The ability of an ISP or social media site to block access to controversial or inflammatory content is a difficult issue at the intersection of cybersecurity and Internet governance. In a case just decided by Judge Lucy Koh in the Northern District of California, Facebook won dismissal on the pleadings of Sikhs for Justice’s (“SFJ”) claim that Facebook blocked access to SFJ’s page in India.
SJF’s claim was based on Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, which provides that “[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation . . . without discrimination or segregation on the ground of race, color, religion, or national origin.”
The court held that SJF’s Title II claim is barred by the Communications Decency Act (“CDA”), 47 U.S.C. § 230. This holding was consistent with other cases holding that ISPs are publishers entitled to CDA immunity.
Cases like this are important for Internet governance because of the gate keeping role played by large ISPs, search providers, and social media sites such as Facebook. If these gate keepers can arbitrarily block access to sites a government finds objectionable, traditional political sovereigns can exercise significant control over the Internet. On the other hand, if these gate keepers cannot accede to the wishes of governments in territories where they have users without threat of liability elsewhere, users in one country (such as the U.S.) could use local law to thwart the policies of another country (such as India).