In passing the Communications Decency Act, Congress noted the policy of the United States

(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

47 U.S.C. § 230(b).

In particular, Section 230 of the Act was enacted to ensure that providers and users of "interactive computer services" would not be exposed to liability as "publishers" of any information provided by another "information content provider." H.R. Rep. No. 105-775 § I(E).

Section 230 of the Communications Decency Act provides that "[n]o 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." 47 U.S.C. § 230(c)(1).

The Act defines "interactive computer service" (ICS) as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." 47 U.S.C. § 230(f)(2).

"Information content provider" (ICP) is defined as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other" ICS. 47 U.S.C. § 230(f)(3).

Section 230 immunity is not without exception. In particular, the statute states that it "shall not be construed to impair the enforcement" of any Federal criminal statute or "to limit or expand any law pertaining to intellectual property." 47 U.S.C. § 230(e)(1) & (2). Moreover, Section 230 does not impair the enforcement of any consistent State law and does not "limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law." 47 U.S.C. § 230(e)(3) & (4).

The U.S. Court of Appeals for the Fourth Circuit was the first appellate court to address to address the scope of Section 230 immunity, in Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). In that case, the plaintiff sued America Online, Inc. for failing to remove defamatory messages posted by an identified third party, refusing to post retractions of those messages, and failing to screen for similar postings after being made aware of the defamatory nature of the messages.

In affirming the dismissal of the plaintiff's claims, the Fourth Circuit noted that in enacting Section 230 "Congress recognized the threat that tort-based lawsuits post to freedom of speech in the new and burgeoning Internet medium," and intended to "encourage service providers to self-regulate the dissemination of offensive material over their services." Zeran, 129 F.3d at 330-331. The Court specifically rejected Zeran's contention that Section 230 eliminated only publisher liability, leaving the liability of distributors of defamatory material intact, holding that distributor liability was "merely a subset, or species, of publisher liability, and is therefore also foreclosed by § 230." Id.

Though the holding in Zeran is often overstated as providing immunity to an ICS for any claim arising from third-party content, the Fourth Circuit clearly states that Section 230 "precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, 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." Zeran, 129 F.3d at 330.

Courts interpreting Section 230 have generally followed the Fourth Circuit's analysis in Zeran. See, e.g. Green v. America Online, 318 F.3d 465, 470-71 (3d Cir. 2003) (opining that to hold AOL liable for its alleged negligence in failing to properly police its network for content transmitted by its users would treat AOL as the publisher or speaker of that content in violation of Section 230); Batzel v. Smith, 333 F.3d 1018, 1031 n. 18 (9th Cir. 2003)(holding that a web site operator who did no more than select and make minor alterations to an allegedly defamatory email was not considered the content provider); Carafano v. Metrosplash.com Inc., 339 F.3d 1119, 1122 (9th Cir. 2003)(granting Matchmaker.com immunity under the Communications Decency Act where a third party posted information involving false online personal ad listings, in violation of the website's rules and policies); Ben Ezra, Weinstein & Co. v. America Online Inc., 206 F.3d 980, 984-86 (10th Cir. 2000) (holding that AOL was not an ICP with respect to allegedly inaccurate information published on its stock quotation service and thus qualified for Section 230 immunity from negligence and defamation claims).

Most recently, in Doe v. MySpace, 474 F.Supp.2d 843, 848 (W.D. Tex. 2007), a mother of an underage MySpace user brought an action against the website owner and operator after the minor was sexually assaulted by a man she met through the social networking site. The court applied Zeran, analogizing plaintiff's allegations that MySpace knew sexual predators were using the service to communicate with minors and failed to react appropriately with Zeran's claims that AOL failed to act quickly enough to remove defamatory messages. Id. The court interpreted Section 230 immunity broadly, finding that it bars not only defamation claims but also non-defamation claims involving attempts to hold an ICS liable for its publication of third-party content or any harm flowing from the dissemination of that content. Id. at 849. Accordingly, the court held that MySpace was entitled to immunity under the Communications Decency Act. Id.

