Bipartisanship isn’t always a force for good. See how plaintiff attorneys are trying to exploit political fury at Silicon Valley and online sex-trafficking to blow a hole in a law that has been crucial to internet freedom.
The House this week passed legislation that would create a carve-out to Section 230 of the Communications Decency Act of 1996 for online sex trafficking. Senator Rob
(R., Ohio) has introduced a companion bill that has 66 co-sponsors. Section 230 says “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.”
In short, current law bars states and trial lawyers from suing websites for content created by their users—such as customer reviews, social-media posts and reader comments. But Section 230 doesn’t shield websites from federal criminal prosecutions. Nor does it preclude state and private enforcement against websites found “responsible, in whole or in part, for the creation or development of information provided through the Internet.”
Congress wrote Section 230 because Members understood that websites couldn’t review every piece of content published by users for compliance with myriad state laws. The problem is that judges have sometimes interpreted the law too narrowly.
A California court and the First Circuit Court of Appeals have dismissed lawsuits against Backpage, the world’s second biggest classified ad website that became a cover for sex traffickers. The courts ruled Backpage was legally immune under Section 230. But a report last year by the Senate Homeland Security Committee says Backpage was involved in 73% of child trafficking reports received by the National Center for Missing and Exploited Children.
Backpage “has maintained a practice of altering ads before publication by deleting words, phrases, and images indicative of criminality, including child sex trafficking” and concealed “its editing practices,” the report notes. The company’s CEO allegedly instructed employees to scrub local ads in South Carolina for “sex for money” language, though Backpage didn’t reject the ads. (Backpage says that it doesn’t exercise control over the sex ads.)
Yet neither the California nor federal judge was presented with the evidence in the Senate report that Backpage had edited ads to elude law enforcement. And in light of new evidence, a federal judge in Boston is considering allowing another case against Backpage to proceed.
Yet plaintiff attorneys are trying to capitalize on public outrage against Backpage to jam through legislation that would erode Section 230. The House and Portman bills would let plaintiffs sue websites that allegedly assist, support or facilitate sex trafficking. The rub is that plaintiffs would merely need to argue that the website “should have known” that users were engaging in criminal activity.
Most website operators are aware that people use their platforms for nefarious purposes, but ferreting out criminal activity isn’t always easy. While algorithms can help, human judgment is often necessary. Google plans to hire 10,000 employees to review YouTube videos for inappropriate content.
Revising Section 230 for sex-trafficking could open up a Pandora’s box. Small websites might create overly restrictive screens that filter out non-objectionable content such as ads to help sex-trafficking victims. This could also make it harder to ask other countries to provide internet companies legal immunity for user content.
IBM’s vice-president of government and regulatory affairs told U.S. Trade Representative
that “it seems clear that given the public’s increasing concerns about online responsibility and accountability, there is no longer a consensus in the United States that internet media companies should enjoy blanket immunity from legal liability.”
If Congress provides a carve-out for sex-trafficking, courts might conclude that Section 230 was intended to be applied narrowly for other crimes and make it harder to prosecute websites complicit in those. This could cause a gradual erosion in Section 230 as groups petition Congress to single out more crimes. Google and
originally opposed the Senate bill for these reasons, but they caved after getting keelhauled by Senators amid the controversy over Russian interference in the 2016 election.
A Justice Department letter to House Judiciary Chairman
this week raised concerns about the “unintended consequences” of amending Section 230. Justice noted that while perhaps well-intended, some provisions of the House bill “may be broader than necessary” and its retroactive application could be unconstitutional.
Justice last year initiated a grand jury investigation into Backpage’s sex-trafficking, and courts may correctly decide the case in due course. If lawmakers want to help sex-trafficking victims, they could pass legislation clarifying that Section 230 was never intended to shield websites that actively facilitate crime. The House and Senate bills would create more problems than they fix.
Appeared in the March 3, 2018, print edition.