The Chink in the Armor of the Communications Decency Act
The Next Battle of the Short Term Rental War
By Banks Brown Partner, McDermott Will & Emery LLP | December 25, 2016
CDA § 230 is shorthand for Section 230 of the Communications Decency Act, 47 U.S.C. § 230 (2016). It is the law cited by short term rental companies ("STRC"), such as Airbnb, when they argue with city and state governments and in the courts that their businesses are not subject to state and local regulation. It is fair to say that the STRCs are of the opinion that city and state governments are nearly powerless to regulate them in any way whatsoever, absent their consent.
CDA § 230 provides, in pertinent part, 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."
On its face, the power ascribed to CDA § 230 by the STRCs is not readily apparent. What it says is that companies which provide an interactive computer service, such as STRCs , cannot be treated as a publisher or speaker of any information provided by those who use the service. Zeran v. AOL, 129 F.3d 327, 330 (4th Cir. 1997) ("By its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service."). Thus, for example, it can be argued that Craigslist and Facebook, which operate as bulletin boards for their users' content, are protected from lawsuits even if they might facilitate wrongful conduct by allowing its users to post information that is actionable. See Fraley v. Facebook, 830 F. Supp. 2d 785, 801 (N.D. Ca. 2011); Dart v. Craigslist, 665 F. Supp. 2d 961, 965 (N.D. Ill. 2009).
This makes sense. Given the amount of information being posted on Craigslist and Facebook on a daily basis, the burden placed on such companies if they could be sued for every libel (for example) could be enough to drive them out of business, even if they have reasonable measures in place to police the postings voluntarily. See Chicago Lawyers' Comm. for Civil Rights Under the Law, Inc. v. Craigslist, Inc., 461 F. Supp. 2d 681, 696 (N.D. Ill. 2006) ("As the Seventh Circuit already has suggested, 'defamation law would be a good example of [publisher or speaker] liability.'") (citation omitted).
The legislative history of CDA § 230 tells much. A detailed account of it is found in Robert Cannon's The Legislative History of Senator Exon's Communications Decency Act: Regulating Barbarians on the Information Superhighway, Federal Communications Law Journal: Vol. 49: Iss. 1, Art. 3 (1996).
As detailed below, CDA § 230 was an amendment by the House to a Senate bill, the sole purpose of which was to regulate pornography on the internet. The Supreme Court struck down all of the CDA's provisions, except. CDA § 230, which, standing alone, then took on an unintended luminosity.