Article | Harvard Journal on Legislation | Winter 2019

From the Digital to the Physical: Federal Limitations on Regulating Online Marketplaces

by Benjamin Edelman and Abbey Stemler

Abstract

Online marketplaces have transformed how we shop, travel, and interact with the world. Yet, their unique innovations also present a panoply of challenges for communities and states. Surprisingly, federal laws are chief among those challenges despite the fact that online marketplaces facilitate transactions traditionally regulated at the local level. In this article, we survey the federal laws that frame the situation, especially §230 of the Communications Decency Act (CDA), a 1996 law largely meant to protect online platforms from defamation lawsuits. The CDA has been stretched beyond recognition to prevent all manner of prudent regulation. We offer specific suggestions to correct this misinterpretation to assure that state and local governments can appropriately respond to the digital activities that impact physical realities.

Keywords: marketplaces; peer to peer; sharing economy; decentralized; regulation; preemption; Markets; Internet; Government Legislation; Laws and Statutes; United States;

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Citation:

Edelman, Benjamin, and Abbey Stemler. "From the Digital to the Physical: Federal Limitations on Regulating Online Marketplaces." Harvard Journal on Legislation 56, no. 1 (Winter 2019): 141–197.

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