California's Net Neutrality Law Violates CDA's Section 230

As I have stated, I believe that CDA’s Section 230 needs to be revised and updated because of the misinterpretation by the courts and the abuse of its provisions by those in Silicon Valley and their policy minions. An important first step was the enactment of FOSTA-SESTA. But more needs to be done. Although it was gratifying to see the legal smack down of the Electronic Frontier Foundation's legal challenge to FOSTA-SESTA that occured last week by a federal judge. But more on that at a later time.

Recently, what I have found most interesting is that those who are strong supporters of CDA's Section 230 like EFF, the Berkman Center, Google, etc have not highlighted how the recent California Net Neutrality Law (CANNL) is a clear violation of CDA 230. EFF and others have focused on the FCC's recent order to repeal and the DoJ arguments, but not on the actual text of the CANNL and its conflict with the text of CDA 230's state pre-emption.

As the Electronic Frontier Foundation has stated:(https://www.eff.org/issues/bloggers/legal/liability/230)

What protection does Section 230 provide?

Section 230 says that "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." This federal law preempts any state laws to the contrary: "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." The courts have repeatedly rejected attempts to limit the reach of Section 230 to "traditional" Internet service providers, instead treating many diverse entities as "interactive computer service providers." 

The new CANNL states, "3101. (a) It shall be unlawful for a fixed Internet service provider, insofar as the provider is engaged in providing fixed broadband Internet access service, to engage in any of the following activities:

(1) Blocking lawful content, applications, services, or nonharmful devices, subject to reasonable network management.

(2) Impairing or degrading lawful Internet traffic on the basis of Internet content, application, or service, or use of a nonharmful device, subject to reasonable network management.

Yet the CDA 230 states: 

Policy It is the policy of the United States—

(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;

(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

Further, CDA 230 limits what states can require as highlighted by EFF:

(1) Treatment of publisher or speaker

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.

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

 (3) State law

Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

So the fundamental question: Is it unlawful under CANNL for an interactive computer service to take voluntary action under CDA 230 liability protections that are made "in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected," or is CANNL in direct conflict with liability protections under CDA 230? EFF answer that question clearly when they state, "federal law preempts any state laws to the contrary” of CDA 230.