Congress vs. The Courts: Who is Responsible for the Lack of Internet Accountability and Where Do We Go From Here?

The need for accountability for internet companies has evolved dramatically in recent years[1], but in many ways, the law has stayed the same since the 1990’s.[2] Congress enacted 47 U.S.C. § 230, the Communications Decency Act, in 1996 in an effort to protect internet speech and shield internet companies from lawsuits.[3] In relevant part, the statute says that “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.”[4] This meant that individuals could not bring civil claims against internet companies for any harm that occurred as a result of speech on their platforms.[5] For over two decades, Section 230 has acted as a shield from tort liability for internet companies, essentially barring them from being held accountable for any speech published on their websites.[6] The act provided protection so that internet companies would have the freedom to grow and promote free expression.[7]

While the initial value of this proposal may have outweighed the negative consequences in 1996, the balance has shifted in 2021.[8]  Initially, the act brought positive benefits by promoting a vibrant and competitive internet market, encouraging technology advancements, and removing disincentives for internet companies. [9] However, the market has grown rapidly over the last quarter-century. GPS-tracking smartphones, Google, and Facebook did not exist when Congress passed CDA § 230(c)(1).[10] Today, these internet computer services are a central source of information and communication that are embedded in daily life.[11] Through all this change, Section 230 has protected some of the darkest sides of the internet, including violent videos, revenge porn, and death threats.[12] The standards created to protect internet companies in 1996 are no longer adequate.[13]

As a result, many people have faced serious harm without any option to hold internet companies accountable.[14]In one case, Matthew Herrick brought a claim against Grindr after an ex-boyfriend created a fake account for Herrick and sent hundreds of men to his home expecting dates or sex.[15] The visitors became increasingly aggressive as Herrick’s ex-boyfriend crafted detailed narratives about violent sexual fantasies that Herrick wished to act out.[16] Using Grindr’s geolocation software, hundreds of men showed up at Herrick’s home and work.[17] Some days, as many as 23 visitors would show up.[18] Herrick reported the matter to police, obtained an order of protection, and reported the matter to Grindr 50 times, but Grindr claimed there was nothing it could do to shut down the fake account or stop the harassment.[19]  

As a result, Herrick brought a claim against Grindr[20]. Every step of the way, his case was halted by Section 230.[21] Each court read Section 230 as essentially a bar on any type of claim against Grindr, including products liability.[22]The U.S. District Court in the Southern District of New York relied on the definition of an “interactive computer service” in determining whether Grindr was protected. Section 230(f)(2) defines an interactive computer service as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.” Because it saw no way to avoid defining Grindr as such, the Court ruled against Herrick.[23] The judges appeared to agree with Herrick on the moral argument, but with Grindr on the law.[24] Under Section 230, Grindr was considered an interactive computer service.[25] Therefore, it could not be treated as the publisher or speaker of the messages that drove men to Herrick’s home.[26]

In 2019, Herrick’s attorneys filed a petition for a writ of certiorari with the Supreme Court, but it was denied.[27]However, the issue did seem to catch the attention of Justice Clarence Thomas, who wrote an advisory statement in October 2020, saying it was time for the Supreme Court to take on a case regarding Section 230.[28] He explained that the statute has historically been construed too broadly, grouping “publishers” together with “distributors” and shielding both of them from liability for everything from defamation to product liability claims.[29] Thomas cited Herrick among other examples of why the law has been construed too broadly. The law gave defendants immunity, even in situations that resulted in injustice.[30] He concluded, “[p]aring back the sweeping immunity courts have read into §230 would not necessarily render defendants liable for online misconduct. It simply would give plaintiffs a chance to raise their claims in the first place.”[31]

Whether Justice Thomas’s views are shared by any other members of the Court is yet to be seen, but Congress itself has signaled a willingness to revisit Section 230.[32] Several members, along with President Joe Biden, have spoken out about repealing Section 230 entirely,[33] while others have created plans to revise the statute.[34] On February 5, 2021, Senators Warner, Hirono, and Klobuchar introduced the SAFE TEACH Act to reform Section 230.[35] Most notably their proposal inserts new language into Section 230 that would eliminate the protections from any speech for which a provider has accepted payment.[36] This would mean that internet companies could be liable for language in any ads or paid content. But some have warned that the bill could be more dangerous than it sounds. 

