Two truths coexist: The Internet has brought with it tremendous changes for learning, connection, and business; and the Internet and other digital platforms have led to an unprecedented exploitation of children on a scale never before seen or even imagined. This is due in large part to §230 of the Communications Decency Act – the law which these platforms have perverted to immunize their activity from liability for the tremendous harms caused. This duality has led to great debate about whether this 1996 law has any value in the 21 st Century. This article answers that question by focusing on the issues surrounding child exploitation on the Internet. It does so because, some in the modern debate attempt to reframe §230’s origin as one singularly focused on Internet freedom. This is a false narrative, ignoring the actual context in which §230 became law. This article re-examines the actual history of §230, its connection to child protection, and corrects the artificial reframing of §230 as legislation focused only on creating an unregulated Internet. It examines the child protective landscape from which it emerged and the promises its proponents made regarding protection. It then compares those intentions and promises to the present day climate regarding child exploitation on the Internet, specifically focusing on the problem of Child Sexual Abuse Material (CSAM) – also known as child pornography in the United States. Observing the cavernous fissure between one of the many intentions of §230 and the reality of online child exploitation it argues that the need to reform §230 and return it to one of its original purposes is now. This article argues that need is prescient not only because of the grave reality of CSAM online, but also because of one of the very intentions behind §230 – to protect children.
Mary Graw Leary, §230 of the Communications Decency Act: Regarding Child Sexual Abuse Material – The Experiment is Done and it Failed, 40 CARDOZO ARTS & ENT. L.J. _ (forthcoming 2022).