of the material). Note that both Roommates.com and
Craigslist could be limited to their own facts. Nothing ensures that courts will break away
from the Zeran broad immunity view and hold social networking sites liable for information
that is voluntarily posted, without pre-set answers.
400 See supra notes 254-266 and accompanying text (discussing Roommates.corn
and Craigslist).
401 See supra notes 254-258 and accompanying text (discussing how Craigslistdid
not hold the ISP responsible for the offensive material, where there were no pre-set categories
and users were free to post comments about listings on their own).
2009] THE CDA § 230 DEFENSE

Craiglist and Roommates.com offer hope to sexual harassment


claimants who want to seek legal redress against ISPs. 40 2 Under Craigslist
and Roommates.corn, courts would hold an ISP liable if they viewed the ISP
as creating or developing an online hostile environment when it knew that
sexual harassment was occurring and it allowed the harassment to
continue. 4°3 However, a specific standard is yet to be created that clearly
indicates when an ISP remains immune from liability and when it becomes
an ICP that is "responsible, in whole or in part" for the offensive content. 4°4
Because the majority of courts have followed Zeran and automatically
applied broad immunity to ISPs without going through an ICP analysis, few
courts have analyzed circumstances in which an ISP moves from being
immune as an ISP to liable as an ICP. 40 5 These two cases are positive steps in
the right direction for helping online sexual harassment victims seek legal
redress against ISPs, but further legislative
4 6
reform is needed in order to
ensure that victims receive adequate relief. 0

C. CongressionalAction Needed

1. Statutory Remedy for Online Sexual Harassment

Congressional enactment of statutory relief for online sexual


harassment is needed to give victims an adequate legal remedy for their

402 See supra notes 152-200 and accompanying text (discussing the lack of legal
redress for online sexual harassment victims).
403 See supra notes 254-266 and accompanying text (discussing Roommates.com
and Craigslist).
404 See supra notes 254-266 and accompanying text (discussing Roommates.com
and Craigslistand indicating that neither court expressed a specific standard for ISP liability
under § 230).
405 See supra notes 225-238 and accompanying text (discussing Zeran and the
subsequent cases that followed). If courts follow Craigslistand Roomates.com, it is difficult to
predict the circumstances in which they would find an ISP to be acting as an ICP who is
responsible for the "creation or development" of the offensive content. See supra note 211 and
accompanying text (providing the full text of § 230(f)). Even if courts do follow an ICP
standard of liability, it is questionable whether they will view ISPs as responsible, in whole or
in part, for the creation or development of information in the following most common sexual
harassment cases: a harasser posts sexually offensive comments on a victim's profile page; a
harasser creates a false sexually offensive profile page of a victim; a victim receives numerous
sexually harassing messages in chat rooms and via e-mail; or a harasser posts personal
information about a victim on a sex-orientated website. See supra notes 68-93 and
accompanying text (detailing some of these common online sexual harassment occurrences).
If courts viewed an ISP like an employer or school, they would hold that an ISP is a
creator or developer if it failed to implement specific sexual harassment policies and failed to
eliminate sexual harassment that it knew or should have known existed. However, courts
would not hold an ISP liable if they viewed the ISP as not creating or developing an online
hostile environment when it did not contribute directly to the offensive material.
406 See supra note 405 and infra notes 407-417 and accompanying text (discussing
further legislative reform).
258 HAMLINE LAW REVIEW [Vol. 32:207

7
harms . 4 Victims of online sexual harassment have sought legal redress
under common-law theories, but these remedies have been largely
unsuccessful. 4 8 Avenues of legal redress, such as defamation, negligence, or
fraud, do not specifically speak to the unique harms suffered by sexual
harassment victims. 4°9 A sexual harassment remedy gives victims (1) the
right to be in the environment; (2) the right to be in that environment without
being sexually harassed; and (3) acknowledgement that sex-based
discrimination, intimidation, and offensive remarks, advancements, and
images will not be tolerated. 4 10 Common-law theories do not provide the
same type of redress in relation to the specifically unique sexual violations
that occur in the act of sexual harassment.41' It is perhaps because common-
law theories are subpar remedies for sexual harassment that many teenage
victims have not filed lawsuits for harms.41 2 A statute similar to Title VII and
Title IX would affirm teenagers' right to be in online environments, and it
would afford them the necessary protection against sexual harassment.4 13
Title VII and Title IX do not explicitly give victims the right to be in
workplace and school environments and the right to be protected from
"sexual harassment," but common law has interpreted the sex-based
language of Title VII and Title IX to afford such protection. 44144 Likewise, a'

similar statute, stating that no person "on the basis of sex" shall be
discriminated against in an online environment, would protect teenagers
from online sexual harassment.41 5

