In Defense of Online Intermediary Immunity: Facilitating Communities of Modified Exceptionalism
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In the ten years since its enactment, Section 230 of the Communications Decency Act of 1996 (CDA) has become perhaps the single most significant statute in the regulation of online content, and one of the most heavily criticized. Many early commentators criticized both Congress, for its apparent inability to craft the more limited statute it intended, and the courts, for interpreting the statute broadly and failing to limit its reach. Later commentators focus more clearly on policy concerns, contending that the failure to impose liability on intermediaries fails to effectuate principles of efficiency and cost avoidance. This article takes the opposing view, in defense of broad Section 230 immunity. It argues that the immunity provisions of Section 230 play a significant role in broader questions of Internet governance. Specifically, Section 230 immunity provides a means of working within the sovereign legal system to effectuate many of the goals, ideals and realities of the Internet exceptionalism, cyberlibertarian movements. By mitigating the imposition of certain external legal norms in the online environment, Section 230 helps to create the initial condition necessary for the development of a modified form exceptionalism. With the impact of external norms diminished, Web 2.0 communities, such as wikis and social networks, have emerged to facilitate a limited market in norms and values, and to provide internal enforcement mechanisms that allow new communal norms to emerge. Section 230 plays a vital role in this process of building heterogeneous communities that encourage collaborative production and communication. Efforts to reform or restrict Section 230 immunity are therefore unnecessary and unwise.
