A law celebrated for making the Internet a viewpoint-neutral platform for commerce and ideas received its first major edit this month after sex trafficking victims pleaded for the right to sue companies that profited from their abuse.
The new law, known as FOSTA/SESTA, acronyms for House and Senate bills that were combined, amends Section 230 of the Communications Decency Act of 1996 to say companies do not have immunity for certain sex-crime content posted by third parties.
Previously, Section 230 worked as a single-sentence shield, saying: “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.”
Courts generously interpreted Section 230, finding that if a company didn’t produce allegedly malicious material themselves, it was not liable.
Judges determined the law allowed eBay to avoid liability to fake autographs, Google for false advertising, and Twitter for posts from Islamic State terrorists. Although preempted by federal criminal and copyright law, Section 230 let web platforms mostly police themselves.
Previous attempts to modify Section 230 were met with dire warnings that companies such as Facebook would overzealously self-censor rather than risk multimillion-dollar judgments. And when FOSTA/SESTA passed, the prediction quickly proved true.
On March 21, hours after Senate passage, Reddit deleted four forums for discussion of sex work, including r/Escorts, r/MaleEscorts, r/Hookers, and r/SugarDaddy, even though much of the content reportedly had nothing to do with illegal conduct. On March 23, Craigslist deleted its personal ad sections, which were among the Internet’s earliest online dating and hookup tools, though sometimes used by people who advertised erotic massages for a price.
Now, once Section 230 has been amended, those working against revenge porn, cyberbullying, fake news, and online terrorism are working to replicate the new law for their area.
Background
The Internet is young enough that the author of Section 230 still works as a senator.
Sen. Ron Wyden, D-Ore., wrote the law after a court ruled against 1990s chatroom provider Prodigy, which had been sued for defamation by an investment firm run by the fraudster who inspired Leonardo DiCaprio’s character in “Wolf of Wall Street.” Comments accused the firm of deceptive business practices.
Federal criminal law always trumped Section 230, meaning creating a new crime offered a way to reduce its scope. FOSTA/SESTA took both approaches, creating a new crime of “promotion or facilitation of prostitution and reckless disregard of sex trafficking,” punishable by up to 25 years in prison, while also amending Section 230 to say there’s no liability exception in cases involving sex trafficking, child porn, or “promotion or facilitation of prostitution.”
Wyden urged his colleagues not to change the law, arguing others would want their own carve-outs. Although Facebook endorsed the bill, Wyden alleged it was because removing protection “will pull up the ladder in the tech world, leaving the established giants alone at the top.”
“I fear this bill will set off a chain reaction that leads Congress to cut away more categories of behavior from Section 230, and dismantle the legal framework that’s given the United States the position it holds as a tech-economy superpower,” Wyden warned.
Only Sen. Rand Paul, R-Ky., joined Wyden in voting “no.”
Experts and interested parties say that amending Section 230 once will make it easier to do so again.
“It is a huge psychological deal,” said Alan Rozenshtein, a visiting law professor at the University of Minnesota. “The move from zero to one is so much harder than from one to two, two to three. It’s so much harder to break that precedent, that Section 230 is this untouchable Magna Carta-like document for the Internet.”
“When we look back 10 years from now, we will look at this period as an important turning point,” Rozenshtein said. “I think what we’re seeing is that Silicon Valley’s legal and regulatory exceptionalism that they’ve enjoyed for the past 20 years — that they’re really smart and can self-regulate — that is over.”
Widely discussed carve-outs of Section 230 could include cyberbullying, election-related and fake-news activity, and terrorism. “There’s no doubt there’s going to be a terrorism version of this,” Rozenshtein said.
But there’s also a question of whether the law needs to be totally repealed and replaced with language addressing the knowledge and intent of platform operators.
What’s Next?
Robert Tolchin, a New York lawyer suing Facebook on behalf of terror victims, argues Section 230 was interpreted too broadly by courts. He believes immunity shouldn’t apply overseas, or negate the Anti-Terrorism Act, which allows people to sue companies aiding terrorism.
Tolchin represents U.S. citizens victimized by terrorism in Israel and France, and said it doesn’t make sense to have immunity for companies such as Facebook that arguably provide services to criminals when other companies face liability.
“Would you ask the same question if a company was selling bullets to Hamas?” he said. “When you give someone complete immunity, that gives them the power to do whatever they feel like or be as careless as you like, and that is what’s going on with Facebook and Twitter now.”
Tolchin lost a federal ruling in May 2017 in a pair of cases he filed on behalf of U.S. and Israeli citizens victimized by Hamas. The judge found Section 230 “prevents courts from entertaining civil actions that seek to impose liability on defendants like Facebook for allowing third parties to post offensive or harmful content or failing to remove such content once posted.”
Tolchin is appealing to the U.S. Court of Appeals for the 2nd Circuit, which he hopes will break with other circuits by finding that the Anti-Terrorism Act holds primacy. Tolchin also represents family members of Nohemi Gonzalez who sued Google. Gonzales, a 26-year-old student, was killed in 2015 by Islamic State terrorists at a Paris restaurant. Gonzalez’s relatives argued Google was liable because its YouTube platform was used by the terrorists. But Google moved to dismiss the case, citing Section 230, and won an October ruling in California.
