{"id":2751,"date":"2019-10-28T14:29:36","date_gmt":"2019-10-28T14:29:36","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=2751"},"modified":"2019-10-28T14:29:36","modified_gmt":"2019-10-28T14:29:36","slug":"revenge-of-the-exes-the-importance-of-overturning-section-230-of-the-communications-decency-act","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2019\/10\/28\/revenge-of-the-exes-the-importance-of-overturning-section-230-of-the-communications-decency-act\/","title":{"rendered":"Revenge of the Exes: The Importance of Overturning Section 230 of the Communications Decency Act"},"content":{"rendered":"(<\/em>Source<\/em><\/a>)<\/em>\n\n \n\nImagine having someone show up unannounced at your home and work demanding sex from you.\n\nNow imagine it happening over 1,400 times<\/a><\/em>.\n\nFor Matthew Herrick<\/a><\/em>, no imagination is necessary\u2014he lived it. Over the course of a year, an ex-boyfriend used the dating app Grindr to impersonate Herrick and advertise sexual meetups, post crude photos, and share pinpointed locations allowing hundreds of different men to harass Herrick and demand sex from him at his home and work. When Herrick refused, many of the men threatened violence. Herrick filed multiple complaints with Grindr, but it did little to take down the fake profiles or prevent Herrick\u2019s ex-boyfriend from using its service. Fearing his life, Herrick filed a lawsuit against the app.\n\nIn Herrick v. Grindr, LLC<\/em><\/a>, Herrick alleged, among other things, that Grindr was negligent and should be held accountable for ignoring Herrick\u2019s complaints and allowing its defective platform to be used in a way that placed Herrick in danger. However, Grindr claimed that it had immunity under Section 230 of the Communications Decency Act<\/a><\/em> (\u201cSection 230\u201d), specifically the \u201cGood Samaritan\u201d subsection (47 U.S.C. \u00a7 230(c)). The Good Samaritan clause deems that \u201cinteractive computer services\u201d (\u201cICS\u201d) cannot be treated as the publisher or speaker of information posted online by a third party. Originally<\/a><\/em>, Congress enacted the law in 1996 to promote free speech and to prevent online forums from being sued under publisher liability. The general idea behind the statute was that such immunity would incentivize ICSs to remove offensive or harmful content through self-regulation. Congress feared that continuous and never-ending lawsuits against ICSs would prevent the free flow of information and expressive speech online because ICSs would begin to censor all speech or, even worse, shut down completely.\n\nIn anticipating Grindr\u2019s defense, Herrick\u2019s attorney sued under theories unrelated to publication torts. She framed the arguments to hold Grindr liable for allowing the harassment of Herrick to continue for months after it became aware of life-threatening circumstances as opposed to treating Grindr as the publisher of Herrick\u2019s ex-boyfriend\u2019s posts. The Southern District of New York (with the Second Circuit Court of Appeals later affirming<\/a><\/em>) ruled in Grindr\u2019s favor, however, and dismissed Herrick\u2019s case as a matter of law.\n\nWhen Herrick petitioned<\/a><\/em> the Supreme Court for certiorari<\/a><\/em> in August 2019, he asked the Court to answer the following questions: (1) whether Section 230 bars well-pleaded causes of action for non publication torts and (2) whether invocation of Section 230 is an affirmative defense and, therefore, inappropriate for resolution at the motion to dismiss stage? As a response, Grindr waived their right to file a reply, relying solely on the logic put forth in the Second Circuit opinion. The Court denied<\/a><\/em> Herrick\u2019s petition for certiorari on October 7. The denial marks the latest in a string of cases where the Supreme Court has declined to clearly define<\/a><\/em> the scope of Section 230. In taking this approach, the Court continues to allow ICSs\u2014all of them, not just the \u201cGood Samaritans\u201d\u2014to reap the rewards of immunity while innocent people like Herrick fight to survive.\n\nRegardless of the congressional intent behind Section 230, the internet landscape that prevailed at the time of Section 230\u2019s enactment has morphed drastically. In 1996, the internet consisted largely<\/a><\/em> of harmless news sources and bulletins. In fact, common staples such as Google did not even exist in 1996<\/a><\/em>, and the same went for other popular websites like Facebook (2003<\/a><\/em>), YouTube (2005<\/a><\/em>), Reddit (2005<\/a><\/em>), and Twitter (2006<\/a><\/em>). Grindr itself was not conceived until 2009<\/a><\/em> but now hosts over four million users<\/a><\/em> worldwide.\n\nProponents<\/a><\/em> of Section 230 claim that attacks like Herrick\u2019s, while severe, are too rare to warrant opening ICSs up to litigation. But this outlook is too narrow-sighted. As it stands today, Section 230 and case law do little to incentivize ICSs to remove harmful content posted by a third-party. A simple cost-benefit analysis informs us that spending time, energy, and money removing harmful third-party content makes no economic sense if liability is virtually impossible\u2014ICSs that refuse to self-regulate are protected just as much as the Good Samaritans the statute was designed to protect. Such a policy led to the creation of websites like IsAnyoneUp.com<\/a><\/em>\u2014the infamous revenge porn website that allowed users to post nonconsensual nude or explicit photos of another person (often accompanied with their personal information)\u2014created and operated by Hunter Moore<\/a><\/em>. Moore used Section 230 as a shield<\/a><\/em> to avoid removing embarrassing content when requested by a harmed party, reportedly responding to cease-and-desist letters with internet chat-speak like \u201cLOL<\/a><\/em>.\u201d Moore made hundreds of thousands of dollars from IsAnyoneUp before being arrested by the FBI for hacking-related charges, but only after the daughter of a celebrity<\/a><\/em> had her topless photo posted on the site.