Intermediary Design Duties

Citation: Olivier Sylvain (2017) Intermediary Design Duties. Connecticut Law Review (RSS)
Internet Archive Scholar (search for fulltext): Intermediary Design Duties
Download: https://ssrn.com/abstract=2997141
Tagged: CDA230 (RSS), intermediary liability (RSS)

Summary

Titular argument that intermediary platforms can incur liability through their design, in particular if their design elicits illegal behavior from users, as in the case of Roommates (form listing preferences including with regard to protected classes violated Fair Housing Act), but also, more speculatively, when design is less visible (e.g., classifications generated through big data) or business design has platform exploiting user-provided content through arrangements that don't involve publication, e.g., selling user data to third parties.

Also argues CDA 230 should be narrowed, either judicially or legislatively, to only protect platforms that do not contribute to illegal activity through their design and also make a good faith effort to protect users (taking "Good Samaritan" seriously).

Gives a broad background on history of CDA 230 and its interpretation which led to very strong immunity for intermediaries, beyond what a plan reading of the statute, its legislative history, or the size and strength of intermediaries in 2017 would suggest.

Theoretical and Practical Relevance

Shorter article by author making some of same points https://www.law.com/therecorder/sites/therecorder/2017/11/10/aol-v-zeran-the-cyberlibertarian-hack-of-%c2%a7230-has-run-its-course/ alongside essays by many others on 20th anniversary of Zeran which helped establish strong immunity (discussed in paper).