Section 230 of the Communications Decency Act
As noted in the preceding sections, liability for offline content distributors or hosts largely turns on whether the host knows or has reason to know that they are hosting tortious content. In the earliest days of the Internet, courts used these standards to assess liability of online intermediaries, but found that the law created a perverse result. Online intermediaries possessed the technical ability to filter or screen content in the way an offline intermediary never could, but under existing standards this meant that the intermediary would assume liability for all the content over which they had supervisory control. In the most famous case on point, this included a service that was trying specifically to curate a family friendly environment, at a time when the public was greatly concerned about the adult content on the Internet. In order to “to promote the continued development of the Internet and other interactive computer services and other interactive media [and] to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services,” Congress enacted Section 230 of the Communications Decency Act.
Section 230 prevents online intermediaries from being treated as the publisher of content from users of the intermediaries. By the terms of the statute, “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.”  An “interactive computer service” under Section 230 is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server . . . ” Online intermediaries of all sorts meet this definition, including Internet service providers, social media websites, blogging platforms, message boards, and search engines. An “information content provider” in turn is defined as “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.”
Section 230 covers claims of defamation, invasion of privacy, tortious interference, civil liability for criminal law violations, and general negligence claims based on third-party content, but it expressly excludes federal criminal law, intellectual property law, and the federal Electronic Communications Privacy Act or any state analogues. Its terms also specify that the coverage is for “another’s” content, thus not protecting statements published by the interactive computer service directly. Thus, to apply Section 230’s protection, a defendant must show (1) that it is a provider or user of an interactive computer service; (2) that it is being treated as the publisher of content (though not with respect to a federal crimes, intellectual property, or communications privacy law); and (3) that the content is provided by another information content provider.
The law was designed in part to foster curation of online content, and courts have found that a wide array of actions can be taken by “interactive computer services” over third-party content are covered by Section 230. These include basic editorial functions, such as deciding whether to publish, remove, or edit content; soliciting users to submit legal content; paying a third party to create or submit content; allowing users to respond to forms or drop-downs to submit content; and keeping content online even after being notified the material is unlawful. This applies to both claims rooted in defamation and those rooted in invasion of privacy.
On the other hand, if the intermediary creates actionable content itself, it will be liable for that content. Courts are also unlikely to find that Section 230 applies when an interactive computer service edits the content of a third party and materially altering its meaning to make it actionable; requires users to submit unlawful content; or if the service promises to remove material and then fails to do so. When an intermediary takes these actions, it is deemed to have “developed” the content by “materially contributing to the alleged illegality of the conduct.”
While stated very simply, the law upsets decades of precedent in the areas of content liability law, and radically alters the burdens on online services for claims based on user content. By limiting any assumed liability for a wide range of content-based claims (and given the other content areas discussed below), Section 230 effectively removes any duty for an interactive computer service to monitor content on its platforms, a tremendous boon for the development of new intermediaries and services. Virtually all liability for content-based torts is pushed from the service to others, often the user. In practical terms, however, this has yet to manifest a windfall for online services; many claims are still brought against online intermediaries, and the question is often litigated extensively and at great expense before courts find that claims are invalid.
As noted above, Section 230 does not cover intellectual property laws, and thus different rules apply in these cases. These are now addressed.
 Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995). See also Lawrence Lessig, Code 2.0 249-52 (2006) (discussing the Internet anti-pornography efforts happening around the time of the Communications Decency Act debate).
 47 U.S.C. § 230. The section was part of a greater law that sought to relegate the transmission of offensive content to minors, the majority of which was later struck by the Supreme Court. See Reno v. ACLU, 521 U.S. 844 (1997).
 47 U.S.C. § 230(c)(1).
 § 230(f)(2).
 See Ardia, supra note [[x]], at 387-89.
 § 230(f)(3).
 See Ardia, supra note [[x]], at 452.
 § 230(e)(1)–(4). The Electronic Communications Privacy Act governs the voluntary and compelled disclosure of electronic communications by electronic communications services.
 See § 230(c)(1).
 See Donato v. Moldow, 865 A.2d 711 (N.J. Super. Ct. 2005).
 See Corbis Corporation v. Amazon.com, Inc., 351 F.Supp.2d 1090 (W.D. Wash. 2004); see also Global Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F. Supp. 2d 929, 933 (D. Ariz. 2008) (holding that even though a website “encourages the publication of defamatory content,” the website is not responsible for the “creation or development” of the posts on the site).
