There is no "fairness" factor on the law.
That's incorrect. Your focus on one little corner of the law... does not have it exist in a vacuum. It still rests on top of a larger foundation... many of the requirements of which are unstated... yet inherited by your little corner. Many rules from outside your little corner... apply to your little corner. The rest of the law... is not built FROM the part you care about... so that unless the Constitution, and every other law that applies to you, is included as an part of the text in the one part you care about... it is made irrelevant and does not apply ?
Law For Code Monkeys:
The law is a hierarchical structure... unless stated otherwise (with strong limits in what may be excepted) the subsidiary parts inherit their parents characteristics. If you don't know what those parent characteristics ARE... then you don't know what your subsidiary section of text (law code) actually says... or how it will function in practice because of what it inherits in operating limits that aren't stated... that still control the meaning of the text (code) with those unstated inherited functions.
Read the Bill of Rights. Understand that the bit of law you are reading in CDA 230... inherits every element and is limited by it. Know that Congress does not have the power to write (any exception into) a law that violates any of those elements in limits... or any persons rights. Know that every law inherits every limit there. Know that every person... has a superior RIGHT that supersedes your incorrect belief about there being no "fairness factor" written into the law.
The CDA 230... tells you that... even though you refuse to listen... when it requires good faith from you... as a condition precedent... that has to be met before you can earn the benefit the law offers you.
The law DOES tell you, right in the text, that good faith is a requirement... but it does that only as a convenience for you. If it did not directly state that good faith was required... that wouldn't change the fact that it is required... as that's one of those "inherited functions"... that's a cornerstone of the law.
Good faith... requires honesty, fairness, lawfulness of purpose... and more.
There's nothing that said in cannot be biased in its application.
That's incorrect. See the above.
Bias... is unfairness. It is disallowed as an option for you... because it is "not in good faith"... which the law (and your contracts, each) directly requires of you. So if you demonstrate bias in your effort... the law will not grant you immunity from liability under CDA 230... because you didn't meet the conditions required to earn the exemption.
That doesn't mean you can't discriminate against autos other than the one you prefer... in creating a site focused on one type... as long you do act in good faith in communicating your purpose, and don't mislead people about your purpose, the rules, etc., and are fair and unbiased in how conduct it.
But, if you advertise a site for "car chat... everyone welcome" and get people to pay to join... and then "allow only content about red convertible Chevy's and choose to remove content and ban anyone who posts about red hardtop Chevy's"... that's not an immunized prerogative... its fraud.
Also... there is no prerogative involved here... anyone who wants to publish on the internet as a third party has access to the same limited grant of immunity... as long as they follow the rules to earn the exemption.
That doesn't mean you can't discriminate against users... who don't follow the rules of your site... as long as you act in good faith... fairly... and in compliance with the requirements of the law and your contracts... which includes "without bias"... in crafting and enforcing rules.
But, if you present yourself as "open to everyone"... and then act, unfairly, and not in good faith, to impose some punitive disparate treatment of some... because of some bias you have against them ?
Well, then you don't earn the benefit of the exemption from liability under CDA 230... and you will likely be subject to civil liability if someone sues you, and will likely lose if they succeed in proving your lack of good faith, your unfairness, your bias... your dishonesty, or your lawlessness... but then you are ALSO probably in violation of other laws as well... so it may not be the civil suit you have to most worry about...
And, then, you'd be in the same position as Facebook...
You are perpetually stuck on the label "publisher." The label is meaningless. Interactive computer service the the relevant definition.
That's incorrect. The label "publisher" is not without meaning... as used it defines one who HAS creative rights, ownership of, control over the uses, and liability for what they publish... as the law requires for publishers.
CDA 230 does NOT obviate the liability of publishers... nor does it obviate the publishers liability of interactive computer services... by declaring that ALL interactive computer services ARE NOT publishers... or are not to be considered as, etc.
What it does... INSTEAD of what you claim... is prescribe a set of rules for interactive computer services... which IF THE RULES ARE FOLLOWED... will allow ONLY those interactive computer services who publish as a THIRD PARTY... to EARN an exemption from publishers liability... which THEY WILL NOT EARN... if the DO NOT FOLLOW... the rules that are laid out.
If you are an interactive computer service... and you DO exercise FIRST PARTY CONTROL... over the works that you publish... then you have no claim to an exemption from publishers liability.
So, if you are a neutral conduit of others works... and otherwise adhere to the rules... your risks are limited.
But, if you are NOT a neutral conduit of others works as a third party... but exercise control, or exercise bias in the uses of what you publish... even though others created it... the WAY you use others works... might obviate the limits in liability you assume you have.
So, one question for interactive computer service providers... is... how do you know you aren't obviating limits in liability... by engaging in some disparate control over the uses of the materials you publish... that might be interpreted as something other than "third party" neutrality... not clean hands ?
Re-editing others works... for instance... probably obviates that "third party" liability limit ?
But, so might controlling distribution... limiting or targeting the audience given access... or other means of making the authors words your own... or a functional substitute for your own... as might any exercise of bias in enabling or limiting access...
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