 “Paid content” may include a wide range of speech, as internet companies accept payment in a variety of ways.[37] This could be a dangerous step toward internet regulation according to some, and it could greatly hinder the freedom and growth of internet companies.[38]

The question that lingers is: who is responsible for bringing Section 230 into 2021? Senator Warner believes it is up to Congress to alter the law and create more accountability[39], while Justice Thomas seems to think the courts should analyze the current language more narrowly, while preserving its current structure.[40]

Many people like Mathew Herrick have similar stories and deserve accountability from big tech companies.[41]While a narrower interpretation of the current law may be helpful, Congress appears to be in a better position to rethink Section 230 and make the necessary adjustments to create fairness on the internet.[42]

FOOTNOTES

[1] See Kevin Roose, Goodbye to the Wild Wild Web, N.Y. Times (July 2, 2020),  https://www.nytimes.com/2020/07/02/technology/goodbye-to-the-wild-wild-web.html

[2] See Alina Selyukah, Section 230: A Key Legal Shield for Facebook, Google Is About To Change, npr (Mar. 21, 2018),https://www.npr.org/sections/alltechconsidered/2018/03/21/591622450/section-230-a-key-legal-shield-for-facebook-google-is-about-to-change

[3] Id.

[4] 47 U.S.C. § 230(c)(1) (LexisNexis 2018).

[5] Id.

[6] Selyukah, Supra, note 2.

[7] Id.

[8] See Taylor Hatmaker, The SAFE TECH Act offers Section 230 reform, but the law’s defenders warn of major side effects, Tech Crunch (Feb. 5, 2021), https://techcrunch.com/2021/02/05/safe-tech-act-section-230-warner/

[9] 47 U.S.C. § 230(b)

[10] Herrick v. Grindr, 140 S.Ct. 221 (2d. Cir. 2019), cert. denied, 205 L.Ed.2d 135 (U.S. Oct. 7, 2019).

[11] Id.

[12] Selyukah, supra, note 2.

[13] Id.

[14] Id.

[15] Herrick v. Grindr, LLC, 306 F. Supp. 3d 579 (S.D.N.Y. 2018)

[16] Id.

[17] See Carrie Goldberg, Winning Through Losing, Dec. 18, 2020, https://www.americanbar.org/groups/diversity/women/publications/perspectives/2021/december/winning-through-losing/

[18] Id.

[19] Id.

[20] Id.

[21] Hatmaker, supra, note 8.

[22] Id.

[23] Herrick v. Grindr, LLC, 306 F. Supp. 3d 579 (S.D.N.Y. 2018)

[24] See Matt Stoller, “Rumors Spread on Social Media…”, big (Substack), Sept. 4, 2020.

[25] 47 U.S.C. § 230(f)(2)

[26] 47 U.S.C. § 230(c)

[27] Matthew Herrick v. Petitioner, Supreme Court Docket, No 19-192,  https://www.supremecourt.gov/search.aspx?filename=/docket/DocketFiles/html/Public/19-192.html

[28] See Eugene Volokh, Justice Thomas Writes in Favor of a Narrow Reading of 47 U.S.C. Section 230, The Volokh Conspiracy (Oct. 13, 2020, 11:08 AM) https://reason.com/volokh/2020/10/13/justice-thomas-writes-in-favor-of-a-narrow-reading-of-47-u-s-c-%C2%A7-230/

[29] Id.

[30] Id.

[31] Id.

[32] Supra, note 7.

[33] The Editorial Board, Joe Biden: Former Vice President of the United States, N.Y. Times (Jan. 17, 2020), https://www.nytimes.com/interactive/2020/01/17/opinion/joe-biden-nytimes-interview.html?smid=nytcore-ios-share

[34] Press Release, Mark R. Warner US Senator from the Commonwealth of Virginia, Warner, Hirono, Klobuchar Announce the SAFE TECH ACT To Reform Section 230 (Feb. 5, 2021) (on file with author).

[35] Id.

[36] Id.

[37] Supra, note 7.

[38] Id.

[39] Supra, note 27.

[40] Herrick v. Grindr, LLC, 306 F. Supp. 3d 579 (S.D.N.Y. 2018)

[41] See Grindr, LLC, 306 F. Supp. 3d 579.

[42] Supra, note 27.