\n\nWithout question, a Herrick-friendly Supreme Court decision would have caused some disruption within big tech companies. In particular, many companies would have been forced to spend more resources adjudicating legitimate requests for content removal from those paltrily filed. However, most of the fears associated with Section 230 modification or reversal are irrational. Other statutes\u2014for instance, the Digital Millennium Copyright Act<\/a><\/em> (\u201cDMCA\u201d)\u2014allow for individuals to sue ICSs if they fail to take down content that infringes on a copyright. As others note, the DMCA can act as a guide for Section 230 because it follows a notice-and-takedown<\/a><\/em> procedure where complainants sign, under penalty of perjury, a statement claiming a right to the content. Following this, the content is removed, at which point the third-party provider is then given the opportunity to sign, under penalty of perjury, a counterclaim. Then the original complainant has a limitation period in which to file a lawsuit against the third-party in court. Such a system could function similarly in the context of content posted by third-parties. In this framework, ICSs are provided with \u201csafe harbors\u201d that offer them some protection but not virtually absolute immunity. Under this system, companies like Grindr actually have an incentive to remove harmful content at the request of a victim while still retaining some of the original protection afforded by Section 230. One scholar has added<\/a><\/em> to the traditional notice-and-takedown procedure by suggesting all complainants put forth a monetary amount\u2014for instance, $500\u2014that, depending on the system\u2019s structure, can be returned to the complainant upon a showing that the third-party\u2019s content did indeed cause her harm. By doing this, complainants risk a significant sum of money if they file claims lacking merit, which makes the likelihood of false claims decrease.\n\nYet, the simplest and most workable solution to the breadth of Section 230 would be to revert to a version that mimics the common law framework. At common law, content providers could be held liable in defamation suits either as a publisher or a distributor<\/a><\/em>: publishers were those entities that actually communicated the message in controversy while distributors merely acted as a medium for disseminating the true publisher\u2019s content. Traditionally, courts held publishers strictly liable whereas distributors were only liable if they knew of their product\u2019s harmful nature. In a modern take to the common law approach, ICSs like Grindr would be held to a distributor standard unless they themselves actually posted the content. Many have argued that abolishing Section 230 and reverting to the common law standard would encourage ICSs to remain intentionally unaware of all potentially harmful content for fear of being liable as a distributor later on. However, one critic of Section 230<\/a><\/em> notes that in a modified common law approach, courts would hold ICSs to a \u201creasonable ICS\u201d standard to \u201cpreclude liability for those entities which, under the circumstances, were not required to know, nor could reasonably have known, of the defamatory content. This method would still require the plaintiff to meet the burden of proof by establishing, beyond the preponderance of the evidence, that the ICS had sufficient control over and\/or knowledge of the defamatory content.\n\nAt the end of the day, we are all one bad relationship away from a jealousy-induced catastrophe. Despite the internet\u2019s ability to rapidly and incessantly disseminate positive information and ideas, the domain it provides to companies should not prevent those entities from being held liable for the role they play in the damage to someone\u2019s life. While the Supreme Court\u2019s failure to tackle Section 230 head-on remains concerning, the fight to modify or overturn Section 230 will continue. Herrick\u2019s attorney, Carrie Goldberg<\/a><\/em> intends to rectify the injustice of Section 230 immunity by holding Congress accountable and continuing to advocate for Section 230\u2019s victims (Goldberg was, after all, instrumental in the passage of New York\u2019s revenge porn law<\/a><\/em> earlier this year after big tech companies halted the law\u2019s passage in 2018). And soon, with enough noise, Congress and the Supreme Court will have no choice but to listen.\n\nIf you or someone you know has been the victim of cyberbullying (including revenge porn) consider contacting to the Cyber Civil Rights Initiative<\/a><\/em> for support and advice.\n\n \n\n\"thomasThomas Shannan is a J.D. candidate for the Cornell Law School class of 2021. He earned his B.S. in Child Psychology and English Literature from Vanderbilt University in 2017. In addition to writing for The Issue Spotter<\/em>, Thomas serves as an associate for the Capital Punishment and Criminal Defense Trial Clinics, an Honors Fellow for the first-year lawyering program, and the Secretary of the Public Interest Law Union. His interests include internet privacy, juvenile justice, and criminal defense. Outside of law school, Thomas enjoys playing squash with his friends and being ignored by his cat, Ellie.\n\n \n\nSuggested Citation:Thomas Shannan, Revenge of the Exes: The Importance of Overturning Section 230 of the Communications Decency Act<\/em>, Cornell J.L. & Pub. Pol\u2019y, The Issue Spotter, (October, 28, 2019), https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/revenge-of-the-exes-the-importance-of-overturning-section-230-of-the-communications-decency-act\/<\/a>.<\/a>","protected":false},"excerpt":{"rendered":"

(Source)   Imagine having someone show up unannounced at your home and work demanding sex from you. Now imagine it happening over 1,400 times. For Matthew Herrick, no imagination is necessary\u2014he lived it. Over the course of a year, an ex-boyfriend used the dating app Grindr to impersonate Herrick and advertise sexual meetups, post crude…<\/p>\n","protected":false},"author":1,"featured_media":2752,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[14,15,18],"tags":[],"class_list":["post-2751","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-archives","category-authors","category-feature"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2751","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=2751"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2751\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/2752"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=2751"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=2751"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=2751"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}