Location-Based Marketing, Regulation of Home-Share Platforms, and Other Developments in Section 230 Immunity
The Business Lawyer 75(1), 1667 (2020).
6 Pages Posted: 30 Dec 2019 Last revised: 7 Dec 2020
Date Written: 2019
Enacted at the beginning of the Internet Revolution, the Communications Decency Act (“CDA”) includes a provision that generally immunizes an “interactive computer service” (“ICS”) from liability based on information provided by third parties. Colloquially known by its section number in Title 47 of the U.S. Code, Section 230 provided a critical shield for the fledgling industry, much like the nineteenth-century abrogation of private property rights that allowed the railroads to expand from coast to coast. It allowed the Internet to grow by limiting claims against ICSs under both federal and state law. Section 230’s immunity has been broadly read by courts to cover virtually all forms of third-party content published by platforms, even if the information is inaccurate, illegal, or intended to deceive.
This survey includes cases involving false location-based advertising, online impersonation, and a variety of other causes of action, most of which were dismissed in favor of the ICS due to the immunity provided by Section 230. However, questions remain about the future efficacy of Section 230 for some companies that have prospered behind Section 230’s shield. Furthermore, cracks in this cornerstone of the Internet are beginning to emerge, due in no small part to a well-meaning 2018 amendment entitled the Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”). The implications for Section 230’s immunity shield, and the business models it allowed to flourish, could prove to be dramatic and the development of the ensuing line of cases and legislation should be on the radar of all business lawyers.
Keywords: Section 230, ISP immunity, cyberlaw, FOSTA, CDA
JEL Classification: K22, K23, K20, K13
Suggested Citation: Suggested Citation