. . provide that an intentional violation of criminal law should be an exception to the immunity
from civil liability given to internet service providers.”132 The court further stated that such a
finding would, “effectively abrogate the immunity”133 and in support of this conclusion cited the
civil law case Zeran v. AOL, Inc., where the court “applied § 230 immunity even where Plaintiff
alleged giving the Internet service provider actual knowledge of the tortuous content at issue.”134
In other words, despite the clear intent of § 230 to clarify that the immunity provisions have “no
effect on criminal law,” courts have still found that the immunity provisions trump federal
C. CDA State Law Preemption
In addition to the federal criminal law provision discussed above, the CDA also contains
a provision that preempts “inconsistent” state law. Section 230(e)( 3) states: “Nothing in this
section shall be construed to prevent any State from enforcing any State law that is consistent
with this section. No cause of action may be brought and no liability may be imposed under any
State or local law that is inconsistent with this section.”135 Thus, if a state law is consistent with
the language of the CDA, it may stand. If the state law is deemed to be inconsistent with the
CDA provisions, however, the state law is preempted by the federal CDA, and not only will
liability not be imposed, but any case brought under that state law will not stand.
In three recent state court cases that test CDA preemption, the state law at issue was
squarely rejected as being preempted by the CDA. In 2012, the state of Washington attempted to
enact the criminal offense of “advertising commercial sexual abuse of a minor.”136 The proposed
law, S.B. 6251 stated, in part:
A person commits the offense of advertising commercial sexual abuse of a minor
if he or she knowingly publishes, disseminates, or displays, or causes directly or
indirectly, to be published, disseminated, or displayed, any advertisement for a
commercial sex act, which is to take place in the state of Washington and that
includes the depiction of a minor.137
This law would have held Backpage and other ISPs liable if they were found to have
knowingly published on their site an ad for a commercial sex act that depicts a child. Backpage
and Internet Archive,138 another ISP, sought and obtained both a temporary restraining order and
a preliminary injunction against Washington from implementing this new law, in part due to the
state law preemption section of the CDA.139 In a case regarding a preliminary injunction against
enforcement of Washington’s law, Plaintiff’s argued that S.B. 6251, “conflicts with and is
therefore preempted by the [CDA] of 1996” under § 230(e)( 3).140 The Washington law was
found to be “inconsistent with Section 230 because it criminalizes the ‘knowing’ publication,
132 Id. at 4.
134 Id. (citing Zeran v. Am. Online, Inc., 129 F. 3d 327, 330 (4th Cir. 1997)).
135 47 U.S.C.A. § 230(e)( 3) (West 2013).
136 S.B. 6251, 62d Leg., Reg. Sess. § 2 (Wa. 2012).
138 Internet Archive was a Plaintiff-Intervenor that filed a Motion Joining in the Motion for a Preliminary Injunction. See
Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1265, 1269 (W.D. Wash. 2012) (granting Plaintiffs’ Motions for Preliminary
139 Id. at 1269.
140 Id. at 1271.