Section 230 of the CDA: Internet Exceptionalism as a Statutory Construct
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Since its enactment in 1996, Section 230 of the Communications Decency Act has become perhaps the most significant statute in the regulation of online content, and one of the most intensely scrutinized. The essay begins with a brief introduction to Section 230. As interpreted and applied by the judiciary, this statute is now conceived as a broad grant of immunity from tort liability.broad not only in terms of those who can claim its protection but also in terms of predicate acts and causes of action to which such immunity extends. Working from this foundation, I then seek to position the courts expansion of Section 230 immunity within the larger debate over Internet governance, suggesting that proponents of expanded immunity are successfully creating what might be characterized as a modified, less demanding form of cyber-libertarian exceptionalism than what Eric Goldman calls, in his essay in this book, the First Wave of Internet Exceptionalism. (one of Internet Utopianism), as articulated in the mid-1990s. The dramatic expansion of Section 230 immunity has in a limited sense effectuated a vision of a community in which norms of relationship, thought and expression are yet to be formed. The tort liability from which Section 230 provides immunity is, together with contract, a primary means by which society defines civil wrongs actionable at law. In the near absence of these external norms of conduct regulating relationships among individuals, the online community is free to create its own norms, its own rules of conduct, or none at all. It is a glimpse of an emergent community existing within, rather than without, the sovereign legal system. Finally, I make the case for preserving broad Section 230 immunity. As an initial matter, many of the reforms offered by commentators are both unnecessary and unwise because the costs of imposing indirect liability on intermediaries are unreasonable in relationship to the harm deterred or remedied by doing so. Moreover, the imposition of liability would undermine the development of Web 2.0 communities as a form of modified exceptionalism that encourages the development of communal norms, efficient centers of collaborative production, and open forums for communication.
