CDA Section 230

After FOSTA and Hassell v Bird

Eric Goldman
Professor of Law and Co-director of the High Tech Law Institute
Santa Clara University School of Law

Sophia Cope,
Senior Staff Attorney, Electronic Frontier Foundation

Moderator
Bennet Kelley
Internet Law Center
ERIC GOLDMAN
Eric Goldman is a Professor of Law, and
Co-Director of the High Tech Law
Institute, at Santa Clara University
School of Law.
His research and teaching focuses on
Internet, IP and advertising law topics,
and he blogs on these topics at the
Technology & Marketing Law Blog
[http://blog.ericgoldman.org]
Eric testified before the Senate
Commerce Committee and House
Judiciary Committee on SESTA/FOSTA.
In 2011, Eric was named an “IP
Vanguard” by the California State Bar’s @ericgoldman
IP Section.
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SOPHIA COPE
Sophia Cope is a Senior Staff Attorney
on the Electronic Frontier Foundation's
civil liberties team, working on a variety
of free speech and privacy issues. She
has been a civil liberties attorney for
nearly 15 years and has experience in
both litigation and policy advocacy.
She previously worked for the Center
for Democracy & Technology, the
Newspaper Association of America
(now, the News Media Alliance), and the
First Amendment Project.
She is a graduate of Santa Clara
University and University of California,
Hastings College of Law.
@scopesetic

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BENNET KELLEY
Bennet is the founder of the Internet Law Center in Santa
Monica and the host of Cyber Law & Business Report on
WebmasterRadio.fm. His practice focuses on e-
commerce, online marketing, privacy and online
harassment issues.
In 2014, he was named one of the Most Influential
Lawyers in Digital Media and E-Commerce by the Los
Angeles Business Journal. The firm’s Cyber Report blog
was named one of the top internet law blogs and the
firm also was included in the top 21 internet law feeds on
Twitter.
Bennet is Chair of the IP Section’s Technology, Internet
and Privacy Interest Group. He previously was Co-Chair
of the Business Law Section’s Cyberspace Committee @InternetLawCent
where he led the effort to develop a primer on
Cyberspace Law for state policymakers.
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“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“. * Not Exactly (see subsequent slides). The California
SECTION 230, COMMUNICATIONS DECENCY ACT Lawyers Association discourages consumers from
getting legal advice from faux vodka bottles or the Dos
Equis man. 5
THE POLICY BEHIND CDA SECTION 230
• The Congress finds the following: (1)The rapidly
developing array of Internet and other
interactive computer services available to
individual Americans represent an extraordinary
advance in the availability of educational and
informational resources to our citizens.
• (3)The Internet and other interactive computer
services offer a forum for a true diversity of
political discourse, unique opportunities for
cultural development, and myriad avenues for
intellectual activity.
• (b)It is 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;

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GETTING AROUND SECTION 230

Barnes v. Yahoo! 9th Cir. Design Site to Require

Not Interactive Computer 2009): Yahoo liable for Site Marketing Illegal Content
System failure to remove content or Text Claim Federal IP Claim
it promised it would
Publisher Liability remove under Promissory Failure to Warn Federal Criminal
Estoppel. Prosecution

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 “NEUTRAL PUBLIC
FORUM”?
No such
requirement under
CDA 230.

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USMCA
(aka NAFTA 2.0)

Adopt protections for platforms

• No Party shall adopt or maintain measures that
treat a supplier or user of an interactive computer
service as an information content provider in
determining liability for harms related to
information stored, processed, transmitted,
distributed, or made available by the service,
except to the extent the supplier or user has, in
whole or in part, created, or developed the
information.
• No liability for content moderation.

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THE BATTLE OVER BACKPAGE
• 2015: Courts split on whether
Backpage.com could invoke
CDA230 Immunity
• 2016: California arrests Backpage
CEO on pimping charges
• 2017: Senate report finds
Backpage knowingly facilitated
online sex trafficking. Leads to
introduction of Stop Enabling Sex
Traffickers Act (SESTA) and Allow
States and Victims to Fight Online
Sex Trafficking Act (FOSTA).
• 2018: FOSTA signed into law

