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17 Berkeley Tech. L.J. 401 (2002)
Commuications Decency Act 230

handle is hein.journals/berktech17 and id is 417 raw text is: CYBERLAW: REGULATING CONDUCT ON THE INTERNET
By Paul Ehrlich
The Internet presents a unique set of problems for regulating harmful
speech. Unlike traditional media, the typical arrangement of content dis-
tribution involves multiple users logged in to one of many servers run
by an Internet Service Provider (ISP), or a website run by a similar en-
tity. These users interact with one another with little or no supervision by
the ISP itself. Interactions can take the form of bulletin board postings, e-
mails, business transactions, and chat room discussions, to name a few.
While one would not expect harmful speech to confine itself to tradi-
tional media, certain characteristics of the Internet guarantee the preva-
lence of such speech in cyberspace. These features include ease of access,
ability of any individual to publish, and relative anonymity. Whenever
harmful speech does occur, it necessarily involves use of an ISP's servers
and possibly another's website. Thus, a central question in regulating con-
tent on the Internet is the extent to which ISPs and other interactive com-
puter services should be held liable for the torts and crimes of the indi-
viduals who use their servers.
Congress passed the Communications Decency Act (CDA)' in 1996
to address the myriad problems surrounding the regulation of obscene, il-
legal, or otherwise tortious content found on the Internet. Many of the
CDA's provisions regulating decency have been struck down by the courts
as violations of the First Amendment.2 One of the surviving elements is a
congressional grant of immunity from suit to ISPs and other interactive
computer services for content originating with third parties.3
The text of the statute relies on terms of art from the law of defama-
tion, formally protecting interactive computer services from treatment as
publisher[s] or speaker[s] .' However, while defamation law recognizes a
distinction between liability as a publisher and liability as a distributor,5
© 2002 Berkeley Technology Law Journal & Berkeley Center for Law and Technology.
1. 47 U.S.C. § 223 (Supp. 2001).
2. See Reno v. ACLU, 521 U.S. 844 (1996) (holding portions of the CDA uncon-
stitutional for its overbroad limitations on protected speech).
3. 47 U.S.C. § 230 (Supp. 2001).
4. Id. § 230(c)(1).
5. Publishers are presumed to have more control over material disseminated and
are therefore subject to strict liability. Distributors are subject to liability under a knowl-

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