Newark, NJ - The Internet Archive has filed a new legal challenge against a New Jersey state law that aims to make online service providers criminally liable for providing access to third parties' materials, conflicting directly with federal law and threatening the free flow of information on the Internet. A hearing on the Internet Archive's request for a preliminary injunction against the law is set for 10am Friday at the federal courthouse in Newark.
This is the second time that the Electronic Frontier Foundation (EFF) is representing the Internet Archive in order to block enforcement of a law that's aimed at combatting online ads for underage sex workers but instead includes language that could put online libraries and other service providers at risk. The New Jersey statute is an almost carbon copy of a law successfully blocked by EFF and the Internet Archive last year.
"The Internet Archive strongly supports law enforcement efforts to combat child sex trafficking, but when lawmakers aren't careful, they can undermine the companies that foster the production and exchange of legitimate online content," said Digital Librarian Brewster Kahle, founder of the Internet Archive. "Our mission is to archive the World Wide Web and other digital materials for researchers, historians, and the general public. For us and others to do this work, we need laws whose effects fall only on lawbreakers so we can concentrate on the preservation of history."
The New Jersey law (section 12(b)(1) of the "Human Trafficking Prevention, Protection, and Treatment Act") could impose stiff penalties – up to 20 years in prison and steep fines – on ISPs, Internet cafes, and libraries that "indirectly" cause the publication, dissemination, or display of content that contains even an "implicit" offer of a commercial sex act if the content includes an image of a minor. Especially given the vagueness of the standard, service providers would feel enormous pressure to block access to broad swaths of otherwise protected material in order to minimize the risk of such harsh penalties.
The New Jersey law squarely conflicts with both the First Amendment and federal statute: Section 230 of the Communications Decency Act (CDA 230). The First Amendment bars vague criminal statutes because of the obvious risk of sweeping and improper application, as well as the resulting chilling effect on behalf of people subject to the law. Moreover, CDA 230 ensures that Internet intermediaries are protected from liability for what their users do and establishes clear national Internet policy to avoid a confusing patchwork of state laws.
"Section 230 of the Communications Decency Act requires states to direct their law enforcement efforts towards punishing criminals for their actions, not the providers of the online services that they use," said EFF Senior Staff Attorney Matt Zimmerman. "The Internet is the greatest tool for speech and communications ever invented, and it can be used for everything from inspirational to criminal purposes. However, targeting entities like the Internet Archive and other service providers for users' bad behavior is enormously shortsighted and puts at risk the socially beneficial content that their services facilitate. Congress got it right: online speech is best protected when the states leave providers alone."
"Free speech is threatened when states pass vague and draconian statutes like this one," said Frank Corrado, co-counsel with EFF on behalf of the Internet Archive in this case. "It's not enough to identify a serious problem like sex trafficking. To fight it, especially when speech is involved, the state has to be careful with its solution. The state of New Jersey clearly did not do that here."
Backpage.com, also a plaintiff in last year's successful court challenge to Washington's law, has separately filed suit asking the court to set aside the New Jersey statute.
For more on the New Jersey case, Internet Archive v. Hoffman
For more on the Washington case, Internet Archive v. McKenna:
Senior Staff Attorney
Electronic Frontier Foundation