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  • Apr 22nd, 2014 @ 2:04pm

    Have you all forgotten about CDA 230?

    Hey guys -- what am I missing here? The entire premise of this article is wrong. The assumption is that if you are a user of an interactive computer service (i.e., Twitter) and you retweet content from another information content provider, you can be held criminally liable for doing so.

    Not so fast. I realize that probably 99% of people don't understand this, but the CDA (47 USC 230) precludes not only civil liability, but it also bars criminal liability under state law in precisely this context. Yes, the statute has a section heading that says: "No effect on criminal law..." but that addresses only certain aspects of FEDERAL criminal law. State criminal laws are absolutely preempted by the CDA if they seek to punish a user for "publishing" content from another third party. See, e.g., Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D.Wash 2012)
    http://scholar.google.com/scholar_case?case=1859109590878296312&hl=en&as_sdt=6&as_v is=1&oi=scholarr

    Although most of these types of cases deal with website owners attempting to avoid criminal liability under the CDA, the logic applies to users in exactly the same way. This is so because the CDA applies equally to both PROVIDERS and USERS of interactive computer services.

    So, bottom line -- sorry, but there is absolutely no exposure to criminal liability under New Jersey or any other state law for retweeting something like this. Mike Masnik is an Internet god, but this time he made the mistake of trusting the legal analysis of someone who doesn't know what he's talking about.