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Stop SESTA: Section 230 is Not Broken

DEEPLINKS BLOG
September 6, 2017
Stop SESTA: 230 icon in phone

EFF opposes the Senate’s Stop Enabling Sex Traffickers Act (S. 1693) (“SESTA”), and its House counterpart the Allow States and Victims to Fight Online Sex Trafficking Act (H.R. 1865), because they would open up liability for Internet intermediaries—the ISPs, web hosting companies, websites, and social media platforms that enable users to share and access content online—by amending Section 230’s immunity for user-generated content (47 U.S.C. § 230). While both bills have the laudable goal of curbing sex trafficking, including of minor children, they would greatly weaken Section 230’s protections for online free speech and innovation.

Proponents of SESTA and its House counterpart view Section 230 as a broken law that prevents victims of sex trafficking from seeking justice. But Section 230 is not broken. First, existing federal criminal law allows federal prosecutors to go after bad online platforms, like Backpage.com, that knowingly play a role in sex trafficking. Second, courts have allowed civil claims against online platforms—despite Section 230’s immunity—when a platform had a direct hand in creating the illegal user-generated content.

Thus, before Congress fundamentally changes Section 230, lawmakers should ask whether these bills are necessary to begin with.

Why Section 230 Matters

Section 230 is the part of the Telecommunications Act of 1996 that provides broad immunity to Internet intermediaries from liability for the content that their users create or post (i.e., user-generated content or third-party content).

Section 230 can be credited with creating today’s Internet—with its abundance of unique platforms and services that enable a vast array of user-generated content. Section 230 has provided the legal buffer online entrepreneurs need to experiment with news ways for users to connect online—and this is just as important for today’s popular platforms with billions of users as it is for startups.

Congress’ rationale for crafting Section 230 is just as applicable today as when the law was passed in 1996: if Internet intermediaries are not largely shielded from liability for content their users create or post—particularly given their huge numbers of users—existing companies risk being prosecuted or sued out of existence, and potential new companies may not even enter the marketplace for fear of being prosecuted or sued out of existence (or because venture capitalists fear this).

This massive legal exposure would dramatically change the Internet as we know it: it would not only thwart innovation in online platforms and services, but free speech as well. As companies fall or fail to be launched in the first place, the ability of all Internet users to speak online would be disrupted. For those companies that remain, they may act in ways that undermine the open Internet. They may act as gatekeepers by preventing whole accounts from being created in the first place and pre-screening content before it is even posted. Or they may over-censor already posted content, pursuant to very strict terms of service in order to avoid the possibility of any user-generated content on their platforms and services that could get them into criminal or civil hot water. Again, this would be a disaster for online free speech. The current proposals to gut Section 230 raise the exact same problems that Congress dealt with in 1996.

By guarding online platforms from being held legally responsible for what thousands or millions or even billions of users might say online, Section 230 has protected online free speech and innovation for more than 20 years.

But Congress did not create blanket immunity. Section 230 reflects a purposeful balance that permits Internet intermediaries to be on the hook for their users’ content in certain carefully considered circumstances, and the courts have expanded upon these rules.

Section 230 Does Not Bar Federal Prosecutors From Targeting Criminal Online Platforms

Section 230 has never provided immunity to Internet intermediaries for violations of federal criminal law—like the federal criminal sex trafficking statute (18 U.S.C. § 1591). In 2015, Congress passed the SAVE Act, which amended Section 1591 to expressly include “advertising” as a criminal action. Congress intended to go after websites that host ads knowing that such ads involve sex trafficking. If these companies violate federal criminal law, they can be criminally prosecuted in federal court alongside their users who are directly engaged in sex trafficking.

In a parallel context, a federal judge in the Silk Road case correctly ruled that Section 230 did not provide immunity against federal prosecution to the operator of a website that hosted other people’s ads for illegal drugs.