Tolchin said he’s not sure Internet companies should have immunity for third-party content at all, but at the same time expressed concern about FOSTA/SESTA squeezing sex workers into less-safe situations. He believes terrorism victims deserve a path to sue, but that there may be even more political appetite to address election-related activity of foreign countries.
Joshua Arisohn, an attorney who sued Twitter on behalf of families of two Americans murdered by a Jordanian policeman in 2015 — claiming the social platform didn’t do enough to remove Islamic State content — argues carve-outs may not be enough.
“It’s probably time for full repeal at this point. When 230 was enacted, these were fledgling companies. Now, they are some of the biggest and most powerful companies in the world,” said Arisohn, who lost a 3-0 ruling before the U.S. Court of Appeals for the 9th Circuit in January.
“At the very least, there should be a carve-out for when these companies have knowledge of the misdeeds. If one of their millions of users does something improper and Twitter doesn’t know about it, there’s a reasonable argument that Twitter shouldn’t be liable. But once Twitter knows about the illegal conduct, it should be required to take meaningful steps to stop it,” he said.
Arisohn said Section 230 has had a serious, negative impact on victims of terrorism.
“Victims of terrorism can’t obtain justice by suing the terrorists themselves. These groups are overseas, and it’s hard to reach their assets,” he said. “If you provide material support to a terrorist organization, under the Anti-Terrorism Act, you can be held responsible for the attacks that group carries out. Unfortunately, courts read the [Communications Decency Act] as blocking these kinds of lawsuits when the entities providing material support to terrorists were social media companies.”
Mary Anne Franks, a University of Miami law professor who helped write pending federal revenge porn legislation, said it’s time for a fundamental rethink of Section 230.
“The fact that Section 230, long believed to be sacred, has now been amended does indicate that the era of the untouchable online intermediary may be over. That is not an era to be mourned, but FOSTA’s approach is far from ideal. Sex trafficking is only one of the many ills facilitated by online intermediaries, including revenge porn, disinformation, doxxing, sextortion, data mining, and election tampering,” she said.
“What is needed is reform that holds online intermediaries that knowingly facilitate, promote, or benefit from illegal activity to the same standards of accountability as offline intermediaries,” Franks said. “There’s no real justification for this kind of piecemeal approach. It doesn’t get to the root of the problem … it creates uncertainty in the law as we wait to see what the next exception is going to be, and it turns the debate about the merits of Section 230 into a debate about the merits of sex trafficking and prostitution laws.”
Franks said she believes “the tech industry and civil liberties groups’ radically expansive interpretation of 230 contributed to the overcorrection of FOSTA.”
After talk of federal revenge porn legislation evoked concern about modifying Section 230, the bill Franks helped draft with Rep. Jackie Speier, D-Calif., sidesteps the issue by creating a new proposed federal crime for non-consensual distribution of sensitive images. Franks further designed a civil liability exemption for platforms unless they “intentionally solicit, or knowingly and predominantly distribute, content” that the service knows is a violation of the law.
“We didn’t amend Section 230 because there was no need to. The Section 230 obstacle disappears on its own when revenge porn is criminalized under federal law,” Franks said.
Goodbye, regulation-free Internet?
The anti-sex trafficking push that blew the first hole into Section 230 immunity arrived the same month Facebook CEO Mark Zuckerberg appeared before Congress to promise greater efforts to safeguard user data and to censor anonymous content that may originate in Russia.
“The everything-goes free speech zone of the early Internet may no longer be compatible with a society that wants to be protected from speech and conduct it doesn’t like,” said Rozenshtein, the University of Minnesota law professor.
Rozenshtein said he doesn’t believe a cleanup on mainstream sites such as Facebook and Twitter would force an evolution of the Internet by sending users in search of new, sophisticated platforms for expression. Although criminals will seek out new platforms, “This will change the behavior of normal people, and those people are locked into the normal platforms,” he said.
“The ‘con’ is censorship,” Rozenshtein said. “What is terrorism? Is it terrorism to say that Israel should not have a right to exist? Some might view it as aiding and abetting Hamas, a terrorist organization. Some may view it as perfectly legitimate political speech…. Now, at least [web platforms] can maintain a neutral stance.”
On the horizon are even deeper changes to how the Internet works.
Not only are there proposals to expand liability for allegedly harmful posts, but also proposals to allow individuals to force web platforms to remove content about themselves that they dislike.
The U.S. debate over a so-called “right to be forgotten” began recently with state legislation in California.
“Europe is a laboratory for us,” Rozenshtein said. “We’re so scared of government regulation and so in love with Silicon Valley that we’re treating this with the utmost care and sensitivity. … In Europe, it’s not their companies.”
Democratic Assemblyman Marc Levine, sponsor of the California right to be forgotten bill, said “regulations for big tech are at an early stage.”
“Big tech has created Michel Foucault’s panopticon, and we are all in a surveillance state,” he said, referring to a circular prison allowing full view of the inmates. “Foucault was concerned about how it affected discipline, but now, people are suddenly concerned about photos and the content they and others have generated … when we want to talk about how we are being surveilled, it’s not necessarily by the state, but by the wealthiest corporate interests in the history of the world.”