407 See infra notes 408-435 and accompanying text (discussing the creation of a
statute that specifically addresses online sexual harassment and the revision of § 230 in order
to impose ISP liability).
408 See supra note 13 and accompanying text (outlining common-law theory
cases).
409 See also supra notes 13, 156-157 and accompanying text (outlining reasons
that common-law theories are subpar).
410 See supra notes 33-52 and accompanying text (outlining Tile VII and Title IX
relief).
411 See supra notes 13, 156-157 and accompanying text (discussing common-law

theories of relief).
412 See supra notes 13, 156-157 and accompanying text (discussing the absence of
teenage online sexual harassment lawsuits).
413 See supra notes 33-52 and accompanying text (discussing sexual harassment
movement and Title VII and Title IX court applications).
414 See supra notes 33-52 and accompanying text (discussing the ways in which
courts have applied Title VII and Title IX in sexual harassment cases).
415 See supra note 12 and accompanying text (discussing the ways in which Title
IX's legal redress for sexual harassment in schools was based largely on Title VII's legal
redress for sexual harassment in workplaces; therefore, a similar statute that provides legal
redress for sexual harassment online should be enacted based on the two current sexual
harassment statutes). If legislative change reflected a statute that protected online users from
discrimination, based on "race, color, religion, sex, or national origin," then online sexual
harassment would become legally redressable.
2009] THE CDA § 230 DEFENSE

2. Legislative Reform is Needed to Cure the Ambiguity in § 230

At the very least, further legislative reform for § 230 is needed in


order to ensure that online sexual harassment claims receive the adequate
legal redress that they deserve.416 Section 230 should be revised in order to
clarify notice-based liability and to specify that publishers are liable as
information content providers if they are in any way responsible for the
offensive material.417 Changes should reflect the following (shown in italics):

(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, unless
that provider or user acts as an information content
provider.

(3) Information content providerliability


A provider or user of an interactive computer service
becomes an information content provider and has no
immunity from legal claims if that person or entity:
i. contributesto or creates the writing orposting of the
offending information;
ii. knows or should have known that the offending
information is present;
iii. fails to remove the offending information after being
notified of its existence;
iv. promotes the writing or posting of offending
information; and/or
v. promotes a hostile environment in which the writing
orposting of offending information is likely to occur.
A third-party user of an interactive computer service
becomes an information content provider if that person or
entity:
i. contributesto or creates the writing orposting of the
offending information.

(f) Definitions
(3) Information content provider

416 See supra notes 152-200 and accompanying text (discussing the lack of legal
redress for online sexual harassment).
417 See supra notes 320-367 and accompanying text (discussing the ambiguous
nature of § 230).
260 HAMLINE LAW REVIEW [Vol. 32:207

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. An
information content provider can be a provider or user of an
interactive computer service or a third-party user of an
interactive computer service.
Such changes in the statutory language would ensure that ISPs no
longer have broad immunity under § 230 and that the ISP would be held
liable for creating or contributing to an online hostile environment in which
sexual harassment occurs.4t 8 Revised § 230(c)(1) provides a disclaimer that
an ISP will be held liable if it acts as an ICP, thus eliminating any question
about complete immunity. Revising § 230(f)(3) and adding § 230(c)(3)
clarifies that there are two types of ICPs-(1) providers or users of
interactive computer services (termed ISPs throughout this comment) and (2)
third-party users of interactive computer services. This first part of
§ 230(c)(3) further clarifies the circumstances in which an ISP will be held
liable as an ICP. Applying these standards to an online sexual harassment
claim, an ISP would be held liable as an ICP if it actually helped write or
post the material (like the ISP in Roommates.com); if it knew or should have
known that the material was posted and then failed to remove the material
(notice-based liability); or if it promoted the actual writing or posting of the
material or promoted a hostile environment where the writing or posting of
the material was likely to occur (promoting or allowing an online hostile
environment).4 19

3. Practical Implications of § 230 Reform and ISP Liability

Legislative reform would have positive effects for everyone


involved. a2 ° Online sexual harassment claimants would be able to seek legal
redress from ISPs for their harms suffered.4 2' Victims' claims would no
longer go unheard or be dismissed as a result of § 230.422 Furthermore, ISPs
would be encouraged to implement and enforce specific sexual harassment

418 See supra notes 225-238, 320-367 and accompanying text (discussing the ways
in which ambiguity in § 230 has led courts to allow ISPs to enjoy broad immunity from legal
claims).
419 See supra notes 225-238, 320-367 and accompanying text (highlighting the
ways in which this revised version of § 230 clarifies the original version of § 230); see also
supra notes 259-266 and accompanying text (discussing Roomates.com); supra notes 58-67
and accompanying text (discussing hostile environments that are created in online forums).
420 See supra notes 421-435 and accompanying text (discussing the positive
effects that would occur as a result of legislative reform).
421 See supra notes 152-200 and accompanying text (noting that victims of online
sexual harassment currently have no legal redress).
422 See supra notes 152-200 and accompanying text.
2009] THE CDA § 230 DEFENSE