By contrast, Section 230 does provide immunity to Internet intermediaries from liability for user-generated content under state criminal law. Congress deliberately chose not to expose these companies to criminal prosecutions in 50 different states for content their users create or post. Congress fashioned this balance so that federal prosecutors could bring to justice culpable companies while still ensuring that free speech and innovation could thrive online.

However, SESTA and its House counterpart would expose Internet intermediaries to liability under state criminal sex trafficking statutes. Although EFF understands the desire of state attorneys general to have more tools at their disposal to combat sex trafficking, such an amendment to Section 230 would upend the carefully crafted policy balance Congress embodied in Section 230.

More fundamentally, it cannot be said that Section 230’s current approach to criminal law has failed. A Senate investigation earlier this year and a recent Washington Post article both uncovered information suggesting that Backpage.com not only knew that their users were posting sex trafficking ads to their website, but that the company also took affirmative steps to help those ads get posted. Additionally, it has been reported that a federal grand jury has been empaneled in Arizona to investigate Backpage.com. Congress should wait and see what comes of these developments before it exposes Internet intermediaries to additional criminal liability.

Civil Litigants Are Not Always Without a Remedy Against Internet Intermediaries

Section 230 provides immunity to Internet intermediaries from liability for user-generated content under civil law—whether federal or state civil law. Again, Congress made this deliberate policy choice to protect online free speech and innovation.

Congress recognized that exposing companies to civil liability would put the Internet at risk even more than criminal liability because: 1) the standard of proof in criminal cases is “beyond a reasonable doubt,” whereas in civil cases it is merely “preponderance of the evidence,” making the likelihood higher that a company will lose a civil case; and 2) criminal prosecutors as agents of the government tend to exercise more restraint in filing charges, whereas civil litigants often exercise less restraint in suing other private parties, making the likelihood higher that a company will be sued in the first place for third-party content.

However, Section 230’s immunity against civil claims is not absolute. The courts have interpreted this civil immunity as creating a presumption of civil immunity that plaintiffs can rebut if they have evidence that an Internet intermediary did not simply host illegal user-generated content, but also had a direct hand in creating the illegal content. In a seminal 2008 decision, the U.S. Court of Appeals for the Ninth Circuit in Fair Housing Council v. Roommates.com held that a website that helped people find roommates violated fair housing laws by “inducing third parties to express illegal preferences.” The website had required users to answer profile questions related to personal characteristics that may not be used to discriminate in housing (e.g., gender, sexual orientation, and the presence of children in the home). Thus, the court held that the website lost Section 230 civil immunity because it was “directly involved with developing and enforcing a system that subjects subscribers to allegedly discriminatory housing practices.” Although EFF is concerned with some of the implications of the Roommates.com decision and its potential to chill online free speech and innovation, it is the law.

Thus, even without new legislation, victims of sex trafficking may bring civil cases against websites or other Internet intermediaries under the federal civil cause of action (18 U.S.C. § 1595), and overcome Section 230 civil immunity if they can show that the websites had a direct hand in creating ads for illegal sex. As mentioned above, a Senate investigation and a Washington Post article both strongly indicate that Backpage.com would not enjoy Section 230 civil immunity today.

SESTA and its House counterpart would expose Internet intermediaries to liability under federal and state civil sex trafficking laws. Removing Section 230’s rebuttable presumption of civil immunity would, as with the criminal amendments, disrupt the carefully crafted policy balance found in Section 230. Moreover, victims of sex trafficking can already bring civil suits against the pimps and “johns” who harmed them, as these cases against the direct perpetrators do not implicate Section 230.

Therefore, the bills’ amendments to Section 230 are not necessary—because Section 230 is not broken. Rather, Section 230 reflects a delicate policy balance that allows the most egregious online platforms to bear responsibility along with their users for illegal content, while generally preserving immunity so that free speech and innovation can thrive online.

By dramatically increasing the legal exposure of Internet intermediaries for user-generated content, the risk that these bills pose to the Internet as we know it is real. Visit our STOP SESTA campaign page and tell Congress to reject S. 1693 and H.R. 1865!

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