Graham H. Ryan, J.D., is a litigation and appellate partner at Jones Walker LLP, with extensive experience litigating complex commercial issues in all phases of litigation, appeals, and regulatory proceedings, including those involving technology, artificial intelligence, Section 230, and related matters. He holds an international designation as an Artificial Intelligence Governance Professional from the International Association of Privacy Professionals, and has been published on legal and constitutional issues arising from emerging Internet technologies.
The law that “created the Internet” has reached a breaking point. Section 230 of the Communications Decency Act is a law enacted in 1996 that catalyzed the Internet’s development by providing Internet-based service providers like search engines and social networks legal immunity from lawsuits based on harmful content created by third parties For example, Google generally cannot be held civilly liable for simply retrieving and displaying harmful Internet-based content that it did not create. Similarly, Facebook can typically avoid liability for harmful content contained in a user’s post on its platform.
For decades, U.S. courts have applied Section 230 protection expansively, furthering the law’s purpose “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” The functional scope of Section 230 immunity has evolved alongside Internet technology. It initially covered passive intermediaries like AOL online message boards at a time when the number of Internet users totaled 40 million, but it now protects advanced social media algorithms that filter, promote, and personalize content as the population of Internet users has surpassed 5.35 billion. In the intervening period, courts have stretched Section 230 to its logical bounds — and some would argue far beyond. But the law establishes one bright line courts have not crossed: Section 230 protection does not extend to Internet-based services that actually create or develop content.
Technology has crossed that line. The Internet’s future development will be shaped by generative artificial intelligence (AI), which performs an unprecedented technological role in creating and developing content rather than merely retrieving or exchanging it. Courts have long been reluctant to disrupt Section 230’s legal underpinnings of the Internet and have carefully adapted Section 230’s legal standards to extend its protections to new technologies. But courts will soon be confronted with unavoidable calls to reshape Section 230 in the context of whether it applies to protect the generative AI systems that will drive the Internet’s future.