 See Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).
 See Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003).
 See Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997). Promising to remove content and then declining to do so, however, can expose an interactive computer service to liability. See Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009). For more examples of actions likely to be covered under Section 230, see Online Activities Covered by Section 230, Digital Media Law Project, http://www.dmlp.org/legal-guide/online-activities-covered-section-230 (last updated Nov. 10, 2011).
 See, e.g., Jones v. Dirty World Entertainment Recordings, LLC, 2014 WL 2694184 (6th Cir. 2014) (defamation claim preempted by Section 230); Doe v. Friendfinder Network, 540 F. Supp. 2d 288, 302–303 (D.N.H. 2008) (intrusion upon seclusion and public disclosure of private facts claims preempted).
 See MCW, Inc. v. Badbusinessbureau.com, LLC, 2004 WL 833595, No. 3:02-CV-2727-G at * 9 (N.D. Tex. April 19, 2004) (the operator of a website may be liable when it is alleged that “the defendants themselves create, develop, and post original, defamatory information concerning” the plaintiff).
 See Online Activities Not Covered by Section 230, Digital Media Law Project, http://www.dmlp.org/legal-guide/online-activities-not-covered-section-230 (last updated Nov. 10, 2011).
 See Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157, 1175 (9th Cir. 2008) (en banc).
 See Barnes v. Yahoo!, Inc, 570 F.3d 1096 (9th Cir. 2009).
 See Jones v. Dirty World Entertainment Recordings, LLC, 2014 WL 2694184 (6th Cir. 2014).
 See Ardia, supra note [[x]], at 411.
 See, e.g., Jack M. Balkin, Old-School/New-School Speech Regulation, 127 Harv. L. Rev. 1, 17 (2014) (“Section 230 immunity . . . ha[s] been among the most important protections for free expression in the United States in the digital age. [It] has made possible the development of a wide range of telecommunications systems, search engines, platforms, and cloud services without fear of crippling liability.”).
 Id. at 493.
The Espionage Act
Because of the considerable attention given toward the dissemination of classified government information through the documents released by Chelsea Manning and Edward Snowden, and the profound policy implications of both the information they conveyed and the treatment of those who handle and disseminate such documents to the public, special attention should be given to a particular federal crime that implicates the disclosure of classified information. The Espionage Act of 1917 contains many provisions intended to prohibit interference with military operations and protect national security. These include provisions that criminalize obtaining, collecting, or communicating information that would harm the harm the national defense of the United States. This section was used by the United States government to go after the New York Times and Washington Post for their publication of “The Pentagon Papers,” a classified and damning assessment of United States involvement in the Vietnam War. Most recently, it was used to convict former U.S. Army intelligence analyst Chelsea Manning for leaking classified documents to the organization WikiLeaks.
While all federal criminal law includes the possibility for a charge of aiding and abetting another’s violation of the law, the United States has never successfully prosecuted an information intermediary for disseminating classified information under the Espionage Act. Such a theory would present profound First Amendment issues, and ultimately an intermediary may only be found liable if the intermediary bribed, coerced, or defrauded a government employee to disclose classified information.
 See 18 U.S.C. §§ 793–798.
 18 U.S.C. § 793(e).
 New York Times Co. v. United States, 403 U.S. 713 (1971).
 Cora Currier, Charting Obama’s Crackdown on National Security Leaks, Pro Publica, July 30, 2013, <http://www.propublica.org/special/sealing-loose-lips-charting-obamas-crackdown-on-national-security-leaks>. Many others have been charged but not ultimately convicted for violating the Espionage Act or conspiracy to violate the Espionage Act.
 18 U.S.C. § 2; see also § 793(g) (“If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.”).
 See Emily Peterson, WikiLeaks and the Espionage Act of 1917: Can Congress Make It a Crime for Journalists to Publish Classified Information?, The New Media and the Law Vol. 35 No. 3, Summer 2011, available at <http://www.rcfp.org/browse-media-law-resources/news-media-law/wikileaks-and-espionage-act-1917>.
 See Geoffrey R. Stone, Government Secrecy vs. Freedom of the Press, 1 Harv. L. & Pol’y Rev. 185, 217. For more on the general First Amendment right to disclose true matters of public concern, see supra notes x-y and accompanying text.