Internet Liability & Section 230 of the Communications Decency Act

One of the most important pieces of legislation in the entire world right now is 47 U.S.C § 230. In particular:

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 one provision in the United States Code is the reason why all large media platforms host in the United States. Facebook, YouTube, Tumblr, and 4chan operate within the US to enjoy these protections. It clears the web hosts and ISPs of indemnity for the actions of their users.

An easy example is defamation. If someone posts a false and defaming claim on Tumblr about another person, that person has no recourse against Tumblr itself or any of the services it uses to provide access to that defaming claim. In order to bring anyone to trial, they’d have to litigate that poster specifically, and without a court order Tumblr is under no obligation to provide that user’s information.

It goes deeper. Services are not required to store user information at all. If someone posts defaming content on 4chan and somehow that’s brought to court and the court orders the poster’s details surrendered, there’s no requirement what so ever that the provider actually have that information. Although 4chan in particular stores the poster’s IP, the boards move so fast that it’s likely the post will be deleted by the time court orders are made. This is how “Anonymous” is allowed to exist.

Section 230 doesn’t just apply to information posted on websites. Virtual Private Networks (VPNs) are not required to store information either. The most famous example of this is Tor, which, despite its reputation and the trouble it causes, is 100% legal in the United States. If a Tor exit node commits a crime, there is no ability by traditional law enforcement to identify the criminal. The Tor exit node does not (and can not) store identifying information about the traffic it processes. VPNs may choose not to keep logs, though many do just to make life easier for themselves and law enforcement. In many Internet crimes, Tor is the end of the road in an investigation and there is no way to punish the person who runs the exit node. They are not liable.

What makes this particular piece of legislation interesting is that there are no international equivalents that I can find. The Internet defamation specialists at Kelly / Warner note that “the United States also has a unique law governing accountability as it relates to acts of online defamation — Section 230 of the Communications Decency Act.” No matter where you host, be it in the European Union, Russia, Oceania, or anywhere else, there are ways for content providers to be held liable for the content of their users.

What doesn’t it do

Section 230 doesn’t protect you when you host criminal media. This includes child pornography, which (among other legal requirements) you have between 6 and 24 hours to delete after being notified it exists on your website. “Revenge porn” is also increasingly legislated and many states are requiring content providers to take down pornographic images that fall under their definition of revenge porn. Unless you’re an utter cunt, however, these two things aren’t a problem to you: copyrighted content is.

In the United States, copyright holders enjoy more rights over their content than any other country, and the more money you have the more power you have over your property. In general, if you host something that belongs to someone else, they can file a Digital Millennium Copyright Act complaint to try and force you to remove it. Although Fair Use provisions do a lot to make sure criticisms and critiques of the copyrighted content are protected from this, the courtroom is expensive and in general it’s much easier just to delete something than put up a fight.

In Europe and Asia, it’s significantly easier to host copyrighted content than in the United States. Many countries (such as Romania) do not even respect U.S. Copyright holders. This is the double-edged sword of hosting in the US: you’re given much more liberty in hosting user content, but you’re also at elevated risk of copyright holders coming after you and succeeding.

Fair Use is an article all by itself so I’ll stop here. I’m not a legal expert and this isn’t legal advice, I just like knowing my rights. If you think I’ve made an error, email me at [email protected]. I’m always happy to learn something new.