Seattle - The Internet Archive has filed a federal challenge to a new Washington State law that intends to make online service providers criminally liable for providing access to third parties' offensive materials.
The Electronic Frontier Foundation (EFF) is representing the Internet Archive in order to block the enforcement of SB 6251, a law aimed at combatting advertisements for underage sex workers but with vague and overbroad language that is squarely in conflict with federal law. Procedurally, the Internet Archive lawsuit was filed as an intervention into a similar suit, Backpage.com v. McKenna, filed last week.
"The Internet Archive, as an online library, archives the World Wide Web and other digital materials for researchers, historians, and the general public," said Brewster Kahle, Digital Librarian and founder of the Internet Archive. "We strongly support law enforcement efforts to combat child sex trafficking, but this new law could endanger libraries and other entities that bring access to websites and user-generated content."
SB 6251 was passed with the hope of criminalizing the dissemination of underage sex trafficking ads and imposing a requirement to confirm the ages of individuals in such ads prior to publication. The law, however, is fraught with problems. As written, the vaguely-worded statute – making it a felony to "directly or indirectly" provide access to any material that might constitute an "explicit or implicit" commercial offer for sex – could be read to apply not only to posters but to neutral entities that provide access to online information, including ISPs, Internet cafes, and libraries. This would result in a chilling effect as such entities begin feeling pressured to censor protected online speech in order to safely stay on the right side of the unclear law.
Washington's new statute also squarely conflicts with established federal law – Section 230 of the Communications Decency Act – that was passed with the dual aims of protecting Internet intermediaries from liability for most of what their users do and establishing a clear, national Internet policy to avoid the development of a confusing patchwork of state laws. If allowed to stand, SB 6251 would undermine this important Congressional policy decision that directly fosters free speech, innovation, and the dissemination of knowledge online. It would also set a dangerous precedent allowing individual states to regulate the Internet as each sees fit, establishing a speech-chilling "race to the bottom" with service providers restricting speech according to the most invasive state law on the books. Indeed, in the wake of SB 6251's passage, Tennessee passed a similar bill set to go into effect in July, and New York and New Jersey are considering their own proposed legislation.
"Laws passed with the laudable goal of combatting such a pernicious practice as child sex trafficking can nonetheless inflict collateral damage on the First Amendment," said EFF Senior Staff Attorney Matt Zimmerman. "Legislatures must do more than simply identify serious social ills but also prescribe solutions that are consistent with other important values. Clear legal protections for hosts and disseminators of third party content are bedrock legal principles that allow free speech to flourish online. While well intentioned, laws like SB 6251 simply take the wrong, dangerous approach."
Thanks to Venkat Balasubramani and Focal PLLC for their assitance as local counsel.
For the full motion to intervene:
For the full complaint from the Internet Archive:
Senior Staff Attorney
Electronic Frontier Foundation