Section 230 CDA Immunity

Introduction

Section 230 of the Communications Decency Act (CDA) , codified at 47 USC § 230, provides broad immunity to interactive computer service providers for liability arising from third-party content and for good faith content moderation decisions. Section 230 has been described as the law that created the modern internet, enabling the development of user-generated content platforms by shielding them from liability for what their users post.

Publisher Immunity Under § 230(c)(1)

Section 230(c)(1) provides 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.” This provision immunizes platforms from claims based on their publication of third-party content, including defamation, invasion of privacy, negligence, and other state-law torts.

An interactive computer service is defined broadly as any information service, system, or access software provider that enables multiple users to access a computer server. This definition covers social media platforms, website hosts, internet service providers, and online marketplaces. An information content provider is the person who creates or develops the content. Section 230 immunity applies only when the platform acts as a publisher of third-party content, not when it creates its own content.

Good Faith Moderation Under § 230(c)(2)

Section 230(c)(2) protects platforms from liability for good faith actions to restrict access to or availability of material that the provider considers obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable. The provision also protects platforms for actions to enable technical measures to restrict access to such material.

The good faith requirement has been interpreted broadly. Courts have held that platforms act in good faith when they remove content consistent with their terms of service and community guidelines. The provision’s protection of “otherwise objectionable” content gives platforms broad discretion in content moderation.

FOSTA-SESTA Exception

The Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA) , enacted in 2018, amended Section 230 to create exceptions for sex trafficking claims. Section 230(e)(5) provides that Section 230 does not apply to federal criminal prosecutions for violation of sex trafficking laws. Section 230(e)(5)(A) provides that Section 230 does not apply to civil claims brought under state sex trafficking laws.

FOSTA-SESTA also created a new federal criminal offense for operating a website with the intent to promote or facilitate prostitution. The legislation was intended to hold platforms accountable for facilitating sex trafficking, but critics argue that it has chilled legitimate speech by causing platforms to over-remove content related to sex work.

Algorithmic Recommendations

Whether Section 230 immunity extends to algorithmic recommendations of third-party content is a contested question. Some courts have held that using algorithms to recommend content is a traditional editorial function protected by Section 230(c)(1). Other courts have held that Section 230 does not immunize platforms for their own content curation decisions, including algorithmically generated recommendations.

The Supreme Court addressed this issue in Twitter v. Taamneh (2023) and Gonzalez v. Google (2023). In Gonzalez, the Court declined to decide the scope of Section 230 immunity for algorithmic recommendations, instead resolving the case on other grounds. The scope of Section 230 protection for algorithmic recommendations remains an open question.

Conclusion

Section 230 provides broad immunity for interactive computer service providers, shielding them from liability for third-party content and protecting good faith content moderation. The FOSTA-SESTA amendments created exceptions for sex trafficking, and the scope of immunity for algorithmic recommendations remains contested. Section 230 continues to be the subject of legislative reform proposals, with debates about the appropriate balance between platform immunity and accountability.