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Potential Amendments To CDA Section 230 Relating to Immunity Provided To Internet Intermediaries

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By Eric Sinrod on November 26, 2019 9:25 PM

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.

In 1996, Congress enacted Section 230 of the Communications Decency Act (CDA) to provide Internet service intermediaries with general immunity from liability with respect to third-party content posted on their sites. Congress wanted the commercial Internet to flourish, with great benefits to the U.S. economy, and therefore did not want Internet intermediaries to be burdened with the phenomenally costly task of having to monitor and referee third-party content.

Calls for Section 230 Reform

Of course, as we know, the commercial Internet has flourished since 1996 to the advantage of the U.S. economy, and some of the biggest and most valuable U.S. companies are Internet intermediaries that host third-party content. But there have been some complaints about the immunity provided by virtue of Section 230. For example, there have been complaints that some Internet intermediaries should have been and should be more active in monitoring and removing false information posted on their sites that is designed to influence political elections. In the wake of these complaints, there have been suggestions that Section 230 is ripe for potential amendments.

Proposed Principles to Guide Lawmakers

In this climate, along comes a group of 53 academics and 28 institutions (e.g., the American Legislative Exchange Council, the Center for Democracy & Technology, and the Competitive Enterprise Institute) with a recent document titled "Liability for User-Generated Content Online, Principles for Lawmakers ('Principles Document')."

The Principles Document begins by noting that policymakers have expressed concern about both harmful speech and the content of moderation practices of tech companies. It then notes that pursuant to Section 230, Internet intermediaries are not liable for third-party content except with respect to intellectual property, federal criminal prosecutions, communications privacy (the Electronics Communications Privacy Act) and sex trafficking (FOSTA). The Principles Document then states that the signatories value the balance between freely exchanging ideas, fostering innovation and limiting harmful speech. The Principles Document notes that this is "an exceptionally delicate balance," and adds that any reform to Section 230 "poses a substantial risk of failing to address policymakers' concerns and harming the Internet overall." Accordingly, the signatories provide certain principles to "help any policymakers in considering amendments to Section 230."

The seven principles can be found here. Generally, they try to strike a balance between protecting free speech and allowing intermediaries to monitor content. Going forward, we likely will see further discussions on Capital Hill about potential amendments to Section 230. The Principles Document and the principles enunciated within it very well could be part of those discussions.

Eric Sinrod (@EricSinrod on Twitter) is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod's columns, please email him at ejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

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