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Allow States and Victims to
Fight Online Sex Trafficking
Act of 2017 (P.L. 115–164)
• New Section 2421A: Makes it a felony (10
years in prison) to own, manage or operate
an “interactive computer service” with the
intent “to promote or facilitate the
prostitution of another person.”
• Aggravated felony (25 years) if the website
promotes or facilitates the prostitute of five
(5) or more persons or acts in reckless
disregard of the fact that such conduct
contributed to sex trafficking.
• Permits private right of action for victims.
• Amends 18 U.S. Code § 1591 (Child Sex
Trafficking) to add liability for “knowingly
assisting, supporting, or facilitating a
violation.”
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FOSTA’s CDA 230 CARVE OUT
• CDA 230 “was never intended to provide legal
protection to websites that unlawfully promote
and facilitate prostitution and websites that
facilitate traffickers in advertising the sale of
unlawful sex acts with sex trafficking victims.”
• In addition to creating federal criminal liability
for which CDA 230 does not apply, FOSTA
excludes from CDA 230
• Civil claims for child sex trafficking
• State criminal prosecution if it would
constitute child sex trafficking or a violation
of Section 2421A
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FOSTA
EPILOGUE
• 2018: Backpage.com seized and
shut down as part 93-count
indictment stemming – five days
before FOSTA was signed.
• Woodhull Freedom Foundation v.
United States (D.D.C. Sept. 24,
2018) – Constitutional challenge
to FOSTA dismissed on standing
grounds.

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FOSTA FALLOUT
CONCERNS
• CONTENT MODERATION
• FOSTA will lead sites to limit content
moderation to avoid liability
• FOSTA will lead sites to censor content to
avoid any risk of liability
• CONCENTRATION
• FOSTA’s potential liability may lead to
only the biggest sites being able to
operate
• POLICING/CRIME
• FOSTA will make it harder for police to
gain intelligence on sex trafficking
• FOSTA moves sex workers back to pimps
and on the street
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HASSELL v BIRD
(Cal. July 2, 2018)

• Law firm sues client for negative Yelp

review. Obtains default judgment against
client and court orders Yelp to take down
the review as an agent of Defendant Bird.
• Court of Appeals affirms order.
• Supreme Court reverses invoking CDA 230.
• Hassell has filed petition for certiorari.

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WHAT WERE THEY
THINKING???
• Firm currently has a 5-Star Rating
• Risk being labeled by Yelp for questionable
legal threats
• Ethical challenges in responding to client
social media reviews
• If lawsuit gains any attention, only
highlights the negative review (aka “The
Streisand Effect”)

See Social Media Marketing Do’s and Don’ts

and Managing Your Online Reputation
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INTERNET LAW-CHELLA
AMICUS FOR YELP AMICUS FOR YELP (con’t)
• ACLU • Glassdoor, Inc.
• Airbnb • IAC
• Automattic • Internet Association
AMICUS FOR HASSELL
• Avvo • Pinterest
• California Anti-SLAPP • Public Participation Project • Erwin Chemerinsky
Project • Reddit • Valencia Corridor Merchants
• Consumer Technology • Snap Association
Association
• TripAdvisor LLC
• Craigslist
• Twitter
• Electronic Frontier
Foundation • UCLA First Amendment
Clinic
• Facebook
• Xcentric Ventures (aka
• First Amendment Ripoff Report)
Coalition • Yahoo
• First Amendment and
Internet Law Scholars

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 PLURALITY OPINION
Chief Justice Cantil-Sakauye, Justices Chin and
Corrigan
• “The question here is whether a different result should
obtain because plaintiffs made the tactical decision not
to name Yelp as a defendant. Put another way, we must
decide whether plaintiffs’ litigation strategy allows them
to accomplish indirectly what Congress has clearly
forbidden them to achieve directly. We believe the
answer is no….an order that treats an Internet
intermediary ‘as the publisher or speaker of any
information provided by another information content
provider’ nevertheless falls within the parameters of
section 230(c)(1).”
• Removal orders can an impose substantial burdens on an
Internet intermediary
• Section 230 allows these litigation burdens to be
imposed upon the originators of online speech. But the
unique position of Internet intermediaries convinced
Congress to spare republishers of online content, in a
situation such as the one here, from this sort of ongoing
entanglement with the courts.
• Citing Professor Volokh research on fraudulent defamation
take down orders and lawsuits 18
JUSTICE KRUGER’S
CONCURRENCE
• Plaintiff has “drawn Yelp into litigation solely
because of its past decision to allow Bird to post
her reviews. Even if the trial court otherwise had
the power to issue an injunction against Yelp
solely on that basis, the proceedings would be
barred by section 230. I would, however, stop
there; I venture no opinion as to how section 230
might apply to other take-down orders based on
different justifications.”
• “But section 230 does not bar a cause of action
solely because the result might be a court order
requiring the provider, as the publisher of the
posting in question, to take steps to remove it.”

