Summary. Everything a platform has to build, in the order it matters.

Phase 1 — Terms and formation

  • Terms presented with clickwrap affirmative assent, not browsewrap.
  • Record of which version each user accepted, and when.
  • Change process defined, with notice and re-acceptance where material.
  • Every commitment in the terms is one operations actually meets. No aspirational timelines.
  • License from users broad enough to operate the service, no broader.
  • User representations about rights in uploaded content, with indemnity.
  • Prohibited conduct defined specifically enough to enforce.
  • Termination rights and treatment of account data on termination.
  • Dispute resolution — arbitration and class waiver if desired, with the formation record to support it.
  • Mass arbitration considered in clause architecture.
  • Governing law and venue.
  • Privacy notice consistent with actual data practices.

Failure mode: promising 24-hour review with two part-time moderators.

Phase 2 — Copyright infrastructure

Mandatory: intellectual property is carved out of 47 U.S.C. § 230, so copyright runs through 17 U.S.C. § 512.

  • DMCA agent designated with the Copyright Office and registration current. Verify the entry, not a calendar reminder.
  • Agent contact information published on the service where users can find it.
  • Notice intake accepting statutorily compliant notices.
  • Expeditious removal on compliant notice.
  • Notification to the user whose content was removed.
  • Counter-notice process, with restoration after the statutory period unless suit is filed.
  • Repeat infringer policy adopted AND reasonably implemented — strike tracking, defined thresholds, actual terminations.
  • Termination records retained.
  • Standard technical measures accommodated.
  • No direct financial benefit from infringing activity the platform can control.

Failure mode: a written repeat infringer policy with zero terminations. That is not "reasonably implemented," and the safe harbor is lost.

Phase 3 — Community guidelines and enforcement

  • Public community guidelines, plainly written, with examples.
  • Internal enforcement guidance, more detailed, not published.
  • Enforcement ladder: warning → removal → feature restriction → suspension → termination.
  • Escalation paths for specialist, legal, and executive decisions.
  • Repeat offender rules, distinct from the copyright policy.
  • Consistency tested: sample decisions monthly, measure inter-reviewer agreement.
  • Decision logging: policy applied, actor, timestamp, outcome, reasoning.
  • Automated versus human decisions documented.
  • Appeals process — and if offered, actually returning decisions.
  • Moderator training and welfare provisions, including for outsourced review.

Phase 4 — Notice and action for non-copyright categories

Build intake, triage, target response time, decision record, user notification, and appeal for each:

  • Trademark and counterfeiting
  • Right of publicity and unauthorized likeness — the § 230 IP carve-out may reach state publicity claims
  • Defamation (route and log; most platforms do not adjudicate truth)
  • Privacy complaints
  • Non-consensual intimate imagery — expedited path, hash matching, no court order required
  • Impersonation, with parody distinguished
  • Harassment and threats, with a safety escalation path
  • Child safety — mandatory reporting, and preserve rather than delete
  • Illegal and regulated goods
  • Government and law enforcement requests

Phase 5 — Legal process

  • Single monitored intake address for subpoenas and legal process.
  • Validation checklist: subpoena, court order, warrant, or informal request — each authorizes different disclosures.
  • Stored Communications Act analysis for content versus non-content.
  • User notification where permitted and not barred by a nondisclosure order.
  • If the terms promise notification, it happens.
  • Objections raised for overbreadth, jurisdiction, or wrong process.
  • Response within the required period, or a documented extension.
  • Log maintained for transparency reporting.
  • Unmasking requests: notify, let the user object, do not litigate on the user's behalf.

Phase 6 — Transparency instrumentation

Build the logging before the reporting obligation:

  • Content actioned, by category and policy
  • Actions taken, by type
  • Automated versus human decisions
  • Appeals received, granted, denied
  • Median time to action
  • Legal removal requests, by jurisdiction and type
  • Accounts terminated and reinstated
  • Copyright notices received, actioned, counter-noticed
  • Report producible on demand, even before required

Phase 7 — Design review

The product-defect claims plaintiffs use to plead around § 230.

  • Intake forms reviewed against anti-discrimination law. Structured fields eliciting protected categories are the Roommates.Com problem — especially in housing, employment, lending, insurance, and credit.
  • Free-text preferred over structured categories where the category could be protected.
  • Recommendation and ranking objectives documented, with safety constraints applied and recorded.
  • Features affecting minors reviewed: defaults, notifications, engagement mechanics, prolonged-use incentives.
  • Age assurance approach documented, including its limitations.
  • Safety features (block, mute, report) verified to work as described.
  • A review gate: product changes in these categories get legal review before launch.

Phase 8 — Minors

  • Determine whether the service is directed to children under 13 or has actual knowledge of such users.
  • If so: verifiable parental consent, collection limits, and disclosures under 15 U.S.C. § 6501 and 16 C.F.R. Part 312.
  • Age-appropriate design obligations for older minors in relevant jurisdictions: high-privacy defaults, profiling restrictions, limits on nudge techniques.
  • Data protection impact assessment where required.
  • Do not claim to exclude minors if the platform demonstrably has them.

Phase 9 — Marketplaces

  • Seller verification for high-volume sellers.
  • Seller contact information disclosed to consumers.
  • Prohibited items list mapped to underlying regulations, updated as they change.
  • Product safety and recall monitoring for regulated categories.
  • Assess whether operational control makes the platform a "seller" for product liability — fulfillment, pricing, and holding out, not listings.
  • Counterfeit program with verified brand accounts and seller-level action.

Phase 10 — Platform's own speech

  • Safety page accurate. (Unprotected by § 230; within 15 U.S.C. § 45.)
  • Marketing claims about moderation, verification, and safety verified against practice.
  • Advertiser-facing claims about reach, viewability, and brand safety supportable.
  • Help center descriptions match actual process.
  • Creator program terms formulaic rather than editorial — commissioning specific content moves toward being a content provider.
  • Endorsement disclosure required and monitored under 16 C.F.R. Part 255.

Phase 11 — Incident response

  • Who decides, who is notified, what is preserved, who communicates externally.
  • Preservation trigger, especially for child safety and threat categories.
  • Law enforcement referral standard and named on-call decision maker.
  • Regulator and press communication owner.
  • Post-incident review with findings assigned to owners.

Phase 12 — Annual review

  • DMCA agent registration verified.
  • Repeat infringer terminations confirmed in the data.
  • Terms compared line by line against actual process.
  • Safety and marketing representations re-read as a regulator would.
  • New intake fields reviewed.
  • Product changelog compared against the design review log.
  • Transparency report produced.
  • Moderation consistency sampled.
  • Appeals backlog checked.
  • Subpoena log reviewed against standard.
  • Prohibited items list updated.
  • New jurisdictions assessed for obligations.
  • Incident plan names and rotations current.
  • Every finding assigned an owner and a date.

Phase 13 — Diligence package

Assemble before a financing or sale process starts:

  • DMCA registration with current expiration
  • Repeat infringer policy and termination data
  • All historical terms versions with acceptance records
  • Public and internal moderation policies
  • Enforcement statistics and published transparency reports
  • Complete legal-process log
  • All regulatory inquiries, resolved and open
  • Litigation history including pre-suit resolutions
  • Design review log for minors-facing features
  • Age assurance approach and minor-user data
  • Creator and advertising program terms
  • Marketplace seller verification practices and safety incidents

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