policies and safety regulations. 23 This is an extremely plausible reality


because ISPs do have the ability to control the online environments that they
host and create.4 24 For example, social networking sites often require
members to be above a certain age (such as 13), but this regulation is not
strictly enforced or verified.425 Popular social networking sites, such as
MySpace and Facebook, would be more apt to follow the lead of social
networking sites, such as Whyville, which requires children to provide a
parent's email address and verified signature before registration.426 Whyville
also requires children to pass a chat test and to become licensed before the
children can use the site.427 Other social networking sites would have
incentive to implement similar safety strategies and to monitor sexually
offensive language more carefully.428 Third, social networking sites and
websites alike would more quickly respond to complaints and remove
offensive postings. 429 Because the on-going nature and permanence of online
comments is part of the reason that online sexual harassment is so damaging
to teenagers, promoting a speedy removal of such posts would be a great
relief to victims. 430 Finally, ISPs would benefit from having specific § 230
431
liability standards in place and knowing exactly what is expected of them.
While implementing the proposed § 230 revisions may lead to some
concerns, the benefits outweigh the burdens. Statutory reform might lead to
more legal claims at first, but ISPs would eventually benefit from having
safer and more positive online environments.432 In addition, some online
speech might be chilled, but it is better to prevent and remedy online sexual433
harassment than to allow unprotected and harmful speech to run rampant.
If the same type of harassing speech that is occurring online were to occur at

423 See supra notes 190-192 and accompanying text (noting ISPs' inadequate
attempts to implement adequate safeguards on its online environments).
424 See supra notes 193- 200, 291-297 and accompanying text (discussing ISPs'
ability to control the online environments which they host).
425 See supra note 195 and accompanying text (discussing the common age limit).
426 See supra note 194 and accompanying text (describing Whyville's safety
standards, including its "foul language" blocker and filtering program).
427 See supra note 194 and accompanying text (discussing Whyville's chat test
requirement).
428 See supra notes 307-308 and accompanying text (noting that ISPs currently
have little incentive to self-regulate).
429 See supra notes 196-199, 233-234, 244 and accompanying text (demonstrating
that § 230 currently allows ISPs to ignore complaints).
430 See supra notes 111-115 and accompanying text (discussing the speed with
which harassing material is posted),
431 See supra notes 320-332 and accompanying text (discussing the ambiguous
nature of the § 230 of the CDA, which leaves open the possibility of two interpretations of ISP
liability).
432 See supra notes 94-200 and accompanying text (outlining the dangers of online
sexual harassment and the lack of legal redress).
433 See supra notes 368-385 and accompanying text (discussing the fact that ISP
liability does not limit free speech because offensive and obscene speech is not
constitutionally protected).
262 HAMLINE LAW REVIEW [Vol. 32:207

work or in school, the victims would have legal redress because the speech
would not be protected.4 34 Therefore, the chilling effects on online speech
would be no greater than they are in any other environment where the speech
is not afforded constitutional protection because of its offensive nature.

IV. CONCLUSION

When sexual harassment receives no legal redress, it harms victims,


harassers, and society alike. When sexual harassment becomes normalized
and part of everyday online practices, teenagers think nothing of classmates
being harassed and humiliated on websites and blogs; classmates targeted by
sexually explicit messages and websites; classmates driven to suicide when
the online sexual harassment becomes ongoing. The legislature needs to
provide a statutory remedy for online sexual harassment that is similar to
Title VII and Title IX. Much of teenagers' time is spent on the Internet for
both school and social activities and as their presence online increases, so
does their right to be in online environments that are free of hostility. A
specific statute providing legal redress to victims of online sexual harassment
would help eliminate hostile environments and would have positive effects
for everyone involved.
In addition, § 230 of the CDA needs to be revised in order to hold
ISPs liable for online sexual harassment that occurs in the hostile
environments that they promote and allow. If an ISP in any way acts as an
ICP by creating or developing the offensive material, then it should be held
liable for the legal claims that follow. At the cusp of Internet development in
1996, Congress wanted to promote Internet activity and encourage people to
communicate online. We no longer live in an era where online activity needs
legislative promotion because the Internet has become such an integral part
of teenagers' lives. In addition, Congress never intended to promote
dangerous Internet activity that harms children or to allow ISPs to have
complete immunity from all legal claims. Recent case law from two federal
appeals courts that interpret § 230 as not giving ISPs broad immunity is a
step in the right direction. However, until legislative reform takes place,
courts remain limited in holding ISPs liable as ICPs. Under § 230 it is not
clear whether a provider or user of an interactive computer service can be
treated as an ICP. The majority of courts still view ICPs as only applying to
parties other than the primary ISP. In addition, § 230(f) remains vague in its
description of an ICP as a person or entity that is responsible for the
"creation or development of information." "Creation or development" can be
interpreted in many different ways, and even if courts apply an ICP liability
standard, they may read those words to deny relief to many online sexual

434 See infra notes 368-385.


435 See infra notes 368-385.
2009] THE CDA § 230 DEFENSE 263

harassment claimants. Notice-based liability and specific standards for ICP


liability need to be implemented.
Online sexual harassment among teenagers will best be combated
with legislative reform that (1) enacts a specific online sexual harassment
statute and (2) revises § 230 of the CDA to hold ISPs liable for hostile
environments that they create or promote. Only when these legislative
changes take place will online sexual harassment among teenagers decrease
and will safer, harassment-free online environments be created.