Most circuits read Section 230(c)(1) to bar civil liability where ICS providers refrain from filtering or censoring the information on their sites. See Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1322 n.3 (11th Cir. 2006); Batzel, 333 F.3d at 1026-27; Green, 318 F.3d at 470- 71; Ben Ezra, 206 F.3d at 985-86; Zeran, 129 F.3d at 330. However, the Seventh Circuit has recently called Zeran's holding into doubt by concluding that the Communications Decency Act is not necessarily inconsistent with state laws that create liability for ICS providers that refrain from filtering or censoring content. See Doe v. GTE Corp., 347 F.3d 655, 660 (7th Cir. 2003). In dicta, the Doe court questioned other courts' reliance on Zeran:

"If this reading [from Zeran, Ben Ezra, Green, and Batzel] is sound, then § 230(c) as a whole makes ISPs indifferent to the content of information they host or transmit: whether they do (§ (c)(2)) or do not (§ (c)(1)) take precautions, there is no liability under either state or federal law. As precautions are costly, not only in direct outlay but also in lost revenue from the filtered customers, ISPs may be expected to take the do-nothing option and enjoy immunity under § 230(c)(1). Yet § 230(c) - which is, recall, part of the "CDA" - bears the title "Protection for 'Good Samaritan' blocking and screening of offensive material", hardly an apt description if its principal effect is to induce ISPs to do nothing about the distribution of indecent and offensive materials via their services. Why should a law designed to eliminate ISPs' liability to the creators of offensive material end up defeating claims by the victims of tortious or criminal conduct?"

Id. Despite this analysis, the court in Doe found that the ISP at issue was not liable to college athletes for customer's use of a service to display images of the athletes who were unknowingly recorded unclothed while in a locker room setting, since the athletes failed to allege any state law or common law doctrine which would have required the ISP to protect third parties who may have been injured by such use. Id. at 662.

The immunity afforded by Section 230 is only applicable where the ICS is not the author or provider of the offending content. 47 U.S.C. § 230(c)(1)(offering immunity only where the information was provided by "another" ICP). In cases addressing this distinction, the critical issue is whether an ICS acted as an ICP with respect to the portion of the statement or publication at issue. Carafano, 339 F.3d at 1125. In other words, if a web site operator passively publishes information provided by others, it is protected by the CDA from liability that might otherwise attach under state or federal law as a result of such publication. However, if the ICS is responsible, in whole or in part, for creating or developing the content, it is considered an ICP and is not entitled to CDA immunity.

In Carafano, the Ninth Circuit applied CDA immunity to information posted by a third party that was not, in any sense, created or developed by the website operator. In fact, the information at issue was actually provided in violation of the website's stated rules and policies. Id.

Last year, a U.S. District Court in Texas followed Carafano in finding that even if the defendant qualified as both an ICS provider and also an ICP in some areas, it was not an ICP with respect to the plaintiff's information because it did not itself create or develop that content. Prickett v. Info USA, Inc., No. 4:05-CV-10, 2006 WL 887431, at *5-6 (E.D. Tex. March 30, 2006). There, the critical information concerning plaintiffs' names, address and telephone number had been provided by a third party and transferred unaltered by defendant, a compiler of proprietary databases, to its customers via web sites.

On the other hand, website operators are not protected by Section 230 if they created the content in question, rather than merely publishing third-party content. See Anthony v. Yahoo! Inc.,421 F.Supp.2d 1257, 1262-63 (N.D. Cal. 2006) (holding that the CDA did not bar fraud and negligent misrepresentation claims against Yahoo based on alleged creation of false user profiles in order to trick new members into joining and to stop current members from leaving); Hy Cite Corp. v. BadBusinessBureau.com, 418 F.Supp.2d 1142, 1149 (D. Ariz. 2005).

Recently, the Ninth Circuit distinguished Carafano by finding that it does not necessarily control where unlawful information was provided by users in direct response to questions and prompts from the operator of the web site. Fair Housing Council of San Fernando Valley v. Roommates.com, Nos. 04-56916, 04-57173, 2007 WL 1412650, at *2-4 (9th cir. Dec. 5, 2006). Thus, Roommates.com was protected where it provided open fields for "additional comments" but lost CDA protection where it provided pull-down menus for users' responses. Id. This holding suggests that where an ICS takes any part in creating content, even where it only makes brief suggestions as to that content, it may lose its Section 230 protection.

The Roommates.com decision appears to fly in the face of Zeran's holding that the exercise of a publisher's traditional editorial functions will not place an ICS outside the scope of Section 230 protection. As a result, the decision has been roundly criticized by commentators. See Ninth Circuit Screws Up 47 USC 230--Fair Housing Council v. Roommates.com.

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