Section 230 of the Communications Decency Act, enacted in the 1990s, is the legal foundation of the modern internet. Its subsection (c)(1) states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” By treating the provider or re-poster as merely the conduit for third party content instead of a responsible publisher, subsection (c)(1) has protected search engines, bulletin boards, buyer-seller exchanges and social media against civil liability for what third party creators post, turning the internet into the cheapest and most accessible form of publishing ever known. Along with the hundred blooming flowers that the drafters of Section 230 hoped for, it has generated a bumper crop of noxious weeds. Among them are the “challenges” posted on social media, which dare young people to create videos of themselves performing some kind of risky act. Some of the challenges are merely disgusting. Some are potentially fatal. One has led to the Third Circuit’s recent decision in Anderson v. TikTok that limited the scope of Section 230 immunity.

The so-called Blackout Challenge posted on TikTok dares people to self-asphyxiate until they lose consciousness. Ten-year-old Nylah Anderson took the Blackout Challenge. Tragically, she strangled herself to death. Nylah hadn’t found the Blackout Challenge by chance or by browsing at random. TikTok brought it to her attention through its “For You Page” algorithm, which suggests to users new things that they will like. According to the Third Circuit, the algorithm makes recommendations based on “a variety of factors, including the user’s age and other demographics, online interactions, and other metadata.”