Will Section 230 Immunity Survive in the Long Run?

Artificial intelligence (“AI”) companies are facing serious backlash for allegations of creating false narratives, taking copyrighted work without consent, and the prevalent spread of deep fakes (photos, videos, etc., that are created by artificial intelligence to depict a person that looks real)  on the internet. (Dani Di Placido, Forbes). These allegations led several prominent organizations such as Thomson Reuters, Sony, and The New York Times to file suit against AI companies, including OpenAI and Microsoft. (Kate Knibbs, Wired). Among the many challenges that come with filing lawsuits, plaintiffs suing AI companies have a particular challenge to conquer in addressing Section 230 of the Communications Decency Act (“CDA”). This article examines the CDA, how Section 230 applies to AI systems, relevant court decisions, and how these legal interpretations may evolve as both the law and AI technology advance.

The CDA provides immunity from most third-party content lawsuits for “online content by interactive computer service providers.” (Jake Gray & Abbey Block, American Bar Association). Publishers and speakers in “interactive computer services” are not treated as the providers or users of the interactive computer system. (Jennifer Huddleston, CATO Institute). Generally, companies that fall under Section 230 include “broadband internet access services, social media services, and basically any other service that transmits information over the internet.” (Noor Waheed, Center For Democracy & Technology). The CDA is relevant to AI because Generative AI is an “interactive computer service.” Id.

Section 230 states that, unless the provider “contribute[s] materially to the alleged unlawfulness published on the platform,” the provider will not be liable. (Jake Gray & Abbey Block, American Bar Association). At its core, an author is one who creates new work whereas an editor is one who polishes work. (Maryville University). To qualify for the protections under Section 230, the provider must only provide “third parties with neutral tools” to assist in web content creation. (Jake Gray & Abbey Block, American Bar Association). The main dispute that courts are struggling to answer is whether AI is an author or an editor and is thus protected under Section 230. Id. The following cases suggest that courts are skeptical about calling AI and online services like Matchmaker.com authors.

In Thaler v. Perlmutter, Stephen Thaler tried to register his visual art with the copyright office and listed AI as the author of the artwork. Thaler v. Perlmutter, 687 F.Supp.3d 140, 142 (D.D.C. 2023), aff’d, No. 23-5233, 2025 WL 839178 (D.C. Cir. Mar. 18, 2025). Ultimately, the copyright office rejected his application on the grounds that an author must be a human. Id. at 146. The court upheld the rejection, holding that there is no eligibility for copyright when work is generated entirely by an artificial system absent human involvement. Id. at 150.

In Carafano v. MetroSplash.com, Matchmaker.com required members to fill out questionnaires with both multiple-choice and short-answer questions. Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1121 (9th Cir. 2003). On the app, an unknown person posed as the popular actress Christianne Carafano and released the actress’s address and phone number. Id. Carafano alleged “invasion of privacy, misappropriation of the right of publicity, defamation, and negligence.” Id. at 1122. Ultimately, the court held that Matchmaker.com did not “contribute materially to the unlawfulness” and was granted immunity under Section 230. Id. at 1124. Matchmaker.com was not transformed into an author by simply collecting essay questions. Id.

Ron Wyden an Oregon Senator and  a co-author of Section 230, rejects Section 230 immunity for Generative AI systems. (Kristin Rheins, Progressive Policy Institute). Senator Wyden’s position is that Section 230 was intended to protect users and websites, not AI companies. Id. Individuals who are against AI receiving Section 230 immunity also argue that AI is an editor more than an author because AI organizes and revises third party-data which makes AI a material contributor. Id. On the other hand, proponents of Section 230 immunity for Generative AI systems argue that AI should be given Section 230 immunity because AI relies on human input to create work. Id. Therefore, AI is not an editor but an author. Id.

Overall, Section 230 immunity acts as a shield to most third-party content lawsuits, but not all lawsuits. There are a series of exceptions and other options available for those affected by AI. Generally, the statute protects providers and users from information from another person. (Valerie Brannon & Eric Holmes, Congressional Research Service). However, the statute does not prevent legal responsibility for information providers and users “have developed or for activities unrelated to third-party content.” Id.

For now, Section 230 immunity is where it needs to be. Section 230 immunity is strong because it protects a majority of services. Yet it is equally strong, because it does not provide unlimited immunity, which makes it fair for individuals to get recourse against AI under the CDA. AI is best described as an editor because it is like a search engine since it bases its answers on other people's ideas and requires a low amount of creativity to do this. (Jake Gray & Abbey Block, American Bar Association). Often titled as AI “editors” or “assistants” on legal search engines like Westlaw, they are neutral tools that are afforded immunity under Section 230. Id. In conclusion, Section 230 is adequate for the needs of today’s society and is appropriate for navigating AI.  

Taken together, these matters are not fully decided. Technology is constantly changing, and the law is a response to technology. (Benjamin Daniel, MIT). From the earliest days of technology, laws have changed and adjusted to suit the needs of society at the time and AI is another example of this. It is unclear what will change with new technology, but what remains clear is that the law will change due to the advances in these new technologies. Within the near future, we will have a better understanding of what it means to be an author and an editor in an ever-advancing digital world.