Toward Textual Internet Immunity
By Gregory M. Dickinson
Internet immunity doctrine is broken. Under Section 230 of the Communications Decency Act of 1996, online entities are absolutely immune from lawsuits related to content authored by third parties. The law has been essential to the internet’s development over the last twenty years, but it has not kept pace with the times and is now deeply flawed. Democrats demand accountability for online misinformation. Republicans decry politically motivated censorship. And Congress, President Biden, the Department of Justice, and the Federal Communications Commission all have their own plans for reform. Absent from the fray, however—until now—has been the Supreme Court, which has never issued a decision interpreting Section 230. That appears poised to change, however, following Justice Thomas’s statement in Malwarebytes v. Enigma in which he urges the Court to prune back decades of lower-court precedent to craft a more limited immunity doctrine. This Essay discusses how courts’ zealous enforcement of the early internet’s free-information ethos gave birth to an expansive immunity doctrine, warns of potential pitfalls to reform, and explores what a narrower, text-focused doctrine might mean for the tech industry.
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Professor Gregory Dickinson is an Assistant Professor of Law at St. Thomas University College of Law and a Nonresident Fellow at the Stanford Law School Program in Law, Science and Technology.Professor Dickinson’s research centers on two key challenges facing law and technology. The first is developing legal frameworks to govern the internet, big data, and other emerging technologies. The second is deploying some of those same technologies—in particular, data mining and machine learning—to improve our understanding of how the American legal system operates in practice. Professor Dickinson’s work explores the strain that new technologies are placing on historical legal frameworks and proposes reforms to reshape existing regulatory frameworks to govern new technologies. Through computational analysis of large bodies of case law, his work seeks to provide a more systematic view of our legal system and doctrines and to guide legal reforms and policy decisions. Professor Dickinson’s work has appeared in journals including the BYU Law Review, George Washington Law Review, Stanford Law & Policy Review, and the Administrative Law Review.Professor Dickinson graduated summa cum laude with a B.S. in Computer Science from Houghton College and began his career as a software engineer. He then earned his J.D. from Harvard Law School, cum laude, served as law clerk to Judge Richard C. Wesley of the U.S. Court of Appeals for the Second Circuit and practiced for several years as a commercial litigation and privacy law attorney with Ropes & Gray in Boston and two law firms in Rochester, New York.