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In February 1996, Congress enacted the controversial Communication Decency Act, which, among other things, attempted to regulate “indecent” adult content online. Civil liberties organizations immediately challenged the problematic provisions of the CDA, and ultimately, in a landmark decision, the U.S. Supreme Court found them to be unconstitutional. Lost in much of the excitement, however, was �230, a provision of the CDA that was never challenged. That section, sometimes referred to as the CDA’s “safe harbor,” effectively immunizes providers of interactive computer services from civil liability in tort with respect to materials disseminated by them but created by others. Five years later, an increasing number of courts are relying on �230 in rejecting plaintiffs’ claims under a variety of fact patterns. Accordingly, for anyone practicing in the area of Internet or e-commerce law, the parameters of the safe harbor provisions are worth exploring. Section 230 provides the following: “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.” As the 4th U.S. Circuit Court of Appeals noted in Zeran v. America Online Inc.129 F.3d 327 (4th Cir. 1997), the effect of this provision is that “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content are barred.” In its most obvious application, �230 protects online service providers such as America Online and others from messages or materials posted on their sites by their users. For instance, in last year’s Schneider v. Amazon.com(No. 46791-3-I, Slip Op., 09/17/01), the Washington Supreme Court upheld the state appellate court’s ruling that online bookseller Amazon Inc. was immune from liability for allegedly defamatory book reviews posted on its site. It doesn’t matter that Amazon allegedly knew, at least for some period of time, about the existence of the reviews and failed to remove them. Interactive Web site operators, the court maintained, simply cannot be found responsible under these facts in light of the broad immunity �230 offers. However, more interesting applications of the safe harbor provisions seem to extend �230 into new realms. One developing area involves the definition of an “interactive computer service” for purposes of the statute. Take a decision handed down in September 2001 from the U.S. District Court for the Southern District of South Dakota. In that case, Patentwizard Inc. v. Kinko’s Inc.(D. SD, No. Civ. 00-4143, 9/27/01), the court held that a copy shop that rents the use of Internet-ready computers deserved protection as a provider of interactive services. As such, the copy shop was immune from claims that it failed to monitor the activity of patrons who allegedly used the computers to defame third parties and commit various other business torts. In another case, a California court of appeals used �230 to hold that state law nuisance claims against a public library were barred. There, the library was sued by the mother of a young library patron who used library computers to download pornographic materials. In Kathleen R. v. City of Livermore, the court determined that �230 pre-empted the claim because a library qualifies as an interactive computer system. ORIGINATOR OR CONDUIT? The definition of an interactive computer system is not the only aspect of the safe harbor provisions that’s evolving. Courts increasingly have been forced to wrestle with the question of when a defendant should be considered the originator of the communication, as opposed to the conduit for its distribution. This is an important distinction, as those who originate the communication do not qualify for protection. For instance, a Web developer in Ohio was found not automatically entitled to summary judgment under the CDA as long as there were allegations that he helped create or author the defamatory statements found on the Web site in question. Sabbato v. Hardy, Court of Appeals of Ohio, Fifth Appellate District, Stark County, (2000). In Blumenthal v. Drudge992 F. Supp. 44 (1998), however, a D.C. district court immunized America Online from libel claims stemming from material authored by noted Internet gossip columnist Matt Drudge. Drudge’s column about presidential assistant Sidney Blumenthal was available on the AOL service as a result of a licensing deal under which AOL paid Drudge a monthly fee for his articles. Blumenthal alleged that AOL should not escape liability in this case because, by paying Drudge, it took on the role of an information content provider. Not so, held the court. Unless there was evidence that AOL had a role in actually creating or developing any of the information in the column, the fact that it paid Drudge was not a basis for it losing its immunity. From these cases, it appears that the line between information provider and the provider of the service is not always easy to find. Ultimately, the level of actual editorial input to the harmful communication in question looks like the key issue, though future courts will undoubtedly help define the rule with more precision. As the use of computer communication technologies continues to grow at unprecedented rates, the likelihood that future communication torts will involve computer communications also increases. Section 230′s safe harbor then will likely play a central role in resolving disputes involving online speech. Edward A. Cavazos is a partner in the Austin office of Andrews & Kurth. He is also an adjunct professor at the University of Texas School of Law where he teaches Internet Business.

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