Section 230 Immunity and the Case

I write in href="">this month’s CIO Insight about the 9th Circuit’s en banc decision in the case. This important decision tested the limits of immunity for information service providers (in this case, the operator of a website that allows users to post roommate-matching ads) under Section 230 of the 1996 Communications Act.

At issue was whether could be sued under fair housing laws for asking users about their age, sex, sexual orientation, whether they have children and their preferences for these characteristics in a roommate. Eric Goldman has an excellent post on the case at his website:

Writing for the majority, Chief Judge Kozinski held that the service was not entitled to immunity (the merits are yet to be decided) because the site was a “developer” of the potentially-illegal content. In short, Kozinski distinguished free-form text boxes (immunity intact) from drop down menus that offered only limited choices. The drop down menus, the court held, are not immune, because they cross the line between hosting and assisting in the development of the content, and Section 230 applies only to the former.

I’m troubled, as many people are, by the decision and some of its dicta. In particular, Footnote 15 signals increasing judicial resistance to the Section 230 safe harbor. It also falls into the trap of judges assuming they know more about the information economy than they do:

“The dissent stresses the importance of the Internet to modern life and commerce, Dissent at 3476, and we, of course, agree: The Internet is no longer a fragile new means of communication that could easily be smothered in the cradle by overzealous enforcement of laws and regulations applicable to brick-and-mortar businesses. Rather, it has become a dominant—perhaps the preeminent—means through which commerce is conducted. And its vast reach into the lives of millions is exactly why we must be careful not to exceed the scope of the immunity provided by Congres and thus give online businesses an unfair advantage over their realworld counterparts, which must comply with laws of general applicability.”

Kozinski cites nothing to support these comments. But what does it even mean to say that the Internet has become “a dominant…means [can there be more than one dominant mean?] through which commerce is conducted”? Despite double-digit growth for over ten years, e-commerce still only accounts for well under 10% of retail activity. And I can’t even find a measurement for services revenue, which represents. Which is to say, as far as I can determine, “the Internet” is still a fragile new means of communication.

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