Six Horsemen of Irresponsibility

Frank Pasquale

This controversy often focuses on Section 230 of the Communications Decency Act (“CDA 230”), which Eric Goldman has called “[b]etter [t]han the First Amendment” to protect many online intermediaries from lawsuits, because “a defendant can win a motion to dismiss even when a plaintiff alleges that the defendant knew about--or intended--the allegedly illegal content.” In this brief piece, I do not intend to address the proper interpretation of CDA 230, or other laws. What I wish to do instead is to address synergistic effects rarely commented on in doctrinally siloed spaces of legal scholarship. Namely, what happens when laws like CDA 230 combine with or reinforce other immunizing doctrines, whether derived from federal or state constitutions, statutes, or common law? Is there any systematic way to reconsider the legal field as a whole, once such synergies against accountability are noticed?

In the course of teaching and writing about law and technology over the past decade, I have noticed no fewer than six “horsemen of irresponsibility” taking on important roles in technological contexts. These include (1) contractual limitations on liability, including exculpatory and forced arbitration clauses; (2) expansive free expression claims; (3) trade secrecy; (4) intermediary immunities (such as CDA 230); (5) deregulation; and (6) preemption. These doctrines may each, individually or in narrow alliances, offer commendable liberties to technological innovators. However, they now have been collectively weaponized to eviscerate accountability for many firms' wrongdoing (or, worse, have made it impossible for outsiders to even discover the wrongdoing). Until a new balance has been struck, courts should be extremely wary of expanding any of these categories of immunity lest they unintentionally enhance their already extraordinary collective effect.