It is well known that US laws have no extraterritorial application unless stated explicitly or in rare cases when “the contrary affirmative intention of Congress is clearly expressed.” Neither applies to Sec. 230.
2nd Circuit arrived at the wrong conclusion that Sec. 230 has extraterritorial application through a bizarre idea that Sec. 230’s regulated conduct is “litigation of civil claims in federal courts” (Force, 934 F.3d at 74). Of course, it is not. The RFCP regulates the litigation of civil claims in federal courts. Sec. 230 regulates the conduct of interactive service providers in the US. It is enforced and/or provides immunity in civil litigation in courts – like other laws.
Congressional Intent
Legislative History
Sec. 230 was enacted in response to Stratton Oakmont v Prodigy, 1995. Prodigy and AOL (of Zeran v AOL, 1997) were internet access service providers (ISPs). Their operations were domestic and local. Sec. 230 was mainly intended to remove from them disincentives to family-friendly content filtering, subject to users’ choices – an entirely domestic matter.
(The information providers mentioned in Sec. 230 can be anywhere, apparently.)
In 1996, Congress strictly distinguished between the Internet in the US and abroad and favored the US. Even web browsers used in the US could not be legally exported because of the restrictions on the encryption used. The vendors offered two versions of browsers – US and International.[1]
Plain Text
Another policy aim, stated in Sec. 230’s preamble, was to encourage internet development in the US. The word ‘Americans’ was mentioned three times.
Another policy aim was “to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer”. That bars extraterritorial application of 230(c)(1) because the such application would have the opposite effect – creating a safe harbor for stalkers and harassers outside of the US jurisdiction,[2] and allowing service providers to stalk and/or harass users with impunity.
Constitution
The extraterritorial intent of 230(c)(1) would be unconstitutional because it would deny Americans legal recourse against defamation committed abroad and aided by a Sec. 230 provider.
It would infringe on the power of US courts under Article III, Section 2 of the Constitution to adjudicate controversies “between Citizens of different States, … or the Citizens thereof, and foreign States, Citizens or Subjects.”
Consequences
Even under the proper (narrow) interpretation of 230(c)(1)’s as a defense against defamation claims, the extraterritorial application gives foreign persons, including governments, acting through Sec. 230 providers, enormous leverage against Americans. That includes an opportunity for unlimited election interference via the defamation of any candidate, essentially nullifying electoral rights. Defamation “rights” would also allow foreign persons to interfere with the activity of all branches of the US government and do away with national sovereignty.
This is happening now, with the ratio of foreign persons to Americans on Google, Facebook, Microsoft, and Apple (GFMA) services at more than 4:1.
As the courts have expanded Sec. 230, residents of the US have become defenseless against a broader range of torts and crimes committed by foreign persons and aided by Sec. 230 providers. This includes everything from the international drug trade (happening on a large scale) to murder for hire (theoretically).
Consequential to an extraterritorial reading of Sec. 230, GFMA operate globally and are regulated by foreign governments worldwide, including in the US.[3]
This is confirmed in NetChoice v. Paxton, Court of Appeals, 5th Circuit 2022: “Texas also points to the Platforms’ “discriminat[ion] against Americans and in favor of foreign adversaries””
It is hard to believe that Congress intended any of that.
Reading extraterritoriality into Sec. 230 is like a surrender declaration.
Territory determination
“On the internet”, it is not always easy to determine where conduct happens. In this and similar cases, it is easy. GFMA received the damning content in their data centers abroad, from persons located abroad, handled it by the offices located abroad (or in accordance with policies set by those offices), under regulation of foreign governments, and while serving audiences abroad. Further, GFMA have the “center of mass” abroad – most of their audience and revenue sources are abroad.
[1] Congress granted the executive branch the authority to regulate encryption. In 1996-99, multiple acts were considered. These proposals originated from the same committees or subcommittees that Sec. 230. Useful reading: https://web.archive.org/web/20090109061458/http://www.ncseonline.org/NLE/CRSreports/Science/st-40.cfm;
See also Junger v. Daley, 209 F. 3d 481 – Court of Appeals, 6th Circuit 2000.
[2] It is very easy to connect to any Internet service or website through a computer located across the globe (for example, using a third-party proxy server abroad). It is hard or impossible to even find a culprit abroad if the Sec. 230 provider is insulated from responsibility and has no incentive to collaborate with the victim or law enforcement. Even if 230(c)(1) is properly interpreted as protecting against claims of defamation only (in accordance with Zeran v AOL), the culprit can use defamation to deter victims from complaining about stalking or harassment. This hampers criminal prosecution as much as civil litigation.
[3] https://ec.europa.eu/commission/presscorner/detail/en/IP_16_1937;