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JUSTICE LIU’s
DISSENT
“No one has burdened Yelp with defending against liability
for potentially defamatory posts. Here, the trial court
ordered Yelp to remove postings that have been already
adjudicated to be defamatory. Hassell sued Bird, not Yelp,
and the litigation did not require Yelp to incur expenses to
defend its editorial judgments or any of its business
practices. The trial court ruled that Bird had defamed
Hassell on Yelp, and it directed Yelp to help effectuate the
remedy. Yelp’s conduct as a speaker or publisher was
never at issue in Hassell’s lawsuit, and the trial court
imposed no liability on Yelp for such conduct. Instead, the
trial court enjoined Yelp as part of the remedy for Bird’s
tortious conduct toward Hassell.”

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 2
1

WHAT NEXT FOR

CDA 230?
WARNING SIGNS
FROM CDA 230’s
AUTHOR
• Senator Ron Wyden: CDA 230 “has been
a success — with one glaring exception. I
never expected that internet CEOs would
fail to understand one simple principle:
that an individual endorsing (or denying)
the extermination of millions of people,
or attacking the victims of horrific crimes
or the parents of murdered children, is
far more indecent than an individual
posting pornography.”
• “Failure by the companies to properly
understand the premise of the law is the
beginning of the end of the protections it
provides. I say this because their failures
are making it increasingly difficult for me
to protect Section 230 in Congress.”
Ron Wyden, The consequences of
indecency, TechCrunch (Aug 23, 2018).
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MARK YOUR
CALENDAR!
• Technology, Internet and Privacy Interest
Group Monthly Calls – the 2nd Wednesday
of every month at Noon.
• Join us for our Brown Bag lunch on Friday
• IP and the Internet Conference returns
2019.
• Follow us @ CLA_IP.

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APPENDIX

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CDA Section 230 Background
• Statutory Language
• How Broad A Shield? A Brief Overview of Section 230 of the Communications
Decency Act, Congressional Research Service (Feb. 21, 2018).
• Electronic Frontier Foundation CDA 230 Page
• No, Section 230 Does Not Require Platforms to Be “Neutral”, Electronic
Frontier Foundation.
• Content Moderation & Removal at Scale, Santa Clara School of Law (Feb. 2,
2018).
• Eric Goldman, The Ten Most Important Section 230 Rulings, Tulane Journal of
Technology & Intellectual Property, Vol. 20 (2017)
• CDA 230 in the Age of Cyber Civil Rights and Terrorism, IP and the Internet
Conference (Sep. 7, 2015).

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Allow States and Victims to Fight Online Sex
Trafficking Act (FOSTA)
• House Judiciary Committee Report on FOSTA.
• Aja Romano, A new law intended to curb sex trafficking threatens the future of the
internet as we know it, Vox (Apr. 18, 2018)
• FOSTA Would Be a Disaster for Online Communities, Electronic Frontier Foundation (Feb.
22, 2018).
• How Congress Censored the Internet, Electronic Frontier Foundation (Mar. 21, 2018).
• Eric Goldman, Sex Trafficking Exceptions to Section 230, Santa Clara Univ. Legal Studies
Research Paper, No. 2017-13 (2017).
• Eric Goldman, Balancing Section 230 and Anti-Sex Trafficking Initiatives, Santa Clara Univ.
Legal Studies Research Paper, No. 2017-17 (2017).
• Eric Goldman on SESTA and CDA 230, Cyber Law & Business Report (Nov. 15, 2017).
• SESTA Backgrounder, Cyber Law & Business Report (Nov. 15, 2017).
• Mike Masnick, Wikipedia Warns That SESTA Could Destroy Wikipedia, TechDirt (Nov. 10,
2017).
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FOSTA Appeals and Fallout
• Alex F. Levy, Constitutional Challenge to FOSTA Dismissed for Lack of
Standing, Technology & Marketing Law Blog (Oct. 8, 2018).
• Mike Masnick, Police Realizing That SESTA/FOSTA Made Their Jobs
Harder; Sex Traffickers Realizing It's Made Their Job Easier, TechDirt
(May 9, 2018).
• Eric Goldman, More Aftermath from the ‘Worst of Both Worlds
FOSTA’, Technology & Marketing Law Blog (Apr. 23, 2018).
• Jessie Sage, The Impact of FOSTA/SESTA on Online Sex Work
Communities, Cyborgology (Apr. 2, 2018).

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Hassell v Bird
• Opinion
• Hassell Petition for Certiorari
• Eric Goldman, The California Supreme Court Didn’t Ruin Section 230
(Today)–Hassell v. Bird, Technology & Marketing Law Blog (July 2,
2018).
• Hassell v. Bird EFF Amicus Brief.
• Dozen Amicus Briefs Oppose the Worst Section 230 Ruling of 2016
(and One Supports It)–Hassell v. Bird, Technology & Marketing Law
Blog (April 20, 2017).

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