Section 230 has never been as broad and powerful as Big Tech made us to believe. In 2016, the DC Circuit of Appeals compared Section 230 to a mousehole, in which Congress could not put anything big:
“US Telecom next claims that 47 U.S.C. § 230, enacted as part of the Communications Decency Act of 1996, a portion of the Telecommunications Act, confirms that Congress understood Internet access to be an information service. … however, it is unlikely that Congress would attempt to settle the regulatory status of broadband Internet access services in such an oblique and indirect manner… (Congress… does not, one might say, hide elephants in mouseholes.)” (US Telecom Association v. FCC, 825 F. 3d 674, 703 – Court of Appeals, DC Circuit, 2016; internal quotation marks omitted)
But Big Tech social media platforms completely abandoned Section 230 protections in the May 2022 SCOTUS application (NetChoice LLC v. Paxton): “From the moment users access a social media platform, everything they see is subject to editorial discretion by the platform in accordance with the platforms’ unique policies.”
Of course, fraud, trespass, & sabotage of their consumer is not “editorial discretion”. But they admitted that they show consumers information that they create, not information received from 3rd parties.
Interpretation of Section 230(c)(2) from FCC to NTIA/FCC Petition for Rulemaking, July 2020:“Many look to the statutory canon of ejusdem generis, which holds that catchall phases at the end of a statutory lists should be construed in light of the other phrases.[1] In this light, section 230(c)(2) only applies to obscene, violent, or other disturbing matters.[2]”
FOOTNOTES
[1] Washington State Dep’t of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 372 (2003) (“under the established interpretative canons of noscitur a sociis and ejusdem generis, where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar to those enumerated by the specific words”).
[2] Darnaa, LLC v. Google, Inc., 2016 WL 6540452 at *8 (N.D. Cal. 2016) (“The context of § 230(c)(2) appears to limit the term to that which the provider or user considers sexually offensive, violent, or harassing in content.”); Song Fi, Inc. v. Google, Inc., 108 F. Supp. 3d 876, 883 (N.D. Cal. 2015) (“First, when a statute provides a list of examples followed by a catchall term (or ‘residual clause’) like ‘otherwise objectionable,’ the preceding list provides a clue as to what the drafters intended the catchall provision to mean,” citing Circuit City Stores v. Adams, 532 U.S. 105, 115 (2001)). This is the rationale for the canon of construction known as eiusdem generis (often misspelled ejusdem generis), which is Latin for ‘of the same kind); National Numismatic v. eBay, 2008 U.S. Dist. LEXIS 109793, at *25 (M.D. Fla. Jul. 8, 2008) (“Section 230 is captioned ‘Protection for ‘Good Samaritan’ blocking and screening of offensive material,’ yet another indication that Congress was focused on potentially offensive materials, not simply any materials undesirable to a content provider or user”); Sherman v. Yahoo! Inc., 997 F. Supp. 2d 1129 (S.D. Cal. 2014) (text messages allegedly violate Telephone Consumer Protection Act; Yahoo! raised section 230(c)(2)(B) as a defense) (“The Court declines to broadly interpret ‘otherwise objectionable’ material to include any or all information or content. The Ninth Circuit has expressed caution at adopting an expansive interpretation of this provision where providers of blocking software ‘might abuse th[e CDA] immunity to block content for anticompetitive purposes or merely at its malicious whim, under the cover of considering such material “otherwise objectionable” under § 230(c)(2).”); Goddard v. Google, Inc., 2008 U.S. Dist. LEXIS 101890 (N.D. Cal. Dec. 17, 2008) (‘[i]t is difficult to accept . . . that Congress intended the general term “objectionable” to encompass an auction of potentially-counterfeit coins when the word is preceded by seven other words that describe pornography, graphic violence, obscenity, and harassment.’ …).