Supreme Court Justice Clarence Thomas, “decisions t[o] broadly interpret §230(c)(1) to protect traditional publisher functions also eviscerated the narrower liability shield Congress included in the statute Section 230(c)(2)(A)… Courts have long emphasized non-textual arguments when interpreting §230, leaving questionable precedent in their wake… [a]dopting the too-common practice of reading extra immunity into statutes where it does not belong.”

“[S]ection 230(c) uses both ‘create’ and ‘develop’ as separate bases for loss of immunity. … We are advised by the Supreme Court that we must give meaning to ALL statutory terms, avoiding redundancy or duplication wherever possible. See Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 197, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985).”

Enigma vs. Malwarebytes: “The Good Samaritan provision of the Communications Decency Act does not immunize blocking and filtering decisions that are driven by anticompetitive animus.” – (motivation principle)

In J.W. Hampton v. United States, 276 U.S. 394 (1928), the Supreme Court clarified, “that when Congress does give an agency the ability to regulate, Congress must give the agencies an “intelligible principle” on which to base their regulations. This standard is viewed as quite lenient, and has rarely, if ever, been used to strike down legislation.” (Cornell law: Nondelegation Doctrine)

“[I]mmunity, “like other forms of immunity, is generally accorded effect at the first logical point in the litigation process” because “immunity is an immunity from suit rather than a mere defense to liability.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (9th Cir. 2009).

Section 230 fundamental principles:

  • 230(c) “Good Samaritan” (render care for the good of others):
  • 230(c)(1). OMISSION (Failure to render care)
  • 230(c)(2). ANY ACTION (render any care)

230(c) Protection for “Good Samaritan” blocking and screening of offensive material. (“intelligible principle”)

“No person who in good faith, and not for compensation, renders emergency
medical or nonmedical care or assistance at the scene of an emergency shall be liable for civil damages resulting from ANY ACT or OMISSON other than an ACT or OMISSION constituting gross negligence or willful or wanton misconduct.”

California’s “Good Samaritan” HS 1799.102:

“Good Samaritan” (“intelligible principle”) – protection from civil liability for any action to voluntarily render care (or any omission of action – failure to act), in Good Faith, not for compensation and without gross negligence or willful or wanton misconduct.


230(c) “Good Samaritan” motivation principles:

  1. Good Faith (i.e. sincere intention to be open, fair and honest)
  2. Not for Compensation (i.e. not for monetary purposes)
  3. Without Gross negligence (i.e. failure to exercise ethical care – deliberate
    inaction)
  4. Without willful or wanton misconduct (i.e. intentional or reckless disregard for
    others)

230(c)(1) Treatment of publisher or speaker (OMISSION)

“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.” (what the content IS)

230(c)(1) – “Good Samaritan” – Omission principles:

  1. The service provider is a “Good Samaritan” (for the good of others)
  2. Any actions taken, must be taken by “the publisher”
  3. The service provider FAILS to act (NO editorial actions taken by the Interactive
    Computer Service Provider)
  4. The service provider must NOT be responsible (in any way) for the creation or
    development of the information provided.

230(c)(2) No provider or user of an interactive computer service shall be held liable on account of… (ANY ACTION)

(a):
Any action voluntarily taken in “good faith” to restrict access to, or availability of, material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected”

(b):
Any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph 1”

230(c)(2) material restriction principles: (ANY ACTION)

  1. The service provider is a “Good Samaritan” (for the good of others)
  2. Any action” taken to restrict materials must be voluntary (not for
    compensation)
  3. Any action” taken to restrict materials must be in good faith (sincere, fair and
    honest)
  4. The service provider must NOT be responsible (in any way) for the creation or
    development of the information provided.

230(f) DEFINITIONS
(3) Information Content Provider:

“The definition of the term ‘information content provider’ means any person or entity that is responsible, in whole or in part, for the creation or development of information
provided through the Internet or any other interactive computer service.”

Proposed Section 230 Definitions: (understood but not stated)

(5) “Good Samaritan”
The term “Good Samaritan” means any action or omission to render care for the good of others, in good faith, not for compensation, without gross negligence or wanton and willful misconduct.

(6) Material
The term material means an information provided through the Internet or any other interactive computer service.

(7) In part
The term “in part” means any insignificant contribution or involvement.

(8) Creation
The term creation means the act of bringing material into existence.

(9) Development
The term development means any action to solicit, expound, make available, modify, manipulate, advance or promote the growth of material especially by deliberate effort over time.

Incorrect test: (Dyroff v. Ultimate Software Grp., Inc)

Immunity from liability exists for:

  1. a provider or user of an interactive computer service
  2. whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker
  3. of information provided by another information content provider.’”

Correct Test: (Fyk vs. Facebook)

Immunity from liability exists for:

  1. a “Good Samaritan”[230(c)]
  2. is the provider or user of an interactive computer service
  3. whom a plaintiff seeks to treat, under a state law cause of action, as “the publisher” or speaker of information provided exclusively by another information content provider – [230(c)(1)]
  4. who takes any voluntary action, as “a publisher”, to restrict ‘offensive materials’ in “good faith” – [230(c)(2)(a)]
  5. who takes any action to enable another information content provider the technical means to restrict materials – [230(c)(2)(b)]