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The Irony of the Communications Decency Act
As many unfortunate individuals have found, there are limited remedies for individuals who are the subject of unflattering information posted on the Internet. Next month, for the first time, a United States District Court in the Sixth Circuit will have an opportunity to rule on the Communications Decency Act which provides internet service providers immunity from liability for publishing defamatory information. The legislative history of the Communications Decency Act reveals that it originally had a far different purpose.
In 1995, before the first breaths of air were blown into the dot.com bubble, United States Senator James Exon began his crusade against pornography on the Internet. (Cannon, 1996). The problem, he supposed, was the ease of which America's youth could access pornographic material. To prove his point, he asked a friend to assemble and download a collection of readily accessible pornographic photographs from the Internet. Senator Exon kept the material in a "Blue Book" which he kept with him on the Senate floor for the review of any of his curious colleagues. Senator Exon's solution to the problems lying behind the cover of his Blue Book was the Communications Decency Act (CDA). (Cannon, 1996). Through the CDA, Senator Exon sought to extend existing regulations limiting the dissemination of obscene and harassing telephone calls to the Internet. The Senate debate over the CDA began with the following prayer, written by the Senate chaplain:
"Almighty God, Lord of all life, we praise You for the advancements in computerized communications that we enjoy in our time. Sadly, however, there are those who are littering this information superhighway with obscene, indecent, and destructive pornography. Virtual but virtueless reality is projected in the most twisted, sick misuse of sexuality. Violent people with sexual pathology are able to stalk and harass the innocent. Cyber solicitation of teenagers reveals the dark side of online victimization."
In retrospect, the CDA was not the answer to the chaplain's prayer.
While the CDA was passed in the Senate by an 84-16 vote, it met strong resistance in the House where House Speaker Newt Gingrich called the CDA a clear violation of free speech. (Cannon, 1996). Rather than reject the proposed CDA on the merits, the House chose to attach the Cox/Wyden Amendment which was meant to kill the bill in conference. The Cox/Wyden Amendment, proposed by representatives Christopher Cox and Ron Wyden was drafted in response to Stratton Oakmont, Inc. v. Prodigy Services Co. 1995 WL 323710 (N.Y. Sup. Ct. 1995). In Stratton, Prodigy was sued by a brokerage house for defamatory statements made by an unidentified user on a "bulletin board" it hosted. The Court found that a web-service provider, which edits or regulates the content provided by its users, was a "publisher" in a traditional legal sense and was therefore liable for the re-publication of defamatory statements. The Cox/Wyden Amendment overruled the Stratton decision and provides follows:
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.
The CDA, with the Cox-Wyden Amendment, was ultimately passed and signed into law in February of 1996 by President Clinton.
In less than 18 months, the regulatory provisions of the CDA proposed by Senator Exon were declared unconstitutional in Reno, Attorney General Of The United States, et al. v. American Civil Liberties Union et al., 117 S.Ct. 2329 (1997). Courts have since found that the remaining portions of the CDA, specifically the Cox/Wyden Amendment, 47 U.S.C. §230(c)(1), provide web-site hosts and internet services providers with near absolute immunity from liability for publishing content that is provided by third parties. Zeran v. AOL, 129 F.3d 327, 330 (4th Cir. 1997) cert. denied 524 U.S. 937 (1998); Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003); Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009).
Now, just over 15 years after Senator Exon proposed the CDA as a bar against the barbarians of pornography, the CDA is protecting the very people it was likely meant to punish. In 2009, Sarah Jones, a school teacher from Northern Kentucky, initiated litigation against Dirty World, LLC d/b/a Thedirty.com after her name, photograph and the name her high school were posted on thedirty.com with an article which insinuated that she likely has Chlamydia and Gonorrhea. See Sarah Jones v. Dirty World LLC, et a.l, Case No. 2:09-cv-00219-WOB, U.S.D.C E.D. Ky at Covington. Nik Richie, the creator of the site, does not dispute that he posted the article. In fact, the vast majority of the content available at thedirty.com consists of submissions by third-party users of the site which often contain vulgar and unflattering content. Absent the protection afforded by the CDA, there is very little doubt that Dirty World, LLC would be facing liability as a re-publisher. Defendants in the Jones case, however, have argued that the CDA entitles them to absolute immunity. Given precedent from other jurisdictions, Defendants are likely correct.
Thedirty.com is just the beginning. Other sites, such as isanyoneup.com (proceed with caution), do not monitor or restrict content because of nudity and are intensely personal. Many of the photographs on isanyoneup.com constitute revenge porn, or the publication pornographic photographs of ex-lovers. (Hill, 2011). These sites, through social media networks such as Facebook and Twitter, are tailor-made to have the maximum impact on the unwitting subject's social circle. Because the CDA protects these web-site operators from liability for publishing material provided others, the subjects of these posts are often left without a sufficient remedy for the public embarrassment they have had to endure.
Given the recent publicity afforded to Cyber-bullying and the effect that it can have on young people, §230 of the CDA has come under increased scrutiny. Some have suggested that the immunity afforded by the CDA should be limited to cases where the internet service provider has no actual knowledge or control over the content provided. Interestingly, as noted by the Court in Stratton, such a result would be consistent with generally accepted common-law principles applied to distributors rather than publishers. Others have suggested that the CDA be repealed in its entirety. The immunity provided by the CDA may even be eroded by case-law narrowing its scope. Regardless of the outcome, you can be sure that Senator Exon had something else in mind when he proposed the "Communications Decency Act".
Cannon, R. (1996). The Legislative History of Senator Exon's Communications Decency Act: Regulating Barbarians on the Information Superhighway. Federal Communications Law Journal, 49(51).
Hill, K. (2011, July 6). www.forbes.com. Retrieved November 14, 2011, from Forbes: http://www.forbes.com/sites/kashmirhill/2011/07/06/revenge-porn-with-a-facebook-twist/
Thaler, J. (1995, August 1). From the Senate floor: Senator Exon's Blue Book. CMC Magazine, p. 4.
 Prodigy, along with AOL and Compuserve, was one of the largest web-service providers of the early 1990s. It was eventually purchased by SBC Communications/AT&T.
 The present Defendants were not named until 2010.
 Oral argument on Defendants' Motion for Summary Judgment is scheduled for December 9, 2011.